Objection to the Shoshone Land Management Plan Draft Decision
[submitted March 22, 2014 by the Continental Divide Trail Society (James R. Wolf, Director)]
The Continental Divide Trail Society[1], in accordance with 36 CFR § 219.50 et seq., hereby submits an objection to the 2014 Revision to the Shoshone National Forest Land Management Plan. This submission relates primarily to issues involving the location of the Continental Divide National Scenic Trail.
The first basis for this objection relates to the Forest’s change of the Plan, which now delineates a corridor for the Continental Divide National Scenic Trail (CDNST). The Plan that had been circulated for review contains goals, standards, and guidelines for CDNST Management Area 3.6A[2], but neither specifies any particular location nor depicts any such location on maps distributed for review. It describes the management area to include an unspecified corridor within 0.5 mile of centerline of the Trail location. The change occurs on page 161, where the words “See Map O” have been added. Map O – another addition – depicts a one-mile corridor and identifies it as MA 3.6A.
The issue regarding the Forest’s delineation of one particular corridor for the CDNST arose after the opportunities for formal comment. If this action had been included in the draft plan, with just this one route shown as MA 3.6A on maps in the DEIS, we would have disapproved, as we do today.
Forest Service directives related to the CDNST contemplate that the location of the Trail will be established in the planning process one of two ways – as part of the plan revision process (FSM 2353.44b 1.) or in the course of development of a CDNST unit plan (FSM 2353.44b 2.). Reasonable alternatives would need to be considered in either case.
However, it is improper to delineate the route in the land management plan without having carried out an environmental review of alternative locations. This is especially the case because, in that event, the selected route would not require further consideration in the unit plan. (“A CDNST unit plan must … except where delineated in the applicable land management plan, establish a management area for the segments of the CDNST that traverse that unit … .” FSM 2353.44b 2.b.)
This may give rise to a “Catch-22” situation: we (and other interested persons) have not been offered the chance to participate in the routing of the Trail in accordance with NEPA; and when a unit plan is prepared, we may be denied the opportunity to raise this concern inasmuch as the route had already been delineated in the land management plan. That would not be faithful to the intent of the directive, nor would it “provide for high-quality scenic, primitive hiking and horseback riding opportunities,” in accordance with the 2009 Comprehensive Plan .
Route selection may still be carried out in the management plan with evaluation in a supplemental environmental impact statement. Otherwise, this task should be included in a unit plan.[3]
A further reason that the selection of the existing route (as shown on Map O) should be set aside for failure to consider alternatives is that the factors relied upon in the 1998 environmental assessment are no longer sufficient in view of changed circumstances (including grizzly bear recovery and the adoption of new policies as set out in the 2009 Comprehensive Plan for the CDNST and the adoption of FSM 2353.44b).[4]
The second basis of our objection is the ambiguity that results from having multiple management areas covering the same portions of the Forest. This conflict is evident from a comparison of maps in the FEIS. Map O is labeled as depicting the CDNST (MA 3.6A). The corridor shown on Map O as the CDNST does not appear on Map 79 (Alternative G, pages 6 and 8). Instead, the lands within that corridor are assigned to several prescriptions, including MA 5.1 (managed forest and rangeland). The goals and direction for MA 3.6A and MA 5.1 (as well as 3.3, 3.5, and 4.2) are quite different, for example with respect to suitability for timber production.
There is no assurance that MA 3.6A is meant to be the governing prescription where this overlap occurs. After all, under Alternative G, no acres have been allocated for management as MA 3.6A (FEIS, Appendix B, Table 2); no scenic integrity objectives have been identified for MA 3.6A (Id., Table 20); and no ROS objectives have been assigned (Id., Table 22). Even if MA 3.6A prescriptions are intended to govern, the absence of this information on the Alternative G maps may lead administrators to overlook it when making management decisions. To eliminate the ambiguity, the relevant maps for Alternative G must be withdrawn and replaced by maps that mark lands within the CDNST corridor as MA 3.6A.[5] (The FEIS should also be corrected, both in text and tables, so as to incorporate the missing information.)
The third basis of our objection is that the plan does not assure that the Forest will conduct a timely review of alternative locations, including alternatives that would lead to further progress toward the goal of removing the CDNST from roads.
The issue of CDNST location has long been in the forefront of the concerns we have provided to the Forest. Our scoping comments recommended that a particular location should be included in the Plan, but it was our expectation that this would be based upon an examination of alternatives so that an approved location “can be shown in the draft environmental impact statement.” We indicated our desire “to work with you to identify and evaluate alternate routes in the area.” [6]
We continue to believe that a route selection, based upon a careful consideration of reasonable alternatives with public participation in accordance with the provisions of NEPA, might have provided a sound basis for delineation of the CDNST route in the management plan. The draft plan and DEIS, as noted above, did not identify any specific location for the CDNST management area. It did, however, show the route of several alternatives on Map 41. In the DEIS, two of these alternatives were described as “proposed re-routes that have had cultural resource and botanical surveys completed.” The relocation processes were described as “ongoing [and] considered as a reasonably foreseeable future action” (DEIS, p. 506).
Our response[7] again called for the identification of specific trail segments. We indicated our desire for these determinations to be made as part of the land management plan itself, but otherwise “they should be made as soon as possible by the consideration and adoption of a unit plan.” We proposed that all of the locations drawn on Map 41 should be included within Management Area 3.6A; upon selection of a particular route in accordance with NEPA, the non-selected alternatives would revert to the prescription for their surrounding areas. This would serve to protect the national scenic trail corridor to the degree necessary to ensure that the values for which the Trail was established remain intact.[8]
Had the Plan been revised to include all the Map 41 corridors in Management Area 3.6A, we would have less reason to object. The Forest would then proceed to select a specific route with appropriate environmental review, either by way of a supplemental environmental impact statement directed to the route selection issue or by way of the consideration and adoption of a unit plan, which also would require environmental review.
