Road Riporter 6.4

The Road-RIPorter Bimonthly Newsletter of the Wildlands Center for Preventing Roads. July/August 2001. Volume 6 # 4

Abuse of Power

— Bethanie Walder

Bush’s Energy Plan Paves Road to Ruin

Photos courtesy of the Oil and Gas Accountability Project (OGAP).

Q. What do you get when you mix rolling blackouts in California, a George W. - Dick Cheney White House, and national media hysteria?

A. An “energy crisis,” of course. And the solution to this “crisis” that George W. favors, at the behest of his understudy and other financiers, is increased domestic energy production.

W

hile the reality of an energy crisis is debatable, the Bush Administration is hell-bent on increasing domestic energy production, and their plan will devastate wildlands not just in the U.S., but throughout the continent. For example, the environment of Alberta Canada continues to be ravaged by natural gas production for insatiable Americans.

— continued on page 4 —

From the Wildlands CPR Office...

A

fter a somewhat freakish June snowstorm brought Missoula to a virtual standstill, summer seems to have finally arrived. So after celebrating the summer solstice, we’re preparing for various field adventures, the annual congressional appropriations battle, another intense fire season and whatever else might come our way. In this issue of the RIPorter, however, we focus on the relationship between energy exploration and increased road and motorized access. Granted, roads might be a minimal problem compared to all of the other impacts of energy development, but the contribution of energy development to increased road densities is profound. Read on for more information.

Welcome Wildlands CPR welcomes summer interns Eric Harris and Benjamin Hart. Eric is working with Ronni on an assessment of the Federal Highway Administration’s Recreational Trails Program. Benjamin will be conducting field surveys of road and off-road vehicle damage in the Custer National Forest. Eric is a second year law student at the University of Montana, and Benjamin is just finishing his undergraduate degree at University of Montana. We’re happy to have both of them on board, and even happier to Abuse of Power, p. 1, 4-5 have our first full time interns! Bethanie Walder

In this Issue

Thanks For starters, we want to thank all of the people who made contributions to Wildlands CPR through the Combined Federal Campaign - we’re thrilled with the response we’ve received during our first year in the Campaign, and hope our new members are happy with our work. We’d also like to thank the Weeden Foundation for our first-ever two-year grant! We are also grateful to the Wilburforce, Brainerd, Lazar, and Town Creek Foundations for generous grants for our overall work. We greatly appreciate these foundations’ continuing support of our roads and off-road vehicle work!

DePaving the Way, p. 3

Wildlands C Center for P Preventing R Roads Main Office P.O. Box 7516 Missoula, MT 59807 (406) 543-9551 [email protected] www.wildlandscpr.org Colorado Office 2260 Baseline Rd., Suite 205 Boulder, CO 80302 (303) 247-0998 [email protected] Wildlands Center for Preventing Roads works to protect and restore wildland ecosystems by preventing and removing roads and limiting motorized recreation. We are a national clearinghouse and network, providing citizens with tools and strategies to fight road construction, deter motorized recreation, and promote road removal and revegetation.

Bethanie Walder

Director Bethanie Walder

Regional Reports, p. 6-7

Development Director Tom Petersen

Odes to Roads, p. 8-9 Edward Abbey

ORV Grassroots Advocate Ronni Flannery

Legal Notes, p. 10-11

ORV Policy Coordinator Jacob Smith

Ronni Flannery

Roads Policy Coordinator Marnie Criley

Bibliography Notes, p. 12-13 Leslie Hannay

Program Associate Leslie Hannay

New Resources for Road Rippers, p. 14

Newsletter Dan Funsch & Jim Coefield Interns & Volunteers Benjamin Hart, Eric Harris

Correction The “Bibliography Notes” column (about the ecological effects of firelines) in our May/June newsletter (6:3) had a technical error. The article refers to mycorrhizae as a “non-native fungus” which “invited other exotic species that depend on mycorrhizae...” Technically, however, mycorrhizae are not a fungus, but an association between roots and many different species of fungus (literally: mykos = “fungus” and rhiza = “roots”). Many thanks to Than Hitt for pointing out the mistake and we apologize for the error. According to Danielle Gardner, who authored the column for us, the researchers actually conclude that the disruption caused by fire lines in the Florida marsh allows the establishment of atypical aerobic fungi because the marsh soil is exposed to air. In turn, the aerobic fungi create more complex glades ecosystems due to the newly created mycorrizal associations. “The nonmycorrizal species [those that do not require association with fungi for nutrient absorption] that occur within a sawgrass community are outcompeted by the mycorrizal species in competition for nutrients” (Taylor, D.L. and R.R. Gibbons. 1985. Use of Fire Plows in a Marsh. Fire Management Notes. 46(3): 3-6.).

2

Board of Directors Katie Alvord, Karen Wood DiBari, Sidney Maddock, Rod Mondt, Greg Munther, Cara Nelson, Mary O'Brien, Ted Zukoski Advisory Committee Jasper Carlton, Dave Foreman, Keith Hammer, Timothy Hermach, Marion Hourdequin, Lorin Lindner, Andy Mahler, Robert McConnell, Stephanie Mills, Reed Noss, Michael Soulé, Dan Stotter, Steve Trombulak, Louisa Willcox, Bill Willers, Howie Wolke

