Archive | April, 2023

Bureau of Land Management
Moab Field Office
82 East Dogwood
Moab, UT 84532
Attention: Camping Proposals

 RE: Managing Camping within Labyrinth Rims/Gemini Bridges SRMA (DOI-BLM-UT-Y010-2021-0094-EA)

Dear BLM Planning Team:

Please accept this correspondence from the above organizations as our official comments regarding the Labyrinth Rims/Gemini Bridges camping proposal. In addition to being a premiere destination for motorized trails, this area is renowned for dispersed camping that should be managed carefully.

1. Background of Our Organizations

 In our comments, the “Organizations” will refer to the following four groups:

Colorado Off Road Enterprise (CORE) is a motorized action group based out of Buena Vista Colorado whose mission is to keep trails open for all users to enjoy. CORE achieves this through trail adoptions, trail maintenance projects, education, stewardship, outreach, and collaborative efforts.

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.

Ride with Respect (RwR) was founded in 2002 to conserve shared-use trails and their surroundings. Since then, over 750 individuals have contributed money or volunteered time to the organization. Primarily in the Moab Field Office, RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands. RwR has also participated greatly in the Moab Resource Management Plan 2008 revision and subsequent amendments.

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 necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands to diverse multiple-use recreation opportunities.

2. Introduction

The updated Draft Environmental Assessment (Draft EA) has begun to incorporate the Organizations’ comments from June 22nd, 2022, but more work is needed to ensure the success of limiting dispersed camping to designated sites. Most notably the public deserves a chance to comment on an actual proposal of which sites would be designated open or closed in this camping mecca. Nevertheless the Organizations continue to support the other three proposals (requiring a portable toilet, fire pan, and bringing one’s own firewood instead of cutting/gathering), and suggest establishing those supplementary rules without delay. In fact, those supplementary rules could apply to a larger geographic area, provided that wood collection is still accommodated where appropriate.

3. The socioeconomic impact of dispersed camping should be more thoroughly analyzed.

Unless the BLM commits to providing an adequate quantity and quality of dispersed campsites to meet current and future interest, then the agency should more thoroughly analyze the activity’s social benefits and economic impact in order to make informed tradeoffs. Even if campers tend to contribute less than tourists who choose lodging, the cumulative contribution of campers is substantial. Even at the furthest reaches of the planning area, some campers frequent Moab or Green River for supplies including some dining at restaurants, and most of their money comes from out of state. Dispersed camping opportunities remain one of the main draws to visit Moab.

4. More work is needed to inventory all existing campsites.

The inventory of 356 existing campsites is a great start, but the planning area includes well-over a hundred more sites that have each been used for camping many times over many years. These missed sites tend to be further from graded roads, which are particularly valuable to growing segments like overlanding, so it warrants more expansive inventory work. Missed sites also tend to be lower in impact, which should be encouraged rather than overlooked, so it warrants repeated inventory of the same area for detecting sites when they’re in use. For example, an overlanding camp may appear to be merely a wide spot where someone parked, as the camping activity is contained to the vehicle. Thus, along with the opportunity to comment on a complete inventory, there ought to be opportunity to review the method of inventory. Also note that, if the Labyrinth Rims Travel Management Plan (TMP) is done before this camping plan, then the campsite inventory should inform the TMP so that access to campsites is considered. Granted, routes could be reopened through subsequent TMP amendments, but it’s a lot less work to simply leave a route open than to close it only to reopen it later.

5. More work is needed to estimate current use levels.

To inform planning, the BLM should estimate how many campsites are used at the busiest time of year. A simple method would be to count the total number of vehicles that appear to be camping during the mornings or evenings of popular days like Fridays or Saturdays in April or May. Different parts of the planning area could be counted on different dates so long as all counting occurs at popular times in order to capture peak use.

6. A proposal of which sites to designate open or closed should be provided for public review.

The Organizations appreciate the BLM’s stated intention to “remove only those campsites which pose unacceptable resource damage” and the agency’s stated criteria for protecting various resources, but more information is needed for the public to meaningfully engage in this planning process. Less information may have sufficed in previous planning efforts, but this area contains the last remaining dispersed campsites near Moab, making these sites greater in value and greater in number than the sites in those previous plans. Showing which sites the BLM proposes to designate open or closed will surely generate a lot of feedback, including points that the BLM wouldn’t otherwise consider. These points may involve assessing or mitigating the campsite impacts to natural and social resources. Knowing the qualities of each site that are important to campers (e.g. views, accessibility, solitude versus connectivity to neighboring sites, etc.) is an important factor in determining whether the site is designated or perhaps replaced by a new site that can provide similar qualities in a more appropriate location. Inviting input on proposed site designations could also increase buy-in for whatever is eventually decided. Last year the BLM’s Royal Gorge Field Office invited comments on its proposal that specified which dispersed campsites would be designated open or closed for free camping, which is why this year’s final decision on the project garnered broader support.

On the face of the Draft EA, it is unclear whether the BLM will, as part of this EA and its resulting Decision Record, actually decide which of the inventoried campsites will be designated as open. Some parts of the Draft EA suggest that the BLM will so decide. See, for example, the Draft EA Introduction (underlines added):

The Bureau of Land Management (BLM) Moab Field Office (MFO) proposes to manage camping by designating campsites within a 120,037-acre area of the Labyrinth Rims/Gemini Bridges Special Recreation Management Area (SRMA)

Also see Section 2.1 Proposed Action Alternative A (underlines added):

In order to manage camping and recreation/uses, the BLM proposes the following rules that would apply year-round: 1. Camping on BLM-administered public lands within the project area would be limited to designated campsites or developed campgrounds. These campsites would be located where resource impacts are minimal.

Also see Section 2.2 Alternative B – No Action Alternative (underlines added):

The BLM would not manage camping opportunities by designating campsites on 120,037 acres of the Labyrinth Rims/Gemini Bridges SRMA [implying that the Proposed Action Alternative A would designate campsites]

Yet other parts of the Draft EA suggest that the BLM will not so decide. See, for example, the following language in Section 2.1 following sub-paragraph 4 (underlines added):

At the conclusion of the EA process, the BLM would seek to establish a Supplementary Rule (through publication in the Federal Register, in accordance with 43 CFR 8365.1-6) governing camping within the 120,037-acre area. Following the establishment of Supplementary Rules, campsites would be chosen for designation following an interdisciplinary team process. Existing dispersed campsites would first be inventoried.

These contradictory provisions render the EA ambiguous on the whole, risking an “arbitrary and capricious” IBLA or Court finding. Better for the BLM to resolve the ambiguity by having the draft clearly and unambiguously direct that no actual open-or-closed campsite designations will be decided as part of this EA process.

To further ensure compliance with the public participation requirements of NEPA as well as FLPMA Section 202 and its associated regulations, the BLM should specify and confirm now, in this draft EA, that it will provide the opportunity for the public to review and comment on a proposal of which sites to designate open and closed. The public deserves to see and have opportunity to comment on the BLM’s open/closed proposal, before the BLM makes a final decision. This is fundamental to not only a fair and open public NEPA process, but a fair and open to FLPMA Section 202 planning process. The inventorying of the planning area campsites (something that apparently has already been done despite the above highlighted language suggesting the inventory would not happen until after the EA process) is part of the FLPMA Section 201 process of inventorying of planning area resources. Subsequent determinations on which of those inventoried campsites shall remain open is part of the FLPMA Section 202 process of planning how to manage those inventoried campsites. Section 202 processes are, under FLPMA and associated regulations, a public process. FLMPA at 43 U.S.C 1712(f) states:

(f) Procedures applicable to formulation of plans and programs for public land management. The Secretary shall allow an opportunity for public involvement and by regulation shall establish procedures, including public hearings where appropriate, to give Federal, State, and local governments and the public, adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of the public lands.

This means, at the very least, that the public has an obvious right to comment on proposed open/closed campsite planning decisions, and the BLM is obligated to consider in good faith those public comments. Once the open/closed campsite planning decisions have been made, then the actual management of the inventoried campsite areas, according to their open or closed planning level designations, are deemed “management decisions and actions” for FLPMA and NEPA purposes.

7. A proposal of buffer distances around campgrounds should be provided for public review.

The Organizations acknowledge the utility of keeping dispersed campsites a certain distance from developed campgrounds so dispersed campers don’t poach the campground facilities. However the BLM should openly plan for this buffer so the public can provide input. Ideally the BLM would also openly anticipate the development of any additional campgrounds in order to designate dispersed sites that would be compatible with such development in future. The Draft EA mentions developing a campground on Mineral Bottom Road, but also the 2008 RMP provides for a campground to be developed around Bartlett Wash, and any others should be openly discussed to set the stage for clustered sites surrounded by buffers where appropriate.

8. To minimize displacement, extend the planning area to encompass all comparable terrain that is desirable for camping.

All around Moab, piecemeal camping restrictions have caused a net increase in negative impacts, so it’s far better to plan for the full area where there’s significant camping interest even if doing so would take longer to fully implement. Interim measures could be taken as described later in these comments. Restricting camping in the current planning area is quite likely to displace camping north of the Tenmile Point Road since it’s equally appealing in terms of providing the scenery and shade of red rock formations, and in fact camping north of Tenmile Point Road has increased dramatically since 2008. The Mancos Shale is less desirable and less sensitive to camping impacts, so it makes more sense for the planning area to continue following the Blue Hills northwest to Green River, which would benefit the Orange Trail and Crystal Geyser 4WD trails as well as the Dubinky motorcycle/ATV trails up to Crystal Geyser (not to mention the Athena trail for mountain biking).

9. A proposal of interim management should be provided for public review.

Although it will take longer to more thoroughly analyze and develop a proposal for public review, interim measures could be taken for more immediate action provided that they are also spelled out in the proposal. The process of designating campsites across the whole planning area is likely to take years, but more could be done in the meantime, in addition to more specific education and law enforcement. After all, despite increased education about trail use and waste disposal, there’s been little education on minimum-impact camping around Moab. One option would be to define existing campsites and notify visitors through words and illustrations that vehicle travel and parking is limited to previously-disturbed, barren surfaces within a certain distance from designated routes. If that’s not sufficiently enforceable, the BLM could actually map and mark all inventoried sites, but not until a thorough inventory is complete. The Organizations can understand a sense of urgency, but interim measures would allow the BLM to follow the best process and reach the best decision, which is most important in the long run.

10. Conclusion

The Organizations appreciate the BLM’s initiative to manage dispersed camping. Conserving a high quality and quantity of sites would be key to maintaining the socioeconomic benefits of dispersed camping and preventing the displacement of camping to other areas in an unmanaged fashion. This goal can be reached by more thoroughly analyzing and developing a proposal for public review.

Sincerely,

Clif Koontz
Executive Director
Ride with Respect

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President/Founder
Colorado Off Road Enterprise

Scott Jones, Esq.
Authorized Representative
Colorado Off-Highway Vehicle Coalition

Red Cliffs/Warner Valley Land Exchange
Bureau of Land Management
Stephanie Trujillo, Realty Specialist 3
45 East Riverside Drive
St. George, UT 84790

 Re: Red Cliffs/Warner Valley Land Swap Project #2022389/510

Dear Planning Team Members:

Please accept this correspondence as the vigorous input of the above Organizations with regard to Red Cliffs/Warner Valley Land Swap of the Organizations (“The Proposal”) identified above. The Organizations have been involved in discussions around access areas throughout the region for more than a decade, 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. We remain committed to this presence in ongoing management to protect the globally significant recreational values of Utah BLM lands. The Organizations must initially express shock that this Proposal has even reached scoping as there are SO many basic flaws with the Proposal. The Organizations vigorously assert the Proposal creates more issues than it solves. Many of these failures simply cannot be resolved within the scope of the Proposal, such as the complete imbalance of economic and resource values between the two parcels that are sought to be swapped. The proposed swap also creates many questions outside of the two parcels, mainly are there even parcels with similar resource values where the SRMA usage can be moved to; what are the benefits of these parcels where the SRMA be relocated to that would now have to be addressed; how would this relocation be funded; and what type of timeframe would this require. Even if OHV usage was allowed to remain in the area after the swap was undertaken, how would this usage align with domestic housing immediately adjacent?

Generally, the Organizations support resolution of all concerns created remaining from the creation of the Habitat Conservation Plan (HCP), but we do not believe the current Proposal would provide that type of resolution in any manner. The Organizations submit this Proposal would make the situation worse instead of better. Not only is the swap totally out of balance, the Proposal would force a user group, that has worked hard to partner with interests and move forward collaboratively to improve the community into an ever-smaller area of land despite decades of good faith efforts undertaken by numerous groups to avoid this type of impact. This situation would not resolve conflict, it would create significant conflict now and into the future as globally significant recreational opportunities would be lost and nothing would be provided in exchange. The Organizations submit that the small benefit to a single interest simply cannot be balanced in this situation.

