Author Archive | Administrator

Buena Vista Trail Proposal

pdficon_large.gif
BLM Royal Gorge Field Office
Att: Linda Skinner
3028 East Main Street
Canyon City, Co 81212

RE: Buena Vista Trail Proposal

Dear Ms. Skinner:
Please accept this correspondence as the comments of the above Organizations with regard to the Buena Vista Trail Proposal. At the landscape level, the Organizations vigorously support two foundational principals: 1. that development of multiple use trails; and 2.trails should not be developed only to benefit a small user group. These foundational principals cause serious concerns with the specific trail development allocation in the Buena Vista Proposal. The Organizations vigorously support the development of multiple use single track trails in the Proposal, more specifically the Sleeping Indian trail. While we support the multiple use trails there is serious concern with both the basic need and direction that has been adopted for the management of other routes in the Proposal. There simply needs to be a far more balanced allocation of routes being developed. This balance can be achieved by allowing multiple use on routes proposed or by working with local motorized users to determine where additional trails would be appropriate.

The development of what is essentially an advanced mountain bike trail network is very concerning in the Proposal given the tenuous position of funding for all recreational activities on federal lands, the heavy usage of the Fourmile area already, limited benefit from the trail network. The Organizations would note that single track trail is some of the most sought after recreational opportunities and also some of the hardest to find in Colorado due to very limited amounts being available. It is the Organizations position that if trails are developed in the Proposal area, they must be overwhelmingly multiple use, as there is simply insufficient funding available to allow each user group to have a separate trail system on public lands and such a model does not reflect the multiple use model in place on public lands.

Prior to addressing the Proposal, we believe a brief summary of each Organization is needed. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization the 150,000 registered 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 Trail Preservation Alliance (“TPA”) is a 100 percent volunteer organization whose intention is to be a viable partner, 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 of the sport and takes the necessary action to insure that the USFS and BLM allocate for trail riding to receive a fair and equitable percentage of access to public lands. For purposes of this document COHVCO and TPA are identified as “the Organizations”.

1. History.

The Organizations are very familiar with the recreational opportunities that are provided by the Fourmile area and the heavy utilization of these opportunities that is currently being experienced for all recreational activities. The Proposal references the significant increases in all types of usage for this area in the introduction and this increased visitation would be consistent with our experiences. It has also been our experience that usage of this area is from a widely diverse group of users including the OHV community, those camping, fishing, picnicking and generally relaxing. It has been the Organizations experience that the Fourmile is an overwhelmingly multiple use area. The Organizations must also state that it has been our experience that while there are clearly mountain biking visitors to the Fourmile area, this visitation is certainly not disproportionate to other usages of the area. It has also been our experience that most of the mountain bikers utilizing the Fourmile area are families and at best intermediate riders. The Organizations are very concerned that while the expanded usage of the area for a very small user group is identified, the Proposal simply never addresses how the basic management issues is the Fourmile area will be improved when the Proposal is implemented. The Organizations submit that any project in this area must benefit all users as this is truly a multiple use area.

The Organizations must express a high level of frustration at both the lack of funding for development and operation of the trail network. Merely drawing routes on a map does not make a successful trail network in the long run. The Organizations are further concerned that the desires of a small user group have been placed well ahead of other long term partners who have directly funded and supported the greater good of all recreational usage in Colorado for decades. The Organizations have been highly supportive of a wide range of programs and efforts through the CPW trails and OHV grant programs, such as the law enforcement program and good management crews, which directly fund more than $2,000,000 per year to land managers to benefit all recreational efforts. The multiple use organizations have also been annually identified as the single largest source of volunteer labor for trail maintenance.

While the Organizations are aware these efforts are targeting all recreational usage, the Organizations would expect that all other user groups would be brought into alignment with the concept of greater good of recreation in their proposals. If one partner is forced to pay the lion’s share of the bills and others are allowed to develop proposals that exclude the other partner, that is simply not a partnership. This type of alignment simply has not been provided in this Proposal given the overwhelming benefit of the Proposal to a single user group.

2a. Funding must be identified for development and management of the proposed trail network.

The Organizations are aware that there is a funding crisis in terms of recreational activities on public lands and the motorized community is the only user group that has partnered with federal land managers to attempt to offset these issues. These efforts have resulted in a program that is approaching an annual budget of $8 million annually that overwhelmingly benefits federal land managers from the registration of OHVs. The motorized community has also been consistently identified as the largest source of volunteer labor for maintenance and development of trails in Colorado. No other user group has approached this type of active support for recreation. Given the current funding situation for federal land managers, the Organizations must express serious concerns when funding for both development and maintenance for all facets of any Proposal is not clearly identified.

The lack of funding for trail systems and recreational usage of public lands is an issue that has been extensively addressed in recent years. A GAO review of the USFS has identified that there is a $314 million dollar national backlog on trail maintenance on USFS lands. 1 The GAO also concluded that only 25% of the existing trail network is financially sustainable. While this report specifically identified the major role that OHV grant programs play in mitigating this issue, the report specifically found that a lack of funding for non-motorized trails is a major contributor to the issue. While the GAO report does involve analysis of issues not relevant to the current proposal, like trail maintenance in Wilderness, the basic determination of the report must not be overlooked. Routes that are exclusively non-motorized are entirely unsustainable financially and the OHV communities efforts in maintaining multiple use routes is an important tool in addressing this issue. It is the Organizations position that the current proposal exacerbates a know and unresolved problem and fails to integrate a known and effective funding source. This simply makes no sense.

As a result of this experience, the Organizations are able to say with a high degree of confidence that the current scope of work will cost $100,000 to $200,000 to properly develop and manage. There are many costs of basic operation of a trail network that simply are not addressed. The Organizations submit that the proposal will need basic ongoing trash service, parking lots and toilet facilities in order to provide a quality recreational experience. The Organizations are aware that the development of a basic pit toilet facility, costs $10,000 to $15,000 to plan and develop for each location. These types of basic costs significantly contribute to the backlog of maintenance on trails on federal lands, and these costs simply have never been addressed in the EA. It has been our experience that volunteers are often not drawn to these basic daily operational type opportunities and are often poorly suited to perform these services. Either contractors or federal employees must be relied on to perform these services. These costs simply must be accounted for. The Organizations have worked hard to address these types of costs but this support can only be provided for trail networks that are open to the multiple use community.

In addition to the GAO report, the Organizations are also aware that many other user groups have identified the complete lack of funding for basic maintenance that is currently facing trails in Colorado. The Colorado 14ers group recently issued a statewide report card that gave front range trails to 14,000 ft. peaks a “D” in terms of maintenance. 2 While volunteers have worked hard on these trails, this report again highlights the need for ongoing funding to support these trail networks. If existing non-motorized routes are not being maintained with volunteers, the Organizations must question why this model would be allowed to be the basis for new trail development. The basic model appears to be broken. The Organizations submit that making these routes multiple use would expand volunteer support and directly make significant funding available to perform basic maintenance and off-set operational expenses.

2b. Soils in the Fourmile area are decomposed granite and will need ongoing maintenance.

The Organizations are very familiar with the Fourmile area and are aware that most of the soil is made up of decomposed granite. The Organizations are aware that even the best designed trails are going to need ongoing maintenance in these soil conditions.

3a. The purpose and need of the Proposal does not reflect limited demand for bicycle routes on federal public lands.

Compounding the Organizations concerns about a lack of funding for the project is the fact that the Proposal provides a very grim picture when looked at purely from a cost/benefit analysis for any money that might be available from the agency. The Organizations must question that even if agency funding is identified for the Proposal, is the development of an extensive trail network for the benefit of a very small user group the best allocation of the funding. We submit that it is not as the benefits of the Proposal are very limited for most users as the overwhelming percentage of visitors to the Fourmile area are multiple users and not dedicated mountain bikers.

The Organizations are aware that the USFS has an active monitoring system in place for the monitoring of all types of recreational visitation to public lands. This information is now highly relevant to adjacent BLM lands as USFS and BLM have adopted an interagency memorandum adopting NVUM as the official visitation measure on both USFS and BLM lands.3 A review of this information at the regional level reveals that ALL bicycle usage is 10th on the list of why people visit federal lands. The 2014 regional level NVUM research provides the following breakdown of visitation to federal public lands:

20151101buenavista-visits.jpg
4

Given that all bicycle usage is 10th on the regional list of reasons people visit federal public lands, the basic direction of the Proposal seeking to primarily benefit a small user group becomes an immediate cause for concern as almost every other user group ahead of bicycle users on the visitation scale is excluded from using the proposed trail network. This makes any cost benefit or compelling need for single use trails difficult to justify as research indicates there are not a lot of users seeking these opportunities in the region.
The Organizations submit that a major reason for the low visitation of bicycle users to federal public lands is that many local communities have developed high quality bicycle based recreational opportunities with greenway trails and urban corridor based trail systems. While local communities have been very effective in developing these bicycle based opportunities, the desired recreational experiences of many other users groups simply do not match well with recreational opportunities in these urban interface areas. Given the large opportunity for this type of recreation already in place, many of the public simply own bicycles that are not able or not well suited to be ridden off a paved or smooth hard surface trail. Many of the public simply have limited desire to ride in the backcountry due to their desire to ride with family members making opportunities on federal lands a poor match to the recreational opportunities they are seeking.

As the Organizations have already identified, there is limited demand for bicycle opportunities on federal public lands in the region, which will result in limited benefit from a single user group trail network. When more localized data is reviewed, the NVUM research clearly indicates that demand for bicycle recreation is lower on the Pike/San Isabel NF that it is on the regional level.

20151101buenavista-image2.jpg
5
Given the comparatively low demand for bicycle trails on federal public lands, the Organizations vigorously assert that the current allocation of routes simply cannot be defended when it is looked at from a cost benefit analysis. The Organizations submit that the purpose and need of the project must be realigned to reflect the multiple use nature of the area and to return a positive cost benefit analysis of any agency money that might be allocated to the project. Research simply does not support the current allocation of routes.

3b. Benefits from the Proposal will be further limited by the advanced nature of the trails to be developed.

The possible benefit of the Proposal to the general public becomes more of a concern when the nature of the trails to be developed are reviewed. Many of the public own bicycles and frequently use them for recreation, but most are far from a more or most advanced type of rider. While most bicycle users are intermediate at best, the overwhelming portion of the trails to be constructed are “more advanced” or “most advanced”. This means that the overwhelming portion of the public will simply be unable or not equipped to ever traverse these routes. Again this small target market gives the Organizations significant concerns that any funding that might be directed towards the project would result in very limited benefits. Given the huge demand for opportunities in the Fourmile area and budget issues facing federal land managers, such an allocation of resources should be a concern. Any federal funding must be applied in a manner that benefits the most users. It is the Organizations position that a multiple use trail network in the area would significantly alter the cost benefit analysis in favor of developing a network.

3c. A lack of access is a major barrier to Hunters in the Fourmile area as well.

The National Shooting Sports Foundation recently released an extensive study on the factors limiting persons from entering or continuing to participate in hunting related activities. The NSSF report specifically concluded a lack of motorized access is the single most important factor for agency influence, stating as follows:

“Difficulty with access to lands for hunting has become not just a point of frustration, but a very real barrier to recruiting and retaining sportsmen. Indeed, access is the most important factor associated with hunting participation that is not a time-related or demographic factor—in other words, the most important factor over which agencies and organizations can have an important influence (Responsive Management/NSSF, 2008a).”6

The NSSF report also specifically identified that motorized access is largest mode of hunting transportation, as the following percentages of hunters relied on the following modes of transportation:

1. Car & truck 70%
2. Walking 51%
3. ATVs 16%7

The NSSF report further found that 56% of hunters experienced hunting related restrictions due to limitations on motorized access and that 54% of hunters states that closures of public lands by government agencies. Similar sentiments to the NSSF report are echoed by the CPW herd management plans for both deer and elk in the planning areas, which identify that continued limitations on access due to private land development are a major concern. 8

These are issues that could be resolved in the Proposal area by addressing true multiple use recreational access issues, rather than advancing a single user group. The Organizations would note that any bike related travel means failed to make this list of hunter related transportation devices. The Organizations would note that mountain biking only routes will result in a minimal benefit to the hunting community, as these routes would be very difficult to retrieve game across.

4a. Multiple use trails are the true economic driver.

BLM scoping documents clearly identify that economic benefits to the Buena Vista area are also an objective of the Proposal. Again the Organizations must question how the Proposal relates to this objective as the Organizations are intimately aware that for an activity to be an economic driver, the resource must be utilized by a large number of visitors and these visitors must spend money. The Organizations are very concerned that accurate economic analysis be relied on for the proposal as resources that might be otherwise available for multiple use recreation are being diverted towards the Proposal in a manner that simply will never achieve this goal. As the Organizations have already identified, extreme mountain biking is not a large sport in terms of the number of participants. When the spending profile of the mountain biking community is addressed, there are many other user groups that spend far more per day than mountain bikers who will be excluded from the trail network. These issues directly undermine any chance of the Proposal becoming a true economic driver.

The Organizations are intimately aware that multiple use is true driver. COHVCO has undertaken an economic contribution analysis of OHV recreation in Colorado, which concluded that the use of registered OHVs in the central region of Colorado result in more than $230 million in revenue and results in more than 2,700 jobs9 . A copy of this study has been included with these comments for your reference. The Colorado Office of Tourism has also undertaken a review of the economic contribution of tourism in the planning area. This report found that multiple use tourism results in Chafee County alone results in $82 million in revenue and 995 jobs. 10

CPW undertaken a review of the economic contributions of hunting and fishing in Colorado which determined that $55 million in spending and 385 jobs result from these activities in the Fourmile planning area.11 The hunting and fishing community has also identified that a lack of access is the single largest barrier to the development of new participants in hunting and fishing and also the largest barrier to those wanting to undertake these activities. These are user groups that currently would basically be precluded from obtaining any benefit from the Proposal.

As part of the NVUM process the USFS has a developed analysis process for comparative spending profiles of recreation activity and visitation in the NVUM analysis process. The low levels of visitation to federal public lands from mountain bike recreation has already been addressed in previous portions of these comments. The conclusions of NVUM research regarding the comparative spending profiles of user groups are summarized as follows:

20151101buenavista-table3.jpg12
The Organizations vigorously assert that these spending conclusions support significantly lower economic benefits from mountain bike recreation and correspond to the significantly higher economic benefits that accrue from other visitation to the planning area. The Organizations submit that creating a single use trail network for a small user group that spends significantly less than the user groups that are being excluded will not result in the activity being an economic driver. Rather this type of planning could actually result in lower economic benefits flowing to the planning area after the proposal.

Many motorized and multiple use trail based projects have been highly effective in driving local economies, such as Paiute Trail System in Utah and Hatfield McCoy Trails in West Virginia. The Paiute Trail System has experienced over $1 million in annual contribution from the trails network and the Hatfield McCoy trail network provides approximately $8 million per year to those local communities . Given the concrete contributions of these highly successful multiple use trail projects, the Organizations would be hesitant to support the projected $81 million that the Proposal asserts as a benefit, given these differences and the differences that are clearly evident between this estimate and the benefits that have accrued to the City of Whisler. Again the Organizations believe this type of accurate information and analysis is the cornerstone to any partnerships that might be developed in the future.

4b. Economic analysis of mountain biking recreation must be carefully reviewed.

The Organizations are very aware that the mountain biking community likes to rely on an economic contribution study from Whisler BC to establish that mountain bike based recreation is a significant economic driver. The Organizations have reviewed this document and have serious concerns regarding the relevancy of this document to most trails development proposals and that the study often is simply not accurately summarized.
The Organizations obtained a copy of the Western Canada Mountain Bike Study of mountain bike recreation (“Whisler study”) that was the basis for the economic analysis portions of the Proposal. A complete copy of this study has been included with these comments for your review. After reviewing the Whisler Study, the Organizations are very concerned about the accuracy of the contributions estimated in the Proposal, as the Whisler conclusions that generate contributions at $133 per day are based on significantly different types of recreational activities than the usage to be developed in the Proposal. The Organizations believe the Proposal has provided significantly misleading economic analysis by not correlating the usages addressed in the Whisler Study with the usages in the Proposal.

A brief outline of the Whisler Study will exemplify these concerns. The Whisler Study addressed four distinct riding areas and recreational mountain bike experiences in and around Whisler, BC. The Study refers to these areas as the Whistler Bike Park, Whisler Valley, Squamish and the North Shore and briefly summarizes these areas as follows:

“Trails on ‘the Shore’ are challenging for even the most experienced freeriders, Squamish has a multitude of trails for epic cross-country rides as well as freeride trails. Whistler features both cross-country trails throughout the Whistler Valley and the Whistler Bike Park features 44 lift accessed downhill trails for all skill levels.”13

The Whisler study specifically states that the Whisler Bike Park is significantly different recreational experience than the other three riding areas and that there is little cross over between users of the Whisler Bike Park with other areas. The Organizations do not contest that Whisler Bike Park generates $16.5 million annually as a result of the 44 lift accessible bike runs and that this spending accrues at an average rate of $133 per night per user. 14 The Organizations do question the relevance of these conclusions to the Proposal, as the Organizations are unable to find any reference to the use of ski lifts or other high developed facilities available in the Proposal area.

The Whisler study clearly finds there are very different levels of economic contribution that result from usage of the other three riding areas that are far more relevant to the Proposal in terms of levels of development. The economic benefits that result from the less intensively developed trail network in the Whisler area only results in $10.3 million in economic benefit, 15 which accrues at significantly lower per day rates ($39 to $93) than more intensive development and usage. 16 These spending profiles range from 25% to 70% of the estimates that are relied on for all usage in the Proposal. The Organizations vigorously assert that the economic contributions of the Proposal must be based on the spending profiles found in the less developed areas researched in the Whisler analysis as this most accurately reflects the direction and intent of the Proposal.

4c. Single use trail development projects have had limited success as an economic driver.

The Organizations are aware that many communities have targeted an overly narrow vision for economic development based on downhill mountain biking and that these economic development projects have become somewhat less successful than anticipated. Several such examples would be such as Mt Snow and Killington ski areas in Vermont or Mammoth Mountain in California. These ski areas embraced extreme mountain biking to the exclusions of other user groups in an effort to stimulate summer economic activities. These efforts did not yield anticipated results and Killington is now actively seeking out the motorized community for events such as the Jeepers Jamboree, now held annually at Killington.

The Organizations would be concerned that any single minded economic development plan that would be based on mountain biking to the exclusion of other uses would be significantly limited by the high quality opportunities that area already available in other locations in Colorado. Unlike Whisler BC, where there is little competition for mountain bike visitation, the Organizations would also note that there are many other mountain bike specific trail networks in the vicinity of Planning area, such as Moab, Utah, Crested Butte resort, portions of the Colorado River Valley BLM Office and Fruita, Colorado. These exceptional alternatives will impair the ability to draw any mountain bikers in numbers to offset lost revenues from user groups who may leave the Fourmile area.

5. Conclusion.

At the landscape level, the Organizations vigorously support two foundational principals: 1. that development of multiple use trails; and 2. trails should not be developed only to benefit a small user group. These foundational principals cause serious concerns with the specific trail development allocation in the Buena Vista Proposal. The Organizations vigorously support the development of multiple use single track trails in the Proposal, more specifically the Sleeping Indian trail. While we support the multiple use trails there is serious concern with both the basic need and direction that has been adopted for the management of other routes in the Proposal. There simply needs to be a far more balanced allocation of routes being developed. This balance can be achieved by allowing multiple use on routes proposed or by working with local motorized users to determine where additional trails would be appropriate.

The development of what is essentially an advanced mountain bike trail network is very concerning in the Proposal given the tenuous position of funding for all recreational activities on federal lands, the heavy usage of the Fourmile area already, limited benefit from the trail network. The Organizations would note that single track trail is some of the most sought after recreational opportunities and also some of the hardest to find in Colorado due to very limited amounts being available. It is the Organizations position that if trails are developed in the Proposal area, they must be overwhelmingly multiple use, as there is simply insufficient funding available to allow each user group to have a separate trail system on public lands and such a model does not reflect the multiple use model in place on public lands.

If you have questions please feel free to contact Scott Jones, Esq. at 508 Ashford Drive, Longmont, CO 80504. His phone is (518)281-5810 and his email is scott.jones46@yahoo.com.

Sincerely,

Scott Jones, Esq.
COHVCO & TPA Authorized Representative

Don Riggle
Director of Operations
Trails Preservation Alliance

 

1 See, Government Accountability Office report to Congressional Requestors GAO-13-618; Forest Service Trails- Long and Short term improvements could reduce maintenance backlog and enhance system sustainability; June 2013 at pg.

2 See link

3 A summary of these efforts is available here

4 See, USDA Forest Service; National Visitor Use Monitoring Report for USFS Region 2, Round 2, Last Updated May 23, 2012 pg 21.

6 See, National Shooting Sports Foundation; Issues related to hunting access in the United States; Final Report 2010 at pg 7. This document will be referred to as the NSSF report for purposes of these comments.

7 See, NSSF Report at pg 56

8 See, Colorado Parks and Wildlife; Jack Vayhinger CRIPPLE CREEK DEER MANAGEMENT PLAN DATA ANALYSIS UNIT D-16; GAME MANAGEMENT UNITS 49, 57, 58, 581 November, 2007.

9 See, McDonald et al; COHVCO; Economic Contributions of Off Highway Vehicle Use in Colorado; August 2013 prepared by Louis Berger and Associates at pg 17

10 See, Colorado Tourism Office Study Dean Runyan and Associates at pg. 38.

11 See , CDOW study the economic impact of hunting, fishing and wildlife watching performed by BBC Research and Consulting (September 2008) section IV at pg 16.

12 See, UDSA Forest Service NVUM Analysis; Stynes and White; Updated Spending Profiles for National Forest Service Visitors by recreational activity; November 2010 at pg 6.

13 See, Western Canada Mountain Bike Tourism Association; Sea to Sky Mountain Biking Economic Impact Study- Overall Results (undated) at pg 5. For purposes of these comments this document will be referred to as the Whisler Study.

14 See, Whisler Study at pg 5

15 See, Whisler Study at pg 1.

16 See, Whisler Study at pg 11.

Continue Reading

Outdoor Recreation Jobs and Economic Impact Act of 2015

pdficon_large.gif

Senator Corey Gardner
Att: Betsy Bair
400 Rood Avenue, Suite 220
Grand Junction, CO 31501
Outdoor Recreation Jobs and Economic Impact Act of 2015
Dear Senator Gardner:

Please accept this correspondence as our letter of support regarding the Outdoor Recreation Jobs and Economic Impact Act of 2015 (“the Legislation”). Prior to addressing the specific legislation, a brief summary of each Organization is needed. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization representing the 170,000 registered OHV users 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 Trail Preservation Alliance (“TPA”) is a 100 percent volunteer organization whose intention is to be a viable partner, 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 of the sport and takes the necessary action to insure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands.

Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite the more than 30,000 winter motorized recreationists across the state. CSA has become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling by working with Federal and state land management agencies and local, state and federal legislators. For purposes of this document, COHVCO, TPA and CSA will be referred to as “the Organizations”.

The Organizations vigorously support the Act as it has been our experience that the economic contribution of recreational activity is easily overlooked or badly undervalued in the balancing of multiple uses as part of federal lands planning. Our Organizations have recently been involved in the NEPA process regarding several BLM lands planning processes in Colorado where recreational spending was estimated between $10 & $15 per day for users who are traveling more than 50 miles to access these areas. This simply is not consistent with analysis from any other sources, where estimates exceeded $60-70 per day, resulting in significant undervaluation of total spending when areas experience hundreds of thousands of visitors per year. The Organizations are aware that this recreational spending is critically important to many western states and communities where there are extremely large percentages of federal lands. For many of these areas, revenue derived from recreational activity is critical in providing basic service, such as roads and schools. The Organizations believe that the single document from a credible government agency could provide a high level of consistency in these efforts and avoid issues like this in the future.

The Organizations are very familiar with the Outdoor Industry Association and Western Governors Association reports recently released on these issues. While there is value in this report, the Organizations submit that the single manner that information is provided in limits the value of these documents. The Organizations would hope that spending information be provided in as many different measures as possible, including total spending, per day spending for user groups, tax revenues derived from the activity and total jobs that result. Every forest plan is different in how value is measured and many user groups are experts in information when provided in a particular way.

The Organizations see a high level of value in a single comprehensive document that could be relied on for the valuation of recreation in federal lands planning and hope this legislation would produce such a document. While the Organizations have developed this type of information in Colorado for use in federal lands planning, often this information is simply overlooked in efforts to value recreational activity. In other regions, similar information is simply not available at all. This Legislation would be valuable in Colorado but would be even more valuable in these areas.

If you have questions please feel free to contact Scott Jones, Esq. at 508 Ashford Drive, Longmont, CO 80504. His phone is (518)281-5810 and his email is scott.jones46@yahoo.com.
Sincerely,

Scott Jones, Esq.
COHVCO & TPA Authorized Representative

Don Riggle
Director of Operations
Trails Preservation Alliance

Continue Reading

MTRA Fall 2015 Newsletter

pdficon_large.gifFall 2015 newsletter from MTRA – reprinted with permission.


Note: See the highlighted area – TPA is proud to have worked with other volunteers to re-route Poll Hill.

Motorcycle Trail Riding Association of Grand Junction
PO Box 3204
Grand Junction, CO 81502

Fall 2015

Installation of Club Officers for 2016: 
James Solomon, President  jimsolomon77@gmail.com
Marc Baker, VP  mbaker5@msn.com
Monte Potter, Treasurer, GVTA Roundtable Representative
Lee Cooper, Secretary and Membership  yz401@hotmail.com
Tony Gurule, Face Book and Social Chairperson
Cap Kuney, Trail Work Coordinator
James Cooper, Dozer Work and Trail planner
Millard Atkins, Director at large

Message from the president:
It is hard to believe that this year is winding down already and we are rapidly approaching the Winter season in Western Colorado.  The weather has been perfect for enjoying the lower elevation riding areas however.

We tried some new things this Summer like having a open BBQ for all off-road motorcycle riders.  We felt this was a good way for people with similar interests to meet each other and maybe find some new riding mates.  Much thanks to the motorcycle dealers who helped sponsor these events.  We are also planning to have a club ride each month in a different riding area.  We will have these rides on a weekend so that folks who are working can participate.  It looks like our next club ride will be late this month so watch for a flyer that we will email soon.  We are also planning some club events this Winter to help pass the time and keep the social aspect of the club alive and well.  Watch for further announcements.

201510_mtra-tshirt.png

We have MTRA T-shirts available in all sizes for the affordable price of $10 ea.  This is another way to let others know who we are.  Contact Lee Cooper for T-shirt purchase.

Trail Work Progress:
The biggest challenge and trail re-route that we did this year was the Poll Hill re-route.  Thanks to TPA ( Trails Preservation Alliance, Don Riggle), BRMC and MTRA volunteers who contributed funding and man-hours to complete this work.  Cap Kuney and Dan Gourley volunteered to operate the trail dozer and performed most of the heavy mechanical work.  Other club members helped on the ground as well:  Monte Potter, Jim Cooper, Ruxton Noble, Monte Potter, Stan Sammons and others spent some pretty grueling hours moving dirt and helping as much as possible.  The re-route was completed in a timely manner and the rider comments thus far seem to be pretty positive.  It would appear that even a “B” rider could make it up the hill now.

 

201510_mtra-pollhill.png
Cap Kuney working on Poll Hill

 

We are still trying to move the Forest Service to complete the Leonard’s ridge re-route.  Currently, the plan is to complete this section this Fall prior to Winter weather.  I have my fingers crossed as this will be a major challenge because of the steep grade and not much maneuvering room.  If we need additional man power I will let you know.  Hopefully, we can accomplish this with the dozer.

Tabeguache Connector:
This is finally a reality after a prolonged period of being dormant for any number of reasons.  On Saturday October 17, the Grand Mesa Jeep Club along with numerous other trail user volunteers took the first steps to create a route that will connect the Tabeguache Trail, which begins in Bangs Canyon and will now allow passage across Hwy 141 at Whitewater.  The official opening will be as soon as the DOT approves the crossing for unlicensed OHV’s.  Mesa County will help in making the crossing appropriate and legal.  Best guess for official opening will be this Fall or early Spring 2016.

Upcoming Trail Projects:
Now that we have a Final Record of Decision on the GJ Resource Management Plan we can begin the process of new trail development.  MTRA BOD met with the GJ BLM recreation staff to discuss opportunity in the Field Office area.  The following areas were suggested by the BLM as meeting their criteria for motorized recreation:

  • North Fruita Desert area (connecting Sarlaac Trial) to the desert area for a loop ride.
  • GV Open area accessible from 27 1/4 Road
  • Bangs Canyon SRMA
  • Horse Mountain area South of Palisade
  • Gateway below the Uncompahgre
  • Cactus Park
  • De Beque

The MTRA BOD is suggesting North Fruita Desert trail completion and Bangs Canyon trail completion as the first trail projects that we should focus on.  The club is mimicking what the mountain bikers have done, as they have been very successful in new trail development.  We are following the same process that they developed.

Membership and Social:
This year we managed to grow the membership substantially.  We are now at 52 paid members who have stepped up to support what we are trying to do for our form of recreation.  I don’t need to remind everyone how difficult it is when we are opposed by so many other land users as well as environmentalists who don’t even live in our area.  Believe me when I say we cannot let up for a moment.  We have made great strides in working with the land managers and the county.  We need to keep the momentum.  There is something additional you can do and that is to Like us on facebook  This will further enhance our visibility and exposure to more riders in and around the Grand Valley.

This commitment by MTRA is something we all benefit from but very few riders actually participate through membership or on the ground work.  This club and its objective can only continue to be successful if riders will step up and show support through joining MTRA and be willing to get more involved.   The $25.00 annual membership to MTRA is a very small contribution but it does show support for what we are doing on the ground, and numbers do count!

Have a great Holiday season and a safe Winter.

Included is a member application for your consideration.
Thank you for your support, faith, trust and confidence.

James Solomon, President

 

Continue Reading

SJTR Nordic Trail Proposal for Dunton Hot Springs

pdficon_large.gif
October 16, 2015

 

Mr. Tom Rice
Dolores Ranger District – SJNF
29211 Hwy. 184
Dolores, CO 81323

Re: Nordic Trail Proposal for Dunton Hot Springs

Mr. Rice:
Thank you for the correspondence to members of the San Juan Trail Riders organization (SJTR) for solicitation of comments on the Dolores District proposal to support the development of a Nordic Trail System to enhance the winter recreation opportunities for paying guests at Dunton Hot Springs. As you well know, SJTR members and other single-track motorized enthusiasts recreate in this area primarily during summer months on trails near the boundaries of Dunton Hot Springs. However, many of our members and other motorized users also find winter recreation in the nearby area via snowmobile travel so we have made sure to communicate with them to ensure that their concerns are reflected in our comments.

Our comments/concerns would be as follows:

  1. SJTR has strong concerns about the future of motorized (snowmobile, snow cycle) use in this area as to how it might be impacted once the Nordic Trail System is established. Historically, cross-country users in other areas on the SJNF, where similar trails have been established near snowmobile activity, begin to complain about noise from motorized activities disrupting their skiing experience and begin petitioning the FS to take action to remove snowmobiling activity. SJTR would ask that it be made perfectly clear that this entire area is multiple-use/joint-use and there would be no intention of changing use with the proposal of this Nordic Trail System.
  2. The proposal states that the groomed trails would be open to the public. Will appropriate areas be developed for the public to have access to the trails (e.g. trail head unloading area, parking, public toilet facilities, etc)? Will the general public have the same access hours as Dunton Hot Springs paying users? SJTR would hope to see that the Nordic Trail usage by the public be identical to that of Dunton Hot Springs and without additional charges.
  3. The Dolores District has noted in multiple OHV meetings that it has few if any resources to develop new trails and provide adequate trail maintenance for existing trails. How does the Dolores District intend to support the overall development and oversight of this new system? In other words, where does the funding and manpower come from?

The concern is that this trails project would appear to add to an already overloaded agency budget and staff availability. SJTR would like to know that agency resources would not be stretched by the implementation of this proposal since it is mainly for the profit of Dunton Hot Springs.

  1. SJTR finds it somewhat hypocritical, and almost laughable, that Dunton Hot Springs vehemently opposes motorized recreation in and around their resort during summer months but now fully utilizes motorized equipment (snowmobiles, snow tractors and mechanical grooming eq., and snow taxis) to enhance their paying resort guest experiences. SJTR would expect to hear that the agency ensures that all newly introduced equipment meet the 96dba sound / spark arrestor requirement as established for all motorized equipment.
  2. The proposal also mentions guided tours to be implemented with this proposal but it is not clear as to the routes of the guided tours, how they would be conducted and if the same routes would be available to the general public. SJTR would like to be ascertained that developed tour routes on public lands be available also to the general public.
  3. SJTR finds it somewhat ironic that the Nordic Trail System is to be developed into a “loop” trail system. It should be fascinating to note that most all trail travelers, whether it be on summer or winter trails highly desire “loop” experiences, not out-and-back routes. SJTR believes there is merit in utilizing this concept should this proposal be approved.

SJTR has the opinion that Dunton Hot Springs has not represented themselves as “good neighbors” in interaction with the OHV community. Although the leadership/membership of SJTR generally finds it highly justifiable to oppose most anything that Dunton Hot Springs desires to do to enhance the profits of their resort while they continue to sponsor aggressive opposition to any motorized activity near their resort during the summer months, SJTR will not oppose this proposal. SJTR will not oppose most any recreational development project that enhances opportunity for the public on public lands even if it is created primarily for the profit of private business but does provide some spin-off of use for the general public. Again, the SJTR Organization appreciates the opportunity to comment on this proposal.

Respectfully,

Allen C. Christy (Director) for: San Juan Trail Riders Board of Directors

Gary Wilkinson – President
Jason Chapman – Vice-President
Ashley Wilkinson – Secretary / Treasurer
Tim Barnes – Membership Brad Carey – Membership
Dustin Wilkinson – Board (State Trails Rep.)
John Bennett – Board
Jon Carmack – Board

Continue Reading

CO OREC Launches Advisory Group

pdficon_large.gif

DENVER, Mon., Oct. 5, 2015 – Momentum is quickly taking shape for Colorado’s new Office of Outdoor Recreation Industry (OREC), which today announced an advisory group that will work to execute on the results of a statewide listening tour.

Director of OREC, Luis Benitez, took the helm July 1, 2015 and immediately took to the road for a three-month statewide listening tour. He visited a wide range of outdoor recreation-based businesses, nonprofits and influencers across the state, as well as major national industry gatherings. The insights from this effort brought clarity on the state’s outdoor recreation community and industry, and the role of Colorado in the national outdoor recreation industry.

On his return, Benitez appointed over 20 Coloradans to serve on an OREC Advisory Group. The group, which has representation from all facets of the state’s recreation industry and community, will create alignment and roles to support the four points of focus for the office that were developed from the listening tour: Economic Development; Stewardship and Conservation; Industry Anchors and Education.

“Colorado is in a strong position to lead the Outdoor Recreation Industry on many levels, and with the help of the advisory group, the office will not only create the collective voice for the outdoor community and industry in the state, but also craft the collaborative vision for the future of the industry in Colorado,” said Benitez.

OREC Advisory Group Members:

Brady Robinson
Jenn Dice
Auden Schendler
Lauren Truitt
Bruce Ward
Jason Bertolacci
Don Riggle
Nathan Fey
Lise Aangeenbrug
Peter Oneil
Cailin O’Brien-Feeney
Kristin Carpenter-Ogden
Kenji Haroutunian
Annelise Loevlie
Tony Lewis
Kim Miller
Bill Gamber
Irene Vilar
Scott Braden
Rick Cable
Margaret Taylor
Phil Powers

The advisory group represents the first of its kind in the country. It brings together individuals with divergent outdoor recreation interests who are committed to aligning for the first time toward the common goal of supporting and growing Colorado’s outdoor recreation industry and bolstering its strong community.

Colorado is known for its amazing natural scenery and access to unprecedented wilderness, open spaces and trail systems. The state’s natural backdrops deliver amazing adventures on mountains, trails, rivers, rocks and cliffs, rivers and lakes for outdoor recreationalists of all walks of life. Outdoor recreation is the foundation of the quality of life for the state, and a key attraction point for companies within the outdoors industries calling Colorado home.

Together, the businesses comprising Colorado’s outdoor recreation industry are major economic drivers in the state, creating $13.2 billion annually in consumer spending, 125,000 Colorado-based jobs and $994 million in state and local tax revenue. Colorado’s outdoor recreation industry is a growth engine for cities, rural and mountain communities alike.

“One of the key four points of focus is economic development, and the advisory group understands the bridge between economic development and growing a healthy and prosperous community,” Benitez said. “This Office is the state’s acknowledgement of how important the outdoor recreation community is to us as Coloradans.”

On the national level, the State of Colorado holds a prominent position within the outdoor industries comprising snow, cycling, hunting and fishing, action sports and outdoor, respectively. According to the Outdoor Industry Association (OIA), the industry contributes $4.2 billion in wages and salaries in Colorado.

ABOUT THE COLORADO OUTDOOR RECREATION INDUSTRY OFFICE:
The Outdoor Recreation Industry Office, part of the Colorado Office of Economic Development and International Trade (OEDIT), was established in recognition of the impact and importance of the industry to the future prosperity and health of Colorado. It provides a central point of contact, advocacy, resources and support at the state level for the diverse constituents, businesses, communities and groups that rely on the continued health of the Outdoor Recreation Industry.

Continue Reading

Magnolia Trail Proposal

pdficon_large.gif
October 9, 2015

USFS- Boulder Ranger District
Att: Matt Henry
2140 Yarmouth Avenue
Boulder, CO 80301
Re: Magnolia Trail Proposal

Dear Mr. Henry:
Please accept this correspondence and attachments as the comments in vigorous opposition to the Magnolia Trail Proposal (“The Proposal”) in the Boulder Ranger District (“BRD”). The Organizations identified above are strongly opposed to the Proposal as the Proposal converts a historic multiple use area to an area for the exclusive use of a small user group under the guise of maintenance and are completely opposed to the proposed closure of the winter multiple usage of the area to allow for cross-country skiing. While the Organizations are concerned about any unauthorized trails in the area, the Organizations vigorously assert that closure of the entire area to multiple usage is simply unacceptable to address the historic lack of management of this area by the USFS. In an even more offensive step, the analysis of the Proposal is woefully inadequate on a wide range of issues. The Organizations submit that the multiple use access to these areas in all seasons is a critically important resource to those living in the vicinity of the Magnolia area and the BRD more generally. These opportunities are exceptionally limited already and closure of the Magnolia area will further the imbalance of opportunities in the area.

Prior to addressing the Proposal, we believe a brief summary of each Organization is needed. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization the 150,000 registered 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 Trail Preservation Alliance (“TPA”) is a 100 percent volunteer organization whose intention is to be a viable partner, 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 of the sport and takes the necessary action to insure that the USFS and BLM allocate for trail riding to receive a fair and equitable percentage of access to public lands.

Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA advocates for the 30,000 registered snowmobiles in the State of Colorado. CSA has become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling by working with Federal and state land management agencies and local, state and federal legislators. For purposes of this document, CSA, COHVCO and TPA are identified as “the Organizations”.

1. History.
The Organizations must express a significant amount of frustration with the direction that has been taken for development of the Proposal, as there are periodic meetings between BRD and many representatives of local motorized clubs including the Trail Ridge Runners, Boulder County Trail Riders and the Organizations in order to improve communication and partnerships between these groups on issues facing the BRD. None of the motorized users we have spoken with were even aware of the discussion in this area taking the direction of an exclusively non-motorized area. A review of the agenda and meeting minutes from the last several years of these meetings reveals absolutely no mention of issues in the Magnolia area or possible conversion of the area to an area that is completely non-motorized. The Organizations must question how such gaps in communication are even possible and the value of these meetings if issues such as Magnolia area are simply not going to be discussed.

While Magnolia management issues have not been discussed, the Organizations are also aware that several meetings have involved the direct discussion of grants to reopen areas impacted by flooding and the overall impact of the flooding on trail development proposals. These Discussions regarding grants to repair trails have not been supported by the USFS, due to their asserted need to undertake a more complete review of flooding impacts in order to determine priority areas for grants. Additionally, all trail development proposals were on hold indefinitely for the same reasons. Given that many grants take several years to process between initial application and funding, if there were funding needs in the Mangolia area to undertake basic maintenance and other issues, why was that discussion not undertaken in these meetings?

Additional frustration to the motorized community results from the ongoing closures to Rollins Pass Road despite numerous legally sufficient requests to reopen the route from multiple counties and the recent closure of the Lefthand Canyon Area to all usage after flood damage to the area. The geographic proximity of all these issues and management challenges simply cannot be overlooked or overstated as they are almost immediately adjacent. The Organizations believe management of the Magnolia area has only become more important with the loss of the Lefthand Canyon area and closure of the motorcycle track in Berthoud the demand for the exceptionally limited multiple use opportunities on the BRD will be higher than ever. This situation simply must be balanced in the development of the Proposal.

The Organizations were very involved in the development of the Arapahoe/Roosevelt NF resource Management Plan in the late 1990s. The Organizations are aware that under this RMP the Magnolia area provides significant opportunities to a wide range of recreational users such as camping and other types of day usage that are only utilizable with multiple use access. These activities would basically be prohibited by Proposal as most of the public will not seek to transport camping gear via foot or bicycle. The Organizations vigorously submit that multiple use access could be maintained in the area in conjunction with expansion of opportunities for other recreational usage.

2a. The Organizations must question the purpose and need for the entire Proposal given the strong public demand for multiple use opportunities on BRD.

The Organizations are strongly opposed to the basic principles that appear to be driving the Proposal, mainly that important multiple use areas may be closed for the benefit of smaller user groups. The Proposal clearly states the purpose and need for the Project as follows:

“The Forest Service proposes to determine a sustainable non-motorized trail system for the Magnolia area on the Boulder Ranger District”

This purpose and need is carried forward in each of the associated maps as no routes are identified for multiple use after the Proposal is completed. The Organizations are vigorously opposed to the Proposal both on a landscape and more localized level, due to the fact that BRD has the lowest levels of multiple use trails of any Ranger District in the State of Colorado. This is in direct conflict to the fact that Boulder County is consistently identified as one of the highest levels of registrations for OHVs in the State.1 The Organizations are simply unable to reconcile this situation and this imbalance has forced many users seeking multiple use opportunities to travel long distances off the BRD to obtain these opportunities and has entirely removed the possibility of riding after work or on a weekend due to the long distance travel that is needed.

The public’s desires for expanded multiple use access have also been directly conveyed to various representatives of the USFS via on-going public input at two recent meetings regarding the Magnolia area. The first public meetings occurred in February 2014 with Boulder County regarding reopening of Rollins Pass Road and the second of the public meetings regarding possible expansion of the James Peak Wilderness occurred in Blackhawk in 2011. The Organizations believe both these meetings is highly relevant to the discussions regarding Magnolia given the geographic proximity of these areas to the Magnolia area. Both of these meetings were attended by a large number of members of the public overwhelmingly seeking more multiple use access to these areas. The imbalance of public attendees seeking more access compared to those seeking restrictions for small groups was highlighted at the Boulder County meeting on February 13, 2014 which was attended by hundreds of members of the public and members of the BRD. Only a handful of the people attending this meeting sought to restrict access to the area or for the Rollins Pass Road to remain closed. Despite numerous requests from multiple counties to reopen this road as required by Federal Law2 this route remains closed due to the sole opposition by Boulder County on the basis of expanded multiple use in the area from reopening the area.

The public meeting regarding possible expansion of the James Peak Wilderness on July 2011 also directly evidenced the overwhelming demand for multiple use access to public lands in the BRD, as this meeting was attended by hundreds of members of the public and only three people testified in favor of more restrictions. Many of the same sweeping assertions of the benefits of the Wilderness expansion appear functionally identical to the sweeping generalizations of benefits found in the Magnolia proposal. This meeting was attended by various representatives of BRD who witnessed the basic inability of those seeking the expansion of the Wilderness area to defend these asserted benefits. Most asserted benefits simply had no scientific or factual basis. After this meeting, it was the general consensus of those that attended that the James Peak Expansion proposal was merely an attempt to legislatively mandate closure of these areas to multiple users and to mandate who had recreational access to these areas. The Organizations submit that when the James Peak expansion proposal failed, the supporters of this idea simply changed the location and went to the USFS instead of Congress. The Organizations submit that the answer from the USFS regarding restrictions to multiple usage in the Magnolia Proposal should be the same as the answer that was given by Congress in the James Peak expansion, which was clearly “NO”.

The imbalance of multiple use demand and opportunity areas on BRD has been compounded by the loss of multiple usage riding opportunities due to the flooding that impacted the area in 2013. These issues are more extensively discussed in subsequent portions of these comments. The opportunities to areas impacted by flooding must be restored prior to any trail development proposals that further reduce multiple use opportunities in the area. The Organizations would be remiss if the relationship between continuing limitations to multiple use access resulting from the flooding and the sudden desire to close more areas to multiple use was not noted.

2b. The Proposal is a significant restriction on public access to benefit a small user group.

The Proposal asserts there is a significant increase in trail mileage in the Magnolia area as a result of the Proposal. While there technically may be an increase in total mileage, the Organizations submit that there will be a significant decline in visitation to the area as most routes are not open to multiple usage. The Organizations are deeply puzzled as the why the BRD seeks to close the area to most public usage. If the Magnolia area has not been properly maintained, funding and partnerships with the motorized community are available to undertake this activity, but these have not been pursued.

Again, the basic purpose and need of the Magnolia Proposal is a serious concern, as it appears the area may be lost for multiple usage due to a lack of maintenance in the area and funding issues with USFS. The Organizations are unsure how restricting access based on unclear sources of funding to perform maintenance will resolve this issue, as a single group providing funding for maintenance should not impact public access to the area. The Organizations would note that the Lefthand Canyon area has been the recipient of several grants from the CPW OHV program for maintenance and improvement of the area for all users. In a highly frustrating turn of events, maintaining the Lefthand Canyon area for all users has now slowed or completely stalled the reopening of the area to multiple use due to lead levels in the soil as a result of recreational shooting in the area. In addition to these grants the motorized community has consistently removed several dumpsters a year of shooting debris from the area. The Organizations submit these efforts create no greater right for motorized usage of Lefthand Canyon than any other member of the public has to public lands.

If the logic of the Magnolia Proposal was applied to the Lefthand Canyon area, that area should have become a motorized only area as that is the group that is funding and maintaining the area. In an even more frustrating turn of events, now the Lefthand Canyon area is looking at being reopened only to non-motorized usage. Obviously that is not a viable management position for a variety of reasons. The Organizations must ask if this principal is not applicable to the Lefthand Canyon area, why is the management standard anymore applicable to other user groups in the Magnolia area. The answer this type of purpose and need is no more relevant to the Proposal and implied management standard is not acceptable in any location. Public access to public lands should be maintained regardless of who is providing grants to the USFS for maintenance of the area.

2c. The Proposal conflicts with RMP standards for the management of recreation in the area.

The Organizations are very concerned that the Proposal directly conflicts with the management standards for the area under the Arapahoe/Roosevelt Resource Management Plan (“RMP”). The RMP provides the following management standards for the area in figure 2.7 of the RMP on pg 70.

20151009Magnolia-jamescreek.jpg

After reviewing these standards, the Organizations are intimately aware that none of the management standards preclude motorized access, which is a significant difference from many other areas on the BRD, where multiple use access is prohibited under the RMP. The Organizations vigorously assert that these areas represent opportunity areas for growth of non-motorized recreation. The Organizations submit that the public that might be seeking something other than multiple use opportunities must be educated regarding the areas where these opportunities are already provided rather than closing one of the limited areas where multiple use opportunities are provided.

The Organizations would also note there are extensive areas in the BRD where a non-motorized trail network could easily be developed in a manner that is consistent with Forest Planning. The BRD website lists literally dozens of opportunity areas where hiking and mountain biking opportunities are available. 3 While there are numerous opportunities identified for non-motorized usage, only 9 are identified on BRD for multiple use recreation (including Magnolia).4 Further exacerbating this imbalance of opportunities, the Organizations are aware that several of these multiple use sites remain closed due to flooding impacts. Most of the 9 multiple use locations identified are only available to street licensed vehicles, resulting in even more importance to multiple users seeking to use vehicles such as ATV and Side by side vehicle of the Magnolia area. The Organizations must question why development of a non-motorized trail network in the Magnolia area was chosen over the numerous existing non-motorized areas or why the determination was made that Magnolia must be converted to a non-motorized area.

2d. Significantly more analysis must be done to support any changes to management of the Proposal area.

The Organizations submit that even if the Magnolia area remains the basis for expansion of non motorized usage there are clearly options for management of the Magnolia area that allow for expanded opportunities that do not come at the expense of existing resources, such as a single track trail that weaves through the area. These have been highly effective in other areas at resolving possible conflicts. These simply must be explored

3. Consistency with Boulder County planning directly conflicts with USFS multiple use mandates.

The Organizations are very concerned with references that are being made in the 2015 scoping letter from the USFS regarding consistency of the Proposal with Boulder County Open Space planning on county lands adjacent to the magnolia area. This type of management position presents many problems, the first of which is according to Boulder County website, all Reynolds Ranch planning has been put on hold due to flooding in 2013.5 The Organizations would be remiss if the fact that Boulder County has also clearly stated that any planning would be done in conjunction with the USFS lead in the Magnolia area. The second issue which directly relates to the ongoing Boulder County opposition to the USFS reopening Rollins Pass road to multiple usage despite federal law provisions requiring the road to be reopened upon request of only one of the four counties involved in that legislation. As a result, the Organizations have to question the basis for such a management position and objective being taken by the USFS as any logic would be entirely circular and completely lacking factual basis. These type of basic foundational analysis issues seem to plague the Proposal and simply must be resolved so the area may properly be managed under multiple use planning requirements.

