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