Inroads into Off-Road Vehicle Management: A Hells Canyon Case Study
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The cultural explosion and growing impacts of motorized recreation, namely al- terrain vehicles (ATVs), has a way of attracting strange bedfellows.
Last year I received a phone call from a rancher wondering what could be done about ATV riders who persistently cut his livestock fences, presenting him with free-roaming stock and associated trespass and liability issues. Traditional hunters often condemn and increasingly report motorized users who hunt in conflict with fair chase ethics and in violation of posted non-motorized rules. Horse and other pack animal riders, not to mention hikers, are yet another segment of the American public expressing growing frustration over those whose saddle sits atop a Kawasaki engine.
With much of America's public land base already in need of restoration, and the growing loss of habitat to invasive weeds, fragmentation, development, and other pressures, our country's ongoing motorized recreation explosion rightly causes one to wonder just how much the concept of multiple-use can and should be stretched to accommodate a land use that presents such a high level of conflict and impact. In the majestically wild Hells Canyon country, which carves the border between northeast Oregon and Idaho, the conflict over ATVs has come to a head. For a host of reasons, the Hells Canyon area will continue to drive rather than merely respond to changes in ATV management. A recent court decision sheds light.
Case Background
The Kirkwood area of Hells Canyon sits within the Hells Canyon National Recreation Area (HCNRA) and is home to an array of historic and natural treasures. Archeological remnants of the Nez Perce Tribe's ancestors persist above and below the ground. The former Kirkwood Ranch house and associated outbuildings along the Snake River have been preserved to mark the area's pioneer-era sheep ranching legacy. And despite invasive weeds also tied to this ranching legacy, the Kirkwood area is home to some of the best remaining, yet highly threatened native grassland habitat in the Columbia basin. Idaho fescue and Blue-bunch wheatgrass wave to the wind amidst a variety of rare forbs, several of which exist only in the Hells Canyon area or are federally listed as endangered.
Before the Kirkwood Ranch entered federal ownership and Forest Service management in the 1970's, its last owner bladed a road from the Snake River to the Hells Canyon rim hovering six miles above ("the Kirkwood Road"). Constructed in a gulch bottom on steep slopes and unstable soils prone to washout, the Road effectively replaced a stable, historic mid-slope pack trail that had provided human access to the area for well over a half century. The Road's two wheel tracks are now a main artery of recreational ATV use.
As ATV use grew in the Kirkwood area, groups like the Hells Canyon Preservation Council (HCPC) and The Wilderness Society (TWS) grew more and more alarmed. Kirkwood's invasive noxious weed populations exploded along with increasing ATV use. Especially problematic is the persistence of ATV riders in illegally blazing tracks into the adjacent native grasslands, trampling rare plants along the way, disturbing soils, and spreading weed seeds. Efforts to construct signs and fences preventing this renegade behavior have proven ineffective, with fences being cut and signs torn down, driven over, or driven around. The area's rare and sensitive native habitat continues to be sacrificed to ATV abuse and an associated weed invasion.
In 1998, a series of storms washed out significant portions of the Kirkwood Road, making ATV access extremely difficult. Prior to this event, the Forest Service had not maintained the road but allowed it to re-vegetate consistent with citizen input. After the 1998 washout, however, the agency reversed course and reversed progress. In the name of constructing the now satirically dubbed "Trojan Toilet" at Kirkwood Ranch, but also for the stated benefit of assisting motorized use, the Forest Service authorized the Kirkwood Road's reconstruction in 2000. The end result was a smooth route that facilitated ATV travel and the associated replacement of rare native grassland habitat with invasive noxious weeds.
The Lawsuit
HCPC and TWS subsequently filed suit in federal court challenging the Forest Service's year 2000 road work and the agency's overall management of the Kirkwood area under the Hells Canyon National Recreation Area Act (HCNRA Act), the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA). [Hells Canyon Preservation Council v. U.S. Forest Service, No. 02-291-HU (D. Or. Nov. 21, 2003).]
