Appealing a Forest Service Decision

The Mountain Bike Advocate's Guide to Planning and the United States Forest Service

USDA Forest Service
Southern region
ATTN: Appeals Deciding Officer
1720 Peachtree Road, NW, Suite 876S
Atlanta, GA 30367-9102

RE: Notice of Appeal of the Decision Notice and FONSI for the Linear Wildlife Openings On The Pisgah National Forest, Pisgah Ranger District

Dear Reviewing Officer:

I, William (Woody) M. Keen, hereby file this Notice of Appeal for the Decision
Notice and FONSI for the Linear Wildlife Openings, pursuant to 36CFR215.
Pursuant to 36CFR215.14(b), the Appellants provide the following information:

1) This is a notice of Appeal filed pursuant to 36CFR215.

2) The name and address of the appellant is Woody Keen (address)

3) The appellant objects to the decision to adopt Alternative III from the May 1, 2000 Environmental Assessment (hereafter EA) as communicated the January 7, 2002, Decision Notice and Finding of No Significant Impact (hereafter DN and FONSI) made for Linear Wildlife Openings (hereafter LWOs) by Forest Supervisor John F. Ramey.

4) The appellant has specific interest in this project. I have recreated in Pisgah National Forest for over 25 years. Forms of recreation include, but not limited to, hiking, backpacking, rock climbing, camping, mountain biking, trail running, and kayaking. Additionally, I have been involved in volunteer trail work for Pisgah National Forest for well over 10 years. I have standing in this decision as I have commented on the EA for this project and other Forest Service projects. I am a tax payer and thus a stake holder in our National Forests.

5) While a stay of action is in effect pursuant to 36CFR215.10(b), I formally request a stay of all action associated with the project.

6) I object to the proposal based on the following ten points:

1.The FS has failed to identify the true reasons/motivations for the closures of these roads to certain user groups. The EA and DN are nothing more than post hoc rationalization of a decision previously made and is therefore improper under NEPA.

2. NEPA has been violated because the EA fails to identify and analyze the cumulative effects of this project.

3. The EA fails to give any scientific evidence of greater impacts of mountain bikes as compared with other uses (hikers or hunters). Because of lack of supporting evidence the DN is capricious and arbitrary, and discriminatory in nature. This is a direct violation of the Federal Administrative Procedure Act, 5 U.S.C. 706(2)(A).

4. The greatest impact on these LWO roads and to wildlife is caused by the hunters who use them (not bikes or horses); therefore the proposed project fails to meet its objectives of protecting the resources (reducing disturbance of wildlife and reducing the impact on soil and vegetative resources).

5.The EA fails to provide any site-specific evidence as to what species (if any) will actually benefit from the proposed project. No Management Indicator Species (MIS) or sensitive species have been clearly identified in the EA. Additionally, no population trend studies of MIS have been included in the documentation.

6.Wildlife plots are controversial as to whether or not they are beneficial to wildlife therefore the use of them on public lands should be questioned.

7.The EA's Proposed Action has failed to indicate why keeping these roads open to mountain bike use and horses precludes them from being designated as LWO's and count them toward the grass/forbs goals stated in the LRMP.

8.The USFS is continuing to allow maintenance of roads despite many of these roads being inventoried as "temporary".

9. The decision and the process by which it was made fails to meet several of the Forest Management Direction/ Forest Goals as described in the LRMP.

10. I challenge the FONSI and find it to be arbitrary and capricious. The FONSI makes false claims relating to the quality of the human environment involved in this decision and therefore cannot be considered to be a credible document.

This is in direct violation of CEQ regulations that requires "Environmental Impact Statements shall serve as the means of assessing the environmental impacts of proposed agency action, rather than justifying decisions already made." (40CFR1502.2(g)). The EA itself identifies a meeting between USFS and NCWRC that took place in February 1995. From the EA pg. 3, "After the February 1995 meeting, it was decided between the USFS and NCWRC which roads they would continue to maintain and which ones they would no longer maintain due to the amount of recreation use occurring. Twenty-nine roads were identified at that time. Those 29 would be posted as closed to horseback riding and mountain biking." This statement clearly indicates that the decision was really made back in 1995. Further evidence of this decision can be garnered by studying the Trails Illustrated Map for Pisgah District. This map marks many of the LWO roads as being a hiking trail for foot travel only. The publication date of this map is 1996 with a revised edition in 1998. The publication date was shortly after the 1995 meeting decision. Since Trails Illustrated gets its information for these maps from the USFS, one can only assume the USFS wanted these roads marked differently from other gated off roads.

