by The Flatlander for
Summary: This is an Optical Character Recognition (OCR) copy of the Forest Service's DECISION on the Blanca Peak Appeals including the "Responses to Comments Received During the Appeal Period ..." It includes the full text of the letters mailed to everyone who filed and appeal.
United States Forest Rocky P.O. Box 25127 Department of Service Mountain Lakewood, CO 80225-0127 Agriculture Region Delivery: 740 Sinims St. Golden, Co 80401 File Code: 1570 (96-02-09-0042) Date: MAY 17, 1996 Dear Appellant: Pursuant to 36 CFR Part 215, I have reviewed the appeal record with regard to your appeal of the decision of District Ranger Carlos Pinto concerning the Como Lake Area. I have also considered the written recommendation of the Appeal Reviewing Officer respecting the disposition of your appeal. The Reviewing Officer's review focused on the decision documentation developed by the District Ranger and the concerns raised in your appeal. DECISION The Reviewing Officer, based on his review of the record, found no evidence of the District Ranger's decision violating law, regulation or policy, and he recommended that the decision be affirmed in whole with respect to your appeal. After my review of the appeal record, I concur with the Appeal Reviewing Officer's recommendation and I adopt and incorporate it into my decision. It is enclosed here. Your request for relief is denied. My decision here constitutes the final administrative determination of the Department of Agriculture. Sincerely, TOM L. THOMPSON Deputy Regional Forester Appeal Deciding Officer Enclosure cc: P.Prentice:RO2FO9A
United States Forest Rocky P.O. Box 25127
Department of Service Mountain Lakewood, CO 80225-0127
Agriculture Region Delivery: 740 Simms St.
Golden, CO 80401
File Code: 1570 (96-02-09-0042) Date: MAY 17 1996
Subject: Responses to Comments Received During the Appeal Period
for the Como Lake Area Decision
To: Appeal Deciding Officer
In addition to the joint appeal of the Corno Lake decision filed by the
Colorado Off Highway Vehicle Coalition and the Colorado Association
of 4 Wheel Drive Clubs, I have also reviewed the appeal record with
respect to 89 separately filed appeals of that decision . These 89 appeals
were, for the most part, submitted in a format developed for the specific
purpose of a mass appeal of the Como Lake decision. See in Appeal Record
February 17, 1996 letter from Wayne L. Bennett to the Alamosa Chamber
of Commerce. In these appeals are found fourteen generally common
themes, as outlined below. Each topic is stated together with all related
variations. All statements have been abbreviated, but a sincere effort has
been made to capture the intent of the respondent.
BACKGROUND
The Como Lake Area is located approximately 21 air miles east northeast of
Alamosa, Colorado, and 9 miles due north of the community of Blanca, Colorado.
The primary interest within the area is Forest Development Road #975, which
runs easterly from State Highway 150 through lands administered by the
Bureau of Land Management and onto the Rio Grande National Forest. The
purpose and need for a decision about future use of the road stems from
concerns about soils, water and watershed quality, and aesthetics.
COMMENTS AND DISCUSSION
I. THE ROAD QUALIFIES AS AN R.S. 2477 ROAD AND SHOULD BE PUBLIC.
Supporting statements:
* The road has been open for 100 years
* There is a prescriptive right to use the road
* Decision is arbitrary and capricious
Discussion
The Board of County Commissioners has directed the County Attorney to initiate
the RS 2477 action. However, as was stated in the recommendation for Appeal No.
96-02-09-0045, RS 2477 rights are not at issue below Como Lake since the
Ranger's decision does not preclude travel on this road segment.
II. THE DECISION ELIMINATES ONE OF THE FEATURED CHALLENGES ON THE ROAD.
Supporting statements:
* The decision reduces the appeal of the road
* The Forest Service has previously removed another of the four principle
challenges
* The road is a national resource due to the challenges
* Closing the top section may "close" the entire road, as the goal is to
reach the top
Discussion
The recreational value of the road is acknowledged in the EA, as is the elimination
of one of the challenging spots and the opportunity to enjoy the above-timberline
scenery by way of motorized access. Therefore, the disclosure of these points
and related impacts has been done. The Ranger indicated that there is no
opportunity to mitigate the related effects under the decision. The modified
Alternative II, generally preferred by most respondents, also provides no way
to mitigate resource problems on the section of road above Como Lake.
II. THE SIGNIFICANT ADVERSE ECONOMIC IMPACT OF THE DECISION IS NOT RECOGNIZED.
Supporting statements:
* There is a gross underestimation of economic effects
* The area is already economically stressed
Discussion
This potential impact is acknowledged in the BA, although it is not quantified.
The District Ranger believes the effects will be "minor", based on the Observation
that the most challenging portions of the road w6uld remain open. The respondents
did not provide data or other information to support their contention that the
Ranger's assessment of the economic impacts are underestimated.
