Humboldt-Toiyabe National Forest

Transcription

1 United States Department of Agriculture Forest Service Humboldt-Toiyabe National Forest 1200 Franklin Way Sparks, NV (775) Fax (775) File Code: # A-215 Date: October 13, 2009 Gene Etcheverry Executive Director Lander County Board of Commissioners 315 South Humboldt Street Battle Mountain, NV Dear Mr. Etcheverry: This is my decision on the appeal you filed on behalf of Lander County, regarding the Austin/Tonopah Combined Travel Management Project Decision Notice and Finding of No Significant Impact signed by Steve Williams, the District Ranger of the Austin and Tonopah Ranger Districts. My review of your appeal was conducted pursuant to, and in accordance with, 36 CFR My review focused on the project documentation and the issues raised in your appeal. I specifically incorporate in this decision the appeal record, the references and citations in the project record transmittal documentation, as well as the Appeal Reviewing Officer (ARO) analysis and recommendation. After considering your issues and the project documentation, the ARO recommends the District Ranger Williams decision be affirmed. A copy of the recommendation is enclosed. Based upon a review of the project documentation provided, I find the issues were adequately considered. I agree with the ARO analysis and conclusions in regard to your appeal issues. I find the District Ranger made a reasoned decision and has complied with all laws, regulations, and policy. After careful consideration of the above factors, I affirm the District Ranger s decision to implement the Austin/Tonopah Combined Travel Management Project. Your requested relief is denied. As I have discussed with you in the past, the National Environmental Policy Act (NEPA) process and the subsequent administrative appeal procedures can take on a legislative tone with all of its adversarial implications. I hope that this process does not irretrievably damage our valuable working relationship and future partnerships. You bring important information and perspectives to our travel management efforts. I believe we share a common goal ensuring a road and trail network that provides public use and enjoyment and protects important environmental values of our National Forests. Caring for the Land and Serving People Printed on Recycled Paper

2 I also want to assure you that Ranger William s current decision involves only the first of many travel management reviews and analysis that will be made over the years on the Austin and Tonopah Districts. I have heard your concerns that we have not, for example, designated sufficient access to traditional dispersed camping sites. I am instructing Ranger Williams and his staff to meet with you and other interested members of the public to gather more information on the location and access to these and other locally significant sites. These routes can then be incorporated into future NEPA analysis and decisions as we are doing on the Carson Ranger District. I can also understand your concerns that this travel management decision may interfere with or preempt the County s ability to pursue RS 2477 rights on various routes. This issue is covered in greater detail in the enclosure to this letter. The bottom line is that Ranger William s decision in no way forecloses the County s right to pursue RS 2477 designation of any routes affected by this decision. All routes for which the County perfects an RS 2477 right would then be exempt from this decision. In conclusion, while my decision constitutes the final administrative determination of the Department of Agriculture (36 CFR (c)), I sincerely hope to continue our important dialogue and partnership in the management of National Forest lands. This constitutes the final administrative determination of the United States Department of Agriculture under 36 CFR (c). Sincerely, /s/ Edward C. Monnig EDWARD C. MONNIG Appeal Deciding Officer Enclosure cc: Edward Monnig Jerry Ingersoll

