Litigation

What Went Right with West Bend? Comparing to Colt Summit

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colt summit table

A few weeks ago, I posted this on the West Bend Vegetation Project, and asked the question “why was this successful?”

Matthew asked the question “could it be because the Deschutes was willing to negotiate with the objectors during the objection process?”

He compared it to the Colt Summit collaborative project, that we’ve discussed many times on this blog. Here’s exactly what he said:

This compares to some other high-profile CFLRP projects, such as the Colt Summit Timber Sale on the Lolo National Forest, in which the Forest Service was completely unwilling to make any modifications or remain flexible even going so far as the Lolo Supervisor telling conservation groups during the appeal resolution meeting “We’re fully funded for this project and we’re not making any changes.” The result was the first timber sale lawsuit on the Lolo National Forest in over 5 years.

So I went back to the record and asked the question.. had the Colt Summit folks changed the proposal based on public feedback?
I had a vague memory of a table that showed changes.. and sure enough, in this link there it was!

But it looks like it was based on public input and not on the result of an appeal resolution meeting. So here’s what appears to have happened (FS people invited to chime in):

The Forest Service initially proposed 1228 acres of commercial thinning when they first presented the project to the public. The Proposed Action was first presented to the public on February 6, 2010 in an official scoping notice (legal advertisement published in the Missoulian newspaper of record). Later, in response to public comment and field findings, the Forest Service developed the modified proposed action, which reduced the commercially thinned acres down to 597 acres.

So it sounds as if, based on what Matthew said, the appellants on Colt Summit might have been satisfied and not litigated if the acres had been reduced still further. I like this because it is honest.. it’s not really about the FS breaking the law, it’s about having power over the outcome.

But the public can’t know for sure, since Mr. Garrity pointedly refused to say what outcomes he wanted, when I asked in this email exchange.

Here’s what Mr. Garrity said:

We do think is is odd that the Forest Service was non-responsive to our comments and appeal and yet we are supposed to believe that if we debate this on a blog site it will bring changes to the project.

So it didn’t seem important to him to inform the public (whose land it is) about his concerns. The FS worked with the public, though, as required by law and regulation.

Here’s the process for Colt Summit was as follows (steps of official public input in bold):

1. Proposed Action Developed by Forest Service considering collaborative input from previous projects

2. Scoping – Proposed Action provided to public for review and comment

3. Public concerns and issues identified and alternatives developed to respond to public’s scoping comments

4. EA Prepared to analyze effects of the proposed action and the alternatives and to display this analysis for public consideration

5. Public Notice – Legal Notice published on December 10, 2010 to inform public that EA and Draft Finding of No Significance (FONSI) is available for public comment.

6. Comment Period – public provided comments on EA during 30 day comment period

7. Modified proposed action prepared and analyzed to respond to public comment. Acreage of commercial thinning reduced from 1228 to 597 acres.

8. Decision Notice and FONSI signed on March 25, 2011 selected the Modified Proposed action

9. Appeal Period – 45 day appeal period begins day of decision

With Colt Summit, there were three additional comment periods with reaffirmation of the original March 25, 2011 decision. None of these decisions were subject to appeal because the Forest Service did not change the original decision.

So Mr. Garrity’s (secret) opinions should count more than the other members of the public because…if the FS doesn’t do the (secret) thing that his group wants, then the project will be delayed in years of litigation. Kind of quasi-extortional. Just some kind of formal mediation process, prior to litigation, would help this kind of thing, in my view, or at least should be tried. Congress.. this would be a simple pilot to try out and not invoke “rolling back environmental laws.”

Arbitration in Barasso’s Bill: What Do You Think?

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It seems like this is one of the few new ideas to surface on this recently. On this blog, I have previously suggested publicly documented mediation be used, but I am not as familiar with arbitration. I’d like to hear what others think who have experience with those processes.

Also, does anyone know about the USDA “pilot program”
to use arbitration and the results of that pilot?

