Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 1 of 42
`
`Rebecca K. Smith
`Public Interest Defense Center, P.C.
`P.O. Box 7584
`Missoula, MT 59807
`(406) 531-8133
`publicdefense@gmail.com
`
`Attorney for Plaintiff
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
`
`CV-20-
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`
`
`FRIENDS OF THE BITTERROOT,
`ALLIANCE FOR THE WILD
`ROCKIES,
`
`Plaintiffs,
`
`vs.
`
`MATT ANDERSON, Supervisor,
`Bitterroot National Forest; LEANNE
`MARTEN, Regional Forester, U.S.
`Forest Service Northern Region; U.S.
`FOREST SERVICE,
`
`Defendants.
`
`
`
`Rebecca K. Smith
`Public Interest Defense Center, P.C.
`P.O. Box 7584
`Missoula, MT 59807
`(406) 531-8133
`publicdefense@gmail.com
`
`Attorney for Plaintiff
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
`
`CV-20-
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`
`
`FRIENDS OF THE BITTERROOT,
`ALLIANCE FOR THE WILD
`ROCKIES,
`
`Plaintiffs,
`
`vs.
`
`MATT ANDERSON, Supervisor,
`Bitterroot National Forest; LEANNE
`MARTEN, Regional Forester, U.S.
`Forest Service Northern Region; U.S.
`FOREST SERVICE,
`
`Defendants.
`
`
`
`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 2 of 42
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`I. INTRODUCTION
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`1.
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`This is a civil action for judicial review under the Administrative Procedure
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`Act of the U.S. Forest Service’s (USFS) authorization of the Gold Butterfly
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`Project (Project) on the Bitterroot National Forest (Forest).
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`2.
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`Plaintiffs Friends of the Bitterroot and Alliance for the Wild Rockies attest
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`that the decision approving the Project is arbitrary and capricious, an abuse
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`of discretion, and/or otherwise not in accordance with law.
`
`3.
`
`Defendants’ approval of the Project violates the National Environmental
`
`Policy Act (NEPA), 42 U.S.C. §4331 et seq., the National Forest
`
`Management Act (NFMA), 16 U.S.C. §1600 et seq., the Healthy Forest
`
`Restoration Act, 16 U.S.C. §6591 et seq, and the Administrative Procedure
`
`Act (APA), 5 U.S.C. §§ 701 et seq.
`
`4.
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`Plaintiffs seek a declaratory judgment, injunctive relief, the award of costs,
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`and expenses of suit, including attorney and expert witness fees pursuant to
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`the Equal Access to Justice Act, 28 U.S.C. §2412, and/or such other relief as
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`this Court deems just and proper.
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`II. JURISDICTION
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`5.
`
`This action arises under the laws of the United States and involves the United
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`States as a Defendant. Therefore, this Court has subject matter jurisdiction
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`over the claims specified in this Complaint pursuant to 28 U.S.C. §§ 1331,
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`1346.
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`6.
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`An actual controversy exists between Plaintiffs and Defendants. Plaintiffs’
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`members use and enjoy the Forest for hiking, fishing, hunting, camping,
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`photographing scenery and wildlife, and engaging in other vocational,
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`scientific, spiritual, and recreational activities. Plaintiffs’ members intend to
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`continue to use and enjoy the area frequently and on an ongoing basis in the
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`future.
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`7.
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`The aesthetic, recreational, scientific, spiritual, and educational interests of
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`Plaintiffs’ members have been and will be adversely affected and irreparably
`
`injured if Defendants implement the Project. These are actual, concrete
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`injuries caused by Defendants’ failure to comply with mandatory duties
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`under NFMA, NEPA, HFRA, and the APA. The requested relief would
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`redress these injuries and this Court has the authority to grant Plaintiffs’
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`requested relief under 28 U.S.C. §§ 2201 & 2202, 5 U.S.C. §§ 705 & 706,
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`and 16 U.S.C. §1540.
`
`8.
