throbber
Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 1 of 39
`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 1 of 39
`Kristine M. Akland
`
`AKLAND LAW FIRM, PLLC
`
`PO. Box 7274
`
`Missoula, MT 59807
`
`(406) 544-9863
`
`aklandlawfirm@gmail.com
`
`Attorney for Plaintiff
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF MONTANA
`
`MISSOULA DIVISION
`
`
`ALLIANCE FOR THE WILD ROCKIES
`
`
`
`CV-
`
`COMPLAINT FOR INJUNCTIVE
`
`AND DECLARATORY RELIEF
`
`
`
`
`
`Plaintiff,
`
`,
`
`vs.
`
`LEANNE MARTEN, Regional Forester
`of Region One of the US. Forest Service,
`
`UNITED STATES FOREST SERVICE,
`
`and , UNITED STATES FISH AND
`
`WILDLIFE SERVICE,
`
`Defendants.
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 2 of 39
`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 2 of 39
`
`This is a civil action for judicial review under the citizen suit provision
`
`of the Administrative Procedure Act (APA) which stems from the US.
`
`Forest Service’s (Forest Service) authorizations, analyses, and lack
`
`thereof on the Lolo National Forest (Forest) related to and regarding
`
`the Environmental Assessment and Decision Notice and Finding of No
`
`Significant Impact for the Soldier-Butler Project (Project).
`
`Plaintiff Alliance for the Wild Rockies (“Alliance”) attests that the
`
`decisions approving the challenged authorizations, analyses, and lack
`
`thereof are arbitrary and capricious, an abuse of discretion, and/or
`
`otherwise not in accordance with law.
`
`Defendants’ actions or omissions violate 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., and the
`
`Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq.
`
`Plaintiff requests that the Court set aside the Project pursuant to 5
`
`U.S.C. §706(2)(A) and enjoin implementation of the Project.
`
`Plaintiff seeks a declaratory judgment, injunctive relief, the award of
`
`costs and expenses of suit, including attorney and expert witness fees
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 3 of 39
`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 3 of 39
`
`pursuantto the Equal Access to Justice Act, 28 U.S.C. § 2412, and
`
`such other relief this Court deems just and proper.
`
`I.
`
`JURISDICTION
`
`6.
`
`This action arises under the laws of the United States and involves the
`
`United States as a Defendant. Therefore, this Court has subject matter
`
`jurisdiction over the claims specified in this Complaint pursuant to 28
`
`U.S.C. §§ 1331,1346.
`
`7.
`
`An actual controversy exists between Plaintiff and Defendants.
`
`Plaintiff’s members use and enjoy the Lolo National Forest for hiking,
`
`fishing, hunting, camping, photographing scenery and Wildlife, and
`
`engaging in other vocational, scientific, spiritual, and recreational
`
`activities. Plaintiff’s members intend to continue to use and enjoy the
`
`area frequently and on an ongoing basis in the future.
`
`8.
`
`The aesthetic, recreational, scientific, spiritual, and educational
`
`interests of Plaintiff’s members have been and will be adversely
`
`affected and irreparably injured if Defendants implement the Project.
`
`These are actual, concrete injuries caused by Defendants’ failure to
`
`comply with mandatory duties under NEPA, NFMA, and the APA. The
`
`requested relief would redress these injuries and this Court has the
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 4 of 39
`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 4 of 39
`
`authority to grant Plaintiff’s requested relief under 28 U.S.C. §§ 2201
`
`& 2202, and 5 U.S.C. §§ 705 & 706.
`
`Plaintiff submitted timely written comments and objections
`
`concerning the Project in the available administrative review process,
`
`thus it has exhausted administrative remedies. Therefore, the Court
`
`has jurisdiction to review Plaintiff’s APA claims.
`
`11.
`
`VENUE
`
`10.
`
`Venue in this case is proper under 28 U.S.C. § l39l(e) and Local Rule
`
`3.3(a)(l). Defendant Marten resides within the Missoula Division of
`
`the United States District Court for the District of Montana.
`
`111.
`
`PARTIES
`
`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 native plant, fish, and animal life, and its naturally
`
`functioning ecosystems. Its registered office is located in Missoula,
`
`Montana. The Alliance has over 2,000 individual members, many of
`
`whom are located in Montana. Members of the Alliance observe,
`
`enjoy, and appreciate Montana’s native wildlife, water quality, and
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 5 of 39
`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 5 of 39
`
`terrestrial habitat quality, and expect to continue to do so in the future,
`
`including in the Project area in the Lolo National Forest. Alliance’s
`
`members’ professional and recreational activities are directly affected
`
`by Defendants’ failure to perform their lawful duty to protect and
`
`conserve these ecosystems as set forth below. Alliance for the Wild
`
`Rockies brings this action on its own behalf and on behalf of its
`
`adversely affected members.
`
`12.
`
`Defendant LEANNE MARTEN is the Regional Forester for the
`
`Northern Region/Region One of the US. Forest Service, and in that
`
`capacity is charged with ultimate responsibility for ensuring decisions
`
`made at each national forest in the Northern Region, including the Lolo
`
`National Forest, are consistent with applicable laws, regulations, and
`
`official policies and procedures.
`
`l3.
`
`Defendant UNITED STATES FOREST SERVICE (Forest Service) is
`
`an administrative agency within the US. Department of Agriculture,
`
`and is responsible for the lawful management of our national forests,
`
`including the Lolo National Forest.
`
`14.
`
`Defendant UNITED STATES FISH AND WILDLIFE SERVICE
`
`(FWS) is an administrative agency within the US. Department of
`
`Interior.
`
`

