# Hells Canyon National Recreation AreaFederal Lands

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-17521

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** July 19, 1994

## Text

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 292

RIN 0596-AB08

Hells Canyon National Recreation Area--Federal Lands

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule implements Sections 10(b)-(e) of the Hells
Canyon National Recreation Area Act of 1975 (hereafter ``the Act'').
The Act established the Hells Canyon National Recreation Area
(hereafter ``the HCNRA'') and directed the Secretary of Agriculture to
promulgate rules and regulations for federal lands in the HCNRA that
would: insure the full protection and preservation of the historic,
archeological, and paleontological resources; provide for the control
of the use of motorized and mechanical equipment; provide for the
control of the use and number of motorized and non-motorized river
craft; and, establish standards for the management, utilization, and
disposal of natural resources by timber harvesting, mining and grazing
which are compatible with the provisions of the Act. This rule will
ensure that the HCNRA will be administered in such a way as to protect
the values for which it was established.

EFFECTIVE DATe: This rule is effective July 19, 1994.

FOR FURTHER INFORMATION CONTACT: Tom Lennon, Branch Chief, Special
Designations, Recreation, Cultural Resources, and Wilderness Management
Staff, (202) 205-1423 or Ed Cole, Area Ranger, (503) 426-4978.

SUPPLEMENTARY INFORMATION:

Background

Congress established the HCNRA in the Act in order to ``assure that
the natural beauty, and historical and archeological values of the
Hells Canyon area * * * are preserved for this and future generations,
and that the recreational and ecologic values and public enjoyment of
the area are thereby enhanced.'' P.L. 94-199, 89 Stat. 1117 at Sec. 1
(codified at 16 U.S.C. Sec. 460gg). While the overarching goals and
objectives of the Act are to preserve and enhance the natural,
historic, paleontologic, recreation, and other values in the HCNRA,
Congress also expressly recognized as ``valid'' certain timber
harvesting, grazing and rivercraft uses of the area that predated the
establishment of the HCNRA. Id. at Secs. 10, 13 (codified at 16 U.S.C.
Secs. 460gg-7, -10).
The HCNRA consists of 625,193 acres of federal land. Included in
this acreage is the Hells Canyon Wilderness which totals 219,500 acreas
and a portion of the Eagle Cap Wilderness which totals 3,553 acres.
Also included in the total HCNRA acreage are 33,767 acres in the Snake,
Rapid, and Imnaha Wild and Scenic River corridors. The Hells Canyon
Wilderness was designated by Congress in Section 2 of the Act; the
Snake and Rapid Wild and Scenic Rivers were designated in Section 3 of
the Act.
Section 10 of the Act authorized the Secretary to promulgate
regulations addressing several issues that were of concern to Congress
when it established the HCNRA in 1975. Section 10(b) authorized the
promulgation of regulations which would ensure the full protection and
preservation of the historic, archeological, and paleontological
resources in the HCNRA. Section 10(c) authorized the promulgation of
regulations which would provide for the control of the use of motorized
and mechanical equipment for transportation over, or alteration of, the
surface of any Federal land in the HCNRA. Section 10(d) authorized the
promulgation of regulations which would provide for the control of the
use and number of motorized and nonmotorized rivercraft while
recognizing the validity of the use of such craft on the Snake River in
the HCNRA. Section 10(e) authorized the promulgation of regulations
which would establish standards compatible with the provisions of the
Act for the management, utilization, and disposal of natural resources
in the HCNRA through timber harvesting, mining, and grazing.
Parenthetically, it should be noted that Section 10(a) authorized the
Secretary to promulgate regulations which would establish standards for
the use and development of privately owned lands in the HCNRA. This
section was the subject of a separate rulemaking in which a final rule
was adopted on June 13, 1994 (59 Federal Register 30492). Accordingly,
it is not discussed further in this proceeding.
Following enactment of the Act in 1975, the Forest Service
construed the authority in Section 10 to promulgate regulations as
discretionary and that the issues identified therein could be
adequately addressed under existing statutory and regulatory authority.
This interpretation was challenged in a 1988 lawsuit which contended
that the regulatory authority in Section 10 was mandatory, not
discretionary. Oregon Natural Resources Council v. Lyng, slip op. No.
88-680PA (D. Or. 1989) (hereafter ``ONRC v. Lyng''). The district court
in Oregon rejected ONRC's argument that the Secretary had a non-
discretionary duty to issue regulations under Section 10 and dismissed
the case. On appeal, however, the Ninth Circuit reversed the district
court and concluded that the regulations were, in fact, required by
Section 10. According to the Ninth Circuit, Section 10 ``compels the
Secretary to promulgate nonduplicative regulations of the sort
described by subsections 10(a) through (e). ONRC v. Lyng, 882 F.2d
1417, 1421 (9th Cir. 1989).
Within three months of the 9th Circuit's decision in ONRC v. Lyng,
an interim rule establishing standards and guidelines for the federal
lands in the HCNRA had been adopted and public comment solicited. 54 FR
41089 (Oct. 5, 1989). Only two comments were received on the interim
rule. The interim rule has never been published as a final rule.
Recently, another lawsuit was filed against the Forest Service
alleging that the agency had unreasonably delayed promulgation of the
regulations for the HCNRA following the Ninth Circuit's 1989 decision
in ONRC v. Lyng. Hells Canyon Preservation Council v. Richmond, Slip
Op. Cv. No. 92-1432-ST (D. Or.). The district court agreed that the
Forest Service had unreasonably delayed the promulgation of rules for
the HCNRA and established a schedule for their completion. As it
related to regulations for the federal lands in the HCNRA, the court
directed that a proposed rule be published in the Federal Register not
later than January 20, 1994; that the comment period on the proposed
rule close not later than March 21, 1994; and that a final rule be
adopted and published in the Federal Register not later than July 19,
1994.
On January 19, 1994, the Forest Service published a proposed rule
for the National Forest System lands in the HCNRA pursuant to Sections
10(b)-(e) of the Act (59 FR 2782). The proposed rule consisted of the
following sections: purpose and scope, definitions, management
standards and guidelines, protection and preservation of cultural and
paleontological resources, use of motorized and mechanical equipment,
use of motorized and non-motorized rivercraft, timber harvesting
activities, mining activities, and grazing activities. In recognition
of the proportionately greater protection that Congress felt the
wilderness areas should receive over other parts of the HCNRA, the
proposed rule also divided the HCNRA into Wilderness Lands, consisting
of the approximately 223,000 acres of designated wilderness in the
HCNRA and Other Lands, consisting of the remaining approximately
402,000 acres of federal lands in the HCNRA. This latter category
included the approximately 33,000 acres of federal lands in the Snake,
Rapid, and Imnaha Wild and Scenic River corridors.
Against this backdrop, the proposed rule then established standards
for each of the items identified in Sections 10(b) through (e) of the
Act. Some of the standards varied depending on whether the affected
activity or use occurred on or was contemplated in the Wilderness Lands
or the Other Lands. The standards for the grazing activities were,
however, identical for Wilderness Lands and Other Lands. The standards
for motorized and non-motorized rivercraft use did not differentiate
between Wilderness Lands and Other Lands. Rather, this section of the
proposed rule established standards applicable only to river segments
that had been designated as wild and scenic rivers.
Nineteen letters expressing a variety of viewpoints were received
by the expiration of the 60 day comment period on March 21, 1994. These
letters contained the views of, among others, a utility company, a
recreation group, several environmental groups, a federal agency, a
grazing permittee, an association representing the personal watercraft
industry, a commercial river outfitter and numerous concerned citizens.
Two individuals submitted two separate comments on the proposed rule.
The comments contained in these letters have been considered in the
adoption of this final rule. The Department appreciates the time and
energy the reviewers invested in preparing these letters and
articulating their concerns with the proposed rule.
All comments received are available for review in the Office of the
Director, Recreation, Cultural Resources, and Wilderness Management
Staff, Auditors Building, 4th Floor, 201 14th Street, SE., at
Independence Ave., SW., Washington DC, during regular business hours (8
a.m. to 5 p.m.) Monday through Friday.

Analysis of Public Comment

Comments on the proposed rule dealt with general issues like the
terminology, enforceability, and format of the regulation. Comments
also were made concerning the specific standards enumerated in the
proposed rule. A brief statement of the salient issues, responses, and
modifications in the proposed rule follows.

General Comments on Proposed Subpart E of 36 CFR Part 292

1. The Ambiguity of the Standards in the Proposed Rule

A number of reviewers contended that many of the standards set out
in Secs. 292.43 through 292.48 of the proposed rule were vague and
imprecise. As a result, these reviewers noted, the Forest Service could
exercise unfettered discretion in the administration of the HCNRA.
These reviewers suggested that this could result in arbitrary decisions
allowing or, in some cases, disallowing certain activities or uses in
the HCNRA. They concluded that the standards should be clarified to
further circumscribe the agency's decisionmaking authority. If
additional clarification could not be achieved, then some of the
reviewers recommended that the affected standard simply be eliminated.
Response. The Forest Service generally disfavors the use of rigid
and fixed standards in a rule notwithstanding the fact that such
standards might reduce the potential for arbitrary agency action and
might enhance the agency's and the public's ability to predict whether
certain behavior would be in conformance with them. The reason that the
agency resists this practice is twofold. First, the agency believes
that there is a significant risk that rigid and fixed standards in a
rule, though perhaps appropriate at the time of adoption, may quickly
be rendered obsolete or impractical due to changes or developments in
law, science, technology, or societal norms and understandings. Second,
where such standards are deemed desirable, they can typically be
incorporated in the forest plan or a related document, like the
Comprehensive Management Plan for the HCNRA, which are, by their
nature, more fluid and dynamic and thus better suited than a rule to
respond to evolution and change.
As a result, the Forest Service acknowledges that some discretion
exists in most, if not all, of the standards in the proposed rule. It
is the agency's view that an element of discretion is essential if the
HCNRA is to be successfully administered in conformance with the Act.
Nonetheless, the agency has reviewed the standards of the proposed
rule to determine whether additional clarification can be supplied
without compromising the flexibility necessary to administer the HCNRA.
To the extent a standard might appear to be so vague as to be
unenforceable, additional clarification has been supplied in the rule.
Such clarification is explained in the section-by-section comments that
follow. In many circumstances, additional clarification may also be
supplied in the Comprehensive Management Plan (CMP) for the HCNRA which
will apply the general goals and objectives of the Act in conjunction
with the standards of this rule to the specific uses or activities
occurring in or contemplated on the HCNRA.
Finally, it should be noted that the mere existence of discretion
in an agency decisionmaker does not necessarily mean that the
discretion will be abused. This is neither the purpose nor intent of
this rule. In the event that a party believes that the Forest Service
has acted arbitrarily or capriciously or has otherwise abused its
discretion, judicial review is available in accordance with the
Administrative Procedures Act, 5 U.S.C. Secs. 706 et seq.

