Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 1 of 48
`
`Rebecca K. Smith
`PUBLIC INTEREST DEFENSE CENTER, PC
`P.O. Box 7584
`Missoula, MT 59807
`(406) 531-8133
`publicdefense@gmail.com
`
`Timothy M. Bechtold
`BECHTOLD LAW FIRM, PLLC
`P.O. Box 7051
`Missoula, MT 59807
`(406) 721-1435
`tim@bechtoldlaw.net
`
`Attorneys for Plaintiffs
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
`
`ALLIANCE FOR THE WILD
`ROCKIES,
`
`Plaintiff,
`
`vs.
`
`LEANNE MARTEN, Regional
`Forester of Region One of the U.S.
`Forest Service, UNITED STATES
`FOREST SERVICE, an agency of the
`U.S. Department of Agriculture, and
`UNITED STATES FISH & WILDLIFE
`SERVICE, an agency of the U.S.
`Department of Interior.
`
`Defendants.
`
`CV- 21-
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`
`
`Rebecca K. Smith
`PUBLIC INTEREST DEFENSE CENTER, PC
`P.O. Box 7584
`Missoula, MT 59807
`(406) 531-8133
`publicdefense@gmail.com
`
`Timothy M. Bechtold
`BECHTOLD LAW FIRM, PLLC
`P.O. Box 7051
`Missoula, MT 59807
`(406) 721-1435
`tim@bechtoldlaw.net
`
`Attorneys for Plaintiffs
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
`
`ALLIANCE FOR THE WILD
`ROCKIES,
`
`Plaintiff,
`
`vs.
`
`LEANNE MARTEN, Regional
`Forester of Region One of the U.S.
`Forest Service, UNITED STATES
`FOREST SERVICE, an agency of the
`U.S. Department of Agriculture, and
`UNITED STATES FISH & WILDLIFE
`SERVICE, an agency of the U.S.
`Department of Interior.
`
`Defendants.
`
`CV- 21-
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`
`
`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 2 of 48
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`I. INTRODUCTION
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`1.
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`This is a civil action for judicial review under the Endangered Species Act
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`of the U.S. Forest Service’s (Forest Service) and/or U.S. Fish and Wildlife
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`Service’s (FWS) failure to reinitiate ESA consultation on the Helena-Lewis
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`& Clark National Forest Plan, failure to reinitiate ESA consultation on the
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`Blackfoot Travel Plan, failure to reinitiate ESA consultation on the Divide
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`Travel Plan, failure to initiate or reinitiate ESA consultation on the Elkhorns
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`Travel Plan, failure to initiate or reinitiate ESA consultation on the North
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`Belts Travel Plan, failure to initiate or reinitiate ESA consultation on the
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`South Belts Travel Plan, and failure to reinitiate ESA consultation on the
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`Rocky Mountain Ranger District Travel Plans.
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`2.
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`Defendants’ actions or omissions violate the Endangered Species Act
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`(ESA), 16 U.S.C. §§ 1531 et seq and are arbitrary and capricious, an abuse
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`of discretion, and/or otherwise not in accordance with law.
`
`3.
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`Plaintiff Alliance for the Wild Rockies requests that the Court order the
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`agencies to prepare lawful ESA consultations for plans denoted above.
`
`4.
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`Plaintiff seeks a declaratory judgment, injunctive relief, the award of costs
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`and expenses of suit, including attorney and expert witness fees pursuant to
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`the Endangered Species Act, 16 U.S.C. § 1540(g)(4), and such other relief
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`as this Court deems just and proper.
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`II. JURISDICTION
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`5.
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`This action arises under the laws of the United States and involves the
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`United States as a Defendant. Therefore, this Court has subject matter
`
`jurisdiction over the claims specified in this Complaint pursuant to 28
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`U.S.C. §§ 1331, 1346.
`
`6.
