Colt Summit- Garrity Editorial

Here’s the link, thanks to Matthew Koehler for submitting this..

Guest column by MIKE GARRITY | Posted: Thursday, October 6, 2011
Government has to follow laws as well

How ironic is it that while the Missoulian was chastising the Alliance for the Wild Rockies for filing a lawsuit to protect the environment in its editorial last Sunday (Oct. 2) the Alliance, the Environmental Protection Agency and Montana’s Department of Environmental Quality had just reached an agreement in a lawsuit originally brought by the Alliance 14 years ago.

The agreement has huge benefits for cleaning up Montana’s rivers, streams and lakes that would not have happened without the lawsuit and subsequent settlement agreement. Here’s a direct quote from the Reuters article that appeared in the L.A. Times, the Chicago Tribune and other major papers and media outlets nationwide.

“Richard Opper, head of the Montana Department of Environmental Quality, credited the 14-year-old lawsuit brought by environmentalists with making the state ‘get its act together.’ ‘We lost the original case, and we deserved to lose,’ he told Reuters in a telephone interview on Monday. ‘In the old days, we weren’t following that federal law very well. Now we have a new attitude, and we are doing the right thing.’ ”

Opper’s quote and the credit he gives the Alliance for bringing the lawsuit is timely considering the Missoulian editorial board’s stance. More importantly, it brings the seminal issue to the forefront: We are a nation of laws, not a nation where a handful of “collaborators” can decide which laws will or won’t be followed. Government agencies, just like the rest of us, have to follow the law.

Had the “collaborative” Colt-Summit logging project – for which the Missoulian criticized the Alliance – followed federal law, the Alliance would have applauded it. Unfortunately, that’s not the case. The agency refused to follow the law or heed well-documented evidence. And so, as part of the process proscribed by law, we were forced to file a lawsuit in federal district court to stop this timber sale for the sake of taxpayers as well as the elk, fish, grizzly bears, lynx and a myriad of other old growth dependent species that rely on unlogged national forests.

Consider these points:

• The plan to log federally designated critical habitat for lynx and bull trout as well as prime grizzly habitat violates a host of federal laws including the National Environmental Policy Act, the National Forest Management Act and the Endangered Species Act.

• The Forest Service’s own analysis notes that 94 percent of the project is in an area that the Lolo Forest Plan requires to be managed for the benefit of grizzly bears as its top priority. The agency also admits that logging and the new roads that go with it will reduce important wildlife hiding cover and that similar logging on adjacent private lands has harmed big game and grizzly bear habitat. Yet, the agency and the collaborators who support the logging plan fail to explain how reduction of existing cover levels on our national forests can possibly be called “restoration.”

• Contrary to Forest Service claims, the logging destroys lynx habitat since it drives out the snowshoe hare and ground squirrels, upon which they prey. The Forest Service’s own research show that lynx do not use forest lands that have been recently clearcut or thinned. In fact, forests that have been logged in the Seeley-Swan Valley are avoided by lynx.

• The Forest Service’s own environmental assessment reveals that this timber sale will cost taxpayers over $1.5 million with little in return except the destruction of critical wildlife habitat. Given the current national debate over government spending, an expensive and destructive timber sale to benefit a for-profit corporation is not defensible.

• The Alliance and its environmental allies fully participated in the Colt Summit process, which is required before anyone can file a lawsuit challenging the Forest Service’s decision.

“Collaborators” do not make laws – and we all have to follow the law. The Missoulian would do its readers a favor by remembering that before it criticizes the Alliance for the Wild Rockies – or any other citizen group – for trying to get the federal government to follow the law.

Mike Garrity is executive director of the Alliance for the Wild Rockies.

34 thoughts on “Colt Summit- Garrity Editorial”

  1. Here’s my first question:

    If, in fact, the AWR was involved in the collaborative effort

    AND they raised these issues of legality

    THEN someone in the collaborative group must have had responses to these assertions that led them to make the decisions they did.

