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By: Robert Janis
Know the Rules -- A
Case Study
Dedicated OHV’ers understands that it is
essential to keep an eye on the government
agencies and departments that have authority
over the various trail systems around the
country, but it is not enough to monitor the
actions of these groups. One must be aware of
the rules and regulations these agencies and
departments must follow and use that knowledge
to hold them accountable.
Witness the experience of Mark Werkmeister,
president of the New Mexico Off-Highway Vehicle
Alliance. Recently the U.S. Forest Service was
to propose a travel management action concerning
districts in the Carson National Forest in New
Mexico. During the process Werkmeister noticed
that the Forest Service was not following its
own procedures. He called them on it and forced
them to re-issue the proposed action with the
proper 30-day comment period.
Defining the Process
Werkmeister explained. “The typical process for
Travel Management rule implementation is for the
Forest Service to put out a proposed action.
That starts the official legal process and
signals that the Forest Service is going into
public scoping. They go through the scoping, and
then they typically go into an analysis stage
during which they draft an Environmental
Assessment (EA). They issue the draft
Environmental Assessment to the public for
comment, address the comments they receive and
then issue a final Environmental Assessment and
their decision.”
Werkmeister defined an Environmental Assessment
as a document used to decide if the Forest
Service is required to do a full Environmental
Impact Statement (EIS). “What we’ve seen is that
very rarely does the Forest Service write an
Environmental Assessment without knowing if they
are going to do an Environmental Impact
Statement,” explained Werkmeister.
Under the rules of the National Environmental
Policy Act (NEPA), the Forest Service does not
have to complete a full EIS, but only if the EA
shows that the proposed action would not have a
significant impact on their decision. In this
case, they can do an Environmental Assessment
without including an Environmental Impact
Statement.
According to Werkmeister, if a full EIS is
required, the regulation calls for a report that
has much more analysis and study than the
Environmental Assessment. It is a lot more
expensive to do and there are specific rules
that the EIS must follow that are a lot more
detailed that the Environmental Impact Statement
must follow.
Werkmeister noted that in order to have legal
standing for an appeal of either an EIS or EA,
substantive comments must be written during a
specified public comment period. The comments
are limited to what is in the document. If the
public files an appeal, the appeals process
takes place within the Forest Service. The
Appeals Deciding Officer can reject the appeal;
remand specific portions of the document back
for revision; or they can send it back to the
district to do the whole thing all over again.
Finally, once the appeals process concludes, the
public can challenge the document in court as a
last resort.
“To take the Forest Service to court for
closures, you have to follow the whole process
or else the judge will toss out the lawsuit,”
said Werkmeister.
A Screwed-Up Process
Werkmeister explained that the Forest Service
issued a proposed action for Travel Management
on several districts of the Carson National
Forest in January of this year. “They provided
time for scoping comments, then in July, instead
of coming out with the draft Environmental
Assessment that could be commented on, they
re-issued the proposed action with some
additional information,” continued Werkmeister.
“They gave the public 30 days to comment. They
also announced that they would not be doing a
draft Environmental Assessment and that the
second issuing of the proposed action
constituted their involvement with the public
that they are required to do. Then they said
that once they got the comments they would do an
Environmental Assessment and issue their
decision.
Werkmeister realized that this action would
severely affect the OHV’ers right to appeal
because they would be commenting on an
incomplete document which would then be
completed AFTER the comment period.
“This is a big deal,” said Werkmeister. “What we
have found in travel management procedures in
New Mexico is that a lot of times the quality of
the analysis is lacking. There is a lot of
really sloppy science that is put out in these
documents. And, if you don’t have a full
document, then you can’t look for the bad stuff,
you can’t comment on it, and you can’t appeal.
In short, the Forest Service has short changed
the public by limiting the material on which
they can comment and ultimately appeal.”
So Werkmeister drafted a letter to the
supervisor of the Carson National Forest
alerting him of the problem and calling for a
remedy. He argued that by limiting the public’s
ability to comment on the effects analysis,
which is the cornerstone of an Environmental
Assessment document, they had removed the
public’s right to make substantive comments.
Also, that was not in compliance with the
National Environmental Protection Act.
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