Here’s an explanation in English:

Sec. 5 – Administrative Review, Arbitration.

Uses the objection process established in the Healthy Forest Restoration Act as the administrative review mechanism. This allows consolidation of objections, allows discussions with the objectors, and provides more rapid resolution.

Arbitration: This section establishes a pilot arbitration program to resolve disputes over projects carried out on Forest Management Emphasis Areas. Arbitration would be available to
anyone who filed an objection and was still not satisfied with the covered project. Demands for arbitration must be filed within 30 days and must include specific modifications sought for the covered project. An arbitrator named by the court must select either the project proposed or the project as modified by the party that filed the demand for arbitration, or an intervener. The decision of the arbitrator must be made within 90 days of the demand for arbitration, is final, and is not subject to further analysis or judicial review.

Below is the section:

SEC. 5. ADMINISTRATIVE REVIEW; ARBITRATION.

(a) ADMINISTRATIVE REVIEW.—Administrative review of a covered project shall occur only in accordance with the special administrative review process established by section 105 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6515).

(b) ARBITRATION.—

(1) IN GENERAL.—There is established in the Department of Agriculture a pilot program that—

(A) authorizes the use of arbitration instead of judicial review of a decision made following the special administrative review process for a covered project described in subsection (a); and

(B) shall be the sole means to challenge a covered project in a Forest Management Emphasis Area during the 15-year period beginning on the date that is 60 days after the date on which the Secretary assigns the acreage treatment requirements under section 4(a)(4)(B).

(2) ARBITRATION PROCESS PROCEDURES.—

(A) IN GENERAL.—Any person who sought administrative review for a covered project in accordance with subsection (a) and who is not satisfied with the decision made under the administrative review process may file a demand for arbitration in accordance with—(i) chapter 1 of title 9, United States Code; and (ii) this paragraph.

(B) REQUIREMENTS FOR DEMAND.—A demand for arbitration under subparagraph (A) shall—

(i) be filed not more than 30 days after the date on which the special administrative review decision is issued under subsection (a); and (ii) include a proposal containing the modifications sought to the covered project.

(C) INTERVENING PARTIES.—

(i) DEADLINE FOR SUBMISSION; REQUIREMENTS.—Any person that submitted a public comment on the covered project subject to the demand for arbitration may intervene in the arbitration under this subsection by submitting a proposal endorsing or modifying the covered project by the date that is 30 days after the date on which the demand for arbitration is filed under subparagraph (A).

(ii) MULTIPLE PARTIES.—Multiple objectors or intervening parties that meet the requirements of clause (i) may submit a joint proposal under that clause.

(D) APPOINTMENT OF ARBITRATOR.—The United States District Court in the district in which a covered project subject to a demand for arbitration filed under subparagraph (A) is located shall appoint an arbitrator to conduct the arbitration proceedings in accordance with this subsection.

(E) SELECTION OF PROPOSALS.—

(i) IN GENERAL.—An arbitrator appointed under subparagraph (D)— (I) may not modify any of the proposals submitted under this paragraph; and (II) shall select to be conducted—

(aa) a proposal submitted by an objector under subparagraph (B)(ii) or an intervening party under subparagraph (C); or (bb) the covered project, as approved by the Secretary.

(ii) SELECTION CRITERIA.—An arbitrator shall select the proposal that best meets the purpose and needs described in the environmental assessment conducted under section 4(b)(1) for the covered project.

(iii) EFFECT.—The decision of an arbitrator with respect to a selection under clause (i)(II)— (I) shall not be considered a major Federal action; (II) shall be binding; and (III) shall not be subject to judicial review.

(F) DEADLINE FOR COMPLETION.—Not later 90 days after the date on which a demand for arbitration is filed under subparagraph (A), the arbitration process shall be completed.

