Travel Management

Case on forest plan wilderness recommendations

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Ten Lakes Snowmobile Club v. U. S. Forest Service

(Mentioned by Brian Hawthorne here, with links to an article and the opinion.)

This case was about the decision in the 2015 revised Kootenai and Idaho Panhandle National Forest plans to recommend (to Congress) areas for wilderness and to manage them to protect their wilderness values.  The Montana district court upheld the forests’ wilderness evaluation methodology, and their decision that effects on several wildlife species warranted prohibition of motorized and mechanized activities in the recommended wilderness areas (RWAs).  It also reiterated precedents that the Forest Service may choose to manage non-wilderness areas similar to designated wilderness.  It found that the EISs included proper no-action alternatives, and that the Kootenai properly coordinated with the Glen Lake Irrigation District (and did not have to be consistent with their “Natural Resource Plan.”)

Existing policy is that areas recommended for wilderness designation will be managed to prohibit activities that would “reduce the wilderness potential” or “compromise the wilderness values” of the area.  At issue is the role that Forest Service Region 1 policy played in the decision to exclude over-snow vehicles and mechanized use from these areas; specifically whether it improperly influenced the required site-specific analysis for each area.  Plaintiffs argued that the policy “created an inflexible prohibition of all motorized and mechanized travel in the RWAs.”  The court found this argument to be “unfounded and purely speculative,” and, “The record demonstrates that the FEIS in the Kootenai and Panhandle Forests considered site-specific impacts of motorized and mechanized vehicles.”

Plaintiffs also challenged decisions to manage areas as recommended wild and scenic rivers.  The court found that the Forest Service violated NEPA by including two creeks that had not been considered in any alternatives in the planning process prior to the final Record of Decision, which was after the public objection process.  It remanded the Kootenai plan for the narrowly defined purpose of providing an objection period for that decision for these areas.  It did not require a supplemental EIS because the area involved was 0.1% of the national forest which constituted “a minor variation that was qualitatively within the spectrum of alternatives that were discussed in the FEIS.”  It did agree with the Forest Service that the creeks meet the requirements of the Wild and Scenic Rivers Act to be considered eligible.

Another September case

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Wild Wilderness v. Allen seems to have not shown up on the Forest Service litigation reports, but here is a newspaper version.  On Sept. 8, the Ninth Circuit found that the decision to build the Kapka Sno-Park, a parking lot for snowmobile users on the Deschutes National Forest, was consistent with the forest plan and did not require an EIS.  I found a couple of points interesting.

One was the court’s treatment of forest plan “standards and guidelines” that were prefaced with language indicating discretion.  The court said, “But nothing in this provision mandates closure of any area to motorized use. It merely outlines steps that “will generally be taken” in the event of user conflicts. The Forest Plan outlines “an aspiration, not an obligation” and therefore “there is no law for us to apply in second-guessing the agency.””  It similarly dismissed language from the Recreation Opportunity Spectrum as “nonbinding guidance.” Note to the public participating in forest planning – if the plan doesn’t say “must” or “shall” the Forest Service won’t have to.  (Recreation, unlike wildlife, doesn’t have any substantive requirements that a plan must meet using mandatory language.)

On the NEPA side, the court held that the forest didn’t have to explain why it changed from an EIS to an EA, as long as it justified the EA.  It rejected the comparison “to cases in which agencies failed to provide reasoned explanations for changes in their position on matters of policy or factual findings.”  The court stated, “The Forest Service here, however, never changed its mind on any factual or policy matter but only on how it planned to comply with its own procedural requirements. There was no agency decision to reverse, as a draft EIS is not an agency decision at all.”  An EIS is not a decision, but this holding only makes sense to me if an EIS also does not represent a finding that there are significant impacts, which is would be a “factual finding.”  In fact, an EIS may be prepared by an agency even if effects are not significant, so changing from an EIS to an EA doesn’t necessarily trigger an additional burden of explanation for the agency.

R.I.P. Shovel Brigade?

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The Jarbridge Road in Nevada is back under the control of the Forest Service.

A federal judge in Reno ruled against rural Elko County this week — again — and closed the 18-year-old case stemming from a sometimes volatile feud over the road in remote wilderness near the Idaho line.

It began in 1999 when the Clinton administration filed suit against then-Nevada Assemblyman John Carpenter, one of the leaders of a “Shovel Brigade.” They had vowed to rebuild a washed out road near threatened fish habitat along the Jarbidge River in defiance of the government. Carpenter and one of his lawyers, Grant Gerber, have since died.

The county claimed it owned the road under a Civil War-era law that granted state and local governments’ rights of way to existing roads in places where national forests and parks later were established.

The so-called “R.S. 2477 roads” — named after the statute number — became a lightning rod for property rights advocates and anti-federal forces in the 1990s, with similar court battles in Utah, Idaho, Colorado, Oregon and New Mexico.

Like other cases, the federal government denied Elko County’s claim it owned the road before the Humboldt National Forest was established in 1909.

