Archive | October, 2022

Bears Ears Monument Planning Assessment Comments

 

BLM Monticello Field Office
ATTN: Monument Planning
365 North Main
Monticello, UT 84535

RE: Bears Ears Monument Planning Assessment

Dear Planning Team:

The above Organizations are submitting these comments to provide our concerns around the lack of information on issues critical to the development of public comment and clearly state without this information provided, substantive public input is difficult to provide.  It is our position that the current Assessment document is often internally conflicting on standards to be applied and is often vague on basic information that will be highly relevant in these early stages of the Planning Process.  An example of the basic information would be the status of the Forest Plan Revision efforts currently underway on the Manti-LaSal NF as a result of the Proclamation and combined planning effort.  The lack of foundational information such as this is a major barrier to detailed public comment and analysis.

Any substantive review of our concerns around proposals is precluded without this information. While we might be able to support Alternative C of the Proposal simply due to the fact it provides a range of alternatives for the Proposal area rather than managing the entire area under a single ROS standard, even this Alternative has foundational issues and direct conflict with many legal requirements for planning, forcing us to object to even this Alternative.  The motorized community has strong opposition to Alternative D of the Proposal based on our experiences with planning efforts throughout the region as single intensity recreational opportunities simply never work and create a HUGE amount of conflict. The arbitrary nature of Alternative D is also a basis for opposition, as we are unable to understand how a single standard ROS was thought to be needed or appropriate.  This decision is simply never discussed in the Proposal.

This position has been developed as a result of our involvement in the development of hundreds of Resource Management Plans (“RMP”) throughout the Western United States. In addition to this experience, we have participated in a wide range of national rulemaking and management efforts.  Our desire is to provide high quality information for decision making early in the process in the hope of avoiding many of the pitfalls we have encountered in planning efforts throughout the region.  This information is also provided as the Proposal Planning area has provided exceptional recreational opportunities for the public for decades without a large amount of controversy.  These opportunities have drawn users from Colorado, Utah, Wyoming and numerous other states and Canadian provinces.

1. Who we are.

Prior to addressing the specific concerns of the Organizations regarding the Proposal, we believe a brief summary of each Organization is needed. The Off-Road Business Association (“ORBA”) is a national not-for-profit trade association of motorized off-road related businesses formed to promote and preserve off-road recreation in an environmentally responsible manner.  One Voice is a non-profit national association committed to promoting the rights of motorized enthusiasts and improving advocacy in keeping public and private lands open for responsible recreation through strong leadership, advocacy, and collaboration.  One Voice provides a unified voice for motorized recreation through a national platform that represents the diverse off-highway vehicle (OHV) community. United Four-Wheel Drive Association (“U4WD”) is an international organization whose mission is to protect, promote, and provide 4×4 opportunities world-wide. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization of approximately 2,500 members seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport. CORE is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region.  Collectively, ORBA, U4Wd, One Voice, TPA, CORE,  CSA and COHVCO will be referred to as “The Organizations” for purposes of these comments.

The Organizations are submitting these comments to supplement the input of local clubs and to assist the planners in developing a high-quality science-based management plan that continues to provide recreational opportunities in a high-quality manner.  The Organizations submit that these opportunities will only become more valuable with the passage of time given the growing population of communities in and around the Monument.  The Organizations are also very concerned with the ugly anti-recreation tone that is displayed in the Assessment and related documents. It has been our experience that recreation resources and cultural resources are not mutually exclusive but are often inseparable to achieving the goals of the Proclamation in the Planning area. Recognition of this relationship must be addressed early in the planning efforts.

2(a). Assessment of Bears Ears Monument concerns.

At the landscape level, the Assessment is problematic as often the Assessment lacks anything similar to a large-scale vision for the area, even in general terms, which would be critical information for the public in preparing substantive comments. The existence of problems such as this is concerning, as the Original Proclamation was issued by President Obama on December 28, 2016. [1] This planning area has been the subject of extensive press coverage as a result of the multiple Presidential Proclamations that have occurred and the numerous litigation efforts that have resulted as well. While there is much discussion around the small changes in these Proclamations, there is a large amount of consistency and alignment across all the Proclamations and this consistency in the Proclamations easily could have been the basis for vision and guidance in the assessments, and that has simply not been provided. Despite much of the area being designated for almost 5 years, there is no vision for the area provided in the Assessment.  Given the passage of a significant length of time since the initial Proclamation, we are concerned that the Assessment does not reflect the current status of planning for the area. Is the vision for the monument area an entirely new Resource management plan, a limited scale resource plan amendment, a resource plan with complete travel plan, a resource plan with site specific travel analysis?  This is just basic information that the public should be provided for any assessment of the management situation.

The lack of clarity in the Assessment on basic issues is highlighted further by the complete lack of information on how this effort aligns with the current revision of the Manti-LaSal NF Resource Plan.  Basic questions such as how previously submitted comments in the Forest Plan Revision will be handled in the management of the Monument, simply are never even raised as an issue. This is basic information that the assessment should be providing basic guidance on.

The Assessment fails to address basic information on issues that have plagued cross jurisdiction planning between the USFS and BLM for extended periods of time. Often basic conflicts on designations are difficult to align.  As an example of these types of programmatic problems would be failing to address how will designations similar to the ACEC concept be applied on USFS lands?  Is there even a desire to align these types of concepts?

The Assessment further fails to provide any insight into how boundary issues will be resolved between the Bears Ears Monument and National Recreation Areas that are adjacent to a large portion of the planning area.  This type of guidance will be critically necessary for any routes that may cross back and forth between the boundary line given the different management standards for each area.  Glen Canyon NRA was Congressionally designated in 1972 with the following purpose:

“to provide for the public outdoor recreation use and enjoyment of Lake Powell and lands adjacent thereto in the states of Arizona and Utah and to preserve the scenic, scientific, and historic features contributing to the public enjoyment of the area.” [2]

Natural Bridges Monument is also surrounded by the Bears Ears Monument, and a basic vision of how the competing visions and plans identified in each Proclamation will be aligned.  The following fundamental resources and values have been identified for Natural Bridges National Monument:

  • The three natural bridges—Sipapu, Kachina, and Owachomo. Natural Bridges National Monument is the one place where three natural bridges (stream carved features) are found in close proximity. Sipapu, Kachina, and Owachomo exemplify natural geologic and hydrologic processes that form and modify natural bridges over great spans of time
  • Cultural resources. The entire monument has been listed on the National Register of Historic Places as the Natural Bridges Archeological District, which includes 507 contributing resources. These resources contribute to the broader knowledge of the full range of prehistoric occupation on Cedar Mesa and include both simple lithic scatters as well as multi-room pueblos with stratified deposits.
  • The remote and undeveloped setting. Natural Bridges National Monument exists away from significant development, allowing for night skies, soundscapes, and air quality to be maintained in their natural condition.
  • Moist canyon habitats. Protected natural hydrologic processes, geomorphic processes, and biotic processes are necessary for maintaining the natural condition of canyon habitats and associated biotic assemblage. [3]

This alignment will be a critical issue for boundary areas, given the Glen Canyon NRA is Congressionally designated but the Bears Ears Monument is only created via a Presidential Proclamation. Protecting the values of the NRA must be weighted higher given the Congressional designation rather than a mere Presidential Proclamation, as the primacy of Congressional authority to manage land is identified in the Constitution [4]. No insight has been provided in this assessment on possible resolution of these conflicts. Once foundational legal questions such as this are resolved, additional questions such as alignment of existing monuments with the Bears Ears Monument must be addressed as well. Given that these issues have been present since the original proclamation was issued almost 5 years ago, the Organizations are frustrated that no information on issues such as this has been provided in the Assessment.

2b. Guidance to date has been inaccurate on the Biden Proclamation and must be avoided moving forward.

The value of these general statements of vision for the Proposal area cannot be overstated as this type of vision can avoid decisions that are in direct conflict with existing decisions, proclamations and law. It is unfortunate that we must start our comments in addressing a landscape level conflict of basic management and state that these types of conflicts are unnecessary and must be avoided moving forward. While the Organizations are aware that many recreational activities were addressed in the Proclamation as important but not protected by the Proclamation, the Organizations are also aware that analysis of this issue does not merely stop as a result. Often times while the particular recreational activity may not have been elevated for protection, the resources relied upon for the activity is addressed with a high degree of detail in the Proclamation. How this issue will be resolved is worthy of inclusion in the Assessment and public comment early in the NEPA process.

This type of basic conflict is neither abstract or remote but has already happened as exhibited by the direct conflict of existing guidance for the area and the Biden Proclamation on the issue of roads and trails. On December 16, 2021, BLM Utah State Director issued a guidance memo on Interim management of the Monument (hereinafter referred to as the “Guidance memo”) which provides far more general guidance on the management of the area than is provided in the Assessment. [5] This is problematic as the public should not have to search out documents providing basic vision in the manner that has been pursued by managers to date.  The value of a planning assessment is the fact that the Assessment serves as a one stop shop for resources in the planning effort. That has not been achieved here.

While more Guidance on basic visions for the Monument in provided in the Guidance memo, the type of conflict between Proclamations, statutes and case law the Organizations we are concerned about are immediately found to be present in the Guidance memo. As an example, the Guidance memo provides as follows:

“Proclamation 10285 makes clear that while the monument area is replete with diverse opportunities for recreation, including “rock climbing, hunting, hiking, backpacking, canyoneering, whitewater rafting, mountain biking, and horseback riding,” that support the travel and tourism sector of the local economy, those activities are not themselves objects of historic and scientific interest designated for protection. Therefore, the agency must ensure that any proposed recreation use or activity is evaluated for monument management plan or resource management plan conformance and consistency with the proclamation prior to being authorized.” [6]

Any analysis of how this decision was made is never discussed it the Guidance memo and is also completely avoided in the Assessment.  This avoidance occurs despite the fact that roads and trails, resources synonymous with those actions are discussed in great detail as cultural resources for protection in the Biden Proclamation.

As an example, Chacoan Roads, are specifically addressed 4 different times in the Proclamation and these routes have significant cultural value.  The cultural and historic value of these routes has been recognized by the National Parks Service [7] and Grand Canyon Trust [8] and clearly building understanding of the unique nature of these routes may require routes for access to the protected areas, as Chacoan Routes may travel some distances. The Hole in the Rock Trail is directly referenced in the Biden Proclamation 3 times, and 2 more times in previous Proclamations but no vision for this resource is provided in the Assessment despite the Hole in the Rock Trail spanning across the southern portion of the Monument area and being protected on the National Register of Historic Places since 1982.  Despite this recognition we are unable to find any even large-scale vision for these areas or resources.

Even if these resources are managed for their cultural and historic nature, and access to these specific routes and access routes is intended to be educational in nature, they have recreational characteristics as well.  Despite recognition of these resources almost a dozen times in the various proclamations, no guidance or analysis is provided in the Assessment. This is the type of broad landscape problem that an Assessment should be addressing.  While the Organizations do not contest the statement that many non-motorized recreational activities are not protected, the Organizations vigorously assert that roads and trails are a foundational characteristic to be protected in the Proclamation. We would encourage planners to broadly interpret the scope of the Proclamation to address not only the specific words provided but also the specific resources and values that are identified.

2(c) The Monument area has a host of other designations must be addressed many of which will have recreational value to be protected.

Again, the Organizations are concerned that the blanket summary of the Proclamation provided in the Guidance materials is simply inaccurate and overly focused on only a small portion of the Proclamation while ignoring other portions of the Proclamation.  The Assessment also appears to be trending in an overly focused vision for the Monument, while ignoring the previous protections that have been placed on the usage or resource in the area.  In this climate, the Organizations are unwilling to assume these resources are going to be managed in the historical manner. The Assessment must be addressing these competing goals and objectives for the area as this balance will be critical in the planning process. After reading the entire Assessment, we are unable to determine how many sites have been managed for other priorities that would not be impacted by the Proclamation.  This again is a significant problem as we are unable to understand how the scope of work was developed for the Assessment and how these competing values will be resolved.

This overly narrow scope of the Assessment and Guidance materials fails to address critical resources in the area that have been previously protected, such as the Hole in the Rock Trail.  While we are only addressing the Hole in the Rock Trail, this is an example of our concerns and should in no way diminish the value of the other locations that have not been addressed in these comments. The Hole in the Rock Trail has been on the National Register of Historic Places since 1982.[9] This is astonishing given that the Hole in the Rock Trail is mentioned in the Proclamation 3 times but the Assessment never references the fact this is also on the National Register. The Hole in the Rock trail was identified in 1982 and approved for listing on the National Register of Historic Places as follows:

“The Hole-in-the-Rock Trail between Escalante and Bluff is approximately 180 miles long and for the purposes of the National Register nomination/ the boundary lines are two hundred feet on either side of the trail designation on the attached USGS maps.

The application for listing on the National Register for the Hole in the Rock Trail almost mirrors portion of the Proclamation. The application for listing of the trail covers more than 145 pages and is supported by 31 different people or parties.  Hole in the Rock Trail is also specifically addressed in the Proclamation three different times as exemplified as follows:

“The Bears Ears region is also important to, and shows recent evidence of, non-Native migrants to the area. From the smoothed-over surfaces of the Hole-in-the-Rock Trail to the historic cattle-ranching cabins, and the convoluted series of passages and hideouts used by men like Butch Cassidy, the Sundance Kid, and other members of the Wild Bunch….” [10]

The Proclamation continues discussion of this resource in a manner that aligns with the National Register listing as follows:

“Nearby San Juan Hill was the last major obstacle for the Hole-in-the-Rock expedition and presents visible evidence of the weary expedition’s effort to cross Comb Ridge, including parts of a road, wagon ruts, and an inscription at the top of the ridge.” [11]

Proclamation continues its discussion of the Hole in the Rock Trail as follows:

“The area’s unforgiving topography, composed of expansive stretches of slickrock periodically interrupted by deep canyons, challenged Latter-day Saint settlers that traveled along the Hole-in-the-Rock Trail and left wheel ruts and other traces of pioneer life.” [12]

In addition to the recognition of the trail on the National Register of Historic Places, the National Park Service has a mile-by-mile summary of the Route and identifies it as follows:

Much of Hole-in-the-Rock Road is passable to high-clearance, two-wheel drive vehicles in dry weather. [13]

The NPS materials provides following pictures as an example of the Hole in the Rock trail:

Hole in the Rock Trail

Not only is the Hole in the Rock Trail on the National Register of Historic Places and mentioned in the Biden Proclamation repeatedly it is a global recreational destination for a wide range of uses. The following pictures represent the broad range of recreational opportunities that are provided as the public follows the route taken by pioneers.

Motorcycles, ATVs, OHVs in Hole int he Rock Trail

This recreational activity on the Trail provides the public with great appreciation for the struggles that the pioneers that created the trail faced as they traversed these areas with only a horse and buggy or on foot with limited resources. Given the repeated recognition of routes and resources that have already been protected for their values that align with the Proclamation, the Organizations are concerned that the current Assessment and previous guidance documents provide an overly grim picture for recreational activity on the Monument, and as a result have greatly limited the public ability to provide meaningful comment on the Proposal.  Again, we are concerned with the dismissal of the assessment of recreational concerns in the assessment without recognition of the relationship of recreation in educating the public regarding the historical activities that have occurred in the area. This lack of recognition results from the failure of managers to separate activities from the resources that are being protected.

2(d)(1) President Biden’s Executive Order 14008 must also be addressed.

Our concerns around the sufficiency of the Assessment span outside the application of Proclamations that are directly addressing the Proposal Area but are also addressing concepts and resources more generally.  The recent issuance of Executive Order # 14008 by President Biden on January 27, 2021 would be an example of a decision that is only partially summarized in most materials we are seeing submitted in public processes, as the “30 by 30” concept is memorialized in this Order.  It is our position that the 30 by 30 concept was long ago satisfied on the Monument planning area as almost everywhere in central and eastern Utah is either Congressionally designated Wilderness, Congressionally designated National Recreation Area, part of either the Bears Ears or Grand Staircase National monuments, Canyonlands National Park or some type of Roadless area designation. After reviewing the Proclamation 14008 and 30×30 concept more generally, we are unable to identify any requirement in these documents that Protection is only satisfied by Wilderness designations. Despite the lack of support for this standard, many are continuing to assert 30×30 is only satisfied with Wilderness designations.

In direct contrast to the summaries of EO 14008 we are seeing, this Order had provisions protecting lands generally but also had specific goals of improving access to public lands.  The only Alternative that complies with these specific recreational access goals of improving access is Alternative D. §214 of EO 14008 clearly mandates improved recreational access to public lands through management as follows:

“It is the policy of my Administration to put a new generation of Americans to work conserving our public lands and waters. The Federal Government must protect America’s natural treasures, increase reforestation, improve access to recreation, and increase resilience to wildfires and storms, while creating well-paying union jobs for more Americans, including more opportunities for women and people of color in occupations where they are underrepresented.”

The clear and concise mandate of the EO to improve recreational access to public lands is again repeated in §215 of the EO as follows:

“The initiative shall aim to conserve and restore public lands and waters, bolster community resilience, increase reforestation, increase carbon sequestration in the agricultural sector, protect biodiversity, improve access to recreation, and address the changing climate.”

217 of EO 14008 also clearly requires improvement of economic contributions from recreation on public lands as follows:

“Plugging leaks in oil and gas wells and reclaiming abandoned mine land can create well-paying union jobs in coal, oil, and gas communities while restoring natural assets, revitalizing recreation economies, and curbing methane emissions.”

The Organizations are aware significant concern raised around the 30 by 30 concept that was also memorialized in EO 14008.  While the EO does not define what “protected” means, the EO also provided clear and extensive guidance on other values to be balanced with.

2(d)(2). National Preservation Programs

The Organizations are also disappointed that the Proposal provides no guidance on how the numerous statutory requirements that are triggered by a National Monument Proclamation will be addressed. The Organizations are forced to make basic assumptions regarding the BLM management of the Area, such as that the monument will be managed as part of the National Landscape Conservation System within the BLM.  These are questions we should not be making assumptions about.

Not only are these overlapping designations not recognized, there are numerous provisions that are highly relevant to the Proclamation and subsequent management efforts. Under the DOI, the National Park Service has a Congressionally mandated and dedicated program, with funding streams, for the development of educational resources in the management of Historic Resources and sites. This program is outlined as follows:

(k) EDUCATIONAL PROGRAM AND SERVICE.—The Secretary shall develop an educational program and service for the purpose of making available to the public information pertaining to American historic and archeologic sites, buildings, and properties of national significance. Reasonable charges may be made for the dissemination of any such information. [14]

NPS also has statutory authority to programmatically agree to manage other lands under DOI management. Given the large number of Parks in and around the planning area, alignment of these resources and programs probably makes a lot of sense.  Basic questions such as this are again not addressed at all.

2(e).  The Proposal must be outlining the vision for management of other recreational resources.

The relationship of EO 14008, the Biden Proclamation and the numerous globally significant routes in the area is exemplified as follows. The project documents could impact a huge number of these routes used near Moab and Canyonlands including several Jeep Safari Routes. The following list is just a sample of the huge number of routes in the planning area such as: The Arch Canyon Trail, Beef Basin, Lockhart Basin, Chicken Corners, the Catacomb Caves and the Catacomb Caves Spur trail. Many of these routes have huge recreational value but are often the only way to access historical and cultural resources in the areas, and these values are protected under the Biden Proclamation and Executive Order 14008.

The Organizations are disappointed that again the provisions of the Proposal that are addressing the overlap of these competing values is again blank 5 years after the original designation of the area.[15] The Organizations would propose that this planning effort be directed towards creating a list of these routes that are of the most concern for closure and .  This list might include historical values of the trail; cultural values of the trail; educational materials that are available for the area; values that might be at risk and other criteria. This effort simply cannot be another inventory of Wilderness characteristics of the Area, as these are not mentioned in either EO. The Organizations would vigorously support this inventory of routes being a springboard to a management plan that was improving recreational activities and resources while protecting cultural values and wildlife habitat.  The Utah OHV grant program and educational resources that could result from such a spring board could be immense and should not be overlooked. Similar efforts have been hugely successful in protecting resources and improving recreational opportunities as exemplified by the planning that has been hugely successful on routes such as the Rubicon Trail in California. Rather than being an anomaly of management this type of management effort is the norm on most places listed on the National Register of Historic Places, most national monuments

3.  The Goals of the Congressionally mandated National Trails Strategy must be addressed.

The USFS has been developing the National Sustainable Trails Strategy for the last several years, [16] to comply with the mandate of the National Trails Stewardship Act of 2016.[17] While the BLM has not made any response to the 2016 Trail Stewardship Act, it remains applicable to BLM lands. The National Trails Strategy clearly identified goal of improving sustainable access and partnerships as a goal of this Congressionally mandated effort. This strategy also sought to strategically change how the USFS looks at partners and sustainability of routes and given the Proposal will guide the sustainable access and partnerships on the Forest for the foreseeable future.  The Organizations are commenting on this issue given the fact this effort is simply never mentioned in the Proposal, despite the Congressional mandate.  The National Strategy clearly states this as follows:

“Strategic Intent
The strategic intent of the strategy is to embrace and inspire a different way of thinking—and doing—to create sustainable change where grassroots initiative meets leader intent. The combined effort and momentum of many minds and hands will move the trails community, as a whole, toward shared solutions. This strategy builds on the many examples from across the country where the Forest Service, its partners, and the greater trails community have successfully embraced a community-driven and locally sustainable trail system model.”[18]

As we have noted throughout these comments the motorized community and local communities have worked hard to develop community driven locally sustainable trail systems on the monument for decades.

While the motorized community is far from perfect, the motorized community is the only community that brings significant resources to the Monument area to assist with management and maintenance of routes for the benefit of all users. In addition to the maintenance already provided, the Organizations are also aware that the Utah OHV Program has made significant strides in the development of their partner program. This program currently provides several million dollars for summer maintenance and this would be a program we would expect to significantly grow over the life of the RMP. This significant direct funding probably makes the motorized trail network the most sustainable on the Monument.  These contributions were recently recognized by the USFS planners as part of the Sustainable Trails effort as follows:

“The engagement and efforts of motorized groups have improved the condition of trails across National Forest System lands and we look forward to continued engagement with the motorized community as part of the Trail Challenge…. During phase one, I welcome collaboration to adequately track, monitor, and acknowledge accomplishments by the motorized community while identifying lessons learned to incorporate into future phases of the Trail Challenge.”[19]

While many interests are struggling mightily to provide a single maintenance crew, the motorized community has partnered to provide dozens of well-equipped and trained crews throughout the state for decades providing winter route maintenance in partnership with local communities. Utah OHV Program has made HUGE strides in the last several years to create a similar maintenance program for summer recreational opportunities.[20] We believe this is a model of collaboration moving forward and the Proposal should avoid any unintended negative impacts to this collaboration and that over the life of the Proposal this partnership will grow into a hugely strong and important funding partner for the Monument managers.

In addition to the direct funding of USFS management, the sustainability of the motorized community is significantly buttressed by the fact that every route available for usage by the motorized community has been subjected to 50 years of scrutiny under the travel management Executive Orders issued by President Nixon in 1972. While these 50 years have often been challenging for everyone, it has also produced the most analyzed and sustainable trail network for any usage. No other recreational activity on the Forest has been subjected to this level of scrutiny and analysis.

4. Educational resources simply are not even discussed.

The Organizations are deeply troubled that 5 years after the original Proclamation from President Obama designating the area, the Assessments discussion of educational opportunities around the historical and cultural basis for the designation of the area as a National Monument is entirely blank. This is troubling as the Utah OHV program has greatly expanded funding and resources for educational issues in the motorized community over the last several years.  Obviously aligning these two educational efforts would be a major step in a successful education effort for the entire area.  Too often the Monument is seen as a replacement for a Wilderness designation in the area and as a tool to keep the public out of the area.  Monuments are not Wilderness, and should never be managed as such and this could not be demonstrated better than the fact the Antiquities Act was passed more than 50 years before the Wilderness Act.

The Organizations vigorously assert that the failure of the public to understand the cultural and historic nature of the area has resulted in conflict around the management of the area for decades. Creating an education program that was addressing this lack of understanding would be a significant step towards management of the area. If an area has significance, it should be explained.  The Organizations believe the Chacoan Roads in the area provide a perfect example of why education is necessary, as most of the public simply has no idea what these features even are.

The Organizations vigorously assert that access to these resources is a CRITICAL component of any educational program. The Hole in the Rock Trail, discussed elsewhere in these comments, provides a perfect example of how access to the area can improve educational effectiveness as this route remains an exceptionally challenging route for people to traverse with modern vehicles and modern resources, such as cell phones, OHVs and coolers. The difficulty of the journey on the route is exemplified by the fact that people traversed this same route with horses, buggies and often on foot without the ability to haul food and water is driven home.  This is a FAR different and more effective educational experience than merely reading on a website that the route was difficult.

The Organizations are also aware that the hands-on nature of the experience can present a host of management issues, that can be resolved with quality educational materials.  Often if the public is not aware of the value of the resource, this can lead to impacts.  Once the public is educated about why the resource is valuable, they will avoid impacts to the resource. While managers frequently rely on programs like “Tread Lightly” to develop generalized materials for education, we are not sure this type of program is well suited to a Monument area as these materials do not reflect the unique historical nature of the areas. Given the unique nature of the area and resources, site specific materials simply will be more effective.

