June 9, Smith River NRA Restoration & Motorized Travel Management Team Six Rivers National Forest 1330 Bayshore Way Eureka, CA 95501

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1 June 9, 2014 Smith River NRA Restoration & Motorized Travel Management Team Six Rivers National Forest 1330 Bayshore Way Eureka, CA RE: Smith River NRA Restoration and Motorized Travel Management DEIS Dear Smith River NRA Planning Team: Please accept this letter as the official comments of the BlueRibbon Coalition (BRC), a national trailbased recreation group, for the Draft Smith River National Recreation Area Restoration and Motorized Travel Management Project Environmental Impact statement (DEIS). BRC appreciates and publicly thanks the various stakeholders who in participated in various meetings facilitated by the U.S. Institute for Environmental Conflict Resolution to create a collaborative atmosphere whereby public input could be used to enhance OHV opportunities on the NRA. BRC has reviewed the DEIS and supports many underlying tenets of preferred Alternative 6, which include to add a number of short inventoried unauthorized routes (UARs) to popular dispersed recreation sites to the NFTS and designates parking and mixed-use along road 17N49. BRC also supports the addition of 16 miles of motorized access on NFTS, the designation of mixed-use on 0.4 miles of road 17N49, the addition of 50 routes to dispersed sites, the designation of parking at 4 sites along 17N49, the stormproofing of 122 miles of roads and motorized trails, seasonal wet weather road closures as appropriate on roads and motorized trails, and the reclassification of 6 acres from semi-primitive nonmotorized to semi-primitive motorized in the ROS which requires a Forest Plan Amendment. BRC also supports and specifically incorporates by reference herein the list of UAR segments and other site-specific proposals submitted by Del Norte County. These modifications represent important routes to dispersed camp sites, historical uses, or are needed as routes used by the county search and rescue. Unfortunately, Alternative 6 does not fully capture the tone and direction from the aforementioned stakeholder group meetings where county government and the OHV community asked to be embraced either as genuine partners via the county coordination process or as a valued user group. Fortunately, the elements necessary to address these shortcomings are well within the decision space created by the planning process and DEIS. We urge the agency to finish the DEIS solution in progress by adopting a final Modified Alternative 6 as outlined in these comments and those of Del Norte County. 1

2 IMPORTANCE OF USING DISCRETIONARY AUTHORITY TO CREATE A FUNCTIONAL ROUTE NETWORK It is both legally necessary and pragmatically essential that the agency use its discretionary authority to formally establish a functional yet sustainable network of designated routes. Various preservationist and anti-access special interests will incant a litany of alleged legal violations that prevent adoption of Alternative 6 or any meaningful network of vehicle routes in the NRA. They are certainly entitled to voice their opinions, but the agency should carefully evaluate any such claims and realize they are thinly veiled efforts to advance an agenda that includes significantly reducing, if not eliminating, recreational use of vehicle in the National Forest System. The agency is empowered to reject these anti-access positions through correct interpretation of the law, as reflected in various recent court decisions. A favored line of present attack will be through the minimization criteria. The minimization criteria have been around since 1972 and long received only passing interest, but have acquired teeth largely through recent litigation involving similar regulatory language addressing management of the National Forest System. See, 36 CFR (b) (requiring agency 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). In particular, this renewed interest springs in large part from the decision by a U.S. Magistrate 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, which have only come from federal district courts. The 9 th Circuit has on three (3) occasions heard cases involving the OHV minimization criteria and has declined to follow the Guzman court s reasoning in two of those cases, with the third still under advisement following argument on November 7, The agency has broad discretion applying the minimization criteria and is certainly not obligated to restrict motorized access, particularly in response to the subjective complaints or other evidence provided by self-interested nonmotorized use advocates. Several decisions reflect this important truth, most notably the two (2) 9 th Circuit decisions on the topic, both issued in unpublished memorandum dispositions. See, The Pryors Coalition v. Weldon, 803 F.Supp.2d 1184 (D.Mont. 2011), aff d, Fed.Appx., 2014 WL 46468; The Wilderness Soc y v. BLM, 822 F.Supp.2d 933, aff d, 526 Fed.Appx. 790 (2013). Relatedly, nonmotorized recreationists have no inherent right to exclusive use, or any use, that exceeds or trumps those of other recreationists. See, Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9 th Cir. 1994) (rejecting challenge to NPS management plan restrictions on bike access). The agency cannot be strong-armed into motorized use closures or restrictions, and a well-reasoned and documented balance affording reasonable opportunities to a spectrum of recreational uses will be upheld by the courts. BRC was a party in the Pryors case, and a copy of the Circuit s decision can be viewed at: Another area of frequent preservationist attack, as a subcategory of the minimization arguments or an independent line of attack, is the assertion of user conflict which allegedly requires designation of exclusive nonmotorized recreation areas. Again, these claims have been recently and forcefully rejected 2