`

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`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 6 of 39
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`IV.
`
`FACTUAL ALLEGATIONS
`
`15.
`
`The Forest Service issued its Final Environmental Assessment for the
`
`Soldier-Butler Project (Soldier-Butler Environmental Assessment) in
`
`October 2019.
`
`l6.
`
`The Forest Service signed the Soldier-Butler Final Decision Notice
`
`and Finding of No Significant Impact (Decision Notice) authorizing
`
`the Project in on April 17, 2020.
`
`l7.
`
`On June 23, 2020, Plaintiff filed a 60-Day Notice of Intent to Sue
`
`under the ESA’s citizen suit provision, alleging violations of the ESA
`
`related to open road density and survival standards for female grizzly
`
`bears; the Forest Service’s failure to base its decision on the “best
`
`scientific and commercial data;” violations of BSA § 9 prohibitions on
`
`taking; its failure to analyze the nexus between the Ninemile DCA
`
`and the Grizzly Bear Recovery Plan and Conservation Strategy; and
`
`the Forest Service’s failure to consider other important aspects of the
`
`problem, such as the impact of illegal motorized use of
`
`administratively closed roads and a history of road closure violations.
`
`18.
`
`The Forest Service reinitiated consultation with the US. Fish &
`
`Wildlife Service on August 10, 2020.
`
`

`

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`19.
`
`A Revised Biological Opinion, issued by FWS on October 2, 2020,
`
`indicated that the proposed action has not changed.
`
`20.
`
`The Project is located within the Ninemile Ranger District of the Lolo
`
`National Forest.
`
`21.
`
`The Project area encompasses approximately 45,160 acres and is
`
`located about seven miles northwest of Huson, Montana, and extends
`
`from the East Fork of Burnt Fork Creek southwest to Butler Creek and
`
`from the Ninemile Road #412 to the Reservation Divide.
`
`22.
`
`The Project includes a portion of the Reservation Divide Inventoried
`
`Roadless Area.
`
`23.
`
`The Project area lies entirely within the Lolo National Forest.
`
`24.
`
`The Decision Notice implemented a “Selected Action.” The Decision
`
`Notice states that the Selected Action is “a blend of Alternative B and
`
`Alternative C presented in the Environmental Assessment.”
`
`25.
`
`The Selected Action implements all of the Proposed Road and Trail
`
`Treatments as analyzed in Alternative B.
`
`26.
`
`The Selected Action implements all of the Proposed Vegetation
`
`Treatments analyzed in Alternative B except Unit 21 and Unit 92.
`
`27.
`
`The Decision Notice authorizes treatment on 9,975 acres and will
`
`remove 17. 5 million board feet of timber from the Project area.
`
`7
`
`

