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Judges: Proposed Ninemile logging project didn’t follow Lolo forest plan

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Posted at 5:48 PM, Oct 06, 2021
and last updated 2021-10-06 19:48:55-04

MISSOULA — Both a Missoula federal magistrate and a federal judge have found that the Lolo National Forest did not do enough work or provide enough information to justify parts of a Ninemile area logging project.

On Tuesday, Missoula federal district Judge Dana Christensen released his ruling backing up the opinions of Magistrate Judge Kathleen DeSoto that the Lolo National Forest had failed to provide enough information and justification for proposing the Soldier-Butler timber project in the Ninemile Creek basin, located west of Missoula.

Specifically, the ruling concluded the Lolo National Forest failed to check with the U.S. Fish and Wildlife Service as to how 137 miles of road, previously unaccounted for, might affect grizzly bears. Also, the 1987 Lolo Forest Plan has certain requirements for elk cover and tree snags that the project didn’t meet.

Instead, forest managers said they could achieve the same objectives through other means but never showed how that could be achieved.

“The problem with Defendants’ objection is the same problem Judge DeSoto identified multiple times in her Findings and Recommendation,” Christensen wrote. “Namely, that Defendants have not pointed to any authority supporting the notion that site-specific analysis absolves them of their obligations to comply with the governing forest plan.”

The National Forest Management Act requires national forests to follow the requirements of their forest plans. DeSoto found the Soldier-Butler project managers had done an acceptable job of following the forest plan when it came to the processes of logging, road building and protecting water quality. However, the same could not be said for ensuring enough tree cover for wintering elk or standing snags for other wildlife.

The 2019 project report itself acknowledged it would remove more trees than the forest plan allowed – the plan requires a minimum of a 50:50 cover-to-forage ratio – so it would need a forest plan amendment. Government attorneys then tried to argue the 50:50 ratio wasn’t a “rigid requirement,” but neither DeSoto nor Christensen agreed, pointing to the use of the word “minimum” as being unambiguous.

Christensen went on to say some of the other measures the Forest Service proposed may have equaled that of the 50:50 ratio but the judges had no way of knowing.

“As Judge DeSoto concluded, the issue, in this case, is that Defendants have not provided any updated calculation at all. The Court cannot simply take Defendants’ word,” Christensen wrote.

The same thing applied to tree snags. The Forest Plan requires multi-storied, full stands of at least 30 to 40 acres that contain large snags for birds and other wildlife. Government attorneys tried to argue that requirement applies only to old-growth forest. But Christensen disagreed, highlighting that the forest plan identifies the area as providing “for old-growth succession.”

And once again, although government attorneys argued there was requirement for the number of snags, DeSoto said the project managers provided no explanation of how snags would be preserved to meet the Forest Plan requirement.

“Without more, the Court has no choice but to conclude NFMA has been violated,” Christensen wrote.

Finalized 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 enable the anticipated 3,000 truckloads of logs, the Forest Service intended to build 7 miles of new roads, 9 miles of temporary roads and rescinded 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 to wildlife, specifically big game and grizzly bears, weighed heavily in 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 already done its own analysis of existing roads in the Ninemile drainage and found the road density was more than double that recommended for grizzly bear habitat.

The U.S. Fish and Wildlife Service issued a biological opinion of the Forest Plan that allowed the additional 7 miles of road. But that was before another 137 miles of “undetermined” roads were reported on the forest in the 2019 Soldier-Butler analysis. The environmental groups’ attorneys argued that the original biological opinion was flawed, and more roads shouldn’t be built until the 137 miles are factored in.

The government’s attorneys argued the project got its own biological opinion in 2020 and that should suffice. But the U.S. Fish and Wildlife Service hadn’t known about the 137 miles so there’s no way to know how they might have affected the project total.

The Forest Service was ordered to update the 2012 biological opinion for the forest plan before the project could proceed. Government attorneys said they already had a draft opinion, but the judges said that didn’t go enough because there was no way to tell if the problems had been corrected.

“Grizzly bears are finally getting the due diligence they deserve in the Ninemile,” said Patty Ames, Task Force president. “This area is critical to regional recovery of grizzly bears, including reestablishment in the Bitterroot Ecosystem. Now the Forest Service must account for the impact of all roads on grizzly bear survival and habitat use and use the best available scientific information.”

The Lolo National Forest now must either appeal the case or do more analysis to justify some of the unsubstantiated claims it made in the project’s environmental assessment. Either way, the project is on hold for the time being.

Mike Garrity, Alliance for the Wild Rockies executive director, was pleased with the outcome.

“It’s unfortunate that the only way we can get the Forest Service to follow the law is to sue them. But what we hope is that our Congressional delegation and governor will finally take note, in case after case, of the serial law-breaking at the Forest Service. Our politicians really do need to ensure that the agency stops this pattern of constant illegality instead of repeatedly blaming ‘environmental activists’ for making the Forest Service follow the law,” Garrity said.

However, Sen. Steve Daines disagreed.

“Frivolous litigation brought on by obstructive groups coupled with arduous bureaucratic processes are once again blocking badly needed forest management projects in Montana and putting good-paying timber jobs at risk. We cannot allow this to continue. Active forest management is key to reducing the risk of catastrophic wildfires and as we saw from this wildfire season, we need more forest management not less,” Daines said in a statement.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.