Blair Miller

(Daily Montana) A consortium of conservation groups, including several from Montana, have again sued the U.S. Forest Service and other federal agencies over a forest thinning and prescribed burn project planned in the Bitterroot National Forest they say disregards the Endangered Species Act and National Environmental Policy Act.

The lawsuit, filed Thursday in federal court in Missoula on behalf of Alliance for the Wild Rockies, Native Ecosystems Council, Yellowstone to Uintas Connection, Friends of the Bitterroot and WildEarth Guardians, challenges the Mud Creek Vegetation Management Project, which involves logging, thinning, and burning 48,486 acres within the Bitterroot National Forest southwest of Darby and was signed off on by the forest supervisor last January.

The lawsuit contends that the USFS, Bitterroot National Forest managers, and the U.S. Fish and Wildlife Service are violating the two critical conservation acts by failing to tell the public where exactly within the plan area the logging and burning will take place, what effects that will have on the environment, and are failing to account for how the project will affect threatened bull trout and whitebark pine trees in the forest.

The suit claims that the agencies’ alleged failure to make concrete plans, and the determinations contained in an environmental assessment and planning documents, mean the agencies are failing to take a “hard look” at how the project will affect threatened species and how it will affect the climate – one of the requirements for projects under NEPA and the ESA.

“There’s so much wrong with this project – so many illegalities, omissions, and disregard for the foundational laws, that our conservation groups had no choice but to try to stop this project due to its negative impacts on fish, wildlife and the forested landscape,” Mike Garrity, the executive director of the Alliance for the Wild Rockies, said in a statement.

The project could take place over up to 20 years and would involve 13,700 acres of commercial logging, 26,000 acres of non-commercial logging, 40,000 acres of prescribed burns, and the building of around 40 miles of temporary and specified roads.

The Forest Service said the project aims to make the forest healthier by reducing fuels and cutting down on the risk that a wildfire there could spread into nearby communities. It had to amend the Bitterroot National Forest’s Forest Plan related to elk habitat and old growth forests in order for the plan to be approved. It also said the project would improve habitat and forage for ungulates and other species in the region.

But the conservation groups contend that the USFS has used those same amendments to allow for more than a dozen projects to proceed within the Bitterroot National Forest since 2001 and is not considering new old-growth forest policies, how road construction sediment could affect bull trout habitat, nor the recent listing of the whitebark pine under the ESA in proceeding with the project.

The plans for the project found that while it might adversely affect bull trout habitat and whitebark pines in the area, those effects might be minimal because the bull trout habitat in the area is already degraded, and there were intermittent pockets of whitebark pine found in a survey of a fraction of the part of the project.

The lawsuit says though whitebark pines are now listed as threatened, and the USFS has started a consultation on those pines in the area, it could start the project before that consultation is complete, which the groups argue violates federal law.

“Despite the lack of surveys for whitebark pine, but the apparent presence throughout the project area, the Mud Creek BA for whitebark pine concludes no threat to the species in any form,” the lawsuit says. “Because USFS has conducted limited surveys for whitebark pine presence in the project area, it does not have adequate information upon which to base this jeopardy conclusion and upon which to allow removal of this species.”

The groups say that the USFS is again moving forward with a project that will affect threatened species, critical habitat, and waterways without clear sites and timelines available for the public before it was approved.

“Rather than surveying the project area and analyzing site-specific information to determine which management activities are appropriate to which area before approving and finalizing a project, the Forest Service approved all logging and burning over large swaths of the Project area, leaving the actual decision of what is appropriate until after the project is finalized, when the public may no longer participate in the decision-making process,” the lawsuit says.

The U.S. Forest Service and other federal agencies do not comment on pending litigation.

Further, the groups say that the amendments made to the forest plan allow the USFS to piecemeal together parcels of old-growth forest to meet a certain percentage goal while cutting larger portions that would have been off limits under the forest plan.

They say the plan also would include building roads in areas of eight streams that hold bull trout including three that have designated bull trout habitat where the populations are already declining. Because of a lack of clear site-specific plans for the roads, the lawsuit says the plan is only accounting for long-term sediment redeposition and not for what the sediment could do to fish habitat during the course of the project, nor how it could contribute to the survival and recovery of the threatened species.

“USFWS fails to consider what effect the project will have on bull trout recovery,” the suit states. “And for the reasons already discussed above, there is no reasonable basis for finding the project will not impede bull trout recovery, given the harms the USFWS admitted the project will cause bull trout in this vulnerable, downward-spiraling core area.”

The groups are challenging the project on several claims: that it violates NEPA because of a lack of concrete plans and a failure to take a “hard look” at environmental consequences and climate impacts; that the ESA is being violated for similar reasons; that failing to use the old-growth forest definition within the Bitterroot Forest Plan violates federal law; and that failing to look at impacts to bull trout and whitebark pine also violates the ESA.

The suit asks a judge to declare the project in violation of NEPA, the ESA, and other federal statutes, to have the agencies conduct new reviews and complete and environmental impact statement for the project, to specify locations for logging and burning, and to keep the project from moving forward until the agencies comply with the law.

“Under the direction of President Biden, the Forest Service announced a new policy just last month meant to protect and foster old growth forests in recognition of their ability to serve as part of a broader climate-crisis solution,” said WildEarth Guardians ReWilding Manager Adam Rissien. “The Bitterroot National Forest is literally undercutting the administration, and all these long-term projects like Mud Creek must be halted for careful evaluation of their consistency with the new policy.”

Some of the same groups are also challenging another logging project planned for the Custer Gallatin National Forest under similar claims of violations of the ESA and NEPA. Last month, the two sides came to an agreement that the Forest Service would not start any work on that project until next June, and to give the plaintiffs notice before any work gets underway.

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