Randy Moore

Region 5 Forester

Appeal Deciding Officer

USDA Forest Service

Pacific Southwest Region

1323 Club Drive

Vallejo, CA  94592

May 19, 2008

Lead Appellant: 

Center for Sierra Nevada Conservation

P.O.  603

Georgetown, CA 95634

Email: csncKaren@gmail.com

Phone:  530-333-1106

Notice of Appeal

Dear Regional Forester Moore:

Pursuant to 36 CFR Part 215, on behalf of CSNC, our members and the undersigned organizations and individuals, we are appealing the March 31, 2008 Record of Decision by Eldorado National Forest Supervisor Ramiro Villalvazo for the Public Wheeled Motorized Travel Management EIS and approval of the Travel Management and its FEIS. 

Appellants have standing to appeal, having submitted substantive comments during scoping for this project, in addition to substantive comments on the Draft Environmental Impact Statement.

Center for Sierra Nevada Conservation (CSNC), incorporated as a non-profit environmental organization in 1986, has a long-standing interest in the Eldorado National Forest. Our members use the Forest for hiking, fishing, backpacking, bicycling, recreational driving, scientific research and spiritual renewal.  We have been involved in travel management, timber management, wildlife and recreation issues on the Eldorado for over 20 years.  Our members use the Eldorado for recreational and educational purposes and are profoundly concerned about the manner in which vehicle use is managed throughout the forest.  We have worked with Forest staff on restoration projects, including a multi-year meadow restoration project in Indian Valley, and another on Little Silver Creek in the Rock Creek area.  CSNC’s lawsuit challenging the adequacy of the Eldorado’s 1990 ORV Plan resulted in Judge Karlton’s August 2005 Order requiring the Eldorado to complete route designation. 

California Native Plant Society (CNPS) is a statewide, non-profit organization made up of nearly 10,000 members in thirty-two chapters.  These members share an interest in both learning about, appreciating, and preserving California’s native flora.  The El Dorado Chapter of the CNPS covers the western slope of the Sierra Nevada and includes the El Dorado National Forest.  This diverse area affords our chapter an especially wide variety of plants and habitats, from drought-tolerant foothill chaparral to subalpine plants on the high mountain peaks of the forest.

The California Wilderness Coalition is a statewide non-profit organization that works to defend and protect California’s last remaining wild places.

The Center for Biological Diversity is a non-profit, public interest

conservation organization with over 40,000 members, dedicated to the

conservation of imperiled species and their threatened habitats through

science, policy, and environmental law.

The Environmental Protection Information Center (EPIC) monitors land-use practices across Northern California, including the El Dorado National Forest. Members and staff use and enjoy areas proposed for off-road vehicle use for recreation, aesthetic pleasure, spiritual fulfillment, ecology research, and public education.  Appellant’s activities will be irreparably damaged by ground disturbance on these acres.  Appellants have a long standing interest in the environmental quality and biological diversity of forests in northern California .  Appellants have the right to demand Forest Service compliance with applicable environmental laws and agency policies.  

Friends of the River is a non-profit 501(c)3 organization working to preserve, restore, and sustain California rivers and streams for both environmental and recreational values. FOR has approximately 5,000 members in the state of California . Many of our members recreate in the Eldorado National Forest and are interested in the long-term protection of its natural and cultural resources.

 Monte Hendricks is a local resident who spends extensive time year-round recreating on the Eldorado.

The Forest Issues Group (FIG) focuses its on-the-ground activities on the

public lands of the Tahoe National Forest . However, they are also concerned with the U.S. Forest Service management planning on National Forests, and the other Sierran Forests including the adjacent Eldorado National Forest, and how this management and private timber sales impact the Tahoe National Forest.

Statement of Reasons


After years of litigation, the Forest has defied the courts and betrayed the public by delivering a plan that again panders to the off-road community, designating hundreds of miles of routes for motor vehicle use without site-specific environmental analysis, while fully aware of the huge negative impact these high road densities have on forest natural and cultural resources.

Management direction and goals in the Sierra Nevada Forest Plan Amendment were designed to “ensure the sustainability” of the Sierra Nevada national forests. “The first priority for stewardship of the national forests is to maintain or restore ecological sustainability to provide a sustainable flow of uses, values, products, and services from these lands.[1]

The Forest Supervisor believes he can comply with the agency’s new Travel Rule to identify a “minimum” system by calling his decision a “backbone” OHV system.  What he has, in fact, adopted is a saturation of the forest by roads that impact aquatic and hydrological systems, disrupt wildlife habitat, act as vectors for additional spreading of noxious weeds and impact almost every part of the forest with vehicle noise, to the detriment of other forest visitors.


He has chosen the action alternative with the highest number of vehicle miles, and the most stream crossings, despite the fact the forest cannot afford to maintain them.  The alternative has no provision for physically closing or restoring undesignated routes, or for providing the required level of law enforcement.

In the ROD, the Forest Supervisor claims routes with a high potential for impacts to riparian conservation areas were removed.  The record shows otherwise; a number of routes identified with high stream impacts, some even scheduled for de-commissioning, are designated for motor vehicle use in this decision.[2] Nothing in the FEIS suggests this system of roads and trails is sustainable.  On the contrary; the record shows that the ENF is unable to maintain even its level 3, 4 and 5 roads.  It also shows severe environmental damage from level 1 and 2 roads and motorized trails.

The FEIS is almost completely lacking in site-specific analysis; relying primarily on GIS layers of inappropriate scale for a project-level analysis.  The Forest Supervisor felt it was more important to appease the off-road community by providing detailed explanation for routes that were not designated, while abdicating his responsibilities under law and regulation to analyze routes that are designated.

The ROD violates the Federal Land Planning Management Act (FLPMA) by designating roads and trails in meadows, banned in both the Eldorado Land Management Plan and the Sierra Nevada Forest Plan Amendment.  To accommodate routes in meadows, the FEIS unlawfully changes criteria for Riparian Conservation Objectives analysis, in violation of FLPMA and NEPA, in order to make the analysis conform to the decision.  It also fails to identify numerous designated roads and trails that impact meadows and would also require LMP amendments.

Finally, the ROD and FEIS violate Judge Karlton’s order of August 16, 2005 to “issue a Final Environmental Impact Statement and Record of Decision on a new ENF OHV Plan (or site-specific area plans) to be consistent with regional guidelines for OHV route designation, with new national OHV regulations which the Forest Service expects will be promulgated later this year, and with the requirements of the National Environmental Policy Act and the National Forest Management Act.” The ROD and FEIS violate both NEPA and the National Forest Management Act.

The FEIS and ROD Violate Judge Karlton’s Order

Judge Karlton’s August 16, 2005 order requires the forest to “issue a Final Environmental Impact Statement and Record of Decision on a new ENF OHV Plan (or site-specific area plans) to be consistent with regional guidelines for OHV route designation, with new national OHV regulations which the Forest Service expects will be promulgated later this year, and with the requirements of the National Environmental Policy Act and the National Forest Management Act.”

The ROD is inconsistent with the Travel Rule, knowingly designating a system it acknowledges it cannot afford to manage and maintain.

The FEIS and ROD are inconsistent with Regional Guidelines for route designation. The Regional guidelines defer to the National Guidebook.  The National Guidebook instructs forests to “Use Travel Analysis to Identify Proposals for Change.” [3] The Roads Analysis for the Eldorado National Forest and Landscape analysis that were completed both cited an excess of ML-2 roads and user-created routes as a resource concern. They specifically documented high-risk roads.  Without any explanation, the FEIS designates a large number of these roads for continued motor vehicle use. 

The guide also directs forests to consider their ability to enforce regulations and designations; route and facility maintenance requirements (annual and long-term);  and the ability to fund maintenance, operation, and enforcement of the system.  The FEIS and ROD designate a system of roads and trails the Forest Supervisor acknowledges it can’t maintain, manage, or enforce.

The Region 5 Route Designation Guidebook includes direction to complete Trail and Area Evaluation Forms.[4]  The Eldorado did not follow this direction; hence the lack of site-specific information about the routes identified for designation.  The project file contains only incomplete data sheets for a few of the routes designated.  With few exceptions, ML-2 roads were not evaluated.

II.  Appellants disagree with the decision to implement Alternative Modified B because:

A.  Modified B fails to meet the Purpose and Need, as identified in the EIS

CEQ regulations 36 CFR 1502.13 (Purpose and need) requires, “The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” The EIS and ROD fail to meet the Purpose and Need for Action identified in the EIS:  “Reconsider whether motorized use should be allowed to continue on NFS roads maintained for high clearance vehicles (NFS ML-2) AND NFS trails managed for OHV use and open for public use.[5]

The EIS states that it will analyze maintenance level -2 roads, level 1 roads proposed for reclassification as level 2 roads, unauthorized routes proposed for addition to the system and trails to be designated for OHV use, then makes a deliberate decision not to include them in the analysis of impacts.


 “Based on the ENF Supervisor’s interpretation of the February 15, 2005 Court Order, this proposal will consider whether motorized use should be allowed to continue on NFS roads maintained for high clearance vehicles (NFS ML-2) and NFS trails managed for OHV use and open for public use.  The proposal will also consider changes to season of use and vehicle class on existing NFS roads and trails, and the addition of unauthorized routes to the ENF NFS.”[6]  (Emphasis added.)

The Regional Forester, in an Opinion article published in the Sacramento Bee, also acknowledged the ENF’s need to analyze ML-2 roads:

“Due to a recent court order, the scope of the Eldorado National Forest decision is different from what we expect from other national forests in California still conducting their travel management analyses. The court order required the Eldorado National Forest to conduct a National Environmental Policy Act review on its forest system roads and trails receiving OHV use, in addition to the national requirement of prohibiting cross-country travel by motor vehicles.” [7]

However, the project record documents direction to the ENF by the Regional Office not to analyze level 2 roads.  First, the forest was instructed to ignore Sierra Nevada Forest Plan Amendment (SNFPA) direction for analyzing riparian areas:


1. Existing ML-2 roads (maintenance level 2 roads) that will remain as ML-2 roads under the action alternatives (Alternatives B, Modified B, C, D, and E) were not included in the RCO analysis. This is because existing ML-2 roads that remain as ML-2 roads will not be subjected to new management activities or a new type of use (i.e. the management and type of use will not change as a result of the action alternatives). 

The above determinations are based on Standard and Guideline #92, which states “Evaluate new proposed management activities within CARs and RCAs during environmental analysis to determine consistency with the riparian conservation objectives at the project level and the AMS goals for the landscape.” Guidance for this determination was provided by the Regional Office of the Forest Service (USFS, Region 5) in February 2008. [8], [9] (Emphasis in original.)

Secondly, Districts were only asked to evaluate ML-1 roads and non-system routes proposed for designation.  Because the Purpose and Need is to determine whether vehicle use on specific ML-2 roads will continue; the forest must analyze ML-2 roads in order to make that determination. [10]

B.  The Forest Supervisor’s Decision failed to consider substantive comments, as detailed below.

Appellants provided detailed comment on specific routes.  The EIS, rather than respond to these comments, simply included a table of some of these routes with a column indicating they would be open.  The EIS provides no explanation for including these routes and no response to the specific concerns raised for each.  In some cases, the routes for which we raised specific concerns were not even identified in the FEIS.[11]

For example, we provided extensive comments on Route 10N13, including 12 pages of photographic evidence of damage. [12]  Not only was there no response to our specific comments, the route isn’t even identified on the list of routes commented on!

Appellants also made specific comments, including photographs documenting damage, on Trail 25 in the Elkins Flat OHV area.  The response to comments fails to address our concerns. Roger Poff, in his own Review of Forest Service OHV Soil Conservation Activities report on Elkins Flat, observed problems with this same route. His report noted, “If not rerouted, it will be a chronic drainage and widening problem.  The District is reluctant to propose a reroute because this will require a NEPA analysis; this will bring it to the attention of groups opposed to OHV who will insist ion closing the damaged trail, but will oppose construction of anew trail to replace it.”[13]

This appalling disregard for resource damage violates Executive Order 11989 and implementing regulations.

