These are strange and confusing times in Idaho. Shocking events are taking place! Federal District Court Judge Lodge has ruled against the constitutionality of a 1995 closure order. On January 14, 1997, Judge Lodge had a revelation. He overturned the Dirty Dozen's convictions of violating a closure order during a blockade of the Jack Road at Cove/Mallard in August of 1995. Lodge found that the closure order was a violation of First Amendment rights because the US Forest Service had no "standards and conditions" for granting permits to enter the closed area. Judge Lodge wisely ruled that leaving such decisions up to the arbitrary whims of the Nez Perce National Forest was dangerous and unconstitutional. The strange part is that Lodge is the same judge who convicted and sentenced numerous activists in 1993 for violating a closure order which was yet more arbitrary.
In related news, the "Filthy Five" appeared before Judge Williams for sentencing on January 22. The Five were busted for a 40-day blockade and occupation of the Jack Road on August 7, 1996. All five were convicted of violating a closure orderïthree were also convicted of "maintaining a structure." Although Judge Williams actually slept through parts of the trial, he appeared awake for sentencing. Williams started the hearing by mentioning Judge Lodge's decision and the possible impact on his guilty verdicts. Surprisingly, the Judge refused to throw out the closure violations. Instead he asked both the defense and prosecution to submit briefs on the issue in 15 days. Sometime after that he will decide the correctness of his earlier verdict. The Judge then had to listen to the defendant's cynical "pre-sentencing statements." Instead of apologizing or saying they would never do it again (as is expected), each defendant passionately defended their actions and raised their voices for the creatures, trees, plants and fish. They all vowed to continue defending Cove/Mallard from the Forest Service and its contractors. His response was predictable: stony and hostile silence. Judge Williams then gave the defendants a lecture on following the law. He accused the Five of taking the law into their own hands and destroying a good road in the process.
The pre-sentencing reports produced by the US Probation Office recommended that each defendant collectively or singly pay the road contractor $5,700 in restitution for road damage, even though no one was charged with destroying the road. This pre-sentencing report justified harsh sentences by saying it would "deter" others from protesting at Cove/Mallard. It asked for 90 days of jail and restitution for Zak and Michael and "only" 60 days and restitution for first time offenders, Forrest, Rachel and Sean.
Ihor Mezereck, the supervisor of Nez Perce National Forest says that he will continue to issue closure orders and that the Forest Service will study Judge Lodge's reversal and attempt to comply with his ruling.
What does this mean to activist defending National Forests? It could mean the end of all closure orders until the regulations are re-written. To challenge a closure, we suggest that you first apply to enter any closed area. Make sure to get copies of your request and their answer. Then, use Lodge's order in court when you go to trial. If you're on trial, appealing a closure conviction or just want a copy of the order, contact the Cove/Mallard Coalition. Please include a couple of dollars. The document is 20 pages long and will cost a bit to send. Also contact the Coalition to support the defendants or get more information on upcoming actions. Cove/Mallard Coalition, POB 8968, Moscow, ID 83843; (208) 882-9755; fax (208) 883-0727; e-mail cove@moscow.com.