June 26, 2013
Appeals Deciding Officer
U.S.D.A. Forest Service
Rocky Mountain Region
740 Simms Street
Golden, CO 80401
Re: CDNST and Colorado Trail Reroute: Lujan to La Garita Wilderness
Dear Sir or Madam:
The Continental Divide Trail Society (CDTS) has received and reviewed the environmental assessment and decision notice and finding of no significant impact for the subject project. Our Society submitted substantive written comments and wishes to take this opportunity, pursuant to 36 CFR 215, to file an appeal.
This appeal relates solely to the portion of the decision (pages 30-31) that finds that the access routes to water that we had proposed were eliminated from detailed consideration in this environmental assessment. (The decision, dated May 31, 2013, was made jointly by Dan S. Dallas, Forest Supervisor, Rio Grande National Forest, and Scott G. Armentrout, Forest Supervisor, GMUG National Forests.)
The specific change in the decision that CDTS seeks is to give detailed consideration to the access routes to water in accordance with our proposals. It is our expectation that if the Forest Services carries out a careful review, it will conclude that Los Creek is a desirable water source and tht the proposed CDNST alignment should be modified to take this into account.
THE UNRESOLVED ISSUE: ACCESS TO WATER
We note, first, that one of the issues that had been identified in the predecisional environmental assessment (p.7) as an unresolved conflict requiring alternative analysis to come to decision was: “Alternative or routing preference: Trail needs to be routed so users have access to water.”
There are four documents in the record that respond to this issue, each of which will be recounted in turn:
Predecisional environmental assessment (pp.23-24)
The proposed new alignment follows the ridge or near the ridge of the Continental Divide for most of its length dropping down to live water in only two places: Monchego Park, and Luder’s Campground . Luder’s Campground and Monchego Park are the main sources of water on the proposed route until it starts getting close to Cochetopa Creek.
Monchego Park may benefit from some water source development/improvement, since it is not very fast flowing and leads into a stock pond.
There are two potential water sources just about ¾ of a mile northeast of Monchego Park, but they would require improvement. These are small springs which could potentially provide water.
Four miles southwest of Monchego Park there are two stock ponds about a mile off the proposed alignment on road 787. Humans would not enjoy drinking from this source, but it would be acceptable for stock (Horses, Llamas, etc.).
Three miles further west, on the proposed route, there is a natural pond ¼ mile down road 597, again not optimal for human use, but adequate for stock use.
Then another 3 miles down the proposed alignment (to the south), Cochetopa creek provides good flowing water.
Continental Divide Trail Society Comments
Southbound hikers, in most seasons, will be able to obtain water from Razor Creek, an estimated 7.1 miles north of Lujan Pass. There is also a small streamflow in Lujan Creek, a half mile west of Lujan Pass. There is an evident need for the new segment to be routed so users have access to water at one or more locations along the way, as reflected in the statement of issues on page 7 of the EA.
The EA (p.24) identifies two locations on the proposed new alignment that would afford direct access to live water: Monchego Park and Luder's Campground. We have questions about each of these.
Monchego Park. The EA provides very little information regarding the water here – only that it is "not very fast flowing and leads into a stock pond." For that reason, the water source here may benefit from some ... development/improvement." (There are some small springs about 3/4 mile to the northwest [sic], but a detour of that distance is undesirable.) Let us assume that water of reasonable quality can be expected, with confidence, to be found here; we can only endorse an alignment to Monchego Park as a last resort. As indicated above, we would be displeased by the elevation changes that would be necessitated in order to access Monchego Park; following the ridgeline, through the openings depicted on the topographic maps, would be a more scenic and enjoyable way to proceed.
Luder's Campground. The EA provides little information regarding the water here. The USGS map shows the creek to be ephemeral. Information on the Forest website cautions "NO POTABLE WATER" ... "No drinking water for humans." We are not especially concerned about this (inasmuch as hikers must routinely purify or filter) so long as the stream always flows. But there are other drawbacks as well – camping would be in a developed area rather than an open space, and the schedule might not accommodate some early season hikers.
We believe that Los Creek is the best accessible water source between Lujan Pass and Cochetopa Creek. In the guidebooks that we have published, we have been advising CDNST users, since 1986, that Los Creek "though small ... should prove to be a dependable water source." In all that time, during which we have regularly monitored hikers' journals and other media, we have never received a report that Los Creek was dry. The guidebook mentions "a scenic view out over the grassy valley." (This description refers to the existing alignment, on the Cochetopa Park map; it would probably not be necessary to descend that far, as the headwaters on the North Pass map appear as a perennial stream.) To access Los Creek, realign the route south of Cochetopa Pass through the notch to the east of hill 10165 and intersect the Jakes-Los jeep trail; from this point, we estimate that water would be found no more than 0.5 mile down the jeep trail, with an elevation loss of 300 feet or less. And even if the proposed alignment along the Divide were retained, a spur to Los Creek would be more convenient that the Luder's Spur. Assuming that the Trail is realigned to bypass Monchego Park, the distance between Los Creek and Cochetopa Creek (at the southern end of the reroute) is approximately 19 miles – a longer interval than we like, but manageable.
[The guidebook mentioned above is: James R. Wolf, Guide to the Continental Divide Trail: vol. 5: Southern Colorado, 1986, and revised ed., 1997.)
Environmental Assessment (May 2013)
The proposed new alignment follows the ridge or near the ridge of the Continental Divide for most of its length dropping down to the water in only two places. Monchego Park, and Luder’s Campground. Luder’s Campground and Monchego Park are the main sources of water on the proposed route until it starts getting close to Cochetopa Creek.
