San Juan National Forest Lawsuit - San Juan Trail Riders
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San Juan National Forest Lawsuit

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action Nos.: 18-cv-02354-MSK

18-cv-02903-MSK

TRAILS PRESERVATION ALLIANCE,

SAN JUAN TRAIL RIDERS, PUBLIC

ACCESS PRESERVATION ASSOCIATION,

Petitioners and Intervenor-Respondents,

v.

U.S. FOREST SERVICE;

SAN JUAN NATIONAL FOREST;

KARA CHADWICK, Forest Supervisor;

DEREK PADILLA, Dolores District Ranger;

Federal Respondents,

and

WILDEARTH GUARDIANS;

SAN JUAN CITIZENS ALLIANCE;

DUNTON HOT SPRINGS, INC.;

SHEEP MOUNTAIN ALLIANCE,

Intervenor-Respondents and Petitioners.

____________________________________________________________________________

OPENING BRIEF ON THE MERITS BY PETITIONERS

TRAILS PRESERVATION ALLIANCE, SAN JUAN TRAIL RIDERS

and PUBLIC ACCESS PRESERVATION ASSOCIATION

___________________________________________________________________________

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TABLE OF CONTENTS

I. INTRODUCTION ………………………………………………………………………………………………………. 5

II. LEGAL FRAMEWORK …………………………………………………………………………………………….. 6

A. Administrative Procedure Act…………………………………………………………………………….6

B. National Environmental Policy Act. ……………………………………………………………………7

C. Travel Management Rule. ………………………………………………………………………………….8

III. STATEMENT OF FACTS ………………………………………………………………………………………. 10

A. The Project Area and Background. ……………………………………………………………………10

B. Chronology of the Travel Management Project. ………………………………………………….13

C. Trails at Issue and Nature of Recreational Travel in the Area. ………………………………15

D. General Overview of Travel Plan Restrictions. …………………………………………………..18

IV. ARGUMENT …………………………………………………………………………………………………………. 19

A. The Trail Riders Meet Standing Requirements. ………………………………………………….19

B. The Decision Fails to Consider Important Aspects of the Project and

Fails to Articulate a Rational Connection between Facts Found and

Choices Made…………………………………………………………………………………………………20

1. There is Insufficient Site-Specific Analysis to Support Closures. …………………… 21

2. Closures Cannot be Rationally Based Upon Generalized User Conflict. …………. 23

3. The Decision Improperly Restricts Access to Rico. ……………………………………… 26

4. Excluding Public Access is Not a Rational Livestock Management Tool. ………. 33

C. The Service Failed to Adequately Present and Respond to Comments. ………………….35

D. The Decision Fails to Properly Address Route Decommissioning. ………………………..37

V. CONCLUSION ……………………………………………………………………………………………………….. 41

CERTIFICATE OF COMPLIANCE ……………………………………………………………………………….. 42

CERTIFICATE OF SERVICE ……………………………………………………………………………………….. 42

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TABLE OF AUTHORITIES

CASES

Backcountry Hunters & Anglers v. U.S. Forest Service,

Case No. 11-cv-3139-MSK (D. Colo.), 612 Fed. Appx. 934 (10th Cir. 2015). ……………….. 5, 12

Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983) ……………………………………………………. 8

Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996) ……………………………… 25

Biodiversity Conservation Alliance v. U.S. Forest Service,

765 F.3d 1264 (10th Cir. 2014) ……………………………………………………………………………………… 9

Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169 (10th Cir. 2008) …………………. 7

Ctr. for Sierra Nevada Conservation v. U.S. Forest Service,

832 F.Supp.2d 1138 (E.D. Cal. 2011)…………………………………………………………………………….. 9

Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002). ………………………………………………………………… 7

Envtl. Defense v. U.S. Army Corps of Eng’rs, 515 F.Supp.2d 69 (D. D.C. 2007)…………………… 21

Forest Guardians v. U.S. Fish and Wildlife Service, 611 F.3d 692 (10th Cir. 2010) …………………. 8

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) …………….. 20

Great Basin Resource Watch v. BLM, 844 F.3d 1095 (9th Cir. 2016) …………………………………… 21

Hells Canyon Alliance v. U.S. Forest Service, 227 F.3d 1170 (9th Cir. 2000) ……………………….. 25

High Country Conservation Advocates v. U.S. Forest Service,

333 F.Supp. 3d 1107 (D. Colo. 2018) …………………………………………………………………………… 20

Idaho Conservation League v. Guzman, 766 F.Supp.2d 1056 (D. Idaho 2011) ……………………… 16

Lujan v. National Wildlife Fedn., 497 U.S. 871 (1990) ………………………………………………………… 6

Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) …………………………. 25

Mid States Coalition for Progress v. Surface Transportation Board,

345 F.3d 520 (8th Cir. 2003) ……………………………………………………………………………………….. 35

Motor Vehicle Mfrs. Ass’n. v. State Farm Mutual Automobile Ins. Co.,

463 U.S. 29 (1983) ……………………………………………………………………………………………. 7, 21, 32

New Mexico ex. rel. Richardson v. BLM, 565 F.3d 683 (10th Cir. 2009) ………………………………… 8

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New Mexico Off-Highway Vehicle Alliance v. U.S. Forest Service,

645 Fed.Appx. 795(10th Cir. 2016). ……………………………………………………………………………… 20

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994). ………………………………….. 7

Pryors Coalition v. Weldon,

803 F.Supp.2d 1184 (D. Mont. 2011), aff’d, 551 Fed. Appx. 426 (9th Cir. 2014) …………………. 9

Riverhawks v. Zepeda, 228 F.Supp.2d 1173 (D. Or. 2002) …………………………………………………. 25

Sierra Club v. U.S. Army Corps of Eng’rs, 701 F.2d 1011 (2d Cir. 1983) …………………………….. 29

Sierra Nevada Forest Protection Campaign v. Tippin,

2006 U.S. Dist. LEXIS 99458 (E.D. Cal. 2006) …………………………………………………………….. 21

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ………………………………………………………….. 20

SUWA v. Palma, 707 F.3d 1143 (10th Cir. 2013) ……………………………………………………………….. 20

Trustees for Alaska v. Hodel, 806 F.2d 1378 (9th Cir. 1986) ……………………………………………….. 35

Utah Envtl. Congress v. Bosworth,

2003 U.S. Dist. LEXIS 25577, rev’d on other grounds, 372 F.3d 1219 (10th Cir. 2004) …….. 35

Wild Wilderness v. Allen, 871 F.3d 719 (9th Cir. 2017) ………………………………………………………. 25

Wildwest Institute v. Bull, 547 F.3d 1162 (9th Cir. 2008) ……………………………………………………. 35

STATUTES

5 U.S.C. § 551 ………………………………………………………………………………………………………………… 6

5 U.S.C. § 702 ………………………………………………………………………………………………………………… 6

5 U.S.C. § 704 ………………………………………………………………………………………………………………… 6

5 U.S.C. § 706(2) ……………………………………………………………………………………………………………. 6

16 U.S.C. § 1600 …………………………………………………………………………………………………………….. 6

42 U.S.C. § 4331 …………………………………………………………………………………………………………….. 6

42 U.S.C. § 4332 …………………………………………………………………………………………………………….. 8

OTHER AUTHORITIES

36 C.F.R. § 212.1 ………………………………………………………………………………………………………….. 11

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36 C.F.R. § 212.55(a)………………………………………………………………………………………………………. 9

36 C.F.R. § 212.55(b) ………………………………………………………………………………………………… 9, 25

36 C.F.R. part 212 ……………………………………………………………………………………………………….. 6, 8

36 C.F.R. § 218.11(b)(2) ………………………………………………………………………………………………… 15

36 C.F.R. part 218 …………………………………………………………………………………………………………. 14

40 C.F.R. § 1500.1 ………………………………………………………………………………………………………….. 7

40 C.F.R. § 1502.24 ………………………………………………………………………………………………………. 21

40 C.F.R. § 1503.4 ………………………………………………………………………………………………………… 35

40 C.F.R. § 1508.14 ………………………………………………………………………………………………………… 8

70 Fed.Reg. 68264-68291 (Nov. 9, 2005) …………………………………………………………………. 8, 9, 11

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I. INTRODUCTION

These consolidated matters address U.S. Forest Service planning and management of

recreational access. The final agency action under review is the Rico West Dolores Roads and

Trails (Travel Management) Project Final Record of Decision, Environmental Impact Statement

and associated actions issued by the Dolores Ranger District, San Juan National Forest on July

30, 2018 (collectively, the “Decision”). Petitioners in the lead case (No. 18-cv-02354) Trails

Preservation Alliance, San Juan Trail Riders, and Public Access Preservation Association

(collectively “Trail Riders”) are nonprofit organizations consisting primarily of members who

enjoy and advocate for motorcycle trail access. Petitioners in the companion case (No. 18-cv-

02903) are nonprofit preservation organizations and a privately owned ecotourism resort.

