Archive | July, 2016

Comments on the Rico-West Dolores TMP DEIS

Attn: Debbie Kill
NEPA Coordinator Attn: Derek Padilla Dolores District Ranger
Dolores Public Lands Office 29211 Hwy. 184
Dolores, CO 81323

Re: Comments on the Rico-West Dolores Roads and Trails (Travel Management) Project Draft Environmental Impact Statement Submitted by the Rico Alpine Society

Dear Ms. Kill and Mr. Padilla,

This firm, on behalf of the Rico Alpine Society and its members, submits these comments on the Rico-West Dolores Roads and Trails (Travel Management) Project Draft Environmental Impact Statement (“TMP DEIS”). We appreciate the opportunity to review and comment on the TMP DEIS.

The Rico Alpine Society represents a multitude of user groups.¹ Members have enjoyed the recreational use of the roads, trails, and backcountry within the San Juan National Forest since the early 1960s. The members have a multiple use philosophy, advocating and taking part in recreational activities such as single track riding, four-wheeling, off-highway vehicle (OHV) riding, hiking, hunting, mountain biking, camping, and fishing. Therefore, the continued use and availability of the roads and trails within the Rico-West Dolores area for motorized and non- motorized use are essential to their activities and their interests are directly harmed by the proposed road and trail closures. The following comments identify the issues Rico Alpine Society members have with the current TMP DEIS.

1. No Action Alternative Must be Based on the Current Management Situation

The Council on Environmental Quality (CEQ) regulations require the alternatives analysis in  a  environmental  impact  statement  to  “include  the  alternative  of  no  action.”    40  C.F.R.
§1502.14(d); see 42 U.S.C. §4332(2)(E) (alternatives must address unresolved conflicts). A no action alternative is described as “‘no change’ from current management direction or level of management intensity.” Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026-01, 18027 (Mar. 23, 1981). “Accordingly, the regulations require the analysis of the no action alternative even if the agency is under a court order or legislative command to act.” Id. The current level of activity, or the status quo, provides a benchmark for decisionmakers to compare the social, economic, and environmental impacts of the action alternatives. Id.; Biodiversity Conservation Alliance v. U.S. Forest Serv., 765 F.3d 1264, 1269-70 (10th Cir. 2014); Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1040 (10th Cir.
2001).

The TMP DEIS states that the No Action Alternative “proposes to continue the current motor vehicle designations of roads and trails” and the “types of managed uses for trails would not change.” TMP DEIS at 25. The TMP DEIS defines the existing condition as providing for seven miles of trails opened to wheeled motor vehicles 50-inches or less, 114 miles of trail open to motorcycle use only, and 205.54 miles of National Forest System roads open to all motor vehicles. Id. at 14. The TMP DEIS directs readers to the current Motor Vehicle Use Map (MVUM) posted online, which is a map dated 2015. Id. Under the No Action Alternative, the maintenance levels would not change and there would also be no timing restrictions on motor vehicle use. Id. at 25. The No Action Alternative generally conforms to the 2015 MVUM, except that Trail Number 619 is only open to wheeled vehicles 50-inches or less from December 12th to August 14th and Trail Number 650 is non- motorized. Compare 2015 MVUM with TMP DEIS at Ex. A, OHV and Single Track Trails Alternative A.

The Rico Alpine Society opposes the use of the 2015 MVUM as the baseline for the No Action Alternative because it was not correctly adopted and does not accurately reflect the current land use plan direction and the current management prescription for the Rico-West Dolores area. The 2015 MVUM road and trail designations are based on those identified in the 2005 MVUM. However, there is no area designation in the 2015 MVUM. While the 2015 MVUM is based on the 2005 Travel Management: Designated Routes and Areas for Motor Vehicle Use Rule (70 Fed. Reg. 68264 (Nov. 9 2005) (“hereinafter 2005 Travel Rule), it also incorporates the 2010 temporary cross- country travel closure order (Order No. SJ-2010-08 (June 16, 2010)), and the 2013 Final San Juan National Forest Land and Resource Management Plan (LRMP). Because none of these documents in fact replace the 2005 MVUM and its designations of roads, trails, and areas available for motorized travel in the Rico-West Dolores area, only the 2005 MVUM is the “current direction” or “no action” alternative.

A. Rule Amendments and Temporary Closure Order Do Not Rescind the 2005 MVUM

The 2005 MVUM was completed in compliance with the first amendment to the travel management regulations: Administration of the Forest Development Transportation System; Prohibitions; Use of Motor Vehicles Off Forest Service Roads, 66 Fed. Reg. 3206-01 (Jan. 12, 2001) (hereinafter “2001 Travel Rule”). The effect of this final rule was to ensure that additions to the National Forest System network of roads werethose deemed essential for resource management, that unneeded roads were decommissioned, and that roads that did not compromise healthy lands and waters and are needed for recreation, rural access, and the flow of goods and services are maintained and improved. Id. at 3206-3207. The 2001 Travel Rule requires the identification of a minimum road system that is needed for the National Forest System lands, based on a “science-based roads analysis.” Id. at 3217; 36 C.F.R. §212.5(b). The minimum system is that road system required “to meet resource and other management objectives adopted in the relevant land and resource management plan . . . to ensure that the identified system minimizes adverse environmental impacts associated with road construction, reconstruction, decommissioning and maintenance.” Id. The 2005 Travel Rule did not amend this portion of the regulations and, therefore, the 2005 MVUM is still in compliance with the 2001 Travel Rule.

The 2005 Travel Rule amended the regulations governing administration of the forest transportation system and use of motor vehicles on National Forest System lands. It requires the Forest Service to use the planning process to designate roads, trails, and areas that are open to motor vehicle use and prohibits the use of motor vehicles outside the designated system. 70 Fed. Reg. 68264; 36 C.F.R. §§212.50, 261.13. The 2005 Travel Rule prescribes a decision process, not an outcome. It does not require National Forests or Ranger Districts to rescind any previous decisions that allowed, restricted, or prohibited motor vehicle use on roads, trails, or areas on National Forest System lands pursuant to other authorities such as land management plans and travel plans. 70 Fed. Reg. at 68268; 36 C.F.R. §212.50(b) (Prior decisions may be incorporated into designations made pursuant to the final rule). The prohibition on motor vehicle use outside the designated system goes into effect only after the unit or Ranger District has designated those roads, trails, and areas that are open to motor vehicle use. 70 Fed. Reg. at 68270, 68278. Until these designations are complete and a motor vehicle use map identifying the designations is published, the “existing travel management policies, restrictions, and orders remain in effect.” Id. (emphasis added). Therefore, the 2005 MVUM remained a valid roads and trails decision after the 2005 Travel Rule was promulgated as final and continues to control motor vehicle use in the Rico-West Dolores area.

The Forest Service continues to incorrectly assert that the 2005 MVUM is not in compliance with the 2005 Travel Rule and that the 2005 Travel Rule directed the Forest Service to eliminate all cross country motorized travel. TMP DEIS at 48. See also Rico-West Dolores 2009 Environmental Assessment (2009 EA) at 19 (The No Action Alternative, based on the 2005 MVUM, “would continue to allow summer motorized cross-country travel across broad expanses of the analysis area
. . . it clearly would not comply with the purpose and needs of this analysis nor with the intent of the Travel Rule under 36 CFR 212.”); Rico-West Dolores 2009 Decision Notice and Finding of No Significant Impact (2009 DN/FONSI) at 16 (The 2005 Travel Rule “generally prohibits motorized vehicles off designated routes and eliminates cross-country travel.”). However, the 2005 MVUM does comply with the 2005 Travel Rule regarding cross-country travel.