Monchego Park may benefit from some water source development/improvement since it is not very fast flowing and leads into a stock pond. There are two potential water sources about ¾ of a mile northeast of Monchego Park, but they would require improvement. These are small springs which could potentially provide water. There is no proposal to develop either of these water sources at this time.
[Figure 3-5. Spring near Monchego Park]
Four miles southwest of Monchego Park there are two stock ponds about a mile off the proposed alignment on road 787 that could provide a source of treatable water.
[Figure 3-6 (unidentified) stock pond]
Three miles further west on the proposed route there is a natural pond ¼ mile down road 597 which couls serve as water source. Another 3 miles south down the proposed alignment Cochetopa Creek provides good, flowing water.
Decision Notice [pp. 30-31]
[Develop trail so there is access to water at the following locations] The following access routes to water were considered but eliminated from detailed consideration in this EA.
DISCUSSION OF WATER SOURCES
There is general agreement that there are acceptable water sources at the terminal points of the analysis area (Lujan/Spanish Creek to the north, Cochetopa Creek to the south). The proposed alignment between these points is 31.2 miles. We regard this as an “excessive” distance within the meaning of FSM 2353.44b(9), calling for consideration of development and protection of water sources for users of the CDNST.
A. From north to south, these are the water sources that have been reviewed by the Forest Service.
The EA does not display any water sources in Monchego Park or any trail that would connect the CDNST to them. The only such sources in the vicinity are two small springs said to be about ¾ of a mile northeast of Monchego Park.
These springs are described only vaguely, without any means of getting to them, and no mention of potential conflict with motorized vehicles or other management activities. They apparently would require improvement (which is not currently contemplated) of unstated cost and feasibility. Even if these springs are reliable throughout the year (for which no hydrologic evidence is supplied), their remoteness from the proposed alignment and the Divide make them unacceptable in our view unless there is absolutely no feasible alternative.
See attached Map 2 – MONCHEGO PARK, which shows the proposed CDNST alignment, Monchego Park, and the springs in relationship to one another.
Los Creek is a desirable water source because it is a reliable flowing stream, in an attractive natural setting, in close proximity to the CDNST (especially if the proposed trail is slightly realigned). Based upon our knowledge of this stream along with the serious disadvantages of all the sources identified by the Forest Service, we have no doubt that its recognition would best serve the nature and purpose of the CDNST to provide a high-quality scenic, primitive hiking opportunity.
. As noted in our comments, we have been advising CDNST users, in our guidebook (first published in 1986), that Los Creek "though small ... should prove to be a dependable water source." In all the years since then, during which we have regularly monitored hikers' journals and other media, we have never received a report that Los Creek was dry. The guidebook mentions "a scenic view out over the grassy valley." (This description refers to the existing alignment, on the Cochetopa Park map; it would probably not be necessary to descend that far, as the headwaters on the North Pass map appear as a perennial stream.)
The environmental assessment supports this appraisal by citing the description by Tom Lorang Jones (EA, p.37) that mentions the “idyllic country lane” and Los Creek itself (with no suggestion that it may be dry at times).
A further advantage of Los Creek is that it would not require development. (However, as in the case of any natural resource along the CDNST corridor, future planning and management should include appropriate measures of conservation, in accordance with the nature and purpose statement of the CDNST Comprehensive Plan.)
THE FOREST SERVICE OBJECTIONS
A. Los Creek
The decision rejected access to Los Creek for the following stated reasons:
1. Realigning the trail onto the Jeep trail is not being considered in this analysis due to the inconsistency with the Act.
CDTS did not propose realigning the CDNST onto the Jeep trail. Whether or not our proposal is adopted the CDNST will make one perpendicular crossing of the Jakes-Los jeep trail (identified, somewhat illegibly as road 7823.16? on Figure 3-1a). There is no inconsistency with the National Trails System Act.
2. Creating a trail in this area is not as consistent with the Act as keeping it on the Divide.
According to the CDNST Comprehensive Plan (IV.B.1.c.(2), p.9), “deviation from routes that more closely follow the geographic Divide is acceptable under the following circumstances:
....
(c) To access significant … recreational … opportunities.”
Facilitating access to Los Creek is definitely a significant recreational opportunity, in view of the creek’s status as a uniquely reliable and readily treatable water source in a 30+ mile segment of the CDNST.
Moreover, the Forests’ objections are directly at odds with the alignment proposed in the EA that deviates from the Divide for several miles in the vicinity of Monchego Park. The only justification that we can envisage for that deviation is potential access to water — but, as we have discussed above, water opportunities there are ill-defined as to location and questionable as to reliability, quality, and need for development. But if there is any merit in deviating near Monchego Park, there should hardly be any concern about a much smaller realignment near Los Creek.
3. Creating a trail in this area ... would further be difficult to manage because of the proximity to existing roads and other management activities.
This assertion is ambiguous with respect to the trail that would be created and that allegedly might be difficult to manage..
-- With respect to the CDNST itself. There are two possible alignments of the CDNST. One is the route proposed in the EA. The other is the CDTS suggested realignment “south of Cochetopa Pass … through the saddle east of hill 10165.” In neither case would the route be in proximity to any roads (except for their common crossing of 7823.16). There is no hint as to why other management activities might be impacted differently by the selection of one of these routes or the other.
