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.

A federal case in Washington State gives some guidance on how courts can overturn agency decisions approving such projects when they run afoul of the National Environmental Policy Act (NEPA). However, another case demonstrates that it is easier to defend a good agency decision than to oppose a bad one in court, so the first effort should be toward persuading the agency to make the correct decision.

Educate the Decision-makers

Get to know the agency personnel who will decide on the proposed ORV project. Make sure the agency's biologist knows about any resident wildlife species that would be adversely affected by the project and/or increased ORV traffic.

In Washington, the State government estimates that there are more than one million hikers, but only 41,000 licensed ORV users. See if your state has similar data, then use it to educate agency decision-makers on ORV projects. Help them understand the demand for NON-motorized recreation, and the size of the NON-motorized constituency. They already hear from the well-organized ORV industry lobby, and we need to counteract that lobbying.

Build a Record

Whether the decision-making is part of a large process like a Forest Plan, or a site-specific project, get your written objections into the agency's administrative record. Letters in the record can be crucial in court, both to support good decisions and to overturn bad ones. Grassroots organizing is important to alert the area's constituency about the need for them to submit comments, and what issues to cover. Local advocates can provide evidence by documenting on-the-ground conditions, identifying wildlife, or taking pictures.

Defend a Good Decision

In Northwest Motorcycle Association v. USDA, 18 F.3d 1468 (9th Cir. 1994), the Wenatchee Forest Plan closed the North Entiat to motorized use and the Northwest Motorcycle Association sued the Forest Service. Several nonmotorized groupsWashington Trails Association, The Mountaineers, Washington Wilderness Coalition and North Cascades Conservation Councilintervened in the lawsuit to support the FS's decision. The government appeared likely to defend the case on the narrow grounds that its conduct was not an abuse of discretion, but the intervenors raised defenses that helped win the case. For example, the intervenors cited the many comment letters in the record demonstrating user conflict, which the court agreed was a basis for closing the trails to ORVs under Executive Orders 11644 and 11989 (see RIPorter, 2.4). This demonstrates the importance of submitting written comments documenting site-specific problems.

The Northwest Motorcycle case also held that banning ORVs from a roadless area adjacent to Wilderness does not violate the "buffer zone" clause of the 1984 Washington Wilderness Act. This aspect of the case may be relevant in other states, since Congress used similar "buffer zone" language in other state-wide Wilderness laws.

Oppose a Bad Decision

In Washington Trails Association v. U.S. Forest Service, 935 F. Supp. 1117 (W.D. Wash. 1996), the agency approved an ORV trail project on Langille and Juniper Ridges, in an unprotected roadless area called Dark Divide. A coalition of 12 nonmotorized groups sued to overturn the FS decision. The court held that the agency violated NEPA by failing to conduct an EIS or EA despite evidence of significant impacts.

The FS had invoked a "categorical exclusion" to avoid preparing an EIS or EA, but the court noted that under its own regulations, the agency could not use a "categorical exclusion" in the presence of "extraordinary circumstances," the which included the presence of inventoried roadless areas.

The Forest Service had failed to consider the cumulative impacts of connected actions including other proposed ORV trails in the area which would all be linked into a large ORV network. The court held that the Langille/Juniper environmental analysis must consider the potential for increased use resulting from the proposed network of ORV trails. This shows the importance of documenting the existence of other projects as well as how they connect to the main project.

The court also noted that the FS had failed to explain how it calculated its estimate that the project would cause ORV use to increase 20% over a 10-year period. The coalition prompted this by supplying the court with data from ORV projects in California where the increase was much higher.

The court criticized the FS for relying on the prior Forest Plan to support the ORV project, since the Plan was a programmatic document that promised a site-specific examination in the future. The court said, "It is hardly fair to ward off objections to a proposed project by assuring future consideration, and then decline to revisit the issue later on the grounds that it has already been decided." (935 F. Supp. at 1124.)

The plaintiff coalition also cited documents where government biologists recommended excluding ORVs from mountain goat habitat such as ridges, and even a Forest Plan provision banning ORVs from mountain goat summer range. The court directed the FS to consider these issues under NEPA. This demonstrates the importance of having documentation in the administrative record regarding the presence of certain wildlife species, as well as the opinions of professional biologists regarding ORV impacts upon those species.

In the lawsuit, the coalition also contended that the FS violated the Executive Orders requiring monitoring of ORVs and minimizing user conflict, but given the ruling on the NEPA claim, the court concluded it did not need to reach the coalition's other claims. Nonetheless, one should raise claims under the Executive Orders (including claims of resource damage) whenever the facts support them. After all, NEPA provides only a procedural remedy, not a substantive one.

-- Karl Forsgaard is an attorney in Mercer Island, Washington, who was lead counsel for the non-motorized coalitions in the North Entiat and Juniper Ridge lawsuits.