Paul Olson April 24, 2017 

606 Merrill St. 

Sitka, AK 99835 

(907)738-2400 

polsonlaw@gmail.com 

Beth Pendleton 

Regional Forester 

Forest Service, Alaska Region 

709 W. 9th St. 

Juneau, AK 99802-1622 

Submitted via e-mail to: objections-alaska-regional-office@fs.fed.us 

Dear Ms. Pendleton: 

This letter is a formal objection to the Shoreline II Outfitter/Guide Draft ROD, Final 

Environmental Impact Statement (FEIS) and Appendices pursuant to 36 C.F.R. § 218. [36 

C.F.R. § 218.8(d)(4)]. The Responsible Official is Tongass National Forest Supervisor Earl 

Stewart who will implement the project in the Admiralty Island National Monument, Hoonah 

Ranger District, Hoonah Ranger District and Sitka Ranger District. [Draft ROD at R-1]. The 

Responsible Official selected Alternative 2. [Draft ROD at R-1]. I submit this objection letter 

on behalf The Boat Company. The Boat Company submitted timely comments on the DEIS, 

[PR 793_0845], on April 25, 2016, and is eligible to file an objection under 36 C.F.R. § 218.5. 

I will be the lead objector pursuant to 36 C.F.R. § 218.8(d)(3). The legal notice for the project 

was published in the Ketchikan Daily News on March 10, 2017. [PR 793_1296]. This 

objection letter is timely filed via electronic mail on April 24, 2017. 

The Boat Company has been offering guided Remote Setting Nature Tours (RSNTs) in 

southeast Alaska since 1980 aboard its two vessels, the M/V Liseron and M/V Mist Cove. 

Both vessels have a 24 passenger capacity specifically for the purpose of meeting Forest Plan 

standards for recreation in Wilderness Use Areas. The vessels operate on a flexible itinerary 

between ports in order to better respond to varying weather conditions and specific client 

interests. The Boat Company enables guided visitors to experience 9 Wilderness Use Areas 

along its travel routes. Importantly, The Boat Company is a 501(c)(3) public charity that has 

a primary interest in wildlife and wilderness education and protection. Its vessels have small 

passenger capacities in order to provide for more opportunities to visit, learn about, and 

appreciate Tongass National Forest Wilderness areas. The Boat Company played a 

significant role in the designation of these areas, and participates in activities and programs 

aimed at enhancing the wilderness experience for all users. 

This background may help to explain The Boat Company’s objection to the Draft ROD 

which would limit operational flexibility in terms of access to Wilderness Use Areas along our 

cruise routes and divert RSNT operators into Large Group Areas. The Draft ROD assumes 

that the Selected Alternative would provide guided visitors with access to Wilderness in 

general, but the analysis ignores operational, weather, seasonal access and other factors that 

make access to specific Use Areas critical. It is these areas where the Selected Alternative 

proposed to cut guided visitor access relative to Shoreline I, the no action alternative. All of 

these areas have social encounter rates well below applicable Forest Plan standards. 
2

However, Shoreline II staff determined that the presence of marine traffic adjacent to 

these Wilderness Use Areas has caused a loss of Wilderness solitude. The Forest Service 

refused to provide reasonable access opportunities to the guided public based solely on this 

conclusion. Thus, the Selected Alternative reduces opportunities for guided visitors to 

experience high quality Wilderness recreation opportunities, and adversely impacts business 

stability and growth potential for tour operators such as The Boat Company and other 

similarly situated businesses that market and provide these high quality recreational 

experiences. 

The Boat Company submits that the analysis unlawfully fails to consider these 

impacts because it relies on a broad-based service day allocation increase to support its 

determination that the Selected Alternative provides for tourism businesses – even though 

most of those increases occur in seasons or areas that are irrelevant, or in Large Group 

Areas. The FEIS never considers or discloses adverse impacts to RSNT operators or guided 

visitors and is inadequate to support the draft ROD. The Boat Company submits that the 

Forest Service needs to start over with a revised or supplemental NEPA analysis to address 

these deficiencies. [40 C.F.R. § 1502.9]. 

Table of Contents 

I. Introduction .................................................................................................................. 5

II. Objection points regarding the socio-economic analysis .............................................................. 6

A. Introduction: description of the purpose and need for Shoreline II .............................................. 6

B. The economic analysis is misleading with respect to the purported service day allocation increases ..... 7

1. Statement referencing prior written comments and content of objection and explaining how decision 

and or analysis specific violate law or regulation .......................................................................... 7

2. Statement of supporting reasons ...................................................................................... 8

3. Conclusion .............................................................................................................. 14

C. Objection Point 2: The FEIS failed to consider visitor demand for high quality Wilderness recreation 

experiences .......................................................................................................................... 15

1. Statement referencing prior written comments and content of objection and xplaining how decision 

and or analysis specific violate law or regulation ........................................................................ 15

2. Statement of supporting reasons .................................................................................... 15

3. Conclusion and suggested resolution .............................................................................. 18

D. Objection Point 3: The FEIS fails to assess adverse impacts to the visitor industry by excluding small 

passenger capacity vessels from the analysis ................................................................................. 19

1. Statement referencing prior written comments and content of objection and xplaining how decision 

and or analysis specific violate law or regulation ........................................................................ 19

2. Statement of Supporting Reasons .................................................................................. 19

3. Conclusion .............................................................................................................. 20

E. Objection Point 5: The FEIS fails to use the best available data to assess growth .......................... 21

1. Statement referencing prior written comments and content of objection and explaining how decision 

and or analysis specific violate law or regulation ........................................................................ 21
3

2. Statement of supporting reasons .................................................................................... 21

3. Conclusion and suggested resolution .............................................................................. 25

III. NEPA Problems: Range of Alternatives and Significant Issues .................................................. 25

A. Objection Point 6: The Draft ROD is arbitrary because it relies on an FEIS that violated NEPA by 

presenting an unreasonable range of alternatives ............................................................................ 25

1. Statement Referencing Prior Written Comments and Content of Objection and Explaining How 

Decision and/or Analysis Specifically Violate Law or Regulation ................................................... 25

2. Statement of supporting reasons .................................................................................... 27

3. Conclusion and suggested resolution .............................................................................. 35

B. Objection Point 7: The Draft ROD and FEIS violated NEPA by refusing to analyze or consider 

wilderness solitude zoning ....................................................................................................... 35

1. Statement Referencing Prior Written Comments and Content of Objection and Explaining How 

Decision and/or Analysis Specifically Violate Law or Regulation ................................................... 36

2. Statement of supporting reasons .................................................................................... 38

3. Conclusion and suggested resolution .............................................................................. 40

C. Objection Point 8: The FEIS ignores the needs of guided visitors ............................................. 41

1. Statement referencing prior written comments and content of objection and explaining how decision 

and or analysis specific violate law or regulation ........................................................................ 41

2. Statement of supporting reasons .................................................................................... 42

3. Conclusion and suggested resolution .............................................................................. 44

D. Objection Point 9: The handling of the shoulder season is overly restrictive ............................... 44

1. Statement referencing prior written comments and content of objection and xplaining how decision 

and or analysis specific violate law or regulation ........................................................................ 44

2. Statement of supporting reasons .................................................................................... 44

3. Conclusion and suggested resolution .............................................................................. 46

IV. Objection Points re: Adaptive Management and Monitoring ...................................................... 47

A. Objection Point 10: The Draft ROD is arbitrary because it relies on an FEIS that violated NEPA and 

the APA by asserting that adaptive management will benefit outfitter/guides......................................... 47

1. Statement referencing prior comments and explaining how decision violates law, regulation or policy

 ...................................................................................................................................... 47

2. Statement of supporting reasons .................................................................................... 48

3. Conclusion and suggested resolution .............................................................................. 51

B. Objection Point 11: The Draft ROD is arbitrary because the FEIS fails to explain how the monitoring 

program will collect statistically reliable data ................................................................................ 51

1. Statement referencing prior written comments and content of objection and explaining how decision 

and or analysis specific violate law or regulation ........................................................................ 51

2. Statement of supporting reasons .................................................................................... 53

3. Conclusion and suggested resolution .............................................................................. 56

C. Objection Point 12: The FEIS fails to evaluate the feasibility and cost of adaptive management ....... 57
4

1. Statement referencing prior comments and explaining how decision violates law, regulation or policy

 ...................................................................................................................................... 57

2. Statement of supporting reasons .................................................................................... 58

3. Conclusion and suggested resolution .............................................................................. 60

D. Objection Point 13: Measurability and feasibility of adaptive management for conflicts ................ 60

1. Statement referencing prior written comments and content of objection and explaining how decision 

and or analysis specific violate law or regulation ........................................................................ 60

2. Statement of supporting reasons .................................................................................... 60

3. Conclusion and suggested resolution .............................................................................. 61

V. Objection points related to the analysis of Wilderness impacts .................................................... 61

A. Introduction: description of the saltwater encounter standard and how it inflates the number of social 

encounters for Wilderness Users ................................................................................................ 61

B. Objection Point 14: The Draft ROD and FEIS arbitrarily reverse agency policy and practice for 

measuring encounters without adequately explaining the basis for change ............................................ 63

1. Statement referencing prior comments and explaining how violates law, statute or regulation ....... 63

2. Statement of supporting reasons .................................................................................... 65

3. Conclusion and suggested resolution .............................................................................. 69

C. Objection Point 15: The FEIS fails to consider relevant factors such as historic marine traffic or make a 

rational connection between off-Wilderness non-social encounters and in-wilderness guided public use ....... 70

1. Statement referencing prior comments and explaining how violates law, statute or regulation ....... 70

2. Statement of supporting reasons .................................................................................... 72

3. Conclusion and suggested resolution .............................................................................. 77

D. Objection Point 16: The FEIS uses an arbitrary choice of scale to measure solitude opportunities .... 77

1. Statement referencing prior comments ............................................................................ 77

2. Statement of supporting reasons .................................................................................... 78

3. Conclusion and suggested resolution .............................................................................. 80

E. Objection Point 17: The Forest Service’s data and conclusions show a need to update the ROS 

descriptions .......................................................................................................................... 80

1. Statement referencing prior comments and how decision and/or analysis violate law, regulation or 

policy .............................................................................................................................. 80

2. Statement of supporting reasons .................................................................................... 81

3. Conclusion and suggested resolution .............................................................................. 82

F. Objection Point 18: The FEIS arbitrarily fails to distinguish between solitude opportunities and 

primitive and unconfined recreation ........................................................................................... 82

1. Statement Referencing Prior Written Comments and Content of Objection and Explaining How 

Decision and/or Analysis Specifically Violate Law or Regulation ................................................... 83

2. Statement of supporting reasons .................................................................................... 84

3. Conclusion and suggested resolution .............................................................................. 89

VI. Miscellaneous Objection Points ......................................................................................... 90
5

A. Objection Point 19: The draft ROD and FEIS are arbitrary because they rely on a visitor capacity 

analysis that overestimate impacts .............................................................................................. 90

1. Statement Referencing Prior Written Comments and Content of Objection and Explaining How 

Decision and/or Analysis Specifically Violate Law or Regulation ................................................... 90

2. Statement of supporting reasons .................................................................................... 90

3. Conclusion and suggested resolution .............................................................................. 91

B. Objection Point 20: The Forest Service needs to supplement the NEPA analysis with an evaluation of 

the cumulative impacts of the State Forest Management Act ............................................................. 91

1. Statement referencing prior comments and explaining how decision and/or analysis violate law, 

regulation or policy ............................................................................................................. 91

2. Statement of supporting reasons .................................................................................... 92

3. Conclusion and suggested resolution .............................................................................. 93

VII. Conclusion .................................................................................................................. 93

I. Introduction 

This objection begins by explaining how the socio-economic analysis failed to consider 

impacts to small cruise vessels (hereinafter “SCV”)1 with smaller passenger capacities and 

shows how the FEIS relies on misleading economic assumptions. The Boat Company 

understands that recreation management must strive to seek a balance between appropriate 

levels of outfitter/guide use and unguided use and in no way wishes to see recreational 

resources diminished by over-use. But the Selected Alternative goes too far in restricting 

guided visitor access to specific Wilderness Use Areas along SCV travel routes. Section III. 

identifies specific NEPA problems, including the failure to consider a reasonable range of 

alternatives and other means such as wilderness zoning that more effectively achieve the 

balance between guided and unguided uses.

Section IV provides The Boat Company’s comments on the proposal to integrate an 

Adaptive Management Framework into the plan. One primary concern pertains to feasibility 

and the costs and availability of staff resources. Also, the Adaptive Management Framework 

could result in closures of Use Areas to guided public use caused by either inadequate 

monitoring effort or by choosing indicators that factor in saltwater encounters adjacent to 

Wilderness. 

Finally, the analysis in the Wilderness resource chapter relies on non-Wilderness 

encounters caused by marine traffic outside of Wilderness areas to determine that solitude 

opportunities are lacking in Shoreline II Wilderness. The analysis misinterprets the 

Wilderness Act’s “outstanding opportunities” clause, fails to link guided public use to the 

perceived problem, develops unreasonable indicators, and fails to disclose that the potential 

impacts of the Shoreline II plan approach of managing for solitude in and outside of 

 

1 The State of Alaska’s Division of Economic Development defines an SCV as “a small overnight 

commercial passenger vessel that carries less than 250 passengers” including yachts and motor 

vessels that carry less than 20 passengers and offer regularly scheduled itineraries. See PR 793_0399 

at 6 & n. 2. 
6

Wilderness would result in substantial reductions in guided public use of the northern 

Tongass National Forest, harming regional economies. 

II. Objection points regarding the socio-economic analysis 

Providing opportunities for the visitor industry is the most significant way through 

which Shoreline II ranger districts can best meet the project’s need to provide diverse 

opportunities for public lands to contribute to local and regional economies. The visitor 

industry is one of the top two industries in southeast Alaska in terms of jobs and payroll. [PR 

793_0150 at 1 (McDowell Group 2012)(identifying over 10,000 jobs and $360 million in 

payroll)]. In 2015, the visitor industry in southeast Alaska generated $622 million in direct 

spending, with a total economic impact of $1.2 billion. [PR 793_1319 at 7 (Southeast 

Conference 2016)]. Another 2014 study found that economic activity associated with wildlife 

hunting and viewing in just one year generated 2,463 jobs in southeast Alaska, $138 million 

in labor income and $360 million in total economic output. [PR 793_0149 at 24 

(ECONorthwest 2014)]. 

RSNT providers are the largest sector of the visitor industry affected by Shoreline II. 

The FEIS reports that RSNT tours comprise 63% of Shoreline II activity, averaging 10,114 

service days per year. [FEIS at 3-56]. Updated actual use data in the record show an even 

higher ratio, with RSNT providers comprising two-thirds of all activity and averaging 11,514 

service days per year from 2011-2015. [PR 793_1265]. The SCV fleet is an important piece of 

this sector – its operations have “the potential to yield significant benefit because ships visit 

communities of all sizes.” [PR 793_0183 at 5 (Grewe 2015)]. One SCV alone can generate 

$1.3 million in visitor spending in southeast Alaska communities. [PR 793_0399 at 10-11 

(Alaska Division of Economic Development 2014)]. 

A. Introduction: description of the purpose and need for Shoreline II 

The purposes of the Shoreline II draft ROD are to manage guided visitor access to 

recreation opportunities by determining service day allocations in a way that balances 

commercial and non-commercial recreational opportunities, provides and maintains high 

quality recreation experiences and avoids harm to forest resources. [FEIS at 1-6]. These 

purposes reflect the stated need for Shoreline II - to meet programmatic goals for recreation 

and tourism and to support local and regional economies. [Id.]. The goals and objectives 

include providing: (1) “diverse opportunities for resource uses that contribute to local and 

regional economies;” (2) “a range of recreation opportunities consistent with public demand, 

emphasizing locally popular recreation places and those important to the tourism industry” 

and (3) public access to and use of Wilderness. [Id.]. 

The FEIS identified increased demand for outfitter/guide services due to expanded 

visitor numbers and services and recognizes that “[t]here is a need to replace the 2004 

Shoreline Outfitter/Guide ROD to better align with current market demand for nonmotorized outfitter guide services.” [Id.]. Thus, one of the identified significant issues was to 

address effects to economic opportunities by ensuring an adequate number of service days to 

respond to industry growth. [Draft ROD at R-12]. The Responsible Official assumed that an 

overall increase in the number of service days would provide a reasonable balance of 

economic opportunity. [Id.]. However, the draft ROD relies on an FEIS that measured 

impacts to guided visitors and outfitter/guides broadly, and ignored important factors such 

as market demand for high quality Wilderness experiences and accessibility along SCV travel 

routes. Indeed, the economic analysis entirely omitted The Boat Company and numerous 

SCVs with small passenger capacities from its assessment of the visitor industry. 
7

B. The economic analysis is misleading with respect to the purported service day allocation 

increases 

The no-action alternative – Shoreline I - provides The Boat Company with more 

business stability despite the Responsible Official’s assertion that the new plan provides a 

“69%” increase in service day allocations. Why would a tour operator that has consistently 

requested growth opportunities throughout the process prefer the Shoreline I service day 

allocations over a “69%” increase? As explained in the following discussion, the Draft ROD is 

arbitrary because it relies on service day increases that are irrelevant to an important 

segment of RSNT SCV operators. The 2004 Shoreline ROD provides for more growth and 

stability for objector and other similarly situated operators that provide services to meet 

market demand for high quality recreation experiences. RSNT SCV operators rely on specific 

features along their cruise routes – particularly larger bays with protected anchorages and 

shoreline access, scenic views such as fjords and glaciers, and trails. [Draft ROD Appx. 1 at 

33 – 47, 89, 95, 98]. Conversely, Use Areas on the outer coast, inside areas that lack 

protected anchorages or areas that require lengthy travel times do not receive much use from 

RSNT SCV operators. [See e.g. id. at 53, 67, 104, 113, 139, 145]. 

1. Statement referencing prior written comments and content of objection and explaining 

how decision and or analysis specific violate law or regulation 

The FEIS identified effects to economic opportunities as a significant issue. [FEIS at 

1-16]. The analysis measured economic effects in terms of total service day allocations and 

broad visitor industry trends. [Id.]. The draft ROD asserts that the Selected Alternative 

addresses visitor industry needs because it increases guided visitor service day allocations by 

32,856 service days – purportedly a 69 percent increase relative to Shoreline I. [Draft ROD at 

R-11-R-12]. But the Draft ROD arbitrarily ignores the spatial and temporal distribution of 

guided visitor activities. One third of the service day allocation “increases” occur in the 

winter and fall and are meaningless. The summer season service day allocation increases 

occur in a small number of Use Areas with Large Group Areas that fail to provide the 

experience marketed to and desired by guided visitors. 

The Boat Company’s DEIS comments explained that the NEPA analysis failed to 

adequately address economic effects to the visitor industry, such as the industry need to 

market and access specific types of recreation experiences in order to maintain current 

industry stability and provide opportunities for growth. [PR 793_0845 at 3, 4, 8, 18]. The 

FEIS omitted important information such as cruise travel routes and visitor demand for high 

quality wilderness recreation opportunities. The Boat Company provided detailed cruise 

itinerary and marketing information identifying specific Wilderness Use Areas and features 

important both for visitor satisfaction and operational feasibility. 

NEPA requires federal agencies to disclose sufficient information as need to ensure 

“informed decisionmaking and informed public participation.” [40 C.F.R. § 1502.1; State of 

Cal. v. Block, 690 F.2d 753, 767 (9th Cir. 1982). An EIS serves two functions: (1) to ensure 

that agencies take a hard look at the environmental impacts of proposed projects and (2) to 

ensure the availability of information to the public so as to enable public participation in the 

decisionmaking process. [Robertson v. Methow Valley Citizens Council, 490 U.S. 332. 349 

(1989)]. In particular, an EIS cannot serve this second essential function if it reflects 

misleading economic assumptions “by skewing the public’s evaluation of a project.” [Hughes 

River Watershed Conservancy v. Glickman, 81 F.3d, 437, 446 (4th Cir. 1996)]. NEPA thus 

requires that agency cost-benefit analyses “at least indicate those considerations, including 

factors not related to environmental quality, which are likely to be relevant and important to 

a decision.” [40 C.F.R. § 1502.23; see also id., § 1502.24 (“[a]gencies shall insure the 
8

professional integrity ... of the discussions and analyses in environmental impact 

statements)]. 

The failure of the FEIS to analyze relevant information subverted NEPA’s purpose of 

ensuring the availability of an “accurate assessment of the information” necessary to evaluate 

project impacts. [Natural Resources Defense Council v. U.S. Forest Service, 421 F.3d 797, 

812)(9th Cir. 2005]. Further, the Administrative Procedure Act (APA) requires that an agency 

“examine the relevant data and articulate a satisfactory explanation for its action, including a 

“rational connection between the facts found and the choice made.” [Motor Vehicle 

Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)]. An 

agency action is “arbitrary and capricious if the agency ... entirely failed to consider an 

important aspect of the problem, offered an explanation for its decision that runs counter to 

the evidence before the agency, or is so implausible that it could not be ascribed to a 

difference in view or the product of agency expertise.” [Id.]. 

The Responsible Official proposes the implausible as an “economic opportunity” – that 

RSNT SCV operators should avail themselves of service days on the rough outer coast, in 

winter, or in Large Group Areas. The FEIS thus overinflates the benefits of the plan, and 

ignores the adverse economic effects on outfitter/guide businesses by relying on a broad 

scale analysis that arbitrarily ignores market trends, the interests of guided visitors and the 

operational logistics of SCV tour operators. The Selected Alternative purposefully forces RSNT 

SCVs away from Wilderness Use Areas, but unlawfully fails to disclose adverse effects to 

RSNT SCV operators and the guided public based on the flawed assumption that “guided 

visitor access in wilderness is not restricted.” [FEIS, Appx. E at E-9]. 

2. Statement of supporting reasons 

a. The service day increases in the Selected Alternative are misleading and 

allocated to Large Group Areas or to irrelevant seasons and areas 

The Draft ROD suggests that the Forest Service addresses tourism industry growth 

with an increase of 32,856 service days above the 47,449 service days authorized in 

Shoreline I, or total of 80,305 service days for all seasons. [Draft ROD at R-11]. The 32,856 

service day figure is misleading because the purported increases ignore the spatial and 

temporal distribution of RSNT SCV operators. 

For example, from a temporal perspective, the Draft ROD cuts days from the late 

spring season when SCVs operate and adds guided visitor service days to the fall, winter and 

early spring seasons. It is implausible to suggest that these service days are meaningful. 

The FEIS acknowledges that RSNT activities “typically occur mid-May through late 

September. [FEIS at 56; see also Exhs. 1 - 9]. The record shows extensive Remote Setting 

Nature Tour SCV activity in May (the late spring) – but the Selected Alternative would 

substantially cut the amount of available service days, especially on Admiralty Island. [PR 

793_1288 at 41, 43, 45, 78, 82, 84, 107, 158, 160, 164, 166, 191-206]. The Recreation 

Resource Report indicates that the purpose of reducing late spring service days is to “shift 

use to early spring.” [PR 793_1288 at 38, 158, 160, 164, 166]. 

In total, the FEIS adds in 11,713 guided visitor service days over the fall, winter and 

early spring relative to Shoreline I – more than ten times the amount of actual use. [FEIS at 

2-24 – 2-26, 2-35 – 2-41]. These additional service days are irrelevant to economic growth 

and stability for RSNT SCV operators. The FEIS thus misrepresents the actual increase in 

guided visitor service days and conceals the decrease in service day allocations for 

Wilderness Use Areas that RSNT SCV operators would use during the late spring and 

summer season. 
9

 From a spatial perspective, the Forest Service cuts guided visitor service days in the 

summer season for important Wilderness Use Areas in order “to shift some outfitter/guide 

recreation use away during the primary use season.” [PR 793_1288 at 162, 164, 197, 199, 

202-203 (emphasis added)]. The agency instead would direct The Boat Company and other 

Wilderness SCV operators into Large Group Areas. [Id. at 158, 186]. Thus, the remainder of 

the purported guided visitor service day increase for the primary use season occurs primarily 

in 11 heavily used Use Areas – a total increase of 29,650 days. [FEIS at 2-31-2-34]. Three of 

those use areas (04-02A (Redoubt); 04-02C (Necker) 04-03 (Sitka)) are near Sitka and on the 

outer coast and used primarily by other operators working out of Sitka, often for day trips, 

freshwater fishing or camping rather than by RSNT SCV operators. [Draft ROD, Appx. 1 at 

56, 64, 67]. Trails, protected anchorages and shoreline access in the five Use Areas with 

increased service day allocations along The Boat Company’s travel route correspond with 

Large Group Areas. [Id. Appx. 2 at 14, 22, 30, 35, 41-42, 50, 56, 60, 62, 67, 72, 86]. The 

other Use Areas with substantial guided visitor service increases similarly occur in Large 

Group Areas. [Id. at 18, 24, 28, 58]. 

Thus, the draft ROD adds in 11,723 service days that are irrelevant, 29,650 service 

days for Large Group Areas and local Sitka operators, or a total of 41,323 service days 

distributed in a different way, temporally and spatially, than Shoreline I. Since this is a 

larger number of service days than the purported 32,856 service day increase, there is a loss 

... somewhere. This loss occurs in Wilderness Use Areas used by and accessible to RSNT 

SCV operators during seasons of actual use. 

b. The Selected Alternative reduces guided visitor service days in Wilderness Use 

Areas along RSNT small cruise vessel travel routes 

The record shows that the Forest Service recognized that “[m]ost of our use areas 

address growth except for wilderness areas” and “[t]here will be a big disparity between 

wilderness and non-wilderness averages.” [PR 793_0017 at 2]. This “big disparity” means 

that the Selected Alternative includes restrictions and limitations that will have undisclosed 

adverse economic impacts on RSNT SCV operators. The Draft ROD acknowledges that the 

allocation is lower than Shoreline I. [Draft ROD at R-12]. But now the FEIS insists that the 

“alternatives offer increased opportunities across wilderness areas” and none of them restrict 

guided visitor access. [Appx. E at E-48]. The draft ROD similarly insists that the Forest 

Service allows for increased use relative to average summer actual use on Admiralty Island, 

South Baranof Wilderness and Tracy Arm-Ford’s Terror Wilderness. [Draft ROD at R-11].2 

Based on these statements, the FEIS arbitrarily fails to consider whether the Selected 

Alternative will adversely impact RSNT SCV operators. 

The assertion of continued access to Wilderness Use Areas relies on a selective and 

flawed discussion of use data and seasonal service day allocations across multiple Use Areas 

– whether accessible or not - that hides the ball with respect to adverse impacts on RSNT 

SCV operators. The Selective Alternative provides slightly over 6,000 service days to guided 

visitors in Wilderness for the summer season, or just more than ten percent of the total 

guided public service day allocation. [FEIS at 2-31-2-34]. But this figure includes a surplus 

of nearly 1,500 service days for the five outer coast Wilderness Use Areas that are 

inaccessible for and unused by most small RSNT SCV operators due to distance and 

prevailing ocean conditions. [Id. (Use Areas 04-02B (Whale Bay) and West-Chicagof-Yakobi 

Wilderness Use Areas 04-14, 04-15B, 04-15C, 04-15D)]. It also includes 1,155 service days 

 

2 The actual use comparison is unreasonable for several reasons. The first is operational – 

outfitter/guides need more service than they actually use to provide the flexibility to adjust to weather 

conditions, or disperse from other operators. Also, the Forest Service already caps use for these areas 

and does not allow for additional service day requests. 
10

in northern Admiralty National Monument Use Areas that do not provide the features or 

access conditions needed by RSNT SCV operators. [Id. (Use Areas 04-08, 04-09A, 04-10A, 

04-10B)]. 

And the service day allocations are much lower than suggested in the Draft ROD due 

to restrictions during the late spring season. The analysis implausibly excluded those 

restrictions when it estimated that Shoreline II allows for increased guided visitor access to 

key Wilderness Use Areas and thus provides business stability for operators who provide 

those services. For example, the Responsible Official insists that use of Juneau Ranger 

Districts could “increase by half” for the Tracy-Arm – Fords Terror Wilderness. [Draft ROD at 

R-11]. The Responsible Official reached this conclusion based on a single metric - a 

comparison to historical actual use data during only the summer season. In other words, 

there are numerous ways to interpret the data and effect of the service day allocations, and 

the FEIS selectively and arbitrarily picked seasons and data that mask adverse impacts to 

RSNT SCV vessel operators and the guided public. 

The Boat Company’s two vessels alternately transit between Sitka and Juneau. [See, 

e.g. Exhs. 1 – 9]. A trip departing Sitka on the Mist Cove begins with a day of fishing and 

hiking in Salisbury Sound, followed by a day utilizing one of the Use Areas in Peril Straits, 

such as Saook Bay or the Lake Eva Trail. The Boat Company vessels enter Chatham Strait 

on the third day for activities in northeast Baranof Island Use Areas. The last two days of the 

trip transit Frederick Sound and Stephens Passage, with stops in Admiralty National 

Monument or Juneau Ranger District Use Areas. As The Boat Company’s actual use reports 

show, there is considerable variability from trip to trip due to weather conditions, client 

preferences, and other factors. 

The Boat Company has used 9 Wilderness Use Areas over the past four years. In 

particular, the Pybus Bay, Southern Baranof, and three Juneau Ranger District Use Areas 

offer scenic attractions, desired hiking, fishing or wildlife viewing experiences, and provide 

protected anchorages in large bays accessible along The Boat Company’s travel routes. The 

following table displays cuts in guided visitor service days during the late spring and summer 

season for Wilderness Use Areas utilized by The Boat Company and other RSNT small cruise 

vessel operators. Importantly, the three most important Use Areas (01-05F Endicott Arm, 

04-01A Gut Bay, and 04-06A Pybus Bay) that have service day increases across both 

seasons fall below the highest actual use. Overall, the Selected Alternative clearly reduced 

guided public access relative to Shoreline I. 

The Boat Company Use Areas: Late Spring and Summer Allocations 

Use Area Shoreline 

I/Highest Actual Use 

Alternat

ive 2 

Change in service days 

from Shoreline I 

01-05D Tracy Arm 239/85 210 -29 

01-05E Ford’s Terror 249/194 160 -89 

01-05F Endicott Arm 558/585 575 +17 

04-01A Gut Bay 400/482 475 +75 

04-05A SW Admiralty 669/369 545 -124 

04-06A Pybus Bay 712/746 725 +13 

04-06B Eliza Harbor 346/227 370 +24 
11

04-07A Gambier Bay 472/204 310 -162 

04-07B CrossAdmiralty Canoe Route 519/142 555 +36 

 -182 

i. The Selected Alternative reduces access to Juneau and Sitka Ranger District 

Wilderness Use Areas during the late spring and summer primary use season 

The Boat Company and other RSNT SCV operators use Juneau Ranger District 

Wilderness Use Areas during the late spring and summer seasons. The final Recreation 

Resource Report notes that Juneau Ranger District Use Areas “receive[] very low to low levels 

of outfitter/guide use overall” with the exceptions of the Wilderness Use Areas (01-05E (Fords 

Terror) and 01-05F (Endicott Arm)) and the Williams Cove Large Group Area. [PR 793_1288 

at 16]. Encounters remain well below Forest Plan thresholds during all seasons. [Id. at 39 – 

45]. Access to Use Areas 01-05D, 01-05E and 01-05F is critical both because of the unique 

features of those areas and their location relative to Juneau where The Boat Company and 

other SCV operators begin or conclude their trips. 

Nearly all of the RSNT use in these use areas occurs during the late spring and 

summer. [PR 793_1288 at 41 – 43]. Shoreline I provided 1,046 service days during the late 

spring and summer season for Use Areas 01-05D, 01-05E and 01-05F. [FEIS at 2-5]. The 

Responsible Official’s Selected Alternative provides for 945 days during those seasons. [FEIS 

at 2-7]. The Selected Alternative cuts service days by 35, 38 and 62 percent during the late 

spring season, cutting off a significant portion of the cruise season. [PR 793_1288 at 162 – 

166]. 

Then the Selected Alternative cuts service days during the summer season in order to 

shift guided visitors on RSNT SCV tours to adjacent Large Group Areas which have limited 

access and poor anchorages. [Id.; see also 158-160 (increasing available service days in Use 

Areas 01-05B (Port Snettisham) and 01-05C (Windham)); PR 793_0021]. In particular, the 

Selected Alternative allows for 370 service days in the Fords Terror and Tracy Arm Use Areas 

during the late spring and summer season – 118 days less than Shoreline I, or a 25% 

reduction. This is a cut – even though outfitter/guides would only be present for roughly one 

out of three days under the highest use alternative. [PR 793_1288 at 162, 164]. There is a 

17 service day ( or 3 percent) increase for Use Area 01-05F, Endicott Arm, relative to 

Shoreline I – but there are 32 outfitter/guides that use the area and the overall service day 

allocation is less than the highest actual use. [PR 793_1288 at 42]. The purported increase in 

guided public access to these areas occurs in the fall, when RSNT SCV operators have shut 

down for the season. [PR 793_1288 at 162 – 166]. 

Similarly, the Gut Bay Use Area (04-01A) provides a critical access point to desired 

visitor experiences. RSNT SCVs are the primary guided visitor use and operate beginning in 

mid-May through September. [PR 793_1288 at 45]. That stretch of the eastern Baranof 

Island has “stretches of inaccessible coastline adjacent to Chatham Strait with numerous 

small bays and coves.” [Id. at 44]. Four bays in the Gut Bay Use area provide reliable 

anchorages and shoreline access. [Id.]. And while there is a 75 service day increase in late 

spring and summer over Shoreline I, the service day allocation falls below the highest actual 

annual use and thus provides no growth opportunity or flexibility for RSNT small cruise 
12

vessel operators.3 Again, the Selected Alternative would direct guided Wilderness visitors 

instead to more crowded Use Areas on northern Baranof Island where it provides for service 

day increases. [Id. at 17, 107, 186]. 

ii. The Selected Alternative reduces access to Admiralty National Monument Use 

Areas along RSNT small cruise vessel travel routes 

The Recreation Resource Report states that Admiralty Island “receives very low to 

levels of use overall” with a few exceptions such as specific locations in Use Area 04-06A 

(Pybus Bay). [PR 793_1288 at 96]. Eastern Admiralty Island Use Areas also combine 

features that are desirable to guided visitors with the protected anchorages and distance 

factors that are logistically feasible for small cruise tours inbound to or outbound from 

Juneau. RSNT SCV operators begin offering services in May, with peaks in June, July and 

August. [PR 793_1288 at 78, 80, 82, 84]. The FEIS insists that the Selected Alternative 

would allow for increased use in Admiralty National Monument Use Areas through a 

comparison to actual use limited to the summer season. [FEIS, Appx. E at E-9]. This 

comparison arbitrarily excludes the late spring season, and relies on low levels of RSNT SCV 

use of northern Admiralty Use Areas to estimate the service day “surplus.” 

The Boat Company’s most frequent area of use is Pybus Bay (Use Area 04-06A) with 

additional periodic or regular use of Areas 04-05A (Southwest Admiralty), 04-06B (Eliza 

Harbor), 04-07A (Gambier Bay) and Use Area 04-07B (Cross-Admiralty Canoe Route). Many 

Admiralty Island Use Areas do not provide critical features needed by RSNT SCV operators 

such as sheltered anchorages with shoreline access so that hunting and freshwater fishing 

are the primary use. [PR 793-1288 at 79, 87, 94-95, 202-203]. Western and northern 

Admiralty Use Areas in particular receive little use from RSNT SCV operators. Thus, even if 

there was a service day surplus relative to actual use, The Boat Company would be unable to 

avail itself of those opportunities. 

While Alternative 2 provides for a slight service day increase for Pybus Bay, the total 

service day allocation is lower than highest actual annual use. Pybus Bay is the most 

important use area, both because of its location relative to other RSNT SCV destinations and 

because it is one of the largest bays in the area, with numerous protected anchorages. [PR 

793_1288 at 77]. Twenty-five outfitter/guides use this area, and the Forest Service may plan 

additional restrictions, increasing the importance of adjacent Use Areas. [Id. (identifying 

plans to use a prospectus to manage this Use Area)]. 

 And the Selected Alternative would reduce access to other critical adjacent RSNT SCV 

Use Areas as well. The Boat Company’s second most utilized Use Area is the CrossAdmiralty Canoe Route, which provides visitors with hiking opportunities along its main 

attraction, the Alexander Lake Trail. [PR 793_1288 at 85]. But the Selected Alternative cuts 

summer season service days by 20 percent from Shoreline in order to shift use away during 

the summer season – even though the Canoe Route experiences light use and provides 

solitude opportunities. [PR 793_1288 at 83, 199]. The Boat Company also utilizes the 

Gambier Bay and Eliza Harbor Use Areas. The Selected Alternative cuts service day 

allocations for Gambier for both seasons relative to Shoreline I, cuts Eliza Harbor late spring 

service day allocations substantially, and then provides a mere 15 service day increase for 

Eliza Harbor during the summer season – perhaps one day of access for one RSNT SCV 

operator. [Id. at 195, 197]. 

Indeed, across all Admiralty Island Use Area, the Selected Alternative reduces the 

service day allocation in the summer season by 2,155 days relative to Shoreline I. The 

 

3 As previously noted, the Forest Service already caps use here, making comparisons to actual use 

unfair. 
13

Selected Alternative actually cuts public access to Admiralty Island Wilderness Use Areas 

overall during the late spring and summer seasons relative to Shoreline I by one-third. In 

general, the purpose of the late spring and summer cuts under the Selected Alternative is to 

shift outfitter/guide use away to provide opportunities for unguided activities or to shift use 

to the early spring season. [PR 923_1288 at 190-91, 197, 200, 202-203, 209]. 

