The Cottonwood Fix Means A Return To Healthy Forests

"The Cottonwood decision from the Ninth Circuit Court of Appeals in 2015 emphasizes how litigious groups have weaponized the Endangered Species Act to prevent forest management projects."

We are living in the age of the megafire. Catastrophic wildfires are burning larger and more intensely, leaving a wake of devastation. More than six million acres have already burned in the United States this year, destroying homes, claiming human lives, destroying wildlife habitat, threatening water sources and hampering recreational opportunities. And fire season isn’t close to over.

The good news is we know what we can do to reduce the risk of destructive fire in our public forests. Increasing forest restoration activities, primarily through mechanical thinning and prescribed burning, will clear out brush and other accumulated fuels to improve forest health and reduce the wildfire risk. The bad news is that before any chainsaws or drip torches can touch a federal forest, restoration projects must be approved by the federal government. This approval process requires navigating costly red tape and litigation obstacles that stand in the way. 

One such obstacle is the Endangered Species Act. Though the act has the goal of protecting wildlife, its regulations can prevent forest restoration work and ultimately have the opposite effect. The Cottonwood decision from the Ninth Circuit Court of Appeals in 2015 emphasizes how litigious groups have weaponized the Endangered Species Act to prevent forest management projects. If a new species is listed, new critical habitat is designated, or new information becomes available about an already listed species, then the U.S Forest Service must restart an overly extensive consultation process with the U.S. Fish and Wildlife Service about how the new species information will impact both the overarching forest plan and specific forest restoration projects. This ruling created an inordinately high standard that applies only in Montana and other states under the jurisdiction of the Ninth Circuit.

While some litigious groups claim the Cottonwood decision is needed to protect wildlife, in effect it can add significant delays and costs for projects needed to conserve wildlife habitat. Here in Montana, for example, the proposed Stonewall Project in the Helena-Lewis and Clark National Forest would have managed vegetation in ways that benefited wildlife, but it was delayed by Cottonwood litigation. While the project was tangled in legal delays, the Park Creek and Arrastra Wildfires burned over half of the proposed treatment area—destroying valuable wildlife habitat. 

The Cottonwood decision has already delayed 130 projects in the West, and the Obama administration even urged the U.S. Supreme Court to reverse it, noting that the decision “has the potential to cripple the Forest Service.” Without a fix, the Forest Service estimates that this extensive level of endangered species consultation will be required on projects across 36 national forests, diverting resources from other much-needed national forest management activities and endangering wildlife habitat that will remain vulnerable to catastrophic fires in the meantime. 

The good news is that Montanans in Congress are leading a bipartisan effort to fix Cottonwood. Senator Steve Daines’s (R-Mont.) bill to alleviate the endangered species consultation process passed out of committee last month with strong support across the aisle, and Senator Jon Tester (D-Mont.) has signed on as a cosponsor. Congress should move quickly to advance a Cottonwood fix so that more wildlife habitat does not go up in flames while projects are litigated and delayed. 

Healthy forests are essential for humans and wildlife alike. But if the barriers of burdensome litigation and regulation for better forest management aren’t removed, it is likely to all go up in smoke. 

Hannah Downey is the policy director at PERC (the Property and Environment Research Center) in Bozeman.