The Russell Smith Courthouse in June 2024 after a hearing on a lawsuit over a timber project against the U.S. Forest Service and Fish and Wildlife Service. (Keila Szpaller/The Daily Montanan)
If a federal judge stops the timber sales that are part of the Pintler Face Project, the largest employer in Powell County, Sun Mountain Lumber, might not be able to keep its mill running, said a lawyer representing the company.
Another company, Iron Pine Co., would have to lay off 12 people, said Julie Weis, of the Haglund Kelley Firm in Portland, Oregon.
“The evidence before the court is that an injunction would create an existential threat for at least Iron Pine and a serious threat to the viability of Sun Mountain,” Weis said.
But if the court allows the project to continue, it means 1.1 million acres of lynx habitat will be erased from a single national forest map, and without any opportunity for the public to comment, argued Rebecca Smith, a lawyer representing conservation groups who sued the U.S. government earlier this year.
And the work underway is a clearcutting project, Smith said, representing Yellowstone to Uintas Connection, Native Ecosystems Council, and Alliance for the Wild Rockies. The project encompasses more than 73,000 acres and covers 115 square miles adjacent to the Anaconda-Pintler Wilderness Area.
“We know that that’s probably the most harmful thing that you can do in lynx habitat is to clearcut the forest,” said Smith, with the Public Interest Defense Center in Missoula.
But the plaintiffs don’t specify how lynx will actually be harmed, said Erika Furlong, a lawyer representing the U.S. Forest Service and U.S. Fish and Wildlife Service. And if the situation truly was an emergency, she said, the groups shouldn’t have waited 2.5 years to go to court.
Hayley Carpenter, also on behalf of the government, estimated 67 jobs and $3.8 million in labor income just this year will be lost if the project is stopped, “and some of this loss could be permanent.”
Tuesday, U.S. District Court Judge Dana Christensen heard arguments in a case over a timber project and mapped lynx habitat in the Beaverhead-Deerlodge National Forest. The parties argued about whether the court should temporarily stop the project as the case unfolds.
In February 2024, three conservation groups sued the government alleging decisions to approve the project were arbitrary and capricious, upend mapped lynx habitat, and violate the National Environmental Policy Act, NEPA.
Located 10 miles northwest of Wise River, the project includes clearcutting, pre-commercial logging, burning, underburning and “lop and scatter,” or trimming less desirable trees and sprinkling pieces on the forest floor.
At the hearing in U.S. District Court in Missoula, the plaintiffs argued the changed maps represent “major federal action” under NEPA, but the public never had an opportunity to raise objections to the new maps. And the maps unlawfully strip out habitat for Canada lynx, listed as threatened in 2000 under the Endangered Species Act.
The government, however, said the project is already underway, and it’s in the public interest when it comes to forest health, the local economy, and even grizzly bears. The government also argued the conservation groups only make “boiler-plate assertions” of “irreparable harm,” but they don’t spell out actual harm, and they’re late with their arguments anyway.
Private companies Sun Mountain and Iron Pine intervened in the case, and they argued the four salvage timber sales that are part of the project have been moving forward, one is already complete, and at least two others, if not three, will be finished by February 2025.
The companies can’t simply go out and find other logs or other work if the court stops the sales, said their lawyer; they are part of a fragile timber industry in western Montana, and if they aren’t viable, the Forest Service itself will suffer as it tries to address adverse conditions.
“If you don’t have these guys, who is going to do the work?” Weis said.
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The government argued, in part, that the conservation groups jumped the gun in going to court and should first have raised the issues administratively.
But in response to questions from the judge, Smith, representing the conservation groups, said the plaintiffs never did have a chance to exhaust administrative opportunities in at least one decision. A NEPA analysis didn’t take place, she said, and an administrative appeal didn’t happen.
“You cannot fail to exhaust a remedy that never existed,” Smith said.
Smith also addressed the judge’s question, and government’s argument, about the delay in filing the lawsuit; one of the four timber salvage sales in question is already completed.
Smith said the delay is a matter of “supply and demand,” or her lack of availability. Only a handful of lawyers will take on such cases and can successfully litigate them, she said.
She apologized for the delay and said it is not ideal, but she said defendants also contributed to delays in the case — which Weis described as an “outrageous” argument that made her blood pressure rise and wasn’t true.
Christensen also wanted to know how he should handle the allegation a current biological opinion for the project “fails to use the best available science” when the Fish and Wildlife Service is expected to issue a new biological opinion in short order.
The conservation groups allege the biological opinion is needed for the project, but the opinion failed to provide any meaningful analysis of the effects of the project on grizzly bears or offer an environmental baseline of other impacts.
In response, Smith said the new opinion may not remedy the issues, and it isn’t clear when it will be published: “This court is not required to find that an action is moot just because it might become moot in the future.”
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In its defense, the government hammered on the timing of the lawsuit.
Furlong, on behalf of the government, said the generic assertion of irreparable harm is weakened by the delay in going to court, and she said the “sophisticated environmental plaintiffs” would have prioritized the case if the allegation of harm was real.
She also said the conservation groups don’t identify real harms to grizzly bears either. Only one has been seen in the area in two decades, she said, and the project will benefit them by reducing motorized access.
The lawsuit, however, said the Fish and Wildlife Service acknowledged the logging project was likely to adversely affect grizzly bear populations.
Carpenter, also on behalf of the government, argued “imminent completion” of the project is in the public interest. She said it can help decrease another mountain pine beetle epidemic and reduce potentially catastrophic wildfire.
On behalf of the intervenors, Weis said the private companies have been “diligently” moving forward on the timber salvage sales, and they haven’t been expecting delays.
The first of the four sales was awarded in 2022, according to court filings, and Weis said the lateness in bringing the preliminary injunction motion indicates a lack of urgency in the case.
On the cusp of the operating season, however, the lawsuit was filed, Weis said: “At this late stage of the game, people can’t go out and find substitute volume. And Iron Pine can’t go out and find substitute work.”
Sun Mountain and Iron Pine hold contracts related to the salvage timber sales, and work is planned this summer.
Weis also said the conservation groups need to show irreparable harm isn’t just possible, it’s likely, but they haven’t done so. For one thing, Weis said, the only grizzly bear sightings have been male (she cited five near the project in two decades), not females, which require large habitat to reproduce and rear their young.
Judge Christensen wanted to know when the companies would expect to get back to work to complete the three remaining timber salvage sales, assuming the new biological opinion is issued by July 15 as expected.
Weis said the work on Pintler Face No. 1 will restart on July 16, as soon as possible; No. 2 won’t start until August 15 due to a goshawk restriction; and then once the logging crew is done on No. 1, the crew will shift to No. 4. She said the work will need to stop by February 2025, even if the job isn’t completely finished, for bear season.
The judge wanted to know if all of the work could be done by February 2025, and Weis said that was the hope, although some of it was weather dependent.
The judge also wanted to know what remained of the overall project once the timber sales were completed. The lawyers for the government said additional and significant noncommercial work is planned, such as precommercial thinning, understory burns, cutting and burning of grasses, and more.
After the parties made their arguments, Christensen said he considered the matter submitted. He requested the government file the new biological opinion once it’s completed and said he would work quickly.
“I realize that time is the enemy here, so I will endeavor to get a ruling out as quickly as I can,” Christensen said.
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