 The following table shows that the FEIS conveys a misleading impression about the cuts 

to guided Wilderness access: 
14

ADMIRALTY ISLAND SERVICE DAY ALLOCATION CUTS 

 Shoreline 

I/Proposed Action 

Service Days: 

Summer 

Change 

from 

Shoreline I 

Shoreline 

I/Proposed Action 

Service Days: Late 

Spring 

Change 

from 

Shoreline I 

04-05A SW 

Admiralty 

463/485 +22 206/60 -146 

04-06A 

Pybus Bay 

590/675 +85 122/50 -72 

04-06B Eliza 

Harbor 

295/310 +15 150/60 -90 

04-07A 

Gambier Bay 

393/280 -113 79/30 -49 

04-07B 

Cross-Admiralty 

Canoe Route 

491/395 -96 99/60 -39 

04-08 NE 

Admiralty 

983/320 -663 218/45 -173 

04-09A 

Seymour Canal 

1193/320 -873 187/60 -127 

04-10A 

Greens Creek 

590/250 -340 87/20 -67 

04-10B NW 

Admiralty 

590/415 -173 175/75 -100 

 4,508/3,450 -2,155 1,204/385 -863 

3. Conclusion 

The FEIS recognized that Shoreline II’s impact on economic opportunities was a 

significant issue, and the analysis measured economic effects in terms of total service day 

allocations and broad visitor industry trends. [FEIS at 1-16]. The draft ROD asserted that 

the Selected Alternative addresses visitor industry needs because it increased guided visitor 

service day allocations by 32,856 service days – purportedly a 69 percent increase relative to 

Shoreline I. [Draft ROD at R-11-R-12]. But the Draft ROD arbitrarily ignored the spatial and 

temporal distribution of guided visitor activities. One third of the service day allocation 

“increases” occur in the winter and fall and are meaningless. 

The draft ROD is arbitrary because it relies on an FEIS that violated the APA and 

NEPA by relying on service day allocation increases that are not relevant to visitor industry 

stability and growth, and by cutting service days at times and places that are critical to RSNT 

SCV operators. The FEIS failed to disclose or analyze adverse impacts. The Reviewing Officer 

should remand the FEIS to the Responsible Official with instructions to prepare and circulate 

additional NEPA analysis that considers factors relevant to growth and stability for RSNT 
15

SCV operators with an emphasis on the spatial and temporal distribution of RSNT SCV 

activities. 

C. Objection Point 2: The FEIS failed to consider visitor demand for high quality Wilderness 

recreation experiences 

1. Statement referencing prior written comments and content of objection and xplaining 

how decision and or analysis specific violate law or regulation 

 The summer season service day allocation increases occur in a small number of Use 

Areas that feature Large Group Areas that fail to provide the experience marketed to and 

desired by guided visitors. The Boat Company’s DEIS comments explained that the DEIS 

failed to consider the industry need to market and access specific types of recreation 

experiences in order to maintain current industry stability and provide opportunities for 

growth. [PR 793_0845 at 8-9]. The FEIS omitted important information such as cruise travel 

routes and visitor demand for high quality wilderness recreation opportunities. The Boat 

Company provided detailed cruise itinerary and marketing information. The agency’s own 

actual use data also provide clear evidence of market demand and growth opportunities for 

specific types of recreation experiences. 

NEPA requires federal agencies to disclose sufficient information as need to ensure 

“informed decisionmaking and informed public participation.” [State of Cal. v. Block, 690 

F.2d 753, 767 (9th Cir. 1982). An EIS serves two functions: (1) to ensure that agencies take a 

hard look at the environmental impacts of proposed projects and (2) to ensure the availability 

of information to the public so as to enable public participation in the decisionmaking 

process. [Robertson v. Methow Valley Citizens Council, 490 U.S. 332. 349 (1989)]. In 

particular, an EIS cannot serve this second essential functions if it reflects misleading 

economic assumptions “by skewing the public’s evaluation of a project.” [Hughes River 

Watershed Conservancy v. Glickman, 81 F.3d, 437, 446 (4th Cir. 1996)]. 

The failure of the FEIS to analyze relevant economic information subverted NEPA’s 

purpose of ensuring the availability of an “accurate assessment of the information” necessary 

to evaluate project impacts. [Natural Resources Defense Council v. U.S. Forest Service, 421 

F.3d 797, 812)(9th Cir. 2005]. Further, the Administrative Procedure Act (APA) requires that 

an agency “examine the relevant data and articulate a satisfactory explanation for its action, 

including a “rational connection between the facts found and the choice made.” [Motor 

Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 

(1983)]. An agency action is “arbitrary and capricious if the agency ... entirely failed to 

consider an important aspect of the problem, offered an explanation for its decision that runs 

counter to the evidence before the agency, or is so implausible that it could not be ascribed 

to a difference in view or the product of agency expertise.” [Id.]. 

The Responsible Official proposes the implausible as an “economic opportunity” – that 

RSNT SCV operators should avail themselves of service days on the rough outer coast, in 

winter, or in Large Group Areas. The result is that the FEIS overinflates the benefits of the 

plan with regard to how it meets the project purpose and need, and fails to disclose the 

adverse economic effects on outfitter/guide businesses and the guided public by relying on a 

broad scale analysis that arbitrarily ignores market trends, the interests of guided visitors 

and the operational logistics of tour operators. 

2. Statement of supporting reasons 

The important problem ignored in the analysis is that industry growth and stability in 

large part depend on the ability to market and provide unique experiences in areas that 

combine accessibility and features important to RNST SCV operational logistics. The FEIS 
16

wrongly assumed that a broad service day allocation increase in some Use Areas will meet 

Forest Plan objectives to provide for industries that contribute to local and regional 

economies. 

a. The analysis arbitarily ignores market demand for high quality recreation 

experiences and small cruise tour logistics and travel routes 

The Boat Company’s first set of scoping comments requested that the availability of 

guided Wilderness recreation opportunities should be a distinct Unit of Measure considered 

in detail as part of the analysis of economic effects on outfitter/guides. The selected metrics 

for evaluating economic impacts – total service day numbers and broad, statewide and 

regional economic trends - were incomplete without explicit consideration of public demand 

for and access to guided Wilderness recreation opportunities. It was arbitrary for the Forest 

Service to ignore the specific values of Wilderness Use Areas for guided visitor activities. The 

FEIS also arbitrarily fails to consider the agency’s own actual use data that shows specific 

trends regarding the spatial and temporal distribution of Remote Setting Nature Tours. The 

Boat Company provided the Forest Service with tour itineraries, marketing materials, and 

other data that would be relevant to showing the particular types of experiences desired by 

the guided public. [See PR 793_0863, 0864, 0869, 0872, 0885, 0895]. In particular, The 

Boat Company and many other SCVs with smaller passenger capacities specifically market 

the Wilderness experience and tailor operations to fit within Forest Plan standards for guided 

use in Wilderness. 

The FEIS adopts two ways to measure economic effects – (1) service day allocations 

and (2) economic trends in tourism growth. [FEIS at 1-16]. The FEIS acknowledges that the 

Forest Service needs to “replace the 2004 Shoreline Outfitter/Guide ROD to better align with 

current market demand for non-motorized outfitter/guide services” in order to respond to an 

expanded number of visitors, service offerings, and increase in the fleet of small to mid-size 

cruise operators. [FEIS at 1-6]. But the economic analysis arbitrarily insists that the Forest 

Service lacks data to assess regional visitation trends: 

Valid and reliable data regarding the segment of the visitor industry that 

represents commercial outfitter and guide markets is limited and sometimes 

non-existent. Visitors procuring commercial outfitter and guide shoreline zone 

services can largely be characterized as independent visitors. While significant 

data exists regarding cruise passenger behavioral patterns, minimal data exists 

regarding independent visitor behavior and expenditure patterns. 

Consequently, determining market trends in the outfitter and guide segment of 

the regional visitor industry is challenging and largely based on an analysis of 

statewide and regional visitation trends. [PR 0183 at 2 (alternative 4 analysis)]. 

This assertion is arbitrary because the Forest Service compiles actual use data and 

received other materials in the record from RSNT SCV operators which would enable the 

agency to identify market trends, including indicia of potential significant expansion from the 

largest SCV operators. The Forest Service has shown the capacity to identify every timber 

operator in southeast Alaska regardless of size, consider their operational costs, and plan for 

them to supply intended markets from specific areas that provide habitat features desired by 

the industry, such as transportation infrastructure and higher volume old and second 

growth stands. [2016 LRMP at 3-227-250; 3-485-3-498]. The Forest Service has data 

relevant to each outfitter/guide operating under the Shoreline plan. [PR 793_0989]. But the 

analysis failed to go anywhere near that far here – for a much larger industry. The FEIS 

instead insists that “the most reliable and valid method for determining growth of industry is 

to follow tourism trends across multiple segments of the tourism industry.” [FEIS, Appx. E 

at E-9]. And it did not even accomplish that modest task because it omits consideration of 

trends in one of the largest segments of the industry – the RSNT SCV sector. 
17

i. Actual market trends show demand for high quality Wilderness recreation 

opportunities 

The primary activity sought by the guided public is Remote Setting Nature Tours, 

which accounts for 63 percent of guided public use in Shoreline areas or even more using 

updated data. [FEIS at 3-56; PR 763_1265]. As explained in subsection b. under this 

heading, the actual service day allocation scheme only provides opportunities for growth in 

Large Group Areas, the fall through early spring seasons, and in areas inaccessible to RSNT 

SCV operators. The analysis omits any discussion or way to measure whether replacing 

access to desired visitor experiences in Wilderness Use Areas with lower quality experiences 

would reduce opportunities for growth or stability. As the Shoreline I FEIS recognized, 

“[r]ecreation use is not evenly distributed among the Use Areas” and some “experience much 

higher levels of use than other areas.” [2004 Shoreline FEIS at 3-22]. The Juneau Economic 

Development Council’s Visitor Products Cluster Working Group explains that “[v]isitors are 

willing to pay premium prices for higher quality experiences in more pristine environments.” 

[Id. at 121]. Small cruise passengers are a specific type of clientele that seeks “unique 

experiences.” [PR 793_0399 at 8-10]. As the record shows: 

The brand associated with small cruise vessel companies is to provide 

uncrowded experiences away from masses of people and the companies must 

deliver on those expectations. For small cruise vessel operators that depend 

heavily on access to U.S. Forest Service (USFS) land along the cruise routes, 

any action that limits access will threaten business stability and reduce 

opportunities for growth. [PR 793_0399 at 20]. 

Similarly, the 2016 TLMP FEIS acknowledges that “[c]ommercial providers of 

recreation activities base much of their marketing strategy on particular environmental 

settings and identified recreation places within those settings.” [2016 LRMP FEIS at 3-357]. 

It explains that: 

... many businesses that provide boat or aircraft access for wildlife viewing and 

other activities have a low tolerance for the presence of other groups in the 

same area. The present of more than two or three other parties in a bay or area 

may cause such operators to seek substitute locations. The ability to market 

Alaska tourism ... is dependent on meeting customer expectations of seeing and 

experiencing vast, untamed land and its wildlife. [Id. at 3-366]. 

The approach of the Selected Alternative which shifts RSNT SCV uses from Wilderness 

Areas to Large Group Areas fails to recognize or respond to this critical issue. One of the 

primary initiatives of the Visitor Products Cluster Working Group is to increase guided public 

access to land, and particularly those “higher quality experiences in more pristine 

environments.” [PR 793_0148 at 121, 124 (JEDC 2011)]. As explained in an e-mail to the 

Forest Service from one small cruise operator, “I wanted to echo ... that access to public 

lands is key for our operation.” [PR 793_0388 (Christine Smith, M/V David B)]. Other 

similar RSNT SCV operators such as Blue Water Adventures and Northwest Navigation both 

market specialized cruises that emphasize visitor access to Wilderness recreation 

opportunities aboard vessels with capacities of roughly 6 – 12 passengers. [PR 793_0863, 

0869, 0885]. Alaska Dream Cruises markets on-shore wilderness opportunities accessible 

via its ten-passenger vessel, the Misty Fjord. 4

Operators with larger passenger capacities also market Wilderness-based recreation. 

Alaska Dream Cruises operates larger vessels and provides wilderness viewing experiences. 

[Id.]. One of the region’s largest tour operators, Un-Cruise Adventures, also emphasizes 

 

4 See e.g. www.alaskandreamcruises.com/cruises/
18

wilderness experience in its marketing materials.5 Indeed, the analysis notes that Juneau 

Ranger District receives low levels of use overall, except in Wilderness Areas. [FEIS at 3-64]. 

Implicit – and obvious - in this finding is that there is more demand for Wilderness 

experiences than there is for access to other areas. In sum, based on industry marketing 

strategies, it is clear that the analysis is incomplete without explicitly considering market 

demand for Wilderness experiences. 

ii. The FEIS arbitrarily ignores the need for Remote Setting Tour Operators to 

access Wilderness Use Areas along cruise travel routes 

RSNT SCV operators rely on access to Shoreline II Wilderness Use Areas, which 

comprise over 2.3 million acres within the four ranger districts - nearly a third of the 

mainland, nearly all of Admiralty Island, nearly a third of Baranof Island, and the entire 

outer west coast north of Salisbury Sound. [See id. at 3-18-3-19, Fig. 3-1 and Table 3.6]. In 

between these wilderness areas – in Peril Strait and on eastern Chichagof Island – there is a 

large amount of shoreline that has been, is or may be allocated to federal or state timber 

uses. [2016 Tongass LRMP FEIS at 2-20; Exhs. 11, 12]. This means that there is a much 

smaller amount of area encompassed within Natural Setting LUDs that are often distant from 

each other or otherwise lack key features in terms of visitor demand or operational logistics. 

Indeed, the record shows that large group areas have not had the anticipated level of use 

because they do not provide desired recreation settings. [PR 793_0021 at 2-5].

The Boat Company’s itinerary and cruise routes feature and depend on providing 

guided public access to specific Wilderness Use Areas. [See, e.g. PR 793_0895]. The Boat 

Company and other northern Tongass operators utilize travel routes that begin and end in 

Juneau, Petersburg and Sitka, so that locations in Stephens Passage such as Tracy and 

Endicott Arm, eastern Admiralty Island, and eastern Baranof Island are the key attractions 

that fit within feasible route options. [Id., PR 793_0863, 0864, 0872]. These Use Areas 

provide important features such as relatively sheltered waterways, protected anchorages, 

unique scenic views and large bays. For example, the Tracy Arm and Fords Terror feature 

scenic fjords and glacier views with abundant wildlife watching opportunities, and Endicott 

Arm offers the advantage of a short cruise length to access the Dawes Glacier. [PR 793_1288 

at 38, 40, 42]. 

 There are 20 Wilderness Use Areas, but five of them are either inaccessible to RSNT SCV 

operators due to their location on the outer coast. Three northern Admiralty Use Areas 

provide opportunities for freshwater fishing but lack protected anchorages or other 

characteristics that are important to RSNT SCV operators such as reasonable distance from 

other desirable Use Areas or unique scenic, hiking or wildlife viewing opportunities. [PR 

793_1288 at 79-80, 86-87, 93, 95]. The Selected Alternative provides for 2,380 service days 

in these eight Use Areas of little value for RSNT SCV operators for the summer season, or 

2,171 more service days in excess of the annual average actual use from 2010-2014. [FEIS 

at 2-31-2-34]. It is arbitrary for the draft ROD to rely on available surplus days in these 

areas to support stability and growth opportunities for the visitor industry’s largest sector. 

The analysis should have evaluated potential adverse impacts to RSNT SCV operators 

that would result from itinerary changes and reduced access to Wilderness Use Areas – but it 

did not. 

3. Conclusion and suggested resolution 

The FEIS failed to adequately consider actual market demand trends or operational 

logistics that affect Remote Setting Nature Tour operators and their dependence on specific 

 

5 See, e.g. https://www.un-cruise.com/destinations/alaska-cruises
19

Wilderness Use Areas, violating NEPA and the APA. The Reviewing Officer should remand 

the FEIS to the Responsible Official with instructions to prepare additional NEPA analysis 

that includes an improved socio-economic analysis that reviews trends in market demand for 

specific visitor experiences and considers effects to visitor industry stability and growth in 

terms of the actual distribution of Use Areas that are accessible to RSNT SCV operators and 

provide prime recreational habitat features such as unique scenic qualities, wildlife viewing 

opportunities and trails, and protected anchorages at reasonable distances from other Use 

Areas. 

D. Objection Point 3: The FEIS fails to assess adverse impacts to the visitor industry by 

excluding small passenger capacity vessels from the analysis 

1. Statement referencing prior written comments and content of objection and xplaining 

how decision and or analysis specific violate law or regulation 

The Boat Company’s DEIS comments provided detailed information about RSNT SCV 

operator tours and operational logistics and requested that further NEPA analysis do more 

than look at broad tourism trends. [PR 793_0845 at 7 – 10]. The overall approach of the 

Selected Alternative – to shift use to Large Group Areas – reflects an analysis that considers 

only one component of the SCV fleet: SCVs that carry fifty or more passengers. The FEIS 

insists that the Forest Service tracked multiple segments of the tourism industry – but the 

record makes clear that analysis considered only large passenger capacity vessels that 

primarily use Large Group Areas. [FEIS, Appx. E at E-9]. The draft ROD is arbitrary 

because it relies on an FEIS that excluded numerous smaller passenger capacity SCVs from 

the analysis, thus failing to address the significant direct and indirect effects on these 

operators. 

NEPA requires agencies to describe the affected environment and discuss direct and 

indirect effects and their significance. [40 C.F.R. § 1502.15, 1502.16]. Cost-benefit analyses, 

should, at a minimum, “at least indicate those considerations, including factors not related 

to environmental quality, which are likely to be relevant and important to a decision. [40 

C.F.R. § 1502.23]. The failure of the FEIS to analyze relevant economic information 

subverted NEPA’s purpose of ensuring the availability of an “accurate assessment of the 

information” necessary to evaluate project impacts. [Natural Resources Defense Council v. 

U.S. Forest Service, 421 F.3d 797, 812)(9th Cir. 2005]. 

Further, the Administrative Procedure Act (APA) requires that an agency “examine the 

relevant data and articulate a satisfactory explanation for its action, including a “rational 

connection between the facts found and the choice made.” [Motor Vehicle Manufacturers 

Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)]. An agency action is 

“arbitrary and capricious if the agency ... entirely failed to consider an important aspect of 

the problem, offered an explanation for its decision that runs counter to the evidence before 

the agency, or is so implausible that it could not be ascribed to a difference in view or the 

product of agency expertise.” [Id.]. The failure to identify smaller passenger capacity SCVs 

as part of the industry was a significant omission. 

2. Statement of Supporting Reasons 

The FEIS states that “[i]n total, there are approximately eight operators that offer 

approximately 100 Southeast small vessel voyages each year” and identifies a 2016 small 

ship capacity of 12,358 passengers. [FEIS at 3-11]. The FEIS utilized data from the Alaska 

Department of Environmental Conservation’s (DEC) wastewater discharge program, which 

encompasses only small cruise vessels carrying 50 or more passengers. [Id.]. However, as 

the DEC explained to the Forest Service, there is a difference between its vessel registration 

numbers and actual cruises because the wastewater discharge program does not count all 
20

vessels – i.e. those with a passenger capacity of 49 or fewer persons. [PR 793_1312]. Thus, 

the socio-economic analysis in the FEIS identifies only large capacity cruise vessels – likely 

five Un-Cruise Adventures vessels, two Lindblad Expedition vessels, and one other. The 

Alaska Division Economic Development reports that there were actually nine of these 50 

passenger plus capacity small cruise vessels operating in 2014 that made 155 trips, or over a 

third more than estimated in the FEIS. [PR 793_0399 at 12]. 

The FEIS asserts that there is “limited” data regarding the small vessel cruise industry 

that varies from one source to the next. [FEIS at 3-11]. But updated cruise data analyses 

use an “improved method” of assessing small cruise activity that provides very different 

numbers than the approach used in the FEIS. [PR 793_0399 at 8; PR 793_1309 at 9]. The 

agency’s own data, and the Alaska Division of Economic Development’s report in the record, 

show that the socio-economic analysis ignored the significant number of small cruise vessels 

with smaller passenger capacities. [See PR 793_0626 (identifying specific outfitter/guides) 

and PR 793_0399 at 12 (providing a list of 36 small cruise operators that offer tours in 

southeast Alaska, including a number of operators identified in the Forest Service’s data but 

not counted in the FEIS)]. The State of Alaska’s Division of Economic Development defines 

an SCV as an overnight commercial passenger vessel that carries less than 250 passengers, 

and includes yachts and some motor vessels that carry less than 20 passengers. [See PR 

793_1399 at 6]. And the FEIS arbitrarily fails to consider these vessels, including The Boat 

Company’s vessels, in the analysis. 

The Division of Economic Development’s report, using improved methods of data 

collection, shows that the FEIS provided an inaccurate and low estimate of SCV passenger 

capacity and activity. While the FEIS considered only eight operators making an average of 

100 total trips, in 2014, there were actually 26 SCVs operating in southeast Alaska in 2014 

that made 401 trips. [PR 793_0399 at 12]. The vessel capacity was 15,588 persons – 25 

percent higher than the 11,760 passenger capacity estimated in the FEIS for the same year. 

[Cf id. and FEIS 3-11-3-12, Table 3-4]. The Division of Economic Development’s report 

shows that SCV capacity increased from 14,440 passengers in 2012 to 17,744 passengers in 

2014. [PR 793_0399 at 8]. In contrast, the FEIS identifies a capacity of 10,207 passengers 

in 2012, increasing to 11,760 passengers in 2014 – 30 percent less than estimated by the 

Division of Economic Development’s assessment of all SCVs. [FEIS at 3-11-3-12, Table 3-4]. 

A primary reason for this disparity is the exclusion of the twenty SCVs that take less 

than 50 passengers which caused the FEIS to exclude nearly 4,700 passengers from its 2014 

capacity estimate. [PR 793_0399 at 12]. Sixteen of these SCVs, including The Boat 

Company’s vessels, have passenger capacities of less than 24 persons. [Id.]. Most of these 

smaller passenger capacity SCVs feature itineraries that operate adjacent to Shoreline II 

Wilderness Use Areas. [PR 793_0399, Appx. C at 34-36]. 

3. Conclusion 

The Boat Company submits that the failure to consider its operations and other 

similarly situated lower passenger capacity SCVs is a significant error, particularly given the 

Forest Service’s plan to shift use during the summer season to Large Group Areas. The FEIS 

considers only larger capacity passenger vessels in the analysis, and thus fails even consider 

adverse impacts to smaller capacity SCVs that market unique recreational experiences in 

less crowded areas, violating NEPA and the APA. The Reviewing Officer should instruct the 

Responsible Official to prepare and circulate additional NEPA analysis that identifies small 

passenger capacity SCVs and discloses adverse impacts. 
21

E. Objection Point 5: The FEIS fails to use the best available data to assess growth 

1. Statement referencing prior written comments and content of objection and explaining 

how decision and or analysis specific violate law or regulation 

The Boat Company’s DEIS comments explained that the analysis did not adequately 

assess the growth potential of the visitor industry. [PR 793_0845 at 7-10, 23-24]. The 

direct effects analysis in the socioeconomics section arbitrarily assumes that Alternative 2 

provides for more outfitter/guide growth based solely on a service day allocation that 

responds to an analysis that consider only large passenger vessels. “Alternative 1 and 

Alternative 3, for all practical purposes, do not significantly support growth in outfitter/guide 

use. Alternative 2, the proposed action, would allow room to grow the outfitter/guide sector 

by allocating 80,305 service days.” The FEIS based this conclusion on growth in the larger 

passenger capacity SCV fleet. But it underestimated the growth of this fleet, and how that 

growth would impact the smaller passenger capacity SCVs that the Selected Alternative 

would divert from Wilderness Use Areas that provide high quality recreation experiences into 

more crowded Large Group Areas. The FEIS thus violated NEPA by failing to use the best 

available data and relying on misleading economic assumptions. 

2. Statement of supporting reasons 

a. The socio-economic analysis needed focus on recent growth rather than using 

historical data as metric 

The FEIS measures demand broadly, based on trend data showing long-term increases 

in total visitation, cruise ship visitation, small cruise vessel capacity, and guided client use of 

the entire Tongass National Forest. [FEIS at 3-9 – 3-12]. The FEIS looks back to data from 

2004 to assess trends in capacity and guided clients. [FEIS at 3-11 – 3-12]. The 

socioeconomic resource report identifies a three percent annual increase per year based on 

this data. [PR 793_1290 at 3-9]. The Boat Company submits that the analysis should have 

focused on recent growth for two reasons. 

First, the small cruise vessel industry was very different in 2004, with one operator, 

Cruise West, responsible for most of the passenger capacity. [PR 793_0399 at 15 – 17, Appx. 

B1, B2, C at 33 – 37]. Cruise West operated vessels with much larger passenger capacity 

than the current fleet – capacities so large that they exceeded the limits for large group sizes 

in the Large Group Areas. [See id. and Shoreline I FEIS at 2-3]. The Boat Company operated 

during this period and does not recall Cruise West utilizing Shoreline Use Areas after the 

2004 Shoreline I ROD established a 75 person limit for Large Group Areas. Cruise West 

ceased operations shortly after the national recession negatively impacted Alaska’s visitor 

industry during 2009 and 2010. [PR 793_0399 at 15; PR 793_1288 at 9]. In other words, it 

is unclear to what extent, if any, Cruise West’s historical passenger capacity is relevant to the 

recent growth in small vessel cruise operators that seek access to Large Group Areas or 

disperse some of their passengers ashore in other Use Areas. 

Second, the analysis should have instead focused on the post-recession time period to 

assess recent trends in the small cruise vessel industry to assess growth in outfitter/guide 

use. SCV passenger capacity declined to a low of 7,128 passengers in 2011 following 

recession era slumps. [PR 793_1290]. But following the recession, the industry is on a 

“sustained path of growth” and the socio economics resource report assumes continued 

increased demand for special use permits. [PR 793-1288 at 9]. Other operators have 

refurbished the Cruise West vessels so as to provide for lower passenger capacities – and 

increased ability to access shoreline experiences. [PR 793_0399 at 15]. 

After the low year in 2011, the FEIS reports that SCV capacity increased from 10,207 

passengers in 2012 to 14,304 passengers in 2016 - a 29 percent increase over that five-year 
22

period, or nearly 6 percent a year. [FEIS at 3-11-3-12]. As previously noted, these figures 

exclude The Boat Company’s vessels and other operators with passenger capacities of less 

than 50 clients. In terms of passenger volume, the record shows an even larger postrecession increase - from 6,000 in 2012, to 10,000 passengers in 2013 to 15,000 passengers 

in 2014. [PR 793_0399 at 8; 793_1309]. The two largest companies operating in southeast 

Alaska intend to expand further, and a third company, Lindblad Expeditions, plans to add 

two 100 passenger vessels over the next two years. [PR 793_0399 at 19 (identifying plans by 

Un-cruise and Alaska Dream to expand in southeast Alaska); PR 793_0851]. 

The FEIS estimates a 2 percent increase in guided visitors across the Tongass National 

Forest over an eleven year period. [FEIS at 3-12]. But the number of guided clients has also 

increased at a higher rate over the most recent five-year period, from 533,388 clients in 2011 

to 624,667 clients in 2015, a 15 percent increase, or 3 percent annually. [FEIS at 3-12, 

Table 3-5]. The FEIS acknowledges that “[t]he most recent four years has yielded sustained 

growth with a decadal peak in 2015 at 624,667 guided clients.” [FEIS at 3-12]. Indeed, 

when Forest Service analysts compared the data sets used for the FEIS (2010-2014) with an 

updated data set, they identified a 10% increase in service days used, and a 14% increase in 

the RSNT sector. [PR 793_1264; PR 793_1265]. 

b. The FEIS failed to respond to public comment and discuss factors impeding 

current growth 

The Boat Company’s DEIS comments stated that the analysis also should have 

considered whether existing growth trends may not adequately reflect actual market demand 

because of existing limitations on access and staff resources. In particular, The Boat 

Company had requested a discussion of outfitter/guide use permit requests and denials. If 

the Forest Service is denying additional requests for Wilderness access for other operators 

such as the denial of The Boat Company’s request for additional use on Admiralty, this data 

would further suggest increased visitor demand for Wilderness access. The record shows that 

Forest Service staff know that they are restricting growth with use caps under Shoreline I. 

[PR 793_0017]. The comments referenced the Visitor Products Cluster Working Group’s 

report, which cited “demand for greater guided access to public land than current permit 

levels allow.” [PR 0148 at 119 (JEDC 2011); see also id. at 124 (“[d]emand exceeds permitted 

access levels”)]. 

But the analysis relied solely on broad trends and never considered the industry 

perspective that there is more potential for growth than indicated based upon the review of 

general trends. The Visitor Products Cluster Working Group – comprised of over twenty 

individuals representing various tour operators, academics, and municipal, state and federal 

representatives - is working on initiatives to increase the number of multi-day visitors to the 

region. [PR 0148 at 116 (Juneau Economic Development Council (JEDC) 2011)]. The 

Working Group believes that the region is under-marketed. [Id. at 117]. Also, excessive 

regulation and inflexible permitting processes reduce access and create barriers for business 

expansion. [Id. at 118, 124]. In other words, the FEIS needed to consider the effect of 

policies that limit growth, and the extent to which growth could be higher than projected in 

the Regional Economist’s analysis. 

The Working Group believes that “capacity control is hindering business expansion” 

and “limiting economic opportunity in the tourism industry in the Tongass National Forest.” 

[Id. at 119, 124]. In other words, the industry’s (and The Boat Company’s) position is that 

the growth potential is higher than estimated in the economic analysis in significant part 

because the analysis failed to consider the extent to which federal policy, and likely also a 

shortage of staff resources, have inhibited industry growth. 
23

The record further shows that RSNT SCV operators such as The Boat Company, 

Lindblad Expeditions, Un-Cruise Adventures, Alaska Charters and Adventures and 

Northwest Navigation Company believe that “the lack of resources for and efficiency within 

the Forest Service recreation program are failing to meet the needs of the recreation and 

travel industry,” impeding growth and stability. [PR 793_0893 at 1-2]. RSNT SCV operators 

identified the following problems: 

Special Use Permitting 

 Timeliness: A lack of timeliness in issuing permits or approving 

annual operating plans for multi-year permits often results in 

companies receiving authorization for operations just prior to, or in 

some cases, after, operating seasons have begun. This lack of 

certainty in advance of a season may unnecessarily result in 

companies failing to meet their commitments to clients. Strong and 

competitive market conditions in the tourism industry require 

businesses to make investments in operations and commitments to 

clients at least 1 year, and often times multiple years, in advance of 

an operating season.

 Capacity and Flexibility: A lack of capacity and flexibility in 

authorizing commercial recreation access is hampering industry and 

economic growth. As demand for guided/remote access increases, 

current special use permit holders are seeking to expand or diversify 

their operations and new companies are seeking to enter the market. 

In many cases, requests for increased capacity at existing or new 

locations are denied simply due to the lack of resources needed to 

review, evaluate and/or process requests. In some instances, the 

inability to sustainably manage increased demand has resulted in an 

overall reduction of access for users.

Infrastructure 

 Deterioration of existing infrastructure and landscapes: The poor 

condition of the existing system of remote trails and facilities as well 

as the impacts of concentrated use in unmaintained and some 

undeveloped sites is limiting public access throughout the Tongass. 

As conditions of trails deteriorate, operators have limited or 

eliminated guiding the public on developed but unmaintained trails 

due to safety concerns. Likewise, the Forest Service has closed 

commercial access to trails or use areas because of poor conditions. 

For areas with consistent or increased demand for access the lack of 

infrastructure improvement or authorization for operators to use 

alternate areas constrains access and industry growth, increases 

risks associated with public use, and increases the potential for 

impacting natural resources.

 New infrastructure: A near moratorium on planning, design, and 

construction of new trails and facilities fails to meet existing or 

anticipated increased demand for remote recreation sites. In areas 

where demand for commercial access is high and increasing, it is 

crucial that the Forest Service be willing and able to work with 

stakeholders to evaluate if and where the development of new trails is 

warranted to meet existing use, strategically disperse use and 

decrease the potential for user conflicts in remote areas, and/or 

minimize impacts on the natural environment.
24

NEPA requires federal agencies to respond to public comment by modifying the 

analysis, or explaining why no further response was necessary. [40 C.F.R. §1503.4(a)(3)(5)]. 

Yet despite The Boat Company’s experience with denied use requests,6 and the expert 

perspective of an advisory consisting of tour operators, the FEIS neither modified the 

discussion nor explained why the agency refused to modify the discussion, violating NEPA. 

c. The FEIS failed to analyze how the plan to shift use to Large Group Areas will 

adversely impact small cruise vessels with lower passenger capacities 

The Boat Company’s scoping comments also noted that the overall scheme of the plan 

– to shift guided public use away Wilderness - may have the undesirable effect of increasing 

visitor crowding and conflict in other areas, and thus not meet project objectives in terms of 

overall perceived crowding impacts. Its DEIS comments requested that the analysis consider 

potential negative impacts resulting from the dispersal of commercial recreation activities 

into other, non-Wilderness areas. These impacts would include reduced ability to market 

and provide Wilderness recreation opportunities. In other words, an important question that 

the analysis needed to consider was whether tour operators could lose existing market 

shares, or be unable to take advantage of growth trends relative to southern and central 

Tongass National Forest ranger districts or other portions of Alaska that offer more flexibility 

for guided visitor use of high-value scenic and remote recreation opportunities. 

The Forest Service developed Alternative 4 to respond to the economic growth issue 

through a higher allocation of service days (130,655) and through an analysis of visitor 

trends demonstrating consistent and increasing growth. [FEIS at 1-16]. It applies a five 

percent increase to the guided public service day allocation in Alternative 4 to respond to 

these trends and to allow for growth. [Id.]. But the service day increases in Alternative 4 

occur in inaccessible areas for RSNT SCV operators, or divert RSNT SCV operators into Large 

Group Areas. The Boat Company does utilize the Large Group Areas, but its tours rely on 

access to specific Wilderness Use Areas to provide the high quality remote recreation 

experiences desired by its clientele. 

 The FEIS did not address the issue of how the Wilderness Use Area restrictions could 

further concentrate guided visitor use into other areas. The Boat Company thus reiterates 

that further NEPA analysis needs to consider the impacts of shifting guided public access 

into smaller, congested areas such as Peril Straits. Thus, the selected alternative does not 

allow for increased guided visitor access to these critical Use Areas and in fact reduces 

guided visitor access. 

The FEIS states that “commercial recreation expansion could have a variety of 

unanticipated impacts depending on business practices, clientele preferences, and 

perceptions.” [FEIS at 3-13]. It recognizes that “if growth in large cruise ship activity 

continues at its current rate, then limited capacity and crowding may force certain cruise 

lines to diversity activities and locations, making greater use of the forest based recreation 

use capacity in the analysis area.” [Id.]. The FEIS acknowledges that the Selected 

Alternative may result in “displacement or dispersal” and cause operators to change locations 

“if they desire to maintain or increase their operations” but claims that it is difficult to predict 

the ability of operators to substitute locations. [Id. at 3-15]. But even though it is obvious 

there is only a limited amount of prime recreational habitat available for the dispersal of 

RSNT SCVs, the FEIS never analyzes or discloses that the current growth of larger passenger 

capacity RSNT SCVs will further crowd Use Areas with LGAs, and thus adversely impact 

operators such as The Boat Company. [Id.]. Use Areas in Peril Straits and Kelp Bay utilized 

 

6 The Boat Company and letter signatories are not the only operators pressed to reduce its service day 

requests. See also PR 793_1173. 
25

by RSNT SCVs receive intensive use from a large number of outfitter/guides, with high group 

per day rates and conflicts among multiple users at the primary recreation sites. [PR 

793_1288 at 68-70]. 

3. Conclusion and suggested resolution 

The Boat Company submits that the economic analysis is misleading and requests that 

the Reviewing Officer direct the Responsible Official to redo the socio-economic analysis: (1) 

analyze visitor industry growth in light of recent trends, particularly growth in RSNT SCV 

passenger capacity since the recovery from the recession and data showing higher rates of 

growth in the future; (2) consider whether existing limitations on access stifle growth, 

including the extent to which the Forest Service has denied requests for service day increases 

from outfitter/guides and (3) analyze how prospective growth may displace some RSNT SCV 

operators and consider the availability of areas for dispersal that are accessible and provide 

high quality recreation experiences to meet visitor demand. 

III. NEPA Problems: Range of Alternatives and Significant Issues 

 A. Objection Point 6: The Draft ROD is arbitrary because it relies on an FEIS that 

violated NEPA by presenting an unreasonable range of alternatives 

The Forest Service developed three action alternatives. Alternative 2 sought to balance 

guided and unguided public use; Alternative 3 emphasized perceived crowding concerns by 

reducing guided public service days and Alternative 4 emphasized increased guided public 

access and economic growth. [FEIS at 2-7 – 2-12]. For the summer season in all areas, the 

three action alternatives would provide 13 percent (Alternative 3), 17 percent (Alternative 2), 

and 27 percent (Alternative 4) of estimated capacity to the guided public. [Id. at 2-34, Table 

2-14]. The analysis measures all significant issues primarily based on the number of service 

days allocated to the guided public across all areas regardless of use patterns. 