`
`Plaintiffs fully participated in the available administrative review processes for
`
`the Project; thus they have exhausted administrative remedies. The Court
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`therefore has jurisdiction to review Plaintiffs’ APA claims.
`
`III. VENUE
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`9.
`
`Venue in this case is proper under 28 U.S.C. §1391(e) and Local Rule
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`2
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 4 of 42
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`3.2(b). Defendant Anderson resides in Ravalli County, which is within the
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`Missoula Division of the United States District Court for the District of
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`Montana.
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`IV. PARTIES
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`10.
`
`Plaintiff FRIENDS OF THE BITTERROOT is a tax-exempt, non-profit
`
`public interest organization based in Hamilton, Montana and dedicated to
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`preserving wildlands and wildlife, and protecting the forests and watersheds
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`of their region as they work for a sustainable relationship with the
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`environment. Members of the Friends of the Bitterroot observe, enjoy, and
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`appreciate native wildlife, water quality, and terrestrial habitat quality, and
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`expect to continue to do so in the future, including in the Project area. Their
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`members’ professional and recreational activities are directly affected by
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`Defendants’ failure to perform their lawful duty to protect and conserve
`
`these ecosystems. Friends of the Bitterroot brings this action on its own
`
`behalf and on behalf of its adversely affected members.
`
`11.
`
`Plaintiff ALLIANCE FOR THE WILD ROCKIES is a tax-exempt,
`
`non-profit public interest organization dedicated to the protection and
`
`preservation of the native biodiversity of the Northern Rockies Bioregion, its
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`native plant, fish, and animal life, and its naturally functioning ecosystems. Its
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`registered office is located in Missoula, Montana. The Alliance has over
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 5 of 42
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`2,000 individual members, many of whom are located in Montana. Members
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`of the Alliance observe, enjoy, and appreciate Montana’s native wildlife,
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`water quality, and terrestrial habitat quality, and expect to continue to do so
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`in the future, including in the Project area. Alliance’s members’ professional
`
`and recreational activities are directly affected by Defendants’ failure to
`
`perform their lawful duty to protect and conserve these ecosystems.
`
`Alliance for the Wild Rockies brings this action on its own behalf and on
`
`behalf of its adversely affected members.
`
`12. Defendant MATT ANDERSON is the Forest Supervisor for the Bitterroot
`
`National Forest, and is the decision-maker who signed the Record of
`
`Decision approving the Project.
`
`13. Defendant LEANNE MARTEN is the Regional Forester for Region
`
`One/Northern Region of the U.S. Forest Service. Her office denied
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`Plaintiffs’ objections to the Project.
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`14. Defendant UNITED STATES FOREST SERVICE (USFS) is an
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`administrative agency within the U.S. Department of Agriculture, and is
`
`responsible for the lawful management of our National Forests, including the
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`Bitterroot National Forest.
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 6 of 42
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`V. FACTUAL ALLEGATIONS
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`A. Project and Project Area
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`15.
`
`The Gold Butterfly Project area includes 55,147 acres of National Forest
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`System lands and is located within Ravalli County east of Corvallis, Montana
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`in the Sapphire Mountains on the Bitterroot National Forest.
`
`16.
`
`The Project area includes a portion of the Stony Mountain Inventoried
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`Roadless Area but no treatment activities will occur within the Inventoried
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`Roadless Area or Wilderness or Research Natural Areas.
`
`17.
`
`The Project authorizes commercial logging on 5,461 acres, including
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`clearcutting across wide swaths of forest.
`
`18.
`
`The Project also allows non-commercial activities such as cutting smaller
`
`trees and planting trees on 7,238 acres.
`
`19.
`
`20.
`
`The Project further allows prescribed burning activities on 4,854 acres.
