Elk requirements stop Lincoln area logging project

A logging project near Lincoln won't move forward after a judge ruled the U.S. Forest Service can’t use elk population numbers to justify violating habitat standards.

Missoula federal judge Donald Molloy this week issued a ruling concluding the Helena National Forest broke the law by skipping over a few parts of its analysis of the Stonewall logging project 4 miles northwest of Lincoln.

More importantly, he said all the project amendments the national forest has issued to bypass requirements to keep elk habitat up to certain levels – a total of nine including the Stonewall exemption – amounted to a project-by-project snub of the Helena Forest Plan.

“While the Forest Service effectively shows a maintenance of elk populations, the Plan requires maintenance of habitat and cover. That tension is only made more apparent when one considers that the Forest Service has actively avoided complying with any metric related to elk habitat or cover,” Molloy wrote in Monday’s ruling.

The Stonewall Project proposal has had a bumpy history since its draft decision was published in April 2015 along with an amendment to Helena Forest Plan elk requirements. The Alliance for the Wild Rockies and Native Ecosystems Council filed a lawsuit in February 2017, saying the project’s logging and roads would degrade habitat for elk, grizzly bears and lynx on the southern edge of the Bob Marshall Wilderness Complex.

The lawsuit didn’t get a chance to get very far. In July 2017, the Park Creek Fire burned more than half of the project’s 24,000 acres, so the Forest Service volunteered to redo its analysis. Once the supplemental analysis was complete, the Helena National Forest in December 2019 again approved the project, which would commercially log 700 acres, conduct thinning on 400 acres and require the reconstruction and maintenance of 25 miles of road.

Again, the two plaintiffs filed a lawsuit a year later, claiming little had changed regarding wildlife habitat violations. On Monday, Molloy agreed with most of their claims.

"Despite these clear problems that were brought to the Forest Service’s attention, the Stonewall logging project would have degraded elk security on public lands rather than improving it," said Alliance for the Wild Rockies executive director Michael Garrity.

The Helena Forest Plan requires the agency to maintain enough trees close enough together to provide elk with hiding cover during hunting season, thermal cover during the winter and to minimize road density to ensure hiding cover is sufficient.

The Stonewall Project didn’t maintain these requirements – difficult to do when the area already doesn’t meet many of them – so forest managers wrote an amendment to the forest plan to allow the project to go forward.

That’s where Molloy determined the Forest Service made some wrong assumptions. By putting too much emphasis on how well they maintained elk numbers instead of elk habitat, particularly road densities, Molloy found managers violated their own forest plan and thus the Forest Management Act.

For example, forest managers didn’t analyze whether the 25 miles of road qualified as a “low level” of density, which the Forest Plan requires for elk security. The Forest Service argued that “low level” isn’t defined in the Forest Plan. Molloy said the definition may be in question, but an analysis is still required to show the agency looked at it.

More importantly, the two environmental organizations argued that the Helena National Forest had a history of writing amendments to waive requirements, which created a bigger effect on the ground but also showed an overall disregard for habitat requirements.

Because some of the amended projects, including the Middleman Project, were in the same region, the cumulative effect of the reduction in elk habitat is bigger than it is at just one site. Therefore, the two organizations argued that the Stonewall environmental analysis should have looked at all nearby projects.

The Forest Service attorneys tried to argue that the Middleman Project hadn’t been fleshed out when the Stonewall project was analyzed, therefore the agency couldn’t have speculated on its effect. But Forest Service documents show that managers were already planning on an amendment for the Middleman project before the Stonewall project was approved in December 2019. So they could have included it in the analysis.

The plaintiffs obtained Forest Service documents through a Freedom of Information Act request that showed the Middleman amendment had been discussed as early as February 2019. But during oral arguments a few weeks ago, Molloy said he was surprised when Forest Service attorneys “stated that as of December 2019, none of the projects, including the Middleman Project, had even been proposed, let alone that they would affect elk cover.”

Molloy didn’t buy that and ordered the Forest Service to conduct a cumulative effects analysis including the Middleman Project. Similarly, he ordered the agency to analyze how activities in the Center Horse Restoration Project might interact with those in the Stonewall project to affect grizzly bears, since both projects are in the Northern Continental Divide Recovery Zone.

Looking at the fact the Helena Forest had issued similar amendments on eight other projects, Molloy found the trend created “an entirely different approach to elk management.”

If the road density, hiding and thermal cover requirements are no long viable standards for maintaining elk, Molloy said, then the Helena Forest needed to amend its plan, which requires another environmental analysis, regardless of how well herds are doing. It’s unlikely the agency would take that action.

Montana Fish, Wildlife & Parks emphasizes the importance of habitat over elk population numbers as the correct measure of elk security, even though FWP supported the Stonewall project.

“At oral argument, Plaintiffs persuasively explained why habitat preservation is different from elk population numbers. Put simply, the Forest Plan seeks to preserve habitat in order to keep elk on public land during hunting season – a consideration not reflected in sheer population,” Molloy wrote.

Finally, in a nod to current events, Molloy expressed some sympathy for the Forest Service having to adjust to rapidly changing policy. He pointed to a recent Biden administration order to reinstate a National Environmental Policy Act requirement to analyze the cumulative effects of a federal project. It’s an effort to restore the law after the Trump administration rescinded the requirement in September 2020.

“While it is the agency that ultimately suffers the consequences of this executive volte-face, it is alarming that a single executive order could result in such a drastic—and fundamental—change to NEPA’s regulatory regime. Defendants will have to suss out their path forward on remand,” Molloy wrote.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.