Missoula, Mont. — Looking at those walking into the federal courtroom in this university town in western Montana last summer, it was easy to see who was on which side.
Jeans, moustaches, baseball caps and cowboy hats, pistols in side holsters: Here were the ranchers and the hunters. They obligingly checked their firearms with the marshal at the entrance. The others: a collection of capris-wearing, vacant-looking, long-haired individuals, the environmentalists and greens for whom this mountain town is famous. (Ralph Nader won 15 percent of the county in 2000, and Forbes credits Missoula with the highest per capita consumption of illegal drugs in the United States.)
The issue might have been aerial pesticide spraying, or permits to move tar-sands drilling equipment, or the ill effects of cattle grazing on the greater sage-grouse. The economy of the West, still rich with unexploited natural resources, no longer brooks a frontier mentality. Drilling a well, cutting a tree, mining the earth, shooting predatory wildlife, running livestock on the range — nearly any activity that has anything to do with land use is subject nowadays to litigation, as landowners and those who would make use of the land jockey against environmentalists whose goal, in any given case, is to grind the process to a halt.
Landing before the federal bar this day was the saga of the endangered gray wolf. One after another, attorneys for the litigants rose, introducing themselves as counsel for groups with names like Defenders of Wildlife. One law firm working for the litigants was Earthjustice, whose institutional slogan (seriously) is: “Because the earth needs a good lawyer.” Evidently the Lorax had a prior engagement.
Meanwhile, the Justice Department — defending the U.S. Fish and Wildlife Service — had assigned a newbie, who suffered through the stuttering and palsy of nervousness in open court. He seemed way out of his league. By comparison, the states of Montana and Idaho had sent assistant attorneys general.
Wolves are a trifling issue elsewhere, but out West they have become as integral to the political discussion as Obamacare and spending. And what a strange issue it is. Never mind that Canada and Alaska have enormous populations of gray wolves, that Minnesota still has its timberwolves. In the 1990s, wolves were reintroduced to Montana, Idaho, and Wyoming by order of the Clinton administration. At the same time, the federal bureaucracy invented the name “northern Rocky Mountain gray wolf” so the reintroduced species, upon crossing the Canadian border, could be declared “endangered.” This was quite the contrivance, but just the thing necessary to make the ludicrous arrangement stick under the Endangered Species Act of 1973 (ESA).
Unsurprisingly, the wolf reclaimed its niche. By 2008, wolves numbered more than 1,500 in the tri-state area — five times the “recovery target” stipulated at the outset of reintroduction — and the Bush administration okayed the removal of the wolf from the endangered-species list. It was a decision even the Obama administration stood by, and wolf management reverted to the states in 2009 — except in Wyoming, where state wildlife officials had pluckily signaled their intention to classify the wolf as a pest, subject to an open season, and the feds worried that the wolf’s foothold would be quickly eroded. Montana and Idaho, on the other hand, developed policies designed to maintain population levels.
Unwittingly, the trigger-happy Wyomingites had handed environmentalist groups just the bone wrench they’d been looking for to jam up the wolf’s delisting. Wyoming’s exclusion allowed the invocation of an arcane provision within the ESA dictating that a vertebrate mammal must be listed as “endangered” across its entire designated range, or not at all.
So when at last federal district judge Don Molloy — who sits over many environmental-law cases in Missoula and is considered one of the greener judges in the western judiciary — heard the wolf case, it was all too obvious what the ESA would require of its black-robed high priest. If the legal fiction that is the “northern Rocky Mountain gray wolf” was “endangered” in Wyoming, the animal would have to be called “endangered” in Idaho and Montana too.
Wolves are today so numerous in some areas of the West that whole herds of elk have disappeared from their historic rangeland, but that hardly matters in the legal scheme. The ESA is less an exercise in proper wildlife management than a piece of Old Testament proscription designed to ensure a cuddly animal’s mindless propagation. Indeed, vertebrate mammals (i.e., the cuddly animals) receive special protections under the law. Of course Mother Nature does not differentiate between the stately wolf and the lowly worm, and, in that sense, the law is an abdication of sound wildlife science, not an advancement of it. Many conservationists are rightly disgusted by its implementation, if not its intent.
How did the fate of wolves become a judicial issue? Thank federal environmental law, an enormous compendium of which has been passed since the 1960s. With wolves, it is the ESA that comes into play, but environmentalists have many other weapons at their disposal.
