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UFWDA Community Forum  |  Access (Land Use, RTF, Advocacy, etc)  |  General Land Advocacy  |  Topic: Colorado Illegal Rd Closure Update « previous next »
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Author Topic: Colorado Illegal Rd Closure Update  (Read 4727 times)
Dan Wagman
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« Reply #15 on: August 13, 2009, 05:59:50 pm »

OK guys, next Friday, Aug 21 at 2pm, wheel over to Congressman Lamborn's office and let him know how serious you, we all are, about these illegal road closures.

1271 Kelly Johnson Blvd. Suite 110

See you there!
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Dan Wagman
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« Reply #16 on: August 19, 2009, 09:39:01 am »

OK guys, this is it.  2 more days till the Lamborn meeting.

Let me be frank; unless we show up in numbers, I really don't see anything happening here. The Congressman has already proven ineffective in the meetings I've already had with him and to date the Governor's office seems less than enthused about holding the Forest Service accountable to the law. But if they see a bunch of citizens involved, then they're going to wonder about election day. I'd much rather work on getting them, the Congressman and Governor, to step up to the plate than commence work on retiring them from office.

So, Friday, 2pm, 1271 Kelly Johnson Blvd. Suite 110, Colorado Springs, CO.

Be there!
« Last Edit: August 19, 2009, 11:26:02 am by Dan Wagman » Logged
Dan Wagman
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« Reply #17 on: August 20, 2009, 10:34:29 am »

Everybody, please review what I just received from the Governorís office, to include my reply. I believe that it is abundantly obvious that the Governorís response is unsatisfactory. I am urging you in the strongest way possible to write the Governorís staffer (Heidi.VanHuysen@state.co.us) and the Governor directly (http://www.colorado.gov/apps/oit/governor/citizen/assistanceUtility/welcome.jsf) why you feel that their response is unsatisfactory and what you expect from them. I frankly think that considering the preponderance of evidence against the FS (see my reply), the conclusion the Governorís office has reached is an outrage. 
 

From: "Van Huysen, Heidi" <Heidi.VanHuysen@state.co.us>
Date: Wed, 19 Aug 2009 16:21:48 -0600
To: "Dan Wagman"
Subject: RE: Forest Service Update

Dan,
 
The conclusion we reached is that areas which you find to be improper road closures have never been designated public roads and thus the requirements you discussed as being necessary to close a USFS road are not required. Instead, the access points in dispute are provided only through a special use permit that were provided to the Colorado Springs Utility and the USFS has regulated those access points accordingly.  I understand you dispute this point but based on the information we have received, we are in agreement with the action taken by the USFS with regard to regulating these access points.
 
Respectfully,
Heidi Van Huysen
office: 303-866-3311 x8664
 

Dear Heidi,
 
Thank you for getting back to me. I appreciate your time and efforts.

Unfortunately the explanation offered by the Forest Service (FS), and the conclusion you reached, is not supported by fact or law. To reiterate, please recall that the main issue at hand is that the FS has illegally kept the public out of the decision making process as mandated by law. Now kindly consider the following facts and references to the law which highlight these errors.

Regarding FSR 371, the only road to which your e-mail would apply, where you should recall this is not the only issue at hand:

1. The 1984 Land and Resource Management Plan map clearly and unequivocally identifies the road in question as a public access road, as Forest System Road (FSR) 371. (Of note, new Land Management Plan Revisions that may have changed this map have been halted as of June 30, 2009 by the 9th District Court due to, you guessed it, FS NEPA violations.) Moreover, of the 32 Amendments to this map, none of them address this road as being mislabeled or falsely identified. This is an important consideration as the FS has claimed in the past, and perhaps to the Governorís office too, that this map is wrong.

2. All signs on the road, to this date, identify this road as FSR 371.

3. All writings by the FS refer to this road as FSR 371.

4. Now consider that EVEN IF THIS ROAD WAS NOT A FSR, National Environmental Policy Act (NEPA) procedures, which mandate public involvement, still apply. 36 CFR 220.4.a indicates that NEPA processes apply and must be followed if:

A. The Forest Service has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated;
B. The proposed action is subject to Forest Service control and responsibility;
C. The proposed action would cause effects on the natural and physical environment and the relationship of people with that environment;
D. The proposed action is not statutorily exempt from the requirements of this section. [The action of closing FSR 371 is not categorically excluded under FSH 1909.15.31, 36 CFR 220.6 et seq., and 7 CFR part 1.b.3.]

