Forest Roads & Planning Suit

Keith Hammer's Swan View Coalition and other green groups have joined the Flathead Forest in opposition to our suit.  They requested a change of venue because they would obviously like to get this case in Judge Malloy's court which is virtually owned by Hammer.  Judge Richard Roberts has ruled that this case has national significance and may be tried in his court in Washington, D.C..  >> LEARN MORE <<  ABOUT THIS DECISION IN OUR FAVOR 

MARK L. POLLOT, ESQ.

MONTANAN=S FOR MULTIPLE USE, a not-for-profit organization;

NORTHWEST MONTANA GOLD PROSPECTORS, a not-for-profit organization;

LELAND=S HONDA, a for-profit Corporation

LELAND J. MOORE, an individual;

MONTANANS FOR PROPERTY RIGHTS, a not-for-profit corporation;

CAPITAL TRAIL VEHICLE ASS=N, a not-for-profit organization;

FLATHEAD SNOWMOBILE ASSOCIATION, a not-for-profit corporation;

NORTH AMERICAN WOLF WATCH, a not-for-profit corporation; and

OWENS & HURST LUMBER CO., a for profit corporation;

SENATOR JERRY O=NEIL, Montana State Senator, in his official and individual capacity;

REPRESENTATIVE GEORGE EVERETT, Member, Montana House of Representatives in his official and individual capacity;

FLATHEAD COUNTY;

SANDERS COUNTY; and

FLATHEAD BUSINESS AND INDUSTRY ASSOCIATION, a not-for-profit organization,

Plaintiffs, 

vs. )

CATHY BARBOULETOS, Flathead National Forest Supervisor;

BRAD POWELL, Regional Forester, Intermountain Region;

DALE BOSWORTH, Chief, United States Forest Service;

UNITED STATES FOREST SERVICE, an agency of the United States;

ANNE M. VENEMAN, Secretary, Department of Agriculture, a Department of the United States; and DOES 1-50, )

Defendants. 

1. This action seeks a declaratory judgment, mandamus, injunctive relief, and such other relief as the court deems appropriate requiring Defendants Cathy Barbouletos, Brad Powell, Dale Bosworth, the United States Forest Service (the AForest Service@), the Secretary of Agriculture, and Does 1-50 (jointly ADefendants@) and/or their successors in office to acknowledge and adhere to law, regulation, and procedure in their management of the Flathead National Forest. Specifically, the Defendants have, with respect to the matters set forth below:

2. Defendants= actions, delayed actions, and inactions have, inter alia,

3. Plaintiffs request that this Court issue a Judgment declaring the duties and responsibilities of Defendants in the matters alleged herein pursuant to the Declaratory Judgment Act (28 U.S.C. '' 2201-2202). Such matters include, but are not limited to, the obligations of Defendants to: (a) promulgate and revise Forest Management Plans in accordance with the National Forest Management Act and related statutes and not in derogation thereof; (b) comply with the provisions of other Statutory forest management directives and limitations including, but not limited to, the Sustained-Yield, Multiple-Use Act (16 U.S.C. ' 528, et seq.), the Federal Land Policy Management Act (AFLPMA@) (43 ' 1701, et seq.); the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. ' 801 et seq.; and the Administrative Procedure Act, 5 U.S.C. ' 551, et seq. (the AAPA@), and other federal statutes and regulations as set forth herein below; (c) respect and protect valid existing property rights within the boundaries of the Flathead National Forest; and (d) to consider local needs as required by law. Plaintiffs also request that this court issue such orders as are necessary to:

4. This action arises under the National Forest Management Act, 16 U.S.C. ' 1600, et seq. (ANFMA@); the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. ' 801 et seq.; the Sustained-Yield, Multiple-Use Act (16 U.S.C. ' 528, et seq.); the Federal Land Policy Management Act (AFLPMA@) (43 ' 1701, et seq.); the Administrative Procedure Act, 5 U.S.C. ' 551, et seq. (the AAPA@); the National Environmental Policy Act, 42 U.S.C. ' 4321, et seq. (ANEPA@); U.S. Const., Amendment V, and other federal statutes and regulations as set forth herein below.

5. Defendants= failures to properly follow the law have harmed, and will continue to harm, viable forest species within the Flathead National Forest. Defendants= failures have affected Plaintiffs= recreational, aesthetic, and economic interests and enjoyment of the Flathead National Forest.

6. Jurisdiction is proper in this Court under 28 U.S.C. ' 1331 because this action arises under the Constitution and laws of the United States, the complained-of conduct, unreasonable delay, and failure to act create an actual, justiciable controversy, and the actions of the Defendants are made reviewable under the APA, 5 U.S.C. '' 701-706, and 33 U.S.C. ' 1365, 16 U.S.C. '1540, inter alia, and constitute continuing wrongs. All prerequisites to this Court=s jurisdiction, including but not limited to the exhaustion of administrative remedies, have been met, or are excused in that such acts would be futile.

