Should Wilderness Be Safe?

Pacific Crest Trail thru-hikers had better be ready for a lot of detours in Oregon this summer. In November and December, after fire season-ending rain and snow storms, the Forest Service issued orders closing three of Oregon’s most popular PCT segments (e.g., Three Sisters & Mt. Jefferson), along with their associated wilderness areas and connecting trails. The reason? “Public Safety.”

This summer, fires burned parts of the wilderness areas that have been closed to the public. As with most western Oregon fires, the burns are a patchy mosaic of burn intensities. Ridge tops tended to burn hotter; valley bottoms cooler; many acres not at all. Fires are not uncommon in these Douglas-fir/western hemlock forests, with a return interval on the order of 100 years. The popular French Pete trail traverses through forests with numerous fire-scarred trees, snags killed by previous fires, and other fire-affected structure typical of the area’s old-growth forests. This trail, like dozens of others, is now closed to the public.

The Wilderness Act directs the Forest Service to manage wilderness areas for “their primeval character and influence” to “preserve natural conditions.” Wilderness areas are to be “affected primarily by the forces of nature” and “offer primitive and an unconfined type of recreation.” The Act’s only reference to safety is an exception to the ban on motorized equipment (e.g., aircraft) if “required in emergencies involving the health and safety of persons within the area.”

Even if the Wilderness Act countenanced a nanny state approach to wilderness management, the Forest Service did not explain its closure decisions, nor invite public comment on whether it’s too dangerous to hike in these woods. People do die in wilderness areas. They drown, freeze, fall off mountains, and have heart attacks. Trees cause about 1% of wilderness-related fatalities.

The default condition of national forests is that they are open, by law and without permit, to dispersed recreation. The Forest Service must follow the law when it decides to lock the public out. Under the Administrative Procedures Act, the Forest Service must explain its reasons, including how the facts support its conclusions. The Forest Service did not do so. The agency must also follow NEPA’s procedures, including explaining the degree to which its closure decision affects “extraordinary circumstances,” such as wilderness. The orders have an obvious and profound effects on wilderness and Pacific Crest Trail users, eliminating all forms of dispersed recreation. The Forest Service made no attempt to comply with NEPA.

What should our nanny state do?

24 Comments

  1. It doesn’t seem like a NEPA problem because if anything, the order is more protective of the environment, i.e., reducing human impacts. The question is whether the order is arbitrary and capricious. On its face, it seems clearly over broad.

    • It’s a cute argument, which I’ve tried before (roadless rule), but it doesn’t fly. NEPA’s environmental effects include more than the geophysical setting, e.g., recreational use. Effects must also be disclosed even if only positive. In other words, what triggers NEPA is the nature of the decision — is it a “major federal action”? The magnitude of the consequences of the action determines the level of analysis, e.g., EIS, EA or CE, not whether an analysis must be done in the first instance.

      • Andy – I believe that Horst Greczmiel of CEQ once told me that significant positive effects required an EIS. I filed it under “weird NEPA trivia” because I’ve never hear of anyone actually doing it, but, if it’s true and I didn’t misunderstand, I suppose someone could sue and make agencies do it.

        Also, not just wilderness areas are dangerous..11 people were lost on 14ers in 2017.
        http://www.denverpost.com/2017/09/15/colorado-fourteener-deaths-plan/

        There are many closure orders around, to protect species, and for a variety of other reasons including post-fire. I’ve always read them to “protect natural resources and public safety due to the impacts of the wildland fire” and they are not uncommon. Here’s a list for the Angeles..
        https://www.fs.usda.gov/alerts/angeles/alerts-notices

        • The Forest Service disagrees (not that I consider that dispositive!). It believes NEPA applies to closure orders, but that short-term closures can be categorically excluded from an EA or EIS. See, 36 CFR 220.6(d)(1). Long-term closures remain subject to the EA/EIS process. Even for a short-term closure, a CE requires the Forest Service to consider extraordinary circumstances, which, among other things, include wilderness.

          • I’m not sure listing something as Cat-ex implies that it would be subject to NEPA otherwise… Also, ponder whether a closure of wilderness to human use can result in “effects on the natural and physical environment” such that the closure is subject to NEPA. To me, that sort of puts FS in a catch-22: if wilderness is supposed to be untrammeled, how can keeping humans out be a significant environmental effect? If FS did NEPA on the closure, would it be admitting that management under the status quo isn’t doing the job to keep the area untrammeled?