-- With respect to road 7823.16. There would be nothing unusual about utilizing an existing road to provide access to water off the CDNST itself. The environmental assessment accepts the suitability of such road use at many places — for example, to Lujan/Spanish Creek, on Road 787, on Road 597, etc. There is no reason to believe that the use of the Jakes-Los jeep trail would give rise to additional management actions.
-- With respect to a spur trail such as the one planned for access to Luders Campground. CDTS did mention the prospect of “a spur to Los Creek” that would be more convenient than the Luder’s Spur. In context, this “spur” was intended to refer to Road 7823.16 and would not involve the construction of any new trail. As a new spur trail was not meant to be read as part of our proposal , any impacts associated with its creation are irrelevant. (We would be pleased, however, if the Forest Service were to consider creating such a nonmotorized spur route, either in the resolution of this appeal or otherwise.)
See attached Map 1 – LOS CREEK, which shows the alignment of the proposed in the environmental assessment along with the route proposed by appellant. (This map is intended to shed light on the issues discussed above. The exact route should be selected taking field surveys into account.)
B. Monchego Park
As quoted above, CDTS referred to an alignment to Monchego Paark as a last resort. “Hikers would be displeased by the elevation changes that would be necessitated in order to access Monchego Park. Following the ridgeline, through the openings depicted on the topographic maps, would be a more scenic and enjoyable way to proceed along the CDNST. We request reconsideration of the proposal to descend to Monchego Park (900 foot elevation loss) and ascend a similar amount to return to the Continental Divide.”
The Forests did not respond to the substance of this proposal. Instead, the decision notice declares that “there is no proposal in front of GMUG to consider a route to Monchego Park from the proposed CDNST.”
Perhaps technically the proposed alignment does not enter Monchego Park. Yet it is surely clear that appellant was questioning the deviation (which drops off the Continental Divide for several miles) in that vicinity. For, if the La Garita-Lujan segment is designed so as to take advantage of water access at Los Creek, then keeping to the Divide while looking out over Monchego Park would be far more scenic, recreationally enjoyable, and removed from motorized areas.
As a general approach, the decision notice (p.30) declares that “the proposed route has been considered for the gentlest grades possible while staying as near to the divide as practicable.” We agree with that principle. The Forest Service should adhere to it here unless it articulates good reasons to do otherwise.
Once again, please refer to Map 2 – MONCHEGO PARK.
APPEAL CONTENT – 36 CFR § 215.14
The requirements of 36 CFR 215.14(b) (1-5) are addressed elsewhere in this document.
(6) Changes in the decision and rationale.
The changes in the decision that appellant seeks are:
(7) Portions of the decision with which the appellant disagrees.
· The portion of the decision with which we disagree is the portion (pp. 30-31) that is headed “Develop trail so there is access to water at the following locations.” A full explanation of the disagreement is provided above under the caption THE FOREST SERVICE OBJECTIONS.
(8) Why appellant believes the decision failed to consider the substantive comments.
· We can only speculate as to the reason that the Responsible Official decided not to consider appellant’s substantive comments, but we suggest that it may be a failure to appreciate fully the importance of ready access to water for users — especially hikers — on the Continental Divide National Scenic Trail (CDNST).
(9) How the appellant believes the decision violates law, regulation, or policy
The CMP (IV.A.) defines the nature and purposes of the CDNST as follows:
“The primary policy is to administer the CDNST consistent with the nature and purposes for which this National ScenicTrail was established. The nature and purposes of the CDNST are to provide for high-quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along the CDNST corridor.”
The CMP (IV.B.8b.) specifically authorizes access to water sources by side trails where it is feasible to do so.
The decision violates this Act by failing to offer an achievable high-quality primitive hiking opportunity that would provide for the maximum outdoor recreation potential of the CDNST and the enjoyment of the qualities of the areas between La Garita and Lujan. A hiking trail segment that extends over 30 miles without access to reliable and treatable water sources cannot be viewed as “high-quality,” especially where the adoption of a reasonable alternative would eliminate that deficiency. Improved access to Los Creek, along with the other modifications we have proposed, would help to maximize the outdoor recreation potential.
CEQ regulations direct that an environmental assessment shall include a discussion of the environmental impacts of the proposed action and alternatives. 40 C.F.R. § 1508.13 (and § 1507.2(d) , extending this to alternatives in any proposal which involves unresolved conflicts concerning alternative uses of available resources — not limited to impact statements).
Agencies have a responsibility to “rigorously explore and objectively evaluate all reasonable alternatives. 40 C.F.R. § 1502.14(a). If an alternative is eliminated from detailed study, the agency shall “briefly discuss the reasons for their having been eliminated.” Ibid.
The policies applicable to environmental impact statements have been summarized in this way:
NEPA requires agencies to take a “hard look” at the environmental consequences of their actions by preparing an EIS for each “major Federal action significantly affecting the equality of the human environment … The EIS must “provide [a] full and fair discussion of significant environmental impacts” so as to “inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” The Lands Council v. McNair, 537 F. 3d 981, 1000-01 [citations omitted].
As the consideration of the current project includes unresolved conflicts regarding alternative uses of available water sources, the same policies need to be followed in this environmental assessment.
The reasons for eliminating an alternative may be discussed briefly, but they must be the result of a “hard look.” In this case, there was no look whatsoever at the hydrological characteristics of Los Creek, nor (as explained above) any reasoned basis for excluding it from consideration. If a goal is to enhance the quality of the human environment, reasonable alternatives to do so must be assessed. (The “human environment” includes “the relationship of people with that environment” 40 CFR § 1508.14, and few matters are more central to that relationship than availability and quality of water.) In our view, the Forest Service was obliged to “rigorously explore and objectively evaluate all reasonable alternatives” (even in the case of an environmental assessment instead of an environmental impact statement), 40 C.F.R. §1502.14(a) and so far it has failed to do so.