    SO could someone from the groups involved in the collaboration answer these assertions?
    I could look them up in the Record of Decision (which I have linked to before somewhere in the neighborhood of these comments here) but it would mean more coming directly from the folks involved.

    Unless you feel you cannot talk about it because it’s in litigation, which is a whole other problem. Anyway, I’d like to hear the opinion of someone from the collaborative group.

    My other issue is a logical one. If, at one time, litigation was useful in doing something, it does not follow that all litigation is therefore useful.

  2. At the risk of sounding like a historian, aka “old,” note that LITIGATION was the driving force behind EVERY significant Forest Service policy change of the last 50 years. Litigation led to clearcut reform. Litigation led to old-growth protection. Litigation led to the roadless rule. Litigation catalyzed the large state-wide wilderness bills of the 1980s. Litigation reformed pesticide use on national forests.

    What’s more challenging is to come up with significant forest policy reforms that were not catalyzed by litigation.

    • I agree with Andy.

      Concerning Sharon’s and others’ angst over litigation, it would be worthwhile considering what might be done to break Forest Service decisionmaking patterns that often lead (despite the distraction of collaboration sideshows) to litigation.

      My suggestion: End the practice of federal courts giving “deference” to the reliance by a federal agency in its decisionmaking on its own internal expertise. This creates an unlevel playing field in court, and because of that a strong reason is also created for an agency to believe that, in its decisionmaking process, it can succeed in ignoring or downplaying valid information that is contradictory to the desired bureaucratic outcome.

      If agencies were not afforded this deference I believe they would be much less likely to make illegal decisions, and that this would lead both to substantially less litigation and to decisions that better serve the public interest. Also, I expect some litigation would proceed more quickly without the added complexity presently introduced by deference issues.

      A further thought: Collaboration processes probably engender additional litigation because they too tend to create a climate where an agency will be led to think it can successfully skirt the law. Every collaboration process I have seen is structured (through its elite membership or process) so that substantive legal requirements are functionally ignored. Also, the effect of collaboration encouraging an agency to try to muscle-past the law is likely to be additional to the deference effect, resulting a very strong incentive to make decisions that will lead to litigation.

      Lastly: Deference is just an unlevel playing field, not a guarantee of a successful defense, and environmental lawsuits have been amazingly successful even with this uphill fight.

      • Actually, the courts really want to wash their hands of all these picky procedural details and conflicting science. The 9th Circuit Court’s announcement that they give Federal scientists deference was just a smoke screen. They continue to pretend that they know which science to follow, often ruling against the Forest Service. They also claim that they are “just following the rule of law”, implying that the laws are bad, and not their decisions. The fact that eco-groups are willing to wait for their favorite Judges become available indicates that the playing field is, indeed, not level at all. The 9th Circuit Court is well aware of their reputation and some of the blame that is heaped upon them. They can also see the forests getting exceedingly worse, over time. They can see the complexity and conflicts involved when lawsuits reach their “hallowed halls”. I do not think that the 9th Circuit Court will ever escape a significant portion of the blame, despite “following the law”. I still stand by the Forest Service “Ologists”. There is no great “Ologist Conspiracy” to cut big timber. They know the site-specific science better than anyone.

        • Fotoware, both the tenor of your response and some of your points illustrate another aspect of the point I was making. How the influence of deference affects the workings of the agency has a lot to do with attitude and the systemic function of the agency.

          Fotoware said, “Actually, the courts really want to wash their hands of all these picky procedural details and conflicting science.”

          Most often there is nothing picky or detailed involved, but instead simple, bedrock (and wise) legal requirements. These are such as (under NEPA, in an EIS) fully and fairly discussing all responsibly raised issues; really assessing the cumulative impacts; and considering the full range of reasonable alternatives.

          Fotoware said, “There is no great ‘Ologist Conspiracy’ to cut big timber.