Appellants’ comments included the need for the ENF to comply with the Clean Water Act and Porter-Cologne by obtaining a permit for discharge of waste.  The also FEIS ignores this comment. 

Additional examples of the forest’s failure to reply to substantive comments are also included in the sections below.

C.  The FEIS lacks site specific analysis

Chapter 3 of the FEIS, Affected Environment and Environmental Consequences, generally lacks the site-specific analysis required by NEPA at the project level.  According to the FEIS, “the primary data source used for this analysis was existing GIS data, collected from past surveys and inventories.” It is clear, however, from the analysis throughout Chapter 3, the GIS data was of an inappropriate scale to provide the site specific analysis required.  Data sheets were not completed for all routes designated and many routes were, in fact, designated despite recommendations to the contrary, and without explanation. 

The second source was route evaluation forms.  Route Evaluation forms were completed for non-system routes and ML-1 roads proposed for change to ML-2.  Existing ML-2 roads were not evaluated, despite the knowledge that ML-2 roads are causing direct and indirect, as well as cumulative impacts on water quality, wildlife and non-motorized recreationists. Nor did the forms include all the relevant criteria recommended by the Guidebook. [14]

The lack of site-specific analysis is also clear from the assumptions at the beginning of Chapter 3 of the FEIS: 

Assumptions [15]

• For this analysis, the following assumptions were applied in all sections below:

• Public education and enforcement of regulations will generally limit public travel to designated routes.

• Routes with fixed barriers are closed and are expected to revegetate.

• Roads designated for public wheeled motor vehicle use are subject to hazard tree removal.

• NFS roads designated for public wheeled motor vehicle use will be maintained, as needed.

• Trails designated for public motor vehicle use will be maintained, as needed.

• NFS roads and trails are in an acceptable condition, unless information exists to the contrary. This is based on the fact that most NFS roads and trails were constructed with engineering design.

• Unauthorized routes may not be in an acceptable condition, unless site specific information exists to the contrary. This is based on the fact that unauthorized routes were created without engineering design.

In fact, many NFS road and trails on the Eldorado National Forest are in deplorable condition, due to a lack of maintenance and use in wet weather.  There is also a subgroup of vehicle operators whose apparent intent is the destruction of the route and surrounding area.[16]  The law enforcement section of the analysis points out that use of authorized routes continues, despite the closure order. 

D.  The FEIS Failed to analyze a full range of Alternatives

One of the most glaring errors in the FEIS is the failure to adequately address alternatives to the proposed action.   As you know, this requirement is “at the heart of the EIS.”  40 CFR § 1502.14  (Agency must rigorous and objectively evaluate all reasonable alternatives in EIS.)    Here, the Eldorado has failed to “rigorously” explore reasonable alternatives, rejecting ones that are consistent with applicable law governing OHV use and travel routes throughout the forest.  The range of alternatives analyzed is extremely narrow; all action alternatives provide high levels of vehicle access on native surfaced roads.  This is borne out by the “relative risk analysis” results, which find little to no discernible differences in the alternatives. 

One has only to look at the Motorized Density Alternative maps (FEIS, p. 320-323) to realize how similar the action alternatives are.  They are almost identical, and useless for purposes measuring differences in the alternatives.

The lack of significant differences in the average size of undissected old forest patches between the alternatives also points to the failure of the FEIS to analyze a broad range of action alternatives.  The smallest average size old forest patch in Old Forest Emphasis Areas is in Alternative B: 25.6 acres.   The largest average patch is 30 acres, in Alternative E, a difference of only 4.4 acres. 

Under every alternative, a moderate to high percent of deer critical winter range habitats on NFS lands are potentially influenced by motorized routes.  The Grizzly Flat herd critical summer/fawning habitat is severely impacted under every alternative.

Our request for an alternative that met all Riparian Conservation Objectives was perfectly reasonable, and the Eldorado’s failure to do so violates NEPA.

The FEIS should also have analyzed an alternative that included physical closure and restoration of undesignated routes.  The analysis assumes public education and enforcement of regulations will generally limit public travel to designated routes, a delusion not supported by experience or the record.



1. The FEIS fails to disclose the information necessary for a reviewer to understand the impact of the project. 

According to the FEIS, the project is within a designated non-attainment area for state standards PM10 and ozone.  For federal standards, the project is designated in the severe non-attainment category for ozone.  A non-attainment designation indicates that the air quality violates an ambient air quality standard.  In federal non-attainment areas, the Clean Air Act requires a “conformity determination” when threshold levels are exceeded.  We can assume threshold levels are exceeded for PM10 and ozone, since El Dorado County is a non-attainment area; but Table 3-A.2 (Average daily emissions – 2005) doesn’t disclose average daily emissions for ozone or lead.

2.  While the FEIS discusses climate change, it fails to discuss the impacts of this project, individually or cumulatively, on global warming. 

3.  The FEIS and ROD provide no mitigations to reduce the impact of the project on air quality.

The world is looking for leadership to begin addressing climate change.  The National Forest System includes as many road miles as the national highway system and the Forest Service has a moral responsibility to exercise its authority to address greenhouse gas emissions on National Forests, both locally and nationally, and particularly from OHV use. 


1.  The Geology section of Chapter 3 of the FEIS violates NEPA because it fails to analyze, or even mention, Alternative Modified B.

2.  The Geology analysis lacks site-specific analysis of routes that are designated

The FEIS states, “The two conditions that have the most influence of slope instability are 1)hillslopes with gradients greater than 57% and, 2) presence of springs.”  [17]

A GIS exercise was completed to measure road or trails lengths that crossed hillslopes with these two conditions.  Under Environmental Consequences, the FEIS concludes, “There are no direct, indirect, or cumulative effects from any of the alternatives because geologic hazards relative to roads and trails evaluated at this scale (1:24000) are not measurable.” (Emphasis added.)

The fact that effects are not measurable at the macro scale is not relevant.  No site- specific field checking was done on any of the routes that met the two conditions; had routes been field surveyed, some routes would have been found unstable.  One example is Hunter’s Trail (14E09) which meets both the conditions for slope instability and has, in fact, has suffered landslides.  This trail frequently, and at present, has sections that are impassable to anyone other than a hiker, due to landslides.  (See photos in Appendix.5)


1.  The Chapter 3 Soils Analysis lacks site-specific information

The designation of any road or trail for OHV use is a project level decision and requires site-specific analysis.  Instead, the ENF has produced a programmatic analysis that fails to provide the required site-specific analysis and is, in fact, even less specific than the Landscape-level analyses prepared for some watersheds. 

The Soil Resources chapter is replete with statements that point out the need for, as well as the lack of, site-specific analysis:

“The Mesic zone includes a large portion of the motorized routes, including many NFS ML-1 and ML-2 roads.  Soils are generally deeper, finer-textured, and susceptible to rutting and compaction.” [18]

The FEIS should have identified specific roads in the Mesic zone that are currently or potentially at risk for rutting and compaction.

The Frigid zone has fewer motorized routes than the Mesic zone and most 4WD routes occur in this zone…The effects of public wheeled motor vehicle use on the soils in this zone are typically related to 4WD routes, to late fall damage to drainage structures such as waterbars or rolling dips, to vehicle use in meadows and riparian areas, and to trail capture of sideslope runoff.” [19]

The FEIS should have identified which specific routes are suffering late fall damage to drainage structures, vehicle use in meadows and riparian areas, and trail capture of sideslope runoff.

“The effects of public wheeled motor vehicle use on the soils in this (Cryic) zone are typically related to erosion of shallow soils, inadequate drainage, and vehicle use within wet meadows.”[20]

The FEIS should have identified which routes are suffering erosion of shallow soils, inadequate drainage, and vehicle use within wet meadows.

“Drainage structures are particularly susceptible to damage during the wet season by motorized vehicles.”[21]

The FEIS should have noted which routes are suffering damage to drainage structures during the wet season.

“The long sustained gradients of trails converted from roads demand more attention to drainage.” [22]

The FEIS should have identified which trails were converted from roads and suffer drainage problems.  Site-specific analysis is needed to determine if these specific trails suitable for addition to the system.

“Unauthorized routes … lack drainage structures, roll the grade only by chance, and may include unsustainably steep gradients.  Because unauthorized routes were not constructed, treads are in loose topsoil rather than well-compacted subsoil.  As topsoil is eroded, treads become entrenched, concentrating runoff and resulting in deeper erosion.”

The FEIS should have analyzed whether the unauthorized routes being designated have acceptable drainage structures, contain unsustainably steep gradients, loose topsoils, rutting and erosion.

“Mechanical displacement becomes more significant as route gradients become excessively steep.  Mechanical erosion and soil loss by dusting are problems on unauthorized routes because treads in surface soils are high in organic matter and generally not well compacted.”[23]

The FEIS should have identified which trails segments are excessively steep.

The FEIS does not disclose whether any route designated in Modified B was analyzed for any of the limiting conditions described above.  We do know that routes were not excluded from designation because of erosion, susceptibility to rutting, damage to drainage structure, long sustained gradients or steepness, as routes were only eliminated for non-conformance with LMP standards. [24]

Notably, the Soils analysis was based not on site-specific analysis of routes, but

upon a comparison of seasonal closures during wet weather period and the following information collected from the GIS database:  soils susceptible to gully erosion, total miles of routes open by alternative, and condition of native surfaced roads based on field assessments.  Since sustained, steep gradients are also an indicator of the risk of erosion a query of routes with gradients of 15 percent or greater and 200 feet or more in length was attempted.  It was unsuccessful due to limitations in the data base.[25] (Emphasis added.)

Not designating routes in poor condition would remove from the system routes that require high maintenance. This would allow more effective use of limited maintenance resources. However, the condition surveys did not specifically address causes, so some poor condition ratings could be due to a lack of maintenance, and not necessarily due to poor location.[26] (Emphasis added.)

It is clear that the site-specific information required for the appropriate designation of routes for vehicle use was not used, a violation of NEPA, the Executive Order 11644 and the Travel Rule.

2.  Alternative Modified B will not remedy existing problems with roads, nor address future problems.

a.  There is insufficient funding for maintenance of roads.

The Soils Resources section discloses existing problems with roads generally:

“The current poor condition of many roads and trails shows that maintenance has been inadequate in the past. The reduction in timber harvest has had a major effect on road condition, especially NFS ML-2 roads. These roads received regular maintenance when they were used as timber haul roads. When there was logging activity, NFS ML-2 roads were also closed during the wet season. With the reduction of the timber program there has also been a decline in Forest Service road maintenance. The lack of maintenance has allowed drainage structures to deteriorate, putting many NFS ML-2 roads at a high risk of failure under a major storm event. The cumulative effect of these actions has been erosion and deterioration of roads and an increased risk of failure.” [27]

It is clear the existing serious problems with the Eldorado’s road system will continue under Modified B.

The FEIS acknowledges it has insufficient funding to maintain the system designated in Modified B.  It suggests it can get funding from other sources, including State OHV grants.  Speculative sources of funding and volunteerism are not substitutes for budget appropriations.  Furthermore, SB742 gives extra consideration to grants for routes “that improve facilities that provide motorized access to non-motorized recreation opportunities.” [28]  This language gives priority to unpaved level 3 roads suitable for passenger vehicles, not roads and trails only drivable by high clearance vehicles, ATVs and motorcycles.

The Forest has historically encouraged OHV use in order to get user support for Green Sticker funds.  This decision is clearly a continuation of that relationship.  One is reminded of the recent 9th Circuit Court decision overturning the 2004 Sierra Nevada Forest Plan amendment, ruling that the Forest Service should have looked at other alternatives to fund fuels projects than by cutting large, fire resistant trees. .  (Center for Biological Diversity v. Rey, 2008 DJDAR 6962, issued May 14, 2008.)

