MISSOULA — Grizzly bear advocates are cheering two recent appeals court actions that could help preserve secure habitat for bears in northwest Montana and on all national forests.
The Ninth Circuit Court of Appeals recently upheld Missoula federal district judge Donald Molloy’s rulings on a few counts that will require the Kootenai National Forest to keep the Black Ram logging project on hold for a while longer. The appeals court upheld rulings on two of four claims that the U.S. Forest Service challenged, so the agency must redo parts of its project analysis.
First, the justices agreed that the Forest Service failed to comply with the Kootenai Forest Plan because the agency didn’t show whether or how it included unauthorized roads in its road density calculations.
Roads increase the likelihood of human-grizzly conflict because they take people into grizzly habitat and sometimes bears die as a result. Grizzly bears tend to avoid areas with lots of roads, and research has shown bears avoid or die in areas where the density is greater than 2 miles of any kind of road per square mile.
The 153-square-mile Black Ram project area already has 408 miles of road and an overall road density of almost 3 miles per square mile. The project requires the construction of an additional 3.3 miles of new permanent road and 90 miles of reconstructed road. That doesn’t factor in unauthorized roads, which are user-created roads or closed roads that are used illegally in spite of gates or barriers.
U.S. Forest Service attorneys claimed the agency didn’t have to count unauthorized roads, because unauthorized use is sporadic. The attorneys also argued that the Forest Service promptly fixed gates and barriers that were found to be breached. But that’s not what the data shows.
The Yaak Valley Forest Council conducted a road survey on the Kootenai National Forest in 2020 and 2021 and submitted numerous photos to the Forest Service documenting well-worn tracks going around 15 ineffective berms, 17 ineffective gates, and 13 roads with no gate or berm. In 2020, the Kootenai Forest itself found 32 breached barriers and 40 breached gates and repaired only nine of the gates.
Court documents show that unauthorized road use was observed in the Black Ram area in three of eight years and only a small fraction of gate and barrier breaches were promptly repaired. So the court ruled the agency “may not exclude categorically documented unauthorized road use.”
Second, the justices agreed that the U.S. Forest Service didn’t take “a hard look,” as required by the National Environmental Policy Act, at unauthorized road use and its effects. The justices pointed at the agency’s unsupported claims of sporadic use of roads and prompt barrier repair as proof.
However, the appeals court reversed Molloy’s rulings that found the Fish and Wildlife Service hadn’t used the best available data for its Cabinet-Yaak grizzly population estimate in its biological opinion, and the U.S. Forest Service violated the law when it used the “flawed” FWS biological opinion.
Mike Garrity, Alliance for the Wild Rockies executive director, was pleased with the appeals court decision. The other plaintiff in their case was Native Ecosystems Council.
“The Ninth Circuit ruled that the Forest Service violated its own Forest Plan standard for road density in grizzly bear habitat by contending gated or bermed roads are closed. But as photographically documented, there’s no question that people are still driving on these roads illegally, they just go around the gates or over the berms,” Garrity said.
“The bottom line is that the Cabinet-Yaak grizzly population is failing every recovery target and goal. It is long past time for the Forest Service to recover grizzly bears by protecting their habitat as required by law instead of destroying it. It’s unfortunate we have to take the Forest Service to court to force it to follow the law. But it’s either that or watch the agency log and road the Cabinet-Yaak grizzly population into extinction.”
In another lawsuit related to Forest Service roads, the Forest Service and the Fish and Wildlife Service asked the Ninth Circuit Court of Appeals to dismiss its appeal of a case challenging a 2022 biological opinion of the effect of roads on threatened grizzly bears and bull trout as spelled out in the Flathead National Forest 2018 Management Plan. The Fish and Wildlife Service will have to now produce a third biological opinion that takes “impassible” roads into account, and the Flathead Forest may have to adjust its management plan as a result.
A year ago, Missoula federal magistrate Kathleen DeSoto ruled the Fish and Wildlife Service's revised biological opinion failed to consider the effect of ineffective road closures on grizzly bears and bull trout. Molloy had found the first biological opinion written in 2017 to be inadequate, and DeSoto said the agency hadn’t done anything between 2017 and 2022 to investigate the effect of unauthorized roads on grizzly bears so it couldn’t back up its claim that the effect was “unknowable.”
Even though DeSoto allowed all the logging projects proposed on the Flathead Forest to go ahead, the federal government challenged her ruling to district judge Dana Christensen. Christensen not only agreed with DeSoto but agreed with the plaintiffs on one other claim: that a growing bear population didn’t show a lack of an effect.
In August, the federal government appealed. Then, last week, it requested a dismissal, which the appeals court granted. Earthjustice attorney Tim Preso said the dismissal probably had nothing to do with the current federal budget freeze.
“It is not uncommon for the government to file a notice of appeal to preserve their options while they work it out internally what they want to do. Then if they decide they don’t want to pursue the appeal, they can ask for it to be dismissed,” Preso said.
The two plaintiffs, Friends of the Wild Swan and the Swan View Coalition, said they hope the Forest Service is more honest and accurate when accounting for various roads.
“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,” said Keith Hammer, Swan View Coalition Chair. “We’re glad to see that ruling still stands and hope the government recognizes it must reinstate meaningful limits on its road building program.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.