2. Absence of a Mechanism in the Proposed Rule To Enforce the Standards
Contained Therein

Many reviewers submitted comments that supported the standards in
the proposed rule with the caveat that the Forest Service implement and
enforce them. One reviewer was concerned that the proposed rule failed
to supply any mechanism by which the standards could be enforced.
Presumably, this reviewer believed that the lack of a viable
enforcement mechanism would make the rule a paper tiger and render it
ineffectual as a means of protecting against depredations in the HCNRA
and enhancing the values for which the HCNRA was established.
Response. Notwithstanding the lack of a specific enforcement
mechanism in the proposed rule, the Forest Service does not consider
the standards of Secs. 292.43 through 292.48 to be unenforceable. The
Forest Service has several tools at its disposal which can help to
ensure compliance with the standards of this rule.
As was noted in Sec. 292.40(b) of the proposed rule, this rule for
the HCNRA would supplement, not supplant, existing statutory and
regulatory authorities generally applicable to National Forest System
lands. This authority includes, but is not limited to, Forest Service
regulations governing prohibitions at 36 CFR part 261 et seq. These
regulations provide for fines of up to $5000 and/or imprisonment of up
to six months for violations of the enumerated prohibitions. At a
minimum, prohibitions in Subpart A of 36 CFR part 261 concerning timber
and other forest products (36 CFR 261.6), livestock (36 CFR 261.7),
property (36 CFR 261.9), occupancy and use (36 CFR 261.10), forest
development roads and trails (36 CFR 261.12), use of vehicles off roads
(36 CFR 261.13), and national forest wilderness (36 CFR 261.16) may
directly apply to the HCNRA and the standards set out herein.
Prohibitions may also be established by order of the Chief,
Regional Forester, or Forest Supervisor pursuant to Subpart B of 36 CFR
261.50 et seq. In the event that such an order was issued, prohibitions
concerning special closures (36 CFR 261.53), forest development roads
(36 CFR 261.54), forest development trails (36 CFR 261.55), use of
vehicles off forest development roads (36 CFR 261.56), national forest
wilderness (36 CFR 261.57), and occupancy and use (36 CFR 261.58) may
directly apply to the HCNRA and the standards set out in this rule.
Furthermore, the authorizations for domestic livestock grazing and
rivercraft use will be dependent upon compliance with, among other
things, the applicable standards in this rule. Thus, violations of the
standards set out herein could result in the loss of grazing privileges
or rivercraft use. This, in and of itself, is a valuable enforcement
mechanism.
In addition to all of the above enforcement tools, the Forest
Service may always pursue a civil enforcement action to enjoin an
offending use or activity.
The Forest Service is currently considering whether the prohibition
regulations at 36 CFR part 261 et seq. should be amended to include a
section specifically related to the HCNRA. If this is deemed advisable,
it would be the subject of a separate rulemaking. In the meantime, to
clarify that the Forest Service may utilize the prohibition regulations
to enforce the standards set out in this rule, a new subsection (c) has
been added to Sec. 292.42.

3. Inconsistency of Certain Standards for Other Lands in the HCNRA With
the Management of Wild and Scenic Rivers

One reviewer contended that several standards for Other Lands in
the HCNRA could result in uses of or activities on wild and scenic
river corridor lands that would otherwise be precluded under the Wild
and Scenic Rivers Act, 16 U.S.C. Secs. 1271 et seq. In particular, this
reviewer noted that standards regarding motorized and mechanical
equipment and timber harvesting could be problematic, especially for
wild and scenic river sections classified ``wild.'' This reviewer
recommended that the Other Lands category be further subdivided into
Wild and Scenic River Areas and Recreation Lands. In splitting this
category, standards could be specifically tailored to wild and scenic
river corridor lands to avoid any potential conflict with the Wild and
Scenic Rivers Act.
Response: As noted above and in the proposed rule, when Congress
established the HCNRA it also designated the Hells Canyon Wilderness
and the Snake and Rapid Wild and Scenic Rivers within the HCNRA.
Portions of the Eagle Cap Wilderness and the Imnaha Wild and Scenic
River are also within the HCNRA boundary. While these wilderness areas
and wild and scenic rivers are within the HCNRA boundaries, they are
administered pursuant to the Wilderness Act and Wild and Scenic Rivers
Act, respectively. Therefore, the standards in this rule as applied to
federal lands within a designated wilderness in the HCNRA can not be in
conflict with the Wilderness Act. So too, the standards in this rule as
applied to federal lands in a designated wild and scenic river corridor
in the HCNRA can not run afoul of the Wild and Scenic Rivers Act.
It was the initial opinion of the Forest Service that the standards
for the Wilderness Lands were consistent with the Wilderness Act and
that the standards for the Other Lands in the proposed rule were
consistent with the Wild and Scenic Rivers Act where wild and scenic
river corridor lands were involved and the Act where the remaining
federal lands in the HCNRA were involved. On further reflection,
however, the Forest Service agrees with the reviewer that some
additional adjustments are necessary to ensure that there is no
inconsistency between activities or uses that may be authorized under
this rule and those that may be authorized under the Wild and Scenic
Rivers Act. To that end, the final rule has split out Wild and Scenic
Rivers from the Other Lands category. This new category includes the
approximately 33,000 acres of federal lands in the Snake, Rapid, and
Imnaha Wild and Scenic River corridors. The standards have been revised
accordingly and are more thoroughly discussed in the section by section
comments which follow. The remaining federal lands in the HCNRA are
still referred to as the Other Lands.

4. Opportunities for Public Involvement in Decisionmaking Should Be
Maximized in the HCNRA

Several reviewers encouraged the Forest Service to involve the
public in decisions affecting the National Forest System lands in the
HCNRA.
Response. The Forest Service remains absolutely committed to
involving the public in decisions affecting the HCNRA to the maximum
extent allowable by law. To that end, the Forest Service has solicited
and will continue to solicit the public's input on the broad array of
resource, recreation, and other issues currently affecting the HCNRA.
Recent examples of public involvement include discussions concerning
the administration of rivercraft on the Snake River and preventing the
spread of disease in bighorn sheep. The agency steadfastly believes
that public involvement is the key to the successful administration of
the HCNRA in conformance with the Act.

5. Regulatory Flexibility Act Analysis

One reviewer was critical of the statement in the proposed rule
that this regulation would ``not have a significant economic impact on
a substantial number of small entities.'' This reviewer classified
himself as one of the ``small entities'' on whom the rule would have a
major effect.
Response. Section 3(a) of the Regulatory Flexibility Act (RFA), 5
U.S.C. Secs. 601 et seq., requires the preparation of a regulatory
flexibility analysis whenever an agency is engaged in a notice and
comment rulemaking. However, section 5(a) of the RFA negates this
requirement if the agency certifies that the rule will not have a
``significant economic impact on a substantial number of small
entities.''
In this instance, the Forest Service determined that preparation of
a regulatory flexibility analysis was not required pursuant to Section
5(a) of the RFA since this rule would neither pose a significant
economic impact nor would it affect a substantial number of small
entities. The economic impact of this rule, if any, would be slight
since it only establishes standards and guidelines for the
administration of the HCNRA. Furthermore, the number of small entities
affected by this rule is not substantial. In fact, the number of
affected small entities is relatively small and generally confined to
businesses that operate in and around the HCNRA.

6. Substitution of Authorized Officer for Area Ranger

The final rule uses the term ``authorized officer'' instead of the
term ``Area Ranger'' that was used in the proposed rule to describe the
agency official responsible for implementing the various provisions of
this rule. This change was deemed necessary in order to avoid any
confusion regarding which Forest Service line officer has the delegated
authority to undertake actions that are authorized by this rule. In
some instances, the authorized officer would be the Area Ranger. In
most other cases, the authorized officer would be the Forest
Supervisor. The use of the term ``authorized officer'' preserves the
status quo of Forest Service line officer authority and ensures that
there will be no confusion regarding whether this rule contains an
implied delegation of authority from the Forest Supervisor to the Area
Ranger. A definition of ``authorized officer'' is supplied in the rule.

Specific Comments on Proposed Subpart E of 36 CFR Part 292

The following is a discussion of comments that were received
pertaining to specific sections of the proposed rule and the changes in
the final rule, if any, resulting therefrom. Section 292.40, Purpose
and Scope, is not specifically covered in this analysis since there
were no comments on or changes made to the provisions of this section.
Additionally, Sec. 292.41, Definitions, and Sec. 292.42, Management
Standards and Guidelines are also not specifically covered in this
analysis because the comments on and modifications to the provisions of
these sections are discussed elsewhere in this analysis. Additions,
deletions, or modifications to definitions in Sec. 292.41 are discussed
in the context of the standards in Secs. 292.43 through 292.48 with
appropriate cross references to Sec. 292.41. The only change to
Sec. 292.42 was the inclusion of a new subsection (c) dealing with
enforcement which was discussed in the General Comment analysis above.

1. Section 292.43, Protection and Preservation of Cultural and
Paleontological Resources

The proposed rule established four standards for the administration
of cultural and paleontological resources in the Other Lands of the
HCNRA. These same four standards and two additional ones were
established for the administration of these resources in the Wilderness
Lands of the HCNRA. Briefly, the standards in the proposed rule were:
(1) that protection should be the Forest Service's primary management
objective for cultural resources in the HCNRA; (2) that management
priorities for cultural resources in the HCNRA should be based on the
significance of the resource; (3) that significant cultural resources
should be protected on-site if possible; (4) that the primary
management objective for paleontological resources should be scientific
study; (5) that information regarding cultural resources on Wilderness
Lands should be provided outside Wilderness Lands; and (6) that trails
may not be developed or relocated in Wilderness Lands solely to gain
access to cultural resources.
Comment: Forest Service administration of cultural resources should
balance protection and education. One reviewer felt that the standards
of the proposed rule could be interpreted by the Forest Service as a
way to justify the exclusion of all humans from any cultural resources
in the HCNRA since any human presence would present a risk of harm.
This reviewer contended that such an interpretation would be contrary
to the legislative history of the Act.
Response: The agency does not believe that exclusion of all persons
is a reasonable interpretation of the standards in the proposed rule.
The proposed rule clearly states that protection of cultural resources
in the HCNRA will be the dominant management objective. However, it
also clearly states that education about cultural resources is an
important management objective. Only in the event of a conflict between
protection of and education about a particular cultural resource, would
the education efforts have to yield.
Comment: Disturbance or removal of paleontological resources. One
reviewer noted that the standard which required prior written
authorization before a paleontological resource could be disturbed or
removed for scientific study could be construed as requiring no such
authorization if the resource was disturbed or removed for any other
reason.
Response: The agency agrees with the reviewer's observation. This
standard in the final rule has been modified to clarify that
disturbance or removal of paleontological resources may only occur in
conjunction with scientific studies. And, even in those cases, prior
written authorization must be obtained.
Comment: Traditional and cultural properties should be added to
archeological and historic properties. Two reviewers urged the Forest
Service to expand the type of properties covered by the standards of
this section to include ``traditional and cultural'' properties. These
terms were not defined.
Response: Section 10(b) of the Act specifically authorizes the
Secretary to promulgate regulations ``to insure the full protection and
preservation of the historic, archeological, and paleontological
resources in the recreation area.'' In developing this rule, the Forest
Service has sought to conform as closely as possible with the precise
language of the Act. Therefore, to the extent that ``traditional and
cultural'' properties referenced in the reviewer's comment may also be
construed as an historic or archaeologic property, then the standards
of this rule would apply. Otherwise, these properties will be
administered in accordance with the other relevant statutory and
regulatory authorities available.
Comment: References to the National Historic Preservation Act
(NHPA), Archeological Resources Protection Act (ARPA), and American
Indian Religious Freedom Act (AIRFA) should be included in the rule. In
light of the Forest Service's responsibilities pursuant to NHPA, ARPA,
and AIRFA, two reviewers suggested that the rule should include
explicit references to ensure that the agency complies with their
provisions in carrying out the provisions of this rule. These reviewers
also urged that the rule include consultation requirements with
affected Indian tribes.
Response: Section 292.42 of the proposed rule acknowledged that the
administration of the HCNRA must be in accordance with all the laws and
regulations applicable to National Forest System lands and resources,
not just those specifically applicable to the HCNRA. The Forest Service
determined that it would be too unwieldy to call out in the text of the
rule each statute and/or regulation that applies to a particular use or
activity in the HCNRA. Consequently, the Supplementary Information
section of the proposed rule referenced those authorities. For
historic, archeological, and paleontological resources, the proposed
rule listed NHPA, ARPA, the Antiquities Act, and regulations at 36 CFR
parts 296, 800. This list should also have included AIRFA. Express
consultation requirements with Indian tribes would be duplicative of
existing authority and thus not necessary in this rule.
Comment: Access to archeological sites should be limited and Forest
Service personnel should be present for interpretation and protection
purposes. One reviewer agreed with the proposed rule that protection
should be the dominant management objective for cultural resources but
attributed two recent acts of vandalism at an archeological site to the
Forest Service's reconstruction of a road to this site and the lack of
protection there. Based on the above, this reviewer suggested that the
rule should be strengthened to include standards which would bar
further development of roads or other access routes to archeological
sites. In addition, this reviewer recommended that all interpretation
activities occur off-site unless a site is already developed and
regularly visited, in which case Forest Service personnel should be
available at the site to interpret it and guard against theft and
vandalism.
Response: The recent incidents of vandalism at Pittsburgh Landing,
a popular recreation site, are truly unfortunate. The Forest Service is
currently evaluating steps that can be taken to prevent a recurrence of
this type of incident in the future. The agency strongly believes that
these incidents are the exception rather than the rule and that
thousands of people enjoy and learn from the historic and archeological
properties in the HCNRA every year.
The agency does not believe that the reviewer's recommended
modifications to the rule would significantly strengthen the protection
afforded cultural resources in the HCNRA. Sufficient authority exists
under the standards of this rule to address problems like the one
experienced at Pittsburgh Landing on a case by case basis. While the
reviewer's recommendations would not necessarily improve the level of
protection afforded under the rule, it would greatly impair efforts to
manage these resources for education and enjoyment. As a result, this
suggestion did not result in a change in the final rule.
Comment: Funding for the protection of cultural resources should be
a priority for the HCNRA and should be written into the rule. One
reviewer noted that funding for the protection of cultural resources
should be one of three funding priorities for the HCNRA and that this
should be explicitly written into the rule.
Response: Funding for the various functions and operations of the
HCNRA, or any other unit of the National Forest System for that matter,
is extremely complicated and depends on, among other things, the annual
budget and appropriations processes. Establishing priorities in a rule
is neither appropriate nor an accepted means of allocating funds.