1. Statement Referencing Prior Written Comments and Content of Objection and 

Explaining How Decision and/or Analysis Specifically Violate Law or Regulation 

NEPA requires that you “[r]igorously explore and objectively evaluate all reasonable 

alternatives.” [40 C.F.R. § 1502.14(a)]. The discussion of the alternatives should be “in 

comparative form, thus sharply defining the issues and providing a clear basis for choice 

among options by the decision maker and the public.” [40 C.F.R. §§ 1502.14]. The key 

criterion for determining whether a range of alternatives is reasonable “is whether an EIS’s 

selection and discussion of alternatives fosters informed decisionmaking and informed public 

participation.” [Westlands Water Dist. V. U.S. Dep’t of Interior, 376 F.3d 853, 872 (9th Cir. 

2004)(citations omitted). While an EIS need not include every conceivable alternative, 

[Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978)], “[t]he existence of 

a viable but unexamined alternative renders an environmental impact statement 

inadequate.” [Westlands Water Dist., 376 F.3d at 868]. 

Only by studying a reasonable range of alternatives can the agency adequately 

compare the environmental impact of its proposed action, and allow the public to weigh in on 

alternative courses of action. [See 42 U.S.C. § 4332]. The alternatives requirement is critical 

to serving NEPA’s primary purposes of ensuring fully informed decisions and providing for 

meaningful public participation in environmental analyses. [See 40 C.F.R. § 1500.1(b), (c)]. 

By examining both the environmental impacts of the desired path and the impacts of other 

reasonable alternatives, NEPA enables an agency, and the public it serves, to evaluate 

whether the government has other options. [Headwaters, Inc. v. Bureau of Land Mgmt., 914 

F.2d 1174, 1180 (9th Cir. 1990). 
26

The Boat Company’s DEIS comments recommended that the Forest Service: (1) 

convert the Selected Alternative, Alternative 2 as a low-encounter, low-use Alternative; (2) 

drop Alternative 3 as unreasonable due to the severe reduction in guided public access to 

Wilderness Use Areas; (3) modify Alternative 4 as the Selected Alternative and “middle 

ground” alternative by providing additional guided public access to Wilderness Use Areas 

along SCV cruise routes and applying site-specific mitigation measures to address crowding 

in community use and subsistence use locations and (4) develop a new, higher guided public 

use alternative based on the range of alternatives in the 2004 Shoreline I FEIS and the 

Ketchikan/Misty Fiords outfitter/guide management plan. [PR 798_0845 at 19, 28]. 

The FEIS failed to adequately consider a range of minimum and maximum resource 

potential alternatives. The Forest Service has acknowledged that its prior planning rule 

requires alternatives that provide a range of minimum and maximum resource potentials in 

order to reflect a full range of resource uses and values produced from public forests in order 

to satisfy NEPA. [See, e.g. Natural Resources Defense Council, 421 F.3d 797, 813 (9th Cir. 

2005)(citing 36 C.F.R. § 219.12)]. Although the new planning rule does not carry over 

alternative development requirements from §219.12(f), the exclusion was because the 

requirements were duplicative of NEPA’s requirements. [See 77 Fed. Reg. at 21,203]. This 

FEIS primarily considers alternatives that reduce guided visitor access to Wilderness Use 

Areas utilized by RSNT SCV tour operators. This does not adequately reflect a full range of 

resource values and uses. 

The CEQ’s “Forty Questions” explains that a range of alternatives should include 

quantitative differences in how an agency analyzes a proposal: 

For some proposals there may exist a very large or even infinite number of 

possible reasonable alternatives. For example, a proposal to designate 

wilderness areas within a National Forest could be said to involve an infinite 

number of alternatives from 0 to 100 percent of the forest. When there are 

potentially a very large number of alternatives, only a reasonable number of 

examples, covering the full spectrum of alternatives, must be analyzed and 

compared in the EIS. An appropriate series of alternatives might include 

dedication of 0, 10, 30, 50, 70, 90 or 100 percent of the Forest to wilderness. 

What constitutes a reasonable range of alternatives depends on the nature of 

the proposal and the facts in each case. [CEQ 40 Most Asked Questions, 

Question 1b].7

Here, the agency’s goals and objectives are to “[p]rovide a diversity of opportunities for 

resource uses”; “a wide range of natural resource employment opportunities,” “a range of 

recreation opportunities consistent with public demand, emphasizing locally popular 

recreation places and those important to the tourism industry” and “maintain an enduring 

wilderness resource while providing for the public purposes of recreation.” [FEIS at 1-6]. 

The need statement recognizes that the Forest Service must replace Shoreline “to better align 

with current market demand.” [Id.]. But then two of the three action alternatives would 

reduce guided visitor access to recreation places important to the tourism industry. 

Additionally, Shoreline II manages diverse outfitter/guide uses over four ranger 

districts. The Responsible Official recognized that this is a programmatic EIS done on a 

landscape scale. [PR 793_0057]. The programmatic 2016 LRMP Amendment FEIS makes 

 

7 https://ceq.doe.gov/nepa/regs/4011/1-10.HTM (last accessed 1.15.2016; question 1b). See also 

Exh. 10 at 53 (explaining that when a recreation manager proposed to establish use limits for a 

particular activity, and the manager determines a daily limit range of between 25 and 100 trips, 

“rather than evaluate every possibility, you might choose to look at limits of 25, 50, 75 and 100 daily 

trips” in order to “evaluate the full spectrum of reasonable options”). 
27

clear that visitor industry activity across the Tongass National Forest dwarfs the timber 

industry covered by the Amendment by an order of magnitude. [2016 LRMP FEIS at 3-482 - 

3-501]. The nature of a programmatic FEIS heightens the need to consider a broad range of 

alternatives. [See, e.g. State of Cal. v. Block, 690 F.2d 753, 766 (9th Cir. 1982); Resources 

Limited Inc. v. Robertson, 35 F.3d 1300, 1307 (9th Cir.1993)(approving a range of alternatives 

that provided for a wide range of meaningful quantitative distinctions); Seattle Audubon 

Society v. Moseley, 80 F.3d 1401, 1404 (9th Cir. 1996); Center for Biological Diversity v. Nat. 

Highway Traffic Safety Admin., 538 F.3d 1172, 1218 (9th Cir. 2008); see also Westlands 

Water Dist. 376 F.3d at 868 – 872 (concluding, in a non-programmatic context, that a 

Department of Interior EIS evaluating six alternatives, including two endpoints for maximum 

and minimum instream water flows and mid-range alternatives was sufficient under NEPA)]. 

2. Statement of supporting reasons 

The FEIS insists that “all action alternatives offered an increase in allocation over 

[Shoreline I] and Alternative 4 proposed the greatest increase in outfitter/guide allocation 

based on trends in the visitor industry.” [FEIS, Appx. E at E-9]. It also asserts that “all 

alternatives offer increased opportunities across all wilderness areas. None of the 

alternatives restrict outfitter/guide use in wilderness areas.” [Id. at E-48]. As explained in 

the preceding section, the Selected Alternative and Alternative 3 absolutely cut service days 

in the Wilderness Use Areas actually utilized by RSNT SCV operators relative to Shoreline I, 

which the Forest Service has deemed to be incompatible with current demand and growth. 

Because the FEIS relies on a broad-based increase in service days across all six wildernesses 

relative to actual use during only the summer season, it never considered whether the 

alternatives were reasonable with regard to the spatial and temporal distribution of RSNT 

SCV activities. [FEIS Appx. E at 12].8

a. Comparison with Shoreline I and other Tongass National Forest recreation plans 

shows a failure to consider a reasonable range of high and low guided public 

use 

The Boat Company’s comments throughout the process suggested specific ranges of 

outfitter/guide service day allocations to consider in the three action alternatives. The 

suggestions all reflected a review of other Tongass National Forest outfitter/guide 

management plans which provided significantly more flexibility for the visitor industry 

without controversy. 

In particular, the Boat Company urged the Forest Service to look to the 2012 

Ketchikan/Misty Fiords Ranger District’s (KMRD) Outfitter/Guide FEIS as a model to inform 

the development of a reasonable range of alternatives. The KMRD FEIS contemplated four 

alternatives. Action alternatives provided guided visitors with a range of between 23 percent 

to 50 percent of visitor capacity. [PR 0273 at 35-39 (Forest Service 2012)]. The no-action, 

status quo alternative, allocated 23,424 service days out of the available 113,020 summer 

service days (21%) to outfitter/guide use and was the most restrictive alternative with respect 

to outfitter/guide service day allocations. [See, e.g. id.]. This reflected, in part, the district’s 

analysis of the no-action alternative which found that maintaining the status quo “may mean 

missed opportunities for business growth” as there was “no room for outfitters and guides to 

expand their businesses above their currently authorized amount without new environmental 

analysis.” [Id. at 50]. The Ketchikan/Misty Fiords Ranger District designed its second most 

restrictive alternative, Alternative D, “to minimize effects to wilderness character qualities, 

 

8 The FEIS references increases in one specific Use Area, Pybus Bay, where the agency intends to issue 

a prospectus and thus would limit growth opportunities or even exclude existing operators. 
28

historic properties, sacred sites and traditional cultural uses.” [Id. at 32]. Alternative D 

provided roughly a general 25% summer service day allocation to the guided public – or a 

range very similar to the growth alternative - Alternative 4 - in the Shoreline II FEIS. [Id. at 

47-50]. 

Conversely, for all seasons and in all areas, the three Shoreline II action alternatives 

would provide between 10 percent (Alternative 3) and 20.5 percent (Alternative 4) of 

estimated capacity to the guided public, with a range of between 13.2 percent (Alternative 3) 

and 27.4 percent (Alternative 4) for the summer season. [FEIS at 2-25 – 2-41]. The 

Ketchikan/Misty Fiords Ranger District’s Alternative D provided for a level of guided public 

access that is significantly higher relative to estimated capacity as Shoreline II’s Selected 

Alternative. But Ketchikan/Misty Fiords did not select Alternative D. The analysis indicated 

that additional guided use could be accommodated with minimal negative impacts on forest 

resources and visitor experiences. [KMRD ROD at 17-18]. The selected alternative allocated 

36 percent (triple the proposed Shoreline II allocation) of the summer service days available 

for public guided use while responding to public comments, minimizing the potential for 

visitor conflicts and maintaining quality recreational experiences. [Id. at 4, 17, 20]. The 

recent Environmental Assessment for outfitter/guide management in Prince of Wales Ranger 

Districts also followed a similar approach in developing alternatives with maximum and 

minimum outfitter/guide service day allocations (50% and 7%, respectively) and a “middle 

ground” alternative (26%). [Forest Service. 2012. R10-MB-743b at 22, 27-28].9 

The Boat Company also asked the Forest Service to look at the Shoreline I FEIS as a 

potential model for developing the range of alternatives. Shoreline I proposed five 

alternatives (including no-action) that provided for outfitter/guide allocations ranging 

between 8% and 50% of the visitor capacity with “moderate level of commercial use” 

alternatives that allocated 21% and 23% of the capacity to guided commercial use. [Forest 

Service. 2004. R10-MB-519b at 2-9–27]. The FEIS promotes the Proposed Action as its 

middle-ground alternative. But again, it is most similar to the more restrictive alternative 

considered in the Shoreline I FEIS, Alternative 4, which allocated between 5 percent and 25 

percent of the estimated visitor capacity to the guided public. [Cf. Forest Service, 2004. 

R10-MB-519b at 2-19]. 

b. Two of three action alternatives limit guided public access to Wilderness Use 

Areas along RSNT SCV travel routes 

The Boat Company submits that the range of alternatives is inadequate to provide quality 

recreation experiences for guided visitors in Wilderness Use Areas. The following table 

illustrates service day cuts in a manner that actually reflect the spatial and temporal 

distribution of RSNT SCV operators. 

 

9 Similarly, the environmental assessment for the Admiralty Island National Monument/Wilderness 

Plan also contemplated four alternatives: an alternative A that would provide for public use to the 

maximum extent allowed by ANILCA and the Wilderness Act, an Alternative B that would manage the 

monument for public use while preserving several wilderness characteristics, an Alternative C which 

would minimize development and access within limits set by ANILCA, and a preferred alternative 

which provided the same management emphasis as Alternative B but included aspects of both 

Alternatives A and C. [Forest Service. 1987. R10-MB-19, Appx. B at B-1]. 
29

RSNT SCV Primary Wilderness Use Areas: Late Spring and Summer Allocations 

Use Area Shoreline 

I/Highest Actual Use 

Alternative 

2/change in service 

days from Shoreline I 

Alternative 

3/change in service 

days from Shoreline I

01-05D Tracy 

Arm 

239/85 210/-29 160/-139 

01-05E Ford’s 

Terror 

249/194 160/-89 110/-149 

01-05F Endicott 

Arm 

558/585 575/+17 435/-123 

04-01A Gut Bay 400/482 475/+75 375/-25 

04-05A SW 

Admiralty 

669/369 545/-124 410/-269 

04-06A Pybus 

Bay 

712/746 725/+13 545/-167 

04-06B Eliza 

Harbor 

346/227 370/+24 280/-66 

04-07A Gambier 

Bay 

472/204 310/-162 235/-237 

04-07B CrossAdmiralty Canoe 

Route 

519/142 555/+36 345/-174 

Difference from 

Shoreline I 

 -182 -1349 

Both Alternatives 2 and 3 substantially reduce guided public access to Juneau Ranger 

District Wilderness areas (Areas 01-05D, Tracy Arm, 01-05E, Fords Terror and 01-05F, 

Endicott Arm) during the late spring season to 160 and 135 days for the three areas, or 8 

percent and 7 percent of the 1,982 service day estimated capacity. The outfitter/guide 

service day allocations for Tracy Arm and Fords Terror in particular are so small (35 and 40 

days under the Proposed Action) that there would not be enough service days to provide for 

one day a week access for The Boat Company and another small operator. 

Even the highest guided visitor use alternative, Alternative 4, does not provide for a 

sufficient increase relative to Alternatives 2 and 3 to meet NEPA’s requirement to analyze 

meaningfully distinct alternatives. It provides 250 service days to the guided public across 

the three Juneau Ranger District Wilderness Use Areas, or 12.6% of the estimated capacity. 

If The Boat Company visited Tracy Arm one day per week at the end of the late spring 

season, it would use the entire service day allocation of 55 days for the Use Area. A smaller 

operator could take a guided group of six for five days each week for two weeks, and similarly 

use up the entire allocation. Ford’s Terror also has a 55 day guided public service day 

allocation. It is unreasonable to assume that such a low level of guided public access would 
30

meet the intent of Alternative 4 – to support local and regional economies through increased 

opportunities for the guided public. [FEIS at 2-12]. 

The summer season guided public service day allocation for Juneau Ranger District 

Wilderness Use Areas also limits access to quality wilderness recreation experiences for the 

guided public. The Proposed Action would allocate 790 service days to the guided public out 

of a total estimated capacity of 9,807 days, or 8% of estimated capacity. Group sizes for 

these Use Areas average roughly more than seven visitors, meaning that the Proposed Action 

would allow for only one group per day in any one of the three Use Areas over the summer 

season. Indeed, for the Ford’s Terror Use Area, guided public service day allocations would 

drop well below reported average annual use under the Proposed Action. Alternative 4 does 

not address business stability or growth potential – it allocates only 1,285 service days to the 

guided public, or 13.1% of estimated capacity. This issue recurs in other areas. As 

explained by a guide who sought an increase in service days as part of an effort to grow his 

business to include RSNTs: “[i]t is very frustrating to see that an out of state sea kayaking 

business is able to advertise that they are the ONLY sea kayak company permitted to lead 

trips in that area – it shouldn’t be like that.” [PR 793_0980 at 3]. 

The range of alternative outfitter/guide service day allocations in Sitka Ranger District 

Wilderness Use Areas is only slightly higher than those proposed for the Juneau Ranger 

District Use Areas, and thus similarly does not do enough to provide guided visitors with 

adequate opportunity for quality wilderness recreation experiences. As previously noted, the 

West-Chichagof/Yakobi Wilderness is not a reasonable option for many operators because of 

ocean conditions and distance from operationally feasible cruise routes. The late-spring 

season outfitter/guide service day allocation for the Gut Bay Use Area under the proposed 

action is 55 service days, or 7% of the estimated capacity of 839 service days. As with the 

Tracy Arm and Ford’s Terror Use Areas, this allocation level will exclude RSNT SCV operators 

for all but a day or two per week. For the summer season overall in all Sitka Ranger District 

Wilderness Use Areas, the guided public would receive 1,895 service days, or 8.7% out of a 

total estimated capacity of 21,639 service days. 

c. Selected Alternative is a low use alternative and fails to meet the purpose and 

need 

 The intent of Alternative 2 was “to balance commercial and non-commercial recreation 

opportunities and to provide and maintain high quality recreation experiences without 

degrading forest resources.” [FEIS at 2-27]. Additionally, Alternative 2 responds to Forest 

Plan goals and objectives to “[p]rovide for a range of recreation opportunities consistent with 

public demand” and “[p]rovide a diversity of opportunities for resource uses that contribute 

to the local and regional economies of Southeast Alaska.” [Id.]. 

The Selected Alternative does not achieve a reasonable balance because it is too 

restrictive of guided public access to the highest quality recreation experiences, particularly 

in Wilderness and Wilderness National Monument LUDs. As explained in the preceding 

sections, visitors who seek outfitter/guide services do so in the anticipation of experiencing 

remote wilderness recreation opportunities. Thus, the Proposed Action does not adequately 

meet the Forest Plan objective and project purpose of providing high quality recreation 

experiences for visitors who use commercial services. It does not adequately meet the Forest 

Plan goals of providing a range of opportunities that meets public demand from the tourism 

industry or ensuring that one of the region’s two most important private sector industries 

contributes to local and regional economies. 
31

The Boat Company’s DEIS comments described the Selected Alternative, Alternative 2, 

as a low use alternative. Overall, the Selected Alternative allocates 80,305 service days of the 

estimated total visitor capacity of 636,448 service days to guided public use by season and 

use area, or 12% of the total. [FEIS at 2-8]. During the summer season, the Proposed Action 

restricts guided public access to Wilderness Use Areas to 6,150 days out of an estimated 

Wilderness visitor capacity of 63,678 days, or less than 10 percent of the available 

opportunities for Wilderness recreation assuming all Wilderness Use Areas were accessible to 

RSNT SCVs. [FEIS at 2-31 – 2-34]. The Selected Alternative is even more restrictive in Use 

Areas adjacent to small cruise travel routes, particularly in Use Areas 01-05D – F, where the 

Proposed Action reserves 92 percent of the estimated capacity for private recreationists. [Id.]. 

The Selected Alternative responds primarily to a problem largely beyond the control of 

the Forest Service – the impacts of unguided marine traffic such as private yachts, 

commercial fishing vessels and cruise ships adjacent to Wilderness areas that offend a small 

number of individuals. The analysis then uses those impacts as a rationale to exclude a 

significant amount of public access to the most desired recreational experiences in the 

planning area – remote and Wilderness recreation. The result is that any potential growth in 

the number of recreational experiences allotted to the guided public will likely become 

concentrated in Large Group Areas, [non-remote LUDs], including a beach fringe where 

future timber management activities may substantially diminish or exclude quality public 

recreation experiences. The Selected Alternative fails to meet the purpose and need and 

agency objectives for Shoreline II. 

d. Alternative 3 is unreasonable 

As explained in the preceding sub-section, the Proposed Action is sufficiently 

restrictive that it is a low-use alternative and The Boat Company’s DEIS comments requested 

that the Forest Service eliminate Alternative 3 from any further NEPA analyses. It does not 

meet the project purpose and need and reflects an arbitrary saltwater encounter standard 

developed to manage encounters outside of Wilderness. More importantly, there is little 

connection, if any, between guided public use of Wilderness Areas and the non-social 

encounters the Forest Service seeks to address, which mostly involve sightings of commercial 

and charter fishing vessels and other non-outfitter/guide marine traffic, such as cruise ships 

and private yachts. [PR 793_0017, 0216]. The Boat Company agreed that it was 

appropriate, as was done for Shoreline I and in other recent analyses, to include an 

alternative that responds to the desires of unguided recreationists, minimizes crowding in 

popular local use areas, and provides for the needs of subsistence users. Such an alternative 

would help to clarify where site-specific mitigation measures or modest outfitter guide service 

day allocations will be appropriate. 

Alternative 3 goes way too far in addressing crowding concerns and the perceived loss 

of solitude by reducing outfitter/guide allocations in wilderness and in remote areas to 

unacceptably low levels. [FEIS at 2-9]. The Forest Service determined the allocation based 

on monitoring data and the “outstanding opportunities for solitude” threshold which defines 

those opportunities as locations where at least four out of five days monitored recorded no 

medium or high-impact encounters. [Id.]. The FEIS explained that “there was no clear 

method for applying a site-specific data-driven reduction in each use area” and instead 

applied a “general reduction” of 25 percent relative to “(1) maintain uncrowded conditions in 

currently uncongested areas; (2) reduce existing crowding in popular areas; (3) align 

recreation opportunities with ROS settings; (4) [m]aintain or reestablish10 opportunities for 

 

10 The Boat Company as well as its attorney and conservation director have put in thousands of sea 

days in southeast Alaska’s marine travel routes over the past forty years and strongly disagree, as 
32

solitude along shoreline zones within designated wilderness and (5) [p]rovide additional space 

for public users.” [Id. at 2-10]. It would reduce Wilderness access for guided visitors by 

1,457 days, or more than 20 percent relative to the no action alternative (7,139 days). 

The record further shows that the Forest Service developed the “Lower Allocation 

Alternative” without a clear link to outfitter/guide use and to respond to saltwater and air 

traffic over which the Forest Service has no jurisdiction: 

Outfitter/guide data indicates that we are within Primitive ROS standards 

when considering only national forest commercial use. But if you consider nonnational forest use, this standard would be exceeded in many areas. Saltwater 

use continues to be a management challenge for those areas with adjacent 

wilderness lands. 

After reviewing all of this information, there was no clear method for 

applying a specific data-driven reduction of allocations in response to public 

comments about proposed levels being too high or to ensure that Outstanding 

Opportunities for Solitude were upheld. However, a general reduction in 

onshore OG use could help reduce crowding in popular areas and lessen the 

number of medium and high impact encounters detrimental to wilderness 

solitude if it led to a reduction in the number of vessels and planes operating in 

close proximity to the shore/land. 

As a result, we took a pragmatic approach by proposing a 25% reduction of 

the proposed allocations across all use areas and all seasons (except winter) for 

allocations that are over 7%. For Use Areas/seasons with 7% or lower for the 

proposed action, these allocations would not be reduced in this alternative due 

to the already low allocations. ... This alternative will help alleviate concerns 

regarding crowding and impacted resources/experiences. 

Questions for the group: 

If solitude is being compromised, but not by OGs, should we be reducing OG 

use? Even if OG use is really low? Considered from another angle: should we 

be allowing OG use where there is already substantial encounter traffic? [PR 

0216]. 

Further: 

For alternative 3 we came up with a lower allocation, based on the fact that 

there already is crowding and we are not honoring already needing solitude. ... 

What Jenn and Kevin found is that we do not have any outstanding 

opportunities for solitude on Shoreline anywhere. 

Encounters with outfitter guides are not occurring, so do you restrict the 

commercial use? We came up on a 25% reduction, that would restore 

outstanding opportunities for solitude. It sounds like it’s the third party, 

independent tourism and fishing boats, that are really reducing solitude. We 

don’t have rationale that says commercial use is reducing solitude 

substantially, actually tour companies are impacting, but not when they’re not 

on shore, it’s when they are in water. 

 

discussed in the Section on the Wilderness resource, with the assumption that there is a loss of 

solitude that must be “re-established.” 
33

Some fishing vessels and such. Mainly private vessels. The vessels are 

mainly in state waters. [PR 0017]. 

 The Boat Company addresses the problems with the saltwater encounter standard and 

the lack of a monitoring program designed to produce statistically reliable data (i.e. precise 

(adequate sample size) and accurate (representativeness) in our comments on Adaptive 

Management and the Wilderness resource chapter and report. For purposes of the range of 

alternatives, Alternative 3 is not reasonable and should not move forward for further 

analysis. It responds to a standard for managing encounters in adjacent non-Wilderness 

marine travel routes outside of the Forest Service’s jurisdiction. It relies on the assumption 

that shoreline Use Areas were unimpacted by marine traffic and that the Forest Service can 

“re-establish” solitude. Even if the Forest Service did have jurisdiction over vessels in state of 

Alaska waters, the data do not show that the perceived problem that Alternative 3 seeks to 

address has a clear, let alone compelling, relationship to outfitter/guide use. Then, despite 

the lack of a connection between guided public use and non-wilderness encounters, the 

analysis assumed it could address these problems through a broad 25% reduction in guided 

public access to Wilderness. 

e. Alternative 4 allows for growth only in Large Group Areas or areas well outside 

most RSNT SCV travel routes 

Alternative 4 would allocate a total 130,655 days for guided public use overall, or 20 

percent of the total estimated capacity in order to emphasize support for local and regional 

economies by increasing outfitter/guide opportunities. [FEIS at 2-12]. The FEIS assumes 

this Alternative would allow for growth and stability by applying a five percent increase to the 

guided public use allocation under the Proposed Action. [Id.] This level of guided public 

access is less than half the amount authorized under the Forest Plan, which provides that 

you “[g]enerally allocate no more than one-half the appropriate capacity of the LUD to 

outfitter/guide operations.” [TLMP at 4-46]. The Forest Service excluded a 50 percent 

outfitter/guide capacity allocation based on the assumption that this level of use would 

exceed demand for outfitter guide services and projected capacity when combined with 

unguided public uses, and would negatively impact communities through competition for 

recreational activities. [FEIS at 2-3]. 

Forest Service staff recognized that, because of the TLMP guideline, “allocations of far 

less than ... 50% should be based on a documented rationale.” [PR 0028]. The 

Ketchikan/Misty Fiord’s ranger district’s FEIS considered an alternative designed to meet the 

TLMP guideline but concluded that it would have “the highest level of impact on resources 

and unguided users, while at the same time not meeting the interests of outfitters and guides 

in many areas – desired social conditions and visitor experiences could not be provided to 

guided or unguided visitors at this level of guided use.” [Forest Service. 2012. R10-MB-737a 

ROD at 18; PR 793_0273 at 31 (FEIS)]. Their rationale for not selecting a 50% 

outfitter/guide service day allocation was reasonable. The Boat Company did not request an 

alternative that meets the maximum guided public access guideline under the TLMP. 11 The 

Boat Company did suggest, however, that a reasonable alternative could allocate up to 

roughly 35% of the available service days to the guided public as an economic growth 

 

11 The Petersburg Ranger District Outfitter and Guide Management Plan was the only analysis that 

responded to the visitor industry needs with an alternative that proposed comparable level of 

outfitter/guide service day allocation (11%). [Forest Service. 2009. R10-MB-706 at 2-5]. However, it 

is important to note that existing use was 1.2% of existing capacity, so that the allocated use was 

significantly (nearly 10x) higher in order to allow for industry growth. [Id. at 2-5, 2-18]. 
34

alternative. This proposal was reasonable, and corresponded to the Selected Alternative for 

the KMRD Outfitter and Guide Management Plan which allowed for industry stability and 

growth. The FEIS never responded to this comment or considered a higher growth 

alternative. The Boat Company reiterates that a higher service allocation should be part of 

an alternative that maximizes growth opportunities. 

The Forest Service intended that Alternative 4 address a “specific focus on supporting 

local and regional economies by recommending increased commercial opportunity for 

outfitter and guide businesses to operate in the shoreline zone based on observed visitor 

trends.” [PR 0183 at 2 (Grewe 2015)]. The Regional Economist found that “total visitation, 

cruise visitation, small cruise vessel capacity, and guided client use of the Tongass National 

Forest is increasing two to six percent each year.” [Id.]. She recommended that a five 

percent increase in visitor capacity allocation would accommodate a growing visitor industry. 

[Id.]. The Forest Service utilized primarily available data on cruise ships but did not have 

data to measure small passenger vessels – “[t]ourism is definitely on the rise, it’s just 

debatable the rate of increase.” [PR 0017 (Grewe)]. The Forest Service decided to use cruise 

volume as proxy for all use even though staff questioned whether the analysis sufficiently 

explored whether 5 percent was the right number. [Id.; PR 020]. 

Alternative 4 would provide 27.4 percent of the estimated capacity for all areas during 

the summer season and 15.6 percent of the estimated late spring capacity for guided public 

use. A critical problem, however, is that the broad-based formula for calculating growth did 

not reflect demand for guided use and quality experiences by considering actual use trends 

and particularly cruise routes and itineraries used by many RSNT SCV operators as well as 

significant operational constraints. For example, much of the increase in service day 

allocations occurs in areas well outside the normal travel routes for many RSNT SCV 

operators. The most significant increases in guided use under Alternative 4 occur in the 

northernmost Use Areas or other Use Areas which are far from primary cruise routes (01-01 

– 01 -05A; 04-15A; cf. PR 793_0869, 0895], and receive little actual guided use by RSNT 

SCVs. It is logistically impossible for operators like The Boat Company, which conduct tours 

between Sitka and Juneau, to take advantage of enhanced access to these areas. Alternative 

4 also allows for significantly increased guided public use – up to 41 percent of estimated 

capacity - in heavily used non-Wilderness Use Areas in Peril Strait, Kelp Bay and Rodman 

Bay. As explained in Section II.B.2, concentrating guided public use in these areas does not 

meet public demand for Wilderness experiences and will make it more difficult for operators 

to coordinate their itineraries in a way that reduces crowding in these areas. 

Moreover, the FEIS ignores obvious operational constraints that make it difficult, if not 

impossible, for operators to shift their itineraries from existing cruise routes. It requires 

considerable expenditures to operate cruises, particularly for fuel. [PR 793_0884 at 39]. It is 

logistically impossible for trips originating in Petersburg and Sitka to incorporate Lynn Canal 

into cruise routes. The Boat Company, and likely other tour operators, would have to 

conduct pre-season cruises without passengers. This procedure would add substantial fuel 

and salary costs. 

 Redirecting cruise routes to the outer coast is even more infeasible. Weather and sea 

conditions along the outer coast can offer challenging, and at times, unsuitable conditions 

for small passenger vessels on a fixed schedule. [Cf. PR 793_0897, 0898 (National Weather 

Service 2016 and 2016a (marine forecasts)) (showing that outer coast conditions can be 

hazardous for up to a week with seas in excess of ten feet, while sea conditions along existing 

cruises routes feature much calmer seas, except for near ocean entrances, which are at the 

outer bounds of the range of most cruise operators)]. 
35

In other words, Alternative 4’s overall summer season guided use allocation of 27 

percent of estimated capacity is misleading with regard to business stability and growth 

potential for two reasons: (1) the guided public will be unable to access areas of potential 

growth due to the logistical infeasibility for operators or (2) opportunities in more crowded 

areas that overlap with timber LUDs will not provide the type of quality experience marketed 

and provided to guided visitors. The Boat Company submits that a growth alternative should 

provide for increased opportunities for the guided public in areas that those visitors can 

access and receive a high quality recreation experience. Notably, the Ketchikan/Misty Fiords 

outfitter/guide plan FEIS identified specific areas used by the guided public and then 

analyzed growth opportunities with reference to those specific areas. [PR 0273 at 108-110]. 

 As the record shows, the Forest Service acknowledges that “[m]ost of our use areas 

address growth except for wilderness areas. There will be a big disparity between wilderness 

and non-wilderness averages.” [PR 0017]. Alternative 4 is very restrictive for many 

Wilderness Use Areas, and would not provide guided visitors with reasonable access to 

quality primitive and unconfined recreation experiences in Wilderness, most notably in the 

Tracy Arm-Ford’s Terror and Chuck River Wilderness Areas. For many Wilderness Use 

Areas, the entire range of alternatives limits summer season guided public use to between 7 

percent and 16 percent of estimated capacity. 

3. Conclusion and suggested resolution 

The Selected Alternative will be the most restrictive guided public recreation plan on 

the Tongass National Forest in terms of providing growth opportunities for the visitor 

industry. The Ketchikan/Misty Fiords Ranger District’s plan allocated 41,234 summer 

service days to the guided public over a 3.2 million acre project area. The Shoreline II project 

area is nearly twice as large, yet the guided public summer service day allocation under the 

Proposed Action slightly exceeds 50,000 days after deducting areas that are inaccessible and 

rarely utilized by the guided public (north outer coast and Lynn Canal). Thus, other Tongass 

National Forest ranger districts, all of which deal with the same concerns about crowding 

and popular local use areas, have been able to allocate substantially more service days to 

guided recreation than the Proposed Action for Shoreline II while still addressing site-specific 

concerns from unguided public recreationists and subsistence users. 

The FEIS failed to consider a range of alternatives that provides for reasonable 

minimum and maximum resource potential uses, violating NEPA. The Reviewing Officer 

should remand the draft ROD and FEIS to the Responsible Official with instructions to 

prepare reasonable range of alternatives using Shoreline I and the Ketchikan/Misty Fiords 

plan as models, with the Selected Alternative as the “low use” alternative and at least two 

alternatives that provide guided visitors with a larger proportional share of visitor capacity, 

particularly in Wilderness Use Areas accessible to and used by RSNT SCVs. 

 B. Objection Point 7: The Draft ROD and FEIS violated NEPA by refusing to analyze or 

consider wilderness solitude zoning 

The Boat Company’s initial scoping comments expressed concern that restrictions on 

guided visitor access to Shoreline II Wilderness Areas as part of the Forest Service’s effort to 

create additional opportunities for solitude Wilderness areas adjacent to Inside Passage 

marine travel routes. The Boat Company then provided the Forest Service with the extensive 

amount of scientific literature recommending finer-scale Wilderness zoning as an effective 

way to balance solitude opportunities with the public recreational purposes of the Wilderness 

Act. The Boat Company explained that the most important concept that the NEPA analysis 

should analyze and consider is finer scale wilderness zoning as has been done by numerous 
36

wilderness managers throughout the country, including southern and central Tongass 

National Forest ranger districts. Providing different recreation opportunities in Wilderness 

can achieve the most appropriate balance between commercial recreation and the majority of 

legitimate public uses of Wilderness in a way that still provides sufficient area for solitude 

seekers to be alone in Wilderness. This was a simple solution chosen by most Wilderness 

managers for ease of implementation and effectiveness at addressing the issues Shoreline II 

staff identified – and the Responsible Official refused to consider it. 

1. Statement Referencing Prior Written Comments and Content of Objection and 

Explaining How Decision and/or Analysis Specifically Violate Law or Regulation 

The Boat Company’s DEIS comments explained that NEPA required the Forest Service 

to include Wilderness zoning options in further NEPA analysis as part of the range of 

alternatives and to meet NEPA’s analytical requirements. [PR 793-0845 at 13 – 16]. The 

FEIS declined to consider wilderness zoning because “developing an alternative for zoning 

wilderness areas is outside the scope of the project” and would require considering the entire 

wilderness area. [FEIS at 1-18; Appx. E at E-28]. The FEIS then argued that the Shoreline II 

project area “only encompasses the general 1⁄2 mile zone from mean high tide inland.” [Id. see 

also Appx. E at E-27-28]. 

The failure to consider Wilderness zoning violated NEPA. NEPA requires agencies to “ 

... ‘[s]tudy, develop, and describe appropriate alternatives to recommended courses of action 

in any proposal ....” [40 C.F.R. § 1501.2(c)]. The alternatives requirement is critical to serving 

NEPA’s primary purposes of ensuring fully informed decisions and providing for meaningful 

public participation in environmental analyses. [See 40 C.F.R. § 1500.1(b),(c), § 1502.1; 

California v. Block, 690 F.2d at 767]. Only by studying a reasonable range of alternatives can 

the agency adequately compare the environmental impact of its proposed action, and allow 

the public to weigh in on alternative courses of action. [See 42 U.S.C. § 4332]. By 

examining both the environmental impacts of the desired path and the impacts of other 

reasonable alternatives, NEPA enables an agency, and the public it serves, to evaluate 

whether the government has other options it could take. [Headwaters, Inc. v. Bureau of Land 

Mgmt., 914 F.2d 1174, 1180 (9th Cir. 1990); California v. Block, 690 F.2d at 767]. The FEIS 

violates NEPA by failing to consider a viable and unexamined alternative that would 

appropriately respond to the stated purpose of balancing guided and unguided visitor 

recreation use. [FEIS at 1-6; Nat. Res. Def. Council v. U.S. Forest Service, 421 F.3d at 813]. 

The Shoreline II FEIS considered only alternatives that would address the Forest 

Service’s interest in reducing off-wilderness impacts to Wilderness solitude by restricting the 

number of service days allocated to guided visitors along cruise routes. A “reasonable” range 

of alternatives includes alternatives “that are practical or feasible” from a technical 

standpoint “and using common sense” and not just those alternatives preferred by the 

agency. [Council on Environmental Quality (CEQ), Forty Most Asked Questions, Questions 

2A and 2B; 40 C.F.R. §§ 1502.14, 1506.2(d).12 Reasonable alternatives can be 

distinguishable based on different approaches “to resolving the purpose and need for action” 

and “should represent substantively different options for the decision maker to consider, as 

opposed to simply representing different designs of a substantively equivalent option.” [Exh. 

10 at 52 (NPS 2015)]. Agencies should not conclude that an alternative is “unreasonable 

simply because it would be challenging or expensive to implement.” [Id. at 53].

Here, the Responsible Official is the proponent of an approach that solely relies on 

guided visitor service day cuts in Use Areas to address the interests of Wilderness solitude 

 

12 CEQ Forty Questions, Question 2a. Available at http://ceq.hss.doe.gov/nepa/regs/40/40p3.htm
37

seekers. Shoreline II ranger districts may not want to implement Wilderness zoning, but it is 

clearly practical and feasible from a technical standpoint and particularly when “using 

common sense.” The reasons for refusing to consider this approach are thus arbitrary, and 

violate NEPA. 

