United States

Department of

Agriculture

Forest

Service

Eastern Region 626 E. Wisconsin

Suite 800

Milwaukee, WI 53202

Caring for the Land and Serving People Printed on Recycled Paper

File Code: 1570-1 Date: March 30, 2009

Mr. Paul A. Turcke, Esq.

Attorney

Moore, Smith, Buxton & Turcke, Chartered

950 W. Bannock Street, Suite 520

Boise, ID 83702-6118

RE: Appeal of the Decision Notice and Finding of No Significant Impact for the Forest-Wide

Travel Management Project Environmental Assessment, Superior National Forest, Appeal

# 09-09-09-0028 A215

Dear Mr. Turcke:

On February 12, 2009, you filed a notice of appeal pursuant to 36 Code of Federal Regulations

(C.F.R.) 215.11, on behalf of the BlueRibbon Coalition and the All Terrain Vehicle Association

of Minnesota (collectively, the “Recreational Groups”). Forest Supervisor James W. Sanders,

signed the Decision Notice (DN) authorizing the above referenced project on December 16,

2008, and the legal notice was published in the Duluth News Tribune on December 29, 2008.

I have reviewed the Project Record (PR) and have also considered the recommendation of the Appeal

Reviewing Officer (ARO), Forest Supervisor Meg Mitchell, Green Mountain Finger Lakes National

Forest, regarding the disposition of your appeal. The ARO‟s review focused on the decision

documentation developed by the Responsible Official, Forest Supervisor James W. Sanders, and the

issues in your appeal. The ARO‟s recommendation is enclosed. This letter constitutes my decision on

your appeal and on the specific relief requested.

FOREST ACTION BEING APPEALED

The Forest-Wide Travel Management Project was designed to implement long-range goals and

objectives of the Superior National Forest Plan. It specifically addressed the Forest

transportation system (i.e., roads and trails). The decision accomplishes two primary purposes

including: 1) Designation or decommissioning of unclassified roads, and 2) Provision of loop

routes and connections for longer distance off-highway vehicle riding opportunities. The

decision implements the National Travel Management Rule (36 C.F.R. 212, 251, 261 and 295).

APPEAL REVIEWING OFFICER’S RECOMMENDATION

The ARO found no evidence that the Responsible Official’s decision for the Forest-Wide

Travel Management Project violated law, regulation, or policy. She found the decision

responded to comments raised during the analysis process and public comment period and also

adequately assessed the environmental effects of the selected action. In addition, she found the

issues raised in your appeal, (i.e., "The Forest Failed to Prepare an Environmental Impact

Mr. Paul Turcke, Esq. 2

Statement,” “The Decision Does Not provide For a Sufficient Range of Motorized Recreation

Opportunities,” “The Agency Has Not Provided a Rational Explanation in Rejecting

Alternative 3,” “The Agency Evaluated an Inadequate Range of Alternatives,” “The Decision

Lacks Necessary Analysis to Justify Site-Specific Actions,” “The Decision Adequately, if not

Excessively, Protects the BWCAW,” “The Decision Lacks Sufficient Analysis of Cumulative

and Socioeconomic Impacts,” “Decommissioning of Non-Designated Routes Cannot Tier

Solely to the Decision,” and, “We respectfully request that the Forest Service consider the

above listed roads and trails as part of the route network that will remain available for use.")

were addressed, where appropriate, in the decision documentation. Based on this review, the

ARO recommended that Forest Supervisor James W. Sanders’ DN/FONSI be affirmed.

DECISION

After careful review of the PR and your appeal, I concur with the ARO‟s analysis and findings

regarding your appeal issues. To avoid repetition, I adopt her rationale as my own, and refer you

to the enclosed recommendation letter, dated March 26, 2009, for further details. In response to

your request, the regulations (36 C.F.R. 215.16(b)) do not permit incorporating another appeal by

reference. I have addressed the Cook County ATV Club issues in my response to their appeal.

I find no violation in law, regulation or policy related to your specific appeal issues. However, I

am reversing Forest Supervisor James W. Sanders’ DN/FONSI of December 16, 2008, based on

the ARO’s recommendation for the Friends of the Boundary Waters Wilderness, et al. appeal.

My reversal is related to the very specific issue of air quality effects to the Boundary Waters

Canoe Area Wilderness. Pursuant to 36 C.F.R. 215.18(c), this decision constitutes the final

administrative determination of the Department of Agriculture.

Sincerely,

/s/ Logan Lee (for)

KENT P. CONNAUGHTON

Appeal Deciding Officer

Regional Forester

Enclosure

cc: Mailroom R9 Superior

Peter R Taylor

Duane A Lula

Joel Strong

Shannon L Swaziek

Patricia R Rowell

United States

Department of

Agriculture

Forest

Service

Green Mountain & Finger Lakes

National Forests

Supervisor’s Office

www.fs.fed.us/r9/gmfl

231 North Main St.

Rutland, Vermont 05701

Tel. (802) 747-6700

FAX (802) 747-6766

It’s Cool to Be Safe Printed on Recycled Paper

File Code: 1570-1 Date: March 26, 2009 Route To:

Subject: Appeal of the Decision Notice and Finding of No Significant Impact for the

Forest-Wide Travel Management Project Environmental Assessment, Superior

National Forest, Appeal # 09-09-09-0028 A215 (BRC/ATVAM ARO)

To: Regional Forester, Appeal Deciding Officer

This letter constitutes my recommendation for the subject appeal filed on behalf of the BlueRibbon

Coalition (BRC) and the All Terrain Vehicle Association of Minnesota (ATVAM) (collectively, the

“Recreational Groups”), on the Forest-Wide Travel Management Project, Superior National Forest

(SNF). Forest Supervisor Jim Sanders signed this Decision Notice on December 16, 2008. The

legal notice of the decision was published in the Duluth News-Tribune on December 29, 2008.

My review was conducted pursuant to 36 CFR § 215 – “Notice, Comment, and Appeal procedures

for National Forest System Project and Activities.” To ensure the analysis and decision are in

compliance with applicable laws, regulations, policies, and orders; I have reviewed and considered

each of the issues raised by the Appellants and the decision documentation submitted by the SNF.

My recommendation is based upon review of the Project Record (PR) including but not limited to,

the scoping letter, public comments, Decision Notice (DN), Finding of No Significant Impact

(FONSI), and the Environmental Assessment (EA).

