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Summary Judgment

With Humans Facing Fire Danger, Judges Worry About Elk

Mar 01, 2010 | by William Perry Pendley

In May 2005, the U.S. Forest Service completed its evaluation of the risk of wildfire and insect loss to approximately 44,000 acres in the Smith Creek/Shields River area of the Gallatin National Forest, north of Livingston, Montana. The Forest Service concluded that there was a high risk of wildfire in the area, which, coupled with limited access, formed unsafe conditions for the public, including residents who live on private property within the national forest, and firefighters. In addition, Park County's Wildfire Protection Plan, completed in the spring of 2006, identified the Smith Creek area as a priority wildland-urban interface area at high risk from wildfire and thus a priority for fuels reduction projects. In response, the Forest Service developed with comments from adjacent private homeowners and state, county, and local officials and groups the Smith Creek Vegetation Treatment Project in order to address the dangerous fuel buildups and mitigate the risk of catastrophic wildfire and its potentially devastating impacts on human beings.

The Forest Service project would reduce fuel loads on a maximum of 1,110 acres, in 10 separate units, by thinning medium- and large-diameter green conifers, selectively harvesting insect- or disease-damaged conifers, cutting small-diameter conifers, slashing trees that encroach into meadows or aspen stands, prescribed burning in meadows and the understory of treated stands, and piling and removing or burning downed woody debris. In addition, a local, quasi-governmental association was formed to provide grant monies to local landowners to conduct fuels reduction projects on their private lands.

In July 2008, after unsuccessful administrative appeals of the Forest Service plan, two environmental groups and a summer resident of the area sued the Forest Service alleging that the plan violated the National Environmental Policy Act (NEPA) as well as the National Forest Management Act (NFMA); given the importance of the project, a Montana federal district court set an expedited briefing schedule. Then, in mid-August 2008, full-time residents and local property owners, Janet and Ronald Hartman of Wilsall, Montana, intervened in the case.

In late October 2008, the district court ruled for the Forest Service and the Hartmans on all claims except one, regarding the mapping of key elk habitat; that matter was remanded to the Forest Service. Meanwhile, the Forest Service was enjoined from beginning the project. By the following fall, the Forest Service had completed its mapping; therefore, on October 8, 2009, the district court ruled that the Forest Service could proceed with the Smith Creek Vegetation Project, portions of which would occur during the winter season, that is, between November 1 and April 30. Before the project could begin, however, the environmental groups appealed and the U.S. Court of Appeals for the Ninth Circuit barred its implementation.

Last month, after legal briefing, the appeal was argued before a three-judge panel of the Ninth Circuit. The environmental groups argued that the Forest Service plan did not provide sufficient elk hiding cover and must be enjoined. The Hartmans responded that the plan was needed to slow down the rate of spread of a catastrophic fire to buy them the time to escape with their lives when such a fire begins. At that point, one judge, asserting that the court must balance equities, asked how severe is the danger to life, what's the actual danger of death, and what's the number of people who have been killed by these fires? When the Hartmans argued that the equities favored the people, not the elk, the judge did admit that the elk are doing very well, but, countered another judge, with more cover there may be even more elk.

Not surprising, given the nature of the Ninth Circuit (the most frequently reversed federal appeals court in the country) and the questions from the judges, the panel barred implementation of the Forest Service plan. Still deep in winter in southern Montana, the Hartmans and their neighbors now dread the approach of yet another fire season.

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