Ninth Circuit rules against environmental groups, in part

The Ninth Circuit Court of Appeals last month upheld the Flathead National Forest’s 2018 Forest plan as it pertains to grizzly bears and bull trout.

The Swan View Coalition and Friends of the Wild Swan had successfully argued to the lower district court that the 2018 plan was ignoring previous road management decisions on the Flathead that were established under what was known as Amendment 19.

In 2021 U.S. District Court Judge Donald Molloy ruled the Forest Service and U.S. Fish and Wildlife Service was “arbitrary and capricious” and violated the Endangered Species Act when it devised its Forest Plan in 2018; adopting a plan that “would provide the most opportunity for wheeled motorized use.”

In the 2018 plan, the Forest Service said it would maintain its open road densities based on 2011 levels — the year biologists had determined that grizzly bears in the region were considered biologically recovered.

Open roads, and even some that are closed, also have a negative impact on bull trout, the plaintiffs maintained.

But the higher court said their claims were moot, because in 2022, the Fish and Wildlife Service wrote another biological opinion on the Forest Plan.

“Because Swan View’s challenge to the 2017 biological opinion became moot due to the FWS’s issuance of a superseding biological opinion, we vacate the portion of the district court’s summary judgment rulings addressing Swan View’s ESA claims and remand with instructions for the district court to dismiss the ESA claims as moot,” the Ninth Circuit panel ruled.

The higher court also found that the Forest Service in the 2018 plan was doing enough to monitor roads and their impacts.

“We reject Swan View’s argument that the Forest Service violated National Environmental Policy Act by failing to consider or disclose the environmental impact of its revised road management framework on grizzly bears or bull trout. The Final Environmental Impact Statement fully disclosed the Forest Service’s departure from the requirements under Amendment 19 (including the potential negative impacts to listed species) and considered alternatives to the departure. The FEIS addressed and rejected plaintiffs’ comments that the change would harm grizzly bear populations and habitat. Among other reasons, the FEIS offered an adequate explanation of its decision to implement the guideline, and also included a plan to monitor culverts in order to address the impacts of sedimentation on bull trout and the bull trout habitat. Therefore, the Forest Service did not ignore any adverse impact of the FEIS (on grizzly bears and bull trout) and took “the requisite ‘hard look’ at the environmental consequences of its actions,” the higher court found.

Still, there is a bit of irony in all of this. For example, when it comes to culverts and their impacts to bull trout, the Fish and Wildlife Service concedes it could be bad for fish in its 2022 biological opinion. Culverts over time can plug. They then blow out in high water, sending sediments into nearby trout streams.

“In summary, the Service concludes that the FNF’s Revised Forest Plan direction regarding road decommissioning has the potential to adversely affect bull trout and bull trout critical habitat. This potential exists because the USFS has removed the requirement to remove culverts when decommissioning roads. While this potential exists, it is not duration, or extent of any adverse effects because the proposed action (Revised Forest Plan) is not proposing an explicit project, rather it provides direction that the Flathead National Forest will use to plan future actions,” the opinion states.

But when it comes to grizzlies, the Fish and Wildlife Service found the new Forest Plan, even without the previous Amendment 19 restrictions, was amenable to grizzlies.

“It is our opinion that the proposed action would not appreciably reduce the likelihood of both the survival and recovery of the Northern Continental Divide Ecosystem grizzly bears and, therefore, will not appreciably reduce the likelihood of both survival and recovery of the coterminous United States grizzly bear population,” the biological opinion states.

The 2022 biological opinion also addresses Amendment 19, which called for removing hundreds of miles of roads from the Flathead National Forest — a goal that was never actually met.

“The Service concludes the new direction will continue to support a healthy NCDE population, despite being a departure from objectives contained in the previous plan. This conclusion is based on the best available scientific information that indicates the NCDE population has continued to grow and expand even though Amendment 19 objectives were not fully attained on-the-ground,” the opinion states.

But Keith Hammer, chair of the Swan View Coalition, said the higher court decision also allows another suit, filed last year, to move forward.

“The Ninth Circuit decision actually clears the path for us to pursue our Endangered Species Act claims against Fish and Wildlife Service’s revised Biological Opinion back in U.S. District Court, which we are already doing in our lawsuit filed last May,” he said. “The government can no longer claim we should be arguing about the revised biological opinion at the Ninth Circuit instead or that Judge Donald Molloy’s ruling on the initial biological opinion precludes us from litigating the revised biological opinion.”