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By: Robert Janis

New Mexico OHV Alliance

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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