Rocky Mountain Regional Office. 740 Simms Street Golden, CO Voice: TDD:

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1 Forest Service File Code: Route To: Rocky Mountain Regional Office 740 Simms Street Golden, CO Voice: TDD: Date: August 11, 2010 Subject: Recommendation Memorandum for Black Hills National Forest Travel Management Plan To: Maribeth Gustafson, Appeal Deciding Officer As the designated Appeal Reviewing Officer (ARO), this is my recommendation pursuant to 36 CFR 215 on the disposition of the appeal filed by Paul A. Turcke on behalf of the Specialty Vehicle Institute of America (SVIA), the Motorcycle Industry Council (MIC), and the Blue Ribbon Coalition (BRC). Forest Supervisor Craig Bobzien signed the Record of Decision (ROD) authorizing the Black Hills National Forest Travel Management Plan on May 7, 2010 and the legal notice of the decision was published on May 14, DECISION BEING APPEALED The Black Hills National Forest Travel Management Plan would implement the following: Designate about 2,609 miles of roads open to highway-legal vehicles, with about 773 miles of the total 2,609 miles having seasonal restrictions. Designate about 548 miles of roads would be open to all vehicles, with about 200 miles of the total 548 miles having seasonal restrictions. Designate about 148 miles of trails open to all vehicles, with about 67 miles of the total 148 miles having seasonal restrictions. Designate about 90 miles of trails open to motorcycles only, with about 38 miles of the total 90 miles having seasonal restrictions. Designate about 72 miles of trails open to vehicles 50 inches or less, with all having seasonal restrictions. Designate about 397 miles of special designation trails of 62 inches or less, with about 152 miles of the total 397 miles having seasonal restrictions. Designate 20 trailheads to serve the motorized system. Designate about 294,800 acres of land open for motorized big game retrieval (elk only) within 300 feet of certain designated roads. Designate about 135,500 acres of land open for dispersed camping within 300 feet of certain designated roads. Establish a decibel limit for off-highway vehicles. Close motorized cross country travel across the Forest except in two areas and for big game retrieval and access to dispersed camping. Amend the Forest Plan. Several objectives, standards and guidelines would be amended to align the plan with the 2005 Travel Management Rule. It s Cool to Be Safe Printed on Recycled Paper

2 Paul A. Turcke 2 The Travel Management Plan would apply to 1.2 million acres of National Forest System Lands managed by the Black Hills National Forest. The majority of the Forest is in western South Dakota, with some parcels in eastern Wyoming. APPEAL SUMMARY Mr. Turcke, SVIA, MIC and BRC submitted comments during the comment period and have eligibility to appeal. The 45-day appeal period ended on June 28, Mr. Turcke s appeal was received June 28, 2010 and is timely. Mr. Turcke requested the following relief: Withdraw the Decision; Remand the Decision for further analysis; Utilize the Part 215 appeal process to facilitate additional analysis of at least portions of the decision (such as specific routes or trail systems), with implementation staged or delayed as appropriate. ISSUES AND RESPONSES Issue A.1. The Forest Failed to Properly Address Unauthorized Routes. the Forest treated these as illegitimate and failed to meaningfully consider inclusion of such routes in the action alternatives inaccurate depiction of unauthorized routes The Forest misrepresents the status quo and dramatically understates the historical and existing OHV opportunity on the Forest. Table 1 of the ROD suggests that the no action alternative contains only 3,776 total motorized miles. ROD at p. 5. This total is clearly inaccurate, for the FEIS acknowledges that [t]here are presently 10,280 miles of existing routes on National Forest System lands, including some 4,109 miles of known unauthorized routes. FEIS at 23 A failure to consider unauthorized routes violates both the letter and spirit of the Forest Service Travel Management Rule ( the Rule. ) Even in the purported no action alternative unauthorized routes are apparently not included The FEIS pretends that unauthorized routes do not exist, precluding NEPA s required comparison between the action alternatives and the human environmental baseline. Response: The appellant alleges that the Forest violates both the letter and spirit of the Forest Service Travel Management Rule by failing to meaningfully consider and properly address unauthorized routes. The Travel Management Rule provides for revision of designations as needed to meet changing conditions, and does not exclude consideration of converting unauthorized routes into designated routes (36 CFR ). However, according to Forest Service Handbook (FSH) (1), an inventory of unauthorized routes is not required to make travel management decisions. Even though an inventory of routes is not required, public involvement was actively sought during the planning process, including conducting formal scoping and soliciting comments, hosting several public meetings and open house events. Information provided by the public and Forest personnel was used to develop a comprehensive inventory map of roads, trails and areas across the Forest. Public comments and knowledge of agency personnel were used to develop alternative themes, which in turn helped develop the alternatives (FEIS p 19). As stated by the appellant, the FEIS on page 23 states that there are presently 4,109 miles of known unauthorized routes on NFS lands. Under the action alternative descriptions on page 25 of the FEIS, it states that many of the trails proposed to be designated under Alternatives B, C

