Litigation

Summertime Blame-Game Ritual: Ash Creek Fire and the Beaver Creek Logging Project

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Ash Creek Fire along Highway 212 in extreme southeastern Montana.

You may have noticed that within the past few days some people are attempting to make a connection between the 186,800 acre Ash Creek Complex Wildfire burning in grass, sage, juniper and pine in extreme southeastern Montana with the Forest Service’s proposed Beaver Creek project, which in March was halted by a federal court judge due to a number of deficiencies in the agency’s Environmental Impact Statement (EIS).  That project, proposed for the Ashland Ranger District of the Custer National Forest, called for commercial logging on 1,487 acres and prescribed burning on 8,054 acres and also would have required 35 miles of new road construction and reconstruction.

According to a late March 2012 article in the Billings Gazette [emphasis added]:

A federal judge has ordered the Forest Service to halt implementation of [the Beaver Creek] logging project in the largest island of public land in southeastern Montana and to issue a supplemental environmental impact statement to address deficiencies in its first one.

On Monday, District Judge Donald Molloy ruled in favor of the Alliance for the Wild Rockies and Native Ecosystems Council on some of their complaints filed in July, and dismissed others.

Molloy found in favor of the environmental groups concerning the failure of the EIS to consider stormwater runoff from road construction. Molloy also said the Forest Service failed to explain why it analyzed road density only at the project level and ranger district level, why it applied the road density standard only to forest land and for failing to analyze road density during the project’s implementation.

Not deterred by the fact that the Ash Creek Complex wildfire burned across nearly 300 square miles of grass, sage and scattered pockets of trees on various land ownerships before finally reaching a portion of the proposed Beaver Creek logging project, some people seem to have no problems trying to tie the current wildfire with the proposed logging project in some sort of ridiculous summertime blame-game ritual.

Even the Forest Service couldn’t resist trying to make a connection in this recent article [emphasis added]:

“Had we been able to move forward with the [Beaver Creek] project, the management action could have helped,” said Marna Daley, a public affairs officer for the Gallatin and Custer national forests. “But it’s impossible to predict to what degree.“

“The project would not have prevented a [186,800 acre] fire from occurring,” Daley said. “That was not the purpose of the project. But it could have moderated the fire behavior. I say ’could’ because with the extreme fire activity and behavior we’re seeing, it’s unknown.“

“Impossible to predict.” “Could have.” “It’s unknown.”  Well, if that’s all the case, then why in the world is the Forest Service trying to make hay with a ridiculous attempt at trying to connect a wildfire that burned through 180,000 acres of grass, sage and scattered trees before finally reaching portions of a proposed logging project?  And in reality, it’s not as if a logging project always results in less fire risk, as we pointed out back in 2004 when we produced this Wildfire primer, which was inserted into newspapers across the western United States.

Finally, speaking of “extreme fire activity and behavior” it’s worth pointing out today’s official weather forecast for the Ash Creek Fire:

There is a Red Flag Warning for the fire area today with temperatures forecasted to reach up to 106 degrees, relative humidity levels between 5 to 15% with southerly winds at 10-20 mph and gusts that could reach 35 mph.

Best of luck to the firefighters, as that’s not exactly ideal firefighting weather.  Since the firefighters are already dealing with plenty of hot air, hopefully those people looking to play the annual Wildfire Blame-Game will take a break and cool it.

Cattle herd in post-fire area.

More News on Colt Summit and “Collaboration”

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This morning’s Missoulian has another look at the Colt Summit timber sale on the Lolo National Forest, the first timber sale on the Lolo to be litigated in over 5 years. Here are some snips from that article:

Project opponent George Wuerthner, a writer and ecologist, countered in an email that the cumulative effects are there for anyone to see from an airplane. In a series of photos he posted online (bit.ly/L1436w), he argued the Colt-Summit area is one of the few remaining bits of habitat left in the region.

“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 backroads,” Wuerthner wrote. “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.”

Friends of the Wild Swan director Arlene Montgomery added that the legal record also contradicts Forest Service claims of being inclusive and thorough.

