A lawsuit was filed July 10 in Federal District Court in Missoula challenging the legality of the Bitterroot National Forest’s 55,147-acre Gold Butterfly project and asking the court for injunctive and declaratory relief to stop the proposed timber sales associated with the project. Friends of the Bitterroot and Alliance for the Wild Rockies claim in their suit that the decision was arbitrary and capricious and in violation of the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), and the Healthy Forest Restoration Act and the Administrative Procedures Act (APA).
The Gold Butterfly project is located east of Corvallis, in the Sapphire Mountains. The Forest Service project calls for commercial logging on 5,461 acres, clearcutting across wide swaths of forest, prescribed burning activities on 4,854 acres and non-commercial logging of smaller trees on 5,040 acres.
The environmental groups claim in their lawsuit that the Forest Service failed to adequately assess the potential impacts of the project on endangered species such as grizzly bear, wolverine and bull trout by failing to formally consult with the U.S. Fish and Wildlife Service about those potential impacts.
The groups argue, for instance, that by ignoring the impacts of closed roads on grizzly bear movements, a practice condemned in the Grizzly Bear Recovery Plan, the agency is misrepresenting the true road density in the area and ignoring the role that closed roads play in preventing grizzly bears from re-occupying the designated recovery area.
As an example of this “misleading numbers game” they point to the fact that the Project Biological Assessment states that open road density is 0.83 miles/square mile. However, the Forest Plan Biological Assessment & Biological Opinion used a different analysis unit and found that open road density was 1.5 miles/square mile, which is too high to ensure species viability for grizzly bears according to the Boulanger study cited at length in the Forest Plan Biological Assessment. And, according to the Project Wildlife Specialist Report, when open road density is assessed at the scale of third order drainages, the open road density can be as high as 3.7 miles/square mile.
According to Mike Garrity, Executive Director of the Alliance for the Wild Rockies, such high open road density certainly acts as a barrier to any grizzly bear attempting to travel to the Bitterroot Recovery Zone. Yet, he claims, there is no real analysis of this issue.
Garrity said that the logging plan calls for adding over 20 miles of permanent roads to the legal road system in the project area.
“To put that in perspective,” he said, “to legally comply with the Endangered Species Act, the US Fish & Wildlife Service has already told the Forest Service that they can only build 17.1 miles of new permanent roads from 2019-2029 – and that’s across the entire Bitterroot National Forest east of Highway 93. The reason this is so important is because most grizzly bears are killed near logging roads, and the scientists and the courts have long acknowledged that grizzly bears need secure, unroaded habitat to avoid extinction. If the Forest Service doesn’t rectify its ESA violations, we’ll amend our lawsuit after 60 days to include the ESA issues.”
In the case of wolverines, the groups claim that the Forest Service is using outdated scientific research. They claim that no research done after 2012 was used in the project analysis and the latest research undermines the agency’s original assumptions that oil and gas exploration, timber harvesting and burning do apparently impact wolverine populations negatively.
“Accordingly, the agencies can no longer in good faith ignore the impacts on wolverine from oil and gas exploration, forest harvest, or burning. The agencies are obligated to conserve the wolverine, and to do that effectively requires ‘managing landscape development,’ not ignoring it and pretending it poses no threats to wolverines,” they state in their lawsuit.
They criticize the agency for not consulting formally with USFWS over the recognized impacts that are likely to adversely affect bull trout because, although the Forest Service found that the overall effect of the proposed action is beneficial to the listed species, it also found that it is likely to cause some adverse effects.
“Accordingly, the Forest Service must engage in formal consultation with FWS regarding bull trout critical habitat, resulting in a biological opinion that determines whether bull trout critical habitat will be adversely modified by the Project. The failure to conduct formal consultation for bull trout critical habitat violates the ESA,” they claim.
“Logging roads are notorious for dumping sediment into clean mountain streams and this project is no different. The new logging roads, clearcuts, and other logging will send sediment into area streams, which is in violation of the Endangered Species Act since the streams are in Federally-designated Bull Trout Critical Habitat,” it states in the press release.
The lawsuit is also critical of the agency’s suspension of the Forest Plan’s elk habitat effectiveness standards. Once again, the failure to properly assess the impacts of closed roads on wildlife plays a role in their reasoning. They claim the project analysis includes a vast roadless area and thus claims 71% secure habitat, but when compared to the analysis of elk security areas there is a dramatic difference – elk security is only 8%.
The groups claim, “There does not appear to be a calculation of closed roads anywhere in the Project record. Thus, the Project area does not meet the Hillis standard now, and the Project will move the area farther away from meeting this standard. These facts are not disclosed to the public in the Project EIS or Record of Decision despite the statement or implication in the EIS that Hillis’ elk security analysis is the best available science that the Bitterroot National Forest now uses to maintain elk viability.”
