HomeMy WebLinkAboutco co letterMo hannam, Kathleen
From: Crump, Mike
Sent: Tuesday, December 21, 2010 4:35 PM
To: appeals-pacificsvukhwest-regional-office@fs.fed.us
Cc: Connelly, Bill; Yamaguchi, Kim; Alpert, Bruce; Moghannam, Kathleen; Hahn, Paul
Subject: Plumas Motorized Travel Management
Attachments: Butte County Appeal-PNF Travel Mgt Plan.pdf
In accordance with the appeals procedure within the Record of decision, attached please find the County of Butte's
Appeal of the Record of Decision and Final Environmental Impact Statement for the Motorized Travel Management
Project in the Plumas National Forest.
I will also be sending the original to the Regional Forester through the US Mail.
~, D
Butte County, Dept of Public Works
7 County Censer Drive Oroville CA 95965
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BbARD OF Sff1aERVISORS
DEC Z .~ ~~10
OROVILLE, CALIFORNIA
aFFxCE OF COUNTX COUNSEL
COUNTY OF BUTT
25 COUNTY CENTER DRIVE, SUITE 210
OROVILLE, CALIFORNIA 95965-3380
PHONE (530) 538-7621
FAX (530} 538-5891
ASSISTANT COUNTY COUNSEL
ELIZABETH McGIE
BRUCE S. ALP1~RT
COUNTY COUNSEL
CHIEF DEPUTY COUNTY COUNSEL
FELIX WANNENMACHER
AEPUTY COUNTY COUNSEL
BRAD STEPHENS
KATHLEEN KEHOE GREESON
December 20, 2010
Randy Moore
Regional Forester
USDA Forest Service
1323 Club Drive
Vallejo, CA 94592
Re: The County of Butte's Appeal of the Record of Decision and the Final Environmental
Impact Statement for the Motorized Travel Management Project in the Plumas National
Forest.
Dear Mr. Moore:
The County of Butte, California, a legal subdivision of the State of California, submits
this administrative appeal in accordance with the requirements of 36 C.F.R Part 215 and/or 36
C.F.A. Part 217. ~
The County of Butte, California, is the appellant. The County's contact inforrnation is as
follows:
Clerk of the Board
Butte County Board of Supervisors
25 County Center Drive, Suite 200
Oroville, California 95965
Tel. {530) 538-7631
Fax. (530) 538-7120
The County timely submitted comments to the draft enviranrnental impact statement.
The County files this appeal under 36 C.F.R. Part 215 and/or 36 C.F.R. Part 217 in. response to
the Record of Decision (R.OD) issued by Alice B. Carlton, Forest Supervisor for the Plumas
' The County reco~izes that 36 C.F.R. Part 217 was repealed in 2000. However, given the fact that
the 1982 Planning Rules apply in this situation, the County, out of an abundance of caution, also asserts an appeal
under 35 C.F.R. Part 217 since that appeal procedure existed in conjunction with the 1482 Planning Rules.
National Forest, an October 27, 2010, concerning the Motorized Travel Management Project in
the Plumas National Forest (PNF}, as well as the Final Environmental Impact Statement (PETS)
relied upon by the Forest Supervisor in the ROD.
The County's objections to the ROD at3,d the FEIS are as follows:
1. In making her ROD, the Forest Supervisor failed to coordinate with the County,
as required by 16 U.S.C. §160, 36 C.F.R. §212.53, and 35 C,F.R. §21.9.7(a}
(1982}.
2. The FEIS, in violation of the National Environmental Policy Act (NEPA} and the
National Forest Management Act {NFMA}, relied on an unsupported, inaccurate
assessment of the California Vehicle Code when it eliminated Exam detailed
analysis a reasonable alternative of authorizing motorized mixed use on
Maintenance Leve13 roads in the Plumas National Forest. As a result:
a. The FEIS contains inaccurate and misleading information; and
b. The FEIS contains an inadequate range of alternatives.
3. The FEIS, in violation of NEPA and the NFMA, and their associated regulations:
a. Failed to adequately analyze the affordability of all alternative plans;
b. Failed to analyze the environmental effects of deferred maintenance;
EIiminated from detailed analysis a reasonable alternative of reducing
Maintenance Levei 3 roads to Maintenance Leve12 roads, which would
have also lowered deferred maintenance.
d. The lianited motorized mixed use engineering analysis that was conducted failed
to meet the quality and professional integrity standards required by NEPA.
