by Rob Chaney of the Missoulian
The Forest Service made a wrong decision on protecting grizzly bears in the Flathead National Forest because it didn’t have a rule to make the decision with, according to the U.S. 9th Circuit Court of Appeals.
The case grew out of Flathead National Forest efforts to balance increased road use with protecting grizzly bear habitat in the 68,000-acre Moose Fire area north of Columbia Falls. The Moose Fire was one of several forest fires that burned alongside and in Glacier National Park in 2001.
The Swan View Coalition, Friends of the Wild Swan, Wildlands Center for Preventing Roads and Alliance for the Wild Rockies combined to sue the Forest Service and U.S. Fish and Wildlife Service in 2003. The groups argued the Forest Service erred by leaving burn-area backcountry roads in service for snowmobiling when they should have been closed to protect grizzly habitat. The groups claimed the Forest Service’s own forest plan gave priority to grizzly needs over other land uses.
Federal District Judge Don Molloy granted summary judgment to the Forest Service, although he observed in his opinion that the motorized use plans appeared “precariously close to political management of land use.”
The 9th Circuit took a different tack. Noting that the forest plan specifically favored “the needs of the grizzly bear when grizzly habitat and other land uses compete” the three-judge panel found the Forest Service lacked a standard to evaluate those competing uses.
The circuit judges sent the case back to Molloy with orders to have the Forest Service draft a standard “for evaluating when land use values ‘compete’ with grizzly bears’ needs within the meaning of the Forest Plan.”
“We saw project after project where they were exempting themselves from this (rule),” said Arlene Montgomery of Friends of the Wild Swan. “In prime grizzly bear parts of the forest, if there are competing uses, the needs of the bear are favored. The Flathead National Forest had pretty much chosen to ignore those guidelines.”
Forest Service officials in Kalispell countered those guidelines weren’t the proper starting point for the argument.
“I think we did give the bears some favoritism,” Flathead Forest spokeswoman Denise Germann said. “If you look at grizzly bear habitat today compared to 2000, it’s more secure.”
Germann said the Forest Service was basing its road use decisions on an earlier settlement agreement with the Montana Snowmobile Association and the Montana Wilderness Association. That agreement spelled out places appropriate for snowmobiling before the Moose Fire, Germann said, and the Forest Service was trying to preserve its intentions while protecting bear habitat in other ways.
Forest Service attorneys are still reviewing the 9th Circuit decision to see if they will appeal it or take other action. The environmental groups have two other lawsuits pending before the 9th Circuit on two other burn-area road decisions on the Flathead National Forest from the same fire year. Germann and Montgomery agreed those cases depend on similar legal questions as the Moose fire ruling.