3 by the courts, as was recently punctuated by the decision in Wild Wilderness v. Allen, F.Supp.2d, 2014 WL (D.Or. 2014), in which the court found that "tradeoffs between motorized and nonmotorized users have already occurred and will continue in the future. The record demonstrates that the Forest Service is continuing a long, inclusive process to manage winter recreation use on the Cascade Lakes Highway. The court s decision may be viewed at: We urge the Forest Service to understand the full extent of its discretionary authority, and exercise that authority in adopting a Modified Alternative 6 in the same spirit as the Pryors Mountains or Kapka Butte projects. SPECIFIC ROUTE SEGMENTS MUST BE ADDED TO ALTERNATIVE 6 While the general approach of Alternative 6 is preferable to other alternatives, there are specific issues and routes that have been overlooked or otherwise improperly omitted from the list of routes that will be designated for continuing and/or necessary vehicle access. We have reviewed the Del Norte County submissions, and rather than unnecessarily repeating those comments will specifically note our support for them and incorporate those comments by reference herein. Specifically, we join in, adopt and hereby incorporate by reference herein Tables 1-5 of the Del Norte County comments. A typical example of a key recreational route is the High Dome Motorized Trail (3E02), which has been a popular motorcycle single-track trail used by off-roaders for several decades. Closure of that trail has never been proposed by the agency or brought up for discussion during the stakeholder process. Yet, Alternative 6 proposes it for closure. This route has long served and become desirable within an array of legitimate forest users, and meets the criteria for formal designation for continuing vehicle access. Remedy BRC strongly urges the agency to modify Alternative 6 to include the specified routes, such as 3E02, among those designated for motorized use. OHV USE ON ML 3 ROADS or ML 2 ROADS Historically, the Forest (1994 Smith River NRA Forest Map) designated routes such as 17N49, 17N07, and 18N09 for non-street legal OHV use. It appears the Forest had classified said routes at ML2 roads (which allow for non-street legal OHV use) or those routes were classified as ML3 roads - which generally does not allow for non-street legal OHV use unless designated as mixed-use roads but were managed as ML2 roads - which does allow for non-street legal OHV use. Alternative 6 appears to have classified those routes (and others) as ML3 roads which might be interpreted by some as prohibiting use upon them by non-street legal OHVs such as ATVs, Side-by-Sides, and dirt-bikes. It is unclear if that is the intent of the DEIS. During the stakeholder process, OHV groups urged the Forest to designate the lower portion of 17N49 as a mixed-use road and to create a parking/staging area just off of Highway 199. Users stated they preferred to stage close to the freeway for security reasons and because it was more practical for users to ride up the dirt road to some of the more rugged trail opportunities in and around Gasquet Mountain. 3

4 Alternative 6 ignores that request and proposes to instead designate several parking areas along the northern section of 17N49. Those staging areas are not practical nor do they enhance the OHV opportunity in that area. In addition, it appears that 17N49 remains closed to OHV use along those proposed staging areas. Remedy Coordinate with county officials and stakeholders to review looped touring opportunities for non-street legal OHVs on the aforementioned roads. The agency has broad discretion to make administrative decisions to allow OHV use on ML1 roads (manage them as motorized trails) and to designate ML3 roads as mixed-use roads for use by non-street legal OHVs or to reclassify a ML3 road as a ML2 road. Site an OHV staging area on 17N49 near the junction of Highway 199. If the county designates a number of their non-paved county roads as non-highways under the CVC, the import of such a coordination meeting becomes even more desirable. Coordination meetings can occur in addition to, or outside of, the public comment period. MOTORIZED ACCESS TO DISPERSED CAMPING AND HISTORIC MINING SITES Local access interests have long articulated their passion for motorized access to many of the historic mining sites or camps in the area. These sites are detailed primarily in Table 2 and 4 to the Del Norte County comments. A typical example of such a site is at the end of the road which Alternative 6 proposes to designate as open for motorized use. Alt. 6 proposes to close the road at the 1.2 mile marker. Unfortunately, the road continues up the mountain and onto a plateau for another.5 to.75 of a mile. It makes a loop at the end where there is an old mine site and a water source. This is a popular dispersed camp or hunting area. Concerns about Port Orford cedar root disease is listed a reason for the road closure. BRC believes that a field trip is warranted with county staff to review practical implications of the proposed action and discuss if a seasonal wet weather closure would be sufficient to meet the agency s resource protection objective while meeting the county s general plan prescription for public access to important mining sites. CONCLUSION The DEIS represents progress from the unacceptable prior situation and toward a workable means of allowing reasonable yet sustainable access to the project area. However, several key shortcomings or areas of possible confusion remain. The Forest Service can work within the procedural and substantive framework of the DEIS to address these concerns in a Modified Alternative 6 as outlined in these comments. We look forward to working with the agency and other stakeholders in achieving this outcome. Sincerely, Don Don Amador Western Representative BlueRibbon Coalition, Inc. 555 Honey Lane Oakley, CA Office:

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