Cover Story: Legal Victory Spares Salmon-Challis From Off -Road Vehicle Abuse

The Salmon-Challis National Forest encompasses 4.3 million acres of land in Idaho, and includes large portions of the iconic Frank Church River of No Return Wilderness. Of the forest area not already designated as Wilderness, over 70% is either inventoried roadless or recommended wilderness. Despite the remote nature of the Salmon-Challis, motorized recreation has slowly crept onto the land and eroded the unique values that define this wild Idaho landscape. But if the beginning of this story sounds eerily similar to the stories of other quiet places threatened with rampant motorized use, it ends with an inspiring conclusion, due to the tireless efforts of citizen activists and a much-heralded recent ruling by the District Court of Idaho.

Background: Travel Planning

Responding to unmanaged off-road vehicle use, the Forest Service set out to complete a new forest travel plan, which eventually closed the forest to cross country travel and was also supposed to address the noise, dust and resource damage caused by off-road vehicle abuse. Travel planning officially began on August 3, 2007 when the Forest Supervisor published a Federal Register notice announcing the agency’s proposed action — initiating the “scoping” period called for by National Environmental Policy Act
(NEPA) regulations.

Throughout the travel planning process, Idaho Conservation League (ICL) and The Wilderness Society (TWS) documented widespread abuse from motor vehicle use, including torn-up riparian areas, deep tire ruts, and evidence of ATV violations in protected areas. To bolster their already strong on-the-ground knowledge of the forest, ICL volunteers and staff spent the summer of 2008 surveying numerous roads and trails in areas of high resource concern on all but one ranger district of the Salmon-Challis. ICL
employed a systematic protocol for inventorying roads and trails using photos, global positioning system (“GPS”) waypoints, and written data forms.

All of the information collected, and the accompanying recommendations and basis for them, were provided to the Forest Service during the comment period for the Draft Environmental Impact Statement (DEIS). ICL also met with Forest Service representatives in January 2009 to highlight areas of concern and to discuss the monitoring protocol and damage they discovered. Unfortunately, the Forest Service continually ignored the well-documented damage caused by motorized use to sensitive resources, and issued a Final Environmental Impact Statement (FEIS) and decision on August 24, 2009 that failed to address these documented resource problems. These same concerns over resource damage were raised again when ICL and TWS filed an administrative appeal of the decision on October 30, 2009, which was ultimately denied by the Forest Service.

A Lawsuit of Last Resort

With no other avenue left to make their voices heard, ICL and TWS called on attorneys at Earthjustice to represent them in challenging the Forest Service decision. They filed suit in the District Court of Idaho in January 2010 asking the Court to enforce federal environmental laws that require responsible use and better balance between motorized recreation and other forest values. Just over a year later, on February 4, 2011, a federal magistrate overturned the Forest Service decision on the Salmon-Challis National Forest travel management plan. The decision is a big win for both protecting resources on the Salmon-Challis from off-road vehicle abuse, and for all those advocating for responsible Forest Service travel management decisions.

While this decision is only binding on the Salmon-Challis with regards to its travel plan, it provides a clear mandate that the Forest Service must not only protect public lands from off-road vehicle abuse, but also show how they’ve done it.

Travel Management Rule and ORV Executive Order: Minimum is Maximum

Perhaps the most exciting aspect of the Court’s ruling deals with the “minimization criteria” from the off-road vehicle Executive Orders (EOs) signed by Presidents Nixon and Carter. The Court ordered the Forest Service to show how their decision actually minimized impacts from off-road vehicle designations, as opposed to simply showing that the forest had considered minimizing impacts on watersheds, soil, vegetation, wildlife, recreational users.

Indeed, the case record reflected that the Forest Service had considered the EO minimization criteria, but had failed to demonstrate how that information was applied in designating routes. In 2009, a different Court reached a similar conclusion regarding the BLM’s obligations to apply the minimization criteria (See Road-RIPorter Vol. 14.4 for more on that decision). The Salmon-Challis case confirms that the two land management agencies’ obligations to minimize impacts from route designations are the same, notwithstanding variations in wording between the agencies’ regulations.

The Forest Service regulation [or the travel management rule (TMR), at 36 C.F.R. 212.55(b)] states that the agency “shall consider effects ... with the objective of minimizing.” On the other hand, the Executive Executive Order (EO) on which this particular part of the rule is based, as well as the current BLM regulations and the pre-2005 Forest Service regulations, clearly require that, “areas and trails shall be located to minimize damage...”

