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John Stewart

RECREATION GROUPS ARGUE FOR NEW LAW BEFORE NINTH CIRCUIT

The case was originally brought in the U.S. District of Idaho by preservationist organizations who sued the Forest Service seeking greater restrictions on motorized vehicle access to the Minidoka Ranger District of the Sawtooth National Forest.  The Magic Valley Trail Machine Association, the Idaho Recreation Council and BlueRibbon were denied intervention in the case.  The district court ruled, in large part, that intervention was prevented by the "Federal Defendant Rule," unique to the Ninth Circuit, which maintains that since only "the federal defendant" must comply with statutes like the National Environmental Policy Act, only the federal defendant can be a party to a suit alleging noncompliance with such "environmental" laws.

The appeal was initially argued on March 9, 2010, to a three-judge Ninth Circuit panel by Turcke, opposed not by "the federal defendant" but by lawyers with the Western Environmental Law Center.  Rather than issuing a decision, the panel asked for further briefing on the question of whether the Court should convene en banc to consider abandoning the Federal Defendant Rule.  On September 30, 2010, the Court issued an order indicating that a majority of nonrecused active judges on the court voted to hear the appeal en banc.

An en banc proceeding is unusual and is ordered only when necessary to establish or maintain uniformity of prior court decisions or when the proceeding involves a question of great importance.  Under Ninth Circuit rule, an en banc court consists of the Chief Judge of the circuit and ten additional judges drawn by lot from the active judges of the circuit.

After the Court announced it would rehear the case en banc, numerous parties in addition to MIC-SVIA submitted "friend of the court" briefs in support of the recreation groups' position.  They include the Kootenai, Coquille, Kalispel, Shoshone-Bannock and other Indian tribes; Coos, Grant, Harney and Wallowa Counties, Oregon; the State of Alaska; Idaho Governor Otter and Office of Species Conservation; Western Urban Water Coalition; Southern Nevada Water Authority; American Petroleum Institute, Chamber of Commerce of the U.S.A. and National Manufacturers Association; American Forest Resource Council; Public Lands Council and the National Cattlemen's Beef Association; and Safari Club International.

A video recording of this argument is available for public viewing at  http://www.ca9.uscourts.gov/media/view_subpage.php?pk_vid=0000006124.  The status of this and other cases being considered en banc, including the names of individual panel members, can be viewed on the Court's website at http://www.ca9.uscourts.gov/enbanc/.

E&E News Article
LITIGATION: Court to weigh private interests' intervention in NEPA disputes
http://www.sharetrails.org/public_lands/?section=EandE_News_13

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The BlueRibbon Coalition is a national recreation group that champions responsible recreation, and encourages individual environmental stewardship. With members in all 50 states, BRC is focused on building enthusiast involvement with organizational efforts through membership, outreach, education, and collaboration among recreationists. 1-800-BlueRib - www.sharetrails.org

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John Stewart

Stipulation Redirects Six Rivers Energies Toward Collaborative Planning

Don Amador, Western Representative for the BlueRibbon Coalition, states, "We are pleased to see this reaction, which we think validates the ongoing collaborative stakeholder process.  We look forward to release of proposals that will update the motor vehicle use map and encourage all interested recreationists and forest visitors to review and be actively involved in the ongoing administrative process."

The parties bringing the suit are Del Norte County, Lake Earl Grange, Del Norte Rod and Gun Club, North Coast Cliffhangers Four Wheel Drive Club, California Association of Four Wheel Drive Clubs, and the BlueRibbon Coalition.

Link to Stipulation:  http://www.sharetrails.org/uploads/Stipulation_Six_Rivers-Order_Staying_Case.11-30-10.pdf

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The BlueRibbon Coalition is a national recreation group that champions responsible recreation, and encourages individual environmental stewardship. With members in all 50 states, BRC is focused on building enthusiast involvement with organizational efforts through membership, outreach, education, and collaboration among recreationists. 1-800-BlueRib - www.sharetrails.org


 

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John Stewart

Forty One Congressional Leaders Send USFS Letter

BRC's Executive Director, Greg Mumm, applauded the letter. "BRC is pleased to see that the importance of the US Forest Service providing recreation is on the radar of key Congressional leaders. It demonstrates their keen awareness of the economic and social importance recreation has for dependent local communities."