3 United States Department of Agriculture Forest Service Intermountain Region th Street Ogden, UT File Code: Date: October 13, 2009 Route To: Subject: To: Reviewing Officer Recommendation, Austin and Tonopah Districts Combined Travel Management Project, Lander County, # A-215 Appeal Deciding Officer This is my recommendation on disposition of the appeal filed by Gene Etcheverry, on behalf of Lander County, protesting the Austin and Tonopah Ranger Districts Combined Travel Management Project Decision Notice and Finding of No Significant Impact (DN/FONSI) signed by District Ranger Steve Williams on the Humboldt-Toiyabe National Forest. The District Ranger s decision adjusts the Forest transportation system on the Austin and Tonopah Ranger Districts to meet recreation and administrative needs in an environmentally sustainable fashion. The Austin and Tonopah Ranger Districts will identify those roads and trails designated for motor vehicle use on a motor vehicle use map, restricting motor vehicle use to designated roads and trails in accordance with 36 CFR My review was conducted pursuant to, and in accordance with, 36 CFR to ensure the analysis and decision is in compliance with applicable laws, regulations, policies, and orders. The appeal record, including the appellant s objections and recommended changes, has been thoroughly reviewed. Although I may not have listed each specific issue, I have considered all the issues raised in the appeal and believe they are adequately addressed below. The appellant requests a reversal of the DN. An informal meeting was held but no resolution of the issues was reached. RECOMMENDATION I have reviewed the record for each of the contentions addressed above and have found that the analysis and decision adequately address the issues raised by the appellant. I recommend the District Ranger s decision be affirmed and the appellant s requested relief be denied. /s/ Kimberly Brandel Kimberly Brandel Appeal Reviewing Officer Caring for the Land and Serving People Printed on Recycled Paper

4 Appeal # A-215 Lander County/Etcheverry Austin and Tonopah Ranger Districts Combined Travel Management Plan Humboldt-Toiyabe National Forest APPEAL ISSUE 1: The Decision Notice and Finding of No Significant Impact (DN/FONSI) states in the introduction section the Austin and Tonopah Ranger Districts will identify those roads and trails designated for motor vehicle use on a motor vehicle use map, restricting motor vehicle use to designated roads and trails in accordance with 36 CFR Most reasonable people interpret this to mean the actions to take place by this decision are to be identified within the document and on the published map. RESPONSE: The scoping document, Notice of Proposed Action (NOPA), Environmental Assessment (EA), and DN/FONSI are consistent in describing the proposed action and intent of the project (Scoping document, p. 3; NOPA, p. 2; EA, p 3; DN/FONSI, p. 1). The proposed action and decision are specific to designating which routes on the Districts would be open to motorized vehicles. Maps available with the 2008 scoping document contained all known (inventoried) routes and displayed the proposed action. Forest system roads and trails were displayed differently than user-defined routes and various symbols were used to display open versus closed routes and roads versus trails. The maps that were included with the NOPA only displayed the routes open to motor vehicles on National Forest System (NFS) lands. This was an attempt to minimize clutter and focus attention on the routes being designated. Comments received from the public requested including the undesignated routes to make the maps easier to interpret. In response, the Districts included the routes that are designated as closed on the final set of maps published with the DN/FONSI. The actions to be taken as a result of this decision have been clearly illustrated to the public. APPEAL ISSUE 2: An appeal is essential to include routes used to maintain vested water right diversions points, routes used to access privately owned lands, routes used to access mining claims, routes traditionally used for harvesting pinion nuts and firewood, routes traditionally used for access to hunting, fishing, camping, hiking, wildlife viewing, and cattle gathers. The public and local governing body has provided documentation of the routes missing and necessary to maintain historical use. RESPONSE: The decision only relates to the designation of routes open to the general public for use of motor vehicles. The use of motor vehicles under special authorizations and permits is allowed on routes not open to the general public. 1

