A guest post from JZ…
Conservation Groups file lawsuit in Federal District Court to stop logging in Flathead National Forest
On a recent post Matt and I were discussing “frivolous” lawsuits. Matt correctly pointed out that a “frivolous lawsuit” is a legal term that could lead to disbarring of the lawyers and the case being thrown out of court. I suggested “misguided” may be a better characterization…and I’m sticking with that. Curious to see where others think this one falls.
Below are some excerpts from an AWR press release (I added emphasis in caps):
“Three conservation groups, the Alliance for the Wild Rockies, Friends of the Wild Swan and Native Ecosystems Council filed a lawsuit on May 29th, 2012 in Federal District Court in Missoula against the U.S. Forest Service and the Fish and Wildlife Service to stop the Flathead National Forest’s PRE-COMMERCIAL THINNING Project. The Project authorizes LOGGING of 3,650 acres across the Flathead National Forest in areas occupied by the threatened grizzly bear, bull trout, Canada lynx and critical habitat for lynx and bull trout, and along the North Fork of the Flathead River, a Congressionally designated Wild and Scenic River corridor. The LOGGING project was also approved as a categorical exclusion, preventing further analysis of its environmental impacts under the National Environmental Policy Act. “
“Michael Garrity, Executive Director of the Alliance for the Wild Rockies said, “The Flathead National Forest is moving ahead with this large LOGGING project in lynx and bull trout critical habitat without analyzing and disclosing the ecological impacts to the public.” “
“”The Forest Service is attempting to deregulate LOGGING from Congressional oversight and public participation…”
“Garrity concluded, “Congress requires the Forest Service to do three things when they plan massive TIMBER SALES, give the public an opportunity to participate in the decision, disclose to the public the potential impacts of the LOGGING, and give the public different alternatives to accomplish the purpose and need of the TIMBER SALE…”
So I was confused…is it a pre-commercial thinning project that cuts small trees to improve the health and vigor of the residual stand or is it a “timber sale” and “logging” project???
I consulted the dictionary:
the process, work, or business of cutting down trees and transporting the logs to sawmills.
to cut (trees) into logs: to log pine trees for fuel.
to cut down the trees or timber on (land): We logged the entire area in a week.
verb (used without object)
to cut down trees and get out logs from the forest for timber: to log for a living.
Then I consulted the decision:
Click to access 70985_FSPLT2_059305.pdf
(DM, pg. 2) “The areas included in this project do not contain trees of commercial size and will not produce merchantable wood products.” And “The diameter of the cut saplings/trees will range between 1” and 6” Diameter at Breast Height (DBH), with most of the cut stems being 2-4” DBH.”
Really??? PCT is “logging”??? That certainly stretches credibility and an interesting spin by Mr. Garrity. And he took offense to being called a “professional obstructionist.”
I sure hope his complaint didn’t characterize pre-commercial thinning as “logging”. One could argue that might be frivolous.
A copy of their appeal can be read here:
16 thoughts on “Conservation Groups file lawsuit in Federal District Court to stop logging in Flathead National Forest”
JZ: You are correct. Between 1973 and 1990 my crews pre-commercially thinned (“PCT”) more than 18,000 acres, of which I personally thinned about 1200 or so. None of the trees were sold, a few were salvaged as Christmas trees every December, and the few patches that did have any commercial size to them — such as an occasional hemlock or true fir patch — were worth too little, or were situated too far from, current markets that they were basically being groomed for a short term harvest so soon as markets allowed. It is certainly NOT LOGGING, nor does it have anything to do with a TIMBER SALE. Some of these trees my crews had planted themselves; a lot of them have been logged since they were thinned. So far as I know, none of the 80,000+ acres of logging and reforestation my crews did over a 20 year period have ever burned up in a wildfire. That says something, too. These lawsuits are pure bull trout.
JZ: Thanks for the post. I found your excerpts from the AWR press release to be interesting, especially because you apparently decided that all the meat-n-potato quotes from Arlene Montgomery weren’t of any value. Why did you chose to not post this following information?
“The public notice was vague and did not provide adequate information on the effects of this project,” said Arlene Montgomery, Program Director for Friends of the Wild Swan. “It did not provide accurate maps or a description of where the 3,650 treatment acres were located.”
“I reviewed the project file that was supposed to contain the analysis for wildlife, fish, vegetation, soils, and other resources. What I found were discrepancies between and within the Forest Service team’s reports. For example, the bull trout analysis did not identify where treatments will occur in relation to bull trout critical habitat and it put the site-specific analysis off to a later time. But with a categorical exclusion there will be no later time for analysis. There appears to be extensive thinning planned for Big Creek, which is bull trout critical habitat, yet there was no analysis,” Montgomery continued.
