The Three Forests Coalition
"We may be in [an] era where rapid expansion and availability of motorized recreation calls for a whole new era of protection of terrestrial species and ecosystems."
-- Barrie Gilbert (2003)
September 19, 2005
Dale Deiter, OHV Team Leader
Fishlake National Forest
115 East 900 North
Richfield, UT 84701
comments-intermtn-fishlake@fs.fed.us.
Re: "Fishlake OHV Route Designation Project DEIS"
Dear Dale,
Thank you for this opportunity to comment on the Fishlake OHV Route Designation Project Draft Environmental Impact Statement (DEIS). The Grand Canyon Trust, The Utah Environmental Congress, Wildlands CPR, Red Rock Forests, Southern Utah Wilderness Alliance, Sierra Club - Utah Chapter, The Wilderness Society, Western Watersheds Project - Southern Utah, The Wild Utah Project and The Bear River Watershed Council, as organizations participating in Three Forests Coalition (TFC) submit the following comments on the DEIS.
Our comments address a number of concerns with the DEIS and the process the "OHV Route Designation Plan" has followed thus far. The Three Forests Coalition is concerned, as outlined below, with Inadequate analysis of a broad range of alternatives; inadequacies in the analysis of native wildlife, socio-economic issues, user conflict and use patterns, and manageability and implementation, inadequate route-by-route analysis, and inadequate application of the minimization criteria found in pertinent ORV Executive Orders, as well as inconsistencies with the current Forest Plan and other enabling regulations. TFC is also providing site-specific comments, supplemental information and photos as a separate attachment. Some routes and areas that have special problems that are largely ignored by the Forest Service in the DEIS and modified proposed action.
Attachment A, "Key Scientific Documents Relevant To Dixie, Fishlake, And Manti-La Sal National Forest Management For Sustainability" is a reference list to (1) documents and (2) annotations of each document that were provided to the Fishlake NF Planning Team (Frank Fay) during 2004. Those references highlighted in yellow are particularly relevant to the economic and environmental analysis of ORV route/use alternatives. None have been acknowledged or cited in the Fishlake OHV Draft EIS. These documents are incorporated by reference in the Three Forests Coalition comments on the OHV Draft EIS; the Forest has hard copies of all these documents.
As of September 18, 2005, Fishlake NF Supervisor Mary Erickson has still not responded to sixteen questions submitted to her and the planning team on June 28, 2005 by the Three Forests Coalition. These questions asked her intent regarding retention of the natural heritage (native biodiversity and habitat) on the Fishlake NF, and this bears on the fundamental intent for management of ORVs on the Fishlake NF.
While it is admirable that the Forest Service seeks to ban most cross-country travel on the Fishlake in compliance with the proposed national OHV Rule, the rush to do so through a process that unnecessarily narrows the scope of travel planning to "OHV Route Designation" falls short of the needs of motorized and quiet recreationists, native wildlife and their habitats, and other affected resources. Though the Fishlake NF has rejected the idea, we feel an Emergency Closure Order signed by the line officer of the Fishlake presents the best option for immediate closure of the Forest to cross country travel. Similar orders have been applied on the Ashley and Uinta National Forests in Utah recently, with little or no backlash from affected parties.If the Forest Service truly believes that cross country travel associated with "play" areas, game retrieval, and shed hunting is an urgent problem that must be addressed before Forest Plan revision and before comprehensive travel planning, an Emergency Closure Order from the supervisor banning such uses while exempting use on existing routes and limited open areas while travel planning occurs is the most immediate and effective way to halt cross country travel.
In our comments, the Three Forests
Coalition will show that the Forest Service has arbitrarily and capriciously
rejected at least two viable, reasonable alternatives formulated by members of
TFC known as the "Comprehensive and Subset Natural Heritage
Alternatives". We believe the Forest Service must release a supplemental
DEIS fully analyzing the Natural Heritage Alternative. Additionally, serious
issues raised by the DEIS must be given a harder look in the FEIS, particularly
concerns raised here that are pertinent to wildlife, economics, user conflict,
implementation, monitoring, manageability and enforcement.
PURPOSE AND NEED
A. The Forest Service Arbitrarily Narrowed the Purpose and Need of the OHV Route Designation Project
NEPA requires agencies to prepare a "purpose and need" statement that "specif[ies] the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 CFR §1502.13. Essentially, the proposed action is derived from the stated purpose and need. According to the Forest Service (DEIS 10) the purpose and need for the OHV Route Designation Project is to:
1) address the immediate need to better manage motorized cross-country travel,
2) create an implementable user-friendly motorized travel plan that is simple to understand and is consistent (seamless) as possible with adjacent public lands,
3) create a travel plan that is inherently easy to enforce to the fullest practical extent,
4) better accommodate current motorized use while addressing concerns related to future growth,
5) reduce the potential for motorized conflicts and impacts to other resource uses and values, and
6) increase user certainty about which roads and trails are part of the managed system of motorized and non-motorized routes.
DEIS at 10. Apparently, much of this purpose and need stems from the fact that "[m]any motorized users are not aware that much of what they consider as the 'existing' motorized system has not recently or in some cases ever been legally declared as open to motorized use." DEIS at 12. Despite the seemingly broad nature of this statement of the Forest Service's purpose and need, the Forest Service's interpretation and formulation of alternatives fails to allow for the development of alternatives that adequately address the identified needs.
Rather, the Forest Service restricted its formulation of alternatives to meet this purpose and need to actions classifying currently unclassified routes. By narrowing the proposed alternatives in this manner, the Forest Service failed to consider feasible and prudent alternatives such as the Natural Heritage comprehensive and subset alternatives. Federal courts have been clear that the range of reasonable alternatives to be considered in an environmental impact statement depends on the purpose of the project. Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815-16 (9th Cir. 1987) (impact statements must consider all reasonable alternatives that accomplish project purpose, but need not consider alternatives not reasonably related to purpose).
However, an agency's discretion to determine the purpose and need of a
project is not unfettered. The courts will scrutinize and reject an agency's characterization of a project's purpose and need if it results in overly narrow formulation of alternatives. In Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 814 n.7 (9th Cir. 1999), the court explained that the agency's proposed interpretation of its purpose and need was too narrow to satisfy NEPA, because it restricted the scope of reasonable alternatives too tightly, down to one or two choices.
The Forest Service appears to acknowledge the narrow characterization of its purpose and need. In its Roads Analysis Report -- Supplement (RAR Supplement), the Forest Service articulated the need for a "narrowly defined Purpose and Need" in order to transition to the new travel plan expeditiously. RAR Supp. At 35. However, by taking this narrow approach, the Forest Service has eliminated from consideration feasible and prudent alternatives that more effectively and comprehensively respond to the stated purpose and need.
Accordingly, in a new draft EIS, the Forest Service must formulate and consider alternatives that meet the purpose and need for the ORV Route Designation Project that are not restricted simply to the classification of currently unclassified roads. In so doing, the Forest Service must analyze alternatives to the existing travel system and consider actions to address indirect impacts of the use of this travel system, for example dispersed camping and the continued proliferation of user-created routes.
B. The Forest Service Failed to Analyze Sufficiently Whether the Alternatives Would Respond to the Purpose and Need
The analysis of the actions considered by the Forest Service to respond to the purpose and need of the route designation project fails to provide any assurance that the concerns raised by the Forest Service will be adequately addressed. In part, as discussed above, this is a failing of the Forest Service's formulation and consideration of alternatives. In addition, this inadequacy is the result of a lack of substantive analysis and reliance on false or undocumented assumptions. As such, serious questions are raised concerning the ability of the preferred alternative to respond to the purpose and need, including:
· Given funding deficiencies relating to enforcement, maintenance, and signing, how does classifying hundreds of miles of unclassified roads "address the immediate need to better manage motorized cross-country travel?" Rather, in response, why couldn't the Forest Service close the Forest to cross-country travel, restrict travel to the current classified system, and add trails following assurance of adequate analysis and funding?
· How does adding hundreds of miles of classified routes to the Forest Transportation System create "a travel plan that is inherently easy to enforce to the fullest extent practicable?" Other Forests with designated travel systems acknowledge the lack of ability to enforce the restrictions and the continued proliferation of user created trails.
· Is the proposed project truly "simple to understand?" For example, the Forest Service indicates the proposed dispersed camping exemption states that: "travel must occur on an existing route within the specified distance from an open designated route. (emphasis added) The exemption permits travel off of a designated route, but not off an existing route." Hasn't confusion over existing versus designated routes already been identified as a problem? Routes pioneered on one wet weekend become "existing" in they eyes of many ORV users.
· Without sufficiently detailed site-specific analysis and application of the minimization criteria on a route-by-route basis, how will this action "reduce the potential for motorized conflicts and impacts to other resource uses and values?"
The Forest Service must succinctly analyze the ability of the alternative to respond to the purpose and need of this project. Moreover, based on the considerable problems associated with the existing conditions, the Forest Service must consider alternatives more responsive to natural resources and other stated needs on the Forests. The Line Officer must sign an Emergency Order closing the forest to cross country travel, then conduct comprehensive travel planning.
ALTERNATIVES
NEPA requires federal agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternate uses of available resources." 42 U.S.C. § 4332(E). "The alternative analysis is characterized as 'the heart' of the environmental impact statement." Colorado Envtl Coalition v. Dombeck, 185 F.3d 1162, 1175 (10th Cir. 1999)(citing 42 C.F.R. § 1502.14). Courts apply a "rule of reason" analysis to determine whether the range of alternatives an agency considered, "and the extent to which it discuss[ed] them," was adequate. Utahns for Better Transportation v. U.S. Dept. of Transportation, 305 F.3d at 1152, 1166-67 (citing City of Grapevine v. Department of Transp., 17 F.3d 1502, 1506 (D.C. Cir. 1994)). A reasonable alternative is one that is "non-speculative . . . and bounded by some notion of feasibility." Id. at 1172 (citingVermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 551 (1978)) (additional citations omitted).
In particular, agencies must consider alternatives that are more consistent with the agency's mandate. In Muckleshoot Indian Tribe v. U.S. Forest Service, the Ninth Circuit remanded an EIS to the agency based on its failure to consider alternatives to a land exchange that imposed restrictions on the traded land. 177 F.3d 800, 813 (9th Cir. 1999). The Ninth Circuit was "troubled" that "the Forest Service failed to consider an alternative that was more consistent with its basic policy objectives than the alternatives that were the subject of final consideration." Id. (citing Seattle Audubon Society v. Mosely, 80 F.3d 1401, 1404 (9th Cir. 1996).
According to the Seventh Circuit, if "NEPA mandates anything, it mandates this: a federal agency cannot ram through a project before first weighing the pros and cons of the alternatives." Simmons v. U.S. Army Corps of Engineers, 12 F.3d 664, 670 (7th Cir. 1997). Moreover, "in examining alternatives to the proposed action, an agency's consideration of environmental concerns must be more than a pro formal ritual. Considering environmental costs means seriously considering alternative actions to avoid them." SUWA v. Norton, 237 F.Supp.2d 48, 51 (D.D.C. 2002) (citing Calvert Cliffs Coordinating Comm., Inc. v. U.S. Atomic Energy Comm., 449 F.2d 1109, 1128 (D.C.Cir. 1971)).
The detailed analysis of alternatives is essential to NEPA's statutory scheme and its underlying purpose to "provid[e] a clear basis for choice among options by the decision-maker and the public." 40 C.F.R. 1502.14; see also 42 U.S.C. § 4332(2)(E); 40 C.F.R. §§ 1507.2(d) & 1508.9(b); CEC v. Dombeck at 1174 ("What is required is information sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned") (quotation marks and citation omitted). Ultimately, NEPA's alternatives mandate means that "no major federal project should be undertaken without intense consideration of other more ecologically sound courses of action . . . ." Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 1135 (5th Cir. 1974)(emphasis added); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988), cert. denied, 489 U.S. 1066 (1989) (the alternatives requirement guarantees that agency decision-makers "[have] before [them] and take into proper account all possible approaches to a particular project . . . which would alter the environmental impact and the cost-benefit balance) (emphasis added); Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995).
So important is the alternatives requirement that "the existence of a viable but unexamined alternative renders an environmental impact statement inadequate." Alaska Wilderness v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995); see also, Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1288 (1st Cir. 1996) (EIS invalid because agency did not consider alternative of using artificial water storage units instead of a natural pond as a source of snowmaking for a ski resort);Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999) (quoting Dubois, 102 F.3d at 1287).
Of particular importance to the Fishlake OHV Route Designation Project, is the obligation that "[a]s one aspect of evaluating a proposed course of action under NEPA, the agency has a duty to study all alternatives that appear reasonable and appropriate for study, as well as significant alternatives suggested by other agencies or the public during the comment period." Dubois, 102 F.3d at 1286 (citing numerous others). The conservation community has presented to the Forest Service a number of feasible, prudent, and implementable alternatives that adequately respond to the need for this project and sets forth a balanced vision for travel management. To ensure consideration in the DEIS, the conservation community submitted not only a thorough long-term transportation vision and management alternative for the Forest, but also a subset alternative that conforms to the unreasonably narrow criteria established by the Forest Service, namely that only classification of unclassified routes is the action. Nonetheless, the Forest Service arbitrarily and capriciously eliminated the conservation community's alternative from consideration. In so doing, the Forest Service violated NEPA and rendered the DEIS inadequate under law.
The Forest Service is required to provide an explanation of why alternatives were eliminated from consideration. 40 C.F.R. 1502.14 . To be clear, the Forest Service failed to provide an adequate basis for eliminating the Natural Heritage subset alternative from consideration The development Natural Heritage alternative followed the Forest Service's articulation of the narrow criteria upon which alternative would be developed. Nonetheless, without adequate reason, the Forest Service failed to consider this "significant alternative" representing the collaborative efforts of Utah's conservation community. See Dubois, 102 F.3d at 1286.
The Natural Heritage Alternative (NHA), if analyzed, would present a true range of alternatives. The NHA takes the issue of classifying unclassified routes seriously, instead of ducking the issue by issuing a map that designates nearly every route, track, and overgrown route prism. The NHA considers wildlife, habitat, conflict, and redundancy before classifying routes. The NHA is a true conservation alternative based on conservation biology. The so-called "Non-Motorized Emphasis" alternative, #4, in not significantly different from the modified proposed action alternative. According to mileage calculations and buffer analysis included, respectively as Attachments C and E, in this document, there is an insufficient range among the alternatives analyzed in the DEIS. Conservationists have worked closely with the agency from the beginning of this process to create a truly meaningful alternative focusing on retention of natural heritage, not simply "Non-Motorized Emphasis". Even as titled, the "Non-Motorized Emphasis" alternative "emphasizes" nothing of the kind. Still grossly tilted toward the satisfaction of demands presented by ATV community, the name "Non-Motorized Emphasis" implies a meaningful level of difference from the modified proposed action that is simply evident upon examination of details. Simply re-branding the proposed action with a few token closures here and there does not make it a true conservation alternative.
The Forest Service averred three
rationales for eliminating the Natural Heritage subset alternative, each of
which is without basis and arbitrary. First,
the Forest Service contends that "[n]either option provides an exemption for
dispersed camping." DEIS at 83. As an initial matter, as discussed below,
this justification fails to conform with NEPA's segmentation and cumulative
impact requirements. In addition, the
Forest Service fails to indicate exactly how it reaches this conclusion
regarding the Natural Heritage subset alternative. The only mention of dispersed camping in the criteria utilized to
develop the Natural Heritage subset alternative is under "Key Conditions of ORV
Routes and Uses," which states "lack of
facilitated harm, e.g., to riparian areas by dispersed camping associated with
a designated ORV route." This phrase
conforms to the Forest Service's stated acknowledgment of impacts around some
dispersed camping areas (see below) and does not provide an appropriate or
adequate basis for eliminating this alternative. What is the purpose of
the150-ft. buffer zone from the centerline of all routes?
