Court upholds logging process
The state does not have to conduct financial accounting for each and every timber sale on school trust lands, the Montana Supreme Court decided last week.
The Montana Department of Natural Resources and Conservation's methods of accounting for logging costs and revenues through an annual, programmatic method is what the state Legislature has prescribed, the court decided in a 4-3 decision.
The ruling stems from a lawsuit filed by Friends of the Wild Swan in response to the 2003 Goat-Squeezer timber sale in the Swan Valley. At a time when lumber prices were depressed, the group alleged that there was no way to determine if the 10.2 million-board-foot timber sale would provide "the largest measure" of financial return to school trust funds, as required by a state statute.
The court focused on that particular statute in its ruling, along with a "strict accountability" requirement in the Montana Constitution.
The court acknowledged the statute requiring the "largest measure" of financial return from trust lands, but it also pointed to the state Land Board's discretion in approving timber sales, along with a series of associated laws that detail the board's duties in reporting to trust beneficiaries and instructing how trust assets must be valued.
The court also noted that the Legislature has twice rejected legislation that would have required harvest-level accounting for timber sales.
"It may be easy to second-guess the board's approach of conducting programmatic review of timber sales and the Legislature's two-time rejection of bills requiring harvest-level accounting of timber sales," the ruling states. "However, the question here is not whether more specific accounting is preferable or even desirable. Rather, the question is whether harvest-level accounting of proposed timber sales is required by law."
The majority determined that the Constitution's "strict accountability" provision is not "self-executing," and as such, "it is up to the Legislature to create the statutory means which ensure 'strict accountability.'"
The court conceded that additional timber-sale accounting would probably be advantageous to the State Land Board. But the majority opinion wryly suggests that detailed accounting, to the satisfaction of Friends of the Wild Swan, may not be.
"Certainly, a limb by limb, tree by tree, or acre by acre accounting is theoretically possible in the context of a timber sale, and undoubtedly such accountings would help the board in its evaluation of proposed timber sales," the ruling states. "Of course, at some level, additional analysis would probably be prohibitively expensive and counterproductive."
In his dissenting opinion, Justice William Leaphart wrote that "it makes no sense whatsoever" to consider the economic and ecological costs and benefits of timber sales through a "programmatic analysis" of all sales administered by the state during a year.
"The economic, ecological and silvicultural effects of a timber sale are inherently local," Leaphart wrote.
Ecological and silvicultural effects of individual timber harvests are typically analyzed through environmental reviews required by the Montana Environmental Policy Act. But Department of Natural Resources and Conservation officials have explained that the "comprehensive economic evaluations" sought by Friends of the Wild Swan are not conducted, largely because administrative costs are programmatic, extending from local state lands offices to the department's Forest Management Bureau in Missoula.
Justice James Nelson predicted the court's ruling will have lasting impacts on the accountability of the state Land Board.
"Now, absent being able to prove outright theft, graft or corruption, no future litigant such as Friends of the Wild Swan or Montrust will have a chance in litigation seeking to protect the trust from mismanagement and waste by the board," Nelson wrote in his dissenting opinion.
"The real problem is that the board will never know which individual harvests are winners or losers," he continued. "It will never know whether it is securing the largest measure of return, because it does not account for the harvests individually."
Arlene Montgomery, spokeswoman for Friends of the Wild Swan, said the litigation was pursued largely because there was no way to know whether the state would get a justifiable financial return for school trust funds - one of the stated objectives for pursuing the timber sale to begin with.
"We have no way of knowing whether these sales are generating money for the school trusts or not," she said. "There are going to be some sales that are going to be money losers and we don't know what those are because they don't track their costs."
The court's majority opinion came from Justices Jim Rice, Karla Gray, John Warner and Brian Morris. Dissenting were Justices Leaphart, Nelson and Patricia Cotter.
The Goat Squeezer timber sale, situated on about 1,866 acres straddling the Goat and Squeezer creek drainages, was active this year and is about 70 percent complete.
Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com