Another roadblock has arisen for the US Forest Service in its plan to designate forest roads and trails open to off-highway vehicles (OHVs)— this time a legal challenge.
Since 2006, US Forest Service representatives have been working with Minnesota Department of Natural Resources (DNR), Cook, Lake, and St. Louis county officials, representatives of the Grand Portage Band of Lake Superior, and the public to create a travel management plan
TMP) to let off-highway vehicle users know where they can ride in the Superior National Forest. A plan was developed and introduced in November 2008, but two appeals from the Minnesota Center for Environmental Advocacy (MCEA) to the regional Forest Service office in Milwaukee delayed the implementation planned for summer 2009. MCEA cited concerns about the impact to air quality within the Boundary Waters Canoe Area Wilderness (BWCAW), a concern that was evaluated and found to be an invalid reason to halt the implementation of the TMP. Forest Supervisor James Sanders announced plans to proceed with the TMP in March 2010. On May 6, 2010, Attorney Andrew J. Orahoske of Eugene, Oregon filed a 60-day notice of intent to sue the Forest Service over violations of the Endangered Species Act (ESA).
Speaking for his client, MCEA, Orahoske claimed that implementation of the TMP threatens the Canada lynx and gray wolf.
The charge comes despite the Forest Service’s apparent attempts to comply with the ESA. According to Orahoske’s notice of filing, the Forest Service is required to consult with the U.S. Fish and Wildlife Service (FWS) to insure that its actions do not “jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of critical habitat of such species.”
The Forest Service did consult with the FWS—in July 2004, in May 2008, in October 2008, and again in July 2009. The problem appears to be because of the varying status of the gray wolf and the Canada lynx under the ESA. In 2004, the FWS had not yet designated lynx critical habitat in Superior National Forest. In May 2008, the gray wolf was temporarily removed from the endangered species list. Although the FWS later concurred with the Forest Service that the TMP would not adversely affect the gray wolf (on October 14, 2008) and the Canada lynx (on July 21, 2009), the MCEA attorney argues that the Forest Service “must reinitiate formal consultation” with FWS.
TheMCEA notice also claims that the Forest Service failed to insure against destruction or adverse modification of critical habitat; failed to use the best available science; and failed to consult with the FWS to create an incidental “take” of endangered species. The notice states that additional threats have become apparent since the 2004 biological opinion on which the TMP is based. According to the notice the new threats include a proposed mining project on or adjacent to the Superior National Forest and the adverse impacts of climate change on lynx habitat through the reduction of deep snow conditions.
Forest Supervisor Sanders, in its previous decision notices, has stated that “consolidating OHV use is expected to, over the long run, result in lower road maintenance costs, cleaner water, improved wildlife and fish habitat, and fewer conflicts between motorized and non-motorized recreationists.”
The plan primarily places OHV traffic on roads currently being used by other motorized vehicles. The plan creates designated loop routes of 285 miles and long distance riding opportunities will increase by about 300 miles. In order to connect existing trails at various locations, a total of 2.5 miles of new trail will be constructed in Superior National Forest.
A total of 154 miles of unclassified road will be decommissioned, which means they will be obliterated.
Prior to the 2004 National Travel Management Rule, which prohibited cross-country travel, it was legal to travel with all-terrain vehicles (ATVs) not only on low standard forest roads, but also to travel crosscountry or throughout the national forest even where there were no roads. Approximately 1.3 million acres of national forest, outside of the BWCAW, were available for riding ATVs.
The Minnesota Center for
Environmental Advocacy bills itself
as “The legal and scientific guardian
of Minnesota’s environment” on
its website,
www.mncenter.org. According to IRS form 990 MCEA
has net assets of $2.24 million.
In addition to suing the Forest
Service for alleged violations of the
Endangered Species Act, MCEA “will
seek injunctive, declaratory and
other relief, including an award of
attorney’s fees, expert witness fees,
and other expenses incurred in
investigating and prosecuting this
action.”
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