Further, the Responsible Official’s rejection of wilderness zoning relied on an overly 

narrow geographic scale, which in turn limited the agency’s consideration of alternative 

means to create additional opportunities for solitude seekers. The FEIS overly narrowed the 

Forest Service’s objective of creating solitude opportunities to areas 1⁄2 mile inland, even 

though the FEIS references the Forest Plan objective of managing recreation settings for 

“each LUD.” [FEIS at 1-3, 1-6; Land and Resource Management Plan at 2-4, 4-45 (“Manage 

recreation use in a manner that is compatible with the long-term objectives of the LUD. 

Maintain the capability of all LUDs to provide quality recreation opportunities on a sustained 

basis.”]. But here the FEIS would primarily consider those portions of the Wilderness LUD 

adjacent to marine waterways, and fails to evaluate whether it can achieve the desired 

recreation setting within the context of the entire LUD. 

An agency “cannot define its objectives in unreasonably narrow terms.” [City of 

Carmel-by-the-Sea v. U.S. Dep’t of Transportation, 123 F.3d 1142, 1155 (9th Cir. 1997). As 

explained by the 7th Circuit: 

One obvious way for an agency to slip past the strictures of NEPA is to 

contrive a purpose so slender as to define competing “reasonable alternatives 

out of consideration (and even out of existence). The federal courts cannot 

condone an agency’s frustration of Congressional will. If the agency constricts 

the definition of the project’s purpose and thereby excludes what truly are 

reasonably alternatives, the EIS cannot fulfill its role. Nor can the agency 

satisfy [NEPA]. 42 U.S.C. § 4332(2)(E). [Simmons v. U.S. Army Corps of Eng’rs, 

120 F.3d 664, 666 (7th Cir. 1997)]. 

In Simmons, a municipality sought permission to build a dam and water reservoir to 

address local water shortages. [Simmons, 120 F.3d at 666-67]. The Corps of Engineers and 

project applicant then identified only one potential water source, and defined the project 

purpose as “finding or creating a single source” to meet water supply needs. [Id. at 667-68]. 

The court recognized that the single source alternatives may be an appropriate solution. [Id. 

at 669]. But the court faulted the Corps for relying on one alternative without “testing its 

presumption” that only a single source could meet the purpose and need. [Id. at 670]. The 

court explained that “supplying Marion and the Water District from two or more sources is 

not absurd - which it must be to justify the Corps’ failure to examine the idea at all,” 

particularly since another source through a shorter pipeline from a different lake was 

feasible. [Id.] 

Here, the Forest Service seeks to balance the interests of unguided solitude seekers 

with the interests of guided visitors in high quality recreation experiences. The Forest 

Service never tested its presumption that it could only meet the purpose and need by broad 

reductions in visitor access. Given the consensus in the scientific literature and the use of 

Wilderness zoning by southern Tongass National Forest ranger districts, wilderness zoning is 

“not absurd.” The Forest Service violated NEPA and the APA by arbitrarily defining the scale 

of the project so as to preclude this discussion. [Idaho Sporting Congress v. Rittenhouse, 305 

F.3d 957, 973 (9th Cir. 2002)(stating that “the choice of an analysis scale must represent a 

reasoned decision and cannot be arbitrary”)(citations omitted)]. Even the reduced scale does 

not excuse the refusal to consider The Boat Company’s suggested alternative - an agency 

must “consider such alternatives to the proposed action as may partially or completely meet 

the proposal’s goal.” [City of New York v. U.S. Dep’t of Transp., 715 F.2d 732, 742-742 (2nd

Cir. 1981)]. 
38

Finally, the draft ROD is arbitrary because it violates NEPA by failing to ensure the 

professional and scientific integrity of the government’s methodology. [40 C.F.R. § 1052.24]. 

The Shoreline II FEIS cherry-picks one component of the vast literature regarding Wilderness 

solitude to drive its service day allocations – impacts from non-Wilderness areas – and then 

arbitrarily declines to consider the scientifically supported solution to addressing those 

impacts. 

2. Statement of supporting reasons 

Wilderness zoning is a practicable and reasonable alternative under NEPA. Within 

several decades after the enactment of the Wilderness Act, wilderness managers began to 

consider zoning as an approach that can best address the issues that the Shoreline II 

process seeks to address: 

 “[b]ecause of varying conditions, various sections of practically every 

designated wilderness must be managed differently. We believe that sustained 

opportunities to realize both wilderness benefits and resource preservation – as 

well as providing opportunities for wilderness use – are more likely to be 

achieved if management zoning is planned explicitly rather than informally and 

implicitly.” [PR 0133 at 17 (Haas et al 1987)]. 

There is thus a substantial amount of wilderness management literature that 

recommends establishing different zones with different indicators for different parts of the 

wilderness to define desired conditions using a progressively more restrictive encounter 

standard. [Id. at 19; PR 0269 (Cole and Hall 2006); PR 0278 at 188 (Roggenbuck & Dawson 

1993)]. One visitor study found that “[t]he vast majority of visitors supported zoning, 

selecting options that involve managing for variable conditions within wilderness.” [PR 0269 

(Cole and Hall 2006)]. This approach recognizes that: 

Any wilderness area contains a diversity of physical-biological features, 

evidence of recreation and other human uses, and type of wilderness 

experiences. The type of management needed will also vary throughout an 

area. Opportunity classes describe subdivisions or zones of wilderness where 

different resource, social and managerial conditions will be maintained. These 

classes represent a way of defining a range of diverse conditions within the 

wilderness. [PR 0282 (Stankey et al. 1985) at 528]. 

Many wildernesses have established opportunity classes. [Exh. 18 at 15 (Forest 

Service 2014a]. The number of zones can vary to reflect the diversity of resources and 

human uses. [PR 133 at 20 (Haas et al 1987)]. Wilderness managers here have used both 

two- and multi-zone wilderness recreation opportunity classes to inform encounter 

standards. The Ketchikan-Misty Fiords Ranger District designated the majority of its 

wilderness acreage as a Primitive Wilderness Zone using a standard of no encounters per day 

during a trip 90% of the time. [PR 0274 at 5 (Forest Service 2012)]. The second zone 

encompasses shoreline access areas in a Semi-Primitive Wilderness Zone, which uses a 

standard of no more than two encounters per day during a trip 90% of the time. [Id.]. 

Similarly, the Wrangell Ranger District divided the South Etolin Wilderness into two solitude 

zones – the Shoreline Zone (using a quarter mile buffer from the ocean), where there is a 

moderate probability of experiencing isolation from April to November and the Upland Zone, 

where there is a high probability of experiencing isolation during the whole year. [Exh. 10 at 

7-12 (Forest Service 2010)(also explaining the more complex, multi-zone scheme used for the 

Stikine-Leconte Wilderness based on a broader range of uses and thus isolation experience 

probabilities)]. 
39

The Tongass National Forest implemented these zoning schemes with little or no 

controversy.13 The Ketchikan-Misty Fiords and Stikine-Leconte plans reflect a contemporary 

and balanced response to the difficulty of managing wilderness when there are “transition” 

areas, where proximity to transportation corridors, developed recreation facilities at the 

edges, or population centers tend to increase wilderness use. [PR 0133 at 18 (Haas et al. 

1987); PR 440 at 5 (Broom & Hall 2008) (describing pristine zones using a ≤1 encounter per 

day standard, and increased flexibility in transition zones)]. This approach still provides for 

solitude opportunities as “frontcountry wilderness borders buffer less accessible 

backcountry areas from excessive impacts, and provide inexperienced and casual visitors 

with non-mechanized recreation experience opportunities, and exposure to wilderness” [PR 

0132 (Behan et al 2000)]. 

Indeed, an objective review of the wilderness literature in the record shows a 

consensus among wilderness scholars that providing for a diversity of wilderness recreation 

opportunities achieves a more appropriate balance between managing for solitude and 

providing primitive recreation opportunities and addresses varying visitor perceptions of 

wilderness solitude. [PR 0132 (Hall and Cole 2000) (discussing how wilderness zoning can 

minimize total displacement of all users; PR 0278 (Roggenbuck & Watson 1993) (explaining 

that wilderness zoning can address the considerable variation in visitor standards for 

acceptable conditions within wilderness and thus provide for different clientele groups and 

experiences; [PR 793_0902 at 12 (Freimund and Cole comps. 2001) (“a decision to give 

preference to one user group over another is less discriminatory if the other user group is 

given preference somewhere else” and “maximize[s] as wide a range as possible of individual 

definitions of quality”; Lucas (1989) at 46 (“Variations in use intensity can provide a range of 

solitude experiences to match different visitors’ desires”). 

The EIS even admits that “wilderness zoning is acceptable and even ideal, but will 

have to occur as a separate exercise than Shoreline II.” [Appx. E at E-28]. If wilderness 

zoning is ideal, it is unreasonable to refuse to incorporate in the analysis. Shoreline II staff 

even recognized that this option was viable, but deemed it to be too much work: 

Another solution might be to allow commercial OG use in the Shoreline zone 

since that zone already features substantial traffic/encounters but to disallow 

or minimally allow commercial use inland. This would either require an 

additional EIS or additional work/expansion of Shoreline II. This requires more 

time/investment but might also be worthwhile in the long run. [PR 0216]. 

The suggestion that Wilderness zoning is too much work is unreasonable. Wilderness 

zoning is so common – even on the Tongass National Forest – that there are readily available 

models that are simple to implement. Indeed, the Forest Service could have even considered 

a very simple, two-zone approach that distinguishes the shoreline from upland areas, and 

adopted or responded to public comment by developing site-specific encounter standards for 

the few popular upland recreation experiences on Admiralty. 

The FEIS states that “establishment of wilderness management zones requires 

consideration of the entire wilderness area.” The scope of the Wrangell and Misty-Fiords 

outfitter/guide environmental impact statements covered the entirety of the wilderness areas 

within the project area, which allowed for zoning regimes to be adopted.” [Appx. E at E-27]. 

But because “Shoreline II focuses on areas preferred by outfitter/guides and doesn’t cover 

entire Wilderness areas, it is not an appropriate instrument for zoning.” [Id. at E-28]. This 

 

13 There was only one administrative appeal of the Ketchikan-Misty Fiords Ranger District’s plan and it 

did not question the zoning approach. 
40

statement is inconsistent with the Forest Service’s own objectives for Shoreline II – to 

“manage recreation settings within standards and guidelines for each LUD.” [FEIS at 1-3]. 

But at the same time, the FEIS extends the geographic scope of the analysis in several 

significant ways – it includes a large portion of inland Baranof Island Wilderness areas used 

for guided hunting and freshwater fishing. [Id.]. Overall, the area encompassed by the 

analysis is roughly 1.3 million acres, meaning that the FEIS never considered available 

solitude opportunities on roughly 1 million acres, or 45 percent of the Wilderness LUD within 

Shoreline II Wilderness Areas. [Id. at 3-18]. In particular, the FEIS fails to consider whether 

solitude opportunities exist on over three-fourths of Admiralty Island (560,000 out of 

724,000 acres). [Id.]. 

And then, the analysis explicitly incorporates marine waters into its visitor capacity 

estimates. Thus, while the FEIS claims that “marine waters” are not part of the analysis, but 

the Visitor Capacity Analysis extends its geographic scale three miles out to sea: 

Since this analysis is focusing on the social experience as the limiting factor, 

this means that Outstanding Opportunities for Solitude is the most sensitive 

indicator for wilderness character and that protecting it should ensure that the 

other qualities fare well. In order to uphold Outstanding Opportunities for 

Solitude in wilderness, this analysis applies a three mile buffer around 

recreation use sites, for all seasons, to provide adequate spacing between 

groups. Three miles is used as the buffer distance because: 

 It represents the ROS Remoteness setting standard of being beyond 

the sights and sounds of other human activity. 

 It is the approximate distance at which kayaking groups lose sight of 

one another (David Burch, Fundamentals of Kayak Navigation); 

kayaking is a common wilderness experience sought within and/or 

adjacent to the analysis area. [PR 793_0054 at 7]. 

How can kayaking be a wilderness experience when it occurs in state waters outside of 

federal Wilderness? The Boat Company recognizes the Forest Service’s position that the 

analysis must consider how activities adjacent to Wilderness impact solitude seekers within 

Wilderness. [FEIS, Appx. E at E-42]. But here, the Forest Service extends its analysis area 

three miles outside of Wilderness while arbitrarily shrinking the actual amount of Wilderness 

area available for solitude seekers by nearly half. The rationale for refusing to consider 

upland areas is arbitrary. 

3. Conclusion and suggested resolution 

The Forest Service’s objective is to manage recreation settings within each LUD, but 

the FEIS arbitrarily refuses to consider significant portions of Shoreline II Wilderness LUDs 

available to solitude seekers. The draft ROD relies on an FEIS that arbitrarily narrowed the 

geographic scale of the analysis, resulting in an overly narrow purpose and need. As a 

result, the Responsible Official refused to consider an alternative that even Shoreline II staff 

recognized as an “ideal” way to meet the project purpose of balancing guided and unguided 

visitor use. Further, the refusal to consider a methodology widely recognized by the 

wilderness literature as the best approach to achieve a balanced range of recreation 

opportunities failed the Forest Service’s NEPA obligation to ensure the scientific and 

professional integrity of its analyses. The draft ROD is thus arbitrary because it relies on an 

FEIS that violates NEPA. 

The Boat Company requests that you remand the draft ROD and FEIS to the 

Responsible Official with instructions to make Wilderness zoning a component of all action 
41

alternatives. At a minimum, further NEPA analysis should consider some type of 

Shoreline/Upland solitude zoning such as the management approach adopted by the 

Wrangell and Ketchikan-Misty Fiords Ranger Districts. The analysis should also discuss 

more complex schemes, particularly for larger wildernesses (i.e. Admiralty). 

C. Objection Point 8: The FEIS ignores the needs of guided visitors 

Shoreline II wilderness areas include scenic features and outstanding recreation 

opportunities for viewing glacial fjords, iconic wildlife species, low-elevation old-growth 

forests undisturbed by past logging, and other natural, untrammeled and undeveloped 

qualities. [FEIS at 3-25-3-28]. The Shoreline II Wilderness Needs Assessments have all 

determined that RSNT and other non-motorized recreation activities are needed to meet the 

public purposes of and management objectives for the Wilderness areas and thus support 

the use of commercial guides to enhance public access. [Id. at 3-28].14 The overwhelming 

majority of the comments on the DEIS were from visitors outside of Alaska who utilize the 

services of RSNT SCVs – 93 people from 25 states and two foreign countries. [Id., Appx. E at 

E-2 – E-5]. 

1. Statement referencing prior written comments and content of objection and explaining 

how decision and or analysis specific violate law or regulation 

The Boat Company’s first set of scoping comments requested that the Forest Service 

consider impacts on non-resident visitors as a significant issue. [793_0147 at 7]. The DEIS 

comments then began by raising concerns about guided visitor access and identified specific 

Use Areas where the draft ROD’s Selected Alternative would reduce their access in some of 

the most scenic and accessible Wilderness Use Areas. [PR 793_0845 at 4-6]. The Boat 

Company thus requested that further NEPA analysis consider the needs of the thousands of 

Americans who require the services of outfitter/guides to access high quality remote 

recreation experiences. [Id.]. 

NEPA requires agencies to use the scoping process to identify significant issues for indepth analysis in an EIS and then discuss those issues in proportion to their significance. 

[40 C.F.R. § 1501.7, 1502.2(b)]. The purpose of this process is to focus the impact analysis 

on issues of critical importance that require detailed analysis in order to make a reasoned 

choice between alternatives, or issues that are a “big point of contention among the public or 

other agencies.” [Exh. 10 at 50-51]. 

The Forest Plan does not distinguish between the guided and unguided public. But 

the FEIS omits any discussion of how the proposed outfitter/guide service day allocations 

would reduce opportunities for the guided public to access a Wilderness recreation 

experience. The analysis instead focuses on outfitter/guides, local recreationists, and 

solitude seekers. Forest Plan standards and guidelines require that you consider “access ... 

and other needs of the tourism industry at the project level” and “incorporate these needs 

into project design and implementation.” [2016 LRMP at 4-42]. The Forest Plan recognizes 

 

14 The Petersburg Ranger District considered an alternative, that, like the Proposed Action for 

Shoreline II, would have reduced outfitter/guide service day allocations within its Wilderness Areas, 

but eliminated the alternative: 

... there is no need to further reduce or restrict use by commercial outfitters in 

wilderness on PRD. Also, restricting commercial use in wilderness would contradict the 

Commercial Services Needs Assessments completed for the three wildernesses on the 

district. The Needs Assessments support the use of commercial guides to help the public 

access wilderness for some activities. [Forest Service. 2009. R10-MB-706 at 2-19]. 
42

that commercial services are appropriate for realizing Forest Plan objectives for Wilderness 

recreation. [Id. at 44]. Wilderness and National Monument Wilderness goals also direct 

forest managers, in part, to “[p]rovide ... opportunities for solitude or primitive recreation 

activities consistent with Wilderness preservation.” [Id. at 3-4]. Objectives include to 

“[p]rovide for public uses of Wilderness as authorized in the Wilderness Act ....” [Id.] The 

desired condition is that: 

All designated Wilderness on the Tongass National Forest is characterized by 

extensive, unmodified natural environments. Ecological processes and natural 

conditions are not measurably affected by past or current human uses or 

activities. Users have the opportunity to experience independence, closeness to 

nature, solitude and remoteness, and may pursue activities requiring selfreliance, challenge, and risk. ... Allow for access to state and private lands, 

subsistence uses, and public access and other uses to the extent provided for 

by ANILCA. [Id. at 3-5 (emphasis added)]. 

Although the draft ROD’s Selected Alternative reduces visitor opportunities in key 

Wilderness Use Areas relative to the 2004 Shoreline I ROD, the FEIS arbitrarily determined 

that guided public access was not a significant issue. [FEIS at 1-18]. The Draft ROD is 

arbitrary because it relies on an FEIS that failed to consider significant issues and worse, 

failed to disclose impacts to guided visitors. 

2. Statement of supporting reasons 

The majority of the comments on the DEIS were from guided visitors who expressed 

appreciation for their experience in specific Wilderness Use Areas, such as Tracy Arm, Ford’s 

Terror, Dawes Glacier, Pybus Bay and Gut Bay. [See, e.g. PR 793_0726 – 0788]. The FEIS 

asserts that guided visitor access to Wilderness was not a significant issue by relying on a 

“167 – 344 percent increase over actual use in all Wilderness areas.” [FEIS, Appx. E at E38]. However, the FEIS also acknowledges a “more varied range” among specific wilderness 

areas. [Id.]. Indeed, the actual use assertion relies on incorporating a massive outlier – a 

2,628 percent increase in West Chicagof/Yakobi Island Wilderness Use Areas. [Id.]. RSNT 

SCV operators do not utilize these Use Areas; RSNT use of the three of those Use Areas 

combined amounted to a total of ten clients. [PR 793_1288 at 114-120]. Also, as previously 

noted, it is unreasonable for the Forest Service to suggest it will allow for increased access at 

Pybus while at the same planning a prospectus to manage use. Thus, the FEIS masks the 

actual impacts by relying on an arbitrary presentation of the data. 

The FEIS also asserted that effects to guided visitors was not a significant issue 

because concerns about guided public access were addressed in the development of a 

separate capacity formula for wilderness areas, and in the effects analysis. [FEIS at 1-18]. 

This comment did not respond to The Boat Company’s concern. The separate capacity 

formula does not analyze the effects of reduced access by the guided public. The effects 

analysis in the socio-economic section considers only the non-guided public and limits its 

consideration of impacts on the guided public to economic impacts on outfitter/guides. [Id.

at 3-15]. 

Although the response to comments in Appendix E suggests that the Forest Service 

attempted to provide opportunities for guided visitors through an arbitrary comparison of 

actual use data, the Recreation Resource Report makes clear that the agency is reducing 

service day allocations in specific Wilderness Use Areas in order to to divert guided visitors to 

other areas in order to enhance unguided recreation activities. [See, e.g. PR 793_1288 at 

162, 164, 197-199]. The FEIS indicates that most unguided recreation consists of local 

residents by tying unguided recreation use levels to population growth and through 
43

references to “local residents” and “local unguided users” in its discussion of unguided 

recreation. [FEIS at 3-15, 3-55]. Thus, it is clear that the Selected Alternative seeks to 

reduce guided visitor access to the Use Areas they appreciate most based on the Forest 

Service’s assumption that an unquantified number of local residents would have an 

enhanced experience through near-exclusive use. 

The Forest Service interprets the Wilderness Act to mandate this result. [FEIS, Appx. 

E at E-38]. But even if this were correct, NEPA does not permit the Forest Service to forgo an 

analysis that omits impacts to guided visitors. The Wilderness Act’s recreational purposes 

extend well beyond the interests of communities adjacent to Wilderness Areas. Congress 

enacted the Wilderness Act “to secure for the American people of present and future 

generations the benefits of an enduring resource of wilderness” administered “for the use and 

enjoyment of the American people.” [16 U.S.C. § 1131 (emphasis added)]. 

RSNT SCV operators are essential to meeting the recreational and educational 

purposes of designated Wilderness areas in the Tongass National Forest as well as meeting 

the desired conditions for those areas. For example, the TLMP goal for the Admiralty 

National Monument was in part “to ensure continued opportunities for study of Admiralty 

Island’s ecology and its notable cultural, historical, and wildlife resources, within its 

relatively unspoiled natural ecosystem.” [Id. at 3-7]. For many visitors, outfitter/guides are 

the primary means to meet desired National Monument conditions: “[a]ppropriate interpretive 

and educational efforts allow the public to better understand the resources of these special 

areas.” [Id. at 3-8]. Similarly, management direction for the South Baranof Wilderness 

explicitly states that “[t] he Forest Service will also provide the opportunity for the public to use 

and enjoy the unique features and resources available within the Wilderness without adversely 

affecting the wilderness character.” [See, e.g. Forest Service. 1983. Doc. Number 126 at 

1(emphasis added)].

In light of the remote and challenging use conditions prevalent in the project area, 

non-resident visitors require the services of outfitter/guides. [2016 Tongass LRMP FEIS at 3-

357, 3-371]. It explains that “commercial activities ... make it easier for the public to visit 

National Forests” and “outfitters and guides provide access and equipment to assist people 

who might not otherwise be able to pursue certain recreation activities on the Forest.” [Id. at 

3-371]. Southeast Alaska lacks road access or other publicly supported access opportunities 

for recreational activities in large portions of Shoreline II ranger districts, meaning that the 

commercially guided experience is virtually the only option for the vast majority of Americans 

wishing to visit. Well over half a million visitors utilize the services of outfitter/guides each 

year to access recreation opportunities on the Tongass National Forest. [FEIS at 3-12]. 

Many of these visitors specifically seek a Wilderness experience, and it was unreasonable for 

the FEIS to restrict their access without analyzing the impacts of forcing guided visitors into 

areas that provide a lower quality experience. Moreover, because Wilderness outfitter/guides 

educate visitors on conservation and wilderness values, the restrictive approach reduces 

opportunities to maintain, let alone increase, the number of Americans who appreciate, and 

advocate on behalf of, Tongass National Forest wilderness values. 

For Wilderness Use Areas during the summer season, the Proposed Action allocates 8 

percent of the estimated visitor capacity to outfitter/guide use in the Juneau Ranger District, 

8.7% of the estimated capacity in the Sitka Ranger District, and 14.6% of the estimated 

capacity in southern Admiralty Use Areas (Use Areas 04-05A, 04-06A, 04-06B and 04-07A). 

This approach limits opportunities for guided visitors to experience and learn about 

Wilderness through interpretive and educational efforts provided by The Boat Company and 
44

other businesses that seek to provide a high quality Wilderness experience and conflicts with 

Forest Plan objectives and standards. 

 3. Conclusion and suggested resolution 

The draft ROD’s Selected Alternative reduces the availability of high quality recreation 

experiences to non-Alaskans. The Proposed Action would provide them a lower quality 

experience at non-Wilderness destinations or into areas zoned for larger groups, or even for 

timber production. The FEIS never fairly analyzed adverse impacts to the thousands of 

Americans who utilize the services of outfitter/guides to access recreational experiences in 

public lands owned by them in common with unguided recreationists, violating NEPA and 

the APA. The Reviewing Officer direct the Responsible Official to prepare additional NEPA 

analysis that identifies the needs of the guided public for high quality, Wilderness recreation 

opportunities as a significant issue. 

D. Objection Point 9: The handling of the shoulder season is overly restrictive 

1. Statement referencing prior written comments and content of objection and xplaining 

how decision and or analysis specific violate law or regulation 

The TLMP FEIS recognizes that “diversity in the range of activities and types of 

recreation experience offered by outfitter/guide businesses can lead to conflicts between 

businesses when incompatible activities occur in close proximity.” [2016 LRMP FEIS at 3-

373]. The Draft ROD identifies conflicts between remote setting nature tours and bear 

hunting that overlap in time and space as the primary conflict occurring in Shoreline II Use 

Areas. [Draft ROD at R-12]. 

The Boat Company’s DEIS comments expressed concern about the lack of specificity 

regarding the relationship between the number of service days needed by bear guides and the 

late spring outfitter/guide overall service day allocations in the Selected Alternative. [PR 

793_0845 at 16-17]. The Boat Company questioned whether the Forest Service intended to 

exclude non-hunting guides because the overall late spring guided visitor service day 

allocations in some Use Areas are so small. 

2. Statement of supporting reasons 

The Boat Company’s tours typically begin on or about May 15th and do overlap 

temporally with the end of the hunting season. The Boat Company and other RSNT SCV 

operators make sincere efforts to be sensitive to the needs of bear hunting guides and avoid 

disturbing their activities, but at the same time, our scoping comments requested that the 

shoulder season use should not be overly restrictive for RSNT activities. As the FEIS notes, 

there is an increase in outfitter/guide use outside of the summer season. [FEIS at 1-6]. 

Thus, allowing for additional opportunity would clearly meet goals and objectives in terms of 

economic contributions and public demand for recreation opportunities. [Id.]. Alaska’s 

Division of Economic Development recommends expanding the season. [PR 793_0399 at 26]. 

The Draft ROD separates the spring season into “early” and “late” spring seasons and 

splits the service day allocations proportionally. [Id.]. However, for most the Use Areas 

where there is significant RSNT and hunting guide activity, the Forest Service’s data shows 

that both uses occur primarily, if not entirely, in late May. [PR 793_1288 at 45, 75, 78 – 80, 

82 – 84 (identifying May use trends for the Gut Bay, SW Admiralty, Pybus Bay, Eliza Harbor, 

Gambier Bay and Cross-Admiralty Use Areas]. In other words, the only season that is a 

relevant factor is the late spring season. 
45

For these Use Areas, the Draft ROD will allocate a set amount of service days to brown 

bear hunting guides. [FEIS at 2-14]. ADF & G’s Brown Bear Management Strategy 

established Guide Use Areas for brown bear hunting, which overlap with Shoreline II 

recreation Use Areas. [Id. at 3-117]. As the following table shows, the service days allocated 

to bear guides will preclude RSNT tour operators from accessing many Use Areas (Wilderness 

and non-Wilderness) along cruise routes during the late spring season when those operations 

commence:

Late Spring service days available for activities other than Brown Bear hunting

ADF & G Guide Use 

Area and (Shoreline II 

Use Area) 

Shoreline 

I 

Bear Guide 

Service Days

Alternative 2 Late 

Spring Service 

Days 

Available service 

days for other 

operators 

04-01( 04-01A, B) 260 68 145 77 

04-04 (04-04A, B, C) 375 88 190 102 

04-05 (04-05A) 206 128 60 -68 

04-06 (04-06A, B) 272 126 110 -16 

 04-07 (04-07A, B) 178 74 90 16 

Total 1,193 484 595 111 

As the above table shows, the division of the spring season into early and late spring 

results in a substantial cut in the number of service days available to divide among RSNT 

operators, bear guides, and other outfitter/guides who all begin operations primarily during 

the late spring season. While the FEIS is not specific as to how it will force bear guides to 

shift into the early spring, it appears conceivable or even likely that RSNT SCV operators and 

other outfitter guides would have 111 service days spread among nine Use Areas, with some 

of them closed entirely during the first two weeks of the SCV season. The Selected 

Alternative would reserve Admiralty Use Areas almost exclusively for bear guides. Then, the 

selected Alternative cuts guided visitor access to Juneau Ranger District Wilderness Use 

Areas in late spring – even though there is at most de minimis overlap between big game 

hunting and RSNT SCV tours in two of the Use Areas. [PR 793_1288 at 37 – 41 (showing, at 

most, 1 guided bear hunt per year per Use Area in May). 

Late Spring Guided Visitor Service Day Cuts: Juneau Ranger District Use Areas 

Use Area Shoreline I Highest 

recent use 

Alternative 2 Change in 

service days 

01-05D 56 8 35 -21 

01-05E 93 18 35 -58 

01-05F 131 118 85 -46 

 280 144 155 -125 

The late-spring service day allocation for Endicott Arm provides for 85 service days 

under the Proposed Action. Eight black bear guides use this area. [DEIS, Vol II, Appx. A at 

A-42]. At ten days per trip, the guides would utilize most or all of the available service days. 

The proposed action provides for only 75 days in Ford’s Terror and Tracy Arm combined for 

the late spring season. Notably, only one hunting guide uses Tracy Arm – in the fall. [Id. at 
46

A-35; see also id. at A-38 (two hunting guides use Ford’s Terror in the spring and fall 

season)]. These restrictive allocations provide another example of how the broad-based 

approach in the FEIS went wrong – the Proposed Action likely excludes guided visitor access 

to Endicott Arm to provide bear guides a monopoly, and then provides for even lower use of 

two adjacent Use Areas where there is less hunting pressure. 

The record shows that bear guides want exclusive use of their hunting areas. [PR 029 

at 2]. And the record shows that the Forest Service knew bear hunting would dominate the 

available outfitter/guide service day allocation during the late spring season: 

... do we not issue hunts because we don’t have service days available? 

We have already allocated out all the service days. Wasn’t there an average that 

was used, 7 or 9 days for brown bear hunting? We could easily come up with a 

number of service days available for brown bear hunting. Our hunts are in 

good shape but we are trying to reduce the number of guides for hunts. We 

need Shoreline to address other activities that will be happening in areas where 

hunting will be occurring. [PR 0017 (IDT, January 2015)]. 

The Boat Company also provides sport fishing activities and supports adequate service 

day allocations for operators such as bear and fishing guides that provide this type of 

recreational opportunity. But should there be a priority over other users based on 

Wilderness solitude values? The Shoreline II analysts even considered whether a hunting 

priority was appropriate: “[i]s the general public better served by one brown bear hunter in 

an area over a group of 12 wanting to view that bear? I’m not suggesting a preference, just 

saying that other uses besides bear hunting would be considered given the 7,000 miles of 

shoreline we looked at in the analysis. In the next go around for reviewing our environmental 

analysis should speak to some of this.” [PR 793_1184]. The Boat Company’s review of the 

record shows that the Forest Service’s biologist indicated some concern about the impacts of 

wildlife viewing and hunting on brown bear populations. However, The Boat Company is not 

aware of any scientific study showing that passive viewing impacts brown bears in the same 

way as hunting. The decision in the FEIS to prioritize bear guides over other outfitter/guide 

uses based on Wilderness values is arbitrary. 

 3. Conclusion and suggested resolution 

In sum, the Shoreline II FEIS generally resolves the issue of late-spring season 

conflicts between bear guides and other tour operators by providing hunting guides with near 

exclusive access, even though the Forest Service could have instead used less restrictive 

means, such as permit stipulations for small cruises that require avoidance of bays used by 

hunting guides. [See, e.g. PR 0029]. The Boat Company believes that guided hunting is a 

legitimate use of Wilderness. But the decision to prioritize “solitude” for a guided activity 

that permanently removes wildlife from Wilderness areas so as to exclude guided public use 

of the Wilderness resources that leave the wildlife resources remaining within the Wilderness 

is unreasonable. [See, e.g. 16 U.S.C. §1131]. If the Forest Service actually intends to resolve 

incompatible uses in favor of guided hunting over other guided activities, the analysis needs 

to explain why or how the “outstanding opportunities” clause of the Wilderness Act prioritizes 

the solitude of hunters who remove wildlife resources over the primitive recreation uses of 

the guided public who wish merely to view wildlife. 

The Boat Company submits that the Reviewing Officer should instruct the Responsible 

Official to redo the analysis of shoulder season conflicts and redo the late spring guided 

public service day allocations to allow for sufficient guided public access so that both bear 

guides and RSNT SCV operators can equitably share the available late spring service days. 
47

 IV. Objection Points re: Adaptive Management and Monitoring 

The Forest Service proposes to make adaptive management a component of all action 

alternatives. [FEIS at 2-14, 2-17, 2-34]. Adaptive management could occur when any “use 

area’s actual use data fall within the range of 80 percent to 110 percent of the allocation for 

any use season” and could result in either increased or decreased guided public access. [Id.; 

Draft ROD, Appx. 4 at 4-2, 4-4]. Adjustments would occur based on encounter monitoring or 

reports of conflicts between outfitter/guides. [Id. at 4-7, Table A4-2]. The Responsible 

Official proposes to monitor by area and season for two years to acquire baseline encounter 

data; then monitor biannually until data and impact relationships are stable. The 

monitoring would result in a downward or upward adjustment of use, based on the following 

thresholds: (1) if encounters exceed standards and guidelines at one or more use locations 

more than 20% of the season of concern or (2) if user group conflicts causing a diminished 

recreation experience in two out of five years. [Id.]. Upward adjustments could increase 

guided public use up to 110 percent of the allocation. [Id.] However, if monitoring data reveal 

encounters or conflicts that exceed the threshold, the Forest Service would implement 

actions in priority order: (1) encourage outfitter/guide coordination to reduce encounters; (2) 

request voluntary reductions in service days and (3) formally revoke authorized service days 

proportionally from all guides utilizing the use area. [Id. at 4-7-4-8 (emphasis added)]. 

 A. Objection Point 10: The Draft ROD is arbitrary because it relies on an FEIS that 

violated NEPA and the APA by asserting that adaptive management will benefit 

outfitter/guides 

1. Statement referencing prior comments and explaining how decision violates law, 

regulation or policy 

The Boat Company’s DEIS comments requested that further NEPA analysis consider 

allowing for increased allocations for guided public use up to the maximum amount 

considered in the analysis (Alternative 4) because the prospective adaptive service day 

increases were too small to meaningfully provide economic opportunities and stability for 

outfitter guides. [PR 793_0845 at 34]. Further, the analysis failed to consider potential 

adverse impacts to the guided public caused by integrating the saltwater encounter standard 

into adaptive management. [Id. at 32-33]. 

 The FEIS suggests that Adaptive Management would be responsive in part to effects to 

economic opportunities by allowing for an increase in guided public service days. [FEIS at 3-

16; Appx. D. at D-2; Appx. E at E-7 (adaptive management would accommodate requests for 

additional use)]. Similarly, the Draft ROD states that adaptive management would offer “the 

flexibility to provide additional economic opportunities.” [Draft ROD, Appx. 4 at 4-2]. 

Indeed, the Responsible Official decided to implement adaptive management in response to 

The Boat Company’s concerns about the adverse impacts of the Selected Alternative on RSNT 

SCVs. [PR 793_0257]. 

But the adaptive management framework as presented does not meet the purpose and 

need because it increases instability for outfitter/guide businesses. The growth potential is 

minimal, would occur slowly, and depends on the availability of scarce staff resources and 

industry funding at an uncertain cost. Conversely, there is considerable potential for 

significant reductions in guided public use under adaptive management depending on the 

chosen metrics. Because of the inclusion of saltwater encounters as a metric, it is impossible 

that increases would occur. 
48

Agencies that rely on incorrect assumptions in an EIS violate NEPA’s hard look 

requirement. [Native Ecosystems Council v. U.S. Forest Service, 418 F.3d 953, 964 (9th Cir. 

2005)(citing 40 C.F.R. § 1500.1(b))]. An agency action is “arbitrary and capricious if the 

agency ... entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs counter to the evidence before the agency, or is so 

implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.” [Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 

U.S. 29, 43 (1983)]. 

The Responsible Official’s assertion that adaptive management could mitigate adverse 

impacts to the guided public and outfitter/guides is arbitrary and implausible. The FEIS 

neither evaluated whether the potential service day increases would be significant enough to 

incentivize outfitter/guides to pursue adaptive management nor disclosed that the inclusion 

of saltwater encounters would make it impossible for upward guided use adjustments to 

occur. The assumption that adaptive management could somehow mitigate adverse 

economic effects to outfitter/guides is wrong – the agency’s own data show that the number 

of boats and planes operating adjacent to wilderness ensures that the thresholds for upward 

adjustments are unattainable. 

2. Statement of supporting reasons 

a. The adaptive management framework does not provide for service day increases 

that would provide for growth and economic stability 

The Recreation Resource Report states that “[t]he additional 10 percent allocation 

results in an average of 0 percent to 2 percent increase in allocation for the project area for 

all alternatives.” [PR 793_1288 at 244]. The FEIS never considered whether this small 

increase would be useful given the low number of service days available in Use Areas where 

the agency would implement adaptive management. As explained by Pack Creek Bear Tours: 

Our largest complaint about the entire EIS is that the Adaptive Management 

component is too limited to be of much use in the future, if it can only provide 

for an increase of 10% above the EIS alternative chose. Especially if Alternative 

2, the Proposed Action, is chosen, then Adaptive Management should allow for 

up to 50% increased commercial activity in specific areas where justified by 

monitoring, etc. (Otherwise, a 10% increase in Alt. 2 levels would still fall far 

under the Alt. 4 levels of proposed use). ... It seems like a tremendous waste of 

agency time and expertise to go through all the resource analysis that has 

already occurred, add to that all of the monitoring that will occur, and then only 

allow for a potential 10% in increased use before starting a new NEPA. [PR 

793_0835]. 

