IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINO~D
v.
UNITED STATES FOREST
SERVICE; BRUCE SLOVER,
Superintendent, Shawnee National
Forest; and DAN MORIARITY,
District Ranger, Shawnee National)
Forest, and SHAWNEE TRAIL)
CONSERVANCY,
F IL~ F D
..,..'-
fB 22 AMI '
JOSEPH M. GLISSON,)
Plaintiff,)
r
O. 14
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sgus.DiSTRICT
co8t;£RK
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JPHfUuDISTRlcf'
f1OFFICI!:~
)
)
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No. 99-CV-4189-JPG
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ORDER
GILBERT,
Chief Judge:
Pending before the Court is the plaintiffs motion for a preliminary injunction (doc. 2).
The defendants responded (docs. 12 & 26). The plaintiff replied to the defendantForest Service's
("FS") response (doc. 17).
I
Background
Glisson's suit involves a three-count complaint raising issuesunder the Administrative
Procedures Act,S V.S.C. §701 et seq., askingthe Court to declare certain actions and nonactions by the FS as arbitrary and capricious and violative of law, allegingthat: (I) the FS
decision to alIow equestrianuse of user-createdtrails in the Lusk Creek and JacksonHole natural
areasof the SNFviolates the National Forest ManagementAct ("NFMA"),16 V.S.C. §1604(i);
(2) the FS decision to allow outfitters and guide servicesto operate on the ShawneeNational
Forest ("SNF") without SpecialUse Permits ("SUP's") violates 36 C.F.R. §251.50(a); and (3) the
1
.,
.,
~~
"
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FS decision to allow outfitter and guide serviceson the SNF without the FS having conducted an
environmental analysisviolates the National Environmental Protection Act ("NEP A"). 42 V.S.C.
§4321 etseq., and specifically, its implementingregulations, 42 V.S.C. §4332 and 40 C.F.R.
§1508.18(b)(4).
A.
ComQlaint's reQuestsfor relief
The underlying complaint seeksdeclaratoryand injunctive relief, including asking the
Court to:
(1)
declare that equestrianuse of user-createdtrails in the Lusk Creek and Jackson
Hole areasof the SNF violates NEPA, and therefore, is arbitrary and capricious;
(2)
declare that the FS' decisionto allow outfitters and guides to operate within the
SNF without the required SUP's violates 36 C.F.R. §251.50, and therefore, is
arbitrary and capricious;
(3)
declare the FS' decisionto allow outfitters and guides to operate without the FS
conducting a proper environmentalanalysisviolates 42 V.S.C. §4332 and 40
C.F.R. §1508.18(b)(4), and therefore, is arbitrary and capricious;
(4)
enjoin further equestrianuse of user-createdtrails in Lusk Creek and Jackson
Hole;
(5)
order (a) the closure ofLusk Creek and JacksonHole to horse traffic, (b) the FS
to mark and post the closure and natural areaboundaries,and (c) assign sufficient
FS personnel to these areasto patrol and issue citations to violators;
(6)
enjoin the FS and order the FS to "cease implementation" of the decision to allow
outfitters and guides on the SNF without SUP's and a proper environmental
2
,
,
--"
analysis;
(7)
order the FS to assignpersonnelto identify those individuals providing outfitter
and guide serviceswithin the SNF and require them to obtain SUP's;
(8)
order the FS to assignpersonnelto specificallymonitor Bear Branch Campground
to ensureits compliance with relevant statutesand regulations; and
(9)
order the defendantsto pay the plaintiffs costs.
B.
Preliminary injunction reQuests
The plaintiffs motion for a preliminary injunction implicates all three counts of his
complaint and requeststhe Court to (1) enjoin equestrianriders from using user-created trails in
the Lusk Creek and JacksonHole natural areasof the SNF; (2) prohibit outfitter and guide
services from operating within the SNF without the FS issuing SUP's and conducting
environmental analyses;and (3) enjoin further commercialand or group equestrianevents on the
SNF until the FS conducts a proper environmentalanalysisand issues proper permits.
In addition, the preliminary motion asks the Court to order the FS to mark and post the
Lusk Creek and JacksonHole areas againsthorse traffic and to daily monitor and enforce any
injunction as well as to issue citations to violators. Glisson also asks the Court to order the FS to
issue citations to those individuals or businessesproviding outfitter and/or guide services within
the SNF without SUP's. He further asks the Court to order the FS to immediately begin
conducting an environmental analysis of the overall effects of equestrianuse on the Shawnee.
In his reply, Glisson acknowledges that the FS has now closed the natural areasto
equestrians (per FS Order No. 08-02, 36 C.F.R. §261.58(aa),dated September 14, 1999). He
asserted,however, at the hearing that the FS is still permitting horses and riders in these areasand
3
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.
is refusing to enforceits own regulations. At that hearing, the Court Ordered the FS to enforce
the closure of thesetwo areas;to report monthly to the Court until further notice on the posting
measurestaken to notify the public that thesetwo areasare closed to horse riding; and suggested
to the FS that it ask for additional personnelto assurethat these areas are clearly marked as
closed as quickly as possible. In addition, the Court ordered the FS to mark the trees in these
areasand not use small, inconspicuous signsto mark the closure and to include in its monthly
report its monitoring and enforcement efforts, including how many tickets, citations issued for
violators of the closureorder. Since that time, the FS has provided reports as ordered on its
efforts to mark and post the closure ofLusk Creek and JacksonHole.
C.
Nature of suit and motion
This is an action for injunctive and declaratory relief under the APA. 5 V.S.C.
§706(2)(A). The Court has facts before it that were contained in the pleadings. In addition, the
Court received evidencebefore, during and following the hearing on the preliminary injunction
motion. Pursuantto Fed.R.Civ.P. 65(a)(2), the Court will consider that evidence already in the
record and that evidencepresented at the hearing for purposes of determining the underlying
issuesin this litigation. It provides that the hearing on a preliminary injunction may be
consolidated with one on the merits, that any evidence introduced at a Rule 65(a) hearing that
would be admissibleat trial becomes part of the record and need not be repeated.As stated by the
Advisory Committee in its Note to the amendment,this is one method by which courts may utilize
to increasetheir efficiency in handling casesinvolving preliminary injunctive relief and to expedite
the final disposition of the action. SA Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2941 @ 65).
4
..
Because
the
duplication
of
preliminary
injunction
evidence
complaint
and
on these
matters
that
was
not
the
Court
and
will
address
(doc.
n
without
individuals
and
environmental
to
businesses
to
A.
provides
All
(part
officer
of
for
228)
National
in the
and
and
Order
the
C.F.R.
those
those
FS
already
DENIES
follows
the
hearings
in the
request
Court
underlying
evidentiary
presented
is Glisson's
in
at the
plaintiff's
further
issue
the
Court
decision
for
costs,
issued
motion
complaint
which
Orders
at the
for
a preliminary
guide
services
below.
to
allow
§251.50
et seq.