3 Paul A. Turcke 3 and D are unauthorized routes that were old roads or routes that were pioneered by cross-country travel. The conversion of unauthorized routes into designated routes was considered in Alternative B (210 miles), Alternative C (284 miles) and Alternative D (70 miles). FEIS maps for Alternatives B, C and D show the locations of unauthorized routes considered under each alternative. I find the responsible official meaningfully considered and properly addressed unauthorized routes. I recommend the responsible official be affirmed in regards to this issue. Issue B.1. The Decision fails to provide meaningful opportunity for certain vehicle types and improperly eliminated unique opportunities for specific types of recreation The Decision does not meet the intent of the Rule and fails to provide a justifiable range of opportunity for single track motorcycle trail riders Most single track trails are disjointed and don t provide loops. Trails don t provide access to services. Some trails stop at district boundaries. These do not provide a quality experience In the Northern Hills District, only 15 miles of single track routes were designated out of approximately 197 miles submitted (7%). The Decision eliminated previous access along CZ-4829 The Decision also eliminated a large segment of CZ-4885 which was also selected on all previous proposals in the Mystic District, 75 miles of single track routes were designated out of approximately 143 miles submitted (52%). Unfortunately, trails between Northern Hills District and Mystic District do not always connect. This result seemingly reflects uncoordinated, arbitrary decision making Failure to designate meaningful portions of the existing single track trail network in this process will effectively preclude the future use of those trails, by motorized and non-motorized recreationists. Response: The appellant alleges the Forest Service Decision does not meet the intent of the Rule and fails to provide a justifiable range of opportunities for single track motorcycle trail riders. The Travel Management Rule states that roads, or segments thereof, may be restricted to use by certain classes of vehicles or types of traffic as provided in 36 CFR part 261. There is no direction related to how much of an area should be provided for different types of vehicles. Effects on recreational opportunities were identified as a significant issue in the FEIS (FEIS page 15). The number of miles of motorcycle trail, as well as the number of miles of trails open to other classes of vehicles, were used as indicators of this issue to help define the issue, and to evaluate the effects of the proposed action and the alternatives (FEIS page 13). This issue helped focus the analysis throughout the FEIS and guided alternative development (FEIS, pages 49-96). As shown in Table 1 on page 5 of the ROD, Alternative B provides 76 trails designated for motorcycle only, Alternative C provides 134 trails designated for motorcycle only, and Alternative D provides 21 trails designated for motorcycle only. Alternative B modified (the selected alternative), provides 90 miles of single-track motorcycle trails (ROD, page 14). I find the responsible official provided adequate opportunity for single track motorcycle trail riders and I recommend the responsible official be affirmed in regards to this issue. Issue B.2. A unique rock crawler designation was created in the DEIS, but then omitted in the FEIS/ROD. Instead, the agency apparently decided to include these routes as part of the trails open to all vehicles designation. ROD at 14 this approach is problematic. Many trails originally proposed for the rock crawler designation are not suitable for trails open to all vehicles designation vehicles in the 62 inch and greater category being generally directed to the same trails open to all routes system Many of these vehicles do not have the clearance, tire size, or equipment modifications necessary to traverse even the mild rock crawler

4 Paul A. Turcke 4 trails The rock crawler designation was a thoughtful and unique solution which should have been retained in the FEIS/ROD. Response: The appellant feels the Forest Service should have retained the unique rock crawler designation in the FEIS, and feels that the decision to include these routes as part of the trails open to all vehicles designation is problematic as even mild rock crawler trails will be difficult for most other vehicles to traverse. The Travel Management Rule allows for roads, or segments thereof, to be restricted to use by certain classes of vehicles or types of traffic as provided in 36 CFR part 261 and does not require specific designation for rock crawlers. No law, regulation or policy is being violated by including rock crawlers under the trails open to all vehicles designation. I find the responsible official appropriately followed direction found in the Travel Management Rule, and I recommend the responsible official be affirmed in regards to this issue. Issue B.3. The Hell Canyon District was uniquely resistant to user input on unauthorized routes. Detailed information, including GIS data and maps, were provided before formal scoping, during scoping, and again with the DEIS With publication of the DEIS, enthusiasts realized none of the routes were included in any alternative This omission was identified in comments to the DEIS The FEIS still does not adequately address these routes and the underlying procedural concerns does not offer any opportunity for the vehicles that are now categorized as 62 and greater long-traveled routes available to four-wheel drive vehicles and potentially the 62 inch and greater vehicles have been effectively eliminated from the southernmost area of the Forest. Response: The appellant feels the FEIS does not adequately address information on unauthorized routes provided by enthusiasts for the Hell Canyon District, and therefore many motorized recreational opportunities have been eliminated from the southernmost area of the Forest. The Travel Management Rule provides for revision of designations as needed to meet changing conditions, including the conversion of unauthorized routes into designated routes. However, according to Forest Service Handbook (FSH) (1), an inventory of unauthorized routes is not required to make travel management decisions. Even though an inventory of routes is not required, public involvement was activity sought during the planning process, including conducting formal scoping and soliciting comments, hosting several public meetings and open house events. Public interest in having more trails in the Southern Black Hills is part of the rationale used in making this decision (ROD, page 18). Alternative B modified converts some roads to trails in this area, therefore, I find that the responsible official provided motorized recreation opportunities in the Southern Black Hills, and I recommend the responsible official be affirmed in regards to this issue. Issue C. The Decision improperly isolates many gateway communities from the recreating public The Decision attempts to justify its recognized conclusion to locate the OHV trail system some distance from most potential gateway communities. This is a huge failure of this travel management plan that will have long term economic consequence to those communities, the effects of which are not analyzed in the FEIS or the ROD there are numerous instances where such connections were logical and specifically suggested to the Forest around Camp 5 near Sturgis mixed-use road near Rochford via connections with other

