Judge Halts Fleecer Mtn Logging Project: USFS shortcut lynx, griz analysis, must also supplement EA with “full and fair discussion of the impact that temporary roads will have on elk”

According to this news article [emphasis added]:

A judge on Friday blocked [the Fleecer Mountain] logging project in Beaverhead-Deerlodge National Forest and ordered two federal agencies to take another look at the effects on lynx, grizzly bears and elk that may be in the area….

U.S. District Judge Dana Christensen wrote in his ruling the U.S. Fish and Wildlife Service and the Forest Service used a procedural shortcut to conclude lynx habitat would not be harmed by the project.

The federal Endangered Species Act requires the government to ensure no action will harm the existence of any endangered or threatened species, or destroy or harm their habitat. But the procedure was bypassed when the Fish and Wildlife Service wrote that threatened lynx did not “occupy” the southwestern Montana forest, even though there is some evidence lynx may be present, Christensen wrote.

As a result, the Forest Service did not conduct a biological assessment on the effects of the logging project on habitat that lynx may pass through.

Christensen ordered the agencies to conduct a new analysis using the proper standard under the federal Endangered Species Act.

The Forest Service also must conduct a new biological assessment on the project’s effect on threatened grizzly bears after Christensen ruled the original assessment was “arbitrary and capricious.”

The agency also must study the effects on elk of building temporary roads for the project, Christensen said.

Here are some highlights from U.S. District Judge Dana Christensen’s order:

Summary judgment is also granted in favor of Plaintiffs on their claims under the ESA. The Court concludes that the case must be remanded to the Wildlife Service to consider whether lynx “may be present” in the Forest because the Wildlife Service improperly applied a stricter standard to that inquiry. Until the Wildlife Service conducts its analysis under the proper standard and the parties complete any consultation that might become necessary, the Project must be enjoined.

The Forest Service’s biological assessment of whether the Project “may affect” grizzly bears was also arbitrary and capricious, and a new biological assessment must be prepared.

Summary judgment is granted in favor of Plaintiffs on their claim that the Forest Plan’s and Project’s discussions of elk violate NEPA. Although the Forest Service did not act arbitrarily or capriciously in setting road density levels for the Forest, analyzing road density at the landscape and hunting unit scales, or defining secure areas for elk, the Court nevertheless finds that the Forest Service must supplement its EIS for the Forest Plan to explain or support, if possible, its decision to exclude temporary roads from the road density objectives and to correct the record to show that permitted and administrative roads are included in the objectives.

The Project EA must also be supplemented with a full and fair discussion of the impact that temporary roads will have on elk during the Project’s lifetime, an important aspect of the problem given the already high road density levels in the Project area.

I want to delve more into the specifics of Judge Christensen’s order, especially the part about impacts of temporary roads on elk, but first, careful readers of this blog may remember that we’ve had some discussion and debate about this Fleecer Mountain logging project in the past.

For example, who could forgot the almost joy-like, childish mocking of the Alliance for the Wild Rockies and Native Ecosystem Council from the editorial board of the Montana Standard newspaper in their March 4, 2012 editorial ironically titled, Abuse of enviro laws may doom them?

Last year the Montana Standard editorial board wrote:

Who knew that Fleecer Mountain had such a thriving population of grizzly bears? And who would have thought that taking out some dead and dying trees, working on stream restoration and improving sagebrush range lands might lead to the extinction of lynx?

Environmental groups do….What a surprise….

Listening to their rhetoric, one might get the impression that government employees are bent on wiping out native species and butchering forests into moonscapes. The Fleecer project is a prime example. Forest Service scientists carefully planned the project to deal with numerous dead and dying trees in the area and supply some logs to the timber industry. They looked at conifer encroachment into native grasslands and the decline of aspen groves. And they considered the health of the streams and ways to improve the movement of fish.

But Mike Garrity, executive director of the Alliance for the Wild Rockies, saw the Forest Service’s real, sinister motives…and said the lawsuit was necessary “for the sake of the elk, grizzly bears, lynx and a myriad of other old growth dependent species.”

There have never been grizzlies spotted there. And Forest Service personnel say their analysis found the lodge pole pine areas where the logging is proposed is not prime lynx habitat.