The small amount of guided public service day allocations in many Wilderness Use 

Areas under the Proposed Action makes it unlikely that tour operators would avail 

themselves of adaptive management opportunities even if feasible. The FEIS claims that 

allowing up to 110% of allocated commercial use would support additional economic 

opportunity. [FEIS, Appx. D at D-7]. The ten percent increase – a zero to two percent 

increase in service days - is too small to support much additional opportunity in many Use 

Areas under the Proposed Action, and, as proposed, it would require at least four years of 

monitoring prior to the authorization of the additional use. [Id.]. 

The guided public service day allocations for a Use Area such as Ford’s Terror are so 

small such that a ten percent increase (12 service days, or one trip that excludes half the 

passengers) would be useless to The Boat Company. [Id. at D-10]. A smaller cruise operator 
49

with, for example, six passengers could receive at best an increase of up to two days for the 

entire summer season. The Boat Company does not use the other adaptive management 

Use Area under the Selected Alternative - the Greens Creek Use Area. [Id.]. But even there 

the adaptive management increase would provide for just one of RSNT activities during the 

summer season. [Id.]. In other words, if a tour operator has to pay the Forest Service to 

conduct additional screening or monitoring, the benefit is so modest as to discourage 

pursuing adaptive management in the first place. Additionally, the four-year monitoring 

period is too long, and further disincentivizes operators from pursuing this option. 

 The Ketchikan/Misty Fiords Ranger District’s adaptive management program allowed 

for meaningful service day increases. It provided for increases “at or below the highest 

allocation per use area ... and the highest guided use allocation for all recreation areas total.” 

[PR 0273 at 41]. Rather than limiting the potential increase to service days under the 

selected alternative, the plan established an upper limit based on the maximum allocation 

under the highest use alternative. [Id.]. The rationale for establishing this upper limit was 

that the NEPA analysis addressed the environmental effects of the higher use allocations, 

thus obviating the need for new environmental analysis and decisions. [Id.]. The scope of 

new environmental analysis would only increase if the ranger district was to go outside of the 

parameters evaluated in the FEIS. [Id. at 42]. 

But Shoreline II’s adaptive management program would include additional 

environmental screening and review as two separate measures prior to implementation of 

adaptive management. [FEIS, Appx. D at D-11]. The Boat Company understands that NEPA 

requires the Forest Service to consider new information to determine the scope of any 

additional environmental review. But this adaptive management program adds review 

requirements that are duplicative of analysis in the FEIS, raising further questions about the 

feasibility of implementation and potential costs to operators who wish to pursue adaptive 

management. The Shoreline II FEIS analyzed environmental impacts up to the maximum 

use considered in Alternative 4 which provides for use well above the adaptive management 

ten percent increase. The need to perform considerable additional analysis to authorize 

increased public guided use below levels previously analyzed under Alternative 4 would 

increase delays and costs. 

While The Boat Company would prefer that the Forest Service provide for an 

appropriate level of guided public use, obviating the need for adaptive management, the draft 

ROD and FEIS failed to establish an adaptive management program that provides for 

meaningful increases in guided public opportunities, and arbitrarily failed to consider using 

the Alternative 4 service day allocations which would have provided an incentive for 

outfitter/guides to utilize the program. 

b. The use of saltwater encounters means Adaptive Management will close areas to 

the guided public 

The Boat Company’s DEIS comments explained that the sole focus for social 

conditions should be the Forest Plan standard of 3 or less encounters per day in Primitive 

ROS settings and questioned whether incorporating saltwater encounters would prevent any 

service day increases and in fact guarantee decreases in guided public use. [PR 793_0845 at 

29, 32-33]. The Boat Company thus requested the further NEPA analysis disclose that using 

those encounters as a metric poses a serious risk of eliminating the guided public from 

access to Primitive and Semi-Primitive non-motorized recreation experiences. 

The FEIS states that the trigger for adaptive management will be when encounters 

exceed Forest Plan standards more than 20 percent in a season, and encounter occurs “when 
50

a person or group located on NFS lands becomes aware of the presence of another person or 

group located on or adjacent to NFS lands.” [FEIS, Appx. D at D-6]. Appendix E reiterates 

that the Forest Service intends to consider non-social saltwater and off-Forest encounters in 

any adaptive management action, and the Wilderness Resource Report suggests further 

changes in the monitoring protocols or triggers as deemed appropriate by agency staff. [Id., 

Appx. E at E-7; PR 793_1292 at 70]. 

The Ketchikan/Misty Fiords Ranger District’s adaptive management program utilized 

only encounters within Wilderness as a trigger for adaptive management actions. [PR 

793_0273 at 29, 41]. Its FEIS defined an encounter as: 

... “an individual or group met while on National Forest System (NFS) lands 

or freshwater lakes.” An encounter may occur at a Forest Service cabin, on a 

trail, or along a shoreline, among other places. It is only considered an 

“encounter” when BOTH PARTIES are on National Forest System lands. For 

example, a group in a boat on saltwater passing a group walking on a beach 

would not be considered an encounter, however, a group in a boat on 

freshwater passing a group walking on a lake shore would be considered an 

encounter.” [Id. at 29]. 

Here, the Responsible Official intends to include non-Wilderness vessel sightings 

within the identified thresholds for reducing guided public access. [FEIS at 3-36; Appx. D at 

D-6]. The disparity between wilderness and saltwater encounters is substantial, and the 

inclusion of saltwater encounters ensures that outfitter/guides seeking adaptive 

management increases would do so at their own peril. It would be Russian Roulette with 

loaded weapon full of seine fleets and cruise ships. For example, the in-wilderness encounter 

rate in Juneau Ranger District Wilderness Use Areas is no more than .2 encounters per day. 

[PR 793_1292 at 34]. There were a total of 8 parties encountered in 124 days of monitoring 

from 2012 – 2015, or an average of less than .1 encounters per day. [Id.]. However, under 

the “Outs[standing] Opp[ortunitie]s Standard” used to measure remoteness for adaptive 

management actions, none of these areas meet the threshold because of observations of 

hundreds of vessels causing an “encounter” rate of up to ten per day. [Id. at 40]. The Forest 

Service thus concluded that “[i]t may not be possible to find solitude” in these areas. [Id.]. 

Similarly, Gut Bay and Admiralty Use Areas all had in-wilderness encounter rates of .1 

to .6 groups per day. [Id. at 34]. But none of these areas would satisfy the adaptive 

management threshold because hundreds of vessels and aircraft cause encounter rates in 

excess of ten per day adjacent to Gut Bay and six to eight encounters per day adjacent to 

Admiralty Wilderness Use Areas. [PR 793_1292 at 39-41]. 

Because adaptive management includes saltwater encounters, it is a one-way program 

that would result in decreases to guided public use. Thus, using saltwater encounters as a 

metric would have serious adverse impacts because the Forest Service conceivably could 

eliminate guided public use altogether from many, if not all, Wilderness Use Areas along 

cruise routes and fishing grounds – even though the encounters have nothing to do with 

guided public use. Indeed, comments during agency staff meetings imply that the real 

purpose of adaptive management would be to reduce guided public access. [PR 793_0291 at 

3]. 

It was arbitrary for the Responsible Official to offer adaptive management as a 

potential mitigation measure that would offer opportunities for business stability and growth. 

The saltwater encounter standard disincentivizes outfitter/guides from participating in the 
51

program. It is implausible that the Boat Company would pay cost recovery fees for a 

monitoring program that counts boats and planes outside of Wilderness so that the Forest 

Service would apply those monitoring results toward a progressive set of increased 

restrictions, including agency revocation of service days. 

3. Conclusion and suggested resolution 

The FEIS and Draft ROD violate NEPA and the APA by asserting that the adaptive 

management program would offer increased opportunities to outfitter/guides and the guided 

public. First, the adaptive management program does not include service day increases at 

levels that would enable outfitter/guides to avail themselves of the program. The Reviewing 

Officer should direct the Responsible Official to allow for the maximum allocation under the 

analysis in the FEIS so as to be consistent with the Ketchikan/Misty Fiord’s Ranger District’s 

approach. 

Second, the inclusion of the saltwater encounter standard ensures that no 

outfitter/guide would utilize the adaptive management process as an avenue to increase 

service day allocations. The Wilderness Resource Report makes clear that it is an impossible 

threshold to satisfy, meaning that adaptive management is a one way trip toward voluntary 

or mandatory reductions in guided public access. The Reviewing Officer should direct the 

Responsible Official to prepare an additional NEPA analysis that modifies the adaptive 

management program – again, in a manner that is consistent with the Ketchikan/Misty Fiord 

Ranger District’s analysis of maximum possible service day increases and definition of an 

encounter.15

B. Objection Point 11: The Draft ROD is arbitrary because the FEIS fails to explain how the 

monitoring program will collect statistically reliable data 

1. Statement referencing prior written comments and content of objection and explaining 

how decision and or analysis specific violate law or regulation 

The Boat Company’s DEIS comments explained that the adaptive management 

discussion failed to show how the Forest Service would conduct a monitoring program that 

provides precise and accurate data or describe the monitoring program in sufficient detail to 

allow for proper evaluation. [PR 793_0845 at 35-39]. Neither the draft ROD nor the FEIS 

consider how much monitoring is necessary to generate statistically reliable data. The ability 

to successfully implement adaptive management depends entirely on the development of a 

monitoring plan subject to changes in the protocols or triggers as deemed appropriate by 

agency staff. [FEIS, Appx. D at D-1, D-4-6; PR 793_1292 at 70]. The FEIS itself shows that 

agency staff have not adequately described the monitoring program, particularly with regard 

whether collected data and sampling methodologies will meet basic standards for statistical 

reliability: “[t]he framework for collection of monitoring data will be developed using a variety 

of methods, including voluntary data collection, and in some cases, statistical modeling.” 

[Id., Appx. E at E-8]. 

The cost disclosures in the FEIS and Draft ROD provide the only indicia of how much 

monitoring would occur. The estimated annual cost ranges from $6,185 to $64,850 under 

the four alternatives. [Id. at 2-21]. The Draft ROD identifies a $12,970 cost for the Selected 

Alternative for crowding monitoring at $5,885 per day, and 2 days of conflict monitoring at 

$600 per day. [Draft ROD, Appx. 4 at 4-9]. The Draft ROD anticipates “at least one field 

trip” for encounter monitoring of no more than five days. [Id.]. In other words, the 

 

15 See, e.g. PR 793_0893 at 3 (explaining the visitor industry’s concern regarding a high level of 

inconsistency in recreation administration from district to district). 
52

Responsible Official proposes to make adaptive management decisions based on observations 

from less than five percent of a 106 day summer season. A fundamental problem pertains to 

whether the Forest Service will be extrapolating encounter rates based on a limited amount 

of data, or even based on the subjective observations of data collectors. Importantly, the 

analysis fails to disclose the potential effects of downwards adjustments likely to occur under 

the agency’s triggers. [36 C.F.R. § 220.5(e)(2)(an EIS providing for adaptive management 

“must disclose ... the effect of the adjustment”)]. 

The FEIS describes monitoring thresholds and the areas that the Forest Service is 

most likely to monitor, but does not specify how the Forest Service will conduct a monitoring 

program designed to obtain statistically reliable data. [40 C.F.R. § 1505.2 (“a monitoring and 

enforcement program shall be adopted and summarized where applicable for any 

mitigation”); 36 C.F.R. § 220.5(e)(2)(an EIS proposing adaptive management “must also 

describe the monitoring that would take place”)]. Although NEPA does not require the agency 

to prepare a fully developed plan, it must provide a reasonably thorough discussion. [City of 

Carmel –by-the-Sea v. U.S. Dept. of Transp., 123 F.3d 1142, 1154 (9th Cir. 1997)]. As the 

courts have observed, an “adaptive management program is deficient unless the agency 

actually conducts a vigorous monitoring program.” [Western Watersheds Project v. Salazar, 

843 F.Supp.2d 1105, 1130 (D. Idaho 2012)]. 

NEPA requires that: 

Agencies shall insure the professional integrity, including scientific integrity, 

of the discussions and analyses in environmental impact statements. They 

shall identify any methodologies used and shall make explicit reference by 

footnote to the scientific and other sources relied upon for conclusions in the 

statement. An agency may place discussion of methodology in an appendix. 

[40 C.F.R. § 1502.24]. 

In order to meet this requirement, the Forest Service must disclose shortcomings in its 

data or models. [Native Ecosystems Council v. U.S. Forest Service, 418 F.3d 953, 964 (9th Cir. 

2005)]. Although the record provides detailed studies from recreation managers that 

specifically address the need for monitoring programs to provide statistically reliable data to 

inform management actions, neither the FEIS nor draft ROD appendices reference these 

materials or disclose that the Forest Service’s methodology is inconsistent with the 

recommendations of those experts. 

Further, the Responsible Official insists that the Draft ROD will be consistent with 

Forest Plan and NFMA monitoring requirements. [Draft ROD at R-15]. The Forest Plan 

requires the the agency to “[m]aintain the necessary data to determine” changes in recreation 

settings, ‘[p]rovide a broad spectrum of outdoor recreation opportunities” and work with the 

visitor industry and outfitter/guides to support tourism on public lands through the 

monitoring program established in Chapter 6 of the 2008 TLMP. [See, e.g. 2016 Tongass 

LRMP at 4-41 – 4-47; 2008 TLMP at 6-17 – 6-20]. The Draft ROD and FEIS place significant 

importance on monitoring under the adaptive management strategy to meet Forest Plan 

standards and objectives, and yet it only identifies one field trip per year as its monitoring 

program. The failure to adequately explain the monitoring strategy and protocols violates 

NFMA. [Native Ecosystems, 418 F.3d at 963]. It is also arbitrary to assert that adaptive 

management would address adverse impacts to outfitter/guides given that the agency 

intends to fill out its monitoring strategy at some point in the future. 

An agency action is “arbitrary and capricious if the agency ... entirely failed to consider 

an important aspect of the problem, offered an explanation for its decision that runs counter 

to the evidence before the agency, or is so implausible that it could not be ascribed to a 
53

difference in view or the product of agency expertise.” [Motor Vehicle Manufacturers Ass’n v. 

State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)]. The draft ROD is arbitrary 

because it relies on an FEIS that never considered an important aspect of the problem - 

whether the monitoring program would generate statistically reliable data. When a statute 

such as NEPA or NFMA requires an agency to collect data to inform decisions, an agency 

must consider a minimum level of monitoring to ensure that the collected data is statistically 

reliable. [Exh. 13, The Boat Company v. Pritzker, No. 3:12-cv-0250-HRH (D. Alaska 2014)]. 

2. Statement of supporting reasons 

The Forest Service’s 2008 wilderness encounter monitoring guide explains that the 

rigor of a monitoring program (type of sampling and amount of data), should correspond to 

the purpose for encounter monitoring. [PR 793_0440 at 7-8 (Broom & Hall 2008)]. 

Throughout the Shoreline II NEPA process, The Boat Company requested that the Forest 

Service develop a systematic sampling methodology in order to obtain statistically reliable 

data to identify problems or inform management changes. Monitoring done thus far was 

done through an opportunistic sampling scheme, collected a small amount of data from some 

areas, and allowed for considerable subjectivity in the saltwater encounter rating scheme. 

The data may provide some useful baseline inventory information, but would not suffice to 

inform management decisions. 

The Forest Service’s own studies assert that when wilderness managers rely on 

monitoring to inform management actions that respond to perceived crowding issues, 

“adopting a more rigorous monitoring program would be appropriate to develop defensible 

data, including the need to collect data with increased precision and accuracy. [Id.]. The 

Boat Company provided Shoreline II staff with the Forest Service’s own National Minimum 

Protocol for Monitoring Outstanding Opportunities for Solitude, which shows that the 

sampling design is also critical: “[m]ore intensive sampling, with random selection of dates, 

would be needed to [assess change over time at specific destinations]. [PR 793_0900 at 13]. 

 Because expert opinion in the record shows that a monitoring program designed to 

inform possible management restrictions on guided public use should produce precise and 

accurate data,16 the FEIS needed to provide a more detailed description of its proposed 

monitoring methodology, and disclose potential shortcomings of that methodology. But the 

analysis neither addresses the issue of how much coverage is enough to produce precise data 

nor identifies potential sources of statistical bias that would compromise the data. The FEIS 

and Draft ROD ignored important aspects of statistical analysis, including expert findings in 

the record on solitude monitoring programs, and thus failed to show how the proposed 

adaptive management monitoring program would generate the statistically reliable data 

needed to inform management decisions. 

a. The FEIS fails to disclose that data collected through opportunistic or 

convenience sampling is not statistically reliable for management purposes 

The Forest Service’s 2014 National Minimum Protocol for solitude monitoring explains 

the difference between random and non-random sampling. The 2014 Protocol characterized 

non-random sampling as a “convenience” sampling and noted that such “data cannot be 

 

16 The Boat Company uses the terms “precision,” “accuracy” and bias as distinct terms with specific 

applications for assessing the statistical reliability of data, and requests that further NEPA analysis 

address both precision and accuracy. The Boat Company provided Shoreline II staff with a Forest 

Service Technical Report that explains statistical theory in terms of precision and accuracy and how 

poorly designed monitoring schemes introduce bias. See PR 793_0279. 
54

used to draw statistically valid inferences to conditions at other times or to make statistically 

valid comparisons across time.” [PR 793_0900 at 6]. Other solitude monitoring experts 

similarly explain that opportunistic or convenience sampling can generate biased data. 

[PR 793_0440 at 16 (Broom & Hall 2008)]. Even though the literature on encounter 

monitoring explores the implications of different sampling designs, the discussion of the 

monitoring program in the FEIS never describes the Forest Service’s proposed sampling 

design or discloses that the method currently in use – opportunistic or convenience sampling 

– likely generates data rendered useless for many management purposes due to unacceptably 

high levels of statistical bias. The discussion in the Draft ROD and FEIS appendices fails to 

consider a random sampling design that is necessary in order to manage guided public use 

based on collected data. 

For example, most of the data collection effort thus far was done by sea kayakers – 

both Forest Service and conservation group personnel.17 There are limitations in terms of the 

statistical reliability of visitor use data collected by roaming observers such as wilderness 

rangers who are also performing other duties. While these data are useful “as additional 

information within a data gathering process, in particular in remote areas, [the data] need to 

be treated cautiously unless the roaming is set up in a systematic way.” [Exh. 14 (Muhar et 

al. 2002)].18 Visitor use estimation based on roaming (wilderness ranger patrols) implicates 

further data quality concerns because it can coincide with areas and times of heaviest use 

and consequently bias the encounter data. The roaming technique does not allow for a 

definable probability sample, and nonsystematic data collection methods can introduce 

unknown sources of statistical bias, significantly reducing the value of the data. [PR 

793_0283 at 24 (Forest Service, Rocky Mountain Research Station 2000)]. Thus, 

“[s]ystematic sampling strategies must be incorporated into this method to obtain unbiased 

data.” [Id.]. For example, the Mount Massive Wilderness recently concluded that the data 

quality of its travel route encounter data was low due to the nature of sampling. [PR 

793_0276 at 80-81]. 

The Shoreline II Draft ROD and FEIS do not discuss the important factor of a 

sampling scheme at all other than the brief reference to one field trip of up to five days. The 

omission of this discussion is arbitrary, particularly in light of a record showing that the 

recent and likely approach of Shoreline II ranger districts – convenience sampling done by 

roaming observers – is inadequate for the purpose of generating statistically reliable data. 

 

17 The Boat Company’s DEIS comments raised the concern that using volunteer data collectors could 

introduce statistical bias. See PR 793_0279 at 8 (“if the person selecting or measuring a sample is 

prejudiced in some way, the estimate may be biased”). The Boat Company noted that wilderness 

advocacy groups kayaking adjacent to Admiralty Island recorded a disproportionately high number of 

“medium” encounters relative to Forest Service personnel, and chose a sample frame that was largely 

or entirely outside of wilderness. The FEIS suggests the Forest Service may use volunteers to collect 

data. Or perhaps the Forest Service may pay wilderness advocacy groups to collect data as it has 

done in the past. The Boat Company believes that further NEPA analysis should make clear that only 

outfitter/guide actual use data and reports, and data collected by Forest Service personnel will be 

used to inform adaptive management decisions. 

18 Muhar, A. et al. 2002. Methods for visitor monitoring in recreational and protected areas. In: 

Monitoring and management of visitor flows in recreation and protected areas. Conference 

Proceedings, ed. By A. Arnberger, C. Brandenberg, A. Muhar 2002. Pp. 1-6. 
55

b. The FEIS fails to assess the amount of data needed to provide precise encounter 

estimates 

Because of the considerable spatial and temporal variability of use, the development of 

the monitoring program needs to consider the question of “how much data is enough” and 

evaluate appropriate standards for determining the amount of encounter data needed to 

develop reasonably precise estimates. The Forest Service’s 2008 wilderness encounter 

monitoring guide explains that increased data collection efforts are necessary when use 

varies across days of the week, or occurs in different areas, or when used to inform 

management decisions. [PR 793_0440 at 14-15 (Broom and Hall 2008)]. 

Considerable sampling effort is also necessary – just to achieve even modest levels of 

statistical reliability – based on data obtained through external visual observations. [PR 

793_0283 at 24 (Forest Service Rocky Mountain Research Station 2000)]. The Interagency 

2009 monitoring guide recognizes that encounter monitoring is difficult to use as an 

indicator “[b]ecause of the lack of standard protocols and the very high level of effort required 

to reliably measure encounters.” [PR 793_0901 at 192 (Landres et al 2009)]. The Forest 

Service’s National Minimum Protocol for solitude monitoring also notes that while 10 days of 

data may provide some indication of overall solitude opportunities in a specific monitoring 

area, it is not enough coverage “to make firm conclusions or to document trends over time.” 

[PR 793_0900 at 15]. When using a standard such as Shoreline II’s 4 out of 5 days with no 

encounters, it may be necessary to sample between 27 and 40 days to generate adequate 

data. [PR 793_0440 at 15-16 (Broom & Hall 2008)]. 

The project record makes clear that the intensity of the monitoring program depends 

on the purpose of the monitoring. The Federal Interagency Task Force on Visitor Capacity 

established a sliding scale of analysis to inform the level of data collection needed and the 

level of precision and accuracy of the data relative to the purpose of visitor monitoring. [PR 

793_0901 at 30-31]. The Task Force explains that the need for larger amounts of precise 

and accurate data is highest when the purpose of the data is to allocate use, establish use 

limits or close areas, or inform the development of an EIS. [Id. at 31]. The Forest Service’s 

2008 wilderness encounter monitoring guide adopts this model and explains that the highest 

levels of analysis should occur when an agency wishes to implement management actions in 

areas where encounter rates may be approaching or exceeding applicable standards. [PR 

793_0440 at 7-8 (Broom and Hall 2008)]. 

 But the only information the FEIS and Draft ROD provide about how much monitoring 

the Forest Service proposes to implement are the cost disclosures which imply the Forest 

Service intends to do one monitoring field trip per year. Indeed, the suggested coverage levels 

in FEIS and Draft ROD appendices fall well short of the Shoreline II ranger district’s own 

analyses of monitoring data quality. The Wilderness Resource Report’s review of existing 

monitoring data explains that “[d]ata adequacy is considered medium or low when quantity 

and/or quality or insufficient.” [PR 793_1291 at 18]. The report further explains that data 

quality is low when there is broad extrapolation or a small data set, and data quantity is low 

when there is not enough recorded data. [Id. at 78]. 

Thus Shoreline II staff state that there is “medium” or insufficient encounter 

monitoring data adequacy in the Juneau Ranger District Wilderness Use Areas, where 

annual monitoring days ranged from 5 – 12 days per year. [PR 793_1292 at 34]. There is 

low data adequacy for the Southern Baranof Wilderness Use Areas with encounter 

monitoring done for 15 days a year. [Id.]. Encounter monitoring in Admiralty National 

Monument Use Areas averaged 34 days per year, resulting in low data adequacy. [Id.]. 
56

 Now the FEIS and Draft ROD suggest that the Forest Service intends to implement 

adaptive management actions based on one field trip per year. Either the cost disclosures 

are wildly inaccurate, or the Responsible Official would implement a monitoring program that 

would achieve, at best, low data adequacy. The description of data adequacy in the 

Wilderness Resource Report and clear findings of multiple agency studies and guides show 

that a high level of analysis is needed before encounter monitoring data is sufficiently 

statistically reliable to inform management actions. The failure of the NEPA analysis to 

consider whether the Forest Service will acquire statistically reliable data based on one field 

trip per year is arbitary. How will the Forest Service extrapolate encounter rates when 

monitoring coincides with outlier events such as the presence of multiple commercial fishing 

vessels offshore prior to a seine opening? 

c. The monitoring program will inflate encounter rates by including administrative 

encounters 

The Boat Company’s DEIS comments requested that further NEPA analysis provide 

clarity about how the Forest Service intends to count administrative encounters. [PR 

793_0845 at 37]. Specifically, The Boat Company’s concern was that the Forest Service 

would count encounters that the agency itself initiates in the determination of whether an 

adaptive management action would result in an increase or decrease of guided public use. 

The FEIS provides an overly narrow interpretation of administrative encounters by defining 

them as encounters with other Forest Service personnel. [FEIS, Appx. E at E-8]. It then 

specifies that the Forest Service will “separate” these encounters in its monitoring protocol to 

“help inform the Forest Service of its effect on crowding.” [Id.]. 

The Ketchikan Misty-Fiords Ranger District, however, “recognize[s] the need for 

ongoing administration of public lands, thus encounters do not include meetings with any 

federal, state, local or contracted individuals who are working at any of these sites.” [KMRD 

ROD, Appx. 1 at 5]. Wilderness ranger reports in particular may reflect an increased number 

of contacts, and different travel routes from the typical visitor. [PR 793_0440 at 10 (Broom & 

Hall 2008)]. One of the Boat Company’s particular concerns pertains to the importance of 

“high” and “low” intensity encounters in the adaptive management framework. If a 

Wilderness ranger observes a group from a distance (low intensity) and then initiates contact 

(creating a high intensity encounter), such a result would artificially inflate the number of 

high intensity encounters, potentially triggering voluntary or mandatory service day 

reductions. 

The Boat Company historically has provided the guided public with on-board 

opportunities to benefit from wilderness education provided by wilderness rangers, or even 

helped to transport individuals to remote sites to conduct encounter monitoring. But what if 

the Forest Service counts these services provided both by and for the agency as high impact 

encounters that may lead to reduced opportunities? The Boat Company submits that this 

practice would incentivize operators to avoid assisting the Forest Service with its recreation 

program, and forgo providing visitors with educational experiences provided by Wilderness 

rangers. The FEIS asserts that the Forest Service will count agency encounters separately, 

but they will still inform the agency’s adaptive management actions. In other words, the 

Shoreline II adaptive management monitoring protocol will artificially inflate the number of 

encounters – against the recommendations of the monitoring protocols and existing Forest 

Service practice on the Tongass. 

3. Conclusion and suggested resolution 

The Draft ROD is arbitrary because it relies on an FEIS that failed to adequately 

describe the agency’s methodology for monitoring encounters, and by failing to disclose 
57

potential shortcomings of the limited monitoring program proposed – particularly the low 

level of monitoring that is well below levels recommended by various agency monitoring 

guides and below levels deemed by Shoreline II staff as providing “low adequacy” data. The 

failure to analyze or disclose these issues violated NEPA, NFMA and the APA. 

The Reviewing Officer should remand the Draft ROD and FEIS to the Responsible 

Official with instructions to provide clarity about proposed monitoring coverage levels and 

assess whether the monitoring levels suggested in the analysis – one field per summer 

season – would be adequate to provide the statistically reliable data needed to inform 

adaptive management actions. In particular, agency staff need to understand basic 

principles of statistical analysis and terms such as precision, accuracy and bias, and disclose 

the potential for statistical bias caused by sampling schemes and low coverage levels. 

C. Objection Point 12: The FEIS fails to evaluate the feasibility and cost of adaptive 

management 

1. Statement referencing prior comments and explaining how decision violates law, 

regulation or policy 

The Boat Company’s DEIS comments and other communications to the Responsible 

Official requested that further NEPA analysis analyze the feasibility of adaptive management 

by considering the availability of staffing resources, budget trends and other factors related 

to recreation management funding on the Tongass National Forest. [PR 793_0845 at 30-31; 

see 793_0091 (raising Senator Murkowski’s concern that recreation planning diverts 

Shoreline II ranger district staff resources away from timber sale planning), 0300]. The Boat 

Company’s DEIS comments requested that the Forest Service not carry Adaptive 

Management forward for further analysis unless it could commit the resources necessary to 

proceed with implementation. The Boat Company also requested that further NEPA analysis 

provide some detail about potential costs of adaptive management to the industry, including 

whether cost-recovery fees would be so high as to discourage outfitter/guides from pursuing 

adaptive management. [PR 793_0845 at 30-31]. 

The discussion of the adaptive management program and planned monitoring violates 

NEPA and the APA is several ways. The CEQ regulations require appropriate mitigation 

measures in alternatives, which can include compensating for impacts by replacing or 

providing substitute resources of environments. [40 C.F.R. 1502.14(f); 1508.20]. The CEQ’s 

Forty Questions explain that: 

...the probability of the mitigation measures being implemented should also 

be discussed. Thus the EIS and the Record of Decision should indicate the 

likelihood that such measures will be adopted and enforced. []. If there is a 

history of non-enforcement or opposition to such measures, the EIS and Record 

of Decision should acknowledge such opposition or non-enforcement. 

Similarly, the National Park Service explains that resource managers should: 

Ensure that the [agency] has the authority to carry out the measures and 

that there is a reasonable expectation of having the human and capital 

resources needed to perform the mitigation and monitoring to ensure mitigation 

is effective. The mitigation measures that you develop should be reasonable, 

effective, and feasible ways to reduce, eliminate or compensate for impacts to 

one or more affected resources. [Exh. 10 at 58]. 
58

The adaptive management program would implement the Forest Service’s Forest Plan 

monitoring requirements pursuant to NFMA. But the Draft ROD and FEIS make the 

program discretionary based on the availability of staff resources and funding. Thus, even if 

Shoreline II staff had designed an adaptive management program with appropriate indicators 

and the flexibility to meaningfully increase guided public service days, the analysis would 

still be arbitrary because it neither considers the feasibility of the program nor fully discloses 

potential costs to outfitter/guides. As explained by the D.C. Circuit, when an agency 

proposes a monitoring plan to meet its substantive obligations, and then makes that plan 

discretionary, it creates “an exception so vague as to make the rule meaningless.” [Oceana v. 

Locke, 670 F.3d 1238, 1241-42 (D.C. Cir. 2011)]. 

2. Statement of supporting reasons 

a. The FEIS does not address whether the Forest Service will commit funds and 

staff resources to adaptive management 

The FEIS explains that implementation of Adaptive Management depends on funding 

and staff capacity. [Id., Appx. D at D-4 at D-12]. District rangers have the “discretion 

whether or not to implement Adaptive Management based on budget and workforce 

capacity.” [Id., Appx. D at D-4]. The Boat Company’s review of Tongass National Forest 

budget trends suggests that recreation departments lack the funding capacity or staff to 

implement adaptive management in a timely manner, if at all. Further, the Forest Service 

recently informed the visitor industry that severe declines in funding for the recreation 

program will result in reduced service even below currently inadequate funding levels. [PR 

793_0893 at 1]. 

Adaptive management would require four personnel – a special use permit 

administrator, two recreation/Wilderness technicians, and a recreation/Wilderness 

specialist. [Draft ROD, Appx. 4 at 4-9]. There are, at most, seven individual staff members 

with recreation management duties across the four ranger districts. [FEIS at 4-1 – 4-3]. 

These staff members have multiple responsibilities, and the FEIS never discloses that the 

Forest Service more than likely does not have the budget and staffing capacity to implement 

adaptive management. The record shows that staffing is a significant issue for recreation 

management: 

... 

 People have their regular jobs to do -and those jobs are full time jobs – these 

people are key to serving the public. The team is throwing in additional 

Shoreline work whenever they can – they are not able to be a dedicated IDT. 

And in Jenn Berger’s case, permit administrators are rec. staff – they have many 

roles. This is your number one priority AFTER all the other things we need to 

do – there are lots of other things to do! 

 Vacancies are not being filled quickly-some work is not getting done and staffing 

is slow and difficult[.] [PR 0227 (Pre-NEPA project record)]. 

The Forest Service was unable to adaptive service day increases for Shoreline I because 

there no agency resources available to implement it. [PR 793_0291 at 2 (adding district 

ranger concerns about existing burdens for permit administrators)]. The Forest Service was 

unable to work with bear guides and RSNT SCV operators to develop BMPs for conflict 

avoidance because of staff and budget shortages. [PR 793_1288 at 46]. The Wilderness 

resource report explains that: 

The vastness and remoteness of the six wilderness areas in the Shoreline II 

project area, combined with limited staff and budgets and the comparatively 
59

recent advent of wilderness character monitoring, mean that data on resource 

conditions and visitor use is often less than robust. 

... 

Much of the data adequacy in this report is low and in some cases there is no 

data. 

... 

... commercial use allocated under Shoreline I was authorized under the 

premise that monitoring would occur to fill data needs to ensure that the 

commercial use occurred in a manner compatible with resource protection and 

quality visitor experiences. However, the monitoring that was supposed to 

occur was not sufficiently funded or prioritized resulting in lingering data 

deficiencies for multiple resources. [PR 793_1292 at 18]. 

 Now the Forest Service insists that Shoreline II’s adaptive management program is more 

feasible because it focuses on specific Use Areas. [FEIS, Appx. E at E-7]. This rationale is 

wrong. Shoreline I would have implemented a “trigger point” process which would have 

resulted in Use Area specific review using the same threshold as Shoreline II’s adaptive 

management – when an area reaches 80 percent of capacity. [PR 793_0879]. Thus, 

Shoreline I would have narrowed its focus the same Use Areas encompassed within Shoreline 

II’s adaptive management because it uses the same threshold. The Forest Service never 

conducted such a review, even when pressed, [Cf. id. and PR 793_0880], nor did it fulfill its 

other Shoreline I monitoring requirements. [PR 793_0067]. The Forest Service had at least 

as many, and perhaps more recreation staff in 2004. [Cf. Shoreline I FEIS at 4-20 – 4-23 and 

FEIS at 4-1 – 4-3]. Thus, the Draft ROD and FEIS arbitrarily fail to assess the probability of 

whether the Forest Service can actually implement its mitigation measures. 

The FEIS does suggest a funding alternative but never considers whether or not it is 

probably that outfitter/guides would or could absorb the monitoring costs. The FEIS states 

that the “estimated cost ... could be further set off by charging outfitter/guides who request 

additional use a fee, and/or further cooperation for voluntary data collection with permitted 

outfitter/guides” and Forest Service cost recovery regulations will govern fee assessments. 

[FEIS, Appx. D at D-8]. But the estimated encounter monitoring annual costs range from 

$6,185 to $58,850 by alternative. [FEIS, Appx. D-9 – D-11]. As previously noted, the 

proposed level of encounter monitoring is not sufficient to produce statistically reliable data. 

Even if one field trip was sufficient, the analysis needed to consider whether outfitter/guides 

would pay $6,000 for the minimal increase in service days available under adaptive 

management. Either the FEIS under-estimates the real cost of adequate monitoring, or it 

assumes that outfitter/guides would pay $6,000 for kayakers to count boats that in turn 

would count toward prospective service day reductions. 

In sum, the FEIS arbitrarily relies on agency capacity to implement adaptive 

management in the face of a record showing past failures and current staff shortages, and 

then assumes that outfitter/guides would pay a significant cost with little to gain for it. 

Either way, the mitigation and monitoring program is infeasible. 
60

3. Conclusion and suggested resolution 

The draft ROD is arbitrary because it relies on an FEIS that violated NEPA by failing to 

consider the feasibility of the Responsible Official’s adaptive management and monitoring 

measures. It assumes the agency could provide staff and funding when the record shows 

otherwise. It then suggests that outfitter/guides could provide funding without analyzing 

whether the service provided warrants the expenditure. 

The Reviewing Officer should direct the Responsible Official to either remove the 

adaptive management component from all alternatives, or prepare an additional NEPA 

analysis that provides a credible discussion of agency budget and staff resources, and 

evaluates the feasibility of an industry funded program. 

D. Objection Point 13: Measurability and feasibility of adaptive management for conflicts 

The Adaptive Management Framework also includes a component that would provide 

for reducing guided public access based on conflicts. The trigger for monitoring conflicts 

occurs when “conflicts between user groups result in a diminished recreation experience and 

are recorded in any 2 of 5 year period in any single use area and season.” [FEIS, Appx. D at 

D-6]. If this level of conflicts occurs, outfitter/guides are to work it out among themselves, 

voluntarily reduce their own service days, or the Forest Service “formally revokes service days 

proportionally from all outfitter/guides utilizing the use area. [Id. at D-8]. 

