Federal judge halts Flathead forest project because it fails to protect grizzly bears • Daily Montanan

Federal Judge Dana Christensen blocked the Flathead National Forest from implementing its forest plan for the 2.4 million acres because the U.S. Forest Service ignored the impact of roads on endangered grizzly bear and bull trout populations.

In his ruling, which largely upheld the original decision by Magistrate Judge Kathleen DeSoto, he said the Forest Service continues to ignore the impacts of road closures and unauthorized use of motor vehicles on roads frequented by grizzly bears and bull trout.

The case is similar to many others that have recently involved grizzly bears and roads. The U.S. Forest Service, which has a policy of not commenting on pending litigation, continues to overlook or ignore roads that once existed but are no longer in use, according to the U.S. district court order.

Because the U.S. Forest Service has not permanently closed the roads, rendering them unnatural or impassable, the judge said the roads are still being used, albeit illegally. While the U.S. Forest Service does not include the closed roads in its final forest plan, it estimates that the road closures are about 90 percent effective, according to court documents.

Although Christensen and other federal judges have ruled that the U.S. Forest Service cannot be held liable every time someone illegally uses a closed road on federal forest land, the agency is nonetheless required to use the information accurately to determine its future plans, including how it will manage already-struggling species like grizzly bears and bull trout. And Christensen said the Forest Service cannot ignore information it knows but believes is against it.

Christensen did not evacuate or stop the entire plan, as the groups that opposed it, the Swan View Coalition and Friends of the Swan, had requested, but he did prevent the plan from going into effect until the Forest Service corrected it.

The Flathead National Forest is home to five federally designated threatened species: bull trout, grizzly bear, Canada lynx, scalded catchfly, and snow stonefly. There is one proposed species, the whitebark pine, and one candidate species, the monarch butterfly.

The court found that the U.S. Forest Service must provide a detailed analysis of motorized vehicle use, including some “unauthorized” vehicles. The court said the U.S. Forest Service cannot ignore the information it has that demonstrates the problem, even if it believes the issue is difficult to control. That means the Forest Service will likely have to either address unauthorized motorized use in the plan or explain in detail how such use will not negatively impact endangered species.

Christensen and DeSoto both criticized the Forest Service for excluding road density issues because it called the grizzly bear population “robust” and said the challenges of tracking illegal use are “spatially disparate and temporary.”

“None of these ‘factors’ adequately support the agency’s decision,” Christensen wrote in his order. “This court has categorically rejected the ‘standard’ assertion that unauthorized motorized access is unpredictable and, therefore, its effects on grizzly bears are indeterminable. Yet the Fish and Wildlife Services relies on this same flawed premise to reach its conclusion in the revised Biological Opinion. The court also categorically rejected the argument that unauthorized motorized vehicle use is ‘spatially disparate and temporary,’ concluding that such use and its effects are in fact permanent. Once again, the FWS repeats this error in the revised Biological Opinion.”

Christensen also said the Forest Service and Fish and Wildlife Service’s argument that they can rule out unauthorized motor vehicle use in forests because the grizzly bear population is growing could undermine the very protections that have allowed their recovery.

He compared the Forest Service’s plan to throwing away an umbrella during a rainstorm just because a person didn’t get wet.

“We are pleased to see the courts confirm once again 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, one of the groups that filed the lawsuit. “The key is to stop building more logging roads. A truly sustainable logging program would not require ever more roads through ever more pristine forests.”

flathead-2024-06-28_commander