`

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`28.
`
`The Project will be implemented over an 8-10 year period.
`
`29.
`
`Several units within the Project area have been logged, thinned, and/or
`
`burned within the past decade, and some hand thinning and
`
`underburning units are continuing to be implemented.
`
`PROJECT ROADS
`
`30.
`
`The Soldier-Butler Environmental Assessment states, “As currently
`
`mapped and inventoried, the entire road system in the Soldier-Butler
`
`analysis area contains approximately 400 miles of existing and
`
`previously decommissioned road under various jurisdictions (NFS,
`
`State, BLM and private).”
`
`3 l.
`
`The Soldier-Butler Decision Notice states that the Project will
`
`construct 7 miles of new permanent road and 9.4 miles of temporary
`
`roads.
`
`32.
`
`The Soldier-Butler Decision Notice states that the Project will also
`
`add 35.4 miles of “undetermined roads” to the road system.
`
`33.
`
`The project proposes new permanent construction of the “Pine Creek
`
`Road” which will bisect an area that has provided relatively secure
`
`habitat for bears and other wildlife due to its relative inaccessibility.
`
`34.
`
`The Forest Service wildlife biologist stated that even though the Pine
`
`Creek Road will be closed to motorized use, its permanent
`
`8
`
`

`

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`construction will have long—lasting effects to the area in terms of
`
`providing non-motorized human access into an area that has
`
`historically been extremely difficult to access.
`
`35.
`
`The Forest Service wildlife biologist stated, “New road construction,
`
`particularly the ‘fire access road’ that would extend into the Pine
`
`Creek and Marion Creek areas, would provide new non-motorized
`
`access into an area that is currently very difficult to access. This road,
`
`plus the commercial thinning that would occur in the area, would
`
`substantially change the character of that area, reducing the sense of
`
`security and undisturbed nature of the area for big game.”
`
`36.
`
`The Soldier-Butler Environmental Assessment discloses that there are
`
`144 miles of National Forest Service System Roads in the Project
`
`area.
`
`37.
`
`The Soldier-Butler Transportation Report discloses that there are 142
`
`miles of National Forest System Roads in the Project area.
`
`38.
`
`The Soldier-Butler Transportation Report discloses that 151 miles of
`
`unauthorized roads exist on the Project area: 137 are “undetermined”
`
`and 14 are “not needed.” All of these roads are currently closed to the
`
`public.
`
`

`

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`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 10 of 39
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`39.
`
`“Undetermined roads” are unauthorized roads—not included in the
`
`Forest Service Road System and where long-term purpose and need
`
`has yet to be determined.
`
`40.
`
`“Not needed roads” or “Unneeded roads” are unauthorized roads—not
`
`included in the Forest Service Road System and but have determined
`
`to be not needed for long-term management of national forest
`
`resources.
`
`41.
`
`The Transportation Report states that the Project will decommission
`
`3.1 miles of National Forest System Roads.
`
`42.
`
`The Transportation Report discloses that the Project will add 18.3
`
`miles of roads to the National Forest System.
`
`43.
`
`The Decision Notice states that the Project will decommission 100
`
`miles of “Unneeded Roads.”
`
`44.
`
`The Decision Notice states that the Project will decommission 4 miles
`
`of undetermined roads that will be reconstructed and used during the
`
`timber sale.
`
`45.
`
`The Transportation Report discloses that the Project will “naturally
`
`decommission” 72.9 miles of unauthorized roads.
`
`46.
`
`The Transportation Report states that 31.8 miles of roads in the
`
`Project area will be decommissioned at level 3, 4 or 5.
`
`10
`
`