The Rico West Dolores roads and trails have received motorized vehicle travel for

decades. The location and nature of that motorized access have become regularly and

increasingly scrutinized. Through this scrutiny, improved equipment and better management

practices, motorcycle travel on designated trails has long been environmentally sustainable and

recognized as one of a spectrum of appropriate multiple uses of the area. The Forest Service

previously restricted motorized access in 2009, and that effort and the validity of ongoing

motorized travel was challenged and upheld in this Court, and eventually the Tenth Circuit, in

Backcountry Hunters and Anglers, Colorado Chapter v. U.S. Forest Service, Case No. 11-cv-

3139-MSK (D. Colo.), 612 Fed. Appx. 934 (10th Cir. 2015).

Following its successful defense of the foregoing litigation, the Forest Service undertook

further planning culminating in the Decision. The Decision imposed significant new restrictions

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on motorized travel. The Decision eliminated motorcycle trail access to the Town of Rico. The

Decision reduced available motorcycle trail mileage by over 30 percent, reduced the season of

use, eliminated key routes, and disrupted long-established loops and trail connectivity. These

substantial but ill-chosen reductions unnecessarily eliminate access, will threaten adverse

environmental impacts, create crowding and increase public safety risks by redirecting and

concentrating motorized travel. Unfortunately, these actions ignore logic, disserve sound policy

and violate the law.

The Trail Riders faced little option but to challenge the Decision’s restrictions through

this action. The Court should declare unlawful and vacate the Decision, and remand this matter

to the Forest Service for further analysis.

II. LEGAL FRAMEWORK

The Trail Riders challenge the Decision under various authorities including the National

Environmental Policy Act, 42 U.S.C. § 4331, et seq. (“NEPA”); the National Forest

Management Act, 16 U.S.C. § 1600 et seq. (“NFMA”) and associated Forest Service Travel

Management Rule, 36 C.F.R. part 212; and the Administrative Procedure Act, 5 U.S.C. § 551, et

seq. (the “APA”).

A. Administrative Procedure Act.

The APA provides the applicable waiver of the United States’ sovereign immunity here

for those aggrieved by “final agency action.” 5 U.S.C. §§ 702, 704; Lujan v. National Wildlife

Fedn., 497 U.S. 871, 882 (1990). APA section 706(2) provides the standard of review: a

reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions

found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

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with law; [or] (C) short of statutory right; [or] (E) unsupported by substantial evidence….” This

standard of review is “narrow” but the agency:

must examine the relevant data and articulate a satisfactory explanation for its

action including a rational connection between the facts found and the choice

made….Normally, an agency rule would be arbitrary and capricious if the agency

has relied on factors which Congress has not intended it to consider, entirely

failed to consider an important aspect of the problem, offered an explanation for

its decision that runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in view or the product of

agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)

(citations omitted). This review focuses on adherence to procedure and the rationality of the

agency process, not the wisdom of the agency’s decision. Olenhouse v. Commodity Credit

Corp., 42 F.3d 1560, 1575 (10th Cir. 1994). Still, the Court may affirm the agency’s decision

solely “on the ground articulated by the agency itself” and post hoc “rationalization by counsel in

briefs or argument will not cure noncompliance….” Id. at 1565, 1575. The Court will not weigh

evidence or question the agency’s choice of methodology, but any deference to the agency is

reduced if the record demonstrates that the agency has “prejudged” the issues. Davis v. Mineta,

302 F.3d 1104, 1112 (10th Cir. 2002).

B. National Environmental Policy Act.

NEPA represents “our basic national charter for protection of the environment.” 40

C.F.R. § 1500.1. NEPA does not impose substantive requirements, but creates a series of

procedures designed to disclose and analyze potential environmental effects of proposed federal

actions. See, generally, Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1177-

1178 (10th Cir. 2008) Central among these is the requirement that major federal actions which

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have the potential of a significant effect be preceded by an environmental impact statement

(“EIS”) for public review and comment. 42 U.S.C. § 4332. NEPA’s protections of the

“environment” refer to the “human environment” which “shall be interpreted comprehensively to

include the natural and physical environment and the relationship of people with that

environment.” 40 C.F.R. § 1508.14. Thus, the agency’s duty to analyze impacts does not end

with impacts to the physical environment, because “[w]hen an [EIS] is prepared and economic or

social and natural or physical environmental effects are interrelated, then the [EIS] will discuss

all of these effects on the human environment.” Id.

NEPA procedures are designed to advance “twin aims” of “consider[ing] every

significant aspect of the environmental impact of a proposed action” and “ensur[ing] that the

agency will inform the public that it has indeed considered environmental concerns in it

decisionmaking process.” Forest Guardians v. U.S. Fish and Wildlife Service, 611 F.3d 692,

711 (10th Cir. 2010) (quoting Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983)); New

Mexico ex. rel. Richardson v. BLM, 565 F.3d 683, 703 (10th Cir. 2009) (NEPA focus[es] both

agency and public attention” and “facilitates informed decisionmaking by agencies and allows

the political process to check those decisions”).

C. Travel Management Rule.

On November 9, 2005, the Forest Service published a Final Rule entitled “Travel

Management; Designated Routes and Areas for Motor Vehicle Use.” 70 Fed.Reg. 68264-68291

(Nov. 9, 2005) (the “Travel Management Rule”). The Travel Management Rule was

promulgated in accordance with notice-and-comment rulemaking procedures of the APA and

therefore carries force and effect of law. The 2005 Rule is codified at 36 C.F.R. part 212,

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subparts B and C.1 The Travel Management Rule generally “requires designation of those roads,

trails and areas that are open to motor vehicle use…and will prohibit the use of motor vehicles

off the designated system, as well as use of motor vehicles on routes and in areas that is not

consistent with the designations.” 70 Fed.Reg. 68264 (Nov. 9, 2005).

The Travel Management Rule requires the agency to apply “general criteria” when

designating roads, trails and areas for vehicle use, which include effects on 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 maintenance and administration. 36 C.F.R.

§ 212.55(a). The Rule further includes “specific criteria” which must be considered “with the

objective of minimizing” effects on specified resources including soils, watersheds, wildlife and

associated habitats and conflicts between vehicle and other uses and within vehicle use types. Id.

at (b). The eventual designations are disclosed and analyzed in a public planning process, with

the final product being published in a decision document and displayed on a Motor Vehicle Use

Map to govern future travel in the project area. See, generally, Biodiversity Conservation

Alliance v. U.S. Forest Service, 765 F.3d 1264 (10th Cir. 2014); Pryors Coalition v. Weldon, 803

F.Supp.2d 1184 (D. Mont. 2011), aff’d, 551 Fed. Appx. 426 (9th Cir. 2014); Ctr. for Sierra

Nevada Conservation v. U.S. Forest Service, 832 F.Supp.2d 1138 (E.D. Cal. 2011). Travel

management can present unique challenges “where the agency must comply with a multitude of

obligations, many of which pull the agency in competing directions….” Ctr. for Sierra Nevada

Conservation, 832 F.Supp.2d at 1149.

1 Subpart C addresses “over-snow vehicle” use which was not considered in the Decision.

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III. STATEMENT OF FACTS

The pertinent facts are either admitted or contained within the administrative record.

A. The Project Area and Background.

The San Juan Forest includes about 1.8 million acres located in southwestern Colorado.

The Rico West Dolores analysis area is located with the Forest’s Dolores Ranger District, and

contains approximately 244,554 acres of National Forest system lands and 11,702 non-Forest

Service lands (the “Area”). Trail Riders’ Petition (ECF 1) and Answer (ECF 18) at ¶¶ 25

(admitted). The Area includes mesas, aspen stands, steep slopes of dense conifers, and snowcovered

peaks and is bisected by Highway 145, which follows the Dolores River. Id. at ¶¶ 26.

The west side of the Area is bordered by private land and the Boggy-Glade travel management

area, the north side includes a portion of the Lizard Head Wilderness, and the east side of the

Area is the spine of the La Plata Mountains, and the Colorado Trail (a statewide non-motorized

trail). Id. Communities within and nearby the Area include Cortez, Dolores, Dove Creek, the

Town of Rico, and Telluride. Id. A general view of the Forest including the Area is found in the

Forest Plan. AR 0775.2 A narrower view of the Dolores Ranger District is found in the Travel

Analysis Process. AR 2602. The Decision documents contain various maps focusing on the

roads and trails within the Area. AR 5761-5767.