Similarly, the Eldorado has encouraged OHV use, knowing it is causing severe resource damage, in order to qualify for state OHV funds.  It should look at other alternatives, including appropriated funds, to properly manage vehicle use, free from the influence of the OHV industry, and not dependent on timber operations to provide maintenance on its roads.  ML-1 and -2 roads were built for timber projects; if no longer needed, they should be de-commissioned and restored, as was the original intent.  The occasional use by recreational vehicles is insufficient reason to leave open every former timber road.  It makes no sense, either economically, or more importantly, ecologically.

b.  The proposed closure period is not sufficient to protect roads from wet weather use and damage.

The Forest Supervisor decided to implement a January 1 through March 31 seasonal closure, saying it would, “provide protection to native surface roads and trails by minimizing rutting caused by vehicle travel on saturated roads…”  He selected this closure period because “it protects the roads and trails from damage during the periods they are most susceptible to impacts, yet minimizes impacts on public access to the forest.”[29]

This closure would only affect native-surfaced ML-1, ML-2 roads and trails; surfaced roads would remain open year-round.  The purpose of the closure is to: 1) protect drainage structures from damage; 2) protect road/trail treads from damage; and 3) minimize impacts to water quality. [30]

Evidence in the FEIS does not support the Forest Supervisor’s conclusion that a 3-month closure protects the roads and trails from damage during the periods they are most susceptible to impacts.  The 3-month closure would only protect roads and trails from damage during critically dry years, which occur every 6 to 7 years.  One of every 3 years is considered to be a wet year.  “Normal” to “above normal” years occur 50% of the time; “below normal” to “critically dry” the other 50% of the time.[31] 

During the scoping period, the public was told that it was more practical to adopt a longer closure, with provision for shortening it, should conditions warrant.  This strategy would provide the necessary protection when on the ground conditions necessitate closure.  The ROD makes no provision for extending the seasonal closures to protect the roads and water quality during normal to wet years.  Even if it had, the record of the Eldorado with regard to implementing wet weather closures, as required in the LRMP, is abysmal, and the historical failure to comply with the LMP has resulted in resource damage, as documented in the FEIS:

The Frigid zone has fewer motorized routes than the Mesic zone and most 4WD routes occur in this zone…The effects of public wheeled motor vehicle use on the soils in this zone are typically related to 4WD routes, to late fall damage to drainage structures such as waterbars or rolling dips, to vehicle use in meadows and riparian areas, and to trail capture of sideslope runoff.” [32] (Emphasis added.)

“Drainage structures are particularly susceptible to damage during the wet season by motorized vehicles.”[33] (Emphasis added.)

“The elimination of vehicle traffic on a road or trail near a stream during periods of wet road conditions will result in less sediment delivered from the road to the stream. Vehicle use on wet roads tends to cause ruts and damage to the roads, which tends to increase erosion of sediment from the road during rainfall events and periods of snowfall.”[34] (Emphasis added.)

 The likelihood of the forest having the personnel to go out and examine roads and trails (given the skeleton staffing at this time of year) is slight. The Forest Supervisor could, and should, have adopted a seasonal closure adequate to protect forest resources, at the very least, in normal years. 

The Forest Supervisor wanted to minimize the time native-surfaced roads and trails are closed, in deference to the off-road community.  There is no analysis of the impacts of this decision.  The FEIS should have weighed the benefits of the shorter closure to off-road users against the likelihood of environmental damage.  Without analysis to defend the abbreviated closure, this decision is arbitrary and capricious and an abuse of discretion.

D.  Hydrology and Aquatic Resources

1.  The FEIS and Rod fail to meet the Purpose and Need of the Sierra Nevada Forest Plan Amendment (SNFPA). 

Specific goals of SNFPA were to:

            1) Protect and restore desired conditions of aquatic, riparian, and meadow ecosystems in Sierra Nevada National Forests; and

            2) Provide for the viability of species associated with those systems.

Under Alternative Modified B, aquatic resources will continue to be impacted

A.  Modified B has the highest number of kilometers of roads and trails of all the action alternatives;

B. Modified B has the highest number of motorized route stream crossings.

C. Modified B needlessly and without regard to protecting or restoring riparian systems, designates routes for motor vehicles in 74 meadows.[35]

2.  The FEIS analysis of impacts to hydrological and aquatic resources is incomplete and flawed.  As a result, Alternative Modified B does not minimize impacts to hydrological and aquatic resources.

a.  Hydrological and wildlife impacts from the LMP amendments to allow routes in meadows are not analyzed.

b.  There are many routes through and adjacent to meadows that are not disclosed or analyzed. (See Sensitive Plants section of this appeal.)

c. Long-term impacts to meadow-associated species are inadequately addressed. There is increasing scientific evidence that the negative impact of roads on wetland biodiversity can take decades to become evident.

“Species loss is unlikely to occur immediately. Rather, populations of susceptible species are expected to decline gradually after road construction, with local extinction occurring sometime later.”[36]

“Considerable time may elapse between road construction and local extinction of wetland populations, leading to reductions in species richness.”[37]

3.  The FEIS fails to provide adequate site-specific analysis of the impacts on hydrological and aquatic resources from designating specific level 1 and 2 roads and trails for OHV use

Hydrological analysis in the FEIS was largely based on GIS data, at a scale too large for the purpose.  As a result, analysis is based on incomplete data and flawed assumptions.  The majority of aquatic features in the ENF have not been surveyed in the past 10 years for overall condition and ecological health.  Results from a small number of aquatic features from 2004 to 2007 showed that 60% of the surveyed stream reaches were receiving excessive amounts of sediment and 90% of the meadows were functioning-at-risk or non-functional.[38]

According to the FEIS, “Ephemeral streams were not included in this analysis for three reasons.  The results would have been erroneous. A large number of the streams in the GIS layer that are shown as ephemeral streams are not actually ephemeral streams on the ground - they are draws, swales, or upland areas.[39]

The FEIS should have used site-specific information based on field observations to detect impacts to ephemeral and intermittent streams from roads and trails.  Instead, because the analysis depended on inadequate GIS data, it chose not to consider impacts to ephemeral streams.  This violates NEPA and FLPMA, and NFMA.

Had the forest competed the site-specific analysis NEPA requires, the EIS would disclose which roads and trails are currently, or would potentially, impact perennial, ephemeral and seasonal streams.  The ENF had some information available to it to do so. Data sheets for some streams were completed by hydrology staff.  A high number of these data sheets indicated impacts from trails to streams and riparian areas. The Forest Supervisor has chosen to designate many of these same routes for OHV use without explanation, other than his desire to provide “a high level of motorized opportunities and access across the Forest.”  The Decision ignores the specialist recommendations, and without the site-specific analysis required by NEPA and the Travel Rule[40] 

It is also apparent the forest had, but declined to use, information on ephemeral streams.  For example, the ROD designates a user-created trail, NSR10N46C, which crosses a seasonal stream.  This stream is not indicated on the project maps.  It is, however, clearly shown on a map for the Marshall Mine fuels reduction project.[41] Had the analysis been done at the appropriate scale, the EIS would have documented this seasonal stream, and analyzed the impacts of the proposed new route. 

The intent of NEPA is to disclose potential impacts from an action, not simply to display differences between alternatives.  Without site-specific analysis, the EIS has no basis to conclude that none of the Eldorado’s ephemeral streams that may be impacted by vehicle use do not contain aquatic habitat that is necessary for the survival and reproduction of TES species.

4.  The FEIS analysis is based on flawed assumptions, which render the conclusions invalid.

a.  “ Ephemeral streams generally do not contain aquatic habitat that is considered necessary for the survival and reproduction of threatened, endangered, and sensitive (TES) species. The risk of adverse effects to the aquatic habitat of perennial and seasonal streams - not including ephemeral streams - is adequate to characterize relative differences between the alternatives.”[42]

First of all, the EIS doesn’t explain the rationale or legal or scientific basis for using this standard for analysis. Under the Clean Water Act all native aquatic and riparian plant and animal species must be protected from the effects of water pollution, which includes sediment.

The importance of ephemeral streams is well-documented and goes far beyond maintaining viability of TES species. The Sierra Nevada Ecosystem (SNEP) Report, which resulted in the Sierra Nevada Plan Amendment, includes a chapter detailing the importance of ephemeral streams. This document is in the project record. The chapter explains the importance of aquatic invertebrates in the ecosystem, and the importance of “temporary” water to the aquatic invertebrates.  According to the SNEP report:

 “In addition to their importance for unusual vertebrates, temporary habitats can be areas of high invertebrate biomass and important spawning areas for fish.”

 “The greatest threats to temporary aquatic habitats at present are logging operations and roads.  These habitats should be treated as if they were permanent in terms of management protection:  they are the habitat for species restricted to temporary water.  Furthermore, intermittent or ephemeral streams connected to a permanent stream system are just as capable of transporting sediment downstream into larger streams as are permanent streams.[43] (Emphasis added.)

In a letter to the Board of Forestry, Nancy Erman and Don Erman, (both formerly with the U.C. Davis Department of Wildlife, Fish and Conservation Biology; Don Erman was Team Leader for the Sierra Nevada Ecosystem Project), wrote,

“However, temporary streams in the western coastal states contain a diversity of aquatic invertebrate species specifically adapted to annual dry periods, and some are even used by fish as spawning areas. Furthermore, some such streams are highly productive and provide food for a diverse group of aquatic, riparian, and terrestrial organisms. Until and unless so-called Class III streams are sampled by a biologist during wet conditions, there is no way to make a judgment that no aquatic life is present. Eggs and dormant stages of invertebrates are present in many temporary streams during the dry season.”  (Emphasis added.)[44]

In this same letter, the Ermans note, “Sediment inputs from temporary streams into permanent streams can be significant.”

“Accepted River Continuum Concept theory recognizes that streams are a continuous gradient of physical variables from the headwaters to the mouth and that what happens upstream is inextricably linked with conditions and assemblage of biota downstream.  Further, small streams are more affected by contiguous terrestrial conditions that are large streams.”   

“The omission of buffers of any kind on Class III streams will not only affect the physical condition and biota in and near these streams, but will also likely fail to provide desired conditions on fish bearing streams.” 

“There is no scientifically based reason to provide less protection for non-fish bearing streams than for fish bearing streams.[45]

II. The Riparian Conservation Objectives Analysis is flawed.

As pointed out above, ephemeral streams were excluded from the Riparian Conservation Objectives Analysis. Riparian Conservation Areas include an area 300 feet on each side of perennial streams and 150 feet on each side of seasonally flowing streams, including ephemerals with defined stream channel or evidence of scour.  The RCA width and protection measures of other hydrological or topographic depressions without a defined channel are determined through project level analysis. [46] (Emphasis added.)

The Eldorado did not have legal discretion to exclude ephemeral streams from its RCO analysis. Because it did not analyze ephemeral streams, the RCO is flawed.  For the same reason it may not conclude Alternative Modified B meets all of the RCO’s.[47]

E.  Range

I.  The Range analysis lacks site specificity.

The need for, and the lack of, site specific analysis is also apparent in the FEIS analysis of range.  In table 3-E-1, the route factors identified should have been applied to individual routes.  The failure to do so resulted in the designation of at least one route with specifically identified range issues, but for which the FEIS provided no discussion or explanation.  A letter in the project file from permittee John Miles details problems with route 8N55D, including a gate that was frequently left open.[48]  This route was designated under Modified B, despite the permittee’s request for its closure.  Further, there is no indication his request was even considered in the analysis.

Site specific analysis would have identified routes on allotments that resulted in livestock avoiding forage areas, reduction of forage, open cattle gates, and routes in meadows. 

F.  Sensitive Plants. 

I. Sensitive plants will continue to be impacted under Modified Alternative B, resulting in unsustainable losses which contribute to a trend towards federal listing. 

1. The EIS failed to include site-specific field surveys.

Sensitive Plants are those species that are viable candidates for listing under the Endangered Species Act. There are 21 sensitive plants that meet this criterion, either known to occur or thought to occur, near the routes being analyzed. Of these 21 species, nine have been located within the ENF. Five of these (and their habitats) are considered to be the most at risk from the impacts due to vehicle traffic. These are: El Dorado manzanita, Kellogg’s lewisia, Pleasant Valley mariposa lily, yellow bur navarretia, and Parry’s horkelia. This is based on the fact that several occurrences of these species are present along routes designated under the decision, and impacts from motor vehicles to one or more occurrences have already been documented.[49]

The FEIS discloses that no site-specific surveying was conducted for the 21 species along the routes analyzed for the preparation of this EIS.[50] This appears to violate the requirement for site-specific analysis in the federal court order which preceded this EIS.