The County requests that the Forest Service halt implementation of the Motorized Travel
Management Project in the Plumas National Forest {the "PNF Travel Management Project"} and
reverse the ROD and the FEIS based on vialatians of NEPA, the NFMA, and the regulations and
policies described herein. In reversing the ROD and the FEIS, the County requests that the
Forest Supervisor be directed to perform the following obligations:
1. The Forest Supervisor engage incoordination with the County as required by 16
U.S.C. §1604, 36 C.F.R §212.53, and 36 C.F.R. § 219.7(aj (1982).
2. The Forest Supervisor, in compliance with NEPA and the NFMA, analyze and
consider, in coordination with the County, the alternative of authorizing
motorized mixed use on all Maintenance Leve13 roads in the Plumas National
Forest.
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3. The Forest Supervisor, in compliance with NEPA and the NFMA, analyze and
consider, incoordination with the County, the alternative of reducing
Maintenance Level 3 xoads to Maintenance Leve12 roads.
4. The Forest Supervisor require that all motorized mixed use engineering analysis
that may be conducted be xequired to meet the quality and professional integrity
standards established by NEPA.
5. The Forest Supervisor otherwise comply with all requirerr~ents imposed by
NEPA, the NFMA, and their implementing regulations.
ARGUMENT
I, THE FOREST SUPERVISOR FAILED TO COORDINATE WITH THE COUI~ITY
Ili DEVELOPING THE PNF TRAVEL MANAGEMEIIIT PROJECT
In developing the PNF Travel Management Project, the Forest Supervisor was mandated
by law to coordinate with local governments. The Travel Management Rule, under which the
PNF Txavel Management Project was developed, states:
The responsible official shall coordinate with appropriate Federal,
State, county, and other local government entities and tribal
governments when designating National Forest System roads,
National Forest System trails, and areas on National Forest System
lands pursuant to this subpart.
See 36 C.F.R. §212.53.
The Forest Supervisor's coordination obligation is also established by other statutes and
regulations. The NFMA requires the Forest Service, in revising land and resource management
plans, to coordinate with the land and resource management planning processes of state and local
governments. 16 U.S.C. § 1604.
In addition, the Planning Rules issued for the Forest Service in 1982 also require
coordination. 36 C.F.R. § 219.7(a} (1982) provides:
The xesponsible lime officer shall coordinate regional and foxest
planning with the equivalent and related planning efforts of other
Federal agencies, State and local governments, and Indian tribes.
The 1982 Planning Rules are applicable to the Forest Supervisor's development of the
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PNF Travel Management Project. On December 1$, 2009, in the Notice of Intent to prepare an
environmental impact statement for issuance of new planning rules, Harris Sherman, the
Undersecretary far Natural Resources and Environment in the Department of Agriculture, stated:
The Agency's expectation based upon its experience with the 2000
rules is that national wrests and grasslands will use the 1982 rule
provisions, as permitted by the transition provisions of the 2000
rule, to revise and amend plans until a new planning rule is issued.
See 74 Fed. Reg. 57165 (December 18, 2009)
Since the PNF Travel Management Project is designed to revise and amend the Forest
Plan, the Forest Supervisor is required to follow the 1982 Planning Rules.
In order to comply with the 1982 Planning Rules, the Forest Supervisor was required to
comply with specific obligations. However, she failed to do so as follows:
1. The Forest Supervisor was required to give notice of the preparation of the
PNF Travel Management Project, along with a general schedule of
anticipated planning actions, to the heads of units of government
for the counties involved, which would include the Butte County Board of
Supervisors. 36 C.F.R. §219.7(b) (1982}. This notice was to be issued
simultaneously with the publication of the notice of intent to prepare an
environmental :impact statement as required by NEPA. However, the
Forest Supervisor did not provide any such required notice to the Butte
County Board of Supervisors.
2. The Forest Supervisor was required to meet with representatives of the
County at the Beginning of the planning process to develop procedures for
coordination. As a minimum, such conferences were also to beheld after
public issues and management concerns were identified and prior to
recommending the preferred alternative. Such conferences could also be
held in conjunction with other public participation activities, if the
opportunity for government off cials to participate in the planning process
was not thereby reduced. 35 C.F.R. § 219.7(d) {1982). However, the
Forest Supervisor did not engage in any such conferences with County
representatives.
3. The Forest Supervisor was required to conduct a program of monitoring
and evaluation that included consideration of the effects of National Forest
management on land, resources, and communities adjacent to or near the
National Forest being planned and the effects upon National Forest
management of activities on nearby lands managed by other Federal or
other government agencies or under the jurisdiction of local government.
