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#46011 - 05/01/16 08:09 AM Re: Wag Bags [Re: eje67]
RichardK Offline


Registered: 11/06/09
Posts: 82
Loc: East Coast Florida
I always take care of business at the trailhead. I'm good for 24 hours. Problem solved.

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#46012 - 05/01/16 09:45 AM Re: Wag Bags [Re: eje67]
SierraNevada Offline


Registered: 09/05/11
Posts: 1100
Loc: NorCal
Interesting argument, eje67. I think it would be a tough sell to a judge that every backpacker is required by 36 CFR §261.11 to carry their human waste out of every National Forest, even their waste water (pee?). As I read it, the intent of the §261.11 Sanitation seems to be intended for RV holding tanks, developed toilets, and general litter prohibitions. But I'm not a lawyer and only a judge can ultimately define what is "reasonable" in any given case.

Lots of interesting issues might come up during a case like that. Such as, was it legal to remove (burn down) the toilets and implement a pack out system without completing the ongoing NEPA process that was in the process of evaluating those very alternatives? Seems like a judge might direct Inyo to go back and finish that NEPA process if they want to enforce wag bag use for this specific area. And then that would bring up the obvious impacts that we see on the trail.

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#46014 - 05/01/16 11:10 AM Re: Wag Bags [Re: SierraNevada]
eje67 Offline


Registered: 07/09/14
Posts: 68
Loc: Los Angeles County
Originally Posted By: SierraNevada
I think it would be a tough sell to a judge that every backpacker is required by 36 CFR §261.11 to carry their human waste out of every National Forest, even their waste water (pee?).


I could definitely see that being a sticking point for a judge. But...it's basically how the federal district judge in Oregon and the appellate panel of 9th Circuit judges interpreted §261.11(d) in US v. Wasson.

The prohibitions in §§261.3 through 261.23 are "general prohibitions" that apply throughout the national forest system: "The prohibitions in this part apply, except as otherwise provided, when: (1) An act or omission occurs in the National Forest System or on a National Forest System road or trail." 36 CFR §261.1. There's nothing in §261.11(d) (or in any of the docs in US v. Wasson) suggesting it would be limited to RV holding tanks, developed toilets, etc.

The challenge was to i.d. a regulation requiring the packing out of human waste generally from the Whitney Zone, and §261.11(d) was applied in exactly the same way to an individual in another national forest. Analytically the elements of the prohibition are simple: was human waste removed from the site or area? If not, was the waste deposited in a receptacle provided for that purpose? If the answer to both questions is no, §261.11(c) can -- and actually did -- support a citation/prosecution.

There is no reason analytically why someone doing the same thing in another national forest (failing to remove human waste or deposit waste into a provided receptacle) could not be similarly prosecuted. If someone in the Whitney Zone were cited under §261.11(d) for failing to remove waste, an argument that wag bags are not lawfully provided waste receptacles would not be a defense. The wag bag history might be interesting but when all is said and done you have still violated §261.11(d) by failing to remove waste. At least that's what US v. Wasson strongly suggests could happen if someone were to be cited.

Quote:
Lots of interesting issues might come up during a case like that. Such as, was it legal to remove (burn down) the toilets and implement a pack out system without completing the ongoing NEPA process that was in the process of evaluating those very alternatives? Seems like a judge might direct Inyo to go back and finish that NEPA process if they want to enforce wag bag use for this specific area. And then that would bring up the obvious impacts that we see on the trail.


I don't know about the legality of burning down existing toilets. But I think it can be argued that in order to require the carrying out of human waste in general, a national park would not need to take any affirmative action at all, as that default policy is already built into the existing federal regulations. I'm not going to claim any familiarity with NEPA but my hypothesis would be that NEPA compliance would not be required if the forest service simply followed the default policy of removing waste, as there would be no proposed action or project to be evaluated.

But assuming NEPA must be followed in order to implement a wag bag policy, why wouldn't NEPA also be required for a policy authorizing disposal of waste in cat holes? Lots of examples of national forests informally authorizing waste disposal in cat holes (arguably exercising their authority under §261.11(d) to "provide" receptacles for that purpose) but is there a reason why a cat hole policy would get a free pass from NEPA but not wag bags? Would there not be environmental impacts that should or must be evaluated?

