Wag Bags

Posted by: RenoFrank

Wag Bags - 04/19/16 07:42 PM

At the risk of generating a discussion on possibly a delicate subject I ask for clarification.

On a JMT discussion website one poster suggested that a wag bag is not required in the Whitney Zone. What am I missing?
Posted by: saltydog

Re: Wag Bags - 04/19/16 08:47 PM

I thought you'd never ask. (I think that was me on the JMT FB page, possibly the Yahoo group.)

Aaaaanyway. You may notice, if you look carefully at what Inyo says aboutthe Wag Bag, in its various publications, both paper and online, that they never use the word "required", as they do with things like permits and bear canisters. They say things like"the only acceptable method". That is not accidental or technical,it is because deep down in their administrative heart of hearts, they know they can't say required. As much as they would like to give the inpression otherwise. It is because the Wag Bag program was started by the personal , uh, initiative of then District Ranger Garry Oye without any authority whatsoever to do so. The same basis on which he burned down the composting toilets at Outpost and Trail Camp. No rule was ever passed, no Forest Order was ever issued. Now, this is not what Inyo or the Interagency Visitor Center will tell you, but ask them to cite chapter and verse (which requires both a CFR section AND a Forest Order) as to what they would write on the ticket or complaint issued to you should you defy the Wag Bag deal, and they will not be able to do it.


As far as I know. I issue this challenge about once a year, and so far, no one has has been able to answer the question: what would the ranger write on the ticket for a Wag Bag violation?

SO you might ask, why doesn't the Forest Superintendent just issue the damn Forest Order and make it legal?

Waaaaaaaaaalllll now that is because at the time Ranger Garry, uh, exercised his leadership skills, the Superintendent had already found that the project was subject to the National Environmental Policy Act "NEPA", and it was under environmental review, with a "preferred action" that did NOT include burning the latrines and imposing the WAG BAg deal. To make matters worse, Ranger Garry changed the draft environmental assessment, without any authority, without any record, on his own personal, uh, initiative, in other words, completely illegally. So the way I see it the environmental review is still legally pending, including the wag bag deal, and so it would be embarrassing at best to try to unscrew up the situation and highly illegal at worst to issue the order on the present record.

So no Forest Order has ever issued requiring the beloved Wag Bag, and all the Inyo material stops just short of saying it is required, although the Rangers will tell you, and probably in good faith believe, that it is. This page Right Here

says "All Mt. Whitney visitors are expected to pack-out their solid human waste."

So here is may annual Wag Bag challenge: can anyone identify, chapter and verse, any actual rule regulation and or Forest Order requiring either the WAG Bag specifically or packing out of human waste generally from the Whitney Zone? I think this is the 5th year of the Challenge.


Posted by: Steve C

Re: Wag Bags - 04/19/16 09:31 PM

I see the American Alpine Club's video of Oye's presentation is no longer available. It was here:

http://www.americanalpineclub.org/podcasts/exitstrategies2010/podcast.xml

Fortunately the Torching Whitney Toilets video is still available.
Posted by: RenoFrank

Re: Wag Bags - 04/19/16 10:49 PM

Originally Posted By: saltydog
I thought you'd never ask. (I think that was me on the JMT FB page, possibly the Yahoo group.)



Yes, it was the Yahoo group. I read some of the regs in your link and came across an unrelated item - "Camping at Lone Pine Lake requires an overnight permit." I've got permits to enter at Kearsarge Pass and Trail Crest exit permits (finishing at the Portal). Does anyone know if I need additional permits if I want to camp at Lone Pine Lake on my way down?
Posted by: wagga

Re: Wag Bags - 04/20/16 01:10 AM

While we are giggling at bureaucratic clumsiness stupidity, let me tell you a true tale...

Back in the early '90s, My wife (now ex) was singing in a bar in Camarillo, CA, and I was her roadie, so I did spend some time in the Two Plus Two. Camarillo was a very early adopter to ban smoking in bars.

