TELLICO UPDATE- AUGUST 24, 2010
From: Greg Mumm
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 www.sharetrails.org/rescue-tellico