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`An actual controversy exists between Plaintiff and Defendants. Plaintiff’s
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`members use and enjoy the Helena-Lewis and Clark National Forest for
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`hiking, fishing, hunting, camping, photographing scenery and wildlife, and
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`engaging in other vocational, scientific, spiritual, and recreational activities.
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`Plaintiff’s members intend to continue to use and enjoy the area frequently
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`and on an ongoing basis in the future.
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`7.
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`The aesthetic, recreational, scientific, spiritual, and educational interests of
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`Plaintiff’s members have been and will be adversely affected and
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`irreparably injured if Defendants continue to violate the ESA by ignoring
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`and refusing to meaningfully address the impacts of chronic, recurring
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`illegal motorized use on grizzly bears. These are actual, concrete injuries
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`caused by Defendants’ failure to comply with mandatory duties under ESA.
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`The requested relief would redress these injuries and this Court has the
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`authority to grant Plaintiff’s requested relief under 28 U.S.C. §§ 2201 &
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`2202, and 5 U.S.C. §§ 705 & 706.
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`8.
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`Plaintiff submitted a 60 Day Notice of Intent to Sue under the ESA to
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`Defendants over 60 days prior to filing this complaint. Thus, this Court has
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`jurisdiction over Plaintiff’s claims.
`
`III. VENUE
`
`9.
`
`Venue in this case is proper under 28 U.S.C. § 1391(e) and LR 3.3(a)(1).
`
`Defendant Marten resides within the Missoula Division of the United States
`
`District Court for the District of Montana.
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`IV. PARTIES
`
`10.
`
`Plaintiff ALLIANCE FOR THE WILD ROCKIES is a tax-exempt, non-
`
`profit public interest organization dedicated to the protection and
`
`preservation of the native biodiversity of the Northern Rockies Bioregion,
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`its native plant, fish, and animal life, and its naturally functioning
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`ecosystems. Its registered office is located in Missoula, Montana. The
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`Alliance has over 2,000 individual members, many of whom are located in
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`Montana. Members of the Alliance observe, enjoy, and appreciate
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`Montana’s native wildlife, water quality, and terrestrial habitat quality, and
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`expect to continue to do so in the future, including in the Helena-Lewis and
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`Clark National Forest. Alliance’s members’ professional and recreational
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`activities are directly affected by Defendants’ failure to perform their lawful
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`duty to protect and conserve these ecosystems as set forth below. Alliance
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`for the Wild Rockies brings this action on its own behalf and on behalf of
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`its adversely affected members.
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`11. Defendant LEANNE MARTEN is the Regional Forester for the Northern
`
`Region/Region One of the U.S. Forest Service, and in that capacity is
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`charged with ultimate responsibility for ensuring that decisions made at
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`each National Forest in the Northern Region, including the Helena-Lewis
`
`and Clark National Forest, are consistent with applicable laws, regulations,
`
`and official policies and procedures.
`
`12. Defendant UNITED STATES FOREST SERVICE (Forest Service) is an
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`administrative agency within the U.S. Department of Agriculture, and is
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`responsible for the lawful management of our National Forests, including
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`the Helena-Lewis and Clark National Forest.
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`13. Defendant UNITED STATES FISH AND WILDLIFE SERVICE (FWS) is
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`an administrative agency within the U.S. Department of Interior, and is
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`responsible for the lawful management of species listed under the
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`Endangered Species Act.
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`V. FACTUAL ALLEGATIONS
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`A. GRIZZLY BEARS & ROADS
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`14.
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`In terms of all of the human uses that affect grizzly bears, FWS has long
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`found: “[r]oads probably pose the most imminent threat to grizzly habitat
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`today []. The management of roads is one of the most powerful tools
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`available to balance the needs of people with the needs of bears.”
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`15. Roads pose a threat to grizzly bears because roads provide humans with
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`access into grizzly bear habitat, which leads to direct bear mortality from
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`accidental shootings and intentional poachings.
