Flathead forest plan ruling favors environmental groups

A federal judge ruled in favor of environmental groups Thursday in a lawsuit that challenged the way roads are managed in the Flathead National Forest.

U.S. District Court Judge Donald Molloy in a 64-page ruling said the U.S. Forest Service and the U.S. Fish and Wildlife Service were “arbitrary and capricious” and violated the Endangered Species Act when they devised the forest plan in 2018, adopting a plan that “would provide the most opportunity for wheeled motorized use.”

The problem with the plan, Molloy found, was that it contradicted years of research on grizzly bears, roads and bear deaths, which basically states the more roads there are, the more likelihood a grizzly bear will come into conflict with a person and will end up dead.

In the 2018 plan, the Forest Service said it would maintain its open road densities based on 2011 levels — the year biologists had determined that grizzly bears in the region were considered biologically recovered.

The 2018 forest plan abandoned a previous road management plan called Amendment 19, which under the old 1986 plan, required that closed roads be “decommissioned” to the point where they were no longer usable, not even as trails.

The 2018 plan, by contrast, used a different method to close roads, which it calls “impassable.”

Impassable roads are “not counted in the total motorized route density as long as the road (generally the first 50 to 300 feet) has been treated to make it inaccessible to wheeled motorized vehicles during the non denning (grizzly bear) season,” the 2018 plan states.

But that tactic allows most of the road to remain and conceivably, reopened at a later date.

Molloy took umbrage to that.

“The (2018) plan is arbitrary and capricious to the extent it did not consider the impacts of its departure from Amendment 19’s road density and reclamation standards, did not consider the impact on the entire grizzly population, did not adequately explain the adoption of the 2011 access conditions and adopted a flawed surrogate in its take statement concerning grizzly bears,” Molloy found.

He agreed with the lead plaintiffs, The Swan View Coalition and the WildEarth Guardians that the barriers weren’t all that effective — people would drive around them.

“The Fish and Wildlife Service’s failure to consider the effect of ineffective road closures was arbitrary and capricious,” Molloy said.

He also found the Forest Service’s plan to protect bull trout flawed as well.

BOTH BULL trout and grizzly bears are listed as threatened under the Endangered Species Act. Grizzly bears, however, are considered biologically recovered by many biologists. There’s more than 1,000 grizzlies in the Northern Continental Divide Ecosystem, an 8 million-acre swath of land which spans along the divide from Canada to Ovando.

The plaintiffs had asked the court to throw out the entire 2018 plan, but Molloy stopped short of that, noting the economic impacts.

“Without the revised plan, eight projects identified by Weyerhaeuser Montana could not go forward, which would detrimentally impact its business,” he said.

Instead, he required that the Flathead National Forest must look at each project individually for on roads and impacts to grizzlies and bull trout — including several new projects that call for about 70 miles of new roads.

One of those projects is the Frozen Moose project up the North Fork.

He also found that the provisions in a 2017 U.S. Fish and Wildlife Service biological opinion that allowed for the new road standards was in violation of the ESA and ordered the agencies to consider new standards consistent with the opinion.

THE ENVIRONMENTAL groups were pleased with the ruling.

This isn’t rocket science,” said Swan View Coalition Chair Keith Hammer. “The new forest plan attempted to allow unlimited miles of roads to be built in grizzly bear and bull trout habitat by simply not counting them as roads. The prior forest plan required that roads be fully reclaimed and their culverts removed to protect both species before being dismissed as roads.”

Timothy Preso, managing attorney of Earthjustice’s Northern Rockies regional office, asserted that "road construction in sensitive habitats is one of the greatest threats to grizzly bears and bull trout. This ruling recognized our key point that leaving a network of unreclaimed roads in the Flathead forest will drive away grizzlies and dump sediment into bull trout habitat.”

The Forest Service did not immediately respond to a request for comment. The Montana Logging Association, an intervenor defendant in the case, did not immediately respond as well.