Appeal Issues

The Appellants raised nine issues in their appeal of the Travel Management Project. Issues were

addressed in the order found in the appeal. No appeal issues were resolved through informal

resolution.

Issue I: “The Forest Failed to Prepare an Environmental Impact Statement”[EIS] (NOA, p.

3). “The DN/FONSI attempts, unconvincingly, to address these factors in concluding an EIS is

not required. DN/FONSI at 34-42. Without attempting a detailed refutation of that analysis, the

Recreational Groups simply note that the vast majority of Travel Management Rule processes

are being conducted through the more rigorous EIS process, particularly when a Forest-wide

project is involved.” (NOA, p. 5).

Response: Appellants do not specifically state why the SNF should have conducted an EIS, nor

do they point to any flaw in the analysis showing a significant environmental effect. Rather, they

generally assert an EIS should have been done because it is a Forest-wide project. However, 36

C.F.R. §220.7 states that an EA shall be prepared for proposals that are not categorically

excluded from documentation and when the need for an EIS has not been determined (36 C.F.R.

Regional Forester, Appeal Deciding Officer 2

§220.5). The Forest-Wide Travel Management Project EA does not fit a category to be

categorically excluded, nor does it fit in the classes of actions normally requiring an EIS (36

C.F.R. §220.5). Further direction in 36 C.F.R. §220.7 (3)(i) states the EA shall briefly provide

sufficient evidence and analysis, including the environmental impacts of the proposed action and

alternative(s) to determine whether to prepare an EIS or a FONSI. Forest-wide implementation

of a project does not imply that an EIS be prepared, nor does the amount of analysis documented.

An EIS is warranted when the actions being analyzed are shown to have a significant effect on

the environment and its resources. 36 C.F.R. §220.7 and 40 C.F.R. §1508.9 contain criteria to be

used to determine the context and intensity of the proposed action. Significance related to

impacts and preparation of an EIS is defined in 40 C.F.R. §1508.20.

The Council on Environmental Quality (CEQ) has promulgated regulations which further

subdivide intensity into ten items that agencies should consider when taking a “hard look” at

whether a project will have “significant” environmental impacts. These include: beneficial and

adverse impacts, the degree to which the proposed action affects public health and safety, the

degree to which the action may adversely affect an endangered or threatened species, the degree

to which the effects on the quality of the human environment are likely to be highly

controversial, the degree to which the possible effects on the human environment are highly

uncertain or involve unique or unknown risks, the degree to which the action may establish a

precedent for future actions, whether the action results in a cumulatively significant impact, the

degree to which the action may adversely affect scientific, cultural, or historical resources,

whether the action threatens a violation of Federal, State, or local law, and the unique

characteristics of the geographic area such as proximity to park lands or wild/scenic rivers (40

C.F.R. §1508.27). If an agency takes a “hard look” and determines that the proposed action has

no “significant” environmental impact, an EIS is unnecessary.

So an EIS is required when the project results in significant environmental impact, not simply

because it is a Forest-wide project. This decision clearly analyzed whether this project would

result in any significant environmental impacts. The Travel Management Project is a site-

specific action that by itself does not have statewide importance (DN, p. 34). Decisions made on

the SNF do not have any jurisdiction outside of National Forest Systems lands to which they are

applied. It is of local importance. The effects as a result of this decision are likewise negligible,

as documented throughout Chapter 3 of the EA and summarized in the DN (pp. 34-45).

Experience demonstrates the positive benefits of road decommissioning (Superior National

Forest Monitoring and Evaluation (M&E) reports (FY 2005, pp. 183-194 and 200-208; FY 2006,

pp. 94-104; FY 2007, pp. 87-93) (PR, Vol. 7B, 7C, and 7D, respectively). The application of

Forest Plan Standards and Guidelines, Minnesota Forest Resource Council Voluntary Site-Level

Forest Management Guidelines, design features, and other implementation measures will limit

the extent, severity and duration of any effects (EA, p. 3-2). The project will not impact any

Research Natural Area or Wild and Scenic River, will actually contribute to maintaining the

wilderness character of the Boundary Waters Canoe Area Wilderness (BWCAW) (i.e., fewer

roads within one mile of the Wilderness Boundary), will not significantly effect public health

and safety, is not controversial, does not present unique or unknown risks, does not set a

precedent for future actions, does not result in cumulative effects, does not adversely affect

endangered species, will not impact listed or eligible historic places, and does not violate any

federal, state or local law (DN, pp. 34-45).

Regional Forester, Appeal Deciding Officer 3

Not only is this project consistent with the 2004 Superior Forest Plan, but the decision only

affects 6% of the SNF total roads network (DN, pp. 34, 42). The Responsible Official‟s in-depth

analysis on the context and intensity allowed him to reach this following conclusion:

After thorough consideration, I have determined that actions selected do not

constitute a major federal action, individually or cumulatively, and these actions

will not significantly affect the quality of the human environment. The site-

specific actions of Alternative 2 with modifications, in both the short and long-

term, are not significant. (DN, p. 44).

I find the Responsible Official adequately identified and addressed any and all impacts that

might result from this action and properly evaluated the project for its context and intensity. He

took a “hard look” and determined that the proposed action has no “significant” environmental

impact. Therefore, I find the Appellants‟ claim is not substantiated and the preparation of an EIS

is not needed.

Issue II: “The Decision Does Not Provide For a Sufficient Range of Motorized Recreation

Opportunities.” “The Decision fails to reflect the basic fact that “[m]otorized recreation is a

legitimate use” of the National Forests… The Forest Service is required by law to make

decisions based on a multiple-use mandate, as outlined in statutes like the Multiple-Use

Sustained Yield Act of 1960 (“MUSYA”) and the National Forest Management Act (“NFMA”).”

(NOA p. 5).

“The large-scale failure to consider and/or designate routes in the Decision further

significantly eliminates riding opportunities and thus restricts the use and enjoyment of

the forest by off-highway vehicle users…There exist many “unclassified” roads that

provide access to lakes for fishing, minnow trapping, fur trapping, berry picking, youth

and family practice rides, and similar activities that may severely limit historic use of

forest resources.” (NOA, p. 6).

