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May 16, 2011
 

May 16, 2011

Forest Service Planning DEIS
C/O Bear West Company
132 E. 500 S
Bountiful, UT   84010

Dear Planning Team:

Thank you for the opportunity to comment on the proposed rule making for 36 CFR Part 219, The proposed National Forest System Land Management Planning regulations and DEIS.  This is a combined response from the Colorado Off-Highway Vehicle Coalition (COHVCO) and the Trails Preservation Alliance (TPA).

The Colorado Off-highway Vehicle Coalition (COHVCO), represents nearly 200,000 Coloradoans, and thousands of visitors from outside Colorado, who enjoy recreating on our public lands with off highway vehicles.  COHVCO is a volunteer based non-profit conservation organization that has focused on preserving and enhancing the opportunities of all OHV users in Colorado since 1987.  We represent Motorcycle, 4WD, ATV & Snowmobile enthusiasts.  COHVCO, its participating clubs, and enthusiasts provide not only thousands of volunteer hours, but contribute over $3 million each year to public lands for maintenance, trail repair, signage and other needed public facilities associated with road and trail use through Colorado’s OHV Registration Program

The Trails Preservation Alliance, TPA is focused on preserving motorized, single-track trail riding.  All forms of OHV recreation, ATV’s, 4WD’s, snowmobiles, are supported by the TPA.   However, its primary goal is to preserve single-track trail riding.  The 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 for motorized recreation and will take the necessary action to insure that the USFS and BLM allocate to motorized recreation a fair and equitable percentage of access to public lands.

Summary Statement

Our shared goal is to help establish planning principles and content under of the Multiple Use-Sustained Yield Act of 1960 (MUSYA) and the 1976 National Forest Management Act (NFMA), in order to develop and revise plans of the National Forest System in a timely and efficient manner.  The National Forest Management Act of 1976 was originally met with a great deal of anticipation for producing predictable integrated, long-range Forest management plans that were sustainable and met the needs of the diversity of American communities and their visitors.
 
The Summary document (page 5) states that the Agency has a 30-year history with land management planning.  We think this comment is well understated based on a proud 106 year old Agency who has always been responsive to changing community and resource issues and needs. Communities and resources have been served with reasonably designed planning processes and appropriately applied and adapted science since 1905.  Dedicated natural resources managers, adaptive science, and planning processes were applied well before 1976.
 
We are delighted to see recreation being listed as a legitimate, sustainable multiple-use on National Forests System lands.  However, we are deeply concerned about the statement and positioning of the planning process to “bind” requirements for ecological sustainability, and consider other uses as just contributions to social and economic sustainability.  This sets up a possible situation where human use and dependency to meet social needs and benefits on NFS lands are subservient to ecological sustainability.  This might allow the decision maker no discretion to adopt innovative human use alternatives. We feel that decision makers need the latitude to make choices that might feature human and community social and economic needs, while still providing for sustainable ecological systems and services.  

Recreation and other uses in the proposed planning regulations as written appear to be the first to be traded-off or mitigated in light of any changed ecological condition.  In order to get to this point you have to reduce the importance of the sustainability of human needs and their associated sciences, and then differentiate them from ecological sustainability and its associated sciences. We feel strongly that any planning process and the decisions regarding sustainability of all systems (social, economic, ecological) be equally available to planning teams and decision makers to develop the best possible set of alternatives.

We are particularly concerned about the future of motorized use. There has been a track record of the continued loss of motorized recreation opportunity outside of the planning process. This continued loss of opportunity has resulted, in part, from uncoordinated planning processes and the lack of effective monitoring programs to document change across unit boundaries. 

The promise of the NFMA was to have an integrated, interdisciplinary process that was transparent to and included the public input.  Decisions for long-term resources production and services were commitments made to insure community needs.  Expectations were established.  However, it seemed every time a political condition changed, an administration changed, or a new congressional initiative evolved (i.e. endangered species, new wilderness, roadless initiatives, new parks and monuments were ordered), decisions and policy evolved outside of the NFMA process.  The results have been that many selected, promised and planned motorized transportation facilities, access points and systems were eliminated from the motorized road and trail system inventory of opportunities that were committed to in the NFMA promise.

It has been extremely disappointing and extraordinarily costly since 1976 to have been involved in all of the appeals, suits, court cases, rule rewrites, suspended planning, issues and debates over an otherwise reasonably well developed NFMA planning process. We still have great anxiety about any of the proposed alternatives really solving the complex set of competing demands on public land, and the need by some to delay natural resources decision making.  The associated public land politics and pressures from widely divergent special interest groups may continue to override collaborative planning processes.  However, we standby to support the multiple-use role of National Forest System lands, and will help defend that role against any intent towards more restrictive access to the great legacy of NFS public lands. 

Concerns and Recommendations

Our comments, concerns, and recommendations are based on the following set of planning process objectives:

1.  That the selection of a planning alternative recognizes the need for a standardized unit-by-unit process for inventorying recreation facilities, settings, opportunities, activities and benefits across the full spectrum of needs and users.

2.  That the selection of  the planning process include and value the historic and unique uses of individual planning units and not just new trends in uses.
  
3.  That the definition of a “vibrant” community include the concept of a community of users who live and work outside of the unit plan area and who are dependent on  sustainable and long-term, predictable access to public lands nation-wide.

4.  That the planning process chosen is not so complex, expensive and time consuming that it practically eliminates participation by individual users and small local clubs because of costs to participate. 

5.  That the assessment and monitoring processes will allow the acceptance of data, based on approved sampling techniques, filed by forest users and volunteers.

6.  That the definitions of social sustainability and economic sustainability be added to the glossary of new planning terminology in order to avoid continued ambiguity over their application to the planning process.  Sustainability needs to include the elements of creative public-private partnership, volunteers and shared resources of communities and dependent users to help insure sustainable facilities and programs.

7.  That there be a monitoring and reporting process in place that tracks the loss of historic recreation use opportunities across regional landscapes, just as there is a need to track sensitive and endangered species and habitat losses.

8.  That the selected alternative for any new planning process eliminate the need for overlapping planning processes like, transportation system planning that re-allocates recreation opportunities for motorized and non-motorized recreation, stand alone wilderness and roadless studies, recreation niche decisions, project level decisions that change forest plan balance among the various recreation users, and special interest area studies.  

9.  That all applicable sciences and research be applied in equitable and balance manners to planning and analysis processes.  This includes the social and economic sciences.  Further, that the concept of “best available science” be more clearly defined to avoid legal challenges.
   
Concerns and Recommendations

1.  Social and economic sustainability and an appropriate planning process has still not been defined by the Forest Service.  Benefits-based management (BBM) recreation and its associated social sciences have not been included or referenced or cited to the same extent as the biological sciences. Nor, has a standard inventorying and assessment process like the Recreation Opportunity Spectrum (ROS) been established to get standardized information and monitoring results between planning units.   This leaves the appearance of placing a higher regard for the ecological sciences and their planning processes. This suggests a focus on preservation alternatives and a move away from conservation management alternatives in order to achieve ecological sustainability.

The planning issue of providing for “vibrant local economies” (Secretary Vilsack, page 2, DEIS)  and USFS Summary statement (page 3) “sustainable use…to support vibrant communities”  are introduced, new terminologies that lack  standardized planning approaches and definitions.  This sets up a continued concern for the stated position of just “contributing” to social and economic sustainability, rather than taking a responsibility for providing a predictable source of recreation of opportunities for effective community planning.  It further sets up a pre-decisional bias that does not allow the plan decision maker to examine a full range of alternatives that might need to include a binding set of  sustainable resource supply or social and economic services.
  
Recommendations:  Establish ROS and BBM as planning process requirements to order to achieve better public communications of opportunities and impacts between alternatives in a unit plan.  Further, reconsider the language of “binding” requirements for ecological sustainability, and “contribution” requirements for community social and economic sustainability.  Let the plans commit to all sustainability elements as national forests and grassland and the Department of Agriculture need to develop affirmative programs to provide for quality habitats, both human and ecological. 

2.  There appears to be conflicting set of planning objectives about collaborative processes and levels of decisions.  Section 219.4 sets up assurances that the Forest Service provide meaningful opportunities for the public to participate early in the planning process.  Provisions are made for consensus building, federal advisory committees to be inclusive of a diverse set of people and communities in the planning process.  Then, after some discussion about the importance of the sustainable social and economic needs of communities, the proposed rule at 219.4, page 28 says, “Requiring land management plans to be consistent with local government plans, would not allow the flexibility needed to address the diverse management needs on NFS lands and hamper the Agency’s ability to address regional and national interests…”.  

This portrays a double set of standards.  There is the impression that national forest and grasslands will work to provide economic stability for dependent local communities, and then pull back away to support national and regional needs not committing to or giving priority to local government plans. 

Recommendations:  If maintaining historic rural communities are to remain a priority focus for the Department of Agriculture, the Forest Service planning process needs to be give a stronger commitment to local government plans and be willing to mitigate some national and regional needs as appropriate. If forest supervisors are expected to help integrate community needs, restrictive language on local planning commitment needs to be lifted and changed.

3.  We support the two-tiered monitoring plan concept of the proposed planning regulations.  However, we are unsure about how unit-level planning “would be informed by the assessment phase”, and how the associated broad-scale monitoring can take place with the loss of regional guidelines and with no stated regional goals or objectives.  This is exactly how regional and national motorized opportunities have been lost because there was no monitoring program in place at any level to watch for the cumulative effects of uncoordinated and incremental local non-motorized decision making at the forest project level.

Recommendations:
Select a two-tiered monitoring program, but associate the assessment process more clearly.

Include the opportunity for the public and user groups to assist gathering and submitting data.

Re-institute regional guides and standards for trail system balance goals between motorized and non-motorized uses in order to have established objective amounts to be able to conduct broad-scale monitoring against.  Recreation use demands have “landscape scale” and regional scale impacts that will go unidentified at just the project or unit level.

The proposed regulations at 219.2 page 20 suggests a role for Regional Office oversight to provide consistency of planning interpretation and implementation on units within the region.  We believe this role should include the establishment of regional targets or objectives to help guide alternative development at the unit planning level.

Sec. 219.6 Assessments guidance needs to highlight the need for the Forest Service to also review and evaluate all other and separate planning decisions, i.e. roadless area policy, transportation planning decisions, in order to determine consistency with the forest plan and monitoring results. The Assessments process should also be linked to the Forest Service system of integrated management reviews to assess performance in implementation of plan priorities.      

4.  The proposed planning alternative has an incredible amount of new process associated with species viability, species of conservation concern, and candidate species especially with the inclusion of “native invertebrates”.  The level of assessments required in the wildlife area and the amount of science cited overwhelms the amount of analysis and science cited for social and economic sustainability assessments.

Recommendations:  Take a “second look” at the availability of science and its balanced application for all of the elements involved in determining ecological, social and economic sustainability.  The recent response and finding by the team of science reviewers on this draft should be extremely valuable to guide reconsideration to balance science applications between resources.

5.   The Multiple Use planning direction of proposed 219.10 is generally complete and suggests not only the original uses, but an updated set of values and policy direction for the multiple uses. 

Recommendations:   

We want to assure that under 219.10 (a)(1) that the responsible official also consider not just recreation values and settings, but historic recreation use patterns and points of access and not just new trends.

Under 219.10(b)(i) Sustainable recreation needs to be defined  as including the predictability of opportunities, programs and facilities over time in order to satisfy the social sustainability requirements and needs of vibrant communities. Field units have thought that sustainability only applies to their ability to fund maintenance from appropriated funds, and does not apply to providing a continued supply of opportunities to meet personal/social need objectives.  The continued drift to non-motorized recreation and conflict is a classic example of this misunderstanding and misapplication of socially sustainability for all users.

6.  The discussion on page 60 under the discussion about 219.10 Multiple Uses requires the planners to take into account reasonably foreseeable risks.  Among those risks listed is the category “human-induced stressors” on the units resources.  Outdoor recreation is a human-based resource within a human environment under the Multiple Use Sustained Yield Act.  The discussions and planning requirements throughout the proposed document tend to make recreation use secondary to and trumped by all other resources.  There is a case that can be made that other resource decisions including wildlife can be stressors on the human environment.

Recommendations:

Change the style of multiple-use management and risk assessments to avoid a hierarchical ordering of resources, and remain with the concept that all resources interact with each other in a system of stressful ways, both positively and negatively.  The entire document needs to be edited to avoid statements that bias human use and recreation as stressors, as this is not fair to a balanced, sustainable social-economic-ecological planning process.

We are supportive of Alternative A , subject to our recommendations, as it clarifies and requires collaborative planning, pre-decisional opportunities for input, a broad-landscape approach to monitoring and a higher level of social/economic analysis for sustainability of committees dependent on public land resources.

We are appreciative of the effort the Forest Service has taken to try and correct and update the current planning process.  While it is more complex and will be more costly, we hope it will move the process along so unit plans can be brought up to date and amended in more timely and responsive ways.

Sincerely, 

/s/ Jerry Abboud, Executive Director       
Colorado Off-Highway Vehicle Coalition   
13670 Cherry Way               
Thornton, CO  80602   

/s/Don Riggle, Director of Operations
Trails Preservation Alliance
725 Palomar Lane
Colorado Springs, CO  80906-1086

April 25, 2011
 

DENVER, CO – A coalition of recreational access groups recently filed papers to join a lawsuit challenging motorized vehicle access to the Pike and San Isabel National Forests in southcentral Colorado. The Colorado Off-Highway Vehicle Coalition (COHVCO), Trails Preservation Alliance (TPA), and BlueRibbon Coalition (BRC) moved on April 21st to intervene as parties in the case, which was brought by preservationist interests led by The Wilderness Society. The suit claims that the Forest Service illegally authorized motorized travel to at least some trails in the Forests.

This lawsuit comes in the broader context of travel planning throughout the National Forest System. In 2005, the agency promulgated a nationwide rule requiring designation of roads, trails and areas for motorized access. The resulting agency decisions have spawned lawsuits in Montana, California, Idaho, Oregon, North Carolina and elsewhere. Trail-based recreation interests have frequently participated in those actions.

“Our groups have long championed effective recreation management,” said John Bongiovanni, a COHVCO Director. “We are far from satisfied with the outcomes on these Forests. It is the motorized recreation community who apparently shoulders the burden of defending trails long used by all. It is essential our role continue when preservationists move the dialogue behind courtroom doors,” Bongiovanni concluded.
 

