AWR Blog

Environmental Groups no Strangers to Courthouse

by Daniel Person and Carly Flandro, Chronicle Staff Writers

At her home outside Three Forks last week, Sara Johnson was printing out plans for a federal logging project in South Dakota’s Black Hills.

If things go the way they often do, Johnson will submit comments on the project, visit the site where the logging is proposed and then appeal the federal government’s intent to proceed with the project.

If the tree-cutting plan proceeds despite her objections, then she, and the Native Ecosystem Council she founded and runs, will sue to stop it.

When forest managers and politicians in southwest Montana complain about frivolous lawsuits, abuse of the courts, serial litigants or frequent filers, they’re most likely talking about Johnson’s group or the Helena-based Alliance for the Wild Rockies. Or both.

And Johnson makes no apologies for her strategy.

“I’ve never seen a logging project I’ve liked,” she said last week.

Forests are vital for native species and logging projects hurt forests, she said. So she’ll do anything she can to stop the logging.

“I don’t think saving wildlife is radical,” she said. “We’re interfering with corporate America, so we have a bad name. The other environmental groups do nothing. They want other people to be like them. I’m not doing this to be popular. I don’t care how many people hate us.

“We’ve saved a lot of public forestland from the saw and we’re going to keep doing it,” she said.

Of the 10 U.S. Forest Service regions in the country, Region 1 — which covers Montana, the Idaho panhandle and North Dakota — was sued more than any other region between 2006 and 2008, according to a U.S. Government Accountability Office report released in March 2010.

Much of that is due to the Alliance for the Wild Rockies and the Native Ecosystems Council.

The federal report shows that the two groups appealed, objected to or litigated Forest Service “fuels-reduction projects” a combined 55 times between fiscal year 2006 and fiscal year 2008.

The Alliance alone was responsible for 42 of those, making it the most prolific filer of appeals and lawsuits against the Forest Service in the entire nation, according to the GAO report.

Johnson’s group comes in fifth on the list.

“You can look at that and ask, do we do worse work here? Or is there something else at play?” said Mary Erickson, Gallatin National Forest supervisor.

Mark Petroni says yes to the latter.

Since retiring from his post as Ennis District ranger in the Beaverhead-Deerlodge National Forest, Petroni has been vocal with his view that the Alliance and NEC act in bad faith when challenging projects. The law requires that people who appeal projects first participate in its scoping process, when the parameters and details of the project are ironed out. But those groups participate only so they can challenge later, he said.

“When a project was proposed, most all the groups comment one way or the other. Corners are rounded to address the scoping comments and then we move forward,” Petroni said of a typical project. “Virtually all the groups we worked with, with the exception of two, were easy to work with. We were able to find common ground with them.

“It was certainly obvious to me that the objective of the Alliance for the Wild Rockies was to stop logging on public lands, for whatever reason,” he said.

But while numbers suggest that groups in Montana might be quicker to sue, numbers also suggest that the lawsuits are not without merit.

Since 2008 on the Gallatin alone, three logging projects – one in the Boulder Valley south of Big Timber and two near Smith Creek in the Crazy Mountains – have been stopped by federal judges who found the Forest Service had in some way violated federal environmental law or its own policies.

“We win because they violate the law — I don’t know why else they think we win,” Johnson said. “If they weren’t violating the law, we wouldn’t win.”

But Erickson said following environmental law isn’t like following the speed limit. “I don’t think it’s as simple as to say, ‘Just follow the law,'” she said. “A lot of things aren’t clear. The Forest Service does its due diligence interpreting the law and regulations and executive orders. The challenges that go to the courts ask, ‘Did you interpret that right?'”

She described many of the lawsuits as “the kitchen-sink approach.”

“They’re going to make (many) claims and the government has to prevail on all of those. Nine out of ten is not good enough,” she said.

Of course, the Forest Service is not the only government agency sued by environmentalists. But the agency’s enormous holdings and missions to both preserve the forests and allow logging have made it the poster child for federal agencies spread thin by litigation.

Frustration over that conflict led several logging companies and wilderness groups to draft a plan to create more than 550,000 acres of wilderness on the Beaverhead-Deerlodge Forest while requiring 70,000 acres of the forest be logged over 10 years.

U.S. Sen. Jon Tester, D-Mont., introduced the plan as legislation in 2009.

Other lawmakers are taking aim at the Equal Access to Justice Act, a 1980 federal law meant to help working-class citizens and small groups challenge the federal government in court by paying their attorney fees – but only if they win the lawsuit.

The law applies to all litigants, but opponents to environmentalists in particular see the law as encouraging more lawsuits.

In recent years, the Gallatin Forest has had to pay large sums of money to groups that have prevailed in court. In 2008, it paid $47,500. In 1999, it paid $80,000. It owes money for a case it lost in 2009, but the fees have not yet been figured.

Rep. Denny Rehberg, R-Mont., helped push the equal-access law through during the early 1980s as a congressional staffer. Just last month, he apologized “to the people of America for having been a supporter” of the act.

Also last month, the U.S. House voted in favor of an amendment to nullify the law. Rep. Cynthia Lummis, R-Wyo., who sponsored the amendment, opened the floor discussion on the amendment by saying EAJA had been “hijacked by certain groups.”

“There are 14 environmental groups that have recovered $37 million by filing 1,200 lawsuits … thereby fueling the fire of suing the federal government over sometimes procedural issues,” she said.

She noted that in 1995, the government stopped keeping records of groups and individuals that received money under EAJA, making it difficult to find information about who gets how much.

Democrats at the hearing said they would support open records for EAJA, but that undoing the law was not the answer. Rep. Jim Moran, D-Va., said the law doesn’t help just environmental groups to bring court actions. It also helps small business owners, farmers, ranchers and timber workers, he said.

“You’re proposing an amendment that would slam the courthouse doors closed for any average citizen plaintiff,” he said.

The amendment passed 232 to 197, but still has to clear the U.S. Senate.

Without EAJA, the Alliance couldn’t afford to pay its attorneys and wouldn’t be able to sue, said executive director Michael Garrity.

That’s exactly the point, EAJA opponents say — the law allows green groups to sue over and over again.

But Garrity said they’re missing a more important question.

“Why is the federal government breaking the law over and over again?'” he said. “If they followed the law, then even if we sued we wouldn’t win and no fees would be paid out.”

The Forest Service is trying to reduce the number of lawsuits by putting a heavier emphasis on responding to concerns early in a project’s life and following forest plans to the letter, said Julia Riber, who works for the regional office, helping employees understand environmental law and interpret court rulings.

“One of the things we’re learning is to read what our plans and what our documents say literally,” she said. “That’s how the judges read them.”

However, Riber said, there is no silver bullet to avoiding lawsuits.

And as far as Johnson is concerned, as long as logging projects continue to be proposed, she won’t stop challenging them.

“Given the laws we have on the books, given the massive roading and harvesting that has already occurred, there is no more room left for going out and doing logging without doing harm to wildlife,” she said.

Originally published here.



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