OK, to begin at the beginning:
"
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.? "Yes. 261.11 does not authorize anything, it only prohibits certain acts. Now, references to things like "receptacle provided" may imply or even presume that such authority exists somewhere, but 261.11 certainly does not provide it it.
" 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?"Well, to take Garry Oye's mission from hell as an example, NEPA requires full NEPA compliance for something like removing and replacing composting toilets at Outpost and Trail Camp, or replacement with Wag Bags. And since that was a full-blown NEPA review, it could only be concluded with a Forest Order.
"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."Mmm, not necessarily. 261.11 only applies to sewage, and as Steve pointed out above, simple human waste is not sewage. Furthermore, if 261.11 applied to human waste per se, then the FS would have to require packing it out everywhere, which it certainly does not. So there is plenty of custom and usage to establish that your individual number 2 is not "sewage" within the meaning of 261.11
"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 receptacle, but he did neither."Well, yes actually it was. It was undisputed that Wasson did not remove the waste. He claimed he complied by depositing in the bucket, the FS said he did not. So the only issue was indeed whether the bucket was a proper receptacle.
"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."Not so. You haven't established an obligation to remove the waste until you establish that it is sewage, and as already noted, individual number 2s are not treated as sewage under 261.11 anywhere. Even in Wasson, the lower court record shows that the FS approval included work site dumps in catholes as perfectly acceptable, not a violation. That and the universal LNT practice of burying it are pretty compelling evidence - under the principle of custom and usage - that this is not sewage under 261.11
Quote:
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."You have not said why you do not agree with this. Where in either 261.11 or Wasson do you find anything to the effect that 261.11 authorizes the FS to do anything? I believe you are inferring that on the basis of the FS letter approving Wasson's letter of intent. All they said was, yeah, ok if you do that, you are not in violation of anything. And that goes to your second point as well. That OK including burying human waste in cat-holes on the work-site. If that waste is sewage, then burying it would be a flat out violation of 261.11, and whoever wrote Wasson his approval letter could not have approved it. So again, custom and usage, as well as the distinary definition, takes individual human waste deposits out of the meaning of "sewage". There simply is no "default rule" that "human waste" must be removed.
"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."Again, that is just not correct. It assumes, once again that "sewage" in 261.11 means all human waste, and there is no basis for that at all.
"(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?)"Again, that is not how it works. There is not authority required for cat-holes, only an opinion that using cat-holes for solid waste does not violate 261.11. No authority is involved, only the question of does it or does it not violate anything in 261.11. And the practice is so widespread, that if there were anything like a default prohibition against it, I am pretty sure we would have heard about it by now.
You have mentioned "authority" so many times, that I am beginning to perceive a fundamental misunderstanding in your approach. It is a foundational principle of Anglo-American jurisprudence that a thing is permitted unless it is expressly forbidden. I don't see anything in 261.11 or anywhere else that forbids burying of human waste in the back country, and a I see a lot of LNT practice guides, on FS websites, that encourage it. I have never heard of anyone being busted for burying it, or of anyone putting in an application for doing so.
"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?"Are you kidding? Look at any of the four JMT jurisdictions material on human waste in the backcountry, usually attached to your permit. They all echo what Yos says "Human waste must be buried at least 6" deep and 200 feet from trails, camps and all water sources".
Inyo says "Soap and Human Waste
Fish and soapy water do not mix. Please wash your dishes on shore in a pot of water and then dump the water on the ground far from any lake or stream. You can take baths without polluting as well.
Bury human waste with the heel of your boot, a shovel, or a trowel. Dig a hole five of six inches into the humus layer at least 100 feet from the water. Afterwards, cover the hole and microorganisms will decompose the waste.
If you are in a large group, dig a long but shallow latrine. Remember to fill it in before you leave. " That's at
Inyo's site. That and dozens more like it (can I google that for your?) establish the custom and usage, and nothing I have seen anywhere, including 261.11 and
Wasson contradicts it.
"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.?"No there is plenty of authority for a NF to exactly what most people think Inyo has done in Whitney. In fact, Whitney began to exercise that authority, but they did not follow through, so they never completed the EA or passed a rule.
And yes, distinctions can be made, by rule, order etc, but they have not. That is the ultimate point: Inyo could have acted completely and legally, BUT IT HAS NOT.
