Travel Management

Settlement: opening roads to motorized use requires NEPA (take 2)

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It’s the Pike-San Isabel this time.  The issue appears to be “unauthorized and unanalyzed” routes.  It’s not clear whether those are two different things, but I think the point is that when a Motor Vehicle Use Map allows motorized use on user-created (“unauthorized?”) roads, the map becomes an authorization that triggers NEPA, ESA, NFMA consistency and travel plan “minimization” requirements.  The MVUM is not just displaying an open road system that was authorized in a previous travel planning and NEPA process (as was envisioned by the Travel Management Rule).

Thanks to WildEarth Guardians, we can look at the settlement agreement.  In it the Forest Service agrees to conduct travel planning using the proper procedures (I’ll bet that was a hard thing for them to accept …), agrees to some specific aspects of the process, and will undertake some interim protection measures in specified areas.  That’s a pretty standard formula, I think – do/re-do the process, and meanwhile don’t take some actions (in this case that means interim closing and “unopening” some roads).

What I need someone to explain to me is this.  Some motorized user groups intervened as defendants, but their signature is not on the settlement agreement.  I thought intervention allowed the parties to contest a settlement in some way.  Can we assume that they didn’t in this case?

Some better things coming from the Blues (Mtns.)

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Since I criticized the FS there in a couple of previous posts, here’s a couple of things I think they’ve done right.

It’s important that the public understand the relationship between forest planning and travel management planning, and this explanation from the Wallowa-Whitman is reasonably clear.  I think it should work about as well as it can if the Subpart A (roads analysis) precedes forest plan revision, and Subpart B (designation of roads open to motorized vehicles) follows it.

A little further back, I faulted the FS for not being honest about the legality of the local ordinance that sought to regulate the federal government.  That came up again at this Malheur meeting, and the FS set the record straight: “Our attorneys do not believe the Grant County ordinance is legal,” Beverlin said.

Beaverhead-Deerlodge Forest Plan NEPA not site-specific enough

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The Ninth Circuit Court of Appeals reversed the decision in the Beaverhead-Deerlodge (B-D) National Forest’s revised forest plan to designate areas for use by winter motorized vehicles. It found that the forest plan EIS failed to provide analysis that was site-specific enough to make an informed decision, as required by NEPA, and that the planning process did not comply with the “minimization” requirements of Executive Order 11644 for off-road vehicles, including evaluation of specific areas open to motorized vehicles.

This was a rare loss at the forest plan level on a NEPA issue.  While courts often accept more general NEPA analysis for programmatic decisions, this court recognized that the essence of forest plans is land allocation decisions.  Here it was important to know where winter range was in order to consider how the plan affected it or to propose alternatives for it.  The court stated that, “Without data on the location of the big game winter range, the public was severely limited in its ability to participate in the decision-making process.”  This principle should be applicable to other wildlife issues in plan revisions.

The holding on motorized use may also be precedent-setting.  It found that the plan ‘designated’ ‘areas open to snowmobile use.’  That made it subject to the executive order and to the Travel Management Rule (TMR) the FS adopted to implement the executive order.  The court stated, “What is required is that the Forest Service document how it evaluated and applied the data on an area by-area basis with the objective of minimizing impacts as specified in the TMR.”  It held that the Forest Service had instead deferred that level of analysis to subsequent travel planning.  The B-D plan had more site-specific direction for motorized use than many plans would have, but this holding could arguably apply to any forest plan components that identify areas in which motorized use would be allowed (especially where it is already occurring without prior compliance with the TMR).  This opinion blurs the distinction between forest planning and travel planning that the Forest Service has tried to maintain.

Clearwater travel plan remanded (again)

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Environmental plaintiffs successfully overturned the Clearwater National Forest travel plan in district court (newspaper coverage here). There are some implications for forest planning.