`

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`

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`55.
`
`The Forest Service excluded open roads on private lands within the
`
`Project Area from its analysis.
`
`56.
`
`Within the Project area, 57 miles of road are open to motorized public
`
`use year-round with no restrictions.
`
`57.
`
`58.
`
`59.
`
`60.
`
`Another 9 miles are open seasonally from June 15 to October 14.
`
`The remaining 39 miles of road within the Project area are either
`
`restricted (closed) to all public motorized access with physical
`
`barriers, such as gates or berms, or are closed to public motorized
`
`access except for snowmobiles and some administrative use.
`
`These roads are available for non-motorized public access.
`
`During Project implementation, in addition to temporary road
`
`construction and use, approximately 40.3 miles of roads that are
`
`currently closed to public motorized access would also be used for
`
`Project implementation.
`
`61.
`
`The Forest Service wildlife biologist disclosed that, “Use of these
`
`roads during the project will effectively make them the same as open
`
`roads in terms of the effects to grizzly bears, which are primarily
`
`displaced due to disturbance.”
`
`12
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 13 of 39
`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 13 of 39
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`FRENCHTOWN FACE PROJECT
`
`62.
`
`The Project area overlaps with the Frenchtown Face Ecosystem
`
`63.
`
`64.
`
`Restoration Project area (Frenchtown Face Project).
`
`The Frenchtown Face Project was approved in 2006.
`
`The Frenchtown Face Project includes 1,641 acres of prescribed
`
`burning of harvest and maintenance units and 615 acres of thinning
`
`and prescribed burning which have not yet been implemented.
`
`65.
`
`The Frenchtown Face Project authorized decommissioning of 115
`
`miles of roads, stating that “most of the road decommissioning,
`
`however, (approximately 110 of the 114.7 miles) will receive ‘Level
`
`III’ closures, which typically involve deep ripping of the road surface,
`
`drainage structure removal and restoration, and entrance closures
`
`through boulders.”
`
`66.
`
`The Soldier-Butler Environmental Assessment discloses that within
`
`the area where the Soldier-Butler and Frenchtown Face Projects
`
`overlap (“overlap area”) are 85 miles of roads that the Frenchtown
`
`Face Project previously authorized to be decommissioned.
`
`67.
`
`The Soldier-Butler Environmental Assessment discloses that only 15
`
`miles of roads in the overlap area have been decommissioned—70
`
`miles out of the 85 miles have not yet been decommissioned.
`
`13
`
`

`

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`68.
`
`The Soldier-Butter Project reverses the Frenchtown Face Project’s
`
`decision to decommission the roads in the overlap area.
`
`69.
`
`Instead of decommissioning the remaining 70 miles the Frenchtown
`
`Face Project authorizes in the overlap area, the Soldier-Butler Project
`
`will only decommission 34 miles of roads within the overlap area.
`
`70.
`
`Neither the Soldier-Butter Environmental Assessment nor Decision
`
`Notice disclose what level of decommissioning these 34 miles of road
`
`in the overlap area will receive.
`
`71.
`
`The Forest Service states that the decision to reverse the Frenchtown
`
`Face Project’s decision to decommission the 70 miles are “due to
`
`uncounted for pre—existing rights on roads, the need for them during
`
`implementation of Soldier-Butler Project, and/or because some of
`
`these roads are in the wildland-urban interface and are needed for
`
`ingress and egress for public and firefighter safety.”
`
`72.
`
`The Forest Service did not adequately discuss or disclose the total
`
`number of roads that the Soldier-Butler Project and the Frenchtown
`
`Face Project will either add to or remove from the National Forest
`
`Road System.
`
`14
`
`

