| BLUE RIBBON COALITION, INC. 1540 N. Arthur Pocatello, ID 83204 November 9, 1999
(sent via email and U.S Mail) USDA Forest Service-CAET Re: Comments on Roadless Notice of Intent Dear USDA Forest Service: As the Western Regional Representative for the Blue Ribbon Coalition, a non-profit 501 (c) (3) advocacy group, I do hereby submit the following comments on the Roadless Areas Notice of Intent (NOI) to be entered into the public record. These comments shall not preclude any Coalition member or staff from submitting their own comments. DISCUSSION This NOI has failed to acknowledge the issues and concerns presented by the recreation community, Members of Congress, and local governments during the IR process. Just as the IR illegally combined unrelated procedures of the National Environmental Policy Act (NEPA), this NOI is unclear on whether proper NEPA procedures will be followed. The agency must clarify and state under which rules it will proceed (such as 36 CFR Part 217 or 36 CFR Part 215). Because the Forest Service has failed to follow proper NEPA procedures in the IR such as acknowledging my March 29, 1999 appeal of the IR or addressing legitimate concerns about the IR’s many statutory conflicts, I must include said appeal in the body of this document. By reading this appeal, it should be clear to any reader that the IR continues to have serious legal and statutory deficiencies. If the IR has deficiencies, than this NOI has deficiencies.
March 29, 1999
(Sent via facsimile and certified mail) Daniel Glickman, Secretary RE: Appeal of the Environmental Assessment for the Interim Rule Suspending Road Construction in Unroaded Areas of National Forest System Land Dear Secretary Glickman: The Blue Ribbon Coalition (BRC), a national non-profit advocacy group that champions responsible multiple-use recreation on public lands, does hereby appeal the Environmental Assessment (EA) for the Interim Rule (IR) Suspending Road Construction in Unroaded Areas of National Forest System Land. This appeal is made to you or the appropriate Deciding Officer. The BRC asserts our right to appeal this EA under 36 CFR 217.1 and 36 CFR 217. 3 because the IR does amend or revise past, current, and future National Forest Land and Resource Management Plans and Guides. New land use designated as "unroaded areas" is created by definition. A new definition of a road is created, (any vehicle way over 50 inches), and classifications of roads are created - classified and unclassified. Forest plans are amended and revised and this is obvious because specific recent and in progress forest plans are exempted. So why is there a need to exempt certain plans if the rule does not change, amend, or revise anything? The answer is because the new rule certainly does change plans, eliminate current authorized activities, and creates brand new land use designations. Because the EA and IR has blended various processes (i.e. rulemaking with project level activities and plan amendments), the BRC also asserts our right to appeal under 36 CFR 215. Under 36 CFR 215.7, project and activity decisions are appealable and the IR clearly makes project and activity decisions. Certain ongoing projects are halted and currently allowed activities are prohibited. Rather than "preserving the status quo," this decision markedly precludes management options and prevents field staff from specific resource-related activities. The IR is a nation-wide moratorium and a decision, in fact, to limit the individual project-level discretion of local forests. We contend the Finding of No Significant Impact (FONSI) is arbitrary and capricious. The BRC finds the IR to be a major Federal action and that the level and extent of controversy between experts, as defined in 40 CFR 1508, to be significant enough to elevate this EA to an Environmental Impact Statement (EIS). The BRC finds the EA and IR to be in conflict with the Transportation Equity Act for the 21st Century (TEA-21) , PL-105-178 SEC. 1112 (23 USC 206) and the National Trails System Act 16 USC 1246 and 16 USC 1261. The EA and IR unlawfully reclassifies legal "recreational trails over 50 inches" to so-called unclassified roads. 16 USC 1261 (g) (5) states, "The term 'recreational trail' means a thoroughfare or track across land or snow, used for recreational purposes such as bicycling, ...trail biking,...four-wheel drive or all-terrain off-road vehicles." 16 USC 1246 states, "Potential trail uses allowed on designated components of the national trail system may include, but are not limited to, the following: ...Vehicles which may be permitted on certain trails may included, ... four-wheel drive or all-terrain off-road vehicles." TEA-21 states in Sec. 206 (a) (2), "The term 'recreational trail' means a thoroughfare or track across land or snow, used for recreational purposes such as -- (G) motorized vehicular activities, including all-terrain vehicle riding, motorcycling, snowmobiling, use of off-road light trucks, or use of other off-road motorized vehicles." The BRC asserts the FONSI to be deficient in consideration of the analysis contained in the EA and that it does, in fact, constitute a major Federal action that would significantly affect the human environment. Our determination is based on the following FONSI reasons: Reason 1 -- The Forest Service (FS) claims the preferred alternative, 6, (PA6) would be limited in geographic context and limited to a suspension of permanent and temporary road construction and reconstruction. Discussion: The BRC contends that because of new road definitions (classified and unclassified) created by the IR, the FS has effectively and directly amended all past, current, and future National Forest Trail Plans which are part of Forest Land Management Plans. The IR has - through these new definitions - effectively "declassified" thousands of miles of