Response: As Appellants correctly point out, the Forest Service does have considerable

discretion under the Multiple Use Sustained Yield Act (MUSYA) to weigh and decide the

appropriate uses of particular areas of the National Forests and to “Be best suited to the multiple-

use goals stated in the Forest Plan.” MUSYA, 16 U.S.C. § 529, states:

The Secretary of Agriculture is authorized and directed to develop and administer the

renewable surface resources of the national forests for multiple use and sustained yield of

the several products and services obtained there from. In the administration of the

national forests due consideration shall be given to the relative values of the various

resources in particular areas. The establishment and maintenance of areas of wilderness

are consistent with the purposes and provisions of this Act.

Furthermore, “[I]t is the policy of Congress that the national forests are established and shall be

administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.”

MUSYA, 16 U.S.C. § 528. While the MUSYA provides for multiple use resource management

Regional Forester, Appeal Deciding Officer 4

on National Forest land, it does not require each acre be managed for every multiple use (16

U.S.C. § 531 (1988)). MUSYA provides considerable discretion to the Forest to balance

competing uses. One resource is no more important or no less than any other use. The criterion

of the MUSYA is that the Forest Service must give due consideration to the relative values of the

various multiple use resources (see Sierra Club v. Hardin, 325 F. Supp. 99, 123 (D. Alaska

1971)). Clearly, this statutory language gives the Forest considerable discretion with to the type,

amount, and degree of analysis required to support its actions.

Appellants argue that the Forest Service did not consider motorized recreation as being a

legitimate use of the National Forest in violation of MUSYA. However, their assertion is not

accurate. Motorized recreation is considered a legitimate use on the SNF and this decision

clearly recognizes it as such. Part of the very purpose of this project is to design an OHV system

that provides more loops and longer routes and designate unclassified roads that are suitable for

motorized use (DN, p. 3, 7; EA, p. 1-7 and 1-8). My review of the PR indicates that motorized

recreation was considered throughout the analysis and the decision. Approximately 271 miles of

roads and trails that had not been previously available for OHVs (off-highway vehicles), OHMs

(off-highway motorcycles), or ATVs (all terrain vehicles) will now be open for such use (DN,

pp. 9, 18). Also, of the approximate 300 miles of unclassified roads, almost one-third of them

will remain open to ATVs, OHMs, and OHVs (DN, p. 9). “When compared to the current

condition, this decision provides over 300 more miles of loop riding opportunities, and almost

doubles (470 more miles) the amount of routes that are 10 miles or more in length.” (DN, p. 22).

While nearly all unclassified roads are currently open to OHV use, it is important to note that

unclassified roads are not managed as part of the National Forest System roads (DN, p. 17; EA,

p. 3-18). The Forest Plan “recognized the need to evaluate unclassified roads on the Forest and

either convert them to a national forest system road or trail or to decommission the road so it was

no longer available for any motorized travel (Forest Plan, page 2-49, O-TS-6).” (DN, p. 4).

Unclassified roads are “unplanned roads, abandoned travelways, and off-road vehicle tracks that

have not been designated and managed as a trail, and those roads that were once under permit or

other authorization and were not decommissioned upon the termination of the authorization.”

(EA, p. 3-18). They “have evolved over the decades, and are mainly old Forest Service

temporary roads that were never properly decommissioned or „legacy‟ roads built in the past for

timber access and abandoned by the original owner.” (EA, Ch. 4, p. 2). Therefore, any previous

reliance on those roads as legitimate was not proper in the first place. Nevertheless, the SNF has

recognized that some of these roads are appropriate and useful and have designated almost one-

third of them for continued use (DN, p. 9, 20).

This issue has been presented before, and the SNF developed Alternative 3 in part for identifying

more opportunities for motorized travel by designating more of the unclassified roads for

motorized use than Alternative 2 (DN, p. 22; DN, Appendix C, p. 186). In total, the EA

considered 4 alternatives that were developed in detail and 19 other alternatives that were

considered, but not analyzed in detail (DN, p. 28; EA, p.2-3 thru 2-7 and p. 2-16 thru 2-22).

Many of these alternatives further expanded the amount of motorized opportunities. However, in

choosing Alternative 2, the Responsible Official recognized the tradeoffs between allowing for

public use and enjoyment of the national forests versus protecting the natural resources (DN, p.

6). An example of the tradeoffs recognized in the decision include providing expanded OHV

Regional Forester, Appeal Deciding Officer 5

opportunities (longer loop routes) while also providing quiet settings for visitors (DN, p. 6). He

further noted the potential impacts to motorized users in the decision and analysis (DN, p. 6-7

and p. 17-18).

This project actually increases the amount of OHV loop riding opportunities, as well as riding on

longer connected routes, and after this decision is implemented, approximately 1,600 miles of

roads and trails will be available for riding ATVs and OHMs (DN, p. 12, 17). Further, this

project is consistent with the 2004 Forest Plan‟s desired conditions by creating a seamless system

of travel routes and providing road and trail riding opportunities in a variety of forest

environments (DN, p. 5). Therefore, I find that the Responsible Official recognized motorized

recreation as being a legitimate use of the National Forest and find there was no violation of the

MUSYA.

“The Recreational Groups have grave concerns about the accuracy of the maps used in

the process…Throughout the process, inconsistencies on maps have been troubling.

Such inaccuracies preclude meaningful public participation in the planning process and

cause us to fear that any MVUM will reflect similar deficiencies creating navigation,

implementation and enforcement difficulties contrary to the interests of the agency and

all user groups.” (NOA, p. 7).

Response: In reviewing this project, I find that this issue has been recognized and contingencies

have been developed to deal with map inconsistencies and errors (DN, p. 12). The motor vehicle

use map (MVUM), once published, will be updated on a yearly basis to allow for corrections

after the decision is made (DN, p. 12). In addition, rather than precluding meaningful public

participation, potential map inconsistencies were pointed out during the comment period and

corrected (DN, App. C, p. 246). The roads analysis conducted for this project also identified the

intensive and extensive efforts that have been made and that are ongoing to inventory and correct

locations of both classified and unclassified roads (PR, Vol. 6J, Doc. 012, p. 3-5). In summary,

starting in approximately 1998, the Forest engineering unit began to verify roads data by

physically driving all Operation Maintenance Level (OML) 2, 3, 4, and 5 roads. In 2002, the

SNF began using Garmin or Trimble Global Position System (GPS) units to record the location

of roads that were not yet documented in the database. Since 2006, the Forest has concentrated

their efforts on correcting errors in the database used to store and display road and route

information.