The decision not to give detailed consideration to water access at Los Creek should be set aside because it is arbitrary and capricious. 5 U.S.C. § 706(2)(A).
An agency decision can be found arbitrary and capricious where the agency “entirely failed to consider an important aspect of the problem.” Motor Vehicles Mfrs. Assn. v. State Farm, 463 U.S. at 43. The environmental assessment failed to consider the desirability of Los Creek as a water source that would resolve an important part of the problem— namely, the excessive distance between suitable water sources in the project area.
A reviewing court (or, in this case, the Appeals Deciding Officer) “must ensure that an agency has taken a ‘hard look’ at the environmental consequences of its proposed action … carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors.” Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 980 (9th Cir. 1993). The environmental assessment’s evaluation took a hard look at Luder’s Campground and concluded that it should not be considered as a water source. The EA alluded to springs in the vicinity of Monchego Park, but failed to state their location or their distance from the proposed alignment. And, although it recognized a potential need for development, it gave no indication of the nature or feasibility of potential improvements.
And, most importantly, the EA did not take a hard look at the qualities of Los Creek that appellant had identified as a possible alternative water source. The other factors cited were erroneous as a matter of fact (use of road instead of trail), contrary to applicable policy set out in the CDNST Comprehensive Plan (deviation from the Continental Divide to access water resources), or in direct conflict with other approved uses (use of side roads to access water sources) There is no rational connection between the facts set out in the environmental assessment and the decision not to give detailed consideration to appellant’s proposals.
CONCLUSION
The specific changes in the decision that Appellant seeks, and rationale for those changes, have been set out above and will not be repeated.
We note, however, that the issues we have raised relate only to that portion of the project area between Cochetopa Pass (Colorado Highway 140) and Forest Road 787. We would have no objection to a decision on appeal that stays construction between those two roads, yet allows all work to proceed as proposed at the North Pass and Cochetopa Creek terminal segments.
I am familiar with the provisions pertaining to the informal disposition of an appeal (36 CFR 215.17). I would be available to discuss resolution of the issues informally, but only by telephone conference. Please note that I expect to be on travel for several weeks and may not receive postal or telephone communications. If you do wish to contact me, with regard to informal disposition or any other matter, please do so by sending me an e-mail message addressed to jim@cdtsociety.org.
We invite you to view the home page of our website, which describes the mission, history, activities, and membership of the Society.
Sinceerely,
CONTINENTAL DIVIDE TRAIL SOCIETY
___________________________
James R. Wolf, Director
Attachments:
Map 1 – LOS CREEK
Map 2 – MONCHEGO PARK
Appeals Deciding Officer
U.S.D.A. Forest Service
Rocky Mountain Region
740 Simms Street
Golden, CO 80401
Re: CDNST and Colorado Trail Reroute: Lujan to La Garita Wilderness
Dear Sir or Madam:
The Continental Divide Trail Society (CDTS) has received and reviewed the environmental assessment and decision notice and finding of no significant impact for the subject project. Our Society submitted substantive written comments and wishes to take this opportunity, pursuant to 36 CFR 215, to file an appeal.
This appeal relates solely to the portion of the decision (pages 30-31) that finds that the access routes to water that we had proposed were eliminated from detailed consideration in this environmental assessment. (The decision, dated May 31, 2013, was made jointly by Dan S. Dallas, Forest Supervisor, Rio Grande National Forest, and Scott G. Armentrout, Forest Supervisor, GMUG National Forests.)
The specific change in the decision that CDTS seeks is to give detailed consideration to the access routes to water in accordance with our proposals. It is our expectation that if the Forest Services carries out a careful review, it will conclude that Los Creek is a desirable water source and tht the proposed CDNST alignment should be modified to take this into account.
THE UNRESOLVED ISSUE: ACCESS TO WATER
We note, first, that one of the issues that had been identified in the predecisional environmental assessment (p.7) as an unresolved conflict requiring alternative analysis to come to decision was: “Alternative or routing preference: Trail needs to be routed so users have access to water.”
There are four documents in the record that respond to this issue, each of which will be recounted in turn:
Predecisional environmental assessment (pp.23-24)
The proposed new alignment follows the ridge or near the ridge of the Continental Divide for most of its length dropping down to live water in only two places: Monchego Park, and Luder’s Campground . Luder’s Campground and Monchego Park are the main sources of water on the proposed route until it starts getting close to Cochetopa Creek.
Monchego Park may benefit from some water source development/improvement, since it is not very fast flowing and leads into a stock pond.
There are two potential water sources just about ¾ of a mile northeast of Monchego Park, but they would require improvement. These are small springs which could potentially provide water.
Four miles southwest of Monchego Park there are two stock ponds about a mile off the proposed alignment on road 787. Humans would not enjoy drinking from this source, but it would be acceptable for stock (Horses, Llamas, etc.).
Three miles further west, on the proposed route, there is a natural pond ¼ mile down road 597, again not optimal for human use, but adequate for stock use.
Then another 3 miles down the proposed alignment (to the south), Cochetopa creek provides good flowing water.
Continental Divide Trail Society Comments
Southbound hikers, in most seasons, will be able to obtain water from Razor Creek, an estimated 7.1 miles north of Lujan Pass. There is also a small streamflow in Lujan Creek, a half mile west of Lujan Pass. There is an evident need for the new segment to be routed so users have access to water at one or more locations along the way, as reflected in the statement of issues on page 7 of the EA.
