Mesa del Camino - CDTS Appeal
PART 1 - COMMENT LETTER
September 27, 2013
Mr. Andrew D. Vigil
District Ranger
Coyote Ranger Station
HC78 Box 1
Coyote, NM 87012
Re:The Camino Mesa NSCDT Segment
Dear Mr. Vigil:
We are writing in response to your invitation for comment on the subject proposed project.
We wish to identify and discuss two issues for your consideration:
Provide for Maximum Outdoor Recreation Potential
The NSCDT is a trail of approximately 3100 miles, extending along the Continental Divide between the boundaries of Canada and Mexico. As a Congressionally designated area, its management must conform to the provisions of the National Trails System Act, as amended (the Trails Act).
The Trails Act calls for a scenic trail such as the NSCDT to be “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.” (16 USC § 1242(a)(2)). The 2009 Comprehensive Plan for the NSCDT sets forth as its primary policy the administration of the Trail consistent with the nature and purposes for which this National Scenic Trail was established. Specifically, the nature and purposes of the Trail are declared to be “to provide for high-quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along the [NSCDT] corridor.”
Based upon these policies, the selection of a route for the Trail should, among other things, strive to:
There are serious drawbacks, however, to the current proposal. We identified these in our letter to Mr. Phillips in your office dated August 9, 2013, where we advised as follows:
From a hiker’s perspective, however, the “proposed CDNST location” depicted on the map you sent us for review leaves much to be desired – specifically in the northernmost section where the route of travel, in either direction, would require a 300 foot climb followed by a 300-foot descent in close proximity to one another. This appears to be what is often characterized as a PUD (‘pointless up and down”).
We believe it is highly likely that many hikers would simply opt to continue to follow FR 468 instead of using the proposed relocated Trail. We hope, rather, that the new route might be sufficiently attractive that users will gladly make it their route of travel.
Accordingly, we ask that you take a look at two alternatives that might mitigate the elevation-change issue while still removing the CDNST from FR 468. Our preference would be to proceed with your proposed relocation for the entire project from the center of Section 36 south, but adopting a contouring alignment (at or about 7800 feet) from there to the existing trail that descends to Ojitos Canyon. (See the attached map marked “A”). If for any reason this should not be practicable, then our recommendation would be to route the Trail fairly close – yet still removed from – the road. (See the attached map marked “B”).
We recognize that details of location might require fine tuning in the light of field surveys. So, please feel free to adjust the specifics of our proposals as may therefore be indicated.
[The observations submitted in August continue to express our views. Copies of Maps A and B are enclosed with this letter.]
The Selection of a Location Should Be Based Upon an Environmental Assessment
According to the provisions of 30 CFR 220.6, insofar as relevant here, “a proposed action may be categorically excluded from further analysis and documentation in EIS or EA only if there are no extraordinary circumstances related to the propose action and … the proposed action is within a category listed in §220.6(e).”
Extraordinary circumstances
§220.6(b) (1) “Resource conditions that should be considered in determining whether extraordinary circumstances related to a proposed action warrant further analysis and documentation in an EA or an EIS are:
… (iii) Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas…
(2) The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion (CE). It is the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions, and if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determines whether extraordinary circumstances exist.
§220.6(c) If the responsible official determines, based on scoping, that it is uncertain whether the proposed action may have a significant effect on the environment, prepare an EA. …
Resource conditions pertinent to this project include the existence of Congressionally designated areas – both the NSCDT itself (a national scenic trail) and the Chama River Canyon Wilderness. The cause-effect relationship is (1) the impairment of the recreational potential and opportunities for enjoyment (an element of the environment) resulting from the unnecessary and undesirable elevation changes and (2) the inducement that the elevation changes will provide for hikers to walk along the road instead of the new trail. In our judgment, the degree of these effects is significant – but even if it is uncertain whether the proposed action may have a significant effect on the environment, an environmental assessment should be prepared.
Categories within §220.6(e) Categories of actions for which a project or case file and decision memo are required.…
(1) Construction and reconstruction of trails. Examples include, but are not limited to:
(i) Constructing or reconstructing a trail to a scenic overlook, and
(ii) Reconstructing an existing trail to allow use by handicapped individuals.
