When Being ‘Inventoried Roadless’ Means NEPA Discretion

The Tenth Circuit Misses a Chance to Clarify its Standard of Review on FONSIs

The Tenth Circuit has upheld a district court’s denial of NEPA relief against a Forest Service Finding of No Significant Impact (FONSI) in Biodiversity Conserv. Alliance v. Forest Serv., 765 F.3d 1264 (10th Cir. 2014).  When the Medicine Bow National Forest was inventoried for “roadless areas” around 2000, a million acre space had to be surveyed and categorized.  To give city folk in the East like myself some sense of what 1,100,000+ acres is, imagine something about 1/3d the size of Connecticut and you’re in the ballpark.

The Forest Service surveyed and estimated that the “Middle Fork” region of its Laramie Ranger District (not too far from Centennial, WY)—about 13,000 acres by itself—was “roadless” within the meaning of the Service’s 2000 Roadless Area Conservation Rule.  That is to say, it lacked authorized vehicle routes more than 50 inches wide.  Of course, as engines improved and more people pursued their backcountry adventures on powerful off-road equipment, places like the Middle Fork experienced a dramatic upturn in “vehicle miles travelled,” if we think of “vehicles” broadly and motorbikes count.  All that began to change in late 2000 when the Service’s nationwide initiative to designate and protect backcountry areas from VMTs came to the Laramie Ranger District.

Before then, users were relatively free to ride “off-road” in the forest (and that part of it) and had developed a series of unauthorized “vehicle routes” of varying widths.  This space was, thus, designated the Middle Fork Inventoried Roadless Area (IRA) even though, then as now, the place had lots of vehicles, lots of evidence of vehicle traffic, and many routes had since become well known to local travelers.

One of these routes, the “Albany Trail,” had about 6 miles of its length within the Middle Fork IRA and was well-used in 2000 when Forest Service HQ required that unauthorized vehicle routes in IRAs be closed immediately if they could cause adverse environmental impacts.  At the time, the Albany Trail wasn’t closed—but perhaps it should’ve been.  Because interspersed throughout the terrain covered by the “Albany Trail” were acres and acres of wetlands, specifically, “fens”—a type of wetland with certain key ecological properties that are essentially irreplaceable once they’re lost. fens diagram

Fast-forward to 2006 when the Medicine Bow was completing a new “Travel Management” plan and the troubles in the Laramie District had to be sorted out.   Public comment on a proposed plan led to the conclusion that commenters supported opening certain trails, including the Albany Trail, by about a 2-1 margin.  Compared to the Bow as a whole, the vicinity of trails it was proposing to open was tiny (1.5% overall).  And there were not projected to be any Endangered Species Act complications from the changes.

The Service elected to take two actions, neither of which it believed would cause a “significant” impact on the environment within the meaning of NEPA § 102(2)(C). First, it decided to open the Albany Trail officially as an “authorized” vehicle route—along with about 87 other miles of theretofore unrecognized vehicle routes—including the stretch within the Middle Fork IRA.  Second, it decided to close other trails (approx. 290 miles of them).  Each action was issued its own FONSI, which the Biodiversity Conservation Alliance then challenged in federal court.

The interesting legal issue here is how the responsible official decided to deal with what amount to trespassing off-road vehicle users taking their equipment into places the Service itself had said they should not be.  By 2006, when the users had established a de facto “road” in an inventoried roadless area, a pragmatic Forest Ranger could well conclude that there are other battles to be fought and that if scofflaws can just be counted on to confine their behaviors, the impacts thereof can be contained.  Law enforcement entails choices like this all the time.  But the FONSI wasn’t only a law enforcer’s planning document.  It was the agency’s finding that its actions would have only insignificant environmental impacts.  And that’s where it gets a little dicey.

Can the Forest Service predict where people who make “unauthorized” roads in backcountry areas will go next?  If not, a decision essentially validating their road after the fact seems like one that could cut both ways.  On the one hand, maybe those users will leave well enough alone and keep to the now-authorized vehicles routes.  On the other hand, what is their incentive for doing so?  Policing and enforcement of these regulations—the Forest Service cannot even attempt to deny—is highly imperfect (and that’s assuming it is being done in good faith, one benefit-of-the-doubt the decentralized Forest Service might not merit).

As the district court noted, in describing the “hundreds of miles” of routes Medicine Bow Forest users had created prior to 2006,

[m]any of the unauthorized roads were developed by forest users for hunting, fishing, camping, and past timber sale operations—others had no apparent purpose. (A.R.4756.) The unauthorized trails appear to have been created by recreational riding groups or individuals with the trails themselves valued as recreational experiences. (Id.) Some of these trails offer outstanding views and access to interesting cultural sites. (Id.) The USFS acknowledged the “lasting environmental impacts” generally resulting from these user-created routes and further recognized that motorized use on these routes has the potential to impact people looking for quiet, peaceful recreation experiences, thus increasing conflicts between forest users. (A.R.4754.)

No. 2:11–CV–226–SWS, Slip Op. at 3.  They created those trails, in other words, because no one from the Forest Service was there to stop them, no consequences for doing so ever ensued, and it was the very remoteness and un-roaded nature of the areas in question that drew them there in the first place.  (I can think of lots of currently “unauthorized” roads calling to future users elsewhere in the Medicine Bow right now.)  After those vehicle routes had been there for a time, it was impossible to ignore the “lasting environmental impacts” thereof.  Seems a little circular to me.

It is hard to resist commenting on this case as one that arose in the Tenth Circuit and not in the Ninth Circuit.  Had it been the latter—perhaps a similar controversy bubbling up out of Montana’s Gallatin National Forest—the twin FONSIs here would’ve faced a very different legal standard.  The Ninth Circuit has construed CEQ’s factored definition of “significant” in 40 C.F.R. § 1508.27 (which includes the relative uncertainty of the effects in question as a consideration) to mean that action agencies may not issue a “finding” of insignificance unless, well, they have evidence to that effect.  In several cases now the Ninth Circuit has put its foot down on FONSIs,USCircuits especially those involving cumulative impacts, agency pleas of ignorance, and refusals to quantify what seems readily quantifiable.  See, e.g., Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002).  One unfortunate upshot of how NEPA’s been administered to date is that the most important map is sometimes the one shown here—the map of our judicial boundaries.


I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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