So one fine night, the local constabulary stormed into the bar and found half a dozen regulars ("barflies") propped up at the bar with "smoking gun" evidence in front of them.

As the city ordinance's ink was barely dry, the cop's official booking tickets did not yet have a check-box choice for "Smoking In A Bar".

So, occupying the moral high ground, the zealous Peelers checked off the "Jaywalking" offense box and made all the wretched miscreants sign the official "Notice To Appear".

Early afternoon the next day, the sober* barflies congregated, each on their usual bar stool, and discussed the predicament. A highly intelligent lady who cannot be named provided advice.

The upshot was that the barflies fronted up to the judge, and testified for each other that they were in a Bar, so they could not have possibly been out Jaywalking. Perfect alibis!

The judge (I'm sure with a private grin) dismissed all the matters.

Several years later, after I had moved to Fresno, I had occasion to be back in Cam Town. Went to the Two Plus Two and found each and every barfly on the usual bar stool, smoking away...

* Soon to be rectified.
Posted by: Steve C

Re: Wag Bags - 04/20/16 08:36 AM

Quote:
Does anyone know if I need additional permits if I want to camp at Lone Pine Lake on my way down?
Your entry permit is all you need to camp at Lone Pine Lake.


Talking about smoking guns...
I looked for the above mentioned WAG bag discussion on FB, and couldn't find it.
But I found this:
Originally Posted By: FB
Ryan Bieniek wrote: "Bob, I never had to use it, but my wife did. She found a nice hidden spot behind some boulders. And about a dozen WAG bags hiding too. Terrible."

Bob Shattuck wrote: "yeah, Whitney is pretty much pooed out--there are no secret "bet no one has ever climbed back into here" spots on the east side and if you're sitting around at Crabtree and bored as hell 'cause the views suck or something, go around and see how many rocks are flying the flag under 'em."
Rocks flying the flags to Garry Oye's legacy. mad

I talked to Seki ranger Rob at Crabtree two summers ago, and he said northbound hikers should bury their waste and not use a WAG bag, since there was no place to leave the bag until they exited many days north.
Posted by: RenoFrank

Re: Wag Bags - 04/20/16 03:25 PM

"Your entry permit is all you need to camp at Lone Pine Lake."



I hear I may want to descend all the way to the Portal after camping for 4 nights and summittimg Mt Whitney. If I do that it probably will be too late to hitch to LP for my car, go back to the portal for the rest of my group and drive back to Reno.

Can we stay at those walk-in campsites right at the Portal? What are my chances of catching a ride to LP early the next morning?
Posted by: saltydog

Re: Wag Bags - 04/20/16 04:16 PM

Yeah, and how about them Giants?

Notice how quickly the subject is changed from this particular OP? Even people who ask about it don't want to talk about it. No wonder Inyo hasn't corrected their blunder in all these years.

Doubt it will be too late to hitch. Where are you planning on camping last? Many people summit from Guitar and get back the Portal waaay before the Store closes. When I did it I was offered a ride before I had half finished my bacon cheeseburger

Posted by: RenoFrank

Re: Wag Bags - 04/20/16 06:21 PM

Originally Posted By: saltydog


Notice how quickly the subject is changed from this particular OP? Even people who ask about it don't want to talk about it.



I guess you're referring to me.

I asked...you answered. That was good enough for me.

It seems I hijacked my own thread.

Next year I'll let you initiate your annual commentary.
Posted by: saltydog

Re: Wag Bags - 04/20/16 06:42 PM

Not complainin. And hey I went along with it didn't I? That was some killer beta about getting to the Wp store and a hitch from wherever you camp even if you summit on your last day. Oh, that does require an Alpine start, even from trail Camp.
Posted by: Steve C

Re: Wag Bags - 04/21/16 12:31 PM

Originally Posted By: RenoFrank
"Your entry permit is all you need to camp at Lone Pine Lake."