© 2001 Wildlands CPR

The Road-RIPorter July/August 2001

The Rules Are Changing — Bethanie Walder

Y

ears ago, the public realized the timber industry was leaving “beauty strips” to hide their clearcuts from us as we drove through our national forests. Fortunately, we were able to look beyond the beauty strips and fight the logging that was hidden from view. We’ve since learned that roads are enormous linear scars across the landscape, and if we can stop a road we can stop most of the resource destruction that takes place off it. But the rules are changing, and stopping the roads no longer defends wild places. It’s time to look beyond the roads. Just five years ago roads weren’t considered an issue by the media, editorial boards, lawmakers, and the American public. In the last few years, however, they have nearly become public enemy number one. Roads have become a significant liability (media-wise, ecologically and economically) to the timber and mining industries, in addition to the land management agencies themselves. But in reality, it’s not the roads themselves that are the only problem, it’s also the resource extraction, increased motorized access, and other environmental impacts that are associated with them. This poses an interesting question: If we get rid of wildland roads, but not the resource extraction that accompanies them, have we protected the land? This is not just a rhetorical question. The Rough Terrain Technologies Group, a company formed recently in Missoula, Montana, provides an excellent example. Their mission: to develop new technologies for logging without roads. Even helicopter logging takes place within a mile or two of existing roads, so to get into larger roadless areas, new technologies are needed. In addition to logging companies like Rough Terrain, mining technology has changed dramatically in the past few years. Places like the Cabinet Mountains Wilderness in Montana are now threatened with hardrock (copper and silver) mining through directional drilling. The roads and mine-sites can be placed outside wilderness, while the drills bore underneath to extract the resource. In the Cabinets, they propose to hollow out a large tunnel, leaving 30-40 percent of the rock in place as pillars to keep the overburden from collapsing. The mine opening would be within a mile of the wilderness boundary, with the remainder tunneling 3 miles into the ore body, beneath the wilderness. The technology for extracting resources, whether minerals, oil, gas or trees, has improved over time (grazing hasn’t changed much, there’s just more of it), but even less harmful (and typically more expensive) technologies are not harmless. It certainly is not up to the federal government to provide low-cost opportunities for destructive resource extraction on public lands. If the industries don’t want to log or mine in a less-impacting manner, then they can go elsewhere. More importantly, there are certain places where resource extraction just doesn’t belong with, or without roads. But these changing technologies raise another important question: If resources are extracted from wildlands, without roads, are these lands still wild?

and removed immediately thereafter, that the land and water will still be impacted. Fighting roads is not enough. As we’ve progressed in our battles against roads, so too have the industries progressed in their technologies to destroy nature without roads. To protect wild nature, then, we must make difficult decisions about what activities are appropriate in what places. We must, actually, choose which places we want to remain wild. And we must protect nature from the activities that accompany roads, in addition to protecting her from the roads themselves. Is a roadless area filled with stumps still a place that can harbor wildlife, provide clean water and provide opportunities for nonmotorized recreation? Or more philosophically, is a wilderness area with a huge hole underneath it still intact and pristine, or is its fundamental character changed? Wildness means different things to different people, with a motorized trail being wild in one person’s eyes, and the peak of an unnamed mountain being wild in another’s. But for those who believe that the earth is a living thing, for those who believe the earth has its own spirit; ripping the belly out of a mountainside and leaving the surface untouched does not leave that place intact and wild, it leaves it scarred and violated, physically and emotionally. The spirit of the land may reside in its deepest parts. With the copper and silver ore, we also extract its heart.

Wildness We cannot begin to understand all of the interconnected ways nature works. We can, however, understand that just because no road is used to cut trees, the land and water will still be impacted. We can understand that even if a temporary road is used to log or explore for oil, Wildlands CPR file photo.

The Road-RIPorter July/August 2001

3

Abuse of Power — continued from page 1 — Roads and linear barriers may seem like a pesky side issue in the debate, but the cumulative impacts of the existing energy infrastructure combined with its proposed increase are profound. And while this article focuses on specific road-type impacts, that does not in any way diminish the other impacts of oil and gas exploration, hydro generation, nuclear power, etc.

Moving Power Roads and other linear barriers are created through energy exploration, production and distribution. Bush’s proposed increase in natural gas exploration alone would result in thousands of miles of new roads, but other linear barriers are created through energy development, including natural gas and oil pipelines, transmission lines, seismic lines, and rail lines. For example, the “National Energy Policy” (NEP) states that to match supply and demand of natural gas “will require some 38,000 miles of new gas pipelines, along with 255,000 miles of distribution lines” (NEPD, May 2001). This is in addition to the 270,000 miles of gas transmission pipelines and 952,000 miles of gas distribution lines that already exist (Morton 2001). But if these numbers sound staggering, they pale in comparison to oil pipelines... two million miles of which burrow into or sit atop US soil. While most pipelines are buried, some are above ground, such as Alaska’s North Slope pipeline, with a full-fledged 414-mile maintenance road alongside it. One of the most contentious roads in Alaska, the Haul Road was originally closed to the public but is now promoted as an adventure driving destination. Whether above or below ground, pipelines require a right-of-way and clearance for maintenance. Roads and rights-of-way can function as barriers to wildlife movement, and/or disturb hydrologic systems. They also invite legal or illegal off-road vehicle use, increasing wildlife disturbance. In addition to pipelines, the United States boasts 157,810 miles of transmission lines, with another 47,000 in the rest of North America. According to the National Energy Policy, transmission grid expansions are likely to total about 7,000 miles over the next ten years (NEPD 2001, p. 7:5). While the number of oil and gas pipelines dwarves the number of electric transmission lines, most electric lines are above ground. Electric lines often follow roads, but can be independent of them, creating additional linear barriers to wildlife movement. While energy is moved across the entire landscape, the Bureau of Land Management (BLM) estimates that 90 percent of pipeline and transmission rights-of-way in the western US are on federal lands (NEPD 2001). And

according to the NEP (p. 7-8), BLM administers 23,000 rights-of-way for oil and gas pipelines and 12,000 rights-of-way for electric transmission lines. (Similar numbers were not cited for Forest Service lands.) Despite these facts, Bush’s energy plan (NEPD 2001, p. 7:8) claims that one cause of electric transmission constraints is limited access to federal lands. Based on this faulty conclusion, the NEP recommends streamlining permits and easing the siting process, for facilities and rightsof-way, on both public and private lands. While the policy pays lip service to environmental sensitivity, in actuality, it would undo the limited safeguards that now exist.

Energy Extraction Access to federal lands is an issue for energy extraction as well as energy transmission. The NEP states that nearly 30 percent of all domestic energy production now comes from federal lands (except national parks) (NEPD 2001, p. 5:7). On BLM lands, this equates to approximately 50,000 active oil and gas wells (Albersworth 2001). The majority of future oil and gas potential on public lands occurs along the Rocky Mountain front, though non-conventional energy extraction threatens landscapes across the country. According to the Oil and Gas Accountability Project (based on a report from the National Petroleum Council), 91% of natural gas under federal public land in the Rocky Mountains is already accessible. Of that, 59% is open to production under standard lease terms and no additional restrictions, and 32% is open with some restrictions, including minor delays or cost increases. Only 9% of the “resource bearing lands in the Rockies are completely inaccessible due to ‘no leasing’ and ‘no surface occupancy’ restrictions” (NPC Report Summary as cited in OGAP fact sheet.) And yet, the Bush Energy Policy decries excessive restrictions on energy development from public lands. All photos with this article courtesy of the Oil and Gas Accountability Project (OGAP).

