Excerpts from Judge Malloy’s Decision on Colt Summit

Guest post by Megan Birzell, The Wilderness Society.

A little more than a month after a leading opponent of the Colt-Summit forest restoration project on the Seeley Lake Ranger District publicly compared Forest Service employees and mill workers to Nazis – and the diverse group of Montanans working to promote forest restoration and much-needed jobs to Nazi sympathizers – Federal District Court Judge Donald Molloy has issued a decision that utterly dismantles the critics’ claims that Colt-Summit is harmful to fish and wildlife including bull trout, lynx and grizzly bears.

The Colt-Summit project, developed by the Forest Service in collaboration with the Lolo Restoration Committee of the Montana Forest Restoration Committee and funded, in part, through the Southwestern Crown of the Continent Collaborative (www.swcrown.org) is a proposal that will decommission 28 miles of roads, thin and burn 2,038 acres of forest suffering from a century of fire suppression, and re-route four miles of road away from a bull trout spawning stream. These activities will improve lynx, grizzly bear, and bull trout habitat, reduce the risk of catastrophic wildfire, and help restore more natural fire regimes to the area.

The project was appealed and then challenged in court last year by the Alliance for the Wild Rockies and a few other groups. The initial appeal of the project included 152 allegations, all of which were rejected. The subsequent lawsuit included 12 allegations, 11 of which were rejected by Judge Molloy in his 46-page decision issued on July 11. The one claim that was upheld by Judge Molloy will likely result in the Forest Service preparing a brief supplement to their extensive analysis, seeking public comment and then moving forward with the project.

Following months of inflammatory rhetoric, name-calling and inaccurate statements by opponents of collaborative forest restoration and the Colt-Summit project, a review of Judge Molloy’s decision is timely, relevant, and highly instructive. Excerpts from that ruling (attached) include the following.

On the National Forest Management Act, National Environmental Policy Act and Endangered Species Act:

“The plaintiffs suggest that the Forest Service’s analysis for the Colt summit Project violates NFMA, NEPA and ESA in several respects. By and large, though, the analysis is adequate and meets the requirements of the various acts.”

On lynx, streams and wetlands:

“The plaintiffs argue that the Project violates three Forest Service Standards—two related to lynx and one related to streamside and wetland buffers. The record shows the Project violates none of the lynx or streamside and wetland standards.”

On lynx and snowshoe hare:

“[The Forest Service] noted in addition that the Project will actually improve snowshoe hare and lynx habitat. The plaintiffs do not point to any contrary evidence. There is no record evidence that the Project will ‘reduce snowshoe hare habitat.’”

On Forest Service rules regarding vegetation management:

“The plaintiffs fail to meet their burden of proof…They have not shown the Forest Service made a ‘clear error of judgment…’”

On concerns regarding lynx habitat connectivity:

None of these arguments is viable in my view. The Forest Service did consider how the Project would impact lynx travel.”

“A more fundamental problem with the plaintiffs first argument is that the Project does not appear to be in a linkage area. The plaintiffs rely on a large-scale map from the Northern Rockies Lynx Management FEIS to show that the Project is within a linkage area…The map does not lend itself to a precise determination of where the linkage areas are located. As the Service explained, it is only a beginning point and is subject to refinement with additional data.”

“The most recent data from Dr. Squires’ research—which was relied on in the EA—show that lynx are not using the Project Area as a travel corridor…The most recent research shows…there are no linkage areas in the Project Area.”

“The plaintiffs second argument—that the Service applied the standard incorrectly, is also lacking.”

On wetlands and streamside buffer issues:

“Here, the plaintiffs argue that the Forest Service shrank buffers in the Project Area without first conducting the requisite analysis. They also claim that the Service plans to log timber directly within wetlands, in violation of the INFISH standards. The allegations are incorrect.”

“The plaintiffs similarly object that the Project violates INFISH because the record has no site-specific ‘analysis, data, or rationale for shrinking the INFISH buffers.’ Their argument is futile because the Forest Service explained why it shrank the buffers.”

“There is no showing how the Project, as amended in the EA Addendum, violates the INFISH standards for wetlands.”

“The plaintiffs assert the Forest Service plans to cut trees and conduct prescribed burns directly within wetlands…Yet, the plaintiffs claim, the Forest Service did not consider the Project’s impact on wetlands in the FONSI. They write that the FONSI ‘neglects to mention wetlands at all.’ A closer reading of the FONSI shows: ‘The modified proposed action will not impact…wetlands…’ As set forth in its briefs, the Service is not going to conduct any cutting or burning in wetlands. Furthermore, buffers will be created around the wetlands.”

