APPEAL TO THE APPEALS DECIDING OFFICER
ROCKY MOUNTAIN REGION (REGION 2)
UNITED STATES FOREST SERVICE
In the Matter of the Decision Notices and
Findings of No Significant Impact
For the Hayman Fire Roads Management
Project Environmental Assessment
Issued by the United States Forest Service
On September 9, 2004. 1
APPEAL OF THE COLORADO OFF-HIGHWAY VEHICLE COALITION
Respectfully submitted this 1st day of November, 2004.
Via electronic mail to appeals-rocky-mountain-regional-office@fs.fed.us
______________________________
D. Andrew Wight, Esq.
P.O. Box 101960
Denver, CO 80250-1960
303-291-0232
303-291-0233 (fax)
Attorney for the Colorado Off-
Highway Vehicle Coalition
1 It should be noted that none of the Decision Notices appealed herein was actually mailed to COHVCO at the address provided in the Comments of COHVCO, which were submitted to the Forest Service on August 16, 2004. Given that COHVCO is the largest state-wide pro-motorized organization, this failure is particularly egregious.
The Colorado Off-Highway Vehicle Coalition (COHVCO) by and through its attorney, hereby submits the following consolidated appeal pursuant to 36 C.F.R. § 215.
INTRODUCTION
Congress has recognized that motorized recreation is a legitimate, welcome use of our public lands and has therefore instructed federal agencies that they must provide for OHV access to federal lands “where appropriate.” See, Sierra Club v. Clark, 774 F.2d 1406, 1410 (9th Cir. 1985). In carrying out the congressional mandate to provide motorized recreational opportunities, the Chief of the Forest Service has recognized, “[t]he Forest Service is accountable for the services it provides to the Nation for recreation. We are in many ways America’s backyard…We are emphasizing performance accountability in how we meet the recreation demands of America.” Statement of DALE N. BOSWORTH, Chief, USDA Forest Service, Before the United States Senate COMMITTEE ON APPREPRIATIONS Subcommittee on Interior and Related Agencies, May 1, 2001. Further, the Multiple-Use Sustained-Yield Act (MUSYA), together with the National Forest Management Act (NFMA), require the Forest Service to provide for "intensive uses, provide recreational opportunities of all types, and expand these opportunities as the public demand for them grows. 16 U.S.C. § 528, et seq., 16 U.S.C. § 1600, et seq.
Congress intends that the National Forests be used, first and foremost, for outdoor recreation. See Multiple Use-Sustained Yield Act of 1960 (MUSYA), 16 U.S.C. § 528, et seq. (“It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.”) Further, the Forest Service must provide a system of roads and trails sufficient to meet the “increasing demands for timber, recreation, and other uses of such land.” 16 U.S.C. § 532.
Finally, Congress requires that the Forest Service “provide for intensive use, protection, development, and management of these lands under principles of multiple use and sustained yield of products and services.” Id. (italics added).
In the Hayman decisions the Forest Service has violated law, regulation and policy by improperly closing several key OHV routes of great recreational importance to the motorized recreation community and by failing to follow proper procedures under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). 42 U.S.C. § 1421, et seq., 5 U.S.C. § 701, et seq.. Appellants thus request that the Regional Forester vacate those portions of the decisions until such time as they can be re-evaluated under appropriate and relevant standards. See Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988).
APPEAL
1. Appellant's Name, Mailing Address, and Telephone Number:
Colorado Off-Highway Vehicle Coalition (COHVCO)
P.O. Box 101960
Denver, CO 80250-1960
303-291-0232
303-291-0233 (fax)
The Colorado Off-Highway Vehicle Coalition (COHVCO) is a non-profit corporation formed in 1987 by a group of leaders from the four-wheel drive, motorcycle, snowmobile, and all-terrain vehicle (ATV) communities to work toward the common goals of off highway vehicle (OHV) recreationists in Colorado. COHVCO works closely with federal, state and local governments to promote regulation and legislation favorable to OHV recreation. COHVCO developed, promoted, and assisted in the creation of the Colorado OHV Act registration program, which collects fees and provides grants for local OHV groups and individuals to maintain trails, erect positive signage, and educate motorized users about responsible OHV use on public lands in the state. Since its inception, this program has allocated over $5 million to such local projects. COHVCO has also established strong working relationships with federal and state land managers to maintain and enhance OHV recreational opportunities in Colorado and other Western states.