The roads and trails in the Area often developed along historic pathways originally

created for mining or domestic livestock grazing. Trail Riders’ Petition (ECF 1) and Answer

(ECF 18) at ¶¶ 27 (admitted). This network was expanded to include roads constructed to access

2 The administrative record is Bates stamped, so citations to the record are as follows: AR-

[Bates stamped page number] ([description of document, if applicable]).

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timber sales in spruce, fir and aspen forest types. Id. Modern use of the Area still includes uses

like mining, livestock grazing, and timber, as well as increasing and diverse forms of recreation.

Id. at ¶¶ 28 (admitted). Like nearly all of western Colorado, the area includes popular big game

hunting areas, with an assortment of seasons for different species and weapon types. Id. Also

popular is vehicle-based recreation using motorcycles, all-terrain vehicles, utility vehicles and

jeeps, which in Forest Service parlance are collectively referred to as “off-highway vehicles.” 36

C.F.R. § 212.1 (defining “off-highway vehicle” as “[a]ny motor vehicle designed for or capable

of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland,

or other natural terrain”).

Motor vehicle travel on the National Forest System was long conducted on an “open

unless designated closed” policy, which allowed for at least a theoretical and legal possibility of

cross-country travel. Despite this possibility, topography, vegetation and other factors caused

vehicle riders to travel along the network of established roads and trails in the Area. These

routes are depicted on various maps going back decades. AR 5546 (describing maps as early

1971 showing “use by motorcycles on ‘single-track’ trails”). More recently, and certainly after

passage of NFMA in 1976, management of the San Juan National Forest became increasingly

formalized. The 1983 Forest Plan included travel management elements, including adoption of a

1994 Travel Management Map. AR 2564. In 1999, a Closure Order restricted on-trail travel to

those motorized uses permitted on the 1994 Map. These actions tended to formalize the

historical use patterns and motorcycle travel limited to existing trails in the Area.

The trend toward more intensive travel management solidified with adoption of the

agency-wide Forest Service Travel Management Rule on November 9, 2005. 70 Fed.Reg.

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68264-68291 (Nov. 9, 2005). The Rule signified a shift to designation of roads, trails and areas

for motorized vehicle travel. Outside the prescribed travel on these roads, trails, and areas,

motor vehicle travel would be prohibited. AR 5549-5550 (discussing Rule within the project

Purpose and Need statement). The Forest undertook efforts to implement the Rule and adopt

new travel management decisions. The Dolores Ranger District decided to complete three

separate decisions to address each of its identified “travel management landscapes” – the Area,

the Mancos Cortez area, and the Boggy Glade area. AR 2599-2600; AR 4808 (depicting

“landscape motorcycle routes”).

The planning process for the Area culminated in a 2009 Decision Notice, which

prohibited cross-country motorized travel and designated specific routes for motorized and nonmotorized

travel. Various parties filed administrative appeals, and the reviewing officer

recommended reversal, including on the grounds that a more rigorous Environmental Impact

Statement should have been prepared. AR 2565-2569; AR 2570-2571 (Decision adopting

recommendation). The Forest Supervisor in 2010 followed this recommendation, reversed the

Decision and vacated the new trail designations, but issued an interim order closing the Area to

cross-country motorized travel. AR 2572-2573. One of the appellants, Backcountry Hunters and

Anglers, Colorado Chapter, filed a lawsuit in 2011 asking the Court to declare the 2010

“decision” unlawful and/or issue an injunction prohibiting motorized use of 14 trails in the Area.

That case wound its way through this Court and the Tenth Circuit, with the Forest Service (and

Intervenors including the Trail Riders) prevailing throughout. See, Backcountry Hunters &

Anglers v. U.S. Forest Service, 612 Fed. Appx. 934 (10th Cir. 2015). However, part of the

management scheme outlined by the 2010 “temporary” order included the Forest Service’s

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intention to devise “a more permanent replacement policy” to govern motorized vehicle travel in

the Area.

B. Chronology of the Travel Management Project.

The Rico West Dolores Travel Management Project represents the “more permanent

replacement policy” to designate roads, trails and areas for motorized use in the Area. Trail

Riders’ Petition (ECF 1) and Answer (ECF 18) at ¶¶ 37 (admitted). The Project was formally

initiated in December 2014 with publication of a proposed action. Id. A Draft Environmental

Impact Statement (“DEIS”) was released for public comment on May 6, 2016. Id. at ¶¶ 38; AR

5530-5531 (cover letter). A Supplemental Draft Environmental Impact Statement (“SDEIS”)

was published on July 7, 2017. AR 7866-7873 (cover letter and summary). Approximately

1,100 letters, emails or phone logs were received in response to the DEIS and SDEIS. The Trail

Riders submitted written comments. Trail Riders’ Petition (ECF 1) and Answer (ECF 18) at ¶¶

43 (admitted).

The DEIS and SDEIS each outlined five (5) alternatives to be considered in detail. AR

5535-5536; AR 5557 (DEIS); AR 7866 (explaining that “procedural clarification” addressed in

SDEIS “does not require any changes to the five alternatives presented in the original Draft

EIS”). In general terms, Alternative A was the legally-required “no action” alternative intended

to outline the pre-decisional existing condition. AR 5557. Alternative B was the “proposed

action” which was described as the December 2014 proposed action “with refinements.” Id.

Alternative C would “reestablish motorcycle use on some, but not all, of the trails that would be

closed to motorcycle use under Alternative B.” Id. Alternative D would provide a motorcycle

trail system similar to Alternative C but would reduce motorcycle riding and focus on a

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“semiprimitive nonmotorized recreation setting” in the Bear Creek drainage. Id. Alternative E

would be similar to Alternative D, but extend the “semiprimitive nonmotorized recreation

setting” to North Calico Trail and connecting trails. Id. In terms of trail mileage for motorcycle

use, the DEIS/SDEIS alternatives covered the following range:

Alternative A B C D E

Miles Designated

Open to Motorcycles 114 86 100 88 65

AR 5559 (Table 2-1).

Another important plan component was seasonal timing restrictions, defining times

during which trails would be open/closed to motorcycle travel. Under the “no action”

Alternative A, there would be no timing restrictions. AR 5562 (Table 2-3). Under Alternative

B, trails would be open for motorcycle travel from July 1 to September 8, and closed from

September 9 to June 30. Id. Under Alternatives C, D and E trails would be open for motorcycle

travel from June 1 to October 30, and closed from November 1 to May 30. Id.

A Draft Record of Decision (“Draft ROD”) and Final Environmental Impact Statement

(“FEIS”) were issued on November 14, 2017. AR 10658-10763. The Draft ROD proposed

adoption of Alternative B Modified. AR 10669. The Draft ROD identified a minimum road

system, created a new designation on 19 miles of trails in the Black Mesa area for motorized

vehicles up to 62 inches in width, designated 83 miles of trail for motorcycle use, and adopted

seasonal restrictions allowing motorcycles on designated trails from June 1 to October 30, with

motorcycle use prohibited from November 1 to May 31. AR 10668-10671.

Under applicable regulations at 36 C.F.R. part 218, the Draft ROD was subject to a

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“predecisional administrative review” through “objection” within 45 days. Twenty (20)

objections letters from 14 unique objectors were presented to the Draft ROD. Trail Riders’

Petition (ECF 1) and Answer (ECF 18) at ¶¶ 46 (admitted). These objections were considered by

an Objection Reviewing Officer within the Forest Service Rocky Mountain Region office. Id.

Extensive efforts were made to explore “resolution” of the objections, which included telephonic

meetings on February 22, March 7 and March 16 of 2018, as well as the exchange of written

proposals between some of the objectors and the Forest Service. Id. at ¶¶ 47; AR 10309-10547.

A resolution was not reached. Id. Upon concluding that a resolution would not be reached, the

Reviewing Officer issued a formal written response to the objections dated April 4, 2018

(“Objection Response”). AR 10548-10586 (individually addressed letters to objectors); AR

10587-10657. The Objection Response constitutes the final administrative determination of the

Department of Agriculture. AR 10585-10586 (citing 36 C.F.R. § 218.11(b)(2)).