The 2005 Travel Rule was a mandate to designate roads, trails, and areas as open to motorized use, which the San Juan National Forest has been doing from 1971 to 2005. The term “areas” is defined as “[a] discrete, specifically delineated space that is smaller, and in most cases much smaller, than a Ranger District.” 36 C.F.R. §212.1. This definition expressly implies the availability of cross-country travel in designated portions of the National Forests, which is exactly what the 2005 MVUM map does by designating certain areas (labeled “F”) as open to cross-country travel. The 2005 Travel Rule does not prohibit all cross-country travel, but rather eliminates it for those areas outside of the designated roads, trails, and areas. See U.S. Forest Service News Release, USDA Forest Service Releases Final Rule For Motorized Recreation In National Forests & Grasslands (Nov. 2, 2005), available at http://www.fs.fed.us/news/releases/usda-forest-service- releases-final-rule-motorized-recreation-national-forests.

Under the 2005 Travel Rule, the Forest Service could also issue temporary and emergency closures based on a determination of considerable adverse effects.² 70 Fed. Reg. at 68270; 36 C.F.R.
§261.50. On June 16, 2010, the Forest Supervisor for the San Juan National Forest issued a temporary order prohibiting the use of motorized vehicles off of National Forest System roads. Order No. SJ-2010-08. However, this temporary order expired on December 31, 2015. Id. This order never rescinded the 2005 MVUM, nor could it, because temporary orders are not adopted in conformance with the planning process as required under the 2005 Travel Rule. Therefore, the 2005 MVUM still controls motor vehicle use within the Rico-West Dolores area and should be designated as the No Action Alternative in the current DEIS. By failing to use the accurate no action baseline, the DEIS fails to fully disclose and analyze the impacts on recreation and access. This is an unresolved conflict not addressed by any of the alternatives considered in the DEIS.

B. Land Use Plan Amendments Do Not Rescind the 2005 MVUM

The Forest Service also amended the San Juan National Forest LRMP in 2013. In the amendment, the Forest Service identified areas as unsuitable, suitable, or suitable opportunity for overground motorized travel. Final San Juan National Forest LRMP at 98, 106; San Juan National Forest Record of Decision (ROD) at 12. The LRMP recognized that a number of the areas within the San Juan National Forest had not undergone site-specific travel management planning and for these landscapes, the “travel suitability as depicted on Figure 2.13.1 primarily reflects current management.” Final San Juan National Forest LRMP at 98; see San Juan National Forest ROD at 12-13. For the Rico-West Dolores area, travel management planning had occurred in 2009 but was reversed by the Regional Forester, so the current management or No Action Alternative must still be the 2005 MVUM.

The LRMP and ROD also state that these suitability designations do not address specific road and trail designations because those decisions would be made during future travel management planning.  Final San Juan National Forest LRMP at 96, 99-101; San Juan National Forest ROD at 12. The TMP DEIS confirms this by stating, “[t]his decision will identify a system of roads and trails designated for motor vehicle use . . . . The decision also includes whether or not to include motor vehicle areas (open to cross-country travel).” TMP DEIS at 18; see also id. at 15 (“Language in the new Forest Plan left the door open for site-specific project-level planning to clarify Forest Plan direction for the Rico-West Dolores area.”). The 2005 MVUM already includes areas as open to motorized use and represents the only legal baseline for analysis under this DEIS. The question to consider in this TMP DEIS is whether these areas should remain open or be closed to future motorized use.

The 2005 Travel Rule and the 2013 San Juan National Forest LRMP clearly recognize that travel management planning analysis is required before any prior road, trail, or area designations would be rescinded. Therefore, the 2005 MVUM and its designation of roads, trails, and areas that are open to motorized travel, is the current management situation in the Rico-West Dolores area and must be the No Action Alternative under TMP DEIS. See 46 Fed. Reg. at 18027 (no action alternative based on the current management direction). Otherwise the TMP DEIS fails to correctly disclose the significance of the changes being proposed and the impact this has on motorized users.

The 2009 EA for the Rico-West Dolores TMP also recognized that the No Action Alternative was the 2005 MVUM, but then erroneously eliminated it from consideration by the public. 2009 EA at 19 (“Alternative A (No Action), considered the 2005 San Juan National Forest Visitor Map as a baseline for designating the official transportation system. . . Since this alternative would continue to allow summer motorized cross-country travel across broad expanses of the analysis area . . . it clearly would not comply with the purpose and needs of this analysis nor with the intent of the Travel Rule under 36 CFR 212. Therefore, it was not considered a viable alternative and was eliminated from further analysis.”). The TMP DEIS also justified not using the 2005 MVUM map as the no action alternative because it did not conform to the purpose and need. TMP DEIS at 48-49. This is completely contrary to the actual direction of the 2005 Travel Rule, as previously discussed. NEPA also requires consideration of the no action, even if it does not meet the purpose and need of the proposed action. 42 U.S.C. 4332(2)(E); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988). See also Pit River Tribe v. U.S. Forest Service, 469 F.3d 768, 784 (9th Cir. 2006) (Alternatives requirement ensures the agency decision-maker has before it all possible alternatives.)

This TMP DEIS is very similar to the Bob Marshall Alliance case, because the Forest Service justified not considering the no action alternative on the basis that it did not meet the purpose and need. In both, the no action alternative was necessary to address unresolved conflicts. The Forest Service in Bob Marshall Alliance failed to consider users who supported no oil and gas leasing. Here the Forest Service is ignoring a significant segment of the public users who enjoy and use the forest for motorized recreation. Because the no action alternative is a substantive NEPA obligation, the agency’s deliberate failure is fatal to the validity of the TMP DEIS.

The public has never had an opportunity to consider a No Action Alternative based on the 2005 MVUM in either the 2009 EA or this TMP DEIS. NEPA still requires it be part of the process to ensure satisfaction of NEPA’s twin objectives, informed decisionmaking and meaningful public involvement. Baltimore Gas and Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983).  The TMP DEIS violates NEPA by omitting the true no action alternative.

C. The CEQ Regulations and Case Law Support Defining the No Action Alternative Based on the 2005 MVUM

The TMP DEIS states that the 2005 MVUM was not carried forward as an alternative for detailed study because of the impact cross-country travel has on wildlife habitat and wetlands areas, and because it fails to meet the purpose and need of the proposed action. TMP DEIS at 48-49. The Forest Service’s rationale for not analyzing the 2005 MVUM as the No Action Alternative is contrary to the Council on Environmental Quality (CEQ) regulations and case law. It is also illogical. If the No Action Alternative already has no impact on wildlife habitat and wetlands, then there is no need to take any action to further protect habitat and wetlands.

Under the CEQ regulations, the No Action Alternative is based on the status quo or the current management direction. 46 Fed. Reg. at 18027. The regulations require the inclusion of the No Action Alternative (40 C.F.R. §1502.14(d)) and further emphasize its importance of providing a baseline or benchmark for decisionmakers to compare the environmental impacts of the action alternatives. 46 Fed. Reg. at 18027; Biodiversity Conservation Alliance, 765 F.3d at 1269-70 (Court held that considering the past motorcycle usage on a trail as part of its no action alternative complied with NEPA, as opposed to using the condition of the area prior to motorcycle use.); Custer County Action Ass’n, 256 F.3d at 1040 (“In requiring consideration of a no-action alternative, the [CEQ] intended that agencies compare the potential impacts of the proposed major federal action to the known impacts of maintaining the status quo.”). Therefore, the No Action Alternative is not only a possible alternative, but also a benchmark for comparing the impacts of all other proposed alternatives.