The Organizations are also very concerned regarding the fundamental conflict between Boulder County Open Space management requirements and the multiple use planning and management requirements for the USFS. Boulder County open space management objectives are summarized as “expanding passive, sustainable and enjoyable public uses” on Boulder County Open Space lands and further “seeks to minimize impacts from legal third party usages.”6 Under Boulder County master plans, passive recreation is limited to:

“OS 4.03.01 Recreational use shall be passive, including but not limited to hiking, photography or nature studies, and, if specifically designated, bicycling, horseback riding, or fishing. Only limited development and maintenance of facilities will be provided.”7

The Organizations are utterly unable to reconcile the exceptionally narrow mission of Boulder County Open Space with the multiple use mission of the USFS, and as a result are very concerned with any attempts to reconcile the management of the two entities. The Organizations vigorously assert this narrow mission statement has not been supported in the two most recent public meetings regarding public lands in Boulder County.

It is the Organizations position that any landscapes where there are Boulder County Open Space areas involved, these Boulder County Open Space areas must be the first explored for non-motorized recreational opportunities and the USFS must strive to maintain multiple use opportunities on adjacent lands in order to provide a truly balanced usage at the landscape level. The Organizations vigorously submit that the Boulder County Open space lands must be viewed as primary opportunity areas for expansion of usage consistent with Boulder Counties mission in order to provide a balance of recreational opportunities for all members of the public. Clearly, this balance has not been struck in this Proposal and attempting to create consistency in management between Boulder County Open Space and USFS lands that might be adjacent would conflict with multiple use planning requirements.

4a. Funding sources must be identified prior to any closures of existing routes.

The Organizations and their local partners frequently work with the USFS on a wide range of trail and maintenance related issues throughout the state. These projects frequently involve land managers and users partnering to obtain grants and outside funding to help address ongoing budget issues faced by the USFS in recreational management. Often this partnership involves working with local clubs and Ranger Districts developing grants for basic trail maintenance projects, of which there have been no successful grants from the BRD despite the impact to much of the dispersed multiple use trail network from recent flooding. The Organizations are aware that significant pressure was applied by the motorized working group after the flooding in order to secure funding to begin trail repairs on the BRD. These efforts were not supported by the BRD due to timing issues and motorized users were clearly and repeatedly told that no trail development projects would be undertaken on the Araphoe/Roosevelt NF until an unspecified future time, when flooding damage could be addressed. A review of the CPW OHV 2015/16 grant applications reveals that again no applications are submitted from BRD to address flooding impacts. The Organizations are aware that immediate funding is most likely available to maintain and repair the trails in the Magnolia area if the USFS chose to apply for it. The Organizations must question this lack of interest in maintaining multiple use areas with grant funding while the Magnolia area is sought to be closed based on 10 year plans and unspecified funding sources.

The lack of any multiple use funding requests is highly frustrating to multiple users as it appears that while multiple use grants have not been pursued and support for such a grant has been actively avoided, there has been active projects in the Magnolia area that are seeking to exclude multiple usage and convert existing trails for small users groups rather than repair flood damage. In an even more frustrating turn of events, there appears to be funding to expand parking facilities in the Magnolia area after the area is closed to most usage. That is simply troubling as there have been ongoing discussions about parking at most multiple use areas on the BRD.

In addition to the active suppression of possible grant funding to perform maintenance and trail improvements to benefit all users in the Magnolia area, frustration is further increased by the fact that again the Forest Service has chosen to exclude the public for the benefit of a small user group. This is unfortunately becoming entirely too common as land managers are far too willing to accommodate the exclusionary desires of small groups over total benefit of the public. Here this situation is made even more perplexing by the fact that there is funding available to help maintain public access to the area, but land managers are seeking manage the area with a group that has no established funding source or project management plan or even clear timeline for completion of the project but seeks to exclude most of the public. This is simply bad decision making.

The Organizations are aware that if the multiple use community was pursuing a similar type project to the Proposal, exclusion of any user group from the benefit of the project would simply be unacceptable as a project objective. Additionally the multiple use community frequently has to provide a clear long term funding source for associated services, such as parking and sanitation, law enforcement and educational materials for any trail project. These types of on-going concerns are the basis for the CPW good management crew program, which again has not been sought after on the BRD. The Organizations vigorously assert that these same long term type management questions must be resolved prior to the project moving forward.

The Organizations are also aware that a significant expense can be incurred by the USFS in implementing any plans simply due to new signage, maps and other educational materials that are required. While these are significant expenses that are normally born under a grant, the Organizations are unable to identify any funding sources that are going to be relied on to offset these costs in the Proposal. The Organizations are vigorously opposed to the directing of any USFS funds to implement the Magnolia proposal that would come at the expense of reopening flood impacted opportunities and areas on the BRD.

4b. Immediate funding could be obtained to address continued multiple use access to the Magnolia area

While there is no clear funding for the closures of the Magnolia area under the Proposal, the Organizations assert that clear and reliable funding was available for efforts to continue multiple use access. The Organizations and their local partners have a long history of obtaining this type of funding for a variety of locations on the BRD, such as Lefthand Canyon and Jenny Creek through the CPW OHV grant Program. Historically these grants have provided hundreds of thousands of dollars to BRD for multiple use access projects. Partnering for a grant to manage the Magnolia area would have been easily supported by the multiple use community prior to the Proposal, but the Organizations have to express concern about funding like this moving forward. The Proposal has clearly impacted that desire to support public land managers.

4c. No management changes should be made regarding authorized routes or usages until funding for changes is CLEARLY secured.

The Organizations vigorously assert that no changes in current authorized usage should be undertaken until clearly identified and obtained funding for the changes has been obtained. Given the rather speculative nature of the funding sources, closures or restrictions of any authorized routes is completely unacceptable.

5a. Winter travel management decisions are arbitrary and furthers the existing imbalance of winter recreational opportunities on the BRD.

The Organizations submit that it is completely unacceptable to close the entire proposal area to OSV usage as the analysis of winter recreational usage in the Proposal suffers from many of the same foundational oversights as the summer management standards. There are numerous areas outside Magnolia area that are currently managed for non-motorized recreation in the winter time and these areas must be looked at as the primary opportunity areas for users seeking non-motorized winter recreational opportunities. Again these types of balanced usage are not pursued and closure of the Magnolia area to OSV is identified as the first step for management of the area. The Organizations are aware that the Magnolia area is not a destination location for OSV travel in Colorado due its lower altitude and limited snowfall. Nonetheless the Proposal area represents an important recreational resource for the snowmobilers in the community and many riders in the area use these routes to obtain quick rides after a snowfall, bring new riders into the backcountry and to insure that equipment is working properly prior to traveling. These types of opportunities are in exceptionally limited supply throughout most of the Front Range due to limited snowfalls, making any of these local close to home type opportunity areas highly valued to all users.

The Organizations have had the opportunity to review the Arapahoe/Roosevelt NF planning winter travel management documents from their recent resource management plan. Again the Proposal completely conflicts with winter travel management standards and decisions in the RMP. The Organizations believe it is significant to note that on the dedicated OSV page on the Arapahoe/Roosevelt Website there is not a single OSV opportunity identified on the BRD8 , while 21 separate locations are identified for cross-country skiing9. This is significant as the average person could easily assume there simply no opportunities for OSV recreation on the BRD. Clearly that is not the case as snowmobile usage does occur on the BRD and has been specifically protected on the Rollins Pass Road by federal law.

5b. Significantly more analysis must be done to support any changes to winter management of the Proposal area.

The Organizations submit that there are clearly options that allow for expanded opportunities that do not come at the expense of existing resources such as a single track trail that weaves through the area. These types of have been highly effective on other USFS areas at resolving possible conflicts. The Organizations further submit that the mere assertion of benefits to resources from closing the area is completely insufficient to satisfy NEPA. The Organizations submit that a proposal to groom any area for multiple use recreation that asserted grooming would be done with a snowmobile, larger piece of equipment or other equipment would immediately to the applicant be returned for insufficiency. The Organizations submit that there is simply no way to analyze impacts from “some equipment” in a manner to comply with NEPA.

5c. The Proposal furthers existing imbalances of recreational opportunities and conflicts with RMP analysis of winter travel opportunities.

As the Organizations have already noted, there is a horrible imbalance of winter travel opportunities on the BRD that existing under current planning. The Organizations are very concerned that under current planning the Proposal area is to be managed for both winter motorized and non-motorized opportunities along with habitat. This current management is reflected as follows:

20151009Magnolia10.jpg10

Again the BRD ranger district website is very helpful in identifying the imbalance of winter travel opportunities on the district. 21 different locations are identified where cross country skiing and snowshoeing are available. 11 In stark comparison, the website does not identify a single location on the BRD where snowmobiling is permitted. 12 The situation regarding snowmobile access is puzzling as snowmobile usage of the Rollinsville Road is specifically protected in federal legislation.13

Given the imbalance of opportunity already existing and large areas where non-motorized access could be improved without impacting other uses, the Organizations again must question why closure of historical routes and areas is the first alternative chosen for expanding usage in the area.

6. Closures of the Proposal area will result in increased user conflict.

Throughout the Proposal documents, numerous assertions are made that the Proposal will improve recreational experiences. The Organizations submit that the Proposal will result in significant expansion of user conflicts in the Magnolia area. The Organizations believe that after a brief summary of research into user conflict, the difference in the Proposal management and best available science on the issue will be clear. Researchers have specifically identified that properly determining the basis for or type of user conflict is critical to determining the proper method for managing this conflict. Scientific analysis defines the division of conflicts as follows:

“For interpersonal conflict to occur, the physical presence or behavior of an individual or a group of recreationists must interfere with the goals of another individual or group….Social values conflict, on the other hand, can occur between groups who do not share the same norms (Ruddell&Gramann, 1994) 13 and/or values (Saremba& Gill, 1991), independent of the physical presence or actual contact between the groups……When the conflict stems from interpersonal conflict, zoning incompatible users into different locations of the resource is an effective strategy. When the source of conflict is differences in values, however, zoning is not likely to be very effective. In the Mt. Evans study (Vaske et al., 1995), for example, physically separating hunters from nonhunters did not resolve the conflict in social values expressed by the nonhunting group. Just knowing that people hunt in the area resulted in the perception of conflict. For these types of situations, efforts designed to educate and inform the different visiting publics about the reasons underlying management actions may be more effective in reducing conflict.” 14

Other researchers have distinguished types of user conflicts based on a goals interference distinction, described as follows:

“The travel management planning process did not directly assess the prevalence of on-site conflict between non-motorized groups accessing and using the yurts and adjacent motorized users…..The common definition of recreation conflict for an individual assumes that people recreate in order to achieve certain goals, and defines conflict as “goal interference attributed to another’s behavior” (Jacob & Schreyer, 1980, p. 369). Therefore, conflict as goal interference is not an objective state, but is an individual’s appraisal of past and future social contacts that influences either direct or indirect conflict. It is important to note that the absence of recreational goal attainment alone is insufficient to denote the presence of conflict. The perceived source of this goal interference must be identified as other individuals.”15

It is significant to note that Mr. Norling’s study, cited above, was specifically created to determine why travel management closures had not resolved user conflicts for winter users of a group of yurts on the Wasache-Cache National forest. As noted in Mr. Norling’s study, the travel management decisions addressing in the areas surrounding the yurts failed to distinguish why the conflict was occurring and this failure prevented the land managers from effectively resolving the conflict.

The Organizations believe that understanding why the travel management plan was unable to resolve socially based user conflicts on the Wasache-Cache National Forest is critical in the Proposal planning area. Properly understanding the issue to be resolved will ensure that the same errors that occurred on the Wasache-Cache are not implemented again to address problems they simply cannot resolve. The Organizations believe that the BRD must learn from this failure and move forward with effective management rather than fall victim to the same mistakes again. Unfortunately, the BRD Proposal appears to be falling victim to the same issues as the Wasache-Cache rather than learning from them, since closures are immediately relied upon to address what the Organizations have to believe are a significant amount of socially based user conflicts.

At no point in the Proposal is there any mention of programs or resources to be developed that might be available to address socially based user conflicts. While the Organizations are aware that such a discussion is technically outside the Proposal, the Organizations believe that if a distinction between the different bases for user conflicts had been made in the planning process, this distinction would have warranted a brief discussion of methods for resolution of socially based conflicts through educational programs. The lack of an educational component in planning as a tool to be utilized in conjunction with travel management issues and trail closures, leads the Organizations to conclude that there was a finding at some point in the planning process to the effect that all user conflicts are personal in nature. This type of finding would be highly inconsistent with both the Organizations experiences with this issue and the related science.

The Organizations believe the proposed management, and associated high levels of route closures, will result in increased user conflicts as recreational opportunities in the area will be lost and not replaced to address an issue that the closure simply cannot remedy. As noted above, personal user conflicts only account for a small portion of total user conflicts. While these personal conflicts would be resolved, the overwhelming portion of user conflict results from a lack of social acceptance by certain users and these conflicts would only be resolved with education. The Organizations believe the distinct between personal and social user conflict must be addressed in the Proposal and the levels of closures reviewed to insure that the levels of closures are not going to result in increased user conflicts. The Organizations believe that increased conflict is a serious risk given the high levels of closures that are proposed.
7. Conclusion.
The Organizations must oppose all phases of the Proposal as it exacerbates the existing imbalance of recreational opportunities on the BRD. The Organizations identified above are strongly opposed to the Proposal as the Proposal converts a historic multiple use area to an area for the exclusive use of a small user group under the guise of maintenance and are completely opposed to the proposed closure of the winter multiple usage of the area to allow for cross-country skiing. While the Organizations are concerned about any unauthorized trails in the area, the Organizations vigorously assert that closure of the entire area to multiple usage is simply unacceptable to address the historic lack of management of this area by the USFS. In an even more offensive step, the analysis of the Proposal is woefully inadequate on a wide range of issues. The Organizations submit that the multiple use access to these areas in all seasons is a critically important resource to those living in the vicinity of the Magnolia area and the BRD more generally. These opportunities are exceptionally limited already and closure of the Magnolia area will further the imbalance of opportunities in the area.

Please feel free to contact Scott Jones at 518-281-5810 or via email at scott.jones46@yahoo.com or via USPS mail at 508 Ashford Drive, Longmont, CO 80504 for copies of any documentation that is relied on in this appeal or if you should wish to discuss any of the concerns raised further.

Respectfully Submitted,
Scott Jones, Esq.
COHVCO/TPA Authorized Representative
CSA President

Don Riggle
Director of Operations
Trails Preservations Alliance

 

1 Various personal communications between the Organizations and representatives of the CPW OHV Program.

2 See, PUBLIC LAW 107–216—AUG. 21, 2002 section 7(b).

3 See, www.fs.usda.gov and www.fs.usda.gov

4 See, www.fs.usda.gov

5 See, www.bouldercounty.org

6 See, Boulder County Master Plan Open Space management objectives goals and objectives at section IIIb.

7 See, Boulder County Master Plan Open Space management objectives at page OS-5

8 www.fs.usda.gov

9 www.fs.usda.gov

10 Complete map available at www.fs.usda.gov

11 www.fs.usda.gov

12 www.fs.usda.gov

13 See, PUBLIC LAW 107–216—AUG. 21, 2002 at Sec 3.

14 Carothers, P., Vaske, J. J., & Donnelly, M. P. (2001). Social values versus interpersonal conflict among hikers and mountain biker; Journal of Leisure Sciences, 23(1) at pg 58.

15 Norling et al; Conflict attributed to snowmobiles in a sample of backcountry, non-motorized yurt users in the Wasatch –Cache National Forest; Utah State University; 2009 at pg 3.

Continue Reading

TPA FS MTRA Bookcliff team up

The North Uncompaghre Plateau has a great motorized trail system. It consists of ATV and motorcycle trails for the more advanced trail riders. One of the most challenging and infamous trails is the Long Canyon Trail. At the far southern end of the rail is a steep rocky climb known as Pole Hill. In the 2014 Snowshoe National Enduro the Long Canyon Trail was an A B only special test section. After the check out at the bottom of pole hill there was a big bottle neck of A and B riders stuck on Pole Hill. That was it. Something needed to be done about Pole Hill.

20151003LongCanyon1.jpg

The Rattlers went to the Grand Valley Ranger District of the Forest Service and recommended relocation. The Forest Service located a more sustainable and rideable alternative. They did the NEPA analysis and flagged a suitable location.
Next was the collaboration between the Rattlers, Motorcycle Trail Riders Association and the Forest Service. It was decided that the best tool for the trail construction was a SWECO 300 trail dozer. With financial contributions from the Trails Preservation Alliance and The Bookcliff Rattlers, members of the MTRA did tractor constructed of the trail bed in August of 2015. Hand crews provided by the Forest Service and the Statewide OHV trail Crew cut out the corridor and did the hand finish work. Signing and obliteration of the old trail alignment was done by the Grand Valley Ranger District Single Track Crew.

20151003LongCanyon2.jpg

MTRA has applied for and granted funds to purchase a SWECO 300. After it is delivered in the spring of 2016, the mini tractor will be available to agencies to maintain and construct single track motorized trails on the western slope. The Pole Hill project was a great shake down for the MTRA crew to learn more about the equipment and the logistics.

Thanks to TPA and the Rattlers for the financial support.

20151003LongCanyon3.JPG

Continue Reading

Appeal of Grand Junction RMP ROD

pdficon_large.gif
September 19, 2015

BLM, Colorado State Office
Div. of Energy, Lands, and Minerals (CO-920) 2850 Youngfield Street
Lakewood, CO 80215

Department of the Interior,
Regional Solicitor, Rocky Mountain Region
755 Parfet Street, Suite 151
Lakewood, CO 80215

Re: Appeal of Grand Junction RMP ROD

Dear Sirs:

Please accept this correspondence and attachments as the appeal and objections of the above Organizations with regard to the Record of Decision regarding the BLM Grand Junction Resource Management Plan (“ROD”). For purposes of this appeal/protest these documents will be collectively referred to as “the ROD” or “the RMP”. It is the Organizations position that the analysis of and information provided regarding the 966 ineligible cultural resource sites is insufficient, is arbitrary and capricious as a matter of law and fails to provide the hard look at issues mandated by NEPA. The Organizations submit that at some point in the ROD development, a decision was made that all possible cultural resource sites would be protected at all costs and there was to be no further analysis of that decision. This decision continues to materially and directly impact the ability of the public to address site specific concerns on impacts resulting from management changes causing changes to other uses of these possible cultural sites.

The ROD and related documents fails to provide the public with sufficient information to identify specific routes that were being closed due to cultural resource issues. The basic determination of if a route that has been closed is to protect a cultural site that has been found ineligible for protection on the national register is a critical step in developing site specific comments. By BLM regulation, all available information on illegible sites must be made public. This information has simply has been withheld by the GJFO under a claim of confidentiality and has precluded the public from reviewing any of the 966 sites found ineligible in order to create meaningful site specific comments regarding impacts from mandatory management standards for these sites.

Rather than provide the legally mandated information, the GJFO has provided the public with a spreadsheet that provides no additional information regarding ineligible sites when compared to eligible sites. This is a direct violation of relevant case law and regulations requiring additional information be provided regarding ineligible sites that were reviewed in order to explain why they were found ineligible.

The illegally limited scope of information regarding cultural sites that are specifically found ineligible for listing on the National Register of Historic Places has directly prejudiced the ability of the Organizations to address the impacts of the cultural resource management decisions on specific routes, as the Organizations are simply unaware of where any sites are located in the field office and as a result are unable to address specific routes. The Organizations submit the impacts of these decisions on the trail network have been significant. Additionally the proposed management of cultural resources fails to properly balance multiple use management standards with the protection of cultural resources, as the RMP seeks to manage possible cultural sites as a trustee would manage a trust rather than as a balanced multiple use of public lands.

The Organizations are very concerned about the site specific impacts of mandatory management closures, which the Organizations submit are very significant as more than 500 of the sites subject to mandatory closure either need data or analysis at the site specific level. Given the clearly limited scope of review that has been undertaken, the Organizations vigorously submit that any balancing of multiple uses on these sites is impossible as a matter of law. As a result of the failure to obtain sufficient information in the inventory process, the Organizations are now unable to prepare site specific comments.

Prior to addressing the appeal/protest of the Proposal, we believe a brief summary of each Organization is needed. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization the 150,000 registered 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 Trail Preservation Alliance (“TPA”) is a 100 percent volunteer organization whose intention is to be a viable partner, 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 of the sport and takes the necessary action to insure that the USFS and BLM allocate for trail riding to receive a fair and equitable percentage of access to public lands.

Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA advocates for the 30,000 registered snowmobiles in the State of Colorado. CSA has become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling by working with Federal and state land management agencies and local, state and federal legislators. For purposes of this document, CSA, COHVCO and TPA are identified as “the Organizations”.

The Organizations comments on the draft RMP are submitted with this appeal/protest as an attachment.

1. Executive Summary.

The Organizations submit that simply understanding the scope of impacts from the massive changes in management of cultural resources on the GJFO is critical to understanding the issue. The Grand Junction RMP proposes to close 1,894 possible cultural sites, 612 miles of existing routes and 53,500 acres to all surface disturbing activity for protection of possible cultural resources sites. This is expansion in management by a factor of 236 times from the 8 sites currently managed and an expansion of 5x the number of acres to be closed. This level of expanded management directly conflicts with current management of sites, which only identifies 3 of the 1,894 sites as being on the National Register and manages 8 sites currently. By comparison there are only 50 sites in Mesa and Garfield Counties on the National Register, 1,492 sites in the entire state of Colorado and that the District of Columbia only has 597 sites. The Organizations submit that the sheer scale and impact of these management changes simply has not been analyzed in a manner that could be sufficient to satisfy NEPA and significant information has been illegally withheld from the public . The Organizations submit that these levels of expansion of any management issue would warrant a rather detailed discussion of the necessity of such management and especially how the expansion was balanced under multiple use mandates. This simply has not been provided.

The Organizations are concerned about the imbalance of usage resulting from cultural resource management standards, as these impacts are not remote or abstract and run well beyond the mileage of routes proposed to be closed. Each of the 1,894 sites identified in the GJFO RMP is subjected to a mandatory closure to surface disturbing activities of at least 100 meters and possibly 200 meters around the site to all surface disturbing activities including trails and recreational usage, oil and gas, grazing and many other uses. While defining surface disturbing activity would be a critical step in balancing usages, the RMP simply fails to define this term. This begs the question of how was the required hard look at balancing usages in any area undertaken when the usages to be prohibited is simply never defined. The Organizations further submit that implementation of this standard will directly conflict with a wide range of federal laws and other agency planning efforts and is unprecedented management of these issues.

The indications of the priority position given to cultural resources over all other multiple uses is directly evidenced by numerous allocations of resources in the planning process including:

  1. The exceptionally high percentage of sites found eligible for further management;
  2. The large number of sites that are lacking data;
  3. Mandatory closures fail to address the seriously deteriorated nature of many of these sites as a result of previous management decisions;
  4. The illegal withholding of data regarding sites not eligible for protection on the national register; and
  5. While numerous other multiple uses changed between the draft and final, no aspect of cultural resource management changed.

Of the 1,894 sites identified only 7 were released from further management meaning that 99.3% of the sites identified were found suitable for management. The Organizations believe such a high acceptance rate for any activity in multiple use planning is an indication that the required balance of multiple use was badly out of balance. The reasoning for exclusion of these sites from further management also indicates an imbalance of multiple usage as the sites excluded from management were either sold by the BLM or destroyed by fire making further management impossible. The Organizations submit there is a significant difference between a site being “impossible to manage” and being “suitable to manage” and this distinction is simply never raised in the FRMP. Preparation of site specific analysis and comments is impossible for the public as there is simply not sufficient information provided to the public to allow for determinations on routes being impacted by mandatory closures.

The Organizations submit that a proper balancing of multiple usages with cultural resource protection is impossible with the current inventory and management. The exceptionally limited information in the cultural site inventory provided in appendix I clearly finds that 27% of the 1,894 sites identified either “need data” or “further assessment.” While 27% of the sites need data, the Organizations are unable to address the impact of these sites on roads and trails in the area of the sites as all information has been withheld. The Organizations submit this void of data is direct evidence that cultural resource were arbitrarily given a priority position in balancing multiple uses, as the Organizations are unsure how this balance could be made when land managers are not aware of what is at the site or the true size of the site. The Grand Junction RMP simply fails to address the basis for management of 27% of the cultural sites to be closed and how the balancing of multiple uses has occurred in the decision making process. The Organizations are aware that while the specific locations of cultural resources sites are confidential, this confidentiality of sites is not a waiver of NEPA analysis.

The Organizations submit that the limited information inventory of cultural sites further provides that 51% of the 1,894 sites identified are “not eligible” for protection on the National Register. Again the Organizations must question how multiple uses are balanced with these sites as there is no distinction in the management standards being applied between sites that might be eligible and those areas that are not eligible for listing. Again the Organizations vigorously assert that our ability to appeal any site specific concerns has been prejudiced by the illegal withholding of information regarding sites that are ineligible for listing on the national register, which by law must be publicly disclosed after the determination of ineligibility has been made.

Even more serious concerns about the proper balancing of multiple usages in cultural sites result from changes in between the draft and final RMP, where recreational economic contributions in value and related jobs were expanded to almost 7 times original estimates. Many routes were reopened due to the heightened importance of recreation. While the economic contribution of recreational activity was expanded to 7 times original estimates, there was simply no change in any aspect of cultural resource management despite the fact that closures of 1,894 sites at least a football field in size to all usages could clearly have an impact on recreational access and the economic benefits that flow to local communities as a result. Again, cultural management analysis remains completely unchanged between the draft and final RMP indicating a serious imbalance in usages. The public is unable to address this imbalance at the site specific level as sufficient information is never provided to them under claims of confidentiality by the BLM.

The Organizations submit that management of cultural sites as a trustee has also precluded viable management options for these areas such as moving to a designated trail system instead of the continued open riding designations, which would provide a far more balanced usage of resources and protection of sites. The mandatory closing these sites would clearly impact routes that are critical to accessing other recreational opportunities that are totally unrelated to the cultural sites. The Organizations believe an economic analysis of the impacts to recreational access from these mandatory requirements would be highly site specific, as there are numerous geographic limitations in the GJFO which would severely impact access to significant portions of the field office. In numerous areas trails and routes are at the bottom of canyons and large washes due to steep and rugged terrain. The Organizations are forced to believe that many of the same geographic limitations currently in the field office forced herd animals and the Indians through the same canyon bottoms hundreds of years ago as are now being used for recreation. Expansion of recreational spending and jobs would clearly weigh against current closures in an area such as these types of bottlenecks as recreational values for the areas lost outside the bottleneck areas would be exponently higher. The Organizations are further concerned regarding the long term impacts of these management standards as any site specific work in the future would be subjected to mandatory closures and probably result in additional lost routes and an impossibility to build new routes.

 

2a. Standard of review for NEPA decisions on appeal.

The Organizations believe a brief summary of the standard of review applied by Courts reviewing agency NEPA analysis is relevant to this discussion, as the Courts have consistently directly applied the NEPA regulations to EIS review both at the landscape and site specific levels. As a general review standard, Courts have applied an arbitrary and capricious standard of review for agency actions under NEPA. This standard is reflected as follows:

“…it required only that the agency take a “hard look” at the environmental consequences before taking a major action. See, Kleppe v. Sierra Club, 427 U. S. 390,427 U. S. 410, n. 21 (1976). The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions, and that its decision is not arbitrary or capricious. See generally, Citizens to Preserve Overton Park, Inc. v. Volpe 401 U. S. 402, 401 U. S. 415-417 (1971).”1

The Organizations submit that the expanded scale and scope of protection of cultural resources is simply unprecedented as 99.3% of the sites proposed are found to be worthy of management and is arbitrary and capricious as a matter of law and a direct violation of cultural resource laws. The failure to properly balance cultural resource management with other multiple uses is also a violation of law as management is clearly reflected a trustee type position being taken for cultural resources to the detriment of other multiple uses to be balanced in a NEPA analysis. How can legally mandated balance be achieved at sites that are clearly identified as needing data and analysis? The Organizations submit it cannot.

The arbitrary and capricious nature of the cultural resource management standards is further evidenced by the fact that usages that created some of the sites is now prohibited from continuing as exemplified by the fact that routes created for or by multiple use are now closed to multiple use in order to protect the cultural values of the route. This position completely lacks any basis in law or fact.

 

2b. The standard of review for economic benefits is a de novo standard as the Courts have consistently substituted their judgment regarding the benefits of economic activity.

While the general standard of review for agency actions is an arbitrary and capricious standard of review, Courts have consistently held agencies to a much tighter level of review of economic benefits in the NEPA process, as the court makes their own conclusions regarding the accuracy of review without deference to agency findings. Relevant court rulings addressing economic analysis and benefits have concluded:

“an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.”2

The Court discussed the significance of economic benefits and analysis in planning as follows:

“Misleading economic assumptions can defeat the first function of an EIS by impairing the agency’s consideration of the adverse environmental effects of a proposed project. See, South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011- 12 (5th Cir.1980). NEPA requires agencies to balance a project’s economic benefits against its adverse environmental effects. Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1113 (D.C.Cir.1971). “3

The level of accuracy of the hard look at economic analysis applied by the Court in the Hughes River decision is significant as the Hughes River Court invalidated an EIS based on an error in economic contribution calculations of approximately 32%.4 As more specifically addressed later in this appeal, economic contributions of recreational usage and related jobs expanded to more than 7 times original estimates between the draft and final RMP but the management of the more than 1,894 sites identified for cultural resource management simply never changes in terms of total sites, allocation of these sites to use categories or management standards that are associated with the usage categories. The Organizations submit that any assertion that a 7x expansion of recreational spending and jobs would not impact these issues would completely be a factual and legal basis as recreational usage is directly impacted by the closure of 1,894 football field sized sites around the field office. NO additional information or analysis is provided to justify the continued application of mandatory closures of all cultural sites. Such a failure of analysis simply cannot be defended under the De Novo standard.

 

3. Management of possible cultural resource sites is governed by multiple use principals under federal law.

The Organizations believe a review of the statutory management requirements for cultural sites is highly relevant to this appeal and further emphasizes the critical need for the public to have information on sites. The Organizations do not contest that the National Historic Preservation Act of 1966 5 (“NHPA”)provides for an extensive process that must be undertaken in order to consult with Native Americans, identify and inventory cultural sites on public lands to be followed. The NHPA provides extensive guidance for the cultural site inventory process and general objectives, but the NHPA stops short of addressing management of these sites. Rather NHPA is largely procedural in nature and does not mandate a specific outcome in the management process, as it provides as follows:

” It is the policy of the Federal Government, in cooperation with other nations and in partnership with States, local governments, Indian tribes, Native Hawaiian organizations, and private organizations and individuals, to use measures, including financial and technical assistance, to foster conditions under which our modern society and our historic property can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;

  1. provide leadership in the preservation of the historic property of the United States and of the international community of nations and in the administration of the national preservation program;
  2. administer federally owned, administered, or controlled historic property in a spirit of stewardship for the inspiration and benefit of present and future generations;
  3. contribute to the preservation of nonfederally owned historic property and give maximum encouragement to organizations and individuals undertaking preservation by private means;
  4. encourage the public and private preservation and utilization of all usable elements of the Nation’s historic built environment; and
  5. assist State and local governments, Indian tribes and Native Hawaiian organizations, and the National Trust to expand and accelerate their historic preservation programs and activities.” 6

Congress did not specifically address management of cultural sites until FLPMA was adopted in 1976, where Congress clearly stated that cultural resources are a factor to be balanced as a multiple usage of public lands. Congress has repeatedly had the opportunity since adopting FLPMA to exclude cultural resources from this balancing process and chose not to make such an amendment. Rather Congress has repeatedly and clearly stated the requirement that cultural resource protection be governed by multiple use requirements. The management of cultural resources on public lands is specifically addressed in FLPMA which states as follows:

(8) the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use;” 7

Several years later, Congress had the opportunity to change cultural resources management standards and alter the balance of multiple use requirements in relation to cultural resources management. Again, Congress chose not to make such an amendment by clearly stating in the Archaeological Resource Protection Act as follows:

“SEC. 12. (a) Nothing in this Act shall be construed to repeal, modify, or impose additional restrictions on the activities permitted under existing laws and authorities relating to mining, mineral leasing, reclamation, and other multiple uses of the public lands.”8

The Organizations submit that cultural resource management is a two step process: 1: creation of an inventory and allocation of sites to use categories; and 2: balancing protection of inventoried sites with multiple usages of these areas. The Organizations vigorously assert that the Grand Junction FRMP clearly has placed the management of cultural resources ahead of all other multiple uses and has failed to balance impacts from cultural resource protections with other activities by managing each site as a trustee as evidenced by the fact that the only sites excluded from management were actually impossible to manage as they had been destroyed by fire or previously sold. The Organizations submit that this failure to balance multiple uses at the site specific level is directly evidenced by the fact that economic contributions from recreational activities expanded to more than 7 times original estimates between the draft and final RMP and absolutely no changes were made to the total number of cultural sites, allocation of cultural sites to management categories, management standards for each category of usage or the fact that eligibility for the national register simply was not addressed.

Numerous BLM manuals issued relative to the application of these Congressional mandates and outlining proper implementation of the required balancing of multiple uses with cultural resources management have specifically stated clarified the lack of a priority management position for cultural resources in relation to other multiple uses on public lands as follows:

“B. The Nature of BLM’s Tribal Consultation under Cultural Resource Authorities. In contrast, BLM’s tribal consultation under cultural resource authorities generally does not involve either Indian lands or trust assets, and consequently there is no ownership-based presumption that a tribe’s input will compel a decision that fulfills the tribe’s requests or resolves issues in the tribe’s favor. The BLM manager must make an affirmative effort to consult, and must consider tribal input fairly; but decisions are based on multiple-use principles and a complex framework of legal responsibilities, not on property principles and the obligations of the trustee to the trust beneficiary.9

C. Apart from certain considerations derived from specific cultural resource statutes, management of cultural resources on the public lands is primarily based on FLPMA (see .O3H), and is governed by the same multiple use principles and the same planning and decision making processes as are followed in managing other public land resources.”10

It is the Organizations position that consideration of tribal input applies both ways, as cultural resources must be balanced in multiple use and multiple usage must not be completely excluded from cultural resource sites. The Organizations submit that the GJFO applies cultural resource concerns in a manner consistent with a trustee and has simply ignored that decisions must be made on multiple-use principles and a complex framework of legal responsibilities.

The Organizations submit that the position of the Council on Environmental Quality (“CEQ”) in recently released guidance documents for cultural sites is highly relevant to this appeal. Newly released CEQ guidance documents provide the following statement:

“Traditional cultural landscapes describe an area considered to be culturally significant. They can and often do embrace one or more of the property types defined in the NHPA: districts, buildings, structures, sites, and objects. It is important to note that the challenges associated with the management of such sites, and their potential size, do not excuse the consideration of their significance.11

It is the Organizations position that challenges in site specific management can no more justify the ignoring of cultural resources in multiple use planning as it can justify the exclusion of all multiple uses from cultural resource areas. Again, the Organizations submit that the GJFO RMP manages cultural resources as a trustee would manage a trust rather than a balanced interest in multiple usage as directly evidenced by the fact that the only sites released from further management were either sold by BLM previously or destroyed by fire.

4a(i). Information regarding ineligible historical sites has been illegally withheld from the public in the GJFO process and the FRMP must be reversed.The Organizations submit that there is a preliminary evidentiary question of law for this tribunal to resolve prior to proceeding to the substantive claims in the appeal, which is

“How may a NEPA review be confirmed when inventory information that must be provided to the public for 966 sites that are subject to mandatorily closure has been claimed to be confidential?”

The Organizations submit that as a matter of law the 51% of the possible cultural sites identified as “ineligible for listing” on the National Register (966 of 1,854 sites identified) are no longer subject to confidentiality provisions of a §106 designation. Rather as a matter of law, inventory information regarding ineligible sites must be released to the public and simply has not been released. The continued illegal withholding of this information has materially and directly impacted the Organizations ability to meaningfully comment or review the proposed mandatory closures any routes that have been lost due to possible cultural resource issues. The Organizations vigorously assert that the agencies must not be allowed to flagrantly disregard regulations waiving claims of confidentiality to avoid the public review process of NEPA and then hide behind claims of confidentiality on appeal. Such a position is both illegally and morally reprehensible.As a matter of law, the confidentiality provisions of a §106 review are ineligible to sites that are found ineligible for listing on the National Register of Historic Places and are being addressed in the NEPA process. The Organizations vigorously assert that determining a site is “not eligible” for management renders the site outside the protection of §106 as information must be disclosed in the public process of analysis of multiple uses under NEPA. Under historic preservation laws, the release of information regarding the determination that a site is “ineligible” for listing is mandatory. These regulations specifically provide:

(1) No historic properties affected. If the agency official finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them as defined in § 800.16(i), the agency official shall provide documentation of this finding, as set forth in § 800.11(d), to the SHPO/THPO. The agency official shall…. make the documentation available for public inspection prior to approving the undertaking. (i) If the SHPO/THPO, or the Council if it has entered the section 106 process, does not object within 30 days of receipt of an adequately documented finding, the agency official’s responsibilities under section 106 are fulfilled.12

The illegal withholding of additional information on sites not eligible for listing on the National Register has directly and materially impacted the Organizations ability to comment at the site specific level. §106 experts clearly identify the scope of the §106 process and confidentiality in relation to continued analysis of sites under NEPA as follows:

“You may, of course, come out of the identification process having found nothing that’s eligible for the National Register. In this case, you determine that no historic properties will be affected and give the SHPO/THPO and other consulting parties thirty days to comment, and if the SHPO/THPO does not object within that time, your through with Section 106 review. You may have to deal with ineligible properties under NEPA or other laws, but section 106 review is done.”

Representatives of the Organizations have repeatedly and vigorously requested supporting documentation to address the basis for mandatory closures of all historical sites, even those 966 sites found ineligible for listing on the National Register in the GJFO planning process. These requests have taken many forms, including formal FOIA requests. When these written requests were declined based on confidentiality and predecisional documents claims, the Organizations sought to obtain information in a more informal manner, such as requesting on site visits with staff to trails in historic areas during quarterly meetings with the GJFO. The Organizations submit that the information on historical sites was not predecisional as the §106 process is entirely separate from NEPA and concludes with determinations regarding eligibility of sites as a matter of law. Even these informal site visits have been declined due to confidentiality issues.

The Organizations submit that additional documentation addressing eligible sites could have been easily redacted from the complete inventory of cultural sites to remove confidential information regarding eligible sites and significant additional information regarding ineligible sites could have been provided to support the mandatory closures of areas in the NEPA process that were found ineligible for listing. The GJFO chose not to proceed in this manner and instead chose to create a simplistic summary worksheet in violation of regulations requiring the release of this information. The Organizations vigorously assert that the fact pattern in the Block decision, discussed subsequently, precludes this type of summary worksheet and withholding of underlying inventory information.

The Organizations submit results in the application of §106 confidentiality provisions in a manner that allows continued claims of confidentiality for ineligible sites is a direct violation of federal law. The Organizations vigorously assert this illegal withholding of information has directly and materially impaired the ability of the public to undertake site specific comments on route closures based on cultural resource concerns. The Organizations are simply unaware of any provisions outside §106 that provide for unilateral claims of the confidentiality of sites or artificial limitations on the scope of review by agency in the NEPA process. Such a position would directly conflict with one of the foundational hallmarks of NEPA analysis, mainly a full and fair public process of the agency decision making process regarding mandatory closures around cultural sites. The Organizations further submit that mandatory balancing of usages regarding closures of ineligible sites simply cannot be legally sufficient in a multiple use balancing decisions with evidence provided in Appendix I of the FRMP. That information is routinely limited to descriptions of “open lithic” or “open camp” that “needs data or assessment” for sites that are ineligible for listing. These descriptions are additionally insufficient to justify the limited range of management alternatives that are provided for sites that are ineligible for listing.

The Organizations further submit that the prejudice to the public resulting from the illegal assertion of confidentiality cannot be mitigated by an in camera review of the documents with the court to review the basis and scope of redaction of information. There simply has been no information provided to review in this manner and undertaking such a review would be a violation of the mandatory requirements of public disclosure of this information. The Organizations submit that failing to provide the basis for mandatory closures to all surface disturbing activities being imposed on the 966 sites found ineligible for listing is a reversible decision on appeal.

4a(ii). Analysis of cultural sites in order to balance multiple usages is highly site specific process.A large number of trash scatters, open lithics and open camps on the inventory making detailed site specific information and analysis highly relevant. The Organizations are aware of a wide number of trash scatters and open camp sites that have been excavated and inventoried in the GJFO planning area. As more specifically outlined later in this appeal, the results have not yielded information or resources that are wither important or significant, and as a result the Organizations submit that justification of closures of these areas is simply impossible as they are of limited value.

Cultural resource experts have provided the following outline of how to deal with these types of sites as follows:

“But of course there has to be a rule of reason. The scatter of beer cans along the roadside is not something that “might be eligible” – unless of course the road is pretty old and the people who drank the beer out of the cans were pretty important. Well where do you draw the line? As usual, it depends. Age is part of the answer. Last nights beer cans don’t plausibly make up a site that might be eligible for the National Register, but a scatter of cans from 75 years ago just might. Association is another factor. Your cans or mine don’t make an eligible site, but cans left by the first Vulcan expedition to Earth would be another matter. “13

Other experts have addressed this issue as follows:

“Good decisions about the importance of archeological data and about appropriate data recovery and analysis should be based on everything that we have learned to this time. Instead site significance and data recovery plans are too often treated as if these were the first sties of this type we have ever seen and the first ones we have dug. This means we end up not only reinventing the wheel but inventing the wheel over and over again.” 14

As both these national experts clearly identify, the fact that there are artifacts in an area, does not make it eligible for protection or management. The Organizations submit that these types of situations are exactly why the information regarding ineligible sites must be made public and why a balance of uses is important. Each site should not be treated as if it was the first site of this type ever identified. Unfortunately that is exactly the type of determination that has been made by the GJFO and must be reversed.

4b. Withholding of information on ineligible cultural sites is a per se violation of NEPA requirements.In addition to the withholding of specific information on the 966 ineligible sites directly violating historical preservation laws, such a position violates both the spirit and requirement of sufficient public involvement in NEPA analysis and relevant case law applying these NEPA standards. Courts have routinely reversed NEPA decisions when there is a failure to provide supporting documents for public review. Courts have also clearly stated that when agencies seek to provide a worksheet instead of the underlying documentation do so at their peril, such as the roadless area inventory worksheet that was reversed in the Block decision. The Organizations submit that the GJFO prepared exactly the type of worksheet Courts have found to violate NEPA in the analysis of cultural resources on the GJFO, despite mandatory requirements for release of all information on sites found ineligible for listing. This was done so at the GJFO peril and risk, and the Organizations submit this worksheet is facially insufficient as no additional information is provided between sites eligible for listing and those found ineligible for listing on the National Register. This violation has directly and materially negatively impacted the Organizations ability to address sites and routes on a specific level.

In a NEPA proceeding, education and involvement of the public as to the basis and process of analysis utilized by the agency for decisions is one of the hallmarks of the proceeding. The Organizations submit that public involvement as a foundational principal in the NEPA process is woven throughout those regulations to such a degree as to make specific citation to each provision impossible. However, the Organizations submit that there are two specific provisions of the NEPA regulations that directly relate to the proper levels of public involvement in agency documentation as to warrant specific discussion. NEPA provisions specifically address the need to make related agency materials available for public review as part of the NEPA process. These provisions explicitly and clearly provide:

“If another decision document accompanies the relevant environmental documents to the decision maker, agencies are encouraged to make available to the public before the decision is made any part of that document that relates to the comparison of alternatives.”15

NEPA regulations further specifically address underlying documents and the broader scope of disclosure of these documents in the NEPA process as follows:

(f) Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed action. 16

Courts reviewing NEPA analysis where critical inventory information has been withheld have uniformly held not only EIS, but also the data and documents on which EIS rely, must be available and accessible to the public. If such materials are not readily available to the public, an agency is barred from invoking them in Court in defending the adequacy of the analysis and that failure to disclose this information is a reversible error under general NEPA analysis. The Courts have explicitly stated in matters addressing the intentional withholding of supporting documents in the NEPA process that:

“Second, in any event we conclude that the worksheets cannot be fairly considered as part of the RARE II Final EIS. It is settled in this circuit that any supporting data or studies expressly relied upon in an EIS must be “available and accessible” to the public. Trout Unlimited, Inc., 509 F.2d at 1284. The WARS worksheets, however, are scattered all over the country in various Regional Foresters’ offices, dooming any practical attempt to review comprehensively the worksheets. Given this inaccessibility, the worksheets may not be considered in determining the RARE II Final EIS’s adequacy. “17

The Organizations submit that the Courts have had numerous opportunity to review summary worksheets prepared in the NEPA process for the public, similar to the Block Court determination above. The Courts have strictly required that in NEPA all underlying documentation to the determinations outlined in a worksheet must be made public, despite the worksheet being developed. The burden to release information is made higher with the GJFO inventory as in addition to the public process required by NEPA, relevant regulations specifically require the release of all information on sites found ineligible for listing on the National Register.

The Organizations would be remiss if the similarity of the summary outline of decisions made in the roadless area inventory situation overturned in the Block Court decision and the GJFO handling of cultural resources inventory were not addressed. In both matters, site specific inventory information was withheld in favor of a worksheet style scoring summary of factors being provided to the public to outline the factors alleged to be used in balancing usages in the NEPA process. The Block Court decision directly addresses this policy as follows:

“Second, little explanation is given to justify the numerical values given these variables. The Final EIS, for instance, offers no explanation of how resource output levels were assigned to each area. The EIS states that the levels “may appear to have been arbitrarily selected but, in fact, represent a realistic establishment of acceptable resource trade-offs to provide various alternative approaches.” RARE II Final EIS at 21. The Final EIS, however, does not explain what the trade-offs were or why they were considered acceptable or realistic. California v. Bergland, 483 F.Supp. at 490. Rather than utilizing the Final EIS as an instrument for airing the issue of resource demand, the Forest Service instead shrouded the issue from public scrutiny behind the claim of administrative expertise.”18

The Organizations submit that as further information regarding the nature of ineligible cultural sites simply is not confidential, as the Agency completely lacks authority to unilaterally assert privilege in a NEPA proceeding, which is clearly stated in Federal Law. The GJFO has asserted the same administrative expertise in their worksheet as was found insufficient in the Block decision and intentionally withheld underlying information on cultural sites. This withholding of information is made even more egregious that the situation in the Block decision by the fact that all information regarding ineligible sites must be released to the public under federal law.

As a matter of law, GJFO is now precluded from relying on any illegally withheld information to substantiate the basis for their decisions to preclude all usage of the 966 sites found ineligible for listing on the National Register. The Organizations vigorously assert that when the entirety of evidence to support the mandatory closures of any area and artificially limited range of Alternatives for the management of ineligible areas under multiple use tenants is “open camp” or “open lithic” that “needs data or assessment” , such a position is insufficient as a matter of law. The Organizations submit the unilateral and illegal decision to continue to treat ineligible sites as confidential directly evidences the priority position that these sites have been continuous provided in the NEPA balancing of multiple uses. The Organizations vigorously assert that the illegal withholding of information regarding ineligible sites has materially and directly impaired the public’s ability to comment on the decision making process and address site specific issues on appeal.

As no information regarding cultural sites has been provided under an illegal assertion of confidentiality, the agency must be precluded as a matter of law from relying on any additional documentation to support management of these sites. Such reliance would be a direct violation of NEPA requirements. The Organizations submit that this preclusion applies to all phases of review, including a possible in camera review of evidence by the Court. The Organizations submit that the continued application of confidentiality claims under §106 to ineligible sites is a violation of NEPA planning requirements of a full and fair public involvement in the decision making process. The Organizations submit that any additional documentation on this issue is precluded from the administrative record as a matter of law and that as a matter of law both the decision to apply mandatory closures and a limited range of alternatives for management of these sites are unsustainable under multiple use management requirements. The Organizations submit the ROD and related documents must be reversed, multiple usages rebalanced for these areas and all information relied on in this process made available to the public for review. Again, the ROD must be reversed and returned to the Field office for a full and fair public process to be provided regarding the areas ineligible for listing on the national register and a proper review of multiple usage of all areas.