“I’ve been through the whole project record, and I didn’t see anything that the collaborators who’ve come out against us were any more involved than I was,” Montgomery said. “The fact they think they can paper over cumulative effects in an area so fragmented from past logging – it’s quite remarkable they put in such little regard for our laws. The environmental assessment was devoid of that kind of analysis. And that’s not a gray area where we didn’t know where the line was. It was pretty black and white.”

My personal feeling on the matter is that it’s important for people to understand that not all “collaborative” groups around the country are created equally.  Unfortunately, in the opinion of lots of conservation groups around the country, some of the “collaboration” currently taking place in Montana is viewed negatively because it feels more like a takeover of our public forests by largely well-funded organizations, the timber industry, local governments and politicians.

My observation being a part of some of these Montana “collaborations” is that if you don’t agree up-front to most of what the Forest Service and the timber industry wants to do anyway, that these “collaborative” groups  just make it difficult for a normal citizen or smaller organization to participate.  And, besides, many of these Montana “collaboration” meetings take place mid-day during the week, not exactly an ideal time for most of the general public.

So, essentially, the vast majority of the people attending some of these Montana collaborative meetings are paid to be there.  Either they work for the Forest Service, timber industry, well-funded conservation groups or local governments or a politician.  On top of that, many of the meetings never seem about understanding the latest science, research or legal requirements.  It’s more about supporting the Forest Service’s projects by attending these meetings, smiling, nodding in agreement, eating your bag lunch and then going out and running a PR campaign through paid ads, letters to the editors and hosting one-sided events to give the impression that everyone in the world agrees with what the Forest Service has come up with.

Take Colt Summit, for example. It’s clear from the administrative record that the Forest Service designed the Colt Summit Project and the specific prescriptions, then delivered the project to the SWCC (Southwestern Crown of the Continent Collaborative group) for approval and inclusion in the SWCC’s CFLRP application.

Claims by some of the “collaborators” that the plaintiffs didn’t participate in the up-front planning for the Colt Summit project are completely untrue.  In fact, the public record for this timber sale actually reflects a higher level of involvement from the plaintiffs from some of the ‘collaborators.’ Plaintiffs attended all meetings, all field trips and submitted extensive, detailed and substantive comments during the entire NEPA process.  Some of the collaborating conservation groups didn’t even submit detailed comments during NEPA.  They are essentially replacing their largely self-selective “collaborative group” for the NEPA process, which is open equally and inclusively for all Americans.

One of my main concerns with some of the worst examples of “collaboration” that I see in Montana is that some of these conservationist ‘collaborators’ are running what are essentially political campaigns, not campaigns to hold the Forest Service accountable and make sure that management of national forests is guided by law, the latest science and economically-sound policies.  These conservation groups, such as the Montana Wilderness Association,  have effectively abandoned any of these public education efforts. Honestly, I’m not sure that most of MWA’s new hires over the past few years have any clue about the law, science and economics of the federal timber sale program.  Furthermore, some of these conservation groups have basically neutered themselves from speaking out against Forest Service logging projects or the timber industry’s demands to do away with the public appeals process and exempt many Montana logging projects from court challenge.

What the future of national forest management looks like without an effective checks-and-balance on the Forest Service and timber industry is anyone’s guess, but my hunch is that some of these “collaborative” approaches that we are seeing here in Montana will not be in the best interest of America’s public lands legacy.

AWR Press Release on Colt Summit Timber Sale

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FOR IMMEDIATE RELEASE
 JUNE 21, 2012

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 halted the Colt Summit Timber Sale on the Seeley Lake Ranger District on June 20th.

Garrity said, “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.  Judge Molloy has remanded the project back to the agency for further consideration and analysis.”

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. The groups did not challenge the road reclamation work associated with the project.

“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.  “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 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.  It 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 the Colt Summit area 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. 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.”