But the Nevada case is unique because, despite the government’s position, the Forest Service signed an agreement with the county in 2001 that said it wouldn’t challenge the county’s alleged right of way.

It looks like the court held that 1) the county did not prove that it owned the road prior to the establishment of the national forest, and 2) the Forest Service could not violate the law by giving away federal land rights though a settlement agreement.  (Of course the county could again appeal this ruling to the 9th Circuit.)

New lawsuit – winter motorized recreation in Idaho

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A sneak preview of the September litigation monthly:

A lawsuit filed by the Winter Wildlands Alliance and WildEarth Guardians contends that the Bridger-Teton, Boise and Payette national forests improperly used a “grandfather provision” to avoid preparing a new winter travel plan.

The U.S. Forest Service historically allowed its forests to forgo winter travel plans, but in 2015 changed direction and required them to delineate where snowmobiles can and cannot go. A provision allows forests to skip the planning process if winter routes were designated through a public process, and they haven’t been changed since.

Groups suing contend the Bridger-Teton, Boise and Payette ignored the requirement to plan.

Apparently because they have “been changed since.”

“Hunting group sues to stop Ochoco off-road trails”

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This is about the Ochoco Summit Trail System Project:

The project proposes to designate a trail system in the Ochocos specifically for off-highway vehicles. The trail would be open seasonally and it would be built using mostly existing roads and trails tied together by some currently open roads. It would be a system where motorcycles, quads, side-by- sides, and Jeeps could ride trails designed specifically for enjoyment and recreation. The trail  system would be accessed at designated staging areas, parking areas, or trailheads.

The current Final Supplemental EIS has five alternatives for the trail system that range in distance from 124 miles (Alt 2) to 158 miles (Alt 4), and the No Action alternative (Alt 1).

The idea for this system originated in 2009 when the Ochoco National Forest conducted travel management planning. The 2005 Travel Management Rule required the forest to designate a system of roads, trails, and areas for motorized use and to prohibit cross-country travel. Under the motorized travel system adopted in 2011, recreational OHV users lost a lot of opportunity. More than 80 percent of the forest was made off-limits to OHV use and most of the roads still open to OHV driving lack connectivity and must be shared with cars and trucks. Through an engineering analysis, some system roads were also deemed unsafe for mixing non-street legal OHVs with
passenger vehicles and commercial traffic.

The lawsuit:

The Oregon Hunters Association, the state’s largest, pro-hunting organization made up of more than 10,000 members, filed the lawsuit in the Pendleton Division of the United States District Court on Aug. 31, arguing the decision to approve the trails is not supported by scientific wildlife research the Forest Service completed on the Starkey Experimental Forest in Northeast Oregon.

The hunters association argues the addition of trails and roads would increase use, which Forest Service scientists have shown adversely affects elk habitat, according to a news release from the hunters association Research on the Starkey Experimental Forest found the animals avoid areas within 1.1 miles of roads or motorized trails.

This idea of designating a motorized trail “system” as a distinct “project” seems kind of unusual to me (it’s not just a “travel plan”).  The conflicts with wildlife are not, however.  There’s also a claimed violation of NFMA.  This lawsuit (“environmental extremists” abusing the legal system?) might get at some interesting questions about motorized recreation use on public lands.

Forest plans and “valid existing rights”

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This is about forest plan litigation – sort of.  The Michigan Wilderness Act included a provision protecting “valid existing rights.”  A series of forest plan amendments by the Ottawa National Forest imposed restrictions on motor boat use on a lake that was mostly within a wilderness area but partly touching private land.  A 2007 Forest Order, subjected violators of Amendment No. 5 to criminal liability.   An earlier case concluded that Michigan riparian water rights allowed for “reasonable use” of the lake’s surface water, and that, “the motorboat restrictions interfered with Thrall’s ‘valid existing right’ to use gas motor boats on Crooked Lake’ and thus fell outside the Forest Service’s regulatory authority.”

The question in the current case was whether purchasers of lakefront property in 2010 also had “valid existing rights” to unrestricted motorboat use.  After sorting out the timing questions in favor of the private owners in this case, the Sixth Circuit court revisited the nature of riparian rights, holding that the Forest Service could only prohibit unreasonable uses:

“But the Forest Service has not shown that it would be unreasonable under Michigan law to travel on 95% of the lake above a low-wake-zone speed. If you think otherwise, try being at one end of a three-mile lake with a five-mile-an-hour speed limit as an unexpected storm sets in.”

(Evidently what’s reasonable in Michigan is different from what’s reasonable in wilderness.)

 

Forest Service wins 2

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The Forest Service turned back a challenge on the Manti-La Sal National Forest to its management of a research natural area in Utah Native Plant Society v. U. S. Forest Service. The state of Utah had introduced mountain goats outside of the national forest boundary, over the objections of the Forest Service that they could adversely affect the plants being protected by the RNA. Plaintiffs challenged the Forest Service for allowing the reintroduction, and failing to remove the goats after they were introduced. The court dismissed plaintiffs’ claims because there was no requirement for a special use permit for actions beyond national forest boundaries or for “migrating wildlife,” and the Forest had not yet determined the effects of the introduction nor decided to take any action on the mountain goats that could be challenged. The court did indicate that this was not the end of the story:

“Indeed, it would be nonsensical if an administrative agency could kick the proverbial can down the road by merely stating that more research must be conducted before acting. Eventually, after further research, the Forest Service will need to take a position.”

