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Lynx and loggers and laws - threatened and endangered players in the timber policy debate

From the Can Montana’s timber industry outgrow its history? series
  • 7 min to read
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Employment still awaits loggers like Sam Rodgers of J-S Timber Falling, seen here working a state Forests in Focus project at the top of Pattee Canyon. Several proposals in Congress could greatly change availability of timber for harvest in Montana.

TOMMY MARTINO, Missoulian

Spotted owls don’t fly in Montana.

But like the proverbial butterfly wingflap in New Mexico stirring up a hurricane in China, spotted owls in Oregon blew down the timber industry in Montana. A quarter-century later, people see the spotted owl storm in one of two very different ways.

Sen. Steve Daines, R-Montana, points to the 1990 Endangered Species Act listing of spotted owls as the start of the industry’s troubles.

“This listing and resulting litigation was a watershed development that encouraged and gave like-minded obstructionist groups a blueprint for more litigation and greatly contributed to the fall of the timber supply from federal lands,” Daines states in a timeline review of national forest policy provided to the Missoulian.

“There have been hundreds of lawsuits against vegetation management projects over the past decade, and this litigation – and fear of litigation – has slowed or altogether blocked timber sales and helped bring about what former Forest Service Chief Dale Bosworth called excessive and inefficient process, or ‘analysis paralysis.’ Moreover, federal timber supply has been far below pre-1990 averages even during strong housing markets and economic conditions. Thus it is simplistic and false to suggest that the persistent decline of federal timber is the result of diminishing demand or the ebbs and flows of prices.”

But is the problem protecting endangered species or the way we fight over that protection? In Montana, the Endangered Species Act struggle now focuses on a different threatened animal – the Canadian lynx.

In what’s known as the Cottonwood decision, the U.S. Supreme Court declined to review a 9th U.S. Circuit Court of Appeals ruling ordering the Forest Service to re-consult with U.S. Fish and Wildlife Service about lynx on its top-level forest plans.

The judges found the Forest Service had developed its own guidelines based on consultations with U.S. Fish and Wildlife Service using old, discredited lynx analysis from 2006. FWS changed its lynx guidelines in 2009 after acknowledging that previous agency leaders improperly left out 12 million acres of lynx critical habitat, including about 700,000 acres of national forest timberland.

Sen. Daines argues that top-level, agency-to-agency consultation “will greatly increase needless paperwork on the Forest Service and further delay much-needed restorative management work.” He believes the Forest Service should be allowed to impose the new FWS lynx guidelines on a project-by project basis – the same position the Obama Justice Department lawyers argued for the Forest Service. The Ninth Circuit judges said no – endangered species protection takes place at the top of the planning process.

A 10th U.S. Circuit Court of Appeals decision from 10 years ago agrees with Daines’ position. But the Supreme Court’s refusal in October to review the 9th Circuit ruling gives it law-of-the-land weight.

Daines is drafting language to overturn the 9th Circuit ruling by codifying that Endangered Species Act agency consultations should happen at the project level, not the forest plan. He hopes to insert the nullification into a must-pass bill during this December's lame-duck session of Congress. The change would not hurt the ESA’s power to protect animals and plants, he claims. 

Not so, counters John Meyer of the namesake Cottonwood Environmental Law Center in Bozeman.

“The single reason that Canada lynx were listed as a threatened species is because of the lack of management standards in forest plans,” Meyer wrote in a recent op-ed letter. He suggested Daines use his position to secure funding for Canada lynx research instead of second-guessing three levels of federal court judges.

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Sawyer Sam Rodgers prepares to fall a mistletoe-infested Douglas fir tree on the slopes below Kathy and Gary Kahl's Pattee Canyon home. Rodgers subcontracted with Intermountain Forestry Co. for the six-acre project, which improved the Kahl's fire safety on the steep hillside above Deer Creek.

