Don’t Blame Judges or Conservationists When the Forest Service Breaks the Law

A recent column by an Oregon timber industry mouthpiece assailed two of Montana’s federal court judges claiming: “Bad juju is drifting through the halls of the U.S. Federal Courthouse in Missoula.” Apparently he thinks it’s “bad juju” because they found the Forest Service’s planned logging projects in Northwest Montana violated federal law. Not only is he wrong on the law, apparently he doesn’t even know what “juju” means.

The definition of juju surely has nothing to do with a court of law — or the rulings by two highly competent federal judges, both of whom have seen numerous cases involving the Forest Service’s endless attempts to get around the requirements of laws specifically enacted to regulate resource extraction and prevent threatened and endangered species from extinction.

But let’s start with “juju.” According to most definitions, juju means: “Anything supernatural or mysterious, and an object of religious fear or veneration; a charm; a fetish; also, an observance of mysterious significance like the taboo: used in relation to the religious ideas of West Africans.”

I’m not sure how someone who lives in Oregon can credibly claim there’s “bad juju in the Federal District Courthouse in Missoula.” Oregon — colloquially known as the “Stump State” because that’s all that remains of its once-majestic forests — is a very long way from Missoula. It’s also doubtful he’s been to a federal courthouse recently, where “supernatural objects” really can’t slip past the security guards and metal detectors into a courtroom.

But according to this guy, who thinks Montana should follow Oregon’s path to unsustainable logging, the real problem is that the Equal Access to Justice Act gives citizens the right to challenge government actions in a court of law.

There are a lot of things that are easy to do in this world —but challenging the federal government in court is not one of them. Given that the resources of the entire federal bureaucracy are at the disposal of the Forest Service to fight lawsuits, for plaintiffs to win is very difficult indeed.

Moreover in logging projects judges must give deference to an agency’s experts in technical matters. The only way to alter that deference is with solid evidence of violation of the law. And when indisputable evidence is produced, as it was in the decisions disparaged in the column, judges absolutely have the right to enjoin agency actions and remand the project to correct its illegalities.

They also have the right to award attorney and expert witness fees to the plaintiffs. That really seems to rankle Mr. Stumps, since he dubbed the plaintiffs “eco-terrorists” simply because they sought to preserve national forests — which are the planet’s best tools to remove carbon dioxide from the atmosphere.

As the old saying goes: “If you have the facts on your side, pound the facts; if you have the law on your side, pound the law; if you have neither the facts nor the law, pound the table.” In recent years — and particularly in the prosecutions of the former president —  there’s one more line to add: “When you lose because you don’t have facts or law on your side, pound the judge.” And this failed attempt to pound Montana’s Federal Judges Donald Molloy and Dana Christensen for their rulings embarrassingly mimics those raging simpletons who blame the judicial system when they lose.

But if the out-of-state whiner really wanted to quit losing, he’d find far more success in pounding the Forest Service for its on-going attempts to evade the law —  not the conservationists or the judges who ruled against the law-breaking agency.

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