We recognized that the Forest was probably not inclined to proceed with this kind of review before finalizing its land management plan, so we noted our “anticipation” that the location of the Trail would remain unidentified. (We did not expect that the Forest would choose the unsatisfactory and largely roaded current route as the sole corridor for the CDNST.) In the absence of a NEPA review of prospective CDNST locations, we were concerned that management in accordance with any of the alternatives (A-F in the DEIS) would not in fact serve the nature and purposes of the Trail.
Although we acquiesced in the deferral of route selection, we did so in recognition of the provisions of FSM 2353.44b, cited above. This would afford an opportunity to examine alternative routings and delineate a route, as part of a unit plan, that would serve the nature and purposes of the Trail.
We were concerned, however, that other priorities might result in continued delay in achieving the goal to remove the CDNST route from roads and to enhance the scenic setting. Accordingly, we called for the record of decision to include a directive to initiate the preparation of a unit plan without delay. Back in 1998, the Forest observed that “additional field reconnaissance is needed to find the best place for new trail segments. Construction of new trail segments will depend on availability of funds, and it may be quite a few years before these are completed.”[9] The map accompanying the decision, consistent with this reservation, bears the legend “Final route to be determined.” But when?
We acknowledge the Forest’s intention at some point to address this concern. For example at page 50 of the FEIS it advises that “changes to the CDNST are considered site-specific projects and will be addressed in project planning.” (FEIS, p.50) Also, the Forest notes that two proposed re-routes have had cultural resource and botanical surveys completed; in developing a unit plan, alternatives (such as these) “will be analyzed by the scenery management system and recreation opportunity spectrum proposed by each alternative as they relate to the CDNST.” (FEIS, pp. 494-495). Other environmental factors will of course also need to be considered, including policies for grizzly bear recovery that have changed over the past several years.
CDNST relocation planning processes are said to be ongoing, so that “they were considered a reasonably foreseeable future action.” FEIS, p.520). After 16 years of inaction, that is woefully inadequate. We object to the lack of a firm commitment to commence an evaluation of alternative locations for the CDNST as soon as the revised land management plan goes into effect. Unless the Forest addresses this concern with an SEIS, the most orderly way to proceed would be to begin scoping for a unit plan (as expressed as a “next step” in our November 2012 comments). Further, as we stated in those comments, “the Forest Service should take appropriate measures to ensure that any projects approved before the CDNST unit plan is adopted will be consistent with the nature and purposes of the Trail, including the routes appearing on Map 41 as well as the existing route.” A timetable should be included as well.
In developing a proposed plan revision, the responsible official must review relevant information to identify a preliminary need to change the existing plan and to inform the development of plan components and other plan content.[10] Clearly, the value of considering alternative routes has been recognized. Unfortunately, however, in the absence of direction to schedule this task for prompt attention, it does not adequately “inform the development of plan components.”
Important information giving rise to at least a preliminary need to change the existing plan with respect to CDNST location include:
· Changed policies and circumstances with respect to grizzly bear recovery and management. In 1998, when the current route was selected, the Forest was concerned that “routes on the west side of the divide would cross 'Situation I' grizzly bear habitat, where habitat maintenance and bear-human conflict minimization receive the highest priority.” (EA, p.9; ROD p.7) These days, there is a Primary Conservation Area for grizzly bear recovery, but it includes substantial areas both east and west of the Continental Divide, with no differentiation between them.[11]
· The completion of cultural resource and botanical surveys for two proposed re-routes.
· The passage of 16 years since the interim route was selected, with a recognition at that time of a “need” for additional field reconnaissance and the map legend “Final route not determined.”
· Adoption of the new CDNST Comprehensive Plan (2009), along with issuance of FSM 2355.44b, with their emphasis upon locating the Trail off of roads.
In summary, the Shoshone National Forest should proceed without delay to delineate the route of the Continental Divide National Scenic Trail in a manner that provides an evaluation of alternative locations in accordance with applicable direction (including the National Trails System Act, the National Environmental Policy Act, the 2009 Comprehensive Plan for the CDNST, and FSM 2353.44b 2). The corridor depicted on Map O may need to continue in use on a temporary basis; however, the settings of the Map 41 alternatives should be managed to preserve scenic qualities and ROS classifications satisfying the desired conditions of MA 3.6A. Other alternatives may also merit consideration in light of comments submitted in response to a scoping request.
· Unless the maps for Alternative G are replaced, lands shown as being in MA 5.1 as well as MA 3.6A might be used for timber production even though that would not be compatible with the achievement of desired conditions for the CDNST. Even if this conflict were eliminated, timber production outside the CDNST corridor may still not be compatible with the achievement of such desired conditions because of degradation of scenic quality as observed by Trail users.
· For these reasons, the plan fails to “provide for … appropriate management of … designated areas” [such as a national scenic trail]. 36 CFR § 219.10(b)(vi).
The plan is inconsistent with the National Environmental Policy Act insofar as it fails to provide for consideration of alternative locations for the CDNST in the plan or otherwise in a timely fashion. It is also inconsistent with NEPA because of a failure to respond to timely substantive comments submitted by our Society.[17]
The plan is inconsistent with Executive Order 13195, Trails for America in the 21st Century (January 18, 2011), which directs Federal agencies to protect the trail corridors [including those shown on Map 41] associated with national scenic trails to the degrees necessary to ensure that the values for which each trail was established remain intact.