Seven species were added to the sensitive species list for ENF in 2006, and the Forest has not developed knowledge concerning their presence or viability. Despite a lack of information, no specific surveys for any these species took place in support of the analysis in this EIS. Five of these plants are specifically associated with moist habitats such as occur in meadows, seeps, fens, and streams, habitats which have been identified as particularly at risk from inappropriate OHV damage. Several known occurrences of these species have documented impacts from routes designated under this plan.

Site specific surveys must be conducted prior to making an informed determination about the environmental impact of the proposed plan, as required by the forest plan and Forest Service protocol.   

2. The EIS underestimated the impact.

a. No information was provided in the EIS as to the current population trend, status or viability of any of the sensitive plant species in the analysis area. Conclusions about impacts to these resources from the proposed action cannot be drawn without reference to their current status.

b. The FEIS concludes that although there will continue to be impacts to six sensitive plant species, the proposed action will not lead to trend for federal listing for these or any other species. This conclusion is not supported by the information provided in the FEIS.  

Twenty-eight percent of sensitive plants known to occur on routes have documented impacts in the existing records for the ENF.[51] In addition, had site-specific field surveying as required by Forest Service policy taken place, additional impacts would likely have been discovered. Nevertheless, even without the required field surveying, 28 percent represents a significant level of impact to populations of sensitive plants which occur near routes.

The purpose of the Sensitive Plant program is to ensure that these rare species do not become listed—that they are not further reduced in numbers, and populations remain viable. Listing under the ESA can be avoided only if impacts to sensitive plants are also avoided. Any on-going and repetitive activity which reduces habitat quality and quantity, or which kills sensitive plants directly or indirectly, will necessarily contribute to a trend to federal listing for the species. Unless the activity is stopped and habitat restored, there can be no other conclusion.

In fact, the FEIS analysis determined that there will continue to be impacts to sensitive plant populations, and Modified Alternative B is the second most damaging alternative after the no-action (Alternative A). Modified B may result in loss of at least 15 percent of the sensitive plant occurrences known to occur within the analysis area on the ENF.[52] This is not an acceptable outcome, and violates regional and national policy for management of sensitive plant populations.  

This alternative also proposes the highest mileage of routes available for public wheeled motor vehicle use of all other action alternatives (FEIS, p. 2-9). The plants at risk may be killed or harmed from OHV impacts, either by being run over or through alterations in habitat from compaction, altered hydrology, erosion, temperature changes, or through the introduction and establishment of non-native weeds. The potential for impacts is directly related to motorized traffic through sensitive plant habitat; therefore, motor vehicle impacts in such habitats cannot be mitigated unless the road is closed to such uses. No supporting documentation of the efficacy for any of the mitigations is provided, other than to show that mitigations have not been effective in the past. Further, a mere listing of mitigation measures is insufficient to qualify as the reasoned discussion required by NEPA. 

Cumulative impacts disclosed in the EIS suggest that impacts to sensitive plants will continue to increase from motorized recreation:

Cumulative effects to sensitive plants and their habitats must also presume a continued increase of motorized recreation. A recently released State Fuel Tax Study (California Department of Parks and Recreation 2006) states that annual registration for nonstreet-licensed vehicles increased by 112 percent during the time period from 2001 to 2006. For the purposes of this effects analysis, potential for impacts to sensitive plant habitats is expected to increase at rates similar to the increase in use of off-road vehicles.[53]

Such continued losses are not sustainable and will likely contribute to federal listing for some species. Other sources of adverse impacts to sensitive plants are also disclosed in the EIS and include:

[S]oil disturbance from logging and other fuels treatments, the Rock Creek OHV trail

system (where four occurrences of Parry’s horkelia have been affected by roads or OHV trails),

wild fire suppression activities, fire salvage logging (USFS and private industry), emergency

BAER treatments, reforestation activities including proposed vegetation release treatments

(mechanical, manual, and chemical), montane meadow grazing, road construction and

maintenance, existing road conditions, and existing and anticipated noxious weed infestations and

control treatments (see Appendix E for specific information) within the described analysis area.[54]

Another source of threat for sensitive plants is climate change. While rapid climate change is likely to cause significant adverse impacts to all sensitive species because of their restricted range and niche habitats, increased temperature and drought may be especially risky for species that require meadow or moist habitats. For example, the 2001 Sierra Nevada Forest Plan Amendment (SNFPA), states that three-ranked hump-moss (Meesia triquetra) “may be extremely sensitive to alterations in meadow hydrology, especially when accompanied by an increase in temperature. The overall trend for this moss is that it is in decline.”[55] The ENF travel plan EIS fails to consider and analyze the probable adverse cumulative impact of climate change on this or any other sensitive plant species likely to be at risk from OHV travel in suitable habitat.

The Sensitive Plant BE does discuss the effects of vehicular use on soil temperatures. Daytime soil temperatures can be raised by as much as 7 degrees Fahrenheit on compacted OHV routes. Combined with the effects on soil moisture and water infiltration from off-road vehicles documented on page 35-36 of the BE, climate warming may cumulatively increase the threat to sensitive plants from on-going OHV use in sensitive plant habitats.

In addition, some noxious weeds like yellow star thistle are likely to move to higher elevations with increasing temperatures due to climate change. This likelihood and its impact upon sensitive plants were not addressed in aggregate with other cumulative impacts.

The issue of climate change must be addressed prior to making conclusions about the impacts of the project on sensitive plant species, or the potential for the project to contribute to a trend to federal listing.

3. Inadequacy of mitigations.

The mitigations provided—seasonal closures, and requirements to park close to the shoulder—are important mitigations that should be the standard for all roads through the forest. Signage (after the fact, if impacts are discovered) is suggested as a mitigation but there is no evidence in the EIS demonstrating the feasibility or documented efficacy of the method.  In fact, in our comments on the DEIS,we provided photos showing illegal use of vehicles on the ENF, despite signs.  We include two such photos in Appendices 9 and 10 to this appeal.[56]

Signage may even result in intentional vandalism, a possible outcome that was not analyzed in the EIS. We pointed out in our Comments on the DEIS that one of only two occurrences of El Dorado manzanita was subjected to repeated vandalism by OHVs, despite efforts to restore the area and block entrance.  OHVs drove over plants to enter the area, and moved boulders.

On the Eldorado, there are documented impacts to plants from OHV use, including to the Pleasant Valley Mariposa Lilly in the Elkins Flat/Gold Note area.

The FEIS states, “At least 60 percent of known occurrences are unlikely to be adversely affected from public wheeled motor vehicle use due to inaccessibility factors.”  The statement is conclusory and unsupported and, in fact, contradicted by information in the Sensitive Plant BE, which states, “Five of these (and their habitats) are considered to be the most at risk from the impacts due to vehicle traffic. These are: El Dorado manzanita, Kellogg’s lewisia, Pleasant Valley mariposa lily, yellow bur navarretia, and Parry’s horkelia. This is based on the fact that several occurrences of these species are present along routes designated under the decision, and impacts from motor vehicles to one or more occurrences have already been documented.[57]

Illegal OHV use “obliterated” restoration work in the Upper Meiss Area.[58]

The possible use of barriers is also suggested as a potential mitigation, but as noted in the Sensitive Plant BE, previous efforts have not been successful (p. 34). Finally, the implementation strategy outlined on pages 2-20 does not contain a calendar or time frame. Given the previous history of OHV management on the ENF, there is no assurance that these important goals will be carried forward past the decision. In sum, there is no evidence in the record to support the conclusion that such mitigations will be sufficient to prevent the types of impacts that have been documented to occur to rare plant populations on the ENF to date. If mitigations are not likely to be effective, the conclusions of no trend towards federal listing is not supported. 


4. Analysis of impacts specific to meadow and riparian habitats is not complete.

Table 2-7 on page 2-11 of the FEIS lists the segments of routes which total 4.8 miles of meadow habitat which will be permitted under Modified B. However, many other route segments also impact meadow habitat that were not listed. This is a significant omission. Starting with site-specific field surveys, these segments must be evaluated and analyzed in a supplemental EIS. A partial sample of route segments which pass through or end in meadows includes the following:

10N14A and B; 10NY04; 14N06; 14N27; 10N17; 10N03; 10N04; 17E28; 09N13; 11N26E; 10N26C; and 17E16. Additional segments should be identified using a robust GIS analysis followed by field assessment and GPS documentation.  

The FEIS proposes designating 4.8 miles of route segments which pass through or end in meadow habitat, which would require “non-significant plan amendments” to the forest plan. The forest plan currently prohibits motor vehicle travel on meadows. Nothing in the EIS supports the conclusion that the impacts from these amendments are not significant. No data and or site specific field surveying is provided to support that conclusion. In fact, Table 3.D-1 of the FEIS suggests that most aquatic features, including meadows, on the ENF may be impaired or degraded already, which would reduce their function as suitable habitat for sensitive plants:  

           The majority of aquatic features in the ENF have not been surveyed in the past 10 years for overall condition and ecological health. 

           Results from a small number of aquatic features from 2004 to 2007 showed that 60% of the surveyed stream reaches were receiving excessive amounts of sediment and 90% of the meadows were functioning-at-risk or non-functional.[59]

As noted in the sensitive plant biological evaluation, eleven species of sensitive plant taxa may occur in moist habitats such as meadows, fens, seeps, springs, and streamside zones, yet these have not been surveyed to determine the presence or absence of the species, or their condition and population trend. One hundred acres of meadow habitat for these species may be adversely affected by implementation of Modified B.[60] Five of these species were added to the ENF list in 2006. Thus, no substantial body of historical records from previous surveys was available, as there were for the other sensitive plants. This lack of information should have motivated the agency to conduct the required surveys. 

Four species in this habitat type have been documented on the ENF: one occurrence of Bolander’s bruchia in a fen near the headwaters for Strawberry Creek; two occurrences of three-ranked hump-moss within two miles northeast of Ice House Reservoir; three occurrences of subalpine fireweed from Schneider’s Cow Camp east to the headwaters of Strawberry Creek; and mountain moonwort near a small stream on a meadow west of Hartless Mountain (Sensitive Plant BE, p. 27-28). The unique properties of meadows, seeps, and fens and other moist habitats were documented in the EIS to be especially vulnerable to harm from OHV impacts.

Three populations of subalpine fireweed are documented within 50 feet of 10N13, and vehicle impacts have been documented for two of these.[61] This segment of road includes 23 wet crossings which were previously documented by CSNC in our comments on the draft EIS. The inclusion of route 10N13 in the Strawberry Creek area through multiple meadow systems, seeps, and streamlets is inconsistent with the governing forest plan absent site-specific field surveys to determine presence of the 11 species associated with these special habitats.

Similarly, the inclusion of 12NY15 which passes through a large meadow north of Union Valley Reservoir is not acceptable without further analysis including field surveys for sensitive plants. 

In addition, the FEIS failed to include ephemeral, or intermittent streams, in its analysis of impacts to riparian resources. The justification provided for this in the EIS was not supported by citation to scientific documentation: 


Ephemeral streams generally do not contain aquatic habitat that is considered necessary for the survival and reproduction of threatened, endangered, and sensitive (TES) species.

The risk of adverse effects to the aquatic habitat of perennial and seasonal streams - not including ephemeral streams - is adequate to characterize relative differences between the alternatives (p. 3-37).

The National Environmental Policy Act requires agencies to “make explicit reference by footnote to the scientific and other resources relied upon for conclusions in the statement”(40 CFR §1502.24). Failure to include the many miles of ephemeral streams on the ENF in the hydrology analysis may significantly understate the impacts on riparian resources from OHV travel.

