The Smokey Wire : National Forest News and Views

I’m at the Retirees’ Reunion in Missoula, so if you are interested in submitting a guest post, this would be a good time to do so.

I heard from a number of people since I posted about Roadless last week.

There are a couple of interesting things worth pointing out and discussing.

While as the Chiefs’ letter pointed out, the initial Roadless Rule was about logging,

The Forest Service would do well to remember that 80 percent of its road budget was cut as a surrogate to stop the agency from building roads in roadless areas and selling old growth. Road maintenance became a major issue and roadless areas took center stage for political, environmental and budgetary reasons. This led to the suspension of road building and subsequent development of the 2001 Roadless Rule”

recreation folks like Don Amador and Patrick McKay re telling us about collateral impacts on recreation. How did that happen?

I have also been hearing from folks that a difficulty is that given the Roadless Rule, districts that want to get things done often don’t go into them for fuel treatment projects  (given a choice) because they know they will encounter disfavor among certain groups and possibly litigation.  That is absolutely rational, given metrics of organizational success.. and at the same time a potential problem

Something that State Rules considered, or put in, was the need for RF approval of certain kinds of projects.  Which some people think is an opportunity for arbitrary and capricious decisions, as in “don’t do it.”  Again, there’s a theme that the 2001 Rule has flexibility, and doesn’t address recreation (it was about timber) and yet seems to have impacts on whether projects are planned, and how recreation is handled.

I think Don Amador has an interesting idea in his comment and op-ed- maybe it’s time to reimagine the recreation elements of Roadless and give it another name. I believe the Backcountry name is similar to one theme in the Idaho Rule.

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PUSH THE ROADLESS RESET BUTTON

Today marks the deadline for submitting initial public scoping comments in a new rulemaking process by the U.S. Department of Agriculture (USDA) to rescind the 2001 Roadless Rule in an effort to bring clarity on just how our natural, cultural, and recreational resources should be managed in Inventoried Roadless Areas (IRA).

As a motorized recreation lead who participated in many of the “roadless” political, policy, and legal battles (circa 1998-2010), I feel this process could be used as a time for private and public stakeholders to push the reset button on this somewhat contentious issue.

My thoughts today are informed by the past but more importantly guided by my more recent experiences as a participant and/or lead in various recreation or forest health/wildfire collaboratives.

In my view, the Roadless Rule has raised barriers to active management that limit line-officer flexibility when it comes to planning for and/or implementing forest health, fuel reduction, or wildfire mitigation projects.

Also many IRAs have popular designated OHV routes, but that same lack of flexibility in some cases severely limit consideration of designating a new connector trail, constructing a warranted trail reroute, or using a small trail tractor to perform needed route maintenance or construction activities.

I hope this rule-making process finds a way to amend or streamline current regulations or policy to authorize and encourage hybrid multi-objective fuel or wildfire mitigation projects that include a recreation component such as constructing a new trail or reconstructing an old trail within the project footprint to meet visitor needs.

I believe USDA will find both motorized and non-motorized recreation groups in strong support for the use of existing Forest Health Collaboratives that bring diverse stakeholders and partners in local communities together to increase the pace and scale of Forest health, pre/post fire mitigation, and recreation efforts. These groups already consist of representatives from tribes, private timber companies, resource conservation districts, state and local fire agencies, cattle ranchers, conservation groups, hunters, and OHV organizations. Why reinvent the wheel?

Finally, this process might want to consider revising the term IRA to a better descriptive that is more relevant. Since IRAs often contain a meaningful amount of popular roads and trails the stakeholders may want them designated as an official Backcountry area with an “active management” focus.

Let’s hope that all sides can agree that some form of a reset is needed to address current and future needs of these important forest lands.

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Don Amador has been in the trail advocacy and recreation management profession for 35 years. Don is President of Quiet Warrior Racing LLC. Don serves as the Western States Representative for the Motorcycle Industry Council. Don is Past President/CEO and current board member of the Post Wildfire OHV Recovery Alliance. Don is a Co-Founder and Core-Team member on FireScape Mendocino, a forest health collaborative that is part of the National Fire Learning Network. Don served as an AD Driver for the Forest Service North Zone Fire Cache during the 2022, 2023, and 2024 Fire Seasons. Don writes for Dealernews Magazine. Don is a Northern California native and writes from his home in Cottonwood, CA.

Apologies to all.. the below is from Patrick McKay in response to another comment, but provides some context for a long history (including litigation) of whether roadless is intended to be pre-Wilderness and how the two relate.  Due to being in my hotel room somehow I missed explaining that. It’s probably another piece in the puzzle of Roadless as written in the reg, vs. Roadless as carried out in practice.