The HCNRA Act requires human uses, including motorized recreation, to be compatible with resource protection, including the preservation of rare and endemic plants. The Act also requires the Forest Service to preserve and restore the history of Hells Canyon and the American West. The NFMA requires compliance with applicable forest plans, which in this case requires the Forest Service to enhance native vegetation in the Kirkwood area and emphasize prevention in its approach to invasive noxious weeds.
On November 21, 2003, the Federal District Court of Oregon entered a final decision that the Forest Service's year 2000 reconstruction of the Kirkwood Road violated the HCNRA Act, NFMA, and NEPA. The Court found the road work facilitated ATV travel and in turn the spread of invasive weeds, perpetuating the loss of rare native plant habitat contrary to the HCNRA Act and the NFMA. It also determined the agency's noxious weed spraying failed to demonstrate compliance with the Forest Plan's prevention-first direction.
In addition, the Court recognized that while the area's history did not include ATV recreation, the year 2000 road work facilitated ATV recreation. In turn, they determined that the Forest Service failed to demonstrate how its road work met the HCNRA Act's historic preservation and restoration requirement.
Lastly, the Court determined the Forest Service's reliance on a NEPA categorical exclusion (C.E.) for the road work was improper. The agency had expedited the road's reconstruction and minimized public involvement by invoking a C.E. associated with the repair and maintenance of recreation sites (i.e., the toilet work at Kirkwood Ranch). The Forest Service's analysis of the project's impacts focused only on the Trojan Toilet's location at the Ranch and completely ignored the six miles of road and adjacent grasslands actually affected by the connected road reconstruction action. The Court found the C.E. relied upon is not broad enough to excuse significant road work connected to recreation site projects from deeper NEPA analysis.
As a last ditch argument raised for the first time in the government's briefs, the Forest Service attempted to backslide the road work into a different C.E., a category not mentioned in the agency's decision memo. To this, the Court responded that if an agency wishes to invoke an appropriate C.E., it must do so contemporaneous with the action at issue, not after the fact.
In the end, the Court invalidated the agency's approach of trying to separate its Trojan Toilet project from associated road work as a flawed attempt to ignore NEPA's requirement that connected actions with potentially significant impacts be disclosed and analyzed. Where significant effects may arise from an action, the invocation of a C.E. is legally flawed.
A decision on HCPC and TWS's remaining claim as to the Forest Service's overall management of the Kirkwood area awaits the Supreme Court's resolution of Norton v. Southern Utah Wilderness Alliance, relating to the public's ability to challenge an agency's failure to act.
The Implications
The Court's determination that a Forest Service decision facilitating ATV use violates the legal mandates of enhancing native vegetation and historic preservation/restoration are Hells Canyon precedents and clearly significant to this area. As to the decision's extended applicability, one needs to locate legal provisions establishing native plant protection and historic preservation/ restoration duties, which could exist in a statute such as the HCNRA Act or an applicable Forest Plan.
The Court's decision on NEPA grounds has more immediate implications in the broader context. It clarifies the sideboards on the use of certain C.E.'s and the Forest Service's overall NEPA duties when road or ATV use-related projects are at issue. Given the expanded use of C.E.'s on the public land horizon, the case offers instructive discussion of when the use of this expedited process is legally proper.
Update
Just before going to press, we learned that the Court has decided one of the two outstanding claims in this case in our favor. The Federal Magistrate's findings will now be reviewed by a District Court/Article III judge before becoming final. Quoting from the opinion:
"Plaintiffs have shown that the Forest Service's refusal to close the Road to motorized recreation constituted an abdication of its responsibility to manage the HCNRA in compliance with the statutory mandate to preserve rare and endemic plant species and rare combinations of outstanding and diverse ecosystems, as well as a failure to adhere to the CMP's requirement that the Road be closed when necessary to prevent resource damage."