2. Section 292.44, Use of Motorized and Mechanical Equipment

The proposed rule established four standards for the use of
motorized and mechanical equipment in the Other Lands of the HCNRA.
Briefly, the standards for the Other Lands were: (1) that motorized and
mechanical equipment could be used on Forest Service roads and
airstrips; (2) that motorized and mechanical equipment could be used on
Forest Service trails if the use is compatible with Section 7 of the
Act; (3) that mechanical equipment could be used off roads, airstrips,
and trails if the use is compatible with Section 7 of the Act; and (4)
that motorized equipment would be prohibited off roads, airstrips, and
trails unless it was necessary to comply with Section 7 of the Act. For
the Wilderness Lands in the HCNRA, the proposed rule simply explained
that the use of motorized and mechanical equipment was prohibited
except as provided for under the Wilderness Act. The Wilderness Act
prohibits the use of motorized and mechanical equipment except for
administrative purposes, and to control fire, insects, and disease.
The proposed rule adopted the definitions of ``motorized
equipment'' and ``mechanical transport'' currently located in 36 CFR
293.6 rather than derive a new definition for these terms. The proposed
rule also exempted from these standards administrative functions,
scientific research, public health or safety emergencies, access to
inholdings, and timber harvesting, grazing and mining as authorized
under this rule.
Comment: The definition of motorized and mechanical equipment is
confusing. Several reviewers commented that the definition of motorized
and mechanical equipment in the proposed rule was confusing and that a
specific definition for those terms should be provided rather than
including a cross reference to another section of the Code of Federal
Regulations (CFR). One reviewer suggested that the rule adopt the terms
``motorized equipment'' and ``mechanical transport'' as used in the
Wilderness Act.
Response: The Forest Service agrees and has included a full
definition of motorized and mechanical equipment in Sec. 292.41 of the
final rule rather than a citation to a different section of the CFR.
The meaning of this term is unchanged. The final rule does not
substitute ``motorized equipment'' and ``mechanical transport'' for
``motorized and mechanical equipment'' since the latter term was
specifically used in Section 10(c) of the Act.
Comment: The exceptions to the standards restricting use of
motorized and mechanical equipment in the HCNRA swallow the rule. One
reviewer felt that the exceptions for administration, access, research,
health and safety, timber harvesting, grazing and mining listed at the
beginning of this section rendered the motorized and mechanical
equipment use standards of little force and effect.
Response: The Forest Service disagrees. The exceptions listed in
this section are intended to be narrowly construed. They were deemed
necessary for two reasons. The administrative, access, research, and
health and safety exceptions were thought necessary to meet the
fundamental needs of the Forest Service to administer the HCNRA in
conformance with the Act. The timber harvesting, mining, and grazing
exceptions were deemed necessary to avoid any potential internal
conflict between this section and the sections governing those
activities. That is, conceivably some activities that could be
authorized under the timber harvesting, mining, or grazing activities
sections of the rule could be foreclosed if the use of motorized or
mechanical equipment was required for these activities but prohibited
under this section. Therefore, the Forest Service decided that, in
those limited circumstances prescribed by this rule where timber
harvesting, mining or grazing could occur within the HCNRA, the
standards for use of motorized and mechanical equipment could not
operate to impair or preclude that activity.
Comment: More restrictive conditions should apply to the use of
motorized and mechanical equipment in the HCNRA. Two reviewers urged
that the restrictions on the use of motorized and mechanical equipment
should be more stringent. One reviewer urged that all motorized
equipment should be banned which conflicts with non-motorized use of
the HCNRA. Another reviewer urged that all use of motorized and
mechanical equipment should be prohibited except that necessary for
emergency responses and for the delivery of mail. Another reviewer
suggested that the impacts of the use of motorized and mechanical
equipment on rivers and fish and wildlife habitat should be evaluated
and banned where damage can be documented.
Response: More restrictive conditions on the use of motorized and
mechanical equipment as described above are both unnecessary and
undesirable. The Forest Service believes that conflicts between
motorized and non-motorized use can be better addressed through the
planning process and amendments to the Comprehensive Management Plan
which would designate roads and trails where the use of motorized
equipment can occur. The agency also believes that an outright ban on
all use of motorized and mechanical equipment except to deal with
emergencies and to deliver mail is not a reasonable proposal in light
of the Act's acknowledgment that such use is permissible, the sheer
magnitude of the HCNRA, and the nature of the agency's administrative
and other responsibilities.
Comment: Off Road Vehicles (ORVs), All Terrain Vehicles (ATVs),
Bulldozers, and other Land Disturbing Vehicles should be Specifically
Addressed in the Rule. One reviewer commented that the above types of
vehicles should be expressly dealt with in the rule.
Response: ORVs, ATVs, bulldozers and other land disturbing vehicles
are covered by the definition of motorized equipment. Specific
reference to these types of vehicle is not necessary.
Comment: Activities on or uses of the Other Lands in the HCNRA that
could be authorized under these standards may be contrary to the Wild
and Scenic Rivers Act. As described in the General Comments section
above, one reviewer noted that the standards for Other Lands which
authorized the use of motorized and mechanical equipment off of roads,
trails, and airstrips subject to its consistency with the management
objectives of Section 7 of the Act presented a potential conflict where
wild and scenic river corridor lands were concerned. The potential for
conflict would be exacerbated on wild and scenic river segments
classified as ``wild'' which is defined by the Wild and Scenic Rivers
Act as ``* * * generally inaccessible except by trail, which watersheds
or shorelines essentially primitive.'' 16 U.S.C. Sec. 1274(b).
Response: The Forest Service agrees with this reviewer's
observations and has split out Wild and Scenic Rivers from the Other
Lands category. Accordingly, in Section 292.41, the definition of
``Other Lands'' has been modified to exclude Wild and Scenic Rivers
from its scope and the definition of ``Wild and Scenic Rivers'' has
been modified to clarify that lands within the wild and scenic corridor
are included as part of this category.
In this section, the final rule includes two new standards for wild
and scenic rivers. The first authorizes the use of this equipment on
segments designated ``scenic'' or ``recreational'' provided that such
use is compatible with the Wild and Scenic Rivers Act. The second
authorizes the use of this equipment on segments designated ``wild''
only if this use is necessary to protect and enhance the values for
which the river was designated.
Comment: The role of airstrips in the HCNRA. Several reviewers
objected to the number and use of airstrips in the HCNRA and urged that
standards should be adopted which would reduce or eliminate airstrips
in the HCNRA. One reviewer remarked that the term ``designated'' should
apply to airstrips as well as roads and trails.
Response: There are only eight airstrips in the 625,00 acre HCNRA.
These airstrips have been used for more than 40 years. Of these eight
strips, seven are primitive, two-wheeled routes on naturally flat land
surfaces. Only one is roughly surfaced with rock to allow for water
drainage. The primitive strips do not appear on Forest Service or FAA
maps and are primarily used for low use and emergency landings. The
Forest Service believes that the primitive landing strips are a
necessary adjunct of administering an area as expansive as the HCNRA
and may be an important, though seldom used, safety feature. Whether
and to what extent some or all of these airstrips should be closed is
an issue that should be discussed in the context of the Comprehensive
Management Plan and not this rule. The Forest Service has inserted the
term ``designated'' as a modifier for ``airstrips'' in the final rule.

3. Section 292.45, Use of Motorized and Non-Motorized Rivercraft

The proposed rule established seven standards for the use of
motorized and non-motorized rivercraft in the HCNRA. The standards only
applied to the Snake, Rapid, and Imnaha Wild and Scenic Rivers and any
other rivers in the HCNRA which might be subsequently designated
pursuant to the Wild and Scenic Rivers Act. Briefly, the standards
were: (1) that the use of non-motorized rivercraft was authorized
subject to certain terms and conditions; (2) that the use of motorized
rivercraft was prohibited except on the Snake Wild and Scenic River;
(3) that all rivercraft use is subject to boating safety and
registration laws; (4) that the use of motorized and non-motorized
rivercraft on the Snake River required prior written authorization and
was subject to certain terms and conditions; (5) that the authorization
of motorized and non-motorized rivercraft use on the Snake River must
reasonably accommodate private and commercial users of each type of
rivercraft; (6) that authorization of motorized and non-motorized
rivercraft use on the Snake River must not exceed the user capacity of
the Snake River; and (7) that authorization of motorized and non-
motorized rivercraft use on the Snake River must be done in such a way
as to minimize conflicts between motorized and non-motorized rivercraft
users and between rivercraft users and all other users of the Snake
River.
By far, the greatest number of comments received on the proposed
rule concerned this section. The comments were exceptionally diverse,
generally sound, and frequently included diametrically opposed
solutions to improve the rule. For instance, some reviewers concluded
that no conflict existed between motorized and non-motorized rivercraft
use, others concluded that the conflict threatened the very integrity
of the HCNRA. Some reviewers felt that the commercial users were
principally responsible for the conflict, others concluded that the
private users were as much, if not more, to blame. Some reviewers
wanted to accommodate personal watercraft (jet ski) use in the HCNRA,
others wanted to prohibit it.
Comment: The Forest Service lacks the legal authority to regulate
rivercraft use on the Snake and Salmon Rivers. One reviewer argued that
the Forest Service had vastly exceeded the scope of its legal authority
by developing standards for recreational uses of rivercraft on the
Snake and Salmon Rivers since those rivers are navigable waterways and
thus ``owned'' by the States of Oregon and Idaho. Accordingly, this
reviewer suggested that only Oregon and Idaho could regulate
recreational activities on the Snake and Salmon Rivers. The Forest
Service authority could only extend to activities on those streams that
could be regulated pursuant to the Property and Commerce Clauses of the
Constitution. The only way a standard in this section could be valid
under the Property Clause would be if that standard was ``reasonably
necessary to protect federal land.'' Likewise, the only way a standard
in this section could be valid under the Commerce Clause would be if
that standard was related to and necessary for navigation. The reviewer
noted that standards in the proposed rule dealing with safe use and
enjoyment of the river, seasons of use, noise limits, user capacity,
and conflicts between rivercraft and other users of the HCNRA all
exceeded the federal government's limited authority under the Commerce
and Property Clauses.
Response: The Forest Service disagrees and believes that the
reviewer has adopted an unusually pinched view of the Federal
Government's authority under the Commerce and Property Clauses of the
Constitution.
Congress has defined ``navigable waters'' to include those parts of
streams or other bodies of water over which Congress has jurisdiction
under its authority to regulate commerce with foreign nations and among
the several states, and which either in their natural or improved
condition are used or suitable for use for the transportation of
persons or property in interstate or foreign commerce. 16 U.S.C.
Sec. 796(8). It would appear, based on the above definition, that the
Snake River clearly qualifies as a navigable water of the United
States.
Assuming the Snake River is navigable, the Federal Government has
paramount control over it for purposes or regulating interstate and
foreign commerce. The power of the United States over navigable waters
extends to any matter that may properly be considered a regulation of
interstate or foreign commerce on such waters and is not limited to
control for purposes of navigation only. In United States v.
Appalachian Electric Power Co., 311 U.S. 377, 426 (1941), the Supreme
Court categorically rejected a similar view to that proffered by this
reviewer when it stated,

In our view, it cannot properly be said that the constitutional
power of the United States over its waters is limited to control for
navigation. By navigation, respondent means no more than operation
of boats and improvement of the waterway itself. In truth, the
authority of the United States is the regulation of commerce on its
waters. Navigability, in the sense just stated, is but a part of
this whole. Flood protection, watershed development, recovery of the
cost of improvements through utilization of power are likewise parts
of commerce control.

