To Sue or Not to Sue

When the Forest Service asked the public what issues should be addressed in the wilderness management plan currently being drafted for the John Muir and Ansel Adams Wildernesses, the agency received stacks of letters expressing concerns about the impacts of commercial stock use. The HSHA and many individuals requested that the plan specify meaningful limits and controls on the commercial mule-packing industry, in order to check the growth of commercial outfits and to protect the fragile high country and the experience of backcountry visitors. But agency managers didn’t want to address those contentious issues in the plan, and word soon leaked out that limits on commercial packers would be addressed instead during the permit renewal process for each individual pack station. It was a classic case of a bureaucracy trying to put off any hard decisions until a later date.

Then in November of 1996, the Sierra National Forest issued a new 10-year permit to the High Sierra Pack Station—without considering or mitigating the impacts of this operation on the backcountry, and without specifying any upper limits on the outfit’s use of the John Muir and Ansel Adams Wildernesses. In approving the new 10-year permit, the Sierra National Forest curiously stated that the issue of limits on commercial pack stations would be addressed during the ongoing wilderness planning process.

We at the HSHA weren’t placated by the obvious double-speak, and in January we filed a formal appeal asking the Regional Forester to overturn the new 10-year permit unless it was supplemented to include reasonable limits and controls to protect the wilderness.

Managers at the Sierra National Forest asked us to withdraw the appeal, insisting that the issue of limits on commercial use would in fact be addressed in the wilderness planning process, and that the limits adopted in the upcoming draft wilderness plan would then be incorporated into the High Sierra Pack Station’s permit. However, because agency managers had stated earlier that this key issue would not be addressed in the comprehensive wilderness planning process, we stood firm and asked the Regional Forester to rule on our appeal.

To our dismay, Deputy Regional Forester James Lawrence issued a decision in February 1997 allowing the new 10-year permit to stand—without requiring any upper limit on the number of backcountry trips that could be run by this outfit. After the Chief of the Forest Service elected not to review the matter further, our only remaining recourse was to file a lawsuit.

Our legal counsel informed us that we had an excellent chance of winning such a suit, because the Forest Service clearly abdicated its responsibility to evaluate the environmental consequences of allowing unlimited commercial use of the wilderness by this outfit, and because the agency failed to specify limits and controls needed to protect the wilderness character. But there was a catch. If we won the suit, the pack station could have been shut down, at least temporarily, which was absolutely not our goal. We simply wanted the agency to: (1) take the requisite “hard look” at the impacts occurring due to the outfit’s current operations, (2) adopt reasonable limits and controls to mitigate those impacts, and (3) assure that the outfit would not be allowed to incrementally and continuously expand without careful environmental analysis and full public involvement.

We discussed all of these issues with the pack station owners, John and Jenise Cunningham, who were very cordial. They seemed genuinely sensitive to our concerns about the impacts of stock use, and they clearly shared our concern that our nation’s rapidly expanding population could put excessive demands on the High Sierra backcountry unless both commercial and private use is carefully controlled. We agreed with the Cunninghams that the best place to evaluate and specify such use limits is in a comprehensive wilderness management plan—a plan that takes a detailed look at the entire area, not just the locations used by one outfit.

After discussing these issues and concerns with our attorneys, the Cunninghams, and at great length amongst ourselves, we decided not to file the lawsuit. We have decided to instead wait and see if the Forest Service fulfills its promise to adequately address these issues in the upcoming wilderness management plan for the John Muir, Ansel Adams, Monarch, and Dinkey Lakes Wildernesses. We truly hope that it does. If it does not, we will likely have no alternative but to press these issues as each pack station’s permit comes up for renewal. Such an approach would create unprecedented hassles and expenses—both for the HSHA and the Forest Service, as well as for all of the affected pack station owners—and we truly hope to avoid such confrontations. But if the Forest Service refuses to adequately address these issues in a comprehensive wilderness management plan, legal action may be the only way to ensure adequate protection for the High Sierra wilderness. By not filing this lawsuit, we (and everyone else involved) will know that the HSHA provided the agency with ample notice—and plenty of opportunity to address these critical issues—before taking actions that may cause delays in permit issuance to individual pack station owners.

In summary, our decision not to file a lawsuit in this case is intended to give the Forest Service more time, so that it can do the job right. All of us—hikers, stock packers, and taxpayers—stand to lose from Forest Service inaction on this issue. Let’s all hope the agency uses this window of opportunity wisely.

Update (November 2007): In the ten years since the above article first appeared in the HSHA’s Summer 1997 Newsletter, much has happened. The Forest Service released a draft plan for the John Muir, Ansel Adams, and Monarch wildernesses in 1998. That draft failed to specify meaningful limits and controls on commercial packtrain companies and contained only vague language (once again) that such issues would be addressed at some future date. The public comments on the 1998 draft were so overwhelmingly negative that the Forest Service rescinded the draft, and started over, yet again. All the while, the commercial outfits continued to grow. By the year 2000, lacking any meaningful response from the Forest Service, and convinced that the agency had little or no intention of placing reasonable limits on commercial enterprises that operate in these wildernesses, in April 2000 the HSHA filed a complaint in federal district court alleging that the Forest Service had violated several laws in allowing the commercial outfits to continually expand. The legal process has been long, slow, difficult and expensive, but justice appears to be finally near. Between 2001 and 2007, there have been four court decisions in our favor (see the Resources section of our website to view the court rulings). The courts have found that the Forest Service violated both the Wilderness Act and the National Environmental Policy Act (NEPA) by allowing the commercial enterprises to expand without reasonable limits or honest consideration of the harm that they cause. However, the issues are still not finally resolved. The HSHA is currently seeking a settlement or court injunction to limit commercial packtrains and to repair the harm caused to these wildernesses by excessive commercial activity over the years. Throughout the process, we have made clear to all involved that we do not seek to eliminate commercial packstock from these wildernesses. We continue to advocate what we have sought from the beginning—reasonable, science-based limits and controls that will allow continued commercial packstock uses while protecting these wildernesses from avoidable harm. Stay tuned!!!