Judge Malloy’s Brief Summary of Decision on Colt Summit

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Thanks to my heroine of the day…

TEXT ORDER granting in part and denying in part [30]Plaintiff’s Motion for Summary Judgment; granting in part and denying in part [36] Defendant’s Motion for Summary Judgment. A separate Opinion will be entered in this case, however for the benefit of the parties and their planning I am denying most of the plaintiff’s claims, save one, and granting most of the defendant’s assertions, save one. The Project complies with Standards VEG S6 and ALL S1, which relate to lynx and lynx critical habitat. The project also complies with the Inland Native Fish Strategy standards governing streamside and wetland buffers. The Forest Service adequately analyzed the Project’s effects on lynx and grizzlies and did not violate Section 7(a)(2) of the Endangered Species Act. Furthermore, the Service did not improperly exclude the Summit Salvage Project Area from its analysis. The shortcoming of the Service, and the question on which the plaintiff’s prevail is in one aspect of the NEPA evaluation. The Service violated NEPA by failing to adequately analyze the Project’s cummulative effects on lynx. Consequently on this issue plaintiff’s motion for summary judgment is granted and the cummulative effects analysis on lynx is remanded to the Forest Service for further consideration and analysis. In all other respects the plaintiff’s motion for summary judgment is DENIED and defendant’s motion for summary judgement is GRANTED. A written order with my reasoning will follow. Signed by Judge Donald W. Molloy on 6/20/2012. (Molloy, Donald)

All sides claim victory in logging lawsuit ruling: AP story on Colt Summit

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Above are the details of the disputed project.

Thanks, JZ for this AP story in the Helena IR.

Link here.
Excerpt below.

Lolo National Forest Supervisor Debbie Austin said the one-paragraph order does not address the status of the project, so both sides must wait for the full order to determine the effect of Molloy’s ruling. But Austin declared it a win for the project, saying the judge ruled with the Forest Service on most of the claims brought against it.

“We won on 11 of the 12 counts, and most importantly, we did show that we provided adequate analysis and are providing adequate protections for lynx, grizzly bears and bull trout,” Austin said. “We’re just waiting for the full opinion and we’re looking forward to strengthening the cumulative effects analysis and moving forward.”

The Wilderness Society also called the ruling a victory for the project because Molloy upheld “their most significant argument,” that the project would not harm lynx, grizzly bears and bull trout.

Assessing the long-term cumulative effects on lynx habitat won’t present a major obstacle because the judge has already agreed the project won’t harm lynx, the organization said.

Garrity said that when the Colt Summit Project is put into the context of other logging projects on private land and in the neighboring Flathead National Forest, there is a real threat to lynx habitat.

“I don’t think that’s something they can paper over,” Garrity said. “It’s a real issue.”

Austin said contracts for part of the project that are not being contested, such as roadwork and culvert repairs, already have been awarded and work could begin as early as July 1. A contract for the logging portion of the project has not yet been awarded, and advertising the timber sale has been pushed back to later in the summer because of other priorities, she said.

But the important thing, Austin said, is that the judge’s ruling is a good sign of the strength of the collaborative process and the Forest Service will be working to develop more projects using that method.

“The design and development is much better and I think that is shown in the judge’s decision,” she said.

Note from Sharon: It should be interesting to see what kind of cumulative effects analysis is “enough.” Apparently, the bull trout and grizzly bear cumulative effects were “enough,” so we’ll be able to tell what Judge Molloy thought was missing. PS If anyone has a copy of the order please send to [email protected].

Judge Molloy on Colt Summit- E&E News

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Here’s a link.

Here’s an excerpt:

In a brief order that will be followed by a lengthier written opinion, Molloy granted the Forest Service’s motion for summary judgment on several points. Among other things, he concluded that the Forest Service had adequately reviewed the potential direct impact of the proposal on lynx and grizzly bears.

But he ruled that the analysis of the project’s cumulative impact on lynx as required by the National Environmental Policy Act was not sufficient.

The Forest Service will now have to conduct that analysis before the plan can go ahead.

Megan Birzell of the Wilderness Society, a supporter of the plan, said Molloy’s finding was not a major setback because of the judge’s concurrent finding that the project passed muster under the Endangered Species Act.

