Subj: Seymour-Ten Mile Continental Divide National Scenic Trail
This is an appeal filed by the Continental Divide Trail Society under 36 CFR Part 215.
As stated in the Decision Notice for the Seymour-Ten Mile Continental Divide National Scenic Trail (signed by Timothy P. Garcia, Acting Forest Supervisor, Beaverhead-Deerlodge National Forest, August 16, 2013), the proposal for this project was "developed to ensure that the CDNST between Seymour Creek and Hungry Hill meets the nature and purposes of the [CDNST] as outlined by legislation and subsequent study reports and legal decisions."
The notice goes on to illuminate the nature and purposes of the Trail by reference to the CDNST Study Report, which declares:
The primary purpose of this Trail is to provide a continuous, appealing trail route, designed for the hiker and horseman, but compatible with other land uses... To provide hiking and horseback access to those lands where man's impact on the environment has not been adverse to [a substantial] degree and where the environment remains relatively unaltered... The basic goal of the Trail is to provide the hiker and rider an entry to the diverse country along the Continental Divide in a manner which will assure a high quality recreation experience while maintaining a constant respect for the natural environment.
The Decision Notice misstates the nature and purposes by identifying one of the purposes to be to provide hiking and horseback access to those lands where man's impact on the environment has not been adverse to "the subsequent degree ...".
This is an important distinction inasmuch as the relevant statutory language (16 CFR 1246(c)) provides for the authorization of uses that "will not substantially interfere with the nature and purposes of the trail."
The specific change in the decision that the appellant seeks is (1) the correction of this erroneous citation from the CDNST Study Report, (2) a further analysis of the substantiality of any adverse impacts of mountain bike use upon the high quality recreation experience for the hiker and horseman, and (3) if mountain bike use is to be allowed, additional information to assure that monitoring will be effective to identify and rectify substantial interference with the nature and purposes of the CDNST.
As we stated in comments submitted electroncally, on February 15, 2011, in response to a scoping notice:
The "not substantially interfere" standards calls for a careful balance. Interference with the nature and purposes of the trail is most substantial in areas that are natural, scenic, and undisturbed. We regard any mechanized (or motorized) use for travel is such areas to be incompatible with the nature and purposes of the trail. Segments that lack significant attributes of this character, with little to prompt the passing hiker to pause or enjoy his or her surroundings, might be opened to bicycles use as not "substantially interfering" with the nature and purposes of the Trail.
We went on to advise that "based upon an examination of the topographic maps of the areas, the routes close to the Continental Divide and Tenmile Lakes exhibit the qualities that should be conserved and enjoyed in their natural state."
And, in our comments dated April 2, 2013 regarding the Environmental Assessment, we made specific reference to these earlier remarks. We went on to observe that the area under consideration [west of MHWMA] exhibits the primary characteristics of a primitive ROS class - an opportunity for a primitive experience in an essentially unmodified environment. We also pointed out that, in 1981, the Final Environmental Impact Statement for the CDNST anticipated increased use by "hikers, horseback riders, and pack animals," but reflected no expectation that mechanized vehicles would utilize the Trail. 46 Fed.Reg. 39867, Aug. 5, 1981. We continued:
A number of physical effects are associated with mountain bike travel that can be detrimental to the enjoyment of the Trail by other users, such as the formation of a concave cross-section profile instead of a more natural, relatively flat, surface, or the creation of a washboard or hummocking effect attributable to the power strokes of the bicycle riders. While such impacts should always be kept in mind, we are here concerned specifically with social effects. As we read in an environmental assessment for a Colorado project (Lujan to La Garita), “mountain bikers travel much faster than hikers and or horses, and often ‘appear’ quickly, causing hikers and horses to have to quickly yield. In downhill (from bikers’ perspective) situations this can even lead to safety issues. A biker coming around a corner at high speed can come upon a hiker before either party is aware of the other. [¶] In general terms, bicycle use is not consistent with the overall objectives for the CDNST.”
We note one factor that makes mountain biking especially undesirable in this segment. This has to do with its accessibility, with highway-legal vehicles, at or near both termini. Riders could be dropped off at the eastern end and would have a pleasurable travelway descending about 1000 feet in less than 10 miles. There would be several stretches at contour, but very little need to gain elevation along the way. This could well become a rather heavily used bike route, with enhanced impacts upon hikers and horsemen owing to the factors of speed and surprise. In our judgment, this would clearly constitute a substantial interference with the nature and purposes of the Trail.
We recognize that the Decision Notice calls for "monitoring for mountain bike use ... to assess compliance with the policy and direction contained in the 2009 Comprehensive Plan and to assure the nature and purpose of the CDNST (high-quality scenic, primitive hiking and horseback riding opportunities) are maintained. This decision does not prevent future use restrictions on the Trail."