Map of Federal Courts

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And “now for something completely different”, only on the NCFP blog can you find Monty Python clips, a discussion of the jet stream, and a map of the federal circuits! As I replied to Dave Skinner below I had a crisis of confidence and decided to check:

FederalJudicialCircuitsAndDistricts

Note: I think I remember some FS cases going to DC or federal court but can’t remember for sure and can’t remember why. Can anyone out there help?

Twenty Years of Forest Service Land Management Litigation

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Folks on this blog may be interested in this paper: “Twenty Years of Forest Service Land Management Litigation,” by Amanda M.A. Miner, Robert W. Malmsheimer, and Denise M. Keele, Journal of Forestry, January 2014.

I haven’t finished reading it yet, but this long paper has a wealth of data and analysis on the topic. Here’s the abstract:

This study provides a comprehensive analysis of USDA Forest Service litigation from 1989 to 2008. Using a
census and improved analyses, we document the final outcome of the 1,125 land management cases filed in
federal court. The Forest Service won 53.8% of these cases, lost 23.3%, and settled 22.9%. It won 64.0% of
the 669 cases decided by a judge based on cases’ merits. The agency was more likely to lose and settle cases
during the last 6 years; the number of cases initiated during this time varied greatly. The Pacific Northwest
region along with the Ninth Circuit Court of Appeals had the most frequent occurrence of cases. Litigants
generally challenged vegetative management (e.g., logging) projects, most often by alleging violations of
the National Environmental Policy Act and the National Forest Management Act. The results document the
continued influence of the legal system on national forest management and describe the complexity of
this litigation.

ESA lawsuits: fair and balanced

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Environmental litigants seem to be a favorite target these days of both Congressional hearings and criticism on this blog.  So after reading (here) about a recent lawsuit that led to DE-listing of species, I decided to look into what these anti-environmental plaintiffs were trying to accomplish with it.  What we have (here) is an exact mirror image of the litigation strategy to list species under ESA, and the same reason they won – failure to meet deadlines.

In this example, plaintiff’s reasons for de-listing have nothing to do with the species or restrictions resulting from the listing.  The species will still be protected.  As the other article says, the lawsuit was merely “symbolic.”  Harassment maybe.  Now wasn’t defending against it a good use of our tax dollars?

Just saying – it’s ok to talk about whether limiting litigation is a good idea, but let’s not suggest that judicial review inherently favors any particular position.

 

Adopt-a-Project Opportunity: Blankenship Veg Project

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Photo courtesy of Lewis and Clark national forest
Photo courtesy of Lewis and Clark national forest

UPDATE: One of our generous readers offered a copy of the complaint here.

Based on this coverage in the Great Falls Independent paper, I am curious how the FS should have surveyed according to Garrity, and what they actually did.

“First, this case is about the Forest Service’s failure to use ‘best available science’ and properly survey for Canada lynx and report those survey results, and the agencies’ use of improper and inadequate survey results in the finding of ‘no adverse effects’ for lynx, in violation of the National Forest Management Act, National Environmental Policy Act and the Endangered Species Act,” the lawsuit says.

Dave Cunningham, a spokesman for Lewis and Clark National Forest, said the forest has received widespread support for the Blankenship fuels treatment project. The project had been scheduled to be implemented this spring.

“At this point in the process, when a suit is filed, we need to stand down for a moment, study the complaint that has been filed, confer with our Office of General Council attorneys, and then based on their advice, take the next appropriate steps,” Cunningham said.

The lawsuit was filed in U.S. District Court in Great Falls against the U.S. Forest Service, Faye Krueger, regional forester for the agency’s Region 1 and the U.S. Fish and Wildlife Service.

Canada lynx, known for their distinctive facial ruff on each side of the snout, large round feet and black-tipped tails, are listed as a threatened species under the Endangered Species Act. The estimated population in Montana is 300, Garrity said.

The Forest Service issued a biological assessment in July concluding the project wasn’t likely to adversely impact lynx, and the U.S. Fish and Wildlife concurred.