          You are putting words in my mouth. Of course there is no conspiracy; the problem is malfunctions within the Forest Service system. In part it is peer pressures within the Forest Service “family,” manifested in various ways including systemic dysfunction. See the paper by Bella in PNW-GTR-288. My experience has been that often corners get cut or inconvenient facts or science get ignored. And there is this from Jack Ward Thomas (“Ethics for Resource Managers” paper):

          JW Thomas: “More and more lately, I seem to find myself advising troubled colleagues to tell the truth. It seems so simple. Yet, it can be so liberating. We live in an age of euphemisms, half-truths, obfuscations, double-talk and double-think. This atmosphere has closed in on us so gradually, so cloaked in the camouflage of the committee or team report, so justified by the need to get the job done, that we have come to consider such things the norm. Tell the truth, all the truth, all the time.”

          Fotoware said that: the Ologists “know the site-specific science better than anyone.”

          I couldn’t agree more, and I have known many over the years both within the Forest Service and in state resource agencies who have been very troubled by and felt helpless about the kinds of problems described above. Seems to me that is why there is an FSEEE.

          Fotoware said: that judges “also claim that they are ‘just following the rule of law’, implying that the laws are bad, and not their decisions.”

          Your logic escapes me. It seems here that the implication is that the agency didn’t follow the laws, not that the laws are bad.

          • Since most of my experience with litigation is in salvage sales, I’ll provide an example of how a lawsuit shut us down on nitpicking procedures and out-of-context claims.

            Within 6 months of suppression, a wildfire recovery program was crafted, using brand new, state of the art marking guidelines to cut fire-damaged green trees. The eco-industry was caught off guard and scrambled to organize an injunction to stop “imminent ecosystem damages”. They did get their injunction for 2 weeks, just as loggers were moving their equipment in. The suit went to district court and lost, and plans went forward to cut dead and dying trees. Work proceeded all summer and fall, and about 75% of the units were cut.

            Of course, an appeal was filed in the 9th Circuit Court, after the plaintiffs waited for the preferred Judges to come up. The case was heard and the Forest Service lost, due to the new marking guidelines and “inadequate” analysis regarding black-backed woodpeckers. The plaintiffs had their “expert” rant on and on about how the new guidelines (which were ordered by the courts in a previous case, before trees with green needles could be harvested) were wrong. The Forest Service brought up the author of the new guidelines, Sherrie Smith (a true expert), and she proceeded to tell the court that the opposition’s expert didn’t even understand the new guidelines. (I freely admit that using them in practice was confusing but, only at first.) The Judges determined that the new guidelines were not “wrong” but, were “confusing” enough to be shot down, nationwide. Additionally, the Judges decided that leaving 55% of the wildfire acres for wildlife wasn’t sufficient for the blackbacked woodpeckers, and was outside the project area, and not considered.

            In the end, a compromise was crafted to allow plaintiff-certified hazard tree removal (no green needles) only on roads designed for passenger vehicles. Any hazard trees over 40″ dbh could be cut but must be left in place. We could also skid and sell trees that were cut the previous summer. This was a forced compromise, as the Judges asked the plaintiffs what they want out of the suit. They obviously didn’t ask what the Forest Service wanted.

            Did the plaintiffs actually have a legitimate concern, or did they play the game of litigating the maze of rules, laws and policies of Federal land management? Was the “greater good” served, or did the plaintiffs sue just for “fun and profit”?

            • Fotoware, whatever this lawsuit is that you have mentioned, it seems to be a one-shot derringer you have been packing into this forum since last fall. Web searches on terms you used above failed to turn up the lawsuit you keep mentioning, but did expose your pattern.

              From comments on this Nov. 2010 article:

              November 10, 2010 at 1:16 pm | #24

              Fotoware: “A previous lawsuit elsewhere put a national ban on salvaging trees that had any green needles on them.”

              Pure fantasy — no such lawsuit exists.