The plan is inconsistent with the Administrative Procedure Act (5 U.S.C. § 706 (2)(A)) because reliance upon the inappropriate and outdated factors it cites for locating the Trail (build as little new trails as possible and avoid sensitive wildlife habitat) is arbitrary and capricious. Moreover, even if there had been no change in grizzly bear recovery policy, the selection of the existing route would still be arbitrary and capricious because at least the routes depicted on Map 41, which have been surveyed and not excluded from consideration, are entirely on or east of the Continental Divide and not within 'Situation I' grizzly bear habitat.
How the proposed plan decision may be improved. The best course would be to initiate the development of a supplemental environmental impact statement that would be devoted to the evaluation of alternative routes and the establishment of a management area consisting of a corridor of at least one mile in width along its length. While such a review of alternative routes is in progress, corridors being considered should be managed so as to conserve their scenic and other qualities. This process would include location report determinations as specified in the Comprehensive Plan. (Chapter III.F.2.b.(2)) A unit plan would still be needed, but its mandatory findings are essentially identical to those for the location report. (Compare Comprehensive Plan Chapter III.F.2.b(2) with FSM 2353.44b.2.)
The other option is to proceed with adoption of the published plan, with modifications to assure that timely action will be taken to prepare a unit plan that would include selection of a route that respects and implements the nature and purposes of the CDNST. Compliance with NEPA would presumably necessitate the preparation of an environmental impact statement in support of the unit plan.[18]
One essential aspect of this improvement is to incorporate an objective[19] in the description of Management 3.6A that would specify a desired rate of progress toward the desired condition of removing the Trail from roads. We propose the following:
Within three years after this plan revision goes into effect, delineate a route for the Trail.
Within five years after this plan revision goes into effect, complete the construction of the Trail along the delineated route.[20]
In addition, whether the route selection is to be carried out under a supplemental EIS or unit plan, the decision notice should explain the purpose of the objective and the reasons for inserting it.
Also, as discussed above, the maps for Alternative G must be revised to include MA 3.6A, which we believe should depict at least all the routes shown on Map 41.[21] The FEIS should be revised to include MA 3.6A in the tables in Appendix B.
7. Link between prior substantive formal comments and the objection.
In part, this objection concerns an issue – the delineation of a particular corridor for the CDNST without analysis of alternative locations – that arose after the opportunities for formal comment.
More broadly, however, the issue raised in our formal comments (as discussed at length above) can be summarized as follows:
· The nature and purposes of the Continental Divide National Scenic Trail should be observed in selecting its location.[22]
· The existing route, largely on roads, does not meet the desired criteria for selecting the Trail’s location.[23]
· The plan should be improved, in a timely fashion, so as to delineate the route in the light of the nature and purposes of the Trail and the procedures set out in NEPA for environmental review.[24]
· The decision should include direction to initiate such a review promptly.[25]
This letter of objection includes certain observations that were not included in our formal comments, particularly as to (1) the revision of grizzly bear recovery policy and its relationship to the selection of the current route in 1998 and (2) the potential legal consequence (“Catch-22”) of delineating a route in the land management plan upon consideration of a route in the unit plan. Both of these became matters of concern when the 1998 route was identified as the selected location of MA 3.6A; this arose after the opportunities for formal comment.
Additional Notes
Our letters of January 30, 2012 and November 21, 2012 discussed the Forest’s approach (goals, standards, and guidelines, etc.) pertaining to management of the CDNST. We have not addressed these issues in this letter in detail except as they pertain to the location for the Trail.
We were particularly concerned about the impact of development outside MA 3.6A (beyond the foreground) upon the scenic quality enjoyed by users of the Trail and the kind of experience associated with travel in a primitive or semi-primitive nonmotorized setting. The revised forest plan recognizes that “alternatives will be analyzed by the scenery management system and recreation opportunity spectrum proposed by each alternative as they relate to the CDNST.”[26] If, as we have proposed in this letter, alternatives for CDT location are assessed in a timely fashion in a supplemental EIS or in the development of a unit plan, we expect to have an opportunity to raise these issues as they relate to the selected route. We have therefore decided to omit them from review in the objection process.
Similarly, our comments addressed several topics (such as bicycle use and competitive events) that should be reviewed and modified in order to follow the direction of the Comprehensive Plan and FSM more closely. We believe that we can raise these issues as the Forest prepares a unit plan, and so do not include them in this objection.
We assume that if in the course of preparation of a unit plan (or scenery/ROS review), it is determined that the application of the Comprehensive Plan or FSM 2353.44b would be inconsistent with the approved forest management plan, then the management plan itself would be amended to reconcile the documents. If our assumption is unfounded, then the Forest should proceed now to direct the preparation of a supplemental environmental statement that would ensure that the applicable policies with respect to Continental Divide National Scenic Trail management will be followed. The preparation of a SEIS for this purpose would expressly anticipate that the plan now being considered might be amended as needed .
Our focus here has been directed to the removal of the CDNST from its current roaded setting, which in no way can be described as providing “high-quality scenic, primitive hiking and pack and saddle livestock opportunities.” In our judgment, that is the most critical issue, and it needs to be attended to with all deliberate speed.
Conclusion
Although we have serious reservations about the land management plan revision in its current form, we imagine that our goals may in fact be quite similar in substance to the actual intentions of the Shoshone National Forest. On that basis, we would welcome the opportunity to explore with you (with observation by the public) measures that might contribute to the nature and purposes of the Trail while satisfying your concerns as well as ours. Do not hesitate to contact us at any time by phone, e-mail, or otherwise.
