Legal Precedents for Establishing Non-motorized Recreation Areas on Public Lands


The Forest Service's authority to restrict off-road vehicle (ORV) use was reaffirmed in the United States 9th Circuit Court of Appeals in the Northwest Motorcycle Association vs. USDA case, 18 F.3d 1468 (9th Cir.1994), when the court upheld the Forest Service's decision to close a popular ORV trail. The Motorcycle Association claimed that the decision was illegal because it was based upon comments from hikers who claimed to have conflicts with ORV users. The court stated that public comments were an acceptable measure of the level of user conflict and stated, "The court can envision no better way to determine the existence of actual past or future conflict between two user groups than to hear from members of those groups."

Taken in its entirety, the Court stated that Code of Federal Regulation 36CFR295.2(a) commands the Forest Service to restrict ORV use when there is a current problem or a future likelihood that considerable adverse effects would result from ORV use. Given the fact that the words "will" and "likely" were used in section 295.2(a), it cannot be said that the regulation requires evidence of past actual conflict before use restrictions can be imposed." Further, 36CFR295.2(b) 3, states that "areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public landsÉ.."

COLLABORATION, VOLUNTARY MONITORING AND MAPPING — A SHORT TERM APPROACH TO CONFLICT RESOLUTION

Collaboration is the buzzword of the new millennium and efforts between skiers and snowmobile groups to solve user-conflicts at Vail Pass, Rabbit Ear Pass, Buffalo Pass and in the Sawtooth Valley have been hailed by some as the way to solve user conflicts. Participants agree that their collaborative efforts have resulted in better understanding and relationships between skiers and snowmobilers. Voluntary monitoring, better signs and education programs have also helped to reduce conflicts between the two groups. As a long-term strategy for solving user conflicts, however, this approach is not realistic. One participant stated that you could expect active volunteerism for three or four years and only after that on a limited basis. In some cases, only local participants honor the agreements. Recreationists from outside the area don't know about and may not respect the voluntary agreements.

In many areas in snow country, collaboration and volunteer monitoring as a solution to resolve conflicts is also not realistic. Because of the mobility of both user groups, it will not work for snow play areas and ski terrain located away from where the majority of user groups live. It is time consuming and requires members of the ski and snowmobile communities to spend hundreds of volunteer hours every winter to post signs, educate and patrol joint use areas. This level of commitment is difficult to sustain in mountain towns and would be impossible for remote public lands.

OFF-ROAD VEHICLE STATE FUNDS CAN FUEL CONFLICTS

The development of ORV parking lots, warming huts, groomed snowmobile trails at trailheads used by skiers is a recipe for conflict. A common sense approach to winter recreation management would be to establish these facilities away from popular Nordic, backcountry ski and snowshoe areas. More environmental analysis needs to be done on the facilities and grooming paid for from these funds.

STUDIES INDICATE THAT USER GROUPS WANT NON-MOTORIZED RECREATION

The Forest Service is required to consider the recreational preferences of all user groups and the settings needed to provide a quality recreation opportunity. Several studies confirm that non-motorized users of public lands want separate use areas.

In 1999, the Colorado State Parks Trails Program conducted a statewide poll that showed the public believes motorized and non-motorized activities on our public lands are incompatible.

In a study done by the California Department of Parks and Recreation titled "Public Opinion and Attitudes on Outdoor Recreation in California 1997," Californians identified nine outdoor recreational activities (walking, trail hiking, camping in developed sites, camping in primitive sites, general nature study, use of open grass areas, picnicking in developed sites, visiting museums and zoos) as top priorities for public funding. Not a single priority was a motorized activity; in fact, the report stated that Californians tend to want more areas where motorized vehicles are not allowed and fewer areas for off-road vehicles.

In a 1995 survey of visitors to Yellowstone and Grand Teton National Parks, noise, pollution and the number of snowmobiles were frequently cited as what they least liked about their experience. (University of Idaho Cooperative Park Studies Unit, Project Reports 74&75)

In 1994, the Montana Trail Users study found that non-motorized recreationists (hikers, backpackers, horseback riders, mountain bikers) rated motorized trail use high on the incompatibility scale. However, the majority of off-road motorcyclists, ATV riders and snowmobilers were less likely to rate non-motorized activities as incompatible. (McCool and Harris, 1994)

Until there are more non-motorized opportunities for backcountry skiers, snowshoers and snowboarders, the Forest Service will not be providing a quality recreation experience for this group of winter recreationists.

PHYSICAL CHARACTERISTICS THAT MAKE FOREST LANDS SUITABLE FOR NORDIC AND BACKCOUNTRY SKIING, SNOWBOARDING AND SNOWSHOEING

Forest Planning Regulations (36 CFR 219.21) require planners to consider the physical characteristics that make land suitable for recreation opportunities. It has been suggested that skiers should use Wilderness if they want peace and quiet. Wilderness in most cases isn't accessible in the winter because most Wilderness areas are located too far from roads. Skiers have much more limited mobility than hikers in the summer so road access to good ski terrain is critical. Creating new roads on the Forest is not the answer to accessing Wilderness Areas. Instead quality, accessible terrain needs to be provided for all recreationists.

Accessibility and quality of terrain are important for motorized recreation groups as well as non-motorized groups. Winter recreation planners need to be aware that non-motorized users will leave the desirable areas when heavy motorized use starts to develop. Unless this is taken into consideration and non-motorized zones for skiers are established, most non-motorized groups will be forced onto less desirable terrain. Winter Wildlands Alliance strongly recommends that the Forest Service address the following issues during Forest Service planning:

CONCLUSION

Winter Wildlands Alliance contends that there is sufficient evidence demonstrating that snowmobiles are having a negative impact on the experience of Nordic and backcountry skiers, snowshoers and snowboarders on public lands. To meet the mandates of Executive Orders, non-motorized zones should be established for popular ski trails and backcountry terrain. Winter Wildlands Alliance believes the conflict between skiers and snowmobile users on National Forests will escalate as more and more winter recreationists compete for public lands. We contend that the Forest Service should use its preemptive authority to eliminate the conflict, preserve a quality recreation experience for and safety of the majority of residents, and should not wait until there are appeals or lawsuits or for someone to get hurt before action is taken.