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Judge: USFWS must analyze how illegal roads affects grizzlies, bull trout

Lawsuit says Flathead NF plan doesn’t protect threatened species
Posted at 3:39 PM, Mar 15, 2024
and last updated 2024-03-15 17:39:04-04

MISSOULA — In its second evaluation of the Flathead National Forest management plan, the U.S. Fish and Wildlife Service (USFWS) still failed to consider the effects of ineffective road closures on grizzly bears and bull trout, according to a federal magistrate judge.

On Monday, Missoula federal Magistrate Judge Kathleen DeSoto issued a ruling mostly in favor of two conservation groups who had sued for a second time over the way the Flathead Forest’s 2018 management plan changed how the forest dealt with old roads in grizzly bear and bull trout country.

“The Revised Biological Opinion failed to adequately consider the impact of ineffective road closures on the 2011 baseline and on grizzly bear populations as a whole. The Revised Biological Opinion further failed to consider that the new take statement regarding culvert removal does not apply to roads rendered impassable under the Revised Plan. Therefore, the Forest Service violated the (Endangered Species Act) to the extent it relied on the Revised Biological Opinion’s flawed road density determinations and culvert removal analysis,” DeSoto concluded in her 47-page ruling.

DeSoto found that the U.S. Fish and Wildlife Service had still not properly evaluated how ineffective forest road closures and the related illegal motorized use of closed roads affected grizzly bear populations or habitat.

In 2017, the Fish and Wildlife Service issued its first biological opinion on the 2018 Flathead Forest plan, which Missoula federal Judge Donald Molloy found to be inadequate in its consideration of how roads might affect grizzly bears under the Endangered Species Act. In response to Molloy’s order, the Flathead National Forest initiated a second consultation with the Fish and Wildlife Service, which resulted in the second biological opinion published in 2022, which led to this lawsuit.

The 2022 Biological Opinion included a section on illegal motorized road use that included survey results showing that road closures are ineffective about 8% of the time. The opinion went on to conclude that illegal motorized use wouldn’t jeopardize bears because the effects are temporary, being spread out across the forest and throughout the year. Plus, the effects on bears are “typically not known.”

DeSoto disagreed, ordering the Fish and Wildlife Service to include illegal road use in its finding of effects on grizzly bear populations or habitat.

She referred to the April 2023 ruling on another lawsuit over the Knotty Pine Project near Troy on the Kootenai National Forest, where Missoula federal district Judge Dana Christensen also found the Fish and Wildlife Service had failed to consider the effect of the illegal use of forest roads on an even smaller grizzly bear population. There, Christensen said the Fish and Wildlife Service “parroted the apparently boilerplate assertion that has become familiar to the [c]ourt in recent years: because unauthorized motorized access is unpredictable, its effects on grizzly bears are unknowable.”

“The court noted that although use of any particular road may be temporary, “the ongoing chronic problem of ineffective closures and unauthorized motorized access is permanent,” DeSoto wrote in her 47-page ruling.

“The Revised (biological opinion’s) reliance on the “unknown” effects and “spatially disparate and temporary” nature of unauthorized motorized use thus fails to consider an important aspect of the problem and offers an explanation that runs counter to the evidence.”

However, while DeSoto wants consideration of illegal road use, she didn’t agree with the conservation groups that the Fish and Wildlife Service needed to consider the difference between decommissioned roads and roads made merely impassible when it came to grizzly bears. She agreed with the federal agencies that the roads have existed during the time that the grizzly bear population has continued to recover so they didn’t jeopardize the species regardless of their type of designation.

The 2018 Forest Plan had replaced guidance under a 1995 Forest Amendment, which required roads to be decommissioned or physically eliminated, with a policy of making roads “impassible” by blocking the first 50-300 feet. This leaves the remainder of the road open, enabling illegal use, but also allows the Forest Service to go back and reopen roads as needed. The Forest Service didn’t have to include decommissioned roads in its road density totals, but the 2018 Forest Plan extended that exception to impassible roads also.

However, the case was different for threatened bull trout, for whom the No. 1 threat is silt and sediment from roads in what should otherwise be clean mountain streams. Culverts normally allow streams to flow unhindered beneath active roads, although they occasionally have to be cleared of debris. If left unattended, culverts become blocked and cause roads to flood and wash more sediment into a stream.

When the Forest Service decommission roads, they remove the culverts. But under the 2018 plan, that’s not the case outside of a particular conservation area or for the new category of “impassible” roads. For that reason, Molloy found in the first Flathead Forest lawsuit that the 2018 Forest Plan’s policy of not removing culverts on decommissioned roads posed a danger to bull trout. DeSoto agreed, saying the new 2022 biological opinion and incidental take permit didn’t uphold the Endangered Species Act.

“Therefore, given that removal of culverts is an effective sediment-prevention method for both (impassible) and decommissioned roads, it is inexplicable why FWS limited its analysis to the Forest Service’s abandonment of culvert removal requirements for decommissioned roads. Indeed, the agency’s own Recovery Plan suggests that sedimentation impacts may be addressed by “decommissioning surplus roads and removing culverts and bridges on closed roads. FWS’s analysis therefore fails to consider an important part of the problem and is arbitrary and capricious,” DeSoto wrote.

However, DeSoto agreed with Molloy that the Fish and Wildlife Service didn’t have to consider the contribution of sediment from impassible roads or new project roads.

DeSoto ordered the federal agencies to go back and review their errors but in the meantime, she’s allowing all proposed logging projects, along with their new roads, to move forward.

Friends of the Wild Swan and the Swan View Coalition, which were represented by Earthjustice attorney Tim Preso, said they are reviewing the ruling and considering all options to ensure that important grizzly bear and bull trout habitat is protected from harmful road-building projects until the government complies with federal law.

“We are pleased that the court once again recognized that roads harm grizzly bears and bull trout,” said Arlene Montgomery, Friends of the Wild Swan program director, in a release. “The Forest Service needs to heed these findings and provide on-the-ground protections for these imperiled species.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.