Custer-Gallatin wins salvage logging lawsuit

On Feb. 6, Judge Molloy in the Montana District Court upheld the Custer National Forest’s  use of the categorical exclusion applicable to projects not exceeding 250 acres for the Whitetail Salvage Project.  In Native Ecosystems Council v. Weldon he found that even though it was the third project in the area affected by the 2012 Ash Creek Fire, the record showed that it was not reasonably foreseeable when the 2013 and 2015 projects were planned, and so the agency had not illegally “segmented” the projects to keep the acreages below the threshold for using the CE.

The court also found that effects on black-backed woodpeckers would be minimal because “the combined area of the Whitetail, Phoenix, and roadside hazard projects affect less than 2% of the highly suitable black-backed woodpecker habitat within the 90-kilometer cumulative effects area,” and “Abundant nesting and foraging habitat for black-backed woodpeckers will remain in the project area and cumulative effects area.”  This level of effects did not require an EA.  Plaintiffs had based much of their case on declarations they submitted by Chad Hanson.  However, the court refused to consider the declarations because documents that “challenge the underlying science and data used by the agency” can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision).  The judge found compliance with the 2012 Planning Rule requirement for using the best available scientific information for the woodpeckers (which is odd because the Planning Rule is not supposed to apply to projects).

The court also found that the project is consistent with the forest plan.  The project is in a wildlife management area, but the plan had selected mule deer for emphasis in this area, and it was proper under the forest plan for the Forest Service to balance the needs of black-backed woodpeckers and other species in determining to conduct the salvage harvest.

7 Comments

  1. I’ve said, many times, that any plans to salvage log should study the entire burned area. That ensures that the areas where no logging will occur be dedicated to BBW’s and other cavity nesters. If they aren’t in the study area, it is unclear if they ‘count’ as mitigation efforts. Remember, that BBW’s use the ‘habitat’ for just 6 years, before they have to move on to a ‘fresher’ burned area.

    Using Hanson as your wildlife ‘expert’ is probably not a good move.

    • Larry said, “Using Hanson as your wildlife ‘expert’ is probably not a good move.”

      Why not, Larry?

      For starters, you realize that, according to Jon Haber, the Court “refused to consider the declarations because documents that ‘challenge the underlying science and data used by the agency’ can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision).”

      You also realize that Chad Hanson “earned his Ph.D. in Ecology from the University of California at Davis with a research focus on forest and fire ecology and the rare wildlife species that depend upon post-fire habitat in forests of the Sierra Nevada and elsewhere in the western U.S.. He has published an impressive list of scientific research papers on forest and fire ecology, wildlife use of burned forest and fire history and trend.” This is after earning a BS in science from UCLA and a law degree from the University of Oregon.

      You also realize that Dr. Hanson has worked closely with Dr. Richard Hutto, who directs the University of Montana’s Avian Science Center, and the two have published scientific papers together? And that Dr. Hutto is easily one of the world’s leading experts on birds and post-fire landscapes?

      But again, the Court just flat-out refused to consider the declaration from Dr. Hanson because apparently they can’t be submitted outside the administrative records…which has nothing to do with your somewhat sophomoric distain for Dr. Hanson.

      • We’ll just chalk it up as yet another loss to Hanson and his ilk in fighting against careful salvage logging consideration. Jeeeeeez, you’d think he would be able to get a ‘real’ wildlife biologist to provide leadership but, maybe they don’t agree with his ideas (which include saying that “thinning projects are worse for the land than wildfires”.) I’m just glad to see that judges aren’t buying his ‘snake oil’. The reality says that there are plenty of dead trees for the six years of needs of the BBW’s.

        • Wow, Larry.

          Once again, just pointing out that, according to Jon Haber, “the court refused to consider the declarations because documents that ‘challenge the underlying science and data used by the agency’ can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision.”

          Therefore, you aren’t making much sense Larry.

          • I guess the REAL questions are whether Hanson’s “new science” would apply to other forests, in other places, in other States. Would it overrule “Agency Deference” and site-specific data? I do think that Judges are getting very tired of such nit-picking, and they are finally deciding that the Forest Service has been doing its due diligence in salvage logging plans. Plans that provide for varied wildlife and many other benefits, at least in my long experience in USFS salvage logging inspection positions.

      • Regardless of your like or dislike of Hanson, the idea of looking at the big picture has long been missed. When making a decision on any salvage project, then entire area effected needs to be considered. The idea that you have to leave hundreds to thousands of snags in harvest units when the harvest area is less than 5% of burn, the other 95% has 100% of existing snags left, is just one example of ignoring the big picture……. It would appear that the people against effective management want to restrict 95% of the 5%….. And this attitude is not restricted to salvage.
        While it’s great to rattle off the academic accomplishments, the reality is that on the ground attitude needs to swing back to effective, active management or the forest health will continue to degrade.

        • Opponents of active management truly believe that we need larger and more intense wildfires, and that thinning is worse for our forests than wildfires. Will the Forest Service close some more loopholes, or will the Trump Administration produce new rules that will not stand up in court? Actually, I did like the trend of closing loopholes, one by one, just to get some kind of work done, on the ground. The current “pace and scale” of restoration is probably only about a third of what it should be, in the west, depending on site-specific conditions.

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