Environmental groups plan suit over culverts

A coalition of environmental groups may sue the U.S. Forest Service for failing to properly protect bull trout in Flathead National Forest.

Last week, the Swan View Coalition, WildEarth Guardians and Friends of the Wild Swan sent a 60-day Notice of Intent to sue to the heads of the Forest Service and other federal agencies, claiming “the Forest Service has violated and is violating the ESA” (Endangered Species Act).

It’s doing so, they claim, by neglecting a mundane piece of infrastructure: culverts, the metal-walled tunnels that carry streams beneath roads. When culverts get clogged with debris, the pressure of heavy rain and snowmelt can cause them to blow out.

That puts “tons and tons of roadfill and sediment into these streams that’s not supposed to go there,” said Keith Hammer, chair of the Swan View Coalition. Bull trout, he said, are “incredibly sensitive to sediment. You put that dirt down the road into the creek...it smothers the eggs, they will not hatch.”

To avoid that outcome, the groups who sent the notice want to ensure that the Forest Service inspects the thousands of culverts beneath Flathead’s roads.

Per the Endangered Species Act, the Forest Service’s road construction and alteration requires the U.S. Fish and Wildlife Service to issue biological opinions detailing the project’s impact on bull trout.

The notice claims that seven such opinions, issued for various projects between 2002 and 2016, assumed that inspections would be conducted annually or biannually. But Swan View, WildEarth and Friends of the Wild Swan cite internal Forest Service communications to argue that it had failed to inspect on this schedule.

“This rule that we’re challenging [them on] now says, ‘if you’re gonna leave the culverts, you’re gonna inspect them every year,’” Hammer said. “What they’ve been doing in practice, however, as far as we can tell, is using their discretion” in deciding which culverts to inspect.

In addition, the would-be plaintiffs note a Nov. 9, 2016, letter from Flathead National Forest Supervisor Chip Weber to the Fish and Wildlife Service’s Jodie Bush, asking to amend the biological opinions’ terms and conditions to adopt a six-year monitoring schedule.

However, the notice continues, it never re-entered consultation with the Fish and Wildlife Service on this matter.

For these and other reasons, the conservationists claim that “the Forest Service has violated and remains in ongoing violation of the ESA.”

Rob Carlin, forest staff officer at Flathead National Forest, declined to comment on the notice’s specific issues. In an emailed statement, he said that “we have been working with the U.S. Fish and Wildlife Service on our existing culvert monitoring protocols within Forest Plan Revision” – a process that will guide forest management for decades to come – “as well as for individual project level decisions.”

Hammer not only takes issue with these claims, but also with the Forest Service’s reluctance to discuss them. Carlin told the Inter Lake “we have been in frequent communication with Swan View Coalition Chairman Keith Hammer over a two-year period...with responses to numerous Freedom of Information Act requests and follow-up questions.”

But Hammer described multiple letters and emails that had gone unanswered in recent months.

“We’ve tried every other avenue to get them to discuss this with us...and they don’t, period.

“The only other thing we can do to put ‘em on notice.”

But if the two sides share anything in this dispute, it may be an aversion to litigating it.

Carlin said the Forest Service would prefer to settle the complaints during the 60-day, post-notice window required by law. “We will be looking quite closely at the notice of intent and preparing a response,” he said.

Likewise, Hammer voiced hope that a lawsuit would prove “unnecessary,” and that “the Flathead will live up to the promises that it’s made...and stick to inspecting these culverts annually.” He added that “at times...we’ve resolved the matter and not had to litigate.”

But if necessary, “we’re prepared to litigate if we need to.”

Conservationists may well find a lawsuit better than letting Flathead’s estimated 14,469 culverts go unchecked.

Hammer recalled seeing one Bunker Creek pipe, four feet wide, so clogged with logs and dirt that “you couldn’t get a volleyball shoved up there.”

He quickly notified nearby forestry crews, who cleared it. But two years later, he was still mindful of what it could have done to local trout.

With “a stream like that, you could move a lot of sediment over that road bed,” he added.

Reporter Patrick Reilly can be reached at preilly@dailyinterlake.com, or at 758-4407.