By now, many OHVers, federal agents, and other observers of
motorized travel management have likely heard about the most recent federal
court decision in Northern California. This
time the court struck down the Stanislaus NF 2009 motorized travel management
decision. Contrary to enviro spin, the court
largely upheld the decision against the green’s standard boilerplate NEPA
attack. However, the Achilles heel appears to be the agency's failure to
articulate the way in which it applied the "minimization criteria"
first outlined in a 1972 Executive Order signed by President Nixon. This "minimization argument" is the
anti-access weapon du jour and it has become very powerful.
BRC Alert on Stanislaus NF Court Decision (with link to
court decision)
http://www.sharetrails.org/news/2013/01/08/recreation-advocates-react-stanislaus-nf-court-decision
The "minimization criteria" directs federal land
managers addressing motorized access to "consider effects...with the
objective of minimizing" a variety of factors including damage to soil,
watershed, vegetation and other forest resources; harassment of wildlife and
significant disruption of wildlife habitats; conflicts between motor vehicle
and other uses; and conflicts among different classes of motor vehicle
uses. The "minimization
criteria" has been around since 1972 and long received only passing
interest, but were included in the 2005 Forest Service Travel Management
Rule. See, 36 CFR 212.55(b).
The minimization criteria acquired teeth largely through the
decision declaring invalid the Salmon Challis NF travel decision. This decision was issued in 2011, and is
published as Idaho Conservation League v. Guzman, 766 F.Supp.2d 1056 (D.Idaho
2011). In short, that decision rejected
the Forest Service effort to characterize the minimization criteria as
providing broad guidance ("consider with objective of minimizing")
and interpreted the language as requiring the agency to show, in its NEPA
analysis, how it applied the minimization factors in selecting from decision
options for specific routes. There have
been several more decisions that have followed similar reasoning. The decisions to this point have only come
from federal district courts, but several appeals from them are pending before
the 9th Circuit and it is likely the Court of Appeals will hear at least one of
those cases sometime in 2013.
The approaches taken by individual Forest Service units to
minimization (and other issues) vary somewhat, but the bottom line is that
minimization has been addressed in many Forests under a template that is
consistently being found deficient in the eyes of the courts. And there can be a 3 to 5 year time lag
between the time the agency conducts its analysis and completion of judicial
review. So the agency has effectively
been trapped- it took a similar approach to minimization in the post-2005 rash
of travel decisions, and has just recently learned that many of those decisions
were apparently built from a flawed decision-making template. So in a forest like the Stanislaus we have
just learned this week that the analysis completed in 2009 was inadequate, based
largely on the reasoning of a 2011 court decision.
HQ does not feel the latest round of anti-agency
minimization decisions will improve agency analysis or on-the-ground
management. We constantly find ourselves
asking, how much can our society reasonably demand from land managers who spend
years and millions of dollars on decisions that all but universally have to be
redone? Anti-access advocates are driven
by complex forces, but we are confident a true desire to carry out President
Nixon's vision is far down that list.
Instead they are prioritizing the claim(s) that will best serve them in
a never-ending effort to challenge any balance struck by the agency in a system
that rewards them handsomely for producing even a flesh wound in the
effort. But we would be foolish to
ignore the trend. As in all aspects of
agency planning, we need to work with the agencies to ensure that minimization
is properly considered and eliminated as an excuse to second guess agency decisions
necessary to ongoing authorization of motorized access.
As Wilderness advocates in the Stanislaus case argue for the
closure of OHV routes in roadless areas… it is important to remember that in a
previous case… preservationist interests “defended” motorized access to
roadless areas in their strong opposition to the intervention of
access-advocacy interests in California -- Lockyer et al. v. U.S.D.A., Case No.
05-3508 (N.D.Cal.). That case, consolidated with a similar action brought by
private groups led by The Wilderness Society (“TWS”) sought to challenge the
2005 State Petitions Rule. The California Association of 4 Wheel Drive Clubs,
United Four Wheel Drive Associations, American Council of Snowmobile
Associations and BlueRibbon Coalition moved to intervene. The preservationist
plaintiffs opposed, arguing “the interests that the Off-Road Vehicle Groups
assert in motorized recreation in roadless areas are not at stake in this
action.” Plaintiffs’ Opposition to Motion to Intervene (Doc. No. 79) at 7 Case Nos.
05-3508 and 05-4038 (N.D.Cal.)(March 7, 2006) In reaching this conclusion, the
TWS plaintiffs summarized language from the Rule and its associated planning
documents, stating “[i]n sum, even if the Roadless Rule is reinstated by this
Court as plaintiffs request, it will not prohibit a single person’s off-road
vehicle use or close a single off-road vehicle trail as alleged by the Off-Road
Vehicle Groups’ declarants.” Id. at 5. The TWS surreply clarifies and extends
on these conclusions, again saying the “Roadless Rule does not close any
existing vehicular routes (ORV or otherwise) in any National Forest roadless
areas.” Plaintiffs’ Surreply in Opposition to Intervention (Doc. No. 100) at 1,
Case Nos. 05-3508 and 05-4038 (N.D.Cal.)(March 24, 2006) . That document goes
on to address specific routes of concern identified by BlueRibbon declarant Don
Amador and says “[a]s to the two routes Mr. Amador might hypothetically use for
ORV recreation … neither route is more than 50 inches wide, and therefore the
Roadless Rule would not even apply to them.” Id. at 2.
HQ Blog with more "Roadless" Discussion including citation above
http://thegeneralsrecreationden.blogspot.com/2009/08/green-groups-defend-ohv-trails-in.html
Certainly, 2013 will be filled with a number of challenges
for OHV recreation… with the ongoing legal battles being front and center in a
number of venues. Stay tuned, it is
going to get bumpy this year.
Thanks for your support!
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