Archive | November, 2016

 Objections to the Badger Flats Management Project Environmental Assessment

USDA Forest Service
Region 2 Rocky Mountain Region
Attn: Objection Reviewing Officer
40 Simms Street
Golden, CO 80401-4720

RE: Objections to the Badger Flats Management Project Environmental Assessment South Park Ranger District, Pike & San Isabel National Forest October 2016

Dear Objection Reviewing Officer:

The following objections are submitted in regards to the Badger Flats Management Project, Environmental Assessment (EA) on behalf of the Trails Preservation Alliance (“TPA”) and the Colorado Off-Highway Vehicle Coalition (“COHVCO”).   The TPA is a volunteer organization created to be a viable partner to public lands managers, 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 for the sport and takes the necessary action to insure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse trail riding opportunities. COHVCO is a grassroots advocacy organization representing approximately 170,000 registered off-highway vehicle (“OHV”) users in Colorado 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.  The TPA and COHVCO are referred to collectively in this correspondence as “The Organizations.”  The Organizations generally support the Proposed Action Alternative included in the Environmental Assessment (EA), however we present the following objections to the EA prepared for the Badger Flats Management Project.

1. Page 23 of 109, Socioeconomic Impacts: The Organizations applaud consideration of the “Socioeconomic Impacts” of the three alternatives, however, the Organizations disagree that “All of the alternatives considered would have little positive or negative affect on the local economies because it would not result in substantial increases or decrease in revenue spent in the local area, or increases or decreases in population, wages, or employment.”  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.  The Organizations feel this same standard would similarly apply to this EA.  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 TPA and COHVCO submit that without the creation of a comparison between current usage and usage after implementation of the EA would be 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.  In the Proposed Action, it simply states “All of the alternatives considered would have little positive or negative affect on the local economies…”.  The TPA and COHVCO submit 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. The TPA and COHVCO 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.  The importance of economic impacts of recreation within the Badger Flats area was raised in the project’s scoping comments previously submitted by the TPA and COHVCO.  The EA does not address the issue, but rather dismisses any economic impacts. This position is a per se violation of NEPA and the Hughes River decision.

In the past, 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.” [4]

The Organizations would also contend that the total estimated economic contribution from motorized recreation in the Central Colorado region (which includes Park and Teller Counties) during the 2014-2105 season, was well over $318,000,000.00[5].  That Badger Flats is indeed recognized as one of the primary motorized recreational areas within the Central Colorado region.  That any change in available motorized recreational opportunities in the Badger Flats area will indeed result in measurable economic impacts to the region, especially to the counties and communities in close proximity to the Badger Flats area.

2. Page 11 of 109, Proposed Action Alternative: The Organizations question the statement that “There would be a net loss of 1% of existing motorized NFSRs and NFSTs”.  When reviewing Table 2-1, Comparison of Alternatives, (page 13 of 109) and the values of the Total Motorized NFSR & NFST Open to the Public, The Proposed Action Alternative (108.7 mi), proposes a reduction of 9.9 miles over the No Action Alternative (118.6 mi).  The loss of 9.9 miles of routes open to the public represents a loss of over 8% from the No Action Alternative.  We contend that the citing of a 1% loss is either incorrect or a misrepresentation of the values shown in Table 2-1.

3. Pages 86 & 87 of 109, Birds of Conservation Concern: The EA proposes a need to close NFSR 44 (along with NFSRs 44.2C, 44.2B and NFSR 280) on the west side of La Salle Pass due to encroachment to known cliff-nesting raptor nesting locations.  The Organizations would contend that only NFSRs 44.2C, 44.2B and 280 may need consideration for restriction of access.  That NFSR 44 should remain open to public access, or if absolutely necessary that the alignment of NFSR 44 be adjusted slightly or offset in select locations to gain additional separation from possible nesting sites.  The Organizations contend that a substantial portion of the existing centerline of NFSR is already ½ mile or more from the terrain suitable for cliff-nesting raptors.  NFSR 44 is the primary, and often the preferred route, for travel over La Salle Pass.  That NFSR 44 and NFSR 44.2A together provide a loop opportunity, and an opportunity to disperse recreational uses on the west side of La Salle Pass.  Closure of NFSR 44 (the primary route to La Salle Pass) to public access will concentrate all use onto 44.2A (the secondary route to La Salle Pass) completely eliminating the unique experiences to travel through the center and northern portions of the open meadow landscape and will create a situation that will be difficult to enforce.  Additionally, NFSR 44.2A is the more difficult route and includes rock obstacles that some users may not desire to traverse.  The Organizations ask that NFSR 44 remain open to public, motorized, multiple use access.

