Opinion

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Closing Range

Lynx, Bears and Polygons, Oh My

Breaking down the Ninth Circuit Court's decision in Alliance for the Wild Rockies v. Savage

In mid-July, the Ninth Circuit Court issued a decision in Alliance for the Wild Rockies v. Savage, a lawsuit intended to halt the East Reservoir project on the Kootenai National Forest in the mountains east of Koocanusa Reservoir.

Seems like forever, doesn’t it? I think that planning for East Reservoir began in 2010 (I don’t care enough to be more exact), with the Record of Decision coming at the end of 2014. The Alliance for the Wild Rockies (and their scruffy allies) opposed the proposal from the start, filing a notice of intent to sue in December 2014 and a 32-page complaint on May 11, 2015 before Montana District Judge Dana Christensen.

Among multiple issues, AWR also made sure to demand “declaratory judgment, injunctive relief, the award of costs and expenses of suit, including attorney and expert witness fees pursuant to the Equal Access to Justice Act,” blah blah.

Christensen ruled in July 2016 in favor of the project, so AWR turned to the Ninth Circuit, which granted an injunction pending appeal, based on lynx habitat “consultation” issues. Tick tock goes the clock — the appeal was argued and submitted in February 2017, and ticky tock, the ruling finally came down July 26, 2018.

Written by Richard A. Paez, one of two Clinton appointees to the Ninth (the other from Bush), the 25-page opinion addressed two issues, boiled down from the many, many arguments AWR tried (and mostly failed) to make. The first was the “reconsultation” that had triggered the injunction. With consultation now done, that injunction was lifted.

The other part, which AWR “won,” boils down to part of the project involving 2.2 miles of new, permanent road, in trade for removing 0.65 miles of U.S. Forest Service system road and 1.84 miles of  “undetermined” roads (apparently user created, never numbered) — a net removal of 0.29 miles.

The judges ruled there was “clear error” because the Forest Service “fail[ed] to specify” whether the “undetermined” roads had been included in a “baseline calculation” total of 1,123.9 miles of road in the “Tobacco BORZ polygon.”

The Tobacco BORZ polygon is a story in itself. BORZ (gosh, can’t we have fewer acronyms?) means “Bears Outside Recovery Zone.” Basically, BORZ isn’t “core habitat” INSIDE a recovery zone like the North and South Forks Flathead on the Flathead National Forest. It’s more like a transit zone for the occasional grizzly (black bears are already common) moving between the Glacier Park/Bob Marshall and Cabinets/Yaak “core habitats.”

Nonetheless, this secondary connection to grizzly recovery was the hook AWR needed to “win.” The Forest Service couldn’t document that 0.016 percent of the total road miles in the “polygon” (which itself seems to be an acceptable number) had been included in the official total back in 2009. Judge Paez decreed the “error cannot be treated as harmless” and AWR is “entitled to summary judgement.” So, the Kootenai will have to re-count road miles to get a new baseline and go back to Judge Christensen. Hopefully, that won’t take long, and this project happens before, say, a fire or beetles mess up the plan.

Now, why would AWR take such a hard line? Well, I happened to dredge up the amicus complaint submitted by a number of other “groups” in support of AWR. It was like trip down memory lane to Earth First! Days … after all, the Alliance was founded by Earth First! veterans. At least five of the “individual plaintiffs” have EF! backgrounds going back to the Cove Mallard tree-sit in Idaho in the mid-1990s if not further.

Here we are, 20 years later, and intransigent radicals still have the right under the law to waste everyone else’s time and resources, in this case, four years at least over an uncounted quarter mile of road? Thank you, Congress.

Was there good news? Surprisingly, yes. Under the Equal Access to Justice Act, parties suing the Feds are usually granted court costs if they “win.” A litigant can bring multiple counts, and lose all except one count, and still cash in for everything. But it depends on the judges. In this case, the Ninth Circuit decreed the “parties shall bear their own costs on appeal.”

Hope it hurts.