5. Failure to identify Sensitive Plant populations. 

The map showing the distribution of sensitive plants included in the EIS did not contain information for the current sensitive species list. It fails to locate Bolander’s bruchia, three-ranked hump-moss, Kellogg’s lewisia, subalpine fireweed, or mountain lady’s slipper. The visual presentation of sensitive resources relative to the proposed action should be as accurate as possible. Further, overlaying the route system on the sensitive plant locations displays an inaccurate depiction of the scope of impacts to this resource.    

II. EIS fails to meet policy and regulatory requirements of Forest Plan

Annual monitoring and population trend data is required by the governing forest plan, for all of the sensitive plant species that occur in the analysis area.[62] The EIS did not provide annual monitoring and population trend data to support the conclusions reached for sensitive plant populations on the ENF.  

Standards and guidelines for analysis of rare plants during project assessment include the requirement to:

1). Conduct field surveys for TEPS plant species early enough in project planning process that the project can be designed to conserve or enhance TEPS plants and their habitat, and according to procedures outlined in FSH 2609.25.11.[63]

Impacts to sensitive plants must be mitigated under the current operating forest plan, the Sierra Forest Plan Amendment of 2001 (SNFPA) and the 2004 supplement. The Record of Decision for SNFPA directs the agency to: “Minimize or eliminate direct and indirect impacts from management activities on TEPS plants unless the activity is designed to maintain or improve plant populations” (ROD, Appendix A-29). Modified Alternative B represents the most intensive OHV route designations and will result in the worst impacts to sensitive plants (other than the current status, Alternative A). 

In light of these deficiencies in the analysis, and the documented status of impacts to sensitive plants on the ENF, the Forest Service appeal review team should remand the EIS back to the forest for additional site-specific analysis and mitigations which will result in minimal or no impacts to sensitive plant resources, and which will not result in contributing to a continued downward trend for sensitive plant populations on the Eldorado National Forest.

G.  Noxious Weeds

Roads and trails designated under Modified B were not surveyed for noxious weeds.  Only where routes were surveyed for other projects, such as fuels projects, is information available regarding noxious weeds. [64]   The Sensitive Plant BE thoroughly documents the role of roads and OHV use on the establishment and proliferation of noxious weeds. Modified Alternative B had the second highest level of infested roads analyzed and the second highest risk from weed vectoring. The analysis showed that excluding just one designated route, 11N38, would result in a reduction of 37 percent of infested mileage. Reducing infested mileage would “provide a reduced risk for vectoring of seeds by motor vehicles, and may decrease the spread of weeds to uninfested portions of these routes and other parts of the forest.” (Sensitive Plant BE, p. 55). This route is near the Peavine Research Natural Area, and continued OHV use in this area will likely threaten its research value as noxious weeds continue to be spread throughout the area.

In spite of its significance, this route was not removed from the designated routes. Cumulatively with other risks, OHV use will continue to vector noxious weeds across the forest, presenting an on-going threat to the continued viability of sensitive plant populations.

The current extent of noxious weed on the forest is not adequately analyzed, due to the lack of site-specific surveys.  It is not disclosed how the FEIS arrived at the conclusion only 9.6 miles of weed-infested roadway, given the lack of surveys for this project.

H.  Terrestrial Wildlife

I.  Alternative Modified B will adversely affect almost every species of wildlife on the forest, including Old Forest Ecosystems and Associated Species, in violation of FLPMA and SNFPA Standards and Guidelines. 

The SNFPA adopted Management Goals and Strategies for Old Forest Ecosystems and Associated Species.  Broad goals of the old forest and associates species conservation strategy include “protect, increase and perpetuate desired conditions of old forest ecosystems and conserve species associated with these systems while meeting people’s needs for commodities and outdoor recreation activities.”[65]

The old forest ecosystem strategy includes “a network of old forest emphasis areas managed to maintain or develop old forest habitat in areas containing the best remaining large blocks or landscape concentrations of old forest and areas that provide old forest functions (such as connectivity of habitat over a range of elevations to allow migration of wide-ranging old-forest-associated species).”[66]

SNFPA Forestwide Standards and Guidelines require the Eldorado National Forest to minimize old forest habitat fragmentation and to assess the potential impact of projects on connectivity of habitat for old forest associated species.[67]

Alternative Modified B fails to protect, increase and perpetuate desired conditions of old forest ecosystems.  On the contrary, the Forest Supervisor acknowledges in the ROD that “Modified B provides opportunities for public wheeled motor vehicle use within Old Forest habitat.  Providing these opportunities increases fragmentation of habitat patches, increases the amount of edge effect and increases the potential for disturbance and displacement of old forest dependent wildlife species.  Yet, some Old Forest habitat areas are popular for dispersed forms of recreation.  The Old Forest habitat areas are distributed across the Forest and cannot always be avoided while still providing for public recreation opportunities.” [68] (Emphasis added.)

The Eldorado’s Roads Analysis recommends reducing road densities to improve wildlife habitat:

 Impacts to terrestrial wildlife habitat generally increase as road densities increase.  For this reason, priorities for analysis and action on roads should focus on the 7th field watersheds with the highest density of roads.  Table 7-3 ranks the 7th field watersheds based upon the estimated level of road impact to species.  It is assumed that impacts to terrestrial species are related to overall road densities within the sub-watershed.  No particular roads or road segments were identified in this analysis as resulting in elevated impacts to a particular focal species.  Over time efforts should be made to reduce road densities within areas being managed for the emphasis of old forest habitat conditions (the old forest emphasis area allocation) [69] (Emphasis added.)

Once again, the lack of site-specific analysis is problematic.  There was no analysis of specific “unavoidable” routes, or a disclosure to the public how the Forest Supervisor weighed the value of old forest patches to wildlife against the value for motorized recreation.  The failure to comply with the SNFPA standards and guidelines to minimize old forest habitat fragmentation violates FLPMA.

The lack of significant differences in the average size of undissected old forest patches between the alternatives points to the failure of the FEIS to analyze a broad range of action alternatives.  The average size old forest patch in Old Forest Emphasis Areas in Alternative B is 25.6 acres.   The largest average patch is 30 acres, in Alternative E, a difference of only 4.4 acres.


The lack of a full range of alternatives is also borne out by the small differences in the percent of deer critical winter range and summer fawning affected by each alternative.

The FEIS identifies impacts to deer, due to excessive route density in summer fawning and critical winter range. The ENF LRMP acknowledges the impacts of roads and trails on these important habitats.  However, “average” route density doesn’t provide the site-specific analysis required to designate routes in these or any other areas.  The FEIS should have analyzed each route before designating it, eliminating those that result in unacceptable impacts to these habitats, and reducing density in critical habitat. 

The FEIS also fails to acknowledge cumulative impacts to wintering deer in the Rock Creek area.  With the rest of the forest closed from January through March, the most critical time for wintering deer, it is highly likely OHV use will be directed to the Rock Creek OHV area, which is not subject to the closure, except after storm events.  The entire Rock Creek area is deer winter range, with much of it critical range.  The statement in the terrestrial wildlife section of the FEIS that use will not increase is contradicted by the statement in the Socio-Economic section, which states,

“The seasonal closure would likely impact gas stations, convenience stores, and other retail stores in local communities outside of the Rock Creek area, which remains open for public wheeled motor vehicles most times of the year. Georgetown and other local communities accessing the Rock Creek area may see an increase in their local economies if use becomes concentrated in Rock Creek during the months of the forest-wide seasonal closures…” [70]

Meadow-dependent species

The FEIS and ROD fail to respond to our comments regarding the importance of meadow habitat and its relative scarcity.  This is a critical issue in the FEIS, ROD and this appeal.  In the ROD, the Forest Supervisor states he selected a “small number of roads and trails with very short segment within meadows that allow public wheeled motor vehicle use to provide for a variety of recreation experiences.”  That “recreation experience” has a very significant negative impact on a relatively rare and unique habitat type, which is why the LMP doesn’t allow it.  It is arbitrary and capricious and an abuse of discretion for the Forest Supervisor to condone it.  Further, as we point out in our discussion of the sensitive plants section, there appear to be many more route segments designated in meadow habitat than is disclosed in the FEIS and Rod.

I.  Aquatic Wildlife

A.  The analysis of impacts from vehicles to aquatic wildlife lacks site-specificity.  Conclusions reached in the Riparian Conservation Objective Analysis were based primarily on data obtained from GIS queries.  

The majority of aquatic features in the ENF have not been surveyed in the past 10 years for overall condition and ecological health.  Results from a small number of aquatic features from 2004 to 2007 showed that 60% of the surveyed stream reaches were receiving excessive amounts of sediment and 90% of the meadows were functioning-at-risk or non-functional.[71]

II.  LMP amendments for the designation of routes in meadows require site-specific analysis.

The ENF Land Resource Management Plan (LRMP) does not allow roads in meadows. [72]  Rather than comply with the LRMP, the Forest Supervisor has made “non-significant” plan amendments, to allow the use of vehicles in meadows.  The decision to amend the LRMP was made without site-specific analysis.  There is no analysis whatsoever regarding impacts the use of vehicles is having or will have in the meadows subject to the amendments.  Given that 90% of meadows surveyed between 2004 and 2007 are functioning-at-risk or non-functional, the conclusion that allowing routes through meadows could be done with a minor LMP amendment is arbitrary and capricious.

III.  The FEIS is wrong in concluding Level 2 roads need not be analyzedAs noted in the hydrology and aquatic resources section above,  the failure to include ML-2 roads and ephemeral streams in the RCO analysis results in the analysis being incomplete and its results unreliable.

The analysis of RCO #4 is flawed by virtue of its failure to include ML-2 roads.  While closure of some routes might reduce sediment, that in itself doesn’t equate to meeting the objective.[73]

The ENF has also decided not to identify or analyze the impacts on ephemeral streams, because its GIS data, on which it relies most heavily for its analysis, is unreliable.[74]  SNFPA designates Riparian Conservation Areas 300 feet on each side of perennial streams and 150 feet on each side of seasonal flowing streams, including intermittent and ephemeral streams.  The Eldorado cannot simply dismiss ephemeral streams because it chose to base its analysis on GIS of inappropriate scale for the job.[75] 

IV.  The range of alternatives should have included an alternative that meets all RCO objectives.

The Draft Hydrological and Aquatics BE (May 2007) includes an RCO Analysis that finds none of the Action Alternatives meet all RCO objectives. CSNC noted this in our comments on the DEIS.  Rather than develop an alternative that meets the RCO objectives, the forest and Region changed the criteria for the RCO analysis itself, in order to accommodate Alternative Modified B. [76]

The Sierra Nevada Plan Amendment (SNFPA) final Supplement, signed in 2004, amends the Land Management Plans of the 11 Sierra Nevada-located National Forests.  Building on the findings of the Sierra Nevada Ecosystem Project (SNEP) Report, the stated intent of the SNFPA is to begin to restore old forest and aquatic systems in the Sierra forests.

SNFPA’s Aquatic Management Strategy established nine broad goals  “which are endpoints toward which management moves watershed processes and function, habitat, attributes, and populations.” [77]  The clear intent was to move towards these goals by applying standards and guidelines as projects were undertaken within Riparian Conservation Areas (RCAs) and Critical Aquatic Refuges (CARs). 

The SNFPA identifies five goals: sustain old forest ecosystems; protect and restore aquatic, riparian, and meadow ecosystems; improve fire and fuels management; combat noxious weeds; and sustain lower Westside hardwood ecosystems.

SNFPA also provides a Strategy for achieving the above goals. The strategy for protecting and restoring aquatic, riparian and meadow ecosystems consists of five key elements, including the description of desired conditions for aquatic, riparian and meadow habitats, the allocation of riparian conservation areas (RCAs) and critical aquatic refuges (CARs), which are to be managed consistent with riparian conservation objectives (RCOs) and associated standards and guidelines. 

