January 1, 2015
Derek Padilla, District Ranger Dolores Ranger District
29211 Highway 184
Dolores, CO 81323
January 30, 2015
RE: Rico-West Dolores Roads and Trails Travel Management; Comments to Proposed Action
Dear Ranger Padilla and ID Team:
We submit the following comments regarding the Proposed Action, Travel Management for the Rico-West Dolores Roads and Trails, December, 2014 (the “PA”). We submit these comments on behalf of our clients the Trails Preservation Alliance (“TPA”), Colorado Off Highway Vehicle Coalition (“COHVCO”), Public Access Preservation Association (“PAPA”), San Juan Trail Riders (“SJTR”), and the Blue Ribbon Coalition (“BRC”). We appreciate the opportunity to provide comments and to work wih the Forest Service to ensure that the public is afforded appropriate continuing motorized recreation and access opportunities in the Rico-West Dolores Area (“RWD”).
These comments are supplemental to, and independent of, any submitted separately by the above-named organizations, or any of their members. The agency shall independently evaluate and respond to all such comments. An effective response to such comments will be essential to the long-term success of travel management in the RWD. Please direct any correspondence regarding these comments to Paul Turcke via the above-listed contact information or pat@ msbtlaw.com.
We are disappointed by the PA. We have expended meaningful resources alongside the Forest Service defending against the unjustified and unnecessarily elaborate claims in Backcountry Hunters and Anglers, Colorado Chapter v. U.S. Forest Service, Case No. 1l-CV- 3139 (D.Colo.) and Nos. 13-1216 & 14-1137 (10th Cir.) (the “CBHA litigation”). The singular plaintiff in that litigation does not represent a significant constituency of users in the RWD or beyond . Notably absent from that litigation has been an array of “first tier” environmental groups or legal counsel, as is frequently seen in cases of this nature that are a high priority to the “nonmotorized” user community. Rather, this is an aberrational lawsuit that has been aggressively, yet to this point unsuccessfully, advanced by an outlier group. We applaud the efforts of the Forest Service, and its legal counsel, in all aspects of the response to the CBHA litigation.
Despite the foregoing, the PA contains significant and unjustified concessions that cannot be viewed as anything other than capitulation to the plaintiffs in the CBHA litigation, or their closely-aligned special interests such as the for-profit, and world renown, operations of the Dunton Hot Springs LLC. The restrictions in the PA, such as seasonal closures for aggressively hunted ungulate populations, or nonmotorized buffers around the Town of Rico, stand as glaring reversals of prior agency determinations and/or closely parallel specific requests from anti motorized advocates. Whether intentional or not, the Forest Service sends the message through this PA that the agency will capitulate to litigation, and more aggressive litigation will prompt greater capitulation by the agency. We ask the agency to carefully reconsider this message.
There are lawsuits and then there are lawsuits. We are not so naYve as to ignore the fact that some lawsuits are well-conceived and well-executed, and raise substantial procedural/resource concerns while representing meaningful risk to orderly agency operations. Without downplaying the importance of its opportunities or resources, the RWD does not present such delicate challenges. The alleged bases for change, such as elk populations or claims of user conflict, are among “bottom of the barrel” tools in the bucket of anti-access advocates. The RWD effort is not driven by listed, or even sensitive, species concerns. Elk in the RWD are thriving, and if anything are hunted too successfully by too many humans. The RWD, San Juan Forest, and State of Colorado offer world-class opportunities for nonmotorized recreation and adventure. The RWD project is largely an exercise in social engineering, not management of resources facing meaningful risk.
Closely associated with the litigation is the fact that this effort follows from the agency’s self-imposed remand of the 2009 TMP. We interpret this remand, based on our own experience but more importantly on the agency’s representations in the CBHA litigation, as being driven by procedural concerns. Inother words, there is nothing that was substantially wrong with the on the-ground components of the 2009 decision, so much as the manner in which they were packaged.
Fortunately, this process is at its earliest stages. There is ample time to steer it back on course. It may provide procedural cover to include components of the PA within the range of alternatives, but it is essential that the Forest Service create an alternative that will modify or eliminate certain elements of the PA, and reinstate some of the well-conceived elements of the 2009 TMP. A well-designed process can maintain the few remaining, highly desirable motorized recreation opportunities in the RWD while highlighting, and enhancing, the RWD’s similarly desirable nonmotorized recreation opportunities. There is ample room for diverse recreation in the RWD.
