United States

Department of

Agriculture

Forest

Service

Rocky

Mountain

Region

740 Simms Street

Golden, CO 80401

Voice: 303-275-5350

TDD: 303-275-5367

It’s Cool to Be Safe Printed on Recycled Paper

File Code: 1570-1

10-02-00-0027 Date: July 29, 2010

Colin J. Paterson

President

Norbeck Society

P.O. Box 9730

Rapid City, SD 57709

Dear Mr. Paterson:

On June 13, 2010, you filed a notice of appeal on behalf of the Norbeck Society. Your timely

appeal was filed pursuant to 36 CFR 215, and challenged Forest Supervisor Jane Darnell’s

decision to select a modification of Alternative 2 and a modification of Alternative 3 for the

Nebraska National Forest Travel Management Plan. The Forest Supervisor signed the Record of

Decision (ROD) and the Final Environmental Impact Statement (FEIS) on April 13, 2010, and

the legal notice was published on April 30, 2010.

I have reviewed your appeal, the ROD, the FEIS, and supporting documentation in the appeal

record. I have weighed the recommendation from the Appeal Reviewing Officer and

incorporated it into this decision. A copy of the Appeal Reviewing Officer’s recommendations

is enclosed. This letter constitutes my decision on your appeal including the specific relief

requested.

Action Appealed The Forest Service released the FEIS and ROD for travel management on the Nebraska National

Forest, Buffalo Gap National Grassland, Oglala National Grassland and Samuel R. McKelvie

National Forest on April 13, 2010. The FEIS analyzes a motorized vehicle system to improve

management of motorized vehicle use on National Forest System lands within the Nebraska

National Forest and Grasslands in accordance with regulations at 36 CFR Parts 212, 251, 261

and 295 and described in the Travel Management, Designated Routes and Areas for Motor

Vehicle Use, Final Rule. The Forest Supervisor selected a modification of Alternative 2 for the

Pine Ridge and Bessey Ranger District of the Nebraska National Forest, the Samuel R. McKelvie

National Forest, the Oglala National Grassland and the Fall River Ranger District portion of the

Buffalo Gap National Grassland. The Forest Supervisor selected a modification of Alternative 3

for the Wall Ranger District portion of the Buffalo Gap National Grassland.

The project area consists of federal public lands managed by the Nebraska National Forests and

Grasslands comprising approximately 950,000 acres in southwestern South Dakota and

Northwestern Nebraska. The decision would designate about 930 miles of open roads and trails,

maintain about 3,100 acres open to off-road motorized use, and provide for dispersed camping

and game retrieval across about 46,700 acres. In addition, the decision establishes sound level

limits for off-highway vehicles, closes a majority of the motorized cross country travel, and

amends the Forest Plan.

Colin J. Paterson 2

Appeal Reviewing Officer’s Findings and Recommendation

Appeal Reviewing Officer (ARO) Bill Bass found that your appeal focused on four main points:

Alleged violations of law, regulation or policy in context of maintenance and

administration of roads;

Minimum road system;

Non-motorized recreation; and

Public safety.

The ARO found that documentation provided by Forest Supervisor Darnell demonstrated

compliance with applicable laws, regulations, and policies. ARO Bass has recommended

affirmation of Forest Supervisor Darnell’s decision.

Decision

After reviewing the appeal record, I agree with ARO Bass’ analysis as presented in the

recommendation letter. I believe the record is adequate to support the Forest Supervisor’s

decision. The appeal issues raised have been considered. The Forest Supervisor’s decision is

affirmed and your request for relief is denied. This project may be implemented on, but not

before, the 15th

business day following the date of this letter (36 CFR 215.9(b)). This decision

constitutes the final administrative determination of the Department of Agriculture (36 CFR

215.18(c)).

Sincerely,

/s/ Maribeth Gustafson

MARIBETH GUSTAFSON

Appeal Deciding Officer

Deputy Regional Forester, Operations

Enclosure

cc: Jane D Darnell

Bill Bass

Forest Service

Rocky Mountain Regional Office

740 Simms Street Golden, CO 80401-4702 Voice: 303-275-5350 TDD: 303-275-5367

It’s Cool to Be Safe Printed on Recycled Paper

File Code: 1570-1 01-10-00-0027

Date: July 29, 2010

Route To:

Subject: Recommendation Memorandum for Travel Management on the Nebraska National Forest, Buffalo Gap National Grassland, Oglala National Grassland and Samuel R. McKelvie National Forest

To: Maribeth Gustafson, Appeal Deciding Officer

I have reviewed the appeal record regarding the June 13, 2010 appeal of the decision of Forest Supervisor Jane Darnell concerning the Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) by the Norbeck Society. My review of the appeal as submitted by the eligible Appellant focused on the decision documentation developed by the Forest Supervisor in reaching her decision. Pursuant to 36 CFR §215.13(f)(2), this will constitute my written recommendation concerning the disposition of the appeal, and I am forwarding the appeal record to you. DECISION BEING APPEALED The Forest Service released the FEIS and ROD for travel management on the Nebraska National Forest, Buffalo Gap National Grassland, Oglala National Grassland and Samuel R. McKelvie National Forest and the legal notice was published on April 30, 2010. The FEIS and ROD analyzes and implements a motorized vehicle system to improve management of motorized vehicle use on National Forest System lands within the Nebraska National Forest and Grasslands in accordance with regulations at 36 CFR Parts 212, 251, 261 and 295 and described in the Travel Management; Designated Routes and Aras for Motor Vehicle Use; Final Rule. The Forest Supervisor selected a modification of Alternative 2 for the Pine Ridge and Bessey Ranger District of the Nebraska National Forest, the Samuel R. McKelvie National Forest, the Oglala National Grassland and the Fall River Ranger District portion of the Buffalo Gap National Grassland. The Forest Supervisor selected a modification of Alternative 3 for the Wall Ranger District portion of the Buffalo Gap National Grassland. The Project area consists of federal public lands managed by the Nebraska National Forests and Grasslands comprising approximately 948,018 acres in southwestern South Dakota and northwester Nebraska. APPEAL SUMMARY Forest Supervisor Darnell signed the ROD on April 13, 2010 and the legal notice was published on April 30, 2010. Mr. Paterson submitted comments on behalf of the Norbeck Society during the comment period and has eligibility to appeal. The notice of appeal was filed on June 13, 2010 within the 45-day appeal period that ended on June 14, 2010.