Furthermore, I find that the SNF completed a Roads Analysis for this project “which took a close

look at each unclassified road to determine whether it was needed for a road, trail or was to be

decommissioned. Each unclassified road was inventoried using Global Positioning system

(GPS) technology and then the needs for that road was reviewed by an ID team (see Roads

Analysis in project file) before a final determination was made.” (DN, pp. 4-5). Additionally,

the SNF did a thorough job of field inventory to locate, assess, and catalog each of these roads

(DN, p. 20). Maintaining a road inventory is an ongoing task. New illegal roads will continue to

be created, often without the Forest Service knowledge. The Responsible Official admits that the

inventory, while not 100 percent accurate, is sufficient to provide the necessary information for

analysis of this project and making an informed decision (DN, p. 15; EA, p. 3-2).

Regional Forester, Appeal Deciding Officer 6

Therefore, I find that the SNF used the best available information. This data was based upon

standard agency protocols and years of local knowledge from on-the-ground experienced

engineers. The Appellants offer no supporting evidence that the analysis prepared with the

Forest‟s transportation data is inaccurate. I find no violation of law, regulation, or policy.

“As a general observation, it seems the Forest is unjustifiably erring on the side of

preservationist caution, which could actually harm the physical environment through the

failure to designate a sufficiently extensive or diverse route network… We urge the

Forest to create a travel management glass that is half full, rather than creating a recipe

for future frustration between user groups and unnecessary friction and environmental

damage that will flow from an unduly restrictive motorized travel network.” (NOA, p.

7).

Response: Please refer to previous response regarding requests for SNF to make a decision

favoring motorized recreation. While the issue of illegal ATV use and the potential damage that

could occur from such use is not specifically recognized as an issue in the EA, one of the key

threats to National Forests identified by the Chief of the Forest Service in 2003 was the

undesired impact from unmanaged off-road vehicle use (EA, p. 1-2). This was part of the

purpose for developing a regulated system for motorized users. Nevertheless, the Responsible

Official addressed illegal use in his decision. The SNF acknowledges that increased cooperation

for travel management rules and regulations is important for successful project implementation.

The SNF expects to work jointly with other governments resulting in a reduction in unlawful

activities and additional law enforcement officers have been added to address individuals that

clearly intend to act illegally (DN, pp. 27-28).

In addition, the decision includes monitoring of road and trail closures and decommissioning to

determine whether the methods used are effective at stopping use and reducing impacts (DN, p.

16). Monitoring and Evaluation reports show that past road closures have been effective and

outline the methods and protocols for future monitoring (DN, App. B; DN, p. 20-21). This is

based on the SNF monitoring OHV use, effects, and road closure/decommissioning since 2001.

(DN, App. B, p. 2). In fact, “…the majority of road decommissioning projects [have]

incorporated practices outlined in FEIS Appendix F-1 and Guideline G-TS-16 and have

subsequently been effectively closed and blend into the surrounding landscape.” (DN, App. B,

pp. 3, 6). Examples (including before and after photographs) are fully documented in the DN

and the Forest Monitoring Reports for the years 2005 through 2007 (DN, App. B; PR, Vols. 7B,

7C, and 7D).

The Responsible Official also considered law enforcement as an important component of each

alternative (EA, p. 2-21). Law enforcement personnel patrol roads and check closed roads to

ensure that closures are enforced. Two additional law enforcement officers were recently added

to the staff. Many of the Forest personnel are Forest Protection Officers and have training and

authority for lower-level patrol and enforcement situations, including issuing citations (Ibid, p. 3-

39). I have also reviewed the 2008 Law Enforcement Agenda and Action Plan for the SNF (DN,

App. E). This plan recognizes that there could be illegal motorized use as a result of restrictions

Regional Forester, Appeal Deciding Officer 7

on off-road vehicle travel and identifies an action plan to monitor and conduct enforcement

activity for unauthorized uses (DN, App. E, p. 5). Therefore, I find the Responsible Official has

utilized effective roads/trails closure and decommissioning techniques and has a plan in place to

address further illegal activity. I find no violation of law, regulation, or policy and find the

Appellants‟ claim is without merit.

Issue III: “The Agency Has Not Provided a Rational Explanation in Rejecting Alternative 3.”

(NOA, p. 7). First, the DN/FONSI cites a hypertechnical “conflict” between Alternative 3 and

the Forest Plan, stating, “[t]his alternative converts 92 miles of unclassified roads to ATV trails,

and co-designates 58 miles of snowmobile trail as ATV trail. This far exceeds the Forest Plan

objectives of designation of a maximum of 90 additional ATV trail miles (Objective RMV-1 p. 2-

430…” DN/FONSI at 29. As noted, the Forest Plan not only could, but logically should, be

amended when more detailed site-specific analysis such as conducted in the Travel Management

Project suggests different outcomes than the broad-brush programmatic effort associated with

the Forest Plan…” (NOA, p. 8).

Response: While there are a large number of commentors who requested the additional miles

associated with Alternative 3, there is no analysis to suggest that Alternative 2 does not

adequately meet the needs of ATV use on the forest. The ID Team‟s initial site-specific analysis

of the project area (Alternative 2, Proposed Action) determined a road network that met the

purpose and needs for the project that did not exceed the 90 additional miles allowable by the

Forest Plan. Therefore, there is no reason for an amendment to the Forest Plan as a result of this

project.

The reasons for amending the Forest Plan are when “management actions are found to be

inconsistent with Plan direction or site-specific analysis shows an error in the Plan.” (Forest

Plan, p. 1-11). Neither of these conditions have been meet here. Furthermore, research analyzed

during the Forest Plan revision process determined a demand per acre of ATV trail miles for the

forest. The study estimated a demand of 296 miles for the SNF vicinity, of which it was

determined that the Superior would have a maximum share of 90 additional miles from their

existing trail system (FEIS, p. 3.8-44). The SNF used this information to support the

development of Objective RMV-1. Additionally, the Forest Plan underwent an intense public

review process in which allowed the public to opine about this objective. Appellants have not

presented sound justification for amending the Forest Plan, other than their dissatisfaction with

the selected alternative.

The Responsible Official was fully within his authority to select an alternative that was

consistent with the Forest Plan rather than amending the Forest Plan. I find no violation of law,

regulation, or policy.