Rather than have this 300-foot-wide sacrifice area along all motorized routes,
the Forest Service should designate several campsites, or implement the buffer
zone along a few, specifically-suited routes in which informal camping
currently occurs and where resources will not be impacted by cross-country
travel.
For example, the Forest Service states, "The majority of motorized impacts are occurring during hunting season and spring antler shed gathering, in play areas next to communities, and around popular dispersed camping areas." DEIS at 9. Moreover, the Forest Services decision to evaluate dispersed camping in "separate NEPA analyses" does not warrant elimination of the subset alternative, as this decision to segment the analysis does not justify complete elimination of a viable alternative. Rather, if the Natural Heritage subset alternative results in the potential closure of 44 percent of existing dispersed campsites, the re-opening and access of these sites could be evaluated "in separate NEPA analyses," just as easily as reclamation or access needs of the 15 or 30 percent of dispersed campsites that the Forest Service recognized required additional analyses under the evaluated alternatives. RAR Supp. at 36 ("A portion (15 to 30 percent depending on the alternative) of existing dispersed campsites are located further than 150 to 300 feet from designated open routes. These sites will need to be evaluated to determine whether the route needs to be designated to the site or the site should be reclaimed." Said another way, the Forest Service should exercise the precautionary principle embodied by the subset alternative in recognition that the "majority of motorized impacts are . . . around popular dispersed camping areas" by closing environmentally harmful areas first and then reopening areas as appropriate. DEIS at 9.
Moreover, the reasoning suggested by the Forest Service reveals a fundamental flaw with the DEIS. Essentially, the Forest Service assumed that all routes in or around dispersed campsites must remain open or be designated as open. Thus, dispersed camping drove the formulation and consideration of alternatives, but according to the Forest Service, is outside the scope of the DEIS. See e.g. DEIS at 78 ("Alternative 4 results in a loss of motorized access to almost 20 percent of the Forest's inventoried dispersed campsites, which is outside the intent of the route designation project"). The Forest Service can't have it both ways by eliminating any analysis of the impacts of dispersed camping, while making it a key element in the formulation and consideration of an alternative they devise.
In addition, the Forest Service's purpose and need is silent as to the necessity to allow continued dispersed camping on nearly all of the myriad existing dispersed campsites. Rather, the Forest Service indicates that a fundamental need for the action includes the necessity to "reduce the potential for motorized conflicts and impacts to other resources uses and values." DEIS at 10. Clearly, since the "majority of motorized impacts are occurring . . . around popular dispersed campsites" the Forest Service must reclaim certain dispersed campsites in order to meet the pronounced need. As such, even if 44 percent of existing dispersed campsites are no longer available, the Forest Service may be able to meet its purpose and need, especially if the Forest Service created additional environmentally appropriate designated camping areas. However, until the Forest Service sufficiently analyzes the subset alternative, the potential for an appropriate balance is unanalyzed.
As a second rationale for eliminating the Natural Heritage subset alternative from analysis, the Forest Service suggests "the proposal was sent in too late to be evaluated by the ranger districts and the interdisciplinary team and would have added months of analysis time to prepare the DEIS." DEIS at 84. The Forest Service's assertion is unfounded for several reasons. First, the Forest Service's NEPA obligations are clear that feasible and prudent alternatives must be evaluated as part of the agency's analyses. This includes "significant alternatives" proffered by the public. The conservation community has undertaken substantial effort to present the Forest Service with a balanced and thorough alternative that resulted from extensive field and GIS research and collaboration with the planning team. This subset alternative was developed following several meetings with the Forest Service indicating that the Coalition's more comprehensive alternatives offered during scoping failed to meet the unreasonably narrow scope of the project. The Forest Service established certain deadlines for the conservation community to present a single, feasible and analyzable alternative. The conservation community upheld its end of the bargain by presenting the subset alternative to the Forest Service on March 3, 2005. The Forest Service released the DEIS in early August, nearly 5 months after submission of the subset alternative. As such, the Forest Service had ample time to analyze the subset alternative, especially considering that the bulk of analysis relates to road mileage comparisons camping, while making it a key element in the formulation and consideration of an alternative they devise.
Moreover, the Three Forests Coalition was under no obligation to submit the Natural Heritage alternatives during scoping, although the Coalition did in fact submit the more comprehensive alternative during scoping. The scoping process allows the Forest Service to "[d]etermine the scope and the significant issues to be analyzed in depth in the environmental impact statement" and "eliminate for detailed study the issues which are not significant or which have been covered in prior environmental review." 40 C.F.R. § 1501.7. Accordingly, the focus of the scoping process is to define the issues necessitating analysis in an EIS. All issues addressed by the subset Natural Heritage Emphasis Alternative (but not addressed by Alternatives 1-4) were present in the comprehensive Alternative the Three Forests Coalition presented during scoping.
The NEPA process anticipates the development and consideration of alternatives after the scoping process. For example, the Forest Service is required to respond to public comments by taking action to "develop and evaluate alternatives not previously given serious consideration by the agency." 40 C.F.R. § 1503.4(a)(2). Accordingly, the Forest Service should re-issue the DEIS with analysis of the subset alternative. Delaying analysis until the FEIS is insufficient for several reasons.
First, it ensures that the subset CNHA could not be implemented, as the public has not had the chance to comment sufficiently on the alternative. Second, based on experience, delaying consideration until the FEIS allows for fundamental misinterpretation of the alternative without an opportunity for correction. For example, the Three Forests Coalition (TFC) submitted in March 2004 a Sustainable Multiple Use Alternative during the scoping period for the Wasatch Plateau 31-sheep allotment term grazing permit EIS (Manti-La Sal NF) and in April 2004 a Sustainable Multiple Use Alternative during the scoping period for the Tushar Range 8-allotment cattle term grazing permit EIS (Fishlake NF). Neither Forest included the Alternative in their respective DEISs. Following the DEIS comment periods, the Fishlake NF decided to issue a second DEIS that would analyze the SMU Alternative. However, the Manti-La Sal NF decided to jump directly to a Final EIS (FEIS) that would analyze the SMU Alternative. Subsequently Region 4 USFS persuaded Fishlake NF to follow the Manti-La Sal NF decision and merely issue a Final EIS, for the sake of consistency across the Region.
In July 2005, the Manti-La Sal NF issued its Final EIS for the 31 sheep allotments. The FEIS fundamentally distorted the SMU Alternative, interpreting one minor element in the Alternative (i.e., that "key" mule deer fawning habitat would be unsuitable for sheep grazing) to mean all mule deer summer habitat (i.e., most of the entire allotment analysis area) would be incapable of sheep grazing. This, in combination with falsely claiming the SMU Alternative rendered all goshawk and riparian habitat incapable for grazing (the Alternative did not say that), the FEIS claims that under the SMU Alternative, zero sheep grazing would take place on 88.6 percent of the 31-allotment area. This arbitrarily rendered the SMU Alternative unreasonable. and allowed the Forest to wholly avoid comparison of the many differences between the SMU Alternative and the Forest Alternative.
Because these errors were embodied in an FEIS rather than a DEIS, the Forest is now unable to effectively respond to public comments that the Sustainable Multiple Use Alternative has been distorted and to fully analyze the alternative without publishing a new Draft EIS or a Supplemental Final EIS. As such, the likelihood of appeal and litigation is high.
In contrast, in January 1994, the Wallowa-Whitman National Forest supervisor announced his intention to write a new management plan for the 652,000-acre Hells Canyon National Recreation Area. The Hells Canyon CMP [Comprehensive Management Plan] Tracking Group formed and wrote a "Native Ecosystem Alternative" management plan that was first presented in 1995 to the Forest Service.
Wallowa-Whitman National Forest staff initially ignored the alternative. But Forest Service officials in Washington, D.C. pointed out to their Wallowa-Whitman colleagues that the Tracking Group's alternative was reasonable, differed significantly from that of the Wallowa-Whitman's, and therefore, under NEPA, had to be considered. A second Draft EIS was produced, which fully analyzed the Native Ecosystem Alternative. The Forest convened a multi-stakeholder Federal Advisory Committee Act (FACA) group to analyze the Draft EIS's alternatives. In the end, an astonishing proportion of the Native Ecosystem Alternative was adopted by the Wallowa-Whitman NF, including significant limitations on livestock grazing and motorized recreation, the two most significant, current threats to Hells Canyon's steep native grasslands, wildlife, and fish-bearing streams. The Final EIS and the Record of Decision were not litigated by any party.
Thirdly, the Forest Service indicates the Natural Heritage Emphasis proposals for the Fishlake ORV plan "are not complete in terms of specifying travel barriers and oversnow closures." DEIS at 84. With regard to specifying travel barriers, this vague statement fails to indicate whether the Forest Service deemed the alternative "not complete" because it did not present the number of new travel barriers necessary as in Table 2-6 or the type of travel barrier. Regardless of the meaning of the statement, the Forest could have easily received clarification or a calculation on this point from the Three Forests Coalition if it so desired.
Regarding oversnow closures, according to the Forest Service, "[o]versnow travel by snow machines is outside the scope of the OHV route designation project except in the limited cases where seasonal closures to all motorized use are necessary to protect the integrity of critical mule deer winter range or non-motorized recreation uses." DEIS at 2. The Forest Service consistently indicated that oversnow travel was outside the scope of the DEIS. Now, the Forest Service seeks to eliminate an alternative for failing to specify oversnow closures. Such a decision is clearly arbitrary and inconsistent with NEPA's public participation provisions.
Finally, the Forest Service suggests that the "March 15, 2005 letter stated that the groups would continue to offer suggestions for route closures, which indicated that these proposals might not be in final form." DEIS at 84. The Forest Service cannot eliminate an alternative from consideration because the proponent has indicated a willingness to participate in a public process to the maximum extent possible. Again, such a justification is clearly arbitrary and capricious and contrary to NEPA.
Therefore, the Forest Service must analyze the Natural Heritage Subset Alternative in a re-issued DEIS allowing for public discussion and comment. The Forest Service has consistently expressed the desire to quickly implement the project without appeals or litigation. At the same time, the Forest Service has clearly acted in such a manner that would necessitate an appeal and/or litigation.
The Three Forests Coalition has participated extensively, in good faith, in the Forest Service's NEPA and "collaborative" process. Nonetheless, without adequate and documented justification, the Forest Service has rejected a feasible, prudent, and ecologically responsible alternative that represents the collaborative and extensive efforts of Utah's conservation community. As such, the DEIS as released to the public is arbitrary and capricious and contrary to law and will be challenged accordingly. The Forest Service must re-issue the DEIS with consideration of the Natural Heritage subset alternative to remedy these violations of NEPA's alternative analysis.
A. The Forest Service Failed to Take a Hard Look at Significant Impacts of the OHV Route Designation Project
NEPA's "sweeping" commitment is to "prevent or eliminate damage to the environment and biosphere by focusing government and public attention on the environmental effects of the proposed agency action." Marsh v. ONRC, 490 U.S. 360, 371 (1989). NEPA thus commands that federal agencies take a "hard look" at the environmental consequences of their proposed actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1171 (10th Cir. 1999). By forcing agencies to take a "hard look" at the environmental consequences of a proposed action , "NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Marsh v. ONRC, 490 U.S. at 371; see Robertson, 490 U.S., at 349, 109 S.Ct., at 1845. In addition, "the broad dissemination of information mandated by NEPA permits the public and other government agencies to react to the effects of a proposed action at a meaningful time." Id.
In order to comply with NEPA's "hard look" mandate, an "EIS's form, content, and preparation [must] foster both decision making and informed public participation." Calif. v. Block, 690 F.2d 753, 761 (9th Cir. 1982). In addition, an EIS must contain "a 'reasonably' thorough discussion of the significant aspects of the probable environmental consequences." Id. "Because of the importance of NEPA's procedural and informational aspects, if the agency fails to properly circulate the required issues for review by interested parties, then the EIS is insufficient even if the agency's actual decision was informed and well-reasoned." Dubois, 102 F.3d at 1288. The following deficiencies of the DEIS must be remedied in order to guarantee informed decision making and public participation as well as a thorough discussion of the significant environmental, social, and economic consequences of the action.
The Forest Service also fails to consider adequately costs to local communities involved in search and rescue and personal injury associated with ORV use.
Most of the following comments refer to the Wildlife Specialist Report for the OHV Designation Draft EIS. While a second report, the Watershed/Aquatics Report is only briefly mentioned here, to the degree that similar concerns are present in that report (e.g., failure to examine whether the alternatives' route density/use preclude recovery or health of the species; failure to provide population trends within the project area for MIS such as macroinvertebrates; failure to provide a different alternative (i.e., the Natural Heritage Emphasis Alternatives) , these comments should be assumed to be directed at that report as well.
1. The Wildlife Specialist Report fails to address a crucial question of impacts, namely, "Does the proposed route density in Alternatives 3 or 4 threaten wildlife species of concern whose habitat will be subject to ORV routes and use?"
Instead, the WSR's presentation of "environmental consequences" for each species is superficial and formulaic, consisting of generalized (mostly unreferenced) benefits of the action alternatives. The action alternatives will "increase habitat effectiveness", decrease "fragmentation," provide cover, forage, etc. How the action alternatives will do this is generally not stated, and references are generally not given. Occasionally a more specific benefit will be stated, e.g., less firewood cutting of snags for cavity nesters if there is less unrestricted access, and fewer roads, but no documentation is offered. Further, alternatives 2, 3, and 4 differ only incrementally in terms of reductions in unrestricted use, miles route/square mile of habitat. Thus, the hard-look question of whether there are too many miles of routes per square mile of habitat for the species in question to remain is avoided.
One extremely important piece of information is the number of miles of road/square mile that characterize well-occupied habitat vs. potentially suitable, unoccupied habitat. On p. 75, the WSR reports:
On the Loa Ranger District, no known goshawk territories occur in potentially suitable habitat with localized road densities greater than 4 miles of road per square mile. Successful nests occur in areas where the localized road density is at or below 2-3 miles/square mile [emphasis added].
Unfortunately, the goshawk excerpt cited above appears to be the only instance in the WSR in which there has been observation of what level of roads is too high for "potentially suitable habitat" to actually be suitable habitat for a given species on the Forest.
The following examples illustrate the failure to address the question of whether the routes proposed for designation are too many:
a. Example 1.Pygmy rabbits. On p. 102, the WSR notes that pygmy rabbits are reluctant to cross open spaces (e.g., roads?) and that they seldom venture further than 100 meters from their burrow.
The WSR says currently there are 3.6 miles/mi2 of potential pygmy rabbit habitat, and that Alternatives 2 and 3 would reduce this to 3.2 miles/mi2 and Alternative 4 to 2.5 miles/mi2 of habitat.
The hard-look question of whether pygmy rabbits can successfully inhabit and persist in areas where there are 2.5 miles/mi2 (Alternative 4) , let alone 3.2 miles/mi2 (Alternatives 2 and 3) of routes (and vehicles) running through their habitat (WSR 102) is never addressed.
b. Example 2. Yellow-billed cuckoo. The WSR is not commenting on the fate of federally-threatened yellow-billed cuckoo under its limited range of proposed alternatives: "Designated motorized roads and trail density within potential yellow-billed cuckoo habitat would be incrementally reduced under each action alternative from 11.8 miles of road per square mile down to 11 miles of road per square mile under Alternative 4...[and]unrestricted travel would be reduced incrementally under each alternative from 93% of potential habitat, down to 45% of potential habitat." (WSR 47-48; emphasis added).
The Forest needs to address the question of whether they are providing effectively suitable habitat for a federally listed candidate species with at best 11 miles of road per square mile and 49% of its habitat open to "unrestricted" (i.e., cross-country) ORV travel
c. Example 3. Sage grouse and long-term, indirect impacts. The following excerpt from an August 25, 2005 Casper Star-Tribune article[1] describing sage grouse research findings being presented by scientists who had gathered in Riverton, WY, illustrates how the adverse impacts of roads can be surprisingly indirect, and how slowly the adverse consequences may be revealed (emphases added):
Researcher Matt Holloran, a UW doctoral student, presented his Upper Green River Basin research, which looked at how energy development is affecting sage grouse. He found that energy development is substantially harming sage grouse populations there, with a few twists.
