Badger-Two Medicine lawsuit spurs debate

Karl Puckett

Sides are lining up in court over a ban on motorized recreational vehicles in 130,000 acres of the Lewis and Clark National Forest, with separation of church and state sharing stage with disagreements over access and environmental impacts.

On Friday, the Montana Trail Vehicle Riders Association, Capital Trail Vehicle Riders Association and Montanans for Multiple Use, as well as several individuals, filed an injunction against the forest in U.S. District Court.

The injunction seeks to bar the U.S. Forest Service from implementing the motorized vehicle ban until a lawsuit challenging it, brought by those same groups, is resolved.

The ban, which went into effect Oct. 1, allows travel only by foot or horseback in the remote and mountainous Badger-Two Medicine area adjacent to the Blackfeet Indian Reservation and south of Glacier National Park.

When he announced the decision in March, forest Supervisor Spike Thompson cited protecting the unspoiled landscape and its cultural importance to the Blackfeet as reasons for the plan.

"These are federal lands owned by all Americans — and they shouldn't be abused," said Lou Bruno, one of the founders of the Badger-Two Medicine Alliance. "The Forest Service has a mandate to preserve it for the most people for the longest period of time."

The alliance has asked the court to allow it to intervene in the case in support of the Forest Service's decision.

With enforcement lacking, motor vehicle users are scarring the land, and the group supports the ban, Bruno said. Using four-wheelers or motorcycles, more people are now reaching backcountry areas, which adds pressure on sensitive species, such as pure west-slope cutthroat trout, he said.

Outfitter Hugo Johnson said it was wrong to let what he described as a small group try to force the Forest Service into throwing out the travel plan, but Corey Swanson, an attorney for the motorized user groups, said the agency violated the U.S. Constitution in closing the area to motorized vehicles.

"This particular plan imposed the Draconian closures to motorized recreation throughout the Badger-Two Medicine for the specific purpose of advancing the practice and experience of traditional Native American religion," Swanson states in the injunction.

In an interview, he said the injunction was filed because the lawsuit could drag out for a couple of years, leaving motorized recreationists without access in the meantime.

The Forest Service, by banning motorized use, in part, so it doesn't interfere with traditional Native American religious practices such as vision quests, is violating a ban on the government establishment of a state religion, Swanson said.

The First Amendment of the Constitution states that, "Congress shall make no law respecting an establishment of religion."

While the travel plan discussed other issues, such as user conflicts, wildlife and preservation of archeological sites as factors in supporting motorized restrictions, none of those factors required a complete closure to motorized access, the lawsuit states.

Swanson said the forest travel plan states that the area is significant because of its religious use and that motorcycles or all-terrain vehicles have the potential to interrupt traditional practitioners.

"It doesn't matter what religion is being favored," Swanson said.

So-called establishment clause cases involving Christian religious symbols, such displaying the Ten Commandments on public land or in public buildings, are not unusual, he added.

Last week, a cross that's located on public land in the Mojave National Preserve in California was at the heart of an establishment clause case argued before the U.S. Supreme Court.

"To say it was a decision that just deferred to Native American religious interests is just ignoring reality," Tim Preso said of the motorized use restrictions in the Lewis and Clark National Forest. Preso is an attorney for Earthjustice, which is representing the Glacier-Two-Medicine Alliance. "It was a decision that responded to the overwhelming wishes of the public."

In 2002, when the plan was up for public comment, 90 percent of the people who commented favored a conservation-based plan, Preso said.

The public isn't being banned from the area as some are arguing, he added, only the method of access has changed.

"It's a wildlife ecosystem up there," said Keith Tatsey, chairman of the Blackfeet Community College's Natural Resource Department. "It needs to be preserved as much as possible just for down the road."

Tatsey was chairman of a tribal committee formed to work with the Forest Service on its travel plan for the Badger-Two Medicine area. He said the plan the forest chose was one devised and backed by that committee.

One of the plaintiffs in the lawsuit brought by the motorized users is a member of the Blackfeet Tribe, but Tatsey said the tribal business council passed a resolution supporting the travel plan.

Historically, the Blackfeet Tribe has used the area for hunting, gathering of medicinal plants and religious practices, Tatsey said.

The lawsuit also states that the Forest Service ran afoul of the Blackfeet Treaty of 1895, which allows Blackfeet Tribal members to use any portion of the area.

"It (access) is not limited to 1895 technology," Swanson said.

Dave Cunningham, a spokesman for the Lewis and Clark National Forest, said he couldn't comment on the legal filings, but noted the decision to close the Badger-Two Medicine area to motorized use will stand unless a judge says otherwise.

"You have two groups with strong interest in the area, and they're both working through the process to influence the decision," he said.

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Source: http://www.greatfallstribune.com/article/20091014/NEWS01/910140302/Badger-Two+Medicine+lawsuit+spurs+debate

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