5 The Scoping document, EA, and DN included the Code of Federal Regulations (CFR) list of specific exemptions that cover several of the uses listed by the appellant. 36 CFR includes: Aircraft Watercraft. Over-snow vehicles. Limited administrative use by the FS (Forest Service). Use of any fire, military, emergency, or law enforcement vehicle for emergency purposes. Authorized use of any combat or combat-support vehicle for national defense purposes. Law enforcement response to violations of law, including pursuit. Motor vehicle use that is specifically authorized under a written authorization issued under federal law or regulation (e.g., woodcutting permits, term grazing permits, approved plans of operations) (36 CFR (a)). Roads required for access to water rights, private property, gathering forest products, livestock allotments, and mining claims are authorized through special use permits, legal rights of way, or approved plans of operation (36 CFR and 36 CFR a). The record demonstrates a thorough discussion and evaluation of all routes brought forward through public involvement. Rationale was provided for all routes not designated as open and was documented in Response to Comments, Interdisciplinary Team (IDT) meeting notes, spreadsheets, photos, and s. The travel plan decision is intended to be reviewed on an annual basis as errors are found or changes are needed. The District Ranger highlighted this in the DN, recognizing that errors or omissions likely exist within the map data (DN, p. 8). Recreational access was a key issue considered throughout the process of designating motorized routes. The desire to access and participate in historical recreational activities was specifically recognized. The effects of the three alternatives on access for recreational activities were thoroughly discussed in the EA (EA, pp ). The Districts completed a spatial analysis, initially for elk vulnerability, that was then also used to display the accessibility of the Forest for recreation. The proposed designated routes were buffered at 0.5 and 1.0 miles to reflect how much of the forest was reasonably accessible by foot after leaving the road or trail. Approximately 40 percent of the Districts are within 0.5 miles of a designated route (the percent would be higher if the designated wildernesses were not included). Approximately 77 percent of the Districts are within 1.0 mile of system roads and trails (EA, p. 106). The deciding official adequately considered access for historical recreation activities and informed the public that permitted/authorized activities that meet the exceptions to the rule will be allowed, but would not be displayed on the maps as open to the general public. 2

6 APPEAL ISSUE 3: The current decision as it stands cannot be enforced at current FS staffing levels. RESPONSE: The Forest recognizes the difficulty in gaining compliance with the decision (EA, p. 25). Enforcement will occur at the same level as all other federal laws and regulations. The Forest expects that violations will be relatively high for several years as the public becomes more aware of the closed routes. Compliance is expected to increase after this initial educational period. The Forest is committed to actions that will accelerate this transition, including; Developing a motor vehicle use map that clearly displays the designated routes and that complies with national mapping standards. This provides uniformity of trail classification and mapping between Forests across the country. Signs and user education programs will be used to improve compliance. APPEAL ISSUE 4: Lander County prepared the official comments on the proposed action on March 30, These comments, while acknowledged, have never been sufficiently addressed. There have been no meetings between District Ranger Williams and the Lander County commission nor have meetings been held soliciting public comments on the Travel Management Plan in Lander County. The Lander County Policy Plan for Federally Administered Lands, to which the FS is partner, requires such involvement and inclusion of the various governing bodies and the citizens of our county. RESPONSE: The Districts considered and addressed the comments from Lander County and met with the Public Land Use Advisory Committee (PLUAC) (Response to Comments, pp. 8-11; and notes of meetings with PLUAC). The PLUAC and Austin Chamber of Commerce were informed of the NOPA process and comment deadlines. Map copies were made available to the public at the Austin Ranger District office and the Austin courthouse during the comment period. Public notice was provided for an open house style forum on two separate days at the Austin Ranger District for the purpose of public question, answer, and comment (Project Record-Notice of Proposed Action documentation). The Districts have presented in the EA and in Response to Comments document, an accounting of the considerations made of the Lander County Policy Plan for Federally Administered Lands (EA, pp. 6-7; Response to Comments, pp. 8-11). The Districts cited which policy items in this Plan were addressed, followed, and met in the Travel Management planning effort. This record supports adequate opportunity and consideration of public and Lander County concerns about the Combined Travel Management Project process and proposal for the Austin and Tonopah Ranger Districts. 3