“… the Forest Service‟s own mixed-use analysis has ascertained that all system roads are

considered very low volume roads (average daily traffic (ADT) of less than 400 vehicles per

day, DN/FONSI at 27) in concluding it is impractical to restrict ATVs from any public forest

roads. Some mixed use routes are often essential to allow for appropriate loop tiding

Regional Forester, Appeal Deciding Officer 8

opportunities and to prevent unnecessary threat of impact to resources on alternate routes.

Forests throughout the country address mixed use circumstances far more complex than

those faced on the Superior by allowing continued mixed use on similar routes. Again, this

rationale does not withstand scrutiny.” (NOA, p. 8).

Response: Contrary to Appellants‟ assertion, the Responsible Official has provided a solid

justification for his selection of Alternative 2. Again, the purpose of this project is to create

more loop, connections, and longer riding opportunities while at the same time, protecting

resources, addressing issues, and maintaining minimum road system needed to provide adequate

access. He explained that Alternative 2 meets the purpose and need of the project, complies with

Forest Plan direction, and best addressed public comment (DN, p. 20, 31). He also appropriately

considered safety into his decision (DN, p. 21). He further explained that while Alternative 3

created more OHV riding opportunities, it “had environmental effects, did not address all the

issues as well, and resulted in a national forest road and trail system that exceeded the minimum

needed. One impact that I gave particular attention to was that of safety of mixed use on the

higher level roads. Alternative 2 did not include roads with the higher use or traffic speeds that

Alternative 3 included.” (DN, p. 21).

Appellants try to dispute the Responsible Officials concerns for safety by stating that since our

mixed-use analysis shows an average daily traffic (ADT) of less than 400 vehicles per day, that

we have no justification to restrict ATVs from any public forest roads. However, the National

Travel Management Rule (TMR) require forests to determine road designations considering

“effects on National Forest System natural and cultural resources, public safety, provision of

recreational opportunities, access needs, conflicts among uses of National Forest System lands,

the need for maintenance and administration of roads, trails, and areas…, and the availability of

resources for that maintenance in administration.” (36 C.F.R. §212.55 (a)). Additionally, the

Responsible Official shall consider “[c]ompatibility of vehicle class with road geometry and road

surfacing.” (36 C.F.R. §212.55 (c)(2)).

The Forest-wide analysis of motorized mixed use determined that “[a]ll NFS roads on the

Superior National Forest would be considered very low by this guide [the Guidelines for

Geometric Design of Very Low-Volume Local Roads] as they all have an ADT of less than 400

with most being well under 100 ADT.” (PR, Vol. 6J, Doc. 005). While the low volume on the

NFS roads did not necessarily raise safety concerns, the design of some of the high level (OML

3, 4, and 5) roads did. Specifically, “… in-slopes that are adequate for cars to recover if they

veer off the edge of the shoulder may be too steep for an ATV to recover without the possibility

of a rollover. Crushed aggregate surfacing provides a smooth surface but also allows more

comfort at faster speeds than is often prudent.” (PR, Vol. 6J, Doc. 005, p. 1). As previously

mentioned, safety was a primary concern to the Responsible Official in rejecting Alternative 3.

The Responsible Official states “[m]any other roads were suggested for mixed use by the public,

and in several instances I have not approved such use because of potential safety problems.”

(DN, p. 36). Another reason, he rejected Alternative 3 was that it would allow almost double the

miles of Alternative 2 on these high level (OML-4) roads where these road design safety

concerns have been identified (DN, p. 30).

Regional Forester, Appeal Deciding Officer 9

Based on the aforementioned, I find the Responsible Official‟s has provided sufficient rationale

for selecting Alternative 2. His reasons are just and appropriately supported by the PR. I find no

violation of law, regulation, or policy.

Issue IV: “The Agency Evaluated an Inadequate Range of Alternatives.” (NOA, p. 8). “The

agency has improperly ignored viable, if not persuasive, alternatives and proposals in violation

of NEPA. The management of and access to these lands are important to the Recreational

Groups and many diverse Forest visitors, and we respectfully ask you to review the questionable

management decisions made in the EA. We specifically request that you expand the range of

alternatives…..” (NOA, pp. 8-9).

Response: NEPA requires federal agencies to study, develop, and describe appropriate

alternatives to recommended courses of action in any proposal that involves unresolved conflicts

of alternative uses of available resources (42 U.S.C. 4332). “No specific number of alternatives

is required or prescribed” for an EA (36 CFR § 220.7 (b)(2)). There is no set number of

alternatives required in order to reflect a reasonable range. Agencies have discretion to

determine appropriate alternatives based upon the purpose of the proposal.

Courts have found that the range of alternatives may be limited to those alternatives that meet the

purpose of the proposed action. See Allegheny Defense Project v. Forest Service, No 01-895

(W. D. Pa 2003) (Forest limited the scope of a T&E Amendment to requirements of a Biological

Opinion. Court upheld the narrow purpose and need. Forest did not need to consider in detail

alternatives that did not accomplish the purpose and need for the action.); Krichbaum v. Kelley,

844 F. Supp. 1107, 1109 (W.D. Va. 1994), aff‟d 61 F.3d 900 (4th Cir. 1995) (Forest need not

consider a “no logging” alternative that does not meet forest plan goals); Sierra Club v.

Robertson, 810 F. Supp. 1021, 1029 (W.D. Ark. 1992), aff‟d 28 F.3d 753 (8th Cir. 1994) (NEPA

does not require an agency to consider alternatives that do not meet the purpose of the proposed

action).

The Appellants do not suggest a specific alternative that was not considered; rather they

generally assert their displeasure with the selection of Alternative 2. However, this project

evaluated four alternatives in detail, including a “No Action Alternative” and three action

alternatives, which are described at length in the EA (pp. 2-3 through 2-7) and DN (pp. 28-31).

The EA also describes ten “alternatives considered but eliminated that describe more motorized

access” (EA pp. 2-16 through 2-19), nine “alternatives considered but eliminated that describe

less motorized use” (EA pp. 2-19 through 2-21), and thirty-two alternatives suggested by

commenter that are “addressed in one or more of the alternatives considered in detail, or can be

mitigated during implementation” (EA pp. 2-21 and 2-22). Also, see Response to Issue II.

