Arapaho and Roosevelt National Forests and Pawnee National Grassland

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1 United States Department of Agriculture Forest Service Arapaho and Roosevelt National Forests and Pawnee National Grassland 2150 Centre Avenue, Building E Fort Collins, CO Voice: (970) TDD: (970) Web: Fax: (970) File Code: 1570 ( ) Date: February 24, 2006 Certified: Mr. Larry Farnsworth 419 Majestic View Drive Boulder, CO Dear Mr. Farnsworth: Pursuant to 36 CFR Part 215, I have reviewed the record of the Brainard Lake Recreation Area Development/Management Plan Environmental Assessment with regard to your appeal of the January 12, 2006 decision of Boulder District Ranger, Christine Walsh. I have also considered the written recommendation of the Appeal Reviewing Officer (ARO), a District Ranger from another National Forest in Colorado, concerning the disposition of your appeal. The ARO focused on the decision documentation developed by District Ranger Walsh and her staff and the issues raised in your appeal. Your issue in your appeal states, I specifically appeal this decision on procedural grounds. Notice was not early effective, consistent, or descriptive enough for campers to know that their campground would be reduced in size, scope or location. In my review of the record and the ARO s recommendation I did not find this to be the case. Below is a summary of the public involvement process that occurred during the two years of analysis for this project. Public meetings were advertised in numerous local and regional newspapers in early November The initial scoping letter requesting comments on this project was mailed in mid- November 2003 and your name was on the master mailing list for this letter. Open houses were held at the Boulder District Office and at the Nederland High School from mid-november to mid-december. Comments were requested by January 8, 2004, but were accepted until the decision was made. The district had a field trip to the area in October, The first Environmental Assessment (EA) for the proposed projects was mailed to 105 individuals and organizations in October Due to comments and concerns on this EA (e.g., Town of Ward s concern about maintaining their domestic drinking water quality that originates from the project area as well as your own), the District decided to modify their proposed action and write a new EA with additional analysis. The District distributed flyers to the public in the Brainard area in July 2005 on the new proposed action of this second EA. This EA was sent out to 120 interested individuals and organizations for comment in August Caring for the Land and Serving People Printed on Recycled Paper

2 Finally, in the December 2005 decision issued by District Ranger Walsh, she responded to all comments received on this EA. In regard to your points about the number, size, and location of recreation facilities, simply not concurring with the decision is not a basis for an appeal, so those points were dismissed. Decision The ARO found no evidence of the decision violating law, regulation or policy, and recommended that District Ranger Walsh s decision be affirmed in whole with respect to your appeal. After my review of the appeal record, I concur with the Appeal Reviewing Officer s recommendation and I adopt and incorporate it into my decision. The ARO s recommendation letter is enclosed. It is my decision to affirm fully the decision made by District Ranger Walsh. This decision constitutes the final administrative determination of the Department of Agriculture. I encourage you to continue to work with the Boulder Ranger District as they move forward to implement the Brainard Lake Recreation Area Development and Management Plan. Sincerely, /s/ James S. Bedwell JAMES S. BEDWELL Forest Supervisor cc: Senator Wayne Allard, Senator Ken Salazar, Congressman Mark Udall, Christine Walsh, Karen Roth

3 File Code: 1570 Route To: ( ) Date: February 23, 2006 Subject: To: Recommendation Memorandum for Appeal of Brainard Lake Recreation Area Decision, Appeal No Appeal Deciding Officer I have reviewed the appeal record regarding the January 12, 2006 appeal of the decision of District Ranger Christine Walsh concerning the Brainard Lake Recreation Area on the Boulder Ranger District on the Arapaho/Roosevelt National Forests by Larry Farnsworth. My review of the appeal as submitted by eligible appellants focused on the decision documentation developed by the District Ranger in reaching her decision in relation to issues raised in the appeal. Pursuant to 36 CFR (f)(2), this will constitute my written recommendation concerning the disposition of the appeal, and I am forwarding the appeal record to you. BACKGROUND The Brainard Lake Recreation Area (BLRA) is located west of the city of Boulder, Colorado, adjacent to the Indian Peaks Wilderness. The BLRA is popular for a wide variety of recreation uses year around. The District has developed a long-range management plan with the goals of providing a high quality recreation experience and preserving the natural resources of the area. The following needs have been identified reduce vehicle congestion at trailheads, parking areas, and along the road; improve winter recreation facilities; concentrate use on designated trails and eliminate social trails; improve signage; minimize impacts of dispersed camping and user created trails; and protect wilderness values of Indian Peaks Wilderness. ISSUES AND DISCUSSION 1. Procedural Grounds: Public notice was not early, effective, consistent, or descriptive enough for campers to know that their campground would be reduced in size, scope or location. (p. 1) The Appellant alleges the public comment process for the project was woefully inadequate by design and was designed to quiet public comment and advice and consent by inadequate publication of intended changes to public recreation in the Brainard Lake recreation Area. Requirements 40 CFR Scoping

