The U.S. Ninth Circuit Court of Appeals has sided with the Forest Service in a five-year-old dispute about its management of a contested trail in the Crazy Mountains.
In a five-page opinion issued last month that was first reported by the Billings Gazette, a three-judge panel affirmed a lower court’s ruling in its finding that the Custer Gallatin National Forest adequately studied the impacts of a trail the agency rerouted to limit public passage through private land in the west side of the Crazies.
The trail in question is the Porcupine Lowline Trail. Landowners opposed to public use of portions of the trail that traverse their land began blocking access to the trail in the early 2000s, creating a difficult situation for Forest Service leadership grappling with the right balance between protecting public access to a trail it had maintained for decades and maintaining its relationships with adjacent landowners.
In a 2009 environmental assessment that accompanied the Custer Gallatin’s Travel Management Plan, the agency floated the idea of relocating portions of the trail located on private land to public land to reduce landowner conflict. In 2018, the agency fleshed out the details of the change and later began building the new trail and obliterating portions of the old trail. The Forest Service also renamed the Porcupine Lowline Trail the Porcupine Ibex Trail.
The project was criticized by recreationists and conservationists concerned about a loss of big-game hunting opportunities and the precedent the Forest Service was setting in abandoning a historic easement, or unrecorded right-of-way. Landowners in the checkerboard-riddled Crazies and a handful of access groups supported the project, arguing that the Forest Service had taken the right tack in working collaboratively with landowners to ease an escalating source of tension in the range.
The Friends of the Crazy Mountains, Backcountry Hunters and Anglers, Enhancing Montana’s Wildlife and Habitat, and Skyline Sportsment’s Association sued to block the project but were unsuccessful in their lawsuit. In 2022, U.S. District Court Judge Susan Watters found that the agency was not abandoning existing access rights, as the plaintiffs contended, because the Forest Service had no valid legal interest in potential easements. She also found that the plaintiffs failed to demonstrate that the agency neglected to take a “hard look” at the environmental impacts of the new route. Since the plaintiffs’ request for a preliminary injunction was unsuccessful, the new trail had been completed by the time Watters issued her order.
The plaintiffs appealed the issue relating to the adequacy of the Forest Service’s environmental review to the Ninth Circuit, which agreed with Watters’ assessment in a short opinion that was unpublished, meaning it won’t be a precedent-setting document that future litigants can cite in their lawsuits.
The judges wrote that the plaintiffs failed to demonstrate that the Forest Service was required to examine the project “with a greater level of granularity” than what was offered in the 2009 environmental assessment. They also disagreed with the plaintiffs’ assertion that their opportunity to challenge the project was limited by the looseness of the agency’s plans.
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“The agency made clear as it prepared the 2009 EA that the trail at issue would be rerouted, and approximated where the new trail would go,” the judges wrote, concluding that the plaintiffs “failed to exhaust their administrative remedies.”
The plaintiffs contend that the ruling misconstrues the agency’s obligations under the National Environmental Policy Act. The Forest Service and groups sensitive to the landowners’ interests say the ruling is a win for agency discretion and collaborative efforts between federal land managers and adjacent landowners.
Western Environmental Law Center attorney Matthew Bishop, who represented the plaintiffs in the initial lawsuit and the appeal, said the panel issued a “really disappointing decision.”
He argued that the plaintiffs would have had to have a “crystal ball” to anticipate and offer meaningful public comment on the easement and trail exchange the Forest Service ultimately pursued.
“Respectfully, I think they got it wrong,” Bishop said.
John Sullivan, chair of the Montana Chapter of Backcountry Hunters and Anglers, said his organization is as “baffled by the court’s decision as we are disappointed.”
“The idea that a vague reference buried in a decades-old travel plan pointing to the aspirational hope of relocating trails somehow satisfies NEPA is inconsistent with any principles of a public agency with which we are familiar,” Sullivan said. “We are pleased the decision is not precedent-setting because this type of decision-making is catastrophic to the public interest.”
Custer Gallatin National Forest spokesperson Marna Daley said in an emailed statement that the ruling protects public access in the range.
“The decision from the Ninth Circuit Court of Appeals helps further ensure long-term, sustainable public access to the west side of the Crazy Mountains on the Porcupine Lowline Trail for generations to come,” Daley said.
The ruling was also cheered by the Pacific Legal Foundation, a nationally renown nonprofit law firm that represented the landowners, the Zimmerman family, in the appeal.
“In a brief but important decision, the Ninth Circuit got it right. The Zimmerman family did everything right by working with the Forest Service,” said Pacific Legal Foundation attorney Paige Gilliard. “The Zimmerman family donated an easement across their private land to provide the public perpetual access to federal lands in the Crazy Mountains. This was a win-win for both private landowners and the public.”
Jonathan Wood, vice president of law and policy for the Property and Environmental Research Center, which filed an amicus brief in support of the Forest Service and landowners, said the lawsuit’s outcome affirms the benefits of collaboration between landowners and agency personnel over litigation.
“The litigation model, from our perspective, is at best win-lose, but it’s often lose-lose: You might win in the short term by saying you’re a party in the case, but even then, the winner sometimes loses in the long-term by eroding goodwill and trust,” Wood said.
Wood said the ruling provides some reassurance to landowners who might otherwise be wary of negotiating easement exchanges and land swaps to address tensions arising from checkerboard ownership patterns. He added that he was pleased that the judges acknowledged that the Forest Service acted well within the bounds of its discretion in negotiating with the landowners.
The Custer Gallatin has made a concerted effort to consolidate checkerboard land in the range in the past decade, finalizing one swap in 2022 and tentatively approving a larger, more complicated one last September involving seven landowners, two mountain ranges and more than 15 square miles of land. The latter swap drew more than 1,000 public comments and continues to garner interest.
Earlier this year, the agency forwarded the proposal to appropriations committees of the U.S. Senate and House. It will also go through an appraisal process to determine whether the lands acquired are equivalent in value to the federal lands surrendered.
Daley added that the agency is continuing to work through components of the proposal that are expected to impact tribal interests and wolverines, which garnered protected status under the Endangered Species Act in November. The Forest Service anticipates issuing a final decision this fall and implementing that decision a year later.