Well, how silly, petty and just plain wrong does the Montana Standard’s editorial board look now, after reading U.S. District Judge Dana Christensen’s order enjoining the Fleecer Mountain timber sale because of violations of NEPA and the ESA?  Turns out the Forest Service didn’t “carefully plan” the Fleecer Mountain logging project like the Montana Standard editors would like us all to believe.  Besides, on March 7, 2012 AWR director Michael Garrity, already set the Montana Standard editorial board straight in an oped titled, ironically and correctly enough, Fleecer timber cut illegal, says group.  Garrity wrote:
The Montana Standard editorial on March 4 criticized the Alliance for the Wild Rockies for filing lawsuits to stop the Fleecer timber sale….While claiming the Alliance is “abusing environmental laws,” what the editorial didn’t mention is that we win about 87 percent of those suits.Simply put, unless the Forest Service is found to be breaking the law, we don’t win….When the Alliance was informed of the new [Fleecer Mountain logging] project, we toured the site with the forest supervisor and two district rangers, told them our concerns, and submitted detailed comments in writing.  The previous two forest supervisors worked with us on the Grasshopper, Anaconda Job Corps, Beaverhead-Deerlodge roadside salvage and the Georgetown Lake timber sales, for which they should be commended. But this time around, the agency decided to try and make giant, illegal clearcuts in prime elk habitat instead of following their own rules and laws.

Contrary to media representations, our country’s environmental laws aren’t that strict. They don’t prohibit logging on our National Forests, but do require that the Forest Service must ensure that there will be viable populations of native species after logging — and clearcuts simply do not make good wildlife habitat for elk, grizzly bears and other old-growth dependent species.

We are a nation of laws and that means federal agencies, just like citizens, must follow the law. As before, the Forest Service will either pull this proposal or, if it loses in court, blame environmentalists for once again stopping clearcutting of elk winter range.

The Standard claims it was surprised to find there are grizzly bears around Butte. But in 2010, the Standard reported that a grizzly bear was killed near Elk Park and in 2005 a hunter killed a grizzly bear within the Mount Haggin Wildlife Management Area which adjoins the Fleecer timber sale and is within the wildlife security analysis area for the project.  If grizzlies are to be recovered and removed from the Endangered Species protections, it means their habitat must be taken into account in Forest Service timber sales….

Instead of attacking citizens for participating in the management of our public lands and “abusing” environmental laws, the Standard should ask the Forest Service and its allies, like the Montana Wilderness Association, why the agency has such a hard time following the laws that ensure Butte continues to be surrounded by beautiful national forests full of native wildlife for generations yet to come.

Let’s circle back to this issue of ‘temporary’ logging roads and Judge Christensen’s Order that:
The [Fleecer Mountain Logging] Project EA must also be supplemented with a full and fair discussion of the impact that temporary roads will have on elk during the Project’s lifetime, an important aspect of the problem given the already high road density levels in the Project area.

As a backcountry elk hunter, I’m certainly keenly aware that great elk habitat and logging roads mix about as well as oil and water.  And as an elk hunter, I’m also vigilant about protecting great elk habitat and ensuring that existing elk habitat (and habitat for all wildlife species) on public land isn’t compromised by misguided “management” schemes.

As a forest activist I’ve monitored many logging projects, post-logging, and have documented evidence that even these supposedly “temporary” logging roads have impacts that last long after the logging is finished and the temporary road is supposedly “restored.”

For example, we’ve noticed that just like regular logging roads, these temporary logging roads become vectors for the spread of noxious and invasive weed species, such as knapweed and cheatgrass.  So too, these “temporary” logging roads are often quickly found by people who have less than ideal environmental ethics who use these temporary logging roads for illegal dumping and illegal ATV and motorcycle joy-riding.  It’s also worth pointing out that we’ve witnessed all of the same weed-spreading and illegal dumping and ATV use as we’ve seen with temporary logging roads on some logging “skid trails” as well.

Unfortunately, too many of these so-called “Sportsmen’s” groups have fallen hook, line and sinker for the timber industry’s rhetoric that “temporary” logging roads are a great thing and that there are no negative consequences what-so-ever to building a bunch of “temporary” logging roads in many of our already over-roaded public National Forests.

