United States District Court, D. Montana, Billings Division
FRIENDS OF THE CRAZY MOUNTAINS, a public land organization; MONTANA CHAPTER BACKCOUNTRY HUNTERS AND ANGLERS, a non-profit organization; ENHANCING MONTANA'S WILDLIFE AND HABITAT, a public outreach organization; SKYLINE SPORTMEN'S ASSOCIATION, a non-profit organization, Plaintiffs,
MARY ERICKSON, in her official capacity as Forest Supervisor for the Custer Gallatin National Forest; LEANNE MARTEN, in her official capacity as Regional Forester, Region One, for the U.S. Forest Service; VICKI CHRISTIANSEN, in her official capacity as chief of the U.S. Forest Service; THE UNITED STATES FOREST SERVICE, a federal agency; THE UNITED STATES DEPARTMENT OF AGRICULTURE, a federal department, Defendants.
P. WATTERS United States District Judge.
the Court is the Plaintiffs' motion for a preliminary
injunction to enjoin the Defendants from constructing the
Porcupine Ibex Trail. (Doc. 6). For the following reasons,
the motion is denied.
a case about the Forest Service's attempt to resolve a
long running dispute with private landowners over easement
interests on portions of a trail in the Gallatin National
Forest. Since at least 2006, the Forest Service has planned
to solve mis problem by negotiating easements with the
landowners and moving most of the trail onto national forest
land. (Doc. 7-11 at 53). As of now, the Forest Service has
reached tentative easement agreements with the landowners and
is set to begin re-routing the trail onto national forest
land. (Doc. 7-6 at 1). The Plaintiffs are interested
organizations that believe the Forest Service has neither
adequately vetted the environmental impact of the project nor
complied with the Gallatin National Forest's Plan in
rerouting the trail.
west side of the Crazy Mountains in the Gallatin National
Forest are two National Forest System trails, known as the
Porcupine Lowline Trail (No. 267) and the Elk Creek trail
(No. 195). The Porcupine Lowline Trail has been depicted as a
National Forest trail since the early 20th century
and remains so to this day. (Doc. 1). Around 2002, private
landowners began disputing public access on some portions of
the Porcupine Lowline trail, including posting "No
Trespassing" signs. (Doc. 8-38 at ¶ 5).
2002, the Forest Service began the process of creating a
Travel Management Plan for the Gallatin Forest. (Doc. 7-11 at
5). Throughout the process, the Forest Service and private
landowners were negotiating public access on the Porcupine
Lowline Trail. (Doc. 8-38 at ¶ 6). By the time the
Travel Management Plan was complete, a resolution on the
Porcupine Lowline Trail had still not been reached. Private
landowners disputed and appealed the Travel Management
Plan's listing of portions of the Porcupine Lowline Trail
as a National Forest System trail. (Docs. 8-38 at ¶6;
9-6 at 1). The Forest Service admitted written easements
didn't exist for the disputed portions of the Porcupine
Lowline Trail, but its position was that the Forest Service
and public retained an interest in the trail because of
decades of use. (Doc. 9-6 at 1). Due to the access dispute on
the Porcupine Lowline Trail, the Travel Management Plan
stated the Forest Service's intent to "negotiate an
easement for portions of this trail that pass through private
land," and "look for ways to re-route this trail
to get more of it on national forest land." (Doc. 7-11
at 53). The matter remained unresolved and by 2009 had
deteriorated to the point that private landowners erected
barriers across the trail, such as locked gates, to prevent
public access. (Doc. 8-38 at ¶ 7).
the Travel Management Plan was finalized, the Forest Service
began work on proposals for improvement work needed on
certain roads and trails, known as the Road and Trail
Improvement Projects. (Doc. 8-2). In February of 2009, the
Forest Service completed an Environmental Assessment (EA) of
the Road and Trail Improvement Projects. (Doc. 8-2 at 1). One
of the projects analyzed was the relocation of the Porcupine
Lowline Trail. (Doc. 8-2 at 16). The plan was to relocate
portions of the Porcupine Lowline Trail "to correspond
with final rights-of-way" by shifting some portions
"onto National Forest land to the east" because
"[c]urrently, the trail passes through large portions of
private lands with fences, gates, past harvest and road
building and needs to be remarked and reconstructed."
(Doc. 8-2 at 16). The work "would involve about 5.2
miles of new trail construction, 2.6 miles of reconstruction
and 3.0 miles of maintenance." (Doc. 8-2 at 16). The
location of the contemplated work was illustrated on maps
attached to the EA. On the first map, a red oval was drawn
around the area of the contemplated work with the words
"Relocate portions of Porcupine Trail onto final
rights-of-way and NF Lands between these points." (Doc.
8-2 at 210). On the second map, two arrows mark the end
points of the project, next to the words "Relocate
portions of Porcupine Trail onto final rights-of-way between
these points." (Doc. 8-2 at 211).
considered the impact of every project included in the Road
and Trail Improvement Projects proposal, including the
relocation of the Porcupine Lowline Trail. The EA considered
impacts to Biodiversity, Fisheries, General Wildlife, Grizzly
Bear, Invasive Weeds, Lynx, Migratory Birds, Water Quality,
Wolverine, Rare Plants, Sensitive Wildlife Species, and more.
