TPA comments to the FS concerning the Bear Creek Green Back Trout issue


March 18, 2014

  Bear Creek Watershed Restoration Project
Attn: Allan Hahn, District Ranger
Pike Peak District Ranger
601 S. Weber Street
Colorado Springs, CO 80903

RE: Bear Creek Watershed Assessment – Scoping Comments

Dear Ranger Hahn and ID Team:

Please accept these comments on the Bear Creek Watershed Assessment on behalf of The Colorado Off-Highway Vehicle Coalition (“COHVCO”) and The Trails Preservation Alliance (“TPA”).  COHVCO is a grassroots advocacy organization representing approximately 150,000 registered off-highway vehicle (“OHV”) users in Colorado seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The TPA is a 100 percent volunteer organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding.  The TPA acts as an advocate for the sport and takes the necessary action to insure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse trail riding opportunities. COHVCO and TPA are referred to collectively in this correspondence as “The Organizations.”

It is essential that the Forest Service seize this opportunity to restore a diverse array of recreational uses to the Bear Creek Watershed and institute a sustainable network of actively-managed trail opportunities.  The Organizations support Alternative B with certain exceptions/comments as more specifically addressed later in this correspondence.  The Organizations also believe that proposed trail building and rerouting should occur as soon as possible to maintain recreational resources that are highly valued by our users and to remove pressure from the Bear Creek area, and allow for more effective management of any threats to the Greenback cutthroat trout (“GBCT”). 

I. Background

The context of this project appears to have unfortunately tainted the agency’s desire to protect the GBCT  which has restricted its normally broad range of discretion and tools for the management of issues.  It was bad enough that the agency chose to settle the lawsuit brought by the Center For Biological Diversity (“CBD”).  To the extent that choice could be justified, it would be because the settlement was based on the most minimal intrusion into the agency’s discretion, and allowed the agency to avoid an adverse finding on any of the CBD claims.  The Settlement Agreement makes all of these points quite clear.  The Settlement does not constitute an admission of any factual assertion by CBD.  It does not reflect a finding by the Court on any legal or factual proposition advanced by the suit.  It does not in any way constrain the Forest Service’s discretion, following satisfaction of the very limited procedural obligations outlined, to adopt a rationally defensible resumption of past use, or authorization of new or different uses, including motorcycle access within or near the Bear Creek Watershed.  The Settlement involves very limited, purely procedural commitments by the Forest Service.

Somehow, the Settlement Agreement has acquired a substantive effect in the minds of many Forest Service personnel that does not accurately reflect the true scope of the Settlement Agreement and overlooks the ongoing requirements of both the Endangered Species Act and FLPMA that best available science be relied on for all Forest Service planning.  Had the Organizations been somehow able to predict this outcome, they would have exercised our rights to formally object to the Court’s approval of the Settlement.  There is time for those with the proper, and only reasonable, view of the Settlement to take appropriate leadership of the Watershed Assessment process and restore some balance to management of the area. The Organizations believe this NEPA process is the correct mechanism for such input.   If the current “temporary” closures are made permanent, this improper understanding and erroneous scope of analysis would be made permanent.

Aside from legal and political posturing, there are some relatively simple truths that should guide any evaluation of management options in the Watershed: (1) water quality issues relate almost entirely to road/trail location and physical characteristics such as soil type, sloping, proximity to active water flow, not to the type, or even volume, of recreational traffic on the route; (2) recreation has been deemed a secondary or low level threat to GBCT; (3) the primary threats to GBCT include predation by and/or hybridization with other trout species, and stochastic events connected to or caused by fire, excessive runoff, or mass wasting; (4) management efforts to address and mitigate the limited role of recreation in the Watershed have focused entirely on the motorized portion of the trail, when the nonmotorized trail receives heavy daily use and indeed represents some of the worst sites where steeply sloped and highly erodible soils enter the Creek at unimproved crossings.  However imperfect the past situation may have been, the simple fact is that Bear Creek is a stronghold, maybe the last stronghold, of GBCT.  This fact is even more ironic given the significant flooding and stochastic impacts in the area Fall, 2013, which are at the extreme end of the historical range of variability.  All of this information was summarized in the April, 2013 Notice of Intent to Sue (“NOI”) submitted by the Organizations and other parties, and we hereby restate the NOI and incorporate it by reference herein. 