On the Endangered Species Act, lynx, and grizzlies:

“The plaintiffs next insist the Forest Service violated Section 7(a)(2) of the Endangered Species Act by inadequately analyzing the Project’s effects on lynx and grizzlies and by failing to include the Summit Salvage Project Area in its analysis. This concern also misses the mark.”

“Here the plaintiffs reason the Forest Service failed to comply with ESA Sec. 7(a)(2) because it did not analyze whether the Colt-Summit Project would adversely modify lynx critical habitat The assertion is belied by the record. The Forest Service went beyond its obligations under ESA Sec. 7(a)(2) in drafting both a biological assessment that addresses lynx and lynx critical habitat and in engaging in informal consultation with the Fish and Wildlife Service.”

“Both the Forest Service and the Fish and Wildlife Service found that the Project ‘is not likely to adversely affect’ lynx or lynx critical habitat.”

“The plaintiffs question at length the proposition that the Forest Service can use Forest Plan standards—such as the lynx standards—as a surrogate for the requirements under ESA Sec. 7(a)(2). While interesting, the thesis misses the point.”

“Neither the Forest Service nor the Fish and Wildlife Service ignored the effects that the Project might have on lynx or lynx critical habitat. There has been no showing of convincing argument or evidence that the agencies’ analysis is flawed.”

“The Forest Service did not explain why it included the Summit Salvage area from its analysis. But it did not have to. It does not need to explain why it excludes every imaginable area subject to possible analysis. It only needs to explain why it selected the units of analysis that it chose. In this case it did so with respect to both lynx and grizzlies.”

“The plaintiffs argue, only in passing, that the Project will have the potential to adversely affect grizzly bears. They make no specific argument as to how the Forest Service’s analysis about grizzlies somehow violates ESA Sec. 7(a)(2). Instead, they make sparse, blanket allegations that grizzly bears will be harmed. The record is binding and it shows the Forest Service’s analysis of grizzly bear impact does not violate ESA Sec. 7(a)(2).”

“The plaintiffs argue that the Forest Service did not adequately consider the impact of the Project on lynx critical habitat or the lynxes’ use of the Project Area as a corridor for travel between the Bob Marshall and Mission Mountains…the Forest Service did, in fact, discuss the impacts that the Project would have on lynx crucial habitat. The Service offered a long discussion of the impacts but it concluded that the Project will not have any significant impacts…The plaintiffs do not offer any reasoned explanation for why the Forest Service’s analysis is inadequate and they have not explained how the project would have a ‘significant effect’ on the lynx critical habitat.”

“Critical habitat aside, the plaintiffs maintain that lynx use the Project Area as a travel corridor and that the Forest Service did not consider the impacts that the Project would have on that corridor….The Forest Service, however, argues that the Project Area is not a corridor for lynx travel and that there is therefore no need to consider how the Project will impact lynx travel. The Forest Service has the better argument.”

“The Forest Service relies on GPS tracking data from Dr. Squires which shows detailed information about how lynx use the area. Dr. Squires’ data tends to show that lynx do not use the Project Area as a corridor to travel between the Bob Marshall and Mission Mountains. What the data tends to show is that lynx cross Highway 83 south of the Project Area. This means the Project Area is probably not an ‘ecologically critical area’ based on its use by the lynx as a linkage corridor. Moreover, the Forest Service explained in the EA why the Project would not have any impact on corridors or linkages for grizzly bears, gray wolves, and lynx.”

“As discussed above, the Service adequately considered the impacts on lynx, lynx habitat and grizzlies.”

On the National Environmental Policy Act:

“The plaintiffs next argue the Forest Service violated in several respects…all but one of these arguments fail.”

“Here, the plaintiffs claim that the Forest Service predetermined that the EA would result in a FONSI…In this case, there was no predetermination to issue a FONSI.”

On bull trout:

“As to bull trout, the only part of the project that will have an impact is culvert removal and decommissioning of Road 646. Both the Forest Service and the Fish and Wildlife Service recognize that the culvert removal and road decommissioning will have a short-term impact on bull trout. But, in its Biological Opinion, the Fish and Wildlife Service explained that those actions will ‘reduce long-term sediment delivery by 77 percent’ and ‘improve access to spawning and rearing habitat and thermal refugia.’ As a result, the Fish and Wildlife Service determined the actions will help ‘restore’ the Upper Clearwater sub-watershed. The plaintiffs have apparently abandoned their argument regarding bull trout as they did not offer any response to the Forest Service’s discussion of bull trout and the Biological Opinion in their reply brief.”

