The Ninth U.S. Circuit of Appeals handed down an intriguing ruling recently in a case that involves closing roads to motor vehicles on the Eldorado National Forest in California.
This, obviously, is of more than passing interest to many local residents, as the Wallowa-Whitman National Forest's controversial Travel Management Plan (TMP) is pending.
The Eldorado National Forest case involves a lawsuit brought against the Forest Service by Public Lands For the People, a nonprofit organization in California, and by several miners.
The plaintiffs contend that the Eldorado National Forest lacked the authority to require miners to file a Notice of Intent or Plan of Operations if they want to continue to drive motor vehicles on roads otherwise closed to such vehicles by that forest's TMP.
The Appeals Court disagreed.
In her written opinion, Judge M. Margaret McKeown cited a previous federal case which concluded that "there can be no doubt that the Department of Agriculture (of which the Forest Service is part) possesses statutory authority to regulate activities related to mining - even in non-wilderness areas - in order to preserve the national forests."
McKeown also wrote that the Eldorado forest's TMP "is not an indirect prohibition on mining operations masquerading as an access regulation, and its access restrictions aren't unreasonable."
The judge noted that the TMP doesn't prohibit miners from accessing their claims - it requires that they get written permission first.
This seems to us an unnecessary layer of bureaucracy, but the judge's conclusion is logical.
The more troubling aspect of her ruling, though, is her endorsement of the Forest Service's claim that roads closed to motor vehicles by the TMP "are no longer public roads."
So what are they?
Not private roads, certainly, because they still run across public land.
We understand that the Forest Service, if it can legally decide that a road is no longer public, can also reverse that designation.
Yet we're disturbed that the second highest court in the land would conclude that, in effect, deleting "public" from any piece of public land is acceptable. A road that's not public could, in theory, be closed to more than just motor vehicles. The public, for instance.