The inclusion of a provision for monitoring is a step forward. However, more detail is needed in order to assure – if mechanized travel is to be allowed at all -- that the monitoring would achieve its aims. Reference should be made to both the physical and social impacts mentioned above, including the prospect of enhanced downhill travel on the segment westward from the MHWMA. The methods and frequency of measurement, along with carrying capacity, would need to be described if there is to be assurance that any mountain bike that does occur is not substantially interfering with the nature and purposes of the CDNST.
36 CFR 215.14. The requirements of 36 CFR 215.14(b) (1-7) are addressed elsewhere in this document. (Signature will be provided upon request.) We do not claim that the decision failed to consider our substantive comments; the inclusion of a monitoring provision reflects consideration of our comments, but does not provide adequate assurance that mountain bike use will not be allowed to substantially interfere with the nature and purposes of the CDNST. Relief is needed in order to assure, in accordance with the National Trails System Act, that such substantial interference will not occur. The specific changes we are requesting have been stated above.
****
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. If you do wish to contact me, with regard to informal disposition or any other matter, please do so by phone at 410/235-9610 or by sending me an e-mail message addressed to jim@cdtsociety.org.
Sincerely,
CONTINENTAL DIVIDE TRAIL SOCIETY
/s/ James R. Wolf
James R. Wolf, Director
3704 N. Charles St. (#601)
Baltimore MD 21218
www.cdtsociety.org
Subj: Seymour-Ten Mile Continental Divide National Scenic Trail
Please refer to the appeal filed by the Continental Divide Trail Society on October 27, 2013. These comments supplement, and should be considered as a part of, that appeal.
We stated that the specific changes in the decision that the appellant seeks include: ... (2) a further analysis of the substantiality of any adverse impacts of mountain bike use upon the high quality recreation experience for the hiker and horseman, and (3) if mountain bike use is to be allowed, additional information to assure that monitoring will be effective to identify and rectify substantial interference with the nature and purposes of the CDNST.
With respect to "the further analysis" that we requested, we had in mind the direction in Forest Service Manual 2353.44b that calls for a CDNST unit plan and lists several elements that such a plan should include. We were referring, as well, to the final decision with respect to adoption of the 2009 revised Beaverhead-Deerlodge National Forest plan that calls for a review "to determine whether it is consistent with the [2009] Comprehensive Plan and amendment (and related FSM 2350 direction), and appropriate action taken if necessary." (This direction was quoted in our comment letter of April 2, 2013.)
The "appropriate action" might be to establish a unit plan before making a decision for the current project. However, our request in this appeal is focused upon the more limited issue of mountain bike use and its consistency with the Comprehensive Plan and amendment, whether or not a complete unit plan is prepared.
So, although are not insisting upon a unit plan, we do have in mind the provision of Manual 2353.44b that lists the establishment of carrying capacity as part of such a plan (2353.44b 2f). [This would implement Section IV.B.9. of the Comprehensive Plan.] Our request for additional information (if mechanized travel is to be allowed at all) to assure that monitoring will be effective to identify and rectify substantial interference with the nature and purposes of the CDNST therefore presumes an evaluation and establishment of carrying capacity.
Please refer to Section II.A. of the 2009 Comprehensive Plan not only for the statement of nature and purposes ["to provide for high-quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along the CDNST corridor"], but also for the background references that reflect the intent to offer a particular kind of experience for the "hiker and rider" -- a "simple facility for foot and horseback use in keeping with the National Scenic Trail concept as seen in the Appalachian and Pacific Crest Trails." Similarly, the FEIS for the CDNST, cited in our appeal, referred to anticipated increased use by "hikers, horseback riders, and pack animals."
The analysis prepared in connection with the 2009 Comprehensive Plan amendment (74 Fed.Reg. 51116, 51119, Oct. 5, 2009) addressed comments dealing with mountain bike use, namely: (1) "some respondents requested modification of the proposed nature and purposes statement to provide for high-quality scenic, bicycling, and motorized opportunities, as well as high-quality scenic, primitive hiking and horseback riding opportunities..." and (2) "several respondents claimed that the nature and purposes of the CDNST were modified by a 1983 amendment of the National Trails System Act to include other uses, such as bicycling." The Forest Service response rejected any change, declaring:
The 1983 amendment to the National Trails System Act, which added 16 U.S.C. 1246(j), does not modify the nature and purposes of the CDNST (emphasis added). The added subsection simply lists uses and vehicles that may be permitted on National Trails generally.