4. The EA failed to include any consideration for an “Open Area” specifically for motorized trials bike riding (AKA Moto Trials). Historically the Rocky Mountain Trials Association (RMTA) has worked with the South Park Ranger District to obtain land use permits for observed moto trials riding in the Thorp Gulch and other areas.  During the scoping process, multiple public comments were submitted requesting a designated open area for the purpose of moto trials riding so enthusiasts could use/practice/ride in a designated area at any time.  The EA failed to include any consideration of an open moto trails riding area in the vicinity of Thorpe Gulch or anywhere else with the Badger Flats Management Project Area.  It should be noted that per the American Motorcyclist Association, moto trials riding produces almost no noticeable environmental impact. This is due to the extremely slow speeds, lack of intentional wheel spin, low-air-pressure tires, soft compound tires, extremely quiet exhausts and the increasing use of electric powered trials bikes.  The Organizations appeal that the South Park Ranger District confer with the RMTA and that the EA be revised to include a suitable designated area specifically for open moto trials riding (i.e., without a special use or other permit and open for use year round).

5. Proposed Action Alternative Map: The EA proposes to decommission NFSR 214.B, a connecting segment that the Organization’s previously submitted scoping comments specifically requested remain open to public use.  The EA provides no justification for the decommissioning of NFSR 214.B.  NFSR 214.B provides a direct connection between two proposed designated dispersed camping areas, and failure to keep access open on NFSR 214.B results in a dead-end, no direct connection between the two proposed designated dispersed camping areas and completely eliminates a popular looped recreational opportunity.   The Organizations ask that NFSR 214.B remain open to public, motorized, multiple use access.

6. Proposed Action Alternative Map: The EA proposes to decommission NFSR 255.  The Organizations ask that the decommissioning of NFSR 255 be reconsidered and that NFSR 255 remains open to public, motorized, multiple use access.  This route provides an east to west connection between Park County Road 31 and NFSR 225.  This route also provides additional variety for the Badger Flats Area north of Round Mountain Campground and provides a moderate level of challenge for those users that desire that experience.  The Organizations would support conversion of NFSR 255 to a Full Size Trail.  We would also ask that consideration be given to a route parallel to Park County Road 31, on the eastern side of Park County Road 31 to connect NFSR 255 and NFSR 216 to provide connectivity of these two routes for unlicensed vehicles.  By keeping NFSR 255 open and adding the proposed parallel connection, together these routes will provide an enhanced loop opportunity and additional recreational options.

7. Proposed Action Alternative Map: The Organizations generally support the construction of the proposed two Staging/Day-Use areas and the one Day-Use Parking area.  We would hope and assume that each of these areas will include informational kiosks that would display area maps along with appropriate rules and regulations for all users.

8. In summary, the Organizations generally support the Proposed Action Alternative, with consideration and inclusion of the comments/objections provided above. The Organizations support the Forest Service in proposing a network/system of sustainable multi-use roads and trails that strive to improve the motorized recreational experience, facilitate loop opportunities and avoid areas of sensitive resource concerns.  We support the conversion of select segments of “non-system roads and trails” to Forest “System”, motorized roads and trails.  We support the conversion of NFSRs to NFSTs and certainly support the construction of new NFSRs and NFSTs as necessary (e.g., the proposed new NFST in the China Wall area).  Finally, we also support and recognize the need to realign select segments of roads and trails to address erosion and reduce the movement of sediment into sensitive streams and wetlands.

9. The Organizations would welcome a discussion of these objections at your convenience. Our point of contact for this project will be William Alspach, P.E. at 675 Pembrook Dr., Woodland Park, CO, cell 719-660-1259, e-mail: williamalspach@gmail.com.

Sincerely,
Don Riggle
Director of Operations
Trails Preservation Alliance

cc Scott Jones, COHVCO
Josh Voorhis, District Ranger, South Park District Ranger

[1] Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 F3d 437 at pg. 442; 42 ERC 1594, 26 Envtl. L. Rep 21276.

