Gallatin National Forest 9^th Circuit Appeal Decision,

The 9^th Circuit of Appeals issued their opinion on December 1, 2011 in regards to our appeal of Judge Molloy’s ruling on the Gallatin National Forest Travel Plan. Prior to this December 1^st  ruling  the 9^th Circuit requested all parties to meet and attempt to mediate the issue. The 9^th Circuit provided a professional mediator though the court and CBU, through our attorney, participated in the mediation meetings.

 CBU is committed to keeping those uses that were in place and allowed in 1977 to remain. We believe this issue will be settled at some point in time but nothing was accomplished during the mediation meetings and all parties decided to let the court make their decision.

The 9^th Circuit was then charged with making a decision which was rendered on December 1, 2011. Judge Fisher wrote in his opinion that the Forest Service failed to address 1502.22 (b)(2) of the Administrative Procedures Act and NEPA. 1502.22 (b)(2) directs the Agency “ to provide a statement of relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse effects on the human environment”. The Forest Service claimed in the Travel Plan DEIS and FEIS that no historic use data was available and therefore did not need to be considered. The court disagreed.

CBU provided the Forest Service with a substantial amount of historic use data during the comment period of the DEIS but this information was ignored. When the Forest Service was questioned by CBU as to why our information on historic use was not considered or used, their response was that “they did not know what to do with it”. Clearly our historic information was important to our continued use of the WSA but under Forest Supervisor Becki Heath, and her closure agenda team at that time, they were not interested in historic use of the WSA. Their decision to ignore our historic use documentation was a mistake and the courts have centered on this issue in their rulings.

The decision by Judge Molloy in the original case provided direction to the Forest Service to close additional areas to motorized and mechanized use to protect the “Wilderness Character”. The 9^th Circuit disagreed with Judge Molloy and his reasoning by writing the following opinion.

“We do not necessarily agree with the district court, for example, that the only way (the service’s) decision can survive the arbitrary and capricious standard of review is to substantially reduce the overall area for vehicle use or to reduce overall motorized and mechanized vehicle access. Although the Service might reasonably compensate for an increase in the volume of motorized use by reducing the overall area of impact, we do not assume that this is the only proper response to the increased volume of use when relevant data are scarce. We do assume there may be other reasonable management responses to the problem the Service faces.”

This statement in the court’s opinion supports our additional litigation which is continuing in Judge Hayden’s court. We challenged the additional closure of the WSA through the Interim Order issued for the last three years by GNF Supervisor Mary Erickson. Her Interim Order closed additional area in the WSA to winter motorized use. During the mediation talks CBU requested a stay in our action on the Winter Interim Closure case in front of Judge Haddon until such time as the mediation was either successful or a failure.  When the mediation talks broke down CBU asked Judge Haddon to again consider our case.

We expect a ruling on our Interim Closure case from Judge Hayden in the near future. As for where we go next on the 9^th Circuit ruling, it looks like the Forest Service will need to start the Travel Planning process all over again. We should again have the opportunity to comment on the Forest Service’s new proposal and submit additional historic use data in this area prior to 1977. We ask everyone to dig through your old photos and talk to folks that used this area. Gather signed affidavits and statements of use of the HPBH WSA prior to 1977 and provide this information to CBU. We have historic use information which we will again submit to the Forest Service but any additional information we can provide will help in our fight.

CBU will continue our efforts in preserving historic use of the HPBH WSA and on a different front we are also working with Representative Rehberg and his cosponsoring of HR 1581, the Wilderness and Roadless Area Release Act introduced by Representative McCarthy from California. If this bill were to pass it would release the HPBH back to multiple uses. This is something that should have been done years ago and our members and supporters can help us by contacting Representative Rehberg to express your support for HR 1581.

Sincerely

Kerry White

Executive Board member

CBU

Memorial Ride for Steve Green

Steve was a board member of CBU and a great advocate Multiple Use recreation.

 May he enjoy unlimited powder and sunny days!

Badger-Two Medicine Travel Plan judgement

Judge Haddon’s court denied Multiple Use users request of throwing out the BTM travel plan that restricted 99% of roads and trails leaving 8 miles for Multiple Use in the summer and a closure to all snowmobiling, Though disappointed with the ruling, CBU legal and plaintiffs in this case will be reviewing options in the next couple of weeks.

BTM 99-Memorandum and Order

BTM 100-Judgment in a Civil Case