Judge vacates Stonewall Project ROD

U.S. District Judge Dana Christensen granted a motion to remand the Stonewall Vegetation Project to the Forest Service for completion of a supplemental environmental analysis but also vacated project's Record of Decision signed by Helena-Lewis and Clark Forest Supervisor Bill Avey in 2016.

Through seven years of analysis and collaboration, government agencies and local organizations, including the Lincoln Restoration Committee, helped developed the project to improve forest health and reduce fuel loading in the forest west of Lincoln. Implementation was set to begin in the spring of 2017, but was enjoined by Christensen after a lawsuit filed against it by the Alliance for Wild Rockies and the Native Ecosystem's Council.

Last summer, the Arrastra and Park Creek Fire's swept across the hills north of Lincoln and burned more than 13,000 acres of the 24,000-acre project area. The fires turned the Stonewall Project into a political football and prompted calls for reforms to the environmental laws that are seen as being abused.

Because of the fires, the Forest Service itself requested that the court remand the project back to the agency so they could review the fires impact on wildlife, soils and hydrologic conditions in the area.

In January, Avey said the review was necessary to comply with the Forest's obligations under the National Environmental Policy Act and to allow the court to make a fully informed decision, but chose not to rescind his record of decision on the project.

In his decision last week Christensen, agreed that the Forest Service request for a voluntary remand was warranted, based on the fact the Park Creek Fire was an "intervening event" that changed the conditions in that project area enough to merit further analysis.

However, Christensen found arguments that the decision should stand due to the economic impact of vacatur and the possible termination of the timber contract awarded to RY Timber unconvincing. Likewise, he was unpersuaded by the argument that the Park Creek Fire demonstrated the risks posed by the heavy fuel loads in the project area.

Although the Forest Service argued that vacating the decision would result in an additional delay of 60 days, Christensen found they didn't provide evidence that the consequences would be severe enough to warrant leaving the ROD in place.

"While there has been a fire demonstrating the risks of heavy fuel loads in the project area, the defendants (Forest Service) have not explained why any delay as a result of vacatur will increase the magnitude of this risk and, importantly, the fire has already occurred," he wrote.

How the decision will affect the Stonewall Vegetation Project and the lawsuit against it is unclear, and the response to a request for comment from Avey provided little indication.

"The Stonewall Vegetation Project is intended to help improve forest health and resiliency, reducing the threat of intense wildfires to the residents of Lincoln by removing hazardous fuels through mechanical treatments and the use of prescribed fire. We received a copy of the Court's ruling earlier (Friday) and are reviewing the details of the decision." he said in a USDA approved statement.

In a recent Helena Independent Record story on Christensen's decision Mike Garrity, executive director of the Alliance for the Wild Rockies, praised the decision, calling it a great day for elk and wildlife in the area and said a new public process will determine whether the project proceeds, is changed or is scrapped.

Lincoln lawyer KD Feeback, co-chair of the Lincoln Restoration Committee said the decision doesn't meant the Forest Service will have to go back to square one, but said the delay benefits the AWR and NEC since it gives them "a second bite at the apple."

He also understands why Christensen made the decision he did.

"He has to follow 9th Circuit Court of Appeals common law, and the 9th Circuit Court of Appeals, in this sort of a situation has previously ruled that a record of decision has to be vacated. You can't set it aside and wait for tweaks for the (Environmental Impact Statement) and allow that older record of decision to stand for the supplemental EIS," he said.

Although he understands why Christensen decided the motion as he did, Feeback said it's the result of an inefficient system borne of varying interpretations of environmental law.

"All that has to be fixed in Washington DC," he said. "The 9th Circuit Court of Appeals has built a body of case law that cannot be dealt with in any sort of a rational fashion. They have to amend the environmental statutes, create some common-sense wiggle room."

As Feeback sees it, the reason for the Stonewall Vegetation hasn't really changed, despite Christensen's assertion that the fire has already occurred. Much of the area slated for harvest and thinning is outside the burned area.

"Lincoln is not well situated for wildfire because we almost always in the summers have a prevailing westerly wind and a bunch of dead trees between us and that wind. That was part of the reason for the Stonewall Project to begin with, to clear a lot of that dead stuff out of the woods just in case a fire started. Presto change-o a fire started. Thankfully it didn't hurt Lincoln," he said.

Additionally, he believes the litigious of environmental groups doesn't bode well for future projects that could help protect the community.

There's another one being proposed for Willow Creek for the same reason. That country up there, if it starts on fire it's entirely likely to burn right into town. It's important to the community to make a fire break there of some sort.," he said. "There's a personal stake here for everyone who lives in the community to see something rational get done."