4

The Road-RIPorter July/August 2001

“The NEPD [National Energy Policy Development] Group recommends that the President direct the Secretary of the Interior to examine land status and lease stipulation impediments to federal oil and gas leasing, and review and modify those where opportunities exist (consistent with the law, good environmental practice, and balanced use of other resources.) • Expedite the ongoing Energy Policy and Conservation Act study of impediments to federal oil and gas exploration and development. • Review public lands withdrawals and lease stipulations, with full public consultation, especially with the people in the region, to consider modifications where appropriate” (NEPD 2001, p. 5:7). Oil and gas exploration and production require different levels of roading, but most regulations do not require that roads be removed after extraction. Drill sites may be restored, but the roads often remain. In Alberta, for example, most exploration has been done with seismic lines: oil and gas companies set seismic charges along a grid, detonate them, and test for reserves. Trucks carry the equipment, typically on low-grade, temporary roads. If oil or gas is found, then permanent roads are built to each well. Unlike logging roads, which are used mostly during a logging operation, oil and gas roads are used daily over the life of the well, which can be decades. And if the wells are on public lands, the roads may be open to public use. The Forest Service already has a network of at least 60,000 miles of unclassified roads. Some of these roads are likely from oil and gas exploration — temporary roads that were never removed, despite the agency’s rules. They foster increased off-road vehicle use, whether legal or illegal.

Take a Powder Wyoming’s Powder River Basin provides a disturbing example of how our insatiable desire for energy may play out. Most of the basin’s natural gas is under BLM land — the entire area (public and private) is slated for 51,000 coalbed methane wells in the next 10 years. With each well, whether it’s coalbed methane extraction or conventional, will come roads, pipelines, well-pads and compressor stations (Darin and Beatie 2001). Roads are perhaps the least destructive part of coalbed methane production: of greater concern is that the wells will dump over 1 billion gallons of highly salinized water onto the ground, dewatering and compromising the ability of aquifers to recharge, affecting vegetation and soil structure, and impacting wildlife and aquatic habitat (Darin and Beatie 2001). If the Powder River Basin project results in 51,000 wells, it will also bring thousands of miles of new roads in this 20,000 square mile area. The higher the well density, the more roads and pipelines. The Basin holds approximately 25 trillion cubic feet of recoverable natural gas — the number of wells could go as high as 70,000. Remaining gas reserves in the lower 48 are estimated at 1,446 trillion cubic feet (57 times what’s in the Powder River Basin). To recover this gas, much of it through non-conventional means like coalbed methane, will require hundreds of thousands of wells and all the roads and other disturbances that go with them. Though often touted as clean, natural gas production is about as dirty as it gets.

The Road-RIPorter July/August 2001

Conclusion While George W. Bush and Dick Cheney exploit the “energy crisis” for their own, and industrial gain, the land lies naked, shrinking in the arms of its abusers. It is inevitable that the US will increase domestic energy production, but it is not inevitable that we will do so at any cost. George W. is seizing on public fear to promote bad policy that will cause the rampant roading of public lands in addition to abuses from the resource extraction itself. The Kyoto Protocol even comes into play, as attempts to reduce greenhouse gasses can provide increased demand for natural gas (though they could alternately justify cleaner, renewable energy development). The Energy Policy states, “significantly, this projected increase in natural gas generation assumes that coal electricity generation will continue to account for about 50 percent of US electricity generation. If policies are adopted that sharply lower coal electricity generation, then the likely result is an even greater dependence on natural gas generation. This creates concern about the adequacy of natural gas supplies and policies” NEPD 2001, p. 5:14. While we fight over thousands of miles of logging roads and off-road vehicle routes, it is becoming painfully clear that oil and gas development may rapidly outpace all other purposes for road development. And when other impacts and linear barriers, like pipeline and transmission line rights-of-way are considered, the cumulative impacts of energy exploration, development and distribution become almost mind-boggling. It gives new meaning and justification for the concept of “going off the grid.” For more information on energy issues, contact the Oil & Gas Accountability Project at www.ogap.org.

References Albersworth, D. 2001. Testimony to the House Resources Committee, Subcommittee on Energy and Mineral Resources, Regarding “Domestic Natural Gas Supply and Demand: The Contribution of Public Lands and the OCS.” The Wilderness Society. 3-15-01 Darin, T.F. and A.W. Beatie. 2001. Debunking the natural gas “clean energy” myth: Coalbed methane in Wyoming’s Powder River Basin. Environmental Law Reporter (News and Analysis): 5-2001 (31 ELR 10566 10602). Morton, P. 2001. Testimony to the Committee on Energy and Natural Resources, Subcommittee on Forests and Public Land Management, US Senate. The Wilderness Society. 4-26-01. National Energy Policy Development Group. 2001. National Energy Policy: Reliable, Affordable, and Environmentally Sound Energy for America’s Future, Report of the National Energy Policy Development Group. The White House. Washington, DC. May, 2001. Oil and Gas Accountability Project. 2001. Fact Sheet: Industry Reports Vast Amount of Federal Public, Private and Indian Lands Open to Natural Gas Development.

