Some red meat for the anti-litigation crowd

Here’s a story about an enjoined timber sale that might be burning up right now.  It will no doubt become Exhibit A for arguing why we should not allow the public to sue the government over its land management decisions.

“Both the Park Creek and Arrastra Fires on the Helena-Lewis and Clark National Forest were ignited by lightning storms that spread through dense stands of dead timber. And both are located within the area of the Forest Service’s proposed Stonewall Vegetation Project, which was halted when two environmental litigant groups successfully convinced a federal judge to issue a preliminary injunction to halt the project.”

I just have to question the conclusions:  “The preliminary injunction against the Stonewall project, and the resulting fires …”  and the idea that environmental litigants should be “held accountable for their actions.” First there is the question of what exactly their actions caused (the fires?), and second is the idea that there should be liability associated with winning a lawsuit.  I think the judge allocated accountability in this case to the Forest Service for failing to follow the law.  They could have reconsulted on lynx critical habitat long ago, and the court said they should have, and if they had, the project would have probably occurred on schedule.


35 thoughts on “Some red meat for the anti-litigation crowd”

  1. I’d debate RY Timber’s manager Ed Regan about forest, logging, wildfire and wildlife issues anytime, anywhere.

    Did everyone know that RY Timber is owned by the billionaire Yanke family of Boise, Idaho?

    Also, everyone remember that Ed Regan starred in a political campaign TV ad for millionaire Montana Senator Steve Daines pimping for more public lands logging and blasting “fringe environmental groups?”

    Yep, watch it here:

    Also, for whatever it’s worth Montana has about 16,900,000 acres of National Forests. So far this year, according to the Northern Rockies Coordination Center, about 48,000 acres of National Forest lands have burned in Montana this year. This amounts to 0.28%, or 1/4 of 1% of the National Forest land in Montana.


    • Matthew, I get it that you disagree with Regan. What if I said you were “blasting public lands logging” and “pimping for fringe environmental groups.” Normally I would instead say that “you were against public lands logging and support environmental groups that believe/work for or whatever.” But wait.. that is honestly trying to characterize your position, which I couldn’t do because I’m sure your positions are complex.. I would leave to you.

      And I think “pimping” is really really unnecessary and inappropriate..

      • Thanks for the advice Sharon.

        One definition of ‘pimping’ is “sell or promote (something) in an extravagant or persistent way.”

        I think that word and definition fits quite well, so I think it’s very appropriate.

        • Just saying you also advocate your opinion in extravagant and persistent ways, but I won’t be calling you that word due to its origins. I find it offensive and doesn’t add any substance to your argument in fact for me, it detracts from them.

  2. All this information comes officially from Inciweb. The two wildfires that Ed Regan complains about are the Arrastra Creek Fire and Park Creek Fire.

    According to Inciweb:

    The Arrastra Creek Fire was sparked by a lightning storm on the evening of July 18, 2017. Local Forest Service officials decided to fully suppress the fire, given the predicted weather and other fire activity in the region. A 30 person initial attack crew was dispatched immediately and nearly had the emerging fire surrounded by fireline by early afternoon on July 19th. Low relative humidity resulted in very active fire behavior and quick fire growth.

    Fire activity exists in isolated pockets of unburned fuel within the perimeter, primarily in the south and west portions of the fire, above the Arrastra Creek drainage. Total acres as of today are 4,002.

    More info at:

    Meanwhile Inciweb says this about the Park Creek Fire, which is 5,189 acres.

    Sparked by lightning during a storm that rolled through the area on Friday night, the Park Creek Fire was reported on July 15th. The fire is in dense stands of heavy and dead timber, in steep terrain. The fire location is T15N, R9W, Section 26; it is bordered on three sides by previous fire/burned areas: NW Klondike Fire; N-NW Snow Talon Fire; and E Sucker Creek Fire.

    Activity on the fire has been minimal. Movement has been limited to smoldering, creeping and backing within the control lines. Due to the steep terrain, rolling material continues to require patrol and mop-up along the line.

    More info at:

    What’s very interesting to consider is that while Ed Regan wants to get all “chicken little” and blame environmentalists (not the U.S. Forest Service for pushing what they knew were illegal timber sales, as Jon Haber points out) it sure appears as if these two wildfires burning in a part of the National Forest that the USFS believed NEEDED to be logged are burning in a pretty tame manner.

    It hasn’t rained in Missoula for 42 days (tying a new record) and Montana has had 90 degree weather, strong winds and low humidity for much of the past month, including around Lincoln, MT. And yet these two wildfires have basically creeped and crawled in small pockets for the majority of the time.

    One would think that since the USFS needed to log this area to reduce fuels that any wildlife in the area pre-logging (and with high temps, no rain and low humidity) would burn everything to a crisp and take off like gang-busters.