(Doc. 8-2 at 4). For instance, Yellowstone cutthroat trout, a
sensitive aquatic species, were determined to be present in
the Porcupine area but no mitigation was needed other than
existing standards. (Doc. 8-2 at 60-61). The same
determination was made regarding stream crossings and
wetlands. (Doc. 8-2 at 60-61). The Black-backed
Woodpecker's habitat was determined to be impacted but
the Porcupine project was "not expected to have an
adverse effect on distribution or nest success," due in
part to an increase in optimal habitat for the species. (Doc.
8-2 at 168). The foraging and nesting habitat of the
Flammulated Owl was expected to be impacted, but not in a
measurably detrimental way. (Doc. 8-2 at 169).
also included the Forest Service's responses to public
comments received during the scoping period for the Road and
Trail Improvement Projects. At least three people commented
on the relocation of the Porcupine Lowline Trail. The first
comment stated "We support the construction and
reconstruction and maintenance in the Porcupine Area provided
an easement can be obtained or the trail can be relocated. We
do not support the taking of private property rights."
(Doc. 8-2 at 192). The Forest Service responded it intended
"to continue to maintain the route for existing uses as
it has in the past until a relocation resolution agreement
has been reached. Discussions and resolutions with landowners
will start well ahead of any actual construction and will
attempt to balance the needs of the landowner, the public,
and the Forest Service administrative needs." (Doc. 8-2
at 192). The second comment stated "Any new crossings
related to the relocation of the trail should not negatively
impact the streambed and/or banks and should not be a
sediment source. The preferred alternative is a bridge that
spans the stream and its immediate banks." (Doc. 8-2 at
201). The Forest Service responded live stream crossings will
be spanned with bridges that meet or exceed standards. (Doc.
8-2 at 201).
third comment stated, in part, that "Many elements of
several of the proposals (e.g. Porcupine Area) contains
proposals that are the subject of current litigation
(especially concerning private land easement perfection) that
demands they be addressed in a SEIS, not an informal,
non-NEPA document... [t]hese projects clearly need
significant analysis as to cumulative impacts within the
context of the latest CEQ and internal USDA/USFS NEPA
requirements." (Doc. 8-2 at 206). The Forest Service
responded it did "not agree that these road and trail
proposals require supplements of the Travel Plan FEIS. The
appropriate level of NEPA analysis is determined by the
potential for significant impacts of these projects"
(Doc. 8-2 at 207).
April 2009, the Forest Service published its decision notice
regarding the Road and Trail Improvement Projects and also
issued a Finding of No Significant Impact (FONSI). (Doc.
8-3). The decision notice stated the Forest Service would
move forward with the Porcupine Lowline Trail relocation
project. (Doc. 8-3 at 12). The FONSI determined an
Environmental Impact Statement was unnecessary for any of the
proposals in the Road and Trail Improvement Projects because
the EA determined the projects would not have a significant
impact on the quality of the environment. (Doc. 8-3 at 36).
The decision notice also included the Forest Service's
responses to public comments it received on the EA. The
Forest Service received one comment regarding the relocation
of the Porcupine Lowline Trail, which stated "Any new
crossings related to the relocation of the trail should not
negatively impact the streambed and/or banks and should not
be a sediment source. The preferred alternative is a bridge
that spans the stream and its immediate banks. Porcupine and
North Fork Elk Creek have known populations of pure
Yellowstone Cutthroat trout." (Doc. 8-3 at 42). The
Forest Service responded it would use a bridge to cross the
stream and consult a Montana Fish, Wildlife, and Parks
biologist to assure the concern was addressed in the
implementation. (Doc. 8-3 at 42).
publishing its decision notice and FONSI, the Forest Service
began work on the Road and Trail Improvement Projects.
However, work on the Porcupine Lowline Trail languished due
to the unresolved public access dispute. The Forest Service
negotiated back and forth with landowners through 2017, when
there was finally a breakthrough and a tentative easement
agreement was reached. (Doc. 8-38 at ¶¶ 7-10).
March 2018, the Forest Service issued a public scoping notice
period for the Porcupine Lowline Trail relocation, which it
called the Porcupine Ibex Trail. (Doc. 7-1). Later that
month, the Forest Service issued an updated notice which
included a public scoping packet and frequently asked
questions document. (Doc. 7-2). In the updated notice, the
Forest Service stated the Porcupine Ibex Trail would resolve
the public access dispute over the Porcupine Lowline Trail by
securing permanent easements over portions of private land
and constructing roughly eight miles of new trail. (Doc. 7-2
at 1-2). The Forest Service would relinquish interest in the
disputed portions of the Porcupine Lowline Trail and also a
small section of a disputed portion of the Elk Creek Trail,
which would no longer be necessary with construction of the
Porcupine Ibex Trail. (Doc. 7-2 at 2). Additionally, the
Forest Service stated that if it determined, based on
scoping, that it is uncertain whether the project may have a
significant effect on the environment, it would prepare a new
Environmental Assessment for the project. (Doc. 7-2 at 5).
the public scoping period, the Forest Service received over
eighty comments, both positive and negative. (Doc. 7-4). Many
commenters commended the Forest Service for solving a
years-long dispute while preserving public access to national
forest land. Some thought the Forest Service was giving in to
private landowner bullying. Others expressed concern about
the environmental impact of rerouting the trail.
August 2018, the Forest Service issued a notice that after
reviewing the comments during the public scoping, it had
approved work for the Porcupine Ibex Trail. (Doc. 7-6 at 1).
The Forest Service stated it used the public scoping period
to determine if any new significant issues or conditions had
arisen since it completed its EA for the Road and Trail
Improvement Projects that would warrant supplemental
environmental analysis. (Doc. 7-6 at 1). Based on the