Friday, July 19, 2024

Federal judge stops Flathead forest plan because it doesn’t protect grizzly bears

by Darrell Ehrlick Daily Montanan
| July 5, 2024 7:00 AM

Federal Judge Dana Christensen has stopped 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 the endangered grizzly bear and bull trout populations.

In his decision, which mostly upheld federal magistrate Kathleen DeSoto’s initial ruling, he said that the Forest Service continues to ignore the impacts of closed roads and unauthorized motor vehicle use on roads in grizzly bear and bull trout habit.

The case is similar to many which have centered on grizzly bears and roads recently. The U.S. Forest Service, which doesn’t comment on pending litigation as a matter of policy, continues to disregard or ignore roads that have existed, but are no longer used, according to the order from the U.S. District Court.

Because the U.S. Forest Service has not permanently closed them, returning them to a natural or impassable state, the roads are still used, the judge said, even if illegally. While the U.S. Forest Service doesn’t calculate the closed roads into its final forest plan, it does estimate that the road closures are around 90% effective, according to court documents.

While Christensen and other federal judges have ruled that the U.S. Forest Service cannot be held responsible for every time a person illegally uses a closed road on federal forest land, the agency is nonetheless responsible for accurately using the information as it determines its future plans, including how it will manage already struggling species like grizzly bear and bull trout. And Christensen said that the Forest Service can’t disregard information it knows but believe works against it.

Christensen did not vacate or stop the entire plan, as the groups challenging the plan, the Swan View Coalition and Friends of the Swan, had asked, but he did stop the plan from going into effect until the Forest Service corrects it.

Within the Flathead National Forest there are five federally designated threatened species — bull trout, grizzly bear, Canada lynx, scalding’s campion and meltwater lednian stonefly. There is one proposed species, white bark pine, and one candidate species, the monarch butterfly.

The court found the U.S. Forest Service must provide a detailed discussion of motorized vehicle use, including some which is “unauthorized.” The court said the U.S. Forest Service cannot ignore the information that it has which demonstrates the problem, even if it deems the matter hard to control. That means that the Forest Service will likely have to either address the problem of unauthorized motorized use in the plan, or detail how that use will not adversely affect endangered species.

Christensen and DeSoto both faulted the Forest Service for excluding the problems of road density because it characterized the grizzly population as “robust” and said that challenges of tracking illegal use is “spatially disparate and temporary.”

“Neither of these ‘factors’ provide adequate support for the agency’s determination,” Christensen wrote in his order. “This court has squarely rejected the ‘boilerplate’ assertion that unauthorized motorized access is unpredictable, and, therefore, its effects on grizzly bears are unknowable. Yet, the Fish and Wildlife Services relies on this same flawed premise in reaching its conclusion in the revised biological opinion. The court has also squarely rejected the argument that unauthorized motor use is ‘spatially disparate and temporary,’ concluding that such use, and its effects, are actually permanent. Again, FWS repeats this error in the revised biological opinion.”

Christensen also said that Forest Service and Fish and Wildlife Service’s argument that it could discount unauthorized motor vehicle use in forests because the grizzly bear population was growing, could be discounting the very protections that had allowed their recovery.

He likened the Forest Service’s plan to throwing away an umbrella in a rainstorm just because a person hasn’t gotten wet.

“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 use, they are a threat to grizzly bears and bull trout,” said Keith Hammer, chairman of the Swan View Coalition, one of the groups to bring the lawsuit. “They key is to quit building more logging roads. A truly sustainable logging program would not require ever more roads into ever more pristine forests.”