Blackfoot Valley Dispatch - The Blackfoot Valley's News Source Since 1980

By Roger Dey
BVD 

Willow Creek project decision breakdown

 


The Alliance for Wild Rockies and Native Ecosystems Council filed suit challenging the Willow Creek Vegetation project June 14, 2019.

Less than two weeks earlier, on June 3, they had filed a nearly identical lawsuit against the North Bridger Forest Health Project near Bozeman. The two case were consolidated Aug. 20, 2019.

In the lawsuit, AWR and NEC argued the Willow Creek project didn’t qualify for a Categorical Exclusion under HRFA and claimed the project violated the Endangered Species Act because it didn’t analyze the effect of “interrelated and interdependent” Healthy Forest Restoration Act projects on grizzly, lynx and lynx habitat.

They also claimed the Forest Service violated the National Environmental Policy Act by failing to analyze the projects cumulative effects and failing to analyze the wilderness potential of adjacent Inventoried Roadless Areas.

Finally, they claimed that consultation for the 2016 Blackfoot Travel plan had to be reinitiated for Willow Creek.

The decision by Federal District Judge Donald Molloy included a summary judgement in favor of the Forest Service regarding the allegation the Willow Creek Project failed to meet three requirements for a Categorical Exclusion.

First, the two groups argued that the project didn’t comply with restrictions on permanent and temporary roads. Molloy found the assertions to be based on speculation that road closures would be ineffective.

Next, they claimed the project failed to maximize the retention of old-growth and large trees due to the lack of a specific minimum diameter for large trees. Molloy found nothing in the statute required such a quantitative approach, and supported the Forest Service qualitative analysis.

Finally, AWR and NEC argued that the project wasn’t appropriately located within either the Wildland-Urban Interface or the required fire condition classes. The area is largely within the Tri-County Regional Community Wildfire Protection Plan’s wildland-urban interface, but they claimed it is actually an “intermix” community. The challenge was waived because the groups didn’t raise the claim during the Willow Creek Project’s public comment period. Molloy also noted it would have failed on its merits because interface, intermix and occluded communities all qualify as urban woodland interface communities.

Molloy dismissed the claim that the Willow Creek Project’s biological assessment failed to analyze interdependent or interrelated actions on protected species and habitats. He found they didn’t include language to support that assertion in their notice of intent to sue. According to the decision, plaintiffs must provide written notice to the agency at least 60-days before filing an Endangered Species Act claim. He dismissed a similar claim against the North Bridger’s Project as being without merit because nothing suggested it would not have been approved had it gone through the full NEPA process.

The groups also argued that, under the Endangered Species Act, consultation with the Fish Wildlife Service should be re-initiated on the Blackfoot Travel Plan because the Helena National Forest Plan was amended in 2018 with new standards for grizzly habitat. They also contend the amendments weren’t analyzed in the Willow Creek Biological Assessment. However, the court dismissed the claims for lack of subject matter jurisdiction, since the challenges were “tangential to the Willow Creek Project, at best,” and weren’t included in the notice of intent to sue.

In relation to impacts on adjacent IRAs, Molloy didn’t consider the groups’ challenge as it related to Willow Creek because AWR and NEC didn’t plead it. Nevertheless, the same challenge failed on the North Bridger Project because the regulatory basis for it didn’t apply.

Michael Garrity, Executive Director of the Alliance for Wild Rockies told the BVD they are consulting with their attorneys about whether they will appeal the ruling.

 

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