This project is an important opportunity to move beyond the minimal procedural road bump of the Settlement Agreement toward enhanced, more desirable and even more trail network in and near the Bear Creek Watershed, while protecting and improving GBCT habitat and species sustainability.

II. The Forest Service Must Restore Sustainable Recreation Opportunities.

There is no reasonable justification to leave current “interim” motorized closures in place, particularly while the trails remain in place and receive substantial or illegal non-motorized use.  The stated basis of these closures has changed significantly over the term of the closure of the area.  The agency needs to address this key opportunity to “get it right” and avoid what should be unnecessary further litigation. Clearly defining a single starting point or problem to be addressed in the planning process and management is an important step and would provide a strong basis for the development of a management plan that addressed the species related issues and obtained significant public support.    Public support for the management of this issue will be critical in any planning moving forward.  Conversely, continuation of the “interim” status quo which maintains, or expands, asymmetrical but unjustifiable closures to solely motorized access will provide the Organizations with little choice but to become regulated squeaky wheel by commencing litigation.

There is nothing in the Settlement that requires the outcome of the process adopt or continue closure of any area or route to motorized access.  Once the limited and enumerated procedures have been completed, the agency must make a decision that complies with all applicable law, including provisions within the National Forest Management Act and regulations that provide for a diverse array of recreation, including motorized recreation.

III. A Defensible Trail Network Needs Several Key Components.

The Organizations wish to outline key aspects that should be fully analyzed and eventually included in a final decision.  The Organizations have been actively involved in working groups surrounding the management of this area and the related litigation and believe that many of the concerns addressed in these comments are also held by the large percentage of members of the working group.  The Organizations generally support selection of Alternative B as may be reflected or slightly modified as outlined herein. These factors and/or decision components include specification of some time line for implementation.  There is no discussion on resources that will be needed to implement the plan.  The FS has ignored the fact that there are several recreation organizations/clubs in the area that are ready to assist and work on trail reroute/trail reconstruction.  There also exist ample State Parks OHV funds and other sources of funding available for the FS to use to support management of the area for multiple use recreation. These factors have been either ignored or the FS has decided not to use these resources in the implementation of Alternative B.  When the snow melts from this winter season, there will be significant demand for the FS to allow recreation use of the trails that have been closed under the Settlement or related Forest Orders. The FS should make every effort possible to have a basic trail system for all user groups to use by June 1, 2014.

Various additional components could improve any chosen action.  The FS needs to implement a sufficient education and outreach program, featuring trail signage.  The current signage at the gate of the lower Goldcamp road, should state that it is a multi use road/trail.  Additionally, some form of seasonal closures of routes might be addressed.  The TPA and COHVCO are prepared to work with the FS on all of the above suggestions. 

IV.  High Drive Road must remain open.

The High Drive Road must remain open as this route is an important resource for the recreational usage of the area.  The  closing of High Drive Road to public access is not supported by the TPA/COHVCO and is not a recommended action in the Watershed Assessment that reflects the basis for the project.  This position regarding the future of the High Drive Road  in the Watershed Assessment is clearly stated as follows:

The speed, volume, composition, and distribution of traffic, as well as compatibility of vehicle class with road geometry and road surfacing were considered when developing the recommendations for High Drive. Existing information indicates no significant problems related to these factors with past use of the road; therefore, none is expected in the future, since the only changes recommended for High Drive would improve existing conditions in terms of drainage, road geometry, and other factors.

This road provides significant access to a major recreation area for the public of Colorado Springs and also provides significant access to mining claims and is the sole means of accessing the area for fire prevention activities.  As noted in the Watershed Assessment, access to the Bear Creek Watershed for fire prevention activities is very limited even with the High Drive Road remaining open.  The Watershed Assessment also notes that the High Drive road is a possible cultural resource worthy of inclusion on the national register.  The Organizations believe this issue must be resolved prior to determining the need for closure of the road.