Again, the specific Purpose and Need for action of this project is to designate or decommission

unclassified roads and providing loop routes and connections for longer distance riding

opportunities on existing roads and trails that provide for enjoyable and consistently managed

OHV riding experiences (DN, p. 3). The three action alternatives evaluated in detail describe a

range of actions that accomplish the stated Purpose and Need for this project. After reviewing

Regional Forester, Appeal Deciding Officer 10

the PR and all associated documents, I find that an adequate range of alternatives was considered

and evaluated. I find no violation of NEPA, as Appellants assert.

Issue V: “The Decision Lacks Necessary Analysis to Justify Site-Specific Actions.” (NOA, p.

9). “In drafting the EA and adopting the Decision, the Forest Service arbitrarily and

capriciously relies on incomplete, invalid, or nonexistent analysis. The EA lacks the foundation

necessary make critical, sound management decisions.” (NOA, p. 9).

“In many instances, designation decisions are attributed to soils, water, wildlife, or

similar resource impacts which are not adequately disclosed, discussed or documented to

the above-cited standards.” (NOA, p. 9).

“Additionally, economic and social science conclusions are not adequately documented

in the EA…The subject matter does not excuse conclusory or nonexistent analysis of

these issues.” (NOA, p. 9).

Response: The Appellants allege the Responsible Official made his decision without site

specific information. To the contrary, this EA, its accompanying appendices, and the DN reflect

an extensive analysis that discloses the likely environmental effects. The IDT established a

purpose and need, scoped for comments among various user groups and government bodies,

identified issues, developed various alternatives, and disclosed the effects. Specifically, they

addressed: impacts to the non-motorized recreation experience on National Forest lands, impacts

to wilderness character in the BWCAW, impacts to the soil and water resource, impacts from the

spread of NNIS, impacts to the OHV recreation experience and adjacent landowners, and

impacts to forest access for hunting and fulfillment of 1854 Treaty rights (EA, p. 1-13). The

analysis employed various indicators to compare the difference between alternatives as they

related to the identified issues (e.g., EA, p. 3-9).

The PR contains extensive files showing site visits were made to roads being considered in this

decision (e.g., PR, Vol. 6J, Doc. 005; PR, Vol. 6J, Doc. 004). The DN, itself (p. 20) states that

Forest staff “did a thorough job of field inventory to locate, assess and catalog each of these

roads.” It is also apparent that field visits were made to address specific comments on road

segments. The Responsible Official stated:

A field visit on August 21, 2008 confirmed what is stated in the comment letter.

The road does not exist across the drainage and has not for many years as a 30-40

year old aspen tree is growing in the center of what used to be the centerline of

the road. (EA, App. C, p. 82)

The SNF conducted a site-specific analysis on the roads in this project over several years through

extensive field and photo inventory and database updates (PR, Vol. 6J, Doc. 004; PR, Vol. 6J,

Doc. 012, App. B; DN, App. C, pp. 5, 68-75). For example, a number of unclassified roads are

recommended for decommissioning due to existing or the potential for resource damage, poor

soils, or due to their short length (e.g. U1110902, U1110903, U230403, U2CC1604, U2138203,

U2138202, U111308 and U111309) (PR, Vol. 6J, Doc. 004). The Roads Analysis report for the

Regional Forester, Appeal Deciding Officer 11

project shows how unclassified roads in the project area would or would not contribute to

impacts to a variety of resources, including social and economic factors (PR, Vol. 6J, Doc. 012,

DN, App. B, pp. 15-16).

Additionally, the EA contains an analysis on hydrology, soils, threatened and endangered

species, and economics (EA, pp. 3-35 through 3-46, 3-67 through 3-70). For example, the

Watershed analysis used the following indicators to determine what effects would result from

this decision: number of stream crossings, miles of ATV use within bank riparian area, miles of

trail with new wheeled ATV traffic, miles of unclassified road decommissioned, and miles in

soils susceptible to erosion and compaction (EA, p. 3-35 through 3-36). All action alternatives

also reduce the level of disturbance and effects on water quality by reducing the number of miles

of trail within riparian areas, reducing the number of stream crossings, and reducing the total

number of miles subject to ATV disturbance. Alternative 4 presents fewer disturbances than

Alternative 2, but all of the action alternatives improve water quality compared to the “No

Action Alternative” (Alternative 1) (EA, p. 3-40). The EA further notes that site-specific

ecological landtypes (ELTs) information is used to measure the effects of the proposed

management activities on soil and wetlands. (EA, p. 3-36). The Soil Scientist explained her

methodology in her report and concluded that:

…considerable soil resources will benefit because less ELTs will potentially be

compacted and less maintenance of sites will be needed. Reducing roads and trails

that occur in sites that are susceptible to rutting and compaction will also reduce

potential sedimentation in lakes and streams where these trails may have been

near or adjacent to shorelines (PR, Vol. 6D, Doc. 025).

The SNF also completed a biological assessment (BA) and biological evaluation (BE), which provides detailed information regarding site-specific effects of OHV access on threatened and

endangered species (TES) and Regional Forester-listed sensitive species and their proposed critical

habitat (PR, Vol. 6E, Doc. 004 and 005). The Wildlife Biologist explained the methodology used in

reaching his conclusions in those documents. Furthermore, all of the actions included in the selected

alternative would reduce the number of miles of forest roads open for travel, and therefore reduce

disturbance to wildlife. This includes reducing effects to wildlife in the BWCAW since indirect

effects to wildlife from roads outside the wilderness would be reduced. The selected alternative has

potential to improve habitat for threatened and endangered wildlife species by reducing the overall

road density on the Forest (EA, p. 3-46).

