Chokecherry-Sierra Madre Wind Energy Project FEIS Protest Letter (CDTS, July 26, 2012)
…..I. Discussion
Under FLPMA, BLM develops and revises land use plans that, among other things, observe the principles of multiple use and coordinate management with the land use planning and management programs of other Federal departments and agencies. 43 U.S.C. 1712. Public lands are to be managed by the Secretary of the Interior in accordance with such plans, “except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law.” 43 U.S.C. 1732(a).
Among the public lands dedicated to specific uses are national scenic trails, such as the CDNST, established under the provisions of the National Trails System Act. The Trail is administered by the Secretary of Agriculture in consultation with the Secretary of the Interior. 16 U.S.C. 1244. Under the Act, the Secretary may permit certain public-use facilities and other uses along the trail which will not substantially interfere with its nature and purposes (and, to the extent practicable, the Secretary will make efforts to avoid activities incompatible with the purposes for which the Trail was established). 16 U.S.C. 1246(c). In administering the Trail, the Secretary published (in 2009) a revised Comprehensive Plan (16 U.S.C. 1244(f)) that defines the nature and purposes of the CDNST “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 Comprehensive Plan (p.13) recognizes that BLM will use its Visual Resource Management system, but specifies that scenery and visual resource management has the dual purposes (1) to manage the quality of the visual environment and (2) to reduce the visual impact of development activities while maintaining effectiveness in all agency resource programs.
The proposed VRM amendment and CCSM wind energy project present the question whether the multiple use guidelines of FLPMA can be achieved while still affording a high-quality scenic primitive and horseback riding experience.
According to BLM policies, inventory classes provide the basis for considering visual values, but do not establish management direction; they should not be used as a basis for constraining surface disturbing activities. Nevertheless, management decisions must reflect the value of visual resources; and, in fact, the value of the visual resource may be the driving force for some management decisions. BLM Manual 8410 V.A.
With reference to wind energy projects in particular, the BLM’s policy is to facilitate environmentally responsible development consistent with protection of areas and resources of national interest, including the BLM National Landscape Conservation System [NLCS][1] … and other specially designated areas that protect wildlife, visual, cultural, historic or paleontological resource values. Complex projects involving lands near or adjacent to lands designated by Congress for the protection of sensitive viewsheds, resources, and values (e.g. the NLCS) which may be adversely affected by development “require a greater level of consultation, analysis, and mitigation to resolve issues or may not be feasible to authorize.” IM 2011-061, issued February 7, 2011. (This IM updates the BLM Wind Energy Development Policy, which states that the goal of the VRM program is to apply the basic principles of design of wind energy projects at the site-specific project level to mitigate or minimize visual resource impacts and meet VRM objectives established in the land use plan. IM 2009-043, issued December 19, 2008).
To the same effect are the directions cited in our October 18, 2011 comment letter:
· Instruction Memorandum 2009-215, issued Sept. 21, 2009: “the land use plan and management direction for [a national scenic trail] must comply with the purposes of the … act of Congress regardless of any conflicts with the FLPMA’s multiple-use mandate.” Also, “the Field Office should ensure that the RMP identifies the objects or resources for which the area was designated and illustrates how those objects or resources are protected by the plan. The RMP must also clearly distinguish between the planning area for the RMP and the planning area for the special designation. The existence of multiple decision areas necessitates a plan distinction between the decision and analysis for each area. Additionally, an integrated planning process should conclude with an independent Record of Decision for both the RMP planning area and the special designation area.”
· 43 U.S.C. 1732(a): “where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law.”
· Secretarial Order No. 3308 (November 15, 2010): “… conservation of this Nation’s rich natural and cultural heritage is an equally important land management objective, and an integral part of the BLM’s multiple-use mission. Conservation is a long-term investment that provides quality of life and economic benefits for current and future generations.” Accordingly, BLM is directed to “ensure that the components of the NLCS [including the CDNST] are managed to protect the values for which they were designated, including, where appropriate, prohibiting uses that are in conflict with those values.”
We understand that additional sections of the BLM Manual relating to the management of national scenic trails may be issued in the near future. If so, there should be an opportunity for members of the public (especially individuals who are protesting the pending actions) to comment upon the relevance and significance of these issuances before any final decisions are made.
