Author Archive | Christina

Senator Perry Will
200 East Colfax RM 346
Denver, CO 80203

Senator Dylan Roberts
200 East Colfax RM 346
Denver, CO 80203

Representative McLachlan
200 East Colfax RM 307
Denver CO 80203

Representative Mauroa
200 East Colfax, RM 307
Denver CO 80203

RE: SB 24-171 Wolverine reintroduction in Colorado

Dear Senators and Representatives:

The above Organizations would like to express our support for the above legislation but are concerned that the Legislation does not provide enough protections for the public from unintended impacts from the reintroduction of the Wolverine.   We have been very involved in the decades of discussion around possible reintroduction of wolverines in Colorado and management efforts for other species after they were reintroduced, such as the Canadian Lynx.  As a result, we are intimately familiar with the need for legislation, such as SB 24-171, to avoid unintended impacts from the reintroduction. We are also unfortunately intimately familiar with the long and twisted history that the status of the wolverine has had on the Endangered Species Act. The Organizations  vigorously support the concept that ranchers should be paid for any lost revenue they experience as part of a wolverine reintroduction.

The Organizations are all too familiar with assertions of the need for management of species based on possible sighting, which has too frequently driven lynx management efforts long after their successful reintroduction. The Organizations would like to avoid this situation being repeated with the wolverine. We are concerned that there are many other concerns and possible impacts of the wolverine reintroduction that are not addressed in SB24-171. While we support SB 24-171 we also would ask for additional protections for recreational activities on public lands that might be temporarily occupied by wolverines.  This protection would reflect the dual mission of CPW to manage recreation and wildlife.  The Organizations are aware that recreational activities have often immediately identified as risk to the wolverine despite decades of research being unable to identify any relationship between wolverines and recreation.

Our concerns on possible unintended impacts have been the basis for extensive efforts previously that are not currently addressed by the USFWS.  The Organizations were active participants in collaborative efforts to address possible wolverine reintroduction that involved CPW, USFWS, CDOT, Colorado Ski County, Colorado Cattlemen Assoc. and many others in the 2010 to 2013 timeframe. (“2010 Collaborative”). This was a massive effort spanning several years and included in person meetings attended by sometimes more than 40 people. We have attached a list of attendees from the December 2010 meeting as an example of the diverse range of interested groups that participated as Exhibit “A”. We have also attached a sample of the meeting notes and issues summary from these meetings as Exhibit “B”. While this was a large CPW collaborative  effort, awareness of the entire effort was marginal at best.  It is disappointing that many of the priority issues around wolverine reintroduction identified in this CPW collaborative were simply not addressed in the most recent listing decision for the wolverine by the USFWS. Even more disappointing is the fact CPW simply did not address these concerns in their comments, despite many of these management designations, such as a 4d designation and 10j rule being hugely necessary.  Our collaboratives also included designations of Candidate Conservation Agreements and Candidate Conservation Agreements with Assurances. The Organizations are thrilled that 24-171 makes these efforts mandatory.

The 2010 Collaborative effort led by CPW went as far as developing a draft reintroduction plan for the wolverine in Colorado. We have also attached a copy of the draft plan developed by CPW for your convenience as Exhibit “C”. It is disappointing that none of these issues and concerns were even raised by CPW in their most recent comments on the 2023 listing proposal and science update. In the 2013 USFWS listing the Service specifically stated there should be no change in forest management decisions, as a result of the wolverine being present. We have attached a copy of the USFWS 2013 listing document that clearly states this in the highlighted portion of page 2. A copy of this document is attached as Exhibit “D”.  This type of protection would be hugely valuable to the recreational community if it was included in the reintroduction plan for the wolverine.

We are aware this is an usual letter of support for any piece of legislation and appreciate your engagement on this issue.  We  are aware this issue is highly complex and nuanced and are very concerned that CPW has not engaged on the most recent discussion on the wolverine. Rather than CPW taking a collaborative path as they did in previous discussions, collaboration has been avoided in the most recent discussions.   The Organizations and our partners remain committed to providing high quality recreational resources on federal public lands while protecting resources and would welcome discussions on how to further these goals and objectives with new tools and resources. If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com) or Chad Hixon (719-221-8329/Chad@Coloradotpa.org)

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
TPA Executive Director

Marcus Trusty
President – CORE

Colorado Parks and Wildlife
Attn: Jody Kennedy
Via Email at jody.kennedy@state.co.us

RE:  2024 SCORP Development Effort

Dear Ms. Kennedy:

Please accept these comments from the Trail Preservation Alliance regarding the development of the new Statewide Comprehensive Outdoor Recreation Plan (SCORP).

The Trails Preservation Alliance (TPA) is a 501(c)(3) nonprofit organization focused on preserving Off Highway Motorcycle (OHM) recreation. The TPA takes the necessary actions to ensure that Land Managers including Colorado Parks and Wildlife (CPW), the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM) achieve a balanced amount of access for OHM recreation on public lands. In addition, the TPA is active in education and outreach and supporting the establishment and operation of regional off-highway motorcycle clubs.

We have actively participated in the development of the previous version of the SCORP and have been supporting participants in CPW led efforts such as Partners in the Outdoors conferences, the OHV Grant program, and others.  We are aware of the success that the SCORP has had in addressing issues such as providing solutions to historically limited funding sources.  While these new funding sources are significant, they have targeted uses that were traditionally underfunded.  This situation has changed over the last SCORP’s life and now non-motorized recreation is disproportionally provided funding exceeding that of both the motorized and snowmobile programs combined. As a result, we would ask for equity in the allocation of new funding sources.  While the OHV and snowmobile registration programs have provided immense amounts of funding for decades, it was not the intention of these programs to become the sole funding source for multiple-use trails.

Our constituent and supporters have been actively engaged in CPW programmatic efforts such as scoring hundreds of OHV grant applications with the CPW trails committees and actively participating on many other committees and subcommittees.  Our engagement has also expanded in the last five years with many of the newly formed Regional Partnerships across the state (e.g., Pikes Peak Outdoor Recreation Alliance, Envision Chaffee County, NoCo Places, etc.).   Our constituents have also actively partnered with the USFS and BLM offices and staff to perform a wide range of services around trails that benefit all users including cutting trees that block trails, teaching new employees how to operate equipment, hiring maintenance crews to address site specific problems, addressing new challenges such as people living on public lands and post fire disaster restoration efforts.

We have embraced addressing many new challenges facing the State, however we cannot overlook the fact that in some regions of the state interests are badly divided and often simple challenges become highly political or overly confrontational. It seems we are departing from a long Colorado history of dealing with challenges collaboratively. These impacts have been witnessed in CPW public meetings where CPW representatives are observed preemptively disconnecting communication with a member of the public while making comments on the transparency of agency processes.  We are concerned about the impacts and message this sends – volunteers could become less willing to volunteer or partners may direct funding elsewhere when recreation is not prioritized equitably. We request that the SCORP seek to address this as a challenge moving forward. Just as many of our partners are now champions for the motto of “be nice – say hi” on the trails, this motto ought to be embraced in both CPW meetings and recreational projects more now than ever before.

While multi-use motorized single-track is our passion, our ability to pursue this passion is substantially underrepresented, comprising only 8% percent of all trails in the state. The TPA has endeavored diligently to address motorized recreational access issues with the development of a self-funded statewide strategic plan. The Colorado Off Highway Motorcycle Trail Opportunity Plan (COTOP) was developed for the OHM community to graphically portray current opportunities, identify strengths and weaknesses of those opportunities, highlight where land management strategies are favorable for OHM recreation and suggest where opportunities might be improved upon. The alignment of COTOP, the SCORP development and CPW restructuring should not be overlooked or ignored.  Upon your request, we would gladly share a copy of this visionary strategic plan for your reference.

In the interest of cooperative collaboration, the TPA would like to raise another suggested issue for the SCORP to address, which is the staffing challenges that are faced by both CPW and Federal land managers.  While staffing has always been a difficult issue in many parts of the State, we have seen this become an almost unresolvable challenge very quickly. This has presented immense problems as too many positions with our CPW and Federal land manager partners are simply going unfilled.

As a result of these barriers from staffing, the motorized community has taken what is virtually an unheard-of step to understand basic components of the staffing challenges.  It has been our experience that we need to clearly understand problems before they can be solved, and the motorized community has also developed research to try and address basic barriers to hiring. We were leaders in attempting to understand if hiring challenges were isolated to federal land managers or if it also encompassed state managers.  Were similar challenges seen in the private sector or is this disproportionally in the public sector? Was the Youth Corp seeing similar challenges in hiring their crews? Many wanted to simply increase salaries, but those that have increased salaries have not seen major improvements in hiring and retention.  Many thought this hiring barrier was a lack of awareness of federal positions, which resulted in a federal hiring blitz over the last two years.  Once again, if you are interested, we will provide you a copy of this research.

Even those existing positions that are being filled are being filled by employees that often lack the experience, skills and even a basic understanding of the decades of efforts that have resulted in management accomplishments to the level where they are today in the state.  Rather than celebrating these preceding successes, such as wildlife populations being at or above goals in the State, we too often hear wildlife populations are collapsing or that travel management has not occurred from many new federal and state employees.  Often this erroneous narrative is coming from groups that neither support the agency nor recognize even the most basic tenants of public lands management such as the multiple-use mandate.  This is creating immense conflict and stopping desperately needed projects from moving forward, such as expanding recreational infrastructure in the State. For far too long we have simply assumed there would be a sufficient supply of these opportunities and in many areas, this is now proven to be an incorrect assumption.

We thank you for this opportunity to comment on the SCORP.  We believe the SCORP should guide CPW through its upcoming revisions in structure and provide a vision for the newly created recreation division within CPW for the next several years.

Respectfully,

Chad Hixon
Executive Director
Trails Preservation Alliance

Members of the Senate Agriculture & Natural Resources Committee
Via Email Only

Re: Concerns regarding CPW Commissioner Confirmations

Dear Committee Members:

Please accept this correspondence as the statement of the significant concerns of the above Organizations regarding the upcoming confirmation of the Governor’s nominees for  Commissioners on the Colorado Parks and Wildlife Commission (CPW). The above Organizations have partnered with CPW for more than 50 years through the voluntarily created Off Highway Vehicle (OHV) and Snowmobile Registration Programs that CPW administers. These Programs currently are providing more than $8 million per year in funding for all forms of recreational opportunities across the State. This funding directly provides more than 60 crews to support designated routes.

The Organizations are concerned that these appointees simply do not meet statutory requirements for appointment and will not bring balance to CPW but rather will continue to be overly focused on particular species and issues unrelated to recreation. This lack of a demonstrated experience in the nominees is critical to balance within CPW and the Commission as all the nominees are being nominated for recreationally-based seats on the Commission.

Based on our experiences, CPW is simply out of balance.

