[starion887]

We all saw the indirect effect of the rulings from the 9th Circuit Court of Appeals decision, in a suit brought against the USFS by various environmental groups. Due to the vagueness of the both court's initial rulings as well as the plaintiffs original suit, plus the later ruling by the court that this was retroactive over most of the summer time, the USFS moved to suspend pretty much all permits. They did not see clear guidelines as to what was, and was not, allowed to bypass the full public review and appeals process. It is pretty obvious that while clarification was badly needed, this move was also a partly political move to force quick clarification by the courts, by making this a political as well as a legal issue.

The USFS then asked the court for a stay pending appeal (to the Supreme Court, I think) of the original ruling, which then forced the environmentalists to come to the court to move against this request for stay, in order to retain some of their earlier victory. It also forced them to deal with the issue of clarification; they formally requested this of the judge.

The judge issued clarification on what is and what is not subject to the full public review and appeals process; he also decided to not yet rule on the USFS request for a stay pending appeal. The judge gave until Nov 10th for the USFS to further file on their request for a stay, and until Nov 23 for the plaintiffs to further reply. So, stay tuned for round 4.

The clarification issued by the judge fell back to 1993/2000 rules, with the following items explicitly subject to the full public review and appeals process. This is text directly from the latest court order:

-Start of text from court order-

The Court intended that the regulations replaced by the now-severed 2003 regulations be reinstated. The relevant rules previously in force are the 1993 rule, and the 2000 supplemental rules. Under the 1993 rule, categorically excluded timber sales are subject to notice, comment, and appeal. 58 Fed. Reg. 58,904 (Nov. 4, 1993). The other categorically excluded activities subject to notice, comment, and appeal under these rules are:
(1) Projects involving the use of prescribed burning;
(2) Projects involving the creation or maintenance of wildlife openings;
(3) The designation of travel routes for off-highway vehicle (OHV) use which is not
conducted through the travel management planning process as part of the forest planning
process;
(4) The construction of new OHV routes and facilities intended to support OHV use;
(5) The upgrading, widening, or modification of OHV routes to increase either the levels or
types of use by OHVs (but not projects performed for the maintenance of existing routes);
(6) The issuance or reissuance of special use permits for OHV activities conducted on areas, trails, or roads that are not designated for such activities;
(7) Projects in which the cutting of trees for thinning or wildlife purposes occurs over an
area greater than 5 contiguous acres;
(8) Gathering geophysical data using shorthole, vibroseis, or surface charge;
(9) Trenching to obtain evidence of mineralization;
(10) Clearing vegetation for sight paths from areas used for mineral, energy, or geophysical investigation or support facilities for such activities.
65 Fed. Reg. 61,302 (Oct. 17, 2000). Thus, the Forest Service need not suspend actions not contemplated in the old rules, such as ?[a]pproval, modification, or continuation of minor, shortterm (one year or less) special uses of National Forest System lands, such as for state-licensed outfitters or guides, or approving gathering forest products for personal use. "

-End of text from court order-

(Opinion: Item 6) on the list seems to me to be the one area where opponents of rallies could try to stop our permits. I think this really has no basis because I beleive that item was really intended to prevent backdoor permitting of OHV's.)

Finally, after all this legal research, I now reward myself with a bit of an editorial pause: I have been visiting various web and blog sites while all this has been transpring. The environmental law sites and related sites are pretty amazing to read, and it's discouraging to know that folks can be so one-sided. They consistently claim another victory in their fight in this latest order; the only thing they gained IMO was to get their carcasses back out of the negative public glare after they got politically out-maneuvered. A political process for fair resolution of forest use is NOT what they want; they want to keep this purely inside the legal process so that they can spend their multi-million dollar legal funds fighting where the rest of us cannot afford to go. It's tyrranny by a minority by perversion of the good intents behind the rule of law. (OK, sorry for the editorial rant and rave: I don't like ANY group having undue or unearned control in our society.)

Regards, and hope this was useful,
Mark B.

 

[jake himes]

>Finally, after all this legal research, I now reward myself
>with a bit of an editorial pause: I have been visiting various
>web and blog sites while all this has been transpring. The
>environmental law sites and related sites are pretty amazing
>to read, and it's discouraging to know that folks can be so
>one-sided. They consistently claim another victory in their
>fight in this latest order; the only thing they gained IMO was
>to get their carcasses back out of the negative public glare
>after they got politically out-maneuvered. A political process
>for fair resolution of forest use is NOT what they want; they
>want to keep this purely inside the legal process so that they
>can spend their multi-million dollar legal funds fighting
>where the rest of us cannot afford to go. It's tyrranny by a
>minority by perversion of the good intents behind the rule of
>law. (OK, sorry for the editorial rant and rave: I don't like
>ANY group having undue or unearned control in our society.)
>
>Regards, and hope this was useful,
>Mark B.

It's good that you have the fortitude to keep on this stuff. It is unfortunate the the judge is not yet ruling so we have to keep things up in the air still.

While the USFS is an easy target it is the only one that folks who want to lock up our forests and toss the keys can be effective with. If the battle was on 50 different fronts they would have to split their resources 50 different ways.

That's why the complete dismantling of the Forest Circus is the best thing for all. Local decision making would favor various opinions instead of a one size fits all approach to land management.

I hope that there is some way we can use the Mark Twain roads at 100 acre wood. They are THE best in the country hands down.

 

[Walter Clark]

Thanks for keeping us up to date on this Mark.

Personally I think using 6) as the ***** to stop stage rallying is weak since it talks specifically to off-road vehicles and technically we use registered on-road vehicles. However weak or non-existant never stopped a lawyer before...