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`In addition, the Project allows road maintenance on 80.1 miles, construction
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`of 6.4 miles of new system road, which will be closed to the public,
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`conversion of 0.22 miles of open public road to a non-motorized trail,
`
`decommissioning 5.8 miles of existing system roads, decommissioning of
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`16.5 miles of illegal “undetermined” roads, addition of 16.5 miles of illegal
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`“undetermined” roads to the system as closed roads, construction of 7.7
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`miles of temporary road, construction of 8.5 miles of tracked line machine
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`5
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 7 of 42
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`trail, construction of 1.1 miles temporary skid trail, and closure (storage) of 5
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`miles of system road.
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`21.
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`Finally, the Project will relocate two trailheads, create new horse campsites at
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`the Gold Creek Campground, and replace Arrastra and Grizzly Creek
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`culverts.
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`22.
`
`Regarding illegal roads, also referred to as “undetermined” roads, which are
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`not lawfully on the Forest as part of the National Forest roads system but
`
`nonetheless exist on the ground, the Gold Butterfly project has about 33
`
`miles total of these unlawful undetermined roads.
`
`23.
`
`The Project allows approximately 16.5 miles of these undetermined roads to
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`become part of the lawful transportation system and be stored, i.e. closed,
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`after logging operations. These roads would be opened to accommodate
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`commercial logging operations and log hauling in commercial logging units
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`for this Project.
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`24. Another 16.5 miles of these undetermined roads would be decommissioned.
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`25.
`
`Project activities would require the transport of approximately 6,000-7,000
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`truckloads of material.
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`26. All Project activities are expected to be completed within 8 years of Project
`
`initiation.
`
`27. All temporary roads and trails would be obliterated after use.
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`28.
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`Temporary roads and trails would be closed to public use by a closure order
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`during operations.
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`29.
`
`30.
`
`The Forest Service anticipates $1,572,054 in total revenue from the Project.
`
`The Forest Service anticipates the following costs from the Project:
`
`Sale Preparation
`Sale Administration
`Road BMP Upgrades
`Tree Planting
`Road Decommissioning
`Road Storage
`Meadow Restoration, Herbicide
`Meadow Restoration, Biocontrol
`Willow Trailhead Relocation
`Burnt Fork Trailhead Relocation
`Non-Commercial Thinning
`Non-Commercial Thinning, White Bark Pine
`Non-Commercial Thinning, Mechanical Fuels
`
`Reduction
`Maintenance Burn
`Restoration Burn
`
`Brush Disposal – Purchaser
`Brush Disposal – Forest Service
`Erosion Control
`Roadside Herbicide
`Temporary Roads
`Road Maintenance
`Unusual Condition Adjustment**
`Specified Roads -Construction
`Specified Roads - Reconstruction
`Road Decommissioning
`Road Storage
`
`-$732,432
`-$518,806
`-$321,761
`-$1,193,400
`-$1,000
`-$2,995
`-$1,000
`-$3,000
`-$36,200
`-$21,000
`-$78,995
`-$240,870
`-$52,325
`
`-$62,100
`-$521,600
`
`$72,933
`$715,809
`$151,481
`$60,900
`$86,722
`$261,234
`$150,511
`$381,739
`$102,782
`$3,440
`$15,830
`
`31.
`
`These costs add up to $5,790,869, which means the Project results in a net
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 9 of 42
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`loss of $4.2 million.
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`B. Procedural Background
`
`32.
`
`33.
`
`Scoping for the Project commenced on June 9, 2017.
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`The draft EIS was issued in June 2018, and the Forest Service accepted
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`public comment from June 15, 2018 to July 30, 2018.
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`34. Over 100 individuals, including dozens of local residents, submitted
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`comments on the draft EIS; the vast majority of commenters opposed the
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`Project and requested a different alternative, including one comment letter
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`signed by 3,000 members of the public. In summary, the majority of the
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`public requested an alternative with no old growth logging and no new roads.
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`The final EIS and draft Record of Decision were issued in March 2019.
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`The Forest Service held a pre-decisional administrative objection period from
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`35.
`
`36.
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`July 3, 2029 to August 8, 2019.
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`37.
`
`19 objections were filed against the Project.
`
`38. On September 3, 2019, the Forest Service denied the objections.