Another element is the use of landscape analysis as a tool for assessing existing uses and identifying restoration and enhancement projects.  The Eldorado, rather than utilize the goals, objectives, standards and guidelines to maintain and restore aquatic, riparian and meadow habitats, has sought to avoid complying with the standards and guidelines in order to defend a decision that continues to allow vehicles to damage these ecological systems.

 SNFPA Standard and Guideline #92, requires the evaluation of new management activities within CARs and RCAs during environmental analysis to determine consistency with riparian conservation objectives at the project level.    The Eldorado has decided it needn’t analyze impacts of vehicles using ML-2 road when analyzing impacts to RCOs.  It contends years of vehicle use on ML-2 roads, without benefit of that analysis, now relieves it of that analysis burden.

The forest is simply dismissing the order by Judge Karlton in CSNC v Berry that requires that analysis.  Late as it is, this is a new project under NEPA, and the first attempt, albeit inadequate, at analyzing vehicles using dirt roads on the forest.  Standard #92 notwithstanding, SNFPA Standard and Guideline #93 requires review of existing uses for impacts in landscape analysis.  The Roads Analysis and landscape analysis both found ML-2 roads were having negative impacts and needed to be reduced in mileage.   It is arbitrary and capricious to ignore those impacts in order to select an alternative that perpetuates them.

The Eldorado should identify an alternative that reduces total motorized route density.  Species such as the Western pond turtle that are wide-ranging are susceptible to being killed by vehicles.  We actually saw and removed from Rock Creek road a Western pond turtle that wandered up on the road on the day of an enduro.  We reported this to the forest aquatic biologist at the time, with photographs. [78]

The FEIS identifies Alternative Modified B as having the highest number of kilometers of motorized route within Western pond turtle habitat. [79]  This poses an unnecessary high risk of vehicle crushing for this sensitive species.  Routes posing such risk should have been identified in site-specific analysis. 

C.  The FEIS wrongly concludes that Alternatives E and Modified B are equally beneficial to aquatic resources.

The conclusion that Alternatives E and Modified B are equally beneficial to aquatic resources is seriously flawed, since only Alternative E eliminates routes in meadows.  Modified B only exhibits an equal benefit because the criteria established for analysis does not include analysis of ML-2 roads or ephemeral streams.

D.  The Eldorado violated the Endangered Species Act by failing to consult with the USFWS on Alternative Modified B.

This is especially egregious, given that the Biological Evaluation for Aquatic Wildlife determined:  “Modified B of the Public Motor Vehicle Travel Management Environmental Impact Statement may affect and is likely to adversely affect the California Red-legged frog or its designated critical habitat.”[80]


I. The Facilities analysis fails to analyze and disclose the environmental consequences of the alternatives.  The Environmental Consequences section is simply a series of tables showing mileages of the various alternatives and estimated annual maintenance costs.  It fails to make the correlation between lack of road maintenance and environmental degradation.  The connection between unmaintained roads and trails and environmental damage is well-documented.  Roads and a lack of road maintenance have been identified as the major contributor to sediment in forest streams.

II.  The Eldorado’s Roads Analysis recommends decommissioning of level 1 and 2 roads

The Eldorado National Forest Scale Roads Analysis (Roads Analysis) identifies 456.4 miles of Level 3, 4 and 5 roads.  This document also finds that “Road maintenance funding is not adequate to maintain and sign roads to standard.”  According to the Roads Analysis:

Even with the focus on potential minimum road system, the current budget does not cover road maintenance costs. The Eldorado National Forest currently receives approximately $650,000 per year for all road maintenance. To maintain the level 3, 4, and 5 road system to standard would cost approximately $1.5 million. 

The landscape and project level roads analysis process could result in continued reductions of the Forest road maintenance obligations through proper closure or decommissioning of maintenance level 1 and 2 roads

Arterial and collector roads are not being maintained to the standards specified in the 1989 Forest Plan. If this trend continues, the road system will continue to degrade, which will compromise future access on existing roads. [81]

Due in large part to this funding shortfall, there is a need to identify and prioritize the minimum road system necessary for access to and management of the National Forest. If basic annual road maintenance (e.g., drainage maintenance) is not performed, roads have an increased potential for loss of investment and environmental damage. The same is true for deferred maintenance, such as replacing major culverts in perennial streams at the end of their design life. A catastrophic drainage failure will have a direct negative impact on the associated watershed and aquatic health.” [82] (Emphasis added.)

There is no evidence in the FEIS that the Forest Supervisor considered the recommendations in the ENF Roads Analysis.  The failure to utilize that information violates NEPA, as well as the Travel Rule and is arbitrary, capricious and an abuse of discretion.


Forest Service direction for management of IRAs is to provide lasting protection for the IRAs, through the implementation of the regulations at 36CFR294.  In particular, the regulations are designed to maintain the roadless characteristics of the IRAs, as set forth in the regulations.  These characteristics include:  (1) high quality or undisturbed soil, water, and air; (2) sources of public drinking water; (3) diversity of plant and animal communities; (4) habitat for threatened, endangered, proposed, candidate, and sensitive species and for those species dependent on large, undisturbed areas of land; (5) primitive, semi-primitive non-motorized, and semi-primitive motorized classes of dispersed recreation; (6) reference landscapes; (7) natural appearing landscapes with high scenic quality; (8) Traditional cultural properties and sacred sites; and (9) other locally identified unique characteristics.  These IRAs also serve as bulwarks against the spread of non-native invasive plant species (USDA FS, 2000). [83]

The Forest Supervisor has designated roads and trails within IRAs without site- specific analysis. Without this analysis, the public can’t know (nor can the Forest Supervisor) how each route impacts the characteristics described above and in Forest Service Direction.  Nor can we know how the value for motorized recreation was weighed against the value of the IRA for Old Forest Ecosystems, as unfragmented wildlife habitat, for quiet recreation, for water quality, as a bulwark against the spread of noxious weeds, or the other values identified.  Most notably, we can’t know how a route was measured against “locally identified unique characteristics.”

Our DEIS comments included requests for closure of a number of routes in IRAs, for a variety of reasons.  The FEIS fails to respond to those comments, in violation of NEPA.[84]

The Forest Supervisor’s decision to designate routes in IRAs is arbitrary and capricious.


The ROD displays a marked prejudice for motorized recreation, not just over natural resources, but over all other forms of recreation.  The FEIS fails to respond to comments from non-motorized recreationists who noted conflict with motorized use on some routes.  For example, the trails in the Rubicon Canyon have been a source of conflict for years.  Hunter’s Trail (14E09)), was noted in our comments as the most popular trail on the Georgetown District.  It is relatively level, providing a rare hiking experience for those who are unable, due to age or infirmity, to hike most trails on the district, which are fairly steep.  The trail is narrow, prone to landslides and in many places poses safety issues.  There is not room on much of the trail for a motorcycle to pass a backpacker. Without responding to our detailed comments, the ROD designates this and other trails in the Rubicon Canyon for motorized use.  Site-specific analysis would have disclosed these issues and possibly have resulted in a different decision.

The ROD also ignores voluminous comment regarding Lover’s Leap Trail, designating it for motorized use, without explanation, despite the impacts on climbers.  Comments in the project record note that this is a premier climbing experience that is severely impacted by motorcycle noise.

The ROD states, “Some Old Forest habitat areas are popular for dispersed forms of recreation.  The Old Forest habitat areas are distributed across the Forest and cannot always be avoided while still providing for public recreation opportunities.” 

This statement reveals a notable disregard, not just for old-forest-dependent wildlife, but for non-motorized recreation, which is also a legitimate “public recreation opportunity.”  These old-forest areas are largely the same areas identified as Inventoried Road Areas.  They could provide valuable opportunities for quiet recreation as well as old forest habitat. 

The forest is so saturated with vehicle routes, a non-motorized recreationist can only escape from vehicle noise in Wilderness.  The need for quiet recreation was displayed in our DEIS comments; the FEIS and ROD fail to respond to those.  Quiet recreation on the forest is essentially already rationed, by the requirement to obtain a permit to recreate in wilderness.  The FEIS and ROD further reduce the opportunity for quiet recreation, without disclosing the impacts of the decision on non-motorized users. [85]

Noise - The FEIS makes an unsupported assumption that ¼ mile is sufficient distance from vehicle routes to afford a quiet recreation experience.  This assumption is absurd. Past Forest Service analysis has documented that motorcycles can be heard up to a mile away.  This FEIS does not include an analysis of noise, a fatal omission in an analysis of vehicles on a national forest. 


The FEIS throughout assumes education, signing, and maps will result in users staying on designated routes.  This is not now the case and, as use increases, is less likely.  The Forest has promoted “Tread Lightly” for decades; the condition of the forest and the need for the Travel Rule point to the failure of that policy.

A recent Congressional subcommittee hearing on off-road vehicles included testimony from Jack Gregory, Special Agent in Charge, Retired, Southern Region, U.S. Forest Service.  Mr. Gregory testified, “Irresponsible off- roading has become such a menace that it is now the single greatest threat to American landscapes.” He further noted,

“1) the ORV problem is getting steadily worse, with no end in sight; 2) the ORV problem is not just “a few bad apples” -- we are suffering from a major breakdown in attitude from sadly, a high percentage of off-roaders; and 3) route designation without effective enforcement simply will not work and, when done poorly, significantly aggravates problems.” [86]

The law enforcement measures outlined in the FEIS are naïve and inadequate.  A new plan with realistic analysis of the challenges and effective strategies must be proposed.

Enforcing seasonal closures:  The FEIS states “Due to fewer roads and trails allowing public wheeled motor vehicle use, the need for patrols during the seasonal closure period will decrease as the closed roads and trails become physically blocked or gated.”[87]  However, Alternative Modified B does not provide for physically blocking or gating any closed routes.  There will be an increased need for law enforcement, not less.

The successful implementation of any Travel Management Plan will require effective law enforcement.   The Travel Rule and travel management are driven by the need to protect wet soils, sensitive plants, sensitive wildlife habitat, roadless areas, cultural sites, meadows and all other forest resources.  Effective law enforcement is key to the successful implementation of travel management.  The Travel Rule requires the ENF to adopt a system of routes that it can effectively manage, including law enforcement.  The Forest Service should adopt an alternative that physically closes and, whenever possible, restore closed routes.  The plan should include a strategy for effective law enforcement, including a commitment of necessary financial resources, appropriate prioritization for OHV enforcement, and mitigations that encourage lawful behavior, including prosecuting violators to the fullest extent of the law.


The FEIS fails to provide documentation of compliance with the National Historic Preservation Act, 16 USC § 470 et seq., and its implementing regulations at 36 CFR 800 et seq.  Specifically, the FEIS fails to adequately evaluate the adverse effects, as required by NHPA and the Programmatic Agreement among the USDA Forest Service etc. for Designating Motor Vehicle Routes and Managing Motorized Recreation on the National Forests in California. Lack of adequate analysis includes:

Incomplete disclosure - The EIS discloses that the 15,398-acre Mokelumne Canyon of the North Fork of the Mokelumne River has been determined to be eligible for inclusion in the National Register of Historic Places, and is designated a Special Interest Area within the ENF Forest Plan.  The boundaries of this area are not disclosed in the FEIS.  There are a number of roads and trails in the North Fork Mokelumne River watershed that could impact cultural resources.  There is no analysis of how the forest will protect heritage sites in the Special Interest Area. 36CFR §800.5 requires the ENF to assess potential impacts to this area and consult with SHPO.

The FEIS notes that the Alternative Modified B has a “moderate potential to indirectly negatively affect at-risk historic properties due to the number and location of routes and associated use areas.”  There is also a “concern for cultural resource sites not discovered due to such factors as dense vegetation and those sites that are comprised of buried deposits (such as lithic scatters).[88]

The Area of Potential Impacts (APE) for this project include vehicular use areas, such as roads, trails, routes, corridors, stopping points, trailheads, off-route use areas, or other associated areas where maintenance for and motorized recreation occur, or, that are considered for designation.  “For most undertakings, APEs may be restricted to 30 meter wide corridors centered on linear motor vehicle features (i.e., roads, trails, corridors, routes) and 30 meter wide buffer zones around non-linear open areas, trailheads, etc.)[89]  There is no record of surveys of the required APEs being completed. 

