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Legal Action Update, October 2008
Roadless Lawsuits (U.S. Districts Wyoming, ND Cal; 9th & 10th Circuits). Fall is bringing a flurry of activity in the various Forest Service Roadless suits. You will recall that Judge Clarence Brimmer in the U.S. District of Wyoming recently issued a decision declaring the 2001 Roadless Rule illegal and enjoining its implementation throughout the National Forest System. Anti-access groups have already appealed that decision to the Tenth Circuit Court of Appeals. The three consolidated appeals in the Ninth Circuit Court of Appeals, including one filed by Cal4-BRC-United-ACSA, have been set for oral argument on October 20, 2008, in San Francisco. These appeals seek review of the district court decision in the Northern District of California, which set aside the 2005 State Petitions Rule and reinstated the 2001 Roadless Rule. The identities of the three judges hearing those appeals will not be disclosed until approximately the week prior to argument. The Forest Service has taken the position that the two district court rulings subject the agency to irreconcilable obligations, and has filed motions in both courts seeking modification of either and/or both injunction(s). That request, along with an opposing motion to stay the case pending resolution of the Ninth Circuit appeals, is set for hearing before the ND Cal. District court on October 17, 2008.
CDCA WEMO-NECO Suit (U.S. Northern District of California). Upon request of the Defendants BLM et al, the Court has agreed to consider supplemental briefing in light of the post-argument Ninth Circuit en banc decision in Lands Council v. McNair. This decision should theoretically support BLM's (and the OHV intervenors') positions defending the WEMO-NECO plans. The matter will again be under advisement with the Court.
Gallatin National Forest (U.S. District of Montana). Oral argument was heard in Missoula on September 11, 2008, on the merits of the consolidated challenges to the 2006 Gallatin Travel Plan. Paul Turcke appeared at the hearing on behalf of the Treasure State Alliance et al intervenors, who challenge Montana Wilderness Association's claims that the plan allowed too much motorized access and have cross-claimed against the Forest Service arguing that the Plan went too far in closing areas within the HPBH WSA near Bozeman. Magistrate Jeremiah Lynch presided at the arguments and indicated his intent to promptly issue his Findings and Recommendation, which, upon objection, would be reviewed by District Judge Donald Molloy.
Tellico National Forest (U.S. Western District of North Carolina). Service has been completed on all Defendants, and Trout Unlimited and other proponents of the motorized travel closures have moved to intervene in the case. Upon resolution of the motion to intervene and filing of Defendants' Answer, the court will likely establish a case management order which will require Defendants to produce an administrative record and the merits of the case to ultimately be presented through cross-motions for summary judgment.
Yellowstone & Grand Teton Park Snowmobile Suits (U.S. Districts of D.C. & Wyoming). The courts and parties have stayed on schedule in presenting the various lawsuits, meaning that oral argument was heard on August 27th in DC and September 15th in Cheyenne. On the morning of September 15, 2008, prior to Judge Brimmer taking the bench to hear argument, Judge Sullivan of the DC district court issued a 63 page opinion declaring the Yellowstone Final Rule unlawful on virtually every ground presented by the anti-access plaintiffs. The DC ruling does not discuss, let alone prescribe, an on-the-ground remedy, but the Park Service has thus far taken the disturbing position that the temporary rule authorizing snowmobile use for the previous three seasons has expired, and with the new rule being struck down there exists no rule authorizing snowmobile access to the Parks. The ISMA-ACSA-BRC team of course disputes that interpretation, has submitted argument and additional briefing to the Wyoming court to that effect, and continues to evaluate strategies to maintain and enhance sledding opportunities in the Parks within and beyond the existing lawsuits.
Southern California "Four Forests" Suit (U.S. Northern District of California). Defendants produced the administrative record, and the deadline set by the case management plan for objection to or supplementation of the record has passed without action by any party. Private interests led by the Sierra Club and represented by Earthjustice have filed their own challenge to the SoCal Four Forests Plan, which has been deemed a "related case" which will also be heard by Judge Patel. The next likely step in these cases will be to agree to a revised case management plan which will set a briefing schedule for summary judgment cross-motions to present the merits to the Court.
Clear Creek Management Area (California). The BlueRibbon Legal Team, in consultation with top experts, continues to carefully dissect and analyze the EPA Report and to evaluate a wide range of strategies in countering that Report and altering BLM's decision to prohibit recreational access to the Clear Creek Management Area.
Little Belts Travel Plan Challenge (U.S. District of Montana). The complaint in this matter was filed on August 29, 2008, and service is being completed upon the Defendants. The case is in its initial stages, with procedural and housekeeping matters on the near-term horizon.
Additional Matters: The BlueRibbon Legal Team has also recently taken action on several projects notable due to their importance in the recreation community and/or likelihood of developing into larger issues, including filing a protest to the BLM Moab Revised Resource Management Plan, and submitting comments to the Shasta-Trinity (CA) National Forest Notice of Intent to prepare an Environmental Impact Statement.