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`16. Human access also leads to indirect bear mortality by creating
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`circumstances in which bears become habituated to human food and are
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`later killed by wildlife managers.
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`17. Roads and human access also result in indirect mortality by displacing
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`grizzly bears from good habitat into areas that provide sub-optimal habitat
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`conditions.
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`18. Displacement may have long term effects: “Females who have learned to
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`avoid roads may also teach their cubs to avoid roads. In this way, learned
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`avoidance behavior can persist for several generations of bears before they
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`again utilize habitat associated with closed roads.”
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`19. Grizzly bears are displaced from open and closed roads: “grizzlies avoided
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`roaded areas even where existing roads were officially closed to public use
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`[]. Females with cubs remained primarily in high, rocky, marginal habitat
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`far from roads. Avoidance behavior by bears of illegal vehicular traffic, foot
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`traffic, and/or authorized use behind road closures may account for the lack
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`of use of areas near roads by female grizzly bears in this area. This research
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`demonstrated that a significant portion of the habitat in the study area
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`apparently remained unused by female grizzlies for several years. Since
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`adult females are the most important segment of the population, this lack of
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`use of both open-roaded and closed-roaded areas is significant to the
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`population.”
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`20. Displacement may negatively impact the survival rates of grizzly cubs:
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`“survivorship of the offspring of females that lived in unroaded, high
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`elevation habitat was lower than that recorded in other study areas in the
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`[Northern Continental Divide Ecosystem]. The majority of this mortality
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`was due to natural factors related to the dangers of living in steep, rocky
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`habitats. This is important in that the effects of road avoidance may result
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`not only in higher mortality along roads and in avoidance of and lack of use
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`of the resources along roads, but in the survival of young when their
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`mothers are forced to live in less favorable areas away from roads.”
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`21.
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`The Recovery Plan finds that “[t]imber management programs may
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`negatively affect grizzly bears by (1) removing thermal, resting, and security
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`cover; (2) displacement from habitat during the logging period; and (3)
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`increases in human/ grizzly bear confrontation potential or disturbance
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`factors as a result of road building and management. New roads into
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`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 8 of 48
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`formerly unroaded areas may cause bears to abandon the area.”
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`22.
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`In light of these harms, current peer-reviewed science still finds that roads
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`pose significant threats to grizzly bear survival: “[o]f all the covariates we
`
`examined, the amount of secure habitat and the density of roads in
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`nonsecure habitat on public lands had the greatest effect on grizzly bear
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`survival.”
`
`B.
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`ILLEGAL MOTORIZED USE ON THE FOREST
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`23.
`
` In 2019, Plaintiff requested information from the Forest Service law
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`enforcement division regarding known violations of road restrictions on the
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`Helena - Lewis & Clark National Forest (Forest) over the prior five-year
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`period.
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`24.
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`In particular, Plaintiff is concerned about violations of road restrictions in
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`habitat where threatened grizzly bears may be present.
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`25. According to the U.S. Fish & Wildlife Service, the following mountain
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`ranges within the Helena-Lewis & Clark National Forest are areas where
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`grizzly bears may be present: Rocky Mountain Range, Upper Blackfoot,
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`Divide, Elkhorns, and Big Belts.
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`26.
`
`The Rocky Mountain Range and a portion of the Upper Blackfoot is
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`considered “Primary Conservation Area” for grizzly bears.
`
`27.
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`The remaining portion of the Upper Blackfoot is considered “Management
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`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 9 of 48
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`Zone 1” for grizzly bears.
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`28.
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`The Divide, Elkhorns, and Big Belts are all considered “Management Zone
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`2” for grizzly bears.
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`29.
`
`The map below illustrates these zones:
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`30.