“For all the reasons stated, the Forest Service adequately considered the Project’s impacts on listed species and critical habitat.”

17 thoughts on “Excerpts from Judge Malloy’s Decision on Colt Summit”

  1. You know, when I think of the costs on the government side, I wonder if there could be a pre-screening for obviously incorrect claims (such as “the FS did not address”.. when a word search would show they did). Maybe law and natural resource students could serve on this panel as volunteers?

    Then all the lawyers and judges could focus on the real issues at hand, instead of wading through what looks like everything that sounds mildly plausible (iIf you had never read the document.)

  2. Actually, Sharon, if you can keep getting the courts stocked with politically right-wing, anti-environmental judges like this current sage, and continue to elect hick legislatures to enact measures that gut any and all environmental protections as has been done in Idaho and Montana, you really wouldn’t need such panels. Then the flagrant dishonesty and chicanery of the Lumber Service could never be appealed at all and the remaining 2% of Old Growth could be cut down and milled without inconvenience to the remnant butt of the welfare-addicted Timber Beasts, who can’t make it without government subsidization.

    • Paul: I see why you don’t sign your full name. Do you actually believe any of this stuff? Where are you getting your “facts” (I’m seriously interested in an answer to this question)? You do realize this is mean-spirited tripe, don’t you, and has nothing to do with a meaningful discussion of this post?

      I’m guessing you don’t vote for “hick legislatures” and think they are elected by a majority of . . . (who WOULD vote for these guys?). I do agree with your assessment of Malloy as “anti-environmental,” but I’m guessing we use different definitions for this term. Your “2%” figure is just plain stupid, however. I’d like to see a citation on that figure, “Paul,” assuming you just didn’t make it up to add a little quantifiable “credibility” to your assertions.

      • Yep, there is so little old growth left but, it seems so many projects have old growth issues. It really isn’t about old growth anyway, as small old trees are cut all the time! Young trees can reach huge sizes, under good conditions. For nearly 20 years now, Sierra Nevada National Forests hasn’t cut big trees, or used clearcutting, VOLUNTARILY!

      • My name is Edwards, Bob. Paul Edwards. I wouldn’t want that concealed from a vacuous blowhard like yourself. It’s always a pleasure to draw your kind of ill-informed, poorly educated flamethrowers out of their ignorant burrows, if for no other reason that to allow them to embarrass themselves publicly with their astonishing topical illiteracy.

        To it then…

        Fact 1: The American judiciary, from the Supreme Court down is the most shamelessly biased set of reactionary ideologues since the glory days of Harding and Hoover. The Ninth Circuit is the single exception at the appeals level. Check the record, if you know how to do that, and see by whom the vast majority was appointed. The fact that you “agree” with me on Molloy is almost enough to make me alter my opinion, Bob.

        Fact 2: The hick–and I use the word advisedly–legislatures of both Idaho and Montana have gutted all the most meaningful laws mandating environmental protection that were on the books twenty years ago. If you hadn’t been in a coma or didn’t have your head deeply imbedded where no sun can enter you would know this, Bob.

        Fact 3: If you knew anything at all about the history of industrial logging in America from the earkt White Pine rape of New England, through the leveling of the hardwood forests of the North Central states by the Weyerhausers and Champions, to the butchery of the Pacific Northwest by the Maxxams and Plum Creeks, you would know that 2% or even less remains of the grand forests that once covered half the continent. Clearly, and embarrassingly for you, you don’t, Bob.

        Fact 4: If you had enough intellectual gumption to look into the history of the Lumber Service from its ravenous “get out the cut” era through to the pathetic shell it represents today you would know it is one of the most absurdly false and dishonest organizations ever to shame this country. It acts purely and entirely as a pimp for the rump timber industry that only stays alive on Federal welfare and below cost timber sales, stupidly and illegally proposed and planned.

        So much for your concern with facts, Bob. What I want to leave you with is a sense of the profound contempt in which I and anyone with genuine information and a sense of integrity about land use hold you and your ilk. People like you don’t give a damn for the natural world and its fragile beauty as is proven again and again by your attacks, feeble as they are, on those who would defend the last of it. You should know, too, that putting a word or phrase in quotation marks does not constitute an argument against them, Bob.

        You wouldn’t know tripe, Bob, if it was hung around your neck, which isn’t a bad notion, actually. What is truly mean-spirited as well as conceptual tripe is the effort to log off the last of an area that your ethically challenged, knuckle-dragger, welfare loggers have long since raped beyond repair or hope of recovery.