While the States may exercise substantial control over navigable
waters, they may only do so to the point that it is not inconsistent
with federal actions or functions and does not materially or
unreasonably interfere with or burden commerce.
In this instance, as the reviewer correctly pointed out, the
Federal Government may also regulate under the Property Clause of the
Constitution which enables Congress to ``* * * make all needful rules
and regulations respecting the * * * property of the United States.''
U.S. Const. Art. IV, Sec. 3, cl. 2. The reviewer also correctly noted
that such regulations may regulate conduct on non-federal land when
reasonably necessary to protect adjacent federal property or navigable
waters. United States v. Lindsay, 595 F.2d 5, 6 (9th Cir. 1979).
Inasmuch as a considerable amount of commerce takes place on the
Snake River annually and thousands of acres of National Forest land
surround it, the Forest Service believes that each of the standards
challenged by the reviewer is authorized under either the Commerce
Clause or the Property Clause.
Comment: Because the Forest Service has been unable to demonstrate
that a conflict exists involving motorized and non-motorized
rivercraft, this section should be eliminated. One reviewer commented
that he had repeatedly requested information from the Forest Service
concerning the existence and scope of the conflict between motorized
and non-motorized rivercraft and, to date, had not received a
satisfactory response from the agency. Therefore, this reviewer stated
that this section of the rule is unnecessary and should be deleted.
Response: As a factual matter, there may be some dispute over the
existence of a conflict between motorized and non-motorized rivercraft.
Contrary to this reviewer, several other noted that the conflict
between rivercraft users was extreme.
However, the reviewer misses the point by suggesting that a
conflict must exist in order to justify this regulation. As described
in some detail above, the Act authorized the Secretary to promulgate
regulations for ``the control of the use and number of motorized and
non-motorized rivercraft * * *''. The United State Court of Appeals for
the 9th Circuit concluded that this authority was non-discretionary in
ONRC v. Lyng. Therefore, regardless of the existence or absence of a
conflict, this rule must be promulgated.
Comment: The standards should not distinguish between designated
wild and scenic rivers and other rivers in the HCNRA. Several reviewers
commented that it was confusing and potentially difficult to comply
with the standards in this section that pertained only to rivers in the
HCNRA that had been designated wild and scenic. Most reviewers thought
that the standards should be more broadly applied to all rivers in the
HCNRA regardless of wild and scenic designation. One reviewer felt that
this section improperly overemphasized wild and scenic rivers over the
HCNRA.
Response: The Forest Service agrees that the selective application
of standards to motorized and non-motorized rivercraft use based solely
on the location of the craft on a river might be difficult to comply
with and to administer. This would especially be the case on the Snake
River where one segment of the river is undesignated while the adjacent
segments are designated. Therefore, the scope of the section dealing
with rivercraft use standards will be broadened to apply to rivers
throughout the HCNRA.
Wild and scenic rivers have not been overemphasized in this rule.
It is important to remember, though, that the wild and scenic rivers in
the HCNRA are administered pursuant to the Wild and Scenic Rivers Act,
not the HCNRA Act. The inclusion of this language simply ensures that
the application of these standards to wild and scenic rivers will not
be contrary to direction in the Wild and Scenic River Act.
Comment: Motorized use of the ``wild'' sections of the Snake Wild
and Scenic River should be prohibited. One reviewer noted that
notwithstanding the HCNRA Act's recognition of motorized rivercraft use
as ``valid'' on the Snake River, such use is inconsistent with and
should be prohibited on those segments of the Snake Wild and Scenic
River that are classified as ``wild'' under the Wild and Scenic Rivers
Act.
Response: The legislative history of the Act indicates that a 32.4
mile segment of the Snake River, from Hells Canyon Dam downstream to
Pittsburg Landing is classified as a ``wild'' river under the Wild and
Scenic Rivers Act. 94th Cong., 1st Sess., Comm. on Interior and Insular
Affairs, Rept. No. 153 at 4 (May 22, 1975).
Section 2(b) of the Wild and Scenic Rivers Act defines ``wild'' in
the context of classifying segments of rivers designated under the Wild
and Scenic Rivers Act as ``[t]hose rivers or sections of rivers that
are free of impoundments and generally inaccessible except by trail,
with watersheds or shorelines essentially primitive and waters
unpolluted. These represent vestiges of primitive America.'' 16 U.S.C.
Sec. 1272(b)(1). In the Guidelines for Eligibility, Classification, and
Management of River Areas (hereafter ``Guidelines'') published jointly
by the Department of the Interior and the Department of Agriculture,
the criteria for classifying a river segment as ``wild'' was further
detailed. 47 Federal Register 39454, 39457 (Sept. 7, 1982).
Based on the above, ``wild'' as defined in the Wild and Scenic
Rivers Act and further developed in the Guidelines relates principally
to the quantum and type of development that exists on the shorelines
and in the corridors through which a wild and scenic river traverses.
It does not relate to the type of rivercraft used on the river itself.
Even assuming that the definition of ``wild'' in the Wild and
Scenic Rivers Act could be construed to foreclose or discourage
motorized use on segments so classified, Section 10 of the HCNRA Act
included a clear expression of congressional intent that recognized
motorized rivercraft use of the Snake River as valid. The Forest
Service believes that this clear statement of congressional policy in
the HCNRA Act overcomes any contrary interpretation of the Wild and
Scenic Rivers Act and Guidelines which might be proffered as a means of
categorically prohibiting motorized rivercraft use on the Snake River.
Comment: Specific standards for motorized rivercraft use of the
Snake River should include provisions for slowing for floaters, speed
limits for specific locations, noise level limits, no-wake zones, use
of music or sound devices, water skiing, visible identification
numbers, limited jet boat runs, defining jet boat launches, prohibiting
operation while under the influence of intoxicants, requiring fuel
leakage reduction, rights of way for floaters in rapids, prohibiting
jet skis and other nontraditional rivercraft. One reviewer argued that
the proposed rule, in general, is ``grossly inadequate'' and this
section, in particular, ``completely fails to satisfy the requirement
of the NRA Act * * *''. This reviewer interpreted the 9th Circuit
decision in ONRC v. Lyng as requiring site specific standards tailored
to the unique situation on the Snake River where both motorized and
non-motorized rivercraft use is present. The proposed regulations,
however, ``simply defer to another undescribed forum, and have
virtually no force in carrying out the requirements of the Act.'' To
remedy this flaw, this reviewer asserted that the above lengthy and
nearly exhaustive list of standards should be included in this section
and posted at all portals. Furthermore, the reviewer stated that all
jet boat operators should be required to sign a statement that they
have read and understood these standards.
Response: The scope and extent of standards which this reviewer
seeks to include in this rule is not legally mandated under either the
Act or the 9th Circuit's decision in ONRC v. Lyng. The Act authorized
regulations ``for the control of the use and number of motorized and
non-motorized rivercraft; Provided that the use of such craft is hereby
recognized as a valid use of the Snake River within the recreation
area.'' 16 U.S.C. Sec. 460gg-7(d). The 9th Circuit decision in ONRC v.
Lyng merely interpreted the Act as mandating the promulgation of
``nonduplicative regulations of the sort described by Sections 10(a)
through (e).'' Neither the Act nor the 9th Circuit prescribed the form
or content that those regulations should take.
Not only are the adoption of standards in this rule such as those
recommended by this reviewer not legally required, they are also not
conducive to prudent and responsible land and resource management. The
Forest Service believes that the inclusion in rule form of these
standards would hamstring their ability to administer the HCNRA in
conformance with the Act. For instance, the inclusion of these
standards in this rule might require the agency to allocate scarce
resources for enforcement of matters which rate relatively low in an
overall scale of management priorities. Furthermore, the standards
would inevitably become obsolete at some point in the future. That
point could come in six weeks, six months, or six years and could
depend on advances in science, technology, or the law. It could also
simply be dependent on changing social norms. Once the point of
obsolescence was reached, however, another rulemaking would be
necessary. This is a poor way to address and respond to development
which requires a shift in management emphasis.
Far better from the agency's point of view that these developments
be accommodated in the Comprehensive Management Plan. This document can
be amended and revised more expeditiously than a regulation which
requires notice and comment under the Administrative Procedures Act. Of
course, as was noted in the proposed rule, management direction in the
Comprehensive Management Plan would necessarily have to conform with
the provisions of the Act and the standards in this rule.
Finally, the agency wishes to point out that one of the standards
in the proposed rule required compliance with all Federal and State
boating safety and registration laws. This would include, but not be
limited to the Idaho Safe Boating Act, I.C. Secs. 67-7001 et seq., and
the Oregon Small Watercraft Act, O.R.S. Secs. 830.005 et seq. Many of
the items that the reviewer wanted to include as explicit standards in
this rule are amply treated in these enactments and may be enforced in
the HCNRA pursuant to this provision in the rule.
Comment: Rivercraft use standards should not discriminate against
users of personal watercraft in the HCNRA. One reviewer wrote to ensure
that standards for the use of motorized rivercraft not unfairly
discriminate against personal watercraft which are commonly, though
incorrectly, referred to as ``jet skis.'' This reviewer acknowledged
that the proposed rule did not, on its face, include any such
discrimination and encouraged that any further refinement of these
standards in the final rule or Comprehensive Management Plan classify
and treat personal watercraft just like any other form of motorized
rivercraft.
Response: The reviewer is correct that no attempt is made in this
rule to consider personal watercraft separately from other forms of
motorized rivercraft. However, the inclusion of personal watercraft,
jet boats, motor boats, and other vessels as ``motorized rivercraft''
in this rule does not mean that they are identical or should be treated
identically in all situations that may arise in the future. Clearly,
there are differences in the size, weight, speed, maneuverability, and
other features of these vessels which may suggest, or indeed dictate,
that they be under different management regimes in order to protect the
HCNRA or to protect public health and safety. Those management
decisions will be made in the context of the Comprehensive Management
Plan. In the event such management decisions distinguishing between the
various types of motorized rivercraft are made, they would be well-
reasoned, based on credible evidence, and would include the benefit of
public involvement.
Comment: The term ``carrying capacity'' should be used instead of
``user capacity.'' Several reviewers urged that the term ``carrying
capacity,'' rather than the term ``user capacity,'' be employed in the
section concerning standards for rivercraft use. One reviewer felt that
the phrase ``limits of acceptable change'' would be preferable to
``user capacity'' or ``carrying capacity'' for determining the
benchmark for rivercraft use. The reviewers encouraged that these terms
should be defined.
Response: The Forest Service agrees with the reviewers who felt
that the term ``carrying capacity'' was more appropriate in this rule
and has substituted that term for ``user capacity'' in the final rule.
However, since this is a well understood term in the planning and
recreation professions and would not be subject to a special meaning
under this rule, a definition is deemed unnecessary.
Comment: Definitions should be included in the rule for
``numbers,'' ``values,'' ``user conflicts,'' ``seasons,'' ``noise
limits,'' ``private users,'' and ``commercial users.'' One reviewer
noted that several key terms in this section of the rule should be
specifically defined. Presumably, this reviewer felt that definitions
would be necessary to ensure that the Forest Service's interpretation
is not unreasonable, is not changed over time, or is not selectively
applied.
Response: The above terms are neither unusual nor do they have a
special connotation as applied in this rule. Common sense will be the
guide in defining these terms. Special definitions in this rule are
unnecessary for these terms.
Comment: Rivercraft use levels should be restricted to the levels
in existence as of 1975, the date of establishment of the HCNRA. Two
reviewers commented that rivercraft use has greatly expanded since
Congress designated the HCNRA in 1975 and that this rule should be used
to scale back the amount of rivercraft use to 1975 levels.
Response: In enacting the Act, Congress authorized regulations for
``the control of the use and number of motorized and non-motorized
rivercraft; Provided that the use of such craft is hereby recognized as
a valid use of the Snake River within the recreation area.'' There is
no indication in the Act that Congress intended to restrict the use of
rivercraft to the level that existed in 1975. Clearly, Congress could
have included such a condition if it had been so inclined.
Absent clear congressional expressions in the Act stipulating that
rivercraft use be locked into 1975 levels, the Forest Service has
adopted the well-reasoned and balanced approach that the amount of
rivercraft use will depend on what use can be sustained while meeting
the management goals and objectives of the Act and the Wild and Scenic
Rivers Act. Therefore, the Forest Service declines to modify the rule
in the manner recommended by these reviewers.
Comment: The authorization of motorized rivercraft use should
extend to that portion of the Salmon River in the HCNRA. One reviewer
mentioned that a short \1/4\ mile segment of the Salmon River is
located within the HCNRA and that motorized rivercraft are currently
used on this segment. This reviewer urged that the standards be revised
to extend the authorization of motorized rivercraft to this \1/4\ mile
segment of the Salmon River.
Response: The Forest Service agrees that the standard which
prohibits motorized rivercraft use in the HCNRA should exclude both the
Snake River and that portion of the Salmon River in the HCNRA. The rule
has been changed accordingly.
Comment: Violations of the standards of this section should result
in forfeiture of private land. One reviewer explained that compliance
with the provisions of this section is as important as compliance with
the land uses set out in the private rules. Therefore, this reviewer
queried why violations of the motorized rivercraft standards shouldn't
also result in the forfeiture of private land.
Responses: The ``private rules'' referred to by this reviewer are
the recently adopted final regulations under Section 10(a) of the Act
which established standards for the use and development of private
land. That rule established standards and guidelines for development of
privately-owned land in the HCNRA which, if violated, could lead to the
Forest Service's acquisition of the land or an interest therein with or
without the landowner's consent. Acquisition without the landowner's
consent is technically referred to as ``condemnation,'' not
``forfeiture.'' Since the Forest Service may not regulate private land
uses per se, condemnation was deemed to be the most effective means by
which the agency could ensure that private land uses and developments
would not compromise the integrity of the HCNRA. Condemnation of
private land would be a highly inappropriate response to violations of
the motorized rivercraft use standards. Condemnation is available only
to acquire lands used in a manner inconsistent with the private land
use regulations. Use of watercraft has nothing to do with private
lands. The rule already includes a sufficient array of mechanisms by
which the standards of this section can be enforced. These enforcement
mechanisms include issuing citations under 36 CFR Secs. 261 et seq.,
revoking the authorization for rivercraft use, or pursuing an
injunction in a civil enforcement action.