Over our 50-year partnership, our relationship with CPW has ebbed and flowed.  It is with this perspective, our Organization’s can say CPW is simply out of balance and this imbalance is probably the worst we have ever seen. Right now, there is no one with dispersed recreational experience on the Commission despite 83% of Colorado residents participating in trails-based recreation. The economic contributions of outdoor recreation to Colorado recently reaffirmed by the US Department of Commerce when they found more than $14 Billion Dollars of economic contribution to the State and 14,000 jobs in 2022 alone. While the Outdoor Industry has a designated Office tasked with representing them, primary management of the users of outdoor recreational opportunities is vested within CPW. All we are asking for is skilled representatives on the Commission to fulfill this critical need to represent recreational users.  It is frustrating that issues such as this must be addressed.

Balance within CPW has been difficult since the merger of  the historical Division of Parks and Division of Wildlife on July 1, 2011.  The failure of the old Division of Wildlife and Division of Parks to merge operations was specifically identified as an ongoing concern in the investigation of Director Prenzlow’s comments at the Partners in the Outdoors event in 2022. While we understand wolf reintroduction has placed unprecedented and unexpected stress on CPW, we must also recognize imbalance was there before wolf reintroduction.  Our concerns about balance within CPW has only grown further with announcements that the reintroduction of the wolverine is now going to be pursued.  Reintroducing another species is concerning given the under representation of recreation during wolf reintroduction which reintroduction remains less than complete on the ground. We are very concerned that adding another species to this discussion will only result in recreation being further under valued within CPW.

It is important to note that our discussions have always been cordial with CPW staff but we have consistently found these discussions to be of limited impact.   Too often we have been told, either directly or indirectly, that recreation was simply not a priority right now.  These types of prioritizations of staff has resulted in CPW sometimes being unresponsive to significant concerns of the recreational community despite our 50-year partnership and millions in annual funding. Recent efforts that highlight the failure to prioritize recreation would include:

1. The introduction of SB24-056 by the motorized community. The ability to charge out-of-state users for snowmobile permits the same amount required of in-state users and clarifying the ability to charge Search and Rescue costs is a critically important component of CPW operations.  Despite this issue being recognized for several years by CPW, no action was taken until the partners  took the lead on resolving this issue.
2. We are able to fund the development of an OHV based-state park but these discussions have simply never been prioritized. While the Governors Office continues to seek nominations for new state parks, ours has never moved.
3. We recently pursued federal highways for the issuance of waivers under the Federal Highways Administrations Recreational Trails Program (RTP) for CPW. The RTP program has provided approximately $2 million in federal funds to benefit all recreational interests and without these waivers this funding would have become largely unusable.

Issues such as this within CPW are becoming far too common and we believe are the result of CPW simply not properly weighting recreation concerns in their operations. While these are somewhat technical issues and concerns within CPW, they are critical to the long-term success of CPW’s recreational efforts. These are also issues we must ask why our Organizations are leading discussions and efforts to address.  Should we partner with CPW on issues like these?  Yes.  Should we lead these efforts?  Maybe not. It is from this position, we are asking for strong experienced leaders for recreation on the Commission.

Commissioners must demonstrate expertise when they are appointed.

The Organizations are concerned that the current list of nominated CPW Commissioners have little to no recreational background.  Our concerns are compounded as the nominated Commissioners will be the entire recreational voice on the Commission as all recreational-based commissioners were not  reappointed. We are aware that the critical role that CPW plays in nonconsumptive recreational activities throughout the State is often poorly understood by the public. The Commission was designed to address issues like this and ensure the mission of CPW is achieved on all issues.

As an example, the winter grooming program is a perfect example of how complex the relationship of State and Federal partnership efforts  can be. Most of the public thinks the more than 3,000 miles of winter grooming is provided by federal managers.  This is incorrect.  Some of the public understands grooming is provided through a local nonprofit club that is largely volunteer.  This is somewhat correct.  Even fewer understand the critical role that CPW trails program plays in this effort. We would submit that Commissioners must understand these types of efforts within CPW if they represent recreation. Living next to a State Park or temporarily managing a State Park in another State is simply insufficient experience to warrant an appointment to the CPW Commission.  These appointments address impacts and policies for programs like ours.  The Organizations vigorously assert that the current nominees will not address the imbalance within CPW’s two missions, but rather will continue or expand the existing imbalance as they have minimal background in recreation.

CRS 33-9-101(3) requires CPW Commissioners to have a demonstrated reasonable knowledge of issues when they are appointed, and this statutory requirement is more important than ever before for CPW. We can say with certainty that this standard was a major concern when this provision was passed as part of the legislation for the merger of DOW and Colorado Parks. Commissioners must be experienced leaders that assist CPW leadership based on their experience in the field of recreation, not merely people who could be trained over some period of time to meet the legal requirements for appointment.  If this was the standard for appointments, why have a standard at all? While the new Commissioners may be generally concerned about wildlife issues, this does not mean they are knowledgeable leaders in the field of recreation.  Experience and expertise must be demonstrated when they are confirmed not years after confirmation.

Our general concerns around the failure of nominees to demonstrate recreational expertise started with the Commissioners who are stepping down from the Commission in 2024.  Many of these outgoing Commissioners lacked a strong recreational background when they were appointed.  Largely these Commissioners were trained over the several years by CPW staff and partners. Our members volunteered to support these trainings in order to educate the Commissioners on the massive amount of effort and collaboration already occurring within CPW.  It is frustrating that none of these Commissioners were even proposed for reappointment for reasons that are unclear. We would like to avoid spending years more of staff and volunteer time and resources to train new Commissioners who appear to be even less qualified than the Commissioners who are stepping down. While we will support this type of training again, we are also concerned that this is time and resources that CPW no longer has to direct in this manner.

Balance of the competing CPW missions in the upcoming CPW reorganization and the large amounts of new staff everywhere.

The Organizations are thrilled with the CPW announcement of  efforts to realign its operations to create a recreation and lands department within CPW. This would be a major step forward in prioritizing recreation within CPW and balancing the two goals of CPW. We are aware that reorganizations such as this need strong experienced leaders on the Commission to support CPW staff to be successful. Our experiences with the merger of Parks and Wildlife have proven this need.  Strong experienced Commissioners will allow them to identify challenges and problems with new policies and staffing levels such as the challenges we have noted previously. Being a value-added resource to CPW staff on trails issues such as those we noted previously is not accomplished when Commissioners must start with education that CPW addresses issues on federal lands and has a Trails Program.  The ability of skilled and experienced commissioners to share experiences around programs will be a resource during the reorganization and this type of collaboration will avoid problems in the future.  Effective management and operations will expand support for CPW and their staff, which will be more necessary than ever if multiple species are to be reintroduced at the same time. Commissioners must be a resource to CPW rather than a drain and despite the best of intentions unskilled commissioners will be a burden.

The need for experienced recreational leaders on the Commission is further exemplified by the staffing shortages that are systemic with CPW and Federal lands managers. These staffing shortages are highly evident in the recreational community. The existing expertise of the staff has diminished greatly as many federal offices are only at 50% capacity and many of those staff are in an acting role. How can we lead discussions on training needs for new staff at CPW or USFS/BLM when Commissioners need to be trained.  The simple answer is we can’t.

Conclusion.

The Organizations are very concerned that the Commissioners seeking confirmation lack the necessary qualifications for appointment. While these nominees may be qualified in fields close to recreation and be passionate about wildlife issues this is not a demonstrated knowledge of the important issues discussed above. Could the nominees be trained over the next several years?  Of course. We have tried this previously and failed to retain those Commissioners. We are asking the Senate to take a hard look at the qualifications of the nominees to the CPW Commission.  CPW is facing unprecedented challenges to the recreational portion of its mission and strong experienced Commissioners will be a critical component of meeting these challenges.

The Organizations and our partners remain committed to providing high quality recreational resources throughout the State while protecting resources.  We would welcome discussions on how to further these goals and objectives with new tools and resources. If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com) or Chad Hixon (719-221-8329/Chad@Coloradotpa.org).

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
TPA Executive Director

Marcus Trusty
President – CORE

BLM Colorado State Office
Attn: Big Game Corridor Amendment/EIS
Denver Federal Center, Building 40
Lakewood, CO, 80225

Re: Draft RMP Amendment and EIS for Big Game Habitat Conservation for Oil and Gas Management in  Colorado

Dear Sirs:

Please accept this correspondence as the vigorous support of the Organizations for Alternative A of the Draft RMP Amendment and EIS for Big Game Habitat Conservation for Oil and Gas Management in  Colorado (“the Proposal”). The Organizations are unable to identify any Alternative that arguably applied multiple use concepts or recognizes the huge success of existing management in protecting wildlife. Every other alternative proposed also mandates the application of the mile per mile route density for oil and gas routes but expands the scope of routes that could be impacted to every route in a wildlife corridor as definitions are not provided for oil and gas related activities but are provided for action that are clearly unrelated to oil and gas. As an example, the Proposal fails to define or address in any manner equipment that is commonly found in the development of oil and gas wells, such as loaders, bulldozers, graders and other heavy equipment. While equipment such as this is not included the Proposal is able to include definitions of oil and gas issues uses such as boating, mountain bikes and other activities that could not be more unrelated to oil and gas in any way. We simply have been able to understand how and oil and gas route could be identified or how the mile per mile density was developed.  We are not able to find any meaningful discussion of how this standard was established.

The Organizations are deeply troubled that the entire Proposal appears to be nothing more than an effort to build a cap-and-trade program for public access to public lands.  As we have noted previously, the Proposal suffers from many foundational problems that are only compounded when analysis of the Proposal is addressed from that perspective.  While the recreational community may not be opposed to the concept of a cap-and-trade system on public lands, the Proposal is so poorly developed and defined that meaningful discussion cannot be achieved. As a result, we are vigorously opposed to the implementation of the Proposal in this manner as the recreational community has almost nothing to gain in terms of expanded opportunities but has everything to lose if the Proposal is not accurately developed and successfully implemented. When we must identify the fact that none of the management agencies currently has the legal authority to do most of what they are proposing, we think this entire process will be a significant negative impact to all forms of recreation in the State.

1. Who we are

Prior to addressing the specific concerns, the Organizations have regarding 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 250,000 registered OHV users in Colorado seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is a largely volunteer organization whose intention is to be a viable partner, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding.  The TPA acts as an advocate of the sport and takes the necessary action to ensure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite the more than 30,000 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 an entirely volunteer nonprofit motorized action group out of Buena Vista Colorado.  Our mission is to keep trails open for all users to enjoy.  For purposes of these comments, TPA, CSA, CORE and COHVCO will be referred to as “the Organizations.”

The motorized community is the only recreational group who has been legally required to balance recreational opportunities with wildlife protection for more than 50 years. Over this 50-year span, we have worked hard to proactively address wildlife needs in conjunction with recreation, and until very recently we had been informed these efforts had been a successful partnership of interests and in most areas of the state, populations were well above goals for the species. Our Organizations have also become the single largest partner with land managers in funding sustainable recreational opportunities on public lands across the state.