Colin J. Paterson 2

Mr. Paterson, on behalf of the Norbeck Society, requested the following relief: The appellants request that the Proposed Action (decision) authorized in the ROD not be implemented, with the exception of the following decision elements that the appellants did not appeal: (1) motorized cross country travel as described in the ROD (p. 8); and (2) Forest Plan Amendment No. 5 to the 2002 Revised Forest Plan as Amended as described in the ROD (p. 8). Appellants request this relief because they assert that the FEIS was not prepared in accordance with federal statutory law and the regulations propounded under these laws, and because the administrative record, FEIS, and ROD lack significant material information that is necessary to the decision maker and the public for their analysis.

ISSUES AND DISCUSSION

Appeal Issue A. The Nebraska National Forest has violated 36 CFR 212.55 by not giving adequate consideration to “the need for maintenance and administration of roads, trails, and areas that would arise if the uses under consideration are designated; and the availability of resources for that maintenance and administration.” Specifically FSM 7715.03 states the responsible official shall “consider maintenance and administrative obligations and capability in the context of future budgets and staffing.” This failure to disclose and analyze information regarding the maintenance and administration of existing and newly designated roads, trails and areas is also a violation of the National Environmental Policy Act. The Forest Service has failed to adequately respond to all comments on these issues.

1. Maintenance and administration costs. There is limited discussion of annual maintenance costs for roads, trails, and signs.

2. Law enforcement. There is little discussion of the role of law enforcement in the FEIS. There is no discussion of current staffing levels, costs, or any plans of increasing law enforcement officers (LEO’s)

3. Travel system and administration and overhead costs. Apart from law enforcement, administration of the OHG travel management system is another cost consideration. The FEIS and ROD do not say if there are plans to add staff or what the annual costs of administration and overhead will be as a result of this travel management system.

4. Restoration and rehabilitation. On page 111 of the FEIS, “Use should stop on most the estimated 2,835 miles of existing non-system roads that may not be delegated for motorized use removing most of the potential need to expend funds to repair environmental damage.” This is a curious statement. It seems to indicate there is currently a need to repair environmental damage from the 2,835 miles of non-system roads. There is no indication of the time and cost involved in repairing this damage. Also, it is unclear how the environmental damage goes away because users stop using the roads.

5. Total annual costs. The NNFG did not attempt to compile a comprehensive cost figure.

6. Funding resources. In the FEIS and ROD, there is no detailed discussion quantifying current and future funding from grants, fees, and partnerships. Based on the lack of detail or quantification it is difficult to see that the NNFG has adequate

Colin J. Paterson 3

resources available for maintenance and administration. The NNFG is proposing a motorized system that may far exceed available resources to manage the system, and the forest is not considering the fiscal implications of the designation proposals and decisions, as required.

Discussion: The responsible official must consider general criteria while designating roads, trails, and areas for motor vehicles. This includes the need and availability of resources for maintenance and administration (36 CFR 212.55(a)). The Forest Service directives also acknowledge this concern in FSM 7715.5(1) (c)). The manual states “While important, the scarcity or abundance of resources to maintain and administer designated roads, trails, and areas should not be the only consideration in developing travel management proposals.”

The Costs of Construction and Maintenance section in chapter 3, Affected Environment of the FEIS (pp 66 through 68) identifies the process used to determine the maintenance level for all the roads in the project area. It also identifies possible options of funding for future maintenance of forest roads. The section describes how the road maintenance funding can be enlarged by utilizing road agreements with counties, and also by federal highway funding on a yearly basis. There is also internal funding that is available based on whether the road is of special environmental or recreational importance.

The Cost of Construction and Maintenance in chapter 4, Environmental Consequences of the FEIS (pp 110 through 112) identifies the process for identifying which projects will be constructed and maintained. This section also identifies opportunities of funding for future construction and reconstruction activities. These can include state and private grants and cooperative agreements with interested user groups. This section also indicates that they can close and store routes until resources can be found or the route will be decommissioned and/or rehabilitated and allowed to heal as the situation allows.

Travel Analysis Reports were developed for the public for the Fall River, Pine Ridge, and Wall Ranger Districts. These reports contain economic information, analysis of impacts, needs, and uses on all the roads in the districts. An Economic Assessment, which included all the roads on the Bessey and McKelvie Ranger Districts that was also developed. These documents are in the record.

Law enforcement for the travel management plan is addressed in the Forest Service regulation 36 CFR Part 212, Subpart B. These regulations indicate that the ability to “adequately” enforce the motorized use restrictions is a subjective measurement.

This appeal issue was responded to in response to comments received on the DEIS. The FEIS includes responses about law enforcement (FEIS Appendix D pp 25 through 26 letter 147 Enforcement Issue) and costs of construction and maintenance (FEIS Appendix D pp 27 through 28 letter 147, 216 Cost of Construction and Maintenance Display.)

The responsible official has no requirement to demonstrate the ability to fund maintenance, operation, and enforcement of the areas designated in the travel management decision. The requirement is to consider those factors, and I find the Forest Supervisor complied with these

Colin J. Paterson 4

regulations. I find she considered the availability of resources for maintenance, management enforcement and administration of these areas designated in the travel management plan.

Appeal Issue B: Minimal roads. Travel Management regulations specify that responsible officials “must identify the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of National Forest System lands.” (36 CFR § 212.5 (b) (1)) The regulations define the “minimum system” as “the road system determined to be needed to meet resource and other management objectives adopted in the relevant land and resource management plan (36 CFR part 219), to meet applicable statutory and regulatory requirements, to reflect long-term funding expectations, to ensure that the identified system minimizes adverse environmental impacts associated with road construction, reconstruction, decommissioning, and maintenance.” (36 CFR § 212.5 (b) (1)) In determining the minimum system, the responsible official is required to “incorporate a science-based roads analysis at the appropriate scale and, to the degree practicable, involve a broad spectrum of interested and affected citizens, other state and federal agencies, and tribal governments.” (36 CFR § 212.5 (b) (1)) In the FEIS, the Forest Service should describe the process used to evaluate and identify the “minimum system,” and address whether each of the alternatives analyzed achieve this standard.

The regulations also state that responsible officials must “identify the roads on lands under Forest Service jurisdiction that are no longer needed to meet forest resource management objectives and that, therefore, should be decommissioned or considered for other uses, such as for trails.” (36 CFR § 212.5 (b) (2)) Forest officials are further required to “give priority to decommissioning those unneeded roads that pose the greatest risk to public safety or to environmental degradation.” (36 CFR § 212.5 (b) (2)) Neither identifying the minimal road system or decommissioning roads were addressed in the FEIS and ROD. This should have been done prior to, or at a minimum, at the same time as, the designation of roads, trails, and areas for motorized use.