The mission of COHVCO is to represent, assist, educate, and empower OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations.
COHVCO has many members who participate in motorized recreation in the Hayman burn area and have specific plans to do so in the future. Because COHVCO submitted substantive comments during the 30-day comment period, it has standing to file this appeal. 36 CFR 215.13(a). See Attachment A, COHVCO comments on Environmental Assessment, Hayman Fire Roads Management Project, Pikes Peak, South Park, and South Platte Ranger Districts, Pike and San Isabel National Forests, Douglas, Jefferson, Park, and Teller Counties, Colorado, July 2004 ("EA"), and COHVCO comments on the Roads Analysis Report, Hayman Fire Burn Area, United States Department of Agriculture, Forest Service, October 2003 (“Roads Report”).
2. Decision Documents and Responsible Officials Involved:
a. Decision Notice and Finding of No Significant Impact (FONSI) for Hayman Fire Roads Management Project, Douglas and Teller Counties, Colorado, USDA Forest Service, Pikes Peak Ranger District, Pike National Forest. Signed and issued on September 9, 2004 by Responsible Official Bill Nelson, Pikes Peak District Ranger.
b. Decision Notice and Finding of No Significant Impact (FONSI) for Hayman Fire Roads Management Project, Park and Teller Counties, Colorado, USDA Forest Service, South Park Ranger District, Pike National Forest. Signed and issued on September 9, 2004 by Responsible Official Sara Mayben, South Park District Ranger.
c. Decision Notice and Finding of No Significant Impact (FONSI) for Hayman Fire Roads Management Project, Park and Teller Counties, Colorado, USDA Forest Service, South Park Ranger District (Wildcat Canyon), Pike National Forest. Signed and issued on September 9, 2004 by Responsible Official Sara Mayben, South Park District Ranger.
d. Decision Notice and Finding of No Significant Impact (FONSI) for Hayman Fire Roads Management Project, Douglas, Jefferson, Park and Teller Counties, Colorado, USDA Forest Service, South Platte Ranger District, Pike National Forest. Signed and issued on September 9, 2004 by Responsible Official Randy Hickenbottom, South Platte District Ranger.
e. Decision Notice and Finding of No Significant Impact (FONSI) for Hayman Fire Roads Management Project, Douglas, Jefferson, Park and Teller Counties, Colorado, USDA Forest Service, South Platte Ranger District (Wildcat Canyon), Pike National Forest. Signed and issued on September 9, 2004 by Responsible Official Randy Hickenbottom, South Platte District Ranger.
3. Changes in the Decision Sought by Appellant:
Appellants seek the following changes in the decisions of September 9, 2004:
a. The Forest Service should implement Alternative C as originally presented, rather than the illegal, modified selected Alternative C.
b. Specifically, the Forest Service should open to motorized use all 23.2 miles of four-wheel drive roads in the very popular Wildcat Canyon area. This includes Longwater Gulch, Hackett Gulch, Crossover, Widow Maker, Metberry Road and Corral Creek. That the Forest Service is willing to keep these routes open pursuant to an easement or other written agreement containing "an agreed maintenance standard for each road" indicates that closure of these routes is not environmentally necessary and that the Forest Service should, instead of issuing a blanket closure, actively seek private party partners to "adopt" and maintain these important routes. Longwater, Hackett, and Corral Creek roads were adopt-a-roads by CoA4WDCI 4wd clubs members of the Coalition of Four-Wheel Drive Clubs, itself a member of COHVCO. The OHV community has thus spent over $100,000 in grant money and many thousands of hours of volunteer time in the past several years on these roads. The two years these roads have been closed have seen increased recreational pressure and resource damage on other OHV areas surrounding the Hayman Burn area. These decisions will continue to allow additional resource damage to happen in these areas.