1.      Who we are.

Prior to addressing the specific input of the Organizations on the Proposal, we believe a brief summary of each Organization is needed. 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 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. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. Ride with Respect (RwR) was founded in 2002 to conserve shared-use trails and their surroundings. Since then, over 750 individuals have contributed money or volunteered time to the organization. RwR has performed over 20,000 hours of high-quality trail work on public lands and participated in many planning efforts across Utah. Moab Friends-For-Wheelin’ (MFFW) is a non-profit club founded in 2005 to bring four-wheel drive enthusiasts together and promote the pastime of four- wheeling to the community as well as other enthusiasts. MFFW has volunteered thousands of hours and thousands of dollars to various projects such as trail maintenance and restoration, community service, and effective communication with other four-wheel drive organizations as well as public land managers. Collectively, TPA, CSA, CORE, RwR, MFFW and COHVCO will be referred to as “The Organizations” for purposes of these comments. While we are aware it is unusual for a snowmobile group to comment on a planning effort without snowmobile opportunities, this is an area of global significance to the recreational community and an overwhelming percentage of the international snowmobile community participate in motorized recreation in the summer. These opportunities are nationally recognized opportunities and draw users from all over the country.

2.   The History of the Parcels must be addressed.

 The Organizations are aware of the long and twisted history spanning more than 30 years that has resulted in the current land swap Proposal. The long history of this issue must be relevantly analyzed as the Proposal is doing more than merely protecting habitat and consolidating land management efforts. The entirety of the Proposal allows expansions of adjacent communities and infrastructure but has heavily impacting some private interests and heavily impacted legal users of public lands. Addressing the Proposal without understanding and recognizing the highly divergent path interests have taken subsequent to the Habitat Conservation Plan (HCP) and Congressional National Conservation Area (NCA) designation is troubling. The Organizations are also aware that many of these impacted interests have been provided opportunities to minimize or reduce impacts, such as through bankruptcy actions or land swaps or other efforts to balance interests and impacts. These opportunities have not been pursued.

The OHV community was heavily impacted by the original Tortoise HCP development to allow critical infrastructure for adjacent communities to develop while access to more than 60,000 acres of OHV opportunity area was lost in the HCP. Some of our impacts were mitigated by the additional protections for the Sand Hollow Area that were provided in planning, such as the SRMA designation for management of the area. The OHV community has chosen to accept this situation and move forward with opportunities still available. While the OHV community has chosen to move forward in partnership with communities, it would appear other interests have chosen to continue to pursue original attempts to create personal profits instead of benefitting the community. This is disconcerting as the beneficiary of the currently proposed land swap, who it is our understanding was a secured creditor who acquired title to significant portions of the parcels lost in the HCP in bankruptcy proceedings, is in such a position. The Organizations are aware that commercial lending efforts fail all the time and this is simply a cost of doing business. The Organizations can say with absolute certainty that creditors have a wide range of remedies in bankruptcy proceedings to protect their interests. It is only optional to acquire title to lands that are owned by the debtor, as any creditor can opt to be treated as an unsecured creditor in the proceeding. The creditor chose this path many years ago for reasons only they know, but the decision was theirs. On several occasions since this time, what would appear to be reasonable offers to resolve the creditors situation have been provided by governmental interests. These offers have consistently been declined to do asserted insufficiency by the creditor based on valuations that were highly speculative at best. This history is simply not accurately summarized as consolidation of ESA habitat and streamlining of management efforts.

It is from this position the Organizations would assert that the proposed land swap is a dreadful idea, as the swap would benefit an interest that has created many of their own problems and hugely impact another interest that has chosen to move forward with the post HCP landscape and improve recreation. The SRMA designation and Sand Hollow State Park would be an example of this type of collaboration. Moving this land swap forward is merely reopening old wounds for everyone and further impacts a community of interests that has worked to benefit everyone in the region that lost more resource value than the mere financial loss of the sole beneficiary of the swap. In a further twisting of an already painful situation many of the benefits that the developer is basing their land value on, such as the availability of the State Park to possible home sights, are only the result of subsequent collaborations undertake by the community. The Organizations submit that such a result would be completely unacceptable based on simple equity and while we understand the situation that the HCP has placed many interests in, replicating previous failures will not reduce problems in the long run but make them worse.

3.   Basic information in the scoping notice is not provided.

The Organizations are very concerned that basic information on many questions is simply not provided in the scope notice. Is the intent to perform an EA or EIS for this project? This is basic information that must be provided to the public to allow the public to meaningful comment as part of the scoping process. We vigorously assert that with the long and twisted history of the proposed swap the wide range of interests directly and indirectly impacted by the Proposal can only be addressed with an EIS.

4.  The comically imbalanced size of the parcels is problematic factually.

Prior to addressing the various legal requirements of a land swap to be complied with by the BLM, the Organizations must vigorously state that the proposal is simply shockingly out of balance in every way possible. Not only are the comparative sizes of the parcels out of balance, any factors that could be used to greatly increase the value of the smaller parcel are almost identical and, in many ways, the restrictions on usage drive the balance of values even further apart. Could we envision a situation where 85 acres of hugely valuable, accessible land would be a similar value to a much larger land locked inaccessible piece of land that could never be developed. We are unable to understand a market where this would be a viable position but it could happen.

Thankfully we are not in this situation as the size, access and developability of the parcels clearly favor the SRMA parcel. In the Proposal, market value factors such as this drive the values further apart, as the 85-acre parcel within the NCA (Hereinafter referred to as the NCA parcel.) is Congressionally prohibited from development and is functionally landlocked by other adjacent property interests. Roads simply could never be built to provide access without eminent domain of adjacent private property interests. This lack of access and Congressional Restrictions are the reason that the current owner of the property is seeking the transaction.

While the NCA is almost impossible to access legally and probably will remain so for the foreseeable future, the 1050 acres in the SRMA (Hereinafter referred to as the SRMA Parcel) is far more accessible. While the SRMA parcel does have issues of its own that would need to be resolved, these are significantly less than NCA parcel that are sought to be swapped. Again, questions of factual accuracy in market value must be reconciled, and based on the Scoping notice, we do not believe can be reconciled. Any assertion of equity would simply lack factual basis, even when allegations of ESA benefits are overly weighted. While many may assert ESA habitat is priceless this type of position is simply not factually viable.

The Organizations are aware there are extensive legal requirements that must be complied with in the planning efforts for the BLM addressing land swaps, withdrawals and disposals even for the alleged benefit of endangered species. These legal requirements are generally summarized as asking if the swap is in the public good? Identifying the public good extends far beyond mere economic values. When these requirements are reviewed in detail, these requirements are a major barrier to the Proposal as many of the reasons that are sought to be negatively impacting the NCA parcel would also greatly diminish the value of the SRMA parcel sought to be swapped. While certain interests would like to base the swap on previous values of the NCA parcel due to its possible development value at that time and prior to infrastructure changes and development flexibility that improved the SRMA parcel, this is simply not realistic. Time has passed and decisions have been made but statutory requirements require equality of market value.

Federal law clearly identifies that market value at the time of the swap, withdrawal or disposal, is the standard of comparison for equality of values. The Code of Federal Regulations clearly outline the provisions on the market value provide as follows:

“(a) In estimating market value, the appraiser shall:
3) Include historic, wildlife, recreation, wilderness, scenic, cultural, or other resource values or amenities that are reflected in prices paid for similar properties in the competitive market;”¹

Throughout the long history of these parcels, having the parties come to any type of agreement on the value of the parcels to be withdrawn and disposed of has been a major challenge. The Organizations vigorously assert that normal market factors such as water and electricity, and rights of way to access the NCA parcel are HUGELY speculative at best after the NCA passage. Recreational economic values are well established and are protected by the RMP. Even without the RMP provisions, there are no Congressional restrictions in place on the SRMA parcel making this parcel FAR more valuable than the NCA parcel when comparing an acre for acre type of exchange. This imbalance is a problem that simply could not be resolved sufficiently in the current proposal to allow the exchange to move forward.

5(b). Identified resource values are badly out of balance and could not be corrected without passing more federal laws.

Federal regulations require review of swaps to determine if the public good is advanced by the swap. As the Organizations have noted previously, we have major concerns over the inequality of the economic valuation of the Proposal. Our concerns expand significantly when the resource value of these parcels is compared as the NCA parcel has marginal values at best to the public while the SRMA parcel has immense value to the public as it is a globally recognized recreational destination. Many in the OHV community would correctly assert the SRMA parcel provides recreational opportunities that are priceless in Southern Utah, given the many political developments that have occurred since the original designation of the HCP. We have to believe many of the recreational boat users on the adjacent reservoir would assert their recreational values are priceless as well and those boating interests could be negatively impacted by the swap as well.

The CFR provides a very broad definition of resource values as follows:

“Resource values means any of the various commodity values (e.g., timber or minerals) or non-commodity values (e.g., wildlife habitat or scenic vistas), indigenous to particular land areas, surface and subsurface.”²

Again, the Code of Federal Regulations requires resource values to be reviewed in determining the value of the public interest in any disposition or exchange as follows:

“Determination of public interest. The authorized officer may complete an exchange only after a determination is made that the public interest will be well served. When considering the public interest, the authorized officer shall give full consideration to the opportunity to achieve better management of Federal lands, to meet the needs of State and local residents and their economies, and to secure important objectives, including but not limited to: Protection of fish and wildlife habitats, cultural resources, watersheds, wilderness and aesthetic values; enhancement of recreation opportunities and public access; consolidation of lands and/or interests in lands, such as mineral and timber interests, for more logical and efficient management and development; consolidation of split estates; expansion of communities; accommodation of land use authorizations; promotion of multiple-use values; and fulfillment of public needs. In making this determination, the authorized officer must find that: In making this determination, the authorized officer must find that:

(1) The resource values and the public objectives that the Federal lands or interests to be conveyed may serve if retained in Federal ownership are not more than the resource values of the non-Federal lands or interests and the public objectives they could serve if acquired, and

(3) The intended use of the conveyed Federal lands will not, in the determination of the authorized officer, significantly conflict with established management objectives on adjacent Federal lands and Indian trust Such finding and the supporting rationale shall be made part of the administrative record.”³

BLM regulations explicitly require the ability of the public to access parcels to be addressed as part of the determination of resource value as follows:

“Access
Evaluate the need to reserve public access, easements, or other access rights on the Federal land. This is critical information that the ASD appraisal staff needs to arrive at a market value opinion. Access, or lack thereof, may also be an important factor to address as part of considering the merits of the resource values and public benefits.”⁴

Given the numerous factors that the CFR requires to be balanced in determining the public good, any assertion of the Proposal merely addressing Tortoise habitat and ease of management interests is problematic. In reviewing these requirements, there can be no argument that the Proposal is badly out of balance in addressing resource values such as recreation and multiple uses and should not proceed merely based on the imbalance of the public interest in the transaction. While the transaction may benefit a small parcel owner in the NCA, the loss of the SRMA parcel would reopen old issues for a huge portion of the community and create long term conflict between the users of public lands and subsequent home owners that many never be able to be resolved while closing recreational values that are globally valued. There is simply no way that the NCA parcel could ever be thought to have the same resource value as the SRMA parcel that is sought to be exchanged. Even if the resource value for Desert Tortoise is reviewed in isolation, the value of the NCA Parcel as desert tortoise habitat is badly out of balance when compared to the Desert Tortoise habitat on the SRMA parcel that would be lost if these areas were developed into homes.

5(c) Legal protections for recreation and species habitats must be addressed as well in determining the public benefit.

When the Congressionally protected resource values of the two parcels are compared, there is a horrible imbalance as well as habitat for the Tortoise has been subsequently increased in value with the designation of the NCA. The Organizations are also aware that the initial protections against developments provided for in the HCP have expanded into Congressional Protection against those types of activities as the HCP was converted to a National Conservation Area with the Passage of the Omnibus Lands Bill of 2009. This legislation created the Red Cliffs National Conservation Area.⁵ It is the Organizations vigorous assertion that the SRMA parcels protected uses result in any attempt to bring balance to NCA parcel that prohibits this usage entirely a factual impossibility.

The Code of Federal Regulations describes in great detail how Congressional designations must be addressed in any land swap as follows:

“Congressional designations. Upon acceptance of title by the United States, lands acquired by an exchange that are within the boundaries of any unit of the National

Forest System, National Park System, National Wildlife Refuge System, National Wild and Scenic Rivers System, National Trails System, National Wilderness Preservation System, or any other system established by Act of Congress; the California Desert Conservation Area; or any national conservation or national recreation area established by Act of Congress, immediately are reserved for and become part of the unit or area within which they are located, without further action by the Secretary, and thereafter shall be managed in accordance with all laws, rules, regulations, and land use plans applicable to such unit or area.”⁶

BLM regulations implementing these CFR provisions expand on the requirements surrounding withdrawal of areas with special use designations as follows:

“4. Conformance with Land Use Plans. The decision must include a land use plan(s) conformance determination supporting the disposal of the Federal land and acquisition of the non-Federal land (43 CFR 2200.0-6(g)). It is often appropriate to also summarize from the environmental documentation how the decision interfaces with state and local land use plans.”⁷

The NCA designation made by Congress specifically identifies how motorized vehicles may be used in the NCA as follows:

(3) MOTORIZED VEHICLES. —Except in cases in which motorized vehicles are needed for administrative purposes, or to respond to an emergency, the use of motorized vehicles in the National Conservation Area shall be permitted only on roads designated by the management plan for the use of motorized vehicles.⁸

While motorized usage is allowed in the NCA it is at a very low density and only on roads. Open riding designations are prohibited by Congress.