4. Section 292.46, Timber Harvesting Activities

The proposed rule established two standards for timber harvesting
in the Other Lands of the HCNRA. Briefly, the standards for the Other
Lands were: (1) that timber could only be harvested to protect and
enhance ecosystem health and wildlife habitat, promote recreational
activities, remove hazard trees, or in response to disease or pest
infestation, fire, flood, earthquake, or similar natural events; and
(2) that where authorized, the harvesting could be accomplished only by
means of selective or intermediate cuttings in which the openings
created by the cutting would be limited to the minimum size and number
necessary to accomplish the purpose of the harvest. For the Wilderness
Lands in the HCNRA, the proposed rule simply explained that timber
harvesting was prohibited except in accordance with the provisions of
the Wilderness Act.
Comment: The rule should expressly include a standard stating that
timber will not be harvested principally for commercial purposes. Two
reviewers noted that in the preamble to the proposed rule it was noted
that timber would not be harvested solely for commercial gain but that
this statement was not reiterated in the text of the proposed rule.
These reviewers recommended that the text of the regulation include
this language. One of these reviewers also noted that the primary
objective of these standards should be to overrule and void the
provision in the Comprehensive Managemment Plan that includes forests
in the HCNRA as part of the regulated component of the Wallowa-Whitman
National Forest timber base.
Response. The Forest Service agrees and has revised the first
standard in this section to explain that timber may ``only'' be
harvested for the reasons set out in this standard. In so doing, the
Forest Service expects that the situations where timber harvesting may
be authorized will be better understood. It should be noted, however,
that in those instances where timber harvesting is consistent with the
standards in this rule, it will usually be accomplished by means of a
commercial harvest. That is, the Forest Service will identify the area
where harvesting is desired and the conditions under which the
harvesting can occur. Then a written agreement would be entered into
with a timber purchaser who would carry out the harvest in accordance
with the terms and conditions of the agreement.
The inclusion of a specific standard overruling that portion of the
Comprehensive Management Plan is unnecessary since Sec. 292.42 clearly
states that ``[t]he standards and guidelines of this [rule] govern the
previous programmatic direction in the Comprehensive Management Plan
that has been incorporated into the Wallowa-Whitman National Forest
Land and Resource Management Plan.''
Comment: Timber harvesting by means of intermediate cutting should
be eliminated. Several reviewers were critical of the inclusion of
``intermediate cutting'' as a viable means of harvesting timber where
that activity would be authorized under the standards for the HCNRA.
They urged that the term be removed.
Response: Where authorized under the standards in this rule, the
Forest Service will restrict timber harvesting to selective cutting in
conformance with the standards in this rule. All references to
``intermediate cutting'' have been removed from the final rule.
Comment: Insect infestation, rather than pest infestation, should
be listed as a recognized purpose of timber harvesting in the HCNRA.
One reviewer felt that it was more appropriate and less pejorative to
use the term ``insect infestation'' instead of ``pest infestation'' to
describe one of the purposes for which timber harvesting may be engaged
in the HCNRA.
Response: The Forest Service agrees and has inserted the term
``insect'' for the term ``pest'' in the final rule.
Comment: Timber harvesting should be authorized only in situations
where hazard trees threaten popular sites and where fires threaten
campgrounds or picnic areas. One reviewer was concerned that the
exceptions under which timber harvesting could be authorized were too
broad and would be abused by the Forest Service. This reviewer
suggested that timber harvesting should only occur to remove hazard
trees from popular areas or to protect campgrounds or picnic areas from
fire. Otherwise, there should be no further logging in the HCNRA.
Response: Section 13 of the Act recognizes the harveting of timber
as a valid use of the HCNRA. Section 10 of the Act authorizes
regulations for timber harvesting as are consistent with the management
objectives of the HCNRA which include, among other things, the
protection of free-flowing streams, the conservation of scenic,
wilderness, cultural, and scientific values, the preservation of
biologically unique features, the protection of fish and wildlife
habitat, the protection of archeological and paleontologic sites, and
the preservation and restoration of historic sites.
The standards in this section fully comply with the management
objectives of the Act. Furthermore, additional limitations on
situations where harvesting could be authorized may severely impair the
agency's ability to administer the HCNRA in conformance with the Act.
As a case in point, consider the windstorm that blew down several acres
of spruce trees in a roadless area just outside the HCNRA boundary a
few years ago. There, a decision was made not to harvest those tree.
Subsequently, an endemic spruce bark beetle population grew to epidemic
proportions, spreading out from the site of the original blowdown and
killing most of the spruce trees in the HCNRA. Many of these spruce
trees were located near streams and in riparian areas which have
suffered in their absence from the loss of critical shade which kept
the streams cool and root systems which kept the streambanks
stabilized. In hingsight, it is worth considering whether this loss of
trees and resultant damage to riparian areas could have been averted by
the prompt removal of the windthrown trees.
These standards will enable the agency to address this type of
situation efficiently and with due regard for the resources in the
HCNRA and objectives for which they are to be managed.
Comment: Where timber harvesting is to be authorized it should be
done sensitively, holistically, or by using non-mechanized equipment
like draft horses. Several reviewers urged that in those cases where
timber harvesting would be authorized under the standards in this rule,
it should be accomplished in the most sensitive manner possible. For
example, these reviewers recommended that draft horse logging could be
required as an alternative to the construction of costly and
environmentally damaging logging roads.
Response. When authorized under this rule, timber harvesting
activities will be conducted using the most appropriate technique that
fits the particular situation. Clearly, in some instances logging by
means of draft horses would be feasible and entirely appropriate. In
other cases, harvesting by mechanized and/or motorized equipment may be
necessary due to the location of the harvest and/or the urgency
associated with it. All of these factors will be duly considered in
fashioning the harvest method.
Timber harvesting will be conducted using an ecological approach to
management, subject to the limits imposed by this rule, and will
generally be designed to maintain or create forest vegetation patterns
and landscapes that mimic those from historic natural disturbances.
Comment: Standards for timber harvesting activities within wild and
scenic river corridors in the HCNRA are inconsistent with the Wild and
Scenic Rivers Act. One reviewer remarked that the timber harvesting
standards for Other Lands in the HCNRA would result in the
authorization of certain timber harvesting activities within wild and
scenic river corridors that exceed the legal authority for such
activities under the Wild and Scenic Rivers Act. This would
particularly be the case on wild and scenic river segments classified
``wild'' under the Wild and Scenic Rivers Act.
Response. The Forest Service believes that the standards in the
proposed rule for Other Lands were sufficiently restrictive that they
would pass muster under the Wild and Scenic River Act where wild and
scenic river corridor lands were involved. However, in order to
maintain consistency with the other sections of this rule, separate
timber harvesting standards have been developed in the final rule for
wild and scenic river corridor lands and the other non-wilderness
National Forest Lands in the HCNRA.
For river segments classified ``scenic'' or ``recreational,''
timber may be harvested only when to do so would protect and enhance
the values for which the river was designated. For river segments
classified ``wild,'' timber could only be harvested to provide for
recreational facilities like trails, remove hazard trees, or to respond
to natural events. In those cases where timber harvesting would be
authorized within the corridors of wild and scenic rivers, the harvest
would be conducted in the same manner as harvests on the Other Lands of
the HCNRA.