OVERVIEW ON TRAVEL PLANNING
This project addresses the multiple purposes of revisiting travel planning for the RWD following remand of the 2009 TMP and adoption of the 2013 Forest Plan, consistent with national policy articulated in the 2005 Travel Management Rule (“TMR”) (70 Fed. Reg. 68264 et seq., Nov. 9, 2005; 36 CFR Parts 212, 251, 261 and 295). It is important to note at the outset that the TMR is not a “closure” directive as portrayed by some preservationist special interests.
Then-Chief Dale Bosworth stated upon release of the TMR that “and Managers will use the new rule to continue to work with motorized sports enthusiasts, conservations, state and local officials and others to provide responsible motorized recreational experiences in national forests and grasslands for the long run.” USDA Forest Service, News Releases, “USDA Releases Final Rule for Motorized Recreation in National Forests & Grasslands,” dated November 2, 2005. “A managed system of roads, trails and area designated for motor vehicle use will better protect natural and cultural resources, address use conflicts, and secure sustainable opportunities for public enjoyment of national forests and grasslands.” Travel Management Rule Final Communication Plan, November 2, 2005, p.5. In fact, “it is Forest Service Policy to provide to diversity of road and trail opportunities for experiencing a variety of environments and modes of travel consistent with the National Forest recreation role and land capability.” Forest Service Manual 2353.03(2); see also, 70 Fed. Reg. 68264 (“motor vehicles are a legitimate and appropriate way for people to enjoy their National Forests in the right places and with the proper management.”). The Forest Service should be planning for a managed system, and working with all groups, including OHV enthusiasts, in order to comply with not only the agency’s own directives and the Travel Management Rule, but the policies behind the Rule.
In summary, the TMR is designed to address the threat of “unmanaged recreation” and to put the agency in a position to be pro-active in addressing what is now a dominant use of the National Forest System. Properly understood, the TMR is not intended to reflect some broad agency policy against motorized travel, or to wipe the slate clean of appropriate access that has existed for decades within Forest System units. The TMR is not a closure direction, but a means for the agency to make improvements to better ensure sustainable travel networks on Forest Service lands.
GENERAL COMMENT THEMES
There are several key elements within the PA, or issues implicated by it, that we wish to stress at the scoping phase. Again, the time to address and properly plan for these issues is now.
(1) The Seasonal Motorized Travel Closure is Excessive and Unjustified.
The Forest Service is proposing to restrict access on single-track motorcycle trails from September 9 through June 30, allowing motorcycle access only from July 1 to September 8. PA at 5. The alleged justifications for this closure are concerns expressed by “some hunters …that motor noise on the single track trails disturbs their hunting experience.” Id. Second, the agency claims the Forest Plan “emphasizes providing for elk production habitat during the time of year when elk are calving.” Id. There is not even a rational basis to defend these purported bases for the dramatic seasonal restrictions proposed.
Starting with the second justification, there is no rational basis to suggest that elk calving or other habitat needs are not amply met in the RWD. To now assert differently would have the Forest Service dramatically contradicting its sworn testimony in the CBHA litigation:
It is generally accepted big game require a minimum functional security area size of 250 acres. The spaces between the current designated road and trail system provide a total of 157,568 acres of security areas spread across the Rico-West area (the smallest is around 450 acres and the average size is around 5.000 acres). In my professional option the movement of big game populations for seasonal migration and the use of production and foraging areas is not restrained by the 14 [motorcycle] trails, based on the size of the land spaces in between that provide for security.
Declaration oflvan Messinger at 6, Docket No. 34-7, CBHA v. USFS, Case No. 11-CV-3139 (D.Colo.) (attached as Exhibit “A” hereto). Further, the PA fails to recognize or discuss the fact that concerns about elk habitat security focus on human disturbance, not solely motorized disturbance. Again, as Mr. Messinger testified, “[i]f motorcycle use was removed, the trails would continue to be used by hikers, horseback riders and mountain bikers so there would still be a disturbance to wildlife from humans.” Id. at 7.
