Michael J. Mortimer

Hazard tree liability in the United States: Uncertain risks for owners and professionals

Abstract The liability United States (U.S.) tree owners face from hazardous trees on their private properties has and continues to undergo a transformation. The traditional common law legal test focused upon whether a tree owner had acted to create a hazardous condition on the property. The modern trend is towards a test that imposes greater responsibility and greater uncertainty on tree owners and arborists. Abandoning the natural/artificial distinction, the modern test, adopted in half the U.S. jurisdictions, imposes general principles of negligence on tree owners. This paper discusses the U.S. legal context for hazardous trees, particularly the impacts on individual tree owners. It closes by addressing various practical means to minimize the risks associated with the modern legal standards, both for susceptible tree owners, and for professionals assessing the subject property.

Constructing the public: the ‘substantive sieve’ and personal norms in US Forest Service Planning

In fulfilling its public involvement requirements under the National Environmental Policy Act (NEPA) the US Forest Service sometimes favours scientific, technical or legally-based public input over comments that explicitly express the values or preferences of the public. We trace the roots of this tendency to the Council on Environmental Qualitys (CEQ) NEPA regulations and to agency planning guidelines that direct agency employees to address only ‘substantive’ or ‘significant’ comments. We term this guidance and the tendency to favour certain types of public input the ‘substantive sieve’, and show how it may influence agency constructions of the public. We discuss the implications of our findings in the context of agency NEPA public involvement processes.

From the office to the field: areas of tension and consensus in the implementation of the National Environmental Policy Act within the US Forest Service.

We conducted an online survey (n = 3321) followed by five focus groups with Forest Service employees involved in compliance with the National Environmental Policy Act (NEPA) to explore agency views of how NEPA should be implemented within the agency. We filter these perceptions through the lenses of different functional groups within the agency, each with its own role in agency compliance with NEPA and its own suite of perceived accountabilities. In doing so, we uncover areas of consensus regarding valued practices as well as tensions between employees with different roles in NEPA compliance. General consensus exists regarding the importance of the effective functioning of interdisciplinary teams, but opinions about what constitutes an effective team vary. Findings suggest that NEPA serves as a playing field for competing accountabilities felt by line officers, disciplinary specialists, and advisory personnel within the agency, as each attempts to exert influence over NEPA processes and their outcomes.

Perceptions of Legally Mandated Public Involvement Processes in the U.S. Forest Service

Results from an agency-wide survey of U.S. Forest Service personnel indicate that respondents in our sample engage in National Environmental Policy Act (NEPA) public involvement processes primarily to accomplish two goals. The most commonly supported goal was to inform and disclose as mandated by the act. The other goal reflected interests in managing agency relationships with various, often adversarial, publics. Respondents expressed variable views about how to conduct public involvement. Most favored informal meetings and/or formal agency-endorsed strategies, though some respondents favored strategies associated with avoiding or containing the public. Qualitative results suggest that variable views concerning how to go about public involvement are related to individual views of planning in general, the public, and administrative structures and processes. The study raises the question of which factors—the beliefs of those conducting public involvement, or the strategies of public involvement employed—most powerfully impact the outcomes of public involvement processes.

The Use of Recreation Planning Tools in U.S. Forest Service NEPA Assessments

U.S. Forest Service managers are required to incorporate social and biophysical science information in planning and environmental analysis. The use of science is mandated by the National Environmental Policy Act, the National Forest Management Act, and U.S. Forest Service planning rules. Despite the agency’s emphasis on ‘science-based’ decision-making, little is known about how science is actually used in recreation planning and management. This study investigated the perceptions of Forest Service interdisciplinary (ID) team leaders for 106 NEPA projects dealing with recreation and travel management between 2005 and 2008. Our survey data show how managers rate the importance of social and biophysical science compared to other potential ‘success factors’ in NEPA assessments. We also explore how team leaders value and use multi-disciplinary tools for recreation-related assessments. Results suggest that managers employ a variety of recreation planning tools in NEPA projects, but there appears to be no common understanding or approach for how or when these tools are incorporated. The Recreation Opportunity Spectrum (ROS) was the most frequently used planning tool, but the Visitor Experience and Resource Protection (VERP) framework was the most consistently valued tool by those who used it. We recommend further evaluation of the strengths and weaknesses of each planning tool and future development of procedures to select appropriate planning tools for use in recreation-related NEPA assessments.

Private Property Rights and Selective Private Forest Conservation: Could a Nordic Hybrid Policy Address a United States Problem?