Contact: Paul Turcke 208-331-1800

COHVCO is a nonprofit organization whose member enthusiasts, organizations and businesses collectively comprise over 200,000 Coloradoans and regular visitors to Colorado and other western states who contribute millions of dollars and thousands of hours annually to off-highway vehicle recreation through registration fees, retail expenditure, project participation and related support. www.cohvco.org

The Trails Preservation Alliance is a nonprofit organization dedicated to protecting 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. www.coloradotpa.org

The BlueRibbon Coalition is a national recreation group that champions responsible recreation, and encourages individual environmental stewardship. With members in all 50 states, BRC is focused on building enthusiast involvement with organizational efforts through membership, outreach, education, and collaboration among recreationists. 1-800-BlueRib – www.sharetrails.org

March 16, 2011
 

Tell BLM Director Abbey you oppose the new Wild Lands policy today!
 
On March 16, the American Motorcyclist Association (AMA), All-Terrain Vehicle Association (ATVA), Trails Preservation Alliance (TPA), Utah Shared Access Alliance (USA-ALL), Colorado Off Highway Vehicle Coalition (COHVCO), AMA-District 36, AMA-District 37 Off-Road Division and California Off-Road Vehicle Association (CORVA) sent a letter to the Bureau of Land Management (BLM) Director Bob Abbey opposing the new Wild Lands land-use designation policy. The letter expresses concerns about the definition of Wild Lands, designations, and implementation plans, as it relates to Secretarial Order 3310. Additionally, the letter seeks to clarify indications that Abbey believes there is no grass-roots opposition to the Wild Lands designation. This new order may affect off-highway vehicle (OHV) enthusiasts’ ability to enjoy the public lands responsibly with their families and friends.

To read the rest of this action alert click here.

March 16, 2011
 

The Honorable Bob Abbey
Director
Bureau of Land Management
U.S. Department of the Interior
1849 C Street NW, Rm 5665
Washington, DC 20240

Dear Director Abbey:

As associations who represent the interests of millions of responsible motorized recreation enthusiasts, we oppose the new Bureau of Land Management’s (BLM) Wild Lands policy. We have questions concerning the definition of Wild Lands, designations , and implementation plans, as they relate to motorized recreation within Secretarial Order 3310. Moreover, we seek to clarify indications that you believe there is no grass-roots opposition to this order.  We, the undersigned, believe this new designation may severely restrict the ability of our members to responsibly recreate nonpublic lands managed by the BLM.

According to a Department of the Interior (DOI) press release, dated December 23, 2010, “Secretarial Order 3310 directs the Bureau of Land Management (BLM), based on the input of the public and local communities through its existing land management planning process, to designate appropriate areas with wilderness characteristics under its jurisdiction as “Wild Lands” and to manage them to protect their wilderness values”

While the DOI release states that the new designation is intended to protect the wilderness values of certain lands, many of our members remain concerned that this new label may lead to confusion among users on the differences between Wilderness, Wilderness Study Areas (WSAs) and Wild Lands.

We seek answers to the following questions as they relate to responsible motorized recreation:

• What is the BLM’s definition of the Wild Lands term, and how does it differ from Wilderness and WSAs?
• Will a Wild Lands designation be managed with the same restrictions granted Wilderness until such a designation can officially be made by Congress?
• Will the new designation require approval by Congress, congressional delegations or governors of affected states?
• Will the agency work with local authorities and user groups to preserve established uses, including responsible motorized reaction routes, prior to any designations? And if so, to what extent?
• How long will designated lands be managed as wild Lands before they are either granted full Wilderness status or de-listed and released to the public?
• Will the newly created Wild Lands designation conform to the tenants of the 1964 Wilderness Act?
• What is the BLM’s detailed plan to determine the eligibility of lands to be designated Wild Lands? In addition to the plan, what is the process?
• Does the BLM have specific areas under review where it will apply this new policy and, if so, where are they?
• When does the BLM plan to begin implementation of the Wild Lands policy?
• What statutory authority does the agency cite that allows the Wild Lands designation to be a priority above other multiple-uses of BLM lands?

Furthermore, we seek to clarify indications that you believe there is no grass-roots opposition to the Wild Lands designation. A Denver Post article (enclosed) entitled “Western Republicans dicy Obama wilderness policy”, states:

In an interview, Abbey said planning has already begun, and designation of the first wild lands could occur as soon as this summer in Idaho, Wyoming and Alaska. He denied that the plan is unpopular in the West, citing letters of support from recreation and conversation groups and the outdoor industry.

The same article indicated you believe people are hearing “rhetoric” from Western lawmakers, but no grass-roots opposition.

As associations who represent responsible motorized enthusiasts, we strongly disagree with any assertion that there is no grass-roots opposition. To the contrary, there is considerable and growing opposition to Wild Lands from those who have responsibly recreated on public lands for decades.

We encourage the BLM to continue to engage the public in their deliberations on the disposition of public lands. Our members stand ready to serve as a resource for you and you further consider responsible public access to America’s public lands.

Thank you for your consideration of our request. We look forward to receiving your timely response to the questions and comments above.

Sincerely,

Edward Moreland
Senior Vice President, Government Relations
American Motorcyclist Association

Royce Wood
Government Affairs Manager
All-Terrain Vehicle Association

Don Riggle
President
Trails Preservation Alliance

Michael Swenson
Executive Director
Utah Shared Access Alliance

Jerry Abboud
Executive Director Legislative Affairs
Colorado Off Highway Vehicle coalition

Dave Pickett
President
AMA District 36

Jerry Grabow
President
AMA District 37 Off-Road Division

Jim Woods
President
California Off-Road Vehicle Association

CC:
Chairman Doc Hastings, U.S. House Committee on Natural Resources
Ranking Member Edward Markey, U.S. House Committee on Natural Resources
Chairman Robe Bishop, Subcommittee on National Parks, Forests and Public Lands
Ranking Member Raul Grijalva, Subcommittee on National Parks, Forests and Public Lands

Read more & take action!

January 27, 2011
 

• The continuation of the GNF/BLM TMP appeal.
• The WRNF and Santa Fe NF final TMP/DEIS analysis.
• The continuation of the Moab BLM appeal.
• The continuation of the State Parks Board, law suit concerning the OHV fund.
• OHV recreation development in the Gateway/Debequee BLM area.
• Support for OHV organizations trying to protect OHV recreation in Utah and New Mexico.
• Work to protect existing OHV recreation areas, and public access to public lands.
• Working with OHV organizations in SW Colorado in their effort to protect existing OHV routes.

It is time to get involved! We need everyone’s help to save our sport, and to protect public access to public lands.

January 11, 2011
 

Dear Regional Forester Newman:
We write on behalf of our clients the Trails Preservation Alliance (“TPA”) and Colorado Off-Highway Vehicle Coalition (“COHVCO”) (collectively “the Recreation Groups”). The Recreation Groups are active stakeholders in recreation planning for New Mexico National Forests. While our members enjoy a wide range of recreational activities and modes of access, we are particularly concerned with proper recognition and continuation of quality single-track trail riding opportunities. We are concerned that Forests in New Mexico (and beyond) properly disclose and analyze a full range of recreational opportunities in travel planning, including those under special use permits.

Our concern develops in response to the potential overlap between two pending analyses in the Carson Forest, Questa Ranger District. The Forest is proposing to authorize expansion of the Taos Ski Valley under its 2010 Master Development Plan and make associated changes to its special use permit which will include addition of mountain biking trails. The Forest has indicated that a NEPA document will be released addressing travel management on the Questa Ranger District. It is essential that the nature and extent of motorized and nonmotorized trail riding mileage be accurately portrayed in the alternatives and analyzed by the interdisciplinary team.

During our involvement in the Gunnison (CO) National Forest Travel Management Plan and associated environmental impact statements (“the GNF TMP”) we learned that single-track trails are a highly prized but scarce recreation resource and that allocation of motorized/nonmotorized single-track opportunity is a thorny issue. Given the paucity of quality single-track miles it is critically important that each mile be thoroughly analyzed, properly understood and accurately portrayed to the reviewing public. The public cannot properly evaluate and comment upon the diversity of recreation opportunity, nor can agency specialists properly analyze and allocate opportunities without considering this information. The range of information needed includes motorized and nonmotorized recreation opportunities, including specific vehicle types or seasons of use, on lands within and adjacent to the project area, including other ranger districts, under special use permit, and on lands outside of Forest Service jurisdiction.

In the GNF TMP a meaningful number of mountain bike only trails within the permitted Crested Butte Ski Area were not considered in the analysis. Whether by design or coincidence, the result was to skew the allocation of single-track outside the Ski Area in favor of exclusive nonmotorized (mountain bike) use. We wish to avoid this mistake again, which potentially looms given the proposed expansion of boundary and mountain bike trail network associated with the Taos Ski Valley special use permit.

The Recreation Groups are strong supporters of a diversity of recreational opportunities in the National Forests, including ski areas, backcountry skiing, mountain biking, and motorcycle riding. However, we wish to be firmly on record with several important principles concerning the analysis and allocation of these opportunities. First, we urge the Service and the Carson to recognize the principle of shared use, and to see through the tactic of many sadly-intolerant users who will claim that exclusive nonmotorized (or nonmechanized) access is the only acceptable solution to alleged resource issues or even more evanescent and subjective perceptions of “user conflict.” It is entirely valid for those seeking solitude, self-reflection, danger, psychospiritual escape or whatever other experience without motors or gears to look for a setting in the National Forest System, but it is not valid for them to use these primarily ideological requirements to exclude others who are likely greater in number and have equally legitimate interests in use of the public lands. There is an extensive network of formally-designated wilderness that provides them ample publicly-owned, publicly-managed and often free country to explore.

Second, we urge the Forest to accurately disclose and consider in the analysis the nonmotorized recreational opportunity that is (or foreseeably may be) available on the Taos Ski Valley or other areas adjacent to the project area. This request is not only logical but necessary should the Forest wish to properly address its duty to disclose and consider cumulative effects to the human environment.

Finally, we note that an essential ingredient in any recreation or trail management recipe is a commitment to active and effective management. There is no magic formula which can be announced by administrative edict and then ignored. Recreation management implies ongoing human use, and humans are notoriously curious, unpredictable, and at least occasionally irrational. Effective mapping, signage, user outreach, trail construction/maintenance, and enforcement are but a few of the elements that must be included in the Questa District (or any) plan if it is to succeed. As we have done elsewhere, the Recreation Groups are committed to assisting the Carson in achieving a reasonable balance and, to the extent appropriate and possible, in addressing these ongoing management needs.

We appreciate your attention to these concerns and look forward to participating in the upcoming and continuing planning process.

Sincerely,
MOORE SMITH BUXTON & TURCKE CHARTERED
Paul A. Turcke

cc: Don Riggle, TPA
BlueRibbon Coalition
American Motorcyclist Association
 

December 28, 2010
Ride with Respect Year in Review
By Clif Koontz

Email as written by Clif Koontz and reprinted with permission:

For Ride with Respect, 2010 has proven to be another productive year in a variety of ways. While maintaining Sovereign Trail and our volunteer patrol program, we’ve begun expanding our trails-conservation service to other areas.

When RwR was featured in American Motorcyclist magazine (http://www.ama-cycle.org/magazine/2010/October/index.asp), Dale Parriott and I figured that would be the year’s highlight. More than ever before, AMA is promoting responsible recreation along with racing and street-riding issues.

But then came the National Trails Award for Outstanding Trail Sharing (http://moabtimes.com/view/full_story/10756630/article-Local-group-receives-national-award-for-work-on-shared-use-trails). In the work of outdoor recreation, being recognized by American Trails is like getting an Emmy! If you’ve ever contributed time or money toward RwR, then this is your award, too.
This past summer, RwR assisted Utah Trust Lands Administration (TLA) with their first comprehensive OHV travel plan (http://tlamap.trustlands.utah.gov/plat/help/lasaltrails.htm). As we proposed, the South Block of the La Sal Mountains features a singletrack loop and ATV loop. Some of you may notice that a third of the singletrack has been closed, despite being comprised of viable routes. Please bear in mind that the ATV loop is still entirely intact, and still fun on two wheels. Furthermore, the North and South blocks are set aside to benefit University of Utah and USU. TLA went out of its way to incorporate RwR’s input. As we finish marking the routes this summer, we look forward to a management partnership. Given visitor compliance, RwR predicts enhanced recreation opportunities in the South Block. Statewide, OHV riding and camping has been displaced onto trust lands. The La Sal Mountain pilot project is TLA’s good-faith effort to accommodate the public while fulfilling its fiduciary responsibility to educational institutions.

Also on the planning front, RwR participated in the BLM process to close a short-yet-connective motorized singletrack in the White Wash area. With support from Blue Ribbon Coalition and Colorado Trails Preservation Alliance, RwR persuaded BLM to pledge the addition of a motorized singletrack nearby in lieu of this closed one. In the White Wash area, BLM’s 2008 travel plan is actually quite reasonable, designating the vast majority of OHV routes. The few closures stem from legitimate concerns about riparian zones, private property, and the escape routes of bighorn sheep to higher terrain. We commend BLM on implementing this trail system, and will join the agency in the field next spring.

At the request of USFS, RwR rerouted the most erosive part of Red Ledges Trail in the Abajo Mountains. A few days and a few hundred yards later, this primitive singletrack should be more sustainable, safe, and satisfying for all. Next year, USFS will contribute labor toward a much larger reroute. Visitors to the Abajos and La Sals may have noticed newly-posted travel restrictions. Granted, the travel plans have some shortfalls, particularly in the La Sals. But they’ve been law for a couple decades. RwR hopes that frustrated visitors will channel their energy toward improving these plans. In the next few years, participate in their revision. In the meantime, get to know local USFS planners. And, please, get organized. If postmarked before the new year, your tax-deductible donation to RwR can still count for 2010.

On a more somber note, we extend sympathy and gratitude to Utah State Parks Ranger Brody Young. Ranger Young is slowly recovering from bullet wounds sustained last month while patrolling public lands. In our experience, Brody protected the land and its visitors through citations when necessary, and through education whenever possible. Brody has enforced the law for all the right reasons, and we need more rangers like him. To assist with the uncovered part of his medical bills, you can pitch in for the Young family http://rangerbrody.org.

Next year RwR has larger on-the-ground projects planned with BLM, USFS, and TLA. It’s ambitious, so we’ll need you to match the support from Utah State Parks and Grand County. Until then, remember that snow is nature’s way of ensuring our water supply, and our thirst for trails come spring.

Clif Koontz

Program Director
Ride with Respect
www.ridewithrespect.org
 

October 29, 2010
Gunnison Update
By Dennis Larratt

The Forest Service started this process in 2006, and has followed the required steps of the NEPA process: Scoping (2007), public comments, Draft Env. Impact Statement (DEIS), more public comments, Final EIS (FEIS), the last round of public comments, the Record of Decision (ROD), and finally Appeal resolution. COHVCO has partnered with the Colorado Trails Preservation Alliance (TPA) and the RMEC (Rocky Mtn Enduro Circuit) from the start of the process. The efforts have been led by Don Riggle of TPA, myself, a former USFS employee (let’s call him Fred), our legal counsel, and the COHVCO team. We also got help from people like Walt Blackburn, Jim Maucker, Jerry Guthals in Creede, Blue Ribbon Coalition, several Western Slope clubs, lots of locals from Gunnison, Crested Butte, Carbondale, and more. A true team effort.