The Fish and Wildlife Service administers the Endangered Species Act.

If a listed or candidate species may be present, agencies must prepare a biological assessment to determine projects would harm them.

It is possible lynx move through the area, but the habitat isn’t considered occupied, according to the Forest Service, but the lawsuit disputes the methods used to reach that conclusion.

“Even the Forest Service previously determined that at least part of the forest is considered ‘occupied’ by lynx,” Garrity said. “So, from the best available present and past data, there is ample evidence to suggest that lynx may be present in the Little Belts and the Blankenship area.”

Montana Fish, Wildlife and Parks trapping records show 268 lynx were trapped in northcentral Montana, which includes the Little Belt Mountains, between 1959 and 1967, Garrity said.

It took me a while to find this site, which has everything you might possibly want to know, including appeal responses, which probably covered this topic.

Here’s what I picked up from a brief foray into Appendix II.

Canada Lynx
The project area is within secondary, unoccupied habitat (USDA Forest Service and USDI Fish and Wildlife Service 2006). There are historic sightings of lynx near the project area from 1979 to 1981, over 30 years ago. From 1981 to 1997 there are nine additional records in the Little Belt Mountains (see project file). These records do not meet the definition of a verified observation or record (USDA Forest Service 2007, pages 142 to 144). Telemetry data of lynx in Montana from Devineau (2010) is not presented at a scale conducive to determining exact locations, and the accuracy of the data varies widely (from 0.15 to 10.0 km). These records also do not meet the definition of a verified observation or record. There are no current sightings in the Little Belt Mountains. During fiscal year 2009, winter surveys were conducted in a portion of the Little Belt Mountains (including the Blankenship Project area). There were no lynx located during these surveys.

Informal consultation for the Blankenship Project was initiated by obtaining the THREATENED, ENDANGERED AND CANDIDATE SPECIES for the LEWIS AND CLARK NATIONAL FOREST 2/13/2012 species list from the Montana Field Office website at http://www.fws.gov/montanafieldoffice/Endangered_Species/Listed_Species/Forests/L&C_sp_list.pdf). Lynx is not included on the FWS species list for the Jefferson Division, nor is the Jefferson Division within designated critical habitat (USDI 2012). The effects of the Blankenship project on habitat for Canada lynx are disclosed in the Blankenship Vegetation Treatment Project Lynx Analysis Report, LAU LB4 (March 2012, project file). This project will have No Effect on lynx or designated critical habitat under the Endangered Species Act.

Would someone be willing to volunteer to learn about this project? (I assume we can’t talk directly to the FS folks due to litigation, as the story says). I’m sure someone here could get a copy of the complaint and the evidence Garrity cites, and we could figure out the two perspectives (plus add our own ;)).

Note: Any volunteers for Project Adoption don’t have to use their real names AND can contact me directly if they don’t feel comfortable announcing it to the world. Terraveritas at gmail.com.

Power Fire 2014

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We’ve seen pictures of the Power Fire, on the Eldorado National Forest, before. I worked on salvage sales until Chad Hanson won in the Ninth Circuit Court, with issues about the black-backed woodpecker. The court decided that the issue needed more analysis, as well as deciding that the Forest Service’s brand new mortality guidelines were “confusing”. From these pictures, it is very clear to see that those mortality guidelines were way more conservative than they maybe should have been.

P9262156-web

As you can see, in this finished unit(s), there were ample snags available for birds to use, despite multiple cuttings, due to the increased bark beetle activity, during the logging. No one can say that they didn’t leave enough snags, (other than the Appeals Court). These pictures are very recent, shot last month.

P9262142-web

This picture amused me, as I put this sign up back in 2005. Plastic signs last much longer than the old cardboard ones.

P9262128-web

Here is another view of the area, chock full of snags, well beyond what the salvage plans asked for, to devote to woodpeckers and other organisms that use snags. People like Chad Hanson want more high-intensity wildfires, and more dead old growth. It is no wonder that the Sierra Club decided he was too radical, even for them.

