Lynx, logging and lawsuits

Proposed Endangered Species Act rule changes could impact local fights over development
Joseph Bullington --
Tuesday, August 21, 2018

Photo by Nate Berg/U.S. Fish and Wildlife Service

Pictured is a Canada lynx.

Courtesy of the U.S. Forest Service

The map shows the North Hebgen Multiple Resource Project area.

EDITOR’S NOTE: This is the second installment in an ongoing series about endangered species living in the Greater Yellowstone Area.

On the morning of Aug. 13, Montana lumber company RY Timber started work on a new timber project near Tepee Creek on the Custer Gallatin National Forest north of West Yellowstone.

Later that day, the order came down: A federal district court had issued an injunction to temporarily stop the logging.

Known as the North Hebgen Multiple Resource Project, the U.S. Forest Service proposal calls for logging on about 9 square miles of forest, in a 700,000-acre area that borders Hebgen Lake to the west, Yellowstone National Park to the east, and the Lee Metcalf Wilderness to the north.

The project, first proposed in 2016, consists of both thinning and clear cutting, and the agency argues it is necessary to prevent intense wildfire, spur aspen and whitebark pine regeneration, and promote forest health.

But the Alliance for the Wild Rockies and the Native Ecosystems Council filed suit to stop the project, arguing in part that the Forest Service did not adequately consider the impact of the project on Canada lynx, a species threatened by extinction due to habitat loss — including the kind of dense, snowy, old-growth forest found to the east of Hebgen Lake.

Judge Dana Christensen sided with the environmentalists, and the court ordered a stop to the North Hebgen project until a decision is reached about the effects on lynx.

However, changes to the rules that enforce the Endangered Species Act, proposed in July by the Trump administration, would make it more difficult for environmental groups to stop future projects that might pose a risk to threatened species.

Efforts to weaken the law

Depending on who you ask, the injunction that stopped North Hebgen is either an example of what’s right with the Endangered Species Act or an example of why the act needs to be changed.

Though the Endangered Species Act enjoys broad public support — one 2015 study found that 90 percent of voters said they support it — industry groups such as loggers, oil and gas companies, ranchers, and real estate developers have long decried the act for burdening industry and restricting development, and they have lobbied hard to change it.

Of late, the latter perspective has gained much traction in Washington, D.C. In July, the New York Times counted more than two dozen pieces of legislation, policy initiatives and amendments designed to weaken the law.

That’s in addition to the regulatory changes, which were proposed by the Departments of Interior and Commerce on July 25. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service, the agencies charged with enforcing the act, are currently taking public comment on the changes, which are set to go into effect on Sept. 24.

According to Brett Hartl, government affairs director for the Center For Biological Diversity, the proposed changes will “weaken the regulations fairly comprehensively across the board.”

Hartl described the current moves to weaken the Act as “unprecedented.”

“I don’t think at any point in the last 45 years has there been so many attacks simultaneously,” he said.

In the greater Yellowstone ecosystem “no one species is going to be killed off … but it will make it harder to protect that ecosystem,” he said. “There will be less wildlife in Montana — especially the imperilled kind.”

Proposed changes

Maybe the most significant proposed change would see the agencies strip automatic protections from “threatened” species.

Under the act, a species must be listed as “endangered” — the most serious level of listing — if it is “in danger of extinction throughout all or a significant portion of its range.” The act mandates that a species be listed as “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”

Under current rules, full protections are automatically given to a threatened species, and then relaxed as the situation allows. Under the proposed rules, a threatened species would start without the protections and, maybe, see them applied, Hartl explained. These protections include a prohibition on “take” — any activity that kills or harms the species. The change would not be retroactive, so species that were listed as threatened before the change would still receive the protections, but species listed as threatened in the future would not. What that means in practice is that conservationists suing to preserve lynx habitat, as in the case of the North Hebgen timber project, could still get traction.

But species currently being considered for listing as threatened species, such as the wolverine — the subject of a previous installment of this series

— would not see those protections, and development projects that harm wolverines or their habitat could proceed without major obstacle.

Sara Johnson of the Native Ecosystems Council, one of the groups that sued to stop the North Hebgen project, said the change would make it harder to win in court against projects like North Hebgen if they involve species listed as threatened in the future.

“Everything we deal with is threatened,” Johnson said. “Mostly what we win on is threatened species.”

Jonathan Wood, an attorney and an adjunct fellow at the Property Environmental Research Center — a Bozeman-based think tank dedicated to “free market environmentalism” — thinks a two-tier listing system is a good thing.

