Homeowners Win One for a Scenic River

BOISE (CN) – Idaho can’t use a U.S. Forest Service access road across private property for commercial logging in a wild and scenic corridor along the Selway River, a federal judge ruled.
     Idaho Rivers United and property owners Morgan and Olga Wright sued the Forest Service in May under the National Environmental Policy Act, the Wild and Scenic Rivers Act and the state’s corridor river management plan. The state intervened as a defendant.
     The Forest Service designated Forest Road 652, in Northern Idaho’s Nez Perce National Forest, as a public road on Nov. 20, 2014, clearing the way for the Idaho Department of Lands to use it for commercial logging.
     The plaintiffs describe the road as a “short, unimproved spur” parallel to the Selway River, in the Selway Wild and Scenic River Corridor. The area is at the bottom of Idaho’s rugged Panhandle.
     The road was to be reconstructed as a 16-foot thoroughfare under the Department of Lands engineering plan, creating concern for habitat and private property value.
     Idaho Rivers said the 142-acre logging project would create 18,500 cubic yards of rubble waste that could create “massive sedimentation” and debris flows on the protected river.
     “The Selway is a national treasure, and the Forest Service has to protect the numerous values that lead to its Wild and Scenic designation,” Idaho Rivers United conservation director Kevin Lewis said in a statement praising the judge’s July 10 ruling.
     “Our lawsuit focuses on a specific issue, but the big picture is about upholding wild and scenic values. Wild and scenic rivers are our nation’s most precious, prized and celebrated rivers, and they deserve our utmost care and consideration.”
     The Wrights say the project would produce 6.89 million board feet of timber, requiring more than 1,000 truckloads across 740 feet of their private land, which is entirely within the corridor.
     “The reason I bought property and built a house on the bank of the Selway River was because of its incredible beauty, but also because of the protections afforded by the Wild and Scenic Rivers Act,” Morgan Wright said. “Being locked out of a Forest Service decision-making process that affects the value of my land is patently offensive and un-American.”
     The plaintiffs sought a preliminary injunction on June 24, prohibiting work on Forest Road 652 until the case is resolved.
     The road was improperly designated, according to Idaho Rivers attorney Laurence Lucas, with Advocates of the West.
     “The road does not meet the statutory definition of a ‘public road,’ based on lack of public maintenance,” Lucas told Courthouse News. “It is still a Forest Service road; it is still accessible to the public; it just does not qualify as a public road, which is what determines if a Forest Service special use permit is required or not for IDL [Idaho Department of Lands] to conduct its commercial activity on the road.”
     The Forest Service argued that the court does not have jurisdiction because the plaintiffs challenged only its failure to act; and that a 1937 easement allows the road to be converted into a public road.
     The Decision
     U.S. District Judge B. Lynn Winmill rejected both of the Forest Service’s arguments.
     “The court disagrees, and finds that plaintiffs have challenged a final agency action,” Winmill wrote in an 8-page order. “The Forest Service made an initial determination that a special use permit was required but later, after discovering the 1937 easement, decided that no such permit was needed, and that Forest Road 652 was a public road. That is final agency action reviewable by this court under [the] Administrative Procedures Act.”
     He confirmed the plaintiffs’ claim that the designation was incorrect.
     “By statute, a public road must be ‘under the jurisdiction of, and maintained by, a public authority,'” Winmill wrote. “This appears to mean that the road must be maintained by the Forest Service and designated as a public road. Here, the record shows that the section of the road that passes through the Wrights’ property has not been maintained by any public authority since a culvert was replaced in 1987. Instead, the Wrights have maintained the road at their own expense. Moreover, Forest Road 652 does not appear on any public maps.”
     Idaho claimed it would suffer economic harm if the injunction were granted.
     Winmill said, however, that the case would be expedited to avoid delays, and that the state brought the harm on itself.
     “It was only after this lawsuit was filed that the State auctioned and implemented the timber sale, and so it has, to some extent, created its own harm,” the judge wrote.
     Winmill said the injunction must be granted because of the potential environmental impacts on the Selway River.
     “Irreparable harm is likely if the injunction is not granted,” he ruled. “The Wrights’ property lies entirely within the Wild and Scenic River Corridor, and the potential harms outlined in the record constitute irreparable injury within that corridor. The court therefore finds that the potential harm to the Selway River if the injunction is not granted outweighs the hardship caused by any delay to the State. An injunction here would be in the public interest as it would recognize the protections for the Wild and Scenic River Corridor.”
     ‘Not a Small Victory’
     The injunction is “not a small victory,” according to attorney Lucas, who said Idaho now must seek a special use permit from the Forest Service, opening a floodgate of federal involvement the state was trying to avoid.
     “That permit triggers NEPA [National Environmental Policy Act] and ESA [Endangered Species Act] processes,” he told Courthouse News. “The Forest Service’s draft Johnson Bar Salvage EIS [Environmental Impact Statement] identifies the state salvage sale as posing serious threats to endangered fish habitat in the Selway River and tributaries. Thus the current plan for the sale probably would not pass federal approval. That means the state needs to revisit its approach, and conduct more targeted helicopter logging instead of the planned road and clear cut.”
     The Wrights’ attorney, Deborah Ferguson, said the lawsuit was about protecting valued interests, including Idaho homes.
     “The court’s injunction against the Forest Service and Idaho Department of Lands protects private property rights,” she said. “These are rights that we, as Idahoans, hold dear, against improper government influence.”
     Lucas said he does not know what the future holds for Forest Road 652 if the injunction becomes permanent.
     “The public authority that would maintain the road is presumably the Forest Service, not the state or any state highway district … since it is a Forest Service road,” he said. “We don’t know if the Forest Service will try to undertake maintenance in the future so that it can claim the road is a public road, but that would seem unlikely since it is expensive and the road is a short two-track that was never before needed as a public road until Idaho wanted it as such, so it could use the road without a permit.”
     The Forest Service did not respond to a request for comment.

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