The EA (p.24) identifies two locations on the proposed new alignment that would afford direct access to live water: Monchego Park and Luder's Campground. We have questions about each of these.
Monchego Park. The EA provides very little information regarding the water here – only that it is "not very fast flowing and leads into a stock pond." For that reason, the water source here may benefit from some ... development/improvement." (There are some small springs about 3/4 mile to the northwest [sic], but a detour of that distance is undesirable.) Let us assume that water of reasonable quality can be expected, with confidence, to be found here; we can only endorse an alignment to Monchego Park as a last resort. As indicated above, we would be displeased by the elevation changes that would be necessitated in order to access Monchego Park; following the ridgeline, through the openings depicted on the topographic maps, would be a more scenic and enjoyable way to proceed.
Luder's Campground. The EA provides little information regarding the water here. The USGS map shows the creek to be ephemeral. Information on the Forest website cautions "NO POTABLE WATER" ... "No drinking water for humans." We are not especially concerned about this (inasmuch as hikers must routinely purify or filter) so long as the stream always flows. But there are other drawbacks as well – camping would be in a developed area rather than an open space, and the schedule might not accommodate some early season hikers.
We believe that Los Creek is the best accessible water source between Lujan Pass and Cochetopa Creek. In the guidebooks that we have published, we have been advising CDNST users, since 1986, that Los Creek "though small ... should prove to be a dependable water source." In all that time, during which we have regularly monitored hikers' journals and other media, we have never received a report that Los Creek was dry. The guidebook mentions "a scenic view out over the grassy valley." (This description refers to the existing alignment, on the Cochetopa Park map; it would probably not be necessary to descend that far, as the headwaters on the North Pass map appear as a perennial stream.) To access Los Creek, realign the route south of Cochetopa Pass through the notch to the east of hill 10165 and intersect the Jakes-Los jeep trail; from this point, we estimate that water would be found no more than 0.5 mile down the jeep trail, with an elevation loss of 300 feet or less. And even if the proposed alignment along the Divide were retained, a spur to Los Creek would be more convenient that the Luder's Spur. Assuming that the Trail is realigned to bypass Monchego Park, the distance between Los Creek and Cochetopa Creek (at the southern end of the reroute) is approximately 19 miles – a longer interval than we like, but manageable.
[The guidebook mentioned above is: James R. Wolf, Guide to the Continental Divide Trail: vol. 5: Southern Colorado, 1986, and revised ed., 1997.)
Environmental Assessment (May 2013)
The proposed new alignment follows the ridge or near the ridge of the Continental Divide for most of its length dropping down to the water in only two places. Monchego Park, and Luder’s Campground. Luder’s Campground and Monchego Park are the main sources of water on the proposed route until it starts getting close to Cochetopa Creek.
Monchego Park may benefit from some water source development/improvement since it is not very fast flowing and leads into a stock pond. There are two potential water sources about ¾ of a mile northeast of Monchego Park, but they would require improvement. These are small springs which could potentially provide water. There is no proposal to develop either of these water sources at this time.
[Figure 3-5. Spring near Monchego Park]
Four miles southwest of Monchego Park there are two stock ponds about a mile off the proposed alignment on road 787 that could provide a source of treatable water.
[Figure 3-6 (unidentified) stock pond]
Three miles further west on the proposed route there is a natural pond ¼ mile down road 597 which couls serve as water source. Another 3 miles south down the proposed alignment Cochetopa Creek provides good, flowing water.
Decision Notice [pp. 30-31]
[Develop trail so there is access to water at the following locations] The following access routes to water were considered but eliminated from detailed consideration in this EA.
- [CDTS Comment] Southbound hikers, in most seasons, will be able to obtain water from Razor Creek, an estimated 7.1 miles north of Lujan Pass.
- [CDTS Comment] There is also a small streamflow in Lujan Creek, a half mile west of Lujan Pass. There is an evident need for the new segment to be routed so users have access to water at one or more locations along the way.
- [CDTS Comment] Let us assume that water of reasonable quality can be expected, with confidence, to be found here; we can only endorse an alignment to Monchego Park as a last resort. As indicated above, we would be displeased by the elevation changes that would be necessitated in order to access Monchego Park; following the ridgeline, through the openings depicted on the topographic maps, would be a more scenic and enjoyable way to proceed [along the CDNST]. We request reconsideration of the proposal to descend to Monchego Park (900 foot elevation loss) and ascend a similar amount to return to the Continental Divide. West of Saguache Park Road (787), the proposed route may minimize potential conflict with motorized users traveling on the mapped jeep trail; it might nevertheless be worthwhile to remain closer to contour if the blue spots on the map represent likely sources of decent water or if the open terrain offers greater scenic opportunities than would be the case for the wooded ridgeline of the Divide.
- [CDTS Comment] Luder's Campground. The EA provides little information regarding the water here. The USGS map shows the creek to be ephemeral. Information on the Forest website cautions "NO POTABLE WATER" ... "No drinking water for humans."
- [CDTS Comment] Los Creek is the best accessible water source between Lujan Pass and Cochetopa Creek. Los Creek "though small ... should prove to be a dependable water source." To access Los Creek, realign the route south of Cochetopa Pass through the notch to the east of hill 10165 and intersect the Jakes-Los jeep trail; from this point, we estimate that water would be found no more than 0.5 mile down the jeep trail, with an elevation loss of 300 feet or less.
