Time’s Up On The Cottonwood Fix

"The expiration of the temporary fix is a serious setback to forest restoration in Montana and around the West."

At a time when we need to be scaling up forest restoration to protect Montana’s forests from catastrophic wildfires, getting this work done just became more difficult. Last week, a partial legislative bandaid, known as the Cottonwood temporary fix, that shielded the Forest Service from expensive and time-consuming litigation expired. Without a permanent solution, our forests–and the humans and wildlife who depend on them–will be the victims. 

Nearly nine million acres across Montana are at high to very high risk of wildfire. These fires threaten our communities, scorch wildlife habitat and destroy watersheds. Restoring forests by removing overgrowth, deadfall and other fuels through mechanical thinning and prescribed burns are proven approaches to reduce wildfire risk, but actually applying these tools on the ground will become even more tangled in red tape and legal challenges now that the temporary Cottonwood fix has expired.

The Forest Service is careful to consider how forest restoration projects will impact endangered and threatened species and updates that analysis when new information arises. In 2015, however, the Cottonwood Environmental Law Center–a self-described “radical environmental” group from Bozeman–contended that was insufficient and sued to stop forest work on the Bozeman Municipal Watershed Project. The project sought to restore forest lands that provide the vast majority of the city’s drinking water, in addition to valuable wildlife habitat and recreational opportunities. The group opposed the project and argued that it was not enough for the Forest Service to halt work and analyze how the project would impact the Canada lynx and the Service also had to go back and reanalyze its general forest plan, a planning document that remains in place for fifteen or more years and has no on-the-ground impacts. 

Unfortunately, the Ninth Circuit Court of Appeals–which has jurisdiction over Montana and many western states–adopted what is now known as the Cottonwood decision and ruled that the Forest Service is required to reconsult over endangered species impacts at both the project and forest plan levels. This ran counter to decisions made in similar cases before the Supreme Court and another federal appeals court. 

The Forest Service realized that complying with the Cottonwood decision would force them to spend resources on burdensome litigation and red tape over plans with no direct impacts to wildlife instead of on restoring forests. The Obama administration even asked the Supreme Court to overturn Cottonwood, arguing that it would “cripple” the Forest Service. While the Supreme Court did not take the case, Congress passed a five-year partial fix to reduce the heaviest burdens, but it expired on March 23. 

The good news is that Montanans in Congress are leading a bipartisan effort to fix Cottonwood. Last week my PERC colleague Jonathan Wood testified before the U.S. House Natural Resources Committee on the need for a permanent fix to Cottonwood, emphasizing that the decision does not help recover endangered species and severely hampers forest restoration work. Forest Service Deputy Chief Chris French was also a witness at the hearing, and affirmed that “there was really no conservation benefit.” In addition, he estimated that 87 forest plans would now be challenged, and completing unnecessary and duplicative analysis for all of these plans would take up to ten years and cost tens of millions of dollars. 

The Forest Service does not have the luxury of surplus time or resources when it comes to stopping the wildfire crisis. These resources that will be spent on paperwork and in courtrooms without any added benefit to imperiled species should instead be applied in our forests. For these reasons, a wide range of conservation groups including PERC, Rocky Mountain Elk Foundation, and the Wildlife Society support a permanent Cottonwood fix. 

Cottonwood erects unnecessary red tape and encourages special-interest litigation that hinders the Forest Service’s goals of reducing wildfire risk and restoring forest ecosystems. The expiration of the temporary fix is a serious setback to forest restoration in Montana and around the West. Congress should act now to correct the decision and help fix our forests.   

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