Commercial Special Use Permits – Ultra Trail Race

 
Mountain Laurel on Bartram Trail, Photographer: Peter McIntosh

Background

On 9 April 2022, we learned of a plan for a commercial ultra running race event using trails inside national forest lands, including the Chattooga Wild & Scenic River Corridor, Ellicott Rock Wilderness Area, Overflow Wilderness Study Area and the Ellicott Rock Recommended Wilderness Study Area.  The event was being marketed online with race registrations selling for $300 apiece. It was already “sold out” with 141 registrants by the time we became aware of it, and was scheduled for April 23rd .  Further, the advertising said that this commercial ultra running race event was to occur annually, and would be bigger and better next year.

The race event was slated to use the Bartram Trail, Foothills Trail and the Chattooga River Trail, among others.  Its route would pass through the heart of the Overflow Wilderness Study Area, and sections of the Ellicott Rock Wilderness Area and Ellicott Rock Recommended Wilderness Study Area.  Also, a considerable portion of the route was located inside the designated Chattooga Wild & Scenic River corridor, including “wild” sections.  The event would last for 38 consecutive hours, during a spring weekend when the Chattooga corridor would already have considerable recreational use.

Immediately we contacted the Forest Service for information, and were extremely disappointed to discover that national forest managers had, for some time, been working behind the scenes on permitting this major event.  No public disclosure or “scoping” notice had been provided to citizens and other stakeholders.  In addition, the Forest Service had not yet issued a commercial special use permit for the ultra running race event.

Facts

  • “Scoping” (public notice) is legally required for all Forest Service proposed actions.  36 CFR 220.4(e).  Scoping should disclose plans and proposals, and provide opportunities for public comments about issues and concerns.  

It is unconscionable that Forest Service land managers would seek to permit a major commercial special use race event in the Chattooga Wild & Scenic River Corridor, Overflow Wilderness Study Area, Ellicott Rock Wilderness Area and Recommended Ellicott Wilderness Study Area, without legally required scoping disclosures and opportunities for public input about issues and concerns.  Everyone knows that there is passionate public support for protecting and preserving the outstandingly remarkable values of the National Wild & Scenic Chattooga River and Wild & Scenic River Corridor, and equally strong public support for protecting wilderness values.  We know to a certainty that the public in this instance would have offered a robust response about the prospect of permitting more commercial ventures and setting precedents that would erode the integrity of these special values.  The commercial race as originally proposal would require, at the very least, preparation of an Environmental Assessment, and it could not be approved at all as it was advertised. 

  • The event as originally proposed could not lawfully be approved because it would have intruded on the congressionally designated Ellicott Rock Wilderness Area.

The Wilderness Act of 1964 states clearly:  “Except as specifically provided for in this Act, … there shall be no commercial enterprise … within any wilderness area.”  Section 4(c).  The Act allows for commercial “services” only “to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.”  Section 4(d)(5) (emphasis added).  In other words, while commercial outfitters may be allowed in some cases as necessary to allow visitors to experience the wilderness area, commercial exploitation is flatly prohibited, even for seemingly minor kinds of exploitation, like foot races.  Thus, as Forest Service policy unequivocally explains: “Do not permit competitive events, including competition involving physical or mental endurance of a person or animal, foot races, canoe or boat races, competitive trail rides, survival exercises (including military), or other activities of this nature in wilderness.”  FSM 2323.13h (emphases added).  

  • The commercial race event as originally proposed could not lawfully be approved because it would have intruded on the congressionally designated Overflow Wilderness Study Area, and would have also intruded into the Recommended Ellicott Rock Wilderness Study Area, and be inconsistent with the purposes for which it is managed.