The Dolores Ranger District issued a Final Record of Decision dated July 30, 2018

(“Final ROD”). AR 10765-10889. The Final ROD tracked the Draft ROD, with two additional

modifications. AR 10777. First, motorcycle use was prohibited on the entire East Fall Creek

Trail, extending this closure to include a one-half mile section that had been proposed for

continuing motorcycle use in the Draft ROD. Id. Additionally, a dual designation for Forest

Service Road 692A was added to allow for motorcycle use, contingent upon approval in a

separate analysis of a new motorcycle trail named Spring Creek Extension that would connect to

the end of Road 692A. AR 10778.

C. Trails at Issue and Nature of Recreational Travel in the Area.

It is important in analyzing the Decision to appreciate the nature of recreational access to

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the Area, its network of trails and the connectivity between these trails and the adjacent

landscapes outside the Area. Many Forest Service travel plan cases involve an entire Forest and

a daunting array of road/trail configurations. See, e.g., Idaho Conservation League v. Guzman,

766 F.Supp.2d 1056, 1069 (D. Idaho 2011) (describing Salmon-Challis Forest Travel Plan,

where action alternatives ranged from 2,905 miles to 4,351 miles of motorized routes). The

Area has a much more modest route network which is far easier to understand, particularly given

the primary focus here on motorcycle travel. The agency has in several instances summarized

these motorcycle trails in a table. AR 5559-5561 (DEIS summarizing trail prescriptions by

alternative); AR 10823-10824 (Final ROD, Attachment 2 summarizing trail designations). The

location and interrelation of these trails is enhanced by viewing them on a map. AR 5715 (DEIS

showing “no action” Alternative A or predecisional status); AR 10846 (Final ROD with final

designations).

The Trail Riders have emphasized certain key elements of this network. This input fits

within the subarea discussions used by the Service to organize the analysis. See, e.g., AR 5566-

5580 (DEIS discussion of alternatives for nine (9) subareas).3 Starting at the northern end of the

Area, Subarea 2 contains the Calico North, Winter, West Fall Creek and East Fall Creek Trails.

The Calico Trail is central feature running north-south through the Area, and the Winter and Fall

Creeks trails have historically provided important loop riding opportunities in this area. AR

3 The Trail Riders’ concerns focus on a handful of key trails. The Trail Riders are

certainly concerned about the overall health and effective management of the entire Forest. The

Trail Riders also appreciate and on some occasions address management issues involving other

types of vehicles or nonmotorized access, but their focus in this litigation is on single-track

motorcycle trail designations. As a result, the Trail Riders’ focus in the Area designations is on

subareas 2, 3, 4, 6, 8 and 9.

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4062.4 This is also a focal area for nonmotorized recreationists, given its proximity to the Lizard

Head Wilderness and the Dunton Hot Springs Resort, a privately owned “ecotourism resort”

operated under various special use permits with the Service. Id.; AR 2764-2766 (Proposed

Action (“PA”)). The Trail Riders recommended that the previously authorized routes remain

available for motorized travel, but that a new Winter Trail route be designated solely for

nonmotorized access, to create “a win for both motorized and non-motorized users.” AR 4062.

Subarea 3 is in the southwestern part of the Area, where the focus for the Trail Riders

was to designate the Loading Pen Trail for motorcycle use and to retain and extend the

motorcycle route on Spring Creek, to provide for loop riding on desirable trails and connectivity

to trails outside the southern boundary of the Area. AR 4063 (SJTR); AR 2767-2769 (PA).

Subarea 4 lies to the east of Subarea 3, and includes the South Calico Trail and key connections

eastward, most notably via the Wildcat and/or Tenderfoot Trails. AR 4064 (SJTR); AR 2770-

2772 (PA). Access along Wildcat Trail would work in concert with the Subarea 8 Ryman Creek

Trail, such that Wildcat extends to the west of Highway 145 and provides ingress/egress to

Calico Trail along the ridgeline, while “Ryman Trail is needed as a cross-over route from the

East that connects to the Hermosa drainage.” AR 4064 (SJTR); AR 2785-2787 (PA).

Subarea 6 focuses on the Town of Rico, and portions of the Burnett Creek and Horse

Creek trails that provide connection between the Town and the motorcycle trail network. Aside

from these trails, motorized vehicle access to Rico is provided solely by Highway 145. The Trail

4 The Trail Riders’ input is largely summarized through the San Juan Trail Riders’

comments, but similar comments were also presented by Public Access Preservation

Association. See, AR 4017-4021.

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Riders objected from the outset to the proposed closures of Burnett Creek and Horse Creek

Trails “to completely isolate single-track motorized recreation from the town of Rico.” AR 4020

(PAPA); see also, AR 4066 (SJTR); AR 2777-2780 (PA) (“emphasize non-motorized recreation

modes in order to emphasize the community’s quiet-use character”).

Finally, Subarea 9 involves the Bear Creek drainage, which offers prized opportunities

for diverse activities. Aside from the unique setting, routes in the Bear Creek drainage provide

key connections for motorcycle riders between the Area and the Mancos/Cortez landscape to the

south. Even in scoping, the Trail Riders recognized that some reductions in historical

motorcycle access were likely in Bear Creek, but expressed a willingness to support such

changes through designation of comparable trail miles elsewhere. AR 4066 (SJTR); AR 2788-

2791 (PA) (outlining key considerations including “balancing desired recreation experiences”

and “providing connections for motorcycles”).

D. General Overview of Travel Plan Restrictions.

The Final ROD imposes a series of significant restrictions on motorcycle travel:

(a) motorcycle travel was prohibited on Winter, West Fall and East Fall Creek Trails

(AR 10784), in the vicinity of the private Dunton Hot Springs Resort, which perhaps not

coincidentally facilitates a non-motorized loop trail experience directly from the Resort property,

in addition to the abundance of similar opportunity accessible by a short drive (or hike) to the

Lizard Head Wilderness;

(b) Motorcycle travel was reduced by roughly 85 percent in the Bear Creek drainage

as requested by special use interests and a few seasonal residents, leaving only a “pass through”

connection between Grindstone and Gold Run Trails and along 1.72 miles near the middle of the

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Bear Creek Trail (AR 10792-10793);

(c) Motorcycle trail connection to the Town of Rico was eliminated, through closure

of the Burnett Creek and Horse Creek Trails (AR 10789-10780);

(d) Motorcycle travel was prohibited on Ryman Creek Trail (AR 10792), which was

a desirable 5 mile trail segment providing important connectivity for riders in the Telluride area

and to adjacent trail systems in the Hermosa area;

(e) Motorcycle travel was eliminated from the Spring Creek (AR 10785) and Wildcat

Trails (AR 10787);

(f) Motorcycle travel on designated trails can only occur from June 1 to October 30,

and is prohibited from November 1 to May 31 (AR 10780-10781).

The Final ROD designates a total of 84 miles of trail for motorcycle use, down from 114

miles authorized for travel prior to the Decision. AR 10778 (Table 1). Aside from the arithmetic

reduction of mileage, the changes greatly impact the connectivity, ability to ride loops, aesthetic

experience, and safety for motorcycle riders in the Area. The Trail Riders therefore filed this

action on September 14, 2018.

IV. ARGUMENT

The Decision makes dramatic, unnecessary and unjustified changes to a long existing and

sustainable trails network. The Court should declare the Decision unlawful, vacate the Decision,

and remand this matter to the agency for further proceedings.

A. The Trail Riders Meet Standing Requirements.

The Trail Riders initiated this action for judicial review and it is therefore “incumbent on

[them] to demonstrate the elements of standing.” New Mexico Off-Highway Vehicle Alliance v.

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U.S. Forest Service, 645 Fed.Appx. 795, 801 (10th Cir. 2016). To demonstrate standing “a

plaintiff must show:

(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and (3) it is likely, as opposed

to merely speculative, that the injury will be redressed by a favorable decision.”

SUWA v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013) (quoting Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-181 (2000)). In the National Forest

management setting, an “injury” is sufficient which “in fact affects the recreational or even the

mere esthetic interests of the plaintiff….” Summers v. Earth Island Inst., 555 U.S. 488, 494

(2009). An organization can assert the standing of its members. Id. The Trail Groups have

submitted declarations of Don Riggle and Allen Christy, which amply satisfy all of these

requirements, for the declarants and members of the organizations. See, e.g., High Country

Conservation Advocates v. U.S. Forest Service, 333 F.Supp. 3d 1107, 1117-1118 (D. Colo.

2018). The Decision prevents the present and planned future motorcycle access by Petitioners’

members to specific trails in the Area, causing concrete but redressable harm to their recreational

and aesthetic interests. There should be little dispute that Petitioners have demonstrated

standing.

B. The Decision Fails to Consider Important Aspects of the Project and Fails to

Articulate a Rational Connection between Facts Found and Choices Made.