Level 2 roads and Forest Development Trails and designated system trails that are over 50 inches wide. The IR's new road classifications will directly impact the amount of funds received by the FS from various state motorized grant programs to manage off-highway vehicle (OHV) recreation on forest lands. The BRC finds the EA deficient because the full disclosure requirements of NEPA were avoided by not disclosing the impacts of the decision until after the decision was made. The forests were not required to report which roads/routes/trails over 50 inches would be impacted by the decision in time for this vital information to be included in the decision process. In California alone, thousands of miles of 4 wheel drive and all-terrain vehicle (ATV) trails are over 50 inches and are a vital element of the Forest Development Trail System. The IR has now declassified these trails and has listed them as unclassified roads. These trails, now roads, provide important access for various forest user groups including sightseers, OHVers, hunters, fishermen, 4x4 enthusiasts, disabled, senior citizens, rock hounders, etc. The EA is deficient because it has not addressed the recreational impacts of the IR on forest user groups and state grant programs. Also, by declassifying thousands of miles of recreation trails over 50 inches, the IR is not in compliance with 16 USC 532 Sec. 1 of the National Forest Roads and Trails Act (NFRTA 1964) -- Act of October 13, 1964 (P.L. 88-657, 78 Stat. 1089). Reason 2 -- The FS claims that it has thoroughly evaluated both the beneficial and adverse effects and found them to be without significant impact. Discussion: The BRC finds this reason to be deficient because it basically only evaluated the IR's impact on timber harvesting. While the BRC supports responsible timber management of our public forests, the EA did not the effectively analyze the IR's impacts related to the reclassification of thousands of miles of Forest Development Trails over 50 inches. The FS did not adequately analyze the IR's potential negative impact on past, current, and future National Forest Trail Plans and their related activities including, but not limited to, camping, state grant programs, rural trail-based tourism, hunting, fishing, sightseeing, OHV, wilderness access, etc. The EA is deficient because it does not include recreation based data from industries, rural tourism associations, and user groups that will be negatively impacted by the reclassification of Forest Development Trails over 50 inches. An example of the economic impact of outdoor recreation activities in California, OHV recreationists -- many of which use designated trails over 50 inches -- generated 3 billion dollars in economic activity in 1993 ("A 1993-1994 Report, Off Highway Vehicle Recreation's Economic Impact in California"). An estimated 14% of California households (this percentage is probably larger in other Western states) engage in OHV activities each year. The BRC finds the EA deficient because significant environmental impacts could have been reasonably anticipated and were even expected, yet this was not addressed or considered as required. In particular, not fixing road failures that are obvious sources of greatly accelerated erosion and sedimentation is grossly irresponsible. It has often been said that, "Sometimes you have to destroy a city to fix it." It appears that the IR and EA are saying, "Sometimes you have to destroy the environment to fix it." The long term social goal of preservationist groups is to eliminate current motorized access by allowing roads to literally fall apart and slide massively into streams to "create" more non-motorized areas at the expense of grossly impacting the natural environment. This IR and EA fulfills the objective of preservationist groups by cutting off the fiscal resources needed to fix roads and trails over 50 inches to keep them passable and to minimize erosion. Fixing these known point sources of erosion and sedimentation problems should be an immediate top priority, yet a moratorium has been declared to stop this priority work. It is said that a picture is worth a thousand words and the pictures that the FS has chose to show on its website to "justify" the road repair moratorium is clear evidence of the road policy's deficiencies. The earlier the work is done to fix the road, the less the environmental impact and if nothing is done the failures just get worse. The EA is deficient because there is a legal obligation under NEPA to analyze the site specific impacts of the IR, yet this was not done by the EA. These site specific impacts are both individually and cumulatively significant. The IR crosses the line of being programmatic into site specific and project level by eliminating current practices that involve impacts to known areas and facilities. "The Department recognizes the effects of deferred road maintenance and reconstruction that have occurred in recent years. (Federal Register, February 12, 1999, Adoption of interim rule on road construction and reconstruction)." A further deferment causes increased effects and cumulatively adds to an already known significant problem that grossly impacts the environment. Reason 3 -- The FS claims that PA6 would not significantly affect the quality of the human environment that are likely to be highly controversial (40 CFR 1508.27 (b) (4). Discussion: The BRC finds the EA to be deficient in its conclusions regarding the IR's impact on the human environment. Controversy is one of the factors that must be considered in determining significance. The standard of review is controversy regarding effects to the human environment. Historically, the FS has concluded that controversy must be among experts. The EA did not address the many comments made by former FS road engineers (i.e. experts) about the IR's