          • I’m going there, Andy but given FS Handbook 31.2:
            “The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion (CE). It is the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions and if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determine whether extraordinary circumstances exist. (36 CFR 220.6(b))”
            Would a closure order have a potential effect on “wilderness” as a “resource condition”?
            “(3) Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas;”. I don’t think “wilderness” requires people in it to be “wilderness.”
            https://www.fs.fed.us/dirindexhome/fsh/1909.15/wo_1909.15_30.do

            • To repeat my comment from another thread:

              Here’s what the Supreme Court had to say about what kinds of decisions are subject to NEPA because they have adverse environmental impacts (Metropolitan Edison Co. v. People Against Nuclear Energy, 460 US 766, 1983):

              “NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment. If we were to seize the word “environmental” out of its context and give it the broadest possible definition, the words “adverse environmental effects” might embrace virtually any consequence of a governmental action that someone thought “adverse.” But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.”

              I could write a lot more about this – in fact I did when I was in law school. There is not a lot of appetite in the agencies or the courts for confining the reach of NEPA, but I don’t believe that closing areas to uses that have environmental impacts would trigger NEPA requirements.

              Veneman and some other cases charitably find that lack of forest management may lead to natural events that they consider “adverse” environmental effects. I find these poorly reasoned and I don’t think the government has tried very hard to argue against this. Here is the language from the 9th Circuit in that case on allowing non-environmental interests to sue under NEPA (keeping in mind that courts tend to be lenient in allowing standing to sue):

              “The Idaho plaintiffs have ownership interests in land next to the national forests. They allege that implementation of the Roadless Rule will lead to the spread of wildfire, destructive insects and significant harms to their land. The evidence before the district court suggested that implementation of the Roadless Rule and a resulting reduction in active forest management practices could lead to the spread of unnaturally severe wildfires, insect infestation and forest disease from the national forests to adjacent lands. As adjacent landowners, the Idaho plaintiffs have a “sufficient geographic nexus to the site of the challenged project that [they] may be expected to suffer whatever environmental consequences” may result from implementation of the Roadless Rule.”

              The 9th Circuit then removed the injunction imposed by the district court, recognizing the problematic NEPA circumstances: “This is an unusual case where an action, cessation of road development and repair in certain areas of our national forests, is being undertaken for the primary purpose of conservation, and the resulting benefit of the environment. There can be no serious argument that restrictions on human intervention in these wilderness areas will not result in immeasurable benefits from a conservationist standpoint.”

  2. Thanks for posting this, Andy.
    As a long time and very experienced Wilderness visitor I DO NOT NEED a NANNY STATE DECIDING WHAT IS SAFE AND WHAT ISN’T. My family has safely hiked through, explored and marveled at the mosaic of burned and unburned forests in the Three Sisters and Mount Jefferson areas. We had to make hasty exits from those areas – twice – when new fires started. In those cases we judged the situation to be unsafe so we hiked out.
    We’ve hiked through lots of snag forests and know that we shouldn’t stop for lunch in a patch of dead trees. And we always check for standing dead, leaners or trees with obvious decay when choosing where to pitch our tent.
    In my experience, the burn areas in the Three Sisters DO NOT pose significant risks to travelers; in the past 20 years I’ve been through at least 4 burn areas there. The case may be different in the steep drainages burned in the Eagle Creek Fire in the Columbia River Gorge; there may be places on steep slopes where the trail tread is largely gone due to combo of burn and rain-induced erosion. In that case it may be OK to close ONE TRAIL — but BLANKET, AREA WIDE CLOSURES ARE AN OVERREACH.
    I want the USFS to focus on resource management and leave the personal safety decisions to me and my fellow recreationists.

  3. As a person who learned wilderness skills when I was 14, and as someone who has worked in the woods their whole career, the increased “safety” concerns with post-fire areas are puzzling to me, especially because there are plenty of dead tree/hazard tree situations that are far worse in unburned areas in some places. To me, the post-fire public safety shutdowns create complacency about many hazards in unburned areas among agency employees and among many members of the public. Closing one trail or a smaller area makes sense, and closing areas because there will be resource damage due to high levels of use makes sense as well. It is important to educate people about all kinds of hazards when they are in the forest – not just about hazards in burned areas. I would guess that there have been far more fatalities/accidents with serious injuries outside of burned areas than there have been within burned areas. And if someone actually used some real data to do an unbiased analysis, I think that the agencies would find that the risk is far less than they think it is.

    • The Pacific Crest Trail from Lolo Pass to the Columbia River is still closed, long after the Eagle Creek Fire was considered out (a foot or more of rain took are of it). Why hasn’t it reopened? The Mt. Hood NF hasn’t posted anything on the trails section on its website — only the Eagle Fire closure mentions it. I called the Zigzag Ranger District, and they conformed that the PCT is still closed, because of tree hazards and hot spots that they are monitoring. The person I spoke with said it will be “quite a process” to open it, but offered no time frame. Also said the PCT Association would have more info. Its website says that section of the trail is closed “due to active wildfires.” Several other PCT closures in OR are listed:

      https://www.pcta.org/discover-the-trail/trail-conditions-and-closures/sections/oregon/

        • Thanks for the fact check, Nick. BTW, as you know, we recently had 10 or so days of strong, dry east winds. Any word of hotspots escaping? I doubt it. By my rain bucket measurements, we’ve had 20+ inches of rain since October — I live just over the ridge from the fire.

