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Glisson v. United States Forest Service

December 8, 2008

JOSEPH M. GLISSON, PLAINTIFF, AND SAM STEARNS AND JOHN B. WALLACE, PLAINTIFF-INTERVENORS
v.
UNITED STATES FOREST SERVICE, HURSTON A. NICHOLAS, SUPERVISOR, SHAWNEE NATIONAL FOREST, AND TIM POHLMAN, DISTRICT RANGER, SHAWNEE NATIONAL FOREST, DEFENDANTS, AND SHAWNEE TRAIL CONSERVANCY, DEFENDANT-INTERVENOR



The opinion of the court was delivered by: J. Phil Gilbert United States District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the Rule 60(b)(5) motion to dissolve injunction and end judicial oversight filed by defendants the United States Forest Service ("Forest Service"), Shawnee National Forest ("Shawnee") Supervisor Hurston A. Nicholas and District Ranger Jeffrey C. Seefeldt (Doc. 153).*fn1 The Court construes the motion as being pursuant to Federal Rule of Civil Procedure 60(b)(5) for relief from judgment because the judgment has been satisfied and it is no longer equitable to apply it prospectively. Plaintiff-intervenors John B. Wallace and Sam Stearns responded to the motion (Docs. 154 & 157) objecting to the end of the Court's oversight of this matter.

I. Background

This case has taken the Court down a long and interesting trail. It began in August 1999 when plaintiff Joseph M. Glisson, an ardent pro se environmentalist litigant, filed this suit complaining that the Forest Service had improperly decided (1) to allow equestrians to use user-created trails in the Lusk Creek and Jackson Hole natural areas in the Shawnee, (2) to allow outfitters and guides to operate on the Shawnee without special use permits and (3) to allow such operations without conducting an environmental analysis. Shortly thereafter, the Shawnee Trail Conservancy, a coalition of horseback riding enthusiasts, intervened in the case. In March 2000, the Court entered judgment that included declaratory relief finding that the Forest Service's (1) failure to require special use permits for outfitters and guides on the Shawnee and (2) failure to conduct an environmental analysis for outfitter and guide applications were improper.

In late 2002, Wallace and Stearns became upset with the Forest Service's efforts at complying with the March 2000 judgment and sought to intervene in the case to enforce the judgment. After a hearing in April 2003, the Court issued injunctive relief designed to speed up the Forest Service's special use permit review process. Nevertheless, the parties' relationship continued on a downward spiral characterized by their inability to trust or communicate clearly with each other. Eventually, with all parties' assent, the Court took the unusual step of becoming a mediator instead of an adjudicator. If the Court was going to resolve the issues raised by this litigation for the present and future, it had to think outside the box.

The Court's mediation efforts included numerous ex parte sessions with each contingent and culminated in a visit to Lusk Creek Wilderness on one of the coldest days of January 2005.

In a prior order, the Court commented on the condition of the area at that time:

The influence of modern man on the area is negligible. With the exception of noticeable but unobtrusive natural area boundary markings, it truly retains a great deal of its "primeval character" and its natural condition. However, the Court also saw damage to trails and areas near them such as, for example, where equestrians have crossed Lusk Creek illegally, mud (frozen at the time) that had been churned up by horses, rare plant species that had been trampled by horses, trees that had been damaged by horses tethered close by and spots where the lack of vegetation (from horse traffic and other causes) had allowed significant erosion. The Court also saw an approved equestrian creek crossing on a designated equestrian trail that had been constructed by the Forest Service to withstand horse traffic without significant environmental degradation as well as a sensitive area of the rare black cohosh plant that the Forest Service had closed to equestrian and foot traffic. In sum, the Court saw the attraction, the problem and the solution, all in a day.

Report & Recommended Resolution at 8, Doc. 92 (Mar. 1, 2005).

The Court ultimately recommended a resolution it believed was fair and equitable to all parties. The solution involved trail management, equestrian restrictions, law enforcement, resource monitoring and public education. The measures were intended to be temporary until the Forest Service could implement a trails designation plan. The recommendation further recognized that, as the conflicts between the parties did not arise overnight, they would not be resolved overnight either. Messrs. Glisson, Wallace and Stearns and the Shawnee Trail Conservancy accepted the recommended resolution, and on March 17, 2005, the Court ordered its terms to be implemented.

Since that time, the Forest Service has obtained substantial funding to implement the Court's March 17, 2005, order and has made remarkable progress on rehabilitating the Lusk Creek Wilderness to a wilderness state. The Forest Service has completed the appropriate environmental analysis and continues to monitor the Lusk Creek Wilderness, and equestrian guides and outfitters now operate there under permit. In Forest Service's opinion, the Lusk Creek Wilderness is being protected and preserved and the injunctive relief and judicial oversight ordered by the Court is no longer required. For this reason, it has moved to vacate the Court's injunctions and oversight.

II. Analysis

Under Federal Rule of Civil Procedure 60(b)(5), the Court may, in its discretion and on terms that are just, relieve a party from a final judgment, order or proceeding if the judgment has been satisfied or if it is no longer equitable to apply the judgment prospectively. The Court has flexibility to exercise its Rule 60(b)(5) power in light of changes that occur during the life of the judgment. Rufo v. Inmates of Suffolk Co. Jail, 502 U.S. 367, 380-81 (1992).*fn2 This is particularly true in litigation like the case at bar where the Court's orders reach beyond the parties and impact the public's right to sound, efficient government. Id. at 381. The party seeking relief from judgment bears the burden of establishing that changed circumstances of fact or law warrant relief. Id. at 383. The Court should then consider whether the relief sought is suitably tailored to the changed circumstances. Id.; see, generally, United States v. Krilich, 303 F.3d 784, 790 (7th Cir. 2002).

The factual circumstances that existed when the Court issued its judgment and orders in this case have changed substantially. The conditions in the Lusk Creek Wilderness about which the plaintiff and plaintiff-intervenors originally complained no longer exist. Equestrian outfitters and guides now operate under permit in accordance with an established permit program. The Forest Service has studied the impact of the trail system on the environment and has improved the trail system by creating or improving trails that are fit for equestrian traffic and closing ...


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