Sincerely yours,
/s/ James R. Wolf
James R. Wolf, Director
Continental Divide Trail Society
[1] The mission of the Continental Divide Trail Society, established in 1978, is to help in the planning, development, and maintenance of the CDNST as a silent trail and to assist users plan and enjoy their experiences along the route. We have approximately 250 members, from all parts of the United States and several countries overseas. Members of our Society hike the CDNST, including portions within the Shoshone National Forest, every year.
[2] Draft land management plan, p. 173.
[3] The relocation of particular segments of the CDNST is often reviewed as a project apart from the preparation of either the land management plan or a unit plan. See 2009 Comprehensive Plan, III.F and IV.B.1,2. For example, the Bridger-Teton National Forest route in the Leeds Creek area south of Sheridan Pass is currently under review as a site-specific project. The delineation there in a project plan – not unit plan – review would avoid the Catch-22 concern. In the current situation, however, which involves direction for all segments of the CDNST within the Shoshone National Forest in conjunction with the revision of the land management plan, development of a supplemental EIS or unit plan pursuant to FSM 2353.44b would be the proper course.
[4] The inadequacy of the 1998 environmental assessment as a basis for current site selection is reviewed below in our discussion of the preliminary need to change the existing plan
[5] If the Forest Service does not select Alternative G for implementation, the maps for the selected alternative should also be redrawn to depict Management Area 3.6A. (As stated in connection with the third basis of our objection, we believe all the maps shown on Map 41 should be managed as the CDNST until a selection has been made by way of a supplemental environmental impact statement or unit plan.)
[6] Letter dated November 17, 2010, appended in Attachment A. We provided more specific suggestions, including locations and scenic and historic values, in IMPROVEMENTS IN THE LOCATION OF THE TRAIL, in our comment letter on the proposed draft plan, dated January 30, 2012, also appended in Attachment A.
[7] Letter dated November 21, 2012, appended in Attachment A.
[8] Comment letter, Nov. 21, 2012, p. 4 (citing Executive Order 13195, January 18, 2011).
[9] Record of Decision, Final Route Selection, CDNST, signed by Rebecca Aus, Forest Supervisor, Feb. 27, 1998, p.8.
[10] 36 CFR 219.7(c)(2)(i).
[11] “Upon implementation of this Conservation Strategy, management using a recovery zone line and grizzly bear Management Situations … will no longer be necessary.” Fish and Wildlife Service, Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area, p.14. (See 72 Fed.Reg. 11376, March 13, 2007 for link.) An Associated Press notice on February 27, 2014 reports that “a government-sponsored research team has concluded there are no signs of decline among Yellowstone’s grizzly bears as officials consider lifting the animals’ federal protections … Members of the Interagency Grizzly Bear Study team say in a new study that data collected on the threatened bruins over the past several decades contradict claims that the animals could be in serious trouble.”
[12] See Additional Notes, below, regarding our assumptions with respect to management policies for MA 3.6A.
[13] Land management plan, p. 161
[14] Comprehensive Plan, IV.B.5 a.(4).
[15] 16 U.S.C. § 1600 (note), amending the Forest and Rangeland Renewable Resources Planning Act of 1974.
[16]36 CFR § 219.7(c)(2)(i). Also, see discussion above, following footnote 9 – in particular, the bulleted items dealing with the need to change the existing plan.
[17] 42 U.S.C. §§ 4321 et seq. and regulations of the Council on Environmental Quality, 40 CFR Parts 1500-1508 [§ 1502.14 (a) (reasonable alternatives), § 1503.4 (response to comments)]. See Attachment B. Council on Environmental Quality, Forty Questions [46 Fed. Reg. 18026 (March 23, 1981, as amended], No. 29.]
[18] See Additional Notes, below, which posits that the published plan might need to be, and would be, modified as necessary to assure that MA 3.6A will be managed in a manner consistent with CDNST policies (Comprehensive Plan, FSM 2353.44b).
[19] “An objective is a concise, measurable, and time-specific statement of a desired rate of progress toward a desired condition or conditions. Objectives should be based on reasonably foreseeable budgets.” 36 C.F.R. § 219.7(e)(1).
[20] The Society’s comments on the Proposed Draft Plan, January 30, 2012, suggested inclusion of an objective to: “Complete the CDNST travel route through the Management Area by [year, perhaps 2017].”
[21] Other routing proposals, such as an alignment south from Togwotee Pass to Sheridan Pass via Pink Creek and Moccasin Basin, might also be included. Comment letter, Nov 21, 2012, footnote 4 [footnote 30 in Attachment A).
[22] “There is no assurance that management under the approved MAs will in fact serve the nature and purposes of the CDNST.” Comment letter, Nov. 21, 2012.
[23] “… the goal is clear and it is relocate the Trail off motorized roads.” Ibid.
[24] “… the Forest Service needs to include in its record of decision a directive to initiate without delay the preparation of a unit plan that will define the location of the CDNST corridor and provide the necessary prescriptions for its management.” “The unit planning process will provide the opportunity to formalize a particular route as the location of the Trail. Some alternative locations are depicted on Map 41; we understand that these routes reflect recent field investigations … that would provide the necessary information for an environmental assessment in support of the MA 3.6A corridor.” Comment letter, Nov. 21, 2012. NEPA review is also addressed specifically in the scoping comments: “matters related to location … should be resolved at an early date … so that an approved location (and management area) can be shown in the draft environmental statement.”
[25] Ibid.
