Gold Butterfly logging project has day in court

A federal judge is considering whether a Sapphire Range logging project can proceed when it might reduce habitat for old-growth species and after the Bitterroot National Forest has exempted 10 other projects without considering cumulative effects on elk.

On Thursday, Missoula federal district magistrate Kathleen DeSoto heard almost three hours of arguments on whether the Bitterroot National Forest ignored some Forest Service requirements when it approved of the Gold Butterfly logging project along the western slopes of the Sapphire Mountains east of Corvallis.

In August 2023, Bitterroot National Forest supervisor Matthew Anderson published his decision to proceed with the Gold Butterfly Project, which included almost 5,300 acres of commercial logging and 2,000 acres of noncommercial cuts. That was not much different than his original decision made in 2019, which he withdrew seven months later after the Alliance for the Wild Rockies and the Friends of the Bitterroot filed a complaint primarily challenging the logging of old growth.

In this second round, the Alliance for the Wild Rockies and the Native Ecosystems Council filed their complaint in September 2024, again arguing against the proposed logging of old-growth but also against the agency’s exemption of the requirement to protect elk habitat and for not informing the public of the presence of grizzly bears and wolverine in the project area in recent years.

“There was a 2023 monitoring effort across the Bitterroot, the Beaverhead-Deerlodge and the Helena-Lewis and Clark national forests, and in all those national forests, they found one reproducing female wolverine and she was in this Gold Butterfly project area,” said plaintiffs’ attorney Rebecca Smith. “The plaintiffs requested a supplemental (environmental impact statement) on that ground. In response, the Forest Service declined to do a supplemental EIS and instead they did a supplemental information report, which is more of an internal memo.”

Smith said this was significant new information, but the supplemental report had no analysis, no public information and invited no public comment. Similarly, the report didn’t mention that three grizzly bears have traveled through the area in 2023. Based on this information, the U.S. Fish and Wildlife Service, which had originally said the project would have no effect on grizzlies, changed its opinion in 2024 to “may have an effect” on grizzlies. But that change was never made public, Smith said. The Forest Service decision still said there was no effect on grizzlies.

“Right now, we have a major conflict between the (environmental impact statement), which says there’s no effect on grizzly bears - and that’s the public-facing document - and the Endangered Species Act consultation, which admits there is an impact on grizzly bears,” Smith said. “So this is a more clear situation where, not only are they not disclosing information to the public that there are wolverines, they’re telling the public the wrong thing.”

John Tustin, attorney for the U.S. Forest Service, said the plaintiffs had no argument because any effect on grizzly bears falls under the Endangered Species Act and they didn’t make a challenge under the ESA. They could have because they got the Fish and Wildlife Service consultation document during discovery in 2024. In addition, the environmental impact statement assumed that bears would be present in the area so the evidence of three bears didn’t change the outcome.

DeSoto raised a question about the conflict between the consultation conclusion of “may affect” and the record of decision, which said “no effect.”

“I’m not saying there’s an ESA violation, but you can’t fault them for not bringing an ESA claim. There’s a (National Environmental Policy Act) claim and part of the problem is, because you didn’t adequately present the information, it doesn’t provide the public the notice that it needs to bring an ESA claim,” DeSoto said.

Grizzly bears and wolverines aren’t the only species potentially affected by the project. Two species, pine marten and pileated woodpecker, depend on ecologically sound old-growth stands for habitat, and the Bitterroot Forest Plan requires yearly monitoring of both species as a way to judge whether old-growth habitat is being maintained. If the populations decline, then logging could be damaging the functioning of old-growth stands. The Forest Service is supposed to use the annual data to develop five-year averages of the population so it can observe population trends.

But the Bitterroot Forest hasn’t done that, Smith said. The Forest Service has no trend information for either species. But recently, a third party, the Bird Conservancy of the Rockies, did a survey in the project area that appears to show woodpeckers may be declining.

But still, the Forest Service intends to log the 500 acres of old-growth remaining in the area. The Forest Service used to require that no fewer than 15 old-growth trees be left standing per acre, but now, that’s been reduced to 8 trees, because a research paper, Green, says that’s the minimum that can still qualify as an old-growth area..

Tustin said the Forest Service is still monitoring pine marten, which are in the area, but they’re using bait stations instead of transects and are still using transects to monitor woodpeckers. Based on those, the Forest Service estimated a population trend. He discounted the Bird Conservancy of the Rockies survey, saying it looked at all birds and wasn’t specific to woodpeckers. He said the plaintiffs can’t prove that the failure to monitor pine marten and woodpeckers leads to any harm of old-growth stands. In addition, the Green study says that old-growth characteristics remain with eight trees per acre, so the Forest Service isn’t harming old-growth - logging will make it healthier, Tustin said.

Smith said Green’s research identifies eight trees per acre as a minimum to qualify as “old growth,” but that doesn’t mean every acre should be logged to the minimum. That much logging minimizes the functioning of old-growth, as illustrated by agency estimates that logging would eliminate almost 3,000 acres of pine marten habitat and almost 2,500 acres of pileated woodpecker habitat.

“What did they say about the actual habitat?” Smith said. “Regardless of how they redefine old growth, we actually know that they have admitted in the record that thousands of acres of habitat for these two species will be rendered unsuitable by the logging. That’s the nexus here.”

Elk is the final species that the project could affect by building too many miles of roads, according to the plaintiffs. Research by Hillis in 1991 showed that secure habitat for elk has to be a minimum of a half-mile away from roads, so high road densities decrease secure habitat, causing elk to move elsewhere, often to private lands in the Bitterroot Valley. So Forest Plans have requirements for maintaining secure elk habitat. Hillis says a minimum of 30% of the area should be secure habitat although it’s already only 8% in the project area.

However, the Bitterroot National Forest created a site-specific amendment to exempt the project from elk-cover requirements to allow 17 more miles of road to be built. Smith said that violated the Forest Plan, because it goes against the best-available science. One of the project alternatives should have included elk-security improvements, Smith said.

In addition, this isn’t the only project with an exemption. Smith said the Bitterroot Forest has had more than 10 site-specific amendments and there will be two others for future projects. So the Forest Service should look at the cumulative effects of all of them, because they essentially changed the elk standard of the Forest Plan, Smith said.

“By repeatedly exempting yourself from habitat requirements over and over again, that is a significant change to the Forest Plan because it effectively invalidates that standard. I don’t know when the last time was that the Forest Service actually complied with that standard,” Smith said. “The question is not ‘Is there a significant environmental impact?’; it’s ‘Was there a significant change to the Forest Plan?’”

Tustin said that was a novel complaint.

“We don’t think there’s anything in the record or case law for the court to find that, if there were multiple amendments, that together, collectively, they result in significance,” Tustin said. “The Forest Service explained its position - not avoided - it explained its position and has a rational explanation for the amendments.”

DeSoto said she would take the arguments under advisement.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.