4 There shall be an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action. This process shall be termed scoping. (a) As part of the scoping process the lead agency shall: (1) Invite the participation of affected Federal, State, and local agencies, any affected Indian tribe, the proponent of the action, and other interested persons (including those who might not be in accord with the action on environmental grounds), unless there is a limited exception under Sec (c). An agency may give notice in accordance with Sec Sec Public involvement. Agencies shall: (a) (b) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures. Provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected. (1) In all cases the agency shall mail notice to those who have requested it on an individual action. (2) In the case of an action with effects of national concern notice shall include publication in the Federal Register and notice by mail to national organizations reasonably expected to be interested in the matter and may include listing in the 102 Monitor. An agency engaged in rulemaking may provide notice by mail to national organizations who have requested that notice regularly be provided. Agencies shall maintain a list of such organizations. (3) In the case of an action with effects primarily of local concern the notice may include: (i) Notice to State and areawide clearinghouses pursuant to OMB Circular A- 95 (Revised). (ii) Notice to Indian tribes when effects may occur on reservations. (iii) Following the affected State's public notice procedures for comparable actions. (iv) Publication in local newspapers (in papers of general circulation rather than legal papers). (v) Notice through other local media. (vi) Notice to potentially interested community organizations including small business associations. (vii) Publication in newsletters that may be expected to reach potentially interested persons. (viii) Direct mailing to owners and occupants of nearby or affected property. (ix) Posting of notice on and off site in the area where the action is to be located.

5 (c) (d) (e) Hold or sponsor public hearings or public meetings whenever appropriate or in accordance with statutory requirements applicable to the agency. Criteria shall include whether there is: (1) Substantial environmental controversy concerning the proposed action or substantial interest in holding the hearing. (2) A request for a hearing by another agency with jurisdiction over the action supported by reasons why a hearing will be helpful. If a draft environmental impact statement is to be considered at a public hearing, the agency should make the statement available to the public at least 15 days in advance (unless the purpose of the hearing is to provide information for the draft environmental impact statement). Solicit appropriate information from the public. Explain in its procedures where interested persons can get information or status reports on environmental impact statements and other elements of the NEPA process. FSH Chapter 10 Part 11 Conduct Scoping The following is from the general discussion of scoping: Because the nature and complexity of a proposed action determine the scope and intensity of the required analysis, no single technique is required or prescribed. Except where required by statute or regulations, the responsible official may adjust or combine the various steps of the process outlined in this chapter to aid in the understanding of the proposed action and identified issues. Findings Scoping The appeal record (DN pgs 16-17; August 2005 EA pgs 8-9; October 2004 EA pg 4; and Public Scoping Summary dated January 28, 2004 pg 1) show the following: The following scoping actions were conducted during November and December 2003: Public meetings were advertised in a press release dated November 2 in the Boulder Daily Camera, Nederland Mountain Ear, Denver Post, Associated Press, United Press, Colorado Daily and Longmont Times. The scoping letter and Opportunities for the Future document describing the Brainard Lake Recreation Area planning project were mailed to interested and affected parties on November 13. The Appellant s name is on the master mailing list for the Brainard Project. Three open houses were held: two at the Boulder Ranger District Office on November 13 and December 11 and one at Nederland High School on November 19. Comments were requested by January 8, 2004, but were accepted until the decision was made. Additional opportunities to comment The appeal record (DN pgs 16-17; August 2005 EA pgs 8-9; October 2004 EA pg 4; and Public Scoping Summary dated January 28, 2004 pg 1) show the following:

6 A field trip was conducted on October 9, The EA was mailed to 105 individuals and organizations on October 29, Sixtyfour comment letters were received. Another open house public meeting was held on November 10, Flyers distributed to the public in the Brainard area, at the Kiosks and Entrance Station in July A reworked EA was sent out to 120 interested parties for comment on August 24, Mailing Lists The appeal record contains 4 mailing lists dated December 2003 (530 names, including Mr. Farnsworth); February 2005 (495 names, including Mr. Farnsworth); October 2005 (100+ names, including Mr. Farnsworth); and December 2005 (the portion including Mr. Farnsworth s name and address). Discussion As evidenced in the chronology above, public involvement was begun in November of 2003 with a scoping letter, news releases, news articles, and public meetings. Public involvement continued with the mailing of the EA for public comment, an open house, a field trip, issuance of the reworked EA for public comment, and numerous press releases and news articles published prior to the decision being signed on December 1, The chronology shows the District met the requirement in 40 CFR (a) to make a diligent effort involve the public in preparing for and implementing their NEPA procedures. The District demonstrated that they listened to and incorporated public comments by reworking the October 2004 EA which increased the number of campsites proposed for the reconstruction of the Pawnee Campground, and by sending the new proposal out for comment in August of The selection of Alternative E, from the reworked EA, further demonstrates the District s responsiveness to public concerns and suggestions for the proposal. The Appeal Record indicates the District made a diligent effort to involve the public in the NEPA process. Public involvement started in November of 2003 and expanded and continued until the decision was signed in December The District responded to public concerns by developing another proposed action which provided for more campsites in the Pawnee Campground, and provided a 30-day comment period on the reworked EA. I recommend the District Ranger be affirmed on this issue. 2. In order for notice to have been effective and moral, some elements and alternatives of the planning process as predicated in the early published documents by the Forest Service had to be divulged to the public to assess public sentiment. (p. 1) The Appellant alleges he was refused the opportunity to distribute his own flyer and lobby his fellow public campers. Findings and Discussion

7 An undated note in the Appeal record states that the Appellant requested that his information flyers be distributed in the Pawnee Campground by Thousand Trails Concessionaire. While the District was not opposed the having the flyers distributed by the concessionaire, they could not require the concessionaire to distribute the flyers because passing out flyers from private parties is not a term of the concessionaire s permit with the Forest Service. There is no evidence in the record indicating whether or not Mr. Farnsworth requested that he be allowed to pass out his flyers. I find there is no evidence the Appellant was refused the opportunity to distribute his flyers himself and to lobby his fellow campers. I recommend the District Ranger be affirmed on this issue. The Appellant also alleges the July 2005 flyer, if there was one, did not tell campers the campground would be halved in size and could possibly be closed or relocated. Findings and Discussion The Appeal Record shows that the July 2005 flyers distributed by the Forest Service to the public in the Brainard area, at the Kiosks and Entrance Station, provided a very brief summary of the proposal and also provided information on how to get on the mailing list to receive notification of the release of the Environmental Assessment for public comment. The EA has a full description of the proposed action, which does not include halving the campground in size or the possibility of closing the campground. The October 2004 EA (pgs 7-27) had 3 action alternatives in which the Pawnee Campground would have been reconfigured to accommodate from as few as 20 campsites to as many as 35. The EA, referred to in the July 2005 flyer, was released in August of 2005 and the proposed action (developed in response to public comment on the October 2004 EA) proposed campsites in the reconstructed Pawnee Campground (pgs 16-26). No evidence was found in either EA for a proposal to close the Pawnee Campground. Consequently, there was no reason for the July 2005 flyer to mention closing or reducing the capacity of the Pawnee Campground by one-half. I find that the proposed action and the alternatives to the proposed action were available to the public in the environmental assessments (EAs) and that the District made a diligent effort to provide the EAs to the public and provide information about where the public could get copies of the EAs. I recommend the District Ranger be affirmed on this issue. 3. There were a number of decision points about number, size, and location of recreation facilities with which the Appellant did not concur. Requirements Appeal content.

8 (b) The appeal must be filed with the Appeal Deciding Officer in writing. At a minimum, an appeal must include the following: (1) Appellant s name and address ( 215.2), with a telephone number, if available; (2) Signature or other verification of authorship upon request (a scanned signature for electronic mail may be filed with the appeal); (3) When multiple names are listed on an appeal, identification of the lead appellant ( 215.2) and verification of the identity of the lead appellant upon request; (4) The name of the project or activity for which the decision was made, the name and title of the Responsible Official, and the date of the decision; (5) The regulation under which the appeal is being filed, when there is an option to appeal under either this part or part 251, subpart C ( (d)); (6) Any specific change(s) in the decision that the appellant seeks and rationale for those changes; (7) Any portion(s) of the decision with which the appellant disagrees, and explanation for the disagreement; (8) Why the appellant believes the Responsible Official s decision failed to consider the substantive comments; and (9) How the appellant believes the decision specifically violates law, regulation, or policy. Discussion Simply not concurring with the decision is not a basis for an appeal. The Appellant failed to include items 6, 8, and 9 of 36 CFR in his discussion of the decision points with which he did not concur. Therefore these are not appeal points and no response is necessary. RECOMMENDATION I recommend the decision of the District Ranger be affirmed in whole. /s/ Michael R. Herth MICHAEL R. HERTH Appeal Reviewing Officer