Edit: Here is the link to a previous posting from almost 2 years ago, with pictures. https://forestpolicypub.com/2012/05/28/the-power-fire-six-years-later/

Beware of Zombie Lawsuits: Reporting by the Fairfield Sun Times

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I am not sure I understand all this, but I really like the fact that the writer, Darry Flowers, took the time to delve below the surface and do some digging ;). A curious story. I also liked how he explained the legal terms (the people on this blog can check if he’s correct). My favorite sentence is italicized. The whole story is here and an excerpt below.

The meeting was cordial. When Mark Bodily presented a slide in his presentation that implied that the Blackfeet were present when the Rocky Mountains were created, Lease operator Joe Large, with RPM Geologic, challenged the assertion. Large stated that the Rockies, from a geological standpoint, were created “54 million years ago” and pointed out that no humans were present at the time of their formation.

After a brief exchange, Bodily told Large he was applying “Western” science, with Large responding that there is no such thing as Western science, only science.

During the presentation by a Forest Service staffer, the reason for the continued suspension of the leases in the Badger – Two Medicine area were said to be the result of a “pending lawsuit” by several environmental groups against the Forest Service. The lawsuit challenged the process by which the lease was granted.

After the meeting, the Sun Times asked for, and received, confirmation that a 1993 lawsuit was the reason for the current suspensions.

Finding it odd that a lawsuit in a Federal Court would still be pending after 21 years, the Sun Times searched legal databases for any current litigation regarding the lease. Other than the current suit before the D.C. District Court filed by Sidney Longwell, no cases were found. The Sun Times asked Ms. Strathy, via email, to provide details on the case. She responded with a copy of the original complaint: National Wildlife Federation, et al v. Dale Robertson, Chief, United States Forest Service, et al. Filed in the U.S. District Court in Great Falls, the case was heard before Senior Judge Paul G. Hatfield.

While the Sun Times is still working to acquire a complete copy of the case, the litigation appears to be a tactic by the plaintiffs and defendants to delay the drilling of the approved well.

The Sun Times was able to obtain a copy of a fax that was sent from the “USDA FS Lewis & Clark NF,” according to the heading inserted by the fax machine at the Forest Service office in Great Falls. The 21 page fax was sent at 14:20 (2:20 p.m.) on February 20, 2002.

Pages 20 and 21 of the fax are the dismissal, with prejudice, of the lawsuit. The dismissal was signed on March 10, 1997 by Judge Hatfield.

Judge Hatfield’s order reads, “IT IS HEREBY ORDERED that the [Court] Clerk administratively terminate this action in the records, without prejudice to the rights of the parties to reopen the proceedings for good cause shown, for the entry of any stipulation or order, or for any purpose required to obtain a final determination of the litigation.”

The order continues, “If, within SIXTY (60) days of a determination by Congress as to whether the properties involved in this litigation should be included in a wilderness designation for the area, the parties have not reopened for the purpose of obtaining a final determination herein, the action shall be deemed dismissed with prejudice.

DATED this 10th day of March, 1997.”

While the Forest Service claims the case is pending, the cover letter of the fax, in a handwritten comment from a Forest Service staffer, reads “…here is probably the most pertinent correspondence since ’96 or so…” Another faxed page uncovered by the Sun Times seems to indicate that the office for Lewis and Clark National Forest received the Judge’s dismissal on March 20, 1997.

The judge’s order has two parts, both dismiss the environmental groups’ case, but the first part of the order states the dismissal is without prejudice. To dismiss a suit without prejudice means that the plaintiff in the case may bring the matter before the court again.

In the second part of the order, Judge Hatfield has given Congress sixty days to begin the process to make the properties a wilderness area. Congress did not approve the request by Senator Baucus. As a result, the case – after the sixty days – became dismissed with prejudice, the legal concept of res iudicata, meaning that the matter cannot be raised again by the same parties.