The National Environmental Policy Act of 1969 (NEPA) requires virtually any project undertaken on federal land to be vetted in a costly environmental-impact statement — a document that frequently runs in the thousands of pages and is usually prepared by well-remunerated consultancies. The NEPA process compares what you would like to do on federal land with whatever else might possibly be done on the same land, exploring the impacts of all options. A useful analytical tool, but absolutely stifling in judicial practice, NEPA empowers environmental litigants to sue over small details of impact statements almost as a matter of course. As in the wolf affair, the outcome of a case more often hinges on procedural discrepancies than on real environmental science. Often, the NEPA process does not even result in a final ruling; the delay associated with the law is enough to suffocate a project by itself.
Add to NEPA and the ESA the multiple, overlapping regulatory jurisdictions of the federal government. The EPA’s finding under the Clean Air Act that carbon dioxide is an air pollutant gives it vast new powers over oil- and natural-gas-drilling operations and pipelines. The Army Corps of Engineers has a say over navigable rivers. The Antiquities Act allows the president to unilaterally designate large areas of land as “national monuments” — something that was meant to apply to things like Indian sites and Plymouth Rock, but that, starting in the Clinton administration, has been used to set aside swathes of hundreds of thousands of acres. Taken together, the federal environmental laws and bureaucracy destine any development on public land to years-long litigation at the hands of obstructionists.
While environmentalists like to claim the mantle of science, federal environmental law hands decision-making to judges, who work to produce outcomes in conformance with the maze of the law. The bottom line is that decisions about forests are not being made by foresters, and wildlife is not being managed by biologists. Increasingly, management decisions of a highly technical nature are made in faraway places by political agents or judges with no subject-specific training.
Since environmental lawsuits typically name a branch of the federal government as the defendant, the whole process is open to collusion between environmentalists outside of government and political appointees within it — particularly those who direct the Interior and Agriculture Departments, which together control the majority of federal land. Not even a judge’s ruling was required before the Bureau of Land Management (BLM), guardian of the more bleak landscapes in the federal portfolio, suspended 61 natural-gas-drilling leases on the grounds that drilling might allow modest amounts of methane, a greenhouse gas, to leak into the atmosphere. (Some of the suspensions have now been lifted.) The reason for BLM’s capitulation: The NEPA-required impact statement had been silent on the drilling’s possible contribution to global warming — a minor error by any serious measure, especially since huge amounts of carbon dioxide, another greenhouse gas, will be released when the gas is burned. But this lacuna in the environmental-impact statement was a fatal error in the Alice in Wonderland world of environmental law.
Wolves anger westerners because of their depredations on domestic livestock and on game animals like elk. But wolves are just one of many environmental-law issues that have turned federal judges in the West and elsewhere into arbiters of disputes between locals, who have the proximity and knowledge to manage land reasonably, and the absentee landlord that is the federal government, a behemoth that owns 30 percent of Montana’s land and even larger fractions of other Western states. The litigiousness engendered by federal law has crippled natural-resource industries that were once central to the region’s economy and identity.
Perhaps the most tragic example is forestry. National forests were conceived of by Teddy Roosevelt and his chief forester, Gifford Pinchot, as a way to turn a profit and provide lumber for the nation. Not anymore. Lawsuits and a U.S. Forest Service whose revenues are disconnected from sales of wood products have caused forestry on the federal estate to plunge. In 1987, America’s national forests produced 13 billion board feet of timber. In 2008, that number fell to 2 billion board feet.
The Lolo National Forest in Montana, heretofore one of the most productive reserves, was the subject of 19 lawsuits over the seven-year period from 1998 to 2005, according to researcher Alison Berry of the Sonoran Institute. Although the forest had been deemed overgrown and logging permits had been approved by the experts, thinning and logging projects are at a standstill today.
What’s in it for environmentalists? What are they trying to accomplish? To understand that, one has to understand the liberal environmentalist approach to national forests. As happened with the wolf, the litigation process creates endless delay, and in doing so defaults the management decision to doing nothing — which environmentalists equate with letting nature takes its course.
That view of nature is not simply warped, but premised on a fallacious view of what is “natural” in the first place. And to get a better understanding of this, you need to know about the beetle.
Yes, the mountain pine-bark beetle — the montane forest’s equivalent of the locust or the red tide. For the last several years it has plagued the Mountain West. From British Columbia to Colorado, the beetle has burrowed into trees covering several million acres, leaving whole hillsides and landscapes riddled with the reddened corpses of lodgepole and ponderosa.