We acknowledge that the Comprehensive Plan (Section IV.B.5.b(2)) provides that bicycle use may be allowed on the CDNST if the use is consistent with the applicable land and resource management plan and will not substantially interfere with the nature and purposes of the CDNST. For that reason, we have not challenged the use of bikes on the East Side portion of the proposed action, where the new trail parallels Hungry Hill Road (within 0.1 mile). We would characterize this as either a semi-primitive non-motorized or roaded natural setting. As motorized vehicles will be in such close proximity to the Trail, we would not challenge a finding that mountain bike use there would not substantially interfere with the nature and purposes of the CDNST.
The West Side (Seymour-Tenmile), however, is an essentially unmodified environment, largely alpine or subalpine, that we would regard as a primitive setting. This is exactly the type of landscape that, in the light of the CDNST's founding principles, should be maintained as a simple footpath for the hiker and horseman. In our view, any mountain bike use in this environment will substantially interfere with the nature and purposes of the CDNST.
We are especially concerned because of the prospect, described in our comments and appeal, regarding the potential use of this segment as a downhill recreational trail. We are also concerned because a use, if once authorized, can be expected to be very difficult to restrict.
However, if the Forest establishes an effective monitoring and evaluation program that will observe obtrusive (fast) travel or more than minimal numbers, and will assure that remedial management actions will be taken if such conditions occur (see Comprehensive Plan, IV.B.10), then there might be grounds for concluding that the allowed use does not "substantially" interfere with the nature and purposes of the CDNST. We might discuss this approach with you next week during the course of our scheduled conference call.
As an approach for setting carrying capacity, please refer to the guidelines for primitive ROS classes. Interactions there will be minimal, usually less than six parties per day encountered on the trail, with maximum opportunity for solitude and testing of outdoor skills. (Comprehensive Plan, IV.B.5.c.(1)(a)). With an anticipated use level of six parties per day, we suggest that the portion anticipated for mountain bikes be set at "usually less than three parties per day," with the remainder expected to be parties of hikers and horseback riders.
We believe the Seymour-Tenmile segment will be a fine addition to the CDNST, and hope that it will be managed to provide for high-quality scenic, primitive hiking and horseback riding opportunities.
Continental Divide Trail Society
3704 N. Charles St. (#601)
Baltimore MD 21218
410/235-9610
James R. Wolf, Director
jim@cdtsociety.org
This is an appeal filed by the Continental Divide Trail Society under 36 CFR Part 215.
As stated in the Decision Notice for the Seymour-Ten Mile Continental Divide National Scenic Trail (signed by Timothy P. Garcia, Acting Forest Supervisor, Beaverhead-Deerlodge National Forest, August 16, 2013), the proposal for this project was "developed to ensure that the CDNST between Seymour Creek and Hungry Hill meets the nature and purposes of the [CDNST] as outlined by legislation and subsequent study reports and legal decisions."
The notice goes on to illuminate the nature and purposes of the Trail by reference to the CDNST Study Report, which declares:
The primary purpose of this Trail is to provide a continuous, appealing trail route, designed for the hiker and horseman, but compatible with other land uses... To provide hiking and horseback access to those lands where man's impact on the environment has not been adverse to [a substantial] degree and where the environment remains relatively unaltered... The basic goal of the Trail is to provide the hiker and rider an entry to the diverse country along the Continental Divide in a manner which will assure a high quality recreation experience while maintaining a constant respect for the natural environment.
The Decision Notice misstates the nature and purposes by identifying one of the purposes to be to provide hiking and horseback access to those lands where man's impact on the environment has not been adverse to "the subsequent degree ...".
This is an important distinction inasmuch as the relevant statutory language (16 CFR 1246(c)) provides for the authorization of uses that "will not substantially interfere with the nature and purposes of the trail."
The specific change in the decision that the appellant seeks is (1) the correction of this erroneous citation from the CDNST Study Report, (2) a further analysis of the substantiality of any adverse impacts of mountain bike use upon the high quality recreation experience for the hiker and horseman, and (3) if mountain bike use is to be allowed, additional information to assure that monitoring will be effective to identify and rectify substantial interference with the nature and purposes of the CDNST.
As we stated in comments submitted electroncally, on February 15, 2011, in response to a scoping notice:
The "not substantially interfere" standards calls for a careful balance. Interference with the nature and purposes of the trail is most substantial in areas that are natural, scenic, and undisturbed. We regard any mechanized (or motorized) use for travel is such areas to be incompatible with the nature and purposes of the trail. Segments that lack significant attributes of this character, with little to prompt the passing hiker to pause or enjoy his or her surroundings, might be opened to bicycles use as not "substantially interfering" with the nature and purposes of the Trail.
