Kootenai Forest wins access lawsuit

By JIM MANN

Environmental group vows to appeal decision by U.S. District Judge Donald Molloy

The Daily Inter Lake

U.S. District Judge Donald Molloy has rejected all claims in a lawsuit that challenged motorized-access policies aimed at improving grizzly bear habitat on the Kootenai and Idaho Panhandle national forests.

In an Aug. 29 ruling, the Missoula judge rejected eight major claims raised in a lawsuit filed by the Helena-based Alliance for the Wild Rockies and the Lands Council, an organization based in Spokane. The groups were challenging forest-plan amendments that were adopted in 2004 by the two national forests as being inadequate for protecting and recovering threatened grizzly bear populations in the Cabinet-Yaak and Selkirk recovery areas.

Michael Garrity, executive director for the alliance, said the ruling will be appealed.

"If this decision isn't reversed, the grizzly bears in the Cabinet-Yaak are doomed to extinction," he said. "That's the bottom line, and that's why we have to appeal."

The plaintiffs asserted that the Forest Service and the U.S. Fish and Wildlife Service were obligated to go much further in providing protections for grizzly bears. They claimed that the forest-plan amendments were "arbitrary and capricious" in several respects.

But Molloy ruled that the amendments, and the environmental impact statement and biological opinion supporting them, never professed to provide a comprehensive protections for bears.

The EIS, he wrote, "explains that grizzly bears are in trouble and it explains that the plan amendments will slightly improve their habitat conditions. The [EIS] does not state that all problems for the bears will be solved by these amendments."

The purpose, to establish road-density standards, "does not encompass everything possible to prevent harm to grizzlies," Molloy continued.

The ruling essentially supported the government's position that the forest-plan amendments will improve habitat conditions for bears by reducing road densities.

But the plaintiffs maintain that the amendments "only barely improve the status quo."

"We disagree that they are making progress," Garrity said. "We think it's clear that they aren't making any progress."

The Fish and Wildlife Service officially estimates there are just 30-40 bears in the Cabinet-Yaak Recovery area. And in the three years leading up to the 2002 EIS, there were 13 human-caused grizzly bear mortalities.

Many bear mortalities are directly linked to the proximity of roads. For that reason alone, Garrity contends, the forest-plan amendments need to be more restrictive about road densities.

The Kootenai forest's environmental coordinator couldn't be reached for comment Friday.

But the ruling clearly pleased Rob Carlin, the Flathead National Forest's lead planner, who was formerly the leader of the team that developed the Kootenai's road management amendments.

"It really is quite a success for the Kootenai, and not just the Kootenai, but other forests that are wrestling with decisions related to grizzly bear management that are being litigated," Carlin said.

The Flathead forest is facing several lawsuits pertaining to similar issues that are also in Molloy's court.

"From a Flathead National Forest perspective, this ruling gives us confidence in the litigation that is currently before Judge Molloy," he said.

The Kootenai's approach to road management for grizzly bear habitat security was considerably different than the Flathead's, Carlin noted.

Instead of using a blanket standard for each bear-management unit, the Kootenai's approach involved "customized" standards to account for varying characteristics of each unit.

Molloy ruled that there was nothing arbitrary and capricious about the Kootenai's approach.

"There are BMUs that consist of wilderness areas, BMUs that abut towns or highly used recreational areas, and BMUs with highways and railroad tracks," he wrote.

The varying circumstances for each area, he added, "was the reason the Forest Service chose to design the amendments the way they did."

The ruling shoots down several other claims made by the plaintiffs:

. It finds that the government did make use of the "best available science;"

. It refutes the argument that the Forest Service did not consider an alternative that would have imposed more restrictive road standards. The government needed to "consider reasonable alternatives, not every conceivable alternative."

. It rejects a claim that the amendments failed to provide "linkage zones" between separated areas of bear habitat. Although linkage zones are important, the judge wrote, "this project was not designed to accomplish every task important to recovery."

Instead, the intent was limited to providing "a set of motorized access and security guidelines."

Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com.