Our clients have carefully scrutinized the wildlife-based rationale for seasonal restrictions, including working with our wildlife biologist consultant, John Monarch. We incorporate Mr. Monarch’s comments by reference herein. In short, Mr. Monarch breaks the elk equation into several key elements. The first important element is that there is essentially no “problem” that needs fixing with RWD (or larger DAU 24) elk herds. Even if there was some issue, the USPS has not, and cannot, demonstrate that long-existing single-track motorcycle riding is a causative factor that can be rationally singled out for restrictions. We ask the Forest Service to carefully review the points made by Mr. Monarch and consider whether it will serve the resource, the user community, or the agencies well to continue on the rationale outlined in the PA.
The concerns about ill-defined concerns from “some hunters” are an even flimsier justification for closing these trails for nearly ten months of the year. CPW manages elk hunting with a decided emphasis on maximizing hunter opportunity, and perhaps not coincidentally, hunting-derived revenue. The RWD game management units are not controlled hunting units and are not managed for low tag numbers and the related relative solitude and “high quality” hunting experience. Elk hunters in the RWD, like much of Colorado, should expect to encounter numerous other hunters, many of whom will be employing a motorized means of conveyance, which may often display registration from outside the State of Colorado. For the Forest Service to claim it is responding to a need to create “higher quality” elk hunting experiences in the RWD by instituting motorized closures is well outside the range of credible agency behavior that we see in travel planning.
It is essential that the Forest Service immediately rethink the PA’s emphasis and configuration of seasonal restrictions. There is no defensible justification for these restrictions, and our clients will oppose them through any all available procedures.
(2) It is Inappropriate to Create a non-motorized Buffer around the Town of Rico.
The PA reflects an apparent Forest Service determination that the Town of Rico has requested a 3 mile “motor free” zone around its borders. We question whether the Town has properly formalized this request, and if so it is at the urging of special interests like the Rico Alpine Society or business owners hoping to expand or create their own markets catering to non-motorized devotees.
Our clients have attempted to create and maintain a mutually respectful and beneficial relationship with both residents and “officials” in the Town of Rico. We are not aware that the Town has conducted a meaningful public process to formulate a position on the PA or RWD planning. To the extent there is some suggestion of such an effort, it predates the 2009 TMP and is of questionable present validity.
We can appreciate that backcountry communities in Colorado desire a diversity of recreational experiences, and that this includes meaningful opportunities for non-motorized recreation, including both short loops or “day trips” as well as “staging” or access corridors for more extended backcountry experiences. However, these opportunities do not necessitate elimination of motorized access. The Forest Service should carefully determine the array of Rico routes that can support a robust and diverse transportation network and recreation experience, including motorized access/recreation.
(3) Subjective User Conflict is Not a Defensible Basis for Motorized Closures.
There is some indication the Forest Service is relying on subjective “user conflict” to justify certain trail closures. There is no basis in logic or the law to do this. Our organizations have spent decades fighting this issue, and we will do so here. “User conflict” is intentionally manufactured by anti-access advocates. The RWD generally contains well designed and long traveled trails that do not have public safety or other true conflicts between uses. The entire RWD is “open” to non-motorized travel, there is a simple answer for those who wish to avoid motorized traffic – stay away from the handful of motorized trails.
While anti-access forces still attempt to recirculate a handful of long-ago rulings on this topic, the fact is that “user conflict” claims have been recently and forcefully rejected by the courts. In Wild Wilderness v. Allen, 12 F.Supp .3d 1309, 1330 (D.Or. 2014), the court found that “tradeoffs between motorized and non-motorized users have already occurred and will continue in the future. The record demonstrates that the Forest Service is continuing a long, inclusive process to manage winter recreation use on the Cascade Lakes Highway.” The court’s decision may be viewed at:
A more recent decision in the 10th Circuit upheld the Forest Service designation of long existing motorized access along the Albany Trail against preservationist claims of user conflict. Biodiversity Conservation Alliance v. U.S. Forest Service, 765 F.3d 1264, 1275 (10th Cir. 2014). This motorized designation was upheld, even where the Albany Trail traverses an Inventoried Roadless Area which anti-access advocates regularly seek to imbue with quasi-Wilderness status.