Don, and I calculate that the two of us have had 15-20 face to face meetings with USFS and BLM personnel on this plan, mostly in Gunnison & Delta. Along with Fred, we’ve submitted extensive comments at each step of the way. I’ve been involved in these processes for nearly 25 years, and I’m proud to say that we’ve done a better job from the very start of this process than any other plan I’m aware of. Each step resulted in a book of comments from our team. And we’ve made a difference!

We’ve reported in the past that many of the trails were at risk. Most of the differences came between the DEIS and the FEIS, but we saved one additional trail between the FEIS and the ROD. The combined efforts have kept open the following key trails to motorized use: the Crest Trail from Monarch Pass South, along with Agate Creek, Lime Creek, and virtually all the trails South of Marshall Pass through Cochetopa Hills. We got back the Carbon trail, the Italian Creek Connector (aka Spring Creek), and Teocalli Ridge will be re-opened once trail improvements are completed. All of these routes were scheduled for closure in the DEIS preferred alternative. Walt Blackburn and the Thunder Mountain Wheelers, who are very knowledgeable about the Paonia District, assure us that the results there are equally positive. Good stuff!

The bad news comes in the form of Doctor Park to Northbank Campground and Matchless Mtn., due to the DOW’s protection of bighorn sheep. We lose the Lowline and Highline trails, plus the Beaver Creek / April Gulch trails for what we consider weak resources issues. We lose Ferris Creek to mountain bikes. And we lost a few 4WD routes in the general vicinity of Pitkin that should be open.

Meanwhile, mountain bike trail mileage increases significantly. Over 1,000 miles of roads, including 750 miles of short spur roads will be closed. These spurs don’t affect riding much, but they affect everyone who enjoys dispersed camping away from the main roads. And there are significant flaws in the required analysis. While the USFS process doesn’t allow a legal challenge (an Appeal) based on route decisions, it does on the processes by which the decisions were made. Don, Fred & I finalized our work with our attorney and an appeal was submitted on behalf of TPA, COHVCO, RMEC, & Blue Ribbon Coalition. If you are suffering from insomnia, you can read all the details in our comments and the appeal at the TPA website: www.coloradotpa.org . Unfortunately, we didn’t gain anything in the appeal process, and the High Country Citizens Alliance did. What they gained was that the USFS will be required to re-assess the Crest Trail as part of a CDNST analysis. We believe that we have the data to support maintaining the Crest as motorized, but we can’t let up our guard. If you, or anyone you know, rode the Crest trail prior to 1978, we need to talk to you. Please contact Dennis @ dlarratt@cohvco.org

While Don, Glenn Graham, and I don’t get paid, even for travel, Fred and the attorney are expensive. So are the printing of the maps required to closely analyze each step’s changes, the 1000’s of pages of USFS documents, as well as publishing our comments for each key member of the USFS and BLM team involved in the process. COHVCO and the TPA have split all of the costs 50/50, and the RMEC is has been one of COHVCO’s biggest supporters since our start in 1987. YOUR SUPPORT OF THESE ORGANIZATIONS IS ALSO NEEDED AND APPRECIATED!

Please join COHVCO and make an additional donation. Donations the TPA are also tax deductible. Ride responsibly, and help us protect Colorado’s great riding!
 

The TPA in conjunction with it New Mexico supporters, and COHVCO have decided to respond to the Santa Fe NF DEIS/TMP document.  This decision was made to help the New Mexico motorcycle riders in their quest to preserve single track motorcycle trail riding.  This action follows the mission statement of the TPA, and was the right thing to do to help preserve public access to public lands.

September 29,2010
Delivered via Federal Express and email tosftravelmgt@fsfed.us

SFNF Travel Comments
11 Forest Lane
Santa Fe, NM 87508

Dear SFNF ID Team:
We submit the following comments regarding the Draft Environmental Impact Statement (“DEIS”) for Travel Management on the Santa Fe National Forest (“SFNF”), July 2010, on behalf of the Trails Preservation Alliance (“TPA”), Colorado Off-Highway Vehicle Coalition (“COHVCO”), Jim Burton, Greg Fleming, Ed Hoffman, and John O’Malia (collectively “the Recreation Groups”). We appreciate the opportunity to provide comments and to work with the Forest Service to ensure that the public is afforded ample motorized recreation and access opportunities on the SFNF.

Background
The DEIS addresses the purpose of complying with national policy articulated in the 2005 Travel Management Rule (“TMR”) (70 Fed. Reg. 68264 et seq., Nov. 9, 2005; 36 CFR Parts 212, 251, 261 and 295). It is important to note at the outset that the TMR is not a “closure” directive as portrayed by some preservationist special interests. Then-Chief Dale Bosworth stated upon release of the TMR that “[l]and Managers will use the new rule to continue to work with motorized sports enthusiasts, conservations, state and local officials and others to provide responsible motorized recreational experiences in national forests and grasslands for the long run.” USDA Forest Service, News Releases, “USDA Releases Final Rule for Motorized Recreation in National Forests & Grasslands,” dated November 2, 2005. “A managed system of roads, trails and area designated for motor vehicle use will better protect natural and cultural resources, address use conflicts, and secure sustainable opportunities for public enjoyment of national forests and grasslands.” Travel Management Rule Final Communication Plan, November 2, 2005, p.5. In fact, “it is Forest Service Policy to provide to diversity of road and trail opportunities for experiencing a variety of environments and modes of travel consistent with the National Forest recreation role and land capability.” Forest Service Manual 2353.03(2); see also, 70 Fed. Reg. 68264 (“motor vehicles are a legitimate and appropriate way for people to enjoy their National Forests in the right places and with the proper management.”).

The Forest Service should be planning for a managed system, and working with all groups, including OHV enthusiasts, in order to comply with not only the agency’s own directives and the Travel Management Rule, but the policies behind the Rule.

The Recreation Groups have many members who live near and/or recreate in the SFNF. These activities include or are economically-connected to motorized and non-motorized recreation, including access by passenger auto, full-size four-wheel drive, ATV, UTV, motorcycle, mountain bike, horses, hiking and other modes of access. This recreational access is intrinsically rewarding for Recreation Groups’ members, but also facilitates other activities including sightseeing, camping, picnicking and day trips, hunting, fishing, photography, observing wildlife, wood and nut gathering, and similar activities. The restrictions proposed in the DEIS, even under Alternative 4 which we support among the range of present alternatives, will adversely impact the activities and recreational/aesthetic interests of Recreation Groups’ members.

These comments are supplemental to, and independent of, any submitted by individual or organizational members of the Recreation Groups. The agency shall independently evaluate and respond to all such comments. In particular, we will not attempt to address route-specific issues in these comments, but anticipate that many members and enthusiasts will do so. An effective response to such comments will be essential to the initial and long-term success of the Travel Management Plan on the SFNF. Please direct any correspondence regarding these comments to Paul Turcke via the above-listed contact information or pat@msbtlaw.com.

cont…

To read the rest of this 23 page document, download the PDF.

August 31, 2010
COHVCO Corner
By Dennis Larratt

Gunnison Travel Plan Decision Released. 
Good news and bad news for motorcyclists.

This process started in early 2007 and has followed the required steps of the NEPA process: Scoping (2007), public comments, Draft Env. Impact Statement (DEIS), more public comments, Final EIS (FEIS), the last round of public comments, and finally the Record of Decision (ROD).  The RMEC has partnered with the Colorado Trails Preservation Alliance (TPA) and COHVCO from the start of the process.  The efforts have been led by Don Riggle of TPA, myself, a former USFS employee (let’s call him Fred), our legal counsel, and the COHVCO team.  We also got help from people like Jim Maucker, Jerry Guthals in Creede, Blue Ribbon Coalition, several Western Slope clubs, lots of locals from Gunnison, Crested Butte, Carbondale, and more.  A true team effort.

Don, and I calculate that the two of us have had over 15 meetings with USFS and BLM personnel on this plan, mostly in Gunnison & Delta.  Along with Fred, we’ve submitted extensive comments at each step of the way.  I’ve been involved in these processes for nearly 25 years, and I’m proud to say that we’ve done a better job from the very start of this process than any other plan I’m aware of.  Each step resulted in a book of comments from our team.  And we’ve made a difference!

In the April 2009 Checkpoint, I reported on many of the trails that were at risk.  Most of the differences came between the DEIS and the FEIS, but we saved one additional trail between the FEIS and the ROD.  The combined efforts have kept open the following key trails to motorized use: the Crest Trail from Monarch Pass South, along with Agate Creek, Lime Creek, and virtually all the trails South of Marshall Pass through Cochetopa Hills.  We got back the Carbon trail, the Italian Creek Connector (aka Spring Creek), and Teocalli Ridge will be re-opened once trail improvements are completed.  Good stuff!

The bad news comes in the form of Doctor Park to Northbank Campground and Matchless Mtn., due to the DOW’s protection of bighorn sheep.  We lose the Lowline and Highline trails, plus the Beaver Creek / April Gulch trails for what we consider weak resources issues.  We lose Ferris Creek to mountain bikes.

Meanwhile, mountain bike trail mileage increases significantly.  Over 1,000 miles of roads, including 750 miles of short spur roads will be closed.  These spurs don’t affect riding much, but they affect everyone who enjoys dispersed camping away from the main roads.  And there are significant flaws in the required analysis.  While the USFS process doesn’t allow a legal challenge (an Appeal) based on route decisions, it does on the processes by which the decisions were made.  The day before I wrote this, Don, Fred & I finalized our work with our attorney and an appeal was submitted on behalf of TPA, COHVCO, RMEC, & Blue Ribbon Coalition.  If you are suffering from insomnia, you can read all the details in our comments and the appeal at the TPA website: www.coloradotpa.org .
 
While Don and I don’t get paid, even for travel, Fred and the attorney are expensive.  So are the printing of the maps required to closely analyze each step’s changes, the 1000’s of pages of USFS documents, as well as publishing our comments for each key member of the USFS and BLM team involved in the process.  COHVCO and the TPA have split all of the costs 50/50 (no direct cost to RMEC).  So the RMEC’s generous contributions to COHVCO are really key.  And I’ll be asking for some $ for the TPA this year as well.  YOUR SUPPORT OF THESE ORGANIZATIONS IS ALSO NEEDED AND APPRECIATED!

On another note, COHVCO has led a battle to protect the Colorado OHV Registration and Grant program with Colorado State Parks for over a year.  A group of anti-motorized groups, led by the Colorado Mountain Club and Responsible Trails America, a Virginia based non-membership group, have tried all sorts of ways to wrest money and control from the system.  They made progress on this front when the State Parks Board voted to make changes to the OHV Subcommittee who votes on the grants, and on the grant criteria.  The process was extremely messy, and State Parks broke the Colorado open meetings law during the process.  COHVCO and TPA are also challenging the process and outcome of this process.  Suffice it to say that it has taken a huge toll on everyone involved in the process.  We’ll keep you informed as this unfolds.

Please join COHVCO and make an additional donation.  Donations should also be made to TPA are tax deductible.  Ride responsibly, and help us protect Colorado’s great riding!
 

August 26, 2010
UNITED STATES DEPARTMENT OF INTERIOR
BOARD OF LAND APPEALS

TRAILS PRESERVATION ALLIANCE, COLORADO OFF HIGHWAY VEHICLE COALITION, ROCKY MOUNTAIN ENDURO CIRCUIT
Appellant,
vs.
BUREAU OF LAND MANAGEMENT; Gunnison Field Office; BRIAN ST. GEORGE, Gunnison Field Office Manager
Respondents

STANDARD OF REVIEW
BLM has authority to regulate off highway vehicles on public lands.  See 43 CFR Part 8340; Rainer Huck, 168 IBLA 365 (2006).  The agency has broad discretionary authority, and “a BLM activity plan implementing the ORV decisions in an RMP or other ORV management plan will be affirmed if the decision adequately considers all relevant factors including environmental impacts, reflects a reasoned analysis, and is supported by the record, absent a showing of compelling reasons for modification or reversal.”  Rainer Huck, 168 IBLA 365, 395 (2006).  This Board’s OHV decisions consistently reject appeals that can be characterized as “mere differences of opinion.”  Id. (citations omitted).

In a broader sense, these IBLA decisions fall within judicial authority applying the “arbitrary and capricious” standard under the Administrative Procedure Act (5 USC § 551 et seq.).  The arbitrary and capricious standard is deferential and does not allow a reviewing court to substitute its judgment for that of the agency:

The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency.  Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made….Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.  The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.

Motor Vehicle Mfrs. Ass’n. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983) (citations omitted) (emphasis added).  Arbitrary and capricious review is the mechanism through which the courts can require basic fairness and reasonableness of agency behavior, for “unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on discretion.”  Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962) (quotation omitted).

APPEAL ISSUES
The Decision contains several independent flaws, any or all of which should be the subject of further analysis on remand. 

A. The Agency Has Failed to Comply with Mandatory Procedures for Publication and Notice.

The Decision has not been properly published.  The public has therefore not been formally notified of the Decision and applicable appeal rights.  This flaw is not a difference of opinion but reflects BLM’s incorrect interpretation (or application) of binding regulations. The Decision appears to attempt “designation of roads and trails…considered [an] implementation decision[ ]” as opposed to “any change to the designation of areas as Open, Limited, or Closed” which “requires a [RMP] plan amendment and is subject to a public protest period and governor’s consistency review….”  ROD at 2 (italics in ROD) (attached hereto as Exhibit “A”).  Assuming there is a difference in this distinction, the agency conducted a public planning process and thereby apparently proceeded under 43 CFR § 8342.2(a), as opposed to simply rendering a decision under “emergency” or “special rules” which might be exempt from the public participation requirement.  However, BLM did not (and has not) published notice of the Decision in the Federal Register.  This failure violates applicable law and regulation.

As noted above, the Decision stems from a “public participation” process under 43 CFR § 8342.2(a).  When such a process includes “designation and redesignation of trails” it “is accomplished through the resource management planning process described in part 1600 of this title.”  Id.  In particular, “[p]ublic notice of designation or redesignation shall be provided through publication of the notice required by § 1610.5-1(b) of this title.”  43 CFR § 8342.2(b).  The cited provision refers to publication of notice in the Federal Register, which among various purposes signals the start of a 30-day protest period.  43 CFR § 1610.5-2(a)(1).