`
`In the areas on the Forest where grizzly bears may be present, the Forest
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`Service’s law enforcement division records demonstrate that, within the
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`five-year period from mid-2014 to mid-2019, there were hundreds of
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`reported violations of road restrictions, including but not limited to the
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`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 10 of 48
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`following:
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`• 142 reported violations of road restrictions in the Big Belts,
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`• 60 reported violations of road restrictions in the Divide,
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`• 52 reported violations of road restrictions in the Elkhorns, and
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`• 25 reported violations of road restrictions in the Rocky Mountain
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`Range.
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`31.
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` In addition, it is unknown how many other violations occurred that were
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`either not witnessed, or witnessed but not reported to law enforcement.
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`32. Recurring violations demonstrate that illegal motorized use is a chronic
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`problem on the Forest in areas where grizzly bears may be present.
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`33. Although the law enforcement division of the Forest Service possesses
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`records of recurring illegal motorized use, these records are generated as a
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`part of law enforcement observations or reports to law enforcement, and
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`there is no record of regular transmission of these records or data from the
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`law enforcement division to the management divisions of the Forest
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`Service.
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`34. Additionally, there is no record of Forest Service management divisions
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`regularly requesting records of illegal motorized use from the law
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`enforcement division.
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`35. Accordingly, Forest Service management divisions do not have any regular
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`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 11 of 48
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`reports that disclose the details of law enforcement reports of illegal
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`motorized use on the Forest, quantify the number of miles of additional
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`motorized use that these hundreds of violations represent, or analyze how
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`the illegal motorized use affects or may affect grizzly bears.
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`36. Because the Forest Service has not quantified recurring illegal motorized
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`use, road density calculations created by the Forest Service management
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`divisions in management analysis and decision documents do not include
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`recurring illegal motorized use in either “open” or “total” road calculations;
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`the calculations also do not exclude these areas from secure habitat
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`calculations.
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`37. By excluding known and recurring illegal motorized use from road density
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`calculations as a matter of course, the Forest Service is significantly
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`underestimating both the amount of motorized use on the Forest, and the
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`actual effects of motorized use on the Forest on grizzly bears.
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`C. FOREST PLAN CONSULTATION – 2014
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`38.
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`The 2014 Biological Opinion/Incidental Take Statement for the Forest Plan
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`limits new permanent roads to 5 miles and new temporary roads to 30 miles,
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`but it assumes that “temporary roads would be effectively closed upon
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`project completion.” It also assumes that the Forest is closed “to off-route
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`wheeled motorized travel . . . .”
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`39. Both assumptions have proven false.
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`40.
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`In its response to Plaintiff’s 60-day notice of intent to sue, the Forest
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`Service concedes: “On occasion, there has been trespass around gates onto
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`temporary roads generally after hours when workers are not on site (pers
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`comm sale administrators).”
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`41.
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`In its response to Plaintiff’s 60-day notice of intent to sue, the Forest
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`Service states: “it is not practical or possible to install fence along the entire
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`motorized route system on the Forest in order to prevent off route driving.”
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`42.
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`The recurring illegal motorized use off-route and/or on temporary roads that
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`are not effectively closed likely amounts to a number of de facto roads that
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`exceed both of these mileage caps.
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`43.
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`The Incidental Take Statement states that “[i]f increases in permanent road
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`construction exceed 5 miles over the next 10 years, then the level of
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`incidental take we anticipated in our first surrogate measure of take would
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`be exceeded and therefore the level of take exempted would be exceeded.”
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`44.
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`The Incidental Take Statement further states: “If more than 30 miles of
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`temporary motorized routes are constructed over the next 10 years, then the
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`level of incidental take we anticipated in our second surrogate measure of
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`take would be exceeded and the level of take exempted would be
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`exceeded.”
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`45.
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`The Incidental Take Statement states: “Under CFR 402.16 (1), in either of
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`these scenarios, reinitiation of consultation would be required.”
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`46.
