Timber project moves one step closer

The East Reservoir timber project moved one step closer to completion April 19, when United States District Judge Dana Christensen heard oral arguments on motions for summary judgment from both parties and supporting intervenors.

The timber project is being challenged by Alliance for the Wild Rockies, and names the United States Forest Service, the United States Deparment of Agriculture, Kootenai National Forest Supervisor Christopher Savage and Faye Krueger, Region One Forester of the U.S. Forest Service. Lincoln County and the Kootenai Forest Stakeholders Coalition have filed as defendant-intervenors in support of the project.

The project, according to the Forest Service documentation, calls for timber harvest and associated fuel treatment on approximately 8,845 acres, including intermediate harvest on approximately 5,387 acres and regeneration harvest on approximately 3,458 acres to re-establish, restore and retain landscapes that are more resistant and resilient to disturbance and uncertain environmental conditions such as climate change; create a heterogeneous landscape that provides a variety of habitats to sustain populations of terrestrial and aquatic species; reduce hazardous fuels adjacent to private property and across the landscape while re-introducing fire to the ecosystem and contribute timber to the local and regional economy. This harvest is dispersed over the 92,407 acre project area. These activities will contribute approximately 78,761 hundred cubic feet (CCF) of timber products to the economy. Approximately 91 percent of this harvest will be accomplished with ground-based systems and nine percent by skyline yarding. An estimated 37 percent (approx. 3,310 acres) of the harvest will be restricted to winter harvest to protect resources.

It also calls for precommercial thinning on approximately 5,775 acres to improve growing conditions and increase composition of shade-intolerant species in managed sapling-sized stands.

The project includes approximately 10,049 acres of burning and/or slashing over the next 10 years to enhance wildlife habitat (bighorn sheep escape habitat and foraging), increase ungulate browse and to reduce hazardous fuels. These treatments and will be spaced over time to avoid displacing big game from the entire burn area at any given time. These treatments have been covered under previous planning documents associated with the Forestwide Fuels Programmatic Environmental Assessment. It also adds planting of conifer seedlings on approximately 3,346 acres in this decision.

Alliance for the Wild Rockies has the court to enjoin the project on the grounds the Record of Decision, signed by Savage, violated several laws and administrative procedures.

“Plaintiff Alliance for the Wild Rockies (Alliance) attests that the agencies’ conduct is arbitrary and capricious, an abuse of discretion, and/or otherwise not in accordance with the law, in violation of the National Environmental Poilcy Act (NEPA), the National Forest Management Act (NFMA), the Endangered Species Act (ESA) and the Administrative Procedures Act (APA),” attorney Rebecca Smith wrote in the motion. “Alliance requests that the court enjoin the project because it violates these laws and because it will further harm the public by resulting in a net loss to the federal taxpayer of over $2.5 million.”

The plaintiff alleged the federal agencies failed to properly account for potential damage to bull trout, grizzly bear and lynx populations and the critical habitat of those species. They further alleged the Forest Service failed to properly analyze wildlife security, roads and motorized trails in the Environmental Impact Statement.

Attorneys for the agencies responded, arguing the United States Forest Service followed all state and federal guidelines.

“During the NEPA process, the United States Forest Service consulted with the Fish and Wildlife Service on the grizzly bear and Canada lynx, and other listed species as required by the Endangered Species Act,” attorney John Tustin wrote in the agencies’ motion. “In accordance with NEPA and agency regulations, U.S.F.S. engaged in a robust public process to solicit stakeholder input. The project will reestablish, restore and retain landscapes more resistant and resilient to disturbance; create a heterogeneous landscape for wildlife; reduce hazardous fuels; contribute to the economy and enhance recreation opportunities.”

Tustin asked the judge to dismiss the suit, claiming the plaintiffs failed to adequately participate in the administrative process and then, belatedly, engaged in a strategy to frustrate the process.

“Plaintiff Alliance for the Wild Rockies alleges federal defendants violated NEPA, the ESA, the National Forest Management Act and the Administrative Procedures Act,” he wrote. “Plaintiff nominally participated in the administrative process, but then raised many specific project-level concerns only after U.S.F.S. issued the Record of Decision. Plaintiff now seeks reversal of the agency decision based on these belatedly-raised concerns, as well as other issues that amount to flyspecking the decision and re-litigating arguments rejected by this court. Plaintiff’s non-compliance frustrates the administrative process, strains U.S.F.S. and judicial resources and prevents review in this forum. On the merits, both agencies complied with applicable law.”

Lincoln County and the Kootenai Forest Stakeholders Coalition joined the suit as defendant-intervenors, adding additional arguments to the case in support of the federal agencies and the Record of Decision. Attorneys Lawson Fite and Matt Cuffe represented the intervenors in court. Coalition chair Robyn King said the coalition decided to get involved in the suit because the project was fully vetted by a diverse coalition of people and organizations with a vested interest in the forest.

“The Kootenai Forest Stakeholders Coalition presented argument to the court in support of the East Reservoir project,” King said. “We are grateful to Judge Christensen for the opportunity to participate and we were heartened to see that the court was carefully considering the legal issues.  We highlighted the role of the Stakeholders participation in the NEPA process and how that involvement improved the projects objectives to protect and enhance wildlife habitat and connectivity and old growth forests and meeting recreation and forest health objectives.  We also emphasized the hard work that went into reaching agreement within our Stakeholders partners, and highlighted the importance of the project to northwest Montana’s economy.  The project is an important step toward fully engaging in the collaborative process that is supported by the NEPA  process and we are hopeful the court will recognize that fact.”

Cuffe said there is no set timeline in which they expect the judge to rule.