BLM may contend here that the aforementioned procedures were not required based on an asserted distinction between RMP amendment and “implementation decision” processes.  ROD at 2.  Even if this contention is correct, even the ROD acknowledges the Decision is subject to appeal “in accordance with the regulations at 43 CFR 4.400.”  ROD at 12.  Those regulations indicate two (2) different situations for calculating the 30-day appeal period.  For “a person served with the decision” an appeal must be filed “within 30 days after the date of service.”  43 CFR § 4.411(a).  Where (as here) BLM contemplates a decision of broader applicability or otherwise not susceptible to being served on a finite number of individuals, the regulation provides that the 30 day appeal period starts from the date a decision is published in the Federal Register.  Id.  These procedures make sense.  Many BLM decisions, such as grazing decisions, involve permittees or interested persons of record susceptible to service by certified mail.  Other decisions of broader “legislative” character which apply to the general public such as trail or area designations (or restrictions) are more appropriately formalized through legal notice in the specified source of record.

Under any of the potential regulatory pathways BLM has failed to formally provide notice.  The source of record identified in the regulations is the Federal Register.  BLM has not accomplished publication in the Federal Register.  The appeal period has not yet started to run, at least for many potential appellants.   This defect prevents implementation of the Decision.

B. The Decision Fails to Provide Site-Specific Rationale for Individual Routes.

Site-specific decisions are apparently behind many, if not all, of the specific designations within the Decision.  However, the agency has generally failed to present the rationale for individual routes.  The ROD only mentions the alternative selected and generally summarizes route mileage by certain categories.  ROD at 5.  The only mention of specific routes is for those whose designations were changed after the close of comment.  ROD at 5-6.  There are several problems with this approach.  For most routes the public has no insight whatsoever into the agency’s analytical process.  Further, even for the routes which are identified in the ROD, the discussion occurs after the close of comment and therefore a post hoc justification of an agency decision.

Appellants cannot and will not attempt to “prove the negative” regarding such routes.  Appellants appreciate the requirement they do more than merely “second guess” BLM’s conclusions, but the Decision’s approach affords no other option as the Decision (and FEIS) only catalogue agency conclusions without underlying analysis.  Appellants request, on remand or in ongoing analysis, that closures motivated by wildlife, watershed or other “technical” conclusions be specifically identified.  This should include direction to BLM to reconsider the designation status of the route segments identified, as well as any segments which were not designated for use but for which no justification is presented.

C. The Decision Made Substantial Changes to the Preferred Alternative Not Subject to Public Input.

BLM additionally failed to conduct supplemental analysis after making meaningful changes between the FEIS and Decision Record.  An agency must prepare a supplemental EIS if “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns.”  40 CFR § 1502.9(c)(1)(i).  It is important to note that the relevant “environment” for purposes of evaluating impacts is the “human environment” which includes not just the physical environment but “the relationship of people with that environment.”  42 USC § 4332(2)(C); 40 CFR § 1508.14.  The FEIS pretends that unauthorized routes do not exist, precluding NEPA’s required comparison between the action alternatives and the human environmental baseline.   The Council on Environmental Quality has further clarified that a supplement is not required when the final alternative/decision is “qualitatively within the spectrum of alternatives that were discussed in the draft” and reflects only “minor variation” from them.  Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 46 Fed.Reg. 18026, 18035 (Mar. 17, 1981).  These requirements seem intuitive – the public cannot be expected to provide meaningful input to decision options not revealed by the agency. 

The supplementation requirement arises in large part from NEPA’s public information purposes.  An EIS: serves two ends.  A properly prepared EIS ensures that federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences, and it provides the public with information on the environmental impact of a proposed action and encourages public participation in the development of that information.

Arizona Cattle Growers’ Ass’n v. Cartwright, 29 F.Supp.2d 1100, 1116 (D. Ariz. 1998) (citing Oregon Envt’l Council v. Kunzman, 817 F.2d 484 (9th Cir. 1987).  In particular, supplementation is necessary:
when the [DEIS] is insufficient to bring about the necessary public comments due to significant new information or changes to a plan.  “[I]n the context of reviewing a decision not to supplement an EIS, courts should not automatically defer to the agency’s express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance-or lack of significance-of the new information.”

Id. (quoting Marsh v. ONRC, 490 U.S. 360, 378 (1989)).  Where proper analysis of impacts depends on location-specific factors, at least one court has found that the failure to disclose changing locations coupled with discussion of only general types of impacts “would be anathema to NEPA’s ‘twin aims’ of informed agency decisionmaking and public access to information.”  New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 707 (10th Cir. 2009) (quoting Marsh, 490 U.S. at 371).

The Decision made substantial changes that were relevant to environmental concerns.  The Decision identifies multiple changes, both for and against motorized access, that were made to the FEIS Preferred Alternative.  ROD at 5-6.  It is admirable that BLM considered and responded to public comment, but procedurally unacceptable to address such input by essentially creating a new alternative and adopting it as the final decision.  The public was unable to anticipate and comment upon what was not only a viable alternative but the agency’s ultimate selected outcome to the public planning process.  On remand BLM should be directed to prepare a supplemental analysis.

D. Specific Routes Were Arbitrarily Excluded from Meaningful Analysis.

The BLM improperly failed to consider designation of certain routes based on the perception that portions of (or connections to) those routes on Forest Service land would not be designated open for vehicle use.  The Decision was reached through an interconnected analysis performed by the BLM Gunnison Field Office and the Gunnison National Forest.  Given the nature of the intermingled land ownership patterns, there are some existing and historically-traveled routes which occur on both BLM and Forest Service (and possibly other) lands.  As a result, one of two evils occurred.  Either BLM limited its analysis based on “inside” discussions about the Forest’s handling of a route, or BLM (or the Forest) simply failed to meaningfully engage analysis of certain routes in the absence of the sister agency’s designation

Appellants are particularly concerned about the following routes that were affected by this dynamic:

(1) East – West Corridor Gunnison NF 4WD Trail 807 to BLM West Roads

(2) The area south of Highway 50 including the BLM connection to Gunnison NF  4WD Trail 806, and the BLM connection to Gunnison NF roads 789.2B to 775 to 854.2A.

(3) Beaver Creek, FS trail # 447.  The closure of this trail is of significant concern to the motorized community.  This trail is the only single track access off the Lands End area.  There is extensive historical use of this area, with closure and decommissioning of alternative routes.  If stream crossing issues are the purported rationale, the agency has failed to consider reasonable mitigation options.  Further, stream crossing impacts are typically attributable to the existence of a route far more so than travel upon it, and it seems arbitrary to restrict motorized travel while leaving the route in place for continuing use by other groups.

The record does not reflect meaningful consideration of these options despite being repeatedly noted by Appellants and others.  Designation of all the routes in question would reflect existing and historical use of the area, would not have adverse effects on physical resources, and would allow sustainable loop trail riding that would arguably reduce impacts, be safer, and provide for enhanced visitor experience.
CONCLUSION

BLM’s Decision is an admirable first step at the difficult challenge of designating trails in the Gunnison Field Office.  However, the Decision reflects deviation from mandatory procedures.  Failure to follow mandatory procedures, particularly when relating to proper legal notice of the Decision and fundamental aspects of public participation, reflect compelling reasons for modification or reversal.  Appellants respectfully request the Decision be remanded for further analysis.

Dated this _____ of August, 2010.

MOORE SMITH BUXTON & TURCKE,
CHARTERED
                                                                    ____________________________________
PAUL A. TURCKE
Attorneys for Appellants
 

August 13, 2010

Delivered via U.S. Mail and email to appeals-rocky-mountain-regional-office@fs.fed.us

Appeals USDA Forest Service Rocky Mountain Region
740 Simms St. Golden, CO 80401

RE: Part 215 Notice of Appeal- Gunnison NF Travel Management ROD/FEIS

This appeal is presented on behalf of the Trails Preservation Alliance (TPA), Colorado Off Highway Vehicle Coalition (COHVCO), Rocky Mountain Enduro Circuit (RMEC) and the BlueRibbon Coalition. Individual and/or organizational members of the listed appellants may submit their own appeal(s) from the Decision. This appeal and any such appeals must be independently evaluated and the agency must comply with applicable review procedures for all such appeals. Any communications regarding this appeal should be directed to Paul A. Turcke at the contact information listed above and at pat@msbtlaw.com.

I. INTRODUCTION
Appellants are generally appreciative of the underlying process, structure of the Decision, and outcome on the majority of issues considered. Appellants understand there are active and well-moneyed special interests who seek aggressive reduction (if not elimination) of motorized access to the National Forest System. We applaud the Forest for remaining faithful to the underlying mission of balancing sustainable management of physical resources and appropriate human enjoyment of the Forest. Since current regulations provide no mechanism for intervention in the part 215 appeal process, we face little option but to file an appeal in order to fully participate and defend motorized route/area designations against possible challenge.

There are, however, several areas where the analysis did not follow proper procedures or provide a defensible rationale for restrictions of historically-available motorized access. There is a meaningful demand for motorized/mechanized recreation that is not properly understood or addressed by the Decision. Certain route-specific decisions are simply wrong and should be reconsidered and rectified in the administrative appeal process. II. GENERAL LEGAL STANDARD As a preliminary matter, we wish to outline the applicable standard of judicial review, as this standard is effectively the one which agency decisionmakers must consider during the administrative review process. Executive-branch agency decisions are ultimately reviewable by the judiciary, which is empowered to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or found to be “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A) & (D), see also, Bonnichsen v. United States, 367 F.3d 864, 880 (9th Cir. 2004) (“we review the full agency record to determine whether substantial evidence supports the agency’s decision….”). The arbitrary and capricious standard is deferential and does not allow a reviewing court to substitute its judgment for that of the agency:

The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made….Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.

Motor Vehicle Mfrs. Ass’n. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983) (citations omitted) (emphasis added). Arbitrary and capricious review is the mechanism through which the courts can require basic fairness and reasonableness of agency behavior, for “unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on discretion.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962) (quotation omitted).

Even where an agency may have substantial evidence supporting its decision, the presence of contradictory evidence might render the decision arbitrary and capricious. Thus, “even though an agency decision may have been supported by substantial evidence, where other evidence in the record detracts from that relied upon by the agency we may properly find that the agency rule was arbitrary and capricious.” American Tunaboat Ass’n v. Baldrige, 738 F.2d 1013, 1016 (9th Cir. 1984) (citing Bowman Transport, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284 (1974) (agency decision supported by substantial evidence may still be arbitrary and capricious)); see Atchinson v. Wichita Board of Trade, 412 U.S. 800, 808 (1973) (where agency modifies or overrides precedents or policies, it has the “duty to explain its departure from prior norms”).
Even substantial evidence cannot properly support a decision if the information was not considered by the decision-maker at the proper stage of the process. Information cannot be presented as a post-hoc rationalization to justify a decision previously made. Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996). For the reasons identified below, the Decision violates these basic principles.

III. APPEAL ISSUES
The Decision is legally deficient in its treatment of several important issues. A. The Decision Fails to Properly Analyze or Address Motorized Recreation Demand.
The Decision fails to reflect the basic fact that “[m]otorized recreation is a legitimate use” of the National Forests. Travel Management Rule Final Communication Plan, November 2, 2005, p.5. The various factors that must be reflected in a route designation decision include “provision of recreational opportunities” and “access needs.” 36 CFR § 212.55(a). While a broad analysis of all forms of recreation may be a worthy undertaking, the immediate task before the Forest here was to perform the analysis required by the Travel Management Rule (TMR). The TMR is focused on designation of roads, trails and areas for motorized vehicle travel. The Decision flowed from a fundamentally flawed mission to evaluate all forms of recreation demand, including nonomotorized recreation, and allocate areas/routes accordingly. “The number of OHV users in the United States has climbed tenfold in the past 32 years, from approximately 5 million in 1972 to 51 million in 2004.” Id. As OHV use increases, the Forest Service seems intent on closing much of its route network because of fears of resource damage. However, the Forest Service should be looking for ways to effectively manage and accommodate demand by properly maintaining route systems and looking for areas to construct new, environmentally compatible routes. The Decision reflects the apparent philosophy of limiting opportunities and available route mileage, which will force increasing numbers of visitors into increasingly unsatisfying route networks, creating an unjustified risk of greater environmental impact. Effective travel management needs to prioritize designation of sufficient and well-designed road/trail systems that can respond to current and reasonably anticipated future visitor demand. Where restrictions are necessary, the agency should at least consider, if not look first, to techniques and management prescriptions other than route closures and reductions in available system mileage.

The Forest Service is required by law to make decisions based on a multiple-use mandate, as outlined in statutes like the Multiple-Use Sustained Yield Act of 1960 (“MUSYA”) and the National Forest Management Act (“NFMA”). In particular, NFMA requires:
In developing, maintaining, and revising plans of the National Forest System pursuant to this section, the Secretary shall assure that such plans –
(1) provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with [MUSYA], and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness…

NFMA §6, 16 U.S.C. § 1604(e). MUSYA provides further clarification of the agency’s duty to provide for “use” of the National Forest System, including outdoor recreation. MUSYA’s policy statement explains:

It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in section 475 of this title… MUSYA §1; 16 U.S.C. § 528.

The Forest Service must comply with this legally-mandated approach to management, which is subject to review under applicable administrative procedures and the Administrative Procedure Act (the “APA”). It is well recognized that the agency has discretion when balancing between “use” and “non-use” under these statutes, and in allocating “use” between the activities listed above. However, the agency cannot arbitrarily and capriciously establish its chosen balance, and must develop a plan “that will best meet the needs of the American People.” 16 U.S.C. § 531(a).

Then-Chief Dale Bosworth stated upon release of the Travel Management Rule that “[l]and Managers will use the new rule to continue to work with motorized sports enthusiasts, conservations, state and local officials and others to provide responsible motorized recreational experiences in national forests and grasslands for the long run.” USDA Forest Service, News Releases, “USDA Releases Final Rule for Motorized Recreation in National Forests & Grasslands,” dated November 2, 2005. “A managed system of roads, trails and area designated for motor vehicle use will better protect natural and cultural resources, address use conflicts, and secure sustainable opportunities for public enjoyment of national forests and grasslands.” Travel Management Rule Final Communication Plan, November 2, 2005, p.5. In fact, “it is Forest Service Policy to provide to diversity of road and trail opportunities for experiencing a variety of environments and modes of travel consistent with the National Forest recreation role and land capability.” Forest Service Manual 2353.03(2). The Forest Service should be planning for a managed system, and working with all groups, including OHV enthusiasts, in order to comply with not only the agency’s own directives and the Travel Management Rule, but the policies behind the Rule.