`

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`SNAGS
`
`73.
`
`The L010 National Forest Plan provides Standard 25 for snags, which
`
`states: “In the portion of the Forest more than 200 feet from all system
`
`roads, sufficient snags and dead material will be provided to maintain
`
`8 percent of the population of snag-using species normally found in an
`
`unmanaged Forest. (See Appendix N, Procedures to Implement the
`
`Forest Snag Standard)”
`
`74. Appendix N sets for “Snag Retention Prescriptions” for different
`
`vegetation communities:
`
`Iahla_lL_JaaNLEaianhnuLfreanrlnilana
`
`1 Moderately Ham and I Moderately Cool and Dry
`:
`DE!!! DE :Egndfltgfifi
`1 Dmlfllfii'fjrflhalfl EIEICICJE
`
`1 Hoist Hidelevatlon I
`l
`Sunflaifirand EjE
`I
`
`Cold and Dry
`Ellhalainfl Ell:
`
`:
`
`Total hard snags
`needed/ac.
`(min.
`size 10" d.b.h.,
`15' tall)
`
`No. of big snags
`needed (20" d.b.h.,
`IID'
`tall-included
`1m amwnt)
`
`Amount dead and
`down needeanc.
`(min. size 6"
`dia., 8'
`long)
`No. of live
`replacements
`neededfac.
`
`No. of soft. "stubs"
`needeanc.
`
`1-1.0
`
`3.0
`
`3.5
`
`.1
`(1/10 ac.)
`
`.1
`(U10 ac.)
`
`.1
`(1/10 ac.)
`
`3-10 tons
`
`10—15 tons
`
`12-20 tons
`
`3
`(3X10 ac. or 18 ac.)
`
`3
`(3/10 ac. or 1/3 ac)
`
`3
`(3/10 ac. or 1/3 ac.)
`
`1.0
`
`None
`
`--
`
`--
`
`All additional available
`
`All available
`
`All available
`
`All available
`
`WI]:
`
`kW:
`
`Hard Snag — sound, potentially merchantable
`Stub — soft brokentop, obvioualg.r rotten. cr‘umbll‘r
`Replacement - live, older tree, pref‘erabllr brokentop
`
`——Big snags over small snags
`--Brokentop over intact top
`"Cull over merchantable trees
`--Live culls over dead merchantable trees
`--Larch over ponderosa over Douglaewf‘ir' over
`all other species diseased over healthy
`
`15
`
`

`

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`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 16 of 39
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`75.
`
`The Forest Service notes that, in general, snags are abundant across
`
`the Lolo National Forest.
`
`76.
`
`However, the Forest Service concedes, “Specific snag surveys were
`
`not conducted in the Soldier-Butler project area.”
`
`77.
`
`The Soldier-Butler Wildlife Report states, “Past logging in the mid-
`
`elevations of the project area removed snags and coarse wood as well
`
`as canopy cover, due in part to logging practices of the past that did
`
`not aim to retain snags and snag recruitments .
`
`.
`
`. These areas are still
`
`regrowing, although large dead and downed wood is still scarce and
`
`will continue to be for several more decades.”
`
`78.
`
`The Forest Service further concedes in the Soldier-Butler Wildlife
`
`Report, “Loss of large snags and course wood would likely occur in
`
`both commercial and non-commercial thinning units.”
`
`79.
`
`Pileated woodpeckers function as an indicator of mature forest/snag
`
`habitats in the Lolo National Forest Plan.
`
`80.
`
`The nest tree is the most important variable for predicting nesting
`
`habitat.
`
`81.
`
`Nest tree diameters are generally larger than 15 inches and can either
`
`be snags or live trees.
`
`16
`
`

`

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`82.
`
`In the Soldier-Butler Project area, nesting habitat was identified as
`
`any stands with trees 15 inches in diameter at breast height or larger,
`
`with canopy 40% or greater.
`
`83.
`
`Due to their nesting and roosting requirements, pileated woodpeckers
`
`are often associated with old-growth or mature forest stands.
`
`84.
`
`The Forest Service states in the Soldier—Butler Wildlife Report that,
`
`“Nesting habitat for pileated woodpeckers currently covers
`
`approximately 4% of the analysis area (1,694 acres), and foraging
`
`habitat covers another 46% of the analysis area (20,912 acres). Note
`
`that nesting habitat is included in foraging habitat.”
`
`85.
`
`The Forest Service discloses that the Project will treat 5,734 acres of
`
`foraging habitat and 641 acres of nesting habitat.
`
`86.
`
`The remaining acres of nesting habitat for pileated woodpeckers after
`
`project implementation will be 1,053 acres, which is 2% of the Project
`
`area.
`
`87.
`
`In other words, only 2% of the Project area will have snags or live
`
`trees with diameters 15 inches or larger.
`
`88.
`
`The Lolo National Forest Plan also provides Standard 4 in
`
`Management Area 21 which states, “Provide stands at least 30—40
`
`acres in size that are decadent, multi-storied, fully stocked, contain
`
`17
`
`

