Forest Service Accused of Chicanery

April 29, 2005

Liberty Matters News Service

The U.S. Forest Service is being sued for $2.5 million by a man who alleges the Service shut down bridges to his property, thereby preventing him from managing his wilderness lodge. Jeff Mummery is the managing partner of The Sweetwater, an LLC formed to purchase property for the lodge in 1995. Mummery's attorney, Kevin Garden, said the issue is whether the Service committed a breach of contract. Garden indicated things look promising for his client because Senior Judge James Merow of the U. S. Court of Federal Claims recently forwarded the case for trial and is a precedent with positive implications for other forest lodge owners/permittees. "He's [Judge Merow] saying this (recreational permit) is a contract," Garden said. Mummery's suit claims evidence shows the Forest Service had inspected the bridges in 1992 and deemed them unsafe, but didn't divulge the information to Mummery. Furthermore, the Forest Service sought and received funds to repair the bridges, but sent it back to the regional office. The Service chose not to fix the bridges because it hoped to get a 'conservation buyer' who would tear down the buildings and abandon the lodge, Garden told reporters. "I've lost years of revenue," Mummery said. "I'm out eight or nine years of business."

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Lodge owner sues Forest Service - By CAROLE CLOUDWALKER

A $2.5 million lawsuit filed against the Forest Service by Jeff Mummery of Cody will go to trial here in September. Mummery's attorney says the case could establish a precedent for cooperation between the agency and recreational permit holders. At issue is whether the Forest Service committed a breach of contract with Mummery, his attorney, Kevin Garden of Washington, D.C., said last week. Mummery is managing member of The Sweetwater, A Wilderness Lodge, LLC, a corporation formed in 1995 to purchase the property from Dave and Nancy Brannon. The lodge operated for one season before its access was deemed unsafe by the Forest Service. The agency cited unsound bridges as the reason for locking the road in April 2001. Forest Service estimates at the time indicated it could cost as much as $500,000 to make the road and bridges safe. Department of Justice (DOJ) spokesman Charles Miller said the case has been assigned to Judge James Merrill of the Court of Federal Claims, who is expected to travel from Washington, D.C., to Cody to hear the case Sept. 19. Garden said the fact that Senior Judge James Merow of the U.S. Court of Federal Claims recently forwarded the case for trial is an initial victory and a precedent with positive implications for other forest lodge owners/permittees. "He's saying this (recreational permit) is a contract," Garden said. Previously the Forest Service maintained that such permits were merely licenses, Garden said. The implication is that the Forest Service has contractual obligations to permittees, Garden said. The extent of the obligations will be determined at the trial, though this court has jurisdiction only to make monetary awards, he added. Both the DOJ and Shoshone Forest Supervisor Becky Aus said they were not allowed to discuss the case. Mummery's lodge, which has been closed since February 1997, is 3.5 miles north of the North Fork Highway near Wapiti Campground. The only access is Forest Road 423, a single-lane dirt and gravel road that crosses the Sweetwater Bridge and two smaller bridges. While the Sweetwater Bridge is rated and considered safe, the smaller bridges across meandering Sweetwater Creek are points of contention, Garden says. All three bridges have been locked to vehicular traffic by the Forest Service since April 2001. Garden said Mummery's monetary claim is based on the value of the lodge, the value of the land as a leasehold, revenue Mummery lost for up to nine years when he was prevented from operating his business and his expenses to maintain the property during that time. Mummery bought the property in 1995. In 2001 the Forest Service announced closure of the two bridges and barred traffic over the main Sweetwater Bridge. Mummery filed his suit in December 2002. A 2001 Forest Service press release indicates the two small bridges were unsafe for vehicles or even horses to use and advised fording the steam. Public access to the area on foot or horseback still was allowed. Fording also was proposed to Mummery by the forest as a temporary means of accessing the lodge. The bridges had been inspected by Forest Service personnel in 1992, when there was a recommendation that they be closed, according to court documents. Main points in Mummery's suit, Garden said, include the fact that the bridges were inspected and found basically unsafe, yet Mummery was not told this and did not learn of it until he filed his lawsuit. Work on the lawsuit also led him to information about an 1997 internal handwritten Forest Service note indicating the two small bridges were deemed "essentially condemned," Mummery said. Mummery said he had buyers for his lodge in 1997, but they "disappeared" when forest personnel shared the note's contents with them. Mummery said he met with forest personnel concerning bridges before he bought the lodge, and "they never mentioned the inspection or that the bridges were found to be inadequate." The forest maintains that Mummery was worried about the structures and was discussing their replacement when he purchased the lodge. The agency says he declined to enter into a joint maintenance agreement. Mummery says he refused because he did not own or control access to the public road or the bridges and did not want to be liable for them under those circumstances. In 1997 the Forest Service sought funds for replacing the bridges, "and in 1998 (they) got the money for those bridges, but they sent it back to the regional office," Garden said. "They have a duty to cooperate, and they never told him (Mummery) about the funds." His case focuses on the argument that the agency should have told Mummery about the bridges and should not have returned money that would have paid for their replacement. The forest chose not to fix the bridges because it hoped to get a "conservation buyer" who would tear down the buildings and abandon the lodge, Garden said. "Forest Service cooperation is critical - they control the operation" of lodges, Garden said. "I've lost years of revenue," Mummery said last week. "I'm out eight or nine years of business."