36 C.F.R. § 219{f) (1982}. There is no evidence that any such program of
monitoring and evaluation was conducted.
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4. The Forest Supervisor was requiured to review the planning and land
use policies of the County and display this review in the environmental
impact statement for the plan. 36 C.F.R. § 219.?(c) (1982). This review
was to include:
a. Consideration ofthe objectives of the County, as expressed
in its plans and policies;
b. An assessment of the interrelated impacts of these plans
and policies;
c. A determination of how each Forest Service plan should
deal with the impacts identified; and
d. Where conflicts with Forest Service planning are identified,
consideration of alternatives for their resolution.
However, t~xe FEIS contains no indication that the Forest,S`upervisor
conducted suc~i a review.
S. The Forest Supervisor was to seek input from the County to help resolve
management concerns in the planning process and to identify areas whexe
additional research was needed. This input should have been included in
the discussion of the research needs of the designated forest planning area.
36 C.F.R. § 219.7(e) (1982). There is no indication that the Forest
Supervisor complied with the requirements of this regulation.
Mare specific examples of the failure to coordinate and adequately stay the effects of the
ROD are as follows:
1. While the Plumas National Forest is quick to promote the 234 miles of previously
"unauthorized routes" it fails to mention the 198 miles of previously accepted
xoads that have been closed. In many instances these road closures make the
difference between being able to make a loop trip and having to gn back and Earth
on the same read.
2. Plumas National Forest selected Motorized Travel Management Final
Environmental Impact Statement (FEIS)-Alternate 5, will have a negative
economic impact to Butte County and the surrounding areas. Specifically,
Alternate 5 fails to accept the historic mixed use of most of the inventoried 1,107
miles of "unauthorized routes." This reduction in mix use xoads will reduce the
area's attraction for recreation, thus significantly decreasing the purchase of food,
fuel and ovexnight accommodatiax~s from visitors. The reduction afthis
economic activity will be detrimental to rural communities that depend on
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seasonal recreation activities for their income.
3. The Plumas National Forest's Motorized Travel Management -Alternative 5 will
significantly reduce outdoor recreation opportunities in Butte County. The failure
to include the numerous "wa.authorized routes" that have been historically used
and the closuxe of 198 miles of previously accepted roads that cross over and
provide circulation throughout the Plumas National Forest will prevent reasonable
half day or even full day loops for family OHV recreation and accompanying
activities in the Forest.
4. The requirement for vehicles to stay within one vehicle car length of the road or
trail will severely impact congestion and safety as trailers, including horse and
cattle as well as travellcamping trailers wi11 no longer be able to be parked off of
the traveled way. This requirement also increases the dust the camperslusers will
be subjected to.
5. The County and public did not have the opportunity to comment on the increased
level of road closures in the areas known as French Creek and Granite Basin due
to input from the USF&W regarding potential red legged frog habitat. This input
from the USF&W and the reduction in mixed use roadways was accomplished
between the DEIS and the FEIS, without coordination with Butte County.
6. The County and public did not have the opportunity to coznrnent on the closure of
198 miles of previously approved routes. The red circles on the attached maps
that were available on the 1?lamas National Forest website on October 1, 201.0
(Attachment A) and November 1, 2010 {Attachment B), highlight two routes that
were shown to the public as available for circulation October 1, and removed
without any public notice by November 1, 2010.
7. By not including all of the "unauthorized routes" and on the closure of 198 miles
of previously approved routes in Alternative S, the Forest's Motorized Travel
Management Plan will have a significant negative impact on the area's
transportation and circulation system. Many routes will require recreational users
to either backtrack or travel much longer distances to make a loop. In other
cases, the Plan would require the OHV user to trailer his vehicle to traverse anon-
nuxeduse designated section of road.
8. The Plumas National Forest has inventoried 1,107 miles of "unauthorized routes"
that have been historically used by the public, the continued use of which is
identified as Alternative 1. The main concern expressed in the FE1S for
Alternative 1 is that new roads would continue to proliferate through user-created
route segments if continuing cross country travel is allowed. The most reasonable
solution and best management plan would be to allow the public to use all the
existing, inventoried roads and prohibit the construction or creation of new routes
or trails without appropriate review and approval from the Plumas National
Forest. The approval of all the "unauthorized routes" and restoration of 198 miles
of existing routes would provide a balance between forest recreational
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opportunities and appropriate resource protection. This could possibly be referred
to as Alternative 1 a.
The County of Sutte has submitted letters and comments to the Plumas National Forest
during the development of their Motorized Travel Management Plan and its Environmental
Impact Statement that the County believes the Forest Supervisor failed to consider.
