Page updated: 07/06/2001 08:08 PM

In the first article addressing land use issues of concern to off highway recreationists I described, in general terms, the origins of land use designations and how certain lands are withdrawn from the common pool of public land—with the usual attendant subsequent limitations on use and access.  In that article I mentioned in passing the National Environmental Policy Act or NEPA.

NEPA is probably the most important law in the world of environmental litigation.  This is true in matters pertaining to public lands as well as more generally.  The following hopes to be a brief overview of NEPA, how it works, and how four wheelers can use its dictates to their advantage.

NEPA: Background:

NEPA is the oldest purely environmental law.  Its creation, in 1969, foreshadowed the flurry of environmental laws established in the early 1970's.  The Clean Air Act, the Endangered Species Act, and the Clean Water Act, three environmental laws that have significantly shaped the world we live in today, were adopted in the early '70s on the heels of NEPA.  These laws heralded a new ecological awareness on the part of the American public.

Unlike other environmental laws adopted at the same time, NEPA is purely procedural.  It does not require a specific outcome.  It is important to keep this in mind as you become familiar with the requirements of the law—as long as the party subject to NEPA satisfies all procedural points they may still go ahead with their original plan without modification.

NEPA: The Basic Structure:

NEPA requires a Federal actor, typically a Federal Agency, to consider the environmental impact of any major action it proposes before it actually implements the project or proposal.  There are also state laws, often called "little NEPAs" which apply to state actors but here we are concerned with the federal Act.  State laws tend to be very similar, but not identical, to NEPA and they are a little bit different from one state to the next.  (California's law is called the California Environmental Quality Act or CEQA.)

Any Federal agency or office that proposes to take a "major" action which "may" have "significant" effects on the environment must consider these effects before taking the action.  That is basically what the law, as written by Congress, says.  Like the pervasive but ephemeral notion of "reasonableness" that is so common throughout our law generally, the words major and significant are pretty vague.   What is reasonable?  What is a major action?  What is significant?  Good questions.  If you go and read the text of the Act itself you will find little guidance.

There is, however, a large body of case law that has developed around NEPA since its inception.  Any one of the terms and its meaning has been litigated and a judge's opinion as to what it means is available.  There have been literally hundreds, if not thousands, of NEPA court cases.  As our common law system relies on precedents, reviewing these cases tells us what the words mean.

So, case law tells us an actor is any federal agency very broadly defined.  If the Feds have anything to do with it NEPA applies.  A major action is also very broadly defined.  Small Land Use Plan changes, lining a culvert in a national park somewhere with cement, changing the permit requirements for climbers planning an ascent of Mt. Rainier—any one of these might qualify as a "major action".  Obviously building a dam or creating a national park would be a major action. 

Significant impacts are broadly defined as well.  As a plaintiff challenging a federal action all I need to do is demonstrate that arguably the action will have some environmental effects.  Not a high burden.  I may not win on the merits at trial but any allegation will get me a hearing or into court.

NEPA:  Procedure, the EA and the EIS:

The heart of NEPA is the Environmental Impact Statement.  If an action has any significant environmental impacts the agency must prepare an EIS.  I will get to the actual process in short order.  Again, if a plaintiff can demonstrate ANY possible environmental impacts, and an EIS has not been completed, the law requires that the court order an EIS be prepared.  This is a very low threshold for the plaintiff.  Knowing this, most agencies will not proceed and wait to be sued but will do the EIS on the front end for just about any significant action.  In contrast to the easy threshold if the agency has not done an EIS, if they have done one the plaintiff's burden is to prove that the EIS is defective somehow and this is very difficult.  So, while an EIS is expensive and time consuming, doing one effectively insulates the agency from most legal challenges.

Scoping: The first step on the road to preparing the EIS is to set up the parameters that the agency will consider in gauging the environmental impacts of its proposed action.  This is referred to as scoping.  What will be the scope of the study?  During the scoping period the agency will send notices to interested parties (important—more on this later) and the public may provide comments.