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`39. A revised final EIS was issued in October 2019.
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`40.
`
`The final Record of Decision was issued on November 15, 2019.
`
`C. Wildland Urban Interface Designation
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`41.
`
`The Record of Decision (ROD) states: “Approximately 90 percent of
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`treatment acres are within the insect and disease treatment area designated
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`under HFRA Title VI. Seventy-six percent of treated acres would occur
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`within the Wildland-Urban Interface.”
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`42.
`
`The Final EIS for the Project implies that the “Bitterroot Community Wildfire
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`Protection Plan (2006)” delineated the wildland urban interface used for the
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`Project.
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`43. However, there is no map in the EIS that clearly sets forth the wildland urban
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`interface as defined by the 2006 Bitterroot Community Wildfire Protection
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`Plan.
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`44. Although a new wildland urban interface map was proposed in a 2009 update
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`to the Bitterroot Community Wildfire Protection Plan, the Ravalli County
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`Commissioners did not approve the newer 2009/2010 wildland urban
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`interface map as described in a 2009 update to the Bitterroot Community
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`Wildfire Protection Plan. See “Will a twice-burned county change its
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`ways?,” High Country News (October 24, 2016); “County commissioners
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`decline to act on WUI,” Bitterroot Star (December 28, 2011); Ravalli County
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`Commissioners’ Meeting Minutes (December 20, 2011).
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`45.
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`The 2006/2007 Bitterroot Community Wildfire Protection Plan wildland
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`urban interface is defined as follows: “For the purposes of the CWPP, the
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`Wildland Urban Interface (WUI) is defined as the zone where structures or
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`other human development meet to intermingle with undeveloped wildland or
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`vegetative fuels. The width of the zone is determined on a site-specific basis
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`to protect values at risk from wildland fire. At-Risk Communities are those
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`communities identified and addressed in the CWPP that are considered at
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`risk by wildland fire. At-Risk Communities, as defined in the Healthy Forest
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`Restoration Act 2004, are comprised of: • An interface community as
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`defined in the notice “Wildland Urban Interface Communities Within the
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`Vicinity of Federal Lands That Are at High Risk From Wildfire” issued by
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`the Secretary of Agriculture and the Secretary of Interior in accordance with
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`Title IV of the U.S. Dept. of Interior and Related Agencies Appropriations
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`Act, 2001. OR • A group of homes and other structures with basic
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`infrastructure and services (such as utilities and collectively maintained
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`transportation routes) within or adjacent to Federal land AND • In which
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`conditions are conducive to large-scale wildland fire disturbance event AND
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`• For which a significant threat to human life or property exists as a result of
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`a wildland fire disturbance event. At-Risk Ravalli County communities
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`include: Florence, Stevensville, Victor, Pinesdale, Corvallis, Hamilton,
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`Darby, West Fork, Sula, and other areas where numerous residents live in the
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`Wildland Urban Interface in Ravalli County that meet the above mentioned
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`criteria.” The EIS does not disclose this wildland urban interface definition
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`or demonstrate that the Project wildland urban interface complies with this
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 12 of 42
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`definition.
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`46.
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`In contrast, the 2009/2010 Bitterroot Community Wildfire Protection Plan
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`wildland urban interface would have dramatically expanded the wildland
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`urban interface, and included a one-mile buffer zone along the entire National
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`Forest boundary, regardless of housing density.
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`47.
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`It appears from maps discovered in the Project file that the Forest Service
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`used the 2009/2010 wildland urban interface map rather than the 2006/2007
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`wildland urban interface map because the map used for the Project appears
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`to contain a one-mile buffer zone along the entire National Forest boundary,
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`regardless of housing density:
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`48.
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`The Project file received by Plaintiffs does not contain the 2006/2007
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`wildland urban interface map that is currently in effect in Ravalli County.
`
`49.
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`Instead, the Project file contains two maps that both set forth the 2009/2010
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`Bitterroot Community Wildfire Protection Plan wildland urban interface map,
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`which was never authorized by the Ravalli County Commissioners.
