Kevin Khung, District Ranger
The Trails Preservation Alliance (TPA) and the Colorado Off-Highway Vehicle Coalition (COHVCO) contend that the Proposed Action (Alternative 2) in the Pagosa Ranger District Travel Management Environmental Assessment (EA), which closes all but 18 miles of trail in the C&D zones on the Pagosa Ranger District, is irrational and arbitrary, for the following reasons:
Mixing actions in a specified, limited geographic portion of the District with District-wide actions of a different nature.
Relief we seek:
The Evidence Supporting Our Contention that these road and trail closures are arbitrary and capricious:
Let’s try to untangle the FS claim that the closure of the existing trails in the C&D zones (the only zones whose trails are under analysis) is a gain, not a loss.
The reason we are going into detail here is that a close inspection of this analysis reveals that the proposed action for the C&D zones appears to result in a 68 percent loss of trail mileage, not an increase in trail mileage.
1. Disregard for the standards set by the CEQ for the no-action alternative
The Forest Service escapes its old Forest Plan commitment in the C&D zones by providing no no-action map, and no stand-alone no-action alternative. The absence of the no-action map and the absence of a complete and accurate disclosure of the existing condition (including a map) obstructs three vital elements of the CEQ standards: 1) The analysis must include a no-action alternative that accurately describes the existing conditions. 2) The absence of a no-action alternative precludes a comparison between the effects of the proposed action and the existing conditions. 3) The absence of a no-action alternative thwarts informed public participation and comment (as abundantly illustrated by the frustrated comments from the public sector most affected by the proposal, in Appendix A).
Skipping the no-action alternative analysis also enables the Forest Service to make the acreage numbers more important than the miles of trail: Of course there will be zero acres open to cross country travel, to comply with the TMR. But we are not designating acres, we are designating miles of trail. If the Forest Service had analyzed an honest no-action alternative, we (and the appeal review officer, and the court, if necessary) would realize that the number of acres open to cross-country travel in mountain terrain is relevant only to the change of the area designation. It is not relevant to the number of miles of existing trail that the Forest Service proposes to designate.
40 CFR 1502.10 allows a for slightly differing formats, if the agency determines a compelling need to do so, but it does not allow any variance in the presentation of the alternatives. On page 8 the Forest Service states that it believes that their description of the Affected Environment will satisfy the no-action requirement at 40 CFR 1502.14. This is a strange claim, because a stand-alone No Action alternative is clearly required by Section 1502.14 (d): agencies shall, “Include the alternative of no action.”
The CEQ’s Forty Questions further clarifies, “it is difficult to think of a situation where it would not be appropriate to address a "no action" alternative. Accordingly, the regulations require the analysis of the no action alternative even if the agency is under a court order or legislative command to act. This analysis provides a benchmark, enabling decision makers to compare the magnitude of environmental effects of the action alternatives. It is also an example of a reasonable alternative outside the jurisdiction of the agency which must be analyzed. Section 1502.14(c)”.
The CEQ makes it abundantly clear that the purpose of the No Action alternative is to provide the baseline, to which the other alternatives are to be compared.
The scope of this analysis is intentionally limited to the designation of existing trails in the C&D zones, and a few changes to the present NFS routes District-wide but no designation changes District-wide. However, a very narrow scope doesn’t justify leaving CEQ-required elements out of the analysis.
But this is just a minor little EA, covering a tiny part of the Forest and some trails that somebody made thirty or forty years ago (page 24, “Prior to 1980, most of these trails were open to motorized use…”)
Well, let’s take a look at how the Pagosa R.D.’s unusual presentation of “no action” affects the presentation of the proposed action:
For example, the EA persistently refers to “cross-country travel.” The implication is that vehicle users are behaving in random, unpredictable ways because theoretically, they can operate their vehicles anywhere they wish. However, examining the USGS 7.5 quad maps of the C&D zones under study indicates that this is not and cannot be happening, because the topography is too steep and rough, and the terrain too heavily vegetated. The Forest Service makes no effort to disclose this in the analysis. We fully intend to present the USGS maps and 3-D modeling media to the appeal review officer and to the court if necessary, so that any person, whether experienced in mountain recreation or not, can see that random, unlimited cross-country vehicle travel is not what is actually happening in the C&D zones on the Pagosa Ranger District.
