Legal fight continues over Basin Creek logging

By Justin Post, of The Montana Standard - 01/31/2007

Attorney fees are rising and more motions filed as environmental groups fight to keep trees from falling in the Basin Creek Reservoir area, south of Butte.

Butte-Silver Bow taxpayers spent $30,459 in 2006 to defend logging in the area, and attorneys on both sides began 2007 with a tit-for-tat exchange of legal documents.

It’s unknown when an agreement will be reached, said county Attorney Bob McCarthy.

“It’s tied up in the bowels of the legal system,” he said.

A lawyer representing the Forest Service filed a motion Jan. 9 seeking to dismiss an appeal over the logging.

WildWest Institute and the Alliance for the Wild Rockies responded with a Jan. 18 motion defending its appeal.

And Aaron Avilla, a lawyer with the Department of Justice’s Environmental and Natural Resource Division, said he is preparing a second motion on behalf of the Forest Service.

Avilla argues that the Ninth Circuit Court of Appeals in San Francisco has no jurisdiction over the matter since the case is still pending in U.S. District Court in See BASIN CREEK, Page A7 Missoula.

Not so, say environmentalists.

The groups appealed after U.S. District Judge Donald Molloy agreed to lift an injunction on the timber harvest as soon as the Forest Service completes a soil analysis and shows it complies with environmental laws.

The judge also rejected a claim by the environmentalists that the logging would impact black-backed woodpeckers, northern goshawks and the American pine martens.

The environmental groups said the judge didn’t have authority to require a federal agency to conduct a soil analysis. They believe his jurisdiction in the case ended with the June ruling.

“This just goes to illustrate one problem with the lower court’s expansive view of its jurisdiction and authority ...,” the appeal reads.

Judge Molloy disagrees.

The judge added to the barrage of legal documents by firing off his own opinion. The judge said he has jurisdiction over this case even while an appeal is pending at the Ninth Circuit.

He pointed to his request for the Forest Service to complete the soil analysis before he lifts the injunction.

The Forest Service has completed that study and is reviewing public comments that will be used to develop a final report, officials said. It’s unknown when the work will be completed, said Jack de Golia, public affairs officer for the Beaverhead-Deerlodge National Forest.

The Forest Service proposed its Hazardous Fuels Reduction Project in the Basin Creek Reservoir area in 2004. Beetle-killed lodgepole pine were to be logged on 2,600 acres.

The goal is to reduce future fire risk to homes around Roosevelt Drive and decrease the chance of a catastrophic wildfire that could harm water quality in the Basin Creek Reservoir, source of about 40 percent of Butte’s water.

R-Y Timber started on the project in the fall of 2005, but then work stopped around Thanksgiving when Molloy issued a temporary injunction pending appeal. Butte-Silver Bow has also intervened in the case, hoping to move the project forward.

— Reporter Justin Post may be reached via e-mail at justin.post@lee.net or by telephone, 496-5572.