He
services
on the
SNF
§4332
and
implicated
SUP's
the
must
Forest
40
statutes
are found
System
regulations
grazing
in a special
(requirement
c) A special
motion
the
by the
conduct
only
result
as presented
presented
The
merely
further
C.F.R.
and
outfitters
and
argues
without
that
allowing
conducting
§1508.18(b)(4).
on
an
This
Order
will
regulations.
in 36
C.F.R.
§251:50.
These
regulations
part:
uses
engaging
evidence
to
As
would
at issue
V.S.C.
regarding
in pertinent
(a)
from
need
merits
~
regulations
provided
36
the
issues
parties.
above),
that
42
the
Court's
operate
violates
excerpts
from
Court
no
injunction
regulations
the
of the
finds
on the
that
accordingly.
(outlined
violates
pertinent
Order
of the
finds
all
Court
input
hearings
Court
preliminary
SUP's
analysis
The
its
rest
and
argues
SNF
issue
The
the
the
without
Statutes
Glisson
relief,
hearing
2).
further
encompasses
by the
injunction
injunction
provide
for
that
because
hearing
requests
may
believes
and
addressed
preliminary
the
Court
obtain
of
use,
lands,
governing
livestock
persons
a special
(part
or entities
use
isusewaived
authorization
by paragraph
is not
improvements,
the
disposal
222),
must
authorization
are
of
designated
submit
from
and
timber
an
the
resources,
(part
"special
application
authorized
required
(c) of this for
section.
noncommercial
except
223)
and
uses."
those
minerals
Before
to
an authorized
officer
unless
recreational
that
activities.
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,
such as camping, picnicking, hiking, fishing, hunting, horsebackriding, and boating, as
well as noncommercial activities involving the expressionof views such as assemblies,
meetings, demonstrations,and parades,exceptfor: ...
(3) Nonconmlercial group usesas defined in S 251.51 of this subpart. [Emphasis
added]
36 C.F.R. §251.50
Federal regulations define "noncommercial use or activity" as "any use or activity that
does not involve a commercial use or activity as defined in this section." 36 C.F.R. §251.51.
Those sameregulations define "commercial use or activity" as "any use or activity on National
Forest Systemlands (a) where an entry or participation fee is charged, or (b) where the primary
purpose is the sale of a good or service, and in either case,regardlessof whether the use or
activity is intended to produce a profit." [d. Regulations define "group use" as "activity
conducted on National Forest Systemlands that involves a group of75 or more people, either as
participants or spectators." Id.
Summarizingthese regulations: regulations require SUP's for all commercial uses and
even for non-conlmercial use if that use may be properly considereda "110ncommercialgroup
use" involving 75 or more people as participants or spectators. Noncommercial individual and
noncommercial group use involving less than 75 people does not require the issuanceof an SUP.
B.
Environmental analysis
The umbrella statute governing recommendationsregarding environmental policy is
42 U.S.C. §4332. In part, that statute provides:
The Congressauthorizes and directs that, to the fullest extent possible: (1) the policies,
regulations) and public laws of the United States shall be interpreted and administered in
accordancewith the policies set forth in this chapter, and (2) all agenciesof the Federal
Government shall-
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(C) include in every recommendationor report on proposals for legislation and other
major Federal actions significantly affecting the quality of the humanenvironment, a
detailed statementby the responsibleofficial on-(i) the environmental impact of the proposed action,
(ii) any adverse environmental effectswhich cannot be avoided should the proposal be
implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the
maintenanceand enhancementof long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved
in the proposed action should it be implemented. ..
42 U.S.C.A. §4332.
The regulation that defines "major Federalaction" is 40 C.F.R. §1508.18, and especially
for this case, §1508.18(b)(4). That regulationprovides in pertinent part:
1508.18 Major Federal action.
"Major Federal action" includes actions with effects that may be major and which are
potentially subject to Federal control and responsibility. Major reinforces but does not
have a meaning independentof significantly (S 1508.27). Actions include the
circumstance where the responsibleofficials fail to act and that failure to act is reviewable
by courts or administrative tribunals under the Administrative Procedure Act or other
applicable law as agencyaction. ..
(b) Federal actions tend to fall within one of the following categories: ...
(4) Approval of specific projects, suchas construction or management
activities located in a defined geographicarea. Projects include actions approved by
permit or other regulatory decisionas well as federal and federally assistedactivities.
[Emphasis added]
40 C.F.R. §1508.18
III
Analysis
In the context of reviewing a federalagency's decisions and actions, courts give
substantial deferenceto the agency's interpretation of its own regulations. ThomasJefferson
University v. Shalala, 512 U.S. 504,512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). That Court
7
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.."
explained that "we must defer to the Secretary's interpretation unless an alternative reading is
compelled by the regulation's plain languageor by other indications of the Secretary's intent at
the time of the regulation's promulgation." Id. (citations and internal quotations omitted).
Pettibone Corp. v. UllitedStates, 34 F.3d 536, 541 (7th Cir.1994). Deference does not mean
abdication, however, and courts are required "to accept only those agencyinterpretations that are
reasonablein light of the principles of construction courts normally employ." Pettibone Corp. v.
United States,34 F.3d 536,541 (7th Cir.1994) (quoting EEOC v. Arabian American Oil Co., 499
V.S. 244, 260, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (Scalia, J., concurring in part and
concurring in judgment)); see also Rhodesv. JOhllSO11,
153 F .3d 785, 789-90 (7thCir. 1998).
Becausethis case involves judicial review of an agency's decision, the Court's ultimate
decision on the merits of this case is subjectto a narrow standard. Under the APA, courts
evaluate agencyactions to determine if they are (1) arbitrary, capricious, an abuseof agency
discretion, or otherwise not in accordance with law; or (2) in excessof statutory jurisdiction,
authority or limitations. 5 V.S.C. § 706(2) (1988); Sierra Club v. Marita, 46 F.3d 606,619 (7th
Cir .1995).
In general, the Court may not and will not substitute its judgment for that of the agency.
This deferenceto agencydecisions does not mean obeisance,however. Deference does not
"shield" an agency action from a thorough, probing, in-depth review by the Court. The agency
must follow federal statutes and its own regulations when implementing a decision. When an
agency"entirely failed to consider an important aspectof the problem,"offered an explanation for
its decision that runs counter to the evidencebefore the agency, relies on factors that Congress
has not intended it to consider, or is otherwise so implausible that it could not be described as
8
...
based on agencyexpertise, the agencyhasviolated the standardsof the APA. Marita, 46 F.3d at
619. An agency's interpretation of its own regulations generally governs, however, unless plainly
erroneous or inconsistentwith those regulations. Robertson v. Methow Valley Citizens Council,
490 U.S. 332,359, 109 S.Ct. 1835, 1850-51, 104L.Ed.2d 351 (1989); Washington TrailsAss'n.
v. United StatesForest Service, 935 F.Supp. 1117, (W.D. Washington 1996).