Just throwing out these questions for discussion's sake; again, I'm not familiar with NEPA. Also, not saying the interpretation of §261.11(d) being made here would necessarily be followed by every judge everywhere, only that there is a verifiable example of §261.11(d) being used to cite/prosecute an individual for failing to carry out waste from a national forest, and a 9th Circuit panel didn't have a problem with it.


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#46016 - 05/01/16 11:48 AM Re: Wag Bags [Re: eje67]
Steve C Offline


Registered: 09/22/09
Posts: 7233
Loc: Fresno, CA
eje67, I appreciate your finding the Wasson case. Reading the document, it turns out Wasson deposited his sewage in a bucket, and then abandoned it at the site! Wasson argued that the bucket qualified as a "receptacle... or place provided for such purposes". That is parallel to someone using a WAG bag in the Whitney Zone, and then leaving it behind.

Ironically, the text goes on to say, "For example, a person could comply with Wasson's reading of 36 C.F.R. §261.11(d) by depositing waste such as the human feces at issue in this case in anything from a used coffee cup to an empty soda can to a plastic garbage bag."

The Wasson case is quite interesting. But it does not address the situation that Inyo N.F., in all backcountry areas of its jurisdiction except the Whitney Zone, does not require the carrying out of human waste. How would the courts look at the situation of unequal enforcement of §261.11(d) by Inyo?

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#46020 - 05/01/16 12:12 PM Re: Wag Bags [Re: Steve C]
saltydog Offline


Registered: 02/03/11
Posts: 1549
Loc: Valley Ford CA!!!!
I think "don't leave unburied excrement" necessarily implies that burying excrement is proper.
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#46022 - 05/01/16 12:21 PM Re: Wag Bags [Re: saltydog]
Steve C Offline


Registered: 09/22/09
Posts: 7233
Loc: Fresno, CA
Originally Posted By: saltydog
I think "don't leave unburied excrement" necessarily implies that burying excrement is proper.


Salty, where is that text?

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#46025 - 05/01/16 12:40 PM Re: Wag Bags [Re: Steve C]
eje67 Offline


Registered: 07/09/14
Posts: 68
Loc: Los Angeles County
Originally Posted By: Steve C
Wasson argued that the bucket qualified as a "receptacle... or place provided for such purposes". That is parallel to someone using a WAG bag in the Whitney Zone, and then leaving it behind.


I think there's a stronger parallel to someone pooping in a cat hole in the Whitney Zone then leaving it behind; in both instances the waste would neither be removed from the area, nor deposited in a "receptacle provided."

(By the way not sure where you are reading that the bucket was "abandoned"...I think Wasson was occupying the campsite when he was cited, not 100% sure of that though.)

Quote:
Ironically, the text goes on to say, "For example, a person could comply with Wasson's reading of 36 C.F.R. §261.11(d) by depositing waste such as the human feces at issue in this case in anything from a used coffee cup to an empty soda can to a plastic garbage bag."


Not sure why this would be ironic, as the court was rejecting this reading of the regulation. Had the forest service provided a plastic bag for waste disposal (as it "provided" for disposal of waste in a Porta-Potty or cat holes via agreement with Wasson), then Wasson could have successfully argued that the bag was a provided receptacle. (I think you may be making a joke here that I am missing haha.)

Quote:
The Wasson case is quite interesting. But it does not address the situation that Inyo N.F., in all backcountry areas of its jurisdiction except the Whitney Zone, does not require the carrying out of human waste. How would the courts look at the situation of unequal enforcement of §261.11(d) by Inyo?


Can you flesh this out a little bit?


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#46027 - 05/01/16 01:26 PM Re: Wag Bags [Re: eje67]
Steve C Offline


Registered: 09/22/09
Posts: 7233
Loc: Fresno, CA
> By the way not sure where you are reading that the bucket was "abandoned"...I think Wasson was occupying the campsite when he was cited, not 100% sure of that though.

Well, I am not 100% sure either, but from my reading (last para. pg. 4), it sounds like he left the site, and FS moved in to clean up. But maybe they moved in and cleared it all out while he was still occupying. So you could be right.

SC wrote: > The Wasson case is quite interesting. But it does not address the situation that Inyo N.F., in all backcountry areas of its jurisdiction except the Whitney Zone, does not require the carrying out of human waste. How would the courts look at the situation of unequal enforcement of §261.11(d) by Inyo?

eje67 wrote: Can you flesh this out a little bit?