Whether the case was dismissed with or without prejudice has no bearing on the fact that the case itself no longer has any legal bearing on the suspension. Sun Times contacted the Clerk’s office at the Federal Court in Great Falls to further confirm the case’s status. According to that office, the case is closed, and has been moved to the Federal Court Archives in Denver, Colorado. The office did confirm that the case was dismissed in 1997. Asked if, within the sixty days after this judge’s order any subsequent complaints were filed that are affiliated with the case, the clerk said that the case was closed. Since the judge’s order in 1997, “there has been no activity with this case.”

If the case was closed in 1997 and no litigation has been undertaken since, this may raise questions about the statute of limitations and how it may affect any further legal challenges to Mr. Longwell’s drilling permit.

Link to Black Hills Evergreen Article

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Recent photo of the Black Hills Advisory Committee (FACA)
Recent photo of the Black Hills Advisory Committee (FACA)

So sorry.. there was a “here” in the original post that didn’t have the link. HERE is the link.

I am solely responsible for choosing the excerpts. I felt I had to excerpt, because although the whole thing was worth reading, it was too long for one post. Maybe I should’ve had several posts.. but then the discussion would have been in each post. Anyway, I am not allowing comments on this post because it would be better in my opinion if all the comments were on the previous post here.

Update: Thanks to the Black Hills for the recent photo of their FACA Committee!

Black Hills and Region 1 Comparison : Appeals and Litigation

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Black Hills FACA Committee
Black Hills FACA Committee

This is from Barry Wynsma in Evergreen. Thanks to Jim Petersen for permission to repost. We have discussed the Black Hills success story in terms of litigation and appeals before. here and here. There are several other posts about the Hills you can find by searching in the search box.

There are many notable things about the Hills, including the fact that they have a formal FACA committee (photo above).

It’s fairly long and worth reading in its entirety, but I focused on this section that talks about litigation. Feel free to comment on any of the other parts as well.

The Alliance for The Wild Rockies, The Wild West Institute, The Lands Council, The Native Ecosystems Council, Friends of the Clearwater, Etcetera…

Another reason – maybe the reason – why comparing the Northern Region with the Black Hills National forest may not be equitable is that the sheer number of species that have to be dealt with in Region 1 makes its national forests huge and easy targets for environmentalists who oppose active forest management.

During fiscal year 2012, there were 140 appeals filed in the Northern Region5. As of August of 2013, 44 more appeals were filed in the Northern Region. Of those, 16 were against projects that included commercial sales of forest products [personal communication with FS]. Also as of August 2012, personnel in the R1 regional office told me the appeals/objections were holding up about 225 million board feet of commercial timber sales.

By comparison, the Black Hills National Forest received 3 appeals [actually objections under the “218” rules] in 2012 and none in 2013.

In referencing the Forest Service Appeals and Litigation website6 I can see that in the Northern Region, the Alliance for the Wild Rockies, The Land’s Council, Friends of the Clearwater and the Native Ecosystems Council seem to like to appeal all projects that involve the commercial sale of forest products. Readers that check out this website will also see other groups and individuals that have made it their agenda to appeal commercial timber sale projects.

In comparison and referencing the same Forest Service website, Friends of the Norbeck, Prairie Hills Audubon Society and the Biodiversity Conservation Alliance appears to be the only environmental groups that occasionally appeal projects on the Black Hills National Forest.

The Government Accountability Office [GAO] provided data on Forest Service appeals and litigation for the period 2006-20087 for fuels reduction projects, not necessarily including all projects that involve commercial sale of forest products.

Excerpted from the GAO report are the following findings:

“In fiscal years 2006 through 2008, the Forest Service issued 1,415 decisions involving fuel reduction activities, covering 10.5 million acres.

