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Native Ecosystems Council v. Krueger

United States District Court, D. Montana, Missoula Division

August 27, 2014

NATIVE ECOSYSTEMS COUNCIL; MONTANA ECOSYSTEMS DEFENSE COUNCIL, Plaintiffs,
v.
FAYE KRUEGER, Regional Forester of Region One of the U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; and U.S. FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendants

Page 1345

For Native Ecosystems Council, Montana Ecosystems Defense Council, Plaintiffs: Guy R. Knudsen, LEAD ATTORNEY, PRO HAC VICE, NORTHWEST NATURAL RESOURCE ADVOCATES, Pullman, WA; Robert M. Gentry, LEAD ATTORNEY, ROBERT GENTRY LAW, Missoula, MT.

For Faye Krueger, Regional Forester of Region One of the U.S. Forest Service, United States Forest Service, an agency of the U.S. Department of Agriculture, United States Fish & Wildlife Service, an agency of the U.S. Department of Interior, Defendants: Jeremy S. Hessler, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Mark Steger Smith, OFFICE OF THE U.S. ATTORNEY, Billings, MT.

For State of Montana Attorney General, Amicus: Cory J. Swanson, Jonathan W. Bennion, LEAD ATTORNEYS, MONTANA DEPARTMENT OF JUSTICE, Helena, MT.

For Montana Department of Natural Resources and Conservation, Amicus: Anne W. Yates, LEAD ATTORNEY, MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Helena, MT; Mark Phares, LEAD ATTORNEY, STATE OF MONTANA, Department of Natural Resources and Conservation, Missoula, MT.

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ORDER

Dana L. Christensen, Chief United States District Judge.

Plaintiffs Native Ecosytems Council and Montana Ecosystems Defense Council move the Court for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. Plaintiffs seek to enjoin all activities authorized by the U.S. Forest Service's April 7, 2014 Decision Notice for the Red Mountain Flume Chessman Reservoir Project. For the reasons explained, the motion is denied.

Background

Since 2006, the Helena National Forest has been subjected to a massive Mountain Pine Beetle infestation which has left a vast sea of standing dead trees throughout the Forest. The beetle-killed trees have begun falling and 90% of them are predicted to fall within the next 5 to 10 years. This situation has led to massive fuel loading on the forest surface which, according to fire scientists, presents a dangerous situation for high intensity wildfires, as well as complications for fighting any fires that may ignite.

The Chessman Reservoir sits in the southern portion of the Helena National Forest and is the primary water source for the City of Helena. The Red Mountain Flume is a 4.8 mile structure that drains water from local streams into the Chessman Reservoir. The Flume is constructed with materials that can be damaged in fire, including wooden trestles and sheet metal.

Both the reservoir and the flume are surrounded by extensive stands of beetle-killed lodge pole pine forest. As in other areas of the Forest, the beetle-killed trees around the reservoir and flume have begun falling and are predicted to continue to fall over the course of the next several years. As a result, fuel loads on the forest floor surrounding the Chessman Reservoir and the Flume are very high and will continue to increase as the dead trees continue to fall.

The elevated fuel loads present the possibility of dangerous and intense wildfire with the potential to damage soils and to produce erosion and large infusions of post-wildfire ash into the reservoir. The infusion of large amounts of wildfire ash and other sediment into the reservoir could only be dealt with by the City of Helena through exceedingly expensive treatment efforts and the purchasing of water from other sources. Other cities in western states have experienced severe and expensive damage to their water supply as a result of large post-wildfire ash infusions.

The falling trees have also damaged and threaten to damage the Flume's structure and a fence that surrounds the reservoir. The fence surrounding the reservoir is in place to prevent local cattle from grazing in or around the reservoir, which could potentially introduce infectious, fecal-borne pathogens into the water supply, and, in fact, breaks in the fence from fallen trees

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have resulted in incursions by cattle into the area around the reservoir. Currently, the City of Helena is not equipped to eliminate all such pathogens from the water supply, and an expensive upgrade ...


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