When the significant recreational restrictions of the NCA are compared to the SRMA designations the conflict is immediate. The intended recreational usage of SRMA is clearly laid out in the BLM St. George Field Office RMP as follows:

“a) BLM will work with local and state agencies in developing recreation plans for lands surrounding the proposed Sand Hollow reservoir once it is constructed. Such plans may provide for staging areas, parking, information displays, and other visitor facilities needed to accommodate increased recreation and OHV use expected to occur throughout the immediate area.” ⁹

The St. George FO RMP takes the additional important step of clarifying why the SRMA designation is being put in place as follows:

“e) Generally, lands within this SRMA not already identified in this Plan for disposal or included in current exchange agreements will be maintained in public ownership to provide long-term stability for user groups such as the OHV community who, as a result of urbanization and land use restrictions, have lost much of their traditional open use areas.”¹⁰

The protections of multiple uses initially provided by the SRMA designation were then further implemented in partnership with the community and Utah State Parks, which resulted in the Sand Hollow State Park. The elevation of all forms of multiple use recreation at somewhat intense levels, is specifically identified in the State Parks Management plan for sand hollow as follows:

“The BLM’s St George Resource Management Plan recognized that Sand Hollow State Park could serve as a staging area for equestrian and off-highway vehicle (OHV) use on the BLM lands. The BLM contributed funds for the construction of a staging area near the access tunnel for OHV users, the Sand Pit campground, three day-use sites with restrooms, and a maintenance building. These facilities, along with facilities already built and funded by the Division and WCWCD, were identified as needs in the 2001 management plan.”¹¹

The hugely successful nature of the multiple use nature of the park to local communities is clearly demonstrated by the following statement in the 2010 Sand Hollow State Park RMP as follows:

“Data collected at the park show that Sand Hollow State Park receives between 150,000 to 200,000 visitors annually. The park has been popular with local residents since its opening in 2003.”¹²

The Organizations vigorously assert that the resource values identified for the NCA area and SRMA area are utterly unreconcilable in terms of experience for the recreational users. These values have been repeatedly identified, planned for and protected in the SRMA parcel for decades. The value that the local communities have placed on these opportunities is clearly identified by the large numbers of visitation to the State Park since its inception. These visitation numbers have continued strong growth trends as Sand Hollow State Park is now a globally recognized recreational opportunity. These levels of activity would be entirely inconsistent with the NCA requirements for exceptionally limited levels of visitation on the management of the NCA parcel.

6.   Is the SRMA parcel even legally available for the swap to occur?

The Organizations are aware that portions of the SRMA were identified by the BLM in the St George RMP as available for possible disposal as required by various federal legal requirements. It is our position that the long-term lease of the area by the State of Utah has satisfied this possibility of disposal. The Organizations must question any assertion that once a parcel is identified for possible disposal does not mean the parcel remains available for repeated swap until the next RMP is completed. The Organizations submit that once a swap is undertaken the ability to dispose of the parcel has been removed until there is some reason to review the status of the decision, such as the termination of a lease or a significant change in condition in the area.

We are aware that Courts have taken a very broad interpretation of the availability of lands for disposal under the Recreational Purposes Act. Courts have found that the mere inventory of the parcel for possible wilderness designation is sufficient to stop withdrawal of the lands. ¹³ The Ninth Circuit held as follows:

“The Recreational and Public Purposes Act provides: “The Secretary of the Interior upon application filed by a duly qualified applicant … may … dispose of any public lands to a … county … for any public purposes  ” 43 U.S.C. § 869. The Government argues that the court should not order conveyance because section 869 vests discretion in the Secretary whether to convey lands, even when the lands are eligible and a qualified applicant has applied for them. We need not decide whether the Secretary has unfettered discretion under section 869. It is clear that Congress, in providing that the Secretary “may” dispose of lands, granted him some measure of discretion. Therefore, our review of the BLM’s decision not to grant the County’s application is limited to a determination whether it was an abuse of discretion. 5 U.S.C. § 706(2)(A).

In this case, the BLM did not abuse its discretion in deciding to await Congress’ determination of wilderness status. It would undermine the statutory scheme relating to potential wilderness lands to hold that the Secretary had to grant the County’s application here. The district court’s decision not to order conveyance must be affirmed.”¹⁴

The Organizations can see no reason why this broad scope of authority would change based merely on the reasoning for the decline to undertake the land swap. Clearly the long-term lease of any portion of the parcel, in a manner consistent with statutory requirements, to be withdrawn is a more significant interest in the property than a possible Wilderness designation at some time in the future. The Organizations would vigorously assert that BLM should state the lands are no longer available for swap and simply move on. There are simply too many other competing interests for BLM time and resources to even review the swap as it lacks community support, a clear public interest and only benefits a very small portion of the community.

7.   The chilling effect on the BLM ability to lease lands will be negatively impacted by closing a state park that was functionally just completed.

 The Organizations would urge the BLM to take a much longer interpretation of benefits of the swap being in the public interest and review the long-term impacts to BLM operations in the region more generally. The Proposal will have a major chilling effect on the BLM’s ability to undertake any land swap The Proposal will simply set a HORRIBLE precedent on the value of planning and agreements on major projects, such as long-term leases of lands with the BLM. The Organizations believe this issue alone should be the basis for concern and declining to pursue the Proposal as the Proposal would significantly alter the access to a State Park that was developed in partnership with BLM very recently. This initiative took years of volunteer effort and significant funding to be completed as entirely based on the defensibility of the terms of the lease for the State Park lands. The State of Utah has developed an extensive plan for the long-term sustainable use and development of this park in a manner consistent with the SRMA. These are relationships that would have irreparable harm done to them if the Proposal were to move forward.

The Proposal takes these years of effort and significant funding and voids that effort. This will have a huge chilling effect on any groups that may seek to develop similar resources based on long term leases with the BLM throughout the region. Why would other users or interests undertake such an effort if the benefits of this effort could be removed at any time?

8.   Conclusion.

The Organizations must initially express shock that this Proposal has even reached scoping as there are SO many basic flaws with the Proposal. The Organizations vigorously assert the Proposal creates more issues than it solves. Many of these failures simply cannot be resolved within the scope of the Proposal, such as the complete imbalance of economic and resource values between the two parcels that are sought to be swapped. The proposed swap also creates many questions outside of the two parcels, mainly are there even parcels with similar resource values where the SRMA usage can be moved to; what are the benefits of these parcels where the SRMA be relocated to that would now have to be addressed; how would this relocation be funded; and what type of timeframe would this require. Even if OHV usage was allowed to remain in the area after the swap was undertaken, how would this usage align with domestic housing immediately adjacent?

Generally, the Organizations support resolution of all concerns created remaining from the creation of the Habitat Conservation Plan (HCP), but we do not believe the current Proposal would provide that type of resolution in any manner. The Organizations submit this Proposal would make the situation worse instead of better. Not only is the swap totally out of balance, the Proposal would force a user group, that has worked hard to partner with interests and move forward collaboratively to improve the community into an ever-smaller area of land despite decades of good faith efforts undertaken by numerous groups to avoid this type of impact. This situation would not resolve conflict, it would create significant conflict now and into the future as globally significant recreational opportunities would be lost and nothing would be provided in exchange. The Organizations submit that the small benefit to a single interest simply cannot be balanced in this situation.

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), or Clif Koontz (435- 259-8334 / clif@ridewithrespect.org).

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
Executive Director
Trails Preservation Alliance

Clif Koontz
Executive Director
Ride with Respect

Marcus Trusty
President/Founder
Colorado Off Road Enterprise

Jeff Stevens
President
MOAB Friends for Wheelin

¹ See, 43 CFR 2201.3-2

²See, 43 CFR 2200.0-2(u)

³ See, 43 CFR 2200.0-6(b)

3 See, 43 CFR 2200.0-6(b) 4 See, BLM manual H-2200-1 LAND EXCHANGE HANDBOOK at pg. 6-6.

⁵ See, §1974 of Public Law 111-11

⁶ See, 43 CFR 2200.0-6f

⁷ See, H-2200-1 Land Exchange Handbook pg. 9-3

⁸ See, Public Law 111-11; Omnibus Lands Bill of 2009 @ §1974 (e)(3)

⁹ See, St. George BLM Field Office Resource management plan; March of 1999 at pg. 2-42

¹⁰ St George FO RMP at pg. 2.42

¹¹ See, Utah State Parks; Sand Hollow State Park Resource Management Plan; April 2010 at pg. 15.

¹² See, Utah State Parks; Sand Hollow State Park Resource Management Plan; April 2010 at pg. 15.

¹³ See, Humboldt County v US; CA Nev. 1982; 684 f2d 1276(1982)

¹⁴ See, Humboldt County at pg. 1285.

Federal Highways Administration
Via Portal @ http://www.regulations.gov, Docket: DOT-OST-2022-0124.

RE: Notice of Proposed Waiver of Buy America Requirements for De Minimis Costs, Small Grants, and Minor Components – Docket # DOT-OST- 2022-0123

Dear Sirs:

Please accept these comments as a supplement to the comments submitted by the Organizations regarding the original proposal and its relationship to the Recreational Trails Program. (“RTP”).  As such we are not repeating our Organizational specific descriptions as you are aware of our general Organizational missions.  We are also aware that many of our groups are also working with their state RTP program managers in development of additional state comments. Our membership has participated in almost every phase of the RTP process, from developing grants, to scoring grants, to meeting with legislators to obtain full funding for the RTP program. While we are aware that this comment period is limited to manufactured products, we are addressing the entirety of our concerns around the BABA Proposals. Part of our concerns center on the fact that in defining manufactured products as a portion of an entire project, significant complications can arise. The Organizations must address a preliminary concerning the scope and basis for waivers for the RTP program generally.  The public interests and benefits of the RTP program have been repeatedly and strongly identified by Congress since its inception in 1991 and as a result the Organizations must question. The RTP program is rather unique in federal highways programs as it is funded through the federal highway users fuel taxes but is managed with objectives now identified for the National Park Service.  While the management may be shared for the program, the waiver authority is based on the funder of the program, so the NPS lacks authority to issue such a waiver.  The Organizations believe the long and specific history of the Congressional findings for the RTP program warrant a waiver be issued on a public interest basis as well as the other statutory basis outlined previously.

The Organizations are concerned that the historical strength of the RTP Program has been its flexibility in creating public benefit in a wide variety of ways such as directly tangible benefits, such as buying equipment or supplies and the fact that the granting process is reasonably flexible.  RTP also provides significant less tangible benefits such as getting underserved youth populations outside and engaged in public stewardship. These are components of the RTP program that are rather unique within the scope of FHWA operations. While the Organizations support BABA, we are also aware that FHWA has provided VERY limited waivers for BABA and previously Buy American standards when compared to other agencies.  This has proven to create significant friction between local administrators, grant managers and grant applicants.  It would be the Organizations desire that the BABA provisions are developed in a manner that reduces conflict rather than expands it.

The Organizations are also aware that the Made in America Office (“MAIO”) is being formed currently. Given that the MAIO is seeking to achieve consistency and timely issuance of waivers and processes across agencies.[1] The Organizations submit that the creation of the MIAO should be a concern as FHWA policy appears to significantly conflict with one of the premises of the office, mainly that waivers are available for projects and efforts.   We would urge FHWA to be consistent as much as possible with other agencies simply for efficiencies, this type of consistency will be important for the small nonprofits that are commonly applying for these grants. They simply lack the time and resources to adjust projects midstream due to changes in accounting and grant administration guidance.

1(a) Congress has specifically recognized the public benefit of the Recreational Trails Program for decades.

The Organizations must address the rather unusual nature of RTP within Federal Highways as this unique status is highly relevant to our comments.  RTP is a comanaged FHWA program managed to US Park Service goals and objectives, with the funding stream coming from the federal highways fuels taxes. While the program maybe comanaged with NPS, waivers are issued by the funding agency and as a result must be issued by FHWA.

The Congressional findings regarding the RTP program are highly relevant to the public interest waivers that can be issued under the Infrastructure Act.  RTP was originally enacted by the Intermodal Surface Transportation Act of 1991, which clearly laid out Congressional findings regarding the public benefits of RTP Program as follows:

“(a) IN GENERAL.—The Secretary, in consultation with the Secretary of the Interior, using amounts available in the Fund, shall administer a program allocating moneys to the States for the purposes of providing and maintaining recreational trails.”[2]

The Intermodal Surface Transportation Act of 1991 also specifically identified that the goals of the RTP program were to be managed to the goals and objectives established in the Statewide Comprehensive Outdoor Recreation Plan required by the Land and Water Conservation Funds.  The LWCF program is administered through the National Park Service to the goals and objectives of the SCORP.  The mandatory nature of this co-management relationship is outlined as follows:

(b) STATEMENT OF INTENT.—Moneys made available under this part are to be used on trails and trail-related projects which have  been planned and developed  under the otherwise existing laws, policies and administrative procedures within each State, and which are identified in, or which further a specific goal of, a trail plan included or referenced in a Statewide Comprehensive Outdoor Recreation Plan required by the Land and Water Conservation Fund Act.[3]

When the Land and Water Conservation Fund was established in 1964, Congress clearly and directly the LWCF program has Congress clearly identified their findings of the Program serving the public interest in §460l of the Act as follows:

“Congressional findings and declaration of policy. The Congress finds and declares it to be desirable that all American people of present and future generations be assured adequate outdoor recreational resources, and that it is desirable for all levels of government and private interests to take prompt and coordinated action to the extent practicable without diminishing or affecting their respective powers and functions to conserve, develop and utilize such resources for the benefit and enjoyment of the American People.”

