Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 1 of 63
`
`Mark L. Stermitz
`Peter Taylor
`CROWLEY FLECK PLLP
`305 South 4th Street East, Ste. 100
`Missoula, MT 59801-2701
`Telephone: (406) 523-3600
`Facsimile: (406) 523-3636
`mstermitz@crowleyfleck.com
`ptaylor@crowleyfleck.com
`
`Attorneys for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`BILLINGS DIVISION
`
`
`Paul and Cathy Donohoe; Torian
`Donohoe; Kyle and Anna Donohoe;
`David and Kayce Arthun, and Castle
`Creek Ranch L.P.,
`
`
`
` vs.
`
`U.S. Forest Service, Forest Supervisor
`Mary Erickson, District Ranger Ken
`Coffin,
`
`
`
`Plaintiffs,
`
`
`Case No.:________________
`
`
`
`
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`Defendants.
`
`
`I. INTRODUCTION
`
`
`
`
`
`1.
`
`Plaintiffs seek judicial review under the citizen suit provisions of the
`
`Administrative Procedure Act (APA) and the Endangered Species Act (ESA) of
`
`the United States Forest Service (Forest Service) analysis and authorization of a
`
`Complaint for Injunctive and Declaratory Relief – 1
`
`
`
`Mark L. Stermitz
`Peter Taylor
`CROWLEY FLECK PLLP
`305 South 4th Street East, Ste. 100
`Missoula, MT 59801-2701
`Telephone: (406) 523-3600
`Facsimile: (406) 523-3636
`mstermitz@crowleyfleck.com
`ptaylor@crowleyfleck.com
`
`Attorneys for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`BILLINGS DIVISION
`
`
`Paul and Cathy Donohoe; Torian
`Donohoe; Kyle and Anna Donohoe;
`David and Kayce Arthun, and Castle
`Creek Ranch L.P.,
`
`
`
` vs.
`
`U.S. Forest Service, Forest Supervisor
`Mary Erickson, District Ranger Ken
`Coffin,
`
`
`
`Plaintiffs,
`
`
`Case No.:________________
`
`
`
`
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`Defendants.
`
`
`I. INTRODUCTION
`
`
`
`
`
`1.
`
`Plaintiffs seek judicial review under the citizen suit provisions of the
`
`Administrative Procedure Act (APA) and the Endangered Species Act (ESA) of
`
`the United States Forest Service (Forest Service) analysis and authorization of a
`
`Complaint for Injunctive and Declaratory Relief – 1
`
`
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 2 of 63
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`trail construction project in the Initial Creek/West Fork of the Stillwater River
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`Area (Project Area) of the Custer Gallatin National Forest, Beartooth Ranger
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`District. The full scope of the Forest Service’s proposed trail construction project
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`was to construct three plus miles of trail as well as an associated foot/stock bridge
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`over the Westfork of the Stillwater River between the Castle Creek Trailhead and
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`Westfork of the Stillwater River Trailhead (Project).
`
`2.
`
`The Forest Service purported to comply with the National Environmental
`
`Policy Act (NEPA) by using categorical exclusions (CatEx) to build the Project,
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`which it did in two phases. Phase 1, consisting of reconstructing the trail between
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`the Initial Creek Campground and West Fork of the Stillwater River Trail Head
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`(West Fork Trailhead), was completed in the fall of 2019. Phase 2 of the project
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`has not yet started. The Project, if completed, will significantly impact and disrupt
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`the natural balance and status quo of the area. The Forest Service has slated Phase
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`2 for implementation as soon as possible and has advised Plaintiffs that it may
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`begin construction immediately. Besides the harm already caused, completing the
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`Project will irreparably damage Plaintiffs’ interest.
`
`3.
