Alanna Madden

(CN) — The issue of whether the U.S. Forest Service can amend longstanding protections for grizzly bear and bull trout habitat in Montana’s Flathead National Forest came before a Ninth Circuit panel in Seattle on Friday, where attorneys for Swan View Coalition and the government argued over whether the lower court erred in denying the environmental group’s claims that the government violated the National Environmental Policy Act.

In April 2019, Swan View sued the U.S. Fish and Wildlife Service challenging its revised 2018 Flathead Forest Plan and accompanying environmental impact statement and biological opinion. Swan View claimed Fish and Wildlife and the Forest Service failed to consider the effects of the revised plan’s new rules governing roads on bears and trout and their assertion that the plan would maintain on-the-ground conditions before the revision.

More specifically, Swan View says the Forest Service’s reliance on Fish and Wildlife’s biological opinion violates the Endangered Species Act and the National Environmental Policy Act because the revised plan amends previous requirements to limit road miles and reclaim excess roads in the forest. Such measures, Swan View argued, ensured a no net increase in the total number of roads, limiting wildlife disturbance in the Flathead Forest.

“The 2018 revised plan, which replaced former forest plan requirements, asserted that the Forest Service will substantially comply with these road management standards going forward by maintaining habitat conditions that existed in 2011,” Swan View says in its complaint. “However, this assertion is deceptive, because the revised plan moved the goal posts on what is required to ‘reclaim’ a road.”

Under the revised plan, Swan View says, the Forest Service can build new roads as long as it “reclaims” others by placing a boulder or fallen tree in front of them. Previously, Swan View claims the agency was required to reclaim roads by placing natural forest debris over the road for 10 years.

In June 2021, U.S. District Judge Donald M. Molloy partially granted Swan View’s motion for summary judgment, ruling that Fish and Wildlife’s biological opinion for the revised plan violated the Endangered Species Act by failing to consider effects on grizzly bears from roads with unauthorized motor use. Molloy also found that the biological opinion did not consider impacts to bull trout because it abandoned former requirements to remove all stream-aligned culverts when closing roads.

Molloy did not, however, agree with Swan View’s claims that the Forest Service’s revised plan violated the National Environmental Policy Act, prompting the Forest Service to rerelease a forest management plan in June 2022 that only addressed unauthorized road use.

Swan View appealed, and on Friday attorney Benjamin Scrimshaw argued that Swan View’s National Environmental Policy Act claims are substantially similar to those raised for its Endangered Species Act claims and should be heard on its merits — particularly in that the Forest Service’s plan does not address how grizzly bears have a learned behavior of avoiding all roads whether they are used or not.

As for bull trout, Swan View argues the Forest Service violated the National Environmental Policy Act by failing to consider impacts to bull trout and their critical habitat by eliminating previous requirements to remove culverts that prevented harmful sedimentation of bull trout streams. In the context of the Endangered Species Act, Swan View notes Judge Molloy deemed it “inexplicable” for Fish and Wildlife to determine that culvert removal is no longer required.

Arguing for the government, attorney Michael Gray said Swan View’s claims are moot because the initial biological opinion has already been replaced. Even if it were not, he argued, Swan View’s claims that unused roads affect grizzly bears are without merit.

“Opposing counsel says that the biological opinions reflect that roads that have been made impassable and not used affect the grizzlies. Is that correct?” asked U.S. Circuit Judge Sandra S. Ikuta, a George Bush appointee.

“I believe it is incorrect,” Gray answered, stating there is no science to back the claim and that other studies indicate a positive selection toward areas with closed roads.

Gray also disagreed with Swan View’s assertion that the Forest Service must break down unused roads before they can be taken out of their total road density calculations.

“That’s just not the way the Forest Service ever interpreted the reclaimed road,” Gray said. “What a reclaimed road says is that has to be treated in such a manner that it no longer functions as a road or trail and has a legal closure order until reclamation treatment is effective.”

Meanwhile, attorney Sara Ghafouri for intervenors American Forest Resource Council and Montana Logging Association said Swan View is incorrect that an Endangered Species Act violation automatically leads to a National Environmental Policy Act violation, the latter of which is a procedural issue, not a substantiative one.

Ghafouri also denied that the agencies failed to take a hard look at the impacts of unused, impassable roads, stating the Forest Service addressed the issue head on in its environmental impact statement.

“They address the Mason Waller 1997 study but also explain that the study determined that bears did not avoid and even selected closed roads or roads that received less than 10 vehicles a day,” Ghafouri said, adding that despite the agency’s inability to meet its previous road density standards, the forest’s bear population and its distribution has continued to increase.

Senior U.S. Circuit Judges Michael Daly Hawkins and William A. Fletcher — both Bill Clinton appointees — rounded out the panel, which took the arguments under submission.