The clear Congressional findings regarding the compelling public interests served by the LWCF program were repeated in 460l-4 as follows:

“§460l–4. Land and water conservation provisions; statement of purposes

The purposes of this part are to assist in preserving, developing, and assuring accessibility to all citizens of the United States of America of present and future generations and visitors who are lawfully present within the boundaries of the United States of America such quality and quantity of outdoor recreation resources as may be available and are necessary and desirable for individual active participation in such recreation and to strengthen the health and vitality of the citizens of the United States by (1) providing funds for and authorizing Federal assistance to the States in planning, acquisition, and development of needed land and water areas and facilities and (2) providing funds for the Federal acquisition and development of certain lands and other areas.”

In 2014 the historical findings of Congress regarding LWCF and RTP was consolidated into 54 USC 200101[4], which again reaffirmed the Congressional findings of a public benefit if the LWCF and RTP programs as follows:

“Congress finds and declares it is desirable—

(1) that all American people of present and future generations be assured adequate outdoor recreation resources; and

(2) for all levels of government and private interests to take prompt and coordinated action to the extent practicable without diminishing or affecting their respective powers and functions to conserve, develop, and utilize those resources for the benefit and enjoyment of the American people.”

In this update and clarification of numerous statutory requirements affecting the NPS, Congress also clearly stated their intent in undertaking this revision and clarification as follows:

“…the intent is to conform to the understood policy, intent, and purpose of Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections…”[5]

The Organizations vigorously assert that the provisions of 54 USC 200101 were strengthened by Congress in response to the almost ongoing addition of programmatic barriers and additional documentation on many of the programs covered by these provisions.  These barriers had resulted in some rather public failures of the Agency to provide basic service and this revision was created to assure this did not happen again.  Again, we submit that the RTP program specifically, and the LWCF program also, were created with a specifically identified public benefit and as a result should be provided a waiver simply based on the public benefit waiver identified in Infrastructure Act.  The Organizations are unable to envision how a waiver for of the RTP program would not be within the scope of a government action to conserve, protect and utilize the RTP program benefits previously provided in 54 USC 200101.

The Organizations must identify the immense amount of overlap between the RTP/LWCF management issues that were addressed with Public Law 113-287 and strengthening of 54 USC 200101 and the concerns that are to be addressed with the issuance of waivers under the Buy America provisions of the Infrastructure Act. The basis for FHWA issuance of public interest waivers is clearly identified by the OMB Memo m-22-11 as follows:

“Public Interest Waivers

A waiver in the public interest may be appropriate where an agency determines that other important policy goals cannot be achieved consistent with the Buy America requirements established by the Act and the proposed waiver would not meet the requirements for a nonavailability or unreasonable cost waiver. Such waivers shall be used judiciously and construed to ensure the maximum utilization of goods, products, and materials produced in the United States.³³ To the extent permitted by law, determination of public interest waivers shall be made by the head of the agency with the authority over the Federal financial assistance award.³⁴

Public interest waivers may have a variety of bases. As with other waivers, they should be project-specific whenever possible, as what is in the public interest may vary depending upon the circumstances of the project, recipient, and specific items, products, or materials in question.

Federal agencies may wish to consider issuing a limited number of general applicability public interest waivers in the interest of efficiency and to ease burdens for recipients. The agency remains responsible for determining whether such a waiver is appropriate to apply to any given project: the Made in America Office will not review each application of such a waiver.”[6]

It is significant to note that there are no prohibitions on the issuance of waivers, and compared to previous guidance the OMB process outlines is a relaxed standard for the issuance of waivers.  The OMB memo further outlines several other basis for waivers that would be at least partially applicable to the RTP program. Given the repeated Congressional recognition of the immense public interests that flow from the RTP program generally and the compelling need to avoid governmental barriers to its application, the Organizations vigorously assert the RTP program has a very strong Congressional provision for the issuance of the waiver. Without the issuance of a public benefit waiver, the RTP program would be in direct violation of existing Congressional mandates to streamline the administration of the RTP and LWCF programs.

1(b)The RTP program provides unique public benefits to communities which Congress has previously sought to protect from undue barriers to the Program’s implementation.

The Organizations are aware that almost every project that FHWA is involved with provides some level of public benefit but almost none of these efforts are comanaged with the National Park Service or subject to the provisions of 54 USC 200101.  The RTP program is unique in that the level of public benefit that is provided.  While the awareness of RTP efforts to maintains trails is one of the cornerstones of the RTP program, the indirect public benefits of the program extend further than just trail maintenance. The RTP program gets underserved communities outside, engages with the Youth Corp to use these resources to maintain public access.  Very few FHWA can identify this type of benefit from their efforts.

The RTP funding program also provides significant fire protection to western communities as these routes that are maintained are also providing access for fuels mitigations and firefighting efforts.  This benefit is immense as hotshot crews are able to engage with firefighting activities and not have to cut trails and roads open to get to the areas where they need to be working.  RTP provides resources that firefighters are not able to develop in their timeframes, such as bridges over creeks and mapping resources.  RTP can provide a bridge that allows firefighters to simply get closer to the areas they need to be working in.  Building bridges simply is not a viable tool for firefighters who are engaged in responding to a wildfire.

Again the Organizations must note that the strength of the RTP program extends far beyond normal FHWA concerns and any overhead is simply not an additional cost that can be carried through.  These are highly competitive projects and efforts that are driven by volunteers and include concerns such as engaging youth corps and underserved communities.  RTP can continue to serve as a catalyst for development of nonprofit partners to leverage RTP funds or it can serve as a barrier to the existence of these groups. We vigorously urge FHWA to allow RTP to continue to serve in its intended role with the issuance of waivers for projects that allow organizations to continue to function.

1(c)  RTP is a catalyst for on the ground efforts that benefit the public.

The Organizations are also aware that programmatic motorized partner funding for RTP funds was developed far before RTP was ever imagined.  The same cannot be said for non-motorized activities throughout the Country. We are aware that many focused on nonmotorized efforts are continuing to see the RTP as a catalyst for other efforts. As an example, recently Great Outdoors Colorado announced another $500k in grant funding to leverage the RTP funds in an attempt to stimulate the development of non-motorized crew maintenance efforts similar to the motorized efforts already in place. The availability of RTP money has been an effective catalyst in development of efforts such as this and these efforts cannot be overlooked. While the voluntary registration programs that leverage the motorized portions would continue to function, albeit at a lower funding level, matching efforts such as this would become problematic in the long term as there was no other funding source that would be matched.

The programmatic efforts that have been driven in part by the RTP program are immense, on the motorized side of the Program as many states developed a State OHV registration program either as RTP was being developed or in direct response to the RTP program.  These programs have now far exceeded the value of RTP funding in many states. Many other states have not adopted this model and RTP remains the sole source of funding for motorized activities.  The Organizations hope that the RTP program will continue to serve as an inspiration in these states to take up this model at some point in the future.

2. Tiny projects by FHWA standards are consistently funded and can make a huge difference on the ground.

As the Organizations have noted, many of the public benefits resulting from the RTP Program are unusual in comparison to traditional Federal Highways Projects.  The Organizations are aware that our original submissions were generally focused on the motorized side of the RTP Program, and with these comments we are going to be focused on certain aspects of the non-motorized portions of the RTP program. The Organizations believe it is important to identify that RTP program funds are applied on the allocation of 30% of funding is used for motorized projects, 30% is applied to non-motorized projects and the remaining 40% is applied for diverse projects.  The non-motorized portions of the program are very different in terms of model and function on how the RTP funds are applied on the ground for a variety of reasons, including limited matching funds being directly available and different scopes of funding and resources for projects, and where the projects are even located.

The Organizations are intimately familiar with the exceptionally small size of some projects that are funded through the RTP programs and we can say with absolute certainty that these small grants are some of the most satisfying and effective grants the program receives for everyone involved.  With these small grants, huge benefit to communities can be easily achieved with exceptionally small amounts of money. The Organizations are intimately aware of the fact that every year there are great projects in all phases of the RTP program that are valued at far less than $50k and we are not aware of grants that exceed the minimum acquisition thresholds being funded. The Organizations vigorously assert that it is due to the exceptionally small size of the RTP program, and the even smaller size of these grants is the basis for the Congressional mandate in 54 USC 200101.  The benefits of these efforts are huge and benefit all the public and are provided generally by small nonprofit partners that often simply are unable to absorb any costs or delays in their grant funding.  There is often no other funding for projects available and these groups lack funding to bridge funding shortfalls. Compounding the need for the RTP funding is the fact that an overwhelming portion of these funds are used on federal public lands in an attempt to address huge budget shortfalls for these federal lands managers.

As we have noted, many of the RTP grants provided are exceptionally small, but we are also aware that some samples of grants provided will help clarify these concerns.  These are not large multinational corporations frequently found in FHWA projects but tiny organizations working on public lands to protect resources and improve recreational opportunities for everyone. We have provided a chemical toilet rental grant from the Columbine Ranger District on the Arapahoe Roosevelt National Forest in Colorado, which was funded but only cost $9,000.[7]  While this grant may be small, the benefits to the recreational community and the local community are overwhelming.  This grant will allow a trailhead that has been simply overwhelmed with visitation to remain open and providing quality recreational facilities. Local community members will hugely benefit from a clean and neat trailhead and no longer having to pick up human waste from visitors that were not able to use the current toilets that had just been overwhelmed and were forced to use other less acceptable resources. By providing management and resources for this area, natural resources are protected as the unmanaged human waste is not flowing into local aquifers, and other areas that are totally unacceptable.  If there was ever a project in the public interest, this would be a perfect example.   Our first reason for including in the comments is the exceptionally small size of the grant. There is only going to be a small amount of paperwork that the applicant will be interested in completing before it simply is not worth the applicant’s time, no matter how large the benefit may be. Avoiding this type of problems and barriers is a reason that we are asking for some type of programmatic waiver for RTP.

Our next concern about a project specific waiver, would be the fact we are unsure how to classify this project. Is this a manufactured product?  Probably. What is within the requirements?  That is difficult to say as we are not really sure what is in the chemicals that are in the toilet.  Are there portions of the toilet that are iron and steel?  Probably.  How would the maintenance service on the toilets be classified?   This periodic maintenance on the toilets is the service we really want.  We simply don’t see that fitting any of the BABA categories but given the broadly targeted nature of BABA, we can’t confirm.  We also don’t want to provide a grant and then have the applicant be unable to provide BABA compliance and lose the funding and continue to experience so many impacts that are clearly not in the public interest. These types of questions are challenges are exactly the types of problems that 54 USC 200101 was put in place to avoid moving forward.

We are providing a second example of the grants that we frequently receive, which exemplifies another issue we are very concerned about, mainly the highly diverse nature of resources that are sought from the Program.[8]  In this grant, the 14ers group is seeking 452 different hand tools, ranging in cost from $10 to $70 per item,  for projects they are working on with their crews and this type of detail has been highly effective in the group obtaining funding as the high levels of detail is a strong indication that the effort is well run and will deliver on work they are seeking funding for.  The Colorado 14ers initiative is a larger group in the trails world, but remains tiny in FHWA circles, that has used the RTP program funds to grow and prosper and these are the concerns that Congress has always been concerned about fostering.  The specifics of the grant are where the barriers of both the BABA requirements and possible implications of the waiver mechanism become apparent. Application of the BABA provisions, would require a certification for each of the 452 hand tools, and the management burden on every phase of these documentation efforts would be immense. Issuing a waiver for each of these 452 pieces would be an immense burden as well, given the huge nature of items that are being obtained. This is a burden that must be streamlined as the work the 14ers do is an immense public benefit and could easily be stopped by either application of BABA requirements or an item-by-item waiver process being applied for.

We have also provided a third example of another exceptionally small grant that was funded, has provided huge benefits for the recreational community while protecting public lands, which is the Carthart Trail grant.[9]   This grant also proved to be a catalyst to the previously nonexistent organization that was applying and start to tackle larger projects in a more consistent manner.  The value of this type of organizational development cannot be underestimated. While this grant lacked the specific item detail that the 14ers grant provided, the small nature of the grant would again be problematic from a cost benefit analysis.  Having to document the BABA compliance would be a major burden to the applicant and could prevent the applicant from ever even applying. Again, the provisions of 54 USC 200101 were put in place to avoid the unnecessary delays and paperwork burdens that had plagued RTP and LWCF previously and highly aligns with the concerns that are the basis for waivers in the Infrastructure Act.

3. Consistency with other agencies on Made in America standards.

The Biden Administration has announced the development of the Made in America Office, which is designed to achieve consistency in the development and implementation of the Made in America effort.  As we have previously noted, many other agencies have been issuing waivers for an extended period of time for a wide range of issues. This effort has been more limited in FHWA.  While the Organizations are aware that there will probably be significant discussion around why agencies are dealing with the same issues in a significantly different manner, this type of conflict will have immense impacts on the RTP managers and those applying for RTP grants moving forward.

The Organizations are very concerned that limited guidance has been provided for BABA at this point, but we are more concerned that changes in any guidance part way through the process will complicate applications and frustrate grant applicants. Many of our grants are very small in dollar amount but the applications are somewhat lengthy, and we are concerned that some applicants will simply not reapply under new guidance. We are even more concerned that small grant applicants may not be able to change directions on projects half way through their efforts.  They simply don’t have the resources to cover costs that they thought would be covered by the grant but can no longer be recovered due to new guidance standards being applied.