5 Paul A. Turcke 5 communities such as Spearfish, Deadwood-Lead, and Hill City The Forest made the effort to meet stakeholders halfway in many aspects of the planning process, but sadly failed to do so in connecting to gateway communities. Response: The appellant feels that the Decision isolates gateway communities from the recreating public, which will have long term economic consequence to those communities which were not analyzed in the FEIS or the ROD. The NEPA implementing regulations require environmental impact statements to include a section covering environmental consequences of the alternative including the proposed action. (40 CFR ). That section is to include discussions of direct and indirect effects and their significance (40 CFR (a) and (b)) and agencies are to also consider cumulative effects in determining the scope of an environmental impact statement (40 CFR (c)). Finally, the regulations specify that when economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment (40 CFR ). Social and economic concerns were identified as a significant issue in the FEIS (page 16). This issue was one of four significant issues which guided alternative development (FEIS page 13) and helped focus the analysis. The FEIS discloses the economic effects that Forest Service travel management decisions may have on people using and valuing the natural resources that the Black Hills National Forest provides and on local, county, and regional economic systems (FEIS page ). According to the ROD on page 14, the decision maker believes that local jurisdictions have an important role in designating access portals to the motorized system from within their jurisdictions. For this reason, comments from municipalities and local governments were invited and considered in the analysis process. The FEIS discloses how comments received on the DEIS were considered, analyzed and processed. Included within the comments were numerous associated with connecting trails to Gateway communities. I find that an adequate analysis of economic consequences was conducted for this project. Therefore, I recommend the responsible official be affirmed in regards to this issue. Issue D: The Decision improperly alternates between use of the NVUM data and IRIS report the total population of motorized recreationists is vastly different between the two. IRIS puts OHV use in SD at over 166,000 individuals, while NVUM has a significantly smaller figure of about 25,000 there are more, and perhaps significantly more, OHVs and use than the Forest Service is accounting for in Alternative A NVUM data in the BHNF was improperly collected in areas of the BHNF where OHV use is not prevalent (even excluded) which further skews the results. None of the normal ingress or egress routes for OHV use were polled The failure to consider valid (or at lease consistent) data undermines conclusions on user demand and the social and economic effects of any of the action alternatives. Response: Both the National Visitor Use Monitoring (NVUM) results and the Internet Research Information Series (IRIS) information were used for the recreation and socio-economic analyses. The IRIS information was generally used to describe OHV use in the recreation analysis and demographic characteristics in the socio-economic analysis. However, the IRIS report on OHV use focused solely on this type of recreation. The NVUM results focused on all types of recreation. Therefore, when comparisons across different types of recreations were made, generally the NVUM information was used.