The BlueRibbon Coalition, as well as other recreational stakeholders, has been concerned that the draft proposals emanating from the agency did not adequately address the importance of recreation.  BRC joined with over 70 recreation groups who collectively sent a letter outlining their concerns to the Forest Service earlier this year. 

Noting the reference to "analysis paralysis" in the Congressional Leaders' letter to Chief Tidwell, Mumm also stated, "All recreational users need to be concerned that the US Forest Service doesn't get bogged down with regulatory gridlock."  Current regulations provide multiple levels of seemingly never-ending environmental analysis. BRC's formal comments to the Planning Rule cautioned the agency that regulations about Forest Planning should focus on how to create a Forest Plan and on what level of environmental analysis is appropriate, not on the Forest Plan itself.

BRC also emphasized the need to provide for recreation. According to the National Survey on Recreation and the Environment, the popularity and importance to USFS visitors of off-highway vehicle and snowmobile recreation has drastically increased in recent years. Similar studies reflect the growing popularity of mountain bike and equestrian use. Conversely, the amount of USFS lands available for motorized, mountain bike, and, on some Forests, even equestrian trails, have been reduced via legislation, implementation of Forest Plans and site-specific recreation plans. Therefore, there is a need to emphasize a diverse range of recreation in the planning regulations

The release of a draft Forest Service planning rule has been delayed at least several months, according to an announcement on the agencies planning rule website. Originally, a draft rule and accompanying Draft Environmental Impact Statement were targeted for December with a final in November 2011.

BRC has more information on our website and encourages its members and enthusiasts to subscribe to its email "Action Alert" system for updated information.

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The BlueRibbon Coalition is a national recreation group that champions responsible recreation, and encourages individual environmental stewardship. With members in all 50 states, BRC is focused on building enthusiast involvement with organizational efforts through membership, outreach, education, and collaboration among recreationists. 1-800-BlueRib - www.sharetrails.org

 

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John Stewart

RECREATION GROUPS JOIN IN SUPERIOR FOREST VICTORY

The lawsuit was brought in 2006 by the Sierra Club and other preservation interests, largely contending the Forest failed to sufficiently analyze potential impacts to the Boundary Waters Canoe Wilderness Area.  Those claims were rejected in the U.S. District of Minnesota by District Judge Patrick J. Schiltz, who ruled in favor of the Forest Service and intervenors, concluding the agency had not acted improperly in adopting the broad prescriptions of the Revised Forest Plan.  The appeal was argued on February 9, 2010, and in a decision released October 18, 2010, the Circuit Court affirmed.

"It is reassuring to see an appellate court properly recognize the role of a forest plan and follow established administrative law in deferring to the agency's exercise of discretion," observed Paul Turcke, the Boise, Idaho lawyer who represented the Recreation Groups.  "Opinions about effective recreation management are as diverse as public land visitors, and none of us are entitled to substitute our vision for the agency's so long as it appropriately considered public input and rationally interpreted the record before it," Turcke concluded.

In addition to the Recreation Groups, other parties to the litigation supporting the Forest Service included the Minnesota Department of Natural Resources; Lake County, Minnesota; Minnesota Forest Industries and Minnesota Timber Producers; and the Ruffed Grouse Society.

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The BlueRibbon Coalition is a national recreation group that champions responsible recreation, and encourages individual environmental stewardship. It represents over 10,000 individual members and 1,200 organization and business members, for a combined total of over 600,000 recreationists nationwide. 1-800-258-3742. www.sharetrails.org


 

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John Stewart

BRC Idaho Legal Action Update

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.

Read more from the BlueRibbon Coalition at: http://www.sharetrails.org/public_lands/?section=idaho-legal-update

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