What is occurring, and has occurred for at least 40 years— is “repetitive use of cross-country routes” (pg. 22). This does indeed make travel ways, for people to find their way through the mountains. That is exactly what Knight & Gutzwiller, Bowles, Cole & Landres, are telling us—use the travel ways. They are not telling us we must close all lightly-utilized travel ways in remote areas (like the C&D zones on the Pagosa R.D.).
We can easily find a good example of how the absence of a no-action alternative skews the data. Refer to page 42: Table 5: Estimation of elk habitat available under the No Action, Alternative’s 1 and 2 (sic).
Table 5 does not present a comparison of the existing situation to the proposed action. The figure of only 657 acres of available elk habitat is skewed because random, unrestrained “cross-country” driving is not the existing condition. Repeated use of “cross-country travel ways” is the condition. If we had a map showing these repeatedly used travel ways, and a description of the size and uses of them, we would see that there is far more elk habitat than 657 acres. A CEQ-compliant no-action alternative would show large blocks of land for elk habitat that is not interrupted by random, unpredictable “cross-country” travel.
2. Disregard of prior commitments to the travel ways in the C&D Zones
It was a Forest Service administrative decision to allow this activity in C&D zones. The Forest Service’s present claim that the trails that became established as a result of this decision do “not count,” (page 32), because they are not “system routes,” or, they are “not maintained,” and thereby causing those travel ways to be considered somehow “not acceptable,” or “not important,” and not worthy of their own no-action map and analysis, is the essence of capricious.
Why? Because the Forest Service left all those trails open to the public for at least 25 years. For all we know, the Forest Service built at least some of them prior to 1983, in the 1970’s, or even during the Great Depression when the government hired unemployed workers—and the Forest Service employed many of those people and established living quarters and camps for them and one of their tasks was to build trails. This would represent a major Forest Service commitment. The Forest Service knows that someone is keeping those trails open, either by repeated use of “cross-country travel ways” or by actual maintenance activities. That is undeniably an implied commitment. The Forest Service issues permits to outfitters (pg. 93) who use those trails, a clear and specific commitment. And, “extensive site specific surveys” were conducted during 2007 to locate and map any OHV use of routes other than open system roads and trails in the C and D zones (page 25).
3. No unresolved conflicts are presented
There’s another problem with leaving the no-action alternative out. Under the CEQ regulations, the Agency is required to:
Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources as provided by section 102(2)(E) of the Act. (40 CFR 1501.2(c)).
The Forest Service has correctly applied this requirement in the context of whether or not to prepare an EIS. By the same token, the Forest Service presents no rationale for not designating all of the existing trails, as shown on other agency maps and other commercially available maps, as well as all user-submitted maps.
Nowhere in this EA are any unresolved conflicts (in the matter of the trails in C&D zones) ever brought to light.
What is “impact,” anyway? How is it measured? How can we compare the impacts of one alternative to another if the impacts are very likely not even measurable as described in the summary of Knight & Gutzwiller (E.A. pages 40 & 41)?
Referring to page 40, 188.8.131.52 Terrestrial MIS, the entire passage summarizing the Knight & Gutzwiller collection of essays and case studies strongly supports designating trails and requiring people to stay on them. Yet nowhere in the Knight & Gutzwiller work is any evidence or research cited that justifies closing all or even most of the trails in dispersed wildland recreation environments. We refer back to the C&D zones on the Pagosa Ranger District: a dispersed wildland recreation environment. The Knight & Gutzwiller work urges designated trails. Except for bullet item 5, the Forest Service summary refrains from its own third hand speculation.