ARGUMENT
I. The Decision Violates The National Environmental Policy Act And The Administrative Procedures Act Because The Decisions Should Have Been Analyzed Together in a Single Environmental Impact Statement
A. NEPA and the APA in general.
The Administrative Procedures Act (APA) provides the administrative framework and the standard of review for decisions of federal agencies. See, 5 U.S.C. § 701, et seq. The APA provides that “agency action, findings, and conclusions found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” will be held unlawful and set aside. 5 U.S.C. § 706(2)(A).
The National Environmental Policy Act (NEPA) applies to all federal agencies to ensure that the potential environmental effects of federal actions are fully analyzed in the proposal stage. 42 U.S.C. § 1421, et seq. “NEPA has twin aims. First, it ‘places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.’ Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. NRDC,
462 U.S. 87, 97 (1983) (citations omitted). For “major federal actions significantly affecting the quality of the human environment,” such as the decision at issue here, NEPA requires the preparation of an Environmental Impact Statement (EIS). 42 U.S.C. § 4332 (C) (i), 40 C.F.R. § 1508.18, 40 C.F.R. § 1508.27.
B. An Environmental Impact Statement must be prepared for major federal actions which may significantly effect the human environment.
NEPA requires that an EIS be prepared for major federal actions significantly affecting the quality of the human environment:
The Congress authorizes and directs that, to the fullest extent possible…all agencies of the Federal Government shall…include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on…the environmental impact of the proposed action.
42 U.S.C. § 4332 (c)(i). As to the issue of whether a particular action is “major” and has the potential to “significantly affect the human environment,” the courts apply a unitary standard. See, e.g., City and County of Denver v. Bergland, 517 F.Supp. 155 (D. Colo. 1981), aff’d and rev’d in part on other grounds, 695 F.2d 465 (10th Cir. 1982). That is, when federal action is found to either “major” or “significant,” the other will also be true and an EIS will be required.
The CEQ regulations under NEPA provide additional guidance into the of “significance” determination. 40 C.F.R. § 1508.27. As the regulations reveal, this determination requires considerations of both the context and the intensity of the proposed action. 40 C.F.R. § 1508.27 (a), 40 C.F.R. § 1508.27 (b). As for “intensity,” several of the factors outlined in the regulations apply directly to the Hayman Roads Project. For instance, “[i]mpacts that may be both beneficial and adverse” must be considered. 40 C.F.R. § 1508.27 (b)(1). Furthermore, the Forest Service must consider the “[u]nique characteristics of the geographic area…” 40 C.F.R. § 1508.27 (b)(3). The Forest Service must also consider “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27 (b)(4). And finally, the Forest Service must consider, “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27 (b)(7).
CEQ regulations also require that the agency evaluate indirect environmental effects, or secondary effects, such as changes in the pattern of land use that are induced by the proposed action and related effects on air and water. 40 C.F.R. § 1502.16 (b), 40 C.F.R. § 1508.8 (b).
Application of these regulations to the Hayman Roads Project demonstrates that the Project is a “major federal action significantly affecting the quality of the human environment.”
i. The Forest Service failed to consider possible adverse effects of the Hayman Decisions.
The Forest Service failed to consider whether and the extent to which the complete closure of the popular Wildcat Canyon area, coupled with the other designation changes and motorized closures in the Hayman Project, would adversely effect the areas that remain open to motorized use. The Forest Service admits that motorized use of this and other areas is increasing. Under MUSYA and NFMA, the Forest Service is thus required to increase the opportunities for the desired recreation experience to ensure that use remains "intensive." Instead, the agency has chosen to reduce opportunity, and failed to consider the inevitable result- that increased use combined with a smaller motorized area may cause considerable adverse effects to the areas remaining open. Thus, the Forest Service has guaranteed that remaining open areas will suffer greater impact from increased use. Nonetheless, the Forest Service failed to consider the significant indirect environmental effects that this increased pressure will have in the Hayman area and failed to prepare an EIS to comprehensively analyze these effects. Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1322 (8th Cir. 1974) (Held: NEPA is concerned with indirect effects as well as direct effects.); Natural Resources Defense Council, Inc., v. U.S. Environmental Protection Agency, 822 F.2d 104, 126 (D.C. Cir. 1987) (Held: “The agency is
called upon to consider all ‘direct, indirect, and cumulative effects.’”) This violates the agency's duty under NFMA and NEPA to protect the lands from avoidable degradation.
ii. The Forest Service failed to consider the unique characteristics of the Hayman burn area.