Given that 5 years has passed since the Original Proclamation, we would hope that a list of values or areas to be educated around would have been developed by this point. Based on the assessment, it appears that resource has not been developed and that is unfortunate as this type of site-specific resource will be a huge tool for the management of the monument, and educating the public about the historical significance of the monument area moving forward. Again, this type of material must be provided to allow for meaningful public comment to be provided.

5.  Huge portions of the Proposal are pre-decisional.

The Organizations are very concerned that many decisions of the Proposal are highly pre-decisional, as exhibited by the closures of Wilderness Characteristics Areas to all motorized before there has even been any discussion of where these areas could be located. Given the decision to make these areas entirely non-motorized appears to have been made already, this would entirely defeat the purpose of NEPA. The fact that we are not even able to identify possible WCA designations or boundaries in the Assessment, the determination about the use of motorized vehicles in these areas could not be more pre-decisional.

The Organizations are also very concerned that in the Manti-LaSal RMP revision, more than 85,000 acres of additional roadless areas were created between the finalization of the 2001 USFS roadless Rule and the revision of the RMP. The Organizations have participated in a huge number of regional and national planning efforts with the USFS on a wide range of issues, ranging to well before the inventory and issuance of the 2001 Roadless Rule.  As a result of this involvement on the 2001 Roadless Rule inventory process, we were surprised to see that the draft rule on the Manti/LaSal added more than 85,000 acres of Roadless Areas on the forest.  According to the inventory of the 2001 Roadless Rule, the Manti/LaSal was finally determined to have 601,159 acres of Roadless Areas.[21]  By comparison, the Draft RMP identifies the current Roadless Area inventory encompassing 686,780 acres, or an 85,621 acre or a 14% increase in Roadless Areas on the Manti/LaSal. [22]

While almost every Roadless Area had a significant change in designated acreage between the 2001 final Roadless Rule and the Draft RMP, changes were not consistent in size or application. The changes that have transpired between the 2001 Roadless Rule and Draft 2020 Revision are significant when certain Roadless Areas are reviewed such as the Dark/Woodenshoe Canyon Roadless area which changed from 14,551 acres in 2001 to 59,392 acres in the draft RMP or grew to more than 4 times its original size. While the Organizations are more than familiar with de minimis changes to boundary areas as a result of mapping technology improvements or ministerial errors, these levels of changes are not the result of issues such as this.  The Organizations are not immediately opposed to Roadless Areas designations, as we support the more dispersed recreational opportunities that are protected under the multiple use management requirements of the Roadless Rule. We welcome the fact trails can be built and maintained in these areas, even though roads in these areas can only be maintained.

The Organizations believe a brief summary of the standards that are applied by Courts reviewing agency NEPA analysis is relevant to this discussion as the Courts have consistently directly applied the NEPA regulations to Proposals, and immediately create problematic reviews for analysis that decides management standards before even boundaries have even been proposed.   Relevant court rulings have concluded:

“an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.”[23]

Other courts have summarized this standard as follows:

“[E]nsure that federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences, and [to] provide the public with information on the environmental impact of a proposed action and encourage public participation in the development of that information.” [24]

As previously addressed in these comments, public involvement simply has not been stimulated and a hard look has not been performed when no information is provided in planning documents.   The high levels of frustration expressed from the public in response to the release of the Proposal speaks volumes to the quality of information provided and the ability of the public to comment on the information. Rather than provide high quality information on the decision-making process, managers have failed to provide consistent information to the public regarding a general vision for the area. The Organizations simply cannot envision any resolution of this type of challenge in court to the agency plan that might be in favor of the agency.

Previously in these comments the Organizations addressed the complete lack of basic vision for the area provided in the assessment despite the original proclamation being issued more than 5 years ago.  This problem has created a specific violation of NEPA requirements as the public has not been provided detailed high-quality information about the Proposal to comment upon. Rather information critical to commenting on the Proposal has been very slow to be provided and highly generalized in nature.  Courts have specifically addressed the delayed release of information in this manner as follows:

“Of course, all of these Section 102 duties are qualified by the phrase “to the fullest extent possible.” We must stress as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not make NEPA’s procedural requirements somehow “discretionary.” Congress did not intend the Act to be such a paper tiger. Indeed, the requirement of environmental consideration “to the fullest extent possible” sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts.” [25]

There can be no argument that the hugely delayed release of supporting information for the Proposal would be the result of the agency foot-dragging that has previously been found to be a violation of NEPA requirements. For this reason alone, the Proposal should be returned to the agency for a full review of data for basic consistency and then released for public comment as the public is simply unable to understand what the proposal even is.

6(a). The Proclamation has had significant impacts on any assertion of areas being untrammeled by man.

The Organizations are intimately familiar with the explosion of discussions around Wilderness[26] and Wilderness management that occurs anytime large-scale planning is undertaken. The Organizations are aware that numerous statewide inventory efforts have been undertaken by the BLM in response to the Congressional requirements in the Wilderness Act. BLM lands in Utah are some of the most inventoried and reviewed lands in the Country for Wilderness, as most states have only been reviewed twice at the state level, while Utah has been reviewed three times.  The most recent occurred in the late 1990’s and addressed many of the same areas as were previously reviewed by the BLM in 1980. It is significant to note that while many of these areas have reviewed multiple times for Wilderness characteristics, only a small portion of these areas have been managed for these characteristics.

As an example, the 2008 Monticello FO RMP managed 88,871 acres as WCA.  Under Alternative E of the draft Plan up to 582,360 acres could have been managed as WCAs, which was summarized in the following chart:[27]

Table ES5 Non WSA Lands

Why areas were not designated as Wilderness Characteristics areas under Alternative E remains important today. Given the large levels of increase for all activities that have been a management concern for planners since the late 1990s, the Organizations vigorously assert that any assertion that visitation or usage of any portion of the planning area has reduced since the late 1990s. We are unable to identify any portion of the Biden Proclamation that would provide a basis for a large scale expansion of Wilderness areas.

We expect the current Proposal to be no different in terms of the Wilderness discussions than a  traditional RMP development, however this effort is also foundationally different from most other planning efforts in one critical manner when Wilderness is reviewed.  In this matter we have a Presidential Proclamation that clearly states the entire area has been trammeled by man for up to 13,000 years. The Proclamation addresses more than a dozen areas and the transportation network that connects these areas and the long and often troubling history of the area, and clearly and repeatedly states the boundary is the minimum area to protect these resources. Given the Presidential recognition of these qualities, the Organizations submit that any assertion of large-scale areas being suitable and available for protection as Wilderness is going to face a harder factual battle than ever before. This cannot be overlooked.

The Biden proclamation also specifically required these characteristics and history to be protected for future generations by managers. While every NEPA action requires economic analysis, the overlap of the Proclamation and any proposed Wilderness areas presents a situation where increased costs of management and resource protection must be addressed in the economic analysis. This is a unique situation.

6(b)(1).  Federal law mandates that there are no buffer areas for existing designations.

The Organizations are aware that many areas proposed for possible designation as Wilderness in various citizen Proposals are immediately adjacent to existing designations. This creates a situation where designation is being proposed in an effort to protect the Wilderness areas from outside usages.  With all too high a level of consistency, these citizens Proposals are moved forward without addressing the fact that the 1984 Utah Wilderness Act specifically prohibited this type of buffer of Wilderness Areas as follows:

“PROHIBITION ON BUFFER ZONES
SEC. 303. Congress does not intend that designation of wilderness areas in the State of Utah lead to the creation of protective perimeters or buffer zones around any wilderness area. The fact that non wilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.”[28]

The Organizations vigorously oppose any designations that are seeking this type of buffer moving forward in the Planning effort, and are per se illegal.  We are asking for this recognition as we do not seek any routes in Wilderness areas as this would be illegal and we ask for a similar barrier to illegal management standards be applied to all Proposals in the name of basic equality of parties in the effort.

6(b)(2) The Utah Wilderness Act provides a hard release of areas not designated as Wilderness.

The Organizations area also aware of the large areas of land that have been previously inventoried by land managers and found unsuitable for designation as Wilderness by Congress. An example of this would be provided in Alternative E of the RMP revision. The Organizations would hope that this planning effort does not end up being another discussion of why areas are not Wilderness, but rather is an effort that sets a vision and process for moving forward with the management and development of the planning area in a manner that conforms with the Proclamation. This decision not to designate these areas is also addressed with high levels of detail in the 1984 Utah Wilderness Act as follows:

“(3) areas in the State of Utah reviewed in such final environmental statement or referenced in subsection (d) and not designated wilderness upon enactment of this Act shall be managed for multiple use in accordance with land management plans pursuant to section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976: Provided, That such areas need not be managed for the purpose of protecting their suitability for wilderness designation prior to or during revision of the initial land management plan;”[29]

The Utah Wilderness Act further states this intent as follows:

“(b) The purposes of this Act are to… (2) insure that certain other national forest system lands in the State of Utah be available for non-wilderness multiple uses.”[30]

The Organizations are also all too familiar with the fact that areas that might be thought to possess Wilderness values are often managed by eliminating all usages that might be degrading those characteristics. As we have noted before this type of management is entirely pre-decisional, a violation of NEPA and is illegal under the Utah Wilderness Act and must be avoided.

6(c)(1) Wilderness recommendations should address the state efforts that have targeted these areas and designations.

In addition to the Legislative efforts regarding the planning area, the State of Utah has an exceptionally well-developed State Resource management plan along with a plan for every county in the state. [31] The State level resource plan clearly lays out the basic visions and goals for any Wilderness inventory in the state as follows:

“(j) the state’s support for any recommendations made under the statutory requirement to examine the wilderness option during the revision of land and resource management plans by the U.S. Forest Service will be withheld until it is clearly demonstrated that:

(i) the duly adopted transportation plans of the state and county or counties within the planning area are fully and completely incorporated into the baseline inventory of information from which plan provisions are derived;

(ii) valid state or local roads and rights-of-way are recognized and not impaired in any way by the recommendations;

(iii) the development of mineral resources by underground mining is not affected by the recommendations;

(iv) the need for additional administrative or public roads necessary for the full use of the various multiple-uses, including recreation, mineral exploration and development, forest health activities, and grazing operations is not unduly affected by the recommendations;

(v) analysis and full disclosure is made concerning the balance of multiple-use management in the proposed areas, and that the analysis compares the full benefit of multiple-use management to the recreational, forest health, and economic needs of the state and the counties to the benefits of the requirements of wilderness management; and

(vi) the conclusions of all studies related to the requirement to examine the wilderness option are submitted to the state for review and action by the Legislature and governor, and the results, in support of or in opposition to, are included in any planning documents or other proposals that are forwarded to the United States Congress;” [32]

Not only does the Utah State resource management plan lay out an express process for reviewing any possible Wilderness areas in an RMP, the State plan also provides general guidance for the inventory and management of these areas moving forward. These policies and guidelines are specifically outlined in the state report as follows:

– The State of Utah supports the continued management of Wilderness Areas as wilderness, in accordance with the Wilderness Act and when management provides for public enjoyment and active management under the Act.

– The State of Utah recognizes BLM Wilderness Study Areas recommended by the BLM during or before June, 1992, in accordance with FLPMA.

– The State of Utah opposes the recommendation of new Wilderness Study Areas subsequent to June, 1992.

– The State of Utah will actively participate in all public land management planning activities.

– The State of Utah opposes any legislation introduced in Congress to designate additional Wilderness Areas except for legislation introduced by a member of Utah’s congressional delegation.

– The State of Utah opposes any legislation introduced in Congress to designate additional Wilderness Areas unless such legislation is supported by the respective county commission or county council in the county impacted by the proposed legislation.

– The State of Utah will actively participate with federal partners in making wilderness management plans.

– The State of Utah opposes the management of non-wilderness federal lands as de facto wilderness, including “wildlands,” “lands with wilderness characteristics,” “wilderness inventory areas,” and other such administrative designations.

– The State of Utah opposes the review of additional U.S. Forest Service lands for wilderness, except for the reviews expressly provided for in the Utah Wilderness Act of 1984, §201(b).1

(a) secure for the people of Utah, present and future generations, as well as for visitors to Utah, the benefits of an enduring resource of wilderness on designated state-owned lands;” [33]

While the Organizations are aware that the final authority of management of federal lands lies with federal officials, the Organizations are also aware that these efforts by the State of Utah to participate in Wilderness Inventories in highly developed and highly detailed public input for the planning process.  This is in stark contrast to the limited engagement of many other western states on federal lands issues and warrants some level of discussion in the Wilderness inventory process.  The failure of the Assessment to address application of these provisions for areas is another reason the Organizations are vigorously opposed to every Alternative.

6d. Other designations are simply not addressed.

The Organizations are very concerned that a general vision for other designations, such as ACEC and similar designations simply are not discussed at all. Is there an expectation that these designations will be a major management tool?  If so, what does that look like? After 5 years, the Organizations have to believe these types of analysis has occurred at some level. The Assessment provides only a VERY generalized summary of existing ACEC areas but no vision moving forward.  Again, public input on issues like this simply cannot be obtained without some level of information being provided.

7.  Best management practices require flexibility.

The Organizations are aware that often the relationship of trails and other recreational infrastructure and wildlife habitats are a topic of concern, especially groups that fail to understand the planning and analysis that has gone into providing these opportunities already. We are aware that the USFS has provided new guidance materials on this question with the issuance of the new guide entitled:  “Sustaining Wildlife With Recreation on Public Lands: A Synthesis of Research Findings, Management Practices, and Research Needs” [34]  This guide highlights the need for detailed analysis at the site specific level, such as that provided by a travel management plan of possible issues and recommends against the application of overly broad or standardized analysis tools as often these tools can lead to poor quality results on the ground.

In addition to this new Guidance from the USFS, the Western Governors Association in partnership with Utah Department of Wildlife Resources provided clear understanding of the difference between impacts of high-speed arterial roads and trails. The Organizations are aware that often maintaining a complete understanding of the comparative scale of threats and challenges that wildlife is facing can be difficult in the planning process. Throughout these comments, high speed arterial roads have been identified as the major concern for wildlife. While this is clear, the relationship to trails is difficult to understand. In our efforts on wildlife management, we participated in Western Governors Association meetings on wildlife concerns and in 2014 the Western Governors Association published landmark research on the actual impacts of high-speed roads on a 12.25 mile stretch of US 89 in Kane County, Utah. [35] This research summarized the scope of the problem faced as follows:

“Along a stretch of highway in southern Utah, more than 100 mule deer were being lost every year to wildlife-vehicle collisions.”

After management of access points for deer on the road, the researchers published their conclusions as follows:

“It is estimated that a minimum of 102 accidents will be prevented each year through this collaborative effort.”

The Organizations are including this research to allow managers to understand the scale of impacts that high speed roads can have on deer. Any assertion that every mile of trail on the Monument could directly cause the death of 100 deer per year is simply comical. Clearly it is functionally impossible for any 12.25 mile of trails to cause this type of impact, which clearly identifies how much more significant this type of threat is to wildlife. While trails may be a threat to a specific animal at most, they simply are not even close to the level of impact that can result from high-speed arterial roads on a population of any animal.

The Organizations would vigorously support the development of management tools, such as those used in the Utah study, to actually protect wildlife, rather than taking largely token gestures to manage threats that have already been addressed on the planning area.

8. Conclusion.

The above Organizations are submitting these comments to identify our serious concerns around failures of analysis and conflict with well-established legal precedent in every Alternative of the Proposal.  While there are components of Alternative C that we can support, such as the range of alternatives, we are also very concerned regarding the horribly pre-decisional nature of many things that are proposed.  We must also voice our strong opposition to Alternative D of the Proposal based on our experiences with planning efforts throughout the region.

This information has been developed as a result of our involvement in the development of numerous Resource Management Plans (“RMP”) throughout the western United States. Our desire is to provide high quality information for decision making early in the process in the hope of avoiding many of the pitfalls we have encountered in planning efforts throughout the region.  This information is also provided in the Monument Area has provided exceptional recreational opportunities for the public for decades without a large amount of controversy.  These opportunities have drawn users from Colorado, Utah, Wyoming and numerous other states and Canadian provinces. We are submitting these comments in addition to the comments we have submitted previously on this Proposal.

If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com), Chad Hixon (719-221-8329 / chad@coloradotpa.org).

 

Scott Jones, Esq.
COHVCO, One Voice, U4WD
Authorized Representative

Fred Wiley
ORBA, President and CEO

Steve Egbert
United 4 Wheel Drive Association, Chair

Matthew Giltner
One Voice, Chairman

Chad Hixon
TPA, Executive Director

Marcus Trusty
CORE, President

 

 

 

[1] See, Executive Order 9558; No 3. Vol 82 Federal Register at pg. 1139 (2017).

[2] See,  16 U.S.C. 460dd

[3] A full copy of this document is available here. Foundation Document – Natural Bridges National Monument (U.S. National Park Service) (nps.gov)

[4] U.S. Constitution, Article IV, Section 3

[5] See, Dept of Interior, Bureau of Land Management; Director BLM; Guidance memo on Interim Management of Bears Ears National Monument; December 16, 2021 at pg. 5.

[6] See, Dept of Interior, Bureau of Land Management; Director BLM; Guidance memo on Interim Management of Bears Ears National Monument; December 16, 2021 at pg. 5.

[7]  A full copy of this guidance is available here: Chacoan Roads – Chaco Culture National Historical Park (U.S. National Park Service) (nps.gov)

[8] A full copy of this discussion is available here: Bears Ears Discovery: Chacoan Great Roads | Grand Canyon Trust

[9] A copy of this application is attached as Exhibit “1”.

[10] See, Executive Order 10285 (“Hereinafter referred to as the “Biden Proclamation”) at pg. 57323.

[11] See, Biden Proclamation at pg. 57328

[12] See, Biden Proclamation at pg. 57329

[13] Driving the Hole-in-the-Rock Road (West) – Glen Canyon National Recreation Area (U.S. National Park Service) (nps.gov)

[14] See, Public Law 113-287 §300101

[15] See, Proposal at 5-32.

[16] A complete copy of this strategy and more information on the process as a whole is available here: National Strategy for a Sustainable Trail System | US Forest Service (usda.gov)

[17] See, PUBLIC LAW 114–245—NOV. 28, 2016

[18] See, USDA Forest Service; National Sustainable Trails Strategy; December 2016 at pg. 4.

[19] A complete copy of this correspondence is attached as Exhibit “2”.

[20] More information on this program is available here: Off-Highway Vehicles | Utah State Parks

[21] See, USDA Forest Service; Final Roadless Rule 2001; January 12, 2001; Appendix – Roadless areas by Forest; pgs. 24& 25; Available here: Roadless – Final Rule Documents (usda.gov)

[22] See, USDA Forest Service; Draft Manti-La Sal National Forest Plan Revision; September 2020 at pgs. 99&100.

[23] See, Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 f3d 437 at pg. 442; 42 ERC 1594, 26 Envtl. L. Rep 21276

[24] See, Kunzman, 817 F. 2d at 492; see also Citizens for a Better Henderson, 768 F. 2d at 1056.

[25] See, Calvert Cliffs’ Coordinated Committee v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972)

[26] For purposes of this section, the Organizations are using the single term “Wilderness” to reflect Congressionally designated Wilderness, Wilderness Study areas, recommended Wilderness areas and Wilderness Characteristics areas.

[27] See, DOI, BLM; Monticello FO Final RMP Revision EIS; August 2008 at pg. ES-6.

[28] See, Public Law 98-428 §303

[29] See, Public Law 98-428 §101(a)(3)

[30] See, Public Law 98-428 §101(b)(2)

[31] Each of these documents is available for download here: Utah Public Lands Resource Management Planning

[32] See, State of Utah Resource Management Plan; January 2, 2018 at pg. 116 – full report available here Utah Public Lands Resource Management Planning

[33] See, State of Utah Resource Management Plan; January 2, 2018 at pg.230 – full report available here Utah Public Lands Resource Management Planning

[34] A complete copy of this report is available here: Sustaining Wildlife With Recreation on Public Lands: A Synthesis of Research Findings, Management Practices, and Research Needs (fs.fed.us)

[35] A copy of this research is attached as Exhibit “3”

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Bears Ears National Monument Comments from Ride with Respect

Note: This is a letter from Ride with Respect, a local OHV group that has been supported by the TPA since 2007. Shared with permission.


Bureau of Land Management
Monticello Field Office
365 North Main Street
Monticello, Utah 84535

20221031 Bears Ears Comments from RwR

Dear BENM RMP Project Manager:

We appreciate this opportunity to make scoping comments on the analysis of the management situation (AMS) for the Bears Ears National Monument (BENM) that has been expanded to 1.36 million acres of Bureau of Land Management (BLM) and U.S. Forest Service (USFS) land by Presidential Proclamation 10285.

1. Our organization has provided service work in the 1.36 million-acre area for decades.

Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands. Over 750 individuals have contributed money or volunteered time to the organization. RwR and its contributors have spent several-hundred hour maintaining trails designated for motorized use in the 1.36 million-acre planning area of BENM. Our education has promoted minimum-impact practices including the preservation of cultural sites given their nonrenewable nature and tremendous value to our nation, particularly to indigenous Americans.

2. Our organization has participated in agency planning in the 1.36 million-acre area for decades.

Prior to Presidential Proclamation 10285, RwR has spent several-hundred hours participating in all planning efforts since 2002, which includes the following:

  • Manti-La Sal National Forest Land Management Plan (LMP) revision process that started in 2004
  • Monticello Resource Management Plan (RMP) revision process that ended in 2008
  • Utah Public Lands Initiative legislative process from 2013 through 2016
  • BENM “listening session” administrative process on July 16th, 2016
  • BENM “review” administrative process throughout 2017
  • BENM MMP development from 2018 to 2020

Although some of these processes didn’t incorporate our input, they should be utilized, as most of the work is entirely suitable to current circumstances.

3. Generations of motorized recreationists have utilized roads and trails across the 1.36 million-acre planning area.

In addition to all of RwR’s planning participation and trail work, our contributors have enjoyed the fruits of their labor, particularly via motorized trails in the BENM planning area. People have been operating motorcycles and automobiles over unimproved terrain since the dawn of the Industrial Revolution. It developed as a sport at the turn of the century, with the first International Six Days Enduro held in 1913. Ever since, “off roaders” have been drawn to many parts of the 1.36 million-acre planning area. The general public may think of BENM as the Cedar Mesa area that’s renowned for its breadth and depth of cultural sites. However BENM extends north to within ten miles of RwR’s base in Moab, encompassing every viewpoint of Canyon Rims SMRA from Anticline Overlook to Hatch Point and the end of many primitive roads in between, which present no significant impact upon the Lockhart Basin area below.

BENM also includes Chicken Corners Easter Jeep Safari route, which serves tens of thousands of motorized recreationists every year, including many tour guests and vehicle renters. The economic impact of that single route is surely over a million dollars annually. Chicken Corners has had little maintenance, and would respond well to basic delineation of the route, which could be funded partly by its major SRP and tax revenue.

The Lockhart Basin primitive road and all of its western spurs reaching overlooks of Canyonlands National Park are world-class destinations for recreationists seeking a more remote and long outing such as dual-sport motorcyclists and 4WD overlanders. Lockhart provides terrain that is distinct from White Rim in Canyonlands, and it avoid NPS rules, some of which are ill-conceived (e.g. a group-size limit of three vehicles including motorcycles).

South of UT-211, several motorized singletrack and ATV trails climb the Abajo Mountains to offer southeast Utah residents and visitors a respite from the summer heat, and a glimpse of the autumn foliage. More so than most old roads, these trails provide a sense of challenge, flow, exercise, and intimacy with the natural surroundings. The trail system includes Indian Creek singletrack (USFS Trail 021), Shay Mountain singletrack (098), Shay Ridge ATV trail (162), Starvation Point ATV trail (430), Vega Creek singletrack (164), Maverick Point ATV trail (008), Horse Mountain ATV loop (427 to 444), North Long Point ATV loop (423 to 425), and Gooseberry ATV loop (445 to 010). All of these trails can be ridden in a single day by an expert motorcyclist, and they provide a unique way to experience the mountains while viewing the desert, so it’s vital to keep all of them open.

Surrounding the Abajo Mountains, the local ATV club SPEAR has adopted many primitive roads that are iconic for motorized recreation. These are just some of the routes that should remain open for OHV riders and for access to non-motorized recreation, camping, hunting, harvesting of wood and gathering of other renewable resources among the many uses of this area by the many components of our American culture.

4. Planning for the expanded BENM shouldn’t be done until litigation is resolved.

While the State of Utah and other stakeholders are legally challenging the need and authority of proclaiming a monument that’s larger than some other states, the BLM and USFS shouldn’t be spending their limited resources on planning. For one thing, the state’s case has merit, as Chief Justice John Roberts filed a statement on 3/22/2021 addressing limitations of Antiquities Act authority to “be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Critically the act limits protection to “objects of historic or scientific interest that are situated upon the lands,” which shouldn’t be interpreted to include things like mountain ranges or “cultural landscapes” because those things are the land itself, not “objects… situated upon the lands.” Further, concepts like a “cultural landscape” or “spiritual landscape” don’t even have discrete boundaries. The 1.36 million-acre boundary simply spans the 90 miles of San Juan County from the Colorado River to the San Juan River. Despite the fact that the Bears Ears Buttes are visible on the horizon from some of this boundary, and despite contorted interpretations of the Antiquities Act, the planning area isn’t a distinct landscape, and it’s not the smallest area compatible with the proper care and management of any object that congress intended to protect when passing the Antiquities Act. For another thing, there is simply no imminent threat upon significant resources in the planning area that would depend upon designation of the 1.36 million-acre monument. The resources could use more and better basic management, including site development / maintenance, education, and law enforcement, none of which require overhauling land management plans, and all of which are shortchanged by an expensive planning process that is largely grasping at concepts that are legally dubious.