Closer up, on hikes, trees can be seen in their death throes, trying to push out the beetles with violent pustules of sap. But their limbs droop, their living tissues, the xylem and phloem, destroyed. These magnificent trees are being eaten alive in the tens of millions and finished off by a fungus that attends the beetle’s progress through the pine stands. As with wolves, news of the beetle outbreak rarely makes headlines elsewhere, and certainly not in Washington, D.C., or the coastal states whose congressmen and senators are the big players on the natural-resources committees. Meanwhile, Rocky Mountain communities are witnessing firsthand a plague of a scale not seen in a century.
“It’s going to end up in a catastrophic fire,” says Holly Fretwell matter-of-factly, when asked about the dead trees. Fretwell is a researcher at the Property and Environment Research Center, in Bozeman, Mont., who has written about the federal government’s self-defeating approach to land management.
Last year, three huge pine trees in Fretwell’s backyard were infested by the beetle. “Most of us would get out there right away and cut down those trees,” Fretwell says. And that is just what she did, taking the swift and nimble corrective action typical of private landowners. The stakes are, for her, so very high. Her house could be burned by a fire, or the infestation could grow worse. Fretwell and other landowners have strong incentives to preserve their houses and their trees through management actions that flow from what is actually happening on the ground. Not so with the federal government.
Locals speak of the coming inferno in a fatalistic way. The dead, reddened husks will have to be cleared away somehow, and federal paralysis leaves a massive fire as the only option. Once upon a time, there was a thriving salvage industry for just this type of thing: Dead wood, in other ways unusable, can serve as fuel — even for electricity, as recent biomass innovations have demonstrated. But with each passing day, the remaining timber becomes less usable and more prone to fire.
The reaction to the plague of beetles is telling of how people conceive, and misconceive, of nature. Depending on your point of view, the beetle was either nature taking its course, albeit in a sweeping and discomfiting way, or the first horseman of the climate-change apocalypse. For environmentalists, this was the stuff of which their dogma is made. The beetles had not even finished their meal before global warming was fingered as the culprit by local editorialists, politicians including Montana’s Sen. Max Baucus, and grassroots eco-activists.
Pine-bark beetles are usually killed by a spring frost, but an unseasonably warm spring rouses the bugs and sends them on their scourge. The enviros had a prima facie case — a warmer globe would mean more beetles — if you’re the type of person who finds a causation in every correlation. In fact, worse beetle kills certainly occurred before a written record began, which in the American West is not so long ago. This really didn’t matter to the environmentalists, for whom everything hitherto designated “an act of God” is now attributable to anthropogenic global warming.
As the warming palaver got moving in the usual quarters, the real story was happening on the ground, where a pattern was emerging. The national forests and federally designated wildernesses in western Montana were devastated by the beetle, while state, tribal, and private landholdings that bordered them suffered considerably less damage. And those non-federal lands have seen an uptick in logging over the past several years, even as federal timber sales continue to plummet.
The Confederated Salish and Kootenai tribal forest abuts the Lolo National Forest, subject of ad nauseam environmental litigation. On the Indian reservation, logging is expedited because the forest, under the tribe’s management policy (much like the original policy of the national forests), must pay for its own upkeep and be a source of profit for the tribe. The tribal court hears lawsuits concerning land use, but it often requires environmental groups to post a bond to cover part of the cost in delaying a logging project, which will be forfeited if the environmental litigant loses. Such lawsuits rarely proceed — why would they, when litigating in federal courts is almost always free and, because of attorney’s-fee awards, even profitable for the plaintiffs?
The consequence is that tribal, state, and private forests have been thinned. So when the beetle came, these forests suffered far less damage than the overgrown (but otherwise biologically similar) national forests bordering them.
The most profound irony of the locking up of timber resources is that the national forests and many other lands that man has presumed to keep in their “natural” state are, in fact, far from untouched to begin with. American Indians, along with trappers, settlers, ranchers, and farmers (all of whose main fuel source was wood), game wardens, the U.S. Fish and Wildlife Service, the U.S. Forest Service, and the BLM — all have an accumulated history of centuries of intensive meddling in places we wrongly regard as “untouched” nature.
Man has transformed nature, and that bell cannot easily be unrung. While environmentalist doctrine today favors the concept of preserving “wilderness,” Indians on the eastern seaboard and in the West were active foresters who wielded fire to manage forests and brushland. As William Cronon argued in his classic work of environmental history, Changes in the Land, controlled fires set by American Indians resulted in a landscape considerably altered from its natural state, with greater habitat for beaver and other fur-bearers and widespread growth of wild strawberries, which would have been crowded out by a forest run rampant. All this, even before the white man had discovered this nature.