[2] Hughes River Supra note 1 at pg. 447

[3] Hughes River Supra note 1 at pg. 447

[4] 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

[5] DRAFT Economic Contribution of Off-Highway Vehicle Recreation in Colorado, July 2016

 National Park Service Director’s Order #100 Project #65454

National Park Service
Submitted electronically @
http://parkplanning.nps.gov/DO100

Re: National Park Service Director’s Order #100 Project #65454

Dear Sirs:

Please accept this correspondence as the concerns relating to the proposed National Park Service (NPS) Director’s Order #100 (“DO#100”) submitted on behalf of ORBA, CSA, TPA and COHVCO.  We start first with a brief description of each Organization.

The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization of 150,000 registered OHV users in Colorado 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.

The Trail Preservation Alliance (“TPA”) is a Colorado based 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 is an advocate of the sport and takes necessary actions to help insure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands.

The Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. There are 30,000 registered snowmobiles in the State of Colorado.  CSA seeks to advance, promote and preserve the sport of snowmobiling in Colorado by working with Federal and state land management agencies and local, state and federal legislators.

The Off-Road Business Association (ORBA) is a national not-for-profit trade association of motorized off-road related businesses formed to promote and preserve off-road recreation in an environmentally responsible manner based in California. For purposes of this document ORBA, CSA, COHVCO and TPA are identified as “the Organizations”.

Request for Extended Public Comment Period

The Organizations respectfully request that the comment period for the DO#100 proposal be extended as many interested parties are not aware of the proposal since general public outreach has been very limited.  Additionally, the Organizations request that public meetings be conducted at strategic locations throughout the country to allow for more meaningful interaction with the public on the DO#100 proposal and to stimulate public understanding and partnerships to resolve site specific issues that a particular park or area might be facing. The Organizations have found that the addition of public meetings is highly effective in engaging the public and developing meaningful substantive comments, which result in a superior final rule at the end of the rule making process.

Director’s Order #100 will impair established factors to be balanced in National Park Service managed areas

The Organizations must express serious concern about the elevation of a single portion, resource protection, of the various interests that are to be balanced in the NPS’ mission above other historical usages, which the Organizations submit DO#100 clearly does. While resource protection is clearly an important factor to be balanced in the management of NPS lands, it must be balanced with other factors in order to achieve the mission of the NPS. The Organizations are aware that resource protection has often been weighted too heavily in traditional park areas where a more diverse range of uses is to be protected, such as the Canyonlands NP, where dispersed trail usage is a characteristic to be protected and preserved in the foundational documents. The Organizations submit that recent efforts on permitting of only certain trail usages for the Canyonlands NP have eroded one of the foundational principals to be protected and preserved under a traditional NP model of management.  These concerns are more extensive if DO#100 were enacted.

While our concerns are serious even under the more traditional NPS management model, such as Yellowstone NP, Rocky Mountain NP, the Organizations concerns are expanded when DO#100 is applied to areas that are managed under a less traditional park service model, such as the many National Conservation Areas, National Monuments and National Recreation areas. Many of these Congressionally-designated areas have foundational documents that are significantly wider in scope and balance a different set of interests than those that are present under general NPS authority. While the goals and objectives of some monuments, such as the Florissant Fossil Beds National Monument, might align reasonably well with an elevated protection of resources, other units’ mission will almost immediately experience conflicts.  For example, this would be exemplified in the Lake Mead NRA, where providing diverse water based recreational opportunities along with a management objective to be the Premier Inland Water Recreation Area in the West are specifically identified as goals.[1]   The Organizations are unable to reconcile the clearly stated goal of the Lake Mead NRA with an elevated level of protection of resources.  The Organizations vigorously assert that elevating resource protection above other priorities will result in same erosion of opportunities we are seeing with the management of the Canyonlands NP.  This is simply unacceptable to the Organizations.

The Organizations look forward to participating in further meetings on this issue and welcome the discussion as it moves forward. Please feel free to contact Scott Jones, Esq at 508 Ashford Drive, Longmont CO 80504 or via email at scott.jones46@yahoo.com or via telephone at 518-281-5810.
Respectfully Submitted,

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

Fred Wiley
ORBA CEO & Executive Director

Don Riggle
Director of Operations
Trail Preservation Alliance

[1] See, Lake Mead NRA Business Plan- Executive Summary – December 1999 at pg  4.

