Bear-iered or Not?

Pages from 2014_07_07 NFS Litigation Weekly

Here’s a copy of the judge’s order.

I understand how folks are supposed to raise issues during administrative appeals.. but I’m not clear on how the Gov could argue that the road is not covered if it’s barriered, unless it was intended to be barriered. Confusing. Could someone closer to the action shed some light on this?

6 Comments

  1. Here’s how I read it. The forest plan (and apparently ESA incidental take statement) require that new roads be closed in a manner “such that a need for motorized access for maintenance is not anticipated for at least 10 years.” The ROD for the project said, “These closure devices allow for motorized access sometime in the future, which may help fire suppression and stand-tending operations such as pre-commerical thinning.” Such administrative use of the road would therefore amount to an increase in roads, which was prohibited by a forest plan standard. There has been a lot of discussion of how FS administrative use of closed roads affects grizzly bears, and maybe they are still fighting that battle, but it seems hard to argue that they were complying with the wording in the new plan amendment.

  2. The judge believed that the FS was ‘anticipating’ use of the road by the language it used in its decision. The plan standard used as examples “berm or guardrail, but the ROD used “gates” as an example of closure devices. The FS conceded that roads which are “generally gated” and open for “low intensity administrative use” could not be considered “closed” for the purpose of the standard. Slam-dunk – unless maybe “sometime in the future” (ROD language) necessarily means not for at least 10 years (plan language). In the context of the record cited by the judge, it doesn’t look like the FS appropriately committed to a “long term intent for no motorized use.”

    • From the Fish and Wildlife Service:

      “At the time of listing in 1975, the FWS identified habitat
      destruction, modification, and range curtailment as major contributing
      factors leading to the listing of the grizzly bear as a threatened species
      under the ESA (40 FR 31734-31736, July 28, 1975). The decreases in
      historical range, the isolated nature of extant populations, the building of 
      roads and trails in formerly secure grizzly bear habitat, and livestock
      practices on National Forests contributed to the 1975 listing
      (40 FR 31734-31736, July 28, 1975). Since 1975, habitat protection
      measures have focused primarily on providing secure habitat for bears to
      minimize the opportunity for human-caused mortality.”

      Human-caused mortality is the greatest threat to grizzly bears. Reducing roads has been a key component of grizzly bear recovery.

      In addition to direct mortality, many species of wildlife avoid roads and associated uses, which restricts the mobility that is important to their long-term persistence.

  3. Seems to me that there are “roads” open to public use that would impact bears, and there are “roads-gated” open only to restricted administrative use that would not affect bears. It’s not the roads, it’s the human activity. Am I wrong? As an aside – During my days in the woods, I’ve seen plenty of game birds and animals using roads for travel, rather like a ready-made high-standard game trail. Are grizzlies different?

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