Rocky Mountain Elk Foundation Cheers Court Decision

A press release from the RMEF. I haven’t found the 9th’s decison yet….

Note that “RMEF maintains litigation reform is necessary….”


May 30, 2018

Court Rules in Favor of Active Forest Management

MISSOULA, Mont.—The U.S. Ninth Circuit Court of Appeals denied claims by several environmental groups and ruled in favor of a habitat management project in southwestern Montana.

The Rocky Mountain Elk Foundation and several other partners filed an amicus brief in support of the U.S. Forest Service and several other federal agencies.

“We have seen environmental groups file frivolous litigation time and time again seeking to thwart efforts designed at improving wildlife habitat and overall forest health. That is the case here,” said Blake Henning, RMEF chief conservation officer. “We appreciate the court’s ruling and look forward to the implementation of this needed habitat stewardship work.”

The East Deer Lodge Valley Landscape Restoration Management project is a landscape project in the Pintler Ranger District on the Beaverhead-Deerlodge National Forest designed to improve forest health and reduce sedimentation in the headwaters of the Clark Fork River.

The vast majority of lodgepole pine trees in this immediate area are dead. Many of them are already on the ground. Without forest management treatment in the near future, the forest floor will be covered with combustible material that will also impede the growth of shrubs and grasses needed by elk, deer and other wildlife.

The project calls for the removal of pine beetle-killed timber, forest thinning to reduce conifer encroachment and other treatments on riparian areas to protect and improve watersheds that will enhance both fish and wildlife habitat.

“RMEF maintains litigation reform is necessary in order to allow agencies tasked with managing our forests the ability to implement active forest management that is so badly needed all across elk country,” added Henning.

13 thoughts on “Rocky Mountain Elk Foundation Cheers Court Decision”

  1. The previous head of Rocky Mountain Elk Foundation was from NASCAR. The incoming RMEF leader is from the NRA. Any questions?

    Also, as an avid (and successful) elk hunter myself the notion that “active forest management is so badly needed all across elk country” is totally bogus, especially if one considers that “active forest management” is code for “more logging.”

    • Matthew, out here in Oregon there’s great elk habitat and bad elk habitat. On federal land in the northern reaches of the Cascades, elk are scarce, in large part because there’s a lack of open, early seral habitat, due to a lack of disturbance — mainly logging and fire. One wildlife biologist here once told me that elk would soon be an “endangered species” on those federal lands. Active forest management, including timber harvesting and the careful use of Rx and natural fire, could restore or replace some of the elk habitat that is fast disappearing.

      FWIW, the RMEF foresters and biologists I’ve met are superb land and habitat managers.

      • FWIW, I was once told that forests were so thick along Montana’s Rocky Mountain Front that elk couldn’t walk through them. What’s ironic, is that every year I walk through these same thick forests and find hundreds of elk bedded down in spots where few hunters seem interested in going. Weird, isn’t it?

        • Matthew, what you were told was a bit of an exaggeration, like the one I have heard old-timers around here say about salmon in the rivers: that there were so may of them you could walk across a stream on their backs.

          Anyhow, the court’s opinion (Thanks, Andy!) didn’t delve into the question of active management:

          “Because Plaintiffs failed to exhaust administrative procedures before bringing this action, see 7 U.S.C. § 6912(e), we do not address the merits of Plaintiffs’ NFMA or National Environmental Policy Act claims.”

      • The question for national forest managers shouldn’t be whether elk habitat is disappearing. The definition of “lack” should depend on whether that habitat is within its natural/sustainable range of variation. It’s possible that industrial logging in Oregon led to too many elk in some places, and its habitat SHOULD be disappearing. When species viability becomes an issue, we might need to talk about doing something different.

        • Excellent observation, Jon. But how far back in time do we go? Native Americans certainly had an impact via burning.

          • I thought there was a FS book answer to your question Steve, but the FS Handbook just tells you to buy this book to get information about that: Weins, J.A., G.D. Hayward, H.D. Safford, and C.M. Giffen. 2012. Historical environmental variation in conservation and natural resource management. Wiley-Blackwell. Chichester, West Sussex, UK. 337 p.

            A 2009 paper by FS researchers says this: “Temporal scale and resolution is usually dictated by the temporal depth of the historical evidence used to describe HRV but it can also be selected to match specific management objectives.” ( I think a common sense answer would be to go back as far as the data allows, and acknowledge its limitations (including its relevance to today).

  2. Thanks Andy! A brief look shows that this could be a gray area.. how specific commenters need to be in their comments. The idea being that the comments have to be specific enough for the agency to respond. This sounds like a bit of a game of “bring me a rock, no not that rock” and the 9th Circuit wasn’t playing this time- but the grayness of a gray area could be different for different judges.

    “Plaintiffs failed to exhaust their concerns about disclosure of Riparian Management Objectives (RMOs) for Riparian Conservation Areas (RCAs) by not providing the agency with notice of their specific objections. It is undisputed that Plaintiffs filed comments to the Project Draft Environmental Impact Statement (EIS), and to the Revised Draft EIS. Plaintiffs also timely objected to the Project activities in RCAs were meeting, exceeding, or failing to meet RMOs. Plaintiffs’ requests were far more general: to “disclose the results of up-to-date monitoring of fish habitat and watershed conditions, as required by the Forest Plan,” and to “evaluate watersheds in the project area for effect on water quality.” These
    statements did not put the agency on notice as to Plaintiffs’ specific concerns such that the agency would know to offer the detailed answers Plaintiffs now seek. See Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002) (observing that while plaintiffs may alert decision makers to a problem using general terms rather than “precise legal formulations,” claims must “be raised with sufficient clarity to allow the decision maker to understand and rule on the issue raised”).”

  3. Also, FWIW….

    When the NASCAR-NRA management team at Rocky Mountain Elk Foundation say stuff like “active forest management is so badly needed all across elk country”….

    Compare that rhetoric with the fact that most hunting district in Montana are far, far above Montana Fish Wildlife and Park’s established elk capacities. In fact, there are so many elk in Montana right now that elk hunting tags in Montana are most likely the most liberal they’ve been in the history of MT FWP’s management of big game species. Most all hunters can easily get tags/permits to kill two elk every year. Then again, some hunters claim the “wufs” (aka wolves) ate all the elk.

  4. It’s interesting that the 9th Circuit went out of its way to overrule the district court on the exhaustion claim – especially because they got it wrong. During the public comment phase, plaintiffs raised this claim: “disclose the results of up-to-date monitoring of fish habitat and watershed conditions, as required by the Forest Plan.” The court said they failed to ask the Forest to “disclose the quantitative RMOs nor to discuss whether Project activities in RCAs were meeting, exceeding, or failing to meet RMOs.” The forest plan requires monitoring watershed conditions to determine compliance with RMOs, so plaintiffs said essentially the same thing in court as they had stated earlier.

    Fortunately this case is labeled non-precedential because this standard would be impossible to meet.
    It’s hard to know if this panel’s opinion indicates a movement towards closer scrutiny of failure to exhaust administrative remedies. If so, the likely effect would be to get attorneys more involved in the administrative objection process, at higher costs to plaintiffs (and possibly to the government when they lose).

    (I consider RMEF’s claims of “frivolous” lawsuits or demands for “litigation reform” to be more ideological than pragmatic.)


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