7 APPEAL ISSUE 5: Inaccuracy of Maps RESPONSE: The Humboldt-Toiyabe National Forest (HTNF) began the forest-wide Roads Analysis Process (RAP) in Beginning in October 2005 the best available maps from the RAP and the Travel Analysis Process were made available to the public at the district offices and the public was encouraged to review and provide corrections and updates. The Districts received many site and route specific comments from the public based on these maps and used an iterative process to update the maps. The NOPA references the Forest Transportation Atlas and proposed changes to roads. During the comment period, objections were received that the maps did not show all the routes. The maps did show the routes that would be open under the proposed action. The unauthorized routes were not shown on the maps. Review of the maps provided to the public during the scoping process reveal them to be of an acceptable quality and accuracy. The HTNF data was compiled from multiple sources. APPEAL ISSUE 6: The appellants contend that the Districts decision affects uses of roads and trails that the County claims are located within public highway rights-of-way such as those established under R.S The appellants also contend the Districts may not make this decision until it has evaluated all of these right-of-way claims. ISSUE 6A: The Districts decision may affect the ability of the County to pursue its right-of-way claims. ISSUE 6B: Under R.S. 2477, rights-of-way are valid at the time they are established in accordance with federal law and no adjudication or validation procedure is required. By making this decision without evaluating the validity of all rights-of-way claimed by the County, the Districts may unknowingly be imposing restrictions on roads or trails within valid County rightsof-way, which is outside the agency s authority; and ISSUE 6C: The Districts cannot thoroughly evaluate the effects of their decision without determining the validity of the County s right-of-way claims because it cannot know how valid rights-of-way are being affected by the decision. The appellants have expressed concern that this decision may have implications for public highway right-of-way claims on NFS lands, such as those that may be asserted under R.S At the outset, it is important to distinguish between the situation where a claim that an R.S right-of-way exists on federal land has been made, and where it has been demonstrated that a valid right-of-way exists in accordance with federal law. As discussed by the U.S. Court of Appeals for the 10 th Circuit in a recent decision, there is a presumption that on federal land ownership and management authority lies with the federal government1 Kane County v. Salazar, 562 F.3d 1077, 1086 (10th Cir. 2009). A county is not entitled to exercise unilateral management authority based on the mere claim for a right-of-way, but must carry the burden of proof of title in a court of law, or obtain some other recognition of such rights under federal law, Id. For this decision, there is therefore a presumption that Districts designations for motor vehicle use, and prohibitions of motor vehicle use govern on NFS lands, unless or until it is demonstrated that a valid public highway right-of-way exists in accordance with federal law. 4

8 RESPONSE 6A: The purpose of the decision under appeal is to identify which NFS roads and trails and which areas on NFS lands, if any, will be designated for specified motor vehicle use on the Motor Vehicle Use Map (MVUM) for the Austin and Tonopah Ranger Districts (36 CFR (a); ). As a result of making these designations on the MVUM, motor vehicle uses that are not consistent with the designations will be prohibited on NFS lands within these Districts, unless exempted by federal regulation (36 CFR ). The regulations define NFS roads and trails as those roads and trails which the FS determines are within or adjacent to a National Forest and necessary for protection, administration and utilization of the NFS, and which are not authorized by a legally documented right-of-way held by a public road authority (36 CFR 212.1). The decision of the FS to designate, or not to designate, a road or trail for motor vehicle use does not affect the ability to validate any claims under R.S. 2477, or any other claims for public highway rights-of-way on NFS lands. The decision in no way precludes or forecloses the ability of claimants to assert and carry their burden of proof in an appropriate forum for any such claims that they may assert. The MVUM will show NFS roads and trails which have been designated for specified motor vehicle uses in accordance with this decision. As explained in the decision, the MVUM will also depict State and County roads and trails on NFS lands. By definition, roads and trails within legally documented public highway rights of way are not NFS roads and trails, and are not subject to the designation process and prohibitions on motor vehicle use under FS rules. Upon publication of the MVUM, possession or operation of a motor vehicle on NFS lands within the Austin and Tonopah Ranger Districts that is not consistent with the designations of NFS roads and trails will be prohibited, with certain exceptions enumerated under 36 CFR Those exceptions include use of motor vehicles within legally documented public highway rights-ofway, or where the operator holds a written authorization recognized under federal law or regulations. Therefore, under this decision, motor vehicle use will not be prohibited by the FS on roads or trails that are within legally documented public highway rights-of-way, or where authorized by a written instrument recognized under federal law or regulations. While the appellants and others may claim there are roads or trails on the Austin or Tonopah Districts that are within rights-of-way established under R.S. 2477, many of these claimed rightsof-way are not legally documented in accordance with federal law. Without evidence of legal documentation of a public right-of-way for these roads and trails that is recognized by federal law, the District Ranger was required by the travel management rule to consider whether to designate them as NFS roads or trails. Although the FS may make a non-binding administrative determination as to the potential validity of an R.S right-of-way claim for land use planning and management purposes, 73 Fed. Reg. 74,689, 74,694 (Dec. 9, 2008), nothing requires the agency to do so. See Kane County v. Salazar, 562 F.3d 1077, 1086 (10th Cir. 2009). Therefore, under the rule, and consistent with applicable law, the District Ranger was not required to determine whether or not R.S claims were valid, but only whether or not there was legal documentation for these claims. In fact, FS directives provide, and the courts have held, that federal land managing agencies such as the FS lack authority to make legally binding adjudications of the validity of claims for rightsof-way under R.S See 73 Fed. Reg. at 74,694 ( Adjudicated R.S rights-of-way are not under the jurisdiction of the FS. 5