“Based on the lack of information and analysis as well as other issues we raised in our comments, we do not believe that this project qualifies for a categorical exclusion. Extraordinary circumstances exist and the Flathead failed to take a hard look at the cumulative effects to sensitive, threatened and endangered species and other forest resources,” Montgomery added.
JZ, would you agree that a Forest Service public notice about a specific management proposed management project should include accurate maps and a description of where the 3,650 treatment acres are located?
Would you agree that a Forest Service project file shouldn’t include discrepancies between and within Forest Service team reports dealing with wildlife, fish, vegetation, soils, etc? Would you agree that the Forest Service should let the public know where treatments will occurs in relation to bull trout critical habitat?
Of course, the irony here, as Arlene Montgomery points out, is that since this is a “Categorical exclusion” there’s no later time analysis.
Anyway, I’m all for an open discussion about this project and the merits of the lawsuit. However, if we’re going to have that discussion, let’s not excerpt out important parts of the concerns coming from the plaintiffs. I would agree with JZ; however, that it’s a stretch to call a PCT project “logging” for the reasons JZ lists above.
Below is a link to the plaintiffs complaint:
I agree with you Sharon and Bob. Frivolous might be a good word, however, i have put these law suites in the ridiculous category. Once i spent the time to look over the appeal i found exactly what was i thought. Over generalized assumptions regarding past responses and appeals based on pure emotional construct than scientific appurtenance towards a specific project. Was this stand previously logged? Would restoration be held up in litigation?
Re: new photos. Doesn’t look like “logging” to me…
Sharon, that comment “Doesn’t look like “logging” to me certainly misses the entire point.
I’ll pose the same questions to you I posed to JZ:
1. Would you agree that a Forest Service public notice about a specific management proposed management project should include accurate maps and a description of where the 3,650 treatment acres are located?
2. Would you agree that a Forest Service project file shouldn’t include discrepancies between and within Forest Service team reports dealing with wildlife, fish, vegetation, soils, etc?
3. Would you agree that the Forest Service should let the public know where treatments will occurs in relation to bull trout critical habitat?
You can focus on the semantics of “what is logging” all you want, but that’s not really the issue here. The issues are outlined in my questions above and in the plaintiffs brief. I suppose some of you can continue to ignore these issues, but I’m pretty sure the federal courts will not. I’m also pretty sure if your a Canadian Lynx you wouldn’t consider PCT Flathead #3 good habitat, no matter what you call it.
Matthew: Even though you address your questions to JZ and Sharon, I thought I’d throw in my 2-cents worth —
2. No. The more differing opinions presented to the public, the better.
3. Of course not. “Critical habitat” is mostly critical to the bipeds who invented it, and make a living or gain notoriety by promoting its existence. Bull trout aren’t even a trout, and were treated as “junk fish” called Dolly Varden until they were given their own legal status in 1980. You can grow them in a pond. It is “critical” that they be fed, and also not eaten, in order to keep them alive. Also, that they not be called “Dolly Varden” anymore.
So there’s your “semantics” for you. The new pictures accurately portray pre-commercial thinning as it has been practiced throughout the western US for the past 40 years. It is telling that you are not arguing that a lynx might be threatened by this improvement to its habitat (do lynx’s really use artificial human value terms such as “good?”), but rather: “but that’s not really the issue here. The issues are outlined in my questions above and in the plaintiffs brief. I suppose some of you can continue to ignore these issues, but I’m pretty sure the federal courts will not.” Go lawyers! Especially you Portland, Oregon lawyers!
Of course, the lynx already have protected mega-acreage of “potential lynx habitat”, which is already dead.
Matthew, some kind people have given me references to the project documents to check out, so I will have to check them out before I respond.
In #2, what kind of “discrepancies” are you talking about? It seems odd to me if the plaintiffs now think that this was important, that it wasn’t mentioned during the appeal (assuming JZ is correct), when the appeal letter might have been able to explain the reasons.
I thought it wasn’t kosher, in legal world, to litigate on points you didn’t make in your comments or appeal? Outside of legal world, it isn’t doesn’t seem like a straightforward way of asking for what you want from others.
Good points Matt, thanks for the updates and “balance.”
