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Roads lawsuit brings split decision

by CHRIS PETERSON
Editor | March 20, 2024 2:00 AM

U.S. Magistrate Judge Kathleen DeSoto March 12 recommended that two local environmental groups partially prevail in their claims against the Forest Service and the U.S. Fish and Wildlife Service over road management on the Flathead National Forest.

The recommendations, if they hold, could drastically alter the way the Forest Service manages closed roads in the future.

In 2018 the Flathead National Forest issued a new Forest Plan. Under that plan, in consultation with the U.S. Fish and Wildlife Service, the Forest Service crafted a road management plan that would allow it to close roads by simply putting up barriers or other closures in the first 50 to 300 feet of the road.

The idea being that the closures were enough to offer security to grizzly bears and protections to bull trout, both of which are listed as threatened under the Endangered Species Act.

The new rules for roads set aside the previous rules for closing roads under the previous 1986 Forest Plan. Under Amendment 19 of that plan, roads couldn’t simply be closed to meet road density requirements for bears and fish; they had to be “decommissioned” which meant taking out the culverts and to a certain extent, the roadbed itself.

The Forest Service argued that the less destructive methods under the 2018 were good enough for bears and fish; after all, grizzly bear populations in the Flathead were growing, not contracting. As such, it started crafting new projects that included new roads or reopened old roads after years of closing more than 700 miles of roads over the years under Amendment 19.

But two environmental groups, the Swan View Coalition and Friends of the Wild Swan both disagreed with that assertion and brought suit against the Forest Service.

The case has been winding its way through the courts for the past few years now. The environmental groups initially prevailed, but the Fish and Wildlife Service in 2022 issued a new biological opinion that aligned largely with the 2018 plan which led to the Forest Service winning on an appeal to the Ninth Circuit. The court ruled the environmental groups case was now moot, since the Fish and Wildlife Service had changed its biological opinion.

But the groups then re-filed their claims in 2022, claiming even the 2022 changes the agency made were inadequate and violated the Endangered Species Act.

DeSoto agreed, in part, with the environmental groups and also agreed in part with the Forest Service.

“Plaintiffs are entitled to summary judgment on their ESA claims regarding bull trout and bull trout critical habitat insofar as Fish and Wildfire Service failed to consider the effects of allowing culverts to remain on impassable roads,” DeSoto found.

She also found the Fish and Wildlife Service did not adequately address “ineffective” road closures in its analysis on the impacts of grizzly bears.

“Plaintiffs are entitled to summary judgment on their ESA claims regarding grizzly bears insofar as FWS failed to consider the impact of ineffective road closures on the 2011 baseline and grizzly bear populations,” she wrote.

The environmental groups claimed that road closures, like gates, were ineffective because people drove around them.

She did, however, find in favor the Fish and Wildlife Service on its analysis of unused roads and the impacts of sedimentation of closed roads on bull trout streams.

“FWS properly addressed the impacts of unused roads and increased roadbuilding on grizzly bears,” she found. “Defendants are (also) entitled to summary judgment on plaintiffs’ ESA claims insofar as FWS properly addressed sedimentation impacts of unused roads, unauthorized motorized use, and increased roadbuilding on bull trout and bull trout critical habitat.”

That aside, DeSoto recommended that the Fish and Wildlife Service once again go back to the drawing board on its road management opinion for the Flathead.

“It is further recommended that the provisions of the revised biological opinion that violated the ESA remanded without vacatur to the agencies for further consideration consistent with this opinion,” she found.

“Without vacatur” means that the entire document doesn’t have to be re-examined, just the parts that speak to road management.

The Forest Service and the Fish and Wildlife Service both declined to comment on the suit, though the Forest Service said it does plan to raise objections to the findings. After objections are raised, District Court Judge Dana Christensen will examine the case. He can uphold DeSoto’s findings and recommendations, or come to his own conclusions. Once complete, he will issue a ruling and opinion.

DeSoto also allowed several projects on the Flathead National Forest that have already been planned to move forward, including the Mid Swan Project in the Swan Valley, the Dry Riverside project along the east side of the Hungry Horse Reservoir and the Rumbling Owl Project, which is also in the Swan.

“The government admits that illegal use of closed roads is a chronic problem, but has twice failed to account for those additional impacts to threatened grizzly bears,” Keith Hammer, Chair of Swan View Coalition said. “We are pleased that the court has again sent the agencies back to the drawing board.”