The Travel Management Rule provides for broad discretion in the designation process,

the agency must still carry out that role in a manner that explains and justifies its route-by-route

conclusions to the public and a reviewing court.

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1. There is Insufficient Site-Specific Analysis to Support Closures.

The Decision advances a suite of management choices to address a range of purported

management needs. However rational this analysis might be on some site or with further

documentation, the critical linkage is missing here between any facts found, analysis performed

and management choices made.

The Decision employs a narrative style that fails to meet applicable requirements for

presentation of technical conclusions. Under even “arbitrary and capricious” review the agency

must articulate a “rational connection between the facts found and the choice made….” Motor

Vehicle Mfrs. Ass’n., 463 U.S. at 43. NEPA imposes various technical protocols including

disclosure of methods, presentation of hard data, and disclosure of any “sources relied upon for

conclusions” in an EIS. 40 C.F.R. § 1502.24. NEPA does not envision undocumented narrative

exposition, but requires that “[a]gencies shall insure the professional integrity, including the

scientific integrity, of the discussions and analyses in environmental impact statements.” Id.;

Sierra Nevada Forest Protection Campaign v. Tippin, 2006 U.S. Dist. LEXIS 99458 at *29

(E.D. Cal. 2006) (“NEPA does not permit an agency to rely on the conclusions [of agency

experts] without providing both supporting analysis and data”). A “bare assertion of opinion

from an [agency] expert, without any supporting reasoning, would not pass muster in an EIS.”

Great Basin Resource Watch v. BLM, 844 F.3d 1095, 1103 (9th Cir. 2016). The agency certainly

has latitude in choosing and implementing the methodology it will employ, but if a chosen “test

is used to evaluate a proposed project, NEPA requires the agency to include that test in its [EIS]”

and any such test “is therefore subject to the NEPA regulations regarding accuracy and scientific

integrity.” Envtl. Defense v. U.S. Army Corps of Eng’rs, 515 F.Supp.2d 69, 87 (D. D.C. 2007).

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The Decision does not attempt the necessary connection between specific closure (or

designation) decisions and the relevant analysis on the affected site(s). The rationales consist of

narrative discussion, devoid of anything resembling data or scientific analysis. See, e.g., AR

10785 (rationale for closing Spring Creek Trail to motorcycle travel because “the ID team was

unable, at this time, to find a route that did not result in unacceptable impacts to the ‘outstanding

waters’ designation of Spring Creek including fish habitat”); AR 10792 (discussing, but

containing no documentation or analysis of, soil “downcutting” and “positioning of soil layers”);

AR 10793 (apparently justifying Bear Creek actions “in response to many commenters who

identified Bear Creek as a unique river”).

The Decision is deficient for failing to provide data and analysis, but is further flawed in

reaching conclusions that simply contradict recent analysis of the same issues on the same trails.

Pleadings from the Backcountry Hunters & Anglers litigation are included in the record. AR

10142-10290. The agency emphatically rejected claims that existing motorcycle travel on Area

trails was causing undue conflict or resource impacts. AR 10174-10185 (Service’s preliminary

injunction brief). The agency properly noted the testimony of its wildlife biologist that deer and

elk are habitat generalists which have security areas “in which there is no OHV use” within the

Area ranging in size from 450 to 5,000 acres which “provide ‘ample habitat for deer and elk.’”

AR 10178-10179 (citing Ivan Messinger Declaration). The Trail Riders reminded the Service of

these positions in the planning process. AR 7691-7694; AR 7697-7699 (summarizing

declarations of Service leadership and specialists on issues including wildlife, fisheries,

vegetation, maintenance, and crowding/conflict). The Decision attempts to justify its change in

position, claiming these declarations “did not address all concerns associated with this analysis”

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and “were confined to a subset of the total motorized road and trail system.” AR 10772. The

agency further contends “while there was not an immediate need to prohibit motorized use on the

14 trails involved in the lawsuit, this did not mean there were not issues that needed to be

addressed for their long-term effects on a particular resource.” Id. These explanations and

qualifications do not hold up to the specific statements in the agency’s prior sworn testimony.

The narrative, informal style of the presentation and absence of meaningful hard

data/analysis are a fatal combination for the Decision. There is no way to determine what

information was relied upon or at what point the scientific analysis pointed the District Ranger to

any particular decision element. The Court should declare this approach deficient and remand

the Decision for further analysis.

2. Closures Cannot be Rationally Based Upon Generalized User Conflict.

The Decision’s analytical weaknesses are particularly acute for social “conflict.” A

primary rationale for motorcycle use restrictions is a ubiquitous finding of “user conflict.” The

Decision and underlying record do not approach the threshold to justify individual management

actions on this rationale.

Reduction of alleged conflict and enhancing a “nonmotorized experience” is the rationale

for the majority of motorized route restrictions. See, e.g., AR 10784 (Winter, East Fall and West

Fall Trail closures will provide “an emphasis on nonmotorized experiences” and “should reduce

conflicts”); AR 10789 (Burnett Creek and Horse Creek Trail closures will meet “the desires of

the Town of Rico” and “[c]onflicts will be reduced”); AR 10792 (Ryman Creek Trail closure

“will provide an additional opportunity for semiprimitive nonmotorized experiences”); AR

10793 (Bear Creek and Little Bear Creek Trail closures to enhance nonmotorized uses). The

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Trail Riders objected to reduction of undocumented conflict as the rationale for these closures.

AR 10011-10013. The Objection Response refers to “recreation conflict” literature in the

abstract, claims “[t]here is no requirement for a finding of direct conflict” but asserts that conflict

was analyzed at pages 200-207 in the FEIS. AR 10605; 10619-10620.

The referenced analysis falls short of NEPA’s standards for presentation of technical

analysis. The initial portion of the cited discussion consists of a generalized narrative or bare

assertion of opinion. AR 9383-9385. The discussion then shifts to the Area in announcing that

“[s]coping comments reveal conflicts between recreation uses under the current road and trail

system.” AR 9385. This discussion does not get beyond generalized discussion or anecdotal

observation, emphasizing comments (or conclusions) like the fact that use levels are low to

moderate, that some users move to other trails when encounter rates increase, and that motorized

trail opportunities would be enhanced by more trails/connections. AR 9386. A table is provided

that summarizes “conflicts noted by comments” for individual trails. AR 9387-9390. There is

no meaningful catalogue or analysis of the actual comments. The record includes a document

entitled “social values mentioned.” AR 4160-4164. This document only confirms the

arbitrariness of the agency’s “method.” There are no citations, no indication of source/site, or

frequency. Many of the “values” deny conflict or are supportive of shared use. AR 4160 (“PA

overstates conflict…”; “The trail system is under-utilized and conflict is low”; “Conflict between

people is overstated”); AR 4162 (“Person that rids mtn bikes, hikes and “I believe in multi-use

trails”). Relying in this way upon some nebulous presence of subjective “conflict” can hardly be

a rational connection between facts found and closure choices made.

It is debatable whether subjective comment from some unspecified commenter(s) can

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even form the basis for trail closures. The Travel Management Rule requires the agency to

“consider effects…with the objective of minimizing….(3) Conflicts between motor vehicle use

and existing or proposed recreational uses” of the Forest.” 36 C.F.R. § 212.55(b). The

regulation refers to conflicts of “use” not conflict between “users.” In the analogous

consideration of “controversy” as a NEPA intensity factor the proper focus “refers to disputes

over the size or effect of the action itself, not whether or how passionately people oppose it.”

Wild Wilderness v. Allen, 871 F.3d 719, 728 (9th Cir. 2017). The Wild Wilderness panel declined

to engage the now predictable pile of comments asserting “conflicts” and affirmed a Forest

Service decision to build a snowmobile staging area, finding that the agency sufficiently

considered comments and “we need not address the question of whether on-snow user conflicts

are outside the scope of the agency’s required NEPA analysis entirely because they are ‘citizens’

subjective experiences…not the ‘physical environment.’” Id. at 729 n.2 (citing Bicycle Trails

Council of Marin v. Babbitt, 82 F.3d 1445, 1466 (9th Cir. 1996) and Metro. Edison Co. v. People

Against Nuclear Energy, 460 U.S. 766, 772 (1983)).