“Regulating endangered and threatened species the same, as we currently do, denies property owners who contribute to the recovery of endangered species any reward for their efforts,” Wood writes in a recent article for the PERC magazine. “When an endangered species’ status is upgraded to threatened, the same burdensome restriction on land use, for instance, continue to apply.”

Hartl, of the Center for Biological Diversity, disagrees. In fact, said Hartl, protections for threatened species have always been decided on a case-by-case basis — only the starting level of protection would be different.

“The question is: Do you give the species the benefit of the doubt?” he said. “The answer has been yes, now it will be no, and in this administration the answer will always be no.”

Because threatened listing will not come with an automatic “take” prohibition, he said, “you’re going to see lots more threatened listings and very few endangered listings,” he said. “It’s very deliberate.”

Hartl said that the changes could lead to a decline in threatened species.

“They’re going to continue to lose habitat, they’re going to continue to decline, and eventually they’re going to become endangered,” he said. “Just to appease business, all these species are going to suffer.”

Considering the costs

In Montana, timber harvests on federal public lands draw controversy — almost always they see lawsuits, and sometimes more direct actions.

The night after the court injunction stopped RY Timber’s work on Tepee Creek, according to company Resource Manager Ed Regan, someone sabotaged the machine they had in there to do the harvest.

“Whoever did this knew what they were doing,” Regan said. “They knew how to cripple the machine.”

Regan also considers the inevitable lawsuits a kind of legal sabotage. Projects like North Hebgen can expect months or years of litigation, much of it based on the Endangered Species Act. Regan thinks the act needs to be updated to make such lawsuits more difficult.

Recently, that perspective has found proponents in high places: Last week, Interior Secretary Ryan Zinke, who signed the proposed rule changes, blamed the California wildfires on “environmental terrorist groups” for holding up timber projects.

“You streamline it and you don’t make it so oppressive,” Regan said of how he’d like to see the act revised.

He sees the act as giving fringe environmental groups the power to unnecessarily hold up even small projects like the North Hebgen timber harvest, which he said will have a minimal effect on lynx.

“I don’t believe it has an effect (on lynx),” he said, “because you got the other 80 percent of land that’s protected. If they’re not smart enough to run onto that 80 percent … they’re not smart enough to be in the gene pool.”

Asked how many trees RY would harvest from the North Hebgen project if it moves forward, Regan said the company doesn’t measure it in trees but in board feet of lumber that can be sawed from them. And he had a number for that: about 4 million board-feet of logs — “enough to run the Livingston mill for two months.”

“You’re going to cut maybe a thousand acres. You’re surrounded by maybe 6 million acres of wilderness and national park and roadless areas — what the hell is the big deal?”

Loss of wildlands

Conservationists like Johnson, of Native Ecosystems Council, and Mike Garrity, of Alliance for the Wild Rockies, see a different imbalance — not the logging project dwarfed by surrounding wildlands but the remaining wildlands dwarfed by how much has already been lost.

“Two hundred years ago, one single large block of pristine wilderness over 3 billion acres in size comprised most of the North American continent,” reads a 2001 study of wildlands in the United States by the Pacific Biodiversity Institute. “Today, most of this wild, pristine habitat has been completely eliminated by the steady progression of human development. What remains is now highly fragmented.”

According to the Fish and Wildlife Service, at least 500 species have been driven out of existence on the North American continent since 1620 — including the Eastern elk, the passenger pigeon and the blue pike.

Since its passage in 1973, the Endangered Species Act has been one of conservationists most successful tools for stopping the development and destruction of wildlands and saving species from extinction, such as the grizzly bear, the American alligator, the peregrine falcon and the whooping crane.

The act itself is uncompromising in its diagnosis: “(V)arious species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation.”

Johnson said that lawsuits are often the only way to get the Forest Service to comply with the act.

“I understand the Forest Service pretty damn well,” she said. Before founding Native Ecosystems Council, Johnson worked for the agency as a biologist for 14 years — first on the Targhee, then on the Gallatin — before realizing that “a treehugger in the Forest Service doesn’t work very good.”

“Public involvement is suing ‘em,” she said. “That’s the only way you ever have of a making a difference. Otherwise you’re wasting your time.”

“This is a terrible line of work,” said Johnson. “It’s just depressing. You have a few victories here and there, but it’s just a slow, progressive loss of the ecosystem.”