The Organizations are also very concerned about inconsistencies across agencies in their guidance for BABA.  As the 14ers grant exhibits exceptionally well, many of our grant applicants are matching RTP funds with other public and private funding from a huge range of sources. This type of leveraging is critical to any efforts succeeding on the ground and we submit that the agencies must make these efforts as streamlined as possible for applicants.  Every year federal lands managers rely on efforts such as these more and more simply because of declining funding being available to them from the general federal budgeting process. The Organizations submit that this situation makes every grant that much more important.

4. Conclusions.

Please accept these comments as a supplement to the comments submitted by the Organizations regarding the original proposal and its relationship to the Recreational Trails Program. (“RTP”).  We are also aware that many of our groups are also working with their state RTP program managers in development of additional state comments. Our membership has participated in almost every phase of the RTP process, from developing grants, to scoring grants, to meeting with legislators to obtain full funding for the RTP program. While we are aware that this comment period is limited to manufactured products, we are addressing the entirety of our concerns around the BABA Proposals. Part of our concerns center on the fact that in defining manufactured products as a portion of an entire project, significant complications can arise. The Organizations must address a preliminary concerning the scope and basis for waivers for the RTP program generally.  The public interests and benefits of the RTP program have been repeatedly and strongly identified by Congress since its inception in 1991 and as a result the Organizations must question. The RTP program is rather unique in federal highways programs as it is funded through the federal highway users fuel taxes but is managed with objectives now identified for the National Park Service.  While the management may be shared for the program, the waiver authority is based on the funder of the program, so the NPS lacks authority to issue such a waiver.  The Organizations believe the long and specific history of the Congressional findings for the RTP program warrant a waiver be issued on a public interest basis as well as the other statutory basis outlined previously.

The Organizations are concerned that the historical strength of the RTP Program has been its flexibility in creating public benefit in a wide variety of ways such as directly tangible benefits, such as buying equipment or supplies and the fact that the granting process is reasonably flexible.  RTP also provides significant less tangible benefits such as getting underserved youth populations outside and engaged in public stewardship. These are components of the RTP program that are rather unique within the scope of FHWA operations. While the Organizations support BABA, we are also aware that FHWA has provided VERY limited waivers for BABA and previously Buy American standards when compared to other agencies.  This has proven to create significant friction between local administrators, grant managers and grant applicants.  It would be the Organizations desire that the BABA provisions are developed in a manner that reduces conflict rather than expands it.

The Organizations are also aware that the Made in America Office (“MAIO”) is being formed currently. Given that the MAIO is seeking to achieve consistency and timely issuance of waivers and processes across agencies.[10] The Organizations submit that the creation of the MIAO should be a concern as FHWA policy appears to significantly conflict with one of the premises of the office, mainly that waivers are available for projects and efforts.   We would urge FHWA to be consistent as much as possible with other agencies simply for efficiencies, this type of consistency will be important for the small nonprofits that are commonly applying for these grants. They simply lack the time and resources to adjust projects midstream due to changes in accounting and grant administration guidance.

The Organizations are also open to discussion on possible contingencies or guardrails to narrow the scope of any waiver but we believe a waiver is necessary to streamline our acquisitions and efforts. Buy American Steel has already precluded RTP funding from supporting a large number of projects.   If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com) or Fred Wiley (661-805-1393/ fwiley@orba.biz).

Respectfully Submitted,

Scott Jones, Esq.
COHVCO, USA
Authorized Representative

Chad Hixon
TPA Executive Director

Marcus Trusty
President – CORE

Sandra Mitchell
IRC Executive Director
ISSA Authorized Representative

Edward Calhoun
President
Colorado Snowmobile Assoc

Michele Stevens,
President
Alaska Snowmachine Association

Peter Stockus
Government Relations
American Motorcyclist Association

[1] Made in America

[2] 16 USC 1261(a).

[3] 16 USC 1261(b).

[4] See, Public Law 113-287 §7

[5] See, Public Law 113-287 §2b.

[6] Pg 10.

[7] A copy of this grant and related documents is attached as exhibit 1.

[8] A copy of this grant and related documents is attached as exhibit 2.

[9] A copy of this grant and related documents is attached as Exhibit 3.

[10] Made in America

Public Comments Processing
Attn: FWS–R6–ES–2022–0100;
U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike
Falls Church, VA 22041–3803

RE: Establishment of a Nonessential Experimental Population of the Gray Wolf in the State of Colorado; Environmental Impact Statement, Docket No. Docket No. FWS–R6–ES–2022–0100

Dear Sirs:

Please accept this correspondence as the vigorous support of the above Organizations for Alternative 1 in the Draft EIS and Rule (“The Proposal”).  We are making these comments to supplement our previous input submitted during scoping on several topics such as clarity in the Rule making. The Organizations vigorously assert that management authority should focus on avoiding unacceptable impacts to various interests from the wolf being present. The benefit to the species in this effort is well established and without question occurring, now the efforts should be focusing the benefits and avoiding impacts.  The Organizations would like managers to be able to look back at 10j efforts and Proposition 114 more generally in ten years and be able to discuss the effective mitigation of impacts in the reintroduction rather than being forced to summarize another controversial wildlife reintroduction in the Western United States. More specifically our concerns include:

1. The Organizations would like to voice our vigorous support for the proposed “optional management authority” to address wolf populations that are creating an unacceptable impact to ungulate populations on the local level;
2. The Organizations would also like to voice our vigorous support for the expansion of the “optional management authority” to manage wolf populations to all species including species of special concern, domestic pets and other species that could be impacted; and
3. Expand the unacceptable impact threshold for triggering of optional management authority as a resource for managers to address other issues as well.

The Organizations would like to thank the Service for moving the public concerns raised around possible impacts from wolf predation on ungulates forward as a concern that would be addressed with the optional management authority.  While we are aware that this optional management authority is only proposed to be applied to ungulates in the Proposal, we believe expansion of this type of management authority will be a significant benefit in the case where wolves are impacting other wild species such as Lynx, domestic herd animals and domestic pets.  We are aware that these types of concern have not been documented well, we are also aware that this issue has not been well researched either.  We believe that this authority is critical to mitigating unintended impacts, should they be found.  The Organizations are aware that this optional management authority still requires a public engagement analysis process and decisions for utilization of this optional management authority and we believe this review process will provide significant protections for all species possibly impacted.

While Prop 114 has been cutting edge in many ways, such as reintroducing a species based on a ballot initiative, we are rapidly becoming concerned that Prop 114 has ushered in a new level of conflict around species management.  We are also concerned that this conflict will be systemic in nature and spanning a long period of time. This is exemplified by the fact that Prop 114 has triggered more state level legislation addressing a wide range of issues around the reintroduction, than all other species reintroductions in state history combined. Already this legislative session has seen the introduction of two more pieces of legislation that are addressing significant problems and impacts from Prop 114. The Organizations are seeking the broadest and encompassing protections for all recreational access in the 10j designations.  We are seeking this protection in clear and unequivocal language.  After participating in ESA efforts for decades there is always an assertion that motorized recreation is negatively impacting the species making this type of guidance very valuable to our concerns.  This conflict continues despite numerous species specific studies being developed and the decline of some species occurring even before motorized recreation was a concept and often impacts to activities like ours are summed up as unintended impacts of the listing. The Organizations submit a wide-ranging protection for recreation would be a significant step towards avoiding unintended consequences of the species protection and reintroduction and reflect a decision that is highly solidified in best available science.  For wolves this means stating that recreational access and wolves are unrelated.

The Service has provided similar broad protections around wolverines in Colorado and we would ask for language at least as strong as that previously provided in possible 10j designations for the Wolverines. Weaker recreation protections have been provided for the Mexican Gray wolf in Arizona and New Mexico 10j efforts and it has been our experience that these protections have not proven to be strong enough, as even with these protections every time there is a planning effort, trails have to be reviewed for the protection of Mexican wolves. We would ask the Service to apply the “unacceptable impacts” standard proposed for ungulates far more broadly than to just ungulate populations as unacceptable impacts will range far outside just this issue.

1. The Organizations continue to request clarity on the lack of impact from recreation on wolves.

We are aware that recreation can be a wide-ranging usage of public lands.  We welcome and support the recognition of the minimal threat of high-speed roads to wolf populations in the analysis as these resources are used by almost all types of recreational interests.  While the high-speed road is often not the recreational experience, it is critical in obtaining the recreational experiences sought.  The Proposed rule outlines the minimal nature of the threat as follows:

“Risks include wolves killed as a result of mistaken identity, accidental capture during animal damage control activities, and high-speed vehicular traffic. Human-caused mortality includes both controllable and uncontrollable sources of mortality. Controllable sources of mortality are discretionary, can be limited by the managing agency, and include permitted take, sport hunting, and direct agency control. Sources of mortality that will be difficult to limit, or may be uncontrollable, occur regardless of population size and include things such as natural mortalities, illegal take, and accidental deaths (e.g., vehicle collisions, capture-related mortalities) (85 FR 69778, November 3, 2020). The biggest risks likely include illegal take of wolves and individuals hit by motor vehicles. Accidental mortality caused by vehicle collisions are uncontrollable, but are not anticipated to be a significant cause of mortality.”[1]

The Organizations welcome the hierarchy of management manner of recognition and prioritization of the threats to the species that is used in the Rule.  It has been our experience that this type of hierarchy of management concerns for a species is more effective in reducing unintended consequences of any management actions when compared to a single level management effort. A wide range of tools for managers is always a good thing and we would be vigorously opposed to any reduction in this management clarity.

The Organizations would ask for a clear and unambiguous recognition in the 10j designation of the lack of relationship between recreational activities and wolf habitat and populations as has been previously provided for the Wolverine and has been provided for high-speed arterial roads. This lack of a relationship could not be more evident as wolves were hunted to extinction in Colorado decades before anyone thought about developing an off-road motorcycle or ATV.  The USFWS and adjacent State Wolf management efforts have already identified that social impacts, such as recreation, from the wolf management efforts remain a major challenge in species management despite the fact these two issues are entirely unrelated.

Our concerns around impacts from previous species introductions have been able to be resolved in rulemaking through designations such as experimental non-essential classifications for wolverines and clear statements of the fact there should be no change in forest management from a wolverine being in the areas.^[2]  The clarity provided around the lack of relationship between wolverine and recreation was addressed in the 2014 listing update for the Wolverine as follows:

“We find no evidence that winter recreation occurs on such a scale and has effects that cause the DPS to meet the definition of a threatened or endangered species. We continue to conclude that winter recreation, though it likely affects wolverines to some extent, is not a threat to the DPS”^[3]

We are aware that the 2014 Wolverine update was eventually struck down in Court for reasons unrelated to recreation or the 10j Rule Protections, however the Organizations have found significant value in the 10j protections in numerous efforts and discussions on the Wolverine. With CPW possibly looking at reintroducing Wolverine as well, we are thankful to be starting from this clear position on management rather than having to restart discussions from scratch again.

While there is only minimal data or research available with wolverine, the USFWS has more than 3 decades of data on wolves that have been reintroduced throughout the Western United States. Additionally, there is a huge volume of state-based information and planning resources available from the management of wolves in western states for more than the last decade.  As a result of the decades of high-quality wolf research and data that is now available there is a well-documented consensus that there is no relationship between dispersed recreation and wolf survival that must be clearly and unequivocally stated.  We were able to obtain this level of clarity with the 2014 Wolverine Proposal and can see no reason why even greater clarity would not be obtainable for gray wolves in Colorado as well, given that 10j protections in place for the Mexican Gray wolf have proven insufficient to mitigate ongoing management issues.

The Organizations would like to highlight the lack of concern between recreational usage of roads and trails and wolf populations or habitat quality.  In the USFWS 2016 review of the wolf population specific conclusions on this relationship, the Service stated as follows:

“To summarize, none of the status review criteria have been met and the NRM wolf population continues to far exceed recovery goals (as demonstrated by pack distribution and the number of wolves, packs, and breeding pairs in 2015). Documented dispersal of radio collared wolves and effective dispersal of wolves between recovery areas determined through genetic research further substantiate that the metapopulation structure of the NRM DPS has been maintained solely by natural dispersal. No threats to the NRM wolf population were identified in 2015. Potential threats include: A. The present or threatened destruction, modification, or curtailment of its habitat or range; B. Overutilization for commercial, recreational, scientific, or educational purposes; C. Disease or predation; D. Inadequacy of existing regulatory mechanisms; and E. Other natural or man-made factors affecting its continued existence (including public attitudes, genetic considerations, climate changes, catastrophic events, and impacts to wolf social structure) that could threaten the wolf population in the NRM DPS in the foreseeable future.

Delisting the NRM DPS wolf population has enabled the States, Tribes, National Park Service and Service to implement more efficient, sustainable, and cost-effective wildlife programs that will allow them to maintain a fully recovered wolf population while attempting to minimize conflicts.”^[4]

The Organizations believe it is significant that the USFWS clearly identifies that reducing management conflicts are a major concern for the wolf, unlike the 3 criteria that the USFWS normally reviews for possibly listed ESA species. The Organizations would be remiss if the high level of overlap between major conflicts identified in the 2016 USFWS update and the unacceptable impacts currently proposed was not noted.  The overlap is significant and the optional management authority would be a major step in reducing a known problem that has plagued wolf management for decades. The US Fish and Wildlife Service also clearly states the major concern in wolf habitat with roads is wolves being struck and killed on roadways as follows:

“In this final rule, we refer to road densities reported in the scientific literature because they have been found to be correlated with wolf mortality in some areas. We are not aware of any scientific basis for the concern that lower road densities would substantially reduce prey availability for wolves to the extent that it would impact population viability.”^[5]

The Organizations would note there is a significant difference between a wolf being impacted on a high-speed arterial road and the risk of a wolf being impacted on a low-speed dirt road or trail. If there was any concern on the latter impacting habitat quality or wolf populations it is of such little concern it is not discussed. The Organizations are aware that highways may be looked at for management but we would be opposed to any restriction of existing recreational opportunities for dispersed or lower speed recreational opportunities.  Rather this type of recreation commonly is drawn into management inadvertently and this should be avoided.

