Lolo National Forest drops Soldier Butler logging project appeal

The Lolo National Forest has cancelled its appeal of an August court ruling that requires forest managers to improve their analyses of wildlife habitat before a Ninemile logging project could take place.

On Monday, the Ninth Circuit Court of Appeals granted a U.S. Department of Justice request to dismiss a Lolo National Forest appeal regarding the Soldier-Butler logging project in the Ninemile Valley. The Justice Department made its request to dismiss on Friday after filing the appeal on Dec. 3.

The project would have burned and logged about 10,000 acres along the northeast side of Ninemile Creek and harvested 18 million board feet. About 3,000 truckloads would be required to carry the timber out. The Lolo National Forest had no comment on the dismissal or plans for the project.

Two environmental groups – Alliance for the Wild Rockies and the Flathead-Lolo-Bitterroot Citizen Task Force - challenged the Soldier Butler logging project in October 2020 because of its possible detrimental effects on elk, grizzly bears and birds. On Tuesday, the groups said they weren’t surprised the Lolo National Forest backed out because the project had failed to follow the Lolo Forest’s own Management Plan and the Endangered Species Act.

“This particular sale and the place it’s at are kind of at a turning point. The Forest Service has a chance to reset and reevaluate, and we’ll see what they do,” said Mike Bader, Flathead-Lolo-Bitterroot Citizen Task Force consultant. “Will they just try to get around it? If so, we’ll have to go to court for another couple years, and it’s justice delayed for the wildlife.”

Mike Garrity, Alliance for the Wild Rockies executive director, said the Forest Service’s time would be better spent shutting down all the illegal roads in the area first.

“We hope that the Forest Service will now direct its attention to removing the 44 miles of illegal roads in the area that it first promised the public it would remove with the Frenchtown Face project over 16 years ago, but never did,” Garrity said.

In August 2021, almost a year after the lawsuit was filed, Missoula federal magistrate judge Kathleen DeSoto put the logging project on hold after finding that the Lolo National Forest had skirted the law in three aspects of the Soldier-Butler environmental analysis.

While elk have roamed the area for a while, grizzly bears are newer to the region as they’ve slowly recovered from near extinction. In 2018, the new Northern Continental Divide Grizzly Bear Management Plan identified the Ninemile basin a connectivity area for grizzly bears, which means some safe habitat needs to be preserved to protect bears as they move between recovery areas.

Road density and the number of closed roads that are still usable ended up being problems for the project. If too many roads crisscross an area too close together, they don’t leave enough secure habitat in between for elk and grizzly bears and the animals will avoid the area. The Citizen Task Force found many “closed” roads were still getting illegal off-road traffic.

When the Lolo Forest consulted with the U.S. Fish and Wildlife Service on threats to grizzly bears across the forest in 2012, the Forest Service had failed to include the presence of 137 miles of “undetermined” roads. So the resulting Fish and Wildlife Service biological opinion of the Forest Plan’s protection of grizzlies was invalid, because people using those unaccounted-for roads could threaten more bears. Elk have the same problem with roads – they thrive better on large undisturbed areas, especially in winter and during the hunting season.

In her April 2020 decision, Lolo Forest Superintendent Carolyn Upton said “impacts to wildlife, specifically big game and grizzly bears, weighed heavily in my decision.” In response to public comment and suggestions from Montana Fish, Wildlife & Parks, she reduced the amount of thinning in a few small units, limited some road-building and logging to the winter, and said hiding cover would be maintained near certain roads.

Forest Service attorneys argued that the Lolo Forest had gotten a biological opinion specific to the Soldier-Butler project from the Fish and Wildlife Service in 2020. But the judge said that wasn’t good enough for threatened grizzly bears because the 2020 biological opinion was based upon the invalid 2012 opinion.  

So too many roads may exist to begin with and adding more logging roads for the project could make things worse.

“The Forest Service has been treating the Ninemile Demographic Connectivity area as a designation in name only,” Bader said. ““The Lolo is the only forest, I believe, that has land in three different grizzly bears recovery areas. It’s automatically 'Connectivity Central.' So the idea that they’d do this old-fashioned timber sale with 16 miles of new roads and fudge on the road network - they’re not treating the area for what it is.”

DeSoto also found the Lolo Forest hadn’t followed its Forest Plan guidance when it came to elk cover and retention of tree snags for nesting birds in the project area. The Forest Plan says at least half of the area identified as elk winter range must be covered by trees big enough or stands dense enough to provide cover for warmth. The project planned to cut more than half the trees in one area – Management Unit 21 -  and try to compensate by leaving more trees in other areas. But that defeats the intent of the plan’s standards, which is protection of healthy elk habitat.

"It’s unfortunate that the only way to address the serial law-breaking by the Forest Service is to sue. Our politicians need to ensure that the agency stops this pattern of continual illegality instead of repeatedly blaming ‘environmental activists’ for making the Forest Service follow the law,” Garrity said.

The Lolo National Forest is beginning the process of rewriting its 1986 Forest Management Plan, which has had to be amended several times in the past 36 years. Wildlife advocates are hoping to include solid protections for wildlife habitat in the new plan as more people move into the area, putting more demands on the forest.

Bader said the Citizen Task Force is already working on its proposal for the plan.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.