With regard to my omission of Arlene Montgomery’s statements in the AWR press release, I would offer that what she states could be a “legitimate” point of contention and is pretty standard fare for opponents of a proposed action. Mr. Garrity, on the other hand, is making some pretty wild accusations about huge “timber sales” and “logging”, to which I think we all agree are pretty far-fetched and off the mark. That is what I was highlighting.
However, since you brought it up and in the spirit open dicussion and further examining the merits of litigation….
Public notices, scoping documents and maps are often “vague”, referring the reader, if interested to contact the Team Leader for more information. It’s a matter of paperwork reduction, print space capability and funding. After all, there was certainly some criticism of the $30 grand worth of full page ads taken out recently by the timber industry. I don’t think the taxpayers would agree that the FS needs to expound in great length/cost in the newspaper or scoping notices when only a few people are interested in participating as documented here:
“On July 20th, 2010, a legal notice requesting comments on the FNF Pre-Commercial Thinning Project was published in The Daily Inter Lake newspaper briefly describing the project, comment information, and listed a contact for those wishing additional information (Project FileExhibit B1). No comments were received during the 15 day comment period ending August 4th,2010.”
“Notification of the project appeared beginning in the October 1, 2010 issue of the Flathead
National Forest Schedule of Proposed Actions (SOPA) (Project File Exhibit B4).”
“On January 27th, 2011 a letter outlining the revised proposed action and requesting comments was sent out to 6 individuals/organizations who had otherwise expressed interest in the project(Project File Exhibit B3).”
“On January 28th, 2011 a legal notice requesting comments on the revised FNF Pre-Commercial Thinning Project was published in The Daily Inter Lake newspaper briefly describing the project, comment information, and listed a contact for those wishing additional information (Project File Exhibit B2). Five comments were received during the 30 day comment period ending February 25th, 2011.”
“Notification of the revised project appeared in the Flathead National Forest Schedule of
Proposed Actions (SOPA), beginning in the January 1, 2011 issue (Project File Exhibit B4).”
“The Flathead NF received approximately 5 responses on the project, in the form of letters and e-mails. The majority of the comments received were not supportive of the project, although one individual expressed complete support for the project. The concerns expressed included comments about impacts to soils, noxious weed spread, disturbance to wildlife, particularly lynx and grizzly bears, use of the Categorical Exclusion authority, and effects of climate change. Design Criteria were developed to address these concerns and protect resources. Two organizations/individuals requested additional information, which was provided through the FOIA process.”
I would agree Matt, that accurate information needs to be provided, however it would seem in this case that there was plenty of information available to all parties to make 1. an informed decision and 2. a thorough appeal and subsequent litigation.
The decision was upheld in administrative appeal, despite the contentions cited above of AWR and others:
Note that the appeal didn’t cite the poor maps or “discrepancies” in project specialist reports.
Finally…If I were a lynx ,or if were was looking for a lynx, I wouldn’t begin in unit #3, at least until the stand matured and the spruce/fir regen that would be expected with such a thinning created the multi storied stand that lynx and their prey required.
My apologies, upon further review, I stand corrected…it appears that Friends of the Wild Swan and the Swan View Coalition made reference to the poor maps in their appeal points (AWR and NEC did not).
Friends of the Wild Swan are one of the plantiffs. Swan View Coalition is not.
Regardless, my point stands. The ARO letter clearly explains that additional maps were provided as requested,
Lynx like dense young stands where they can find their favorite prey, snowshoe hares, that like to hide and feed on the lower green branches of the conifers.
Just because a timber sale is not “commercial,” doe snot mean it can not have significant effects.
Tree- I am having trouble with the use of the English language here… first we see “not logging” defined as “logging” ; now you seem to be arguing that a “not sale” (not sold, no commercial value) is a “timber sale.”
Perhaps we need new vocabulary:
“taxpayer paid treatment to thin trees with no commercial value” a TPTTNCV or service contract?
Then we could specify the species, current density and diameter, in this case (I don’t know but perhaps) LLP, 2000 stems per acre ???) , 1-6 inches dbh?
Now whether this service contract (?SC:LLP:2000:1-6) has significant effects is a question we can discuss, now that we’ve clarified the question and terminology.
Also, perhaps someone can clarify, I thought the Northern Rockies Lynx Amendment had a certain percentage of acres where LLP PCT that was allowed???
I’m glad that Lynx habitat has been brought up (how could it not these days?) because it leads me to a question I have had recently, which is: given the lack of natural disturbances in the form of stand-replacing fires, how does one propose that “good” lynx habitat be created? It seems to me that it is primarily created through harvest activities that create small to medium (maybe even large) sized openings where dense regeneration can occur.