[26] Plan, p. 495.
[submitted March 22, 2014 by the Continental Divide Trail Society (James R. Wolf, Director)]
The Continental Divide Trail Society[1], in accordance with 36 CFR § 219.50 et seq., hereby submits an objection to the 2014 Revision to the Shoshone National Forest Land Management Plan. This submission relates primarily to issues involving the location of the Continental Divide National Scenic Trail.
The first basis for this objection relates to the Forest’s change of the Plan, which now delineates a corridor for the Continental Divide National Scenic Trail (CDNST). The Plan that had been circulated for review contains goals, standards, and guidelines for CDNST Management Area 3.6A[2], but neither specifies any particular location nor depicts any such location on maps distributed for review. It describes the management area to include an unspecified corridor within 0.5 mile of centerline of the Trail location. The change occurs on page 161, where the words “See Map O” have been added. Map O – another addition – depicts a one-mile corridor and identifies it as MA 3.6A.
The issue regarding the Forest’s delineation of one particular corridor for the CDNST arose after the opportunities for formal comment. If this action had been included in the draft plan, with just this one route shown as MA 3.6A on maps in the DEIS, we would have disapproved, as we do today.
Forest Service directives related to the CDNST contemplate that the location of the Trail will be established in the planning process one of two ways – as part of the plan revision process (FSM 2353.44b 1.) or in the course of development of a CDNST unit plan (FSM 2353.44b 2.). Reasonable alternatives would need to be considered in either case.
However, it is improper to delineate the route in the land management plan without having carried out an environmental review of alternative locations. This is especially the case because, in that event, the selected route would not require further consideration in the unit plan. (“A CDNST unit plan must … except where delineated in the applicable land management plan, establish a management area for the segments of the CDNST that traverse that unit … .” FSM 2353.44b 2.b.)
This may give rise to a “Catch-22” situation: we (and other interested persons) have not been offered the chance to participate in the routing of the Trail in accordance with NEPA; and when a unit plan is prepared, we may be denied the opportunity to raise this concern inasmuch as the route had already been delineated in the land management plan. That would not be faithful to the intent of the directive, nor would it “provide for high-quality scenic, primitive hiking and horseback riding opportunities,” in accordance with the 2009 Comprehensive Plan .
Route selection may still be carried out in the management plan with evaluation in a supplemental environmental impact statement. Otherwise, this task should be included in a unit plan.[3]
A further reason that the selection of the existing route (as shown on Map O) should be set aside for failure to consider alternatives is that the factors relied upon in the 1998 environmental assessment are no longer sufficient in view of changed circumstances (including grizzly bear recovery and the adoption of new policies as set out in the 2009 Comprehensive Plan for the CDNST and the adoption of FSM 2353.44b).[4]
The second basis of our objection is the ambiguity that results from having multiple management areas covering the same portions of the Forest. This conflict is evident from a comparison of maps in the FEIS. Map O is labeled as depicting the CDNST (MA 3.6A). The corridor shown on Map O as the CDNST does not appear on Map 79 (Alternative G, pages 6 and 8). Instead, the lands within that corridor are assigned to several prescriptions, including MA 5.1 (managed forest and rangeland). The goals and direction for MA 3.6A and MA 5.1 (as well as 3.3, 3.5, and 4.2) are quite different, for example with respect to suitability for timber production.
There is no assurance that MA 3.6A is meant to be the governing prescription where this overlap occurs. After all, under Alternative G, no acres have been allocated for management as MA 3.6A (FEIS, Appendix B, Table 2); no scenic integrity objectives have been identified for MA 3.6A (Id., Table 20); and no ROS objectives have been assigned (Id., Table 22). Even if MA 3.6A prescriptions are intended to govern, the absence of this information on the Alternative G maps may lead administrators to overlook it when making management decisions. To eliminate the ambiguity, the relevant maps for Alternative G must be withdrawn and replaced by maps that mark lands within the CDNST corridor as MA 3.6A.[5] (The FEIS should also be corrected, both in text and tables, so as to incorporate the missing information.)
The third basis of our objection is that the plan does not assure that the Forest will conduct a timely review of alternative locations, including alternatives that would lead to further progress toward the goal of removing the CDNST from roads.
The issue of CDNST location has long been in the forefront of the concerns we have provided to the Forest. Our scoping comments recommended that a particular location should be included in the Plan, but it was our expectation that this would be based upon an examination of alternatives so that an approved location “can be shown in the draft environmental impact statement.” We indicated our desire “to work with you to identify and evaluate alternate routes in the area.” [6]
We continue to believe that a route selection, based upon a careful consideration of reasonable alternatives with public participation in accordance with the provisions of NEPA, might have provided a sound basis for delineation of the CDNST route in the management plan. The draft plan and DEIS, as noted above, did not identify any specific location for the CDNST management area. It did, however, show the route of several alternatives on Map 41. In the DEIS, two of these alternatives were described as “proposed re-routes that have had cultural resource and botanical surveys completed.” The relocation processes were described as “ongoing [and] considered as a reasonably foreseeable future action” (DEIS, p. 506).
Our response[7] again called for the identification of specific trail segments. We indicated our desire for these determinations to be made as part of the land management plan itself, but otherwise “they should be made as soon as possible by the consideration and adoption of a unit plan.” We proposed that all of the locations drawn on Map 41 should be included within Management Area 3.6A; upon selection of a particular route in accordance with NEPA, the non-selected alternatives would revert to the prescription for their surrounding areas. This would serve to protect the national scenic trail corridor to the degree necessary to ensure that the values for which the Trail was established remain intact.[8]
Had the Plan been revised to include all the Map 41 corridors in Management Area 3.6A, we would have less reason to object. The Forest would then proceed to select a specific route with appropriate environmental review, either by way of a supplemental environmental impact statement directed to the route selection issue or by way of the consideration and adoption of a unit plan, which also would require environmental review.