Regarding economics, the deciding officer has the discretion to determine the appropriate level

of analysis depending on the nature of the project (Forest Service Manual, Chapter 1970.6; DN,

App. C, p. 208). The Responsible Official did not identify the distribution of benefits and costs

among affected people as an issue to be addressed in the environmental analysis and it is not required

by the TMR (PR, Vol. 6J, Doc. 012, App. B, pp. 5-6). However, a cost-benefit analysis was

completed on a national scale for the TMR which indicated that there might be only minor

impacts to local users and economies (PR, Vol. 6J, Doc. 012, App. B, pp. 6 and 16). The miles

of roads and trails open to all OHV use varies under the action alternatives from 145 miles less

than currently exists to 54 miles more than currently exists (EA, p. 2-9). “This difference from

the existing condition is not expected to result in a measurable effect on the local economies

when considered across the entire Forest.” (PR, Vol. 6J, Doc. 012; DN, App. B, p. 6). The analysis

Regional Forester, Appeal Deciding Officer 12

also tiers back to the Forest Plan EIS. For example, the Forest Plan EIS discusses the distribution

of benefits and costs among affected people in sections 3.9 and especially section 3.9.2. This is

consistent with CEQ‟s regulations which direct agencies to reduce paperwork by “Using

program, policy, or plan environmental impact statements and tiering from statements of broad

scope to those of narrower scope, to eliminate repetitive discussions of the same issues.” 40

C.F.R. § 1500.4(i). Therefore, since effects to economic stability will be minor and are

anticipated to be consistent with what was already disclosed in section 3.9 of the Forest Plan EIS,

I find an appropriate economic analysis has been completed.

I find the SNF adequately considered effects as it relates to water quality, wildlife, and TES and

has analysis to support its conclusions and used previous analysis when applicable to this project.

I find no violation of law, regulation, or policy.

Issue VI: “The Decision Adequately, if not Excessively, Protects the BWCAW.” (NOA, p. 10).

“… the Forest committed error by creating illegal “buffer zones” around the BWCAW in

apparent capitulation to the strident opinions of preservationist interests.” (NOA, p. 10).

Response: While, the SNF recognizes the importance of preserving the wilderness character of

the BWCAW, it did not attempt to create an additional Wilderness area in this decision. The

SNF used a 1 mile radius from all wilderness travel routes and campsites as an “effects

boundary” for their analysis. This would help them determine what effects designated OHV

travel routes outside the wilderness would have on wilderness character, with particular regard to

noise effects (EA, p. 3-26, 3-28, 3-29). While Alternative 2 was found to have less effect on the

wilderness, OHV routes do still come within 1 mile of twenty-one designated areas of the

BWCAW, and within 1 mile of twelve campsites within the wilderness boundary. Additionally,

there are several roads that have portions of road that run adjacent or nearly adjacent to the

wilderness boundary (i.e., Forest Road 315 and 152), totaling 10.7 miles that are designated for

OHV or ATV and OHM use through Alternative 2 (DN, p. 24). There are also several roads

designated through other decisions that run adjacent (i.e., Forest Road 1335) or nearly adjacent

(i.e., Forest Road 199C) to the wilderness boundary.

The 1 mile radius used for analysis was not intended to create “illegal „buffer zones‟ around the

BWCAW” (NOA, p. 10), but to determine the effects of the alternatives on the wilderness

character. As stated above, several miles of roads were designated within proximity of 1 mile of

the wilderness boundary in several locations around the wilderness. I find that the Responsible

Official did not create an “illegal buffer zone.”

Issue VII: “The Decision Lacks Sufficient Analysis of Cumulative and Socioeconomic

Impacts.” (NOA, p. 10). “The final plan does not provide links to any businesses or services.

The Forest Service states that it collaborated with numerous entities—the Minnesota Department

of Natural Resources, Cook County, Lake County, and the Grand Portage Band of Lake

Superior...Better coordination with other land owners/governmental bodies needs to be

undertaken to provide these connections to services. Finally, the cumulative effect of these

Regional Forester, Appeal Deciding Officer 13

restrictions in light of above-described restrictions such as imposed by Minnesota DNR is not

adequately considered in the EA or Decision.” (NOA, p. 11).

Response: An economic analysis, including cumulative effects, was completed for this project

(EA, pp. 3-67 through 3-70). Please refer to Response to Issue V for a discussion of economic

impacts.

The Responsible Official states that effects of implementing the selected alternative, along with

the effects of past, ongoing, and reasonably foreseeable future activities, are not expected to be

cumulatively significant (DN, p. 40). Every resource section in the EA discloses the cumulative

effects of the project for past, present, and future projects and establishes appropriate spatial and

temporal boundaries (EA, pp. 3-15 through 3-17, 3-22 through 3-24, 3-32 through 3-34, 3-39

through 3-40, 3-45 through 3-46, 3-53 through 3-54, 3-60, 3-65, 3-69 through 3-70). As an

example, the cumulative impacts discussion related to Forest Access describes the spatial

framework (entire National Forest, including lands of other ownership), the time frames (15 year

period), and past, present, and future impacts (EA, p. 3-22 to 3-23). I find that the decision

adequately considered cumulative effects.

Appellants also argue that this project should have provided more links to businesses and

services. However, as previously mentioned, the purpose and need of this project is to designate

or decommission unclassified roads and provide loop routes and connections for longer distance

riding opportunities on existing roads and trails (DN, p. 3). Therefore, this project did not

consider creating existing access to businesses that are not already served by existing roads (DN,

App. C, p. 9). “In addition, safety concerns for allowing OHVs and motor vehicles on the same

roads (that often serve businesses) revealed in the mixed use analysis contributed to the

formation of the alternatives and which routes are designated by the deciding officer.” (PR, Vo.

5H, Doc. 006, p. 62; PR, Vol. 6J, Doc. 005). The Responsible Official recognized that there may

be opportunities to provide better trail access to some businesses and noted that if there is a

particular opportunity a club or business would like to explore in more detail, it could be

addressed in a future proposed action and analysis (DN, App. C, p. 95).

Additionally, two Scoping letters were sent out to interested parties and a series of six open-

house meetings were held in March of 2008 to preview a set of potential alternatives that would

be considered in the environmental assessment (DN, p. 32). Then in June 2008, the 30-day

comment period was held. (DN, p. 32). The public was certainly allowed to express their

concerns over “links to business.” In fact, there were two alternatives (i.e., “Create more loops,

especially loops with services” and “Provide more access to business destinations (lodges,

restaurants, resorts)), suggested by commentors, that are addressed in one or more of the

alternatives considered in detail or that could be mitigated during implementation (EA pp. 2-21

and 2-22).

The Responsible Official noted that meetings were held with the Minnesota Department of

Natural Resources (MN DNR), counties, and Tribal representatives to present information about

existing roads and trails to the public and to explain the collaborative planning process in 2006

and 2007 (DN, p. 32). The SNF continued the meetings with MN DNR into 2007 about cross-

jurisdictional routes (DN, p. 32). The SNF has worked with the MN DNR in OHV Planning to

Regional Forester, Appeal Deciding Officer 14

identify loops and connected ride opportunities (EA, p. 3-16). The Appellants have not

identified what other entities it should have worked with on this project.

