One of the more interesting patterns I’ve observed is that we develop regs to do certain things.. but checking on whether the reg actually does those things, whether the reg works well or works at all, are not part of the design. So we go through periods of disgruntlement (sometimes 30 years or more) and if it adds up to enough, on some unknown scale, we throw the proverbial baby out with the bathwater. Instead of continual improvement, we have slow degeneration and maybe starting over from scratch.
Here’s what the 2005 Summary says in part the Travel Management rule was intended to do.
The clear identification of roads, trails, and areas for motor vehicle use on each National Forest will enhance management of National Forest System lands; sustain natural resource values through more effective management of motor vehicle use; enhance opportunities for motorized recreation experiences on National Forest System lands; address needs for access to National Forest System lands; and preserve areas of opportunity on each National Forest for nonmotorized travel and experiences.
The Travel Management Rule Highlights According to an old Forest Service link.
- The rule requires each national forest or ranger district to designate those roads, trails, and areas open to motor vehicles.
- Designation will include class of vehicle and, if appropriate, time of year for motor vehicle use. A given route, for example, could be designated for use by motorcycles, ATVs, or street-legal vehicles.
- Once designation is complete, the rule will prohibit motor vehicle use off the designated system or inconsistent with the designations.
- Designation decisions will be made locally, with public input and in coordination with state, local, and tribal governments.
- Designations will be shown on a motor vehicle use map. Use inconsistent with the designations will be prohibited
It’s hard to tell from this description exactly what the problems are. I do remember certain Districts getting litigated no matter which decision they made.
Here’s an interesting E&E News story from today.
The Forest Service plans to nullify regulations governing the use of off-highway vehicles on national forests, potentially opening trails to greater use of ATVs after next year. The agency listed the proposed repeal on its latest regulatory update, calling it a response to legal challenges and a part of the Trump administration’s broader government streamlining efforts.
In addition, the Forest Service said, voiding the 20-year-old regulations would support more decision-making at the local level, although the agency didn’t say what might replace the rules if they’re jettisoned.
I’d like to know more about how that would work. Maybe decision makers on forests would have more latitude?
A notice of proposed rulemaking could come by next August, according to the regulatory update. An Agriculture Department spokesperson said existing travel management plans on individual forests would remain, where established.
I wonder how many forests don’t already have them, and how many are in litigation.
“The concept is to reduce duplicative and onerous planning requirements needed to update or establish travel management plans and maps,” USDA said. “It has not yet been determined if and how alternative regulations would be amended.”
Repealing the regulations — called the travel management rule, implemented in 2005 — could satisfy organizations calling for more access to trails and old logging roads for all-terrain vehicles, four-wheelers, snowmobiles and similar recreational vehicles. But motorized ATVs have environmental impacts that spurred the Forest Service to write the regulations in the first place.
It seems to me that there are actually three issues. 1. FS can’t afford to keep all trails open and can’t find sources of funding or volunteers to helpl. 2. People (horses, bikers, hikers) tend not to like sharing trails with ATV folks, 3. Some ATVers do illegal things, and they are more problematic and obvious than when other users do illegal things, 4. Some people have an anti-ATV bias (aka the pyramid of pristinity).
Note that this quote (and travel management was intended, if I recall correctly) to designate trails and then be able to keep people from going everywhere. But even then game retrieval was an issue, as in how far off the road can you go with a vehicle to retrieve game?
The management rule calls for forest supervisors to designate which roads or trails on individual national forests are open to off-highway vehicles. The designations are shown on motor vehicle use maps; areas not designated are considered off-limits to the recreational vehicles.
Paper MVUMs are not always easy to use (even for non-motorized users who want to check things) and I don’t know whether there are better versions or apps or whatever.
Here is one point of view:
Individual forest transportation plans resulting from the rule have sparked litigation, including a 2022 lawsuit by recreational vehicle riders and Citizens for Balanced Use, contending that new restrictions at the Helena National Forest in Montana were too broad. In that case, the organizations said, many areas where motorized vehicles had been allowed for decades were made off-limits. The groups said the Forest Service overlooked the National Environmental Policy Act’s requirement to assess economic and social, as well as environmental, impacts from expelling motorized vehicles. The rule’s critics say it’s had the opposite of the intended effect in parts of Western states, concentrating environmental impacts in the smaller number of places where vehicles were allowed access, while escalating conflicts between the Forest Service and the public.