Only later did romantics like Henry David Thoreau wax poetic about a great, untouched, even slightly menacing woodland. They dreamt up what was essentially a new nature. The long-term effect of this strange intellectual moment has been thickly grown public forests that are more susceptible to beetle outbreaks and catastrophic fires — nature’s unpleasant way of catching up on an overgrown forest that has previously escaped its earthly fate, and that man lost his own chance to thin due to something rather less timeless, the U.S. federal court system.
Pat Connell, a forester and a state legislator representing part of the thickly forested Bitterroot Valley in southwest Montana, says that trees can go two ways — by fire or by logging — and that the latter is much preferable.
“I believe in the profession of forestry, and one of the fundamental concepts is that we can use this wood, instead of letting it burn,” Connell says. Each tree is harvested differently. “When we harvest lodgepole, we cut it wide and burn the ground, replicating what a fire does.” With ponderosa, the cutting is more sporadic, reflecting the lower-intensity burn that occurs among that species of pine.
Indeed, the natural option is harsh and undesirable. A fire that destroyed the beetle-killed trees would create massive air pollution, require the evacuation of human settlements, spur massive erosion, and kill off a huge amount of the region’s wildlife. Yet this is the outcome all but guaranteed by federal environmental law.
What can be done to reform these nonsensical laws? The better question might be: Where to begin? Reforming the ESA would probably be the biggest battle of “optics” that one could pick on the environmental-law front. Winning it would mean more quickly turning management over to states and removing the loophole that can make it impossible to delist species like wolves even after they’ve met their “recovery targets.” Process must not take precedence over science — but that’s what happens all too often under a draconian environmental law that stifles local innovation.
Empowering local management should be at the heart of reform. Some states (Utah, Nevada, Oregon, Idaho, and Alaska) are more than half-owned by the feds. National forests, parks, wildlife refuges, and wildernesses all look to Congress for appropriations, and their revenues are not linked to what actually occurs on the land itself. That must change. The fruits (or in this case the lack of fruits) of land-management policy should be felt by the local chapter of the federal bureaucracy.
Congress can take a big step forward by making national forests dependent on forestry revenues for their operating budgets. No logging? No money. Instead of setting aside money to fight forest fires, spend some of it to spur the construction of biomass energy-generation facilities, thereby creating another constituency to demand beetle-killed timber.
Similar methods could work for the sparser and less scenic, but often energy-rich, BLM holdings. Federal lands that are meant to be set aside solely for posterity and recreation, like the national parks, should be more reliant on user fees.
Unfortunately, the only solutions on the table are half-hearted measures like that of Sen. Jon Tester, a threatened Montana Democrat up for reelection in 2012, who offered to put more wilderness aside in exchange for a promise of more logging on federal lands. At least, that was what Tester originally proposed; after the bill emerged from the wringer of Democratic committee staff, there remained the requirement to create more “wilderness” land permanently set aside from human use, but the logging mandate had disappeared. The bill was never voted upon, and Tester plans to reintroduce it, with a logging mandate, in the new Congress.
I am a newly elected official representing a vast slice of underpopulated, resource-rich Montana, so I have seen firsthand the disenchantment of ranchers, farmers, foresters, and recreationalists in the face of a federal officialdom that is aloof and unresponsive to local concerns. Distrust is running high, especially in the wake of a leaked Interior Department memo that appeared to endorse a plan to set aside 2 million acres of historic cattle rangeland as a “grasslands national monument.” Such a plan would erode the livelihood of families who have ranched on BLM lands for generations, and would foreclose any possibility of drilling for natural gas in as-yet unexplored areas of the state.
Why do Montanans and westerners in general have such distaste for the federal government? Just look at the reams of court opinions, the numerous injunctions, and the bureaucratic tangles that never even make it to court. America’s federal lands used to be engines of productivity. Now, they are fallow — even as Montanans remember brighter days, even as they await an inferno that will destroy the beauty of the place where they have lived their lives, even as they worry about a stroke of the president’s pen that could do more to spell out a rancher’s future than he himself does.
The rural western states’ economy always has revolved around natural resources, and always has been dependent on public lands. The more federal policy erodes that consortium, the more livelihoods it will destroy and the worse the ultimate conflagration will be — not only of trees, but of the political sentiment of westerners, trammeled by the law.
– Mr. Kavulla is a public-service commissioner of the state of Montana and a former associate editor of National Review.