- [CDTS Comment] If the proposed alignment along the Divide were retained, a spur to Los Creek would be more convenient that the Luder's Spur. Assuming that the Trail is realigned to bypass Monchego Park, the distance between Los Creek and Cochetopa Creek (at the southern end of the reroute) is approximately 19 miles.
DISCUSSION OF WATER SOURCES
There is general agreement that there are acceptable water sources at the terminal points of the analysis area (Lujan/Spanish Creek to the north, Cochetopa Creek to the south). The proposed alignment between these points is 31.2 miles. We regard this as an “excessive” distance within the meaning of FSM 2353.44b(9), calling for consideration of development and protection of water sources for users of the CDNST.
A. From north to south, these are the water sources that have been reviewed by the Forest Service.
- Luder’s Creek. As CDTS noted, The USGS map shows the creek to be ephemeral. Information on the Forest website cautions "NO POTABLE WATER" ... "No drinking water for humans." Primarily because of reliability concerns, we do not consider this to be an acceptable water source. (The Forest Service seems to agree. “There is no reliable water in this creek,” supra, Decision Notice, p.31).
- Monchego Park. Figure 3-1b clearly depicts the proposed alignment as descending from the Divide to the vicinity of Monchego Park (which is shown as extending some one or two miles north of the new CDNST route). The decision notice advises, however, that there is no proposal in front of GMUG to consider a route to Monchego Park from the proposed CDNST.
The EA does not display any water sources in Monchego Park or any trail that would connect the CDNST to them. The only such sources in the vicinity are two small springs said to be about ¾ of a mile northeast of Monchego Park.
These springs are described only vaguely, without any means of getting to them, and no mention of potential conflict with motorized vehicles or other management activities. They apparently would require improvement (which is not currently contemplated) of unstated cost and feasibility. Even if these springs are reliable throughout the year (for which no hydrologic evidence is supplied), their remoteness from the proposed alignment and the Divide make them unacceptable in our view unless there is absolutely no feasible alternative.
See attached Map 2 – MONCHEGO PARK, which shows the proposed CDNST alignment, Monchego Park, and the springs in relationship to one another.
- Road 787. There are two stock ponds about a mile off the proposed alignment on road 787. Humans would not enjoy drinking from this source.
- Road 597 . There is a natural pond ¼ mile down road 597, again not optimal for human use. Once more, water quality would make this an undesirable water source. But even if the quality were better, its proximity to Cochetopa Creek (only 3 miles) makes it irrelevant, inasmuch as there would still be a dry segment of nearly 30 miles between this location and the north end of the analysis area.
Los Creek is a desirable water source because it is a reliable flowing stream, in an attractive natural setting, in close proximity to the CDNST (especially if the proposed trail is slightly realigned). Based upon our knowledge of this stream along with the serious disadvantages of all the sources identified by the Forest Service, we have no doubt that its recognition would best serve the nature and purpose of the CDNST to provide a high-quality scenic, primitive hiking opportunity.
. As noted in our comments, we have been advising CDNST users, in our guidebook (first published in 1986), that Los Creek "though small ... should prove to be a dependable water source." In all the years since then, during which we have regularly monitored hikers' journals and other media, we have never received a report that Los Creek was dry. The guidebook mentions "a scenic view out over the grassy valley." (This description refers to the existing alignment, on the Cochetopa Park map; it would probably not be necessary to descend that far, as the headwaters on the North Pass map appear as a perennial stream.)
The environmental assessment supports this appraisal by citing the description by Tom Lorang Jones (EA, p.37) that mentions the “idyllic country lane” and Los Creek itself (with no suggestion that it may be dry at times).
A further advantage of Los Creek is that it would not require development. (However, as in the case of any natural resource along the CDNST corridor, future planning and management should include appropriate measures of conservation, in accordance with the nature and purpose statement of the CDNST Comprehensive Plan.)
THE FOREST SERVICE OBJECTIONS
A. Los Creek
The decision rejected access to Los Creek for the following stated reasons:
- Because this option includes using the existing transportation system which includes motorized use, that is accessible from the proposed trail route on the Divide, realigning the trail onto the Jeep trail is not being considered in this analysis due to the inconsistency with the Act.
- Creating a trail in this area is not as consistent with The Act as keeping it on the Divide and would further be difficult to manage because of the proximity to existing roads and other ongoing management activities.
1. Realigning the trail onto the Jeep trail is not being considered in this analysis due to the inconsistency with the Act.
CDTS did not propose realigning the CDNST onto the Jeep trail. Whether or not our proposal is adopted the CDNST will make one perpendicular crossing of the Jakes-Los jeep trail (identified, somewhat illegibly as road 7823.16? on Figure 3-1a). There is no inconsistency with the National Trails System Act.
2. Creating a trail in this area is not as consistent with the Act as keeping it on the Divide.
According to the CDNST Comprehensive Plan (IV.B.1.c.(2), p.9), “deviation from routes that more closely follow the geographic Divide is acceptable under the following circumstances:
....
(c) To access significant … recreational … opportunities.”
Facilitating access to Los Creek is definitely a significant recreational opportunity, in view of the creek’s status as a uniquely reliable and readily treatable water source in a 30+ mile segment of the CDNST.
Moreover, the Forests’ objections are directly at odds with the alignment proposed in the EA that deviates from the Divide for several miles in the vicinity of Monchego Park. The only justification that we can envisage for that deviation is potential access to water — but, as we have discussed above, water opportunities there are ill-defined as to location and questionable as to reliability, quality, and need for development. But if there is any merit in deviating near Monchego Park, there should hardly be any concern about a much smaller realignment near Los Creek.
