Judge blasts Forest Service, reaffirms ruling protecting endangered species on 111,740 acres of National Forest lands

The following press release is from the Alliance for the Wild Rockies. – mk 

The federal district court in Montana reaffirmed and clarified its September 2014 ruling that the U.S. Forest Service violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) when it approved logging procedures for 111,740 acres of newly-acquired national forest lands.The Court’s ruling requires the Forest Service to halt logging until it complies with both the National Environmental Policy Act and Endangered Species Act requirements to analyze “potential environmental effects, reasonable alternatives, and cumulative impacts on those lands” and “comply with the consultation requirements of Section 7 of the ESA with respect to those protected species affected on the lands.”

These so-called “Legacy Lands” in Montana’s Swan Valley were former Plum Creek Timber Co. lands which were purchased by the federal government and are now part of the national forest and subject to federal laws that protect the environment and threatened or endangered species.  These lands are critical habitat for grizzly bears, lynx, wolverine, bull trout, and a very rare plant called water howellia.

Four conservation groups, the Alliance for the Wild Rockies, Swan View Coalition, Friends of the Wild Swan, and Native Ecosystems Council, filed a lawsuit in 2013 in Federal District Court challenging the Glacier Loon Timber Sale near Lindbergh Lake in the Swan Valley.

“The U.S. Forest Service authorized logging procedures and thousands of acres of clearcutting on these lands without any analysis of how the logging might affect and harm endangered species in the area,” said Mike Garrity, Executive Director of the Alliance for the Wild Rockies.  “Of particular concern to local conservationists is the lynx, a rare forest cat that requires large expanses of unlogged area for survival.  The Swan Valley is the best potential habitat in the Lower 48 states for lynx, but lynx may be declining in the area.”

“The federal court reaffirmed that the federal government violated the law and the ruling couldn’t have been more clear,” Garrity said, pointing to the language in the ruling that “the Court has compelled no substantive changes to Agreed Operating Procedures but merely required the Forest Service to take the procedural steps obligated by law.”

Moreover, in addressing Forest Service concerns that the ruling would enjoin new Harvest Plans until the required compliance with the law has been done, the Court put the blame directly on the agency, writing:

“In any case, the Forest Service’s argument regarding the difficulties and potentially adverse consequences of complying with the law carry little weight here, where the troubles complained of resulted from the Forest Service’s failure to follow the law in the first instance. Had the Forest Service conducted the requisite analysis prior to taking agency action through approving the Agreed Operating Procedures, the agency would not be in its current predicament.”

“The bottom line,” Garrity concluded, “is very good news for the threatened and endangered species that call these lands home, since all commercial logging on these ‘Legacy Lands’ must cease until the Forest Service conducts the proper analysis required by the Endangered Species Act and National Environmental Policy Act and puts in place appropriate protections for the endangered species in the area.”

Please find the court order here.

UPDATE: Here’s more background information about this issue, from the Fall 2014 Newsletter of the Swan View Coalition, including a discussion about the Plum Creek Timber Co and Nature Conservancy’s “Montana Legacy Project.”

11 Comments

  1. I would think the Forest Service would know this so why violate NEPA and theESA? This action souldns liek those taken in the 80’s and 90’s where the FS lost most appeals and court cases. There are always two sides to an issue so I wonder what the FS side is.

  2. This isn’t as simple as it would appear nor as it is described above. This case involves lands donated to the Forest Service by The Nature Conservancy, who bought them from Plum Creek. When TNC donated the land they retained ownership of the merchantable timber – meaning the Forest Service now owns the land but doesn’t own the trees. TNC retained a deeded right to harvest the trees to help cover their costs for purchasing and donating the land.

    The question is what decision authority does the Forest Service have over something it doesn’t own and is the Agency required to conduct NEPA analysis and ESA compliance on an activity it has no control over. The court seems to think that the Agency does have a responsibility. For those who understand NEPA that makes for difficult analysis to write – what is the “no action” alternative?

