Grizzly Groups Prevail in Lawsuit Requiring Federal Agencies to Reassess Road Density
The Ninth Circuit dismissed the case after the Flathead National Forest opted not to appeal a lower court’s determination that land management agency failed to accurately calculate road density for new logging projects
By Tristan Scott
By dismissing a lawsuit between federal land and wildlife management agencies and a pair of local grizzly bear advocacy groups, the U.S. Court of Appeals for the Ninth Circuit on Feb. 21 delivered a final victory to the conservation groups, deferring to a lower court’s determination last summer that logging roads intensify pressure on grizzly bears even after they’ve been decommissioned.
A federal judge in Missoula issued the order last June when he wrote that logging roads can displace bears from their habitat even if forest managers have closed the roads to motorized use and deemed them “impassable,” a standard the agencies employ when approving new roadbuilding for timber projects on the Flathead National Forest.
The appellate court’s 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. According to a decision last summer, 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.
“This is a big deal because the Forest Service now has to come up with some meaningful way to account for road density because the system they were trying to use is bogus,” Keith Hammer, chair of the Swan View Coalition, said Friday.
The federal agencies initially filed a notice of their intent to appeal Christensen’s decision, as well as two subsequent motions for deadline extensions, they ultimately decided not to move forward with the appeals process.
“With the government’s appeal dismissed, the focus now shifts to what the agencies will do to limit the impacts of roadbuilding on grizzly bears and bull trout,” according to a prepared statement from Ben Scrimshaw, senior associate attorney with Earthjustice covering the northern Rockies, who represented the plaintiff groups. “We will keep a close eye on what the Fish and Wildlife Service and Forest Service do next and will respond as needed.”
In 2019, the conservation groups first challenged the 2018 revised Flathead National Forest Plan, the accompanying Environmental Impact Statement, and the FWS’ biological opinion. The court ruled that the agencies’ analysis of impacts to grizzly bears and bull trout violated the Endangered Species Act, particularly in its departure from a prior forest plan amendment the agencies credited with conserving the species. In response to the 2019 challenge, the litigants said FWS made a series of “minor but inadequate revisions” to its biological opinion, which led conservation groups to sue again in 2022.
Specifically, the lawsuit challenged 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 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.
Because forest plans must undergo a revision at least every 15 years, the FNF in 2018 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.
“Judge Christensen essentially ruled that the government can’t just close a logging road, say it has no further impact on wildlife, and not count it against limits on total road density,” according to Hammer. “We’re glad to see that ruling still stands and hope the government recognizes it must reinstate meaningful limits on its road building program.”