The TMP DEIS statement that this proposed No Action Alternative does not meet the purpose and need of the proposed action also misses the point on why this alternative must be considered. The purpose and need of the proposed action “is to manage over-ground wheeled motorized vehicle use in accordance with the requirements of the Travel Management Rule (36 CFR 212),” which “requires the Forest Service to designate a system of roads, trails, and areas for motorized use.” TMP DEIS at 17. However, as was discussed above, the 2005 Travel Rule provided that “existing travel management policies, restrictions, and orders remain in effect” until travel management planning occurs and a MVUM is published. 70 Fed. Reg. at 68270, 68278. Further, the No Action Alternative acts as a benchmark for comparing the impacts of all the other proposed alternatives and, therefore, must be considered even if the agency is under a legislative command to act. 46 Fed. Reg. at 18027; see Tennessee Envtl. Council v. Tennessee Valley Authority, 32 F. Supp. 3d 876, 887 (E.D. Tenn. 2014) (Defendant’s use of the status quo of continuing operations of a plant without emission control, even though this would not comply with applicable environmental requirements, as the no action alternative comported with the CEQ requirements under NEPA.). Therefore, designating the 2005 MVUM as the No Action Alternative is required by NEPA and the CEQ regulations.

2. Failure to Inventory and Address All Existing Roads and Trails

It appears that the TMP DEIS merged cross-country travel with “user-created” or “unauthorized” routes that are not designated as part of the National Forest transportation system. See TMP DEIS at 49, 94. Cross-country travel occurs when a motorized vehicle travels across the land without following a pre-existing road or trail. However, there are a number of roads and trails within the Rico-West Dolores area that exist on the ground but have not been designated as a Forest Service road or trail. See Final San Juan National Forest LRMP FEIS at 382 (estimating that there are more than 3,000 miles of unauthorized roads and trails within the planning area). This would include historic logging roads, mining roads, and roads created by public use over time. The TMP DEIS incorrectly assumes that all of these roads are unauthorized. Logging and mining roads are expressly authorized. Many other roads originally provided access to homesteads where people no longer live or were purchased by the United States. These are roads or trails that would be considered valid existing rights-of-waythat predated the creation of the National Forest. See S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 762-66 (10th Cir. 2005); Gold Hill Dev. Co., L.P. v. TSG Ski & Golf, LLC, _ P.3d _, 2015 WL 9245456, at *2 (Colo. 2015); Bockstiegel v. Bd. of County Comm’rs of Lake County, 97 P.3d 324, 328-31 (Colo. 2004). The Rico Alpine Society members do not wish to haphazardly travel cross-country, but instead request the Forest Service to consider these existing roads and trails under the No Action Alternative pursuant to the 2005 MVUM and as possible additions to the National Forest transportation system.

The TMP DEIS proposes to close all or portions of Bear Creek, Horse Creek, Burnett Creek, and Ryman Trails to motorized use. TMP DEIS at 27-29. However, all of the trails can be linked to old mining and logging roads and/or trails that existed prior to the establishment of the National Forest. The Town of Rico and the surrounding area was well know for its mining potential in the late 1800s and was first prospected in 1869. Charles M. Engel, Rico, Colorado: A Century of Historic Adventures in Mining, in NEW MEXICO GEOLOGICAL SOCIETY 19TH ANNUAL FALL FIELD CONFERENCEGUIDEBOOK88, 88 (1968); Edwin T. McKnight, Geologyand Ore Deposits of the Rico District, Colorado 4 (United States Government Printing Office, Washington 1974). The substantial mining efforts and gains occurred in this area after the panic of 1873, and by 1878 the prospectors in the Dolores River valley increased exponentially. Engel at 89. By the spring of 1879, a booming mining town was created with an estimated population of 1,200 people and the Town of Rico was officially established later that fall. Id. at 89-90. Between 1879 and the 1890s, the area showed steady growth with the discovery of some significant ore deposits in Horse Gulch, CHC Hill, and Newman Hill. Id. at 90-91. The mining activity continued into the 1900s with the construction of mills in the 1920s and 1930s, and the construction of a sulfuric acid plant in the 1950s. McKnight at 4-5.

The majority of the mineral production from this early time period came from the area east of Rico in the areas known as CHC Hill, Nigger Baby Hill, the valley of Silver Creek, and Newman Hill. McKnight at 4. However, there was also some mineralized ground and mining on the west side of Dolores River and Rico, including in the areas known as Iron Gulch and Horse Gulch. Engel at 88, 91. A number of roads and trails led to these mineral deposits and mines, denoted as prospects on the United States Geological Survey (USGS) Topography Maps. See Ex. 1, June 1899 USGS Topography Map of Rico, Colorado; Ex. 2, June 1899 USGS Topography Map of Rico, Colorado (reprinted in Sept. 1905); Ex. 3, August 1899 USGS Topography Map of Rico, Colorado.

In the 1899 USGS Topography Maps, Horse Creek and Burnett Creek Trails were identified as roads along almost the entire route and then as trails along the western portions. See id. These two trails would have provided access to the mining activity occurring in the Iron Gulch and Horse Gulch areas. Id.; see Engel at 88, 91. Burnett Creek and Ryman Trails were also identified as trails in the 1899 maps. Ex. 1, June 1899 USGS Topography Map of Rico, Colorado; Ex. 2, June 1899 USGS Topography Map of Rico, Colorado (reprinted in Sept. 1905); Ex. 3, August 1899   USGS Topography Map of Rico, Colorado.

The 1899 USGS Topography Maps also show the existence of other roads and/or trails that the Forest Service is failing to analyze in the TMP DEIS. For instance, Morrison Trail and Papoose Creek Trail are identified as trails and Silver Creek Trail is identified as a road on the 1899 maps. See Ex. 1, June 1899 USGS Topography Map of Rico, Colorado; Ex. 2, June 1899 USGS Topography Map of Rico, Colorado (reprinted in Sept. 1905); Ex. 3, August 1899 USGS Topography Map of Rico, Colorado. Silver Creek Trail would have provided the early mining prospectors access to Nigger Baby Hill and the valley of Silver Creek. See id.; McKnight at 4. This is just an example of those road and/or trails that have existed as valid existing rights-of-way since at least 1899 and that the TMP DEIS is failing to analyze for motorized use. Other trails that are currently proposed to remain open to motorcycle use are also identified on these early maps, including Eagle Peak, Priest Gulch, and East Fork Fall Creek Trails. Ex. 1, June 1899 USGS Topography Map of Rico, Colorado; Ex. 2, June 1899 USGS Topography Map of Rico, Colorado (reprinted in Sept. 1905); Ex. 3, August 1899 USGS Topography Map of Rico, Colorado

The San Juan National Forest LRMP FEIS states that the unauthorized routes in suitable opportunity areas on National Forest System lands may be considered for incorporation into the transportation system through the travel management planning process. Final San Juan National Forest LRMP FEIS at 382. The 2005 Travel Rule even recognized that “some user-created routes would make excellent additions to the system of designated routes and areas” and also recognizes valid existing rights-of-way. 70 Fed. Reg. at 68269, 68274, 68275, 68282; 36 C.F.R. §212.55(d)(1). However, the TMP DEIS does not provide any discussion about user-created routes or valid existing rights-of-way except in terms of their impacts to resources (TMP DEIS at 77, 90, 93-94, 95, 99) and the addition of about 1 mile of user-created routes to the National Forest transportation system under the action alternatives (id. at 39, 44, 199). Further discussion and consideration of the user-created or unauthorized routes will occur when the 2005 MVUM is designated as the No Action Alternative.

3. TMP DEIS Must Address Demand for Motorized Recreational Use

Congress requires the Forest Service to manage the National Forest System lands for multiple use and sustained yield. 16 U.S.C. §529. In developing, maintaining, and revising plans for National Forest System lands, the plans must provide for multiple use and sustained yield in accordance with the Multiple-Use-Sustained-Yield Act of 1960. 16 U.S.C. §1604(e)(1); 36 C.F.R. §219.1(b)-©. This includes the “coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. §1604(e)(1); 36 C.F.R. §219.10. The plan’s monitoring program must also address “[t]he status of visitor use, visitor satisfaction, and progress toward meeting recreation objectives.”  36 C.F.R. §219.12(a)(5)(v).