Nullifying the Cottonwood decision is just one of many legislative moves to change how we harvest timber on public lands. Daines and Sen. Amy Klobuchar, D-Minnesota, have introduced the Environmental and Economic Benefits Restoration Act of 2016.

It gives state foresters more ability to do fuels-reduction projects that cross over federal lands, among other things. Daines also teamed with Sen. Diane Feinstein, D-California, on a letter proposing ways to limit legal challenges to Forest Service timber sales, including requiring courts to give substantial deference to Interior Department analyses when reviewing Forest Service actions and piloting a new mandatory arbitration program for public challenges to agency projects.

Sen. Jon Tester, D-Montana, and Daines have joined numerous colleagues asking for a better way to pay for wildfire expenses on national forests, which often consume more than 50 percent of the Forest Service’s annual budget. Montana Gov. Steve Bullock last summer got the Western Governors Association to push a National Forest and Rangeland Management Initiative aimed at increasing the number of collaborative projects involving state and federal land.

The Montana Woods Products Association has sent a 13-item wish list to Congressional leaders. It includes allowing the Forest Service to offer long-term contracts on timber projects, expand categorical exclusions that allow some projects to move with limited environmental or public review, and require the courts to balance short- and long-term ecological and economic impacts of timber projects. It also supports Daines’ call for nullifying the Cottonwood decision.

The current approach frustrates Tom France, regional director for the National Wildlife Foundation in Missoula.

“What we’re seeing now are bills offering more of the same,” France said. “I regret that Congress hasn’t come back to performance standards for the Forest Service. I wouldn’t recommend it for every forest, but we do have some Montana solutions that are ready for a test drive.”

France was deeply involved in Tester’s Forest Jobs and Recreation Act, which included a plan developed by the collaborative group Beaverhead-Deerlodge Partnership. That proposal tied together several existing wilderness and recreation area recommendations with a requirement that the Beaverhead-Deerlodge National Forest deliver 10 years’ worth of forest management activity. France said the Forest Jobs and Recreation Act critics attacked the proposal as a quid pro quo, acquiring wilderness acres with timber harvest and vice versa.

“This was a way to build more support for timber harvest, and more support for conservation lands,” France said. “It was a way to build broader support for all of that. We’ve kind of fallen away from all that. I felt comfortable looking at the B-D’s 700,000 acres of working landscape amidst 3 million acres of forest and saying we should be doing 7,000 acres of active management a year.”

Many of the congressional proposals aimed at December’s lame-duck session aim to return national forest harvest to pre-1990 levels. But that reflects an era when overuse of national forests was so blatant, it fueled an opposite legislative revolution.

 Degradation of the environment was an inescapable issue in the early 1970s. The recently deceased Leon Billings of Helena was the congressional staff architect who drafted the federal Clean Air Act of 1970 and the Clean Water Act of 1972.

In 1972, Montanans at their state Constitutional Convention declared “the right to a clean and healthful environment” first among the enumerated inalienable rights of Article II. Republican President Richard Nixon asked Congress to send him legislation protecting threatened wild animals and plants. Congress responded with the Endangered Species Act of 1973.

First nominated for Endangered Species Act protection in 1982, the spotted owl depends on Pacific Coast old-growth forests for its habitat. After the elusive bird made the list in 1990, Jack Ward Thomas, the recently deceased former chief of the Forest Service and University of Montana professor, drafted the North West Forest Plan in 1994. Based largely on Thomas’ research on spotted owls and their threatened forests, the plan drove down coastal “West Side” timber harvest by a factor of five.

“Ecosystem management is not just a timber sale,” Thomas wrote. “It’s putting the timber sale into a bigger picture, including watersheds, wildlife, roads and people’s needs and values … . Wood production will continue to be a significant part of our program, but we will look more at multiple variables, not just production.”

At the same time, the Forest Service was rocked by revelations of excessive mismanagement of national forests. “Phantom Forest” reports exaggerated how many trees could be cut without damaging the surrounding ecology. The General Accounting Office found the agency was losing hundreds of millions of dollars with below-cost timber sales in the early 1990s.