While drilling activity, road traffic and well operations tend to push male birds away, they also tend to push golden eagles away from all the activity, where they seem to have a disproportionate impact on breeding grounds that are away from development activities, he said. At the same time, females do not leave the area of energy development activities and brood survival is quite good there.
Holloran did find that young females are beginning to leave development areas. He theorized that continuing activity seems to be overcoming female birds' connections with certain sites as the older females die off and are replaced by younger females. The older hens, he noted, established an attachment to a specific area where they were hatched, before energy development started.
d. Example 4. Riparian guild of birds. The question of whether proposed retention of the astounding number of 6.2 miles of routes/square mile of riparian habitat will preclude use of the riparian habitat by the riparian guild of MIS birds or other riparian-dependent species (e.g., amphibians) is never addressed.[2] Likewise, although "...drainage bottoms are often important passageways for amphibians," (Aquatic/Watersheds Report, 120) the impacts of 6.2 miles of roads/square mile of riparian habitat on chorus frogs, boreal toads, leopard frogs, and tiger salamanders (Table AB-1, Watershed/Aquatics Report, 105-107) are never addressed.
The Draft EIS does not acknowledge the evidence in a study (Findlay and Bourdages 2000) submitted to the Fishlake National Forest in 2004 by the Three Forests Coalition that shows that many negative environmental impacts are unnoticeable for many years, sometimes decades. Findlay and Bourdages found that the model that best fits wetlands species richness measurements was the model that took into account past densities of roads rather than current densities of roads. This means declines in biodiversity may not be observable for decades after road construction.
e. Example 5. Estimation of effective habitat. The WSR estimates that the area of unrestricted, overland ORV use is probably overestimated in the DEIS because "On site terrain features such as dense woody vegetation, large rocks, uneven and steep slopes reduce the total amount of area where motorized vehicles can actually travel." (WSR 29).
However, the DEIS does not consider or state the obvious inverse: i.e., that the area of truly potentially suitable habitat for the TES and MIS species is probably overestimated due to terrain features such as lack of sufficiently dense cover for protection from predators or .....a high density of motorized routes.
A Supplemental DEIS is needed to draw upon relevant scientific literature and survey information to compare the relative effectiveness of sensitive wildlife habitat (e.g., riparian areas, sagebrush communities, and ungulate winter range) under the substantially different route mileage of the Natural Heritage Emphasis Alternative compared to the Forest alternatives.
2. Neither the Draft EIS nor the WSR indicate what, if any, monitoring of ORV use/route density impacts on the native wildlife of the Forest will be undertaken following implementation of the plan.
a. The WSR uses the word "monitoring" six times. Five of these times are in two paragraphs regarding monitoring that is required on national Forests for peregrine falcon (WSR 10); the sixth mention indicates annual monitoring is done for goshawk on the Forest (WSR 12).
b. The Draft EIS notes only "Resource specific monitoring of motorized use impacts should be included in the monitoring summary"( DEIS 178, emphasis added). What monitoring summary? What does "Should be" imply?
The combination of the failure to address the question of whether proposed use/route density will further diminish or prevent recovery of declining native species (see #1 above), and the complete failure to commit to monitoring of impacts on native wildlife of the implemented ORV use/route density (#2 above) amounts to a capitulation of responsibility to the natural heritage of the Fishlake NF. Hundreds of scientific studies reviewed in numerous overviews document and warn of the myriad direct and indirect impacts to native wildlife (e.g., Berry 1980; Forman and Alexander 1998; Gilbert 2003; Gucinski, et al. 2001; Hartley, et al. 2003; Reed, et al. 1996; Trombulak and Frissell 2000 -- all of which have been supplied to the Fishlake National Forest by the Three Forests Coalition in 2004). However, the Fishlake NF fails to describe the likely impacts of their proposed ORV use/route density on declining native wildlife or to compare this with the impacts that would be expected from the Natural Heritage Emphasis Alternative.
3. Alternatives 3 and 4 are treated as essentially similar, with Alternative 4 sometimes depicted as merely having less unrestricted use, and incrementally smaller miles/mi2 of road. A few of many examples follow:
The Natural Heritage Emphasis Alternative is substantially different than Alternative 4, but was not analyzed in this first Draft EIS.
4. The methods/criteria used to generate "potentially suitable habitat" acres for most of the species are unclear. The Draft EIS is unreadable because there is generally no way of knowing:
i. Example: Pygmy rabbit. The WSR (at 15) indicates that "Pygmy rabbits are generally limited to areas on deep soils with tall, dense sagebrush, which they use for cover and food" and "There are approximately 52,752 acres of potentially suitable habitat on the Fishlake National Forest comprised of tall sagebrush communities." How were these 52,752 acres selected? Do these 52,752 acres have "tall, dense sagebrush"? Or do they "potentially" have tall, dense sagebrush if no sagebrush treatments are initiated or maintained, current livestock grazing management is altered, etc.?
ii. Example: Brewer's sparrow, vesper sparrow, and sage thrasher: WSR (at 22) describes varying habitats for these three species (emphases added):
1. "The Brewer's sparrow is a common summer resident and breeder in mountains and higher valley [sic]. It breeds in treeless shrub habitats with moderate canopy, especially in sagebrush. The Brewer's sparrow breeds locally above pinyon-juniper belt. "
2. "The Vesper sparrow is a common summer resident occurring in sparse or open stands of sagebrush, low sagebrush, and similar habitats."
3. "The sage thrasher occurs primarily in sagebrush and low sagebrush habitats. It is mainly limited to semiarid sagebrush plains, but may extend into junipers and mountain-mahogany habitats near sagebrush "
The WSR then indicates that suitable habitat for the "sage nester guild" is 661,740 acres of sagebrush.
1. Was all sagebrush included in this estimate?
2. How much overlap is there between the three species' sagebrush habitats?
3. If one declining bird's habitat does not overlap much with the other two birds, what are the impacts on that species?
i. Example: Prairie dog. Is the "approximately 428 acres of potentially suitable habitat" (WSR 8) based on the area where "former translocations" were situated? How was that area delineated? Does the WSR assume that zero other acres were used historically by prairie dog on the Fishlake, or are potentially suitable? Rodriguez (2004) indicates that "Basic habitat requirements considered for the Utah prairie dog are deep, well-drained soil, vegetation low enough so that prairie dogs can see over or through, and suitable forage (Spahr et al. 1991). Moist forage available throughout the summer is also needed." It is not clear whether the WSR is saying that only 428 acres of such habitat exist on the Forest.
i. MIS Riparian guild of birds. Potentially suitable habitat for the "Riparian guild" of four birds is estimated to be 18,021 acres (WSR 26), but it is not clear how riparian habitat was defined for the purposes of estimating the acres.
ii. Yellow-billed cuckoo. The WSR notes that yellow-billed cuckoo "are restricted to riparian habitat containing cottonwood and willow overstory and dense brushy understories below 7,000 feet elevation." No reference for this is given, and yet yellow-billed cuckoo researcher Steve Laymon responded personal communication by email, 15 September 2005). to my question regarding the 7,000 foot figure:
I
would certainly not expect to find Yellow-billed Cuckoos at 7,000 foot
elevation. In California they have not been found above 5,000 feet and
there only rarely. At higher elevations the warm season is very short and
the nighttime temperatures are low even in summer - this probably adversely
affects the potential for a good prey base.
If in fact suitable habitat for yellow-billed cuckoo on the Fishlake NF is even smaller than the 2,664 acres cited (WSR 47), then perhaps the Forest could eliminate all unclassified and some classified routes (as well as livestock grazing) within its potential habitat. The Forest is almost certainly never going to restore yellow-billed cuckoo in habitat averaging the proposed 11.0 miles of routes/square mile of habitat (WSR 47).
5. Trends of Forest MIS bird species[3]are not decipherable for the Forest and/or are inaccurately reported for Utah.
This renders the Draft EIS unreadable. (In contrast, the Watershed/Aquatics in Table AB-2 provides specific site data for where macroinvertebrates have been sampled and whether population trends are available; Watershed/Aquatics Report 107-111) report A few of the many examples include:
a. Northern goshawk. The WSR writes (at 12): "The Northern Goshawk is both a Regional Forester's Sensitive Species and a Management Indicator Species on the Fishlake National Forest. Annual Forest-wide monitoring of Goshawk territories, show a stable trend despite several years of below average precipitation levels." What is the trend that is stable? A downward trend? Is goshawk at viable levels in the Forest?
b. Sage Nester MIS: Sage thrasher is in a dramatically downward trend in Utah over 30 years. Rodriguez (2004) notes that between 2002-2003 there were 14 detections of sage thrasher on the Fishlake National Forest. These detections occurred on the Richfield Ranger District in the Hell's Hole area. The results (trend) of these transect studies on the Forest are not stated(Rodriguez 2004, p. 77). As well, the coverage of the sage thrasher monitoring is not provided. Is it only in the Hell's Hole area?
c. Sage Nester MIS: Brewer's sparrow . The WSR estimates stable to slightly up on Forest based on increased numbers of transects on which the sparrow has been observed but the WSR doesn't state whether the numbers of transects have increased or remained the same in the same locations (see Rodriguez 2004, p. 72). Rodriguez (2004)says Breeding Bird Survey data show Brewer's sparrow up in Utah 1968-1998; but in fact, Breeding Bird Survey (BBS; Sauer etr al. 2005) data for 1968-2004 show downward trend 1968-1979 and 1980-2004 [4]
d. Sage Nester MIS: Vesper sparrow -- Again, there is no indication of number of transects run over different years and there are limited data on the Forest (perhaps data has been gathered only in the "Burnt Flat" area), but Rodriguez (2004) estimates that this population is stable or slightly up in trend, and likely viable across the Forest. Rodriguez (2004) says the Vesper sparrow displays an upward trend in Utah 1968-1998 in BBS, but in fact BBS for 1966-2004 as well as 1966-1979 shows downward trend[5] of Vesper sparrow in Utah. Rodriguez does indicate that Nature Conservancy data (for Utah? unstated) indicate Vesper sparrow is "imperiled."
e. Riparian Guild MIS: Lincoln's sparrow -. Appears transects have been run only in Burnt Flats area (Rodriguez 2004; p. 94) though the conclusion is that Lincoln's sparrow is likely stable or in a slightly downward trend on the Forest; again not clear how many transects.
The DEIS does not provide readable, scientifically sound information regarding evidence for trends of its MIS bird species. This is of particular concern, as the viability and trends of MIS species are supposed to indicate trends and viability of numerous other species represented by the MIS species. If even these MIS species are not monitored well, or their trend is downward, then the proposed maintenance of, e.g., 7.4 miles of route per square mile of riparian guild habitat in the Fillmore District or 6.2 miles of route per square mile of riparian guild habitat in the Forest under Alternative 3, may be dooming riparian-dependent species. The Draft EIS fails to address this issue.
The following bird species examined in the WSR are experiencing the following trends in Utah according to the Breeding Bird Survey; the unreadable nature of Fishlake NF monitoring (Rodriguez 2004) is shown for those birds showing upward trends in Utah:
DOWNWARD
All three sage nester guild birds:
Brewer's sparrow
Vesper sparrow
Sage thrasher
Hairy Woodpecker
Northen goshawk
Mountain bluebird (1980-2004)
UPWARD
Song sparrow (although no Utah trends are cited for 1980-2004)
--- SLIGHT DOWNWARD on small sampling on the Fishlake (Rodriguez 2004)
Yellow warbler
---Undecipherable for Fishlake NF in Rodriguez 2004: "In 1998 the number of presence/absence observations of this species along each transect line totaled 14. In 2002 the total number of transects recording this species totaled 19. As a result of these data collected over the past 8 years, this species has demonstrated an increased in presence/absence numbers across the Forest.:
MacGillivray's warbler
---No trend observable yet fpr Fishlake NF in Rodriguez 2004: "Between 2002-2003 there were 6 incidental detections of MacGillivray's warbler on the Richfield Ranger District of the Fishlake National Forest."
Lincoln's sparrow
--3 surveys in the Burnt Flats area between 1994-2002 - no indication of how many transects run in each year
Mountain bluebird (1966-2004)
---Unknown number of transects run in the Burnt Flats area between 1994 and 2002. Trend not decipherable from description (Rodriguez 2004)
Western bluebird
---Undecipherable for Fishlake NF in Rodriguez 2004: "Data has been collected between 1994-2003. In 1994, and 1998 surveys were conducted in the Burnt Flat area, and other areas of the Forest. No birds were encountered in this area. In 2001, this species was detected by Utah State University along 3 transect lines while conducting specific cavity nesting surveys [WHERE???]. In 2002 the presence of bluebirds was detected along 1 transect line. The number of detections has increased to 14."
NO BBS UTAH STATEWIDE TRENDS AVAILABLE:
Sage grouse
Mexican spotted owl
Bald eagle
Flammulated owl
Three-toed woodpecker
6. Guild species are lumped for analysis, with impacts to their "habitat" treated superficially as one analysis, though they may have differing relationships to roads.
a. Example: Flammulated owl and three-toed woodpecker. These two MIS species (cavity nesters) are lumped together in the WSR (see, e.g., WSR 82), although a habitat suitability index for three-toed woodpecker year-round habitat (Zapisocki, et al.2000) indicates "Three-toed woodpeckers are unaffected by the proximity of human developments or roads" while a management document indicates otherwise for flammulated owl (Canings and van Woudenberg 2004): "Do not construct roads. Deactivate or control road access on existing roads" and "Do not develop trails, roads, or recreation sites within core area."As for cumulative impacts on flammulated owl, this document cites research indicating , "Flammulated Owls were not observed nesting in areas they had previously occupied after grazing had reduced grasses <10 cm (van Woudenberg 1999)." Neither the Draft EIS nor the WSR take a hard look at the cumulative impacts of livestock grazing and the proposed level of designated routes (see DEIS 136 and Appendix C 190)[6].
The DEIS makes no mention of the potentially significantly different responses of flammulated owls and three-toed woodpeckers to roads and road use. Instead, it simply writes (WSR 83):
There would be few changes to the miles of roads and motorized trails proposed in the action alternatives. At the Forest level, road density would drop by 0.2-0.3 miles of roads per square mile [from the current 0.9 miles/square mile) . These changes would not measurably improve habitat effectiveness for the flammulated owl or three-toed woodpecker.
7. Most conclusions are unreferenced to scientific information. A few examples follow:
a. The phrase "may therefore impact [a species'] individuals, but would not likely contribute to a trend toward federal listing or cause a loss of viability to the population or species" is invoked 49 times in the WSR, as in: "Implementation of this alternative may therefore impact sage grouse, but would not likely contribute to a trend towards federal listing or cause a loss of viability to the population or species" (WSR 95)
What evidence is being relied upon for claiming that potential impacts of the proposed route density/use on the few sage grouse individuals and populations on the Fishlake does not contribute to a trend towards federal listing of this species? What does contribute toward a trend towards federal listing of the sage grouse if it is not the impacting of individuals and populations? What evidence is the basis for claiming that the proposed ORV use/route density will not cause a loss of viability to a small population that may be impacted on the Fishlake?
b. The WSR indicates that thee are only two known populations of pygmy rabbit on the Fishlake (WSR 101) One of the population is on Monroe Mountain and the Forest proposes that unrestricted, off-route driving would continue through this population (WSR 109). What evidence is the basis for saying that unrestricted driving through this pop7ulation would not "likely" cause a "loss of viability to the population"? (WSR 109).
c. "Several known [goshawk] territories that have nest structures within 1/10 mile of existing roads have been successful raising young. Other nest territories seem to have a low tolerance for any kind of nearby disturbance." (WSR 71)What is the source for this information? Documentation on the Fishlake? Reference to a scientific study elsewhere?