The court found the travel plan to be inconsistent with the forest plan’s requirement for elk habitat effectiveness (EHE) because it used the same methodology to evaluate EHE that was used for the forest plan. The methodology currently used (that the Forest Service helped develop) had added trails with motorized use to its road density calculations. The court considered this to be the best available science, which must be used in determining consistency with the forest plan, even though that creates (as the Forest Service put it) a ‘moving target’ for NFMA consistency. That’s an interesting argument for the Forest Service to make because the trend is for forest plans to defer more determinations to the project level, instead of having more specific direction in a forest plan.

The court also explained what is needed to demonstrate that an action ‘minimizes’ some outcome. (This case was specifically about ‘minimization’ criteria in an Executive Order related to motorized use, but the term is commonly found in forest plans.) Project documentation must explain exactly how a project was designed to meet the minimization criteria. General discussion of the criteria was not sufficient in this case.

The court upheld the NEPA analysis for the travel plan. However, it may have given the Forest Service a break by basing that decision on the fact that the decision was for an ‘entire forest’ and that it was ‘programmatic.’ The idea that NEPA analysis can be less demanding for broad-scale or programmatic decisions stems from the existence of another NEPA decision prior to actual impacts. While that is true for decisions to close roads (closure orders), it is not true for decisions to open roads.

(Since the Clearwater previously settled with motorized users in a case before a different Idaho judge, who kept the travel plan in effect, I’m not sure where this remand leaves travel planning on the Clearwater – especially in the context of ongoing revision of the Nez Perce-Clearwater forest plan.)

How the sue and settle process really works

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This 6-page opinion includes a discussion of how courts decide whether to approve a consent decree.

The case also demonstrates the ability of intervenors to influence the outcome.  In this case environmental groups intervened in a lawsuit by motorized users over a travel plan decision.  Because of the intervenors, the court refused to approve the part of the consent decree that would have vacated that travel plan and allowed motorized use to continue while the Forest Service reconsidered the travel plan.  The intervenors kept the plaintiffs from getting what they really wanted.  (But the plaintiffs or the Forest Service could now reject the consent decree and continue the lawsuit.)

The court poses a hypothetical at the end:  “This analysis would change, however, if upon reconsideration the Forest Service finds flaws in the 2011 Travel Plan requiring changes. At that point, a strong argument could be made that the Plan cannot remain intact and should be vacated, reinstating the 1987 Forest Plan management scheme.”  The problem with this result would be that this travel plan is necessary to accomplish the 1987 forest plan direction to protect wilderness character, and reverting to the no-action alternative would be inconsistent with the forest plan.  That creates an equally strong argument the other way (in my opinion).

Final policy for managing over-snow vehicle use

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Let winter travel planning begin.  Not something the Forest Service wanted to do, but the result of a court decision that found the Forest Service incorrectly exempted snowmobiles from the travel planning regulations.  Here is the new regulation and a news article.

Over-snow vehicle use on National Forest System roads, on National Forest System trails, and in areas on National Forest System lands shall be designated by the Responsible Official …

After National Forest System roads, National Forest System trails, and areas on National Forest System lands have been designated for over-snow vehicle use pursuant to 36 CFR 212.81 on an administrative unit or a Ranger District of the National Forest System, and these designations have been identified on an over-snow vehicle use map, it is prohibited to possess or operate an over-snow vehicle on National Forest System lands in that administrative unit or Ranger District other than in accordance with those designations…

This will require analysis of effects of allowing over-snow use in places where that hasn’t been through a NEPA or ESA process.

And let the collaboration begin:

Chad Sluder, president of the Sawtooth Snowmobile Club based in the central Idaho town of Bellevue, said his club of 75 members would take an active part in that process.  “We don’t want to lose any more ground, and if it comes to that we will fight it to the end,” Sluder said. “It’s the ongoing battle between the skiers and snowmobilers. They don’t want us there and we have every right to be there.”

Off course, even Wilderness boundaries don’t seem to make a difference (see article).

