U.S. SENATE — U.S. Senators Steve Daines and Jon Tester today testified in front of the U.S. Senate Committee on Environment and Public Works on their bill to reverse the ruling of the Ninth Circuit Court of Appeals in Cottonwood Environmental Law Center v. U.S. Forest Service.
The bill seeks to codify the position taken by the Obama administration 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 there are conflicting 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 in October 2016 the Supreme Court denied the Department of Justice’s petition to settle the discrepancy.
According to the U.S. Forest Service, 80 vegetation management projects and hundreds of millions of board feet are at risk due to Cottonwood.
Click HERE to watch Daines’ and Tester’s remarks.
Click HERE to download Daines’ and Tester’s remarks.
Daines delivered the following remarks:
“Thank you Chairman Barrasso and Ranking Member Carper for holding today’s hearing on the Senate Bill S.605, my legislation with Senator Tester to increase active forest management by fixing a damaging Court decision that just creates red tape and blocks much new projects on the ground with no benefit to the species.
“We burned over a million acres in Montana this fire season in fact the Ranking Member its the size of the state of Delaware. We lost two firefighters two in a sobering thought – lost their lives in Montana fighting those fires.
“Let me say up front of this legislation codifies the legal position taken by the Obama administration. Leaders of the Department of Agriculture, Department of Interior under the current administration likewise have expressed support for the core elements of my legislation.
“There’s a reason there’s two Montanans in front of you today on the hearing.
“Montana had two of the three most expensive fires in the nation – I just saw the brief from Secretary Perdue yesterday stacked ranked the most expensive fires, the top 20, Montana number one was the Lolo Peak Fire, south of Missoula and number three was the Rice Ridge Fire, near Seeley Lake.
Furthermore, Representative Mike Simpson and Representative Collin Peterson have introduced bipartisan companion legislation in the House so we’ve got this from a bipartisan bicameral viewpoint, as well administrative support. It’s also supported by dozens of organizations, several sportsman and conservation groups, as well.
Simply put, it has strong bipartisan roots and strong bipartisan support. S.605 responds to the Ninth Circuit ruling in the U.S. Forest Service versus Cottonwood Environmental Law Center – that the Forest Service is required to do an extra layer of plan level consultation with the U.S. Fish and Wildlife Services following the designation of critical habitat for the lynx species.
“To be clear the Forest Service and Fish and Wildlife Service were already conducting robust scientific analysis with regard to lynx habitat at the project level, so these agencies were and are fully committed to the conservation of the species.
The Cottonwood ruling stands in contrast with a 10th Circuit ruling on a related case in 2007, unfortunately in October 2016, the Supreme Court declined the Obama administration’s petition to resolve the conflicting Circuit Court opinions which effectively upholds the Ninth Circuit ruling.
As highlighted by President Obama’s Department of Justice the Cottonwood ruling has and I quote the “potential to cripple the Forest Service and BLM’s land management functions.” DOJ also highlighted that this decision substantially increases unnecessary paperwork requirements without any conservation benefit and far from being just a case about the lynx – the Department of Justice noted that there are more than 850 listed species in the geographical area of the Ninth Circuit and emphasized the sheer volume of agency resources that would be required to adhere to the Court’s decision.
“We are seeing this firsthand in Montana, as the Forest Service is now prioritizing reconsultation with the U.S. Fish and Wildlife Service on the lynx first above other work like Grizzly Bear consultation and permitting projects.
“Today there are five forest management projects in Montana, comprising over 150 million board feet of timber that have been blocked through injunctions due to the Cottonwood decision.
“These projects were designed to achieve critical objectives such as reducing the risk of wildfires, improving habitat and protecting water quality.
“Several of these projects were developed through locally driven collaborative process that involved diverse stakeholders working together to improve forest health, and yet each one was stopped due to repeat fringe litigants capitalizing on the Ninth’s Circuits disastrous Cottonwood ruling.
“Perhaps the most alarming example and Senator Tester just alluded to it, was the injunction of the Stonewall Vegetation Project near Lincoln, Montana.