3. Creating a trail in this area ... would further be difficult to manage because of the proximity to existing roads and other management activities.
This assertion is ambiguous with respect to the trail that would be created and that allegedly might be difficult to manage..
-- With respect to the CDNST itself. There are two possible alignments of the CDNST. One is the route proposed in the EA. The other is the CDTS suggested realignment “south of Cochetopa Pass … through the saddle east of hill 10165.” In neither case would the route be in proximity to any roads (except for their common crossing of 7823.16). There is no hint as to why other management activities might be impacted differently by the selection of one of these routes or the other.
-- With respect to road 7823.16. There would be nothing unusual about utilizing an existing road to provide access to water off the CDNST itself. The environmental assessment accepts the suitability of such road use at many places — for example, to Lujan/Spanish Creek, on Road 787, on Road 597, etc. There is no reason to believe that the use of the Jakes-Los jeep trail would give rise to additional management actions.
-- With respect to a spur trail such as the one planned for access to Luders Campground. CDTS did mention the prospect of “a spur to Los Creek” that would be more convenient than the Luder’s Spur. In context, this “spur” was intended to refer to Road 7823.16 and would not involve the construction of any new trail. As a new spur trail was not meant to be read as part of our proposal , any impacts associated with its creation are irrelevant. (We would be pleased, however, if the Forest Service were to consider creating such a nonmotorized spur route, either in the resolution of this appeal or otherwise.)
See attached Map 1 – LOS CREEK, which shows the alignment of the proposed in the environmental assessment along with the route proposed by appellant. (This map is intended to shed light on the issues discussed above. The exact route should be selected taking field surveys into account.)
B. Monchego Park
As quoted above, CDTS referred to an alignment to Monchego Paark as a last resort. “Hikers would be displeased by the elevation changes that would be necessitated in order to access Monchego Park. Following the ridgeline, through the openings depicted on the topographic maps, would be a more scenic and enjoyable way to proceed along the CDNST. We request reconsideration of the proposal to descend to Monchego Park (900 foot elevation loss) and ascend a similar amount to return to the Continental Divide.”
The Forests did not respond to the substance of this proposal. Instead, the decision notice declares that “there is no proposal in front of GMUG to consider a route to Monchego Park from the proposed CDNST.”
Perhaps technically the proposed alignment does not enter Monchego Park. Yet it is surely clear that appellant was questioning the deviation (which drops off the Continental Divide for several miles) in that vicinity. For, if the La Garita-Lujan segment is designed so as to take advantage of water access at Los Creek, then keeping to the Divide while looking out over Monchego Park would be far more scenic, recreationally enjoyable, and removed from motorized areas.
As a general approach, the decision notice (p.30) declares that “the proposed route has been considered for the gentlest grades possible while staying as near to the divide as practicable.” We agree with that principle. The Forest Service should adhere to it here unless it articulates good reasons to do otherwise.
Once again, please refer to Map 2 – MONCHEGO PARK.
APPEAL CONTENT – 36 CFR § 215.14
The requirements of 36 CFR 215.14(b) (1-5) are addressed elsewhere in this document.
(6) Changes in the decision and rationale.
The changes in the decision that appellant seeks are:
- · Give detailed consideration to the access routes to water in accordance with our proposals. The rationale for this change is that Los Creek is a very good water source – in our judgment superior to any water source reviewed in the environmental assessment. An EA that sets out to resolve an issue regarding access to water is deficient if it fails to take a hard look at an alternative that on its face is reasonable (and superior, we claim) and lawful.
- · Consider relocating the proposed alignment so as to facilitate access to Los Creek. The rationale for this change is that a reduction of the elevation change required to obtain water from Los Creek would serve the nature and purpose of the CDNST by enhancing the quality of the recreation experience.
- · Consider relocating the proposed alignment so as to follow the Continental Divide closely instead of descending to the vicinity of Monchego Pass. The rationale for this change is that hiking close the Divide should always be preferred unless one of the acceptable reasons for deviation (as stated in the Comprehensive Plan) is present. If satisfactory water access is found to be available at Los Creek, there would no longer be any justification for the Monchego Park detour of several miles. (If there is any other justification, it has not been mentioned in the environmental assessment.)
(7) Portions of the decision with which the appellant disagrees.
· The portion of the decision with which we disagree is the portion (pp. 30-31) that is headed “Develop trail so there is access to water at the following locations.” A full explanation of the disagreement is provided above under the caption THE FOREST SERVICE OBJECTIONS.
(8) Why appellant believes the decision failed to consider the substantive comments.
· We can only speculate as to the reason that the Responsible Official decided not to consider appellant’s substantive comments, but we suggest that it may be a failure to appreciate fully the importance of ready access to water for users — especially hikers — on the Continental Divide National Scenic Trail (CDNST).
(9) How the appellant believes the decision violates law, regulation, or policy
- · National Trails System Act (16 U.S.C. 1241 et. seq.) “National scenic trails … will be extended trails so located as to provide for maximum outdoor recreation potential and for the conservation and enjoyment of the nationally significant scenic, historic, natural, or cultural qualities of the areas through which such trails may pass.” (Sec. 3(a)(2)). Pursuant to this Act, the Secretary of Agriculture has published a “comprehensive plan (CMP)for the management, and use of the [CDNST], including … specific objectives and practices to be observed in the management of the trail.” Sec. 5(f).