The real reason/motivation for these closures can be traced to the pressure put on the USFS by NCWRC to exclude the 2 user groups it does not like. This is best evidenced by USFS staff meeting notes found in the file for comments to the scoping letter in 1998. Mary Noel of USFS makes this comment about Rod McClannaham (who was in attendance). "Rod indicates that the Commission is not wanting to put a penny into maintenance if being used by horses/mountain bikes." Further evidence of this pressure can be found in the USFS Publication Mountain Biking: Issues and Actions for USDA Forest Service Managers (Chavez 1996). In responses from the Southern Region pg. 26 "We largely depend on closed roads to provide horse and bike opportunities, but now we are being challenged by the State Wildlife Commission who mows many of the closed roads for linear strip openings".

The fact that the USFS is willing to bow to pressure from the NCWRC to make this decision while ignoring any scientific date or responses from public input is very disturbing and violates the intent of the NEPA process.

2. NEPA has been violated because the EA fails to identify and analyze the cumulative effects of this project.

Cumulative effects are indeed difficult to theorize or quantify. However, many environmental issues and social aspects of this decision could be magnified through cumulative effects. Specifically, the EA has failed to study

a) the effects of continuing to maintain these linear openings as roads

b) the effects of these roads becoming part of loop trail systems, thereby enhancing recreational opportunities

c) the effects of jeopardizing long standing good relationships with certain user groups.

d) the effects of concentrating users

The effects of continuing to maintain these linear openings as roads:

The EA fails to recognize that the greatest disturbance to the resources (wildlife, soil and native vegetation) was caused by the initial creation of these roads. Continuing to maintain these linear openings as roads only perpetuates this initial disturbance. The EA failed to explore the effects of using lime and fertilizer on the LWO roads. In the LRMP pg III 46 under item #3 for Transportation System Management "Determine whether to incorporate into the Forest Development Road System and continue to use them as wildlife openings if water quality standards can be met...". Has the USFS done the site analysis on these LWOs to determine that water quality standards are in fact being met? The EA states that the "wildlife mix" used to seed these roads contains orchard grass and white clover. Follow up research with the USFS staff has discovered that both of these grasses are non-native and considered invasive. The LRMP states "Introduce exotic, non-native plant or animal species after coordinating with state agencies and with the approval of the Regional Forester" (pg. III-24). What state agencies were consulted and did the Regional Forester approve the use of these 2 species? This also seems to be in direct violation of Executive Order 13112 signed by President Clinton on Feb. 3, 1999, which prohibits the introduction of exotic invasive species onto public lands.

The effects of these roads becoming part of loop trail systems:

This decision also rules out the possibility of future development of good loop routes using these roads and other Forest Development roads with newly built connector trails. The LRMP suggests the development of new trail opportunities. "1. Emphasize connectors to other trail systems" (pg. III 67). "Construct new trails for horseback riding or bicycles primarily when needed to connect existing roads or trails." (Pg. III 74, 83, 91). The need to develop more recreational opportunities is not only noted in the LRMP, but is also mentioned in the EA for this project. Under the Summary of Effects (EA, pg. 8) a brief discussion is given to the growing demand for recreation and the positive effects for society it provides. "The sustainability of the recreation use is in question because recreation demand has increased within the last decade without planned expansion or maintenance of the facilities and trail systems." (Morton 1997)

We cannot fault the public for wanting to recreate in our forests and commune with nature. In fact, we should be encouraging this behavior. This is consistent with the mission of the USFS. The LRMP lists 10 over all Forest Goals with #2 on this list being "Improve the quality of life for citizens of western NC by helping to meet the basic needs of people and communities who depend on the National Forest resources for water, food, shelter, fuel, livelihood, recreation, and spiritual renewal." It would seem that with growing demand for "recreation" and "spiritual renewal" usage of the Pisgah District, the USFS would be needing to take a proactive stance to provide this opportunity and to help meet this Forest Goal. There has been very little new trail development in the Pisgah District over the last 20 years and most of what is present in the district is the remnants of the timber industry. In reality, very few trails in Pisgah District were designed with the sole purpose of meeting recreational needs. Instead, most trails have been an afterthought or at best adoptions of logging project "leftovers". The closing of 25% of total Forest Service roads to 2 user groups would not move the Forest towards the stated need and goal, but would instead be a step backward.