7. Venue is proper in this Court under 28 U.S.C. ' 1391(b)(2)and (e)(2) in that a substantial part of the events or omissions giving rise to these claims has occurred within the federal judicial District of the District of Columbia, and, further, at least one Defendant resides within the District of the District of Columbia within the meaning of 28 U.S.C. ''1391(e) and further under 33 U.S.C. ' 1365 (suit under this subsection may be brought in the judicial district in which the violation occurs).

8. Plaintiff Montanan=s For Multiple Use (AMFMU@) is a not-for-profit organization representing various community, recreation, and business interests, and resource users in the State of Montana, including the area in and around the Flathead National Forest (Athe Flathead@). Its purpose is to promote the long- and short-term health of, and access to, National Forests and other public lands within Montana, including the Flathead and the preservation of those forests= environmental, recreational, scenic, productive, and aesthetic values. MFMU views protection of forest health and public use and access as being necessary to, among other things, ensure the safety of people and property in or near these forests from wildfires and other hazards associated with poor forest health, preserve these forests= long-term value as a source of renewable resources and recreational opportunity, and it recognizes that healthy forests are also as a source of economic and environmental well-being of the communities affected by them as well as those of the State of Montana and the Nation as a whole.

(a) MFMU members, individually and collectively, have a long-standing and intense interest in the protection of the values and natural resources addressed herein and in access to and use of lands within the Flathead National Forest which has been denied to them by the actions and failures to act of Defendants herein.

(b) Many, if not most, individual and organizational members of MFMU live or are located in, near, or around the Flathead National Forest and they are directly and adversely affected by adverse forest health conditions and lack of access to Flathead National Forest Lands and improper restrictions on multiple use.

(c) Individual members are environmentally affected when streams are affected by ash, soot, dirt, and other substances which are washed into streams as a result of fires, fire damaged timber, or insect infestations which kill or injure trees, and the improper removal of culverts. They are similarly affected by thermal pollution of streams caused by the loss of trees from fires and insect infestation as well as air pollution resulting from avoidable, uncontrolled wildfires and avoidable, uncontrolled propagation and/or loss of trees and the attendant diminishment of wildlife habitat and plant life due to poor forest health. Similarly, they are exposed on a daily basis to the visual effects of aesthetic and scenic damage resulting therefrom and the loss of plants and wildlife that they would ordinarily view and enjoy, as well as the risk to person and property posed by fires in unhealthy forest conditions and both the quantity and quality of their recreational experiences are adversely affected by the current conditions on the Flathead. Their ability to have strong protection programs in their communities are adversely affected by the loss of revenues to the communities caused by improper or unlawful activities or lack of action by the Defendants. Similarly, they are adversely affected by the restrictions placed on their access to and use of lands in the Flathead which have resulted from the actions and inactions of the Defendants herein alleged.

(d) The organizational and business members of MFMU are similarly affected by poor forest health conditions and the lack of access to and ability to use lands in the Flathead. Their ability to operate economically, or at all, is affected by injury to or loss of trees and other resources resulting from poor forest health conditions and/or improper or unlawful actions or lack of action by Defendants. The conditions created by the improper acts of defendants and their improper failures to act and delays in action, such as lack of timber sales, lack of harvest of over-dense, diseased, and/or insect infested trees, among other things, have caused increased fire hazard, loss of jobs and loss of revenue to local governments, schools, the State of Montana, and the United States treasury. In addition, said loss of revenue to local communities, the State, and the Federal government, as well as the poor environmental aesthetic, and scenic conditions created by the actions, inactions, and delayed actions of defendants, deprives MFMU members as well as others living and/or working in the area of the Flathead National Forest, of a safe, clean, and pleasing environment in which to operate and live. The ability of MFMU members to reasonably access and use the Flathead is diminished and the improperly imposed conditions drive industry and jobs from the area. MFMU members and/or their employees, customers, or clients are deprived of their jobs and quality of life.

(e) MFMU members have real and personal property in the Flathead area which is at significant risk of damage and destruction from the conditions which currently exist in the Flathead as a direct result of the conduct of Defendants alleged herein and the individual members of MFMU are similarly at risk of their health and safety as a result thereof and have been deprived of their ability to use and enjoy significant areas of the Flathead, which use they would make but for the actions and inactions of Defendants alleged herein below.

(f) MFMU, by and through its members, has actively participated both informally and formally through the Forest Service=s rulemaking, administrative, other regulatory and project decisionmaking processes addressing the Flathead National Forest. To the extent that Defendants fail to follow those processes and to adhere to the laws, regulations, and policies governing their conduct, MFMU is deprived of its ability and right to participate meaningfully in those processes and suffers, as well, the injuries described in this paragraph.

(a) NMGPA=s members have participated both informally and formally in the Forest Service=s rulemaking, administrative, other regulatory and project decisionmaking processes addressing the Flathead National Forest. To the extent that Defendants fail to follow those processes and to adhere to the laws, regulations, and policies governing their conduct, NMGPA and its members are deprived of their ability and right to participate meaningfully in those processes and suffers, as well, the injuries described in this paragraph.

