Lawmakers are split over Rep. Matt Rosendale’s Forest Information Reform (FIR) Act, arguing over whether one environmental lawyer who opposes it was a “serial litigator” or a “serial justice warrior.”
The FIR Act was one of four bills discussed in this Congress’s first meeting of the House Natural Resources Subcommittee on Federal Lands.
The Republicans who now control the House pledged that the hearing would “advance real, concrete solutions to address the most pressing crisis facing our federal forests: catastrophic wildfires.”
The FIR Act would undo the controversial 2015 Cottonwood decision. Detractors see that ruling as a major impediment to managing many of the nation’s overgrown forests, while advocates consider it a crucial advance in the protection of vulnerable species and habitats.
Decided in the 9th U.S. Circuit Court of Appeals, which presides over Alaska, California, and much of the western United States, Cottonwood requires the Forest Service to reinitiate consultations with the Fish and Wildlife Service in a wide range of circumstances. In practice, that leaves more daylight for lawsuits by environmental groups in the 9th Circuit’s jurisdiction.
Notably, Western states in the neighboring 10th District aren’t subject to Cottonwood, adding to confusion and inconsistencies across adjacent tracts of federal land.
“This should not be a partisan issue,” said Rep. Tom Tiffany (R-Wis.), who chairs the subcommittee.
He pointed out that both Presidents Barack Obama and Donald Trump tried to roll back Cottonwood.
The current partial fix for Cottonwood, part of a 2018 omnibus bill, expires on March 23.
“There needs to be a permanent solution,” Rosendale (R-Mont.) said, noting that his legislation would “prevent the Forest Service from facing a perpetual cycle of litigation.”
He and his colleagues blamed major fires in New Mexico and Montana on delays ultimately traceable to Cottonwood.
‘Serial Litigant’ or ‘Serial Justice Warrior’ Testifies
A big point of contention was the presence of witness Susan Jane Brown, a guest of the subcommittee’s Democrats.
Brown is a lawyer with the Western Environmental Law Center who teaches at Lewis and Clark Law School in Portland, Oregon.
The Western Environmental Law Center lists the Cottonwood Environmental Law Center, plaintiff in the Cottonwood decision, among its “clients and partners.”
Tiffany spoke from behind a few tall stacks of papers—the documentation, he said, of Brown’s “nearly 60 active and pending lawsuits.”
He characterized Brown as a “serial litigant.”
Rep. Sydney Kamlager-Dove (D-Calif.), who was substituting for ranking member Joe Neguse (D-Colo.), had a different take.
She described Brown as a “serial justice warrior.”
Kamlager-Dove said the FIR Act “could be really problematic for newly listed species and for adapting management plans as the impacts of climate change grow.”
By contrast, Rosendale argued that his bill would let the Forest Service “incorporate new information” into their plans, including about species newly listed under the Endangered Species Act, in place of restarting the consultation process from square one.
While Tiffany spoke from behind a stack of Brown’s litigation, Rep. Val Hoyle (D-Ore.) introduced her fellow Oregonian from behind a laptop adorned with a multicolored decal that read “Do More of What Makes You Happy.”
Brown testified that she was speaking “in defense of the Endangered Species Act.”
She said that the FIR Act would run contrary to the spirit of the Constitution as well as the United States’ “long and powerful history of social change.”
“As a nation of laws, their enforcement is central to our democracy,” she said.
Brown argued that the imminent expiration of the 2018 Cottonwood fix wasn’t a big deal, given how often the Forest Service voluntarily reinitiates consultations.
“Only rarely is litigation required to compel compliance with the law, and then most reinitiations are completed expeditiously,” she testified.
Brown told lawmakers that new money for the Forest Service in the Schumer–Manchin reconciliation bill and other recent legislation “should make the need for [the FIR Act] obsolete.”
She also argued that outdated forest plans were a more important issue than the downstream effects of Cottonwood.
Other experts who spoke at the hearing were more supportive of the effort to address the 9th Circuit’s precedent.
“Cottonwood would add new obstacles to forest restoration,” said Jonathan Wood of Montana’s Property and Environment Research Center, a free-market environmental group.
Ryan Bronson of the Rocky Mountain Elk Foundation, a hunting and conservation organization, said his group “strongly supports” the FIR Act.
Chris French, deputy chief of the National Forest System, said the U.S. Department of Agriculture (USDA) “has concerns” with the bill. (The Forest Service is an agency within the USDA.)
He added that the USDA would “like to work with the subcommittee” and Rosendale “to resolve those issues.”
French also touched on land management plans, which Brown had said should be the Forest Service’s real priority in lieu of addressing Cottonwood.
“It appears that the intent of the [FIR Act] would allow us to continue focusing on updating our land management plans while ensuring that habitat conservation and protection of endangered species continues through project-by-project consultation,” he said.