More Developments in the Yellowstone Courtrooms

More Developments in the Yellowstone Courtrooms

Date: 05/27/2008

Last month we provided you an update on the end of the winter season in Yellowstone and summarized the early posturing in the various challenges to the new winter use rule in federal courts in Washington DC and Wyoming. Rulings have since issued on some of those motions, making a new update appropriate.

You will recall that Park Service defendants had filed motions in both courts seeking to have the cases consolidated in one forum. The DC court denied the motion in an order filed April 24, 2008. The Wyoming court similarly denied the motion in an order filed May 14, 2008. As a result, it appears we will face the potential for conflicting decisions from the DC and Wyoming courts as occurred during the last round of litigation. Both courts emphasized the importance of honoring a plaintiff's choice of venue, with the Wyoming court making it clear it has no intent of relinquishing jurisdiction in stating: "[t]he D.C. Petitioners, largely environmental action groups, have tried to circumvent this Court's continuing jurisdiction by conveniently filing their action in a Court over 2000 miles away. By granting the Federal Respondents' motion to transfer, this Court would in effect be condoning this type of inappropriate litigation practice. Luckily, this Court knows blatant forum shopping when confronted with it. As the private and public factors heavily favor the Petitioners, the motion to transfer must be denied."

In an additional procedural matter, the Wyoming court, on May 23, 2008, granted a motion to compel production of further documents filed by the State of Wyoming. In producing the administrative record, the Park Service defendants withheld approximately 35 documents, claiming them to be protected by deliberative and/or attorney-client privilege. The State of Wyoming successfully argued that defendants must produce a "privilege log" identifying these documents so that the parties and the court can evaluate whether the privilege(s) are correctly asserted.

The schedules for briefing the merits are set, with the anti-access plaintiffs having filed their opening materials in DC on May 9, 2008. The defendants and defendant-intervenors are scheduled to respond on June 16, 2008. That is the same day that opening materials are due from the "petitioners" State of Wyoming et al. in the Wyoming court. Briefing will continue in all cases throughout the summer, with final argument on the motions in the DC court set for August 27, 2008, and in the Wyoming court for September 15, 2008.

In the context of administrative law, this practically qualifies as high drama. The International Snowmobile Association (ISMA), American Council of Snowmobile Associations (ACSA), and the BlueRibbon Coalition (BRC) will be actively involved in all of these cases and will be busy defending continued reasonable snowmobile access to the Parks.

For additional details and continuing updates, please visit our dedicated Yellowstone website at (


Jack Welch, Special Projects Consultant, BlueRibbon Coalition
- Phone: (303) 279-8436 or Cell (303) 324-7185
- Fax: (303) 279-8214
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