9 The FS does not have the authority to adjudicate R.S rights-of-way. ); SUWA v. BLM, 425 F.3d 735 (10 th Cir. 2005); Friends of Hope Valley v. Forest Service, cv (E.D. Cal. 2004). Accordingly, unless legal documentation of a public highway right-of-way is produced in accordance with federal law, motor vehicle use on a road or trail that meets the definition of an NFS road or trail is governed by the travel management rule. Legal documentation may consist of a valid deed, federal court decree issued under the Quiet Title Act, 28 U.S.C. 2409a, a Recordable Disclaimer of Interest issued under 43 U.S.C. 1745, or similar documentation acceptable to the Forest Service that would be recognized under federal law. Therefore, FS designation or non-designation of an NFS road or trail does not reflect a determination by the FS regarding the potential validity of any claim under R.S Rather, designation or non-designation of an NFS road or trail merely indicates that the FS has determined there is no known legal documentation of a public highway right-of-way for that road or trail held by a public road agency. Should that documentation be produced, the exception under the travel management rule for legally documented public rights-of-way would apply to the route. Nothing in this decision prejudices the ability of a public road authority to assert a claim for an R.S right-of-way. Specifically, nothing in this decision affects the ability of a public road authority to obtain or produce legal documentation of a claimed right-of-way for a road or trail on NFS lands that is recognized under federal law, and assume management responsibility for the road or trail. Moreover, this decision will not result in obliteration of any existing roads or trails, and will not affect non-motorized uses of roads and trails in the interim. The focus of the District Ranger s analysis was on the motorized transportation system on the Austin and Tonopah Ranger Districts, rather than on real property title claims. Through the travel management planning process, the District Ranger attempted to identify NFS roads and trails that are important to the local motorized transportation system by coordinating with state and local government. Where no legal documentation of a public highway right-of-way was produced, high priority was placed on designating these NFS roads or trails for continued motor vehicle use where appropriate, given other transportation and resource concerns. If legal documentation is produced showing public highway rights-of-way for these roads or trails in accordance with federal law, or for roads or trails that were not designated for motor vehicle use, they will then fall under the exemption in the Forest Service rule. RESPONSE 6B: Numerous court decisions have confirmed that the FS has authority under the Property Clause of the U.S. Constitution and the agency s Organic Act (16 U.S.C. 551) to reasonably regulate uses of roads and trails on NFS lands, irrespective of whether the roads and trails are located within an R.S right-of-way. See, e.g., Adams v. U.S., 3 F. 3d 1254 (9 th Cir. 1993); United States v. Garfield County, 122 F. Supp. 2d 1201 (D. Utah 2000); United States v. Jenks, 129 F. 3d 1348 (10 th Cir. 1997); United States v. Vogler, 859 F. 2d 638 (9 th Cir. 1988); Clouser v. Espy, 42 F.3d 1522 (9 th Cir. 1994); Elko County v. Glickman, 909 F. Supp. 759 (D. Nev. 1995); United States v. Nye County, 920 F. Supp (D. Nev. 1996); see also 36 CFR (e)(3) (providing for regulation of uses within R.S rights-of-way that are situated in a wilderness area or that are non-routine operation or maintenance). 6