  3. According to the author, “The Forest Service recognized that action was needed to respond to mountain pine beetle outbreaks …” Maybe the well-behaved fires are the result of the “fuel reduction” already accomplished by the beetles? “Our findings clearly show that insect outbreaks can reduce burn severity:” //

  4. Whoa, guys Matthew says (not the U.S. Forest Service for pushing what they knew were illegal timber sales, as Jon Haber points out) isn’t a PI about stopping something while the judge takes more time to decide and asks for more info? I think I remember getting PIs for things that were ultimately decided in the FS’s favor. Also my experience is that DOJ doesn’t take things to court on a whim, they have to feel they have a chance of winning. Given lengthy legal timeframes, that would probably have been President Obama’s DOJ. So I think it’s a bit early to call it illegal.

    Jon- I would really appreciate it (and even buy you a six pack!) if you would look closely at the Tennessee Creek project (EA) and the Stonewall Project which both had lynx and see exactly what the folks in Colorado did that you think is better than the way the Stonewall Project was done. Here are my questions… was there a procedural difference – if so, what?
    Was there a project design and wording difference?
    What lynx protections (on the ground) did Tennessee Creek have and Stonewall did not?

    I think a lot of us could benefit from your experience in helping understand what is procedural, what is documentation, and what are differences in the actual project on the ground and how that affects lynx.

    Your science quote says “insect outbreaks can reduce burn severity”. They can also increase it, or leave it the same, it depends on the insect, the place, and the time. This would be more helpful if related to this specific project and the conditions on the ground now and the future following the outbreak.

  5. The key difference between Colorado and Montana for lynx is that there is no lynx critical habitat in Colorado. So the new consultation on forest plans required for critical habitat applies to Stonewall but not Tennessee Creek. And the Stonewall lawsuit was decided based on this ESA requirement rather than any NEPA shortcoming. So what would happen on the ground could be identical, but irrelevant; there were different procedural requirements. (I prefer obscure bottled microbrews.)

    You are right about the purpose of a preliminary injunction, but what a PI tells you about the merits of the case can vary. In this case it’s largely a question of law (the meaning of ESA §7(d), which DOJ may have thought had been lightly litigated, but the court views as settled in the Circuit), rather than a question of fact for which further research and briefing might produce a different outcome.

    I agree that research would be most relevant if it had been conducted in the project area, but how often does that happen? That is why it is incumbent on the project analysis to do what you asked – apply the research to the conditions on the ground.

    • The Forest Service and Fish and Wildlife Service need to analyze impacts on lynx critical habitat at the landscape scale and the site-specific scale. Thus, even if the Forest Service completes site-specific analysis for a relatively small timber sale, it still has not analyzed the impacts of employing the Northern Rockies Lynx Management Direction at the landscape scale. In short, the Forest Service and FWS have to look at the big picture.

      This did not happen because critical habitat for Canada lynx was not designated on National Forests because of political interference by a high-ranking political appointee. Now the Forest Service has to wait on some logging projects until the analysis is complete. It is worth noting that a similar large scale analysis on an endangered frog in California was recently completed in under two weeks. Why is the lynx analysis taking so long? I have two guesses:

      1.) The FWS is finding that implementation of the Northern Rockies Lynx Management Direction is going to adversely modify critical habitat, which is not allowed under the ESA. For context, the Northern Rockies Lynx Management Direction allows the Forest Service to go forward with projects that leave 700,000 acres of critical habitat unsuitable for Canada lynx. Does rendering 700,000 acres of critical habitat unsuitable for lynx amount to adverse modification? If yes, the agencies need to come up with Reasonable and Prudent Alternatives, which may be why the analysis is taking so long.

      2.) The more cynical guess for why the analysis is taking so long is because the Forest Service is continuing to lean on Senator Daines to pass legislation to weaken the ESA.

      I hope the irony is not lost: the analysis of impacts to critical habitat at the landscape scale was not completed because of political interference, the Forest Service was told by several courts to do the analysis, now politicians are trying to pass legislation that says the analysis does not have to be done.

      • John, did they not analyze the impacts when they did the Northern Rockies Lynx Management Direction FEIS? I saw in the ROD (p. 3) that

        In regards to timber harvest the FWS states, “Timber harvesting can be beneficial, benign, or detrimental to lynx depending on harvest methods, spatial and temporal specifications, and the inherent vegetation potential of the site. Forest practices in lynx habitat that result in or retain a
        dense understory provide good snowshoe hare habitat that in turn provides good
        foraging habitat for lynx” (p. 40083).

        Did the FWS change their mind about what impacts lynx habitat?

        • Sharon,

          The FWS was required under Section 7 of the ESA to determine whether implementation of the Northern Rockies Lynx Management Direction would result in the adverse modification of critical habitat. That analysis was never completed (because of political interference) and is entirely different from any NEPA analysis.

