by Michael Howell
U.S. District Court Judge Dana Christensen heard oral arguments in the federal courthouse in Missoula last Thursday in a case filed by five environmental conservation organizations challenging an amendment to the Bitterroot National Forest’s Land Management Plan. The Forest Service (FS) approved the programmatic Amendment 40 for Elk Habitat, Old Growth, Snags and Coarse Woody Debris Objectives in 2023 “in order to remove an outdated standard to manage roads toward a certain percentage of elk habitat effectiveness in third order drainages,” according to the agency.
Friends of the Bitterroot, Friends of the Clearwater, Native Ecosystems Council, Nimiipuu Protecting the Environment and WildEarth Guardians filed suit in December of 2024 challenging the adoption of Amendment 40, alleging that the eliminated restrictions on road retention and motorized use was done without considering resulting impacts on grizzly bears and bull trout, both listed as endangered species. The non-profit organizations also challenged the U.S. Fish and Wildlife Service’s (USFWS) July 8, 2021 Biological Opinion for the 1987 Plan as amended because it ignored basic science and swept under the rug impacts on grizzly bears from the Forest Service’s new approach to road management.
Patton Dycuss, attorney for the organizations, told the Court on Thursday, “There is no question that forest roads harm grizzly bears and bull trout. Grizzlies need areas of connected and undisturbed habitat and avoid roads as much as possible, and bull trout need cold, clean and connected habitat. But forest roads contribute sediment to streams and that sediment raises water temperatures and alters habitat and makes it difficult for these trout to reproduce and survive.”
“Before Amendment 40 the Bitterroot Forest Plan limited road density which in turn reduced the road-related harm to these species. Now with Amendment 40, the guardrails are off,” said Dycuss. He said the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) require the Forest Service to analyze the impacts of removing these guardrails.
“The proposed amendment would allow the FS to carve up the protected areas for grizzlies and they did not even consider the impacts on bull trout,” he said. “There is nothing in the plans preventing the Forest Service from opening new roads and thus increasing the road-related harm to grizzlies and bull trout.”
Dycuss told the Court that the USFWS in its Biological Opinion artificially inflated the amount of secure habitat in the forest by defining it to include patches of land that were too small to support the foraging requirements of grizzlies. He said the best available science showed through multiple studies that patch-size – the amount of acres needed for grizzly foraging behaviors – exceeds 2,200 acres. The USFWS in its Biological Opinion considered a one acre patch-size to be sufficient. “One acre can’t possibly provide the forage habitat necessary for biological needs of grizzlies,” he said.
He said the failure to consider road density outside the areas of secure habitat and allowing unlimited roading and motorized use between the small patches also severely reduces the connectivity required between patches. He criticized the agency for its “suggestion that they should get a blank check outside recovery zones” as being antithetical to USFWS’s own recovery plan, “requiring grizzlies to pass through a mine-field of roads to get from one Recovery Zone to another.”
Dycuss said the Forest Service also violated the law by not considering the impact of impassable or closed roads on grizzly bears in and outside the secure areas, claiming that research has shown that grizzly bears were consistently displaced from roads and habitat surrounding roads, often despite relatively low levels of human use and avoid areas with high total road density even when the roads are closed.
He said they also failed to consider the impact of illegal motorized use of the areas.
As to the impacts on bull trout, he said the agency failed to consult with USFWS about bull trout at all in the Environmental Assessment of the amendment. He said the agency’s claim that a previous consultation was sufficient is not sufficient because it was done prior to Amendment 40 and so couldn’t possibly have considered the impacts of the amendment.
He clarified for Judge Christensen that the plaintiffs were asking him to vacate the portion of Amendment 40 that removed the previous plan’s open road density limits in third order drainages and conduct a full Environmental Impact Statement on the impacts to grizzlies and bull trout.
Erika Norman, representing the defendants in the case, told the Court that the amendment was focused simply on the agency’s elk management effectiveness standards and that it was directed only at open roads. “That means that the standards had nothing to do with temporary roads, closed roads or gated roads. Changes could be made on those roads and not get tripped up in this standard,” she said.
In response to the plaintiffs’ claim that the amendment removes the guardrails in the Forest Plan, she said, “Far from being a guardrail it was more like a pile of cones in the middle of the road that served as quite an obstruction to projects that would benefit the environment and reduce the number of roads.”