8. Readily available scientific literature regarding the effects of roads on the species was not utilized.
a. The following examples, for instance, were rapidly found by a word search on Google
1. Example: Brewer's sparrow. Research by Ingelfinger and Anderson (2004) aimed at determining "...how roads associated with natural gas extraction affect the distribution and densities of songbirds in sagebrush habitats of western Wyoming. Surveys were conducted to measure species density at multiple distances perpendicular to roads with varying traffic volumes. Density of sagebrush obligates (Brewer's and Sage Sparrow was reduced by 39-60% within a 100-m buffer of dirt roads with low traffic volume). The response may be related to a synergistic effect of road noise, edge effects, habitat fragmentation, or competition with other species, such as Horned Lark, which occurred in increased densities along road corridors. Species composition shifted with an increase in Horned Lark abundance relative to sagebrush obligates along road corridors. Close to roads, Horned Larks accounted for 31% of all detections, whereas, beyond 100-m from roads they accounted for only 16%. The authors used a GIS to calculate a total area impacted within the gas development they studied by buffering all roads by 100-m and calculating the percentage of the total area impacted (14.6% of the land base is within 100-m of roads)" (emphasis added)
This is important in part because, contrary to the WSR's statement that BBS data show an upward trend of Brewer's sparrow in Utah between 1968 and 1998 (WSR 71), in fact, BBS data for Utah show a downward trend for Brewer's sparrow 1966-2004, 1966-1979, and 1980-2004.[7]
2. Example: Sage grouse.Research by Wisdom, et al. (2002) "validated the performance of two models that were developed to assess landscape conditions for Sage Grouse across 13.6 million ha of sagebrush steppe in the interior Columbia Basin and portions of the Great basin. ... Input variables included habitat density, departure from historic range of variability, grazing effects, road density, and human population density. .... To evaluate model predictions the authors examined output values in areas where sage grouse have been extirpated in the last 30 years to areas identified as strongholds based on current population surveys. The models performed very well - the highest probability of extirpation was predicted in areas from which sage grouse were extirpated and lower probability in areas still occupied" [emphases added]. Density of roads and human activity were one factor that distinguished between occupied and unoccupied habitat: "..subwatersheds in extirpated areas had higher densities of roads and human populations than did those in occupied areas (Fig. 4)." Figure 4 shows that sage grouse habitat is more likely to be occupied than extirpated only when roads are "very low to none."
b. Relevant scientific documents submitted to the Fishlake National Forest Planning Team during 2004 were not utilized. Some examples follow:
1. Example 1. Cumulative impacts of livestock grazing and roads. Gelbard and Harrison (2003), examine non-serpentine grasslands in California found cumulative impacts: Cover and number of native species, and native grass diversity were greatest in sites >1000 m from roads and lowest in sites 10 m from roads, while exotic cover showed the reverse pattern. Native cover was greater on cool and relatively flat slopes and on ungrazed compared to grazed cool slopes, but was not significantly affected by livestock grazing on warm or neutral slopes. The Draft EIS does not discuss vegetation in terms of native or exotic; nor does it discuss the cumulative impacts of livestock grazing and road density.
2. Example 2. Lag time in loss of biodiversity. Findlay and Bourdages (2000) found that many negative environmental impacts are unnoticeable for many years, sometimes decades. The model that best fits wetlands species richness measurements was the model that took into account past densities of roads rather than current densities of roads. This means declines in biodiversity may not be observable for decades after road construction.
3. Example 3. Impacts on reptiles and small mammals. Berry (1980) cited studies of impacts of ORVs on birds indicating that ORVs can have profound and highly significant negative impacts by reducing abundance, variety, and biomass. Berry notes that similar results have been obtained in studies of other vertebrate species, particularly reptiles and small mammals. Numbers, diversity, and biomass are markedly reduced in most species exposed to moderate and intensive ORV use. (p. 455). Neither the Draft EIS nor the WSR mention impacts of route density/ORV use on reptiles or small mammals.[8]
According to the Forest Service, the DEIS eliminates detailed discussion of socio-economic impacts because "[t]hese issues create minimal risk or are eliminated by project design." DEIS at 24. In its single-paragraph analysis of socio-economic aspects of the project, the Forest Service simply "recognizes that motorized recreation plays an important role in local economies." DEIS at 206. The Forest Service never analyzes its funding capabilities to implement the measures anticipated by the project, such as maintenance and road signing, never balances the environmental costs with purported financial benefits, and continues to rely on the unsupported assumption that user creations of trails and enforcement of ORV restrictions will be decreased by the project.
Inaccurate economic information may defeat the purpose of an EIS by "impairing the agency's consideration of the adverse environmental effects" and by "skewing the public's evaluation" of the proposed agency action. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446-48 (4th Cir.1996); see also Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 235 F.Supp.2d 1143, 1157 (W.D.Wash.2002) ("An EIS that relies upon misleading economic information may violate NEPA if the errors subvert NEPA's purpose of providing decision makers and the public an accurate assessment upon which to evaluate the proposed project."). NEPA requires agencies to balance a project's economic benefits against its adverse environmental effects. Calvert Cliffs' Coordinating Comm. v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1113 (D.C.Cir.1971).
The Forest Service acknowledges that this project "may result in an increase in the mileage of classified routes, which could lead to increased maintenance costs." RAR Supp. at 17. In addition, the Forest Service recognizes that "[t]here will be an increase in signing costs during the initial project implementation and additional funding will be needed to implement road closures using gates, barriers, or obliteration." Id. Additional costs include providing free travel maps and repairs from vandalism. Id. Despite acknowledging the need for additional funding to cover additional costs, the Forest Service has made no attempt whatsoever to place a value on these additional costs; analyze the capacity to receive the necessary funding to implement their proposal; or to assess whether these costs outweigh the environmental harm of allowing motorized use on any given route. Each of these analyses must be completed to provide the public with the full picture of the project and the agency's ability to implement necessary measures to "reduce the potential for motorized conflicts and impacts to other resource uses and values" (DEIS 10).
The Forest Service also guaranteed in Roads Analysis Reportthat "[e]quity of the proposed route designations will be evaluated by the decision maker using socio-economic and bio-physical resource tradeoffs presented in the Fishlake OHV Route Designation Project EIS, Forest Plan revision information, and based on applicable environmental laws." RAR Supp. at 18. Where is this evaluation? This is the exact type of analysis the Forest Service must complete in order to comply with NEPA. See Calvert Cliffs', 449 F.2d at 1113.
Much of the Forest Service's minimal socioeconomic discussion appears to derive from the continued assertion that accommodating motorized use on the Forest is necessary to support local communities. However, the documents cited by the Forest Service do not support this assertion. The "Social and Economic Assessment" by the Utah's Governor's Office acknowledges that "ATV tourism is growing, but some communities are uncertain about its benefits versus the costs it incurs." Dixie, Fishlake & Manti-La Sal National Forest, People and the Forest: Social-Economic Assessment Tools and Data for Forest Plan Revision, prepared by the Utah Governor's Office of Planning and Budget at 49. The Governor's Office notes that "[w]ildlife-watching is also becoming a profitable enterprise. More than $555 million dollars was spent on wildlife watching in Utah, more than double the amount spent five years earlier." Id.
Moreover, the Governor's Office recommended that the Forest Service "[a]nalyze the management costs and economic benefits of new activities and Forest uses, in particular . . . ATVs and other motorized recreation." Id. at 166 (emphasis added). However, despite recognizing the necessity for such an analysis, the DEIS is completely devoid of any cost-benefit analysis that takes into account management costs, let alone non-market valuations .
Accordingly, the Forest Service, in a re-issued DEIS must conduct a thorough assessment of the additional costs associated with the project, balance these costs with economic, social, and ecological benefits/costs, and reach the appropriate decision based on this assessment.
The summary of the DEIS states that "the desired result from this project is to provide ample motorized recreational opportunities that minimize the potential for user conflicts and resource impacts, and to create a system that can be maintained over time with the resources available to the Forest" (p. 1). This desired result would meet the requirements of Executive Order 11644 with the exception that the Nixon presidential order does not require the agency "provide ample motorized recreational opportunities."[JK1] However, the proposed plan for achieving the desired result is based on insufficient analysis and faulty assumptions.
As society increasingly relies on non-wilderness public lands to provide environmental services and values such as clean water, natural quiet, wildlife habitat, as well as opportunities for recreation, the need for projects to minimize user conflicts and resource impacts grows. In order to meet these critical needs, the summary correctly suggests, the Forest must design the off-road vehicle route system (as well as the rest of the travel system, we would argue) so that it can be maintained over time with resources available to the Forest.
However, Chapter 1: Purpose of and Need for Action dismisses important factors which must be analyzed if the Forest is to propose a successful plan in the final EIS. Aspects of these sections also rely on unrealistic assumptions that contradict available social research and needed economic research that is particular to the Fishlake National Forest. As such, the Fishlake National Forest cannot expect to achieve the desired results based on the information they have considered and assumptions they have made in making their proposal.
For instance, although the plan is intended to result in a route system that minimizes user conflicts, the table and discussion on "management considerations and issues" (p. 20-23) does not call for an analysis of conflicts among visitors to the National Forest. Nor does it consider conflicts created when off-road vehicle use occurs on public lands that are near private property or on public lands where a local rancher is affected by fence cutting, damage to livestock improvements and equipment. This glaring omission may be attributed to one of several reasons: perhaps the Fishlake does not have a system for reporting and tracking user conflicts; perhaps the existing route network is too large and dispersed to be monitored and enforced by agency staff; or perhaps due consideration of this issue would point to the obvious need for comprehensive travel planning to designate foot and hoof trails as well as passenger vehicle access to trailheads, instead of the compartmentalized approach to designating only off-road vehicle routes which the Forest has chosen. Regardless, a thorough analysis of user conflicts associated with off-road vehicle use is essential to planning for a route system, which minimizes opportunities for user conflicts to occur.
In the purpose and need, the Fishlake National Forest rightly recognizes the ecological and social threats posed by unmanaged off-road vehicle use. However, its response of proposing designation of an extensive and dispersed route system invites ever-expanding damage and conflicts caused by a minority of users and at the expense of a majority of users and the ecological values and services that would otherwise flourish. After full consideration of sideboards for designations which depend on the ecological capacity of the land to withstand off-road vehicle use, the Forest should plan to scale back the off-road vehicle system in order to better serve the majority of visitors to the Fishlake. According to the Forest Service's National Visitor Use Monitoring Program found at www.fs.fed.us/recreation/programs/nvum, the Fishlake reported in August 2003 that only 11.5% of visitors primarily came to the Forest to ride their off-road vehicles, while 25.8% participated in that activity (Table 13. Fishlake NF activity participation and primary activity). The 31.5% of visitors who participated in "driving for pleasure on roads" designed for standard passenger vehicles are not participating in off-road vehicle use. In contrast to the relative minority of folks visiting the Fishlake to ride off-road vehicles, hunting and fishing were recognized as the leading primary activities on the Forest at 21.6% and 35.5%, respectively. Both activities rely on clean water and large blocks of native habitat, which are best maintained in unroaded areas where sediments do not load streams due to run-off from motorized routes and riparian habitat is not fragmented.. Quality hunting relies on natural quiet, wildlife that is not harassed from the area; and upland habitat that is not fragmented.[9] Therefore, both of these primary activities visitors pursue when visiting the Forest are threatened by the proposed expansive and dispersed off-road vehicle route system
A central factor that should be analyzed in order for the Forest to reach another of its noble goals--that the project results in "a system that can be maintained over time with the resources available to the Forest"---is also largely ignored. Dismissal of "socio-economic impacts" in the section titled "Issues Not Analyzed in Detail" prevents the Forest from being able to understand the fiscal and opportunity costs of managing recreation on the substantial and dispersed off-road vehicle route system that is proposed as well as the more minimal, selective route system proposed in the subset Natural Heritage Alternative.. Should the Forest examine the economic benefits and costs and ecological impacts of off-road vehicles (including the economic costs of displaced use and the non-market values of ecological services and systems), the agency would be able to determine what scale and design of route system it can afford to enforce, monitor, and maintain.
As described below there could be potentially three phases to this research: ecological cost analysis, displaced use and ecosystem services, and management and policy optimization. The first two phases correspond essentially to the supply (cost) side and the demand side of these resource uses, respectively. The third phase puts the two together in both a benefit-cost and regional economic framework to identify policy and management directions.
Both non-market valuation measures (including values for ecosystem services as well as visitor use) and a regional economic accounting framework should be demonstrated. As a result, the Fishlake National Forest would be able to determine the cost of management and compare that to its fiscal resources. Such an analysis would enable the Forest to scale and design the off-road vehicle route system to the available agency resources. Without knowing the costs, however, the Fishlake in its DEIS proposes to make commitments for which it has no idea if it can afford. This is like signing a contract to build a hospital without knowing whether there will be money to treat the flood of patients that will come.
It is well known that non-motorized users will often abandon a place when off-road vehicle recreation becomes common. This abandonment by nonmotorized recreationists makes it difficult to measure the effects such displacement has on an area because it is nearly impossible to find the people who abandoned the area. The Forest should attempt to discern some of the potential economic impacts of such displacement perhaps by surveying similar public lands in the region (e.g., Cedar Breaks National Monument, Arches National Park), which are not as heavily visited by off-road vehicle recreationists, as well as calculating the foregone benefits from ecosystem services that are damaged by off-road vehicle use.
This aspect of the analysis would include non-market valuation estimates of nonmotorized and motorized use. It would also include an ecosystem services valuation. To determine these answers, agency economists should conduct original research, surveying both types of users in one type of setting. The results would include an assessment of the benefits of both off-road vehicle and non-motorized recreation and ecosystem services benefits.
Another faulty assumption, which, if corrected, would undermine an extensive, dispersed off-road vehicle network of routes is that if the Forest only designates enough routes for riders they will stay on those routes and not travel cross-country. The desired result of a "a system that can be maintained over time with the resources available to the Forest" would be supported by "creat[ing] a travel plan that is inherently easy to enforce" (p. 10). However, the DEIS does not engage in a realistic or practical discussion of what type of route system design would be "inherently easy to enforce." Instead, the Forest relies on the false assumption that "unplanned and unmaintained routes will not proliferate because adequate recreational activity is available in a well-planned system of trails and roads" (p. 10).
Two studies from the region point to the failure of this assumption. A recent study conducted by Monaghan and Associates and commissioned by the Colorado Coalition for Responsible OHV Riding in 2001 found that ". . . knowing that going off trail is not 'correct' OHV behavior, as many as two-thirds of adult OHV users go off the trail occasionally." This study concludes: "In a 'nutshell,' it is our premise that further information and education per se -- will not result in substantial behavioral change"(emphasis in original). Active, on-the-ground enforcement is the most important component of securing rider compliance with a designated routes policy.
In a somewhat similar study, the Utah Division of Parks & Recreation commissioned Utah State University to survey riders who had registered their off-road vehicles in 2000 to determine their "OHV uses and owner preferences." This report is presumably intended to help the Division "better plan OHV management strategies on Utah public lands."
The Utah report reveals that an inordinate number of riders prefer to ride "off established trails." Of the ATV riders surveyed, 49.4% prefer to ride off established trails, while 39% did so on their most recent excursion. Of the dirt bike riders surveyed, 38.1% prefer to ride off established trails, while 50% did so on their most recent excursion. When surveyed on issues affecting OHV use in Utah, survey respondents recognized the need for enforcement but not the need for protection of the natural resources where they ride. The study found that "one-third of the respondents who said there should be more law enforcement presence in OHV areas compared to only 7.5% who said there should be less" (p. 38, drawing from Table 4.5 on p. 30). Only 6% cited "resource management conservation" as the most important issue affecting OHV use in Utah (p. 40, drawing from Table 4.8 on p. 33).
