Beach Access, Legal
November 07 2012

Flyspecking Preservation Efforts: a case on off-road recreational access v. preservation

by Angela Howe

Written by Surfrider Legal Intern Clint Wilson

Surfrider Foundation has long worked to secure low-impact beach access for all people.   Our work in realizing this goal has not gone without recognizing the omnipresent balance between beach access and the ecological integrity of our beaches.   This balance is often implicated in beach driving.

As a grassroots organization, dedicated to the preservation and enjoyment of our coastal resources, we support restrictions necessary to protect sensitive beach ecosystems.   These restrictions are all the more necessary when heavy recreational use should be restricted to preserve a protected species.   This is the issue in the case below, in which the Southern Four Wheel Drive Association recently challenged the Forest Service’s  ruling to restrict off-road recreation in favor of protecting wild trout in the Nantahala National Forest.

Under the Public Trust Doctrine,  the government holds certain lands and resources in trust for the public.  It is important to keep in mind that “resources” in the public trust  includes protected species, and as such, we should not "flyspeck" the well-grounded efforts of an agency to protect such species in favor of our own recreational use.  With that said, the case below illustrates an organization’s efforts to “flyspeck” the Forest Service’s efforts to protect a fragile ecosystem in favor of its own recreational use.

The Southern Four Wheel Drive Ass'n v. U.S. Forest Service case decided in the Western District of North Carolina , involves the Forest Service’s decision to prohibit and restrict off-road recreational access to the Upper Tellico Off–Highway Vehicle (OHV) System  of the Nantahala National Forest located in Cherokee County, North Carolina.  The System is located on a watershed of the Tellico River.    The watershed, officially labeled as “a severe erosion hazard,” drains into a section of the Tellico River  classified as “wild trout waters.”  The System’s trails appeal to off-roading enthusiasts, but this in turn increases the erosion.   As a result, there is an increase concentration of sediment in nearby streams causing the trout densities within the Upper Tellico to be “measurably lower than streams of similar size across the Forest.”  

The Plaintiff in this case, Southern Four Wheel Drive Association ("SFWDA"),  “is a nonprofit organization formed in 1987 and dedicated to promoting four-wheel drive recreation, responsible land usage, conservation and education.”   In September 2004, the Forest Service began to monitor the impact that off-roading had on the water quality of nearby streams.   In 2005, a Forest Service assessment found that nearby streams had a higher concentration of suspended sediment caused in part by the off-road use of the System’s trails.   Moreover, in 2007, the North Carolina Wildlife Resources Commission  found that the sediment had a detrimental impact on wild trout reproduction.  Later that year, after conducting a survey of the trails and eliciting public comment from stakeholders, the Forest Service temporarily closed the System’s trails “to correct ongoing impacts to area waters and aquatic resources caused by sediment from the [ ] trail system.” In 2009, the Forest Service  issued a 209-page predecisional Environmental Assessment ("EA"), and a final 250-page EA, finding that due to the heavy off-road use, and other factors, North Carolina standards for turbidity in the Tellico River  were being violated causing the reproduction of trout to be adversely impacted.   After an extensive public comment period, the Forest Service closed the System’s trails.

SFWDA challenged the Forest Service’s  decision, asserting that the Forest Service had: (1) predetermined the outcome; (2) violated NEPA procedural requirements; and (3) acted arbitrarily and capriciously. First, in claiming that the Forest Service  had predetermined the outcome, SFWDA asserted that the agency’s December 2007 temporary order was in fact a final determination to close the System’s trails.  The court, however, dismissed this claim as moot because the Forrest Service issued its final decision in 2009 after the 2007 temporary order. Second, SFWDA asserted that the Forest Service violated NEPA procedural requirements by (1) improperly relying on insect studies in the agency’s EA, (2) improperly issuing an EA rather than an Environmental Impact Statement (EIS), and (3) improperly amending the Forest Plan.

With respect to SFWDA’s argument that the agency improperly relied on insect studies in its EA, the court held that the claim was “simply unsupported by the record.”   As such, the court held in favor of the Forest Service.   Lastly, the SFWDA’s challenge that the agency’s improperly amended the Forest Plan to remove the System from the list of recreational off-road areas was also futile, with the court ruling in favor of the agency.

SFWDA’s last claim alleged that the Forest Service's closure of the System was “arbitrary and capricious because it was based on a legally erroneous conclusion.”   Predictably, the court held in favor of the Forest Service, finding that the agency’s finding was not arbitrary or capricious but well grounded.

In affirming summary judgment for the Forest Service, the court reasoned that the agency had taken a hard look at the environmental consequences of the proposed action as reflected in its predecisional EA and final EA. The court then stated that if it were “to accept the Plaintiffs' positions, it would amount to ‘flyspecking’ of the Forest Service's environmental analysis, looking for any deficiency, no matter how minor.”

The irony in this case is that SFWDA claims to be dedicated to four-wheel drive recreation and conservation, yet it used many arguments against conservation.  Perhaps the real takeaway from this case is that beach driving for recreational use should be balanced and yield to the preservation of protected species.  In other words, don’t flyspeck!