The Hayman burn was the largest forest fire in the history of the State of Colorado. It occurred in a very popular motorized recreation area near the major metropolitan area of Denver. Never has the Forest Service encountered such a unique and challenging set of circumstances and, thus, should have prepared an EIS pursuant to 40 C.F.R. § 1508.27.
C. Related actions must be considered together in a single environmental impact statement.
NEPA requires that an extensive environmental impact statement (EIS) be prepared for major federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4332 (c)(i) (“[A]ll agencies of the Federal Government shall…include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on…the environmental impact of the proposed action.”) The Forest Service must consider, “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27 (b)(7). Related actions be considered together in a single EIS. 40 C.F.R. § 1502.4 (a) (“Proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.”) The regulations further provide,
When preparing statements on broad actions…agencies may find it useful to evaluate the proposal(s) in one of the following ways:
(1) Geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area.
(2) Generically, including actions which have relevant similarities, such as common timing, impacts, alternatives, methods of implementation, media, or subject matter…
40 C.F.R. § 1502.4 (c). “Agencies shall use the criteria for scope (§ 1508.25) to determine which proposal(s) shall be the subject of a particular statement.” 40 C.F.R. § 1502.4 (a).
Actions are related and fall within the scope of a single EIS when they are “connected” such that they “[c]annot or will not proceed unless other actions are taken previously or simultaneously,” or, “[a]re interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R. § 1508.25 (a)(1)(ii), (iii). Actions with cumulatively significant impacts must also be considered in a single EIS. 40 C.F.R. § 1508.25 (a)(2). Finally, “[s]imilar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography,” should be analyzed in a single EIS. 40 C.F.R. 1508.25 (a)(3).
The Supreme Court has held that related agency activities must be considered in a single impact statement. Kleppe v. Sierra Club, 427 U.S. 390, 409-410 (1976). The Tenth Circuit has also confirmed this clear NEPA requirement. See, Citizens’ Committee to Save Our Canyons v. U.S. Forest Service, 297 F.3d 1012, 1028-1029 (10th Cir. 2002).
Here, instead of producing a single decision document for the Hayman Roads project, the Forest Service instead issued five separate documents, explaining, "[t]his was necessary to clarify management responsibility for the specific geographic areas of the Hayman Fire, addressed in the Hayman Fire Roads Management Project EA that burned across three ranger districts." News Release, DECISION NOTICE RELEASED FOR HAYMAN FIRE ROADS MANAGEMENT PROJECT ENVIRONMENTAL ASSESSMENT, Pike & San Isabel National Forests, Cimarron & Comanche National Grasslands Hayman Restoration Team, September 14, 2004. This rationale does not support the need for five separate decision documents flowing from a single EA because there are innumerable examples of Forest Service decisions, here and elsewhere, that span more than one ranger district. In these cases, as is the situation here, the Forest Supervisor has the over-arching authority to make and sign decisions which effect the forest in more than one ranger district. The Forest Supervisor has "management responsibility" for the Pike and San Isabel National Forests in their entirety, and thus should have been the responsible official here.