Environmental Assessment: Once the scoping period is over the agency will prepare an Environmental Assessment, or EA.  The EA is a rudimentary precursor to a full EIS.  Some agencies use forms with check boxes for their EAs.  If no "negative impacts" boxes are checked the agency says there will be no significant impacts and an EIS is not required.  EAs can be just the checklist or more lengthy and comprehensive but the point is to decide if an EIS is necessary.  If it is the agency will have to do one, if it's not the agency will issue a Finding of No Significant Impact (FONSI).

Remember the above standards.  Without an EIS all a plaintiff must do is present some evidence that arguably there will be environmental impacts.   Easy to do.  Therefore issuing a FONSI is dangerous for the agency.  Unless there really are no possible environmental impacts it is opening itself up to a legal challenge. 

In practice when does an agency issue a FONSI?  When it really believes that there will be no significant impacts—generally on very small projects—or when it doesn't think anyone is paying attention.  This is because, unlike a private citizen, the agency doesn't have to pay for its legal defense.  It may decide that it's worth the gamble.  What the heck?  Maybe no one will be watching and even if it is challenged and loses all it will have to do is do the EIS anyway.  This works pretty well as a tactic because there is a very short statute of limitations on challenging an action under NEPA—usually 30 days.  Thus, if the agency files a FONSI, sits on its hands for 30 days whistling Dixie and no one comes out of the woodwork to challenge it, the agency is no longer subject to suit and has avoided opening the expensive and time consuming Pandora's box which is the EIS.

NEPA:  Preparing the EIS, Substantively:

The text of NEPA does not say what the EIS must include.  Case law and agency regulations do.  Most modern EISs will be at least 50 pages in length and it is not uncommon to see an EIS run into the hundreds of pages.  What is covered in the EIS?  Typically there is an Executive Summary in the front that discusses the proposal in broad strokes.  The remainder of the text will largely be data supporting the proposal.  The agency usually supports the proposal and also prepares the EIS so the inevitable conclusion that the project has minimal environmental impacts should always been viewed with skepticism as self-serving for the agency. 

Case law requires the EIS to consider alternatives to the action including the "no action" alternative.  These alternatives may have been voiced by people within the agency, within other agencies, or by the public during the scoping period.  For example, if you sent a letter to the BLM during the scoping period suggesting that one possible solution to a trail closure plan would be to implement only a seasonal closure, maybe during the rainy season to limit ruts in the soft earth, this alternative should be addressed in the EIS. 

The EIS must also consider cumulative impacts.  A favorite tactic used to be for an agency to segment a project so that no particular EIS considered the whole project and ALL of its impacts.  A good example of this would be building a freeway.  If the EIS considered the whole freeway there would clearly be significant environmental impacts but if the agency got its funding to build the freeway one mile at a time no single mile's construction would have significant impacts in and of itself.  If sued the agency would say merely that it was not considering the whole freeway because it didn't have the funds to build the whole thing.  Sure.  The agency is going to build a few miles of a freeway to nowhere?  Cumulative impact analysis must consider all past, present, and "reasonably foreseeable" future related projects. 

Lastly, the EIS must address any concerns raised in comments solicited by the agency prior to preparing the EIS.  There are other considerations but these are the primary ones.

NEPA: Preparing the EIS, Procedurally:

The agency proposes an action.  It embarks on a scoping period and solicits comments.  It prepares an EA.  It issues a FONSI or decides to prepare an EIS.  If it prepares an EIS it may, but is not required to, solicit further public comments during preparation. When the preparation is finished it will release a Draft EIS (DEIS).  From the date that it releases the DEIS there will be a 45 day public comment period.  The public is supposed to read the draft and respond with comments which will be incorporated and addressed in the Final EIS (FEIS).  The FEIS, in practice, looks pretty much the same as the DEIS and will be released after the comment period closes.  The FEIS is followed by a Record of Decision; the final determination which outlines the action as it will occur and certifies that the document (FEIS) is NEPA compliant.  From the issuance of the ROD the 30 day statute of limitations runs.  If you are planning a legal challenge you had better be prepared to bring it within 30 days.