`

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`snags with dead and down materials greater than 15 tons per acre, and
`
`contain 15 trees per acre greater than 20 inches d.b.h. These stands
`
`should be well distributed over the Forest.”
`
`89.
`
`In the Project area, approximately 618 acres are located in
`
`Management Area 21.
`
`90.
`
`The Soldier-Butler Project would treat 328 acres in Management Area
`
`21 within Units 24, 25, 26, 70, and 93.
`
`91.
`
`The Forest Service does not discuss or disclose whether the Project
`
`meets Standard 4 for Management Area 21 or Forestwide Standard 25
`
`for snags.
`
`ELK
`
`92.
`
`Elk are a management indicator species for the Lolo National Forest,
`
`used to gauge impacts on all big game species and other species that
`
`use similar habitats on the Forest.
`
`93.
`
`Elk generally need large expanses of intact habitat that includes
`
`healthy forage and browse with limited noxious or invasive weeds,
`
`and areas with limited human disturbance that can provide security for
`
`the herds.
`
`94.
`
`Goals for the Ninemile Elk Management Unit (EMU) include
`
`maintaining 80% of existing habitat security (MTFWP 2004). This
`
`18
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 19 of 39
`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 19 of 39
`
`requires secure habitat areas in summer, controlling vulnerability from
`
`hunting, and providing winter range sufficient to support elk when
`
`little forage is available.
`
`95.
`
`Management Area 18 and Management Area 23 on the Lolo National
`
`Forest are managed for elk winter range.
`
`96.
`
`The Lolo National Forest Plan states that the lands within
`
`Management Areas 18 and 23 are “winter range for deer, elk, and
`
`bighorn sheep.”
`
`97.
`
`A goal for Management Area 18 is to “Optimize forage production
`
`and cover for deer, elk, and bighorn sheep on winter range.”
`
`98.
`
`A goal for Management Area 23 is “provide optimal forage:cover
`
`ratios for deer, elk, and bighorn sheep winter range .
`
`.
`
`. ”
`
`99.
`
`Standard 7 for Management Area 18 and 23 states, “Retain as a
`
`minimum a 50:50 coverzforage ratio. The majority of cover should be
`
`thermal cover, that is, trees greater than or equal to 40 feet tall with a
`
`crown density greater than or equal to 50 percent.”
`
`100.
`
`Much of the Soldier-Butler Project area falls within Management
`
`Areas 18 and 23.
`
`19
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 20 of 39
`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 20 of 39
`
`101.
`
`The commercial and non-commercial thinning and burning would
`
`occur throughout much of the areas assigned as Management Area 18
`
`and 23 under the Project.
`
`102.
`
`The Soldier-Butler Environmental Assessment states, “Units with
`
`commercial treatments would result in 30-80% canopy reductions,
`
`depending on the unit, which would render these areas unsuitable for
`
`providing thermal cover, snow intercept, and hiding cover.”
`
`103.
`
`The Soldier-Butler Environmental Assessment states, “The reductions
`
`in thermal cover that would occur under either alternative would
`
`continue to decrease thermal cover in Winter Range on the heels of
`
`the Frenchtown Face project, which eliminated thermal cover on
`
`approximately 600 acres of Winter Range in the analysis area within
`
`the past decade, mostly in the Butler and McCormick Creek areas.”
`
`104.
`
`Montana Fish Wildlife and Parks urged the Forest Service, “consider
`
`an alternative that leaves more cover for wildlife.”
`
`105.
`
`The Soldier-Butler Environmental Assessment calculated
`
`coverzforage ratio using two analysis areas: “Effective Winter Range”
`
`and “Winter Range.”
`
`20
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 21 of 39
`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 21 of 39
`
`106.
`
`The Soldier-Butler Wildlife report states that “Effective Winter
`
`Range” is “a larger area than what is covered by Management Areas
`