5. From the outset, scoping needs to portray the current management accurately and portray the affected area in sufficient detail for the public to meaningfully participate.

If the 1.36 million-acre planning area is upheld in court, then the BLM and USFS may commence scoping, but only by starting over rather than propagating the current AMS that incorrectly portrays the plans that are currently in place. Several major inaccuracies are addressed in Parts 8 through 10 of these comments. They give the public a false impression of the status quo, which undermines the planning process thus far, so it should start over. Also the AMS erroneously contends that Presidential Proclamation 10285 requires the agency to change its “no action” alternative, as addressed in Part 11 of these comments. Another reason for planners to go back to square one is because nothing in the ePlanning site adequately conveys the planning area in enough detail for the general public to recognize all of the routes and other resources affected, let alone the layers of management. In the modern era, scoping for an area from the outskirts of Moab to Mexican Hat that involves dozens of spatial layers of resource descriptions and managerial prescriptions should provide an interactive map with such layers, especially since the planning areas encompasses two federal agencies and the widest possible range of settings (from the region’s major rivers to its talus slopes above tree line). Not only would developing a draft EIS based only on the current scoping period fail to comply with NEPA, but it would further erode public trust that has mired BENM since its inception over a decade ago as a campaign for Greater Canyonlands and Cedar Mesa national monuments.

6. Existing plans for the 1.36 million-acre area do not interfere with genuine interest to improve conservation.

When the Antiquities Act was established to give presidents the authority to more closely manage objects of antiquity, federal land managers didn’t have well-staffed field offices or many other laws granting them sufficient authority. Since then, myriad laws have been created, including the National Environmental Policy Act, National Historic Preservation Act, Archaeological Resources Protection Act, Paleontological Resources Preservation Act, Federal Land Policy and Management Act, Endangered Species Act, and Native American Graves Protection and Repatriation Act to name a few. The USFS’s 1986 Manti-La Sal National Forest LMP and the BLM’s 2008 Monticello RMP added further protections and layers such as ACEC. The USFS and BLM travel management plans (TMPs) have already closed half of the motorized routes that existed in this planning area, and further restrictions would simply exacerbate management issues. Generally speaking, this planning area doesn’t need more restrictions, it needs more basic management. It needs managers to expand and refine the engineering, education, and enforcement that are pillars of sustainable recreation. It’s this unsung work, more so than sweeping proclamations or dramatic planning processes, that would actually protect the stated objects and values.

7. Planning for BENM should recognize that the State of Utah is increasing its support of trail work, education, and law enforcement in the planning area.

So long as routes are open to OHV use, they are eligible for increasing support, particularly from the State of Utah. The state’s OHV Program currently provides several million dollars for trail work and education, funded by OHV registration fees, so it will keep pace with increases in use. Further the new DNR Division of Outdoor Recreation is hiring staff to do more trail work and enforcement patrols specifically in southeast Utah. Further, Utah’s new Off-Road Vehicle Safety Education Act will require (a) all OHV operators to complete an education course, (b) all ATVs to display license plates for easier identification, and (c) vehicle operators who are convicted of going off-trail to repair their damage through community service. With these additional resources, the BLM and USFS can more effectively implement the current plans and resolve any issues with the status quo.

8. The AMS factually misrepresents the actual ROS zoning in Manti-La Sal National Forest.

The AMS claims ROS categories and boundaries to be current USFS zones when in fact they are merely proposed zones from the 2020 Draft LMP. These draft zones would zone half of the national forest as non-motorized when in fact the current LMP zones only 10% of it as non-motorized. The fact that 90% of the national forest is zoned motorized is particularly relevant because, despite this being the case since 1986, motorized access in the national forest has slowly but steadily decreased. It demonstrates the fact that motorized ROS zones pose no threat to non-motorized recreation.

What’s worse, the AMS claims the current ROS boundaries to be even more restrictive than the proposed zones form the 2020 Draft LMP. For example, the proposed ROS zones from 2020 Draft LMP provided a motorized corridor for Shay Mountain Singletrack (098), which is missing from the AMS.

On top of all that, the AMS claims the current ROS categories to be more restrictive than they actually are. Traditional definitions of the semi-primitive non-motorized ROS zone allow motorized routes to be present in a limited fashion, but the AMS definition would make non-motorized ROS zones entirely non-motorized in summer. RwR is prepared to accept the new definition provided that most of the forest remains in a motorized ROS zone, but first the AMS must accurately describe the status quo. Most areas ought to retain a motorized ROS zone because such zones typically have a low density of designated routes, so motorized access is limited to less than 1% of their acreage. In other words, motorized zones are 99% closed to motor vehicles as far as the footprint of designated routes, and non-motorized zones are 100% closed to motor vehicles. Proposal for new routes must survive great scrutiny on almost any federal lands, particularly in a national monument, so motorized ROS zones don’t pave the way for motorized routes by any means. The merely leave flexibility for managers to consider their options to the extent that the many other layers of management allow.

This oversight disappoints us in the USFS and BLM alike. RwR has specifically addressed Shay Mountain singletrack and other open routes that would be summarily closed by the false ROS zones on numerous occasions, including:

  • Manti-La Sal National Forest Land Management Plan (LMP) scoping comments in 2004
  • Monticello Resource Management Plan (RMP) draft comments in 2008
  • Manti-La Sal National Forest Land Management Plan (LMP) draft comments in 2020
  • delivering a copy of the above comments to BENM manager on 11/16/2021

9.The AMS factually misrepresents the actual IRA policy in Manti-La Sal National Forest.

As with ROS, the AMS claims that current IRA policy prohibits motorized travel in the national forest, which contradicts the current LMP (as amended by the Roadless Rule) that’s in place. In fact the 2001 “Roadless Area Conservation” rule did not intend to affect current motorized trails or new ones, nor to close the current roads, only to prevent new roads from being constructed in IRAs. Further many Inventoried Roadless Areas (IRAs) contain motorized trails (including ones that are currently designated for motorized use, ones that were historically motorized, and some potential for new ones that are suitable to the given location). For example, the majority of motorized singletracks designated in the Abajo Mountains are in IRAs. This is entirely consistent with the Roadless Rule because IRAs are roadless, not motorless. As with ROS, the AMS misrepresentation of current ROS policy would summarily close designated routes such as Shay Mountain Singletrack (098). It’s just one example of a route for which RwR has submitted comments and met with USFS and BLM staff for nearly two decades, yet the AMS claims that it’s closed for multiple reasons, thereby straining the human capacity to continue participating in good faith.

10. The AMS factually misrepresents the actual LWC policy in the Monticello Field Office.

The AMS misrepresents current BLM policy for lands with wilderness characteristics (LWC) that are NOT managed for wilderness characteristics (MWC) to be “managed to minimize impacts on wilderness characteristics while still allowing discretionary uses.” Actually neither the 2008 RMP nor the 2020 MMP direct the BLM to minimize impacts to wilderness characteristics in areas that were found to be unsuitable as MWC.

11. The AMS makes baseless claims that Presidential Proclamation 10285 requires changing the “no action” alternative.

The “no action” alternative should live up to its name. First of all, it’s required as a baseline for analysis. Second, Presidential Proclamation 10285 doesn’t compel such changes. For example, the proclamation doesn’t address wilderness characteristics in areas previously deemed unsuitable for MWC. Therefore LWC should be managed as is in the “no action” alternative and, frankly, at least one action alternative since wilderness characteristics ostensibly have nothing to do with monument proclamation.

12. Conclusion

This letter highlighted RwR’s greatest concerns but, for more details, please see our addendum.

 

Sincerely,

Clif Koontz
Executive Director

Ride with Respect logo - ridewithrespect.org
Ride with Respect
395 McGill Avenue
Moab, UT 84532
435-259-8334
501(c)(3)

 

ADDENDUM

Listed above this addendum are Ride with Respect’s most urgent concerns about the AMS for BENM, such as the prematurity of a planning process to commence during litigation, which actually undermines the defense of this expansion to 1.36 million-acres when each step of the process seems to forge ahead with additional restrictions at the expense of pragmatic measures that could be taken independent of monument status.

Another urgent concern is the prevalence of glaring inaccuracies in the AMS description of current plans in place, such as ROS, IRA, and LWC policies. It’s one thing to propose all of these changes, but it’s another to surreptitiously change them and claim that it’s been that way since 1986, 2001, or 2008, which dishonors the working relationship that you’ve built with OHV groups and the State of Utah among others. The inaccuracies have contaminated the current scoping process, and any further planning should start scoping over again.

Yet another urgent concern is the AMS contention that Presidential Proclamation 10285 irrefutably compels the BLM and USFS to make sweeping policy changes before the management plan for the expanded monument is even developed. While the agencies could and should consider changes if the expanded monument is upheld, it should not assume any immediate changes are needed, as a prevailing argument for monument proclamation is often that it simply gives existing protections a higher level of authority and attention.

Indeed, based upon RwR’s decades of assisting land managers to gain visitor compliance of the current policies, we sincerely believe that only by resisting the demands of wilderness-expansion groups and their proxies to restrict recreation much further can the BLM and USFS actually improve outcomes. Toward this constructive end, please closely review RwR’s additional concerns, which are less urgent yet critical to resolving conflicts.

12.A.  The 1.36 million-acre planning area has essentially reached a threshold of the minimum motorized access needed to effectively manage diverse recreation opportunities.

In some cases, route closure is truly warranted, and RwR has assisted federal and state agencies to plan and implement many route closures. However on most public lands where travel is limited to designated routes, including this planning area, the route network has been whittled down to bare bones over the past half-century. Some land managers default to closure as a convenient solution, when in fact excessive closures make it harder to gain compliance and harder to maintain the remaining routes, often displacing issues outside of the planning area. What’s more, excessive route closures often undermine education, as recreation is a gateway to learning about and developing appreciation for the surrounding resources.

Reflexive closure isn’t management, and no amount of closures would prevent deterioration of cultural sites, as the geographic extent of access or amount of use is rarely an inherent problem. Many routes need to be delineated, and others ought to be rerouted. Mostly they just need the many new users to understand the basics of their chosen activity, the social setting, and natural resources. A few bad apples need law enforcement, but a little law enforcement goes a long way, as news can travel fast in the age of social media. Positive peer pressure and public presence can also be effective, as criminals know that more visitation means more chance of getting caught. Anyone interested in deliberately harming cultural sites would think nothing of breaking rules about motorized travel to reach a site away from other motorized use, but they would think twice about breaking rules where there’s a greater chance of someone else coming around the corner, so access can actually protect sites that are actively managed and frequented by an educated public.

12.B.  The “closed” OHV area designation is not warranted outside of designated wilderness areas and WSAs in the 1.36 million-acre planning area.

A Nixon executive order directed managers to designate areas as OHV open, limited or closed. Unfortunately the Monticello Field Office and Manti-La Sal National Forest have already eliminated all OHV open areas, despite that some settings like sand dunes and slickrock are suitable for such use, and open areas provide a sort of ‘relief valve’ for the vast majority of public lands that are limited. Even in areas that are limited, the routes typically occupy a fraction of 1% of the land and they have no quota for access, so they allow managers to close routes without having to designate the area as OHV closed.

On top of these things that apply to most public lands, the original BENM proclamation states “Any additional roads or trails designated for motorized vehicle use must be for the purposes of public safety or protection of such objects.” Since motorized routes would only be added for the purpose of safety or protection of monument objects, why would planners choose to preempt such options by designating an area as OHV closed? Granted, the designated wilderness areas and WSAs in this planning area already prohibit route construction, so it’s fine to designate these areas as OHV closed provided that such designation avoids the many motorized routes that are cherry-stemmed out of the wilderness areas and WSA’s. For the remaining areas, though, there is simply no compelling reason to designate them as OHV closed. Few routes have been added to the 1991 USFS TMP and 2008 BLM TMP, and it’s safe to assume that few routes would be added under monument designation, but rare exceptions could be a critical tool for managers in future.

Remember that motorized route additions could simply comprise of an electric bicycle trail or a slight extension of a road to facilitate ingress and egress or access for the many people with mobility limitations. In an urban setting, disability access is often thought of in terms of wheel chairs. In more remote and rugged settings, motor vehicles are often the only mobility device that’s practical, and providing vehicle access eliminates the need to verify who qualifies. These are important legal and ethical factors, and they may not result in any additional routes in IRAs or MWCs, but they should not be made dead-on-arrival by an overzealous RMP.

It would be simply unproductive to categorically prohibit additional routes beyond the designated wilderness areas and WSAs, particularly the laundry list of areas found in preliminary Alternative D of the AMS, which would automatically designate IRA, MWC, or LWC areas as OHV closed. Even worse, Alternative D would designate the following areas as OHV closed:

  1. Areas where OHV use has damaged or is a current or foreseeable future risk to the protection, restoration, and resiliency of BENM objects and values
  2. Areas where OHV use affects traditional use and cultural setting
  3. With the exception of existing designated routes, areas within 300 feet of riparian habitat, perennial springs, and other perennial aquatic ecosystems.

It would be impossible to map such areas, or even to interpret such criteria, as they are extremely vague and yet strict. How could managers be expected to objectively decide in which areas OHV use may in future pose a risk (in contrast to existing policies such as “will cause adverse effects”) or may affect a “cultural setting” (in contrast to the discrete nature of archaeological sites that are listed on the NRHP)? Couldn’t one argue that any area may meet these criteria, rendering them meaningless? When adding motorized routes, avoiding riparian habitats is a great rule of thumb. However, to maintain a low grade for sustainability, motorized routes generally ought to contour hillsides, which often requires crossing riparian areas. Provided that routes cross riparian areas in the most suitable locations and utilize structures like hardened fords or culverts as needed, they don’t significantly degrade the area, and in fact the crossings can foster an awareness and sense of stewardship of riparian resources. Also for an RMP to prohibit such additions with a 300-foot buffer at the outset, particularly when the monument proclamation already requires that such additions improve safety or protection of monument objects, would simply not help future planners who will need to contend with circumstances that cannot be known decades in advance.

12.C.  As with OHV area designations, any alternatives developed for an RMP should avoid limiting the addition of motorized routes beyond the severe limitations already made by presidential proclamation.

Of the preliminary action alternatives in the AMS, even the most flexible one still unduly restricts the consideration of adding motorized routes. Preliminary Alternative B states “Future implementation-level travel planning would allow additional travel routes only in frontcountry and semi-primitive roaded zones, and only if the primary purpose is the protection, restoration, and/or increased resiliency of BENM objects and values or for public safety.” Even in a backcountry setting, if a route addition might improve public safety or the protection of monument objects, it should eligible for consideration without having to amend the RMP. RMPs and LMPs are rarely amended to facilitate the planning of a single route, so the compounding effect of all these limitations to travel planning would essentially stunt proactive planning for the life of the RMP.

12.D.  Planning for BENM should not reduce the concept of a backcountry setting to mean primitive or non-motorized.

The term backcountry has traditionally been used to convey a less developed setting that requires more self-reliance, but it has not necessarily meant an absence of all development or motorized travel. After all, people have been riding motorcycles and driving Jeeps in backcountry settings for over a century, and quite commonly ever since World War II. If backcountry were meant to be synonymous with the primitive ROS class, then it would simply be called a primitive area, but backcountry is meant to include the semi-primitive motorized ROS class. Backcountry is a useful way of covering all semi-primitive and primitive zones, and we believe that most of it should be zoned motorized, as the majority of acreage in a motorized zone will be non-motorized in practice if current agency plans are any indication.

12.E.  The AMS incorrectly portrays the San Juan RMZ area to be currently designated as OHV closed when in fact it’s designated as OHV limited, and it should remain so, as OHV limited is consistent with presidential proclamations.

Representation of the San Juan Recreation Management Zone (RMZ) appears to be yet another area in which the AMS has a major factual error. While it’s true that the 2020 MMP designated the southwest corner of the San Juan RMZ as OHV closed, it designated the majority of the San Juan RMZ as OHV limited, and this area has several motorized routes that provide prized access to the river. Therefore the “no action” alternative and in fact all the other alternatives should designate most if not all of the San Juan RMZ as OHV limited. After all, there will be plenty of opportunities to close one or more motorized routes there during processes like a monument-wide TMP and any subsequent amendments that are specific to the San Juan RMZ.

By the way, the AMS at one point defines “RMZ” as “resource management zone,” but the current definition is “recreation management zone” per the 2020 MMP. Also the 2020 draft LMP uses the acronym “RMZ” to mean “riparian management zone,” so any future planning that combines BLM and USFS terminology probably ought to distinguish these terms.

12.F.  Minimizing the density of motorized routes, in and of itself, is not an appropriate goal in RMPs.

While the density of motorized routes may correlate with the condition of other resources in some cases, other factors like trail design are much more significant to resource conditions, so RMPs should be developed accordingly. Further, in the 1.36 million-acre planning area, route density is already low, particularly when you consider that routes are typically:

  1. Travelled at speeds much lower than modern highways,
  2. Used at frequencies much lower than modern highways,
  3. Narrower than modern highways,
  4. Screened by topographic features,
  5. Screened by vegetation, and
  6. Possessing other characteristics that minimize their impact on surrounding areas.

If minimizing route density involves closing routes, it will probably prove costly and ineffective at improving resource conditions. Even if it involves capping the route density, this would prevent rerouting to avoid cultural sites or wildlife habitat since routes tend to be lengthened by reroutes, especially ones to reduce erosion caused by steep and sustained grades. Capping the route density could also hamper the designation of campsites, especially when campsites are clustered for proximity to a toilet, which often calls for a short loop road to be developed. In the AMS, preliminary Alternative D states:

“In OHV limited areas, road density would be minimized, and siting criteria would be identified, especially in important resource areas, to ensure the protection, restoration, and/or increased resiliency of BENM objects and values. Future implementation-level travel planning would not allow designation of additional routes but would focus on refining (as needed) the existing designated route network.”

Directing the minimization of route density is a bad idea, as route density is already low, and further reductions just to meet a density goal tend to cause more problems than they solve. Further, Alternative D’s sweeping ban adding motorized routes anywhere in the planning area for any reason is dangerously rigid for a general plan that may be in place for decades, given our points in Parts 12.A through 12.C.

12.G.  Planning for BENM should not rely on past planning processes that bypass NEPA and clearly lack a willingness or ability to manage for the primary type of motorized travel.

The AMS states “In its 2015 Travel Analysis Report for Subpart A Manti-La Sal National Forest, the USDA Forest Service found that approximately 37 roads (approximately 21 miles) were identified as “likely not needed” in BENM (USDA Forest Service 2015).” USFS and BLM planners must realize that this internal planning process failed to provide public participation, and this failure exposed the agency’s lack of willingness or ability to adequately provide for motorized recreation opportunities. By and large, the current TMP across Manti-La Sal National Forest is barely adequate. In many parts of the forest, the agency has wisely ignored non-compliance ever since the TMP was approved in 1991, as the TMP process overlooked existing routes that continue to be important without causing problems. There isn’t much mileage for motorized use, particularly off of improved roads, so virtually all primitive roads are of significant value. The 2015 Travel Analysis claims otherwise, so public input is clearly needed, and public input should not be eclipsed by premature use of internal planning documents.

12.H.  Planning for BENM must recognize congressional prohibition on buffering wilderness areas.

The AMS states:

“The Peavine Corridor is a narrow, motorized corridor around motorized trails #0089 and #5379 in a cherry-stemmed section of Dark Canyon Wilderness. This corridor is excluded from the wilderness boundary; however, increased use levels of the corridor are creating impacts to the adjacent designated wilderness through increased erosion and other resource concerns.”

Impacts to the adjacent wilderness cannot be used to restrict access given that the Dark Canyon Wilderness was established by the Utah Wilderness act of 1984, which states:

“PROHIBITION ON BUFFER ZONES  SEC. 303. Congress does not intend that designation of wilderness areas in the State of Utah lead to the creation of protective perimeters or buffer zones around any wilderness area. The fact that nonwilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.”

The USFS should not plan to close or restrict this route for the sake of adjacent wilderness character. Further, Peavine road issues may stem from unnecessarily rigid management of Dark Canyon Wilderness. The anti-buffer language and boundary setbacks are generally provided to allow for reasonable management of the road. Land managers are welcome to lean on its partners for education and maintenance projects to ensure sustainability of the Peavine road, but it must start with management providing reasonable latitude to fix the road in a cost-effective manner.

12.I.  Planning for BENM must not automatically convert all LWC to MWC.

In the 1.36 million-acre planning area, MWC areas have been deemed suitable to manage for wilderness characteristics, while the other LWC areas have been deemed unsuitable. In the absence of further review and an extensive public process, the BLM shouldn’t be suggesting a wholesale conversion of LWC to MWC. Yet preliminary Alternative D states “Lands with wilderness characteristics: All the lands in BENM that have been inventoried as having wilderness characteristics would be managed to maintain and protect those characteristics.” It leaves us with the impression that the agency’s suitability determination is subject to change on a whim, or on political pressures despite that none of the BENM proclamations direct the agency to manage for wilderness characteristics beyond what congress already requires. Wilderness characteristics are a questionable construct to begin with, and managing for them can interfere with effective management of forests among other resources, so they shouldn’t be shoehorned into a planning process centered upon antiquities.

12.J.  Planning for BENM should institute any new kinds of regulation sparingly, and recognize organized and commercial activities as opportunities for partnership.

The AMS preliminary Alternative D states:

“Recreation areas: Management actions would limit the intensity and density of recreational uses across BENM through prescriptive controls (e.g., group size limitations) to protect, restore, and/or increase resiliency of BENM objects and values. This alternative may incorporate requirements to obtain permits for recreational activities in specific situations (e.g., known recreational conflicts with BENM objects and values). Most SRPs would be prohibited.”

Given that BENM has been expanded to 1.36 million acres of federal land, new controls should be applied to the most critical areas, not “across BENM.” For example, the widespread interest among motorized and non-motorized recreationists in Arch Canyon may warrant some type of new controls, but such controls should not apply to the vast majority of routes across BENM.

The statement “most SRPs would be prohibited” is downright self-destructive. Since SRPs are more regulated, organized and commercial uses are often more responsible than casual uses. Mind you, casual use is still important for many experienced visitors and local residents, and commercial uses still need some regulation. But current SRP policy is already quite regulated, and both the BLM and USFS should do a better job recognizing the SRP holders as partners. Organized and commercial activity is a key component to ensuring that the 1.36 million-acre planning area can contribute to the local economy in a sustainable manner.

12.K.  Planning for BENM should utilize proactive recreation management to protect monument objects and values in the long term.

The AMS preliminary Alternative D states:

“Recreational facilities: Existing recreational facilities would be maintained and improved only as needed to protect, restore, and/or increase resiliency of BENM objects and values. No new recreational facilities would be allowed unless their primary purpose is the protection, restoration, and/or increased resiliency of BENM objects and values.”

Requiring any kind of recreational development to have protection as its primary purpose would be a grim and ultimately doomed way to manage recreation across the 1.36 million-acre planning area. By prohibiting recreational developments that aren’t primarily for protection even if they would have few negative impacts, it would keep managers in a reactive stance, leading to rampant displacement and a triage pattern of management. With or without monument designation, it’s obvious that heavy development is not appropriate in most of the planning area, but recreation management often calls for development that has some negative impacts in the short term to reduce them in the long term. Such expertise is not only beneficial, it’s key to getting a handle on 21st Century issues.

12.L.  Planning for BENM must adequately assess the socio-economic benefits of motorized recreation, and how it would be affected by any alternatives.

As described in Part 3 of our comments, motorized recreation is a critical component of diverse recreation opportunities, and it must continue to be available across most of the 1.36 million-acre planning area given that it occupies most of San Juan County that’s not already occupied by the Navajo Reservation, Canyonlands National Park, Glen Canyon National Recreation Area, or private land. Within motorized recreation, the full spectrum from trials motorcycling to RV camping is vital to the tourism economy and the quality of life among local residents. Wintertime activities are particularly important to support a year-round economy and lifestyle.

Since the 1.36 million-acre planning are covers most of the Abajo Mountains, particularly the part that’s less prone to avalanches, it’s essential for winter recreation by over-snow vehicles. Snowmobiles have become significantly quieter over the past couple decades, and OHVs are likely to follow in this path, making motorized recreation even more compatible with other uses. Motorized recreationists tend to spend significantly more money than their non-motorized counterparts, tend to be repeat visitors so education campaigns don’t have to start from scratch, and tend to come from nearby states which often more than offsets their carbon footprint compared to nationwide or international travelers.

All preliminary alternatives of the AMS, even the so-called “no action” alternative, would hamper motorized recreation. The effects should be thoroughly analyzed, and less severe alternatives should be developed, plus a “no action” alternative that accurately reflects the status quo.

12.M.  Collaborative efforts should remain faithful to the congressional directive of public lands to benefit the public as a whole.

The BENM proclamations encourage collaboration with indigenous Americans, which we support particularly when it comes to local voices such as the Aneth Chapter of the Navajo Nation, and especially in regard to cultural sites for which indigenous Americans have unique connections.

While the 1.36 million-acre planning area has literally thousands of cultural sites, the majority of it is not occupied by a site. When it comes to the LMP proposed by the Bears Ears Inter-Tribal Coalition on behalf of the Bears Ears Commission, we have several concerns that depend upon federal agencies to address.