2(a). Why we are concerned.

The Organizations are VERY concerned about the exceptionally poor nature of the Proposal analysis of issues as 100% of motorized and non-motorized recreational opportunities are at risk of closure in the Proposal.  This unprecedented impact of the Proposal is specifically identified as follows: [1]

Given that recreation in the state of Colorado provide more than $11.5 billion in economic contributions that provides more than 125,000 jobs to Colorado citizens[2] the Organizations would submit possible impacts to these significant benefits must be addressed. Despite the massive benefits to Colorado from outdoor recreation, the fact that 100% of motorized and nonmotorized routes has been proposed to be subject to a mile per mile density cap is simply never meaningfully addressed.

2(b) Travel Management decisions are allegedly grandfathered.

The Organizations do welcome the inclusion of the grandfathering of existing travel management decisions in the Proposal. This is a minor step in recognizing the effects and benefits of current management.  This minor step simply does not address the massive long-term impacts that the Proposal has on all recreational access as the Proposal hugely expands the number of uses that are subject to the mile per mile cap and fails to recognize that most uses have never undergone any type of management.  This will result in massive conflict between users and huge unintended impacts to uses totally unrelated to oil and gas.

The Organizations would like to believe this decision was made to protect and balance recreational uses,  but we are forced to believe this grandfathering is based on another concern. This concern is the failure of the Proposal to identify a model for implementation of the goals and objectives for the effort that can ever be implemented.  AS we outline subsequently, basic definitions of critical terms are not provided and the factors that are reviewed simply are unrelated to travel management. When these criterial are applied to any planning area, it becomes immediately apparent there are catastrophic failures in the analysis. Rather than dealing with these issues, the Proposal simply pushes those failures into the future in the hope these failures can be dealt with in the future.

3. Previous comments provided in scoping for the Proposal.

The Organizations provided extensive comments in scoping on a wide range of issues, none of which appear to have been addressed.  As a result, we are resubmitting those concerns as part of these comments to preserve legal options on the Proposal. These concerns are not reproduced here simply to avoid the submission of repetitious information.

4(a) Wildlife is clearly identified as a multiple use of public lands.

The development of the Proposal has been based on a broken legal foundation from its inception as the Proposal has been based on the input of Organizations that simply are no more than managers of certain portions of the BLM multiple use mandate.  While Wildlife may be a significant issue for these agencies, this does not alter the fact that the agency is only managing a small portion of a much larger management requirement. The specific identification of wildlife as part of the multiple use mandate is clearly identified as follows:

“(8) the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use;[3]

This management of wildlife as part of the multiple use mandate of public lands is again clearly stated as follows:

“(c) The term “multiple use” means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.”[4]

The protection of wildlife is an important use of public lands, but this is not an absolute requirement on BLM lands, but rather is one of many factors that must be balanced.  While State agencies involved in this effort are addressing only a single portion of the multiple use mandate, this does not absolve the BLM from balancing all factors required in federal public lands. This balancing of factors simply has not occurred as after reviewing the Proposal we are entirely unable to understand the scope of the Proposal or how it will relate to existing management decisions and various Congressional designations. The failure of the relationship of the Proposal to existing management could not be more exemplified by the fact that at no point  4.2m acres of Roadless Areas, more than 3.5m acres of Congressional of Wilderness and extensive other areas where mineral withdraw is entirely prohibited.

4(b) The Proposal overly relies on single issue state agencies  for its analysis of issues and multiple uses.

The Organizations initial starting point for concern over the failure of analysis in the Proposal starts from the recognition of the over reliance of BLM on State agencies that simply do not align with the mission of the BLM in the creation of the Proposal. This overreliance on the state agencies is even more problematic as there was very little public engagement through State resources on these issues.  We are not aware of any CPW public engagement in the development process of their recommendation to the BLM. The Colorado Energy and carbon management commission (“ECMC”) mission is so narrow that no one would think to even monitor ECMC to address issues like route density for recreational usage. After reviewing the public engagement with ECMC, these efforts were clearly addressing energy development and nothing else.  This should not be surprise as the ECMC mission statement is clearly stated as:

“To regulate the development and production of oil and gas, deep geothermal resources, the capture and sequestration of carbon, and the underground storage of natural gas in a manner that protects public health, safety, welfare, the environment and wildlife resources.”[5]

The Organizations would be hard pressed to find an agency with less relationship to public lands recreation and multiple use mandates than ECMC. It should be noted that a cursory review of the ECMC proceedings reveals that they have NEVER talked about recreation usage in the last 3 years. This should have been a red flag that the efforts of the ECMC simply would not reflect multiple uses and BLM must address these issues before release of the Proposal.

4(b)(3). CPW generally.

The Organizations are forced to address the rather troubling direction of efforts from Colorado Parks and Wildlife over the last several years.  Historically, CPW was an Agency that worked hard to be the purveyor of high-quality unbiased wildlife information on all issues. While CPW  is able to continue this function on certain projects, on many projects CPW is now catering to extreme wildlife organizations and actively seeking to provide information that only supports certain conclusions. Too often CPW documents are created in isolation, without peer review and often shielded from public scrutiny and CPW positions frequently change based on a political whim and fail to provide any basis for these changes.  This is disappointing for our Organizations as we have partnered with CPW for decades and have achieved nationally recognized success. This is no longer the voice that is consistently coming from CPW and this type of concern seems to avoid protecting consumptive wildlife and recreational concerns.

Our concerns extend far beyond the expanding consistency with which documents and reports that are foundational to analysis are created with no public scrutiny at all. Recent Commissioner behavior at meetings has been clearly targeted to diminish or reduce public input on issues.  The message is clearly sent when the Chair of the Wildlife Commission scolds public input and eventually hangs up on members of the public providing factually accurate input in a meeting on the transparency of CPW activities.[6]  This could not be less acceptable despite the fact there is rapidly growing opposition to this type of behavior.[7]  The CPW understanding of recreation has diminished greatly in the last several years as exhibited by the fact new commissioners designated to represent recreation on the commission have no background in recreation other than living next to a State Park.

The Organizations again must voice vigorous concern on the Proposal use of CPW recommendations on any issue without further vetting of the recommendations.  The input of a state agency allegedly over seeing an issue is not a replacement for the BLM managers requirement that meaningful analysis of these issues is performed and multiple uses are balanced in accordance with federal statutory requirements.

The Organizations are also aware that there is litigation allegedly driving part of this planning effort.  At no point are we able to locate any portion of this settlement that absolves BLM of their statutory obligation to address multiple uses in planning.

5(a)(1) BLM managers have absolute responsibility to ensure compliance with multiple uses and NEPA sufficiency.

Courts have consistently found that while State agencies and other partners may participate and draft NEPA documents the ultimate responsibility for compliance with the NEPA requirements and multiple use mandates remains with the federal agency. [8]  Recent reforms and clarifications of the absolute responsibility of BLM managers to comply with NEPA requirements was recently added in the Fiscal Responsibility Act of 2023.  The Organizations must take a hard look at this Proposal and the high levels of engagement asserted to be achieved before this was brought to the BLM

”(D) ensure the professional integrity, including scientific integrity, of the discussion and analysis in an environmental document;

(E) make use of reliable data and resources in carrying out this Act;”[9]

The Organizations vigorously assert this requirement simply has not been achieved with the Proposal as it was created by an Organization that has no statutory authority over multiple uses, or is even a primary manager of wildlife, mainly ECEC.  This was then shared with CPW that as far as we are aware did nothing more than rubber stamp the Proposal as no public comment was undertaken.  While we do not contest that partners can have an active role in the development of NEPA, NEPA can be done with partners but does not absolve the agency mandate to confirm compliance with legal requirements.

5(a)(2) Calculations are allegedly based on high quality habitat but are then applied to the entire GMU.

The Organizations are supporting Alternative A of the Proposal as every other alternative in the Proposal starts from a foundational flaw.  Mainly the analysis claims to address route density in only certain designations such as High Priority Habitat (“HPH”) or winter range but then seeks to apply these conclusions to the entire GMU.   This forces us to ask the question of why would any effort be directed towards the designation of winter range and other existing habitats if management decisions are simply applied to the entire planning area. No explanation of how this decision was made or factors that it was seeking to address were ever provided, despite this being an entirely unprecedented application of these analysis.  The Organizations are aware that extensive portions of HPH are not even found worthy of designation as an ACEC after site specific review in the planning process.

Not only is this decision entirely unprecedented and unsupported it also fails to recognize there are massive tracts of lands that will never be available for oil and gas exploration, such as Congressionally designated Wilderness, National Monuments and Parks.  This issue is simply not addressed at all in the allocation of HPH analysis to the larger landscape. This is a complete violation of multiple use mandates for the management of public lands. While wildlife is an important component of recreation and the Colorado way of life, it is also merely a multiple use on public lands.  The only species that are outside the multiple use mandate are those that are protected by the Federal or State Endangered Species Acts, and even in these situations there are significant protections for multiple uses. The Organizations are very concerned that the Proposal would simply avoid all these requirements for the use and management of public lands and place  wildlife above all other concerns.

5(b) The lack of foundational definitions is a systemic problem with Proposal.

The Organizations are very concerned that the Proposal continues to lack basic definitions that are a foundational to the implementation of the Proposal in the future and the basic accuracy of information that is being presented currently.  Without basic definitions any assertion that sufficient NEPA has been prepared is factually problematic or that analysis has been consistently prepared from unit to unit.  The example of the failure of the Proposal to define terms is evidenced by the lack of definition for the concept of an “oil and gas route” despite this concept being heavily restricted in the Proposal. Understanding the concept of an “oil and gas route” in foundational to our concerns about unintended consequences of the Proposal.

