Supreme Court Hears Echo from Bitterroot Clearcut/Terracing Controversy

The visual legacy of the Bitterroot’s terracing in Robbins Gulch can still be seen by satellite (click on image for full-size).

Tomorrow the U.S. Supreme Court hears oral argument in a property rights dispute between the Forest Service, which owns an easement through plaintiffs’ private property. Although the legal issue (how should courts treat the Quiet Title Act’s statute-of-limitations?) is arcane, it is the historic nature of the easement that intrigues me.

In 1962, the predecessor property owners conveyed to the United States a 60-foot road easement that plaintiffs assert is “for timber harvest” purposes only. In 2006, the Forest Service allegedly expanded the easement to include general public access by posting a sign to that effect, leading to trespassing on plaintiffs’ private property, “theft of their personal property, people shooting at their houses, people hunting both on and off the easement, and people traveling at dangerous speeds on and around Robbins Gulch Road.”

However, it is the Forest Service’s timber harvest accessed by the Robbins Gulch Road that has the more storied history. This was one of the places where the Forest Service terraced hillsides to encourage regeneration following clearcut logging. This controversial practice helped catalyze passage of the National Forest Management Act, the echoes of which continue to reverberate.

13 thoughts on “Supreme Court Hears Echo from Bitterroot Clearcut/Terracing Controversy”

  1. Inquiring silvicultural minds want to know.. based on the photo… where is the regeneration? What is the history of these sites post-terracing? Anyone out there know?

    • The trees (100% ponderosa pine) were typically planted at 6-8 foot spacing and establishment was very successful. For reasons I don’t know (but can speculate), the BNF did not conduct any pre-commercial thinning on the terraces. They grew up dense with heavily interlocking crowns. The fires of 2000 wiped out some terraced plantations, including the one in the photo. Many of the remaining terraced plantations across the forest (mostly on the east and west forks) experienced heavy mortality in the mountain pine beetle epidemic of the early 2010’s. Some had upwards of 80% mortality. A huge investment of tax dollars that ultimately produced very little of value.

      For an excellent read, I suggest “The Bitterroot & Mr. Brandborg: Clearcutting and the Struggle for Sustatinable Forestry in the Northern Rockies” by Frederick Swanson. In my opinion it is a very thorough and unbiased history of the Bitterroot Controversy, and is couched really well in the overall history of the agency. Should be required reading for all public lands foresters.

      • Thanks, Anonymous, that’s what I wanted to know. Curious as to whether the terraced plantations had more mortality than non-terraced plantations and also more than natural stands of the same age? My first thought would be if they were not thinned they might have been under competitive stress.
        Were other plantations thinned? Did they also have much MPB mortality?

  2. When I was on assignment on the Bitterroot, I did get to see some of the clearcut jammer logging, on steep slopes. The jammer roads were placed so that logs could be winched up to the next higher road. That distance was at about 250 feet, depending on slope. While I didn’t see any slope failures, I’m sure that is always a hazard of that kind of ‘management’. I doubt anyone logs that way, anymore.

  3. Thanks for sharing these details Andy… And thanks for that PDF too. Terraforming whole mountains ranges into tree farms with no limits to road density is the worst idea that never seems to die, especially in coal country in Appalachia!

    I did a bunch of reading on this case this morning and as always it’s another Pacific Legal Foundation effort to turn public property even more private than before by arguing that government decisions regarding public access can always be changed in the future if a private property owner says so, regardless of those decisions no longer being up for legal challenges if they aren’t done so in a timely manner.

    And with the nature of the well-bribed con artists who took over the Supreme Court this case could have far reaching implications for many other cases. And for the most part all the news coverage of this case tries to convince everyone that we should be sympathetic to this land owner that never paid for the greater rights from his inholding that he’s now trying to gain via lawsuit.

    Sure will be fun when the young enviro green new deal party finally gets a super majority in congress and passes laws that nullify all inholdings on public lands and kicks out ever last one of these so called “property owners.”

    • Some private in-holdings pre-date establishment of the surrounding national forest. When the Johnnie-came-later U.S. Forest Service and a property owner agree to an easement for “x” use, should the Forest Service be allowed at a later date to unilaterally change “x” use to “a,b,c, and whatever uses we say”?

      Imagine, for example, a natural gas company acquires (by eminent domain c/o FERC) an easement across private property to build a pipeline. Twenty years later you buy the property. Ten years thereafter, the company welcomes 4X4 jeeps to use its pipeline easement for fun and games. When you, the new property owner, protest this public use of your property, the company argues that since pipelines are a public use, all public uses are allowed. Got a problem with that?

    • I don’t consider Neal Gorsuch nor Amy Barrett “well-bribed con artists”. I think you can disagree with people without questioning their motives or even that they are “bribed”.. really?

  4. The forest service has repeatedly created similar backlash by pushing such heavy handed practices. As a new zone fisheries bio on the bitterroot in 1976 the foresters were seeking my endorsement of such practices that started by clear cutting hot dry slopes necessitating terracing to get regeneration.

  5. Back in the late 1970’s, we didn’t terrace, but used a front mounted fire plow to bust out a solid mass of revegetated grasses and weeds in an area of severe fire. It was steep ground, and the thinking at the time was to plant 30+ pounds/acre of grass seed to prevent erosion. Well, boy did it stop erosion; and did the deer like it for winter range (Oregon). At that time, I was a peon JF who worked at doing what I was told, and I was told to reforest “suitable” land for timber production.

    It was a “huge” fire of 3,500 acres – and was quite large at that time. I came about approximately ten years after the burn, giving the grass a great start! I punched through the mass of mess, planted, herbicided, installed animal damage control measures, and by golly it is now a young forest of ponderosa pine! Even on aerial photos you could see the 10 -12 foot contours priori to the seedlings taken NF hold.

    Not a fan of terracing but did have much success with the fire plow.

    And Deane, I am one of those loathsome individuals who own land within the Forest Boundary. And, this parcel was homesteaded sixty years before the Forest was proclaimed……. To me, the Forest is the non-native, Invasive!

  6. The terraced plantations are now a real problem the BNF can’t figure out what to do with. The trees are very low value. The soil is way beyond allowable detrimental soil damage FP standards.
    But regen was more successful than most other areas due to terracing. The result is a problematic tree farm on public forest.
    This access issue came to a head when the Ranger, Chuck Oliver, proposed ATV loops playground in Robbins Gulch, (Darby Lumber Land II project) creating an attractive nuisance while being dismissive of public comment. The Ranger’s arrogance really ticked Wil off.

    This is the only Pacific Legal Foundation case that I know of that I support. It would not cut off public roaded access, just make it a longer drive.

    • Living in a place where trees customarily have no value, what is the problem? They need to be thinned to remain healthy and resilient but there is no $ to do it?

      • With the flat Forest Service budget era and the move towards “integrated” budgeting, funds for thinning young stands were hard to find – and there were more acres to thin than there were funds available. The NFS Reforestation Strategy (July 2022) brings the need for stand tending back into the picture, and the REPLANT Act removed the $30 million per year cap on the Reforestation Trust Fund (those funds can be used for reforestation and stand improvement), but the first priority for that increase is to meet the REPLANT Act requirements.


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