By Katy Nesbitt knesbitt@lagrandeobserver.com

 

The La Grande Observer
 
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The Ninth Circuit Court has ruled in favor of the U.S. Forest Service in a seven-year-old lawsuit regarding the Lord Flat Trail in the Hells Canyon National Recreation Area.

 

Hells Canyon Preservation Council (HCPC) filed suit claiming the Lord Flat Trail was in the Hells Canyon Wilderness, a roadless area.

 

HCPC alleged that the Forest Service violated the Hells Canyon National Recreation Area Act by failing to maintain the original version of the congressional map depicting the boundaries of the Hells Canyon Wilderness Area; defined the wilderness boundary in a way that was arbitrary and capricious; and violated the Wilderness Act by allowing motorized use on the Lord Flat trail.

 

HCPC claimed the trail is situated within the wilderness. District court held that all of the councils claims were barred by the statute of limitations.

 

This was an appeal, so the decision boils down to whether the District Court got it right when it found the case should have been brought back in the 1980s after the agency published its boundary description for the Hells Canyon Wilderness, said Brian Brownscombe, attorney for HCPC. The most important thing to note is that there has never been a judicial decision on the merits of the question of whether the Forest Services allowance of motorized use on the Lord Flat trail is actually within the wilderness boundary.

 

Every decision in this multi-year litigation process, including this one, has hinged on interpretations of somewhat arcane doctrines of legal procedure, standing and statute of limitations, not the merits of HCPC's claim. This decision basically says that nobody can compel a court to review whether motorized use is occurring within the wilderness, because the time to do so would have been in the 1980s, not whether the Forest Services contention that the trail is located outside the wilderness boundary is actually correct.

 

Mary DeAguero, ranger for the Eagle Cap District and Hells Canyon NRA, said the dispute arose because the Hells Canyon Wilderness boundary description prepared by the Forest Service in 1981 does not reference the location of the boundary with respect to the existing trail.

 

The trail was constructed in 1960 to contain the Pony Bar Fire on the east side of Summit Ridge and to provide motorized access to the landing strip at Lord Flat. The Hells Canyon Wilderness was designated in 1978. 

 

During the litigation, HCPC suggested that portions of the trail occurred within the wilderness and thus the trail should be closed to motorized use. The Forest Service responded that the boundary description intended to exclude the trail and thus the trail should remain open to motorized use.

 

In July 2003, DeAguero said, the Forest Service issued, through the HCNRA Comprehensive Management Plan, its most recent decision on how the Lord Flat trail will be managed.

 

From Warnock Corral to the trails termination at Lord Flat, the trail is to be managed as open to motorized travel except during the big-game hunting seasons.

 

The motorized closure period starts three days prior to archery season and ends with the antlerless elk season. The closure was adopted to protect Rocky Mountain elk from displacement from important plateau habitat bisected by the trail.

 

Since 1992, HCPC has asserted that the Lord Flat trail is partially within Hells Canyon Wilderness and should be closed to motorized travel.

 

The Forest Service found that a 1.5-mile segment of the trail slightly entered the wilderness boundary. This segment was rerouted a short distance from the old segment and outside of the wilderness, and the trail was then reopened to motorized use.

 

This means, DeAguero said, the 1.5-mile section in dispute is indeed outside of the wilderness boundary. In 1994, HCPC filed suit on this decision to reroute and reopen the trail, but the District Court of Oregon ruled in favor of the Forest Service actions.

 

The trail is currently inaccessible to motorized use because of snow conditions.  The access road ( Forest Road 4240) to the Lord Flat Trail is opened each year when dry ground conditions are present, normally in June.

 

In 2004, HCPC again brought suit against the Forest Service for allowing motorized vehicles to continue using the trail. Through a series of arguments about standing and statutes of limitations, the District Court of Oregon -- and then the Ninth Circuit Court of Appeals on January 25 -- found that Plaintiffs do not have standing on a claim that a copy of a map of the wilderness boundary was insufficient for the original map.

 

The statute of limitations for issues regarding the wilderness boundary description expired six years after 1981, when notice of the boundary description was published in the Federal Register.

 

A claim that the Forest Service has violated the Wilderness Act by failing to close the trail to motorized use was found to be not sufficiently stated.

 

If any part of the Lord Flat trail is within the Hells Canyon Wilderness, as HCPC has claimed, the Forest Service is clearly violating the law by not closing it, HCPC Director Greg Dyson said. A lawsuit shouldnt have been necessary on this issue. Were disappointed to lose this case on a technicality, of course, but we are more disappointed that, after all these years, the underlying issue is unresolved.

 

We still expect the Forest Service to do the right thing and close any portion of the Lord Flat road thats within the Hells Canyon Wilderness.

 

Dyson said HCPC has the second best record of any group in the U.S. in litigation against the Forest Service.

 

Its a tool we use very sparingly and only in extreme cases, when we feel the legal violations are very clear and the issue is important enough to warrant its use, he said.

 

Copyright 2010, The La Grande Observer.

 

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