The Decision’s emphasis on nonomotorized recreation opportunity improperly distracted from proper focus on meeting motorized recreation demand. Additionally, the improper emphasis on allocating (indeed “awarding”) routes to specified uses ultimately meant that motorized recreationists faced disproportionate restrictions. The trail mileage by recreation type by alternative values have previously been submitted with Appellants’ comments, but we present them again here:

** includes the ‘unmanaged recreation’ routes AND Wilderness routes Even if it is proper to undertake the task of allocating motorized/nonmotorized recreation opportunity in a TMR process, the Decision’s allocations fail to reflect the basic fact that many recreation forms are not mutually exclusive. While a sad reflection of human nature, all recreation subgroups will seek “exclusive” use opportunities. In reality, many must accept shared opportunities. For example, a two-track ATV route can (and in many instances must) be shared by ATV riders, motorcyclists, mountain bikers, equestrians, and hikers. Yet such a route will be reflected in any summary as being “allocated” to ATV use.
The Decision fails to properly focus on meeting motorized recreation demand or need. Given the lack of proper focus, a proper outcome was unattainable. Additionally, the Decision arbitrarily and capriciously allocates motorized/nomotorized recreation opportunities. The Forest should revisit these issues on remand and/or ongoing analysis.

B. The Decision Treats Unauthorized Routes Arbitrarily. There are several distinct and independent flaws in the Decision’s treatment of “unauthorized” or “user-created” routes. In general terms, the Forest treated these as illegitimate and failed to meaningfully consider inclusion of such routes in the action alternatives. The inaccurate depiction of unauthorized routes constitutes independent violation of the Travel Management Rule and NEPA.

The Forest misrepresents the status quo and dramatically understates the historical and existing OHV opportunity on the Forest. A failure to consider unauthorized routes violates both the letter and spirit of the Forest Service Travel Management Rule (“the Rule.”). The Rule recognizes that some of these routes may be properly included in a formally-designated system and encourages Forest to work with interested publics to achieve this end. See, 70 Fed.Reg. 68269 (middle column) (“…some user-created routes would make excellent additions to the system of designated routes and areas. The Forest Service is committed to working with user groups and others to identify such routes and consider them on a site-specific basis.”); at 68279 (middle and right columns) (“User-created routes on NFS lands that have resulted from [previously legal] cross-country motor vehicle use may be identified through public involvement and considered in the designation process under the final rule….”). The Forest’s analysis falls far short of what is expected under the Travel Management Rule.

Existing (1) Preferred (2) Alt. 3 Alt. 4 Sum 1429.58 1429.58 1429.58 1429.58 ATV ATV 164.94 164.94 164.94 164.94 Motorcycle MO 501.77 341.11 217.18 426.38 Mountain Bike MB 586.08 472.35 375.82 622.75 Horse ** HO 1863.94 1783.74 1737.42 1861.28 Foot ** F 1872.71 1792.51 1743.6 1870.05

The Forest has independently violated NEPA’s requirement that the “no action” alternative be properly identified. See, 40 CFR § 1502.14(d). Even in the purported “no action” alternative unauthorized routes are apparently not included. This failure to identify existing routes prevents proper comparison any of the action alternatives to the “baseline” or existing condition. Without a fixed point from which to compare impacts neither the agency nor the public can properly evaluate the true impacts of the alternatives. Half Moon Bay Fishermans’ Marketing Ass’n v. Carlucci, 857 F.2d 505, 510 (9th Cir. 1988). It is important to note that the relevant “environment” for purposes of evaluating impacts is the “human environment” which includes not just the physical environment but “the relationship of people with that environment.” 40 CFR § 1508.14. The FEIS pretends that unauthorized routes do not exist, precluding NEPA’s required comparison between the action alternatives and the human environmental baseline.

On the other hand, where nonmotorized unauthorized routes are concerned, the Decision in some instances errs on the opposite side of the analytical spectrum and includes such routes with seemingly little or no analysis. It appears that the FS/BLM has largely accepted usercreated mountain bike trails without formal NEPA analysis. Examples include the Ferris Creek area and near Crested Butte, where relatively new, user-created mountain bike trails were apparently included in the Preferred Alternative. In fact, there is at least the perception in the user community that unauthorized mountain bike trails are generally accepted by the agency. See, Exhibit A, Denver Post article dated June 30, 2009. A number of near the Crested Butte area.

Appellants have no desire to quibble with the mountain bike community over treatment of unauthorized routes or other issues. The point is that the Decision reflects arbitrary treatment of unauthorized routes based largely (if not entirely) on whether the route(s) in question presently receive motorized use. The TMR acknowledges that user-created routes can be appropriately included in a recreation travel network. Just as the Forest has apparently concluded that many user-created mountain bike trails serve a need, so do routes created or now used by motorized recreationists. Appellants’ list of specific trails slated for closure in the Decision should be re-evaluated in ongoing analysis.

C. The Socioeconomic Analysis is Illegally Flawed.
The Decision fails to adequately consider socioeconomic effects of the various alternatives. Again, NEPA’s most fundamental legal direction requires the agency to evaluate impacts to the “human environment.” 42 USC § 4332(2)(C). The “human environment” expressly includes “the natural and physical environment and the relationship of people with that environment.” 40 CFR § 1508.14. When an agency prepares an EIS “and economic or social and natural or physical environmental effects are interrelated, then the [EIS] will discuss all of these effects on the human environment.” Id. A robust analysis is contemplated, for MUSYA states that “sustained yield” “means the achievement and maintenance in perpetuity of a highlevel annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.” 16 USC § 531(b). In discharging these duties, the Secretary shall give “due consideration…to the relative values of the various resources in particular areas.” 16 USC § 529.

The Decision does not even recognize these criteria. Failing to properly define the target effectively precludes the analysis from hitting it. Instead, the Forest resorted to narrative discussion of socioeconomic impacts. The FEIS cites some broad numbers regarding outdoor recreation. FEIS at 241. None of this discussion is ever connected to specific types of use, specific local communities, or anything approaching site-specific analysis. A proper analysis would seemingly include recognition of existing use patterns and levels, tied to specific roads/trails/areas of the Forest, followed by outputs to local communities. Put differently, the agency must put itself in a position to rationally evaluate the cost/benefit of various designation options for specific routes

The Decision concludes that “the level of recreational use and associated economic activity is not expected to change from existing conditions.” FEIS at 245. As noted above, there is no meaningful analysis to support this conclusion. In fact, the agency appears to want it both ways – where “environmental” effects (i.e. to the “natural and physical” environment) are concerned, the Decision trumpets the beneficial effects of motorized travel restrictions. However, where there are possible negative effects of those restrictions, such as socioeconomic effects in local communities, the Decision predicts no change. Neither the public nor the agency could be properly informed of the possible consequences of the decision options under review. On remand, the Forest should be directed to properly analyze socioeconomic impacts.

D. The Decision Considered An Illegally Limited Range of Alternatives. The Forest considered only alternatives that would significantly reduce motorized recreation opportunity. NEPA imposes a mandatory procedural duty on federal agencies to consider a reasonable range of alternatives to the preferred alternative. 40 C.F.R. § 1502.14 (“agencies shall rigorously explore and objectively evaluate all reasonable alternatives.”) The alternatives section is considered the “heart” of the EIS and a NEPA analysis must “explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14. A NEPA analysis is invalidated by “[t]he existence of a viable but unexamined alternative.” Resources, Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 1993).

An agency must also perform a reasonably thorough analysis of the alternatives before it. “The ‘rule of reason’ guides both the choice of alternatives as well as the extent to which an agency must discuss each alternative.” Surfrider Foundation v. Dalton, 989 F. Supp. 1309, 1326 (S.D. Cal. 1998) (citing City of Carmel-by-the-Sea v. United States Dep’t of Transportation, 123 F.3d 1142, 1154-55 (9th Cir. 1997)). The “rule of reason” is comparable to the arbitrary and capricious standard. Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998) (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 n. 23 (1989)). “The discussion of alternatives ‘must go beyond mere assertions’ if it is to fulfill its vital role of ‘exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of the government.’” State of Alaska v. Andrus, 580 F.2d 465, 475 (D.C. Cir. 1978), vacated in part on other grounds, Western Oil & Gas Ass’n, 439 U.S. 922 (1978) (quoting NRDC v. Callaway, 524 F.2d 79, 93-94 (2nd Cir. 1975)).

A proper range of alternatives was not considered here. The range of alternatives starts from the assumption that the Forest will not meaningfully revisit the retrospective interpretation of any of its prior “designations” made in prior processes, including the 2001 “green to yellow” inventory. As a result of this questionable decision, the “high end” of combined motorized route mileage was identified in the “no action” alternative as 3,731 miles. FEIS at 50 (Table 2-7). The next and independent flaw is the illegally truncated range of alternatives that followed. Specifically, comparing the row in that Table entitled “routes within the scope of analysis” the figures for the four action alternatives are 2,392; 1,984; 2399 and 2,334, respectively. Compared to the “no action” benchmark, these represent 64, 53, 65 and 63 percent of the “no action” mileages, respectively. In short, the agency somehow determined that no less than 35 percent of existing motorized routes must be eliminated from detailed analysis, and then analyzed a narrowly-truncated range of variations around that starting point.

The Council on Environmental Quality has spoken to this situation, and counsels an approach quite different from that adopted by the Forest. The CEQ’s “Forty Most Asked Questions” notes “[a] decisionmaker must not consider alternatives beyond the range of alternatives discussed in the relevant environmental documents.” Forty FAQ, 46 Fed.Reg. 18026 (Mar. 23, 1981). The CEQ document goes on to illustrate precisely the type of analysis appropriate here in discussing a hypothetical “proposal to designate wilderness areas.” Id. at 18027. The CEQ notes that such a proposal, presumably like the converse, a proposal to designate trails, could lend itself to “a very large or even an infinite number of possible alternatives.” Id. In such a situation:

only a reasonable number of examples, covering the full spectrum of alternatives, must be analyzed and compared in the EIS. An appropriate series of alternatives might include dedicating 0, 10, 30, 50, 70, 90 or 100 percent of the Forest to wilderness.

Id. (emphasis added). Instead, the Forest here arbitrarily created a range of alternatives narrowly distributed around an apparent “starting point” of a 35 percent reduction in route mileage.

One or more viable alternatives were improperly excluded from consideration. On remand or through further analysis the Forest should be directed to consider “unclosing” some existing routes, as well as creating new routes that would more properly address the criteria of NFMA, MUSYA and the TMR.

E. The Cumulative Effects Analysis is Deficient.

The Decision reflects an unusual and flawed procedure as well as unsupportable conclusions regarding analysis of cumulative impacts. The duty to evaluate cumulative impacts in an EIS is “mandatory.” City of Carmel-by-the-Sea v. U.S. Dept. of Transportation, 123 F.3d 1142, 1160 (9th Cir. 1997). “Cumulative impact” is defined by the relevant CEQ regulation as: the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. § 1508.7. The cumulative impacts analysis is deficient for many resources, but is particularly lacking in assessing recreation impacts.

The cumulative impacts treatment is curiously structured. For many resource areas, there is a separate section entitled “cumulative effects.” See, e.g., Wetland, Riparian Veg. et al., FEIS at 85. Additionally, there is a section at the end of the FEIS ch. 3 entitled “Evaluation of Cumulative Impacts at the Landscape Level.” FEIS at 269. All of the discussions are fraught with generalization. For many resources, there is no attempt at coverage aside from the “landscape level” section at the end of chapter 3. The selected procedure does not allow for a sufficient treatment of cumulative impacts.

Regardless of whether the structure is adequate, the discussion regarding past, present, and reasonably foreseeable restrictions on motorized recreation is not. At most, the Decision pays lip service to the fact that other subunits are conducting travel planning which is likely to reduce motorized recreation opportunities. FEIS at 273. The Decision must go much further, for these efforts are tangible and well-documented, and include Region 2 National Forests as well as others in adjacent western states/FS regions that are visited by recreationists frequenting the Forest. The lack of specificity in this discussion precludes it from properly assessing cumulative impacts. This discussion must address not only physical resource factors, but other aspects of the “human environment” including recreation opportunities, access needs, local community support, and impacts of possible displaced use.

The possibility of displaced use is particularly notable, and is mentioned in the Decision. FEIS at 274. The FEIS acknowledges that “there are typically fewer miles of road and trail open to [motorized] users” and that “[o]ften the recreational impact of these cumulative effects is displacement of users or substitution.” Id. Unfortunately, only identifying the tip of the planning iceberg does not comply with NEPA. The FEIS cogently touches on numerous cumulative impact issues. For example, what are the effects of displacing traditional GMUG users to (a) other Colorado forests; (b) other states; (c) other forms of recreation? These questions implicate a wide range of impacts. The FEIS raises these important questions but makes absolutely no attempt to analyze, let alone answer, them.

The agency seems well-committed to a path of eliminating historical motorized recreation opportunity across the Forest System. Whether by broader design or the coincidental, simultaneous choices of dozens of individual units erring on the side of closure, the ultimate effect might be to displace millions of riders into less justifiable use of our public lands than has historically occurred on the Forest. Regardless of the agency’s ultimate response, the Forest has entirely failed to conduct the required analysis of this issue as it relates to the Decision. F. Maintenance Programs and Costs are Inadequately Analyzed.

The TMR necessitates a reasoned analysis of maintenance history and future needs, for the designation criteria specifically require the responsible official to “consider effects on …The need for maintenance and administration of roads, trails and areas…and the availability of resources for that maintenance and administration.” 36 CFR 212.55(a). The Decision consistently misrepresents the nature of existing maintenance programs, most notably Colorado State OHV Program funds and grants. Since 1994, for example, the Colorado State OHV program has provided over $1.6 million in grants to the Gunnison Basin area for trail maintenance and trail crews.

The possible, indeed likely, contributions by nonfederal sources for both funding and other aspects of maintenance should be considered in the designation process. The TMR acknowledges that “volunteers and cooperators can supplement agency resources for maintenance and administration, and their contribution should be considered in this [TMP] evaluation….” 70 Fed.Reg. 68, 261.

Instead of properly recognizing past history and the commitment of user groups to continuing involvement, the FEIS grossly understates both, apparently to justify a less-ambitious route network. Thus, the Decision tepidly offers “[o]ccasionally, the opportunity presents itself for grant funding, user-group funding, or volunteered hours for construction or maintenance of particular trail routes.” FEIS at 265. This is a gross misrepresentation of the consistency and impact of the Colorado State OHV program to the Gunnison Basin. The average grant income per year over the last 10 years is $150,692. This compares favorably to the $144,700 annual amount shown in Table 3-61, page 267, for maintaining all USFS and BLM trails under the No Action Alternative. The motorized recreation community is proud of its past history working to the extent it has been allowed with the Forest Service and other land managers to actively support maintenance, signage, public education/outreach, and other important aspects of recreation management. The duty to analyze maintenance should highlight and enhance these cooperative management successes and opportunities, not be used an excuse for limiting access. On remand and in further analysis the Forest must more accurately portray the availability and consistency of nonfederal sources of funding and other resources.

G. Analysis of Technical Issues is Procedurally Deficient.
The Forest is accorded wide latitude in analyzing technical issues. Unfortunately, the Decision reflects independent deficiencies in this analysis. First, the methodology relied upon and the procedure by which the results were communicated with the public violate NEPA. Further, the substantive conclusions advanced by the Decision do not satisfy even arbitrary and capricious review.