The LMP proposal classifies recreation merely as a threat to monument resources rather than recognizing recreation as vital to all components of American culture and to the physical, mental, and spiritual health of individuals. Concepts like recreation, culture, spirituality, and traditional use overlap. For example, many people of the LDS faith rely on OHVs to experience historic, cultural, and spiritual aspects of Hole-in-The-Rock Trail.

The LMP proposal doesn’t acknowledge that the USFS’s 1991 TMP and BLM’s 2008 TMP dramatically reduced the scope of negative impacts. It proposes to reduce artificial noise in the monument without defining artificial noise or spelling out how such noise would be reduced in the face of increasing use. RwR strongly supports common-sense measures like outfitting vehicles with effective mufflers, lowering engine speed when passing other people and animals, and separating popular campsites and trails by relocating one or the other. However these measures may be offset by continued growth in OHV recreation, in which case overall noise may not be reduced from current levels. Fortunately, we believe that the vast majority of the 1.36 million-acre planning area doesn’t have a noise problem, in which case the goal should be to minimize the proliferation of noise rather than reducing it from the current levels in total. Likewise we are concerned about the LMP proposal’s other austerity measures including:

  1. Prohibiting OHVs in and around riparian areas (as opposed to simply minimizing impacts),
  2. Prohibiting new roads (as opposed to simply requiring that they have a protection or safety purpose),
  3. Prohibiting camping within a half-mile of springs or water sources (as opposed to simply minimizing impacts),
  4. Restricting bicycle use to motorized routes (as opposed to simply restricting bicycle use to designated routes),
  5. Restricting rock climbing to designated areas (as opposed to simply prohibiting rock climbing at cultural sites).

When wilderness-expansion groups, indigenous groups, and ultimately the presidential administration campaigned for a BENM leading up to the 2016 proclamation, they insisted that monument designation could accommodate OHV riding opportunities. We hope that all parties can work together to make that vision a reality.

 

 

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Labyrinth Rims/Gemini Bridges Travel Management Plan Comments

BLM Moab Field Office
Attn: Labyrinth/Gemini Bridges Travel Management
82 East Dogwood
Moab, UT 84532

Re: Labyrinth Rims/Gemini Bridges Travel Management Plan

EA #DOI-BLM-UT-Y010-2020-0097-EA

Dear Planning Team Members:

The Trails Preservation Alliance and Ride with Respect appreciate the opportunity to submit the following comments on the above-referenced draft Environmental Assessment:

1. The BLM should start the present NEPA process over and issue a Notice of Intent to do a full Environmental Impact Statement (EIS) instead of an Environmental Assessment (EA)/Finding of No Significant Impact (FONSI), because alternatives are being seriously considered, which if adopted would significantly impact the human, socio-economic environment, for NEPA purposes.

This EA/FONSI process cannot stand the test of validity, because such a high percentage of established open roads and trails are being considered for permanent closure in the planning area—a globally recognized motorized recreation destination of unquestioned significant economic and cultural value in the planning area, in adjacent communities, and really in the entire State of Utah and much of Colorado. The Trails Preservation Alliance and Ride with Respect advocate to keep such roads and trails open (Alternative A), or at worst adopt an alternative that only scarcely reduces access to such roads and trails, in either of which cases the “impact” to the human, socio-economic environment would not be “significant” for FONSI purposes.

However, the mere fact that alternatives are just being seriously considered, that would greatly reduce the motorized recreation values in the planning area, demonstrates the legal necessity of converting this process to a full-blown EIS process. Again, a finding of no significant impact would not stand the test of validity under some of the alternatives being seriously considered, as such closures portend impacts to the human, socio-economic environment that are significant, and the human, socio-economic environment is just as much the “environment” for NEPA purposes, as any other resource value at issue here.

Without waiving the foregoing request to re-launch this process as an EIS, the Organizations, under respectful protest, participate in this comment period during the current EA process, by submitting the additional points that follow.

2. Introduction

Please accept this correspondence as the input on the Labyrinth Rims/Gemini Bridges Travel Management Plan (“The Proposal”) of the Organizations identified above. The Proposal fails to properly apply relevant federal law and settlement agreements that the motorized community has been party to, and the Proposal fails to recognize that it may have significant negative pre-decisional impacts on other efforts that are ongoing in the Field Office and planning area. Each of these challenges are presented in addition to noting the direct conflict between the Proposal and basic NEPA requirements and practices.

Too often the Proposal fails to correctly apply Congressional actions and determinations on the management of Congressionally designated areas, such as Wild and Scenic River areas and management of the Old Spanish Trail. Often the Proposal seeks to exclude usages that are identified by Congress as defining characteristics of these areas. Moreover, the Proposal  seeks to elevate usages that are low in priority for the Congressionally designated areas. Given the systemic failures throughout the Proposal, the Organizations have no choice but to support Alternative A and request that the Proposal be reviewed for basic consistency with the applicable federal laws. Once corrected, the Proposal  should be released to the public for a meaningful comment period. Alternative D once appeared at first blush to be something the Organizations could support, we are unable to do so on closer review as the Proposal’s overall range of alternatives is artificially skewed due to defects in the planning process.

3. Who We Are

Prior to addressing the specific concerns of the Organizations regarding the Proposal, here is a brief summary about the Organizations submitting these comments.

The Organizations, their counsel, or affiliates including groups for which the Organizations are members, have been involved in discussions with the BLM for decades, both concerning access to these areas in general and concerning the development of travel and resources management plans for these areas. In addition to the planning efforts, our involvement has continued on behalf of recreation interests in litigation by the Organizations, their counsel, or affiliates including groups for which the Organizations are members. This work stretches from the Settlement in SUWA v. U.S. DOI, Case No. 2:12-cv-257 DAK (D. Utah) to bringing successful jurisdictional challenges in SUWA v. Babbitt, 2000 U.S. Dist. LEXIS 22170 (D. Utah 2000), rev’d, 301 F.3d 1217 (10th Cir. 2002), rev’d and remanded, Norton v. SUWA, 542 U.S. 55 (2004). We remain committed to this presence in ongoing management of Utah BLM lands. Many of our local partners have intervened in defense of the BLM when its plans and decisions were legally challenged. Some of these efforts have resulted from the 2017 SA now being implemented, and we continue to be involved with planning/travel efforts throughout the region. We have worked diligently to support these efforts in many ways. While we understand the difficulties that the BLM has encountered in the management of this area, we believe strongly that all recreational interests must be allowed access to the planning area, as it is one of an increasingly few parts of the region left in true multiple-use management.

Moving forward with the successful path that has been developed for this area is the right way forward in the Organizations’ opinion, but the Proposal does not provide for or follow that path. Arbitrary decisions have been made on which to base the Proposal, and the Proposal appears to rely on Supreme Court decisions that are not germane to the management of NTSA routes. Moreover, pre-decisional actions impacting camping resource planning call the validity of the Proposal into question. Routes and opportunities at issue in the Proposal are world class; they are worthy of expert and thorough analysis that the Proposal currently does not provide.

The Trails Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities.

Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands including several-thousand hours in the planning area such as rerouting over a dozen trails away from sensitive resources through travel-plan amendments of the 2008 RMP. Over 750 individuals have contributed money or volunteered time to the organization.

Collectively, the TPA and RwR are referred to as “The Organizations” herein.

4. The 45-day comment period provided is arbitrarily brief and does not reflect the recreational value of the routes in the area. It should be extended at least another 45 days.

The Organizations strongly object to the unreasonably short comment period that has been provided for the Proposal. While 45 days may be slightly more than the minimum required by law, 45 days is far too short for the public to digest and provide meaningful input on the Proposal. The goal of this effort should be to provide a high quality meaningful plan for the management of the area that is based on high quality data and analysis. That goal is not evident in the Proposal as it does not adequately reflect the global values of the subject routes being addressed.

The short response time frame was made even shorter by how the basic data for the Proposal was rolled out well.  Original versions of maps and other information were often incomplete, contradictory and an obstacle to public engagement, instead of the detailed high quality information that NEPA requires. Often routes were identified as closed in PDF versions of alternative maps but were identified as open in GIS data for the same alternative  provided with the Proposal.  Other routes were only partially reflected in maps provided, as start or finish locations might have been identified but are simply not connected.  This is conflicted further by the fact that managers often informed the public that routes were open or closed in alternatives when the data and mapping indicated otherwise.  The BLM should have completely released all pertinent information prior to commencing this NEPA process.

The BLM has the authority to extend the public comment deadline as we are requesting.  Refusing this request on the guise of avoiding further delay makes no sense.  Because the development phase of this EA took years, the all-important public process should not be compromised just because the BLM took so long in development.  Long development phases mean longer time for public review and comment.  That is only fair.

5. Alternatives B and C fundamentally violate the Moab FO RMP and hence NEPA, FLPMA and the APA.

5(a).The planning area’s existing route network underwent extensive analysis in 2008, and that analysis, documented heavily in the 2008 RMP, strongly supports the existing route network for all issues except the additional review agreed to in the 2017 Settlement Agreement (2017 SA).

The 2017 SA left the BLM free to add routes to the current TMP (whether the routes are existing or even just proposed for construction), as much as subtract routes from the current TMP, as much as make no changes at all to the current TMP. In short, the 2017 SA did not obligate, let alone authorize, any sort of bias or pre-decision on the BLM’s part when revisiting TMPs. Further, the BLM had already obviously demonstrated minimization when the 2008 TMP closed 40% of the routes that were inventoried by 2003 in this planning area, many of which were in lands with inventoried wilderness characteristics.

At the very least, the 2017 SA did not relieve the BLM of its FLPMA and NEPA obligations to conduct a full-scale EIS and amendment of the 2008 RMP before considering changes to polygon-based, wilderness characteristics management suitability determinations. But that is what alternatives B and C effectively do, by presuming that all routes in lands with wilderness characteristics polygons should be closed by default unless proven again to have an overriding purpose and need. The 2017 SA did not authorize such an unfounded reversal of presumptions, especially given that the routes up for closure in alternatives B and C were verified to exist and thoroughly analyzed in the 2008 RMP, and given, as stated above, the BLM had already undergone a rigorous minimization in 2008 and still had just as free of a hand under the SA to add routes to the current TMP as it did to subtract routes. This reversal of presumptions and resulting massive-scale proposed closure in polygons determined not suitable for WC management, evidences the BLM’s shirking of its FLPMA and NEPA obligations.

The mistaken nature of the BLM’s reversed presumption is further shown by the fact that virtually all existing routes, particularly the 60% of existing routes that were left open by the 2008 TMP, provide some recreational value even if they’re low in use (and even if they have some degree of revegetation). Granted, if a new route is proposed for construction, the onus may be on justifying its purpose. The Proposal considers only existing routes, in fact only those routes currently designated open, so the onus should be justifying what the purpose would be of closing them.

The following cannot be emphasized enough:  How thorough was that 2008 analysis and minimization of existing routes? Thorough enough that approximately 40% of inventoried motorized routes in the current planning area were closed. That is the fruit of the 2008 RMP. Further underscoring the presumptive validity of the 2008 RMP, the Moab Field Office’s 2015 review of the effectiveness of the 2008 RMP, found that the current recreation management strategies are working well and there was no need to amend the 2008 RMP. The upshot is that the remaining routes which survived that rigorous 2008 analysis and wholesale cuts, bear the controlling imprimatur of valid purpose and need, subject only to the required additional review scoped in the 2017 SA.

It is unfounded to draw from this background and context the mistaken presumption that all routes in the current planning area are worthy of closure unless they are once again re-proven to validly serve a purpose and need. This reversal of presumptions and resulting looming closure of still another 40% of routes, is a material legal flaw of the Proposal’s action alternatives to varying degrees. Thus the obvious wholesale suitability changes contemplated in alternatives B and C can be legitimately adopted only through an RMP amendment.[1]

5(b).Alternatives B and C run headlong into the 2008 RMP’s rejection of the invitation to conform motorized travel management to the pro Red Rock Wilderness Proposal alternative.

During development of the 2008 RMP, wilderness-expansion groups tried to court the Moab FO into manufacturing wilderness by eliminating the roads that were anathema to the groups’ Red Rock Wilderness Proposal.  The 2008 RMP ROD at Page 13 rejected this invitation:

The RRH [Redrock Heritage Travel Plan Alternative] plan’s roadless polygons match almost identically with wilderness proposals submitted by Southern Utah Wilderness Alliance (SUWA) and/or other interest groups. To achieve this “roadlessness,” RRH has recommended for closure virtually all roads within these proposed wilderness polygons, without specific mention or regard for purpose and need.

The RRH Travel Plan mirrors the Red Rock Wilderness proposal, which encompasses over 46 percent of public lands in the MPA. RRH assumes that if currently available motorized routes were eliminated, these areas would be eligible for the protection of their wilderness characteristics.

Almost all of these routes and areas lie within RRH wilderness proposals. In its comments, there is repeated emphasis on the need to set aside areas for non-motorized recreation and, if necessary, to “create a rare remote and wild area.” Current BLM policy prohibits the creation of new wilderness study areas, although it does allow managing areas to protect wilderness characteristics. Several of the areas cited in RRH’s proposal were found by BLM in 1999 to lack wilderness character. Many of the specific routes identified by RRH were either described as roads in the BLM 1999 inventory or described as roads at the time of the establishment of the original WSAs. Roads, by definition, are an impact on wilderness characteristics.

Alternatives B and C of the current draft EA are attempts at an “end around” of the controlling 2008 RMP’s stance against creating de facto wilderness through road closures.

5(c).     Alternatives B and C run headlong into the 2008 RMP’s rejection of the invitation to manage for alleged wilderness characteristics in areas found not suitable for wilderness characteristics management.

The near complete overlap between the concentrations of road closure under alternatives B and C of the Proposal, and the polygons for wilderness designation/wilderness characteristics management perennially demanded by wilderness-expansion groups, is too great to be legitimately coincidental. It belies a conscious, illegitimate purpose, a purpose to undermine the non-suitability management determinations of the 2008 RMP.  While several areas within the Labyrinth Rims/Gemini Bridges TMA are considered Lands With Wilderness Characteristics, the 2008 RMP expressly decided those areas were not suitable for wilderness characteristics management due to their high density of popular motorized routes.  In short, alternatives B and C attempt an “end around” the 2008 RMP’s controlling stance against managing for wilderness characteristics, lands for which the 2008 RMP determined are not suitable.

Further, as stated above, even though the 2008 RMP determined none of the current planning area to be suitable for wilderness characteristics management, it did minimize impacts to lands with wilderness characteristics within the current planning area by closing many existing routes for other purposes. The Proposal should recognize the minimization already done in all of the current alternatives including Alternative A.

6. Alternatives B and C effectively ignore the Congressional prohibition on wilderness buffer zones adjacent to Labyrinth Canyon in Emery County.

The 2019 Dingell Act passed by Congress created the Labyrinth Canyon Wilderness Area on the other side of the Green River from the Labyrinth Rims/Gemini Bridges TMA. But Congress expressly mandated against wilderness-type management in so-called buffer zones adjacent to any wilderness areas created in the Dingell Act. Moreover Congress left the Labyrinth Rims/Gemini Bridges TMA for continued multiple-use management that includes motorized recreation. The BLM should reject alternatives B and C for the additional reason that they essentially create a de facto wilderness zone to “buffer” the Labyrinth Canyon Wilderness.   Sight and sound impacts experienced in Labyrinth Canyon are simply irrelevant and immaterial to the question of how to manage the Labyrinth Rims/Gemini Bridges TMA.

Moreover the Green River’s Wild and Scenic River designation does not justify buffer zone management either, as the Scenic designation for the relevant river segment does not limit motorized use within the corridor, let alone limit use outside of the corridor. Compliance with the Dingell Act’s mandate against buffer management for the Labyrinth Canyon Wilderness and management of Labyrinth Canyon as a Scenic River (and not a Wild River) is only possible by rejecting alternatives B and C of the Proposal.

7(a). The mapping issues displayed in the Draft EA Proposal should be corrected.

Problems with the Proposal’s maps were immediately identified by the OHV community after the Proposal’s initial release. Yet agency managers waited a significant time to post PDF maps of the revised alternatives from scoping.  The BLM’s e-Planning page has a maps tab, which is still showing the PDF maps for the preliminary alternatives for all except Alternative B. The main documents tab includes PDF maps for all the updated alternatives; however, these maps do not match either the BLM’s GIS data files or the alternative actions listed in the individual route report files. More significantly, many discussions with BLM staff on concerns around a particular route have been based on information that is not reflected in any of the maps.  As a result, the public have been forced to devote significant time in the 45-day comment period just trying to understand what each alternative actually proposes.  That is not acceptable.  Basic notions of Moab FO pride and professionalism dictate that you correct these mapping issues and give the public significantly more time for review and comment with proper mapping in hand.

On top of delays and inaccuracies, the PDF maps provided are not sufficient for the general public to follow. They are 11″ x 17″ pages representing a planning area that’s over 300,000 acres, containing no place names, and no way to tell which routes are the graded (Class B) roads that visitors use to orient themselves to the area. In addition to improving these maps, the BLM should have included alternatives B, C, and D as layers in the interactive map that it posted on ePlanning. The Moab FO demonstrated this capability when posting all of the alternatives as layers in the interactive map for the Canyon Rims travel plan, a planning area that didn’t have nearly the public interest of Labyrinth Rims/Gemini Bridges. Further, when clicking on a route, the interactive map should display more GIS fields than simply the route number and length such as the dates of a seasonal closure. In fact, clicking a route on the interactive map ought to provide most or all contents of the route report, as currently the public can only view a route report by downloading a 650MB-folder of all route reports. The fact that the interactive map shows only Alternative A and lists only the route number and length prevents most members of the public from understanding which actual routes on the ground are open/closed or limited by width/season in each alternative.

When PDF maps were finally released, there were immediate and significant conflicts with other documents that had been provided. This challenged understanding of even Alternative A as the Proposal did not align with routes on the ground nor accurately reflected the open status of some globally recognized routes.   According to the GIS files that BLM provided, examples of serious errors with PDF maps throughout each alternative are:

  1. The upper part of the Mineral Canyon trail shows as open with a seasonal closure when it is actually closed and limited to administrative use;
  2. The Bull Canyon Overlook trail shows as closed when it is actually open with a seasonal closure;
  3. Newly added closures are not shown in several alternatives for several key segments of the Seven Mile Rim Jeep Safari trail;
  4. Alternative B was modified to close parts of the Seven Mile Rim trail as requested by Grand County. However, it appears those same closures were incorporated into Alternative C as well, but that is not reflected in the PDF maps;
  5. The current version of Alternative C will now close the most iconic section of the Seven Mile Rim trail across the slickrock bench below Monitor and Merrimac Buttes to the top of Wipeout Hill;
  6. It will also close the segment through Tusher Wash leading over to the Tusher Tunnel area. This is the only connector route between the Courthouse Rock trail system and the Tusher Canyon trail system, so those are now isolated from each other; and
  7. A third segment of the Seven Mile Rim trail by the overlook of highway 313 is also closed. This closure, plus the closure in Tusher Wash, would leave several route segments designated open orphaned with no legal routes accessing them.

The impact of these mapping errors on alternatives is significant and prejudicial to the public’s ability to comment on particular areas or concerns.  The preliminary version of Alternative C is problematic. , But the updated version is significantly more so, because it negatively affects one of the most iconic Jeep safari trails and takes away trail connectivity in the Courthouse Rock area. To whatever extent the commenting public may have supported this alternative early after the Proposal’s release, the final version of Alternative C is significantly different and it is unknown if those members of the public are even aware of the changes in the alternative based on the “corrections”.

7(b). NEPA violations have been created by the haphazard release of inaccurate maps for the Proposal.

The Organizations addressed above the seriously problematic nature of the mapping information that has been provided by the EA.  This violates NEPA as the public has not been provided detailed high-quality information about the Proposal on which to comment. Rather information that’s critical to commenting on the Proposal has been slow to be provided and often contradictory in nature.  Courts have specifically addressed the haphazard release of information in this manner as follows:

Of course, all of these Section 102 duties are qualified by the phrase “to the fullest extent possible.” We must stress as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not make NEPA’s procedural requirements somehow “discretionary.” Congress did not intend the Act to be such a paper tiger. Indeed, the requirement of environmental consideration “to the fullest extent possible” sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts.[2]

All of this lends to optics suggestive of agency foot-dragging, which by itself has been found to violate NEPA.  For this reason alone, the Proposal should be returned to the agency for a full review of data and maps for basic consistency, and then released for an adequate period of time for the public to comment.  Right now, it is not an overstatement to say that the public cannot understand what is actually being proposed.

7(c).   2017 Settlement Agreement provisions regarding preliminary route proposals have been violated.

As the Organizations have specifically noted previously, we have participated in the development of these plans since day one and our interests had intervened in defense of the BLM when challenges were made to previous decisions. As a result of our status as a party to the litigation, we are also aware that the January 2017 SA specified that written comment would be taken from partners. The 2017 SA further specified that, prior to the release of the Draft EA, the BLM may seek further public and stakeholder input on the maps of preliminary alternatives and other documents “commensurate with the level of public and stakeholder interest,” which is obviously quite high for this travel plan. Not only did this public process not occur, all information to date in the effort remains of exceptionally low quality and often totally unavailable to the public to review for a wide range of issues even during the EA release. The Organizations are intimately aware that this pre-NEPA public process was designed to create consistent and accurate information for the NEPA process.  The Organizations are concerned about the general status of this effort, after the original Proposal was overturned by the Court’s acceptance of the 2017 SA that was based on poor route information being available and analyzed in the earlier effort.

The 2017 SA explicitly outlines this requirement for additional public input prior to the commencement of NEPA as follows:

“d. Public and stakeholder review of preliminary route evaluations. At the conclusion of the ID Team’s preliminary evaluation of all the routes being considered for designation in the TMP, BLM will prepare (1) a Travel Management Plan Scoping Report, including an appendix with copies of all public and stakeholder correspondence received to date, unless prohibited by law; (2) preliminary alternatives maps; and (3) draft route reports. BLM will make these documents available to the public and stakeholders upon completion. Commensurate with the level of public and stakeholder interest, BLM may seek further public and stakeholder input as to the preliminary alternatives maps and draft route reports and/or hold a public meeting to further engage the public in the travel planning process. All written input received from the public and stakeholders will be made available to the public as provided by law.”[3]

The Organizations are not aware of any public outreach that occurred before scoping of the Proposal, as required by NEPA, was commenced in April of 2021 despite the fact that above provisions clearly require additional outreach beyond mere compliance with NEPA requirements. There is no mention of this type of outreach in the Proposal either. Even if this outreach had occurred, the Organizations would have to question the value of the effort given the haphazard nature of data that is available currently.

This type of pre-NEPA public review is becoming commonplace with land managers as exemplified by pre-NEPA public release of Forest Plan revisions by the GMUG NF in Colorado and also the Ashley NF and Manti-LaSal NF in Utah. Clearly the above provisions require additional public input on the finalized draft of the Proposal. Compliance with the 2017 SA requirements of pre-NEPA public engagement would have resulted in a more meaningful public process once that NEPA was commenced, as the currently basic problems persist around the accuracy of mapping data.

The  2017 SA’s requirement for additional public input on revised maps has not been honored. During the scoping process, many users identified inaccuracies in mapping information. Impediments to the public process are what the 2017 SA provisions were designed to address and prevent prior to the NEPA process moving forward. Rather than fixing these errors and rescoping the effort, agency managers have chosen to move forward without the benefit of scoping under NEPA requirements based on accurate information.

While technical difficulties such as this might be acceptable with a longer comment period, such as a 90 day comment period, the impact of data being delayed a week is an almost insurmountable barrier to the public review process under a 45-day comment period. These types of problems negate assertions of compliance with the 2017 SA, as the public still is unable to understand what the final revised maps for the area are actually proposing.

8(a). Foundational decisions around the scope of the Proposal are factually unsupported and they conflict with the RMP and supplemental documents.

In addition to the unreasonably short comment period that has been provided, arbitrary decisions limiting the scope of analysis have been made prior to analysis in the Proposal even starting. These are foundational decisions critical to the scope and direction of the Proposal.  As an example, the Proposal summarily dismisses the possibility of any new routes in the planning are as they are outside the scope of analysis as follows:

Construction of new routes is not in the scope of this project; however, the possibility of future addition of new routes is part of the operation and management of the overall travel network (see Appendix L (TMP Implementation Guide), Section L.3.5). [4]

No basis or analysis is provided to address how and why this decision was found to be a viable starting point for the EA.  This is concerning as all information we are able to locate identifies that this is not a viable starting point for analysis, given the huge increase in visitation to the area since the previous round of closures impacted more than 40% of the routes on the Moab  FO.  The unreasonableness of this starting position is further supported by the fact that the EA clearly states there are no resource impacts from multiple use recreation on the trail network.