Political and legal conflicts between the need for targeted private forest conservation and the continued assurance of private property rights in the U.S. presents a seemingly intractable resource management problem. Scandinavian use of habitat protection areas on private forests offers an additional tool that may be suitable for solving the historical and on-going tension found within U.S. efforts to reconcile desires to maintain lands in a forested condition while also respecting private property rights. This article presents a comparative cross-sectional policy analysis of Sweden, Finland, and the U.S., supported with a supplemental case example from the Commonwealth of Virginia. Similarities in all three countries among forest ownership patterns, use of public subsidies, and changing attitudes towards conservation are generally encouraging. Additionally, Virginia’s current consideration and development of state-wide forest policies focused on forestland and open space conservation suggests both a need and an opportunity to systematically assess the applicability of the Nordic forest reserve approach to local private forest conservation. Future research at a high-resolution, and specifically at the state level, should focus on the social and political factors that would ultimately determine the viability of a forest reserve program.

International Field Experiences Promote Professional Development for Sustainability Leaders.

Purpose – This paper aims to describe, explain and evaluate a graduate education program that provides international project experiences and builds competencies related to collaborative problem-solving, cultural capacity to work globally and sustainable development. Design/methodology/approach – Qualitative analysis of survey data from 28 students supplemented by observation and interviews conducted before, during and after a multi-week project and a ten-day trip to China in 2014. Supplemental data and contextual information were provided by a series of related projects and trips led by the authors in other cultural contexts including Brazil, China, India, South Africa and Turkey. Findings – Six pedagogic practices were perceived as effective by students and generate learning outcomes desired by faculty: authentic problems, learning cycles, shared inquiry, transdisciplinarity, exploration and engagement. Practical implications – The pedagogy was effective, especially the engagement pedagogy in which stude...

A Survey of Forestland Conservation Easements in the United States: Implications for Forestland Owners and Managers

Internationally, conservation easements are increasingly popular land management tools for private landowners, government agencies and non-governmental organizations seeking to preserve forests and other natural settings. This paper reports a study of the design and use of conservation easements by organizations and public agencies in the USA. More than 355 conservation organizations and 16 state agencies holding at least 3,598 forestland easements were identified. Demonstrated shortfalls in baseline forest inventories, record keeping, and professionally-developed management plans were evident on working forest easements. Failure to address these shortcomings runs the risk of jeopardizing the legitimacy of the easement approach even where favorable legal and tax conditions exist. Management restrictions varied broadly, with a minority of respondents prohibiting such techniques as clearcutting and salvage logging. Concerns for the use of chemicals, best management practices, and streamside management zones were commonly reflected in easement language, whereas logging road design and the cultivation of old-growth conditions remain largely undeveloped. Implications from the US experience, where easements are relatively well-developed, highlights the need for professional forestry advice—particularly for non-industrial or small-scale forest owners—in both easement development and implementation, the need for careful planning, and the need to carefully consider the respective goals of the forest landowners in crafting the easement documents. In the cases of developing nations, consideration of the differing needs of landowners may require increased flexibility in management documents.

Managing Montana's Trust Land Old-Growth Forests Practical Challenges in Implementing Scientific Policy

Management of old-growth forests on Montanas school trust forestlands has been characterized by conflicting values among various interest groups and uncertainty created by political and judicial involvement. Successful agency implementation of old-growth policy typically requires domination of the political environment by the management agency and its allies. Absent sufficient political support, the agency should pursue alternative combinations of strategies designed to maximize success in the inevitable legal disputes, such as explicitly acknowledging the role of politics in scientific management of the specific issue at hand and the uncertainties inherent in the science related to management of old-growth forests.

RESEARCH ARTICLE: Twenty Years of Forest Service National Environmental Policy Act Litigation

The USDA Forest Service is sued more often than any other federal agency under the National Environmental Policy Act of 1969 (NEPA). This analysis examines Forest Service land management cases initiated from 1989 to 2008 to understand how the agency fared in NEPA cases. Of the 1,064 completed cases, 671 (63.1%) involved a NEPA challenge. The agency won the final outcome of 343 cases (51.1%), lost 176 (26.2%), and settled 152 (22.7%). Case characteristic analyses indicate that case decisions peaked at the end of the 1990s, occurred mostly in the Ninth Circuit, and predominately involved vegetative management, forest planning, roads, recreation, and wildlife management activities. In addition to these general case outcomes, we conducted an in-depth analysis of the 411 cases where a judge or panel of judges specifically ruled on a NEPA challenge. The agency won the NEPA claim in 69.3% of these cases. The Forest Service was most successful litigating supplemental environmental impact statement cases and least successful in categorical exclusion cases. Most challenges to Forest Service NEPA implementation were based on environmental assessments (EAs) and environmental impact statements (EISs). The agency was more likely to win a direct and indirect effects EA challenge and a range of alternatives EIS challenge. Since the Forest Service accounts for a large portion of all NEPA litigation, this research enhances understanding of legal challenges to NEPAs implementation.