The Forest Service didn't "err on the side of the bear" when it left out illegal road use from the project assessment.
(CN) -- A Montana logging project in grizzly habitat in the Kootenai National Forest will remain on hold until federal officials reassess how road use -- particularly illegal road use -- impacts the bears, a federal judge ruled on Monday.
"This court has repeatedly held that it is arbitrary and capricious to not include illegal motorized use that it knows to occur into calculations, regardless of whether the use is chronic and site specific," U.S. District Judge Dana Christensen wrote in the 40-page opinion.
The Center for Biological Diversity led environmental groups in suing the U.S. Forest Service and U.S. Fish and Wildlife Service in 2022, seeking to block the Knotty Pine Project, and Christensen granted the environmentalists' motion for a preliminary injunction the following year.
The 10-year project authorizes a total of 7,465 acres of prescribed burning and commercial harvest on 2,593 acres in the Kootenai National Forest's Cabinet-Yaak Mountains, designated a recovery zone for threatened grizzly bears.
The project also called for the addition of 3.76 miles of an undetermined road, 1.2 miles of temporary road construction and 35 miles of road maintenance -- the source of the majority of the claims raised by the environmental groups.
The Barack Obama-appointed judge noted that road management is widely known as a powerful tool to balance the needs of people with those of bears. Low-elevation habitats with high road density may displace bears from important spring habitats or lead to higher mortality.
Christensen found the Forest Service violated the National Environmental Policy Act by failing to take a hard look at the impact of unauthorized road use on grizzly bears.
While the Fish and Wildlife Service issued an amended biological opinion "in an attempt to remedy the court's concerns regarding a lack of consideration of illegal road use" by conducting a "qualitative analysis" of the effects of illegal road use on grizzlies, it did not satisfy the court.
The agencies argued that including known illegal road use in its calculations is not feasible and would require making unsupported assumptions.
"But the court has rejected this excuse also," Christensen wrote. "And for good reason: by excluding illegal roads, [Fish and Wildlife Service] makes an 'unsupported assumption' that illegal roads have no effect on grizzly bears. Such an assumption fails to 'err on the side of the bear.'"
As such, the environmental groups prevailed on their claims brought under the National Environmental Policy Act and National Forest Management Act as they related to illegal roads.
"The failure to consider ineffective closures and illegal roads requires additional NEPA review in order to adequately analyze the impacts of illegal roads on grizzly bear," Christensen wrote.
The Kootenai National Forest Plan has motorized vehicle access and security guidelines, incorporated from an access amendment the Forest Service approved in 2011 to meet its responsibilities under the Endangered Species Act.
The project's environmental assessment didn't explain how it complies with the access amendment, Christensen found.
The agencies argued the Forest Service considered illegal road access by noting in the environmental assessment that it monitors illegal use and completes repairs to gates or road barriers as soon as possible.
"But federal defendants again miss the mark," Christensen wrote. While the agencies argue that the National Environmental Policy Act only requires them to take a "hard look" at environmental impacts rather than "require the impossible," the court found that the access amendment requires that roads with ineffective barriers be included in the calculations.
"Defendants contend that 'the 'mere potential' that illegal motorized access could occur is not enough to conclude that it has occurred,'" Christensen wrote.
But the access amendment requires that roads with ineffective barriers be counted in total road calculations.
"Having now seen a 'qualitative analysis,' the court is unconvinced that anything short of a quantitative analysis would comply with the access amendments and Kootenai Forest Plan," Christensen wrote.
While the environmental groups succeeded on the bulk of their claims against the federal agencies, the court found they hadn't proved that the agencies violated the National Environmental Policy Act by approving the project's pre-commercial thinning treatments in bear territory.
Those pre-commercial thinning treatments will be largely completed by hand crews accessing the area mostly by open roads.
The Forest Service billed the Knotty Pine Project as a way to "promote resilient vegetation conditions by managing for landscape-level vegetation patterns, structure, patch size, fuel loading and species composition," according to the Forest Service's 2022 record of decision.
Now, the agencies must take another look at the environmental impacts of the project before it can proceed.
Neither the environmental groups nor the federal defendants replied to a request for comment before press time.