“The rule has failed its stated purpose and produced widespread unintended consequences,” said Don George, president of Forest Access for All, based in Baker City, Oregon. The Forest Service already has ample authority through the National Environmental Policy Act, the National Forest Management Act and local forest orders to determine which areas should have vehicle access, said George, whose organization opposes any substitute regulations that would restrict access.
I thought that the TM rule was a national structure for making those decisions, and regardless of the rule FS folks could make any decisions they want. Hopefully folks on TSW can explain this better.
Here’s another point of view:
Groups promoting greater access to public lands have been fighting the travel management rule for years. But some organizations, including national groups representing the motorcycle and off-highway vehicle industries, say the regulations should be improved — not repealed.
Three organizations — the Motorcycle Industry Council, the Specialty Vehicle Institute of America and the Recreational Off-Highway Vehicle Association — urged the Forest Service in October not to abandon the travel management rule. Instead, they said, officials should leave the basic regulation in place and work on its flaws.
Despite its shortcomings — including shutting access to areas that long had it — they said, the rule has documented many places as open to off-highway vehicles and led to the creation of the first motor vehicle use maps to guide forest visitors.
Repealing the rule, they warned, could roll back “hard-fought gains” that the regulation made possible.
“The Associations believe that travel planning is a critical tool to promote high-quality sustainable recreation for all public land users, mitigate resource damage, and conserve our shared public lands, and ensure benefits for current and future generations,” they said.
And from Rasmussen of Back Country Horsemen:
“We often overlook the fact that, decades ago, there was constant struggle and acrimony among forest visitors when there were few restrictions and few of us had trails designated specifically for our use,” Rasmussen said in an email Monday.
He added, “Some bad actors caused a lot of damage. We don’t want to return to the days when access for motorized trail use was pitted against those who seek a relatively quiet and peaceful forest experience.”
This seems to be a bit of #s 2 and 3. It seems to me that we can agree that motorized vehicles should not be allowed on all trails, nor off-trail.There are fuzzy areas that we should know well by now (e.g. game retrieval) and maybe have solutions that work?
Folks need maps that work well and we need law enforcement. So what are the differences between rule, no rule and improved rule?
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2005 was twenty years ago. Since then we have apps such that mapping should be a breeze. And maps and locations are now available on your phone. If cows can use virtual fencing, why not motorized vehicles? Any vehicle to be used on NFs or BLM could be required to register (enough to pay for a GPS transmitter). If a vehicle is off the approved map, it would issue annoying beeping noises and finally cause the vehicle to lock up, or send a message to law enforcement. It seems to me that in this day and age we can do better than restricting the access of good guys based on the behavior of bad guys. Because having the good guys in the woods is a generally good thing.
Speaking of bad guys, I wish this reporter had asked the Angeles LEOs for details on where these gang activities occurred.
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I am not aware that the Roads Rule generated much litigation in the areas I am familiar with. Maybe it did elsewhere. Out of all the adopted transportation planning decisions, anybody know what fraction got litigated?
My personal anecdote about the Roads Rule was being called into the District Ranger’s office to hear their pitch about their new transportation plan and which roads would be left open vs closed.
In a forest with lots of salmon streams, lots of steep slopes on slide-prone geology, and high road density from a history of intensive management, I had high hopes that the transportation plan would significantly rescale the road system to protect public values. Instead it left the road system virtually unchanged with all roads being functionally retained, but some roads being “put in storage” for future use.
I left the meeting very disappointed and the feeling that the roads rule was unlikely to produce meaningful changes at the scale envisioned by its authors.
I don’t think designated routes and MVUMs are going anywhere, and I doubt the Travel Management Rule will just be straight up repealed, but it will need to be replaced with something that is hopefully simpler and friendlier to motorized recreation.
As someone actively litigating a recent travel plan, it’s astounding how badly the existing TMR has been implemented and how bad the Forest Service is at following its mandates, to the point where I doubt any two forests have ever even used the same procedures in creating a travel plan. Every forest does it completely differently, and even things like the Travel Analysis Process that is supposed to be standardized isn’t, with different forests using widely different criteria and differing definitions of the same criteria (for example, some defining recreational use benefit to include the recreational experience of driving the road itself, while others only consider the destination at the end of the road). A simpler, more standardized process for travel management with clear criteria to consider could benefit everyone.
One thing that most people don’t realize is there are really two different Travel Management Rules rolled into one: the Subpart B route designation process that most people think of as a travel management plan, and the Subpart A minimum road system (MRS) designation that no one seems to know what it’s for, how to do it, or how it is supposed to relate to Subpart B route designations.