Rather than clearly analyze why the “no new trails” position was found to be a suitable starting point of analysis; the Proposal appears to hint that these decisions are the result of provisions in the 2017 SA.  That is unfounded as the 2017 SA allows new routes to be addressed under the settlement and subsequent NEPA, which is addressed as follows:

Nothing in this Settlement Agreement shall be construed to require BLM to adopt any particular alternative or portion thereof presented in a route report or NEPA document or to limit in any way BLM’s discretion to make route designations or adopt a final TMP, consistent with paragraph 2. Nothing in this Settlement Agreement shall be construed to limit in any way BLM’s discretion to open, close, or modify use on routes.[5]

Not only is the “no new trails” provision not supported by the 2017 SA, it also conflicts with the RMP provisions addressing the future of the SRMA. The RMP clearly and specifically identifies goals and objectives for the future development of the SRMA.  The RMP starts with a generalized vision for the management of the area as follows:

  • “Manage backcountry areas to facilitate scenic motorized touring on designated routes with special emphasis upon establishment of low-development, end of route parking areas and route signing.
  • Improve the road to the Mill Canyon Dinosaur Trailhead to accommodate passenger car traffic.”[6]

Had there been a desire to limit or restrict access to the area, such as with application of a cap on new trail, that would have been found in these provisions providing a general vision for the area moving forward.  Rather than providing this type of limitation, the general vision for the area identified that the goal was to provide quality recreational experiences for all types of users.

The RMP further expands on the vision of quality recreational activity by identifying numerous specific improvements that are to be provided in the planning areas as follows:

“Future Facilities:

  • Bartlett Campground: camping in this area will be restricted to this campground.
  • Lone Mesa Campground: camping in this area will be restricted to this campground.
  • Blue Hills Road OHV Trailhead.
  • Courthouse Rock Campground, camping in this area will be restricted to the campground.
  • Cowboy Camp Campground, camping in this area will be restricted to this campground.
  • White Wash Sand Dunes OHV Parking and Camping Area.
  • Gemini Bridges Parking Area and Trailhead.”[7]

None of these site-specific proposals are even mentioned in the range of alternatives of the Proposal.  The RMP clearly provides that expansion of routes in the SRMA is specifically a general goal of the designation as follows:

Focus Area — Motorized Backcountry Touring:

Gemini Bridges/Poison Spider Mesa Focus Area (16,299 acres) for multiple use, including full-size OHV, ATV, and motorcycle use with consideration given to managing routes suitable for each vehicle type. Travel will be intensively managed on designated routes only. Close the spur route to Gemini Bridges to facilitate public use and help restore damaged lands along the spur route. Construct a parking area near the bridges.[8]

Not only are there foundational problems with the general vision for the area and specific expansion commitments that were made during the RMP development, the various alternatives specifically conflict with commitments to keep specific routes open that were made during the development of the RMP. Closing key parts of the Seven Mile Rim trail also directly violates the Moab Field Office Resource Management Plan, which expressly mandates that it remain open as follows:

Mill Canyon/Upper Courthouse Mountain Biking Focus Area (5,744 acres) inclusive of areas within the Mill Canyon and upper Courthouse drainages with continued use of the Seven Mile Rim Jeep Safari route for motorized use, with non-motorized trailheads near the Mill Canyon Dinosaur Trail and the Halfway Stage Station. Manage the Mill Canyon Dinosaur Trail for hiking only (35 miles of road designated for motorized travel; 23 miles of route managed for mechanized use only).[9]

Despite the clarity regarding the Seven Mile Rim road’s future in areas that might have other management priorities, several of the alternatives proposed to close all or some of this route.  The impact that this type of decision making will have on public support in anything the Field Office (“FO”)does now or into the foreseeable future is significant and cannot be overlooked.

Not only is the “no new trails” starting point in direct conflict with the RMP for the area, it is in direct conflict with subsequent monitoring efforts for the area performed by the BLM.  In 2015 BLM prepared an evaluation of the current status of the RMP for the Moab FO.  This analysis of the existing RMP provisions admitted that visitation to the Moab FO was significantly increasing creating a compelling need for new trails as follows:

2.8. Recreation and Travel Management

Visitation has increased dramatically – especially motorized use – in the Moab Field Office since the RMP was completed in 2008. To address the increased pressure on existing areas, travel management and resource protection measures are being implemented at an enhanced rate, when staffing allows. Construction of recreation facilities such as campgrounds, trailheads and trails are a priority.”[10]

Trail building was identified as a priority for the area in the 2015 assessment of the management situation. The assessment recommended speeding expansion of all forms of recreational access to the Moab FO.   This recommendation with the Proposal position that the starting point of analysis is “no new trails,” and this significant change in direction and vision for the area is simply never addressed.

The draft Propoal’s vision for analyzing this area differs sharply from the RMP’s controlling vision that recognized recreational usage as a purpose and need for every route.  By ignoring the mandatory 2015 FO Evaluation, the draft Proposal essentially undermines it.  Furthermore, there is no explanation of how any of the Alternatives will comply with the RMP’s goals and objectives of managing the area for all types of usages.  The RMP and 2017 SA specifically allow new routes to be created. A decision not to allow such will come off as unfounded and frankly arbitrary, especially since the RMP mandated periodic evaluation of the area clearly identifies trail building as a priority for the entire field office.

8(b). Visitation and recreational resource capacity assumptions provided in the Proposal are illogical and not factually supported.

There can be no argument that the visitation to Moab FO has skyrocketed in the past decade and much of this has resulted from strong tourism efforts from the local community.  BLM has recognized this significant spike in recreational visitation in other planning efforts, such as the recent slack lining EA issued by the Moab FO in 2020.  The huge increase in visitation is outlined in the slack lining EA by the BLM as follows:

In the past decade, tourism in the Moab Field Office has increased over 58%; in 2019, the Field Office hosted 1.9 million visitors, and over 3 million visitor days. During the same period, visitation increased by over 72% in nearby Canyonlands National Park.[11]

The large increase in visitation to the area has been noted by other DOI managers in planning efforts as well. The National Park Service offices for Arches National Parks have also identified this catastrophic increase in visitation as follows: [12]

Arches NP 2021

 

By comparison the Park Service estimated that visitation to Arches NP in 2011 as follows:[13]

Arches NP 2011

These Park Service data efforts conclude that visitation to the Arches National Park has doubled in the last 10 years, and this would be consistent with planning documents throughout the area. We have no reason to anticipate that visitation to the planning area has not increased at a similarly high level.  Rather than recognize the unexpected increase in visitation to the area, the Proposal never mentions this challenge or how it may impact the Proposal moving forward. This situation creates another foundational problem for the Proposal and the decision to prohibit new routes in the planning area, as we are unable to understand how quality trail experiences can be provided by a trail network that has been reduced by 40% of total mileage and usage has doubled.  This position is outlined in the Proposal as follows:

    1. Reducing network mileage within the TMA is not anticipated to result in a reduction in OHV use overall. Year-round OHV and non-motorized recreation use is expected to continue to increase slightly in and around the TMA regardless of the designations made as a result of this travel planning effort.
    1. Concentration of use as a result of OHV-Closed designations is not anticipated as an issue in this TMA. This conclusion was reached by the BLM IDT and applies for archaeology, wildlife, and other resources. Many of the routes proposed for OHV-Closed designations in the alternative networks are very lightly used, and therefore would not result in any appreciable concentration of use on the remaining open routes.[14]

 

Characterizing as “slightly increasing” a demonstrated two-fold increase in visitation to the area is unfounded.  It fails as the kind of proper analysis of this issue that NEPA requires in the Proposal.  NEPA requires high-quality information to support the decision-making process..  Commenting regarding this type of assumption and dearth of supporting data is impossible.  It renders a decision-making process that NEPA sought to avoid.

8(c).  Quality recreational access that is mandated in the RMP objectives will be denied by closures of 40%.

The Proposal should recognize and address the fact that significant restrictions to the planning area have resulted from recent planning efforts. These are highly relevant to the continued decline in the quality of motorized opportunities in the planning area.  They directly undermine any assertion that there is excess capacity in the motorized route system sufficient to absorb significant increases in area visitation.  There has been a significant increase in dissatisfaction of motorized users since the 2008 restrictions, and this has also forced many motorized users to other areas, such as Grand Junction FO and GMUG in Colorado, in order to obtain quality dispersed recreational experiences.

The RMP summarizes the significant scale of closures as part of the RMP process completed in 2008 is as follows:

Summary Table A OHV Categores[15]

The impacts of these acres of closures are significant on the designated routes on the Moab FO which the FEIS generally summarized as follows:

Impacts on resources and user groups would be similar to Alternative B, except that the adverse impacts to motorized users would be reduced by limiting OHV travel to designated routes within 4,481,334 acres along with 3653 miles of Band D class routes.  123 miles of singletrack routes with 1866 acres open to cross country travel.[16]

The FEIS summarized the scope of these closures as follows:

This alternative has 339,298 acres closed to OHV use, which is approximately 67 times more than under Alternative A.[17]

An accurate summary of recreational opportunities on the Moab FO since 2008 would be there have been a 67 times expansion of acres closed in the area and more than 40% of routes have been closed.  Over the same time visitation to the area has at least doubled.  Given these factual conclusions, any assertion of a factual basis for the range of alternatives provided is unfounded and must be meaningfully addressed. Planning should address how this vision has impacted the ability to find recreational opportunities in the area and how the decision aligns with the Moab  RMP.

9(a).     NEPA mandates detailed statements of high quality information for all decisions made in the planning process.

Prior to addressing the Organizations’ more specific concerns on specific legal issues in the Proposal, the Organizations believe a brief review of NEPA requirements provided in regulation, various implementation guides and relevant court rulings is warranted to allow for comparison of analysis provided in the Proposal and the proper standard. The Organizations believe that the high levels of quality analysis that are required by these planning requirements frequently get lost in the planning process.  The lack of documenting the cause-and-effect relationship between management changes and impacts that will result, is a significant weakness in the Proposal.  This should be remedied in supplemental works to detail how impacts are related to changes and these subsequent planning efforts must be provided a full and complete public comment process.   Meaningfully analyzing this cause-and-effect relationship will result in significant changes to the preferred alternatives proposed in supplemental works.

At the landscape level of discussion, the NEPA regulations require any NEPA efforts to provide all information under the following standards:

… It shall provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment…. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses….[18]

The regulations included the development of the Council of Environmental Quality, which expands upon the detailed statement theory for planning purposes as follows:

You must describe the proposed action and alternatives considered, if any (40 CFR 1508.9(b)) (see sections 6.5, Proposed Action and 6.6, Alternative Development). Illustrations and maps can be used to help describe the proposed action and alternatives.[19]

These regulations clearly state the need for the quality information being provided as part of this relationship as follows:

The CEQ regulations require NEPA documents to be “concise, clear, and to the point” (40 CFR 1500.2(b), 1502.4). Analyses must “focus on significant environmental issues and alternatives” and be useful to the decision-maker and the public (40 CFR 1500.1). Discussions of impacts are to be proportionate to their significance (40 CFR 1502.2(b)).[20]

The Proposal fails to account for the fact visitation has doubled and fails to provide any additional opportunities for the increased usage. Not only does the Proposal adopt a “no new trails” posture from the beginning, the Proposal provides for no expansion, even parking or toilets.  No discussion exists in the Proposal as to why the closures are needed or why the specific standard is necessary. This full and fair discussion of many issues has not been provided in the Proposal and associated documents. As more specifically addressed in later sections of the comments, the range of alternatives for multiple use access to the Proposal is unacceptable. Many of the assumptions that are provided in the Proposal simply have no factual basis as outlined previously.

9(b).  NEPA is designed and intended to stimulate public involvement and scrutiny.

The association of impacts from changes proposed to the management issue, is a critical component for developing public comments and involvement, because frequently members of the public do not have sufficient time, resources or understanding to make these connections.   These concerns are summarized in the NEPA regulations which clearly provide the reason for the need for high quality information to be provided in the NEPA process.   NEPA regulations provide as follows:

(b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.[21]

The Proposal does not provide a scientific or expert basis for many of the factual assumptions and positions therein, making them indefensible as they conflict with factual statements in prior NEPA matters.

NEPA analysis is supposed to stimulate public involvement and comment as part of federal planning actions.  This is woven throughout the NEPA regulations and the agency implementation documents. For example, the BLM Planning manual states:

The CEQ regulations also require that agencies “make diligent efforts to involve the public in preparing and implementing their NEPA procedures” (40 CFR 1506.6(a)).[22]

Yet high quality information on numerous issues is missing in the Proposal, thus forcing the Organizations to theoretically address numerous issues despite their asserted priority and importance. This lack of high quality information frustrates the Organizations’ ability to meaningfully and completely comment on a variety of issues.  Given that the Organizations have actively participated in countless NEPA analyses across the country, we struggle to understand the Proposal.  Surely the overall public is negatively affected by poor quality data and analysis in the Proposal.

The Proposal does not address any new information developed since the litigation and 2008 RMP.  The Proposal often asserts it is in compliance with the RMP but fails to support these assertions with analysis. The Proposal does not identify what the many issues are.  Many users say they feel frustrated in reviewing the plan.  They say that despite hours of review they cannot understand or explain what the management issue is in a particular area or why a particular route is being closed.  The Proposal’s failure to provide such information makes it hard for any member of the public to comment thereon. Hence the frequent and vigorous opposition to the Proposal voiced by a wide range of user groups.

The Proposal’s overlooking numerous foundational documents and guidelines has improperly misdirected the range of alternatives.  Given the foundational nature of the overlooked documents, the Proposal should be withdrawn to allow these foundational documents to be completely and accurately included in the Proposal inception.

9(c).      NEPA requires that issues be addressed with high quality information and analysis.

Numerous issues have not been sufficiently analyzed to satisfy NEPA planning requirements.    Much of the Proposal is disorganized and merely summarizes national planning guidance documents.  Mere summaries of planning regulations will not satisfy NEPA requirements for a detailed statement of high quality information regarding why a decision was made.

The general standards for NEPA analysis  of issues  are as follows:

Agencies shall focus on significant environmental issues and alternatives and shall reduce paperwork and the accumulation of extraneous background data. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses. An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions.[23]

The US Supreme Court has applied these standards to conclude as follows:

Agency action is arbitrary and capricious if an agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,” or the agency action “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”[24]

 The Proposal does not meet the Supreme Court’s standard of review.  The Proposal disregards many factors Congress specifically identified for NEPA review and analysis, despite the availability of information necessary to do this.  The Proposal encompasses over 200 pages without any meaningful discussion of economic and travel management issues, both of which have received significant public input since scoping of the Proposal. Merely referencing the  BLM LUP handbook and asserting compliance therewith is facially unacceptable for any proposal.   NEPA requires a discussion of how the national standards were applied in the field office management decisions regarding specific areas, resource concerns and other field office specific management concerns.  That has not occurred for economic and travel related issues.

9(d).  NEPA requires a balance of uses and addressing of cumulative impacts.

As previously noted, NEPA requires a detailed statement of why a decision or alternative was chosen over other alternatives for resolving the challenge that is the basis of the NEPA analysis. The detailed statement is required on a wide range of topics, some of which often conflict.  But this does not absolve managers from making the analysis or forming the Proposal to avoid difficult factual questions or avoid discussions of the failures in the NEPA analysis.  One of NEPA’s fundamental goals is to:

promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.[25]

As more completely addressed later in these comments, the Organizations have serious concerns that the welfare of man, more specifically the economic welfare of man, has not been properly addressed in the planning process. The Organizations believe the Proposal falls well short of stimulating the welfare of the residents that live in the local communities.

NEPA further requires that cumulative impacts be taken into account as follows:

Cumulative impacts can result from individually minor but collectively significant actions.[26]

The Organizations believe these cumulative impacts can take many forms, including not only addressing cumulative impacts to the environment but also addressing the cumulative impacts of the decisions made on a site-specific basis as part of the landscape level planning process. A cumulative impact that is simply never addressed in the Proposal is the fact that the visitation has doubled in the last decade to the planning area.  In 2008, the RMP closed approximately 40% of the motorized routes in the area.  This Proposal has alternatives that propose to close another 40% of the routes in the planning area, despite requirements in the RMP to provide quality recreational experiences on the Moab FO, and numerous site-specific development requirements as well. Cumulative impacts of exclusions in the analysis of specific factors must also be properly addressed in order to ensure that recreational opportunities are provided into the future as well.   This has not occurred.  There are numerous conflicts between the Proposal and Federal Law and regulation that is sought to be applied.  An example is seen in applying  the NTSA to prohibit protected uses of the Old Spanish Trail in favor of grazing interests that might be in the area.  The cumulative impacts of these decisions have not been reviewed, which has resulted in conclusions being reached in the planning process that are in conflict with research from federal, state, and user group research.

9(e).  Relevant Court rulings addressing NEPA standards directly apply to the NEPA regulations.

A brief summary of the standards that are applied by Courts reviewing agency NEPA analysis is relevant to this discussion, as the Courts have consistently directly applied the NEPA regulations to agency proposals.  Relevant court rulings have concluded:

an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.[27]

Other courts have summarized this standard as follows:

[E]nsure that federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences, and [to] provide the public with information on the environmental impact of a proposed action and encourage public participation in the development of that information. [28]

As previously addressed, The Proposal has not stimulated public involvement, nor does the Proposal show that a hard look has not been performed.  The high levels of frustration expressed from the public in response to the release of the Proposal speaks to the quality of information provided and the ability of the public to comment on the information. Managers have not provided consistent information to the public regarding routes that are open and closed under each alternative. This portends serious difficulties for the agency in case of any court challenge.

10. The Proposal’s range of alternatives is unacceptably slanted, because many issues have not been sufficiently analyzed.

The lack of integration between expected recreational usage in the planning area and resources to be provided for that usage after implementation, is evidenced in the very limited range of alternatives that are provided in the Proposal.  The Proposal closes motorized routes to the public for recreational usage even under the most development intensive alternative.. As previously noted, the Proposal summarizes all resource management issues, such as air, water and soil health, as good to excellent currently, making a minimum closure under every alternative difficult to understand at best.

It is well established that NEPA regulations require planning to provide all information under the following standards:

… It shall provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment…. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses….[29]

The regulations included the development of the Council of Environmental Quality, which expands upon the detailed statement theory for planning purposes:

You must describe the proposed action and alternatives considered, if any (40 CFR 1508.9(b)) (see sections 6.5, Proposed Action and 6.6, Alternative Development). Illustrations and maps can be used to help describe the proposed action and alternatives.[30]

These regulations clearly state the need for the quality information being provided as part of this relationship as follows:

The CEQ regulations require NEPA documents to be “concise, clear, and to the point” (40 CFR 1500.2(b), 1502.4). Analyses must “focus on significant environmental issues and alternatives” and be useful to the decision-maker and the public (40 CFR 1500.1). Discussions of impacts are to be proportionate to their significance (40 CFR 1502.2(b)).[31]

A reasonable range of alternatives has not been provided here. The Proposals failure to tie proposed changes to numerous basic assumptions, (such as the assertion that there is no need for more trail) has resulted in the public not being adequately informed about many viable options for management. These analysis flaws have resulted in a range of alternatives that bears no rational relationship to the planned recreational usage or local community benefits from that usage.  Ditto as to possible impacts to these communities from usage changes.

Providing an accurate and reasonable range of alternatives to the public as part of the NEPA process is a critical component of the NEPA process.  The rational decision-making process of NEPA is compromised when agencies consider only a limited range of alternatives to their proposed projects.[32]  When reviewing ranges of alternatives provided in a NEPA analysis, the Courts have consistently held:

The alternative section is ‘the heart of the environmental impact statement,40 C.F.R. 1502.14; hence, ‘[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.[33]

When determining if a NEPA effort has provided a satisfactory range of Alternatives, Courts have held the proper standard of comparison is to compare the purpose and intent of the NEPA effort to the Range of alternatives provided.  Other Courts have summarized this legal requirement as follows:

Irreparable damage may in the context of an action to enforce NEPA be implied from the failure by responsible authorities to evaluate fully the environmental impact of the proposed project, and consider alternative proposals before engaging in a project which constitutes major federal action.[34]

Given the numerous documents created by the Moab FO clearly providing a contrary direction for the management areas and guidelines that have been overlooked in the creation of the Proposal, the Organizations believe these failures have caused a range of alternatives to be presented that are significantly different from the range of alternatives that would have been presented if many priority concerns had been accurately addressed when the original vision for the Proposal was created. Given the foundational nature of these documents, the travel management portion of the plan should be withdrawn to allow for complete and accurate inclusion of these foundational documents in the creation of the Proposal.

11(a).   The economic analysis provided with the Proposal is incorrect on its face.

NEPA analysis also requires a meaningful review of the possible economic impacts to local communities from the Proposal. Prior to addressing more specific NEPA related concerns involved in the Proposal, a brief summary of the inherent complexity of any economic analysis is warranted.   Economic contribution calculations are often complex and involve a balance of numerous factors that directly impact the spending habits of those sought to be studied, and often involve far more analysis and discussion than planning for endangered species.  The basic complexity of any economic determinations and the size of the calculations to be made are summarized by the Western Governors’ Associations’ recreational economic contributions study as follows:

How is “economic impact” calculated? Many people might think of a consumer buying equipment – a tent, fishing pole, ATV, bicycle, boat, snowboard or rifle. However, the impact is much more complex than the manufacture and sale of gear and vehicles. Gas stations, restaurants, hotels, river guides and ski resorts benefit from outdoor recreation. In total, equipment and travel expenditures represent billions in direct sales that create jobs, income, tax revenues and other economic benefits.[35]

The complexity of the calculations undertaken for economic impact calculations is immediately evidenced by the number of pages required in most economic impact reports, as the explanation of the analysis process used to arrive at any final figure of any economic contribution analysis is often as valuable as the total economic contribution that is reached.

The basic mandate to include documented economic analysis early in the interdisciplinary team process for public lands planning is provided by the Federal Lands Planning and Management Act (“FLPMA”).  FLPMA specifies the various criteria that must be incorporated at specific times in the development of a land use plan as follows:

(c) In the development and revision of land use plans, the Secretary shall–

(2) use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences;[36]

The basic mandate of FLPMA regarding the critical need for documented economic analysis is more specifically and extensively addressed in Appendix D of the BLM’s Land Use Planning Handbook. Appendix D opens as follows:

“A. The Planning Process

To be effective, social scientific data and methods should be integrated into the entire planning process, from preparing the pre-plan to implementation and monitoring. The main social science activities for the various planning steps are outlined in Table D-1.

Table D-1. —Social science activities in land use planning

Planning steps

Social science activities
Steps 1 & 2—Identify Issues and Develop Planning Criteria ▪ Identify publics and strategies to reach them

▪ Identify social and economic issues

Identify social and economic planning criteria

Step 3—Inventory Data ▪ Identify inventory methods

Collect necessary social and economic data

Steps 4—Analyze Management Situation Conduct social and economic assessment, including existing conditions and trends and the impacts of continuing current management

Document assessment methods in an appendix or technical supplement

Step 5—Formulate Alternatives Identify social and economic opportunities and constraints to help formulate alternatives
Step 6—Estimate Effects of Alternatives ▪ Identify analysis methods

Analyze the social and economic effects of the alternatives

Document impact analysis methods in an appendix or technical supplement

▪ Assess mitigation opportunities to enhance alternatives’ positive effects and minimize their negative effects

Steps 7 & 8—Identify Preferred Alternative and Finalize Plan Identify potential social and economic factors to help select the preferred alternative
Step 9—Monitor and Evaluate Track social and economic indicators[37]

Tellingly, economic concerns are the only factor addressed by the BLM planning handbook for every step of the planning process. Documentation of economic forecasts and analysis methodology is required in two separate stages before release of draft alternatives. The required documentation of these concerns is exactly the information the Organizations are seeking to review but are unable to review. This lack of analysis of economic concerns has become even more apparent in the Organizations’ attempt to analyze economic concerns given the scope of inconsistency of the Proposal findings with the research works of any other federal, state, local, or user groups.

As a result of the facial inconsistencies between Proposal conclusions and all other available economic research, the Organizations sought to review the documentation on the process used to analyze economics, such as testing protocols, reviews of outside research materials, sampling of user groups and other factors involved in economic analysis. This documentation is specifically required to be developed in Step 4, 5, and 6 of the process identified in the Handbook.   This information is not provided or mentioned at all in the Proposal.

The Proposal fails to meaningfully address possible economic impacts of the Proposal, as basic foundational analysis points. Comparative spending profiles and estimates for visitation to the area are patently incorrect.  The Spending profile for recreational users provided by the Proposal is incorrect simply in that it asserts all recreational users spend similar amounts recreating in the area.  The Proposal identifies this cornerstone of analysis as follows:

Spending profiles for OHV visitors are similar to the overall spending profiles that the Moab BLM has developed for all recreation visitation to Moab BLM.[38]

Not a single study supports this assertion as far as the Organizations are aware.  All research known to us concludes that motorized users spend sometimes as much as 5 times more than other recreational users. Many recreational users rent equipment in Moab, these rental fees average at least $300 per unit per day, and many people rent multiple units. On top of that, taxes for rental vehicles in Moab are 15-19%, while taxes for rental non-motorized gear are under 9%.

A brief analysis of relevant court rulings on the quality and accuracy of economic analysis NEPA is helpful, as these standards are the benchmark for comparison.   The Courts have held:

an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.[39]

The Court then discussed the significance of economic analysis in planning as follows:

Misleading economic assumptions can defeat the first function of an EIS by impairing the agency’s consideration of the adverse environmental effects of a proposed project. SeeSouth La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011-12 (5th Cir.1980). NEPA requires agencies to balance a project’s economic benefits against its adverse environmental effects. Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1113 (D.C.Cir.1971). The use of inflated economic benefits in this balancing process may result in approval of a project that otherwise would not have been approved because of its adverse environmental effects. Similarly, misleading economic assumptions can also defeat the second function of an EIS by skewing the public’s evaluation of a project.[40]

The Court in the Hughes River decision invalidated an EIS based on an error in economic contribution calculations of approximately 32%. The current Proposal contains an error in economic calculations that is more than twice the 32% found sufficient in Hughes River to overturn the EIS in that matter.