6 Paul A. Turcke 6 Issue E.1. The basic methodological structure of the wildlife analysis is questionable, for it largely eschews site-specific analysis for the use of generic indicators as a proxy for impacts which can be easily compared (arithmetically) across alternatives. See, FEIS at First, this misstates the relative impact of the alternatives against a proper no action alternative as Alternative A fails to represent the full range of historical access or route mileages on the Forest. Second, the use of indicators likely fails to capture critical inquiries in determining the existence or extent of impacts on any species or even habitat type. Third, this approach utterly fails to evaluate impact associated with the mere presence of a route, as compared to impacts that are uniquely attributable to motorized travel along the route. Response: The appellant has alleged that the wildlife analysis methodology was questionable, but has not provided any actual alternative site-specific scientific methods that could have been used during analysis. In general, large scale site specific analyses across the entire Forest are cost prohibitive and have inherent difficulties due to irregular traffic patterns on routes and varying movement and behavioral patterns of different wildlife species. The complete analysis for sensitive wildlife species, management indicator species, and local species of concern, including existing habitat conditions, population information, and the effects of alternatives, is provided in the Biological Evaluation and Wildlife Specialist Report to TMP FEIS. This report is compiled using years of monitoring data from across the Forest that is kept in the NRIS FAUNA database, in addition to other Forest Service records and files, South Dakota Game, Fish, and Parks (SDGFP) data, Wyoming Game and Fish Department data, and published research (citations) and is reviewed in detail by the US Fish and Wildlife Service. Sitespecific surveys were conducted on routes and trailheads that showed potential for wildlife conflict: Field reconnaissance has continued to be gathered during work on other projects and Forestwide monitoring efforts. The information gathered from these surveys and stored in the NRIS FAUNA database provided information on distribution and habitat associations for species and helped to determine effects of the alternatives. Routes and trailheads were visited if the pre-field review showed a potential conflict with Forest Plan standards. In most cases, the routes or trailheads were consistent with Forest Plan standards. Routes and trailheads with field verified conflicts with Forest Plan standards were modified according to design criteria to be consistent with Forest Plan standards (p. 169 FEIS). The appellant also raises another issue questioning the completeness of the inventory of existing trail and routes by stating that Alternative A does not accurately represent the full inventory of historical routes on the BHNF. The travel planning process is guided by USFS agency directives. Forest Service Handbook (FSH) (1) specifies that an inventory of unauthorized routes is not required to make travel management decisions. This is further explained in the preamble that accompanied the publication of this Handbook section in the Federal Register: As a practical matter, in areas where there are no restrictions on motor vehicle use, there is no way to conduct a complete inventory of user-created routes, since users of motor vehicles can create new routes while the inventory is underway (73 FR 74691, December 9, 2008).

7 Paul A. Turcke 7 The appellant raises a third issue that the use of indicators does not capture the impacts of action alternatives on wildlife species or habitat types. The BHNF Forest Plan gives direction that, indicators or their habitats will be monitored to indicate overall changes in the forest ecosystem. MIS will generally be monitored using trends in habitat; however, when available, population trends may be used as a strong indicator of management response (II-43, RLMP BHNF). Finally, the appellant alleges that the analysis fails to capture the varying impacts of the presence of a route as well as the motorized use of a route. The Biological Evaluation addresses this point in relation to disturbance to wildlife (from motorized travel) and habitat alteration (routes existing across the habitat): The analysis of effects for wildlife is based primarily on the direct impacts on wildlife (collisions, etc.) and the indirect impacts of disturbance to wildlife. The analysis of effects includes only a limited analysis of habitat alteration. This is because the amount of habitat lost to different types of roads is subjective and not standardized. Many of the roads and trails identified in the alternatives are either part of the current Forest transportation system or have been used unofficially and exist on the ground. The amount of habitat gained or lost by closing or opening roads, trails or areas will be minimal and immeasurable at a Forest Scale. The primary impact of the project on wildlife will likely be disturbance, not habitat alteration (p.10, Biological Evaluation). This comment was also addressed by the agency during the formal scoping process (See Agency Response to Public Concerns and Comments, p. 301). I find that in making his decision, the Forest Supervisor appropriately considered wildlife impacts for each alternative in the FEIS and I recommend affirming that decision on this appeal point. Issue E.2. the FEIS offers only a handful of citations or professional references. Much relevant information seems omitted. Response: The appellant does not refer to any law or regulation that has been violated in the FEIS, or provide any actual references or information that has been overlooked or omitted. A response to this comment would require speculation to determine which information the appellant believes to be relevant to the issue. Chapter 3 Wildlife in the FEIS states under the Methodology section, Sources of information included Forest Service records and files, NRIS FAUNA database, South Dakota Game, Fish, and Parks (SDGFP), Wyoming Game and Fish Department, and published research (citations) (p. 167 FEIS). See also Literature Cited in Appendix C of the FEIS, pages , for all cited references in this document. Issue E.3. There is scant analysis presented on individual species locations or habitat types that can be compared against route location identifying plant locations and allegedly intersecting routes by alternative, without meaningful analysis of possible impacts. Response: The appellant alleges a violation of NEPA and the Council on Environmental Quality (CEQ) Regulations due to the limited analysis presented for sensitive plants. The FEIS (pages ) and Biological Evaluation for Threatened, Endangered, and Sensitive Plant