The effects of jeopardizing long standing good relationships:

A decision based on discrimination and pressure from NCWRC, rather than based on science, logic, and public input jeopardizes long standing good relationships between the USFS and effected user groups. Both the Blue Ridge Bike Club and Pisgah Trailblazers have a long-standing positive relationship with the Pisgah Ranger District. They have contributed many thousands of volunteer hours of trail maintenance. This decision is certainly not a popular one with these groups and will have a negative effect on many volunteers.

The effects of concentrating users:

Though recreational equestrian or bike riders do not use most of these roads frequently, many hunters use bikes or horses as means of transport on them. Chevaz writes, "the southern respondent noted 'I see turkey hunters riding bikes in or saying they will ride' and 'A lot of the use of mountain bikes in the Forest is from turkey hunters riding to their hunting areas on roads closed to motor vehicles.'" (Mountain Biking Issues and Actions for USDA Forest Service Managers, 1996) By allowing various forms of transportation for hunters to use, the use is dispersed. Dispersed use is a good tool for resource protection, regardless of the user. This decision would lead to greater concentration of hunters in any given area decreasing the opportunity for a harvest and decreasing safety aspects of the activity.

The EA itself is a good argument that mountain bikes have no greater impact on the resources than do hikers. I will choose not to cite specific quotes from the EA (it is expected that the appeals officer will read this in it's entirety), but instead focus on some other information not cited. The most recent study released comparing impacts of hikers vs. bikes was published by the University of Guelph, August 16, 2000. A quick synopsis of this study reveals the impacts of bikes and hikers on soils and vegetation are equal. A news release of this study is attached in Appendix B. In another study in New Zealand, Cessford writes, "It has not been established in the research done to date, that mountain bikes have greater overall impact on tracks than do walkers. However, it is obvious that mountain bikes do have some different types of impacts. The research to date indicates that it would not be appropriate to state that one is any "worse" than the other." (Cessford, G.R. 1995. Off-Road Impacts of Mountain Bikes: A REVIEW AND DISCUSSION, SCIENCE & RESEARCH SERIES NO.92)

Due to shorter duration time, the impacts on wildlife caused by mountain biking as compared to hiking was generally thought to be less. Robin Spahr found that "walkers had the highest disturbance index, as compared to bicycles" (Spahr, Boise State Univ., March 1990). A table referenced from Don Weirs book A Guide to the Impacts of Non-Motorized Trail Use (2000) indicates that mountain bikers have less impact on wildlife in 3 out of 4 categories as compared to hikers. See Appendix A.

In an email dated 2/4/02, I asked Mae Lee Hafer (Project Coordinator for the EA) if she knew of any reports that showed that mountain bikes have higher impacts on resources than hikers. Though she responded to other questions in my email, there was no response to this question. This indicates to me that she did not have any such research that she could pass on to me. Also important to question is how a mountain biker and bike with a combined average weight of 200 pounds could do damage to roads designed and built for logging equipment with average weights of tens of thousands of pounds.

Because of a lack of supporting evidence of greater impacts caused by mountain bikes, the decision is clearly discriminatory in nature. This is further evidenced by the apparent willingness by the USFS to enforce a closure to mountain bikes, but not to all users. The EA notes that a closure to all users as suggested in Other Opportunities Considered But Not Developed would be difficult, "Not only would this be very difficult to administer and enforce, it would set a total human exclusion precedent that the FS does not think is appropriate and is not willing to pursue." (EA, Pg. 2). However in Appendix C to the DN and FONSI the FS responds to comments of enforcement of closure to mountain bikes and horses by stating, "The Pisgah Ranger District has 2 law enforcement officers, one cooperative Sheriffs Deputy and 3 Game Wardens that patrol the area." The FS seemingly is more than willing to attempt enforcement of closures to mountain bikes (and horses), but not to hikers or hunters should the "closure to all users" opportunity been developed. Why is this?

This is based on simple logic as well as a close examination of the roads involved in this project. Hunting is by its very nature a consumptive form of recreation on National Forest lands. I would agree with the decision that it is a historical and legitimate use of FS lands. However, its impacts should be measured, compared, and considered in the decision. Additionally, it should not be given preference over other recreational activities, as was done in this decision.

