MISSOULA - A federal judge has halted a logging project near Libby until the U.S. Forest Service justifies why it didn’t conduct a full environmental study and properly consider the effects on Canada lynx.
On Monday, Missoula federal district Judge Dana Christensen backed the findings of Magistrate Judge Kathleen DeSoto related to the Ripley logging project southeast of Libby.
Of the five issues brought by the plaintiff, Alliance for the Wild Rockies, in September 2021, DeSoto had sided with the plaintiff on two while ruling in favor of the defendants — the Kootenai Forest supervisor and Libby district ranger, the Forest Service and the U.S. Fish and Wildlife Service - on the other three in September 2022.
Because the parties in the case objected to DeSoto’s findings, Judge Dana Christensen made his own review of the case and supported all of DeSoto’s findings in Monday’s ruling.
Approved in May 2021, the Ripley Project would commercially log almost 17 square miles, 30% of which would be clearcuts, within 2 miles of the Cabinet-Yaak grizzly bear recovery zone. Two-thirds of the project is on national forest land with the rest owned by the state or private owners.
To move the logs, the Forest Service would build 13 miles of permanent road and 6 miles of temporary road, and maintain 93 miles of existing road over the course of 25 years. The Forest Service estimated the project would require $643,000 in taxpayer dollars in addition to revenue from the timber sales.
DeSoto found that the Forest Service cut two corners in its analysis of the project.
First, the Forest Service didn’t follow the law - specifically the National Environmental Policy Act and Endangered Species Act - when choosing to carry out an environmental analysis of the project rather than a more comprehensive environmental impact study. The impact study is required if a project is likely to result in significant environmental effects.
Alliance for the Wild Rockies was able to raise enough concerns about the project’s negative effects on grizzly bears - especially related to the cumulative effects of logging and road building occurring on non-federal land and well as federal land in the project area - that DeSoto ordered the Forest Service to do a better job of calculating the cumulative effects.
Even though the project area is not in the grizzly bear recovery zone, during the past five to seven years, three male grizzly bears have been documented in the area, and a biological assessment found that the project “may affect, was likely to adversely affect” grizzly bears.
“On the facts of this specific case—involving a decades-long forest project, a uniquely vulnerable population of grizzly bears, and agencies’ failure to comply with basic requirements of the ESA—(DeSoto’s findings and recommendations) appropriately concluded that Plaintiff had met its burden of raising substantial questions,” Christensen wrote.
Although Christensen ordered the Forest Service to redo its assessment to determine whether a more comprehensive study is required, he agreed with the Forest Service that the agency should have the discretion to make that decision. So he didn’t require an environmental impact study.
For the second issue, DeSoto found the Forest Service skipped steps related to whether Canada lynx were affected.
The Endangered Species Act requires federal agencies — the Forest Service in this case — to request from the U.S. Fish and Wildlife Service (USFES) a list of endangered species that might be in a project area. The agency can then conduct a biological assessment of how the project might affect each listed species.
But the Forest Service didn’t do that with the Ripley Project, even though the project area is surrounded on three sides by Lynx Analysis Units, two of which contain federally designated critical habitat.
Instead, the agency never dealt with the USFWS and claimed it wrote a biological assessment that concluded lynx weren’t present. However, DeSoto could find no evidence of a legitimate biological assessment, other than a brief section in a Wildlife Specialist report.
“The fundamental problem with USFS’s failure to follow the proper procedure in this case is that it is FWS, not USFS, that is statutorily required to determine whether a listed species may be present ‘based on the best scientific and commercial data available,’” Christensen wrote. “USFS cannot ignore the statutorily mandated procedure and decide, on its own, that a listed species is not present in the action area.”
DeSoto and Christensen ruled that Alliance for the Wild Rockies didn’t prove that closed Forest Service roads were constantly being breached to the point that they should be counted as open roads. That argument worked in a lawsuit against the Lolo National Forest but Christensen said an inventory had provided proof of the amount of encroachment there but no similar inventory existed for the Ripley Project area. Similarly, the judges ruled that the Forest Service didn’t need to analyze how breached roads might further harm grizzly bears.
Finally, even though three grizzly bears were recently documented in the area, the judges ruled that the Forest Service didn’t have to designate a “Bears Outside Recovery Zone” area that would add additional restrictions on roads.
In December 2021, Lincoln County and two forest-products groups intervened on behalf of the Forest Service, saying they rely on the project’s timber for their economy, and a few companies have already bought the timber.
Mark Peck, Lincoln County Port Authority board member, and former county commissioner, said he was frustrated with Monday’s ruling but it could have been worse. He wishes that two of the timber sales that are close to Libby and the airport would be allowed to go ahead.
“Our focus is on protecting the community. The sad part of all this is that two projects are within the wildland-urban interface and we’re held hostage by a failed system,” Peck said. “They’ve both already been sold, and that area is the most heavily populated area outside of a city limit in Lincoln County. At some point, there’s gotta be a balance of harms between grizzly bears and the human population.”
Alliance for the Wild Rockies executive director Michael Garrity was pleased to have two rulings go in his organization’s favor.
"The federal court found that the project is illegal because the government did not analyze the cumulative impacts on grizzly bears from logging on public lands, state lands, and private lands all at the same time,” Garrity said. "Endangered species like this struggling and isolated population of grizzly bears have an incalculable value. So we will continue our David vs. Goliath fight for their survival. The survival of this population should never be sacrificed for the sake of short-term corporate welfare for private logging companies.”
The Grizzly Bear Recovery Plan requires 100 bears for the minimum viable population in the Cabinet-Yaak Recovery Area, but the population is limping along with only half of that. From 1982 to 2020, researchers reported 64 instances of known and probable grizzly bear mortality in and near the area and found that 72% were human-caused. The most recent actual count in the Cabinet Yaak — published in 2021 for the 2020 monitoring year— was 45 grizzlies. Three female grizzlies died in 2022.
The Kootenai National Forest has proposed several other large logging projects in northwest Montana, all of which have to be analyzed for their effect on grizzly bears.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com
