Many people are voicing complaints about the pending loss of their favorite trail or restrictions on off-road recreation and are threatening to file a lawsuit. Sounds simple. But, is it that simple?
Keep in mind, to file a lawsuit, you must have “standing” and prove that you are “harmed” by the decision. So, just what is “standing” and what is “harm”?
You, the recreationist, have an opportunity to participate in the discussions and make our opinions known to the planning team about routes (roads and trails) that need to be considered for developing the alternatives to the Proposed Action. Participation establishes “standing”.
The first step in the NEPA process is “Scoping”. This is the time for the public to submit their comments. These comments will be used to develop the alternatives. One of the alternatives will be the final preferred action in the Draft Environmental Impact Statement. These comments form the basis of the “administrative record”.
Just commenting during the “scoping” period is not enough. You will have two additional opportunities to provide comments. However, after the scoping period, new information is difficult to enter into the administrative record.
For example, your favorite trail is known as “Broken Winch Trail”. You have been using it for years and the proposed action does not recognize it as a trail to be included in the designated route system. During the scoping period, the agency is asking for comments on a proposed action. Now is the time for you to tell the agency about “Broken Winch Trail” and how it is an important recreation opportunity as it leads to your summer fishing hole, your fall hunting camp, and a provides a technical trail challenge for your recreation pleasure. That is the type of information the agency is soliciting.
Identify the trail and why it is important and submit those comments to the planning team. The agency planning team will review your comments along with others submitted. From these comments, they will develop a Draft EIS complete with alternatives and a preferred alternative. And, for each alternative, consequences of that action will be analyzed.
You, the recreationist, have an opportunity to continue participating in the discussions and make our opinions known. During your review of the Draft EIS, you find “Broken Winch Trail” has not been identified as part of the final proposed action. Now is the time for you to refer to your original comments submitted during scoping and submit them again, stressing how very important that trail is to you. You can provide additional information to support your case.
Again, the agency will review all comments received and adjust their preferred alternative. This time, the agency will send out a Final EIS for public comment. During you review of the Final EIS, you find “Broken Winch Trail” has not been identified as part of the final action. Now is the time for you to refer to your original comments submitted during scoping and your comments submitted to the Draft EIS and let the agency know you still consider “Broken Winch Trail” as an important recreation opportunity. You can provide additional information to support your case.
Again, the agency will review all comments received and adjust their final preferred alternative and issue a Record of Decision. During your review of the Record of Decision, you find that “Broken Winch Trail” is still not included.
Now, you have “standing” -- you have participated in the process -- and you can show “harm” -- your recreation opportunity is not being addressed. You can appeal the decision and get ready to file that lawsuit.
You have “standing” because you participated in all parts of the discussion. You have identified something of importance to you and provided documentation as to why it is important.
The final decision does not include what is important to you and you are now “harmed” because “Broken Winch Trail” is being closed and you will be prohibited from using it.
You have participated in the discussions. You have provided documentation. The administrative decision is not in your favor. Perhaps the judge will review the facts and rule in your favor........