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`There is only one mechanism set forth in the Incidental Take Statement to
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`monitor compliance with these conditions: “The Forest shall maintain an
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`up-to-date record of location and length of new permanent and temporary
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`roads constructed and roads decommissioned on the Divide Landscape. The
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`status of these roads (i.e. open or restricted) and presence of signage, barrier
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`or closure device, if applicable, shall also be described. The Forest shall
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`complete a report with this information and submit it to the Service’s
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`Montana Field Office by June 1 of each year for the preceding calendar
`
`year.”
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`47. On December 27, 2019, Plaintiff sent a FOIA request to the Forest Service
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`for “[a]nnual monitoring reports required by the 2014 Forest Plan Biological
`
`Opinion on grizzly bears (2014- present)[].”
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`48.
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`The FOIA response from the Forest Service did not contain the required
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`monitoring reports.
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`49.
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`In response to Plaintiff’s subsequent ESA 60-day notice, the Forest Service
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`stated on May 22, 2020 that it was “preparing a monitoring report
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`consolidating all of the reporting requirements from 2014 through 2019.”
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`50.
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`In other words, prior to the 60-day notice of intent to sue, the Forest Service
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`12
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`had made no effort to comply with its binding monitoring report
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`requirement.
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`51.
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` The Forest Service provided no explanation for its refusal to comply with
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`the binding annual monitoring report requirement prior to the threat of
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`litigation.
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`52.
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`In its response to Plaintiff’s 60-day notice of intent to sue, the Forest
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`Service concedes that there is “recurring illegal road use” in at least “a few
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`locations.”
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`53.
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`In its response to Plaintiff’s 60-day notice of intent to sue, the Forest
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`Service failed to provide any documentation in which the agency has
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`analyzed the effects on grizzly bears from recurring illegal motorized use.
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`54.
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`In its response to Plaintiff’s 60-day notice of intent to sue, the Forest
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`Service argued: “Illegal road use is not an authorized agency action
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`therefore consultation will not be re-initiated relative to the continued
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`implementation of the HNF Forest Plan. However, the effects of this use are
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`being considered as part of the environmental baseline through the Forest
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`Plan revision consultation process.”
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`D. BLACKFOOT TRAVEL PLAN CONSULTATION
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`55.
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`The Incidental Take Statement for the Blackfoot Travel Plan states: “we
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`anticipate incidental take within the Red Mountain and Arrastra Mountain
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`subunits within the recovery zone and areas of high road density outside of
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`the recovery zone. We use the existing levels of access management and the
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`levels that will result from implementation of the Travel Plan as our
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`surrogate measures of incidental take. These include OMRD, TMRD, and
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`core within the Red Mountain subunit, TMRD within the Arrastra Mountain
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`subunit, and open motorized linear route densities and mileage outside of
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`the recovery zone.”
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`56.
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`The Incidental Take Statement for the Blackfoot Travel Plan includes two
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`tables that set forth these road densities (Table 4 and Table 5):
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`57.
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` The Incidental Take Statement for the Blackfoot Travel Plan states: “once
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`access conditions are improved by projects, those conditions must be
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`maintained or improved, or the amount of take we anticipate over time
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`would be exceeded.”
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`58.
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`The Incidental Take Statement for the Blackfoot Travel Plan mandates: “if
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`permanent changes depart in a negative manner from conditions we describe
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`above in the surrogate measures, over the life of the Travel Plan, then the
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`level of incidental take we anticipated in our surrogate measures of take
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`would be exceeded and therefore the level of take exempted would be
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`exceeded.”
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`59.
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`The Incidental Take Statement for the Blackfoot Travel Plan mandates:
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`“Under C.F.R. § 402.16 (1), in any one of these scenarios, reinitiation of
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`consultation would be required.”
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`60.
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`The Incidental Take Statement for the Blackfoot Travel Plan requires the
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`following non-discretionary measures: “[t]he Forest shall assure that
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`restricted roads are effectively restricted and are not being used by wheeled
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`motorized vehicles upon route closure” and “[t]he Forest shall assure that
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`closed routes used for administrative purposes are gated to the public and
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`use is limited to Forest personnel, permittees, or contractors.”