The TMP DEIS discusses recreation impacts, but most of the information is based on field observation of the staff and not formal studies. TMP DEIS at 139. The TMP DEIS cites visitor data on the San Juan National Forest from 2011 with surveys that indicate four percent of the visitors are in the area for motorized use while 66 percent were in the area for non-motorized trail use.  Id. at 172. However, before any roads or trails are closed to motorized use, this information must be updated to account for any increased demand of motorized recreation since 2011 in the Rico-West Dolores TMP area. There should also be further discussion on what roads and trails are most often used by the motorized users.

According to the Colorado Parks and Wildlife 2013 Outdoor Recreation Participation Public Survey Summary Report, around 20 percent of Colorado’s population participates in motorized uses (16.9 percent participating in ATV riding and 5.6 percent participating in off-road motorcycling). See https://cpw.state.co.us/Documents/Trails/SCORP/2013PublicSurveySummaryReport.pdf. Outdoor motorized recreation has only continued to increase since 2013. The American Recreation Coalition reported good sales and activities for 2015 outdoor recreation, and stronger expectations for 2016. American Recreation Coalition, Positive Outlook for Outdoor Recreation in 2016 (Oct. 29, 2015), available at http://www.funoutdoors.com/files/10%20-%20Positive%20Outlook%20for% 20Outdoor%20Recreation%20in%202016.pdf. Included in this growth, is the use of on- and off- highway motorcycles and ATVs with almost 30 million Americans riding motorcycles and 35 million riding ATVs annually. Id. The above statistics contradict the TMP DEIS’s estimate of four percent.

The TMP DEIS alternatives’ impact on single track motorized use is put into perspective when you consider the number of miles and acres that are open for single track motorized use under the current No Action Alternative. There are 114 miles of trails, which equates to about 34.2 actual acres that are open to single track motorized users. See TMP DEIS at 27. This represents about 0.014% of the 244,550 acres within the Rico-West Dolores TMP area. All other action alternatives designate even fewer trails as open to single track motorized users. See id. Alternatively, hikers, horseback riders, hunters, bird watchers, backpackers, fishermen, and nearly every other user group other than mountain bikers have access to 100% of the Rico-West Dolores TMP area. No other user group is limited to the extent that single track motorized users are under the TMP DEIS, nor should they be. Rico Alpine Society request that the TMP DEIS alternatives be based on a shared and balanced multiple use philosophy.

4. Seasonal Restrictions on Motorcycle and Other Motorized Uses

The Rico Alpine Society appreciates the Forest Service identifying seasonal restrictions on motorcycle use as an issue to address within the TMP DEIS. The Rico Alpine Society supports alternatives that are weather driven and not date driven for the seasonal restrictions.  Single track motorized users have historically begun riding as soon as the weather permits and will cease in the fall when the snows begin again. As the TMP DEIS states, “[o]ver-ground recreation use reduces substantially when deep snowfall closes the trails, usually by November.” TMP DEIS at 11. The Rico-West Dolores TMP area has been successfullymanaged this wayfor several decades. A longer riding season allows time for the motorcyclist to clear the trails and also allows them to enjoy the fall riding season. “These timing restrictions could have a negative impact on motorized users if the recent string of mild winters continues, since less snow would otherwise allow earlier access to trails, including south Calico Trail and arterial trails like the ones in Priest Gulch, on Stoner Mesa, and in the Groundhog-Willow Divide area. Heavier winters are self-regulating in that deep snows, especially in the higher Calico Trail system or Lone Cone area, prevent motorized users from accessing the trail system.”  Id. at 145.

The Rico Alpine Society also opposes seasonal restrictions on motorcycle use on the basis of protecting elk habitat and reducing motor vehicle impacts to hunters. The 2009 Rico-West Travel Management Plan DN and FONSI was reversed and remanded for additional analysis. Specifically, the Appeal Officer reversed the decision as it related to seasonal closures because this was not presented for public comment and was arbitrary for instituting seasonal closures. The notable argument brought by those appealing the DN and FONSI on this basis was the lack of data showing that elk habitat and hunting was impacted by motorized uses. The TMP DEIS still suffers from the same flaws. The fact that the TMP DEIS repeats the same mistake as the EA does not cure the flaw.

The elk populations have consistently exceeded agency goals and there is no evidence that 50 plus years of single track motorized use has negatively impacted the elk populations. The TMP DEIS states that “[e]lk populations have grown in the past two or three decades, and currentlyexceed the Colorado Parks and Wildlife objectives.” TMP DEIS at 112. “Research has shown that elk seldom are alarmed at normal disturbance-type activities such as vehicular traffic, camping, fishing, or other recreational activities beyond a threshold distance of ½ mile.” Id. at 116. If elk are disturbed in the fall, it is more likely due to hunting. Therefore, the TMP DEIS does not support reducing the number of open routes and placing spring and fall timing restrictions on motorcycle use to protect elk habitat. The TMP DEIS states that the reductions and seasonal restrictions will help to increase elk security areas in the planning area, but then states “there are sufficient security areas with adequate cover and forage across all alternatives.” Id. at 117 (emphasis added). Also, even though motorcycle use would be limited in the fall, heavy use of the roads and OHV trails would continue to pressure wildlife. Id. If the Forest Service wants to increase the security areas, it would coordinate with Colorado Division of Wildlife to close areas within the National Forest to hunting.

As to the assertion that motorcycle use impacts hunters (see TMP DEIS Executive Summary), the TMP DEIS discussion contradicts this assertion. It recognizes that hunters use motorcycles on single track trails to access hunting areas, so any fall seasonal restrictions on motorcycle use would adversely impact those hunters. TMP DEIS at 145-146, 166. Some hunters complain about hearing a motorcycle when they are hunting, but the TMP DEIS notes that the number of motorcycle riders using the trails declines in the fall. Id. at 166-167. There have also been no documented cases of safety issues from one user group interacting with another user group. Id. at 203. Therefore, a reduction in motorized trails and seasonal restrictions is not required to lessen the impact on hunters.

The Rico-West Dolores trails have been successfully used by single track motorized users since the 1960s. There is no evidence that 50 plus years of single track motorized use has created any trails that did not already exist as a result of historic mining or mineral exploration, logging, cattle and sheep ranching, horseback riding, hiking, or any other historic use. All of the routes currently used by single track motorized users can be found on maps dating back 40 to 100 plus years.

5. Economic Impact to the Town of Rico

The Rico Alpine Society appreciates the Forest Service identifying the economic impact to the Town of Rico if road and trail management changes as an issue to address within the TMP DEIS. The members strongly oppose closing the three nearest single track trails to the Town of Rico: Horse Creek, Burnett Creek, and Ryman Trails. These trails have a direct impact on the Town of Rico’s local economy. When riding on these trails, motorcycle riders will generally stop in the Town of Rico for fuel and food. Motorcycle riders will be discouraged from going into the Town of Rico if they have to ride up from the Calico Trail or down from the East Fork Trail to gain access to Rico via Highway 145.  See TMP DEIS at 179.

The Rico Alpine Society, therefore, supports the 2005 MVUM and valid and existing rights- of-way, which keep all three trails open and allows reasonable access to the Town of Rico from motorcycle users coming from the west (Burnett and Horse Creek) and southeast (Ryman). See id. at Ex. A – OHV and Single Track Trails Alternative A Map. The members do support the addition of the Rio Grande Southern Trail that allows motorcycle riders access to Highway 145 near the west side of the Town of Rico. See id. at 42-43, 160. However, the Rio Grande Southern Trail (or Galloping Goose) only makes sense if (1) riders do not have to ride four miles away from the Town of Rico on the Rio Grande Southern trail, turn around, and ride four miles back to Rico on Highway 145; and (2) the Rio Grande Southern Trail provides motorized access to the Ryman Trail.

