Legal Notes

In May 2007, conservation groups and the U.S. Forest Service settled a lawsuit involving an enjoined motorcycle project in proposed Wilder­ness in Washington State. The settlement and final judgment leaves in place the federal court’s June 2006 published decision and permanent injunction that requires a full Environmental Impact Statement (EIS), not a mere EA, before construction of the full Mad River off-road vehicle (ORV) project [The Mountaineers v. U.S. Forest Service, 445 F. Supp. 2d 1235 (W.D. Wash. 2006)].

More than 700 miles of user-created routes have been closed to motor­ized vehicles on the Eldorado National Forest in California as a result of a lawsuit brought by the Center for Sierra Nevada Conservation, Center for Biological Diversity, and California Wilderness Coalition. The user-created routes will remain closed at least until the Forest Service demonstrates compliance with the National Environmental Policy Act (NEPA), at which point it is possible that some will be opened for legal, authorized use.

Case Background

The cultural explosion and growing impacts of motorized recreation, namely al- terrain vehicles (ATVs), has a way of attracting strange bedfellows.

In a decision that the New York Times heralded as one of the country's two most important environmental victories of the year, a federal district judge in Washington, D.C., ruled in December 2002 that the Bureau of Land Management (BLM) violated the National Environmental Policy (NEPA) when it authorized the Yellow Cat seismic project. Because of this decision, the BLM now will have to complete a proper environmental review before authorizing any additional seismic operations in the project area.

The US Forest Service recently proposed a significant revision to Chapter 30 of the Environmental Policy and Procedures Handbook - the agency’s rules for implementing the National Environmental Policy Act (NEPA) [FSH 1909.15]. The revision, called an interim directive, would allow the agency to utilize a broader application of the categorical exclusion (CE) to avoid preparing an Environmental Assessment (EA) for certain projects. Its most dangerous aspect would permit an agency official to invoke a CE even when extraordinary circumstances are present.

Originating with the 1866 mining law, RS 2477 has become a major headache for federal land management agencies and conservationists alike. In 1976 Congress repealed this outdated statute with passage of the Federal Land Policy and Management Act (FLPMA), however, Congress left open a loophole by recognizing prior and existing rights. Off-Road Vehicle (ORV) enthusiasts are using this loophole and attempting to drive a legion of ORVs through it on “phantom roads.” For background see The RIPorter 2.5.

In an important case with far-reaching implications and a useful precedent for road-rippers, the Klamath Forest Alliance (KFA) recently won their lawsuit challenging ERFO-funded road reconstruction on the Klamath National Forest (KNF). The District Court decision, explained below, is the first major victory for conservationists who have sought to stop ERFO’s blanket exemption of environmental reviews.

Background About ERFO

As the battle over the motorization of public lands continues to escalate, it will be critical that activists continue to develop new and more effective means of addressing inappropriate roads and ORVs. The Clean Water Act (CWA) offers some useful and underused tools for activists. It includes four major provisions that may be helpful: state water quality plan requirements; Total Maximum Daily Load requirements; discharge permit requirements; and dredge and fill requirements.

A. State Water Quality Plans

Road activists involved with litigation know that technicallegal doctrines can determine whether plaintiffs are able to sue a federalagency. For example, courts require a plaintiff to have "standing"before the court will hear their case. In the wake of an environmental setback from a unanimous U.S. Supreme Court decision in OhioForestry Association v. Sierra Club, 1998 WL 244192 (May 18, 1998), activistsalso will have to consider the doctrine of "ripeness" before suing overcertain Forest Service actions.

On some of our public lands, the use of off-road vehicles (ORVs) may be a significant impediment to obtaining permanent protection for the land and its inhabitants. Because the Wilderness Act prohibits motorized recreation in Wilderness, it may be harder to obtain Wilderness status for an unprotected roadless area if the area has been designated or developed as an ORV recreation site, through the construction of ORV trails or other projects.