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`50.
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`In response to public concerns and questions regarding the Project and how
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`many people actually live adjacent to the Project area, the Forest Service
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`refused to disclose any such analysis and instead simply stated:
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`“Landownership including individual addresses for the WUI adjacent to the
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`project area are available through Ravalli County tax records and the
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`Montana Cadastral Mapping Project (http://svc.mt.gov/msl/mtcadastral).”
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`51.
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`In other words, although there is available data, the Forest Service did not
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`complete an analysis of the available data on human or structure density to
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`support its delineation of the Project wildland urban interface.
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`52.
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`Indeed, it appears that the vast majority of private land along the Project area
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`boundary is “vacant” agricultural land with no living units.
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`53. Accordingly, it is unclear how much, if any, of the Project area would meet
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`the definition of wildland urban interface from the 2006 Bitterroot
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`Community Wildfire Protection Plan, which adopts the statutory HFRA
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`definition and requires either an “interface community” or a “[a] group of
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`homes and other structures with basic infrastructure and services . . . .”
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`54.
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`The Federal Register notice cited in the HFRA defines “interface
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`community” as “3 or more structures per acre, with shared municipal
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`services” or “a population density of 250 or more people per square mile . . .
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`.” 66 Fed. Reg at 753, 2001 WL 7426.
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`D. Old Growth
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`55.
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`Lesica (1996) estimates that old growth occupied 20 – 50% of the
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`pre-settlement forest landscape in low and many mid elevation habitats, and
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`between 18 and 37% in mid to upper elevation habitats.
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`56.
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`The Project EIS discloses that the Sapphire area currently has only 10% old
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`growth, which is significantly less than historic conditions regardless of
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`elevation.
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`57. Arno et al. (1995b) states that old growth ponderosa pine was abundant in
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`the accessible lower elevation valleys and mountain slopes in western
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`Montana and has been logged heavily for more than 100 years. They suggest
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`that less than one percent of the old growth seral ponderosa pine type in
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`western Montana has no history of logging.
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`58.
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`Logging in the Bitterroot Valley started in the late 1840's and continued
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`through the 1870’s. Early logging was mostly to produce logs and other
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`wood products for use by local farmers and ranchers. This subsistence
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`logging took the most accessible timber from the foothills and lower slopes
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`of the Bitterroot Mountains. Once nearby timber was exhausted, the mills
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`were dismantled and moved to a new location.
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`59.
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`In the 1880’s through the early 1900’s the Bitterroot’s lumber industry
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`expanded from subsistence logging and milling for local use to providing
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`mass quantities of timber and lumber for hardrock mines, railroads and
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`growing cities throughout Montana. Completion of the railroad to its
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`terminus at Darby in 1889 allowed lumber companies to exploit timber on a
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`large scale from the upper valley, along Tin Cup Creek and the West Fork of
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`the Bitterroot. The logging by the Anaconda Copper Company was
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`extensive. In some areas “Nothing is left standing, for every tree over 6
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`inches in diameter is converted into lumber.”
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`60.
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`This historic logging dramatically reduced the amount of old growth in the
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`Bitterroot drainage, particularly the ponderosa pine in the lower elevations,
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`and explains the lack of old growth in some 3rd order drainages today.
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`61. Old growth habitat in the Gold Butterfly Project area is composed largely of
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`forest types dominated by Douglas-fir and ponderosa pine at lower to mid
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`elevations, and Douglas-fir, Engelmann spruce and subalpine fir at mid to
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`upper elevations.
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`62.
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`The Project analysis indicates that old growth distribution within the Project
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`area fails the applicable Forest Plan Standards for old growth habitat in one
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`of the third order drainages designated as “Management Area 1,” and four of
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`the third order drainages designated as “Management Area 2.”
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`63.
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`The Project EIS represents that the Project will allow commercial logging of
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`approximately 750 acres of old growth forest, including approximately 350
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`acres of clear-cutting.