To recapitulate: management decisions related to wind energy projects must reflect the value of visual resources, mitigate or minimize visual resource impacts, and be consistent with protection of the values for which the CDNST was designated.
The proposed VRM amendment and the preferred alternative for the CCSM project do not reflect the value of visual resources, do not mitigate or minimize visual resource impacts, and are not consistent with protection of the values for which the CDNST was designated.
Value of Visual Resources. We are pleased that BLM recognizes that the setting for the Trail has significant (Class B) visual values, taking into account the variety and harmonious composition of the landscape. The one exception is the area between the Trail and Atlantic Rim (our recommended new SQRU), which continues to have a Class C scenic quality rating (Vol. II, figure 3.12-4).
Actually, BLM seems to us to be inconsistent, inasmuch as it itself extols the scenic importance of Atlantic Rim:
“High to very high visibility is a defining characteristic of the region. Generally, the vast, open nature of the analysis area provides for wide and distant vistas. To the west of the analysis area lies the Atlantic Rim, one of the more distinctive landforms in the area. Panoramic views are seen from the crest of the Atlantic Rim.” (Vol. II, p. 3.12-13).
This comports with our comment of last October:
“The striking scenic attractiveness of the area is recognized in our Society’s Guide to the Continental Divide Trail (v.4, 2009 Supplement, p.1) which advises hikers to take note of ‘a good vantage point to admire the cliffs of the Atlantic Rim jut up over the treeless grasslands.’ Continuing on to Bridger Pass, the text comments on the flowers as well as the waterfowl and shorebirds in the ponds beneath the bluffs of Atlantic Rim ‘marked with bold horizontal striations.’ Indeed, the adjacent Atlantic Rim is assigned SQRU 015 as ‘a dramatic rim with substantial vertical relief … interesting landforms … an imposing visual presence;’ and nowhere can it be observed better than from the CDNST.”
The landscape south of Bridger Pass and traveling the upper reaches of Muddy Creek passes through a pleasant valley bordered with grassy hills and readily exhibits qualities deserving of a Class B rating (as properly recognized by BLM, Vol. II, Figure 3.12-4).
Mitigation or Minimization of Visual Resource Impacts. As stated in the wind energy development policy, a goal of the VRM program is to apply the basic principles of design of wind energy projects at the site-specific project level to mitigate or minimize visual resource impacts. Establishing a quarter-mile exclusion area along the CDNST and recognizing a semi-primitive motorized ROS class extending one mile on either side of the trail are helpful measures as far as they go, but they do not address middleground (to say nothing of background) visual impacts.
For the CCSM project, BLM did give consideration to aspects of turbine design, including height and turbine density limitations, that might result in lesser visual impacts (Volume II, 2.3.6). Still, we believe that there may be opportunities to mitigate these impacts upon the CDNST by selective modifications to the location and height of turbines. In fact, it was our expectation that the planning area reduction in Alternative 3 would be a step in that direction. However, when we compare the maps showing the visibility of turbines from the CDNST, there seems to be absolutely no difference. (Compare Figures 4.12-3, 4.12-6, 4.12-9, 4.12-12). If, as we surmise, Figure 4.12-9 is incorrect, then it should be redrawn, and the corrected version should be used for purposes of decision.
Examination of these figures demonstrates that the most-impacted section of the CDNST is along the Bridger Pass Road – precisely the highly scenic area that we recommended for classification as a separate SQRU. Fortunately, the conflicts may be nearly eliminated by moving the CDNST to the west side of Atlantic Rim where, according to the cited figures, there would be low (or, perhaps, occasionally medium) turbine visibility. This was exactly what we proposed in our comments last October. (To reduce the visual impacts further, and to move the CDNST away from the recently-upgraded surface of the Bridger Pass Road, we revise our suggestion so as to extend the westerly realignment all the way to Muddy Creek.)[2]
Under each of the CCSM alternatives, turbines would be visible at a distance as close as 1.3 to 1.9 miles from Chokecherry (Table 2-14). Such an obtrusive presence (along with the long-term WTC effects described in Vol. II 4.12.2.1) cries out for correction. Realignment west of Atlantic Rim would screen the turbines in a manner that would substantially mitigate or minimize the intrusion on the CDNST.[3]
Our comments also took note of the opportunity to relocate the CDNST out of an area of medium turbine visibility to one of low visibility in the headwaters of Muddy Creek. The CCSM FEIS did not consider this suggestion or evaluate how it might mitigate or minimize visual resource impact upon the CDNST.