10. Plaintiff Leland=s Honda-Suzuki, Inc. (ALELAND=S@) is a for-profit business in Kalispell Montana which sells recreational vehicles in the area of the Flathead National Forest. Its customer base is located mostly in the area of the Flathead National Forests and many of them use the Forest for recreational and esthetic purposes. Because of the unlawful and improper actions, failures to act, and delays in action of Defendants herein, Leland=s customers and employees are denied reasonable access to, and use of, the Forest. As a result, fewer of the persons living in the area buy vehicles or use their existing vehicles from Leland=s less than would ordinarily be the case. Further, plaintiff is informed and believes, because of the failure of the Defendants to act in a lawful, timely, and proper manner, which has reduced not only the ability of individuals to use the Forest, but also the desirability of using the Forest which results in a decrease in local and tourist use of the Forest, the overall economy of the area surrounding the Flathead National Forest has suffered, also reducing the number of customers who would otherwise buy products or use the services provided by Leland=s. Still further, Defendants= unlawful and improper actions, failures to act, and delays in action, have created and are exacerbating as time passes, deteriorating forest health and esthetic conditions (including overgrowth of timber, increased plant disease, increased insect infestation, and decreased wildlife populations). Defendants have created a fire hazard which poses a direct and substantial threat to the physical property owned by Leland=s Honda.

11. Plaintiff Leland J. Moore resides in Flathead County, Montana, in the area of the Flathead National Forest in Montana and has resided there for approximately 59 years. He is the owner of Leland=s Honda-Suzuki, Inc., in Kalispell, Montana. His business is at present both a source of income to him and a source of employment to other families in the community.

13. Plaintiff Capital Trail Vehicle Association (ACTVA@) is a not-for-profit organization whose purpose is the advancement of use of trail vehicles in a safe, enjoyable, and environmentally responsible manner. Members of CTVA have enjoyed use of roads and trails in the Flathead National Forest and live and/or recreate in and/or around the Flathead National Forest. The actions and inactions of Defendants alleged herein have deprived the CTVA and its members of their legally protected right to participate in the decisions affecting use of the Flathead National Forest, have removed from access and use roads and trails suitable for trail vehicle use without authority and in violation of law which would have been used by CTVA members but for said actions and inactions, and have caused significant deterioration of the Flathead National Forest and its environs, including its aesthetic values, wildlife and fish habitats, overall forest health, and its suitability for multiple uses. Further, the actions and inactions of Defendants alleged herein have created conditions in and around the Flathead National Forest which render use by CTVA members of such areas as are left open to them more hazardous. For example, overgrowth of timber land, accumulations of dead and dying trees, the spread of insect infestations and tree diseases not only reduce the aesthetic value of the Forest, it creates a significant threat of catastrophic fire and other physical hazards which threaten the safety and well-being of CTVA members using the Forest, regardless of whether they are using vehicles or hiking.

14. Plaintiff Flathead Snowmobile Association (AFSA@) is a not-for-profit corporation, the purpose of which is to advance the environmental, recreational, and other interests of its members and to help plan and carry out recreational activities and activities in support of and to the benefit of the Flathead National Forest. Its members include individuals who live and/or recreate in the Flathead National Forest and surrounding areas and/or intend to do so. The ability of FSA and its members to meaningfully recreate and enjoy the Flathead and the surrounding area have been directly and adversely affected by the actions and inactions of Defendants in that those actions and inactions have caused, and will continue to cause if not redressed, a severe deterioration in the environmental, recreational, and aesthetic qualities of the Flathead and, further, in that Defendants= actions and inactions have damaged or destroyed habitat for species and have or have the potential for causing harm to species that FSA members enjoy seeing. Further, the health and safety of FSA members and the safety and value of the property owned by FSA members in the Flathead National Forest area are jeopardized in the same manner as those of other plaintiffs as alleged herein above.

15. Plaintiff North American Wolf Watch (ANAWW@) is a not-for-profit corporation whose purpose is the advancement environmental protection and enjoyment of the Forest and surrounding area. A severe deterioration in the environmental, recreational, and aesthetic qualities of the Flathead has occurred as a result of Defendants= actions and inactions, which have damaged or destroyed habitat for species and have, or have the potential for, causing harm to species that NAWW members enjoy seeing. Further, the health and safety of NAWW members and the safety and value of the property owned by NAWW members in the Flathead National Forest area are jeopardized in the same manner as those of other plaintiffs as alleged herein above.

16. Plaintiff Owens & Hurst Lumber Co. (AOwens@) is a for-profit business whose business is timberland owner, sawmill owner and operator, and employer of logging contractors, mill workers, foresters, technicians, and office/business staff. It is located in Eureka, Montana, and conducts its business in such a way as to achieve effective natural resource production while protecting and enhancing ecosystems. It concentrates on achieving good natural resource management decisions which sustains the local communities economically while ensuring that those communities can enjoy their natural resource heritage including clean air, clean water, productive soils and viable wildlife populations.