I hear I may want to descend all the way to the Portal after camping for 4 nights and summittimg Mt Whitney. If I do that it probably will be too late to hitch to LP for my car, go back to the portal for the rest of my group and drive back to Reno.

Can we stay at those walk-in campsites right at the Portal? What are my chances of catching a ride to LP early the next morning?
Frank, I saw your question on fb, too. The answer is yes, of course you can camp in those walk-in sites. They are just that: available to anyone walking in and claiming one. If they are full (probably never happens, especially this summer with the parking restrictions), there are more below the main backpacker parking lot -- the Ravine camping area. Map here.

Oh yes, about those WAG bags...  wink   When you come off the trail in the evening, the first thing you will want to do is unload those WAG bags into the receptacles right by the restroom at the trailhead.
Posted by: RenoFrank

Re: Wag Bags - 04/21/16 01:37 PM

Originally Posted By: Steve C
The answer is yes, of course you can camp in those walk-in sites. They are just that: available to anyone walking in and claiming one. If they are full (probably never happens, especially this summer with the parking restrictions), there are more below the main backpacker parking lot -- the Ravine camping area.



I'm thinking if we hike that far down we may just camp at Lone Pine Lake. That is if we choose not to drive home that night. We've never camped or even walked over there. I have stayed at the Portal a couple of times. Plus we'd save the campsite fees.

Is it a nice place to camp? How about Outpost?
Posted by: saltydog

Re: Wag Bags - 04/21/16 04:19 PM

Originally Posted By: Steve C


Oh yes, about those WAG bags...  wink   When you come off the trail in the evening, the first thing you will want to do is unload those WAG bags into the receptacles right by the restroom at the trailhead.


IF you happen to be carrying one cool
Posted by: saltydog

Re: Wag Bags - 04/21/16 04:25 PM

Originally Posted By: saltydog
Originally Posted By: Steve C


Oh yes, about those WAG bags...  wink   When you come off the trail in the evening, the first thing you will want to do is unload those WAG bags into the receptacles right by the restroom at the trailhead.


IF you happen to be carrying one cool


BTW, if there are any Inyo rangers or admin staff following this, I would be more than happy to be proven wrong and shut up about this. If you stopped me on the trail without a WAG Bag, or more precisely, caught me leaving human waste without packing it out and wanted to ticket or arrest me, what provision would you cite?
Posted by: Steve C

Re: Wag Bags - 04/21/16 09:14 PM

I dunno, Salty. They might be hard-pressed to find a code for any violation. I believe there are rules about depositing it properly -- you know, cat hole, 6" deep, etc etc. Are those rules codified anywhere? What about the national parks people telling everyone to pack out their used TP?

I do know from personal experience -- if you insult a LEO, a citation can result. I showed up in court, he didn't. Dismissed. But it was definitely a hassle.
Posted by: saltydog

Re: Wag Bags - 04/22/16 01:09 PM

Originally Posted By: Steve C
I dunno, Salty. They might be hard-pressed to find a code for any violation. I believe there are rules about depositing it properly -- you know, cat hole, 6" deep, etc etc. Are those rules codified anywhere? What about the national parks people telling everyone to pack out their used TP?

I do know from personal experience -- if you insult a LEO, a citation can result. I showed up in court, he didn't. Dismissed. But it was definitely a hassle.


Left TP for example is litter. Covered:

"Code of Federal Regulations
Title 36 - Parks, Forests, and Public PropertyVolume: 2Date: 2006-07-01Original Date: 2006-07-01Title: Section 261.11 - Sanitation.Context:
Title 36 - Parks, Forests, and Public Property. CHAPTER II - FOREST SERVICE, DEPARTMENT OF AGRICULTURE. PART 261 - PROHIBITIONS. Subpart A - General Prohibitions.