5

Regional Reports & Updates Road Management Strategy Update Bosworth issues interim Directive Weakening Roads Rule Forest Service Chief Dale Bosworth issued an interim directive effective May 31, 2001 that extends the deadline for requiring roads analysis (for road management decisions and forest plan revisions or amendments) from July 12, 2001 to January 12, 2002. The specific language in the Forest Service Manual is as follows: 1. Analysis Needed to inform Road Management Decisions. Section 7712.13 identifies proposed road management decisions other than forest plan revisions or amendments that require roads analysis and provides guidance on the scope and scale of various levels of analysis that might inform those decisions. The following deadlines govern the application of roads analysis to the proposed road management decisions identified in sections 7712.13 through 7712.13c: a. Decisions made before January 12, 2002, do not require a roads analysis. b. Decisions made after January 12, 2002, must be informed by a roads analysis. 2) Forest Scale Road Analyses. Every National Forest System administrative unit must have a forest-scale roads analysis completed by January 13, 2003, except as follows: a. Those units that will complete a forest plan revision or amendment by January 12, 2002, do not need to complete a forest-scale roads analysis (FSM 7712.1) prior to adopting the plan revision or amendment. However, these units are still required to complete a forest-scale roads analysis by January 13, 2003.

b. Those units that have begun revision or amendment of their forest plans but will not adopt a final revision or final amendment by January 12, 2002, must complete a roads analysis prior to adoption of the final plan revision or amendment. c. Where additional time is needed for completion of forest-scaleroads analysis, a Forest Supervisor may request approval from the Regional Forester for an extension. In making such a request, the Forest Supervisor must provide a statement of the reason(s) the extension is needed. Further, Bosworth said in a May interview that changes also are expected for the portion of the roads rule that gives interim guidelines for managing roadless areas prior to the implementation of the roadless rule. The agency will collect public comments on the changes that the interim rule made when a notice is published in the Federal Register later this month. We’ll keep you updated on opportunities for public comment. As with the Roadless rule, this is yet another attack from the current administration on protecting our public lands from road impacts.

Florida Highway A Deathtrap For Endangered Panther Six Florida panthers, between eight and twenty percent of the entire remaining population, have been killed on Florida highways in 2001. The recently released data indicate that five of the six deaths occurred in southwestern Florida on State Road 846, dubbed “Slaughter Alley” by a local newspaper. The deaths, all of which have occurred in the past three months, have resulted in the worst death rate in 18 years. The Florida panther, which once roamed across the southeastern United States, now teeters at the brink of extinction, with an estimated total remaining population of between 30 and 80. Habitat fragmentation and degradation as well as human disturbance, including roadkill, have been the primary causes of the cat’s dramatic decline. Photo by Brian F. Call. c 2001.

6

The Road-RIPorter July/August 2001

BLM Closes Surprise Canyon To Off-Road Vehicles As part of a settlement of the big desert lawsuit (see RIPorter 6:3), the Bureau of Land Management (BLM) has closed Surprise Canyon to motorized vehicles. Adjacent to California’s Death Valley National Park, Surprise Canyon is an important habitat and water source for wildlife in this ultra-arid part of California. The lawsuit was brought by the Center for Biological Diversity (CBD), Public Employees for Environmental Responsibility, and Sierra Club. It bans motor vehicle use in the canyon immediately, and at least until the BLM completes its National Environmental Policy Act and California Desert Conservation Area Plan amendment processes. Surprise Canyon is known to harbor the rare endemic Panamint alligator lizard and is potential habitat for endangered riparian obligate birds such as the Southwestern willow flycatcher and Least Bell’s vireo. For years, the BLM had allowed unregulated extreme off-road vehicle use of Surprise Canyon. Off-road vehicles regularly winched-up unique waterfalls, cut native vegetation and spilled oil & gas into the water.

Photo by Daniel Patterson, Center for Biological Diversity.

“Protecting Surprise Canyon guards the essence of biological diversity in the California Desert,” said Daniel Patterson, CBD’s Desert Ecologist.

Forest Service Must Restore Wilderness Study Areas A federal judge has ordered the Forest Service to restore seven Wilderness Study Areas in Montana to the wild state in which they existed 24 years ago and then maintain them in that state as Congress ordered. The Montana Wilderness Study Act prohibited the Forest Service from taking any action in any Montana Wilderness Study Area that diminishes the wilderness character of the area as it existed in 1977 or that diminishes the area’s potential for inclusion in the National Wilderness Preservation System. According to the lawsuit filed in 1996 by the Montana Wilderness Association, American Wildlands and Friends of the Bitterroot, that has not happened. These groups note that the Forest Service has built trails for new types of all-terrain vehicles, expanded snowmobile grooming and issued permits for mining exploration within these areas. According to U.S. District Court Judge Donald Molloy’s ruling, there can be no degradation of the wilderness character of the Big Snowies, Bluejoint, Middle Fork Judith, Sapphires, Ten Lakes, West Pioneers or the Hyalite-Porcupine-Buffalo Horn areas until Congress acts. John Gatchell, conservation director with Montana Wilderness Association (MWA), said environmentalists “tried and tried” to gain the Forest Service’s cooperation voluntarily, but finally resorted to the court for help. “Dozens and dozens of hiking trails were opened to ATV use without any public process,” he said.

The Road-RIPorter July/August 2001

Roadless Rule Reopened The U.S. Department of Agriculture (USDA) has decided that the first roadless rulemaking process, which generated 1.6 million comments, over 90% of which favored roadless protection, wasn’t fair and open enough. Therefore, on July 6 the USDA announced that it is moving forward once again to attempt to develop “protections for roadless areas.” Through an Advanced Notice of Proposed Rulemaking (ANPR), the USDA will seek a sixty day public comment period to help determine the next steps in “providing long term protection of roadless areas.” The ANPR, which as of this writing should be available for inspection at the Federal Register, lists several questions for the public to consider regarding roadless area values and future protection and management of inventoried roadless areas in national forests and grasslands. According to Mike Anderson of The Wilderness Society, the ANPR displays a strong bias for abandoning the Roadless Rule in favor of the Forest Service’s traditional forest-by-forest planning process. For more information contact Marnie Criley at Wildlands CPR at 406-543-9551.

7

Federal Court Closes the Gate on R.S. 2477 Claims — Ronni Flannery

C

ollectively, counties, local governments, and in a few cases private parties have asserted jurisdiction over tens of thousands of R.S. 2477 rights-of-way. They would use the 135-year-old mining law to gain motorized access to and “improve” so-called highways (in many cases, two-tracks, cow paths, and river bottoms) across BLM lands, Forest Service lands, National Parks, and even designated Wilderness areas. Enacted as part of the Mining Act of 1866, R.S. 2477 provides - in full - that: “The right-ofway for the construction of highways over public lands, not reserved for public uses, is hereby granted.” R.S. 2477 was later repealed by the Federal Lands Policy and Management Act of 1976 (FLPMA), however, the repeal was not retroactive but was explicitly subject to valid existing rights. In other words, R.S. 2477 rightsof-way that were perfected prior to 1976 are valid notwithstanding FLPMA. Thus began the rush of anti-Wilderness advocates claiming to have perfected rights-of-way pre-dating 1976. For decades, a debate has raged over what exactly is required to perfect an R.S. 2477 rightof-way. To have a valid R.S. 2477 right-of-way, of course, one must have “constructed” a “highway” over “public lands” that, at the time, were not “reserved for public uses.” Not surprisingly, these terms and phrases have meant different things to different people. The handful of federal court decisions dealing with R.S. 2477 have not definitively settled the matter. Until now....