In view of BLMs election not to identify other wind energy development projects in the project area as being reasonably foreseeable, our analysis presumes that they may be disregarded, perhaps in recognition of impacts upon sage grouse core areas. If there are reasonably foreseeable developments, on the other hand, then they need to be addressed within an FEIS of expanded scope sufficient to evaluate cumulative impacts and examine opportunities for mitigation.
Inconsistent with CDNST Values. Secretarial Order No. 3308 directs BLM to ensure that the CDNST is managed to protect the values for it was designated (including, where appropriate, prohibiting uses that are in conflict with those values). Implicit in the designation “national scenic trail” is the fundamental importance of visual quality. As a scenic trail, it should “provide for “maximum outdoor recreation potential and for conservation and enjoyment of the nationally significant scenic, historic, natural, or cultural qualities of the areas through which the Trail passes.” 16 U.S.C. 1242.
Speaking for the members of our Society, and assuredly for many other users of the CDNST as well, a viewing experience dominated by vast numbers of 100-meter towers – even taller including rotors – does not further the goal of maximum outdoor recreation potential and certainly detracts from the conservation and enjoyment of the Trail’s setting.
Everything in the 2009 CDNST Comprehensive Plan must be read in the light or these statutory objectives. The Plan’s statement of the nature and purposes of the Trail paraphrases the statutory goals quite well: to provide for high quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along he CDNST corridor. Visual quality concerns were addressed at the inventory stage by specifying a high sensitivity level for the route. While scenery and visual resource management were to be evaluated in accordance with BLM Manual 8400, the purposes of this effort were stated to be “to manage the quality of the visual environment and to reduce the visual impact of development activities while maintaining effectiveness in all agency resource programs.” (pp. 12-13).
Given this framework, we cannot entirely disregard the prospective benefits of a wind energy development project. At the same time, however, we must ask whether there are ways that such a project might be authorized with only very limited loss of recreational and scenic value. We have identified trail location alternatives and suggested further consideration of design modifications (such as turbine height and project area boundary revision) that might achieve a balance along the lines of both the Comprehensive Plan and BLM’s own policies as outlined above, reducing visual impacts while allowing a modified CCSM project to proceed. But we can concur with neither the VRM Amendment nor any of the CCSM project alternatives in their present form.
We disagree with the underlying reasoning of BLM, which is stated succinctly at Vol. II, p.4.12-20:
o Whether private property is or is not present, failure to achieve an” ideal condition” is not necessarily inconsistent with the nature and purposes of the CDNST.
o To say that an “ideal condition” may not always be met hardly provides carte blanche to massive intrusions such as those envisaged under Alternative 1R.
o Management of the public lands in the checkerboard requires an assessment of the visual impacts of proposed BLM actions. As explained above, VRM decisions should result only from a careful balancing of the policies in FLPMA and the National Trails System Act, not because of the peculiar land tenure pattern of the checkerboard.
Unless BLM ensures protection of the values of the CDNST along the lines of our recommendations, this would be an appropriate instance for prohibiting the conflicting uses (as contemplated by Secretarial Order No. 3308).
II. Relief
In light of the objections presented in this protest, the Continental Divide Trail Society, on behalf of its members as well as other users of the CDNST with similar concerns, submits the following requests for relief.
o Adopt visual resource management plan amendment Alternative 3 (Emphasis on Protection of Resources). Since it is only VRM Alternative 4 (Proposed Plan) that was carried forward to inform the alternatives and the conceptual areas of development as well as the analysis in Volume II, a decision to proceed now with the CCSM project would not meet NEPA requirements. However, following submission of a revised application conforming to the Alternative 3 VRM amendment (with mitigating actions along the lines outlined by our Society) and a revised environmental impact statement, the CCSM project might prove still to be viable.
o Alternatively, adopt visual management plan Alternative 1 (No Action). Since amendment to the Rawlins RMP is a prerequisite to approval of the CCSM project, the application should then be denied.