We urge the Forest Service to understand the full extent of its discretionary authority, and exercise that authority in focusing on a management approach in the same spirit as the Kapka Butte and Albany Trail projects.
(4) The Remaining RWD Motorized Trails Have Received Sustainable Motorized Travel for Decades, and Ample non-motorized Recreation Opportunities Abound.
The routes that remain for motorized access in the RWD have receive motorized access since the first motorized vehicles could first access them. Many others have been closed. The Forest Service featured this fact in defending the lawsuit, acknowledging that the currently designated motorized routes in the RWD “are generally 18 inches or less in width and have historically been open to shared uses of hiking, horse-back riding, mountain biking, and motorcycle use for decades.” Declaration of Mark W. Stiles at 10, Docket No. 34-2, CBHA v. USFS, Case No. 11-CV-3139 (D.Colo .)(attached as Exhibit “B” hereto).
The RWD and Colorado are a mecca for Wilderness and non-motorized recreation opportunity. If users are frustrated by the existence of continuing motorized use on currently designated routes in the RWD, it is because they have not become properly informed about the management prescriptions in the area and/or have formed unrealistic expectations centered on their own individual desires. The agency has taken numerous measures “to inform and educate trail users of what to expect on a shared-use trail” and agency staff “have heard from the public of many examples of courteous recreation behavior across all types of use…[and] have also heard of examples of poor share the trail behavior across all types of uses.” Declaration of Penelope K. Wu at 7, Docket No. 34-5, CBHA v. USFS, Case No. 11-CV-3139 (D.Colo.)(attached as Exhibit “C” hereto). Ms. Wu insightfully opined that negative impacts attributed to motorcycle noise are “in the ‘ear of the listener’ in terms of tolerance or acceptance of vehicle noise” and that “[n]oise is acceptable in an area managed for multiple uses including motorcycles and is typical of other motorized trails on the San Juan National Forest.” Id. at 8. On the National Forest System and our broader culture, we cannot and should not capitulate to the uninformed, subjective desires of a small minority of chronically dissatisfied individuals. If the Forest Service wishes to breed a culture of discontent, conflict and litigation, then the PA represents the perfect next step.
(5) The Agency Duty to “Minimize” Need Not Unduly Restrict Remaining Access.
It is both legally and pragmatically essential that the agency use its discretionary authority to formally establish a sustainable, yet functional, network of designated routes. It is likely that various preservationist and anti-access special interests will incant a litany of alleged legal violations designed to stymie adoption of or any meaningful network of vehicle routes in the project area. They are certainly entitled to voice their opinions, but the agency should carefully evaluate any such claims and realize they are often thinly veiled efforts to advance an agenda that includes significantly reducing, if not eliminating, recreational use of vehicles in the National Forest System. The agency is empowered to reject these anti-access positions through correct interpretation of the law, as reflected in various recent court decisions.
A favored line of recent attack has been through the “minimization criteria.” The minimization criteria have been around since 1972 and long received only passing interest, but have acquired teeth largely through recent litigation involving similar regulatory language addressing management of the National Forest System. See, 36 CFR § 212.55(b) (requiring agency to “consider effects…with the objective of minimizing” a variety of factors including damage to soil, watershed, vegetation and other forest resources; harassment of wildlife and significant disruption of wildlife habitats; conflicts between motor vehicle and other uses; and conflicts among different classes of motor vehicle uses). In particular, this renewed interest springs in large part from the decision by a U.S. Magistrate declaring invalid the Salmon Challis NF travel decision. This decision was issued in 2011, and is published as Idaho Conservation League v. Guzman, 766 F.Supp.2d 1056 (D.Idaho 2011). In short, that decision rejected the Forest Service effort to characterize the minimization criteria as providing broad guidance (“consider with objective of minimizing”) and interpreted the language as requiring the agency to show, in its NEPA analysis, how it applied the minimization factors in selecting from decision options for specific routes. There have been several more decisions that have followed similar reasoning, which have only come from federal district courts. The 9th Circuit has on three (3) occasions heard cases involving the OHV “minimization criteria” and has declined to follow the Guzman court’s reasoning in two of those cases, with the third still under advisement following argument on November 7, 2013.