For example, “Sportsmen’s” groups such as Montana Wildlife Federation, National Wildlife Federation, Montana Trout Unlimited (as well as conservation groups like the Montana Wilderness Association) are supporting Senator Tester’s mandated logging bill, the Forest Jobs and Recreation Act.  One key selling point these well-funded groups use is that the bill would largely prohibit new, permanent logging road construction, instead relying on the construction of an unlimited number of “temporary” logging roads, which these groups seem to think have zero impact on the environment.

Just like Judge Christensen ordered the Forest Service to have a “full and fair discussion of the impact that temporary roads will have on elk” I’d like to request that these “Sportsmen’s” groups be more honest about the documented negative impacts of even “temporary” logging roads have on elk, other wildlife and the over-all health of our forests and watersheds. Sportsmen’s groups should encourage, not discourage, a “full and fair discussion of the impact that temporary roads will have on elk” and other wildlife species, not simply pick and choose when they will stand up based on what appears to be game of political paddy-cake, in which politicians with a “D” after their name are lionized, while any politician with an “R” after their name is demonized.

Finally, back in March 2009 ecologist and author George Wuerthner had this piecePermanent Damage from Temporary Logging Roads, over at Counterpunch.  Since Wuerthner’s article contains some excellent additional information and thoughts about the very real ecological impacts of “temporary” logging roads I’ll post it here in its entirety.  Wuerthner’s piece ends with some very good, and very reasonable, questions anyone supporting the construction of “temporary” logging roads should ask themselves before getting the rest of us to jump on the “temporary” road bandwagon.

The latest attempt by the Forest Service to make logging palatable is “temporary” roads.  A lot of research has found that logging roads are among the biggest impacts to forest ecosystems. (For a good review of road impacts see Trombulak and Frissell.) The Forest Service has at least 400,000 miles of roads on the lands it administers and these roads are a major environmental collateral impact associated with logging and other resource exploitation.Even the Forest Service has had to admit that logging roads have many unacceptable impacts to the forest ecosystem, so they have to come up with a new term and idea to make logging acceptable—temporary roads.  Temporary roads only have temporary impacts—or so we are led to believe.  And some conservationists have jumped on the “temporary” road band wagon just as some readers of the National Inquirer are quick to accept the hype of the latest fad promoting say the low fat ice cream diet.

Temporary roads are like low fat ice cream, they seem to taste good, but as any nutritionist can tell you, you’re are infinitely better off if you don’t consume a lot of ice cream at all—low fat or otherwise. The same is true for roads. Temporary roads are only slightly better than a regular road, and no one should be fooled into thinking they somehow eliminate the negative impacts associated with roads just because they are “temporary.

The problem is that temporary roads have most of the same environmental impacts as regular roads.  Roads compact soil.  Even three trips by logging equipment over soil can result in a significant reduction in water infiltration.  Roads, by slicing across slopes, alter downward flow of subsurface and surface water, often concentrating it on the compacted road surface, thus increasing erosive power.  Roads are a chronic source of sedimentation, and a major impact on aquatic ecosystems.Roads fragment wildlife habitat.  Roads are avoided by some sensitive wildlife species or used as a convenient travel corridor by other species. Often roads provide access for “weedy” ones that negatively impact other species—such as creating access for edge birds to invade and attack interior forest species.Roads change air flow which can affect fire spread and even the distribution of plants responding to micro-climate changes. Roads are the major vector for weeds and disease. Weeds and disease are one of the most pernicious and problematic impacts associated with roads. In the long term, the introduction of weeds and disease may do more damage to forests than the logging. For instance, a root fungus that is introduced by logging equipment along logging roads is decimating Port Orford Cedar stands in Oregon and California where the tree grows.Road beds provide access for hikers and hunters—giving more potential disturbance to wildlife. And ORVers typically find ways to get around gates and other obstacles to use the roads as roads. In short, a temporary road is mostly a mirage. It is essentially a new logging road.