II. THE FEIS RELIED ON AN UNSUPPORTED, INACCURATE ASSESSMENT OF
THE CALIFORNIA VEHICLE CODE IN DECLINING TO EVALUATE, AS A
REASONABLE AL'T'ERNATIVE, THE AUT)FIORIZATION OF MOTORIZED
MI~ET) USE ON ALL MAINTENANCE LEVEL 3 ROADS
The 7~EIS does not adequately consider public use on National Forest System {NFS}
routes and the county road system. Integration and collaboration with other road management
agencies is critical for national forest travel management plans. The Califorta Vehicle Code
(CVC) perrrrits mixed use on unpaved public roads. The Californua Highway Patrol (CHP} has
confirmed thus. Many of our county roads link with the Forest's unpaved maintenance Ievel
(ML) 3 and 4 "passenger car" road system. And yet, we understand that current regional policy
prohibits non-highway legal vehicles on passenger car roads with a maintenance level of 3, 4, ox
5. The Forest Supervisor cites the CVC to justify this prohibition. We see no foundation fax this
assertion. ~Ve consider the CHP's interpretation to be authoritative; mixed use is lawful and
should be allowed. Unpaved county and NFS roads have fang provided arx interconnected
transportation system for non-highway legal vehicles (OI IVs}. This provides loop opportunities
for OHVs. The safety record of OITVs is very good. The Forest Service has not documented a
single mixed use accident.
A. ML 3 Roads Are Not Highways under California Vehicle Code §§ 3$000 et
5e(l.
In reaching its conclusion, the FEIS relied upon the provisions in Division I5.5 of the
California Vehicle Code, cornmencirrg with §38000. In summary, that statutory scheme provides
as follows:
As a general rule, motor vehicles that are not registered under the
California Vehicle Code because they are to be operated or used
exclusively "off the highways" are to }~e issued an identifcation plate or
device. Cal. Veh. Code § 38010(a).
2. Such off highway motor vehicles are prohibited from being operated on a
highway except under certain circumstances. Cal. Veh. Coda § 3$025,
38426, 38025.5.
3. One authorized exception is for a highway to be designated as "combined
use" under California Vehicle Cade §38025. Pursuant to this statute, if a
governmental agency finds that a highway, or a portion thereof, under the
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jurisdiction of that agency, is located in a manner that provides a
connecting link between off-highway motor vehicle trail segments,
between an off highway motor vehicle recreational use area and necessary
service facilities, or between lodging facilities and an off highway motor
vehicle recreational facility, and if it is found that the highway is designed
and constructed so as to safely permit the use of regular vehicular traffic
and also the driving of off-highway motor vehicles on that highway, the
agency may designate that highway, or a portion thereof, for combined use
and shall notify the California Highway Patrol of that designation.
The FEIS erroneously determined that ML 3 roads are "highways" under California
Vehicle Code §§ 3$000 et seq. Based on this interpretation, the FEIS equates "motorized mixed
use" on ML 3 roads with a "combined use" designation under California Vehicle Code § 3$026.
However, ML 3 roads do not satisfy the definition of "highways." As such, OHV's are
generally allowed to use these roads under California law. There is no need far a "combined use"
designation under California Vehicle Code § 38026.
California vehicle Code ~ 38D111(a) specifically states that the term "highway" does not
include frre trails, logging roads, service roads regardless of surface composition, or other
roughly graded trails and roads upon which vehicular travel by the public is permitted.
The California Highway patrol has opined in the administrative record that ML 3 roads in
the Plumas National Forest da not meet the definition of "highways."
Contrary to the conclusion in the FEIS, ML 3 roads are not highways. Therefore, they are
generally open to motorized mixed use under California Vehicle Code §§ 3$000 et seq. The
FEIS contains erroneous statements and conclusions regarding California law.
S. The FEIS Contains No Analysis or Information to Support the Conclusion
tha# MY, 3 Roads are "Highways" under California Vehicle Code §~ 3$000 et
seq. and does not mention the Opinion from the California Highway Patrol.
It is difficult to determine how the FEIS reached its erroneous conclusion because the
FEIS contains no explanation as to how that conclusion was reached. The FEIS contains
absolutely no analysis to support its conclusion that ML 3 roads are "highways" under California
Vehicle Code §§ 3$000 et seq. and, as such, are not generally open to motorized mixed use.
(Exhibit 3, p.63, Exhibit 4, App. C}.
