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Wildlife lawyers: Flathead plan fails grizzlies, trout
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Wildlife lawyers: Flathead plan fails grizzlies, trout

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Grizzly band cubs

A grizzly and cubs roam the wilds of Montana. 

Grizzly bears and bull trout will lose much of what they gained from decades of protection in the Flathead National Forest if a new management plan gets OK’d, wildlife advocates argued in federal court on Wednesday.

Federal lawyers countered that those species and other animals actually benefit from improvements built into the new plan, during a hearing before U.S. District Judge Don Molloy in Missoula.

When the Forest Service adopted a new forest plan in 2018, one major change was the removal of road density rules collectively known as Amendment 19 in the previous 1986 plan. Those rules required the Forest Service to eradicate closed roads to give grizzlies secure habitat and prevent sediment from fouling bull trout spawning streams.

It also required the Flathead National Forest to count closed but unremoved roads in its overall road density total, which limits the miles of road per square mile of national forest. Research has shown grizzlies avoid even closed roads, especially when raising cubs.

“The new forest plan makes a massive change in on-the-ground conditions without any study of the effects,” Earthjustice attorney Timothy Preso told Molloy.

The Amendment 19 rules required those roads to be re-contoured, re-vegetated and have their culverts and bridges removed. New Flathead Forest rules allowing any road that’s blocked in its first 50 feet would be considered removed from the overall density total, when the rest of the mileage would still be on the landscape, Preso said.

Scaled-back closures are ineffective, because inspections of backcountry closures have found between 7% and 70% of gates and blockages have been illegally evaded by motorized users, Preso said.

U.S. Justice Department Attorney Frederick Turner told Molloy the new Flathead forest plan replaces a three-decade-old plan with updated science and policy. Those new rules provide more protections to grizzly bears and bull trout than Amendment 19 did, he said.

Those new rules include strict limits on new campground construction, over-snow vehicle use and road maintenance, Turner said. And the results are a large and healthy population of grizzlies in the Northern Continental Divide Ecosystem, which includes the Flathead National Forest.

“There are a host of other provisions for the protection of bears,” Turner told Molloy. “We’re not walking away — that’s not true.”

Grizzly bears got listed as “threatened” under the U.S. Endangered Species Act in 1975. At the time, fewer than 400 grizzlies were estimated to inhabit the Northern Continental Divide Ecosystem, which extends from the Canadian border through Glacier Park and south to Missoula. Today that region has about 1,000 grizzlies. The U.S. Fish and Wildlife Service has tried twice to delist grizzlies, but failed in court to prove the bears are recovered enough to no longer need federal protection.

Molloy questioned both sides about what might happen if he blocked the Forest Service from using the new plan rules. Preso replied the agency should be forced to return to its existing Amendment 19 rules, which he said were shown to be effective. Turner said there are at least six already-approved projects and four more under review that could be affected, ranging from habitat restoration to logging operations and ski-area improvements.

But the bigger question was whether the court might remand the rules (meaning Flathead officials could still use them while considering improvements) or vacate them (and return to the old policies until new ones can be approved). Attorney Lawson Fite for the American Forest Resource Council suggested Molloy could remand the biological opinion protecting grizzlies that the forest plan used — which would be a less-restrictive way of solving the problem.

Molloy also noted that the Flathead Forest’s over-snow travel regulations dated back to an executive order issued by President Richard Nixon. Attorney Marla Fox for WildEarth Guardians said the agency’s new rules had too many possible interpretations of suitable or known or designated routes to be legal.

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