Court ruling will stay after Forest Service drops appeal of lawsuit over road management

The Forest Service recently dropped an appeal to the Ninth Circuit Court in a case that has been in the federal courts for years over road management on the Flathead National Forest.

The move allows a lower court ruling to stand.

A federal judge late in June 2024 ordered the U.S. Fish and Wildlife Service and the Forest Service to fix portions of road regulations that are in violation of the Endangered Species Act when it comes to bull trout and grizzly bears.

In a case that’s been winding through the courts for years now, the Swan View Coalition and Friends of the Wild Swan contend that the Forest Service and Fish and Wildlife Service implemented a new way of closing roads and determining road standards that would be detrimental to both species in its 2018 Forest Plan.

The old 1986 plan used a standard called Amendment 19 that limited the open road density on the Flathead Forest in grizzly bear and bull trout habitat. It resulted in more than 700 miles of roads being “decommissioned” meaning the culverts and road beds were usually taken out and they were largely restored to a natural condition.

Under Amendment 19, grizzly bear populations grew and are now over 1,000 animals in the Northern Continental Divide Ecosystem.

But under the 2018 plan, the Forest Service created a new way to close roads which called for just the first 50 to 300 feet to blocked to motorized access in a standard it deemed “impassable.” The idea was to close roads and open or build others to allow for timber sales and forest management and that’s how it played out. Many new forest projects after the 2018 plan was in place included building new roads and closing others in their stead.

But that tack left culverts in place and people still found their way around the barriers on the closed roads, the plaintiffs maintained.

Federal Judge Dana Christensen, in his June 28 ruling largely agreed, referring to previous arguments in the case.

“By recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of [Amendment 19’s requirements], the Fish and Wildlife Service eschews Amendment 19 ... precisely because it was working.”

The Court likened such behavior to “throwing away your umbrella in a rainstorm because you are not getting wet.” 

“This same logic applies equally here,” Christensen said.

He found the same held true for bull trout habitat. Culverts, left unmaintained, plug with sediment over time. Once they plug, they can fail sending a wash of dirt and fine silt into streams that suffocates spawning beds of the fish.

Under Amendment 19, closed roads had culverts removed.

Christensen noted that even a Forest Service biologist had issues with that, citing an email from one that said the Forest Service isn’t “decommissioning many roads anymore and instead [is] making new roads meet the new impassable definition” and, therefore, would “not necessarily remove culverts.”

He also pointed to the Fish and Wildlife Service’s own 2015 recovery plan for bull trout.

The Forest Service’s 2015 Recovery Plan for the Coterminous United States Population of Bull Trout similarly states that “sediment impacts from roads can be addressed by identifying sediment-producing areas; . . . maintaining bridges, culverts, and crossings; or decommissioning surplus roads and removing culverts and bridges on closed roads.”

In other words, maintain culverts or remove them.

But Christensen did not adhere to all of Swan View and Friends of the Wild Swan’s arguments. They asked for Amendment 19 standards to largely be restored in the 2018 Forest Plan. He rejected that notion, noting it would disrupt many facets of the plan and Forest management in the process.

Still, the groups that brought the suit were pleased with the Forest Service’s decision to drop the appeal.

Keith Hammer of the Swan View Coalition, one of the plaintiffs in the suit, said the Forest Service filed its appeal on time, but then asked for and received two extensions before the final decision to drop the appeal entirely.

Moving forward, he said the Coalition would be monitoring upcoming projects proposed on the Flathead National Forest, including one on the Hungry Horse Reservoir, called the Dry Riverside Project as well as the Mid Swan and Rumbling Owl projects in the Swan Valley.

The Dry Riverside Project on the east side of the Hungry Horse Reservoir includes commercial timber harvest on 4,205 acres, and noncommercial vegetation treatments on 3,696 acres including thinning, burning, and whitebark pine planting.

The project also calls for almost 23 miles of new roads or reopening old roads and about 5.2 miles of temporary roads. Best Management Practices would be used on the roads and they would be made impassable to wheeled motorized use after the project is complete.

And therein is the rub. Logging companies say they need the roads to harvest the timber, but environmental groups say the Forest Service doesn’t do enough to close roads once they’re used and people go around the barriers.

Congress could take action on such matters soon.

Republican Montana Congressman Ryan Zinke, has renewed calls to have the grizzly bear delisted in the Greater Yellowstone and the Northern Continental Divide Ecosystem from the Endangered Species list.

Zinke argues the bears should be managed by the states as says as much in a recent letter to President Donald Trump.

But in the last few months of the Biden Administration, the U.S. Fish and Wildlife Service opted for a different plan, one that looks to manage grizzlies as one large population.