 Dispersed Camping closures on Tincup pass and in Irwin area

Gunnison Ranger District,
Attn: Dispersed Camping Comments
216 N. Colorado St.,
Gunnison, CO 81230

RE: Dispersed Camping closures on Tincup pass and in Irwin area

Dear Sirs:

Please accept these comments as the comments of the above Organizations expressing vigorous opposition to the proposed closure of large portions of the Tincup Pass and Irwin areas of the Gunnison Ranger District to dispersed camping opportunities (Hereinafter referred to as “the Proposal”). The Organizations are vigorously opposed to the blanket closures of these areas to dispersed camping and submit that all options must be explored prior to moving forward with blanket closures, as the Organizations are aware that management by closure may look good for an issue in the short term, it rarely is effective in resolving issues in the long run. Rather it has been the Organizations submit that management by closures often results in negative long term impacts to partnerships between land managers and the recreational user communities.

Prior to addressing the specific concerns with the Proposal, a brief summary of each Organization is needed. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization seeking to represent, assist, educate, and empower the more than 150,000 registered 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.

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. For purposes of this document, Colorado Off-Highway Vehicle Coalition and the Trail Preservation Alliance will be referred to as “the Organizations” in this document.

First, the Organizations submit that dispersed camping opportunities are an important  component of the high quality recreational opportunities that are synonymous with Tin Cup Pass and the Taylor Park area for a wide range of user groups. Many users strongly prefer the dispersed camping opportunities that are provided on USFS lands over the more intensive camping opportunities provided by private camping sites. They simply want to get away from the hustle and bustle of daily life and are willing to use a generator and carry water for their dispersed camping opportunities to avoid more intensive camping experiences where basic services might be provided. Preserving these high quality recreational opportunities must be the first priority in development of a management plan for the area.

Closures of large areas to all camping simply does not provide protection of these highly valued opportunities or resources in the long term.   The closures simply will never stop people seeking to avoid the hustle and bustle of the Front Range every weekend by seeking recreational opportunities on the Urban Interface Forests. Experience has already taught that when an area is closed the recreational users simply move to other areas and they don’t stay home. The Organizations are very concerned that we might be having a similar discussion about closing of areas where dispersed camping has moved to after implementation of the closure in the Proposal.

The Organizations are also very concerned that the immediate loss of these opportunities sends the wrong message to the recreational community who have partnered with land managers for extended periods of time to proactively address a wide range of management issues on the GMUG. The Organizations are aware that this partnership has provided hundreds of thousands of dollars in funding directly to land managers on the GMUG in order to provide basic services to all recreational users under the basis that such a partnership was the most effective manner to avoid management by closure type situations. These types of partnerships are only effective when both sides commit to resolving issues in a collaborative manner and work hard to avoid management by closure. Given that management by closure appears to be the first step in addressing dispersed camping in the Proposal area, the Organizations must express serious concerns about the basic direction of the partnership that has proven so effective in addressing a wide range of issues on the GMUG.

The Badger Flats Project provides a great example of management that still provides high quality sustainable camping opportunities.

The Organizations are aware that the visitation to the Tin Cup and Irwin areas has significantly increased over recent years due to the proximity of the areas to large population centers such as Colorado Springs.  These increased population pressures have impacted the ability to provide unmanaged dispersed camping opportunities in many other locations, such as in the Badger Flats area of the South Park Ranger District.[1]  The Organizations believe that the management direction, mainly site specific analysis and moving to designated dispersed camping sites applied in the Badger Flats area must be explored in the Proposal as it represents a viable alternative to complete closure of these areas. When the issues facing the two areas are compared, the list of management challenges are almost a mirror image of each other.

There can be no argument that the current situation and lack of camping management is creating site specific resource impacts on the Proposal areas. It is also without contest that  extensive opportunities are available in areas where resources are not negatively impacting resources and these areas represent viable resources  designation of camping sites along routes in the Tin Cup Pass area. The Organizations are also aware that many sites could be subject to minimal maintenance and educational efforts for users and public access to the site could be continued. The Organizations submit these opportunities must be fully utilized in the designation of camping sites. The Organizations would note that the Badger Flats proposal has been partially funded with CPW OHV grants in order to inventory the areas and develop a plan that designates sites where resources are not impacted and to provide maintenance of these designated sites moving forward.