Not sure what more info you want, but I'll try. It goes along with the above:
SierraNevada wrote> I think it would be a tough sell to a judge that every backpacker is required by 36 CFR §261.11 to carry their human waste out of every National Forest, even their waste water (pee?).

eje67 wrote> I could definitely see that being a sticking point for a judge.

Adding to that:
Ever since the Forest Service has come into being, it has been standard accepted practice for anyone using the backcountry to dig catholes and bury their human waste. Now, with Inyo destroying their receptacles for human waste (torching the toilets), they are selectively (only in the Whitney Zone) requiring people to carry out their human waste. Yet it is still acceptable practice to bury human waste everywhere else in the Inyo backcountry.

With the commonly accepted practice of burying human waste, and its not being specifically described in §261.11, it leads me to say the phrases in §261.11 are all that apply:
(b) ...leaving refuse, debris, or litter in an exposed or unsanitary condition.
That implies burying human waste is acceptable.
(d) Failing to dispose of all ...sewage, waste water... by removal from the site or area, or by depositing it into receptacles or at places provided for such purposes.
Specifying "sewage, waste water" appears to mean septic tank effluent from recreational vehicles.

Given the commonly and historically accepted practice of burying human waste, I think it could be argued that nothing in §261.11 could be used to enforce use of WAG bags.

(I should add, that I fully agree with SierraNevada that everyone should do the right thing and use and pack out WAG bags. I am only trying to focus on what the law requires and what could be legally enforceable.)

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#46028 - 05/01/16 01:38 PM Re: Wag Bags [Re: eje67]
saltydog Offline


Registered: 02/03/11
Posts: 1549
Loc: Valley Ford CA!!!!
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. SO you have to look to Wasson to see if that's what the Court said, and it pretty clearly is not..

There was no discretionary action by the FS in Wasson. Wasson promised to use a porta potty, but used a bucket instead. 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. There was no hint or suggestion that the porta potty would be provided by the FS. The correspondence clearly intends that Wasson would provide it. The only action by the FS was approval of Wasson's initial plan to use cat-holes or the porta potty. But the court did not rule or rely even on on that approval, only on the fact that in light of Wasson's intent to use a port-a-potty, the bucket was not a receptacle "provided for the purpose".


At most, the Forest Service "approval" of the port-a-potty stand only for the the opinion of the FS that the port-a-potty would be a receptacle "provided for the purposes" and the Court's agreement that the bucket was not. The District Ranger's approval was not at issue, not even whether the approval was authorized or accurate. So it is an unsupported leap to conclude that Wasson stands for any authority of anyone to act or authorize anything.

This is very different from the FS authority, much less the District Ranger's exercise of power to authorize, much less require the Wag bag. 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 that one may comply with 261.11(d) by doing that as well as by removal OR disposal in a receptacle. SO, if you can bury it and not violate 261.11 then by definition the FS cannot require you to use a receptacle.

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
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#46029 - 05/01/16 01:48 PM Re: Wag Bags [Re: Steve C]
saltydog Offline


Registered: 02/03/11
Posts: 1549
Loc: Valley Ford CA!!!!
Originally Posted By: Steve C
Originally Posted By: saltydog
I think "don't leave unburied excrement" necessarily implies that burying excrement is proper.


Salty, where is that text?


In your earlier post on your LEO experience. I see that it is not a direct quote from 261.11, but it is the universal interpretation, apparently, that burying it ib the backcountry is not a violation.


Edited by saltydog (05/01/16 01:50 PM)
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#46030 - 05/01/16 01:57 PM Re: Wag Bags [Re: saltydog]
saltydog Offline


Registered: 02/03/11
Posts: 1549
Loc: Valley Ford CA!!!!
Steve makes another good point: that the definition of sewage is very specific, and always includes some sort of collection and conveyance. 261.11 does not say human waste, or solid waste, as the Whitney Zone WAG Bag material does. So tested by plain common or dictionary standards, which is the first principle in all legal interpretation, 261.11 does not even apply to human waste deposited in a hole in the back country, so the practice cannot be a violation. USFS may be quite aware of that, and it is the best explanation of why it approved Wasson's notice of intent and does not even mention packing out waste from Wilderness.
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#46031 - 05/01/16 02:07 PM Re: Wag Bags [Re: saltydog]
SierraNevada Offline


Registered: 09/05/11
Posts: 1100
Loc: NorCal
How refreshing to have a mature intelligent respectful debate.