U.S. Forest Service law enforcement officers caught nine snowmobilers illegally riding in two separate wilderness areas recently.

 

Settlement agreements in litigation

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Here is a textbook example, from the Stanislaus National Forest travel planning process.

  1. The Forest Service makes a decision
  2. Plaintiffs sue
  3. Intervention granted to supporters of the decision
  4. Court finds Forest Service violated a procedural analysis requirement
  5. Plaintiffs, intervenors and Forest Service agree on an interim solution while the process is redone

It looks like win/win/win/win:

  • Plaintiffs: “Now we have 40 miles of the worst routes officially closed.”
  • Intervenors: “At the end of the day, we need to be partners in effective forward-looking management and allowing this agreement to be approved as opposed to tilting at windmills.”
  • Forest Service: “Diverse riding and driving opportunities for motorized recreation and dispersed camping still abound on the forest with over 230 miles of OHV trails available.”
  • General public:  Gets another chance to participate in the process

(Of course the goal in most litigation is to settle a case before a judge has to decide it.)

NEPA abuse in travel planning

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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).

Collaboration Example: Black Hills Travel Management with FACA Committee

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If, as stated by many, collaboration is a tool of “industry”, what industry are we talking about here?
Here’s an example of how the recommendations and agency action interrelate on the draft Travel Management Plan.