Federal Court Limits R.S. 2477 Application Just before press time a federal district court in Utah decided a case filed by the Southern Utah Wilderness Alliance and the Sierra Club (SUWA, et al v. BLM, et al), and sharply limited the ability of local governments to claim jurisdiction over trails across federal lands. The court upheld BLM’s rejection of several purported R.S. 2477 highways, and in the process construed key R.S. 2477 terms and phrases. This decision has tremendous precedential value for activists fighting these “phantom roads.” It will also likely be appealed to the 10th Circuit. “Construction:” First, the court agreed with the BLM that “construction” means “mechanical construction” and requires “purposeful, physical building or improving.” Neither the mere passage of vehicles across the land, nor haphazard, unintentional, or incomplete action could suffice. The court based its ruling on a number of factors. First, the plain meaning of the word “construction” was entirely consistent with BLM’s position. Second, BLM’s interpretation comported with the federal land use policy objectives in FLPMA. Finally, BLM’s interpretation was strengthened by the fact that the Department of Interior - the agency charged with enforcing R.S. 2477 had consistently (and for years) taken the position that “construction” requires “actual building.” According to the court, “[i]t is unlikely that Congress would have intended that the term ‘construction’ in R.S. 2477 be read in a way that might have rendered later attempts to determine what rights-of-way had been established nearly impossible.” Relying on Utah state law, the county claimants had argued that “continued use” was sufficient to constitute “construction.” Finding no contrary judicial precedent directly on point, and observing that state law “cannot be used to ‘disregard or emasculate’ the meaning of R.S. 2477,” the court declined to apply state law. Instead, the court applied established principles of statutory construction, and accordingly adopted the “most persuasive” interpretation - that of the BLM. “Highway:” The court likewise agreed with the way the BLM interprets the term “highway.” According to the BLM, R.S. 2477 “highways” must be public in nature, and must have been so when the underlying lands were available for R.S. 2477 purposes. This would disqualify routes used by “a single entity” or those “used only a few times.” Moreover, R.S. 2477 “highways” must connect the public with “identifiable destinations or places” and cannot exist independently of destinations “used by and open to the public.” “Not Reserved for Public Uses:” The court’s ruling on this point is not necessarily applicable to all R.S. 2477 claims, but it does have enormous implications for lands that the federal government had set aside solely for coal development. The court upheld BLM’s conclusion that these lands were “reserved for public uses” for purposes of R.S. 2477. The upshot is that R.S. 2477 rights-of-way on these lands are not valid unless perfected prior to the reservation.

An R.S. 2477 claim through Utah’s canyon country. Photo courtesy of Southern Utah Wilderness Alliance (SUWA).

8

The Road-RIPorter July/August 2001

R.S. 2477 Claims on Forest Service vs. BLM Lands Most commonly, R.S. 2477 disputes involve alleged rights-of-way on public lands managed by the Bureau of Land Management. Less typical are R.S. 2477 claims associated with Forest Service lands. While admittedly fewer in number, R.S. 2477 claims on Forest Service lands are no less troublesome, and they similarly have threatened - and will continue to threaten - wild, forested areas throughout the West. For example, the existence of an R.S. 2477 right-of-way is one of several arguments that private litigants are advancing to support their desire to construct and improve a 20-mile “road” through designated Wilderness in Montana. Elsewhere in Montana, motorized advocates appear to be trying to set up an R.S. 2477 claim to get an illegal snowmobile trail - previously closed and revegetated - re-opened. The Rio Grande National Forest in Colorado and the Jarbidge National Forest in Nevada are other national forests that have served as settings for R.S. 2477 disputes. It is fairly well known that on BLM lands, only those rights-of-way that were perfected prior to FLPMA’s effective date - October 21, 1976 - are valid. All others are subject to FLPMA’s statutory scheme for issuing rights-of-way over public lands. Perhaps less well known is that Forest Service lands stand on a slightly different footing vis a vis R.S. 2477 claims. The distinction - however subtle - can make all the difference to activists fighting R.S. 2477 “highways” on Forest Service lands. Even though it was FLPMA - enacted in 1976 - that repealed R.S. 2477, R.S. 2477 itself, as discussed above, specifies that only those “highways” that were “constructed” prior to the public land in question being “reserved for public purposes” may be valid. Unlike BLM lands, most Forest Service lands were “reserved” in this sense decades ago.

Photo courtesy of SUWA.

With the passage in 1891 of the National Forest System Enabling Act, national forests were closed - with limited exceptions - to any further unilateral appropriations of public land for roads and trails. So, unlike BLM lands - on which R.S. 2477 rights-of-way may be valid if perfected prior to 1976 - R.S. 2477 rights-of-way on Forest Service lands must have been perfected before the forest at issue was reserved in the first place.

In Adams v. United States, the Ninth Circuit Court of Appeals explained that “[t]o establish [a valid RS 2477 claim], [a claimant] must show that the road in question was built before the surrounding land lost its public character ....” See Adams, 3 F.3d 1254, 1258 (9th Cir. 1993). National Forests either lost their public character in 1891 when, with the passage of the Enabling Act, they formally became a part of the National Forest System, or at whatever later point such forests were officially added to the System. In the Adams case, the relevant date was November 5, 1906 - the date on which President Roosevelt “reserved” the lands now called the Toiyabe National Forest. The R.S. 2477 claim thus failed because there was no credible evidence showing that the road in question came into existence prior to 1906.

An eroded gully mistaken for a highway in Garfield County, Utah. Photo by Jim Thompson.