6. Additional Comments on Specific Motorcycle Trails

The Rico Alpine Society supports the continued motorcycle use of Bear Creek, East Fall, West Fall, Burnett, Horse Creek, Ryman, and Winter Trails pursuant to the 2005 MVUM.  All of the action alternatives propose to close significant portions of these trails, if not all, from motorcycle use. In addition, the Rico Alpine Society would like to note that the TMP DEIS states that the Morrison Trail remaining open for motorcycle use will not be carried forward in any alternative (TMP DEIS at 50, 146), but then it states later on that Morrison Trail will remain open to motorcycle use under Alternative B (id. at 160). The Rico Alpine Society supports reopening this trail to motorcycle use as a valid and existing right-of-way. See Ex. 1, June 1899 USGS Topography Map of Rico, Colorado; Ex. 2, June 1899 USGS Topography Map of Rico, Colorado (reprinted in Sept. 1905). The Morrison Trail connects the Rico-West Dolores area with the Mancos-Cortez area, which also has a network of motorized trails. Gold Run Trail is the only trail that currently connects the two travel management areas. Morrison Trail is less technical than Gold Run Trail and appeals to a larger number of riders who want to ride the Mancos-Cortez trails but reside in the upper Dolores River valley, the Town of Rico, or the Telluride region.

Thank you for the opportunity to comment on the TMP DEIS.

Sincerely,

/s/ Danielle R. Hagen      Danielle R. Hagen
C.E. Brooks & Associates, P.C.

1 The participating user groups from the Rico Alpine Society include: Timberline Trail Riders, Southwest Public Lands Coalition, Four Corners Trail Club, San Juan Trail Riders, Public Access Preservation Association (PAPA) Telluride, Trails Preservation Alliance, and Colorado Off Highway Vehicle Coalition (COHVCO).

2 The authority to issue temporary orders to close roads is not new. The rulemaking in 2001 and 2005 made no changes in the regulation, which was first promulgated in 1977, 42 Fed. Reg. 2957.

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DEIS Rico-West Dolores Comments

MSBT Law – Attorneys and Counselors at Law
95 W. Bannock Street, Suite 520
Boise, ID 83702

Submitted via email to dkill@fs.fed.us

Debbie Kill, NEPA Coordinator
Mancos/Dolores Ranger District
San Juan National Forest
29211 Highway 184
Dolores, CO 81323

RE: Comments to Draft Environmental Impact Statement Rico-West Dolores Roads and Trails (Travel Management) Project

Please accept the following comments to the Draft Environmental Impact Statement (“DEIS”) for the Rico-West Dolores Roads and Trails (Travel Management) Project (the “project”). These comments are submitted on behalf of our clients the Trails Preservation Alliance (“TPA”), Colorado Off Highway Vehicle Coalition (“COHVCO”) , and the BlueRibbon Coalition (“BRC”). We appreciate this opportunity to continue our involvement in the public planning effort in the Forest and the Rico-West Dolores area (“RWD”).

These comments are separate and independent from any additional comments submitted by the above-named organizations, their partners, or any of their collective members. The agency should evaluate and respond to all such comments. Please direct any questions or correspondence regarding these comments to Paul Turcke via the above-listed contact information or to pat@msbtlaw.com.

We reiterate and incorporate by reference herein our comments to the Proposed Action for the Project dated January 30, 2015 . The observations in those comments remain applicable, perhaps with even greater force as the project evolves. Again, we will refer frequently in these comments to declarations submitted by various Forest Service employees in Backcountry Hunters and Anglers, Colorado Chapter v. U.S. Forest Service, Case No. 11-CV-3139 (D. Colo.) and Nos. 13-1216 & 14-1137 (10th Cir.) (the “CBHA litigation”). Those documents are part of the public record, and we will therefore cite to them but will not enclose additional copies herewith. Please let us know if you would prefer that we provide copies. The agency appropriately, and successfully, rebutted virtually every factual premise asserted in the CBHA litigation by “quiet recreation” advocates. It would constitute an unjustified and arbitrary reversal of course for the agency to now, through the project, capitulate to those interests and rely on virtually the same undocumented list of demands as a justification for reducing motorized recreation opportunities.

A. The Agency Should Adopt a Modified Alternative C.

We are not satisfied with any of the DEIS alternatives, but believe that a workable solution could be achieved based upon Alternative C. Our clients and their partners have carefully studied the DEIS, maps, project files and other materials. We support and incorporate by reference herein the “ALTERNATIVE C (modified)” version as stated in the San Juan Trail Riders (“SJTR”) comments to the DEIS.

The agency can appropriately select the Alternative C (modified) proposal. We note that the DEIS does not identify a preferred alternative, and encourages “comment on the individual aspects of each alternative.” DEIS Executive Summary at 1. Responses to public comments on an EIS “may include ‘[d]evelop[ing] and evaluat[ing] alternatives not previously given serious consideration by the agency’ and ‘[s]upplement[ing], improve[ing], or modify[ing] its analyses.”‘ Oregon Natural Desert Ass ‘n v. BLM, 531 F.3d 1114, 1120 (9th Cir. 2) (quoting 40 CFR 1503.4(a) (bracketing in ONDA)). The elements in the SJTR Alternative C (modified) are drawn from and within the range of alternatives A through E in the DEIS.

We wish to particularly address the proposed designation of the Morrison Trail number 610. Our clients have apparently been advised by Forest Service employees that the Morrison Trail traverses private property and that the current owner of this property and/or nearby properties has expressed strong opposition to motorized access along the Morrison Trail. This position is presumably heartfelt and predictable, but oblivious to the unique chain of title. The United States holds “an easement and right-of-way in gross to reconstruct, repair and maintain a stock driveway and trail, consisting of a st(r]ip of land Thirty (30) feet in width, as now existing and in use” over and across the land in question. Right-of Way Deed dated May 17, 1948 (underlining in original). We do not contend that the express easement necessarily requires continuation of long-occurring motorcycle use along the Morrison Trail right-of-way. Rather, the agency’s apparent refusal to consider continuation of such motorcycle access is contrary to law, arbitrary, and short of statutory right. In other words, an agency position that the express easement must be limited to use as a stock driveway or that the express easement somehow precludes motorized access is incorrect, and would form an insufficient basis for the failure to even consider motorcycle use along Morrison Trail in the project. Alternatively, there are options for re-routing the motorcycle access previously occurring along Morrison Trail that should receive meaningful consideration within the range of alternatives. The historical or relocated Morrison Trail provides important and sustainable connection to Haycamp Mesa, and has been an important component of the integrated single-track network in and around the Project area.

Alternative C (modified) as outlined by SJTR represents the best available option for concluding the project.

B. No Issues Presented Rationally Justify Restrictions of Motorized Use.

The DEIS purpose .and need identifies several specific issues that the Forest Service considers “the most pressing concerns” to be addressed through the project. DEIS Executive Summary at 1; DEIS 1.10 at 20-22. Some of the issues can only justify maintaining, if not expanding, current motorized access. See, e.g., DEIS at 20 (loss or reduction of motorized recreation opportunities; economic impacts from reduced visitation by motorized recreationists ). We will not address these issues, other than to note they represent valid concerns about the impacts of some alternatives on the human environment. We will instead focus on each of the issues that preservationist interests might invoke as a basis for motorized access restrictions . In each case, the anti-access concerns are incorrect, impractical, and contradicted by the DEIS and/or sworn Forest Service testimony.

1. Environmental Impacts.

A variety of “environmental impacts” are described among the key issues, specifically including possible impacts to elk habitat effectiveness, riparian areas, qarriers to sensitive species fish passage, sedimentation in sensitive fish species habitat, and vegetation issues such sensitive plant species habitat in alpine areas or to high elevation fens. DEIS at 21. None of these issues justify further reductions of motorized use along designated trails.

a. Elk Habitat Effectiveness.

Alleged adverse impacts to elk cannot form a rational basis for further restrictions on recreational trail access in the project area.