5a(i). The mandatory exclusion of all surface disturbing activities from cultural sites directly conflicts with national BLM standards which identify benefits of a designated trail system.The Organizations vigorously assert that the determination that all cultural resources will be managed as a trustee would manage a trust rather than in compliance with multiple usage mandates has directly impacted the range of alternatives for site specific management that were provided to the public. The Organizations submit this failure is arbitrary and capricious and a per se violation of NEPA planning requirements and has limited the range of alternatives available for particular sites. CEQ regulations specifically address the proper range of alternatives in a NEPA analysis as follows:

“§ 1502.14 Alternatives including the proposed action. This section is the heart of the environmental impact statement. Based on the information and analysis presented in the sections on the Affected Environment (§ 1502.15) and the Environmental Consequences (§ 1502.16), it should present the environmental

impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decision-maker and the public. In this section agencies shall:
(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.
(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.”19

Newly released CEQ guidance documents address the relationship of NEPA and proper satisfaction of the informational requirements and historic preservation statutes clearly identify the range of alternatives and data quality for cultural resources to be provided in an EIS as follows:

“The CEQ regulations require agencies to describe the environment, including cultural resources, likely to be affected by the proposed action and alternatives, and to discuss and consider the environmental effects of the proposed action and alternatives, so decision makers and the public may compare the consequences associated with alternate courses of action. Data and analysis vary depending on the importance of the impact, and the description should be no longer than necessary to understand the effects of the alternatives, with less important material summarized, consolidated, or referenced.”20

The Organizations are deeply concerned that the FRMP addressed cultural resource protection by adding 15 new standards for the management of these areas. 21 These 15 new standards are exactly the same for every alternative, causing the Organizations to believe there was simply no intent to balance usages, as there was 45 different opportunities to balance usage and none were ever taken. The GJFO standards simply manage these areas as trustee would manage a trust. At no point is there any language that even references possible flexibility for balancing of multiple uses in the GJFO standards in order to account for cultural sites that were not eligible for listing on the National Register or might otherwise be of less value. Rather the GJFO simply treats each site as if it were exceptionally high value and without other usages, and fails to provide the public any information to address other usages at a site specific level.

The Organizations submit that there are clearly Alternatives for management of cultural resources that have not been explored in NEPA analysis, instead the determination was made early in the management process that cultural resources would be managed under standards of a trustee managing a trust rather than as a balanced usage. The Organizations further submit that proof of viable alternatives not being provided is directly evidenced by the fact that cultural resource management standards in the GJFO FRMP result in the application of standards that Congress has specifically determined are not appropriate for cultural sites, such as mandatory closures around routes and are simply unrelated to the historical usage of the site. The Organizations are again unable to appeal this issue at the site specific level as no information has been provided to the public regarding how management decisions were made or the locations of routes that were closed due to cultural resource concerns.

The Organizations submit that the limited range of alternatives provided for the management of OHV travel in association with cultural resource sites in the GJFO RMP becomes immediately apparent when GJFO management is compared to national BLM guidance for the use of OHV’s in association with possible cultural resource sites. The national BLM guidance issued to supplement manual 8110 provides for a wide range of management alternatives to allow for continued OHV usage around these areas. 22 The Memorandum starts the analysis by identifying categories of usage that are outside the cultural resource management issue as follows:

Potential for Adverse Effect: The potential effects of proposed designations differ according to the extent of anticipated change in OHV use.

A. Proposed designations that will not change or will reduce OHV use are unlikely to adversely affect historic properties and will require less intensive identification efforts. These include designations that (1) allow continued use of an existing route; (2) impose new limitations on an existing route; (3) close an open area or travel route; (4) keep a closed area closed; or (5) keep an open area open.”

Given that 40% of the GJFO remains managed as an open riding area designation and clearly there are routes that could be kept open, the Organizations submit that there are clearly alternatives that could have been developed to preserve access. No site specific analysis or discussion is ever provided as to why these alternatives were found insufficient to protect cultural resource sites. Such an alternative would be highly viable in areas that lack data or are ineligible for listing on the National Register, which encompasses 78% of the sites identified in the inventory. The Organizations submit this complete lack of analysis is direct evidence of the determination that all cultural resources would be managed as a trustee managing a trust rather than as a balanced multiple use of public lands. The management alternatives provided in national BLM memorandum clearly could have been reflected under one alternative of the 15 new categories of management. This simply was not done.

In addition to the above landscape level discussion of alternatives for these areas, the Memorandum continues with an extensive discussion of the relationship of travel management standards to the value of the historic site and alternative that are available to avoid closure of the route. These provisions specifically provide:

“D. Development of Planning Alternatives: Selection of specific road and trail networks and imposition of other use limitations, should avoid impacts on historic properties where possible. In accordance with 43 CFR 8342, existing cultural resource information must be considered when choosing among the range of alternatives for the design of a planning area travel system, including the potential impacts on cultural resources when determining whether each of the routes or areas in a planning area should be designated as open, limited, or closed. Sensitive resource areas may be protected through rerouting, reconstruction, and new construction, limitations on vehicle type and time or season of travel, in addition to closure. Evaluation of routes or areas to be designated as closed to protect cultural resources may be based on existing inventory information and should not be postponed until additional information is acquired. ”

The Organizations submit that any position asserting mitigation of impacts by rerouting, reconstruction and limitations was not possible at all of the 1,894 sites identified in the inventory clearly lacks factual or rational basis. The Organizations submit that the complete lack of factual basis in such an assertion clearly evidences that alternatives that were available and simply never provided for public comment or analysis for reasons that are unclear. The Organizations are not able to address these impacts at the site specific level as this information simply has not been provided to the public in violation of a wide range of federal statutes. Again the BLM must not be allowed to illegally claim confidentiality, limit alternatives and then assert that appeals are insufficient.

5b(i). Determining the proper scope of protection and implications to multiple usages in the GJFO ROD simply cannot be addressed as 78% of sites need data or are ineligible for listing.As more specifically addressed later in this appeal, the impacts of economic contributions flowing from spending and jobs was expanded by more than 7 times from draft to final versions of the RMP, yet no explanation of why the allocation of cultural resources was not impacted by this change has even been attempted. The Organizations submit that even without this change the lack of alternatives for management of possible cultural sites is immediately apparent when the allocation of sites to use categories and eligibility of sites is reviewed. Every alternative in the draft and final EIS had the same management standards associated with usage categories. These usages are summarized as follows:

Use Category Mandatory closure # of sites in Draft # of sites in Final
Scientific 100m 1,574 1,574
Conservation 100m 4 4
Traditional 200m 135 135
Public usage 100m 95 95
Experimental n/a 79 79
Discharge n/a 7 7
TOTAL 1,874 1,874

While the analysis of possible usages of cultural sites is clearly highly site specific, as noted by experts previously in this appeal, at no point is there a change in any portion of this allocation throughout the public process. The Organizations are again unable to appeal the placement of any site in a particular use category as this information has simply never been provided to the public. The Organizations submit that this consistency of usage allocation is again direct evidence that the public was simply never provided the necessary information on site specific issues that might arise in the uniform management of these sites.

After a summary of the eligibility analysis in appendix I is prepared, additional basis for concern regarding the limited range of alternatives becomes immediately apparent as 78% of sites are identified as ineligible for listing, needing analysis or needing data. That summary of appendix I eligibility provides the following conclusions:

Eligibility of site for Listing Draft Final
Actively on National Register 3(.1%) 3 (.1%)
Possibly eligible for listing 398 (21%) 398 (21%)
Lacking data/assessment 520 (27%) 520 (27%)
Not Eligible 966 (51%) 966 (51%)
Released from further 7 (.3%) 7 (.3%)
Total 1,894 1,894

These eligibility criteria in no way relate to the classification of usage, again causing the Organizations to submit that the lack of data in no way was addressed in planning and has precluded public comment on site specific issues. Clearly the lack of data or ineligibility would warrant a higher percentage of these sites being in lower protection areas if balancing of usages had occurred. That simply did not happen. There simply can be no comparison of impacts from various management alternatives, as none have ever been provided despite the fact that 78% of sites have been identified as ineligible for protection on the National Register or completely lacking data for analysis. As 78% are lacking data or ineligible for listing there is a high degree of discretion in decision making that has been performed on these sites but no analysis or information has been provided to the public to provide insight into this process and how a proper balance of multiple usage was insured. Again, only 7 sites being released from management due to the impossibility of future management is a significantly different standard that a balanced approach to management of areas suitable for further management.

5b(ii). The scope of what a surface disturbing activity encompasses is simply never defined, making meaningful site specific analysis impossible.The offensive lack of information provided to the public regarding the management of cultural sites is not limited to just site specific geographic information. Basic management standards for these areas simply are never defined in the ROD and related documents. The Organizations are aware that these terms have been used in Sage Grouse management, but the scope of the term has been the basis for vigorous discussion between BLM and the public. The Organizations submit that any expectation of public comment and meaningful analysis is without factual basis when the proposed management standards are not discussed. While 78% of sites simply have no data or are found ineligible for listing, all sites is subjected to a minimum 100m exclusion of all surface disturbing activity,23 135 sites are governed under a 200m mandatory closure to surface disturbing activity.24 While the term surface disturbing activity is critical to understanding the closures, the term “surface disturbing activity” is simply never defined in the GJFO RMP, causing further concern about the ability to consistently address impacts from management at the site specific level. How can there be any argument that usages were balanced for these areas when the plan completely fails to define for the public what is and what is not a permissible usage?

While the term surface disturbing activity is not even defined in the GJFO RMP, the term “surface disturbing activity” is the basis for active and vigorous discussions in Sage Grouse management, which relies on the following definition:

Surface-disturbing activities. An action that alters the vegetation, surface/near surface soil resources, and/or surface geologic features, beyond natural site conditions and on a scale that affects other public land values. Examples of surface disturbing activities may include: operation of heavy equipment to construct well pads, roads, pits and reservoirs; installation of pipelines and power lines; and the conduct of several types of vegetation treatments (e.g., prescribed fire, etc.). Surface disturbing activities may be either authorized or prohibited.”25

The Organizations are forced to assume that a similar standard has been developed for site specific cultural resource management but at no point is this term defined. NEPA requirements mandate that basic information such as this be provided to the public. Federal law has mandated protection of historical sites only if they are significant or important, and as a result mandates some type of site specific review on at least these issues before management standards can be determined. While additional sites may be managed under agency discretion, all management decisions must be balanced as a multiple usage of public lands and not as a trustee would manage a trust. The failure to balance multiple use in proposed cultural areas simply cannot be accurately addressed in this appeal/protest as much of the information needed to create a meaningful appeal/protest on this issue has simply been withheld. The failure to provide this information makes any appeal of specific impacts from the limited range of alternatives impossible. The Organizations submit that a designated trail system in these areas would effectively mitigate impacts to lesser important sites and make complete closure unnecessary, but such a site specific mitigating factor cannot be explored because the necessary information has been withheld.

5b(iii). Management standards provide no flexibility to address localized geographic issues which will result in significant unintended economic impacts.The Organizations submit that the failure to balance multiple uses is also evidenced in the FRMP failure to provide any flexibility in management standards for localized issues. This lack of flexibility will cause the loss of opportunities in areas that are completely unrelated to the possible cultural sites, as many areas of the GJFO are exceptionally rugged and have limited areas where routes may be placed. While the access point to a large recreational area may be in a geographic bottleneck, opportunities that would be lost by closing the bottleneck would be significant as the bottleneck closure would result in the loss of opportunities beyond the bottleneck. In many areas of the GJFO trails are forced into canyon and river bottom areas due to geography and then continue on to access larger high value recreational opportunities beyond the canyon area. It is simply unreasonable to assert that localized access can be preserved if a cultural site is in the bottom of a canyon that is also the location of an important route using the canyon bottom to access other areas. Closure of the 100 or 200 meters around the site could block a route and preclude all access to a large areas of the GJFO that are miles from the cultural site for a huge number of activities. Again this situation directly evidences the failure to properly balance site specific issues as part of the multiple use process.

5c. Mandatory closures of all possible cultural sites conflicts with national objectives for the utilization of historical sites.The Organizations submit that the mandatory closures of all historical/cultural sites to surface disturbing activities in the GJFO RMP/ROD directly conflicts with management by other agencies in the Department of Interior for historical sites. The Organizations vigorously assert that such a programmatic conflict directly indicates that there are serious issues with the landscape level management decisions when they are applied at the local level. In contrast to the GJFO mandatory closures of all cultural sites to surface disturbing activity, the website for the National Register of Historic Places actively identifies 9,495 sites nationally that are vacant and solicits usage as these sites which may be an ideal location for your next home or business.26 The arbitrary and capricious nature of the GJFO management is immediately apparent when compared to these utilization efforts, as living in a property is probably a surface disturbing activity.

Further programmatic conflict results as National Trust for Historic Preservation provides links to specialized realtors who specialize in connecting homes on the National Register of Historic Places with potential buyers.27 The states of New Hampshire, Arkansas historic preservation offices facilitate the purchase of historic homes as primary residences. The Organizations would be remiss if they did not note that residing in a historic property is probably a surface disturbing activity and would now be prohibited under GJFO management standard. Again these programs directly evidence the kind of multiple use impacts that weigh heavily against imposition of blanket landscape level closures and the arbitrary and capricious nature of the determination that surface disturbing activities must be prohibited as there is a direct conflict with these programs and GJFO management.

6. GJFO management of cultural properties violates Federal law requirements of protection of sites that are important or significant.The Organizations believe the protection of significant cultural sites is an important planning criteria. While this is an important planning criteria, the Organizations are aware that all historical sites are not significant and cannot be saved for a variety of reasons. The requirement of “significance” is an important factor in determining the proper levels of management and analysis of historical sites in the planning process. This determination also significantly impacts the amount of information on a site that is made available to the public. The Organizations are completely unable to challenge the importance or significance of any site in the GJFO, as no information on this issue has been provided to the public in the analysis. The summary worksheet provided to the public again fails to address these criteria and fails to provide information sufficient to allow the public to review these findings.

Prior to addressing the facial violations of federal law that are present in the FRMP standards for cultural sites, the Organizations believe a review of relevant federal statutes is warranted as these statutes provide exceptionally clear management standards. Federal law governing cultural resources provides a general standard to address cultural resources as follows:

“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.”28

The Organizations again submit that §106 provides a vigorous inventory methodology to insure cultural resources are balanced in multiple usage decision making and provides no priority for these sites in the multiple use process. Pursuant to the rules and regulations promulgated under

§106, the “significance” of the cultural site and resulting eligibility of a site for designation on the National Register is a primary factor in determining if there is required management to be addressed in planning. The CFR provisions specifically provide:

“(c) Evaluate historic significance. (1) Apply National Register criteria. In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified properties and guided by the Secretary’s Standards and Guidelines for Evaluation, the agency official shall apply the National Register criteria (36CFR part 63) to properties identified within the area of potential effects that have not been previously evaluated for National Register eligibility. The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineligible. The agency official shall acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them. (2) Determine whether a property is eligible. If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes. If the agency official determines the criteria are not met and the SHPO/THPO agrees, the property shall be considered not eligible. If the agency official and the SHPO/THPO do not agree, or if the Council or the Secretary so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR part 63. If an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to a property off tribal lands does not agree, it may ask the Council to request the agency official to obtain a determination of eligibility.”29

The need for findings regarding the “significance” or “importance” of a site to trigger mandatory management of historical places are specifically outlined in the BLM manual in a manner that is consistent with federal law. The manual specifically states:

“E. The National Register Criteria. A district, site, building, structure, object, traditional cultural property, historic landscape, or discrete group of thematically related properties, that represents America’s history, architecture, archaeology, engineering, or culture may be eligible for the National Register. To be judged eligible, a property must possess integrity of location, design, setting, materials, workmanship, feeling, and association, and must meet at least one of the following criteria:

  1. Property is associated with an event or events that have made a significant contribution to the broad patterns of America’s history. (Corresponds to 36 CFR 60.4 criterion “a”.)
  2. Property is associated with the lives of persons significant in our past. (Corresponds to 36 CFR 60.4 criterion “b”.)
  3. Property embodies the distinctive characteristics of a type, period, or method of construction, or represents the work of a master, or possesses high artistic value, or represents a significant and distinguishable entity whose components may lack individual distinction. (Corresponds to 36 CFR 60.4 criterion “c”.)
  4. Property has yielded or may be likely to yield information important in prehistory or history. (Corresponds to 36 CFR 60.4 criterion “d”.)”30

While the lack of importance or significance does not preclude management, these factors clearly must relate to the level of management and usage of sites. Logically lesser significant sites would be allocated to usage categories with lower levels of protection, but in the GJFO planning process no information is provided on site specific importance as all sites are subjected to mandatory management.

The Organizations believe the GJFO has completely erred in its determination that every site now and in the future will satisfy the “significance” factor and permit additional management. As previously noted the findings of significance in the GJFO planning process are deeply inconsistent with the findings of significance by outside reviewers in the State of Colorado. No information is provided regarding the nature or location of cultural sites due to confidentiality requirements making any analysis difficult, if not impossible. Furthermore existing recreational usage of several sites is identified but not accounted for in planning.

The limited site specific summaries (95 of 1,894) directly evidence an overly broad application of protection for sites that are neither significant or important including:

  • old road and rail beds;
  • recorded telegraph lines and abandoned power lines;
  • irrigation ditches on adjacent private lands;
  • buried pipes and abandoned irrigation ditches;
  • fences of unknown origin;
  • two track roads of unknown origin and trails

The flagrant disregard for federal law and balancing multiple usage exhibited by these standards is simply astonishing and completely lacks factual or logical basis, as directly evidenced by the fact the GJFO plans to protect more site in the Field Office than are currently on the national register for the entire state of Colorado and three times as many sites as are currently in Washington DC. This standard also fails to address that many cultural experts in and around Grand Junction admit that many of these marginally significant historical sites will simply never be excavated, as specifically noted in the sections of this appeal addressing wickiups. The Organizations believe that the lack of funding for such excavations is evidence of the lack of belief these areas will yield significant archeological information.

The Organizations are aware there is no mandate that a site be eligible for listing on the National Register of Historic Places in order to be managed as a historical site, however the ineligibility of a site for protection must be addressed in planning. Tables I-2 through I-7 of the cultural resources appendix specifically conclude most sites to be managed for scientific values related to cultural issues are found “not eligible” for inclusion on the National Register. Only 398 of 1,894 (21%) are found possibly eligible for listing. The fact that 78% of sites were identified as not eligible or needing data weighs heavily against the levels of closures that are proposed. As previously noted only 7 of the 1,894 sites inventoried were found not to need additional management as a result of their destruction or sale. Again a review of the suitability for management based on multiple usage cannot be based on the exclusion of the site from management only because it was destroyed or sold and impossible to manage.

7a. Proposed management of all cultural sites in a manner similar to a trustee fails to address impacts of previous management in violation of federal law.The Organizations vigorously assert that the FRMP cultural management standards again violate Federal law, as the management of all possible sites as a trustee completely fails to address impacts of previous management decisions and impacts to cultural resources that may have resulted from these management decisions. The Organizations submit that the impacts of previous management decisions has directly and significantly impacted the scale and quality of cultural sites that remain on the GJFO. As a result of previous management decisions, it is entirely possible that some percentage of the 1,894 sites now sought to be managed for cultural resources was previously inventoried and found unsuitable for additional management. This type of a determination would be highly relevant to the current management changes, but again the public cannot address these site specific issues because they are not provided the necessary information.

The FRMP proposes to protect 236 times the number of sites and more than 5x the number of acres for cultural sites as was identified in the 1985 RMP and 40% of the GJFO Field Office remains governed by an open riding designation for travel management. The Organizations are unable to find any information regarding the quality of the 1,894 new sites and how these sites have been previously managed in terms of travel management. Again, these site specific issues cannot be addressed by the public as all information on these issues has been withheld.

The Organizations submit that any assumption that previous management decisions have not significantly degraded these sites would lack factual or legal basis as there is no evidence to prove these areas were not reviewed previously and found unworthy of protection. Again the GJFO determination to manage all possible cultural sites as a trustee violates Federal laws mandating that the site specific management history of each cultural site must be addressed in new resource management, which specifically provides:

The agency official shall take into account past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects.”31

The need for site specific analysis of the management history of each site to address possible impacts of previous management decisions as part of the management of cultural sites is again repeatedly addressed with far more specificity in the BLM NEPA handbook. The NEPA handbook specifically provides as follows:

“Scientific, cultural, or historical resources, including those listed in or eligible for listing in the National Register of Historic Places (40 CFR 1508.27(b)(8)). This factor represents a specific sub-set of the factor, “unique characteristics of the geographic area.” Significance may arise from the loss or destruction of significant scientific, cultural, or historical resources. For resources listed in or eligible for listing in the National Register of Historic Places, significance depends on the degree to which the action would adversely affect these resources.”32

The BLM cultural resources manual specifically address the need to address possible site specific impacts of previous management decisions in several other locations as follows:

“(5) The human uses of the land and resources through time, as evidenced in the prehistoric and historic record, and the ways that this knowledge of successful and unsuccessful past adaptations might apply to decision making for current land use proposals.” 33

The BLM cultural resources manual repeats the site specific nature of this standard as follows:

“d. Environmental Factors. Past and present environmental factors important for understanding the study area’s prehistoric and historic human use and occupation, as well as factors affecting preservation, are discussed. Factors are those that describe the geographic system of the study area:
….. (6) The effects of human activity.
(7) The effects of time.
The factors are treated in terms of a dynamic, interactive system, and single-factor analyses are avoided.”34

As repeatedly and specifically noted in the BLM cultural resources manual, the proposed management standards are required to address how the precluded action or usage would adversely impact the specific resource to be protected at the site. This type of analysis can only occur at a site specific level and would normally be within the scope of appeal at this stage. This cannot occur as all information has been illegally withheld.

In the 1985 RMP, which is being replaced, all cultural resources are managed as follows:

“Cultural Resource Management – Eight sites covering about 11,600 acres would be actively managed as high value cultural resources. Active management includes inventory, stabilization, and protection from surface-disturbing activities.”35

The Organizations believe the requirement of site specific analysis of impacts resulting from previous management decisions is a major hurdle to the decision to management cultural sites as trustee, as closures simply will never improve a previously damaged cultural resource and allow for analysis in the future. The FRMP fails to account for possible impacts from previous management standards regarding the 1,894 sites now sought to be managed as cultural sites. The Organizations submit that any position asserting that previous management has not degraded these sites would lack factual or legal basis and would be arbitrary and capricious as a matter of law. The Organizations are unable to raise these site specific concerns as the locations of all sites are not made available to the public and at no point is the previous management of these areas addressed.

Given that 42% of the GJFO is currently managed under an open riding designation, the Organizations are directly opposed to the closure of any area currently managed as an open riding areas for cultural issues. This management decision clearly may have impacted cultural sites previously and must be accounted for now. While it is unfortunate that previous inventory of cultural resources did not identify these possible resources as management issues, it does not alter the current status and lack of importance of these sites. In 1985 the GJFO analysis concluded these sites were marginal and not significant. These are areas where moving to a designated route system represents a viable management alternative that provides for a more balanced usage. Closing any area will simply not bring back resources that may have been lost due to previous inventory and management issues. Again these site specific issues cannot be addressed as no information has been provided to the public.

8a. There is simply no relationship between the proposed closure of several historic sites and the historic usage of the site.The Organizations submit that the application of mandatory closures to all historical sites fails to address the historical nature and usage of each site and yields site specific management that are arbitrary as a matter of law and completely lacking any logical basis. The BLM cultural resources manual repeats the need to address the full history of the site and how it relates to any management standard proposed as follows:

“d. Environmental Factors. Past and present environmental factors important for understanding the study area’s prehistoric and historic human use and occupation, as well as factors affecting preservation, are discussed. Factors are those that describe the geographic system of the study area:
….. (6) The effects of human activity.
(7)The effects of time.
The factors are treated in terms of a dynamic, interactive system, and single-factor analyses are avoided.”36

The limited site specific summaries (95 of 1,894) directly evidence an overly broad application of mandatory exclusion standards for protection for sites when compared to the historical usage.

  • old road and rail beds;
  • recorded telegraph lines and abandoned power lines;
  • irrigation ditches on adjacent private lands;
  • buried pipes and abandoned irrigation ditches;
  • fences of unknown origin; and
  • two track roads of unknown origin and trails

The Organizations submit that the mandatory closure of old roads, trails and rail beds to multiple use recreation is arbitrary and capricious as a matter of law as the mandatory closure interferes with the historical usage and basis for the value in the site. Again as the public has not been provided any additional information beyond that noted above, these site specific issues simply cannot be addressed.

The Organizations further submit that mandatory closures for recorded telegraph line interests and buried pipes is arbitrary and capricious as a matter of law. The Organizations are unsure what historical value a recorded interest could be present and how mandatory closure protects an interest that is merely recorded in the county clerks office. The Organizations further submit that mandatory closure of areas over buried irrigation pipes simply has no basis in law or fact.

8b. Wickiups are frequently relied on for the basis for mandatory closures despite the limited importance and seriously deteriorated nature of these sites.While wickiups are only mentioned briefly in the RMP, the Organizations believe that the management of these structures and associated areas is worthy of inclusion to address the lack of significance and importance of sites. This position is supported by the fact that there are a huge number of open camps or open lithics that are identified for mandatory closures moving forward. As noted previously in this appeal, beer cans do not make a site historic unless the people who drank the beer were very important or from the first Vulcan expedition to this planet. 37 The Organizations further submit that a review of this issue allows for concrete examples of locations where management alternatives represent real solutions for protection of sites that simply are never even reviewed in the RMP and that site specific review must be looked at as an impact of landscape level standard for cultural resource management.

While there is limited information on these sites, it is clear that many of these sites are not eligible for mandatory protection as religious or burial sites for Native American societies previously living in the area. The Organizations believe these structures have been the basis for significant closures to motorized access in the GJFO, as there are numerous references to open and sheltered camps in Appendix I of the FRMP. Given the exceptionally deteriorated status of these sites and open camp would be an accurate summary of the resource. The Organizationsvigorously assert most of the wickiup sites on the GJFO are wholly insufficient to support designation on the National Register of Historic Places, and the overall poor condition must weigh heavily against any closures of access in the vicinity of these sites as most people will see at most a pile of sticks or small logs on the ground and pay not further attention to the pile of deteriorating trees.

Wickiups are briefly outlined in the FRMP as follows:

“The following sites of concern have been identified through consultation and would be a priority for nomination to the National Register of Historic Places and development of cultural resource management plans that would outline specific management objectives and actions for protection:

  • Wickiup camps and open camps with definitive Ute occupation (associated to Ute rock art, artifact assemblages and/or trails);
  • Isolated rock art;
  • Culturally Modified Trees (includes Scarred and Prayer Trees); and
  • Ceremonial features (e.g., eagle traps, vision circles, and special structures).

This list is in no way intended to be a comprehensive list and may continue to grow through consultation.”38

The Organizations believe that a definition of a wickiup is very relevant to concerns regarding importance and significance and the balancing of multiple uses, as most of the public simply is not aware of what a wickiup even is. This is a site specific issue that again cannot be addressed as basic information has been withheld. A wickiup is defined as:

“temporary conical and domed shelters and other brush and wooden structures have been constructed for millennia by the aboriginal inhabitants of the colorado river basin, just as they have throughout the world. based on the premise that in all temperate and harsh-weather regions of the world shelters were highly desirable, even necessary for human survival, it is likely that a significant percentage of prehistoric campsites in colorado included temporary shelters.” 39

The Organizations believe that photos of a wickiup site are even more helpful in understanding what a wickiup site is as most people simply are not familiar with the term and are not able to form an accurate picture of what is being discussed from the definition. Often the public believes that wickiup sites are far more significant structures than they really are. The Organizations vigorously assert that neither one of the sites identified in the pictures are significant enough to warrant inclusion on the National Register of Historic Places, especially in their current deteriorated status. Given the sheer number of sites found on the GJFO, the Organizations believe these types of sites make up a large portion of the sites to be managed. Below is a well preserved Juniper Wickiup:

2015_0919_1.jpg40

This photo represents a “well preserved” but collapsed wickiup:

2015_0919_2.jpg41

Given these pictures of “well preserved” wickiups, merely identifying a wickiup can be a significant concern. The Organizations are aware there are multiple volumes published to address wickiup research, and the Organizations encourage managers to review these volumes as they provide a significant review of the deteriorated condition and limited value items that are frequently identified at wickiup sites. This concern has been specifically noted by wickiup researchers as follows:

“ Identifying wickiups can be a challenge. Partially intact structures with standing elements or collapsed structures with well-preserved poles in an obvious radial pattern are relatively easy to recognize. All that may be left of highly deteriorated structures, however, are one or two decayed poles on the ground, a pole or two leaning into a tree, or a concentration of weathered juniper splinters.” 42

The ability of researchers to even locate a wickiup site and accurately analyze the site has resulted in several examples being provided in analysis documents to allow wickiup sites to be located if pictures are taken by researchers. 43 In addition to be hard to locate, deteriorated wickiup sites often are simply not subjected to scientific review:

“Wickiup sites will most often be encountered during surface inventories and will only rarely be subjected to data recovery…..”44

As previously noted, the Organizations have serious concerns regarding the site specific significance analysis provided for proposed cultural sites on the GJFO, and these concerns are directly substantiated by the common findings after analysis of a wickiup site. Researcher’s findings at wickiup sites are summarized as:

“First, wickiup interiors should be examined for hearths as evidenced by fire- cracked rock, charcoal, or ash stains. Concentrations of juniper bark may be present, likely in highly deteriorated condition, representing floor covering, bedding, or clumps of fallen structure closing material …. Artifacts may be visible on the modern ground surface inside wickiups, including flaked and ground lithics, ceramics, metal and glass items, and beads. Finally, there may be hearth furniture such as large flat-topped stones that functioned as pallet stones, expedient tables, or bone-reducing anvils ….”45

A review of the items found as a result of excavation of wickiup sites finds many items interesting and probably not of significance from a large scale historical perspective. The following photo reviews items found after excavation of a wickiup site:

2015_0919_3.jpg46

The Organizations have to believe that the fact that most wickiup sites are not locatable by the public and probably will not be reviewed by scientists has to place these structures low on the priority list when compared with other multiple uses in the vicinity of the wickiup. Again these areas would be protected by the movement to a designated route system which would allow for a far more balance usage than that allowed under a mandatory closure standard as these are common sites not likely to reveal significant information.

The Organizations believe that management decisions, clearly made in violation of numerous planning statutes and federal law, similar to those outlined in this section have systematically plagued the GFJO FRMP development. The Organizations are simply not able to meaningfully comment on many of these site specific decisions as they are not discussed in the FRMP. Planners should not be able to make poor decisions and then benefit from their own failure to analyze or explain the basis for these decisions as part of a balancing of multiple usage.

9. Only one wickiup site is currently on the national register in Colorado.With the issuance of several grants, BLM has successfully developed a significant body of research regarding wickiups and the cultures associated with them. While the body of work that has been generated is very interesting, the work has not developed a large amount of support for the preservation of wickiups under more general historic preservation initiatives, such as state and federal registers of historical places. The Organizations have to believe that attempts to generate public support for protection of these sites may be difficult too. A review of the Colorado register of historic places reveals only the Duck Creek Wickiup Village in Rio Blanco County has been designated as a historic site.47 The Organizations have to note that this is a significantly refurbished location that simply is not comparable to the wickiups in the GJFO.

Given the sparse density of the wickiups in the Debeque area and on other areas of the GJFO, the Organizations have to question is sufficient concern regarding these structures to warrant development of management standards that effectively close thousands of acres to multiple usage for these structures in the FRMP. The Organizations have to believe that the generally unidentifiable status of most of the sites had to weigh heavily in the decision not to designate these areas as historically significant.

Wickiups provide a concrete example of an area that could be significantly preserved by moving to a designated trail system while preserving the benefit to local economies that results from recreational usage of the trail that is preserved. Motorized recreation has been addressed as a possible management concern for wickiup sites, however these concerns are specifically mitigated by the GJFO going to a completely designated trail system.

10. 68 trash scatters and dumps are identified in the inventory but no background information is provided to determine the site is important or significant.

The Organizations must express additional concern regarding the mandatory closures of all cultural sites identified as trash scatters and dumps. Again the position of nationally recognized experts on the proper management of these areas is the basis for direct concern about the balance of multiple usage on a site specific level. These experts specifically state:

“But of course there has to be a rule of reason. The scatter of beer cans along the roadside is not something that “might be eligible” – unless of course the road is pretty old and the people who drank the beer out of the cans were pretty important. “48

Again the Organizations are opposed to the mandatory closure of 68 sites on the FO based on a blanket determination that the roads are pretty old, and only important people left their trash in these locations. Such a position simply lacks any factual basis and would be more specifically addressed if the information was available to the public as required by federal law.

11. Recreational economics simply have not been balanced in cultural resource management standards.While the Organizations have serious concerns regarding the failure to properly balance multiple usage on the site specific level, the Organizations are even more concerned that serious recalculations of economic contributions and jobs from recreational activity was undertaken between the draft and final GJFO RMP. For reasons that remain unclear, the expansion of the economic benefits of recreation by a factor of seven was not sufficient to trigger any recalculation of the total number of cultural sites to be managed, categorization of these sites in their usage category or rebalancing of management standards associated with categories or alteration of usage at sites that are needing data or ineligible for listing. Not only is this a violation of multiple usage requirements, it is a per se violation of the higher standards of review that courts apply to agency determinations on economic benefits in the NEPA process. If the expansion of recreational spending to more than 7 times original estimates is insufficient to trigger any review, the Organizations have to question what the threshold for reviewing these classifications is.

The Organizations submit that a review of the legal standard for the review of economic issues applied by the courts to agency NEPA analysis is significantly more stringent than an arbitrary and capricious review of traditional agency decisions balancing multiple usage. The Courts have clearly stated the significance of economic benefits in planning as follows:

“Misleading economic assumptions can defeat the first function of an EIS by impairing the agency’s consideration of the adverse environmental effects of a proposed project. See, South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011- 12 (5th Cir.1980). NEPA requires agencies to balance a project’s economic benefits against its adverse environmental effects. Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1113 (D.C.Cir.1971). “49

The Organizations submit that any position that the expansion of recreational spending to more than 7 times original estimates would not impact cultural resource balancing is exactly the type of misleading economic assumption that must be overturned. The expansion of economic contributions and jobs from recreational activity in the GJFO planning area is significant and even more compelling when direct impacts are not summarized. The draft RMP summarizes the total recreational economic contributions to the Grand Junction planning area in 2029 as follows:

“Recreation would generate nearly $7.2 million in total spending, $4.4 million in total value added and 90 full-time equivalent jobs by 2029. Specific types of businesses in which spending occurred would be influenced by the type of recreational activities that the visitors participate in.” 50

In the FRMP significant additional information was reviewed to allow for a more accurate analysis of both local spending (Mesa and Garfield Counties) and out of region recreational spending. The FRMP provides the following analysis of recreational spending and recreational jobs from outside the planning region:

2015_0919_4.jpg51

 

Garfield and Mesa county based recreational spending and jobs was also specifically identified in the FRMP as follows:

2015_0919_5.jpg52

The FRMP concludes that 516 jobs are related to recreational usage of GJFO lands and more than $47.5 million in spending flows to the Colorado state economy. The Organizations would note this estimate remains significantly lower than the amount in many other research. When these amounts are totaled the change in both total spending and total recreationally related jobs is significant is staggering , as each category as expanded by almost 7 times the original estimates. While this expansion of recreational spending to 7 times its original value caused changes in many other multiple usages, cultural resource management simply did not change in terms of total number of sites to be protected or allocation of the sites to usage categories.

While the expansion of recreational economic contributions to more than 7 times original estimates caused changes in many other multiple usages, cultural resource management simply did not change in terms of total number of sites to be protected or allocation of the sites to usage categories. Every alternative in the draft and final EIS had the same management standards associated with usage categories. These usages are summarized as follows:

Use Category Mandatory closure # of sites in Draft # of sites in Final
Scientific 100m 1,574 1,574
Conservation 100m 4 4
Traditional 200m 135 135
Public usage 100m 95 95
Experimental n/a 79 79
Discharge n/a 7 7
TOTAL 1,874 1,874

After a summary of the eligibility analysis in appendix I is prepared, additional basis for concern regarding the limited range of alternatives becomes immediately apparent as 78% of sites are identified as ineligible for listing or needing data. That summary of appendix I eligibility provides the following conclusions:

Eligibility of site for Listing Draft Final
Actively on National Register 3(.1%) 3 (.1%)
Possibly eligible for listing 398 (21%) 398 (21%)
Lacking data/assessment 520 (27%) 520 (27%)
Not Eligible 966 (51%) 966 (51%)
Released from further 7 (.3%) 7 (.3%)
Total 1,894 1,894

The Organizations submit that the failure to balance multiple uses in cultural resource management is directly evidenced by the failure to change any aspect of cultural resource management after the economic contribution of recreation has expanded to more than 7 times its original estimate. Cultural resource management remained the single largest factor to be weighed in multiple usage process that caused route closures. The Organizations submit such a position directly violates the courts requirement that misleading economic assumptions must not be relied on in the NEPA process.

13. Conclusion.The Organizations submit that cultural inventory site specific information has been illegally withheld for the 966 sites that are found ineligible for listing on the National Register, as relevant Federal law provides this information must be fully released to the public after a finding of ineligibility. The Organizations further submit that the inventory that has been provided is facially insufficient to balance multiple uses at any site with mandatory closures for sites that are often only identified as open camps needing data. This lack of site specific data has specifically materially prohibited the Organizations ability to appeal any of these issues at the site specific level. The Organizations submit that they remain wholly unable to locate any of the sites that are to be closed. The Organizations submit that rather than utilizing the Final EIS/ROD as an instrument for airing the issue of resource demand, the BLM instead shrouded the issue from public scrutiny behind the claim of administrative expertise. This expertise was incomplete at best as the decision directly conflicted with federal laws requiring release of inventory information on sites found ineligible for listing. The Organizations submit that similar imbalances of usages exist at many other cultural sites and simply have been hidden from the public under illegal claims of confidentiality.

It is the Organizations position that the analysis of site specific issues with cultural resource management under NEPA is insufficient, is arbitrary and capricious as a matter of law and fails to provide the hard look at issues mandated by NEPA. Additionally the proposed management of cultural resources fails to properly balance multiple use management standards with the protection of cultural resources, as the RMP seeks to manage possible cultural sites as a trustee would manage a trust rather than as a balanced multiple use of public lands. The Organizations submit that the closure of sites created by surface disturbing activities from further surface disturbing activities simply is arbitrary and capricious.

The Organizations are submit that massive recalculations of economic contributions and jobs from recreational activity was undertaken between the draft and final GJFO RMP. For reasons that remain unclear the expansion of the economic benefits of recreation by a factor of seven was not sufficient to trigger any recalculation of the total number of cultural sites to be managed, categorization of these sites in their usage category or rebalancing of management standards associated with categories or alteration of usage at sites that are needing data or ineligible for listing. Not only is this a violation of multiple usage requirements it is a per se violation of the higher standards of review that courts apply to agency determinations on economic benefits in the NEPA process. If the expansion of recreational spending to more than 7 times original estimates is insufficient to trigger any review, the Organizations have to question what the threshold for reviewing these classifications is.

The Organizations submit that the RMP/ROD must be returned to the FO and public input must be undertaken after all necessary information has been released to allow for meaningful public input. Please feel free to contact Scott Jones at 518-281-5810 or via email at scott.jones46@yahoo.com or via USPS mail at 508 Ashford Drive, Longmont, CO 80504 for copies of any documentation that is relied on in this appeal or if you should wish to discuss any of the concerns raised further.

 

Respectfully Submitted,

Scott Jones, Esq.
COHVCO/TPA Authorized Representative
CSA President

Don Riggle
Director of Operations
Trails Preservation Alliance

 

 

1 See, Baltimore G& E Co v. NRDC; 462 US 87 (1983) at pg 98.

2 Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 F3d 437 at pg 442; 42 ERC 1594, 26 Envtl. L.

Rep 21276.

3 See, Hughes River Supra note 2 at pg 442 .

4 See, Hughes River, Supra note 2 at pg 442.

5 See, Section 1 of the National Historic Preservation Act, Pub. L. No. 89-665, as amended by Pub. L. No. 96-515 generally Title 54 of the United States Code

6 See, 54 USC 300101

7 See, 43 USC §1701

8 See, 16 USC §470kk(a)

9 See, BLM Manual 8120.1B

10 See, BLM Manual 8100. 06C

11 See, Council on Environmental Quality- Executive Office of the President and Advisory Council on Historic Preservation; NEPA and NHPA- A handbook for integrating NEPA and Section 106 (March 2013) at pg 23.

12 See, 36 CFR 800.4(d)

13 See, Thomas F King; Cultural Resource Laws and Practice; 4th Edition 2013 Altamira Press at pg 138.

14 See, Jennifer Richman et al; Legal Perspectives on Cultural Resources; 2004 Rowan and Littlefiled Publishers; at pg 11.

15 See, 40 CFR 1505.1(e)

16 See, 40 CFR 1506.6(f)

17 See, California v. Block, 690 F.2d 753, 765 (9th Circ, 1982) ; See also, Trout Unlimited v. Morton, 509 F2d 1276,

1284(9th Circ 1974).

18 See, Block at 767.

19 See, 40 CFR 1502.14

20 See, Supra note 9 at pg 16.

21 See, FRMP at pgs 2-134 to 2-136

22 See, BLM Instruction Memorandum No 2007-030; Clarification of Cultural Resource Considerations for Off Highway Vehicle (OHV) designation and travel management; Program areas: Cultural resources; Recreation; Planning ; Dated December 15, 2006 A copy of this memorandum is available here http://www.blm.gov

23 See, FRMP page 2-130-

24 See, FRMP pages 2-132

25 See, DOI, BLM Northwest Colorado Greater Sage-Grouse Draft LUPA/EIS August 2013 at pg 1027

26http://www.nationalregisterofhistoricplaces.com/

27http://historicrealestate.preservationnation.org/

28 See, 16 USC §1780f.

30 See, BLM Cultural Resources Manual 8110 at 8110.32E.

31 See, 36 CFR Part 800.4 (b)(1).

32 See, BLM NEPA Handbook 1790-1; January 2008 at pg 73.

33 See, BLM Cultural Resources Inventory Manual- Manual 8110 @ 8110.21a(5).

34 See, BLM Cultural Resources Inventory Manual- Manual 8110 @ 8110.21a

35 See, DOI BLM, Grand Junction Resource Area; Resource Management Plan and Environmental Impact Statement (November 1985) at pg 8.

36 See, BLM Cultural Resources Inventory Manual- Manual 8110 @ 8110.21a

37 See, Thomas F. King, supra note 6.

38 See, FRMP 2-136.

39 The Colorado Wickiup Project- Volume I- Context Data Assessment and Strategic Planning ; Domingez Archelogical Research Group Inc; at pg 3.

40 Id photographic plate at pg 56.

41 Id – photographic plate at pg 70.

42 Rand A. Greubel, Strategies and Methodologies for Investigating Wickiup Sites; Presented at the Colorado Council of Professional Archaeologists Annual Meeting, March 5, 2005, Grand Junction, Colorado; at pg 1.

43 See, Colorado Wickiup Project supra note 158 at pages 64-69.

44 See, Gruebel supra note 161; at pg 2.

45 Id.

46 See, Martin et al; The Colorado Wickiup Project Volume V: Test Excavation of The Ute Hunters’ Camp (5RB563) and the Documentation of Five Additional Aboriginal Wooden Feature Sites in Rio Blanco County, Colorado; September 2010 plate 7

47http://en.wikipedia.org/wiki/

48 See, Thomas F King; Cultural Resource Laws and Practice; 4th Edition 2013 Altamira Press at pg 138.

49 See, Hughes River Supra note 2 at pg .

50 See, DRMP at pg 2-247.

Continue Reading

Objection to Bear Creek Watershed Restoration Draft Decision

pdficon_large.gif
This letter is a TPA protest for allowing user built mountain bike trails to become legal Forest Service trails, while at the same time denying the same to historic motorized routes in the same area.

 

August 27, 2015

Delivered via U.S. Mail and email to bcc@fs.fed.us

Erin Connelly, Forest Supervisor
Pike and San Isabel National Forest
2840 Kachina Drive
Pueblo, CO 81008

RE: Objection – Trails Preservation Alliance; Bear Creek Watershed Restoration Draft Decision and FONSI

Dear Supervisor Connelly,

Please accept these objections to the July 17, 2015, Draft Decision Notice and Finding of No Significant Impact (“DN-FONSI”) and associated Environmental Assessment (“EA”) for the Bear Creek Watershed Restoration Project. The Responsible Official is Oscar Martinez, District Ranger, Pikes Peak Ranger District. These objections are submitted on behalf of the Trails Preservation Alliance (“TPA”). Please direct communication regarding these objections to Paul Turcke at 950 West Bannock Street, Suite 520; Boise, Idaho 83702; (208) 331-1800; pat@msbtlaw.com; and Don Riggle, 725 Palomar Lane; Colorado Springs, CO, 80906; info@coloradotpa.org; (719) 338-4106. Mr. Riggle shall serve as the lead objector. These objections are prepared in accordance with 36 C.F.R. Part 218, Subpart A.

TPA is a Colorado nonprofit corporation. TPA’s mission is to protect the sport of motorized trail riding, educating all user groups and the public on the value of sharing public lands for multiuse recreation, while protecting public lands for future generations. TPA is a grassroots, 100 percent volunteer group composed primarily of Colorado trail riders. TPA works with land managers to provide recreation opportunities, preserve resources, and promote cooperation between public land visitors. TPA also prioritizes educating its members and the general public about responsible motorized and nonmotorized off-highway recreation. TPA members are fundamentally affected by outcomes to Forest Service planning and rulemaking processes, and is regularly involved in, and deeply concerned with maintaining the integrity and legal validity of, such administrative processes.

TPA submitted comments at scoping and to the Draft Environmental Assessment. In addition to these formal comments, numerous TPA members submitted comments. These objections address issues specifically raised in these earlier comments.

TPA wishes to express its appreciation to the District for the effort and creativity that went into the Project, as well as the general balance achieved by the DN-FONSI. The closure of long-existing access in the Bear Creek Watershed has been very frustrating for TPA and its partners, and despite the difficulty and delay associated with its release, TPA does sincerely appreciate the agency’s ability to get with sight of the final goal through the DN-FONSI. In particular, we recognize and applaud the vision and persistence of the agency to recognize the need to create new motorized trail.

Despite our general satisfaction with the DN-FONSI, we wish to formally object to the manner in which the decision creates a perception of discriminatory inclusion of user-created routes into the designated system. The unauthorized routes designated by the DN-FONSI are outside the Bear Creek Watershed, and thus do not meaningfully address the Project’s purpose and need. The Forest Service Travel Management Rule does not specifically address nonmotorized use, and the DN-FONSI is unclear as to the regulatory basis for designating these routes. It would appear these routes have been added to the Project as a way to placate certain users or through a perceived need to offset creation of new motorized trail with some enhancement of nonmotorized recreation opportunities. While some of these concerns may be valid in a holistic management plan, they are not necessary or responsive to the Bear Creek Watershed restoration. There might be some logic in designating routes of this nature on some sites, but the designation of these routes here deviates from the Forest’s standard practice, which in TPA’s experience has been to categorically reject unauthorized routes for inclusion in the designated route system. We would be willing to withdraw our objection if the Forest can acknowledge the circumstances under which it will approve unauthorized routes for continuing use, specifically including motorized use.

TPA wishes to be clear that it is not opposed to mountain bike use, or nonmotorized use. TPA’s concern is that the agency behave uniformly and properly in carrying out its management and enforcement duties. The Forest Service should be relying upon the concept of shared use, rather than creating or rewarding an expectation from narrow user groups to receive their own exclusive use routes/areas in the National Forests. Without proper clarification, the legitimization of certain unauthorized routes in the DN-FONSI does not clearly conform to applicable regulation and reflects poor policy.

TPA requests that the objection resolution process be utilized to modify the DN-FONSI to clarify a basis for designating the Palmer/Buckhorn routes and other unauthorized routes for continuing use, to designate them for multiple use to include motorcycle use, and/or require additional analysis to address the issues raised by this objection.

Thank you for considering this input. Please contact myself or Don Riggle if you wish to discuss the objection resolution process or any topics raised in this letter.

Sincerely,
MOORE SMITH BUXTON & TURCKE, CHTD.

Continue Reading

New bridge at Deadmans Gulch

Article via Crested Butte News 7/27/15: crestedbuttenews.com


New bridge at Deadmans Gulch

Only positive feedback so far

By Adam Broderick

If you’ve ridden the Deadman’s mountain bike trail this summer you probably noticed the new bridge across Cement Creek. It spans 52 feet and cost almost $90,000 to build, and has been in place since July 7, so unless you’re extra gnarly and ride with eyes closed and ear buds blasting, chances are you’ve noticed.

One of the staff writers here at the News took a ride on the classic Reno-Flag-Bear-Deadman’s trail network recently and had nothing but good to say of the new bridge.

photo by Mark Reaman“It’s crazy nice. It’s a fancy bridge that looks like it could be from the Aspen rec path. It’s fully legit, and they built this dirt ramp up to it so you just ride right on and off,” said sports writer Than Acuff. “Years ago this guy who lived up there dropped a tree perfectly across the creek. It was crossable but got slippery when wet and was kind of sketchy in the spring when the creek is raging. [The new bridge] probably saves a lot of concern and hassle.”

Lee Ann Loupe, spokesperson for the U.S. Forest Service, confirmed that both the Forest Service and users felt the previous creek crossing was not safe, especially in high water, so the decision was made to install a crossing that meets standards and improves safety.

“Citizens constructed make-shift bridges that were not safe or designed to standard. The new bridge doesn’t change trail use seasons, it just makes the trail safer to use,” she said.

The Pratt Thru-Truss Design, 52-foot aluminum bridge cost $86,784 and was paid for by a partnership effort from the Forest Service, an OHV grant from Colorado Parks and Wildlife, GOATs (Gunnison Valley OHV Alliance of Trailriders), Crested Butte Mountain Bike Association, and Gunnison Trails Group. According to Loupe, it’s one of the first, if not the first, 52-foot aluminum bridges in the Rocky Mountain region.