        We stopped this timber sale, Bob. And we’ll stop it again if we have to. Check my credibility on that.


        • Nice professioanl reply Paul. I stopped reading at the head where the don’t shine rhetoric. If you expect us to read, please keep it on the up-and-up next time…and solution orietned.

          • I counted 36 separate insults but, my sampling methodology might not meet scientific standards. I’ll bet it is still beyond the all time record for NCFP. AND, Paul gets triple word bonus for the R-word!!

            • If it is a record (and it’s the most personal insults in this blog that I can recall, too), then do I receive some kind of special recognition myself, say for an “assist,” or something like that?

              I’m guessing the “science” part of your count is some kind of cultural anthropology assessment as to what constitutes and “insult,” given the medium, context, and source of the term. Still, 36 does seem to be a reasonable estimate. If I were trying to pad my stats, I’d say 39, or maybe even 40 — but 36 is good.

        • Such a lovely insult-laden bundle of ire that blames all dead foresters for today’s forest problems. Actually, some people seem to want to PRESERVE these problems, instead of mitigating them.

          I consider what I do to be artistry, turning overstocked, mismanaged forests into “park-like”, beautiful, functioning ecosystems, which are resilient to drought, bark beetles and wildfires. Such forests become long term homes to goshawks and spotted owls, retaining the canopy closure needed for nesting sites.

          Paul’s spewage doesn’t help his cause. If that is his answer to our forest problems, it should be spread, far and wide.

          • Here’s Paul’s bottom line: “We stopped this timber sale, Bob. And we’ll stop it again if we have to. Check my credibility on that.”

            That part of his spiel probably is factual. And it is certainly an honest statement about his approach to forestry.

  3. Nice to see The Wilderness Society working so hard to keep an analogy alive through a liberal re-write of the original analogy.

    For the record, here is the actual word-for-word analogy that the Alliance for the Wild Rockies’ director made (Source: http://mtstandard.com/news/opinion/columnists/no-lawless-logging-in-montana/article_88fc04d2-a615-11e1-b74d-0019bb2963f4.html#ixzz1vsy4YQFv):

    “Unfortunately, a disturbing trend has appeared as big environmental groups such as the Montana Wilderness Association and the Wilderness Society increasingly take foundation money to “collaborate” with timber corporations. And much like the Vichy French helped the Nazis occupy France during World War II, these collaborators now have to face the harsh and shameful legacy of what they have done and continue to do.”

    While I wouldn’t have used this analogy myself as it may distract people from the real public lands and wildlife issues at hand, it’s important to remember something that we all likely learned in middle school: analogies are comparisons of parallel relationships, NOT comparisons of the dissimilar elements from which they are composed. Therefore, Garrity actually compared NO ONE to Nazis, despite The Wilderness Society’s liberal re-write of his analogy.

    It’s also worth pointing out that The Wilderness Society, Montana Wilderness Association, National Wildlife Federation or any of the other Colt Summit collaborators have publicly said anything (nada, zippo, etc) about the $30,000 statewide newspaper Ads from their “Timber Partners” callings for an end to the Forest Service public appeals process and exempting many Montana timber sales from judicial review.

    Also, below is a press release from today:


    CONTACT: Michael Garrity, Alliance for the Wild Rockies 406 459-5936

    Steve Kelly, Alliance for the Wild Rockies 406 886-2011


    Calling it “a great win for the lynx,” Mike Garrity, Executive Director of the Alliance for the Wild Rockies, announced that Federal District Judge Donald W. Molloy released his full order halting the Colt Summit Timber Sale on the Seeley Lake Ranger District on July 11th. “The court found that the US Forest Service is not protecting or restoring a very special and sensitive animal across its range in Montana,” Garrity said. “Consequently, Judge Molloy remanded the project to the Forest Service for further analysis since it must consider whether any site specific project does so before authorizing it.”

    The Federal Court first halted the project on June 20th and said the full order would follow.

    “Judge Molloy agreed with us that the Forest Service violated the National Environmental Policy Act by failing to analyze the project’s cumulative impacts on the lynx, which is listed as threatened under the Endangered Species Act,” Garrity explained. “Judge Molloy enjoined the timber sale and wrote in his order the ‘…Forest Service must prepare a supplemental EA that adequately addresses the cumulative effects for lynx, and if necessary after that review, an EIS.’”

