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Court upholds limits on Flathead Forest roads in grizzly territory

Grizzly Bear
Posted at 5:28 PM, Jun 29, 2021
and last updated 2021-06-29 19:28:34-04

MISSOULA — Federal land and wildlife managers failed to safeguard grizzly bears when they sidestepped road density limits in the Flathead National Forest Plan. But other parts of the plan can stand, according to a federal court ruling.

On Friday, less than a month after hearing oral arguments, Missoula federal district judge Donald Molloy issued a 64-page ruling finding the U.S. Fish and Wildlife Service (USFWS) hadn’t done its duty in analyzing how parts of the new Flathead National Forest Plan – specifically those related to road density and closings – could affect threatened grizzly bears.

But Molloy also found the U.S. Forest Service had done its due diligence in most cases. So the Plan remains active although the Flathead National Forest must rewrite some parts.

Roads are bad for bears. Research has shown that extending roads into wild areas increases the chance of human-bear conflict, which often results in dead bears. Even the USFWS Biological Opinion challenged in the lawsuit said: “the presence of roads and associated human activities has detrimental impacts to grizzly bears.” Bears learn to avoid roads, so adding more roads can force bears out of even the best habitat. Thus, in “secure grizzly habitat,” the fewer the roads, the better.

In particular, Molloy questioned why the Flathead National Forest Plan abandoned grizzly bear protections that became Forest Service policy in 1995. That’s when the agency created Amendment 19, which set standards for motorized use and road density within grizzly management units so there would be no net decrease in the amount of secure core area. The aim was to have at least 68% of each unit qualify as security core areas. Amendment 19 also helps bull trout because fewer roads mean fewer stream culverts are crushed or blocked with debris.

The 1986 Flathead Plan incorporated Amendment 19, which required the forest to abandon a number of existing but supposedly closed roads. But the new plan ignored it. Instead, managers chose to use the density of roads existing in 2011 as their basis, arguing that the Northern Continental Divide Ecosystem grizzly bear population was growing in 2011 so the roads must not have been a problem.

But the road density in some places in 2011 was far greater than the 1 to 2 miles per square mile required by Amendment 19. Under the plan, the Flathead Forest wouldn’t have to do anything with more than 500 miles of road previously planned for abandonment. In addition, there were few if any limits on the construction of new roads. The Flathead National Forest has plans to build 70 miles of logging roads over the next two years.

The plaintiffs – the Swan View Coalition, Friends of the Wild Swan, WildEarth Guardians and Western Watersheds Project – argued that the choice of the 2011 conditions was arbitrary and that the U.S. Forest Service should follow Amendment 19. They also showed that many closed Forest Service roads get a lot of use because the agency often merely blocks the road entrance. In May, EarthJustice attorney Tim Preso argued that wasn’t sufficient.

“If all you have to do to make a road not count against limits is pile debris over the first 50 feet, it’s a lot easier and cheaper to build roads than it is if you have to rehabilitate an entire roadway under Amendment 19,” Preso told Molloy.

On Friday, Molloy agreed with the plaintiffs. Molloy even cited a 2004 Swan View Coalition survey on the Swan Ranger District, which found that roughly 68% of closed roads showed use because of ineffective closure methods.

“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.

Molloy agreed the choice of conditions in 2011 was arbitrary. Even had the choice been acceptable, the U.S. Fish and Wildlife Service should have analyzed whether the new Forest Plan would have exceeded the 2011 baseline, which was a reflection of conditions existing while Amendment 19 influenced the plan. But the agency didn’t do that.

The USFWS also didn’t explain why it didn’t recommend culvert removal as part of road abandonment to aid bull trout survival. Molloy pointed out that the agency’s 2015 Bull Trout Recovery Plan emphasizes the importance of culvert removal and road decommissioning. But then the agency backed off, saying culvert removal wasn’t necessary in its 2017 biological opinion on the Flathead National Forest plan. Molloy acknowledged that part of the reasoning is because the roads aren’t being accessed, but evidence showed that at least two-thirds are being used.

Finally, Molloy said the Fish and Wildlife Service had failed to analyze how the new plan would harm grizzly bears on Forest Service land outside of the NDCE core area. So the biological opinion is flawed, as is the agency’s calculation of bears killed or affected by the plan, and the Flathead National Forest erred in basing its plan on a flawed opinion, Molloy wrote. However, he overruled the plaintiffs’ other charges such as decisions on allowable snowmobile use.

Molloy decided against vacating the new plan, partly because all parties agreed that, for most details, the new plan is more protective overall than the 1986 plan. Also, the Flathead Forest has approved six logging projects that would be stalled or suspended if the plan was vacated, and that could hurt businesses that already have contracts. Molloy decided the plan could stay in place because each of the six projects now has to be reexamined to see if the related roads would affect grizzlies or bull trout.

The plaintiffs were mostly pleased with Molloy’s decision.

“We are very happy that the court agreed with us that the federal agencies fell short on their (Endangered Species Act) duties. But it is unfortunate that the revised forest plan is allowed to remain in place, because it means destructive logging and road building will continue to harm grizzly bears and bull trout while the agencies try to fix the flaws. Guardians and our allies will obviously remain vigilant in defense of these threatened species and the habitat they need to survive,” said Marla Fox, staff attorney at WildEarth Guardians.

The Flathead National Forest and the U.S. Fish and Wildlife Service have not indicated if they plan to appeal.