On November 5th, 2014, the U.S. Court of Appeals for the 4th Circuit in Richmond, VA, rejected American Whitewater and other boaters’ arguments that the Forest Service must allow more boating on the Upper Chattooga, supporting the March 30th, 2013, decision of the U.S. District Court in the District of South Carolina. This judgment was in response to appeals that both ForestWatch (represented by Rachel Doughty (Greenfire Law), and Susan Richardson and Alex Bullock (Kilpatrick Townsend & Stockton)) and American Whitewater filed in December 2013. Most importantly, the Court of Appeals held that boating is not an ORV (Outstanding Remarkable Value) that must be protected before other values (scenic, recreational, geologic, fish and wildlife, historic, cultural). This is consistent with our interpretation of the Wild & Scenic Rivers Act and tremendously good news for the Chattooga and other Wild and Scenic Rivers.
ForestWatch got involved in the boaters’ case as an intervenor because the boaters’ arguments challenged the Forest Service’s ability to regulate recreation, placing management of particular recreational pursuits above conservation as a priority on Wild & Scenic Rivers and in Wilderness Areas. Forest Watch was concerned about the terrible precedent a ruling in favor of the boaters could set, not just in the Chattooga Corridor, but nationwide. So this recent Appellate decision supporting the Forest Service’s ability to manage recreational activities in the Wild & Scenic Corridor accomplishes much of what ForestWatch set out to protect, and all the folks involved in this fight (particularly Joe Gatins, Wayne Jenkins and our legal partners, Rachel Doughty, Susan Richardson and Alex Bullock) should be proud of ForestWatch’s staying power and role in facilitating this decision!
Although this appellate decision puts an end to the American Whitewater and boaters’ lawsuit, Georgia ForestWatch still has a pending case. In December 2012, ForestWatch lawyers filed a complaint and motion to enjoin boating on the Upper Chattooga, challenging the Forest Service’s failure to protect the exceptional
natural resource values which caused the Chattooga to be designated a Wild & Scenic River. Our arguments cited the Forest Service’s failure to appropriately plan access to the Chattooga Corridor, including reliance on user-created access trails, lack of a single comprehensive management plan for the Corridor, failure to
complete a visitor capacity analysis, and self-registration by boaters at locations prohibited by their own federal regulations. Although we filed a motion to consolidate this case with the boaters’ case, our motion was denied. That case is still alive, and if we are unable to settle with the Forest Service, briefing will be completed in the first half of 2015.
Since filing our complaint and motion to enjoin boating in December 2012, the Forest Service has started addressing some trail access issues we raised in their recent Chattooga Boating Access Environmental Assessment (EA). However, this EA does not go far enough to ensure the creation of sustainable trails, relying on usercreated features on soils that are described as having “high erosive potential.” The actions proposed still do not address the fact that the current boater permitting system will encourage boaters to violate Federal Regulations. The EA fails to discuss that registration stations are provided at the new upstream put-ins which are not among those permitted by Forest Service regulations. In the alternative, it fails to analyze the impacts of requiring boaters to register at downstream locations before putting-in at the newly proposed upstream locations.
The Forest Service is in this predicament because it did not examine the impacts of access before locking itself into allowing boating on the Upper Chattooga in the first place.
Even with our case pending, as always, we will continue to work with the Forest Service to ensure that all access trails are sustainable and minimize soil erosion and sedimentation of the Upper Chattooga, and that the issues with the boater permitting system be resolved.