A critical shift in forest lawsuits?

We’ve long been detractors of theoretical, hugely expensive “critical habitat” designations by the U.S. Fish and Wildlife Service, and now we are even more so.

Several environmental groups have recently sued the Flathead National Forest over two logging projects in the Spotted Bear Ranger District that were expected to yield about 16 million board feet of timber over the next several years, and a pre-commercial thinning project that would have been scattered across the forest with treatments on about 3,600 acres. A common theme in the lawsuits: the projects would allegedly have illegal impacts on designated “critical habitat” for lynx and bull trout.

When those designation processes were underway, it was entirely predictable they would be used as a legal cudgel to stop active management on public, and who knows, maybe private lands.

This is how we put it on these pages in 2006: “Those who are most interested in critical habitat are bound to make the most of the designations once they are in place — through lawsuits aimed at curbing activities that may or may not disturb potential habitat for a listed species.”

So here we are with lawsuits to put a freeze on management of national forest lands, after years of costly litigation to compel designations so broad that there is nothing “critical” about them.

Take bull trout. The U.S. Fish and Wildlife Service ended up designating more than 22,000 miles of streams and rivers and more than 143,000 acres of lakes and reservoirs in five Western states, including Montana, as critical to the trout’s future. Even if there are no bull trout anywhere in the vicinity, those waterways can be locked up indefinitely with legal maneuvers.

 The litigants involved with the lawsuits on the Flathead Forest and other national forests are now putting critical habitat to the test in court. Forest Service officials contend they are managing for the protection of listed species in a manner that satisfies the Fish and Wildlife Service.

We hope they are right, because national forest lands need to be managed, and if critical habitat ends up being an effective legal weapon to freeze forest managers in their tracks, expect to see it used much more in the future.