1. Statement referencing prior written comments and content of objection and explaining 

how decision and or analysis specific violate law or regulation 

The Boat Company’s DEIS comments objected to the option to reduce public access based 

on reports of conflicts as vague and difficult to implement without implicating administrative 

due process concerns. [PR 793_0845 at 35-36]. Adaptive management would rely on ad hoc 

complaints from outfitter/guides or the public, and potentially limit use. The Boat Company 

understands that the Forest Service offers an appeal process, but still maintains that the 

agency should not move forward with the conflicts component of adaptive management. The 

ad hoc reporting method still creates an incentive for an individual guide, or unguided 

recreationist, to report conflicts as an avenue toward exclusive access. The State of Alaska 

has clear standards that provide guides with the opportunity to report and address 

interference by other individuals – standards that require specific obstructions and 

intentional conduct. [AS § 16.06.790 (Obstruction or hindrance of lawful hunting or viewing 

fish and game)]. But adaptive management conflicts can occur based on a self-serving 

complaint, where meritorious or not. The FEIS violated NEPA and the APA by failing to 

consider these aspects of the conflicts component. 

2. Statement of supporting reasons 

The Ketchikan/Misty Fiords Adaptive Management program provided some additional 

detail, and required an “[e]valuation of the number/content of complaints.” [PR 0273 at 42]. 

This is at least a superior approach to Shoreline II’s adaptive management program, which 

only monitors ad hoc reports. The Boat Company questions whether even this additional 

requirement would be sufficient to address the problem of unreliable complaints, or even the 

most common type of conflict - complaints by one outfitter/guide seeking to exclude another 

outfitter/guide from a particular Use Area. The record provides enough examples to make 

clear that self-serving complaints are an issue, and that Forest Service staff generally 

consider it a “no-action” issue. [See e.g. PR 793_970, 1002, 1156, 1176]. 

For example, Glacier Guides, a bear hunting operation, complained about The Boat 

Company conducting safety training activities in Eliza Harbor last year. [PR 793_0874]. 
61

Glacier Guides accused The Boat Company of discharging firearms and disturbing bear 

hunting activities. However, The Boat Company’s crew contacted Glacier Guides’ vessel upon 

entering the bay, informed them about the planned activities, and took reasonable 

precautions to locate the training exercises far from the location of the bear hunt. At no 

point did the crew discharge firearms. [Id.]. 

The above example shows that the conflicts metric is likely to burden those few permit 

administrators who already bear primary responsibility for administering the Tongass 

National Forest’s largest recreation program. The Forest Service intends its appeal process to 

provide notice to outfitter/guides of complaints against them, provide opportunities to rebut 

those complaints, ensure the truthfulness of complaints and provide appeal opportunities – 

but this avenue is only available after the agency makes the decision to reduce service days 

based on ad hoc reports where permit administrators substitute for a trained administrative 

law judge who weighs evidence and assesses the credibility of contested complaints. The 

Boat Company suggests that the Forest Service may not have fully considered these aspects 

of the conflict component of adaptive management. 

Finally, even when there are valid complaints, it seems unfair to punish the guided 

public in general for improper conduct by one operator. The Boat Company suggests that it 

would be more appropriate to address these conflicts during the permit administration 

process through stipulations or reduced service day allocations to the transgressor. 

3. Conclusion and suggested resolution 

The Reviewing Officer should direct the Responsible Official to prepare additional 

NEPA analysis that provides for the development of procedures that provide adequate 

administrative due process for special use permittees whose livelihood depends on providing 

guided public access to Wilderness by incorporating components of the Ketchikan/Misty 

Fiords Ranger District’s model for conflict resolution. This analysis should also discuss the 

extent to which the Ketchikan/Misty Fiords Ranger District has addressed conflicts in the 

implementation of its plan, and review the effectiveness (or absence) of any actions taken. In 

the alternative, the Reviewing Officer could direct the Responsible Official to remove the 

conflicts component from its adaptive management program. 

V. Objection points related to the analysis of Wilderness impacts 

A. Introduction: description of the saltwater encounter standard and how it inflates the 

number of social encounters for Wilderness Users 

The main focus of the FEIS Wilderness Resource chapter is “on the two solitude 

indicators: remoteness from human activity inside wilderness and remoteness from human 

activity adjacent to wilderness.” [FEIS at 3-23, 3-38]. As discussed below in section V.C., 

this encounter definition is much broader than that utilized in the recreation management 

literature and in other Forest Service ranger districts, which restrict the definition of a 

wilderness encounter to social encounters with parties within wilderness. Encounters thus 

now include sightings of marine traffic outside of Wilderness. The monitoring party does not 

need to be engaged in Wilderness recreation at all, but instead could be kayaking in state 

waters. [PR 793_1292 at 15]. This objection letter thus refers to this new measure and 

associated indicators as the “saltwater encounter standard” because it equates sightings of 

boats in adjacent saltwater areas into wilderness social encounters, and functions as a 

standard for determining areas where solitude is at risk. 

Shoreline II staff believe that Forest Plan social encounter standards do not preserve 

opportunities for solitude. [PR 793_0828 at 2; PR 793_1292 at 19]. The particular concern 
62

is adjacent to wilderness which staff propose to measure with two indicators: (1) the number 

of group encounters per day adjacent to wilderness (saltwater, air and non-wilderness 

encounters) and (2) percentage of days monitored with low intensity or no encounters. [Id. at 

3-36]. The FEIS does not provide numerical criteria, but relies on the 2012 Wilderness 

Character Monitoring Plan and 2012 Plan for Preserving Outstanding Opportunities for 

Solitude as the basis for these standards. [FEIS at 3-24]. Those plans identify areas where 

the Forest Service believes that increased visitor use would degrade wilderness values, and 

establish numerical criteria for the new indicators – 2 encounters per day in some areas, and 

no more than one group every 5 days for areas identified as being at risk for providing 

outstanding opportunities for solitude. [PR 793_0824 at 10-11, 15; PR 793_0828 at 1-2]. 

Based on these criteria, agency staff identified areas where solitude is at risk in order 

“to set up a pathway for action” – i.e. the Shoreline II Draft ROD and FEIS. [PR 793_0828 at 

1-3]. The Use Areas where the Draft ROD cuts the most service days relative to Shoreline I 

are those identified in the Wilderness Report as failing to meet this new “Out[standing] 

Opp[ortunitie]s Standard.” [See, e.g. PR 793_1292 at 40]. The FEIS identifies “moderate 

concern” with Wilderness solitude for most wilderness areas under most alternatives. [FEIS 

at 3-39]. Because of this concern, increasing guided public use, such as Alternative service 

day allocations, would result in “negative effects.” The driving force behind these conclusions 

– and the entire approach of Shoreline II, is the perception of two Forest Service staff that “we 

do not have any outstanding opportunities for solitude anywhere.” [PR 793_0017]. 

Critically, given the maritime economy of the region, the Shoreline II saltwater 

encounter standard generates significantly different results from those collected by other TNF 

wilderness managers and overestimates the number of encounters that are actually relevant 

to wilderness solitude experiences. The South Baranof Wilderness Needs Assessment shows 

that monitoring results largely reflect vessel sightings on the adjacent saltwater.19 [DEIS, 

Appx. F, South Baranof Wilderness Needs Assessment at 13 (describing the most frequently 

visited use area in the South Baranof Wilderness – Red Bluff Bay – where “... visitors can 

expect to encounter on average eight or more groups per day in the bay. The majority of this 

use is occurring on the adjacent saltwater”)]. The Sitka Ranger District conducted 

monitoring in the same wilderness area for 12 hours in 2010 with eight encounters and only 

one onshore wilderness encounter with state workers (who would have been excluded as an 

encounter under the Ketchikan Ranger District’s methodology). The Sitka Ranger District’s 

summary of visitor use monitoring shows that much of the use of concern occurs outside of 

National Forest lands – six of the areas monitored (all of the areas outside of Peril Straits) 

had in excess of 94% of the observed visitation occurring outside of National Forest lands. 

[PR 793_0334]. Only two areas had more than 12% of visitor activities occurring on National 

Forest lands – a large group area and Sitkoh Bay, where Forest Service logging and road 

construction were the primary “visitor activity.” [Id.]. 

Similarly, Use Area cards for Juneau Ranger District Wilderness Use Areas stated that 

“[m]onitoring indicates that adjacent saltwater activities ... are having an impact on the 

ability of wilderness visitors to experience solitude.” [Draft ROD, Appx. 1 at 1-34 – 1-41]. 

The Wilderness resource report shows that actual group social encounter rates in these Use 

 

19 In general, monitoring data thus far counts more boats and planes than people ashore. Data from 

monitoring southeast Admiralty during the first week of August 2012 recorded nearly 30 medium or 

high encounters with boats (several of them administrative contracts), one medium or high encounter 

with a plane, and no encounters ashore. Monitoring of Tracy Arm in 2012 and 2013 recorded over 

200 medium and high encounters over 30 days of monitoring, with three total encounters ashore. 

Monitoring data referenced here are available in the record in various places and formats, such as 

reports, spreadsheets and pdf files, including PR 793_0231, 0334, 0335, 0336. 
63

Areas range between 0 and 0.1 encounters per day, while vessel encounters increase the 

daily average to between 2.3 and 10.3 encounters per day. [PR 793_1292 at 34, 340]. Thus, 

none of these areas would meet the new “threshold” for providing solitude opportunities. [Id. 

at 40]. If marine encounters are explicitly factored into the threshold, most wilderness 

recreation areas selected for monitoring will rarely meet the new indicator, even if there are 

no encounters ashore during a given sampling period. 

The 2015 monitoring guide referenced in the FEIS, Keeping It Wild 2, notes that “local 

offices can ‘game’ this monitoring to show an intended trend in wilderness character.” [PR 

793_0878 (Landres et al 2015)]. Keeping It Wild 2 explains that: 

... wilderness character monitoring can be abused. Significant concerns 

with this flexible approach are that: (1) meaningless measures may be selected, 

(2) particular measures may be selected to show a desired outcome, and (3) the 

set of measures that are selected may not add up to a coherent or viable 

assessment of trend in wilderness character. [Id.]. 

The Boat Company submits that the development and use of a saltwater encounter 

standard suffers from these flaws. It is meaningless because these encounters occur outside 

of Forest Service managed areas with vessels that are largely not operated by 

outfitter/guides. It does show a desired outcome because the only poor wilderness character 

scores in the FEIS result from outside of wilderness activities. [FEIS at 3-34, Table 3-10]. 

These poor scores in turn caused the FEIS to conclude that the one alternative which would 

provide for some increase in guided public service days in Use Areas utilized by RSNT SCV 

operators, Alternative 4, would have minor, moderate, or even major negative effects because 

it would add to existing solitude impairment. [FEIS at 3-39, Table 3-13]. Importantly, in 

terms of social encounters on Forest Service lands, Alternative 4 would maintain encounter 

rates of around 1 group per day – or less. [PR 793_1288 at 163, 165, 167, 193]. 

The Forest Service would thus limit guided public access to high quality recreation 

experiences solely on the basis of perceived increases in marine traffic, and the untested 

assumption that reducing guided public access would somehow ameliorate off-wilderness 

impacts on those few unidentified wilderness users who would seek a virtual isolation 

experience – 4 out of 5 days without seeing planes, boats or other people. 

B. Objection Point 14: The Draft ROD and FEIS arbitrarily reverse agency policy and 

practice for measuring encounters without adequately explaining the basis for change 

1. Statement referencing prior comments and explaining how violates law, statute or 

regulation 

The Boat Company’s DEIS comments expressed concern about the 2012 Wilderness 

Character monitoring plan criteria for solitude, particularly the subjective idea that 

wilderness solitude requires 4 out of five days alone – an isolation experience. [PR 793_0845 

at 53]. The FEIS insists that the saltwater encounter standard is not a standard, but rather 

an indicator that the Forest Service would use to assess conditions rather than prescribing 

management numbers. [FEIS, Appx. E at E-32-33]. The Forest Plan explains that a 

standard is “a course of action or attainment required by the Forest Plan to promote 

achievement of goals and objectives” or “[a] mandatory constraint on project and activity 

decision-making, established to help achieve or maintain the desired condition or conditions, 

to avoid or mitigate undesirable effects, or to meet applicable legal requirements.” [2016 

Tongass LRMP at 7-59]. 
64

The Shoreline FEIS clearly relies on the saltwater encounter standard to achieve the 

agency’s desired condition or to meet what it erroneously perceives as its legal requirements 

under the Wilderness Act. The saltwater encounter standard developed in the 2012 

Wilderness Solitude Plan clearly drove the range of alternatives and the assumption in the 

Visitor Capacity analysis that the social experience is “the most limiting factor.” [See PR 

793_0054 at 5]. The 2012 Wilderness Solitude Plan identifies areas “that provide the most 

outstanding opportunities for solitude and are considered at risk of losing those 

opportunities.” [PR 793_0828 at 1-3]. Thus, the saltwater encounter standard and “low 

potential for encounter” measure, the monitoring emphasis on non-wilderness saltwater 

encounters, and selection of areas where solitude is at risk resulted in the Wilderness 

Resource chapter’s conclusion that additional guided public use would have negative effects 

– i.e. additional guided use would not meet desired conditions. The saltwater encounter 

standard is not just a “monitoring flag” but rather had real substantive implications for 

outfitter/guides – and, as discussed in Section IV – will have additional ramifications should 

the agency pursue adaptive management. 

Thus, the Draft ROD is arbitrary because the FEIS violated NEPA and NFMA by 

establishing a new standard in the Wilderness Character Monitoring Plan without adequate 

public participation. It does not matter whether the Forest Service wants to characterize the 

saltwater encounter standard as an indicator, threshold or something else because the 

saltwater encounter standard drove the range of alternatives and ultimate allocations of 

service days in areas utilized by RSNT SCV operators. The FEIS neither discussed nor 

disclosed the rationale for this new approach – the subjective belief that managing to the 

Forest Plan standard will not preserve existing solitude opportunities and that staff believe 

more restrictive standards are necessary in areas they identified as having solitude 

opportunities at risk due to marine traffic. [PR 793_0824 at 2; PR 793_1292 at 19]. 

The FEIS referenced the Wilderness Character Monitoring Plan, but did not describe 

its significant implications in any detail. The development of these indicators outside of the 

NEPA process failed to provide for an appropriate level of public scrutiny that is “essential to 

implementing NEPA.” [40 C.F.R. § 1500.1(b)]. The failure to provide for public participation 

in the development of indicators which have the practical effect of changing the Forest Plan 

standard also violates NFMA’s requirement to “provide for public participation in the 

development, review and revision of land management plans.” [16 U.S.C. § 1604(d)]. 

The Ketchikan-Misty Fiords Ranger District’s choice of indicators for non-shoreline 

portions of its wilderness [(see PR 0274, Appx. 1 at 5 (Ketchikan-Misty-Fiords 

Outfitter/Guide Management Plan ROD)], followed a full NEPA process that included public 

participation in the development of desired conditions and monitoring standards and 

indicators. [PR 0273 at 5, 11-12 (Ketchikan-Misty-Fiords Outfitter/Guide Management Plan 

FEIS)]. Similarly, Landres et al note that because monitoring trends in wilderness character 

is new, and “[t]o ensure credibility and continued improvement over time, this process must 

be open to input from the agencies, wilderness managers, scientists, and public to reflect 

lessons learned during implementation as well as new thinking about wilderness character.” 

[PR 0130 at 15 (Landres et al 2008)]. But here, the Forest Service built an entire 

outfitter/guide management plan designed to offer solitude to kayakers in state waters based 

on criteria that it never previously provided to the general public and indeed hid in internal 

agency documents that it failed to fully disclose or analyze in this FEIS. 

The Boat Company’s DEIS comments also requested that further NEPA analysis 

discuss the Forest Service’s methodology for determining areas where outstanding 

opportunities for solitude are at risk, the underlying data, and allow for public comment and 

review. [40 C.F.R. § 1502.24]. The FEIS failed to disclose that its methodology is a 

significant departure from the literature upon which it purports to rely, or disclose that were 
65

alternative and preferred professional recommendations for ways to measure off-wilderness 

impacts. 

Most importantly, the Draft ROD and FEIS significantly change the definition of an 

encounter to include off-wilderness sightings of vessels so that the agency’s determination of 

when solitude is at risk, warranting restrictions on public access, would rest on a count of 

ten or more vessel sightings per day rather than one or less within Wilderness social 

encounters per day – the applicable Primitive ROS standard. When an agency changes a rule 

or a policy, the Administrative Procedure Act requires an explanation for the basis for its 

change. [National Cable & Telecommunications Assn v. Brand X Internet Services, 545 U.S. 

967, 981 (2005)(“unexplained inconsistency” from agency practice is arbitrary and 

capricious)]. Such an explanation for a change in policy is necessary given that the agency’s 

practice is a “settled course of behavior[,] embodies the agency’s informed judgment that, by 

pursuing that course, it will carry out the policies .... best if the settled rule is adhered to.” 

[State Farm 463 U.S. at 41-42]. Thus the FEIS needed to explain the policy change – but 

there is nothing other than a few subjective “feelings” of Forest Service kayak rangers in the 

record to explain it. 

The FEIS suggests that there are court cases interpreting the Wilderness Act that 

support the agency’s saltwater encounter standard. Those cases actually support The Boat 

Company’s view that the Forest Service here simply needed to disclose that adjacent 

saltwater activities affect Wilderness solitude in some areas, and explain the particular 

impacts. Notably, those cases address agency activities adjacent to wilderness, while 

Shoreline II does not authorize anything in state waters, nor could it. But the cases do reject 

the plaintiff’s argument that the agency’s Wilderness Act authority extends outside its 

boundaries other than for analytical purposes: 

... a per se ban on all agency activity having some impact on the adjoining 

wilderness area would substantially impede [agency] administration of 

wilderness areas, and could serve to expand the wilderness boundaries beyond 

the area established by Congress. An agency ‘must take into account the fact 

that at some point, the wilderness stops and civilization begins.’ Vermonters for 

a Clean Environment at 431].

2. Statement of supporting reasons 

The Forest Service’s new encounter definition appears in the Wilderness Resource 

Report: 

An encounter occurs when a person or group located on NFS lands 

becomes aware of another person or group located on or adjacent to NFS lands. 

Usually the other group encountered was within three miles of the monitoring 

party, sometimes much closer; on occasion a more distant group might be 

noted. The monitoring party could be in wilderness or kayaking along 

wilderness shores. Observed groups include motorized and non-motorized 

parties who are in-wilderness or off-wilderness. [PR 793_1292 at 15]. 

The report insists this approach is consistent with Forest Service encounter and 

remoteness standards for social encounters, wilderness character monitoring protocol, and 

court rulings.20

 

20 The cases referenced by the Forest Service approve of agency activities adjacent to wilderness so 

long as the agency discloses impacts. Not only is there no agency activity in play here, but for various 

reasons, the courts rejected plaintiff arguments that the Wilderness Act prohibits activities adjacent to 

Wilderness that affect solitude. 
66

a. The Forest Service is initiating a new policy that contradicts agency practice an 

The spatial extension of the new measure/standard to non-social encounters in 

saltwater areas deviates from the previous Shoreline Plan and the findings of other TNF 

ranger districts, which have concluded that solitude opportunities exist, even when using a 

more restrictive encounter standard for actual wilderness encounters than the Forest Plan. 

The 2016 Tongass LRMP FEIS concluded that Tongass National Forest wildernesses “are 

mostly in a pristine condition, with the imprint of humans generally not noticeable. They 

offer outstanding opportunities for solitude ....” [2016 Tongass LRMP FEIS at 3-452]. The 

more detailed 2008 TLMP FEIS anticipated that standards and guidelines would preserve 

outstanding opportunities for solitude. [2008 TLMP FEIS at 3-458, 3-467]. The Forest Plan 

standard for Wilderness encounters is less than 3 groups per day. [2016 Tongass LRMP at 

4-44]. It specifically references “social encounters” rather than sightings of distant vessels. 

[2016 Tongass LRMP, Appx. I at I-1; see also PR 793_0267 at 10 (Shelby and Whittaker 

2015)(noting that there may be substantial differences between encounters with other groups 

on land, and observations of vessels on distant salt water travel routes)]. 

The Wilderness Resource report acknowledges that the Forest Plan Primitive ROS 

social encounter standard utilized in Shoreline I of meeting fewer than three parties per day 

“is relatively clear.” [PR 793_1292 at 19]. Under this standard, “all six Shoreline II 

wilderness areas have thus far demonstrated in-wilderness encounter rates that are very low, 

often averaging encountering a group every other day or less frequently. For this reason, this 

measure is considered to be in good condition for all six wilderness areas.” [Id. at 33]. 

The Shoreline I FEIS also rejected the notion that marine traffic was a wilderness use. 

It explains that: “[g]roups of people on boats traveling, sightseeing, fishing, or anchored on 

the saltwater were not considered to be national forest users for the purposes of this FEIS 

and are not factored into ... the carrying capacity. Groups on salt water at access points to 

national forest were considered only in conjunction with their upland use.” [Shoreline I FEIS 

at 3-8; Vol. III, Appx. F at 13]. The record shows that the Forest Service acknowledged 

during this process that “we are required to have solitude in wilderness, but [are] not 

required to do so outside of it.” [PR 793_0020]. This statement is consistent with the 

agency’s historical position that the Forest Service “has no jurisdiction on the number or size 

of boats that are in marine waters.” [PR 793_0880 at 1 (Cole 2011)]. 

Similarly, the Ketchikan-Misty Fiords Outfitter and Guide Management Plan FEIS 

defines a social encounter as “an individual or group met while on National Forest System 

lands or freshwater lakes.” [PR 793_0273 at 1]. Their monitoring report specifies that “[a]n 

encounter occurs only when BOTH parties are on National Forest System lands. [Id.; see 

also PR 793_0881 at 5 (KMRD Solitude Monitoring Protocol)(same)(emphasis in original)]. 

This means, specifically, that “a group in a boat on saltwater passing a group on shore would 

not be considered a social encounter for the purposes of monitoring conditions in relation to 

standards established in the FEIS (2012).” [PR 793_0273 at 1 (emphasis added)]. 

The Ketchikan-Misty Fiords Ranger District’s monitoring showed that conditions in 

most wilderness areas were within social encounter standards established in its FEIS, with 

one exception related to float plane landings within one wilderness recreation use area. [Id.

at 2]. Based on this data, and despite problems in one area with floatplane landings and 

summer use of two bays, the Ketchikan-Misty Fiords Ranger District concluded that “... there 

are outstanding opportunities for solitude or primitive recreation in most areas of MFNMW” 

and that “the limited period of high use (June through August, or approximately 25% of the 

year) and the relatively localized nature of the effects of this use, reduce the overall impacts 

to wilderness character, which is being maintained throughout most of the MFNMW.” [Id. at 

7]. 
67

Finally, the Wilderness Character Monitoring Plan selected a 2 group per day 

threshold rather than the standard of less than 3 groups per day that would apply to inwilderness social encounters. This change is meaningful because the agency measures 

encounters by averaging to the nearest tenth of a group. [PR 793_1292 at 33-34]. This 

means that 2.7 group encounters would be acceptable under the Forest Plan standard, but 

not under the Wilderness Character Monitoring Plan. The Forest Service can call it an 

indicator if it wants, but it is the standard for assessing wilderness condition and 

consequently setting service day allocations. It functions as the standard for adaptive 

management. 

The FEIS never provided a satisfactory explanation as to why the Forest Plan social 

encounter standard is inadequate. Indeed, given the high level of subjectivity inherent in 

defining wilderness solitude, it is worth noting that some research has shown that a majority 

of visitors consider meeting up to two other groups on a trail as a pleasant experience. [PR 

793_0270 at 33 (Cole 1997)]. Conversely, only a third of visitors found three group 

encounters to be a pleasant experience. [Id.; see also PR 0440 at 2 (Broom & Hall 

2008)(discussing visitor research studies showing that some visitors actually prefer 2 

encounters)]. In other words, there is a statistically significant difference between visitor 

perceptions of the number of encounters, and the FEIS never addresses this issue or justifies 

the 2 encounter standard identified in the Wilderness Character Monitoring Plan. 

b. The Wilderness encounter monitoring guides recommend other criteria for nonWilderness encounters 

Wilderness encounter monitoring guides define an “encounter” as “when a person or 

group becomes aware of the presence of another person or group within the wilderness.” [PR 

0440 at 1 (Broom and Hall 2008)]. This definition is consistent with the Forest Plan standard 

for social encounters. The record shows that the Forest Service recognizes in-wilderness 

encounters as “one of the fundamental measures” for solitude opportunities. [PR 793_1292 

at 33]. While crowding at access points can affect solitude opportunities, [PR 0135 at 12 

(Dawson 2004)], none of the monitoring guides and protocols call for direct use of offwilderness motorized vessel or vehicle observations as encounter data. The literature instead 

recommends measuring non-wilderness impacts to solitude opportunities by considering the 

amount of wilderness area out of sight and sound from non-wilderness human activities 

along access and travel routes. [Id. at 13 (Dawson 2004); PR 793_0130 at 57 (Landres et al 

2008)]. The monitoring guides discourage an emphasis on reporting measures outside of the 

agency’s control: 

Not all measures of wilderness character are directly under control of the 

land managing agency. Therefore, measures used to report for [Government 

Performance and Results Act] wilderness performance measure would be the 

subset of the wilderness character measures that are predominantly within the 

management capability and authority of the Federal agency. For instance, 

though it is acknowledged that changes in air quality can have a profound 

impact on wilderness character, those changes are rarely within the purview of 

the local land manager and it would be inappropriate to base a GPRA 

performance goal on changes in air quality. [PR 793_0130 at 35 (Landres et al 

2008)]. 

Thus the Forest Service’s own 2014 minimum protocol describes non-wilderness 

encounters such as seeing cruise ships or people outside the wilderness as “[s]pecial 

circumstances” which can be accommodated after appropriate analysis. [PR 793_0900 at 

14]. But the FEIS transforms “special circumstances” into the primary focus, and adds 
68

wilderness and non-wilderness encounters together to create a scenario where solitude 

opportunities are at risk by adding an encounter indicator to address remoteness from sights 

and sounds adjacent to Wilderness. [FEIS at 3-23]. 

There is no such solitude indicator for sightings of non-wilderness traffic in any of the 

solitude monitoring literature. The monitoring guides instead recommend using a remote, 

trailless indicator to address impacts from areas outside the designated wilderness; none of 

them suggest encounter monitoring outside wilderness as an appropriate indicator. [PR 

793_0128 at 188 (Landres et al. 2009); PR 793_0130 at 28, 57 – 58 (Landres et al. 2008)]. 

Even the updated, 2015 monitoring guide upon which the Wilderness Resource report relies 

measures impacts of activities outside of wilderness through an indicator that measures the 

area of wilderness not affected by travel routes. [PR 793_0878 at 54 (Landres et al. 2015)]. 

In other words, although the analysis in the FEIS purports to utilize established monitoring 

protocols, it significantly departs from those protocols. The indicator recommended by the 

monitoring protocols would show that there is ample wilderness acreage in the Shoreline II 

project area that provides solitude opportunities. Conversely, the saltwater encounter 

indicator produces what appears to a predetermined result showing that solitude 

opportunities are unavailable. The FEIS never discloses that its approach is inconsistent 

with the agency’s own historical practice, the recreation monitoring literature upon which the 

FEIS purports to rely or explains why a sighting of an offshore vessel impacts solitude in the 

same way as a social encounter within wilderness. 

c. The only explanations for the saltwater encounter standard are subjective 

feelings 

The low/medium/high intensity encounter concept is particularly problematic 

because it is imprecise and allows for considerable subjectivity. [PR 793_0267 at 10 (Shelby 

and Whittaker 2015)]. This concept requires that there would be 4 out of 5 days with no 

“medium” or “high” impact encounters based on the perception that most visitors would not 

encounter more than one group per 5 day visit during the high use season. [PR 793_0828 at 

3, 9]. The Boat Company recognizes that there are established wilderness recreation 

opportunity classes which use similar, probability based low encounter standards – but such 

standards are only applied to those portions of zoned wildernesses designated as “Pristine” or 

“Primitive,” and do not include access points and adjacent travel routes. [See, e.g. PR 

793_0274 at 5 (Ketchikan-Misty Fiords Outfitter/Guide Management Plan ROD)(no 

encounters per day in Primitive Wilderness 90% of the time; no more than two encounters 

per day during trip 90% of the time in Semi-Primitive Wilderness]. Here, the Forest Service is 

establishing a “pristine zone” that covers all Wilderness encompassed by Shoreline II – and 

beyond. 

The 2012 Wilderness Solitude Plan indicates that the new measure reflects the 

assumption that it represents “the levels of encounters that wilderness managers feel define 

the most outstanding existing solitude opportunities in Tongass wilderness. [Id. at 3 

(emphasis added); see also id. at 9: “it is felt that most visitors would not encounter more 

than one group per a 5-day visit during the high use season” (emphasis added)]. That 

“feeling” is wildly inconsistent with what these resource managers actually found – that none 

of the areas they visited provided such an opportunity entirely because of marine traffic. [PR 

793_1292 at 39-40]. None of the recreation studies in the record show that a majority or 

even significant minority of wilderness visitors expect near-isolation during peak seasons. 

Where does this feeling come from? 

These numerical criteria for solitude fails to recognize that: 

[i]t is important to understand that people have different views of 

solitude, and thus the degrees of solitude can vary in each individual. For 
69

example, a person that lives in a metropolitan city can come to a wilderness 

area, and hear 10 floatplanes and 25 jet boats during a 3-day weekend, and 

express a high level of isolation from most sights and sounds of humans while a 

person from a small town can experience an equal number of floatplanes and 

jet boats throughout the same time frame, and express a low level of isolation. 

The same can be said for a local individual who visits a wilderness area 

frequently and an individual who is visiting that wilderness for the first time. 

Every person has a set of experiences, perceptions and relationships that have 

shaped their life, and thus every person might have a different expectation for 

the degrees of solitude. [PR 793_0890 at 5 (Forest Service 2010)]. 

The Wilderness Resource Report now states that the 3 party per day standard is not 

good enough based on three reasons: (1) “nowhere is it asserted that meeting fewer than 

three parties per day equates with upholding outstanding opportunities for solitude”; (2) the 

standard allows for meeting two groups of twelve per day (the wilderness group size limit) or 

168 people per week in the wilderness, which has not been equated with providing 

Outstanding Opportunities for Solitude” and (3) it questions whether meeting up to three 

parties per day is a desirable standard. [PR 793_1292 at 19]. However, the encounter 

monitoring guides in the record show that there is a weak relationship between the number 

of encounters and solitude opportunities, with one disruptive encounter being worse than 

multiple encounters, and long blocks of time alone in wilderness can provide solitude even 

with a large number of encounters. [PR 793_0440; PR 793_0270 (Cole 1997)]. 

The statements and feelings that Forest Plan standards are not enough to preserve 

solitude simply do not provide a reasoned explanation of the policy change necessary to 

satisfy the Administrative Procedure Act – particularly in light of a record showing a 

significant departure from agency practice, the recommendations of the monitoring guides 

and protocols to measure off-wilderness impacts in a very different way and the agency’s own 

data which shows that the “feelings” of resource managers that solitude seekers adjacent to 

wilderness should have a kayaking experience free of other boats for four days at a time are 

blatantly unreasonable. 

3. Conclusion and suggested resolution 

The Draft ROD and FEIS rely on the 2012 Wilderness Character Monitoring Plan and 

2012 Solitude Monitoring Protocol which establish a significant reversal of agency policy 

regarding non-wilderness activities. The approach to counting sightings of vessels as a 

“social encounter” is inconsistent with ROS standards, the Shoreline I plan, other Tongass 

National Forest Ranger District encounter definitions, and the recommendations of 

professional wilderness resource managers in the record. The only numerical criterion that 

has received adequate analysis and opportunity for public comment is the Forest Plan 

standard of less than 3 encounters per day within Wilderness. The FEIS needed to provide a 

detailed justification for any deviation from that standard – whether as an indicator, 

monitoring flag, or otherwise described. It was arbitrary to hide this change in underlying 

documents that have not been subject to NEPA review. It was arbitrary to omit a reasoned 

explanation for the policy change as required by the APA. 

The Reviewing Officer should direct the Responsible Official to prepare an additional 

NEPA analysis that makes clear that the ROS social encounter standard of 3 groups per day 

is to govern future management actions and be the primary metric for assessing project 

impacts to wilderness solitude, and modify the analysis accordingly. 
70

C. Objection Point 15: The FEIS fails to consider relevant factors such as historic marine 

traffic or make a rational connection between off-Wilderness non-social encounters and 

in-wilderness guided public use 

1. Statement referencing prior comments and explaining how violates law, statute or 

regulation 

The Boat Company’s DEIS comments questioned the use of the monitoring data to 

draw conclusions about solitude opportunities given the maritime history of the area and 

requested that the analysis compare outfitter/guide actual use data with the agency’s 

encounter monitoring data to determine whether the agency’s use/impact assumptions were 

reasonable. [PR 793_0845 at 49, 61-63]. The Forest Service justifies its saltwater encounter 

standard in part based on court cases ruling that NEPA analyses must disclose impacts to 

wilderness originating from off-wilderness sources. [FEIS, Appx. E at E-37]. The Boat 

Company made precisely this point in its DEIS comments when it suggested that the correct 

approach under NEPA for addressing adjacent to wilderness impacts was to acknowledge 

marine traffic uses adjacent to Wilderness in the environmental consequences section of the 

Wilderness Chapter. For example, in Vermonters for a Clean Environment v. Madrid, the 

court ruled that the Forest Service met its obligations under NEPA by analyzing visual and 

sound impacts on wilderness that would result from construction of an adjacent wind farm. 

[Vermonters for a Clean Environment v. Madrid, 73 F.Supp.3d 417, 425 (D. Vermont 2014). 

The FEIS provided this analysis, but went much further, deciding to establish a saltwater 

encounter standard that explicitly includes “a monitoring party ... kayaking along wilderness 

shores” counting non-social encounters with off-wilderness vessels and planes. PR 

793_1292 at 15]. 

The Wilderness Act requires agencies to administer Wilderness areas so as to preserve 

their Wilderness character. [16 U.S.C. § 1133(b)]. Wilderness scholars refer this directive as 

the “non-degradation principle,” which seeks to ensure that wilderness values do not decline 

over time, relates back to the time of wilderness designation. [PR 793_0902 at 4 (Freimund 

& Cole, comps. 2001)]. The primary rationale for the Forest Service’s belief in the 

degradation of solitude opportunities is the assumption that there was low potential for 

encounters along saltwater travel routes adjacent to wilderness. [PR 793_0828 at 2-3]. Now 

that recent monitoring has led to the discovery of a large number of boats in northern 

southeast Alaska, Shoreline II staff determined that there are no solitude opportunities 

anywhere. [PR 793_0017]. 

The FEIS cites two recent cases, Izaak Walton League of America et al v. Tidwell, and 

Vermonters for a Clean Environment v. Madrid. [Izaak Walton League of America et al v. 

Tidwell, Cv No. 06-3357 (LRT/LIB) (D. Minn. 2015);21 Vermonters for a Clean Environment v. 

Madrid, 73 F.Supp.3d 417 (2014)]. Importantly, one of the major differences between the 

cases relied on by the Forest Service and Shoreline II is that both cases involved agency 

activity outside of wilderness. 

In the case of Shoreline II, the state of Alaska has jurisdiction over the tidelands and 

submerged lands adjacent to federally owned Wilderness areas. [PR 0152 at 1]. The Alaska 

Statutes prohibit restricting access to state waters with limited exceptions. [Id. at 2]. The 

Forest Service has previously recognized that “[t]he Tongass National Forest has no 

jurisdiction on the number or size of boats that are in marine waters. Our authority to 

regulate commercial use lies in the number of people and group size that go to shore above 

mean high tide. [Exh. 3 at 1 (Cole 2011); see also Shoreline I, FEIS Vol. II at 1-27(responding 

 

21 This is an unpublished case; The Boat Company cites page numbers based on a pdf file created 

from the document, which does not provide page numbers. 
71

to public requests to manage saltwater use by explaining that the State of Alaska manages 

these areas)]. 

The cases the FEIS cites are different because they address agency activity – such as 

authorizing a snowmobile trail or wind farm outside of wilderness. [Izaak Walton League of 

America v. Kimbell, 516 F.Supp.2d 982, 989 (D. Minn. 2007)(holding that “an agency’s duty 

to preserve wilderness character ... may apply to agency activity that occurs outside the 

boundaries of the wilderness area”)]. In such a case, courts assess whether an agency 

action impermissibly degrades wilderness character by considering “(1) the nature of the 

agency activity; (2) the existing character of the wilderness areas; and (3) the extent to which 

the essential, natural characteristics of the wilderness area are changed by the agency 

activity in question.” [Izaak Walton League of America, Cv No. 06-3357 (citing Izaak Walton 

League of Am. Inc. v. Kimbell, 516 F.Supp. 2d 982, 989 (D. Minn. 2007)]. 

This guidance is useful for showing how the analysis in the FEIS is arbitrary under 

NEPA and the APA. First, the FEIS is arbitrary because it fails to provide a reasonable 

description of the existing character of the wilderness areas. Second, although there is no 

“agency activity” outside of wilderness that changes the characteristics of the wilderness 

area, the FEIS never tested its underlying hypothesis that reducing outfitter/guide activity 

within wilderness would have the desired result of reducing off-wilderness impacts. The Boat 

Company’s DEIS comments requested that the analysis discuss where and to what extent 

guided public use impairs Wilderness values. Because the perceived crowding issue pertains 

to impacts caused by non-social, off-wilderness encounters or sightings, the Forest Service 

needed to examine whether management actions to restrict guided use of shoreline areas 

would actually alleviate perceived crowding concerns. In other words, how can 

outfitter/guide management somehow transform marine travel routes into remote, lightly 

impacted areas when the perceived problem relates to observations of fishing vessels, private 

yachts and cruise ships which operate outside of the agency’s jurisdiction? 

