Mineral County an unlikely, feisty player in national legal drama
by John Q. Murray
A small county along the Montana-Idaho border with 82 percent U.S. Forest Service land and a population hovering around 4,000 souls, Mineral County was an unlikely player in a national legal drama.
Wildfires that burned nearly 40,000 acres around Superior and in the Upper Ninemile in 2000 prompted the Forest Service to recommend a large-scale restoration and salvage project--the Lolo post-burn.
Just as the logging work was getting underway in February, 2003, two environmental corporations, the Ecology Center Inc. and Sierra Club Inc., filed separate lawsuits against the project.
The Sierra Club had two main arguments: first, that the post-burn project should not proceed until total maximum daily load (TMDL) water quality studies were completed, showing how much sediment area streams and rivers could bear.
The Sierra Club also argued that logging proposed in “unroaded” areas could affect their future consideration as inventoried roadless areas and, possibly, as wilderness.
The Ecology Center lawsuit argued that the Forest Service was not ensuring the viability of old-growth-dependent species, as well as the black-backed woodpecker, which requires the habitat provided by wildfire. Without studies showing how much habitat is required to preserve species viability, the Forest Service should not be allowed to log burned areas, they said.
The Ecology Center's other principal claim was that NFMA requires the Forest Service to ensure that timber harvest will not irreversibly damage soil conditions. The brief said the Lolo had no soil standard in its forest plan and that the EIS called for soil data collection only after project approval.
When Judge Molloy granted a temporary injunction halting the project, Mineral County community members organized on behalf of the county's leading employer, Tricon Timber. The St. Regis mill had won logging contracts under the project.
That set the stage for courtroom drama in Missoula. Loggers carried handmade signs in a good-natured demonstration along Pattee Street in front of the federal courthouse, while Superior's mayor and school superintendent talked to Missoula news media about how important the logging project was to area residents.
Briefs submitted to the court on behalf of the intervenors summarized how Mineral County viewed the case.
Bill "Woody" Woodford, Superintendent of Schools, Superior: "The legal action initiated by the Sierra Club, the Ecology Center, and others can, if successful, lead to cutback or closure of our local mill, increased unemployment among our loggers and timber-related businesses. As an educator I am particularly dismayed that the environmental folks seem to have little regard for community and schools... Make no mistake, legal actions such as this can and do kill off small communities in the rural west. The sense of community and the bonds generated by schools, 4-H, the Bobcat Den and others are lost, the carefully woven fabric of community unravels and is lost for all time."
Judy Stang, Mineral County Commissioner. "We are acutely aware that market factors, trade agreements, and changing public perception and values have contributed to declining harvests and we understand that we have little control over some factors. What we cannot understand, and what we will not accept, is our exclusion from influence in those factors which we can control.
"Extreme environmental organizations with few, if any, ties to our communities have dominated the debate on utilization of public lands. Their agenda has driven national, regional and state policies to the detriment of the rural west...Prosperous communities have seen drastic declines and small communities have disappeared. Collapsing barns and buildings become fodder for the occasional tourist photo opportunity and souvenir collectors loot our heritage."
Angelo Ververis, Tricon Timber. "The environmental organizations will not stop because their primary focus is the end of logging on public lands...When folks are threatened they either run for their lives or pull together to fight the common enemy. We at Tricon are so proud and grateful to see that this community has started to pull together to fight this threat. ...We will take this battle into court and we will win this fight because it’s a fight for us, our kids, and our friends and neighbors."
Gordon Hendrick, Mayor, Town of Superior. "Many folks remember the devastating impact of the closure of Crown-Pacific (Diamond) on our community. The town of Superior, Mineral County, and the other communities suffered greatly. The immediate impact of unemployment was small compared with the increases in family stress, substance abuse, kids and families in crisis, loss of homes and residents in our communities...
"Unfortunately, we are now facing another challenge. Misguided and misinformed folks in the environmental community have filed suit to shut down timber sales on the Lolo National Forest...What will happen if the mill closes. Our small attempts at recovery will be inundated by a tidal wave of despair, the small gains will become insurmountable hurdles."
After everyone made their way inside, Mineral County Attorney M. Shaun Donovan spoke for the intervenors--the county, Superior, the Superior and St. Regis school districts, Tricon, and the Montana Forest Counties Coalition. Offering a summary of the sentiments expressed in the briefs, Donovan remarked on the legal arguments relating to wildlife species viability. He encouraged Judge Molloy in his ruling to also consider the viability of the people who live in timber-dependent communities.
A few weeks after the hearing, Molloy himself expressed frustration that forest management issues were so often being decided in his courtroom.
The courts have simply become "another tool in the debate" between environmentalists and timber-dependent communities, the judge said, a debate that ought to be conducted elsewhere, such as in Congress, rather than "arguing technicalities" in the courtroom.