Discussion: There are three separate rational in our discussion of this appeal issue.

1. The Forest was not required to identify a minimum road system or perform the minimum road system analysis, per FSM 7712 (1).

2. The record indicates that the Forest conducted travel analysis, which is the forest service process for determining a minimum road system, on each district. The results of these analyses provided the basis for the Forest-wide analysis documented in the FEIS.

3. The Forest, by application of criteria in 36 CFR 212 and through the process of selecting the alternative for implementation, in effect identified a minimum road system needed to meet management objectives.

The requirement recited by appellant is from the travel management rule 36 CFR 212 published January 9, 2009. Language which applies to the transition to these requirements is found at in Forest Service Manual at FSM 7712:

Travel analysis assesses the current forest transportation system and identifies issues and assesses benefits, problems, and risks to inform decisions related to identification of the

Colin J. Paterson 5

minimum road system per 36 CFR Part 212.5(b)(1) and designation of roads, trails and areas for motor vehicle use per 36 CFR Part 212.51. Travel analysis is not a decision-making process. Rather, travel analysis informs decisions relating to administration of the forest transportation system and helps to identify proposals for changes in travel management direction (ex. 01). 1. Use travel analysis (FSH 7709.55, ch. 20) to inform decisions related to identification of the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of NFS lands per 36 CFR 212.5(b)(1) and to inform decisions related to the designation of roads, trails, and areas for motor vehicle use per 36 CFR 212.51, provided that travel analysis is not required to inform decisions related to the designation of roads, trails, and areas for those administrative units and ranger districts that have issued a proposed action as of January 8, 2009. 2. Travel analysis for purposes of identification of the minimum road system is separate from travel analysis for purposes of designation of roads, trails, and areas for motor vehicle use. Travel analysis for both purposes may be conducted concurrently or separately. 3. Any proposals resulting from travel analysis for either purpose may be addressed in the same or different environmental analyses. 4. When proposing to revise designations, consider using travel analysis as appropriate, depending on the scope of the proposed revisions.

Scoping for the Nebraska National Forest Travel Management effort was formally initiated with a Notice of Intent (NOI) in January of 2007. In accordance with the FSM direction above, the Nebraska National Forest is not required to include a minimum road system analysis as part of this record. While a “minimum road system needed for safe and efficient travel and for administration, utilization, and protection of National Forest System lands.” (36 CFR § 212.5 (b) (1) is not specifically addressed in either the ROD or the FEIS, the stated purpose and need for the action on Page 3 of the EIS includes “ensuring safe and efficient travel for administration, utilization, and protection of NFS lands” and complying with the Forest Plan’s “identification of the minimum transportation system”. The entire purpose and need from page 3 of the EIS follows:

Purpose and Need for Action The purpose and need for this action is to improve management of motorized vehicle use on National Forest System (NFS) lands within the Nebraska and Samuel R. McKelvie National Forests, and Buffalo Gap and Oglala National Grasslands, in accordance with November 2005 provisions of 36 CFR Parts 212, 251, 261, and 295 “Travel Management; Designated Routes and Areas for Motor Vehicle Use” (Travel Management Rule or TMR). This rule requires designation of those roads, trails, and areas that are open to motor vehicle use in order to reduce: (1) Damage to soil, watershed, vegetation, and other forest resources; (2) Harassment of wildlife and significant disruption of wildlife habitats; (3) Conflicts between motor vehicle use and existing or proposed recreational uses of NFS lands or neighboring federal lands; and (4) Conflicts among different classes of motor vehicle uses of NFS lands or neighboring federal lands. In

Colin J. Paterson 6

addition, the responsible official shall consider: (5) Compatibility of motor vehicle use with existing conditions in populated areas, taking into account sound, emissions, and other factors. The Travel Management Rule also states that the use of motor vehicles will be prohibited off of the designated system, with exemptions (36 CFR 212.51(a)). Specifically, this project intends to: • Implement the National Travel Management Rule by designating roads, trails and

areas open for motorized travel and restricting cross-country travel. • Amend the Forest Plan, which specifically allows off-road motorized use to continue

in compliance with Forest Supervisor special orders, to make the Forest Plan consistent with the TMR.

• Reduce adverse resource impacts caused by user-created routes or excessive all-terrain vehicle use on existing roads and trails.

• Provide a sustainable system of roads, trails, and areas for long-term recreational and administrative motor vehicle use.

• Reduce potential for conflicts between motorized and non-motorized recreational uses.

• Provide for appropriate seasonal restrictions of certain designated routes to protect resources while providing access to public lands.

• Ensure safe efficient travel for administration, utilization, and protection of NFS lands.

• Comply with Nebraska National Forest Land and Resource Management Plan (Forest Plan), Goal 4a, Objectives 1, 2, and 3, which discuss identifying the minimum transportation system and identifying and designating motorized and non-motorized opportunities while minimizing adverse environmental effects.

A review of the record clearly indicates that a travel analysis supporting the above purpose and need was performed District by District, and formed the basis for formulating/selecting the preferred alternative. The documentation confirming this is located in the Administrative Record in Volume 4: Resource Analysis, 4.0 Travel Analysis, for the Bessey (401), Fall River (403), Pine Ridge (404) and Wall (405) Ranger Districts. It is reasonable to interpret requirements of 36 CFR 212.5 to be defining the very network of travel ways which comply with this purpose and need. The criteria set out at 212.5 are compatible with the purposes (hence criteria) set out above. We accept that, although not expressly stated, the Forest Supervisor has complied with the requirement of regulation. I find that, per FSM 7712 and by virtue of having been initiated before January 8, 2009, the Nebraska National Forest Travel Management process is expressly exempted from the requirement to conduct certain travel analyses to support this decision. I also find that the Forest level analysis documented in the record and the FEIS was based on a compilation of district level travel analysis which meets the intent of 36 CFR 212. I also find that the system of roads and travel ways selected in this Decision does in fact represent the minimum road system in accordance with direction in 36 CFR 212.