`18 and 23 identified in the Forest Plan, but is consistent with the
`
`definition of Big Game Winter Range in the Forest Plan (i.e., ‘the area
`
`available to and used by big game through the winter season.’)”
`
`107.
`
`The Soldier-Butler Wildlife report indicates that “Winter Range” is
`
`Management Areas 18 and 23 within the Project area.
`
`108.
`
`There is a total 22,642 acres of Effective Winter Range in the Project
`
`area.
`
`109.
`
`There is a total of 8,877 acres of Winter Range (Management Areas
`
`18 and 23) in the Project area.
`
`110.
`
`Alterative B would reduce cover on a total of 4,5 10 acres within
`
`Effective Winter Range for elk and on 2,876 acres within Winter
`
`Range (Management Areas 18 and 23).
`
`111.
`
`Alterative B would result in 2,816 acres of cover in Winter Range
`
`(Management Areas 18 and 23), and 9,775 acres in Effective Winter
`
`Range remaining in the Project area.
`
`112.
`
`This would result in a cover:forage ratio of 32:68 in Winter Range
`
`(Management Area 18 and 23); and a cover:forage ratio of 43:57 in
`
`21
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 22 of 39
`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 22 of 39
`
`Effective Winter Range:
`
`Table 18. Changes in Cover:Forage ratio between the two action alternatives, considering both the
`winter range MAS and the Effective Winter Range area.
`
`Existing
`Condition
`
`Alternative B
`
`Alternative C
`
`
`
`
`
`
`% W
`
`inter Range
`MAS in Soldier
`
`
`5,692
`64
`2,816
`32
`4,391
`49
`
`acres
`
`%
`
`acres
`
`%
`
`acres
`
`Butler project
`area
`Effective Winter
`
`Range in Soldier
`Butler project
`area
`
`-
`
`36
`
`6,059
`
`68
`
`4,483
`
`51
`
`113. The Soldier-Butler Environmental Assessment states, “Alternative B
`
`includes a site-specific Forest Plan Amendment that would allow for
`
`the amount of cover to drop below 50% in the winter range, for the
`
`sake of accomplishing fuels reduction. Alternative C would retain
`
`enough cover to meet the Forest Plan Standard as written, and provide
`
`more areas for big game to seek cover from deep snows and harsh
`
`weather in winter.”
`
`114. The Decision Notice for the Project did not implement a site-specific
`
`Forest Plan Amendment that would allow for the amount of cover to
`
`drop below 50% in winter range.
`
`115. The Decision Notice implements the timber harvest proposed in
`
`Alternative B except it will not implement harvest in Unit 21 (129
`
`acres) and non-commercial treatment in Unit 92 (67 acres).
`
`22
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 23 of 39
`Case 9:20-cv-00156-DLC—KLD Document 1 Filed 10/23/20 Page 23 of 39
`
`116.
`
`The Decision Notice states that “Resource Project Measures (RPMs)
`
`were adjusted for big game security in response to comments
`
`submitted by the public and Montana Fish, Wildlife and Parks.”
`
`117.
`
`The Decision Notice states, “These changes along with findings from
`
`the effects analysis have eliminated the need to include a Forest Plan
`
`amendment for standards regarding: (1) thermal cover for big game
`
`species in winter range; and, (2) requiring generally restricting some
`
`activities to summer and fall months as originally anticipated.”
`
`118.
`
`However, even with the Forest Service’s decision not to implement
`
`Unit 21 and Unit 92 and assuming those Units provide cover in
`
`Effective Winter Range (Management Area 18 and 23), there will
`
`only be 44% cover remaining.
`
`119.
`
`Standard 4 for Management Area 18 requires, “all logging and road
`
`building for normal activities will generally be restricted to the
`
`summer and fall months.”
`
`120.
`
`The Resource Protection Measure the Decision implements to
`
`“minimize disturbance to big game on winter range” states that no
`
`logging, 10g hauling, or road building will occur December 15-May 1
`
`on all units and roads east of Kennedy Creek.
`
`23
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 24 of 39
`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 24 of 39
`
`121.
`
`122.
`