The Boat Company’s scoping comments thus explained that it is critical for the 

Shoreline II NEPA analysis to integrate the outfitter/guide use database with encounter 

monitoring data in order to assess whether there is an actual relationship between 

outfitter/guide use and perceived impacts to solitude opportunities. Whittaker and Shelby’s 

review of the carrying capacity analysis reiterated this point in emphasizing that the analysis 

needed to address use-impact relationships by comparing the respective encounter 

monitoring and commercial use databases. [PR 793_0267 at 15]. But the analysis never 

attempted to use readily available data to evaluate the Forest Service’s assumption. 

NEPA requires the Forest Service to obtain missing information or justify its omission, 

explain the relevance of the information in the EIS and supply what evidence and analysis it 

can. [40 C.F.R. § 1502.22]. This effort is necessary “to obviate the need for [] speculation by 

insuring that available data is gathered and analyzed prior to the implementation of the 

proposed action.” [Foundation for N. Am. Wild Sheep v. U.S. Dep’t of Agric., 681 F.2d 1172, 

1179 (9th Cir. 1982)(emphasis added)]. In the absence of a description of relevant data, 

“there is simply no way to determine what effect [an action] will have on the environment, 

and consequently, no way to comply with NEPA.” [Half Moon Bay Fishermen’s Mktg. Ass’n v. 

Carlucci, 857 F.2d 505, 510 (9th Cir. 1988)]. The Forest Service had the data it needed to test 

its assumptions but failed to analyze it, violating NEPA. 

Further, the Administrative Procedure Act (APA) requires that an agency “examine the 

relevant data and articulate a satisfactory explanation for its action, including a “rational 

connection between the facts found and the choice made.” [Motor Vehicle Manufacturers 

Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)]. An agency action is 

“arbitrary and capricious if the agency ... entirely failed to consider an important aspect of 

the problem, offered an explanation for its decision that runs counter to the evidence before 
72

the agency, or is so implausible that it could not be ascribed to a difference in view or the 

product of agency expertise.” [Id.]. The analysis assumed that limiting guided public use 

would address the Forest Service’s concern with marine traffic, yet the agency never reviewed 

its own data to assess the relationship between guided public use and off-wilderness 

encounters. It thus fails to make the requisite rational connection between the facts found 

and choice made, and offers a contrary and implausible explanation. 

2. Statement of supporting reasons 

a. The FEIS failed to assess the existing character of the wilderness area in terms 

of historical use adjacent to the wilderness area 

In the 2015 Izaak Walton League case, the sounds of snowmobiles and other motorized 

sounds already impacted the Wilderness area and thus the construction of a new 

snowmobile trail adjacent to wilderness was “not in conflict with the existing character of the 

wilderness.” [Izaak Walton at pdf 7]. The court specifically recognized that historical traffic 

adjacent to the wilderness area was relevant to whether or not an additional off-wilderness 

activity would impair wilderness values: “... in an area that has been surrounded by 

snowmobiles and other motorized traffic since the time it was designated as wilderness ... 

and the expectation of solitude is slim, [the snowmobile trail] does not amount to an 

impermissible degradation of the area’s wilderness character.” [Izaak Walton League at pdf 

10]. 

In its predecessor case, the court set forth the applicable standard for considering 

adjacent to Wilderness activities that could degrade wilderness values: 

... if the wilderness area is affected by sounds caused by recreationists on 

private property adjacent to the wilderness, agency activity that affects that 

same wilderness area with sound that is similar in volume, duration, frequency 

and quality, is unlikely to result in a violation of §4(b)]. In other words, where 

the agency activity does not increase or exacerbate the existing sound impact 

on the wilderness area, such activity would not degrade the wilderness 

character of the area. 

Similarly, in Vermonters for a Clean Environment, plaintiffs challenged a Forest Service 

authorization of a wind farm outside of wilderness on the ground that noise impacts would 

degrade wilderness characteristics. [Vermonters for a Clean Environment, 73 F.Supp.3d at 

433]. The court noted that the wilderness area was already close to a state highway and 

snowmobile trail, and subject to mechanical sounds and traffic noise at the time of 

wilderness designation. [Id. at 434]. Therefore no wilderness degradation would occur. [Id.]. 

As previously noted, there is no agency activity in play here. However, the Wilderness 

Use Area service day allocations clearly respond to the Forest Service’s determination that 

marine traffic impairs solitude. The Boat Company’s DEIS comments thus requested that 

the analysis consider historical and existing conditions in assessing the perceived 

degradation of solitude opportunities by commercial fishing vessels and private yachts. But 

the Forest Service reached its conclusions about degraded solitude opportunities without 

ever considering that Chatham Strait, Frederick Sound, Icy Strait, Stephens Passage, Lynn 

Canal and portions of the outer coast near ports were heavily used marine travel routes at 

the time of wilderness designation. Some uses have increased, others have decreased. Thus, 

traffic may not have changed along marine travel routes to a significant extent relative to 

baseline conditions at the time of wilderness designation. The FEIS arbitrarily used data 

collected as part of the initial inventory effort to support the assumption of degraded solitude 

opportunities rather than for the stated purpose of providing a baseline to evaluate changed 

conditions over time. 
73

The 2012 Wilderness Solitude Plan identifies areas at risk based on an assumption 

that potential for encounters on “national forest lands and saltwater travel routes is low.” 

[793_0828 at 2]. This assumption caused the Forest Service to believe that its recent 

collection of off-wilderness monitoring data shows an impairment of wilderness values. But 

well before the Forest Service launched its monitoring kayaks, the Shoreline I FEIS 

recognized that “[p]erceptions of crowding are occurring primarily on the saltwater,” 

demonstrating that marine encounters have been a component of the region’s history much 

longer than the recent of period of monitoring would indicate. [See Shoreline I FEIS, Vol. II at 

1-27]. 

The Forest Service’s wilderness impairment assumption arbitrarily ignored existing 

conditions at the time of wilderness designation. Monitoring efforts to date are only useful as 

preliminary, baseline data about current conditions and it is arbitrary to utilize that data – as 

the Forest Service did - suggest degraded conditions for solitude seekers. One of the 

purposes of encounter monitoring is to develop an inventory that can be used to assess 

change over time. [PR 440 at 1 (Hall and Broom 2008)]. Initial monitoring efforts are then to 

document baseline conditions, even if they do not accurately show changes in wilderness 

character, since most wildernesses do not have appropriate historical data. [PR 793_0130 at 

11 (Landres et al 2008)]. Baseline conditions are a beginning point for tracking trends and 

do not imply that conditions are good, bad or desired – “for example, at the time of 

designation a wilderness may have existing roads, and these roads would be part of the 

baseline condition of this wilderness.” [Id.; see also PR 793_0878 at 19 (Landres et al. 

2015)(features in existence at the time of designation are a baseline condition). Indeed, the 

Wilderness Character Monitoring Plan recognizes that the Tongass National Forest 

wilderness managers are just now beginning the process of developing baseline condition 

information. [PR 793_0824 at 4]. 

But then the Forest Service misuses its initial inventory data to conclude that 

opportunities for solitude are degraded based on marine traffic. [FEIS at 3-39; PR 793_0828 

at 1-2]. The 2012 Wilderness Solitude Plan speculates that solitude opportunities “may be 

changing” and anticipates responsive management action. [PR 793_0828 at 1]. Wilderness 

group monitors who collected data for the Forest Service assume that users of the form 

would be “the only boat in the bay” and “the only ones on the beaches.” [PR 793_0899 at 7]. 

But the assumption that marine traffic has significantly increased is wrong; southeast Alaska 

waters have never been unoccupied. The belief that sea kayakers using state waters 

adjacent to wilderness would be undisturbed by the region’s commercial fishing economy and 

private boaters ignores historic use, particularly the maritime history of the region. [Cf.

PR793_0890 at 6 (Forest Service 2010)(acknowledging that the Stikine River has been a 

major transportation route for centuries and identifying commercial fishing activities as part 

of the baseline)]. 

The Boat Company recognizes that use patterns have changed, but questions whether 

the monitoring protocol’s emphasis on non-wilderness vessel sightings reflects the actual 

maritime traffic patterns adjacent to Wilderness at the time of designation. The Boat 

Company’s scoping comments provided data showing that a significantly larger number of 

active fishing vessels worked southeast Alaska’s waters at the time of ANILCA, particularly in 

smaller communities adjacent to more remote wilderness areas.22 Further, while it is clear 

 

22 While the reasons for these changes are beyond the scope of this letter, The Boat Company’s 

conservation director and attorney have extensive experience commercial fishing in Southeast Alaska 

predating the enactment of ANILCA. Major changes affecting the number and distribution of fishing 

vessels include the federal Individual Fishing Quota (IFQ) program, which reduced the number of 

active fishing vessels and a reduced role for rural fishing outports (e.g. Angoon, Kake, Pelican and Port 

Alexander). 
74

that cruise ship travel has increased since 1980, the analysis failed to consider whether this 

type of impact – the presence of large ships offshore – is any more significant given the 

intensity of use of saltwater travel routes by tugs and barges associated with the timber 

industry. 

Across southeast Alaska, the number of active seine boats fluctuated around 400 

vessels from 1978 through 1999; since that time, between 200 and 250 vessels are actively 

fishing on an annual basis. [PR 793_0268 (ADF & G 2015)]. Alaska’s Commercial Fishery 

Entry Commission maintains a database that displays historical and current fishery 

participation by community and year.23 As shown in the table below, figures obtained from 

that database show an overall decline in the number of active fishermen from major fishing 

ports nearby Shoreline II wilderness areas from 1980 through 2013. Notably, the steepest 

decline has occurred in small, rural ports most immediately adjacent to wilderness areas 

(Angoon, Kake, Pelican and Port Alexander). 

Community 1980 Permits 

Fished 

Active 

Fishermen 

2013 Permits 

Fished 

Active 

Fishermen 

Sitka 515 370 765 457 

Juneau 677 510 324 217 

Pelican 100 66 27 19 

Port 

Alexander 

53 36 19 15 

Angoon 134 90 15 3 

Kake 131 90 33 22 

Available data show that marine sport fishing participation has increased in southeast 

Alaska since 1980. However, most charter boats operate exclusively on saltwater for fishing 

or sightseeing and do not use the shoreline. [2016 Tongass LRMP at 3-372]. Marine sport 

fishing was clearly an existing condition at the time of wilderness designation, although the 

amount of effort increased significantly through the peak year of 2006. The number of 

charter vessels operating around Sitka has since declined by more than 25% from 2006 – 

2010. [PR 793_0886 (Chadwick & Frenette 2011)]. Indeed, since 2000, there has been an 

overall decrease in the number of charter fishing vessels operating out of northern and 

central southeast Alaska ports (Juneau, Sitka and Petersburg) that access marine waters 

adjacent to Shoreline II wilderness areas. [PR 793_0887 at 15 (Chadwick and Frenette 

2015)]. In other words, if the baseline inventory period is the enactment of ANILCA, 

encounter rates with charter fishing vessels would likely be higher than they were in 1980. 

However, if the baseline period is the initial inventory, charter vessel encounter rates are 

likely decreasing. In other words, the assumption that marine traffic is significantly 

increasing reflects a lack of historical experience and is not supported by relevant data. 

Large cruise ships were also a component of existing conditions at the time of 

wilderness designation and likely constitute the most comprehensively documented increase 

in maritime traffic. [See e.g. PR 793_0279, Figs. 2 & 3 (Schroeder et al 2005)]. As noted in 

the TLMP FEIS, the most substantial growth period for large cruise activity in general 

occurred over the decade and a half prior to the 2008 TLMP Amendment and has since 

 

23 See www.cfec.state.ak.us/fishery_statistics/earnings.htm. 
75

stabilized. [2016 Tongass LRMP FEIS, 3-368]. If the period of time when monitoring effort 

began as the baseline, it is likely that sightings of large cruise ships have been static. 

Further, as noted in the TLMP FEIS, cruise ship passenger activities are concentrated around 

ports such as Juneau that accommodate large or mid-sized cruise ships. [Id. at 3-367 – 3-

371]. Similarly, operations such as The Boat Company have operated in southeast Alaska 

since 1980. There has been more growth in the RSNT SCV sector, but these tours focus on 

nature viewing – a short term use that is concentrated in relatively few areas. [Id. at 3-372]. 

Finally, an important consideration relative to whether sightings of marine traffic has 

degraded solitude opportunities since 1980 pertains to the substantial decline in maritime 

traffic associated with the timber industry. At the time of wilderness designation, tugs and 

barges were transporting between 400 and 600 million board feet of timber in regional 

waterways – indeed, in 1981, the number of log transportation trips was nearly double the 

current amount of cruise ship voyages today. [Cf. PR 793_0271 (Faris & Vaughan 1985) (in 

1981, 964 log rafts were assembled for transport); PR 793_0401 (Southeast Conference 

2014)(30 cruise ships made 500 voyages). While cruise ships frequently run at between 16 

and 18 knots, log tows operate at an average speed of 2 knots. In other words, the impact of 

large vessel traffic in southeast Alaska in 1980 relative to the current condition was likely to 

be more frequent, of longer duration and likely of more intensity for many visitors who would 

likely consider a massive log raft to be a more disturbing encounter than a cruise ship. 

In enacting the Alaska National Interest Lands Conservation Act (ANILCA), Congress 

specifically distinguished between terrestrial and marine protections by adding marine areas 

to the Glacier Bay National Park. [See, e.g. 16 U.S.C. § 3101 et seq.; Appendix § 410hh-1]. 

Indeed, when the Forest Service initiated solitude monitoring in Shoreline II ranger districts, 

an article by former Sitka wilderness manager Mary Emerick and recreation analyst David 

Cole recognized that marine wildernesses were different in terms of the ability to regulate 

marine traffic: 

But the Forest Service does not control the tidelands. So what can be done? 

The first step is to document what is going on. How are opportunities for 

solitude changing? Is there a problem? If so, how bad is it? [PR 793_0126 at 

26 (Emerick and Cole 2008)]. 

Cole and Emerick then concluded that: 

It will not be easy to preserve opportunities that are being lost due to uses 

that occur outside of the wilderness boundary; perhaps it is impossible .... 

Nevertheless, we believe it is our responsibility as wilderness stewards to 

document what is happening in this wild, remote, and unique part of the world. 

[Id.]. 

 The Boat Company believes that the one of the authors’ conclusions – that solitude 

opportunities are being lost – does not reflect a reasonable understanding of the region’s 

maritime history. But they do correctly address the reasonable limits of what the Forest 

Service can do – study and document. Shoreline II staff similarly acknowledge this dynamic 

in recognizing that a “comprehensive solution” to the Forest Service’s desire to reduce marine 

traffic would require the establishment of a marine wilderness area. [PR 793_0216]. But 

instead, the Draft ROD and FEIS sneak through the back door and seek to accomplish this 

result by using the 2012 wilderness monitoring plans and the saltwater encounter standard 

to inform the analysis in the FEIS and decision in the Draft ROD. All the analysis needed to 

do was disclose that the Forest Service had received survey responses indicating a specific 

concern, and acknowledge in the discussion of indirect and/or cumulative effects that 

saltwater recreation adjacent to Wilderness Use Areas may affect a few individuals seeking 

complete solitude at some times and in some places. As explained in the cases referenced in 

the FEIS: 
76

... a per se ban on all agency activity having some impact on the adjoining 

wilderness area would substantially impede [agency] administration of 

wilderness areas, and could serve to expand the wilderness boundaries beyond 

the area established by Congress. An agency ‘must take into account the fact 

that at some point, the wilderness stops and civilization begins.’ Vermonters for 

a Clean Environment at 431].

b. Extent of change to natural characteristics: the FEIS does not link perceived 

crowding with guided public use 

The FEIS identifies perceived concerns about wilderness crowding caused by the 

guided public and assumes that any increase in guided public access – i.e. Alternative 4 - 

would negatively impact wilderness character. [FEIS at 3-39-3-40 and Table 3-13]. But the 

DEIS acknowledged that the agency has no protocol for determining the relationship between 

commercial and non-commercial visitors and impairment of solitude opportunities. [Id. at 3-

92]. In other words, there is no empirical data that “establishe[s] a known relationship 

between use level ... and social impacts.” [See 2004 Shoreline Outfitter/Guide FEIS, Vol. II 

at 3-7]. 

The Boat Company has reviewed the underlying data and analyses that identify 

concerns about preserving outstanding opportunities for solitude in wilderness. The initial 

monitoring effort lacks statistically reliable data about actual Wilderness use, and further 

shows no link between guided visitor use and perceived risks to solitude opportunities. 

Thus, the overall result of the action alternatives – shifting tour operators into areas that are 

operationally unfeasible or towards lower quality experiences - reflects an assumption that is 

not supported either by actual data or the Wilderness Act. This is even though this 

assumption – that Wilderness solitude opportunities are at risk - is the dominant factor in 

the range of alternatives and carrying capacity analysis. 

The use of encounter data to influence outfitter/guide use service day reductions is 

particularly problematic. The following points reference data from the two databases and 

other reports or record sources, and show the absence of a link between outfitter/guide use 

and perceived risks to outstanding opportunities to solitude. 

 Use Area 01-05D, Tracy Arm. Monitoring of Tracy Arm in 2012-2014 resulted in over 

300 total encounters over 32 days of monitoring. But The Boat Company’s review of 

outfitter/guide use data shows that outfitter/guides were only present on three of 

those days – two remote nature tour groups of 3 and 6 people, and one guided kayak 

tour of two people. It is clear that most of the encounters were vessel sightings that 

occurred in state waters - Forest Service personnel monitored Tracy Arm in 2012 for 

13 days and in 2013 for 16 days, with average vessel encounters of 7 per day and 

11.3 per day, respectively. There were only a total of two shoreside encounters each 

year for the entire monitoring period. This data may be useful in showing that state 

waters adjacent to Wilderness do not offer sea kayakers solitude. But there appears 

to be no relationship between risks to OOS and guided visitor access. 

 Use Area 04-07A, Gambier Bay. Encounter monitoring occurred in this area for two 

days in 2012 and 6 days in 2014, with a total of 94 encounters, resulting in a finding 

that the area failed to meet the “Outs Opps Standard.” But outfitter/guides (RemoteSetting Nature Tours) were only present on two of those days, and monitors did not 

encounter the first group (July 30, 2012) and if they did encounter the second group 

((July 14, 2014), it was not shown in the encounter monitoring spreadsheets. Thus, 

this area would receive a substantial reduction in guided visitor access without any 

data showing outfitter/guide encounters. 
77

 Use Area 04-06B, SE Admiralty/Eliza Harbor. 11 days of monitoring in 2012 and 

2013 recorded 81 total encounters. The outfitter/guide use data base showed that 

there was outfitter/guide use on only one of these days (8/4/2012) by a remotesetting nature tour group of six people. 

 Use Area 04-05A, Southwest Admiralty Island. During a one week tour of southwest 

Admiralty Island in August 2014, SCS kayakers recorded no encounters ashore and 

no encounters with outfitter/guides, while recording 18 “medium” solitude encounters 

with boats and 69 total encounters. But there were no encounters ashore, and no 

personal contacts, and no encounters with the small guided fishing groups. Forest 

Service personnel monitored the same area in 2012 over a six day period and 

recorded 21 encounters, mostly with boats. This Use Area is primarily used by just 

one outfitter/guide who takes small groups of 2 – 3 people freshwater fishing. The 

outfitter/guide database showed that this guide used the area on two occasions 

during the survey period and was observed once (out of the 21 total encounters) – 

passing by. 

In other words, the FEIS needed to carefully analyze, and quantify, whether and to what 

extent the perceived risks to solitude actually have a relationship to outfitter/guide use of 

areas managed by the Forest Service. The Boat Company’s review of the encounter and 

outfitter/guide use data for some of the Wilderness Use Areas suggests that outfitter/guide 

encounters may be so rare as to be statistically insignificant relative to sightings of fishing 

boats, planes, etc. 

Further, limiting onshore use is more likely to increase the offshore impacts that concern 

the Forest Service. For example, limiting onshore use will not change the scenic qualities of 

places like Tracy Arm and Red Bluff Bay. Those places will still provide critical features such 

as protected anchorages or viewing opportunities along RSNT SCV travel routes. What will 

happen is that The Boat Company, Un-Cruise and other operators will still use state waters – 

but will be unable to disperse passengers ashore and into the uplands. 

3. Conclusion and suggested resolution 

 The Draft ROD is arbitrary because it relies on an FEIS that violated NEPA and the 

APA by assuming wilderness value degradation relative to historical conditions based on 

recently collected data that was only useful for inventory purposes. Then the analysis 

violated NEPA and the APA because it failed to link guided public use with marine traffic 

impacts, even though the agency’s data would allow it to compare outfitter/guide actual use 

with its encounter data in order to assess whether or not the assumed use/impact 

relationship was correct. 

 The Reviewing Officer should remand the NEPA analysis to the Responsible Official 

with instructions to redo the Wilderness section so as to describe marine traffic as the 

existing environment rather than assume degradation of wilderness values. The Responsible 

Official should then instruct staff to integrate its outfitter/guide actual use database with its 

encounter database so that the analysis can present a reasonable conclusion about 

use/impact relationships. 

D. Objection Point 16: The FEIS uses an arbitrary choice of scale to measure solitude 

opportunities 

1. Statement referencing prior comments 

The Boat Company’s DEIS comments explained that the choice of scale for the analysis – 

shoreline Use Areas only - was both unreasonably narrow in that it excluded hundreds of 

thousands of upland wilderness acreage available to solitude seekers and unreasonably 
78

broad because the saltwater encounter standard and Wilderness “buffer” arbitrarily extended 

offshore the wilderness areas. [PR 793_0845 at 52, 60]. The scale of analysis for solitude 

opportunities was clearly arbitrary – the FEIS removes significant amounts of wilderness 

acreage from the solitude analysis and yet adds off-wilderness area. The FEIS thus never 

considered whether the Forest Service could provide outstanding opportunities for solitude in 

areas where it actually does have jurisdiction. 

NEPA requires that an EIS describe the affected environment as “necessary to understand 

the effects of the alternatives.” [40 C.F.R. § 1502.15]. If the Forest Service had the authority 

to authorize agency activities outside of Wilderness, its analytical responsibilities under the 

Wilderness Act require that an analysis consider “the existing character of the wilderness 

area” and the extent to which the essential, natural characteristics of the wilderness area are 

changed by the agency activity in question.” [Izaak Walton League of Am. Inc. v. Kimbell, 516 

F.Supp.2d at 989]. The saltwater encounter standard extends the Forest Service’s solitude 

analysis outside of wilderness, and yet the agency arbitrarily excludes in-wilderness solitude 

opportunities in determining that solitude is at risk. This is arbitrary. 

Izaak Walton League makes clear that a critical part of this analysis for purpose of 

solitude is scale. In the 2015 Izaak Walton League case, the primary complaint was that the 

new snowmobile would double the amount of noise associated with snowmobile traffic. 

[Izaak Walton at pdf 8]. The court recognized that adjacent snowmobilers would increase 

noise over a portion of the wilderness area, but relatively minor impact on the larger project 

area. [Id.]. The court then approved of a Forest Service analysis that measured the impacts 

of snowmobile traffic adjacent to Wilderness on solitude that measured “the duration of 

sound across the entirety of the week, instead of simply portions of the week. Indeed, to do 

otherwise would mean ignoring the wilderness and the effects or lack thereof of agency 

activity on it, for significant portions of each week.” [Izaak Walton at pdf 9]. 

The court’s view that an analysis of existing conditions for solitude must consider 

more than just one portion of Wilderness is consistent with the understanding of other 

Tongass National Forest Ranger Districts: “there should be places and times within the 

National Wilderness Preservation System and within individual wildernesses where visitors 

find little or no contact with other. However, this does not mean on every wilderness acre all 

the time.” [PR 793_0890 at 4]. The FEIS focused exclusively on Shoreline II Use Areas and 

adjoining marine travel routes, and arbitrarily developed a concern about wilderness solitude 

without ever considering the availability of upland solitude opportunities. [See, e.g. PR 

793_0899 at 7 (showing that Forest Service encounter monitor Adam Andis of the Sitka 

Conservation Society never encountered another party ashore while seeking solitude in 

upland and other portions of the South Baranof Wilderness). 

2. Statement of supporting reasons 

a. The FEIS arbitrarily extends wilderness three miles out to sea to provide a 

“buffer” 

The Visitor Capacity Analysis applies a three-mile buffer around recreation use sites to 

provide adequate spacing between groups “[i]n order to uphold outstanding opportunities for 

solitude in wilderness.” [PR 793_1292 at 5]. It explains that the three mile buffer applies in 

part to be consistent with the ROS Remoteness standard and in part because kayaking 

groups require a three mile distance to lose sight of each other, and kayaking is considered a 

wilderness experience within or adjacent to the analysis area. [Id.]. The Boat Company 

asked that the analysis evaluate this rationale and address the extent to which marine 

recreation activities in state of Alaska waters were exclusively dependent on wilderness. 

Does the three mile distance reflect a subjective judgment based on experience in freshwater 
79

lakes, and does it account for frequent fog, mist and other prevailing southeast Alaska 

maritime weather conditions?24 

The 3 mile buffer outside wilderness departs from indicators recommended by the 

developers of solitude monitoring programs. Landres et al use a remote, trailless indicator 

for outstanding opportunities for solitude and explain that a distance of 1⁄2 mile away from 

shoreline travel routes used by motor vessels “was subjectively chosen as meaningful in most 

wildernesses.” [PR 793_0128 at 188 (Landres et al 2009)]. The Ketchikan-Misty Fiords 

Ranger District’s approach requires that encounters must be “within sight AND sound, OR 

less than 100 yards away.” [PR 793_0891 at 10, 12; PR 793_0274 at 5 (KMRD Solitude 

Monitoring Protocol); see also PR 440 at 11 (Broom and Hall 2008)(with regard to proximity, 

Broom and Hall note that some protocols count any group no matter the distance but do not 

specifically address the wilderness/non-wilderness distinction, while other protocols count 

only groups passed along the trail, and some even distinguish between speaking distance 

encounters (25 feet) and groups outside of speaking distance)]. The FEIS relied on 

documents produced outside of the NEPA process, and thus failed to discuss and solicit 

public comment on a range of proximity guidelines. It never discloses that its chosen scale of 

analysis is well outside the buffer recommended by the peer-reviewed monitoring protocols or 

other Tongass National Forest districts, or that it is using a kayaking reference book to 

inform the buffer design. 

b. The FEIS arbitrarily excluded substantial portions of Shoreline II Wilderness 

areas from the analysis of solitude opportunities 

In terms of overall acreage, Tongass National Forest wilderness areas offer vastly more 

opportunities for solitude than any other geographic area in the United States. Wilderness in 

southeast Alaska alone comprises 28 percent of the land, 17 percent of all National Forest 

System wilderness and provides 120 acres per resident – twenty times as much as the next 

closest state, Wyoming. [2016 Tongass LRMP FEIS at 3-452]. There are over 2 million acres 

of Wilderness in areas encompassed by Shoreline II alone. [FEIS at 3-27 – 3-29]. The Boat 

Company’s scoping comments questioned whether there is any actual risk to outstanding 

opportunities for solitude given this large amount of Wilderness acreage. But the 

Responsible Official arbitrarily failed to consider upland opportunities away from the 

Shoreline zone, in large part by unreasonably narrowing the scale of analysis to shoreline 

areas. [FEIS at 1-18 (the analysis “only encompasses the general 1⁄2 mile zone from the mean 

high tide inland”)]. 

For example, while the identification of Shoreline II areas where solitude is at risk 

reflects a wilderness visitation indicator (higher encounter rates along non-wilderness marine 

travel routes), the monitoring guides recommended using a remote, trailless indicator that 

measures the number of acres away from access or travel routes. [PR 793_0128 at 181 

(Landres et al 2009)]. This indicator “can easily be measured for all wildernesses.” [Id.]. The 

2009 Interagency guide explains why the two indicators are important: 

The two indicators work tougher to get at two very different aspects: (1) the 

opportunity to get away from people by going off trail and to get away from the 

noise and sights of civilization by being away from roads and other travel 

corridors; and (2) the density of people in the wilderness which affects 

 

24 The Visitor Carrying Capacity analysis cites David Burch’s Fundamentals of Kayak Navigation for 

the hypothesis that kayakers require a 3 mile distance prior to losing sight of each other. Burch 

explains, however (p. 91), that the three mile distance applies only to flat water conditions, and that 

under many maritime conditions (sea height, fog and rain), kayakers would lose sight of each other at 

much closer distances. 
80

opportunities for those going to places where they may encounter other people. 

The first aspect captures the availability of places for solitude seekers; the 

second aspect captures the likelihood that the typical visitor will encounter 

other visitors. [Id. at 184-185 (Landres et al 2009)]. 

In other words, by excluding upland areas, the analysis arbitrarily fails to consider 

available Wilderness acreage where solitude seekers can find opportunities to be alone. The 

use of the remote, trailless indicator recognizes that solitude opportunities increase a short 

distance from access points and trails. Trail use studies have found that most visitor use 

occurs on a small percentage of wilderness trails, with rapid declines in trail use away from 

access points. [PR 793_0275 at 46 (Lucas 1989)]. Also, “fewer than 20 percent [of visitors to 

Forest Service wilderness areas] do any off-trail traveling, and an even smaller percentage of 

the total distance covered in the wilderness is off-trail travel.” [Id.]. Those few visitors who 

do seek absolute solitude in upland areas have been able to find it as shown by Sitka 

Conservation Society trips where they encountered no people at all during a cross-Baranof 

trip or inland hikes in the West Chichagof/Yakobi Wilderness. [PR 793_ 0868, 0899]. In 

other words, crowding at access points does not mean that outstanding opportunities for 

solitude are not available, but rather that many visitors choose more congested areas for 

recreation rather than availing themselves of existing solitude opportunities. [PR 793_0128 

at 185 (Landres et al 2009)]. Indeed, while the 2012 Wilderness Solitude Plan expands its 

buffer out three miles into State marine waters to account for solitude impacts from adjacent 

travel routes, the monitoring guides recommend an opposite approach - deducting the 

amount of shoreline wilderness affected by adjacent travel routes. [PR 793_0130 at 57 

(Landres et al 2008)]. 

3. Conclusion and suggested resolution 

The FEIS expands the wilderness solitude analysis area 3 miles offshore wilderness 

and identifies the off-wilderness sightings of hundreds of boats and planes as impairing 

solitude. It excludes nearly a million acres of upland wilderness that would provide solitude 

from the analysis. This is implausible under State Farm and violates the APA. It violates 

NEPA by using an arbitrary choice of scale and a methodology that lacks professional and 

scientific integrity. 

The Reviewing Officer should direct the Responsible Official to prepare an analysis 

that includes upland wilderness acreage in the evaluation of solitude impacts and either 

develop professionally credible methodologies to assess off-wilderness impacts or simply 

identify the off-wilderness impact as an effect under NEPA with no further analysis as shown 

by the rulings in Vermonters for a Cleaner Environment and Izaak Walton League.

E. Objection Point 17: The Forest Service’s data and conclusions show a need to update 

the ROS descriptions 

1. Statement referencing prior comments and how decision and/or analysis violate law, 

regulation or policy 

The Boat Company’s DEIS comments requested that the Shoreline II NEPA process 

include an update of existing ROS inventories. [PR 793_0845 at 70-71]. Specifically, The 

Boat Company requested an evaluation of whether the exception that discourages managing 

an area within Wilderness as Semi-Primitive should apply in some cases in Shoreline II Use 

Areas now that the Forest Service has made an initial effort to assess the amount of marine 

traffic and concluded that there is a lot of such traffic. The Forest Service makes clear 

exceptions in the lower 48 for areas along either side of a highway, and it should be 

recognized [See ROS User’s Guide § 21.21(2)] that heavily traveled waterways adjacent to 

Wilderness present the same effect. 
81

Under the Recreation and Tourism Inventory guideline (REC1), the Forest Service 

should “update existing ROS inventories as part of specific project planning and 

implementation and whenever project activities cause a change in recreation setting 

conditions significant enough to reclassify the affected area” and “[m]aintain the 

necessary data to determine the individual and/or cumulative changes in ROS class 

distribution throughout the Forest.” [2016 Tongass LRMP at 4-41].

TLMP objectives for Wilderness recreation are to: 

Manage recreation activities so that the levels of social encounters, on-site 

developments, methods of access and visitor impacts indicated for the Primitive 

Recreations Opportunity Spectrum (ROS) Class are emphasized. (see Chapter 4, 

Recreation and Tourism and Appendix I). Areas managed as Semi-Primitive 

within a Wilderness are an exception and not encouraged. [Id. at 3-4]. 

However, despite this lack of encouragement, the Forest Service classifies nearly onefifth of the Wilderness acreage as Semi-Primitive. [2008 TLMP FEIS at 3-367]. The 

remoteness indicator for Primitive areas is: “[n]o or infrequent sights and sounds of human 

activity are present. Setting is located more than 1.5 hours walking or paddling distance, or 

3 miles, from any human developments other than infrequently traveled marine travelways.” 

[2016 Tongass LRMP, Appx. I]. The Forest Plan FEIS recognizes that 18 percent of Tongass 

National Forest Wilderness does not provide a Primitive ROS setting because of marine 

traffic. [2016 Tongass LRMP FEIS at 3-361]. It was arbitrary for the Forest Service to ignore 

the need to update its ROS classification in light of the data showing that Chatham Straits, 

Frederick Sound and Stephens Passage are not “infrequently traveled.” 

2. Statement of supporting reasons 

The FEIS failed to consider how the Forest Service’s recent discovery that there are a 

lot of boats in southeast Alaska relates to the TLMP’s reference to “infrequently traveled 

waterways.” “Infrequent” means “seldom happening or occurring: rare” and “placed or 

occurring at wide intervals in space or time.”25 In over 100 days of monitoring Tracy Arm 

and Endicott Arm, the Forest Service recorded nearly 1,700 “encounters” which “primarily 

reflect vessels” as there were only four social encounters ashore in wilderness. [PR 793_1292 

at 34, 39]. The Forest Service recorded similar levels of vessel encounters in Gut Bay and 

Whale Bay (roughly 10 per day). [Id. at 45]. At what point will the Forest Service recognize 

that these are not infrequently traveled waterways, even if the TLMP “discourages” a change 

in ROS classification. ROS classifications are simply a snapshot in time that describes and 

inventories recreation settings, [2008 TLMP FEIS at 3-386], meaning that if decisions are 

based on ROS, those classifications should accurately reflect conditions at the time of a 

decision. 

Simply put, if the Forest Service refuses to change the Primitive ROS classification, the 

waterways adjacent to Wilderness Use Areas must be, by definition, “infrequently” traveled by 

boats. How then can the Forest Service develop a plan based on the assumption that marine 

traffic harms solitude? Conversely, if the Forest Service believes that 10 vessels per day is 

“frequent,” the ROS classification is wrong. In other words, the ROS description and the 

analysis contradict each other, and yet the FEIS relies on both to achieve the desired result 

of restricting guided public access to Wilderness. Indeed, even as the Wilderness Resource 

Report insists that the Primitive ROS standard does not provide solitude, it admits that the 

 

25 See www.merriam-webster.com/dictionary/infrequent
82

classification is wrong by stating that “multiple encounters per day with marine vessels and 

aircraft are common and marine highways are traveled more than ‘infrequently.’” [PR 

793_1292 at 19]. And it asks how to preserve solitude “in wilderness areas that have 

intimate connections with busy marine travelways.” [Id. at 18]. 

3. Conclusion and suggested resolution 

 The Draft ROD and FEIS unlawfully fail to consider updating the ROS classification, 

even though the agency has clearly found that adjacent marine traffic is “busy” and “marine 

highways are traveled more than infrequently.” It is implausible to reconcile the ROS 

classifications with the agency’s findings, eliminating the possibility of a rational connection 

between facts found and choices made. The refusal to update the ROS classification violated 

the APA. The Forest Service hides behind a ROS classification that the agency’s data and 

comments show is clearly inaccurate to support the allocation of guided public service days. 

The Forest Plan requires an update when data show it to be necessary. 

 The Reviewing Officer should direct the Responsible Official to initiate a Forest Plan 

Amendment that revisits the ROS classification. Administrative burdens should not be an 

excuse. The Forest Service amends the Forest Plan regularly for timber industry interests, 

such as when the industry requires relocations of Old-Growth Reserves. 

F. Objection Point 18: The FEIS arbitrarily fails to distinguish between solitude 

opportunities and primitive and unconfined recreation 

The FEIS focuses narrowly on one particular Wilderness value - “outstanding 

opportunities for solitude.” [FEIS at 3-22]. The analysis in the Wilderness section relies on 

documents produced outside of the NEPA process in 2012 – the 2012 Wilderness Character 

Monitoring Plan, [id. at 3-22], which in turn reflects measures developed through a 

September 2012 document, the “Tongass National Forest Wilderness Plan for Preserving 

Outstanding Opportunities for Solitude.” [PR 793_0828]. The Boat Company was aware that 

a subjective view of Wilderness solitude was likely to drive the range of alternatives for the 

project, and its second set of scoping comments requested that the NEPA analysis include a 

section that discusses the Act’s requirements for both solitude and primitive recreation 

opportunities set forth in the “outstanding opportunities” clause, and consider different 

management approaches to preserving those values. 

The Shoreline II Visitor Capacity Analysis erred in assuming that managing for 

solitude would preserve other wilderness recreation values. [See PR 793_0054 at 5 

(explaining the management focus on the social experience, and asserting that protecting 

solitude opportunities “should ensure that the other qualities fare well”)]. The Wilderness 

section in the FEIS repeats this error and ignores the numerous relevant studies that identify 

important analytical issues caused by managing solely for solitude. 