When federal agencies evaluate technical issues or apply specialized expertise, NEPA requires them to rely on valid sources and to disclose methodology, present hard data, cite by footnote or other specific method to technical references, and otherwise disclose and document any bases for expert opinion. 40 C.F.R. § 1502.24; Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998). When applying NEPA, agencies must:
utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man’s environment….
42 U.S.C. § 4332(A); 40 C.F.R. § 1502.6. NEPA does not envision undocumented narrative exposition, instead requiring:
Agencies shall insure the professional integrity, including the scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement. An agency may place discussion of methodology in an appendix. 40 C.F.R. § 1502.24. Where information is not provided in the NEPA document itself, but is only cross-referenced:

“The propriety of such incorporation is dependent upon meeting three standards:
1) the material is reasonably available; 2) the statement is understandable without undue cross reference; and 3) the incorporation by reference meets a general standard of reasonableness.”

…[T]here is no evidence in the record concerning the public availability of other incorporated materials. In addition, although it appears that the EA is dependent on these documents to support its finding of no significant impact, [ ] the EA does not appear to specifically cite to which documents or portions of these documents support which conclusions. This requires undue cross-referencing. It appears that the incorporation of these materials fails the general reasonableness test. Defendants have failed to point out where these materials are specifically cited to in the materials to support their conclusions.

Siskiyou Regional Education Project v. Rose, 87 F.Supp.2d 1074, 1098 (D.Or. 1999) (quoting NRDC v. Duvall, 777 F.Supp. 1533, 1539 (E.D.Cal. 1991)) (internal citations omitted). Allowing an agency to couch technical analysis in vague citations to other material violates NEPA and the Council on Environmental Quality Regulations.

The basic methodological structure of the wildlife analysis is questionable, for it largely eschews site-specific analysis for the use of generic “indicators” as a proxy for impacts which can be easily compared (arithmetically) across alternatives. See, FEIS at 108 (stream crossing #s across alternatives). This approach is questionable, as it utterly fails to connect route existence (or use) to habitat or site conditions (e.g. soil type, slope, mitigation) so as to intelligently portray actual impacts. Many other analyses lack even this level of rigor. For example, the FEIS purports to analyze impacts to Merriam’s Turkey by generally stating that turkeys are susceptible to human disturbance at nest and roost sites, by promising that new routes will not be constructed without further analysis, and by generally concluding that “fewer routes is better” for turkeys. FEIS at 130. This conclusion is devoid of any citation to any source(s) for the multiple “technical” conclusions it advances. There is no attempt to identify nest or roost sites in relation to any route. Among the more robust analyses attempted is that for elk, perhaps as a result of the iconic and economic importance of the species in Colorado and the availability of HE and HABCAP modeling. Whatever the value of these and similar tools, none have ever adequately considered an intuitively obvious factor – what are the relative impacts on elk occurring from “purely recreational” motorized travel, versus “nonmotorized” use which includes bipeds vigorously pursuing (and occasionally killing) elk from horses, mountain bikes, and on foot? Even the elk analysis is perhaps best understood through the old adage about lies, damn lies, and statistics.

Finally, none of the analyses, even the most rigorous, provide hard data or other comparable material to facilitate meaningful public review.
These procedural defects condemn the Decision’s technical analysis. Further review should occur on remand or in subsequent analyses, and any technical materials, including underlying data, should be made fully available for public review and comment.

H. Specific Technical Conclusions are Arbitrary and Capricious.
Site-specific decisions are apparently behind many, if not all, of the specific designations within the Decision. However, the agency has generally failed to present the rationale for individual routes. The only real insight to this process is afforded by the ROD, which summarizes the agency analysis for a number of the more complex (or controversial) routes. See ROD at 20-38. There are several problems with this approach. For many routes, which are not included among those discussed in the ROD’s summary, the public has no insight whatsoever into the agency’s analytical process. Further, even for the routes which are identified in the ROD, the discussion occurs after the close of comment and therefore a post hoc justification of an agency decision.

Appellants cannot and will not attempt to “prove the negative” regarding such routes. Appellants request, on remand or in ongoing analysis, that closures motivated by wildlife, watershed or other “technical” conclusions be specifically identified. This should include direction to the Forest to reconsider the designation status of the route segments identified, as well as any segments which were not designated for use but for which no justification is presented.

I. Any Decommissioning Requires Additional Analysis.
It is unclear whether, when or how the Forest intends to consider decommissioning of any existing routes that are not designated for motorized travel in the Decision. The topic of decommissioning is not addressed in the discussion of alternatives. However, Table 3-61 provides detailed estimates of decommissioning costs for “work [to] be performed over a 3-year period.” FEIS at 267. Appellants therefore must err on the side of procedural caution and specifically object to any decommissioning effort which tiers solely (or primarily) to the Decision.

The act of decommissioning is a site-specific action which itself requires commensurate site-specific analysis, far beyond that attempted by the Decision. An existing route not formally designated in this process cannot immediately be slated for decommissioning, at least not using methods involving ground disturbance, until a suitable project-level NEPA analysis has specifically analyzed that project and its associated effects on the human environment in the context of that route. To amplify and support this point, we attach as Exhibit B hereto an administrative appeal decision dated January 27, 2000, issued by the Intermountain Regional Office.

Appellants seek reaffirmation from the Forest (or Appeal Deciding Officer) that the Decision does not address decommissioning and that any decommissioning will be preceded by appropriate site-specific analysis.

J. The Decision is Incorrect Regarding Implementation Timing.
The ROD incorrectly states that implementation of the Decision can occur upon publication in the Grand Junction Sentinel, the GMUG paper of record. The regulations plainly state that where an appeal is filed, “implementation may occur on, but not before, the 15th business day following the date of appeal disposition.” 36 CFR § 215.9(b). “Appeal disposition” in this context will be “a written appeal decision.” 36 CFR § 215.2. The Decision cannot be implemented as stated in the ROD.

IV. ROUTE-SPECIFIC CHANGES REQUESTED
In addition to, or in specification of, the aforementioned appeal issues, Appellants request the following changes to the ROD for specific routes: (1) Eyre Basin. The Decision fails to recognize the potential value of this route. The primary justifications identified in discussions with Appellants have been ROS settings and private property concerns. The ROS issue can be addressed by a plan amendment, which the agency has failed to even consider. The private property issue is beyond the scope of the present analysis, and rings particularly hollow when the current property owner is a member of Appellant organizations who is willing to work toward a mutually beneficial arrangement which would facilitate ongoing public access.

(2) Doctor’s Park. The closure based on purported impacts to bighorn sheep is not supported by the data or reasoned analysis.

(3) 4WD Road – Northeast Teocalli Ridge. This route is apparently missing from the FEIS inventory, but has long existed and receives use from both motorized and mountain bike riders. This route should remain open for all use, in that it will reduce some of the traffic on trails #554/557.

(4) Antelope Creek/Land End areas. The current FEIS map shows this trail as being decommissioned. This trail (an old 4WD road) is used by both mountain bike and motorized riders as an alternative to the jeep road (818). In fact in the last few years the Forest has recognized this trail as open to motorized use by signage and trail designation.

(5) Beaver Creek, FS trail # 447. The closure of this trail is of significant concern to the motorized community. This trail is the only single track access off the Lands End area. There is extensive historical use of this area, with closure and decommissioning of alternative routes. If stream crossing issues are the purported rationale, the agency has failed to consider reasonable mitigation options. Further, stream crossing impacts are typically attributable to the existence of a route far more so than travel upon it, and it seems arbitrary to restrict motorized travel while leaving the route in place for continuing use by other groups.

(6) Area south of Highway 50. A number of changes were proposed but largely ignored, some of which include BLM lands or the interface between FS/BLM route sytems to allow loop riding and avoid dead ends, including: – Connect BLM route to FS 806 – Connect FS roads 789.2B to FS 775 to FS 854.2A

(7) The ‘Burn Trail’, which parallels the Taylor River from approximately Dinner Station Campground to Rocky Brook Road. This single track trail allows users to avoid the busy, and often times dangerously dusty, Taylor Park Road. The trail is nearly flat and easy to ride, with a minor climb on the North end at the road, which historically acts as an ATV barrier.

V. RELIEF REQUESTED In light of the foregoing, Appellants respectfully request the Appeal Deciding Officer expeditiously grant any and all of the following relief from the Decision:
(1) Withdraw the Decision;
(2) Remand the Decision for further analysis;
(3) Utilize the Part 215 appeal process to facilitate additional analysis of at least portions of the decision (such as specific routes or trail systems), with implementation staged or delayed as appropriate.

We specifically request the opportunity for informal disposition, oral presentation, and or any procedural opportunities provided for or consistent with the applicable regulations.

Sincerely,
MOORE, SMITH, BUXTON & TURCKE, CHTD
/s/ Paul A. Turcke Paul A. Turcke

August 13, 2010

District Court Denver County, Colorado
1437 Bannock Street, Room 256
Denver, Colorado 80202

Plaintiff(s):
Colorado Off-Highway Vehicle Coalition, a Colorado
nonprofit corporation; Lyle Borders; Jennifer L. Dent;Western Slope ATV Association, a Colorado nonprofit corporation; Trails Preservation Alliance, a Colorado nonprofit corporation; Mile-Hi Jeep Club of Colorado, a Colorado not-for-profit corporation; Timberline Trailriders, Inc., a Colorado nonprofit corporation; Thunder Mountain Wheelers, a Colorado nonprofit corporation; Colorado Motorcycle Trail Riders Association, Inc., a Colorado nonprofit corporation; San Juan Trail Riders, a Colorado nonprofit corporation
v.
Defendant( s):
Colorado Board of Parks and Outdoor Recreation

Plaintiffs, The Colorado Off-Highway Vehicle  Coalition (“COHVCO”), Lyle Borders, Jennifer L. Dent, Western Slope ATV Association (“WSATVA”), Trails Preservation Alliance (“TPA”), The Mile-Hi Jeep Club of Colorado (“MHJC”), Timberline Trailriders, Inc. (“TTl”), Thunder Mountain Wheelers (“TMW”), Colorado Motorcycle Trail Riders Association, Inc. (“CMTRA”), and San Juan Trail Riders (“SJTR”), by and through their attorneys, Trout, Raley, Montano, Witwer & Freeman, P.C., hereby state and allege:

I. INTRODUCTION
1. Plaintiffs challenge two recent actions by the Defendant Colorado Board of Parks and Outdoor Recreation (the “Board”) that radically alter the award of grants under the Colorado Off-Highway Vehicle Recreation Fund, C.R.S. § 33-14.5-106 (“Recreation Fund”).

Meeting in secret, Board members changed the process for reviewing Recreation Fund grant applications, and directed that Recreation Fund grant monies be divetled for non-recreational purposes well beyond those prescribed by the General Assembly.

Without prompt judicial intervention, the Board’s actions threaten to slash recreation oppotlunities for the owners of over 120,000 off-highway vehicles who pay into the Recreation Fund each year.

*Download the PDF to read the entire document

June 31, 2010
 
We had a great event….one long week of trail riding.

The 2011 dates for the event will be August 8 – 13.
For more info: www.colorado600.org

May 30, 2010

Addenda to Comments and Recommendations
Gunnison Basin Federal Lands Travel Management FEIS
COHVCO – TPA – RMEC

Dear Planning Team:

We have reviewed our previous COHVCO/RMEC/TPA Comments and Recommendations to the Gunnison Basin Federal Lands Travel Management FEIS of May 20, 2010, and thought it necessary to add some additional comments and clarification. 

We are still concerned with how the “Purpose of and Need for Action” statement in Chapter 1, pg. 15 sets up an expectation to: “determine the location and management of roads and trails needed for a transportation system that provides for resource protection, public safety, and recreation opportunities, meets access needs and is within the ability of the agencies to manage and maintain”.  This suggests an all modes of transportation assessment and disclosure of impacts including foot, livestock, and mountain bike uses within all parts of the planning area.   We understand that the 2001 Travel Decision did not address desired or suitable modes of travel for open routes on a route by route basis for motorized uses and mountain bikes.  However, by applying just the 2005 Road Rule process only (designation of motorized routes), it falls short of a full disclosure of  all recreation user affects in Chapter 3.  This is especially an issue in light of the continuing consideration for additional wilderness and roadless area designations or legislation in closely connected actions that affect the balance of transportation system opportunities.

We see no response to our concern for the need to portray, map, graph or chart recreation settings and opportunity classes by route and user type.  This FEIS maintains a focus on a quantitative analysis that attempts to “balance” just miles of opportunity, and does not deal with the quality aspects and the social benefit needs for a sustainable, traditional set of recreation users and settings. Just putting a copy of the ROS “handbook” in as Appendix “I” is not a full response to a requirement for a social assessment. 

The Purpose and Need for Action section states: “There is a need to reduce motorized route miles…in and effort to provide for a more sustainable transportation system”.  The Forest Service has apparently decided to apply the concepts of “sustainability” only to the budget, natural resources and economics of maintaining a system of  miles of roads and trails.  This is seen as a limited approach rather than an integrated, multiple-use approach that includes the sustainability of quality opportunities to meet the social needs of a mixed community of users.

There is a continued absence of any application of a required social assessment that would include a discussion about the sustainability of qualitative benefits to users and communities.  There continues to be no references to any social analysis science in Appendix J., and Issue #7 deals only with noise, dust, speed and some basic economics.

We have also heard from several of our  members that we did not provide adequate site-specific comments on some important routes that have long term historical use.  As such, we offer the following:

•    The South end of the Double Top trail system, 405, and it’s connections to trail 409, as well as 959 and 418, creates a loop system.  With the recommended use of trail 406 being downhill only, severely limits access from the South end of Cement Creek.  Access to 959 needs to be reestablished.
There is a short section of trail 787 from Spring Creek Pass at the very South end of the Gunnison NF that connects into the Rio Grande NF, and is marked for closure in the Preferred Alternative.  This trail this trail connects the Ramboulett trail/4wd route from the west side of Spring Creek pass to the east side, connecting an entire loop from Lake City to Creede.  Several motorcycle groups perform maintenance on this trail annually, as well as the local snowmobile clubs in the winter.  This trail connects to the RGNF Snow Mesa to Miners Creek trail. This is a significant trail system, similar to the Crest trail, that needs to stay as multi use.  The section in question is less than one mile long, so all user groups should be able to tolerate each other.  There is no reason to make a change the current designation.  This trail is motorized on the Rio Grande National Forest, but would be reduced to non-motorized in the Preferred Alternative.  Because of the interaction of the Colorado Trail, and CDNST with historical motorized routes in this area, provisions need to be made to maintain the existing motorized access.  It is an old road which the Snow Country Explorers groom for snowmobiling.  This small closure basically ruins a 30 mile single track trail from Creede to Lake City.  John Murphy should be in good position to reconsider this route, based on his RGNF experience.