8 Paul A. Turcke 8 Species included an extensive discussion of plants and botanical resources which described habitat requirements for individual sensitive plants and plant species of concern, along with the potential effects of travel management alternatives on each. It also discusses site specific locations of sensitive plant populations and mitigation necessary for their protection. The requirements of NEPA and the CEQ regulations were met by this analysis, and I recommend the Forest Supervisor s decision be affirmed on this issue. Issue F. The Decision generally states that certain designated routes may not be available in any particular season or year The same discussion suggests that [s]ubstitute trails may, or may not, replace the closed trails at the discretion of the responsible line officer, based on caseby-case circumstances. ROD at 9 This approach is unclear and raises many legal and practical questions The ROD language implies uncertainty and discretion beyond those basic concepts, which arguably violates the letter and spirit of the Rule. Response: The appellant argues that future case-by-case changes to travel management taken by the responsible line officer violate the letter and spirit of the Travel Management Rule and that the stated approach is unclear and raises many legal and practical questions. No specifics were provided as to what legal questions this may raise. The Travel Management Rule at Part (b)(2) allows for temporary, emergency closures based on a determination of considerable adverse effects. If the responsible official determines that motor vehicle use on a National Forest System road or National Forest System trail or in an area on National Forest System lands is directly causing or will directly cause considerable adverse effects on public safety or soil, vegetation, wildlife, wildlife habitat, or cultural resources associated with that road, trail, or area the responsible official shall immediately close that road, trail or area to motor vehicle use until the official determines that such adverse effects have been mitigated or eliminated and that measures have been implemented to prevent future recurrence. The responsible official shall provide public notice of the closure pursuant to 36 CFR , including reasons for the closure and the estimated duration of the closure, as soon as practicable following the closure. Part allows for the revision of designations of National Forest System roads, trails and areas on National Forest System lands. Designations may be revised to meet changing condition. No law, regulation or policy is being violated by not having certain designated routes available in any particular season or year. I recommend the responsible official be affirmed in regards to this issue. Issue G. For the first time in the ROD, the Forest imposes restrictions on CZ1790 Impacts to Cypripedium have gone ignored or are nonexistent, as evidence by the current population of the sensitive species. Nowhere does the FEIS/ROD attempt a detailed discussion of the (or any) restrictions. Instead there is a generic list of possible indirect impacts to botanical resources this route never has and never will receive a significant volume of traffic, rendering questionable many of the possible harmful effects on the list of generic impacts, many of which seem heavily correlated to traffic volume. FEIS at Reasoned site-specific analysis is necessary Site-specific analysis could also potentially suggest mitigation or alternative management strategies, which are ignored by the FEIS/ROD Given the imposition of the restrictions after the close of public comment, this enthusiast community was improperly excluded from the agency s deliberative process.

9 Palll A. TIII"cke 9 I{csponsc: No violation of law, regulation. or policy was noted by the appellant. Under Al tell1atives A-D in thc DEIS and FEIS, Road CZ1790 was open to motorized trave l. In Altell1ative E, it was closed to motorized travel. Therefore. closure of this ro ute was incl uded in the process for public review and the appe llant did have not ice that closure of this rou te was under consideration. Route CZ 1790 was closed based on the distilct botan ist's recommendation to avoid impacts to the species and habitat occurring <llong thi s route (see Botany Resource Analys is, 3/22/20 10). The Forest has di scretion to determi ne what mitigation measures are necessary for resource protection. RE COMME NDATION A re view was conducted pursuant to and in accordance with 36 CFR The review included consideration of the appeal record, FEIS, ROD, comments received duri ng the comment period. agency response to comments, appe llant 'S appeal issues, and relief requested. Based on the re view of the record, I fi nd no violation of law, regulat ion or policy. I recommend thalth Supervisor's decision be affirmed.. BUCK) SANCHEZ!: >pc,,-!:~e viewing Officer orest Supervisor, Whi te River National Forest

10 United States Department of Agriculture Forest Service Rocky Mountain Region 740 Simms Street Golden, CO Voice: TDD: File Code: Date: August 12, 2010 Paul A. Turcke Moore, Smith, Buxton & Turcke, Chartered 950 W. Bannock Street Suite 520 Boise, ID Dear Mr. Turcke: On June 28, 2010, you filed a notice of appeal on behalf of the Specialty Vehicle Institute of America (SVIA), the Motorcycle Industry Council (MIC), and the Blue Ribbon Coalition (BRC). Forest Supervisor Craig Bobzien signed the Record of Decision (ROD) and on May 7, 2010, and the legal notice was published on May 14, Your appeal was timely, and challenged Forest Supervisor Bobzien s decision to select a modification of Alternative B for the Black Hills National Forest Travel Management Plan. Your appeal, the ROD, the FEIS, and supporting documentation in the appeal record were reviewed pursuant to 36 CFR 215. I have weighed the recommendation from the Appeal Reviewing Officer and incorporated it into this decision. A copy of the Appeal Reviewing Officer s recommendations is enclosed. This letter constitutes my decision on your appeal including the specific relief requested. Action Appealed The Forest Service released the FEIS and ROD for the Black Hills Travel Management Plan on March 22, The ROD was subsequently withdrawn and re-issued on May 7, The FEIS analyzes alternatives for improving management of motorized vehicle use on National Forest System lands within the Black Hills National Forest in accordance with regulations at 36 CFR Parts 212, 251, 261 and 295 and described in the Travel Management, Designated Routes and Areas for Motor Vehicle Use, Final Rule (Federal Register, Vol. 70 No. 216). The project area consists of federal public lands managed by the Black Hills National Forest comprising approximately 1,200,000 acres in western South Dakota and eastern Wyoming. The decision would designate about 3,860 miles of open roads and trails, maintain about 294,800 acres open to motorized use for game retrieval and about 135,500 acres open to motorized use for dispersed camping. In addition, the decision establishes 20 trailheads to serve the designated motorized system, establishes sound level limits for off-highway vehicles, closes a majority of the motorized cross country travel, and amends the Forest Plan. Appeal Reviewing Officer s Findings and Recommendation Appeal Reviewing Officer (ARO) Buck Sanchez found that your appeal focused on seven main points, which are summarized in the attached recommendation letter. The ARO found that It s Cool to Be Safe Printed on Recycled Paper