We recognized that the Forest was probably not inclined to proceed with this kind of review before finalizing its land management plan, so we noted our “anticipation” that the location of the Trail would remain unidentified. (We did not expect that the Forest would choose the unsatisfactory and largely roaded current route as the sole corridor for the CDNST.) In the absence of a NEPA review of prospective CDNST locations, we were concerned that management in accordance with any of the alternatives (A-F in the DEIS) would not in fact serve the nature and purposes of the Trail.
Although we acquiesced in the deferral of route selection, we did so in recognition of the provisions of FSM 2353.44b, cited above. This would afford an opportunity to examine alternative routings and delineate a route, as part of a unit plan, that would serve the nature and purposes of the Trail.
We were concerned, however, that other priorities might result in continued delay in achieving the goal to remove the CDNST route from roads and to enhance the scenic setting. Accordingly, we called for the record of decision to include a directive to initiate the preparation of a unit plan without delay. Back in 1998, the Forest observed that “additional field reconnaissance is needed to find the best place for new trail segments. Construction of new trail segments will depend on availability of funds, and it may be quite a few years before these are completed.”[9] The map accompanying the decision, consistent with this reservation, bears the legend “Final route to be determined.” But when?
We acknowledge the Forest’s intention at some point to address this concern. For example at page 50 of the FEIS it advises that “changes to the CDNST are considered site-specific projects and will be addressed in project planning.” (FEIS, p.50) Also, the Forest notes that two proposed re-routes have had cultural resource and botanical surveys completed; in developing a unit plan, alternatives (such as these) “will be analyzed by the scenery management system and recreation opportunity spectrum proposed by each alternative as they relate to the CDNST.” (FEIS, pp. 494-495). Other environmental factors will of course also need to be considered, including policies for grizzly bear recovery that have changed over the past several years.
CDNST relocation planning processes are said to be ongoing, so that “they were considered a reasonably foreseeable future action.” FEIS, p.520). After 16 years of inaction, that is woefully inadequate. We object to the lack of a firm commitment to commence an evaluation of alternative locations for the CDNST as soon as the revised land management plan goes into effect. Unless the Forest addresses this concern with an SEIS, the most orderly way to proceed would be to begin scoping for a unit plan (as expressed as a “next step” in our November 2012 comments). Further, as we stated in those comments, “the Forest Service should take appropriate measures to ensure that any projects approved before the CDNST unit plan is adopted will be consistent with the nature and purposes of the Trail, including the routes appearing on Map 41 as well as the existing route.” A timetable should be included as well.
In developing a proposed plan revision, the responsible official must review relevant information to identify a preliminary need to change the existing plan and to inform the development of plan components and other plan content.[10] Clearly, the value of considering alternative routes has been recognized. Unfortunately, however, in the absence of direction to schedule this task for prompt attention, it does not adequately “inform the development of plan components.”
Important information giving rise to at least a preliminary need to change the existing plan with respect to CDNST location include:
· Changed policies and circumstances with respect to grizzly bear recovery and management. In 1998, when the current route was selected, the Forest was concerned that “routes on the west side of the divide would cross 'Situation I' grizzly bear habitat, where habitat maintenance and bear-human conflict minimization receive the highest priority.” (EA, p.9; ROD p.7) These days, there is a Primary Conservation Area for grizzly bear recovery, but it includes substantial areas both east and west of the Continental Divide, with no differentiation between them.[11]
· The completion of cultural resource and botanical surveys for two proposed re-routes.
· The passage of 16 years since the interim route was selected, with a recognition at that time of a “need” for additional field reconnaissance and the map legend “Final route not determined.”
· Adoption of the new CDNST Comprehensive Plan (2009), along with issuance of FSM 2355.44b, with their emphasis upon locating the Trail off of roads.
In summary, the Shoshone National Forest should proceed without delay to delineate the route of the Continental Divide National Scenic Trail in a manner that provides an evaluation of alternative locations in accordance with applicable direction (including the National Trails System Act, the National Environmental Policy Act, the 2009 Comprehensive Plan for the CDNST, and FSM 2353.44b 2). The corridor depicted on Map O may need to continue in use on a temporary basis; however, the settings of the Map 41 alternatives should be managed to preserve scenic qualities and ROS classifications satisfying the desired conditions of MA 3.6A. Other alternatives may also merit consideration in light of comments submitted in response to a scoping request.
· Unless the maps for Alternative G are replaced, lands shown as being in MA 5.1 as well as MA 3.6A might be used for timber production even though that would not be compatible with the achievement of desired conditions for the CDNST. Even if this conflict were eliminated, timber production outside the CDNST corridor may still not be compatible with the achievement of such desired conditions because of degradation of scenic quality as observed by Trail users.
· For these reasons, the plan fails to “provide for … appropriate management of … designated areas” [such as a national scenic trail]. 36 CFR § 219.10(b)(vi).
The plan is inconsistent with the National Environmental Policy Act insofar as it fails to provide for consideration of alternative locations for the CDNST in the plan or otherwise in a timely fashion. It is also inconsistent with NEPA because of a failure to respond to timely substantive comments submitted by our Society.[17]
The plan is inconsistent with Executive Order 13195, Trails for America in the 21st Century (January 18, 2011), which directs Federal agencies to protect the trail corridors [including those shown on Map 41] associated with national scenic trails to the degrees necessary to ensure that the values for which each trail was established remain intact.