They claim the Forest Service fails to apply the substance of 36 C.F.R. §219.9 to the amendment, fails to determine whether the amendment substantially lessens protections for elk, fails to analyze whether elk should be treated as a species of conservation concern, fails to formally adopt Hillis as the elk standard that applies to the Project, fails to disclose what Hillis requires, fails to disclose that the Project does not comply with Hillis, and fails to disclose that Project implementation will further violate Hillis.
“In summary, the Forest Service has eliminated the prior elk habitat standard (habitat effectiveness) for this Project area and replaced it with nothing; although the agency mentions Hillis, it does not actually apply that science. There is no discussion as to how the Forest Service can meet its mandate to maintain or contribute to the maintenance of viable populations of elk in the area if there is no elk habitat standard at all that is actually applied to the area,” it states in the lawsuit.
Impacts on old growth are also a main contention raised in the lawsuit. The groups argue that the Forest Service failed to use the Forest Plan definition of old growth and failed to demonstrate compliance with the plan’s old growth standards for retention and viability.
They claim, “The Forest Service’s failure to take a hard look at this issue in the EIS and failure to fully and fairly disclose to the public in the EIS that it was applying an old growth definition significantly less protective than the Forest Plan old growth definition violates NEPA.”
“As the Ninth Circuit has held time and time again, the ‘scope of review does not include attempting to discern which, if any, of a validly-enacted Forest
Plan’s requirements the agency thinks are relevant or meaningful. If the Forest Service thinks any provision of the . . . Plan is no longer relevant, the agency
should propose amendments to the . . . Plan altering its standards, in a process complying with NEPA and NFMA, rather than discount its importance in environmental compliance documents’.”
The groups claim that by violating old growth requirements and elk habitat effectiveness and elk cover standards contained in the Forest Plan, the Forest Service cannot legally use the Healthy Forest Recovery Act to authorize the project. They claim that HFRA requires “maximizing the retention of old-growth.”
“In violation of 16 U.S.C. § 6591a (e), the Project allows the logging of old growth and large trees across hundreds of acres – old growth logging will occur on approximately 750 acres. Moreover, as discussed above in the First Claim for Relief, the Forest Service refused to use the Forest Plan definition of old growth for the Project and instead used a less protective definition. Thus, although the Forest Plan requires retention of ‘large trees, generally 15 per acre greater than 20 inches dbh for species other than lodgepole pine and 6 inches for lodgepole pine’ in order to qualify as old growth, the Project analysis only required 10 trees per acre greater than 20 inches dbh in Douglas fir forest type and 8 trees per acre greater than 20 inches dbh in ponderosa pine forest type in order to qualify as old growth.
“The Forest Plan definition also requires 75% canopy closure in old growth where possible, but the Project allows logging down to 33% canopy closure in old growth. In other words, by using a less protective old growth definition than what the Forest Plan actually requires, the Forest Service has minimized retention of old growth and large trees in the Project area, not maximized retention of old growth and large trees as required under the HFRA,” they wrote.
The groups are asking the court to declare the project violates the law and either vacate the project or enjoin implementation of the project. The ask the court to award costs, expenses and fees and attorney fees.
“Gold Butterfly is the largest, most destructive timber sale in decades on the Bitterroot National Forest,” said Jim Miller, President of Friends of the Bitterroot. “The project includes old growth logging, clearcutting, road building, destruction of wildlife habitat, and threatens spawning streams for endangered bull trout. Although it was broadly opposed by the public, the Forest Service ignored citizen input and a viable alternative that would have achieved the purpose of the project without seriously disrupting the ecological integrity of the area.”
The groups also point out that the project is being implemented at a high cost. The expected revenue from the project is estimated at $1,572,054 while the estimated costs of implementing it are estimated at $5,790,869 resulting in a net loss of $4.2 million.
“It makes absolutely no sense to go forward with this enormously expensive and environmentally destructive project given the nation’s current economic condition,” said Garrity. “As the Forest Service’s own data indicates — federal taxpayers will lose an unbelievable $4.2 million on the project. Significantly, this information was buried in internal agency documents, and the agency did not honestly disclose this number to the public in the Environmental Impact Statement.”
“It’s no wonder the vast majority of the thousands of people who commented opposed the Gold Butterfly project since it’s estimated to run 6,000 to 7,000 loaded logging trucks down Willow Creek Road,” Garrity concluded. “That’s a dirt road with people’s homes right next to it, which will significantly impact and endanger their lives and families. The Alliance and Friends of the Bitterroot stand with the thousands of citizens opposing this project and are exercising our first amendment rights to challenge the Forest Service’s decision in court.”
Bitterroot National Forest Supervisor Matt Anderson issued a statement, saying, “We have not had a chance to read the lawsuit thoroughly as we just received it. It is unfortunate that the project, which drew community support, has been litigated. This is an important project that improves forest health and water quality, reduces potential fire severity, and is good for our local economy and jobs. We believe we did our due diligence under the law.”