Of this total, 1,191 decisions, covering about 9 million acres, were subject to appeal and 217-about 18 percent-were appealed. Another 121 decisions, covering about 1.2 million acres, were subject to objection and 49-about 40 percent-were objected to. The remaining 103 decisions were exempt from both objection and appeal. Finally, 29 decisions-about 2 percent of all decisions-were litigated, involving about 124,000 acres.

For 54 percent of the appeals filed, the Forest Service allowed the project to proceed without changes; 7 percent required some changes before being implemented; and 8 percent were not allowed to be implemented. The remaining appeals were generally dismissed for procedural reasons or withdrawn before they could be resolved. Regarding objections, 37 percent of objections resulted in no change to a final decision; 35 percent resulted in a change to a final decision or additional analysis on the part of the Forest Service; and the remaining 28 percent were set aside from review for procedural reasons or addressed in some other way. And finally, of the 29 decisions that were litigated, lawsuits on 21 decisions have been resolved, and 8 are ongoing. Of the lawsuits that have been resolved, the parties settled 3 decisions, 8 were decided in favor of the plaintiffs, and 10 were decided in favor of the Forest Service. All appeals and objections were processed within prescribed time frames-generally, within 90 days of a decision (for appeals), or within 60 days of the legal notice of a proposed decision (for objections).”

Note that this report found that of the projects involved in this report, 18 percent were appealed, 40 percent were objected to and “only” about two percent were litigated. Some environmentalists like to use this two percent figure to downplay the significance of their commercial timber sale appeals.

While this may be true on its face, it reminds me of the Forest Service claim that more than 90 percent of all wildfires in the U.S. each year are put out before they become catastrophic. Whether it’s a big fire or a big lawsuit, the two percent we are discussing is causing significant damage to the environment, to the ability for the Forest Service to manage timber stands that are suitable for commercial timber harvests and to the economic stability of the communities surrounded by national forests.

Looking at the GAO report again, Tables 7 and 8 show that the top five “serial” appellants [to coin Jim Petersen’s phrase] in the Northern Region for the period 2006-2008 includes the Alliance for the Wild Rockies with 35 appeals/objections, the Wild West Institute with 26 appeals/objections, The Land’s Council with 25 appeals/objections, Native Ecosystems Council with 13 appeals/objections and Friends of the Clearwater with 8 appeals/objections. The Northern Region had a total of 187 appeals/objections during this period from the above mentioned and other groups and individuals.

Tables 7 and 8 also provide comparative data for the Rocky Mountain Region, but not the Black Hills National Forest specifically. Even so, the entire region – which includes the BHNF – saw only 44 appeals/objections during the same time frame. The appeals were filed by the following environmental groups: Biodiversity Conservation Alliance, 13 appeals/objections; Colorado Wild, 5 appeals/objections; Prairie Hills Audubon Society, 4 appeals; Western Watersheds Project, 1 appeal; Great Old Broads for Wilderness, 1 objection, Sierra Club, 1 objection, Sinapu, 1 objection, Wilderness Workshop, 1 objection and; Wild Connections, 1 appeal.

All these appeals, objections and a small percentage of litigation has a catastrophic affect not just on those projects that have been directly targeted, but more often than not, they indirectly effect most if not all projects nationally that are undergoing environmental analysis and the NEPA process. This is especially true for those projects that entail commercial timber harvests. There is a ripple effect on the recommended level of analysis needed to satisfy the latest court case decisions in order to head off the future threat of litigation.

Because appeals and litigation often involve the issues of threatened, endangered and sensitive species (based on my personal experience for the past 23 years as a project leader and 33 years as a Forest Service employee), you can plainly see that those forests and regions that have more listed species will have a correspondingly higher level of difficulty navigating the appeals/objection/litigation process.

Barry was a 33 year employee of the Forest Service, the last 23 as a small sales and special forest products project leader on the Bonners Ferry Ranger District, Idaho Panhandle NF. I specialized in small tree and biomass utilization projects and was also a co-author of the Forest Service’s Woody Biomass Utilization Desk Guide.