5. Section 292.47, Mining Activities

The proposed rule established four standards for mining activities
in the Other Lands of the HCNRA. These same four standards and an
additional one were established for mining activities in the Wilderness
Lands in the HCNRA. Briefly those standards were: (1) That all mining
activities were prohibited subject to valid existing rights; (2) that
the impact of mining activities would be limited and directed away from
Wilderness Lands and Wild and Scenic Rivers; (3) that mineral materials
may be used in the HCNRA only for the construction and maintenance of
roads, airfields, trails, and recreation developments; (4) that sources
of mineral materials should be located outside the HCNRA unless the
costs are significant or the transportation presents a safety concern;
and (5) that the extraction of mineral materials is prohibited on
Wilderness Lands.
Comment: Restrictions by the United States on mining activities in
the bed and banks of navigable rivers in the HCNRA are impermissible
since that land is owned and controlled by the States of Oregon and
Idaho. One reviewer contended that the bed and banks of the Snake River
below the mean high water line are owned by the States of Oregon and
Idaho and therefore any mining activities occurring thereon would be
subject to the control of the state, not the federal, government. This
reviewer encouraged the Forest Service to clarify the ownership of
these lands in the final rule in order to avoid future confusion.
Response: At the outset, it should be noted that no provision in
the proposed rule purported to prohibit or restrict mining activities
on non-National Forest System lands. Section 292.42(b) of the proposed
rule specifically stated that the standards in the rule applied only to
National Forest System lands in the HCNRA. Obviously, lands owned by
the States of Oregon and Idaho would not fall under the provisions of
this rule.
The Forest Service agrees that clarifying the issue of who owns the
bed and banks of navigable rivers in the HCNRA and who has regulatory
authority over them would be beneficial and may reduce the potential
for controversy and confusion in the future. However, such
clarification cannot be done in this Federal Regulation since it may
involve the adjudication of property rights.
The reviewer is correct that the rights and interests in the beds
and banks of navigable waters are owned by the state in which they are
located, and that the regulation of the land under navigable waters is
properly the subject of the state's police power regulatory authority.
However, the state's regulatory authority over these matters is not
absolute. Rather, as is the case with navigable waters, lands
underneath navigable waters are also subject to the paramount authority
of the United States. This paramount authority is derived from the
Commerce and Property Clauses and extends to matters involving
commerce, navigation, and protection of Federal lands, among other
things. Mining would clearly fall into the category of activities that
could be regulated by the United States under this paramount authority.
Comment: By including activities under the Materials Act of 1947 in
the definition of ``mining,'' there is an inconsistency in the
standards which prohibit all mining activities but provide for certain
mineral material extraction activities. One reviewer noted that the
standards for mining activities were confusing based on the definition
of ``mining'' in the rule which encompassed activities under the
Materials Act. By including the Materials Act in the definition of
mining, the first standard of Sec. 292.47(a) would be read to prohibit
all mineral material extraction activities. However, the third and
fourth standards specifically treat mineral material extraction
activities.
Response: The Forest Service agrees that there is an internal
conflict in the standards of this section based on the definition of
``mining.'' As a result, the definition of ``mining'' in the final rule
has been modified to delete references to the Materials Act. The
standards of the Mining Activities section remain unchanged.
Comment: Gold panning is a legitimate recreational activity that
should be accommodated in the rule. One reviewer criticized the
proposed rule's prohibition of gold panning subject to valid existing
rights. This reviewer contended that panning was a recreational
activity, not a mining activity, that could be accomplished without
threatening the HCNRA if it was limited to hand work and no tools
except the pan itself. Therefore, this reviewer felt it was
inappropriate to prohibit this activity.
Response: Individuals engaged in the extraction of minerals from
federal lands whether it be by pan, sluice box, suction dredge, or some
other means, are subject to the applicable federal and state mining
laws. It is immaterial that the underlying purpose of the mineral
extraction activity is recreational. It is also immaterial that the
impact of the mineral extraction activity would not negatively impact
the HCNRA.
In this case, Section 11 of the HCNRA Act withdrew all federal
lands in the HCNRA from the operation of the mining and mineral leasing
laws subject to valid existing rights. Similar withdrawal provisions
exist in Section 9 of the Wild and Scenic Rivers Act and Section
4(d)(3) of the Wilderness Act. This provision did not make an exception
for mining conducted for recreational purposes nor did it make an
exception for mining that would not threaten the values for which the
HCNRA was established.
Therefore, in order to engage in panning or any other mining
activity for recreational purposes on federal lands in the HCNRA, it is
necessary to demonstrate that the individual wishing to engage in that
activity held valid existing rights prior to the date of withdrawal.
Comment: If the Mining Law of 1872 is amended, royalties derived
from mining activities in the HCNRA should go to the HCNRA. One
reviewer suggested that if the Mining Law of 1872 is amended to provide
for the payment of royalties, all royalties derived from mining
activities in the HCNRA should be returned there and be used in the
administration of the area.
Response. Currently, as this reviewer indicated, there is no legal
authority under the Mining Law of 1872 to adopt this reviewer's
position. Since this comment is based on pure conjecture over whether,
and to what extent, the Mining Law of 1872 will be amended, it is
premature to address this comment at this time.
Comment: No additional gravel pits should be constructed in the
HCNRA. One reviewer recommended that any mineral materials removed from
the HCNRA should be taken from existing gravel pits and that no new
gravel pits should be excavated.
Response. The proposed rule greatly reduced the potential for
additional excavation of gravel pits in the HCNRA. It did not, however,
completely eliminate that possibility. Where non-wilderness HCNRA lands
are involved, Sec. 292.47(a)(4) of the proposed rule required that
development of gravel pits or other sites for mineral materials should
first be considered on lands outside the HCNRA. This section also
provided that sites within the HCNRA would only be considered if there
were significant economic or safety reasons militating in its favor.
Additionally, the proposed rule required that mineral materials used
inside the HCNRA must be for constructing or maintaining facilities
that are consistent with and in furtherance of the management
objectives of the Act. If the mineral materials are used outside the
HCNRA, it must be for a project which has a direct benefit to the
HCNRA. Finally, this section directed that a mineral material
extraction site inside the HCNRA must be reclaimed to its original
condition, or as close to that condition as is practicable, upon the
completion of the extraction activities. Section 292.47(b)(2) prohibits
the extraction of mineral materials in the wilderness lands of the
HCNRA.
Given the preference for development of gravel pits and other
mineral material extraction sites on non-HCNRA lands and the stringent
controls on the uses to which such mineral materials may be applied and
the reclamation requirements, the Forest Service does not think it is
necessary to completely foreclose all potential future development of
these sites inside the HCNRA. There may come a time when the
development of a mineral material extraction site inside the HCNRA is
necessary and appropriate and fully consistent with the purposes for
which the HCNRA was established. This provision preserves that
possibility.
Comment: Additional specifications for revegetation should be
provided in the rule. One reviewer noted that the standard in
Sec. 292.47(a)(4) requiring land contouring and reestablishing
vegetation failed to inform the reader as to the extent of such
activities that would be required following the extraction of mineral
materials. This reviewer contended that this provision would be abused
by those seeking to minimize the responsibility and cost associated
with such activities. This reviewer recommended that the rule include a
standard directing that land contouring, revegetation, and other
appropriate measures be required as necessary to restore the area to
its original condition.
Response: The Forest Service agrees that additional clarification
to this standard is desirable. However, it may be impossible to return
every mineral material site precisely to its original condition. As a
result, the new standard will require the party responsible for the
extraction of mineral materials to reclaim the site to its original
condition, or as reasonably close thereto as is practicable, by land
contouring and revegetation. The Forest Service believes that this will
clarify the purpose of the revegetation and land contouring without
creating an insurmountable obstacle to mineral material extraction
activities.
Comment: Performance bonds should be required prior to the
initiation of any ground disturbing activity related to mining. One
reviewer recommended that the rule include a specific provision
requiring a miner to post a bond which would be sufficient to enable
the Forest Service to restore the mining site to its original condition
if the miner does not and to serve as security for compliance with
other environmental protection requirements.
Response: Bonding is specifically required by the Forest Service
for the extraction and development of locatable minerals and mineral
materials on National Forest System lands with a few minor exceptions.
These requirements are set forth in 36 CFR 228.13 and 228.51,
respectively. Since this rule supplements existing authority, it was
deemed unnecessary to incorporate a specific bonding provision in this
rule.
Comment: Geothermal development should be prohibited in the HCNRA.
One reviewer suggested that the rule should contain a provision
prohibiting geothermal development in the HCNRA.
Response: Section 15 of the Geothermal Steam Leasing Act of 1970,
30 U.S.C. 1014, precludes the issuance of geothermal leases by the
Secretary of the Interior on National Forest System lands located
within a national recreation area. Since existing law already precludes
this type of development in the HCNRA, it was deemed unnecessary to
include an express provision in the rule reiterating that prohibition.
Comment: All valid existing rights in the HCNRA should be bought
out by the Forest Service. Two reviewers suggested that the Forest
Service consider buying out all current valid existing rights.
Presumably, in this fashion the Forest Service could consolidate
landownership patterns, improve administration of the HCNRA, and
eliminate a potentially incompatible land use from the HCNRA.
Response: Acquisition of mining lands, or interests therein, in the
HCNRA is governed by the regulations which established standards for
the use and development of private lands in the HCNRA which were
promulgated pursuant to Section 10(a) of the Act. Briefly, those
regulations are consistent with Section 9(g) of the Act which
authorized the Secretary to acquire all mining lands in the HCNRA with
or without the consent of the landowner.
Although the authority exists to acquire all valid existing mineral
interests in the HCNRA, it is not viewed by the Forest Service as a
prudent step to take at this time in light of the prohibitive potential
cost associated with such acquisitions and the very limited acquisition
funds available. At this juncture, it is preferable to regulate such
activity where it exists to protect HCNRA values.

6. Section 292.48, Grazing Activities

The proposed rule established four standards for the administration
of domestic livestock grazing activities in the HCNRA. These standards
applied to both the Other Lands and the Wilderness Lands of the HCNRA.
Briefly, the standards were: (1) That grazing could only occur on
rangeland suitable for grazing and in satisfactory condition; (2) that
domestic livestock grazing practices would be modified if they are
incompatible with preserving fish and wildlife habitat, recreation
uses, or other natural resource values and that the grazing would be
terminated if the incompatibility couldn't be eliminated; (3) that
range improvements must be designed and located in such a way as to
minimize their impact on scenic, natural, and other values in the
HCNRA; and (4) that grazing permits must include provisions to protect
and conserve riparian areas.
Comment: Additional restrictions on domestic livestock grazing
should be instituted in the HCNRA in this rule. Several reviewers
encouraged the Forest Service to include additional and express
restrictions on all forms of domestic livestock grazing activity in the
HCNRA. For instance, one reviewer recommended that all grazing should
be terminated in the HCNRA and all permits should be ``bought out'' by
the Forest Service. Another reviewer recommended that grazing in
designated wilderness areas in the HCNRA should be phased out gradually
through annual 10% reductions in the numbers of livestock.
Response. Section 13 of the HCNRA Act states that ``[r]anching
[and] grazing, * * * are recognized as traditional and valid uses of
the recreation area.''
Section 4(d)(4)(2) of the Wilderness Act states that ``the grazing
of livestock, where established prior to the effective date of this
Act, shall be permitted to continue subject to such reasonable
regulations as are deemed necessary by the Secretary of Agriculture.''
In the legislative history to the Colorado Wilderness Act of 1980,
Congress interpreted this provision to mean that grazing permits and
privileges will not be curtailed or phased out in an area simply
because that area is designated as wilderness. In a nationwide
guideline and statement of legislative policy, Congress declared

There shall be no curtailments of grazing in wilderness areas
simply because an area is, or has been designated as wilderness, nor
should wilderness designations be used as an excuse by
administrators to slowly ``phase out'' grazing. Any adjustments in
the numbers of livestock permitted to graze in wilderness areas
should be made as a result of revisions in the normal grazing and
land management planning and policy setting process, giving
consideration to legal mandates, range condition, and the protection
of the range resource from deterioration.

