`
`Lindsey W. Hromadka
`Michelle Tafoya Weinberg
`WEINBERG & HROMADKA, PLLC
`P.O. Box 652
`Whitefish, MT 59937
`Phone: (406) 730-2988
`lindsey@whlawmt.com
`michelle@tafoyalawfirm.com
`
`David K. Wilson
`MORRISON, SHERWOOD, WILSON & DEOLA, PLLP
`401 N. Last Chance Gulch
`Helena, MT 59601
`Phone: (406) 442-3261
`kwilson@mswdlaw.com
`
`Attorneys for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF MONTANA
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`MISSOULA DIVISION
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`
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`Cause No. __________
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`COMPLAINT
`FOR DECLARATORY AND
`INJUNCTIVE RELIEF
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`
`
`
`
`
`
`FRIENDS OF THE FLATHEAD
`RIVER, a Montana Nonprofit
`Corporation,
`
`
`Plaintiff,
`
`vs.
`
`
`U.S. FOREST SERVICE, and
`LEANNE MARTEN, REGIONAL
`FORESTER FOR THE U.S.
`FOREST SERVICE REGION 1
`
`
`Defendant.
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`
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`COMPLAINT AND JURY DEMAND
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`Page 1 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 2 of 16
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`INTRODUCTION
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`1. This civil action requests declaratory and injunctive relief for violations of the
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`Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. §§ 1271, et seq., the Forest
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`Service Organic Administration Act of 1897 (“Organic Act”), 16 U.S.C. § 551, and
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`the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq.
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`2. Specifically, this action seeks to compel preparation of the long overdue
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`review and update of the Flathead Comprehensive River Management Plan required
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`to be prepared under the Act and, until finalized and implemented, enjoin dispersed
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`overnight camping southwest of Blankenship Bridge on the gravel bar on the Middle
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`Fork of the Flathead River (the “Gravel Bar”).
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`3. In 1976, Congress designated three forks of the Flathead River in Montana to
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`be protected under the Wild and Scenic Rivers Act. 16 U.S.C. § 1274 (a)(13).
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`4. The WSRA requires the preparation of Management Plans to “protect and
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`enhance…outstanding remarkable values” for “future generations.”
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`5. The Forest Service Organic Administration Act of 1897, 16 U.S.C. § 551,
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`requires the Forest Service to regulate the “occupancy and use” of the national
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`forests and to “preserve the forests thereon from destruction.”
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`JURISDICTION AND VENUE
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`6. Jurisdiction is proper in this Court given the Defendant is an agency within
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`the U.S. federal government, and under 28 U.S.C. § 1331 (federal question) as this
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`COMPLAINT AND JURY DEMAND
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`Page 2 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 3 of 16
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`action arises under the laws of the United States , including the National Wild and
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`Scenic Rivers Act of 1968, 16 U.S.C. §§ 1271–1287, the Forest Service Organic
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`Administration Act of 1897 (“Organic Act”), 16 U.S.C. § 551, the Administrative
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`Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., the Declaratory Judgment Act, 28
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`U.S.C. §§ 2201 et seq., and the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
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`2412 et seq. An actual, justiciable controversy exists between the parties, and the
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`requested relief is therefore proper under 28 U.S.C. §§ 2201–2202 and 5 U.S.C. §
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`701–06.
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`7. Venue is proper in this Court under 28 U.S.C. § 1391 because all or a
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`substantial part of the events or omissions giving rise to the claims herein occurred
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`within this judicial district, Plaintiff’s Directors and supporters reside in this district,
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`and the public lands and resources in question are located in this district.
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`8. The federal government has waived sovereign immunity in this action
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`pursuant to 5 U.S.C. § 702.
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`PARTIES
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`9. Plaintiff Friends of the Flathead River, Inc. (“Friends”) is a Montana non-
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`profit organization, whose mission is to protect and preserve the Flathead River
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`watershed. Many of Friends’ Directors and supporters live near Blankenship Bridge
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`on the Middle Fork of the Flathead River in Flathead County and enjoy activities
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`such as hiking, fishing, wildlife watching, picnicking, running, and rafting within
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`COMPLAINT AND JURY DEMAND
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`Page 3 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 4 of 16
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`and adjacent to the Flathead Wild and Scenic Corridor. The aesthetic, recreational,
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`and conservation interests of Friends and its members have been, are being, and will
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`continue to be adversely affected and irreparably harmed by Defendant’s (i) failure
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`to update the Flathead Comprehensive River Management Plan and (ii) continued
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`authorization of overnight camping southwest of Blankenship Bridge directly on the
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`Gravel Bar of Middle Fork of the Flathead River, causing ongoing damage to its
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`resources.
