Appellate Panel Weighs Flathead River Logging

     SEATTLE (CN) - A 3,000-acre logging project along Montana's Flathead River could threaten grizzly bears, lynx and bull trout, environmentalists told the 9th Circuit.
     Friends of the Wild Swan and The Swan View Coalition sued the U.S. Forest Service and U.S. Fish and Wildlife Service twice in 2012 to stop different phases of the timber harvest. Logging is scheduled to begin this summer, but the federal complaints remain pending in Missoula, Mt.
     The Spotted Bear and Soldier Addition projects will take place immediately across the Flathead River from one another in a remote location surrounded by the Bob Marshall and Great Bear wilderness areas. The Forest Service will use helicopter logging, build new roads and openup previously closed roads in "an extremely remote and biologically rich area of the South Fork of the Flathead River watershed surrounded by wilderness," the complaints state.
     Though the Forest Service's environmental assessment found "no significant impact," it ignored how the project will adversely affect critical habitat for Canada lynx, bull trout and grizzly bears, environmentalists say. The complaint alleges violations of the Endangered Species Act, the National Environmental Policy Act and the National Forest Management Act.
     Chief U.S. District Judge Dana Christensen refused to block the logging pending a ruling on the merits.
     "Plaintiffs have not met their burden to show they are likely to succeed on the merits, they will suffer irreparable harm absent their requested relief, and the balance of equities and public interest considerations weigh in their favor," Christensen wrote.
     At a hearing Wednesday before a three-judge panel of the 9th Circuit, Matthew Bishop, with the Western Environmental Law Center, said the Forest Service failed to look at cumulative effects of the two logging projects.
     This is important because sediment deposits from the operations could foul the river and harm threatened bull trout.
     Judge Carlos Bea asked if it was possible to regulate the harvest so logging does not take place in both units at the same time.
     Bishop said "you could certainly stagger it," but that the Forest Service made no effort to ensure this possibility.
     Judge Johnnie Rawlinson next asked what authorized the court to stagger the projects.
     Bishop said the panel could order the Forest Service to log consecutively, but that a "more appropriate" remedy would be to remand the case and require the agency to assess cumulative effects. Currently there was "no analysis at all," he said.
     The agencies failed to properly define "action area" for regulatory purposes, Bishop said. Though the service reviewed only "the immediate project area," regulations require assessment of areas that are "directly or indirectly" affected, he added.
     "They never considered, for instance, where displaced grizzly bears from the logging project may go," Bishop said.
     Justice Department attorney Matt Littleson said the environmentalists do not deserve an injunction because they never demonstrated they can win the case on the merits.
     Rawlinson interrupted: "For me, the cumulative effects issue comes closest to raising a serious question on the merits."
     Though Littleson said the analysis of the project addressed cumulative effects, Rawlinson countered that the Forest Service report discusses this only on one page of the report.
     Bea wanted to know if the Forest Service considered what would happen with sedimentation if both logging projects occurred simultaneously.
     "Sedimentation is only a concern with respect to bull trout," Littleson said.
     "There's no allegation that grizzly bear or lynx will be adversely affected."
     Harvesting timber would not lead to potential sedimentation, as that would only occur in the "highly unlikely event" of a rainstorm after a prescribed burn, the DOJ lawyer added.
     "Even if this court were to determine that there were a problem with sedimentation, there would be no basis for enjoining any timber harvest on either side for either project," Littleson said.
     Sedimentation affects spawning and rearing bull trout, but there is no spawning and rearing habitat in the 7-mile stretch of the river that would experience runoff, he added.
     Bea asked if the fish pass through the area for foraging purposes.
     Littleton conceded they did.
     "Then it's affected by sedimentation," Bea said.
     Littleton shot back that the logging project "would actually reduce the risk of sedimentation."
     "There's also the reduced pine beetle infestation risk, safety hazards, benefits to the local economy," he added. "The District Court took all of these things into account and did not abuse its discretion in determining a preliminary injunction was not warranted here."
     On rebuttal, Bishop agreed that the "bulk" of sedimentation would come after a heavy rain following burning, but said the logging operations also caused sedimentation.
     "There's still a significant amount of sediment coming from the road work. We're talking about tons," he said.
     "All we're asking for today is that this panel preserve the status quo until the District Court can issue a final decision on the merits or until the agency can bring its actions into compliance with the law," Bishop said.