IV. THE DECISION IS DISCRIMINATORY.
Supporting statements:
* The decision denies access to the elderly and disabled
* It favors those who are rich and/or young
* The area around the road is wilderness, which is off limits to motorized
use already
* Use of OHV's does not equate to unacceptable environmental damage
* The decision violates the Americans With Disabilities Act
Discussion
This group of concerns is often expressed when restrictions of any kind are
imposed on the use of public lands. The Forest Service is charged with
providing a mix of outdoor recreation opportunities, but these must be within
the land's capability to withstand the impacts of use.
The Americans With Disabilities Act does not mandate universal access to
all public lands without regard for land and resource protection. The intent
is to assure opportunities for those who are disabled, and those who are
fully able, commensurate with preserving the basic productivity of the land.
V. PRE-EXISTING ROADS SHOULD REMAIN OPEN FOR USE.
Supporting statements:
* The impacts have already occurred (scars, sedimentation)
* No significant impacts were identified in the study
Discussion
Documents in the appeal record show that much of the road has stabilized
and that there is a minimal, acceptable level of impacts from motorized use.
But there is also in the record two Forest Service specialist reports which
independently conclude that impacts are unacceptable from continued use
of the road through the bog at the upper end of Como Lake and into the alpine
zone. Both indicate that these impacts are still growing (sedimentation/soil
loss and water degradation), and both recommended closure of the road so
as to protect the bog area and the alpine area above it.
VI. 'THE DECISION SET A PRECEDENT 'THAT WILL INFLUENCE FUTURE CLOSURE PROPOSALS.
Discussion
As with any project level decision, the decision is specific to the issue or
proposal at a given location. The scoping, analyses, discussions, and
decisions for other road closures (or road openings) must follow a basic
set of procedural guidelines, but the outcomes and decisions are unique to
each site and each issue. Because of the specific details and unique
circumstances at any location, it is doubtful that data, analyses, rationale,
or decisions used in this case could be applied somewhere else without
being obviously inappropriate.
VII. THERE IS A DISREGARD FOR THE EFFECTIVENESS OF VOLUNTEERS.
Supporting statements:
* Volunteers could remedy the problem at the bog
* Volunteers have cleaned up the area for years
* With reduced budgets, good management makes it necessary to use volunteers
Discussion
Both the EA and the Decision Notice/FONSI clearly acknowledge the significant
contributions made by volunteers. It's clear that both the current District
Ranger and his predecessor have counted on volunteer efforts to support the
Forest Plan decision to continue motorized recreation in the Como Lake area.
The Colorado Association of 4 Wheel Drive Clubs Inc. submitted a project
plan which included a proposal for correcting problems with the bog and
motorized travel from Como Lake to Blue Lakes. The analyses and
recommendations from the staff specialists for both soils and water
indicate that the remedial measures suggested by CA4WDCI are inconsistent
or incompatible with site conditions and would not meet basic standards for
protection of soils and water.
VIII. THE LARGE SHOW OF SUPPORT FOR KEEPING THE ROAD OPEN WAS IGNORED.
Supporting statements:
* Ninety-nine percent of the written responses favored continued use of
the road all the way to Blue Lake
* Of the 650 letters received, only three favored closure
* There is loss of Forest Service credibility; why did we igndre public
input?
* This is not a "liveable compromise"
Discussion
It's clear that there was a large showing of support for keeping the road open.
However, scoping and all subsequent public involvement in any Forest
Service management decision is not intended to gauge public support or
the lack thereof. The intent rather is to learn as much as possible about a
management problem or opportunity. The District Ranger's responsibility
is to gather the biological, physical, and social information needed to make
an informed decision. Repetitive responses expressing similar opinions
about a preferred alternative are important, but do not necessarily contribute
to the basic information needed to make a decision. The Ranger must be
mindful of the basic laws and regulations that apply to his decisions for the
land, together with the applicable management standards and guidelines
in the Forest Plan.
XI. 'THE DECISION DISREGARDS THE MULTIPLE USE POLICY.
Supporting statements:
* The decision ignores recommendations in the Action Plan for the 1996
National OHV Activity Review
* The decision further reduces the already inadequate mileage of challenge
routes
* It shows disregard for the Chief's 1995 letter which cautions against
the snowball effect of closures
Discussion
The multiple use policy is not a blanket authorization or mandate to sanction
activities where the basic long term stability and productivity of the land would
be impaired. The multiple use policy directs District Rangers to consider
the widest range of options which meet the intent of the Forest Plan and are
within the biological, physical, social, and financial limits established by
laws, regulations and budgets. The range of alternatives in the EA meet
these criteria.
