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When Kumbaya Fails: Collaborators Sue Forest Service

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Ever since collaboration became the mantra for many of Montana’s conservation groups, a strange dynamic has existed that paints other conservation groups that litigate over forest projects in a very unflattering light. Called “serial litigators,” “environmental extremists” and worse, the lawsuits are often filed to protect habitat for wolverine, lynx, grizzly bears, fishers and other “non-game” species. But when it finally came down to logging and road-building projects threatening elk habitat, well, the collaborator groups finally had to realize their only option was doing what was very hard for them to contemplate – suing the U.S. Forest Service.

The project that finally drove the Montana Backcountry Hunters and Anglers, the Montana Wildlife Federation, Anaconda Sportsman’s Club, Helena Hunters and Anglers Association and the Clancy-Unionville Citizens Task Force to file a lawsuit is located on the Helena-Lewis and Clark National Forest. It’s part of what is now being called a “landscape-scale” logging project in which the Forest Service amended its travel plan to redefine the longstanding requirement for leaving enough trees to hide an elk at 200 yards. The requirement is intended to provide security for elk, especially during hunting season and, given that most of Montana’s elk herds are at or above the goals Fish, Wildlife and Parks has set, it would appear the hiding cover requirement makes good sense and is working as planned.

But under the amendment the Forest Service stuck into its travel plan, the hiding cover requirement is gone. As the chair of Backcountry Hunters and Anglers told reporters, “Simply put, litigation is our last tool in the toolbox. But if we accept that elk need security from hunters and predators, then that means dense trees or they’ll move onto private ground.”

Indeed, “treeless” areas, formerly known as clearcuts, don’t provide much in the way of hiding cover for anything, let alone animals as big as elk. As anyone who has ever hunted them can attest, an elk standing in a clearing at 200 yards would be hard to miss with a rifle. And with the proliferation of all-terrain vehicles and the illegal “user created” roads now bisecting our national forests into ever-smaller roadless areas, the hiding cover requirement is more important now than in the pre-ATV, road-hunter past.

Ironically, the groups that are suing the Forest Service are alleging the agency violated the same law over which the non-collaborator groups often file suit. Namely, the National Environmental Policy Act, which requires federal agencies to consider the effects of proposed actions and offer alternatives. The groups say the Forest Service did neither when it adopted the new amendment that did away with the hiding cover requirement.

Although some of the groups in the lawsuit were not involved in collaborating on the Helena-area landscape-scale logging projects, they rightly fear that if the new amendment is allowed to stand on the Helena-Lewis and Clark National Forest, it may well set a precedent to similar amendments on other national forests.

Make no mistake, the effort to paint conservation or environmental groups that take federal agencies to court to force them to follow the law as somehow being “extremists” is a deliberate ploy by resource extraction interests and their friends in political office. Simply put, it is a “divide and conquer” strategy which has served them well for years while splintering the once-solid conservation community into “collaborators” and “litigators.”

But here’s the deal – our form of government is, by design, split into three separate but equal branches. The legislative makes the laws; the executive implements projects within the requirements of those laws; and the judicial, which provides citizens the path by which they may challenge the government when they believe it is not acting within the confines of the law. Every American citizen has the constitutional right to force government agencies to follow the law and, despite the significant effort to imply that those who use the judicial path are doing something wrong, that’s exactly why the judicial branch exists – to force government agencies to follow the law.

As retired state elk biologist Gayle Joslin said: “How we got to this decision to litigate is we have no other opportunity.” She’s right. And when it comes to protecting Montana’s highly treasured elk herds – or a host of other species – going to court to force the Forest Service to follow the law is hardly extremist. In fact, it’s the sane recourse when collaborator kumbaya fails to protect our most cherished public resources.

This column originally appeared in the Missoulian.

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George Ochenski is a columnist for the Missoulian, where this essay originally appeared.

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