Spotlight on Forest Litigation

The U.S. Forest Service often blames the lack of employees and money for its inability to implement more (and larger) forest projects that mitigate catastrophic wildfire, insect infestations and disease.  Much of this is due to the growing, unsustainable costs of fighting today’s mega-fires.

Yet it’s also estimated personnel spend more than 40 percent of their time conducting planning and analysis- completing paperwork, in other words- instead of managing our federal forests and rangelands.

A recent Federal Lands Subcommittee hearing found excessive lawsuits and vague statutory authorities are forcing the agency to make environmental analysis documents “bullet-proof” in fear of litigation. Litigation, or just the mere threat of a lawsuit, comes at the expense of forest health, our rural communities and American taxpayers.

During the hearing Lawson Fite of the American Forest Resource Council also noted most forestry projects are subject to the National Environmental Policy Act (NEPA), which requires agencies to prepare a detailed Environmental Impact Statements (EIS) for actions “significantly affecting the quality of the human environment.” If an action does not result in “significant” impacts,” an Environmental Assessment (EA) can be used.

Fite says the differences between these two types of documents can be substantial. An EIS has additional procedural requirements and takes much longer. According to a 2014 Government Accountability Office report, the average EA takes the Forest Service 18 months to complete. Government-wide, the average time frame for an EIS is 4.6 years. The same report indicates an EIS can cost many times more than an EA, by factors of ten or more. Together, BLM and the Forest Service produced 39 percent of all EISs in 2014.

Though the government wins 86 percent of NEPA challenges, the Forest Service has a much lower batting average-winning in 2014 only 54 percent of the time. Naturally, anti-management groups are successfully attacking smaller and smaller projects, claiming an EIS is required due to factors such as effects on sensitive species or on areas that these groups deem sensitive.  In an effort to begin addressing the situation, Congress has provided the Forest Service and BLM more Categorical Exclusions (CE) to streamline environmental review process for routine forestry projects.  However, more must be done to address the analysis and litigation paralysis facing land management agencies.

Federal land managers are also hamstrung by costly and duplicative “consultations” required between agencies under the Endangered Species Act. The “Cottonwood” case alone has tied up over 80 vegetation management projects because the Ninth Circuit determined the Forest Service must consult with the U.S. Fish & Wildlife Service at the planning level, not the project level, which can take years. The unintended consequences of the Equal Access to Justice Act that enables environmental attorneys to reap awards from the federal government, is also blamed.

During the hearing Certified Forester Lyle Laverty summed up the consequences:

We are bankrupting the future. Lack of active management on America’s National Forests threatens our watersheds and communities. It also increases future environmental impacts such as lost economic opportunity resulting from blackened landscapes and subsequent flooding. America’s green infrastructure is on life support, perhaps even on the brink of ecological collapse.

U.S. Senator Steve Daines also highlighted the issue of litigation when he pressed U.S. Forest Service Chief Tom Tidwell on forest management reforms to create much needed revenues for counties in his state.

During a U.S. Senate Committee on Appropriations Subcommittee on the Department of the Interior, Environment, and Related Agencies hearing, Daines questioned Tidwell on reversing the Ninth Circuit Court of Appeals decision in Cottonwood Environmental Law Center v. U.S. Forest Service that negatively impacts forest health, recreation, watershed and habitat protection.

“We can’t get logs to the mills – it’s a sad, sad state of affairs and it is because of these extreme environmental groups who are litigating many of our sales that we have right now in Montana,” Daines remarked. “We aren’t taking care of the forest – then we see them burn. We can reduce the wildfire risk, as we know, by actively managing our forests.”

“I have introduced legislation to statutorily reverse the disastrous Ninth Circuit Court decision in Cottonwood Environmental Law Center vs. U.S. Forest Service,” Daines continued. “According to the Obama Administration, this decision has the ‘potential to cripple’ federal land management across Ninth Circuit states. Citing the Cottonwood decision, courts have already halted four forest health projects in Montana.” You can urge Congress to support Senator Daines’ legislation by clicking here.

Spotlight on Forest Litigation