10 In promulgating the travel management regulations, the FS opted to exempt motor vehicle uses that occur within legally documented public highway rights-of-way on NFS land from designations and prohibitions under the rule. The FS retains the authority under the Property Clause and 16 U.S.C. 551 to regulate motor vehicle uses that occur on roads and trails that do not qualify for this exemption and that otherwise meet the definition of an NFS road or trail, even if these roads and trails may be the subject of claims for public highway rights-of-way that may prove valid in the future and become legally documented in accordance with federal law. Application of the travel management rule to these roads and trails is reasonable, given the purpose of the rule to protect resources and manage conflicts among uses (see, e.g., 70 Fed. Reg. 68,265 (Nov. 9, 2005), and the inability of the FS to definitively adjudicate title to any R.S claims that may be asserted. Moreover, as discussed above, although the FS may for its own internal purposes make non-binding determinations as to the potential validity of R.S claims, nothing requires the agency to do so. Finally, the determination of the potential validity of R.S claims is an exceedingly complex matter that could easily overtake and paralyze the travel management process by requiring the agency to obtain a determination of the validity of all potential R.S rights-of-way claims that may be asserted in the area under consideration before taking action to protect NFS land, resources, and visitors from unregulated motor vehicle use. The District Ranger s decision does not attempt to preclude or restrict all uses of a road or trail, but only specified motor vehicle uses. Existing roads and trails remain available for nonmotorized uses. As discussed above, this decision does not direct the obliteration of roads and trails. Nothing in this decision prejudices the ability of a county or other government entity to produce legal documentation of a right-of-way in the future, and assume management responsibility for those roads or trails that are determined to be within legally documented public highway rights-of-way. As recognized in the travel management rule and the analysis for this decision, motorized uses that occur on or adjacent to National Forest land have the potential to impact the land and resources administered by the FS. Until a public road authority carries its burden of proof and produces legal documentation of a public highway right-of-way for these roads and trails, it is reasonable for the FS to assume responsibility for management of motor vehicle uses on these roads and trails that may affect NFS lands and resources, where doing so does not foreclose future claims under R.S. 2477, limits but does not eliminate all uses of the road or trail, and does not make any irreversible or irretrievable decisions regarding the use or condition of the roads or trails. RESPONSE 6C: For purposes of the travel management rule, the District Ranger was required to evaluate whether or not a road or trail that otherwise met the definition of an NFS road or trail was authorized by a legally documented right-of-way held by a public road authority. The District Ranger was not required to determine the validity of public highway right-of-way claims made by the County. The analysis completed by the District Ranger evaluated the effects of the proposed designations for motor vehicle uses and the resulting prohibition or restrictions of uses. This analysis included consideration of the uses that were allowed on legally documented public highway rights-of-way. The effects of the decision were determined by the motor vehicle uses that will or will not occur as a result, regardless of whether the use or prohibition would fall within any right-of-way claims. Since the analysis clearly depicts the motor vehicle uses and prohibitions that will result from the decision, the decision does not in any way alter, or affect any right-of-way claims that may be made in the future, and the District Ranger made all determinations required under the rule, the District Ranger s analysis was sufficient. 7