The plan is inconsistent with the Administrative Procedure Act (5 U.S.C. § 706 (2)(A)) because reliance upon the inappropriate and outdated factors it cites for locating the Trail (build as little new trails as possible and avoid sensitive wildlife habitat) is arbitrary and capricious. Moreover, even if there had been no change in grizzly bear recovery policy, the selection of the existing route would still be arbitrary and capricious because at least the routes depicted on Map 41, which have been surveyed and not excluded from consideration, are entirely on or east of the Continental Divide and not within 'Situation I' grizzly bear habitat.
How the proposed plan decision may be improved. The best course would be to initiate the development of a supplemental environmental impact statement that would be devoted to the evaluation of alternative routes and the establishment of a management area consisting of a corridor of at least one mile in width along its length. While such a review of alternative routes is in progress, corridors being considered should be managed so as to conserve their scenic and other qualities. This process would include location report determinations as specified in the Comprehensive Plan. (Chapter III.F.2.b.(2)) A unit plan would still be needed, but its mandatory findings are essentially identical to those for the location report. (Compare Comprehensive Plan Chapter III.F.2.b(2) with FSM 2353.44b.2.)
The other option is to proceed with adoption of the published plan, with modifications to assure that timely action will be taken to prepare a unit plan that would include selection of a route that respects and implements the nature and purposes of the CDNST. Compliance with NEPA would presumably necessitate the preparation of an environmental impact statement in support of the unit plan.[18]
One essential aspect of this improvement is to incorporate an objective[19] in the description of Management 3.6A that would specify a desired rate of progress toward the desired condition of removing the Trail from roads. We propose the following:
Within three years after this plan revision goes into effect, delineate a route for the Trail.
Within five years after this plan revision goes into effect, complete the construction of the Trail along the delineated route.[20]
In addition, whether the route selection is to be carried out under a supplemental EIS or unit plan, the decision notice should explain the purpose of the objective and the reasons for inserting it.
Also, as discussed above, the maps for Alternative G must be revised to include MA 3.6A, which we believe should depict at least all the routes shown on Map 41.[21] The FEIS should be revised to include MA 3.6A in the tables in Appendix B.
7. Link between prior substantive formal comments and the objection.
In part, this objection concerns an issue – the delineation of a particular corridor for the CDNST without analysis of alternative locations – that arose after the opportunities for formal comment.
More broadly, however, the issue raised in our formal comments (as discussed at length above) can be summarized as follows:
· The nature and purposes of the Continental Divide National Scenic Trail should be observed in selecting its location.[22]
· The existing route, largely on roads, does not meet the desired criteria for selecting the Trail’s location.[23]
· The plan should be improved, in a timely fashion, so as to delineate the route in the light of the nature and purposes of the Trail and the procedures set out in NEPA for environmental review.[24]
· The decision should include direction to initiate such a review promptly.[25]
This letter of objection includes certain observations that were not included in our formal comments, particularly as to (1) the revision of grizzly bear recovery policy and its relationship to the selection of the current route in 1998 and (2) the potential legal consequence (“Catch-22”) of delineating a route in the land management plan upon consideration of a route in the unit plan. Both of these became matters of concern when the 1998 route was identified as the selected location of MA 3.6A; this arose after the opportunities for formal comment.
Additional Notes
Our letters of January 30, 2012 and November 21, 2012 discussed the Forest’s approach (goals, standards, and guidelines, etc.) pertaining to management of the CDNST. We have not addressed these issues in this letter in detail except as they pertain to the location for the Trail.
We were particularly concerned about the impact of development outside MA 3.6A (beyond the foreground) upon the scenic quality enjoyed by users of the Trail and the kind of experience associated with travel in a primitive or semi-primitive nonmotorized setting. The revised forest plan recognizes that “alternatives will be analyzed by the scenery management system and recreation opportunity spectrum proposed by each alternative as they relate to the CDNST.”[26] If, as we have proposed in this letter, alternatives for CDT location are assessed in a timely fashion in a supplemental EIS or in the development of a unit plan, we expect to have an opportunity to raise these issues as they relate to the selected route. We have therefore decided to omit them from review in the objection process.
Similarly, our comments addressed several topics (such as bicycle use and competitive events) that should be reviewed and modified in order to follow the direction of the Comprehensive Plan and FSM more closely. We believe that we can raise these issues as the Forest prepares a unit plan, and so do not include them in this objection.
We assume that if in the course of preparation of a unit plan (or scenery/ROS review), it is determined that the application of the Comprehensive Plan or FSM 2353.44b would be inconsistent with the approved forest management plan, then the management plan itself would be amended to reconcile the documents. If our assumption is unfounded, then the Forest should proceed now to direct the preparation of a supplemental environmental statement that would ensure that the applicable policies with respect to Continental Divide National Scenic Trail management will be followed. The preparation of a SEIS for this purpose would expressly anticipate that the plan now being considered might be amended as needed .
Our focus here has been directed to the removal of the CDNST from its current roaded setting, which in no way can be described as providing “high-quality scenic, primitive hiking and pack and saddle livestock opportunities.” In our judgment, that is the most critical issue, and it needs to be attended to with all deliberate speed.
Conclusion
Although we have serious reservations about the land management plan revision in its current form, we imagine that our goals may in fact be quite similar in substance to the actual intentions of the Shoshone National Forest. On that basis, we would welcome the opportunity to explore with you (with observation by the public) measures that might contribute to the nature and purposes of the Trail while satisfying your concerns as well as ours. Do not hesitate to contact us at any time by phone, e-mail, or otherwise.
