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Camp association members like judge's plan

BY JIM MUIR
THE SOUTHERN

Friday, March 4, 2005 7:08 AM CST

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

BENTON - Members of the Shawnee Forest Horse Camp Association spent more than three hours Wednesday night poring over a proposal from Judge J. Phil Gilbert earlier this week.

According to spokesman Michael Scott the 10-member association liked what they saw.

"I think (Gilbert) has really worked hard to find some common ground in this case," Scott said. "I can tell you this, all 10 campground owners were extremely surprised from the very first time we met with Judge Gilbert and the remaining times we met with him. We think he has been extremely fair." Scott said for the first time in his recollection all parties involved in the longstanding legal battle have been placed on a level playing field.

"In all sincerity we are very pleased with Judge Gilbert coming down from the bench and taking a realistic approach to this case as a mediator," Scott said. "It was an extremely unusual thing to happen, but the most beautiful thing about it from our standpoint is that he put the campground association on the same level ground as the Forest Service and the environmentalists. I think it is very important to note that he wanted to hear all three sides individually; he wanted to go out and walk in the forest and take representatives of all the parties involved. He wanted to see firsthand what everybody was talking about and that's something that he couldn't have done sitting behind the bench."

After more than a dozen years of listening to arguments by a variety of parties concerning the use of the Shawnee National Forest, Gilbert realized last December that his familiar role at U.S. District Court in Benton was a futile one.

Gilbert presided over three hearings in short order concerning the Shawnee National Forest - Nov. 18 and 29 and Dec. 15 of last year - and realized he was involved in a stalemate he was certain would never be resolved unless a new and innovative approach was adopted.

"During these hearings it became apparent to me that there was this intense distrust that existed between all parties," Gilbert said. "Not only with respect to the differences that they had with each other but also the differences they had with the Forest Service, and due to what I perceived as a lack of communication between the three groups, I felt that a third-party mediator might be able to bring the parties together to reach an agreement - an agreement that all might not be 100 percent happy with but one that everybody could live with."

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 among equestrians, environmentalists and the U.S. Forest Service regarding use of Shawnee National Forest.

The legal conflict involves an area 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, 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 the added equestrian traffic also caused damage, alarming environmental groups. That combination provided a three-way battle that led to lawsuits and counter suits.

The legal battle among 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 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 been "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.

Scott said there are 10 campgrounds, four in the Lusk Creek Wilderness area, and "six others spread out anywhere from the Ohio River side to the Mississippi River side."

"Some of these campgrounds have what is called 'organized rides' - weeklong rides where they take the people out and also feed them," Scott said. "There are also regularly scheduled weekly rides, every weekend for people that want to come in and ride. They have facilities for their horses, showers, electric hookups, and some offer meals. It is really everything from primitive camping to uptown camping."

When asked if equestrians have taken a bad rap concerning care of the environment and natural resources, Scott admitted that there are extremists on both sides of this argument.

"My own personal opinion is that some people still consider the campground owners and horseback riders as not environment-friendly people that are unconcerned about the environment and that is just not true," Scott said. "There are bad apples in every basket, there are environmentalists that are extreme and there are horseback riders that are extreme who say that they are going to ride anywhere at any time. But the majority of the people and the campground owners know that if they did not have adequate trails, in other words if the forest was not there, they would not be in business."

Scott said he believes, pending another meeting, that the campground owners will sign the proposal that Gilbert has drafted. He said he believes the judge had found common ground for all sides, a point that Scott said the judge established the first time he met with campground owners.

"Judge Gilbert's first priority has always been to preserve the forest; he told us that the first day we met with him," Scott said. "But even though that was his primary goal he also said he wanted to find a way to encourage the recreational use as stated in the Forest Service plan. He always said that he had no desire to put the campgrounds out of business. He said he wanted to work out a way that would be amicable for all sides involved. So, I can honestly say that even though his main goal is to preserve the forest he has found some common ground. He took a brave step and rolled up his sleeves and worked hard to try and find a solution that was fair to everybody involved, not 100 percent to everybody's liking, but fair to everybody. We're pleased with his decision."

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