The Wyoming State wolf plan goes into great detail regarding the lack of relationship between low-speed trails and roads and wolf habitat quality stating as follows:

“Wolves are not known to demonstrate behavioral aversion to roads. In fact, they readily travel on roads, frequently leaving visible tracks and scat (Singleton 1995). In Minnesota and Wisconsin, wolves have been known to occupy den and rendezvous sites located near logging operations, road construction work, and military maneuvers with no adverse effects [Minnesota Department of Natural Resources (DNR) 2001]. The only concern about road densities stems from the potential for increased accidental human-caused mortalities and illegal killings (Mech et al. 1988, Mech 1989, Boyd-Heger 1997, Pletscher et al. 1997). Although some of the areas within the GYA are administered by the U.S. Forest Service for multiple use purposes and have high road densities, much of the GYA is national parks or wilderness areas that have limited road access and minimal human activity.”^[6]

Wyoming State reports provide a highly detailed outline of factors that are impacting wolf populations.  There are no factors that are related to recreational activity and we again note trail-based recreation occurs at such a low speed as to make wolf fatalities on a trail almost impossible.  The Wyoming wolf plan provides as follows:

“A total of 128 wolves were known to have died in Wyoming during 2016 (Table 1). Causes of mortality included agency removal (n = 113), natural causes (n = 5), other human-caused (n = 5), and unknown (n = 5).”^[7]

Given there is no record of any wolf population decline from recreational activity being in the same area in the several states that have decades of high-quality data on the species, the Organizations are requesting that the lack of relationship be clearly and unequivocally stated in any planning documents. Minimizing these types of unintended social consequences from wolf management are already identified as a major management concern by the USFWS and are also exactly the type of social concern that Proposition 114 specifically requires to be addressed.  The Organizations also submit that these types of indirect issues with management are the same issues that the OHV community would also summarize as unacceptable impacts.  The Organizations are open to whatever management tool allows these issues to be addressed, either optional management authority or through directly addressing the challenges in the 10j regulations.

2. The Organizations support management of all wolves under the single standard.

For most of the public, the mere identification of wolves when compared to other species such as coyotes and domestic dogs is difficult.  The identification of various wolf populations from each other will be functionally impossible for managers and the public. The Proposal recognizes this management challenge by making the determination that all wolves in Colorado will be managed as part of the experimental non-essential populations, which is proposed as follows:

“As discussed below, we conclude that after initial releases, any gray wolves found in Colorado will, with a high degree of likelihood, have originated from and be members of the NEP. However, we recognize that absent identifying tags or collars, it may be very difficult for members of the public to easily determine the origin of any individual gray wolf. Therefore, we propose to use geographic location to identify members of the NEP. As such, any wolf within the State of Colorado will be considered part of the NEP regardless of its origin.” [8]

The Organizations believe this one administrative measure will go great distances in resolving conflicts around the wolf reintroduction.  At least members of the public will not have to try and identify the genetic history of the wolf they are dealing with to try and obtain recovery of expenses to them from the reintroduction.

3(a)(1) The Organizations vigorously support the “optional management authority” for unacceptable impacts to ungulate populations.

The Organizations vigorously support the inclusion of what the Proposal calls “optional management authority” provided over wolves under the 10j Rule, which would be triggered when managers have determined unacceptable impacts are results from the presence of wolves at the local level. This optional management authority is outlined as follows in the Proposal:

“If wolf predation is having an unacceptable impact on wild ungulate populations (deer, elk, moose, bighorn sheep, mountain goats or antelope) as determined by the respective State or Tribe, a State or Tribe may lethally remove the wolves in question. “Unacceptable impact” is defined as an “Impact to ungulate population or herd where a State or Tribe has determined that wolves are one of the major causes of the population or the herd not meeting established State or Tribal management objectives.” States or Tribes must submit a science-based report showing the action meets regulatory standards. The Service must determine that an unacceptable impact to wild ungulate populations or herds has occurred and that the proposed lethal removal is science based and not in conflict with the State Plan.”[9]

As we outlined in our original scoping comments, the Organizations are very concerned about public response to ungulate populations declining at the local level due to the presence of wolves. The Organizations were pleased with the Service’s recognition of the need for management response of wolves that are creating unacceptable ungulate impacts in the Rule as follows:

“We have also requested input on whether to allow lethal management of gray wolves that are having a significant impact to ungulate populations. If allowed for the purpose of ungulate management, authorization for removal of wolves would require a science-based determination that an unacceptable impact to a wild ungulate herd has occurred and that removal of gray wolves would not impede wolf conservation.”[10]

The Organizations vigorously support this rationale and concern. The Organizations are far more concerned about the indirect impacts of wolves on recreation, and this concern is driven by the fact that wolves will cause ungulate populations in many areas to decline. Some of these declines may be alarming or uncomfortably visible to the public.  The Organizations are also aware that these declines will be hard to predict, could take years to understand for management response to even be proposed and then even longer for the management response to be approved. When the ungulate populations decline, recreational interests and users will be blamed for these declines and that could take years to remedy.  This type of misdirected management has already been repeatedly recommended in the public comment received at the Colorado Wolf public meetings. This optional management authority would be a step in mitigating these types of impacts.

The Organizations are assuming that there would be some type of mandatory public process to be completed to support the local determinations of unacceptable impacts from wolves.  We believe additional clarity on the nature of public engagement required would ease public opposition to these types of provisions being included and implemented. We would also like to clarify we do not envision this type of optional management authority being allowed only after an environmental assessment or environmental impact statement is approved.  These NEPA based efforts would be FAR too long in providing the management authority to address the situation.

While we are asking for clarity and public engagement, we are also asking for these efforts to be streamlined and responsive to public concerns. Possibly outlining a simple public meeting and a process similar to preparation of a Categorical Exclusion with a file under NEPA would be an acceptable level of engagement? CPW already does this type of engagement in the development of herd plans for ungulates throughout the state. The Organizations believe this optional management authority would provide significant flexibility in management moving forward and mitigate the possibility of unintended impacts for communities and interests that might be impacted by wolf reintroduction impacts only identified decades after the wolf has been reintroduced.

3(a)(2) The scope of optional management should be clarified to include all management actions, including lethal take.

The Organizations are assuming that the full range of management authority is provided for when the Rule is addressing optional management authority once localized unacceptable impacts have been found.  We would ask that the Rule clarify that the full tool box of optional management efforts is available to managers once the preliminary findings of unacceptable impacts has been raised.  We would be concerned if the only resource available in this situation was lethal take.

This type of guidance in the Rule will be hugely valuable in educating the public and managers around effective management options to avoid unacceptable impacts. We are also aware that managers will continue to receive significant public input on wolf issues for years to come and often this comes with significant public pressure on both sides of the discussion. Specific recognition of a full range of management authority over the species will assist local managers in dealing with this pressure in the decision-making authority. While State and federal level managers might be able to distance themselves from this type of overly impassioned public input, the average local manager is unaccustomed to this type of input and may simply never be able to remove themselves from the input as they are members of the community being unacceptably impacted. While we believe these lesser management tools are allowed by implication, we are asking for clear and direct guidance that all tools be clearly and directly allowed for management of unacceptable impacts from wolves at the local level.

3(b) Optional management authority should be extended to include unacceptable impacts to all species.

The Organizations vigorously support the concept of “optional management authority” being expanded to all species. The Organizations vigorously urge the Service to remain focused on management of unacceptable impacts as the goal throughout the 10j process rather than trying to craft a species-based scope of management. The Organizations are vigorously requesting the broadest scope of management flexibility around the wolf as possible, as we are intimately aware of how long and twisting efforts to unwind efforts to mitigate impacts of a possibly listed species or manage a listed species can be. While there is far more information about wolves available than ever before, many questions are far from resolved under the current management situation.  Prop 114 implementation will bring wolf management into many new and unique situations that are not well understood and will result in unintended impacts that have never been thought about previously.

As proposed, optional management authority applicability to merely ungulate species is somewhat arbitrary and possibly hard to scientifically defend. It is well documented that wolves are highly effective generalized predators and feed on a wide range of species. While current public interests may be focused on ungulate populations, we are able to see a wide range of impacts where localized wolf predation could be found to be immediately unacceptable.  Localized wolf predation on non ungulate species of concern, like Sage Grouse, would probably warrant application of a wide range of management tools, and we don’t believe these tools should be limited by arbitrary standards. The wide range of species that wolves are known to prey upon are addressed in subsequent portions of these comments. The arbitrary nature of management standards will not be judged by the scope of understanding today but rather will be reviewed with the gift of hindsight from the perspective of having a full understanding of the impacts being addressed.  These can be hugely different perspectives. Managers should be employed to address unacceptable impacts from wolves to all species as much as possible.

The types of unintended management issues are normally heightened when new or unique efforts are undertaken for a species. Prop 114 will bring wolves into other areas of the country that may not be thinking about wolves at all.  Will Prop 114 bring wolves into Texas?  Probably and questions like this will need to be addressed. Prop 114 will also create unique management challenges as wolves will be interacting with humans in and around population centers like never before. Currently, the Colorado population is 10x that of Wyoming and 5x that of Montana and compressed into a smaller geographic area, resulting in a higher human population density for Colorado than Wyoming or Montana. Simply due to these larger populations at greater densities, wolf interactions with domestic cats and dogs, animals on hobby farms, small zoos and domestic pets in an urban park type situation will be hugely increased.  Managers will need flexibility to address these types of impacts that will most certainly be seen as unacceptable. The Organizations would not want to be a local manager in a public meeting trying to address a recent rash of wolf predation on domestic pets and having to tell the public that only limited tools are available to address these unacceptable impacts due to USFWS regulations. This would be foolish at best and simply provide more fuel for opposition felt by the public for the Endangered Species Act generally. That should be avoided.

We would urge the Service to focus on management of unacceptable impacts and avoid any discussion that artificially limits the scope of these optional management authorities. The Service should focus on creating a 10j rule that is durable and flexible over time and allows for the most management flexibility to address all issues encountered. Prop 114 has been a new and unique effort from the day it started even as an idea for a ballot initiative and it will create management issues that are new and unique as well.  We submit that the management flexibility from the optional management authority will help to avoid unintended impacts of species management that may only be recognized decades later. Even more protection against impacts will be achieved when this optional management authority is expanded to all species and situations where impacts are unacceptable.

3(c)(1) Unacceptable impacts from ESA issues may continue decades after species related issues are thought to be resolved.

After involvement in decades of issues involving ESA management and species reintroductions, we can say with absolute certainty that issues around listing a species or mitigating impacts to a species can simply linger.  As they linger, they create significant conflict decades after the management actions have been undertaken.  Often from the perspective of those still forced to deal with these impacts, these are unacceptable impacts. The Organizations are aware that often impacts to species or activities are not understood at the time the management action is taken for the species and may impact many other species in a negative manner.

The Organizations concerns on these types of unacceptable impacts are neither abstract nor remote as immediately prior to the creation of these comments, the Organizations were creating comments on the BLM’s proposed land exchange in the Sand Hollow State Park area outside St. George, Utah.[11]  This land swap would decimate OHV interests at a dedicated OHV State Park located in a BLM created SRMA in the St. George area, and as a result is a major concern for our interests. The history of this land swap provides concrete examples of why we are asking for maximum flexibility in management. This is a land swap that is still being explored to unwind unintended impacts resulting from a Habitat Conservation Plan (“HCP”) that was created in the late 1980s for the benefit of the Desert Tortoise.  While the Desert Tortoise was listed and the HCP was seen as a cutting-edge resolution of major concerns in the area, the HCP has fallen well short of resolving all interests. Many in the OHV community would summarize this entire land swap proposal as an unacceptable impact of the HCP.

While the HCP allowed significant development of the St. George community by expanding interstate connections, reservoirs and development of housing in possible tortoise habitat, the HCP was far from without problems. Interests of some private landholders in the Habitat Conservation Area created by the HCP were heavily impacted and remain unresolved despite more than 30 years passing since the HCP was signed. Many other users of public lands were also heavily impacted by the high levels of restrictions on uses in the Habitat Conservation Area(“HCA”), such as the OHV community who lost access to more than 60k acres of riding areas with the HCP was implemented. The OHV community moved their activities into a Special Recreation Management area that was created in an attempt to mitigate these impacts several miles from the HCA.  This SRMA was then leased to the State of Utah to develop a hugely successful State Park for those users and many others.  In 2009, the HCA was transformed into a National Conservation Area by Congress. The current land swap proposal seeks to swap a portion of private lands in the HCA for lands in the State Park in an attempt to resolve on-going landowner concerns that arose more than 30 years ago. This lands swap proposal has reignited massive conflict among users and we are doubtful that anyone creating the HCP would have foreseen this type of action in the future.  These problems were simply never even thought of when the HCP was created but remain very ugly and very divisive in the community. These are unacceptable impacts of the HCP signed and HCA management more than 30 years ago that remain unresolved.