The findings of these two studies suggest that even if the "demand" for more off-road vehicle riding opportunities is met, riders will continue to fulfill their preferences by riding "off established trails." The likelihood of such undesirable, illegal, and damaging behavior is predictable. The DEIS itself points out that persons who frequently use national Forests for one or more purposes and commented during this project's scoping period "expressed concern about the potential impacts from future growth in OHV use. However, motorized proponents desire enough riding opportunities to avoid overcrowding . . . ." (p. 20). As acknowledged in the summary, "there has been unanticipated growth in OHV use since the 1986 Fishlake Forest Plan was written" (p. 1).
The Fishlake needs to look at the experiences of a national Forest in Utah that has been on a designated routes policy to understand that designations alone do not beget rider compliance. Since 1988, the Wasatch Cache National Forest has been primarily managed as an "open on designated routes" basis. Nonetheless, the proliferation of user-created trails has continued. For example, the DEIS for the Ogden Travel Plan Revision states that "[o]ne purpose of this document is to identify problem areas of unauthorized motorized recreational use which have resulted in a proliferation of user created trails, eroded hillsides, introduction of noxious weeds, trail user conflicts, and disturbance to wildlife." Ogden Travel Plan Revision DEIS at 1-2. The Forest Service's stated purpose recognizes that "over the past decade there has been a significant increase in the development of illegal, user created trail." Id. As such, contrary to the Forest Service's assumption, simply designating routes on the Forest does not halt the creation of illegal, user created trails.
Based on the credible studies of rider behavior in Utah and Colorado, the experiences of the Wasatch Cache National Forest, as well as market and visitor trends that anticipate continued growth in off-road vehicle use, the Forest should recognize that off-road vehicle recreationists will pursue this desire for "enough riding opportunities to avoid overcrowding" by cutting new routes. This problem will be compounded by the extensive, dispersed design of the proposed DEIS alternatives which is inherently impossible for the cash-strapped, understaffed agency to monitor, maintain, and enforce.
As is evident in published sociological literature, it has been shown that the regulation of desire is not assured through rule, regulation and policy. These two studies show a pronounced desire among off-road vehicle recreationists to ride off of designated routes. Unless the Fishlake designs an enforceable route network and demonstrates an adequate budget for law enforcement personnel sufficient to provide a consistent presence to regulate behavior, off-route riding will continue to expand beyond the designated system. This use will result in unacceptable resource impacts and user conflicts and undermine the stated "desired result" of the DEIS.
In "Chapter 1: Purpose of and Need for Action," the agency declares, "a critical test for the travel plan update is to avoid creating rules that cannot be enforced since this degrades the legitimacy of the entire plan in the eyes of the public" (p. 16). The legitimacy of the entire plan as proposed in this DEIS is at risk given that the expansive, dispersed design of the route system is unenforceable. To instill confidence in even the near-term sustainability of the proposed route network, the Fishlake's Final EIS must advance an alternative which proposes a designated routes system that is contained and scaled to the availability of the agency's financial resources needed to enforce, monitor, and maintain the system to the extent that user conflicts and resource damage is minimized. Such a proposal should be designed based on an analysis of the sources of ecological services and values, the location and sensitivity of wildlife habitat and clean water, where user conflicts are most likely to occur, and the resources available to the agency to manage off-road vehicle recreation and use.
THE FOREST SERVICE'S CUMULATIVE IMPACT ANALYSIS FAILS TO COMPLY WITH NEPA
Cumulative impacts are "the impact[s] on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions." 40 C.F.R. § 1508.7. The Forest Service's cumulative impacts analysis must provide "some quantified or detailed information," because "[w]ithout such information, neither courts nor the public . . . can be assured that the [agency] provided the hard look that it is required to provide." Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1379 (9th Cir. 1998). An agency's cumulative impact analysis "must be more than perfunctory." Ocean Advocates v. U.S. Army Corps of Eng'rs, 361 F.3d 1108, 1128 (9th Cir. 2004) (citations omitted).
The Forest Service's cumulative impact analysis primarily consists of a description of the reasonably foreseeable activities on the Forest and "potential effects." DEIS at Appendix C. The Forest Service fails to place these actions in the larger context of the route designation project. Rather, it is simply a list of projects devoid of analysis. To comply with NEPA, the Forest Service must analyze the cumulative impacts of the entire travel system, including aspects such as user-created roads/trails, dispersed camping, and oversnow travel, as well as, the cumulative impact on important resources, such as deer or elk herds. In fact, the Forest Service appears to concede that these are "related issues," DEIS at 18, yet fails to evaluate adequately the consequences of these known impacts. Moreover, the ongoing, nearly ubiquitous, presence of livestock grazing and not merely livestock "projects" such as extension of term grazing permits must be analyzed.[10]
Even the perfunctory analysis by the Forest Service reveals the need for a more robust consideration of the trail designations. For example, the Forest Service acknowledges transportation projects are necessary to "reduce the number of stream crossings," "reduce riparian and wetlands impacts and to protect a [T & E] plant," "mitigate the potential for introducing whirling disease," and "reduce the potential for motorized use and dispersed recreation to impact Boreal toads." DEIS at 192. In addition, projects are necessary "to reduce user conflicts by improving and/or restoring route connection." DEIS at 193. These are the types of resource conditions and motorized use impacts that should be driving the DEIS analysis, not simply listed in an appendix . Moreover, the Forest has attached no budget or budget capability to these projects that are required when designating extensive ORV routes. The Forest Service must conduct a more comprehensive cumulative impact analysis to better understand the existing impacts of the travel system and the increased impacts associated with this project, including their financial capability to control the impacts of use of the routes (and of additional user-created routes).
Moreover, as previously raised, the Forest Service cannot place this action in a vacuum. Dispersed camping, user-created trails, and oversnow travel all cumulatively impact the ecological conditions on the Forest. Given, for instance, that there would be 6.2 miles of road/square mile in riparian habitat under the Forest's preferred alternative (DEIS 152) and cattle graze in much of the same habitat and riparian habitats are a major locus of recreational uses other than driving, one has to wonder at the ability of riparian area-dependent and declining wildlife to persist with these cumulative impacts. This is not addressed by the DEIS.
In addition, the Forest Service must analyze anticipated increases in use in the years during implementation of the travel plan. Federal courts have recognized the significance of increased motorized trail use as a necessary component for environmental analyses relating to trail designation. According to Wash. Trails Ass'n v. U.S. Forest Service, "the environmental significance of [the trail project] cannot be accurately assessed unless the potential for increased use resulting from the cumulative impact of the projected network of ORV trails planned for the [Ranger District] is carefully considered." Wash. Trails Ass'n v. U.S. Forest Service, 935 F.Supp. 1117, 1123 (W.D. Wash. 1996); see also North Cascade Conservation Council, 98 F.Supp.2d 1193, 1198 (W.D. Wash 1999)("Within the NEPA scheme, however, any proposal adding to this ORV system that may adversely affect the environment must be examined in light of the entire existing system"). The Forest Service has never adequately analyzed the environmental consequences of its existing route system in an open and meaningful way. To the extent the Forest Service contends that the Roads Analysis Report, including the route designation supplement, fulfills the obligations, neither of these documents was prepared pursuant to NEPA's public participation requirements. Moreover, although the Roads Analysis Report is intended to provide "a synthesis of the benefits, problems, and risks of the current road system" or an "an assessment of the risks and benefits of entering any unroaded areas," the Forest Service failed to conduct this analysis on a route-by-route basis with an understanding of the resource values of each route. For example, the Forest Service analyzed the consequences of adding roads to currently unroaded areas "in general terms." RAR at 27. The Forest Service conducted these generalized analyses, despite acknowledging that issues such as insects, disease, and parasites "are more site-specific, often confined to a watershed or district, and thus are not appropriate to consider at this dual-forest scale." RAR at 29. In fact, Appendix A of the RAR provides a list of issues that must be evaluated at the site-specific level, yet are not thoroughly analyzed in either the RAR Supplement or the route designation DEIS.
Accordingly, the RAR Supplement does not remedy the Forest Service's lack of comprehensive analysis of the existing travel system. For example, although this level of analysis is intended to identify "road-related issues, including their origin and basis, presented by general categories of environmental, socio-cultural and economic," the Forest Service simply relies on the generalized analysis of the original report. Moreover, although the RAR Supplement is intended to synthesize and assess the benefits, problems, and risks of the current road system, the Forest Service restricts this synthesis and assessment primarily to lists of documents that purportedly analyze the existing road system. However, as discussed throughout these comments, those documents and, most importantly, the route designation DEIS fail to evaluate the existing travel system on a route-by-route basis within the framework of the mandates of the Executive Orders.
The route-by-route analysis on the existing travel system must be conducted in conjunction with the designation of hundreds of miles of motorized routes. The Forest Service lacks a fundamental understanding of the ecological, social, and economic impacts of the existing travel system, such that the context of designating hundreds of miles of new routes cannot be fully understood. This analysis must be conducted in conjunction with the designation of hundreds of miles of motorized routes. It is not sufficient to merely indicate that conditions will be improved over current, cross-country conditions,
The Forest Service appears to justify this lack of analysis stating: "[m]ost roads and trails on the Fishlake National Forest significantly predate 1969 when no NEPA was necessary." DEIS at 25. Although this assertion may be true with regard to the creation of many roads, routes, and trails (i.e., non-motorized routes), the assertion is not true in the context of the action. Cumulative impacts analysis requires evaluation and assessment of the impacts associated with past activities on the Forest, including the intentional and user-initiated creation of the existing travel system.
As previously discussed, the Forest Service must take a comprehensive approach to travel management was recently confirmed by a federal court. There, the court rejected the Forest Service's suggestion that it could comply with NEPA by considering the impacts of motorized travel impacts at landscape or watershed scale, concluding: "[w]hile this court appreciates the Forest Service's daunting task of conducting a Forest-wide environmental assessment and respects its stated goal of conducting evaluations by priority areas, these practicalities do not mitigate its failure to comply with NEPA." Cent. for Sierra Nevada Conservation v. Berry, No. S-02-325, slip op. at 53 (E.D. Calif. Feb. 15, 2005). Accordingly, the Forest Service must consider the impacts of the comprehensive travel system on the Fishlake National Forest along with other foreseeable actions such as dispersed camping and continued route pioneering.
In addition, the Forest Service must evaluate the impact of user-created roads/routes on the Forest. The Forest Service appears to assume that because motorized recreation will now be managed as a designated route system, user-created road/route use and creation will cease. As discussed throughout this comment, such an assumption is not warranted. Numerous Forests, including the Wasatch Cache National Forest, have designated a transportation system, yet still are experiencing a proliferation of user-created routes.
This lack of analysis is exacerbated by the failure of the Forest Service to consider its enforcement capabilities. Again, the Forest Service appears to assume, without any analysis, that it will be able to enforce the designated route system.. Federal courts have previously recognized the significance of the issue of enforcement. For example, in Sierra Club v. U.S. Dept. of Agric., the Seventh Circuit Court of Appeals invalidated the Record of Decision for a Resource Management Plan based on the fact that
[w]hile the plan notes that ATV/OHM travel outside the designated trails is 'of great concern,' there is no attempt to identify specific enforcement efforts to address this problem or to explain why the Forest Service expects to be successful in restricting travel to the designated trails when its past efforts have been unsuccessful.
Sierra Club v. U.S. Dept. of Agric., 1997 WL 295308 at 29 (7th Cir. 1997). The court also noted that "the failure to . . . provide a meaningful analysis of the Forest Service's plans to enforce its trail regulations is of great significance in this case" because the environmental analysis assumes that motorized users will abide by the regulations. Id. (emphasis added). Accordingly, the Forest Service's analysis failed to comply with NEPA because it failed to discuss "what the increased environmental effects will be due to an inability to keep such users on the trails." Id.
The Forest Service cannot simply assume users will stay on trails when there is clear evidence that travel restrictions are often violated. Accordingly, the Forest Service must analyze its ability to enforce its designations and manage the impacts and respond to user-created roads/trails.
Similarly, the Forest Service cannot segment dispersed camping from the analysis of the route designation project. The Forest Service repeatedly acknowledges that dispersed camping is and will continue to cause adverse environmental impacts on the Forest. See DEIS at 9 ("The majority of motorized impacts are occurring . . . around popular dispersed campsites"). Significantly, the Forest Service intends to grant an "exemption" for certain dispersed campsites, but never analyzes the consequences of this action. Dispersed camping cannot be divorced from route designation as the two are inextricably intertwined or connected. Accordingly, the Forest Service must analyze the past, present, and foreseeable impacts of dispersed camping in conjunction with the route designation.
Therefore, the Forest Service must re-issue the DEIS with more thorough analyses of the cumulative impacts associated with the entire travel system, including dispersed camping, user-created trails/roads, and oversnow travel, as well as ubiquitous livestock grazing. In addition, the Forest Service must examine, not simply acknowledge, cumulative impacts on important resource values, such as declining and extirpated wildlife, riparian areas, and heritage resources.
THE FOREST SERVICE MUST CONDUCT COMPREHESIVE TRAVEL PLANNING
As discussed in the Three Forests Coalition's March 15, 2005 letter, only by conducting comprehensive travel planning can the Fishlake National Forest meet its land management obligations, as well as meet the purposes and needs of its OHV Route Designation proposal. The Forest Service must apply the criteria of Executive Order 11644 on a route-by-route basis to its existing and proposed travel system, must prepare a Forest-wide travel plan based on an understanding of the adverse impacts of ongoing motorized use of the Forest, and must undertake a thorough cumulative impact analysis as part of this travel planning. Having failed to do so in the DEIS, the Forest Service has failed to meet the mandates of NEPA, EO 11644, or the Forest Service's roads and off-road travel regulations.
Despite these legal obligations, the Forest Service contends "travel management planning is an analysis process that is used to identify resource and management issues and optimality considerations associated with the travel route network," which is much broader in scope than the route designation process. FAQ at 4. In contrast, according to the Forest Service the "primary focus of the Fishlake OHV Route Designation Project is to update and redesign the existing motorized travel plan map and rules." Id. However, in limiting this analysis to ORV route designation, the Forest Service has put the cart before the horse. An informed understanding of the impacts associated with motorized travel is necessary prior to adding hundreds of miles to a travel system that has never been adequately analyzed.
Apparently, the Forest Service contends that it was not required to conduct a travel planning analysis or NEPA analysis of the current routes system because "[m]ost roads and trails on the Fishlake National Forest significantly predate 1969 when no NEPA was necessary." FAQ at 4. This is an erroneous interpretation of NEPA's mandates. NEPA requires that environmental analyses are undertaken whenever an agency takes "a major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The Forest Service finalized travel plans, complete with maps, as a part of the Forest plan in 1986, amended in 1997 and 2004, under which all routes should have been analyzed in a comprehensive NEPA analysis. The Forest Service cannot turn a blind eye to its past improprieties by adding routes to a travel system that has not been in compliance with the law.
In addition, the Forest Service's suggestion that the agency has no obligation to conduct NEPA analysis on past road creation has been rejected by federal courts. In Center for Sierra Nevada Conservation, the court recognized that in enacting NEPA, Congress provided "a mandatory chronological arrangement, instructing that a NEPA analysis must be completed before committing resources." Ctr. for Sierra Nevada Conservation v. Berry, No. S-02-325, slip op. at 51 (E.D. Calif. 2005). Accordingly, plaintiffs prevailed in a challenge to the Forest Service's lack of NEPA analysis prior to completing a 1990 ORV Plan. The court concluded that the trail system had not been adequately analyzed in the Forest Plan EIS and the Forest Service violated NEPA by not "analyzing the environmental impacts of any particular ORV routes in the Forest or of permitting travel off of designated routes." Id. at 52. In response to the Forest Service contention that it could prioritize its analysis of the travel system, the court responded that
[w]hile this court appreciates the Forest Service's daunting task of conducting a Forest-wide environmental assessment and respects its state goals of conducting evaluations by priority areas, these practicalities do not mitigate its failure to comply with NEPA.
Id. The Court concluded that by creating "a Forest-wide ORV Plan" without a comprehensive Forest-wide analysis of the travel system with "specific analysis" rendered the 1990 ORV Plan in operation in violation of NEPA.