- Brett Brownscombe is an environmental attorney and the conservation director of Hells Canyon Preservation Council in La Grande, Oregon. For more information about this case, contact brett@hellscanyon.org or visit www.hellscanyon.org
Last year I received a phone call from a rancher wondering what could be done about ATV riders who persistently cut his livestock fences, presenting him with free-roaming stock and associated trespass and liability issues. Traditional hunters often condemn and increasingly report motorized users who hunt in conflict with fair chase ethics and in violation of posted non-motorized rules. Horse and other pack animal riders, not to mention hikers, are yet another segment of the American public expressing growing frustration over those whose saddle sits atop a Kawasaki engine.
With much of America's public land base already in need of restoration, and the growing loss of habitat to invasive weeds, fragmentation, development, and other pressures, our country's ongoing motorized recreation explosion rightly causes one to wonder just how much the concept of multiple-use can and should be stretched to accommodate a land use that presents such a high level of conflict and impact. In the majestically wild Hells Canyon country, which carves the border between northeast Oregon and Idaho, the conflict over ATVs has come to a head. For a host of reasons, the Hells Canyon area will continue to drive rather than merely respond to changes in ATV management. A recent court decision sheds light.
Case Background
The Kirkwood area of Hells Canyon sits within the Hells Canyon National Recreation Area (HCNRA) and is home to an array of historic and natural treasures. Archeological remnants of the Nez Perce Tribe's ancestors persist above and below the ground. The former Kirkwood Ranch house and associated outbuildings along the Snake River have been preserved to mark the area's pioneer-era sheep ranching legacy. And despite invasive weeds also tied to this ranching legacy, the Kirkwood area is home to some of the best remaining, yet highly threatened native grassland habitat in the Columbia basin. Idaho fescue and Blue-bunch wheatgrass wave to the wind amidst a variety of rare forbs, several of which exist only in the Hells Canyon area or are federally listed as endangered.
Before the Kirkwood Ranch entered federal ownership and Forest Service management in the 1970's, its last owner bladed a road from the Snake River to the Hells Canyon rim hovering six miles above ("the Kirkwood Road"). Constructed in a gulch bottom on steep slopes and unstable soils prone to washout, the Road effectively replaced a stable, historic mid-slope pack trail that had provided human access to the area for well over a half century. The Road's two wheel tracks are now a main artery of recreational ATV use.
As ATV use grew in the Kirkwood area, groups like the Hells Canyon Preservation Council (HCPC) and The Wilderness Society (TWS) grew more and more alarmed. Kirkwood's invasive noxious weed populations exploded along with increasing ATV use. Especially problematic is the persistence of ATV riders in illegally blazing tracks into the adjacent native grasslands, trampling rare plants along the way, disturbing soils, and spreading weed seeds. Efforts to construct signs and fences preventing this renegade behavior have proven ineffective, with fences being cut and signs torn down, driven over, or driven around. The area's rare and sensitive native habitat continues to be sacrificed to ATV abuse and an associated weed invasion.
In 1998, a series of storms washed out significant portions of the Kirkwood Road, making ATV access extremely difficult. Prior to this event, the Forest Service had not maintained the road but allowed it to re-vegetate consistent with citizen input. After the 1998 washout, however, the agency reversed course and reversed progress. In the name of constructing the now satirically dubbed "Trojan Toilet" at Kirkwood Ranch, but also for the stated benefit of assisting motorized use, the Forest Service authorized the Kirkwood Road's reconstruction in 2000. The end result was a smooth route that facilitated ATV travel and the associated replacement of rare native grassland habitat with invasive noxious weeds.
The Lawsuit
HCPC and TWS subsequently filed suit in federal court challenging the Forest Service's year 2000 road work and the agency's overall management of the Kirkwood area under the Hells Canyon National Recreation Area Act (HCNRA Act), the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA). [Hells Canyon Preservation Council v. U.S. Forest Service, No. 02-291-HU (D. Or. Nov. 21, 2003).]