5. In addition, and irrespective of whether FSR 371 is or is not a FSR, in many writings, most recently on July 2, 2008, the FS has claimed the closure of this road is due to the protection of a Forester Sensitive Species. This in and of itself triggers NEPA and therefore public involvement. I refer you to 36 CFR 220.6.b.1

6. In a writing dated September 21, 2001 the FS acknowledges that NEPA procedures need to be followed.

All of the above apply and thus the FSís explanation to the Governor is completely false, without any foundation in law, and hence your conclusion flawed. Moreover, the issue of a Special Use Permit is irrelevant as the area of said permit is under FS control and as per 36 CFR 213.3 does not preclude the application of all other applicable laws such as NEPA.  In addition to which, the permit clearly and unequivocally states that the permit holder may NOT keep the public from accessing the permit area.

Please consider that what you mention in your note does not address the issue of FSR 322A and the Order that expired on April 29, 2009 governing the South Platte Ranger District of the Pike National Forest. As you hopefully recall from our phone conversation, you were to ascertain by what legal authority the FS keeps this beautiful area from the public. What did you learn in that regard? If the FS simply extended this Order, they extended an Order that was illegally obtained (the law requires a minimum of 30-day public notice, Coloradans received 2 wks; appeal rights were denied based on a nonexistent law). In addition, this Order calls with specificity for ďtemporary closure of roads and trails,Ē that by law are not to exceed one year (36 CFR 220.6.d.8; 36 CFR 220.6.e.8.), yet this road/area has been closed to the public for over four years.

Beyond addressing the above, the Governor ought to consider asking the FS to indicate, with specificity, based on what exemption under the law, applying NEPA (36 CFR 220 et seq.) does not apply to the closure of FSR 371, under what legal authority they extended the illegally obtained Order governing the temporary closure of roads in the South Platte Ranger District, and under what legal authority they have kept FSR 322A closed for over four years (an Action that would require the application of NEPA procedures).

Iím afraid that this issue has not been properly resolved and we collectively ask that the Governorís office hold the FS accountable to the law and has the Agency reopen these roads until such time that it has attained the legal authority to close it.

We are looking forward to hearing back from the Governor. This issue presents him with an absolutely wonderful opportunity to work at the grassroots level and right what is clearly wrong on behalf of Coloradoís citizens. With that said, what can we expect the Governorís next steps to be and what sort of time-frame may we anticipate the execution of these steps?

Dan

P.S. Please note that our communications are being considered public record and are being shared with thousands of interested and affected citizens and all local media outlets via e-mail and Forums.

--
Dan Wagman, PhD, CSCS

Patriotism is supporting your country all of the time,
and your government when it deserves it.

Mark Twain
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Dan Wagman
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« Reply #18 on: August 22, 2009, 09:00:56 am »

Since UFWDA and its Colorado "affiliate" has shown anything but leadership and support in this issue, this will be the last posting in this regard.

----

I am very grateful for those who showed up for the meeting with Lamborn. Indeed, all of you should be grateful because these guys and gals stepped up to the plate. In reality, this is NOT about 4-wheeling and the FS closing roads, itís about an agency in our government contravening the laws of the land. And that incenses me, as I believe it should every American, whether he accesses the national forest or not. Of the nearly 2,000 individuals that have expressed an interest in this matter, sadly, only about 10 showed up and gave their country 60 minutes to fight for that which is right. You know what they say; you get the government you deserve.

On that note, all local media had been informed about this meeting, too, and here the turnout was even worse Ė 0. I suppose to them having a federal agency breaking the law doesnít rank very high. Iím wondering if they understand what journalism means and what responsibility comes in a nation that believes in freedom of the press.

The way the thing went is that I presented Lamborn with the facts. Basically, I read through this, which was also sent to Governor Ritter:

http://www.bodyintellect.com/forest_service/worksheet_lamborn_ritter.pdf

You can see that itís very matter of fact; this is what the FS claims, this is what the law states, this is what the FS needs to explain. Plain and simple. And where you see FS Requirement, the way I put it to Lamborn is to ask him, if HE, for US, would step up and get the FS to address each point with specificity. He agreed to do so via a letter and personal call.