§ 261.11
Sanitation.
The following are prohibited:
(a) Depositing in any toilet, toilet vault, or plumbing fixture any substance which could damage or interfere with the operation or maintenance of the fixture.
(b) Possessing or leaving refuse, debris, or litter in an exposed or unsanitary condition.
(c) Placing in or near a stream, lake, or other water any substance which does or may pollute a stream, lake, or other water.
(d) Failing to dispose of all garbage, including any paper, can, bottle, sewage, waste water or material, or rubbish either by removal from the site or area, or by depositing it into receptacles or at places provided for such purposes.
(e) Dumping of any refuse, debris, trash or litter brought as such from private property or from land occupied under permit, except, where a container, dump or similar facility has been provided and is identified as such, to receive trash generated from private lands or lands occupied under permit.
[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June 30, 1981]"

Leaving cache for 24 hours or more. Covered. CFR plus forest order or in Parks, Supervisor's Orders. Fire bans CFR authority and Forest Orders. Yep, they are all codified, except WAG Bag. Probably has CFR authority, but was never exercised through a Forest Order. Policies do not become enforceable rules just because Garry Oye orders the clerks to put certain language in Inyo. That LEO incident is a perfect example. I don't know what he wrote on your ticket, but I am pretty sure there is no rule against whatever you said, he knew it was a chicken ticket and didn't show so as to avoid embarrassment before the Magistrate.

In any event, in the 5 years I have been harping on this, no one - not Some Guy, no Inyo admin, no one has popped up to say uh, look at CFR such and such, Forest Order thus and so or anything even close. In fact, no one has even made the argument I would have expected first: "Look, it's on their web page". Nothing.
Posted by: SierraNevada

Re: Wag Bags - 04/30/16 09:21 AM

Salty seems to be correct and unchallenged on the legality and history of what happened. Please do the right thing for the environment despite how frustrated we are about what happened.
Posted by: Steve C

Re: Wag Bags - 04/30/16 03:43 PM

Salty, my LEO incident was before 1980, and was a CHP ticket.

SierraNevada, I will indeed to the right thing in the Whitney Zone. But I am still a bit puzzled with the § 261.11 words. a, b, c and e are pretty clear:
a: Don't plug the sewage system and don't throw garbage into a toilet.
b: Don't leave unburied excrement.
c: Keep it out and away from water.
e: hauling and dumping garbage anywhere but in provided containers and authorized dumps.

But (d) is curious:
(d) Failing to dispose of all garbage, including any paper, can, bottle, sewage, waste water or material, or rubbish either by removal from the site or area, or by depositing it into receptacles or at places provided for such purposes.

Everywhere but Whitney Zone, Yosemite and Seki, people have been digging (apparently) authorized cat holes, and burying their poop and TP. Nobody has changed the rules on that.

But where and how did TP become something Yosemite and Seki hikers are required to carry out? For that matter, part d could be interpreted to mean that carrying out poop is also required. Or does a properly dug cat hole fall under "places provided for such purposes"?
Posted by: SierraNevada

Re: Wag Bags - 04/30/16 09:30 PM

These CFRs seem to be "catch all" language prohibiting litter of every type imaginable on all forest property. "Waste water" could be interpreted to mean you can't even pee on the ground, so its a broad brush regulation. This is not the same as a Forest Order requiring a hiker to pack out poop in a specific area. A Forest Order requires compliance with NEPA, and we know they did not complete the environmental review process.

I've always packed my TP until the first good chance to burn it. If I don't get a chance to burn it, I pack it out, no big deal to me. I've seen a lot of it buried with good intentions, but dug up by animals.
Posted by: eje67

Re: Wag Bags - 05/01/16 12:22 AM

Originally Posted By: Steve C
For that matter, part d could be interpreted to mean that carrying out poop is also required. Or does a properly dug cat hole fall under "places provided for such purposes"?


