Idaho Legal Action Update

| October 13, 2010 | 0 Comments

BLUERIBBON COALITION LEGAL ACTION UPDATE!

IDAHO LEGAL ACTION UPDATE

Dear BRC Action Alert Subscriber,

There is good reason to send this Idaho Legal Action Update Alert. Much is happening in Idaho–some good, some threatening, and all of it potentially affecting your recreational access. 
 
Lawsuits have odd, and sometime very long, life spans. A lawsuit can lay dormant for months and even years, then suddenly jump into action. After months of dormancy, last week saw a flurry of activity on two of Idaho’s key anti-OHV lawsuits, one on the Sawtooth National Forest, the other on the Salmon-Challis National Forest and both with broader implications.

We decided not to include information on yet another lawsuit the greenies filed against the Beaverhead-Deerlodge National Forest (home to Mount Jefferson). Litigation scenarios, as the lawyers put it, are still fluid at this time. We’ll have an update on that important lawsuit soon.

As always, please feel free to call or email if you have any questions or comments.

Brian Hawthorne
Public Lands Policy Director
208-237-1008 ext 102

Ric Foster
Public Lands Department Manager
208-237-1008 ext 107


BRC Idaho Legal Action Update

Sawtooth National Forest
The 2008 travel plan for the Minidoka Ranger District of the Sawtooth National Forest closed many popular ATV routes, single track trails and, sadly, many hundreds of campsites. On August 29, 2008, The Wilderness Society and Prairie Falcon Audubon, Inc. marched into federal court and demanded that the USFS close even more.  The Magic Valley Trail Machine Association, Idaho Recreation Council and BRC moved to intervene.

The Wilderness Society and other plaintiffs successfully opposed our involvement using a rule unique to the 9th Circuit called the “federal defendant rule.”  This rule maintains nonfederal parties do not have any interests that allow them to intervene in defense of government action in environmental suits.  We appealed this decision denying our intervention.

The Recreational Groups, led by Paul Turcke, BRC’s lead counsel, argued their appeal in March this year.  Many have questioned the logic of the “federal defendant rule” including timber interests, counties, contractor and building associations, and even preservation groups.  However, no one has been able to get the 9th Circuit to take a “hard look” at the logic of its rule – until now. 

After argument, the 3-judge panel asked the parties to brief the question of whether the Circuit “should abandon the Federal Defendant Rule.” We did so, and in September, the Chief Judge of the Court signed an order stating a majority of active, nonrecused 9th Circuit judges have voted in favor of hearing the case “en banc” or “full bench.”  This means a twelve-judge panel with the ability to rewrite the law and the Federal Defendant rule will rehear argument from the lawyers for the Recreation Groups and The Wilderness Society.  The en banc hearing will take place in December this year.

In the meantime, the district court case remains pending, as it has since we filed our appeal.  Much to the chagrin of the anti-access forces, you have been able to ride these trails as the legal wrangling continues. 

Salmon Challis National Forest
The Salmon Challis travel plan was years in the making.  Pro-access forces participated, including joint legal review and comments by MIC, SVIA and BRC, with the aid of many state and local clubs.  You probably know the outcome – a final decision that closed hundred of miles of trails. To be specific, the final decision authorized 3,534 total miles of routes for motorized use, where previously at least 6,720 miles of existing routes were recognized. 

You’d think Idaho’s so-called “conservation community” would be pleased by this roughly 47 percent reduction. But it is never enough for Idaho’s formerly moderate (at least compared to other states) Wilderness advocates.  Strong-armed by ideological purists, they filed suit, complaining about the failure to “minimize” OHV impacts, and seeking to create a new weapon out of “subpart A” of the Travel Management Rule which they claim was ignored in the Salmon Challis travel plan.

“Subpart A” is direction in the USFS regulations to minimize its road system. The term “minimize” is to be taken in context with the agency’s mandates, including to provide recreation. Apparently, the Wilderness Society is attempting to have a court define the term “minimize” in their favor, potentially impacting all Forest Service travel plans, everywhere.

BRC and the Idaho Recreation Council (www.id-rc.org/) are participating in the case as a “friend of the court.”  On September 10, 2010, we filed our brief echoing the USFS request that the Court dismiss the Wilderness Society’s claims.  The case is set for argument in Boise in early November.

What does all that legal mumbo jumbo mean to Idaho’s OHVers?
That’s a good question, especially considering the resolution of both of these lawsuits are years away.

In the Sawtooth, the greenies wanted a sweetheart settlement, forcing the Sawtooth to close everything and re-analyze every linear inch BEFORE opening them up again. Our involvement in the Sawtooth means the trails are still open.

In the Salmon-Challis, we are working to prevent the “subpart A” misinterpretation from becoming a weapon of mass destruction to travel management plans everywhere.

That makes these lawsuits extremely important on a totally different level.

Forgive me for doing a bit of shameless self promotion here. Our legal program is a critical element of BRC public lands advocacy and the wider national legal struggle over recreational access to public lands.

Involvement in strategic litigation sets BRC apart. BRC efforts impact “the big picture.”  We now have greater credibility in the courts, with land managers, and other groups. In the Sawtooth intervention case alone, we could potentially make a difference that affects the rights of everyone who seeks a meaningful role in public lands litigation.

BRC’s legal program is creating a lot of discomfort in the well-funded environmentalist litigation machine.  They are slowly realizing that BRC is there every step of the way, countering their misinformation and putting their claims under the legal microscope.

The courtroom is a bad place to solve public lands management issues.  It is precious time and resources that could be more productively spent elsewhere.  But the sad fact is that persistent litigation is a foundation of the anti-access effort and the billion-dollar “environmentalist” money machine.  Maybe someday some conservationists will break ranks with the ideologically aloof benefactors and decide that working on the ground with organized OHV users and land managers is a more satisfactory way to resolve the real issues.

However, that time will not likely be soon, and we have business to complete.  The anti-access litigation machine is nowhere near the redline in Idaho. Other cases loom on the horizon, especially since they’ve not had much success with their Wilderness designation agenda. 

We are penetrating deep into enemy territory on cases like the Sawtooth and Salmon-Challis, but our supply lines are slowing to a dangerous trickle.

We are the kind of people that make things happen, not one those who stand around wondering what happened.   You can help!  Make a generous donation to BRC’s Legal Fund. Simply click HERE and donate via BRC’s secure website. 


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Category: Access Issues, Action Alerts, Midwest - Access Issues

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