The  immense amount of conflict between discussions of similar issues present in the Proposal and related analysis is immense. The Organizations are simply unable to understand what the decision or proposal is that is being presented in order to make an intelligent comment.  The conflicting analysis and basic positions in the Proposal starts almost immediately as the Proposal starts from the position:

“The purpose of this RMPA process is to evaluate alternative approaches for oil and gas planning decisions to maintain, conserve, and protect big game corridors and other big game HPH on BLM-administered lands and Federal mineral estate in Colorado. This draft RMPA/EIS establishes goals, objectives, and needs to address conflicts or issues related to oil and gas development and big game HPH.”[10]

The Proposal continues this discussion as follows:

“During the scoping and alternatives development process, a number of individuals and cooperating agencies requested that the BLM consider an alternative that would address other non-oil and gas land uses, such as recreational trail development, renewable energy (e.g. solar farms), and livestock grazing. This recommendation was based on the supposition that there is a correlation between other non-oil and gas land uses and declines in big game populations or significant degradation of high priority habitat on BLM-administered public lands within the decision area. This alternative was considered but eliminated from detailed analysis because under each of the alternatives considered in detail”[11]

The immediate and complete conflict of these positions on recreation and trails starts almost immediately in the Proposal as goal #4 of the effort is summarized as follows:

“OBJECTIVE: During each 5-year period following RMPA approval, identify, reclaim, or enhance acres of HPH for big game habitat statewide. Priority treatment areas should include (but are not limited to) aspen, riparian areas, winter range, and migration/connectivity areas. Actions to help accomplish this objective in relations to and as mitigation for oil and gas developments may include:

• • Improving wildlife movement or habitat connectivity by modifying or removing unneeded structures (roads, trails, fences, well pads, etc.),
  • Eliminating redundant routes, converting mode of travel for specific routes, or realigning routes into less impactful settings,
  • Utilizing seasonal area or route closures within HPH, implementing vegetation management practices that maintain or enhance connectivity and forage production (e.g., fire treatment, timber harvest).” [12]

The Organizations are entirely unable to align any assertion the Proposal does not address recreational access and routes when the clearly stated Goal #4 of the Proposal is to address recreational access.  Any assertion that Goal #4 is incorrectly stated is simply without factual basis as the Proposal provides extensive analysis of the relationship of recreational trails and the goals and objectives of the Proposal as follows:

“Continued and increased use of roads and trails, both by motorized and nonmotorized users with increased populations in Colorado and interest in using public lands for recreation could lead to increased recreation pressure, which would continue to disturb vegetation that could result in a reduction of soil stability and a corresponding increase in erosion rates. Road construction has also occurred in association with timber harvesting, historic vegetation treatments, energy development, and mining on BLM-administered lands, private lands, State of Colorado lands, and National Forest System lands. The bulk of new road building is occurring for community expansion and energy development. Road construction is expected to continue and could also contribute to reductions in vegetation cover under all alternatives, particularly when combined with fluid mineral development.”[13]

We are simply unable to align this provision in any meaningful manner with the assertion that trails and recreation are not within the scope of the analysis. The conflict between basic positions on recreation only expands when subsequent portions of the Proposal are reviewed:

“For density outputs related to trails, the Colorado Trail Explorer (COTREX) was used as a data source for every trail in the state of Colorado. COTREX connects people, trails, and technology by coordinating the efforts of federal, state, county, and local agencies to create a comprehensive and authoritative repository of recreational trails for public use. COTREX represents a seamless network of trails managed by over 225 land managers.”[14]

Rather than recreational access being removed from further analysis in the Proposal as asserted, the Proposal specifically includes recreational access as a factor to be addressed in calculation.  Rather than addressing possible impacts to recreation from the Proposal, the Proposal introduces the new concept of compensatory mitigation where trails could be closed to offset oil and gas development. The Proposal outlines this model for compensatory mitigation of oil and gas impacts as follows:

“The BLM may require compensatory mitigation to offset disturbance or density limitation exceedances and the functional loss of habitat from oil and gas development in HPH. The BLM will ensure that compensatory mitigation is strategically implemented. The compensatory mitigation program will be implemented at a state level in collaboration with BLM’s partners (e.g., federal, tribal, and state agencies). Compensatory mitigation may include reclamation of existing disturbances outside of the proposed development (e.g., orphaned oil and gas development, redundant travel routes, unauthorized route and recreation use, fence removal), establishment, enhancement, and preservation of big game HPH (e.g., seeding, noxious weed control, vegetation treatment). Compensatory mitigation requirements may match the magnitude of the anticipated impacts.”[15]

The Organizations are even more concerned that the exceptionally small amount of information that is provided on compensatory mitigation creates more confusion and conflict than it resolves. The desire to create compensatory mitigation program is clearly identified as follows in the Proposal:

“OBJECTIVE: Implement an effective compensatory mitigation program consistent with state regulation and policy that compensates for adverse direct and indirect impacts to big game HPH at multiple scales, including the landscape scale, caused by the authorization of oil and gas development activities where cumulative disturbances from land uses on BLM-managed lands and minerals may impede migration or otherwise impair the function of big game HPH. The compensatory mitigation program should provide ample financial resources to offset functional habitat loss and result in conservation benefit to the species, consistent with BLM’s Manual Section (MS-1794) and Handbook (H-1794-1).”[16]

The Organizations would be vigorously opposed to the creation of an entirely new program for compensatory mitigation as this is entirely outside the scope of the Proposal. When we are presented with goals and objectives of the Program that are outlined as “ample financial resources” we must ask who manages these funds, who determines what an ample financial resource is and how it would be allocated.

The Proposal entirely fails to describe what compensatory mitigation means, who would administer the compensatory mitigation program outside its abstract financial goals and objectives, how it would be calculated or applied is never discussed in the Proposal. The Organizations concerns around this concept only expands when concepts  such as “functional loss of habitat” or indirect impacts are addressed, as these concepts simply are not even defined. We must ask what an unauthorized recreational usage even is as most recreational usages, outside motorized activities, are entirely unmanaged on public lands.

The immediate concern would be administration as given the cavalier method of addressing state involvement, this compensatory mitigation effort could be allocated to ECMC, which is an organization that has ZERO background or experience with recreational opportunities. After a brief review of the ECMC statutory authority, which we recognize can require performance and surety bond obligations for drilling and other activities, we are unable to identify any authority of ECMC to collect or manage funds in the manner or any checks and balance s on the allocation of these funds that they will be used in the manner proposed. [17]

Rather than avoiding conflict with routes that are allegedly grandfathered, the Proposal creates immediate conflict between these uses, as there will be an incentive for oil and gas exploration efforts to close existing trails. The Organizations vigorously oppose any assertion that the Proposal avoids impacts to recreational access as this is one of the primary goals of the Proposal and one of the primary tools to be utilized in the implementation of Proposal.

5(c) Basic characteristics of an oil and gas route must be defined.

As the Organizations have previously noted the Proposal fails to provide even basic guidance on general concepts or ensure that the concept is within the scope, purpose and need of the EIS.  While many of these concepts are highly complex and outside the scope of comments from a  recreationally based interest, the Organizations concerns explode when these concepts proposed are attempted to be applied to travel management concepts and larger efforts around recreational access on public lands. The Organizations are aware that many basic concepts in recreation that are well settled, such as Wilderness or Roadless Areas are not even mentioned in the Proposal.

When application of the Proposal to the more nuanced but highly critical analysis of travel management  is attempted, the Proposal simply fails in almost every way possible. The need to define the concept of an “oil and gas route” in the Proposal is critical as routes can take many forms, and while the BLM may only designate routes, as the Proposal seeking to address USFS and BLM lands, we must also recognize that the USFS designates many types of routes including:

1. administrative routes;
2. single track trails which are not wider than 30 inches;
3. ATV trails not wider than 50 inch;
4. Side by Side Trails not wider than 64 inches;
5. Trails allowing full size vehicles;
6. Winter only trails; and
7. USFS has 5 different levels of road designations that range of limited use trails to high speed county roads.

The Proposals fail to address these specific designations is exemplified by the consistent referral to all access methods as  routes without recognizing there are dozens of types of routes. If a compensatory mitigation program is being created with the  Proposal that would be applied on USFS managed lands, alignment with USFS regulations on roads and trails would be critical to its implementation. Understanding such as this is critical to understanding possible impacts to wildlife and development of a functional compensatory mitigation program. Most of these routes are unrelated to oil and gas and have widely variable impacts to wildlife.

5(d) The Proposal fails to address what an oil and gas vehicle might be and includes definitions of activities that are not related to oil and gas in any manner.

The immense number of types of routes must be addressed in the Proposal as we have trouble seeing a 30inch wide dirt path being identified as an oil and gas route. The need for basic definitions only becomes more critical as the nature of the usage of the route must also be addressed to determine an oil and gas route. The Proposal completely fails to provide guidance on what an oil and gas vehicle would be, making identification of an oil and gas route functionally impossible.

The vast majority of vehicles on Colorado roadways are entirely unrelated to oil and gas activities but the Proposal provides such a comically broad definition of vehicle as to render the definition of vehicle useless for identifying an oil and gas route. Motorized vehicle as defined in the Proposal directly conflicts with Colorado statutes on a profound and basic level as the Proposal provides the following definition.

“Motorized Vehicles—Vehicles propelled by motors or engines, such as cars, trucks, off-highway vehicles, motorcycles, snowmobiles, and boats.”[18]

The Organizations simply cannot overlook the utterly astonishing that the Proposal feels the need to identify boats as a motor vehicle within the scope of analysis of the Proposal.  We must question how this category of usage was thought to be necessary.  While exploration for oil and gas with boats may be common in the Gulf of Mexico, we are unable to identify any oil and gas drilling that has occurred in Colorado that relies on boats.

Given that the Proposal appears to be creating a compensatory mitigation program that would then be administered by ECMC, basic alignment of the scope of the compensatory mitigation program and existing Colorado law would be a foundational concern. The Proposal completely fails at this type of alignment. There is no mention that OHVs are not motor vehicles under CRS, but rather are separately defined as “Off-highway Vehicles” under Title 33-14.5 of the CRS.  The overwhelming portion of roads are not available for OHV use in Colorado.  Snowmobiles are also clearly not motor vehicles within general provisions of CRS but are separately identified as “over the snow vehicles” under CRS 33-14. By operation of Forest Service regulations snowmobiles do not operate on roads, regardless of the width of the route.  These routes are identified as trails simply to identify the lower level of maintenance on groomed trails and the fact these routes are not available for wheeled vehicles.    These definitions are in comical conflict with assertions that the Proposal will not impact travel management decisions. The Proposal clearly does not even understand the basic concepts  of travel management.

While the Proposal includes boats in the scope of analysis, the Proposal fails to recognize that huge portions of oil field work in performed by heavy equipment, such as road graders, bulldozers, front end loaders, back hoes, excavators, heavy specialized pumping equipment heavy duty truck-based drilling equipment and commercial heavy duty transport trucks. Absolutely none of this type of usage is addressed in the Proposal, despite the fact often these are not motor vehicles under Colorado statutes. Colorado statutes provide numerous other designations for these types of vehicles all of which specifically remove them from the definition of a motor vehicle. As examples of this would be CRS 35-38-102 which specifically defines equipment as follows:

(2) (a) “Equipment” means a machine designed for or adapted and used for agriculture, horticulture, floriculture, livestock, grazing, light industrial, utility, and outdoor power equipment. “Equipment” does not include earthmoving and heavy construction equipment, mining equipment, or forestry equipment.

