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Federal court upholds decision to allow hunters to drive off road

Off road car in forest

Off road car in forest

Federal forestry officials did nothing wrong in agreeing to allow hunters to take their vehicles off road to retrieve their kills, a federal appeals court ruled Wednesday.

The 9th Circuit Court of Appeals acknowledged that the rules of the U.S. Department of Agriculture generally prohibit off-road motorized travel. The purpose is to protect critical habitat and prevent harassment of wildlife.

But Judge Milan Smith Jr., writing for the unanimous three-judge panel, said Heather Provencio, as supervisor of the Kaibab National Forest, was within her authority to allow vehicles to go up to a mile off the roads. He said the exemptions were limited in time and scope.

And Smith said the fact that regional officials were skeptical of the plan does not preclude the final decision by the Forest Service from giving the go-ahead.

“The fact that a preliminary determination by a local agency representative is later overruled at a higher level within the agency does not render the decision-making process arbitrary and capricious, as agencies are fully entitled to change their minds as long as the proper procedures were followed,” he wrote.

At one point there had been no regulation of off-road use. Then, several years ago, officials in the Kaibab National Forest enacted various regulations barring off-road use.

The fight is over that decision to create an exception to allow hunters to go up to a mile off certain routes to pick up big game.

Environmental groups who sued, including WildEarth Guardians, the Grand Canyon Wildlands Council, the Wildlands Network and the Sierra Club, created maps they said showed that left 90 percent of the forest unprotected. They specifically cited potential danger to the habitat of Mexican spotted owls and the black-footed ferret, both endangered species.

But Smith noted that the regulations adopted by the Department of Agriculture – the one the Forest Service used to come up with the specific rules here – contain a provision allowing the use of motor vehicles at some “specified distance” of certain forest roads or trails where motor vehicle use is allowed, both for “dispersed camping” and “retrieval of a downed big game animal by an individual who has legally taken that animal.”

And the court rejected arguments by challengers that allowing such activity within a mile violates the requirement that the activity be “limited” and only on “certain” roads.

For example, Smith said, the plan for the North Kaibab Ranger District spells out that vehicles can be used only to retrieve legally hunted elk and bison, permitting only vehicle per harvested animal, and requiring hunters to use “the most direct and least ground-disturbing route in and out of the area.” The judge also noted that such off-road use is permitted only during the appropriate hunting season.

Smith also noted that restrictions in the Williams and Tusayan ranger districts exclude retrieval of bison and require motor vehicle to cross streams and rivers only at designated crossings.

And the judge pointed out all that is better than what had existed before.

“These limitations are a significant departure from the previous policy which did not limit the number of trips, did not limit the type of species which could be retrieved by motor vehicle, did not limit the distance traveled from system roads, and had no restrictions on seasons or weather conditions and no requirement for use of a direct route,” Smith wrote.

The judges also rejected arguments that the Forest Service, which enacted the specific rules for the forest, failed to implement the plans to allow big-game removal “sparingly.” The court noted that word is not even in the rule itself but instead only in the preamble.

Separately, the appellate court rejected arguments that the Forest Service should have prepared full-blown environmental impact statements. The judges said a briefer “environmental assessment” is all that was necessary here.

Finally, the court said the fact that officials in other forests in Arizona, setting their own off-road policies, might follow the lead set in Kaibab is legally irrelevant.

There was no immediate response from an attorney for the plaintiffs.

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