Any opportunities that might be lost due to closures of dispersed camping should be replaced with designated sights in the area as there currently is a shortage of camping opportunities in the area.

The Organizations vigorously assert that any camping opportunities that are lost on the Tincup/Irwin areas must be replaced with dispersed camping opportunities within the planning area.  The Organizations are aware that levels of recreation have increased in the Proposal area as a result of its proximity to major population centers. These impacts have been compounded by the complete closures of other locations that had previously provided dispersed camping opportunities to the public in the vicinity of the planning area.  The Organizations submit that such increases on the opportunities provided by sites in the Proposal, as a result of the closures in other locations is proof that the management by closure policy being applied in the Proposal area simply does not work.  The Organizations submit that land managers should develop a plan for sustainable opportunities in the Proposal area rather than push usage to other areas, that are not equipped to provide opportunities, which will result in further resource impacts and the long term closure of the areas where usage is pushed too. This is simply unacceptable to the Organizations because opportunities are lost and resources are impacted.

Educational materials should be developed to mitigate impacts and preserve access.

The Organizations welcome the references in the scoping notice regarding the development of educational materials as part of the Proposal. The Organizations submit that educational materials are simply not being correctly directed under the Proposal. Rather than educate the public regarding lost opportunities, the Organizations submit that educational resources should be directed towards use of designated sites in the area and other areas where designated camping sites can be found. Moving the public to other areas where unmanaged camping opportunities are provided will not provide a long term management solution to the dispersed camping usage. The Organizations vigorously submit that the public wants to do the right thing on public lands and when they are informed of what the right thing is the public will overwhelmingly comply with those educational materials.

Conclusion

The above Organizations are expressing vigorous opposition to the proposed closure of large portions of the Tincup Pass and Irwin areas of the Gunnison Ranger District to dispersed camping opportunities in these comments. The Organizations are vigorously opposed to the blanket closures of these areas to dispersed camping and submit that all options must be explored prior to moving forward with blanket closures, as the Organizations are aware that management by closure may look good for an issue in the short term, it rarely is effective in resolving issues in the long run. Rather it has been the Organizations submit that management by closures often results in negative long term impacts to partnerships between land managers and the recreational user communities. Rather than manage by closure, the Organizations vigorously assert that the management planning exemplified in the Badger Flats area must be explored as an alternative to the current proposal, as the Badger Flats model provides better recreational opportunities and far better resource protections in the long run.

Please feel free to contact Scott Jones at 518-281-5810 or via email at scott.jones46@yahoo.com or traditional mail at 508 Ashford Drive, Longmont CO 80504 if you should wish to discuss these matters further or if you should wish to have further information regarding these concerns.

Sincerely,
Scott Jones, Esq.
COHVCO/TPA Authorized Representative

Don Riggle
Director of Operations
Trails Preservation Alliance

[1] The documentation regarding the Badger Flats proposal are far too extensive to include in these comments but can be accessed at http://www.fs.usda.gov/project/?project=48069

 Objections to the Badger Flats Management Project Environmental Assessment

USDA Forest Service
Region 2 Rocky Mountain Region
Attn: Objection Reviewing Officer
40 Simms Street
Golden, CO 80401-4720

RE: Objections to the Badger Flats Management Project Environmental Assessment South Park Ranger District, Pike & San Isabel National Forest October 2016
Dear Objection Reviewing Officer:

The following objections are submitted in regards to the Badger Flats Management Project, Environmental Assessment (EA) on behalf of the Trails Preservation Alliance (“TPA”) and the Colorado Off-Highway Vehicle Coalition (“COHVCO”).   The TPA is a volunteer organization created to be a viable partner to public lands managers, 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 for the sport and takes the necessary action to insure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse trail riding opportunities. COHVCO is a grassroots advocacy organization representing approximately 150,000 registered off-highway vehicle (“OHV”) users in Colorado 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.  The TPA and COHVCO are referred to collectively in this correspondence as “The Organizations.”  The Organizations offer the following objections to the Environmental Assessment prepared for the Badger Flats Management Project.

