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Montana Supreme Court Justice James C. Nelson drew an interesting comparison to the Montana Department of Natural Resources and Conservation (DNRC) method of accounting for timber sales on School Trust Lands late last month.

"I am reminded of a pizza shop commercial a few years ago that had the proprietor saying that he loses money on each individual sale, but makes up for that in volume," Nelson wrote in his dissenting opinion in Friends of the Wild Swan v. Department of Natural Resources and Conservation and Montana Board of Land Commissioners.

Currently, the DNRC accounts for its timber program only as a whole. So while the program shows a profit, it's possible that some timber is sold to logging companies at a loss. In a 1999 state Supreme Court Case, Friends of the Wild Swan (FOWS) proved that at least one proposed sale would have lost over $150,000.

According to FOWS, the DNRC's accounting method fails to fulfill the state statute requiring the "largest measure of reasonable and legitimate advantage to the state" when employing trust lands.

The Supreme Court's majority opinion says FOWS' argument creates a slippery slope; "Certainly, a limb by limb, tree by tree, or acre by acre accounting is theoretically possible in the context of a timber sale..."

Nelson responds that the bar for accounting indeed could be set at any level, but is currently at "ground level." He points out that land commissioners make decisions on a per-sale basis, and that accounting for individual sales is therefore appropriate.

But in the end, according to the majority, "[T]he question is whether harvest-level accounting of proposed timber sales is required by law."

By a margin of 4 to 3, the court determined it is not. But laws are subject to change.

According to Arlene Montgomery, program director for FOWS, this case wasn't just about stopping the Goat-Squeezer timber sale in the Swan Valley, on which the Supreme Court case focused. She says FOWS will continue fighting for stricter accounting, either through the Legislature or the Board of Land Commissioners.

"If this was a business," Montgomery says, "you'd be tracking sales to see if you're making money or not."

Even pizza companies know that.


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