Archive | June, 2015

Northwest Colorado Greater Sage Grouse Protest

June 26, 2015 in News

June 26, 2015

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

Re: Northwest Colorado Greater Sage Grouse LUPA and FEIS

Dear Sirs:

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

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

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

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

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

Prior to addressing the specific concerns of the habitat designations, a brief summary of each Organization is needed. COHVCO is a grassroots advocacy organization of approximately 2,500 members seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations.

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

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

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

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

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

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

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

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

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

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

“(PHMA) Use existing roads or realignments whenever possible. If it is necessary to build a new road, and the use of existing roads would cause adverse impacts to GRSG, construct new roads to the appropriate minimum Gold Book standard and add the surface disturbance to the total disturbance in the PHMA if it meets the criteria in Appendix H, Guidelines for Implementation. Construct no new roads if the biologically significant unit (Colorado populations) and proposed project analysis area (Colorado MZ) is over the 3 percent disturbance cap, unless there is an immediate health and safety need, or to support valid existing rights that cannot be avoided. Evaluate and implement additional, effective mitigation necessary to offset the resulting loss of GRSG habitat.” ¹¹(PHMA) Allow upgrades to existing routes after documenting that the upgrade will not adversely affect GRSG populations due to habitat loss or disruptive activities.¹² The Organizations submit that such arbitrary boundary lines for significant management changes simply lacks any factual or scientific basis. At no point does the FEIS even attempt to justify the management differences that are proposed solely based on land management agencies. The arbitrary nature of the standard is compounded by the fact that USFS lands are consistently of lower quality to the Grouse and simply may not be occupied at all, further undermining any basis for more strict management of this low quality habitat. 3b. Landscape level research on route closures has shown them ineffective in addressing species management issues. The US Forest Service’s Rocky Mountain Research Station has recently released extensive analysis of the effectiveness of travel management restrictions on addressing sensitive species related issues. These conclusions specifically found that travel management was not effective in addressing these issues and the species related concerns were often beyond the scope of travel management to address. The Research Station conclusions specifically stated as follows:

“Actions such as limiting grazing or closing OHV trails have historically been some of the primary tools used by land managers in southern Nevada to reduce the effects of anthropogenic stressors on species of conservation concern….. It is evident from this body of research that very little is known about the relative threats posed to, or the mitigation actions needed to protect, virtually any species, except perhaps the desert tortoise. Too often research jumps immediately to mitigation strategies without first determining what specific factors pose the greatest threats and are the most important to mitigate. In addition, the evaluation of potential threats typically focuses upon the usual anthropogenic suspects (e.g. OHVs, livestock grazing, invasive species, and climate change) without first carefully considering which factors are most likely to pose the greatest threats.”¹³ The Organizations would be remiss in not noting the relationship that the Research Stations conclusion has with the management within this Proposal. Dispersed motorized recreation’s possible impact on elk, deer and numerous other herd animals has been extensively studied by the National Park Service in addressing winter usage of Yellowstone Park. These analyses are completely relevant to any analysis of dispersed motorized recreation on the CRVO. If there were an impact to elk and deer, the ongoing research in Yellowstone Park would have noted this impact. These analyses have repeatedly found: “Based on these population-level results, we suggest that the debate regarding effects of human winter recreation on wildlife in Yellowstone is largely a social issue as opposed to a wildlife management issue. Effects of winter disturbances on ungulates from motorized and non-motorized uses more likely accrue at the individual animal level (e.g., temporary displacements and acute increases in heart rate or energy expenditures) than at the population scale. A general tolerance of wildlife to human activities is suggested because of the association between locations of large wintering ungulate herds and winter recreation. Habituation to human activities likely reduces the chance for chronic stress or abandonment of critical wintering habitats that could have significant effects at the population level, especially when these activities are relatively predictable.”¹⁴ The Organizations have to note that the biologists who performed the research in Yellowstone immediately acknowledged the social scientist’s position, namely that most concerns regarding wildlife management are based more on socially based user conflicts than on scientifically based findings regarding a negative impact. Another issue of higher impact to wildlife than motorized usage that must be addressed in management of recreation under a single standard would be the impacts of pedestrians with off leash dogs. There is a large body of evidence that concludes wildlife response to off leash dogs is consistently the highest levels of response.¹⁵ If closures are found necessary the route should be closed to all usage as grouse have consistently exhibited similar levels of response to motorized and non-motorized travel. 3c. Correspondence regarding the need for hunting limitations gives rise to management standards that are arbitrary and capricious should recreational access be limited. The Organizations will note that in correspondence dated November 20, 2012 the USFWS has specifically addressed the lack of need for closures to recreational hunting for the Greater Sage Grouse.¹⁶ This correspondence is consistent with previous listing decisions cited throughout these comments. Given the position of the USFWS on this issue, the Organizations would note a directly conflicting and arbitrary management position that could result from closures to recreational access in the Plan, such as those proposed. The arbitrary nature of such management is immediately evidenced when on the ground management is reviewed. This involves two persons recreating in the habitat one riding an OHV and the other personally actively hunting for Grouse. The Organizations believe any management position that riding an OHV near a Sage Grouse poses more of a threat to the birds survival than actively shooting at the Grouse conflicts with best available science and would lack legal or factual basis. This position must be avoided as it is simply arbitrary and capricious, especially when the large number of OHV users are identified as hunters. 4. The implications of changes in management standards are not sufficiently analyzed and are often contradictory. The Organizations are very troubled with the application of landscape level surface disturbance standards as part of the Plan. These standards will be exceptionally difficult to enforce or even calculate accurately on the ground and fail to address that often significant soil disturbance occurs on private lands adjacent to federal lands. There is no mechanism provided to address the application of these landscape level standards in areas where soil disturbance issues on federal lands will simply never address the source of the soil disturbance, which may very well be on private lands adjacent to the public lands.