11(b)(1). The US Department of Commerce has repeatedly and specifically concluded that recreational economics are driven by motorized spending.

The availability of high-quality economic contribution data for recreational activities has recently been greatly expanded as the Department of Commerce has undertaken a 5-year state by state analysis of recreational spending that ended in 2021. Department of Commerce research commissioned by Secretary of Interior Sally Jewel to determine the value of outdoor recreation as part of the Gross Domestic Product was released. The research identified that outdoor recreation accounted for 2% of the GDP or more than $371 Billion in spending annually and that this value was steadily increasing from 2012 to 2016.  This research further concludes that motorized spending was the dominant portion of spending for recreational activity, and almost exceeded all other spending sources combined. This research provides the following breakdown of the total recreational spending: [41]

Gross Output for Selected Conventional Oudoor Recreation Activties 2016

The above chart from the Department of Commerce study indicates that motorized spending is occurring at a rate 6 times higher than all other recreational activities.  The Proposal’s patent conflict with this conclusion is highly problematic.

At the conclusion of the Department of Commerce research period, they provided spending conclusions for numerous different user groups for the 8-year period that they were able to research.  These conclusions are as follows:[42]

 

Table 1 Real Outdoor Recreation Value Added by Activity 2012

 

These motorized travel related economic conclusions show even more problems for the Proposal at the landscape level, as indications are that OHV and Motorized camping outspend all other possible recreational activities in the planning area, combined. OHV recreation alone comprised almost 3 times more spending than the hiking and tent camping category and almost 2 times the cycling category. This disparity only increased when RV camping was included in the analysis.

Given this clear and unequivocal demonstration of values to communities from motorized recreational uses, it is not reasonably arguable that the Proposal sufficiently analyzes these points.  These failures of analysis are even more immediate when compared to the high-quality peer-reviewed analysis of the economic benefits from motorized recreation.

11(b)(2).The Western Governors’ Association recently concluded that recreational spending is the driver for western economies.

Recreational usage of public lands is a significant portion of the Moab economy, especially in the smaller mountain communities that have already lost more traditional sources of revenue, such as timber, farming and mining. This is only more compounded by the fact that Moab has marketed itself as a global destination for recreation for decades. The critical nature of recreational economics to the western economies was recently highlighted in the Western Governors’ Association Get Out West report that specifically stated:

Spending on outdoor recreation is a vital part of the national and western economies.  It means jobs and incomes and can be the lifeblood of many rural communities in the West.  This snapshot helps highlight the value of this often-overlooked sector- one that is not otherwise measured as a traditional pillar of the US economy.[43]

Contrary to the huge value of recreational activity that has been identified by the Western Governors’ Association, recreational economics are only briefly addressed in a couple pages of the Proposal without analysis of what inputs were relied upon for development of these calculations. Given the limited analysis of economics, the Organizations are forced to analyze this issue on a very general level and believe that this analysis simply is not the detailed statement addressing high quality information that is needed for NEPA purposes.

The Western Governor’s Association provides a compelling summary of the value of the recreational activity for western states as follows:[44]

 

An Overlooked Economic Giant Annual Spending

 

11(b)(3). Proper integration of economic information in the planning process is an ongoing requirement in federal land management planning.

The proper integration of accurate economic information is often a weakness of the public lands planning process, which has resulted in the creation of many other longer-term problems when decisions reflecting an imbalance of multiple uses are implemented.  This concern was recently identified as a major planning issue that is not just limited to Utah.  The Western Governors’ Association released its Get Out West report in conjunction with its economic impact study of recreation on public lands in the Western United States which specifically identified that proper valuation is a significant management concern as follows:

Several managers stated that one of the biggest challenges they face is “the undervaluation of outdoor recreation” relative to other land uses.[45]

The Get Out West report from the Western Governors’ Association also highlighted how critical proper valuation of recreation is to the development of good management plans based on multiple use principals.  The Get Out West report specifically found:

Good planning not only results in better recreation opportunities, it also helps address and avoid major management challenges – such as limited funding, changing recreation types, user conflicts, and degradation of the assets. Managers with the most successfully managed recreation assets emphasized that they planned early and often. They assessed their opportunities and constraints, prioritized their assets, and defined visions.[46]

The Organizations believe our concerns regarding the Proposal and those expressed in the Western Governors’ Get Out West report virtually mirror each other. There can simply be no factual argument made that recreation has not been significantly undervalued in the Proposal and this has directed the range of alternatives provided for multiple use recreation on the Proposal.  The Proposal should examine potential direct and indirect impacts of each alternative on the undisputed value of multiple use outdoor motorized recreation, if only to reflect the analysis provided by Western Governors Association. NEPA requires comparing the values of each use.  That comparative analysis is missing in the Proposal.

11(c).US Forest Service National Visitor Use Monitoring spending profiles for recreation show a huge amount of diversity in spending profiles across user groups.

The Proposal asserts without basis that all recreational users have similar spending profiles..  This conclusion is incorrect as best available science clearly concludes that motorized users, who make up the heaviest impacted user group from the Proposal, are also the highest spending group of users who use business and economic opportunities provided in the Proposal area.

Contrary to the assertion in the Proposal, as part of the USFS efforts in the Visitor Use Monitoring efforts, the US Forest Service has provided hugely detailed analysis of the diversity of spending profiles of users as follows:[47]

 

Table 3 Visitor spending

 

The USFS research further concludes that the type and nature of visitation can hugely impact the spending profiles of the recreational community:

Within activities and trip types, the greatest observed spending was for non-local downhill skiers on overnight trips ($893). The lowest observed spending was for locals hiking or biking on day trips ($18)[48]

Given that the USFS has clearly identified that motorized users consistently spend more than twice what similar users spend, the conclusions of the Proposal are problematic both factually and legally.  This simply must be corrected as this clearly identified the arbitrary nature of this assertion.

11(d).Non-Motorized recreation is not synonymous with entirely non-motorized area management.

The Organizations have provided detailed information regarding the significant imbalance of recreational spending when motorized vs. non-motorized activities are compared. Too often we have been told that non-motorized spending and non-motorized recreation are identical spending profiles and that non-motorized spends as much or more than motorized.  Highly credible sources such as BEA and WGA and others have concluded very differently on this issue.  Often the implications of this are lost if high quality economic analysis is not performed.  As a result, negative economic impacts to communities from proposed OHV travel restrictions, are grossly underestimated.

It is encouraging to see that some economic analysis has started to recognize the huge role that motorized access provides even in non-motorized recreational activities.  An example of this recognition is as follows:

“Quiet recreation” is recreation that does not involve significant motorized activity (such as motor-boating, snowmobiling, motorcycling, other off-highway-vehicle use, etc.)—aside from any transportation to and from the recreation sites. In this analysis, we estimate the number of “quiet recreation visits,” which are trips (of any length) to BLM lands managed by the CCFO in southwest Utah for the primary purpose of engaging in quiet recreation activities.[49]

The implications of this easily missed limitation on the study and travel planning are clear.  When areas are closed to motorized access, they are often closed to all recreational activity.   The implications of this are significant and often overlooked.  The Proposal’s planning area has an active drift boat/kayak/canoe community on the Green River. While these may be non-motorized pursuits, they are heavily impacted by motorized access as these units are brought to the area either on trailers or via car top carriers.  Removing motor vehicle access to portions of the river would result in people having to use other means to portage boats for access.  This would mean horse teams pulling the drift boat trailers or people carrying canoes and kayaks for long distances to access the river. Neither of these are occurring in the area and we have never heard of this type of access being chosen in any scale in other locations either. Functionally loss of motorized routes will impede these non-motorized activities significantly.  While this example may seem forced, it exhibits our concern. Closing 40% of the planning area to motorized access will impact motorized and non-motorized uses in the area and this impact will be substantial. This further undermines the conclusion that the closures will not negatively impact all aspects of the economy in the area.

Motorized access to portions of the river allows many users to shorten trips who do not have multiple days to float the entire section of river.  Cutting off such motorized access, entirely cuts out those potential visitations and the economic benefits they bring.  This is one of many examples of how closing 40% of the planning area to motorized access will significantly impact motorized and non-motorized uses in the area, and it undercuts the Proposal’s bare assertions that there will be no impacts from the proposed closures to economic benefits in the area.

11(e).The Proposal’s estimates of impacts From visitation changes are without basis.

The Proposal asserts that only 7,348 visitor days would be lost if 40% of routes were closed, but it provides no basis for this conclusion.[50]  The bare assertion that closing 40% of routes would reduce daily visitation by only 20 people, defies explanation.  No basis is given for this estimate.  Did this come from trail counters? Volunteers at trailheads, fly-overs, voluntary reporting? These are critical questions to the analysis and each of them provide their own unique set of questions for application of any results. Failures of basic information such as this are identified as a primary problem in the Western Governors’ Association report previously addressed in our comments concerning the camping proposal. Lack of visitation data plagued that proposal as well.  The Proposal’s apparent failure to attempt to capture accurate visitation data is problematic.

12(a). Routes designated under the National Trails System Act remain multiple use areas.

Almost every statutory provision that was applied in the Proposal was done so incorrectly. This includes but is not limited to the National Trails System Act, Wild and Scenic Rivers Act, and requirements of the application of best available science in the planning effort.

One leg of the Old Spanish Trail, which was designated as a National Historic Trail in 2002, is in the Proposal’s planning area.   While there was not significant conflict around these Congressionally designated routes at the time they were designated, conflicts have since arisen as some users have attempted to twist the nature of the designations for these routes. We have been active participants in the winter travel planning on the multiple forests in California and are intimately aware of the conflict around management of these areas in the winter travel planning process. We are intimately aware of the conflict that would result in summer planning with an application of similar management goals, and we would like to avoid this conflict.

See the 2020 US Supreme Court ruling clarifying the management relationship of lands that are managed under multiple use mandates by the USFS/BLM and also designated as a National Trail System Route, such as the Pacific Crest Trail and Old Spanish Trail. In US Forest Service vs. Cowpasture River Preservation Association[51], the US Supreme Court addressed the management relationship of the National Trails System Act and the Multiple Use mandate of the US Forest Service for the corridors around NTSA routes and the designated trail itself.  This is precedential and instructive for the BLM multiple use mandate as well.    The Supreme Court clearly stated the mere designation of any route under the National Trails System Act does not alter the multiple use mandate of the agencies managing this land. Economic impacts of excluding multiple uses from these areas was a major concern in these discussions.

The High Court also clearly found that the use of the right of way concept was not intended to alter the multiple use mandate but rather was a limited transfer of management authority between the Acts.  The Court clearly stated if Congress had the desire to remove the multiple use mandates from these routes, Congress clearly could have.  The Court compared the retained multiple use mandate of the National Trails System Act to the Congressional decisions to remove Wild and Scenic Rivers from the Multiple Use mandates for areas designated. The Court ruling provides significant protection for continued multiple use access to public lands and prohibits many of the proposed closures of the trail and adjacent areas to multiple usage recreation. Many of the organizations which have been seeking these exclusionary corridors in the winter travel plans on the Forest made these same arguments to the Supreme Court.  The Court ruled against applying these concepts, which are discussed in detail in the dissenting opinion that only garnered 2 votes, leaving little room for continued application or analysis of these positions in planning.

12(b). Congressional actions have identified motorized usage as a characteristic of an NTSA route and areas adjacent to them.

It is incorrect to say that motorized usage is inconsistent with the NTSA designation and degrades the quality of the route.  That assertion is factually as well as legally inaccurate as motorized usages are a characteristic of all NTSA routes that have been designated.  The use of motorized vehicles is specifically identified as characteristics of the NTSA and also protected by US Supreme Court decisions as these areas remain managed for multiple uses. The Proposal is taking an untenable position on this issue that is directly in conflict with the position argued by land managers in front of the Supreme Court a few years ago.

The following represents an example of the numerous erroneous statements of applicable law that plague the analysis of this issue.  The Proposal starts its outline of the negative impacts of motorized usages on other users’ vicarious experiences as follows:

OHV use on routes crossing or in proximity to the Old Spanish NHT increases the potential for damage to the trail’s historic integrity and increases the potential for disruption of travelers’ vicarious experiences along the trail.[52]

It is difficult to understand what a “vicarious experience” is on an NTSA route as motorized usages are actually protected, not mere perceived usages of the trail.  A concept like “vicarious experience” is difficult to define in relation to an NTSA route, especially a historic route.  The Organizations do not understand how a vicarious experience would be measured and improved as a tool of management as this type of measure would be comically subjective and removed from actual conditions on the ground.

The Proposal then continues discussion of the negative impacts of motorized usage conflicting with the trail’s purpose and integrity as follows:

Of the evaluated routes proximate to the Old Spanish NHT, Alternative B would designate 89.5 miles for OHV use, a 21% reduction from Alternative A. The effects noted above to the trail’s purpose and integrity would continue to occur on those routes designated OHV-Open or OHV-Limited. Overall, the potential for OHV-related impacts to the Old Spanish NHT under Alternative B would be the lowest of any alternative.[53]

Given that the understanding of the historic nature of the route is the purpose and integrity of the history of the area is the Congressionally identified purpose and need for the designation, the Organizations do not understand how motorized access to areas would be perceived as a barrier to this goal. Furthermore, the fact is that motorized usage is a Congressionally identified characteristic of the NTSA routes. The Proposal thus improperly elevates characteristics that are not protected in the NTSA designation, above usages that are protected by the NTSA.  The Proposal outlines this decision as follows:

Accumulating impacts to the Old Spanish NHT include loss of integrity from human activity on and around the trail as well as disruption of travelers’ experiences from human activity or livestock grazing in the trail’s vicinity.[54]

What this type of a statement even means in management analysis, defies understanding. Moreover, an analysis as livestock grazing is clearly not a characteristic of any NTSA route designation.  While grazing is often done in conjunction with a wide range of recreational activities without significant conflict, and may be an authorized multiple usage of areas adjacent to the Trail,  that still does not justify diminishing a protected characteristic of an NTSA route in favor of a usage that is not protected in the NTSA.

The Proposal over-analyzes, without cause, motorized usage on and around the Old Spanish trail, as motorized usage is a specific characteristic of NTSA designated routes identified by Congress.  In addition to the US Supreme Court clearly stating multiple use principles controlled NTSA routes and areas, Congress clarified the usages of NTSA designated routes by directly stating motorized usages in all forms were permitted by adding 16 USC 1246 (j).  This provision states:

Types of trail use allowed Potential trail uses allowed on designated components of the national trails system may include but are not limited to…the following: snowmobiling, …Vehicles which may be permitted on certain trails may include motorcycles, bicycles, four-wheel drive or all-terrain off-road vehicles.

These provisions are clear and prohibit the concept of a non-motorized corridor around any national trail system route simply due to the designation.  In several locations in the NTSA, proper recognition of multiple usage of a National Trail is specifically and clearly identified and motorized usages of the trail corridor were clearly identified as acceptable.  The 1983 amendments to the NTSA provides as follows:

j)Types of trail use allowed. Potential trail uses allowed on designated components of the national trails system may include, but are not limited to, the following: bicycling, cross-country skiing, day hiking, equestrian activities, jogging or similar fitness activities, trail biking, overnight and long-distance backpacking, snowmobiling, and surface water and underwater activities. Vehicles which may be permitted on certain trails may include, but need not be limited to, motorcycles, bicycles, four-wheel drive or all-terrain off-road vehicles. In addition, trail access for handicapped individuals may be provided. The provisions of this subsection shall not supersede any other provisions of this chapter or other Federal laws, or any State or local laws.[55]

Congressional actions have consistently identified the desire to provide a multiple use experience on any route that is designated under the National Trails System Act. The Proposal should avoid the conflict and fighting that has become far too common around NTSA designated routes. Legislative declarations on these designations specifically allow motorized usage on these routes as often these routes are collocated with major highways, or other existing motorized infrastructure.  In addition to the Legislative clarity, the US Supreme Court has also overwhelmingly stated that these routes and areas remain multiple use areas even after the Congressional designation of the route.

A National historic trail is also the least restrictive designation for a route under the NTSA, which is specifically identified in the Act as follows:

(3) National historic trails, established as provided in section 1244 of this title, which will be extended trails which follow as closely as possible and practicable the original trails or routes of travel of national historical significance. Designation of such trails or routes shall be continuous, but the established or developed trail, and the acquisition thereof, need not be continuous onsite. National historic trails shall have as their purpose the identification and protection of the historic route and its historic remnants and artifacts for public use and enjoyment. Only those selected land and water based components of an historic trail which are on federally owned lands and which meet the national historic trail criteria established in this chapter are included as Federal protection components of a national historic trail. The appropriate Secretary may certify other lands as protected segments of an historic trail upon application from State or local governmental agencies or private interests involved if such segments meet the national historic trail criteria established in this chapter and such criteria supplementary thereto as the appropriate Secretary may prescribe, and are administered by such agencies or interests without expense to the United States.[56]

Congress has clearly identified that the basis for designation and management of National historic Trails is the historic activities that have occurred on and around these routes.  The Organizations must question how any specific recreational experience could be derived from this designation. Congress has further clarified that recreational interests alone are insufficient to justify this type of designation as follows:

..the presence of recreation potential not related to historic appreciation is not sufficient justification for designation under this category.[57]

The goal is to educate the public. Given the explicit clarity of the National Trails System Act that motorized usage is a characteristic of these routes to be protected and preserved in areas where appropriate, the Organizations must question why any analysis of usage on the route and areas adjacent was even undertaken.

12(c). BLM guidance materials for the Old Spanish Trail specifically allow motorized usage.

Again, the fact that motorized usage is a characteristic of the NTSA designation, precludes the exclusion of the usage in the planning process, as is currently proposed in the Plan.  The usage of motorized vehicles on and around the Old Spanish Trail is also specifically addressed in the Guidance materials that have been developed by BLM and US Park Service. The multiple use nature of the Old Spanish Trail is specifically addressed in the BLM final Guidance material for management of the Old Spanish Trail as follows:

Motorized vehicle recreation (two-wheel and single-track, as well as four-wheel) is widely enjoyed in the region crossed by the trail. Where appropriate, trail administrators will promote and support motorized vehicle use only on designated travel routes on public lands or on segments of routes on nonfederal lands that are designed, managed, and maintained for such uses. Motorized vehicle use on historic route alignments will be discouraged.[58]

This internal guidance document further specifically recognizes the application of section 7(j) of the NTSA as follows:

Further, Section 7(j) of the National Trails System Act states that potential trail uses may “include, but are not limited to, the following: bicycling, cross-country skiing, day hiking, equestrian activities, jogging or similar fitness activities, trail biking, overnight and long-distance backpacking, snowmobiling, and surface water and underwater activities. Vehicles that may be permitted on certain trails may include, but need not be limited to, motorcycles, bicycles, and four-wheel-drive or all-terrain off-road vehicles. In addition, trail access for handicapped individuals may be provided. The provisions of this subsection shall not supersede any other provisions of this Act or other federal laws, or any state or local laws.[59]

As motorized usage is a characteristic of any NTSA routes, the Proposal’s large amount of analysis of possible impacts to certain trail usages that could occur from multiple uses occurring in these areas, is inexplicable. The Organizations oppose the analysis of usages based on the corridor concept, as characteristics of the trail are to be protected and preserved according to multiple use mandates based on recent Supreme Court rulings. While Alternative D may be the least objectionable in this regard, the Organizations object to any exclusionary corridors for motorized usage in the Proposal as this concept conflicts with Statute, relevant case law from the US Supreme Court, and BLM guidance on the issue.

12(d). A characteristic of any area cannot reasonably be seen as a value that negatively impacts the area.

The Organizations are very concerned that NTSA discussions have become overly narrow in scope as a result of exceptionally poor implementation efforts and have become far too focused on recreational uses of these areas. There are hundreds of multiple uses of areas in and around an NTSA route that are not identified as a characteristic of the NTSA.  These would include energy development facilities, energy transmission facilities, grazing, mineral extraction, timber to name a few.  Are these uses that might be restricted in the vicinity of an NTSA route?  Possibly as these uses are not characteristics of the area or Congressional designation. The Organizations could clearly see the development of an extractive surface mine for minerals negatively impacting almost every characteristic sought to be preserved and protected by the NTSA.  Motorized usage of any NTSA route should not be restricted based merely on the designation of the route under the NTSA, as motorized usage is a Congressionally and Supreme Court protected characteristic of the designation.  Given this conflict the Organizations are unable to support even Alternative D as a result of the direct conflict of the alternative and relevant statutes and interpretations.

13. The Proposal makes no effort to correct its potential pre-decisional impacts on the camping analysis that is ongoing.

The Proposal threatens to have pre-decisional impacts on concurrent efforts to address dispersed camping in the planning area. The concern is not around the objection process occurring before the final decision is made, but rather with the more general definition of pre-decisional where decisions are made before any analysis is provided. This would reverse the entire NEPA process on both efforts as NEPA would not be used to guide the decisions to be made but rather would be justifying decisions that have already been made. The CFR specifically addresses this situation as follows:

An agency should commence preparation of an environmental impact statement as close as practicable to the time the agency is developing or receives a proposal so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal. The statement shall be prepared early enough so that it can serve as an important practical contribution to the decision-making process and will not be used to rationalize or justify decisions already made[60]

The pre-decisional nature of this situation calls into question the accuracy of foundational assumptions and assertions in this Proposal and the Camping Proposal.[61] What the office has created by pursuing independent planning efforts, which provide no guidance whatsoever on how each of the decision making processes will be integrated with the other, is a process where both dispersed camping can be closed as there is no access to the route and routes can be closed as there is no legal access to the dispersed site. Under this model, there is unduly broad discretion to close routes and no requirements to discuss or justify any of this decision-making process via NEPA.

The scale of this problem cannot be overstated as 7 of the first 10 routes listed in the route inventory in this Proposal are involving camping access. A sampling of additional route-specific analysis indicates a continued strong relationship of these factors to each other in the entire process of this effort. The Organizations are also very concerned regarding the pre-decisional nature of any camping-based decisions as these decisions would also remove the need for the route that was accessing the area without meaningful analysis of other resources that might be accessed by that route. In the camping plan these routes are identified as “damage points” in the analysis.[62] Access issues for camping in the area must be addressed as this is a critical component of the recreational experience the areas are required to provide pursuant to the RMP.

14. Best available science requirements are not supported by references to generalized surveys of research.

The Organizations strongly dispute claims of impacts to wildlife resulting from OHV usage in the Proposal.    The problematic nature of surveys for specific species is compounded by the fact that several of the species do not occur in the planning area. A survey is merely a survey of possible resources for any management issue; it is not the best available science that management should be based upon.  This is exemplified by the following discussion provided in the Proposal.  The Proposal’s prejudice is shown by its reference to the Ouren survey.

Direct mortality can result from accidental collisions with OHVs, intentional and illegal poaching of special status wildlife, or the inadvertent destruction of eggs, nests, and burrows by unwitting individuals. Injury can result from animal- vehicle collisions or animal exposure to OHV effects such as the inner-ear bleeding found to occur in small mammals exposed to OHV-generated noise (Ouren et al. 2007). Additionally, roadside use, whether by foot, camping, roadside parking, passing, staging, or other means, can lead to the alteration of animal behavior or alteration or destruction of foraging, burrowing, or nesting habitats.[63]

Again, a survey is not authoritative best science but rather is a survey of research, nothing more.  When this assertion is pursued deeper, the Ouren Survey cited 11 times in the Proposal references back to a 1980 Survey conducted by Andrews.  The 1980 Andrews survey is prefaced on almost every website where it’s found with the following warning: [64].

Historic Archive Document

Given this warning, it is questionable how the 1980 Andrews survey could be relevant enough to gain mention in 2017.  This concern continues to expand as it is now 2022.  Given this clear statement that the document is not best available science, the Proposal should not rely on this document in any manner for any reason.   Generally speaking, the Proposal’s use of surveys referencing earlier surveys compound the lack of confidence in the Proposal itself.  The Proposal should not rest on mere editorial content, but rather on science, best available science.   Clearly this survey is not that.

Concerns over lack of best available science are buttressed by the fact that the documentation the Proposal does cite actually does not support the Proposal. The 1980 survey relied upon by Ouren  outlines this issue as follows:

Dr. Bayard Brattstrom and Michael Bondello of California State University, Fullerton, have recently undertaken studies on the effects of vehicle noise on three species of vertebrates….. Desert kangaroo rats are deafened by 500 seconds of intermittent dune buggy sounds and then can be approached and eaten by the snakes. The rats show recovery of hearing sensitivity after 21 days.[65]

In other words, the 1980 itself work clearly states these findings are preliminary.  The work was never peer reviewed or published as far as we can determine.  So not only is the Ouren survey inappropriate to rely on as best available science, it is also inaccurate on this issue.

15. The Proposal should recognize that the State of Utah is increasing its support of trail work, education, and law enforcement in the planning area.

The motorized community is the only community that can bring significant resources to the Moab FO to assist with management and maintenance of routes for the benefit of all users. The Utah OHV Program has made significant strides in the development of their partner program to provide funding for OHV management. This program currently provides several million dollars for summer maintenance and this would be a program we would expect to significantly grow over the life of the RMP. This significant direct funding probably makes the motorized trail network the most sustainable in the planning area and, to keep pace with increasing use,  the new DNR Division of Outdoor Recreation is hiring staff to do more trail work and enforcement patrols specifically in southeast Utah. Further, Utah’s new Off-Road Vehicle Safety Education Act will require (a) all OHV operators to complete an education course, (b) all ATVs to display license plates for easier identification, and (c) vehicle operators who are convicted of going off-trail to repair their damage through community service. With these additional resources, the BLM will be able to effectively implement alternative A and resolve any issues with the status quo.