11 Paul A. Turcke 2 documentation provided by Forest Supervisor Bobzien demonstrated compliance with applicable laws, regulations, and policies. ARO Sanchez has recommended affirmation of Forest Supervisor Bobzien s decision. Decision After reviewing the analysis presented in the recommendation letter, I agree with ARO Sanchez that the record supports the Forest Supervisor s decision. All appeal issues raised have been considered. The Forest Supervisor s decision is affirmed and your request for relief is denied. This project may be implemented on, but not before the 15 th business day following the date of this letter (36 CFR 215.9(b)). This decision constitutes the final administrative determination of the Department of Agriculture (36 CFR (c)). Sincerely, /s/ Maribeth Gustafson MARIBETH GUSTAFSON Deputy Regional Forester, Operations Enclosure cc: Craig Bobzien Buck Sanchez

12 MOORE SMITH BUXTON & TURCKE, CHARTERED ATTORNEYS AND COUNSELORS AT LAW 950 W. BANNOCK STREET, SUITE 520; BOISE, ID TELEPHONE: (208) FAX: (208) LOREN W. ANDERSON STEPHANIE J. BONNEY SUSAN E. BUXTON* PAUL J. FITZER JILL S. HOLINKA BRUCE M. SMITH PAUL A. TURCKE CARL J. WITHROE»* JOHN J. MCFADDEN Of Counsel MICHAEL C. MOORE Of Counsel» Also admitted in California * Also admitted in Oregon Also admitted in South Dakota Also admitted in Utah Also admitted in Washington June 28, 2010 Delivered via U.S. Mail and to appeals-rocky-mountain-regional-office@fs.fed.us USDA, Forest Service, Region 2 ATTN: Appeal Deciding Officer 740 Simms St. Golden, CO RE: Part 215 Notice of Appeal- Black Hills NF Travel Management Plan ROD/FEIS Dear Appeal Deciding Officer: Please accept this Notice of Appeal under 36 C.F.R. Part 215 from the Record of Decision Notice ( ROD ) and Final Environmental Impact Statement ( FEIS ) for the Black Hills National Forest Travel Management Plan (collectively, the Decision ), dated March 22, This appeal is presented on behalf of the Specialty Vehicle Institute of America ( SVIA), the Motorcycle Industry Council ( MIC ), and the Blue Ribbon Coalition ( BRC ). Individual and/or organizational members of the listed appellants may submit their own appeal(s) from the Decision. This appeal and any such appeals must be independently evaluated and the agency must comply with applicable review procedures for all such appeals. Any communications regarding this appeal should be directed to Paul A. Turcke at the contact information listed above and at pat@msbtlaw.com. I. INTRODUCTION Appellants are generally appreciative of the underlying process, structure of the Decision, and outcome on the majority of issues considered. Appellants understand there are active and well-moneyed special interests who seek aggressive reduction (if not elimination) of motorized access to the National Forest System. We applaud the Forest for remaining faithful to the underlying mission of balancing sustainable management of physical resources and appropriate human enjoyment of the Forest. Since current regulations provide no mechanism for intervention in the part 215 appeal process, we face little option but to file an appeal in order to fully participate and defend motorized route/area designations against possible challenge. 1

13 There are, however, several areas where the analysis did not follow proper procedures or provide a defensible rationale for restrictions of historically-available motorized access. Properly characterized, the Decision authorizes continuing travel along 3,864 of at least 10,280 miles of existing routes, and therefore eliminates existing motorized access on at least 62% of routes in the Forest. At least some of these route-specific decisions are simply wrong and should be reconsidered and rectified in the administrative appeal process. II. GENERAL LEGAL STANDARD As a preliminary matter, we wish to outline the applicable standard of judicial review, as this standard is effectively the one which agency decisionmakers must consider during the administrative review process. Executive-branch agency decisions are ultimately reviewable by the judiciary, which is empowered to set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or found to be without observance of procedure required by law. 5 U.S.C. 706(2)(A) & (D), see also, Bonnichsen v. United States, 367 F.3d 864, 880 (9 th Cir. 2004) ( we review the full agency record to determine whether substantial evidence supports the agency s decision. ). The arbitrary and capricious standard is deferential and does not allow a reviewing court to substitute its judgment for that of the agency: The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made...normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency's action that the agency itself has not given. Motor Vehicle Mfrs. Ass n. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983) (citations omitted) (emphasis added). Arbitrary and capricious review is the mechanism through which the courts can require basic fairness and reasonableness of agency behavior, for unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on discretion. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962) (quotation omitted). Even where an agency can arguably point to substantial evidence supporting its decision, the presence of contradictory evidence might render the decision arbitrary and capricious. Thus, even though an agency decision may have been supported by substantial evidence, where other 2