“I don’t think the system is working,” Judge Molloy said in his Missoula courtroom April 1, 2003. “My sense of the law is I’m not supposed to be running the forest.”
Molloy initially threw out the Ecology Center case, while also pointing out in a footnote that its lawyer had distorted the meaning of one of the scientific papers in its argument.
In the Sierra Club case, Molloy threw out the "unroaded" area argument, agreeing that the term--coined by the post-term project team--referred to any area where a tree grows, rather than to the legal term "inventoried roadless area," which is eligible to become wilderness. Molloy pointed out that some of the so-called unroaded areas “are plainly never going to be eligible for any kind of wilderness or roadless designation, especially those that are squeezed between clear cut units.”
But he created a sensation by ruling that a watershed must have a TMDL water quality plan before any logging could commence.
Recognizing the far-reaching impacts of the decision, the state of Montana joined the Forest Service and Mineral County in seeking an expedited appeal. The Ninth took on the case and issued its ruling in December, 2003, overturning both of Molloy's Sierra Club decisions. The Ninth threw out the TMDL requirement, while ruling on the Sierra Club's behalf on the "unroaded" issue.
The decision effectively shut down most logging portions of the project, even before the Ninth got around to the Ecology Center appeal.
In Ecology Center, a three-judge panel voted 2-1 to overturn the third and last of Molloy's district court decisions, making him a perfect three-for-three on the Lolo post-burn case. Their ruling was nearly as bad as the TMDL decision, according to the intervenors' lawyers. The sole dissenting judge in the decision also criticized it as being far-reaching.
The decision itself drew a comparison to clinical drug trials in setting new higher, standards for foresters.
"Just as it would be arbitrary and capricious for a pharmaceutical company to market a drug to the general population without first conducting a clinical trial to verify that the drug is safe and effective, it is arbitrary and capricious for the Forest Service to irreversibly 'treat' more and more old-growth forest without first determining that such treatment is safe and effective for dependent species," the ruling stated.
The ruling, by Judge Ronald Gould, represented an extension of his previous Lands Council decision, the Ecology Center explained.
In the past, judges tended to defer to the decision maker where scientific issues were involved. But Gould took that on in Lands Council, establishing a judicial standard of review for scientific decision-making. Gould then cemented that standard as one of the two judges in the majority on the Lolo post-burn case, according to Ecology Center attorney Tom Woodbury.
“Basically, he said we’re not going to decide differences of opinion between scientists but we are going to at least look close enough that the science the Forest Service is relying on is valid, and that it has been verified,” he said.
Judge M. Margaret McKeown offered a scathing dissent, writing that the majority “crossed the line from reviewer to decision maker,” and lamented the majority’s extension of the Lands Council case as “an unprecedented incursion into the administrative process” that “ratchets up the scrutiny we apply to the scientific and administrative judgments of the Forest Service.”
“The majority changes our posture of review to one where we sit at the table with Forest Service scientists and second-guess the minutiae of the decisionmaking process,” she wrote.
Intervenor attorney Scott Horngren agreed, calling the decision "the death of deference." Previously, judges determined only whether a federal agency followed proper procedures according to the law. But in this case, the judges examined the raw field notes of an agency scientist, in effect, questioning the scientist’s professional judgment.
Mineral County Attorney M. Shaun Donovan said it just isn't feasible to have the forests managed by the courts. "There's no possible way the judiciary can make all decisions that have to be made in the forest."
The case has "massive implications" beyond the Lolo National Forest. It could potentially affect not just public land management, but all decisions by all government agencies, he suggested.
"I think this case raises some interesting issues in terms of the court deference to the agency and review of agency actions," Donovan said.
Horngren and the intervenors asked the U.S. Supreme Court to consider the case, but the U.S. Forest Service attorneys did not join the case. Had they done so, the Supreme Court might have accepted it, Horngren said.
With Gould's ruling established as law in the Ninth Circuit, the Ecology Center--by then reorganized and renamed as the WildWest Institute---wasted no time in demanding that the Lolo National Forest follow the judges' scientific methods.
Foresters were not allowed to use remote sensing or advanced mathematical techniques, but were required to physically visit every site under consideration for a project and take soil samples.
With the law established, the Lolo had few options. Costs soared and revenue plummeted for the Frenchtown Face stewardship project as the Forest Service spent an additional year working to the judges' new standards, and that year resulted in a million-dollar loss as market conditions changed.
Fortunately, it took only a little over a year for the Ninth to realize its mistake.
Horngren credited the Mineral County case with paving the way for the landmark Lands Council v. McNair decision.
"I think Mineral County should feel vindicated and I truly believe that the Supreme Court cert petition raised the profile of how activist the Ninth Circuit had become," Horngren said. "It wouldn't surprise me if Supreme Court justices or staff had conversations with Ninth Circuit counterparts after the cert petition telling the Ninth to get their house in order."
