NEPA abuse in travel planning

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).

11 Comments

  1. If these “unauthorized roads” are jeep trails or whatever created by users, the Forest didn’t need to go thru NEPA, but just close the damned things. In theory, of course. The illegal use will likely continue regardless. A losing cause.

  2. Only in Idaho, I guess…. I’d hate to have the job of re-writing that EIS. Seems like the federal action was in deciding which authorized roads to keep in that status. Anything not so designated would be de facto off-limits to motorized vehicles according to existing regulations. It doesn’t seem like enforcing existing rules (e.g., by barricading an unauthorized road entrance) would amount to a major federal action. And as you suggested, it’s a very Alice-in-Wonderland disconnect here. I’m all for having the FS, within reason, evaluate the effects of actions they actually plan to take. But to ask them to evaluate the effects of something they never planned to do anyway (what would that be? authorizing currently unauthorized roads?) makes little sense. The DOJ folks must be scratching their heads on this one…

  3. Ed and Guy – Well said

    I agree – this would be nonsense except that the definition of illegal isn’t what it used to be as in illegal aliens who are legal because some in power don’t want to enforce the law. By extension “972 miles of unauthorized roads” are now authorized and closing them has to be justified. Political correctness and spin by those in power have made language worthless since words can be twisted to mean anything as long as the spinners are supported by those who are willing to compromise the truth to achieve their goals. After all it all depends on what the meaning of “is” is 🙂

  4. I’ve been resident of Valley County for over 30 years. The unauthorized road and user created road is a bit of a misnomer. These roads just did not suddenly appear. Many of them were built over 50 years ago. The terrain in Valley County is generally not that conducive to off- road travel by full size vehicles. In the back country near the communities of Yellow Pine and Big Creek, many of the roads were and are for mining access. They were not FS system roads, but have had established use for years. They were allowed at the time they were built. So these roads evolved from non-system roads, to unclassified roads, to undetermined roads, and now to unauthorized roads. The FS has been fiddling with the definitions for roads for the past 20 years, causing confusion, both internally and with the public. At the time the Payette’s Forest plan was revised in 2003, the FS definition of “New Road Construction” was an activity that results in the addition of forest classified or temporary road miles. Therefore adding any of the so called unauthorized roads to the FS system would result in new road construction, which is restricted to the point of being basically prohibited in the Forest Plan for those areas mainly due to ESA consultation on listed fish species.

    The recent boom in ATV and UTV recreation use has increased the demand for open routes at the same time the FS has become more restrictive with Travel Planning. Recreation is looked as an important part of the economy especially since Valley County has lost their lumber mills. The condition of these non-system roads vary from terrible to alright. Some of the roads are fairly benign while others have definite resource issues. I think part of the County’s issue is that the use on unauthorized roads was pre-decided in the Travel Management process.

  5. I can understand closing roads and trails that are causing actual resource damage or harm. But closing everything because it wasn’t built by USFS or isn’t official is arbitrary and capricious on its face. As for Winmill’s ruling, he’s ruling on a technicality and I can’t imagine what help it is unless it requires future NEPA documents to “fully disclose” the closure effects — more blab, less do.
    One effect I doubt will ever be disclosed is the loss of future management access via closures.

  6. My point was that this doesn’t make sense in the legal world, so of course it doesn’t make sense in the physical world (avoiding for now the debate about whether these are actually different worlds).

    I appreciate MD’s spotlighting the likely real issue here – an agency decided on an action prior to NEPA. I think that is often an underlying issue, but it’s usually a hard case to prove. And so these plaintiffs attacked from a different angle and succeeded in getting the judge confused.

    The rest of the travel planning story on the Payette is that there will be a more site-specific look that may result in adding some of the ‘unauthorized’ roads to the designated system (although that didn’t happen in the first area, and plaintiffs lost their lawsuit there).

  7. Jon, I think you’re disagreeing with the decision. It’s frustrating, isn’t it, because others (like us) than the parties involved just stand on the sidelines? even though we all have interests?

    And if you think the judge is wrong, but it doesn’t get appealed for reasons you can’t control (because the plaintiffs and DOJ make the decision depending on what side wins), that’s also frustrating. I think many people, including some elected officials also find that a frustrating way to deal with land use decisions.

    But I don’t agree with you that “this doesn’t make sense in the legal world, so of course it doesn’t make sense in the physical world.” I don’t think things work that way.. it could make sense in neither world, in one but not the other, or in both.

    It kind of makes sense to me that if are deciding to change conditions in a travel management plan, you do the analysis and you make the decision. You don’t take a subset of what you are studying and do pre-predecisional decisions. (Now that’s not Physical World nor Legal World, it’s Clarity With The Public of What’s Being Decided. )

  8. I don’t follow your last two sentences at all – sorry.

    If a decision is made here to let environmental harm continue, I think that could be challenged.

    Here is sort of the same thing back on the ESA topic (though I have a little trouble seeing how agreeing to meet ESA timeframes could be a violation of ESA): http://www.foxnews.com/politics/2014/03/18/lawsuit-challenges-feds-over-sue-and-settle-tactics-on-endangered-species/?intcmp=trending

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