Loupe said the bridge is encouraged for foot, bike and motorcycle use; horses are permitted but are encouraged to use the fjord above. The bridge can support a 5,000-pound load, which Loupe equated to 10 motorcycles and riders at one time, or four horses with riders. She said the bridge has a 50-year lifespan and future maintenance will include checking nuts and bolts, maintaining approaches, and repairing damage from vandalism and/or rocks and trees.

So far, Loupe said feedback from trail users who have crossed the bridge has been 100 percent positive.

 

Continue Reading

Thunder Mountain Wheelers email

This is an email from Thunder Mountain Wheelers (June 21, 2015) reprinted here by permission.

Thunder Mountain Wheelers email header
When you see E – Mail Blast Sponsored By at the top of each E-Mail Blast I send, have you ever thought why these businesses are up there? I want to give you some insight as to what every business member, every corporate club sponsor and every organization at the side of E-Mail Blast does for TMW, (the club), and members.
Each Business Member Sponsor

At the start of this year I decided to approach a few businesses in person and ask if they would like to help out the efforts of TMW with paid sponsorship of all the E-Mail Blast that I send out each month. I have to admit this was a shot in the dark for me to approach theses businesses. Not 1 hesitated or questioned what I wanted to do and wrote out a check to TMW. Why? Will each 1 of these businesses understand the importance of getting their name out in front of potential customers and keep their name out to the loyal customers they have now. Business advertising is a tricky area for every business. Will this ad reach the people intended. Will my dollar amount spent be worth the advertisement cost. Do I really need to spend this money right now. But there is something every successful business realizes, “You have to spend money to make money.”

The money these businesses have given for their name to be placed at the top of E-Mail Blast doesn’t go to Mike LeMaster, the one that puts out the E-Mail Blasts, but to the club IN HOPES that we will spend their hard earned dollar efficiently and to foster the growth of TMW in what ever way we deem necessary. TMW, at last count, has 25 business members in our club. Even though you don’t see the other 21 listed at the top of the page, their efforts with TMW are vital. Several when approached have given supplies, materials, small equipment and at cost deals for TMW needs. All our business members are listed in every newsletter sent out. I ask that you talk with and support these individuals if they have a service or item you would like to purchase.
Corporate Sponsors

At the bottom of an E-Mail Blast you see I have added Corporate Sponsors. These individual companies have contacted me about our web page advertising. They wanted to be a part of our efforts to preserve OHV riding. Yes, they are in the business of selling parts and merchandise to OHV riders but if you go check out their web sites you will see where they are actively involved with efforts to keeping the OHV riding open. They are also concerned with environmental issues. They want to support US and other clubs and organizations out here, because they understand how important the ground root efforts are to protect not only the environment but the right to use public lands to ride. Each 1 of these companies has donated large amounts of money to TMW for no bigger an organization than we are. Yes, I put them out there a lot more on our web site and newsletter but they deserve it.

Cost of running a web site, putting out a printed copy of the newsletter, sending club officials to meetings, gas reimbursements, meeting BBQ and other things isn’t cheap folks. We have a limited amount of money to get this all done and retain enough finances for unforeseen things that pop up. Grants don’t cover it all so that is why we need every business member, non member or sponsor we can get.
Grants

TMW_coohv.jpgThe Colorado Parks and Wildlife OHV State Grant Program is vital to the operation of TMW. For the most part this grant is why we have trails to ride on throughout the state. Without it there would be NO OHV trails, either ATV, jeeps or single track. Yes, these trails are either on the Forest Service or BLM lands. And by the way let me clear something up, “They are our lands.” “Forest Service and BLM are there to manage them only.” “And God only knows if that is working.” TMW as of this year has been awarded 1.3 million dollars in grants. This money is “FOR ON THE GROUND USE.” 4.6 million dollars is dedicated to this cause each year funded by YOU buying the registration tag for your ATV. The Forest Service or BLM don’t even come close to having the money or the work force to do what needs done with these trails. They are eligible also for this grant money and make up the largest percentage of funds granted. In our area I believe the Forest Service is doing a great job of managing their grant funds to get the most accomplished for us. Before TMW applies for grants we meet with the Forest Service each year and talk about what we can do to supplement cost with our grant. This grant is basically “The heart beat of TMW.” So remember that every time you pay your registration fee where and what that money is used for. Some consider it a tax. I believe that is wrong because your tax’s money is used every where and you don’t have a say whether you want that money to go there or not. Your ATV registration goes to ON THE GROUND work and support of the trail you ride.

TMW_yamaha.jpgYamaha OHV Access Initiative grants have provided almost $20,000.00 to promote environmental and safety concerns of ours over the years. Grass Paver, 3000 watt generator and the ATV dump trailers are just a few of the things Yamaha has given us money for. Their grant program is easier than the State OHV Grants but still require a case or a cause for what we a re asking money for. Their grant program is used around the United States to promote ATV use with clubs only. Grand Mesa Motor Sports being our local Yamaha dealer has been a great asset to have on our side applying for these grants. Kevin Anderson has gone over and above to accommodate us.

 

“On Our Side” with Government and Environmental

On our side

There isn’t enough time or paper to tell you what these organizations have done. The members of these organizations have given countless hours, dedication, effort and most of all their personal time for TMW and the OHV enthusiasts over the years. Don’t mean to put one above the other but COHVCO is the one that takes the lead, gets in the trenches, wallows around in the mud, and fights with every means possible for the benefit of OHV issues. Without their efforts OH V’s trail system wouldn’t be where it is today. I refer to them as “THE BIG GUNS.” They fight at the State level right up to Washington if necessary. With all organizations, it is hard to get people involved and takes a large amount of money to get the job done. I asked one of the long time members of TMW if he could remember a case COHVCO never took on and his reply was “No, not as far as what was ever presented to them by TMW.” But don’t forget that their efforts have to be supported by us, not only financial but with letter writing opposing issues that hinder our efforts. Jerry Abboud just sent out an email wrapping up their efforts with the grant problems that face clubs. I quote “I have heard so many complaints about the grant process by our grantees and participating agencies, that those of us at COHVCO have done all we can to this point. Any further success is in your hands.”

Just a reminder. Our opponent’s have lots and lots of corporate money behind them. I have the list of these donors for the Sierra Club and if you seen it you might not support those donors anymore. But just a clue, if you want to sustain life, or enjoy certain conveniences on this earth you will buy from them. Sad but true. New statistics came out showing that for every penny clubs and organizations spend to keep trails open and fight all the wilderness that people want to impose on us our opponents spend a dollar. It is hard to compete with these odds. If you feel like I do and want to see OHV riding in the future, you might give it a thought to supporting these organizations. 100 penny’s make a dollar and that is a start.
Members Of TMW

I don’t want this email to end without giving tribute to every member of TMW. Without your years of support from each one of our long time members and lifetime members and too all the new members that have joined and will join none of this would be possible. I can say that countless hours have been volunteered by our members and I do have a tally on that when it comes to maintenance, reconstruction and environmental concerns on our trails. Trust me it is several thousands of hours. And guess what? Thousands of hours haven’t been documented. As I said previously the Forest Service and BLM wouldn’t have a trail system like we have if it wasn’t for those thousands of hours dedicated to volunteer work. Facts from the Government Accountability Office in 2012 show that 2/3 of all work done on trail systems in the US, mainly in the western part of the US, are contributed by volunteers. In the report they address issues pertaining to huge problems within these agencies that could possible disrupt or destroy the volunteer programs. We are in an area now which needs changed and we are trying our best to get these changes. Will these agencies take their advice or better yet our advice?

So in closing I would like to say:
YES – every business member and every corporate sponsor is Important
YES – every dollar we receive form grants is Important
YES – every organization that we support also supports us and their fight is Important
YES – every Individual, Patron, Benefactor, Life time or Family Member of TMW is Important

If you can or able to do a little more for TMW or anyone mentioned, I would ask that you don’t wait and join the efforts to preserve our trails. There is something at every level of any club or organization that you can help with. What you think is insignificant, could be a major factor with TMW to get involved with. TMW Mission Statement reads as follows:

Promote, foster and provide an attitude of public service, volunteerism, safe riding practices and environmentally responsible techniques of riding off highway vehicles while preserving public trails, national forests and BLM Land.

Continue Reading

letter to the Gov of Colorado

pdficon_large.gif
July 21, 2015

Governor John Hickenlooper
Office of the Governor
200 E. Colfax Ave #136
Denver, Colorado 80203

Re: Trails Program and Outdoor Summit

Dear Governor Hickenlooper:

Please accept this correspondence as the input from the motorized recreational community who was not invited to the recent Outdoor Summit hosted by Great Outdoors Colorado where you rolled out the Beautiful to Pedals program along with your desire to identify 16 trails of priority importance for construction and an interactive state trails map. Frustrating as motorized community came together more than 4 decades to support trails in the state and have developed a self tax program that has placed almost $100 million dollars on the ground for the benefit of trails in the State of Colorado. The motorized community is the only group that directly pays to support trails in the State of Colorado.

The Organizations noted above applaud your Office for recognizing the integral part that the dispersed road and trail network plays in providing the high quality recreational opportunities that have become synonymous with the State of Colorado. As Colorado Parks and Wildlife (“CPW”) has accurately noted 98% of Coloradans participate in trails based recreation and this results in more than 250 million visitor days to the State. Preserving these opportunities was the reason that our user groups came together almost four decades ago, lobbied the Colorado General Assembly and voluntarily adopted the registration program for motorized recreational trails and management. Our members are intensely proud of the State Trails Program that has resulted and the critical role the motorized registration program has played in providing recreational opportunities in Colorado. Unfortunately, the CPW Trails Program is at a crossroads. The Organizations will need your assistance in resolving the issues that have brought the program to this point and resolve this must be the highest priority for trails in the state moving forward. Our members are very concerned and frustrated that there has been a great deal of activity surrounding trails recently and unfortunately no one has had the courtesy of extending an invitation or sought input from the Trails Committee on many of these questions.

Prior to moving deeper into this discussion, a brief summary of each Organization is needed. COHVCO is a grassroots advocacy organization of representing the 150,000 owners of registered OHVs and thousands of four wheel drive enthusiasts in Colorado. COHVCO is 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.

CSA was founded in 1970 to unite the more than 30,000 winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport.

Trail Preservation Alliance is a 100 percent volunteer organization whose intention is to be a viable partner, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding. The Organizations act as an advocate of the sport and takes the necessary action to insure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. Throughout these comments CSA, COHVCO, and TPA will be collectively referred to as “The Organizations”.

1. There is a critical need to leverage existing resources in order to address all trails based recreation issues.

While the Organizations applaud the efforts made at the Outdoor Summit, we must also express frustration at the limited input, recreational interests and outreach in identifying routes that benefit only small user groups as a state level priority issues. It is the Organizations position that while a single trail or connector might be important at the local level, many of the challenges to trails usage in the State are landscape level issues that can only be addressed with programmatic adjustments and partnerships of users. The Organizations found it highly exasperating that 22 miles of bicycle route on the Front Range needed to complete the Front Range Trail was identified as a priority for the State. Over the same period as the Front Range Trail has been developed, literally thousands of miles of true multiple use routes on federal lands were lost to recreational usage on the Western Slope of Colorado. Our Organizations are also aware that the 14ers are in exceptionally bad shape in terms of maintenance, but we would note that the vast majority of recreational users in Colorado will not seek to summit each of the 14ers and often will seek less strenuous recreational pursuits. The Organizations submit that any attempt to reconcile these 22 miles of bicycle routes and limited funding for 14ers maintenance would simply lack factual basis to establish them as a state priority and would not be well received on the Western Slope, which has seen a massive constriction in the multiple use routes available to the public on BLM lands, such as Grand Junction FO, CRVFO and others. Given the limited funds and massive challenges facing multiple use trails, a cost benefit analysis for any project or priority is critical.

The Organizations also would note that developing an interactive recreational map for the State is a commendable goal as well. Our concern is that this resource already exists in the form of the Stay the Trail program’s OHV opportunities map1, which allows users to identify trails areas, the types of usage at each area and then provides a link to the particular land management agency for the area in order for the public to obtain an up-to-date map of the particular roads and trails in that area. The Stay the Trail program, which is the OHV education and outreach specialists funded entirely by the OHV program. The Stay the Trail program that has been under development for a long time and continues to expand resources available to the public through their maps, educational materials and website. The Organizations submit that failing to include these resources in the development of any statewide recreation map is unfortunate, represents a missed opportunity that could have benefitted all trails and recreational users of public lands, and could result in significantly increased costs to the state in achieving these goals.

The Organizations are deeply concerned that the limited scope of users at the GOCO Outdoor Summit has resulted in missed opportunity for fostering partnerships and this missed opportunity has made these partnerships more difficult to form/expand in the future. While GOCO has had a seat on the State Trails Committee for a long time, not a single State Trails Committee member was invited to the Outdoor Summit despite the State Trails Committee serving as the advisory committee on trails issues for the entire state. Additionally, several of our members serve on the CPW “Partners in the Outdoors Committee”, are active members on the team revising the Statewide Comprehensive Outdoor Recreation Plan and are in regular attendance at numerous state and federal land manager meetings. While our members have been actively involved in a wide range of CPW committees and preservation efforts for decades. These efforts were for reasons that are unclear, not acknowledged with an invitation to the Outdoor Summit.

The Organizations believe this narrow cross section of users and failure to involve the State Trails Committee in this discussion clearly evidences the need for better communication between the entire trails community and your office as any program moves forward. The Organizations are also deeply concerned that staff is being hired for the Beautiful and Pedals program, but this staff is in no way integrated with the existing trails program. To make this situation even more exasperating the current trails program is experiencing what can only be summarized as a critical shortage of staffing. As a result we have developed our own list of trails related priorities in the State, including many programmatic issues and challenges, in order to start any discussions with.

2a. Recognition of the importance of recreational economics to the State.

The Organizations would like to applaud your Office’s recognition of the importance of trails in providing the high quality recreational experience that has become synonymous with Colorado. The outdoor recreational economy is critical to Colorado, as all types of recreational activities contributes more than $10 billion per year to the State economy. The usage of registered OHV’s and snowmobiles in Colorado directly contributes more than $1 billion per year to the economy and results in more than 10,000 jobs annually. The Organizations are aware that multiple use based trails recreation contributes far more to the economy as many road legal four wheel drives, similar to a Jeep, are not addressed in the COHVCO study and the multiple use routes in Colorado are an integral part of many recreational activities that are only relying on motorized routes to access their chosen recreational areas, such as those wildlife watching, sight-seeing, hunting, fishing and camping.

When these recreational activities, which are heavily relying on multiple use access provided by the existing trails program are addressed, the overwhelming value of this road and trail network becomes apparent. Clearly, the identification of any trails priorities for the State moving forward must include all users of trails and the Organizations were deeply disappointed that obtaining input from all trails users was not achieved at the Outdoor Summit.

2b. Multiple use routes are critically important to many activities that are not traditionally trail based.

The Organizations submit that the multiple use basis of trails recreation is as an issue that should be addressed in developing a priority trails management list. As the Outdoor Industry Association has specifically recognized, multiple usage access is critical to providing the recreational opportunities synonymous with Colorado. Similar values have been echoed by many other non-traditional “trails users” as well, which was recently addressed by the National Shooting Sports Foundation(“NSSF”). The NSSF in partnership with the US Fish and Wildlife Service and 20 different state wildlife agencies performed a national review of the issues that are impacting the hunting community and declining hunter participation rates in the US and what agencies can do to maintain and grow hunter involvement in the wildlife management process. The NSSF research specifically concluded:

“Difficulty with access to lands for hunting has become not just a point of frustration, but a very real barrier to recruiting and retaining sportsmen. Indeed, access is the most important factor associated with hunting participation that is not a time-related or demographic factor—in other words, the most important factor over which agencies and organizations can have an important influence….”2

The importance of hunting usage and access for funding of wildlife management activities, a significant issue that is directly related to hunting usage is overwhelming. This funding impact is summarized as follows:

“Hunters are avid conservationists who donate more money to wildlife conservation, per capita, than do non-hunters or the general population as a whole in the United States (Responsive Management/NSSF, 2008a). Hunting license fees and the excise taxes paid on sporting goods and ammunition fund state fish and wildlife agency activities and provide Federal Aid monies…. In fact, sportsmen, as a collective group, remain the single most important funding source for wildlife conservation efforts. Consequently, decreased interest and participation in hunting activities may have the unintended effect of reduced funding for important wildlife and habitat conservation efforts.”3

The importance of motorized access to the retention of hunters is immediately evident when the specific means of access for hunting activity are identified. Hunters overwhelmingly use motorized vehicles as the primary tools for accessing hunting areas, as cars and trucks are used by 70% of hunters, and OHVs are used by 16% of hunters. The Organizations believe that OHV access plays an even more critical role in Colorado given the difficult and diverse terrain being presented to the hunting community. While 86% of hunters are using motorized tools, only 50% of hunters identified walking as their access method of choice.4 The significance of closures on public lands is also specifically identified in this research, which identified that 56% of hunters specifically cited restrictions on motorized access and 54% identified closures of public lands by government agencies as significant issues for hunters. 5

Our Organizations submit that this type of research directly evidences the critical need to obtain input from all trails users in the creation of a priority list of trails issues for the state of Colorado. Again limited funding and basic programmatic challenges warrant a cost benefit analysis for any programs or priorities that are adopted.

3a. The funding crisis facing federal land managers and state trails program.

Our Organizations are intimately aware of the funding challenges that are associated with the dispersed routes/trails network on federal lands in Colorado and firmly believe that partnering of all users is the only way that this issue can truly be addressed. Given the massive nature of the challenge that trails based recreation is facing, even maintaining current opportunities is a goal that may not be attainable. The scale of the federal lands funding crisis was recently addressed by the Government Accountability Office report that identified a maintenance backlog of more than $314 billion for Forest Service roads and trails and only 20% of all Forest Service routes are financially sustainable.6 Colorado 14ers recently issued a report regarding the condition of the foot trails to the summit of many of the 14,000 foot peaks in Colorado, that identified that many of the foot trails were in exceptionally poor condition and gave the maintenance efforts a “D” overall.7 This situation presents a compelling argument that simply maintaining what is currently available to users will require significant efforts and partnerships of users with state and federal land managers. Clearly a partnership similar to the one between motorized users should be looked at for foot path issues as well.

The Organizations are aware that the Colorado State Trails Program has grown to a program that puts over $7 million in annual funding from the motorized user community back on the ground for all trails users. This program fosters volunteer support from the grants as in kind donations of labor that flow from the program, which is valued at more than $28 million a year. Again, the motorized community is the largest single source of volunteer labor to complete the grant projects. Many of these grants have matches of funding or other resources equal to the value of the grant from third parties. The Organizations commend GOCO for increasing funding for non-motorized opportunities but their efforts are at best a partnership, as the motorized community has been funding trail maintenance for decades before GOCO was formed in 1992.

The Colorado State Trails Program has been consistently recognized as a national leader in maintaining dispersed trail networks and providing the basic resources to land managers to continue to provide trail and road based recreational opportunities to the public. Numerous activities to benefit all recreational activities are funded through the motorized component of the Trails Program including:

1. Directly funding 16 good management crews throughout the state that provide basic trails related services such as maintenance, trash removal and cutting of dead beetle kill trees that consistently block trails to all users; and

2. The winter groomed trail network provides almost all public access to winter backcountry recreational opportunities including cross-country skiing and hybrid skiing.

We have enclosed a summary of each of the 32 summer grants in 2015 from the Colorado Trails Program to predominately federal land managers and outlines of the good management crews that accounted for more than half the grant money awarded by the program. Each of these grants represents a large benefit to all trails users. The Organizations also vigorously assert that the motorized community has directly contributed more than $300,000 per year to non-motorized trails through the Federal Recreational Trails Program. The Organizations would welcome the types of partnerships that protect and preserve multiple use trails and the Trails Program that could be facilitated by your Office. It is highly frustrating to the Organizations that the is Program was not involved in the Outdoor Summit in order to insure that basic services associated with all trails usage are addressed and it appears that staffing decisions are now being made entirely outside the established trails program, while the critical lack of staffing at the Program is entirely overlooked.

3b. The CPW Trails Program is at a critical crossroads.

Our Organizations believe that building a complete inventory of goals and objectives for trails as part of the Outdoor Summit is a valuable objective and that the failure to obtain a full cross-section of all trails related issues has resulted in basic issues being overlooked. The primary issue that could have been addressed at the Outdoor Summit would have been the challenges with the existing State Trails Program and hopefully how to resolve these issues in a timely manner. Given the importance of this issue, our Organizations believe this warrants particular examples of why we are concerned.

The Organizations submit that the State Trails Program is the single most effective tool available in the nation for preserving multiple use trails and high quality recreational opportunities on public lands in Colorado. While this Program has been highly effective in the maintaining of tens of thousands of miles of routes in the past, it is the Organizations experience that the Program has become heavily burdened with unnecessary documentation and multiple layers of review often by persons totally unfamiliar with the Program. This has resulted in increasing burdens on grant recipients, significant delays in funding projects and many other issues that directly impair the effectiveness of the program on the ground for all users. In our opinion, the managers that built this Program from the ground up are forced to answer to CPW, DNR and other Comptroller representatives that simply don’t understand the objectives and may have only recently graduated college. While there are efforts in place to attempt to resolve these issues, our Organizations are deeply concerned that if efforts are too late changes will only be of limited benefit and may not stop loss of the State Trails Program entirely.

The State Trails Committee had recently received testimony from more than a dozen grant recipients on the new hurdles the State Trails Program is facing. A complete version of these meeting minutes are attached to this correspondence. However, the Organizations wanted to specifically highlight some of these concerns including:

  1. The complete failure of the Trails Program to fund both USFS and BLM good management crews last season allegedly resulting from paperwork issues between the BLM and CPW;
  2. New holdback requirements for the final 10% of any grant, requiring small non-profits to either find additional funding or never submit the grant;
  3. Many of the volunteer clubs that qualified for funding to purchase winter grooming equipment in the 2014/2015 season did not receive any money until the end of the grooming season; and
  4. Reimbursement of operational activities under grant awards was consistently received very late.

While these issues were immediately understood to be critically important by the State Trails Committee, the Organizations are concerned that this position has not been adopted by others in CPW as it took almost 6 weeks to get an appointment to speak with the CPW Director and when the CPW Commission was addressed some members understood the issue and others displayed sentiments about these issues similar to “as long as the money gets to them at some point that is good enough” were displayed. This is very concerning. These are issues that the State Trails Committee and our Organizations remains committed to resolving, but could have been resolved more easily with the support of your Office and the pulpit that the Outdoor Summit could have provided. Clearly insuring the continued effectiveness of the State Trails Program is a top 16 trails priorities for the state. Given the scope of the challenge, partnering of users and resources will be a critical step in truly resolving these issues, but will need the full cooperation of CPW, DNR and the Outdoor Summit.

5. Partnerships are the only way to address trails challenges.

The Organizations are upset that such a narrow vision and invitation list was relied on for the development of the Outdoor Summit, especially since GOCO has had a seat on the Colorado State Trails Committee for decades. It was our Organizations understanding that this seat on the State Trails Committee was provided in order to facilitate communication between users and avoid issues such as those that have resulted from the Outdoor Summit.

It has been our Organizations experience that too often a narrow vision of a trails based management objective addressing only a single user group becomes a hurdle to improving recreation on the ground rather than a benefit and often results in a barrier between partnerships An example of this conflict outside the Trails program would be the recent reallocation of lodging taxes to trails by the City of Steamboat Springs. Rather than leveraging existing resources in the area, the mountain bike community allocated the revenue entirely to mountain biking and then developed a system of mountain bike only trails in the area, which resulted in expanded conflict between users rather than improved recreational opportunities. This type of single minded proposal has been a frustrating situation for all trails users and simply must be avoided in the future.

Unfortunately, the Steamboat Springs area is not the only area where single interest groups place themselves above multiple use interests. Other examples would be unilateral decisions from the mountain bike community that fat tire bicycles should be allowed on all groomed winter routes on the White River National Forest despite the prohibition of this usage in the Forest Plan. Another example is the loss multiple usage to mountain bike only usage on the trail known as the world’s greatest downhill trail on BLM lands outside Eagle, despite the decades of usage and maintenance of this route by the multiple use community. These are issues that compound frustrations to our users from the limited scope of the Outdoor Summit.

Again, the Organizations submit that the Outdoor Summit could have been a prime opportunity to build these partnerships, resolve current issues facing trails, and for reasons that remain unclear was not relied on to function in that role. The Organizations would welcome any efforts from your Office to build these partnerships to protect and preserve trails in Colorado in the future.

6. Our Organization’s top trails to be reopened/preserved and trails related issues to be addressed (in no particular order).

The Organizations are very concerned regarding the accuracy of any list of high value trails and issues that might have been compiled at the Outdoor Summit due to the limited scope of users invited to the event. As an example, the Organizations are aware that approximately 5,000 miles of multiple use routes have been closed in recent planning efforts from several BLM Field Offices in western Colorado and these closures have been of serious concerns for local communities and have been vigorously opposed by the Organizations. These areas have become primary recreation areas for the residents of the Front Range due to limited opportunities being provided on the Front Range.

The Organizations are also deeply concerned that there are many programmatic issues and landscape level concerns regarding trails that are simply never addressed and are far more important to the state than any single mile of route ever could be. Examples of these landscape level concerns would include the challenges facing the state trails program but would also include the ever shrinking funding for recreational trails from the federal government.

The Organizations submit that any assertion of 22 miles of bicycle trail on the Front Range to connect Wyoming and New Mexico is a top 16 priority in the State is probably lacking factual basis in light of thousands of miles of routes being lost in other parts of the State. Such a position is even more difficult to defend when the limited number of user groups that would have access to this route is identified. Clearly these 22 miles of routes is of limited value for a hunter seeking to retrieve big game on the Western Slope.

As a result, the Organizations have identified 16 of our own multiple use trail network locations and trails related issues to be addressed in the attached list to this correspondence. We welcome discussion and efforts to develop a consolidated list of the 16 priority trails issues in the State and any efforts to partner with existing motorized programs and resources to mitigate these issues.

7. Conclusion.

The Organizations commend your Office for recognizing the importance of the multiple use trails/roads network to all recreational activities in the State of Colorado, although we have experienced significant frustration with these efforts to date. The Organizations would welcome any collaborative efforts to address trail challenges and as a result we have included our 16 priority issues for the existing trails network in the State of Colorado. While time is growing shorter and the urgency is increasing, our Organizations believe immediate partnerships with the Outdoor Summit can resolve these issues. The Organizations believe that rather than identifying small trails for the benefit of a single user group, any trails based efforts must be collaborative and targeting how the most benefit can be obtained for all recreational users. There are many landscape level programmatic challenges facing trails in the State and we would be remiss in not addressing these issues. The Organizations submit that resolving the crossroads currently facing the CPW trails program would be the single largest step that could be taken to protect multiple use trails in the state. Obtaining a wide range of input is also key to improving trails based recreation as this will allow for complete leveraging of resources and partners that are already on the ground as a result of decades of work that has already occurred under the CPW trails program.

The Organizations would ask that they be invited to any Outdoor Summit type events that might be formed in the future and would be more than willing to participate in the formation of a priority list of issues impacting trails users in the state. Please feel free to contact Scott Jones at 518-281-5810 or by mail at 508 Ashford Drive, Longmont, CO 80504 for copies of any documentation that is relied on in these comments or if you should wish to discuss any of the concerns raised in this correspondence further.

Respectfully Submitted,
Scott Jones, Esq.
CSA President
COHVCO, TPA Authorized Representative

D.E. Rigle
Director of Operations
Trails Preservation Alliance

Jerry Abboud
COHVCO Executive Director

CC: Lt. Governor Joe Garcia
Luis Benitez, Colorado Outdoor Recreation Industry Office
GOCO Executive Director
Al White, Colorado Tourism
Mike King, DNR Director,
Bob Broschied, CPW Director
CPW Trails Committee Chair Christian Meyer
CPW Trails John Marriott
CPW Trails Janelle Kukuk
USFS Region 2- Jim Bidwell
BLM Colorado State Office- Jack Palicchi
CPW Trails Program

 

1 This project map and related resources is available here : http://staythetrail.org
2 See, National Shooting Sports Foundation; 2011; Issues relate to hunting access in the United States: Final Report; Accessed December 4, 2013; http://www.nssf.org/at pg 7. (hereinafter referred to as “NSSF report”)
3 See, NSSF Report at pg 3-4.
4 See, NSSF report at pg 56.
5 See, NSSF report at pg 113.
6 See, Government Accountability Office; Forest Service Trails; Long and short term improvements could reduce maintenance backlog and enhance system Sustainability; June 2013; GAO-13-618
7 A full copy of this report is available here: http://www.14ers.org

Top trails related issues in the State of Colorado

  1. Existing trails program must be protected in order to insured continued exceptional performance of program;
    – Predominately funded through the voluntary registration program adopted by the OHV and snowmobile community decades ago;
    – National award winning program that funds cutting trees; picking up trash; providing basic services
    – law enforcement and backcountry safety
    – allows flexibility in USFS and BLM funding for trails
    – grants have become exceptionally slow in payment and often associated with higher and higher administrative burdens on volunteers and land managers
  2. Legislation regarding recreational OHV usage on county roads;
  3. Lefthand Canyon Area in Boulder County must be reopened;
    – true multiple use area that has recently completed planning and has been closed since Front Range Flooding
    – USFS is now asserting that entirely new planning must be undertaken.
  4. Rollins Pass Road must be reopened
    – route connects Winter Parka and Boulder and was specifically addressed in James Peak Wilderness Legislation;
    -unique recreational opportunity for all users; and
    – massive community support other than Boulder County Commissioners.
  5. Captain Jacks Trail network outside Colorado Springs must be reopened;
    – Temporary closure due to ESA litigation
  6. The complete lack of quality parking facilities throughout the state for trailheads;
  7. DeBeque single track trails outside Grand Junction should not be closed;
    – exceptionally high quality single track recreational area that is proposed to be closed;
  8. BLM RMP’s- in the last several years the BLM has literally closed thousands of miles of high quality multiple use routes without opposition from the State of Colorado;
  9. Pueblo Honor Farm;
  10. Impacts of Endangered Species Act listings
    – too often trail closures are relied on to address species issues that are completely unrelated to recreational usage
    – We appreciate your lead on the Sage Grouse but there are many other species that have had huge impacts on recreational access such as the cutthroat trout and lynx;
  11. Multiple use recreational opportunities are exceptionally limited or totally unavailable within 2 hours of the Front Range;
  12. Build a coalition of trails users that seek to work together on issues rather than each organization seeking to build exclusive trails;
  13. Restoration of trails in fire impacted areas;
  14. Front Range Flooding impacts must be addressed;
  15. Declining funding for non-motorized recreation and trails.
    – ongoing concern for Federal Recreational Trails Program
    – declining Land And Water Conservation Fund monies
  16. Develop truly multiple use trail network in the Steamboat Springs area.
    -leverages existing funding from City of Steamboat Springs

 

 

 

Continue Reading

MTRA Summer 2015 News Letter

   
pdficon_large.gif

July 8, 2015

 

MTRA Summer 2015 News Letter
(reprinted by permission)

Motorcycle Trail Riding Association
of Grand Junction
PO Box 3204
Grand Junction, CO 81502
Summer 2015

A club that represents the interests of motorcycle trail riders. A club that strongly believes that anyone who uses our public land should be involved in the processes that make our use possible. A club that was formed to offset the strong movement that opposes our right to enjoy the form of recreation that is our passion.

 

Club Officers for 2015:
James Solomon, President
Steve Martin, VP
Monte Potter, Treasurer, GVTA Roundtable Representative
Cap Kuney, Dozer operator, Trail work foreman
Walt Green, Ride Planner
Millard Atkins, Director
Marc Baker, Director
Lee Cooper, Director
James Cooper, Trail Dozer Manager, Trail Planner
Steven Kovarovics, Marketing Director

Message from the president:
As a brief summary of where we are in regards to the RMP/TMP (Resource Management Plan/Travel Management Plan), we are still waiting for results from the protests that we submitted along with the COHVCO protest. Once the protest period has been resolved (and I am not sure how long that will take) we will then move into the Trail-by-Trail Appeal period which will be a 30 day period. We will keep you posted regarding timing on this issue.

The Mesa County Commissioners had submitted a proposal to the BLM and the Governor requesting a 6 month extension between the Protest completion and the Travel Management Appeal. This was rejected by the BLM.

Other land use issues:

1.The land management agencies have no money for trails, no man-power in house to do the work, they are bogged down with the PRMP (Proposed Resource Management Plan) Protest and the upcoming TMP (Travel Management Plan) Appeal process, they are bogged down by the recent Citizens Wilderness Proposal that is demanding a re-look at many areas within the field office.  All of these things are pointing toward NO NEW TRAILS!  I am sorry to report that we cannot even push to completion the Tab Connector. 

2.The BLM staff have calculated that the construction cost/mile of a new trail will be approximately $16,000.  Approximately $4,000 of that figure would be for surveys.  If these numbers are accurate, there is something wrong with our Public Land Management Strategy.  The money for surveys is the most difficult to raise by the office, therefore they are suggesting that the GVTA take on the job of finding ways to secure this money.  I also think we should petition for a faster less expensive way to implement new trails to meet demand. 

3.We do have trails on the N. Uncompahgre that we have an opportunity to work with.  (N. Unc. Sub-Group)  There are trails in this area that are horse/foot or Mountain Bike that may be eligible for re-designation as multi-use as they are not being used by the group that was designated.  We are also proposing a parallel trail that will be 50″ that will allow most small motorized vehicles to stay off Divide Road as much as possible.  Jim Cooper and myself are working with the USFS and the GVTA to explore the opportunities that may work best in this area. We will keep you updated.

MTRA joins forces with the Forest Service and our Dirt Bike friends.
MTRA representatives have been working with the Grand Valley Ranger District to improve the Leonard’s Ridge single track trail on the North Uncompaghre trail system. Discussion and planning along with NEPA work took a while. The Bookcliff Rattlers have been working with the Forest Service to construct a sustainable and rideable trail around Pole Hill at the south end of the Long Canyon Trail.

The agreed best tool for these projects is a SWECO 300 trail tractor. We agreed to rent a tractor from SWECO to do the work. The funds are coming from our friends at Trails Preservation Alliance and The Rattlers. Operators and crew will be from the Forest Service and the MTRA.
The tractor was received today July 9, 2015, at the USFS yard and will be trucked up to the Poll Hill re-route area tomorrow and work will start as soon as the ground dries up enough to be workable.

I will keep you informed and updated as to what things you as a rider can best participate in that will assist in the overall benefit to our trails issue. We appreciate your continued support through membership, active trail work and donations.

James Solomon, President

 

 

NOTICE!
Dirt Bike Trail Rider BBQ
Friday, July 24, 2015
KTM, BMW, Harley Davidson Store
2747 Crossroads Blvd, GJ
5:30 p.m.-7:00 p.m.
Bring a friend!

   
 

 

Continue Reading

Northwest Colorado Greater Sage Grouse Protest

pdficon_large.gif
June 26, 2015

Bureau of Land Management Director
Attn: Protest Coordinator
20 M Street SE, Room 2134M
Washington, D.C. 20003

Re: Northwest Colorado Greater Sage Grouse LUPA and FEIS

Dear Sirs:

Please accept this correspondence as the appeal and protest of the above Organizations regarding the Final 2012 Greater Sage Grouse Land Use Plan Amendment and EIS (“The Plan”). The Organizations are forced to appeal the Plan given the arbitrary and capricious nature of proposed recreational usage of routes and trails in the Plan. While BLM lands allow for maintenance and expansion of routes in priority habitat areas, lands managed by the USFS are subject to a mandatory prohibition on route construction, regardless of why the construction is being undertaken. The arbitrary nature of this standard is compounded by the fact that most priority habitat is under BLM management and USFS management areas are only general habitat areas of marginal value and may not even be occupied by any Grouse at this time. The Organizations further submit that absolutely no attempt is made in the FEIS to provide a scientific basis for the management conflict, why USFS managed lands might be more valuable habitat areas or the need to address recreational usage of habitat, which has been repeatedly identified as an issue of limited concern to habitat quality. The Organizations submit that any management standards that are truly science based would not draw boundary lines for changes in management based solely on the agency that is administering the lands. The Organizations submit that avoiding such management was one of the goals of the consolidated planning process and moving forward with such management is arbitrary and capricious as a matter of law.

The Organizations are very concerned that the Plan does not accurately reflect the priority or significance of particular threats to the Grouse that were identified in the FWS listing decision. The FWS listing decision notes that moving to a designated trail system, as BLM is already doing nationally, is one of the largest and most important protections for grouse habitat involving recreational activity. The failure to properly prioritize threats and management priorities will result in inconsistent management, which may target issues that will generate significant costs and economic impacts and generate little benefit to the grouse.

The Plan proposes many standards, the application of which is not clearly described or is described in a conflicting manner in numerous points in the Plan such as the basis for surface disturbance standards or justification of management changes to grouse habitat based solely on the land management agency managing the area. Analysis of these concerns often are combined with other standards that will clearly impact the overall access not only to habitat areas but also to recreational opportunities outside the habitat areas. These cumulative impacts are never addressed. An example of the combined impacts would be limiting usage to designated trails in priority habitat and limitations of surface disturbance to 3% or 5% of the habitat area. The Plan most commonly refers to the surface disturbance standards in terms of gas and oil development but at no point is there any limitation of the surface disturbance standards and usage of the route. Rather than specifically limiting impacts, the Plan often speaks to the availability of offsetting closures in the vicinity of the proposal area to minimize impacts. At no point is there any discussions of how these off sets would function on the ground.

Discussions of oil and gas surface disturbance standards often mention an offset being available for projects. The Organizations will note this off-set of usages will bring oil and gas development into direct conflict with recreational usage. The standards for this interaction or analysis of possible impacts simply are not provided in the Plan. The Organizations will note that often the intent of many routes is simply not determinable and will result in application of the surface disturbance standards to routes not related to oil and gas. The Organizations are assuming in these areas, designated routes would be insufficient protection but we simply are not sure this is the standard and are not able to determine how much of the planning area would be impacted by the 3% or 5% surface disturbance limitation.

The Organizations are able to support certain principals provided in the Plan, such as the use of seasonal closures around active lek sites. Restrictions of landscape level open riding areas to designated routes and trails networks in priority habitat is also acceptable to the Organizations. This designated routes standard becomes problematic when applied to areas that may be suitable for an open riding designation and are in a general habitat that may not have been occupied by the Grouse for decades. The application of these standards becomes very murky when the 3% or 5% surface disturbance standards are applied. The Plan simply must describe how all these issues will be applied on the ground and simply has not been.

Prior to addressing the specific concerns of the habitat designations, a brief summary of each Organization is needed. COHVCO is a grassroots advocacy organization of approximately 2,500 members 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.

CSA was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA currently has 2,500 members. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport.

Trail Preservation Alliance is a 100 percent volunteer organization whose intention is to be a viable partner, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding. Throughout these comments CSA, COHVCO and The Organizations will be collectively referred to as “The Organizations”. The Organizations act as an advocate of the sport and takes the necessary action to insure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. 2b. The standard of review for economic analysis is a de novo standard as the Courts have consistently substituted their judgment regarding the accuracy of economic analysis. Courts have consistently held agencies to a much tighter level of review of economic analysis when compared to other issues within the agency expertise in the NEPA process as the court makes their own conclusions regarding the accuracy of review without deference to agency findings. Relevant court rulings addressing economic analysis in NEPA have concluded:

“an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.1 The Court then discussed the significance of economic analysis in planning as follows:

“Misleading economic assumptions can defeat the first function of an EIS by impairing the agency’s consideration of the adverse environmental effects of a proposed project. See, South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011-12 (5th Cir.1980). NEPA requires agencies to balance a project’s economic benefits against its adverse environmental effects. Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1113 (D.C.Cir.1971). The use of inflated economic benefits in this balancing process may result in approval of a project that otherwise would not have been approved because of its adverse environmental effects. Similarly, misleading economic assumptions can also defeat the second function of an EIS by skewing the public’s evaluation of a project.2 The level of accuracy of the hard look at economic analysis applied by the Court in the Hughes River decision is significant as the Hughes River Court invalidated an EIS based on an error in economic contribution calculations of approximately 32%.3 The Organizations submit that there is simply no economic analysis provided that addresses economic impacts to local communities from proposed management changes and there is simply no analysis of more significant impacts to USFS managed habitat that will result from more restrictive standards than those used by BLM for management of route and trail networks in habitat areas. 2c. The mandated hard look of NEPA at issues simply has not occurred in the Proposal. The Organizations believe a brief summary of the arbitrary and capricious standard of review that are applied by Courts reviewing the hard look of an agency in NEPA analysis is relevant to this appeal/protest, as the courts have consistently directly applied the NEPA regulations to EIS review. As a general review standard, Courts have applied an arbitrary and capricious standard of review for agency actions within their expertise under NEPA. This standard is reflected as follows:

“…it required only that the agency take a “hard look” at the environmental consequences before taking a major action.See, Kleppe v. Sierra Club,427 U. S. 390,427 U. S. 410, n. 21 (1976). The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions, and that its decision is not arbitrary or capricious.See generally, Citizens to Preserve Overton Park, Inc. v. Volpe,401 U. S. 402,401 U. S. 415-417 (1971).4 The CEQ regulations note that a detailed statement of high quality information is a significant tool to be relied upon in the public comment process required for all NEPA actions. These regulations clearly state this relationship as:

“NEPA procedures must ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.”5 It is well established that NEPA regulations require an EIS to provide all information under the following standards:

“…It shall provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment….. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses….”6 These regulations continue and expands upon the detailed statement theory for planning purposes as follows:

“You must describe the proposed action and alternatives considered, if any (40 CFR 1508.9(b)) (see sections 6.5, Proposed Action and 6.6, Alternative Development). Illustrations and maps can be used to help describe the proposed action and alternatives.”7 These regulations clearly state the need for the quality information being provided as part of this relationship as follows:

“The CEQ regulations require NEPA documents to be “concise, clear, and to the point” (40 CFR 1500.2(b), 1502.4). Analyses must “focus on significant environmental issues and alternatives” and be useful to the decision-maker and the public (40 CFR 1500.1). Discussions of impacts are to be proportionate to their significance (40 CFR 1502.2(b)).” 8 It is the Organizations position that recreational usage of habitat areas is the highest usage of these areas for local communities. The Plan fails to provide consistent analysis or clear provisions for the management of recreational activities. The Organizations vigorously assert this level of analysis is a per se violation of NEPA requirements for a detailed statement of high quality information on the issues. 3a. The direct conflict of agency management standards for trail and route development is arbitrary and capricious and lacks any scientific basis. The Organizations are vigorously opposed to the arbitrary change in the management of trails and route development in the FEIS applies that treats USFS lands are differently than lands that are under BLM management. The Organizations submit that management of this issue in this manner simply entirely lacks scientific basis and is exactly the type of arbitrary standards conflict that the cross agency planning initiative was designed to avoid. The Organizations submit that there is a wide range of research recognized as best available science that conclude recreational usage simply is not a threat to the Sage Grouse. This research is more specifically addressed in subsequent portions of the appeal. There is simply no basis for such an arbitrary boundary in the management of habitat areas in this research.

The USFS habitat areas applies the two following standard and guidelines to all habitat areas: “GRSG-RT-ST-065-Standard – In PHMA and GHMA, do not conduct or allow new road or trail construction (does not apply to realignments for resource protection) except when necessary for administrative access, public safety, or to access valid existing rights. If necessary to construct new roads and trails for one of these purposes, construct them to the minimum standard, length, and number and avoid, minimize, and compensate for impacts.” 9 “GRSG-R-GL-063-Guideline – In PHMA, new recreational facilities or expansion of existing recreational facilities (e.g., roads, trails, campgrounds), including special use authorizations for facilities and activities, should not be approved unless the development results in a net conservation gain to GRSG and/or its habitats or the development is required for visitor safety.”10 The BLM applies the following standard to priority habitat areas only :

“(PHMA) Use existing roads or realignments whenever possible. If it is necessary to build a new road, and the use of existing roads would cause adverse impacts to GRSG, construct new roads to the appropriate minimum Gold Book standard and add the surface disturbance to the total disturbance in the PHMA if it meets the criteria in Appendix H, Guidelines for Implementation. Construct no new roads if the biologically significant unit (Colorado populations) and proposed project analysis area (Colorado MZ) is over the 3 percent disturbance cap, unless there is an immediate health and safety need, or to support valid existing rights that cannot be avoided. Evaluate and implement additional, effective mitigation necessary to offset the resulting loss of GRSG habitat.” 11(PHMA) Allow upgrades to existing routes after documenting that the upgrade will not adversely affect GRSG populations due to habitat loss or disruptive activities.12 The Organizations submit that such arbitrary boundary lines for significant management changes simply lacks any factual or scientific basis. At no point does the FEIS even attempt to justify the management differences that are proposed solely based on land management agencies. The arbitrary nature of the standard is compounded by the fact that USFS lands are consistently of lower quality to the Grouse and simply may not be occupied at all, further undermining any basis for more strict management of this low quality habitat. 3b. Landscape level research on route closures has shown them ineffective in addressing species management issues. The US Forest Service’s Rocky Mountain Research Station has recently released extensive analysis of the effectiveness of travel management restrictions on addressing sensitive species related issues. These conclusions specifically found that travel management was not effective in addressing these issues and the species related concerns were often beyond the scope of travel management to address. 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.”13 The Organizations would be remiss in not noting the relationship that the Research Stations conclusion has with the management within this Proposal. Dispersed motorized recreation’s possible impact on elk, deer and numerous other herd animals has been extensively studied by the National Park Service in addressing winter usage of Yellowstone Park. These analyses are completely relevant to any analysis of dispersed motorized recreation on the CRVO. If there were an impact to elk and deer, the ongoing research in Yellowstone Park would have noted this impact. These analyses have repeatedly found: “Based on these population-level results, we suggest that the debate regarding effects of human winter recreation on wildlife in Yellowstone is largely a social issue as opposed to a wildlife management issue. Effects of winter disturbances on ungulates from motorized and non-motorized uses more likely accrue at the individual animal level (e.g., temporary displacements and acute increases in heart rate or energy expenditures) than at the population scale. A general tolerance of wildlife to human activities is suggested because of the association between locations of large wintering ungulate herds and winter recreation. Habituation to human activities likely reduces the chance for chronic stress or abandonment of critical wintering habitats that could have significant effects at the population level, especially when these activities are relatively predictable.”14 The Organizations have to note that the biologists who performed the research in Yellowstone immediately acknowledged the social scientist’s position, namely that most concerns regarding wildlife management are based more on socially based user conflicts than on scientifically based findings regarding a negative impact. Another issue of higher impact to wildlife than motorized usage that must be addressed in management of recreation under a single standard would be the impacts of pedestrians with off leash dogs. There is a large body of evidence that concludes wildlife response to off leash dogs is consistently the highest levels of response.15 If closures are found necessary the route should be closed to all usage as grouse have consistently exhibited similar levels of response to motorized and non-motorized travel. 3c. Correspondence regarding the need for hunting limitations gives rise to management standards that are arbitrary and capricious should recreational access be limited. The Organizations will note that in correspondence dated November 20, 2012 the USFWS has specifically addressed the lack of need for closures to recreational hunting for the Greater Sage Grouse.16 This correspondence is consistent with previous listing decisions cited throughout these comments. Given the position of the USFWS on this issue, the Organizations would note a directly conflicting and arbitrary management position that could result from closures to recreational access in the Plan, such as those proposed. The arbitrary nature of such management is immediately evidenced when on the ground management is reviewed. This involves two persons recreating in the habitat one riding an OHV and the other personally actively hunting for Grouse. The Organizations believe any management position that riding an OHV near a Sage Grouse poses more of a threat to the birds survival than actively shooting at the Grouse conflicts with best available science and would lack legal or factual basis. This position must be avoided as it is simply arbitrary and capricious, especially when the large number of OHV users are identified as hunters. 4. The implications of changes in management standards are not sufficiently analyzed and are often contradictory. The Organizations are very troubled with the application of landscape level surface disturbance standards as part of the Plan. These standards will be exceptionally difficult to enforce or even calculate accurately on the ground and fail to address that often significant soil disturbance occurs on private lands adjacent to federal lands. There is no mechanism provided to address the application of these landscape level standards in areas where soil disturbance issues on federal lands will simply never address the source of the soil disturbance, which may very well be on private lands adjacent to the public lands.

While the Organizations believe accurate modeling of these standards, especially in boundary areas of habitat, will be difficult at best, this modeling must have occurred to some degree in the planning process. It is the Organizations position that the results of this modeling should have provided as part of the Plan to allow for public comment on possible impacts.

The levels of surface disturbance change significantly between Alternatives both in terms of absolute limits and areas that are going to be managed under each standard. Alternative D allows a 5% surface disturbance over all priority habitat (PPH) in comparison to 3% disturbance of priority habitat for Alternative B and a 3% surface disturbance in all designated habitat (ADH).

The impacts from this change is reflected in the Plan as follows:

Alternative B-Construction and realignment of roads and trails would be highly limited in PPH, as would upgrades to existing roads and trails. This alternative would also limit new construction in PPH to access valid existing rights so that any new construction that would cause the area to exceed 3 percent disturbance would require mitigation to offset the disturbance. This alternative provides more habitat protection than Alternatives A and D but not as much as Alternative C.