The Court soundly rejected the government’s argument that the Forest Service travel management rule only required the agency to consider impacts. Though deference is warranted to the Forest Service’s interpretation of its own regulations, when that interpretation is unreasonable, the Court cannot give it deference.

Therefore, in all decisions dealing with off-road vehicle use on trails and areas, the Forest Service, at least on the Salmon-Challis at this point in time, must not only consider the “minimization” criteria set out in the TMR, but must also document in the record how they applied the criteria in their designations. Otherwise, the designations are invalid.

Minimum Road System/Subpart A of the Travel Management Regulation

Another exciting element of the ruling is the Judge’s decision to revoke the minimum road system determination that was made by the Salmon-Challis literally at the last hour and noticed to the public for the first time in the Record of Decision (ROD) for the travel plan. The administrative record did not contain the requisite science-based analysis, and the agency did not inform the public that it was identifying, let alone designating, the minimum road system until the ROD’s release.

Here, the government took the position in litigation that the Salmon-Challis had not identified or implemented a minimum road system through its TMP, even though the ROD clearly stated that such a determination was being made. The Court disagreed, stating that “in the byzantine world of federal environmental and administrative law, such an assurance is of little currency, particularly when measured against the express tatement in the ROD to the contrary.” The Judge therefore agreed with ICL and TWS that minimum road system determinations, when incorporated into NEPA documents, must be subjected to public input and must show how that decision has been made.

In summary, the Forest Service may not insert statements in its NEPA documents indicating that it has completed the requirements of Subpart A without actually completing the  required steps and providing the public notice that it was doing so.

National Environmental Policy Act Violations and Other Claims

The Court ruled that the Forest Service failed to address the extensive evidence submitted by ICL and TWS documenting substantial resource damage from off-road vehicle use. Some 400 miles of motorized routes were surveyed by these groups and documentation has submitted of former hiking trails and meadows reduced to muddy bogs, deep tire ruts, crushed vegetation and significant stream bank erosion.

The Court stated (p. 40):

The Forest Service cannot meet its obligations under the 2005 Travel Management Rule or NEPA without some explanation of how it considered Plaintiffs’ site-specific evidence of what appear to be significant environmental effects occasioned by motorized use.

The Forest Service must demonstrate on the record that it has  considered site-specific evidence of damage done by ORV use that is submitted by the public during comment periods, and it must provide a rational explanation for making decisions in the face of conflicting evidence.

However, the Court did not find the evidence presented was sufficient to show that the Forest Service failed to apply the minimization minimization criteria described above as a matter of law and directed the Forest Service instead to respond to plaintiffs and demonstrate how its decision responded to the surveys. The Court would not put itself in the place of the Forest Service and apply the substantive minimization criteria of the Executive Orders. That is the responsibility of the agency.

The Court also found that the Forest Service violated NEPA because the record did not support the agency’s decision to exclude from its cumulative impacts analysis the combined effect of motorized routes less than one-half mile long on the wilderness values and roadless characteristics of the forest’s Recommended Wilderness Areas and Inventoried Roadless Areas.

ICL and TWS also lost three of their claims, including an argument that the agency failed to immediately close trails in the face of significant evidence that a trail was causing  considerable adverse effects, a “range of alternatives” argument, and a broader cumulative impacts argument.

With regard to the failure to close routes where ICL and TWS felt that considerable adverse effects were occurring, the Court stated that it cannot force the Forest Service to take action to close routes because “the agency does not have a discrete, nondiscretionary duty to close trails under 36 C.F.R. § 212.52(b).” Therefore, the Court found that the Forest Service did not err by not immediately closing certain routes Plaintiffs claimed were causing significant resource damage.

Stayed Tuned for “Return of the Travel Plan”

Because of the Judge’s decision, the Forest Service will have to go back and develop a new travel plan that designates motorized roads and trails in a manner that demonstrates it actually minimized damage and conflicts.

ICL and TWS are in discussions with the Forest Service over the on-the-ground remedy that will be issued by the Court, so it remains to be seen what the final effects are for the Salmon-Challis and its travel plan. But, for the rest of us, this decision should be placed in our everyday collection of cases to be used when commenting on Forest Service travel management plans and projects, and we should be making sure that the Forest Service hears loud and clear that this decision should be applied to all national forests, not just the Salmon-Challis.