The Organizations will also note that under the preferred Alternative, High Drive Road is to remain open for administrative usage.  This makes no sense as any adverse environmental impacts are heavily correlated with the existence of the road, not continuing travel on the road.  This situation mandates that some level of mitigation must occur even if the road were to remain open for only administrative usage.   Closing the road to the public while allowing these impacts to continue under the guise of “administrative use” will deepen the agency’s public relations problem with local visitors.  If this route is repaired for administrative usage it should be reopened to public usage. Alternatively,  if the road is closed to standard vehicle use, it should remain open as a trail for multi-use recreation.  If even limited OHV usage  is found to be unacceptable to the land managers or under §7 consultation, High Drive should be closed to all usage for the protection of the species.

V. The Agency Must Utilize Best Available Science.

The Settlement Agreement in the litigation has virtually no connection to sound science (or policy) and the agency must decisively repudiate any suggestion that the “science” behind the Settlement Agreement is driving this process or limiting the scope of tools available to manage threats to the species.  The Organizations are aware of the major discussions that have occurred with the federal agencies regarding the implications of the McGrath article and management of GBCT as a species.  The Organizations believe that this article may affect population estimates or distribution of native/pure GBCT but do not believe that the article will change the priority and scale of the threats to the Greenback.  The McGrath article has prompted numerous meetings within federal agencies, such as the meeting last year in Denver with USFWS, reflecting spirited discussions of this debate.  There is no clear management strategy which has yet evolved, and certainly not one that would justify removing motorcycles from a managed trail while leaving the remaining trail prism of nonmotorized routes is left untouched allowing for ongoing erosion at unimproved creek crossings traversed by dozens of hikers every day. 

In addition to these vigorous discussions there are well-established truths conveniently overlooked by CBD.  Foremost among them is that GBCT have effectively been pushed out of all “normal” water bodies lacking the unusual barriers of Bear Creek through the systematic efforts of the managers and biologists now clamoring to save them:

“Between 1885 and 1953 there were 41,014 documented fish stocking events in Colorado by state or federal agencies. The vast majority of these involved brook trout (Salvelinus fontinalis), rainbow trout (Oncorhynchus mykiss) and cutthroat trout (O. clarkii) (Fig. 3, supporting information). Remarkably, over 750 million fish of these three species were stocked from hatcheries into streams and lakes in Colorado over this period of time. Introductions of brook trout and rainbow trout probably had devastating effects on native cutthroat trout populations because brook trout are superior competitors and rainbow trout hybridize with cutthroat trout (Young & Harig 2001).”

The threats identified above are not a new issue for the management of the GBCT.  The June 2006 Conservation Strategy and Assessment  between FWS and the Forest Service provides 7 objectives and 11 strategies for the Colorado Cutthroat trout, all of which seek to now address the impacts of this stocking on the cutthroat trout that are more specifically addressed above.

Additionally , the 2009 FWS listing decision for GBCT provided a limited discussion regarding the three factors for effective trout habitat scope and types of habitat issues that are faced by cutthroat trout.  This report clearly states:

“Since completion of the 1998 Recovery Plan, extensive study has been devoted to determining how habitat quality and translocation success are related. Harig and Fausch (2002) developed a model, based on a comparative field study, which predicted that cold summer water temperature, narrow stream width, and lack of deep pools limited translocation success of the greenback. Young and Guenther-Gloss (2004) evaluated the model developed by Harig and Fausch (2002), and found a positive correlation between the three model components and greenback abundance.”

Decomposed granite is highly mobile and unstable, with or without recreational usage, and these stability issues are compounded by the steep slopes that are prevalent in the Bear Creek Watershed.  Ineffective or completely lacking management, primarily on the nonmotorized Trail 666, has accelerated erosion issues with the decomposed granite in the watershed.  Whether recreational use occurs or not is perhaps the most unimportant of possible impacts facing GBCT. Managing recreational usage as the primary threat will not generate significant benefit for the BGCT and will directly undermine any potential support for the management of this area.

There may be facets of GBCT management that are uncertain or need refinement, but the most significant threats can be intuitively grasped and are borne out in the best available science.  Hybridization, predation, and landscape-level erosion and water quality issues represent the essential challenges if we are to expand Bear Creek’s remnant GBCT population, which has thrived along a decades-old motorcycle trail, back into waters throughout Colorado.  While recreational usage is an issue, it is not the primary threat to the species as directly evidenced by the fact that the GBCT in Bear Creek have survived despite heavy recreational usage of the watershed.