Killing an animal is certainly the ultimate and final disturbance of that wildlife. When a kill is not made, hunting can still be quite disruptive. Though bow hunting is a quiet activity, all other forms of hunting are very loud. Firing a shotgun, rifle or muzzleloader could be argued to be one of the loudest events that happen in the forest.

Hunting is not only a consumptive use of the Forest; it leaves something behind as well. It is the only form of legal littering on public lands. A bow and arrow or gun cannot be shot without leaving some form of litter behind. This goes against Leave No Trace Ethic that the FS endorses. Mountain Bikers as a user group (excluded from the LWO roads in Alternative III) are non-consumptive and practice Leave No Trace Ethics.

Hunters are more likely to travel off trail than bikes or horses. This is evidenced by the fact that the kill more often than not will happen off the road and for the hunter to retrieve his kill off trail travel is necessary. The EA addresses trampling of vegetation as a resource concern. Logic would then suggest that due to off trail travel patterns; hunters have a greater resource impact that bikers or equestrians. It is worth noting that the off trail impact from hunters effects vegetation that is native to the Forest, while the impacts of staying on these roads only impacts vegetation introduced to these habitats.

During a 3-week period leading up to the appeal deadline, the appellant and interested parties traveled most of these roads (all LWOs south of the Blue Ridge Parkway) for on -site inspections. Over 150 photos were taken and notes on relative impacts and their causes recorded. No signs of impacts from bikes or horses were observed on these roads. Impacts from hunters were recorded in several forms: shot up beer cans and other trash, fire rings left presumably from hunter camps, shot up Forest Service signs and 21 collected shot gun shells and 1 arrow. All of the collected trash has been kept for the record and can be submitted as evidence if needed.

Signs of erosion were evident, but none were caused from recreational use. The most frequent site of erosion occurs on the back slopes of roads, where water runs off the hill above onto the steep bank cuts left by the construction of the road. (Initial proper road construction would have eliminated this problem.) Other signs of impact were related to the maintenance procedures used on these roads. A very common sign was recent use of a boom axe to mow the sides of roads. Appendix C includes photos of these procedures showing some boom axe work done 10 - 15 feet off the roadbed.

One of the items of trash found during inspections of these roads was an empty shot shell ammunition box. The lead warning on this box read as follows: "Discharging firearms in poorly ventilated areas, cleaning firearms, or handling ammunition may result in exposure to lead and other substances known to cause birth defects, reproductive harm, and other serious physical injury. Have adequate ventilation at all times. Wash hands thoroughly after exposure." Not only is lead ammunition damaging to humans, its effects on the environment are also well documented. In fact, lead shot is illegal to use for hunting waterfowl due to its effects on fish and water quality. A quick study of the Pisgah Map reveals that many of these LWO roads are located near sources of water, either crossing them or running along side streams and creeks. The effects of lead ammunition in water sources in LWO areas were not addressed in the EA.

Despite omission in the EA of MIS wildlife for this project, the appellant researched these by referencing the LRMP and the EIS for the LRMP for Pisgah/Nantahala NF. The list of MIS for Pisgah includes the following: 4 amphibians, 17 birds (including game species of wild turkey and ruffled grouse), and 9 mammals (including the most popular game species, white tailed deer).

Because of the original and continued involvement in this project by NCWRC, National Wild Turkey Federation (Pisgah Chapter) and NC Bow hunter Association, I can only speculate that the intent in this project is to improve conditions for game species (turkey and deer), thereby increasing the harvest limits for these species. It appears there was little concern given to the other MIS species. Signs located in several areas of the project area further validate the assumption that the LWOs are primarily for the purpose of increasing game species. The signs all indicate that the project areas were intended specifically for game species. Photos of these signs are located in Appendix C.

The public has long questioned projects favoring primarily game species in the NF. Comments relating to these concerns can be found in the EIS (done for the LRMP). "People were concerned that wildlife management consider all plant and animal species, not just game species such as bear, turkey, and deer." (EIS, PG S-4) "Public comments centered on the need to consider species other than those commonly hunted." (EIS, PG. II - 27). I agree with these sentiments and contend that the current management practices do not address these concerns.