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#46033 - 05/01/16 02:15 PM Re: Wag Bags [Re: SierraNevada]
saltydog Offline


Registered: 02/03/11
Posts: 1549
Loc: Valley Ford CA!!!!
Originally Posted By: SierraNevada
How refreshing to have a mature intelligent respectful debate.


Hey! Who you callin' "mature"?
_________________________
Wherever you go, there you are.
SPOTMe!

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#46035 - 05/01/16 02:57 PM Re: Wag Bags [Re: saltydog]
SierraNevada Offline


Registered: 09/05/11
Posts: 1100
Loc: NorCal
laugh

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#46036 - 05/01/16 03:07 PM Re: Wag Bags [Re: SierraNevada]
WanderingJim Offline


Registered: 02/09/15
Posts: 185
Loc: California
Originally Posted By: SierraNevada
How refreshing to have a mature intelligent respectful debate.

Don't you mean "How refreshing to have a maNure..."

smile

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#46037 - 05/01/16 03:09 PM Re: Wag Bags [Re: saltydog]
eje67 Offline


Registered: 07/09/14
Posts: 68
Loc: Los Angeles County
Originally Posted By: saltydog
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.

Quote:
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.

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.

Quote:
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.

Quote:
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.?


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#46038 - 05/01/16 03:22 PM Re: Wag Bags [Re: saltydog]
eje67 Offline


Registered: 07/09/14
Posts: 68
Loc: Los Angeles County
Originally Posted By: saltydog
Steve makes another good point: that the definition of sewage is very specific, and always includes some sort of collection and conveyance. 261.11 does not say human waste, or solid waste, as the Whitney Zone WAG Bag material does. So tested by plain common or dictionary standards, which is the first principle in all legal interpretation, 261.11 does not even apply to human waste deposited in a hole in the back country, so the practice cannot be a violation. USFS may be quite aware of that, and it is the best explanation of why it approved Wasson's notice of intent and does not even mention packing out waste from Wilderness.


It's good that you brought this up. The term "waste" is not defined in the regulations, and I would agree with you that "commonsense" definitions are typically the starting point in legal interpretation. Here is the dictionary definition of "waste":

Originally Posted By: merriam webster
b : refuse from places of human or animal habitation: as (1) : garbage, rubbish (2) : excrement —often used in plural (3) : sewage


The 9th circuit decision affirming the district court judgment that Wasson violated §261.11(d) by failing to properly dispose of waste is consistent with the dictionary definition:

Originally Posted By: 9th circuit
In the present case, Wasson stored waste (human feces) in a bucket.


Waste means feces, and feces is feces whether it's in a bucket or a cat hole.

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#46039 - 05/01/16 03:54 PM Re: Wag Bags [Re: Steve C]
eje67 Offline


Registered: 07/09/14
Posts: 68
Loc: Los Angeles County
Originally Posted By: Steve C

Specifying "sewage, waste water" appears to mean septic tank effluent from recreational vehicles.


Don't forget "waste...material." If the definition of "waste" does include "feces" -- unrelated and unconnected to septic tank effluent from RVs -- you would agree that §261.11(d) requires disposal of feces by removal from the area or by deposit into receptacles provided for such purposes, wouldn't you? The 9th circuit said precisely this. Wasson was pooping in a bucket, and the 9th circuit said he violated §261.11(d).

Quote:
Given the commonly and historically accepted practice of burying human waste, I think it could be argued that nothing in §261.11 could be used to enforce use of WAG bags.


If enforce means require, I agree. But if you don't use the wag bag, you would still need to carry your waste out under the default rule.

Circling back to a point I made in my original point, I think the forest service has broad authority to "provide" waste receptacles i.e. cat holes, whether via informal agreement with a single individual (Wasson), statements on the forest's website or visitor's guide (numerous examples online), possibly/probably even verbal ok's from a ranger (which I think would certainly get you off the hook if you were cited for violating §261.11(d)). None of these would require a forest order, but there is nothing stopping a forest from issuing a forest order about it either. But you have none of this in the Whitney Zone currently.