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`61.
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`There is one mechanism to monitor compliance: “the Forest shall complete a
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`report with the information listed below and submit it to the Service’s
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`Montana Field Office by March 1 of each year for the preceding calendar
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`year. The report shall include: a. Location and length of routes constructed,
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`restricted, and decommissioned within the action area; b. The status of these
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`routes (i.e. open or restricted) and presence of signage, barrier or closure
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`device, if applicable, shall also be described; c. OMRD, TMRD, and core
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`for the Red Mountain and Arrastra Mountain subunits in the recovery zone;
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`and d. Miles of open routes and linear open route density for the action area
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`outside of the recovery zone.”
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`62. On December 27, 2019, Plaintiff sent a FOIA request to the Forest Service
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`for “[a]nnual monitoring reports required by the 2016 Blackfoot Travel Plan
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`Biological Opinion on grizzly bears (2016 to present)[].”
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`63.
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`The FOIA response from the Forest Service did not contain the required
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`monitoring reports.
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`64.
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`In response to Plaintiff’s subsequent ESA 60-day notice, the Forest Service
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`stated on May 22, 2020 that it was “preparing a monitoring report
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`consolidating all of the reporting requirements from 2016 through 2019.”
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`65.
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`In other words, prior to the 60-day notice of intent to sue, the Forest Service
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`had made no effort to comply with its binding monitoring report
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`requirement.
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`66.
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` The Forest Service provided no explanation for its refusal to comply with
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`the binding annual monitoring report requirement prior to the threat of
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`litigation.
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`67.
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`Plaintiff subsequently sent a FOIA request to the Forest Service for the
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`promised “consolidated” monitoring report.
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`68.
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`The report discloses that 38 miles of roads that must be restricted, i.e.
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`“closed,” currently have no closure device in place. The location of these
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`de facto open roads is not disclosed, and not possible to discern from the
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`report.
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`69.
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`The report also discloses that 118 miles of roads that must be
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`decommissioned have not yet been decommissioned. The location of these
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`118 miles of open roads is not disclosed and is not discernible from the
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`report. However, the map in the report does show that no roads have been
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`decommissioned in the Arrastra Mountain grizzly bear subunit.
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`70. Moreover, regarding roads that were decommissioned, the mechanism used,
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`i.e. what type of barrier – if any – was put into place to permanently prevent
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`all motorized use, is not disclosed in the report.
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`71. Regarding OMRD, TMRD, and core for the Red Mountain and Arrastra
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`Mountain subunits, the only information provided in the report appears to
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`compare three different methods of measurements, as opposed to one
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`method of measurement taken each year. Table 4 compares (1) the 2016
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`Incidental Take Statement measurement to (2) an “adjusted” type of
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`measurement, presumably from 2016 although it is unspecified, to (3) a
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`measurement taken for a completely different purpose – a monitoring
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`requirement for the NCDE forest plan amendment. In other words, the
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`report compares apples to oranges to bananas instead of providing data for
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`apples in 2016, 2017, 2018, and 2019 as required by the Incidental Take
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`Statement in order to determine whether there was an unlawful increase in
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`roads.
`
`72.
`
`In particular, the report’s representations regarding the Arrastra subunit are
`
`troubling. The report represents that total motorized route density was 21%
`
`in the “2016 Biological Opinion,” and then 17% in the “adjusted”
`
`calculation, and then 18% in the “Draft 2019 Report.” However, as noted
`
`above, zero roads have been decommissioned in the Arrastra subunit so the
`
`total motorized route density percentage has not changed from the 21%
`
`figure set forth as the existing condition in the Blackfoot Travel Plan
`
`Incidental Take Statement.
`
`73. Regarding miles of open routes and linear open route density for the action
`
`area outside of the recovery zone, the report simply ignores this requirement
`
`altogether, and without explanation, provides no information.