Conclusion The decision issued in the Southern Utah Wilderness Alliance case holds considerable promise for activists who are now or who may in the future find themselves challenging the validity of R.S. 2477 rights-of-way on public lands. This decision for the first time and in plain and definitive terms offers judicial interpretations of several key terms in R.S. 2477. The case should make a big difference in how public land managers and other decision-makers evaluate R.S. 2477 claims. Finally, for activists who focus on Forest Service lands, it is important to keep in mind that it is more difficult to establish R.S. 2477 claims there. Claimants have a higher burden of proof in that they must prove that the right-of-way was established prior to the time that the particular forest was reserved in the first place. — Ronni Flannery began working for the National Trails & Waters Coalition in September 2000 and provides legal and strategic assistance to grassroots organizations and individual activists challenging off-road vehicle use on public lands. Ronni has a BS from the University of Wisconsin, and a JD from University of Wisconsin Law School. She works out of the Wildlands CPR office in Missoula, MT.

Finally, remember that even valid R.S. 2477 highways are subject to regulation by the Forest Service. Clouser vs. Espy, 42 F.3d 1522, 1537-38 (9th Cir. 1994)

The Road-RIPorter July/August 2001

9

Bibliography Notes Bibliography Notes summarizes and highlights some of the scientific literature in our 6,000 citation bibliography on the ecological effects of roads. We offer bibliographic searches to help activists access important biological research relevant to roads. We keep copies of most articles cited in Bibliography Notes in our office library.

Effect of Roads on Arthropods — Leslie Hannay

A

rthropods make up a significant part of the biodiversity on this planet, and are important in many ways to the overall health of ecosystems and to our understanding of natural biotic systems. At the base of many food chains, arthropods are important components of the diets of invertebrates and birds, and are also an integral part of the nutrient- and energy-processing abilities of the soil (Coleman & Crossley 1996). Arthropods also tend to demonstrate opportunism and rapid response to change. By studying arthropod responses to ecological change, we can better understand the effects of human disturbance and landscape modification on terrestrial systems (Morris 2000, Major et al 1999). The impact of roads on arthropods is considerable. Roads affect terrestrial arthropods directly by destroying their habitat, and by increasing the risk of being crushed by vehicles or trampled by pedestrian traffic. Roads also fragment arthropod habitat, exacerbate the spread of exotic and invasive species, and create pollution in the air and on the ground.

Habitat Destruction Roads destroy arthropod habitat on the road bed itself and on road verges by altering vegetation, changing soil dynamics, and modifying microclimates. The most obvious effect is the conversion of habitat into road surfaces. Vegetation is replaced by less permeable surfaces, thereby eradicating food sources, nesting areas, and hiding places that are essential to arthropod survival (Mader 1984). Similarly, soil dynamics are modified by road construction, which flattens terrestrial niches and causes substantial soil compaction. This contributes to increased runoff and decreased soil porosity, which

10

impede arthropod survival in the immediate area of the road (Noss 1999). Microclimate also changes as a result of road construction. Road surfaces tend to absorb solar radiation at a higher rate than unmodified surfaces, increasing soil and air temperatures. Increased wind due to the removal of vegetation around the road, as well as the reduced capacity of the soil to retain moisture due to compaction, combine with these higher temperatures to create a more arid and hotter microclimate above the road surface (Haskell 2000). The conversion of habitat along roadsides is also significant. Often, the disturbed areas on either side of a road support entirely different vegetation from that which was present before road construction; the effects upon forest fauna may persist up to 100 meters from the road itself (Haskell 2000). This altered vegetation sustains different species with varying success, due to changes in nesting habitat, food supply, and opportunities to hide from predators. Roadsides may receive a greater influx of nutrients from passing vehicles, increased water availability, and nearby agricultural landscapes, resulting in a greater abundance of weeds on roadsides (Major et al 1999). The composition of plant and animal species on road verges will differ notably from non-roadside habitats, which intensifies competition and broadens the disturbed area (Mader 1984). Even in cases where roadside plants remain the same, the physiology and growth of these plants, and the insects they sustain, often differs completely from areas that are more distant from roads (Martell 1995, Lightfoot & Whitford 1991, Spencer et al 1988). Frequent mowing along roads contributes to the environmental instability of roaded areas (Morris 2000). A common response of arthropods to shortened vegetation is a reduction in the abundance and diversity of most groups and species. Such unstable conditions favor a few opportunistic and robust species, often nonnative, to the detriment of those that are slower to adapt (Morris 2000, Mader 1984, Hollifield & Dimmick 1995, Haskell 2000). The combined effects of changing roadside vegetation may lead to a more uniform set of species, an eventuality that increases the chance of local extinction, especially of small populations of flightless groundforaging insects (Vermeulen 1994). As previously mentioned, roadsides also change microclimates (Major et al 1999, Mader 1984). In one study, increased aridity and temperature on tropical forest roadsides diminished insect diversity up to 40 meters from the road, which acutely affected insectivore populations in the study area (Grindal and Brigham 1998).

The Road-RIPorter July/August 2001

Roadkill and Trampling Although there are no figures for arthropod roadkill, it is known to have a major impact on roadside arthropod populations (Oxley & Fenton 1974, Mader 1984). In one study of ORV impacts on desert biota, it was observed that arthropod tracks were found 24 times as often on sites that were closed to motorized traffic as on ORV-impacted sites (Luckenbach and Bury 1983). Treading by humans has also been detrimental to arthropods. Even moderate trampling (5 treads per month) reduced a wide range of invertebrate species by up to 82 percent over a twelve-month period (Morris 2000). Road construction also contributes to direct mortality of slowermoving, flightless arthropods, which cannot avoid being crushed by construction machinery.

Habitat Fragmentation Roads constitute major barriers to arthropod dispersal (Mader et al 1990, Haskell 2000, Vermeulen 1994). Linear barriers affect the movement of ground-dwelling animals, stimulating lengthwise dispersal and inhibiting lateral movement (Mader et al 1990). This reluctance of arthropods to cross roads may be due to changes in microclimate at road edges, pollution and noise from traffic, environmental instability, changes in the composition of flora and fauna along roads, and the immediate danger to animals of being killed by oncoming traffic. Carabid beetles have been found to avoid crossing road shoulders almost entirely, and were not observed ever crossing the road itself (Mader 1984). Despite the theoretical value of roads as connective corridors for recolonizing areas, studies on arthropods have shown that they tend to travel only short distances in a year. This suggests that roads act as a mechanism for the infiltration of opportunistic species to the detriment of local populations (Vermeulen 1993, Lightfoot 1991). Fragmentation, reduction, and isolation of carabid habitat are most likely the main causes of the significant decrease in the species since the last century (Turin 1989 in Vermeulen 1994).