While the arbitrary and capricious standardgives due deferenceto FS expertise, the Court
must and will make sure that the FS has taken a "hard look"at the environmental consequencesof
its proposed action and that the FS basedits decision on a reasoned consideration of the
environmental consequences. 42 U.S.C.A. §4321 et seq.; Marsh v Oregon Natural Resources
Council, 490 U.S. 360,373-74, 109 S.Ct. 1851, 1859 (1989).
Judicial review of the FS' factual determination should focus on the administrative record.
The Court may, however, consider evidenceoutside the record if necessaryto explain the FS'
action or to determine whether the FS inquiry was insufficient or inadequate. Washington Trails
Ass 'n., 935 F. Supp.1117, 1121. In this particular instance,the Court believes that it is very
unclear how much of an administrative record exists, since this is a caseof the FS allegedly
"failing" to act, not actually making anaffirmative, recorded decision. Therefore, the Court may
and will consider testimony and evidencepresentedby the FS at the preliminary injunction hearing
that was presentedto explain the FS' actions in this case.
In his original complaint, the plaintiff Glisson make eight (8) separaterequests for relief.
For clarity and efficiency, this Order will analyzeeach of those requests in turn, designatedas
A-H.
9
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I
A.
Equestrian use of user-createdtrails in Lusk Creek and JacksonHole
Glisson requestedthe Court to declare that eq~estrianuse of user-created trails in the
Lusk Creek and JacksonHole natural areasof the SNF violates NEPA. The Court finds this issue
MOOT, as the FS' Order No. 08-02, dated September14, 1999,36 C.F.R. §261.58aa, closed
these areasto "riding, hitching, tethering, hobbling or leading a horse or saddle or pack animal in
violation of posted instructions." At the hearing, however, Glisson assertedthat the FS was still
permitting horsesand riders in these areasand was refusing to enforce its own regulations and
provided an affidavit which stated that as of September21, 1999, Bear Branch "guide" Red Jones
was observed guiding riders into the JacksonHole natural area.
At the preliminary injunction hearing in October, 1999, the Court ordered the FS to
enforce the closure of these two areas;to report monthly to the Court until further notice on the
posting measurestaken to notify the public that thesetwo areasare closed to horse riding; and
suggestedto the FS that it ask for additional personnelto assurethat these areas are clearly
marked as closed as quickly as possible. In addition, the Court ordered the FS to mark the trees
in these areasand not use small, inconspicuoussigns to mark the closure and to include in its
monthly report its monitoring and enforcementefforts, including how many tickets, citations
issued for violators of the closure order. Since that time, the FS has provided reports as ordered
on its efforts to mark and post the closure ofLusk Creek and JacksonHole.
The FS has complied with the Court's order and has submitted monthly reports outlining
the efforts made to mark and post these closed areasand to monitor and enforce the FS' closure
order. While the Court recognizes that this issue is MOOT for purposes of the declaratory relief
sought by Glisson, the Court ORDERS the FS to continue expeditiously marking and posting the
10
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closure of these two areasand to accomplishthis task as quickly as possible, especially in light of
the closure order's language which allows for violations only in posted areas.
In addition, the Court ORDERS the FS to follow its own regulations to vigorously
monitor for and issue citations to violators of the closure order. The Court will look very
disfavorably upon further evidence indicating that the FS is negligently or deliberately refusing to
comply with this Order or to take its responsibilitieslightly as regards to these closed natural
areas. The Court has received and reviewed the evidencepresentedof the existing and potential
serious damagefurther horse traffic may visit upon the Lusk Creek and JacksonHole areasand of
the likelihood that some horse riders may be unaware of or purposely ignoring the FS' closure of
these natural areas. The Court ORDERS all parties, including the intervenors in this case,to
rapidly work toward the goal of disseminatinginformation about the closure of these two areas,
to educate potential horse riders about the closure and the penalties the Court expects will be
imposed for violating the FS' own closure order and to take all reasonablemeasuresto protect
these closed areas.
The Court REMINDS AND ADVISES the intervenors that, since the Court allowed
them to intervene, this Court's Orders apply equally and appropriately to their members,and
violations of this Court's Orders will result in possible contempt proceedings. Intervening in a
civil casecarries potential benefits to the intervening parties, but it also carries with it the
responsibility and obligation to fully and completely comply with Court Orders directed at the
issues in the litigation. The Court expectsno less in this caseand intends to enforce its Order
against all parties with the full and complete power and authority of this Court.
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B.
Failure to reQuire SUP's for outfitters and guides
After carefully reviewing the evidencepresentedand the statutesand regulations involved,
the Court DECLARES that failure by the FS to require SUP's for individuals and entities
providing outfitting and guide services on the SNF does violate 36 C.F.R. §251.50, and is
arbitrary and capricious. It is clear that the FS must issue SUPS's for horse campgrounds that
provide the types of services Glisson enumeratesthroughout these pleadings.The decision as to
whether or not individuals or entities operating or attempting to operate in this manner on the
SNF meetthe definitions of ,'outfitter" or "guide service" will be left to the FS' discretion. The
Court MANDATES full compliance, however, by both the defendantsin this case with all
relevant and applicable federal regulations and statutes. The Court will look with great disfavor
upon any party that fails to fully comply with and exactly follow establishedregulations and
policy.
The Court CAUnONS
the FS that it may not and must not allow non-FS individuals or
entities to define and circumscribe which activities meet the statutory and case law definitions of
"outfitting" and "guiding." The FS must follow and implement its own guidelines using a
reasonableinterpretation consistent with those regulations and definitions. If it does not, the
Court may find that it has abused its discretion in these matters and may find that its future actions
amount to arbitrary and capricious conduct. The Court expects that the FS will monitor for and
consistentlycite unauthorized providers of these types of services,as provided for in federal and
FS regulations.
The regulations regarding SUP's are found in 36 C.F.R. §251.50, and are contained earlier
in this Order. Federal regulations state clearly that individuals (and entities) that provide
12
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outfitting and/or guide services on FS land must obtain SUP's. 60 Fed. Reg. 30831, 30840.
Individuals or organizations conducting outfitting or guiding activities on National Forest System
lands must have a permit unlessthe authorized officer issuesa Temporary Special-Use Permit
(Form FS-2700-25) for incidental use (sec. 41.53e). Forest Service Manual ("FSM") 2705.