We went on to advise that "based upon an examination of the topographic maps of the areas, the routes close to the Continental Divide and Tenmile Lakes exhibit the qualities that should be conserved and enjoyed in their natural state."
And, in our comments dated April 2, 2013 regarding the Environmental Assessment, we made specific reference to these earlier remarks. We went on to observe that the area under consideration [west of MHWMA] exhibits the primary characteristics of a primitive ROS class - an opportunity for a primitive experience in an essentially unmodified environment. We also pointed out that, in 1981, the Final Environmental Impact Statement for the CDNST anticipated increased use by "hikers, horseback riders, and pack animals," but reflected no expectation that mechanized vehicles would utilize the Trail. 46 Fed.Reg. 39867, Aug. 5, 1981. We continued:
A number of physical effects are associated with mountain bike travel that can be detrimental to the enjoyment of the Trail by other users, such as the formation of a concave cross-section profile instead of a more natural, relatively flat, surface, or the creation of a washboard or hummocking effect attributable to the power strokes of the bicycle riders. While such impacts should always be kept in mind, we are here concerned specifically with social effects. As we read in an environmental assessment for a Colorado project (Lujan to La Garita), “mountain bikers travel much faster than hikers and or horses, and often ‘appear’ quickly, causing hikers and horses to have to quickly yield. In downhill (from bikers’ perspective) situations this can even lead to safety issues. A biker coming around a corner at high speed can come upon a hiker before either party is aware of the other. [¶] In general terms, bicycle use is not consistent with the overall objectives for the CDNST.”
We note one factor that makes mountain biking especially undesirable in this segment. This has to do with its accessibility, with highway-legal vehicles, at or near both termini. Riders could be dropped off at the eastern end and would have a pleasurable travelway descending about 1000 feet in less than 10 miles. There would be several stretches at contour, but very little need to gain elevation along the way. This could well become a rather heavily used bike route, with enhanced impacts upon hikers and horsemen owing to the factors of speed and surprise. In our judgment, this would clearly constitute a substantial interference with the nature and purposes of the Trail.
We recognize that the Decision Notice calls for "monitoring for mountain bike use ... to assess compliance with the policy and direction contained in the 2009 Comprehensive Plan and to assure the nature and purpose of the CDNST (high-quality scenic, primitive hiking and horseback riding opportunities) are maintained. This decision does not prevent future use restrictions on the Trail."
The inclusion of a provision for monitoring is a step forward. However, more detail is needed in order to assure – if mechanized travel is to be allowed at all -- that the monitoring would achieve its aims. Reference should be made to both the physical and social impacts mentioned above, including the prospect of enhanced downhill travel on the segment westward from the MHWMA. The methods and frequency of measurement, along with carrying capacity, would need to be described if there is to be assurance that any mountain bike that does occur is not substantially interfering with the nature and purposes of the CDNST.
36 CFR 215.14. The requirements of 36 CFR 215.14(b) (1-7) are addressed elsewhere in this document. (Signature will be provided upon request.) We do not claim that the decision failed to consider our substantive comments; the inclusion of a monitoring provision reflects consideration of our comments, but does not provide adequate assurance that mountain bike use will not be allowed to substantially interfere with the nature and purposes of the CDNST. Relief is needed in order to assure, in accordance with the National Trails System Act, that such substantial interference will not occur. The specific changes we are requesting have been stated above.
****
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. If you do wish to contact me, with regard to informal disposition or any other matter, please do so by phone at 410/235-9610 or by sending me an e-mail message addressed to jim@cdtsociety.org.
Sincerely,
CONTINENTAL DIVIDE TRAIL SOCIETY
/s/ James R. Wolf
James R. Wolf, Director
3704 N. Charles St. (#601)
Baltimore MD 21218
www.cdtsociety.org
Subj: Seymour-Ten Mile Continental Divide National Scenic Trail
Please refer to the appeal filed by the Continental Divide Trail Society on October 27, 2013. These comments supplement, and should be considered as a part of, that appeal.
We stated that the specific changes in the decision that the appellant seeks include: ... (2) a further analysis of the substantiality of any adverse impacts of mountain bike use upon the high quality recreation experience for the hiker and horseman, and (3) if mountain bike use is to be allowed, additional information to assure that monitoring will be effective to identify and rectify substantial interference with the nature and purposes of the CDNST.