 The failure of the Wilderness section to respond to The Boat Company’s research and 

informed comments was disturbing, and failed to take a hard look at critical issues because 

the Forest Service had predetermined that the guided public was depriving solitude seekers 

of solitude opportunities. [See Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000)(NEPA’s 

hard look requirement “must be taken objectively and in good faith, not as an exercise in 

form over substance, and not as a subterfuge designed to rationalize a decision already 

made”)]. 

As previously noted in these comments, Shoreline II personnel struggled with two 

critical questions: (1) why reduce guided public access when the guided public is not 

compromising solitude and guided public use is really low and (2) should the Forest Service 

allow guided public access at all when there are substantial numbers of vessels operating 

adjacent to a Wilderness area? [PR 793_0216]. The analysis dodged the difficult and 
83

important issues raised by The Boat Company. It instead developed numerical formulas for 

a narrow and inappropriately weighted set of solitude indicators to justify limitations on 

guided public access. 

1. Statement Referencing Prior Written Comments and Content of Objection and 

Explaining How Decision and/or Analysis Specifically Violate Law or Regulation 

The Boat Company’s DEIS comments asked the Forest Service to distinguish between 

outstanding opportunities for solitude and outstanding opportunities for primitive and 

unconfined recreation, and disclose that preserving one value can compromise the other 

value. [PR 793_0845 at 42-44]. The Wilderness Act (“the Act”) provides that wilderness 

areas “shall be administered for the use and enjoyment of the American people in such a 

manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as 

to provide for the protection of these areas, the preservation of their wilderness character, 

and for the gathering and dissemination of information regarding their use and enjoyment as 

wilderness.” [16 U.S.C. §1131(a)]. The Act defines wilderness as an area that “generally

appears to have been affected primarily by the forces of nature, with the imprint of man’s 

work substantially unnoticeable” and has “outstanding opportunities for solitude or a 

primitive and unconfined type of recreation.” [16 U.S.C. §1131(c)(emphasis added). 

Importantly, the Act’s “outstanding opportunities” clause explicitly distinguishes 

between “outstanding opportunities for solitude” and “outstanding opportunities for a 

primitive and unconfined type of recreation” by separating the two values with the word “or”: 

“opportunities for solitude or a primitive and unconfined type of recreation.” [16 U.S.C. 

§1131(c)(emphasis added); see also TLMP at 3-7 (directing managers to “provide ... 

opportunities for solitude or primitive recreation activities consistent with wilderness 

preservation”)]. Even though these two qualities are different, the FEIS arbitrarily lumps 

them together for purposes of measuring effects. [FEIS at 3-38]. 

The FEIS justified its approach to guided public access based on the Wilderness Act’s 

“outstanding opportunities clause” but failed to recognize the distinction between 

opportunities for solitude and opportunities for primitive and unconfined recreation. It failed 

to discuss a reasonable interpretation of the “outstanding opportunities” clause that 

emphasize opportunities and instead developed an effective mandate to provide solitude in all 

areas and at all times. The focus on solitude thus failed to consider important aspects of the 

outstanding opportunities clause, violating the APA and failing to provide a full and fair 

discussion of the issues as required by NEPA. [See Motor Vehicle Manufacturers Assoc. v. 

State Farm Mutual Automobile Ins. Co, 463 U.S. 29 (1983)(an agency rule is arbitrary and 

capricious and violates the APA if the agency “entirely failed to consider an important aspect 

of the problem”); 40 C.F.R. § 1502.1]. Further, the refusal to disclose or consider the known 

tension between the two values enunciated in the “outstanding opportunities” clause 

identified in numerous Wilderness research efforts and studies was disturbing. The 

Wilderness chapter in the FEIS ignored the professional expert interpretations of the clause 

and the relevant scientific documents submitted by The Boat Company, violating NEPA. [40 

C.F.R. § 1502.24 (“[a]gencies shall insure the professional integrity, including scientific 

integrity, of the discussions and analyses in environmental impact statements”)]. 

The Wilderness Act charges the Forest Service with maintaining wilderness character 

and providing opportunities for wilderness recreation. [16 U.S.C. § 1133]. Because the Act 

imposes a “diverse, and sometimes conflicting list of responsibilities” on Wilderness 

managers, the intent of Congress is “arguably ambiguous.” [High Sierra Hikers Ass’n v. 

Blackwell, 390 F.3d 630, 647-648 (9th Cir. 2004)]. Thus, to meet NEPA’s hard look 

requirement and standards under the APA, the analysis needed to reflect a thorough 
84

interpretation of the Act’s “outstanding opportunities” clause, consistency with prior agency 

interpretations of the clause, a logical and careful decision, and appropriate level of process. 

[Id. at 648]. 

But here the FEIS was arbitrary in several respects because the analysis: 

(1) omitted any discussion of the tension between solitude and primitive and unconfined 

recreation or consideration of different, reasonable interpretations of the Act’s 

“outstanding opportunities” clause ; 

(2) failed to consider different, reasonable interpretations of the Act’s “outstanding 

opportunities” clause that suggest the Act is satisfied when there are areas or times 

within Wilderness that provide solitude opportunities, even if there is some temporal 

and spatial variability in the types of solitude opportunities available; 

(3) failed to disclose or consider the extent to which the management approach favors a 

small amount of users and displaces other, legitimate Wilderness recreationists and 

(4) failed to discuss and disclose the subjective nature of defining Wilderness solitude or 

review the scientific literature and studies showing different visitor perspectives about 

solitude and its relationship to a quality recreation experience. 

2. Statement of supporting reasons 

a. The FEIS failed to disclose professional interpretations of the Outstanding 

Opportunities Clause 

As wilderness scholars have observed, “Congress did not quantitatively define such 

terms as unimpaired, substantially unnoticeable, natural conditions, primitive recreation, or 

solitude.” [PR 793_0133 at 20 (Haas et al 1987); see also PR 793_0130 at 25 (Landres et al 

2008)(explaining that the legislative history of the Act provides little insight into the wording 

of §1131)]. The use of terms such as “generally,” “primarily,” and “substantially” suggest that 

a limited amount of change would not conflict with the Act. [PR 793_0278 (Roggenbuck & 

Watson 1993)].26 Over time, wilderness management and planning have emphasized solitude 

“as the dominant criterion for evaluating wilderness visitor experiences.” [PR 793_0272 

(Glaspell et al 2003)]. But “human use of wilderness is not only acceptable, it is part of the 

wilderness mandate.” [PR 793_0278 (Roggenbuck & Watson 1993)]. 

The FEIS arbitrarily fails to distinguish between solitude and primitive and unconfined 

recreation opportunities. The response to comments insists that the FEIS reveals this 

tension by adding the two scores together so that the good primitive recreation scores offset 

the low solitude scores. [FEIS, Appx. E at E-30]. This response is absurd in light the 

extensive discussion and research in the project record literature showing the two qualities to 

be competing values. 

The outstanding opportunities clause is clear – the agency must manage for both 

solitude and primitive recreation. It is clear that the two components of the Act’s 

“outstanding opportunities” clause can be competing wilderness values and management 

approaches that seek to protect quality solitude experiences can diminish opportunities for 

primitive and unconfined recreation, thus entailing difficult decisions about how to balance 

the competing values. [PR 793_0283 (Watson et al 2000); 793_0902 at 42 (Freimund and 

 

26 See also Wilderness Watch v. U.S. Fish and Wildlife Service, 629 F.3d 1024, 1033 (9tH Cir. 2010)(“... 

Congress did not mandate that the Service preserve the wilderness in a museum diorama.” ... 

“Instead, Congress stated that the wilderness was to be preserved as wilderness and made accessible 

to people, “devoted to the public purposes of recreational, scenic, scientific, educational, conservation, 

and historical use“). 
85

Cole, comps. 2001);27 PR 793_0128 at 183-184 (Landres et al 2009) (“a tension exists 

between providing opportunities for solitude and ensuring opportunities for unconfined 

recreation”)]. Similarly, the Ketchikan Misty Fiords Ranger District’s Outfitter/Guide 

Management Plan FEIS recognizes that restricting guided public access favors solitude at the 

expense of primitive and unconfined recreation experiences. [PR 793_0273 at 73; see also PR 

793_0128 at 215 (Landres et al 2009)(explaining that management actions to increase 

solitude are confining and thus reduce primitive recreation opportunities)]. 

The Wilderness section in the FEIS ignored the tension between these competing 

values. The analysis dismisses opportunities for primitive and unconfined recreation entirely 

by choosing two indicators to address impacts to primitive and unconfined recreation that 

resulted in good scores and enabled the agency to dismiss away adverse impacts. [FEIS at 3-

35]. The unconfined indicator, management restrictions on visitor behavior, received a good 

score because the FEIS identified only minimal restrictions reflected by group size limits of 

12, and identified a good condition for all areas. [Id.]. The FEIS then concluded that 

Shorelin II would not affect primitive and unconfined recreation. [Id. at 3-39]. 

This assumption was unreasonable. The monitoring guides upon which the 

Wilderness resource analysis purports to rely explain that “as recreation demand increases, 

actions such as use limits that are taken to improve opportunities for solitude place 

constraints on visitors and are thus confining.” [PR 793_0128 at 184, 215 (explaining that 

“regulatory actions taken to increase opportunities for solitude will be confining”]. As 

explained in the preceding sections, Shoreline II limits the thousands of Americans who 

utilize RSNT SCVs to experience particular Wilderness Use areas primarily due to a perceived 

concern about solitude. There are less service available than Shoreline I provided. The Draft 

ROD thus imposes management restrictions and reduces opportunities for primitive and 

unconfined recreation. 

 The FEIS also failed to reflect an adequate review of relevant literature and other 

wilderness management and planning materials that interpret the “outstanding 

opportunities” clause. For example, many scholars emphasize Congress’s use of the word 

“opportunities,” which implies that “outstanding opportunities for solitude need not be 

provided on every acre of wilderness at all times” – opportunities would then mean that 

 

27 Troy Hall explains that: 

... wilderness-dependent uses may be in conflict with one another. An illustrative 

example can be found at Mt. Hood Wilderness. There, managers developed policies that 

were intended to protect the wilderness-dependent experience of solitude. Because use 

was increasing rapidly, the only action deemed likely to achieve this objective was to 

limit use, and thus a quota was proposed for several trails, including the primary 

climbing route up the peak. In this case, solitude seekers were to be privileged. 

However, the action would at the same time disenfranchise two other types of users

(those seeking freedom from regulation and mountain climbers seeking the challenges 

of climbing glaciated peaks). Interestingly, this dilemma was not mentioned or 

discussed; solitude was assumed to take precedence. One could reasonably argue that 

the challenge of climbing glaciated peaks is a wilderness-dependent experience, 

especially in the Pacific Northwest, where all such peaks are in Federally designated 

wilderness. Similarly, freedom (although perhaps not explicitly mentioned by name in 

the Wilderness Act) is a value very much in harmony with the intent of the Act. In this 

example, a case could probably be made that experiences of climbing are more difficult 

to obtain than experiences of solitude within the region. One might also argue that the 

day users bearing the brunt of the proposed use limits might value freedom and 

spontaneity more than solitude during their trips to Mt. Hood. Weighing and resolving 

these competing values of wilderness will not be easy. An open discussion of 

opportunities, and their dependence on wilderness, is needed. 
86

solitude seekers can always find places and times of solitude - even in busy areas - by simply 

leaving the trail. [PR 793_0902 at 4 (Freimund and Cole, comps. 2001); PR 793_0440 at 4 

(Broom and Hall 2008)(“the Act specifies that wilderness will provide outstanding 

opportunities for solitude, as opposed to guaranteeing that visitors will have actual 

experiences of solitude”)]. 

Courts reviewing solitude issues clearly agree that the Wilderness Act requires 

agencies to consider the temporal and spatial distribution of solitude opportunities – the Act 

does not mandate solitude for every portion of Wilderness under analysis, nor does it require 

agencies to attempt to create off-Wilderness solitude. [Izaak Walton League of America et al v. 

Tidwell, Cv No. 06-3357 at pdf 7-9 (LRT/LIB) (D. Minn. 2015);28 Vermonters for a Clean 

Environment v. Madrid, 73 F.Supp.3d 417, 431-434 (2014)]. approach. Again, the Wrangell 

Ranger District’s monitoring plan reflects this approach: 

The Wilderness Act does not define a single standard for solitude that all 

wilderness areas must meet. It does not state that every acre of a designated 

wilderness needs to provide for opportunities for solitude or that the level of 

solitude should stay the same within and between areas in a certain wilderness. 

It only states that the wilderness has to offer outstanding opportunities for 

solitude or a primitive and unconfined type of recreation. The Wilderness 

Management: Stewardship and Protection of Resources and Values book 

“interprets that to mean exactly what it says: there should be places and times 

within the National Wilderness Preservation System and within individual 

wildernesses where visitors find little or no contact with others. However, this 

does not mean on every wilderness acre all the time. [PR 793_0890 at 4]. 

b. The FEIS fails to consider displacement of the guided American public 

 The FEIS arbitrarily failed to address displacement of the guided public. Different 

management approaches favor some visitor experiences over others. Measures to protect 

solitude disenfranchise other users, and a rigid standard further increases costs to those 

displaced users as it means managing for a smaller segment of the public. [PR 793_0902 at 

41-43 (Freimund and Cole, comps. 2001)].29 A rigid solitude standard can result in 

geographical favoritism (locals versus tourists); financial favoritism (those who can afford 

private means of access versus those who need outfitter/guides, or political favoritism (those 

most closely in line with a purist approach to wilderness solitude and/or the greatest 

influence on the planning process). [Id. at 7]. 

Shoreline II’s emphasis on solitude opportunities at access points in or near the 

wilderness would primarily benefit a small proportion of wilderness users who adhere to 

what scholars describe as a “purist” approach that supports restrictions whenever their 

solitude is at risk. [Id. at 4; PR 793_0275 (Lucas 1989)(noting that roughly a tenth of all 

 

28 This is an unpublished case; The Boat Company cites page numbers based on a pdf file created 

from the document, which does not provide page numbers. 

29 Given the management and monitoring emphasis on solitude for kayakers adjacent to wilderness, 

the FEIS should have explored, for example, how many kayakers using areas adjacent to wilderness 

would consider themselves displaced by encounters. During the first week of August 2012, monitoring 

of southeast Admiralty recorded no sea kayak activity outside of the Pack Creek area. Kayak 

encounters were recorded on 5 out of 30 days in Tracy Arm in 2013 and 2014, and on 3 out of 20 days 

in Endicott Arm over a three year period from 2012 – 2014. TBC also submits that perhaps for all but 

the most experienced and adventurous kayakers, the presence of other vessels provides an added 

measure of safety, so that the number of kayakers disturbed by other vessels would be small relative 

to the overall number of kayakers. 
87

wilderness users belonged to wilderness oriented organizations)]. But the analysis never 

considers whether there are other legitimate users of Wilderness who may not require 

solitude on every acre at all times. [See, e.g. PR 793_0902 at 4-7 (Freimund and Cole, 

comps. 2001)]. Hall and Cole’s 2000 article on displacement warrants discussion and review 

in further NEPA analysis: 

Before endorsing a management approach that seeks to minimize 

displacement of ‘purists’ seeking wilderness experiences most consistent with 

the ideal described in the Wilderness Act, we feel that two questions should be 

answered. First, is there empirical evidence that crowding- and impactsensitive users are displaced by high levels of use and how substantial is this 

displacement? Second, is displacement of “wilderness purists” the only, or even 

the most common, type of displacement? What about users who may be 

“displaced” by actions taken to maintain resources for the benefit of purists? 

[PR 793_0866 (Hall and Cole 2000)]. 

Hall and Cole further explain that if Wilderness managers seek to prioritize those 

visitors who seek solitude, the analysis should explicitly state this preference and 

acknowledge that the management approach favors Wilderness purists over other users to 

seek unconfined recreation opportunities. [Id. at 120]. 

The omission of a guided public displacement analysis was a significant flaw because 

managing primarily for unguided solitude experiences reduces overall public access to 

wilderness. Indeed, Hall and Cole explain that “radical reductions in use would be needed to 

precipitate enough changes to make areas attractive to purists.” [Id.]. The overly restrictive 

management approach also inhibits the achievement of wilderness management objectives 

that seek to provide opportunities for public use, enjoyment and understanding of wilderness 

values. Outfitters and guides are necessary to provide safe access for many visitors to 

Tongass Wilderness areas due to distance, weather and terrain. [PR 793_0891 at 2 (adding 

that unguided access is also limited by the need to acquire, maintain and operate boats or 

aircraft)]. This means that managing for solitude favors local residents with boats or visitors 

who can afford their own means of access over visitors seeking more affordable guided 

services, raising questions about the desirability of managing primarily for solitude. [PR 

793_0902 at 42 (Freimund and Cole, comps.)]. Thus, even though the FEIS implements the 

most rigid solitude standard available as an effort to provide isolation experiences for 

wilderness purists, it never addresses the core issue of whether favoring a small number of 

users would displace the thousands of Americans who visit wilderness areas via RSNT SCVs. 

c. The FEIS fails to disclose the subjectivity of the Forest Service’s solitude 

standard 

The Tongass National Forest’s 2012 Wilderness Solitude Plan recommends that a 

consideration in identifying areas where solitude opportunities are at risk should include a 

visitor perspective on how use levels affect solitude opportunities. [PR 793_0828 at 3]. 

Despite this recommendation, the analysis relies exclusively on a subjective and internal 

agency standard and never discloses that visitor perspectives on elements of a quality 

wilderness experience are diverse. 

Given the subjectivity of the solitude standard and variability of visitor desired 

conditions, The Boat Company recommended that the NEPA process include an effort to 

incorporate the views of guided non-resident visitors through surveys, interviews, and any 

other appropriate means to improve the quality of use data and to ensure that all affected 

members of the public can provide input. A significant flaw with the FEIS was that it ignored 

the various subjective views of solitude, and relied solely on a numerical indicator (no 
88

encounters on 4 out of 5 days) that essentially requires the Forest Service to provide isolation 

experiences throughout the Shoreline portion of the Wilderness. It failed to disclose the 

extensive literature analyzing Wilderness solitude and expert opinion that questions the 

management approach applied in the FEIS. 

The meaning of solitude itself for different wilderness users entails a high degree of 

subjectivity. [PR 0278 at 188 (Roggenbuck & Watson) (suggesting various means of defining 

solitude and concluding that judgments about what constitutes solitude are largely value 

judgments)]. The Act itself “is notably silent in specifying the meaning of “solitude” or how it 

should be measured.” [PR 793_0902 at 43 (Freimund and Cole, comps. 2001)]. But it is 

clear, as shown in the Wilderness Character Monitoring Plan and the Wilderness Solitude 

Plan, that Shoreline II wilderness managers have reduced their subjective perception of 

solitude to a simple and unreasonable numerical standard – no encounters in 4 out of 5 days 

– without ever considering whether such a standard reflects the views of the majority of 

visitors. As Troy Hall explains, many visitors “may truly feel that they have experienced 

solitude, despite numerous encounters.” [Id.]. 

The FEIS arbitrarily failed to consider the broad range of visitor perspectives on 

solitude through a review of relevant research based on visitor interviews and surveys. 

Public comment on the solitude experience is critical - solitude value judgments can be made 

more defensible through public input from clientele groups who have knowledge and interest 

in the wilderness resource and the wilderness experience. [PR 793_0888 (McCool et al 

1986)]. Such clientele groups might include wilderness area visitors, wilderness interest 

groups, wilderness outfitters and guides, and research scientists.” [PR 0278 at 188 

(Roggenbuck & Watson 1993)]. Thus far, primarily one wilderness-oriented advocacy group, 

the Sitka Conservation Society, provided input on the 2012 Wilderness Plan and monitoring 

protocols. Their views are unrepresentative of the general public and inconsistent with the 

findings from visitor surveys analyzed by wilderness research scientists. Implicit in the SCS 

protocol for example, is the suggestion that solitude is an experience of being entirely alone 

from sights, sounds and other humans – anywhere in or adjacent to the wilderness. The 

FEIS seems to adopt this interpretation so that the undefined term “solitude” is equivalent to 

an isolation experience that is likely desirable to a very small proportion of wilderness users. 

Conversely, other wilderness users perceive solitude as one desirable quality of the 

wilderness experience that is not always expected, particularly at access points. [PR 

793_0902 at 4 (Freimund and Cole, comps. 2001; PR 793_0135 at 12 (Dawson 

2004)(describing solitude as referring to small groups or solitary individuals who “encounter 

relatively few other groups of visitors along trails (e.g. away from access points) ....”)]. Cole 

and Hall’s 2006 study of visitor views found that the majority of wilderness visitors did not 

support managing an entire wilderness for solitude – it found that visitor “[s]upport was 

highest (44%) for managing a few trails for solitude. Another 34% preferred managing most 

trails for solitude. Support for not restricting use anywhere (17%) was higher than support 

for managing for solitude everywhere (5%). [PR 793_0129 at 29 (Cole & Hall 2008)]. One 

study found that site impacts were significantly more important than encounters with other 

humans in terms of the quality of the wilderness experience: “... perhaps most importantly, 

this study suggests that some of the wilderness conditions that most influence perceptions of 

wilderness quality are little related to amount of wilderness use.” [PR 793_0278 (Roggenbuck 

& Watson 1993); see also PR 793_0902 at 44 (Freimund and Cole, comps. 2001) (explaining 

that “wilderness visitors may have several motives or desired experiences, and solitude may 

not be the most significant component”)]. 

For example, one study identified “conflicting explanations of solitude within the existing 

wilderness literature” and argued that “the typical social-spatial (encounter within time and 

space) operationalization of solitude is an overly simplistic view of the concept.” [PR 
89

793_0902 at 6 (Freimund and Cole, comps. 2001)]. But the FEIS never considered that 

many visitors – such as the numerous Boat Company clients who submitted comments on 

the DEIS – have found an acceptable level of solitude during their experience – even if they 

did not achieve the complete isolation experience that the Shoreline II DEIS implicitly uses to 

define solitude. In other words, the analysis exaggerated the importance of encounters as it 

pertains to the quality of the wilderness experience, particularly for the majority of wilderness 

visitors. It failed to consider more serious concerns, such as the amount of trash left by 

unguided recreationists that impair the wilderness experience.30 

3. Conclusion and suggested resolution 

 In sum, the FEIS uses a subjective interpretation of “solitude” that is more akin to an 

isolation experience. It arbitrarily fails to consider whether existing levels of solitude are 

acceptable to the majority of Wilderness users, and fails to review or disclose the relevant 

studies analyzing subjective interpretations of solitude even though solitude drove the 

analysis and decision. It fails to account for the well-documented tension between solitude 

and primitive recreation opportunities, and in fact lumps the two together, violating NEPA 

requirement to provide professionally and scientifically credible analyses. The myopic focus 

on solitude caused agency staff to ignore materials in the record showing a more serious 

wilderness impairment – trash and marine debris. 

The Reviewing Officer should remand the FEIS and Draft ROD to the Responsible Official 

with instructions to prepare further NEPA analysis that provides a full and fair discussion 

about impacts to primitive and unconfined recreation, discloses the diversity of visitor 

perspectives of solitude and addresses displacement. 

 

30 The Boat Company notes here that the observations of its own staff, as well as reports from 

conservation organizations engaged in more important components of the wilderness stewardship 

program, such as cleaning up trash and debris, have identified areas where trash and other evidence 

of human activity – likely from the unguided public does degrade the Wilderness undeveloped, 

untrammeled and natural qualities. The myopic focus on solitude has caused the Forest to arbitrarily 

ignore these impacts, which are much more degrading to the Wilderness experience than periodic 

encounters. The Boat Company requests that further NEPA analysis consider whether debris and 

trash are more disturbing to visitors than encounters, and revisit the assessment of Wilderness 

qualities so that the public can review whether the Forest Service’s identification of issues is 

appropriate, and whether the agency should redirect its emphasis on perceived Wilderness quality 

degradation toward Wilderness beach cleanup. The Boat Company submitted three documents with 

its DEIS comments showing a trash problem: (1) Wilderness Stewardship Challenge activities 

identified huge amounts of marine debris in the West Chichagof/Yakobi Island Wilderness, [Boat 

Company DEIS Exh. 32], (2) Wilderness Stewardship Challenge participants collected 800 pounds of 

trash from the Pleasant Island Wilderness, [PR 793_0871 at 13 (SCS 2012)] and (3)SEACC collected 

enough trash from Murder Cove on Admiralty Island to fill a 24 foot barge, and had to leave the 

remaining trash due to the barge’s limited capacity. [Boat Company DEIS Exh. 34]. Much, if not all, 

of this trash is likely left by unguided visitors due to outfitter/guide compliance with Leave No Trace 

principles. The Forest Service has also documented a trash issue – both from unguided recreationists 

and marine debris. See PR 793_0336 at 8, 0337 at 1-2 (documenting the trash problem). 
90

VI. Miscellaneous Objection Points 

A. Objection Point 19: The draft ROD and FEIS are arbitrary because they rely on a visitor 

capacity analysis that overestimate impacts 

1. Statement Referencing Prior Written Comments and Content of Objection and 

Explaining How Decision and/or Analysis Specifically Violate Law or Regulation 

The Boat Company’s comments in response to the Forest Service’s November 2011 

questionnaire requested that you develop your carrying capacity analysis through full public 

participation. [See Haas. 2002 at 20 (“[a] visitor capacity decision is made... as part of a 

public planning process; and in some instances, may benefit from the thoroughness and 

legal sufficiency afforded by a NEPA-compliant planning process”)]. Carrying capacities are 

not physical science but rather involve subjective and at times competing social, aesthetic 

and personal preferences that merit full consideration before Shoreline II ranger districts 

transform carrying capacities into regulatory policy. Because carrying capacities inform 

outfitter/guide use allocations, it was critical for the Forest Service to ensure that the public 

would have an opportunity to review and critique those capacities prior to finalization of the 

capacity analysis. 

Like the Wilderness monitoring plans, the Carrying Capacity Analysis has been an 

“internal document” within the agency. The Boat Company’s DEIS comments reiterated that 

the Forest Service should prepare a revised carrying capacity analysis that includes more 

detailed consideration of site-specific features in order to better inform its conclusions. The 

DEIS included the visitor capacity analysis in an appendix, but the Forest Service refused to 

revisit the analysis through the NEPA process. [FEIS, Appx. E at E-26]. In other words, 

there is still an ongoing failure to allow for meaningful public participation. 

The Draft ROD and FEIS rely on the Visitor Capacity Analysis to inform the 

Responsible Official’s decisonmaking for Shoreline II. [DEIS, Appx. E at E-1]. The visitor 

capacities are arbitrary because the capacity analysis relies on unsupported assumptions 

that caused the Forest Service to underestimate visitor capacity, which in turn results in 

fewer service days available to the guided public. 

2. Statement of supporting reasons 

The carrying capacity analysis uses known recreation use sites (Capacity Locations) 

rather than all accessible acreage, and assumes that activities and impacts will continue to 

be concentrated in these areas. [DEIS, Appx. E at 8]. The approach first multiplied the 

number of Capacity Locations in each Use Area by the number of days in each season to 

calculate visitor capacity in groups. Then, in order to calculate visitor capacity in number of 

visitor service days, the capacity expressed as the number of groups was multiplied by 

average guided group size for each Use Area. 

TBC appealed the December 2004 Shoreline ROD in part because we felt there were 

fundamental flaws with the 2001 Shoreline-based Recreation Carrying Capacity Analysis 

which resulted in arbitrarily restrictive carrying capacities for areas such as the Pybus Bay 

Use Area. Other commercial operators shared this concern. The analysis concluded that the 

Pybus Bay Use Area should be deemed suitable for only 3 recreating groups on shore at one 

time even though the area encompasses 124 shoreline miles, 18,219 shoreline acres, with 8-

10 separate and discreet anchorages and about 15 reasonably accessible recreation sites. 

Other operators in other Use Areas have similarly identified seldom used islands within 

specific Use Areas that would provide opportunities, but were not considered because “the 

methodology for capping guided use ... is flawed.” [Pre-NEPA PR 0052]. In other words, the 

approach in the updated carrying capacity analysis, while identifying key, known Capacity 
91

Locations, overestimates the number of groups that may encounter each other within a given 

Use Area and thus underestimates an appropriate level of both guided and unguided public 

access. 

Also, the new capacity analysis relies in part on several flawed assumptions. For 

example, the service day calculations rely in part on the assumption that only one group can 

be accommodated per day at a Capacity Location, when, in fact, a location may be able to 

accommodate several groups in one day through, for example, sharing an area at different 

times to use a two hour hiking trail or because visitor groups take deliberate action to avoid 

encounters with other groups. The Boat Company’s onshore activities typically last for one 

and a half to three hours. [Exhs. 1 – 8]. Although the analysis acknowledges that this 

assumption is conservative, it concludes that “a balance is created by including both liberal 

and conservative assumptions in the visitor capacity calculations.” 

The Boat Company believes that more explanation is necessary to determine whether 

the two assumptions actually offset each other – a balance is created only if the “liberal 

assumption” truly offsets the “conservative assumption.” Otherwise, the use of the 

conservative assumption underestimates, perhaps to a significant degree, the number of 

groups that could be allowed to use each site without running afoul of the applicable 

standard. Indeed, the Recreation Resource Report recognized that the mobility of RSNT SCV 

operators enables groups to avoid each other and disperse geographically and avoid entering 

crowded bays or anchorages. [PR 793_1288 at 15]. But the report and capacity analysis rely 

on the assumption outfitter/guide groups reported on any given day were all there at the 

same time – even though the Forest Service realizes that the groups dispersed. [Id. at 16]. 

3. Conclusion and suggested resolution 

The visitor capacity analysis is arbitrary because it assumes all groups would 

encounter one another in one location on the same day, even though the record shows a 

much higher level of temporal and spatial dispersal. This is a significant error because it 

means capacity – and thus service day allocations – may be higher by a factor of three in 

some cases. The Forest Service never provided any meaningful opportunity for public 

comment on the Visitor Capacity Analysis, violating NEPA. 

 The Reviewing Officer should direct the Responsible Official to redo the capacity 

analysis and explicitly include the revised version in additional NEPA analysis so that the 

public has the opportunity to provide site-specific input. 

B. Objection Point 20: The Forest Service needs to supplement the NEPA analysis with an 

evaluation of the cumulative impacts of the State Forest Management Act

1. Statement referencing prior comments and explaining how decision and/or analysis 

violate law, regulation or policy 

On January 3, 2017, Alaska representative Don Young introduced HB 232, the “State 

National Forest Management Act of 2017.” [Exh. 11 at 1(§ 1(a)].31 The purpose of the 

legislation is “[t]o authorize states to select and acquire certain National Forest System lands 

to be managed and operated by the State for timber production and for other purposes under 

the laws of the state.” [Id.]. The legislation will authorize states to select portions of the 

National Forest System up to a total of 2 million acres per state. [Id. at 5 (§§ 3(b), (c)]. 

The legislation will also change the administration of special use permits: 

 

31 See also section 5(a) (“eligible portions of the NFS conveyed to a state under this Act shall be 

administred and managed primarily for timber production pursuant to the state forest practices law”). 
92

Beginning on the selection date and concurrent with the selection and 

conveyance of the National Forest System lands and property under this Act, 

the Secretary shall transfer all existing special use permits related to the 

acquired NFS lands and property to the state.32

The Boat Company submits that the Forest Service needs to consider pending federal 

legislation that would transfer significant portions of federal land on northeast Baranof and 

southeast Chichagof Island to the state of Alaska for timber sales in further NEPA analysis. 

The Boat Company did not reference the State Forest Management Act in prior comments as 

it Mr. Young had not yet introduced the bill. But the cumulative effects of this legislation 

significantly bear on recreational use of the Shoreline II project area. In particular, the 

state’s potential land selections include substantial portions of Use Areas 04-04B, 04-11B, 

04-12, and 04-13. [Exh. 12]. These are the Use Areas where the Selected Alternative would 

provide substantial service day increases relative to Shoreline I as part of the Selected 

Alternative’s approach of shifting RSNT SCV operators away from wilderness Use Areas and 

into Large Group Areas. [FEIS at 2-32-2-33]. The FEIS does not identify Young’s legislation 

in its list of projects or actions considered to have cumulative effects to recreation resource. 

[FEIS at 3-87 – 3-91]. 

NEPA requires that agencies consider cumulative actions in determining the scope of 

environmental impact statements, meaning actions “which when viewed with other proposed 

actions have cumulatively significant impacts and should therefore be discussed in the same 

impact statement.” [40 C.F.R. § 1508.25]. As explained by the Supreme Court, under NEPA, 

“proposals for ... actions that will have cumulative or synergistic environmental impact upon 

a region ... pending concurrently before an agency ... must be considered together. Only 

through comprehensive consideration of pending proposals can the agency evaluate different 

courses of action.” Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976). The Forest Service 

needs to prepare a supplemental EIS that analyzes how the State Forest Management Act 

would affect the spatial distribution of outfitter/guide activities. [40 C.F.R. 1502.9(b)]. 

2. Statement of supporting reasons 

NEPA’s analytical requirements do not wait until a formal land conveyance has 

actually occurred. In general, the 9th Circuit has explained that: 

[P]rojects need not be finalized before they are reasonably foreseeable. NEPA requires that an EIS 

engage in reasonable forecasting. Because speculation is implicit in NEPA, we must reject any attempt by 

agencies to shirt their responsibilities under NEPA by labeling any and all discussion of future environmental 

effects as a crystal ball inquiry. N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 

2011)(citations and internal quotation marks omitted). 

The CEQ has explained how agencies should analyze effects that are not known but 

are reasonably foreseeable using the specific example of disposal of federal lands – notably, 

in an example where, unlike here, the identity or plans of future landowners is unknown: 

... if there is uncertainty about the identity of future landowners or the nature of future land uses, then of 

course, the agency is not required to engage in speculation or contemplation about their future plans. But, 

in the ordinary course of business, people do make judgments based upon reasonably foreseeable 

occurrences. It will often be possible to consider the likely purchasers and the development trends in that 

area or similar areas in recent years; or the likelihood that the land will be used for an energy project, 

shopping center, subdivision, farm or factory. The agency has the responsibility to make an informed 

judgment, and to estimate future impacts on that basis, especially if trends are ascertainable or potential 

purchases have made themselves known. The agency cannot ignore these uncertain, but probable, effects 

 

32 Exh. 11 at (section 3(f)). 
93

of its decisions. [Council on Environmental Quality. 1981. Memorandum to Agencies: Forty most asked 

questions concerning CEQ’s National Environmental Policy Act Regulations. 46 Fed. Reg. 18026 (March 

23, 1981 (Question 18)]. 

It is clear that this guidance applies in the context of a pending land transfer, particularly 

when the state has identified a range of land selections and the authorizing legislation 

mandates the removal of prime forested recreation habitat from the selected lands. The need 

for a detailed cumulative effects analysis is even more compelling when “the potential for ... 

serious cumulative impacts is apparent.” [Te-Moak Tribe v. U.S. DOI, 608 F.3d 592, 605-606 

(9th Cir. 2010). 

3. Conclusion and suggested resolution 

Both the legislation and planned development of the conveyed lands are reasonably 

foreseeable within the meaning of NEPA. This potential change in landownership has 

significant ramification for the implementation of Shoreline II because the legislation would 

direct the state of Alaska to conduct logging operations in the very areas where Shoreline II 

seeks to provide the greatest amount of guided public access. The Reviewing Officer should 

remand the FEIS to the Forest Supervisor with instructions to update the cumulative effect 

analysis. [40 C.F.R. § 1502.9]. 

VII. Conclusion 

The Boat Company participated early and often in the NEPA process, providing agency 

staff with wilderness management literature, hiring a recreation consulting firm, and 

reviewing well-designed recreation NEPA analyses and monitoring plans such as the 

Ketchikan/Misty Fiords Ranger Districts 2012 plan and protocol – all in the hope that its 

work would help to improve the analysis as well as provide helpful suggestions about how to 

balance the interests of wilderness solitude seekers with the interests of other wilderness 

users. 

However, the Wilderness resource section failed to adequately analyze the implications 

of its myopic focus on solitude, the relationship between guided public use and solitude, or 

whether it was appropriate to manage for off-wilderness impacts instead of simply disclosing 

those impacts. This analysis fatally infected a range of alternatives that failed to adequately 

account for business stability and growth, or the needs and interests of the guided public. 

The FEIS arbitrarily dismissed these concerns by asserting that there are no new restrictions 

on guided public access by selective comparisons to actual use (which the agency already 

limits) and references to available service days in times and places that are irrelevant in light 

of the known spatial and temporal distribution of the largest sector – RSNT SCVs. 

For the reasons discussed in these comments, the Selected Alternative fails to meet 

the purpose and need because it does not adequately provide for visitor industry growth and 

stability in terms of guided public access to the high quality recreation experiences marketed 

by RSNT SCV operators in areas that are operationally feasible to access. The Boat Company 

thus submits that the Forest Service must redo the NEPA analysis and develop a range of 

alternatives that allows for increases in guided public access to Wilderness Use Areas, and 

recognize that the Forest Service can provide solitude opportunities within Wilderness based 

on actual in-wilderness encounter data and reasonable interpretations of the “outstanding 

opportunities” clause of the Wilderness Act. The Boat Company reiterates that its most 

important suggestion is that you direct the Responsible Official consider zoning for 

wilderness recreation opportunity classes. 
94

Thank you, 

_________________________________ 

Paul Olson