Regulations state that "outfitting and guiding includes a wide range of activities, such as
river rafting, horsebacktrips, guided wildlife photography excursions, and mountain-bike tours."
ld
Outfitting and guiding servicesinclude but are not limited to packing, hunts, float trips, canoe
or horse liveries, ski touring, helicopter skiing, jeep tours, boat tours, and fishing trips. SeeFSM
2340 and FSM 2701-2705. The issuanceof SUP's for these activities is very common and
widespread within the FS. Annually, some 2,800 specialuse permits are in effect for outfitting
and guiding on National Forest Systemlands. The majority of these are for commercial
operations. Fees are generallythree percent of the revenue generated from the use of National
Forest Systemlands. 60 Fed. Reg. 30840. Application and authorization procedures established
in 36 C.F.R. § 251.54 and FSM 2712 are fully applicable to outfitter and guide applications.
Regulations are just as clear that "(c)ommercial use. ..of National Forest Systemlands
without a specialuse authorization is defined as 'unauthorized..'" 60 FR 30834. Unauthorized use
may result in citations. The FS administerspermits for outfitters and guides operating on
National Forest Systemlands in accordancewith the direction in the FS Special Uses Handbook,
sections 41.53a through 41.531. 60 FR 30830, 30841. Federal regulations and the FS' own
internal policies and guidelines mandate that FS personnel"work with other Federal agencies,
State and local authorities, outfitters, and outfitter and guide organizations to ensure that
outfitting and guiding activities are consistentwith applicable laws and regulations and to identify
13
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unauthorized outfitting and guiding activities." 60 FR 30830, 30840. In addition, FS personnel
must follow procedures in FSM 5300 for investigating and taking action to prevent the
occurrence of unauthorized outfitting and guiding activities. Id. In this case,the Court
ORDERS the FS to actively attempt to identify those individuals and entities providing
unauthorized serviceson the SNF and seekpermit applications from them, using as much
diligence as resourcesand personnel allow.
1.
Outfitting services
The FSM defines "outfitting" to "[i]nclude[s] the provision of equipment, supplies,
livestock, and materials. It includes such outfittin
g
services
as
rental
of
boats
"
skis
horses
,
tents
,
and other equipmentor gear." Forest Service Manual 2721.53c(2). Outfitting includes the
provision through rental or livery of any saddleor pack animal, vehicle or boat, tents or camp
gear, or similar supplies or equipment, for pecuniary remuneration or other gain. The term
"outfitter" includes the holder's employees,agents,and instructors. 60 Fed. Reg. 30840.
In its responseand during oral argument at the preliminary injunction hearing, the FS
relied in part on a very specific sentencewithin federal regulations relating to outfitters who are
located off ofFS land. That regulation reads:
"Outfitters based off National Forest Systemlands who rent and deliver equipmentor
livestock to the public on National Forest Systemlands must obtain a permit if they, their
employees, or agents occupy or use National Forest Systemlands or related waters in
connection with their rental programs. For example, a permit is required if a boat livery
operator provides service, including delivery or pickup of boats, at sites on National
Forest Systemlands. No permit is necessarynor is a fee charged if an operator's
customers transport rentedequ;pment to andfrom the Natiol1alForest Systemlands. .."
[emphasisadded]
60 Fed. Reg, at 30,841.
The FS argues that this last sentencemeansthat if the affected SNF campground
14
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operators do not "transport" their rented horsesto and from FS land, then those operators do not
need an SUP. The Court does not read the statute in that way, nor does it believe that the statute
should be so narrowly construed in sucha way as to provide such a convenient way for outfitters
to circumvent federal SUP regulations. See36 C.F.R. § 251.50.
First, although the FS did not quote the first sentenceof this section, the plain language of
the statute refers to "equipment or livestock." The last sentencethat the FS wishes to use
mentions only "equipment" and fails to usethe term "livestock." Therefore, in the context of
interpreting its plain meaning, the final sentencearguably does not even apply to outfitters who
rent "horses." The Court is unable to discover any case law interpreting this section but does
believe that the words and terms used are not ambiguous, so that under ordinary statutory
construction, the Court must apply the plain language of the statute. Had the intent of the
drafters beento make the sentenceapply to "livestock," as does the first sentence,they could
easily have done so. The Court finds that it would be erroneous and inconsistentwith regulations
for the FS to so narrowly define the term "outfitter" as it relates to these permit regulations.
Second, the few court casesthat exist interpreting these regulations do not so narrowly
interpret the definition of ,'outfitters." See United Statesv. Patzer, 15 F.3d 934 (101hCir. 1993).
And, again, the plain language of the regulation defining "outfitter" does not refer only to
"equipment," but also "supplies, livestock, and materials." The Court is unableto imagine a
scenario in which an outfitter would rent livestock that he would actually "transport" onto FS
land. Customers ride horses and the Court would presume that in the vast majority of cases in
which this regulation has been applied to the rental of horses, the outfitter did not "transport"
those horses onto FS land for the customer;the customers rode horsesthemselvesonto FS land.
15
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boat or canoe, as in the example above, is-an entirely different "vehicle" and must naturally and
obviously be transported to water to be usable. The very narrow, technical definition urged on
the Court by the defendantflies in the face of common sense,and likely in the intent of the
regulation to control the occupancyand use ofFS land. The Court believes that using such a
restrictive interpretation of the term "outfitter" could defeat the entire purpose of the regulation.
An entity or individual could attempt to circumvent the reasonsfor and the requirements of SUP's
simply by operating what is in all other aspectsan "outfitter" businessjust feet from FS land
boundaries as long as none of his employeeswent onto FS land.
The Court remains unpersuadedby the FS' other argument at the hearing that under a
more broad definition, a Carbondale,Illinois motel that provides rooms or equipment for these
recreationists could be termed an "outfitter" and required to obtain an SUP. Regulations do
exempt from SUP requirementsthose businessesproviding merely "equipment" which is
transported by customers to and from FS land. Those businesses,however, would be very
unlikely to rent horses to be ridden onto FS land, unlike the businessesand entities at issue in this
suit. In addition, and significantly, an entity such as those describedand mentioned in this
litigation that rents horses and provides equipment, tack, camping and packing equipment as well
as feed, etc., for those animals presumablyand reasonablywould go onto FS land to care for,
rescue, locate or otherwise assistcustomers in the use of those animals and equipment "in
connection with their rental programs." The Court finds it very unreasonableand almost
incredible to assert or believe otherwise. Such parsing of words and definitions by both
defendants in this case does not lend itself to a positive resolution of the issuesinvolved here.
In addition, at least one of the entities mentioned in the litigation and defended by the FS
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in both its responseand in Court, the Bear Branch Campground, specifically identifies itselfin
advertisementsas located within the SNF, specifically "in the heart of the ShawneeNational
Forest," etc., as well as describing itself as an "outfitter." While the Court will not concern itself
with issuesof false advertising or misrepresentation,the Court also believes that an entity that so
closely aligns and identifies itself with providing these types of serviceswithin the SNF may not
assumethat this Court will ignore those representations. A businessmay not hold itself out in
sucha mannerand seekto disassociateitself from its own statementsand representationsin an
attempt to influence the Court's ruling in this case.
