Ninemile logging project did not follow Lolo’s forestry plan
MISSOULA – A federal magistrate in Missoula and a federal judge found that the Lolo National Forest had not done enough work or provided enough information to justify parts of a logging project in the Ninemile region .
Missoula Federal District Judge Dana Christensen issued his ruling on Tuesday upholding the views of Examining Magistrate Kathleen DeSoto that Lolo National Forest had not provided enough information and rationale to propose the Soldier-Butler lumber project in the Ninemile Creek Basin, located west of Missoula.
Specifically, the ruling found that Lolo National Forest had not verified with the US Fish and Wildlife Service how 137 miles of previously untraceable road could affect grizzly bears. In addition, the Lolo Forest Plan of 1987 has certain requirements for elk cover and tree snags that the project did not meet.
Instead, forest managers said they could achieve the same goals in other ways, but never showed how it could be achieved.
“The problem with the defendants’ objection is the same problem that Justice DeSoto has repeatedly identified in his findings and recommendations,” Christensen wrote. “Namely, that the defendants have not reported any authority supporting the idea that the site-specific analysis absolves them of their obligations to comply with the forest plan in force.”
The national forest management law requires national forests to comply with the requirements of their forest plans. DeSoto found that the Soldier-Butler project managers did an acceptable job following the forestry plan in terms of the processes of logging, road building, and water quality protection. However, the same cannot be said for ensuring sufficient forest cover for wintering elk or standing snags for other wildlife.
The 2019 project report itself acknowledged that it would remove more trees than the forest plan allowed – the plan requires a minimum cover-to-forage ratio of 50:50 – so an amendment to the forest plan would be required. Government lawyers then attempted to argue that the 50:50 ratio was not a “rigid requirement,” but neither DeSoto nor Christensen agreed, pointing out that the use of the word “minimum” was unambiguous.
Christensen went on to say that some of the other measures proposed by the Forest Service may have been equivalent to the 50:50 report, but the judges had no way of knowing.
“As Justice DeSoto concluded, the problem in this case is that the defendants have not provided any updated calculations. The court cannot just take the defendants’ word for it, ”Christensen wrote.
The same applied to tree snags. The forest plan calls for full multi-storey stands of at least 30 to 40 acres that contain large snags for birds and other wildlife. Government prosecutors have attempted to argue that this requirement only applies to old growth forests. But Christensen disagreed, noting that the forest plan identifies the area as providing “a succession of old-growth forests”.
And again, although government lawyers argued there was a requirement for the number of snags, DeSoto said project managers had not provided any explanation on how snags would be preserved for meet the requirements of the forestry plan.
“Without more, the Court has no choice but to find that the NFMA has been violated,” Christensen wrote.
Completed in April 2020, the Soldier-Butler project would burn and thin about 10,000 acres along the northeast side of Ninemile Creek and harvest 18 million board feet. To accommodate the planned 3,000 log trucks, the Forest Service intended to construct 7 miles of new roads, 9 miles of temporary roads and canceled a previous commitment on the adjacent Frenchtown Face project to decommission 37 miles of existing road. .
In her decision, Lolo National Forest Supervisor Carolyn Upton said “impacts on wildlife, especially big game and grizzly bears, weighed heavily on my decision.”
In October 2020, the Alliance for the Wild Rockies and the Flathead-Lolo-Bitterroot Citizen Task Force filed separate lawsuits challenging the project. The task force had previously performed its own analysis of existing roads in the Ninemile watershed and found that the road density was more than double that recommended for grizzly bear habitat.
The US Fish and Wildlife Service issued a biological forestry advisory that allowed the additional 7 miles of road. But that was before an additional 137 miles of “indeterminate” roads were reported on the forest in the 2019 Soldier-Butler analysis. Lawyers for environmental groups argued that the original biological opinion was wrong and that more than roads shouldn’t be built until the 137 miles are factored in.
Government lawyers argued that the project got its own organic opinion in 2020 and that should be enough. But the US Fish and Wildlife Service was not aware of the 137 miles, so there’s no way of knowing how they could have affected the project total.
The Forest Service has been ordered to update the 2012 biological notice for the forest plan before the project can proceed. Government prosecutors said they already had a draft opinion, but judges said that was not enough as there was no way to know if the problems had been fixed.
“The grizzly bears are finally getting the due diligence they deserve in the Ninemile,” said Patty Ames, task force chair. “This area is critical to regional grizzly bear recovery, including recovery in the Bitterroot ecosystem. Now the Forest Service must consider the impact of all roads on grizzly bear habitat use and survival and use the best scientific information available.
Lolo National Forest must now either appeal the case or conduct a more in-depth analysis to justify some of the unsubstantiated claims it made in the environmental assessment of the project. Anyway, the project is on hold at the moment.
Mike Garrity, executive director of the Alliance for the Wild Rockies, was pleased with the outcome.
“It is unfortunate that the only way to get the Forest Service to obey the law is to prosecute them. But what we hope is that our congressional delegation and our governor will finally take note, case by case, of serial violations of the Forest Service. Our politicians really need to make sure the agency stops this pattern of constant illegality instead of repeatedly blaming “environmental activists” for forcing the Forest Service to obey the law, ”Garrity said.
However, Senator Steve Daines disagreed.
“Frivolous litigation sparked by obstructive groups coupled with arduous bureaucratic processes is once again blocking much-needed forest management projects in Montana and putting well-paying jobs in the wood at risk. We cannot allow this to continue. Active forest management is essential to reduce the risk of catastrophic forest fires and as we have seen from this wildfire season, we need more forest management, not less, ”said Daines in a press release.
Contact reporter Laura Lundquist at [email protected]