X. THE RESOURCE CONCERNS COULD BE REASONABLY MITIGATED.
Supporting statements:
* Fencing, road stabilization, culverts, and re-routing would work
* Work could be done cheaply by volunteers; look at the example of the
Holy Cross Road
* People disagree with statements about soils being subjected to damage
* The Ranger has overestimated the volume of traffic; this high challenge
route is self-limiting
Discussion
The EA and other documents in the appeal record indicate that these
techniques were considered, but were found to be inadequate to
protect the soil and water resources for the long term. Re-routing
options were determined to be impractical due to site limitations at
the bog near Como Lake.
When a Forest Service technical expert develops recommendations,
the data, analyses, and the recommendations themselves are subject
to challenge. However, it is not enough that respondents simply disagree
with a soil scientist's professional opinions and recommendations.
Such challenges must be more substantive than statements declaring
the recommendations to be incorrect. When respondents are challenging,
they must have specific data, technical information, expert opinion, and
similar support for their point of view.
The appeal record contains no data about traffic volume on the road,
nor is there any reference to the use of data available elsewhere.
However, the respondents have not provided data of their own to refute
the assumptions made by the District Ranger.
XI. SAFETY CONCERNS CAN BE EASILY ADDRESSED.
Supporting statements:
* Short sections of separate routing can be used for hikers
* There is no danger; vehicles are traveling slower than hikers
Discussion
Although hiker safety is mentioned in the Decision Notice, this was not one
of the five major issues addressed in the EA. Based on the very brief
reference to safety in the DN, it is not reasonable to assume that resolution
of the safety issue would have influenced the District Ranger sufficiently
to reach a different decision.
XII. THE DECISION DENIES MOTORIZED RECREATIONISTS ACCESS TO SCENIC VIEWS.
Supporting statements:
* These views are an important part of the driving experience
* Mt. Blanca is a "fourteener"
Discussion
Motorized recreationists will not be able to travel as far up the mountain
as before. However, the road did not access the mountain top, so to enjoy
the view from the top of this "fourteener" everyone had to walk to the summit.
Again, historic use patterns do not dictate current management decisions.
In fact, resource problems which develop from past activities are often high
priority for resolution. In the process, those who enjoyed the opportunities
associated with the resource problems may find their activities modified or
curtailed. There are other high country routes where the scenery is outstanding,
and the roads are properly located and maintained, thus assuring continued
opportunities to replace those which are foregone in this decision.
XIII. WATERSHED QUALITY HAS NOT SUFFERED.
Supporting statements:
* The creek could be routed into a culvert at the upper end of Como Lake
to assure continued protection
* Use signs and education for future protection
* No changes were observed while using the area for the past fifteen years
* The road is only used three months each year
* If is this non-problem as stated in the EA, why is the watershed concern
used as a reason for closure?
Discussion
The EA notes that "the watershed as a whole is healthy", but goes on to
note that the road is a disturbance within the watershed. In the DN the
District Ranger notes his concerns for unacceptable soil damage in several
areas, together with concern for water quality in the lake.
In noting that the road is used only one-fourth of the year the respondent
overlooks the fact that this is most of the period when damage can occur,
because this is the only portion of the year when wheeled vehicles can
access the area. This is also the only portion of the year when the area can
heal itself through vegetative growth and normal soil movement, the
processes most responsible for stabilization and restoration.
One respondent observed that conditions remained the same for fifteen years.
But without some documentation through photography, studies, technical reports
or other evidence this information cannot be used as the basis for a decision to
keep the road open.
XIV. 'THE CHOSEN MANAGEMENT STRATEGY WILL CREATE AN ENFORCEMENT PROBLEM.
Supporting statements:
* The road closure will be costly to maintain and patrol
Discussion
Every land management decision has a cost, even when the decision is
to continue with the pre-existing pattern of uses and activities. In this case,
there is no comparison of costs among alternatives. However, at some point
there would have been a need for mitigation of resource damage if Alternatives
I or II had been chosen, thus continuing historical uses. There is no way to
estimate those costs from information in the appeal record, but it is not
unreasonable to assume that some of those costs are saved under
Alternative III, and those savings can be used to offset some of the enforcement
costs. With the significantly tightened budgets in recent years, it is also not
unreasonable to assume that the District Ranger was well aware of some
budgetary impacts from his decision.
RECOMMENDATION
My review of these 89 appeals focused on the decision documentation
developed by the District Ranger in making his decision and on the concerns
raised in the appeals. While it is clear that the appellants are unhappy with
the Ranger's decision, I found no evidence in the record, nor did appellants
provide any, of violations of law, regulation or policy. Therefore, I recommend
that the Ranger's decision be affirmed in whole. Yet, with my recommendation,
I would encourage that the Ranger be directed to continue to work with this
important Forest user group in an effort to try to work out a mutually acceptable
accommodation.
DAVID A. ANDERSON
Appeal Reviewing Officer
DS:mg
Blanca Peak Trail Closure Status
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