By releasing five separate decisions, the agency has caused confusion and unnecessary labor for those members of the public who may be injured by the decision(s) and wish to appeal it (them). The Forest Service failed to notify the public prior to issuing these decisions that there would be five, rather than a single decision. Perhaps the Forest Service seeks to insulate its decision from effective appeal by segmenting it, avoiding the EIS requirement, and issuing five smaller decisions rather than one large one. However, NEPA prohibits the agency from segmenting its projects to avoid the EIS requirement. See Kleppe, 427 U.S. 390, 409-10 (1976) (confirming that related agency activities must be considered in a single impact statement.) This rule has also been followed by the circuit courts: “To permit noncomprehensive consideration of a project divisible into smaller parts, each of which taken alone does not have a significant impact but which taken as a whole has cumulative significant impact would provide a clear loophole in NEPA.” City of Rochester v. U.S. Postal Service, 541 F.2d 967, 972 (2nd Cir. 1976) (internal citation omitted). The City of Rochester court goes on to state that, “[t]he guidelines of the Council on Environmental Quality make it clear that the statutory term "major Federal actions" must be assessed with a view to the overall, cumulative impact of the action proposed,
related Federal action and projects in the area, and further actions contemplated.” Id.
To support its decision to segment the Hayman Roads Project, the Forest Service must, at the very least, point to other similar projects where a single NEPA document resulted in two or more decision documents without prior notice to the public that such would be the result of the analysis. The Forest Service must then show that the five Hayman Roads decisions do not have a cumulatively significant impact, and that they are not interdependent parts of a larger action. 40 C.F.R. § 1508.25 (a)(1)(ii), (iii). This may very well be an impossible task, given that the five decision documents arise from a single NEPA document. All of the decisions also share a common timing and geography. 40 C.F.R. 1508.25 (a)(3). Given that NEPA's central goal is public notice and accountability, the approach taken here does not pass muster and must be reversed.
II. The Decision Violates The National Forest Management Act Because It Does Not Properly Account For Economic Impacts.
NFMA requires the Forest Service to adequately consider economic impacts of agency decisions on local communities. NFMA requires that the Forest Service manage the national forests in such a way that local economies and their relationship to forest management are thoroughly analyzed. See 16 U.S.C. § 1600 (3) (“[t]o serve the national interest, the renewable resource program must be based on a comprehensive assessment of present and anticipated uses, demand for, and supply of renewable resources from the Nation’s public and private forests and rangelands, through analysis of environmental and economic impacts…”) (emphasis added), 36 C.F.R. § 219.2 (b) (“Planning contributes to social and economic sustainability by providing for a wide variety of uses, values, products, and services…”).
The Hayman Decisions include only a cursory and summary economics analysis. See, e.g., Decision Notice for the Pikes Peak Ranger District, at 6 ("Since recreational use is not expected to change significantly, the economic contribution of recreational use in the Hayman area to the surrounding economy would be comparable to the level of activity supported before the 2002 Hayman Fire.") (internal citation omitted). While each individual Decision Notice repeats this conclusion verbatim, none even attempts to substantiate it. Other than in the "Response to Comments" section, this solitary sentence is the sum total of the economic analysis in the Decision Notices. The EA summarily concludes that each Alternative would have, "[l]ow impact to local tourism economy. Low to moderate social effects to specialized 4X4 recreation." EA for Hayman Fire Roads Management Project, at 2-7. Finally, the "Roads Analysis Report" concludes, "[i]n terms of tourism there would be little change to spending patterns by visitors and little change in overall tourism activity in the local area. This is not to say that the use in the Hayman area is not important to the local economy, but that current users of the area would not likely change their use of the overall area under any of the alternatives." RAP at 4-61. Thus, the Forest Service's conclusion that the Hayman Project will have little to no economic effect on the local communities is based entirely on its conclusion that user patterns will not change. This conclusion is unsupportable2 and purports to justify an economics analysis that flies in the face of available data.
2 This conclusion cannot be made with a straight face because the decisions close the most popular 4X4 portion in the entire Hayman area: Wildcat Canyon. How can it be said, then, that usage patterns will not change?