“The judge said it won’t have an impact on lynx, but the Forest Service needs to beef up their analysis to better document that,” she said.

It will be interesting to see exactly what the documentation didn’t have that the judge was looking for.

Environmental laws are essential: U.S. government needs to follow the guidelines, requirements it has established: op-ed in Missoulian

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JZ contributed this link in a previous comment, it seemed worthy of its own post. This is an op-ed by Mike Garrity and Carole King (is she a member of Mike’s group?)

Do these groups agree with the timber industry’s demands? If the “collaborative” groups believe we should eliminate the public appeals process and exempt many Montana timber sales from judicial review, they should say so openly to their members and the general public so everyone knows exactly where they stand. If their goal is to protect land and wildlife in a meaningful way, they should speak up in defense of maintaining full public involvement and judicial review in public lands management.

The mission of the Alliance for the Wild Rockies is “to secure ecological integrity of the Wild Rockies bioregion through citizen empowerment and the application of conservation biology, sustainable economic models and environmental law.” Enforcing the environmental laws of the United States that apply to public lands management is critical to maintaining ecological integrity.

When our government doesn’t follow the requirements of those laws, the Alliance turns to the courts to force federal agencies to follow the law. Our record is clear. Our success in the vast majority of our lawsuits proves beyond a doubt that our claims have merit.

“It’s easy to see how a climate of silence from the “collaborative” groups might encourage the Forest Service to believe it can avoid full compliance with environmental laws. It’s more difficult to understand why, when a citizen group steps forward to see that our nation’s laws are enforced, the “collaborative” conservation groups go on a well-financed public relations campaign and their industry “partners” launch statewide attack ads against that group.”

It’s clear that corporations want subsidized access to public lands unencumbered by environmental laws. When the government follows the law, the Alliance supports its actions. When it doesn’t, we go to court. That’s how democracy works, and that’s where we stand.

Sharon – It’s not clear to me that “corporations” want “subsidized access” “unencumbered by environmental laws”. Overstatements make me lose confidence in people; they seem to make newspaper editors want to publish op-eds, though.

Court declines to rehear Sierra Nevada case from E&E News

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Here’s a link.

Excerpts

A three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals said it would not rehear the case. The full court also opted against an en banc hearing involving 11 judges

and

Judge William Fletcher’s majority opinion in the case was one of several openly criticized by one of his colleagues on the court, Judge Milan Smith, in a vituperative dissenting opinion filed earlier this month when the court, sitting en banc, ordered the Forest Service to consult with other agencies over whether gold prospecting in the Klamath National Forest will negatively affect fish species (Greenwire, June 4).

If left intact, the Sierra Nevada ruling “will dramatically impede any future logging in the West” because “it will take even longer for the agencies to approve forest plans,” Smith wrote in his dissenting opinion. Chief Judge Alex Kozinski was the only other judge who signed on to Smith’s most outspoken comments.

Despite Smith’s concerns, today’s announcement said that “no judge of the court has requested a vote on whether to rehear the matter en banc.”

Arthur Hellman, a professor at the University of Pittsburgh School of Law, said he was surprised that Smith had not asked for the court to vote on an en banc rehearing.

“On the surface, it doesn’t make much sense,” he said. Hellman speculated that the outcome in the Klamath gold prospecting case may have deterred Smith from pursuing the issue. Instead, Smith may be hoping that the Supreme Court will take up the case, Hellman said.

N. Idaho logging project faces possible lawsuit

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Thanks to JZ for this contribution.

From the Helena here: LEWISTON, Idaho (AP) — N. Idaho logging project faces possible lawsuit

“Two environmental groups say they will file a lawsuit against the U.S. Forest Service concerning a planned logging project in the Nez Perce-Clearwater National Forests.
Friends of the Clearwater in Moscow, Idaho, and the Alliance of the Wild Rockies in Helena have filed a 60-day notice as required under federal law.”

“… the groups contend the 2,500-acre Little Slate Project in northern Idaho will harm protected species, including Canada lynx, bull trout, steelhead and spring and summer chinook.”