          SW

          • No, I have not heard of any significant flare-ups. I made that comment to caution against the implication that a major fire is “considered out” as soon it receives one significant rainfall. That line of thinking is exactly why extended post-fire closures are often necessary.

            • Really, Nick? I moved to Oregon in 1959. In my time here, I’ve never heard of anyone injured by a winter “flare-up” in a wilderness area. Oregon averages over 100 deaths annually from drunk driving. Except for the risk of getting arrested and jailed by the Forest Service nanny state, wilderness is one of the safest places to be during the holidays!

  4. I too thought Wilderness is wild. That is why bridges are not put in at every stream crossing. As a wilderness user before working for the USFS, we had to ford a creek that was over knee deep. We took off our socks and waded the river. It is a memory form 1958. The FS flew in a bridge in the winter. Those crossing the bridge do not get the experience I had.

    I am not saying it should be a life alternating experience,, i.e., you wither make it or die, but a challenge. As a Ranger I allowed trees to be felled to make a log crossing with abutments and rocks moved in the stream for horse and foot crorssing but keep most bridges out of wilderness. Who know that the Rangers who followed me may have caved and put bridges in.

    A warning at the trailhead would be appropriate so people know snags are a hazard in newly burned area, etc., The rule is overkill in my estimation but there may be more to it.

  5. Good comments y’all. Yes, I looked at the Eagle Creek info and it seems unnecessarily cautious UNLESS the agency has walked that section of the PCT and found there are really serious hazards. Gheez – some of the trails in the gorge have really sheer drop offs but they’ve generally been open to hiking.

    • There have been a number of fatalities in the Columbia Gorge the last few years on non-wilderness trails with steep drop-offs. Yet, there are no trail closures for “public safety” for those trails. And the accidents had nothing to do with trail maintenance or lack thereof. The ones I remember had people losing their balance or lunging after children who were close to the edge of a dropoff. And several people have died in the woods lately – including a hunter in SW Washington who probably had hypothermia – yet we don’t close the woods for “public safety”. And then there are the many roads that get snowed in and that people routinely die on when they get snowed in too in Oregon and elsewhere – yet those roads are never closed for “public safety” either. Again – far more people have died in the forest in areas that have not burned and for reasons other than trees falling on them…yet the only places that we close are burned areas…and areas with trails – what’s up with that?

  6. I don’t know if it is relevant, but most health insurance companies will require you to cooperate/participate in their lawsuit against the USFS if, for example, you break your leg scrambling over downed timber while hiking on a designated and maintained trail. I suppose this closure order might be the result of a decision made by a over zealous solicitor in a office far, far away.

  7. Brian, that’s a very good point. But if that were the case, I don’t think the solicitor would necessarily be “over”zealous, they always advise agencies to do the safest thing legally, as we have seen in many cases with regard to other issues. We actually don’t know how much of this is based on legal caution and avoidance of lawsuits.

  8. The Waldo Canyon area just reopened after the 2012 fire and here is what the Pike Forest (PSICC) says
    https://www.csindy.com/TheWire/archives/2017/10/04/waldo-canyon-reopens

    “While the public will be allowed to access Waldo, the Waldo Canyon Trail (NFST 640) and Waldo Canyon Trailhead on Highway 24 will remained closed for public safety. There are no other legally designated Forest Service system trails in Waldo Canyon. Public accessing the area should use caution and be prepared for cross-country hiking over rough terrain and debris from the 2012 wildfire. The potential for flash flooding still exists. In addition, there are many dead hazard trees that can fall down. Anyone entering the area should be aware of these hazards and take any necessary safety precautions by using extreme caution.”
    Note the work that still awaits (not a Wilderness).

    “This opening is the beginning of the next chapter in Waldo recovery. “We are proud of the massive recovery effort the Forest Service, partners, and the community has poured into Waldo and happy that we are finally able to open the area as hunting season gets going,” said Oscar Martinez, District Ranger. The Forest Service is working with partners on a sustainable path forward for recreation in the area. Redesigning and implementing a safe sustainable recreation plan in the Waldo burn scar is complex and will take time.”

  9. Ignoring existing policy, my thoughts seem to be pretty much the same as most of the previous comments..

    1) If it is safe, it sure isn’t wilderness.
    2) if it is safe, it isn’t even a forest.
    3) I say – let the user take the risk and sign a note absolving Uncle Sam of all responsibility since the user is already taking numerous risks even when not around dead trees. Signs are meaningless since they can be torn down. The only meaningful precaution other than a signed user agreement is a 12′ high razor wire fence.
    4) If you don’t know what you are doing, you don’t need to be in the woods.

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