The HCNRA Act requires human uses, including motorized recreation, to be compatible with resource protection, including the preservation of rare and endemic plants. The Act also requires the Forest Service to preserve and restore the history of Hells Canyon and the American West. The NFMA requires compliance with applicable forest plans, which in this case requires the Forest Service to enhance native vegetation in the Kirkwood area and emphasize prevention in its approach to invasive noxious weeds.
On November 21, 2003, the Federal District Court of Oregon entered a final decision that the Forest Service's year 2000 reconstruction of the Kirkwood Road violated the HCNRA Act, NFMA, and NEPA. The Court found the road work facilitated ATV travel and in turn the spread of invasive weeds, perpetuating the loss of rare native plant habitat contrary to the HCNRA Act and the NFMA. It also determined the agency's noxious weed spraying failed to demonstrate compliance with the Forest Plan's prevention-first direction.
In addition, the Court recognized that while the area's history did not include ATV recreation, the year 2000 road work facilitated ATV recreation. In turn, they determined that the Forest Service failed to demonstrate how its road work met the HCNRA Act's historic preservation and restoration requirement.
Lastly, the Court determined the Forest Service's reliance on a NEPA categorical exclusion (C.E.) for the road work was improper. The agency had expedited the road's reconstruction and minimized public involvement by invoking a C.E. associated with the repair and maintenance of recreation sites (i.e., the toilet work at Kirkwood Ranch). The Forest Service's analysis of the project's impacts focused only on the Trojan Toilet's location at the Ranch and completely ignored the six miles of road and adjacent grasslands actually affected by the connected road reconstruction action. The Court found the C.E. relied upon is not broad enough to excuse significant road work connected to recreation site projects from deeper NEPA analysis.
As a last ditch argument raised for the first time in the government's briefs, the Forest Service attempted to backslide the road work into a different C.E., a category not mentioned in the agency's decision memo. To this, the Court responded that if an agency wishes to invoke an appropriate C.E., it must do so contemporaneous with the action at issue, not after the fact.
In the end, the Court invalidated the agency's approach of trying to separate its Trojan Toilet project from associated road work as a flawed attempt to ignore NEPA's requirement that connected actions with potentially significant impacts be disclosed and analyzed. Where significant effects may arise from an action, the invocation of a C.E. is legally flawed.
A decision on HCPC and TWS's remaining claim as to the Forest Service's overall management of the Kirkwood area awaits the Supreme Court's resolution of Norton v. Southern Utah Wilderness Alliance, relating to the public's ability to challenge an agency's failure to act.
The Implications
The Court's determination that a Forest Service decision facilitating ATV use violates the legal mandates of enhancing native vegetation and historic preservation/restoration are Hells Canyon precedents and clearly significant to this area. As to the decision's extended applicability, one needs to locate legal provisions establishing native plant protection and historic preservation/ restoration duties, which could exist in a statute such as the HCNRA Act or an applicable Forest Plan.
The Court's decision on NEPA grounds has more immediate implications in the broader context. It clarifies the sideboards on the use of certain C.E.'s and the Forest Service's overall NEPA duties when road or ATV use-related projects are at issue. Given the expanded use of C.E.'s on the public land horizon, the case offers instructive discussion of when the use of this expedited process is legally proper.
Update
Just before going to press, we learned that the Court has decided one of the two outstanding claims in this case in our favor. The Federal Magistrate's findings will now be reviewed by a District Court/Article III judge before becoming final. Quoting from the opinion:
"Plaintiffs have shown that the Forest Service's refusal to close the Road to motorized recreation constituted an abdication of its responsibility to manage the HCNRA in compliance with the statutory mandate to preserve rare and endemic plant species and rare combinations of outstanding and diverse ecosystems, as well as a failure to adhere to the CMP's requirement that the Road be closed when necessary to prevent resource damage."
- Brett Brownscombe is an environmental attorney and the conservation director of Hells Canyon Preservation Council in La Grande, Oregon. For more information about this case, contact brett@hellscanyon.org or visit www.hellscanyon.org