Although our request for relief does not address Volume II (because the adoption of any of the alternatives described therein would not be consistent with protection of the values for which the CDNST was designated), BLM should nevertheless bear in mind all of our comments, including those related to Volume II, as it proceeds.
[1] 16 U.S.C. 7201. The system includes each national scenic trail designated as a component of the National
Trails System. 16 U.S.C. 7202(B)(1)(D). NLCS is to be managed “in a manner that protects the values for which the components of the system were designated.” 16 U.S.C.7202 (c)(2). As a general rule, if the designating Act of Congress conflicts with FLPMA’s multiple use mandate, “the designating language will apply.” BLM Manual 6100 [NLCS] 1.6.B.1. BLM Manual 6250, which deals primarily with management of national scenic and historic trails rather than the impacts of other activities upon such trails, also lists similar objectives relating to protection, enjoyment and appreciation of their resources, qualities, values and associated settings.
[2] We do not recall having received a scoping notice or, until very recently, any other information regarding a planned upgrade of the Bridger Pass Road. Had we been so informed, we would have commented regarding potential adverse effects upon the enjoyment of the CDNST. An examination of Figure 3-1 shows that existing infrastructure within the planning area would not stand in the way of the relocations we have proposed.
[3] We contemplate that the applicant, as a condition for approval of the CCSM project, would arrange for acquisition of the needed right-of-way, authorizing pedestrian and equestrian use by members of the public; this could consist of existing public roads as well as easements, in accordance with Chapter IV of the Comprehensive Plan. Fee acquisitions would be desirable, but would not be necessary.
Under FLPMA, BLM develops and revises land use plans that, among other things, observe the principles of multiple use and coordinate management with the land use planning and management programs of other Federal departments and agencies. 43 U.S.C. 1712. Public lands are to be managed by the Secretary of the Interior in accordance with such plans, “except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law.” 43 U.S.C. 1732(a).
Among the public lands dedicated to specific uses are national scenic trails, such as the CDNST, established under the provisions of the National Trails System Act. The Trail is administered by the Secretary of Agriculture in consultation with the Secretary of the Interior. 16 U.S.C. 1244. Under the Act, the Secretary may permit certain public-use facilities and other uses along the trail which will not substantially interfere with its nature and purposes (and, to the extent practicable, the Secretary will make efforts to avoid activities incompatible with the purposes for which the Trail was established). 16 U.S.C. 1246(c). In administering the Trail, the Secretary published (in 2009) a revised Comprehensive Plan (16 U.S.C. 1244(f)) that defines the nature and purposes of the CDNST “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 Comprehensive Plan (p.13) recognizes that BLM will use its Visual Resource Management system, but specifies that scenery and visual resource management has the dual purposes (1) to manage the quality of the visual environment and (2) to reduce the visual impact of development activities while maintaining effectiveness in all agency resource programs.
The proposed VRM amendment and CCSM wind energy project present the question whether the multiple use guidelines of FLPMA can be achieved while still affording a high-quality scenic primitive and horseback riding experience.
According to BLM policies, inventory classes provide the basis for considering visual values, but do not establish management direction; they should not be used as a basis for constraining surface disturbing activities. Nevertheless, management decisions must reflect the value of visual resources; and, in fact, the value of the visual resource may be the driving force for some management decisions. BLM Manual 8410 V.A.
With reference to wind energy projects in particular, the BLM’s policy is to facilitate environmentally responsible development consistent with protection of areas and resources of national interest, including the BLM National Landscape Conservation System [NLCS][1] … and other specially designated areas that protect wildlife, visual, cultural, historic or paleontological resource values. Complex projects involving lands near or adjacent to lands designated by Congress for the protection of sensitive viewsheds, resources, and values (e.g. the NLCS) which may be adversely affected by development “require a greater level of consultation, analysis, and mitigation to resolve issues or may not be feasible to authorize.” IM 2011-061, issued February 7, 2011. (This IM updates the BLM Wind Energy Development Policy, which states that the goal of the VRM program is to apply the basic principles of design of wind energy projects at the site-specific project level to mitigate or minimize visual resource impacts and meet VRM objectives established in the land use plan. IM 2009-043, issued December 19, 2008).