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`10. Defendant United States Forest Service (the “Forest Service”) is the agency
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`charged with the administration of the designated Flathead River wild and scenic
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`river segments at issue here and is responsible for compliance with the Wild and
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`Scenic Rivers Act and the Travel Management Rule (36 C.F.R. §§ 212, et. seq.) for
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`these designated segments.
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`LEGAL BACKGROUND
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`National and Wild Scenic Rivers Act
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`11. Congress enacted the National Wild and Scenic Rivers Act in 1968 to
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`identify rivers that possess “outstandingly remarkable scenic, recreational, geologic,
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`fish and wildlife, historic, cultural, or other similar values” and to preserve those
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`rivers in free-flowing condition and protect their immediate environments “for the
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`benefit and enjoyment of present and future generations.” 16 U.S.C. § 1271.
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`12. The policy of the WRSA is to “preserve [] selected rivers or sections thereof
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`COMPLAINT AND JURY DEMAND
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`Page 4 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 5 of 16
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`in their free-flowing condition to protect the water quality of such rivers and to fulfill
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`other vital national conservation purposes.” Id.
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`13. River corridors, including adjacent land, included in the wild and scenic
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`rivers system are classified as wild, scenic, or recreational. Id. § 1273(b). Wild rivers
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`are those rivers or sections of rivers that “are free of impoundments and generally
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`inaccessible except by trail, with watersheds or shorelines essentially primitive and
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`waters unpolluted.” Id. § 1273(b)(1). These rivers represent “vestiges of primitive
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`America.” Id. Scenic rivers are “free of impoundments, with shorelines or
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`watersheds still largely primitive and shorelines largely undeveloped, but accessible
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`in places by roads.” Id. § 1273(b)(2). Finally, recreational rivers are “readily
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`accessible by road or railroad [and] may have some development along their
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`shorelines, and [] may have undergone some impoundment or diversion in the past.”
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`Id. § 1273(b)(3).
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`14. Once a river is designated, the federal agency charged with administration of
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`that corridor “shall prepare a comprehensive management plan for such river
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`segment to provide for the protection of the river values.” Id. § 1274(d)(1). These
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`management plans must address resource protection, development, use, and other
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`management practices that will achieve the purposes of the WSRA. Id.
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`15. Each component of the system, regardless of its classification as wild, scenic,
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`or recreational, “shall be administered in such manner as to protect and enhance the
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`COMPLAINT AND JURY DEMAND
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`Page 5 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 6 of 16
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`values which caused it to be included in said system without, insofar as is consistent
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`therewith, limiting other uses that do not substantially interfere with public use and
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`enjoyment of these values. Id. § 1281(a) (emphasis added). Further, “primary
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`emphasis shall be given to protecting its aesthetic, scenic, historic, archeologic, and
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`scientific features.” Id.
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`16. In addition to protecting a river’s free-flowing condition and outstandingly
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`remarkable values, the WSRA specifies that managing agencies must protect the
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`water quality of all rivers added to the National Wild and Scenic Rivers System. 16
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`U.S.C. §§ 1271, 1283(c).
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`17. The WSRA emphasizes the mandatory nature of these duties, stating that
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`“the Secretary of Agriculture, and the head of any other Federal department or
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`agency having jurisdiction over any lands which include, border upon, or are
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`adjacent to, any river within the National Wild and Scenic Rivers System . . . shall
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`take such action respecting management policies, regulations, contracts, plans,
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`affecting such lands . . . as may be necessary to protect such rivers in accordance
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`with the purposes of this chapter.” Id. § 1283(a).
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`National Forest Organic Administration Act
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`18. The Forest Service Organic Administration Act of 1897, 16 U.S.C. § 551,
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`requires the Forest Service to regulate the “occupancy and use” of the national
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`forests and to “preserve the forests thereon from destruction.”
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`COMPLAINT AND JURY DEMAND
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`Page 6 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 7 of 16
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`19. The Travel Management Rule, promulgated in 2005, requires each National
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`Forest to identify and designate those roads, trails, and areas that are open to motor
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`vehicle use. 36 C.F.R. §§ 212, et. seq. After designation of areas open to motor
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`vehicle use, the responsible official must “monitor” the effects of motor vehicle use.
