Federal court strikes down Flathead National Forest plan

A federal court magistrate has found that the Flathead National Forest has failed to consider the impacts of new road-building projects on grizzly bears and bull trout, saying the United States Forest Service is ignoring science in order to arrive at its approval for the project which has been contested since 2018.

Magistrate Kathleen DeSoto said that, like a previous court decision, the Flathead National Forest ignored roads that had been “decommissioned” but still exist and allow for motorized vehicle travel, which is technically illegal, but the USFS acknowledges happens. In the Forest Service’s 2009 plan, officials called for removing many of those roads, but opted to “decommission” them by blocking them, which severely curbed, but didn’t eliminate their use.

Swan View Coalition and Friends of the Wild Swan sued the Forest Service, saying that it couldn’t ignore the roads in its calculations and plans, which said that in 2009 the federal agency agreed that any new project could not add to motorized vehicle use in the forest. DeSoto found that even though those roads were decommissioned, they were still usable, and should have been considered and addressed in the plans. Doing that, the citizens’ groups argued, would then have rendered the Forest Service’s plan in violation of the Endangered Species Act.

In 1995, the Forest Service agreed that it would “reclaim” any road motorized route that was no longer needed, meaning it would be “treated in such a manner so as to no longer function as a road or trail.”

However, the Forest Service appears to have “decommissioned” the roads, meaning that the first 50 to 300 feet were blocked or made impassable, but the road itself was not removed.

The purpose of the 1995 plan, called “Amendment 19,” was to disincentivize new road construction in grizzly bear habitat.

“Science indicates that even where ‘permanent barriers’ are used, road closures may be ineffective and use may occur or continue,” the judge noted. “What is clear from the caselaw is the general rule that road density calculations must include a material quantification of unauthorized motorized use.”

DeSoto pointed out that the best available science indicates that grizzly bears — more than black bears — avoid roads, whether they’re used often or even infrequently. The Forest Service ignored this, the magistrate said. Moreover, simply closing part of the road is not the same as removing it, DeSoto said.

DeSoto’s ruling, released Tuesday, also said that the Forest Service failed to consider the impact of road culverts on sediment build-up in streams and rivers where the imperiled bull trout live. Bull trout, along with grizzly bears, are protected species under the federal Endangered Species Act.

“Given the connection between bull trout, habitat conservation, and culvert removal and management, the scientific evidence did not support the revised plan’s shift away from mandatory culvert removal,” DeSoto wrote. “FWS’s analysis therefore fails to consider an important part of the problem and is arbitrary and capricious.”

DeSoto stopped short of scrapping the entire plan, instead sending the plan back to Forest Service and the United States Fish and Wildlife Service for reconsideration and findings consistent with her ruling.

The Forest Service or the U.S. Fish and Wildlife Service has 14 days to file written objections to DeSoto’s order, or the findings will become permanent. If either party objects, the case will be reviewed by a federal judge.

The groups cheered on the ruling, the second time it has gone to federal court to challenge the Forest Service’s plan.

“The government admits that illegal use of closed roads is a chronic problem, but has twice failed to account for those additional impacts to threatened grizzly bears,” said Keith Hammer, Chairman of Swan View Coalition. “We are pleased that the court has again sent the agencies back to the drawing board.”

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, a nonprofit newsroom.