Further implicating the Forest Service speculation is the Forest Service’s own statements that the use of the existing travel ways is relatively low. There are no “areas (roads and trails)” in the C&D zones on the Pagosa Ranger District that are “heavily used.
And, further discrediting the Forest Service speculation is that, after reviewing the essays in the Knight & Gutzwiller book, we can say with confidence that when those writers discuss “greater disturbances,” they are referring to heavily visited wildlife refuges, developed recreation sites, and water recreation. The term “heavily used” does not appear in any discussion of remote trails that are used on a predictable schedule: summertime; weekends; and, as proposed, only on the designated roads and trails.
Not mentioned by the Forest Service is the fact that the Knight & Gutzwiller work includes a chapter on case studies of wildlife refuge and bird sanctuary management issues. Where human visitation was causing measurable, negative disturbance to the wildlife, the solution in every case was to restrict the humans to their motor vehicles. We fully intend to present this reference work to the appeal review officer, and to the court if necessary (our expectations of the Forest Service reaction to our comment is based on the Forest Service response to other comments), to prove our point.
Please refer to Table 3, “Forest Plan MIS reviewed for this analysis:”
Twenty four species are listed. Of those 24, 19 use habitat or have been observed in the C&D zones. Of those 19, 15 have populations that are stable, trending upward, or abundant. One species has stable to slight downward trend in “east side of SJNF.” It is not stated whether the “east side of SJNF” includes the C&D areas in the Pagosa Ranger District; private land and the city of Pagosa Springs occupies a large block of acreage between the C&D zones and the eastern part of the Forest.
Three species have “downward trends. These are fish species, and the habitat locations cited in the table, “portions of the Piedra River and Devil Creek” are not in the C&D areas under study: No designated motor trails are allowed along the Piedra River except NFSR 622. Devil Creek, about 20 miles in length, is not in the C&D areas. It appears that approximately one mile of Devil Creek lies in the C zone under study, and the other 20 miles are in B zone (motorized on designated routes only), private property, and the State Wildlife Refuge.
A quick review of the Environmental Consequences directs the reader back to Table 3 and provides no further factual, site-specific information about the effects of motor trails in the C&D zones.
At page 21 in the E.A.:
The Rio Blanco River, Chama Creek, and Stollstiemer Creek not affected by activities in the C&D zones because they are in different watersheds.
At page 22:
“Off- road motorized use within the C and D areas occurs on closed roads along with some cross-country travel. The roads are generally rocky and dry, especially in the area around Devil Mountain. Erosion and sedimentation resulting from existing off-road motorized use is localized.”
In other words, insofar as resource issues, this analysis presents no evidence that the current situation (what ever it is) is having any detrimental effects.
4. No climate information
Seasonal closure: the Forest Service has left out of the analysis all information about the climate of the area. The Forest Service has omitted any discussion of the differing effects of rainfall and snowmelt on the condition of single track trails and unmaintained two-track roads.
This is an astonishing omission, considering that seasonal closures due to weather is a centerpiece of the analysis, and road closures that are dependent upon weather conditions are mentioned at least eight times throughout the document.
5. No visitor use numbers to support predictions about levels of use and the resulting effects of the use.
From page 25: “Use of these routes was determined to be relatively low both in terms of the numbers of routes receiving use, as well as the number of people using them.”
And, at page 29: “The proposed closure of the First Fork Road (NFSR 622) to ATVs and motorcycles will negatively affect some Forest users, but will not result in any loss in RVDs for the area or any off-District displacement of users.”
Neither the statement or the prediction are credible, because we can find no factual information in the analysis that could serve as a baseline—even an estimated baseline— from which these claims may be derived.
It is difficult to imagine how to rationally analyze the effects of any visitor activities when the number of visitors is completely unknown.