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`36. C.F.R. § 212.57
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`20. The Travel Management Rule additionally requires the responsible official to
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`temporarily close National Forest Service lands to motor vehicle use if it is
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`determined that the use is “directly causing or will directly cause considerable
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`adverse effects on public safety or soil, vegetation, wildlife, wildlife habitat, or
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`cultural resources associated with….that area…until the official determined that
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`such adverse effects have been mitigated or eliminated and that measures have been
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`implemented to prevent future recurrence.” 36 C.F.R. § 212.52
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`ALLEGATIONS COMMON TO ALL COUNTS
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`21. In 1976, Congress designated 219 miles of the Flathead River for inclusion
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`in the WSRA as part of the National Wild and Scenic River (“WSR”) System.
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`22. In 1980, the Forest Service completed the Flathead Wild and Scenic River
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`Management Plan (“the Plan”). The Plan was intended to be a “comprehensive
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`document for management of the Flathead National Wild and Scenic River for a five-
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`year period beginning with the date of approval” and was to be “reviewed” yearly.
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`Plan, 23 (emphasis added).
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`COMPLAINT AND JURY DEMAND
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`Page 7 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 8 of 16
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`23. The Plan acknowledges the importance of the Flathead River as an
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`“exceptionally valuable element of the nation’s outdoor recreation estate[,]” but
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`emphasizes the need to “adequately maintain resource integrity” by thoroughly
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`monitoring resource degradation. Id. at 7.
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`24. The Plan states the intent of the Wild and Scenic Rivers Act is to “protect and
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`enhance the water quality of those Rivers.” Id. at 17. To that end, the Plan requires
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`management to “give priority to protection of water quality in case of conflict
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`between water quality and other resource uses.” Id. at 18. The Plan acknowledges
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`that “existing water quality is directly dependent on management activities within
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`the watershed,” and further acknowledges that “activities within the riparian zone
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`will usually have a greater effect on water quality than activities outside this zone.”
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`Id. at 17.
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`25. The management direction in the Plan for “recreational” segments is to “(1)
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`control access of cattle, motorized vehicles, horses, and pedestrians on river banks
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`and channels to prevent on-site sediment erosion and downstream sedimentation[;]
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`(2) control sanitary facilities (from houses, campgrounds, and etc.) so no pollution
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`from them reaches river.” Id. at 19.
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`26. The Plan identified migratory spawning populations of cutthroat and bull
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`trout, the latter being an endangered species, in all three forks of the Flathead River.
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`It also discusses the grizzly bear in depth, which were known to frequent the North
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`COMPLAINT AND JURY DEMAND
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`Page 8 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 9 of 16
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`Fork and South Fork drainages. Id. at 14-15. According to the Plan, the
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`“conservation of endangered and threatened species and their habitats will receive
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`priority management with regard to facility development and recreation use.” Id. at
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`14.
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`27. Blankenship Bridge, the precise location at issue here, is located at the
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`confluence of the North Fork and Middle Fork designations and is included in the
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`Lower Middle Fork Recreational WSR designation. “Recreational” river
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`classification emphasizes “diversity of river qualities and recreational opportunities
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`including, basically, free-flowing and unpolluted waters, ready public recreational
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`access, potential for accommodating large numbers of recreationists with a variety
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`of recreational experiences provided, and high scenic values.” Id. at 3.
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`28. With regard to motorized use, the Plan simply states that “motorized overland
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`vehicle travel in the corridor is generally limited to established roads due to terrain
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`and vegetation.” Id. at 51. The Plan allows “areas or roads in the river corridor [to]
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`be closed to all or certain types of motorized travel to protect resource values.” Id.
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`at 52.
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`29. The Plan protects scenic qualities of the Flathead River by directing the
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`Forest Service to “provide for a natural-appearing landscape within the classified
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`river corridor, maintain variety in the landscape by having a mixture of openings,
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`mature forest cover, and the various stages of forest succession[.]” Id. at 21.
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`COMPLAINT AND JURY DEMAND
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`Page 9 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 10 of 16
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`30. In 2013, the Forest Service and the National Park Service (“NPS”) completed
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`an Outstanding Remarkable Values Assessment of the Flathead River System.
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`According to the Assessment, the Blankenship Bridge location has outstanding
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`fisheries, geologic, water quality, wildlife, recreation, scenic, and historic values.
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`31. In 2010, the Forest Service, pursuant to the 2005 Travel Management Rule,
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`issued the “CHR Decision Notice,” which allows motorized use of the area at issue.