`
`18
`
`
`
`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 20 of 48
`
`74.
`
`Finally, in response to Plaintiff’s notification that the Forest Service is
`
`violating the requirement that it “shall assure that restricted roads are
`
`effectively restricted and are not being used by wheeled motorized vehicles
`
`upon route closure” and “shall assure that closed routes used for
`
`administrative purposes are gated to the public and use is limited to Forest
`
`personnel, permittees, or contractors,” in the 60-day notice response, the
`
`Forest Service acknowledges the data presented by Plaintiff from the law
`
`enforcement division, and categorizes it as follows:
`
`Some of these violations involve damage to gates or locks;
`most involve skirting closures or simply driving off road. When
`gates are breached through cut locks or gate destruction, the
`Forest remedies the situation through repair or replacement as
`soon as possible after being made aware of the violation.
`Skirting gates often occurs in open country where little to no
`obstructions exist on either side of the gated road. In these
`situations, the Forest has built fence or placed boulders
`alongside the gate to discourage this type of use. It's not
`practical or possible to install fence along the entire motorized
`route system on the Forest in order to prevent off route driving.
`. . .
`The violation data presented in Appendix A does not
`indicate recurring illegal road use except in a few locations.
`
`75.
`
`In its response to Plaintiff’s 60-day notice of intent to sue, the Forest
`
`Service failed to provide any documentation in which the agency has
`
`analyzed the effects on grizzly bears from admitted “recurring illegal road
`
`use.”
`
`19
`
`
`
`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 21 of 48
`
`76.
`
`In its response to Plaintiff’s 60-day notice of intent to sue, the Forest
`
`Service argued: “illegal road use is not an authorized agency action
`
`therefore consultation will not be re-initiated for the Blackfoot Non-Winter
`
`Travel Plan. However, the effects of this use on grizzly bears are being
`
`considered as part of the environmental baseline through the Forest Plan
`
`revision consultation process.”
`
`E. DIVIDE TRAVEL PLAN CONSULTATION
`
`77.
`
`The Biological Opinion/Incidental Take Statement for the Divide Travel
`
`Plan requires: “if over the life of the Divide Travel Plan permanent
`
`increases in linear open route density depart from conditions we describe
`
`here and in Table 6, then the level of incidental take we anticipate in our
`
`surrogate measures of incidental take would be exceeded and therefore the
`
`level of take exempted would be exceeded. Under CFR 402.16 (1), in this
`
`scenario, reinitiation of consultation would be required.”
`
`78.
`
`Table 6 of the Incidental Take Statement is set forth below:
`
`20
`
`
`
`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 22 of 48
`
`79.
`
`The Incidental Take Statement requires the following non-discretionary
`
`measures: “The Forest shall assure that restricted roads are effectively
`
`restricted and are not being used by wheeled motorized vehicles upon route
`
`closure” and “The Forest shall assure that closed routes used for
`
`administrative purposes are gated to the public and use is limited to Forest
`
`personnel, permittees, or contractors.”
`
`80.
`
`There is one mechanism provided to ensure compliance with the Incidental
`
`Take Statement: “the Forest shall complete a report with the information
`
`listed below and submit it to the Service's Montana Field Office by June 1
`
`of each year for the preceding calendar year. The report shall include: a.
`
`Location and length of routes constructed, restricted, and decommissioned
`
`within the action area; b. The status of these routes (i.e. open or restricted)
`
`and presence of signage, barrier or closure device, if applicable, shall also
`
`be described; c. Linear open route density by elk herd unit for the area
`
`within the Forest boundary.”
`
`81.
`
`In light of this binding requirement, on December 27, 2019, Alliance filed a
`
`FOIA request for "[a]nnual monitoring reports required by the 2016 Divide
`
`Travel Plan Biological Opinion on grizzly bears (2016 to present)[].”
`
`82.
`
`The FOIA response from the Forest Service did not contain the required
`
`monitoring report.