The Fishlake National Forest is susceptible to an identical claim. The Fishlake National Forest is currently operating under a Forest-wide travel plan that has not been analyzed in the manner prescribed by NEPA. The Forest Service now intends to add hundreds of miles of routes to a system without examining, acknowledging, or understanding the impacts of the existing travel system. Accordingly, the Fishlake National Forest intends to exacerbate current illegalities under the existing travel system.
The preparation of the Route Designation DEIS does not remedy the existing illegalities of the Fishlake travel system by purportedly analyzing "routes that are added to the classified system." FAQ at 4. In a reissued DEIS, the entire system must be analyzed in a comprehensive environmental impact statement.
THE FOREST SERVICE MUST APPLY THE MINIMIZATION CRITERIA ON A ROUTE-BY-ROUTE BASIS
The DEIS almost completely ignores the criteria set forth by Executive Order No. 11644, and codified in the Forest Service's regulations, mandating that the Forest Service's designation of areas and trails open to motorized use "shall be in accordance with the following
(1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of public lands.
(2) Areas and trails shall be located to minimize harassment to wildlife or significant disruption of wildlife habitats.
(3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring lands, and to ensure compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.
Despite this clear mandate, the Forest Service repeatedly misconstrues its obligations to apply the minimization criteria at a site-specific level during the route designation process.
For example, the Forest Service states that "OHV use can be restricted or prohibited to minimize: 1) damage to soil, watershed, vegetation, or other resources of public lands; 2) harm to wildlife or wildlife habitats; and 3) conflict between the use of OHVs and other types of recreation." DEIS at 2; emphasis added This mandate is a binding obligation, not a discretionary function. Courts recognize that agency compliance with Executive orders is subject to judicial review. As stated by the Ninth Circuit:
We have recognized, however, that under certain circumstances, Executive Orders, with specific statutory foundation, are treated as agency actions under the Administrative Procedure Act.
City of Carmel v. U.S. Dept. of Transportation, 123 F.3d 1144, 1166 (9th Cir. 1995).
In other words, an Executive Order is to be "accorded the force and effect of a statute" when it has a "distinct statutory foundation." Ass'n for Women in Science v. Califano, 566 F.2d 339, 344 (D.C. Cir. 1977). Because Executive Order 11644 has a statutory basis in the National Environmental Policy Act (NEPA), the organic statutes governing the Forest Service, and the authority of the federal government to administer federal lands, the Executive orders are a proper basis, with the effect of a statute, to restrict and manage off-road vehicle use. In fact, the Ninth Circuit has recognized that "[u]nder the codification of the applicable Executive Order, the court concludes that the Defendant were charged to minimize likely future conflicts between Forest users." Northwest Motorcycle Ass'n v. U.S. Dept. of Agriculture, 18 F.3d 1468, 1477 (9th Cir. 1994).
In addition, a federal court has recently acknowledged that "Executive Order 11644 created a policy striking a balance in favor of resource protection." ." Cent. for Sierra Nevada Conservation v. Berry, No. S-02-325, slip op. at 53 (E.D. Calif. Feb. 15, 2005). The mandate of Executive Order 11644 applies both to the existing travel system and any proposed designations proposed by the DEIS.
However, in violation of Executive Order 11644, the Forest Service has not applied the minimization criteria to the existing travel system nor applied the minimization criteria to any route proposed to be designated open in any meaningful, open, accountable way under the current DEIS. By failing to apply the minimization criteria, the Forest Service is running afoul of the Executive Order and allowing considerable adverse impacts to the ecological integrity of the Forest to continue. Accordingly, the Forest Service must undertake a route-by-route assessment of all routes designated open or proposed to be designated open to ensure the route is located to minimize damage to soil, watershed, and vegetation, harassment of wildlife, disruption of wildlife habitats, and conflicts with other quiet uses of the Forest.
THE FOREST SERVICE MUST EVAULATE ITS CAPACITY TO IMPLEMENT MITIGATION MEASURES AND THE LIKELY EFFECTIVENESS OF THE MITIGATION
The mitigation proposals contained within the EIS are troublesome because it is difficult to comprehend how they could be effectively implemented. Essentially, while the majority of mitigation proposals appear viable on the surface, there is lack of analysis of their overall effectiveness and of the Agency's physical ability to implement them. Additionally, the Forest Service intimated within the EIS that implementation of these measures will be difficult due to a lack of funding. The Forest Service is required to provide an explanation of why alternatives were eliminated from consideration. 40 C.F.R. 1502.14 . To be clear, the Forest Service failed to provide an adequate basis for eliminating the Natural Heritage subset alternative from consideration The development Natural Heritage alternative followed the Forest Service's articulation of the narrow criteria upon which alternative would be developed. Nonetheless, without adequate reason, the Forest Service failed to consider this "significant alternative" representing the collaborative efforts of Utah's conservation community. See Dubois, 102 F.3d at 1286. Taken together, the ability of the Forest Service to implement the proposed mitigation measures is suspect.
Specific proposed measures, such as trail obliteration, are very resource intensive. To state that the prescription of obliteration of the current motorized trials "will include installation of self-maintaining cross drainage and removal of structured stream crossings assuring that natural channel dimensions and gradient are restored" is quite an ambitious undertaking. DEIS at 36. Also questionable is the assumption that because "[a]ll obliterations will use signage, barriers, and/or re-contouring of slope contours" that this will "prevent motorized use of the obliterated route." DEIS at 36. So too is the expectation that "[e]ach action alternative includes the installation of new barriers" with the expectation that these barriers will "eliminate or restrict motorized travel." DEIS at 37.
In general, an agency may not defer important agency decisions in the guise of mitigation measures. Jones v. Gordon, 792 F.2d 821, 829 (9th Cir. 1986); see also Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1173 (10th Cir. 1999) (in an EIS, "[i]t is not enough to merely list possible mitigation measures") (citing Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1380 (9th Cir. 1998) (perfunctory description of mitigating measures falls short of "hard look"). Where the effectiveness of the mitigation measures depends upon how they are applied and enforced, and the latter is uncertain, the measures are suspect. Jones v. Gordon,[11] 792 F.2d at 829; Greenpeace U.S.A. v. Evans, 688 F.Supp. 579, 585 (W.D.Wash 1987).
THE FOREST SERVICE FAILED TO ASSURE COMPLIANCE WITH THE CLEAN WATER ACT
The goal of the Clean Water Act (CWA) is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." To this end, the CWA requires federal agencies to comply with state water quality standards. 33 USC §§ 1323, 1313.
Many watercourses in the Fishlake National Forest are in violation of Utah's Water Quality Standards and are not meeting their beneficial uses as defined by the Clean Water Act. EA at 3-22, see also Utah Department of Environmental Quality, Division of Water Quality "Utah's 2002 303(d) List of Waters" (August 2002) at 45. The Natural Heritage subset alternative provides additional and necessary protective measures necessary to comply with the Clean Water Act. The Forest Service lacks adequate information to determine the current water quality of waters potentially impacted by the project and to determine the impacts that the project and its alternatives will have on these waters. Accordingly, the Forest Service must re-issue the DEIS with more extensive water quality assessment requirements.
THE FOREST SERVICE FAILED TO ASSURE COMPLIANCE WITH THE NATIONAL HISTORIC PRESEVATION ACT
Congress enacted the NHPA in 1966 to implement a broad national policy encouraging the preservation and protection of America's historic and cultural resources. See 16 U.S.C. §§ 470(b), 470-1. NHPA requires federal agencies to "take[ ]into account any adverse effects on historical places from actions concerning that property." Friends of the Atglen-Susquehanna Trail Inc. v. Surface Transp. Board, 252 F.3d 246, 252 (3rd Cir. 2001); see 16 U.S.C. §§ 470(f), 470h-2(d).
The Forest Service fails to provide any indication of procedures followed to comply with the National Historic Preservation Act (NHPA). Specifically, in order to comply with the NHPA the Forest Service must: 1) delineate the "area of potential effects" (36 C.F.R. § 88.4(a)); 2) in consultation with the State Historic Preservation Office, take reasonable steps to identify historic properties within the area of potential effects (36 C.F.R. § 800.4(b)); 3) assess whether the route designations and indirect impacts, such as dispersed camping, would adversely impact historic properties (36 C.F.R. § 800.5(a)(1)); 4) document the Forest Service's determination of adverse effect (36 C.F.R. § 800.11(d) or (e)) and; 5) avoid, minimize, or mitigate adverse effects on historic properties (36 C.F.R. § 800.6(a)).
Strikingly, the Forest Service has not undertaken the necessary procedures required by the NHPA despite acknowledging that "[m]any of the historic sites of the Forest have been impacted by ATVs to some extent." DEIS at 204. Moreover, the Forest Service recognizes the existence of a substantial number of historic sites within "exemption areas." DEIS at 205, Table D-4.
Importantly, NHPA's implementing regulations mandate that "[t]he view of the public are essential to informed Federal decision making in the section 106 process." 36 CFR § 800.2(d). Accordingly, "the agency official shall seek and consider the view in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties." 36 CFR § 800.2(d).
Therefore, the consultation process under the NHPA requires specific procedural steps be taken with the involvement of the public. However, for this project, the Forest Service has failed to demonstrate compliance with any of the procedural steps under the NHPA and has failed to implement measures to avoid, minimize, or mitigate impacts to cultural resources, as required by the statute. Rather, the Forest Service appears to have provided an "exemption" for activities that increase the likelihood of adverse impacts to cultural resources.
The Forest Service must reissue the DEIS with a demonstration of adequate compliance with the NHPA and provide the public with the opportunity to provide input on the various alternatives and appropriate measures to protect cultural resources.
MONITORING PLAN
The Monitoring plan outlined in the Implementation Plan raises critical questions related to the designation process and fails to articulate key opportunities for improving recreation and ecosystem management. The monitoring plans calls for the Forest to "continue motorized use monitoring on the Paiute ATV Trail and the Great Western Trail Systems" (p. 177). However, the DEIS does not appear to take this information into account for the designation process it describes, as no specific reference is again made to monitoring outside of that done for the Forest Plan Revision. Did the Forest use motorized use monitoring on the Paiute ATV Trail and the Great Western Trail Systems when proposing route designations discussed in this DEIS?
The plan contains no provision for or encouragement of citizen input. During a time of declining budgets and shrinking field capacity, the Forest should be encouraging partnerships with organizations interested in monitoring the impacts of off-road vehicle use and other forms of recreation on Forest land, water, wildlife, and other visitors.
The plan also calls the Forest to "summarize travel plan violations by type and number and by user demographic" (p. 177) but not by location. Further, the plan merely suggests that these violations will be analyzed but does articulate how management will adapt given the violations. Such a public forecast of agency punitive response to locations and degrees of motorized behavior that is not in compliance with new rules on the Forest may be helpful in deterring violations in the first place.
The monitoring plan's reference to "summarize[ing] user comments from trailhead census locations and from comments submitted by the public (p. 177) seems to refer to designation implementation recommendation: "OHV census points should be added at trailheads and kiosks to collect user comments on system safety, needed improvement, and customer satisfaction" (p. 172). This recommendation and follow-up monitoring analysis appears to neglect the comments and desires of non-motorized recreationists who may come into conflict with legal or illegal off-road vehicle use on the Fishlake. In an effort to achieve parity and provide better monitoring information, the Forest should place and maintain non-motorized trailhead kiosks where the agency can collect census and comments on user types and levels as well travel "system safety, needed improvement, and customer satisfaction." [12]
Finally,
the lack of monitoring proposed for impacts of ORV route density and use
on the natural heritage of the Forest is exacerbated by the absence of
designated reference areas
(100-1,000 acres for every major vegetation type) on the Fishlake NF that are
free of
ORVs, roads, water diversions, and livestock grazing for the past ten years.
The Forest
severely hampers its understanding of the impacts of ORV use and route density
if it does
not designate reference areas.
IMPLEMENTATION PLAN (Appendix B): EXERCISE PRECATIONARY PRINCIPLE INSTEAD OF RELYING ON UN(DER)FUNDED MITIGATION
Generally, many of the problems the Fishlake National Forest hopes to mitigate in the implementation plan are better avoided through by designing a more discrete, enforceable, and affordable system of designated off-road vehicle routes. For instance, in the DEIS the Forest recognizes the threat to natural resources posed by increased use of Level 2 roads unauthorized user-created "unclassified" routes. On page 170 of the DEIS, the Forest writes:
Fishlake Roads Analysis consistently indicate that the greatest potential for impacting water resources is associated with the maintenance level 2 system roads and unclassified roads that are much more abundant than ML 3, 4, and 5 roads. Most of the total number of stream crossing, and encroaching or riparian roads are associated with level 2 and unclassified roads.
The Forest violates the precautionary principle by designating many of these routes and declaring that these routes will need to "be evaluated and addressed over time." This evaluation must take place now based on existing data and an analysis of the agency's economic resources needed to conduct appropriate monitoring as discussed in the section of these comments titled "Faulty Assumptions Regarding Maintainability." Should the agency consider these essential but currently missing factors in their analysis, they would find good reason to follow their own advice regarding aquatic restoration: "Encroaching and riparian routes should be obliterated when excess to long-term transportation needs, or if the route cannot be redesigned to prevent undue resource damages" (p. 167).
Finally, as noted above in the Wildlife section, neither the Draft EIS nor the WSR indicate what, if any, monitoring of ORV use/route density impacts on the native wildlife of the Forest will be undertaken following implementation of the plan.The Draft EIS notes only that n "Resource specific monitoring of motorized use impacts should be included in the monitoring summary"( DEIS 178, emphasis added). This is wholly inadequate, given the myriad adverse impacts that may accrue to native wildlife and their habitats by ORV use, routes, and uncontrolled off-route driving.
IMPLEMENTATION PLAN (Appendix B): NOXIOUS WEEDS
The DEIS concerns itself with the spread of noxious and invasive weeds and anticipates the need to treat additional weed infestations spread by off-road vehicles but again proposes to violate the precautionary principle when discussing invasive plants: "Designate a motorized route system to provide greater certainty about where invasive plants are likely to be introduced, perpetuate, spread, and require treatment" (p. 165). In this same section, the agency requires commercial equipment used by Forest Service contracts "be washed free of noxious weed seeds prior to entering National Forests" and that Forest Service off-road vehicles be washed and free of seeds. However, the Fishlake proposes a double standard for citizen visitors to the Forest when the DEIS proposes only to "educate and strongly recommend to the public that all OHVs be washed and free of any weed seed before coming onto the Forest" (p. 165). An invasive species seed does not distinguish between a Forest Service contract vehicle and an ORV. The Forest should require that all off-road vehicles be washed before and after each ride on Forest Service lands.
IMPLEMENTATION PLAN (Appendix B): ENFORCEMENT
The Implementation Plan in the DEIS gives embarrassingly scant attention to the issue of enforcement. First, this section of the Implementation Plan says "The Forest should begin to consider funding for the out year budget cycles that will be needed to implement the enforcement, public education, signing, barriers, gates, road closures, and INFRA updated that will be required" (p. 171; emphasis added). Enforcement needs and capacity must be carefully analyzed and compared during, not after the route designation process if the Forest is to expect success if the desired result of the project goal is to be achieved: "to provide ample motorized recreational opportunities that minimize the potential for user conflicts and resource impacts, and to create a system that can be maintained over time with the resources available to the Forest" (p. 1).
Otherwise, the agency makes only two other vague and toothless recommendations regarding enforcement: "prioritize and manage it use of law enforcement" and increase "travel plan violations . . . to the maximum extent practical" (p. 171). This utter denial of the importance of law enforcement to manage a use which , along with livestock grazing, has the greatest potential on the Forest to damage natural resources, as well as the greatest potential to jeopardize visitor safety, create demands on local search and rescue and emergency personnel, and create conflicts with other users, is unacceptable. Again, the agency should conduct a fiscal analysis of the Forest's capacity and the effectiveness of that capacity at meeting the enforcement needs on the Forest. Such an analysis would reveal that the Forest must scale back its proposed network of routes to a size and design that it can afford and has the capacity to enforce, monitor, and maintain.
