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PARTIES CAUTIOUSLY CONSIDER SHAWNEE FOREST PROPOSAL

BY JIM MUIR
THE SOUTHERN

Thursday, March 3, 2005 8:27 AM CST

Editor's Note: This is the second of a three-part series concerning the unconventional approach that Judge J. Phil Gilbert took in trying to broker an agreement and settle lingering legal disputes concerning use of parts of Shawnee National Forest.

BENTON -- After 13 years and 17 different lawsuits Judge J. Phil Gilbert realized that desperate times sometimes call for desperate measures.

That rationale is what prompted Gilbert to step down in his role as federal judge and assume the role as mediator in the hope of settling long and festering differences between equestrians, environmentalists and the U.S. Forest Service regarding use of Shawnee National Forest.

"It was a risky decision," said Gilbert. "But the possibility of bridging decade-old divides between contentious factions and forestalling future time and resource consuming litigation it was worth the risk." 

The legal conflict involves an area that is located in Eddyville, near Lusk Creek Wilderness - an area that in recent years has witnessed an increasing number of visitors, both horseback riders and hikers that are using the public lands. Seeing it as a boon to the area, tourism groups promoted equestrian use in the area to the point that it became an economic engine for that region. But, with the added equestrian traffic damage was also created, alarming environmental groups. That combination provided a three-way battle that led to lawsuits and counter suits.

The legal battle between the three groups turned into a long and arduous one that has slogged through the federal court system for years. The latest legal action began when the Forest Service's efforts to manage Lusk Creek Wilderness created controversy resulting in a 1999 lawsuit, "Glisson v. U.S. Forest Service. The federal suit, filed by environmentalist Joseph Glisson, alleged that the Forest Service had improperly allowed equestrian use of parts of Lusk Creek Wilderness and equestrian outfitter and guide services to operate without special use permits. The lawsuit got more complicated and prompted the Shawnee Trail Conservancy, a group that includes owners of equestrian campgrounds near Lusk Creek, to enter as a defendant.

Court documents show that the ‘Glisson' lawsuit resulted in revisions in the Forest Service handbook to regulate equestrian campgrounds within the Shawnee National Forest. The case got even more bogged down in November 2002 when two additional environmentalists entered as plaintiffs and asked the court to find the Forest Service in contempt for failing to meet the requirements of the handbook. After numerous hearings the court denied the contempt motion and ruled that the Forest Service had acted "reasonably diligent" in implementing a permitting procedure.

In 2003 court records show that the Forest Service completed the difficult task of establishing a permitting process that included appropriate environmental analysis and rules for permitting outfitters and guides in the Shawnee. The Forest Service then solicited campground owners in the vicinity of Lusk Creek to sign and apply for permits that would allow equestrians outfitters and guide services.

However, only one campground owner was issued a permit, while others including members of the Shawnee Trail Conservancy, refused to seek or accept permits. This action once again prompted environmentalists to ask the court to hold the campground owners and the Forest Service in contempt of court. Gilbert presided over three hearings - Nov. 18 and 29 and Dec. 15 of last year -- with the various groups and realized he was involved in a stalemate that he believed would never be resolved.

Gilbert then took the unprecedented step of taking on the role of mediator in the conflict - a move that included a daylong tour of the area and more than a little legwork, patience and diligence on his part. Gilbert completed his recommendations earlier this week and the warring factions involved are now poring over the proposal.

Prior to finalizing the recommendations Gilbert said he decided to step down from the bench on this particular case because of what he called "the profound depths of the disagreements" and the "inability to trust and communicate" between the parties involved. Less than 48 hours after seeing Gilbert's recommendations those feelings are still apparent. All parties involved are cautious in comments about the longstanding dispute.

One of those involved in the legal wrangling is Linda Granneman, the president of Shawnee Trails Conservancy, a not-for-profit group of equestrians.

Granneman, who only received a copy of the recommendations on Tuesday, issued a prepared statement on behalf of Shawnee Trails Conservancy (STC) and declined to answer any specific questions concerning Gilbert's proposal.

She also emphasized in her statement that her comments are in her role as president of STC and is not associated with the views of any campground owner who is an individual member.