6. Silence on disposition of the remaining trails not closed by this Decision
It appears from the page 25 and page 29 narratives that there are existing trails in the C&D zones which the Forest Service perceives are not being used by motorcycles or OHV’s. This raises five new questions that the EA does not answer:
• The Forest Service is silent on who else is using those trails;
7. Shifting representations of the trail category called “designated”
Whatever the objective of emphasizing Designated Routes in Table 1 and in the narrative on page 31 may be, for the purpose of comparing the change of trail mileage in the C&D zones under study, this emphasis is moot. Why? Because none of these designated trails are in the C/D zones, and the scope of the analysis insofar as trail designation changes, is limited to the C&D zones. In other words, the trails under consideration are ALL non-system trails.
This analysis looks exactly like a Ponzi scheme. Here’s why: In the environmental consequences (page 27), the FS references 37 miles of lost trail mileage….but those don’t count, if you read page 32, because they’ve not been maintained nor are they designated or system routes…but here we are back to the problem of there being no “designated/ system/maintained” routes in the C&D zones. There are only “ cross-country routes (pg. 22)….” Yet the 37 miles is called out in the Environmental Consequences for Recreation….this must mean that it counts in recreation discussion but it does not count in the transportation discussion. On the other hand, where did the 18 miles the FS chose to designate come from, in an area with no system/ designated/ maintained routes? Further obfuscating the discussions, the Forest Service names the proposed action “new motorized trail designations.” In genuinely Orwellian fashion the Forest Service does not name the proposed action “close 37 miles of trails” ….maybe/probably because the Forest Service loosely interchanges categories of trail ….designated? System? Maintained? while at the same time shifting the significance of those categories….and dismissing any trail that’s not a “system” or a designated trail….in an area that has no system or designated trails….which in turn enables the FS to claim they’ve increased the mileage in the category of designated routes…well, of course they have. Except that no such category exists in C&D zones. There are only “unmaintained” “non-system routes” and “cross-country routes” that are repetitively used”…sounds like a trail…. .in the C&D zones…at least 55 miles of them. Probably more. We do not know, because there is no map and no data of the existing situation. In fact, when you add up the omissions caused by skipping the no-action alternative, it sure can be perceived that the Forest Service is adding considerably less than 18 miles of trail to the designated system
And except for the fact that those pesky 37 miles (or 55, or 74, or whatever) are mentioned in the recreation discussion (184.108.40.206,) and show up on everybody else’s recreation maps, we might not realize that this is a major loss of trail mileage.
10. Mixing actions in a specified, limited geographic portion of the District, with District-wide actions of a different nature.
This odd distribution of analyzed actions has caused even the most involved publics to misunderstand the objectives of the analysis (see page 7, 2.3.1 and 2.3.2).
11. No evidence that the appropriate level of site-specific NEPA analysis was actually conducted (40CFR 1500.2 (b) and 40CFR1502.1)
In other words, the disclaimer on page 7 is inappropriate to this document. The scale of this analysis is so small that it is hard to imagine any reason for not providing detailed maps and site-specific data.
A single example: from page 11, Design Criteria for Proposed Action: “Close, decommission and rehabilitate…..trail along fence off NFSR 730.”
The Forest Service is silent about what fence, whose fence, the purpose of the fence, and where exactly this fence and trail are located. The Forest Service is silent about what is so unique that the passage of several motorcycles, a few times per season, represents or could possibly represent, an irretrievable commitment of resources.
In the EA, at page 25, the Forest Service says,“Extensive site specific surveys were also conducted during 2007 to locate and map any OHV use of routes other than open system roads and trails in the C and D areas.”
And at page 28: “….field surveys were conducted to determine the location and condition of routes being used by the public in these areas.”
However, no maps of these surveys are provided. Especially conspicuous by its absence is a map of all the existing roads and trails in the area. It is quite reasonable to expect at least this level of specificity for a project-specific EA in a small geographic area, which as stated in the P&N, is what this EA is (page 1: “….history of the project proposal….the purpose of and need for the project …”). We contend that the Forest Service is obliged, and should be pleased, to provide the maps they made in support of this EA.
