Federal judge quizzes lawyers in Flathead National Forest plan lawsuit

When should a road count as a road?

Grizzly bears avoid roads — even ones that aren’t used by motor vehicles. So the Flathead National Forest is supposed to limit road density on forest land for that threatened species – and bull trout benefit, too.

But a forest plan’s descriptions of roads — as “decommissioned” or “closed” or “impassable” — were one subject of arguments made this week in U.S. District Court in Missoula before Judge Kathleen DeSoto.

In the case, conservation groups allege the U.S. Forest Service and Fish and Wildlife Service are again failing to protect grizzly bears and bull trout by skirting a tried and true way to account for roads.

A lawyer for the Swan View Coalition and Friends of the Wild Swan said the agencies haven’t properly considered the displacement of bears or impacts to bull trout in a new forest plan with a new category of road.

Timothy Preso argued the category weakens the standards for taking a road out of the density equation.

According to the groups, the Fish and Wildlife Service shouldn’t have approved the Forest Service’s revised 2018 plan, as it did in a 2022 revised biological opinion.

“It makes a difference when an agency reduces its minimum protection requirements in terms of how things play out on the ground,” said Preso, an attorney with Earthjustice.

He argued the new plan hasn’t adequately explained why the change in how roads are classified won’t have a negative impact on bears — which steer clear of roads.

But lawyer Frederick Turner for the government said “there’s not as much daylight” between the two types of roads as alleged.

He also said regardless, grizzly bear counts in the area designated as a “bear recovery zone” are up by a lot, and the Forest Service uses many tools and grizzly bear experts to ensure a healthy population.

Additionally, he said the agency monitors culverts and employs many measures that protect all Flathead National Forest resources, including bull trout.

“The plaintiffs are required to show clear error of judgment, and we submit that they have not,” Turner said.

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In the past, the Forest Service could “reclaim” a road if it made sure it couldn’t be used again. For example, the agency would make sure fallen trees or boulders covered the first 200 feet of road at least, and it would remove culverts.

Then, it could omit that road from its cap in the Flathead National Forest calculation.

But a new forest plan offers up a new type of road — an “impassable” one. The Forest Service can decide a road is “impassable,” but it doesn’t have to take out all the culverts or ensure the road isn’t passable, besides blocking its first 50 feet.

At the hearing, Judge DeSoto quizzed the lawyers on their arguments, on how other court decisions fit into this case, and on the context of data and surveys presented.

DeSoto said people agree that illegal use of a road can’t be predicted precisely. However, she said one common thread among similar cases is that such use “nonetheless is a recurrent, permanent issue.”

So she wanted to know if and how it’s possible to count motorized use when the illegal use is unpredictable: “How do you quantify something that is by definition not quantifiable?”

Preso said under the old rules, the Forest Service was required to pull culverts, and those roads saw “almost zero trespass.” New data supposedly shows little has changed with how effective road closure strategies are, but Preso said it only covers a few months into the new plan.

In the meantime, the Forest Service is approving projects that include more road miles and ones “using the impassable framework.”

But he said the government didn’t look at the consequences of having a system that blocks only the first 50 to 300 feet of a road but leaves the rest intact.

What’s the effect on bears?

“Grizzly bears avoid roads. And they may not choose to use these habitats even long after road closures,” Preso said.

He said the Forest Service shouldn’t be allowed to build a lot of roads just because it’s blocking entrances to some other roads in order not to count them — or categorizing them as “impassable.”

He said a road that’s deemed “impassable” can still have a culvert, too, unlike one that’s been actively “decommissioned.” And he argued the government hasn’t justified “failing to require culvert removal” for an “impassable” road.

Culverts can hurt bull trout when they become clogged and push sediment into streams.

Preso said the Forest Service isn’t decommissioning many roads anymore, which would require culvert removal, but it is managing roads “under the impassable framework.”

He said the government has had two chances to “get this right” and still hasn’t done so, and the new plan is entering its fifth year: “As a result, harms to grizzly bear and bull trout continue to mount.”

As one solution, Preso said the court could order a remedy for projects that are still in the pipeline and haven’t been finalized yet.

Turner, though, said the plaintiffs need to show the government made a clear mistake, and they didn’t do so.

He said the big picture shows one result of its management — an increased grizzly bear population — is evidence the Forest Service is protecting the species.

In 1993, the goal for grizzly bear recovery in the Northern Continental Divide Ecosystem was 391, and by 2017, the population was 1,029, or nearly three times the goal, he said.

In questions, however, the judge wanted to know the reason for the change in standard for roads in the revised forest plan because the “impassable” theory would have an impact on road density in the forest.

Turner said the main obligation of the Fish and Wildlife Service is to evaluate whether a plan is likely to jeopardize the grizzly bear or bull trout habitat — not to compare plans.

He also said the Forest Service has taken many other actions to help the grizzly bear population, and their numbers and range are growing. He said the main concern is vehicles on the road, and the Forest Service is making roads inaccessible.

The judge said scientific literature shows unused roads affect bears too, but she agreed the government didn’t need to compare the plans. At the same time, she said, the government has an obligation to explain why the road changes will or won’t affect the baseline for road density in the forest.

“And I don’t know that the Forest Service has done that,” DeSoto said.

She said one issue for the court is whether it’s sufficient to say illegal use is disparate and sporadic, so the government doesn’t need to account for it when it comes to road density.

Turner, though, said the Forest Service and Fish and Wildlife Service aren’t avoiding the issue. Rather, he said they took that use into account in the 2011 baseline of habitat.

“It is part of the condition on the ground that leads to the number of bears,” Turner said.

The judge also wanted to know if the government was just paying “lip service” to culvert removals — required for decommissioned roads — if it wasn’t actually going to decommission roads.

Turner agreed culvert removal isn’t required for “impassable” roads, but he said the forest service plan needs to be looked at as a whole, and decommissioning is part of it going forward. He also addressed a request from the judge to respond to the idea the court could stop projects in the pipeline as a remedy in the case.

Turner said all the projects work together, and taking out discrete pieces complicates things. He also said the larger plan for the forest is rooted in grizzly bear conservation strategies developed by grizzly bear experts.

“I think that disrupting any Forest Service project is problematic,” he said.