    This puts the Forest Service in the hard place of analyzing the effects of someone else’s actions that they can’t control.

    • The comment above by “Andy” (not I) is not quite correct. The Forest Service accepted the donation pursuant to 36 CFR § 251.14 (“Conditions, rules and regulations to govern exercise of timber rights reserved in conveyance to the United States”). That regulation states that the donor “is authorized to construct and maintain buildings, facilities, and other improvements, including roads needed to log the reserved timber. Construction and maintenance plans, designs, and location shall be approved in writing by Forest Service before construction is started.”

      So, in fact, the Forest Service reserved substantial decision-making authority when it accepted the donation. The FS has to approve, and, thus, can disapprove, the road designs &/or locations. For example, the FS can use this authority to impose road density requirements (e.g., for the grizzly) or to require more expensive logging systems that use few roads (e.g., helicopter) to protect soil and water.

      This is precisely the basis for the federal district court judge’s ruling:

      The reserved logging rights regulation also provides the Forest Service with discretionary control as it requires agency approval of road building activities. 36 C.F.R. § 251.15(a)(5). Recently, the Ninth Circuit reasserted the low standard for discretionary control in assessing “agency action,” holding that “so long as a federal agency retains ‘some discretion’ to take action to benefit a protected species,” Section 7(a)(2)’s consultation requirement is triggered. Nat. Resources Defense Council, 749 F.3d at 784. Moreover, “[t]he agency lacks discretion only if another legal obligation makes it impossible for the agency to exercise discretion for the protected species’ benefit.” Id.; see also Turtle Island Restoration Network v. Natl. Marine Fisheries Serv., 340 F.3d 969, 976-77 (9th Cir. 2003) (holding that because the Compliance Act entrusted the Fisheries Service with discretion to issue permits to inure to the benefit of the species, ESA consultation was required). In this case, the Agreed Operating Procedures do not deprive the Forest Service of discretion to shape future logging plans for the benefit of protected species.

      Swan View Coalition v. Weber, 2014 U.S. Dist. LEXIS 136343, 16-17 (D. Mont. 2014)

      • I would hope, that at a bare minimum, any plans must follow the Federal BMP’s. Additionally, if the Forest Service has to approve roads, landings and skid trails, etc, they should have to follow existing standards of construction.

        I’ve seen a similar situation on the Allegheny NF, where oil companies still own the below-ground rights to lands donated long ago. When the oil company wants to put in 40 new well pads, a timber project is put together to clear those pads. I’m also assuming that there are locations where such a pad is not allowed. Each pad also requires a maintenance road, too.

        • The Allegheny situation is a mess because, in the 1930s, the FS was too cheap to buy the mineral rights thus creating today’s split-estate. No donations were involved — these were land purchases by the Forest Service under the Weeks Act. The mineral owners enjoy unfettered access across the federally-owned surface to access their below-ground private property.

    • better yet, what is the proposed action first???? did the nature conservancy just say– ya just go ahead and log it all, without surveys??? without specific requirement? without specific protections? NC should know better then to do that, they are an environmental conservation group. if this is the case, then they should be held liable, not FS. Thanks for the fuller story. I know NEPA very well and can see the confusion.

  3. Judge Molloy actually conceded that it was a “close question” on whether the Forest Service had enough discretion for project approvals to amount to an “agency action” for the purpose of ESA and NEPA. Compliance will pose some analytical challenges, but the agency does have somewhat similar experience in providing access required by ANILCA to other lands where the actions on those lands are outside the authority of the Forest Service.

    The planning question is what the long-term management of these lands should be now that they are in federal ownership. It defaulted to the existing plan direction, but that direction was not written for these areas. The Flathead National Forest is revising its plan now, and intends to incorporate the NCDE Grizzly Bear Conservation Strategy, which incorporates the Swan Valley Grizzly Bear Conservation Strategy, which the Forest Service thought still applied to this area. I think that needs to be rethought.

  4. Pingback: TNC terminated logging agreement with Plum Creek following illegal logging – A New Century of Forest Planning

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