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By: Robert Janis

New Mexico OHV Alliance

Know the Rules to Successfully Challenge Road and Trail Closures--A Case Study

Continued from page 1...

So after the Final EA had been released, Spivack and Werkmeister reviewed the document and decided to draft an appeal. Spivack noted that simply complaining about the decision would not suffice. Instead,  the appeal had to be based on specific mistakes in the Final EA, and those mistakes had to be clearly described and defined. “The analogy I like to use is a mistrial in a court,” said Spivack. “What are the grounds of a mistrial? Certain rules of juridical procedure were not followed. That’s exactly the same thing in the NEPA process. In a court case if someone is convicted of a crime you can’t get a mistrial declared because you don’t like the verdict. You get the mistrial declared because certain rules were broken--the jury was compromised, the jury instruction was wrong, evidence wasn’t admitted, some procedure of cross examination wasn’t followed properly. It is all procedural. NEPA works the same way.”

However, it is this that has caused OHV proponents so much trouble, complained Spivack. “This is why OHV people have been getting their butts kicked for decades as far as successfully appealing a Travel Management Plan,” she said. “We haven’t understood what the environmentalists understand. When the environmentalists do a successful appeal they base it on procedural complaints. They point out where the Forest Service did not follow rules in the process, “said Spivack. “Under the regulations and the law, that is the ONLY thing you can challenge. You must challenge HOW they did the EA. You cannot challenge the closure decisions themselves. The Forest Service uses the EA or EIS to justify the closures. We argued that the EA was wrong.”

So, in order to successfully challenge a Travel Management Plan you have to find a mistake in procedure.
Spivack and Werkmeister found a plethora of errors. For example, the Final EA claimed that access to trails and roads would cause harm to different animal species. However, in the detailed report that accompanied the Final EA wildlife biologists said that there wasn’t any harm. Moreover, the monitoring reports of past years that also accompanied the Final EA said that the species were doing fine. “So what the EA was saying about the animals didn’t match the fact, and that’s a serious mistake,” said Spivack.

Another issue which the appeal noted was a report by a hydrologist who studies the water and soil resources who looked at the entire region as a riparian area or area next to water. “The rules say that no roads can be within 300 feet of a riparian area,” said Spivack. “That meant that most of the roads were judged as ‘too close’ to streams. However, there are at least a dozen parts of the EA which say that it is a dry area, and that there is no running water other than intermittent streams due to rain or melted snow. There is a five-mile stretch of real stream and that’s all. The chart shown in the EA itself said that if an area is dry, a road can be as close as 50 feet to a stream channel. The hydrologist set up his analysis on a false assumption that created the false conclusion that most of the roads had to be closed. You just have to use your head and ask ’does this make any sense?’ If it doesn’t, it is probably wrong. ”

Spivack and Werkmeister each filed separate appeals which included a total of 13 or 14 issues. It took only a few to get Region 3, which is the New Mexico and Arizona Office of the Forest Service, to reverse the Final EA. “Basically what we were arguing was that they weren’t telling the truth in the EA,” said Spivack. “NEPA rules are our friend. They are the only rules we have to keep the Forest Service’s feet to the fire, to make them tell us the truth. It’s really sad when I hear OHV’ers say that trails are being closed because NEPA is against OHV recreation. They don’t understand that the NEPA rules are the only tools we have in this fight.”

Anyone or any organization can do what Spivack and Werkmeister achieved. However, it takes an awful lot of leg work, time, and research. Moreover, it is essential to get involved early, very early--like when the Forest Service starts to draft its initial EA or EIS. For example, the New Mexico Off-Highway Vehicle Alliance and its member clubs have been working on this for two years. And it is most important to follow the procedures step-by-step so that you have standing throughout the appeals process. If you lose an appeal of a Final EA or EIS, you can sue; but you have no chance to win your lawsuit unless you have established standing by following every step of the appeal process.

First, Spivack advised that you know how the process works and read the documents. “There is plenty of information on the Internet about this process. Environmental organization websites have a lot. Then get copies of the EA or EIS and the underlying reports. They’re called specialists reports,” she said. “Keep in mind that the EA or the EIS is supposed to prove something. Your job is to prove they didn’t prove OHV use is bad. That means they have no good reasons to close roads and trails to us. They can’t just close something because they feel like it.”

Spivack added that before the drafting of an EA or EIS there are usually a round of public meetings to gather and discuss information. Go to those meetings or make certain that a representative is present at the meetings so that you know exactly what is going on as the process proceeds.

So, is the Travel Management Plan for the Mountainair Ranger District of the Cibola National Forest over?  No, it’s far from it. In fact, the process starts all over again. Also, Spivack and Werkmeister must again attend all the meetings, review the first and final drafts of the EA, and appeal all over again should they find errors with the new plan.

Spivack concluded that OHV’ers must be vigilant. She noted that the Travel Management rule has wording that appears to order the Forest Service to revisit the issue every year or so to determine if any changes should be made to a current Travel Management decision. Spivack said that she hears OHV’ers say they ‘don’t have to bother’ getting involved now because they can get their trails added back later with these reviews. She said people are fooling themselves if they believe this. “First of all, the trails get closed because that is what the Forest Service wants,” said Spivack. “They aren’t going to change their minds a year or two later. Second, there really is no obligation for the Forest Service to review the decision at all. They could satisfy the review clause by writing a three-line paragraph once a year, saying we decided no changes are necessary. Third, opening up the decision cuts both ways. The environmentalists see it as an opportunity to convince the Forest Service to close even MORE roads and trails. Fourth, the laws provide no way for us to make them review anything after the decision is made. The ONLY time we have any power is during the NEPA process.

“The battle to keep our access to trails is never over,” she continued. “The good news is that it CAN be done if you know what to do and you’re tough enough to see it through. No one else is going to do this for us. Remember, only YOU can prevent bad NEPA decisions.”

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