Colin J. Paterson 7

Appeal Issue C: Non-motorized recreation not considered. The Supervisor has violated 36 CFR § 212.55, by not giving adequate consideration to the provision of recreational opportunities and minimizing conflicts between motor vehicle use and existing or proposed recreational uses of National Forest System lands (see Appendix A). Discussion: Non-motorized recreation was considered throughout the FEIS. Reducing conflict with non-motorized use is part of the purpose and need for the action (FEIS, pg 3). In Chapter 3, Affected Environment, of the FEIS (page 38-39), the existing condition is described and includes a discussion of conflict between motorized and non-motorized use as well as a discussion on the recreation opportunity spectrum. The FEIS includes a general discussion regarding the effects of the travel alternatives on non motorized recreation (see pages 73 to 75 FEIS), and in individual travel analyses performed by Districts. Non-motorized recreation was considered in the Forest Service’s response to comments on pages 2, 4, 10, 16, 29, 30, 36, 37, 54, 61, 65, 71, 84, 110, 111, 117, and 119. In addition, the ROD describes that reducing impacts to non-motorized users was part of the rationale for the decision (page 12 and 22). I find that the Forest Supervisor considered non-motorized recreation in the analyses and decision, including the conflict between motorized and non-motorized recreationists. Appeal Issue D: Public safety. The Supervisor has violated 36 CFR § 212.55 for not giving adequate consideration to public safety and creating a dangerous situation for motorized and non-motorized users (see Appendix A). Discussion: Regulations covering designation of roads and trails for motor vehicle use include criteria that the responsible official must consider when making those designations, including public safety and conflicts among different classes of motor vehicle uses (36 CFR 212.55 (a) & (b)(4)). The FEIS addressed the issue of motorized mixed use on designated roads and public safety risks (p. 68-69, 113-115). On p. 68-69, applicable state law regarding legal requirements for motorized vehicles and operators using forest roads is discussed, and the analysis needed to support the designation of “mixed use” roads where both highway legal and non-highway legal vehicles could operate is described, including factors considered. On p. 113-115 of the FEIS (Safety section), the analysis process and criteria considered to inform the designation of roads open to motorized mixed use is described and miles of mixed use roads and trails by alternative is identified. The FEIS states that a motorized mixed use analysis was completed in 2010 that included the roads in all action alternatives designated as “roads open to all vehicles” (p. 114). These motorized mixed use analyses are contained in the project record (4.N.01 through 4.N.16 Various Engineering Judgment Reports). In the ROD (p. 24-25), the rationale for the decision on designated motorized mixed use roads is presented. Public safety was considered in the context of the public’s recreational interests for which these roads provide access, and the mixed use analysis indicated that the safety risks were low for these roads. With regard to the appellant’s challenge, I find that the Forest Supervisor did give adequate consideration to public safety, in compliance with 36 CFR 212.55, with regard to motorized mixed use on roads designated for such use.

Norbeck Society P. O. Box 9730 Rapid City, SD 57709

USDA, Forest Service, Region 2 June 13, 2010

Attn: Appeal Deciding Officer

740 Simms St.

Golden, CO 80401

Re: Appeal of the Nebraska National Forests and Grasslands Final Environmental Impact

Statement & Record of Decision for the Travel Management Plan on the Nebraska National

Forests and Grasslands, Buffalo Gap National Grassland, Oglala National Grassland, and Samuel

R. McKelvie National Forest (hereafter Travel Management Plan).

Dear Forest and Grasslands Supervisor Darnell and Appeals Officer:

The Norbeck Society (“Appellant”) hereby submits this administrative appeal of the U.S. Forest

Service‟s Final Environmental Impact Statement (“FEIS”) and Record of Decision (“ROD”) for

the Travel Management Plan prepared and issued April 2010 by the Nebraska National Forests

and Grasslands ( hereafter NNFG).

This Notice of Appeal is filed pursuant to, and in compliance with, 36 CFR § Part 215.13.

Appellants provided timely substantive comments on the “Draft Environmental Impact

Statement,” notice, which was released to the public in November 2009. The Forest

Supervisor‟s decision failed to adequately address, respond to, or even acknowledge many of the

comments filed by the Appellant. In addition, the NNFG decision violates executive orders,

laws, agency directives and is contrary to state law in both Nebraska and South Dakota, as set

forth in the Appellant‟s Statement of Reasons for its appeal.

As required by 36 CFR § 215.2, Appellants provide the following information and address and

contact person:

1) Norbeck Society, Colin J. Paterson, President

P. O. Box 9730

Rapid City, SD 57709

cpaterson@norbecksociety.com

Telephone: (605)348-4494

2) The appellant objects to the decision by NNFG Supervisor, Jane Darnell, to adopt a

combination of Alternatives 2 and 3, with modifications, as described in the ROD dated April 13,

2010.

3) Attached to this cover letter, Appellant provides a Statement of Reasons that presents specific

reasons for the appeal of the decision, the related evidence, and rationale on why the decision

violates applicable laws and regulations, and the specific relief requested in response to our

concerns.

2

We look forward to working with the Forest Service in fulfilling the intent of NEPA, NFMA,

and the other statutes and regulations the Forest Service works within, through a complete and

accurate analysis of the impacts of this project.

Sincerely,

Colin J. Paterson, President,

On Behalf of the Norbeck Society

P. O. Box 9730

Rapid City, SD 57709

cpaterson@norbecksociety.com

Phone (605)348-4494

APPEAL BEFORE THE APPEALS DECIDING OFFICER

REGION 2 NATIONAL FOREST

USDA FOREST SERVICE

GOLDEN, COLORADO

)

NORBECK SOCIETY, ) Appeal No. _____________

)

Appellant, )

) In Re: Appeal of the FEIS & Record of

) Decision for the Travel Management Plan

vs. ) on the Nebraska National Forests and

) Grasslands

)

JANE DARNELL, Supervisor, )

Nebraska National Forests & Grasslands )

)

Responsible Official. )

)

I. NOTICE OF APPEAL

Pursuant to 36 C.F.R. § 215, the Norbeck Society (“Appellant”) is filing an appeal regarding the

Final Environmental Impact Statement (“FEIS”) and Record of Decision (“ROD”) for the Travel

Management Plan on the Nebraska National Forests and Grasslands (NNFG), Buffalo Gap National

Grassland, Oglala National Grassland, and Samuel R. McKelvie National Forest (hereafter Travel

Management Plan) entered by NNFG Supervisor Jane Darnell (“Supervisor”). The Supervisor

signed the ROD, based upon the FEIS for the Travel Management Plan, on April 13, 2010.

