Montana’s Recommended Forest Priorities Stand

Sent to me from a reader, this decision allows the Montana Governor’s recommendations for forest work to be legal. That doesn’t mean too much, as Federal projects still have to be crafted to survive the gauntlet of legal challenges ahead.

http://missoulian.com/news/local/judge-oks-bullock-s-right-to-designate-priority-forest-work/article_2019088d-0518-5811-a502-ece327d5e2c2.html

This does not settle the conflict over whether there is actually a forest health problem, or not. Many eco-groups don’t buy into any kind of a forest health “emergency” situation, in favor of more snag recruitment and diversity.

3 Comments

  1. Interesting, thanks for posting. A couple points, first perhaps worth noting that this is an (elected) Montana District Court judge (one of 56), i.e. the case was in a state not federal court (not that Larry said otherwise, but maybe it isn’t obvious).

    The Missoulian is incorrect when it says “Gov. Steve Bullock was not wrong to privately gather opinions before recommending 5 million acres of Montana forest for priority attention from the U.S. Forest Service, according to a district court judge”, because the judge did not determine any such thing. She determined the case was moot and dismissed it (mootness doctrine: principle whereby courts will not decide moot cases, i.e., cases in which there is no actual controversy, which is basically what she determined. She never decided the issue).

    Was the judge correct? Maybe, although arguably plaintiffs could argue that this scenario is “capable of repetition yet avoiding review” (best example Roe v. Wade, where petitioner was no longer pregnant but might be again in future)… would that fly? I dunno.

    But like Larry said, the federal laws are still on the table. Is a NEPA violation already implicated because of lack of scoping etc.? Not clear to me, maybe Jon or someone else will chime in…

  2. The judge didn’t actually address whether the Governor’s recommendations were legal:
    “‘However, the court concludes that issues raised in plaintiffs’ complaint are moot, and the court is therefore without jurisdiction to provide any of the requested relief.”
    “(The judge) wrote that because the Forest Service’s call for priority recommendations was a one-time request made directly to the governor, there was no formal or repeatable process for him to follow.”

  3. Looks like our comments passed in the mail.

    As for NEPA, I don’t see a federal action here yet (despite the reference to Forest Service “rubber stamping”). The state made a recommendation to a federal agency. Presumably the Forest Service will act by proposing projects in these recommended areas, and then conducting scoping. Their “purpose and need” for such projects might mention these recommendations. Usually, courts won’t question how an agency comes up with its purposes under NEPA. I would hope that they are also based on what the relevant forest plan says, as NFMA intended.

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