              Fotoware’s reply:

              November 10, 2010 at 2:41 pm | #25

              Not anymore, because new guidelines were crafted by Sherrie Smith. Try more searching, Andy. …

              November 10, 2010 at 2:53 pm | #26

              Fotoware: Help me out here. What is the legal citation for the “previous lawsuit” you claim “put a national ban on salvaging trees that had any green needles?”

              Who is Sherrie Smith? And what did she do that’s relevant to the “national ban” lawsuit.

              Methinks you’re sort of making this up as you go along. Disabuse of me of that notion, please.

              Fotoware, you never answered that nor other inconsistencies in your comments that Andy idenified elsewhere in that thread.

              Then you made the same claim about this mysterious lawsuit in a comment in this May 2011 article, and then again in the present article.

              OK, Fotoware … showdown time. Please provide: (1) A case citation of at least who v. whom and the year, and preferably a URL; (2) a citation for Sherrie Smith’s guidelines or a URL to them; (3) a clear statement of whether you were present when the two experts testified (and if so the date) or whether what you have said about that is just hearsay; and (4) answers to Andy’s questions.

    • Congress deserves some credit for passing the laws in the first instance. But, the real credit goes to the American people who care passionately about their public lands. Citizens created the outcries that led Congress to pass these remedial laws.

      Although I wish it were otherwise, the Forest Service has proven for decades that without a vigilant citizenry to enforce the laws, they are routinely ignored by a bureaucracy that too often sees them as barriers to accomplishing the agency’s “real” missions.

  3. Sharon, You should re-read Mike Garrity’s piece. He never said AWR was involved in the “collaboration.” What Mike said was: “The Alliance and its environmental allies fully participated in the Colt Summit process, which is required before anyone can file a lawsuit challenging the Forest Service’s decision.”

    Mike is speaking about the NEPA “process” which is the only “process” that actually required to have a say in how America’s public lands are managed. Fine, maybe some folks who get paid to be around a table “collaborating” had a “collaboration.” Big deal, that’s not NEPA.

    The truth is that many members of this “collaboration” don’t know much at all about NEPA, NFMA, ESA, current Lolo Forest Plan. However, you can bet your bottom dollar that the “collaborators” knew full well that AWR and others had sent in very detailed comments on the EA and had sent in a very detailed appeal of the EA…even if many of those “collaborators” never bothered to read the actual comments from AWR and others, much less have much of an understand about what they were reading.

    Finally Sharon, I highly doubt you’ll hear much of anything from any of the “collaborators” on this one…that’s just the way these “collaborations” roll. I mean, controlling the outcome and message is why these folks “collaborate” right?

  4. Apparently, some posters here are woefully bad at searching for information on the Internet, eh?!?! This situation raises red flags upon your own credibilities if you cannot find a simple court’s decision, eh?!?! Looks like my aim with the “one-shot derringer” is pretty deadly, eh?!?!

    Is the LA Times a good enough source?????

    I read the court’s information on the decision, which definitely is not “hearsay”. NOW, tell me if my lawsuit example is frivolous, or not, and why. And if the decision to shutdown the entire project was the right choice. Andy even made an entire posting about this old salvage sale and decision, ignoring the court’s decision to ban the cutting of green trees, nationwide, in salvage sales. Welcome to reality, folks. I KNOW what I am talking about, here.

    • Fotoware said: “Is the LA Times a good enough source?????”

      Not for the particulars under discussion here. It did, though, provide enough added info for searching-up other info about this case. (Regarding your cheap shot about searches, your misspelling of Sherri Smith confounded the searches.)

      Your article, dated 2002, regards a temporary stay issued by the 9th Circuit. I can’t find that order; however, in 2003 the 9th reversed and remanded a district court’s PI denial in a similar case on the same forest that also involved both Smiths’s report and work by non-agency experts. <a href="$file/0216999.pdf?openelement&quot; Earth Isl. Inst. v. USFS. I believe the way the 9th reasoned its decision is contrary to your assertions about the court and the facts you raised.