Let me take a stab at making an argument that 36 CFR §261.11(d) provides authority for a district ranger to authorize receptacles for the deposit of human waste and, also, that one may be prosecuted for failing to dispose of human waste by depositing it into an authorized receptacle or by otherwise failing to remove the waste from the site or area. smile

In US v. Wasson an Oregon miner was prosecuted for storing feces in a bucket at his forest campsite. Both the district court and the Ninth Circuit Court of Appeals ruled that the miner violated §261.11(d) by failing to dispose of his waste either by removing it from the campsite, or by disposing of it in a receptacle provided for such purposes. The miner had notified the Forest Service via email that he would be disposing of campsite waste in a Porta-Potty, and worksite waste in cat holes; the district ranger responded via letter confirming/authorizing that arrangement. The miner however did not use a Porta-Potty for campsite waste but instead stored the waste in a bucket, which both the district and appellate courts decided was not a receptacle provided by the Forest Service for the purpose of waste disposal.

This particular case illustrates both that the Forest Service has authority under §261.11(d) to authorize receptacles for the disposal of human waste, and also that formal rule making and/or a forest order is not necessarily required to do that; here it was done via informal correspondence and agreement between the miner and the district ranger. The way the courts interpreted the regulation, the Forest Service would not have to "provide" the actual receptacles in the dictionary sense (no question that it could do that if it wanted to); the Forest Service could "provide" a receptacle for the purpose of waste disposal, e.g., Porta-Potty or cat hole, by agreeing to or authorizing the receptacle for that purpose.

I think this would answer both of the questions quoted at the top of this post. In the absence of a receptacle provided for the disposal of human waste, the waste must be "remov[ed] from the site or area."

Originally Posted By: 9th Circuit
The regulation thus requires a person to dispose of waste by either (1) removing it from “the site or area,” or (2) depositing it “into receptacles or at places provided for such purposes.”


And, the Forest Service is clearly authorized to "provide" receptacles for the purpose of disposal of waste, such as cat holes, Porta-Potties, etc., whether via agreement or by simply providing (in the standard dictionary sense) the receptacle in question.

It is reasonable to conclude from all this that the Forest Service has authority under §261.11(d) to provide/authorize wag bags as a receptacle for human waste in the Whitney Zone. There would also be (in my opinion) a pretty good argument that the Forest Service has express authority under §261.11(d) to do that and would not need a forest order. Would the Forest Service have to issue a forest order authorizing cat holes in wilderness areas as human waste receptacles, or to install a vault toilet along a trail?

But ultimately this is neither here nor there as it relates to the Whitney Zone, because even if a forest order is required to authorize human waste receptacles, and there is no such forest order designating wag bags -- or cat holes or any other receptacles for that matter -- then the default rule applies: human waste must be “removed from the area.” That is the only remaining lawful option. If you don’t remove your waste, you may be prosecuted under §261.11(d).

However the designation/provision of human waste receptacles must be made, the Forest Service could not legitimately say that wag bags are “required” because under §261.11(d) you are not prohibited from using some other method of removing your waste from the site or area. In other words, you could not be prosecuted for failing to use a wag bag (assuming it was a lawfully provided receptacle), but you could be prosecuted for failing to remove your human waste some other way.
Posted by: RichardK

Re: Wag Bags - 05/01/16 08:09 AM

I always take care of business at the trailhead. I'm good for 24 hours. Problem solved.
Posted by: SierraNevada

Re: Wag Bags - 05/01/16 09:45 AM

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.
Posted by: eje67

Re: Wag Bags - 05/01/16 11:10 AM

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.

Posted by: Steve C

Re: Wag Bags - 05/01/16 11:48 AM

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?
Posted by: saltydog

Re: Wag Bags - 05/01/16 12:12 PM

I think "don't leave unburied excrement" necessarily implies that burying excrement is proper.
Posted by: Steve C

Re: Wag Bags - 05/01/16 12:21 PM

Originally Posted By: saltydog
I think "don't leave unburied excrement" necessarily implies that burying excrement is proper.


Salty, where is that text?
Posted by: eje67

Re: Wag Bags - 05/01/16 12:40 PM

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?