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`The Forest Service impermissibly segmented the Project to serve a single
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`constituency, backcountry horse users, using funding and implementation under
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`multiple Forest Service and Federal Highway Administration (FHWA) categorical
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`exclusions. After responding to Plaintiffs’ sixty-day notice of intent to sue letter
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`Complaint for Injunctive and Declaratory Relief – 2
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 3 of 63
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`by initiating ESA Section 7 consultation with the United States Fish and Wildlife
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`Service (USFWS), the Forest Service misrepresented the scope of the Project and
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`its potential impacts on the threatened grizzly bear, rendering the consultation
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`inaccurate and insufficient.
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`4.
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`The Forest Service’s approval of the Project under two separate Decision
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`Memoranda was arbitrary and capricious, an abuse of discretion, was not in
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`accordance with the law, and is not supported by substantial evidence in the record.
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`5.
`
`Defendants’ actions or omissions violate the National Environmental Policy
`
`Act (NEPA), 42 U.S.C. §§ 4331 et seq., the National Forest Management Act
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`(NFMA), 16 U.S.C. §§ 1600 et seq., the Endangered Species Act (ESA), 16 U.S.C.
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`§§ 1531 et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.
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`6.
`
`Plaintiffs request the Court set aside the remainder of the Project pursuant to
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`5 U.S.C. § 706(2)(A) and enjoin implementation of the Initial Creek – Castle
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`Creek Connector Trail portion of the Project (Phase 2).
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`7.
`
`Plaintiffs seek a declaratory judgment, injunctive relief, the award of costs
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`and expenses of suit, including (if they prevail) attorney fees pursuant to the Equal
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`Access to Justice Act, 28 U.S.C. § 2412, and the Endangered Species Act, 16
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`U.S.C.§ 1540(g)(4), and such other relief as this court deems just and proper.
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`
`
`
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`Complaint for Injunctive and Declaratory Relief – 3
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 4 of 63
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`II. JURISDICTION
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`8.
`
`This action arises under the laws of the United States and involves the
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`United States as a Defendant; therefore, this Court has subject matter jurisdiction
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`over the Plaintiffs’ claims under 28 U.S.C. §§ 1331, 1346.
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`9.
`
`An actual controversy exists between Plaintiffs and Defendants. Plaintiffs
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`use and enjoy the Custer-Gallatin National Forest for hunting, fishing, cattle
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`grazing, camping, enjoying the scenery and wildlife, and engaging in other
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`recreational activities. Plaintiffs’ privately owned property is surrounded by the
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`Project Area and within the Custer Gallatin National Forest, is immediately
`
`adjacent to the proposed trail construction Project, and is significantly impacted by
`
`all Forest Service decisions in the Project Area. Plaintiffs’ agricultural business is
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`conducted on lands within the Project Area and on private lands immediately
`
`outside the Project Area. Plaintiffs have substantial interest in the federal
`
`government’s monitoring and management of the grizzly bear in the Greater
`
`Yellowstone population, especially in light of significant documented growth in
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`bear population. Plaintiffs intend to continue to use and enjoy the area
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`continuously for generations to come.
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`10. The Plaintiffs’ recreational, aesthetic, economic, spiritual, and educational
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`interest have been adversely affected and irreparably injured by Defendants’
`
`implementation of Phase 1 of the Project and will be irreparably damaged if
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`Complaint for Injunctive and Declaratory Relief – 4
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 5 of 63
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`Defendants implement the remainder of the Project, Phase 2. These are concrete
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`and actual damages and injuries caused by the Defendants failure to observe and
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`comply with mandatory duties under NEPA, the ESA, NFMA, and the APA.
`
`11. This Court has the authority to redress the Plaintiffs’ injuries by granting the
`
`relief requested under the 28 U.S.C. §§ 2201-02 and 5 U.S.C. §§ 705-06.
`
`12. Plaintiffs submitted timely comments and objections concerning the Project
`
`in the available NEPA scoping process for Phase 2 and no further opportunity for
`
`appeal was available under Forest Service regulations. They have, therefore,
`
`exhausted their administrative remedies.
`
`13. Plaintiffs provided Defendants with the appropriate notice of intent to file
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`suit for violations of the ESA.