The race course would have passed through the heart of the Overflow Wilderness Study Area (WSA).  The Overflow WSA is subject to mandatory protection as follows: “the wilderness study areas [including Overflow] shall, until Congress determines otherwise, be administered by the Secretary so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.” P.L. 98-324 (1984).  In addition to impacts to solitude and character, the permitting of a commercial competitive event in the WSA would seriously undermine the potential for the area to be included in the National Wilderness Preservation System.  Creating a constituency for a nonconforming use (commercial events) is impermissible because the persons or businesses who are invested in that use have an economic incentive to oppose future wilderness designation.  The new Nantahala-Pisgah National Forest Plan recognizes that the ”social characteristics which make these areas suitable for Wilderness designation” should be “maintained or enhanced”—not degraded by the creation of forces to oppose future designation. RW-DC-01. Indeed, the new plan explicitly forbids “permits for commercial special uses, such as recreation events.” RW-S-06.  This use simply cannot be permitted. 

In addition, the race course would have passed through the Ellicott Rock Recommended Wilderness Study Area.  The Sumter National Forest Plan directs the Forest Service to affirmatively “manage this area to protect wilderness characteristics…and provide for existing uses where compatible with protecting wilderness character.”  “Encounters with other visitors are rare.”  Sumter Plan 3-6.  “Commercial and organized group size is limited to 12.”  Sumter Plan 3-7, Standard 1.B.-11.  A commercial race event is inconsistent and incompatible with the purposes for which these lands are being managed.  

  • The commercial race event as originally proposed could not be lawfully approved because it is inconsistent with the purposes for which the Wild & Scenic Chattooga River Corridor is managed. 

Under 36 CFR 251.54(e)(5), the Forest Service “shall reject any proposal, including a proposal for commercial group uses, if … [t]he proposed use would be inconsistent or incompatible with the purposes for which the lands are managed” (emphasis added).  To begin with, the Forest Service’s screening process should have identified that a section of the proposed race course is blatantly illegal, because the proposed route crosses into the Ellicott Rock Wilderness Area and the Overflow Wilderness Study Area, as explained above.  

When evaluating permitting commercial race events inside the Chattooga Wild & Scenic River Corridor, their interference and conflict with authorized existing uses is clear.  The Sumter Forest Plan states that congress designated wild river segments and their associated corridors as part of the National Wild & Scenic Rivers System, that are managed to protect and enhance the outstandingly remarkable values of the river.  Sumter LRMP, 3-14.  “Organized events (such as boat races) are not allowed on the river.” Sumter LRMP, 3-9.  “Canoeing, kayaking, fishing, outfitted use, hiking, backpacking, and wildlife viewing are all typical uses along some activities without seeing many other users except parts of this corridor.”  Sumter LRMP, 3-14 (emphasis added).  “These segments of the Chattooga River are the most primitive and remote.  Management of these segments is focused on protecting the outstandingly remarkable values of the river, and preserving the natural environment and natural processes from human influences.” (Sumter LRMP, 3-14).  Human encounters are infrequent, and “[m]ost users enjoy [river and trail use] without seeing many other users except at the occasional boat put-ins and trailheads.”  (Chattahoochee Forest Plan, 3-26.)  Indeed, users of these wild river corridor areas treasure the values of solitude and wildness, expect this experience to be preserved and enhanced under its management directives and not be subject to increasing commercial exploitation.  The proposed event—a commercial enterprise and an exploitation of wilderness values for the financial benefit of the race director—is incompatible with these management objectives. 

Precedential Impact and Cumulative Effects 

It was about a half a century ago that the U. S. Congress heard testimony concerning designating the Chattooga River as a Wild & Scenic River, where it was stated that the greatest threat to the Chattooga River was over-commercialization.  This led to a cap on the commercial outfitting and guiding businesses on the river.  We have learned a lot since then, and this statement holds true—now more than ever.  Forest Service managers must fully and openly vet, through the National Environmental Policy Act process, any proposal and decisions that could set a precedent for future additional commercial operations in the Wild & Scenic Chattooga River Corridor.  The precedential impact of promoting these kinds of commercial uses in these sensitive areas, and the cumulative impacts and effects of allowing similar activities in the future, preclude any finding that such approval would be insignificant.