To the same effect are the directions cited in our October 18, 2011 comment letter:
· Instruction Memorandum 2009-215, issued Sept. 21, 2009: “the land use plan and management direction for [a national scenic trail] must comply with the purposes of the … act of Congress regardless of any conflicts with the FLPMA’s multiple-use mandate.” Also, “the Field Office should ensure that the RMP identifies the objects or resources for which the area was designated and illustrates how those objects or resources are protected by the plan. The RMP must also clearly distinguish between the planning area for the RMP and the planning area for the special designation. The existence of multiple decision areas necessitates a plan distinction between the decision and analysis for each area. Additionally, an integrated planning process should conclude with an independent Record of Decision for both the RMP planning area and the special designation area.”
· 43 U.S.C. 1732(a): “where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law.”
· Secretarial Order No. 3308 (November 15, 2010): “… conservation of this Nation’s rich natural and cultural heritage is an equally important land management objective, and an integral part of the BLM’s multiple-use mission. Conservation is a long-term investment that provides quality of life and economic benefits for current and future generations.” Accordingly, BLM is directed to “ensure that the components of the NLCS [including the CDNST] are managed to protect the values for which they were designated, including, where appropriate, prohibiting uses that are in conflict with those values.”
We understand that additional sections of the BLM Manual relating to the management of national scenic trails may be issued in the near future. If so, there should be an opportunity for members of the public (especially individuals who are protesting the pending actions) to comment upon the relevance and significance of these issuances before any final decisions are made.
To recapitulate: management decisions related to wind energy projects must reflect the value of visual resources, mitigate or minimize visual resource impacts, and be consistent with protection of the values for which the CDNST was designated.
The proposed VRM amendment and the preferred alternative for the CCSM project do not reflect the value of visual resources, do not mitigate or minimize visual resource impacts, and are not consistent with protection of the values for which the CDNST was designated.
Value of Visual Resources. We are pleased that BLM recognizes that the setting for the Trail has significant (Class B) visual values, taking into account the variety and harmonious composition of the landscape. The one exception is the area between the Trail and Atlantic Rim (our recommended new SQRU), which continues to have a Class C scenic quality rating (Vol. II, figure 3.12-4).
Actually, BLM seems to us to be inconsistent, inasmuch as it itself extols the scenic importance of Atlantic Rim:
“High to very high visibility is a defining characteristic of the region. Generally, the vast, open nature of the analysis area provides for wide and distant vistas. To the west of the analysis area lies the Atlantic Rim, one of the more distinctive landforms in the area. Panoramic views are seen from the crest of the Atlantic Rim.” (Vol. II, p. 3.12-13).
This comports with our comment of last October:
“The striking scenic attractiveness of the area is recognized in our Society’s Guide to the Continental Divide Trail (v.4, 2009 Supplement, p.1) which advises hikers to take note of ‘a good vantage point to admire the cliffs of the Atlantic Rim jut up over the treeless grasslands.’ Continuing on to Bridger Pass, the text comments on the flowers as well as the waterfowl and shorebirds in the ponds beneath the bluffs of Atlantic Rim ‘marked with bold horizontal striations.’ Indeed, the adjacent Atlantic Rim is assigned SQRU 015 as ‘a dramatic rim with substantial vertical relief … interesting landforms … an imposing visual presence;’ and nowhere can it be observed better than from the CDNST.”
The landscape south of Bridger Pass and traveling the upper reaches of Muddy Creek passes through a pleasant valley bordered with grassy hills and readily exhibits qualities deserving of a Class B rating (as properly recognized by BLM, Vol. II, Figure 3.12-4).