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`III. VENUE
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`14. Venue is proper under 28 U.S.C. § 139 (e)(1) and L.R. 3.2(b). A substantial
`
`part of the events or omissions giving rise to this action occurred in Sweetgrass or
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`Carbon County and the property that is the subject to the action is in Sweetgrass
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`County, which according to L.R. 1.2(c) is in the Billings Division of the United
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`States District Court for the District of Montana.
`
`IV. PARTIES
`
`15. Plaintiffs Torian Donohoe, Kyle Donohoe, Anna Donohoe, and David and
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`Kacey Arthun are the shareholders of Castle Creek Ranch LP. All shareholders of
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`Complaint for Injunctive and Declaratory Relief – 5
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 6 of 63
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`Castle Creek Ranch LP are members of a multi-generational family ranch, which
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`has called the Project Area and surrounding community home for over 100 years.
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`Castle Creek Ranch LP owns private land holdings within the Custer National
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`Forest in the Project Area. These lands are immediately adjacent to the proposed
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`Project’s uncompleted trail construction, and the Forest Service’s proposed new
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`trail construction attempts to circumnavigate Castle Creek Ranch private lands.
`
`Torian Donohoe has a deep connection to and relationship with the Project Area
`
`and Castle Creek Ranch lands, as she grew up on the family’s ranch. Kyle and
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`Anna Donohoe live fulltime in the immediate vicinity of the Project Area with an
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`address of Nye, MT. The couple produces their primary income from involvement
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`in their family’s ranching and outfitting enterprises, and they work daily with
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`Plaintiffs Paul and Cathy Donohoe, Kyle’s parents. David and Kayce Arthun
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`reside in Absarokee, MT, which is only a short distance from the Project Area and
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`Castle Creek Ranch LP. Kayce grew up on the family’s ranch and is the daughter
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`of Paul and Cathy Donohoe.
`
`16. Plaintiffs Paul and Cathy Donohoe live on the family ranch a short distance
`
`from the Project Area on lands that are contiguous with those held by the members
`
`of Castle Creek Ranch LP. The couple produces their primary income from
`
`ranching and outfitting in the Project Area and surrounding vicinity. Paul outfits
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`on private land holdings surrounding the Project Area and in several regions of the
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`Complaint for Injunctive and Declaratory Relief – 6
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 7 of 63
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`Custer National Forest on a Forest Service outfitting permit. The couple has deep
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`roots and connections to the Project Area and the region surrounding it that only a
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`lifetime of caring for the land and experiencing the immense biological shifts over
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`long periods firsthand can create. The couple is actively involved in civic
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`committees and activities involved with shaping the future of the Nye community
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`and the Custer National Forest.
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`17. Defendant Mary Erickson is the Forest Supervisor for the Custer Gallatin
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`National Forest and is responsible for overseeing all activities and proposed actions
`
`in Custer Gallatin National Forest. She is responsible for ensuring the decisions
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`made by all Custer National Forest personnel subordinate to her position follow
`
`their statutory obligations under NEPA, the ESA, the APA, and NFMA, and all
`
`other applicable laws, regulations, official policies, and relevant procedures. The
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`Custer Gallatin Forest Supervisor’s office is located in Gallatin County.
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`18. The Forest Service is an agency within the United State Department of
`
`Agriculture. The Forest Service is tasked with the lawful management of all
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`National Forest lands, including the Custer Gallatin National Forest - Beartooth
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`District, where the Project Area is located.
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`19. Defendant Kenneth W. Coffin is the District Ranger for the Custer National
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`Forest – Beartooth District and is immediately responsible for the Decision Memo
`
`authorizing Phase 2 of Project construction in 2019. Coffin is also responsible, in
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`Complaint for Injunctive and Declaratory Relief – 7
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 8 of 63
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`his official capacity, for assuring NEPA, the ESA, NFMA, and the Custer National
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`Forest Management Plan are followed.
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`V.
