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Friends of Crazy Mountains v. Erickson

United States District Court, D. Montana, Billings Division

July 29, 2019

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,
v.
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.

          ORDER

          SUSAN P. WATTERS United States District Judge.

         Before 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.

         I. Background

         This is 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.

         On the 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).

         Also in 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).

         After 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).

         The EA 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).

         The EA 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).

         The 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).

         In 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).

         After 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).

         In 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).

         During 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.

         In 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 ...


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