In Granat v. USDA a federal district court in California upheld the travel management plan for the Plumas National Forest against a NEPA challenge from counties and motorized user groups. It refused to require the Forest to conduct field surveys to support its environmental analysis because plaintiffs did not explain how that would have changed the outcome of the analysis conducted by the Forest. The court found that the Forest had considered an adequate range of alternatives, that the prohibition of non-highway legal vehicles on maintenance level three roads was reasonable, and that the Forest properly coordinated with local governments. The EIS also adequately considered economic and recreation impacts and the Forest adequately responded to public comments. A cumulative effects analysis beyond the Forest boundaries was not necessary. Changes between the draft and final EIS were not “substantial” and did not require a supplemental EIS. The court also upheld compliance with requirements of the Travel Management Rule.

Do elk need trees? Maybe.

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This is an update to a September 12 post “Do elk need trees?”  The Forest punted the issue to its forest plan revision: http://helenair.com/news/natural-resources/forest-service-withdraws-controversial-big-game-standard/article_e5e22d8b-41f3-535f-94e6-58e098c86958.html

The first draft of the proposed Helena-Lewis and Clark revised forest plan punts elk security to project-level decision making. Here’s the draft guideline: “In order to influence elk distribution on NFS lands, management actions should not reduce the amount of elk security available during the archery and rifle hunting seasons over the long-term (generally ten or more years). Short-term reductions in elk security may occur when needed to achieve other resource management objectives. Elk security should be defined and applied at a scale that is informed by interagency recommendations if available, knowledge of the specific area, and the best available scientific information.”

The Forest Service is back to writing 1970s-era “plans” that left everything up to the local ranger. I foresee lots of litigation about the validity of these individual security interpretations on each project (instead of just determining if the project is consistent with the forest plan).

Do elk need trees?

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For many years, it has been pretty much common knowledge, supported by science, that as the amount of hunting season open roads increases, there is more need for cover for elk to hide.  The Helena National forest plan (and others) have incorporated this relationship into standards for elk security.  (Full disclosure – I had something to do with this on the Helena 30 years ago.)   When the Helena National Forest developed its Divide travel plan, it found that it couldn’t meet its requirements for elk habitat because there were too many roads and not enough trees to provide security (trees in the area have been killed in large numbers by mountain pine beetles in recent years).  So it amended its forest plan elk standard to eliminate the role of tree cover in determining elk security (distance from roads replaces road density as a factor).

The rationale provided in the Record of Decision emphasizes the fact that elk have been doing well despite the fact that the existing forest plan standards have not been met in many places.

I have taken into account the fact that Montana Fish,Wildlife and Parks data indicate that elk populations in the Divide landscape are either at or near population objectives of the 2005 Montana Elk Plan and that elk management challenges are only partially related to access management according to that Plan. I have also taken into account the fact that, despite several miles of road closures, only one herd unit comes into compliance with standard 4a in the Travel Plan Decision. Given this, I have concluded that the existing standard 4a is not an accurate indicator of elk security and is insensitive to changing road densities. The methodology utilized for the new standard (based on the percentage of an elk herd unit occupied by elk security areas and/or intermittent refuge areas) indicates that overall elk security in the Divide landscape is adequate. This measure of security is sensitive to changes in open road configuration and will provide a way to determine where proposed management actions are effective or where management needs to improve to ensure adequate big game security. I believe the new standard will provide a more realistic means of guiding travel management and other future management activities in the Divide Travel Planning Area.

In essence, the Forest is using anecdotal evidence in place of long-established science (which the Forest now asserts is not relevant to this kind of forest).  Has the science just not caught up with reality, or is it possible that the high elk numbers are a result of unknown factors that, when they change, will render excessive road densities fatal to meeting elk harvest goals?  When the plan is revised under the 2012 planning rule (revision is ongoing), it will have to meet the requirement for using best available scientific information for its elk habitat management decisions.  (The amendment is using the 1982 planning process, but scientific integrity is still required.)

A court has been asked to weigh in on the amendment.

Interestingly, the lawsuit is by participants in a collaborative process.

Another classic settlement

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A follow up to an earlier post on ATV litigation on the Okanogan-Wenatchee National Forest.

“Under the settlement, the Forest Service agreed not to authorize public use to all-terrain vehicles without first completing an assessment of environmental effects. The agency also agreed to re-survey routes and remove any remaining signs authorizing ATV use.”

“The federal agency denied the groups’ allegations but agreed to pay their attorney’s fees as part of the settlement.”

This telegraphs something important that the Forest Service gets out of settlements. They don’t get a judicial precedent, and that gives them more flexibility to use the same disputed approach in future actions (and better protects other past actions that used this approach, at least for awhile).