The FEIS provides no mitigation for impacts to heritage sites.  There is no explanation for this omission.  “While the Motorized Recreation PA contains direction for monitoring, deferred survey, specialized protection measures, and evaluation and mitigation measures, the amount of heritage work necessary to support these alternatives, would not be difficult or cost-prohibitive.”[90]

Before designating any routes, the forest should complete surveys and put into place mitigation measures adequate to protect heritage sites.


We have already cited to various laws, which we believe have been violated by the Forest Supervisor in the issuance of the ROD and approval of the Travel Plan and FEIS.   Further elaboration of some of these laws is outlined below.

A.  Executive Orders

The ROD and FEIS violate the Executive Orders 11644 and 11989, which set forth requirements for OHV route designation procedures.  We outlined these provision in our comments, and do not find that the FEIS or ROD adequately addresses these criteria, or responds to our comments.

To the extent you believe your FEIS adequately addresses these requirements, you are incorrect, because Executive Order 11644 and Forest Service regulations, however, set a much higher bar for designating OHV routes; routes must be designated in such a way as to minimize impacts to sensitive plants and their habitat.  An attempt to meeting the standards for ESA and NEPA does not satisfy that requirement.  


The FEIS and ROD fail to designate a “minimum system.”  36 CFR §212.5 (Road System Management) requires the Forest Supervisor to “identify the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of National Forest System lands.”  In determining the minimum road system, the responsible official must “incorporate a science-based roads analysis at the appropriate scale.” The minimum system is the road system determined to be needed to meet resource and other management objectives adopted in the relevant land and resource management plan (36 CFR part 219), to meet applicable statutory and regulatory requirements, to reflect log-term funding expectations, to ensure that the identified system minimizes adverse environmental impacts associated with road construction, reconstruction, decommissioning, and maintenance. [91]  The Forest Supervisor, in choosing Alternative Modified B, has selected the action alternative with the highest route mileage, providing no justification except to claim the decision “balances” motor vehicle access with resource protection.   

The Travel Management rule also requires the responsible official to review the road system and identify the roads that are no longer needed to meet forest resource management objectives and that should be decommissioned or considered for other uses, such as trails, giving priority to decommissioning those unneeded roads that pose the greatest threat to public safety or to environmental degradation.[92] 

Despite the identification in the Middle Fork Consumnes River Watershed Analysis of roads that pose a high risk to aquatic resources, the FEIS did not identify those roads, discuss the risk they posed to the environment, or provide any rationale for designating the roads for motor vehicle use.  Where watershed level analysis was completed on the Eldorado, that information was not used to inform Travel Management.  On the majority of the forest watershed analysis was not completed, nor was project-level, site-specific analysis done.

Finally, the Travel Management Rule requires the Forest Supervisor, when designating roads, trails and areas for motor vehicle use, to consider the effects on National Forest System natural and cultural resources, public safety, provision of recreational opportunities, access needs, conflicts among uses, the need for maintenance and administration of roads, trails and areas that would arise if the uses under consideration are designated; and the availability of resources for that maintenance and administration.[93]

There is ample evidence to indicate the need to reduce road mileage, as well as the adverse impacts to the environment from excess roads, including habitat fragmentation, spread of noxious weeds, impact to watersheds, impacts to non-motorized users and wildlife impacts.  It is arbitrary and capricious and an abuse of discretion for the Forest Supervisor to ignore evidence of resource damage and recommendations for road closures and decommissioning by his own resources staff, to favor off-road enthusiasts.

Sustainability and Affordability – The Travel Rule requires the responsible official to consider the need for maintenance and administration of roads, trails and areas that would arise if the uses under consideration are designated and the availability of resources for that maintenance and administration.[94]  

By choosing Modified Alternative B, the Forest Supervisor defies this rule.  At the end of FY 2006, the Eldorado had a deferred maintenance backlog of $32,307,375.[95]   The   ENF road maintenance budget is only $650,000, nearly all used on ML-3, 4 and 5 roads.  The forest knows it can’t begin to maintain its ML-3, 4 and 5 roads with its current road maintenance budget, yet the Forest Supervisor chose an alternative with needlessly high numbers of ML-2 roads and trails, and the highest maintenance costs. The FEIS concludes, “ we don’t have enough funding available to accomplish the needed work.” It is arbitrary and capricious and a violation of the Travel Rule for the Forest Supervisor to select the alternative with the highest maintenance costs, knowing that 1) the forest will not do the maintenance and 2) lack of maintenance will have an adverse impact on the environment.

Federal Land Planning Management Act (FLPMA) and National Forest Management Act (NFMA)

The FEIS and ROD violate FLPMA because Alternative Modified B designates routes in and to meadows.  The determination that insignificant site-specific LMP amendments allow this is erroneous, because no site-specific analysis was done to determine the impacts.  In addition, some meadows have designated routes in and to them, without site-specific LMP amendments. Taking action contrary to the El Dorado LRMP and the SNFPA constitutes a violation of NFMA.

Endangered Species Act

The Endangered Species Act of 1973 (16 USC §1531 et seq) requires that any action authorized by a federal agency not be likely to jeopardize the continued existence of a threatened or endangered species, or result in the destruction or adverse modification of habitat of such species that is determined to be critical.  Section 7 of the ESA, as amended, requires the responsible federal agency to consult the USFWS and the National Marine Fisheries Service concerning endangered and threatened species under their jurisdiction.   We pointed out in our comments on the DEIS that adequate consultation has not occurred.  The FEIS does not correct this error.  Moreover, assuming arguendo that some consultation occurred, given the change in the proposed action the ESA requires that you reinitiate consultation.

Water Quality Requirements.

In our comments on the DEIS, we detailed the factual and legal reasons why the California Porter Cologne Water Quality Control Act and the federal Clean Water Act must be satisfied when authorizing the OHV use outlined in the proposed plan.   E.g., Cal. Water Code §13260(a)(1);  23 Cal. Admin. Code § 2205; 33 USC § 1362.; Water Quality Management For Forest System Lands in California Best Management Practices,  USDA Forest Service Pacific Southwest Region, September 2000, section 12.42.7.b., at p. 73.    The OHV activity causes both point source and non-point source pollution.  The FEIS fails to even acknowledge these comments, thus disregarding an essential disclosure that the Forest Service is subject to permitting requirements for its OHV trails and roads.    In this way, not only have you failed to comply with substantive law governing water quality, but you also have failed to evaluate the environmental effects associated with noncompliance, as required by NEPA.   Should the Forest Service proceed without obtaining required permits, it violates the law.  League of Wilderness Defenders v. Forsgren, 309 F.3 1181 (9th Cir. 2002); see also 40 CFR § 1508.27(b)(10) (In evaluating whether an action may significantly affect the environment, the agency must consider whether the proposed action threatens a violation of law or requirements imposed for the protection of the environment.)

The project record is filled with documentation of discharge of sediment from roads and trails into streams on the ENF.  These include:

1. 5.  Data sheets completed by watershed specialists noted sediment deliver from the following routes:  8N20, 8N33A, 9NY03, 10N60, 9N27A, 9NY04, 10N65D, 10N50R, 10NY33, 10NY14, 10NY13, 11NY09A, 10N55Q, 10N83Y, 10NY20A, 10NY40Q, 10N40R, and 10N55F. [96] Several of these routes are designated in Modified B, including some recommended for decommissioning.

2.  A 2006 study, Sediment Production and Delivery from Forest Roads in the Sierra Nevada, California quantified sediment delivery from ENF forest roads.  According to this study, “sediment is being delivered to the streams from 25% of the road network.”[97]     

3.  Trail 33 on the Amador Ranger District was surveyed by Roger Poff in 2004.  “Both the trails and the road deliver sediment into a stream. Was red mostly on the basis of sediment delivery.  I concur with this rating. This site was identified as one of the areas of hydrologic concern.”[98]

4.  Sopiago Creek Restoration Site:  “The creek channel is loaded with sediment; it would normally be a rocky channel.  Site of Hydrologic Concern #3 is where runoff from Road 10N83S delivers sediment to an unnamed tributary of Sopiago Creek.”[99]


Several provisions of NEPA have not been met.  We outlined in our comments on the DEIS several ways in which we found non-compliance with NEPA.  From our review of the FEIS, these issues remain.  We cite the following as measures which have not been satisfied.  These are borne out by the elements of the appeal.

Under NEPA, environmental assessments must take a hard look at all of the "environmental impacts" of a proposed action, 40 CFR 1508.9(b), which include direct, as well as indirect and cumulative impacts. See 40 CFR1508.8 (effects include ecological, aesthetic, historical, cultural, economic, social or health impacts, whether direct, indirect or cumulative); 40 CFR 1508.25© (NEPA documents shall consider three types of impacts, including direct, indirect, and cumulative effects); 40 CFR 1508.25(a)(2) (NEPA documents must analyze the effects of actions "which when viewed with other proposed actions have cumulatively significant impacts"). Indirect effects are caused by the action and are later in time or further removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water quality and other natural systems, including ecosystems. 40 CFR 1508.8(b).
The FEIS fundamentally fails to satisfy this standard as outlined in the numerous areas set forth in this appeal.

NEPA requires that the FEIS “shall respond to comments,” identifying “any responsible opposing view which was not adequately discussed in the draft statement” and provide “the agency's response to the issues raised.   40 CFR § 1502.9 (b), § 1503.4 (a).  This was not done. Because many of the core comments we made were not responded to at all, or were inadequately addressed, issues concerning the inadequacy of the environmental analysis remain.

To the extent that the Purpose and Need section is not consistent with what the Forest is doing, particularly as to ML-2 roads, that section is defective, by not meeting the requirements of 40 CFR § 1502.13.


 One of the most glaring errors in the FEIS is the failure to adequately address alternatives to the proposed action.   As you know, this requirement is “at the heart of the EIS.”  40 CFR § 1502.14  (Agency must rigorous and objectively evaluate all reasonable alternatives in EIS.)    Here, the Eldorado has failed to “rigorously” explore reasonable alternatives, rejecting ones that are consistent with applicable law governing OHV use and travel routes throughout the forest.

  The FEIS is severely flawed in its lack of required data and information that would enable you to make an informed decision.  NEPA requires that “the agency initiate and utilize ecological information in the planning and development of resource-oriented projects.”   40 CFR §1507.2(e).  This has not been done.

We detailed in our comments the several areas in which the DEIS failed to adequately evaluate the environmental effects of the proposed action.  This appeal outlines the extensive ways in which the FEIS fails to meet the standards under NEPA, including 40 CFR sections 1502.16, 1508.7, 1508.8, and 1508.27.   The federal Council on Environmental Quality (“CEQ”) regulations, binding on the Forest Service, also make clear that impacts off of federal land must be analyzed. These regulations define "cumulative impacts" as: the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.  The FEIS fails to provide the analysis of the OHV activity that will occur on closed routes and areas and private lands as a consequence of the routing intended by the proposed action.  The lack of adequate enforcement is key to this, and is not evaluated.    

Moreover, the FEIS is required to “[s]tate whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. A monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation.”  40 CFR 1505.2(c).   Because the FEIS fails to adequately assess environmental effects, it is impossible to comply with this provision. 

NEPA regulations require that an EIS: (1) “include appropriate mitigation measures not already included in the proposed action or alternatives,” 40 CFR §§1502.14(f); and (2) “include discussions of: . . . Means to mitigate adverse environmental impacts (if not already covered under 1502.14(f)).” 40 CFR §§ 1502.16(h). In addition, under 40 CFR §§1505.2(c), the agency is required to: “State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not.” According to the CEQ, “[a]ny such measures that are adopted must be explained and committed in the ROD [Record of Decision].” Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, 18036 (March 23, 1981). That has not been done in this case.

The FEIS is fatally flawed for a number of reasons, as outlined.  Thus, the ROD needs to be rescinded, and a new DEIS is required.  At a minimum, because the decision adopts a Modified Alternative B, which was not presented in the DEIS, the EIS needs to be recirculated, pursuant to 40 CFR § 1502.9 (c).

