Missoulian: Lynx rule becomes law of land, but will the law stand?

A court order to do more work on protecting Canadian lynx in Rocky Mountain forests could become a late-season battleground for congressional action this winter.

Last week, the Supreme Court let stand a U.S. 9th Circuit Court of Appeals ruling that the U.S. Forest Service has to take a big-picture look at how it protects critical lynx habitat across 12 million acres touching 11 national forests. While wildlife advocates claimed a major win for the Endangered Species Act, timber industry supporters vowed to rewrite laws to speed up logging projects.

“It’s now known as the Cottonwood decision, and it affects pretty much the whole Northwest,” said Julia Altemus of the Montana Wood Products Association. “I’m hoping we can find a path forward, either legally or by a congressional path.”

Altemus referred to Cottonwood Environmental Law Center, whose Bozeman attorney John Meyer argued the Cottonwood vs. U.S. Forest Service case.

“It’s our job to ensure the Forest Service is doing its job,” Meyer said. “We’re not looking to stop every timber sale. We’re trying to ensure we have communities that can log legally.”

The case dredges up the long history of lynx protection over the past 16 years. The U.S. Fish and Wildlife Service declared Canada lynx a threatened species under the Endangered Species Act in 2000. It wrote management guidelines affecting snowmobiling, wildland firefighting, logging and thinning projects and other forest activity.

In 2006, FWS mapped out lynx critical habitat in National Park Service lands, but left out national forests. The next year, FWS consulted with the Forest Service and concluded that its national forest standards and guidelines wouldn’t hurt the wild cat. The Endangered Species Act requires any federal agency whose actions might affect a threatened species to consult with FWS to avoid harming the species.

But an investigation into the critical habitat maps found that former Deputy Assistant Secretary of the Interior Julie MacDonald improperly excluded millions of acres of federal, state and private lands. MacDonald resigned and FWS redid its lynx habitat analysis, increasing the cat’s critical territory from 1,841 square miles to about 39,000 square miles.

However, the Forest Service didn’t restart its consultation process with its sister agency on its own lynx standards and guidelines. Cottonwood Law and others sued the Forest Service over that omission and won at both the U.S. District Court and U.S. 9th Circuit Court of Appeals.

The Forest Service asked for a rehearing before the full 9th Circuit, but the appeals court declined. The agency then appealed the case to the U.S. Supreme Court. Last week, the high court declined to hear the case. That makes the 9th Circuit decision the law of the land.

“I’m very disappointed that the Supreme Court declined to hear this case,” Sen. Steve Daines, R-Montana, wrote on Tuesday. “Allowing the 9th Circuit’s disastrous ruling to stand will greatly increase needless paperwork on the Forest Service and further delay much-needed restorative management work. This development makes it especially critical that Congress act to explicitly remove this crippling regulatory burden, and I will continue to fight toward that end.”

In a letter to the congressional conference committee leaders reviewing the Energy Policy Modernization Act, Daines asked for a new law stating 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.” The energy bill is an expected “must-pass” piece of legislation that may include many changes to forest policy and management when it’s voted on this winter.

Altemus said the Forest Service was doing an effective job applying lynx standards on a project-by-project basis. But forcing a region-wide review would kill progress in the woods.

“The court said the Forest Service has to do changes at the programmatic level rather than the project level,” Altemus said. “When the first ruling came out, it shut down the (Beaverhead-Deerlodge National Forest) program for two years. All sales had to be stopped. Nobody can afford to not have any fiber moving for that long. If this stands on the lynx, it could be applied on other species as well. We can’t keep fixing the forest plan every time something happens.”

However, the 9th Circuit judges noted the Forest Service already lost that argument. While the agency did study the lynx impacts of individual projects, the judges found that “overlooks a significant aspect of the consultation process.” To analyze lynx impact, the Forest Service looks at the Fish and Wildlife Service’s 2007 lynx guidelines “that were completed before critical habitat was designated on National Forest land,” the judges wrote.

“Here FWS discovered that its decision on critical habitat had been tainted by an ethical lapse in its own administrative ranks,” the judges wrote. “Re-evaluation of the data generated a drastically different result that justified vast designation of previously unprotected critical habitat. These new protections triggered new obligations. The Forest Service cannot evade its obligations by relying on an analysis it completed before the protections were put in place.”

They added that just because the Forest Service had incorporated the 2007 FWS lynx amendments in its plans, that didn’t mean the job was done. As long as the agency had jurisdiction over Canada lynx and its habitat, it was obligated to consider new information that could change management needs.

Meyer said that was particularly important because of the nature of the lynx’s threatened status itself.

“The Canada lynx wasn’t listed because of the effects of any one timber sale,” Meyer said. “The single reason why they were listed was the forest plans – they weren’t protecting Canada lynx. The Fish and Wildlife Service said the Forest Service needs to provide programmatic management direction – that’s why we list them.”

And the listing occurred before climate change was a major factor in the debate, Meyer added. Canada lynx almost exclusively eat snowshoe hares, and they’ve evolved to hunt the rabbits in deep snow when other predators like bobcats and mountain lions are at a disadvantage. As mountain snowpacks diminish, Canada lynx may find it harder to compete with those other predators if their critical habitat gets degraded by human development.

The judges emphasized the unique nature of the Endangered Species Act in such situations.

“Our opinion does nothing to disturb the Supreme Court’s holding … that when evaluating a request for injunctive relief to remedy an ESA procedural violation, the equities and public interest factors always tip in favor of the protected species,” the judges wrote. “As the Court made unmistakably clear: Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’”

That could be where Sen. Daines focuses his efforts in Congress. In his email, Daines noted that the 9th Circuit has 11 pending lawsuits and 26 pending Notices of Intent to Sue over Endangered Species Act consultations regarding lynx or bull trout (another threatened species). Several bills are jockeying for attention in the final months of this congressional session, including a variety of potential amendments to the Endangered Species Act or the National Environmental Policy Act.

On the other hand, Meyer said the problem could be solved if Congress would provide the Forest Service with the funds to do its own lynx homework and follow the existing laws. Part of the current delay, Meyer said, was because of political interference in biological research processes.

“If they want to talk about using their old plan, or take the Fish and Wildlife Service’s advice, that’s up to the Forest Service,” Meyer said. “Whatever they come up with, we’ll look at. We want to partner with the Forest Service. We don’t want to put small family operations out of business.”