    Friends of the Wild Swan, the Alliance for the Wild Rockies, Native Ecosystems Council, and Montana Ecosystems Defense Council brought the lawsuit against the Lolo National Forest and were represented by Matt Bishop of the Western Environmental Law Center. Importantly, the groups did not challenge the road reclamation work associated with the project, but focused on the effects to lynx.

    “We are pleased that the court recognized that the analysis of effects to lynx by the Forest Service was inadequate,” said Arlene Montgomery, Program Director for Friends of the Wild Swan. “We continue to believe this area is a critical wildlife linkage corridor between the Swan Range in the Bob Marshall Wilderness Area to the east and the Mission Mountains Wilderness Area to the west. It was designated as lynx critical habitat and deserves extra protection.”

    “This project was very controversial because it was supported by groups and individuals associated with the Southwest Crown of the Continent Collaborative,” Garrity explained. “But although the Montana Wilderness Association, the National Wildlife Federation and the Wilderness Society claimed they were heavily involved in the development of the project, the project records gave no indication of that. The project was proposed by the Forest Service and then supported by those groups — despite the fact that there were no discussions of the impacts to lynx between the collaborators and the Forest Service.”

    George Wuerthner, an independent ecologist, author, and photographer, recently flew over Colt Summit to photograph the area. “I was shocked to see how much of the Seeley-Swan Valley is already logged that is not readily visible from the main highway or even by driving back roads,” Wuerthner said. “The problem for the Forest Service is that they are up against limits. You can’t continue to cut more and more of the valley without jeopardizing other values. There is such a thing as cumulative impacts and death by a thousand cuts.”

    • so Matthew are you saying that Garrity “only” equated the Vichy French to TWS and the Nazis to the FS? Glad you cleared that up!

      Equating people to perpetrators of genocide and their associates for 600 acres of commercial thinning (or even 12) is simply unconscionable. IMHO.

      • Sharon, I already said it was an analogy I wouldn’t – and haven’t used. I also said that TWS, in the post above, provided a liberal re-write (or is that willful misinterpretation) of the analogy to suit their agenda here.

        I also provided a reminder that analogies are comparisons of parallel relationships, NOT comparisons of the dissimilar elements from which they are composed. So why you choose to use the word “equate” here twice is a mystery.

        The timber industry supporters of Colt Summit, and even Senator Tester and some of the conservationists “collaborators” repeatedly call us “extremists” in public, which I would put forth is the modern day, post-September 11th version of the word “Nazi.”

        Regardless…. there are more important issues to focus on. Thanks.

        • OK Matt,

          So what ARE the Issues, and what ARE the solutions?

          It seems that in this hotly contested case that “procedure” was the issue….

          We’ve seen that Malloy himself didn’t think that the project would harm lynx habitat/corridors…..he only said that the FS failed to follow the “procedures”.

          So if it’s a matter of correcting the document, in childlike fashion, a, b, c, d, e, f, g, h, r….oops you messed up, lets’ start over. That’s fixable. No big deal….the logging will eventually happen anyway, so what is the win for lynx in this case??? Is it just a publicity deal???

          I’m still at a loss as to the “issues”…is it cutting trees PERIOD? Because that’s the “take” a lot of us have with repeated appeals/litigation on every timber cutting project. It gets frustrating and, to be quite honest, the arguments start to lose credibility…why not these opponents help craft a better plan (dare I say collaborate) than to just continually throw rocks at the outcome?????

          I’ve spent all week dealing with lynx habitat “issues” as I finalize an EA that proposes to cut trees (beetle killed lodgepole)…I spent all day in another IDT meeting discussing OG “issues” for another EIS project that would seek to create underrepresented habitats and forest resilience (not resiliency, thanks Sharon).

          Project development (timber cutting) has become so focused on, and sensitized to (wildlife) habitat to the point of ridiculous….. we spend more time on “procedure” than design, and I can tell you that the projects were designed specifically to have “no effect” on T&E species.
          My highly criticized “buddies” in the timber industry would be the first to agree that logging can/should maintain all the good “stuff” as we go about developing projects, because they realize if we capitalize on the opportunity, they will benefit. It’s that simple. There is so much “need” and “opportunity” on NFS lands that they are happy to support environmentally sensitive projects that would defer harvest to accommodate potential habitat “issues”.

          So why is EVERY timber cutting project challenged through appeals and/or litigation??? What are the real “issues”??? I am genuinely curious…

          BTW, sorry I missed you for the beverage….

  4. So if they get shot down on 11 of 12 allegations, do they still collect 100% of their legal fees through the EAJA scam?


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