Instead, all we have is a very general description of conditions (page 25) and we are expected to assume that this very general description is of the study area only by the inclusion of the named roads:
“Extensive site specific surveys were also conducted during 2007 to locate and map any OHV use of routes other than open system roads and trails in the C and D areas (i.e., closed roads and user-created routes). Use of these routes was determined to be relatively low both in terms of the numbers of routes receiving use, as well as the number of people using them. Closed roads are generally in good/fair condition, but some display signs of vegetation impacts, rutting, soil loss, poor drainage, etc. Most of the observed use appeared to be occurring during big game hunting seasons, especially along sections of roads closed to full size vehicles such as 730A, 804, and 920, with some additional signs of activity from non-hunting ATV and motorcycle users recreating in the vicinities of NFSR 730, 920, and 626.”
The Forest Service is silent on the rationale for selecting only trails that showed “signs of” OHV/motorcycle use; the Forest Service is silent on what those “signs” are; the Forest Service has chosen to omit any maps generated by these extensive surveys; the Forest Service is silent on what “light” use is, as opposed to moderate, heavy, or overcrowded; and, the Forest Service is silent about any site-specific issues observed during these surveys.
Skipping the stand-alone no-action alternative affirms this suspicion.
We would contend that the narrative on page 25 and page 28 do not meet even a minimal standard of evidence that might satisfy the intent of 40 CFR 1500.2 and 1502.1.
12. Misrepresentation of the Literature Cited,
The phrase “many studies” is inappropriate in any analysis, and so we must discard all implications that such phrases offer.
In the matter of misrepresentation, neither of the studies cited for this analysis about elk habitat had anything whatsoever to do with single track motorcycle trails or unmaintained two-track.
The literature cited is about logging roads servicing timber harvest, arterial Forest roads, ditched and graded, with frequent full-size vehicle and frequent truck traffic. It is inappropriate to use this research as the model for the effects of lightly-used single track motorcycle trail and lightly-used, unmaintained roads.
We have these references. We will include them in our presentation to the appeal review officer and the court, if necessary.
Insofar as the statement on page 42 “Less human disturbance in the area could equate to increased hunter success for hunters who pursue game away from designated open roads” raises a question that is outside the scope of this analysis: do we want elk habitat for the benefit of the elk or for the benefit of the hunters?
13. No rationale for closing road 622
Please refer to Appendix D, First Fork Road Mixed Use Survey.
From page 94: THE CRASH PROBABILITY IS ASSESSED TO BE HIGH DUE TO THE DEMONSTRATED ACCIDENT HISTORY, TRAFFIC TYPE CONSISTING OF A HIGH PERCENTAGE OF TRUCK/TRAILER COMBINATIONS, POOR ALIGNMENT AND TIGHT RADIUS CURVES, LIMITED SIGHT DISTANCE, PRESENCE OF ROADSIDE OBSTRUCTIONS. THE CRASH SEVERITY WAS ASSESSED TO BE HIGH DUE TO THE STEEP EMBANKMENT ALONG MUCH OF THE ROADWAY, THE PRESENCE OF NUMEROUS ROADSIDE OBSTRUCTIONS, AND THE ROCKFALL/LANDSLIDE HAZARD. MITIGATION MEASURES COULD BE IMPLEMENTED TO REDUCE THE CRASH PROBABILITY AND SEVERITY RISK.
That can be dangerous stuff, to be sure, but that dangerous stuff will be present regardless of whether non-highway-legal vehicles are allowed on the road. The report makes no direct or indirect claim that any of these hazards have any relation whatsoever to the presence of non-highway-legal vehicles on road 622.
The Forest Service reports a total of two separate single-vehicle accidents. We perceive that to mean that only one vehicle crashed, all by itself, in each incident. The Forest Service presents no connection between these crashes and non-highway-legal vehicles being allowed on the road. In fact, the Forest Service tells us that the accidents were caused by excess speed and driver inattentiveness. The Forest Service is silent about what type of vehicles crashed. The Forest Service is silent about the severity of the injuries. The Forest Service is silent on how the presence of unregistered vehicles on this road have any connection to these two crashes. And, the Forest Service has no record of its own of any other crashes on this road.