The need for a basic definition of the equipment within the scope of a motor vehicle is immediately apparent as Colorado uses many different provisions to define equipment and they are all different. CRS 42-1- 102(33) which provides a definition of farm tractor as follows:

(33) “Farm tractor” means every implement of husbandry designed and used primarily as a farm implement for drawing plows and mowing machines and other implements of husbandry

CRS 42-1-102 again provides a specific definition of implement of husbandry

“(44) (a) On and after July 1, 2000, “implement of husbandry” means every vehicle that is designed, adapted, or used for agricultural purposes. It also includes equipment used solely for the application of liquid, gaseous, and dry fertilizers. Transportation of fertilizer, in or on the equipment used for its application, shall be deemed a part of application if it is incidental to such application. It also includes hay balers, hay stacking equipment, combines, tillage and harvesting equipment, agricultural commodity handling equipment, and other heavy movable farm equipment primarily used on farms or in a livestock production facility and not on the highways. Trailers specially designed to move such equipment on highways shall, for the purposes of part 5 of article 4 of this title, be considered as component parts of such implements of husbandry.”

As another example of why a specific definition of oil field is needed is the fact CRS 41-2-102 provides a specific definition for special mobile machinery:

“(93.5) (a) “Special mobile machinery” means machinery that is pulled, hauled, or driven over a highway and is either:

(I) A vehicle or equipment that is not designed primarily for the transportation of persons or cargo over the public highways; or

(II) A motor vehicle that may have been originally designed for the transportation of persons or cargo over the public highways, and has been redesigned or modified by the addition of mounted equipment or machinery, and is only incidentally operated or moved over the public highways.

(b) “Special mobile machinery” includes vehicles commonly used in the construction, maintenance, and repair of roadways, the drilling of wells, and the digging of ditches.”

The compelling need for a basic definition of what is and is not included within the scope of the Proposal could not be more directly evidenced by this situation.  While the Proposal has managed to address the use of boats within the definition of motor vehicles for oil field operations, we simply cannot see boat management as a concern in the operation of oil and gas operations in Colorado. That is simply silly. How boats were thought to be worthy of inclusion of the definition, equipment is simply not even mentioned in the definitions.

This is despite the myriad of definitions and classifications that are available for equipment under Colorado statutes this is not addressed but OHVs are defined in multiple locations in the Proposal.  While the Proposal asserts to not be impacting existing travel management, based on the information and definitions provided, the motorized recreational community is left with the feeling that we are the target of this Proposal.  Again, the immediate conflict between the intent of the Proposal and implementation of the Proposal could not be more stark.  If protection of wildlife is the priority, wouldn’t a proposal that addressed 100k lbs. trucks traveling on high-speed roads be a higher priority than an off-highway motorcycle, ATV or SxS or boat?   Contact between trucks and wildlife are commonplace and contact with an OHV is almost entirely unheard of.  Contacts between deer and elk and a boat are simply foolish to even address in a Proposal, but yet the Proposal seems to think this is enough of an issue to include boats as a motor vehicle.

5(e) Uses of an oil and gas route must be clearly defined

As we have previously noted the Proposal completely fails to provide a definition of a motorized vehicle that encompasses normal oil field activity or a definition of route that is of any value whatsoever is problematic. The confluence of these two failures results in profound problems for the Proposal when it is implemented. How is anyone supposed to understand how to identify what an oil and gas route even is?  This would be the first step to implement the Proposal.  This is a basic problem that immediately causes concern around the adequacy of NEPA analysis. How is route density calculated? Does this only include routes that are under the exclusive control of the oil field permitees to connect the well site to a public roadway?  Even with exclusive usage, questions such as how often the route is used and for what is the route being used are a problem. We doubt that is the issue.

These challenges are immediately concerning if the route connecting the pad site is not open to the public but is used for many permitted uses such as a rancher using a route to access infrastructure or private land owners using the route in addition to the oil and gas permittee?  How can these uses be divided without definitions? The answer is they cannot and this will immediately create unintended impacts from the Proposal.

If the definition of oil and gas route is broader than the short connector between a public roadway and a well pad that is exclusively used by the permittee, we are immediately faced with problems on the lack of a definition for oil and gas equipment or motorized vehicle. If we had clear definitions for these uses at least we could have a meaningful discussion exploring levels of usages of these mixed usage public routes.  These discussions could include levels of oil and gas traffic compared to other uses of the roadway.  But we cannot even do that as the Proposal includes everything from horses to canoes to mountain bikes as routes that should be taken into account. This makes us think something is very wrong with the direction of the Proposal, and as a result we are supporting Alternative A simply to avoid the massive unintended impacts of the Proposal.

5(f) The Type and Volume of usage directly relates to possible impacts on wildlife.

Clearly a low speed two track trail  with seasonal closures is of far less threat than a high speed arterial road, such as I-70.  In many of the areas addressed by the Proposal usage of the high speed arterial roads are so complete as it fully displaces wildlife.  This stands in direct conflict to a seasonally closed single track trail that is well managed and only used sporadically.  These types of routes are frequently identified as benefit to wildlife and forest health.

5(g) Many definitions are provided that are entirely outside the scope of an oil and gas type concern.

While the Proposal fails to define uses critical to its asserted purpose, many definitions are provided that are entirely outside the scope of an oil and gas type concern. This causes us immense concern that the intent of this Proposal was never the desire to mitigate just oil and gas activities in possible wildlife corridors, but rather to mitigate all usages.  As the Organizations have noted above there are serious concerns with the Proposal failure ot provide basic definitions to address uses that might be commonly found with oil and gas exploration. Two examples of definitions are provided but are entirely outside the scope of any oil and gas activity we have encountered would be:

“Non-mechanized Travel—Moving by means without motorized or mechanized equipment, such as hiking and horseback riding.”[19]

“Mechanized Travel—Moving by means of mechanical devices not powered by a motor, such as a bicycle.”[20]

We are very concerned that while the use of mountain bikes or horses simply does not occur with enough frequency to warrant discussion if the intent of the Proposal is to only address oil and gas usage, that the inclusion of these types of definitions provides insight into the scope of the effort, which is entirely unrelated to oil and gas activities. If the intent of the Proposal is to develop a cap-and-trade type program where competing interests must purchase the ability to do anything on public lands, this scope of review would be appropriate. Again, this is VERY concerning for the Organizations and would be opposed by us until FAR more clarity on the process has been provided.

5(h) Permits that are applied for but never issued are not a threat to wildlife.

The Organizations are vigorously opposed to the fact that that the mere application for an oil and gas permit is now something we are going to have to  monitor. The process outlined in the Proposal indicates that compensatory mitigation would occur before the permitting process was approved and before anything occurred on the ground.  We are also very concerned mere presence of a permit to use the road or trail does not make the route more of a risk to wildlife.  Again, these are concepts and concerns that might be abstract if the Proposal was limited to addressing oil and gas impacts creating possible wildlife issues in corridors.  We do not believe this is the intent or direction for the Proposal as we believe the intent is to create a cap-and-trade program for all actions on public lands in Colorado, which we oppose as the recreational community simply is not in a position to begin to allocate resources in this manner.

6. Proposal fails to address how corridors designations being created will be managed under existing statutory authority.

The failure of the Proposal to undertake basic analysis in a meaningful manner has led to issues that are unresolvable in the implementation of this Proposal. Mainly what are these wildlife corridors called moving forward. Multiple uses must be balanced based on existing designations.  Are they Areas of Critical Environmental Concern? Are they a general management category?   Statutorily provided authority for Areas of critical environmental concern exists, which is defined as follows:

“(a)The term “areas of critical environmental concern” means areas within the public lands where special management attention is required (when such areas are developed or used or where no development is required) to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards.”[21]

While the Proposal appears to be elevating wildlife above other uses in a manner similar to the designation of an ACEC, the analysis falls well short of sufficient information to support the designation of ACEC.  ACEC designations require public engagement on a site specific analysis of the characteristics that are important and relevant to the designation of the ACEC.   The failure of the Proposal to even begin to address important and relevant characteristics of these areas would preclude any discussions of how these new analysis areas would be integrated into BLM management requirements is again an example of the complete failure of the Proposal to address issues with any level of legal sufficiency.

7(a)(1).  NEPA mandates detailed statements of high-quality information for all decisions made in the planning process.

A brief review of NEPA requirements provided in regulation, various implementation guides and relevant court rulings is warranted to allow for comparison of analysis provided in the Proposal and the proper standards for this analysis. The Organizations believe that the high levels of quality analysis that is required by these planning requirements   frequently gets lost in the planning process.  The Organizations are very concerned that the need to document the cause-and-effect relationship between management changes and impacts that will result is a significant weakness in the Proposal.  It is well established that NEPA regulations require an EIS  to provide all information under the following standards:

“… It shall provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment….. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses…. “^[22]

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

“You must describe the proposed action and alternatives considered, if any (40 CFR 1508.9(b)) (see sections 6.5, Proposed Action and 6.6, Alternative Development). Illustrations and maps can be used to help describe the proposed action and alternatives.”^[23]

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

“The CEQ regulations require NEPA documents to be “concise, clear, and to the point” (40 CFR 1500.2(b), 1502.4). Analyses must “focus on significant environmental issues and alternatives” and be useful to the decision-maker and the public (40 CFR 1500.1). Discussions of impacts are to be proportionate to their significance (40 CFR 1502.2(b)).” ^[24]

The Organizations are intimately aware of the high burdens placed on all phases of any project under the National Environmental Policy Act, as the Organizations have undertaken many NEPA analysis in partnership with Federal Agencies in Colorado. The Organizations do not believe a comparable level of analysis and resources have been directed towards the Proposal preparation, despite the much larger issues and concerns that are addressed in the Proposal, and the failure to perform these analysis has directly resulted in a Proposal that suffers from numerous critical flaws.  The Organizations believe this full and fair discussion of many issues has not been provided in the Proposal.

7(a)(2).  NEPA is designed to stimulate public involvement and scrutiny.

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

“(b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. “^[25]

The desire for NEPA analysis to stimulate public involvement and comment as part of federal planning actions is woven throughout the NEPA regulations and the implementation documents that have been created by BLM for NEPA issues. The BLM Planning manual clearly states:

“The CEQ regulations also require that agencies “make diligent efforts to involve the public in preparing and implementing their NEPA procedures” (40 CFR 1506.6(a)).”^[26]

The Organizations vigorously assert that high quality information on numerous issues has simply never been provided in the Proposal, as the Organizations are forced to theoretically address numerous issues despite the asserted priority and importance of the issues in the Proposal.  The lack of high-quality information has materially impaired the Organizations ability to meaningfully and completely comment on a variety of issues.

Given the numerous documents and guidelines that have been overlooked in the creation of the RMP, the Organizations believe that that this failure has caused the range of options to be directed in a manner that is improper compared to the direction the range of alternatives would have addressed had these guidelines and documents been accurately addressed when the original vision for the RMP was created.  Given the foundational nature of these documents, the travel management portion of the plan should be withdrawn to allow for complete and accurate inclusion of these foundational documents in the creation of the RMP.

7(a)(3).  NEPA requires an EIS to address issues with high quality information and analysis.