Sincerely yours,
/s/ James R. Wolf
James R. Wolf, Director
Continental Divide Trail Society
[1] The mission of the Continental Divide Trail Society, established in 1978, is to help in the planning, development, and maintenance of the CDNST as a silent trail and to assist users plan and enjoy their experiences along the route. We have approximately 250 members, from all parts of the United States and several countries overseas. Members of our Society hike the CDNST, including portions within the Shoshone National Forest, every year.
[2] Draft land management plan, p. 173.
[3] The relocation of particular segments of the CDNST is often reviewed as a project apart from the preparation of either the land management plan or a unit plan. See 2009 Comprehensive Plan, III.F and IV.B.1,2. For example, the Bridger-Teton National Forest route in the Leeds Creek area south of Sheridan Pass is currently under review as a site-specific project. The delineation there in a project plan – not unit plan – review would avoid the Catch-22 concern. In the current situation, however, which involves direction for all segments of the CDNST within the Shoshone National Forest in conjunction with the revision of the land management plan, development of a supplemental EIS or unit plan pursuant to FSM 2353.44b would be the proper course.
[4] The inadequacy of the 1998 environmental assessment as a basis for current site selection is reviewed below in our discussion of the preliminary need to change the existing plan
[5] If the Forest Service does not select Alternative G for implementation, the maps for the selected alternative should also be redrawn to depict Management Area 3.6A. (As stated in connection with the third basis of our objection, we believe all the maps shown on Map 41 should be managed as the CDNST until a selection has been made by way of a supplemental environmental impact statement or unit plan.)
[6] Letter dated November 17, 2010, appended in Attachment A. We provided more specific suggestions, including locations and scenic and historic values, in IMPROVEMENTS IN THE LOCATION OF THE TRAIL, in our comment letter on the proposed draft plan, dated January 30, 2012, also appended in Attachment A.
[7] Letter dated November 21, 2012, appended in Attachment A.
[8] Comment letter, Nov. 21, 2012, p. 4 (citing Executive Order 13195, January 18, 2011).
[9] Record of Decision, Final Route Selection, CDNST, signed by Rebecca Aus, Forest Supervisor, Feb. 27, 1998, p.8.
[10] 36 CFR 219.7(c)(2)(i).
[11] “Upon implementation of this Conservation Strategy, management using a recovery zone line and grizzly bear Management Situations … will no longer be necessary.” Fish and Wildlife Service, Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area, p.14. (See 72 Fed.Reg. 11376, March 13, 2007 for link.) An Associated Press notice on February 27, 2014 reports that “a government-sponsored research team has concluded there are no signs of decline among Yellowstone’s grizzly bears as officials consider lifting the animals’ federal protections … Members of the Interagency Grizzly Bear Study team say in a new study that data collected on the threatened bruins over the past several decades contradict claims that the animals could be in serious trouble.”
[12] See Additional Notes, below, regarding our assumptions with respect to management policies for MA 3.6A.
[13] Land management plan, p. 161
[14] Comprehensive Plan, IV.B.5 a.(4).
[15] 16 U.S.C. § 1600 (note), amending the Forest and Rangeland Renewable Resources Planning Act of 1974.
[16]36 CFR § 219.7(c)(2)(i). Also, see discussion above, following footnote 9 – in particular, the bulleted items dealing with the need to change the existing plan.
[17] 42 U.S.C. §§ 4321 et seq. and regulations of the Council on Environmental Quality, 40 CFR Parts 1500-1508 [§ 1502.14 (a) (reasonable alternatives), § 1503.4 (response to comments)]. See Attachment B. Council on Environmental Quality, Forty Questions [46 Fed. Reg. 18026 (March 23, 1981, as amended], No. 29.]
[18] See Additional Notes, below, which posits that the published plan might need to be, and would be, modified as necessary to assure that MA 3.6A will be managed in a manner consistent with CDNST policies (Comprehensive Plan, FSM 2353.44b).
[19] “An objective is a concise, measurable, and time-specific statement of a desired rate of progress toward a desired condition or conditions. Objectives should be based on reasonably foreseeable budgets.” 36 C.F.R. § 219.7(e)(1).
[20] The Society’s comments on the Proposed Draft Plan, January 30, 2012, suggested inclusion of an objective to: “Complete the CDNST travel route through the Management Area by [year, perhaps 2017].”
[21] Other routing proposals, such as an alignment south from Togwotee Pass to Sheridan Pass via Pink Creek and Moccasin Basin, might also be included. Comment letter, Nov 21, 2012, footnote 4 [footnote 30 in Attachment A).
[22] “There is no assurance that management under the approved MAs will in fact serve the nature and purposes of the CDNST.” Comment letter, Nov. 21, 2012.
[23] “… the goal is clear and it is relocate the Trail off motorized roads.” Ibid.
[24] “… the Forest Service needs to include in its record of decision a directive to initiate without delay the preparation of a unit plan that will define the location of the CDNST corridor and provide the necessary prescriptions for its management.” “The unit planning process will provide the opportunity to formalize a particular route as the location of the Trail. Some alternative locations are depicted on Map 41; we understand that these routes reflect recent field investigations … that would provide the necessary information for an environmental assessment in support of the MA 3.6A corridor.” Comment letter, Nov. 21, 2012. NEPA review is also addressed specifically in the scoping comments: “matters related to location … should be resolved at an early date … so that an approved location (and management area) can be shown in the draft environmental statement.”
[25] Ibid.
[26] Plan, p. 495.