Using this statute, the FS provided the Court with an affidavit from Dick Manders of the
Bear Branch Campground stating that his businessdoes not "transport" his customers or their
horses onto SNF land. Neither this affidavit nor the FS response,however, addressesthe
provision of equipment, supplies or materials that are used by customers during their SNF rides.
Glisson has provided the Court with fairly solid evidence demonstrating that at least Manders'
businessprovides not only horses, but also tack, feed and supplies for its customers' rides and
guide servicesonto the Shawnee. Manders advertiseshis businesson the Internet as being
located on the SNF (not offit) and solicits businessby advertising the campground servicesas
providing outfitting and guiding on the SNF and identifies himself as an outfitter on his own
website. Manders' affidavit as provided by the FS also states that his campground does not offer
guide servicesonto FS land, but Glisson has provided the Court with several affidavits
contradicting Mander's assertions and which state that Manders's campground does provide
guide servicesthrough his employee Red Jones. While the FS' argument focused almost
exclusively on the word "transportation" contained in one paragraphof regulations on this
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subject, the Court clearly believes that the argumentmay not turn on sucha narrow interpretation
of the statutes and regulations.
,
In one of the few cases dealing with this issue, United Statesv. Patzer, 15 F.3d 934 (10th
Cir. 1993), the appellate court ruled that the defendantwas an outfitter and required to obtain an
SUP becausehis businessprovided "horses, tack, camping and packing equipment" as well rented
horses, tack and camping equipment to recreationistsusing national forest land. Id. at 939. While
the Court admits that there is not a lot of caselaw interpreting these regulations and that normally
the FS' interpretation of its own regulations is given great weight by courts, the Court does
believe that it is clear that "outfitting" may involve a much wider range of services than that
claimed by the defendantsin this case.
2.
Guide services
FS regulations define "guiding" as "[p]roviding, for pecuniary remuneration or other gain,
services or assistance...or otherwise assistingindividuals or groups in their pursuit of a natural
resource based outdoor activity." FS SpecialUses Handbook 2709.11, § 41.53c. In addition, the
FSM defines "guiding" as "the provision of assistancesuch as supervision, protection, education,
training, transportation, interpretation and guiding services. It includes such personal services as
leading, teaching, cooking, packing, or otherwise assisting recreationists in their pursuit of a
natural resource based outdoor recreation experience." [emphasisadded] FSM 2721.53c(1).
Federal regulations define guiding as "[p]roviding services or assistance(such as supervision,
protection, education, training, packing, touring, subsistence,interpretation, or other assistanceto
individuals or groups in their pursuit of a natural resource-basedoutdoor activity) for pecuniary
remuneration or other gain. The term 'guide' includes the holder's employees,agents, and
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instructors." 60 Fed. Reg. 30840. The Court notes that this definition includes those who
provide these services for "other gain," not merely pecuniary remuneration. Therefore, anyone
providing these services in exchangefor living arrangements,rent, meals,property, etc. also will
be deemed by this Court to be a "guide."
These definitions all demonstratethat the term "guide" as it relates to the issues in this
case encompassesa wide and varied range of services that may be provided to recreationists. As
with the term "outfitter," the Court does not believe that the term "guide" is one that regulations
intended to be defined narrowly. Individuals and businesseswho provide these types of services
must apply for and obtain SUP's in order to operate on National Forest S~rvice lands.
It is not the Court's duty, and the Court does not intend to make an individual finding on
each and every individual or businessthat seeksto operate within the SNF. In addition, the Court
was not asked to make a particularized finding regarding any individual or entity. The Court will,
however, make a finding that activities suchas those delineated and describedabove do rise to the
level of ,'guide" and "outfitting" services,and individuals and businesseswho provide these types
of service operate without SUP's do so at their peril. Certainly, as ORDERED above, the parties
in this case must fully and completely comply with all existing and applicable regulations in this
regard. Other individuals and entities operating as unauthorized are subjectto citations and other
FS sanctions. The Court will addressspecifically the FS' obligations in a later section of this
Order.
As for the only businessspecifically mentioned in this complaint and about which evidence
was presented on these matters, while the Court leavesthe ultimate determination up to the FS,
the Court finds that the evidence strongly suggeststhat Bear Branch Campground would likely be
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classified by regulations and other courts asproviding outfitter and guide servicesto recreationists
on the SNF, and as such, required to apply for and obtain an SUP from the FS in order to conduct
these activities and services on FS land. 60 Fed. Reg. 30,840-41; seealso United States of
America v. Patzer, 15 F.3d 934,939 (10thCir. 1993).
C.
Environmental analysis
Glisson asks the Court to declare that issuing outfitter and guide SUP's without.
conducting a proper environmental analysisviolates NEPA, 42 V.S.C. § 4332 and 40 C.F.R. §
1508.18(b)(4), and therefore, is arbitrary and capricious. Federal regulations require the FS to
conduct environmental analysesfor outfitter and guide applications in accordance with procedures
in FSH 1909.15, National Environmental Policy Act Handbook. 60 Fed.Reg. 30830,30841.
Therefore, the Court DECLARES that failure of the FS to conduct proper environmental
analysesfor outfitter and guide applications in accordancewith establishedprocedures is arbitrary
and capricious. The Court ORDERS the FS to follow its own rules and regulations fully and
completely.
While not specifically framed in his complaint, in his motion for preliminary injunction,
Glisson asked the Court to enjoin further commercial or noncommercial group equestrian event
activity on the SNF until the FS conducts an environmental analysis, pursuant to NEPA. 42
V.S.C. § 4332 and 36 C.F.R. §1508.18. The pertinent NEPA sections have been provided earlier
in this Order.
In a case previously heard before this Court, Glisson v. United StatesForest Service, et
al., 99-CY-4073-JPG, this Court ruled that the FS must perform a record of environmental
analysis for events similar to the charity RIDE 99, including any and all events and activities for
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which the FS must issue SUP's. This ruling was also memorialized in a Memorandum of
Understandingamong the parties, dated May 20, 1999. That ruling still stands and binds the FS
to perform proper environmental analysesfor such events as required by regulations.
Similarly, in adopting final policy and procedures for issuing and administering permits and
assessingfees for outfitting and guiding activities on National Forest Systemlands, federal
regulations and the FSH also plainly require the FS to conduct environmental analysesin
conjunction with this application process and to follow the FS NEPA Handbook when doing so.
(FSH) 2709.11, SpecialUses Handbook., § 41.53f. Failure to so conduct such environmental
analyseswould violate both this Order and NEPA policy and procedures contained in 42 U.S.C.
§ 4332, 40 C.F.R. §1508.18(b)(4) and FSH 1909.15.