In addition, in reaching its conclusion, the FEIS does not address and does not even
mention the written opinion from the California Highway Patrol on this issue.
In a letter dated 4116110 to Harris Sherman, USDA Under Secretary for Natural
Resources and Environment, Congressmen W ally Herger and Tom McClintock voiced several
concerns regazding OHV use on MI, 3 roads:
• "The overwhelming majority of our constituents, as well as local
government, are opposed to the Region's policy that defines NIL 3-5 roads
as "highways."
• "The Region's policy dramatically restricts OHV access-by more than
9Q°lo as currently proposed~lespite significant opposition documentation
justifying mixed-use on NIL 3 roads."
"While the Region continues to defend this policy by invoking the CVC,
the CHP has repeatedly clarified that ML 3 roads need not be designated
as highways in order to comply with CVC "
• "The unpaved roads on many of these forests are mixed with similar roads
under the jurisdiction of county government that do allow for OI~.V travel,
yet are in compliance with sfate law."
• "W a believe that the Region's policy on this issue only serves to greatly
expand the continuing trend in diminishing access and multiple-use of our
federal lands, and is simply unacceptable."
• "We request that you reverse the Region 5 NIL 3 road's designation as
"highways" or use any other means within your authority to address these
concerns."
• "We share the desire to protect our public lands for the enjoyment of the
public, while ensuring safety. These well-intentioned goals need not be
mutually exclusive and we hope that the Forest Service will work with the
OTTV community and other stake holders to implement a balanced mixed-
usepolicy."
The Congressxnens' letter to the Under Secretary was largely ignored, and the Forest
Supervisor made no attempt to work with user groups or other stake holders.
Virtually all NIL 3 roads on the Plumas NF were built during past logging activities. This
fact is documented in Plumas NF engineering timber sale files, and in road maintenance
historical road log files. Essentially all ML 3 roads axe "logging roads," which are clearly
exempt from the definition of "highway" in the CVC. But regardless of the reason the roads
were constructed, they all Iie an National Forest land which means they are excluded from the
term "highway" in the CVC definitions. Therefore, the CVC cannot be the basis to exclude
OHVs from NII_, 3 roads. The Forest Supervisor should not dictate where a State law applies,
particularly after the State of California has stated numerous times that the CVC does not apply
to these roads.
A decision based on a "clear error of judgment" cannot be upheld. Id. A "clear error of
judgmen#" exists when the agency offers an explanation that runs counter to the evidence before
the agency. Natural Resources defense Council v. United States Forest Service, 421 F.3d 797
(2Q05).
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The FFIS contains a "clear error of judgment." As stated previously, the FEIS failed to
conduct a detailed analysis of a reasonable alternative based on its erroneous conclusions
regarding Califorza law. The Forest Service had evidence from both the County and the
California Highway patrol that its conclusion was erroneous. {Exhibits 1,7). As such, the Forest
Service's conclusion rrarts counter to the evidence before it.
Futhermore, there are na facts presented by the Forest Service to support its conclusion
that ML 3 roads are "highways" under California Vehicle Code §§ 38400 et seq. and, as such,
are not generally open to motorized mixed use. There is simply no analysis at all to support the
Forest Service's conclusion in this regard. An agency's action is arbitrary and capricious when
the agency fails to examine the relevant data and articulate a satisfactory explanation for its
action including a rational connection~between the facts found and the choice made. See, e.g.,
11~ative .ecosystems Council v. United States Forest Service, 418 F.3d 953 {2005).
As such, the ROD and the FEIS are arbitrary and capricious, in violation of the NFMA.
C. Tl~e )EIS Indicates a Failure to Engage in Coordination with the
County to consider the County's Alternative
As explained above, the Forest Supervisor was required by law to engage in coordination
with the County. This included reviewing the planning and land use policies of the County and
displaying this review in the environmental impact statement. 36 C.F.R. § 219.7{c) (19$2). This
review was required to include:
Consideration of the objectives of the County, as expressed in its
plans and policies;
2. An assessment of the interrelated impacts of these plans and
policies;
3. A determination of how each Forest Service plan should deal with
the impacts identified; and
4. Where conflicts with Forest Service planning are identified,
consideration of alternatives for their resolution.
However, by rejecting from detailed analysis the County's proposed alternative based on
an erroneous understanding ofthe California Vehicle Code, the Forest Supervisor failed to
conduct this mandated review and otherwise failed to engage in legally mandated coordination
with the County.
~~
BILL CONNELLY, Chair of e
Butte County Board of Supervisors
G:~PLUMLLS APl'EAllAppcal.wpd
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