by Michael Garrity

The Missoulian’s first editorial of the year supported first amendment rights for a few but not for all Americans. The Missoulian claims that the Forest Service is right to ask for a $100,000 bond for the purpose of preventing citizens from challenging illegal logging.

The Alliance for the Wild Rockies and our co-plaintiffs, the Ecology Center and Native Ecosystems Council, are not making any money attempting to stop illegal clearcutting by the Forest Service. In fact, the price of a legal challenge of a Forest Service timber sale can cost thousands of dollars. We incur expenses for research, up front legal fees, and court costs. These groups get no money in return. The only payment to anyone involved is for legal fees to attorneys who spend hundreds of hours working on these cases, with no promise of repayment. Even if these groups prevail, and valuable ecosystems are destroyed, no one has a right to claim payment for damages. If judges start attaching sizable bonds on top of this, then only the rich will have the right to challenge illegal government activities.

The Missoulian claims that we are using lawsuits to stall logging until it is uneconomical to log. This absurd claim is based on the presumption that the Forest Service is profitable. It most certainly is not. Logging is already uneconomical, with the forest service wasting millions of taxpayer dollars annually to subsidize the timber industry. All 44 of the national forests in eight Rocky Mountain States have a history of losing money through its logging programs. Under the Bush administration, timber sale losses for these 44 forests for 2000-03 are at $1,064 per acre. Despite its unprofitability, the Forest Service logs anyway.

The bond requirement is simply a distraction from the greater issue, which is that the Forest Service is failing to meet its obligation to protect wildlife, water quality, and forest health.

Our environmental organizations, as well as any citizen harmed by these actions, have both a constitutional and a statutory right to challenge the actions of the Forest Service. Specifically, the First Amendment to our Constitution includes the right to petition the government for a redress of grievances. A $100,000 bond requirement would prevent these groups, and most people from exercising these rights.

The Missoulian should not be so quick to support restricting the rights of some Americans, just because it disagrees with their actions. In this political climate, where our civil liberties and constitutional rights are being eroded on an alarming level, it is unfortunate that the press is willing to support the actions of an oppressive government. How much someone can pay, should not determine access to fundamental rights.

Missoulian Editorial

Bond condition ends no-lose litigation – Sunday, January 1, 2006

SUMMARY: Judge’s order requires logging foes to shoulder some risk in delaying timber sale.

Among economists, there’s a concept known as “willingness to pay.” The general idea is that people say they want all sorts of things, but a truer measure of what they value is what they’re willing to pay for and how much they’re willing to pay.

It’s in that context that we find intriguing a federal judge’s recent order requiring environmental groups to post a $100,000 bond to halt a logging project on a Montana national forest while they appeal a ruling permitting the logging.

U.S. District Judge Donald Molloy of Missoula said The Native Ecosystems Council, Alliance for the Wild Rockies and The Ecology Center must post a $100,000 bond while the groups appeal an unfavorable ruling in their lawsuit to block the Basin Creek timber sale near Butte. The groups obtained a restraining order barring completion of the logging pending the outcome of their appeal.

While we certainly don’t think substantial bonds should be required in all cases in which people or groups challenge the actions of government agencies, some situations seem to warrant them. This is one.

In disputes such as this one, there are two ways for logging opponents to win. One is on the merits of their case. The other is by playing out the clock. The timber in question involves trees killed by insects. Dead standing trees have value for lumber, but their salvage value diminishes relatively quickly as the wood deteriorates. Those who oppose salvage logging projects can prevail in court if they can show the Forest Service erred in its planning, preparation or administration of the timber sale. But they also can win on the ground if their lawsuits and appeals can drag things out long enough for the timber to lose its value and no one wants to buy it.

In this case, the Forest Service says the agency could lose up to $600,000 if logging is delayed a year – not an unlikely delay given the pace at which federal courts work. And, for what it’s worth, the timber already has been sold and belongs to R-Y Timber of Townsend. Its profits and its workers’ paychecks are at stake, too.

In October, Judge Molloy ruled against the environmental groups suing to block the Basin Creek logging. Molloy has never hesitated to smack down the Forest Service when the agency has erred, and, in fact, his rulings on past logging cases have made him a hero of sorts among environmentalists. In the matter of Basin Creek, however, Molloy concluded, “The Forest Service has demonstrated a threat to public health and safety due to increased potential for wildfire,” and that the merits of the proposed logging outweigh the risks associated with doing nothing with all that dead timber.

If Molloy has erred and misinterpreted the law or abused his judicial discretion, then his ruling will be overturned on appeal. In that case, the environmental groups would get their $100,000 back and, likely, have an opportunity to recover their legal expenses. If Molloy’s ruling is solid, then they’d have to forfeit the $100,000.

The groups undoubtedly say they’re in the right. But what’s their willingness to pay?

Even with the bond requirement, this isn’t a level playing field. The potential economic losses for the taxpayers and loggers is far greater than the $100,000 the environmental groups have at risk. Still, the bond requirement does encourage the litigants to weigh the merits of their case carefully and dampens somewhat the potential to prevail merely through the elapse of time.

Obviously, the authority to require people and organizations to post bonds must be exercised using good judgment. A strict pay-to-play system could limit people’s access to justice. But in this case, the environmental groups have had their day in court. They want another one. In a no-lose situation, why wouldn’t they?

Judge Molloy’s bond requirement seems a reasonable condition for delaying logging of timber that retains value for only a limited time. Judges routinely make case-by-case decisions, and they’re expected to use their discretion in the interest of justice. Requiring litigants to post reasonable bonds in cases where they’re unlikely to prevail on the merits, where delay creates the potential for economic hardship on others, serves – not undermines – the cause of justice.