Spread of Exotics, Invasives, and Opportunists Roads intensify invasion by exotic and invasive species. Humans act as vehicles for the dispersal of exotics; roads provide movement corridors, create a disturbed environment for the establishment of opportunistic species, and alter vegetation, which differentially favors some species (often pioneers or invasives) over others (Simberloff 1989, Lightfoot 1991, Noss 1999). This has been demonstrated, to the great detriment of a number of agroecosystems and agricultural economies, by crop infestation by nonlocal pests (Fye 1980, Kemp & Barrett 1989, Snodgrass & Stadelbacher 1989, Oi and Barnes 1989). For example, the balsam wooly adelgid has nearly destroyed two varieties of firs in the southern Appalachians. It has been directly linked to roads as means of dispersal (Campbell 1996).

Pollution Pollution caused by roads includes lead and fuel additive emissions from vehicles, salt from de-icing compounds, dust, ozone, exhaust fumes (cadmium, sulfur dioxide, nitrous oxides), and noise (Mader 1984, Hopkin and Howse 1998, Lightfoot & Whitford 1991, Oxley & Fenton 1974). Lead and other heavy metals from exhaust accumulate along roads and affect wildlife. A study near Washington, D.C. found increased lead, zinc, nickel, and cadmium in earthworms near roads (Oxley and Fenton 1974). Another study suggests the possible lead contamination of honey bees along a roadway (Pratt & Sikorski 1982 in Lightfoot and Whitford 1991). Salt from de-icing compounds is the most apparent source of stress on roadside systems, since salt accumulation often leaves bare patches in vegetation and visibly damages trees on road verges (Spencer et al 1988). Salt has been shown to decrease predator efficiency, change the suitability of host plants for arthropods, alter interactions between herbivores and their natural enemies, and to drastically affect the health of roadside vegetation upon which arthropods are dependent (Martel 1995, Spencer et a, Hopkin and Howse 1995). Salt accumulation also degrades soil quality, reducing the suitability of roadside habitat for soil-dwelling arthropods. Increased nitrogen levels on roadsides have been shown to increase productivity of vegetation, resulting in higher insect infestation. This increase in nitrogen may be due either to nitrous oxide emissions from vehicle exhaust, or to runoff from the road surface (Lightfoot and Whitford 1991). Not all studies have confirmed an increase in vegetal productivity, however. Overall, the roads tend to increase stress to roadside ecosystems, which makes for a less stable environment that is more vulnerable to disease and pest infestation.

Conclusion Existing road networks affect arthropod populations by destroying habitat, changing interspecies relationships, fragmenting dispersal corridors, facilitating the introduction and establishment of exotics, and polluting biotic systems. While roads generally decrease species diversity, proper restoration techniques have increased species richness by as much as 300 percent (Hollifield and Dimmick 1995). In light of the reliance of higher-level taxa upon arthropods as a food source, as well as the importance of arthropods in processing soil nutrients and energy, the impacts of roads on arthropods are important for ecosystem conservation as a whole. — Leslie Hannay is the Program Associate for Wildlands CPR.

— Bibliography on page 14 — The Road-RIPorter July/August 2001

11

New Resources for Road-Rippers CARtoons “CARtoons” is a 100 page book written and illustrated by Andy Singer and published by Car Busters. It looks at the impact of automobiles on American Society and the world. It features over 85 cartoons and illustrations as well as facts, figures, resources and a foreword by Jane Holtz Kay (author of Asphalt Nation). The images may be freely reproduced for the non-profit use of individuals or groups fighting cars. For this purpose, it comes with an optional CD-rom containing all of the images in the book (and more) in 600dpi, tif format. The book costs $6.00 and the CD-rom is $4.00 (discounts are available for bulk orders). To order, send check or money order to Andy Singer at 1849 Portland Ave. #2, St. Paul, MN 55104. Or see www.andysinger.com. The Book can also be purchased directly on line (via credit-card) from Detour Publications at: http://www.detourpublications.com/catalogue/cars.html

Bibliography

— continued from page 13 —

Campbell, F.T. 1996. The invasion of exotics. Endangered Species Bulletin. March/April 1996. Coleman, D.C. and D.A. Crossley, Jr. 1996. Fundamentals of soil ecology. Academic Press, San Diego. Fye, R.E. 1980. Weed sources of Lygus Bugs in the Yakima Valley and Columbia Basin in Washington. J.Economic Entomology 73(3):469-473. Grindal, S.D. and R.M. Brigham. 1998. Short-term effects of smallscale habitat disturbance on activity by insectivorous bats. J. Wildlife Management 62(3):996-1003. Haskell, D.G. 2000. Effects of forest roads on macroinvertebrate soil fauna of the southern Appalachian Mountains. Conservation Biology 14(1):57-63. Hollifield, B.K. and R.W. Dimmick. 1995. Arthropod abundance relative to forest management practices benefiting ruffed grouse in the southern Appalachians. Wildlife Society Bulletin 23(4):756-764. Hopkin, A.A.and G.M. Howse. 1998. A survey to evaluate crown condition of forest, roadside, and urban maple trees in Ontario, 1987-1995. Northern J. Applied Forestry 15(3):141145. Kemp, J.C. and G.W. Barrett. 1989. Spatial patterning: impact of uncultivated corridors on arthropod populations within soybean agroecosystems. Ecology 70(1):114-128. Lightfoot, D.C. and W.G. Whitford 1991. Productivity of Creosotebush foliage and associated canopy arthropods along a desert roadside. American Midland Naturalist 125:310-322. Luckenbach, R.A. and R.B. Bury. 1983. Effects of off-road vehicles on the biota of the Algodones Dunes, Imperial County, California. J. Applied Ecology 20:265-286. Mader, H.-J. 1984. Animal habitat isolation by roads and agricultural fields. Biological Conservation 29:81-96. Mader, H.-J., C. Schell, P. Kornacker. 1990. Linear barriers to arthropod movements in the landscape. Biological Conservation 54:209-222. Major, R.E., D. Smith, G. Cassis, M. Gray, and D.J. Colgan. 1999. Are roadside strips important reservoirs of invertebrate