Supervisor Darnell selected a combination of Alternatives 2 and 3, with modifications.

II. STATEMENT OF REASONS

A. Maintenance and administration of roads. The Supervisor has violated 36 CFR § 212.55 by not

giving adequate consideration to “the need for maintenance and administration of roads, trails, and

areas that would arise if the uses under consideration are designated; and the availability of resources

for that maintenance and administration.” Specifically FSM 7715.03 states the responsible official

shall “consider maintenance and administrative obligations and capability in the context of future

budgets and staffing” (Appendix A).

This failure to disclose and analyze information regarding the maintenance and administration of

existing and newly designated roads, trails and areas is also a violation of the National Environmental

Policy Act. NEPA requires federal agencies to assess the direct, indirect, and cumulative

2

environmental impacts of proposed actions, taking a “hard look” at environmental consequences, and

performing an analysis commensurate with the scale of the action at issue.1 “General statements about

„possible‟ effects and „some risk‟ do not constitute a „hard look‟ absent a justification regarding why

more definitive information could not be provided.” Neighbors of Cuddy Mt. v. United States Forest

Serv., 137 F.3d 1372, 1380 (9th Cir. 1998). Analysis of site-specific impacts must “contain a

reasonably thorough discussion of the significant aspects of the probable environmental

consequences.” California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). NEPA mandates a “hard look

at a decision‟s environmental consequences.” Id. An agency may not “rely upon forecasting

difficulties or the task‟s magnitude to excuse the absence of a reasonably thorough site-specific

analysis of the decision‟s environmental consequences.” Id. at 765; see also Salmon River Concerned

Citizens v. Robertson, 32 F.3d 1346, 1357 (9th Cir. 1994) (holding site-specific analyses for approval

of multiple sites required when the agency makes a “critical decision . . . to act on site development”

(internal citations omitted)).

We expect not only a new NEPA analysis to disclose a detailed accounting for these in-house actions

but also a full disclosure of associated costs for maintaining and administering the proposed system of

roads, trails, and area. In addition, we also expect that the financial resources (current and future) to

meet these maintenance and administration costs specifically be identified. At a minimum, the details

for 1) annual maintenance and administration costs, 2) law enforcement activities and costs, 3) travel

system administration and overhead costs, and 4) habitat restoration (and rehabilitation costs for

damaged areas already caused by uncontrolled ORV travel) must be identified. In addition, a total

annual cost summary (5) should be provided and funding sources (6) need to be named.

1. Maintenance and administration costs. There is a limited discussion of annual maintenance costs

for roads, trails, and signs. On page 110 of the FEIS:

“The number and uncertainty of the variables involved in this effort makes it very difficult to

estimate projected costs of implementing the action alternatives. Given these difficulties, the

Forest Service acknowledges the results may not prove accurate over time. Rather, the purpose of

the cost analysis that follows is to present a reasonable estimate based on the best information

available. It is believed this information is sufficient to reliably compare the levels of costs that

could be experienced under the alternatives.”

For the alternatives no quantification of maintenance costs for roads, trails, or signs has been

provided. The discussion of maintenance on FEIS pages 111-112 tends to minimize expenditure and

no presentation of data or historical costs to support these generalized statements is provided. If a

travel analysis report or road analysis report had been prepared for the NNFG, it was not referenced

in the Travel Management Plan.

There is no discussion of costs for repairing the current damage or future damage to stream

crossing(s).

Also, on page 2 of FEIS Appendix B “Alternatives 2, 3, and 4 include development of a primary

trailhead facility in conjunction with the Railroad Buttes off-road vehicle use area in Section 1, T.2

S., R.10 E. and a secondary trailhead facility in conjunction with the off-road vehicle use area in

Section 17, T.2 S., R.11 E. Development of the primary trailhead would include designated parking

and traffic flow, control of access to 160th Avenue including designated crossing points, picnic

shelters, restroom facilities, information and interpretative signs, and designated beginner rider loops.

The secondary trailhead would include designated parking and traffic flow, picnic shelters,

1 40 C.F.R. § 1502.2 (b) and 1508.8

3

information signs and restroom facilities at a smaller scale than the primary trailhead.” This is the

only mention of these developed facilities and, specifically, no mention of any associated costs or

funding sources is provided.

2. Law enforcement. There is little discussion of the role of law enforcement in the FEIS. On page 14

of the FEIS it states “The difference between action alternatives is minor from a law

enforcement perspective and law enforcement would have no bearing upon which action

alternative is chosen.” While the relative need for law enforcement may not differ between

alternatives, there remains a need for and will be a cost associated with law enforcement activity.

There is no discussion of current staffing levels, costs, or any plans of increasing law enforcement

officers (LEO‟s), which is interesting in light of the difficulty the NNFG has had with policing the

excessive damage at Railroad Buttes. The best effectiveness would be to have an adequate number of

LEO‟s on each ranger district. The enforcement of the motorized system on the NNFG will be both

on the motorized system and elsewhere. It will require an active and aggressive law enforcement

presence throughout the forests and grasslands for the Travel Management Plan to be effective.

Consider the following from an August 2007, Forest Service Law Enforcement Officer Report:

Nationwide Study2:

applicable to nationwide data, page 9, “The LEOs who responded reported a median 440,000

acres in their primary area of responsibility (range 12,680 to 17,000,000 acres; n = 281), and

further noted that they normally accessed a median 200,000 acres for patrol purposes (range

2,000 to 5,000,000 acres; n = 266).”

applicable to Region 2, page 83 : “The LEO respondents reported an average 873,726 acres in

their primary area of responsibility (n = 24; SD = 544,808), and further noted that they normally

accessed a median 300,000 acres for patrol purposes (n = 22; range 10,000 to 1,599,986).”

applicable to Region 2, page 85 “About 9 in 10 (92 percent) LEO respondents reported there

were too few LEOs in their patrol area of responsibility, whereas more than 6 in 10 reported too

few FPOs in their patrol area of responsibility (63 percent). Only 4 percent reported the number

of LEOs in their patrol area of responsibility was about right, and 25 percent reported the number

of FPOs in their patrol area of responsibility was about right.”

From the above, it would seem that the area that an LEO patrolled (200,000 acres nationwide) would

be the maximum area that should be assigned. The NNFG has many remote access points and roads

that endanger its resources to many potential outside threats. Considering the current state of

reprehensible damage that has been caused to the relatively small area represented by Railroad Buttes

(which, incidentally is near populated areas, thus should have been more easily policed), protecting

the NNFG presents a greater challenge to law enforcement than the average Region 2 forest.