(a) Owens= owner and employees live and work in and around the Flathead National Forest and enjoy its environmental, aesthetic, resource, and recreational benefits on a daily basis, which enjoyment has been diminished or eliminated as a result of Defendants unlawful actions, failures to act, and delays in action. Owens= interests have been directly and immediately affected by Defendants= conduct as alleged herein.

(b) Owens= owner has forested real and personal property in the Flathead area which is at significant risk of damage and destruction from the conditions which currently exist in the Flathead as a direct result of the Defendants= conduct.

(c) Owner Owens business is the economic base for his employees which is directly threatened by the actions, inactions, and delays in action of defendants.

17. Plaintiff Jerry O=Neil is a duly elected Montana State Senator for Montana Senate District Number 42. This district includes the north-east corner of Flathead County, Montana. A portion of the Flathead National Forest is in Senate District 42. He represents constituents with an interest in the use of National Forests within Montana, including the Flathead National Forest, and in the economy and environmental protection of the area including the Flathead National Forest. He is called upon, in the course of his duties, to consider environmental issues and economic issues affecting the citizens of Montana, including those affected by the decisions of Defendants.

(a) Plaintiff O=Neill, both in his personal and official capacity has an interest in the quality of the environment in the State of Montana in general and the Flathead National Forest particularly and has the right to participate in the public processes mandated by the National Forest Management Act and other statutes.

(b) When the Forest Service was constructing Forest Roads in the Flathead National Forest during the last forty years, his constituents and he complained that the Forest was spending to many tax dollars on said roads. In order to gain support from Plaintiff O=Neil and others, the Forest Service assured Plaintiff O=Neil and the public that the roads would remain open to the public for the access of the Forest for multiple users.

(c) The illegal and improper decommissioning, obstruction, obliteration, and closure of roads has harmed both Plaintiff O=Neil in his individual capacity and the interests of the constituents he represents.

(d) Plaintiff O=Neil also has a personal interest in the preservation of the lynx, an endangered species. He is informed and believes that the actions of Defendants alleged herein are detrimental to the lynx and the actions, failures to act, and delays in action of Defendants injures him. Similarly, the economic injury to the State and the local governments affected by Defendants is a matter of concern to him for a variety of reasons, not the least of which is the loss of revenues from the Forest and the direct and indirect effects of Defendants= actions.

19. Plaintiff Flathead County contains approximately 5,098 square miles, a substantial portion of which is federally-owned, including lands administered by Defendants. Its population as of the 2000 census was 74,471. The economic well-being of the County is dependent, in part, on economic activity connected to the use of the Flathead National Forest, including tourism, resource industries, and the like. The custom and culture of Flathead County is closely linked to the availability of the Forest for multiple uses. Reduction in the availability of the Forest, whether by regulation, closure of roads and rights-of-way, or by damage to Forest lands and resources, for such uses, including, among other things, resource extraction, agriculture, hunting, fishing, recreation, and the like, has a significant adverse impact on Flathead County. The Flathead County government has substantial responsibility for economic, public health and safety protection, and environmental issues within the County and has a legal right to participate in federal regulatory processes. Defendants= actions, inactions, and delays in actions have had adverse impacts on the environment and economic well-being of the County and continue to pose significant public health and safety, economic, and environmental threats to the County and its residents. For example,

20. Plaintiff Sanders County contains approximately 2,762 square miles, of which approximately 51 percent of which is federally-owned (including lands administered by Defendants), and only 30 percent of which is privately owned. Its economic well-being is therefore highly dependent on a healthy, accessible Forest Its population as of the 2000 census was 10,220. Its per capital money income in 2000 was $14,593. The economic well-being of the County is dependent, in part, on economic activity connected to the use of the Flathead National Forest, including tourism, resource industries, and the like. The custom and culture of Sanders County is closely linked to the availability of the Forest for multiple uses, even more so since it contains no significant urban land. Reduction in the availability of the Forest, whether by regulation, closure of roads and rights-of-way, or by damage to Forest lands and resources, for such uses, including, among other things, resource extraction, agriculture, hunting, fishing, recreation, and the like, therefore has a significant adverse effect on the quality of life within Sanders County and the safety and well-being of its residents. The Sanders County government has substantial responsibility for economic, public health and safety protection, and environmental issues within the County and has a legal right to participate in federal regulatory processes. Defendants= actions, inactions, and delays in actions have had adverse impacts on the environment and economic well-being of the County and continue to pose significant public health and safety, economic, and environmental threats to the County and its residents. For example, among other things,

21. Plaintiff Flathead Business and Industry Association (FBIA) is a not-for-profit organization representing approximately 150 businesses local to the Flathead National Forest. Its mission is Aapplying business metrics to community, educational, and political institutions.@ It members are directly and adversely affected by Defendants failure to reasonably comply and implement all laws governing the management of the Flathead National Forest. Its member businesses relying on Defendants to act in a proper, lawful, and predicable manner with regard to the Flathead. Where Defendants behave as alleged herein, the unhealthy forest conditions which result, the denial of access and multiple use, and loss of aesthetic and environmental values in the area as well as denial of recreational opportunities on the Forest has resulted in business losses to FBIA members and a consequent decrease in their ability to live in and enjoy the Flathead National Forest area. Likewise, the improper actions, inactions, and delays in action by the Defendants has resulted in conditions within the Forest including, without limitation, increased fire risk that poses a direct and immediate threat to the safety of FBIA members and their properties. Many, if not most, of the businesses who are members of the FBIA rely on the proper management of the Flathead National Forest for multiple use and they are immediately, directly, and adversely affected by the failure of Defendants to act in a timely and proper fashion.