14 evidence in the record detracts from that relied upon by the agency we may properly find that the agency rule was arbitrary and capricious. American Tunaboat Ass n v. Baldrige, 738 F.2d 1013, 1016 (9th Cir. 1984) (citing Bowman Transport, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284 (1974) (agency decision supported by substantial evidence may still be arbitrary and capricious)); see Atchinson v. Wichita Board of Trade, 412 U.S. 800, 808 (1973) (where agency modifies or overrides precedents or policies, it has the duty to explain its departure from prior norms ). Even substantial evidence cannot properly support a decision if the information was not considered by the decision-maker at the proper stage of the process. Information cannot be presented as a post-hoc rationalization to justify a decision previously made. Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9 th Cir. 1996). For the reasons identified below, the Decision violates these basic principles. III. APPEAL ISSUES The Decision is legally deficient in its treatment of several important issues. A. The Forest Failed to Properly Address Unauthorized Routes. There are several distinct and independent flaws in the Decision s treatment of unauthorized or user-created routes. In general terms, the Forest treated these as illegitimate and failed to meaningfully consider inclusion of such routes in the action alternatives. The inaccurate depiction of unauthorized routes constitutes independent violation of the Travel Management Rule and NEPA. The Forest misrepresents the status quo and dramatically understates the historical and existing OHV opportunity on the Forest. Table 1 of the ROD suggests that the no action alternative contains only 3,776 total motorized miles. ROD at p. 5. This total is clearly inaccurate, for the FEIS acknowledges that [t]here are presently 10,280 miles of existing routes on National Forest System lands, including some 4,109 miles of known unauthorized routes. FEIS at 23. A failure to consider unauthorized routes violates both the letter and spirit of the Forest Service Travel Management Rule ( the Rule. ). The Rule recognizes that some of these routes may be properly included in a formally-designated system and encourages Forest to work with interested publics to achieve this end. See, 70 Fed.Reg (middle column) ( some usercreated routes would make excellent additions to the system of designated routes and areas. The Forest Service is committed to working with user groups and others to identify such routes and consider them on a site-specific basis. ); at (middle and right columns) ( User-created routes on NFS lands that have resulted from [previously legal] cross-country motor vehicle use may be identified through public involvement and considered in the designation process under the final rule. ). The Forest s analysis falls far short of what is expected under the Travel Management Rule. 3

15 The Forest has independently violated NEPA s requirement that the no action alternative be properly identified. See, 40 CFR (d). Even in the purported no action alternative unauthorized routes are apparently not included. This failure to identify existing routes prevents proper comparison any of the action alternatives to the baseline or existing condition. Without a fixed point from which to compare impacts neither the agency nor the public can properly evaluate the true impacts of the alternatives. Half Moon Bay Fishermans Marketing Ass n v. Carlucci, 857 F.2d 505, 510 (9 th Cir. 1988). It is important to note that the relevant environment for purposes of evaluating impacts is the human environment which includes not just the physical environment but the relationship of people with that environment. 40 CFR The FEIS pretends that unauthorized routes do not exist, precluding NEPA s required comparison between the action alternatives and the human environmental baseline. B. Many Submitted Routes Were Ignored or Arbitrarily Excluded by the Decision. The Decision fails to provide meaningful opportunity for certain vehicle types. Generally, the Rule requires the Forest to consider, among various factors, provision of recreational opportunities, access needs, conflicts among uses of National Forest System lands in making designation decisions. 36 CFR (a) (2007). The Final Rule reflects an agency commitment to provide appropriate recreation opportunities for a spectrum of users, including diverse motorized recreation opportunities. See, e.g., 70 Fed.Reg. at (designations will enhance opportunities for motorized recreation experiences ); at ( agency must strike an appropriate balance in managing all types of recreational activities ); at ( entirely appropriate for different areas of the National Forests to provide different opportunities for recreation ); at (discussing balance of opportunities, noting in some areas maintaining separate trail networks for different uses may reduce conflict and enhance public safety and the recreational experience and recommending that such balance is best achieved at the local level, with public participation. ). In the 62 percent of existing routes closed by the Decision, at least several have violated these criteria and improperly eliminated unique opportunities for specific types of recreation. 1. Single Track or Motorcycle Routes. Motorcycle enthusiasts are typically allowed on routes open to motorized vehicles, but the desired trail experience for the majority of motorcycle enthusiasts is single track trail riding. The Decision does not meet the intent of the Rule and fails to provide a justifiable range of opportunity for single track motorcycle trail riders. Most single track trails are disjointed and don t provide loops. Trails don t provide access to services. Some trails stop at district boundaries. These do not provide a quality experience. Attached hereto as Exhibit A is a map depicting the single track trails submitted to the Forest, as well as the final single track network designated by the Decision. Individual route numbers are shown on the map, and further identified in the accompanying spreadsheet, attached as Exhibit B hereto. To clarify, the submitted routes are among the more than 6,000 miles of existing unauthorized or non-system routes that exist on the ground and were lawfully created and traveled under applicable regulatory and/or Forest Plan guidance. Enthusiasts have 4