“The project involves a mix of logging and restoration, with the goal of treating lodgepole pine stands harmed by beetle infestations.”

A copy of the appeal response for the project can be found here.

The project file here.

From the ROD on the vegetation treatments:

Vegetation Treatments
Alternative B2 will conduct timber harvest and fuel reduction treatments on 2,598 acres to alter species composition and structure.
Regeneration harvest will occur on 2,188 acres as described below.
• 1,211 acres will be clearcut with reserves. Most of the existing mature stand will be removed to
produce a site with high sun exposure that will provide optimum growing conditions for the new
stand. This prescription will be implemented in lodgepole pine dominant stands with little
regeneration and few healthy trees in the overstory. Approximately 5 to 10% of the existing
canopy will be retained in all harvest units to serve as shelter and some cases, serve as a seed
source. Following site preparation, the units will be planted with western larch and ponderosa
pine. Some areas will be allowed to regenerate naturally.
• 600 acres will be seed tree cut with reserves. This prescription will be implemented in areas
dominated by lodgepole pine where healthier, vigorous trees of desirable species (western larch,
ponderosa pine, Douglas fir) are present in the overstory to provide a source of seed for natural
regeneration. Eight to ten trees per acre will be left widely scattered on the sites following
harvest to provide seeds for natural regeneration and serve as shelter. Seed tree retention is based
on desired species, wind firmness, and seed-producing capacity and is considered in the count of
green tree replacements for snags. Ten to 20 percent of the canopy should be present following
treatment. Following site preparation, the units will be planted with western larch and ponderosa
pine or allowed to regenerate naturally.
• 377 acres will be shelterwood cut. This prescription will be implemented in areas dominated by
lodgepole pine, with areas which contain higher concentrations of other species including western
larch, ponderosa pine, Douglas-fir, grand fir and Engelmann spruce. Approximately 20 to 40%
(15 to 40 trees per acre) of the overstory tree canopy will be retained to provide shade, structural
diversity and other resource benefits. Retained trees consist of healthy, vigorous medium to large
diameter western larch, ponderosa pine and Douglas fir. These trees will be included in the count
for green tree replacements for snags. Following site preparation, the units will be planted with
western larch and ponderosa pine or allowed to regenerate naturally.

Commercial thinning will be completed on 410 acres to increase growth, vigor, and resistance to
damage from fire, insects and diseases. This prescription will be implemented in areas that are
predominantly mixed conifer. Intermediate suppressed trees will be harvested and about 40 to 100
overstory trees per acre of healthy dominant and co-dominant trees will be retained, leaving 40-70%
canopy coverage. Seral species such as ponderosa pine and western larch will be favored for retention,but healthy, larger Douglas-fir, Engelmann spruce and grand fir are viable leave trees. In areas where nodesirable leave trees exist, openings up to two acres in size may be created.

Snag, Downed Wood and Standing Live Tree Retention. All regeneration and commercial thinning
treatments will retain snags, green trees and downed wood consistent with Region 1 snag and green tree
retention guidelines as revised by the Nez Perce Forest for each cover type (See FEIS, Appendix C).
Green reserve trees will be retained, where possible, around snags to protect them from logging or
burning and reduce the likelihood of being felled as a hazard tree. The larger trees in a unit will be
retained, with a preference of western larch, ponderosa pine, and Douglas-fir where they occur. Reserve
trees may be lodgepole pine if they are free of mistletoe and mountain pine beetle. Trees with dwarf
mistletoe infections (lodgepole pine, western larch, and Douglas-fir) should not be retained if possible.
After treatment, all units will retain 7-14 tons per acre of downed woody material 3 inches diameter or greater in grand fir habitat types and 12-23 tons per acre in subalpine fir habitat types. (Graham et al.1994).

Note from Sharon: Photos of the units with some reasonable before and after photos of similar treatments would be helpful in discussions and with the public. A picture is worth 1000 words. Are there any out there? If so, please send to [email protected].