negative impacts on the human environment. The EA did not discuss disagreements (frank and open discussion has been encouraged by Chief Dombeck) between road engineers and other experts currently employed by the agency. The EA, while focusing on the IR's impact on the timber industry, did not address recreation impacts (see Discussion on Reason 2). Since "recreation" now constitutes approximately 90% of the use of forest roads, the EA is deficient because it did not analyze the impacts to recreationists and related businesses by "declassifying" tens of thousands of miles of Forest Development Trails. By not analyzing recreation impacts, the EA, and subsequently the IR, is in violation of the 1964 NRTA. The BRC finds the EA deficient because it does not address the access concerns of the disabled, minorities, and others. The EA is in violation of the Principles of Environmental Justice as it relates to equal treatment and non-biased access to public lands for all peoples. Reason 4 -- The FS claims that PA6 would not establish a precedent for future actions with significant effects and does not represent a decision in principle about a future consideration. Discussion: The EA disregards the fact that trail management practices has been determined on a case by case basis on the ranger district level. These management strategies and maintenance standards are outlined in the Forest Service Trail Management Handbook. Contrary to FS claims, the IR does establish a precedent for future actions with significant effects by stating that roads and recreation trails -- including Forest Development Trails -- over 50 inches are now "unclassified" roads [subject to aggressive decommissioning]. Level 1 and level 2 low standard maintenance roads have also now been "reclassified" by the IR as unclassified roads subject to "aggressive decommissioning." Most, if not all, dispersed recreation on forest lands depends on a quality level 1 and level 2 road system. The EA does not describe the mechanism by which it amends the Forest Service Trail Management Handbook and the short or long term implications of said actions. The IR also states that "unclassified roads, including roads created by repeated pubic use and often used by off-road vehicles, do not disqualify an area for consideration as unroaded in the final interim rule." The EA is deficient because it does not address the short and long term implication of this FS determination on dispersed recreation opportunities and campground related infrastructure. The BRC finds the IR's statement -- "...that the 5,000-acre criterion specific to RARE II areas is redundant and confusing and unnecessary. Therefore, paragraph (b) of the final interim rule omits this acreage limit." -- to be arbitrary and capricious. This redefinition of the acreage limit does constitute a major Federal action and does establish a precedent for future actions with significant effects and does represent a decision in principle about future [wilderness or wilderness-like] designations. The BRC's contention -- that many aspects of this EA and the IR are arbitrary and capricious -- is based on previous court cases and whether an agency has considered all relevant factors and whether there has been a clear error in judgment. According to case law, an agency's decision would be arbitrary and capricious "if the agency relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view of the product of agency expertise." Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463.U.S. 29, 43 1983. The IR does, in fact, lead to changes or amendments to past, current, and future forest plans by redefining the acreage limit for unroaded areas from 5,000 acres to 1,000 acres, by reclassifying Forest Development Trails over 50 inches to "unclassified roads" subject to "aggressive decommissioning," and by not providing a mechanism for changing vast sections of the Forest Trail Management Handbook related to Forest Development Trails and level 1 and level 2 roads. This EA and IR also "exceeds statutory authority" by inventing new land designations (i.e. unroaded areas, classified/unclassified roads, moving the "5,000 acre threshold" for roadless down to 1,000 acres, and stating that unless an area has a Forest Development Road - it can be considered as "unroaded"). The IR is in conflict with statutes that include RARE 2, the Wilderness Act, and NFMA because it does, in effect, create de facto Wilderness in clear violation of public law. Reason 5 -- The FS claims the EA does not address development or adoption of a revised road management policy for evaluating the impact of locating and constructing roads, revision of FS regulations for managing roads within the National Forest Transportation System, or changes in how the road system is funded, developed, used, and maintained. Discussion: The BRC asserts that the EA is deficient because it has not addressed the resource, recreation management, and funding impacts -- for the FS, state agencies, and the public -- by reclassifying thousands of miles of Forest Development Trails over 50 inches to "unclassified roads." Other deficiencies include the EA's lack of disclosure and analysis of potential impacts to various recreation and recreation-related industries and businesses by the reclassification of recreation trails over 50 inches to unclassified roads subject to "aggressive decommissioning. The EA did not address short and long term impacts to recreation and camping infrastructures now located in roaded areas that will most likely be declared "unroaded" using the new "1,000 acre" criteria. The BRC finds the EA and IR to be in conflict with 36 CFR Part 216.1 because it did not identify and allow the public comment on new issues (i.e. new road definitions - classified & unclassified and reclassifying Forest Development Trails over 50 inches to unclassified roads). 