Could unintended impacts like this occur with wolves and possible impacts of wolves on other sensitive species?  Absolutely as the reintroduction is moving at what can only been said are breakneck speeds to achieve any compliance with Prop 114. We would like to avoid situations where management of wolves and impacts from wolves was still occurring more than 30 years after the listing.  This is simply unacceptable but could easily result simply due to the pace that all efforts are proceeding at.

3(c)(2). Draft Colorado legislation around wolf management is another example of why broad management authority is sought.

Development of wolf planning documents and analysis since the passage of Prop 114 has been moving VERY fast and often recognition of issues and challenges around the species are not even being recognized due to the rapid pace of development. This is a serious concern for the Organizations but despite the exceptionally rapid speed of the effort, unintended consequences have already come to light.  An example of an unintended consequence of Proposition 114 would be reflected in Colorado Senate Bill 23-255 and SB23-256.  A copy of these Legislative Proposals is attached as Exhibit “1” to these comments. In SB23-255 a separate appropriation of funds from the State to compensate for wolf damages would be provided for outside of existing funds generated by the sale of hunting and fishing licenses that are allocated to the existing game damage program.  This fee-based model has been providing cost recovery for game damage claims for decades. [12] The CPW game damage fund has historically provided cost recovery for landowners who were impacted by species being on their property or alternatively for costs incurred by land owners who are trying to protect resources from damage by game species. This program has reimbursed landowners for impacts to herd populations from predators, for costs of fencing and other materials to protect hay bales from consumption by ungulates. This land owner cost recovery program has been an integral part of maintaining wildlife populations in Colorado.

SB 23-255 has been submitted to address the fact landowners have already seen challenges in obtaining compensation from this program as landowners are preparing to protect these resources from impacts of wolves. While there is general state funding available to cover wolf reintroduction, this funding has not been sufficient to maintain the existing state program to allow cost recovery for existing species issues and cover costs of preparing for the wolf reintroduction. We have to assume that wolf costs are coming out of both programs and exhausting the traditional game damage funds.  Here can be no argument that impacts such as this are clearly unintended in nature.  When this issue had arisen, wolf planning was on the top of public concern and the Legislation was available to mitigate this unintended impact.

SB23-256 also represents another example of the types of challenges we anticipate to see continue well after wolves are on the ground. In SB23-256 the wolf reintroduction would be contingent on finalization and approval of the 10j Rule and without the finalization of the 10j Rule the reintroduction would not occur.  While there has never been any substantive discussions in the CPW led efforts that the reintroduction could occur without the 10j Rule being in place, SB23-256 has been a hot button of conflict and misinformation across the State.  We are very concerned that this type of misinformation and conflict is going to plague wolf discussions for a long time to come.  From our perspective, these types of impacts are unacceptable in every sense of the word and we believe the clarity provided in the 10j Rule could be an effective tool in managing this type of unintended and unacceptable impacts.

The Organizations are concerned that many remedies to actual problems and impacts could be limited without the proposed optional management authority outlined in the Proposal. This legislation represents the type of management flexibility that will be needed for decades to come, as we are simply unable to predict every possible impact to the state from the wolf reintroduction. We believe providing the greatest management flexibility as possible moving forward in the 10j Rule must be a priority as many in the hunting and fishing community would see the loss of these funds as an unacceptable impact of Prop 114.

3(c)(3) Economic costs of reintroduction have been horribly underestimated to date, which opens scary new opportunities for unacceptable impacts from Prop 114.

There can be no argument that the passage of Prop 114 was unprecedented in many ways, ranging from the reintroduction of species based on a ballot initiative to working on the aggressive timeframe required by Prop 114.  The unprecedented nature of Prop 114 has created a wide range of challenges which has been compounded with a lack of information on many of these challenges. One of the areas where there is a critical lack of information from other efforts is information around costs for the effort, which has already seen multiple State Legislative actions taken in response to unforeseen or under estimated costs of the effort. While we are aware that costs are most directly an issue for CPW and the State of Colorado, the Organizations are concerned that the experiences with costs of the reintroduction are highly relevant to the 10j scope of management authority allowed in the designation and process. These are unacceptable impacts that have already attempted to be remedied within the short timeframe since passage of Prop 114.  We can see no reason why these issues would just stop once wolves are on the ground, but rather we expect to see impacts become more apparent at a faster rate.

The scale of the consistent underestimation of costs for the reintroduction has been significant to date.  Originally the Colorado Legislative Services estimated costs to be well under $1 million totally and only $346,000 for the first year. [13] This estimate has proven to be overly optimistic as costs are currently estimated to be almost $3 million this year alone. The comical underestimate of costs for the reintroduction of the gray wolf is also exemplified by the costs incurred by the most recent update of the Mexican Gray Environmental Impact Statement which is identified as follows:

“Estimated Lead Agency Costs Associated with Developing and Producing this FSEIS $363,350” [14]

It goes without stating that the cost of a single Supplemental EIS for a reintroduced species being functionally the same as estimated total costs of a reintroduction causes great concern for the accuracy of any estimates for the total costs. We believe that this under estimation of costs will create impacts for managers for many years to come. As the reintroduction effort progresses, the Organizations have to believe that litigation of many aspects of the reintroduction will be a massive and ongoing issue.  While we cannot estimate these costs accurately at this time given the huge number of variables, we can say from our experiences that litigation is expensive and could easily significantly increase the costs beyond even the highest levels estimated today.

The Organizations also must recognize the current general economic conditions in the country, both from the possibility of a recession looming and also the large amount of federal stimulus money currently available to states. We simply do not expect the large amount of stimulus money to be available at current levels for long and are unwilling to say our outlook for the economy in the next several years was optimistic.  The Organizations must also address the current financial outlook for CPW generally. While the Organizations are aware that funding for the wolf reintroduction was now required to be funded by State General funds rather than CPW funds with the passage of Senate Bill 21-105, this funding is certainly not a bottomless source of funding.  CPW camping reservations processes was recently audited by the State Auditor and the conclusion of the audit was eye opening to say the least.  This audit found that CPW wildlife efforts were expected to lose $30 million annually and Colorado Parks was expected to lose another $10 million annually by 2025.[15] Given the constricting nature of this funding and introduction of many new competing interests in the discussions, we believe that interests outside the wolf reintroduction will become more important.

The Organizations are asking for as much management flexibility around any assumptions or management responses as possible to allow for changes in costs to undertake any effort and possible limitations in funding becoming available. We vigorously support full compensation for agricultural interests for impacts from all wolves in the State as these are unacceptable impacts, similar to those that are the basis of the optional management authority. The 10j Rule should not be a barrier to management response to any unacceptable impacts but should streamline these types of management responses in every way and manner possible.

4(a). Management of migration corridors as proposed in the CPW plan are very concerning.

The Organizations would like to address one concept for management of wolves that has been included in the Proposed Colorado Wolf Plan (“The CPW Plan”), which is the designation of migration corridors for management.  We include this concept in these comments as these corridors would occur predominantly on federal public lands, not State Lands and this management concept is deeply troubling.  The Organizations are concerned that the migration corridors would serve as hotbeds of unacceptable conflict and impacts on federal lands for wolf managers.  While the Proposal is attempting to mitigate these issues, the CPW Plan for a migration corridor management concept would render all the Proposal efforts null and void on the ground.

The Organizations are opposed to the inclusion of the concept of genetic management corridors for wolves in the Plan as this issue is generally viewed as academic and unresolved in nature.  We do not contest that there are isolated situations where genetic diversity has been a challenge for sustaining wolf populations, such as the challenges faced by the Isle Royale pack living on a single island in the middle of Lake Superior or the tiny populations of a subspecies in Scandinavia. The wolf management situation in Colorado could not be further from this situation on the ground, as wolves easily move long distances and interact with other wolves throughout the region.  Genetic diversity is an issue that should be addressed as wolves are selected for relocation and then monitored at most.

The Organizations will also express concern over another foundational assumption that is needed for the corridor concept, and that is the fact that wolves will only occupy small portions of the State. The Organizations must again question the basis of this determination as we are unable to identify a single source that thinks wolves will only stay on the Western Slope. Any conclusion that a lack of genetic variations will be a problem for the Colorado population is hugely premature.  The situations where genetic diversity has been an issue and the Colorado reintroduction simply could not be more different in every way possible. Even if these corridors are found necessary to map, do they need to be managed?  These are foundational questions that the Plan must address before determining these are even management issues and has not.

The genetic corridor management concept is outlined in the CPW Plan as follows:

“Safe passage within and between habitat areas is vital for allowing wolves to recolonize unoccupied habitat and for promoting genetic and demographic exchange between subpopulations, as it is for many wildlife species in Colorado. In Colorado, areas of greatest importance for restoring or maintaining connectivity between regions of suitable wolf habitat currently include various areas through western Colorado, primarily connecting areas that would likely have minimal interaction with livestock.

Other areas may be recognized in the future. Mechanisms to conserve lands and maintain working landscapes include conservation easements, agreements or land acquisitions with willing landowners, and other methods. Where appropriate, working with the Colorado Department of Transportation to create wildlife crossing structures for assisting wolf movement across highways that act as barriers can be a beneficial and productive effort towards wolf management and conservation.”

The Organizations believe the CPW Plan skips many important steps in the analysis process before coming to the conclusion that there is a risk of genetic isolation of wolves in Colorado. Research indicating that western wolf populations have experienced genetic migration issues or that the reintroduced wolves will lack genetic diversity are simply never mentioned.

Unlike wolves that may be trapped on an island in the middle of Lake Superior, that can only enter or exit the island when the Lake waters freeze, western US wolves have demonstrated the ability to travel long distances to connect with other wolves. It is generally accepted that wolves in Colorado are the result of wolves being reintroduced in Yellowstone National Park, and have already traveled long distances without issue. Other wolves from Yellowstone NP have been found in California, Oregon and Washington. Similarly, wolves from the Great Lakes population have been found in Iowa, Nebraska and Kansas.   This type of ability to travel has been demonstrated by other species as well, such as the wolverine known as M56, who was originally collared outside Yellowstone NP and subsequently made a globally known voyage across the western United States as he proceeded south to the San Juan Mountains in southern Colorado only to then turn northward and travel to South Dakota, where he was killed harassing cattle. Given this ability to travel with almost no restriction of many species, we must question why there would be a concern about genetic diversity in wolves.

The Organizations are also very concerned that the CPW Plan gives no guidance regarding general traits that might be managed in these genetic corridors.  Additionally, the CPW Plan provides no guidance regarding what management of these undefined traits might look like in the corridor. Our research is unable to identify any situation where management for wolf corridors has been undertaken, making any meaningful discussion of our concerns impossible. The Organizations remain deeply concerned that current oil and gas-based corridor management efforts will hugely impact recreational access, such as applying arbitrary route density standards in areas that have already been the subject of years of effort for site specific travel management planning. The Organizations submit that arbitrary wolf management concepts such as this are the exact reason, we are asking for management analysis and clarity for these areas be provided in the CPW Plan.  Often new or novel management concerns are introduced in planning documents, found to be unnecessary or unwarranted and then parties impacted by the standard fight for decades to make the management effort stop.

The Organizations must ask how this hugely generalized genetic corridor standard does not conflict with previous assertions that Colorado lacks authority to mandate management on federal public lands.   Any assertion that genetic corridors would only be occurring on lands of willing landowners or state managed lands simply lacks any credibility and will not be discussed further in these comments. Taking conflicting positions on basic issues such as the management of federal lands for wolves is entirely unacceptable. CPW needs to clearly and consistently apply standards for all forms of opportunities in these genetic migratory corridors or omit the genetic corridor concept entirely from the CPW Plan. The Organizations must state that the idea of reopening previously completed site specific NEPA efforts to address wolf genetic material corridors simply does not appeal to us. Addressing what has been called a novel academic concern will create years more work for partners, on issues that we were told were resolved.  This concept would be creating the same type of conflict that Proposition 114 required the Wolf Plan to address and mitigate.

4(b) Wolves are habitat generalists making any habitat or migratory corridor mapping difficult to almost impossible.

The Organizations are unable to identify any scientific research or other materials to support the asserted need to manage migration corridors for wolves.  Our research has found extensive materials available discussing why critical habitat, including corridors, for the western gray wolf has not been designated. CPW resources also specifically state that wolves have freely moved long distances from Yellowstone area to Colorado as follows:

“Wolves that migrate in and out of Colorado would likely come from the Northern Rockies populations currently in the states of Montana, Idaho and Wyoming.”[16]

Again, this is another example of conflicting positions being taken in the CPW Plan without recognition of the conflict it will create with other provisions of the CPW Plan.  The CPW Plan also fails to discuss the need for this type of management.  This must be corrected as CPW should not assert wolves move freely over long distances and then subsequently assert wolves cannot move long distances easily and as a result there is a need for management of corridors to assist their movement.  That would be immediately conflicting.