The Forest should be commended for the commitment it makes to obliterate unclassified motorized routes. Keeping this commitment is essential to the success of permanent closures. A 2004 report conducted on behalf of Montana organization Swan View Coalition and others(and provided to the Fishlake NF Planning Team by the Three Forests Coalition during 2004) demonstrates the ineffectiveness of closure devices instead of route obliteration. In a press release of the study issued on February 15, 2005, the conservation groups report:
Kalispell, MT - Local conservation groups today released a report finding less than half of Forest road closure devices in the Swan Valley are actually stopping motorized vehicles in order to secure wildlife habitat. The report finds gates the least effective road closure device, followed by permanent physical barriers such as earthen berms and boulders. Roads closed by removing culverts and by re-vegetating the road were 100% effective.
The survey was conducted in the Swan Valley in 2004 and assessed the effectiveness of 256 road closures on-site. The survey found 52% of these road closures had tracks of motorized vehicles either driving over or around permanent closure devices or through gates left unlocked. Another 10% of the closures were locked gates that nonetheless had tracks of motorized vehicles passing through them, indicating either recent administrative use or trespass by unauthorized persons with gate keys.
Conversely, only 38% of the road closures were found to be effective at eliminating public motorized trespass and reducing administrative use to near zero . . . .
The report found culvert removal and/or re-vegetation of the road by trees and brush to be 100% effective. Permanent barriers, such as earthen berms or boulders, were 43% effective. Gates were only 29% effective.
The Forest should also be commended on aspects of its implementation plan that call for riparian route obliteration (p. 167) as well as an inventory of "route crossings that create barriers to migration of aquatic organisms and small mammals" (p. 169-70). However, the Forest fails to commit to act on this inventory. Further the Forest calls for only partial restoration of stream crossings, allowing for off-road vehicles to continue to pass directly through streambeds, eroding banks and increasing sedimentation of fish spawning and other aquatic species habitat (p. 167-68). Instead, in its Implementation Plan the Forest should commit to installing culverts bridges, culverts and drainage devices wherever they are unable to reroute a motorized route so that it does not cross a stream in the first place.
As discussed above there is a documented rider preferences for riding off-route. This conflicts with the faulty assumption in the DEIS that "unplanned and unmaintained routes will not proliferate because adequate recreational activity is available in a well-planned system of trails and roads" (p. 10), the forest should consider redirecting funds earmarked for public education on new designated routes rule to instead pay for enforcement personnel.
THE FOREST SHOULD CLOSE AND OBLITERATE ALL UNNECESSARY ROADS
The agency has several options when it comes to streamlining the travel system by closing travelways. Closures can range from access restriction such as gates, to culvert removal and the installation of waterbars, to complete removal/obliteration of the travelway incorporating culvert removal with re-contouring the slope back to natural conditions. Complete obliteration is the best option for both ecological and fiscal reasons.
From an ecological perspective, road obliteration reduces sedimentation to streams, disperses concentrated water back into the ground, reduces habitat fragmentation, reduces the continued spread of invasive weeds, restores connectivity and restores the amount of arable land for vegetation/habitat.
Economically, road removal saves money by reducing maintenance costs and reducing the costs associated with mitigating the impact of roads. Road removal also requires the use of heavy machinery, thus increasing the number of high-skill, high-wage jobs in a community. According to "Investing in Communities, Investing in the Land: A Summary Report" by Wildlands CPR, a comprehensive national road removal program on Forest Service lands could provide more than 3,000 jobs economy-wide (see http://www.wildlandscpr.org/resourcelibrary/reports/Economic%20Report/EcoSummaryIndex.htm). Not only does road removal save money, it also provides jobs and an investment opportunity for small and large communities alike. Although complete obliteration is initially more costly than road closures or partial road removal, in the long-term, it often is less expensive than keeping the road on the system and gating it. If ecological benefits and costs are added into the equation, complete obliteration can be very cost-effective.
Complete obliteration involves ripping the roadbed from two to two and a half feet deep, removing stream crossings, restoring hydrologic flow, and moving the discarded road fill (the bottom of which is the original topsoil layer) into the road cut or other stable position. Partial obliteration, which generally involves partial ripping, installation of water bars, and/or partial outsloping, may not fully restore the land and watershed, but it is also a good approach. Road closure alone is much less effective, and may result in increased erosion, as maintenance priorities are often neglected on closed roads. In addition, road closure devices are easily vandalized and bypassed by motorized vehicles. Numerous studies have documented their high failure rates.
The Forest should close and obliterate unused administrative and Forest management roads. According to the Forest Service Manual 7703.1, the agency is required to: "Reestablish vegetative cover on any unnecessary roadway or area disturbed by road construction on National Forest System lands within 10 years after the termination of the activity that required its use and construction." Most timber sale project analyses do not consider the eventual impacts of continued use of these roads by motorized recreationists. This use can be significant and such former timber/mining/grazing roads provide a main mechanism for the spread of renegade routes. The plan must consider aggressive obliteration of these roads when the specific projects for which they were constructed are completed. Such planning should also be factored into whatever project plans lead to the development of the road in the first place.
THE FOREST SHOULD INSTITUTE A USER CONFLICT REPORTING SYSTEM
As the Forest relies on the Accident Surveillance Program to track, analyze, and adapt management in response to accidents, the Fishlake should develop and institute a user conflicts reporting system. This should be done by establishing kiosks at non-motorized trailheads (in keeping with a strategy the Forest intends to use to inform motorized users a off-road vehicle route trailheads). As is discussed extensively elsewhere in these comments, the Forest presents insufficient analysis of user conflicts in the DEIS. A user conflicts reporting system would provide the Forest with a means to gathering this overlooked but important data. Furthermore, an analysis of user conflicts is essential to effective application in route designation of the minimization criteria outlined in Executive Order 11644. Again, this is a case where an issue raised in the implementation plan should also be directly dealt with during the designation process.
Page 'i' of the DEIS outlines some basic aspects of the proposed action including adding 455 miles of classified routes to the motorized travel system, removal of 75 miles of classified motorized routes, closure of the Forest unit to cross country motorized travel off designated routes would be prohibited except on 4 designated cross country motorized use areas (three near Richfield totaling 780 acres and 1 on the Velvet Ridges totaling 189 acres. The alternatives also include an implementation plan that identifies strategies for managing risks from motorized use and infrastructure, enforcement considerations, public education plans, monitoring requirements, and, strategic considerations for future travel planning decisions. This is a monitoring plan that is not reflected in, and at times may conflict with, the aggressive Forest Plan monitoring already committed to. The monitoring plans proposed should be incorporated into the Forest Plan monitoring direction in a way that it complements and improves the monitoring program, not setting up duplicate and parallel monitoring programs that at times would conflict.
A primary driving factor that illustrated the need for this project is the results of the aggressive monitoring program committed to in the Forest Plan and its associated ROD and FEIS. The "primary issues" that the purpose and need and alternative development are based upon is Forest Plan travel plan enforcement and monitoring activities "have revealed that the current travel plan has several fundamental design flaws that prevent understanding and adherence to travel regulations by the public and that "The travel plan is therefore difficult to enforce." (EIS page 19).
DEIS page 8 identifies the project area as being the Fishlake National Forest (FNLF), including inholdings inside the Forest boundary. Page 18 of the DEIS says that the scope of the project is limited to existing roads and trails and that, "no Forest Plan amendments are necessary to implement any of the proposed alternatives." However, it is unclear how any of the proposed alternatives can be approved without an amendment to the Forest Plan. This is because of the issues raised below, and also because the alternative development and analysis in the DEIS has resulted in action alternatives that are inconsistent with Forest wide and management area specific direction in the form of DFC, goals, objectives, and standard and guideline mitigation measures. One example is that the DEIS repeatedly refers to the direction for "Desired Conditions" but that is not in the Forest Plan. The Forest Plan has desired future conditions, but the alternatives are not developed with this Forest Plan direction in mind. Other direction in the plan for TES/MIS species management, monitoring, evaluation and protection also is not incorporated or used. Even some of the Forest Plan direction from chapter IV of the Plan and its appendices specific to the travel plan development, updating, standards/guidelines, and monitoring are not relied upon, which results in a range of action alternatives that would be inconsistent with Forest Plan travel plan direction.
Below, we will outline other reasons why a Forest Plan amendment will be required for approval of any action alternative. This needs to be addressed in the new or revised Draft EIS that is needed, as mentioned in earlier sections of these comments.
We express concerns regarding characterizations of the Forest Plan/FEIS in some parts of this environmental document that are not supported, and areas where the Forest Plan direction for the travel plan appears completely overlooked in the analysis and/or is consistent with the alternatives analyzed in detail.
This EIS and subsequent decision document will be tiered to the Forest Plan and the Forest Plan FEIS. See Forest Plan page I-2, ROD approving the current Forest Plan alternative based on the impacts analysis in the Forest Plan FEIS. See Forest Plan FEIS page 5 as well. Correctly, the DEIS indicates this, yet denies direction in the Forest Plan and travel plan and travel planning analysis that is site specific in the Forest Plan FEIS.
The travel plan is a part of the Forest Plan, and was analyzed in the Forest Plan FEIS NEPA analysis. The travel plan that was selected in the 1986 ROD approving the Forest Plan is located in Forest Plan appendix P. (Forest Plan, Forest Plan FEIS, and the ROD approving the selected Forest Plan based on the FEIS are incorporated into these DEIS comments with CD attachment B.) The Forest Plan's travel plan and road -- trail system management and planning direction that was analyzed in the Forest Plan FEIS has also been amended by a number of subsequent NEPA decisions. Each of these amendments to the travel plan and road/trail direction and planning included the required amendment to the Forest Plan. A few examples of these NEPA decisions that amended the travel plan and road/trail management direction that are parts of the Forest Plan include[13]:
(1) The EA and DN/FONSI for "Forest Plan Amendment 1 Travel Management On Fishlake Mountain." This is a Forest Plan amendment to the Forest Plan travel management direction to allow motorized travel on a designated route to Tasha Spring and for snowmobiling in the winter. The Forest Plan travel plan map as well as site specific restrictions on OHV travel use were also amended by this non-significant Forest Plan amendment, as the travel plan in the Forest Plan had prohibited motorized and mechanized trail use on this road and in the area.
(2) "Amendment Number 2 to the Land and Resource Management Plan" also included an amendment to the Forest Plan travel map that was site-specific to OHV trail designations and area restriction boundaries.
(3) 1995 "Road and Trail Rights of Way Acquisition Plan. This amendment to the Forest Plan, received by UEC in early 1999 for its FOIA for the Forest Plan and amendments, explains, "This document comprises the narrative section of the long-range Forest Road and Trail Rights-of-Way Acquisition Plan. The Forest Transportation Plan," ... "contain the basic inventory from which this information was compiled and which are made a part of this plan by reference." Page three of the Forest Plan amendment notes that, "There are currently 1,189 miles of trails on the Forest. Of this number 714 miles are open to OHV's with the remaining 475 miles reserved for non-motorized use." It also commits the Forest to direction from the 1994 Fishlake Recreation strategy and to annual reviews of the inventory/priority list of needed roads and trails. Page five also notes a decision not to obliterate about 50% of the 1,200 miles of roads on the Forest that were to be obliterated per the 1988-1989 Forest Management Team evaluation of the transportation system on the Forest, which had found that 1,200 miles of roads were "not needed and/or were contributing to unwarranted resource impacts." This DEIS does not disclose this NFMA and NEPA analysis, nor does it disclose why those 600 miles of roads are now needed and/or no longer contributing to unwarranted resource impacts. Direction from this Forest Plan amendment that assigned a new planning and an annual action plan for motorized road/trail management are also not disclosed or used to guide alternative development or impacts analysis in this DEIS.
The Forest Plan travel plan, located in the attached Forest Plan appendix P was included in the Forest Plan FEIS analysis. In light of the above examples, Forest Plan amendments have been triggered in the past when amendments to the travel plan and/or its map have been required. These were done in light of NEPA analysis and decision documents. The OHV DEIS denies this.
Furthermore, Forest Plan 'general direction' for trail system management on page IV-46 of the Forest Plan directs, "1. Maintain all trails to meet standard of use designated in Travel Plan. 2. Maintain all trails to the following minimum requirements: A. Structures are structurally sound and safe for specified class of user, B. Maintain drainage structures to prevent unacceptable resource damage, and C. Remove hazards from trails to allow safe passage for specified class of users." Forest Plan page IV-43 general direction for transportation system management activities directs, "1. Classify areas as to whether off-road vehicle use is permitted." The corresponding standard is, "Specify off road vehicle restrictions based on ORV use management (FSM 2355)." The following page of the Forest Plan continues with more general direction for transportation system management activities, "2. Manage road use by seasonal or permanent closure if:
A. Use causes unacceptable damage to soil and water resources due to weather or seasonal conditions
B. Use conflicts with the ROS class established for the area;
C. Use causes unacceptable wildlife conflict or habitat degradation;
D. Use results in unsafe conditions;
E. The road does not serve an identified public or administrative need;
F. Area accessed has seasonal need for protection or nonuse; or
G. Financing is not available to maintain the Facility or manage the Associated use of adjacent lands."
The travel plan approved in the Forest Plan includes site-specific decisions regarding motorized road and trails on the Forest, and subsequent Forest Plan amendments to the travel plan have also done the same.
The Forest Plan FEIS also addressed the Forest Plan's travel plan. For example the Forest Plan FEIS page VI-119 response to the Forest Plan travel plan comments submitted by the Salina Lions Club sponsored meeting on the (then) proposed travel plan portion of the (then) proposed Forest Plan show that the (proposed) travel plan was a significant issue for the Forest Plan EIS. Including the travel plan in the Forest Plan addressed issues raised in the Forest Plan NEPA analysis. For example, in response to the Forest Plan comment, "Do not close any roads within the Salina Canyon Drainage" the Forest Plan FEIS response is, "The objective of the Forest Travel Plan is to provide the broadest possible travel and recreation opportunities consistent with resource and public demands. When in conflict, resource needs over-ride public demand." Forest Plan FEIS page VI-72 also states, "If specific areas are identified where snowmobile use is harassing wintering wildlife, the Travel Plan (Plan Appendix P) can be changed to relieve the problem."
Furthermore, page 8 of the ROD implementing the Forest Plan (in CD attachment B) says that, "The second major issue raised was about travel management." ... "Many felt that the travel management portion of the Forest Plan was too restrictive of ORV travel. Others supported the concept of travel restrictions to provide sanctuary and protective areas for big game. Forest management is concerned that the proliferation of wheel tracks is causing unacceptably high erosion, which is damaging the basic resources of soil and vegetation. Where possible, modifications of the travel management plan were made to allow over snow machines. However the need to protect the basic resources and to provide big game resting areas prevented relaxation of travel management standards." Thus, even the ROD mentions NEPA analysis and approval of a Forest Plan that includes the travel plan, and noted the decision to not relax travel management standards. Standards and guidelines are mitigation measures in the ROD that approved the Forest Plan that are to be enforced in all project level activities. This includes standards and guidelines such as maintaining the ROS and viable populations of MIS. (Forest Plan ROD page 20.)
In conclusion, the Forest Plan includes a travel plan and map, a monitoring program for this. Direction in chapter IV and other chapters of the Forest Plan reflect this. The Forest Plan FEIS relies upon the Forest Plan travel plan to respond to issues and mitigate impacts, and the ROD implementing the plan commits to travel management standards while referring to the travel plan that is a part of the approved Forest Plan.