36 CFR 216.1 states, "This part establishes procedures to ensure that Federal, State, and local governments and the public have adequate notice and opportunity to comment upon the formulation of standards, criteria, and guidelines applicable to Forest Service programs." The FS is in clear violation of this regulation because it "created" several new road classifications and trail/road width definitions that were not identified in the Notice of Proposed Interim Rule; Request for Comment, January 22, 1998, hence denying the public the opportunity to comment and participate. Reason 6 -- The FS uses a "concurrence letter" from other federal agencies to codify various environmental concerns in the EA. Discussion: The BRC finds that the FS in the EA -- while using "letters" from various federal agencies to codify elements of the IR -- has disregarded Congressional intent for how the agency manages its road and trails systems by inventing the terms classified and unclassified. In the only known communiqué from Congress regarding what is and is not a road, a bipartisan letter was sent in 1977 to Guy Martin, Assistant Secretary, Land and Water Resources. This letter shows that the IR is in conflict with the Congressional intent. Among other things, this letter -- related to roadless areas of 5,000 acres or more -- stated, "... the traditionally recognized network of unimproved vehicle ways that traverse millions of acres of public lands is suddenly no longer recognized. These numerous and necessary access routes are called roads in official government maps and literature, they are used as roads by hikers, campers, hunters, fishermen, cattlemen, miners, loggers and prospectors. The roads are evident on maps and on the ground. They are traditional public vehicle ways, and at some point in time are traveled by most users of the public domain. This definition [roadless or unroaded] ignores the evident and the obvious; it defies a sense of reason, and it creates a host of problems." The letter goes on to state, "Millions of areas are suddenly restricted in use in these so-called 'roadless areas' until they can be 'studied to evaluate their w[W]ilderness potential,' within most of those areas is obvious no wilderness potential exists...we the undersigned offer the following direction in determining the true will and intent of the Interior Committee, and of Congress. The basic rule of common sense must be exercised...of primary concern is whether a way has traditionally been used as a road by the public -- whether is has accumulated enough beneficial use to have accustomed the public to its availability." CONCLUSION Because of the BRC's aforementioned discussions of this EA for the Interim Rule Suspending Road Construction in Unroaded Areas of the National Forest System Lands, it is our determination and assertion that adoption of PA6 does constitute a major Federal action significantly affecting the quality of the human environment. It is also in conflict with numerous and previously cited Public Laws and CFRs. RELIEF REQUESTED 1. Under 36 CFR 215 and/or 36 CFR 217, the BRC requests a stay on the EA and IR because of said deficiencies and inherent conflicts. 2. Under 36 CFR 215 we request an informal disposition meeting with you or your appointed representative. 3.. If the EA and IR is not withdrawn or stayed, the BRC requests that an EIS is done in accordance with relevant Public Law and CFRs so that the public and the environment will be better served. Sincerely, /s/ DON AMADOR Don Amador cc: US Senate Energy and Natural Resources Committee
ISSUE 1 ISSUE 2 The purpose of the ICA is to “strengthen state and local government and improve relations between those governments and the federal government through closer cooperation and coordination of policies and activities...” 1968 U. S. Code Cong. and Admin. News at 4221 Section 401 (b) of the ICA provides that federal agencies, to the extent possible, take into account all viewpoints and objectives - national, regional, state, and local - in the formulation, planning and administration of programs and development projects. Id. at 4222,4227 President Reagan reinforced Congress’ mandate in the ICA with E.O 12,372 entitled, “Intergovernmental Review of Federal Programs.” This EO states in Section 1, “Federal agencies shall provide opportunities for consultation by elected officials of those state and local governments that would...be directly affected by, proposed federal financial assistance or direct federal development.” ISSUE 3 ISSUE 4 ISSUE 5 The presentation of alternatives at this stage indicates that the agency has hard-wired the draft EIS to assure a specific outcome. We are concerned that NEPA, which is designed to result in a fair and balanced decision, is being short-circuited. The suggested action alternatives all support prohibition of activities to a varying degree. We are extremely concerned about the third suggestion which prohibits the implementation of all activities! This extreme suggestion presented by the agency at this early stage is highly irresponsible! ISSUE 6 * Provide for the acknowledgment of primitive roads that provide recreation challenge and opportunity for a variety of motorized uses. * Provide for the conversion of roads and construction of trails for a variety of recreational uses. * Provide for the construction of temporary roads for resource extraction, which as you realize, can be crucial for forest health. However, it should be made clear that NO alternatives will be considered until the end of this scoping period. ISSUE 7 ISSUE 8 CONCLUSION Due to the complexity and scope of the proposal, and the confusion created by this flawed NOI, we request an additional 120 days in the scoping period so that issues can be properly identified. Sincerely, /s/ DON AMADOR Don Amador |