VI. Recreational Travel Presents Limited Threats to GBCT.

Along with proper identification of the real threats to GBCT flows the obvious recognition that recreational travel is a trivial factor, which recognition is supported by a wide range of research on this issue.  The US Forest Service’s Rocky Mountain Research Station recently released extensive analysis of the effectiveness of travel management restrictions on addressing sensitive species issues in a general manner.  These conclusions specifically found that travel management was not effective in addressing many species related issues.  The Research Station conclusions specifically stated as follows:

Actions such as limiting grazing or closing OHV trails have historically been some of the primary tools used by land managers in southern Nevada to reduce the effects of anthropogenic stressors on species of conservation concern….. It is evident from this body of research that very little is known about the relative threats posed to, or the mitigation actions needed to protect, virtually any species, except perhaps the desert tortoise. Too often research jumps immediately to mitigation strategies without first determining what specific factors pose the greatest threats and are the most important to mitigate. In addition, the evaluation of potential threats typically focuses upon the usual anthropogenic suspects (e.g. OHVs, livestock grazing, invasive species, and climate change) without first carefully considering which factors are most likely to pose the greatest threats.
The Organizations would be remiss in not noting the relationship that this conclusion has with the management and litigation history with this proposal.  As is noted in other portions of these comments, roads and trail usage of cutthroat trout habitat has been specifically identified as a management tool that should be applied based on agency priorities and funding levels.  Management of sensitive trout species has occurred in habitat areas where there are extensive but properly managed routes and trails available and researchers have specifically found that:

 ”[s]tudy streams were accessible by road or trail and generally supported good to excellent habitat conditions.”

Given the explicit nature of this statement, clearly recreational usage and trout habitat designations are not mutually exclusive designations as are proposed.

These general management positions regarding the effectiveness of travel management in addressing sensitive and endangered species issues are supported by specific analysis of GBCT threats.  The 2009 FWS listing decision does identify trails usage as a “threat” but only a low level threat, as follows:

Low level threats include the ongoing negative effects of past mining operations on water quality; the impacts of grazing, logging, and road and trail construction and use on riparian habitat and streambanks, causing increased erosion, sediment deposition, and in turn elevated water temperatures and higher turbidity; and the co-occurrence of nonnative salmonids with greenback populations.

The 5 year listing decision specifically states that land managers have a significant amount of latitude in addressing these low level threats to the trout.  The listing decision recommended management of this issue as follows:

Regulatory and land management agencies have the ability to improve habitat conditions and eliminate or minimize these threats by…. by implementing conservation measures to avoid streamside habitat degradation while approving new grazing, logging, and road and trail construction proposals; by moving existing roads and trails away from streamside habitats and rehabilitating disturbed riparian habitats;….. All of these positive activities are ongoing throughout the subspecies’ range and are implemented based on agency priorities and funding levels on an annual basis.”

Clearly such management standards cannot be summarized as a high priority management tool or requiring closure of any habitat areas to recreational usage.

The Organizations will note that the article that was the basis for the lawsuit and subsequent proceedings provides an extensive analysis  of issues impacting GBCT.  At no point are roads and trails identified or discussed as a possible threat to GBCT in the Bear Creek watershed despite extensive on-site analysis of the Bear Creek area by researchers.  This article immediately moves to analysis and discussion of the restocking efforts that have been undertaken and the devastating effects that restocking over 750 million other species of trout that out compete the native fish have had throughout Colorado.  This threat analysis is consistent with the management documents that have been previously created by the USFWS and CPW for the management of the species. 

The Organizations do not question that placement and physical characteristics of some routes, coupled with the historical lack of management in the Bear Creek area, has contributed to habitat concerns that are now present in the planning area.  These concerns should certainly be addressed.   The Organizations are concerned that in the rush to address what has historically and repeatedly identified as a lower level threat to GBCT, many primary threats to the species have been overlooked.  The Organizations are very concerned that this oversight will be compounded by continuing wrangling and litigation, while true management actions fail to reach the ground and help GBCT.  This is not acceptable to the Organizations.