In light of the above the characterization of the Forest Plan FEIS and the Plan's direction is arbitrary throughout the DEIS. For example DEIS page 24 states, "Forest Plans are not intended to make site-specific decisions such as those necessary to create a motorized travel plan" and the next page of the DEIS claims that, "User created routes developed since 1969 have not been analyzed under NEPA." The above is not correct because the Forest Plan includes and its FEIS analyzes the Plan's travel plan, even treating the inclusion of the travel plan in the Forest Plan as a mitigating measure to address soil, water, and wildlife impacts resulting from user created motorized routes.
Page 38 of the FEIS says that, "The current travel plan responds to those who desire and "open unless signed or mapped closed" policy. The "current" 1997 Forest Recreation Map uses the following designations..." The travel plan that is in the Forest Plan as amended identifies many areas both in the appendix P Travel Plan map and corresponding direction in the plan identifies many areas across the forest as closed or restricted to motorized travel without indicating it is in response to a "open unless signed or mapped closed policy." Perhaps more important here, is that the DEIS uses the 1997 travel map as the no action alternative when that would in reality be an action alternative due to subsequent amendments to the 1997 travel map.
The Monitoring Plan proposed (see DEIS page 177) will need to be incorporated into the Forest Plan because this travel plan monitoring is different from, and at times appears to conflict with, the monitoring plan committed to in the Forest Plan.
In conclusion, the TFC welcomes further dialog on how the Forest Service intends to address and resolve the significant issues raised here. We look forward to amicable resolution and a complete analysis of the Natural Heritage Alternative in a supplemental DEIS. The Three Forest Coalition does not mean to indicate that the closure to cross country travel should be slowed. On the contrary, the line officer should sign an order preventing such activity immediately.
Sincerely,
Sean Phelan, Esq.,
Western Resource Advocates,
Salt Lake City, Utah
Mary O'Brien
Grand Canyon Trust,
Flagstaff, Arizona
Kevin Mueller,
Utah Environmental Congress,
Salt Lake City, Utah
Jason Kiely
Wildlands C.P.R.,
Missoula, Montana
Tim D. Peterson
Idiom Environmental Consulting,
Moab, UT
Chaitna Sinha,
Southern Utah Wilderness Alliance,
La Verkin, Utah
On behalf of the undersigned:
Alison Jones,
Wild Utah Project,
Salt Lake City, Utah
Dan Kent
Red Rock Forests,
Moab, Utah
Ray Wheeler
Colorado Plateau Institute,
Salt Lake City, Utah
Dan Miller
Bear River Watershed Council,
Richmond, Utah
Kevin Walker
Utah Chapter, Sierra Club,
Moab, Utah
Suzanne Jones,
The Wilderness Society
Denver, Colorado
Julian Hatch
Western Watersheds Project -- Southern Utah,
Boulder, Utah
KEY SCIENTIFIC DOCUMENTS
RELEVANT TO
DIXIE, FISHLAKE, AND MANTI-LA SAL NATIONAL FOREST
MANAGEMENT FOR SUSTAINABILITY
Installments 1 - 5
2004
Sustainable Multiple Use Alternative
Three Forests Coalition
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Seabloom, Eric, Sanley Harpole, OJ Reichman, and David Tilman. 2003. Invasion, competitive dominance, and resource use by exotic and native California grassland species. Proceedings of the National Academy of Sciences 100(23):13384-13389. www.pnas/org/cgi/doi/10.1073/pnas.18357281000.
Sweanor, Linda L., Kenneth A. Logan, and Maurice G. Hornocker. 2000. Cougar dispersal patterns, metapopulation dynamics, and conservation. Conservation Biology 14(3): 798-808.
Thomas, JA, MG Telfer, DB Roy, CD Preston, JJD Greenwood, J Asher, R Fox, RT Clarke, and JH Lawton. Comparative losses of British butterflies, birds, and plants and the global extinction crisis. Science 303:1879-1881.
Trombulak, S.C., and C.A. Frissell. 2000. Review of ecological effects of roads on terrestrial and aquatic communities. Conservation Biology 14: 18-30.
U.S. Forest Service. Economic Effects, USDA Forest Service Strategic Plan (2000 Revision). Appendix D.FS-682, October 2000, www.fs.fed.us/plan
U.S. Forest Service, Manti-La Sal National Forest, Ferron-Price Ranger District. 1996 Continuing Education in Ecosystem Management Team (for the Manti-La Sal National Forest). Huntington Analysis Area Landscape Assessment. June.
U.S. Geological Survey. 2002. Precipitation history of the Colorado Plateau Region, 1900-2000. USGS Fact Sheet 119-02.
Van Dyke, FG, RH Brocke, HG Shaw, BB Ackerman, TP Hemker, and FG Lindzey. 1986. Reactions of mountain lions to logging and human activity. Journal of Wildlife Management 50(1): 95-102.
Welch, Bruce, and Craig Criddle. 2003. Countering Misinformation Concerning Big Sagebrush. Research Paper RMRS-RP-40. Ogden, UT: US Department of Agriculture, Forest Service. Rocky Mountain Research Station.
Wildlands CPR. Investing in Communities, Investing in the Land. Summary Report. Summary of: Ihara, Daniel, Steven Hackett, and John Manning 2003. Reinvestment in Jobs, Communities and Forests: The Benefits and Costs of a National Program for Road Removal on U.S. Forest Service Lands, A Preliminary Analysis. The Center for Environmental Economic Development. Arcata, CA.
Wildlands CPR, The Wilderness Society, et al. 1999. Petition to enhance and expand regulations governing the administration of recreational off-road vehicle use on National Forests. Published by Wildlands CPR, Missoula, MT 188 p. http://www.wildlandscpr.org/orvs/ORVpetition.doc
Wisdom, M. J., H. K. Preisler, N. J. Cimon, B. K. Johnson. 2004. Effects of Off-Road Recreation on Mule Deer and Elk. Transactions of the North American Wildlife and Natural Resource Conference 69: in press. bluewaternetwork.org/reports/rep_atv_Forestservice.pdf
Wisdom, M.J., R.S. Holthausen, B.C. Wales, C.D. Hargis, V.A. Saab, D.C. Lee, W.J. Hann, T.D. Rich, M.M. Rowland, W.J. Murphy, and M.R. Eames. 2000. Source Habitats For Terrestrial Vertebrates Of Focus In The Interior Columbia Basin: Broad-Scale Trends And Management Implications. Volume 1 -- Overview. Gen. Tech. Rep. PNW-GTR-485. Portland, OR: U.S. Department of Agriculture, Forest Service, Pacific Northwest Research Station. http://www.fs.fed.us/pnw/pubs/gtr485/gtr485v1.pdf
Wood River Resource Conservation and Development Area. 1993. Using beaver to improve riparian areas. Gooding, Idaho.
Attachment B: CD containing FP Amendments related to the existing Travel Plan, the ROD that implements the Forest Plan, and other pertinent background information
[1] Farquhar, Brodie. August 25, 2005. "Some sage grouse survive West Nile," Casper [WY] Star-Tribune.
[2] Note Berry (1980) provided to the Fishlake NF in 2004 by the Three Forests Coalition: "One study reported that ORV noise induced birds to abandon concealing vegetation and fly from 0.8 to 3.2 km away from the sound of approaching vehicles. Wild turkeys also fled at the approach of vehicles." (p. 456)
[3] Trends are taken from the 2004 version of Rodriguez' referenced 2005 life history document because the 2005 version is not published on the OHV DEIS website.
[4] http://www.mbr-pwrc.usgs.gov/bbs/specl04.html (September 15, 2005)
[5] http://www.mbr-pwrc.usgs.gov/cgi-bin/atlasa99.pl?05400&1&04 (September 15, 2005)
[6] See, for instance, a document not acknowledged by the Forest although the document was provided to the Fishlake NF by the Three Forests Coalition in 2004: Gelbard, Jonathan, and Susan Harrison. 2003. Roadless habitats as refuges for native grasslands: Interactions with soil, aspect, and grazing. Ecological Applications 13(2):404-415.
[7] http://www.mbr-pwrc.usgs.gov/cgi-bin/atlasa99.pl?05620&1&04 (September 15, 2005)
[8] References
Berry, KH. 1980. A review of the effects of off-road vehicles on birds and other vertebrates. Proceedings of the Management of Western Forests and Grasslands for Nongame Birds, compilers RM DeGraaf, and NG Tilgham, 451-67 Ogden, Utah: U.S. Department of Agriculture, Forest Service, Intermountain Forest and Range Experiment Station.
Cannings, RJ, and Astrid van Woudenberg.2004. Flammulated owl. Otus flammeolus.
wlapwww.gov.bc.ca/wld/identified/ documents/Birds/b_flammulatedowl.pdf
Findlay, Scott and Josée Bourdages. 2000. Response time of wetland biodiversity to road construction on adjacent lands. Conservation Biology 14(1):86-94.
Forman, R. T. T., and L. Alexander. 1998. Roads and their major ecological effects. Annual Review of Ecology and Systematics 29:207-231.
Gelbard, Jonathan, and Susan Harrison. 2003. Roadless habitats as refuges for native grasslands: Interactions with soil, aspect, and grazing. Ecological Applications 13(2):404-415.
Gilbert, Barrie K. 2003. Motorized access on Montana's Rocky Mountain Front: a synthesis of scientific literature and recommendations for use in revision of the travel plan for the Rocky Mountain Division. The Coalition for the Protection of the Rocky Mountain Front. 35 pp. http://www.wildmontana.org/gilbertreport.pdf
Gucinski, H., M.J. Furniss, R.R. Ziemer, and M.H. Brookes. 2001. Forest roads: a synthesis of scientific information. General Technical Report PNW-GTR-509. Portland, OR: U.S. Department of Agriculture, Forest Service, Pacific Northwest Research Station. 103p. Available online at: http://www.fs.fed.us/eng/road_mgt/science.pdf
Hartley, Dawn A., Janice L Thomson, Pete Morton, and Erik Schlenker-Goodrich. 2003. Ecological Effects of a Transportation Network on Wildlife: A Spatial Analysis of the Upper Missouri River Breaks National Monument. The Wilderness Society. http://www.tws.org/Library/Documents/MissouriBreaksTransportationEffects.cfm
Ingelfinger, F. and S. Anderson. 2004. Passerine response to roads associated with natural gas extraction Fragmentation in the Rocky Mountains. Conservation Biology. Vol. 10, No. 4, pages 1098-1106.in a sagebrush steppe habitat. Western North American Naturalist 64:385-395.
Reed, Rebecca A., Julia Johnson-Barnard, and William L. Baker. 1996. Contribution of Roads to Forest
Sauer, J. R., J. E. Hines, and J. Fallon. 2005. The North American Breeding Bird Survey, Results and Analysis 1966 - 2004. Version 2005.2. USGS Patuxent Wildlife Research Center, Laurel, MD
Trombulak, S.C., and C.A. Frissell. 2000. Review of ecological effects of roads on terrestrial and aquatic communities. Conservation Biology 14: 18-30
van Woudenberg, Astrid. 1999. Status of the Flammulated owl in British Columbia. B.C. Min. Environ., Lands and Parks, Wildl. Br., Victoria, B.C. Wildl. Work. Rep. WR-95.
Wisdom, M.J., B.C. Wales, M.M. Rowland, M.G. Raphael, R.S. Holthausen, T.D. Rich, and V.A. Saab. 2002. Performance of Greater Sage-Grouse Models for Conservation Assessment in the Interior Columbia Basin, U.S.A. Conservation Biology 16: 1232:1242
Zapisocki, Ryan, Barbara Beck, James Beck, Melissa Todd, Richard Bonar, and Richard Quinlan. 2000. Three-toed woodpecker year-round habitat. Habitat suitability index model Version 6. www.fmf.ca/HS/HS_report31.pdf
[9] See, e.g.,Trout Unlimited. 2004. Where the Wildlands Are: The Importance of Roadless Areas to Idaho's Fish, Wildlife, Hunting, and Angling.: In Idaho, 68 percent of current bull trout habitat is found in roadless areas; 88 percent of the land in hunt units that yielded more than 90 percent branch bulls is roadless; 94 percent of the land in hunt units yielding both 70 percent bucks and 40 percent 4+ point bucks is roadless; 58 percent of current westslope habitat is found in roadless areas. However, just 16 percent of current westslope populations are considered "strong". 83 percent of these "strong" populations are found in roadless areas.); (74 percent of current chinook habitat is found in roadless areas.; (94 percent of 303d sediment-impaired streams are located outside roadless areas.) Available at www.tu.org
[10] For example, see "Patterns of apparent extirpation among isolated populations of pikas (Ochotona princeps) in the Great Basin". Author:Beever, Erik A.; Brussard, Peter F.; Berger, JoelAuthor Affiliation: Beever, Erik A.: Forest and Rangeland Ecosystem Science Center, Biological Resources Division, United States Geological Survey, 3200 SW Jefferson Way, Corvallis, OR, 97331, USASource: Journal of Mammalogy,84(1): 37-54; February 2003 ISSN:0022-2372Abstract: We conducted exploratory analyses to examine the relative roles played by natural and anthropogenic influences on persistence of a montane mammal. We revisited historical locations of pikas (Ochotona princeps) within the hydrographic Great Basin during summers of 1994-1999. Seven of 25 populations (28%) reported earlier in the 20th century appeared to have experienced recent extirpations. We assessed causative agents of faunal change using several alternative, but not mutually exclusive, hypotheses. Higher probability of persistence was correlated with greater area of talus habitat at local and mountain-range scales, higher elevation, more easterly longitude, more southern latitude, lack of livestock grazing, greater distance to primary roads, and wilderness management. However, only area of habitat in the mountain range, maximum elevation of talus habitat, and distance to primary roads appeared in the most parsimonious model of persistence when we used Akaike's information criterion model-selection technique. These results suggest that relaxation of montane faunas may occur more rapidly than previously expected; that biogeographic models of species occurrence can be refined by including more proximate factors (e.g., grazing status, proximity to roads); and that habitat-based approaches to modeling vertebrate trends should be accompanied by field data because population loss can occur with no apparent change in habitat.
[11] See, e.g.,Hammer, K. 2001. Gate-Crashing: Road Closure Gates Cannot Effectively Eliminate Trespass. Swan View Coalition, Kalispell, MT. 12p. http://www.swanview.org/reports/Gate-Crashing-Report.pdf. This document (and an accompanying annotation) was supplied to the Fishlake NF Planning Team in 2004 by the Three Forests Coalition. The report notes that monitoring and experience have shown gates are largely ineffective and must be replaced by permanent barriers and road obliteration. More monitoring is not going to effectively "eliminate trespass by the public;" it is simply going to present a better record of the trespass that occurs.
[12]Cited Sources
Frueh, LisaMarie, Monaghan and Associates. November 2001. Status and Summary Report: OHV Responsible Riding Campaign.
Griffin, Rebekah J. December 2004. Case Closed: Public Motorized Trespass and Administrative Activity on Closed Roads in the Upper Swan, Lower Swan, and Noisy Face Geographic Units. On behalf of Swan View Coalition et al.
Off Highway Vehicle Uses and Owner Preferences in Utah (Revised). January 2002. Institute for Outdoor Recreation and Tourism, Department of Forest Resources, Utah State University on behalf of Utah Department of Natural Resources, Division of Parks and Recreation.
U.S. Forest Service, National Visitor Use Monitoring Program. August 2003. Fishlake National Forest. Table 13, Fishlake NF activity participation and primary activity. Found at www.fs.fed.us/recreation/programs/nvum.
Wildlands CPR. 2004. Investing in Communities, Investing in the Land: A Summary Report. Adapted from
Reinvestment in Jobs, Communities and Forests: The Benefits and Costs of a National Program for Road Removal on U.S. Forest Service Lands, a Preliminary Analysis. A study by The Center for Environmental Economic Development (CEED). Summary can be found at http://www.wildlandscpr.org/resourcelibrary/reports/Economic%20Report/EcoSummaryIndex.htm.
[13] Attached to these comments in CD attachment B, see folder named 'Forest Plan travel plan and road trail amendments.
[JK1]I believe that Sean will address this in more detail as needed.