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A small county along the Montana-Idaho border with 82 percent U.S. Forest Service land and a population hovering around 4,000 souls, Mineral County was an unlikely player in a national legal drama.
Wildfires that burned nearly 40,000 acres around Superior and in the Upper Ninemile in 2000 prompted the Forest Service to recommend a large-scale restoration and salvage project--the Lolo post-burn.
Just as the logging work was getting underway in February, 2003, two environmental corporations, the Ecology Center Inc. and Sierra Club Inc., filed separate lawsuits against the project.
The Sierra Club had two main arguments: first, that the post-burn project should not proceed until total maximum daily load (TMDL) water quality studies were completed, showing how much sediment area streams and rivers could bear.
The Sierra Club also argued that logging proposed in “unroaded” areas could affect their future consideration as inventoried roadless areas and, possibly, as wilderness.
The Ecology Center lawsuit argued that the Forest Service was not ensuring the viability of old-growth-dependent species, as well as the black-backed woodpecker, which requires the habitat provided by wildfire. Without studies showing how much habitat is required to preserve species viability, the Forest Service should not be allowed to log burned areas, they said.
The Ecology Center's other principal claim was that NFMA requires the Forest Service to ensure that timber harvest will not irreversibly damage soil conditions. The brief said the Lolo had no soil standard in its forest plan and that the EIS called for soil data collection only after project approval.
When Judge Molloy granted a temporary injunction halting the project, Mineral County community members organized on behalf of the county's leading employer, Tricon Timber. The St. Regis mill had won logging contracts under the project.
That set the stage for courtroom drama in Missoula. Loggers carried handmade signs in a good-natured demonstration along Pattee Street in front of the federal courthouse, while Superior's mayor and school superintendent talked to Missoula news media about how important the logging project was to area residents.
Briefs submitted to the court on behalf of the intervenors summarized how Mineral County viewed the case.
Bill "Woody" Woodford, Superintendent of Schools, Superior: "The legal action initiated by the Sierra Club, the Ecology Center, and others can, if successful, lead to cutback or closure of our local mill, increased unemployment among our loggers and timber-related businesses. As an educator I am particularly dismayed that the environmental folks seem to have little regard for community and schools... Make no mistake, legal actions such as this can and do kill off small communities in the rural west. The sense of community and the bonds generated by schools, 4-H, the Bobcat Den and others are lost, the carefully woven fabric of community unravels and is lost for all time."
Judy Stang, Mineral County Commissioner. "We are acutely aware that market factors, trade agreements, and changing public perception and values have contributed to declining harvests and we understand that we have little control over some factors. What we cannot understand, and what we will not accept, is our exclusion from influence in those factors which we can control.
"Extreme environmental organizations with few, if any, ties to our communities have dominated the debate on utilization of public lands. Their agenda has driven national, regional and state policies to the detriment of the rural west...Prosperous communities have seen drastic declines and small communities have disappeared. Collapsing barns and buildings become fodder for the occasional tourist photo opportunity and souvenir collectors loot our heritage."
Angelo Ververis, Tricon Timber. "The environmental organizations will not stop because their primary focus is the end of logging on public lands...When folks are threatened they either run for their lives or pull together to fight the common enemy. We at Tricon are so proud and grateful to see that this community has started to pull together to fight this threat. ...We will take this battle into court and we will win this fight because it’s a fight for us, our kids, and our friends and neighbors."
Gordon Hendrick, Mayor, Town of Superior. "Many folks remember the devastating impact of the closure of Crown-Pacific (Diamond) on our community. The town of Superior, Mineral County, and the other communities suffered greatly. The immediate impact of unemployment was small compared with the increases in family stress, substance abuse, kids and families in crisis, loss of homes and residents in our communities...
"Unfortunately, we are now facing another challenge. Misguided and misinformed folks in the environmental community have filed suit to shut down timber sales on the Lolo National Forest...What will happen if the mill closes. Our small attempts at recovery will be inundated by a tidal wave of despair, the small gains will become insurmountable hurdles."
After everyone made their way inside, Mineral County Attorney M. Shaun Donovan spoke for the intervenors--the county, Superior, the Superior and St. Regis school districts, Tricon, and the Montana Forest Counties Coalition. Offering a summary of the sentiments expressed in the briefs, Donovan remarked on the legal arguments relating to wildlife species viability. He encouraged Judge Molloy in his ruling to also consider the viability of the people who live in timber-dependent communities.
A few weeks after the hearing, Molloy himself expressed frustration that forest management issues were so often being decided in his courtroom.
The courts have simply become "another tool in the debate" between environmentalists and timber-dependent communities, the judge said, a debate that ought to be conducted elsewhere, such as in Congress, rather than "arguing technicalities" in the courtroom.
