Enough forest litigation; let’s try arbitration
| September 17, 2023 12:00 AM
Bad juju is drifting through the halls of the U.S. Federal Courthouse in Missoula.
How else to explain the court’s rejection of two forest restoration projects on the Kootenai National Forest in only 41 days. Judge Donald Malloy shut down the Black Ram Project on Aug. 17 and Judge Dana Christensen’s July 7 ruling upended the Ripley Project.
Lincoln County and the State of Montana have an agreement with the U.S Forest Service to restore — via thinning and prescribed burning — up to 10,000 acres of designated wildland urban interface per year to protect homes and forests from catastrophic wildfire.
Protection requires a manufacturing facility capable of processing removed wood fiber — an essential first step in protecting Interface homes and forests from wildfire.
Planning for a small log mill gave the economically depressed area hope for the future. Those plans are now up in smoke.
Black Ram and Ripley expose forest planning problems that beg for solution. Congress never intended for the 1980 Equal Access to Justice Act to become the weapon of choice for lawyers hellbent on destroying the synergistic relationship between national forests and the rural West’s timber economies. Yet that is what the anti-forestry mob and its lawyers have done over the last 30 years.
Andy Stahl, then a resource analyst with the Sierra Club Legal Defense Fund [Now Earthjustice] explained the rationale behind serial litigation in a 1988 “Adopt-a-Forest Workshop” in Portland, Oregon.
“Judges are like six-year olds,” Stahl told his audience. “They don’t know any more about forestry or national forests or the Forest Service laws than six-year-olds. What they react to is a good story, a story about the land that’s being destroyed. And that’s what you have to tell the judge.”
The Black Ram/Ripley story are best understood not as sing-songy tales about grizzly bears and old growth forests — which is what Malloy and Christensen heard from lawyers hired by the Alliance for the Wild Rockies, the Center for Biological Diversity and WildEarth Guardians — but as a fact-based story about the increasing wildfire risk in the 2.2 million acre Kootenai National Forest.
It took us several months to piece it together, but with the expert assistance of the Forest Service’s Forest Inventory and Analysis staff in Ogden, Utah, we were able to quantify the risk. Of 863.6 million board feet that grow annually, 363.4 million feet are killed by insects and root diseases.
The equivalent amount of gasoline — 266,556,163 gallons — would fill 4,846,457 fifty-five gallon drums.
Black Ram favored thinning and prescribed burning laid out in a matrix that replicated historic natural burn patterns.
Ripley favored a similar approach to protect the 1,600 homes within its federally designated Wildland Urban Interface. A wind-driven wildfire would incinerate all of these homes in a matter of hours.
The two court rulings send Forest Service planners back to the drawing board — a process that will take several years and is certain to invite more litigation.
Congress needs to sever the connection between the anti-forestry mob and the Equal Access to Justice Act. Taxpayers should not have to pay the legal fees for eco-terrorists that raise billions of dollars annually from their doners.
Let’s nix litigation in favor of baseball-style arbitration. You bring your best ideas for protecting forests and we’ll bring ours and three qualified arbitration judges will decide which ideas best meet the goals and objectives of the Forest Service’s decadal forest planning documents. No more bad juju.
Jim Petersen is the founder and president of the nonprofit Evergreen Foundation.