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Alliance for the Wild Rockies v. Cottrel (9th Cir. - July 28, 2010)

By Shaun Martin

There's a forest fire in Montana. Trees are damaged, and some are going to die. So the Forest Service wants to allow a timber harvest of some of the dead and dying trees.

That makes sense to me. Sure, they're going to need to build some temporary roads to do the logging. But not that many, and they'll obliterate 'em after the logging. Seems fine.

The Forest Service wants this to happen quickly, without administrative appeals, because as the trees die, their volume and value diminishes. I can see that as well. We want to take these guys down before they fall and stuff, and during winter, we can't get to 'em. Arguably that's fine too, though I'm not entirely understanding the argument. Regardless, the Forest Service makes an emergency declaration and puts the logging up for bid, and tree clearing starts in late summer.

All of this makes sense to me. Mind you, part of the emergency declaration makes me a little wary, since it repeatedly refers to the fact that "the timber industry in Montana increasingly depends upon National Forest System timber supply as an essential element to keep their mills operational," which makes you suspicious about the true motivating factors here. But I'd still be largely inclined to allow the emergency declaration and let the timber harvesting go forward without allowing any appeals.

Except for two things. First, what's the alleged harm of delay resulting from administrative appeals? The Forest Service says that the delay won't harm the environment or anything, but instead will merely reduce the proceeds of the timber sales (since the trees will be smaller). I guess that could be a justification for circumventing the normal process. But how much are we talking here? $50 million? $500 million?

Nope. The Forest Service says that "[s]uch a delay [from allowing administrative appeals] would push the award of timber salvage contracts to late 2009 . . . . [and] by that time further deterioration of the affected trees will have resulted in a projected loss of receipts to the government of as much as $16,000."

Sixteen thousand American dollars?! You've got to be kidding me. Well, by all means, let's definitely disallow any environmental appeals then. We're talking a major revenue loss. The whole federal budget might need to be revised.

Second, the Forest Service's alleged need for speed here seems to be belied by the fact that the fire took place two years before they allowed the timber sales and declared an emergency. Why did they wait two years? No one knows. Not even the Forest Service's lawyer at oral argument. Somewhat inconsistent with a dire emergency, eh?

So I started out somewhat sympathetic to the Fire Service here. But didn't really end up that way. Nor did the Ninth Circuit. Which enjoined the "emergency" logging. Though half of it was already finished last year anyway.

Still. "As much as sixteen thousand dollars." Still brings a smile to my face.

Full post as published by California Appellate Report on July 28, 2010 (boomark / email).