Mitigation or Minimization of Visual Resource Impacts. As stated in the wind energy development policy, a goal of the VRM program is to apply the basic principles of design of wind energy projects at the site-specific project level to mitigate or minimize visual resource impacts. Establishing a quarter-mile exclusion area along the CDNST and recognizing a semi-primitive motorized ROS class extending one mile on either side of the trail are helpful measures as far as they go, but they do not address middleground (to say nothing of background) visual impacts.
For the CCSM project, BLM did give consideration to aspects of turbine design, including height and turbine density limitations, that might result in lesser visual impacts (Volume II, 2.3.6). Still, we believe that there may be opportunities to mitigate these impacts upon the CDNST by selective modifications to the location and height of turbines. In fact, it was our expectation that the planning area reduction in Alternative 3 would be a step in that direction. However, when we compare the maps showing the visibility of turbines from the CDNST, there seems to be absolutely no difference. (Compare Figures 4.12-3, 4.12-6, 4.12-9, 4.12-12). If, as we surmise, Figure 4.12-9 is incorrect, then it should be redrawn, and the corrected version should be used for purposes of decision.
Examination of these figures demonstrates that the most-impacted section of the CDNST is along the Bridger Pass Road – precisely the highly scenic area that we recommended for classification as a separate SQRU. Fortunately, the conflicts may be nearly eliminated by moving the CDNST to the west side of Atlantic Rim where, according to the cited figures, there would be low (or, perhaps, occasionally medium) turbine visibility. This was exactly what we proposed in our comments last October. (To reduce the visual impacts further, and to move the CDNST away from the recently-upgraded surface of the Bridger Pass Road, we revise our suggestion so as to extend the westerly realignment all the way to Muddy Creek.)[2]
Under each of the CCSM alternatives, turbines would be visible at a distance as close as 1.3 to 1.9 miles from Chokecherry (Table 2-14). Such an obtrusive presence (along with the long-term WTC effects described in Vol. II 4.12.2.1) cries out for correction. Realignment west of Atlantic Rim would screen the turbines in a manner that would substantially mitigate or minimize the intrusion on the CDNST.[3]
Our comments also took note of the opportunity to relocate the CDNST out of an area of medium turbine visibility to one of low visibility in the headwaters of Muddy Creek. The CCSM FEIS did not consider this suggestion or evaluate how it might mitigate or minimize visual resource impact upon the CDNST.
In view of BLMs election not to identify other wind energy development projects in the project area as being reasonably foreseeable, our analysis presumes that they may be disregarded, perhaps in recognition of impacts upon sage grouse core areas. If there are reasonably foreseeable developments, on the other hand, then they need to be addressed within an FEIS of expanded scope sufficient to evaluate cumulative impacts and examine opportunities for mitigation.
Inconsistent with CDNST Values. Secretarial Order No. 3308 directs BLM to ensure that the CDNST is managed to protect the values for it was designated (including, where appropriate, prohibiting uses that are in conflict with those values). Implicit in the designation “national scenic trail” is the fundamental importance of visual quality. As a scenic trail, it should “provide for “maximum outdoor recreation potential and for conservation and enjoyment of the nationally significant scenic, historic, natural, or cultural qualities of the areas through which the Trail passes.” 16 U.S.C. 1242.
Speaking for the members of our Society, and assuredly for many other users of the CDNST as well, a viewing experience dominated by vast numbers of 100-meter towers – even taller including rotors – does not further the goal of maximum outdoor recreation potential and certainly detracts from the conservation and enjoyment of the Trail’s setting.
Everything in the 2009 CDNST Comprehensive Plan must be read in the light or these statutory objectives. The Plan’s statement of the nature and purposes of the Trail paraphrases the statutory goals quite well: to provide for high quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along he CDNST corridor. Visual quality concerns were addressed at the inventory stage by specifying a high sensitivity level for the route. While scenery and visual resource management were to be evaluated in accordance with BLM Manual 8400, the purposes of this effort were stated to be “to manage the quality of the visual environment and to reduce the visual impact of development activities while maintaining effectiveness in all agency resource programs.” (pp. 12-13).