The Organizations are very concerned that routes may be lost due to an overabundance of caution in planning and attempts to use travel management as a scapegoat for the real threats to GBCT.  It has been the Organizations’ experience that once routes are closed, they are almost without exception never reopened regardless of later scientific developments that show the closures were not necessary and did not improve the conditions.  The agency needs to tackle the right problem, and quit being played by preservationists hoping to eliminate motorized use while laughing their way to the bank.  

VII. Recreational Closures Cannot be Defended in the Face of Greater Unmanaged Threats.

Many issues that have historically identified as major threats to GBCT, such as fire, predation and forest health, are not addressed in this plan.  The Organizations believe that addressing these well documented threats and issues is critical to establishing a viable population of GBCT in Colorado. These concerns are compounded by the admissions in the planning documents that fire protection for the Watershed is minimal at best, even with current levels of access.  The Organizations believe that reducing motorized access will simply be compounding a known threat to the GBCT, that has not been effectively managed to date.

If these issues are not addressed and the GBCT population continues to decline or maintain current levels even after this Project is implemented, further litigation from one or more sources will result, and further squander limited resources that are needed to save GBCT.  This should be avoided with the development of the most comprehensive plan possible. The Organizations are again raising this issue in the hope of developing a management plan that will not be impacted by §7 consultation and which will be complete enough to avoid further litigation on the management of the Bear Creek Watershed. The Organizations strongly believe that delays in the planning process should be avoided in order to insure that any new trail development and re-routes are implemented as soon as possible to restore recreational usage of the area. 

Throughout the Watershed Assessment numerous references are made to the overly dense nature of the forest canopy in the Bear Creek Watershed and the significant increases in woody material that have become present in Bear Creek over the last several years.  The Organizations would be remiss in not pointing out that numerous questions posed on this exact issue in the Question and Answer portions of the Watershed Assessment.  These are additional issues that a large body of research has concluded will significantly impact GBCT habitat and should not be overlooked in the management planning for the watershed.   The 2009 Conservation Report specifically identifies the impact of fire and insect infestation are both major contributors to woody matters concerns, stating:

“large wood (also known as coarse woody debris) plays a dominant role in many montane streams where greenback cutthroat trout persist. Deposition of large wood affects sediment scour and deposition, energy dissipation, and channel form (Montgomery et al. 2003), and creates pools, stores spawning gravels, affords overhead cover, and provides refuge during high flows…… Inputs of large wood are controlled by a variety of processes. Mass mortality of riparian stands from fire, insect damage, or wind is important sources.”
Forest fires have been identified as a major threat to habitat for the Colorado cutthroat trout, both during the fire itself and from the condition of riparian area afterwards.  The Forest Service species conservation report specifically states: 
“Lack of connectivity to other populations renders them vulnerable in the short term to extirpation from natural disturbances such as fire, post-fire debris torrents, or floods.”
Fire is specifically identified as a disturbance that results in trout habitat being unsuitable for extended time periods: 

“In particular, disturbances that dramatically alter channels or riparian zones—debris torrents…and severe fires—will change the discharge-sediment transport regime, re-set forest succession and large wood dynamics, and redistribute suitable and unsuitable habitat in a basin, sometimes for decades or centuries…”

This research notes the significant difference in impact to the cutthroat trout between conditions existing before the fire, during the fire and after the fire. The Organizations note that the analysis to date is completely void of any analysis of how the management of this chronological discussion will be addressed.

The Organizations vigorously assert that proper fire and forest health management of the planning area is an integral part of the planning process.   The Organizations are aware that a viable motorized transportation system is  an important component of fire suppression and forest health management.  The Organizations believe that the proposed management plan fails to adequately address these threats and how the planning will improve these high risk conditions to the GBCT.

