Controversy surrounding the Bitterroot Burned Area Recovery Project was rekindled last week with a report from conservation groups claiming that implementation of the plan has been long on logging and short on restoration. And ironically, perceptions over how the Forest Service is handling the project may be undermining its oft-stated goal of eliminating the agency’s bane: management decision-by-litigation.
Last year, a lawsuit challenging the plan was settled through a court-ordered mediation process between the Forest Service and several local and national conservation organizations. Forest Service Chief Dale Bosworth, who took part in the process, said the most important issue was the project’s restoration component. But a report issued by Friends of the Bitterroot, Sierra Club and Pacific Rivers Council claims that while more than 70 percent of the logging allowed under the settlement has gone forward, less than 3 percent of the watershed and road restoration work has been completed.
In an interview with the Independent, Spike Thompson, Deputy Supervisor of the Bitterroot National Forest disagreed, saying “I’m not quite sure what numbers they are using. We have actually advertised about 37.5 million board feet of the 60 million in the settlement. Of that, about 16 to 18 million have actually been hauled. In addition, 13 miles of road restoration has been done, and 4,000 acres have been re-planted. We always said it would be a multi-year project. The road work will take three to five years and the 33,000 acres that need re-planting will take ten to 15 years. We have said all along that the fuels treatment”—which is to say tree removal—“is part of the restoration project.”
Thompson did admit that restoration work has been slowed because of $25.5 million reallocated to the national fire fighting budget in 2002. “Congress has yet to pass a funding bill for this year. We’re hopeful they’ll restore a large percentage of that. We have contracts [for restoration work] ready to go. As the funds are restored, we’re prepared to move forward.”
Conservation groups, however, say that reasoning is just further evidence of what they claim is a strong timber bias within the agency. Jeff Juel, Ecosystem Defense director with Missoula’s Ecology Center, finds it “funny how they didn’t take money from the timber sale administration budget. They can send folks out to do logging, but can’t send them out to do restoration. What does that say about the agency’s priorities?”
Sierra Club president Jennifer Ferenstein says that “Even if they had the best intentions regarding restoration at the local level, the overall goals of the Bush Administration make it clear the emphasis is on logging and not on restoration or community protection within the wildland-urban interface.”
The mediated discussions are still governed by a gag order imposed by Judge Michael Hogan of the Federal District Court of Oregon. However, one participant says that “the settlement proceeded on the belief that what was proposed in the EIS and the Record of Decision was part of the deal.” Asked if the Forest Service is committed to carrying out the restoration work described in the Record of Decision, Deputy Supervisor Thompson says, “Yes, we are fully committed to carrying it all out.”
The settlement agreement, a relatively simple five-page document, is significant in what it does not say: there is no specific timeline or mandate requiring the restoration component of the plan. Moreover, the final provision in the settlement states that “The parties agree they will not seek to interpret or enforce this Agreement through a motion for contempt.”
Nor is any federal official committed to expending funds not specifically allocated by Congress.
No timeline, no mandate, and thus no material breach. In other words, while conservationists may feel victimized by a bait-and-switch maneuver, they have little recourse beyond a moral claim of Forest Service iniquity.
Chief Bosworth, formerly the Regional Forester in Missoula, has repeatedly said he believes that litigation is a lose-lose means of settling disputes over forest management. However, based on the outcome of the Bitterroot process, more litigation, not less, is likely to attend similar post-fire salvage logging. Juel’s Ecology Center recently announced plans to formally challenge the Lolo National Forest Post-Burn Project. As for lessons learned in the Bitterroot experience, Juel says “We would approach it with getting a much more enforceable agreement. We learned a lot––we learned to be wary of what the Forest Service promises.”
Larry Campbell, a Darby resident with Friends of the Bitterroot, agrees. “Trust has been burned. This will haunt any future attempts to negotiate with the Forest Service.” Campbell claims the Forest Service began violating the spirit of the agreement as soon as it was signed. “They used a wave of propaganda about restoration and reducing fire hazard to buy public support. On both points they have misled the public. They took a shortcut around the appeals process based on the need to hurry up with restoration.”
He points to snag retention––vital to cavity-nesting birds and other wildlife—noting that the Record of Decision called for leaving the biggest trees, but the actual sale contracts allow cutting of snags 30 inches and larger in diameter. “These big trees were the last to burn, but the first to go.”
Which begs the question: Will forest protection advocates continue seeking mediated settlements, or will courts of law become, by necessity, the most favored avenue of resolution? The lack of recourse and enforceable timelines in the Bitterroot settlement leaves conservationists seeking more certainty in dispute resolution, and such legally-binding certainty is seldom found short of a court ruling, where a perceived lack of compliance can be brought before the court for a determination.
Assessments of the Bush administration record on environmental issues have shown a bias towards industry-friendly agendas. Conservationists point to the Healthy Forests Initiative, which would reduce citizen involvement and the application of national environmental protection laws. If a perceived pro-logging bias means that trust in the National Forest Service under the Bush Administration is waning, Chief Bosworth may never realize his wish for a lawsuit-free hand to manage the forests.