After a review of the DRMP, the Organizations vigorously assert there has not been sufficient  analysis of numerous issues  to satisfy general NEPA planning requirements.   The NEPA regulations clearly state the general standards for analysis  of issues in an EIS as follows:

“Agencies shall focus on significant environmental issues and alternatives and shall reduce paperwork and the accumulation of extraneous background data. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses. An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions.”^[27]

The Proposal encompass over hundreds of  pages but fails to provide any meaningful discussion of economic and travel management issues, both of which have received significant public input.

7(a)(4).  NEPA requires a balance of uses and addressing of cumulative impacts.

As previously noted, NEPA requires a detailed statement of why a decision or alternative was chosen over other alternatives. The detailed statement is required on a wide range of topics, some of which often conflict.  One of NEPA’s fundamental goals is to:

“promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” ^[28]

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

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

“Cumulative impacts can result from individually minor but collectively significant actions.”^[29]

The Organizations believe these cumulative impacts can take many forms, including not only addressing cumulative impacts to the environment but also addressing the cumulative impacts of the decisions made on a site-specific basis as part of the landscape level planning process. The Organizations also believe cumulative impacts of exclusions in the analysis of specific factors must also be properly addressed.   The Organizations believe this has not occurred when addressing the stimulation of the welfare of man.

7(a)(5). Relevant Court rulings addressing NEPA standards directly apply the NEPA regulations.

The Organizations believe a brief summary of the standards that are applied by Courts reviewing agency NEPA analysis is relevant to this discussion as the Courts have consistently directly applied the NEPA regulations to EIS review.  Relevant Court rulings have concluded as follows:

“an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.”^[30]

As previously addressed in these comments, public involvement simply has not been stimulated and a hard look has not been performed.  The high levels of frustration expressed from the public in response to the release of the Proposal speaks volumes to the quality of information provided and the ability of the public to comment on the information.

8(a) The Range of Alternatives provided is completely insufficient.

The Organizations expressed significant concerns with the factual and scientific basis of the proposed mile per mile route density standard in our scoping comments. It is woefully inadequate as every alternative in the EIS caps density at a 1 mile of route per square mile standard.   Unfortunately, rather than addressing the concerns raised in the scoping about the viability of this standard,  the EIS avoids this question all together.  Again, we must ask how this standard was developed and what are the benefits of the 1 route mile per square mile standard when compared to a standard of 2 route miles per square mile or 3 route miles per square mile. As we noted in scoping, we are aware of numerous proposals that supported route densities of 4 to 5 miles of routes per square mile in designated critical habitat for endangered species. Given that deer and elk are only protected as a multiple use of public lands, rather than as an Endangered Species, the mile per mile standards simply does not reflect existing planning, special designations of lands by Congress or other factors.

The failure to provide basic definitions necessary to meaningfully discuss possible impacts of implementation has  resulted in a Proposal being provided for public comment that has many viable options for management not being explored.  Many of these flaws are completely inconsistent with other research and shock the consciousness of many members of the public, user groups and government officials when they  are made aware of  these flaws.  The Organizations believe these analysis flaws have resulted in a range of Alternatives  being presented that simply bears no rational relationship to the planned usage or benefits that are currently accruing to the local communities from the recreational usage of the Proposal or possible impacts to these communities from these changes.

Providing an accurate and reasonable range of alternatives to the public as part of the NEPA process is a critical component of the NEPA process.  The rational decision-making process of  NEPA is compromised when agencies consider only a limited range of alternatives to their proposed projects.^[31]  When reviewing ranges of alternatives provided in a NEPA analysis, the courts have consistently held:

“The alternative section is ‘the heart of the environmental impact statement,‘ 40 C.F.R. 1502.14; hence, ‘[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” ^[32]

When determining if an EIS has provided a satisfactory range of alternatives,  Courts have held the proper standard of comparison is to compare the purpose and intent of the EIS to the range of Alternatives provided.  The Courts have consistently and specifically held as follows:

“[E]nsure that federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences, and [to] provide the public with information on the environmental impact of a proposed action and encourage public participation in the development of that information.” ^[33]

Given the numerous documents and guidelines that have been overlooked in the creation of the Proposal, the Organizations believe that these failures has caused a range of alternatives to be presented that are significantly different from the range of alternatives that would have been presented if many priority concerns had been accurately addressed when the original vision for the Proposal was created.

8(b). Habitat is a multifaceted effort that is not reflected by simply mapping roads and trails.

The Organizations are very concerned that the Proposal starts from a position that the primary factor degrading wildlife habitat was trails and roads, which is in direct conflict with existing NEPA processes that have provided a steady and increasing population of species on the public lands across the state.  Habitat effectiveness mapping has been highly effective in mapping sage grouse habitat. ^[34] We are unsure how this relationship was identified in the Proposal, as best available science clearly concludes habitat is impacted by a wide range of factors, some of which are manmade and many of which are entirely natural. A recent example of the natural forces that can have catastrophic impacts on wildlife populations would be the massive winter kill of deer and elk that occurred in  Northwestern Colorado over the winter of 2022/23.  Closing trails or reducing human activity will not change these impacts in any manner.

As we have noted above, significant changes to wildlife populations have occurred as a result of management efforts and context for that decision matters. Without context we could equally assert that populations decreased during times of travel management plans being implemented.  Without context, this decision could be asserted to be accurate even though it is not, as the population declined while trails were being closed. The relevant factor in the habitat is the fact these were both management actions that were not related to each other, other than the fact they were occurring at the same time. Clearly elevating one factor and ignoring other factors can lead to bad management, and we would like to avoid this in the future as it makes no sense.

An issue that would represent a factor that degrades habitat and negatively impacts populations would be the reintroduction of the gray wolf, and these types of impacts would never be offset by closing routes.   Many challenges like climate change are entirely unrelated to forest management decisions. Other challenges such as the pine beetle epidemic or wildfire impacts or flooding issues are entirely unrelated to road density.  The Proposal is entirely silent on how the decision to move from habitat effectiveness to merely mapping route density was made and we believe lead some conclusions that simply cannot be supported.  Based on the overweighting of roads as the sole factor, any area that has no roads such as Wilderness areas should be hugely effective as wildlife habitat.  This is simply not the case as Wilderness areas are also some of the hardest hit areas for pine beetle and fire.

While the Proposal is entirely silent on how the decision was made to only address road density, CPW documentation from GMU in the GMUG planning area discuss the wide range of factors impacting habitat in great detail. This discussion is as follows:

“Elk utilize a range of habitats, depending on the season and conditions. Elk movement and subsequent distribution patterns are influenced by many factors, such as weather, vegetation (Lyon and Jenson 1980, Hurley and Sargeant 1991, Sawyer et al. 2007), and wild predators (Hebblewhite et al. 2005). A growing body of information also supports that elk habitat utilization is influenced by several anthropogenic factors, including: non-hunting recreation (Phillips and Alldredge 2000, Kloppers et al. 2005), hunting recreation (Walsh et al. 1991, Conner et al. 2001, Johnson et al. 2002, Viera et al. 2003, Sunde et al. 2009, Cleveland et al. 2011, Rumble et al. 2005), off-highway vehicle traffic (Preisler et al. 2006, Wisdom et al. 2005), road traffic (Perry and Overly 1977, Lyon 1979, Rost and Bailey 1979, Witmer and deCalesta 1985, Preisler et al. 2006, Sawyer et al. 2007, Montgomery et al. 2013), resort/residential development (Picton et al. 1980, Morrison et al. 1995, Wait and McNally 2004, Shively et al. 2005), and mineral extraction (Kuck et al. 1985, Webb et al. 2011). It appears that combinations of these anthropogenic and or natural factors produce a nonlinear habitat utilization response in elk (Frair et al. 2008). Support for some of these elk-habitat selection relationships (i.e., road impacts on elk movement) are currently being demonstrated in preliminary analysis of elk movements in the Gunnison Basin and West Elk Mountains (Appendix 3, section 6).^[35]

CPW has also expressed similar concerns around deer populations and the effectiveness of deer habitat as follows:

“There hasn’t been any factor pinpointed for the decline and it is most likely caused from a combination of reasons related to habitat availability and condition.”^[36]

The Organizations are aware that exceptionally complex models have been created to model the complexity of factors that will impact habitat effectiveness on a landscape.^[37]  The Organizations have also vigorously supported the efforts of the USFS to more completely understand recreation, habitat and other factors that impact wildlife. The complexity of this relationship cannot be understated but can now be actively tracked and more completely understood by the real time comparison of wildlife and recreational users on the landscape as evidenced by the following maps^[38]:

With data like the maps above, we simply must question why highly generalized landscape standards would be pursued instead of this highly detailed data that is already available. The immediate conflict of many of the landscape tools in the guide and management efforts from our federal partners is apparent as US Fish and Wildlife Service has a 76-page manual available for development and management of roads in National Wildlife Preserves.^[39] The USDA Natural Resource Conservation Service also has extensive guidance on habitat mapping and the relationship of this to on the ground issues. A complete copy of chapter 5 of the NRCS guidance on mapping and recreation is attached as Exhibit “5”.  Clearly, the NRCS guidance is well beyond anything akin to mile-by-mile habitat analysis.

8(c). Draconian trail density standards of one mile of trail per square mile is unprecedented and conflict with previous site specific NEPA analysis on the GMUG.

The Organizations must start our discussion on the inconsistency with what has been proposed as best available science in the Proposal and what has resulted from travel management planning on each of the forests with a question.  Why is there a perceived need to make large alterations to the existing travel management decisions with the adoption of route density standards and other exclusive use concepts in the alternative?   Some of these travel management decisions were only recently completed and every one of which has been updated multiple times over the life of the old RMP, further calling into question many of these asserted needs to change.

The Organizations would note than many of the groups pushing for restrictive travel density decisions are the same groups that pushed for large scale route closures in the previous rounds of travel management.   The Organizations have sought balance and meaningful analysis of challenges and thoughtful responses in management that will address these issues. The trail density standards that are proposed are another issue where we continue to seek meaningful analysis of information on challenges and topics but must question why this standard is thought to be needed after so many rounds of travel management decisions have provided decisions to the contrary. Our concerns on this issue are based on the immense conflict between the asserted need for these standards and the actual data on the issue.  These two resources tell very different stories and fail to justify imposition of the draconian management standards that are proposed.

As an example of an existing RMP and travel management process we look to the Gunnison Travel Plan finalized in 2016 which  used a threshold of 1.9 miles of road per mile as a trigger for further analysis of any area of heightened management concern.  We would note that triggering further analysis does not actually require any management action specifically to allow for the other attributes of the habitat or watershed. This road density analysis is explained in high levels of detail in the site specific NEPA as follows:

“An evaluation of road densities, a measure of human activity that can impact water resources, in combination with watershed sensitivity, resulted in the identification of six sub-watersheds with high road densities (greater than 1.9 mile/square mile) within a Sensitivity Class 4 watershed (Table 3-7). These would be areas where the density of roads and trails could have a great influence on watershed function and could be a contributing factor to adverse water resource impacts (Figure 3-1).”^[40]

The Gunnison TMP then proceeded through a detailed discussion of specific routes and specific impacts from those routes in each location that was above the recommended threshold of 1.9 miles of density.  We question how with analysis of this specificity these watershed conclusions of the Gunnison TMP on route densities can simply be overruled by simply ignoring these conclusions and applying the Proposals  mile per mile absolute cap.