Appendix B has a table of government LEO salaries by grade and step. An entry level LEO would be

Grade 5, with a starting salary of $38,619. A grade 9, step 10 wage level is $61,678. Given the

additional costs to support an LEO in the field, the total costs for one LEO could easily be $50,000 to

$100,000 per year.

2 Deborah J. Chavez and Joanne F. Tynon, August 2007, Forest Service Law Enforcement Officer Report:

Nationwide Study, PSW-RP-252, United States Department of Agriculture Forest Service Pacific Southwest

Research Station

4

It is up to the NNFG to detail their plans and costs for providing adequate law enforcement. No

where in any of these documents was a full accounting for these plans and costs provided.

3. Travel system and administration and overhead costs. Apart from law enforcement,

administration of the OHV travel management system is another cost consideration. But how costly?

The FEIS and ROD do not say if there are plans to add staff or what the annual costs of

administration and overhead will be as a result of this travel management system.

4. Restoration and rehabilitation. On page 111 of the FEIS, “Use should stop on most the estimated

2,835 miles of existing non-system roads that may not be delegated for motorized use removing most

of the potential need to expend funds to repair environmental damage.” This is a curious statement.

It seems to indicate there is currently a need to repair environmental damage from the 2,835 miles of

non-system roads. There is no indication of the time and cost involved in repairing this damage.

Also, it is unclear how the environmental damage goes away because users stop using the roads.

5. Total annual costs. The NNFG did not attempt to compile a comprehensive cost figure.

6. Funding resources. In the FEIS and ROD, there is no detailed discussion quantifying current and

future funding from grants, fees, and partnerships. There are the following references to funding:

FEIS Page 111 regarding construction “The ability of the Nebraska National Forest and Grasslands

to fund road and trail new construction or reconstruction activities will vary based on yearly funding

levels. It is anticipated that funding will be augmented with state and private grants and cooperative

agreements with interested user groups, especially if specific roads or trails address desired motorized

recreational opportunities.”

ROD Page 32 “Current motorized trail maintenance funds have been barely sufficient (using

volunteers) to maintain the current trail system to standard. If miles of ML 2 roads are designated as

“trails open to all vehicles,” the responsibility to provide maintenance funding for those new trails

will switch from the road maintenance program to the trails program. Motorized trails also compete

with non-motorized trails for funding. Motorized trail maintenance budgets may increase if new trails

are designated in the long term, however the level of any increase would be difficult to predict.

Maintenance funds could also be augmented by grants, volunteers, partnerships with motorized

groups, and potential user fees.”

Based on the lack of detail or quantification it is difficult to see that the NNFG has adequate resources

available for maintenance and administration. The NNFG is proposing a motorized system that may

far exceed available resources to manage the system, and the forest is not considering the fiscal

implications of the designation proposals and decisions, as required.

These are but a few examples of how the BHNF has failed to disclose the full scope of maintenance

needs and ability and the consequent impacts from the decision at hand and has produced a NEPA

analysis and accompanying decision that are fatally flawed and must be remanded to the forest to

comply with NEPA.

B. Minimal roads. Travel Management regulations specify that responsible officials “must identify

the minimum road system needed for safe and efficient travel and for administration, utilization, and

protection of National Forest System lands.” (36 CFR § 212.5 (b) (1)) The regulations define the

“minimum system” as “the road system determined to be needed to meet resource and other

management objectives adopted in the relevant land and resource management plan (36 CFR part

5

219), to meet applicable statutory and regulatory requirements, to reflect long-term funding

expectations, to ensure that the identified system minimizes adverse environmental impacts

associated with road construction, reconstruction, decommissioning, and maintenance.” (36 CFR §

212.5 (b) (1)) In determining the minimum system, the responsible official is required to “incorporate

a science-based roads analysis at the appropriate scale and, to the degree practicable, involve a broad

spectrum of interested and affected citizens, other state and federal agencies, and tribal governments.”

(36 CFR § 212.5 (b) (1)) In the FEIS, the Forest Service should describe the process used to evaluate

and identify the “minimum system,” and address whether each of the alternatives analyzed achieves

this standard.

The regulations also state that responsible officials must “identify the roads on lands under Forest

Service jurisdiction that are no longer needed to meet forest resource management objectives and that,

therefore, should be decommissioned or considered for other uses, such as for trails.” (36 CFR §

212.5 (b) (2)) Forest officials are further required to “give priority to decommissioning those

unneeded roads that pose the greatest risk to public safety or to environmental degradation.” (36 CFR

§ 212.5 (b) (2))

Neither identifying the minimal road system or decommissioning roads were addressed in the FEIS

and ROD. This should have been done prior to, or at a minimum, at the same time as, the designation

of roads, trails, and areas for motorized use.

We believe it makes sense to extend these analyses to motorized trails as well. It is difficult to assess

the “necessary” road system, predict and minimize adverse environmental impacts, or analyze relative

to long-term funding expectations in the absence of a comprehensive assessment of both motorized

roads and trails. In the same way that travel planning provides an opportunity to downgrade or

decommission unneeded roads, it provides an opportunity to decommission and restore or convert

unneeded motorized trails to non-motorized uses, consistent with a landscape zoning approach as

described above.

C. Non-motorized recreation not considered. The Supervisor has violated 36 CFR § 212.55, by not

giving adequate consideration to the provision of recreational opportunities and minimizing conflicts

between motor vehicle use and existing or proposed recreational uses of National Forest System lands

(see Appendix A).

For the NNFG non-motorized community, their impact by numbers and economic contributions far

exceed those of the OHV users:

Nebraska National Forest and Grasslands visitor user survey (FEIS page 43)

Activities %

participation

% as main

activity

Backpacking, hiking, walking & other non-motorized 60.7% 21.5%

OHV use 12.7% 5.0%

From economic contribution page 112 of FEIS:

Activities employment Labor income

Backpacking, hiking, walking, horse riding, bicycling 11 $192,736

OHV use 3 $46,593

There is also evidence that OHV use is on the decline, (FEIS page 105) “However, a comparison of

National Visitor Use Monitoring data for Region 2 National Forests indicates that the percent of

6

National Forest visits involving OHV use as a main (or primary) activity has decreased from

approximately 3 percent to 2 percent between 2003 and 2007 while total numbers of recreational

visits has remained relatively unchanged (USDA Forest Service 2008c; USDA Forest Service

2004d).”