Even if subjective assertion of conflict can be a basis for travel management designations,

common sense dictates there be an articulable basis for the agency’s conclusions. This topic may

not be susceptible to “hard” scientific analysis such as erosion, water quality or reproductive

success, but even social scientific subject matter is routinely analyzed through the scientific

method. Hells Canyon Alliance v. U.S. Forest Service, 227 F.3d 1170, 1182 (9th Cir. 2000)

(upholding decision based on recreation use study); Riverhawks v. Zepeda, 228 F.Supp.2d 1173,

1184 (D. Or. 2002) (discussing “user study” conducted on site noting motorized use was “cited

as a source of concern” but finding “the majority of non-motorized users nevertheless indicated a

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high degree of satisfaction”). The agency did not attempt any such analysis and does not purport

to offer site-specific analysis of conflict here. If anything, the Service here admitted futility in

attempting scientific analysis in saying “those who comment during a public comment, and those

who were interviewed for the San Juan interviews, do not constitute a random or representative

public sample. No statistical sample data exists related to the potential for conflicts between

recreation uses.” AR 9386. In justifying the decision to leave certain trails open to motorcycle

use against those proclaiming conflict, the District Ranger observed “[t]here are examples of

conflict described in public comments for all the trails with single track motorized use and these

two trails were no exception.” AR 10787 (discussing Priest Gulch and South Calico Trails).

This epitomizes arbitrary and capricious behavior – an unspecified quantum of “conflict” was

apparently presented for all the trails, with no explanation provided how the decisionmaker chose

between “open” or “closed” designations.

Conflict of use must be considered under the Travel Management Rule. Like any topic,

the agency must still engage a transparent and rational analysis, disclosing methods, data and

analysis. Even if the bar for technical analysis of social science is low, the Decision comes

nowhere close to being sufficient. The Court should advise the agency on remand to adopt and

disclose some defensible method for any treatment of conflict.

3. The Decision Improperly Restricts Access to Rico.

The Town of Rico is the only, albeit primitive, municipality within and is therefore an

important feature of the Area. The Decision eliminates motorcycle trail access to the Town of

Rico. This is flawed for two independent reasons. The purported rationale that the Town

“desires” such a closure is simply incorrect and not supported by the record. Additionally, the

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closure of trail access to Rico creates potentially significant public safety risks which the Service

has failed to disclose or analyze in violation of NEPA and the Travel Management Rule.

a. The Town of Rico did not Desire to Eliminate Motorcycle Access.

The Service claims that closure of all motorcycle trails to Rico was justified by the

“desires” of the Town of Rico. AR 10789 (“Meeting the desires of the Town of Rico and its

residents were factors in my decision to remove single track motorized use designations from the

Burnett and Horse Creek Trails.”). Like many of the “choices made” in the ROD(s), there is no

identified inflection point in the decisionmaking process or reasoned explanation of where the

switch flipped from “keep open” to “close” the affected trails to motorcycle use. Far worse in

this instance, the purported reason for closing the trails to Rico is flatly contradicted by the

record.

The Service generally discusses the situation for the Town of Rico, framing a need to

“strike[ ] a balance between concerns about motorcycle traffic on streets in the town of Rico with

the need for motorcyclists to have access to town businesses for fuel, food, or lodging.” AR

5556. The DEIS discussion is based on 2004 Rico Regional Master Plan which the Service says

“reveal[s] that residents favor quiet forms of recreation.” AR 5694. However, the same

discussion concludes that every action alternative, including those which would allow for

continuing motorcycle trail access to Rico, is “not in conflict with the Rico Regional Master

Plan.” Id.

The actual comments received reflect a changing position from “the Town of Rico.”

Initially, the Town Manager provided input on Town letterhead dated January 26, 2015

indicating that “[w]e, in the town of Rico, are generally pleased with the proposed action…” AR

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10036.5 This input specifically stated the “decision to close upper Burnett Creek and Upper

Horse Creek Trails to motorized use is very much appreciated” and expressed support for closing

Calico Trail between the intersections with the above-named routes, to create a nonmotorized

trail loop from Rico. Id. The Town’s comments on the DEIS, dated June 9, 2016, continue to

reflect this view. AR 7824-7825 (restating support for “the Burnett Creek/Horse Creek Loop as

a non-motorized trial” and strong opposition to any of the alternatives that would allow

motorized use of upper Burnett Creek Trail). However, in a comment to the SDEIS about six

weeks later, a new Town Manager provided input on Town letterhead dated July 25, 2017

advising the Town Board of Trustees “is withdrawing” the January 26, 2015 comment letter. AR

9143. The letter further expresses a “strong preference” to prohibit motorized use of Burnett

Creek Trail but allow motorized use of Horse Creek Trail as “the most appropriate point for

motorized ingress and egress between the Calico Trail and Highway 145.” Id. Private groups

purporting to represent “outdoor enthusiasts” focused on nonmotorized use also supported this

approach. AR 8433-8435 (Rico Trails Alliance comments, advocating for Horse Creek or

Wildcat as “the most appropriate point and the quickest means for motorized ingress and egress

between the Calico Trail and Highway 145”); AR 8444-8445 (Telluride Mountain Club

expressing support of same approach). Through some combination of the passage of time,

ventilation of the issues in the administrative process, or political change, the “Town of Rico”

modified its position on whether and where there should be motorcycle access to the Town.

5 The cited comments were all provided as exhibits to the Trail Riders objections. See, AR

10028-10044. The citations here are to the pages where the original comment is included, where

applicable, in the administrative record.

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While the Town’s position apparently changed, the Service’s did not. In the Proposed

Action, the Service emphasized “the community’s quiet-use character” through “discouraging

motorcycle use from Forest trails into the Town” with closure of Burnett and Horse Creek Trails

to motorcycle use. AR 2777-2778. In the Draft ROD, the District Ranger first penned the

conclusion that “[m]eeting the desires of the Town of Rico and its residents were factors in my

decision to remove single track motorized use designations from the Burnett Creek and Horse

Creek Trails.” AR 10680. Again, the Draft ROD was released in November of 2017, roughly

four months after the Town Manager and Board of Trustees expressed support for continuing

motorized access via Horse Creek or Wildcat Trails. Those “desires” were ignored and the

above-quoted sentence is included verbatim in the Final ROD. AR 10789. Indeed, the Court has

ample basis to find “that the EIS sets forth statements that are materially false or inaccurate” and

on that basis “may properly find that the EIS does not satisfy the requirements of NEPA.” Sierra

Club v. U.S. Army Corps of Eng’rs, 701 F.2d 1011, 1030 (2d Cir. 1983)

There is not a rational connection between the undisputed documents in the record and

the District Ranger’s assertion that the Town of Rico “desired” to eliminate motorcycle trail

access to Rico. Whatever significance the Town’s desire might have in the ultimate management

decision, it cannot provide a defensible basis for eliminating motorcycle travel on Burnett Creek,

Horse Creek and Wildcat Trails.

b. The Decision Fails to Address Public Safety Risks.

The Service not only misrepresented the Town’s desire, but also failed to properly

disclose or consider the safety risks associated with eliminating motorcycle trail access to Rico

and displacing any possible access to a paved highway. The Decision acknowledges that Rico

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has “value” for emergency services, fuel, lodging, and other visitor services. AR 5556

(acknowledging “the need for motorcyclists to have access to town businesses for fuel, food, or

lodging”); AR 10789 (recognizing the Town is “valued as a gas stop and this access remains in

place via Hwy 145”). The Decision is seriously flawed in this respect. Eliminating motorcycle

trail access to Rico creates unjustified risk and complicates access from the Calico crest for

riders who need the support or resources available in the Town. Additionally, the Decision fails

analyze or justify the risks causes by displacing all motorcycle access to the Town onto Highway

145.

The Decision itself contains virtually no discussion of these concerns. Regarding travel

on Highway 145, the Decision blithely concludes that that access remains “via Hwy 145”

without even considering the nature or volume of this traffic or the extent to which trail

motorcycles should be sharing a highway with full sized vehicles. AR 10789. Regarding the

function of the Town as a resource/refuge for riders along the Calico “ridgeline” the Decision

admits that options “to exit the ridge to the east would not exist but there are multiple options to

exit the ridge on the west side….” Id. However, this choice is unresponsive to the presented

need to address riders facing “bad weather or mechanical trouble.” Id. The point is that riders in

these situations, or even more so those in medical need, require access to Rico, not simply to

“exit the ridge.” The Decision contains nothing resembling analysis to which the Court can

defer.

The Objection Response contains additional discussion. It begins by recognizing that

public safety is a consideration in designation of motorized vehicle routes. AR 10593. The

discussion simply repeats the above-quoted, conclusory language from the ROD(s). Id. The

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Objection Response additionally asserts the “FEIS discusses safety in the context of mixed use

on roads and trails” citing to specific pages (pp. 214-225 and 262-263) in the FEIS. Id. It

concludes that the “the roads under review could be designated for motorized mixed use without

increasing the safety risk to the public.” Id.