25. Defendant Forest Service is an administrative agency of the United States within the Department of Agriculture, and is charged with managing the resources of the Flathead National Forest within the bounds of applicable federal law and regulation. Throughout this action, the term AForest Service@ may include the Flathead National Forest, the Northern Region of the Forest Service, or the National Office of the agency, with offices in Washington, D.C.

27. Like other National Forests, management of the Flathead National Forest is governed by a complex of statutes and regulations. These include, among others, the National Forest Management Act (NFMA), the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), the Multiple-Use, Sustained-Yield Act, the Small Business Regulatory Enforcement Fairness Act (SBREFA), and the Federal Land Policy and Management Act (FLPMA) as well as the Forest Service=s own regulations, manuals, handbooks, and other directives. The following statutes are among the principal, but not the only, statutes and regulations at issue herein.

28. NFMA: The NFMA requires the Forest Service to engage in Land and Resource Management Planning, including generation and revision of a Forest Plan according to the public process described, in part, at 36 C.F.R. part 219 and to take actions to protect and enhance the productivity of forests. The NFMA mandates that there be on Aall forested lands in the National Forest System ....maintained an appropriate forest cover with species of trees, degree of stocking, rate of growth, and conditions of stand designed to secure the maximum benefits of multiple use sustained yield management in accordance with land management plans.@ 16 U.S.C. ' 1601(d). Economic considerations must be included in such planning (16 U.S.C. '1604(b), 1604(g)(3)(A)) and the use of salvage and sanitation harvesting to prevent loss of timber from imminent danger of insect or disease attack is specifically recognized and protected. See, e.g., 16 U.S.C. '' 1604(m)(1), 1611(b). This is in accordance with the basic policy direction set by Congress in Pub. L. 96-514, 94 Stat. 2984 which provides that Aforests and rangelands should be managed to maximize their net social and economic contributions to the Nation=s well-being, in an environmentally sound manner@ (' 1), that Athe productivity of suitable forested land, in all ownerships, should be maintained and enhanced to minimize inflationary impacts of wood product prices on the domestic economy and permit a net export of forest products by the year 2030" (' 3), and, particularly, that Aforest and rangeland programs should be improved to more adequately protect forest and rangeland resources from fire, erosion, insects, disease, and the introduction of noxious weeds, insects, and animals. (' 5).

(a) The NFMA requires the Forest Service to seek appropriations for repair and treatment of injured or sub-optimally producing forest lands. 16 U.S.C. '' 1601(d) (This is the second of two subsections (d), Congress having enacted two subsections (d)); 1606.

(b) The NFMA reaffirms the principle of multiple use and sustained yield and requires that the National Forest System be managed accordingly.

(c) Forest Service regulations and directives acknowledge these obligations. See, e.g., 36 C.F.R. Part 219; Forest Service Manual Part 2400.

(d) The NFMA also provides, in 16 U.S.C. ' 1604, that the Forest Service develop forest management plans. Specifically, among other things, the NFMA:

(i) Imposes on the Forest Service a mandatory duty to develop, maintain, and revise Forest Plans (' 1604(a));

(ii) Requires that said plans provide for multiple use and sustained yield of products and services in accordance with the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. '' 528-531) and must, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness (' 1604(e)(1));

(iii) Provides that the plans must Aform one integrated plan for each unit of the National Forest System, incorporating in one document or one set of documents, available to the public at convenient locations, all of the features required by this section@ (' 1604(f)(1));

(iv) Mandates that Forest Plans must Abe prepared by an interdisciplinary team . . . based on inventories of the applicable resources of the forest@ (' 1604(f)(3));

(v) Provides that Forest Plans Abe amended . . . after final adoption after public notice@ and if the amendment would Aresult in a significant change in such plan@ the amendment must A be amended in accordance with the provisions of subsection (d) and (f) [of 16 U.S.C. ' 1604] (' 1604(f)(4));

(vi) Requires complete revision A(A) from time to time when the Secretary finds conditions in a unit have significantly changed, but at least every 15 years, and (B) in accordance with the provisions of subsections (e) and (f) of [Section 1604] and public involvement comparable to that required by subsection (d) of [Section 1604] (' 1604(f)(5)) (emphasis added);

(vii) Mandates that the USFS promulgate regulations to implement ' 1604 and that it make sure that NEPA is complied with and which, inter alia, ensure that economic considerations are taken into account and that multiple uses are protected (' 1604(g)(1) and (3) respectively; and

(viii) Provides that everything else (resource plans, permits, contracts, and other instruments) must be consistent with the Forest Plan (' 1604 (j)).