The Roads Analysis Report (RAP) acknowledged that many unclassified roads provide “primary

access to isolated private landholdings, which have developed small ad-hoc communities,

especially on lakeshores” and provide “access to lands of other public ownership.” (PR, Vol. 6J,

Doc. 012, App. B, pp. 9-10). However, unclassified roads must either be converted to a system

road or be decommissioned (DN, p. 4). For further discussion on unclassified roads, please see

Response to Issue II. Based on the aforementioned, I find the Appellants‟ claim is not

substantiated, as providing better links with businesses was not part of the purpose and need of

the project.

Issue VIII: “Decommissioning of Non-Designated Routes Cannot Tier Solely to the

Decision.” (NOA, p. 10). “The act of decommissioning is a site-specific action which itself

requires commensurate site-specific analysis. In other words, a route cannot be slated for

decommissioning, at least not using methods involving ground disturbance, until a suitable

project-level NEPA analysis has specifically analyzed that project and its associated effects on

the human environment in the context of that route.” (NOA, p. 11).

Response: Please refer to Response to Issue V for discussion on site-specific analysis. As

previously stated, I find that the SNF conducted a site-specific analysis on the roads in this

project over several years through extensive field and photo inventory and database updates (PR,

Vol. 6J, Doc. 004; PR, Vol. 6J, Doc. 012, App. B; DN, App. C, pp. 5, 68-75; DN, pp. 4-5, 14).

“An interdisciplinary team of resource specialists… reviewed each unclassified road to

determine needs for access and use, and to estimate the effects of that use.” (DN, p. 6). This

effects discussion explains the “expected effects on the physical, biological, social, and

economic environments associated with implementation of each of the alternatives” and the

“direct, indirect, and cumulative effects on each resource” (i.e., recreation, access, wilderness

character, soil and water, threatened, endangered and sensitive species, non-native invasive

species, special uses, heritage resources, and economics) (EA, p. 3-1). The SNF completed a

site-specific analysis and has rationale on each specific unclassified road proposed to be

changed.

Furthermore, the SNF ensured that the 154 miles of unclassified roads that will be

decommissioned was consistent with Forest Plan direction at S-TWS-4, G-TS-15, and G-TS-16

(DN, p. 13). The SNF also noted that it will use several techniques for decommissioning roads,

“ranging from blocking usage and allowing natural revegetation, to completely removing the

roadbed and re-landscaping.” (DN, p. 13). Each road‟s condition will determine the technique

used. Previous monitoring and evaluation “have demonstrated that these decommissioning

techniques have proven to be successful in prohibiting unauthorized use (Monitoring Reports for

FY 2005, pp. 183-194 and 200- 208; FY 2006, pp. 94-104; FY 2007, pp. 87-93).” (DN, p. 13).

Please also refer to Response to Issue III for discussion on monitoring and decommissioning.

I find that the SNF completed the appropriate site-specific analysis and violated no law,

regulation, or policy.

Regional Forester, Appeal Deciding Officer 15

Issue IX: “We respectfully request that the Forest Service consider the above listed roads and

trails as part of the route network that will remain available for use. If not, please provide a

scientifically adequate and examined analysis of the reasons for the closures, as required by

NEPA.” (NOA, p. 14).

Response: Please also refer to Response to Issue V and Response to Issue VIII for discussion

on site-specific analysis.

Appellants list approximately eighteen roads and trails that they think should be opened or

remain open for OHV traffic. This list is pretty similar to one that was submitted during the

Official Comment period. The SNF developed detailed responses to this list (DN, App. C, pp.

69-75, 105, 218). Clearly, the SNF has given a rationale for why those proposed roads or trails

will no longer be open. For example:

Appellants want ATV use on South Fowl lake Road; however, the SNF has noted that

South Fowl Lake Road does not cross Forest Service land and is under jurisdiction of the

State of Minnesota as State Forest Road 328. (DN, App. C, p. 73).

Appellants oppose the “elimination of ATV traffic on the Tofte Snowmobile Trail.”

(NOA, p. 12). However, the SNF evaluated this specific trail and found, “During site

evaluation it was determined that the current condition of the trail was unsuitable for

OHV travel due to wet and unstable trail conditions. All snowmobile trails are „non-

motorized except for snowmobiles‟ so any OHV use of this is trail is illegal.” (DN, App.

C, p. 69).

Appellants want use on Devil Track campground and neighboring snowmobile trail open.

However, the SNF noted that use is not allowed on this trail because, “it runs through wet

areas that would be subject to greater potential for resource damage.” (DN, App. C, p.

71).

Appellant argue that Ball Club Road should allow ATV use, but the SNF noted that road

has always been closed to OHV use and “is not proposed to open in any alternatives as it

does not meet the purpose and need of providing loops.” (DN, App. C, pp. 72, 75).

However, interestingly, the Appellants point out six roads wherein they simply express their

strong support of ATV use occurring on a particular road (e.g., the S. Brule parking lot and

Greenwood Road from the parking lot to Swamper Trail, but ATV use is allowed on this section)

(DN, App. C, p. 71). Appellants have not asserted that the SNF violated any law, regulation, or

policy in this regard. Rather, they simply disagree with the Responsible Official‟s decision on

some particular roads. Based on the aforementioned, I find that adequate reasons are disclosed

for the roads that Appellants cited and find no violation of law, regulation, or policy.

Regional Forester, Appeal Deciding Officer 16

Recommendation

I recommend affirming Forest Supervisor James W. Sanders‟ DN of December 16, 2008, after

reviewing the PR for the Superior National Forest Travel Management Project, and considering

each issue raised by the Appellants. However, I acknowledge that I have also recommended a

reversal on another appeal filed by Friends of the Boundary Waters Wilderness; Center for

Biological Diversity; League of Women Voters of Minnesota; Minnesota Center for

Environmental Advocacy; Northeastern Minnesotans for Wilderness, and Sierra Club, North Star

Chapter. My reversal is related to the very specific issue of air quality; an issue that was not

brought up in this current appeal.

/s/ Meg Mitchell

MEG MITCHELL

Appeal Reviewing Officer

Forest Supervisor

cc: Patricia R Rowell