      The court deferred to the agency’ reliance on its own expert (Smith) concerning her methodology for determining fire damage to trees and stands. (At 17395-6.) It then said (at 17397-8):

      “However, Plaintiffs also charge that the USFS data is factually incorrect. That is, regardless of the specific methodology adopted … agency data simply does not match the reality on the ground. If true, this fact would do more than challenge the USFS methodology or its conclusion that partially green trees will likely die and thus may be counted as already dead. It would suggest that the USFS experts had relied upon factually inaccurate data or that FEIS did not follow the methodology it claimed to follow.”

      “Plaintiffs present evidence that Monica Bond, a spotted owl scientist, found much higher tree canopy readings (using a densiometer) than the FEIS describes, and that she discovered large numbers of green trees where the FEIS specifically states that no green foliage exists. Similarly, Plaintiffs claim that Dr. Ed Royce used the Forest Service’s own methodology and arrived at radically different results than those reported in the FEIS. Finally, the Plaintiffs argue that the sale area maps, issued after the final agency decision had been made, reclassify many “severely burned” areas as “cut tree” areas, meaning that the logging company may only cut marked trees (as opposed to leaving only marked trees). Plaintiffs claim that areas are only marked as “cut tree” when they have experienced mild or moderate burns, thus suggesting that the Forest Service had implicitly acknowledged a lower burn level.”

      “To the extent that the agency reasonably relied upon mortality estimates obtained in compliance with the Smith methodology and reasonably discounted alternative evidence as unreliable or preliminary, the Forest Service is entitled to use the data it collected. We note, however, that if Plaintiffs are able to convince the district court that the agency unreasonably relied upon inaccurate data, they may be able to succeed on the merits of this claim.”

      “Because a claim of factual accuracy differs from an attack on the methodology itself, the district court should revisit this argument on remand.”

      So, I believe it is inaccurate for Fotoware to say the 9th has favored outside experts over the agency’s expert, Sherri Smith. Where expertise coincided (tree mortality estimates), Smith was followed. Where there was field data that contradicted Smith’s estimates and other expertise (spotted owls), the 9th told district court to take a closer look. Wholly appropriate, I think.

      Your other matter:

      The guideline you mentioned that was shotdown were probably 36 CFR 215.12(f), as indicated in the 2006 9th Circuit ruling which relies on something earlier and is a similar case, Earth Isl. Inst. v. Ruthenbeck (for Pengilly) (see at 9322). “We affirm the district court’s judgment that 36 C.F.R. § 215.12(f) – regarding categorical exclusions – conflicts with the Appeals Reform Act and affirm the nationwide injunction barring its application.” If that isn’t the guideline, please cite the right documentation.

  5. You have gotten confused over which case was which. The Star Fire decision rendered the old salvage marking guidelines obsolete. My project (not the Star Fire) was the first one to use Sherri Smith’s new guidelines, and both sides were eager to see them end up in court. The district court placed no limitations on the Forest Service’s plans, which clearly surprised the serial litigators with the speed they were crafted. All too often, fire salvage projects take way too long to plan and implement.

    Ironically, the guidelines were WAY too conservative with how the actual trees died off. I fought with both timbermarkers and supervisors to keep the marking strictly to the guidelines. Some of the units started out as nearly all green, with a hot underburn in bear clover. The trees looked like they would mostly recover, to my trained eye. However, as the summer wore on, trees turned from green, to yellow, to brown. We ended up cutting most of them, minus the required snags.

    The finished work on the projects I worked on was very high in quality, especially when contrasted with the Sierra Pacific salvaged lands right next door. Several incidents crossed the property lines and impacted Forest Service streamcourses, culverts and roads, after a “rain on snow” event.