The Objection Response does not adequately address any safety concerns. The

referenced portions of the FEIS don’t pertain to risks associated with highway travel. The

discussion starting at page 214 of the FEIS is entitled “trail safety” and primarily addresses travel

on the trails themselves. To the extent there is mention of Highway 145, it is identified as a

destination, e.g. the discussion is about how trail closures affect access to Highway 145, within

the network of “motorcycle connections to adjacent landscapes.” AR 9403-9405 (FEIS 220-

222). The discussion at pages 262-263 of the FEIS is not about highway use, but rather the

“Mixed Use Analysis” of National Forest System roads. AR 9445-9446. This Mixed Use

Analysis is not included in the FEIS, but is “located in the project file.” AR 9445. A document

with that title is contained in the administrative record, but it addresses only maintenance level 2

roads, and contains no mention of Highway 145. AR 4446-4472.6 The Objection Response is

thus unresponsive to the question posed, as the conclusion that “[n]o roads were identified where

a mix of licensed and unlicensed use should be prohibited” is only accurate in describing a small

subset of National Forest System roads of a certain maintenance level.

The Service failed to meet its obligation to consider public safety in making motorized

6 “Maintenance level terminology” classifies roads from Maintenance Level (“ML”) 1

(roads in storage for more than a year) to ML 5 (roads paved or chip sealed). AR 2605.

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vehicle designations. The agency seemingly acknowledges that public safety is a factor it must

consider in making designations. AR 10593. The Travel Management Rule “specific criteria”

for designating trails include “[c]onflicts among different classes of motor vehicle uses” and

“[c]ompatibility of motor vehicle use with existing conditions in populated areas, taking into

account sound, emissions, and other factors” Id. at (b)(4) and (5). Specific criteria for

designating roads require consideration of “[s]peed, volume, composition, and distribution of

traffic on roads” and “[c]ompatibility of vehicle class with road geometry and road surfacing.”

Id. at (c). The Service will presumably say that Highway 145 is outside its jurisdiction and it

therefore did not “designate” Highway 145 for motorcycle access. AR 5551 (“This project will

not apply to Hwy. 145 itself, which is managed by the State of Colorado.”). However, the

agency made designations with not only the knowledge but the intent that closure of historical

motorcycle access would displace motorcycle travel to Highway 145. See, e.g., AR 9405

(describing extent of “connections” necessitated along Highway 145 under different

alternatives). While the Decision recognizes the need for this travel, it does not disclose or

analyze the effects on the human environment. Instead, “[m]ixed use of different types of motor

vehicles on roads was not identified as an issue for this project.” AR 10593.

The Service failed to meaningfully consider effects to public safety associated with

increased motorcycle traffic on Highway 145. This is a classic instance of the agency “fail[ing]

to consider an important aspect of the problem….” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43.

On remand, the Court should instruct the Service to disclose and analyze public safety issues

caused by anticipated changes in travel patterns necessitated by the Decision.

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4. Excluding Public Access is Not a Rational Livestock Management Tool.

The Decision closes Wildcat Trail solely because the closure “is critical to minimize

conflicts with livestock herding efforts in the Wildcat Creek drainage.” AR 10787. The

Objection Response goes even further, explaining that the pasture traversed by Wildcat must

undergo “intensive management requirements” for the “specialized breed of cow” involved. AR

10633. These conclusions and the decision to eliminate long occurring public access along

Wildcat Trail are not supported by the record.

Again, the record is thin to document the agency’s drastic conclusion that closure is the

necessary option for managing Wildcat Trail. What is apparent is that the livestock grazing

permittee does not like motorcycles because “motorcycle noise is disturbing and oftentimes

motorcycles are arrogant.” AR 4110. The permittee has expressed a wide range of opinions to

the Service, including that on Burnet[t] [Creek Trail] “bikes can’t hurt this, already impacted”

and that on the Calico Trail “I don’t think noisy bikes should be in this area at all….” AR 4551.

The Decision takes the opposite action to the permittee’s suggestion on each of these routes. Nor

does the agency consider the suggested possibility of leaving “the trails as they are and limit[ing]

the number of bik[e]s [and] make them put mufflers on them.” AR 4552. Again, the agency is

arbitrarily picking which elements of this singularly-expressed view will translate to action and

which will be ignored.

The Trail Riders consulted with representatives in the ranching industry, and offered

testimony on this situation in the objection process. Brenda Richards has spent her life in the

livestock industry, operating under public land grazing permits and serving in leadership with

grazing advocacy organizations like the Public Lands Council. AR 10052. Public lands ranchers

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understand (or should understand) that “we operate within a system of ‘multiple use’

management” that necessitates they “coexist with these uses.” AR 10053. In review of the

Decision, Ms. Richards, who is familiar with “dozens, if not hundreds” of grazing decisions,

observes “I cannot recall a similar decision or application of similar logic in which a federal land

manager is closing a route/area to a particular form of public access for the ostensible benefit of

the single permittee grazing cattle in the area.” AR 10054. She concludes, “it is certainly

unusual to see ‘a specific type of livestock grazing system’ used by a federal land manager as an

excuse to close an area to motorized vehicles.” AR 10055.

Even if this apparent contradiction is resolved in favor of this particular permittee on the

Tenderfoot allotment, there is no explanation why the Service failed to consider a system which

would allow continuing motorcycle travel when cattle are not authorized to be grazing in the

affected pasture. The Decision provides limited and cryptic information on this topic, disclosing

only that the Tenderfoot allotment employs a four-pasture rotation grazing system with a season

of use from June 20 to October 15. AR 9346. However, the administrative record offers

additional information, suggesting that actual use of the affected pasture(s) is for a far shorter

time period. See, AR 4538 (2001 grazing season, Wildcat permitted use was June 10 through

July 25); AR 4542 (2005 grazing season, Wildcat permitted use was July 10 to August 26).

Even if the agency has rationally chosen to prohibit motorcycle access during cattle grazing, it

has failed to consider the possibility that access could occur when grazing is not authorized.

There is no rational basis for completely eliminating motorcycle travel along the Wildcat

Trail. The Court should declare unlawful and set aside the stated rationale and require the

Service to reevaluate use of Wildcat Trail on remand.

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C. The Service Failed to Adequately Present and Respond to Comments.

NEPA includes an explicit procedural requirement to present and respond to each

comment submitted on the DEIS/SDEIS. The Service failed to properly address these duties.

The CEQ regulations prescribe the agency’s duties in responding to comments. The

Service, in “preparing a final [EIS] shall assess and consider comments…and shall respond by

one or more of the means listed below, stating its response in the final statement.” 40 CFR §

1503.4(a). There are five “possible responses” described, all of which necessitate identification

of both the particular comment, as well as the specified response. Id. at (1)-(5). The regulations

further provide “[a]ll substantive comments received on the draft statement (or summaries

thereof where the response has been exceptionally voluminous), should be attached to the final

statement whether or not the comment is thought to merit individual discussion by the agency in

the text of the statement.” Id. at (b).

Judicial decisions confirm and illuminate these requirements. These regulations “impose

upon an agency preparing an FEIS the duty to assess, consider, and respond to all comments.”

Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520, 537 (8th Cir.

2003) (emphasis added). The agency must “consider each comment it receives and respond.”

Utah Envtl. Congress v. Bosworth, 2003 U.S. Dist. LEXIS 25577 at *22, rev’d on other grounds,

372 F.3d 1219 (10th Cir. 2004). This includes the requirement that “[t]he comments must be

included with the final EIS.” Trustees for Alaska v. Hodel, 806 F.2d 1378, 1382 (9th Cir. 1986).

A related aspect of compliance can be publication of a list identifying each commenter.

Wildwest Institute v. Bull, 547 F.3d 1162, 1170 (9th Cir. 2008). Responding to comments is not a

mere formality or a task in which “substantial compliance” might suffice, for “Congress requires

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federal agencies to comply with the policies of NEPA to the fullest extent possible.” Hodel, 806

F.2d at 1383. A core policy “is to encourage and facilitate public involvement in decisions

concerning environmental issues.” Id.

