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New Mexico

Forest Service

Last Updated: July 31, 2011

The Travel Management decisions on the Gila and Santa Fe National Forests will determine our motorized access on some three and half million acres of public land. Those decisions have not been made yet. We haven’t talked about this for many months because we’re in a waiting period. Both of those forests will issue their Decision in the coming months. The Santa Fe National Forest released their draft Environmental Impact Statement (EIS) in August of 2011; the comment deadline was mid-September. The Gila National Forest released their draft EIS in January of this year with a comment deadline in March. NMOHVA and the rest of the public had to submit their comments for each forest during the respective comment period. The Santa Fe website now says their Decision will be released in August. The Gila is likely to be even much later.

When the comment period ends, the first thing the forest staff does is make two piles. They separate ‘substantive’ from ‘non-substantive’ comments. There will be a really BIG pile of non-substantive comments. Each forest is likely to receive many thousands of form letters generated from environmentalist websites and mass mailings. But these form letters are not substantive comments. There will be a small pile of substantive comments; the ones that describe specific errors in how the agency did the NEPA analysis and how it wrote its draft EIS. NEPA says they must respond to each of those substantive comments. They can ignore the non-substantive ones. This smaller pile of substantive comments is the important pile and NMOHVA’s comments will be in it. When a comment identifies an important mistake, the forest is supposed to make corrections in the draft DEIS. The corrected document is re-issued to the public and called the Final EIS. It is released along with the Record of Decision (ROD).

What happens next? After each Final EIS and ROD is released, the public has 45 days to read them and file an appeal. Only the organizations and individuals who made comments during the official comment period are allowed to appeal (this is called ‘standing’ to appeal). NMOHVA and many of NMOHVA’s individual members established standing to appeal the decisions of the Gila and the Santa Fe. Why would we appeal? We will read the Final EIS and ROD to see if the forest made any corrections and if they made real responses to our comments. The Final EIS will include responses to each of our substantive comments. If the forest has refused to make any changes or corrections, we will appeal. If the responses to our comments are irrelevant to the issues, or evasive, or ignore the major errors we identified, we will appeal.

We are not talking about an appeal related to a lawsuit. It’s the same word, but it has a very different meaning. This is the ‘administrative appeal’ which is part of the NEPA process. This appeal is done within the Forest Service, not in a court of law. The appeal itself is a formal document explaining why we think the Final EIS analysis is wrong, why the decision process was flawed, and why we think the forest did not provide adequate responses to our comments.

The Regional Forester’s office (for New Mexico, this is Region 3) makes the decision on the appeal. Region 3 has 45 days to reject or affirm the appeal. Affirming the appeal means Region 3 agrees with us; the Forest has made major mistakes that must be fixed. Region 3 can tell the Forest to re-do the part of the Final EIS that is faulty. If the mistakes are really big and affect the whole Final EIS, they can even make the Forest to do the whole EIS over. Rejecting our appeal means the Regional Forester rejects our arguments and sides with ROD, supporting the decision.

We must go ALL the way through this process before a lawsuit can be filed. The courts will not accept legal challenges until AFTER the NEPA process is finished. NEPA is finished when there is a decision on the appeal. Based on past experiences here and in other states in the West, we fully expect to be filing appeals on both forests. And we believe it is likely we will have to file lawsuits. That’s why we established NMOHVA’s Access Defense Fund several years ago. We knew the day would eventually come when we have to sue the Forest Service. Go to www.nmohva.org and you can contribute to the Access Defense Fund. If a lawsuit is necessary, we will be asking for your financial support. Legal challenges are expensive (they are the last resort), but lawsuits might be necessary to preserve our access to our public lands in the National Forests.

Yes, this is a long, hard slog of a process. Yes, it is easy to forget and take your eyes off the ball. NMOHVA has kept their eyes on the ball for the past SIX YEARS, since the Travel Management Rule was announced in 2005. We WILL continue to follow the process to the very end. Our precious roads and trails are not lost or preserved until the entire process is complete.