Alternative C-This alternative is similar to Alternative B but expands the restrictions on construction, realignment and upgrading to ADH. In addition, this alternative would expand the 3 percent disturbance cap to the entire area within 4 miles of a lek. Generally this alternative would be the most restrictive for new construction, realignment and upgrading of roads and trails, and therefore is expected to provide the greatest benefit to terrestrial wildlife.

Alternative D-This alternative applies restrictions to priority habitat that are more flexible than those outlined in the NTT report. Other than Alternative A, this alternative is the least restrictive for new construction, realignment and upgrading of roads and trails.17 The Organizations are not able to find any analysis for the basis of these assertions and would note that there are significant differences in the acreage of areas that are classified as priority habitat (1,576,000 acres) in comparison to all designated habitat (2,893,600 acres).18As a result of the large acreage differences in play between the standards, the Organizations believe that the 3% standard over almost 3 million acres could have far more impact than application of a 5% standard over approximately half that areas. These are comparisons that are not provided and are well outside the reach of any interested party to address in comments on the plan. As a result this information must be provided by the planners and simply has not. 5a.Route closures will impact a wide range of uses resulting in greater negative economic impacts. The Organizations are very concerned about any loss of routes and trails in areas that are to be designated habitat for the Grouse. The availability of these routes and trails for all recreational usage provides significant economic contributions to the many small municipalities in the vicinity of the habitat area. The high levels of recreational usage of these routes compounds risks of negative economic impacts from the loss of other economic activities on these lands. Economic impacts to non-recreational activities has already been identified as a significant concern, which was clearly articulated by the Western Governors Association in 2011 as follows:

The economic impacts of placing sage-grouse on the endangered species list would be severe, since much of the West’s grazing of rangeland, natural gas, oil, coal and wind resources coincide with sage-grouse habitat.19 Significant restrictions on access would clearly impact activities for which concern has already been voiced by the Western Governors Association. In addition to the priority economic concerns identified by the Western Governors Association, the Organizations would add economic impacts from losses of recreational usage of public lands as an additional element to be addressed as a significant concern. The dispersed trail network in the habitat areas provides significant access for all users of the areas, not just those seeking a motorized experience. 5b. Trail based recreation is an economic mainstay for many local economies. Many small communities in the vicinity of Grouse habitat are heavily dependent on recreational activities and tourism for survival of the community, after more traditional income sources like the mining and timber industries have left these areas. US Forest Service research indicates that a multiple usage trail network is an effective tool for the development and maintenance of local economies. This research specifically concluded: “Recreation and tourism economies are the mainstay for rural counties with high percentages of public land. Actions by public agencies to reduce or limit access to for recreation have a direct impact on local pocket books. Limiting access by closing roads, campgrounds, RV parking, and trails for all or one special interests group will impact surrounding communities. Visitors to public lands utilize nearby communities for food, lodging and support facilities.”20 While the development of a recreational trail network can be a significant benefit to local communities, the converse of this is also true as the loss of an existing recreational trail network can create significant negative economic impacts. The scope of losses from large route closures has been the basis for several studies. The findings of this research are consistent with the concerns regarding closures of routes voiced in these comments. In 1999 a joint study of University of Wyoming and US Department of Agriculture found that 72% of economic benefits from winter recreation would be lost with a seasonal closure of the Yellowstone Park to motorized recreation.21The high levels of economic impact to communities from closures is the result of the wide range of user groups that use a trail network to obtain their primary recreational experience. The Organizations vigorously believe large scale closures in Grouse habitat areas would have a similar impact on the local communities as those experienced by the communities adjacent to Yellowstone Park. These must be avoided or at least analyzed in the FEIS. These impact simply have not been addressed. 5c. Dispersed trail networks are multiple use resources. The Organizations believe that a brief discussion of what an OHV recreational user is will clarify why multiple use trails are of such concern when addressing economic impacts. Forest Service research indicates that families are the largest group of OHV users. This research found that almost 50% of users were over 30 years of age and highly educated. 11.4% of OHV users are 51 years of age or older.22 Women were a large portion of those participating in OHV recreational activities. 23 This research indicates that OHV recreationalists are frequently a broad spectrum outdoor enthusiasts, meaning they may be using their OHV for recreation one weekend but the next weekend they will be walking for pleasure (88.9%), using a developing camping facility (44.7%), using a Wilderness or primitive area (58.1%) fishing (44.6%) or hunting (28.4).24 As noted by the Forest Service research, motorized access to public lands is a key component of any recreational activity. This is completely consistent with the Organizations experiences for all recreational activities as most users to not have access to non-motorized means of game retrieval or do not have sufficient time to hike long distances to gain access to their favorite fishing hole or dispersed camping site. The wide range of recreation utilizing the dispersed trail network again weighs heavily in favor of caution of maintaining recreational access to areas that are to be designated Grouse habitat. 5d. Recently released research from the Western Governors Association finds recreational activity on public lands is largest economic contributor to western states. In 2012, the Western Governors Association (“WGA”) released the conclusions of multiple year research regarding the economic impacts of recreation to western states economies. Given the scale of these findings, the Organizations believe recreational usage would now be added to the priority concerns identified previous by the WGA. Recreation is the largest economic contributor to western state economies from public lands, which position is summarized in the report as follows:

“The Get Out West Advisory Group identified successfully managing the West’s recreation assets as a key factor in facilitating positive outdoor recreation experiences for the region’s citizens and tourists and for local economic development and job creation in communities around these places. “25 This research also compared recreational contributions to many other economic activities that were present in western states. These conclusions were summarized as follows: Overlooked Economic Giant - graphic26 The WGA economic impact analysis also highlighted 35 recreational opportunities throughout the western states. The overwhelming majority of these highlighted recreational locations involved the use of a dispersed trail network as part of the recreational experience. While many of these opportunities are outside areas to be designated habitat, analysis of these highlighted locations clearly evidences the critical role that the dispersed trail network plays in all recreational activities.

The WGA research did identify other activities as larger economic contributors to western states, but these activities were not connected to public lands or small municipalities such as those impacted by the habitat designation. Western Colorado communities are simply not know as banking, health care or insurance centers of the western states. They are however known for their exceptional recreational opportunities. The Organizations believe these findings warrant clear management standards that properly balance economic impacts from closures with benefits to the Grouse from the management standards. Failure to properly measure and balance all recreational interests will have profound effects on recreational access to public lands and will result in significant negative economic impacts to all communities that will do little to benefit the Sage Grouse. 5e. Dispersed motorized recreation contributes almost $1 billion a year to the Colorado economy. Recreational usage of public lands is a significant portion of the Colorado economy, especially in the smaller mountain communities which have already lost more traditional sources of revenue, such as timber, farming and mining. In 2012, COHVCO commissioned an economic impact study to determine the economic impacts of OHV recreation on the Colorado economy. A copy of this economic impact study is attached for your reference. This study found that almost 1,000,000,000 dollars of positive economic contribution and 10,000 jobs resulted from OHV recreation to the State economy.27

Direct Impact NW CO SW CO Cntrl CO NC CO East CO
Direct sales $28,290,700 $77,828,161 $101,974,816 $49,225,045 $14,458,423
Jobs 332 1,100 1,297 639 184
Labor Income $13,579,699 $30,274,949 $45,595,139 $21,241,172 $6,445,483
Value added or GRP $17,062,037 $40,246,751 $57,673,570 $27,495,641 $8,264,186
State and Local tax $1,422,904 $4,515,047 $5,417,621 $2,679,690 $803,708
Federal tax $274,985 $781,945 $837,600 $528,728 $112,494
Other Activity
Indirect Sales 15,029,394 $51,820,687 $55,614,367 $18,889,621 $13,935,630
Jobs

128

463

463

181

100

Labor Income $4,623,048 $15,453,087 $17,559,193 $4,725,241 $4,865,225
Other Prop Income $9,190,579 $30,021,789 $33,618,200 $10,555,900 $8,337,045
State and Local tax $757,059 $2,523,671 $2,539,796 $873,167 $592,312
Federal Tax $146,306 $401,852 $392,669 $172,284 $82,905
Total Activity
Sales $43,320,094 $129,648,848 $157,589,184 $68,114,666 $28,394,053
Jobs

460

1,564

1,760

819

284

Labor Income $18,202,7474 $45,728,036 $63,154,332 $25,966,413 $11,310,708
Other Prop Income $26,252,616 $70,268,540 $91,291,770 $38,051,541 $16,601,231
Sales and Local tax $2,179,964 $7,038,718 $7,957,417 $3,552,857 $1,396,020
Federal tax $421,291 $1,120,798 $1,230,269 $701,012 $195,400

28

Over $827,000,000 of this economic impact and almost 4,887 jobs result from motorized recreation in the Colorado areas proposed to be designated as habitat. 29 In addition to this direct positive economic impact to Colorado communities, OHV recreation accounted for over $22 million in tax revenue to state and local municipalities.30 These are tax revenues that motorized recreational users of the forest pay with little objection to obtain the benefits of their sport, and are used to address a wide range of needs for the local municipal government. Given current economic conditions, our Organizations believe these positive economic impact numbers must be meaningfully addressed in all government activities. 5f. Colorado Parks and Wildlife identifies the significant positive impacts to the Colorado economy from hunting and fishing in Grouse habitat areas. In 2008, Colorado Parks and Wildlife commissioned a study to determine the economic contributions to the Colorado economy from hunting and fishing. A discussion of these impacts is provided as a part of these comments in order to allow for full understanding and analysis of the significant impacts that are associated with the dispersed trail network in the areas to be designated as habitat. Closures of dispersed trail networks are frequently of significant concern to those who use the dispersed trail networks for hunting and fishing activities.

The CPW report identified that hunting and fishing provided over $1.8 billion to the Colorado economy in 2008. 31 For many hunters and fisherman, motorized access on the dispersed trail network is a key component of their hunting and fishing experience as the average hunter does not have access to teams of horses to remove elk from inaccessible areas or days to hike into their local fishing area. These access related expenditures are encompassed in the CPW economic impact calculation as analysis includes expenditures for trucks, campers, recreational vehicles, boats and other motorized equipment.32Access related expenditures that can only be fully utilized for hunting and fishing with the existence of a dispersed trail network.

The CPW analysis also identified spending on hunting and fishing in the Colorado counties that are impacted by designations of habitat as follows:

County Direct Expenditures ($ in thousands) Total Impact ($ in thousands) Jobs
Moffat 18,450 31,170 325
Rout 27,980 45,630 528
Jackson 9,710 14,020 144
Larimer 89,070 154,830 1,739
Grand 28,680 49,270 566
Eagle 38,860 67,640 908
Pitkin 14,250 24,850 327
Mesa 43,980 76,100 813
Garfield 31,700 54,420 579
Rio Blanco 17,890 30,040 305
Summit 29,170 51,800 708
TOTAL 349,740 599,770 6,942

33The Organizations believe that economic impacts from possible reductions in hunting and fishing activity in areas to be designated as habitat must also be accounted for in the development of management standards for the habitat. As clearly identified by CPW, these economic contributions are significant and access is a key component of the hunting and fishing experience for most users. Management clarity and consistency of analysis of impacts is a critical portion of any analysis of management alternatives. These simply have not been discussed in the Plan. 6a. Decisions regarding the lack of impact of motorized recreation on the Greater Sage Grouse must be accounted for in habitat management. As noted in the status proposal for the Gunnison Sage Grouse, there is significant overlap in research between the Greater Sage Grouse and Gunnison Sage Grouse. The USFWS Greater Sage Grouse status decision clearly states:

“Gunnison sage-grouse and greater sage-grouse (a similar, closely related species) have similar life histories and habitat requirements (Young 1994, p. 44). In this proposed rule, we use information specific to the Gunnison sage-grouse where available but still apply scientific management principles for greater sage-grouse (C.urophasianus) that are relevant to Gunnison sage-grouse management needs and strategies….” 34 As previously noted in these comments, listing decisions relative to both the Greater and Gunnison Sage Grouse have explicitly found that recreational usage of Sage Grouse habitat is a low priority threat to the habitat. While the FWS findings cited above do not specifically identify dispersed motorized recreation, they provide an extensive discussion of possible motorized recreational impacts prior to concluding that recreation has a minimal impact on the sage grouse. The 2010 USFWS listing decision again stated that adoption of a designated trail system for recreational purposes is of significant benefit to the sage grouse. The 2010 USFWS listing decision discussed changes to designated trails on USFS lands as follows:

“As part of the USFS Travel Management planning effort, both the Humboldt-Toiyabe National Forest and the Inyo National Forest are revising road designations in their jurisdictions. The Humboldt-Toiyabe National Forest released its Draft Environmental Impact Statement in July, 2009. The Inyo National Forest completed and released its Final Environmental Impact Statement and Record of Decision in August 2009 for Motorized Travel Management. The ROD calls for the permanent prohibition on cross country travel off designated authorized roads.” 35 Clearly, if the designated route system that was being adopted by these Forests was insufficient for the protection of Sage Grouse habitat, such a position would have been clearly stated in this discussion given the large body of research that exists for the management of the Sage Grouse. This position weighs heavily in favor of maintaining recreational access and must be analyzed in the FEIS. It simply has not been mentioned. 6b. Two recently released texts support FWS positions regarding the minimal risk recreational usage of habitat areas poses. Two recently released texts from nationally acknowledged grouse experts have specifically addressed the management of Greater Sage Grouse habitat and included extensive discussions of all possible threats to Grouse.36 The Organizations believe it is significant to note that the Sandercock text simply never addresses possible motorized recreational concerns in habitat areas. The Knick and Connolly text discusses OHV recreation in a very general manner in two paragraphs of a text that totals 646 pages.37 This discussion only addresses trends in usage of OHVs. These limited analysis is significant as these are resources one would expect to include significant discussions of OHV recreational impacts on the Grouse if these were significant concerns regarding OHV recreation creating possible impacts on the Grouse. The silence of these resources on this issue must be construed as a determination at this usage is a minimal threat to the species.

While these texts do not significantly address motorized recreation, the texts do specifically confirm access to public lands is a major issue for grouse management. The Connolly text specifically states: “Many people live in these locations primarily because of access to public lands for recreation.“38 The Organizations must note the texts identification that living in an area primarily for access to public lands supports the Organizations concerns regarding the type of impacts that must be balanced in the creation of management standards for habitat areas.

The Organizations are aware there is a significant body of peer reviewed research for the management of the Grouse. The Organizations believe any concerns regarding dispersed recreation on the Grouse would have been identified in the current body of research summarized in these texts. The Organizations believe the minimal discussion of this issue clearly supports the position that was taken in the 2010 Greater Sage Grouse listing decision, mainly that dispersed recreation is a minimal threat to the Grouse. As the benefits of a designated or existing trail system are approved in the listing decision and the minimal threat of impacts from motorized recreation is simply not discussed in two recent texts from National experts on the Grouse, the Organizations believe restricting travel to existing routes in Grouse habitat is a logical, scientifically based and credible starting point for addressing motorized access to critical habitat areas. Again, a detailed statement of the hard look of NEPA does not support or justify the proposed restrictions or the arbitrary nature of the management boundaries that are differentiated entirely based on the agency managing the areas. 6c. Restricting travel to existing routes would provide significant benefit for the Grouse with minimal economic risk in critical habitat areas. The Organizations are intimately familiar with designations of routes under the Forest Service’s Travel Management Rule. The Organizations would support limitations of travel to existing routes in habitat areas of the Grouse as part of a habitat designation. Any permanent closures of habitat areas would be opposed as this position would conflict with best available science and USFWS listing decisions on the Grouse. As previously noted in the Greater Sage Grouse listing decision, a designated route system appears to be a significant benefit to maintaining sage grouse habitat and sage brush health. The Organizations believe these designations would be highly complied with if properly implemented, as most users are very familiar with requirements to stay on designated routes for travel as this is the common standard for dispersed route travel on public lands.

While the designation of travel routes is basically completed for Forest Service lands in the areas proposed to be designated habitat for the Grouse, the designation process remains on going for many areas that are under BLM management. This has resulted in large portions of the actively used habitat not being currently subject to a requirement that travel is limited to existing routes. The Organizations believe that restricting all travel to existing routes in habitat areas would provide significant benefit to the Grouse and the sage brush the grouse depends on for habitat, when compared to the current open area designations. The Organizations believe such a change could provide significant benefit to the Grouse with very little risk of negative economic impacts to local communities as recreational access and opportunities could be maintained. The Organizations believe the significant benefits that can be achieved for the Grouse at minimal costs weighs heavily in favor of meaningful analysis of limiting travel to existing routes as a method to preserve public access to the habitat areas for recreational usage. This alternative is simply never addressed in the FEIS or again justify management boundaries that are proposed to differentiate standards based solely on the agency managing the area. 6d. Use of seasonal route closures to avoid lek areas would minimize economic impacts. As part of the travel management process, seasonal limitations on use of designated routes are frequently made to avoid wildlife habitat areas or to avoid sensitive areas at a particular times of the year for a particular species, such as spring closures of routes in elk calving areas. These seasonal closures have been found to be highly effective in limiting impacts on wildlife during these sensitive periods and maintaining public access to these areas for the rest of the year when the species has moved from the area. In the case of elk calving areas, elk simply do not use calving areas in the summer as the elk traditionally move to higher areas for grazing purposes. As the elk have moved from these areas, use of routes in the area creates little to no risk of negative impacts to the animals.

Similar to elk, research indicates that sage grouse habitat and needs varies greatly over the course of a year. 39 The habitat designation decision notes this highly seasonal mobility as follows:

“Gunnison sage-grouse make relatively large movements on an annual basis. Maximum Gunnison sage-grouse annual movements in relation to lek capture have been reported as 18.5 km (11.5 mi) (GSRSC 2005, p. J–3), and 17.3 km (10.7 mi) (Saher 2011, pers. comm.), and individual Gunnison sage-grouse location points can be up to 27.9 km (17.3 mi) apart within a given year (Root 2002, pp. 14–15). Individual Gunnison sage-grouse have been documented to move more than 56.3 km (35 mi) to wintering areas in the Gunnison Basin in Colorado (Phillips 2011, pers. comm.). While it is likely that some areas encompassed within these movement boundaries are used only briefly as movement areas, the extent of these movements demonstrate the large scale annual habitat requirements of the species.”40 Given the high levels of mobility displayed by the Grouse throughout the year, closing routes in all habitat areas would be problematic from an economic perspective. The overwhelming body of grouse research surrounds impacts and activities of the grouse in their lek areas, where population concentrations are highest and where the highest response to disturbance is identified. Research also indicates that lek areas are annually used for long periods of time by the same group of Grouse.41 Discovery of new lek locations is a rather rare occurance and discovery of single new lek sites was of enough significance to warrant noting in the status decision. 42 As researchers appear to have identified almost all lek areas in the habitat areas, this will make identification of routes around active leks in the habitat areas a management tool that could be quickly used to gain significant benefits to the Grouse, when used in conjunction with a seasonal closure to mitigate impacts on an actively used lek area.

Research indicates that seasonal closures for the protection of leks is a highly effective tool, which the status decision specifically notes as follows:

“The BLM and Gunnison County have 38 closure points to minimize impacts to Gunnison sage-grouse within the Basin from March 15 to May 15 each year (BLM 2009, p. 40). While road closures may be violated in a small number of situations, road closures are having a beneficial effect on Gunnison sage-grouse through avoidance or minimization of impacts during the breeding season.”43 The Organizations believe that seasonal closures of routes will also only be effective if the nesting areas are seasonally closed to other uses as well. Clearly closing a route to address concerns regarding its proximity to leks and nesting areas will not be effective if grazing, lek viewing and other activities identified as similar or higher risk activities for the habitat areas are continued. 7. Recreational closures alone are insufficient to address habitat concerns. As extensively noted in both the status and habitat proposals, there are a wide range of activities that are negatively impacting the Gunnison Sage Grouse, many of which are higher priority threats than recreational usage of the habitat areas. The following provisions are included in these comments to highlight some areas and activities that must also be addressed if large scale route prohibitions are found to be required. It has been the Organizations experience with other endangered or threatened species that often isolation of a single usage to address impacts from a wide range of usages creates significant public opposition as users being restricted believe they are being singled out arbitrarily. Management decisions isolating single uses frequently fail and generate significant public opposition for future management of the issue. This public support will be critical as there are high levels of private lands is some habitat areas.

The need to address a wide range of issues is supported in the status decision as closures of recreational access alone is insufficient to address habitat degradation, as the status decision specifically notes as follows:

“Based on modeling results demonstrating the effects of roads on Gunnison sage-grouse (Aldridge et al. 2011, entire—discussed in detail in Factor A), implementation of even the most restrictive travel management alternatives proposed by the BLM and USFS will still result in further degradation and fragmentation of Gunnison sage-grouse habitat in the Gunnison Basin.” 44>

The Organizations vigorously believe that if access to any area is to be closed for recreational purposes, other higher priority threats must also be prohibited in that area, as research indicates recreational closures simply will never be sufficient to address the wide range of activities that degrade habitat areas. The Organizations are vigorously opposed to any decisions to rely on a single activity to address the wide range of habitat issues, in light of the research that indicates prohibitions of that activity will simply never address the habitat issues contributing to the Grouse’s decline.

Several of the wide range of factors identified as habitat concerns are noted here as these issues would also have to be addressed with closures to address the decline of the Sage Grouse, many of which are not related to recreational activities. Dogs are a factor that significantly impairs habitat quality as noted in the status decision:

“Domestic dogs accompanying recreationists or associated with residences can disturb, harass, displace, or kill Gunnison sage-grouse. Authors of many wildlife disturbance studies concluded that dogs with people, dogs on leash, or loose dogs provoked the most pronounced disturbance reactions from their study animals (Sime 1999 and references within). The primary consequences of dogs being off leash is harassment, which can lead to physiological stress as well as the separation of adult and young birds, or flushing incubating birds from their nest.”45 This concern is well documented as a significant wildlife management issue for many species.46 The Organizations would be very opposed to any management standards for habitat areas that precluded motorized travel but continued to allow access for pedestrians with dogs as the listing decision specifically identifies similar levels of concern for these uses.

Grazing is also another usage of habitat areas that poses a similar level of threat to the habitat as roads. This concern is summarized in the listing decision as follows:

“Livestock management and domestic grazing have the potential to degrade Gunnison sage-grouse habitat. Grazing can adversely impact nesting and broodrearing habitat by decreasing vegetation available for concealment from predators. Grazing also has been shown to compact soils, decrease herbaceous abundance, increase erosion, and increase the probability of invasion of exotic plant species (GSRSC 2005, p. 173).” 47 The Organizations must also note that lek viewing is currently not a significant issue for the Sage Grouse, however the Organizations believe that access to the lek area for viewing would create similar if not higher levels of disturbance to the Grouse when compared to a person simply passing through the area. The Organizations believe that if all recreational trail access is fully closed in an area then these activities should be prohibited as well.

The Organizations must again note that the above activities are not singled out due to heightened concerns for the activities but rather to briefly identify many of the usages that would need to be prohibited in a habitat area if the decision was made to permanently close the area to trail usage. While these additional restrictions would create economic concerns, the Organizations believe these economic impacts would be balanced by the fundamental fairness of treating similar threats to the Grouse in a similar manner. It has been the Organizations experience that arbitrarily permitting some uses while prohibiting others often fosters significant frustration from the public and develops little public support for conservation efforts. Given the high levels of habitat areas that are in private lands, the Organizations believe public support will play a critical role in any long term recovery efforts for the Grouse. 8. Conclusion The Organizations believe that the protection of any endangered or threatened species is a critical part of federal land management. The Organizations are also aware that proper identification of the threats and issues causing any species to be endangered is critical to developing low cost effective plans for the protection of that species. However, these issues have not been properly or meaningfully analyzed in the Plan. The Organizations are forced to appeal the Plan given the arbitrary and capricious nature of proposed recreational usage of routes and trails in the Plan. While BLM lands allow for maintenance and expansion of routes in priority habitat areas, lands managed by the USFS are subject to a mandatory prohibition on route construction, regardless of why the construction is being undertaken. The arbitrary nature of this standard is compounded by the fact that most priority habitat is under BLM management and USFS management areas are only general habitat areas of marginal value and may not even be occupied by any Grouse at this time. The Organizations further submit that absolutely no attempt is made in the FEIS to provide a scientific basis for the management conflict, why USFS managed lands might be more valuable habitat areas or the need to address recreational usage of habitat, which has been repeatedly identified as an issue of limited concern to habitat quality. The Organizations submit that any management standards that are truly science based would not draw boundary lines for changes in management based solely on the agency that is administering the lands. The Organizations submit that avoiding such management was one of the goals of the consolidated planning process and moving forward with such management is arbitrary and capricious as a matter of law.

The Organizations are very concerned that the Plan does not accurately reflect the priority or significance of particular threats to the Grouse that were identified in the FWS listing decision. The FWS listing decision notes that moving to a designated trail system, as BLM is already doing nationally, is one of the largest and most important protections for grouse habitat involving recreational activity. The failure to properly prioritize threats and management priorities will result in inconsistent management, which may target issues that will generate significant costs and economic impacts and generate little benefit to the grouse.

The Plan proposes many standards, the application of which is not clearly described or is described in a conflicting manner in numerous points in the Plan such as the basis for surface disturbance standards or justification of management changes to grouse habitat based solely on the land management agency managing the area. Analysis of these concerns often are combined with other standards that will clearly impact the overall access not only to habitat areas but also to recreational opportunities outside the habitat areas. These cumulative impacts are never addressed. An example of the combined impacts would be limiting usage to designated trails in priority habitat and limitations of surface disturbance to 3% or 5% of the habitat area. The Plan most commonly refers to the surface disturbance standards in terms of gas and oil development but at no point is there any limitation of the surface disturbance standards and usage of the route. Rather than specifically limiting impacts, the Plan often speaks to the availability of offsetting closures in the vicinity of the proposal area to minimize impacts. At no point is there any discussions of how these off sets would function on the ground.

Discussions of oil and gas surface disturbance standards often mention an offset being available for projects. The Organizations will note this off-set of usages will bring oil and gas development into direct conflict with recreational usage. The standards for this interaction or analysis of possible impacts simply are not provided in the Plan. The Organizations will note that often the intent of many routes is simply not determinable and will result in application of the surface disturbance standards to routes not related to oil and gas. The Organizations are assuming in these areas, designated routes would be insufficient protection but we simply are not sure this is the standard and are not able to determine how much of the planning area would be impacted by the 3% or 5% surface disturbance limitation.

The Organizations are able to support certain principals provided in the Plan, such as the use of seasonal closures around active lek sites. Restrictions of landscape level open riding areas to designated routes and trails networks in priority habitat is also acceptable to the Organizations. This designated routes standard becomes problematic when applied to areas that may be suitable for an open riding designation and are in a general habitat that may not have been occupied by the Grouse for decades. The application of these standards becomes very murky when the 3% or 5% surface disturbance standards are applied. The Plan simply must describe how all these issues will be applied on the ground and simply has not been.

Please feel free to contact Scott Jones at 518-281-5810 or by mail at 508 Ashford Drive, Longmont, CO 80504 for copies of any documentation that is relied on in these comments or if you should wish to discuss any of the concerns raised in this protest/appeal further.

Respectfully Submitted,

Scott Jones, Esq.CSA
President
COHVCO, TPA Authorized Representative

D.E. Riggle
Director of Operations
Trails Preservation Alliance

    • [1]See, Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 F3d 437 at pg 442; 42 ERC 1594, 26 Envtl. L. Rep 21276.
    • [2]See, Hughes River, Supra note 1 at pg .
    • [3] See, Hughes River, Supra note 1 at pg
    • [4] See, Baltimore G& E Co v. NRDC; 462 US 87 (1983) at pg 98.
    • [5] See, 40 CFR 1500.1(b)
    • [6] 40 CFR 1500.1
    • [7] BLM Manual H-1790-1 – NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK – pg 78.
    • [8] BLM Manual H-1790-1 – NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK – pg 4.
    • [9] See, Sage Grouse FEIS at pg 2-22.
    • [10] See, Sage Grouse FEIS at pg 2-38.
    • [11] See, Sage Grouse FEIS at pg 2-15.
    • [12] See, Sage Grouse FEIS at pg 2-15.
    • [13] See, USDA Forest Service, Rocky Mountain Research Station; The Southern Nevada Agency Partnership Science and Research Synthesis; Science to Support Land Management in Southern Nevada; Executive Summary; August 2013 at pg 38.
    • [14] US Park Service; White and Davis; Wildlife response to motorized recreation in the Yellowstone Park; 2005 annual report; at pg 15.
    • [15] CHAPTER 8 DOMESTIC DOGS IN WILDLIFE HABITATS EFFECTS OF RECREATION ON ROCKY MOUNTAIN WILDLIFE A Review for Montana MONTANA CHAPTER OF THE WILDLIFE SOCIETY Written by Carolyn A. Sime – Wildlife Biologist, Montana Fish, Wildlife and Parks, Kalispell; September 1999
    • [16] A copy of this correspondence is attached as Exhibit 1.
    • [17] LUPA at pg 463.
    • [18] LUPA at pg 42.
    • [19] Western Governors Association; Policy Resolution 11-9; Sage-grouse and Sagebrush Conservation; July 11, 2011 at pg 2.
    • [20] Humston et al; USFS Office of Rural Development; Jobs, Economic Development and Sustainable Communities

Strategizing Policy Needs and Program Delivery for Rural California

    ; February 2010 at pgs 51-52

  • [21] David Taylor; Economic Importance of the Winter Season to Park County Wyoming; University of Wyoming Press; 1999 @ pg 2.
  • [22] Cordell et al; USFS Research Station; Off-Highway Vehicle Recreation in the United States and its Regions and States: A National Report from the National Survey on Recreation and the Environment (NSRE) February, 2008; pg 56.
  • [23] Id at pg 56.
  • [24] Id at pg 41-43.
  • [25] Western Governors Association; Managing the Regions Recreational Assets; Report of the Get Out West Advisory Group to the Western Governors’ Association; June 2012 – pg 1.
  • [26] Western Governors Association; A Snapshot of the Economic Impact of Outdoor Recreation; prepared by Outdoor Industry Foundation; June 2012 at pg 1.
  • [27] COHVCO Economic Contribution Study of Off Highway Vehicle Use in Colorado – 2012; Lewis Burger Group; pg 15.
  • [28] COHVCO Economic Contribution Study of Off Highway Vehicle Use in Colorado – 2012; Lewis Burger Group; pg 17.
  • [29] See, Id at ES-6.
  • [30] See, Id at pg ES-5.
  • [31] See, Colorado Division of Wildlife; Final Report; The Economic Impacts of Hunting, Fishing and Wildlife Watching in Colorado; Sept 26, 2008; at pg Exec Summary at pg 1.
  • [32] See, Id at Section 3 pg 10.
  • [33]See, Colorado Division of Wildlife; Final Report; The Economic Impacts of Hunting, Fishing and Wildlife Watching in Colorado; Sept 26, 2008; at pg Exec Summary at section 4 pg 16& 17.
  • [34] See, status proposal at pg 2488
  • [35] See, 12-month findings for petition to list the Greater Sage Grouse(Centrocercus urophasianus) as threatened or endangered. Fed Reg. (March 5, 2010) at pg 92.
  • [36] See, Sandercock et al; Ecology, Conservation and Management of the Grouse; University of California Press 2011; see also ST Knick and JW Connolly (editors) Greater Sage Grouse; Ecology and conservation of a landscape species and its habitats. Studies in Avian Biology (vol 38), Univ of California Press, Berkeley CA.
  • [37] See, Knick and Connolly at pg 216.
  • [38] See, Knick and Connolly at pg 216.
  • [39] See, Connolly JW, ET Rinkes and CE Braun. 2011. Characteristics of Greater Sage Grouse habitats; a landscape species at micro- and macroscales. pg 69-83 in ST Knick and JW Connolly (editors) Greater Sage Grouse; Ecology and conservation of a landscape species and its habitats. Studies in Avian Biology (vol 38), Univ of California Press, Berkeley CA.
  • [40] See, Endangered and Threatened Wildlife and Plants; Endangered Status for Gunnison Sage-Grouse; 78 Fed. Reg. 2486 (Jan. 11, 2013) at pg 2543. (hereinafter referred to as the “status proposal”).
  • [41] See, status proposal at pg 2488-2495.
  • [42] See, status proposal at pg 2494.
  • [43] See, status proposal at pg 2532 .
  • [44] See, status proposal at pg 2526.
  • [45] See, status proposal at pg 2532.
  • [46] See, CHAPTER 8; DOMESTIC DOGS IN WILDLIFE HABITATS EFFECTS OF RECREATION ON ROCKY MOUNTAIN WILDLIFE A Review for Montana MONTANA CHAPTER OF THE WILDLIFE SOCIETY Written by Carolyn A. Sime – Wildlife Biologist, Montana Fish, Wildlife and Parks, Kalispell September 1999.
  • [47] See,status proposal at pg 2505.
Continue Reading

Magdalena RD Travel Management Proposal Protest

pdficon_large.gif
June 24, 2015

Cal Joyner, Regional Forester
333 Broadway Blvd. SE
Albuquerque, NM 87102

Re: Magdalena RD Travel Management Proposal Protest

Dear Mr. Joyner:

Please accept this correspondence of the protest/appeal of the Trail Preservation Alliance with regard to the Magdalena Travel Plan (“the Proposal”). Prior to addressing the specific concerns on the Proposal, TPA believes a brief summary of the Organization is necessary. The Trail Preservation Alliance (“TPA”) is a 100 percent volunteer organization whose intention is to be a viable partner, 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 of the sport and takes the necessary action to insure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands.

Executive Summary.

TPA has participated in a huge number of Ranger District level travel management plans and is very concerned regarding the limited analysis provided in the Proposal’s EA. It has been TPA experience that an EIS is the standard level of analysis relied on for district level plans in order to insure a legally sufficient analysis of issues is provided on what is always a difficult and contentious issue for the USFS to address. This is again proven true on the Magdalena as the overwhelming basis for public comment on the draft was the closure of routes. While the vast amount of public comment was related to limiting closures of routes, the Proposal failed to address many basic flaws in the draft EA on the underlying research, such as failing to fully explore current management, failing to provide a full range of alternatives on contested issues and failing to meaningfully address economic impacts from the Proposal.

TPA submits that given this overwhelming public input seeking to maintain current levels of multiple use access to the area, which is consistent with credible input from a wide range of partners, there is clearly unresolved conflicts about alternative uses of available resources. This conflict mandates a full, complete and meaningful review of these issues as a matter of law under NEPA.

TPA submits that two alternatives are available that satisfy the purpose and need of the proposal and do not close 40% of the routes in the planning area. The first alternative that is available and never addressed is simply recognizing the existing routes in the area and placing them on an MVUM. As the purpose and need is clearly identified as the need for the Magdalena RD to comply with the Travel Management Rule, this alternative has frequently been used by the USFS to achieve this goal. TPA submits that many ranger districts facing budget issues frequently identify existing routes in the district on their MVUM and simply do not close any routes. This decision has been frequently litigated and the USFS has been highly successful in defending these decisions. The second alternative that was simply never addressed would be the determination that existing roads could be designated as trails and allowed to remain open for access to recreational opportunities, as the Mount Taylor Ranger District of the Cibola NF recently determined was a viable means to achieve the goals and objectives of the Proposal. TPA would note that the purpose and need of the Mount Taylor project and the Proposal are almost exactly the same, and as a result this management clearly represents an alternative that was not explored. TPA submits this comparison is highly relevant as the Mount Taylor Ranger District is immediately adjacent to the Magdalena District in the Cibola NF. Why the alteration of roads to the lower trail level of classification was not explored remains unresolved and entirely unclear in the final EA and related documents. TPA vigorously submits that the analysis provided to date artificially limits the scope of alternatives provided in violation of NEPA.

Agency determinations regarding the need for closures of approximately 40% of the routes in the planning area are never analyzed or reviewed and fall well outside alternatives which could fulfill the purpose and need of the project. TPA submits there are clearly two management options to comply with the TMR, additional analysis must be provided to address the need to close an additional 40% of routes in the planning area as is the preferred alternative of the Proposal. After an extensive review of the EA, this analysis simply cannot be located as no reasons for closures, such as resource impacts, Endangered Species concerns or limited USFS budgets are even mentioned.

TPA submits that development of all alternatives for usage of current resources simply has not occurred and has compounded failures to meaningfully address the economic impacts to local communities from the Proposal. Rather than meaningfully preparing an EA, the complete lack of information on economic impacts from altered recreational usage is noted and the EA simply moves forward. TPA submits this falls well short of the hard look at issues required by NEPA.

The only non-recreational economic activity that is identified in the Proposal as possibly being impacted by the Proposal is firewood gathering. This position simply lacks any factual basis as USFS documentation identifies that firewood gathering is 17th on the list of reasons people visit the planning area. TPA vigorously asserts that motorized access plays a critical role in the other 16 activities higher on the list of reasons people visit the area, and no reason is given for why possible impacts to these 16 other activities are not addressed.

Each of these issues is a per se violation of NEPA requirements and mandate the Proposal be overturned and returned to the district in order for an accurate economic analysis to be performed and all alternatives be explored.

2a. The sufficiency of the scope of an EA is subject to a DeNovo standard of review as this is a question of law.

TPA submits that there are three issues to be reviewed in this appeal. Two of these issues are subject to a “de Novo” standard of review, mainly economic analysis determinations and the compliance with federal planning requirements, and one issue is subject to an review under the arbitrary and capricious standard. TPA submits that a detailed statement of high quality information simply has not been provided to justify the closure of approximately 40% of routes on the Magdalena RD, when the purpose and need of the project can be achieved by simply adopting existing routes and publishing their MVUM. TPA further submits that admitting there is no user information to allow for review of the economic impacts of alternatives is a violation of the NEPA requirements that all alternatives be given a hard look at in order to address unresolved conflicts regarding usage of existing resources .

TPA commends the Ranger District is attempting to streamline the NEPA review process as mandated by the American Recovery and Reinvestment Act1 and TPA does not contest that an EA analysis is not required to comply with high levels of detail provided in an EIS. TPA vigorously asserts that at no point is an EA level of analysis allowed to move forward when there are critical gaps in data being relied on and a full range of alternatives has not been provided as directly evidenced by the complete lack of a baseline alternative for many issues.

CEQ regulations address the sufficiency of EA level analysis of the range of alternatives and impacts under an Environmental Assessment as follows:

“Environmental assessment: …. (b) Shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.2

§102(2)(E) of NEPA specifically states the scope of review for contested issues under an EA is as follows:

“(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;”3

Relevant Court rulings applying section 102(2)(E) have specifically stated:

“This Court . . . has not construed section 102(2)(E) narrowly to apply only to agency actions that propose an identifiable use of a limited resource like park land or fresh water. Instead, we have ruled that federal agencies have a duty under NEPA to study alternatives to any actions that have an impact on the environment, even if the impact is not significant enough to require a full-scale EIS.” 4

TPA submits that there are clearly unresolved conflicts concerning alternative uses of available resources and that the current road and trail network in the planning area represents an available resource. These types of projects are exactly the type of federal actions where the impacts to the human environment were to be fully analyzed. The sufficiency of the conflict resolution is subject to the heightened De Novo standard of review as a result of the critical importance to comply with this basic legal mandate.

TPA submits that the unresolved conflict regarding existing road and trail resources involves the determination by the Ranger District that none of the roads and trails could be subjected to lower levels of management and maintenance, Such limited management would continue to allow the high quality recreational opportunities to be provided and minimize any negative economic impacts to local communities that could result from loss of these opportunities. The nature of this conflict was directly evidenced by the fact that access to the Magdalena RD was the single largest issue that arose in the public comment process and that the Mount Taylor Ranger District pursued exactly this plan in their recent Travel Management Plan, which had an identical purpose and need as the Proposal.

The issue of limited access to public lands has also been identified as an ongoing conflict regarding existing resources in a wide range of documents from the USFS, it planning partners such as the Western Governors Association and the New Mexico Statewide Comprehensive Outdoor Recreation Plan(“SCORP”) and reports from various federal agencies. TPA submits that the decision to move forward with the Proposal without addressing the lack of economic analysis and an illegally narrow scope of alternatives that did not address conflict regarding access to existing routes was done at the peril of the planners. The complete lack of a baseline alternative for many facets of the EA was the basis of a wide range of comment from an exceptionally diverse range of users during the comment period. The decision to move forward with the insufficient baseline of analysis and range of alternatives has resulted in an EA that suffers from many flaws and facial violations of NEPA which can only be addressed by returning the EA to the district for additional analysis and alternatives may be developed to comply with NEPA requirements.

2b. The standard of review for economic analysis is a de novo standard as the Courts have consistently substituted their judgment regarding the accuracy of economic analysis.

Courts have consistently held agencies to a much tighter level of review of economic analysis when compared to other issues within the agency expertise in the NEPA process as the court makes their own conclusions regarding the accuracy of review without deference to agency findings. Relevant court rulings addressing economic analysis in NEPA have concluded:

“an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.” 5

The Court then discussed the significance of economic analysis in planning as follows:

“Misleading economic assumptions can defeat the first function of an EIS by impairing the agency’s consideration of the adverse environmental effects of a proposed project. See, South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011-12 (5th Cir.1980). NEPA requires agencies to balance a project’s economic benefits against its adverse environmental effects. Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1113 (D.C.Cir.1971). The use of inflated economic benefits in this balancing process may result in approval of a project that otherwise would not have been approved because of its adverse environmental effects. Similarly, misleading economic assumptions can also defeat the second function of an EIS by skewing the public’s evaluation of a project.” 6

The level of accuracy of the hard look at economic analysis applied by the Court in the Hughes River decision is significant as the Hughes River Court invalidated an EIS based on an error in economic contribution calculations of approximately 32%. 7 TPA submits that creation of the comparison between current usage and usage after implementation of the EA simply is not possible directly evidencing a violation of the Hughes River decision. No baseline of visitation to the area is provided to attempt to apply economic analysis of recreational usage that is commonly available. In the Proposal, economic analysis simply identified the insufficiency of information as follows:

“Insufficient information exists to accurately estimate changes in recreation use that would occur under implementation of the action alternatives analyzed in this report.” 8

Given this statement, TPA submits that the economic analysis of the EA is facially insufficient and the determination that there will be no impacts to recreational spending as a result of the proposal simply lacks any factual basis. TPA submits that this failure to provide even basic information is a per se violation of NEPA as there is a large range of user spending profiles and a wide range of recreational activities relying on the network of routes in the planning area to achieve their recreational objectives. These issues were raised in the comment period from a wide range of users and the EA never attempts to resolve this issue but rather dismisses recreational impacts and only identifies all other activities that might be impacted as firewood gathering. This position is a per se violation of NEPA and the Hughes River decision.

2c. The mandated hard look of NEPA at issues simply has not occurred in the Proposal.

TPA believe a brief summary of the arbitrary and capricious standard of review that are applied by Courts reviewing the hard look of an agency in NEPA analysis is relevant to this appeal/protest, as the courts have consistently directly applied the NEPA regulations to EIS review. As a general review standard, Courts have applied an arbitrary and capricious standard of review for agency actions within their expertise under NEPA. This standard is reflected as follows:

“…it required only that the agency take a “hard look” at the environmental consequences before taking a major action. See, Kleppe v. Sierra Club, 427 U. S. 390,427 U. S. 410, n. 21 (1976). The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions, and that its decision is not arbitrary or capricious. See generally, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 401 U. S. 415-417 (1971).” 9

The CEQ regulations note that a detailed statement of high quality information is a significant tool to be relied upon in the public comment process required for all NEPA actions. These regulations clearly state this relationship as:

“NEPA procedures must ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” 10

TPA vigorously asserts that while the majority of the issues raised in this appeal are subject to the heightened scrutiny of a de Novo review, much of this analysis is so deficient as to fail to satisfy the hard look standard. The fact that the EA recognizes that there is no data regarding recreational visitation to the planning area directly undermines any assertion of a hard look at possible impacts and utilization of existing resources. TPA submits that a hard look at issues is more than recognizing a lack of data and making no effort to resolve the lack of information.

3a. The EA fails to review basic alternatives that achieve the purpose and need of the Proposal.

TPA must express significant concern that the Proposal determines that a detailed analysis “no action alternative” is not necessary. While the TPA agrees that the no action alternative of an EA may be somewhat more limited than an EIS, the TPA is simply unaware of any authority that provides for a basic failure to address current management under an EA. TPA vigorously asserts that undertaking a district level travel plan and only preparing an EA is highly unusual to start with. The determination to prepare an EA with numerous faults that are recognized during the original comment period but never resolved directly evidences the failure to comply with NEPA regulations. The overwhelming number of Ranger Districts doing similar projects chose to fully review all issues and prepare an EIS. TPA vigorously asserts that choosing only to prepare an EA has allowed alternatives to be overlooked and faulty analysis to be provided to the public as the review was only an EA.

TPA believes that a review of relevant standards for an EIS range of alternatives is highly relevant to the preparation of an EA as an EA is allowed to undertake a slightly lower level of analysis when compared to an EIS. At no point is there any authority that allows an EA to simply skip issues on the basis that the agency has not compiled the necessary information. As noted by numerous experts, the rational decision-making process of the National Environmental Policy Act (NEPA) is compromised when agencies consider only a limited range of alternatives to their proposed projects.11 When reviewing ranges of alternatives provided in a NEPA analysis, the courts have consistently held:

“The alternative section is ‘the heart of the environmental impact statement,’ 40 C.F.R. 1502.14; hence, ‘[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” 12

When determining if an EIS has provided a satisfactory range of alternatives, the standard of comparison is to the purpose of the rulemaking and EIS. The courts have consistently held:

“[E]nsure that federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences, and [to] provide the public with information on the environmental impact of a proposed action and encourage public participation in the development of that information.” 13

While an EA has a slightly reduced mandatory level of analysis when compared to an EIS, at no point in NEPA is there any authority that allows planners to recognize faults in analysis and move on. When the CEQ regulations and relevant federal laws for preparation of an EA are consolidated to a single standard, the conflict of the limited scope of the Proposal is immediately apparent. The combined single standard would be as follows:

Environmental assessment: …. (b) Shall include brief discussions of the need for the proposal and study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.

As previously noted, a no action alternative must be provided when there is “unresolved conflicts concerning alternative uses of available resources.”14 NEPA also finds that a full range of alternatives must be provided when there is conflict regarding the usage of existing resources. TPA submits that there can be no factual argument that the existing road and trail network is an existing resource and there is conflict over the future of these resources and as more extensively discussed in subsequent portions of this document, there are numerous alternatives for developing an MVUM that are available that are simply never mentioned and certainly not analyzed.

3b. Alternatives to the Proposal are clearly available that simply have never been addressed.

TPA must vigorously object to the artificially limited scope of the Proposal in terms of alternatives that have been provided to the public for at best weak comparisons of impacts. Two alternatives are frequently utilized by the USFS to achieve the objective of creating an MVUM but for reasons that are not clear simply The limited range of alternatives and failure to address the no action alternative was the basis of a large number of public comments during the comment period. Many USFS Ranger Districts have simply moved all existing routes onto the MVUM in order to comply with the travel management rule, and then moved to a designated routes system on the district MVUM after sufficient information has been collected to allow for a full and complete review of impacts from any closures. TPA submits that this process is so common that a citation to a particular plan is totally unnecessary. Clearly this represents an alternative to the Proposal which was not explored as the no action alternative simply is never meaningfully developed in the Proposal.

TPA submits that the recently finalized Mount Taylor Ranger District Travel Plan provides an example of another alternative for developing a travel management plan for the ranger district. The Mount Taylor District chose embrace the recreational usage of the district and to make large scale movements of existing roads to a variety of width of trails in order to maintain access. This decision is HIGHLY relevant to the Magdalena RD process given the geographic proximity of the two districts and the similarity in the timing of these processes. TPA also submits that the viability of this proposal as an alternative to the proposal is directly evidenced by the fact that the purpose and need of each of these plans is functionally identical. The purpose and need of the travel management plan on Mount Taylor Ranger District is as follows:

“Purpose and Need – There is a need to comply with 36 CFR 212.51(a), which requires the forest to designate motor vehicle use on National Forest System roads, trails, and areas by vehicle class, and if appropriate, by time of year. There is also a need to comply with the Travel Management Rule, 36 CFR 261.13, which requires that forests prohibit motor vehicle use off the system of designated roads, trails, and areas, and motor vehicle use that is not in accordance with the designations.” 15

The purpose and need of the Magdalena RD travel plan is as follows:

“Purpose of and Need for Action – There is a need for improving the management of motorized vehicle use on National Forest System lands within the Magdalena Ranger District of the Cibola National Forest and National Grasslands in accordance with the provisions of the Travel Management Rule at 36 CFR parts 212, 251, and 261. The Travel Management Rule requires the district to provide for a system of NFS roads, NFS trails, and areas on NFS lands designated for motor vehicle use. There is a need to comply with the Travel Management Rule, 36 CFR 261.13, which prohibits motor vehicle use off the designated roads, trails, and outside designated areas. There is a need to amend the Forest Plan to be compliant with the Travel Management Rule (see Appendix A).” 16

TPA submits that the purpose and need of these two planning processes is functionally identical and as a result of the geographic proximity and similarity of timing of these processes the Mount Taylor proposal clearly represents an alternative for management of the Magdalena RD routes that was simply never addressed for reasons that are not clear. TPA submits that any assertion to the contrary would lack factual and legal basis and that there are clearly two alternatives available to the Magdalena RD to develop an MVUM without the proposed closures. At no point is there any analysis of why these alternatives were found to be unacceptable.