    • So which fire was the case you are referring to over? What is its common title (who v. whom)? What date was the 9th’s decision filed? If you have a link to it, that would be ideal. If you have a hard copy and can get it scanned, you could upload it to ScribD and post the link here.

      A few posts ago you said, “I read the court’s information on the decision, which definitely is not ‘hearsay’. ” However, my question about hearsay did not concern the court’s decision, but your claim about testimony given by Smith and another expert. My question was, were you there for that testimony, or is what you have said about in hearsay? If you have a transcript of the testimony, can you please post it here by the method above?

      Thanks. Seems that we are getting closer to whatever it is that you have been talking about.

      • I did read either the transcript, or a portion of it but, I don’t know where I could find it again. You CAN choose to ignore and/or what I lived through, as Sale Administrator on several of the salvage sales but, apparently you are too obsessed with shutting me up, instead of understanding what happened, due to frivolous litigation and activist judges. I suggest you search for Chad Hanson, and investigate his “ma and pop” lawsuit-mill.

        • Fotoware (Larry H): Enough w/ the victim BS OK? Nobody here is trying to “shut you up.” What people like Larry and Andy have attempted to do is to make you back up, with facts, some of the statements you are making here. Larry and Andy have provided ample evidence to prove that your state, “A previous lawsuit elsewhere put a national ban on salvaging trees that had any green needles on them” is not correct. There is simply no national ban on logging any trees with green needles during a post-fire salvage operation. Trust me, I wish there was this national ban, but there isn’t.

          Please stick to the facts Foto (Larry H), Ok?

          • The facts are that the Forest Service were faced with a ban on cutting salvage trees with any green needles. We had to follow that ban in Montana, Oregon and all California Forest Service timber sales. When a precedent is set, you don’t ignore that fact and proceed with guidelines that have already lost in court. When the court ruled that new guidelines were needed, the old ones became obsolete and unusable. The ban was lifted when the Forest Service unveiled Sherri Smith’s new guidelines, on my salvage project. I am just presenting my observations and experiences, and showing just what it takes to shutdown a salvage sale, after it had already survived a district court lawsuit, with no restrictions. The 9th Circuit Court made their decision and gave the “keys to the kingdom” to the plaintiff. I really don’t care if you choose to not believe me, as I have no stake in Forest Service issues besides my selfish belief that forest restoration is infinitely better than letting whatever happens, happen. I selfishly LIKE green, healthy, vigorous forests that harbor endangered species and survive drought, bugs and wildfires. I also selfishly LIKE seeing burned forests recovery accelerated by salvage logging. I also selfishly LIKE seeing some dead trees hauled out of the woods, putting people to work.

    • Here is the aerial view of my project, several years later. I’m very proud of my contribution to the success of this particular salvage sale. If you zoom out, you can see other projects, as well as compare private salvage logging to the results of Forest Service rehab, restoration and recovery. It is pretty easy to see where property lines are, in some places. Zooming out even further shows the dozens of SPI clearcut units, peppered all over.,-119.744732&spn=0.011034,0.024784&t=h&vpsrc=6&z=16

        • Just so I understand what I’m looking at, those clearcuts “peppered all over” are on private timberlands owned by Sierra Pacific Industries (SPI)? What’s the average size of one of those?

          • That is correct. It has been almost 10 years since the local SPI mill for this area was closed and removed. The clearcuts seem pretty uniform, and I would estimate they are about 80 acres each. This type of management is quite similar to what the Forest Service was doing in the 70’s. Like cornfield crop rotations. SPI also keeps their chokehold monopoly on Federal timber, in some parts of California.

            I have been viewing a lot of these aerial photos, and found some VERY ugly things, on private land, particularly in comparison with Federal versus private fire salvage logging. Is ALL that ground disturbance considered to be “site preparation”? *smirks*

            If I were a greedy forester, I would sure be worried about people being able to look at actual conditions, through these kinds of aerial photos. On my project, shown in the link, there was a “rain-on-snow” event, which caused significant erosion. On closer examination, the problems came from the SPI lands, crossing property lines on to public lands.