NEPA: Legal Challenge:

If an agency does no environmental review, or issues only a FONSI, charging the agency with failure to apply NEPA is relatively easy.  Challenging a completed EIS is difficult.  This is so for several reasons.  First, the agency is granted "deference".  This means that a judge will not question the agency's scientific or other findings unless they are patently unsupported and unreasonable.  As plaintiff, bringing your own expert witness in is going to be of limited assistance to your case because, if there are two reasonable scientific interpretations on the table, yours and the agency's, you will lose.  Second, there is the high standard to meet in terms of demonstrating that the document is defective.  Unless the agency's position in the EIS rises to the level of "arbitrary and capricious" (pretty bad) a judge will not overturn its EIS.  Finally, and this is really important for the public commenters, no extrinsic evidence will be admitted in the case.  This means that unless you commented on the record during the public comment periods as to something you intend to bring up in a legal proceeding later it will not be admitted and the judge will not hear it.  I don't care if, three days after the BLM denies a permit for your off road race based on EIS findings of adverse impact on desert tortoises in the area, you find the pre-eminent desert tortoise scientist in the world and he is willing to testify that no desert tortoises could possibly live in the area of the race due to some weird climactic condition.  Unless your scientist is on the record during the public comment period as to this matter it's not coming in.

Discovery is the process by which one party seeks evidence in the possession of the other.  There are rules concerning what is discoverable and what is not.  Though they do not often assert it there is such a thing as administrative privilege.  If the agency asserts this privilege certain documents may not be available to the plaintiff.  Generally speaking the agency can assert the privilege with respect to documents not part of the official record.   More usually they will try to baffle you with an avalanche of documents so this is not often a impediment but it is worth mentioning as another potential road block which cuts against the plaintiff.

It is also important to remember that NEPA is procedural only.  If the plaintiff wins they will only have demonstrated that the EIS process was flawed and defective.  Not that the agency's action is a bad idea.  The judge cannot make a determination about the value of the action itself because it is not what the original challenge alleges.  The only question is as to the completeness of the agency's environmental review and compliance with NEPA. The agency will only have to go back and fix the deficiencies in the document and try again—eventually it will, if it is really motivated, go ahead with its action or project.

However, sometimes getting the EIS thrown out is a de facto win.  This is because in practice the cost and time involved in doing a full EIS (in the case where one was not originally prepared) or fixing the problems in a deficient EIS, may be beyond what the agency wants to deal with.  It will just drop the matter though it has every right to go back and fix the EIS and go ahead with the project.  If the project is a new dam the agency will probably go around again.  If it's a small measure to close certain areas to jeep access the agency may decide it doesn't care enough to go through the process again.

Before we leave the area of general legal challenge matters I should mention a couple of points concerning justiciability.  These are very general requirements that must be met to even get into court.  They apply in all legal actions not just NEPA challenges.  First, there must be a "case or controversy".  This means there must be some conflict.  The case must be "ripe" for judicial review which means that the controversy is "live" or timely.  These first two are easily met.   The one place where the rules of justiciability can get sticky in environmental cases is standing.  A plaintiff must have standing to bring a suit.  A competent lawyer for an agency defendant will always move to have the case dismissed because the plaintiff cannot show standing.  What does standing mean?  Well, basically that the plaintiff has a vested interest in the outcome.  Organizational standing, while it works sometimes, may not be enough and I wouldn't risk the court sustaining defendant's motion to dismiss because all I have is an organization as a plaintiff.  I would want to name a "real person" plaintiff with a direct interest in the case.  The Blue Ribbon Coalition, for example, has, as its stated mission, protection of the general interests of the four wheel drive community.  If the BRC chooses to challenge the BLM's closing of an area to vehicular access they could maintain that they have standing because they exist to assert the rights of motorized recreationists.  It might be enough.  But I would want to name a real person who can say that he/she uses the area in question regularly and will be impacted directly by the closure.  That person's standing to bring suit would be much more solid.