•    On the Preferred Alternative, there is a need for a very short connector between road 859 (near where it connects with trail 574) and road 858.1B.  This section would only be a few hundred yards long, but allows the two segments of single track to be connected North to South.  This route also provides a potential exit from the Beaver Creek/April Gulch trail system.

•    Dispersed camping continues to be a hot issue for our members.  One particular point that we’ve heard about is the route that goes just East of the Pothole Reservoir Number 2 in Taylor Park.  This short spur takes campers to the edge of the forest, away from the noise, dust and activity on Taylor Park Road, creating a pleasant camping experience.  We believe that this is a perfect example of a road that has received no maintenance from the USFS, is nearly flat with no route damage concerns, serves a purpose to the public, and is being closed without adequate understanding.  This is but one of hundreds of spur routes that are being slated for closure, that deserve detailed investigation.

•    Our friends at the Taylor Park Trading Post, the Cranor family, have been in Taylor Park since the dam construction in the mid 1930’s.  They have numerous inholdings in the Park that they need access to.  One in particular is Pass Creek, where they have a spring and ditch.  The route is not only scheduled for closure, but appears to be scheduled for decommissioning.  The ROD needs to either maintain routes that lead to inholdings, or it needs specific language granting all property owners access to their property.  Failure to do so could result in an LEO issuing a ticket to the landowners for failing to abide by the MVUM, despite their legal rights to access. 

We feel that these concerns need to be addressed and responded to in the Record of Decision, as they are basic to the life style issues that form the basis arguments by all users and communities in the Gunnison Basin.  Your willingness to listen to, and respond to our input is appreciated.

Respectfully submitted by,

Colorado Trails Preservation Alliance
Don Riggle, President   
725 Palomar Lane
Colorado Springs, CO 80906-1086
(719) 633-8554    info@coloradotpa.org

Colorado Off –Highway Vehicle Coalition
Glenn Graham, President and Chairman
P.O. Box 62523
Littleton, CO 80125
(303) 249-9730    ggraham@cohvco.org

Rocky Mountain Enduro Circuit
Dennis Larratt, Treasurer
10990 N. Sunshine Dr.
Littleton, CO 80125-9432
(303) 470-5770    c (720) 530-9974 larratt@mho.com

May 10, 2010

Comments and Recommendations
Gunnison Basin Federal Lands Travel Management FEIS
COHVCO – TPA – RMEC

•The FEIS identifies the resultant travel plan as being sustainable.  We believe this is both factual, and consistent with the 2005 Travel Management Rule (TMR).  We have further comments on Sustainability later in our comments.
•Improvement in use of best available science
•Improved analysis in regards to Threatened and Endangered Species.
•Additional and more balanced reference to use conflicts.
•Importantly, allowing the Crest Trail, Agate Creek, and Lime Creek trail system to remain open to motorized, as it historically has been.  There are also a number of other motorized routes that are open on the FEIS Alternate 5 that were not open in the DEIS Preferred Alt.

While we still see room for improvement, we concur with Alternative 5 as the Preferred Alternative, even though Alternative 4 offers some additional motorized recreation mileage.

1.Despite the improvements in the FEIS, we believe that there is still significant merit to our comments on the DEIS.
 
WE HAVE CULLED OUR LIST OF CONCERNS TO THOSE LISTED BELOW, BUT ASK THAT THE PLANNING TEAM RE-READ OUR DEIS COMMENTS, IN PREPARATION OF THE ROD.

2. While significantly improved, the FEIS Summary (page 1), as in the DEIS, still exhibits some bias.  The BLM and U.S. Forest Service have a “mandate” to provide for multiple use and sustained yield of all resources…including outdoor recreation …that best meets the need of American people (Multiple-Use Sustained Yield Act, 16 U.S.C. § 528, and National Forest Management Act, 16 U.S.C. § 1604(e)).  By positioning “access needs for a variety of uses” on one end of a planning teeter-totter, against “the mandate for long-term sustainability of natural resources” on the other end, suggests an agency, predetermined, point of balance outside the mandate to also provide for sustainable services for the American people.  

One blatant example of bias against motorized use is found on Page 186, “The conversion of motorized trails to mountain bike trails in the Brush Creek and Cement Creek drainages would alleviate user density and conflict issues reported in this area. The growth in popularity of mountain biking and population growth in Crested Butte South and the Gunnison Basin in general has increased the demand for more non-motorized trails near residential areas that can be accessed quickly and easily and provide short, day-hike/bike opportunities.”  Despite the growth of motorized recreation, no such expansion of opportunity for motorized exists in the FEIS.  In fact, many historically motorized routes are closed, decommissioned, or converted to non-motorized use.

Another is located on Page 200, where it states: “Taken as a whole, there are many more motorized route opportunities in the analysis area compared to designed non-motorized trail opportunities.”  This is blatantly wrong when using the multiple use analysis (everything is open to hikers), and when the Wilderness Area trails and Crested Butte ski area trails are included.

It appears that the FS/BLM has accepted user built mountain bike trails without any EA/EIS actions (Example Ferris Creek area), and further more, listed this as mountain bike only the FEIS.  If this is going to be the accepted rationale for trail designation, then it should also extend to the pre-2001 motorized trails that are being closed, and they should be allowed to remain open.

In reviewing the FEIS, it appears that there has been more of a change in the USFS portion of the Plan than on the BLM side.  Despite the lengthy TMP process, the BLM now defers some decisions to a future RMP process.  We are left to hope that the RMP process results in a more balanced plan for motorized recreation.

WE ASK THAT RECREATION BE AFFORDED EQUAL STATUS WITH OTHER PUBLIC LAND USES IN THE ROD.

3. Page 9-10 is incomplete in its answer to “Why Replace the Current Travel Management Direction?   The Forest Service Travel Management Rule (November 9, 2005)(“Travel Rule”), clearly establishes the goal to enhance opportunities for motorized recreation experiences on National Forest system lands (FR Vol. 70, No. 216, 68264). This important reason has been omitted in this section of the DEIS and FEIS.  It also established the position of the Department, that “designations of roads and trails…should be based on accurate, pertinent unbiased information”.  The Department and the Rule did not require independent scientific review, nor supported that it had to be clearly proven to be harmless to the environment for roads and trails to be included (FR Vol. 70, No.216, 68266).

WE REQUEST THAT THE ROD CLEARLY INCLUDE THE DIRECTIVE TO ENHANCE MOTORIZED RECREATION DESCRIBED IN THE NOVEMBER 2005 TRAVEL RULE.

4.Page 9-10, Forest Service Travel Management Direction.  At the top of Page 10, the 2005 TM Rule is correctly referenced.  Yet there is a lack of identification of non-motorized opportunity in Wilderness areas (510 miles of trails) and on the Crested Butte ski area.  This omission is significant, as the Travel Management Plan is the only USFS tool that provides for the complete dissemination of this information, as the ‘to be determined’ Forest Plan process will presumably avoid site specific decisions.  This omission is further noted on Page 16 in Scope of the Project and Analysis.  The recreational experience, including quiet use, solitude and other elements that some non-motorized users value, need to be highlighted, and the total amount of opportunity for this type of recreation quantified.  Further, the agencies need to direct people seeking this experience to the 5 Wilderness Areas in the planning area.  It is an excuse to state that the Crested Butte trails are covered under the ski area special use permit, as it is still USFS land.

WE ASK THAT WILDERNESS AND SKI AREA TRAVEL OPPORTUNITIES BE ADDRESSED IN ALL SUMMARY INFORMATION ABOUT TRAVEL OPPORTUNITIES.

5.Funding of the road and trails system needs to be addressed more accurately.  Since 1994, for example, the Colorado State OHV program has provided over $1.6 million in grants to the Gunnison Basin area for trail maintenance and trail crews. These grants are summarized in Appendix I of our DEIS comments.  The Travel Rule (at FR, Vol. 70. No. 216, 68281) states that “volunteers and cooperators can supplement agency resources for maintenance and administration, and their contribution should be considered in this (TMP) evaluation”.  

On page 265, “Occasionally, the opportunity presents itself for grant funding, user-group funding, or volunteered hours for construction or maintenance of particular trail routes.”  This is a gross misrepresentation of the consistency and impact of the Colorado State OHV program to the Gunnison Basin.  The average grant income per year over the last 10 years is $150,692.  This compares favorably to the $144,700 annual amount shown in Table 3-61, page 267, for maintaining all USFS and BLM trails under the No Action Alternative.

There is a decided difference between grants applied for and received by the BLM and USFS in the Gunnison basin.  We are pleased that the new BLM management has embraced the program and has begun applying for grants from this program.

Each Colorado OHV Program Grant for specific trails includes an agreement to maintain the trail for motorized recreation for a period of 20 years.  A listing of the Colorado OHV Program Grants is provided in Appendix I of our DEIS comments.  It is obvious that a number of the trails that are slated for prohibition from motorized recreation are on this list.  Finally, the 2005 Travel Management Rule directs the USFS to look for mitigation opportunities.

In conjunction with the grants analysis, it is important for the ROD to include the latest Economic Impact Data, from the 2009 COHVCO study, which shows motorized recreation to account for $1 billion of economic impact.  All of the pertinent planning team members have received this data, and we will send another copy to Mr. Shellhorn to ensure its inclusion in the ROD.

WE REQUEST THAT THE PLANNING TEAM FAIRLY ACKNOWLEDGE THE OHV PROGRAM GRANTS, AND UNDERTAKE AN EFFORT WITH COHVCO AND TPA TO ADDRESS ANY MOTORIZED ROUTES THAT ARE BEING CONSIDERED FOR PROHIBITION TO MOTORIZED USE DUE TO MAINTENANCE FUNDING.  WE THINK THAT THERE ARE OPPORTUNITIES TO MITIGATE THESE ISSUES PRIOR TO DECISIONS IN THE ROD.   WE ALSO REQUEST THAT THE ROD BE UPDATED TO INCLUDE THE 2009 ECONOMIC IMPACT DATA.

6.Route Designation.  A number of relatively new, user created mountain bike trails were included in the Preferred Alternative near the Crested Butte area.  There is an acknowledgement that these trails serve a need.  The same is true of all user created motorized trails.  This analysis seems to have been lost on many of the motorized routes that are included in our list of site specific trails sited for closure that we would like re-assessed for inclusion in the ROD.

Our DEIS and Scoping comments offered a number of suggested new routes, and none are included.

WE REQUEST THAT ALL USER CREATED MOTORIZED ROUTES BE RECONSIDERED FOR INCLUSION IN THE ROD, WITH THE SAME MINDSET AS THE MOUNTAIN BIKE TRAILS NEAR CRESTED BUTTE.
 
7.Page 28. Future Demands.  It is clear that the Forest Service has failed to meaningfully consider viable alternatives to those formally analyzed in the DEIS and FEIS, as none of the alternatives show an increase in motorized opportunity over the No Action Alternative.  NEPA imposes a mandatory procedural duty on federal agencies to consider a reasonable range of alternatives to the preferred alternative.  40 C.F.R. § 1502.14 (“agencies shall rigorously explore and objectively evaluate all reasonable alternatives.”)  The alternatives section is considered the “heart” of the EIS and a NEPA analysis must “explore and objectively evaluate all reasonable alternatives.”  40 C.F.R. § 1502.14.  A NEPA analysis is invalidated by “[t]he existence of a viable but unexamined alternative.”  Resources, Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 1993).

On Page 45, it is noted that there are 31.4 miles of non-motorized future routes under consideration, and only 1.4 miles of motorized.  This mileage is exacerbated when the number of use days is factored in by use type.  To be proportional in terms of opportunity, the motorized needs to be 4-10 times as much mileage for equal amounts of recreational value.

WE RESPECTFULLY ASK YOU TO IDENTIFY AT LEAST 100 MILES OF POTENTIAL FUTURE MOTORIZED OPPORTUNITY.

8.Page 57. Tables 3-1 and  3-2. Miles of Motorized Routes by Erosion Risk Class and in Alpine Areas.  These tables shows only motorized routes.  Our concerns remain about the lack of science surrounding the impacts of mechanized, foot and horse use, and their lack of disclosure.

WE REQUEST A CORRECTION IN THE ROD, WITH A COMPLETE COMPARISON OF ALL TYPES OF USE BY EROSION RISK AND IN ALPINE AREAS, INCLUDING WILDERNESS AREAS.

9.Pages 111+, Chapter 3, Wildlife-Affected Environment. This section was extensive and based on species specific analysis with a focus on management indicator species (MIS).  Bias against motorized travel is again shown, as risks, ratings and habitat effectiveness are all based on motorized road and trail densities.  This effort, as with the water, soils, wetlands, and fish sections, is short of analysis and disclosure of the effects of hikers, hunters, mountain bike riders and other non-motorized recreation that tends to stress and impact wildlife.  It would seem that some better level of balance in literature reviews and a fuller disclosure of all user impacts would be appropriate here, for reference, go to:

An example of a single focus on just motorized recreation is the proposed closing of the Dr Park/North Bank Trail for bighorn sheep protection.  Closing the trail to motorcycles and not dogs, kids, and hikers, is unreasonable.  It the CDOW wants to protect the area, it should be closed to all users including closing the North Bank Campground at the west end of the area. We are not aware of any study or research in this area that documents motorcycle/sheep impacts.
   
WE REQUEST THAT THE ROD EVALUATE ALL IMPACTS, TO ACHIEVE MORE CONTINUITY AND PARALLELISM BETWEEN ISSUES AND AFFECTS, LITERATURE REVIEWS AND SCIENCE APPLIED.  WE FURTHER ASK THAT IF THE DOCTOR PARK/NORTH BANK TRAIL IS CLOSED TO MOTORIZED, THAT 1) IT BE CLOSED TO ALL USES, AND 2) THAT IF THE BIGHORN SHEEP HERD DOESN’T INCREASE BY OVER 20% IN THE NEXT 5 YEARS, THAT THE ROUTE REVERT TO MOTORIZED USE.  WE OFFER AN ALTERNATIVE IN OUR SITE SPECIFIC COMMENTS.
        
10.Page 158. Affected Environment-Recreation on BLM Lands.  The loss of 590 miles of road representing 35% of the opportunity for motorized recreation in the Proposed Alternative is a very significant change from historic use opportunities. It is another statistic that should be a part of a more fully disclosed Cumulative Effects analysis.   Even though some of these routes were lightly used, they were apart of a unique opportunity for a certain segment of motorized users and hunters.

In addition to the loss of hundreds of miles of road the effect of an area-wide closure of 191,000 acres is another significant change to recreation opportunities.  We fully support the objectives of the Gunnison Sage-grouse Conservation Plan (page 119).  However, we hope that the monitoring component in this plan will objectively evaluate the buffer areas needed for breeding and nesting requirements.  In particular, a 4.0 mile from lek (8 mile diameter) buffer to provide adequate breeding habitat seems on the surface as excessive.  We will take a look at the science and management alternatives associated with this Conservation Plan.