16 undertaken substantial effort to locate and map these routes, and have exercised great restraint in selecting a subset of the existing routes to submit for formal designation in the current planning process. Enthusiasts have reviewed the Decision and compiled the following summary (using GIS data) regarding single track motorized trail: GIS statistics 90 miles of trails in 86 pieces Average length is 1.04 miles 59 trails are less than 1 mile in length Exclusive single track loops 7, with the following trail mileages:.9 miles.95 miles 1 mile 1.35 miles 1.5 miles 1.8 miles 2.2 miles There are 59 dead ends on the single track trails that do not connect to other single track. In the Northern Hills District, only 15 miles of single track routes were designated out of approximately 197 miles submitted (7%). The Decision eliminated previous access along the longest segment of proposed single track in the plan, CZ-4829 (17.9 miles, Nemo to Camp 5 area). This trail was selected on all previous proposals. The Decision also eliminated a large segment of CZ which was also selected on all previous proposals. Northern Hills District personnel stated at public meetings that they lack the time or resources to evaluate all the single track trails submitted. The enthusiast community reiterates its frequently expressed ability and willingness to assist the District as appropriate in surmounting these challenges. Similarly, in the Mystic District, 75 miles of single track routes were designated out of approximately 143 miles submitted (52%). Unfortunately, trails between Northern Hills District and Mystic District do not always connect. This result seemingly reflects uncoordinated, arbitrary decisionmaking. Single track trails are a treasured but limited resource for many outdoor enthusiasts. Failure to designate meaningful portions of the existing single track trail network in this process will effectively preclude the future use of those trails, by motorized and nonmotorized recreationists. Appellants implore the Forest to reevaluate single track route designations and commit to further review so as to sustain recreation on single track routes in the Forest. 2. Rock Crawler Designation. A unique rock crawler designation was created in the DEIS, but then omitted in the FEIS/ROD. Instead, the agency apparently decided to include these routes as part of the trails open to all vehicles designation. ROD at 14. 5

17 While appellants appreciate the authorization of continuing access, this approach is problematic. Many trails originally proposed for the rock crawler designation are not suitable for trails open to all vehicles designation. The change is confusing and may create a situation where less-capable vehicles are unable to traverse portions of those trails, leading to potential safety concerns or illegal off-route travel. There is no indication in the Decision regarding how those trails will be marked at any point to indicate their difficulty level or unique demands. At the same time, the FEIS/ROD reflects a subtle change from a class designation of 65 inches to 62 inches. ROD at 17. This results in vehicles in the 62 inch and greater category being generally directed to the same trails open to all route system. There are a wide range of vehicle types in the 62 inch and greater category. Many of these vehicles do not have the clearance, tire size, or equipment modifications necessary to traverse even the mild rock crawler trails, The rock crawler designation was a thoughtful and unique solution which should have been retained in the FEIS/ROD. 3. Hell Canyon District Routes. The Hell Canyon District was uniquely resistant to user input on unauthorized routes. Detailed information, including GIS data and maps, were provided before formal scoping, during scoping, and again with the DEIS. This was the product of two-three years of intensive coordinated effort on the part of enthusiasts. With publication of the DEIS, enthusiasts realized none of these routes were included in any alternative, and could find no evidence that any were even meaningfully considered. This omission was identified in comments to the DEIS, and in light of various factors, including personnel changes in the District, the information was resubmitted. The FEIS still does not adequately address these routes and the underlying procedural concerns. In the ROD, the Forest Supervisor does make an attempt to change two areas from roads to trails to try to address some measure of opportunity. While that effort is certainly appreciated, it does not offer any opportunity for the vehicles that are now categorized as 62 and greater, trails for which were faithfully submitted for consideration and dismissed. Ultimately, long-traveled routes available to four-wheel drive vehicles and potentially the 62 inch and greater vehicles have been effectively eliminated from the southernmost area of the Forest. C. The Proposed Transportation System Does Not Adequately Connect to Gateway Communities. The Decision improperly isolates many gateway communities from the recreating public. One of the prime recommendations of the NFAB Subcommittee was to use the travel planning process to establish and connect to gateway communities in the locale. ROD at 3, section 5. The reasons for this recommendation are obvious the social and economic benefits 6