GUEST COLUMN Duane H. Simons – The Cottonwood Decision Impacts You

May 15, 2017 pan-admin 2 comments


The Cottonwood Environmental Law Center is wasting taxpayer dollars by suing the government to stop much-needed forest projects. Their litigation offers no practical benefit to the Canada lynx.


But it will result in more bureaucracy and red tape, and no relief for our fire-prone forests.


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Cottonwood sued to block a project intended to reduce fire risk and protect watersheds outside Bozeman. The group didn’t show there would be any actual harm to habitat for the lynx. Rather, they convinced the 9th Circuit Court that the U.S. Forest Service didn’t properly consult with the U.S. Fish and Wildlife Service on its overarching forest plan following the 2009 designation of critical habitat for the species. Now actual on-the-ground forest projects on 18 national forests are threatened only because the Forest Service didn’t do enough paperwork.


If left in place, the Cottonwood case has far-reaching implications, significantly impacting forest projects, recreation and a variety of forest activities. It could allow anti-forest management groups to secure injunctions anywhere there is a listed species or critical habitat designation, and force the Forest Service and Fish and Wildlife Service to engage in the lengthy, costly process of Endangered Species Act “consultation.”


This consultation would not be about specific projects, but rather about the underlying forest plan, even if that plan is a decade old or more. And this plan consultation would be redundant since all projects still go through project-level review. Within the states of the 9th Circuit alone, there are 11 pending lawsuits and 26 pending “Notices of Intent to Sue” over plan-level Endangered Species Act consultations.


Both agencies, represented by the U.S. Department of Justice under Attorneys General Eric Holder and Loretta Lynch, argued the Endangered Species Act doesn’t require the re-initiation of consultation on completed forest plans. Only project-level analysis is required to assess a forest project’s potential impact on the species. The 10th Circuit Court agreed with the government’s argument in a similar case, but unfortunately the U.S. Supreme Court declined the Justice Department’s request to review the 9th Circuit’s ruling.


The Cottonwood decision is yet another example of how obstructive litigation contributes to agency analysis paralysis, and stops important projects that benefit our forests and communities, without adding anything in the way of protection of endangered species.


Serial litigants like Cottonwood are paid their attorney’s fees, giving them an incentive to keep suing. With the resulting non-management of our forests, it’s not surprising that more than half of the Forest Service’s budget is now spent fighting larger and unnatural catastrophic wildfires. The decision will not benefit species, but will only further drain agency budgets, delay forest health projects and encourage more litigation at the expense of the American taxpayer.


To save taxpayer dollars and support our economy, Sen. Jon Tester and Sen. Ron Wyden should work with Sen. Daines to pass legislation that reverses the Cottonwood decision and codify the position held by our federal agencies. While addressing the Canadian softwood lumber agreement is also important, Meyer’s call for action on this issue is just further deflection. Montana wood will not be economically viable as long as our national forests are left unmanaged, and groups such as Cottonwood are allowed to block forest projects on the taxpayer’s dime.

2 Comments on “GUEST COLUMN Duane H. Simons – The Cottonwood Decision Impacts You

  1. It is long past time for the Equal Access to Justice Act to be addressed, revised and possibly disbanded. It is not serving the original purpose intended. It has become the legal avenue enabling the INJUSTICE of federal funding of environmental groups using our tax dollars to lock up our natural resources and destroy entire industries. We must also question the research claimed in declaring endangered species. Are they really? There seems to be no oversight or accountability to anyone. Not only has the timber industry been virtually closed down but also the mining for minerals essential to restoring our manufacturing, and the essential agricultural productivity of our land, both private and public. Policy changes and reigning in of federal agencies are much needed to restore our economy and pay off our trillions of debt. We have been going in the wrong direction for far too long!

    1. Thank you for your thoughtful reply. Please take time to review our website and review the issues we are fighting for everyday!

      Thanks again

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