3c. The failure to accurately address economics in the planning process will lead to significant management issues with the implementation of the Proposal.

The failure to address the no action alternative and a full range of alternatives compounds facial failures in economic analysis of the Proposal. Concerns regarding the critical role that economic analysis plays in NEPA have been raised by a wide range of highly credible third parties and were again the basis of extensive concern in the public comment process. Rather than address the critical nature that tourism and recreation play to the New Mexico economy, the Proposal provides following information on impacts to recreational usage that might result from the Proposal:

“Insufficient information exists to accurately estimate changes in recreation use that would occur under implementation of the action alternatives analyzed in this report.” 17

TPA is completely unable to identify any statutory basis or case law that allows NEPA to proceed at the Ranger District level and simply state there is a lack of information and move on. All case law and regulations require all impacts to the human environment to be meaningfully analyzed, not just those where information is easily available. Understanding the recreational visitation to the planning area is a critical component to developing a full and accurate review of the economic impacts to local communities that would result from the Proposal. It is beyond argument that recreational tourism has consistently identified as a critical component to these communities basic existence.

TPA is very concerned that the faulty economic analysis prepared in the Proposal have led to an allocation of resources in a manner that simply does not reflect user demands and will rapidly become unsustainable when the Proposal is implemented. TPA is not alone in their concerns regarding impacts of management decisions based on inaccurate economic analysis. The Western Governors’ Association released its Get Out West report in conjunction with its economic impact study of recreation on public lands in the Western United States which specifically identified that proper valuation is a significant management concern as follows:

“Several managers stated that one of the biggest challenges they face is “the undervaluation of outdoor recreation” relative to other land uses.” 18

The Get Out West report from the Western Governors’ Association also highlighted how critical proper valuation of recreation is to the development of good management plans based on multiple use principals. The Get Out West report specifically found:

“Good planning not only results in better recreation opportunities, it also helps address and avoid major management challenges – such as limited funding, changing recreation types, user conflicts, and degradation of the assets. Managers with the most successfully managed recreation assets emphasized that they planned early and often. They assessed their opportunities and constraints, prioritized their assets, and defined visions.” 19

TPA concerns regarding the Proposal and those expressed in the Western Governor’s Get Out West report virtually mirror each other. This concern must be addressed in order to avoid increases to many other management issues that were sought to be minimized with the creation of the Proposal. There can simply be no factual argument made that recreation has not been significantly undervalued as directly evidenced by the fact that no user or visitation information was obtained as part of the creation of the Proposal and that the only other usage of the planning area is firewood gathering.

4a. There is a wide range of credible research from the USFS that generally identifies a dispersed trail network as vital to small communities.

TPA is deeply concerned with the lack of consistency of the Proposal both in terms of recreational analysis and understanding the wide range of recreational activity that is dependent on the roads and trails for access with research that has been performed by other Federal agencies, State agencies and user groups regarding the specific levels of recreational spending and employment in the New Mexico area. TPA must note that the only other activity that is identified as possibly being impacted by the Proposal is firewood gathering. This position simply makes no sense as firewood gathering is identified as the 14th highest level of activity for the Cibola NF by the USFS. Many of the other more important usages of the existing road and trail network are simply never addressed as possible impacts from implementing the Proposal.

TPA is also deeply concerned that the limitations on access provided in all alternatives of the Proposal are inconsistent with more general statements regarding the economic importance of recreational access to rural communities from many of these same agencies and partners. TPA does not contest that site specific information may not be available for the planning area but TPA vigorously asserts there is a wide range of information on the issue available, none of which supports the basic direction of the Proposal. TPA believes that the fact that the Proposal is directly conflicting with information from these sources is an entirely different issue for NEPA analysis than asserting there is a complete lack of information.

The Forest Service has clearly identified the economic benefits that can accrue to a local community as the result of a multiple use trail network as follows:

“RECREATION AND TOURISM ARE VITAL TO MOST RURAL COMMUNITIES: This is true for virtually all rural communities but especially important to counties with high percentages of public land. Actions by public agencies to reduce or limit access to recreation on public lands have a direct impact on the local economy. Limiting access by closing roads, campgrounds, RV parking, and trails impact the surrounding communities. Visitors to public lands utilize nearby communities for food, lodging and support facilities. Interests include hiking, photography, horseback riding, biking, climbing, backpacking, birding, hunting, sport fishing, and many more. Public land agencies’ communication with community businesses is essential to job creation and stable rural communities.” 20

The Proposal also conflicts with a wide range of local planning efforts, such as the Catron County strategic plan which identifies the following as a management priority:

“a. Purpose The primary purpose of this Comprehensive Plan is to: • Maintain existing economic structures of mining, timber, ranching, and recreation while seeking new opportunities that are not in conflict with the existing economic structure.” 21

Clearly the basic direction of the Proposal and the fact that no change is noted in the economic contributions from recreation on the planning area despite loss of almost 40% of the access to the area conflicts with these statements from Catron County and the USFS. In addition to conflicting with landscape level analysis from the USFS regarding multiple use access to public lands, the Proposal conflicts with management priorities that are identified in numerous local planning documents.

4b. More specific analysis from the USFS identifies the huge role of recreational activity to the Cibola NF and the critical role understanding this usage plays in economic analysis.

Throughout the Proposal, isolated references are made varying types of usages existing on the Ranger District. TPA submits that these statements directly evidence the lack of factual basis relied on in the development of the Proposal and that insufficient information was available to address alternatives available and possible impacts from each alternative. The Proposal provides the following summary of overall uses in its recreation and scenic resources report:

“Recreation use on the Magdalena Ranger District is growing, partly because of the overflow of recreationists from the Albuquerque metropolitan area. Recreation use on the Magdalena Ranger District is primarily overnight use with the main users being hunters, campers, backpackers and rock climbers. The Day Use activities on the District include hunting, biking, pleasure driving, horseback riding, gathering forest products, rock climbing, and short day hikes. Hunting is a popular recreation activity throughout the district.”22

TPA is concerned that no basis is provided for this breakdown of usages and that at best only a limited attempt is made to reconcile impacts to these activities with the proposed changes in management. The basis for these assertions entirely lacks consistency with positions taken at other times that insufficient information is available to allow for meaningful economic analysis of the Proposal. This type of conflict in a detailed statement of high quality information is a direct violation of NEPA.

TPA would note that many of the activities identified in the Proposal as alternative uses of these areas are identified as some of the smallest primary uses of the planning area in relevant USFS NVUM research for the Cibola NF. TPA asserts that the large scale conflict between NVUM research and the limited and often conflicting information in the Proposal directly indicates the hard look of NEPA has not been complied with. The USFS NVUM research for the Cibola NF indicates recreational visitation as follows:

Table 13 Activity Participation

23

The complete lack of factual basis in the assertion of only two jobs being related to motorized usage of the planning area is further brought into question when the activities on the Cibola are reviewed. TPA does not contest that hiking ranks highly on the NVUM analysis, TPA is aware that motorized access is a huge factor in how the public utilizes hiking opportunities. While driving for please is 5th on that list, the motor vehicle is a primary method the public uses to view natural features and wildlife, hike, relax from daily stress and access their favorite hiking trailhead on the planning area. Each of these activities is a top five usage on the Cibola NF and the Proposal identifies that visitation to the planning area is primarily from the Albuquerque area. Clearly people are not walking from Albuquerque area to access these opportunities. The fact that every activity is directly related to motorized access and the Proposal asserts that only 2 jobs are related to this access is the type of conflict that directly evidences something other than the hard look of NEPA being relied on.

In addition to the above general summary of activities occurring on the Cibola, the NVUM research specifically identifies the primary facilities and developed sites that are used by the public when they are visiting the Cibola NF. This information is provided as follows:

Table 14 Percent of National Forest Visits Indicating Use of Special Facilities or Areas
24

Again these usage profiles do not support the position that only 2 jobs are related motorized access as the top 5 sites being visited are directly related to motorized usage.

As part of the NVUM process, the USFS has also developed specific spending profiles for a wide range of recreational activities. This research provides the following information for planners to rely on in the development of local travel plans:

Visitor spending
25

TPA submits that nationally the USFS recognizes a range of spending for an individual user on recreational activities from $20 per day to more than $1,000 per day. This wide range of spending should create a basic relationship between certain users and spending and that accurately measuring recreational visitation to a planning area is a critical component of developing meaningful economic analysis of any planning effort. A small change in a high spending user group would be difficult to offset with replaced visitation by users on the lower end of the spending spectrum. TPA submits that the economic impacts of the wide diversity in recreational spending is simply never addressed in the Proposal, which notes:

“Insufficient information exists to accurately estimate changes in recreation use that would occur under implementation of the action alternatives analyzed in this report.”26

The Proposal asserts that the following summary accurately reflects economic contributions of recreation as follows:

“Alternative 1. Proposed Action Employment and Income: Approximately 55 jobs and $1,454,773 in labor are supported by recreation. Two of these jobs and $37,015 in labor income are due to motorized uses.” 27

How these conclusions regarding recreational spending and possible impacts from the range of alternatives are reached in light of the admitted insufficiency of information is never explained in the EA. This is simply a violation of NEPA and leads to more questions on economic impacts from recreation than it ever could resolve. These questions include that any assertion that only two jobs in the Proposal area are related to motorized usage completely lacks factual basis as each of the top 5 usages of developed facilities is related to motorized access to the area. Any proposition that access a visitor center or interpretive site is only achieved via foot access simply lacks factual or logical basis, especially given the remote nature of the planning area and large visitation from the Albuquerque area. Motorized access is a critical component of these experiences. TPA is vigorously opposed to the fact that the estimate of economic impacts simply never changes for any of the alternatives and that based on these levels of spending in the EA, it is functionally impossible to achieve spending levels anywhere near 6 billion dollars spent on recreation and tourism at the state level that has been identified by a wide range of highly credible sources.

Predominately, the only secondary usage consistently identified in the EA as possibly being negatively impacted by the preferred alternative of Proposal is firewood gathering. On a 1.6 million acre forest this simply lacks any factual basis and directly conflicts with the visitor data that is available in the USFS National Visitor Use Monitoring research for the Cibola NF. Firewood gathering is 16th on list. In addition to the lack of credibility in such a position, this position directly contradicts the usages found by the USFS as part of their NVUM process. Given the facial conflict between these analysis, TPA must question the basic accuracy of any economic impacts from even the limited number of alternatives that are provided. TPA further submits that this conflict explains why there was no attempt made to summarize the no action alternative. The necessary information simply was never obtained, forcing TPA to question the decision to move forward with the Proposal without addressing this foundational issue. Such a decision is arbitrary and capricious and fails to meet NEPA requirements regarding accurate economic analysis.

4c. The New Mexico SCORP identifies the huge economic contributions to the state from recreation and the critical role that roads and trails play in delivering this experience.

While the Proposal failed to develop a meaningful baseline for economic analysis of impacts from management changes in the alternatives, TPA believes that establishing an accurate baseline for comparison of outside analysis to the Proposal is critical both to developing a quality plan and satisfying the hard look of NEPA. This type of landscape comparison also provides a meaningful reality check on the conclusions that are reached in local planning efforts. When expanded to the state level, local economic contributions should roughly correlate to state level conclusions. TPA submits that this correlation cannot be made when economic analysis in the Proposal is compared to state level analysis.

In addition to failing to provide any analysis of possible recreational impacts both in terms of quality of recreational opportunities and economic impacts to local communities, the only other usage identified as possibly impacted is firewood gathering. This simply makes no sense and again fails to address the fact that a multiple use route network is a huge component of providing a high quality recreational activities to almost every user of public lands in the Country. People simply are not hiking to the Magdalena RD in order to hike on the District.

The Outdoor Industry Association and Western Governors Association have combined to publish an extensive review the economic importance of recreation on public lands throughout the Western Unites States. This research concluded that outdoor recreation in New Mexico is a $6.1 Billion Dollar a year industry and results in 68,000 jobs in the State 28. Tourism has been identified as the largest or second largest economic driver in the State of New Mexico for literally decades. 27.3% of NM residents directly participate in OHV related activities.29 Third party research directly states that the dispersed road and trail network provides access for a wide range of activities.

The State of New Mexico has an extensive Statewide Comprehensive Outdoor Recreation Plan (“SCORP”) as required by the Land and Water Conservation Fund program. This document provides a wide range of information on the importance of recreation to the state’s economy and the critical role that trails provides in this experience. The SCORP clearly states the economic contributions of what has always been a critical component of the New Mexico economy as follows:

Economic Impact of State Parks and Outdoor Recreation

  • Visitors to the New Mexico State Parks have been steadily increasing since 2005.
  • Forty percent of New Mexico’s state residents participate in wildlife.associated recreation, both inside and outside New Mexico.
  • Outdoor recreation supports 47,000 jobs across New Mexico and generates:
  • $184 million in annual New Mexico state tax revenue.
  • $3.8 billion in annually to New Mexico’s economy.
  • $184 million in annual New Mexico state tax revenue.
  • The outdoor recreation industry:
  • Produces $2.75 billion annually in retail sales and services across New Mexico – accounting for 4.6% of gross state product.
  • Provides sustainable growth in rural communities.

Except for those with direct economic interests, people often fail to consider the importance that outdoor recreation holds for local economies. In parts of New Mexico, outdoor recreation and tourism have long played an important economic development role. Many of New Mexico’s smaller and more rural communities are “gateway communities” that are located near an access point to an outdoor recreation site such as the national forest, a reservoir, ski area or historic site and usually derive a good measure of their community income from supporting outdoor recreation activities through lodger’s taxes, gross receipts taxes, and employment in businesses that sell supplies or provide hospitality services.” 30

As directly evidenced by the scope of these comments, there is a wide range of highly credible economic information available that could have been relied on to analyze the impacts to recreational usage and general tourism that would have resulted from the range of alternatives in the Proposal. TPA agrees that there is insufficient information to support the Proposal, but that does not mean there is no information. As directly evidenced by this Protest, the information simply does not support the Proposal. It does not mean that this information may simply be overlooked.

The New Mexico Statewide Comprehensive Outdoor Recreation Plan further identifies that a lack of trails and low levels of trail maintenance and lack of associated facilities like bathrooms is a major concern for many residents in New Mexico. The SCORP clearly states:

Aspects of outdoor recreation Needing Improvement

TPA vigorously asserts that these findings are equally applicable throughout the state of New Mexico lands and would submit that there is no criteria identified in the SCORP that supports the basic direction and intent of the Proposal. Again, TPA would submit that the fact that research does not support the Proposal is very different than the complete lack of research that is asserted to exist in the Proposal. The conflict of the Proposal and existing research directly evidences the arbitrary and capricious nature of the Proposal and its failure to comply with NEPA requirements regarding both the range of alternatives and basic analysis of economic impacts that is required.

4c. The desirability of recreational hunting will significantly decline under the Proposal.

TPA has many members who are actively licensed hunters or fisherman and utilize a wide range of areas in these pursuits and fully utilize OHVs as part of their hunting experience, and often these visitors to the planning area are overlooked by groups allegedly advocating for hunting interests. Throughout the Proposal there are general allegations made that management changes are being undertaken to improve hunting opportunities in the Proposal areas. Recently, the National Shooting Sports Foundation in partnership with the USFWS and 20 different state wildlife agencies performed a national review of the issues that are impacting the hunting community and declining hunter participation rates in the US and what agencies can do to maintain hunter involvement in the wildlife management process. The NSSF research specifically concluded:

“Difficulty with access to lands for hunting has become not just a point of frustration, but a very real barrier to recruiting and retaining sportsmen. Indeed, access is the most important factor associated with hunting participation that is not a time-related or demographic factor—in other words, the most important factor over which agencies and organizations can have an important influence….” 31

The importance of hunting usage and access for funding of wildlife management activities, a significant issue that is directly related to hunting usage is overwhelming. This funding impact is summarized as follows:

“Hunters are avid conservationists who donate more money to wildlife conservation, per capita, than do non-hunters or the general population as a whole in the United States (Responsive Management/NSSF, 2008a). Hunting license fees and the excise taxes paid on sporting goods and ammunition fund state fish and wildlife agency activities and provide Federal Aid monies…. In fact, sportsmen, as a collective group, remain the single most important funding source for wildlife conservation efforts. Consequently, decreased interest and participation in hunting activities may have the unintended effect of reduced funding for important wildlife and habitat conservation efforts.” 32

The importance of motorized access to the retention of hunters is immediately evident when the means of access for hunting activity are identified.Hunters overwhelmingly use motorized tools for accessing hunting areas as cars and trucks are used by 70% of hunters, and ATVs are used by 16% of hunters. By comparison, only 50% of hunters identified walking as their access method of choice.33 The significance of closures on public lands is also specifically identified in this research, which identified that 56% of hunters specifically cited restrictions on motorized access and 54% identified closures of public lands by government agencies as significant issues for hunters.34

The funding streams secondarily impacted by hunters and suitability decisions are specifically of concern as hunting participation has been declining significantly over the recent few years and removing factors that were contributing to the declining participation was the basis of the entire NSSF report. This report specifically concluded that a lack of access to hunting opportunity was the largest addressable issue for land managers to address and improve hunter retention. Significant closures to multiple use routes in the Proposal area in the manner proposed will not improve access for hunters, and will over the long term reduce funding available for wildlife management. Reducing access to areas which are suitable for multiple use will only compound the changes and impacts to these secondary management issues. The conflict between this report and the EA basic direction are simply never addressed and again directly evidence the insufficiency of the EA in addressing both the range of alternatives and economic impacts of the proposal.

5b. Merit of a “close it and they will come” standard in economic analysis of recreational changes from Proposal.

Given the complete lack of analysis of visitation to the Proposal area or possible economic impacts from changes to the recreational opportunities on the Proposal area, TPA must address the possibility that closures to access were seen as an economic driver as part of the Proposal. This would be based on an assumption that there was a large number of users who were seeking a non-motorized experience with a high degree of solitude. It has not been TPA experience that closures result in increased visitation to areas, rather closures result in decreased visitation to areas even by groups that are seeking a dispersed recreational opportunity with a high degree of solitude.

For purposes of this document, this recreational experience will be referred to as wilderness, although TPA is aware there is only a small amount of Congressionally designated Wilderness in the Proposal area and those areas are outside the scope of the Proposal. While motorized recreation is the user group most directly impacted by a wilderness designation or management attempt, many other user groups such as the timber industry, hunters, fisherman and camping users are directly impacted as the most common means of accessing these areas for other forms of recreation are prohibited as well. Compounding the risks of negative economic impacts from the Proposal, Forest Service research indicates the total size of the wilderness hiker user group is rapidly getting smaller.35 This situation must be taken into account when addressing economic impacts of the Proposal, as the Forest Service has found:

“Trends in backcountry and wilderness use indicated rapid growth in the 1950’s and 1960’s, often exceeding 10 percent annual increases. Growth slowed in the late 1960’s and 1970’s to 3 to 5 percent average annual increases. Indeed, by 1976, overnight stays in national park wilderness and backcountry had peaked, and 1986 use was only 62 percent of that highest use year.” 36

In addition to the overall trend in usage declining, the Forest Service has found that other user groups which would be the target market for wilderness areas do not utilize the opportunities in wilderness type settings. Forest Service’s Rocky Mountain Research Station has found:

“Fishing (where possible), photography, nature study, and swimming (particularly in the Southeast and California) follow hiking as the most common activities in wilderness. Hunting is prevalent in some areas, but is always less than what might be expected. Even in such hunting hot spots as the Bob Marshall and the Great Bear wildernesses, just over 30 percent and 40 percent, respectively, of the sampled visitors hunted. Even in the fall hunting season, most visitors are not hunters.In a study of activity trends in the Bob Marshall Wilderness Complex, hiking, fishing, and photography remained important across 1970 and 1982 users (Lucas 1985). Of these, only fishing declined, and that only slightly. Hunting was the only activity with a substantial change, and it dropped sharply in percent of total visitation.” 37

The Research Station’s study also addressed recreational usage trends for wilderness and clearly concluded:

“First, the need for additional wilderness allocation on the basis of recreational use demand is dropping. Use has stabilized or dropped in recent years. Population demographics suggest that use may decline even further….. Second, the benefits of wilderness recreation use accrue primarily to individuals in the region immediately surrounding the wilderness, People do not travel far to wilderness.” 38

Given these trends in wilderness area usage, TPA must object to any attempts to classify a wilderness type management standard as an economic benefit. Targeting any forest management proposal at a user group that is rapidly diminishing in comparison to total user numbers and that does not utilize existing opportunities makes little sense and would be a policy destined to fail. Maintaining access for user group that spends, on average, twice as much as the user groups and is steady or growing as a segment makes sound economic sense. Attempting to create positive economic impacts with any other type of planning simply makes little sense and would not be a good utilization of resources.

7. Conclusion

TPA has participated in a huge number of Ranger District level travel management plans and is very concerned regarding the limited analysis provided in the Proposal’s EA. It has been TPA experience that an EIS is the standard level of analysis relied on for district level plans in order to insure a legally sufficient analysis of issues is provided on what is always a difficult and contentious issue for the USFS to address. This is again proven true on the Magdalena as the overwhelming basis for public comment on the draft was the closure of routes. While the vast amount of public comment was related to limiting closures of routes, the Proposal failed to address many basic flaws in the draft EA on the underlying research, such as failing to fully explore current management, failing to provide a full range of alternatives on contested issues and failing to meaningfully address economic impacts from the Proposal.

TPA submits that given this overwhelming public input seeking to maintain current levels of multiple use access to the area, which is consistent with credible input from a wide range of partners, there is clearly unresolved conflicts about alternative uses of available resources. This conflict mandates a full, complete and meaningful review of these issues as a matter of law under NEPA.

TPA submits that two alternatives are available that satisfy the purpose and need of the proposal and do not close 40% of the routes in the planning area. The first alternative that is available and never addressed is simply recognizing the existing routes in the area and placing them on an MVUM. As the purpose and need is clearly identified as the need for the Magdalena RD to comply with the Travel Management Rule, this alternative has frequently been used by the USFS to achieve this goal. TPA submits that many ranger districts facing budget issues frequently identify existing routes in the district on their MVUM and simply do not close any routes. This decision has been frequently litigated and the USFS has been highly successful in defending these decisions. The second alternative that was simply never addressed would be the determination that existing roads could be designated as trails and allowed to remain open for access to recreational opportunities, as the Mount Taylor Ranger District of the Cibola NF recently determined was a viable means to achieve the goals and objectives of the Proposal. TPA would note that the purpose and need of the Mount Taylor project and the Proposal are almost exactly the same, and as a result this management clearly represents an alternative that was not explored. TPA submits this comparison is highly relevant as the Mount Taylor Ranger District is immediately adjacent to the Magdalena District in the Cibola NF. Why the alteration of roads to the lower trail level of classification was not explored remains unresolved and entirely unclear in the final EA and related documents. TPA vigorously submits that the analysis provided to date artificially limits the scope of alternatives provided in violation of NEPA.

Agency determinations regarding the need for closures of approximately 40% of the routes in the planning area are never analyzed or reviewed and fall well outside alternatives which could fulfill the purpose and need of the project. TPA submits there are clearly two management options to comply with the TMR, additional analysis must be provided to address the need to close an additional 40% of routes in the planning area as is the preferred alternative of the Proposal. After an extensive review of the EA, this analysis simply cannot be located as no reasons for closures, such as resource impacts, Endangered Species concerns or limited USFS budgets are even mentioned.

TPA submits that development of all alternatives for usage of current resources simply has not occurred and has compounded failures to meaningfully address the economic impacts to local communities from the Proposal. Rather than meaningfully preparing an EA, the complete lack of information on economic impacts from altered recreational usage is noted and the EA simply moves forward. TPA submits this falls well short of the hard look at issues required by NEPA.

The only non-recreational economic activity that is identified in the Proposal as possibly being impacted by the Proposal is firewood gathering. This position simply lacks any factual basis as USFS documentation identifies that firewood gathering is 17th on the list of reasons people visit the planning area. TPA vigorously asserts that motorized access plays a critical role in the other 16 activities higher on the list of reasons people visit the area, and no reason is given for why possible impacts to these 16 other activities are not addressed.

Each of these issues is a per se violation of NEPA requirements and relevant court decisions and mandate the Proposal be overturned and returned to the district in order for an accurate economic analysis to be performed and all alternatives be meaningfully explored and those that are not pursued are clearly discussed with the public in any supplemental documentation that might be provided. Please feel free to contact Scott Jones at 518-281-5810 or by mail at 508 Ashford Drive, Longmont, CO 80504 for copies of any documentation that is relied on in this appeal or if you should wish to discuss any of the concerns raised further.

Respectfully Submitted,

Scott Jones, Esq.
TPA Authorized Representative

Don Riggle
Director of Operations
Trails Preservation Alliance

1 See, Pub. L. No. 111-5, § 3, 123 Stat. 115, 115-116 (2009).
2 See, 40 CFR 1508.9
3 See, 42 USC 4332 (2)(E)
4 See, City of New York v. DOT, 715 F.2d 732 (2d Cir. 1983) at pg 741
5 See, Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 F3d 437 at pg 442; 42 ERC 1594, 26 Envtl. L. Rep 21276.
6 See, Hughes River Supra note 2 at pg .
7 See, Hughes River, Supra note 2 at pg
8 See, Magdalena Travel Plan Socio-Economic Specialist Report (July 3, 2013) at pg 30.
9 See, Baltimore G& E Co v. NRDC; 462 US 87 (1983) at pg 98.
10 See, 40 CFR 1500.1(b)
11 See, Allen et al; Does not provide a range of alternatives to satisfy NEPA…..NEPA Alternatives Analysis: The Evolving Exclusion of Remote and Speculative Alternatives; 2005 25 J. Land Resources & Envtl. L. 287.
12 See, Citizens for a Better Henderson v. Hodel, 768 F. 2d 1051, 1057 (9th Cir. 1985).
13 See, Kunzman, 817 F. 2d at 492; see also Citizens for a Better Henderson, 768 F. 2d at 1056.
14 See, 40 CFR §1508.9 and 42 USC §4332(2)(E).
15 See, USFS- Mount Taylor Ranger District of the Cibola NF- August 2010 at pg 5.
16 See, USFS Magdalena RD travel Plan at pg 5.
17 See, Magdalena Travel Plan Socio-Economic Specialist Report (July 3, 2013) at pg 30.
18 See, Western Governors Association; Get Out West Report; Managing the Regions Recreational Assets; June 2012 at pg 3. Hereinafter referred to as the “Get Out West” report.
19 See, Get Out West Report at pg 5.
20 See, USDA Forest Service – Office of Rural Development; Dr. Glenda Humiston; Jobs, Economic Development and Sustainable Communities Strategizing Policy Needs and Program Delivery for Rural California; Feb 2010 at pg 48
21 pg 1.
22 See, USFS Magdalena Ranger District – Recreation and Scenic Resource Specialist Report – Magadalena Ranger District Travel Management Project; at pg 1.
23 See, USFS National Visitor Use Data: Round 2 report for the Ciobla National Forest at pg 21.
24 See, NVUM report pg 22
25 See; White and Stynes; Updated Spending Profiles for National Forest Recreation Visitors by Activity; Nov 2010 at pg 6.
26 See, Magdalena Travel Plan Socio-Economic Specialist Report (July 3, 2013) at pg 30.
27 See, Magdalena Travel Plan Socio-Economic Specialist Report (July 3, 2013) pg 12.
28 See, Outdoor Industry Association, The Outdoor Recreation Economy; New Mexico Report 2012 – full copy of this report is available here. https://outdoorindustry.org/images/ore_reports/NM-newmexico-outdoorrecreationeconomy-oia.pdf
29 See, USFS ; Off-Highway Vehicle Recreation in the United States and its Regions and States: An Update National Report from the National Survey on Recreation and the Environment (NSRE) This is a RECSTATS Research Report in the IRIS Series1 February, 2008 at pg 22.
30 See, New Mexico SCORP 2010-2014 at pg 23.
31 See, National Shooting Sports Foundation; 2011; Issues relate to hunting access in the United States: Final Report; Accessed December 4, 2013; http://www.nssf.org/PDF/research/HuntingAccessReport2011.pdf at pg 7. (hereinafter referred to as “NSSF report”)
32 See, NSSF Report at pg 3-4.
33 See, NSSF report at pg 56.
34 See, NSSF report at pg 113.
35 See, Roggenbuck and Watson; Wilderness Recreation Use; The Current Situation; INT 4901 #191.
36 Roggenbuck and Watson; at pg 347.
37 Roggenbuck and Watson; at pg 353.
38 Roggenbuck and Watson; at pg 354.

Continue Reading

Rico West Dolores Decision

pdficon_large.gif

RECREATION VICTORY – RICO WEST DOLORES LAWSUIT DISMISSED
DENVER, CO – A lawsuit challenging motorized access to 14 key motorcycle trails in the Rico West Dolores area appears to have been finally and decisively rejected. A May 27 order by Tenth Circuit Judge Neil Gorsuch directed the district court to dismiss the case for lack of jurisdiction, ending over three years of litigation. The Rico West Dolores area includes epic outdoor recreation opportunities ranging from desert to high alpine sites managed by the San Juan National Forest. There are abundant and extensive Wilderness and other areas closed to motorized use within the Forest. “We are relieved and satisfied to see this decision,” observed Gary Wilkinson, President of the San Juan Trail Riders, a recreation advocacy group that opposed the lawsuit.

The suit was filed in early 2012 by the Colorado Chapter of the Backcountry Hunters and Anglers (CBHA), with support of Dunton Hot Springs, Inc., the Rico Alpine Society, and San Juan Citizens Alliance. The Circuit Court found that CBHA lacked standing to even bring the suit. CBHA’s complaint challenged a 2010 Closure Order which eliminated cross-country vehicle travel, and the Court stated that a decision striking down that order would reinstate an earlier management scheme which would have allowed much more motorized access. The Court determined that “a victory for [CBHA] in this case would seem to do nothing to help – and perhaps much to hurt – its cause. And by anyone’s reckoning that’s a problem, because to show standing to sue in federal court you have to show that it’s ‘likely, as opposed to merely speculative’ that you’ve suffered an injury that can be ‘redressed by a favorable decision.’” Order at 3 (citing cases). The district court also ruled emphatically against CBHA, but the Circuit Court vacated that decision, reasoning that CBHA should not have been allowed out of the jurisdictional starting gate.

“We have defended and will continue to defend the remaining motorized access routes in the Rico area,” explained Wilkinson. “These routes have been used for decades. They are regularly maintained and environmentally sustainable. We hope this outcome will instill caution in those who have been too quick to adopt the claims of CBHA and its allies,” Wilkinson concluded.

The recreation groups defending the suit alongside the Forest Service include the Colorado Off-Highway Vehicle Coalition, Trails Preservation Alliance, San Juan Trail Riders, Public Access Preservation Association and BlueRibbon Coalition. They were represented by Paul Turcke of Boise, Idaho.

# # #

San Juan Trail Riders is nonprofit organization based in Durango with about 400 members, which promotes active participation in trail management, educates land managers and trail users about conservation practices and other trail issues, and encourages cooperation between users and organizations. www.sanjuantrailriders.org

Continue Reading

Daily Sentinal article about travel plan

GOP urges governor to go slow on travel plan
Closure of roads, trails could be ‘devastating,’ elected officials say

The Daily Sentinel
Article by Gary Harmon

Link: www.gjsentinel.com

From James B. Solomon, President MTRA,
COHVCO North West Colorado Area Representative:

“Front page headlines in the Daily Sentinel regarding the BLM PRNP/TMP issues we face in the GV. I think we made an impression on the local, State & Federal representative regarding our concerns about how our public lands are managed for multi-use. I think we need to thank all of our elected officials for their willingness to address this concern in a manner that may bring about some change in the land management thinking.”

Continue Reading

Letter to USFS from TTR INC – Buffalo Pass

pdficon_large.gif
May 17, 2015

TIMBERLINE TRAILRIDERS, INC.
P.O BOX 771794 STEAMBOAT SPRINGS CO 80477
timberlinetrailriders@gmail.com

United States Forest Service
Attention: Charles Sharp, NEPA Planner
100 Main Street, PO Box 158
Walden CO 80480
Sent via email: USFS

Re: Buffalo Pass Trails Project

Dear Mr. Sharp:

These comments are submitted by Timberline Trailriders, Inc. (“TTR”). TTR is not for profit corporation comprised of over 100 families who are off road motorcycle enthusiasts. We have a long history putting on motorcycle competitions, including the Timberline Enduro which was held on Routt National Forest lands for nearly 25 years. More recently, we have successfully partnered with the Hahn’s Peak District in obtaining trail improvement grants for the last eighteen years and have secured funding for the Routt NF OHV Trail Crew the last fifteen years.

Our comments on the Buffalo Pass Trail Project are as follows:

  • At the outset we pleased that the Forest Service, after over thirty years of stagnation, is at last considering the possibility of new single track trails, close to town no less. We support new single track trails on the Forest provided they are true multiple use trails, open to hikers, horses, bicycles and off road motorcycles. Back country single track trails are not expensive to install or maintain, provide quality re.creation for a multitude of users and impose minimally on the ecosystem/environment.
  • We request that all new trails on Buffalo Pass be open to motorized use. For trails that cannot be opened to motorized use at the present time due to the Forest Plan prescriptions, we would request that the decision allow the trails to be open to motorized use should the Forest Plan designation be changed to allow such use. We hate to get into a chicken and egg situation where we’re turned down now because of the Forest Plan and turned down on a Forest Plan amendment because the Project decision did not allow motorized use. Please have the plan accommodate possible changes in the Forest Plan designations.
  • Bicycles have a great amount of trail opportunities close to town on Emerald Mountain· and on the Ski Area, both areas being closed to motorized use. There seems to be no justifiable reason to create another exclusive area primarily for bicycles only. Forest Service trails should be open to all appropriate uses except in those few situations when there is clear and convincing justification for less than all. The preferred proposal here is severely biased against motorized use, with 4 miles to motorized use and 40 miles to non-motorized. This seems to indicate that the primary users are bicycles and the motorized users are lucky to have a little bit of the fun. And if we start on roughly 10% of new trail system being motor friendly, we presume the bike folks will come to expect that as the norm, not the exception. We believe that the starting point should always be 100% multiple use and having a reduction in motorized trails only for good solid planning reasons. We see no good reason to arbitrarily close 90% of the new trails to motorized use.
  • If all the trails were truly multiple use and open to motorcycles, enforcement issues would be far fewer as all trails would have the same restrictions so users wouldn’t have to worry about which trail is open to their use. With only some open to motorized use, signage and users following signage becomes
    critical. Errant rides would encourage conflict with other users who think their area was free of other uses. It would be much easier and more efficient to put up a nice kiosk/sign at Dry Lake explaining that the Buffalo Pass trail system is multiple use and expect to encounter other user groups on the trails. If you don’t want to encounter motorcycles go to the Emerald Mountain bicycle park. If you don’t want to see dogs, horses and hikers, go to the ski area.
  • Providing more multiple use trail will reduce motorcycle density and reduce “user” conflict. And more trail will spread out and minimize trail wear and tear. We’re very concerned that a 4 mile section of trail will unreasonably concentrate all motorized users on one short trail. And they have to use the same trail coming down as going up.
  • If all the Buffalo trails were motorized, how simple it would be for the OHV Trail Crew to maintain them for a couple of days and be done. Or if a batch of trees blew down they could rapidly deal with the problem on a as-needed basis. As proposed, you will have the motorized crew doing one trail and a non-motorized crew doing other trails – if there is such a thing. Certainly not very efficient and it would be a poor use of our OHV Trail Crew.
  • No mention is made as how the new trails will be improved or maintained. It is our understanding that there is no formal system in place under the bicycle umbrella that can reasonably guarantee future maintenance. Future maintenance can only be guaranteed if the trails are open to motorized use and then the maintenance can be handled by OHV Trail Crew – as has been done on motorized trails in the District for the last 15 years.
  • TTR proposed or requested an off road route to allow motorcycles to avoid the Buffalo Pass Road way back in 1993. We feel the heavy car traffic on the road does not provide a safe and entertaining experience for motorcyclists. One or more off road trails would provide a great option and avoid the dangers of sharing a dusty road with cars.
  • For some motorcyclists, off road trail options up to the top of Buffalo Pass would be.only the beginning of dual sport ride. One could connect to the Grizzly Helena going north or 1101 going south. Having multiple trails to the top would create more interesting trips by a long shot.
  • We tend to think the majority of the motorized users would be locals looking for a trail riding experience closer to town. Currently, the closest motorized single track trail opportunity is north of Steamboat Lake, over 30 miles away from Steamboat. Four miles of new motorized trail does not come close to addressing the demand for motorized single track trails close to town. Motorized use has
    long been recognized as a legitimate use of Forest Service lands. This plan must be modified to include much greater opportunities for motorized users.
  • If motorized use of a small segment trail is blocked by the wrong Forest Plan prescription, consider re-routing the trail out of that zone and into motorcycle friendly areas. In other words, don’t let a quarter mile section kill possible motorcycle use of a 10-15 mile trail.
  • A 40 mile trail system on Buffalo Pass would not in itself become a motorcycle destination so we don’t think designating all new trails as open to motorcycles would bring in a large number of out of town users. It might be a nice new diversion to visitors seeking a half day ride before heading home, etc. More like the Slickrock trail system in Moab. The largest user group would be locals looking for a fun half day or couple of hours.
  • Opening only a single trail would mean motorcycle users would be likely to ride the trail up and then, having nowhere to go, turn around and ride it back down. The hikers or horses they passed on the way up would have to be passed again. Their 8 miles of trail riding would be beating up the same 4 mile trail.
  • As we’ve earlier proposed, one trail option not present on the Project materials would b to use the old power line roads to provide motorized access to the top of Buffalo near the 1101 parking lot. This should be incorporated into the final plan. A bridge or low water crossing will probably be required and TTR will gladly assist in that endeavor.
  • A short 4 mile trail is poor planning. A minimum plan should provide a motorized loop from the Dry Lake area to the top Buffalo Pass. This could be incorporated into more loop opportunities using the existing 1101 and new trail on the eastern slope (the Grizzly-Helena expansion that’s been discussed or a new trail from Percy Lake). Loop trails disburse users and provide a much more enjoyable experience for users.
  • We believe it would be better to start with greatest amount of new trails open to all users, including motorcycles. Then , down the road if problems develop, selective.closures or other remedies could be considered and implemented if conditions warrant. It’s always harder to open closed trails than to close open trails. One forest in Montana has an odd/even day system for motorcycle/bicycles. There are a lot of options to consider short of closure. But let’s start with the most open trails possible.
  • If you find it necessary to limit the newly designated trails that are open to motorcycles to a single trail, please consider making this trail closed to bicycles. Why are motorized trails always open to other users? If a bicycle only trail is justifiable, why isn’t a motorcycle only trail? Fair is fair.
  • With potentially high usage of the trails, we would recommend that all Buffalo Pass trails remain at the primitive end of the spectrum. More open trails will result in greater speeds for both bicycles going down and motorcycles going either direction – which sounds like a bad plan for all. And the more open the
    trail, the more inviting it looks to ATV’s and side by sides. And higher speeds for bicycles will create havoc for interactions with horses and hikers (who can’t hear them coming).
  • We agree that bicycles should have to stay on designated trails . Motorized use has been subject to this for many years and there doesn’t seem to be the outlaw trail problem that you’ve found with bicycles.

So, we ask that you maximize the number of new trail miles that are open to motorcycles. If there are good, well supported reasons, consider a small reduction or imposing creative ways to address the perceived problems short of closures. Chopping off 90% at the outset seems like the wrong first step. And if reductions are deemed to be warranted, leave the motorized users with a loop system at the minimum. While a single trail is better than we have now and would be certainly welcomed, we think good planning can provide for more.

 

Timberline Trailriders , Inc.
By: Robert H. Stickler, President

Continue Reading

Appeal of Grand Junction FRMP

pdficon_large.gif
May 8, 2015

Director(210)
Att: Protest Coordinator
20M Street SE, Room 2134LM Washington, DC 20003

Re: Appeal of Grand Junction FRMP

Dear Sirs,

Please accept this correspondence and attachments as the appeal and objections of the above Organizations with regard to the BLM Grand Junction Final Environmental Impact Statement (“FEIS”) and Resource Management Plan (“RMP”). For purposes of this appeal/protest these documents will be collectively referred to as “the Proposal” . It is the Organizations position that the analysis of cultural resource management is insufficient, is arbitrary and capricious as a matter of law and fails to provide the hard look at issues mandated by NEPA. Additionally the proposed management of cultural resources fails to properly balance multiple use management standards with the protection of cultural resources, as the RMP seeks to manage possible cultural sites as a trustee would manage a trust rather than as a balanced multiple use of public lands.

Prior to addressing the appeal/protest of the Proposal, we believe a brief summary of each Organization is needed. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization the 150,000 registered 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 Trail Preservation Alliance (“TPA”) is a 100 percent volunteer organization whose intention is to be a viable partner, 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 of the sport and takes the necessary action to insure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands.

Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA advocates for the 30,000 registered snowmobiles in the State of Colorado. CSA has become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling by working with Federal and state land management agencies and local, state and federal legislators. For purposes of this document, CSA, COHVCO and TPA are identified as “the Organizations”.

The Organizations comments on the draft RMP are submitted with this appeal/protest as an attachment.

1. Executive Summary.

The Grand Junction RMP proposes to close 1,894 possible cultural sites, 612 miles of existing routes and 53,500 acres to all surface disturbing activity for protection of possible cultural resources sites. This is expansion in management by a factor of 236 from the 8 sites currently managed and an expansion of 5x the number of acres to be closed. Route closures due to cultural resource concerns are second only to Endangered Species issues, which are closing 672 miles of routes. The relationship of ESA issues are significant as ESA is the only factor that is addressed outside the multiple use management process.

The Organizations submit that the sheer scale and impact of these management changes simply has not been analyzed in a manner that could be sufficient to satisfy NEPA. This level of expanded management directly conflicts with current management of sites, which only identifies 3 of the 1,894 sites as being on the National Register and manages 8 sites currently. By comparison there are only 50 sites in Mesa and Garfield Counties on the National Register, 1,492 sites in the entire state of Colorado and that the District of Columbia only has 597 sites. The Organizations submit that these levels of expansion of any management issue would warrant a rather detailed discussion of the necessity of such management and especially how the expansion was justified under multiple use mandates. This simply has not been provided.

Additionally, of the 1,894 sites identified only 7 were released from further management meaning that 99.3% of the sites identified were found suitable for management. The Organizations believe such a high acceptance rate for any activity in multiple use planning is an indication that the required balance of multiple use was badly out of balance. The reasoning for

exclusion of these sites from further management also indicates an imbalance of multiple usage as the sites excluded from management were either sold by the BLM or destroyed by fire making further management impossible. The Organizations submit there is a significant difference between a site being “impossible to manage” and being “suitable to manage” and this distinction is simply never raised in the FRMP.

The Organizations are concerned about the imbalance of usage resulting from cultural resource management standards as these impacts are not remote or abstract and run well beyond the mileage of routes proposed to be closed. Each of the 1,894 sites identified in the GJFO RMP is subjected to a mandatory closure to surface disturbing activities of at least 100 meters and possibly 200 meters around the site to all surface disturbing activities including trails and recreational usage, oil and gas, grazing and many other uses. While defining surface disturbing activity would be a critical step in balancing usages, the RMP simply fails to define this term. This begs the question of how was the required hard look at balancing usages in any area undertaken when the usages to be prohibited is simply never defined. The Organizations further submit that implementation of this standard will directly conflict with a wide range of federal laws and other agency planning efforts.

The Organizations submit that a proper balancing of multiple usages with cultural resource protection is impossible with the current inventory and management. The exceptionally limited information in the cultural site inventory provided in appendix I clearly finds that 27% of the sites identified either need data or further assessment. The Organizations submit this void of data is direct evidence that cultural resource were arbitrarily given a priority position in balancing multiple uses, as the Organizations are unsure how this balance could be made when land managers are not aware of what is at the site or the true size of the site. The Grand Junction RMP simply fails to address the basis for management of 27% of the cultural sites to be closed and how the balancing of multiple uses has occurred in the decision making process. The Organizations are aware that while the specific locations of cultural resources sites are confidential, this confidentiality of sites is not a waiver of NEPA analysis.

The Organizations submit that the limited information inventory of cultural sites further provides that 51% of the 1,894 sites identified are “not eligible” for protection on the National Register. Again the Organizations must question how multiple uses are balanced with these sites as there is no distinction in the management standards being applied between sites that might be eligible and those areas that are not eligible for listing. It is the Organizations position that eligibility has to play a large factor in balancing multiple uses and the management closures that are related to each site. The Organizations are also concerned that the lack of data and ineligibility of a site does not appear to have impacted the allocation of sites to a particular usage category. These classifications are simply scattered throughout the usage categories.

The Organizations submit that if the required balancing of multiple uses had occurred, the fact that 78% of the sites proposed to be mandatorily closed were either lacking data or wholly ineligible for listing on the national register would have weighed against mandatory closures for these sites. The Organizations further submit that the fact the 7 sites discharged from further management were either destroyed or sold directly evidences the failure to balance multiple uses. The Organizations submit that the fact that any usage obtaining 99.3% of their issue in a multiple use management situation is an indication that the factor or issue was not balanced but rather was to be managed as trustee would manage a trust.

Even more serious concerns about the proper balancing of multiple usages in cultural sites result from changes in between the draft and final RMP, where recreational economic contributions in value and related jobs were expanded to almost 7 times original estimates. Many routes were reopened due to the heightened importance of recreation. While the economic contribution of recreational activity was expanded to 7 times original estimates, there was simply no change in any aspect of cultural resource management despite the fact that closures of 1,894 sites at least a football field in size to all usages could clearly have an impact on recreational access and the economic benefits that flow to local communities as a result. Again cultural management analysis remains completely unchanged between the draft and final RMP.

The Organizations submit that management of cultural sites as a trustee has also precluded viable management options for these areas such as moving to a designated trail system, which would provide a far more balanced usage of resources and protection of sites. The mandatory closing these sites would clearly impact routes that are critical to accessing other recreational opportunities that are totally unrelated to the cultural sites. The Organizations believe an economic analysis of the impacts to recreational access from these mandatory requirements would be highly site specific, as there are numerous geographic limitations in the GJFO which would severely impact access to significant portions of the field office. In numerous areas trails and routes are at the bottom of canyons and large washes due to steep and rugged terrain. The Organizations are forced to believe that many of the same geographic limitations currently in the field office forced herd animals and the Indians through the same canyon bottoms hundreds of years ago as are now being used for recreation. Expansion of recreational spending and jobs would clearly weigh against current closures in an area such as these types of bottlenecks as recreational values for the areas lost outside the bottleneck areas would be exponently higher.

The Organizations submit that the impacts of the failure to properly balance cultural resource management in the NEPA process is neither speculative or remote. Typically Endangered Species habitat issues are a primary basis for route closure as the ESA places the listed species at a higher priority than multiple use issues. Only 672 miles of routes were closed in the GJFO final RMP due to all endangered species issues. Our basis for concern on balancing of usage is 616 miles of routes were lost exclusively due to cultural resource management concerns again indicating there is an imbalance in this issue. The Organizations are further concerned regarding the long term impacts of these management standards as any site specific work in the future would be subjected to mandatory closures and probably result in additional lost routes and an impossibility to build new routes.

The Organizations vigorously assert that management standards for lynx habitat areas adopted by the GJFO directly conflict with the 2103 Conservation Assessment and Strategy and as a result are arbitrary and capricious. The 2013 LCAS specifically states that a multi-story actively managed forest is critical to the lynx survival and that snowmobile usage and snow compaction is a significantly decreased threat to the lynx and that currently levels of management are acceptable. The FRMP proposes to close the lynx analysis areas to all timber harvest and close these areas to snowmobile usage despite the fact these areas have been open to snowmobile usage for decades.

2a. Standard of review for NEPA decisions on appeal.The Organizations believe a brief summary of the standard of review applied by Courts reviewing agency NEPA analysis is relevant to this discussion, as the Courts have consistently directly applied the NEPA regulations to EIS review. As a general review standard, Courts have applied an arbitrary and capricious standard of review for agency actions under NEPA. This standard is reflected as follows:

“…it required only that the agency take a “hard look” at the environmental consequences before taking a major action. See, Kleppe v. Sierra Club, 427 U. S. 390,427 U. S. 410, n. 21 (1976). The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions, and that its decision is not arbitrary or capricious. See generally, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 401 U. S. 415-417 (1971).”1

The Organizations vigorously assert that a hard look has not been taken on cultural resource issues and endangered species management issues. The Organizations submit that the expanded scale and scope of protection of cultural resources is simply unprecedented as 99.3% of the sites proposed are found to be worthy of management and is arbitrary and capricious as a matter of law and a direct violation of cultural resource laws. The failure to properly balance cultural resource management with other multiple uses is also a violation of law as management is clearly reflected a trustee type position being taken for cultural resources to the detriment of other multiple uses to be balanced in a NEPA analysis.

The arbitrary and capricious nature of the cultural resource management standards is further evidenced by the fact that usages that created some of the sites is now prohibited from continuing as exemplified by the fact that routes created for or by multiple use are now closed to multiple use in order to protect the cultural values of the route. This position completely lacks any basis in law or fact.

