Endangered Species Act wielded in the courtroom

Keith Hammer is no stranger to litigation.  

President of the nonprofit Swan View Coalition, Hammer has repeatedly taken on the Forest Service and other governmental entities over the past 40 years. He's sued over timber projects and forest plans, logging roads and snowmobile trails, pesticide use and habitat impacts. 

In almost all of those cases, he's leaned on the Endangered Species Act. 

Established 50 years ago as a tool to help preserve the natural world amid humanity’s impact, it is often used in courtrooms to do just that.

“The Endangered Species Act is absolutely necessary to give the citizens a right to challenge these programs, otherwise the citizens really have no recourse to take on these state and federal agencies,” Hammer said. 

More recently, Hammer sued the Flathead National Forest in 2019 over its revised forest plan, challenging the way the agency was planning to manage roads. The revised plan, according to Hammer, abandoned road closure requirements that are credited with helping the recovery of grizzly bears and their habitat.   

“The Forest Service and Fish and Wildlife credit those road closures and road removal programs with helping to recover the grizzly bear population, and now simultaneously they're trying to delist the grizzly bear and remove those road protections,” Hammer said as he explained why his group resorted to litigation.   

In June of this year, a federal judge in Missoula issued an order recognizing that logging roads intensify negative pressures on grizzly bears and their habitats, agreeing with Hammer that the standard the Flathead Forest used was ineffective when approving new roads for timber projects.    

The suits aren’t quick, Hammer said, noting that one played out over half a decade.  

FOREST SERVICE projects are often halted or delayed due to long lawsuits, putting a pause on forest management or timber projects.  

That’s a point of frustration for many in the logging industry, according to Tim McEntire, the northwest regional representative for the Montana Logging Association.   

“The greatest threat to old growth and maturity is wildfire, disease and insects," he said. "The way to combat that is through management. We're in this whole system where we have to work together, to manage our forests healthily and also protect those [endangered] species."  

Specifically, McEntire pointed toward the Cottonwood Decision, a 2015 court ruling that many foresters often deal with when trying to complete forest projects. The decision requires the Forest Service to reanalyze the environmental effects of already completed forest plans across the West.  

“That’s where we see the majority of the problem. These projects are put out, consulted on, get the green light and then a litigator finds some minor thing to hold the project up,” McEntire said. “The Forest Service has done a good job of working through and doing management while protecting species of concern, but it’s a loophole that’s been found that continues to hold us up.”  

The most recent and largest scoping problem has come from the Knotty Pine project near Libby, McEntire said, where courts halted a project in the Kootenai National Forest because of its potential to harm grizzly bear habitat. The project was slated to begin early May of this year.  

In a similar case to Hammer’s, environmental groups said that the Forest Service downplayed how heavy machinery and new road construction affects the habitat. The case is concerned with the number of roads it would take to access the timber project and how to enforce closure of those roads.  

“The recent court decision stating that the Forest Service does not have a really solid plan on how to deal with road closures is probably the biggest ESA issue facing many of the Forests in Montana,” McEntire said. “Most of these projects being held up are in the [wildland urban interface] and are desperately needed, not only for timber jobs and the local economy, but also for wildfire prevention.” 

About 13% of forest projects receive legal challenges in the Northern Region, according to Cassie Wandersee, press officer with the Forest Service’s Northern Region.    

“These are generally challenges to the project planning process itself," she said. "Analysis of impacts to ESA listed species such as grizzly bears and Canada lynx are other common areas of challenges."   

In June of this year, Republican Reps. Matt Rosendale and Ryan Zinke and Democratic Sen. Jon Tester partnered with Republican Sen. Steve Daines on a bill to get rid of the Cottonwood Decision and change when consultation is required regarding a resource management plan or land use plan.   

It’s a bipartisan push, McEntire said, with support from state and federal agencies, but it has yet to gain traction.  

POLITICALLY — BETWEEN states, environmental groups and federal agencies — the Endangered Species Act is challenged more than ever before, according to Lizzy Pennock, a carnivore coexistence attorney with WildEarth Guardians.

For example, delisting the grizzly bear in Montana has been tumultuous, where state agencies say the population is recovered and environmental groups argue that protections should continue.   

Grizzly bears are currently listed as a threatened species under the Endangered Species Act. When they are removed from the federal list, the bears will be under state control, where in Montana hunting and management regulations will be enforced by Montana Fish, Wildlife and Parks.     

“Clearly, without [the Endangered Species Act], Montana’s mascot, the animal of our university in Missoula, the animal that represents the wildness of Montana… we may not have them at all,” Pennock said. 

The state agency disagrees.   

“The recovery of grizzly bears in Montana is an amazing conservation success story for Montana,” said Montana Fish, Wildlife and Parks Director Dustin Temple in a recent September press release announcing the state’s finalized statewide grizzly bear management plan. The plan was completed in anticipation of the bear being delisted soon. 

“This success story also proves again that [Fish, Wildlife and Parks] is committed to managing for healthy wildlife populations across our diverse landscape," he continued. 

The grizzly has yet to be federally delisted.     

One solution to navigating the tension, according to Martin Nie, a professor of natural resource policy at the University of Montana, would be to get federal and state agencies to “embrace their obligations as co-trustees of wildlife” to recover species and then keep that species recovered, putting science ahead of policy.  

That can be achieved through giving states and Tribes more federal funding and ensuring state governments strengthen wildlife codes and regulations, Nie suggested.   

“That way, the gulf sometimes separating federal ESA protection and state management will not be so deep and stark,” Nie said. 

The Endangered Species Act's fundamental purpose is to protect the ecosystems that listed species depend on, Nie explained, and some of the earliest recovery cases were simple compared to the choices that must be made today.     

Rare are cases that are simply resolved, he said, thanks to population growth, habitat loss, invasive species, climate change and other systemic threats. The notion that a species is either imperiled or recovered is challenging to sort through.  

Fifty years since its creation, the pressure and disputes surrounding the Endangered Species Act are intertwined with the act’s purpose. Animals often remain a surrogate for deeper political issues, such as determining what makes a “sustainable level” and what constitutes recovery in a certain geographical area.   

“It’s obviously a lot deeper, and [some animals] bring to the surface more consequential questions like how wildlife decisions get made and by whom,” Nie said.