 

[Flyboy]

>
>I hope that there is some way we can use the Mark Twain roads
>at 100 acre wood. They are THE best in the country hands
>down.
>

100AW runs completely on county roads, hence the rally is safe.

Dennis Martin
[email protected]
920-432-4845

 

[starion887]

I recall that 100AW ran in the NF back in it's original incarnation in the late 70's and 80's

Mark B.

 

[starion887]

For perspective: Some more history (including political)

So that you can understand more of how we got here with the USFS thing, here are some bits of history:

- The Democrat party controlled Congress passed the Appeals Reform Act (ARA) in 1991, that made the USFS open certain process to full public review and appeals. This resulted in the 1993 rules of what is subject to such review and appeal, which rules the USFS has now fallen back to, per the latest court order. (Personal side note: I wrote the SCCA Blue Ridge Region permit application for Washington NF road use permits in 1993 near Buena Vista, VA, and got shot down. I was too uneducated about all this to avoid naively putting my foot wrong in many places. The District Ranger was sympathetic, but intimated that it was politically hot. Now I have 'connected the dots', and see that the ARA, the 1993 rules, and the political wind was hard against this fellow ever sticking his neck out to support such a road use permit.)
- The 2000 rules mods were added by the outgoing Clinton administration. This could be done as it was an adminstrative action, not legislative.
- The Bush administration early on started to work to reverse the control on forest actions by nationally funded environmental groups. They politically backed the USFS in excluding more issues from the controls imposed by the full review and appeals process. This resulted in the recent suit by the environmental groups that resulted in this year's antics, and which will continue.

This NOT supposed to be political, nor subject to continual court action. Each NF has a forest use plan developed every 10-15 years. This is about a 2 year process each time, and has long periods for public input and review. We ralliers, as a potential use group, do not participte in this to my knowledge. Groups such as the Blue Ribbon Commission DO partcipate. Once a Use Plan is developed, that is supposed to guide forest use in each NF. The recent final rules on OHV use is a good example of how the administration is trying to push things back to more local control of the forests, and the true use of the local NF use plans as a guide, not the national will of certain interest groups.

However, the political wind blown by what persons and political party is on power in Washington has a biiiig effect, particularly in the person of the president and his/her party. They can make life miserable for any USFS person who wants to buck the political power groups. So, a change in administration from Republican to Deomcrat would see a reversal in the direction of true local forest use decisions, IMO. Add in the legal action funds of special interest groups, and there is another impediemnt to local forest control.

So, you can see that the political wind of the elected administration and congress have had major impacts on who gets to control the forest use. Add this, at YOUR preferred priority level, along with your other political issues when you go to the polls and make a decision. One has to imagine that the USFS get a sick feeling in theirs collective stomachs every 2 years when national elections are held.....I sure sympathize with them!

Mark B.

 

[Flyboy]

>I recall that 100AW ran in the NF back in it's original
>incarnation in the late 70's and 80's
>
>Mark B.

Not any more. A state law (created I believe in opposition to the rally back in the day) rules out state roads. For some reason or other, the forest service won't let them use federal roads. But the county (actually counties) understand the financial impact of the event, and have opened up to the rally. One county commissioner happens to really get a kick out the event as well. If you've ever wondered why we run that little 1 mile stage just out of town with the big low water bridge...

County Road Commissioner: You can run any country roads you want, as long as run that one.

Organizers: Okay, why that one?

Commissioner: Cuz that's the one that I live on!

You see, this is the kind of crap you learn when you have an organizer for a codriver. Justin Pritchard knows what I'm talking about.

Dennis Martin
[email protected]
920-432-4845

 

[Kim 100AW]

Actually, Dennis, it's better than that. It's called Bob Johnson Road, because it is HIS road and he's the Prosecuting Attorney....and he loves the circus coming to town....especially in February.

But our commissioners are generally very cooperative for the aforementioned economic reasons. National Forest Roads are taboo for us since about 1986 when a wild paragraph found it's way into the National Forest Plan for the Mark Twain. But since then almost all of the old 100AW roads have been turned over o the counties for maintenance. We obtain a USFS permit every year to cover our spectator points (most of which are on Forest Land) and to maintain our excellent relationship with the District. If they could singlehandedly change the offending paragraph, I believe they would. At this point it would take an act of Congress. We've entered in to the "review process", but we're small potatoes compared the challenges that ATVs and Horse people have. We're simply not the loudest wheel needing grease. Besides we've got roads to race on.

As far as the recent lawsuit goes, as of this point it may affect our spectator points. It will NOT affect our course. We are in constant communication with our Forest contacts.

Kim DeMotte
Official Old Fart, etc.

 

[starion887]

Thanks for the info, Kim. If this 'offending paragraph' got into the mid-80's Use Plan, how come it is still there? Has the Mark Twain NF Use Plan not been up for review since then, or have the interest group powers been able to keep it there?

Yes, we liked Bob Johnson Road, particularly with country music blaring on the radio in the Starion loud enough to be heard through our helmets; made it easy to pretend we were Bo and Luke Duke blasting past Roscoe's house.....

Mark B.

 

[Kim 100AW]

That's getting into the swing of things! Yes, the plan has been up for review. We've been attending meetings for two years....but most meetings we can't even get on the agenda....ATV's and Horses have hundreds of folks ready to demand privleges. There are a few USFS roads we'd like to recover, but 90% of the old 100AW roads are now county roads, so we're mostly OK.

As mentioned, the current situation with the the MArk Twain people are the official Spectator Points....and, if necessary, we can move those to private or county property.

Kim DeMotte
Official Old Fart, etc.