(Designating Certain National Forest System Lands in the National
Wilderness Preservation System, and for Other Purposes, H. Rept. 617,
96th Cong., 1st Sess. at 11 (Nov. 14, 1979)).
Based on the above statutes and legislative history, reductions in
or outright termination of livestock grazing in the HCNRA or designated
wilderness in the HCNRA cannot occur simply by virtue of the
designation of these areas as a national recreation area or a
wilderness area. Furthermore, even if such a course of action were an
option, the Forest Service would not have to ``buy out'' the permits.
Permits to graze on federal lands have been recognized by Congress and
the courts for almost a century as only conferring a license or
privilege to graze upon the permittee. As a result, except in extremely
limited circumstances, cancellation or revocation of grazing permits
does not require the payment of compensation.
Based on the above, these reviewers' suggestions are not adopted
and no change in the rule is necessary.
Comment: Future of livestock grazing activities in conflict with
natural, scenic, resource and other values for which the HCNRA
established. One reviewer suggested that the provision in the proposed
rule enabling a permittee to modify his or her livestock grazing
practices to avoid a conflict with the values for which the HCNRA was
established should be stricken. This reviewer argued that wherever a
conflict exists, the grazing activity should be terminated since, in
many instances, the modification proposed to avoid the conflict has an
equally deleterious impact on the HCNRA. Another reviewer argued in
favor of allowing the permittee to make the adjustments in the grazing
area necessary to avoid the conflict while allowing the grazing
activity to continue.
Response. Section 13 of the HCNRA Act states that ``[r]anching
[and] grazing, * * * are recognized as traditional and valid uses of
the recreation area.'' This section of the proposed rule, developed
pursuant to section 10(e) of the Act, establishes standards for the
continuation of grazing in the HCNRA which are compatible with the
provisions of the HCNRA Act.
The Forest Service believes that a reasonable interpretation of the
HCNRA Act, is to work with the grazing permittees and other interested
parties to determine whether the grazing activity could be adjusted to
avoid conflicts. This provision of the rule remains unchanged.
Comment: Grazing should only occur if the rangeland is in
excellent, not satisfactory, condition. Two reviewers noted that the
standard limiting grazing to rangelands lands in satisfactory
condition, while an improvement over existing management of the HCNRA,
was still inadequate under Section 7 of the HCNRA Act which requires,
among other things, that the HCNRA be administered in a manner
compatible with the ``conservation of scenic, wilderness, cultural,
scientific and other values contributing to the public benefit.''
According to this reviewer, that objective can be achieved only if the
rule is revised to accommodate grazing on rangeland which is at or
above 76% Potential Natural Vegetation (PNV), or 76% of the natural
vegetation community that would exist if the area remained ungrazed.
This is typically referred to by the Forest Service as ``excellent
condition.''
Response. The Forest Service disagrees with the reviewer's
proposition that the only way to ensure that the scenic, wilderness,
cultural, scientific and other values of the HCNRA are conserved is to
require rangelands to be in excellent condition prior to the
authorization of any grazing activities. The Forest Service believes
that authorizing grazing on rangelands in satisfactory condition is
fully consistent with each of the management objectives in Section 7 of
the HCNRA Act including the one referenced by this reviewer. The
satisfactory condition requirement is also in conformance with Section
13 of the HCNRA Act which recognizes ranching and grazing as
traditional and valid uses of the HCNRA. Arguably, limiting grazing to
rangelands deemed to be in excellent condition may be inconsistent with
this provision.
Finally, it bears mentioning that the satisfactory condition is a
minimum threshold which must be maintained throughout the duration of
the permit term which is normally ten years. As a result, assuming
rangelands are in satisfactory condition in the first year of the
permit, the grazing activity and the allotment must be managed in such
a way as to ensure that the rangelands do not fall below this minimum
threshold. If such a threat exists, it may necessitate adjustments in
livestock numbers, seasons of use, locations of grazing, and the
development of range improvements during the permit term. It may even
require the partial or total removal of livestock from the area if the
other management options are unavailing.
Thus, the rule which requires that rangelands be maintained in
satisfactory condition, at a minimum, throughout the term of the
authorized grazing activity, is consistent with Sections 7 and 13 of
the HCNRA Act. No additional changes to the proposed rule are warranted
based on this comment.
Comment: Grazing should be authorized not only on rangelands that
are currently in satisfactory condition, but also on rangelands that
are moving toward satisfactory condition. One reviewer noted that
limiting domestic livestock grazing only to rangelands in satisfactory
condition might be unnecessarily restrictive and might result in the
cessation of grazing even in those instances where the rangelands may
not be in satisfactory condition at the time the rule goes into effect,
but there have been demonstrable strides towards achieving that
condition.
Response: The Forest Service agrees. In many situations, livestock
grazing may be occurring on rangelands that might be deemed to be in
less than satisfactory condition. The status of some of these
rangelands may be due not so much to the absence of vegetation and
forage, but rather due to the type of vegetation and forage. In other
words, the presence of invader species of vegetation may result in an
allotment being classified as in unsatisfactory condition. In many of
these cases, the elimination of the invader species can only be
accomplished through burning or closely monitored livestock grazing.
The intent is not to allow continued grazing on allotments that
exhibit an unsatisfactory condition without an aggressively scheduled
effort to reach ``satisfactory'' in a reasonable period of time. The
comprehensive plan will identify goals, objectives, and schedules to
bring unsuitable lands into a healthy condition, defining
``satisfactory.''
Therefore, while satisfactory condition is an important benchmark
and one which the Forest Service hopes will be achieved on all
allotments in the HCNRA in the future, some flexibility should be built
into the rule to allow for the continuation of livestock grazing, even
on lands that may be in less than satisfactory condition, if that
activity results in the rangelands moving towards the satisfactory
condition benchmark. In order to determine whether the rangelands are
indeed moving towards satisfactory condition, the Forest Service will
evaluate the rangelands and the grazing against the specific standards
and guidelines related to this activity that are included in the forest
plan. Section 292.49(a) has been changed to provide this flexibility.
Comment: The Forest Service should immediately conduct studies to
determine the condition of rangelands in the HCNRA and all grazing
activities should be prohibited pending their completion. One reviewer
was comfortable with the Forest Service's use of satisfactory condition
as the threshold condition beyond which livestock grazing in the HCNRA
may be authorized. However, this reviewer was concerned that the Forest
Service did not possess all the necessary monitoring and other
information at this time to determine whether the rangelands were in
satisfactory or better condition. Therefore, this reviewer suggested
that all grazing be terminated pending the completion of studies
indicating the condition of all the rangelands in the HCNRA.
Response. The Forest Service is currently conducting analysis on
active allotments. Much of this activity is actually a re-analysis
updating information previously gathered. This information is
supplemented through range administration and monitoring which is
conducted on a regular basis. Each allotment has an annual operating
plan which is part of the permit and included the Forest Plan standards
and guidelines as well as any new standards developed for resource
management reasons. In addition to the range analysis and monitoring,
other resource areas such as fish, wildlife, botany, and silviculture
are also gathering resource data within the allotments. The data
collected from these studies adds to the cumulative picture of the
condition of resources within the allotment. Terminating all livestock
grazing activities pending the completion of these studies would result
in a harsh and unreasonable penalty for many permittees by halting
grazing activities on allotments which are in compliance with the terms
of the permits and the standards and guidelines of the forest plan.
The Forest Service is aware that if the standards in this section
are to be successful in protecting and conserving the HCNRA as well as
allowing traditional and valid grazing activities, the studies of range
condition must continue. To that end, the Forest Service will, subject
to the availability of appropriated funds, continue to take steps to
analyze range condition and trend in the HCNRA following the final
adoption of this rule. Priorities of the agency for range condition
studies will be those areas which appear to be in less than
satisfactory condition and those areas that are associated with permits
that are scheduled to expire in the near future. No changes to the
proposed rule are warranted based on this comment.
Comment: A definition of rangelands in ``satisfactory condition''
should be supplied in the rule. Four reviewers encouraged the Forest
Service to include a definition for ``satisfactory condition'' to
further delineate the federal lands in the HCNRA where grazing by
domestic livestock may occur. Two of the four reviewers offered
criteria that could be used in a definition of ``satisfactory
condition.''
Response: The Forest Service determines rangeland conditions based
on a professional review and assessment of forage and soil conditions,
among other things. The precise contours of what constitutes
``satisfactory condition'' may change over time as techniques for the
review and assessment of forage and soil conditions change, as new
information is discovered, or even as changes in societal norms and
understandings occur. Accordingly, the appropriate location for the
definition of satisfactory condition, like many other terms used in
this rule, is in the Comprehensive Management Plan which can more
readily address and respond to these potential future developments. Due
to their rigidity and relative difficulty to amend, regulations are
notoriously poor documents to set out definitions of terms which may
change over time. Accordingly, the definition of ``satisfactory
condition'' will appear in the Comprehensive Management Plan for the
HCNRA rather than these regulations. The agency intends to identify
goals, objectives, and standards pertaining to ``satisfactory
condition'' when the Comprehensive Management Plan is revised. The
public will have an opportunity to review and comment in the
development of the plans.
Comment: The rule should expressly exclude certain types of
rangelands as ``suitable'' for grazing. One reviewer recommended that
riparian areas, highly erodible lands, and threatened and endangered
species habitat should be expressly declared as not ``suitable'' for
grazing in the rule.
Response: The Forest Service believes that the types of land listed
by this reviewer may or may not be unsuitable for grazing depending on
a variety of factors including, but not limited to, the type and amount
of forage available, the impact of the grazing activity on the lands,
and the management regime under which the livestock grazing activity is
conducted. In many cases, grazing on riparian areas, highly erodible
lands, and land that is habitat for threatened and endangered species
may not negatively impact these areas. Therefore, a categorical
exclusion in this rule of these areas from rangelands deemed suitable
for livestock grazing would be inappropriate.
Comment: Recreation livestock should not be covered by the
standards in this section. One reviewer noted that the proposed rule
failed to distinguish recreation livestock used in conjunction with
recreational activities like hunting or trail riding from domestic
livestock which are authorized by a grazing permit. This reviewer
asserted that the standards of this rule should be applied only to
domestic livestock grazing activities and should exclude recreational
livestock grazing activities from its coverage.
Response. The proposed rule was not intended to exclude recreation
livestock from its coverage. It was intended to cover all domestic
livestock grazing activities occurring on the HCNRA, regardless of the
underlying purpose for that activity.
The reviewer fails to offer any additional information upon which
the Forest Service could discern a rational basis for distinguishing
recreation livestock from other forms of livestock on the HCNRA and
exempt them from the provisions of this rule. It may be that in a given
situation, the determination of whether an incompatibility exists may
differ between recreation livestock and other forms of livestock due to
the nature, amount, and location of grazing use. This would be a fact
dependent inquiry and would be made on a case-by-case basis. However,
once an incompatibility is found to exist between livestock grazing and
other listed values for which the HCNRA was established, it matters
little whether the grazing is in furtherance of a commercial ranching
operation or a commercial recreational enterprise. Under this rule,
that livestock grazing activity will have to be modified or abolished.
No additional modification of the proposed rule is warranted.
Comment: The standard requiring rangelands to be in satisfactory
condition before grazing may be authorized is insufficient for wild and
scenic river corridors where that activity must be shown to protect and
enhance the values for which the river was designated. Using the Forest
Service's definition of ``satisfactory condition'' in the Forest
Service Manual, one reviewer noted that this standard was adequate for
federal lands in the HCNRA outside designated wild and scenic river
corridors. Once on wild and scenic river corridor lands, however, this
reviewer explained that the satisfactory condition standard failed to
take into account Section 10 of the Wild and Scenic Rivers Act which
requires designated rivers to be administered to protect and enhance
the values which caused them to be added to the system. For the Snake
and Imnaha Rivers, these values included, among others, vegetation.
Merely maintaining the rangeland in satisfactory condition does not
equate to ``protecting and enhancing'' the vegetation of these rivers.
Response: The Forest Service disagrees for two reasons. The first
reason is that the Forest Service Manual definition of ``satisfactory
condition'' provided by this reviewer is sufficiently protective of
wild and scenic river values. The Forest Service Manual (FSM 2210.5)
defines ``satisfactory condition'' as ``[t]he condition in which * * *
forage species composition and production meets forest plan objectives
* * *''. The forest plan in this case is the Wallowa-Whitman National
Forest Land and Resource Management Plan (LRMP). Under Section 6(f) of
the National Forest Management Act, a LRMP is a forestwide document
that establishes management direction for all National Forest System
lands within its boundaries. As a forestwide document, it must, by
necessity, take into account and be consistent with specially
designated conservation system units that are within its boundaries.
For the Wallowa-Whitman National Forest, this would mean that the LRMP
must incorporate management direction for, among other areas, the
HCNRA, the Hells Canyon Wilderness, and the Snake, Rapid, and Imnaha
Wild and Scenic Rivers. This management direction for these ares may
not be inconsistent with the statutes under which these units were
established. In this case that would include the HCNRA Act, Wilderness
Act, and Wild and Scenic Rivers Act. Consequently, the Wallowa-Whitman
LRMP objectives for forage species composition and production take into
account the different conservation system units located within the
Forest. To that end, the objectives may, but need not be, different.
The second reason that the Forest Service considers this section to
be sufficient as applied to wild and scenic river corridor lands is
based on the identification of the traditional ranching use of this
area as one of the outstanding remarkable values for which the rivers
in the HCNRA were designated. For instance, the Environmental
Assessment for the Imnaha River Wild and Scenic River Management Plan
states

The Imnaha River canyon represents a living vestige typifying
the economic and social history of the region and the American West.
It is very difficult to describe the mystique which glorifies the
frontier cowboy west that is so important to the American psyche.
More specifically, and worthy of recognition -and protection, is the
fact that the Imnaha River setting is a unique remnant of Euro-
American adaptation of the mountainous inland Northwest. [This] * *
* is a value that meets the legislative intent of ``historical,
cultural, or other similar value,'' of the Wild and Scenic Rivers
Act and therefore is an Outstandingly Remarkable Value of the Imnaha
Wild and Scenic River.