VIII. Phased Project Components And A Timeline May Offer Advantages.

The Organizations are concerned that the limited scope of analysis in the plan or unforeseen circumstances in the future of plan development might become problematic during consultation.  The Organizations believe that developing a viable alternative that will not be significantly altered in §7 consultation is a critical component of maintaining multiple use access. The Organizations believe that a possible division of management action(s) into phases might allow for better prioritization and implementation, particularly if issues develop with one or more separable components.  The Organizations believe there are lower threat routes that could be developed with minimal impact to GBCT habitat that would also provide significant recreational opportunities.  The Organizations believe the plan should allow for the separation of certain lower threat routes from other issues more directly impacting the watershed and allow for these phases to move forward while more analysis of the more at risk routes is performed.

The Organizations also believe that a timeline for implementation of changes and opening of new routes is a critical component of the management planning that has not been addressed.   This  timeline would assist in distinguishing lower threat trails and areas that could be reopened at less expense and sooner than areas or trails that might need more planning and analysis due to possible impacts.

IX. Ample Funding and Partner Support Exists for Actively Managed Trails.

Throughout the Watershed Assessment and scoping letter numerous references are made to the limited funding that is available for the maintenance of roads and trails in the planning area.  The Organizations are sympathetic to this concern but would note that the Pike Peak Ranger district has received on-going funding from the CPW OHV grant program for a management crew, which provides on the ground resources for maintenance of roads and trails in the Ranger District along with an FPO, who assists with law enforcement and education of users who the good management crew comes into contact with during their trail maintenance activities. Funding for this management crew is given on a priority basis and is derived from fees received from Colorado OHV registrations and federal gas tax money for fuels burned by OHVs.  The motorized community is the only user group that pays such fees/taxes to provide management resources enjoyed by all trail users.

In addition to the management crew that is specifically provided by the OHV community for the maintenance of trails, the OHV community also provided funding for the analysis of management options in the planning area. The Organizations are committed to turning Bear Creek into a management success story.  Every allowable means of partnering and support will be provided.  Whatever concerns the Forest Service may have about managing Bear Creek, funding and management resources should not be a reason to influence management choices.

X. Continuing Closure is Not A Solution.

The FS has made a significant error in its unequal description and enforcement of the closure orders of Bear Creek.  On any day of the week, the Bear Creek trails (666/667) are being heavily used by selected recreation groups.  Only the motorcycle recreationists have abided by the FS closure.  The FS (for various reasons) has ignored the continued violation of their closure order.  The Organizations will not longer tolerate this abdication of agency authority.  All recreation user groups must be treated similarly.

The Organizations support a robust and well-designed series of trails, including meaningful re-routed trails, to allow more sustainable yet more enjoyable use of the project area.  Under this approach, various illegal or inconsistent situations must be addressed.  Closing Trail 667 but allowing Trail 666 to remain open (even for a short section) is a prime example cannot be defended and is a transparent effort to eliminate motorized access without any defensible benefit to resources.  If Alternative B is going to be implanted, the entire Trail 666 should be closed to all user groups.
Additionally, the Organizations are concerned with the possible ramifications of the agency legitimizing the “bandit”-created and unauthorized “Buck Horn” trail.  There are instances where user-created routes may make an appropriate addition to a route system, but this is not one of them.  If this route is seriously being considered for acceptance into the FS trail system, it should be designated for all uses, including motorized travel.  To allow a user group to illegally create a trail and then have it managed for their exclusive use would set a horrible precedent and further enflame the inequity of the current situation. 

XII. Conclusion.

The Organizations support Alternative B of the Proposal but believe there are significant modifications to the alternative that must be included to improve this alternative.  The Organizations are very concerned that many primary threats to the GBCT have not been addressed in the proposal for reasons that are not clear.   The Organizations believe proper analysis of these issues in planning will avoid further litigation and allow for the continued recreational access to the area in a timely manner.   If these primary threats to the GBCT are not addressed and management continues to focus on secondary threats to the species, the Organizations believe the Proposal will simply be back in Court in the near future. This should be avoided at all costs as litigation does  not benefit the GBCT and delays recreational usage of the area. 

The Organizations would welcome a discussion of these opportunities at your convenience.  Please feel free to contact  Don Riggle at 725 Palomar Lane, Colorado Springs, 80906, Cell 719 338 4106

Scott Jones, Esq.
COHVCO Co-Chairman
TPA Authorized Representative
John Bonngiovanni
COHVCO Chairman

D.E. Riggle, Director of Operations
Trail Preservation Alliance