Montana logging project on track to clear legal challenge

(CN) — A coalition of conservation groups’ attempt to stop a forest project in Montana’s Bitterroot National Forest fell flat on Tuesday when a magistrate judge recommended the court toss their claims.

In her findings and recommendations, U.S. Magistrate Judge Kathleen DeSoto noted inconsistencies in the conservation groups’ arguments across different filings, leading to many of their claims being waived.

“Therefore, defendants argue, plaintiffs have conceded these issues,” DeSoto wrote. “Defendants further point out that several of plaintiffs’ arguments are raised for the first time on reply.”

The groups challenged the planned Mud Creek Vegetation Management Project, claiming it violates multiple federal conservation acts by failing to provide exact details of where logging and burning will take place, as well as what effects it will have on the environment.

The project will include logging, thinning, controlled burns and road construction on 48,000 acres of federal forest. It is intended to mitigate wildfire risk.

At oral argument in August, the conservation groups advanced only three claims: Endangered Species Act violations concerning bull trout, National Forest Management Act species viability regarding old growth and a National Environmental Policy Act hard-look claim related to climate change.

The conservation groups didn’t persuade DeSoto on any of the three.

Under the National Environmental Policy Act, the conservation groups accused the U.S. Forest Service of not considering the project’s effects on climate change. The groups likened the argument to a recent decision from the court, but DeSoto rejected the comparison.

“Plaintiffs have not shown that significant analysis supporting USFS’ conclusions was borrowed from elsewhere,” DeSoto wrote. “Nor have Plaintiffs rebutted the quantitative estimates that were included in the forest-specific carbon assessment and which underly the decision to prepare a qualitative analysis for the project.”

DeSoto also concluded that the conservation groups improperly raised their argument that the Mud Creek Project is noncompliant with a forest-wide management standard that requires old-growth trees to support healthy populations of key native species like pine marten.

“​​Even if plaintiffs’ arguments had been properly raised, it is apparent that their claims on this issue fail,” DeSoto wrote, explaining that the Forest Service only needed to show that the project activities wouldn’t harm pine marten populations.

The conservation groups next challenged the U.S. Fish and Wildlife Service’s preparation of a biological opinion and incidental take statement on bull trout, arguing that the construction of temporary roads will result in increased sediment in streams.

However, there was a discrepancy between the arguments in the conservation groups’ opening brief and reply brief.

“​​Ultimately, the arguments in the opening brief are unpersuasive and the new arguments brought in the reply brief are improperly raised,” DeSoto wrote.

In the opening brief, the groups argued that the temporary roads would not be decommissioned, which DeSoto noted was contradicted by the final environmental assessment. In the reply brief, the conservation groups switched focus to the use or construction of temporary roads within riparian habitat conservation areas.

That argument failed, as well.

“As defendants and the administrative record make clear, no new roads will be built within the [riparian habitat conservation areas],” DeSoto wrote.

Neither the conservation groups nor federal defendants immediately responded to a request for comment.