These types of contributions were recently recognized by the USFS planners as part of the Sustainable Trails effort as follows:

The engagement and efforts of motorized groups have improved the condition of trails across National Forest System lands and we look forward to continued engagement with the motorized community as part of the Trail Challenge…. During phase one, I welcome collaboration to adequately track, monitor, and acknowledge accomplishments by the motorized community while identifying lessons learned to incorporate into future phases of the Trail Challenge.[66]

This type of a statement to a partner agency to the USFS should be significant. While many interests are struggling mightily to provide a single maintenance crew, the Utah OHV Program has made huge strides in the last several years to create a maintenance program for summer recreational opportunities.[67] This is a model of collaboration moving forward, and the Proposal should avoid any unintended negative impacts to this collaboration.  Over the life of the Proposal this partnership will grow into a strong and important funding partner for the Moab FO.

In addition to the direct funding of BLM management, the sustainability of the motorized community is significantly buttressed by the fact that every route available for usage by the motorized community has been subjected to significant scrutiny under the travel management Executive Orders issued by President Nixon in 1972. No other recreational activity on public lands has been subjected to this level of scrutiny and analysis. The Organizations believe the strategic implications of providing areas in southern Utah that provide that “carrot” to the users who have worked so hard to date to create a sustainable trails network that aligns with the BLM lands. The value of this type of message should not be overlooked. We believe this is a model of collaboration moving forward, and the Proposal should avoid any unintended negative impacts to this collaboration, and that over the life of the Proposal this partnership will grow into a hugely strong and important funding partner for the Moab FO.

16(a). The Proposal should temper the swings of paradoxical opinions.

The Moab community has marketed itself as a global destination for all forms of recreation for decades and this marketing has been successful as Moab has become a global destination for recreational activity in many forms. This was in stark contrast to what Moab used to provide for recreation, where visitation was much smaller scale and advertising was passive to non-existent. Moab was a mining community that recreated on the weekends. Mining then largely stopped, and recreation was targeted to replace the lost revenues from mining. While this advertising has been successful, the community has also been divided between those that support this recreational economic benefit and those that are opposed to it. This “close the door behind me” type mentality has become far too common in areas where Americans are moving to as a result of the easy access to recreational activities and public lands more generally.  Moab has become the focal point for this type of discussion. Too frequently this mentality strangely correlates with large areas of public lands that these communities are often synonymous with.

While this internal discussion about what Moab wants to be as a community remains ongoing,  Moab continues to advertise itself as a recreational destination across the world. Below are a few samples of current advertising efforts from Moab inviting the public to visit Moab and experience the public lands.

Moab Daily Flights – YouTube

Moab advertisements

 

Many small communities have rapidly developed due to their slower lifestyles and proximity to large areas of public land, and this has often created conflict as many of the newer residents that have moved to these areas do not understand public lands and see these areas as an opportunity to build private recreational opportunities. While this is a situation that is becoming more common, Moab has continued to advertise itself as a recreational destination. This is in stark contrast to many other recently developed recreational destinations, such as Lake Tahoe in California, Aspen Mountain in Colorado, and Jackson Hole in Wyoming where they are advancing exceptionally limited targeting of recreational visitation.  This has resulted in an unusual and somewhat offensive situation where the Moab community is inviting the public to come and experience the area.  Once the public comes, they are blamed for visiting the area by a segment of the community. This is not okay, and also puts public-lands managers in a very difficult position.

16(b).  Best available science concludes closures often make conflict worse instead of better.

The Organizations believe that analysis of how best available science supports the management decisions and direction of any proposal constitutes a critical part of the planning process, especially when addressing perceived user conflicts.  This analysis will allow the public to understand the basis of alleged user conflicts and why travel management has been chosen to remedy the concern.   Relevant social science has clearly found this analysis to be a critical tool in determining the proper methodology for managing and truly resolving user conflicts.

When socially based user conflict is properly addressed in the Proposal, the need for travel management closures will be significantly reduced. Researchers have specifically identified that properly determining the basis for or type of user conflict is critical to determining the proper method for managing this conflict.  Scientific analysis defines the division of conflicts as follows:

For interpersonal conflict to occur, the physical presence or behavior of an individual or a group of recreationists must interfere with the goals of another individual or group….Social values conflict, on the other hand, can occur between groups who do not share the same norms (Ruddell&Gramann, 1994) and/or values (Saremba& Gill, 1991), independent of the physical presence or actual contact between the groups……When the conflict stems from interpersonal conflict, zoning incompatible users into different locations of the resource is an effective strategy.  When the source of conflict is differences in values, however, zoning is not likely to be very effective. In the Mt. Evans study (Vaske et al., 1995), for example, physically separating hunters from nonhunters did not resolve the conflict in social values expressed by the nonhunting group. Just knowing that people hunt in the area resulted in the perception of conflict. For these types of situations, efforts designed to educate and inform the different visiting publics about the reasons underlying management actions may be more effective in reducing conflict.

Other researchers have distinguished types of user conflicts based on a goal interference distinction, described as follows:

The travel management planning process did not directly assess the prevalence of on-site conflict between non-motorized groups accessing and using the yurts and adjacent motorized users…..The common definition of recreation conflict for an individual assumes that people recreate in order to achieve certain goals, and defines conflict as “goal interference attributed to another’s behavior” (Jacob & Schreyer, 1980, p. 369). Therefore, conflict as goal interference is not an objective state, but is an individual’s appraisal of past and future social contacts that influences either direct or indirect conflict. It is important to note that the absence of recreational goal attainment alone is insufficient to denote the presence of conflict. The perceived source of this goal interference must be identified as other individuals.

It is significant to note that Mr. Norling’s study, cited above, was specifically created to determine why winter travel management closures had not resolved user conflicts for winter users of a group of yurts on the Wasatch-Cache National forest. As noted in Mr. Norling’s study, the travel management decisions addressing conflict in the areas surrounding the yurts failed to distinguish why the conflict was occurring, and this failure prevented the land managers from effectively resolving the conflict.

The Organizations believe that understanding why the travel management plan was unable to resolve socially based user conflicts on the Wasatch-Cache National Forest is critical in the Labyrinth Rims/Gemini Bridges planning area.  Properly understanding the issue to be resolved will ensure that the same errors that occurred on the Wasatch-Cache are not implemented again to address problems they simply cannot resolve.  The Organizations believe that the Moab FO must learn from this failure and move forward with effective management rather than fall victim to the same mistakes again.

16(c). Court decisions on user conflicts have reviewed management decisions closely.

Courts have reviewed generalized claims of user conflicts as the basis to alter existing site-specific strategies for use and expansion of access in areas with concerns around user conflicts with some detail.  This is exemplified by the 9th Circuit decision in the matter of Wild Wilderness v. Allen.[68]  In this case, the USFS Deschutes NF had embarked on a long-term plan to reduce the user conflicts occurring on the Forest between motorized and non-motorized users.

The USFS plan in the Deschutes RMP looks surprisingly similar to the provisions in the Proposal.

Part of the Deschutes Forest plan was to expand motorized parking and access in several areas.  In the site specific NEPA for the expansion of these areas, non-motorized users challenged the expansion of access for motorized usage asserting user conflicts would be increased. The USFS was able to demonstrate the success of existing planning in reducing user conflicts and that expanding motorized access would not reverse this trend. In the 24-page decision that confirmed the USFS decision, the 9th Circuit looked at assertions of conflict with a surprising level of detail. We believe this decision is highly relevant to the direction of the Proposal and details how the BLM will need to document its management direction and any alteration of the management direction should there be a desire to do so.  Such a change would need to be detailed with a high level of specificity.

17. President Biden’s executive Orders requiring an expansion of recreational opportunities should be addressed in the Proposal.

There have been numerous actions by Congress and the Executive Branch directly targeting southern Utah with numerous landscape-level planning requirements. Often these decisions are not accurately summarized or entirely overlooked by some portions of the public in the planning process.  The recent issuance of Executive Order # 14008 by President Biden on January 27, 2021 would be an example of a decision that is often only partially summarized in most materials we are seeing submitted in comment processes for federal land planning, as the “30 by 30” concept is memorialized in this Order. It is our position that the “30 by 30” concept was long ago satisfied in the planning area given the large expansions of either Congressionally designated wilderness, national parks and monuments, and national conservation areas along with administrative designations in the region. There can be no argument that the national parks, wilderness area, and WSAs that completely surround the planning area are not sufficient to balance the planning area as they combine to be many times larger than the planning area.

In direct contrast to the summaries of EO 14008 we are seeing, this Order had provisions protecting lands generally but also had specific goals of improving access to public lands. This has been overlooked in most summaries, but the Organizations submit these requirements are critical to bringing balance to public lands.  §214 of EO 14008 clearly mandates improved recreational access to public lands through management as follows:

It is the policy of my Administration to put a new generation of Americans to work conserving our public lands and waters. The Federal Government must protect America’s natural treasures, increase reforestation, improve access to recreation, and increase resilience to wildfires and storms, while creating well-paying union jobs for more Americans, including more opportunities for women and people of color in occupations where they are underrepresented.

The clear and concise mandate of the EO to improve recreational access to public lands is again repeated in §215 of the EO as follows:

The initiative shall aim to conserve and restore public lands and waters, bolster community resilience, increase reforestation, increase carbon sequestration in the agricultural sector, protect biodiversity, improve access to recreation, and address the changing climate.

217 of EO 14008 also clearly requires improvement of economic contributions from recreation on public lands as follows:

Plugging leaks in oil and gas wells and reclaiming abandoned mine land can create well-paying union jobs in coal, oil, and gas communities while restoring natural assets, revitalizing recreation economies, and curbing methane emissions.

Significant concern has been raised around the “30 by 30” concept that was also memorialized in EO 14008. While the EO does not define what “protected” means, the EO also provided clear and extensive guidance on other values to be balanced with. From our perspective, the fact that large tracts of land in the planning area are Congressionally designated or managed pursuant to Executive Order far exceeds any goals for the EO. While there is overlap between these categories that precludes simply adding these classifications together, this also does not alter the fact the planning area has achieved these goals of 30% of acreages being protected as these protected areas both surround the planning area and dwarf it.

18. Alternatives for Wild and Scenic River areas could include roads and trails.

The Organizations are aware that the Green River was partially designated Wild River and partially designated as a Scenic River in 2019 by the Dingell Act. Pursuant to the Scenic designation, minimal road access was allowed to the corridor around the area. Even with a Wild designation, trail access to these areas is allowed. This access level to these areas is clearly and specifically identified in the act as follows:

(1) Wild river areas – Those rivers or sections of rivers that are free of impoundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted. These represent vestiges of primitive America.

(2) Scenic river areas – Those rivers or sections of rivers that are free of impoundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads.[69]

It should be noted that the varying characteristics and natures of these designations were the basis of extensive designation around the passage of the WSR act.  While roads and trails are a defining characteristic of these designations, the Proposal seeks to analyze these defining characteristics of the river compared to a no change from purely primitive areas or something akin to a Wilderness Corridor around the River.  Given that the Wilderness Act was passed into law in 1964 and the Wild and Scenic River Act was passed in 1968, there can be a very strong inference that Congress clearly intended that some level of alteration of the landscape is permitted in areas designated as Scenic.  This inference becomes even stronger when the sponsor of both the Wilderness Act and Wild and Scenic River act is recognized as the same person, Senator Frank Church from Idaho.  Even Wild Rivers may be accessed by trails of all forms so again clearly some level of impact is acceptable especially as these are defining characteristics of different designations of River Stretches.  Even a Wild River may be accessed by motorized trails and exemplifies the wide range of recreational opportunities that Congress sought to provide with any level of WSR designation.

The clearly stated desire of Congress to create a designation that was not Wilderness but protected certain values in the River System is specifically addressed in the legislative history of the Wild and Scenic River Act as follows:

The bill has been referred to as an extension or corollary of the Wilderness Act, but its provisions are not nearly as restrictive. A national wild or scenic river area will be administered for its esthetic, scenic, historic, fish and wildlife, archeologic, scientific, and recreational features, based on the special attributes of the area. However, it will not prohibit the construction of roads or bridges, timber harvesting and livestock grazing, and other uses that do not substantially interfere with public use and enjoyment of these values. Mining will be allowed to continue, although claims located after the effective date of the act may be subject to regulation to conform to the system, particularly to prevent pollution.[70]

Given that the Wilderness Act and Wild and Scenic Rivers Act were both written by Senator Frank Church of Idaho, we submit the clearly stated Congressional intent of the Legislation that a Wild and Scenic River designation is significantly less restrictive than a Wilderness designation is highly relevant to our concerns on the Proposal. Many of the alternatives provided are in direct conflict with the clearly defined management boundaries of the Wild and Scenic River Act. The Organizations submit that closing trails in the Scenic River corridor of Labyrinth Canyon is no more appropriate or legal than building a motorized trail in a Wilderness Area.  Congress has spoken on these issues and these decisions are outside the scope of land manager authority to alter, regardless of the public pressure to do so.

It is from this position of the level of motorized access being a defining characteristic of the various types of levels for Congressional designations that we must object to the Proposal seeing all impacts as negative to the designation. The Proposal proposes the following analysis of routes in the Scenic River corridor:[71]

Figure 3.14 Miles of Evaluated Routes in Green River Scenic WSR Corridor

This chart specifically exemplifies how altered the range of alternatives is for the entire Proposal, as Alternative B actually manages the corridor to the exclusion of roads and trails, despite these areas being a defining characteristic of the designation. No explanation is provided to allow the public to meaningfully understand how these alternatives were identified and developed. This is problematic as there are no paved roads in the Scenic River corridor but rather primitive (Class D) roads and one graded (Class B) road, which provide a FAR more limited recreational opportunity than a paved road. Not only is this arbitrary under NEPA, this is in direct conflict with the clearly stated desire of Congress around the desired experience provided in a Scenic River corridor.

The WSR management proposal creates further concern as we are unable to identify any change in condition type analysis for NEPA purposes regarding why current management of these areas has been found to be insufficient to protect resources in the area.  As we have identified previously, planning in this area was completed in 2008 and the Proposal clearly identifies that there are no resource impacts from recreational trails in the area.   The Organizations are very concerned that the finding that there are no resource impacts in the area is made without limitation. This means the BLM has found that existing access levels are consistent with the WSR management goals and objectives.  In this situation, we must ask why no alternative provided carries forward existing management in these areas. At best Alternative C provides for a 20% reduction in access to these areas without any analysis at all.  This is a problem.

This failure to even address changes in usage gives rise to a situation exhibiting the general poor analysis of the Proposal in general.  Clearly the analysis provided in the range of alternatives has been based on conclusions that are inconsistent with other areas of the analysis, mainly that there is too much visitation to these areas.  This would immediately conflict with the range of alternatives for the entire Proposal that existing resources are sufficient to continue to provide opportunities.  This type of a conclusion, that existing resources are insufficient to support vitiation, would warrant discussion of how better to address increased visitation to these areas.  That has not been provided and is a very good example of the circular logic that plagues the Proposal and its decision that more routes must be closed in this area.

Are there characteristics or uses that would be incompatible with any level of WSR designation?  That answer is, of course, yes, and could be exemplified by mine development and activity, dam development, energy transmission lines, high intensity grazing or other usages incompatible with recreation to name a few, but none of these inconsistent usages are within the scope of the Proposal. This concern over inconsistent usages along a Scenic River designation are exemplified by the fact Congress provided for a 2-mile-wide corridor around a WSR designation to prohibit mineral extraction.[72]  Again we are unable to understand how a defining characteristic of these designations could subsequently be removed based on the threat that these defining characteristics are thought to have on these areas.

Finally the WSR management proposal should account for the fact that motorboat use of Labyrinth Canyon has a long history and a long future ahead. The “Friendship Cruise” is a motorboat event that occurred every year for decades, and motorboats continue to navigate Labyrinth Canyon for recreational and administrative purposes. This activity will continue as there’s no interest in prohibiting motorboats by the State of Utah, which manages the Green River and other navigable waterways.

19. The Proposal should resolve the systemic issues inherent in its wildlife analysis, that were identified by the Organizations’ expert review.

Please refer to the attached Exhibit “10” entitled “Labyrinth Rims TMP Wildlife Report 10-21-2022,” which is incorporated into these comments to be analyzed by the BLM, not merely as a reference document. Broadly the wildlife analysis demonstrates that the best available science justifies few if any of the closures proposed in alternatives B or C.

20. The Proposal should incorporate the knowledge of local OHV groups.

OHV groups based in Moab, such as Moab Friends For Wheelin’, Red Rock 4-Wheelers, and Ride with Respect, have been faithful partners with the Moab FO for decades. In addition to educating visitors, each of them has dedicated several-thousand hours of service work to implement and refine the current travel plan in this planning area alone. Their perspectives come from working closely with fellow motorized-trail enthusiasts and land managers in the planning area, so their comments warrant additional attention.

Please see Exhibit “11” entitled “Labyrinth Rims TMP Letters from Local OHV Groups 10-4-2022,” which is incorporated into these comments to be analyzed by the BLM, not merely as a reference document. Note that some of these comments were sent to the Grand County Commission from its Motorized Trails Committee, which we do not represent, but we support the comments and are addressing them now to the BLM as they directly pertain to the Proposal.

Also see Exhibit “12” entitled “Labyrinth Rims TMP route-specific letter from RwR,” which is incorporated into these comments to be analyzed by the BLM, not merely as a reference document. The Organizations support this letter, which highlights the value of some key routes, and suggests mitigation measures as alternatives to route closure.

Note that the Exhibit “12” only makes route-specific comments that weren’t already covered in the October 6th letter submitted by Colorado Offroad Trail Defenders (COTD). Please regard the COTD letter as incorporated into these comments to be analyzed by the BLM. In 527 pages, the COTD letter painstakingly documented observations that are accurate and relevant to reach conclusions that are reasonable and thus supported by the Organizations.

21. The Proposal should honor input from the county that developed legislation which established area designations.

Emery County, which developed the public-lands bill that was packaged into the Dingell Act, did not intend for the Scenic River designation to access on routes currently designated open for motorized use.  Further Emery County did not intend for wilderness designations to be “mirrored” in any adjoining counties.  This intention of Emery County was upheld and respected in the legislation itself.  The bill contains an important provision to the effect that the existence of any wilderness or other special designation in or bordering Emery County shall not be construed to affect land management values, policies, and programs in adjoining counties.  Consider the following comments that Emery County Public Lands Administrator, Jim Jennings, submitted to the BLM on 10/5/2022:

I am writing in regards to the “Labyrinth Rims Gemini Bridges Travel Management” comment period and want to share some information that Commissioner Kent Wilson of Emery County and I have discussed and agreed upon to share.  The Dingell act that was passed in 2019 affected the Emery County side of the Green River that included thousands of acres of Wilderness Land.  The intent of the Dingell act and the decisions that were made during that process, was not to influence any other Counties land management decisions.  Emery County does not have the power or the desire to influence other Counties land management decisions.  The Emery County side of the river is much different than the West side or Grand County side of the river.  The routes to the river access were very few in number in Emery County and were cherry stemmed as part of the Dingell act.  It is important for all user groups to be able to have access to the river, not just for those floating the river.  There are many historic motorized routes that should remain open to allow access for all types of user groups.  The implementation of the “scenic” section of the river in the Dingell act implies that it is “Scenic”  It was not designated as “Wild”.

We recognize the importance of the precious water ways and sources and the beauty that it provides as part of the outdoor experience.  We hope that as you move forward and think of the wildlife, soils, access to State of Utah lands, Off Highway Vehicle recreation opportunities, non motorized recreation activities and all other parts of this decision, that you please put high priority into keeping routes open for the disabled and elderly and those families who are trying to take young children out to explore and learn about the outdoors and the beauty of this amazing area.  Everyone has the right to enjoy the beauty of several sections of this area of the river by using motorized access.  Access to the river is also very important for Search and Rescue efforts and health and safety for people to be able to get on and off of the river.  Education of how to respect the land and respect others who are recreating in different ways should be a high priority.

Areas that have little of no use and are not causing any problems being open to motorized use, should not be a focus of areas to close.  We are open to discuss any of these issues further if needed.  Thank you.

Conclusion

The Organizations are disappointed about the systemic failure of this Proposal to properly apply relevant federal law and properly apply settlement agreements that the motorized community has been party to. Further we’re deeply concerned that the current Proposal may have significant pre-decisional impacts on other efforts that are ongoing in the Field Office and planning area. Each of these challenges are presented in addition to the direct conflict of the Proposal with basic NEPA requirements and practices.

Too often the Proposal fails to correctly apply Congressional actions and determinations on the management of Congressionally designated areas, such as Wild and Scenic River areas and management of the Old Spanish Trail.  Often the Proposal seeks to exclude usages that are identified by Congress as defining characteristics of these various areas or seek to elevate usages that are reduced in priority for the Congressionally designated areas over Congressionally identified priorities for the usage of these areas.  Given the systemic failures throughout the Proposal, the Organizations are forced to support Alternative A and request that the Proposal be reviewed for basic consistency with the applicable federal laws and peer reviewed and published data on issues for a wide range of issues addressed in the Proposal for basic consistency.  Once corrected, the Proposal must be re-released to the public for a meaningful comment period.

While a modified Alternative D may appear to be something we could support, we are unable to do so as the range of alternatives provided in the Proposal have been artificially skewed as a result of the systemic failures in the planning process. The Organizations have been involved in discussions around access to these areas for decades, both in the development of travel and resources management plans. In addition to the planning efforts, our involvement has continued on behalf of recreation interests in litigation, stretching from the Settlement in SUWA v. U.S. DOI, Case No. 2:12-cv-257 DAK (D. Utah) to bringing successful jurisdictional challenges in SUWA v. Babbitt, 2000 U.S. Dist. LEXIS 22170 (D. Utah 2000), rev’d, 301 F.3d 1217 (10th Cir. 2002), rev’d and remanded, Norton v. SUWA, 542 U.S. 55 (2004). We remain committed to this presence in ongoing management of Utah BLM lands.

Many of our local partners have intervened in defense of the BLM when legal challenges were brought before and after the Settlement now being implemented, and have continued to be involved with planning/travel efforts throughout the region. We have worked hard to support these efforts in many ways.  We are intimately familiar with the difficulties that the BLM has encountered in the management of this area, but strongly assert that all recreational interests must be allowed access to the area as the Planning area is one of the few remaining multiple use areas in Utah. Moving forward with the successful path that has been developed for this area is the only way forward in the Organization’s opinion, but unfortunately that path has not been provided in the Proposal.  Rather arbitrary decisions have been made to base the Proposal upon. Supreme Court decisions not recognized for the management of NTSA routes. Continued issues with pre-decisional camping decisions plague the Proposal. While the routes and opportunities at issue in the Proposal are world class, the analysis of the Proposal falls well short of aligning with that value.

For questions, please contact Clif Koontz (435-259-8334 / clif@ridewithrespect.org) or Chad Hixon (719-221-8329 / chad@coloradotpa.org).

Respectfully Submitted,

Chad Hixon
Executive Director
Trails Preservation Alliance

Clif Koontz
Executive Director
Ride with Respect

 

References/Citations

[1] See, 43 C.F.R. § 1610.5-3, and  Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 69 (2004).

[2] See, Calvert Cliffs’ Coordinated Committee v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972)

[3] See, 2017 SA Subdivision (b)(16)(d) (emphasis added)

[4] See, Proposal at pg. 20.

[5] See, 2017 SA at pg. 14

[6] See, RMP at pg. 90.

[7] See, RMP at pg. 90

[8] See, RMP at pg. 91

[9] See, RMP at pg. 91.

[10] See, DOI BLM Moab Field Office RMP Evaluation; September 2015 at pg. 7.

[11] See, DOI BLM: Moab FO; limiting roped and aerial activities in mineral and Hell Roaring Canyon; August 2020 at pg.3.

[12] Stats Report Viewer (nps.gov)

[13] Stats Report Viewer (nps.gov)

[14] See, Proposal at pg. 20.

[15] See, RMP FEIS at pg. 2-2

[16] See, RMP FEIS at pg. 2-79

[17] See, Moab  RMP FEIS at pg. 4-407.

[18] 40 CFR 1500.1

[19] BLM Manual H-1790-1 – NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK – pg. 78.

[20] BLM Manual H-1790-1 – NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK – pg. 4.

[21] See, 43 CFR 1500.1(b)

[22] See, BLM Manual H-1790-1 – NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK – pg. 2.

[23] See, 40 CFR 1502.1

[24] See, Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

[25] See, 42 U.S.C. §4321

[26] See, 40 CFR §1508.7

[27] See, Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 f3d 437 at pg. 442; 42 ERC 1594, 26 Envtl. L. Rep 21276

[28] See, Kunzman, 817 F. 2d at 492; see also Citizens for a Better Henderson, 768 F. 2d at 1056.

[29] See, 40 CFR 1500.1

[30] See, BLM Manual H-1790-1 – NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK – pg. 78.

[31] See, BLM Manual H-1790-1 – NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK – pg. 4.

[32] See, James Allen; Does not provide a range of alternatives to satisfy NEPA…..NEPA Alternatives Analysis: The Evolving Exclusion of Remote and Speculative Alternatives; 2005 25 J. Land Resources & Envtl. L. 287.