Even leaving aside the extraordinary circumstances concerns, the construction of a new trail of 2.5 miles is qualitatively and quantitatively different from the examples recited in the regulation. The scenic overlook brings to mind a short spur from an existing trunk route – more on the order of .25 mile instead of 2.5 miles. The handicapped individuals example also refers to actions taken on an existing trail.
The regulation might, of course, have included within this section “Constructing or reconstructing a trail.” Limiting the example to the case of taking this action “to a scenic overlook” clearly indicates that only projects of small scale should be the subject of categorical exclusions. Similarly, it is to be expected that the environmental impacts of reconstruction of an existing trail would ordinarily be of lesser significance than entirely new construction, especially if the project is several miles in length.
In short, the proposed action does not constitute an activity within the scope of §220.6(e) and even if it did, extraordinary circumstances call for the preparation of an environmental assessment.
Requirements of 36 CFR 215.6
These comments are provided by the Continental Divide Trail Society on behalf of its 250 members, including myself, with respect to the Camino Mesa NSCDT Segment. For the reasons stated above, (1) we disagree with the assertion, with respect to the proposed action, that the trail would meet the standards of the Trails Act and the NSCDT Comprehensive Plan of 2009 and (2) we disagree that the project should be proposed under a categorical exclusion (since it does not fall within the intended scope of §220.6(e)(1) and there are extraordinary circumstances having a significant effect on NSCDT resource conditions).
September 27, 2013
Mr. Andrew D. Vigil
District Ranger
Coyote Ranger Station
HC78 Box 1
Coyote, NM 87012
Re:The Camino Mesa NSCDT Segment
Dear Mr. Vigil:
We are writing in response to your invitation for comment on the subject proposed project.
We wish to identify and discuss two issues for your consideration:
- The location of the segment should be modified in order 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.”
- Where reasonable alternatives for the location of a 2.5-mile segment of the Continental Divide National Scenic Trail have been identified, these alternatives should be reviewed in an environmental assessment.
Provide for Maximum Outdoor Recreation Potential
The NSCDT is a trail of approximately 3100 miles, extending along the Continental Divide between the boundaries of Canada and Mexico. As a Congressionally designated area, its management must conform to the provisions of the National Trails System Act, as amended (the Trails Act).
The Trails Act calls for a scenic trail such as the NSCDT to be “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.” (16 USC § 1242(a)(2)). The 2009 Comprehensive Plan for the NSCDT sets forth as its primary policy the administration of the Trail consistent with the nature and purposes for which this National Scenic Trail was established. Specifically, the nature and purposes of the Trail are declared to be “to provide for high-quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along the [NSCDT] corridor.”
Based upon these policies, the selection of a route for the Trail should, among other things, strive to:
- Provide for maximum outdoor recreation potential
- Enhance enjoyment of the qualities of the areas through which the trail passes
- Provide for high-quality primitive hiking and horseback riding opportunities
There are serious drawbacks, however, to the current proposal. We identified these in our letter to Mr. Phillips in your office dated August 9, 2013, where we advised as follows:
From a hiker’s perspective, however, the “proposed CDNST location” depicted on the map you sent us for review leaves much to be desired – specifically in the northernmost section where the route of travel, in either direction, would require a 300 foot climb followed by a 300-foot descent in close proximity to one another. This appears to be what is often characterized as a PUD (‘pointless up and down”).
We believe it is highly likely that many hikers would simply opt to continue to follow FR 468 instead of using the proposed relocated Trail. We hope, rather, that the new route might be sufficiently attractive that users will gladly make it their route of travel.
Accordingly, we ask that you take a look at two alternatives that might mitigate the elevation-change issue while still removing the CDNST from FR 468. Our preference would be to proceed with your proposed relocation for the entire project from the center of Section 36 south, but adopting a contouring alignment (at or about 7800 feet) from there to the existing trail that descends to Ojitos Canyon. (See the attached map marked “A”). If for any reason this should not be practicable, then our recommendation would be to route the Trail fairly close – yet still removed from – the road. (See the attached map marked “B”).
We recognize that details of location might require fine tuning in the light of field surveys. So, please feel free to adjust the specifics of our proposals as may therefore be indicated.
[The observations submitted in August continue to express our views. Copies of Maps A and B are enclosed with this letter.]