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`32. Since at least 2020, the use of motorized vehicles on the Gravel Bar on the
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`banks of the Flathead River just south of Blankenship Bridge has grown
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`exponentially.1 The nature of the motorized vehicle use is predominately overnight
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`camping. Rob Davies, the Hungry Horse Ranger District Ranger, stated “It’s like
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`Daytona Beach over spring break[;] this year is off the charts in terms of use and
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`visitation at that gravel bar.” The Forest Service has admittedly failed to adequately
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`monitor or manage this increased usage on the Gravel Bar. Instead, the Forest
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`Service placed two temporary porta potties on the Gravel Bar itself.
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`33. The motorized vehicle use on the Gravel Bar is degrading the water quality of
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`the Flathead River. The average number of camping vehicles (whether trucks, cars,
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`recreational vehicles, etc.) have been observed to be approximately 50-70 per day
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`during the summer months. Affidavit of Dan Diamond, ¶ 4, attached as Exhibit A.
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`1“Blankenship Bridge Camping Usage Triples Amid Pandemic,” August 4, 2020; accessed at
`https://flatheadbeacon.com/2020/08/04/blankenship-bridge-camping-usage-triples-amid-pandemic/
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`COMPLAINT AND JURY DEMAND
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`Page 10 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 11 of 16
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`The sheer number of vehicles is causing sediment and other substances to pollute
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`the River. Id. at ¶ 5. Friends’ Directors and supporters have witnessed the following
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`conduct: (i) campers urinating and defecating directly into the River; (ii) campers
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`washing dishes and throwing away food scraps directly into the River; and (iii)
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`recreational vehicles emptying their “black tank,” allowing feces and toilet paper to
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`go directly into the river; and (iv) vehicles driving into the River and into the
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`spawning creek adjacent to the River. Id. at ¶ 7, x; Affidavit of Paul Roper, ¶ 7,
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`attached as Exhibit B. Friends’ Directors have also witnessed dozens of campers
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`throw their trash directly into the River or leave it on the Gravel Bar; including
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`broken glass and human waste. Aff. D. Diamond, ¶ 7; Aff. Paul Roper, ¶ 7. In 2021,
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`a bus drove into the rising water and became stuck in the River, clearly degrading
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`the water quality by its mere existence in the River, which was worsened by the
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`efforts to remove the bus from the River. Aff. D. Diamond, ¶ 8.
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`COMPLAINT AND JURY DEMAND
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`Page 11 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 12 of 16
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`34. The overnight camping and excessive use on the Gravel Bar is also
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`threatening the scenic views and the natural landscape of the Flathead River. Aff.
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`D. Diamond, ¶ 9; Aff. Paul Roper, ¶ 5.
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`35. The overnight camping and excessive use on the Gravel Bar also pose a
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`distinct wildfire threat. Friends counted 94 rock fire rings and campfire sites on
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`April 14, 2022 during its last monitoring of the site. Aff. D. Diamond, ¶¶ 10, 11.
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`Directors and supporters of Friends witnessed illegal campfires during the Stage 1
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`fire restrictions in Summer of 2022, illegal fireworks and gunfire, illegal firewood
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`cutting, and complete disregard for wildfire safety. Id.
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`36. The overnight camping and excessive use on the Gravel Bar will likely lead
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`to Grizzly Bear-human conflicts due to the trash issue. The pollution of the River
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`by the human waste, vehicle use, and excessive overnight camping will likely harm
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`the cutthroat and bull trout.
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`37. In 2017, the Forest Service started the process to prepare a new
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`Comprehensive River Management Plan for the Flathead River. In 2019, the Forest
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`Service conducted “scoping” and released a Scoping Release on July 31, 2019. In
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`November 2021, the Forest Service stated it was to “resume” the planning process.
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`There has been no Environmental Assessment prepared or released to date, nor a
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`projected date for release of a final plan.
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`COMPLAINT AND JURY DEMAND
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`Page 12 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 13 of 16
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`38. The Proposed Action for the Comprehensive River Management Plan,
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`released in June 2019, recommends the Gravel Bar to be used as day use only.
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`
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`COUNT I –VIOLATION OF THE WILD AND SCENIC RIVERS ACT
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`39. The allegations set forth in all paragraphs above are plead and incorporated
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`herein as if fully set forth.
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`40. The Forest Service is in violation of the Plan. The Forest Service has failed
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`to adequately monitor the overnight camping and excessive use of the Gravel Bar.