(e) Pursuant to 16 U.S.C. ' 1604, in developing Forest Management plans the Secretary must identify lands not suitable for timber production considering physical, economic, and other pertinent factors and prohibit timber operation on that land for 10 years but he or she must review that decision Aat least@ every 10 years and must return them to timber production when conditions have changed enough to make them suitable for such production (' 1604(k)). Emphasis added.

29. APA: The APA requires federal agencies to conduct their business in the open in such a manner as to ensure that the public is fully informed as to the regulations and decisions by said agencies and departments; that there is an orderly process for the promulgation and publication of rules, decisions, and adjudications which protect the decisionmaking process against arbitrariness and bias; and the like. 5U.S.C. '' 551-559. Similarly, the APA ensures a right of judicial review of agency actions for those persons Aaggrieved by@ those actions. 5 U.S.C. '' 701-706. Specifically, a person aggrieved by agency action may submit the matter to a reviewing court which must Adecide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.@ 5 U.S.C. ' 706. Such review is available to both Acompel agency action unlawfully withheld or unreasonably delayed@ and to set aside agency actions, findings and conclusions if they are: (a) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (b) unconstitutional; (c) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (d) were taken without compliance with procedure; (e) are unsupported by substantial evidence; or (f) were unwarranted by the facts (where the facts are subject to de novo review. Agency conduct which involves or implicates any and/or all of the statutes and regulations at issue herein is reviewable under the APA and may be reviewable under other provisions of law.

30. NEPA: NEPA requires federal agencies to perform an environmental analysis before undertaking any Amajor federal action@ subject to certain exemptions and exceptions. Its purpose is to Afoster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and to fulfill the social, economic, and other requirements of present and future generations of Americans.@ 42 U.S.C. ' 4331(a). It requires Athe Federal Government to use all practicable means, consistent with other essential considerations of national policy@ to (inter alia) Aassure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings@, and Aattain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences@. 42 U.S.C. ' 4331(b). The appropriate agency must disclose all cumulative effect, economic, social, and environmental, of their proposed actions. Emphasis added.

31. SBREFA: Federal agencies, including the Forest Service, are required to submit a report to each House of Congress and the General Accounting Office before a rule becomes effective, 5 U.S.C. ' 801 et seq. A major rule may not become effective until 60 days after it is submitted to Congress or published in the Federal Register, whichever is later. 5 U.S.C. ' 801(a)(3)(A). Forest Plans pursuant to the NFMA are subject to SBREFA. Although the original forest plan at issue herein was adopted prior to SBREFA=s effective date, subsequent forest plans, whether adopted de facto or de jure are subject to its provisions.

33. R.S. 2477 (42 U.S.C. ' ) and other rights-of-way: The Act of July 26,1866, among other things, granted a right-of-way for the construction of public highways across public lands which had not, at the time, been withdrawn from the public domain. This portion of the Act was later codified as Revised Statute ' 2477 and subsequently recodified at 43 U.S.C. ' 932. R.S. 2477 constituted an offer of dedication of easements across unreserved, unappropriated federal lands which could be accepted in either of two ways: (a) by a positive act of appropriate officials manifesting a clear intent to accept the grant; or (b) by public use for such a period of time and in such a manner as to prove that the grant has been accepted. Although R.S. 2477 was repealed in the Federal Land Policy Management Act (FLPMA), 43 U.S.C. ' 1701, et seq., on October 21, 1976, the repeal only prevented new rights-of-way from being established under R.S. 2477. Such rights-of-ways, having already been established, were constitutionally protected and recognized as still valid by FLPMA as valid existing rights which were undisturbed by FLPMA. (ANothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this act.@ FLPMA ' 701(a), 43 U.S.C. 1701. Although FLPMA provides a procedure by which such valid, existing rights-of-way could be surrendered in exchange for a new right-of-way, where they were not so surrendered, they remain valid. Similarly, as with any other publically owned right-of-way across federal land not owned by the United States (where there was no reservation of such an ability in the grant), the United States could not merely void the right-of-way, even if the land was later withdrawn or transferred out of federal ownership. Neither is mere non-use sufficient to find abandonment of such rights-of-way. Further, the Avalid existing rights@ language in FLPMA and other federal laws, including those affecting the Flathead National Forest, prohibit federal regulations from going so far as even to cause an inverse condemnation of such rights. See Utah v. Andrus, 486 F.Supp. 995, 1010 (D. Utah 1979); Adams v. United States, 3 F.3d 1254, 1259 (9th Cir. 1993) (citing Utah v. Andrus with approval); Symposium on Valid Existing Rights, 5 J. Min. L. & Pol=y 318 (1989-90); Jan G. Laitos and Richard A. Westfall, Government Interference with Private Interests in Public Resources, 11 Harv. L. Rev. 1 (1987). No law authorizes defendants to close or otherwise interfere with R.S. 2477 rights-of-way other than to regulate to ensure that use and maintenance of the right-of-way does not exceed the scope of the right-of-way.

