Attorneys argue bull trout, old growth in Bitterroot logging case
Laura Lundquist
(Missoula Current) A federal magistrate judge is pondering oral arguments on whether a logging project along the West Fork of the Bitterroot River should have stronger safeguards for bull trout and old-growth areas.
For two hours on Wednesday morning, Missoula federal magistrate judge Kathleen DeSoto listened to attorneys debate whether the Bitterroot National Forest and the U.S. Fish and Wildlife Service needed to do more environmental analysis of the Mud Creek logging project.
Approved in January 2023 by Forest Supervisor Matthew Anderson, the project encompasses more than 48,000 acres and includes the entire West Fork Bitterroot River-Rombo Creek watershed and portions of five other tributary watersheds, including Painted Rocks Lake. The project could last up to 20 years and permits 13,700 acres of commercial logging, 26,000 acres of non-commercial logging, 40,000 acres of prescribed burns, all of which would require around 40 miles of temporary and permanent roads. Four timber sales are waiting on the judge’s ruling.
Five conservation groups sued a year later, saying the environmental assessment and associated biological opinion issued by the U.S. Fish and Wildlife Service failed to look closely enough at how sediment from the additional roads might harm threatened bull trout. They also challenged the logging planned for old-growth areas and the lack of analysis for how the project would influence climate change emissions.
On Wednesday, plaintiffs’ attorney Oliver Wood tried to lay out how the Fish and Wildlife Service biological opinion of bull trout violated the Endangered Species Act, although DeSoto asked several questions. Bull trout are already on the decline because of habitat loss partly due to development and irrigation diversions. Sediment pollution is a primary threat to bull trout, and roads are responsible for the majority of sediment. Much of the area is already heavily roaded.
Even though the Forest Service determined the project “may affect and is likely to adversely affect” bull trout, the Fish and Wildlife Service didn’t require the Forest Service to identify where temporary logging roads would be built within “road prisms” next to streams. So they didn’t analyze how much sediment might clog those streams, Wood said.
The Fish and Wildlife Service did analyze the existing Nez Perce Fork Road and found that, in spite of the road having the best design features, sediment was still carried into the nearby stream to affect bull trout. Wood added that the Forest Service hadn’t specified at what point a road would have deteriorated enough to require another consultation with the Fish and Wildlife Service on sediment loads.
“By failing to disclose and analyze the location of these temporary roads in riparian habitat conservation areas - these 100-foot buffers between roads and streams - the biological opinion arbitrarily fails to consider an important factor by not providing a detailed discussion of the effects of the action,” Wood said. “Once these are opened up as temporary roads, there will be impacts.”
Shawn Pettigrew, U.S. Department of Justice attorney for the federal defendants, said the biological opinion was sufficient because the sediment analysis assumes the maximum amount of logging activity across the maximum time period. Also, any roads within the riparian conservation areas would incorporate preventative design features, Pettigrew said. DeSoto asked Pettigrew several questions, particularly related to whether the Forest Service monitors roads for deterioration or compliance with best practices.
“In assessing the maximum potential effects, these roads were considered as part of that analysis,” Pettigrew said. “There are specific monitoring requirements. And these are specific quantifiable monitoring requirements about the number of truckloads to be used on these roads in particular areas. And there’s an annual reporting requirement that the Forest Service provides to the Fish and Wildlife Service.”
The plaintiffs also challenged the way the project would treat old-growth areas under the National Forest Management Act. Wood said the 1987 Bitterroot Forest Plan chose to use the pine marten as an indicator species to evaluate old-growth health, and the Forest Service was supposed to monitor pine marten populations. But it hasn’t. Now, the project would allow logging in and around old-growth stands, but it will have no pine marten data to assess the result.
Pettigrew argued that monitoring pine martens didn’t matter, because the project removes no old-growth stands. However, the project allows loggers to go in and remove trees and vegetation adjacent to old-growth trees, thus cleaning the stands out.
But when DeSoto asked if Wood agreed that old-growth wasn’t being removed, Wood said no because “old-growth” habitat means more than just old trees. Pine martens, and many other species, choose old-growth habitat for its complexity, which includes downed wood and a varied understory that provide hiding places and dens or nests.
“This action is going to put unsuitable pine marten habitat on the landscape,” Wood said. “We know that the changing definition is going to allow the Forest Service to remove, it will go from 15 trees per acre to eight trees per acre. While they’re both termed ‘old-growth,’ the habitat will be different as experienced by the pine marten.”
Finally, the plaintiffs said the environmental assessment violated the National Environmental Policy Act because it didn’t take a “hard look” at the potential carbon emissions of the project. The assessment took carbon emissions at the national forest level and concluded the climate effects would be minor. Wood said the Bitterroot Forest could have done more of a quantitative assessment since it knows the number of log hauls associated with the project.
Ravalli County attorney Julie Weis said “the look was sufficiently hard,” because the law has no requirement to look at carbon emissions at the project level and the Forest Service had insufficient data to do so. Instead, the Forest Service did a qualitative analysis, Weis said.
“Carbon emissions associated with log transport, based on local data from Ravalli County, show that those are small in relation to the carbon stored in wood products,” Weis said. “Overall, the landscape level tells us that fire has caused the biggest loss of carbon storage in the Northern Region since 1990. That’s a disturbance factor that this project is trying to ameliorate. Fire is the biggest culprit, and this project is trying to reduce the risk of that fire that will cause the carbon emission.”
Wood said it was an overstatement to say the project would ameliorate the wildfire risk, since logging forest areas can dry them out. The environmental assessment says lower-risk surface fire is expected to occur on 79% of the project’s wildland-urban interface after treatment and 43% of the project is in the wildland-urban interface. The assessment also notes that while some landowners have reduced fuels on their property, “the majority are still at high risk. The exact location and amount of private land fuel reduction treatments are unknown.”
“Fires can still occur even in these treated areas. The record indicates that,” Wood said.
DeSoto said she would consider the arguments and issue a ruling soon. The plaintiffs include Alliance for the Wild Rockies, Native Ecosystems Council, Yellowstone to Uintas Connection, Friends of the Bitterroot and WildEarth Guardians.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.