Proposed Action
Early development of the proposed action involved extensive consultation with many individuals and groups. Some of this work was conducted by the National Forest Advisory Board. Other efforts were conducted by the Forest Service. The following section summarizes these efforts.
National Forest Advisory Board Efforts
The Forest conducted preliminary public involvement from April 2003 to November 2007 through the work of the Black Hills National Forest Advisory Board (NFAB). This board was chartered under the Federal Advisory Committee Act (FACA) in 2003. In March 2005, the Board established the Travel Management Subcommittee (the Subcommittee) to develop recommendations to the larger NFAB for travel management on the Forest. It was intended that advice provided by the NFAB would be used by the Forest Service to develop a proposed action or alternatives to be considered in the EIS. Members appointed to the Subcommittee represented a wide variety of interests, including both motorized and nonmotorized recreationists.
To assist their efforts in evaluating the potential for establishing a designated OHV trail system on the Forest, the Subcommittee distributed a User Needs Questionnaire to solicit input from both OHV and non-OHV users. By December 2005, some 559 responses had been received. To supplement the information received from this effort, the Subcommittee also conducted four public meetings in South Dakota and Wyoming in which they listened to ideas, suggestions and concerns from off-highway vehicle users, outdoor recreationists, interested stakeholders and community members.
NFAB Recommendations – Based on public input solicited and received, the Subcommittee issued a report on June 8, 2006 (Blair et al. 2006). The report contained eleven core recommendations regarding design and management of a designated system of roads, trails, and areas. The report made it clear that these recommendations “are intended to be general in nature.” The eleven recommendations offered by the Travel Subcommittee to the NFAB are incorporated by reference in this analysis, and are summarized as follows:
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Black Hills National Forest Travel Management Plan
1. Our Setting/Niche – “The Subcommittee recognizes that motorized vehicle use including OHVs is an important part of the recreation experience on the Black Hills. The Subcommittee recommends that an OHV trail system be developed, within the context of overall motorized uses, which provides for a variety of opportunities but does not dominate or unreasonably interfere with other multiple uses on the Forest.”
2. Active or a Passive System? “The Subcommittee recommends an ‘active’ system versus a passive one. A passive system is similar to what we have today—routes and areas are designated as open or closed, and people use these routes/areas as desired. An active system is one that is specifically designed, maintained, and enforced to provide for specific uses. The Subcommittee recognizes that funding would play a large role in the size and nature of the system.” (Emphasis added.)
3. What are the economic and funding issues? “The Subcommittee recognizes that the size and nature of an OHV system will depend substantially on the funding sources available. The Subcommittee supports pursuing all possible funding options.”
4. What would be the role of the States and local communities in developing and managing an OHV trail system? “The Subcommittee recommends that OHV management on the Black Hills National Forest be a cooperative effort between the Forest Service, the States of South Dakota and Wyoming, and local counties. The Forest Service would have primary responsibility for an OHV trail system (as well as other transportation systems) on NFS lands.”
5. What should the system look like/consist of? “The group likes the concept of “Gateway Communities” or of at least connecting/tying in communities in some fashion. In general, the system should consist of a main arterial system extending throughout the Black Hills and a network of routes branching off the main system. The focus would be on multiple scale loops as opposed to dead-end spurs. Many of the routes would be shared by multiple users… The group recognizes that, for the most part, there are already an adequate number of routes on the Forest that could be developed into a system [and that] some current, non-system routes may need to be included in the system.” The Subcommittee stated that they did not envision that a large number of new routes would be developed, and that the development of new connections or “limited new routes…should be off-set by the removal of other existing routes. In the end, there should be less ‘tracks on the ground’ than currently exists.”
6. How do we address populated areas? “General consensus was that it is important to limit the amount of noise and potential conflicts adjacent to communities/ subdivisions, and that an OHV trail system should focus more on areas away from populated areas.” The Subcommittee recognized that concentrating motorized use near populated areas “can be a nuisance for some and cause conflicts” and that efforts should be made to reduce this nuisance and conflicts. The Subcommittee noted that providing motorized access from these areas while reducing conflicts could be “the most difficult aspect of the entire process.”
7. Game Retrieval – “The Subcommittee recommends that allowances be made for game retrieval as part of the motorized use designation process.” The Subcommittee recommended further that the program on the Forest should be consistent with other Federal and State agencies, notably Custer State Park, and that “No unacceptable 10
Draft Environmental Impact Statement
resource damage, as defined by the Forest Service, will occur as part of retrieval operations.”
8. Firewood Collecting – The Subcommittee recognized that many residents collect firewood on the Forest to heat their homes, and recommended “that motorized use to collect firewood:
a. Require a firewood permit.
b. Be limited to areas designated by the Forest Service which can be modified as needed.”
9. Dispersed Camping – “The Subcommittee recommends that dispersed camping using motorized vehicles off designated routes be allowed, but motorized vehicles be restricted to within 300 feet of an open, designated route using the most direct route to the camp site.”
10. Cross-Country Motorized OHV Use – “The Subcommittee recommends that cross-country motorized OHV travel be allowed only within designated areas. Exceptions to this would be for administrative and permitted uses, public safety, fire suppression, and search and rescue.” The Subcommittee offered no recommendation as to the size and nature of these designated areas.
11. Mud-Bogging – “The Subcommittee recommends that no mud-bogging be allowed on National Forest System lands,” noting the resource damage that accompanies such use.
Forest Service Efforts
The Forest Service also conducted work outside the framework of the NFAB. During this preliminary public involvement stage, Forest leadership met with Indian tribal leadership to consider the travel planning process. The Forest Service also sponsored and conducted workshops. The Forest, in cooperation with the National Off-Highway Vehicle Conservation Council (NOHVCC) conducted an OHV Route Designation Workshop in October 2006 for agency personnel and the public. The purpose of this workshop was to acquaint agency personnel and the public with the Travel Management Rule and its implementation. In November 2006, the Forest conducted four “Travelways” workshops. The purpose of these workshops was to gather public input and ideas for developing a proposed action. Individuals attending these workshops identified routes they felt should remain open for public use on Forest lands, and suggested changes or additions to the travel system. Participants at these workshops contributed site-specific information that was used to develop the proposed action.
The Forest then convened decisionmakers and resource specialists from the Supervisor’s Office and all four Ranger Districts, to design and display a motorized travel system that would follow the NFAB recommendations and meet public desires expressed up to that time. The aim was to develop a system that a system that would also reduce or minimize potential resource damage, and be practical to implement.