    • Fotoware, you and your crew obviously did craftsmanly work. The questions in the litigation, however, involved what was removed throughout the project area and how that interacted on a landscape-scale cumulatively with with other impacts in areas surrounding the project. This is analogous to, for example, the war in Afghanistan where our boots on the ground can take pride in their service, but over which citizens can legitimately question the decisions that sent them there, and how those decisions were made. Nice photo and work, but I think they are beside the point.

  6. Based on Larry and Foto’s discussion- does anyone but me wonder if there are more useful things for federal judges to do than rule on models for tree-death? I just read a couple of weeks ago that the courts were overburdened. Still wondering if there is a better way.

    • Not I, and besides the issues litigated were about more than models — the question belittles what was on the table. Also, if there was nothing to them, the suits they would have been dismissed.

  7. Sharon, We are a nation of laws and we have a federal court system which serves to help balance the power of the legislative and executive branch of our federal government. I’m pretty sure that if you took a close look at just about any case in the US federal court system that you could say, “Does anyone but me wonder if there are more useful things for federal judges to do than rule on FILL IN THE BLANK?”

    • Matthew, I am all for the three branches of government. But just like you can question whether the best products come from the legislative branch (e.g. Tester’s bill), and whether the legislative process is the best approach for developing forest policy, we can question whether the court system is the best process.

      My question is “couldn’t people who know the most about what the people and the land need, get together and develop policies and conflict resolution approaches?” I think they would be better quality, if they had broad public support, Congress could write them into law and then the courts could enforce them- but people wouldn’t necessarily be using the court system to promote an agenda- because their agenda would have been satisfied by a prior compromise (in developing the legislation).

      A couple of weeks ago in the Denver Post, I read an article that I now can’t find about the overburdened federal court system. I think that, in this economic climate, we all have to think about the most important uses of all our beleaguered and underfunded government organizations.

      • As long as “serial litigators” and forest management “deniers” are around, there will continue to be lawsuits. As long as they continue to push for the elimination of ALL timber sales, off both public and private lands, there will continue to be lawsuits. As long as litigation continues to be profitable, lawsuits will continue, despite collaboration, despite consensus and especially BECAUSE OF compromise, which some groups find most unpalatable of all.

  8. Well, what the Judges ruled was that despite leaving half the burned area to black-backed woodpeckers and other wildlife (and other “values” that are very harmful in abundance), the Forest Service didn’t adequately analyze impacts on the woodpecker, a bird not on the endangered list but is a “Species of Concern”. Of course, they DID analyze for the woodpecker but, since the other part of the burned area outside of the project boundaries didn’t count and wasn’t part of the project. Apparently, they didn’t want to make that link, which would have allowed the project, which was at least 75% completed, to continue on to completion. What law was broken?!?!? Did the “punishment” fit the “crime”??!? Also, what was factored in was the fight over the salvage marking guidelines. The Judges didn’t determine they were wrong, just “confusing”. Then, they made the conclusion that if the guidelines confused the plaintiff’s expert, then the guidelines must be made to be understandable to the general public, as well. Do all project plans have to not only follow “the best science available” but also be easily understood by the mass of voters, too??!? In the end, the Judges allowed Chad Hanson to dictate to us what HE would allow. Justice served?!?!

  9. Fotoware,

    For the UMPTEENTH time — please indentify this lawsuit you keep harping about. You have been asked repeatedly to do so in the comments on several articles in this blog, and you always dodge that.

    Your questions cannot be answered without looking at what the court actually wrote.

    You profess to be intimately familiar with this project and to have worked on it. So … :

    (1) What was the name of the fire that was the impetus for this project?

    (2) What was the name of the project (i.e. the name of the NEPA document)?

    (3) Who were the plaintiffs?

    (4) Who was the named defendant?