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`64.
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`In contrast, the Record of Decision states that no clear-cutting, i.e.
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`“regeneration harvest,” will occur in old growth, though commercial logging
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`will still occur in 750 acres of old growth forest.
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`65.
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`The Record of Decision represents that the new logging prescription for
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`these old growth areas formerly proposed for clearcutting is to “leav[e] most
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`of the large green trees and snags while removing mostly co-dominant and
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`intermediate trees that show symptoms of susceptibility to western spruce
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`budworm and/or other insects and diseases. In addition . . . create canopy
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`openings around dominant ponderosa pine trees to encourage natural
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`regeneration of ponderosa pine.” Additionally, two former clearcutting units
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`(111 acres) in old growth will now be non-commercial, and “would remove
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`target specie(s) within a unit up to a certain diameter limit.”
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`66. More specifically, internal agency meeting notes state that old growth logging
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`will “remov[e] ½ to 2/3 of the basal area.”
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`67.
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`Internal agency meeting notes further indicate that the criteria the Forest
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`Service will use to determine whether a logged stand still counts as old
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`growth “for most of the units is 8 TPA [trees per acre] over 21” dbh and 170
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`years or older” and “Whitebark pine and subalpine fir old growth
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`requirements are 10 [trees per acre] > 13” dbh.”
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`68.
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`Internal agency meeting notes further estimate “that at least 1/3 or slightly
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`more of the overstory will remain in many of the units.”
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`69.
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`The public was concerned about old growth logging, and noted in comments
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`on the draft EIS that “[t]he DEIS does not provide a diameter limit on trees
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`to be cut in old growth stands. The DEIS fails to explain how this meets
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`HFRA requirements.”
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`70.
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`In response, the Forest Service stated: “Title VI of the Healthy Forest
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`Restoration Act requires the project to maximize the retention of old growth
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`and large trees, as appropriate for the forest type, to the extent that the trees
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`promote stands that are resilient to insect and disease. A diameter limit is not
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`specified in the HFRA language.”
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`71. Other than the two sentences quoted above, there is no analysis in the EIS
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`for the Project regarding how old growth logging across 750 acres could be
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`consistent with the HFRA mandate requiring maximum retention of old
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`growth and large trees.
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`72.
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`Internal agency meeting notes found: “During our conversations, it became
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`obvious that it is difficult to definitively say that that old growth
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`characteristics would be retained following treatment. Any treatment activity
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`(e.g., logging, burning, etc.) has the potential to remove stands from old
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`growth.”
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`73.
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`Internal agency meeting notes further found: (1) “Have to verify old growth
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`by measurement, not possible to use satellite imagery[;]” (2) “Cannot
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`determine which units are old growth or the distribution of old growth until
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`all the data is collected and processed[;]” and (3) “Cannot determine the
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`need for treatment or type of treatments in old growth stands until data is
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`collected and processed.”
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`74.
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`The HFRA only allows projects under 16 U.S.C. § 6591a (d) in order to
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`“reduce the risk or extent of, or increase the resilience to, insect or disease
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`infestation” or “reduce hazardous fuels.” Additionally, the area where the
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`project occurs must be at risk of “substantially increased tree mortality due
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`to insect or disease infestation” or at risk of “dieback due to infestation or
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`defoliation by insects or disease” or “in an area in which the risk of hazard
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`trees poses an imminent risk to public infrastructure, health, or safety.”
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`75.
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`The Forest Plan defines “salvage harvest” as “the cutting of trees that are
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`dead, dying, or deteriorating (e.g., because they are overmature or materially
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`damaged by fire, wind, insects, fungi, or other injurious agencies) before they
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`lose their commercial value as sawtimber.”
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`76.
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`The Forest Plan defines “sanitation harvest” as “the removal of dead,
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`damaged, or susceptible trees, essentially to prevent the spread of pests or
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`pathogens and so promote forest hygiene.”
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`77.