Despite the popularity and economic contribution of non-motorized activities, the NNFG offers

limited resources to this group.

A major guideline considered and discussed in the FEIS is the Recreational Opportunity Spectrum

(ROS) concept. The USFS has categorized sections of the NNFG into seven ROS classes that reflect

accessibility, remoteness, naturalness, and other qualities. Traditional recreation users have preferred

those areas classified as primitive and semi-primitive non-motorized for many of their activities. The

majority of areas within these two classes are on wilderness, roadless areas, or botanical areas. In the

NNFG there are no primitive areas and only about 8% of the total area is classified semi-primitive

nonmotorized, thus severely restricting opportunities for traditional recreational users. In other

Region 2 national forests and in national forests nationwide, the comparable percentage of primitive

and semi-primitive nonmotorized areas is more than 40%, reflecting a significant amount of

wilderness and roadless areas.

Uncontrolled, unregulated use by the OHV community already has spawned 2,835 of unauthorized

trails. As noted above, many of these likely require rehabilitation.

The Norbeck Society is a member of the South Dakota Grasslands Wilderness Coalition and is

supportive of the efforts by local citizens and conservation groups to designate those areas of Indian

Creek, Red Shirt, and Cheyenne River as wilderness areas. We are concerned over the plan to retain

road 7129 that goes through the middle of Indian Creek and is planned to extend all the way to the

south border of the proposed wilderness area. This road would also be open to all vehicles including

unlicensed vehicles. We fear that any traffic, but in particular, off road vehicles, would cause great

damage to this valued area. We believe that this action could endanger the possible designation of

Indian Creek as a wilderness area. The inclusion of 7129 as an open road shows both a lack of

consideration for all recreational users but also contributes to conflicts between motor vehicle use and

existing or proposed recreational uses of National Forest System lands.

On the Red Shirt proposed wilderness area is road 7055 that would also be open to all vehicles

including unlicensed vehicles. We do not object to the road, but we recommend that usage be limited

to HLV only.

D. Public safety. The Supervisor has violated 36 CFR § 212.55 for not giving adequate consideration

to public safety and creating a dangerous situation for motorized and non-motorized users (see

Appendix A).

On the new road and trail system for the NNFG, 160 miles will be for HLV only, 505 miles open to

both HLV and OHV, and 265 miles of motorized trails (ROD Table 1, page 4).

On the 505 miles of mixed use roads and 265 miles of motorized trails the NNFG will allow use by

minors without driver‟s licenses and allow use by unlicensed and probably uninsured vehicles. Of the

265 miles of motorized trails, 195 miles would be open to all vehicles. It is very problematic that

uninsured vehicles and individuals could be involved in accidents on the NNFG. The responsibility

for damages will be complicated and uncertain. It is likely that the public will be subsidizing such

costs.

7

We received a copy of the Engineering Report for Mixed-Use Designation for the NNFG, March

2010. By our count 470 miles of the 505 miles of roads were analyzed. We believe the report is

flawed for the following reasons:

1. Not all roads were considered, since the 505 miles of mixed use roads in the decision exceed

those analyzed in the engineering report.

2. The 195 miles of mixed-use trails were not considered but should have been. The distinction

between certain roads and trails are probably more due to semantics than anything else.

3. For South Dakota roads the analysis was prepared assuming “If the Forest Service decides to

allow use of non-highway legal motorized vehicles on National Forest System (NFS) roads, there

will still be a State of South Dakota law requirement for the operator of those vehicles to have a

valid driver‟s license to operate on these public roads.” Yet on page 7 of the ROD it states “My

decision to allow mixed use (non-licensed ATVs and operators) on some Forest Service

motorized routes in South Dakota would not be consistent with South Dakota law.” The engineer

appeared to assume that non-licensed operators would not be allowed on these mixed-use roads,

but that is not the case. These unlicensed operators of all ages represent an additional risk as

referenced on page 5 of the “Guidelines for Engineering Analysis of Motorized Mixed Use on

National Forest System Roads, 2005” where it is stated “A higher probability of crashes exists

where there is a combination of factors such as: ….. Drivers are not required to be licensed or

certified.”

For the Nebraska roads it is unclear if the engineer considered the additional risks represented by

unlicensed drivers of all ages.

4. It is not consistent with other NNFG reports. For example, routes 7118 and 7119 of the

Buffalo Gap National Grasslands are grouped with other routes for the mixed-use analysis. In the

mixed-use report they are described as having ”low traffic volume”. However, in Table 5.3 of the

February 23, 2009 draft of the Wall Ranger District Travel Analysis Report, the same routes are

described as having “lots of traffic”.

On the Consumer Product Safety Commission website, www.ATVSafety.gov, it is stated “It (sic) also

very important for all to know that children under 16 should never ride an adult-size ATV.” Also on

the website are statistics showing that deaths and accidents from OHV use have been steadily

increasing year by year. Nationwide 2006 deaths were estimated to be 907 and injuries at 146,600.

Year to year, deaths and injuries to children represent about 20% to 30% of the total. In South

Dakota from 1982 to 2008 there have been 60 reported deaths and at least 12 of those were children

under 16.

OHV recreation is a dangerous activity. It is unwise to allow children to operate OHV‟s in the

NNFG, not only presenting a danger to themselves but also to both motorized recreationists and non-

motorized recreationists and including the general public, such as tourists and residents in regular

vehicles.

For licensed drivers of licensed OHV‟s and pedestrians, the allowance of unlicensed OHV‟s,

unlicensed drivers and unlicensed children drivers on the 265 miles of motorized trails creates a

serious public safety concern. For all parties concerned, this creates an unacceptable and unnecessary

additional risk of death and injury. Also since most of the unlicensed vehicles and drivers would lack

insurance, the burden of damages may be borne by the insurance companies of licensed drivers or by

taxpayers.

8

The same comments for trails in the previous paragraph also apply to the 505 miles of mixed use

roads. However, for all licensed OHV‟s, cars, trucks, etc, the situation is aggravated by the

unexpected inclusion of unlicensed and inexperienced drivers on system roads. Most people would

expect that a road would not allow unlicensed vehicles and unlicensed drivers on these routes.

Where designated routes are on public USFS system roads, South Dakota state law requires

drivers/riders to be at least 14, have a valid driver‟s permit, and carry insurance. The Norbeck

Society recommends this be the standard set by the USFS for use of the road and trail system.