(Imnaha River EA, App. C. pp. 12-14 (Jan. 1993)). Based on the fact
that both traditional ranching use and vegetation are outstandingly
remarkable values for which rivers in the HCNRA may have been
designated, the Forest Service considers the standards of this section
to be a reasonable attempt to reconcile conflicts that may arise in
administering the rivers to protect and enhance these values. No change
to the proposed rule is warranted based on this comment.
Comment: Concentrated livestock feeding areas should be closed in
the HCNRA. One reviewer felt that the rule should specifically deal
with confined animal feeding operations (CAFOs) that exist in the
HCNRA. There are two CAFOs in the HCNRA, each of which exceeds 100
acres. Cattle may occupy CAFOs anywhere from one to four months.
According to this reviewer, CAFOs negatively impact the nearby fish and
wildlife habitat, scenic, biological, recreation, and other values for
which the HCNRA was established. This reviewer suggested that another
standard should be added to this section but failed to note what it
should say. Based on the tenor of this reviewer's comments, the
proposed standard would prohibit all existing and proposed CAFOs within
the HCNRA. Another reviewer inquired as to whether and how these CAFOs
would be handled under this section.
Response. The Forest Service does not have any CAFOs on National
Forest System lands in the HCNRA. There are two allotments in the HCNRA
where animals can be fed during part of the grazing season authorized
by the grazing permit. On one allotment, this activity is for emergency
purposes only when winter weather conditions or animal health require
feeding for short periods of time. on the other allotment, cattle are
moved to a pasture and are fed hay during calving. After calving, the
cattle are moved to other pastures in the allotment in accordance with
the terms of the grazing permit. It should be noted that both of these
operations have been reviewed by the Environmental Protection Agency
and neither fits the definition of a CAFO.
If these grazing activities present a problem, the incompatibility
provisions of Sec. 292.48(b) would apply and require a review of the
operation to determine what modifications, if any, could be implemented
to avoid the incompatibility. As this section expressly noted, if the
incompatibility could not be avoided, the grazing activity would have
to terminate. The Forest Service does not consider the addition of
another standard addressing this situation to be necessary.
Comment: Domestic sheep grazing should be terminated in the HCNRA.
One reviewer noted that disease transmission from domestic to bighorn
sheep has resulted in the decimation of bighorn herds in the HCNRA.
Based on this impact, this reviewer recommended that the rule include a
standard which prohibits domestic sheep grazing in the HCNRA.
Response. As in the discussion concerning CAFOs above, this issue
could be easily addressed through Sec. 292.48(b) which requires the
modification of livestock grazing activity if it is incompatible with,
among other things, the maintenance of wildlife and/or their habitat in
the HCNRA. If the incompatibility persists even after the modification,
then the grazing activity would have to cease. Accordingly, a specific
standard prohibiting domestic sheep grazing in the HCNRA is
unnecessary.
It should also be noted that on June 10, 1994, the Forest
Supervisor of the Wallowa-Whitman National Forest signed a decision to
cancel all domestic sheep grazing permits in the HCNRA. This decision
was made after a thorough review of all the research on the
transmission of disease between domestic sheep and bighorn sheep. The
conclusion drawn from this review was that continuation of domestic
sheep grazing as that activity is currently conducted would likely
result in the death of bighorn sheep in the future. This decision is
fully consistent with the Act which recognized grazing as a traditional
and valid use and provided for its continuation only to the extent that
it did not impair the values, including protection of wildlife and
their habitat, for which the HCNRA was established.
Comment: The standard requiring that grazing permit include terms
and conditions to protect and conserve riparian areas should be more
specific. One reviewer noted that the standard directing that terms and
conditions be included in grazing permits provide for the protection
and conservation of riparian areas was ``another step in the right
direction but [] essentially meaningless * * *''. This reviewer thought
that specific criteria for grazing permits should be included as
standards in this rule including compliance with state Best Management
Practices, seasons of use, removal or exclusion of livestock, numbers
of animals to be grazed, buffer zones, and unsuitable locations.
Response. As with many of the other responses to comments made on
the proposed rule, the Forest Service does not consider a regulation to
be the appropriate document to include the level of detail sought by
this reviewer. The regulation embodies the standard to which the agency
must adhere. How the Forest Service meets this standard may vary and
some flexibility must be built into this process to accommodate it.
This is especially true in this situation where the variability of the
affected riparian areas and management practices that can be employed
at a given site may lead to a number of ways in which these areas can
be protected and conserved. In this way, the agency can tailor the
protection and conservation measures individually, recognizing that not
all measures may be appropriate in all situations.
Comment: Range improvement standard is inconsistent with the HCNRA
Act. One reviewer contended that the standard in Sec. 292.48(c)
concerning range improvements was contrary to the HCNRA Act's direction
that any livestock grazing occurring in the HCNRA must be compatible
with the protection of cultural and natural values for which the area
was established. Specifically, this section required that range
improvements be designed and located to have, to the extent
practicable, the minimal impact on scenic, cultural, fish and wildlife
and other values in the HCNRA. As an alternative, this reviewer
suggested that the standard should be modified to simply prohibit any
range improvement that has the potential to impact the ecological,
recreational, or cultural values of the HCNRA.
Response. As noted earlier in this discussion, Congress expressly
recognized in Section 13 of the HCNRA Act that ranching and grazing
were ``traditional and valid'' uses of the HCNRA. In keeping with this
recognition, the Forest Service has formulated standards for grazing
which will enable it to be continued in perpetuity provided that it is
compatible with the management objectives for the HCNRA as articulated
in Section 7 of the Act. In other words, this section provides for the
continuation of grazing unless it is incompatible with the scenic, fish
and wildlife, and other values for which the HCNRA was established. In
that case, as the proposed rule makes clear, the ranching or grazing
activity must yield.
One means by which incompatibilities between grazing and HCNRA
values can potentially be avoided is through the use of range
improvements. Range improvements may either be structural or
nonstructural in nature and are defined as

[A]ny activity or program on or relating to rangelands which is
designed to improve production of forage; change vegetative
composition; control patterns of use; provide water; stabilize soil
and water conditions; and provide habitat for livestock and
wildlife.

(Forest Service Manual 2240.5(8). One example of a range improvement is
a fence. Fences can be installed in order to limit access to important
riparian areas or to facilitate the rotation of livestock to different
parts of an allotment thereby avoiding overuse in any one area. Another
example of a range improvement are water tanks or troughs which can be
situated in such a way as to entice livestock away from natural water
sources like streams and ponds. Suffice it to say that it would be
extremely difficult to run a successful livestock operation without
using at least some range improvements.
This section of the rule provides that where range improvements are
a necessary component of a successful livestock operation, they will
have as little impact as possible on the scenic, fish and wildlife and
other values for which the HCNRA was established while still
accomplishing the objective of the improvement. The impact of range
improvements can be reduced through, among other things, the use of
special materials, locating the site of the improvement to blend in
with the natural topography, and constructing the improvement at
special times of the year.
The reviewer's suggestion which would bar all range improvements
based simply on their ``potential impact'' to the HCNRA resources is
unreasonable and would inevitably lead to the partial or complete
elimination of grazing in the HCNRA due to the exacerbation of
incompatibilities between grazing and the other resource values in the
HCNRA. No change to the rule has been made based on this reviewer's
comment.
Comment: Environmental analysis is necessary prior to the
authorization of livestock grazing on allotments that are currently
vacant as well as those where grazing activity is occurring. One
reviewer noted that the rule should include two express provisions
regarding the circumstances under which grazing may be authorized on an
allotment in the HCNRA. The first case dealt with allotments currently
being grazed. There, this reviewer explained that the rule should
authorize grazing only when there has been current environmental
analysis that considers range condition and the effects of past
livestock use of the allotment. The second case dealt with allotments
where no grazing is currently occurring. In this case, this reviewer
noted that the rule should include a standard requiring a new
environmental analysis prior to the authorization of livestock grazing
which would justify that activity on that allotment.
Response. Through the forest planning process, a schedule was
established for updating all of the allotment management plans on the
Wallowa-Whitman National Forest, including those in the HCNRA. It was
recognized that funding would not be available to update all of these
plans at once. Therefore, the allotments were prioritized for updating.
Allotments with the highest priority were those where evidence
suggested that some resource damage had occurred or was occurring.
Allotments are also required to be in compliance with the relevant
standards and guidelines in the forest plan. These standards and
guidelines, as well as any updates, are built into the annual operating
plans which become a term of the grazing permit.
Permits for vacant allotments are not issued until the range
analysis, NEPA documentation and the allotment management plan are
complete.

Regulatory Impact

This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. This rule will not have
an annual effect of $100 million or more on the economy nor adversely
affect productivity, competition, jobs, the environment, public health
or safety, nor State or local governments. This rule will not interfere
with an action taken or planned by another agency nor raise new legal
or policy issues. Finally, this action will not alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients of such programs. In short, little
or no effect on the National economy will result from this rule, since
it affects only public lands within the HCNRA. Accordingly, this final
rule is not subject to OMB review under Executive Order 12866.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by that Act. To
the extent that the rule imposes additional requirements on any small
entity, these requirements are the minimum necessary to protect the
public interest, are not administratively burdensome or costly to meet,
and are well within the capability of small entities to perform.

Takings Implication

This rule has been reviewed by the agency under Executive Order
12630 to determine whether its adoption presents the risk of a taking
which would require the payment of just compensation under the 5th
Amendment to the United States Constitution. Because this rule
primarily involves the administration of federal lands, neither the
adoption of this rule nor its implementation presents the risk of a
taking. Furthermore, where mining activities are concerned, the
prohibitions contained herein are subject to valid existing rights
which also insulates the government against the risk of an adverse
decision in a takings claim.

Executive Order 12778, Civil Justice Reform Act

This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Accordingly, (1) all state and local laws and
regulations that are in conflict with this rule or which impede its
full implementation are preempted; (2) no retroactive effect will be
given to this rule; and (3) it will not require administrative
proceedings before parties could file suit in court challenging its
provisions.

Environmental Impact

This rule was discussed as a proposed rule in the final
Environmental Impact Statement and Comprehensive Management Plan for
the Hells Canyon National Recreation Area, pages 155-158. The analysis
completed for the Comprehensive Management Plan was revalidated in
April 1990 with the signing of the Wallowa-Whitman National Forest Land
and Resource Management Plan (pages 1-2). Information pertaining to the
environmental analysis may be obtained by writing or calling the
persons or offices listed under ADDRESSES and FOR FURTHER INFORMATION
CONTACT.

Controlling Paperwork Burdens on the Public

As outlined in the proposed rule, prior written authorization will
be required under this rule for certain activities related to the
scientific research of paleontological resources in the HCNRA and the
use of motorized and non-motorized rivercraft use on the Snake and
Salmon Rivers in the HCNRA. The information that will need to be
submitted to the authorized officer represents a new information
requirement as defined in 5 CFR Part 1320, Controlling Paperwork
Burdens on the Public

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-17521. Public record. Not legal advice.