The CMP (IV.A.) defines the nature and purposes of the CDNST as follows:
“The primary policy is to administer the CDNST consistent with the nature and purposes for which this National ScenicTrail was established. The nature and purposes of the CDNST are to provide for high-quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along the CDNST corridor.”
The CMP (IV.B.8b.) specifically authorizes access to water sources by side trails where it is feasible to do so.
The decision violates this Act by failing to offer an achievable high-quality primitive hiking opportunity that would provide for the maximum outdoor recreation potential of the CDNST and the enjoyment of the qualities of the areas between La Garita and Lujan. A hiking trail segment that extends over 30 miles without access to reliable and treatable water sources cannot be viewed as “high-quality,” especially where the adoption of a reasonable alternative would eliminate that deficiency. Improved access to Los Creek, along with the other modifications we have proposed, would help to maximize the outdoor recreation potential.
- · National Environmental Policy Act (42 U.S.C. § 4321 et seq) and regulations of the Council on Environmental Quality (40 C.F.R. parts 1500-1508).
CEQ regulations direct that an environmental assessment shall include a discussion of the environmental impacts of the proposed action and alternatives. 40 C.F.R. § 1508.13 (and § 1507.2(d) , extending this to alternatives in any proposal which involves unresolved conflicts concerning alternative uses of available resources — not limited to impact statements).
Agencies have a responsibility to “rigorously explore and objectively evaluate all reasonable alternatives. 40 C.F.R. § 1502.14(a). If an alternative is eliminated from detailed study, the agency shall “briefly discuss the reasons for their having been eliminated.” Ibid.
The policies applicable to environmental impact statements have been summarized in this way:
NEPA requires agencies to take a “hard look” at the environmental consequences of their actions by preparing an EIS for each “major Federal action significantly affecting the equality of the human environment … The EIS must “provide [a] full and fair discussion of significant environmental impacts” so as to “inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” The Lands Council v. McNair, 537 F. 3d 981, 1000-01 [citations omitted].
As the consideration of the current project includes unresolved conflicts regarding alternative uses of available water sources, the same policies need to be followed in this environmental assessment.
The reasons for eliminating an alternative may be discussed briefly, but they must be the result of a “hard look.” In this case, there was no look whatsoever at the hydrological characteristics of Los Creek, nor (as explained above) any reasoned basis for excluding it from consideration. If a goal is to enhance the quality of the human environment, reasonable alternatives to do so must be assessed. (The “human environment” includes “the relationship of people with that environment” 40 CFR § 1508.14, and few matters are more central to that relationship than availability and quality of water.) In our view, the Forest Service was obliged to “rigorously explore and objectively evaluate all reasonable alternatives” (even in the case of an environmental assessment instead of an environmental impact statement), 40 C.F.R. §1502.14(a) and so far it has failed to do so.
- · Administrative Procedures Act (5 U.S.C. $ 500 et seq.)
The decision not to give detailed consideration to water access at Los Creek should be set aside because it is arbitrary and capricious. 5 U.S.C. § 706(2)(A).
An agency decision can be found arbitrary and capricious where the agency “entirely failed to consider an important aspect of the problem.” Motor Vehicles Mfrs. Assn. v. State Farm, 463 U.S. at 43. The environmental assessment failed to consider the desirability of Los Creek as a water source that would resolve an important part of the problem— namely, the excessive distance between suitable water sources in the project area.
A reviewing court (or, in this case, the Appeals Deciding Officer) “must ensure that an agency has taken a ‘hard look’ at the environmental consequences of its proposed action … carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors.” Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 980 (9th Cir. 1993). The environmental assessment’s evaluation took a hard look at Luder’s Campground and concluded that it should not be considered as a water source. The EA alluded to springs in the vicinity of Monchego Park, but failed to state their location or their distance from the proposed alignment. And, although it recognized a potential need for development, it gave no indication of the nature or feasibility of potential improvements.
And, most importantly, the EA did not take a hard look at the qualities of Los Creek that appellant had identified as a possible alternative water source. The other factors cited were erroneous as a matter of fact (use of road instead of trail), contrary to applicable policy set out in the CDNST Comprehensive Plan (deviation from the Continental Divide to access water resources), or in direct conflict with other approved uses (use of side roads to access water sources) There is no rational connection between the facts set out in the environmental assessment and the decision not to give detailed consideration to appellant’s proposals.
CONCLUSION
The specific changes in the decision that Appellant seeks, and rationale for those changes, have been set out above and will not be repeated.
We note, however, that the issues we have raised relate only to that portion of the project area between Cochetopa Pass (Colorado Highway 140) and Forest Road 787. We would have no objection to a decision on appeal that stays construction between those two roads, yet allows all work to proceed as proposed at the North Pass and Cochetopa Creek terminal segments.
I am familiar with the provisions pertaining to the informal disposition of an appeal (36 CFR 215.17). I would be available to discuss resolution of the issues informally, but only by telephone conference. Please note that I expect to be on travel for several weeks and may not receive postal or telephone communications. If you do wish to contact me, with regard to informal disposition or any other matter, please do so by sending me an e-mail message addressed to jim@cdtsociety.org.
We invite you to view the home page of our website, which describes the mission, history, activities, and membership of the Society.
Sinceerely,
CONTINENTAL DIVIDE TRAIL SOCIETY
___________________________
James R. Wolf, Director
Attachments:
Map 1 – LOS CREEK
Map 2 – MONCHEGO PARK
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