Roads Ruling in Flathead Forest Lawsuit Favors Grizzly Bear Advocacy Groups

A federal judge in Missoula issued a June 28 order recognizing that logging roads intensify pressure on grizzly bears and can displace them from their habitat even if forest managers have closed the roads to motorized use and deemed them “impassable,” an ineffective standard the agencies employ when approving new roadbuilding for timber projects on the Flathead National Forest.

Barring an appeal from the plaintiffs, the ruling concludes a legal saga that began in April 2019 when two local conservation groups, Friends of the Wild Swan and Swan View Coalition, sued the U.S. Fish and Wildlife Service (FWS) and the Flathead National Forest (FNF) over the road-building provisions in FNF’s revised forest plan. The new ruling by U.S. District Judge Dana Christensen acknowledged that grizzly bears have learned to avoid roads — even closed roads — and are often displaced from habitat that features them. The ruling builds upon a favorable decision for conservation groups in March, when a federal magistrate found that the FWS and FNF failed to lawfully examine the impacts to grizzly bears and bull trout from motorized trespass on closed roads.

Although Christensen acknowledged that the ongoing chronic problem of ineffective road closures and unauthorized motorized access can negatively impact grizzly bears, he stopped short of prohibiting approval of any future timber projects under the revised plan as currently written. Instead, Christensen remanded the provisions of the plan that violated the Endangered Species Act back to the agencies for further consideration.

Specifically, the lawsuit takes aim at the new forest plan’s “impassable” standard for determining total road density, which is less rigorous than the old plan’s “reclaimed” standard. The distinction between the two standards has become the central sticking point in the lawsuit, which could force the federal agencies to reconsider how they calculate road density in grizzly bear and bull trout habitat when approving logging projects.

“The impassable standard is plainly less demanding than the reclaimed standard —reclaimed roads have specific, mandatory minimum treatment standards … that are not required for impassable roads,” Christensen wrote in the order, citing a 1997 study by grizzly bear researchers Rick Mace and John Waller.

“The researchers ultimately concluded that ‘grizzly bears can persist in areas with roads, but spatial avoidance will increase and survival will decrease as traffic levels, road densities, and human settlement increases,’” Christensen wrote. “Importantly, the researchers also noted that ‘unless a road has completely revegetated, managers should assume that some level of human use is occurring along closed roads, and grizzly bears will respond to that use.’ This finding again undermines [the] decision to exclude impassable roads from [total motorized road density].”

Keith Hammer, chair of Swan View Coalition, cheered the ruling and urged the federal agencies to return to a more rigorous standard that supports FNF’s mission to build a sustainable logging program.

“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,” Hammer said. “The key is to quit building more logging roads. A truly sustainable logging program would not require ever more roads into ever more pristine forests.”

Kira Powell, a spokesperson for FNF, said on June 29 that the agency was still reviewing the order and she could not comment on whether or not it plans to appeal the ruling.

The FNF is part of several regional ecosystems and recovery units that support populations of grizzly bear and bull trout, which are both federally listed as threatened under the ESA, including the Northern Continental Divide Ecosystem (NCDE), one of six grizzly bear recovery zones. The FNF also plays a central role in the region’s timber industry, supporting roughly 1,500 jobs and $50 million in labor income, according to DeSoto’s findings.

The FNF’s 1986 Land and Resources Management Plan provided the framework for forest management for several decades. In 1995, forest officials adopted a change to the plan called Amendment 19, which required the FNF “reclaim” any road it wanted to delete from its total motorized route density (TMRD) calculations. A reclaimed road is a road that “has been treated in such a manner so as to no longer function as a road or trail and has a legal closure order until reclamation treatment is effective.” Road reclamation was accomplished by “recontouring to original slope, placement of natural debris, or revegetation with shrubs or trees,” the plan states. At a minimum, the treatment requirements included the removal of culverts.

But forest plans must undergo a revision at least every 15 years, and in 2018 the FNF revised its 1986 plan and replaced Amendment 19’s “reclaimed” road standard with an “impassable” road standard. Under the revised plan, impassable roads no longer count toward total road density if the road —generally the first 50 to 300 feet — has been treated to make it inaccessible to wheeled vehicles during the bear’s non-denning season.

The lawsuit filed by Friends of the Wild Swan and Swan View Coalition says the new plan’s shortcomings provide insufficient safeguards to grizzly bears and bull trout, and that the FNF’s revised plan allows for significant new roadbuilding without setting a sufficient standard for reclamation after a timber sale is complete.

U.S. Magistrate Judge Kathleen DeSoto on March 11 issued a 47-page set of findings and recommendations that partially favored the plaintiffs’ claims, including by determining that FNF’s current road management plan does not account for the impacts of illegal motorized use of logging roads after they’re removed from the forest’s road density inventory. Although the court and the litigants recognize that “illegal use is always possible,” DeSoto’s recommendations insist that the calculations “must account for unauthorized motorized use.”

Christensen’s order last week affirmed those recommendations.

“Once again the court found that roads harm wildlife — particularly grizzly bears and bull trout,” Arlene Montgomery, program director for Friends of the Wild Swan, said in a prepared statement. “The Flathead needs to make a good faith effort to prioritize wildlife over road construction rather than continue to degrade their habitat.”

The law firm Earthjustice represented Friends of the Wild Swan and Swan View Coalition in the lawsuit.

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