Attorneys argue Flathead forest plan doesn’t protect grizzlies, lynx, bull trout

A Missoula federal district judge will decide if the new Flathead National Forest plan must be changed to better protect endangered species, including grizzly bears, Canada lynx and bull trout.

On Thursday afternoon, Judge Donald Molloy heard limited arguments on whether the U.S. Fish and Wildlife Service properly considered the effect of the new Flathead National Forest plan on the three threatened species and, if not, whether the Flathead National Forest needed to put its forest plan on hold while the U.S. Fish and Wildlife Service returned to the drawing board.

Earthjustice attorney Tim Preso, representing the Swan View Coalition and Friends of the Wild Swan, argued that the new Flathead forest plan, published in 2018, changed how the forest would manage its roads and road culverts.

The result could make things worse for threatened species. And yet, the U.S. Fish and Wildlife Service had failed to flag anything as wrong in its Biological Opinion of the plan. Wildlife advocates sued in 2019.

“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. “(The Flathead National Forest has) about 70 miles of road construction and reconstruction planned for the first two years of this plan. Under the past 15 years of Amendment 19, they accomplished a little over 2 miles of road construction. So they’re at a pace of 20 times the amount of road building under Amendment 19.”

Under the previous forest plan with a 1995 amendment – Amendment 19 – a policy of 19% -19% -68% required the agency to ensure that 68% of each grizzly bear management unit was secure habitat, that is free of roads.

Research has shown that adding more roads increases the chance of human-bear conflict, which often results in dead bears. Plus bears avoid roads so they can’t use roaded habitat.

The roads in the remainder of each grizzly management unit can’t exist above certain densities, even if they were closed, because bears, especially females, avoid roads. To meet those standards, the agency had not just closed but reclaimed 730 miles of roads.

However, the new Flathead policy allows the agency to build more miles of roads while doing less with closed roads, because it’s done away with Amendment 19 restrictions so the agency doesn’t have to reclaim roads.

Preso said the Flathead Forest plan allows the agency to block off just the first 50 to 100 feet of a road to count it as “closed” and then remove it from the road-density statistics. However, surveys carried out by nonprofit groups have documented that vehicles still illegally use a percentage of the closed roads. Roads that aren’t fully reclaimed still have an effect on wildlife, so the agency should have to count them.

Finally, under Amendment 19, the agency was supposed to remove all culverts from beneath closed roads, because blocked or damaged culverts increase road erosion. The resulting sediment spilling into forest streams can damage bull trout spawning grounds and habitat.

U.S. Department of Justice attorney Frederick Turner argued that the new plan provides “as much if not more protection” for endangered species, even though the 19-19-68 standard is gone. The Flathead Forest would use a standard of “no net increase” in roads past what existed in 2011.

The Flathead National Forest chose the year 2011 because the grizzly bear population in the Northern Continental Divide Ecosystem had grown at that point, so the agency argued that the roads that existed at that time must have been okay.

Preso argued that the bears had done okay because Amendment 19 was in effect so the agency was meeting higher standards to help the bear.

Turner also argued that the Amendment 19 requirement for culverts wasn’t needed because the new forest plan has a culvert-monitoring plan, which requires Forest Service employees to ensure all culverts on all roads are operating during a six-year cycle.

Turner said the US Fish and Wildlife Service Biological Opinion was sufficient because the Endangered Species Act doesn’t require the service to do side-by-side comparisons of the protections in each plan. It just requires a determination of whether species are in jeopardy and the Service decided the new plan didn’t put species in jeopardy.

However, WildEarth Guardians attorney Marla Fox said the Biological Opinion failed to consider three issues.

Similar to the attempted delisting of the Yellowstone subpopulation, the agency failed to consider what the ramifications would be for bear populations outside the NCDE. Other populations have very low numbers and won’t survive without NCDE bears having the ability to migrate to other populations. The road building planned for some logging projects could limit or stop dispersal into the Cabinet-Yaak and down into the Bitterroot.

Second, Fox said, the 2011 road conditions are based on an assumption that the population was growing and didn’t consider the best science, even though they’re included in the NCDE grizzly bear conservation strategy.

Finally, the US Fish and Wildlife Service approved a certain level of grizzly bear deaths under the new plan but didn’t set a point where the decision needed to be reconsidered if the number of dead bears started increasing.

Molloy kept the attorneys on a tight schedule, limiting each side to 30 minutes, and often interrupted to ask questions. Notably, he asked both sides what they thought the remedy should be, but with the federal attorneys, he prefaced his question with “If the plaintiffs are right…”

The federal attorneys want Molloy to decide that the Flathead National Forest can keep its plan the way it is. But “if the plaintiffs are right,” Turner asked that Molloy send the Biological Opinion and Forest Plan back to the agencies for reconsideration but keep the new Forest Plan in effect.

The Flathead National Forest has six projects already approved with four under analysis so they want those to go ahead. Federal attorney John Tustin said some projects might not even include road building so they wouldn’t be affected either way.

Preso argued that two projects – the Mid-Swan and Frozen Moose projects - together plan to build 70 miles of road. So the wildlife groups want Molloy keep most of the new forest plan in place but put the road and culvert parts of the new forest plan on hold while the agencies reconsider the biological opinion.

Outside the courthouse, Preso said the Flathead National Forest has been moving forward as rapidly as possible with road building since the plan was published.

“They’ve never wrestled with the impact of that,” Preso said. “They pretended it wasn’t going to happen and told everyone that the conditions that existed during the last 20 years are going to continue. Well, we can see already they’re not going to continue.”

The federal attorneys argued it has to be all or nothing – rewrite the entire plan or keep the entire plan. Preso said previous court rulings have allowed for the invalidation of parts of policies and procedures. Molloy asked Preso why his ruling should limit only the parts of the Forest Plan the wildlife groups don’t like.

“I would say the part that’s lawful and poses no threat should stay and the part that’s unlawful and poses a clear threat should go,” Preso said.

Molloy said he would rule as quickly as he could.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.