Judge Gets it Wrong on Little Belts

Today Judge Haddon ruled in favor of motorized groups that challenged the Little Belt Travel Plan on the Lewis & Clark National Forest. While this may seem like a successful challenge by the ORVers, Judge Haddon got the facts wrong and ignored briefs from the defendants making it likely that even conservative judges on the 9th Circuit would overturn the decision.

First, Judge Haddon asserts that the final decision was so different from the alternatives in the draft environmental impact statement that people did not have the opportunity to comment. As many of us know, the Forest Service can modify a preferred alternative in the final decision to include mitigation measures that protect natural resources. Those changes have to be substantial enough and relevant to environmental concerns in order to trigger another comment period. So what changed between the Draft EIS and the final decision that was supposedly so egregious?

1) The Forest Service reduced the distance people can ride their machines off either side of a road or trail to set up a campsite from 300 ft to 70 ft (essentially the length of a trailer). This was to protect vegetation, riparian areas and soils from a 600 ft wide swath of a motorized free-for-all zone.

2) Another change was a reduction in designated routes from 1,397 to 1,366 (31 miles) to mitigate environmental damage. 

3) Finally, Judge Haddon asserts that the final decision changed the snowmobile season from May 15th to May 1st. However, this is just plain wrong. While the date change was analyzed in the EIS, the agency decided against it in the final decision.

Of course, if the Forest Service gave ORVers 31 miles in the final decision and it was not proposed in the Draft EIS, we would challenge as well. So it is understandable that the motorized advocacy groups were upset by the reduced miles. The difference between these situations is that adding miles is not mitigating environmental damage, which the agency can do at its discretion as long as the responsible official provides adequate explanation in the decision.

The other major part of Judge Haddon’s opinion regards the Judith Wilderness Study Area where he asserts that the Forest Service must keep routes open to motorized use if they existed in 1977 when the Wilderness Study Act was signed into law. Of course this ignores the plain language of the statute that directs the agency to “maintain their presently existing wilderness character.” In order to do this the Forest Service has discretion and may decide to close routes and areas to meet the law’s mandates. However, Judge Haddon asserts that the agency does not have this discretion and he ignored Congressional direction that explicitly states, “Nothing in S. 393 will prohibit the use of off-road vehicles, unless the normal Forest Service planning process and travel planning process, which applies to all national forest lands, determines off-road vehicle use to be inappropriate in a given area.”

It is clear that Judge Haddon’s decision will be appealed to the 9th Circuit and its likely this will be a short-lived victory for the ORVers.