You could make a generic "it's a common and accepted practice" argument to make if ever cited for burying waste in the Whitney Zone, but that wouldn't necessarily nullify national policy (waste must be removed from the area) as promulgated in the forest service's own sanitation regulation. (That was in 1977, presumably the practice of burying waste was known to the forest service then; why would it require removal of waste if it was ok with burying waste? Nothing in the regulatory history about RVs.)

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#46043 - 05/01/16 07:06 PM Re: Wag Bags [Re: eje67]
saltydog Offline


Registered: 02/03/11
Posts: 1549
Loc: Valley Ford CA!!!!
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.
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#46051 - 05/01/16 10:17 PM Re: Wag Bags [Re: saltydog]
eje67 Offline


Registered: 07/09/14
Posts: 68
Loc: Los Angeles County
Insisting that "waste" in §261.11(d) does not include feces is a bit of a lost cause, isn't it?

The dictionary defines "waste" as excrement, and the dictionary defines "excrement" as "waste matter discharged from the body; especially: feces." (It was your suggestion to look at the dictionary, and the dictionary doesn't agree with you.) The district judge in Oregon and the panel of 9th circuit judges both interpreted "waste" in §261.11(d) as including feces: "In the present case, Wasson stored waste (human feces) in a bucket."

If "waste" did not include feces, why did Wasson lose the appeal? How did he violate §261.11(d) if the poop in the bucket did not meet the definition of "waste"?

To be a little more precise, the regulatory prohibition concerns the disposal of "garbage" which is defined as including among other things "sewage" or "waste." So you don't have to establish that waste is sewage for there to be an obligation to remove it. If you have waste, it's garbage, and it must be removed, just like any other kind of garbage.

If we cannot agree on this, we're not going to agree on anything else I'm afraid. Can we at least agree that if you have "waste," whatever that may be, there is an obligation to remove it under §261.11(d)?

Quote:
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.


If burying sewage violates §261.11, then logically and necessarily so does the burying any other type of garbage defined by §261.11(d) i.e. "paper, can, bottle, sewage, waste water or material, or rubbish." You agree that burying paper, can, bottle, or rubbish violates §261.11, don't you?

Your basic argument here (other than "feces isn't waste" which is a non-starter) is that even though burying sewage would be a "flat out violation of 261.11," the burying of waste would not violate §261.11(d) (never mind that 261.11 says in the very same sentence that sewage must be removed from the site or area and also that waste must be removed from the site or area) because there is a "custom and usage" of burying waste.

In other words, the forest service promulgated a regulation prohibiting the burying of paper, can, bottle, sewage, waste water or material, or rubbish, but the prohibition as it relates to waste is nugatory because of a custom and usage of burying waste. Can you articulate any coherent, logical reason why the forest service would bother promulgating this prohibition-that-is-not-a-prohibition in the first place?

You seem to be a "show me the authority" stickler, so here we have an example of the Forest Service acting under the authority expressly provided by the US Code going through all the required hoops to set national policy for national parks, via regulatory rulemaking including publication in the federal register, notice and public comment, etc., for the disposal of garbage in every national forest, and the policy it implements is that garbage -- including "waste" -- must be removed from the forest.

Yet you're saying that this national policy can simply be dismissed in favor of a "custom and usage" which unlike §261.11(d) has never been stated as national, generally applicable policy in any document that I can find, has not been implemented via the administrative procedures act, with notice, public comment, etc. The latter seems to be a-ok with you, but not national policy which was unquestionably authorized and properly implemented. Why is that?

Yes, there are plenty of documents on forest website (visitor's guides, LNT material, forest orders, etc.) that sanction cat holes in many forest areas -- I mentioned these before you did, because I think they are examples of the forest service "providing" receptacles (or "places") for the disposal of garbage. Angeles National Forest, San Bernardino Forest, Inyo National Forest (but not Whitney Zone) have posted these documents online and so have a bunch of other national forests. If you bury garbage in any of the forest areas where doing so is authorized (and do not deviate from the stated conditions and measurements, e.g., depth of hole, which are not uniformly stated by every forest that allows cat holes) you could not be successfully prosecuted for violating §261.11(d). But if you bury garbage where doing so is not authorized (a national forest doesn't have to do anything affirmatively to adopt that policy because it is already national policy by default), it would be another story. Even if Inyo is not lawfully "providing" wag bags as receptacles in the Whitney Zone, you still need to remove your garbage -- including feces.

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