39. On or about January 22, 1986, the Flathead National Forest issued its Record of Decision adopting a Forest Management Plan for the Flathead, approximately 3months after the date set for the adoption of an initial plan of September 30, 1985 (16 U.S.C. ' 1604(c)). Almost before the ink had dried on the original Plan, the Flathead began to adopt a series of Aamendments@ to the Plan, which amendments to date, not including Aregional amendments (i.e., amendments involving all of the National Forest units in the area, of which there have been at least two since January, 1986) include approximately 23 amendments (an amendment rate of approximately 1.5 amendments per year), which amendments, cumulatively, have resulted in a substantial change to the Plan adopted in January, 1986. They closed off to public access vast portions of the forest, prevented timber harvest in areas clearly suitable for harvest, prevented timber salvage in a timely fashion, and otherwise resulted in substantial modification of the uses allowed in the Forest as a whole and in specific areas of the Forest.

40. None of the 23 amendments alleged herein above were accompanied by the comprehensive scientific review and public participation required by NFMA, 16 U.S.C. ' 1604 and, at no time or in any decision document or review document have defendants considered the cumulative impact of the 23 amendments, preferring instead to consider them in isolation to avoid their planning responsibilities.

41. As previously alleged, NEPA requires federal agencies to perform an environmental analysis before undertaking any Amajor federal action@, including Forest Planning regardless of whether an entire plan is being considered, or significant amendments to that plan. The purpose of NEPA is to B while creating and maintaining conditions under which man and nature can exist in productive harmony B ensure the fulfillment of Athe social, economic, and other requirements for present and future generations of Americans.@ 42 U.S.C. ' 4331(a). NEPA does not exist and is not applied in a vacuum. It supplements other statutes which must be complied with. Federal agencies are required to apply NEPA Aconsistent with other essential considerations of national policy@ and to do it Awithout degradation, risk to health or safety, or other undesirable and unintended consequences@. 42 U.S.C. ' 4331(b). Emphasis added. The NFMA invokes NEPA when it requires Defendants to review Forest Plan revisions and significant amendments. Defendants did not do so. They attempted to avoid NEPA by making amendments which they knew that, taken together, would in fact constitute a major amendment or even revision of the plan requiring a NEPA review. NEPA forbids piecemealing a federal action to avoid NEPA review. Indeed, Defendants did not perform even a programmatic Environmental Impact Statement pursuant to which it could perform more limited reviews of actions taken in pursuit of the program since the cumulative impact of the amendments was to make a substantial change in the project, in this case the Forest Plan. Indeed, by implementing site specific obliteration of roads in areas designated by the current Forest Plan as suitable for long term sustained harvest with roads, the Defendants have made site specific changes to the designated long term forest land use without public disclosure of effects or using NFMA mandated processes for change.

42. At the same time as the Defendants have effectively revised the Plan through piecemeal amendments, while avoiding the requirement of comprehensive planning and public review (which result Plaintiffs are informed and believe was intended by Defendants), they have failed to perform the revision required by law every 15 years at a minimum. NFMA, as alleged above, mandates a complete revision of the Forest Plan at least every 15 years, and sooner if a substantial change in conditions has occurred such that a earlier revision should be undertaken. Plaintiffs are informed and believe that the 15 year requirement means that the revision should be completed within the 15 year period, and not that the Defendants can begin contemplating doing a revision some time after the 15 year period has expired. As of the date of this Complaint, almost 18 years after the adoption of the current Plan, Defendants have not taken any substantial, concrete steps, such as, among other things, public scoping, even to begin a revision of the plan. Yet the cumulative nature of the amendments undertaken by Defendants indicate, at the least, either that circumstances had already sufficiently changed that the revision process should have begun well before the present date. At the same time, Defendants= failure to revise the Plan before now seems to indicate, at the least, that they believed that no revision was necessary because they had already addressed significant changed circumstances through their piecemeal amendments.

43. At the same time, SBREFA, as alleged above, requires Defendants to submit a report to both houses of Congress and the General Accounting Office (AGAO@) on each major rule. The rule cannot become effective until 60 days have passed from the time it was so submitted or it was published in the Federal Register, whichever is later. 5 U.S.C. ' 801(a)(3)(A). However, the only fair reading of SBREFA is that a major rule cannot be effective at all, regardless of publication in the Federal Register, if it has not been submitted to Congress and the GAO at all. While the Forest Plan adopted in 1986 did not fall under SBREFA because SBREFA was not then effective, subsequent amendments and revisions do fall under SBREFA as they are major rules. Plaintiffs are informed and believe that Defendants never submitted any of the nearly 1.5 amendments per year to Congress or the GAO.