Now some will argue that temporary roads are better than regular roads, especially if they are “reclaimed.” If a road is fully reclaimed, there is something to this argument. The problem is that there is no legal definition of what constitutes “reclaimed” and most roads are not fully reclaimed, in part, because it is very difficult and expensive to do reclamation.To fully reclaim a road is more than putting up a gate to block vehicle travel.  It requires ripping up the road bed to remove the compacted soil layers.  The side slope soil has to be put back on the site, and reshaped so sub surface and surface water flow is restored.  Culverts need to be removed, and stream channels fully restructured and reconstituted.  Vegetation needs to be planted—and grass seed is not enough—especially if the area once supported forest.  And logs, rocks, and other natural structures need to be put back on the slope.  And even if all these things are done, an old road does not magically disappear overnight.  It continues to have impacts for years until the vegetation has grown sufficiently to more or less emulate the pre-road condition.

I’ve seen fully reclaimed roads in Redwood National Park and a few other places, but it’s is extremely rare. And the expense often numbers in the hundreds of thousands of dollars per mile.

By contrast, I’ve seen a lot more minimally reclaimed roads.  I’ve been on forest service lands where a “temporary” road is just a road that the FS didn’t put on its travel maps as a legal road.  It was still there on the ground, but since it was not included in the official travel plan as a road, as far as the FS was concerned, the road did not exist any longer.

The FS usually does go a step further, however, to close temporary roads.  Typically the agency will put up a gate. Nevertheless, most gates, unless built extremely well, do not keep ORVers from using the road on the other side and sometimes even the agency continues to use the road for “administrative purposes.”

While such “temporary” roads may reduce road impacts somewhat, they are nowhere as good as no road at all.  And this is the rub.  I’ve had environmentalists telling me that I don’t have to worry about “new” logging roads because they are all going to be “temporary”.  For example, that is one of the claims of the Beaverhead Deerlodge Partnership proponents.  Don’t’ worry, all logging will be from existing roads and any new roads will be “temporary” and must be “removed” in five years.

For one thing, such temporary roads will effectively be a road for five years at the least, and may exist far longer as a marginally reclaimed road, especially in the arid environment found in much of Southwest Montana.  Such “temporary” roads will exhibit nearly all the problems of a regular road except that they may not be used for public vehicle travel.

So when you hear someone supporting logging because it won’t have the impacts of roads since all new roads will be “temporary” ask some hard questions about the proposal.  How long will the “temporary” road be in use?  Will it be closed to all vehicle traffic forever or will it be used again for logging in 10 or 20 years?  Will it be reclaimed?  What does reclamation mean?  Will the road bed be ripped up, slopes restored, stream channels reconstructed, and original vegetation restored?  If not, than you will have a road—and a road is still a road whether it is called “temporary” or otherwise.  Temporary roads may be better than a permanent addition to the road network, but it should never be thought of as a zero impact. Low fat ice cream is still ice cream—and you’re not likely to lose weight eating a lot of it.  Temporary roads are still roads, and typically have all of the major impacts associated with any road.

11 thoughts on “Judge Halts Fleecer Mtn Logging Project: USFS shortcut lynx, griz analysis, must also supplement EA with “full and fair discussion of the impact that temporary roads will have on elk””

  1. Thanks, Matthew. I get tired of hearing complaints about “radical environmental groups” blocking progress of “forest health” projects with “frivolous lawsuits.” Your commentary is a great answer. Congress has already chipped away at NEPA with new CEs and the Healthy Forests Restoration Act. Conservation groups and the courts are the backstop.

  2. All that text and little mention of the many mitigation methods, at all. Most temporary roads are just short spurs that access an environmentally-friendly landing site (instead of having to excavate more soil… remember, helicopter landings need to be large enough to be safe). Cable settings need to be on the edge of the steep slope but, existing permanent roads are usually away from the edge. Tractor landings need to accommodate the massive amounts of limbs and slash, for burning. If landings are restricted to existing roads, the greater impacts of landing building will come into play. I have no problem with building new permanent roads, as long as they serve the land well, and don’t cause excessive damage. Of course, to some, ANY new road has excessive damages.

    Also, I DO enjoy that vegan ice cream substitute which isn’t nearly as bad for me as regular ice cream. *smirk*

  3. Yes….this a great VICYORY…for the cause of “additional useless analysis.” The USFS will now upgrade the EA to an EIS, that will be litigated in a year, and it will take a judge another year to hear it.