Given this framework, we cannot entirely disregard the prospective benefits of a wind energy development project. At the same time, however, we must ask whether there are ways that such a project might be authorized with only very limited loss of recreational and scenic value. We have identified trail location alternatives and suggested further consideration of design modifications (such as turbine height and project area boundary revision) that might achieve a balance along the lines of both the Comprehensive Plan and BLM’s own policies as outlined above, reducing visual impacts while allowing a modified CCSM project to proceed. But we can concur with neither the VRM Amendment nor any of the CCSM project alternatives in their present form.
We disagree with the underlying reasoning of BLM, which is stated succinctly at Vol. II, p.4.12-20:
- “The checkerboard pattern, I-80, and the City of Rawlins is the context through which the CDNST passes in the RFO.”
- “The CMP demonstrates a clear understanding that an ideal condition will not always be met across private property.”
- “Therefore, Alternative 1R, though resulting in a strong visual contrast, does not substantially interfere with the nature and purposes of the CDNST.”
o Whether private property is or is not present, failure to achieve an” ideal condition” is not necessarily inconsistent with the nature and purposes of the CDNST.
o To say that an “ideal condition” may not always be met hardly provides carte blanche to massive intrusions such as those envisaged under Alternative 1R.
o Management of the public lands in the checkerboard requires an assessment of the visual impacts of proposed BLM actions. As explained above, VRM decisions should result only from a careful balancing of the policies in FLPMA and the National Trails System Act, not because of the peculiar land tenure pattern of the checkerboard.
Unless BLM ensures protection of the values of the CDNST along the lines of our recommendations, this would be an appropriate instance for prohibiting the conflicting uses (as contemplated by Secretarial Order No. 3308).
II. Relief
In light of the objections presented in this protest, the Continental Divide Trail Society, on behalf of its members as well as other users of the CDNST with similar concerns, submits the following requests for relief.
- Defer a decision until protesting persons have had an opportunity to review and comment upon forthcoming BLM Manual issuances related to management of national scenic trails.
- If it is deemed impractical to defer a decision as we have requested:
o Adopt visual resource management plan amendment Alternative 3 (Emphasis on Protection of Resources). Since it is only VRM Alternative 4 (Proposed Plan) that was carried forward to inform the alternatives and the conceptual areas of development as well as the analysis in Volume II, a decision to proceed now with the CCSM project would not meet NEPA requirements. However, following submission of a revised application conforming to the Alternative 3 VRM amendment (with mitigating actions along the lines outlined by our Society) and a revised environmental impact statement, the CCSM project might prove still to be viable.
o Alternatively, adopt visual management plan Alternative 1 (No Action). Since amendment to the Rawlins RMP is a prerequisite to approval of the CCSM project, the application should then be denied.
Although our request for relief does not address Volume II (because the adoption of any of the alternatives described therein would not be consistent with protection of the values for which the CDNST was designated), BLM should nevertheless bear in mind all of our comments, including those related to Volume II, as it proceeds.
[1] 16 U.S.C. 7201. The system includes each national scenic trail designated as a component of the National
Trails System. 16 U.S.C. 7202(B)(1)(D). NLCS is to be managed “in a manner that protects the values for which the components of the system were designated.” 16 U.S.C.7202 (c)(2). As a general rule, if the designating Act of Congress conflicts with FLPMA’s multiple use mandate, “the designating language will apply.” BLM Manual 6100 [NLCS] 1.6.B.1. BLM Manual 6250, which deals primarily with management of national scenic and historic trails rather than the impacts of other activities upon such trails, also lists similar objectives relating to protection, enjoyment and appreciation of their resources, qualities, values and associated settings.
[2] We do not recall having received a scoping notice or, until very recently, any other information regarding a planned upgrade of the Bridger Pass Road. Had we been so informed, we would have commented regarding potential adverse effects upon the enjoyment of the CDNST. An examination of Figure 3-1 shows that existing infrastructure within the planning area would not stand in the way of the relocations we have proposed.
[3] We contemplate that the applicant, as a condition for approval of the CCSM project, would arrange for acquisition of the needed right-of-way, authorizing pedestrian and equestrian use by members of the public; this could consist of existing public roads as well as easements, in accordance with Chapter IV of the Comprehensive Plan. Fee acquisitions would be desirable, but would not be necessary.