“I don’t think the system is working,” Judge Molloy said in his Missoula courtroom April 1, 2003. “My sense of the law is I’m not supposed to be running the forest.”
Molloy initially threw out the Ecology Center case, while also pointing out in a footnote that its lawyer had distorted the meaning of one of the scientific papers in its argument.
In the Sierra Club case, Molloy threw out the "unroaded" area argument, agreeing that the term--coined by the post-term project team--referred to any area where a tree grows, rather than to the legal term "inventoried roadless area," which is eligible to become wilderness. Molloy pointed out that some of the so-called unroaded areas “are plainly never going to be eligible for any kind of wilderness or roadless designation, especially those that are squeezed between clear cut units.”
But he created a sensation by ruling that a watershed must have a TMDL water quality plan before any logging could commence.
Recognizing the far-reaching impacts of the decision, the state of Montana joined the Forest Service and Mineral County in seeking an expedited appeal. The Ninth took on the case and issued its ruling in December, 2003, overturning both of Molloy's Sierra Club decisions. The Ninth threw out the TMDL requirement, while ruling on the Sierra Club's behalf on the "unroaded" issue.
The decision effectively shut down most logging portions of the project, even before the Ninth got around to the Ecology Center appeal.
In Ecology Center, a three-judge panel voted 2-1 to overturn the third and last of Molloy's district court decisions, making him a perfect three-for-three on the Lolo post-burn case. Their ruling was nearly as bad as the TMDL decision, according to the intervenors' lawyers. The sole dissenting judge in the decision also criticized it as being far-reaching.
The decision itself drew a comparison to clinical drug trials in setting new higher, standards for foresters.
"Just as it would be arbitrary and capricious for a pharmaceutical company to market a drug to the general population without first conducting a clinical trial to verify that the drug is safe and effective, it is arbitrary and capricious for the Forest Service to irreversibly 'treat' more and more old-growth forest without first determining that such treatment is safe and effective for dependent species," the ruling stated.
The ruling, by Judge Ronald Gould, represented an extension of his previous Lands Council decision, the Ecology Center explained.
In the past, judges tended to defer to the decision maker where scientific issues were involved. But Gould took that on in Lands Council, establishing a judicial standard of review for scientific decision-making. Gould then cemented that standard as one of the two judges in the majority on the Lolo post-burn case, according to Ecology Center attorney Tom Woodbury.
“Basically, he said we’re not going to decide differences of opinion between scientists but we are going to at least look close enough that the science the Forest Service is relying on is valid, and that it has been verified,” he said.
Judge M. Margaret McKeown offered a scathing dissent, writing that the majority “crossed the line from reviewer to decision maker,” and lamented the majority’s extension of the Lands Council case as “an unprecedented incursion into the administrative process” that “ratchets up the scrutiny we apply to the scientific and administrative judgments of the Forest Service.”
“The majority changes our posture of review to one where we sit at the table with Forest Service scientists and second-guess the minutiae of the decisionmaking process,” she wrote.
Intervenor attorney Scott Horngren agreed, calling the decision "the death of deference." Previously, judges determined only whether a federal agency followed proper procedures according to the law. But in this case, the judges examined the raw field notes of an agency scientist, in effect, questioning the scientist’s professional judgment.
Mineral County Attorney M. Shaun Donovan said it just isn't feasible to have the forests managed by the courts. "There's no possible way the judiciary can make all decisions that have to be made in the forest."
The case has "massive implications" beyond the Lolo National Forest. It could potentially affect not just public land management, but all decisions by all government agencies, he suggested.
"I think this case raises some interesting issues in terms of the court deference to the agency and review of agency actions," Donovan said.
Horngren and the intervenors asked the U.S. Supreme Court to consider the case, but the U.S. Forest Service attorneys did not join the case. Had they done so, the Supreme Court might have accepted it, Horngren said.
With Gould's ruling established as law in the Ninth Circuit, the Ecology Center--by then reorganized and renamed as the WildWest Institute---wasted no time in demanding that the Lolo National Forest follow the judges' scientific methods.
Foresters were not allowed to use remote sensing or advanced mathematical techniques, but were required to physically visit every site under consideration for a project and take soil samples.
With the law established, the Lolo had few options. Costs soared and revenue plummeted for the Frenchtown Face stewardship project as the Forest Service spent an additional year working to the judges' new standards, and that year resulted in a million-dollar loss as market conditions changed.
Fortunately, it took only a little over a year for the Ninth to realize its mistake.
Horngren credited the Mineral County case with paving the way for the landmark Lands Council v. McNair decision.
"I think Mineral County should feel vindicated and I truly believe that the Supreme Court cert petition raised the profile of how activist the Ninth Circuit had become," Horngren said. "It wouldn't surprise me if Supreme Court justices or staff had conversations with Ninth Circuit counterparts after the cert petition telling the Ninth to get their house in order."
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