Environmental groups achieved a mixed victory in federal court on Tuesday when a judge determined that government agencies failed to properly consider how increased road access would affect endangered grizzly bears and bull trout in Montana’s Bitterroot National Forest.
U.S. District Judge Dana Christensen found that the U.S. Forest Service and U.S. Fish and Wildlife Service violated the Endangered Species Act by not adequately analyzing how a 2023 forest plan amendment would impact these protected species. The amendment, known as Amendment 40, eliminated previous restrictions on road densities and motorized vehicle access across the 1.6-million-acre forest spanning Montana and Idaho.
The lawsuit was brought by four conservation organizations: Friends of the Bitterroot, Friends of the Clearwater, Native Ecosystems Council, and Wildearth Guardians. They argued that removing road-density limitations would harm species sensitive to vehicle traffic and habitat fragmentation.
Amendment 40 specifically eliminated the forest’s elk habitat effectiveness standard, which had previously limited open-road densities in third-order drainages. These areas contain third-order streams, which are formed when second-order streams converge. The conservation groups contended that this change would have far-reaching effects beyond elk habitat.
Judge Christensen agreed with several of the plaintiffs’ key arguments. He determined that the amendment could potentially damage grizzly bear secure habitat by removing open-road density limitations. The judge noted that agencies are required to use the best available science when issuing biological opinions, and in this case, they had failed to take a thorough examination of the amendment’s impact on bears through what he characterized as a flawed habitat analysis.
The agencies never acknowledged that eliminating road-density limitations would affect grizzly bears, according to the ruling. Similarly, the judge found that the Forest Service failed to properly consult with Fish and Wildlife regarding the amendment’s impact on bull trout and their habitat.
Christensen wrote that the Forest Service must reinitiate formal consultation when a forest plan modification affects a protected species in ways not previously considered. Instead of doing so, the Forest Service informed Fish and Wildlife that no consultation was necessary, claiming Amendment 40 would not result in any direct, indirect, or cumulative effects on bull trout or their habitat.
The final environmental assessment made no mention of bull trout whatsoever. When asked during public comment how the amendment would affect the fish, the Forest Service simply responded that it would not.
However, the conservation groups did not succeed on all their claims. The judge granted summary judgment to the government agencies on four claims under the Endangered Species Act and National Environmental Policy Act. While the groups argued that an environmental impact statement should have been prepared, Christensen ruled that they had not demonstrated such a statement was legally required, despite finding that further consideration of impacts to grizzly bears and bull trout was necessary.
The judge also sided with the agencies on two claims under the National Forest Management Act. The conservation groups had argued the amendment violated this act by not mentioning methods to maintain or restore grizzly bear and bull trout habitat. Christensen determined that since the amendment focused specifically on elk habitat, it was not required to address other species’ habitats.
Both sides have proposed different remedies. The conservation groups want the judge to declare the amendment, biological opinion, and environmental assessment unlawful, then vacate and remand them to the agencies for additional analysis. The government agencies also seek remand but oppose vacating the amendment.
Christensen called for additional legal briefing from both parties on how to proceed, specifically addressing the potential disruptive consequences of either vacating or not vacating the amendment.
Maxine Sugarman, an associate attorney with Earthjustice’s Northern Rockies Office representing the plaintiffs, characterized the ruling as an important victory. She expressed hope that the court’s final remedy would recognize the significant risk to endangered species and halt further roadbuilding in the region under what she described as a deeply flawed forest plan amendment.
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