Laura Lundquist

(Martin Kidston) A federal judge has found that the Flathead National Forest broke the law in a few more ways when it refused to consider the effect of certain roads on grizzly bears and bull trout.

On Friday, Missoula federal district judge Dana Christensen upheld most of Missoula federal Magistrate Judge Kathleen DeSoto’s ruling on a challenge to the way the 2018 Flathead Forest Management Plan dealt with forest roads.

The U.S. Forest Service and Fish and Wildlife Service had objected to three aspects of DeSoto’s March 12 ruling. So Christensen reviewed the ruling to answer the objections and found none were valid.

“Defendants object and argue that the Court should grant summary judgment for Defendants on all claims, and, therefore, the Forest Service’s reliance on the Revised (Biological Opinion) likewise did not violate the (Endangered Species Act). Because the Court has found that Defendants violated the ESA, the Court overrules Defendants’ objection,” Christensen wrote in his 49-page ruling.

The Forest Service failed to prove it didn’t violate the Endangered Species Act by relying on the revised biological opinion issued by the Fish and Wildlife Service in 2022 after federal district judge Donald Molloy found the original 2017 opinion of the new Forest Plan was insufficient and ordered a new opinion. But the judges found two problems with the new opinion.

Grizzly bears avoid all roads and are more negatively affected as the road density increases in an area because there’s a greater risk of human interaction. Even closed roads have an effect. So scientists have set numerical limits for road densities in grizzly bear habitat, and the Flathead Forest includes more than 2 million acres of primary grizzly conservation habitat.

In its new forest plan, the Flathead Forest changed the way it dealt with closed and decommissioned roads on paper. Instead of completely reclaiming an unused road before removing it from road-density calculations, the 2018 Forest Plan said it was sufficient just to make a road “impassable,” meaning the road is blocked to motor vehicles at its entrance but is still there. So that meant the Flathead Forest could claim the road density was lower than what was actually on the ground.

It also meant that the Forest Service was reclaiming fewer roads, relying instead on making them merely impassable. That meant they weren’t removing old culverts, which could fail and have a detrimental effect on bull trout.

The plaintiffs - Swan View Coalition and Friends of the Wild Swan - had found numerous examples of motor vehicles bypassing road barriers that were assumed to make roads impassable. The Forest Service itself has also documented illegal use, varying from 9% to 57% of roads, depending on the forest.

Christensen found that DeSoto ruled correctly when she found that the Fish and Wildlife Service hadn’t considered in its revised biological opinion how leaving impassable roads on the forest would affect bull trout and grizzly bears. In particular, the agency didn’t consider how the illegal use of impassable roads affected grizzly bears because it claimed   - as it has in at least two other cases - that the effect hasn’t been studied so there was no way to know. Christensen said the agency should exercise its expertise.

“This Court has squarely rejected the ‘boilerplate’ assertion that unauthorized motorized access is unpredictable and, therefore, its effects on grizzly bears are unknowable. Yet, FWS relies on this same flawed premise in reaching its conclusion in the Revised (Biological Opinion). The Court has also squarely rejected the argument that unauthorized motorized use is “spatially disparate and temporary,” concluding that such use, and its effects, are actually permanent,” Christensen wrote.

In the one instance where Christensen overruled DeSoto, he agreed with the plaintiffs’ objection that the Fish and Wildlife Service hadn’t provided a sound reason for not considering the effect of impassable roads on grizzly bears. Saying that the bear population was increasing wasn’t sufficient because it didn’t address the effect of roads, while several scientific studies document a negative effect.

Both DeSoto and Christensen declined the plaintiffs’ request to put Flathead Forest logging projects on hold while the Fish and Wildlife Service rewrites its biological opinion, which could require the Flathead Forest to modify its forest plan. But the plaintiffs, represented by Earthjustice, were pleased with Christensen’s findings.

“We are pleased to see the courts once again confirm that, as long as roads exist on the landscape, whether open or closed to motorized use, they are a threat to grizzly bears and bull trout,” said Keith Hammer, Swan View Coalition chair. “The key is to quit building more logging roads. A truly sustainable logging program would not require ever more roads into ever-more pristine forests.”

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