With respect to "the further analysis" that we requested, we had in mind the direction in Forest Service Manual 2353.44b that calls for a CDNST unit plan and lists several elements that such a plan should include. We were referring, as well, to the final decision with respect to adoption of the 2009 revised Beaverhead-Deerlodge National Forest plan that calls for a review "to determine whether it is consistent with the [2009] Comprehensive Plan and amendment (and related FSM 2350 direction), and appropriate action taken if necessary." (This direction was quoted in our comment letter of April 2, 2013.)
The "appropriate action" might be to establish a unit plan before making a decision for the current project. However, our request in this appeal is focused upon the more limited issue of mountain bike use and its consistency with the Comprehensive Plan and amendment, whether or not a complete unit plan is prepared.
So, although are not insisting upon a unit plan, we do have in mind the provision of Manual 2353.44b that lists the establishment of carrying capacity as part of such a plan (2353.44b 2f). [This would implement Section IV.B.9. of the Comprehensive Plan.] Our request for additional information (if mechanized travel is to be allowed at all) to assure that monitoring will be effective to identify and rectify substantial interference with the nature and purposes of the CDNST therefore presumes an evaluation and establishment of carrying capacity.
Please refer to Section II.A. of the 2009 Comprehensive Plan not only for the statement of nature and purposes ["to provide for high-quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along the CDNST corridor"], but also for the background references that reflect the intent to offer a particular kind of experience for the "hiker and rider" -- a "simple facility for foot and horseback use in keeping with the National Scenic Trail concept as seen in the Appalachian and Pacific Crest Trails." Similarly, the FEIS for the CDNST, cited in our appeal, referred to anticipated increased use by "hikers, horseback riders, and pack animals."
The analysis prepared in connection with the 2009 Comprehensive Plan amendment (74 Fed.Reg. 51116, 51119, Oct. 5, 2009) addressed comments dealing with mountain bike use, namely: (1) "some respondents requested modification of the proposed nature and purposes statement to provide for high-quality scenic, bicycling, and motorized opportunities, as well as high-quality scenic, primitive hiking and horseback riding opportunities..." and (2) "several respondents claimed that the nature and purposes of the CDNST were modified by a 1983 amendment of the National Trails System Act to include other uses, such as bicycling." The Forest Service response rejected any change, declaring:
The 1983 amendment to the National Trails System Act, which added 16 U.S.C. 1246(j), does not modify the nature and purposes of the CDNST (emphasis added). The added subsection simply lists uses and vehicles that may be permitted on National Trails generally.
We acknowledge that the Comprehensive Plan (Section IV.B.5.b(2)) provides that bicycle use may be allowed on the CDNST if the use is consistent with the applicable land and resource management plan and will not substantially interfere with the nature and purposes of the CDNST. For that reason, we have not challenged the use of bikes on the East Side portion of the proposed action, where the new trail parallels Hungry Hill Road (within 0.1 mile). We would characterize this as either a semi-primitive non-motorized or roaded natural setting. As motorized vehicles will be in such close proximity to the Trail, we would not challenge a finding that mountain bike use there would not substantially interfere with the nature and purposes of the CDNST.
The West Side (Seymour-Tenmile), however, is an essentially unmodified environment, largely alpine or subalpine, that we would regard as a primitive setting. This is exactly the type of landscape that, in the light of the CDNST's founding principles, should be maintained as a simple footpath for the hiker and horseman. In our view, any mountain bike use in this environment will substantially interfere with the nature and purposes of the CDNST.
We are especially concerned because of the prospect, described in our comments and appeal, regarding the potential use of this segment as a downhill recreational trail. We are also concerned because a use, if once authorized, can be expected to be very difficult to restrict.
However, if the Forest establishes an effective monitoring and evaluation program that will observe obtrusive (fast) travel or more than minimal numbers, and will assure that remedial management actions will be taken if such conditions occur (see Comprehensive Plan, IV.B.10), then there might be grounds for concluding that the allowed use does not "substantially" interfere with the nature and purposes of the CDNST. We might discuss this approach with you next week during the course of our scheduled conference call.
As an approach for setting carrying capacity, please refer to the guidelines for primitive ROS classes. Interactions there will be minimal, usually less than six parties per day encountered on the trail, with maximum opportunity for solitude and testing of outdoor skills. (Comprehensive Plan, IV.B.5.c.(1)(a)). With an anticipated use level of six parties per day, we suggest that the portion anticipated for mountain bikes be set at "usually less than three parties per day," with the remainder expected to be parties of hikers and horseback riders.
We believe the Seymour-Tenmile segment will be a fine addition to the CDNST, and hope that it will be managed to provide for high-quality scenic, primitive hiking and horseback riding opportunities.
Continental Divide Trail Society
3704 N. Charles St. (#601)
Baltimore MD 21218
410/235-9610
James R. Wolf, Director
jim@cdtsociety.org