One last point concerns the doctrine of "exhaustion of administrative remedies".  This means that you cannot bring a legal challenge until you have attempted to gain relief through available administrative processes.  In the case of NEPA the plaintiff really needs to have been vocal during the entire procedure to avoid having the case dismissed because they spoke up too late.

NEPA:  Bringing a Challenge to a Hypothetical Trail Closure:

If you are still with me at this point, reader, you have been very patient.  But what does this all mean to the average four wheeler?  Lets take a hypothetical trail closure and see how this might work in practice.  Note that the process can be used to effect the eventual outcome without ever having to file suit.  Legal proceedings should always be the avenue of last resort because they are costly and, as mentioned above (deference to agency findings, evidentiary limitations), in a proceeding against a federal agency the deck is stacked against the private plaintiff.

You regularly go on jeeping and camping trips in Sherwood National Forest, an area managed by the Forest Service.  The Forest is only about 45 minutes drive from your house and it has some challenging trails as well as energetic browns in the backcountry lakes.  A good place for a weekend getaway.   The first thing you should do is contact the Forest Service and get on their mailing list.  Tell them that you are a frequent visitor to Sherwood and you would like to be kept apprised of Forest news.  You will receive press releases and any public documents concerning management plans. 

One of the mailings you get informs you that the FS is proposing to amend its management plan for Sherwood to close the route to Crystal Clear Lake, one of your favorite trails.  Knowing that it has to comply with NEPA the FS release notifies all interested parties (you are one because you are on the mailing list) that it intends to prepare an EA concerning the Plan changes.  The notice will tell you when the scoping period is to start, it will give you an overview of the Plan changes proposed, and it will identify the start and stop dates for the scoping public comment period.  You read the Plan changes carefully, look at the grainy map they sent you, and see that not only will the route to Crystal Clear Lake be closed but also the route to Whattaview Peak.  What to do? 

Speak up!  There will be a contact name, the Agency lead person, where you will be requested to send comments.  Carefully and courteously craft your comments to the effect that you use the area regularly, that you take the family jeeping and camping up there several times each year, and that you would be unable to visit these areas if the jeep routes were closed.  Typically there will be a reason why they are closing the area, let's say in this case it is to protect the endangered red headed warbler.  Not being an expert on warblers there isn't much you can say about the viability of the red headed warbler population in Sherwood but be sure to make it clear that you are a tax-paying citizen and you use the area frequently.  Mention also that you are concerned and looking forward to reading ensuing environmental documents.

Obviously the more people who comment in opposition to closing the trails the better the chance they will remain open.  Spread the word, solicit comments (sent to the FS directly) from your friends and fellow jeepers.  It's not under oath court testimony; it won't come back to haunt them, just write some quick letters.  In pure theory this isn't a popularity contest but if the proposal results in a large number of responses in opposition it will definitely come to the attention of the FS and they will be less likely to close the area.

The EA will be released and you will be sent a copy of that.  Sometimes the agency will make you pay the "cost of reproduction" of the environmental review documents.  This is legal if the amount is reasonably related to the cost of printing—usually no more than $20.  It will not be $1000.  If it is this is unreasonable and illegal.  My experience has been that the Feds are actually pretty cooperative in this area so I only mention this potential problem in passing.  If they won't give you the document tell them that you will seek it and all other administrative documents surrounding the plan change through a Freedom of Information Act (FOIA, say foy-ah, they like that) request—they'll cough it up.  Recently these documents have begun to be posted on government websites and may be downloaded as PDF files so there is no cost to you.