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`FACTUAL ALLEGATIONS
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`Project Location and Forest Conditions
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`20. The Project is located in Sweetgrass County Montana, in the Custer National
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`Forest–Beartooth District. The Project is located in the area between Castle Creek
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`Trail Head and the West Fork of the Stillwater Trailhead, including the Initial
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`Creek Campground. The following is a Forest Service map of Phase 1:
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`
`
`
`
`
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`21. The area outlined and shown in blue hash mark on the map above indicates
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`Plaintiffs’ private lands. The “proposed new bridge” has been built by the Forest
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`Service, as detailed herein.
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`Complaint for Injunctive and Declaratory Relief – 8
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`2007 Fisheries Specialist Report
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`22. On December 18, 2007, Darin A. Watschke, Fishery Biologist for the Custer
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`National Forest issued a Fisheries Report for Phase 1 of the Project. Watschke’s
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`report explicitly details the construction needed to complete Phase 1 of the project,
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`noting the Forest Service will reconstruct “approximately 3,200 feet of road and
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`1,800-1900 feet of trail,” construct a new bridge at the old bridge site to span the
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`West Fork of the Stillwater River, and build “200-300” feet of new trail outside the
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`old transportation system at the trail termini. See Ex. “A” attached. Watschke
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`states that to bring the proposed trail up to standard “it will require removal of
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`down fall and brush, and rocking of the proposed corridor” as well as grading in
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`the newly constructed section. The Fisheries Report notes that if the project
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`activities change after this evaluation is completed, an updated Biological
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`Evaluation should be considered.” The 2007 Fisheries Report was included as part
`
`of a biological assessment completed for Phase 1 in 2014, which described Phase 1
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`of the project in similar terms. The Fisheries Report has never been updated in
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`consideration of, now proposed, Phase 2 of the project.
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`2010 Letter to Montana State Historical Preservation Officer
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`23. On May 3, 2010, Former Beartooth District Ranger Traute Parrie, through
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`Forest Service employee Jeff Gildehaus, addressed a letter to the Montana State
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`Historic Preservation Officer, Dr. Mark Baumler, seeking concurrence that the
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`Complaint for Injunctive and Declaratory Relief – 9
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`“reconstruction of an abandoned historic road and trail” known as the “Bryant
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`Road” would have “NO ADVERSE EFFECT to the qualities that make the road
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`eligible for nomination on the NRHP” (National Register of Historic Places).
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`(Emphasis in original.) The Montana State Preservation Officer concurred on May
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`26, 2010 by stamping and returning the letter to the Forest Service.
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`24. The Forest Service maintains that this correspondence “propos[ed] to
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`establish a new trail connecting the Initial Creek Campground with the West Fork
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`Stillwater Trailhead.” Though the historic preservation concurrence letter notes
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`the Bryant Road is 5.0 miles long, the projects description claims the project would
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`only “consist of 200-300 feet of new construction and 5000-5100 feet of
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`reconstruction . . . [and] [o]ne new bridge . . . across the West Fork of the
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`Stillwater River” (Phase 1).
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`25. The Forest Service website contains a page titled “Faces of the Forest
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`Service Meet Jeff Gildehaus.” Mr. Gildehaus is the Forest Service employee that
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`signed the historic preservation concurrence letter for the District Ranger Parrie.
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`Ironically, the website notes that Mr. Gildehaus sees his job as “eliminating
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`bureaucratic red tape whenever he can.” https://www.fs.usda.gov/faces-of-the-
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`forest-service/meet-jeff-gildehaus.
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`Complaint for Injunctive and Declaratory Relief – 10
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 11 of 63
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`Biological Assessment for Initial Creek Trail Reconstruction Project
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`26. On December 11, 2014, the Forest Service issued a Biological Assessment
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`for Threatened, Endangered, and Proposed Species for the Line Creek Basin Re-
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`Alignment and Initial Creek Trail Construction Projects (2014 Biological
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`Assessment).