Most forests haven’t even tried to designate a MRS, and those that have, have followed totally different procedures and or tried to awkwardly tack it onto Subpart B planning in ways that haven’t held up in court. The Pike San Isabel NF seems to have weirdly conflated designating an MRS with the pre-NEPA Travel Analysis Process, even though FS handbooks explicitly say its supposed to be done through NEPA, which is now a primary issue in our litigation. I would love to see the Subpart A minimum road system section dropped from the TMR entirely, as that section has done nothing but cause confusion and litigation since it was adopted and is redundant with the actual route designations in Subpart B planning.
As for Subpart B planning, the Forest Service’s regulations have the same glaring flaw the BLM’s do — which is that there is no real consideration of motorized recreation benefits required at all. It’s interesting. The preamble to TMR explicitly said, “Motor vehicles are a legitimate and appropriate way for people to enjoy their National Forests—in the right places, and with proper management.” This sentence was supposed to be a compromise that ensured motorized recreation would be evaluated as legitimate multiple use. Yet, in the actual route designation criteria for motorized routes, recreation is almost nowhere to be found:
———
(a) General criteria for designation of National Forest System roads, National Forest System trails, and areas on National Forest System lands. In designating National Forest System roads, National Forest System trails, and areas on National Forest System lands for motor vehicle use, the responsible official shall consider effects on National Forest System natural and cultural resources, public safety, provision of recreational opportunities, access needs, conflicts among uses of National Forest System lands, the need for maintenance and administration of roads, trails, and areas that would arise if the uses under consideration are designated; and the availability of resources for that maintenance and administration.
(b) Specific criteria for designation of trails and areas. In addition to the criteria in paragraph (a) of this section, in designating National Forest System trails and areas on National Forest System lands, the responsible official shall consider effects on the following, with the objective of minimizing:
(1) Damage to soil, watershed, vegetation, and other forest resources;
(2) Harassment of wildlife and significant disruption of wildlife habitats;
(3) Conflicts between motor vehicle use and existing or proposed recreational uses of National Forest System lands or neighboring Federal lands; and
(4) Conflicts among different classes of motor vehicle uses of National Forest System lands or neighboring Federal lands.
In addition, the responsible official shall consider:
(5) Compatibility of motor vehicle use with existing conditions in populated areas, taking into account sound, emissions, and other factors.
———
While “provision of recreational opportunities” is listed in the general criteria in paragraph a, the specific mandatory criteria in paragraph b are all negative impacts to be “minimized”. Those are the only ones courts have said must be evaluated for each specific route, and the only ones with a required objective. The general criteria (which is the only place positive benefits of roads are listed) must only be “considered”, and there is no mandate to maximize recreational opportunities to balance with minimizing impacts. The focus of travel planning thus becomes solely about minimizing impacts rather than providing recreational opportunities, which is at best an afterthought.
In practice, only the most general analysis of recreational opportunities forest-wide is included in travel planning documents, while every individual route gets a detailed report of its negative impacts. At most, there might be an arbitrary recreational use benefit score assigned to individual routes (defined inconsistently as mentioned above), which the public rarely has any input on, and which is rarely enough to outweigh high scores for negative impacts. This makes closure the default designation and makes it extremely difficult to justify keeping routes open.
While the TMR’s preamble paid lip service to treating motorized recreation as a legitimate multiple use, the actual rule clearly does not, but frames motorized recreation as a second-class use to be tolerated only when it can be affirmatively shown to have minimal negative impacts on anything else. And by allowing motorized recreation only where impacts on non-motorized recreation are minimized, it sets up a clear hierarchy where non-motorized recreation is prioritized and the desired experience of non-motorized users trumps that of motorized users.
I would like to see the TMR amended to actually treat motorized recreation as a legitimate multiple use, giving it equal weight to non-motorized recreation and requiring an individual evaluation of recreational benefits for every route. For any route with at least moderate recreational value, the burden of proof should be on the Forest Service to prove that closure is the only feasible way to mitigate serious specific existing impacts (not just location based risks of impacts like forests usually consider currently). Especially considering most national forests have already been through at least one round of travel planning under the 2005 TMR, the default expectation really should be that every motorized route currently open should remain open permanently unless there is some really strong reason to close it.
Doesn’t the purpose and need for a travel plan discuss why roads would be designated as open? That (not road closures) is the actual driver of the NEPA process of evaluating (and mitigating) environmental effects of what the agency is proposing.