2b. The standard of review for economic benefits is a de novo standard as the Courts have consistently substituted their judgment regarding the benefits of economic activity.While the general standard of review for agency actions is an arbitrary and capricious standard of review, Courts have consistently held agencies to a much tighter level of review of economic benefits in the NEPA process, as the court makes their own conclusions regarding the accuracy of review without deference to agency findings. Relevant court rulings addressing economic analysis and benefits have concluded:

“an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.”2

The Court discussed the significance of economic benefits and analysis in planning as follows:

“Misleading economic assumptions can defeat the first function of an EIS by impairing the agency’s consideration of the adverse environmental effects of a proposed project. See, South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011-12 (5th Cir.1980). NEPA requires agencies to balance a project’s economic benefits against its adverse environmental effects. Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1113 (D.C.Cir.1971). “3

The level of accuracy of the hard look at economic analysis applied by the Court in the Hughes River decision is significant as the Hughes River Court invalidated an EIS based on an error in economic contribution calculations of approximately 32%.4 As more specifically addressed later in this appeal, economic contributions of recreational usage and related jobs expanded to more than 7 times original estimates between the draft and final RMP but the management of the more than 1,894 sites identified for cultural resource management simply never changes in terms of total sites, allocation of these sites to use categories or management standards that are associated with the usage categories. The Organizations submit that any assertion that a 7 times expansion of recreational spending and jobs would not impact these issues would completely factual and legal basis as recreational usage is directly impacted by the closure of 1,894 football field sized sites around the field office.

3a. Information regarding ineligible historical sites has been illegally withheld from the public in the GJFO process and the FRMP must be reversed.The Organizations submit that there is a preliminary evidentiary question of law for this tribunal to resolve prior to proceeding to the substantive claims in the appeal, which is

“May a NEPA review be confirmed when inventory information that must be provided to the public for 966 sites that are subject to mandatorily closure has been claimed to be confidential?”

The Organizations submit that as a matter of law the 51% of the possible cultural sites identified as “ineligible for listing” on the National Register (966 of 1,854 sites identified) are no longer subject to confidentiality provisions of a §106 designation. Rather as a matter of law, this inventory information must be released to the public. The continued failure to provide this information has materially and directly impacted the Organizations ability to meaningfully comment or review the proposed mandatory closures for these areas. The Organizations vigorously assert that the agencies must not be allowed to flagrantly disregard regulations waiving claims of confidentiality to avoid the public review process of NEPA and then hide behind claims of confidentiality on appeal. Such a position is both illegally and morally reprehensible.

As a matter of law, the confidentiality provisions of a §106 review are ineligible to sites that are found ineligible for management and are being addressed in the NEPA process. The Organizations vigorously assert that determining a site is “not eligible” for management renders the site outside the protection of §106 as information must be disclosed in the public process of analysis of multiple uses under NEPA. Under historic preservation laws, the release of information regarding the determination that a site is “ineligible” for listing is mandatory. These regulations specifically provide:

(1) No historic properties affected. If the agency official finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them as defined in § 800.16(i), the agency official shall provide documentation of this finding, as set forth in § 800.11(d), to the SHPO/THPO. The agency official shall…. make the documentation available for public inspection prior to approving the undertaking. (i) If the SHPO/THPO, or the Council if it has entered the section 106 process, does not object within 30 days of receipt of an adequately documented finding, the agency official’s responsibilities under section 106 are fulfilled.5

§106 experts clearly identify the scope of the §106 process and confidentiality in relation to continued analysis of sites under NEPA as follows:

“You may, of course, come out of the identification process having found nothing that’s eligible for the National Register. In this case, you determine that no historic properties will be affected and give the SHPO/THPO and other consulting parties thirty days to comment, and if the SHPO/THPO does not object within that time, your through with Section 106 review. You may have to deal with ineligible properties under NEPA or other laws, but section 106 review is done.”

Representatives of the Organizations have repeatedly and vigorously requested supporting documentation to address the basis for mandatory closures of all historical sites, even those found 966 sites found ineligible, in the GJFO planning process. These requests have taken many forms, including formal FOIA requests. When these written requests were declined based on confidentiality and predecisional documents claims, the Organizations sought to obtain information in a more informal manner, such as requesting on site visits with staff to trails in historic areas during quarterly meetings with the GJFO. The Organizations submit that the information on historical sites was not predecisional as the §106 process is entirely separate from NEPA and concludes with determinations regarding eligibility of sites as a matter of law. Even these informal site visits have been declined due to confidentiality issues.

The Organizations submit that additional documentation addressing eligible sites could have been easily redacted from the complete inventory of cultural sites to remove confidential information regarding eligible sites and significant additional information regarding ineligible sites could have been provided to support the mandatory closures of areas in the NEPA process that were found ineligible for listing. The GJFO chose not to proceed in this manner and instead chose to create a simplistic summary worksheet in violation of regulations requiring the release of this information. The Organizations vigorously assert that the fact pattern in the Block decision, discussed subsequently, precludes this type of summary worksheet and withholding of underlying inventory information.

The Organizations submit results in the application of §106 confidentiality provisions in a manner that allows continued claims of confidentiality for ineligible sites is a direct violation of federal law. The Organizations are simply unaware of any provisions outside §106 that provide for unilateral claims of the confidentiality of sites or artificial limitations on the scope of review by agency in the NEPA process. Such a position would directly conflict with one of the foundational hallmarks of NEPA analysis, mainly a full and fair public process of the agency decision making process regarding mandatory closures around cultural sites. The Organizations further submit that mandatory balancing of usages regarding closures of ineligible sites simply cannot be legally sufficient in a multiple use balancing decisions with evidence provided in Appendix I of the FRMP. That information is routinely limited to descriptions of “open lithic” or “open camp” that “needs data or assessment” for sites that are ineligible for listing. These descriptions are additionally insufficient to justify the limited range of management alternatives that are provided for sites that are ineligible for listing.

The Organizations further submit that the prejudice to the public resulting from the illegal assertion of confidentiality cannot be mitigated by an in camera review of the documents with the court to review the basis and scope of redaction of information. There simply has been no information provided to review in this manner and undertaking such a review would be a violation of the mandatory requirements of public disclosure of this information. The Organizations submit that failing to provide the basis for mandatory closures to all surface disturbing activities being imposed on the 966 sites found ineligible for listing is a reversible decision on appeal.

3b. Withholding of information on ineligible cultural sites is a per se violation of NEPA requirements.In addition to the withholding of specific information on the 966 ineligible sites directly violating historical preservation laws, such a position violates both the spirit and requirement of sufficient public involvement in NEPA analysis and relevant case law applying these NEPA standards. Courts have routinely reversed NEPA decisions when there is a failure to provide supporting documents for public review. Agencies that seek to provide a worksheet instead of the underlying documentation do so at their peril. In a NEPA proceeding, education and involvement of the public as to the basis and process of analysis utilized by the agency for decisions is one of the hallmarks of the proceeding. The Organizations submit that public involvement as a foundational principal in the NEPA process is woven throughout those regulations to such a degree as to make specific citation to each provision impossible. However, the Organizations submit that there are two specific provisions of the NEPA regulations that directly relate to the proper levels of public involvement in agency documentation as to warrant specific discussion.

NEPA provisions specifically address the need to make related agency materials available for public review as part of the NEPA process. These provisions explicitly and clearly provide:

“If another decision document accompanies the relevant environmental documents to the decisionmaker, agencies are encouraged to make available to the public before the decision is made any part of that document that relates to the comparison of alternatives.”6

NEPA regulations further specifically address underlying documents and the broader scope of disclosure of these documents in the NEPA process as follows:

(f) Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed action. 7

Courts reviewing NEPA analysis where critical inventory information has been withheld have uniformly held not only EIS, but also the data and documents on which EIS rely, must be available and accessible to the public. If such materials are not readily available to the public, an agency is barred from invoking them in Court in defending the adequacy of the analysis and that failure to disclose this information is a reversible error under general NEPA analysis. The Courts have explicitly stated in matters addressing the intentional withholding of supporting documents in the NEPA process that:

“Second, in any event we conclude that the worksheets cannot be fairly considered as part of the RARE II Final EIS. It is settled in this circuit that any supporting data or studies expressly relied upon in an EIS must be “available and accessible” to the public. Trout Unlimited, Inc., 509 F.2d at 1284. The WARS worksheets, however, are scattered all over the country in various Regional Foresters’ offices, dooming any practical attempt to review comprehensively the worksheets. Given this inaccessibility, the worksheets may not be considered in determining the RARE II Final EIS’s adequacy. “8

The Organizations would be remiss if the similarity of process related issues between the situation presented in the Block Court decision and the GJFO handling of cultural resources inventory were not addressed. In both matters, site specific inventory information was withheld in favor of a worksheet style scoring summary of factors being provided to the public to outline the factors alleged to be used in balancing usages in the NEPA process. The Block Court decision directly addresses this policy as follows:

“Second, little explanation is given to justify the numerical values given these variables. The Final EIS, for instance, offers no explanation of how resource output levels were assigned to each area. The EIS states that the levels “may appear to have been arbitrarily selected but, in fact, represent a realistic establishment of acceptable resource trade-offs to provide various alternative approaches.” RARE II Final EIS at 21. The Final EIS, however, does not explain what the tradeoffs were or why they were considered acceptable or realistic. California v. Bergland, 483 F.Supp. at 490. Rather than utilizing the Final EIS as an instrument for airing the issue of resource demand, the Forest Service instead shrouded the issue from public scrutiny behind the claim ofadministrative expertise.”9

The Organizations submit that as further information regarding the nature of sites simply is not confidential, as the Agency completely lacks authority to unilaterally assert privilege in a NEPA proceeding.

As a matter of law, GJFO is now precluded from relying on any additional information to substantiate the basis for their decisions to preclude all usage of these 966 areas. The Organizations vigorously assert that when the entirety of evidence to support the mandatory closures of any area and artificially limited range of Alternatives for the management of ineligible areas under multiple use tenants is “open camp” or “open lithic” that “needs data or assessment” , such a position is insufficient as a matter of law. The Organizations submit the unilateral and illegal decision to continue to treat ineligible sites as confidential directly evidences the priority position that these sites have been continuous provided in the NEPA balancing of multiple uses. The Organizations vigorously assert that the illegal withholding of information regarding ineligible sites has materially and directly impaired the publics ability to comment on the decision making process and address site specific issues on appeal.

As no information regarding cultural sites has been provided under an illegal assertion of confidentiality, the agency must be precluded as a matter of law from relying on any additional documentation to support management of these sites. Such reliance would be a direct violation of NEPA requirements. The Organizations submit that this preclusion applies to all phases of review, including a possible in camera review of evidence by the Court. The Organizations submit that the continued application of confidentiality claims under §106 to ineligible sites is a violation of NEPA planning requirements of a full and fair public involvement in the decision making process. The Organizations submit that any additional documentation on this issue is precluded from the administrative record as a matter of law and that as a matter of law both the decision to apply mandatory closures and a limited range of alternatives for management of these sites are unsustainable under multiple use management requirements.

4. Management of possible cultural resource sites is governed by multiple use principals under federal law.The Organizations believe a review of the statutory management requirements for cultural sites is highly relevant to this appeal. The Organizations do not contest that the National Historic Preservation Act of 1966 10(“NHPA”)provides for an extensive process that must be undertaken in order to consult with Native Americans, identify and inventory cultural sites on public lands

to be followed. The NHPA provides extensive guidance for the cultural site inventory process and general objectives, but the NHPA stops short of addressing management of these sites. Rather NHPA is largely procedural in nature and does not mandate a specific outcome in the management process as it provides as follows:

” It is the policy of the Federal Government, in cooperation with other nations and in partnership with States, local governments, Indian tribes, Native Hawaiian organizations, and private organizations and individuals, to—

  1. use measures, including financial and technical assistance, to foster conditions under which our modern society and our historic property can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;
  2. provide leadership in the preservation of the historic property of the United States and of the international community of nations and in the administration of the national preservation program;
  3. administer federally owned, administered, or controlled historic property in a spirit of stewardship for the inspiration and benefit of present and future generations;
  4. contribute to the preservation of nonfederally owned historic property and give maximum encouragement to organizations and individuals undertaking preservation by private means;
  5. encourage the public and private preservation and utilization of all usable elements of the Nation’s historic built environment; and
  6. assist State and local governments, Indian tribes and Native Hawaiian organizations, and the National Trust to expand and accelerate their historic preservation programs and activities. “11

Congress did not specifically address management of cultural sites until FPMA was adopted in 1976. Here Congress clearly stated that cultural resources are a factor to be balanced as a multiple usage of public lands. Congress has repeatedly had the opportunity since adopting FLPMA to exclude cultural resources from this balancing process and chose not to make such an amendment. Rather Congress has repeatedly and clearly stated the requirement that cultural resource protection be governed by multiple use requirements. The management of cultural resources on public lands is specifically addressed in FLPMA which states as follows:

(8) the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use;” 12

Several years later, Congress had the opportunity to change cultural resources management standards and alter the balance of multiple use requirements in relation to cultural resources management. Again, Congress chose not to make such an amendment by clearly stating in the Archaeological Resource Protection Act as follows:

“SEC. 12. (a) Nothing in this Act shall be construed to repeal, modify, or impose additional restrictions on the activities permitted under existing laws and authorities relating to mining, mineral leasing, reclamation, and other multiple uses of the public lands.”13

The Organizations submit that cultural resource management is a two step process: 1: creation of an inventory and allocation of sites to use categories; and 2: balancing protection of inventoried sites with multiple usages of these areas. The Organizations vigorously assert that the Grand Junction FRMP clearly has placed the management of cultural resources ahead of all other multiple uses and has failed to balance impacts from cultural resource protections with other activities by managing each site as a trustee as evidenced by the fact that the only sites excluded from management were actually impossible to manage as they had been destroyed by fire or previously sold. The Organizations submit that this failure to balance multiple uses is directly evidenced by the fact that economic contributions from recreational activities expanded to more than 7 times original estimates between the draft and final RMP and absolutely no changes were made to the total number of cultural sites, allocation of cultural sites to management categories, management standards for each category of usage or the fact that eligibility for the national register simply was not addressed.

Numerous BLM manuals issued relative to the application of these Congressional mandates and outlining proper implementation of the required balancing of multiple uses with cultural resources management have specifically stated clarified the lack of a priority management position for cultural resources in relation to other multiple uses as follows:

“B. The Nature of BLM’s Tribal Consultation under Cultural Resource Authorities. In contrast, BLM’s tribal consultation under cultural resource authorities generally does not involve either Indian lands or trust assets, and consequently there is no ownership-based presumption that a tribe’s input will compel a decision that fulfills the tribe’s requests or resolves issues in the tribe’s favor. The BLM manager must make an affirmative effort to consult, and must consider tribal input fairly; but decisions are based on multiple-use principles and a complex framework of legal responsibilities, not on property principles and the obligations of the trustee to the trust beneficiary.14

C. Apart from certain considerations derived from specific cultural resource statutes, management of cultural resources on the public lands is primarily based on FLPMA (see .O3H), and is governed by the same multiple use principles and the same planning and decision making processes as are followed in managing other public land resources.”15

It is the Organizations position that consideration of tribal input applies both ways, as cultural resources must be balanced in multiple use and multiple usage must not be completely excluded from cultural resource sites. The Organizations submit that the GJFO applies cultural resource concerns in a manner consistent with a trustee and has simply ignored that decisions must be made on multiple-use principles and a complex framework of legal responsibilities.

The Organizations submit that the position of the Council on Environmental Quality (“CEQ”) in recently released guidance documents for cultural sites is highly relevant to this appeal. Newly released CEQ guidance documents provide the following statement:

“Traditional cultural landscapes describe an area considered to be culturally significant. They can and often do embrace one or more of the property types defined in the NHPA: districts, buildings, structures, sites, and objects. It is important to note that the challenges associated with the management of such sites, and their potential size, do not excuse the consideration of their significance.”16

It is the Organizations position that challenges in site specific management can no more justify the ignoring of cultural resources in multiple use planning as it can justify the exclusion of all multiple uses from cultural resource areas. Again the Organizations submit that the GJFO RMP manages cultural resources as a trustee would manage a trust rather than a balanced interest in multiple usage as directly evidenced by the fact that the only sites released from further management were either sold by BLM previously or destroyed by fire.

5a(i). The range of alternatives has been inappropriately limited for cultural resource management as benefits of a designated trail system are never addressed.The Organizations vigorously assert that the determination that all cultural resources will be managed as a trustee would manage a trust rather than in compliance with multiple usage mandates has directly impacted the range of alternatives that were provided to the public in the draft RMP. The Organizations submit this failure is arbitrary and capricious and a per se violation of NEPA planning requirements. CEQ regulations specifically address the proper range of alternatives in a NEPA analysis as follows:

“§ 1502.14 Alternatives including the proposed action. This section is the heart of the environmental impact statement. Based on the information and analysis presented in the sections on the Affected Environment (§ 1502.15) and the Environmental Consequences (§ 1502.16), it should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. In this section agencies shall:
(a)
Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.
(b)Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.”17

Newly released CEQ guidance documents address the relationship of NEPA and proper satisfaction of the informational requirements and historic preservation statutes clearly identify the range of alternatives and data quality for cultural resources to be provided in an EIS as follows:

“The CEQ regulations require agencies to describe the environment, including cultural resources, likely to be affected by the proposed action and alternatives, and to discuss and consider the environmental effects of the proposed action and alternatives, so decision makers and the public may compare the consequences associated with alternate courses of action. Data and analysis vary depending on the importance of the impact, and the description should be no longer than necessary to understand the effects of the alternatives, with less important material summarized, consolidated, or referenced.”18

The Organizations are deeply concerned that the FRMP addressed cultural resource protection by adding 15 new standards for the management of these areas.19 These 15 new standards are exactly the same for every alternative, causing the Organizations to believe there was simply no intent to balance usages as there was 45 different opportunities to balance usage and none were ever taken. These standards simply manage these areas as trustee would manage a trust. At no point is there any language that even references possible flexibility for balancing of multiple uses in these standards.

The Organizations submit that there are clearly Alternatives for management of cultural resources that have not been explored in NEPA analysis as the determination was made early in the management process that cultural resources would be managed under standards of a trustee managing a trust rather than as a balanced usage. The Organizations further submit that proof of viable alternatives not being provided is directly evidenced by the fact that cultural resource management standards in the GJFO FRMP result in standards that Congress has specifically determined are not appropriate for cultural sites, such as mandatory closures around routes and are simply unrelated to the historical usage of the site.

The Organizations submit that the limited range of alternatives provided for the management of OHV travel in association with cultural resource sites in the GJFO RMP becomes immediately apparent when GJFO management is compared to national BLM guidance for the use of OHV’s in association with possible cultural resource sites. The national BLM guidance issued to supplement manual 8110 provides for a wide range of management alternatives to allow for continued OHV usage around these areas. 20 The Memorandum starts the analysis by identifying categories of usage that are outside the cultural resource management issue as follows:

“Potential for Adverse Effect: The potential effects of proposed designations differ according to the extent of anticipated change in OHV use.

A. Proposed designations that will not change or will reduce OHV use are unlikely to adversely affect historic properties and will require less intensive identification efforts. These include designations that (1) allow continued use of an existing route; (2) impose new limitations on an existing route; (3) close an open area or travel route; (4) keep a closed area closed; or (5) keep an open area open.”

Given that 40% of the GJFO remains managed as an open riding area designation and clearly there are routes that could be kept open, the Organizations submit that there are clearly alternatives that could have been developed to preserve access. No analysis or discussion is ever provided as to why these alternatives were found insufficient to protect cultural resource sites. Such an alternative would be highly viable in areas that lack data or are ineligible for listing on the National Register, which encompasses 78% of the sites identified in the inventory. The Organizations submit this complete lack of analysis is direct evidence of the determination that all cultural resources would be managed as a trustee managing a trust rather than as a balanced multiple use of public lands. The management alternatives provided in national BLM memorandum clearly could have been reflected under one alternative of the 15 new categories of management. This simply was not done.

In addition to the above landscape level discussion of alternatives for these areas, the Memorandum continues with an extensive discussion of the relationship of travel management standards to the value of the historic site and alternative that are available to avoid closure of the route. These provisions specifically provide:

“D. Development of Planning Alternatives: Selection of specific road and trail networks and imposition of other use limitations, should avoid impacts on historic properties where possible. In accordance with 43 CFR 8342, existing cultural resource information must be considered when choosing among the range of alternatives for the design of a planning area travel system, including the potential impacts on cultural resources when determining whether each of the routes or areas in a planning area should be designated as open, limited, or closed. Sensitive resource areas may be protected through rerouting, reconstruction, and new construction, limitations on vehicle type and time or season of travel, in addition to closure. Evaluation of routes or areas to be designated as closed to protect cultural resources may be based on existing inventory information and should not be postponed until additional information is acquired. ”

The Organizations submit that any position asserting mitigation of impacts by rerouting, reconstruction and limitations was not possible at all of the 1,894 sites identified in the inventory clearly lacks factual or rational basis. The Organizations submit that the complete lack of factual basis in such an assertion clearly evidences that alternatives that were available and simply never provided for public comment or analysis for reasons that are unclear.

5b(i). Determining the proper scope of protection and implications to multiple usage simply cannot be measured as 78% of sites need data or are ineligible for listing.As more specifically addressed later in this appeal, the impacts of economic contributions flowing from spending and jobs was expanded by more than 7 times from draft to final yet no explanation of why the allocation of cultural resources was not impacted by this change has even been attempted. The Organizations submit that even without this change the lack of alternatives for management of possible cultural sites is immediately apparent when the allocation of sites to use categories and eligibility of sites is reviewed. Every alternative in the draft and final EIS had the same management standards associated with usage categories. These usages are summarized as follows:

Use Category Mandatory closure # of sites in Draft # of sites in Final
Scientific 100m 1,574 1,574
Conservation 100m 4 4
Traditional 200m 135 135
Public usage 100m 95 95
Experimental n/a 79 79
Discharge n/a 7 7
TOTAL 1,874 1,874

After a summary of the eligibility analysis in appendix I is prepared, additional basis for concern regarding the limited range of alternatives becomes immediately apparent as 78% of sites are identified as ineligible for listing or needing data. That summary of appendix I eligibility provides the following conclusions:

Eligibility of site for Listing Draft Final
Actively on National Register 3(.1%) 3 (.1%)
Possibly eligible for listing 398 (21%) 398 (21%)
Lacking data/assessment 520 (27%) 520 (27%)
Not Eligible 966 (51%) 966 (51%)
Released from further 7 (.3%) 7 (.3%)
Total 1,894 1,894

These eligibility criteria in no way relate to the classification of usage, again causing the Organizations to submit that the lack of data in no way was addressed in planning. Clearly the lack of data or ineligibility would warrant a higher percentage of these sites being in lower protection areas if balancing of usages had occurred. That simply did not happen. There simply can be no comparison of impacts from various management alternatives as none have ever been provided despite the fact that 78% of sites have been identified as ineligible for protection on the National Register or completely lacking data for analysis. As 78% are lacking data or ineligible for listing there is a high degree of discretion in decision making that has been performed on these sites but no analysis or information has been provided to the public to provide insight into this process and how a proper balance of multiple usage was insured. Again, only 7 sites being released from management due to the impossibility of future management is a significantly different standard that a balanced approach to management of areas suitable for further management.

While 78% of sites simply have no data or are found ineligible for listing all sites is subjected to a minimum 100 m exclusion of all surface disturbing activity.21135 sites are governed under a 200m mandatory closure to surface disturbing activity.22 The term “surface disturbing activity” is simply never defined in the GJFO RMP, causing further concern about the ability to consistently address impacts from management. How can there be any argument that usages were balanced for these areas when the plan completely fails to define what is and what is not a permissible usage. The term “surface disturbing activity” is the basis for active discussions in Sage Grouse management which relies on the following definition:

Surface-disturbing activities. An action that alters the vegetation, surface/near surface soil resources, and/or surface geologic features, beyond natural site conditions and on a scale that affects other public land values. Examples of surface disturbing activities may include: operation of heavy equipment to construct well pads, roads, pits and reservoirs; installation of pipelines and power lines; and the conduct of several types of vegetation treatments (e.g., prescribed fire, etc.). Surface disturbing activities may be either authorized or prohibited.”23

Federal law has mandated protection of historical sites only if they are significant or important, and mandating some type of site specific review before management standards can be determined. While additional sites may be managed under agency discretion, all management decisions must be balanced as a multiple usage of public lands and not as a trustee would manage a trust. The failure to balance multiple use in proposed cultural areas simply cannot be accurately addressed in this appeal/protest as much of the information needed to create a meaningful appeal/protest on this issue has simply been withheld. The failure to provide this information makes any appeal of specific impacts from the limited range of alternatives very difficult if not impossible. The Organizations submit that a designated trail system in these areas would effectively mitigate impacts to lesser important sites and make complete closure unnecessary.

5b(ii). Management standards provide no flexibility to address localized geographic issues which will result in significant unintended economic impacts.The Organizations submit that the failure to balance multiple uses is also evidenced in the FRMP failure to provide any flexibility in management standards for localized issues. This lack of flexibility will cause the loss of opportunities in areas that are completely unrelated to the possible cultural sites, as many areas of the GJFO are exceptionally rugged and have limited areas where routes may be placed. While the access point may be in a bottleneck opportunities that would be lost by closing the bottleneck would be significant. It is simply unreasonable to assert that access can be preserved if a cultural site is in the bottom of a canyon that is also the location of an important route using the canyon bottom. Closure of the 100 or 200 meters around the site could block a route and preclude access to a large areas of the GJFO that are miles from the cultural site for a huge number of activities. Rerouting this route to the steep canyon wall would simply be impossible. Again this situation directly evidences the failure to properly balance site specific issues as part of the multiple use process.

5c(i). Landscape level comparisons directly evidence the impacts of managing cultural sites ina manner similar to a trustee managing a trust.The lack of factual basis and balancing of multiple uses in the GJFO conclusions of a balanced usage for cultural site management provided in the appendix I is confirmed as the appendix notes that only 7 (.3%) sites of the 1,894 inventoried for management were found to lack significance. All other sites were allocated to a specific level of use management, indicating some level of significance or importance in the site. The Organizations vigorously question this step, as most sites clearly do not meet the criteria for further management as they are identified as open camps or open lithics. The Organizations simply do not believe that any campsite or unidentified stone formation, no matter how consistently used hundreds of years ago, will ever meet the statutory requirements of significance or importance to justify listing on the national register of historical places. The Organizations believe this is facial evidence that the application of the “significance” standard was entirely too loose and allowed many sites that truly are not significant to be managed as significant sites.

The failure to properly balance usages and importance of sites results in the positioning of the Grand Junction area as probably the most historically significant area if the number of historic sites was a metric of this analysis. Currently, there are 50 sites listed on the National Register of Historic Places in the GJFO planning area. GJFO RMP seeks to expand listing and management to 1,894 sites. The scope of the impact of this standard on the GJFO planning process is simply immense. A review of the appendix for cultural sites reveals GJFO has identified 1,894 sites on the planning area that meet the criteria for designation on the National Register of Historic Places. This level and density of cultural sites in any location is simply unprecedented when compared to the scope of the National Register of Historic Places in Colorado, as currently in Colorado there are only 1,430 sites on the National Register of Historic Places.24The overwhelming portion of these 1,894 historic sites are located in towns, villages and other municipalities and outside the scope of analysis in federal planning. Clearly this position lacks factual or legal basis when compared to the fact that only 1,420 sites have been identified in Colorado since the creation of the National Register.

Of the sites currently on the National Register in Colorado, only 50 are located in the vicinity of the GJFO and all are restored homes, bridges, municipal buildings or churches none of which are under BLM management. 25The GJFO position is that the national register in Garfield and Mesa County should be expanded by a factor of 38x. This position completely lacks factual and legal basis. The Organizations believe that any review of these sites by the Historic Register Committee would result in the immediate decline of almost every site as they are neither significant or important also would position Garfield and Mesa counties as the most historically important counties in the nation. The Organizations submit that position simply lacks factual and legal defensibility.

The Organizations believe a comparison of the total number of sites identified by the GJFO for mandatory protection as cultural sites to the number of cultural sites currently managed in Washington DC is highly relevant to the appeal/protest. Washington DC only has 569 sites on the National Register and the Organizations submit that any assertion that Grand Junction Colorado has 3.5x more sites worthy of protection than Washington DC facially evidences the arbitrary and capricious nature of the decision. Again such a position lacks factual and legal defensibility.

5c(ii). The imbalance of multiple uses is supported by the amount of trails lost due to Endangered Species issues and cultural resources protection.Prior to addressing specific management standards the Organizations believe a review of the mileage of routes lost is highly relevant. FRMP identifies that 1,296 miles of routes have been lost for cultural and wildlife issues.26 The FRMP further identifies that the total mileage of routes lost for sensitive and endangered species as 679.527. Based on this analysis, the conclusion must be reached that 617 miles of routes have been lost solely due to cultural resource concerns prior to the application of any site specific management requirements. The Organizations submit that the fact there is this level of consistency on the basis of closures between endangered species habitat and cultural resources is an indication of an imbalance in the analysis of cultural resources, which remain subject to multiple use planning requirements.

5c(iii). Mandatory closures of all possible cultural sites conflicts with national objectives for the utilization of historical sites.The Organizations submit that the mandatory closures of all historical sites to surface disturbing activities in the GJFO RMP directly conflicts with management by NPS for historical sites. In contrast to the GJFO mandatory closures, the website for the National Register of Historic Places actively identifies 9,495 sites nationally that are vacant and solicits usage as these sites which may be an ideal location for your next home or business.28The arbitrary and capricious nature of the GJFO management is immediately apparent when compared to these utilization efforts as living in a property is probably a surface disturbing activity.

Additionally, the National Trust for Historic Preservation provides links to specialized realtors who specialized in connecting homes on the national register with potential buyers.29 The states of New Hampshire, Arkansas historic preservation offices facilitate the purchase of historic homes as primary residences. The Organizations would be remiss if they did not note that residing in a historic property is probably a surface disturbing activity and would now be prohibited under GJFO management standard. Again these programs directly evidence are the kind of multiple use impacts that weigh heavily against imposition of blanket landscape level closures and the arbitrary and capricious nature of the determination that surface disturbing activities must be prohibited as there is a direct conflict with these programs and GJFO management.

6a(i). GJFO management of cultural properties violates Federal law requirements of protection of sites that are important or significant.The Organizations believe the protection of significant cultural sites is an important planning criteria. While this is an important planning criteria, the Organizations are aware that all historical sites are not significant and cannot be saved for a variety of reasons. The requirement of “significance” is an important factor in determining the proper levels of management and analysis of historical sites in the planning process. Prior to addressing the facial violations of federal law that are present in the FRMP standards for cultural sites, the Organizations believe a review of relevant federal statutes is warranted as these statutes provide exceptionally clear management standards. Federal law governing cultural resources provides a general standard to address cultural resources as follows:

“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.”30

The Organizations again submit that §106 provides an inventory methodology to insure cultural resources are balanced in multiple usage decision making and provides no priority for these sites in the multiple use process. Pursuant to the rules and regulations promulgated under §106, the “significance” of the cultural site and resulting eligibility of a site for designation on the National Register is a primary factor in determining if there is required management to be addressed in planning. The CFR provisions specifically provide:

“(c) Evaluate historic significance. (1) Apply National Register criteria. In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified properties and guided by the Secretary’s Standards and Guidelines for Evaluation, the agency official shall apply the National Register criteria (36CFR part 63) to properties identified within the area of potential effects that have not been previously evaluated for National Register eligibility. The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineligible. The agency official shall acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them.

(2)Determine whether a property is eligible. If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes. If the agency official determines the criteria are not met and the SHPO/THPO agrees, the property shall be considered not eligible. If the agency official and the SHPO/THPO do not agree, or if the Council or the Secretary so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR part 63. If an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to a property off tribal lands does not agree, it may ask the Council to request the agency official to obtain a determination of eligibility.”31

The need for findings regarding the “significance” or “importance” of a site to trigger mandatory management of historical places are specifically outlined in the BLM manual in a manner that is consistent with federal law. The manual specifically states:

“E. The National Register Criteria. A district, site, building, structure, object, traditional cultural property, historic landscape, or discrete group of thematically related properties, that represents America’s history, architecture, archaeology, engineering, or culture may be eligible for the National Register. To be judged eligible, a property must possess integrity of location, design, setting, materials, workmanship, feeling, and association, and must meet at least one of the following criteria:

  1. Property is associated with an event or events that have made a significant contribution to the broad patterns of America’s history. (Corresponds to 36 CFR 60.4 criterion “a”.)
  2. Property is associated with the lives of persons significant in our past. (Corresponds to 36 CFR 60.4 criterion “b”.)
  3. Property embodies the distinctive characteristics of a type, period, or method of construction, or represents the work of a master, or possesses high artistic value, or represents a significant and distinguishable entity whose components may lack individual distinction. (Corresponds to 36 CFR 60.4 criterion “c”.)
  4. Property has yielded or may be likely to yield information important in prehistory or history. (Corresponds to 36 CFR 60.4 criterion “d”.)”32While the lack of importance or significance does not preclude management, these factors clearly must relate to the level of management and usage of sites. Logically lesser significant sites would be allocated to usage categories with lower levels of protection. In the GJFO FRMP that simply is not the case.

    The Organizations believe the GJFO has completely erred in its determination that every site now and in the future will satisfy the “significance” factor and permit additional management. As previously noted the findings of significance in the GJFO planning process are deeply inconsistent with the findings of significance by outside reviewers in the State of Colorado. No information is provided regarding the nature or location of cultural sites due to confidentiality requirements making any analysis difficult, if not impossible. Furthermore existing recreational usage of several sites is identified but not accounted for in planning.

    The limited site specific summaries (95 of 1,894) directly evidence an overly broad application of protection for sites that are neither significant or important including:

    • old road and rail beds;
    • recorded telegraph lines and abandoned power lines;
    • irrigation ditches on adjacent private lands;
    • buried pipes and abandoned irrigation ditches;
    • fences of unknown origin;
    • two track roads of unknown origin and trails

The flagrant disregard for federal law and balancing multiple usage exhibited by these standards is simply astonishing and completely lacks factual or logical basis, as directly evidenced by the fact the GJFO plans to protect more site in the Field Office than are currently on the national register for the entire state of Colorado and three times as many sites as are currently in Washington DC. This standard also fails to address that many cultural experts in and around Grand junction admit that many of these marginally significant historical sites will simply never be excavated, as specifically noted in the appeal addressing wickiups. The Organizations believe that the lack of funding for such excavations is evidence of the lack of belief these areas will yield significant archeological information.

The Organizations are aware there is no mandate that a site be eligible for listing on the National Register of Historic Places in order to be managed as a historical site, however the ineligibility of a site for protection must be addressed in planning. Tables I-2 through I-7 of the cultural resources appendix specifically conclude most sites to be managed for scientific values related to cultural issues are found “not eligible” for inclusion on the National Register. Only 398 of 1,894 (21%) are found possibly eligible for listing. The fact that 78% of sites were identified as not eligible or needing data weighs heavily against the levels of closures that are proposed. As previously noted only 7 of the 1,894 sites inventoried were found not to need additional management as a result of their destruction or sale. Again a review of the suitability for management based on multiple usage cannot be based on the exclusion of the site from management only because it was destroyed or sold and impossible to manage.

6a(ii) . NEPA analysis requires detailed analysis of significant issues.The Organizations submit that the “significance” is a foundational tenant of NEPA analysis33 that weighs heavily against the closures proposed. The Organizations submit that the agency may not assert that a location for management is significant for purposes of a §106 analysis and then assert that the detailed analysis for proposed management of this sight is insignificant for purposes of NEPA analysis. Such a position is both legally and factually unsustainable.

6b. Mandatory closures around roads and trails results in management of these sites in violation of National Historic Trails Act requirements.The Organizations must briefly address the conflict that will result from GJFO RMP mandatory closures around roads, trails, abandoned power lines and other linear constructions and management standards for National Historic Trails. The Organizations submit that this is another area where mandatory closures directly conflict with Congressional action provided for in the National Trail System Act (“NTSA”).

The Organizations submit that the conflict with these specific Congressional actions and the management proposed by the GJFO indicates the arbitrary and capricious nature of the management standards that are provided. The arbitrary and capricious nature of the GJFO management is directly evidenced by the fact that the end result of management decisions is the corridor type closures being implemented without the checks and balances mandated by the NTSA.

While there is only sufficient information provided in the FEIS to address a small number of sites, the Organizations submit this comparison is highly relevant in addressing the failure to properly balance multiple usage of cultural sites and instead manages these cultural sites as a trustee. The GJFO trustee based management decision again creates direct conflict with management of areas that have already been identified as significant or important unlike the 1,894 sites in the GJFO planning area. Congress has repeatedly expressed concerns that historic routes and trails not serve as a barrier to multiple usage of lands surrounding the trail, despite the Congressional identification of the route as historic or significant. The Organizations submit that planners can’t simply avoid the legally identified process and then manage these areas in a manner that directly contradicts Congressional desire for the balanced usage of these areas.

Management of National Historic Trails is generally governed by the NTSA which specifically addresses multiple usage of areas adjacent to trails and how these multiple use mandates will relate to management of the trail. The NTSA provides as follows:

“Development and management of each segment of the National Trails System shall be designed to harmonize with and complement any established multiple use plans for that specific area in order to insure continued maximum benefits from the land.”34

The Organizations submit that the mandatory inclusion of multiple usage requirements in the management of these truly historical trails and routes again evidences Congressional concern regarding negative impacts to multiple uses that could result from these types of mandatory closures of long corridors. The Organizations submit that none of the routes identified in the GJFO RMP are sufficiently important or significant to warrant a discussion of possible addition to the national historic trails list, and as a result these areas are entitled to at least similar levels of protection of multiple usages. While these routes are not sufficiently important or significant enough to warrant listing, the proposed mandatory closures associated with these sites is exactly the type of management that Congress has repeatedly sought to avoid with more important routes and trails. The Organizations again submit this conflict is direct evidence of the arbitrary and capricious decision of land managers to manage cultural sites as a trustee rather than balance multiple usage of these areas.

6c(i). The failure to provide sufficient analysis of impacts from surface disturbing activity is stark when GJFO cultural processes are compared to the Northwestern Colorado Sage Grouse management efforts.The Organizations believe that the arbitrary and capricious nature of the decision that mandatory closures are required for cultural sites is again evidenced by comparison to the efforts of the BLM managing Sage Grouse Leks in Northwestern Colorado. The overlap of management concerns is significant as the site of active leks for sage grouse and location of cultural resource sites are confidential. Both issues are subject to multiple use planning until a decision is made on sage grouse status for ESA purposes. Both issues are subject to mandatory closures for surface disturbing activities. NWCO DEIS addresses these issues with literally thousands of pages of analysis, even though NWCO DEIS is addressing significantly smaller number of sites and moves away from mandatory closures for the management of leks. As a result, management of sage grouse habitat is a national issue with wide ranging input. The GJFO simply asserts the management is necessary without discussion or analysis. The explanation of the management process has resulted in management of sage grouse sites being a national issue with a large amount of input form a wide range of stakeholders. GJFO simply asserts this management is necessary without discussion of the similarity of management issues and stark contrast in analysis provided evidences the arbitrary and capricious nature of the GJFO position.

6c(ii). Cattle grazing is a serious threat to cultural sites and management of this issue simply has not been reviewed and will conflict with Sage Grouse management efforts.The Organizations submit that the arbitrary and capricious nature of the GJFO decision to close all cultural sites to surface disturbing activity is directly evidenced by the immediate conflicts that implementation of these closure standards will have with Sage Grouse management efforts in Colorado. The Organizations believe that implementation of management to exclude cattle grazing from all cultural sites will provide a stark example of this issue.

Cattle grazing has historically identified as a surface disturbing activity degrading grouse leks and habitat and is priority threat to cultural sites. This threat to cultural sites has been summarized as follows:

“It is common to find sites where structures are visible only as chunks of mortar scattered among the dung, with perhaps a tell-tale stain of clay along an alcove back wall to indicate a structure once stood there. Wherever livestock have access, surface artifacts are rare. The integrity of artifact concentrations is lost, and the artifacts themselves are not visible unless subsurface testing is done.”35

Previous cattle management efforts for the benefit of endangered species, such as the Prebles Jumping mouse, have identified that fencing is the only effective way to prohibit cattle from habitat areas. Given that fencing is the only effective manner to stop cattle incursion, this would be the major management tool for protecting cultural sites as well.

Undertaking a large scale fencing project for the protection of cultural resources would immediately conflict with management efforts currently undertaken to avoid the listing of the greater Sage Grouse in Northwestern Colorado. These efforts are seeking to minimize and remove fencing in sage grouse habitat areas due to the competitive advantage that these elevated perch areas give to predators. The NWCO sage grouse RMP applies the following standard for fencing while addressing management issues as follows:

“Where existing leases, ROWs or SUAs have had some level of development (road, fence, well, etc.) and are no longer in use, reclaim the site by removing these features and restoring the habitat.”36

The Northwestern Colorado Sage Grouse RMP provides the following management standards for fences:

“(PPH) To reduce outright GRSG strikes and mortality, remove, modify or mark fences in high risk areas within GRSG PPH based on proximity to lek, lek size, and topography (Christiansen 2009; Stevens 2011).” 37

While Sage Grouse management is highlighted, the Organizations are aware that large scale fencing activity is a major concern for many species both in terms of habitat quality, migration corridors and access to water. The NWCO Sage Grouse RMP summarizes this issue as follows:

“While the removal of livestock under Alternative C would be expected to lead to substantial improvements in herbaceous understories which would likely benefit terrestrial wildlife species in general; in all practicality, the only way to keep livestock out of these areas would be through the construction of fences. An estimated 5,000 miles of fence would need to be constructed under this alternative (see , Table 4.6, “Livestock Grazing Management-Alternative C” (p. 705), in Section 4.13, Range Management). Increased fence densities may have an impact to terrestrial wildlife species, particularly big game species. Potential impacts would depend on fence design and location (coincident with GRSG habitats).Conversely, if livestock were removed from public lands, there would be no need to maintain existing fences, particularly in areas with large, continuous tracts of publicly-owned land.”

The Organizations are completely unable to find any analysis of possible impacts to Sage Grouse habitat and other wildlife related impacts from expanded fencing of cultural areas to implement prohibitions to surface disturbing activities. The Organizations submit that given the possible listing of the Sage Grouse such a discussion would be highly relevant to the management of cultural sites, which again are only subject to multiple use planning standards. The Organizations are additionally aware that fencing 1,894 sites could also impact wildlife migration corridors, the effectiveness of winter range and many other species related issues. The Organizations submit that this conflict in basic policy direction and complete void of analysis is direct evidence of the arbitrary and capricious nature of proposed cultural resource management standards.

7a. Proposed management of all cultural sites in a manner similar to a trustee fa ils to address impacts of previous management in violation of federal law.The Organizations vigorously assert that the FRMP cultural management standards again violate Federal law, as the management of all possible sites as a trustee completely fails to address impacts of previous management decisions and impacts to cultural resources that may have resulted from these management decisions. The Organizations submit that the impacts of previous management decisions has directly and significantly impacted the scale and quality of cultural sites that remain on the GJFO. The FRMP proposes to protect 236 times the number of sites and more than 5x the number of acres for cultural sites as was identified in the 1985 RMP and 40% of the Field office remains governed by an open riding designation for travel management. The Organizations are unable to find any information regarding the quality of the 1,894 new sites and how these sites have been previously managed. The Organizations submit that any assumption that previous management decisions have not significantly degraded these sites would lack factual or legal basis there would be no evidence to prove these areas were not reviewed previously and found unworthy of protection.

Again the GJFO determination to manage all possible cultural sites as a trustee rather than a balanced multiple usage violates Federal laws mandating that the management history of cultural sites must be addressed in new resource management, which specifically provides:

The agency official shall take into account past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects.”38

The need for site specific analysis of the management history of each site to address possible impacts of previous management decisions as part of the management of cultural sites is again repeatedly addressed with far more specificity in the BLM NEPA handbook. The NEPA handbook specifically provides as follows:

“Scientific, cultural, or historical resources, including those listed in or eligible for listing in the National Register of Historic Places (40 CFR 1508.27(b)(8)). This factor represents a specific sub-set of the factor, “unique characteristics of the geographic area.” Significance may arise from the loss or destruction of significant scientific, cultural, or historical resources. For resources listed in or eligible for listing in the National Register of Historic Places, significance depends on the degree to which the action would adversely affect these resources.”39

The BLM cultural resources manuals specifically address the need to address possible impacts of previous management decisions in several other locations as follows:

“(5) The human uses of the land and resources through time, as evidenced in the prehistoric and historic record, and the ways that this knowledge of successful and unsuccessful past adaptations might apply to decision making for current land use proposals.” 40

The BLM cultural resources manual repeats this standard as follows:

“d. Environmental Factors. Past and present environmental factors important for understanding the study area’s prehistoric and historic human use and occupation, as well as factors affecting preservation, are discussed. Factors are those that describe the geographic system of the study area: …(6) The effects of human activity.
(7) The effects of time.
The factors are treated in terms of a dynamic, interactive system, and single- factor analyses are avoided.”41

As repeatedly and specifically noted in the BLM cultural resources manual, proposed management is required to address how the precluded action or usage would adversely impact the resource. Given this standard, the Organizations believe a meaningful analysis of how management standards are proposed to mitigate impacts on any resources are required under these provisions in addition to standards of NEPA compliance that are normally required.

In the 1985 RMP, which is being replaced, all cultural resources are managed as follows:

Cultural Resource Management – Eight sites covering about 11,600 acres would be actively managed as high value cultural resources. Active management includes inventory, stabilization, and protection from surface-disturbing activities.42

The Organizations believe this requirement is a major hurdle to the decision to management cultural sites as trustee as closures simply will never improve a previously damaged cultural resource and allow for analysis in the future. The FRMP fails to account for possible impacts from previous management standards regarding the 1,894 sites now sought to be managed as cultural sites and more than 53,000 acres now to be actively managed for cultural issues. The Organizations submit that any position asserting that previous management has not degraded these sites would lack factual or legal basis and would be arbitrary and capricious as a matter of law

Given that 42% of the GJFO is currently managed under an open riding designation, the Organizations are directly opposed to the closure of any area currently managed as an open riding areas for cultural issues. While it is unfortunate that previous inventory of cultural resources did not identify these possible resources as management issues, it does not alter the current status and lack of importance of these sites, which the GJFO analysis has concluded is marginal and not significant. These are areas where moving to a designated route system represents a viable management alternative that provides for a more balanced usage. Closing any area will simply not bring back resources that may have been lost due to previous inventory and management issues.

8a. There is simply no relationship between the proposed closure of several historic sites and the historic usage of the site.The Organizations submit that the application of mandatory closures to all historical sites fails to address the historical nature and usage of each site and yields site specific management that are arbitrary as a matter of law and completely lacking any logical basis. Again the Organizations submit BLM manuals are highly relevant to the issue as they provide:

The BLM cultural resources manual repeats this standard as follows:

“d. Environmental Factors. Past and present environmental factors important for understanding the study area’s prehistoric and historic human use and occupation, as well as factors affecting preservation, are discussed. Factors are those that describe the geographic system of the study area:
….. (6) The effects of human activity.
(7) The effects of time.
The factors are treated in terms of a dynamic, interactive system, and single- factor analyses are avoided.”43

The limited site specific summaries (95 of 1,894) directly evidence an overly broad application of mandatory exclusion standards for protection for sites to the historical usage.

  • old road and rail beds;
  • recorded telegraph lines and abandoned power lines;
  • irrigation ditches on adjacent private lands;
  • buried pipes and abandoned irrigation ditches;
  • fences of unknown origin;
  • two track roads of unknown origin and trails

The Organizations submit that the mandatory closure of old roads, trails and rail beds to multiple use recreation is arbitrary and capricious as a matter of law as the mandatory closure interferes with the historical usage and basis for the value in the site.

The Organizations further submit that mandatory closures for recorded telegraph line interests and buried pipes is arbitrary and capricious as a matter of law. The Organizations are unsure what historical value a recorded interest could be present and how mandatory closure protects and interest that is merely recorded in the county clerks office. The Organizations further submit that closure of areas over buried irrigation pipes simply has no basis in law or fact.

8b. Wickiups are frequently relied on for the basis for mandatory closures despite the limited importance and seriously deteriorated nature of these sites.While wickiups are only mentioned briefly in the RMP, the Organizations believe that the management of these structures and associated areas is worthy of inclusion to address the lack of significance and importance of sites. This position is supported by the fact that there are a huge number of open camps or open lithics that are identified for mandatory closures moving forward,. The Organizations further submit that a review of this issue allows for concrete examples of locations where management alternatives represent real solutions for protection of sites that simply are never even reviewed in the RMP and that site specific review must be looked at as a landscape level standard for cultural resource management.

While there is limited information on these sites, it is clear that many of these sites are not eligible for mandatory protection as religious or burial sites for Native American societies previously living in the area. The Organizations believe these structures have been the basis for significant closures to motorized access in the GJFO, as there are numerous references to open and sheltered camps in Appendix I of the FRMP. Given the exceptionally deteriorated status of these sites and open camp would be an accurate summary of the resource. The Organizations vigorously assert most of the wickiup sites on the GJFO are wholly insufficient to support designation on a historic register, and the overall poor condition must weigh heavily against any closures of access in the vicinity of these sites as most people will see at most a pile of sticks or small logs on the ground and pay not further attention to the pile of deteriorating trees.