WE REQUEST THAT THE ROD REFLECT BOTH A CUMULATIVE EFFECTS ANALYSIS AND A MONITORING COMPONENT THAT ALLOWS FOR A PERIODIC ADJUSTMENT OF THE SEASONAL CLOSURES ON BLM LAND.

Page 265+. Comparison of Maintenance and Decommissioning Costs. Table 3-61   is a handy chart that gives some good insight into costs.  As noted in Item 5 above, the Colorado State OHV Program provides more in grants to the Gunnison Basin than is shown in the maintenance costs of trails.
 
We are very concerned that there may be budget alternatives, and grant programs that will shift limited resources to decommissioning and restoration programs, and further neglect the maintenance and recapitalization of the designated road and trail systems. A balanced budget strategy by the agencies is critical in this area to both rehab those areas of unacceptable resource damage and to maintain a road and trail system that serves both visitor and resource management needs.

It is our contention that the majority of routes slated for closure have not received any maintenance in the past 5-10 years, and maybe much longer.  This is certainly the case for virtually all of the spur routes of short distances.  The records of maintenance should be easily obtained and reported.

WE REQUEST THAT:
1) THE PLANNING TEAM UNDERTAKE AN EFFORT WITH COHVCO, AND THE TPA TO ADDRESS ANY MOTORIZED ROUTES THAT ARE BEING CONSIDERED FOR PROHIBITION TO MOTORIZED USE DUE TO MAINTENANCE/FUNDING, TO PROVIDE AN OPPORTUNITY TO MITIGATE THESE ISSUES PRIOR TO DECISIONS IN THE ROD;
2) THAT THE AGENCIES PROVIDE DOCUMENTATION ON THE MAINTENANCE EXPENSES FOR ALL ROUTES PROPOSED FOR CLOSURE IN ANY OF THE ALTERNATIVES
3) THAT NO GRANT APPLICATIONS BE SUBMITTED IN THE FUTURE FOR DECOMMISSIONING.
4) THAT NO DECOMMISSIONING OCCUR ON OUR LIST OF SITE SPECIFIC ROUTES, THEREBY AFFORDING A REASONABLE OPPORTUNITY TO REOPEN THEM, CONSISTENT WITH THE 2005 TM RULE.

11.    Multiple Use Analysis.  It is important that the public be made fully aware of the nature and quantity of multiple use routes.  We submit  the following as an example:
TABLE 1, AVAILABLE TRAIL MILEAGE BY RECREATION TYPE, WITH WILDERNESS

**    includes the ‘unmanaged recreation’ routes AND Wilderness routes

This highlights the restrictive nature of the Travel Management Plan on motorized recreation, and how much more trail mileage is available to non-motorized recreation forms.  The impact needs to be taken into context of how many miles per day these types of users travel.  As an example, it becomes clear that ATV’s get about 3 days of opportunity (50 miles/day), while motorcycles get about 5 days of opportunity (100 miles/day), mountain bikes get about 24 days (25 miles/day), horses get about 65 days of opportunity (20 miles/day), while foot travelers get about 130 days of opportunity (10 miles/day).  When the 510 miles of Wilderness trails are included, equestrian recreationists get over 90 days of opportunity and hikers get between 180-190 days of opportunity!

The point of this exercise is to remind the authors that additional mileage is warranted for motorized recreation, based on equitable need, financial support through grants and volunteer efforts.  The continual decline in available trail mileage continues to show a bias against motorized recreation.  It also results in concentrated use on the remaining routes, which provides fodder for the restrictive use groups to object to trail impact.  Greater dispersion would result in less impact and happier recreationists.

WE REQUEST THAT AN ANALYSIS IDENTICAL TO, OR VERY SIMILAR TO THIS BE INCLUDED IN THE ROD.

12. We identified several inconsistencies in the terminology regarding the 300’ exception for dispersed camping, with some being 300’ corridor, and some 300’ from the route.  We applaud the use of the exception, and ask that it be clarified as 300’ from the route (600’ corridor).

13. The 2005 Travel Management Rule has explicit language allowing for further review and study, confirming that closure decisions are not the last look.  We request that this language be included in the ROD.

14. Route Summary & Site Specific Comments.  We acknowledge and thank the planning team for accommodating some of our critical routes in the development of Alternative 5.  We consider the following routes to be the most critical to be open for motorized access:

• All motorized routes that are shown as open in Alternative 5 of the FEIS
• Eyre Basin
• Star Trail connector to Spring Creek, UT-8283
• Grassy, 562
• Waterfall Trail
• Crystal Peak
• Reno Ridge
• April Gulch – Beaver Creek
• Ferris Creek – Strand trail systems
• Matchless Mountain
• Lower Doctor Park to North Bank Campground
• Spur Trail and connectors (some shown closed)
• Trails 559 and 560
• Route 243.3E and 243.3C
• 584.1A provides non-motorized access to the historic Enterprise Mine
• 410.0A
• 580
• 878
• 465/472
• 538 to 913
• 677.3 and 677.3C
• 461
• Sawtooth Trail System, per Item 25, Appendix IV
a.County Road (Vulcan Rd) connect to FS trails 806 and 807, to County Rd. 149
• East – West Corridor FS 4WD 807 to BLM West Roads
• FS 4WD 808 to FS 4WD 821
• Gulch. Route 858 to 858.1 to Ohio Pass Road
• Low Line Trail Area 438 to BLM 818 (concern of illegal Wilderness buffer)
• 807 to 559
• 854 to 806
• Unnamed trail E. of Pearl Pass, past Friends Hut

Site Specific Comments

Eyre Basin. 

Our team has had numerous discussions with the planning team on this route.  The latest discussion resulted in us being told that keeping this open was incompatible with the 1983 Forest Plan.  However, a review of the 1983 Forest Plan http://www.fs.fed.us/r2/gmug/policy/plan_rev/current_plan/499.pdf , shows this area to fall within category 2A, and possibly a small area of category 7A and 7E, WHICH ALL INCLUDE SEMI-PRIMITIVE MOTORIZED RECREATION.  This trail is admittedly low use, high difficulty, and should be considered for downhill only use.  The difficulty level is an important part of the ROS.  Since the South end of the trail originates on private property, we have secured assurance that the land owner is open to a limited easement, if the USFS will ask for it, which it hasn’t.  We will facilitate this discussion!

#2  Doctor’s Park. 

Closure of this area based upon non scientific facts is not correct.  If the DOW is concerned about the sheep herd declining in this area, then we suggest THAT ALL ACCESS BE DENIED, WITH CLOSURE OF THE ENTIRE North Bank public area.  Hikers, dogs, and mtn bike use of this area have far more adverse impact on the sheep herd.  In fact, disease and bacteria carried by dogs and the open range aspect of historic cattle grazing should be evaluated as to the cause of the declining sheep herd.  The motorized community should not be penalized from unfounded theories.  There are university studies that show that limited motorized use does not affect wild animals… (See report), and that hikers, dogs, etc cause more of an adverse effect on wildlife. In addition significant amount of $$ and labor have been spent by the motorized community to make the trail what it is today.

WE SUGGEST THE FOLLOWING FOR THE DOCTOR PARK TRAIL:
o  All motorized and mtn bike traffic should be listed as down hill only.  Implement a seasonal closure that coincides with the sheep herd breeding and calving season.  
o  Hikers should be educated to not get off the established trail.  
o  Dogs should not be allowed.  
o  The open cattle grazing in the area should be curtailed.
o  Making the motorized community bear the entire burden for the sheep problem is not correct or fair.  This needs to be a binary decision – all or none!

The Northeast side of the Teocalli ridge has an existing old 4wd road now trail. The FEIS map does not show this current road/trail.  We suggest this remain open for all use, in that it will reduce some of the traffic on trails #554/557.  The mtn bike community and the motorized community use this trail when using the Pearl pass route.

Antelope Creek/Land End areas. 

The current FEIS map shows this trail as being decommissioned.  This trail (an old 4wd road) has been maintained by the motorized community for over 30 years.  It is used by both mtn bike and motorized as an alternative to the jeep road (818).  In fact in the last few years the FS has recognized this trail as open to motorized use by signage and trail designation.  We suggest that this short trail remain open for all user groups.  The only other access is by the 4wd road that is heavily used by jeeps/trucks. If there is an ES issue in this area, bridges can be built to reduce the impact of stream crossings…the same that is being done in the Pike NF.

Beaver Creek, FS trail # 447. 

The closure of this trail is of significant interest to the motorized community.  This trail is the only single track access off the Lands end area.  The lands end area at one time was a primitive 4wd road area, however extensive logging action has taken this area and turned it into a road area that any car can travel over.  The old 4wd roads were decommissioned and the smooth logging road was allowed to remain.  We think this was a significant mistake on the part of the land managers.  Regardless of history of the road, the Beaver creek trail has been maintained by members of COHVCO and the TPA for 35 years.  The issue of closing it now due to the State Parks land at the end should be totally reevaluated.  There are 2 streams crossing involved…one at bottom of April Gulch and the other at the end of the trail as it approaches the state owned lands. If the criteria for closure to motorized use are the stream crossings…all user groups have the same problem, whether it is horse, or mtn bikes.  The impact on the existing fish population is the same.  Any time you cross a stream potential damage can occur.  The motorized community requests that this area be re evaluated considering the following proposals. And be allowed to remain open.

o    A rustic bridge can be built at the end of the trail to cross over Beaver Creek to the west side.  Funding for this will could be by OHV state grant or the OHV community will fund the building of the bridge thru all ready existing funds.
o    A second alternative would be the opening of an existing trail to the east thru BLM land.  This trail is in existence today.   With minor work this trail could be made available to all user groups.  The history of accepting user built trails has already been implemented by the FS in the Ferris Creek area.  If the FS/BLM accepted user built trails in one area into the FEIS, then the Beaver Creek exit to the land end road should also be accepted.

The area south of HWY 50 included a number of our suggested OHV routes.  The BLM and FS chose not to adopt any of the suggested OHV route changes (all were 4wd suggestions listed in the DEIS comments).  We request that they be reconsidered as follows:
•    Connect BLM route to FS 4wd #806. Making a sustainable N S connection.
•    Connect FS roads 789.2B to FS 775 to FS 854.2A..Making a sustainable route and not dead end routes as our currently depicted on the FEIS map.

We reviewed the need for the ‘burn trail’, which parallels the Taylor River from approximately Dinner Station Campground to Rocky Brook Road (Spring Creek Res. Rd) with the planning team.  This single track trail allows users to avoid the busy, and often times dangerously dusty, Taylor Park Road.  The trail is nearly flat and easy to ride, with a minor climb on the North end at the road, which acts as an ATV barrier currently.  We ask that this route be included in the ROD.
 
Summary
We have enumerated thirteen points of weakness or failure in the FEIS, as well as noting a number of significant improvements in the FEIS.  We also noted other improvements and suggestions in a recent meeting with the Planning Team.  We ask that the planning team review our DEIS comments, which remain largely valid as well.

Every USFS and BLM Forest Plan, Resource Management Plan, and Travel Plan that we have studied and participated in throughout the Rocky Mountain region, have had a reduction of motorized opportunity, and this one is headed that direction.  It is wrong in terms of visitor demand, increasing population, and historical use.  The continued failure of the agencies to accommodate motorized use, while doing so for mountain bikes, with a lack of comparative scientifically based impacts, reflects the bias that we have noted repeatedly.  We ask that this bias be eliminated, and motorized recreation opportunity be maintained or enhanced from the No Action Alternative level.

We feel that Alternative 5, the Preferred Alternative, is viable for this Travel Plan, WITH our noted changes, and inclusion of additional mileage.  We offer to continue to work with the planning and recreation teams to come up with an alternative that is not punitive to the motorized recreation community, takes into account the issues we have raised, and utilizes multiple use and mitigation as primary tools, rather than last resort efforts.  We appreciate that our scoping comments, our DEIS comments, and the numerous meetings we have held with the agencies have had a positive impact, and we hope to work together to come up with a workable plan in the final ROD.

Respectfully submitted by,

Colorado Trails Preservation Alliance
Don Riggle, President    
725 Palomar Lane
Colorado Springs, CO 80906-1086
(719) 633-8554    info@coloradotpa.org

Colorado Off –Highway Vehicle Coalition
Glenn Graham, President and Chairman
P.O. Box 62523
Littleton, CO 80125
(303) 249-9730    ggraham@cohvco.org

Rocky Mountain Enduro Circuit
Dennis Larratt, Treasurer
10990 N. Sunshine Dr.
Littleton, CO 80125-9432
(303) 470-5770    c (720) 530-9974 larratt@mho.com
 

May 7, 2010

Dennis Larratt Comments to State Parks Board,

May 7, 2010

Representing the Rocky Mountain Enduro Circuit and Colorado TPA

1. The Colorado OHV Registration Program is a nationally recognized model program for responsible OHV recreation, maintenance, and education.
2. The Colorado OHV community has been the leader in the following:
   1. writing the OHV Registration Act, and obtaining a fee increase
   2. working cooperatively with State Parks on implementation and continuous improvement in the program
   3. writing Sound Level legislation
   4. cooperating with other groups in developing enhanced enforcement legislation
3. The Colorado OHV Program does not need a major revision for the following reasons:
   1. It has proven successful, as attested by increasing registrations, the letter just received by Mr. Winstanley from ALL Colorado Forest Supervisors, and the BLM.
   2. But all programs can improve, and we are not opposed to the proposal put forth by State Parks staff on Strategic Planning (November – April)
   3. The OHV Program passed the recent audit in better shape than most State Parks programs
4. There are a group of anti-motorized groups that have been trying to reduce the effectiveness of the program, and get effective control of it very actively for over a yea
   1. To this, I encourage you to ask why the same groups don’t spend the same amount of effort in trying to establish mountain bike and hiking programs that work with the same vigor as the OHV community in partnering with State Parks to generate funding for trail improvements.
   2. Look at the Law Enforcement statistics:
      1. HB 08-1069 reports shows DOW only wrote 20 citations and 5 warnings in a year.
      2. State Parks master database shows that State Parks, BLM and USFS citation rates continue a 5 year rate of decline, which is a clear indication of improved compliance, despite increased law enforcement efforts.
5. One of the proposals before the Parks Board is to revise the OHV Subcommittee.
   1. This is not needed, as everyone except the anti-motorized crowds have been largely satisfied with the performance of the subcommittee.
   2. Putting 3 anti-motorized members on the board, with veto power would be akin to putting 3 members PETA and/or ASPCA on the Wildlife Commission with veto power.
   3. If you are revamping the OHV Subcommittee, the State Trails Committee and all other subcommittees should receive the same scrutiny at the same time.
6. Summary – Please leave a good thing alone.