Judge tosses case over forest road issue

A federal judge has shot down a lawsuit challenging road management actions associated with timber salvage projects on the Flathead National Forest.

U.S. District Judge Donald Molloy issued a ruling Monday, striking down all claims made in the lawsuit filed by the Swan View Coalition and Friends of the Wild Swan.

Prevailing were the Flathead National Forest, the U.S. Fish and Wildlife Service and a series of Western Montana loggers and lumber mills that intervened in the case.

°°It°¯s a big decision,°± said Joe Krueger, the Flathead Forest°¯s environmental litigation coordinator. °°It proves that what the forest has been doing is lawful, it validates that we have followed all the laws and regulations.°±

The two environmental groups did not challenge timber harvesting involved with the West Side Reservoir and Robert-Wedge post-fire projects; they did, however, contend the projects violated road density standards for grizzly bear habitat security and the Endangered Species Act.

The salvage projects included °°site-specific°± amendments to the Flathead°¯s long-term forest plan, allowing for deviations from numeric road density standards that were adopted in 1995.

A 31,600-acre area was burned by fires west of Hungry Horse Reservoir in 2003, and within that area the forest proposed closing and reclaiming roads to meet the standards in three grizzly bear management subunits, but allowing for deviations in three other subunits.

The Robert and Wedge fires burned 34,649 acres in the North Fork Flathead drainage in 2003. In that area, the forest proposed deviations from the standards in two subunits.

Forest officials maintained that the deviations were necessary for a variety of reasons, including the need to maintain access to popular recreation sites and private lands. The U.S. Fish and Wildlife Service reviewed the projects and determined that the deviations would not cause grizzly bear mortalities.

Molloy upheld those decisions, finding that a strict application of the so-called °°Amendment 19°± road density standards is not required.

°°Amendment 19 is not an action or a project; it is a part of the forest plan, which is a programmatic document that does not authorize any specific projects and does not obligate the Forest Service to undertake specific projects,°± the ruling states.

Molloy goes on to stress that only because the projects proceeded, roads were closed or reclaimed to meet or nearly meet the standards.

°°The improvements to grizzly bear habitat that will result from the scheduled implementation of the challenged projects are not illusory °ª the projects will create more habitat for grizzlies in the affected subunits than existed prior to implementation,°± the ruling states.

°°The plaintiffs advocate an aspirational conception of the existing situation that would lead to a perverse outcome in which the service must reject a project that improves conditions because it does not improve them enough. Such an approach undermines the utility of the evaluation of the effects of an action and is not required by law.°±

According to Krueger, °°I thought that, in a nutshell, captured the essence of the case.°±

Molloy said the 1995 standards are not the only measure the forest or the U.S. Fish and Wildlife Service must consider in project evaluations.

Krueger said the ruling is significant for future management decisions because it acknowledges that the federal agencies can and should consider other factors, particularly new science related to the status of grizzly bears on the forest.

The projects were approved prior to a U.S. Geological Survey population study that has found there were a minimum of 545 grizzly bears in the Northern Continental Divide Ecosystem in 2004 °ª substantially more than an estimate of 304 bears that the federal wildlife service considered when evaluating the projects.

°°That°¯s part of the new dynamic in biological information,°± Krueger said, adding that the forest can consider future site-specific amendments to road density standards °°where it°¯s appropriate°± and °°where we can justify the need.°±

Keith Hammer, chairman of the Swan View Coalition, could not be reached for comment.

The coalition is the lead plaintiff in another case challenging a previous site-specific amendment related to forest road standards in an area burned by the 2001 Moose Fire.

Molloy ruled against the coalition in that case, which has since been appealed to the 9th Circuit Court of Appeals.