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

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

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

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

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

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

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

“The Get Out West Advisory Group identified successfully managing the West’s recreation assets as a key factor in facilitating positive outdoor recreation experiences for the region’s citizens and tourists and for local economic development and job creation in communities around these places. “²⁵ This research also compared recreational contributions to many other economic activities that were present in western states. These conclusions were summarized as follows: Overlooked Economic Giant - graphic ²⁶ The WGA economic impact analysis also highlighted 35 recreational opportunities throughout the western states. The overwhelming majority of these highlighted recreational locations involved the use of a dispersed trail network as part of the recreational experience. While many of these opportunities are outside areas to be designated habitat, analysis of these highlighted locations clearly evidences the critical role that the dispersed trail network plays in all recreational activities.

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

Direct Impact	NW CO	SW CO	Cntrl CO	NC CO	East CO
Direct sales	$28,290,700	$77,828,161	$101,974,816	$49,225,045	$14,458,423
Jobs	332	1,100	1,297	639	184
Labor Income	$13,579,699	$30,274,949	$45,595,139	$21,241,172	$6,445,483
Value added or GRP	$17,062,037	$40,246,751	$57,673,570	$27,495,641	$8,264,186
State and Local tax	$1,422,904	$4,515,047	$5,417,621	$2,679,690	$803,708
Federal tax	$274,985	$781,945	$837,600	$528,728	$112,494
Other Activity
Indirect Sales	15,029,394	$51,820,687	$55,614,367	$18,889,621	$13,935,630
Jobs	128	463	463	181	100
Labor Income	$4,623,048	$15,453,087	$17,559,193	$4,725,241	$4,865,225
Other Prop Income	$9,190,579	$30,021,789	$33,618,200	$10,555,900	$8,337,045
State and Local tax	$757,059	$2,523,671	$2,539,796	$873,167	$592,312
Federal Tax	$146,306	$401,852	$392,669	$172,284	$82,905
Total Activity
Sales	$43,320,094	$129,648,848	$157,589,184	$68,114,666	$28,394,053
Jobs	460	1,564	1,760	819	284
Labor Income	$18,202,7474	$45,728,036	$63,154,332	$25,966,413	$11,310,708
Other Prop Income	$26,252,616	$70,268,540	$91,291,770	$38,051,541	$16,601,231
Sales and Local tax	$2,179,964	$7,038,718	$7,957,417	$3,552,857	$1,396,020
Federal tax	$421,291	$1,120,798	$1,230,269	$701,012	$195,400

²⁸

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Respectfully Submitted,

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

D.E. Riggle
Director of Operations
Trails Preservation Alliance

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

Strategizing Policy Needs and Program Delivery for Rural California

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

Magdalena RD Travel Management Proposal Protest

June 24, 2015 in News

June 24, 2015

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

Re: Magdalena RD Travel Management Proposal Protest

Dear Mr. Joyner:

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

Executive Summary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Table 13 Activity Participation

²³

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

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

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

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

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

Visitor spending
²⁵

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

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

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

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

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

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

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

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

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

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

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

Economic Impact of State Parks and Outdoor Recreation

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

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

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

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

Aspects of outdoor recreation Needing Improvement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

7. Conclusion

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

Respectfully Submitted,

Scott Jones, Esq.
TPA Authorized Representative

Don Riggle
Director of Operations
Trails Preservation Alliance

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

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