The Service’s effort here does not meet these requirements. The Trail Riders raised this

issue in their objections. AR 10018-10019. The Objection Response acknowledges the cited

regulations and concludes that the “FEIS Appendix K…contains comments received and agency

responses in compliance with 40 CFR 1503.4.” AR 10648-10649. Appendix K is located at AR

9564-9652. On initial review, it is apparent that Appendix K includes neither a list of all

commenters, nor copies of “all substantive comments.” Rather, Appendix K starts by

characterizing its contents as “[t]his comment analysis process” which provides “a map to the

responses.” AR 9564. The discussion summarizes the manner in which “all comments were

filed in the Forest Service’s Content Analysis and Response Database” and in which individual

comments “were identified within the body of comment letters” and coded. Id. In general terms,

comments were sorted into “form letters” (AR 9565-9566), recurrent topics that are summarized

and responded to (AR 9566-9605), and a table identifying the “ltr #” and text of comment with a

short response (AR 9605-9644). This approach does not allow one to know whether all the

comments were addressed, or whether one’s own comment was received and addressed. Within

this hierarchy, the middle section appears to reflect the greatest consideration by the agency, but

here the comments are apparently not published verbatim, but are summarized or paraphrased by

the agency (or a contractor) and then addressed collectively. See, e.g., AR 9575-9576

(presenting and responding to “comments” described as “Elk-1” through “Elk-4”).

The Trail Riders understand that the Service undertook significant effort in evaluating

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comments. However well-intended that effort may have been, it did not comply with the plain

requirements of the regulation. Strict compliance is required. The Court should instruct the

Service on remand to comply with NEPA’s requirements for publishing and responding to

comments.

D. The Decision Fails to Properly Address Route Decommissioning.

The Travel Management Rule provides a regulatory foundation to designate routes for

motorized travel on Forest Service lands. Additional steps, such as constructing new routes,

building bridges, or obliterating old routes, are not specifically contemplated by the Rule. Any

such additional actions that might be attempted in a travel management project would require

substantial disclosure and analysis that is not included in the Decision. The absence of this

analysis renders deficient the purported decision to decommission certain routes in the Area.

The Service has regular occasion to consider both the practices and procedures associated

with route decommissioning, and has recognized that a decision to decommission a route is

distinct from the decision not to designate the route for continuing motorized access. The agency

“may proceed to implement the Travel Management Plan, but may only effect road closures by

publishing closure orders and/or travel maps, and installing signs and gates” and “[s]ite-specific

analysis of the environmental impacts of closure methods that require surface disturbance is

required before any further action is taken.” AR 10049 (Forest Service Intermountain Region

appeal decision dated January 27, 2000). That decision makes clear the distinction between a

“travel plan” that designates specified routes for motorized travel and the separate decision(s)

“that implements the [designation] decision through initiating further ground disturbing actions,

such as earthen berms and barriers, ripping the roadbed, or other actions which will have

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potential effects on soil and water resources, other beneficial uses, and public safety….” Id.

There exist various “alternative closure actions” that might be selected on any given site” and a

proper decision must include “the necessary documentation of the site-specific effects of various

closure methods and their potential effects on soil, water, and human safety….” AR 10049-

10050.

The Service appears to consider the Decision sufficient to meet these requirements and

authorize decommissioning of numerous routes in the Area. See, AR 10670-10671 (Draft ROD

Table 1); AR 10778-10779 (Final ROD Table 1).7 These actions for the selected “Alternative

Modified B” include 7 miles of “road currently designated for motor vehicle use to be

decommissioned” and 40 miles of “currently ML1 stored roads to be decommissioned.” Id.

The ROD(s) present additional information on a route-specific basis, starting with

Attachment 2, which starts by summarizing the actions to be taken for each trail. AR 10717-

10718. Of these trails, only Lower Ryman includes the implementation action “decommission.”

AR 10718. This is supposedly further described in the subsequent table, but it only states

“[c]onsult hydrologist and restore natural water flow patterns through decommissioning efforts.”

AR 10721. The next portion of Attachment 2 has a map and description of “Calico Trail

Reconstruction” actions. AR 10724. These entries have detailed descriptions, such as at

location 9 to “[r]epair trail by rutted out seep on 10% grade by installing a culvert and hardening

20ft of trail above and below the culvert with sod block.” Id. Following that is a series of tables

identifying various actions involving roads, some of which include the action of

7 The information in Attachment 2 to the Draft ROD and the Final ROD are nearly

identical. Unless noted otherwise, this discussion cites to the Draft ROD.

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decommissioning a certain mileage of a road, but without any further information about the

location of that segment or the techniques to be utilized. AR 10725-10726 (see, e.g., Road #208

(Rio Lado) where the action is to “maintain 0.7 miles” and “decommission the remaining 0.86

miles”). Then follow tables of what appear to be ML1 “roads to be decommissioned” which

show only a road number, name and length (in miles) (AR 10728-10729) and ML2 roads to be

decommissioned. AR 10729-10730. Attachment 3 follows and consists of several pages of text

entitled “general implementation” guidance (AR 10731-10736) and a “decommissioning

implementation tree.” AR 10736-10737.

The Trail Riders argued in their objections that these efforts are deficient. AR 10021.

The Objection Response does not deny that site-specific analysis of route decommissioning is

required, but asserts that “[m]ethods and application of route decommissioning are provided in

Appendix I of the FEIS” and that “[s]ite-specific analysis for proposed decommissioning

locations was included in the travel analysis in the FEIS (Chapter 3).” AR 10618.

Appendix I offers little comfort that the Service has disclosed or analyzed the sitespecific

effects of its proposed action(s). It consists solely of the “implementation tree.” AR

9559-9560. This is not disclosure and analysis sufficient to comply with NEPA – it is a checklist

to be followed in seat-of-the-pants “field checks” by agency staff to “[d]etermine whether

ground-disturbing techniques are necessary” through “the following If-Then scenarios.” AR

9559. Some of the “Thens” purportedly within the ambit of such field analysis include

“scarifying or ripping” 12 inches or more, “ripping parallel to the contour” and “re-contouring at

drainage crossing with a dozer.” Id. The Service cannot rationally assert an “if-then” strategy at

NEPA compliance and certainly not one allowing on-site decisions by agency staff involving a

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“dozer.”

Nor does the purported analysis of decommissioning “in the travel analysis in the FEIS”

provide the necessary information to satisfy NEPA. The Objection Response does not inspire

confidence by referring in passing to an entire chapter of the FEIS rather than citing to specific

pages of the analysis. The discussion of “travel analysis” appears at FEIS pages 252-263. AR

9435-9446. The word “decommission” does occasionally appear in this discussion, but not in

any manner that can plausibly connect a particular action or decommissioning technique to

individual sites. See, e.g., AR 9442-9443 (narrative referring to a list of ML1 roads to be

decommissioned and summarizing “Decom 1” and “Decom 2” strategies, the latter including

“aggressive re-contouring action to rip and seed” which “may” include consultation with “the

hydrologist, archaeologist and ecologist”). The FEIS does not indicate which roads will be

subject to Decom 2 – that information “is located in the project file.” AR 9442.

The differing treatments of sites illuminates the distinction between what constitutes

acceptable analysis and what does not. For example, the presentation of “Calico Trail

Reconstruction” provides detailed information that allows the public to understand the specific

locations and implementation actions that are being proposed. At the other end of the spectrum

is a table simply identifying a road to be decommissioned, with no further information about

where, when or how decommissioning will occur and the attendant impacts.

Once “ripped” these routes will be unavailable for future designation for motorized

travel, or even future nonmotorized uses. That is the whole point of decommissioning, which

can be well justified for various ecological, aesthetic or management purposes. However, when

these actions will involve heavy equipment, ground disturbance and removal/replacement of

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trees/boulders they must be disclosed to the public and their effects analyzed. The Service is

either unaware of this requirement, tried to include decommissioning as an afterthought, or has

made an intentional choice to push the planning envelope. The Court should clarify the need for

site-specific analysis of heavy decommissioning actions, declare unlawful the strategy attempted

by the Decision and remand decommissioning actions for further analysis.

V. CONCLUSION

The Court should declare the Decision unlawful, vacate the Decision, and remand the

matter to the Forest Service for further analysis and subsequent agency action.

Dated: August 2, 2019.

Respectfully submitted,

/s/ Paul A. Turcke

Paul A. Turcke

MSBT Law, Chtd.

7699 West Riverside Drive

Boise, ID 83714

Telephone: (208) 331-1800

pat@msbtlaw.com

Attorneys for Trails Pres. Alliance et al.

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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing Opening Brief contains 10,369 words and

therefore complies with the 11,000 word limit for Petitioners’ opening briefs agreed upon by the

parties and established by the Court’s Joint Case Management Plan (ECF 24).

/s/ Paul A. Turcke

Paul A. Turcke

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of the Court

for the U.S. District Court for the District of Colorado through the Court’s CM/ECF system on

August 2, 2019. I certify that all participants in the cases are registered CM/ECF users and that

service will be accomplished by the Court’s CM/ECF system.

/s/ Paul A. Turcke

Paul A. Turcke

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