D
Enjoin eguestrianuse of user-createdtrails in Lusk Creek and Jackson
~
In keeping with the earlier section of this Order DENYING AS MOOT the plaintiff's
request for declaratory relief on this issue,the Court further DENIES AS MOOT the plaintiff's
request for an injunction against equestrianuse of user-createdtrails in the Lusk Creek and
JacksonHole areasof the SNF. As stated above, the FS has already closed these areas and is in
the process of marking and posting the closures and is under this Court's Order to monitor for
and cite violators of the closure order and, along with all other parties to this case,to take all
reasonableand speedysteps to disseminateinformation about these closures in order to most fully
protect these sensitive areas.
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E.
Order closure. marking and costing ofLusk Creek and Jackson Hole and
assign cersonnelto gatrol
In his complaint, Glisson askedthe Court to order (1) closure of these areasto equestrian
use; (2) marking and posting of the natural area boundaries; and (3) assignmentof sufficient
personnelto patrol and issue citations. The Court finds the first two requests MOOT as the
Court noted above. The Court DENIES the requestto order assignmentof personnel. The
Court will not interfere with the FS' personnelallocations, recognizing the wide variety of reasons
for the allocation of personnelwithin any federal agency, but at the preliminary injunction hearing
on October 15, 1999, the Court strongly suggestedthat the FS to ask for additional personnel to
aid in clearly marking these closed areas.
At that hearing, the Court advisedthe FS to go so far as to ask other FS areas to loan
officers until the signs and posts are all up. In addition, the Court ordered the FS to submit
monthly progress and activity reports on the enforcement of the closures through marking and
posting and monitoring efforts, as well as on the number of citations issued. The Court
CONTINUES that Order until all of the closed areasare marked and posted and CONTINUES
to strongly encourage the FS to acquire sufficient personnelto finish these tasks as quickly as
possible, especiallybefore the advent of warmer weather.
F
Injunction for outfitters and guides without SUP's
In his complaint and in his motion for a preliminary injunction, Glisson asks the Court to
enjoin the FS and order the agencyto "cease implementation of the decision" allowing outfitters
and guides to provide these services on the SNF without the proper SUP's and without a proper
environmental analysis by the FS. While not specifically framed in his complaint, in his motion
22
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for preliminary injunction Glisson asked the Court to enjoin further commercial or noncommercial
group equestrianevent activity on the SNF until the FS conducts an environmental analysis,
pursuant to NEPA. 42 V.S.C. § 4332 and 36 C.F.R. §1508.18. The pertinent NEPA sections
have beenprovided earlier in this Order. As noted in an earlier section of this Order, the FS
guidelines and regulations require SUP's for all commercial uses and even for non-commercial
use if that use may be properly considered a "110ncomnlercialgroup use" involving 75 or more
people as participants or spectators. Noncommercial individual and noncommercial group use
involving less than 75 people does not require the issuanceof an SUP. Because the Court has and
will addressthe specific requirements for SUP's for outfitters and guides, it believes that the
request for a preliminary injunction for just "commercial and non-commercial group use" may
properly be subsumedin the overall analysisof the permit process. The Court's Order will apply
equally and completely, therefore, to any and all commercialuse of the SNF, or to noncommercial use involving 75 or more participants at an event. The Court believes it is
unnecessaryto direct any portion of its Order to one particular type of use requiring a permit.
1.
Standard for Drelimina(YinJunction
In considering whether to grant injunctive relief, the Court must weigh the relative
strengths and weaknessesof the plaintiff's claims in light of the establishedfive-part test:
Specifically, Glisson must establishthat: (1) there is a reasonableor substantial likelihood
that his complaint would succeed on the merits; (2) there is no adequate remedy at law;
(3) without an injunction, Glisson would suffer irreparable harm; (4) that the irreparable harm
suffered by Glisson in the absenceof the injunctive relief would outweigh any irreparable harm
that the Forest Service would endure if the injunction were granted; and (5) that the public
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interest would be served by an injunction. TeamstersLocal Unions Numbers 75 & 200 v. Barry
Trucking, Inc., 1999 WL 280965,7 (7th Cir. 1999); Glissonv. United StatesForest Service, 805
F.Supp. 647, 649 (S.D. III. 1992).
Generally, plaintiffs seekingpreliminary injunctions must meet two threshold burdens:
that (1) they have some likelihood of successon the merits of their claim(s); and (2) they, as
movants, will suffer irreparable harm if the Court does not order the preliminary injunction. In re
Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Cir.1997). If the plaintiff sufficiently
makes these "threshold showings," then the Court "moves on to balancethe relative harms" and
weigh the competing considerations. Id. In doing so, the Court subjectively evaluatesthe various
harms and may use "'a personalintuitive senseabout the nature of the case.'" Roth v. Lutheran
Gen. Hosp., 57 F.3d 1446, 1453 (7th Cir.1995) (quoting Lawson Products, Inc. v. Avnet, Inc.,
782 F.2d 1429, 1436 (7th Cir.1986)); seealso Abbott Lab. v. MeadJohnson & Co., 971 F.2d 6,
12 (7th Cir.1992) (characterizing the district court's preliminary injunction analysisas "subjective
and intuitive"); see Phillip Morris hlcorporated v. Allen Distributors, I,1C.,848-48 F.Supp.2d
844, 848-49 (N.D. III. 1999). The greater the likelihood that the plaintiff will prevail, the less ora
showing he need make that the denial of the preliminary injunction would harm him more than
granting it would harm the defendant. Plal111ed
Parel1thood of WiSCO11Sil1
\'. Doyle, 162 F.3d 463,
465 (7th Cir. 1998); Hetreedv. Allstate Ins. Co., 135 F.3d 1155, 1158 (7th Cir.1998).
a.
Irregarable harm
If the irreparable harm to the plaintiff from denial of the injunction greatly exceedsthe
irreparable harm to the defendant from granting it, the injunction should be granted, provided only
that the plaintiff has some--it need not be a great--chance of winning when the full hearing is held.
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Cronin v. UnitedStatesDept. of Agricultzlre, 919 F.2d 439, 445 (7th Cir. 1990); Roland
Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 387-88 (7th Cir.1984). The Court
believes that the evidence in this casedoes not sufficiently show the real threat of irreparable
harm.
In Cronin, the Seventh Circuit describedthe circumstancesin which a preliminary
injunction might be proper and necessary:for example, in a case in which it is necessaryto
reconstruct the grounds for or contents of an agency's decision, and time is of the essence,i.e.,
when an emergencyprevents leisurely consideration by the reviewing court of an adequate
administrative record. Cronin, 919 F.2d at 447-48. The plaintiff Glisson is not alleging an
"emergency," and most of his allegations of irreparable harm seemspeakto the damageto the
Lusk Creek and JacksonHole areas.
2.