“This project was enjoined this past spring just days before the work was scheduled to begin, and about one month later guess what happened? Fires broke out on some of the very acres that would have been treated under this project. While I can’t say the project would have prevented the fire, the mere fact that wildfires occurred in areas that could not be treated due to the Cottonwood shows that we need to urgently pass my bipartisan legislation to statutorily reverse this decision.
“S.605 simply clarifies that federal agencies do not need to do the extra layer of unnecessary consultation that is required by the Cottonwood decision.
“This will statutorily fix right now this conflict we have of the Circuit Courts. Removing this burden will allow federal agencies to have more time to complete preventive work on the ground, but will also create good paying wood products jobs.
“I strongly believe this legislation together with other management and wildfire funding reforms should be passed into law this year. We say out in Montana, that either we are going to manage the forests or the forests are going to manage us.
“I look forward to working with this Committee and others to that end.”
Tester delivered the following remarks:
“Well thank you Chairman Barrasso and Ranking Member Carper and thank you to all the members on the Committee. It is a pleasure to be here today to talk about this important legislation and I also want to thank my colleague Senator Daines for sponsoring this important bill.
“In Montana and across this country we are experiencing an historic wildfire season. A changing climate, historic drought, longer summer, a crippled Forest Service resulting in a lack of forest management, turn Montana into a tinderbox. And all it took was Mother Nature to light it up – and she did.
“Over one million acres of Montana has burned and we’re not out of the woods yet. A dangerous and costly wildfire season has forced the Forest Service to burn through much of their budget and already start the fire borrowing process.
“In its 2015 Cottonwood decision the Ninth Circuit Court of Appeals ruled that the Forest Service can be required to continuously update its forest plans to protect an endangered species – even if it is already consulted with the Fish and Wildlife Service – even if it has updated forest plan and even continues to consult with the agency for projects under this plan.
“This means any forest management activity under that plan, from timber harvest to watershed restoration, could be put under an injunction for years while the plan is updated. And, there’s no guarantee that the plan won’t need to be updated again and again and again as new species are listed or their habitat areas are changed. All the while, the forest goes unmanaged.
“The Cottonwood decision has already led to injunctions on five vegetation management projects in Montana alone. One of those, the Stonewall Vegetation Project included fire mitigation work and part of that, burned this summer as well. Across regions one, two and four at least 80 projects are at risk.
“This bill is targeted, it’s a bipartisan fix to this court case. We need to support the recovery of endangered species there’s no doubt about that – but blocking forest management across the board is not going to help our forests.
“This legislation that you’re going to consider today, the Litigation Relief for Forest Management Act, will help address the real and pressing issues for our Forest Service that will help put saws in people’s hands, cut trees mitigate wildfire hazards, restore habitat, strengthen timber economy and maybe most importantly maintain our forest.
“It will ensure the requirements to be forest plans make sense and that the Forest Service will be able to get started on their projects, instead of being stuck in a constant bureaucracy and endless litigation. It will cut through red tape and allow for the Forest Service to spend more time in the woods and less time in the courtrooms. This legislation will help good forest projects move forward. These projects are carefully designed. They take input from Fish and Wildlife Service, they will take him put from the public and ideally they will hold up in court.
“The Forest Service to get the job done and win in court they need the resources to do the analysis. If the Forest Service spends over half its money in fighting fires that is less money for responsible forest management, it is less money to create recreational access, to create watershed protections and the due diligence that they need in order to succeed in court and produce a healthy forest.
“The Forest Service is already borrowing $300 million to cover firefighting costs this year. This depletion means it won’t be able to responsibly manage our forests making it harder to mitigate the impacts of wildfires.
“Sadly, the Senate seems incapable of addressing climate change in a responsible and tangible way and I think that’s a big problem.
“We may not be able to decide on how to tackle climate change today but we should be able to give the Forest Service the tools they need to responsibly manage our forests.
“The Litigation Relief or Forest Management Act is a good start but we will need to address the funding issues within the Forest Service as well.”
The text of the bill can be found HERE.
Daines and Tester introduced comparable legislation in the 114th Congress. Former U.S. Representative Ryan Zinke introduced the House companion.