eje67. Nicely constructed argument, but it has one fatal flaw. The reg on its face requires and prohibits certain things, but unlike many other such regs, it does not authorize any discretionary action on the part of the FS, and certainly not a District Ranger or even a Forest Supervisor.
Are you saying that §261.11(d) would not authorize the forest service to install a vault toilet along a trail without an environmental assessment, forest order, etc.? What formalities other than the authorizing regulation itself would be required for the forest service to provide
any waste receptacle under §261.11(d) and what authority would require those additional formalities?
Again, and I made this point earlier, the forest service could not
require that you use a vault toilet, or any other receptacle provided, because you may still comply with §261.11(d) simply by carrying your waste out of the forest.
So the only question was whether the bucket was "a receptacle . . provided for that purpose". Th FS argued and the court agreed that it was not.
Well, it definitely wasn't the
only question. The other question was, was the waste removed from the site or area? Wasson could have complied with §261.11(d) by removing the waste from the site or area, or by depositing the waste in a provided receptable, but he did neither.
This is another point I made in my original post: you can argue that wag bags have not been lawfully provided as waste receptacles, and you can even win that argument, but unless you can answer "yes" to the
other question -- did you remove the waste from the site or area? -- your winning wag bag argument isn't going help you if you are cited, because you still haven't complied with the regulation.
So it is an unsupported leap to conclude that Wasson stands for any authority of anyone to act or authorize anything.
Although I don't agree with this, I'll concede this point for the sake of argument. If Inyo does not have authority under §261.11 to provide wag bags as waste receptacles, and no other receptacles have been provided or authorized, then what you're left with is the default rule: human waste must be removed from the area. If you do not remove your waste from the area, you may be prosecuted.
In fact, the dicta you mention about the cat-holes at the work site makes it pretty clear that the FS also approves burying of feces a proper method disposal.
So if one district ranger in one forest in Oregon approves cat holes for disposal of human waste by a single individual (in an informal agreement that none of us would ever have known about if Wasson had not appealed the citation), that means the Forest Service
generally approves cat holes for waste disposal in
every national forest? I don't think so. The only generally applicable policy, promulgated in accordance with the administrative procedures act including formal notice in the federal register and opportunity for public comment, and applicable to "any act or omission occurs in the National Forest System or on a National Forest System road or trail," is the Forest Service's own sanitation regulation, which expressly states that waste must be removed from the forest. That is the default national rule and policy.
(I should point out that your response assumes that the forest service has
some authority to provide or authorize certain waste receptacles, e.g., cat holes...if so, from where exactly would it derive that authority for cat holes, but would not have similar authority to approve other receptacles?)
The point on which we agree is that the forest service cannot
require wag bags, or any other receptacle for that matter, in light of the option of carrying out waste in some other manner.
So yes, the FS could take the position that burying it - the practice called for an approved everywhere else - is prohibited by 362.11(d), but that would require them to enforce it that way everywhere
Can you locate where exactly the practice of burying human waste has been "called for and approved everywhere else"? Are you saying there are statutes, forest orders, regulations, etc., calling for and approving cat holes? Or is there some other procedure by which the practice has been called for and approved everywhere else?
I think your last point was similar to the one I asked SteveC to flesh out. I guess what I'm trying to determine whether there is some legal theory or specific authority that would preclude a national forest from enforcing one waste disposal practice in one part of the forest but not in another. Under what authority specifically would the forest be required to enforce the same policy/practice everywhere in its jurisdiction? Could there not be distinctions made between areas within the same forest based on usage, environmental conditions, etc.?