Permanentin_junction
Under the traditional standard for issuing an injunction, the Court must find that:
(1) the plaintiff has succeededon the merits; (2) the plaintiff does not have an adequate remedy at
law or will suffer irreparable harm without an injunction; (3) the balanceof harms between the
parties favors entering the injunction; and (4) the entry of the injunction will not harm the public
interest. Plummer v. Americal1 hlstitute of Certified Public ACcoul1talus,97 F.3d 220,229 (7th
Cir.1996); Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273, 274 (7th Cir.1992) Branson
v. West, 1999 WL 1186420, 11 (N.D. Ill. 1999.) In deciding whether to issue an injunction,
courts may apply traditional equity principles, such as the nature of the suit and the enforceability
of an injunction.
In the context of a permanentinjunction, the Court may use its equity powers to flexibly
25
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provide an appropriate remedy. In exercisingthis "sound discretion, courts of equity should pay
particular regard for the public consequencesin employing the extraordinary remedy of
injunction." Wisconsin)). Weinberger,745 F.2d412, 425 (7th Cir.1984). Traditional equity
standards govern whether or not to grant injunctive relief in a NEP A case. See Conservation Law
Foundation, Inc. v. Busey, 79 F.3d 1250, 1271 (1st Cir.1996)~ Sierra Club )). Marsh, 872 F.2d
497,503-04 (1st Cir.1989).
Courts traditionally regard injunctions as extraordinary remedies and do not routinely
grant them. "Injunctive relief is a drastic remedyand courts should proceed with caution in
granting such relief." ProgressDev. Corp. v. Mitchell, 182 F.Supp. 681, 711 (D.C. Ill. 1960),
aff'din part, rev 'din part, 286 F.2d 222 (7ili Cir. 1961). Consequently, the Court usually will
refuse to exercise its equity jurisdiction unlessthe right to suchrelief is clear. Historically and
currently, the main prerequisite to obtaining injunctive relief involves the Court finding that
plaintiff is being threatened by some injury for which he has no adequate legal remedy. 5a Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2942. Although courts have
greatly expandedthe granting of injunctive relief in recent years, the Court remains convinced that
still the right to such extraordinary relief"must be clear, the injury impending or threatened, so as
to be averted only by the protecting preventive process of injunction~ but that will not be awarded
in doubtful cases, or new ones, not coming within well establishedprinciples." Id
In keeping with the general reluctance offederal courts to exercise their equitable
discretion and award injunctions in the absenceof a compelling need for that form of relief,
plaintiff must demonstrate that there is a real danger that the act complained of actually will take
place. There must be more than a mere possibility or fear that the injury will occur. Id. The
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potential injury must be a reasonable possibility and not speculative. City of Los Angeles v.
Lyons, 1983, 103 S.Ct. 1660,461 U.S. 95, 75 L.Ed.2d 675. Courts do not and will not grant
injunctions againstprospective violations which may never occur. In other words, the irreparable
injury must be actually threatened, not presumed,and actual, not merely prospective. Courts
generally and this Court in particular, will not issue an injunction against an alleged illegal or
wrongful activity, especiallyagainst a federal agency, when stepshave been taken both by the
Court and the agencyto rectify misunderstandingsand the parties have expresseda good faith
intention to follow regulations. SeeMagtab Publishing Corp. 11.Howard, 169 F. Supp. 65 (D.C.
La. 1959); Wright & Miller § 2942. Suchgood faith intentions are always reviewable by this
Court under its power to enforce its Orders.
In addition, courts generally are more reluctant to grant a mandatory, or affirmative,
injunction than a prohibitory, or negative, one. party. Dahl v. HEM Pharmaceuticals Corp.,
C.A.9th, 1993,7 F.3d 1399; Jackso17v. National Football League, 802 F. Supp 226 (D.C.
Minn. 1992).
It is on this issue that Glisson's requestfor injunctive relief fails for two reasons. First, the
Court is not convinced that the FS will act in violation of statute or regulations in the future.
Therefore, what is missing is the impending threat of actual, real injury to the plaintiff. Even if the
Court assumes(without making an actual finding) that the FS in the past has allowed outfitters
and guides on the SNF without proper permits, the Court does not believe that there is a
reasonableprobability that it will do so in the future. "Even where past violations of law are
admitted, an injunction should not be issuedunless there is a reasonablelikelihood of a violation
of the law in the future. ..It is not sufficient grounds for the issuanceof an injunction that
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injurious acts nlay possibly be committed. There must be at least a reasonableprobability. ..and
there must be more than mere fear or apprehension." First Nat. Bal1k ill Billillgs v. First Bank
Stock Corp., 197 F. Supp 417, 428 (D.C. Mont.1961), aff'd all other grounds, 306 F.2d 937 (9th
Cir. 1962). Therefore, the actual, real threat of irreparable injury does not exist.
The Court recognizes that the primary "threat" of which the plaintiff speaksis the
environmental damageto the SNF causedby unauthorized use of user-createdtrails by
equestrians. The plaintiff recognizesand acknowledged in open court, however, that authorized
use of the SNF by equestriansis not within the purview of this Court nor this suit. Consequently,
any threatened irreparable injury associatedwith this litigation comes solely from the non-issuance
of SUP's by the FS. The Court does not believe that the FS will ignore its regulatory duty or fail
to comply with the Court's Order that it fully and completely adhereto regulations regarding the
issuanceof SUP's. Becausethe Court does not believe that there is a reasonableprobability at
this point that the FS will not properly require and issue SUP's, the Court cannot find irreparable
injury is reasonablythreatened. Therefore, the actual, real threat of irreparable injury does not
exist to warrant an injunction, either preliminary or permanent.
Secondly, courts typically enter preliminary and permanentinjunctions to preserve the
status quo. Jordal1 v. Wolke, 593 F.2d 772, 774 (7thCir. 1978). In this case,however~ the
plaintiff really asks the Court to issue an affirmative, or mandatory, injunction, mandating that the
FS comply with its existing regulations. Black's Law Dictionary defines "mandatory injunction"
as: "One which (1) commandsthe defendantto do some positive act or particular thing; (2)
prohibits him from refusing (or persisting in a refusal) to do or permit some act to which the
plaintiff has a legal right; or (3) restrains the defendant from permitting his previous wrongful act
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to continue operative, thus virtually compelling him to undo it. Black's Law Dictionary 705 (6th
ed.1990). Because the injunctive relief requestedin this suit would require the FS to affirmatively
act to ensure that its regulations are followed, the Court considersthe request as one for a
mandatory injunction.
\
"Mandatory injunctive relief is a harsh remedy that must not be granted lightly. Just
becausemandatory injunctive relief is possible does not mean it is appropriate in a particular
case." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2942. A
court must balance the interests of the parties while remaining cognizant of the practical problems
surrounding an order. ld.; United Statesv. A. & F. Materials Conlpany,Inc.,578 F.Supp. 1249,
1258 (S.D. Ill. 1984). "While ordinarily the function ofa preliminary injunction is to preserve the
status quo pending final determination of the merits after a full hearing, we recognize that there
may be situations justifying a mandatory temporary injunction compelling the defendant to take
affirmative action. However, mandatory preliminary writs are ordinarily cautiously viewed and
sparingly issued." Wolke, 593 F.2d at 774.