    In a soon to be published story I wrote for RANGE magazine, I used this timber sale to do an “apples to apples” comparison of this EA to one in “non-litigated” Colorado. From memory…(since I’m illegally surfing the internet at work)…the Fleecer Mountains EA “commercially” logs 1700 acres and the EA ran to 350 pages, while the “Lower Blue EA” in Colorado logs 4000 acres and the EA ran to 78 pages. They both salvage log MPB killed lodgepole, they both have lynx, they both have Elk, there isn’t a grizzly bear within 100 miles of Fleecer Mountains. It doesn’t have crap to do with “following the law,” or else the USFS in Colorado must be breaking the law.

    Bob…maybe you can tell us why Colorado Wild and the Biodiversity Conservation Allliance has stopped litigation in Colorado and the Medicine Bow in Wyoming? There hasn’t been an appeal or objection filed in Colorado for 3 or 4 years.

    Frankly, if I was the Montana Wood Products Association, or the AFRC, I would start litigating the hell out of every below cost WUI timber sale around Boulder Colorado.

    Time for the “wolf Rider.” I gots a feeling the Montana Standard will soon endorse it.

    • Hey Derek, how’s that Fleecer Mountain crow you’re eating? Taste great? Or less filling? I’m sure your Range Mag piece will be an instant classic.

      And for Pete’s sake, Derek, stop making false statements about where grizzly bears are in Montana. I’ve pointed your non-sense out before in this regard on this blog. And just above, Mike Garrity points out:

      “The Standard claims it was surprised to find there are grizzly bears around Butte. But in 2010, the Standard reported that a grizzly bear was killed near Elk Park and in 2005 a hunter killed a grizzly bear within the Mount Haggin Wildlife Management Area which adjoins the Fleecer timber sale and is within the wildlife security analysis area for the project.”

      P.S. Of course, I’d love to post the official link from the Beaverhead-Deerlodge National Forest website to this Fleecer Mtn project.

      But when you go to the BHDL NF’s website and search under “Projects” at this very user-friendly link:

      …..You see nothing about the Fleecer Mtn project. And when you search the BHDL NF archieves under either name of the project or status of the project you get redirected to the Salmon-Challis National Forest (in Idaho) website. Good grief…..

      • Matt: This is one thing we are in total agreement on — the USFS websites are, for the most part, a joke. About ten years ago I stopped blaming incompetence and USFS hiring practices for this costly waste of taxpayer funds when I realized that most of the other government agencies were doing the same thing — pretending to use websites for public education and informational purposes while actually creating obfuscation and misdirection and (weirdly!) self-promotional efforts instead.

        This can no longer be considered an “accident” or agency-wide incompetence. Someone wants it this way, or it would have been fixed years ago.

        There is no more excuse for inept website design and maintenance in this day and time than for the millions of acres of dead rotting forests we’ve been given in the past 25 years. Who’s responsible for this mess and who’s going to clean it up? “How to do it” has already been covered many times by many experts on this blog.

    • Derek, you might want to call Range Mag and have them stop the presses….because if you are repeating much of what you’ve written above about the Fleecer Mtn logging project and grizzly bears you’re a few hundred miles from the truth.

      Maybe you should do what I just did, Derek, and that’s call a NEPA officer on the Beaverhead-Deerlodge National Forest. We just spoke for over an hour and, boy o boy, did I get some good information about grizzly bears on the BHDL NF and why the Forest Service website doesn’t work real well.

      First, I’m told that the Fleecer Mountain EA will be placed back on the BHDL NF website. Apparently when the FS created their new, fancy website the “default” was for all projects to be removed from the FS website automatically after 6 months. That certainly makes little sense. That’s the reason why we can’t find any Fleecer Mtn logging project info on the website, but it should be up later today or tomorrow. Of course, even that “default” setting doesn’t explain why a search for a project by “name” or “status” on the BHDL NF re-directs you to the Salmon-Challis NF in Idaho….but I’ll take little public info victories at this point.

      RE: Grizzly Bears and the Fleecer Mtn Logging Project. I was told by the NEPA officer that the Fleecer EA, in fact, does mention the fact that grizzly bears have been spotted in the general area around the Fleecer Mtn logging project.

