United States Department of Agriculture Forest Service Southern Regional Office 1720 Peachtree Road, NW Atlanta, GA 30309 File Code: 1570-1 Date: 10-08-09-0050 April 8, 2010 Montgomery County Advisory Committee ATTN: Mr. David Spurling P.O. Box 91 Pencil Bluff, AR Dear Mr. Spurling: CERTIFIED MAIL R.R.R. Re: Appeal 10-08-09-0050 of Forest Supervisor Norman L. Wagoner s January 4, 2010, Decision for Alternative E of Travel Management Plan Amendment 3 in the Revised Land and Resource Management Plan for the Ouachita National Forest in Arkansas According to the authority granted to me by 36 CFR 215, this letter contains my consolidated appeal decision on your appeal of the subject Decision. BACKGROUND On January 4, 2010, Forest Supervisor Wagoner signed the Decision for this project with the Notice of Decision being published in the Arkansas Democrat Gazette on February 20, 2010. It has been verified that you provided comments during the 30-day Notice and Comment period of February 21, 2008, through March 21, 2008, required for standing to appeal in the proposed action. Therefore, you met the regulatory requirements at 36 CFR 215.13 for eligibility to file an appeal which was accepted on March 1, 2010. The Forest Supervisor notified us that an offer was made to meet and discuss the issue in your appeal in an effort to resolve it informally. As no resolution was reached we continued with our review of your appeal. RECOMMENDATION OF APPEAL REVIEWING OFFICER (ARO) I received the recommendation of the ARO that the Forest Supervisor s Decision be affirmed. The ARO s recommendation is based on the appeal issue and a review of the project record. A copy of the ARO recommendation is enclosed. RELIEF REQUESTED The appeal requests that the decision be withdrawn. Caring for the Land and Serving People Printed on Recycled Paper
Appeal 10-08-09-0050 Page 2 CONCLUSION My review of your appeal was conducted pursuant to, and in accordance with, 36 CFR 215.18 to ensure the analysis and decision are in compliance with applicable laws, regulations, policy and orders. I have reviewed the appeal record and the recommendation of the ARO, which includes a discussion of the issues that were raised in your appeal. Based on this review, I concur with the ARO s recommendation and am affirming Forest Supervisor Wagoner s January 4, 2010, Decision. This constitutes the final administrative determination of the Department of Agriculture. Sincerely, /s/ Jerome Thomas JEROME THOMAS Appeal Deciding Officer Deputy Regional Forester Enclosure (ARO Recommendation)
Appeal 10-08-09-0050 Page 3 United States Department of Agriculture Forest Service Southern Region Cherokee NF 2800 North Ocoee Street Cleveland, TN 37312 File Code: 1570-1 Date: April 5, 2010 Route To: Subject: To: ARO Recommendation Spurling Appeal 10-08-09-0050 for the Ouachita Travel Management Project Under 36 CFR 215 Appeal Deciding Officer This letter constitutes my recommendation for the subject appeal filed by David Spurling of the Montgomery County Advisory Committee, for the Ouachita Travel Management Project. My review was conducted pursuant to 36 Code of Federal Regulations (CFR) 215. To ensure the analysis and decision are in compliance with applicable laws, regulations, policies and orders, I have reviewed and considered the point raised by the appellant and the decision documentation submitted by the Forest Supervisor. My recommendation is based upon review of the Appeal and Project File, including but not limited to the Decision Notice and of No Significant Impact (DN-FONSI), Environmental Assessment (EA) and Biological Evaluation/Biological Assessment (BE/BA). ISSUES The Issues raised in this appeal that are within the scope of the review and meet the requirements of 36 CFR 215.14 are: Issue 1 Issue 2 Issue 3 Whether the decision inappropriately discriminates between highway vehicles and OHVs; [Appeal, p. 1] Whether game retrieval opportunities appropriately consider the needs of older or disabled hunters; [Appeal, p. 1] and Whether the Decision Notice and of No Significant Impact falsely states that the decision is not likely to be highly controversial. [Appeal, 3]. DISCUSSION OF ISSUES Issue 1 Whether the decision inappropriately discriminates between highway vehicles and OHVs.