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`27. The 2014 Biological Assessment describes the purpose of Phase 1 of the
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`Project as follows:
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`The purpose is to provide trail access from the Initial
`Creek Campground to the West Fork Stillwater
`Trailhead. The proposed project would utilize an old
`transportation system encompasses approximately, 3,200
`feet of road, and 1,800-1,900 feet of trail and a bridge
`site. Approximately 200-300 of new trail construction
`near the trail termini would be required. In addition, a
`pack and stock bridge would be installed at an old bridge
`site to span the West Fork Stillwater River.
`
`
`28. The 2014 Biological Assessment confirmed that the grizzly bear population
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`in the Custer National Forest–Beartooth District is steadily growing, and grizzly
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`bears are present in the Project Area, stating:
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`Grizzly bear observations in and adjacent to the
`Beartooth Mountains have increased over the past several
`years, with an increase from 4 documented individual
`bears in 2009 and zero in 2010, to 12 in 2011, 27 to 29
`individuals in 2012, and a minimum of 43 individuals in
`2013 (Stewart 2014). Grizzly bear sightings have been
`documented . . . within approximately 2 miles of the
`Initial Creek Trail in years 2002, 2006, and 2012
`(Montana Natural Heritage Program database). Potential
`thus exists for grizzly bears to be present throughout the
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`Complaint for Injunctive and Declaratory Relief – 11
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`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 12 of 63
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`Beartooth Mountains and for individual bears to travel
`through both project areas.
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`Letters of Recommendation to the Recreational Trails Program
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`29. Between March 3 and March 6, 2015, Ms. Beth Shumate at the Montana
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`State Parks Recreational Trails Program (RTP), received numerous letters from
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`members of the public supporting a grant proposal submitted by Forest Service
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`employee Allie Wood to fund the purchase of the bridge materials needed for
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`Phase 1 of the Project, which were submitted to the selection committee for a
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`Recreational Trails Program grant.
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`30. The RTP is a federally funded grant program that supports Montana trails.
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`Grant funds come from the Federal Highway Trust Fund, and funded projects must
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`meet the requirements of a Federal Highway Administration (FHWA) NEPA
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`categorical exclusion. 23 C.F.R. § 771.117.
`
`31. Application materials for 2015 RTP grants recommend “the general public,
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`adjacent landowners, and other interested parties should be involved from the
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`onset.” Though the application materials note public involvement is not required it
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`recommends “promotion of public participation [ ] through newspaper articles and
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`any other means available, such as public meetings, federal quarterly newsletters,
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`TV programs, radio announcements, etc.”
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`32. Application materials for 2015 RTP grants indicate that the “State Historic
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`Preservation Officer (SHPO) must review each grant application . . . [and] if a
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`Complaint for Injunctive and Declaratory Relief – 12
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`federal agency is involved, the agency must consult SHPO pursuant to the National
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`Historic Preservation Act.”
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`33. To assure the proper NEPA and Montana Environmental Policy Act
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`(MEPA) procedures have been followed prior to authorizing a project, the RTP
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`committee allows federal to submit a “Environmental Analysis Tiering Letter” to
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`assure NEPA requirements have been met.
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`34. On March 6, 2015, District Ranger Parrie signed an Environmental Analysis
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`Tiering Letter stating that she had confirmed through internal and external scoping
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`that there were no extraordinary circumstances related to Phase 1 of the Project.
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`35. Three days prior to confirming NEPA compliance in the Tiering Letter, on
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`March 3, 2015, Forest Service employee Jeff Gildehaus signed and submitted a
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`letter of support for the bridge materials grant to the Recreational Trails Program
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`on behalf of District Ranger Parrie.
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`36. The letters of recommendation to the RTP were the only NEPA scoping
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`conducted on Phase 1. These letters were obtained by direct contact of the
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`interested parties by Forest Service employee Allie Wood. While the letters
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`generally follow a “form” letter format that was likely provided to the parties,
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`which announces support for Phase 1 of the Project, several letters make
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`statements indicating the entire Project was already contemplated at this time.