If the litigants are opposed to thinning these stands to improve tree health and vigor, in addition to opposing commercial harvesting activities of all kinds, and these PCT stands will one day turn into dense mature stands that no longer harbor hares and therefore lynx, where then should they go?
It sounds to me like we need to either re-introduce fire on the landscape (somehow), including those which are stand replacing (not realistic in many areas) or support harvesting activities that can mimic these “patchy” openings for the sake of hares and lynx. Or some mixture of the two.
I am merely a lay person, so please advise.
Good question Chelsea. The dirty little secret is that regen clearcuts are such good lynx habitat that I do believe the Forest Service in Colorado slapped a “Ban” on pre-commercial thinning of regenerated clearcuts. It’s the same old story. If loggers did it–BAD, if wildfires did it-GOOD. It’s also the same old story that the biggest missing ecosystem component in the inland West is “early seral”. I doubt, and I’ve read many “vegatation chapters” in many EIS’s, that there has ever been so much “mature” forest as there is now. I didn’t say “old growth”, I said 100-150 year old forest.Very merchantable,very lousy Hare and therefore lousy Lynx habitat. I’ve often fantasised about getting Judge Molloy to order the USFS to clearcut many tens of thousands of acres to create Lynx habitat…
I’m pretty sure that these Pre-Commercial Thinning stands will not one day turn into dense mature stands. These pre-commercial thinning stands will likely end up logged 25 to 50 years down the road.
Here’s some other information about lynx, snowshoe hares and the habitat needs of both critters.
See the Northern Rockies Lynx Management Direction ROD at pages 11 -13:
“In addition to dense young regenerating forests, multistory forests that have trees whose limbs come down to snow level and have an abundance of trees in the understory, also provide winter snowshoe hare habitat.”
“Recent research in northwest Montana demonstrates that mature multistoried forests provide important winter snowshoe hare habitat and are more important than younger stands. In fact, the researchers questioned whether or not the LCAS would provide for lynx viability and recovery if only precommercial thinning were precluded.”
Attachment 1, page 4: Standard VEG S6: Vegetation management projects that reduce snowshoe hare habitat in multi-story mature or late successional forests may occur only: within 200 feed of administrative sites…, for research studies…, for incidental removal during salvage harvest.”
Also see Squires, et al Lynx Ecology in the Intermountain West 2006 Part 1, page 12 (Winter Habitat Selection):
“Our results indicate that lynx preferentially forage in spruce-fir forests with high horizontal cover, abundant hares, deep snow, and large-diameter trees during winter (Table 1). The high horizontal cover found in multistory forest stands is a major factor affecting winter hare densities (Hodges 2000a,b). Lynx tend to avoid sparse, open forests and forest stands dominated by small-diameter trees during the winter. We also sampled vegetative characteristics at kill sites and compared these to other locations along lynx travel routes. Lynx killed prey in areas of even higher horizontal cover than they generally encountered along their snow-tracks.
And page 20: which shows lynx avoidance of clearcuts.
And page 21: which shows lynx avoidance of thinned stands.
In the Colt Summit lawsuit plaintiffs are alleging that the Forest Service is not complying with Standard VEG S6 because mature multistoried stands are being logged.
The Flathead NF forestwide precommercial thinning project does not analyze or disclose:
1) where lynx (and snowshoe hare) habitat is,
2) how it will be affected by the thinning, or cumulative effects of other projects that are near the thinning units.
There were no maps of the units in the project file until someone with Friends of the Wild Swan asked for them and then what the Forest Service produced was unreadable (no section, township, range or other information that would show where the units are).
Here is the Friends of the Wild Swan’s appeal for those interested. http://ncfp.files.wordpress.com/2012/06/fows-fnf-precom-thinning-appeal-11-18-11.doc
What a pile of conjecture based on the flimsiest of evidence! The part I was willing to accept most was that lynx preferred “winter habitat” that contained “abundant hares.” Same basic reason us bipeds often prefer McDonalds for OUR winter habitat — an “abundance” of cheap, easy to get meat, and in an area with historically low predation or competition (probably due to the abundance factor). And protected from the wind.
I like the part where people start speaking for the lynx: “I judge this habitat “good,” nay, it is more than that — it is “critical” — and I prefer it above others.” How do these people learn these things? Movement activated videos of lynx first entering an area, and responding with “thumbs up” and “high fives” when they see the abundant hares waiting for them? Something to do with microwaves?
It’s hard to believe that our nation’s laws and resource management policies are based on this type of “science,” but they are. Another reason “peers” like to remain anonymous while okaying their buddy’s research.