          Implementation of the Lynx Management Direction will have adverse effects to 700,000 acres of critical habitat for Canada lynx and leave areas unsuitable for species. The FWS did not change their minds, they just never addressed whether having adverse effects or making critical habitat unsuitable amounts to adverse modification.

          • John, this is very helpful- Was it the NEPA analysis that said “Implementation of the Lynx Management Direction will have adverse effects to 700,000 acres of critical habitat for Canada lynx and leave areas unsuitable for species. ” And then there is an ESA step whether it is “adverse modification”? I am just having trouble seeing how you could know the “700,000 acres” and the “unsuitable for species” without doing analysis. Are there two separate analyses required of what might sound to people like the “same thing”, i.e., effects of Lynx Management Direction on lynx?

            • Sharon,

              The ESA prohibits actions that jeopardize the species or result in the adverse modification of critical habitat. In the lynx case, there was no critical habitat designated on Forest Service land because of political interference. As such, the FWS completed Section 7 consultation on the Lynx Management Direction and concluded that implementation would not jeopardize the species or adversely modify critical habitat. After Section 7 consultation was complete the FWS designated critical habitat on Forest Service land.

              I was sitting at my office desk at 9pm on a random Sunday night looking at the Section 7 consultation when I realized that the Forest Service/FWS was tiering to the Lynx Management Direction for site specific projects without ever analyzing whether the Lynx Management Direction would allow for the adverse modification of the newly designated critical habitat.

              The Solicitor General filed a petition with the U.S. Supreme Court saying the case should be reheard because there was a split between the Ninth and Tenth Circuits regarding whether Section 7 consultation was necessary. In a Tenth Circuit case known as Forest Guardians the court determined that the Forest Service/FWS did not have to consult over the impacts of a Forest Plan on Canada lynx. One important difference is that in our case the Forest Service had already determined that consult over the Lynx Management Direction in the first instance was necessary. The agency did not want to have to reinitiate consultation after new critical habitat was designated. The reinitiation regulation at issue in our case (50 C.F.R. § 402.16) was not at issue in the Forest Guardians case.

          • I’d like to see the Forest Service ‘consult’ with their own wildlife scientists, instead of having to ‘outsource’ decisions to another Agency. Of course, some people just don’t trust Forest Service ‘Ologists’, despite the expertise in their fields.

            • Larry,

              I did cite to a Forest Service doc in court from the Rocky Mountain Research Station that says:

              Lynx are very sensitive to forest management, especially forest thinning. Thinning reduces habitat quality for lynx with effects lasting up to several decades.

              [T]here is likely a threshold of thinning below which lynx will not be able to persist.

              • Thanks so much John for your continued informed comments on this blog on this, and other issues. I know it’s greatly appreciated by many.

              • I just think that we don’t need a “second opinion” if the Forest Service wildlife biologists are already doing analysis and documentation. Analysis Paralysis. Frankly, if the Forest Service wildlife folks say no to a project, I will go with that. I fully trust them to make good decisions, without having to consult.

                • Larry,

                  I just spoke with a Forest Service employee last week that said Congress needs to decouple funding the agency from timber harvest. Evidently there are timber targets and if the Forest Service does not meet those targets it does not get funded. Can anyone verify this?

                  Even if the Forest Service oologist does not think a project is a good idea there is a tremendous amount of pressure to meet timber goals. This is why I like the idea of an independent agency whose mission is protect our wildlife.

  6. I don’t know that the FS has ever had a situation where they did not get funded by Congress because they did not meet their Congressionally assigned timber target. It would seem to be counterproductive. Earlier in my career (1980s) there was a lot of talk that if a district ranger or forest supervisor did not meet their timber target that they would probably not have their job much longer. I don’t know that I have ever observed a ranger or a supervisor getting a transfer for that reason (but I have seen them get transferred for other reasons). For most Forest Service regions making sure that funds are spent effectively and efficiently are very important. If forests or districts repeatedly spend money and have nothing to show for it – regardless of the type of target that it is (reforestation, timber, stream improvement) – that is a problem, and that does happen. For more than 30 years now folks have been talking about other ways to measure Forest Service accomplishment – and no one has come up with an acceptable alternative yet that focuses on outcomes on the ground instead of accomplishments/widgets produced.

  7. Maybe no line officer has ever been transferred for failure to “produce” (involuntary transfers of non-SES personnel seem to be reserved for acts of misconduct). But I’d bet dollars to donuts that PROMOTION of line officers has a lot to do with production. Historically that meant commodity production. Maybe there’s more promotions based on ecological restoration these days, but I’m guessing it still lines up best with what Congress is applying the most pressure for, and I don’t think that’s bird nests.