More importantly, the Forest Service has failed to consider the enormous economic impact of OHV recreation in the State of Colorado on the whole. Professional economic analysis indicates that OHV recreation adds more than $300,000,000 to Colorado’s economy on a yearly basis. See Exhibit B, Economic Contribution of Off-Highway Vehicle Use in Colorado, Executive Summary, Hazen and Sawyer, Environmental Engineers and Scientists, at ES-6. The Forest Service’s summary conclusion that the effect of the closure of Wildcat Canyon and other popular areas to motorized vehicles “would [cause] little change to spending patterns by visitors and little
change in overall tourism activity in the local area” is thus made in a vacuum. In other words, were this unsubstantiated and unsupportable conclusion to be applied on a case-by-case basis throughout the State of Colorado, the economy of the state would suffer tremendously. The multi-million dollar contribution of the use of off-highway vehicles in the state is created incrementally, one dirt bike, ATV, jeep, and snowmobile at a time. The Forest Service has failed to analyze the immense aggregate economic effect of the piecemeal closure of all of Colorado’s most scenic off-highway vehicle destinations, which will cause untold damage on the economy of the state. Therefore, a comprehensive analysis of the effects of each site-specific decision on
local economies is essential. The Forest Service has violated NFMA by failing to include this analysis in the Hayman Roads Project.
CONCLUSION
In conclusion, the Hayman Roads Decision Notices of September 9, 2004, must all be set aside and the issue remanded to the Forest Supervisor for the Pike and San Isabel National Forests with instructions to complete a new analysis in compliance with all applicable federal statutes and regulations, as set forth herein.
Respectfully submitted this 1st day of November, 2002.
____________________________________
D. Andrew Wight, Esq.
P.O. Box 101960
Denver, Colorado 80250-1960
303-291-0232
303-291-0233 (fax)
Attorney for the Colorado Off-Highway
Vehicle Coalition.
Attachment A
COLORADO OFF-HIGHWAY VEHICLE COALITION
P.O. Box 101960
Denver, Colorado 80250-1960
303-291-0232 (p)
303-291-0233 (f)
Hayman Roads EA
Attn: Sherri Zufall
19316 Goddard Ranch Court
Morrison, CO 80465
r2_psicc_hayman_recovery@fs.fed.us
August 16, 2004
Dear Sirs:
On behalf of the Colorado Off-Highway Vehicle Coalition (COHVCO), I submit to you the following comments on Environmental Assessment, Hayman Fire Roads Management Project, Pikes Peak, South Park, and South Platte Ranger Districts, Pike and San Isabel National Forests, Douglas, Jefferson, Park, and Teller Counties, Colorado, July 2004.
I. A. COHVCO
The Colorado Off-Highway Vehicle Coalition (COHVCO) is a non-profit corporation formed in 1987 by a group of leaders from the four-wheel drive, motorcycle, snowmobile, and all-terrain vehicle (ATV) communities to work toward the common goals of off highway vehicle (OHV) recreationists in Colorado. COHVCO works closely with federal, state and local governments to promote regulation and legislation favorable to OHV recreation. COHVCO developed, promoted, and assisted in the creation of the Colorado OHV Act registration program, which collects fees and provides grants for local OHV groups and individuals to maintain trails, erect positive signage, and educate motorized users about responsible OHV use on public lands in the state. Since its inception, this program has allocated over $5 million to such local projects. COHVCO has also established strong working relationships with federal and state land managers to maintain and enhance OHV recreational opportunities in Colorado and other Western states.
The mission of COHVCO is to represent, assist, educate, and empower OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations.
B. COHVCO’s “Preferred Alternative.”
For all of the reasons set forth herein, COHVCO suggests that the Forest Service adopt Alternative B for implementation.
C. General Comments Regarding Compliance with Federal Statute.
The National Environmental Policy Act (NEPA) applies to all federal agencies to ensure that the potential environmental effects of federal actions are fully analyzed in the proposal stage. 42 U.S.C. § 1421, et seq. “NEPA has twin aims. First, it ‘places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.’ Second, it ensures that the agency
will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (citations omitted).
