by Sherry Devlin, the Missoulian
The 9th U.S. Circuit Court of Appeals has slapped down the Lolo National Forest’s plan for logging in areas burned during the 2000 wildfire season, saying the Forest Service did not take “the necessary hard look” at the effects of logging on unroaded areas.
“The discussion of the impact on unroaded areas was superficial,” the court ruled in a 2-1 decision, with Circuit Judge Alex Kozinski dissenting.
“It is well established in this circuit that logging in an unroaded area is an ‘irreversible and irretrievable’ commitment of resources that ‘could have serious environmental consequences,’ ” the ruling continued.
However, the judges endorsed the Lolo forest’s analysis of the post-burn project’s effect on water quality, calling it “extensive.”
“The Forest Service’s analysis clearly indicates that the project’s overall impact on water quality will be positive,” the judges said.
After the first few years, the work will significantly reduce the amount of sediment in drainages damaged by the fires of 2000, the court ruled, including Trout, Ninemile, Flat and Big Blue creeks and the Clark Fork River.
Released Thursday by the Lolo forest, the 9th Circuit ruling turned on its head an earlier decision by U.S. District Judge Don Molloy of Missoula.
Molloy found no fault with the Lolo’s analysis of unroaded areas, but placed an injunction on the post-burn project because he believed foresters knew too little about the possible impacts on water quality.
The Court of Appeals dissolved Molloy’s injunction, then declared the post-burn project illegal because of the potential impact on unroaded areas.
About one-third of the project area, or nearly 42,000 acres, is unroaded.
The Lolo forest intended to log about 2,800 acres within unroaded areas.
In all, the post-burn project included salvage logging of 2,322 acres and commercial thinning of 2,470 acres.
Environmentalists who challenged the logging hailed the 9th Circuit ruling “a great victory” Thursday, while also lamenting the court’s lack of concern for the water-quality issue.
“We see this as a victory for the people of Montana,” said Len Broberg, conservation chair of the Montana Chapter of the Sierra Club, which joined Alliance for the Wild Rockies in challenging the post-burn work.
“The Forest Service cannot log substantial unroaded areas without looking at what would happen to water quality, wildlife habitat and quiet recreation,” Broberg said. “These areas have important values that are substantially changed by logging.”
At the Lolo National Forest, public information officer Sharon Sweeney said officials were still reviewing the court’s ruling and did not know how they will – or can – proceed.
Salvage logging had started in the burned areas when Molloy shut down the post-burn project late last April.
That stoppage, though, was based on Molloy’s contention that either the state or the U.S. Forest Service needed to calculate the “total maximum daily load” of sediment five damaged streams in the project area could withstand.
Without that calculation, Molloy said, there could be no meaningful analysis of the impact of logging on those streams.
Not so, said the Court of Appeals. The Forest Service took a “hard look” at the effect of logging on water quality.
The shortfall was in the Lolo forest’s analysis of the potential impact on unroaded areas, the 9th Circuit insisted.
“Simply disclosing the fact that the unique qualities of the unroaded areas may be diminished does not suffice,” the judges ruled. “It can hardly be called nitpicking to require the barest minimum of analysis with respect to the characteristics of unroaded areas.”
Kozinski, whose home bench is in Pasadena, Calif., filed a six-page dissent to the unroaded portion of the ruling.
“As it turns out, the project will actually increase the amount of unroaded acreage by decommissioning 224 miles of roads, thereby adding 2,000 acres of additional roaded area,” Kozinski wrote. “My colleagues never acknowledge this benefit.”
Any damage done to the wilderness qualities of the unroaded areas can be reversed, the judge said.
To satisfy the appeals court, the Forest Service will be “needlessly” delayed by another two years, Kozinski predicted, in a “much-needed response to an emergency that is already three years old.”
However, Alliance for the Wild Rockies executive director Michael Garrity said the 9th Circuit has long held that logging creates significant and irretrievable changes in unroaded areas of the national forest.
So no one should have been surprised by the ruling, he said.
“Our contention was that this was the law of the land in the 9th Circuit for years,” Garrity said.
Thirty-four tracts of unroaded forestland are included in the Lolo’s post-burn project area. They range in size from less than five acres to about 6,000 acres.