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`These letters are primarily from horseback users, likely affiliated with Beartooth
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`Complaint for Injunctive and Declaratory Relief – 13
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`Backcountry Horsemen, and announce a general enthusiasm for the “prospects for
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`re-establishing an old historic route.”
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`37. RTP Grant applications were due no later than March 6, 2015. Forest
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`Service employee Wood submitted the grant application on March 6, 2015
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`confirming all grant requirements had been met.
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`38. On May 29, 2015, the State Trails Advisory Committee (STAC) awarded an
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`RTP Grant for the Project’s bridge materials in the amount of $25,612.00.
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`2015 Decision Memo for Phase 1 of Trail Construction
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`39. On March 6, 2015, District Ranger Parrie issued a Decision Memo
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`approving Phase 1 of the Project, construction of the portion of the trail between
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`the Initial Creek Campground and the West Fork Trailhead and the associated
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`bridge to cross the West Fork of the Stillwater River at the terminus of the new
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`trail nearest the West Fork Trailhead. The Decision Memo is titled The Initial
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`Creek Bridge Installation and Deferred Trail Maintenance.
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`40. Though issued under District Ranger Parrie’s authority, the Decision Memo
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`was signed by Forest Service employee Jeff Gildehaus.
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`41. The Decision Memo states the trail and bridge are needed to “alleviate
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`congested parking at the West Fork Stillwater trailhead by providing adequate
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`trailer parking at the campground and a safe route via the historic route to the
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`trailhead.”
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`Complaint for Injunctive and Declaratory Relief – 14
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`Forest Service Employee Allie Wood’s Letter Concerning NEPA Scoping
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`42. Though the exact date of the communication is not apparent in Forest
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`Service documentation, Plaintiffs’ information and belief is that on March 6, 2015,
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`Forest Service employee Allie Wood conferred with Forest Service NEPA
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`Coordinator Mark Slacks to determine the extent of scoping required for Phase 1 of
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`the project. The intended recipient of this correspondence is also not apparent in
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`the document provided to Plaintiffs from the Forest Service. The Plaintiffs did not
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`receive a purpose and need, or scoping, correspondence from the Forest Service.
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`43. Ms. Wood was informed the letters she had sought in support of her RTP
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`application would meet NEPA’s scoping requirements. The corresponding
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`document appears as follows in the record provided to Plaintiffs:
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`Forest Service’s 2018 Scoping Letter
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`44. On March 2, 2018, District Ranger Ken W. Coffin, who replaced District
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`Ranger Parrie as the District Ranger for the Beartooth Ranger District, sent a letter
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`Complaint for Injunctive and Declaratory Relief – 15
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`to interested parties requesting that “comments related to issues and concerns
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`regarding” the construction of Phase 2 of the Project be submitted to Allie Wood
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`by March 16, 2018. The Forest Service’s proposed action to be addressed in the
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`interested parties’ comments was the construction of the trail from the Castle
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`Creek Trailhead to the Westfork Stillwater Trailhead (Phase 2).
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`45. Plaintiffs did receive this letter, and responded with written concerns over
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`the project, including: whether there was a need for redundant access points to the
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`same area of the Custer National Forest; potential inappropriate use of trail
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`maintenance and construction funds when funding was already limited to care for
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`existing trails; increases in traffic to the county road referred to as Limestone
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`Road, which turns into a Forest Service Picket Pen road prior to Castle Creek
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`Trailhead; concerns over installing gates, signage, and fencing on their impacted
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`private lands, with their primary concern focused on the potential ramifications of
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`cattle moving into the Initial Creek Campground area after trail implementation
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`removes the existing forest barrier; and concerns over the fact the project had been
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`approved.
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`46. Plaintiffs also raised concerns over their belief that Phase 2 had already
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`seemingly been approved prior to scoping. These concerns arose because
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`Plaintiff’s had not been notified either during Phase 1’s scoping of or after Phase
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`1’s approval that the Forest Service intended to undertake the project; therefore,
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`Complaint for Injunctive and Declaratory Relief – 16
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`when they saw the bridge materials in the Project Area they had no idea the bridge
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`materials been acquired under an earlier decision memo and assumed the Forest
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`Service was proposing the project all at one time.