Appeal 10-08-09-0050 Page 4 The appellant contends that, OHV users should have the same right to travel on the same Forest Service roads that highway vehicles may travel. Executive Order 11644 ( Use of Off-Road Vehicles on the Public Lands ), dated February 8, 1972, as amended by Executive Order 11989, dated May 24, 1977, provides for developing regulations governing use of off-road vehicles on federal lands to protect natural resources, promote public safety, and minimize conflicts among uses (FSM 7701.2C). In addition, CFR 215.5(a)(2)(ii) states: Roads, or segments thereof, may be restricted to use by certain classes of vehicles or types of traffic as provided in 36 CFR 261. Classes of vehicles may include but are not limited to distinguishable groupings such as passenger cars, buses, trucks, motorcycles, all-terrain vehicles, 4-wheel drive vehicles, off-highway vehicles, and trailers. Types of traffic may include but are not limited to groupings such as commercial hauling, recreation, and administrative. The Revised Forest Plan for the Ouachita National Forest provides direction to: Develop and operate a system of OHV routes that satisfies some public demand for motorized recreation and protects environmental quality (Revised Forest Plan, p. 67). The Travel Analysis Report for the Ouachita National Forest (TAR) identifies a safety hazard from the mixed use of different kind and sizes of vehicles. I find the decision does not inappropriately discriminate between highway vehicles and OHV s. Issue 2 Whether game retrieval opportunities appropriately consider the needs of older or disabled hunters. The appellant contends that if an individual has a valid hunting license they should be able to recover and animal no matter how far off the route (Appeal, p. 1). The EA (p. 9) identifies six significant issues, the first of which is: Loss of existing access for persons with disabilities, hunting (transporting deer stands, scouting, game retrieval), dispersed camping and other recreational use. These issues were used to formulate the alternatives that were analyzed in detail in the EA. In response to public comments the Forest decided to consider limited public use of OHVs for big game retrieval ( Travel Management Project Update, March 2009). Most alternatives considered included allowance for game retrieval during certain months within ½ mile of a designated route in most parts of the Forest. Additionally, Alternative A, the no action alternative, would allow cross-country motor vehicle use unless an area is closed by statute or order.
Appeal 10-08-09-0050 Page 5 One of the priorities and objectives for completing the Travel Management Plan was to: Develop and operate a system of OHV routes that satisfies some public demands for OHV recreation and protects environmental quality (DN, p. 3). As such, the Forest recognized it would not be able to completely meet the demand for OHV use and protect the environment. Alternative E was chosen in part because it Provides additional resource protection. and Offers a variety of motorized travel opportunities. (DN, p. 5) I find the deciding official appropriately considered opportunities for game retrieval. Issue 3 Whether the Decision Notice and of No Significant Impact falsely states that the decision is not likely to be highly controversial. The appellant contends that, Based on conversations with a variety of people, including public officials, the majority of the public are not in favor of this plan. (Appeal, p. 3). The phrase highly controversial used by the appellant comes from 40 CFR 1508.27 (b)(4): The degree to which the effects on the human environment are likely to be highly controversial. Highly controversial in this context refers to environmental effects, as opposed to controversy over the decision itself. The appellant has provided no specific reference to differences of opinion over environmental effects, only that the public is not in favor of the decision. I find the FONSI is adequate. RECOMMENDATION After reviewing the project record and the issues raised by the appellant, I recommend that Forest Supervisor Norman L. Wagoner s January 4, 2010, Decision for the Ouachita Travel Management Project, be affirmed. /s/ H. Thomas Speaks, Jr. H. THOMAS SPEAKS, JR Appeal Reviewing Officer Forest Supervisor