Posted by: Steve C

Re: Wag Bags - 05/01/16 01:26 PM

> 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.)
Posted by: saltydog

Re: Wag Bags - 05/01/16 01:38 PM

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
Posted by: saltydog

Re: Wag Bags - 05/01/16 01:48 PM

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.
Posted by: saltydog

Re: Wag Bags - 05/01/16 01:57 PM

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.
Posted by: SierraNevada

Re: Wag Bags - 05/01/16 02:07 PM

How refreshing to have a mature intelligent respectful debate.
Posted by: saltydog

Re: Wag Bags - 05/01/16 02:15 PM

Originally Posted By: SierraNevada
How refreshing to have a mature intelligent respectful debate.


Hey! Who you callin' "mature"?
Posted by: SierraNevada

Re: Wag Bags - 05/01/16 02:57 PM

laugh
Posted by: WanderingJim

Re: Wag Bags - 05/01/16 03:07 PM

Originally Posted By: SierraNevada
How refreshing to have a mature intelligent respectful debate.

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

smile
Posted by: eje67

Re: Wag Bags - 05/01/16 03:09 PM

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.?

Posted by: eje67

Re: Wag Bags - 05/01/16 03:22 PM

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.
Posted by: eje67

Re: Wag Bags - 05/01/16 03:54 PM

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.)
Posted by: saltydog

Re: Wag Bags - 05/01/16 07:06 PM

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.
Posted by: eje67

Re: Wag Bags - 05/01/16 10:17 PM

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.
Posted by: Steve C

Re: Wag Bags - 05/01/16 11:16 PM

eje67, I can accept that Wasson's crap was waste. And so is feces once it is deposited into a WAG bag. In both of those situations, that waste must be removed from the forest. And I don't think saltydog would disagree either.

But as saltydog pointed out with Forest Service and National Park instructions above, human waste (aka feces) that is NOT collected in a container falls outside of the waste and sewage that must be removed. When it is deposited directly into a cathole and buried, where it can then decompose naturally, it is not the same thing as the waste you are talking about, or what the Wasson case was about.

If you disagree that poop deposited directly into a cathole and buried is waste that violates §261.11(d), then there is no point in debating any more. We just plain disagree. And I don't think a judge would agree with you.
Posted by: eje67

Re: Wag Bags - 05/02/16 12:01 AM

Originally Posted By: Steve C
But as saltydog pointed out with Forest Service and National Park instructions above, human waste (aka feces) that is NOT collected in a container falls outside of the waste and sewage that must be removed.


Wasson did not collect feces in a requisite receptacle...yet somehow a handful of judges all decided that he violated §261.11(d) because he did not remove the feces. They didn't seem to think that the feces "fell outside of the waste and sewage that must be removed" did they? I'm agreeing with them lol.

Quote:
When it is deposited directly into a cathole and buried, where it can then decompose naturally, it is not the same thing as the waste you are talking about, or what the Wasson case was about.


Does poop not also decompose when not buried in a cathole? I know you're not saying that you could leave your poop sitting on the main trail without violating §261.11(d), but that's what you're saying if your argument is that feces is not "waste" for purposes of the regulation if it is decomposing.

Paper decomposes too, so go ahead and bury it because it's no longer "garbage." You're not saying that, are you?

Poop decomposes in wag bags ("Our toilet kit is the ONLY solution that traps, encapsulates, deodorizes and breaks down waste with a NASA-developed gelling agent") so poop would no longer be "waste" once you squeeze it out into the bag, right?

Quote:
If you disagree that poop deposited directly into a cathole and buried is waste that violates §261.11(d), then there is no point in debating any more. We just plain disagree.


Poop deposited directly into a cathole and buried is waste that violates §261.11(d) only in forest areas where the burying of poop is not authorized. Otherwise, the poop must be carried out under the default, national Forest Service policy. There are plenty of areas that have "Forest Service and National Park instructions" authorizing cat holes, but Whitney Zone isn't one of them. You'd agree with that right?