[33] See, Citizens for a Better Henderson v. Hodel, 768 F. 2d 1051, 1057 (9th Cir. 1985).

[34] See, Friends of the Earth v Coleman; 513 F.2d295 (1975)

[35] See,  Western Governors’ Association report; A snapshot of the Economic Impact of Outdoor Recreation; prepared by Southwick and Associates; July 2012 at pg. 1.

[36] See,  43 U.S.C. §1712

[37] See, DOI BLM LUP Handbook H-1601-1 at Appendix D pg. 2. Emphasis added.

[38] See, Proposal at pg. 127.

[39] See, Hughes River Watershed Conservancy v. Glickman; (4th Circ 1996) 81 f3d 437 at pg. 442; 42 ERC 1594, 26 Envtl. L. Rep 21276

[40] See, Hughes River Supra note 24

[41] See, Department of Commerce; Bureau of Economic Analysis; Outdoor Recreation Satellite Account; Protype statistics for 2012 to 2016; February 14, 2018 at pg. 2.   A complete copy of this research has been included with these comments as Exhibit “1”.

[42] See, US Department of Commerce; Bureau of Economic Analysis; Outdoor Recreation Satellite Account; US And States, 2020; New Statistics for 2020; prior years updated; November 9, 2021 at pg. 10.  A complete copy of this summary report is attached as Exhibit “2”.

[43] See, Western Governors’ Association; A Snapshot of the Economic Impact of Outdoor Recreation; June 2012 at pg. 4 A copy of this report has been attached as Exhibit “3”.

[44] Id at pg. 1.

[45] See, Western Governors’ Association; Get out West Report; Managing the Regions Recreational Assets; June 2012 at pg. 3. A copy of this report is attached to these comments as Exhibit “5”.

[46] Get Out West Report at pg. 5.

[47] See, USDA Forest Service; JOINT VENTURE AGREEMENT BETWEEN THE USDA FOREST SERVICE PACIFIC NORTHWEST RESEARCH STATION and OREGON STATE UNIVERSITY Joint Venture Agreement # 10-JV-11261955-018 Updated Spending Profiles for National Forest Recreation Visitors by Activity; November, 2010 at pg. 6.  A copy of this report is attached to these comments as Exhibit “6”.

[48] See, USDA Forest Service; Pacific Research Station; Stynes and White; Updated Spending Profiles for National Forest Recreation Visitors by Activity; Nov 2010 @ pg. 6.

[49] See, Pew Charitable Trusts;  Quiet Recreation on BLM-Managed Lands in Southwest Utah: Economic Contribution in 2015; July 2017 at pg. 2.

[50] See, Proposal; Appendix G at pg. 127

[51] See, 18-1584 United States Forest Service v. Cowpasture River Preservation Assn. (06/15/2020) (supremecourt.gov).  A complete copy of this decision is attached to these comments as Exhibit “4”.

[52] See, Proposal at Pg. 42. Emphasis added.

[53]  See, Proposal at Pg. 44.

[54] See, Proposal at Pg. 46.

[55] See, 16 USC  1246 (j)

[56] See, 16 USC §1242(a)(3)

[57] See, 16 USC §1241 (5)

[58] See,  Department of Interior; Bureau of Land Management – National Park Service; Old Spanish National Historic Trail- Comprehensive administrative Strategy; 2017 @ Pg 51.

[59] See,  Department of Interior; Bureau of Land Management – National Park Service; Old Spanish National Historic Trail- Comprehensive administrative Strategy; 2017 @ Pg 58.

[60] See, 40 C.F.R. § 1502.5

[61] See, DOI-BLM-UT-Y010-2021-0094

[62] As an example of this conflict please See, Indian Creek TMA_OID154

[63] See, Proposal at Pg. 78 .

[64] As an example of this warning is available at the following link: Off-road vehicle use : a management challenge (archive.org)

[65] 1413. Berry, K. H. 1980. The effects of four-wheel vehicles on biological resources. Pp. 231-233 in: R. N. L. Andrews and P. Nowak (editors), Off-Road Vehicle Use: a Management Challenge. U.S. Department of Agriculture, Office of Environmental Quality, Washington, D.C.

[66] A copy of this correspondence is attached to these comments as Exhibit “7”.

[67] More information on this program is available here: ohv.utah.gov

[68] See, Wild Wilderness v. Allen; 871 F.3d 719 (2017). A copy of this decision is attached as Exhibit “8”.

[69] See, 16 USC 1271

[70] See, Senate Bill Report 491 of 90th Congress; at pg. 5.  A complete copy of this report is attached as an Exhibit “9” to these comments.

[71] See, Proposal at pg. 42.

[72] See, 16 USC §1279(b).

 

 

 

List of Exhibits

  1. Department of Commerce; Bureau of Economic Analysis; Outdoor Recreation Satellite Account; Protype statistics for 2012 to 2016; February 14, 2018 at pg. 2.
  2. US Department of Commerce; Bureau of Economic Analysis; Outdoor Recreation Satellite Account; US And States, 2020; New Statistics for 2020; prior years updated; November 9, 202 at pg. 10.
  3. Western Governors Association; A Snapshot of the Economic Impact of Outdoor Recreation; June 2012 at pg. 4.
  4. 18-1584 United States Forest Service v. Cowpasture River Preservation Assn. (06/15/2020) (supremecourt.gov).
  5. Western Governors Association; Get out West Report; Managing the Regions Recreational Assets; June 2012 at pg. 3.
  6. JOINT VENTURE AGREEMENT BETWEEN THE USDA FOREST SERVICE PACIFIC NORTHWEST RESEARCH STATION and OREGON STATE UNIVERSITY # 10-JV-11261955-018 Updated Spending Profiles for National Forest Recreation Visitors by Activity; November, 2010 at pg. 6.
  7. USFS correspondence re 10-Year Trail Shared Stewardship Challenge.
  8. Wild Wilderness v. Allen; 871 F.3d 719 (2017).
  9. Senate Bill Report 491 of 90th Congress; at pg. 5.
  10. Labyrinth Rims TMP Wildlife Report 10-21-2022.
  11. Labyrinth Rims TMP letters from Local OHV Groups 10-4-2022.
  12. Labyrinth Rims TMP route-specific letter from RwR.
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Chaffee County Camping Plan and Travel Management Environmental Assessment Comments

TPA-COHVCO-CORE-logos

Royal George Field Office
Att: Kalem Lenard
3028 E. Main St.
Canon City, CO 81212

Chaffee County Camping EA Comments from TPA, COHVCO and CORE

Dear Project Team:

Please accept this correspondence as to the above organizations’ comments about the Chaffee County Camping Plan and Travel Management Environmental Assessment (referred to as the “EA”) after this.

The Organizations are not entirely in support of any of the Alternatives. They all close far too many campsites and too many roads. Alternative B is the most restrictive and highly unacceptable to the Organizations and our members. Alternatives C & D have some positives but are not enough for us to support outright. The following comments detail our concerns and recommendations.

I. Partnership

CORE was formed in 2017 to help educate public land users about stewardship and ethics from a motorized user perspective. We also partner with the Royal George Field Office (RGFO) and the Pike and San Isabel National Forest (PSI) to help with trail maintenance and user management. We have spent thousands of volunteer hours removing trash, cleaning up abandoned long-term camps, containing campsites, mitigating and repairing off-trail issues, and working with the Agencies to help in any way we can.

COHVCO has consistently empowered its 2,500 members to represent, assist, educate and empower all recreationists in the protection and promotion of off-highway motorized recreation throughout Chaffee County. COHVCO is also an environmental organization that advocates and promotes responsible use. Conservation of our public lands has supported the work of all motorized groups within Chaffee County.

The TPA is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities.

As part of the Organization’s ongoing relationship with the RGFO, we appreciate the BLM’s response to ongoing motorized user concerns. However, the draft EA does not offer many positives for motorized users and multi-use public land access. The RGFO poses no solutions for many areas, closure is the default answer, and many hypotheticals and opinions lead to this conclusion. The EA shows the gap between the RGFO and the motorized user. We will strongly reiterate that multi-use recreation is almost always based on access from ‘motorized’ routes. This would include non-motorized users accessing public land for other forms of recreation via the road system. This EA continues the failure of misunderstanding that relationship. The Organizations have consistently tried to work with the RGFO to close this gap, and this EA is an example of that gap continuing to cause issues.

II. Travel Management

 The Organizations have contended from the beginning that this project is a Travel Management Plan despite BLM’s assertions to the contrary early on, and we appreciate BLM’s acknowledgment of that fact in the EA. However, this highlights the concerns from the Organizations that the BLM would use this opportunity to justify closing public routes. That has happened in this EA, and we do not outright support any alternatives relative to Travel Management. Alternative C does have a few positives, but Alternative A (existing management) at this point is the best option moving forward for adequate motorized access and multi-use recreation.

The Organizations are frustrated that the RGFO is creating problems where they don’t currently exist and then citing closure as the only remedy. Several routes in the project area do indeed intersect private land, but many of those do not now have conflict or issues. Today you can drive all the routes slated for the Administrative Use designation in the Pass Creek area without on-ground resistance or restriction. Yet, BLM’s solution to these non-issues is to close them to public use. Why is existing management not a viable option? And why is there no attempt at gaining an easement across the private land either through a Prescriptive Easement or a purchase agreement? The FO could apply for an OHV grant to purchase easements for continued motorized use to keep the existing route network intact. The EA states that 15.5 miles of inventoried routes are without a public easement. Surely there is a workable solution for that small of mileage. It’s not as impossible as if there were 100s of documented miles without a possible easement. Local motorized groups would willingly partner in this proposition if the FO were to look at options other than closure.

The RGFO also reduces the value of several routes within the project area to justify closure in section 3.3.2.3 on page 51.

The average length of a closed route of 0.2 miles indicates that only minor short spurs are being contemplated for closure under this alternative and therefore this does not represent a significant loss of motorized public access to public lands. Those wishing to visit these areas would on average only have to travel by foot or horse an additional 0.2 miles from the closest designated motorized route. No major loop opportunities or major public access points would be closed under this alternative so there is not anticipated to be impacts to recreation opportunities.

This justification is purposefully diluting the importance of some routes by including the numerous short camping spurs within the Shavano Area and some in the Misc. Lands Area. Roads 5019, 5033, and 2055 are not short camping spurs, yet the above justification removes their importance to recreation and overall access. The public would need to hike much further than .2 miles for area access. Camping spurs and extremely short sections going to a single campsite are one thing but suggesting there is no loss of access when three desirable roads stand to be closed is not correct.

III. Project Prejudice 

This RGFO has continued to be plagued by influence and undo pressure by the Envision Chaffee County and the Chaffee County Outdoor Recreation Management Plan. On the eplanning Project Homepage, the BLM acknowledges the basis for this project was in response to local property owners, recreators, and grazing permittees and recognizes that the project was in response to, and aligns with, the Envision Chaffee County Project. This project continues to claim that recreation and camping are out of balance within Chaffee County and require correction by recreation restrictions. This group cites exploding state populations, dwindling wildlife populations, and countless impacts on lands within the county boundary. Continually talking about these issues has led to prejudice and negative perspective toward recreation by BLM staff. The frequently cited problems are without merit or accompanied documentation corroborating the claims. The Organizations have raised these issues countless times. We have offered science-based expert opinions and documentation and have asked questions that have yet to be answered by Envision Chaffee County or the RGFO. Public Land management decisions and projects require the utmost objectivity and quality information to manage for a broad range of uses, and continually hearing a negative opinion of recreation is influencing the RGFO and this project. The subsequent comment sections will provide examples of this unfortunate occurrence.

IV. Population Data

This project cites a 2017 Denver Post article with a population trajectory continually climbing upward as if Colorado would be run over by people in the mid-2020s and continually toward 2050
The EA also refers to this information in section 3.3.4.2 on page 57. Unfortunately, the cited population article is located behind a paywall, so the public cannot easily access the data without becoming a website subscriber.

This talking point (mass population increase) has continued to dominate the Envision Chaffee County meetings with BLM’s staff participation. Recreation restriction has constantly been discussed as the only remedy. Citing this fear continually and repeating this concern does not make it a reality, especially when current data refute the endless population claim and show the reverse is currently happening in Colorado. Yes, there was an upheaval in people’s habits and public land use in 2020. However, use in trail season 2022 is down from the past two years and closely resembles the use seen in 2019. The Organizations provide substantial volunteer hours within Chaffee County and have noted camping, vehicles, and general trail use to be consistently down in 2022 compared to 2020 and 2021.

A more recent state population analysis also refutes the BLM’s reliance on the exploding population cited in the 2017 article. Fox 31 News in Denver ran an article on their website on October 6th, 2022, titled “More people are moving out of Colorado than moving in.” The first sentence in the article states:

DENVER (KDVR) More data is coming in that suggests Colorado’s decade-long population eruption has ended.

The article goes on to say:

HireAHelper, an online moving service, analyzed over 90,000 moves that took place over 2021. In Colorado, 15% more people moved out of the state than into it over the year.

There is also a warning in the article about using population data in the 2010s (this EA) as a guide:

This outflux is a turnabout from the 2010s, during which Colorado gained 750,000 people. State demographers had warned that the trend was slowing in the late 2010s and early 2020s, despite the homebuying melee brought on by out-of-towners looking for outdoors adjacent homes. 

Colorado gained 27,761 people in 2021, which is the smallest population gain since 1990. Colorado’s population growth peaked in 2015 with nearly 100,000 more residents and has slowed most years since then. 

A Washington Examiner Article Dated February 15th, 2022, cites this information:

Fewer people are moving to Colorado, according to a census analysis by the Centennial State’s demography office. A mere 27,337 people moved to Colorado in 2020, and that number dropped to 14,731 in 2021, according to a report.

The Washington Examiner Article goes on to say:

In addition to the state’s lack of people moving in, Colorado’s overall population growth has taken a hit due to decreasing birth rates and an accompanying death rate increase, Garner said.

The RGFO should update their perspective, projections in this EA, and management prescriptions to reflect the most current data on Colorado’s population and trends. Continuing to prepare for theoretical mass increases in people and the damaging impacts to public lands does not use the best information and data available. This also does not adequately address the future project decision to address existing issues.

V.  Wildlife Data

 The wildlife data in this EA is based on cursory rationale and GIS analysis, but what is lacking is the specific adverse effect on any of the local big game populations cited as having issues. All the recommendations and projections are based on hypothetical impacts involving worst-case scenarios. This is highly speculative and does not rise to the level of significant impact. Envision Chaffee County and the RGFO have consistently claimed herd number decline and continue to claim recreation-related animal behavior issues. The assumption is that recreation causes animals to adjust their behavior because they may look at trail users, they could flee trail users, or they could have temporary avoidance of trail users, but that does not automatically result in a population-level impact. Envision and the BLM cannot show a population level impact because it does not exist for the big game herds that are in, or crossover through, the Chaffee County Area.

The Envision Chaffee County Outdoor Recreation plan on page 4 states:

Local herds of elk, bighorn sheep and mountain goat are really taking a hit as human pressure moves them out of high-quality habitat and shrinks the area they need to survive. 65% of key wildlife populations are already in decline. The plan’s Wildlife Tool maps critical habitat to focus improvements in the right areas and informs voluntary seasonal restriction strategies to give wildlife a break.

 The BLM has echoed this same language in section 3.3.3.6 on page 56 of this EA:

Based on trends of land use and population growth, the rates of human disturbance on wildlife and habitat would increase. Increased disturbance to wildlife and reduced habitat quality would likely have negative impacts on important wildlife population parameters such as overwinter survival, reproduction, and recruitment of young. As a result, the decline and stagnated growth of big game populations currently being observed could be exacerbated.

The problem with both statements is that big game numbers do not support these claims. The Organizations have attached several reports with these comments. The elk plans for E17 and E22 are attached and are the two units that cover Chaffee County. Both units have seen a significant increase in the goal since 1990, and the populations appear largely steady or slightly increasing; CPW has also confirmed the general trends. CPW updated the elk numbers in their 2020 winter range report (attached), and on page 11 of that document, E22 was estimated to be more than 10 above the goal in that report, and E17 was found to be at the goal. The assertion that elk populations are “really taking a hit” is unfounded and not supported by CPW’s data, and the BLM’s EA language is also incorrect. Stagnated growth is being used as a negative but could also be attributed to the numbers being at the population goal. But again, based on the data, there is no direct negative impact on herd numbers in Chaffee County.

For Bighorn Sheep in the area, attached reports S11 and S17 indicate the population has increased from 225-375 and was just accounted for in 2020. CPW has not published the other two units, but statewide the Sheep population cumulative for S01 to S86 has risen over the past three years, from 6,850 to 7,085.

The Mule Deer analysis has consistently had problems reporting an accurate count for unit D16, so the 10% below target in the report is questionable. D15 shows an increasing number of deer but below objective and has been historically below objective. Primary issues for this are noted as cougar predation and farmland conversion.

After reviewing this information, the question remains, where is the direct recreation association with a negative population-level impact for big game herds within Chaffee County? If Alternative A shows current management, how can BLM attribute this current level of use and recreational opportunities to big game herd numbers that are not declining? Especially when the RGFO has done zero management due to not having a travel management plan for many of the project areas and not having a camping management plan in place for the project areas.

Additionally, a peer review was done to evaluate the wildlife data used to create the Rec Plan and the Wildlife Tool. That review is attached to these comments. As of the writing of these comments, neither Envision nor BLM has addressed the questions or recommendations within that peer review for the Chaffee County area. The Organizations recommend to the RGFO staff to go back and rework the wildlife portion of the EA to only include actual on-ground instances within the project area for specific wildlife population decline. We also recommend taking out all speculative hypotheticals which are not substantiated.

VI. Erosion/Watershed Concerns

The project EA has many references to the potential for erosion and makes references to the watersheds for each road. And the preferred Alternative D includes this discussion:

Decommissioning or closing BLM routes (11.18 miles) under this alternative can reduce erosion risk to the entire route area. Soils in and around routes can slowly re-vegetate, decreasing the ability of water to detach soil particles and destabilize slopes and move sediment. Some of the closed routes are located on soils with severe erosion hazard rating for roads/trails. Differences in effects from route closure between Alternatives D, B, and C are negligible, though these closures are expected to have beneficial effects at the local (and potentially watershed) scale.

The Organizations would like to point out that the RGFO is suggesting the justifications for closing 11.18 miles of routes within a 13,000-acre project area are speculative at best. If there are erosion and watershed issues on these routes, they would currently be taking place and should have documentation as to the exact location and issue. The context of this discussion is also perplexing, given that there are only 44 total miles of routes within the 13,000-acre project area. To compare how much area the routes are comprised of, we can make an easy comparison. Assuming routes are 12 feet wide, the following calculation can give us some needed context.

44 miles x 5,280 feet per mile = 232,320 linear feet of routes.

232,320 linear feet x 12 feet wide = 2,787,840 square feet of area for the route mileage

2,787,840 square feet / by 43,560 (square feet in an acre) = 64 acres

That is 64 total acres of the area, which are taken up by the 44 miles of roads in this project. A simple comparison back to the 13,000-acre overall area will show that total road mileage (44) takes up .4% of the project area. Not only is .4% hardly significant (less than one-half of one percent) for discussion, but the RGFO then goes further and suggests that 11 miles of road closures will somehow reduce erosion risk and protect watersheds at the local level. That is a significant stretch as erosion happens everywhere within Chaffee County BLM-managed land regardless of roads and camping due to the topography, semi-active natural washes, and the high desert environment encompassing these segmented project areas. Closing 11 miles of routes within 13,000 acres for erosion will have no measurable impact.

VII. Managing Camping with Road Closures

Section 3.3.4.2 Reasonably Foreseeable Environmental Trends and Planned Action in the Area continues to offer worst-case scenario hypotheticals with no project area specifics.

In addition to the increase of impacts to aquatic resources on BLM managed lands due to the increase of camping on BLM managed lands, this trend of increasing population and tourism to the area has resulted in impacts to aquatic resources due to surface disturbance and development on non-BLM lands. The magnitude of these impacts is also expected to increase. 

And then the immediate justification for the Preferred Alternative D the EA states:

Alternative D includes the closure of some routes and camp sites as well as the ability to regulate camping and mitigate impacts.

The Organizations are highly against road closures as a management prescription to deal with camping impacts. Our scoping comments conveyed our position against closing roads and recreational assets to deal with camping impacts. Negative camping impacts require camping management, and closing areas so the public simply cannot reach them is not management. Those same impacts will continue to show up without management.

VIII. NEPA Concerns

The Organizations originally submitted these same comments during scoping, and we are re- submitting them because we continue to have these same concerns with this project. Accurate information is critical in developing public comments and involvement as frequently, members of the public do not have time, resources, or understanding to make these connections. The RGFO has complicated this issue by directly having BLM FO staff involved at the Envision Rec Council and Planning level while running this Project. These concerns are summarized in the NEPA regulations, which require high-quality information to be provided in the NEPA process. NEPA regulation provides as follows:

NEPA procedures must ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments and public scrutiny are essential to implementing NEPA.

The BLM RGFO has acknowledged that this camping project originated from Envision Chaffee County and that this project is in line with the goals developed by the Envision Chaffee County Process. Unfortunately, the Envision process was not created under NEPA, and the BLM RGFO’s involvement has created a web of confusion for the public. Envision was a county process primarily targeting county residents, but the RGFO is responsible for public land management for all users, not just county residents. The public is confused mainly by land management projects in general. Envision has only served to add another layer to that confusion and the understanding of who ultimately manages the land. Who finally decides management? Is it the BLM RGFO, or is it the county through Envision? The RGFO should remove itself directly from the Envision Process to ease public confusion about who is running the Project. RGFO staff should have no direct involvement with any Envision Position. When appropriate, the RGFO should invite county staff and county officials to cooperate with the RGFO on projects.

Envision and the BLM RGFO have repeatedly cited the ‘Cooperating Agency’ standard for why the BLM RGFO is at the Envision Table for ongoing discussions, but why was the Chaffee County Commissioner responsible for public land issues not part of the BLM’s ID team on this Project? Why was nobody from the county’s affordable housing initiative on the BLM’s ID team for this Project? This Project would seem the perfect opportunity to involve Chaffee County as a Cooperating Agency. The RGFO should have county personnel with specific knowledge engaged at the project planning level. However, the RGFO felt it is necessary to be part of the Envision Process on the Envision Rec Council and then stack a subsequent BLM project and NEPA on top of Envision. The RGFO also could not confirm that Chaffee County, as an entity, commented during the scoping of this project. Chaffee County is a cooperating agency and adopted the Envision Chaffee County Outdoor Recreation Management Plan into its comprehensive plan. The county should therefore submit comments for this project concerning their interests.

Envision’s process was rife with errors and inaccurate scientific analysis. CORE, TPA, and others frequently pointed out these facts, and the RGFO was served with a letter detailing a peer review of Envision’s Wildlife Data. This review (attached to these comments) called into question numerous aspects of the Wildlife Tool responsible for helping to develop the Chaffee County Outdoor Recreation Management Plan. The RGFO has acknowledged that this camping plan follows the Rec in Balance Plan but has not responded to the Wildlife Plan’s scientific issues. The RFGO project page for this Proposal links directly to the Envision Rec in Balance Plan. How can the BLM now run a project and subsequent NEPA on top of these glaring scientific problems? How can a NEPA, which is supposed to contain ‘Accurate scientific analysis,’ be based on a county project with in-accurate scientific analysis? How can the RGFO satisfy public scrutiny as part of a public project started in a separate process lacking public scrutiny?

The Organizations continue to recommend the RGFO remove its participation directly from Envision. The Organizations also compel the RFGO to request Envision fix the wildlife issues associated with the Envision plan before proceeding with this project and future projects.

IX. Pass Creek

The Organizations are recommending Alternative A. (current management) for the Pass Creek Area. These roads do not have resource impact or off-trail issues. BLM Roads 2006, 2007,1096, 1106, 1108, and 1109, 1096, 1309, and 1099 provide access to the Pass Creek area and are frequented by 4×4 drivers and hunters. We appreciate Alternative C keeping open 2006, 2007, and 2055 and some additional small sections. We recommend keeping these three routes available for public use as they are vital for multi-use, motorized, and hunting recreation. For the other routes listed in the pass creek area, the BLM claims to have no easement. The Organizations recommend Alternative A for these routes because there are no current clashes with property owners and no recent interpersonal conflicts. The Organizations also recommend the BLM seek easements, either prescriptive or otherwise, to maintain public access for these routes.

X. Misc. Lands

The Organizations recommend Alternative A (current management) for this area, and we are opposed to closing BLM Roads 5033, 5019, and 5012. We are pleased to see Alternative C keeps 5012 and 5033 open, but multi-use recreation, motorized users, and hunters require access on all three routes. All three roads access National Forest-managed lands and are used for 4×4 driving and hunting.

These roads are also an excellent option for 4×4 driving during winter when other roads in Chaffee County are not accessible due to snow. Closing these roads will negatively affect hunting access and 4×4 driving. 5019 does indeed go to National Forest-managed land. Still, the San Isabel National Forest TMP is finally finished, and this route could now be considered for inclusion in the route system.

XI. Shavano

The Organizations are recommending Alternative C for the Shavano Area. Keeping 1002, 1030, and 1066 open for public use will help balance the need for access in this area and help control camping and the numerous interconnected routes.

Thank you for your consideration,

Marcus Trusty
CORE President/Founder

Chad Hixon
TPA Executive Director

Scott Jones
COHVCO Authorized Representative

 

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