The DEIS itself makes clear that recreational OHV riding and particularly motorcycle use of single-track trails cannot be intelligently tied to elk management concerns. Modifying the management balance of motorized use in the RWD solely addresses elk habitat issues, which are of only secondary importance to the larger influences of “human population and growth and land development.” DEIS at 112. Even using the identified habitat metrics, there are trivial differences between the alternatives. See, DEIS Table 3-25 (p. 113) (showing range of “security area” by alternative, varying from 106,557 to 139,029 acres, or a range of 41 to 54 percent of total habitat). While there is a lot of cryptic discussion about the impacts of motorized routes on elk populations and behavior, the core concept is that roads/trails facilitate human access, human presence can disturb elk, and “[t]his association between human encroachment and elk disturbance is played out in its extreme during the hunting season.” DEIS at 116. Put differently, elk care a lot less about a road or a motorcycle riding along a road than they do humans trying to kill them with rifles. If greater concentrations of humans wielding rifles are found along roads, it is hardly remarkable that elk will tend to be cautious of such areas.

These are fascinating topics which play out in some detail in many discussions between land/wildlife managers and the public around the West, but they are of little more than academic importance in the RWD. There are a lot of elk in RWD, and available indicators suggest that we should be trying to harvest more of them. The relevant analysis unit contained a herd in 1987 estimated to number 14,500 “and was probably rapidly growing.” DEIS at 112-113. Starting in 1989 cow harvest “was increased dramatically in an attempt to stop the herd growth, and stayed relatively high through 1994.” DEIS at 113. This cow harvest was “relaxed” which “allowed the herd to rapidly grow again.” Id. State wildlife managers indicate “the herd has continued to increase and may now exceed 19,000.” Id.

These statements all echo the sworn testimony District Wildlife Biologist Ivan Messinger, as conveyed in his declaration dated April 23, 2012 in the CBHA litigation (D. Ct. Dkt. 34-7). That testimony addresses the sufficiency of security areas (¶ 6), the fact that human disturbance is not solely attributable to motorized travel (¶ 7), and variously discounts the concerns about elk and other wildlife concerns raised by anti-access interests.

At the end of the analysis, elk management and habitat effectiveness issues are simply a non-issue in relation to recreational use of motorized trails in the RWD. The DEIS properly states “habitat effective[ness] for elk is maintained across all alternatives.” DEIS at 117 (emphasis added). Elk habitat effectiveness cannot form a defensible basis for reduction of existing motorized access.

b. Riparian Areas at Fish and Willow Creeks.

The agency expresses additional concern that “riparian areas at the headwaters of Fish Creek and Willow Creek may be impacted by illegal cross-country ATV or UTV driving.” DEIS at 21. However, there is little meaningful analysis of the current level of illegal activity, or its projected future occurrence under specific alternatives. The DEIS explains that the action alternatives generally create reductions in historical access, including decommissioning of some ML 1 roads. As a result, the net impact to riparian and watershed resources is a beneficial impact. DEIS at 80-81.

There is no demonstrated occurrence, or even risk, of illegal cross-country riding. The mere prospect of illegal cross-country use cannot form a defensible rationale for eliminating vehicle travel on designated routes in these areas.

c. Sensitive Species Fish Passage or Sedimentation.

The list of environmental impacts includes “potential barriers to sensitive species fish passage” and “sedimentation from roads or trails may occur in sensitive fish species habitat in four creeks.” DEIS at 21.

The DEIS does not provide a basis for reductions based on the identified fisheries/sedimentation issues. There is no basis to rely on sensitive fish species for any aspect of this decision, for “[n]one of these four [SJNF] species is known to occur within the project area or has the potential to be affected by this project.” DEIS at 82. There is some discussion of MIS including various native and introduced trout species. These are should similarly non­ factors in this decision -“All action alternatives would lead to some decrease in road miles and this would benefit watershed health to some degree.” DEIS at 83. Despite this recognition, the DEIS has some questionable statements, such as the undocumented assertion that sediment production would require mitigation for increased trail use from motorcycles. DEIS at 83. As will be demonstrated below, the nature of use on a trail is a trivial factor in sediment production, compared to much larger factors such as trail location, design features, and site factors like soil type, slope, aspect, vegetation cover, and other features. Further, there is no finding regarding use types or levels, or a defensible assertion that any type of use will increase under any alternative.

Again, the testimony of Forest Service employees in the CBHA litigation soundly rejects any argument that fish habitat or sedimentation concerns can justify restrictions on long­ occurring vehicle travel. For one thing, it is difficult to separate natural background sediment levels in streams from that resulting from trails, especially in Bear Creek. CBHA Declaration of Jonina Vanderbilt (Doc. No. 34-6). While there may be a handful of places where trail crossings can introduce sediment, “these impacts are more a function of trail design, location and maintenance than a function of one type of trail user on the trail.”

Anti-access special interests proclaim a litany of OHV-caused sedimentation issues, which have been methodically rebutted by the agency itself. Recent closures on the Calico Trail have re-invigorated these cries for closure, but Ms. Vanderbilt previously explained the actual situation on that site and concluded that “[i]f motorcycle use were removed from this section of the Calico Trail, the same entrenchment, braiding and water drainage problems would occur. These problems occur due to improper trail design and the use of the trail by all types of users.” Id. at ¶ 7. This is not a reason to revamp a decades-long trail network but “is an example of a standard trail reconstruction practice that is used to address localized resource damage.” Id.

The qualified specialist during the CBHA litigation similarly explained why fisheries issues are a non-issue for RWD motorized travel management. Importantly, “[t]he populations of cutthroat trout occurring in Ryman Creek and Bear Creek are not considered conservation populations and have no special status that would warrant added protection under the ESA, any current Conservation Agreement, or the SJNF Forest Plan.” David Gerhardt Declaration (Doc. No. 34-8. In other words, there are not “sensitive species” fisheries issues implicated by this Project. To the extent that anti-access advocates raise fisheries impact claims, they have been emphatically rejected by qualified specialists:

Mr. Sykes Declaration states that “I believe silt damage from ORVs impacts trout reproduction within Bear Creek.” (Sykes Deel. ¶ 16). I do not believe this statement to be true, and my observations do not support Mr. Sykes’ claim. While trails that cross live streams can act as sediments conduits and facilitate sediment delivery to the stream, the effects of sediment inputs resulting from trail crossings are typically localized. Unless such crossings are frequent throughout the drainage, it is unlikely these localized effects would influence fish reproduction or population densities as a whole. It should also be remembered that the trails at issue here would exist with or without ORV use and would continue to act as sediment conduits, regardless of the type of uses applied. Also, it has been my experience that trout populations on the SJNF are rarely limited by a shortage of adequate spawning habitat. Trout populations in general require very little spawning habitat to provide sufficient reproduction and recruitment into subsequent age classes that will support healthy adult populations. ‘The quantity and quality of spawning gravels observed in steams throughout the SJNF typically exceed the requirements to fully support healthy trout populations. With rare exception, the biological limiting factors for our streams are things other than excessive sedimentation levels that would restrict trout reproduction and ultimately reduce population densities of adult fish.
Id. at ¶ 5. There are no fisheries issues that can intelligently dictate the extent to which the Forest Service reduces the long-standing motorized route network through the RWD travel management process.

d. Vegetation.

The potential issues include a handful of vegetation concerns, including potential spread of weeds along new trails, sensitive plant species impacts in alpine areas, and impacts to high elevation fens due to “the physical location of certain roads and trails (regardless of use).” DEIS at 21.

Again, the agency’s prior sworn testimony precludes the use of this rationale to restrict historical vehicle travel. In the CBHA litigation Cara MacMillan testified that trails have long existed, braiding is minimal, and that habitat is abundant and intact outside the limited trail tread. Any impacts, however minimal, will persist even in the absence of motorized use. CBHA Declaration of Cara MacMillan (Doc. No. 34-9). Regarding sensitive species, Ms. MacMillan explained the only species of concern is “a Forest Service, Region 2 Sensitive Plant named Colorado tansy-aster (Macaranthera coloradoensis) which grows adjacent to the Calico Trail near Storm Peak. I have observed this plant three times over the past several years and have found it to be thriving, with no adverse impacts related to trail use of any’ type (horse, hike, bike or motorcycle.” She further explained that “recovery of tundra vegetation within the trail tread could only occur by removing the trails from alpine tundra altogether. This would require removal of foot travel, horse travel, and mountain bikers in addition to removal of motorcycle use.” Id.