    • In fact, line officers have been transferred for failure to produce the ASQ, e.g., former California Regional Forester Zane Grey Smith, Jr., from his Forest History Society interview:

      SMITH: This was 1988. And I said to them—I said, “You know, the handwriting’s on the wall.” We were doing our planning at that time. And I said, “Get ready for something around 1.5 billion board feet.” Bill Dennison, the executive of that, said, “No, that was a shot that was heard around the world.” That happened on a Thursday.

      DUNSKY: And who’s Bill Dennison?

      SMITH: Bill Dennison was the executive officer for this timber association. I don’t know who’s down there now. Anyway, the next Monday I was informed by the chief, Dale Robertson, that the secretary of agriculture was coming out to discuss this issue with the industry, and I was not invited, nor were any Forest Service people. He did come out. That was [Richard E.] Lyng.

      DUNSKY: Dick Lyng?

      SMITH: Dick Lyng, yes, and he met with the industry and sometime later that week, the chief called me and said, “The secretary thinks we need a change in Region Five.” And I said, “Okay.” He said, “We’ll offer you a job in the chief’s office.” I says, “Let me know what it is.” He offered the associate deputy chief for National Forest System. It was a fine job. I mean, that’s the same grade, and everything is the same. Lots of responsibility. But I had been back there twice, and I just said, “I really don’t want to do that.” I was fifty-three years old, and I had plenty of time, but I didn’t have age to fully retire, so I said, “Dale, let’s do this: Give me something here that will carry me over past my fifty-fourth birthday, and I think I’ll just deny it.”
      In the meantime, he offered me some other regions, Region Two. At that time, my mother and father were alive, and neither one could go to anything that high. Denver is too high. They didn’t have any other place for me to go, so I said, “I’ll just take a directed reassignment, and I’ll retire.” I was in Senior Executive Service, so there was no appeal to that. You got to do what they tell you to do. So Dale came and visited the region, and we had a family meeting in the theater down there in downtown San Francisco, and he announced it, and [chuckles] it was really kind of interesting. People were really taken by the fact that he’d go to that extent. But, you know, he couldn’t back off of that.
      And so I retired at age fifty-four.

      • Andy, a variety of people can become unpopular with political folks at various levels in either party for a variety of reasons and the idea is “we need new leadership”. Even employees who are not SES have to deal with being graceful about it or not. The FS does belong to the Executive Branch.

        So I see this as an example of that.. and 1988 was almost 30 years ago. “The past is never dead it’s not even past” William Faulkner. That’s why we need us oldsters around…

    • One of my tasks in Region 2 was sitting in personnel decision reviews for rangers and above. That would be 2005-2012. The Supe would tell us about the candidates and why she or he was picking the one they wanted. I probably heard hundreds of these in that time period. Don’t ever remember “getting the cut out” as important.

      We also did the prework for Forest Supe positions, but that was ultimately reviewed by the WO, and was altogether mysterious (to me) in a few cases. I don’t think the decision went higher than that, but I suppose if you had ticked someone off and that person had political friends, the politicals might dive in. I bet there are people at least lurking on this blog that know more than I do, and it would be good to hear from them.

        • When the new rules established a 20 inch diameter limit in the Sierra Nevada, my old Ranger District ended up with a new timber target 1/30th of its former goal. Timber folks called it a “Train Wreck”, and many jobs were cut.

        • That’s true, but maybe only up to a point. The forest plan ASQs are still well above what is being harvested in many places, and if Congress isn’t still using ASQ as reference point, what are timber targets being based on now (assuming there still are such things)?

            • Which leads to the question of what budgets are based on; the budget requests from the agency any way. Under the old planning rule, “budget proposals, shall be based on the plan.” There’s no counterpart in the 2012 Planning Rule, but what else would they use? Or if it is just not the ASQ, is something else in forest plans important. If forest plans are not used in budgeting, how are their desired outcomes relevant? (If you or someone else familiar with the process would like to start a separate thread on how the Forest Service develops its budget proposals that would be helpful.)

  8. You got a lot more exposure to this than I did, but (and this is probably true in any organization) – there are things done in public to meet personnel procedural requirements, and then there are the reasons that are discussed behind closed doors and not written down.

    Congress tells the FS what it wants and the agency has a lot of incentives to make that happen. You used to be able to find timber “targets” in documents that accompanied the federal budget (“advice?” – I never wanted to know much about this – how does it work these days?). I know RFs also heard it from their local Congressionals. How often would someone in the chain of authority ignore that in their personnel decisions?

  9. Epilog:
    The Forest wanted to keep the original decision in place while it evaluated the effects of the fire. The judge said “no.”

    “Christensen’s ruling states that keeping an original decision in place occurs only in rare circumstances where vacating it has severe circumstances. Stonewall had not met that high burden, he found.

    Supplemental analysis must now arrive at a new decision, which is a lengthier process than potentially affirming the previous decision.”


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