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`47. The Forest Service never included Phase 1 of construction on the Schedule
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`of proposed actions (SOPA) for the Custer National Forest.
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`2019 Decision Memo—The Initial Creek – Castle Creek Connector Trail
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`48. On April 15, 2019, District Ranger Coffin signed a Decision Memo for
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`construction of the trail/road from the Castle Creek Trailhead to the Initial Creek
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`Campground (2019 Decision Memo). This Decision Memo encompasses the
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`actions Plaintiffs now seek to enjoin.
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`49. Though never mentioning any concerns with the current access road in
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`Phase 1’s Decision Memo, the Forest Service now provided the following relevant
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`Background on Phase 2:
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`Access to the campground and the West Fork Stillwater
`Trailhead via the Forest Service Road #2841 which is
`classified as a Maintenance Level 3 road. Maintenance
`Level 3 is assigned to roads that are open and maintained
`for travel by a prudent driver in a standard passenger car.
`Roads in this maintenance level are typically low speed
`single lane with turnouts and spot surfacing. Although
`stock trailers are allowed on the road it was not designed
`to accommodate this type of traffic. The road is narrow
`and the turnouts are not adequate in size or strategic
`spacing to accommodate two way traffic of passenger
`and/or stock vehicles. The road is difficult to navigate
`with a stock trailer and can be hazardous when another
`vehicle or stock trailer is met along its corridor.
`
`Complaint for Injunctive and Declaratory Relief – 17
`
`
`
`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 18 of 63
`
`
`50. The proposed action for Phase 2 of construction is defined as:
`
`The Beartooth Ranger District proposes to provide
`additional access to the Initial Creek Campground, and
`the West Fork Stillwater Trailhead via a non-motorized
`trail. The proposed action would utilize approximately
`1.5 miles of the historic Bryant route and the construction
`of .5 miles of new trail on Forest Service lands to avoid a
`section of private property that the original route
`traversed.
`
`51. The Forest Service defines the entire scope of work required for Phase 2’s
`
`construction as “trail treading, deadfall and brush clearing across and within the
`
`proposed nonmotorized trail corridor.”
`
`52. The Forest Service states they will construct the trail “throughout the field
`
`season typically May-September,” but does not state an exact or approximate
`
`implementation date for Phase 2. Based on observations of Forest Service activity
`
`in the area, Plaintiffs believe that the Forest Service may be preparing to begin
`
`construction immediately.
`
`53.
`
`In responding to Plaintiffs concerns over the likelihood that the proposed
`
`action would increase traffic on the Stillwater County road known as Limestone
`
`Road, District Ranger Coffin response in the Decision Memo States:
`
`As required by the Code of Federal Regulations, which
`provides direction for NEPA implementation (40 CFR
`1500-1508), environmental analyses are intended to
`focus on and disclose effects on Federal Lands. The
`Limestone Road is a county road, therefore, is beyond the
`scope of this environmental analysis.
`
`Complaint for Injunctive and Declaratory Relief – 18
`
`
`
`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 19 of 63
`
`54. Limestone Road turns into Picket Pen Road, which is a Forest Service road;
`
`therefore, any concerns over increased traffic on Limestone should have been
`
`interpreted as also raising corresponding concerns on Picket Pen Road.
`
`55.
`
`In response to Plaintiffs concerns over sufficient funding to maintain the trail
`
`and care for weed issues, District Ranger response states, “the existing prism is in
`
`excellent shape and require[s] minimal clearing and tread work.”
`
`56. The District Ranger’s statement is a gross misrepresentation of the work
`
`required to complete Phase 2, which clearly reflects the Bryant Road/Trail has
`
`been abandoned for nearly 80 years. In addition, the statement neglects to note an
`
`additional small bridge will likely be needed to cross a small steep sided mountain
`
`stream.