Based on research, it is hard to legitimize more concern for game species, than other species in the MIS. The Terra 1 Report (Terra Reports - Southern Forest Resource Assessment, Appendix D ) shows that populations of deer and turkey for southern states were higher in 2000 than for the past 25 years. It is interesting to note that the lowest populations for these species were in 1975. This was at a time when numbers of recreational users were much lower than today and before mountain biking was a form of recreation at all! Where is the justification in excluding mountain biking from these roads on the basis of "impact to wildlife", when wildlife populations have increased since the introduction of mountain bikes as a legitimate activity in Forests. The Terra Report is consistent with other research on wildlife populations, including the NCWRC website. In fact, turkey populations are doubling every 5 years or so state wide. Since biking and horse-back riding are not exclusive to Pisgah NF, but are enjoyed state wide, it would follow that: if the population trends of wild turkey (and deer) in Pisgah NF are not consistent with state wide trends, then it cannot be blamed on bikes or horses, but there must be other mitigating circumstances not related to recreation affecting these statistics.

Other MIS and species of concern listed in the EIS and LRMP include: songbirds, black bear, squirrels and woodpeckers. No attention has been given as to how the proposed project would effect these populations.

6.Wildlife plots are controversial as to whether or not they are beneficial to wildlife therefore the use of them on public lands should be questioned.

Certainly a linear wildlife opening is the worst example of wildlife openings due to their linear nature and harsh edge habitat. Comparative photos of a LWO vs. a well designed wildlife opening are included in Appendix C. This decision could easily be argued to be more beneficial to the hunters who use these roads as compared to the wildlife living in these habitats.

The introduction of food plots for wildlife is a questionable practice. The following information taken from the NCWRC website supports this statement: " Should I plant an annual food plot for small game? At best, the answer will be a qualified 'maybe'. Annual food plots are often not what's needed to improve overall game populations on a particular property." From the Alabama DCNR website: "Too often, wildlife openings are viewed as a 'magic bean' for improving wildlife abundance and quality on a property." From the NCWRC website: "The success of white tailed deer and their wide distribution is the ability of the deer to adapt to numerous habitat types and stages of succession." This suggests that deer are not dependent on wildlife openings for survival. The site goes on to say, "In NC, cover probably will be the ultimate factor that limits deer populations." This seems to indicate that openings are not good for deer populations due to lack of cover afforded by open roads. The Terra 4 Report states "It is debatable, however, whether perpetually cleared areas are as beneficial as those left to natural succession." This seems to suggest that continued mowing and maintenance of these roads is questionable at best as a practice to positively enhance wildlife habitat.

Concerning the shape and sizes of wildlife openings, the research suggests that roads are not the most favorable openings for wildlife habitat. "Irregular shaped openings with widths of these openings being no less than 1 1?2 times the height of adjacent trees is one recommended standard." (Connecticut Department of Environmental Protection - Wildlife Division) From the LRMP for Pisgah/Nantahala NF, "Establish irregular shaped openings and avoid straight lines except as necessary along land lines." (Page III - 65)

In addition, these roads are not very suitable for grass/forb habitat due to the nature of their construction. Having origins in the timber extraction industry, they were heavily graveled and extremely compacted. Growing grass/forbs in such conditions is limited, at best. Photos showing a lack of grasses growing on these roads are included in Appendix C.

While the benefit of openings is questionable for wildlife habitat, the benefit to hunters is well documented, and thus the real purpose of LWOs surfaces. Mississippi State Univ. website notes, "Therefore, the occurrence of openings can increase the observations and harvest opportunity on a property". The NCWRC website states "food plots can facilitate the harvest and the hunter's success". The Terra Report (5.4.6) noted "roads can provide hunters and poachers with increased access into forested areas" (Natural Resources Defense Council 2000). The Terra Report (5.6) states "It is debatable, however, whether perpetually cleared areas are as beneficial as those left to natural succession. Food plots may increase the carrying capacity for certain species, but substantial increases usually are not seen. The biggest benefits to hunters and wildlife managers are increases in wildlife observations and subsequent increases in opportunities to harvest game animals".

If the proposed project was truly about protecting the wildlife and wildlife resources (early successional habitat), then perhaps what should be excluded from these LWOs is the activity of hunting, not recreational horse or bike use. The last sentence of the EA for this project (PG. 21) reads: "By creating 'sanctuaries' or 'refuges' with these roads, wildlife will have a chance to live in areas without as much human disturbance or damage to their resources" (emphasis added). Pisgah Forest does indeed have bear sanctuaries that are a joint project with NCWRC. These sanctuaries, by definition, are places where bears cannot be hunted. If this decision is upheld by the USFS, I will push for the full protection of wildlife in these areas as stated in the last closing sentence of the EA, as noted above.