The statement read:

"The Shawnee Trail Conservancy is a non-profit grassroots organization whose mission is to advocate for access for shared use of the Shawnee National Forest while preserving its natural resources. Unfortunately, we have had to be involved in litigation to further that cause. We have always preferred to work with the Forest Service without court intervention even though working with governmental bureaucracies is never an easy task."

"When Judge Gilbert stepped off the bench and became a mediator in this particular case it was a welcome development. As an adjudicator he must rely on attorneys to educate him regarding all the issues of a case. Administration procedures for forests are very complicated. As mediator, Judge Gilbert was able to learn what words cannot convey."

"While the STC is looking to the future and expecting to build a partnership with the Forest Service and the environmentalists so future generations can continue to enjoy the Shawnee National Forest, any comments regarding the actual details of the recommendations will need to be addressed by the campground owners themselves."

Granneman said that campground owners are scheduled to meet Wednesday night to discuss the recommendations made by Judge Gilbert.

John Wallace, of Carbondale, is an environmentalist and an environmental educator who has worked for the past 15 years at Touch of Nature, in Jackson County.

Wallace, who is listed as a plaintiff in the longstanding legal dispute, has been involved in forest issues for the past 15 years. Wallace said he has reviewed the proposal submitted by Gilbert.

"I'm not ready to say that I would endorse it or that I wouldn't endorse it at this time, but I will say that it certainly isn't the end-all," said Wallace. "I did like the fact that he (Gilbert) did say that this is only a beginning. There is no question that this issue is going to go on and in my opinion there needs to be more monitoring and more regulating."

Wallace said he feels that too many equestrians are allowed in Lusk Creek Wilderness, an issue that he says will have to be addressed sooner rather than later.

"I think there has to be some regulations on exact numbers," said Wallace. "The issue is whether or not there is enough information to do that now, but I think caps need to be put on, that sort of things. What is important is to understand the concept of wilderness character and solitude is an aspect of wilderness character. The area is supposed to be managed so that natural resources are not damaged. I think that those aspects have been compromised in the past due to a lack of regulations. I hope that this riding season that starts to change."

Wallace laid the blame for the ongoing problems squarely at the feet of the Forest Service.

"This issue would have never melted down to the condition is has and it would have never gotten this contentious if the Forest Service would have simply been doing its job," Wallace said. "This has been an issue for years and Forest Service has refused to step in and take some control."

Wallace would not say if he will respond in a favorable way to the recommendations but said he plans to meet with other plaintiffs and discuss the proposal. He added that he will reply one way or the other, within the 15 day time frame.

"There are still some areas that I want more clarification on; does this mean that the Forest Service is going to enforce these guidelines," Wallace said.

In handing down his recommendation Gilbert acknowledged that finding a solution that satisfies all parties completely will not happen quickly. Gilbert said he believes his proposal "strikes an acceptable balance between equestrian use and the preservation and protection of natural resources."

"The court certainly notes that the conflict between the environmentalists and the equestrians did not arise overnight and it will not be resolved overnight," Gilbert wrote. "We cannot instantly turn back the clock and undo the adverse environmental impacts within Lusk Creek Wilderness that are associated primarily with horseback riding and lack of trail maintenance, and that were a decade in the making."

Gilbert also noted that the restoration of the Lusk Creek Wilderness to where it was more than a decade ago will also not happen overnight.

"However, measures can be taken now, in a cooperative effort, to begin the process of restoring the natural beauty where possible and to preserve and protect designated natural and wilderness areas for the use and enjoyment of current and future generations," said Gilbert. "To accomplish this goal the Forest Service will need to manage Lusk Creek Wilderness and other wilderness areas with and eye, first and foremost, toward preserving and protecting the natural resources. The interests of the human users of the area are secondary."

Wallace said he believes that Gilbert's intervention and interest is a "small first step" in finding a common ground regarding the complicated issue.

"The fact that a federal judge spent the day traversing a wilderness area, to me is a good first step and also pretty darn significant," said Wallace.

(This is the second in a three-part series. The final part will run on Friday)

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