There is within the United States government an entity called the Government Accountability Office (GAO) with the charge of examining, upon request of Congress, various functions within federal agencies. A request was made by U.S. Sen. Jeff Bingaman, D-N.M., and Rep. Nick Rahall, D-W.V., asking the GAO to review appeals and litigation filed against U.S. Forest Service projects for fiscal years 2006 to 2008.
Stated in the report, which can be found on the GAO Web site, nationwide in the nine regions of the Forest Service covering 108 national forests 18 percent of proposed projects were appealed while 2 percent continued on to litigation. If those numbers applied to Region 1, where Montana’s national forests are located, the subject would probably be moot. The reality is that nationwide numbers do not apply to Region 1, and, in fact, the numbers here greatly skew the totals.
In the use of mechanical treatment and commercial logging, four of the regions had zero lawsuits on proposed Forest Service projects, three regions had 3 percent or less, while Region 1 had 8 percent lawsuits on proposed projects.
Nationwide there were 10 entities that appealed 10 or more decisions with three of those located in Montana. They are the Alliance for the Wild Rockies, Native Ecosystems Council, and the WildWest Institute. The same is true of the 29 lawsuits filed nationwide with the same three entities acting as plaintiff in five or more decisions.
To put a closer perspective to the 40 percent of appeals filed in Montana during this period of time, with the national average percentage at 18, it needs to be pointed out that in seven regions the appeal average for mechanical treatment and commercial logging was under 18 percent and in one region zero appeals were filed – again greatly skewing the nationwide numbers.
In Region 1, which includes northern Idaho, there were 15 entities filing appeals on proposed commercial timber projects with the before-mentioned three groups leading the way with 67 of the 129 filed appeals. I must add these are the numbers only for Region 1 and the three entities collectively filed 23 more appeals in Region 4 along with five lawsuits in that region.
It only gets better, or maybe I should say worse, when breaking out the number and percentage of lawsuits filed by the same three entities in Region 1. The Alliance for the Wild Rockies filed eight lawsuits for a total of 28 percent of those filed nationwide with the Native Ecosystems Council filing 24 percent and WildWest Institute coming in at 10 percent. Do remember, however, that these percentages are only for Region 1 and do not cover the five lawsuits filed by the groups in Region 4.
In reality, the GAO report only covers three of the past dozen years that preservationist groups have been active in appealing and litigating Forest Service actions. In 2009, according to the PACER system of court tracking, the Alliance for the Wild Rockies filed nine civil lawsuits in Montana’s U.S. District Court. This means a lawsuit was filed about every six weeks for an entire year. All totaled, the Alliance filed 99 legal actions either in District Court or the Ninth Circuit of Appeals from 1999 to 2009.
In each filed case, a paragraph is inserted requesting payment of attorney’s fees and other court costs under the Equal Access to Justice Act. It is unknown at this time exactly how much taxpayer money has been paid out nationwide for lawsuits against the Forest Service because reporting of those numbers ceased in 1995. To right this wrong, a bipartisan trio of western members of Congress introduced the Open EAJA Act of 2010 to reinstate critical oversight and transparency for payments made under this statute. The introduced legislation would require agencies paying court-awarded legal fees, costs, or lawsuit settlements under EAJA to track, record, and provide that financial information to Congress and the public. More information will be forthcoming as HR 4717 moves its way through the system.
Unfortunately for the health of the nine national forests located in Montana, the GAO report is only a snapshot of three years and with the numbers coming in for 2009, it appears Region 1 will continue to lead the pack with regard to appeals and lawsuits on federal projects.
Ellen Simpson is executive vice president of the Montana Wood Products Association.