The EA won't be very long.  Study it and see if it's the same proposal originally discussed.  What is the conclusion?   Most of the time the conclusion will be that the plan change is sound policy and required.  No surprise there.  But did the agency issue a FONSI or are they doing an EIS?

Typically the number of comments received from the public on any NEPA documents is very low.  Don't think of this in grand petition terms.  For a relatively small action such as this hypothetical trail closure it would be surprising if the FS got 25 comment letters from the public.  Even just a few thoughtful and educated responses will be noted.  Therefore, if the agency issues a FONSI you should send another letter to the agency lead stating that you believe that the issuance of a FONSI is in error and that it is your opinion that the preparation of an EIS is required.  If, after having done this, the Agency intends to go forward with the closure and an EIS is not prepared then you are left with having to challenge the legality of not preparing an EIS.  At that point it becomes a legal matter. 

You were hoping that your letters might convince the FS to abandon their plan and it did not.  But it often does.  Where the letters wasted effort?  In this case they might have been. But certainly, if the FS proposes to close the routes and no one says anything at all then the closure is a foregone conclusion.  As well, it wasn't really that much effort on your part.  You still have options but you are going to need a lawyer to take it any further.

If an EIS is being prepared make sure to get a copy of the Draft and read it carefully.  It may be long and detailed with alot of science that you don't understand.  Don't worry so much about that.  Do look for conclusions that strike you as odd or not right.  Often the EIS will make bold statements that are conclusionary without findings that support the conclusion.  In our hypo you won't be able to take issue with findings concerning the red headed warbler but there might be something in the document that is patently false or mistaken.  Make a note of such things in your comment letter.  Reiterate the same basic points that were in your scoping response.  Mention any possible alternatives that the FS might take that would achieve a more equitable balance between conservation and access.  And that is about all you can do.  Remember that part of what you are doing is getting your words on record in case you need to use them later in a legal proceeding.

After reading the Draft and commenting (within the allotted 45 days) there isn't anything else you can do until the Final and the Record of Decision come out.  You are hoping that the Draft elicited many letters in opposition to the project and that the FS will drop it or go with a less restrictive (on access) alternative.  Occasionally the Final and ROD are never released.  But, if it is, a legal challenge is the only option left.  If you decide to bring a legal challenge remember the very short statute of limitations!

Conclusion:

For the moment I will leave the potential legal strategies out of this discussion.  Most are beyond the resources available to the average jeeper.   As well, if challenging an EIS, it must be recognized that a win is a long shot.  But, after seeing how this process works, it should be apparent that standing up and speaking out against proposed closures will affect the outcome in many cases.  As Bud Boren, a sage staffer here at JA points out, the squeaky wheel gets the oil (or something like that).  Be a squeaky wheel.  Let the management agency know that if they limit your right of access you will not go quietly.  That is what the public comment requirements written into the law are designed to encourage.  If no one even sends a letter in concerning the proposal it WILL happen.

Also, sometimes being vocal about your opposition will, if the planned action is still being worked out, get you a seat at the negotiation table.  Maybe a compromise can be worked out.  Obviously this is more likely to be the case if you are a member of an organized group.  Remember that many times closures are proposed and take place and almost nobody from the jeeping community responds—let alone has the opportunity to constructively contribute to the decision-making process and contest some of the more outrageous claims that environmental groups often make.

If nothing goes your way and it ends up coming down to litigation then you will have to think long and hard about the costs and whether it is worth it to pursue the matter.  Litigation is expensive.  But, part of the lawyer's obligation in practice is to engage in a certain amount of pro bono (for free) work—maybe you have a local attorney who might want to help you out. It's worth asking.

Finally, it is constructive to have a public dialogue about closures and other limits on access.  Just be aware that it is unlikely that your local agency planners and managers read the 4x4 bulletin boards.  Use some of that energy to write one simple letter to voice your opposition to the closure.

See you on the trails!