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
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.
Heidi Van Huysen
office: 303-866-3311 x8664
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?
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, CSCSPatriotism is supporting your country all of the time,
and your government when it deserves it.