Because the issuanceof an injunction mandatingthe FS to act in a certain manner would
entail a large series of acts over an arguablyindeterminate period of time, the Court does not
believe that injunctive relief is appropriate here. Further, and just as importantly, the Court finds
that an injunction under these circumstanceswould be overkill. The Court believes that the
objectives of reminding and requiring the FS to act within its already-existing Congressional
mandates can be achieved without the issuanceof an injunction, which could require excessive
Court resources and time to enforce. Therefore, the Court DENIES the plaintiffs request for a
preliminary and permanent injunction on any and all issuesin this case. Consequently, the Court
29
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feels no need to analyzethe remaining elementsnecessaryfor the issuanceof injunctive relief. In
using its equity powers to flexibly provide an appropriate remedy and within its sound discretion,
the Court finds that traditional equity principles do not warrant injunctive relief in this case.
Becausethe Court finds that injunction relief is not appropriate or warranted due to a lack of a
real, threatened injury, the Court will not addressthe other elements necessaryto prevail on
motions for preliminary and injunction relief requests.
G.
Order FS personnelto identify unauthorized users of the SNF
Glisson also asksthe Court to Order the FS to assignpersonnel to identify those
individuals and entities providing outfitter and guide services to recreationists on the SNF and to
require those providers to obtain SUP's. As stated earlier in this Order, the Court is reluctant to
issue an order allocating personnelwithin a federal agencyand will not do so here. TheCourt
notes that federal regulations alreadymandatethe FS to "[w]ork with other Federal agencies,
State and local authorities, outfitters, and outfitter and guide organizations to ensure that
outfitting and guiding activities are consistentwith applicable laws and regulations and to identify
unauthorized outfitting and guiding activities." FSM 2340.3, 2703, §41.54b; 60 Fed.Reg.
30830,30840. In doing so, FS personnelmust "[fJollow procedures in FSM 5300 in investigating
and taking action to prevent the occurrence of unauthorized outfitting and guiding activities." Id
The Court believes that the languageof these regulations is sufficiently clear that additional
direction from the Court is unnecessaryat this time, especially considering the Court's earlier
Orders in this case. The Court will again ORDER the FS to completely and fully comply with all
applicable and existing policies and procedures in this regard and to take all reasonablestepsto
actively identity unauthorized outfitters and guides on the SNF and to assurethat unauthorized
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outfitting and guiding services are prevented,cited and stopped.
H.
Monitoring of Bear Branch CamQground
Lastly, Mr. Glisson asks the Court to order the FS to assignpersonnelto specificallyI
monitor the Bear Branch Campground to ensureits compliance with relevant statutes and
regulations. Becausethe Court believes that is unnecessaryat this time, the Court declines to so
order. The Court already has ordered the FS to take all reasonableand expeditious steps to solicit
permit applications from outfitter and guide servicesoperating on the SNF. At this time, the
Court believes it must leave the ultimate decisionmakingwith the FS as to whether or not any
individual or businessmeets the definitions of outfitter or guide. The Court does expect,
however, that the FS will in good faith apply the definitions which this Order finds pertinent and
applicable. In addition, as noted above, the FS must regularly monitor for and investigate
suspectedunauthorized use of the SNF and to take action to prevent its occurrence. These
requirements apply to all users of the SNF who meet these definitions, and the Court does not see
the utility in ordering the FS to use its somewhatmeagerstaff allocation to monitor only one
operation, leaving others unscrutinized.
The Court already has strongly suggestedthat Bear Branch Campground would likely be
classified by regulations and other courts as providing outfitter and guide servicesto recreationists
on the SNF, and as such, required to apply for and obtain an SUP from the FS in order to conduct
these activities and services on FS land. 60 Fed. Reg. 30,840-41; see also United States of
America v. Patzer, 15 F.3d 934,939 (10thCir. 1993). Consequently, the Court would expect that
the FS would take a close look at this and all other similar services during this solicitation
process.
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IV
Summa[Y
The Court notes that the objectives of the FS permit policy and procedures at issue in this
litigation are not anathemato and do not favor any particular party in this case. According to the
regulations themselves,these procedureswere instituted not only to protect environmental
resources but also to "foster small businesses,""address concernsof public health and safety" and
"encourage skilled and experiencedindividuals and entities to conduct" these activities (outfitting
and guiding) in a way that ensureshigh quality servicesfor SNF visitors. FSM 2340.3,2703,
§41.53a; 50 Fed.Reg. 30830.
In deciding which entities and individuals receive permits, the FS must "authorize only
those outfitting and guiding activities th~t are consistentwith forest land and resource
managementplans. Id. at §4154b. Once an individual or entity receivesa permit, the FS must
develop specific performance standardsand an operating plan for eachSUP. FSM 2716.5 and
2340.3,2703; 60 Fed. Reg. 30843. In addition, the FS must "[m]onitor authorized operations to
verify compliance with permit terms and conditions," with the option of conducting more frequent
reviews if necessaryto achieve compliance with the original terms and conditions. FSM 2340,
§41.54k.
These regulations are in place to help assurethat all of the objectives are achieved, not to
favor one over another. From the Court's perspective, the permit procedure is not designed to be
a "win-lose" proposition. All sides can achieve reasonablegoals by recognizing the purpose of
the legislation, as well as its limits. The permit policy's objectives are broad, not narrow, and
when implemented and followed correctly, in this Court's opinion, can allow equestrian users,
environmentalists (recognizing that the two terms are not mutually exclusive) and the FS to work
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in harmony. Attempting to circumvent or to too broadly apply these regulations will merely result
in more needlesslitigation and stalemate.
These regulations seekto provide parametersand support for safe recreational use within
National Forest lands, while at the sametime fostering small businessesand proscribing activities
potentially damagingto the environment. Each SUP issuedcontains specific performance
standardsthat holders must uphold in order to retain their permit. These standards are to help
ensurethe public's safety as well as to attempt to protect the natural resourcesused by the permit
holder and his/her customers. Under this permit system,the FS is also charged with monitoring
and reviewing the holder's operations to evaluateand verify the permit holder's compliance with
the terms of the permit. Just as this Court mandatesthat individuals and businessescomply with
all existing statutes and regulations regarding the SNF, the Court also requires that the FS fully
comply with its own regulations.
v.
Conclusion
The Court DENIES the plaintiff's requests for a preliminary injunction (doc. 2). The
Court DENIES injunctive relief as requestedin the complaint and GRANTS declaratory relief as
consistentwith this Order. The Court DENIES the plaintiff's request for costs.
IT IS SO ORDERED.
Dated: February -~~-:
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