How many projects, like the Spotted Bear Project, which had both a timber harvesting component and a restoration component, have been litigated in Region 1 over the last decade?

“Region-wide, there were 133 cases from 2003 to 2013 involving projects with only a timber harvesting component. The impact is substantial when you consider the fact that 60 percent of the timberland in Montana and 73 percent of the timberland in Idaho are part of the 24 million acre National Forest System that lies within the two states.”

Todd Morgan, Director of Forest Industry Research
Bureau of Business and Economic Research, University of Montana
Missoula, Montana, February 17, 2016

Todd Morgan is the Director of Forest Industry Research at the Bureau of Business and Economic Research [BBER} at the University of Montana in Missoula. Founded in 1948, BBER tracks and analyzes economic activity throughout Montana. Mr. Morgan co-authored a BBER study, released in May, 2015, titled. “Understanding Costs and Other Impacts of Litigation of Forest Service Projects: A Region One Case Study.” He holds undergraduate degrees in Philosophy and Forest Science from The Pennsylvania State University, and a graduate degree in Forestry from the University of Montana. In this interview, he answers questions concerning the report.

The BBER report can be found at: http://www.bber.umt.edu/Search/..%5Cpubs%5Cforest%5CBBERLitigationRpt2015.pdf

Evergreen: Mr. Morgan, let’s get right to it. What led you and John Baldridge to conduct a study of a topic as controversial as national forest timber sale litigation in Montana?

Morgan: Bob Harrington, the State Forester in Montana asked us to look into it. There was a lot of public and congressional interest in the topic, mostly around publicly funded payments to plaintiff’s attorneys in cases involving litigation of Forest Service projects.

Evergreen: These would be cases in which plaintiff’s lawyers are paid under provisions of the federal Equal Access to Justice Act?

Morgan: That’s correct, though as our study reveals, plaintiff’s attorney fees are just the tip of the iceberg when it comes to assessing the total costs of  litigation against Forest Service projects. These EAJA payments are only made in a fraction of cases – typically if the Forest Service loses. Many other costs and impacts add up, whether the agency wins, loses, or the case is settled. These include lost local and regional business activity, especially in logging and saw-milling; lost timber sale revenue, foregone and delayed work, and analytical and administrative costs the Forest Service must pay from public funds.

Evergreen: How can you possibly track so many different costs?

Morgan: Not easily. That’s why we started with a case study of the Spotted Bear River project on the Flathead National Forest with plans to look at a series of other projects.

Evergreen: What can you tell us about the Spotted Bear project?

Morgan: We thought it would be a relatively simple case/project to analyze because it was pretty discreet and not linked to a lot of other cases. The purpose and need for the project were to restore historic forest conditions and vegetation patterns, increase forest resistance to future disturbance – including insects, diseases and wildfire – improve recreation opportunity and safety, improve timber productivity, and provide wood products to the local economy.

Evergreen: We did a little looking ourselves, and learned that about 1,200 acres were slated for timber harvest that would have yielded about 7.3 million board feet of timber worth about $729,000. About 1,300 acres were slated for prescribed burns designed to improve seasonal habitat for deer, elk and bears, and 600 acres of saplings would have been thinned to improve tree growth and species diversity.

Morgan: That’s correct. The Spotted Bear project involved more than 25 percent of the Flathead National Forest’s fiscal year 2013 timber program. And the timber harvest was estimated to account for direct and indirect community impacts of about 136 jobs, $7.4 million in worker income and about $2.7 million in state and federal tax revenue.

Evergreen: And this was just one project. How big is the litigation problem in Region 1?

Morgan: In recent years, litigation has encumbered 40 to 50 percent of the Region’s planned timber harvest volume and treatment acres. Between 2008 and 2013, Region 1 had more than 70 projects litigated, more than any other region in the nation. And only 10 of those cases involved a payment of plaintiff’s attorney fees.

Evergreen: Were you able to total up Region 1’s litigation costs for those years?

Morgan: Not completely. The financial impact of litigation-encumbered timber volume to the Region’s Congressionally appropriated timber program budget was about $9.8 million for fiscal year 2013 and about $6.8 million for fiscal 2014, but that doesn’t count lost community activity, which in the case of the Spotted Bear project, could have totaled approximately $10 million had none of the timber been harvested.

Evergreen: How many projects, like the Spotted Bear Project, which had both a timber harvesting component and a restoration component, have been litigated in Region 1 over the last decade?

Morgan: Region-wide, there were 133 cases from 2003 to 2013 involving projects with only a timber harvesting component. The impact is substantial when you consider the fact that 60 percent of the timberland in Montana and 73 percent of the timberland in Idaho are part of the 24 million acre National Forest System that lies within the two states.

Evergreen: Who are the big litigators?

Morgan: Over the 11 year period we examined, 75 of the 133 cases in Region One were filed by repeat litigators; the top two being the Alliance for the Wild Rockies (with 30 cases) and the Native Ecosystems Council (with 19). Between the two of them, about $276,000 in legal fees were paid, spread over 10 cases.

Evergreen: And did we understand you to say these publicly paid costs are just the tip of the iceberg?

Morgan: That’s right. These data show the plaintiff attorney fees were only paid on about a quarter of the cases. The Forest Service still had to bear the costs of defending itself on all these cases. It is much more difficult to quantify costs associated with impacted timber communities, the general economy and the Forest Service itself.

Evergreen: Why is this?

Morgan: Many of these cases drag on for years, with parts of projects being delayed or cancelled. Cases can span several budget periods and Forest Service planning cycles. Most difficult to measure are costs associated with altered resource management plans and impacts on the private sector.

Evergreen: By the private sector we assume you mean logging companies and lumber manufacturers.

Morgan: That’s correct. In our study, we point out that those Main Street and Forest Service impacts are hard to quantify because some planned activities – like timber harvest or road maintenance – may be delayed, partially reduced, or completely eliminated; but those outcomes may not be known for years – until the cases have gone through the courts and subsequent appeals. Also there is all the work that the Forest Service does to prepare a project – before it can be litigated

Evergreen: For example?

Morgan: In our research, Forest Service personnel at various levels repeatedly indicated that far more time and effort are spent on NEPA analysis – which precedes and is often the subject of litigation – than is spent on litigation and legal defense per se.

Evergreen: Our sense is that the Forest Service is obsessed with bulletproofing its NEPA documents, which is, in our view, impossible.

Morgan: The constant threat of litigation certainly seems to contribute to what many refer to as “analysis paralysis.” Moreover, the case law and administrative precedents that result from a single project’s court case can have far-reaching implications and impacts on other projects; and the ever-growing body of cases and case law can lead to even more NEPA analysis, plus Endangered Species consultation with the U.S. Fish & Wildlife Service. These are among the associated costs that we know are accumulating but are extremely difficult to quantify. One thing we know for certain is that the total costs of litigation of Forest Service projects are greater than the EAJA payments alone.