Wickiups are briefly outlined in the FRMP as follows:

“The following sites of concern have been identified through consultation and would be a priority for nomination to the National Register of Historic Places and development of cultural resource management plans that would outline specific management objectives and actions for protection:

  • Wickiup camps and open camps with definitive Ute occupation (associated to Ute rock art, artifact assemblages and/or trails);
  • Isolated rock art;
  • Culturally Modified Trees (includes Scarred and Prayer Trees); and
  • Ceremonial features (e.g., eagle traps, vision circles, and special structures).

This list is in no way intended to be a comprehensive list and may continue to grow through consultation.”44The Organizations believe that a definition of a wickiup is very relevant to concerns regarding importance and significance and the balancing of multiple uses, as most of the public simply is not aware of what a wickiup even is. A wickiup is defined as:

“temporary conical and domed shelters and other brush and wooden structures have been constructed for millennia by the aboriginal inhabitants of the colorado river basin, just as they have throughout the world. based on the premise that in all temperate and harsh-weather regions of the world shelters were highly desirable, even necessary for human survival, it is likely that a significant percentage of prehistoric campsites in colorado included temporary shelters.” 45

The Organizations believe that photos of a wickiup site are even more helpful in understanding what a wickiup site is as most people simply are not familiar with the term and are not able to form an accurate picture of what is being discussed from the definition. Often the public believes that wickiup sites are far more significant structures than they really are. The Organizations vigorously assert that neither one of the sites identified in the pictures are significant enough to warrant inclusion on the National Register of Historic Places, especially in their current deteriorated status. Given the sheer number of sites found on the GJFO, the Organizations believe these types of sites make up a large portion of the sites to be managed. Below is a well preserved Juniper Wickiup:

201505_wikiup1.jpg 46

This photo represents a “well preserved” but collapsed wickiup:

201505_wikiup2.jpg 47

Given these pictures of “well preserved” wickiups, merely identifying a wickiup can be a significant concern. The Organizations are aware there are multiple volumes published to address wickiup research, and the Organizations encourage managers to review these volumes as they provide a significant review of the deteriorated condition and limited value items that are frequently identified at wickiup sites. This concern has been specifically noted by wickiup researchers as follows:

“Identifying wickiups can be a challenge. Partially intact structures with standing elements or collapsed structures with well-preserved poles in an obvious radial pattern are relatively easy to recognize. All that may be left of highly deteriorated structures, however, are one or two decayed poles on the ground, a pole or two leaning into a tree, or a concentration of weathered juniper splinters.” 48

The ability of researchers to even locate a wickiup site and accurately analyze the site has resulted in several examples being provided in analysis documents to allow wickiup sites to be located if pictures are taken by researchers. 49 In addition to be hard to locate, deteriorated wickiup sites often are simply not subjected to scientific review:

“Wickiup sites will most often be encountered during surface inventories and will only rarely be subjected to data recovery…..”50

As previously noted, the Organizations have serious concerns regarding the significance analysis provided for proposed cultural sites on the GJFO, and these concerns are directly substantiated by the common findings after analysis of a wickiup site. Researcher’s findings at wickiup sites are summarized as:

“First, wickiup interiors should be examined for hearths as evidenced by fire- cracked rock, charcoal, or ash stains. Concentrations of juniper bark may be present, likely in highly deteriorated condition, representing floor covering, bedding, or clumps of fallen structure closing material …. Artifacts may be visible on the modern ground surface inside wickiups, including flaked and ground lithics, ceramics, metal and glass items, and beads. Finally, there may be hearth furniture such as large flat-topped stones that functioned as pallet stones, expedient tables, or bone-reducing anvils ….”51

A review of the items found as a result of excavation of wickiup sites finds many items interesting and probably not of significance from a large scale historical perspective. The following photo reviews items found after excavation of a wickiup site:

201505_wikiup3.jpg 52The Organizations have to believe that the fact that most wickiup sites are not locatable by the public and probably will not be reviewed by scientists has to place these structures low on the priority list when compared with other multiple uses in the vicinity of the wickiup. Again these areas would be protected by the movement to a designated route system which would allow for a far more balance usage than that allowed under a mandatory closure standard.

The Organizations believe that management decisions, clearly made in violation of numerous planning statutes and federal law, similar to those outlined in this section have systematically plagued the GFJO FRMP development. The Organizations are simply not able to meaningfully comment on many of these issues as they are not discussed in the FRMP. Planners should not be able to make poor decisions and then benefit from their own failure to analyze or explain the basis for these decisions as part of a balancing of multiple usage.

9. Only one wickiup site is currently on the national register in Colorado.With the issuance of several grants, BLM has successfully developed a significant body of research regarding wickiups and the cultures associated with them. While the body of work that has been generated is very interesting, the work has not developed a large amount of support for the preservation of wickiups under more general historic preservation initiatives, such as state and federal registers of historical places. The Organizations have to believe that attempts to generate public support for protection of these sites may be difficult too. A review of the Colorado register of historic places reveals only the Duck Creek Wickiup Village in Rio Blanco County has been designated as a historic site. 53 The Organizations have to note that this is a significantly refurbished location that simply is not comparable to the wickiups in the GJFO.

Given the sparse density of the wickiups in the Debeque area and on other areas of the GJFO, the Organizations have to question is sufficient concern regarding these structures to warrant development of management standards that effectively close thousands of acres for these structures in the FRMP. The Organizations have to believe that the generally unidentifiable status of most of the sites had to weigh heavily in the decision not to designate these areas as historically significant.

Wickiups provide a concrete example of an area that could be significantly preserved by moving to a designated trail system while preserving the benefit to local economies that results from recreational usage of the trail that is preserved. Motorized recreation has been addressed as a possible management concern for wickiup sites, however these concerns are specifically mitigated by the GJFO going to a completely designated trail system.

10. 68 trash scatters and dumps are identified but no background information is provided as to the basis of the site.The Organizations must express additional concern regarding the mandatory closures of all sites identified as trash scatters and dumps. Again the position of nationally recognized experts on the proper management of these areas is the basis for direct concern about the balance of multiple usage. These experts specifically state:

“But of course there has to be reason. The scatter of beer cans along the roadside is not something that “might be eligible” – unless of course the road is pretty old and the people who drank the beer out of the cans were pretty important. “54

Again the Organizations are opposed to the mandatory closure of 68 sites on the FO based on a blanket determination that the roads are pretty old, and only important people left their trash in these locations. Such a position simply lacks any factual basis.

11a. Recreational economics simply have not been balanced in cultural resource management standards.

While the Organizations have serious concerns regarding the failure to properly balance multiple usage, the Organizations are even more concerned that serious recalculations of economic contributions and jobs from recreational activity was undertaken between the draft and final GJFO RMP. For reasons that remain unclear the expansion of the economic benefits of recreation by a factor of seven was not sufficient to trigger any recalculation of the total number of cultural sites to be managed, categorization of these sites in their usage category or rebalancing of management standards associated with categories or alteration of usage at sites that are needing data or ineligible for listing. Not only is this a violation of multiple usage requirements it is a per se violation of the higher standards of review that courts apply to agency determinations on economic benefits in the NEPA process. If the expansion of recreational spending to more than 7 times original estimates is insufficient to trigger any review, the Organizations have to question what the threshold for reviewing these classifications is.

The Organizations submit that a review of the legal standard for the review of economic issues applied by the courts to agency NEPA analysis is significantly more stringent than an arbitrary and capricious review of traditional agency decisions balancing multiple usage. The Courts have clearly stated the significance of economic benefits in planning as follows:

“Misleading economic assumptions can defeat the first function of an EIS by impairing the agency’s consideration of the adverse environmental effects of a proposed project. See, South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011-12 (5th Cir.1980). NEPA requires agencies to balance a project’s economic benefits against its adverse environmental effects. Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1113 (D.C.Cir.1971). “55

The Organizations submit that any position that the expansion of recreational spending to more than 7 times original estimates would not impact cultural resource balancing is exactly the type of misleading economic assumption that must be overturned.

The expansion of economic contributions and jobs from recreational activity in the GJFO planning area is significant and even more compelling when direct impacts are not summarized. The draft RMP summarizes the total recreational economic contributions to the Grand Junction planning area in 2029 as follows:

“Recreation would generate nearly $7.2 million in total spending, $4.4 million in total value added and 90 full-time equivalent jobs by 2029. Specific types of businesses in which spending occurred would be influenced by the type of recreational activities that the visitors participate in.” 56

In the FRMP significant additional information was reviewed to allow for a more accurate analysis of both local spending (Mesa and Garfield Counties) and out of region recreational spending. The FRMP provides the following analysis of recreational spending and recreational jobs from outside the planning region:

201505_table4-101.jpg57

Garfield and Mesa county based recreational spending and jobs was also specifically identified in the FRMP as follows:

201505_table4-98.jpg58

The FRMP concludes that 516 jobs are related to recreational usage of GJFO lands and more than $47.5 million in spending flows to the Colorado state economy. The Organizations would note this estimate remains significantly lower than the amount in many other research. When these amounts are totaled the change in both total spending and total recreationally related jobs is significant is staggering , as each category as expanded by almost 7 times the original estimates. While this expansion of recreational spending to 7 times its original value caused changes in many other multiple usages, cultural resource management simply did not change in terms of total number of sites to be protected or allocation of the sites to usage categories.

While the expansion of recreational economic contributions to more than 7 times original estimates caused changes in many other multiple usages, cultural resource management simply did not change in terms of total number of sites to be protected or allocation of the sites to usage categories. Every alternative in the draft and final EIS had the same management standards associated with usage categories. These usages are summarized as follows:

Use Category Mandatory closure # of sites in Draft # of sites in Final
Scientific 100m 1,574 1,574
Conservation 100m 4 4
Traditional 200m 135 135
Public usage 100m 95 95
Experimental n/a 79 79
Discharge n/a 7 7
TOTAL 1,874 1,874

After a summary of the eligibility analysis in appendix I is prepared, additional basis for concern regarding the limited range of alternatives becomes immediately apparent as 78% of sites are identified as ineligible for listing or needing data. That summary of appendix I eligibility provides the following conclusions:

Eligibility of site for Listing Draft Final
Actively on National Register 3(.1%) 3 (.1%)
Possibly eligible for listing 398 (21%) 398 (21%)
Lacking data/assessment 520 (27%) 520 (27%)
Not Eligible 966 (51%) 966 (51%)
Released from further 7 (.3%) 7 (.3%)
Total 1,894 1,894

The Organizations submit that the failure to balance multiple uses in cultural resource management is directly evidenced by the failure to change any aspect of cultural resource management after the economic contribution of recreation has expanded to more than 7 times its original estimate. Cultural resource management remained the single largest factor to be weighed in multiple usage process that caused route closures. The Organizations submit such a position directly violates the courts requirement that misleading economic assumptions must not be relied on in the NEPA process.

11b. The long term economic impacts of mandatory closures simply have not been analyzed.Under these mandatory management standards for cultural sites, the Organizations are very troubled that no routes could ever be opened in the future and any site specific projects will result in additional route closures due to the mandatory boundaries applied around cultural resource sites. These mandatory management standards will further impact future site specific work as additional sites will be found and there is simply no flexibility in the standards to allow site specific management.

11c. Long term impacts of precluding surface disturbing activities has not been analyzed .As previously addressed in this appeal, grazing is a major activity on the GJFO and research indicates that grazing of cattle is a major threat to cultural sites. Grazing of cattle is also a surface disturbing activity. As a result prohibition of cattle from cultural sites would require fencing 1,894 sites off from grazing. Many of these sites are linear construction areas which could only be fenced with long expanses of new fencing. Any location where a fence crossed a road or trail would require a cattle guard. The Organizations are completely unable to find any location in the FRMP where these types of direct economic impacts from implementation of new management standards are addressed. The Organizations submit that the failure to provide this basic balancing of economic benefits from multiple uses is a direct violation of NEPA and must be overturned under the more strict review of economic benefits applied by Courts under the denovo standard of review.

12. Lynx habitat management standards in the FRMP directly conflict with the 2013 Lynx conservation assessment and strategy.The Organizations submit that the GJFO has failed to address new management documents released for the conservation of the Canadian Lynx. These documents clearly identify that a lack of active forest management and timber harvest is a primary threat to the species and that snowmobiling and snow compaction are secondary threats and there is no need to reduce snowmobile access below current usage to address lynx management issues. The 2013 LCAS specifically states:

“Fires, insect epidemics, and some types of timber harvest cause the boreal forest to revert to early stand initiation structural stage, which is a temporary condition that does not provide dense cover and food for snow-shoe hares, nor does it provide foraging habitat for lynx. Over time, (20–30 years or so depending upon the site) trees will grow tall enough and dense enough to once again provide food and cover for snowshoe hares in winter…..Conservation measures for vegetation management (cont. on next page): Provide a mosaic that includes dense early-successional coniferous and mixed- coniferous-deciduous stands, along with a component of mature multi-story coniferous stands to produce the desired snowshoe hare density within each LAU (Plate 5.2). ”

With regard to OSV usage the 2013 LCAS specifically states :

“Consider not expanding designated over-the-snow routes or designated play areas in lynx habitat, un-less the designation serves to consolidate use. “59

While the 2013 LCAS is exceptionally clear, the GJFO instead closes all LAU to timber harvest and prohibits any OSV travel in LAUs.

“Close the following areas (approximately 239,400 acres) to wood product sales and/or harvest (not including Christmas tree harvest). (Figure 2-79, Appendix A). Additional areas may be found as unsuitable for harvest in the site specific forest/woodland management plans:… Known lynx habitat”60

In addition OSV usage in areas that are currently open are summarily closed to future OSV usage without analysis or discussion to support this position. The FRMP states:

” Research on the effect of over-snow motorized travel and snow compaction is conflicting. The Canada Lynx Conservation Assessment and Strategy (Ruediger et al. 2000) suggests that increased competition has contributed to the decline of lynx populations. As a result it was recommended in the Canada Lynx Conservation Assessment and Strategy, to which the BLM is a signatory, that federal agencies limit over-snow travel in lynx habitat. Bunnell et al. (2006) confirmed that coyotes do use compacted trails to travel in heavy snow. However, research by Kolbe found little evidence of compacted trails causing increased competition (Kolbe et. al, 2007). Alternative B and the Southern Rockies Lynx Amendment (which includes National Forest System lands adjacent to the decision area) limit the expansion of consistent snow compaction unless it serves to consolidate use and improve lynx habitat. This would provide the BLM with flexibility to monitor over-snow travel and lynx habitat and respond accordingly to limit impacts.” 61

The Organizations simply have no idea how the 2000 LCAS could remain a valid management standard when it has specifically been precluded from further usage by the 2013 LCAS. The Organizations submit that this position is arbitrary and capricious as a matter of law and a direct violation of ESA management requirements.

13. Conclusion.The Organizations submit that cultural inventory site information has been illegally withheld for the 966 sites that are found ineligible for listing on the National Register, as relevant Federal law provides this information must be fully released to the public after a funding of ineligibility. The Organizations further submit that the inventory that has been provided is facially insufficient to balance multiple uses with mandatory closures for sites that are often only identified as open camps needing data. The Organizations submit that rather than utilizing the Final EIS as an instrument for airing the issue of resource demand, the Forest Service instead shrouded the issue from public scrutiny behind the claim of administrative expertise. This expertise was incomplete at best as the decision directly conflicted with federal laws requiring release of inventory information on sites found ineligible for listing.

It is the Organizations position that the analysis of cultural resource management under NEPA is insufficient, is arbitrary and capricious as a matter of law and fails to provide the hard look at issues mandated by NEPA. Additionally the proposed management of cultural resources fails to properly balance multiple use management standards with the protection of cultural resources, as the RMP seeks to manage possible cultural sites as a trustee would manage a trust rather than as a balanced multiple use of public lands. The Organizations submit that the closure of sites created by surface disturbing activities from further surface disturbing activities simply is arbitrary and capricious.

The Organizations are submit that massive recalculations of economic contributions and jobs from recreational activity was undertaken between the draft and final GJFO RMP. For reasons that remain unclear the expansion of the economic benefits of recreation by a factor of seven was not sufficient to trigger any recalculation of the total number of cultural sites to be managed, categorization of these sites in their usage category or rebalancing of management standards associated with categories or alteration of usage at sites that are needing data or ineligible for listing. Not only is this a violation of multiple usage requirements it is a per se violation of the higher standards of review that courts apply to agency determinations on economic benefits in the NEPA process. If the expansion of recreational spending to more than 7 times original estimates is insufficient to trigger any review, the Organizations have to question what the threshold for reviewing these classifications is.

Please feel free to contact Scott Jones at 518-281-5810 or via email at scott.jones46@yahoo.com or via USPS mail at 508 Ashford Drive, Longmont, CO 80504 for copies of any documentation that is relied on in this appeal or if you should wish to discuss any of the concerns raised further.

 

Respectfully Submitted,

Scott Jones, Esq.
COHVCO/TPA Authorized Representative
CSA Vice President

D.E. Riggle
Director of Operations
Trails Preservation Alliance

Randall Miller
President
Colorado Snowmobile Association

 

Enclosures

1 See, Baltimore G& E Co v. NRDC; 462 US 87 (1983) at pg 98.

2 Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 F3d 437 at pg 442; 42 ERC 1594, 26 Envtl. L. Rep 21276.

3 See, Hughes River Supra note 2 at pg 442.

4 See, Hughes River, Supra note 2 at pg 442.

5 See, 36 CFR 800.4(d)

6 See, 40 CFR 1505.1(e)

7 See, 40 CFR 1506.6(f)

8 See, California v. Block, 690 F.2d 753, 765 (9th Circ, 1982) ; See also, Trout Unlimited v. Morton, 509 F2d 1276, 1284(9th Circ 1974).

9 See, Block at 767.

10 See, Section 1 of the National Historic Preservation Act, Pub. L. No. 89-665, as amended by Pub. L. No. 96-515 generally Title 54 of the United States Code

11 See, 54 USC 300101

12 See, 43 USC §1701

13 See, 16 USC §470kk(a)

14 See, BLM Manual 8120.1B

15 See, BLM Manual 8100. 06C

16 See, Council on Environmental Quality- Executive Office of the President and Advisory Council on Historic Preservation; NEPA and NHPA- A handbook for integrating NEPA and Section 106 (March 2013) at pg 23.

17 See, 40 CFR 1502.14

18 See, Supra note 9 at pg 16.

19 See, FRMP at pgs 2-134 to 2-136

20 See, BLM Instruction Memorandum No 2007-030; Clarification of Cultural Resource Considerations for Off Highway Vehicle (OHV) designation and travel management; Program areas: Cultural resources; Recreation; Planning ; Dated December 15, 2006 A copy of this memorandum is available here

21 See, FRMP page 2-130-

22 See, FRMP pages 2-132

23 See, DOI, BLM Northwest Colorado Greater Sage-Grouse Draft LUPA/EIS August 2013 at pg 1027

24 List of Registered Historic Places in Colorado: wikipedia.org

25 List of Registered Historic Places in Colorado: wikipedia.org

26 See, Table 4-45 at pg 4-243

27 See, Table 4-40 at pg 4-201

28 National Register of historic places

29 Preservationnation.org

30 See, 16 USC §1780f.

34 See, Public Law 90-548 §7(a).

35 See, National Park Service. 1999. Glen Canyon National Recreation Area Grazing Component and Environmental Assessment. USDI-NPS, Intermountain Region: at pg 28.

36 See, NWCO Sage Grouse RMP August 2013 at pg 95.

37 See, NWCO Sage Grouse RMP August 2103 at pg 158.

38 See, 36 CFR Part 800.4 (b)(1).

39 See, BLM NEPA Handbook 1790-1; January 2008 at pg 73.

40 See, BLM Cultural Resources Inventory Manual- Manual 8110 @ 8110.21a(5).

41 See, BLM Cultural Resources Inventory Manual- Manual 8110 @ 8110.21a

42 See, DOI BLM, Grand Junction Resource Area; Resource Management Plan and Environmental Impact Statement (November 1985) at pg 8.

43 See, BLM Cultural Resources Inventory Manual- Manual 8110 @ 8110.21a

44 See, FRMP 2-136.

45 The Colorado Wickiup Project- Volume I- Context Data Assessment and Strategic Planning ; Domingez Archelogical Research Group Inc; at pg 3.

46 Id photographic plate at pg 56.

47 Id photographic plate at pg 70.

48 Rand A. Greubel, Strategies and Methodologies for Investigating Wickiup Sites; Presented at the Colorado Council of Professional Archaeologists Annual Meeting, March 5, 2005, Grand Junction, Colorado; at pg 1.

49 See, Colorado Wickiup Project supra note 158 at pages 64-69.

50 See, Gruebel supra note 161; at pg 2.

51 Id.

52 See, Martin et al; The Colorado Wickiup Project Volume V: Test Excavation of The Ute Hunters’ Camp (5RB563) and the Documentation of Five Additional Aboriginal Wooden Feature Sites in Rio Blanco County, Colorado; September 2010 plate 7

53 National Register of Historic Places listings in Rio Blanco County, Colorado: http://en.wikipedia.org

54 See, Thomas F King; Cultural Resource Laws and Practice; 4th Edition 2013 Altamira Press at pg 138.

55 See, Hughes River Supra note 2 at pg .

56 DRMP at pg 2-247

57 See, FRMP at pg 4-478

58 See, FRMP at pg 4-479

59 See, 2013 LCAS at pg 94.

60 See, FRMP at pg 2-160.

61 See, FRMP at 4-206

Continue Reading

White Rim-Elephant Road Permit Proposal

pdficon_large.gif
April 10, 2015

National Park Service – Southeast Utah Group
Att: Planning and Compliance
2282 S. West Resource Blvd.
Moab, UT 84532

Re: White Rim-Elephant Road Permit Proposal

Dear Sirs;

Please accept this correspondence as the comments of the above noted Organizations regarding the proposed permit system on the White Rim and Elephant Hill Trails, hereinafter referred to as “the Proposal”. Prior to addressing specific comments on the Proposal, a brief summary of the Organizations is necessary to provide context for these comments. COHVCO is a grassroots advocacy organization representing the 150,000 plus registered OHVs in the State of Colorado. COHVCO is 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.

TPA is a 100 percent volunteer organization whose intention is to be a viable partner, 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 of the sport and takes the necessary action to insure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. For the purposes of these comments, COHVCO and TPA will be referred to as “the Organizations”. OHV community has been effectively proactively addressing resource issues for decades in the Moab Utah area and throughout the western United States. While these routes are outside of Colorado, they represent important riding opportunities to our members when areas in Colorado remain blocked by heavy snowfall.

Executive Summary.

The Organizations are not opposed to the education of users regarding the proper usage of NPS lands, but the Organizations are aware that the scope of educational efforts must be correct. The Organizations are not able to support the Proposal in its current form due the void in supporting documentation around the Proposal to insure the proper scope and targeting of the Proposal. There is simply too much information that has been provided in an informal manner and it has been the Organizations experience that such information is too often misunderstood or lost in translation or with passage of time. The Organizations support ongoing efforts to develop effective management of this area and educate users, but do not believe the Proposal is in a position that can be supported at this time, as it simply needs more development and clarification.

The Organizations submit that a more comprehensive review of all recreational visitation to the White Rim and Elephant Hill areas needs to be undertaken to address all phases of recreational management of these areas. This comprehensive review would include analysis and balancing of guide service visitation, rental operations and tours and overall levels of all types of publicly available recreation in the area. The Organizations submit that education of users accessing the area via permitees or guides is an important issue in resolving management of the area that simply cannot be overlooked and the Organizations are not aware of the scope of education and monitoring that would occur outside the public permit system proposed.

It has been the Organizations experience that often rental and guide based users accessing these Canyonlands routes are simply dropped by guides with little information and then unable to safely traverse the advanced and technical routes due to their novice levels of experience with equipment being rented. Too often our members have encountered large numbers of pieces of rental equipment being blindly pushed up rocky steep hills or through sand washes without a guide in sight by badly sunburned and slightly dehydrated novices that are unable to handle advanced riding conditions. This situation results in safety concerns for all users and conflict with motorized usage traversing these routes as rental users are simply in way over their heads. The Organizations submit that regulation and education of the general public will not resolve the ongoing struggles with management of recreational visitation in the area as a whole.

The Organizations believe there are educational materials already developed that could greatly facilitate the education of all users in the manner sought in the Proposal. The Organizations are aware that often particular standards are different in NPS vs BLM and USFS but the Organizations believe that the peer to peer format and methodologies of providing this information have already been proven effective and can be applied to NPS in a similar highly effective manner as “Stay the Trail” and “Tread Lightly” have already done on other public lands. As we discussed in our meeting, the Organizations would be more than willing to facilitate any discussions with “Stay the Trail” or “Tread Lightly” in order to aid in the education of users of the White Rim or Elephant Hill trails.

The Organizations wish to thank your office for the extending meeting time and candid discussions of issues that you provided to us. The Organizations would like to summarize some of the facts that we discussed in our meeting, as these are foundational to our position on the Proposal. The Organizations support the principal that the permit system would be a vehicle used for the education of users and not as a method to restrict access to these routes. The specific facts we discussed would include:

1. Permits would remain free to the public;

2. Permits would be easily accessible to the public from a wide range of sources including via electronic access;

3. Permit limitations are estimated to be twice the average current visitation and would be revisited and expanded if limitations to access resulted from the permit program;

4. If permits are not available for a particular day, applicants should be provided information on other dates or locations when permits are available;

5. The daily visitation totals for the permit program will not include overnight campers, rental units or guided trips and that these users will not count against the daily permit total;

6. Educational efforts would target all users of area and not just members of the public entering under a permit;

7. Permits would not be required on several of the roads within the White Rim and Elephant Hill system; and

8. Group size must be increased for motorcycle users to insure buddy system is available in emergency situation and high quality social experiences are preserved.

These issues, and the related position of the NPS, are highly relevant to the position being taken in these comments. The Organizations further submit that any significant restrictions in the factors above would result in direct conflict with Canyonlands Foundational Documents that require exceptional recreational access for the public to the backcountry of Canyonlands.

1. An additional comment period would be highly beneficial after public is provided more information on the proposal.

The Organizations are concerned that there is very little information available to the public regarding the purpose and need of the Proposal, which will seriously limit meaningful public input and impair the opportunity to build public support for the Proposal in the comment period. The Organizations appreciate our meeting with your office, as this meeting provided a great deal of insight on issues sought to be resolved in the Proposal and that the intent of the Proposal is to develop a consistent contact point with the public to educate them regarding NPS management and opportunities. Unfortunately, much of this information is not available to the public and it does not appear that a fact sheet will be provided with sufficient time to allow the public to become aware of the information. The Organizations must be candid with their position, the meeting we had with your office heavily influenced our position on this issue and without this meeting we would have been forced to more vigorously oppose the Proposal. The Organizations would request that an additional comment period be provided after the additional information provided in our discussion is outlined for the public to comment on.

The Organizations have been involved in many efforts on public lands to address a wide range of recreational management issues that occur on these lands. This experience has provided us with the understanding that often the agencies office staff changes in these ongoing process or projects simply take longer to implement than expected. Sometimes a change in staff can have a dramatic impact on the direction of the project if the purpose and intent of the project is not well documented. As a result, documentation of the intent and purpose of any project can be highly valuable as the project move forward. The Organizations submit that additional public documentation could effectively fill this role while insuring that public understanding of the Proposal mirrors the direction and intent of the Proposal from the agency perspective. Good documentation of the project also avoids confusion in the direction of partnerships that could be formed in the resolution of issues in the project.

The Organizations believe that providing an additional comment period after further information is provided for the public to comment will pay an additional benefit to the NPS. The Organizations are aware that over the last several years there have been several attempts to develop a permit program for these areas, which we will refer to as Pilot Programs for purposes of these comments. The Pilot Programs have met with mixed success and what the NPS has learned as part of these pilot programs would probably be highly relevant to building public support and understanding for the current proposal. This information could be used to build support for the Proposal, but without an additional comment period, this opportunity will have been lost.

2a. The routes are critical in providing exceptional recreational access to the backcountry identified as a cornerstone principal of Canyonlands in its Foundation Document.

The Organizations are aware that the backcountry roads that are the basis of the permit proposal provide a rather unique recreational experience within the National Park Service system. The general management model of the NPS is large areas of lands that are subject to minimal development, which are managed under strict air, water and sound management standards, and these areas are crossed by corridors of exceptionally high levels of usage and access to the public. This model provides unique management challenges for the NPS and opportunities for the public on these lands as they are significantly different that public lands managed by other agencies and often conflict between management standards for areas that are immediately adjacent to each other.

The Organizations believe that a review of the foundational documents for the management of the Canyonlands NP area will be highly relevant to understanding the Organizations position on the Proposal and shed light on the possible basis of concern from the public regarding the Proposal. The Organizations are concerned that a large amount of the press coverage and documentation relative to the Proposal repeatedly identify the “need for solitude” as a management priority providing the basis for the Proposal. In our meeting, this issue was simply never raised as a management concern. The Organizations would be deeply concerned regarding any attempt to expand or improve solitude opportunities as part of the Proposal, as over 90% of Canyonlands is already managed for this activity. Further expansion of solitude would almost immediately conflict with the requirements in the foundational document that the public have exceptional access to backcountry recreational opportunities.

The Organizations submit that the mission statement provided for Canyonlands National Park in their Foundation Document is highly relevant to our position on the Proposal. The Foundational Document clearly states purpose of Canyonlands is something other than preservation of resources as the Foundational Document clearly states:

“The purpose of Canyonlands National Park is to preserve striking geologic landscapes and associated ecosystems in an area encompassing the confluence of the Green and Colorado rivers possessing superlative scenic, scientific, and cultural features for the inspiration, benefit, and use of the public.” 1

Given that usage by the public of the Canyonlands area is a factor specifically provided in the Foundational Document, restrictions on the access of the public due to a permit program issue would be problematic to reconcile with inspiring use by the public. The Organizations are familiar with the traditional NPS model of large areas of undeveloped lands being crossed by basically narrow corridors of exceptionally high usage routes for public access. The Organizations submit that this traditional NPS model would be sufficient to provide for the inspiration, benefit and use of the public.

The Organizations are aware that the Canyonlands Foundational Document goes further than the traditional NPS mandate which simply identifies use by the public as a management objective. The Foundational Document specifically identifies that exceptional backcountry access for recreation is also a factor contributing to the significance of the Canyonlands area and as a result Canyonlands managers must balance two conflicting objectives in the management of the Park. The Canyonlands Foundational Document clearly address the existing road system and high levels of access to be provided as follows:

• An assemblage of roads, many associated with a history of mining and ranching activities, continue to provide visitors with exceptional recreational opportunities to access the backcountry of Canyonlands National Park. 2

The Organizations submit that the identification of “exceptional recreational opportunities to access the backcountry” as a management priority for the Canyonlands NP must be properly balanced with the need to educate users with the implementation of the Proposal. This balanced approach to management is based on the Foundational Document identification of significant reasons for the Canyonlands Park, which in relevant part provides:

“Significance statements describe the distinctive nature of the park and inform management decisions, focusing efforts on preserving and protecting the most important resources and values of the park unit.” 3

The Organizations submit that significant alteration of the criteria identified in these comments would almost immediately bring the Proposal into conflict with the Foundational Document and impair the protection of factors that contribute to the significance of the Canyonlands Park. This type of programmatic conflict must be avoided.

While 90% of Canyonlands is already managed for solitude, the two routes that are the basis of the Proposal are already identified as highly valuable in providing the exceptional backcountry recreational opportunities to the public required in the Foundational Document and providing the inspiration and benefit to the public from the Park. The NPS description of the White Rim Road is as follows:

“The 100 mile White Rim Road loops around and below the island mesa top and provides expansive views of the surrounding area. Trips usually take two to three days by four-wheel drive vehicle or three to four days by mountain bike.”4

The NPS description of the Elephant Hill Road is as follows:

“One of the most technical four-wheel-drive roads in Utah, Elephant Hill presents drivers and mountain bikers with steep grades, loose rock, stair-step drops, tight turns and tricky backing. Once over the hill, equally challenging roads lead to various features as well as BLM lands to the south of the park. No water is available at the campsites, but vault toilets are provided at all camping areas except New Bates Wilson. Groups camping at New Bates Wilson must bring their own Toilet.” 5

The Organizations submit that the NPS has already identified the critical role that both the Elephant Hill and White Rim routes fill in providing exceptional access to backcountry recreational opportunities identified as a management priority in the Foundational Documents. The Organizations must note that the only management concern that is identified to be maintained as exceptional is the public access to backcountry recreational opportunities. Solitude and wilderness are to be protected in this management process but this level of protection is simply never identified as maintaining exceptional solitude or exceptional wilderness. The Organizations would be opposed to any impairment of this exceptional recreational access to the back county provided by the routes that are the basis of the permit proposal.

2b. Expansion of solitude opportunities as part of the Proposal would not be supported by the Organizations as this conflicts with Foundational Documents for Canyonlands.

The Organizations feel compelled to address the possible expansion of solitude opportunities as part of the Proposal, as much of the press coverage and documentation from the NPS regarding the Proposal raise this issue. While the solitude issue is raised in press and supporting documents, this issue never was addressed in our meeting despite the long and wide ranging candid discussion that was provided. As noted, the Organizations would be opposed to the Proposal if the intent was to improve and protect solitude on a larger scale in Canyonlands.

The Organizations note that the first place that solitude and wilderness issues are raised in relation to the Proposal are in the purpose and need portions of the Canyonlands webpage. While only the purpose and need document is addressed in these comments, similar sentiments have been identified in various non-agency documents. 6 It is the Organizations position that the purpose and need document is unnecessarily narrow and interpreted in a manner that fails to accurately reflect the full scope and purpose of the Canyonlands Foundational Document. Per the Proposal purpose and need webpage, solitude and wilderness issues are involved as follows:

“Almost 90% of Canyonlands National Park is managed as back-country, including a system of historic roads that provides visitors with unique recreational opportunities in a remote national park setting. In the parks Foundation Document (2013), Canyonlands is characterized as “primarily a back-country park with limited accessibility,” and “remote wildness and solitude” were identified as two of the parks fundamental values. Preservation of these fundamental values is critical to achieving the parks purpose and maintaining the parks significance.” 7

As almost 90% of Canyonlands NP more than 337,000 acres is already managed for solitude and wilderness, the Organizations are opposed to any efforts in the Proposal that would expand this management, as such an expansion of restrictive management standards would be contrary to the Foundational Documents for the Park. These factors have already been more than adequately provided for in management.

The Organizations must also vigorously assert that while wilderness and solitude are identified as factors to be managed for in Canyonlands NP, at no point are these factors placed above any others in the Foundational Document. The Organizations would note that the only factor where heightened protection is provided for in the Foundational Document is the assemblage of roads, many associated with a history of mining and ranching activities, continue to provide visitors with exceptional recreational opportunities to access the backcountry of Canyonlands National Park. Again an application of the Proposal in a restrictive manner would not reflect the true prioritization of usages provided in the Foundational Document and be opposed by the Organizations.

The Organizations also believe that a comparison of protection of solitude and wilderness being provided by current Canyonlands management to the Wilderness Act of 1964 and areas being managed under this act are highly relevant to the Organizations concerns on possible restrictive application of the Proposal. The Organizations are aware that NPS protection of wilderness and Congressionally protected Wilderness areas are technically different, the Organizations believe these comparisons remain highly relevant to our concerns. The Organizations believe that identification of the 5,000 acre standard in the Wilderness act as the minimum amount that which is necessary to provide solitude is highly relevant to the Organizations concerns regarding a restrictive application of the Proposal. Any position that the 304,161 acres currently managed in Canyonlands for wilderness and solitude was not providing these opportunities would be difficult to reconcile with the Wilderness Act conclusions that 5,000 acre areas are sufficient to provide high quality solitude and wilderness opportunities for these factors and users seeking this type of opportunity.

The Organizations also believe that comparison of the 304,161 acres currently managed for wilderness and solitude in the Canyonlands NP to Congressionally designated Wilderness areas is also highly relevant to our concerns. Protection of 304,161 acres would place Canyonlands NP at 58th in total acreages protected on list of 762 Wilderness areas that have been designated by Congress. 8 The Organizations submit that the placement of Canyonlands NP in the top 7% of the list of Congressionally designated Wilderness areas provides a strong factual argument that these interests have been adequately protected in the Canyonlands management process. Again, the Organizations submit that such high levels of protection for wilderness and solitude already being in place weigh heavily against any more restrictions to public access that could result from an over restrictive implementation of a permit process.

2c. Permits must remain free.

The possibility of imposition of a fee at some point in the future in order to obtain a permit to use Elephant Hill or White Rim Trails would be opposed by the Organizations. It is the Organizations position that paying the entrance fee for the park should provide full access to opportunities in the park. The Organizations are aware that there are proposals to increase access fees to all the parks within the planning region. Some of these fee increases are significant. Given that fees are already proposed to be increased for entrance to the park, the Organizations submit this fee should be sufficient to cover any administrative overhead for the free permit program. While the Organizations are aware that federal funding for the operation of NPS facilities continues to decline, the Organizations vigorously assert that the resolution of this issue lies with the Congressional budgeting process and not with additional fees to users.

The Organizations further submit that compliance with FLREA requirements of any fee based permit program for the access to the White Rim and Elephant Hill Trails would be difficult, if not impossible due to limitations on development in the Foundational Documents and minimum service levels required by FLREA. The Organizations further submit that even if FLREA compliance could be developed, administration of this program would be difficult and expensive and would result in a serious limitation on any funding streams that could be developed for management of these routes.

The Organizations are also aware that the imposition of any fee for permits would result in a serious limitation on development of volunteer partnerships for the management and maintenance of the routes that are the basis of the Proposal. The Organizations are aware that often volunteer support for the management of areas can be developed that far exceeds any monetary benefits from a pay to play modeled permit for a particular area. Once there is a fee in place, the public simply assumed the funding is sufficient to maintain the area is now available and that partnerships are no longer necessary. Often this is simply not the case and weighs heavily against imposition of a fee.

2d. Permits must be easy to get and available from a wide range of facilities

In our meeting, the relationship of the level of permits proposed to be available to visitation to the routes was a major point of discussion. Prior to the meeting, this relationship was a major concern for the Organizations. Based on our discussions you believe that the levels of permits available to users of these routes is approximately twice the levels of the public visitation to the areas. The Organizations believe this is an issue where visitation estimates from previous pilot programs would have been highly relevant to the Organizations ability to create meaningful comments on the current Proposal. The Organizations welcomed our discussion on the fact that the permits would not be used as a limitation on visitation and the Organizations believe that this position must be clearly stated in any guidance documents that are prepared relative to implementation of a permit program.

The Organizations further submit that a periodic review process to compare levels of public visitation to the permit routes and the levels of permits provided must be created in order to avoid future restrictions on access to the routes. Without mandatory periodic reviews of permit levels, access could be restricted simply due to NPS staff being directed towards other issues or projects and such a periodic review not being mandated in the permit proposal. The Organizations further submit that these periodic reviews should include representatives from all the user groups impacted by the permit process, including the public and permitees.

While the Organizations are not opposed to redistribution of users away from peak visitation days, the Organizations are opposed to a systemic reduction in the opportunity to utilize these unique opportunities. Such a restriction on the routes in question would directly contradict one of the Foundational Documents management priorities for Canyonlands mainly “exceptional recreational opportunities to access the backcountry”. The Organizations submit that clarification of the intent to avoid major limitations on access would allow the public to more fully understand the educational intent of the program. The more information that can be provided to support this position would build public support for the program over time.

3. Purely educational programs should be explored as an alternative to the permit proposal.

Throughout our discussion with your office, the need to institute the permit program in order to expand educational opportunities for those using these Canyonlands Park areas was repeatedly stated. The Organizations are intimately aware that educational efforts can be highly effective in protecting resources and providing recreational opportunities if they are properly targeted . The Organizations vigorously assert that most recreational users will follow the rules, if they know what the rules are. If they are not aware of rules, violations can be an issue. Given the significantly different standards for recreation on NPS lands in comparison to BLM and USFS lands, the Organizations believe this may be an issue on the usage of the routes that are the basis of the Proposal.

The Organizations believe a comparison of the basic levels of training that must be provided as part of a guided Whitewater rafting trip are highly relevant to our discussion and position. While the challenges are different between rafting and route usage in Canyonlands are different, the scope of education should be similar. Both these activities provide a physically demanding recreational experience in the backcountry. The Organizations understand that very minimal training is provided to those renting equipment for accessing the routes in Canyonlands as part of the rental experience. This lack of training is contrasted with rafting guide training as the public is provided swift water safety training and paddling guidance. This training is often tailored to the level of whitewater rafting that is being experienced, and the higher the class of rapids being traversed the more training is provided to the public.

After further thought on this issue, the Organizations would like to explore the possibility of a purely educational program as a possible alternative to the permit system. It has been the Organizations experience that even effective permit systems are expensive to operate and given the ever reducing federal funding for all public lands management, the Organizations believe the reduced overhead of a purely educational program should be explored as a more cost effective manner to educate users. This purely educational program would remove possible expansion of costs that would be incurred with implementation of the permit program and allow limited management resources to be more effectively applied for the benefit of the public. The Organizations are aware that even the most effective permit program can create significant overhead, which would place additional stress on limited agency funding and the commitment that the permits remain free to the public to obtain. This situation would be avoided with a purely educational program.

4. No data from pilot programs is provided to support the Proposal.

The Organizations have reviewed the basic information on pilot program efforts which sought to provide a free permit program for Elephant Hill and White Rim trails in 2011. These efforts clearly have created some level of information regarding visitation to the routes and clearly there was a public response to the proposed group size limits and permit process generally in 2011. The Organizations believe that this information would be highly relevant to development of meaningful public input on the Proposal. The Organizations further assert that these pilot programs provided learning opportunities for the agencies and users, as the Organizations must believe there were unexpected issues that became hurdles to the pilot program. The Organizations believe a discussion of these hurdles to the pilot and how they were resolved would be highly relevant to public understanding and insuring that these hurdles were resolved in the development of a permit program in the future. This is simply information that can only be obtained from the NPS and remains highly relevant to discussions in the Proposal.

5a. Group sizes should be larger for motorcycle usage.

The Organizations submit that group sizes on each of the trail must be larger for those choosing to access these routes with a motorcycle as these are very remote areas and often cell phone service is not available on significant portions of the trail. While 3 vehicles may provide adequate safety for users in terms of full size motor vehicles, this basic safety is not present on motorcycles. Often individual motorcycle riders are limited in their ability to carry emergency response gear, and as a result each rider carries what they are able to safely transport and the total equipment is balanced across the group (ie: one rider carries food, another rider carries camping gear and a third carries tools to repair the bikes and emergency gear). The Organizations submit that small groups simply cannot insure that basic equipment would be available in an emergency situation if the group were forced to divide the group into smaller groups in order to deal with a situation. This type of planning is important to the motorcycle community given the length and remoteness of these routes and limited cell phone coverage in portions of the routes.

If there is an injury or other issue in a group of only three motorcycle riders, the 3 rider limitation would force one rider to abandon the “buddy system” or the principal of not riding alone, which is a cornerstone of safe motorcycle usage in the backcountry. The Organizations submit that the buddy system provides a significant safety benefit to all users. If there is a limitation of three motorcycles per group either the rider that is injured or staying with broken down equipment will be violating the buddy rule. If one rider stays with the injured rider or two riders stay with the broken down equipment then the person traveling to obtain assistance will be violating the buddy system. Given the remote nature of these routes it could be several hours until help for an injured rider arrived on the accident scene or riders realized that the lone rider that left the group to obtain emergency assistance did not get to his destination. This lost time could be critical in the event of a serious injury. The Organizations submit that basic safety for users of motorcycles requires expansion of the permit levels to at least 6 riders per group makes more sense. Traditional full size users will simply never have to face this issue as each vehicle normally has more than two occupants and can simply transport far more supplies that could be used in an emergency situation.

The Organizations are also concerned regarding the impact that a 3 rider per group limitation would have on the quality of the social component of recreation for motorcycle users. The social interaction of rider is a large component of recreation on public lands. While a rider group of 3 does allow for some social interaction, a larger group simply improves this experience. The Organizations believe that the inferior social component of recreational usage to motorcycles from the permit proposal is evident when compared to the group size provided for other users groups. The average full size vehicle has 2.5 people per vehicle and as a result full size users can have a group of up to 7.5 people on average, and mountain bikers can have up to 15 riders. There can be no factual based argument made that similar quality of social experiences can be provided with such a disparate group size.

The Organizations are also concerned that there is a large disparity in the per group visitation limits for motorcycles (3) in comparison to bicycles (15). The Organizations are unable to find any information regarding the basis for these very different group size restrictions, which seriously complicates our ability to meaningfully comment on this issue. It is the Organizations position that many of the management issues faced on the routes, such as safety in passing other users, would result in group levels for motorcycles being more closely related to bicycle group size than a full size motor vehicle. The Organizations would note that the 15 person bicycle limitation avoids any issues with the buddy system being violated if there is an injury.

5b. The NPS experiences with managing snowmobiles in Yellowstone supports larger user group size for motorcycle users in Canyonlands.

The Organizations believe that experiences of the NPS regarding the management of snowmobiles in Yellowstone National Park is highly relevant to the Organizations concerns on the small group size for motorcycles. Yellowstone NP has established a maximum group size of 5 snowmobiles per group. 9 The NPS has also started managing what they refer to as “sound events” in Yellowstone NP for winter users as they have found that impacts of sound are often not related to the number of vehicles passing another group or a particular volume level but more related to interference with other user groups is achieving goals sought in their recreational endeavors. The Organizations are aware that Yellowstone has several years of research to support their conclusions, and this information is not discussed in more detail in the hope of providing directly relevant comments. The Organizations would be more than willing to discuss this research with your office if that discussion was desired.

This information is highly relevant to Canyonlands NP as Yellowstone NP is managed under similar broad NPS guidelines for Park management including air and resource protection and larger groups are permitted in Yellowstone even without the Canyonlands Foundational Document requirement that exceptional recreational opportunities to access the backcountry are provided to the public.

6. Conclusion.

The Organizations are not opposed to the education of users regarding the proper usage of NPS lands, but the Organizations are aware that the scope of educational efforts must be correct. The Organizations are not able to support the Proposal in its current form due the void in supporting documentation around the Proposal to insure the proper scope and targeting of the Proposal. There is simply too much information that has been provided in an informal manner and it has been the Organizations experience that such information is too often misunderstood or lost in translation or with passage of time. The Organizations support ongoing efforts to develop effective management of this area and educate users, but do not believe the Proposal is in a position that can be supported at this time, as it simply needs more development and clarification.

The Organizations submit that a more comprehensive review of all recreational visitation to the White Rim and Elephant Hill areas needs to be undertaken to address all phases of recreational management of these areas. This comprehensive review would include analysis and balancing of guide service visitation, rental operations and tours and overall levels of all types of publicly available recreation in the area. The Organizations submit that education of users accessing the area via permitees or guides is an important issue in resolving management of the area that simply cannot be overlooked and the Organizations are not aware of the scope of education and monitoring that would occur outside the public permit system proposed.

The Organizations support the principal that the permit system would be a vehicle used for the education of users and not as a method to restrict access to these routes. The specific facts on the permit system we believe to be foundational would include:

1. Permits would remain free to the public;

2. Permits would be easily accessible to the public from a wide range of sources including via electronic access;

3. Permit limitations are estimated to be twice the average current visitation and would be revisited and expanded if limitations to access resulted from the permit program;

4. If permits are not available for a particular day, applicants should be provided information on other dates or locations when permits are available;

5. The daily visitation totals for the permit program will not include overnight campers, rental units or guided trips and that these users will not count against the daily permit total;

6. Educational efforts would target all users of area and not just members of the public entering under a permit;

7. Permits would not be required on several of the roads within the White Rim and Elephant Hill system; and

8. Group size must be increased for motorcycle users to insure buddy system is available in emergency situation and high quality social experiences are preserved.

These issues, and the related position of the NPS, are highly relevant to the position being taken in these comments. The Organizations further submit that any significant restrictions in the factors above would result in direct conflict with Canyonlands Foundational Documents that require exceptional recreational access for the public to the backcountry of Canyonlands.

If you have questions please feel free to contact: Scott Jones, Esq., 508 Ashford Drive, Longmont CO 80504. His phone is (518)281-5810 and email is scott.jones46@yahoo.com.

Sincerely,Scott Jones, Esq.
COHVCO
Authorized Representat
ive

D.E. Riggle
Director of Operations
Trails Preservation Alliance

 

1 See, Canyonlands Foundation Document at pg 1.

2 See, Canyonlands Foundation Document at pg 1.

3 See, Canyonlands Foundation Document at pg 1.

4 http://www.nps.gov/cany/planyourvisit/whiterimroad.htm

5 http://www.nps.gov/cany/planyourvisit/needlesroads.htm

6 See, Eric Trenbearth; NPS proposes permit system for White Rim and Elephant Hill; Moab Sun Times; March 26, 2015 available at http://www.moabsunnews.com/news/article_3110401c-d3cb-11e4-9477-878fc6fa1139.html

7 http://parkplanning.nps.gov

8 See, http://www.wilderness.net/NWPS/advSearch

9 See, DEPARTMENT OF THE INTERIOR, National Park Service; Special Regulations; Areas of the National Park System; Yellowstone National Park; Winter Use; Federal Register / Vol. 78, No. 73 / Tuesday, April 16, 2013 / Proposed Rules at pg 22470.

Continue Reading