      There was a griz caught on a MT FWP webcam on Electric Peak east of Deerlodge. There was a griz bear in the John Long Mountains. There was a mama griz and two cubs spotted in the Anaconda-Pintler Wilderness. There was a dead griz along the Miller Creek Rd, which runs just west of the Fleecer Mtn project. The NEPA officer told me that all of this info about griz was in the Fleecer Mtn EA. Funny, how in an “apples to apples” comparison of EA’s that somehow you missed this fact, Derek.

      In fact, just so happens that the Beaverhead-Deerlodge NF issued a re-consultation with the USFWS for a grizzly bear biological opinion because of all the new grizzly bear sightings that have taken place on the BHDL NF, including in the general area around the Fleecer Mountain project. I’m told that the BHDL NF also asked for a biological opinion from the USFWS RE: grizzly bears for the BHDL NF forest plan revision, since griz are now being spotted throughout so much of the BHDL NF. In fact, I’m told that B.O. from USFWS arrived in the BHDL NF office last night.

      Because of all of this real information about griz bears (not some rumors or proclamations from some guy sitting over in Rapid City, SD) the BHDL NF is issuing an entire, forest-wide food storage order RE: Griz bears.

      So, you see, Derek, when you make statements such as “there isn’t a grizzly bear within 100 miles of Fleecer Mountains. It doesn’t have crap to do with “following the law,” or else the USFS in Colorado must be breaking the law”….You end up looking like you don’t know what you’re talking about. I also am pretty sure, Derek, that it is about “following the law” or else a U.S. Federal District Court judge wouldn’t have issued the order, enjoining the Fleecer logging project, like he did last week. Thanks.

  4. Matt: That is not a “Default” setting. That is a designed decision to limit access to public information. It is not stupid or lazy or incompetent, it is intentional. Somebody designed that default and they have an excuse for it. Same with the idiotic URL. No accountability and designed secrecy. The New USFS.

    And no, I’m not a conspiracy nut. I design websites for schoolkids and have done so for many years. Someone made the decision to install the 6-month filter on USFS websites, and someone made the decision to install incomprehensible URLs into USFS address fields. Why is that? And who made those decisions? Or have they just become part of the New USFS tradition?

    • Bob, you certainly won’t get an argument from me on these general points, many of which I agree with entirely. Part of it that’s weird to me is that it’s not like it costs the FS, or taxpayers, anymore money or time to just keep all project files on-line forever, or at least as long as there is an internet.

      • There is no excuse. A website I built with Siletz second graders more than 15 years ago has been continuously online ever since — same with every other website we have built with students before and since. All funded by a tiny 501 c(3) nonprofit in Philomath, Oregon.

        Here is the URL: http://www.orww.org/PEAS/SZ-Day/SalmonCycle/salmon_cycle.html

        It worked in 1998, and it still works today. And you can (pretty much) read where you’re going. At some point there has to be a reason and accountability for all this USFS inability: there really is no excuse.

    • After suffering through the Forest Service’s computing legacy, I’d have to say that yes, it IS a tradition! Data General, the End User Support Center (aka EUSC aka “You Suck”), DOS data recorders, and 256K RAM Windows machines are some of their more memorable computer decisions. You should see how many employees get locked out of their accounts, due to security issues. You should see a 55+ GS-12 trying to fix his computer through tech support over the phone.

  5. Below, in all its non-user friendly glory (and after being purged from the USFS website because 6 months time had passed) is the link to the Fleecer Mtn EA:


    In the EA, anyone can read the discussion about the numerous documented grizzly bear sightings within the general vicinity of the Fleecer Mtn project area, many of those confirmed griz sightings are within 20 to 30 miles of the project area. Also, what lies within approximately 30 air miles from the Fleecer Mtn project area is the town of Twin Bridges, Montana….which just so happens to be the driest place in the entire state of Montana with an average annual precipitation of 9.92 inches.

    As a Forest Service employee on the Beaverhead-Deerlodge NF once told me, “We grow great elk habitat and wildlife habitat on the Beaverhead-Deerlodge, but not great trees. In this ecosystem, sagebrush is considered a canopy species.”

    Yep, the high, dry and wide Beaverhead-Deerlodge National Forest sure seems like a great spot to mandate a large increase in the amount of commercial logging, right Senator Tester?


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