For “major federal actions significantly affecting the quality of the human environment,” NEPA requires that the agency prepare “a detailed statement by the responsible official on the environmental impact of the proposed action.” 42 U.S.C. § 4332 (C)(1). Whether or not an action is a “major federal action,” the implementing regulations (40 C.F.R. § 1500 et seq.) provide for the preparation of “environmental assessments” (“EAs”), which are concise preliminary evaluations that “[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement [EIS] or a finding of no significant impact [(‘FONSI’) ].” 40 C.F.R. § 1508.9(a)(1).
Due to the scope of the Hayman Roads Project, it will require the preparation of an EIS before any onground steps may be taken.
Further, the Forest Service must explain the relevance of the Roads Analysis Report (RAP or “Roads Report”) to the NEPA process. Specifically, it should explain the difference between the RAP and the EA, in addition to why the RAP was ostensibly not covered by NEPA and to what use the public’s comments to that document were put. The Comments of COHVCO to the Roads Report are attached hereto and incorporated by reference as a part of COHVCO’s comments to the EA.
Finally, NEPA requires the agencies to use the best available science and a sound scientific method. To this end, NEPA requires that the agency take a “hard look” at the potential environmental consequences of its proposal. The EA for the Hayman Fire Roads Management Project (the “EA”) fails to meet this standard because it is replete with guesswork and summary conclusion, and contains a dearth of the quantified data and analysis necessary to justify any decision made based upon it.
The Forest Service must also adhere to the requirements of other federal statutes such as the Multiple-Use Sustained Yield Act (MUSYA), among others. MUSYA requires that the public
lands remain open to a wide variety of “intensive” uses, provide recreational opportunities of all types, and expand these opportunities as the public demand for them grows. Any document or project not in conformity with this edict is subject to reversal by the federal courts.
Once again, any decision based upon this EA threatens to violate MUSYA because it will inevitably result in reduced OHV opportunity or less “intensive” use of National Forest lands. Of the Alternatives set forth, Alternative B comes closest to passing muster under MUSYA.
COHVCO does not challenge the authority nor the necessity of /for the Forest Service to carefully manage the Hayman area, which has been devastated by wildfire. However, MUSYA and other relevant statutes make clear that the Forest Service must seek to maximize present opportunity for motorized recreation in this area and plan for future increases in opportunity to meet growing demand.
The Forest Service must comply with the National Forest Management Act (NFMA), which requires, inter alia, that the Forest Service draft, issue, and revise Land and Resource Management Plans (Forest Plans) for each National Forest. Further, NFMA requires that each project or proposed change in uses allowed in the forest be compatible with the relevant forest plan. Where large or significant changes to land use are proposed, as may very well be the case here, NFMA requires that the Forest Service amend the forest plan and follow all of the procedures required for the revision of such a plan, including the preparation of an Environmental Impact Statement (EIS).
Finally, no legal authority allows the Forest Service, or any other federal agency, to remove, preclude, or otherwise fail to provide motorized recreation opportunities, where they are otherwise appropriate, based upon anything other than quantifiable, site-specific scientific data and analysis leading to the conclusion that such motorized use is causing unavoidable and irreparable harm to forest resources. All subjective and anecdotal “data” must be properly weighted and must not be allowed to determine, in and of itself, as to any particular location, the outcome of the analysis. All uses have “impact” and “affect” the land in one way or another. The Forest Service must use a science-based approach to determine whether and where the amount of impact from a particular use rises to the level of irreparable harm to irreplaceable forest resources. In other words a quantitative analysis, rather than a merely qualitative analysis must be used.3
3 A brief analogy may be useful in explaining the importance of quantity to any scientific analysis. Supposing one lives in the least violent large city in the United States, yet has the misfortune of witnessing the only murder that occurs during an entire year. That individual may “express concern” that violent crime is a problem in the city, yet, quantitatively, one murder occurring in a large city over one year is an insignificant “problem.” Thus, the opinion of this citizen regarding the “effect” of violent crime on the city is completely
useless from a city-wide perspective. Similarly, the Forest Service must not rely on anecdotal “concerns” expressed by (possibly biased) forest users regarding the real, aggregate “effect” of a particular, legitimate, welcomed use of the forest such as motorized recreation. It’s the Forest Service’s job to discover a problem, if any, to measure the forest-wide magnitude of that problem, and then formulate and propose for public review a variety of solutions.
