Conservationists take partial win in case over Montana grizzly, trout habitat

(CN) — Western conservation groups on Tuesday prevailed in their federal Endangered Species Act claims about the negative impacts of road and vehicle access to grizzly bears and bull trout in the Bitterroot National Forest.

However, a Montana federal judge ruled that the U.S. Forest Service wasn’t required to prepare a public document detailing those environmental impacts. U.S. District Judge Dana Christensen called for more legal argument from both sides about how to proceed.

“The crux of this case is whether the agencies adequately considered the impact Amendment 40 — a programmatic elk standard amendment that eliminated prior restrictions on road densities and motorized access — would have on grizzly bears and bull trout,” Christensen wrote.

The amendment, finalized in 2023, affected a forest plan for the 1.6-million-acre forest in Montana and Idaho. It eliminated the plan’s elk habitat effectiveness standard, which removed limitations on open-road densities in third-order drainages — home to a third-order stream, which is formed by the confluence of second-order streams. A first-order stream has no tributaries.

The conservation groups — which include Friends of the Bitterroot, Friends of the Clearwater, Native Ecosystems Council and Wildearth Guardians — said removing those road-density limitations impacted species affected by road density and motor vehicles. The defendants, including the U.S. Fish and Wildlife and Forest services, said they considered the amendment’s impacts, adding it didn’t propose or authorize any specific project.

Christensen agreed with the conservation groups that Amendment 40 has potential to damage the bear’s secure habitat, as it removed the forest plan’s limitations on open-road densities. Agencies must rely on the best available science when issuing biological opinions.

Additionally, the judge ruled the agencies failed to take a “hard look” at the amendment’s impact on bears by using a flawed habitat analysis. The agencies also never acknowledged that the elimination of road-density limitations impacts grizzly bears.

The judge also agreed with plaintiffs about the bull trout, writing that the Forest Service failed to properly consult with Fish and Wildlife about the amendment’s impact to the fish and their habitat.

“The Forest Service violates the ESA if it fails to reinitiate formal consultation with the FWS when a forest plan is modified such that it affects a protected species in a manner not previously considered,” Christensen wrote. “Here, rather than reinitiate formal consultation with the FWS, the Forest Service informed the FWS that no consultation was required because Amendment 40 ‘will not result in any direct, indirect, or cumulative effects on’ bull trout or their habitat.”

A final environmental assessment makes no mention of bull trout, Christensen wrote. During public comment, when someone asked how it would affect the fish, the Forest Service replied, “it won’t.”

But the groups didn’t prevail on all their claims. The judge granted summary judgment to the defendants in four of the Endangered Species Act and National Environmental Policy Act claims.

The groups had also argued that the agencies should have prepared an environmental impact statement, as their environmental assessment didn’t properly examine the impacts to grizzly bears and bull trout.

While siding with them on other claims, the judge wrote the groups didn’t show the law required an environmental impact statement.

“The conclusion that further consideration of grizzly bear and bull trout is necessary does not compel the conclusion that an EIS is required,” the judge wrote.

Christensen also sided with the agencies on two remaining claims over the National Forest Management Act, which the groups said was violated given that the amendment had no mention of methods to maintain or restore grizzly bear and bull trout habitat.

However, Christensen said the amendment focused on elk habitat, so its purpose wasn’t targeted toward grizzly bears or bull trout habitats.

The parties have offered differing solutions. The groups want the judge to declare the amendment, biological opinion and environmental assessment unlawful, vacate it and remand it to the agencies for more analysis. The agencies also want the decision remanded, but not vacated.

“In light of the rulings made above, further briefing on this issue is required, specifically briefing that addresses the potential disruptive consequences of either vacatur or the failure to vacate,” Christensen wrote.

Maxine Sugarman, associate attorney with Earthjustice’s Northern Rockies Office, called the ruling an important victory in a statement to Courthouse News.

“Federal agencies put these species at risk by charging forward with plans for additional roadbuilding,” she added. “We are hopeful that the court’s remedy will recognize this significant risk and halt any further roadbuilding in the region under this deeply flawed forest plan amendment.”

The Fish and Wildlife Service told Courthouse News that it doesn’t comment on pending litigation.