MISSOULA — Montana senators Jon Tester and Steve Daines have rounded up a lengthy list of supporters for a bill to overturn a federal court decision on lynx protection.
Republican Daines and Democrat Tester join Rep. Mike Simpson, R-Idaho, and Rep. Collin Peterson, D-Minnesota, on the bill to reverse the Cottonwood decision, which found that the U.S. Forest Service must do a top-level review of new critical habitat for lynx under the Endangered Species Act.
The decision name refers to the Bozeman-based Cottonwood Environmental Law Center, which won the case before the U.S. 9th Circuit Court of Appeals last year. The ruling was essentially confirmed when the U.S. Supreme Court declined to hear a Forest Service appeal in October.
“This bipartisan legislation enjoys the support of diverse stakeholders and will protect Montana jobs and common-sense collaborative forest management projects that have been harmed by this court decision,” Daines wrote in an email.
“The Cottonwood decision could lead to endless red tape for folks working on timber projects, trail maintenance and conservation efforts,” Tester added in the same email. “To restore certainty for Montana mills and folks who work in the woods, we need to eliminate these hurdles created by the court and get this bipartisan bill signed into law.”
“I wish they had consulted me first,” replied John Meyer, the lead attorney at Cottonwood Environmental Law Center. “They are seeking to completely overturn or deform part of the Endangered Species Act. That should be of concern to all Americans.”
The list of 33 supporters includes 10 timber products groups such as the Montana Woods Products Association and Washington Contract Loggers; eight conservation groups including the National, Montana and Idaho Wildlife Federations and Wildlife Management Institute; and three agricultural groups including the Montana Stockgrowers and the National Cattlemen’s Beef Association. It features a number of hunting and fishing groups, such as Trout Unlimited, the Rocky Mountain Elk Foundation and Boone and Crockett Club.
Tom France of the National Wildlife Federation in Missoula added that the legislation was a product of widespread consultation. He disagreed with Meyer about how much change it might impose on the Endangered Species Act.
“Both Daines and Tester have been very careful in crafting a very targeted bill,” France said. “The conversations we’ve had with them are very responsive. And when you see a bill that really proposes significant changes in the ESA, you will know it. It’s not going to sneak up on anybody. The National Wildlife Foundation is very concerned about weakening protections and we’ll oppose that.”
The Cottonwood decision found that the Forest Service has to take a big-picture look at how it protects lynx critical habitat across 12 million acres touching 11 national forests. It grew out of a controversial mishandling of lynx policy dating back to the predator’s original ESA listing in 2000.
A 2006 critical habitat map left out all national forests, but an investigation found that former George W. Bush administration official 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.
Daines’ office consulted with the Obama administration Justice Department in crafting the bill, which takes the same position the Forest Service argued before the 9th Circuit. The agency claimed it was more effective to address lynx habitat concerns on a project-by-project basis, rather than redoing full consultation with the FWS.
“When they say they’re upholding the Obama Forest Service, that’s different than the Obama Fish and Wildlife Service,” Meyer said. “And the Fish and Wildlife Service told the Forest Service if new critical habitat is put in place, you need to consult at the agency level.”
Not quite, according to American Forest Resource Council attorney Lawson Fite. While he acknowledged that the critical habitat maps from the original consultation were flawed, the on-the-ground protections for lynx remain in place. Those include checking snowshoe hare prey populations, winter snowpack levels, potential denning sites and the matrix of habitat connectivity.
“Any project that might affect lynx must be analyzed for effects on those elements,” Fite said. “That’s going to happen whether or not you do plan-level consultation. The bill basically insures that those procedures are still followed, but made in way that you don’t do things that don’t have meaningful conservation benefit.”
The Forest Service estimates 80 forest projects are on hold because of legal challenges based on the Cottontwood decision in Regions 1, 2 and 4. Region 1 challenges include the East Reservoir Restoration Project in the Kootenai National Forest and the Colt-Summit Restoration and Fuels Reduction Project in the Lolo National Forest.
Those Region 1 challenges in lynx critical habitat accounted for about 29 percent of the planned fiscal year 2017 timber harvest volume, amounting to 95.3 million board-feet of lumber on 17,764 acres.