Senators Daines and Tester, and then U.S. Rep. Zinke introduce bill to reverse Cottonwood decision
On a recent webinar hosted by Western Governors Association the topic of consultation was front and center. The case that typifies this new strategy employed by environmentalist is the Cottonwood decision.
U.S. Senators Steve Daines and Jon Tester and Ryan Zinke, now Secretary of Interior, all of Montana, underscored the urgency in reversing the ruling of the Ninth Circuit Court of Appeals in Cottonwood Environmental Law Center v. U.S. Forest Service by introducing bipartisan bicameral legislation to do just that.
The bill seeks to codify the Obama administration’s position that federal agencies are not required to consult with the Fish and Wildlife Service at a programmatic level when new critical habitat is designated or a new species is listed.
Currently, the U.S. Fish & Wildlife Service consults with the U.S. Forest Service on projects that may affect endangered species; projects are routinely tailored to protect habitat for these species. The consultations are based on programmatic directions for each listed species.
The recent Cottonwood decision would mean that projects could be held up when changes to the programmatic directions are under consideration. These changes happen frequently based on new species being listed, critical habitat being revised or new scientific studies becoming available. This could also cause already approved projects to be re-considered.
Basically, this decision would likely result in extensive delays in projects, more litigation challenging forest projects and disrupt the forest service’s program delivery.
There are conflicting circuit court interpretations in the Ninth (Cottonwood Environmental Law Center v. Forest Service) and Tenth Circuits (Forest Guardians v. Forsgren) on this matter of wide-ranging import, but the Supreme Court denied the Department of Justice’s petition to settle the discrepancy.
Many organizations are supportive of the bill to reverse the decision, including Montana Wood Products Association, Montana Outfitters and Guides Association, Montana Stockgrowers, Rocky Mountain Elk Foundation, Center for Western Lands and the National Wild Turkey Foundation. Dale Bosworth, Retired Chief of the U.S. Forest Service and Greg Chilcott, Ravalli County (Montana) Commissioner are also supportive of the bill.
FSPW is among the supporters. “The Friends of Scotchman Peaks Wilderness applauds and supports the work of Sen. Daines and Tester and Rep. Zinke on bipartisan legislation to minimize problems and delays from the recent Cottonwood court decision,” said Doug Ferrell, FSPW Board Chair. “Based on our extensive participation in forest collaborative groups in both Idaho and Montana, we are aware that forest projects receive rigorous analysis of resource impacts. More layers of analysis are clearly not needed and would only serve to add expense and delay.”