The GMUG has also undertaken this type of highly detailed site specific NEPA on a wide range of issues for acceptable road densities based on site specific inventory and analysis.  No specific species or issue identified areas where road densities were found acceptable was in compliance with the proposed 1 mile per mile of densities.  The following chart provides a detailed breakdown of these conclusions of previous management:

As a result of the above standards, we must question how the threshold of 1 mile per mile was found necessary to be an absolute standard rather than a threshold for further analysis and how was the standard found to be necessary for not only roads but also “roads and trails”. If this type of alteration of existing management is actually necessary, this should be the basis of extensive discussion and analysis, rather than the cursory assertions that are now present.

8(d) The draconian mile per mile route density requirement conflicts with 2020 USFS guidance on recreation and wildlife.

As the Organizations have noted above, the populations of deer and elk on public lands are strong and steady, which we believe is an excellent starting point for discussion. Given this situation, the Organizations must question why so much of this Proposal is in direct conflict with 2020 USFS guidance on the relationship of trails and wildlife.  The clear conclusions of the 2020 USFS effort is summarized in the 2020 USFS publication entitled: “Sustaining Wildlife with Recreation on Public Lands: A Synthesis of Research Findings, Management Practices, and Research Needs”^[48]. The 2020 USFS trails and wildlife guide starts with a clear recognition that trails often play a VERY minimal role in degrading habitat which is stated as follows:

“Although large highways and infrastructure associated with urban/ suburban areas have been found to alter ungulate migration patterns, outdoor rec­reation on public lands generally involves human developments at a small enough scale that disruption of major migration pathways (i.e., for larger terrestrial species) is generally not a concern (Alexander and Waters 2000)” ^[49]

The 2020 USFS guidance clearly identifies that low density recreational usages of public lands rarely impacts habitat quality and, in some cases, even high-density development benefits as species.  The 2020 USFS Guidance states this as follows:

“Habitat fragmentation occurs when contiguous habitats are divided into smaller, isolated fragments (Fahrig 2003), e.g., through construction of a road network to access public lands for recreation and other uses. Some species are sensitive to habitat fragmentation, such as large carnivores that may require a large area of continuous habitat, and habitat specialists (i.e., species that thrive only in a narrow range of environmental conditions), while other species are more tolerant of or even benefit from habitat fragmentation (Crooks 2002). Although the presence of low-density unpaved trails developed for recreation is not typically associated with habitat fragmentation for mid- to large-sized species, trails can fragment habitat for species with lower mobility, especially when trail density is high or when trails are wide and paved.”^[50]

The 2020 USFS Guide then goes into a long discussion of specific species issues and studies and it is interesting fails to recommend any standards such as route densities. Given the strong and steady population information that has been provided in detail by CPW, the Organizations would question if most of the proposed management discussions have been resolved on the public lands in Colorado as most species are at or above population objectives.

Rather than applying the highly detailed site and species-specific analysis that this identified as best available science by the USFS, the Proposal seeks to overturn the application of these standards previously completed on the GMUG and move to the overly broad management by landscape standards that the new USFS Guide recommends against. The success of existing management would seem to weigh heavily in continuing to manage the Colorado public lands in a manner consistent with national guidance. This success would also warrant the recognition of the success of this model of management and inclusion of this hugely successful management model as an Alternative in the Proposal.  The failure to even include this in the Proposal as an Alternative is a serious failure in the development of the Proposal.

8(e).  The draconian 1 mile per mile of route density directly conflicts with CPW guidance issued in 2021 on this issue.

The Organizations are again starting a discussion with the statement that the balancing of recreation and conservation interests has been an issue the motorized community has spent significant efforts in collaboration. The most recent guidance that has been issued on this issue was the issuance of CPW’s “Planning Trails and Wildlife Guide” in 2021, which was the result of a multiyear collaborative effort of interests including USFS, BLM, CPW, US Park Service, US Fish and Wildlife Service and nine local communities from across the state. Over the multiyear planning effort, detailed public comment was received from almost 40 groups, including Backcountry Hunters and Anglers, The Wilderness Society and Great Old Broads for Wilderness.   A complete copy of this document is attached to these comments as Exhibit “6”.

We are taking the position this document is clearly best available science on the trails and wildlife density standards issue and provides management guidance that directly conflicts with the direction being provided in the Proposal. Rather than supporting the proposed direction of management in the Proposal, the CPW Guide outlines with detail the site-specific management process and efforts that have already been undertaken on public lands across the State. The similarity of the CPW guide and the new USFS guide cannot be overlooked. This document confirms why this management effort has been successful and why it should not be altered at the landscape level, but rather continues a site-specific basis on an as needed basis.

Initially the CPW Trails and Wildlife Guide outlines a highly collaborative and highly detailed site-specific review of trails and wildlife issues that is very similar to the efforts that have been undertaken in the Travel Management processes on each of the forests on public lands across the state.  As a result, we must question why those efforts would not be highlighted as well ahead of their time and recognized as still being best available science on these types of issues.  The recommended process for planning is outlined in the CPW Guide as follows:

• “FPs, TMPs, & RMPs identify current and future routes, trail uses, closures, and seasonal closures. These planning processes allow advocates to get involved in planning and designing quality trails and systems.
• FLMAs are required to go through the National Environmental Policy Act (NEPA) process prior to making decisions, which, in addition to habitat fragmentation, considers vegetation, soils, air and water quality, and cultural resources. NEPA requires public comment and review opportunities.
• TMP development is a high priority for FLMAs. Many FLMAs have shifted from “open” unrestricted use of public lands to limiting motorized and mechanized travel to designated routes.
• Emphasize early stakeholder and public involvement in the NEPA and TMP processes for Federal lands (as well as state and local).
• TMPs on public lands that change strategies from an open system of travel to limited, generally reduce existing road and trail mileage significantly. New trails or networks located in less impactful areas may be proposed based on local needs with an emphasis on quality over quantity.”^[51]

The Organizations would be remiss if the fact the CPW Guide starts any analysis of wildlife and trails with recognition of management efforts that are in place in any area. This continues to be a struggle for the planners in this effort, as this has not been identified yet.

The CPW Guide recommends a highly site-specific analysis of routes and application of tools such as seasonal closure to reduce route density in sensitive wildlife areas during times such as calving or winter range usages.  Again, we must stress this type of analysis has already been completed in travel management plans already finalized on the forest.  These have been highly successful and the success of these efforts is highlighted throughout the more than 60 pages of analysis in the CPW Guide.  The necessity of highly localized review of issues and challenges as part of this collaboration is specifically addressed on pg.  24 of the Guide CPW clearly identifies as follows:

“There are two important considerations to keep in mind with route density:

• • Site-specific factors, such as topography, may influence the quality of habitat, and are not accounted for in the calculation for route density.
  • Route density calculations do not necessarily account for how trails are spatially distributed across the landscape (Figure 6).”^[52]

On page 27 of the CPW Guide, CPW specifically and clearly states their recommendation for management of priority habitat and the importance of timing restrictions to achieve these goals as follows:

• “Limit trail densities (including existing trails) to less than one linear mile of trail per total square mile, within production areas, migration corridors, and winter range habitats.
• For trails within production areas or winter range habitats, implement seasonal timing restrictions for all trail users.”

Given that the CPW Trails and Wildlife Guide specifically identifies that tool such as seasonal closures should be used to bring seasonally used areas into compliance with general recommendations, we have to question why the blanket application of this mile for mile standard without seasonal closures is now asserted as best available science or even being necessary.  The Organizations assert this type of analysis has already occurred on public lands and has been highly effective. If there was a desire to move to something more restrictive than best available science, this would have to be discussed in great detail and this has not occurred. Again we believe this management model must be addressed as an alternative in the Proposal and has not been raised as even an option.

8(f).  CPW only recommends education of users to address recreational activity in Migration Corridors.

In addition to the final release of the 2020 Trails and Wildlife Guide from CPW, CPW has also issued a detailed report on the management of wildlife corridors and winter range for wildlife in Colorado in 2020. The relationship of population development and expansion in Colorado and its possible impacts on wildlife migratory corridors has been another issue there has been a lot of vocal concern raised regarding. We have actually been told by several organizations representatives  that migration corridors should not have trails of any kind in them and we have heard this repeatedly stated in public meetings on this issue . This is very concerning to us and as a result we are discussing this as well as noting its strategic alignment with the 2020 CPW Trails and Wildlife Guide.

The management of wildlife corridors was the basis for new peer reviewed published work from CPW in May of 2020 Entitled “2020 Status Report; Big Game Winter Range and Migration
Corridors”.  We have attached a complete copy of this new document as Exhibit “3” to these comments. This report goes into great detail regarding issues with winter range and high-speed arterial roads in migration corridors.  The report also highlights the minimal threat that trails pose when compared to high-speed roads for quality of winter range and viability of migration corridors as the recommended management action for trails in these areas is as follows:

“CPW staff will continue working with trail users, NGOs, local municipalities, and other stakeholders to avoid, minimize, and mitigate negative effects from motorized recreation to big game and migration corridors. CPW will continue to educate recreationists regarding their impacts to wildlife and seek methods to effectively influence behavior of motorized trail users.”^[53]

Again, it goes without saying that this CPW Trails and Wildlife management recommendation has largely been completed for motorized trails on public lands in Colorado.  Education of users falls well short of the draconian standard of one mile per mile in habitat areas that is being proposed. Again, we vigorously assert the Proposal must apply best available science on this issue.

8(g) The proposed route density standard conflicts with 2020 USFS Guidance documents on the trails and wildlife issues.

