Endangered Species Law & Policy

On May 17, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed a ruling by the U.S. District Court for the District of Montana and upheld the U.S. Forest Service’s (Forest Service) decision to construct 4.7 miles of new roads in the Kootenai National Forest. The Kootenai National Forest is managed pursuant to the Forest Service’s Kootenai National Forest Plan (Forest Plan) that includes access-related amendments prohibiting any net permanent increase[] in linear miles of total roads.  These Forest Plan access amendments incorporate a 2011 Biological Opinion and Incidental Take Statement (ITS) for the threatened grizzly bear (Ursus arctos horribilis) that were developed in consultation with the U.S. Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act (ESA).  As incorporated into the Forest Service’s revised Forest Plan, the ITS permits incidental take of grizzly bears so long as the total linear miles of roads do not permanently increase in certain designated areas likely used by the species.

In 2013, the Forest Service approved the 4.7 miles of new roadway in connection with its approval of the Pilgrim Creek Timber Sale Project (Project), which requires the construction of new roadways for use by Forest Service staff and government contractors during implementation of the Project. The Project plan includes the installation of a barrier that will close off the new roads to all motorized travel following conclusion of the Project, although the Forest Service’s Record of Decision (ROD) approving the Project stated that [t]hese closure devices allow for motorized access sometime in the future, which may help fire suppression and stand-tending operations.

In 2013, Plaintiff Alliance for the Wild Rockies brought suit, claiming that the Project would create a net permanent increase in road miles in violation of the Forest Plan access amendments and would therefore violate: (1) the National Forest Management Act (NFMA); (2) the ESA, by failing to comply with the ITS limitations; and (3) NEPA, by incorrectly stating in the Environmental Impact Statement (EIS) for the Project that the Project will comply with the Forest Plan access amendments. The District Court enjoined the Project, pending preparation of a supplemental EIS, due largely to the ROD’s statement indicating that the new roads’ closure may not be permanent.  The Forest Service then issued a Clarification/Amendment of the ROD in 2014 to make it clear that all new roads constructed for the Project will be closed with a permanent closure device.  Based upon this ROD Clarification/Amendment, the District Court lifted the injunction, and the Plaintiff appealed.

The Ninth Circuit easily affirmed the lower court’s grant of summary judgment in favor of the federal defendants, ruling that the Forest Service complied with the NFMA, ESA, and NEPA. The court held that the Forest Service was not arbitrary and capricious in the implementation of its Forest Plan or its interpretation that the planned 4.7 miles of new roads do not count toward the prohibited net permanent increase in new roads because they instead constitute an acceptable, temporary increase in road miles that is permitted by the Forest Plan amendments.