Alpine vegetation issues cannot form a rational basis for restricting decades-long vehicle use to the RWD area. The impacts are minimal and they are attributable to trail occurrence and related ongoing human presence, not motorized use.

e. Maintenance Feasibility.

The DEIS further expresses “concern that the system of roads and trails proposed cannot be adequately maintained which would lead to resource impacts.” DEIS at 21. The listed challenges include wetland impacts or drainage issues, easily erodible soils, and longer than desired maintenance intervals on native surface roads.” Id.

The Forest Service has again explained why maintenance concerns cannot rationally justify restrictions that single out motorized travel. Agency specialists have explained:

It is arbitrary to draw the conclusion that the trail damage comes from motorcycle use given the fact that many of the maintenance problems presented by Mr. Marion occur on Forest Service trails regardless of the type of use those trails receive and some trails would erode because of their location and environmental factors even if no one used the trail. Many factors contribute to trail problems and in my professional opinion, even if motorcycle use was removed from these trails there would little difference in the physical maintenance required on these trails.

CBHA Declaration of Christopher Bouton (Doc. No. 34-4). Starting with the CBHA litigation anti-access advocates have drummed the same list of site-specific maintenance issues, but these “cannot be attributed directly to motorcycle use but rather are the result of a combination of various environmental factors and historical uses, compounded by the need for general trail maintenance.” Id. at ¶ 8. Maintenance is a component of proper trail management , not an indictment of motorcycle or any use. In the RWD regular maintenance is “done to respond and facilitate motorized and non-motorized uses. This annual maintenance includes the removal of tree deadfall (known as blowdowns); the cleaning or reconstruction of drainage features (such as waterbars, rolling dips, ditches, culverts, etc.); and the signing of trails. Such actions are needed on a recurring basis on motorized , non-motorized , and wilderness trails.” CBHA Declaration of Penelope K. Wu (Doc. No. 34-5) at ¶ 5. For example, agency personnel have noted similar maintenance issues on the Cross Mountain, Sharkstooth and Rio Lado trails, which receive no motorized use. Bouton Deel. (Doc. No. 34-4) at ¶ 9.

Consistent with these general observations, agency personnel have specifically and repeatedly rebutted the maintenance concerns on RWD trails that nonmotorized advocates claim should justify motorized use restrictions. Where anti-access declarants have offered facts, they are regularly overstate their case, or are simply wrong. See, e.g., Wu Deel. (Doc. No. 34-5) at ¶ 14 (Mr. Marion claims “cupping” of trail 2 feet below surrounding soil, actually measured at 1 foot; trail allegedly 10 feet wide was measured to be 3 feet). More importantly, the conditions on the RWD trails attributed by anti-access advocates to motorcycle use are really caused by other factors, such as trail location/design or natural features. Id.

The discussion in the DEIS echoes these observations. See, generally, DEIS at 187-194. Again, it is not necessarily the type of use but “the amount of trail use, the soils in which the trail is located, trail grades, and alignment [which] are the primary factors in determining how much routine maintenance a particular trail needs.” DEIS at 189. All of the action alternatives are projected to require less maintenance that the No Action Alternative A, i.e., the status quo.

The RWD trails that will continue to receive motorized use under any conceivable outcome to this project have existed in a sustainable status for decades. Having cogently rebutted anti-access cries about impossible maintenance requirements, the agency should not now change face and claim that maintenance needs justify motorized use restrictions.

2. Lack of Semiprimitive Nonmotorized Recreation Trail Experiences.

The project is apparently driven in some part by the concern that “nonmotorized recreation experiences were not fully considered in the proposed action” including access to the project area in the absence of vehicle sound and/or a zero probability of encounters with members of the public accessing the public National Forest System on vehicles. DEIS at 21. To state these concerns for a project in the San Juan Forest and State of Colorado should reveal their stupidity.

There are abundant opporturut1es for semiprimitive nonmotorized recreation trail experiences, both in and beyond the project area. It is perfectly legitimate for some users to prefer an exclusively nonmotorized experience. Thousands of them do so every day in Colorado, by gaining basic knowledge about management guidance and tailoring their chosen activity/experience to a suitable site. What is not legitimate is for one class of users to force their desired, and exclusive, form of recreation on the entire population at every site. One cannot reasonably enjoy the amenities of a town, a finished residential home, or a world class “mountain” resort while demanding the Forest Service create a personal wilderness immediately beyond the property boundary. The RWD is little different than the rest of the National Forest System or other human culture, where a few instances of conflict occur within the majority of courteous encounters. See, CBHA Declaration of Penelope K. Wu at ¶ 7. The agency should continue to educate and inform visitors about the nature of the area, management guidance, and proper trail behavior, and decline the predictable cries of a selfish few seeking to exclude others.

The DEIS demonstrates the substantial, and growing, nonmotorized recreation “zones” that exist in and around the project area. Under every action alternative the balance will shift from semiprimitive motorized toward semiprimitive nonmotorized ROS settings. DEIS at 153 (Table 3-35). Some might claim this still reflects a skewed balance toward motorized settings, but this argument would ignore the proximity to the Lizard Head Wilderness and over 40,000 acres of an area free from motorized (or mechanized) transport. See, DEIS at 152 (map). While some may seek to expand primitive and nonmotorized zoning in our National Forest System, such an effort is misplaced in focusing on the multiple-use lands that typify this project area.

Regardless of how shared use versus exclusively nonmotorized recreation allocation should be drawn, the fact is that motorized opportunities continue to decline. Motorized use advocates have exercised patience and restraint through choices like supporting the SJTR Alternative C (modified) proposal. The agency should not reward ignorant or selfish efforts to RWD Travel Management DEIS Comments July 15, 2016 further skew the imbalance, but make appropriate management choices recognizing the multiple use status of the project area.

3. Economic Impacts to Local Communities.

The issue of economic impacts to local communities as presented in the DEIS should militate in favor of maintaining historical recreational access, if not expanding it. DEIS at 173-174. The specific concern presented is whether restrictions on current access will limit visitor traffic to the Town of Rico. These are legitimate concerns, particularly when many local business owners note that motorized recreationists are an essential component of their customer base. It may well be that the economic development associated with Dunton Hot Springs could benefit from exclusively nonmotorized access, but this is hardly a legitimate factor to apply in deciding how to manage public lands for the benefit of public recreationists. The Forest Service should not be allocating public recreation opportunities for the benefit of a handful of property owners or special use permittees. Relatedly, trumped up concerns about reduced hunting revenue due to continuing motorized access are ludicrous. There is an ample reserve of resident and non-resident hunters in the pool seeking elk tags in the project area. If anyone is seeking a remote wilderness elk hunt along the RWD trails they have not done an acceptable amount of homework and/or lack the motivation or skills required to match their targeted experience.

Proper evaluation of local economic issues calls for continuation of historical access, not further restrictions.

4. Impacts to Livestock Operations.

The DEIS contains a discussion about possible impacts to livestock herding and motorized travel. DEIS at 132. In candor, in reviewing dozens, if not hundreds, of travel management project files we cannot recall this being identified as a concern, let alone a basis for reducing public access.

C. The Agency Lacks a Defensible Record of Social Conflict.

The list of weak or otherwise unheard of “environmental” justifications for change lead us to conclude that the project’s restrictions boil down to an exercise in social engineering. Again, we implore the agency to rethink whether it should rely on this rationale to alter long existing uses.

