The basic requirement of NEPA is to evaluate environmental impacts before taking action. Thus, the Payette National Forest prepared an EIS before implementing a travel management plan. Part of that decision included closing all user-created roads until their effects could be site-specifically evaluated.
The Forest Service was sued for violating NEPA “because they fail to disclose and evaluate the impacts of 972 miles of unauthorized roads” (Valley County, Idaho v. USDA). The judge was concerned that, “motorized vehicle use, particularly on roads with stream crossings or that run along streams, damages watershed conditions” (effects of closing roads on motorized users were not an issue in this opinion). The court borrowed reasoning from cases about using ‘proxies’ for the effects of timber sales to agree with the plaintiffs. The parties are now discussing the appropriate remedy.
What would you advise? Should the Forest Service re-open the closed roads while they re-evaluate the effects on watersheds of leaving them open? Or should they close them until … ?
I think the judge took his eye off the ball here and is not looking at the effects of the action the Forest Service is taking. The action is to close the roads; the effects at issue are the effects of NOT closing them. The court’s confusion could lead to NEPA being misused as a barrier to achieving its intended purpose as “our basic national charter for protection of the environment” (40 CFR 1500.1).