Groups ask court to block logging project in elk territory

Monique Merrill

SEATTLE (CN) — A trio of conservation groups on Thursday asked the Ninth Circuit to revive their bid to block a timber project in the Helena-Lewis and Clark National Forest in Montana.

The conservation groups — Native Ecosystems Council, Alliance for the Wild Rockies and Council on Wildlife and Fish — accused the Helena-Lewis and Clark National Forest and Forest Service of violating federal forest planning rules in approving the Wood Duck Project.

The Wood Duck Project is a forest management project treating just over 1,200 acres across a 70,000-acre section of the Big Belt Mountains in west-central Montana.

The groups sued the Forest Service, the Fish and Wildlife Service and the supervisors of the national forest last year, asking the court to block one of the project’s timber sales.

The lower court denied the motion, finding that the conservation groups didn’t show the project would irreparably harm them.

On appeal, the conservation groups argued the Forest Service violated the National Forest Management Act planning regulation that requires the agency to analyze a plan’s compliance with the forest plan.

“Neither the project decision notice nor the project [environmental assessment] ever described why the project would be consistent with these applicable forest plan components,” argued Rebecca Smith, attorney with the Public Interest Defense Center.

Part of the problem rests on the federal agency’s reliance on its consistency table — a list of relevant forest plan components and the Forest Service determination of whether the project is consistent with them — which the groups say wasn’t properly included in the decision notice, as required under the National Forest Management Plan.

“A member of the public would have to wade through the entire project record, the entire administrative record, to find that analysis, and that’s just not what the plain language of the regulation says,” Smith argued. “It requires that analysis in a specific document, which the Forest Service concedes is the decision notice.”

Plus, the groups argued that even if the consistency tables were properly incorporated, the analysis itself is insufficient, especially as it relates to elk.

“A critical fact we need to know is, where are the big game species? Are they on National Forest lands or not?” Smith said. “We can’t determine whether this condition is met, if we’re missing that basic fact, and that basic fact is not in this table.”

But the Forest Service argued it did comply with the regulation that requires it to describe how the project is consistent with applicable plan components.

Specifically, it pointed to a project review conducted by an interdisciplinary team of environmental and forest health experts who considered the relevant components of the forest plan.

“The agency is tasked with balancing how much information they put in each individual document, and I think what’s really helpful here is that the agency did so in a way that is quite organized,” said Maia Foster, Justice Department attorney. “Helps you find the answers that you seek if you’re a member of the public, but doesn’t have to have an extremely long decision notice when doing so.”

The Forest Service admitted elk security is low in the project area, but argued part of the reason is due to the destruction caused by recent wildfires.

“That’s kind of what prompted this project in the first place, was maintenance of those areas specifically in the fire perimeter to help build resiliency to an ongoing insect problem within those trees with pretty high density levels,” Foster said.

U.S. Circuit Judge Patrick Bumatay questioned the federal defendants about what prompted the project in the first place: commercial or ecological motivation?

Foster said it was a combination of both, explaining that timber harvest is an important part of the economy in the area and that the Forest Service has an interest in protecting trees from insect problems.

Plus, the Forest Service argued the project’s scope was reduced in response to public comments received.

Then there are the economic considerations associated with the project. Kris McLean, attorney representing intervening defendant Sun Mountain Lumber, argued the Ninth Circuit should uphold the lower court’s decision to avoid further harm to the lumber company.

“ Right now they’re in a very, very dark spot; they have no timber for their mill,” McLean said of Sun Mountain Lumber. “They depend on the Forest Service sales to keep this mill in Deer Lodge, Montana, running.”

Still, the conservation groups maintained that the Forest Service neglected its responsibility to follow environmental law.

“We want the decision or the project approval document to say, here are the applicable forest plan components for this project, and here are how we are complying with them,” Smith said.

The Ninth Circuit panel, which also included Senior U.S. Circuit Judges William Fletcher and Richard Paez, both Bill Clinton appointees, did not indicate when it would rule.