Groups to Sue Flathead Forest Over Logging Project in Grizzly Bear, Bull Trout Habitat
The legal challenge hinges on the recently approved West Reservoir Project, which calls for 4.7 miles of new roads that won't be counted among the forest's total road network
By Tristan Scott
A pair of local conservation groups on Tuesday announced plans to sue the Flathead National Forest for authorizing a timber sale in northwest Montana without first revising its road management policy, per a federal judge’s order, to cushion the long-term impacts of new logging roads on federally protected species such as grizzly bears and bull trout.
The groups, Swan View Coalition and Friends of the Wild Swan, on March 24 submitted their 60-day litigation notice challenging the West Reservoir Project, arguing that the federal agency’s failure to satisfy the judge’s order amounts to a violation of the Endangered Species Act. To correct the deficiency, the groups said the agency must formally consult with the U.S. Fish and Wildlife Service (USFWS) to update its biological opinion about how abandoned roads affect threatened and endangered species after logging activities have ceased. The groups said a project-specific biological opinion is required to ensure the Flathead National Forest’s 2018 Forest Plan complies with the Endangered Species Act.
If the alleged violations of the Endangered Species Act aren’t corrected within 60 days, the groups will move forward with a lawsuit in federal district court, where they’ve been litigating the Flathead National Forest’s road management policies for eight years.
On the West Reservoir Project, which would log portions of a nearly 130,000-acre expanse of federal land west of Hungry Horse Reservoir, the groups also took issue with the Flathead National Forest’s decision to invoke an “emergency consultation procedure,” which the groups framed as an effort to “sidestep” the Endangered Species Act consultation requirements “under the guise of an emergency.”
“The long-standing emergency exemptions under the Endangered Species Act are intended for things like hurricanes and floods and earthquakes — true emergencies where the agencies don’t have time for consultation because they have to take immediate action,” Keith Hammer, executive director of the Swan View Coalition, said in an interview Tuesday. “Those emergency consultation procedures have been in place for quite a while. What’s brand new is attempts by the Forest Service to use this to exempt logging, and especially logging activities that reflect the standard old timber programs.”
As with most recent logging projects slated to occur on the Flathead National Forest, the West Reservoir Project was approved under a newly established Emergency Action Determination (EAD) with the stated purpose of reducing wildfire risk. When combined with other revisions to the National Environmental Policy Act, known as NEPA, the emergency designation allows the U.S. Forest Service to expedite approval for logging activity while bypassing more rigorous forms of analysis required under national environmental laws.
Based on that determination, the forest separately invoked “emergency consultation procedures” under the Endangered Species Act, which states that “under emergency circumstances, consultation with the USFWS can occur informally through alternative procedures …”
“Pursuant to emergency consultation procedures, the forest has provided the USFWS with biological assessments that include a detailed description of the project activities, an evaluation of the impacts to affected species, and a detailed list of design features to minimize the impact of activities on affected listed species,” according to the Flathead National Forest’s decision notice approving the West Reservoir Project.
As Earthjustice prepares to represent the same groups in the forthcoming West Reservoir litigation, a spokesperson for the firm said the logging project appears to be the first instance in which the agency has invoked the ESA’s emergency procedures.
“I’m not sure we can say definitively that it’s the first across the country, but the first we know of,” the spokesperson said.
Hammer accused the forest of using a legal loophole to advance timber projects in sensitive habitat rather than cure deficiencies in its own forest plan by addressing its road-management policies.
“This is not a one-time emergency,” Hammer said. “They can paint it with whatever brush they want — reducing wildfire risk, mitigating damage from blister rust, improving forest health and resiliency — they’ll use whatever excuse they can come up with to put public logs in private sawmills.”
The U.S. Forest Service does not comment on pending litigation. However, in its environmental assessment of the West Reservoir Projects, it explains how the project’s road management activities would be carried out to reduce the effects on threatened and endangered species, including by rendering new roads impassable to motorized vehicles and by removing and replacing four culverts. Culverts left in place on old logging roads can deteriorate during rain events or flooding, increasing turbidity in nearby streams and rivers and harming bull trout.
The Flathead National Forest’s policy for road building has been evolving for decades. In 1995, forest officials adopted a change to the policy called Amendment 19, which required forest managers to “reclaim” any road it wanted to delete from its total motorized road 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.”
In 2018, when it adopted its current revised forest plan, the Flathead National Forest 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.
In a June 2024 court order, U.S. District Judge Dana Christensen acknowledged the ongoing chronic problem of ineffective road closures and unauthorized motorized access, even if forest managers have closed the roads to motorized use and deemed them “impassable.” But Christensen stopped short of prohibiting approval of any future timber projects under the Flathead’s revised forest 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.
The federal agencies initially filed a notice of their intent to appeal Christensen’s decision, as well as two subsequent motions for deadline extensions, but 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,” Ben Scrimshaw, an Earthjustice attorney who represented the plaintiff groups, said at the time. “We will keep a close eye on what the Fish and Wildlife Service and Forest Service do next and will respond as needed.”