The Forest Service fails to explain how or why removing “OHV” traffic will be the “most effective” mitigation for the hazards listed in the report. In fact, “OHV” and/or “non-highway-legal vehicles” are not even discussed after page 95 —until the suggested mitigation measures are presented on page 97:
“Mitigation Measures: “THE MOST EFFECTIVE MEANS TO REDUCE CRASH PROBABILITY AND SEVERITY RISK WOULD BE TO DESIGNATE THIS ROAD FOR USE BY HIGHWAY LEGAL VEHICLES ONLY. ALTERNATIVELY, THE FOLLOWING MITIGATION MEASURES SHOULD BE IMPLEMENTED TO REDUCE CRASH RISK.”
And there follows an astonishing price tag for putting up one warning sign, removing 10 trees less than 24 inches in diameter, putting up 10 object markers, adding one mile of guardrail, moving one sign, and brushing approximately seven miles.
In other words, there is no rational connection between the Decision (designating this road for use by highway legal vehicles only) and the data (the recorded hazards and crash history of this road).
It appears as though the Forest Service simply desires to “effectively remove the ability of users of these (non-highway-legal) vehicles to link up these areas and trails.” (page 29)
14. Intentionally destroying route connectivity
The Forest Service is fully aware that it is destroying the connectivity of these routes:
From page 29: “The construction of a parking area for the 804 trail will provide a means for users to access the trail, but it will not alleviate the problem associated with its lack of connectivity to other routes in the area, which in turn will render the trail less appealing and utilized in the future.”
From page 29: “…. lack of connectivity of the proposed trail network…” And from page 29, “…..will effectively remove the ability of users of these vehicles to link up these areas and trails….” And from page 29 “…..longer rides utilizing multiple trails and roads….. would no longer be possible under this alternative.”
Another example, also from page 9, “Close, decommission and rehabilitate…..trail around (not through) spring at upper end of NFSR 920…” This spring must be pretty critical. Maybe it’s the only one. Maybe MIS habitat is there. Maybe migrating birds use it.
Except that if we study the USGS maps of the area, and the commercially available recreation trail maps of the area, and maps published by other agencies, we find , along or near to road 920 and within or very close to the C&D areas under study, Mesa Spring # 1, Mesa Spring # 2, Farrow Springs, the cited “spring at upper end of 920,” Snow Springs, Lost Springs, Horse Mountain Springs, Ford Spring, and two un-named springs.
NEPA is about irretrievable commitments of resources. The Forest Service has nothing to say about what or how one mile of single track (the trail that we speculate goes along the fence of NFSR 730), which amounts to .0001 percent of the acreage under study (one ten-thousandth of one percent), could represent any possible irretrievable commitment of resources.
By the same token, the Forest Service provides no rationale for intentionally destroying the recreational value of a coherent, connected system of trail loops (the human part of this environment).
15. No Standards are set for determining which routes can be designated
This different from “Design Criteria.”
We would not know that “not crossing a perennial stream” is a requirement except that we have Forest Service response to previous comment in which this phrase appears to be a “rule.” The same is true for requiring trails to be in “rocky, dry soils,” and “well-graded.”
In the E.A., it is not presented as a rule. It is mentioned, in context, as desirable, but not specifically called out as a requirement.
These particular requirements are arbitrary, for the following reasons
16. Failure to disclose the indirect, long-term effect of the Proposed Action
The fact of this matter is that the Forest Service has failed to disclose the single measurable environmental consequence of the proposed action for the C&D areas: the proposed action will make the area less accessible, it will have fewer travel ways, and this, in turn, will cause the area to become similar to an “unroaded” area.
Thank you in advance for reconsidering this proposed action, and initiating a CEQ-compliant, professional analysis to replace it.