44. As a part of their continuing course of conduct and pattern and practice of adopting amendments and taking other actions in the Forest inconsistent with the Forest Plan and the statutory requirements for planning and regulating, Defendants embarked on a plan of road closures which knowingly and intentionally made less and less of the land in the Forest available and Asuitable@ for timber harvest (contrary to NFMA, which requires not only that land not be kept out of production more than necessary because land is temporarily unsuitable, but actually requires Defendants to take affirmative action to ensure that unsuitable land be made suitable, see 16 U.S.C. ' 1601(d). In addition, a number of the roads closed or which Defendants intend to close are roads over which the Forest Service has no authority to close, or even to regulate other than to ensure that their use and maintenance are within the scope of the road rights-of-way over which they run. These roads or public rights-of-way created pursuant to R.S. 2477, alleged above, in that they were created by public use consistent with R.S. 2477 from the late 1890s to the early 1900s and prior to the time that the land comprising the Flathead National Forest was withdrawn from the public domain for use as a National Forest. Plaintiffs are informed and believe that these roads include, among others, in just one Ranger District, the Hungry Horse Ranger District, Road Numbers 38, 570, 879, 895, 896, 1624, 1625, 1625A, 1631, 1632, 1636, 2834, 2837, 2838, 2839, 5305, 5309, 5333, 5333Y, 5334, 5338, 9778, 9783, 9797, 9854, 9881, 10176, 10326, 10327, 11025, and 16248, and Trail nos. 1, 7, 8, 62, 63, 68, 134, 187, 387, and 717. A similar number of roads and trails closed, or targeted for closure, by Defendants exist in each of the other Ranger Districts within the Forest. In addition, one of the Regional Plan Amendments imposed by the Northern Regional Forest on the Flathead in January 2001 targets additional areas and similarly situated rights-of-way for closure to Off Highway Vehicles though Defendants lack the authority to do so.

49. Defendants closed roads and intend to close more roads which are required to ensure that adequate protection and care of the Forest can proceed. This prevents the harvest of timber in a manner required by the NFMA, and, in fact, will result in more and more of the Forest resources being lost to disease, fire, overgrowth, and other environmental degradation. Their actions and failures to act have resulted, and will continue to result, in a loss of timber and revenue therefrom which is damaging not just to the local economy and Defendants= duties to the local communities but also to the specific requirements of the NFMA to manage Aforests and rangelands . . . to maximize their net social and economic contributions to the nation=s well being, in an environmentally sound manner@, to protect and enhance Athe productivity of suitable forested land, in all ownerships . . . to minimize inflationary impacts of wood product prices on the domestic economy and permit a net export of forest products by the year 2030", and, particularly, to Aadequately protect forest and rangeland resources from fire, erosion, insects, disease, and the introduction of noxious weeds, insects, and animals.@

51. The Forest=s actions and inactions described above are made reviewable through the APA in that they are arbitrary, capricious, or otherwise not in accordance with law; are not supported by substantial evidence, and were taken without observance of procedure required by law, or otherwise in violation law. Plaintiffs have and will continue to experience injury as alleged herein above absent judicial relief.

55. The Forest=s actions and inactions described above are made reviewable through the APA in that they are arbitrary and capricious, or otherwise not in accordance with law and in that they were taken without observance of procedure required by law and constitute agency action unlawfully withheld or unreasonably delayed, in violation of the APA, 5 U.S.C. ' 706(1).

60. As alleged, the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. ' 801 et seq., requires federal agencies to submit a report of proposed rules to each House of Congress and the Comptroller-General before it may become effective. A major rule may not become effective until 60 days after it is submitted to Congress or published in the Federal Register, whichever is later. This requirement is designed to keep Congress informed about rulemaking activities of federal agencies and to allow for congressional review of rules and to protect the regulated public from inappropriate or otherwise harmful regulation, inter alia..

(a) The Forest Service specifically denies the applicability of 5 U.S.C. ' 801 et seq. to management plans, stating that they are not regulations and are therefore not Asubject to the requirements of 5 U.S.C. ' 801.@ It has gone so far as to state this directly to the Comptroller General. Letter dated June 18, 1997 to Comptroller-General from Forest Service Chief.

(b) The Comptroller-General issued an opinion on July 3, 1997 that took issue with the Forest Service=s claim that management plans are not subject to the requirements of 5 U.S.C. ' 801. The Comptroller-General concluded that land and resource management plans do constitute a Arule@ as defined in 5 U.S.C. ' 804(3) and are subject to the requirements of 5 U.S.C. ' 801, et seq. Comptroller-General opinion B-275178.

(c) The Forest Service and Defendants herein have declined to alter their position on the applicability of 5 U.S.C. ' 804(3) to Forest Plans.

61. As a federal agency within the Department of Agriculture, the Forest Service is bound by 5 U.S.C. ' 801 et seq.

62. The Forest Service failed to submit their management plans and related matters to Congress as required by 5 U.S.C. ' 801 et seq., claiming that it did not consider land and resource management plans to be subject to these requirements.

68. Award Plaintiffs their reasonable fees, costs, and expenses of litigation as allowed by the Equal Access to Justice Act, 28 U.S.C. ' 2412, et seq., and other laws or rules of court;