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`Forest Plan Forest-wide Management Standard (1)(e)(6) states: “Sanitation
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`and salvage harvests may occur in stands classified as old growth if old
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`growth characteristics are retained after logging.”
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`78.
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`Forest Plan Forest-wide Management Standard (1)(e)(2) states: “Stand
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`conditions that qualify as old growth will vary by habitat type and landform.
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`17
`
`
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 19 of 42
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`Criteria to consider for identifying old growth include:
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`large trees, generally 15 per acre greater than 20 inches dbh for species
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`other than lodgepole pine and 6 inches for lodgepole pine;
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`canopy closure at 75 percent of site potential;
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`stand structure usually uneven-aged or multistoried;
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`snags, generally 1.5 per acre greater than 6 inches dbh and .5 per acre
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`greater than 20 inches;
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`more than 25 tons per acre of down material greater than 6 inches
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`diameter;
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`heart rot and broken tops in large trees are common; and
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`mosses and lichens are present.”
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`79.
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`The Forest Plan also provides the following definition of old growth: “A
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`forest stand with 15 trees per acre greater than 20 inches dbh (6 inches in
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`lodgepole pine) and canopy closure that is 75 percent of site potential. The
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`stand is uneven-age or multistoried. There should be 1.5 snags per acre
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`greater than 6 inches dbh; 0.5 snags per acre greater than 20 inches dbh; and
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`25 tons per acre of down material greater than 6 inches diameter. Heart rot
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`and broken tops are common and mosses and lichens are present.”
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`80.
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`In the Project EIS, the Forest Service admitted that it was not using the
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`Forest Plan criteria/definition of old growth, but rather using an alternative
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`18
`
`
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 20 of 42
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`definition set forth in an internal agency document that has never been peer-
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`reviewed, subjected to NEPA, or amended to the Forest Plan: “old growth
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`criteria used were the more current R1 definitions in Green et al. (1992, errata
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`2005).”
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`81.
`
`Public commenters requested that the Forest Service clarify how the Project
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`will retain the old growth characteristics required by the Forest Plan. In
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`response, the Forest Service refused to address the issue in the EIS, and
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`instead directed the public to a document in the Project file S the “Wildlife
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`Specialist Report, pages 10-16 (PF-WILD-001).”
`
`82.
`
`The Wildlife Specialist Report at pages 10-16 does not disclose the Forest
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`Plan old growth definition/criteria or apply them, nor does it disclose the
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`actual criteria used to assess old growth for the Project area.
`
`83.
`
`Consistent with the agency meeting notes quoted above, a document in the
`
`project file designated as SILV-013 indicates that the following criteria were
`
`used to calculate old growth for the Project:
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`•
`
`•
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`•
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`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
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`forest type;
`
`no requirements for canopy closure;
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`no requirements for uneven-aged or multi-storied structure;
`
`19
`
`
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 21 of 42
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`•
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`•
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`•
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`•
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`no requirements for snags per acre over 6 inches dbh or snags per
`
`acre over 20 inches dbh;
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`no requirements for tons per acre for down material greater than 6
`
`inches diameter;
`
`no requirements for heart rot and broken tops;
`
`no requirements for mosses and lichens.
`
`84. Accordingly, the old growth criteria used for the Project are significantly less
`
`protective than the old growth definition and criteria set forth in the Forest
`
`Plan standard, although the Forest Service never clearly disclosed that fact to
`
`the public.
`
`85.
`
`In particular, the Forest Plan mandates 15 large trees per acre for old growth,
`
`but the Forest Service old growth calculations for the Project only require 8
`
`or 10 large trees per acre; also, the Forest Plan mandates 75% canopy
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`closure, while the agency indicates the Project will only retain 33% canopy
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`closure.
`
`86.
`
`The Forest Plan further mandates that in Management Area 1, old growth
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`must be in stands of at least 40 acres, and must comprise at least 3% of each
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`third order drainage.
`
`87.