12

diversity? A comparison of the ant and beetle faunas of roadside strips and large remnant woodlands. Australian J. Zoology 47:611-624. Martel, J. 1995. Performance of Eurosta solidaginis (diptera: Tephritidae) and Epiblema scudderiana (Lepidoptera: Tortricidae), Two gall-formers of Goldenrod, in roadside environments. Environmental Entomology 24(3):697-706. Morris, M.G. 2000. The effects of structure and its dynamics on the ecology and conservation of arthropods in British grasslands. Biological Conservation 95: 129-142. Noss, R. 1995. The ecological effects of roads, or, the road to destruction. The Road Ripper’s Handbook, Wildlands Center for Preventing Roads, Missoula, MT. Oi, D.H. and M.M. Barnes. 1989. Predation by the western predatory mite (Acari: Phytoseiidae) on the Pacific spider mite (Acari: Tetranychidae) in the presence of road dust. Environmental Entomology 18(5):892-896. Oxley, D.J. and M.B. Fenton. 1974. The harm our roads do to nature and wildlife. J. Applied Ecology 11:51-59 Simberloff, D. 1989. Which insect introductions succeed and which fail? in Biological Invasions: A Global Perspective. Edited by J.A. Drake, H.A. Mooney, F. diCastri, R.H. Groves, F.J. Kruger, M. Rejmanek andM.Williamson, New York: Wiley. Snodgrass, G.L. and E.A. Stadelbacher. 1989. Effect of different grass and legume combinations on spider and ground beetle populations in roadside habitats in the Mississippi Delta. Environmental Entomology 18(4):575-581. Spencer, H.J. and G.R. Port. 1988. Effects of roadside conditions on plants and insects. II. Soil conditions. J. Applied Ecology 25:709-715. Spencer, H.J., N.E. Scott, G. R. Port, and A. W. Davison. 1988. Effects of roadside conditions on plants and insects. I. Atmospheric conditions. J. Applied Ecology 25:699-707. Vermeulen, H.J.W. 1994. Corridor function of a road verge for dispersal of stenotopic heathland ground beetles Carabidae. Biological Conservation 69:339-349.

The Road-RIPorter July/August 2001

Membership and Order Information Printed Materials

On-Line Resources

Road-Ripper's Handbook ($20.00, $30 non-members) —A comprehensive activist manual that includes the five Guides listed below, plus The Ecological Effects of Roads, Gathering Information with the Freedom of Information Act, and more! Road-Ripper's Guide to the National Forests ($5, $8 non-members) —By Keith Hammer. How-to procedures for getting roads closed and revegetated, descriptions of environmental laws, road density standards & Forest Service road policies. Road-Ripper's Guide to the National Parks ($5, $8 non-members) —By David Bahr & Aron Yarmo. Provides background on the National Park System and its use of roads, and outlines how activists can get involved in NPS planning. Road-Ripper's Guide to the BLM ($5, $8 non-members) —By Dan Stotter. Provides an overview of road-related land and resource laws, and detailed discussions for participating in BLM decision-making processes. Road-Ripper's Guide to Off-Road Vehicles ($5, $8 non-members) —By Dan Wright. A comprehensive guide to reducing the use and abuse of ORVs on public lands. Includes an extensive bibliography. Road-Ripper’s Guide to Wildland Road Removal ($5, $8 nonmembers) —By Scott Bagley. Provides technical information on road construction and removal, where and why roads fail, and how you can effectively assess road removal projects. Trails of Destruction ($10) —By Friends of the Earth and Wildlands CPR, written by Erich Pica and Jacob Smith. This report explains the ecological impacts of ORVs, federal funding for motorized recreation on public lands, and the ORV industry’s role in pushing the ORV agenda.

Visit our Web Site: www.wildrockies.org/WildCPR. You’ll find educational materials, back issues of The Road-RIPorter (including all our bibliography, legal and field notes), and current action alerts. Also at the site, we’ve got a link to an ORV Information Site with an interactive map-based database on each National Forest’s ORV Policy. Now available on our site: Ecological Impacts of Roads: A Bibliographic Database (Updated Jan. 2001) — Contains approx. 6,000 citations — including scientific literature on erosion, fragmentation, sedimentation, pollution, effects on wildlife, aquatic and hydrological effects, and other information on the impacts of roads. Subscribe to our on-line list-serves. Check the boxes below on the member form and receive Skid Marks and/or our Activist Alert over E-Mail.

Refer a friend to Wildlands CPR! Send us the names and addresses of friends you think may be interested in receiving membership information from Wildlands CPR.

WILDLANDS CPR MEMBERSHIP/ORDER FORM I want to join (or renew my membership with) Wildlands CPR: $250

$100

$50 business

Send me these Wildlands CPR Publications: Qty:

Title/Price Each:

Total:

/ $30 standard Type of Membership:

$15 low-income Individual

Other Organization

/ Name

Total of all items: Affiliation Address

Phone/E-mail Please send this form and your check to: Wildlands CPR • PO Box 7516 • Missoula, Montana 59807

The Road-RIPorter July/August 2001

Prices include shipping: for Priority Mail add $3.50 per item; for Canadian orders, add $6.50 per item. International Membership — $30 Minimum . All prices in U.S. Dollars Ask about reduced rates for items ordered in bulk. Check here to receive our new ORV and road E-mail newsletter, “Skid Marks,” every few weeks. Check here for our E-mail Activist List. Please remember to include your e-mail address!

13

Visions...

Photo by Daniel Patterson.

Non-profit Organization US POSTAGE PAID MISSOULA, MT 59801 PERMIT NO. 569

Wildlands Center for Preventing Roads P.O. Box 7516 Missoula, MT 59807 To see ten thousand animals untamed and not branded with the symbols of human commerce is like scaling an unconquered mountain for the first time, or like finding a forest without roads or footpaths, or the blemish of an axe. — Beryl Markham West With the Night Kenya, 1942 The Road-RIPorter is printed on 100% post-consumer recycled, process chlorine-free bleached paper.