The FEIS and ROD are replete with violations of NEPA and fail to comply with 36 C.F.R. § 212 and the

ORV Executive Orders which the regulation implements. These violations must be remedied and a

decision issued that is compliant with all federal laws and regulations.

III. RELIEF SOUGHT

A. The Appellants are not appealing Record of Decision action (1) Motorized Cross County Travel,

“The majority of the NNFG will be closed to unrestricted motorized cross-country vehicle travel

unless specifically designated as open.” (ROD page 8) and (2) Forest Plan Amendment No. 5 to the

2002 Revised Forest Plan as Amended “Amendment: 1. Restrict motor vehicle use to designated

roads, trails and areas and document in the annual Motorized Vehicle Use Map (MVUM). Standard”

(ROD page 8).

B. Because the FEIS was not prepared in accordance with federal statutory law and the regulations

propounded under these laws, and because the administrative record, FEIS and ROD lack significant

material information that is necessary to the decision maker and the public for their analysis, the

Appellants, as set forth in our foregoing argument, request the balance of the Proposed Action

authorized in the ROD not be implemented. In conclusion, Appellants are willing to meet with the Forest Supervisor to discuss the issues raised in the

Appeal, in order to attempt to resolve them, and to ensure that these areas of the Forest are managed in a

way that complies with federal law.

Respectfully Submitted this 13th Day of June, 2010.

Colin J. Paterson, President,

On Behalf of the Norbeck Society

P. O. Box 9730

Rapid City, SD 57709

cpaterson@norbecksociety.com

Phone (605)348-4494

Appendix A 36 CFR § 212.5 Road System Management “(b) Road system—(1) Identification of road system. For each national forest, national grassland, experimental

forest, and any other units of the National Forest System (§212.1), the responsible official must identify the

minimum road system needed for safe and efficient travel and for administration, utilization, and protection of

National Forest System lands. In determining the minimum road system, the responsible official must incorporate a

science-based roads analysis at the appropriate scale and, to the degree practicable, involve a broad spectrum of

interested and affected citizens, other state and federal agencies, and tribal governments. The minimum system is the

road system determined to be needed to meet resource and other management objectives adopted in the relevant land

and resource management plan (36 CFR part 219), to meet applicable statutory and regulatory requirements, to

reflect long-term funding expectations, to ensure that the identified system minimizes adverse environmental

impacts associated with road construction, reconstruction, decommissioning, and maintenance.

(2) Identification of unneeded roads. Responsible officials must review the road system on each National Forest and

Grassland and identify the roads on lands under Forest Service jurisdiction that are no longer needed to meet forest

resource management objectives and that, therefore, should be decommissioned or considered for other uses, such as

for trails. Decommissioning roads involves restoring roads to a more natural state. Activities used to decommission

a road include, but are not limited to, the following: reestablishing former drainage patterns, stabilizing slopes,

restoring vegetation, blocking the entrance to the road, installing water bars, removing culverts, reestablishing

drainage-ways, removing unstable fills, pulling back road shoulders, scattering slash on the roadbed, completely

eliminating the roadbed by restoring natural contours and slopes, or other methods designed to meet the specific

conditions associated with the unneeded road. Forest officials should give priority to decommissioning those

unneeded roads that pose the greatest risk to public safety or to environmental degradation.”

36 CFR § 212.55 Criteria for designation of roads, trails, and areas “(a) the responsible official shall consider 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 that would arise if the uses under

consideration are designated; and the availability of resources for that maintenance and administration.

(b) Specific criteria for designation of trails and areas. In addition to the criteria in paragraph (a) of this section, in

designating National Forest System trails and areas on National Forest System lands, the responsible official shall

consider effects on the following, with the objective of minimizing:

(1) Damage to soil, watershed, vegetation, and other forest resources;

(2) Harassment of wildlife and significant disruption of wildlife habitats;

(3) Conflicts between motor vehicle use and existing or proposed recreational uses of National Forest System

lands or neighboring Federal lands; and

(4) Conflicts among different classes of motor vehicle uses of National Forest System lands or neighboring

Federal lands. In addition, the responsible official shall consider:

(5) Compatibility of motor vehicle use with existing conditions in populated areas, taking into account sound,

emissions, and other factors.”

FSM 7715.03

“6. Consider maintenance and administrative obligations and capability in the context of future budgets and

staffing. Administrative units and ranger districts should avoid adding routes to the forest transportation system

unless there is adequate provision for their maintenance. Grants, agreements, and volunteers may be used to extend

Forest Service resources.”

Executive Order 11644 Use of off-road vehicles on the public lands “Sec. 3. Zones of Use. (a) Each respective agency head shall develop and issue regulations and administrative

instructions, within six months of the date of this order, to provide for administrative designation of the specific

areas and trails on public lands on which the use of off-road vehicles may be permitted, and areas in which the use

of off-road vehicles may not be permitted, and set a date by which such designation of all public lands shall be

completed. Those regulations shall direct that the designation of such areas and trails will be based upon the

protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization

of conflicts among the various uses of those lands. The regulations shall further require that the designation of such

areas and trails shall be in accordance with the following--

(1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the

public lands.

(2) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats.

(3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or

proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with

existing conditions in populated areas, taking into account noise and other factors.

(4) Areas and trails shall not be located in officially designated Wilderness Areas or Primitive Areas. Areas and

trails shall be located in areas of the National Park system, Natural Areas, or National Wildlife Refuges and Game

Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely

affect their natural, aesthetic, or scenic values.”

Executive Order 11989 Off-road vehicles on Public Lands "Sec. 9. Special Protection of the Public lands.

(a) Notwithstanding the provisions of Section 3 of this Order; the

respective-agency- head shall, whenever he determines that the-use of

off-road vehicles will cause or is causing considerable adverse effects on

the soil, vegetation, wildlife, wildlife habitat or cultural or historic

resources of particular areas or trails of the public lands immediately

close such areas or trails to the type of off-road vehicle causing such

effects, until such time as he determines that such adverse effects have

been eliminated and that measures have been implemented to prevent future

recurrence."

"(b) Each respective agency had is authorized to adopt the policy that

portions of the public lands within his jurisdiction shall be closed to

use by off-road vehicles except those areas or trails which are suitable

and specifically designated as open to such use pursuant to Section 3 of

this order."

Appendix B

Source: http://www.opm.gov/oca/10tables/html/RUS_leo.asp