The EA's "Specific Project Objectives" is based on hypothetical subjective rhetoric. The term "heavy recreational use" is not quantified in any way, has not been proven to actually be occurring on these roads, nor has it been shown that recreational use in any way impairs the designation of these roads as LWO's. Personal inspection of these roads fails to show any indication of heavy recreational use or impact from horse or bike use. No reasons are apparent why recreational use would preclude these roads from being counted as LWOs. It appears that the NCWRC is dictating to the USFS what roads can count as grass/forb habitats and meeting the goals of such habitat as stipulated in the LRMP. Furthermore, the LRMP advises that in selecting roads for grass/forb the USFS must "Select locations to avoid conflict with recreational uses" (PG III - 23). From Appendix C (to the DN), Response to Comments for LWOs, response "Seeded roads that are void of heavy recreational usage do contribute to the amount of grass/forb occurring across the NF". Also, the LRMP states, "Do not include openings which receive heavy recreation use as contributing to this standard (3% grass/forb)." These statements suggests the following: 1) that the USFS wrongly included these roads as LWOs initially (based on their assumption that some of them receive heavy recreational use) and 2) that the USFS is trying to, after the fact, reduce recreational use on these roads in order to meet the above criteria.

It should be pointed out that the FS has admitted to low recreational use of many of these roads. Proof of this comes from Appendix C to the DN under Response to Comments for Linear Wildlife Openings. In responding to the issue of greater user concentrations the Forest Supervisor states " Since these roads are spread across the district, and many of these roads aren't used currently, use will not likely be concentrated". In an email to me from Art Rowe (DR for Pisgah during most of this projects 7 year duration) dated May 22 2000, Art writes, " Thanks for your note. The linear wildlife openings issue is complex. One thing to consider is that most of these roads are not now being used by bikers or horseback riders." Because the FS is recognizing recreation use of many of these roads is low to non-existent, one has to question how then can disturbance to wildlife and resource damage be taking place.

8.The USFS is continuing to allow maintenance of roads despite many of these roads being inventoried as "temporary".

Temporary road status is intended for short-term road use (often for less than one year for a specific timber sale project) and allowing them to receive long-term, on-going maintenance violates the USFS definition of a "temporary" road. In an attempt to determine the status of each of the roads in the proposed project, I asked for this information from Charley Bowen, member of USFS Roads Staff. I was appalled to learn that neither Mr. Bowen nor any one at the District Office could answer this question. After more that 2 hours researching maps given to me by Mr. Bowen, I determined that 28 of these roads are classified as "temporary" and not inventoried in the transportation atlas. This was disturbing on many levels. The Forest Transportation System Policy calls for "The Forest Supervisor or other responsible official must develop and maintain a forest transportation atlas which is to be available to the public at administrative headquarters units" (36CFR Part 200 - Subpart A). After my research, I seemed to know more about the status of these roads than do FS employees. Also troubling was the realizations that the FS is allowing ongoing maintenance of roads that were clearly meant to be temporary. Corridor clearing and mowing of these roads constitutes a long-term management practice and therefore violates the "temporary" status given them.

The LRMP deals with roads (both system and temporary) quite a bit in many different sections. A general synopsis of the information contained in the LRMP suggests that ongoing maintenance of temporary roads should not be occurring. Under the Forest Wide Directions, Road Planning, Construction, and Maintenance, PG III - 50, "Construct temporary roads only for non recurrent use". Several of the individual management areas note "Seed temporary logging roads and skid roads with appropriate seed mixtures to provide temporary linear strip openings favoring wildlife. Restore temporary and skid roads to forest conditions". This practice is suggested for MA #1 (PG III - 60), #2 (PG III -67), and #3B (PG I-4). Ongoing seeding and mowing does not agree with "temporary" maintenance or with "restoration to forest conditions".

