USFWS must consider road effects on grizzly bears and bull trout

Laura Lundquist

(Martin Kidston) A federal judge found that the Flathead National Forest broke the law in several other ways by refusing to consider the effect of certain roads on grizzly bears and bull trout.

On Friday, Missoula District Judge Dana Christensen upheld most of Missoula District Judge Kathleen DeSoto’s ruling on a challenge to how the 2018 Flathead Forest Management Plan handled logging roads.

The U.S. Forest Service and the Fish and Wildlife Service had objected to three aspects of DeSoto’s March 12 decision. So Christensen reviewed the decision to address the objections and found that none were valid.

“Defendants object and argue that the Court should grant summary judgment in favor of Defendants on all claims and, therefore, the Forest Service’s reliance on the revised biological opinion also did not violate the Forest Service Act. endangered species. Because the Court has found that Defendants violated the ESA, it overrides Defendants’ objection,” Christensen wrote in his 49-page decision.

The Forest Service failed to prove it did not violate the Endangered Species Act by relying on the revised biological opinion issued by the Fish and Wildlife Service in 2022 after Judge of the Federal District Donald Molloy considered the initial 2017 opinion on the new forest plan to be insufficient and ordered a new opinion. But the justices found two problems with the new opinion.

Grizzly bears avoid all roads and are more negatively affected as road density increases in an area because the risk of human interaction is greater. Even closed roads have an effect. Scientists have therefore set numerical limits for road density in grizzly bear habitat, and the Flathead Forest includes more than 2 million acres of prime grizzly bear conservation habitat.

In its new forest plan, the Flathead Forest has changed the way it manages closed and decommissioned roads on paper. Instead of completely rehabilitating an unused road before removing it from road density calculations, the 2018 Forest Plan said it was enough to simply make a road “impassable,” meaning the road is blocked to vehicles motorized at its entrance but it is still there. So this meant that the Flathead Forest could claim that the density of the roads was lower than what actually existed on the ground.

It also meant the Forest Service was rehabilitating fewer roads, just making them impassable. That meant it didn’t remove old culverts, which could collapse and have a detrimental effect on bull trout.

The plaintiffs – Swan View Coalition and Friends of the Wild Swan – had found numerous examples of motor vehicles bypassing road barriers intended to make roads impassable. The Forest Service itself has also documented illegal use, varying from 9 to 57 percent of roads, depending on the forest.

Christensen said DeSoto’s decision was correct when it found that the Fish and Wildlife Service failed to consider in its revised biological opinion the effects that leaving impassable roads in the forest could have on bull trout and grizzly bears. In particular, the agency failed to consider the effects of illegal use of impassable roads on grizzly bears because it claimed — as it has in at least two other cases — that the effect had not been studied and therefore there was no way to know. Christensen said the agency should draw on its expertise.

“This Court has categorically rejected the “boilerplate” assertion that unauthorized motorized access is unpredictable and, therefore, its effects on grizzly bears are unknowable. Yet the FWS relies on this same flawed premise to reach its conclusion in the revised biological opinion. The Court also flatly rejected the argument that unauthorized motorized use is “spatially disparate and temporary,” concluding that such use and its effects are in fact permanent,” Christensen wrote.

In the one case where Christensen overturned the DeSoto decision, he agreed with the plaintiffs’ objection that the Fish and Wildlife Service had failed to provide a valid reason for not considering the effect of impassable roads on grizzly bears. Saying that the bear population is increasing is not enough because it does not take into account the effect of roads, while several scientific studies document a negative effect.

Both DeSoto and Christensen rejected the plaintiffs’ request to halt logging plans in the Flathead Forest while the Fish and Wildlife Service rewrites its biological opinion, which could require the Flathead Forest to amend its forest plan. But the plaintiffs, represented by Earthjustice, were satisfied with Christensen’s findings.

“We are pleased to see the courts once again confirm that as long as roads exist on the landscape, whether open or closed to motorized traffic, they pose a threat to grizzly bears and bull trout.” , said Keith Hammer, president of the Swan View Coalition. “The key is to stop building more logging roads. A truly sustainable logging program would not require ever more roads in ever more pristine forests. »

Contact reporter Laura Lundquist at [email protected].