This was the purpose and need statement for the Pike San Isabel NF travel planning process:
———
The purpose and need for this project is to comply with the TMR by designating
a system of roads, trails, and areas for motor vehicle use by class of use, vehicle
type, and time of year on the PSI (36 CFR 212.50). This complies with the
National Environmental Policy Act of 1969 (NEPA), TMR, and all other
applicable laws or regulations. The PSI also needs to analyze the effects on
resources, to minimize the impacts from the trails and areas designated as open
to motor vehicle use (36 CFR 212.55(b)). Another objective is to analyze the
environmental impacts of all routes proposed for motor vehicle use. The
designation of roads, trails, and areas as appropriate for motor vehicle use must
balance the need to protect natural and cultural resources with needs of the
broad range of recreationalists and other legitimate users of NFS lands.
——-
Basically they said the purpose and need was to comply with the Travel Management Rule. So not all that informative. Not really any discussion of why roads would be designated open except for one vague reference to the “needs of a broad range of recreationalists” (is that even a word?). I’m not sure if other forests have included more discussion in the purpose and need statement of why roads should be open or not.
In context, this travel planning process was done because of a lawsuit challenging the fact that the PSI had simply grandfathered their existing travel plan from the 80s/90s when they created the initial set of MVUMs required under the 2005 TMR, without going back and re-analyzing every road from scratch under the criteria in the TMR. Grandfathering existing route designations was supposed to be allowed by the TMR, but the plaintiffs wanted to set a precedent that the 2005 TMR required a complete de novo analysis of every road on the forest with no grandfathering of previous decisions. The Forest Service settled the case and basically agreed to do a complete de novo analysis as the plaintiffs wanted, but since the case never was decided by a judge there was no judicial precedent set. But that’s the background of why the purpose and need was basically just to do a full TMR analysis for the sake of doing that analysis.
Thanks, Patrick, I think I remember being on some phone calls about this settlement agreement … what year was the settlement?
The settlement was adopted in 2015. You can read it here: https://usfs-public.app.box.com/v/PinyonPublic/folder/158841848487
In March 2023 the district court found in favor of the Forest Service’s 2017 Helena-Lewis and Clark Travel Plan. It should be noted that the plaintiffs, including Citizens for Balanced Use waited 5 years (2022) to sue.
One reason the Forest Service issued the TMR was to deal with an issue that came up in the Ohio Forestry Supreme Court case, 523 U.S. 726 (1998).
https://supreme.justia.com/cases/federal/us/523/726/
There the Supremes held that facial challenges to land management plans (that is, challenges not based on any specific implementing project, like a timber sale) were generally barred. For most forest management activities, the plan did not represent the final agency decision; that decision occurred at the project level.
However, the court noted that some plan provisions did in fact represent the agency’s final decision, specifically citing travel management (opened/closed) designations. Indeed, the government conceded this point:
“ ‘If, for example, a plan incorporated a final decision to close a specific area to off-road vehicles, the plan itself could result in imminent concrete injury to a party with an interest in the use of off-road vehicles in that area.” Brief for Federal Appellees in No. 94–3407 (CA6), p. 20.”
523 U.S. at 738-39.
By moving travel managment decisoons out of the forest plan itself and into a separate process, the agency reduced the likelihood that plaintiffs could find a way to launch a succesful facial challenge against a forest plan. Simply repealing the rule would put the agency back in the same hole it successfully escaped back in 2005.
My work generally took me away from travel managment after the mid-2000s, so I haven’t followed the issue closely since then. But I wonder if, regardless of the process used, moving away from a pure open/closed dichotomy could help to resolve some of these often intense debates. Measures such as seasonal wildlife closures and alternate day restrictions would seem to be appropriate in at least some instances (and, to be fair, perhaps are already widespread).
That said, some of the most difficult challenges will come up in situations like the ones noted above in this thread, where traditional trail use will simply accelerate the day when the trail slides down into the creek. And this is a problem that rearranging the regulatory deck chairs probably won’t solve.
This is something I was wondering about the six year timeframe for lawsuits.. are there conditions in which a given decision isn’t reviewable until a certain kind of other decision takes place?
Maybe you are asking a different question, but the general rule is that most forest plan decisions are not reviewable until a project is implemented that implicates those decisions. Theoretically that might mean waiting six years to implement something would bar any judicial review. A recent Supreme Court decision would fix that problem (last case discussed here: https://forestpolicypub.com/2024/07/09/federal-lands-litigation-update-through-july-9-2024/)