[cdt-l] Nez Perce Trail

Jim Wolf mail at cdtsociety.org
Fri Nov 17 15:25:52 CST 2006

Regarding the comments about the Nez Perce Trail -- which should never have
been opened to motorized vehicles:

The Forest Service is currently reviewing the status of this route. Excerpts
from comments submitted by the Continental Divide Trail Society are as


It must be understood, to begin with, that Trail #92 was constructed
specifically for purposes of the Continental Divide National Scenic Trail.
This was evident, for example, in two letters I received from the Forest
Service prior to construction. In the first, from Lloyd Laughery, Trail
Coordinator, dated April 9, 1993 (2350/1600-1), there were enclosed “maps
illustrating the proposed routes and dates for construction and
reconstruction of the CDNST.” (The enclosure depicted the new trail
alignment in two segments, planned to be constructed in 1995 and 1996,
respectively.) The second letter, from District Ranger Margaret C. Ewing,
dated January 7, 1994 (2350), stated that “the Baker Trail portion of the
Continental Divide Trail System is scheduled for funding and construction in
1995.” (The map enclosed with the letter showed the planned route from Nez
Perce Gulch up the switchbacks and across the patented strip.)

 Under the provisions of the National Trails System Act, 16 U.S.C. 1241 et
seq, there is no warrant whatsoever for motorized vehicles to travel on a
newly-constructed segment of the CDNST, such as Trail #92.  The general
rule, as stated in Section 7(c) of the Trails Act, is “the use of motorized
vehicles by the general public along any national scenic trail shall be
prohibited.”  For the Continental Divide National Scenic Trail, there are
two exceptions to this rule.—but neither of them is applicable to the
present situation.

· Section 5(a)(5) provides that “the use of motorized vehicles on roads
which will be designated segments of the Continental Divide National Scenic
Trail shall be permitted in accordance with regulations prescribed by the
appropriate Secretary.”  (emphasis added)  The Forest Service draws a
careful distinction between roads and trails, and there can be no doubt that
Trail #92, by its name, properties, and depiction on official maps, is a
“trail” and not a “road.” The exception of Section 5(a)(5) is therefore

· Section 7(c) itself provides that “other uses along the historic trails
and the Continental Divide National Scenic Trail, which will not
substantially interfere with the nature and purposes of the trail, and
which, at the time of designation, are allowed by administrative
regulations, including the use of motorized vehicles, shall be permitted by
the Secretary charged with administration of the trail…” (emphasis added)
In our view, the use of ATVs on an untrammeled section of trail through
backcountry does substantially interfere with the nature and purposes of the
trail.  However, what is even more important is that the use of motorized
vehicles was not allowed “at the time of designation,” for the simple reason
that the trail did not then exist.  (The time of designation is November 10,
1978, when Pub.L. 95-625 was approved. See, e.g., Section 5(f) of the Trails
Act, which refers to “the date of enactment of legislation designating … the
Continental Divide National Scenic Trail.”)

Classifying Trail #92 as nonmotorized is not only the legally required
action, but it also is dictated as an application of Forest Service policy.
The clearest statement of this policy is contained in a memorandum signed by
the Deputy Chief of the Forest Service, Robert C. Joslin, on July 3, 1997.
He wrote, in part, that “It is the intent of the Forest Service that the CDT
will be for non-motorized recreation.  As new trail segments of the CDT are
constructed to link existing non-motorized trail segments together, and to
reroute the CDT off of primitive roads or other routes where motorized
travel is allowed, motorized use should not be allowed nor considered.
Allowing motorized use on these newly constructed trail segments would
substantially interfere with the nature and purpose of the CDT.” (emphasis


While there has been no decision by the Forest Service, we anticipate that a
new nonmotorized trail will be constructed, south and west of the existing
one. This would connect with a projected new route that would track the
Continental Divide closely to Homestake Pass. This would be a satisfactory

As a general rule, the Forest Service currently is sensitive to the
motorized/nonmotorized issue. We are not satisfied with the unresolved
status of the new trail east of Gibbons Pass -- but for the most part we
seem to be on the right track.  We welcome observations or comments on
particular trail segments, bearing in mind the relevant statutory and policy
guidelines mentioned above.

Jim Wolf

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