Historic Preservation Act

See comments under Chapter 3 comments.

Administrative Procedure Act

Section 706(2) of the APA authorizes courts to “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "short of statutory right.” 5 U.S.C. §§ 706(2)(A), (c).  The Forest Supervisor’s decision in the ROD and for approval of the Travel Plan and FEIS is arbitrary and capricious for all the reasons stated in this appeal as well as in the CSNC’s comments on the DEIS.


1.  Close routes in inventoried roadless areas, especially those roads and trails in meadows or for which Land Management Plan amendments were required.

2.  Comply with the LMP and SNFPA by closing routes in meadows. 

3. Require site-specific analysis and cumulative analysis prior to designation of any route.

4. Analyze additional alternatives that physically close and restore undesignated routes.

5. Adopt an alternative that meets all Riparian Conservation Objectives.

6.  Immediately close and restore all routes that the Forest has been informed are causing significant impacts, as required by EO 11898.

7.  Adopt a travel management plan that complies with all the aforementioned laws and regulations.

8.  Request a permit for discharge of waste from the Regional Water Board.

9. Rescind approval until all of the above have been properly done and a valid decision can then be implemented.

Respectfully submitted,

Karen Schambach, President

Center for Sierra Nevada Conservation

Also on behalf of:

Vivian Parker

Conservation Coordinator, Sierra Nevada National Forests

California Native Plant Society

Brent Schoradt

Deputy Policy Director

California Wilderness Coalition

Chris Kassar

Wildlife Biologist

Center for Biological Diversity

R. Scott Greacen, J.D.

Executive Director

Environmental Protection Information Center

Soren Jespersen

Organizing and Outreach Coordinator

Friends of the River

Monte Hendricks

Trout Fisherman/Backpacker

Don Rivenes

Acting Executive Director

Forest Issues Group


1.                  CSNC comment letter on DEIS, October 22, 2007 with exhibits

2.                  Motor Vehicle Use Evaluation Forms from Route Designation Guidebook

3.                  Sample form: “District Answers to OHV Route Questions” from Project Record.  Route NSR1170C-A

4.                  DVD “Mud on the Rubicon”

5.                  Photos of Landslide on Hunter’s Trail (14E09)

6.                  List of trails for which information on impacts to streams was available, but were designated without explanation.

7.                  Map and project description for Marshall Mine Project; shows ephemeral stream crossed by NSR1046.

8.                  Nancy and Don Erman letter to Board of Forestry re temporary streams.

9.                  Photo of illegal vehicle use on meadow on Elkins Flat OHV area, ENF.

10.             Photo of illegal vehicle use and damage to Lava Cap, ENF

11.             Table A-3 from Sensitive Plant BE

12.             List of Eldorado National Forest Plant and Noxious Weed Surveys 1999-2007.

13.             Watershed route data sheets.

14.             Randy Moore Op-Ed in Sacramento Bee, April 7, 2008.

15.             Testimony of Jack Gregory before Congress

[1] Sierra Nevada Forest Plan Amendment, Record of Decision. 2001, 2004. (“SNFPA”) p. 7. CSNC does not provide a copy of this document, or any others from the SNFPA decision, as those are documents within your agency as management documents for the Forest.  

[2] ENF OHV Route Designation Project “District Answers to OHV Route Questions.”  (In project record.) Watershed specialists noted sediment delivery and stream impacts on many of the routes they surveyed.  Many of these are designated in Modified B. CSNC has undertaken a review of all materials referenced in this appeal, and copies of documents in the project record are not provided as the agency already has them.

[3] USFS, National OHV Implementation Team, Motor Vehicle Route and Area Designation Guide, Step 3, p. 12.

[4] See Appendix 2

[5] FEIS, p. xi, Purpose and Need for Action

[6] FEIS, Executive Summary, Eldorado National Forest Travel Management Direction, p. ix.

       [7] Regional Forester Randy Moore, Sacramento Bee, April 7, 2008. (Appendix 14)

[8] ENF, Final Aquatic Species Biological Evaluation for the Public Motor Vehicle Travel Management EIS. Appendix A, Riparian Conservation Objectives Analysis, p. A-2.  March 2008

[9] This direction to the Eldorado not only dooms the FEIS analysis for purposes of NEPA compliance; if true, it also raises the question of who is the appropriate appeals deciding officer.

[10] Route Evaluation forms, in Project Record

[11] FEIS, Appendix C, p. 183 Table of Specific Routes Commented on.7

[12] CSNC Comments on Eldorado National Forest’s Public Wheeled Motorized Travel Management Draft EIS, p. 7, 35, and Exhibit 4 in those comments (12 pages).

[13] Poff, Roger.  Review of Forest Service OHV Soil Conservation Activities: Elkins Flat OHV Area, Eldorado National Forest. March 12, 2004. Project Record

[14] FEIS, p. 3-1.

[15] FEIS, p. 3-2

[16] See enclosed Power Point presentation, “Mud on the Rubicon,” Appendix 4

[17] FEIS, p. 3-19

[18] FEIS, p. 3-24

[19] Ibid

[20] Ibid

[21] FEIS, p. 3-25

[22] FEIS, p. 3-25

[23] FEIS, p. 3-24, 3-25 and3-26

[24] FEIS, Appendix G.

[25] FEIS, p. 3-26

[26] FEIS, p. 3-29

[27] FEIS, p. 3-31

[28] PRC 5090.50 (b)(1)(B)(i)

[29] ROD, p. 9

[30] FEIS, p. D-1

[31] FEIS, p. D-2

[32] FEIS, p. 3-25

[33] FEIS, p. 3-25

[34] FEIS, p. 3-37

[35] FEIS, p. 3-148 Note:  These are meadows the FEIS acknowledges.  Appellants have identified many more meadows impacted by roads and trails under Modified B.

[36] Findlay, Scott and Bourdages, Josee.  Response Time of Wetland Biodiversity to Road Construction on Adjacent Lands. Conservation Biology, p. 86-94, Feb. 2000.  (In project record)

[37] Ibid

[38] FEIS, p. 3-34.

[39] FEIS, p. 3-37

[40] See Appendix 6 for list of trails for which information on impacts to streams was available.  Data sheets are in project record.

[41] See map and project description in Appendix 7

[42] FEIS p. 3-37

[43] Erman, Nancy.  SNEP Report, Volume II, Chapter 35.  “Status of Aquatic Invertebrate.” Project record.

[44]  Appendix 8. Erman, Don and Erman, Nancy.  Letter to Board of Forestry, Sept. 7, 1999.

[45] [45] Ibid.

[46] Sierra Nevada Forest Plan Amendment, Record of Decision, Appendix A-52. Agency records.

[47] FEIS, p. 3-41, Table 3-D-4.  Indicator Measure 3.

[48] Letter from John Miles, Project Record.

[49]ENF Public Wheeled Motorized Travel Management Plan FEIS & ROD. 2008.  P. 3-72.

[50]ENF Public Wheeled Motorized Travel Management Plan FEIS & ROD. 2008. P. 3-68, also see “Field Reconnaissance” information on page 8 of the Sensitive Plant B.E.  

[51] Sensitive Plan Biological Evaluation (BE) for ENF Public Wheeled Motorized Travel Management Plan FEIS, p. 43. Project record.

[52] Ibid 

[53] ENF Public Wheeled Motorized Travel Management Plan FEIS & ROD. 2008. P. 3-80.

[54] ENF Public Wheeled Motorized Travel Management Plan FEIS & ROD. 2008.p. 3-79.

[55] SNFPA FEIS, Vo. 3, Ch. 3, part 4.6, p. 58.

[56] Appendix 9: photos of illegal vehicle use on meadow at Elkins Flat, ENF and Appendix 10: photo of illegal use on lava cap on ENF.

[57]ENF Public Wheeled Motorized Travel Management Plan FEIS & ROD. 2008.  P. 3-72.

[58] Poff, Roger.  Review of Forest Service OHV Soil Conservation Activities:  Elkins Flat OHV Area. March 12, 2004.  Project file.

[59] ENF Public Wheeled Motorized Travel Management Plan FEIS & ROD. 2008.p. 3-34.

[60] Sensitive Plan Biological Evaluation (BE) for ENF Public Wheeled Motorized Travel Management Plan FEIS. P. 43.  Project file.

[61] Appendix 12: Table A-3, Appendix to Sensitive Plant BE, p. 68.

[62] Sierra Nevada Forest Plan Amendment FEIS Appendix E-65, E-66, E-69, E-77, E-100. Project file.

[63] Referenced in Sensitive Plant BE, p. 10.

[64] See Appendix 12; Plants & Noxious Weeds Surveys 1999-2007.

[65] SNFPA, Appendix A, Management Direction

[66] SNFPA, Appendix A, Management Direction

[67] SNFPA Standards and Guidelines, #27 and 28.

[68] ROD, p. 9

[69] ENF Roads Analysis, Project Record.

[70] 3-265

[71] FEIS, p. 3-34.

[72] ENF LRMP Standard and Guideline # 28: Prohibit motor vehicle use on meadows; and #104: Close roads to and across meadows.

[73] RCO objective #4:  Ensure that management activities, including fuels reduction actions, within RCAs and CARs enhance or maintain physical and biological characteristics associated with aquatic- and riparian-dependent species. 

[74] EIS, 3-37

[75] The EIS further explains its reasons for excluding ephemeral streams from analysis, saying ephemeral streams “generally do not contain aquatic habitat that is considered necessary for the survival and reproduction of threatened, endangered, and sensitive (TES) species.  It also states that “the risk of adverse effects to the aquatic habitat of perennial and seasonal streams – not including ephemeral streams – is adequate to characterize relative differences between the alternatives.” These statements are both irrelevant to the requirement to include ephemeral streams in the RCO analysis, as well as invalid, as we shall document below. 

[76]  Draft RCO analysis, from Aquatic Species BE, May 30, 2007, Project record.

[77] SNFPA, Appendix A, Management Direction. In Agency files.

[78] Agency files

[79] FEIS, p. 3-195

[80] Biological Evaluation for the Public Motor Vehicle Travel Management EIS, p. 67.

[81] ENF Roads Analysis, p.6

[82] ENF Roads Analysis, p. 20

[83] FEIS, p. 3-224

[84] See Appendix 1, CSNC comments on DEIS, p. 37-40

[85] CSNC comments on DEIS, p.29, Appendix 1

[86] Appendix 15, Testimony of Jack Gregory, Special Agent in Charge, Retired,  Southern Region, U.S. Forest Service On Behalf of Rangers for Responsible Recreation and 

Public Employees for Environmental Responsibility  Before the  Subcommittee on National Parks, Forests, and Public Lands Natural Resource Committee United States House of Representatives Hearing on The Impacts of Unmanaged Off Road Vehicles on Federal Land March 13, 2008

[87] FEIS, p. 3-275

[88] FEIS, p. 3-271

[89] USFS,”Programmatic Agreement regarding compliance with Section 106 of the National Historic Preservation Act for Designating Motor Vehicle Routes and Managing Motorized Recreation on the National Forests in California.”  In agency files.

[90] FEIS, p. 3-271

[91] 36 CFR 212.5 (b)(1)

[92] 36 CFR §212.5 (b) (2)

[93] 36 CFR §212.55 (a

[94] 36 CFR 212.55 (a)

[95] DEIS, Chapter 3, p. 248

[96]  Appendix 13.  Watershed data sheets.

[97] Coe, Drew.  Sediment Production and Delivery from Forest Roads in the Sierra Nevada, California. 2006. p. 82 (In project record).

[98] Poff, Roger.  Review of Forest Service OHV Soil Conservation Activities:  Amador District, Eldorado National Forest. March 12, 2004. (In project record.)

[99] Poff, Roger.  Review of Forest Service OHV Soil Conservation Activities:  Amador District, Eldorado National Forest. March 12, 2004. (In project record.)  Note:  Road 10N83S is designated open for all highway and non-highway vehicles in the ROD and FEIS.