D. Specific Comments
COHVCO members and member clubs are available and standing by to assist the Forest Service with volunteer effort to do whatever is necessary to help re-open the roads in the Hayman Burn area, including reconstruction, rehabilitation, and maintenance work.
Furthermore, several local four-wheel
drive clubs are ready and willing to apply for State of Colorado OHV grants which may be used for reconstruction, rehabilitation, and maintenance work on routes that will remain open to motorized vehicles. These clubs have extensive experience with the grant process and have applied for and received grants in the past.
Of each of the Alternatives, Alternative B provides all recreational users with the lowest probability of social conflict between motorized users and others by dispersing the motorized use over the widest possible area. Alternatives C and D, on the other hand, greatly increase this potential and will, if implemented, undoubtedly lead to an increase in complaints of “userconflict.”
The cost per mile of maintenance on the level 2 (four-wheel drive) roads under Alternative B is considerably less than under any of the other action alternatives. The Forest Service must explain, if the cost per mile for maintenance of level 2 roads is $409, how the maintenance cost of a level 1 (closed) road be $463 per mile.
The following routes and other areas, in particular, are of great recreational value to the four-wheel drive recreationists who often visit the Hayman area, and thus should be re-opened or remain open to motorized vehicles:
1. Big Turkey campground.
2. FSR 205 (“Metberry”)
3. FSR 220.A (“Crossover”)
4. FSR 349 (“Drury”)
5. FSR 524 (“Upper Turkey Creek”)
6. FSR 525 (“Little Turkey Creek”)
7. FSR 526 (“Turkey Creek”)
The EA itself notes that the implementation of Alternative B “[m]ay affect but is not likely to adversely affect Preble’s Meadow Jumping Mouse and Pawnee Montane Skipper. No affect on Mexican Spotted
Owl. May affect but is not likely to adversely affect Bald Eagle.” EA at 2-7 (chart) (Italics added).
Therefore, concerns over “sensitive” or “endangered/threatened” wildlife should in no way effect the Forest Service’s choice of Alternative. To the extent that concerns over “habitat fragmentation” based upon roads and road density are at all relevant to the selection of Alternative, the Forest Service must set forth the scientific theory and hard data upon which such determinations are made.
The cost of implementation of Alternative B is half of the cost of the implementation of either Alternative C or Alternative D. It is estimated that the cost to implement Alternative B would be $669,010, while Alternative C would cost $1.7 million and Alternative D would cost $1.4 million.
The implementation of Alternative B would increase recreational opportunities for specialized or custom (non-stock) four-wheel drive vehicles.
The EA itself states that the implementation of Alternative B would allow for “[f]aster response time to fire incident due to road access.” EA at 2-7 (chart). COHVCO would suggest that the potential for faster response time to fire incidents would be a consideration of paramount importance to the Forest Service in an area such as Hayman, which has so recently been devastated by wildfire. This potential effect speaks strongly in favor of the selection of Alternative B over each of the other Alternatives, which present the “[p]otential [for] slow-down in response time to fire incident due to” either “gates”
(Alternative A) or “closures” (Alternatives C and D). Id.
The selection of either Alternative C or Alternative D would reduce the mileage of roads open to motorized vehicles and thus cause both over-crowding and over-use of the mileage that remains open, increasing complaints of “user-conflict” and also increasing the impact of motorized vehicles to the open roads. Alternative B would re-open the majority of classified roads that were open prior to the fire. The selection of Alternative B would help alleviate this over-crowding and over-use. Further, the implementation of Alternative B would not effect any known heritage sites.
Thank you for your consideration of these comments.
Sincerely,
D. Andrew Wight
Attorney for COHVCO
Attachment A
Comments of COHVCO, dated February 17, 2004, on
Roads Analysis Report, Hayman Fire Burn Area
United States Department of Agriculture
Forest Service
October 2003