`
`57. The 2019 Decision Memo notes the Phase 2’s proposed actions were
`
`included in the quarterly SOPA. Plaintiffs cannot confirm this claim in the public
`
`record available.
`
`Plaintiffs Raise Concerns to United State Representative Gianforte
`
`58. On July 30, 2019, Plaintiffs Paul and Cathy Donohoe voiced their concerns
`
`with how the project had been implemented to United States Representative Greg
`
`Gianforte, expressly noting in their Privacy Release Form, that “the cattle will
`
`follow the trail to the Westfork Campground – this becomes a problem. They now
`
`Complaint for Injunctive and Declaratory Relief – 19
`
`
`
`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 20 of 63
`
`cannot get through due to dense forest growth - years ago the cattle were up in the
`
`campground on and off.”
`
`Forest Service Response Letter to United States Representative Greg Gianforte
`
`59. On August 16, 2019, Forest Supervisor Erickson responded to Gianforte’s
`
`inquiry.
`
`60. Forest Supervisor Erickson states:
`
`Current access is via the Initial Creek Road, a steep,
`rocky, narrow, backcountry road and while people do
`haul trailers, it is difficult and often unsafe to do so,
`especially during the hunting season when snow and icy
`conditions prevail. The new trail ties into the West Fork
`Stillwater River trailhead and would minimize these user
`safety concerns.
`
`Various Conference Calls and Site Visits with Forest Service Officials
`
`61.
`
`In April of 2018, District Ranger Coffin participated in a conference call
`
`with Plaintiffs Paul, Cathy, and Torian Donohoe. The Plaintiffs noted to District
`
`Ranger Coffin the previously stated concerns with their domestic cattle leaving
`
`Castle Creek’s inholdings and venturing into the Westfork of the Stillwater
`
`Trailhead area. Noting the forest growth had formed a natural barrier between the
`
`locations over time.
`
`62.
`
`In May of 2018 District Ranger Coffin walked the proposed trail with
`
`Plaintiff Paul Donohoe.
`
`Complaint for Injunctive and Declaratory Relief – 20
`
`
`
`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 21 of 63
`
`63.
`
`In May of 2019 District Supervisor Erickson met with Plaintiffs via
`
`conference call.
`
`64.
`
`In July of 2019 Forest Supervisor Erickson met with Plaintiffs Paul and
`
`Cathy Donohoe at the Castle Creek Campground to discuss Phase 2 of the Project
`
`but did not make herself available to physically walk the proposed trail to assess
`
`whether representations made in District Ranger Coffin’s Decision Memo about
`
`Phase 2 were accurate.
`
`65. Had Forest Supervisor Erickson physically inspected the Phase 2 project site
`
`at the time of meeting Donohoes, she would have discovered that District Ranger
`
`Coffin’s claim that “the existing prism is in excellent shape and require[s] minimal
`
`clearing and tread work,” is a gross misrepresentation of the site, which obviously
`
`reflects that the Bryant Road/Trail has been abandoned for nearly 80 years.
`
`66. Site inspection reveals, the section of trail that is yet to be constructed
`
`transects an area that is heavily wooded, overgrown by significant underbrush, and
`
`repeatedly crisscrossed by large deadfall. Phase 2 construction also requires
`
`crossing a steep banked mountain stream, which evidence of stone bridge
`
`abutments on the embankments suggests was previously crossed by bridge. The
`
`photo below is indicative of the condition of the forest where Phase 2 will be
`
`constructed and was taken in the fall of 2019. Upon Plaintiffs’ information and
`
`belief, the pink flagging marks the proposed path for the trail.
`
`Complaint for Injunctive and Declaratory Relief – 21
`
`
`
`Case 1:20-cv-00137-SPW Document 1 Filed 09/16/20 Page 22 of 63
`
`
`
`Plaintiffs FOIA Request
`
`67. On August 26, 2019, Plaintiffs Paul and Cathy Donohoe sent the following
`
`FOIA request to the Forest Service,
`
`We are requesting all paperwork from conception on the
`Initial
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