The Selection of a Location Should Be Based Upon an Environmental Assessment
According to the provisions of 30 CFR 220.6, insofar as relevant here, “a proposed action may be categorically excluded from further analysis and documentation in EIS or EA only if there are no extraordinary circumstances related to the propose action and … the proposed action is within a category listed in §220.6(e).”
Extraordinary circumstances
§220.6(b) (1) “Resource conditions that should be considered in determining whether extraordinary circumstances related to a proposed action warrant further analysis and documentation in an EA or an EIS are:
… (iii) Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas…
(2) The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion (CE). It is the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions, and if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determines whether extraordinary circumstances exist.
§220.6(c) If the responsible official determines, based on scoping, that it is uncertain whether the proposed action may have a significant effect on the environment, prepare an EA. …
Resource conditions pertinent to this project include the existence of Congressionally designated areas – both the NSCDT itself (a national scenic trail) and the Chama River Canyon Wilderness. The cause-effect relationship is (1) the impairment of the recreational potential and opportunities for enjoyment (an element of the environment) resulting from the unnecessary and undesirable elevation changes and (2) the inducement that the elevation changes will provide for hikers to walk along the road instead of the new trail. In our judgment, the degree of these effects is significant – but even if it is uncertain whether the proposed action may have a significant effect on the environment, an environmental assessment should be prepared.
Categories within §220.6(e) Categories of actions for which a project or case file and decision memo are required.…
(1) Construction and reconstruction of trails. Examples include, but are not limited to:
(i) Constructing or reconstructing a trail to a scenic overlook, and
(ii) Reconstructing an existing trail to allow use by handicapped individuals.
Even leaving aside the extraordinary circumstances concerns, the construction of a new trail of 2.5 miles is qualitatively and quantitatively different from the examples recited in the regulation. The scenic overlook brings to mind a short spur from an existing trunk route – more on the order of .25 mile instead of 2.5 miles. The handicapped individuals example also refers to actions taken on an existing trail.
The regulation might, of course, have included within this section “Constructing or reconstructing a trail.” Limiting the example to the case of taking this action “to a scenic overlook” clearly indicates that only projects of small scale should be the subject of categorical exclusions. Similarly, it is to be expected that the environmental impacts of reconstruction of an existing trail would ordinarily be of lesser significance than entirely new construction, especially if the project is several miles in length.
In short, the proposed action does not constitute an activity within the scope of §220.6(e) and even if it did, extraordinary circumstances call for the preparation of an environmental assessment.
Requirements of 36 CFR 215.6
These comments are provided by the Continental Divide Trail Society on behalf of its 250 members, including myself, with respect to the Camino Mesa NSCDT Segment. For the reasons stated above, (1) we disagree with the assertion, with respect to the proposed action, that the trail would meet the standards of the Trails Act and the NSCDT Comprehensive Plan of 2009 and (2) we disagree that the project should be proposed under a categorical exclusion (since it does not fall within the intended scope of §220.6(e)(1) and there are extraordinary circumstances having a significant effect on NSCDT resource conditions).
PART 2 - APPEAL
December 10, 2013
Maria T. Garcia, Appeal Deciding Officer
Santa Fe National Forest Service
11 Forest Lane
Santa Fe, NM 87505
Re: National Scenic Continental Divide Trail (NSCDT) Coyote Segment Project
Dear Ms. Garcia:
This letter is the Continental Divide Trail Society’s appeal, under 36 CFR Part 215, of the Decision Memo signed by Andrew D. Vigil, District Ranger, Coyote Ranger District, on November 22, 2013 with respect to the subject project.
Our concerns, which form the basis of our appeal, were stated in our comment letter of September 30, 2013; our letter was cited in the decision memo and is incorporated herein by reference.
The first ground for this appeal is that the decision does not conform to the guidance of the 2009 Comprehensive Plan “to provide for high-quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along the [NSCDT] corridor.” Neither the invitation for comment nor the decision memo support essential findings that the route selection will strive (in accordance with the National Trails System Act and the Comprehensive Plan) to:
- Provide for maximum outdoor recreation potential
- Enhance enjoyment of the qualities of the areas through which the trail passes
- Provide for high-quality primitive hiking and horseback riding opportunities
In response to our comments, the decision memo says only that the District Ranger considered our concern of creating a PUD “that could force hiker back to the road” and “reassessed the proposed alignment and concluded that the proposed trail avoids many difficult terrain and topographic barriers and is just as likely to be used or not when compared to their proposed alignments.”