`
`21
`
`
`
`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 23 of 48
`
`83.
`
`In response to Plaintiff’s subsequent ESA 60-day notice, the Forest Service
`
`stated on May 22, 2020 that it was “preparing a monitoring report
`
`consolidating all of the reporting requirements from 2016 through 2019.”
`
`84.
`
`In other words, prior to the 60-day notice of intent to sue, the Forest Service
`
`had made no effort to comply with its binding monitoring report
`
`requirement.
`
`85.
`
` The Forest Service provided no explanation for its refusal to comply with
`
`the binding annual monitoring report requirement prior to the threat of
`
`litigation.
`
`86.
`
`Plaintiff subsequently sent a FOIA request to the Forest Service for the
`
`promised “consolidated” monitoring report.
`
`87.
`
`The report discloses that 76 miles of roads that must be restricted, i.e.
`
`“closed,” currently have no closure device in place: “there are still
`
`approximately 76 miles of closed roads (yearlong or seasonal) for which an
`
`effective closure has yet to be installed.” However, the location of these de
`
`facto open roads is not disclosed.
`
`88. Additionally, the report represents that only 35.5 miles of road have been
`
`decommissioned since implementation of the Divide Travel Plan, although
`
`NEPA decisions require decommissioning of 168.7 miles of roads.
`
`89. Moreover, regarding decommissioned roads, the mechanism used, i.e. what
`
`22
`
`
`
`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 24 of 48
`
`type of barrier – if any – was put into place to permanently prevent all
`
`motorized use, is not disclosed in the report.
`
`90.
`
`The report also indicates that none of the affected Elk Herd Units (Little
`
`Prickly Pear – Ophir Creek, Greenhorn Mountain, Spotted Dog – Little
`
`Blackfoot, Jericho Mountain, Black Mountain – Brooklyn Bridge, or Quartz
`
`Creek) yet comply with the linear open road density set by the Divide
`
`Travel Plan.
`
`91.
`
`Finally, in response to Plaintiff’s notification that the Forest Service is
`
`violating the requirement that it “shall assure that restricted roads are
`
`effectively restricted and are not being used by wheeled motorized vehicles
`
`upon route closure” and “shall assure that closed routes used for
`
`administrative purposes are gated to the public and use is limited to Forest
`
`personnel, permittees, or contractors,” in the 60-day notice response, the
`
`Forest Service acknowledges the data presented by Plaintiff from the law
`
`enforcement division, and categorizes it as follows:
`
`Some of these violations involve damage to gates or locks;
`most involve skirting closures or simply driving off road. When
`gates are breached through cut locks or gate destruction, the
`Forest remedies the situation through repair or replacement as
`soon as possible after being made aware of the violation.
`Skirting gates often occurs in open country where little to no
`obstructions exist on either side of the gated road. In these
`situations, the Forest has built fence or placed boulders
`alongside the gate to discourage this type of use. It's not
`practical or possible to install fence along the entire motorized
`
`23
`
`
`
`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 25 of 48
`
`route system on the Forest in order to prevent off route driving.
`. . .
`The violation data presented in Appendix A does not indicate
`recurring illegal road use except in a few locations.
`
`92. Contrary to this boilerplate argument that illegal use is only recurring in a
`
`“few locations,” the maps tell a dramatically different story of excessive
`
`illegal motorized use in the Divide area. Below, the map on the left shows
`
`the locations of barriers and gates; the map on the right shows the location
`
`of reported road violations:
`
`24
`
`
`
`Case 9:21-cv-00005-DLC Document 1 Filed 01/08/21 Page 26 of 48
`
`93.
`
`In its response to Plaintiff’s 60-day notice of intent to sue, the Forest
`
`Service failed to provide any documentation in which the agency has
`
`analyzed the effects on grizzly bears from admitted “recurring illegal road
`
`use.”
`
`94.
`
`In its response to Plaintiff’s 60-day notice
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