The Darby Lumber Lands Phase II Project, a vegetation management project located east of Darby on the Bitterroot National Forest, may proceed following a ruling mostly in favor of the U.S. Forest Service by U.S. District Court Judge Dana Christensen. Friends of the Bitterroot filed a lawsuit in August challenging the legality of the timber sale associated with the project.
The timber sale will harvest timber from 959 acres, build 4.3 miles of new permanent road and another 8 miles of temporary road. About 334 acres will be thinned and another 1,294 treated with prescribed fire. The proposal calls for decommissioning 39 miles of road and 4.7 miles of trail. About two miles of off-highway-vehicle trails will be constructed to connect into the current trail and road system.
It is a continuation of the watershed improvement and transportation work conducted in the Darby Lumber Lands Phase I Project, and was developed, according to the agency, to design and implement a suitable transportation system for the area, improve forest health and stand resilience, reduce potential fire severity, and provide timber products and related jobs.
The area encompasses former privately-owned lands which, prior to acquisition by the Forest Service, were managed for heavy timber production resulting in an extensive road network throughout the area. Many of these roads were not built to Forest Service standards and have not been properly maintained, resulting in heavy sedimentation.
To accomplish its goals, the Forest Service issued a project-specific forest plan amendment to exempt the project from compliance with Forest Plan standards related to elk habitat effectiveness and thermal and hiding cover.
FOB challenged the project on a number of issues including failure to properly identify the “minimum road system” that would be required to meet resource and other management objectives and to meet applicable statutory and regulatory requirements, to reflect long-term funding expectations, and to ensure that the identified system minimizes adverse environmental impacts associated with road construction, reconstruction, decommissioning, and maintenance.
Christensen notes that the law requires the court to extend the agency a lot of deference in its decisions in these cases if the agency’s decision appears “reasonable.” In this case the agency is proposing to build miles of temporary road within a management area in which road building is prohibited.
The Forest Service argued that it does not construe temporary road construction to violate Area 8b’s prohibition on road construction because “[t]emporary roads are not considered Forest System roads; they are rehabilitated and returned to the productive land base upon completion of harvest activities.” In sum the Handbook states that a temporary road is “not a forest road” while a National Forest System Road is “a Forest road.”
“Because the Forest Plan specifically applies to ‘system’ roads, it was reasonable for the Forest Service to conclude that the construction of temporary roads does not create National Forest System Roads and is therefore not prohibited by the Forest Plan—an interpretation that is entitled to ‘substantial deference’,” wrote Christensen.
Turning first to the standards addressing elk habitat effectiveness, Christensen noted that the Forest Service determined that overall the project’s road work would have a net reduction in roads and will decrease overall road density in the Project area which is expected to benefit elk populations as fewer roads offers greater security and decreases the number of hunters in an area.
“Contrary to Plaintiff’s argument,” wrote Christensen, “the Forest Service did not arbitrarily fail to replace the elk habitat effectiveness standards with another protective standard because it determined that elk populations were sufficiently protected even in the absence of those standards.”
Addressing the standard relating to thermal and hiding cover, the Court noted that the Forest Service explained that at the time this standard was developed, thermal cover was believed necessary to winter-time survival rates, however, more recent research calls that belief into question. Cook et al. (1998) found “no significant positive effect of thermal cover” on winter-time elk survival.
“The Forest Service also explained that over 80% of sub-watersheds in the Project area currently do not meet the thermal cover Forest Plan standard. Yet, despite this, elk populations continue to thrive in the Project area which has caused the Forest Service to question the necessity of the standard relating to winter range thermal cover.”
Turning to hiding cover, the Forest Service disclosed that currently 50% of sub-watersheds are below hiding cover standards, yet population numbers continue to remain robust. In sum, the Forest Service concluded that the Project will generally improve elk habitat and that “population growth [has] not [been] significantly adversely affected by not meeting Forest Plan standards.” Given this conclusion, it was not necessary for the Forest Service to provide replacement standards for those it withdrew, wrote Christensen.
On the basis of this reasoning, Christensen found in favor of the Forest Service on the issues of elk habitat effectiveness, road building, thermal cover and hiding cover and determined that the agency did not violate its Forest Plan in approving those amended actions.
Christensen ruled in favor of the Friends of the Bitterroot on the last issue, however, which was the agency’s failure to conduct the required analysis for establishing a “minimum road system” as required by law. Christensen rejected the agency’s attempt to “tier” the Environmental Assessment to the Bitterroot Travel Management Plan. He notes that the Travel Management Plan does not contain any discussion of the legal requirements that guide the development of the minimum road system as “the Travel Management Planning Project [does] not establish a ‘minimum road system.’
“Defendants’ contention, then, that the Environmental Assessment may be tiered to the Travel Management Plan’s discussion of operation, maintenance, and funding of its road system, is inapposite as the Travel Management Plan does not contain any discussion of these factors as applicable to the development of a minimum road system. Moreover, any analysis contained in the Darby Lumber Lands Travel Analysis Report cannot cure any deficiencies in the Environmental Assessment because it is well settled that a site-specific project may not tier to a non-NEPA document,” wrote Christensen.
Because the Court found a NEPA violation, it did not address FOB’s remaining arguments concerning the lack of transparency regarding the number of roads present in the Project area, the number of roads adopted by the minimum road system, and how that number compares to the recommendation made in the Travel Analysis Report, except to say the record could be clearer.
In the end, however, Christensen did not find this violation serious enough to hold up the project as it was approved concerning the other issues.
“Having found an unlawful minimum road system, it does not necessarily follow that the Project’s Decision Notice must be vacated and remanded for the Forest Service to try again,” he wrote. “At oral argument, Plaintiff and Defendants both agreed that the decision to implement a minimum road system is wholly discretionary.” Christensen noted that at least one district court has already implied that the appropriate remedy in such a circumstance was simply to “set aside” that portion of the final decision.
“Because the Court has found no other violations of the Project, the Court will adopt that remedy here,” wrote Christensen. “The Court will remand without vacatur and instruct the Forest Service to strike any language in the Decision Notice which refers to the implementation of a minimum road system. If the Forest Service wishes to adopt a minimum road system for the Project area, it may do so in a supplemental environmental assessment or as a stand-alone Project. Either way, the error does not reach a magnitude that warrants halting the progress of an otherwise valid action.”