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Judge recommends halt to BLM project in Elkhorns - Montana Standard

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Elkhorn Mountains

Elkhorn Mountains

Bureau of Land Management Montana and Dakotas

A U.S. magistrate judge has recommended that a Bureau of Land Management prescribed burning project in the Elkhorn Mountains be halted as a court case proceeds.

Judge Timothy J. Cavan made the recommendation Monday on BLM’s Iron Mask Project northwest of Townsend in response to a lawsuit from Alliance for the Wild Rockies and Native Ecosystems Council. The case will now need to go before a U.S. District Court judge for a final determination.

The Iron Mask Project calls for cutting juniper and limber pine along with prescribed burning on about 5,000 acres northwest of Townsend. The project included planning for a roughly 5,600-acre property the agency acquired through the Rocky Mountain Elk Foundation and provides for a “forage reserve” grazing system, which would allow livestock grazing in cases where other grazing allotments were unavailable due to circumstances such as drought or wildfire.

The groups, which successfully sued BLM to halt the project in 2018, filed suit again in March alleging the agency had failed to comply with the court order in the original case.

In 2019, the court ruled the agency had failed to adequately analyze the “cumulative effects” of past and future projects in the area when it approved Iron Mask. The judge ruled for BLM on other legal challenges, but required the agency to perform more analysis and render a supplemental decision on cumulative effects.

BLM conducted additional analysis before bringing the project back this year and commencing with some burning before suspending operations due to COVID-19.

In March the groups again filed suit, alleging the BLM’s follow-up analysis did not delve deep enough. The agency says it analyzed impacts to elk, bighorn sheep and pronghorn, but the lawsuit alleges BLM does not explain why it chose those species. The analysis also does not look at several species listed as “sensitive” that could be affected by juniper removal or prescribed burning, the lawsuit alleges.

Cavan believes the alliance and council will largely succeed with the lawsuit and recommended the project be halted by preliminary injunction as the case plays out.

Cavan found the BLM’s additional analysis used to bring the project back inappropriately  tiered to the original analysis, which the court found to be deficient. The judge called the tiering “confounding.”

“Tiering the (supplemental environmental assessment) back … at least in context of cumulative impacts to wildlife, frustrates the very purpose of the Court’s order in Iron Mask I to perfect the 2015 EA’s deficiencies,” the judge wrote.

Secondly, Cavan agreed with the groups that BLM’s analysis of four big game species for impacts to wildlife did not touch on other relevant species including birds, fish and amphibians. BLM did not offer supporting evidence as to the frequency other species occur in the area.

“By Defendant’s own admission, there is some 'slight' impact of the proposed treatments on bird species,” the judge wrote. “It is the cumulative impacts of those individual impacts over time and space that the Court explicitly ordered Defendants to analyze for vegetation and wildlife.”

Cavan further found that halting the project pending more analysis was in the public’s interest and that the groups demonstrated they would suffer legal “harm” if the project proceeds.

In a statement Mike Garrity, executive director for the alliance, pointed to the Elkhorns’ designation as a wildlife management area.

"Yet, the Iron Mask Project, which is in the Elkhorn Area of Critical Environmental Concern, authorizes cutting and burning juniper trees and limber pine on 5,397 acres to benefit cattle, not wildlife,” Garrity said. “Judge Timothy Cavan wrote that the BLM ignored the court's order to analyze the cumulative impacts of the project on wildlife because the BLM’s analysis was limited to the effects of the burning on big game but did not analyze the overwhelming negative effects of burning sagebrush-juniper habitat on other wildlife, including birds.”

BLM also issued a statement to a request for comment on the judge’s recommendations.

"We're reviewing the court's findings and recommendations in order to determine the appropriate next steps for us to take,” spokesman David Abrams said.

Reporter Tom Kuglin can be reached at 447-4076 @IR_TomKuglin

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