After I was done with my presentation the meeting went to Lamborn and the other citizens. In short, Lamborn explained that thereís only so much he can do. He gave an example of how the District of Columbia is seeking to violate the Constitution by gaining representation in Congress (only states can have representation; DC isnít a state). Then he illustrated to everyone what heís already done for us in this particular matter. He went through his folder and told everybody the dates of the letters that he wrote to the FS and the hearing that he asked for from the Committee on Natural Resources (a committee he sits on). It came across to me as if he wanted to make sure that people knew that he was doing something. Sadly, he couldnít attach any form of resolution to his efforts. THAT, to me, is what itís about. TRYING to get a touchdown, but not making it, doesnít score any points.

Then several of the other attendees chimed in and raised some good points regarding their views on the topic and illustrated to Lamborn why they believed this to be an important issue. Heís a likeable guy, he was attentive, took notes, etc., but at the same time I got the feeling that he also set us up for not expecting too much from his end Ė that thereís only so much he can do. He did state that the next step for us might have to be litigation. I canít help but wonder that if he canít bring positive resolution to something so cut and dry, whatís his purpose other than pushing a Yea/Nea button in Congress.

Next stop Ė RitterÖ
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Dan Wagman
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« Reply #19 on: October 08, 2009, 05:44:02 pm »

UPDATE

OK, thereís something pretty humorous here, but letís get to the serious part first.

I havenít been in contact because unfortunately there hasnít been much to share with you. In other words, I havenít heard anything from Congressman Lamborn nor the Governorís office. Iím giving Lamborn more time because history shows that he does follow through with what he promises, in this case a letter requesting more detail from the FS. But 6 wks since our meeting with him have passed...

Regarding Ritter, however, as you hopefully recall, this matter was passed on to the Dept. of Natural Resources. The point of contact, Heidi, moved on to a different job so Iíve been trying to get a hold of Mike King, whoís actually the ďsecond in commandĒ over there. Heís outright ignored all of my calls and e-mails. Today I got a hold of him on his cell. He was dismissive, bordering on rude, and could not tell me anything about anything - literally. He suggested I talk to the Governorís Ombudsmenís office instead. What a jerk. But heís got a nice smile (http://dnr.state.co.us/Leadership/Deputy+Director/Deputy+Director.htm). Two calls to his boss, DNR Executive Dir. Harris Sherman have yielded no return calls (http://dnr.state.co.us/Leadership/Executive+Director/). I called again today and left a message...

I called the Ombudsmenís office and they provided me with one of Ritterís attorneyís contact info. Placed the call and left a message today. Also, today, I finally broke down and contacted several CO-based attorneys. Meetings next week...

Now hereís something pretty funny. I submitted a FOIA and the FS reply was ďno records.Ē I appealed that in DC and got a letter back from the Deputy Director of the FS. In his writing he confirmed that NEPA needs to be followed in closing this road. But he claims that itís not a Forest Service Road and includes a map (this is FSR371, Emerald Valley). And guess what, the map identifies this road as FSR 371. How is it that people with such lack of attention to detail can hold down a job?Huh

Will have more as it becomes available... 
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Pat Brower
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« Reply #20 on: October 25, 2009, 11:42:24 pm »

Sounds like you're taking the time needed to tie down any and all loose ends.
It might take a while, but eventually they won't have any room left to wiggle and will have to face the issue.

Great work Dan.
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Dan Wagman
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« Reply #21 on: October 26, 2009, 05:03:50 pm »

Hello All,

The main purpose for all of us to meet with Congressman Lamborn was two-fold: 1. To illustrate how many citizens are concerned about illegal FS road closures, 2. To provide him with a worksheet to pass on to the FS in an attempt to get specific answers to the claims the FS has made and to have the FS provide specific references to the law that might allow for their actions, thereby rendering them not illegal.

Last week I received an answer from the FS regarding Lambornís writing. In a nutshell, the FS evaded answering the points with specificity and actually highlighted yet another violation of federal law. You see, they claim now, among other things, that theyíre using the 2009 Motor Vehicle Use Map (MVUM) as their guide. Federal law, however, mandates Public Involvement in this process, which they did not observe. When does it ever end? A Freedom of Information Act request went out today requesting all documentation regarding the MVUM.