Of the roads contained in this project that are system roads (14 by my research), 10 of them are inventoried as Level 1 for objective maintenance levels. This level calls for the following custodial care procedures, "Routine or intermittent removal of brush and trees from the roadway is not included in this level" (PG. G - 18 LRMP). It should also be noted that in the inventory Linear Events for Routes on file at the Pisgah District, the surface type for each of these roads is listed. The majority was listed as "Agg - crushed aggregate or gravel" and a few as "Nat - native material". None were listed as having a surface type of grass (as in non-native grass/seed mix on LWOS). How then do they qualify as grass/forb habitat?

9. The decision and the process by which it was made fails to meet several of the Forest Management Direction/ Forest Goals as described in the LRMP.

Goal #10 (page III-2) states " Keep the public informed in open and honest dialogue; involve the interested and affected people in the full process of making decisions about common resources. Ensure that everyone has access to information and knows what is going on. Facilitate discussion among interested parties and enlist them in joint problem-solving." This Forest Goal has clearly been violated.

The decision making process as determined by the NFMA (1976) calls for public participation; this is documented to have only been invited long after the process of identifying LWO's had started. It is well documented in the EA that public input was only invited after the initial decision was made in 1995. This came only after an outrage from the public upon finding roads (previously open to all users as called for the in LRMP) posted closed to bikes and horses.

Certainly, the issue of "honest dialogue" has been violated at a minimum. Despite a late invitation of public input, the interest in this project is documented to be extremely high. Information coming from the FS concerning this project has not been of a very high quality and often FS employees could not answer my questions. Information sought from the forest supervisor's office often required multiple phone calls to obtain.

The DN fails to recognize and/or ignores the overwhelming consensus of respondents. The DN has also failed to thoroughly respond to the comments/concerns brought forth by the public during the EA phase of this process. In the Appendix C (DN) recognizes a total of 25 items being commented on by respondents. In the responses section the Forest Supervisor only gives 7 responses to comments. Having written a lengthy comment letter and having re-viewed many of the comment letters from others, I can say with all certainty that many comments were not responded to at all. The decision notice also ignores that respondents favored the no action alternative (#2) by a margin of 3-1. Why does the decision-making process invite public participation if the FS only plans to ignore the comments it receives? This violates the concept of "joint problem solving".

Goal #8 of the Forest Goals includes "Provide all recreation visitors of the National Forest the opportunity to participate in activities and programs and use the facilities to the highest level of access practicable". (Pg. III-2) This goal also seems to be violated in that it could easily choose to allow mountain biking on these roads but is instead favoring desires by the NCWRC to provide exclusive use by hunters.

In issuing the FONSI, the Forest Supervisor has attempted to gloss over many different aspects on how the decision will effect the human environment. The FONSI itself contradicts information contained in the DN and EA.

FONSI 7.2.4 notes, "Based on public involvement, to effects on the quality of the human environment are not highly controversial". This decision process has taken 7 years to complete starting with the meeting between USFS and NCWRC in Feb. 95. There had been a lapse of 2 years between every phase of the decision making process (Scoping letter(1998), release of the EA(2000), release of the Decision Notice 2002)). Certainly a decision that is not controversial could be made in a much shorter time frame.

The EA prepared for this project deals with the controversial nature of this decision (and project) under Public Involvement and Identification of Issues (page EA-3). "Unfortunately, the USFS did not take a proactive stance by involving all affected parties initially. So, now the FS is involved in conflict resolution. This environmental assessment is an attempt to come to resolution on this volatile subject". This sentence found in the EA clearly documents that it is indeed a very controversial project and therefore controversial decision. How can the FS use words like "conflict resolution" and volatile subject" and then claim in a FONSI that the decision is not controversial? The EA and DN also recognize that the response from shareholders of the forest ran extremely high for this project as compared with normal levels. Over 200 responses to the scoping letter were received and over 100 responses to the EA were received. Having been part of a review team (BRBC members reviewed all of the file on this project), I can report that the responses favored leaving all roads open to all user groups by a 3-1 margin.

My interaction with many of the district FS employees gives me the impression that this decision is not favored by staff who's job will be to enforce it. I had much conservation with different district staff during the appeal period, both in person, over the phone and email exchange. On several occasions, I kept notes of our interactions. In a meeting between Sierra Club leadership and the new District Ranger Ben Kizer, Ben stated, "I would have handled this a little differently, I would have preferred for the decision to have stayed at the DR (district ranger) level as opposed to the FS (forest supervisor)". I have also spoken to recreation and trails staff and my generalization from this interaction is that there is some lack of support for the decision.