`There is land in Management Area 18 west of Kennedy Creek.
`
`The Decision allows for logging, log hauling, and road building
`
`during the winter on units west of Kennedy Creek.
`
`123.
`
`The Project does not authorize a site-specific suspension for
`
`Management Area 18 Standard 4.
`
`AQUATICS AND HYDROLOGY
`
`124.
`
`The Project area contains streams providing habitat for native fish,
`
`such as bull trout and westslope cutthroat trout.
`
`125.
`
`Forest roads are the leading current source of sediment in Project area
`
`streams.
`
`126.
`
`Historically, mining in stream channels was a major source of
`
`sediment delivery.
`
`127.
`
`Project area streams all have extensive histories of mining activities
`
`with private ownership near their confluences with Ninemile Creek.
`
`This has caused multiple streams to be listed as exceeding water
`
`quality standards by the Montana DEQ (2005).
`
`128.
`
`Sediment loads in all Project area streams are elevated above natural
`
`conditions. This is particularly true in watersheds that were
`
`extensively mined (including Kennedy, McCormick, and Josephine),
`
`24
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 25 of 39
`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 25 of 39
`
`although all watersheds are currently impacted by stream-adj acent
`
`roads.
`
`129.
`
`Unrepaired mine sites actively contribute to the degraded existing
`
`sediment condition.
`
`130.
`
`Much of the Reservation Divide is roadless such that headwater
`
`reaches were not mined or logged and remain in fairly pristine
`
`condition. However, low—middle reaches in the Project area are more
`
`accessible and have been severely affected by surface mining, timber
`
`harvest, road systems, and agriculture.
`
`131.
`
`There are four streams in the project area listed as impaired for water
`
`quality on the Montana State 303d list: Josephine Creek, Kennedy
`
`Creek, Little McCormick Creek, and McCormick Creek.
`
`132.
`
`These creeks are listed as impaired for reasons including
`
`sedimentation.
`
`133.
`
`Additionally, Big Blue Creek and upper McCormick Creek (Little
`
`McCormick to headwaters) were both previously listed with the
`
`original 2005 TMDL but have since been delisted (MDEQ, 2005).
`
`25
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 26 of 39
`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 26 of 39
`
`134.
`
`Sediment is the indicator that is currently the most degrading, as the
`
`existing road systems represents a chronic non-point sediment
`
`delivery source.
`
`135.
`
`Kennedy Creek, Little McCormick Creek, McCormick Creek, and
`
`Butler Creek are in the Soldier-Butler/Frenchtown Face overlap area.
`
`136.
`
`The Soldier-Butler Hydrology Report states that to address the
`
`sedimentation issue in Kennedy Creek, “further road
`
`decommissioning, upgrades, and culvert replacements need to be done
`
`to address sediment loading from forest roads.”
`
`137.
`
`The Soldier-Butler Hydrology Report states that McCormick
`
`watershed receives the most sediment from roads, followed by the
`
`Butler Creek Watershed.
`
`138.
`
`The Frenchtown Face Project authorized road decommissioning for
`
`roads in the Kennedy Creek, Little McCormick, McCormick Creek,
`
`and Butler Creek watersheds to reduce sediment load.
`
`139.
`
`The Soldier-Butler Project reverses the Frenchtown Face decision to
`
`decommission the roads in the Kennedy Creek, Little McCormick and
`
`McCormick Creek watersheds.
`
`26
`
`

`

`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 27 of 39
`Case 9:20-cv-00156-DLC-KLD Document 1 Filed 10/23/20 Page 27 of 39
`
`140.
`
`Josephine Creek is listed as impaired for sedimentation from forest
`
`roads.
`
`141.
`
`Josephine Creek is not within the Soldier-Butler/Frenchtown Face
`
`overlap area.
`
`142.
`
`The lower reach of Josephine Creek below Road 890 “has been
`
`extensively placer mined. Noticeable effects from this are an
`
`increased bed load, dec

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