You may find the Worksheet that Lamborn requested the FS to address here:

http://www.bodyintellect.com/forest_service/worksheet_lamborn_ritter.pdf

You may find the FSís answer at the following link. Please note that I added comments to most paragraphs, which on the surface actually sound good; simply scroll your cursor over the note symbol:

http://www.bodyintellect.com/forest_service/worksheet_fs.pdf

Regarding Governor Ritter, I have established contact with two of his policy attorneys. That followed a rejection from his scheduling office in which I requested a citizens meeting  with him. If I donít hear back this week, I shall call them again next week.

Finally, talks with several independent law firms has established that indeed the FS has violated federal law in closing these roads to the public. I am now awaiting feedback on which legal options we might have, how much it might cost, etc.
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Dan Wagman
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« Reply #22 on: October 29, 2009, 05:21:03 pm »

As many of you probably know, the South Rampart Travel Management Plan is underway. It's VERY important for you to get involved in this by submitting your SUBSTANTIVE comments to the Forest Service (FS).

Why is this important and why did I CAP substantive?

It's important because unless you comment you have no appeal rights once they proceed with it. However, once you speak your mind, then you have appeal rights if you don't like what they've done. And best of all, appealing a decision costs you nothing but a stamp. And yes, appeals get reviewed independently and FS decisions have been overturned via this process.

Why did I cap substantive? Because unless you provide a substantive comment the FS will ignore and reject your comment. That said, a statement such as, "I think you should keep this road open because it's beautiful" isn't substantive. Here's how the law defines a substantive comment:

36 CFR 215.2 SUBSTANTIVE COMMENTS ó Comments that are within the scope of the proposed action, are specific to the proposed action, have a direct relationship to the proposed action and include supporting reasons for the Responsible Official to consider.

With that said, please allow me to provide you with what I have sent the FS. I encourage you to review what the FS has done so far and to provide your own comments (http://www.fs.fed.us/r2/psicc/projects). And if you like, use mine as a template of sorts, but do get involved...

EDAW/AECOM
Attn: South Rampart
TMP/EA
240 E. Mountain Ave.
Fort Collins, CO 80524

RE: Substantive Comment as per 36 CFR 215.2 regarding the South Rampart Travel Management Plan; submitted via USPS and e-mail (comment@southrampart.net)

To Whom It May Concern:

There are two errors on the 2008 and 2009 MVUM that must be corrected for the final Travel Management Plan and subsequent MVUM.

FSR 322A
This road appears on the 1984 LRMP map and the 1992 Pike National Forest map but has been omitted from the 2008 and 2009 MVUM. In addition, this road has been closed for five years, despite the fact that its closure must be temporary (defined as up to one year, 36 CFR 220 et seq.) based on the Decision Memo For Temporary Closures of Roads and Trails for Resource Protection and Public Safety. This Order expired 4/29/09 and since this road remains closed to the public, that is in violation of the Order. Moreover, omitting this road from the MVUM has not followed the processes prescribed in 36 CFR 212 et seq. and 36 CFR 220 et seq. Therefore, this road must not only be reopened to the public but must also appear on the MVUM resulting from the South Rampart TMP.
 
FSR 371
This road appears accurately and in its entirety on the 1984 Land Resource Management Plan (LRMP) map, has been omitted from the 1992 Pike National Forest map past the intersection with Emerald Valley Ranch as it heads due west, and appears again on the 2008 and 2009 MVUM, though only for approximately half of its length as it heads due west from the intersection with Emerald Valley Ranch (presumably stopping where it has been gated). As it relates to the TMP and the associated MVUM, since this road is a Forest System road, has been identified as such on the 1984 LRMP, and no amendments to the 1984 LRMP indicate otherwise, this road must be represented in its entirety as indicated on the 1984 LRMP map.
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Dan Wagman
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« Reply #23 on: November 08, 2009, 03:16:59 pm »

So I went wheeling up Rampart Range on Saturday. I think this is pretty funny...

I drive by the gate for 322A (one if the illegally closed roads) and somebody took a blow torch to it and cut the top off, which is still hanging there, but the rest of the gate is gone. So the FS bolted one of those steel highway dividers or what you see on the cliff side of a mountain pass to two uprights instead. Looked like 1" nuts and bolts to me.

Beyond being funny to me, I can't help but think how Jeffersonian it was to do this. The FS is clearly violating the law in keeping this road closed to the citizens; in the words of our 3rd President, "a little rebellion now and then is a good thing." 
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Pat Brower
Great Lakes Four Wheel Drive Association
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« Reply #24 on: November 10, 2009, 10:28:00 pm »

ďWhen the people fear their government, there is tyranny;
When the government fears the people, there is liberty".