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`The Forest Plan further mandates that in Management Areas 2 and 3a and 3c,
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`old growth must be in stands of at least 40 acres, and must comprise at least
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`20
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`
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 22 of 42
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`8% of each third order drainage.
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`88.
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`The Forest Plan further mandates that in Management Areas 3b old growth
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`must be in stands of at least 40 acres, and must comprise either 25% or 50%
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`of riparian areas.
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`89. Neither the Project EIS nor the Wildlife Specialist Report discloses whether
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`all old growth acres counted in the Project area occur in stands of 40 acres
`
`or more.
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`90. A document in the Project file designated as SILV-006 appears to find that a
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`number of stands are counted as old growth although they are less than 40
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`acres.
`
`91. Without application of the Forest Plan old growth definition and criteria and
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`the 40-acre stand size minimum, it is unclear how many drainages actually
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`meet the Forest Plan old growth retention standards now or post-Project,
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`and thus it is not possible to determine whether old growth logging is
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`proposed for drainages that currently violate the Forest Plan old growth
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`standards.
`
`92. Moreover, if all areas designated for old growth logging by the Project are
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`logged down to the Project old growth criteria, none of those areas will
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`comply with the Forest Plan definition of old growth post-Project.
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`21
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`
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 23 of 42
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`E. Elk
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`93. Many elk in this area winter on private lands several miles to the west of the
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`Project area. Some of these elk travel through the Project area during their
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`spring or fall migrations between winter range and summer range high in the
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`Sapphires. However, many of the elk in HD 261 have essentially become
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`year-round residents on lower elevation private lands, and no longer migrate
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`to summer ranges due to the high road density on public lands.
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`94.
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`In terms of population, the ten-year average from elk counts in the area (722)
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`is below the elk count for the same area in 1987, when the Forest Plan was
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`approved (792).
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`95.
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`Forest Plan Forest-wide Management Standard (1)(e)(14) states: “Manage
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`roads through the Travel Plan process to attain or maintain 50 percent or
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`higher elk habitat effectiveness (Lyon, 1983) in currently roaded third order
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`drainages. Drainages where more than 25 percent of roads are in place are
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`considered roaded. Maintain 60 percent or higher elk habitat effectiveness in
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`drainages where less than 25 percent of the roads have been built.”
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`96.
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`Six different drainages in the Project area violate the Forest Plan elk habitat
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`effectiveness standard.
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`97.
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`The Project Record of Decision states: “Implementation of the Selected
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`Alternative, as modified, will require a project-specific forest plan
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`22
`
`
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`Case 9:20-cv-00104-DLC Document 1 Filed 07/10/20 Page 24 of 42
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`amendment to the 1987 Bitterroot Forest Plan to suspend certain Forest Plan
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`standards relating to elk habitat effectiveness and thermal cover. Discussion
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`concerning the plan amendment and its effects is found in Appendix D of the
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`Gold Butterfly FEIS.”
`
`98.
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`The Forest Service states: “The plan amendment is guided by the 2012
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`Planning Rule, which has different provisions from the 1982 Planning Rule
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`procedures that the Forest Service used to develop the existing forest plan.”
`
`99.
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`Public commenters raised the concern that the EIS “fails to document an
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`analysis consistent with the 2012 Planning Rule regarding amendments” and
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`that the Forest Service failed to “use the best available scientific information
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`to inform the amendment process.”
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`100. Public commenters further stated: “The purpose of the amendments, as
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`stated in the FEIS, is ‘to allow six third order drainages in the analysis area to
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`not meet EHE standards’. . . . To merely ‘allow’ deviation of the Forest
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`Plan is not adequate justification . . . .”
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`101. The 2012 NFMA planning regulations require:
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`(b) Amendment requirements. For every plan amendment, the
`responsible official shall:
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`(5) Determine which specific substantive requirement(s)
`within §§ 219.8 through 219.11 are directly related to the plan
`direction being added, modified, or removed by the
`amendment and apply such requirement(s) within the scope
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`23
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`
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`Case 9:20-cv-0
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