First, we did not assert that the PUD would force hikers to use FSR 468. On the contrary, we indicated only that the PUD on the proposed trail would disappoint and dishearten hikers, with the result that a substantial percentage of them would follow the motorized route instead. If either of the alternatives we identified (on Map A and Map B) were selected, we are confident that all or nearly all would use the more attractive, nonmotorized, trail. We disagree with the decision’s declaration that the Forest’s proposed route “is just as likely to be used or not when compared to [CDTS] proposed alignments.” The decision memo offers no analysis to support this conclusion, which we consider to be unfounded and wrong.
It should be kept in mind that hikers routinely depart from the officially designated route of the NSCDT to take advantage of opportunities to enhance their recreational experience. Consider, for example, the pattern of use between Ojitos Canyon and Harris Bear Spring, where virtually all trail users follow the undesignated road along the Rio Chama and visit the hospitable and scenic Ghost Ranch before proceeding up to and beyond Yeso Tank. In another instance, many hikers elect to cross the summit of Mount Taylor rather than traveling around the west flank of the mountain on the designated route. (In this case, hikers deliberately take a route with greater elevation gain – but they do so because the views are outstanding and offer a more satisfying recreational experience; the up-and-down there is far from pointless.)
We certainly would prefer to have the Forest Service provide a trail route that everyone willingly and cheerfully follows, but the proposed trail would not achieve this goal.
Second, the decision memo states that “we assessed the proposed alignment and concluded that the proposed trail avoids many difficult terrain and topographic barriers.” As it stands, this is merely a conclusory assertion, with no factual support. Our examination of topographic maps of the area reveal no obstacles that would prevent construction of a trail along either of the alternatives we identified. The record does not show that the Forest Service has, in fact, taken a “hard look” at reasonable alternatives submitted for consideration in a timely fashion. Further, whatever issues may be raised with respect to our preferred route (Map A), it is difficult to perceive how they might interfere with implementation of the Map B alternative.
Third, no adequate justification has been provided for categorically excluding the proposal from further analysis and documentation in an EIS or EA. The decision memo states that this project is categorically excluded from such documentation under 36 CFR 220.6(e)1: Construction and reconstruction of trails.
The problem with this is that it overlooks the remainder of the cited authority, which limits this exclusion to projects that are similar to the specific examples in the regulation (constructing or reconstructing a trail to a scenic overlook or reconstructing an existing trail to allow use by handicapped individuals). Under the reading in the decision memo, an EA or EIS would be unnecessary irrespective of the nature or magnitude of the project, so long as it was a construction or reconstruction of a trail. That is obviously not the case.
Moreover, our comment letter specifically referred to extraordinary circumstances that would call for further analysis under 30 CFR 220.6 – the fact that the segment under review is a Congressionally designated area, with a significant cause-effect relationship between the proposed action and the resource conditions.
The decision memo gives no indication that the District Ranger considered the limitation of a categorical exclusion (1) where the proposal is substantially different from the examples presented in the regulation or (2) where extraordinary circumstances exist and the proposed action may have a significant effect on the human environment (which includes recreational potential and opportunities for enjoyment).
Appeal Content – 36 CFR 215.14
The requirements of 36 CFR 215.14(b)(1-5) are addressed elsewhere in this document.
(6) The changes in the decision that appellant seeks are:
- Include in the decision (or attachments) an analysis of the proposed trail and appellant’s proposed alternatives, including reports of investigations undertaken and relied upon by the District Ranger in arriving at his published decision, reports of similar investigations (if any) performed after issuance of the decision, identification of specific locations along each of appellant’s proposed alternatives that are deemed to be “difficult terrain” or “topographic barriers” with an explanation of how such features are significantly different and disadvantageous in comparison to conditions to be encountered along the proposed trail alignment, profiles of each alternative showing elevation changes and distances, and any other information deemed significant in selecting an alignment for the trail. (As stated in the comment letter of September 30, 2013, appellant’s routes may be fine-tuned in the light of field surveys – for example, moving a few yards one way or the other to bypass readily avoidable obstacles – so long as the alternative in question remains substantially unchanged. This may help to assure that the evaluation is conducted in an unbiased fashion.)
