Missoulian: Daines Ups Heat to Overturn Lynx Decision

After the U.S. 9th Circuit Court of Appeals blocked a pair of logging projects near Bozeman on Tuesday, Sen. Steve Daines has increased his effort to make Congress overturn the legal decision.

Daines, R-Montana, sent a memorandum on Wednesday asking the Senate and House of Representatives to “promptly reverse” the Cottonwood Environmental Law Center vs. U.S. Forest Service ruling. Known as a “Dear Colleague” letter, Daines’ message asked for a statutory amendment codifying a different court’s decision.

“Today’s disastrous ruling against a commonsense project to reduce wildfire risk and protect Bozeman’s watershed makes it even more urgent that we enact meaningful forest reform that will remove this sort of absurd regulatory burden,” Daines wrote in a Tuesday email. The projects he referred to would have sent logging crews into the Bozeman and Hyalite creek drainages forming Bozeman’s water supply and along the East Boulder River southeast of Big Timber.

The Cottonwood decision looked at the way the U.S. Forest Service worked with U.S. Fish and Wildlife Service to protect Canada lynx populations on its federal acreage. FWS created lynx critical habitat guidelines in 2006 that did not include Forest Service lands. The Forest Service adopted those guidelines in 2007. But a subsequent investigation found Bush administration officials had improperly limited the lynx territory. A new analysis expanded the critical habitat from 1,841 square miles to about 39,000 square miles.

The Forest Service did not revisit its lynx guidelines after FWS issued its new analysis. Cottonwood Law and its clients sued, claiming the Forest Service’s forest plans should reflect the new material. The Forest Service countered that it could consider the new critical habitat guidelines on a project-by-project basis. Both a U.S. District Court judge and the 9th Circuit Court panel of judges ruled that was insufficient. The Forest Service appealed to the Supreme Court.

A federal district court had blocked the Custer-Gallatin forest projects and the 9th Circuit delayed its ruling until it learned what the high court would do with its Cottonwood decision. The Supreme Court declined to hear the Forest Service’s appeal on Oct. 11, making the Ninth Circuit decision the final ruling.

In an Oct. 15 interview, Cottonwood general counsel John Meyer called the legislative effort to change the ruling misguided, because it was a failure to protect Canada lynx in Forest Service forest plans that got the wild cat listed in the first place.

“It’s ironic that the whole reason we won the case was because of political interference,” Meyer said. “If (the Bush Administration) had allowed the Fish and Wildlife Service to designate critical habitat properly, the Forest Service wouldn’t have this problem on their hands. Does Daines plan on political interference again? He should stop playing biologist and let the biologists do their job.”

However, a separate case before the 10th Circuit Court of Appeals with similar circumstances reached a different decision in 2007. In Forest Guardians v. Forsgren, the appeals court judges agreed with the Forest Service that only project-level analysis is needed for new Endangered Species Act consultation.

In his letter, Daines asked for an amendment declaring the 10th Circuit decision was the correct one, and that the Forest Service shouldn’t have to reconsider its forest plans every time a new Endangered Species Act consultation might be needed.

“Unless Congress acts, this ruling will further increase the regulatory burden on federal agencies, drain limited budgets and consume much time and energy of agency personnel,” Daines wrote on Wednesday. That would happen “without improving analyses related to endangered species, which … are already protected by project-level consultation processes.”