1. Page 23 of 109, Socioeconomic Impacts: The Organizations disagree that “All of the alternatives considered would have little positive or negative affect on the local economies because it would not result in substantial increases or decrease in revenue spent in the local area, or increases or decreases in population, wages, or employment.”  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 TPA and COHVCO submit that without the creation of a comparison between current usage and usage after implementation of the EA would be 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.  In the Proposed Action, it simply states “All of the alternatives considered would have little positive or negative affect on the local economies…”.  The TPA and COHVCO submit 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. The TPA and COHVCO 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.  The importance of economic impacts of recreation within the Badger Flats area was raised in the project’s scoping comments previously submitted by the TPA and COHVCO.  The EA does not address the issue, but rather dismisses any economic impacts. This position is a per se violation of NEPA and the Hughes River decision.

   In the past, 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.” [4]

2. Pages 86 & 87 of 109, Birds of Conservation Concern: The EA proposes a need to close NFSR 44 (along with NFSRs 44.2C, 44.2B and NFSR 280) on the west side of La Salle Pass due to encroachment to known cliff-nesting raptor nesting locations.  The Organizations would contend that only NFSRs 44.2C, 44.2B and 280 may need consideration for restriction of access.  That NFSR 44 should remain open to public access, or if absolutely necessary that the alignment of NFSR 44 be adjusted slightly or offset in select locations to gain additional separation from possible nesting sites.  The Organizations contend that a substantial portion of the existing centerline of NFSR is already ½ mile or more from the terrain suitable for cliff-nesting raptors.  NFSR 44 is the primary, and often the preferred route, for travel over La-Salle Pass.  That NFSR 44 and NFSR 44.2A together provide a loop opportunity, and an opportunity to disperse recreational uses on the west side of LaSalle Pass.  Closure of NFSR 44 (the primary route to La Salle Pass) to public access will concentrate all use onto 44.2A (the secondary route to La Salle Pass) completely eliminating the unique experiences to travel through the center and northern portions of the open meadow landscape and will create a situation that will be difficult to enforce.  Additionally, NFSR 44.2A is the more difficult route and includes rock obstacles that not all users may desire to traverse.  The Organizations ask that NFSR 44 remain open to public motorized, multiple use access.

3. The EA failed to include any consideration for an open area specifically for motorized trials bike riding (AKA Moto Trials). Historically the Rocky Mountain Trials Association (RMTA) has worked with the South Park Ranger District to obtain land use permits for observed moto trials riding in the Thorp Gulch area.  During the scoping process, multiple public comments were submitted requesting a designated open area for the purpose of moto trials riding so enthusiasts could use/practice/ride in a designated area at any time.  The EA failed to include any consideration of an open moto trails riding area in the vicinity of Thorpe Gulch or anywhere else with the Badger Flats Management Project Area.  It should be noted that per the American Motorcyclist Association, moto trials riding produces almost no noticeable environmental impact. This is due to the extremely slow speeds, lack of intentional wheel spin, low-air-pressure tires, soft compound tires, extremely quiet exhausts and the increasing use of electric powered trials bikes.  The Organizations appeal that the South Park Ranger District confer with the RMTA and that the EA be revised to include a suitable designated area specifically for open (i.e., without a special use or other permit and open for use year round) moto trials riding.

4. Proposed Action Alternative Map: The EA proposes to decommission NFSR 214.B, a connecting segment that the Organization’s previously submitted scoping comments specifically requested be kept open to public use.  The EA provides no justification for the decommissioning of NFSR 214.B.  NFSR 214.B provides a direct connection between two proposed designated dispersed camping areas, and failure to keep access open on NFSR 214.B results in a dead-end, no direct connection between the two proposed designated dispersed camping areas and completely eliminates a popular looped recreational opportunity.   The Organizations ask that NFSR 214.B remain open to motorized, multiple use access.

5. The Organizations would welcome a discussion of these objections at your convenience. Our point of contact for this project will be William Alspach, P.E. at 675 Pembrook Dr., Woodland Park, CO, cell 719-660-1259, e-mail: williamalspach@gmail.com.

Sincerely,
Don Riggle
Director of Operations
Trail Preservation Alliance

cc
Scott Jones, COHVCO
Josh Voorhis, District Ranger, South Park District Ranger

[1] Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 F3d 437 at pg. 442; 42 ERC 1594, 26 Envtl. L. Rep 21276.

[2] Hughes River Supra note 2 at pg.

[3] Hughes River Supra note 2 at pg.

[4] 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