A Summer Of Forest Litigation

A small collection of litigants, however, continues to derail forest management efforts with lawsuits—jeopardizing the environment they claim to be protecting.

Montana has been blessed with a relatively quiet fire year so far. Yet nearly 9 million acres in the state are at a high to very high risk of wildfire. With less immediate need to fight fire, this fall is an opportune time to focus on preventing future wildfires through forest management. Tools like mechanical thinning and prescribed burning clear out excess trees, undergrowth and other fuels, helping forest managers reduce the risk of catastrophic fire. 

Wildfires not only threaten human lives and homes, they also burn wildlife habitat, emit carbon, destroy watersheds and ruin recreation opportunities. For these reasons, much of the environmental community now recognizes the importance of responsible forest restoration and reduced wildfire risk. A small collection of litigants, however, continues to derail forest management efforts with lawsuits—jeopardizing the environment they claim to be protecting. 

Just this past summer numerous suits have halted beneficial forest projects. In June, a federal court blocked the Ripley Project in the Kootenai National Forest over a lawsuit from the Alliance for the Wild Rockies. The legal challenge contended that the project would harm grizzly bears and Canada lynx, both species federally regulated by the Endangered Species Act. Though the project was collaboratively designed to promote forest health and reduce wildfire risk in the national forest and Lincoln County—an area with some of the highest fire risk in the state—it is now on hold while the U.S. Forest Service and U.S. Fish and Wildlife Service update their analysis. 

Then, in August, another federal judge halted the Black Ram Project, also in the Kootenai National Forest. Similar to the Ripley Project case, litigants including the Alliance for the Wild Rockies, the Center for Biological Diversity and the Native Ecosystems Council argued that the Black Ram Project would negatively impact grizzly bears. And last week, litigants sued over the South Plateau Landscape Area Treatment Project in the Custer Gallatin National Forest, similarly asserting that the project will threaten grizzly bears and lynx. 

While conserving wildlife habitat is a laudable goal, stopping forest management activities can actually undercut that aim. If a wildfire burns through and torches the forest, the habitat is destroyed. This happened in 2021 when the Antelope Fire burned through the Klamath National Forest. In 2011, the Forest Service had initiated the Pumice Project to reduce wildfire risk, but litigants objected, alleging that the project would harm the threatened northern spotted owl. Lawsuits delayed the project for a decade. The Antelope Fire then ignited before any restoration work had begun, destroying the owl habitat that the litigants claimed to be protecting. 

Recognizing the long-term environmental benefits of forest management, the challenge is how to make litigation less disruptive. One approach would be for Congress to require lawsuits challenging forest restoration projects to be filed soon after a project is approved. Currently, lawsuits can be filed up to six years after project approval. A shorter deadline would let the Forest Service, private partners and investors know early on whether a project will likely be tied up in litigation, enabling them to better allocate their resources and, perhaps, walk away from a project. While this could provide early confidence to those funding or performing forest restoration, it would not significantly frustrate the ability to bring worthy cases. Many challenges are already filed soon after a project’s approval. And some states require lawsuits to be filed quickly, without unduly restricting litigation. California’s Environmental Quality Act, for instance, requires many challenges to be filed within 30 days.

Congress could also make litigation less disruptive by reforming injunctions. Currently, courts can enjoin projects pending the outcome of litigation and, if the challenge is successful, permanently enjoin them until the agency cures the error. This can give litigants a substantial amount of leverage while a lawsuit is proceeding, even if the lawsuit is ultimately unsuccessful, because people may be wary of investing in a project when they cannot be certain how long a case will take or what the outcome will be. To provide greater predictability, Congress could expedite cases concerning forest restoration projects by limiting how long preliminary injunctions can remain in place before a court ultimately decides a case. Given the substantial risks of doing nothing in areas that are already at high or very high risk of fire and that border populated areas, Congress could also impose a heavier burden to justify blocking a forest restoration project in these areas, such as limiting injunctions to cases where moving forward would be objectively unreasonable.

Litigation against forest restoration projects is far more common in Montana than in other parts of the country. Reasonable reforms to recognize the long-term environmental benefits of forest restoration and limit disruptive litigation are needed to help us advance collaborative efforts to conserve Montana’s forests.

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