Tellico Update- August 24, 2010
From: Greg Mumm
Executive
Director
BlueRibbon
Coalition
These days, we are often asked
one or both of the following questions, 1) “What is going on with the Tellico
lawsuit?” and 2) Why bother with the fight there when the trails are being
obliterated before the courts can decide anything?”
For those who aren’t familiar
with the issues surrounding Tellico, it’s appropriate to start with a brief
history. Mind you, there is more to
it than what we share here—much more—but that is an emotionally charged
discussion for another time.
For all intent and purpose, the
Forest Service, under outside pressure of a threatened lawsuit, began the
process of closing the trail system in Tellico in late 2007. It began with an emergency closure
order. Following that, and arguably
as a result of pressure from a legal action of our own, the Forest Service
conducted formal planning that predictably resulted in a decision to permanently
close the system and “rehabilitate” most of the trails.
We don’t agree with that
decision. The partnership of
Southern, BRC and United filed an administrative appeal, as did others, all of
which were denied by the appeals deciding officer. Faced with the outcome of either quietly
accepting the decision of the Forest Service to close Tellico or take legal
action, we opted for the latter, and the partner groups filed the necessary 60
day notice of intent to sue under the Clean Water Act.
Ironically, as we did so, the
Forest Service quickly began the process of obliterating the trails. That action on the part of the Forest
Service necessitated the step of the partnership groups formally filing a
separate legal action in May of 2010.
Cases like this are not simple to
litigate. Nor are they quick. In fact, the proposed litigation
schedule on the current case stretches into mid-July of 2011. Meantime, through their contractor, the
Forest Service is continuing to obliterate the trails and the bottom line is
there are only two ways to get a quicker answer from the courts: 1) a
preliminary injunction, or 2) seek a solution through mediation. We debated both options and, under the
advice of legal counsel, the partner groups decided to seek a solution through
mediation, and with good reason.
Contrary to what many assert,
obtaining an injunction is very challenging to achieve. The courts give broad deference to
agency actions as long as the agency isn’t acting irrationally.
Many would rightly argue that it
is the lack of rational thought in all of the Forest Service actions in Tellico
that is at the core of the whole issue here. However, it is another thing altogether
to convince a federal judge that, under the law, the recreation groups have or
will suffer “irreparable harm.”
Especially since the counter argument is simply that anything being done
in Tellico now can just as easily be undone later should the judge ultimately
rule in our favor.
On the other hand, choosing the
mediation route, as we have, allows for “out of the box” solutions to come into
play, and the potential for long-term solutions is only limited by the resolve
and the creativity brought to the table.
If no solution is reached, mediation also leaves the door open to put it
back in the hands of the judge to decide on the merits of the case.
So, the answer to the first
question is that we are going to mediation, the first session of which is
scheduled for mid-September.
Which brings up the second
question regarding what is there to gain through mediation or the lawsuit in
Tellico, particularly once “all the trails are gone.” The fact is there is not only much to be
gained, but so much more to avoid losing.
There are three primary goals
that we have always had and will continue to have for the Tellico legal
action:
1)
Turn the corner on advocacy encouraging the Forest Service to
manage FOR this type of recreation instead of FROM it
2)
Establish meaningful and well managed trails in Tellico and beyond
3)
Ensure confidence in the validity of the public process and agency
partnerships
What is happening in Tellico
won’t stay in Tellico. Frankly, we
have seen this ongoing saga everywhere across the country. If we don’t draw the line here, what is
going to happen with the next planning process… and the one after that? Whether you want to define it as the
Agency lacking the necessary skill-sets to manage for recreation, or whether you
want to call it a fear of being sued by the extreme anti-access crowd, or even
just a negative OHV attitude, something has to change or we are going to
continue to be steamrolled into oblivion.
It is time to send a very clear message that the Forest Service can no
longer play “dumb” and ignore their Congressional mandate to take an active role
in managing for recreation.
Yes, we are hopeful of
re-establishing meaningful and sustainable, vehicle-based, trails in Tellico
and/or other areas of the Nantahala National Forest. More importantly, this case has broader
national implications. There is no
question that recreational access is under attack. Issues like Tellico provide an
opportunity to demonstrate the resolve, effectiveness, and creativity of our
advocacy effort.
We need your continued support
and ask that you not listen to those who throw up their arms and walk away
saying, “What’s the point? The
Forest Service is going to do whatever they want anyway.” We cannot give up. Please donate to Rescue Tellico today to
help protect the trails where you are.
You can give that tax deductible donation quickly and securely online at
http://www.sharetrails.org/rescue-tellico -
BRC Life Member