I had a meeting with NC Outward Bound Operations Director Beth Anglin and assistant Jody Whitehurst at their office in Asheville on Feb. 21. Part of the meeting dealt with discussion on this Decision Notice and the EA done for this project. NCOBS has a base camp that borders USFS land and uses several of the LWO roads for mountain bike course programs. Jody and Beth had a prior meeting with USFS staff several weeks before our meeting. Discussion on the LWO proposal ensued during that meeting and Jody and Beth indicated to me they did not think the FS staff they had met with supported the decision. This is also consistent with the opinion of Chuck Ramsey who has also had much interaction with FS staff during the appeals process. At best, the decision is "luke warm" with the FS staff charged with seeing it through. I question how the FS can make a decision not favored by its shareholders (by a 3-1 margin) or some of its staff, and not consider the decision to be controversial. Further evidence of this can be determined by the media exposure this project has gotten.

There have been several newspaper articles (dating back to year 2000) dealing with this subject and also an editorial appearing in all the local newspapers. The media is only interested in this proposal due, in fact, to its controversial nature. It is expected that there will be at least 4 appeals to this decision, this simply is not indicative of a non-controversial decision.

Point # 7.2.6 of the FONSI states: "The actions in this decision will not set a precedent for future actions with significant effects not does it represent a decision in principle about a future consideration". Again, this is clearly a statement designed to gloss over the impacts on quality of the human environment involved in this project and is simply not true. The closing of 25% of gated roads to 2 popular and welcomed users groups on Pisgah District indeed sets a very bad precedent. LWO closures are already being well hidden in logging project proposals and this decision would only add to a movement to exclude recreational users from the use of roads created for timber extraction in the national forest. The Forest Supervisor has given no indications or assurances (other than this vague statement) that this project will be the final chapter in the LWO issue. One would guess that if NCWRC is successful at the scare tactics it has used (documented in this appeal) to pressure USFS into this decision; they will continue the practice of threats. Perhaps other roads will be added in other districts, this of course could be said to be segmenting the decision, which is against FS policy. Perhaps the pressure to exclude trail runners from these LWOs would be the next logical step, after all some trails runners run as fast as some mountain bikers therefore would have similar effects on wildlife. What about cross-country skiers? These points were brought up during the comment phase of the EA. No responses were given (by the Forest Supervisor) to these concerns, which also proves that the FS has failed to adequately consider feedback from shareholders in the forest. Even the DN recognizes that a precedent has been set but tries to allude that it has already happened. "The precedent has already been set in the designation of trails as to what use is allowed on them.... This decision would further refine trail management on the Pisgah Ranger District". None of the LWOs in this project are inventoried as trails, but instead as roads (many of which are temporary). The LRMP state that forest development roads are open to all users unless otherwise signed as closed. Without question, a decision to close 34 gated roads (25 miles) to 2 user groups sets a precedent, a very bad one.

In closing, though this decision may move the FS closer to grass/forb goals laid out in the LRMP (questionable at best); it certainly violates many other goals laid out in the same document. Additionally, the decision and the process by which it was made violate the NEPA process and many applicable laws, regulations, management practices, and policies. I am therefore asking for a full remand of this decision.

REQUEST FOR RELIEF

The appellant requests a stay of the Forest Supervisor's decision to approve the activities contained in his Decision Notice and FONSI.

Due to violations of applicable law and regulations outlined in this appeal, the appellants request a full remand of the Decision Notice regarding Linear Wildlife Openings on the Pisgah National Forest, Pisgah Ranger District signed by the Forest Supervisor on January 7, 2002.

Should the Forest Service decide to proceed with the proposal to close 34 gated roads to use by bicyclists and horseback riders, the appellant requests the following issues be addressed through additional analysis before proceeding:

1. Consider a full range of alternatives to the proposed action to include:
a) Signing of roads seeing little recreational use to minimize impact.
b) Through the use of a multi-user group, conduct a road by road survey, to determine the current condition, maintenance needs, and legitimate use of each road.

2. Examine the effects of the current seeding, maintenance, and mowing practices currently being used on these roads.

The appellant also requests that the formation of an advisory council for the Pisgah District be seriously considered. Formation and proactive use of such a council may help to lessen the user conflict so evident in this case.

This is the 24th day of February 2002.

Respectfully submitted,

Woody Keen

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