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`The Forest Service has failed to ensure the water quality of the Flathead River is not
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`degraded, and has failed to prioritize water quality above recreation use as directed
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`by the Plan, by failing to manage the overnight use on the Gravel Bar. The Forest
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`Service has failed to ensure the scenic and natural vistas are preserved by allowing
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`dozens of motor vehicles, including large recreational vehicles, to overnight camp
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`on the Gravel Bar for extended periods of time. The Forest Service is in violation of
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`the Plan and the Wild and Scenic Rivers Act
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`41. The Forest Service has a mandatory duty to prepare a new Comprehensive
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`Management Plan for the Flathead River. The deadline for completing a new
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`Comprehensive Management was ostensibly in 1985. The Forest Service has
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`continually delayed updating the Comprehensive Management Plan since 2017. The
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`Forest Service is in violation of the Plan and the Wild and Scenic Rivers Act.
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`42. By failing to monitor and enforce the Plan (which remains in effect although
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`COMPLAINT AND JURY DEMAND
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`Page 13 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 14 of 16
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`it is 37 years out of date), and by failing to complete a new Comprehensive River
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`Management Plan for the Flathead River, the Forest Service has unlawfully withheld
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`or unreasonably delayed compliance with the Wild and Scenic Rivers Act 16 U.S.C.
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`(§§ 1271, 1274 and 1283), within the meaning of the Administrative Procedure Act.
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`5 U.S.C. § 706(1).
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`COUNT II – VIOLATION OF THE ORGANIC ACT
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`43. The allegations set forth in all paragraphs above are plead and incorporated
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`herein as if fully set forth.
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`44. The Travel Management Rule requires the Forest Service to “monitor” the
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`motorized use as authorized by the CHR Decision Notice. The Forest Service has
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`failed to monitor the exponential growth in overnight camping and excessive use of
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`the Gravel Bar. 36 C.F.R. § 212.57.
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`45. The Travel Management Rule additionally requires the Forest Service to
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`immediately close an area if it determines that motor vehicle use is “causing or will
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`directly cause considerable adverse effects on public safety or soil, vegetation,
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`wildlife habitat or cultural resources.” 36 C.F.R. § 212.52.
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`46. The Forest Service has determined that motor vehicle use will cause adverse
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`effects to the Wild and Scenic Flathead River, public safety, vegetation, and wildlife
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`and fish spawning habitat, but has failed to immediately close the Gravel Bar to
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`motorized use and overnight camping as required by 36 C.F.R. § 212.52.
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`COMPLAINT AND JURY DEMAND
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`Page 14 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 15 of 16
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`47. Alternatively, the Forest Service has failed to monitor the motorized use at the
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`Gravel Bar and thus has failed to determine whether motor vehicle use is causing
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`considerable adverse effects to the Wild and Scenic Flathead River, public safety,
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`vegetation, and wildlife habitat.
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`48. By failing to monitor the effects of motorized use on the Gravel Bar, and by
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`failing to immediately close the Gravel Bar to motorized vehicle use after finding
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`that the motor vehicle use is causing or will directly cause considerable adverse
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`effects on the Wild and Scenic Flathead River, public safety, vegetation, and wildlife
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`habitat, the Forest Service has unlawfully withheld or unreasonably delayed
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`compliance with the Travel Management Rule within the meaning of the
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`Administrative Procedure Act. 5 U.S.C. § 706(1).
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`PRAYER FOR RELIEF
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`WHEREFORE, the Plaintiffs pray for judgment and relief from this Court in
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`their favor and against Defendants as follows:
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`1.
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`Against Defendants on all Counts:
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`a. That the Court issue a declaratory judgment that the Forest Service is
`in violation of the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271,
`1274 and 1283;
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`b. That the Court issue a declaratory judgment that the Forest Service is
`in violation of the Forest Service Organic Act, through the Travel
`Management Rule;
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`c. That the Court issue a temporary restraining order and preliminary
`injunction enjoining dispersed overnight camping southwest of
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`COMPLAINT AND JURY DEMAND
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`Page 15 of 16
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`Case 9:22-cv-00090-DWM Document 1 Filed 05/16/22 Page 16 of 16
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`Blankenship Bridge on the Gravel Bar of the Middle Fork of the
`Flathead River, pending release and implementation of the final
`Comprehensive River Management Plan for the Flathead River;
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`d. That the Court award Plaintiffs their attorney’s fees pursuant to 42
`U.S.C. § 1988;
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`e. That the Court award Plaintiffs costs of suit; and
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`f. That the Court grant such other and all relief to which Plaintiffs are at
`law or equity entitled.
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`Dated this _13_ day of _May________, 2022
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`Weinberg & Hromadka, PLLC
`
`By:
`Lindsey W. Hromadka
`Attorney for Plaintiffs
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`COMPLAINT AND JURY DEMAND
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`Page 16 of 16
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