Clearly answering basic questions of why wolves would not be able to migrate or understanding why wolves would be migrating would be highly relevant. While some species of wolves rely on a food source that may migrate, this is not a wolf migration but migration of the food source wolves may be relying on.  The relationship of wolves and prey is far from consistent and many wolves do not rely on migratory species as many wolves will establish a home range and then never move as they are highly effective habitat generalists and do not rely on a single food source for survival. The State of Washington clearly and directly states that wolves are generalists on prey species as follows:

“Wolves primarily prey on elk, deer, moose, and other ungulates, although they also feed on smaller species such as beaver, mice, squirrels, rabbits, muskrats, marmots, grouse, and even songbirds.”[17]

Recognition of the ability of the wolf to adapt to a wide range of habitat extends well beyond Washington State. The adaptability of wolves to pursue many species and exist in many conditions is highlighted by the USFWS on their webpage as follows:

“The wide range of habitats in which wolves can thrive reflects their adaptability as a species and includes temperate forests, mountains, tundra, taiga, grasslands and deserts. In North America, wolves are primarily predators of medium and large hooved mammals, such as moose, elk, white-tailed deer, mule deer, caribou, muskox and bison. Gray wolves have long legs that are well adapted to running, allowing them to move fast and travel far in search of food, and large skulls and jaws that are well suited to catching and feeding on large mammals. Wolves also have keen senses of smell, hearing and vision, which they use to detect prey and one another.”[18]

USFWS involvement also provides significant additional resources and management expertise to the wolf reintroduction on questions such as migration corridors.  This is exemplified by the fact that USFWS already theorizes that the wolf population in Colorado is sustainable and able to travel long distances without migratory corridors, which has been clearly stated as follows:

“Post-delisting and subsequent monitoring, and the expansion of the NRM population into western Washington, western Oregon, northern California, and, likely, Colorado (USFWS 2020, pp. 15–19, 28; see also Current Distribution and Abundance), indicate that the wolf population in the NRM DPS remains well above minimum recovery levels (see Current Distribution and Abundance).”

Given the USFWS has already identified the wolves in Colorado are sustainable and can travel long distances, again the Organizations must question why corridor management would have been thought to be necessary.  Even the Center for Biological Diversity agrees with the above findings that wolves are habitat generalists and easily travel long distances as follows:

“HABITAT: Gray wolves are habitat generalists but need a sufficient prey base of ungulates and somewhat secluded denning and rendezvous sites. Areas with limited road access generally provide the best security for wolves.

RANGE: In the Great Lakes region, there are established breeding populations in Minnesota, Wisconsin and Michigan. Wolves have dispersed into North Dakota, South Dakota, Iowa, Missouri, Illinois and Indiana.

MIGRATION: Wolves do not migrate but travel over large areas to hunt, sometimes as far as 30 miles in a day; dispersing wolves may travel hundreds of miles in seeking mates.”[19]

The Organizations must question the basis for management corridors as a huge number of disinterested sources agree wolves have moved from the Great Lakes area to the Dakotas without managed corridors. Given the clear history of wolves traveling long distances without any species they are following, the Organizations believe that any corridor management concept must be addressed if this is even a management concern.  These foundational decisions should be discussed in the CPW Plan and have not been. The Organizations submit that arbitrary wolf management concepts such as this are the exact reason, we are asking for flexibility in management for these areas to be provided in the Proposal.  Often new or novel management concerns are introduced in planning documents, and then found to be unnecessary or unwarranted and then parties impacted by the standard have to fight for decades to make the management effort stop.   Here the CPW Plan is creating conflicts on issues where the underlying questions are uniformly settled and everyone is in agreement with these determinations.  Conflict with federal lands managers can only result from mandating management in these situations.

4(c) Critical habitat has never been designated for the gray wolf making any determination of corridors hugely premature.

The Organizations must recognize how horribly premature any discussion of connecting corridors is for western gray wolves. The position of the CPW Plan on migratory corridors is based on a rather unique interpretation of federal provisions for the management of species, that we would disagree with. Our concerns would center around the lack of any habitat designations for the wolf.  These would be critical in determining there is a lack of connectivity.  Without these determinations, we must question what we would be connecting.

The only designated habitat by the US Fish and Wildlife Service for wolves relates to the Eastern Timber Wolf and is located in Northern Minnesota.[20] We are unable to find a discussion of connectivity type issues in this designation of habitat. This is a major problem and would place CPW ahead of the USFWS on an issue they have exclusive jurisdiction over and would require the input of adjacent states on this issue which we are sure has not occurred. We are unable to locate any rulemaking or other efforts by USFWS to designate critical habitat for the western gray wolf.

We are also concerned that any attempt to create management corridors for wolves by CPW would immediately create problems with the enabling legislation for CPW. We are unable to find any provisions where CPW is granted management authority to create critical habitat designations over lands they do not own or is provided the authority to designate habitat in the manner proposed.  While CPW has broad authority, they don’t have the authority to manage in this manner. The remedy for concerns on connectivity is to work with the USFWS and collaborate with a huge number of interests in the USFWS planning effort. This simply has not occurred.

4(d).  Genetic corridor management would immediately conflict with the 2018 US Supreme Court in Weyerhaeuser.

The Organizations would also have serious concerns that any management of genetic or migratory corridors on federal lands would immediately become problematic under the Weyerhaeuser[21] decision from the US Supreme Court.  In this decision, the Supreme Court addressed the critical habitat of the Gopher frog as follows:

“The Service found that each of those areas possessed the three features that the Service considered “essential to the conservation” of the frog and that required special protec­tion: ephemeral ponds; upland open-canopy forest contain­ing the holes and burrows in which the frog could live; and open-canopy forest connecting the two.”

The Court struck down the habitat designations and corridor related management for the dusky gopher frog as the USFWS failed to clearly identify and define the habitat for the species and how it related to the survival of the species.  The definition of habitat remains an open issue with the USFWS, but given the Supreme Court’s concerns over management of lands that are not related to the survival of the species as habitat cannot be overlooked. The Organizations submit that given the proven success of the wolf as a habitat generalist, how could migration corridors ever be defined in a manner to exclude any portion of the State. Defining what is not habitat is as valuable as defining what is habitat for any species.

Given the Supreme Court’s concern over this type of arbitrary and overly generalized characterization of migration corridors for species, the Organizations must ask how these genetic corridors for wolves could ever be sustained, especially as many of these corridors will be crossing state boundaries with states that are not providing similar management. The Organizations submit that any attempt to manage genetic corridors for wolves would be creating exactly the type of conflict that the Colorado Wolf Plan is designed to be resolving. Rather than avoiding conflict this standard would create the basis for “I saw a wolf” based management identical to the failed management structure for the lynx we passionately want to avoid.

5. Conclusions.

The Organizations welcome the participation of the Service in the Prop 114 efforts and the development of the 10j Rule for the experimental nonessential gray wolf population in Colorado.

The Organizations are seeking the broadest and encompassing protections for all recreational access in the 10j designations that are stated in clear and unequivocal language, as after participating in ESA efforts for decades there is always an assertion that motorized recreation is negatively impacting the species.  This continues despite numerous species-specific studies being developed and the decline of some species occurring even before motorized recreation was a concept and often impacts to activities like ours are summed up as unintended impacts of the listing. The Organizations submit that the optional management authority as proposed is a step in the right direction but also does not go far enough.  We would request that the optional management authority encompass all forms of management and be extended to all species.

The Organizations submit a wide-ranging protection for recreation would be a significant step towards avoiding unintended consequences of the protection and reintroduction and reflect a decision that is highly solidified in best available science, mainly that recreational access and wolves are basically unrelated.  With wolves in Colorado, the lack of relationship between these activities could not be starker as the gray wolf was hunted to extinction in the mid-1940s, decades before an off-road motorcycle or ATV was ever even a thought.  The Service has provided similar protections around wolverines in Colorado and we would ask for language at least as strong as that previously provided in possible 10j designations for the Wolverines. Similar protections have been provided for the Mexican Gray wolf in Arizona and New Mexico and these protections have not proven to be strong enough, as even with these protections every time there is a planning effort, trails have to be reviewed for the protection of Mexican wolves.

The Organizations are very concerned that Prop 114, while unique and cutting edge in many ways, has ushered in what can only be summarized as an era of heightened conflict and challenges for managers and the State of Colorado more generally.  This challenge is exemplified by the fact Prop 114 has already driven more State legislation than all other species reintroductions in the State combined.  It is unfortunate that these challenges are far from understood or resolved at this point and we expect these conflicts to continue to grow and expand in ways that people simply never anticipated.  As a result, we vigorously support the optional management as proposed.  We would also vigorously expand the scope of authority provided by the Service to local managers under the Rule, to include non-ungulate species.  At least this will allow the Service to avoid some of the conflict that we expect will continue to plague Prop 114 for the foreseeable future.

Please feel free to contact Scott Jones, Esq. at 518-281-5810 or via email at scott.jones46@yahoo.com or Chad Hixon at 719-221-8329 or via email at chad@coloradotpa.org if you wish to discuss these matters further.

Sincerely,

Scott Jones, Esq.
Authorized Representative COHVCO
Executive Director CSA

Chad Hixon
Executive Director
Trails Preservation Alliance (TPA)

Marcus Trusty
President/Founder
Colorado Off Road Enterprise (CORE)

[1] See, Proposal at pg. 40.

[2] A copy of this document is available here: 2014-18743.pdf (fws.gov)

[3] 47532 Federal Register / Vol. 79, No. 156 / Wednesday, August 13, 2014 / Proposed Rules

[4] See, USFWS 2016 update at pg. 5.

[5] See, DOI; US Fish and Wildlife Service; Endangered and threatened wildlife and plants; removing the gray wolf from the list of Endangered and Threatened Wildlife; Federal Register Vol 85 No 213 at pg. 69870.

[6] See, Wyoming Fish and Game; Wyoming Gray Wolf Management Plan 2011 at pg. 30.

[7] See, Wyoming Fish and Game; Gray Wolf 2016 update pg. WY-6.

[8] See, Proposed Rule at pg. 41

[9] DEIS at pg. ix.

[10] Proposed Rule at pg. 45.

[11] More information on this land swap is available here: EplanningUi (blm.gov)

[12] More information on this program is available here: Colorado Parks & Wildlife – Game Damage (state.co.us)

[13] See, Colorado Legislative council memo prepared for Prop 114. A full copy of this document is available here.  2019-2020_107bb.pdf (colorado.gov)

[14] See, DOI USFWS: PROPOSED REVISION TO THE REGULATIONS FOR THE NONESSENTIAL EXPERIMENTAL POPULATION OF THE MEXICAN WOLF; May 2022; cover page.

[15] See, Colorado Office of the State Auditor, Department of Natural Resources; State Park Campsite Reservations Performance Audit; May 2022 2162P at pg. 4

[16] Colorado Parks & Wildlife – Wolf Management (state.co.us)

[17]The role of wolves in ecosystems | Washington Department of Fish & Wildlife

[18] Gray Wolf (Canis lupus) | U.S. Fish & Wildlife Service (fws.gov)

[19] Natural history (biologicaldiversity.org)

[20] See, DOI; USFWS; Endangered Wildlife and Plants; Reclassification of the Gray Wolf in the United States and Mexico with determination of critical habitat in Michigan and Minnesota; Federal register Vol 43 NO 47 at pg. 9607; March 9, 1978.

[21] See, Weyerhaeuser Company v. United States Fish and Wildlife Service 586 U.S. ___ (2018),

The Honorable Jennifer Bacon and the Honorable Jenny Willford
Colorado House of Representatives
Colorado General Assembly

RE: Letter of Concern House Bill 23 -1294

Dear Representatives Bacon and Wilford:

The Organizations must express serious concerns regarding the Proposal and most directly with the proposed cap on vehicle miles traveled. The Organizations support a healthy landscape as this is a critical component of a high-quality recreational experience for everyone and all natural resources.  We have worked towards this goal for more than 50 years and supported the development of cleaner vehicle standards in a wide range of efforts. This has been through engagement with federal managers on huge challenges on federal lands across the State, such as Sage Grouse planning and development of forest level plans and through our partnerships with CPW, we are approaching these comments.

It is from this perspective that we must express grave concern about the Proposal, as the Proposal appears to be applying generalized State standards to issues that should be more appropriately dealt with more locally or on an issue specific discussion.  It has been our experience that while landscape level efforts may be well intentioned, they often create more issues than they resolve.  It is with this perspective the Organizations are genuinely concerned with the proposal attempt to manage mobile sources of emissions and most specifically capping of vehicle miles traveled in an attempt to address air quality. It has been our experience that this type of standard is a VERY slippery slope in terms of impacts and often these types of standards have impacts that were never intended.  In our discussions with partners in California standards such as those proposed have immediately impacted recreational access and recreational activity. While these impacts to recreation have never been able to address any of the actual causes of the poor air quality, the impacts to recreation can be significant.  Often recreational activity is seem as a lower level concern when caps such as this are applied.

We are concerned that often air quality issues in Colorado are driven by factors that are unrelated to any activity in Colorado.  Everyone here is familiar with poor air quality in the state as a result of wildfires that may be occurring hundreds or thousands of miles outside the state.  We are concerned that any Colorado led initiatives will be doomed to fail as the source of these challenges may not even be occurring in the State.

The Organizations thank you for this opportunity to address our concerns regarding the Proposal and most specifically the proposed cap on vehicle miles traveled to address challenges that may simply be unresolvable with the scope of the Proposal. Please feel free to contact Scott Jones, Esq. at 518-281-5810 or via email at scott.jones46@yahoo.com or Chad Hixon at 719-221-8329 or via email at chad@coloradotpa.org if you should wish to discuss these matters further.

Sincerely,

Scott Jones, Esq.
Authorized Representative COHVCO
Executive Director CSA

Chad Hixon
Executive Director
Trails Preservation Alliance (TPA)

Marcus Trusty
President/Founder
Colorado Off Road Enterprise (CORE)