The Congressional attempts to rein in administrative wilderness designations are the Wilderness Act itself requiring Congress to designate Wilderness, plus every time Congress designates new Wilderness areas with specific boundaries and prohibitions on creating buffer zones or precluding other uses in adjacent areas outside the wilderness because they can be seen or heard inside the Wilderness. Every time an agency closes a cherry stemmed road or boundary road, every time it manages land adjacent to a Wilderness area as some form of “recommended wilderness”, “lands with wilderness characteristics”, “roadless area”, or “semi-primitive non-motorized” ROS zone, it is ignoring the direct intent of Congress and creating de facto administrative expansions of the Wilderness area contrary to Congressional directives.

Regarding the Wilderness Act itself, the legislative history makes it clear it was intended to prohibit all forms of administrative Wilderness designation. Here is something I wrote in my objections to the recommended wilderness areas in the GMUG forest plan that explains it:

The Wilderness Act of 1964 makes it quite clear that new Wilderness areas are supposed to be designated by Congress, not created by administrative agencies. Indeed, the creation of new de facto wilderness areas by administrative agencies was precisely what the Wilderness Act was intended to prevent. As the U.S. District Court for the District of Wyoming explained in State of Wyoming v. United States Department of Agriculture, No. 01-CV-86-B, at *1 (D. Wyo. July 14, 2003) (reversed on other grounds):

“The Wilderness Act declared it the policy of Congress to “secure for the American people of present and future generations the benefits of an enduring resource of wilderness.” 16 U.S.C. § 1131 (a). To effectuate this policy, Congress established the National Wilderness Preservation System (“NWPS”), which would be composed of congressionally designated “wilderness areas.” Id. The Wilderness Act also immediately designated certain areas as wilderness, Id. § 1132(a), and provided the procedure for future designation of wilderness areas, id. § 1132(b). In establishing the NWPS, Congress unambiguously provided that “no Federal lands shall be designated as `wilderness areas’ except as provided for in [the Wilderness Act] or by a subsequent Act.” Id. § 1131(a).
Therefore, Congress has the sole power to create and set aside federally designated wilderness areas pursuant to the Wilderness Act. Parker v. United States, 309 F. Supp. 593, 597 (D. Colo. 1970), aff’d, 448 F.2d 793 (10th Cir. 1971). In fact, the primary purpose of the Wilderness Act was to provide:
“[a] statutory framework for the preservation of wilderness [that] would permit long-range planning and assure that no further administrator could arbitrarily or capriciously either abolish wilderness areas that should be retained or make wholesale designations of additional areas in which use would be limited.”
Id. (quoting H.R. Rep. No. 88-1538). To this end, the Wilderness Act removed the Secretary of Agriculture’s and the Forest Service’s discretion to establish de facto administrative wilderness areas, a practice the executive branch had engaged in for over forty years. Parker,309 F. Supp. at 597, aff’d,448 F.2d at 797. Instead, the Wilderness Act places the ultimate responsibility for wilderness designation on Congress. Id.16 U.S.C. § 1131 (a). In this regard, the Wilderness Act functions as a “proceed slowly order” until Congress — through the democratic process rather than by administrative fiat — can strike the proper balance between multiple uses and preservation. Parker,448 F.2d at 795. This statutory framework necessarily acts as a limitation on agency action. Id. at 797.”

The quote from the Congressional Record in the case above is particularly relevant, as it clearly establishes that the intent of Congress in passing the Wilderness Act was to “assure that no future administrator could arbitrarily or capriciously either abolish wilderness areas that should be retained or make wholesale designation of additional areas in which use would be limited.” H.R. Rep. No. 1538, 88th Cong., 2d Sess., reprinted in 1964 U.S. Code Cong. Ad. News 3615, 3616-17. In other words, Congress intended to entirely remove both the designation and abolition of wilderness-type areas from the purview of administrative agencies like the Forest Service. Such designations and their equivalents were intended to be under the sole jurisdiction of Congress itself.

 

Here is what I came up with, I’d be interested in what everyone thinks., so I can add or take out stuff before I submit. Feel free to use anything in yours.

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I worked directly, hands-on with the Colorado Roadless Rule for over six years, through Democrat and Republican State and Federal Administrations, and so the following comments are the voice of experience:

1. It makes sense to have a public process to change the Rule rather than remove it. What happened in Alaska? The next Administration just put it back.  For the good of the public, the employees, and the taxpayers, it makes sense to come to a stable solution. That would require a public and transparent process. We can assume it would be litigated but that’s OK. Colorado and Idaho were litigated.  Also I would argue for sticking to a timeframe, and not letting it get away from you in pursuit of agreements that might never happen.
2. Any other alternatives should be based on specific needs for change.
   1. The first step should be to fix all the maps in a common-sense way. For example, in Colorado we found areas could be mapped to the nearest road or ridgetop, making any management easier.
   2. The second step is removing roaded areas from the roadless inventory. The 2001 Rule handled this by calling them “substantially altered” and having different requirements within the Rule.  Just take them out.  In Colorado we found “real unroaded” acres we could add back in.  This also works and could be part of negotiation.
   3. The third step would be a forest- by- forest identification of the need for change, including a public process for comments. The WO could develop a template to collect the information such that all the forest would have to do is prepare a forest specific presentation and provide the link to post comments. It would be cool if the comments could be linked to a map, such that people could also look at the map and see what comments are associated with it.
   4. The fourth step would be for OGC and DOJ attorneys to do a “need for change” highlighting parts of the 2001, Colorado and Idaho that have led to legal difficulties, and provide recommendations for clarifications.
   5. The fifth step would be to round up the national groups – I have mixed feelings about a FACA committee to give advice about general fixes for things like mechanical fuel treatments and other topics that make sense to be approached nationally.  Perhaps it would be better for an NGO to convene a series of meetings with a workgroup of diverse interests, with tentative recommendations and opportunity for public comment on their recommendations at each stage. The problem with FACA committees is that by size, they can’t include the diversity of perspectives of stakeholder groups.  For example, if there’s one FACA position for outfitters, it seems likely that holders of jeep or OHV permits might think differently than whitewater permittees. I’ll also add that some members of the RACNAC, (the previous Roadless Area FACA committee) did not live up to our expectations for contributing to the discussion.

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For TSW Readers:  Folks were chosen for the RACNAC for political reasons, like maybe they represented important groups, I guess.  At the Salt Lake RACNAC meeting, the Colorado folks were sitting behind one member of the RACNAC who was looking at photos of his dog on his laptop and clearly not paying attention to the presentation. But on the positive side, at another meeting in DC, an NGO person spoke who knew not very much, and had apparently been briefed on the plane as to what to say.  FS people had to be polite, but other RACNAC people could and did make the point “we don’t need to be lectured, thank you!” The leadership of RACNAC was outstanding- Ray Vaughan and Dale Harris- but good policy shouldn’t depend on a few key people with relational superpowers, IMHO.

If you’re not familiar with that part of history, this is from a RACNAC meeting on Idaho, note the temp road recommendation, also how small the RACNAC was.

Glenn brought up another talking point from the Roadless discussion- the four Chiefs’ letter  didn’t address it, but I have seen it in other letters and stories and the FS will probably see it in form letters.

Again, it seems to me that we need to be clear whether we are talking about removing the Rule or updating it.  Because if we are updating, we could clarify the kinds of roads and whether they would be open to the public.  It seems to me after listening to folks for all these years that most people just want continued access to the roads and trails they already have.. note the lawsuit on the PSICC.  The cry is always “don’t shut off our access” not “we need more.”  It’s more “maintain the roads you already have” than “let’s get more roads.”

So.. if you had specific carve-outs for specific kinds of roads… like temp roads for fuel treatments within 1/2 mile of communities or in areas within a CWPP (believe me I have probably spent 1000 hours talking with people about this alone.. different maps of WUI and so on) or a road to access a power line for maintenance that would be closed to the public and funded by the power company..what evidence do we have that these kinds of carve-outs lead to more ignitions? Do we have any specific cases where the changes in the Colorado Rule led to ignitions?

If recreationists don’t want more permanent roads, and timber companies don’t, and the Forest Service certainly doesn’t, who would want them?

Now there could indeed be illegal use of temp roads for fuel treatment projects, but if they are ripped afterwards? Would that be a question of illegal use, or improper gating, or ???

My point is that this is another “talking point that sounds plausible” but, as in so many cases, if you bring the question down to specifics, it opens up an entirely different set of questions for discussion.

1. Are we talking update or removal of 2001? If update, describe worries and add text to reduce them

2. Even if the 2001 Rule were removed, what kinds of roads do people really want (that aren’t the same as Colorado or Idaho)?

3. If a middle path is chosen, with temp roads and more or less private administrative (gated) roads are we worried about illegal use of any roads?

4. All projects require site-specific NEPA.  As I recall, I was selecting trees on Chiloquin District and unbeknownst to me, someone was blocking roads at the same time.  In that country, I was able to drive around the blockage, due to the lay of the land and the vegetation. That isn’t always the case.. would the site-specific NEPA be the place to ensure that the roads would be effectively closed?

Again, it seems that some talking points are about “bad things that might happen.” It seems to me that we have info, with the State Rules, on what actually did happen with exceptions.  Certainly both kinds of information should be noted and considered. Which is not an argument to rescind the Rule, but that’s why I think it’s important to start with…  “I want to keep, update, or get rid of.”

Finally, it seems that many people were interested in the State Rules to the point of litigating them.  But once they were in place, the drama completely decreased.  No one was particularly interested in the projects (other than a certain set of coal mines and some ENGOs).