- Include in the decision (or attachments) an assessment of the recreational potential associated with the selection of each of the alternatives, taking into account elevation changes, treadway surface and maintenance, scenic viewing opportunities, and other factors considered to be important.
- Withdraw the decision pending completion of an environmental assessment, or include justification of a categorical exclusion notwithstanding the extraordinary circumstance of the segment constituting part of a Congressionally designated area and the differences in kind between this project and the examples of trail projects for which the applicable regulation declares a categorical exclusion to be appropriate.
- Revise the incorrect statement that appellant asserted that a pointless up and down could “force” hikers back to the road. Consider the likelihood that some hikers may choose to follow the road and avoid the proposed trail (if selected and constructed), taking into account such examples as have been described in this appeal; and evaluate how this eventuality might impact achievement of the goals of the National Trails System Act and Comprehensive Plan cited above.
- The assertion that the project is categorically excluded from documentation in an Environmental Assessment or Environmental Impact Statement.
- The assertion that “the proposed trail avoids many difficult terrain and topographic barriers and is just as likely to be used or not when compared to their proposed alignments.
- The assertion that “no significant issues were raised during scoping.” In fact, appellant’s scoping letter of August 9, 2013 raised precisely the same issues. In addition, our communications regarding relocation of this trail segment go back at least as far as May 11, 1999, when we responded to a request for comments, file code 2310, dated May 7, 1999 from District Ranger John P. Miera. We noted that the map Mr. Miera provided did not provide sufficient detail for us to be certain, yet “your proposal is exceptional in every respect, both as to the alignment you have identified and your recognition of the need to separate the Trail from motorized travelways whenever possible.” The proposed trail depicted on the map attached to that letter shows the route descending gradually to the wilderness boundary, just as we have recommended on Map A, without any hint that it would involve the pointless up-and-down to which we object. A copy of this 1999 map is attached hereto as Map C.
- We can only speculate as to the reason that the District Ranger apparently failed to consider our substantive comments with care. Without any documentable basis, we decline to do so.
- 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 [Continental Divide National Scenic Trail], including … specific objectives and practices to be observed in the management of the trail.” Sec. 5(f).
“The primary policy is to administer the CDNST consistent with the nature and purposes for which this National Scenic Trail 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 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 through which it passes. A high-quality opportunity avoids pointless ups-and-downs, which stand in the way of providing maximum outdoor recreation potential and lessen hikers’ enjoyment of the qualities along the route.
- National Environmental Policy Act (42 U.S.C. 4321 et seq.) and regulations of the Council on Environmental Quality (40 CFR parts 1500-1508).
CEQ regulations direct that an agency shall “study, develop, and describe alternatives to recommended courses of action in any proposal.” This requirement of NEPA extends to all proposals, which would include the project here under consideration. 40 CFR 1507.2 (d).
In satisfying this direction, an agency must do more than pronounce that it has made a study and finds that its own preferred alternative is best. A study and description of alternatives should include identification of methodologies and explicit reference to sources relied upon for its conclusions (40 CFR 1502.24), and the agency must “rigorously explore and objectively evaluate all reasonable alternatives.” 40 CFR 1502.14(a). The environmental information is to be available to public officials and citizens before decisions are made and before actions are taken. Accurate scientific analysis, expert agency comments, and public scrutiny are essential. 40 CFR 1500.1(b).
The effort and resources needed to comply with these requirements will depend upon the scope of the alternatives and the kinds of information that are relevant to making a decision. In the present case, we believe that the changes in the decision that we have outlined above (in section (6)) would suffice. In this manner, the decision would “provide full and fair discussion of significant environmental impacts and … inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 CFR 1502.1, 1507.2(d). Such a discussion (a “hard look”), available to decisionmakers and the public, is needed in order to comply with the National Environmental Policy Act.
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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. You can reach me for this purpose by mail, phone, or by e-mail addressed to jim@cdtsociety.org . We invite you to view our mission, history, activities, and membership at www.cdtsociety.org.
Sincerely yours,
________________________________
James R. Wolf, Director