There are few, if any, instances where disgruntled “quiet recreation” advocates have successfully used “social conflict” to overturn an agency’s allocation of motorized/nonmotorized recreation opportunity. Courts have regularly rejected preservationist attacks based on “user conflict.” WildEarth Guardians v. Montana Snowmobile Ass ‘n, 790 F.3d 920, 928-929 (9th Cir. 2015) (finding USFS violated NEPA but acknowledging “the Forest Service aimed to balance recreational uses” and affirming the chosen balance); Biodiversity Conservation Alliance v. US. Forest Service , 765 F.3d 1264, 1275 (10th Cir. 2014); Hells Canyon Alliance v. US. Forest Service, 227 F.3d 1170, 1178-1179 (9th Cir. 2000); Wild Wilderness v. Allen, 12 F.Supp.3d 1309, RWD Travel Management DEIS Comments July 15, 2016 1330 (D. Or. 2014); Pryors Coalition v. Weldon, 803 F.Supp.2d 1184 (D.Mont. 2011, aff’d, 551 Fed.Appx. 426 (91 Cir. 2014); Riverhawks v. Zepeda, 228 F.Supp.2d 1173, 1184 (D. Or. 2002) (“it is the agency’s role-not the court’s-to balance competing recreational uses”).

There are cases which have focused on the motorized/nonmotorized balance forged by the agency, ie where special interests from either or both camps have challenged the “science” or other rationale behind the agency’s decision. Specifically, the above-cited Wild Wilderness, Riverhawks and Hells Canyon Alliance cases all involved agency decisions, including restrictions of motorized access, that were based on analysis of “conflict” and other aspects of visitor experience. However, each of those decisions relied on meaningful analysis, including social psychological studies in the specific project area. See, e.g., Hells Canyon Alliance, 227 F.3d at 1184 (finding that “attack on scientific underpinnings of the FEIS raises reasonable questions” but ultimately concluding the “true quarrel is with the sufficiency of the methodology used”). In contrast, nothing resembling these analytical tools is presented in the DEIS, and the project’s “best available science” boils down to a general literature review, undocumented discussions with “staff ‘ from state/county personnel, and “expert opinions” of ID Team members. DEIS at 58. Unlike Hells Canyon Alliance, the Forest Service does not have “methodology” for analyzing conflict, other than to ubiquitously say that it exists. The DEIS does not remotely approach the quantum of evidence outlined in the caselaw, and cannot form a plausible rationale for significant restrictions of motorized access.

Again, a finding in the project favoring increased allocation to nonmotorized recreation will contradict sworn testimony in the CBHA litigation. Agency personnel have properly noted that the agency makes a legitimate effort to educate and inform users, and that the majority of trail users understand the management scheme and have courteous encounters with other trail users. See, CBHA Declaration of Mark W. Stiles (Doc. No. 34-2) at ¶ 24; CBHA Declaration of Penelope K. Wu (Doc. No. 34-5) at ¶ 7. While certain visitors like Bob Marion have testified they dislike motor vehicle noise, “[t]his affect is in the ‘ear of the listener’ in terms of tolerance or acceptance of vehicle noise. Noise can be short term as a motorcycle passes through a particular area. Noise is acceptable in an area managed for multiple uses including motorcycles and is typical of other motorized trails on the San Juan National Forest. I have heard people’s comments expressing concern for noise, and also reports of people enjoying their experience regardless of the motor noise.” Id. at ¶ 8. If the agency wants to start splitting fine hairs on individual user preferences, then it should acknowledge that motorized encounters can actually be preferable for some users. See, CBHA Declaration of Christopher Bouton (Doc. No. 34-4) at ¶ 14 (“While on horseback I prefer to encounter a motorcycle on the trail, as opposed to other trail users such as mountain bikers or backpackers, because the sound of a motorcycle gives the horse rider and the horse advance warning, and this extra time allows the horse rider to take appropriate precautions”).

Nonmotorized special interests present a predictable, but weak, case here for social conflict as a rationale for restricting motorized use. The agency would be wise to avoid disrupting the decades-established balance of recreational opportunity based on alleged social conflict.

D. The Agency Should Decline to Reward the Deceptive Campaign of Notable Special Interests.

We must unfortunately address the recent public relations campaign spearheaded by Attorney Steve Johnson and apparently funded/driven by Dunton Hot Springs Resort. This effort appears to have coincided and/or intensified with the extension of the public comment deadline. In particular, there has been a coordinated release of mass mailings, editorials and appearances in other local media. NEPA is not a voting process and the agency should carefully consider whether it wants to condone this type of behavior. These concerns should be particularly acute here where the core tenets of the campaign are so blatantly incorrect.

The basic themes of the recent public relations campaign include elk management concerns, trail maintenance/closures to address solely motorized uses, improper “opening” of RWD trails to motorcycle use by surreptitious signing leading to dramatic increases in motorized use, all of which have marred the pristine setting, typified by the Bear Creek drainage, where the Dunton property is coincidentally located.

These themes are not intelligently debatable, as the agency itself has demonstrated. As noted above, elk are thriving in the RWD and are beyond management objectives. Maintenance issues, including the recent Calico Trail temporary closure, are not caused by motorized use but by other general and site-specific factors, which occur regularly on nonmotorized trails. CBHA Declaration of Penelope K. Wu (Doc. No. 34-5) at ¶ 5; CBHA Declaration of Christopher Bouton (Doc. No. 34-4) at ¶ 9. The “trails in question have been used by motorcycles in their current location for decades” and have been formally recognized by the agency for motorcycle use since at least 1971. CBHA Declaration of Deborah Kill (Doc. No. 34-3) at ¶¶ 5, 8. The confusion about signing was previously addressed, and apparently arose from efforts in the early 2000 ‘s to improve trail signage and “does not mean that new decisions were made on these trails. Rather, these maintenance actions are consistent with trail decisions made over 30 years ago.” CBHA Wu Deel. (Doc. No. 34-5) at ¶ 4. Against claims of exploding use, “I rarely see motorcycle use while on the 14 trails, and have not noticed a discernible increase in use from 2004 when I began working on the trails here.” CBHA Bouton Deel. (Doc. No. 34-4) at ¶ 11. Finally, the Bear Creek watershed is not a pristine Wilderness, but has a colorful history of multiple use :

During the 1960s-70s high elevation spruce clearcuts and associated road construction occurred within the watershed. The area has not recovered vegetatively from this activity and roads and skid trails through wetlands still cause hydrologic modification. Sheep and cattle grazing occurred historically within the watershed although currently there is no permitted grazing. During the late 1800s/early 1900s hardrock mining took place in the headwaters and the scars are visible to this day. Despite these issues, under the current trail management system, the Bear Creek stream corridor, however, is still intact and provides excellent water quality, riparian vegetation and aquatic habitat.

CBHA Declaration of Janina Vanderbilt (Doc. No. 34-6) at ¶ 9.

Everyone is entitled to an opinion, but the same level of tolerance should not accompany rebroadcast of the same falsehoods. Aside from the CBHA litigation, the anti-access special interests have had full access to the agency files since at least 2010 based on Mr. Marion’s “extensive” Freedom of Information Act request. CBHA Stiles Deel. (Doc. No. 34-2) at ¶ 15. The Forest Service should not encourage this transparent effort to stuff a NEPA ballot box. Fortunately, the conspicuous but publicly rebutted elements of the media campaign should be easily identified. To the extent the agency receives comments fostered by this effort, they should be emphatically rejected.

CONCLUSION

Motorized use advocates have exercised notable wisdom and restraint in supporting Alternative C (modified). The agency should carefully consider whether it wants to condone this approach or the inflexible and self-serving demands of other special interests. The RWD is “not broke” and Alternative C (modified) risks going too far to fix it.

We look forward to continuing in the planning process and achieving an effective outcome for balancing recreational use in the RWD.

Sincerely,
Paul A. Turke

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