Thomas Jefferson
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dds4x4
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« Reply #25 on: November 12, 2009, 12:18:34 am »

Nice Pat.
GREAT to see you on here.
How's life?

Back to topic.
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Dan Wagman
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« Reply #26 on: November 17, 2009, 06:40:05 pm »

Earlier today I got off the phone with Jim Manley, an attorney for Mountain States Legal Foundation. These guys essentially do pro bono work as it relates to public access to public lands. This case is something theyíre interested in, but...

The long and short of it is that since the Forest Service (FS) is now undergoing new Travel Management Plan (TMP) activities, fighting the closures at this point in time seems sort of a mute point. He very strongly recommended that all interested parties comment regarding FSR 371, FSR 322A, and any other areas that are of concern to you. This, he stated, would provide every person or organization who commented with legal standing, meaning that we can appeal whatever decision the FS makes. He also indicated that he wanted me to keep him abreast of the developments because if it ever comes to an appeal, he and his firm would be interested in looking deeper into this matter and perhaps helping us with the appeal(s), litigation, etc.

So, I refer you back a few messages of mine ago where I shared with you the address to which to send/e-mail your comment(s), along with my comments and an explanation of what a substantive comment must entail. You ought to use that as your guide. Now that the FS is developing a new TMP, letís see if we canít get our access back.

A few additional notes. The other attorney I spoke to would as a first step study all of the materials I gathered and would then propose a sit-down with the leadership at the FS to resolve this. He most definitely feels that they donít have any legal support for their actions. This could be effective, but would cost between 1-2K. In the end, Iím afraid that the FS would simply default to the TMP, and perhaps rightfully so, and 1-2K was essentially spend for nothing. So again, comments is the way to go, get involved in the process! Working through the appeals process costs nothing more than a stamp and at the end of that process, thereís still the option to sue the FS.

On the Governorís side of things, weíve been completely ignored. His two policy attorneys that Iíve been put in touch with do not return any of my e-mails or phone calls. Next year is an election year for  him and I will be sure to work on his retirement. If anyone is interested in helping out, let me know.

As far as Congressman Lamborn goes, I asked for another meeting in which several of us will ask him to tell us with specificity what heíll do to get our public roads back. The request went out 10/29 and to date I have not heard back. So earlier today I sent his scheduling person an e-mail. He should be aware that 2010 is an election year for him too.

As always, stay tuned...

 
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Dan Wagman
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« Reply #27 on: January 22, 2010, 04:40:17 pm »

Back in November, Lamborn sent a letter in which he rejected meeting with us. In this meeting he was to explain to his constituency what, exactly, he would do to compel the Forest Service to abide by federal law in closing public roads.

In this letter (http://www.bodyintellect.com/forest_service/lamborn_11-19-09.pdf), among other things, he claims to have been in contact about this issue with three past Forest Service chiefs. I submitted a Freedom of Information Act request to the agency in order to ascertain the truth of that statement; hence the delay in my reply (http://www.bodyintellect.com/forest_service/lamborn_1-2010.pdf). It seems that his statement was a fabrication.

Suffice to say, Lamborn has proven to be an utterly worthless representative in this matter, which raises questions about his effectiveness in other, much more complex issues. I believe his retirement is in order and this work is being organized now. Let me know if you care to become involved.
« Last Edit: January 22, 2010, 05:00:27 pm by Dan Wagman » Logged
Dan Wagman
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« Reply #28 on: January 26, 2010, 06:43:37 pm »

The Colorado Springs Independent is doing a story on this issue and Lamborn's incompetence on Friday. Apparently the writer has only been given limited space at this time, but it's a good start.
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Pat Brower
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« Reply #29 on: January 26, 2010, 07:15:04 pm »

The Colorado Springs Independent is doing a story on this issue and Lamborn's incompetence on Friday. Apparently the writer has only been given limited space at this time, but it's a good start.

Post up the article when you can.
I'd LOVE to read it.

Sounds like the TM Planning schedule was known long before this road was closed.
The NFS knows how long things take to work through the system.
Ours wanted a group out of the forest until they could release their MVUM so they issued them bogus tickets for operating off the designated roadway to tie them up until the maps release.  The appeal was conveniently scheduled for 2 weeks after the maps release.
Don't be fooled, they know what they're doing.
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