In a special board meeting, the NMOVHA Board of Directors voted unanimously to appeal Judge Johnson's recent ruling against our lawsuit. This decision was reached after a thorough discussion of our case, the costs of an appeal, and the advice of our attorney Karen Budd-Falen. The appeal will be heard by the US 10th Circuit Court of Appeals.
Why We Are Appealing: Judge Johnson agreed with the major point of our legal challenge, but decided that point wasn't enough to throw out the Santa Fe's travel management decision. Our attorney strongly believes the judge's decision is not in accordance with the law. By appealing, we have another chance to argue the case before the higher level court. If we don't appeal, the case is finished. Can we win? Quite possibly. Can we lose? We can; but we definitely have lost if we don't appeal.
What Laws Were Broken? The law says the environmental impact statement's "no action" alternative (the baseline condition) must include all the roads and trails that were legal to use. The Santa Fe National Forest environmental impact statement (EIS) deliberately excluded 2,200 miles (about 30%) of roads and trails. The Forest Service fully acknowledged these excluded routes were part of the official transportation system.
They Did What? Imagine you have $7,200 in bank. Then the bank decides it will only count $5,000 because you are "not using" the other $2,200. And your $2,200 disappears. Sound insane? The Santa Fe National Forest did just that. It closed those 2,200 miles under the excuse that the public wasn't using them. Our lawsuit argued that the 2,200 miles must be counted because thy were official, existing, and legal to use. The judge agreed it was illegal not to count them; but then he let the Santa Fe National Forest do it anyway.
The judge's decision unexpectedly created another legal issue. There is a specific law that determines whether an EIS is legal or illegal. It's called the Administrative Procedures Act (APA). The APA has two standards (or requirements) for legality. The APA says that to be legal, an EIS must obey both standards. An EIS is illegal if it violates either one OR the other standard. we believe that Judge Johnson did not properly apply the APA. He ruled the Santa Fe's EIS violated one of the two standards, but also ruled that the EIS was still legal. This is like saying it's OK that you were driving without insurance because your car is registered. The driving laws says you are driving illegally if you are missing either insurance OR registration. It is not possible to be missing either one and still be driving legally. But that is just what the judge did. He decided that the EIS was still legal even though it violated one of the two APA standards by "being contrary to law."
This decision creates a legal precedent that makes it twice as hard to fight any agency action in court. You would have to prove an EIS violated both APA standards, instead of just one. This would apply to any lawsuit in the country, filed by anyone, against any agency. Our NMOHVA lawsuit is the only way to overturn the Santa Fe's travel management closures, but now our lawsuit has also become something larger and of national importance.
What Happens Next: We have 60 days from the court's decision to file a Notice to Appeal. It generally takes another 30 days before we get a schedule back from the court. We then would have 30-60 days to file our initial brief. The Department of Justice (representing the Forest Service) and the Western Environmental Law Center (representing the interveners: (Center for Biological Diversity/Sierra Club/WildEarth Guardians) will also file briefs. NMOHVA's legal team will then file a final brief before arguing the case before the 10th Circuit judges in Denver, Colorado.