The agency has broad discretion applying the minimization criteria and is certainly not obligated to restrict motorized access, particularly in response to the subjective complaints or other “evidence” provided by self-interested non-motorized use advocates. Several decisions reflect this important truth, most notably the two (2) 9th Circuit decisions on the topic, both issued in unpublished memorandum dispositions. See, The Pryors Coalition v. Weldon, 803 F.Supp.2d 1184 CD.Mont. 2011), aff’d , 551 Fed.Appx. 426 (9th Cir. 2014); The Wilderness Soc’y v. BLM , 822 F.Supp.2d 933, aff’d , 526 Fed.Appx. 790 (9th Cir. 2013). Relatedly, non-motorized recreationists have no inherent “right” to exclusive use, or any use, that exceeds or trumps those of other recreationists. See, Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1994) (rejecting challenge to NPS management plan restrictions on bike access). The agency cannot be strong-armed into motorized use closures or restrictions , and a well-reasoned and documented balance affording reasonable opportunities to a spectrum of recreational uses will be upheld by the courts. Our clients were among the parties to the Pryors case, and a copy of the Circuit’s decision can be viewed at:
The fact is that “minimization” has not recently been a productive line of argument for anti-access advocates, and for several years the courts have been ruling in favor of the Forest Service and other agencies on these issues. There are no recent litigation developments that should cause a different outcome in the RWD. Decades of Wilderness designation and closures have already “minimized” the impacts of motorized recreation in the RWD. The Forest Service should avoid capitulating to false cries for new closures based on a myopic interpretation of the minimization duty.
SPECIFIC ROUTE COMMENTS
There are many route-specific elements of the PA that should be modified. This process is an excellent opportunity for the Forest Service to establish a well-designed, diverse road and trail system that can meet user needs while properly shaping their behavior long into the future. Our clients and their members will provide extensive and detailed input on these issues, and we will simply summarize some of their key observations.
(A) Specific Route Proposals in the PA Should be Modified.
The project area is subdivided into 9 different areas. The proposals are acceptable for some areas. The areas/routes that need changes are briefly described below:
Area 2 – Winter Trail 202, West Fall 640 and East Fall 646 should remain open in their current motorized designation. The Winter Trail reroute should be non-motorized, and an additional non-motorized trail should be constructed between this reroute and the Burro Ridge Trailhead. This offers a “motor free” experience and access to the Lizard Head Wilderness.
Area 3 – Spring Creek 627, Morrison 610, and Loading Pen 738 should be designated as motorized single-track.
Area 4 – Wildcat 207 should not be eliminated but rather extended southward to the railroad right of way. One or both sections of the Ryman Trail should be single-track motorized and connect Calico South 211 and Priest Gulch 645. Burnett Creek 641 should be designated as motorized single-track.
Area 5 – Sackrider 6 should remain a motorized section of the Calico 208 trail. Any non-motorized redesignation of Horse Creek 626 should be offset by addition of replacement motorized trail miles somewhere in the system.
Area 9 – The lower Bear Creek Trail 145 should not be non-motorized, but we would accept this redesignation if a bypass or suitable replacement motorized trail miles could be added.
(B) Certain Components of the 2009 TMP Should be Reinstated.
In addition to the specific routes described above, there are elements of the 2009 TMP that appear to have been unnecessarily or unwisely removed from the PA. Some of these are discussed in (A) above, but at the risk of redundancy we wish to identify the list of these 2009 TMP routes that appear to have been omitted from the PA.
Specifically, we are concerned about the following elements:
Priest Gulch Cut-Off
West Fall Creek
East Fall Creek
Sockrider section of Callico Trail
Spring Creek Extension to FS 692
Burnett Creek and Trailhead
We sincerely hope the Forest Service does not carry forth the primary themes of the PA. Doing so will insure continuing dispute and litigation over the RWD trails. Instead, the Forest Service has the opportunity to await the final resolution of the CBHA litigation, to make modifications along the lines proposed by our clients, and to bring consistency and closure to RWD travel planning.
MOORE SMTIB BUXTON & TURCKE, CHTD.
Download the PDF (above) to see the letter in it’s entirety including the Exhibits.