“The end of the road was in sight – the spotted owl crisis just accelerated it by 10 years or so,” retired UM forestry ecologist Alan McQuillan said. “The Forest Service timber program was in the black when they were cutting 5 or 6 billion board-feet of Douglas fir and pine in Washington, Oregon and California. Everywhere else was in the red – they were all subsidized by the West Side cut. So when the West Side fell, the whole program was in the red.”

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About 1 million cubic feet of wood gets added to Montana's forests every year. That can be seen as additional wildfire fuel, wildlife habitat or commercial timber, depending on one's perspective. Montana's congressional delegation has a large slate of potential changes for forest management prepared for December's lame-duck session. 

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Where one picks a starting point says a lot about how one tells the timber industry’s story. In 2002, McQuillan recounted his version to a Governor’s Conference on Montana Forests. He started with Montana historian K. Ross Toole’s account of illegal logging in the mid-1800s. Lots of other incidents compete for the title.

“The Bitterroot controversy broke open (in 1969) apparently because someone on a field trip convinced the bus driver to go round one more bend than the Forest Service had intended,” McQuillan noted. The revelation that massive clearcuts extended just beyond cozy shelterwood groves stoked public outrage.

Today, massive wildfires attract an equal amount of public concern. The current rationale for rewriting timber policy is that our public forests need to be managed for public safety. Montana adds about 730 million cubic feet of timber a year in its regular national forest land (excluding wilderness areas, parks and other protected places). Another 660 million cubic feet of timber dies each year. Montana loggers have been harvesting between 90 million to 140 million board-feet a year over the past decade.

The remaining 500-odd million board-feet attracts all the attention. All that may become fuel for wildfire if it isn't harvested through either commercial logging or hazardous fuels reduction. Or it may become wildlife habitat, contributing to a multi-age mosaic of forest types.

Most "forest health" projects don't provide enough commercial lumber or pulp to pay for themselves without government subsidy. Advocates counter that the subsidy is worthwhile if it keeps a logging infrastructure in Montana. With a corps of skilled woods workers and a network of viable mills, we can approach breaking even on those public-safety efforts. States that have lost their timber industry, such as Colorado and Arizona, must pay far greater costs per acre with no commercially offsetting benefit.

Environmentalists challenge the industry to prove it really intends to farm timber rather than mine it. According to Fish and Wildlife Service studies, northern spotted owls lost another 8 percent to 12 percent of their remaining habitat on privately owned timberlands due to logging between adoption of the Northwest Forest Plan and 2004. Loss on federal lands was about 0.3 percent in the same period, with three-quarters of that due to forest fire.

Meanwhile, other uses of the forest have multiplied. Annual consumer spending on outdoor recreation in Montana totals $5.8 billion, according to the Outdoor Industry Association. That produced 64,000 direct jobs in the state and $1.5 billion in wages (not including spending or jobs from hunting, fishing or wildlife watching). The state’s timber industry now employs about 7,500 workers who earned $330 million.

In Montana, judges have applied the Cottonwood lynx decision to halt major timber projects in the Kootenai, Gallatin and Custer national forests this fall. The rulings find that the presence of lynx in the woods doesn’t stop logging – the lack of a complete lynx management policy does. The Forest Service either needs to do the paperwork or Congress needs to relieve the agency of the Endangered Species Act burden.

Meanwhile, Montana’s remaining mills have the capacity to process 600 million board-feet of lumber. In 2000, that figure was a billion board-feet, and in 1989, it was 1.6 billion board-feet.

“It’s not like we’re supporting the same mills or capacity we had 25 years ago,” said Todd Morgan, timber analyst for the University of Montana’s Bureau of Business and Economic Research “But from an economic and financial standpoint, the sustainable level has got to be somewhere higher than we’re at right now.”

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Natural Resources & Environment Reporter

Natural Resources Reporter for The Missoulian.