According to Norman, under the 1987 standard, if the Forest Service wanted to make any changes in a third order drainage that was out of compliance and that change did not bring that drainage into compliance with the 1987 standard, then the Forest Service could not do that project without doing a project specific amendment. She gave as an example a drainage in which they might plan on reducing the road density by nine miles but to meet the standard would require removing 10 miles. “Then that project would be obstructed,” she said.
She also claimed that the 1987 Plan was based on outdated science. She said, “Recent science found most important to elk are forage and nutrition in summer as well as security in the fall when hunting is happening. But the standard in 1987 was focused on road density in the summer. So, there was a mismatch.”
According to Norman, the standard prior to amendment was never a workable standard because the studies supporting it were done on large drainages that didn’t apply to smaller drainages. “It was set up to fail,” she said.
“Finally,” she said, “It was removed because FS was doing project specific amendments after project specific amendments” which she said “was not a practical approach and vulnerable to legal challenge.”
Norman also claimed that the plaintiffs fears that the amendment would lead to too much road building are not warranted. She said the amendment did not authorize any road building and the plaintiffs need to wait until some specific project relying on the plan is decided on.
“We do not know how the removal of this standard would play out,” she said.
She said that even though the Environmental Assessment of removing the standard does not address bull trout, it does address aquatic ecosystems more generally. “There is no direct or indirect pathway from removing 1987 elk habitat standards to an aquatic impact,” she said, “because of the in-fish guardrail that is in place which is the real protection for aquatic habitat and it has not changed since 1995. The Forest Service is not required to analyze an effect that isn’t foreseeable.”
She concluded saying, “Plaintiffs claim fails if the amendment is not directly connected to a resource. Grizzly bear connectivity is not directly related to the amendment. Its purpose is about aligning standards with current elk science. It has nothing to do with grizzlies or bull trout. The effect of this decision has nothing to do with grizzly bears. It makes no decision about patch size, no decision about roads. All it does is remove an obstacle while leaving in place a number of guardrails. And how that will play out remains to be seen. If some projects do include building roads that disrupt connectivity, there will be a lawsuit, surely.”
Norman said that the Plaintiffs’ claim upon which their whole case stands is that Amendment 40 will necessarily mean more open roads.
“If your honor does not buy that premise then the entire case fails. And in fact, that premise requires a sort of daisy chain of causation that is easily broken apart. It requires that with Amendment 40 in place the Forest Service will now embark on decisions to open more roads and not just open more roads where the plaintiffs are but open more roads where the habitat or resources they are concerned about exist. The next chain in that link is that those open roads will be allowed under the Forest Plan. That is a big ‘if’, as we explained. The next chain in that link is that those roads would be allowed under the in-fish standard. That is another big ‘if’. The next link in that chain is that those roads would be okayed by the USFWS and comply with the grizzly bear Biological Opinion limits after consultation and finally that those roads are the roads that the Forest Service wants to open or build. They would be consistent with FS policy and that there would be money available to do that kind of work. Those are all big ‘ifs’ and this is a chain of speculation that is not supported by the record,” said Norman
Judge Christensen responded, “But what’s the event that triggers the chain of events? The event that triggers the chain of events is Amendment 40, right?”
Norman said, “The event that triggers the chain of events would be the Forest Service deciding to do what plaintiffs fear that the Forest Service will do and that hasn’t happened yet. Amendment 40 is only about open roads and not temporary or closed roads.”
Peter Torstensen, another attorney representing the defendants, responded that the Court should not be asked to second guess the USFWS and the Forest Service’s expert judgment that there would be no impact on grizzly bears or apply a standard for management in recovery zones to areas outside those recovery zones. He said there is no science about minimum patch sizes outside recovery zones that shows small patch zones are not effective.
Judge Christensen asked, “Why would the patch size in the Bitterroot be any different than the patch size identified in the scientific literature that seems to suggest 2,200 to 2,300 acres? What’s so different about the Bitterroot? How did your clients come up with this one acre patch size?”
Torstensen said, “My understanding is that they used the standard measure in terms of how to calculate whether a patch or an area was secure by whether it was 500 meters from an existing road and then they determined that because even small patch sizes can play an important role in connectivity for a grizzly bear to move between larger patch sizes that they didn’t want to exclude that from the consideration of secure habitat. But again, they still have substantially larger patches and they still have a large majority of patches, more than 2,500 acres, and importantly only about 271 out of about 627,000 patches are actually 10 acres or less. So, we are only dealing with a small number.” He said USFWS concluded that using secure habitat was sufficient for considering impacts on grizzlies.
Judge Christensen thanked the attorneys for their comments and will make a decision after further consideration.
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