You're all over the place analytically, and your decomposition argument, the "cat holes are authorized in some areas, so they must be authorized in all areas," and the "they're talking about RVs" arguments aren't persuading me, so yeah, I agree there's no point in debating further.
Posted by: wagga

Re: Wag Bags - 05/02/16 12:23 AM

The wag bag is not necessarily un-natural. The Sunbird (Nectarinia jugularis 261.11(d)) displays this at 4:50.

Posted by: saltydog

Re: Wag Bags - 05/02/16 05:36 AM

eje67

Go to law school.

Pay particular attention in Legal Reasoning and Analysis, Legislative Construction, Administrative Law, and Jurisprudence.

Or, write a letter to each of the Forest Superintendents where burying of human waste is recommended to hikers (you could start with Inyo) informing them that the practice violates 36 CFR 261.11.

Then get back to me.

Dog out.
Posted by: eje67

Re: Wag Bags - 05/02/16 07:11 AM

So, do you still say that "feces isn't waste"? lol. Misstating my position is a great response, congratulations you win! I didn't expect a credible comeback, and you did not disappoint.
Posted by: SierraNevada

Re: Wag Bags - 05/02/16 08:43 AM

This always seems to become a controversial topic at some point. eje67 found an interesting legal case to discuss, thank you.

How well that case applies to Whitney is a legitimate debate. Looking at the big picture, Mr. Wasson established "permanent residence" living at his mining claim for 12 months. He was also cited for unlawful residence on Forest Service lands, claiming that the FS has no right to remove his permanent residence because he made a mining claim. He was basically an irresponsible squatter. It wasn't just the bucket full of crap he left behind, the FS removed all his other belonging as well. He claimed his bucket was an alternative to the port-a-potty that he agreed to use.

A permanent mining residence where one agrees to install a port-a-potty is very different than trail hiking and backpacking. Yes, the definition of "waste" could be stretched to include "human waste," I'll give you that. "Sewage" must also be "conveyed" so that would not apply. So it comes down how "human waste" is described and regulated in common practice. A reality-based definition if you will.

As to a national policy requiring hikers and backpackers to remove their human waste, that is just not the case in standard practice. Some people might want such a policy, but there would be a huge backlash from the millions of hikers who have been told to bury their human waste for decades, with specific "leave no trace" directions.

Special rules in a National Forest require a regulation, typically a Forest Order, which must comply with NEPA. Many of them are so minor they fall under pre-established exemptions, and that exception is cited in the FO. Requiring removal of human waste creates unintended impacts due to non-compliance (bags left behind). Inyo has established a voluntary pack-out system that is creating environmental impacts without specific regulation and without completing the NEPA process that was started and aborted. If they want to force this into a legal proceeding by writing citations, that would get very interesting. Maybe it will eventually lead to a more effective solution than what we have now.

In the mean time, I again urge everyone to do the right thing for the environment. Don't use an ineffective cat hole, don't leave bags behind. If you want to protest, there are clever ways to do that without impacting everyone else. If you really care a lot about this, get involved in some way to make things better.

Edited for minor typos.
Posted by: eje67

Re: Wag Bags - 05/02/16 09:22 AM

The regulation that was used to cite Wasson is the default general prohibition that applies across the board to national forest users, whether they be miners, hikers, backpackers. The analytical framework is straightforward: (1) is it garbage? (2) was it removed from the site or area? (3) was it deposited in receptacle or place provided for the purpose of disposal of garbage? Depositing waste in a cat hole in an area where cat holes are allowed satisfies (3); depositing waste in a cat hole in an area where cat holes are not allowed does not. Cat holes are allowed/tolerated/permitted/recommended in a lot of places...but not all of them.
Posted by: Whitney Fan

Re: Wag Bags - 05/02/16 09:32 AM

Great news! Not confirmed yet, but the word is that SCOTUS has agreed to hear this case!