    (5) If you have a copy of the 9th Circuit’s decision (seems you must, from all you have said about it), what is the case number and date of the decision? Who were the judges?

    Please provide an explicit answer to EACH question (and if you don’t know an answer, please say so). Then we can have a discussion.

  10. You can choose to believe me, or not but, my point is that the 9th Circuit Court is so far from the district court’s view of the case. Simply put, it is a frivolous lawsuit that plays upon the liberal mindset of that court. If you choose not to believe me, then it is up to YOU to prove me wrong by doing your OWN research. I will not do your footwork for you. I reviewed the decision just the other day, and there was a few other issues. Are there standard protocols for surveying for those “Species of Concern”, like the blackbacked woodpecker? Are surveys required for the burned areas outside of the project area? What is more important? Short term woodpecker habitat in salvage units, or long term fuels buildups and catastrophic re-burns, due to no salvage? This was a state of the art salvage project, with ample snags left for wildlife and logs for jobs. The decision implies that every cutting unit MUST be able to stand alone in supplying wildlife with “habitat”, regardless of what exists BETWEEN cutting units and outside of the project area. The “hard look” at wildlife habitat apparently doesn’t include areas outside of the cutting units and project areas. Fancy that! I guess each salvage sale should now place entire burned areas, including Wilderness and private lands, inside the project area, so they can be “properly analyzed” within the framework of the “hard look”, to get “credit” for the snags left explicitly for wildlife. This would also include snag recruitment, due to accelerated bark beetle activity.

    With, literally, MILLIONS of acres of dead forests, and more than snags since before glaciers dominated, who can say that we need even MORE habitat for a bird that has always had low numbers, historically and “naturally”? Chad Hanson and the CBD, that’s who.

    • Fotoware,

      Either you are being childish, or you are lying. Please be a gentleman by answering the questions or just give a full citation to your reference (the court’s decision).

      Is there a moderator on this blog?

      • Larry- yes, there is a moderator on the blog (one who doesn’t appreciate commenters calling people names…). for some reason Foto does not want to name the sale.

        I have asked others to substantiate their claims from time to time, and not everyone does. I would prefer they did, but there are multiple reasons that one could imagine.

        What’s important to me is that this blog is a safe place for people to express their opinions.

  11. My project, like the Colt Summit Project, suffers from the “do no harm, follow the law” syndrome. It doesn’t matter if my project was legal or not, as that was the Judges slanted decision, ignoring the “balance of harms” and the level of project completion. What matters is, did the harvesting of SOME of the snags and dying trees REALLY affect the blackbacked woodpeckers?? Along the same lines, fire suppression could also be construed as having “significant impacts” on the blackbacked woodpecker. You don’t see firefighters consulting with the Fish and Wildlife Service over whether they should fight fires, or not.

    It’s a similar problem with the Colt Summit project. Do the specific plans actually affect wildlife in a significant manner? Does the beneficial aspects balance out with the harm? Judges don’t seem to subscribe to the idea of “balance of harms”. And yes, EVERY alternative has its own “balance of harms”, and we need to be making sure that everyone knows what is being chosen in our courts (for us locals).

    A scenario I see that could happen is outright rural versus urban courts. The Forest Service is becoming quicker with NEPA, and better at closing loopholes. Imagine a big wildfire, burning in the fall, and the Forest Service gets a salvage project together in just a few months, ready to start operations in the spring. The eco-groups are slow to respond and their injunctions and lawsuits fail in the local district courts, as they often do. So, the eco-groups decide to appeal but, project work proceeds rapidly, with the felling of trees being given full priority (to make the appeal becomes a “moot point”, regarding salvage guidelines and snag densities). Once the project is heard in the upper court, all there is left to do is to complete the hauling, the cleanup and the road work, etc, to finish the project. All legal and such but, not what I would hope for.

    I hope to convince progressive and openminded people that compromise is best. However, that is the worst “C-word” of all, to preservationists.


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