As the Organizations have noted previously, the Proposal route density limit conflicts with best available science from CPW on management of trails and wildlife.  While the CPW documents have been in development, the USFS has also been creating new guidance documents on management of Trails and Wildlife. This culminated with the issuance of the USDA report entitled “Sustaining wildlife with recreation on public lands: A synthesis of research findings, management practice and research needs” in December of 2020.^[54]

Again, the Proposal fails to comply with this guidance document either as at no point does the USFS guide recommend anything similar to a general or landscape level analysis or standards, such as that proposed. Rather the guide outlines the highly site-specific nature of the relationship between trails and wildlife. This report addresses issues on a species-by-species basis rather than the more topographically based manner used in the CPW Guide. The USFS report identifies general factors such as the difference in concerns when comparing a road to a trail, which is identified as follows:

“Although the presence of low-density unpaved trails developed for recreation is not typically associated with habitat fragmentation for mid- to large-sized species, trails can fragment habitat for species with lower mobility, especially when trail density is high or when trails are wide and paved.”^[55]

New USFS wildlife and trails guide specifically states the highly variable nature of impacts along the scale from high-speed arterial roads to low-speed single track trails as follows:

“Although motorized activity can disrupt important migration corridors, note that this disruption is more strongly influenced by highway traffic than is typical of trail-based motorized recreation (Lendrum et al. 2013, Sawyer et al. 2012).”^[56]

The USFS guide also notes the importance of seasonally used areas as follows:

“Because seasonal behaviors vary by species, the information provided here requires biological knowledge of local species of concern. As described above, the reproductive status of individuals influences the response of individuals and groups to recreational activity.”^[57]

The Organizations again vigorously assert that the Proposal must align with best available science on trails and wildlife and this analysis has been outlined with a high level of detail by both the USFS and CPW.  As we have noted before these processes apply highly site-specific analysis due to a wide range of factors, and this has already been completed on public lands and yields conclusions that are in conflict with the proposed mile per mile standard that is proposed.   We must ask why there would be a desire to change this as the change conflicts with Best Available Science and has been highly effective already.  This is an issue we should be celebrating the success of rather than discussing how to start from the ground up.

9(a)(1) The decision to apply high priority habitat calculation to entire GMUs will lead to foolhardy management problems.

The Organizations are very concerned that the Proposal makes critical decisions without providing any analysis of how these decisions were made. One critical decision provided in the Proposal with no analysis whatsoever is the decision that analysis would only be performed on high priority habitat for the species but then applied to the entire game management unit. Often habitat areas only encompass a small portion of planning areas but the proposal appears to be asserting that every acre of habitat is equally valuable to every species.  That position is simply lacking in factual basis of any kind.

Despite the indefensible nature of the position, the Proposal asserts that major communities, such as Grand Junction, Durango, Glenwood Springs Denver, Colorado Springs, Fort Collins  are viable habitat for species.  This could not be further from the truth as these areas have been heavily developed for possibly centuries. The comically inaccurate nature of the Proposal analysis on this issue is outlined by the following map:

[58]

The utterly ridiculous implications of applying density standards outside of habitat areas is immediately evidenced, when possible, analysis issues applying the analysis creates.  Should the city of Denver worry about route density and wildlife impacts if they are renovating the Convention Center in downtown Denver?  The Broncos want to renovate Mile High Stadium so they must address route densities and wildlife impacts?   These are EXACTLY the types of questions that the Proposal is creating for analysis when HPH standards are applied to entire GMU.

While these situations are somewhat remote in their application, we can absolutely see analysis have to be done for maintenance plans for urban parks and other resources.

9(a)(2) How will the proposal impact urban parks?

As we have noted the Proposal lacks meaningful definitions of oil and gas vehicles and route that could be used to determine what is and is not an oil and gas route.  The Proposal also lacks any ability to determine what a route is. The expansion of the Proposal from only HPH to all areas in the GMU creates immense concerns, even if these definitions were present, for uses such as urban parks and greenway areas. These are frequently located in areas immediately adjacent to oil and gas wells throughout the state. If we use the proposal standard of a mile per mile in density the relationship of oil and gas activity and urban parks and greenways only expands.

This forces us to ask has anyone talked ot local governments about their concerns about this issue?  We are immediately concerned that the idea of local governments having to address route density in areas that were never habitat for the species if they wanted to expand a trail network in the Park would probably not be received well. Would the local government have to obtain compensatory credits for this type of a project as it would increase trail density and not remove trail density?  Utterly no guidance is provided on an issue such as this despite it being well within the marginal definitions that are provided in the Proposal.  Would basic maintenance efforts now have to comply with timing requirements in the Park? The Proposal does not even come close to recognizing these types of impacts from expanding the analysis from just HPH to entire GMU.

9(c) Surface disturbing activity includes many things outside just oil and gas.

The failure of the Proposal to provide meaningful definitions on basic terms will create more intended consequences. The USFS and BLM have started to address poor forest health in the State by the development of large timber and fuels mitigation projects and often these projects are benefiting wildlife while protecting homes and communities. These efforts absolutely fall within the scope of a surface disturbing activity.  How would these projects be addressed?  Many of these types of projects are within a mile of oil and gas pads or possible oil and gas routes. Utterly no guidance is provided on how impacts to surface disturbance calculations would be addressed from fuels projects on existing calculation.   Again, these are basic issues that should have been addressed as part of the decision to apply calculations to areas outside the HPH on a GMU basis.

This is going to be a huge problem outside just the dispersed trails community.   Will developers renovating existing housing to provide low-income housing now have to provide compensatory mitigation for their efforts?  We doubt that has been thought about despite assertions the Proposal will not impact underserved communities.  These are management implications and impacts that must be addressed but cannot as we simply lack meaningful definitions to identify what an oil and gas route even is.  These ramifications of the Proposal are entirely foreseeable and have not been thought about and must be.

9(d). Why would seasonally important areas be protected year round?

We are intimately familiar with the fact that at certain times of the year some locations are highly valuable to species and then at other times of the year these areas are simply not used by species.  Winter range is rarely used in the summer.  Calving areas are rarely used outside calving periods. Commonly we address these as calving areas, winter ranges and other time sensitive designations, such as seasonal closures. Again, we are unable to identify any portion of the Proposal that addresses how these seasonal closures were found insufficient to protect wildlife after they have been found highly effective for decades at addressing timing issues such as this.

The Organizations are also forced to ask how seasonally maintained routes, such as county highways that do not receive winter maintenance of any kind, are addressed in the Proposals route density analysis? Frequently these routes not being maintained protects significant portions of winter range or calving areas from all forms of human contact.  Again, issues such as this simply are not addressed in the Proposal.

9(e).  How is high priority habitat aligned in the decision-making process with multiple species?

The Organizations must also object to the failure of the Proposal to address how the decision has aligned HPH for each species into a single standard. Basic questions are simply never addressed. Questions like:   How is the fact that GMU boundaries do not align for most species addressed in the Proposal?  Often species-specific boundaries have no relationship to each other. Big Horn sheep rarely come in contact with deer simply because of the fact they choose to live in entirely different habitat and areas. Were these boundaries smoothed? Were GMU percentages calculated based on each species?  What is the impact to persons undertaking projects if they need to review multiple species in their project calculations.  What if the GMU is ok for some species and not others?  Answers to these questions will be critical to the implementation of the Proposal on the ground and have simply not even been recognized.

10. What is the relationship of this proposal to the myriad of other landscape level planning revisions that are currently being developed?

The Organizations must also ask how the decisions in the Proposals align with a huge number of other planning efforts, such as resource management plan revisions that are currently being developed.  Currently  we have the Rio Grande NF RMP that is recently completed and is the basis of a legal challenge.  The GMUG NF is currently finalizing their RMP update.  Royal Gorge FO is revising their RMP simply to name a few efforts going on locally.   We would like to understand how these other local planning efforts relate to the Proposal as this relationship will be critical to the development of these efforts and the Proposal.  No analysis is provided on this issue.

The Organizations would also like to understand how national or regional efforts such as the recent USFS/BLM Old Growth Timber effort would align with the Proposal. BLM has also recently released their climate change and sustainability plana long with revisions to numerous regional efforts such as Sage Grouse. The overlap of what are clearly competing concerns around the use of public lands in a for profit manner is a huge concern as the large-scale leasing of public lands by Natural Asset Companies was addressed in the climate change plan.  Given this Proposals desire to apply the cap-and-trade model of management to public lands we must ask how this would be coordinated with mitigation efforts undertaken by NACs.

11. Conclusion.

The Organizations vigorously support Alternative A of the Proposal, as current management has a long history of effectively dealing with the challenges in the Proposal with minimal unintended consequences. These successes simply are never addressed in the Proposal. Our support for Alternative A of the Proposal is further based on the failure of the Proposal to provide even arguable definitions for terms that are critical to the basic understanding of the Proposal, such as what is an oil and gas route or what is an oil and gas vehicle. While critical terms such as this are not defined in the Proposal, other terms are so broadly defined as to defy any reasonable application of them to the Proposal. We simply are unable to understand what uses such horses, mountain bikes, boats, atvs and dirt bikes are addressed in the Proposal as we are unable to identify the consistent use of resources such as these in oil and gas operations.

As current management is highly effective at balancing multiple uses, a detailed and meaningful discussion of how the relationship between wildlife populations, trail density and oil and gas development was identified as even appropriate. The failure of the Proposal to address other basic issues such as how was the mile per mile density cap identified as appropriate when many HPH in the State have route densities well above this threshold already forces us to support Alternative A.  We are hugely concerned that without basic information and analysis such as these unintended impacts from the effort will be immense and immediate.

Our support for Alternative A is further buttressed by the various positions in the Proposal that are clearly establishing a basis for the application of the cap-and-trade model of management to multiple uses on public lands.  We are opposed to any development of this management model for public lands as the Proposal provides no meaningful discussion of how this model would even be used for multiple uses.

The Organizations and our partners remain committed to providing high quality recreational resources on federal public lands while protecting resources and would welcome discussions on how to further these goals and objectives with new tools and resources. If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com) or Chad Hixon (719-221-8329/Chad@Coloradotpa.org)

Respectfully Submitted,

Scott Jones, Esq.
Executive Director CSA
Authorized Representative COHVCO

Chad Hixon
Executive Director
Trail Preservation Alliance

Marcus Trusty
President
CORE

[1] See, Proposal at pg. 3-197.

[2] BEA 2022 State specific reports. Regional GDP & Personal Income | U.S. Bureau of Economic Analysis (BEA)

[3] 43 USC 1701(a)(8)

[4] See, 43 USC 1702(c)

[5] ECMC About Us (state.co.us)

[6] https://www.youtube.com/watch?v=BchEAcSN8gs&t=4655s – the exchange we are referring to occurs at 3:05 into the hearing

[7] The Colorado Springs Gazette final

[8] As an example, Seattle Audubon v Lyons; 871 FSupp2d 1291 Affd 80 F3d 1401; see also  Westside Property Owners v. Schlesinger; 415 F.Supp 1298

[9] See, 42 USC 4332(a)

[10] Proposal at pg. ES-3

[11] Proposal at pg. 2-10.

[12] Proposal at pg. 2-22

[13] Proposal at pg.  3-74

[14] See, Proposal appendix L at pg. 173.

[15] Proposal at pg. 2-19.

[16] Proposal at pg. 2-21.

[17] Financial Assurance FAQ (state.co.us)

[18] Proposal at pg. b-5

[19] Proposal at pg. B-5

[20] Proposal at pg. B-4

[21] See, 43 USC 1702(a)

[22] 40 CFR 1500.1

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

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

[25] 43 CFR 1500.1(b)

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

[27] 40 CFR 1502.1

[28] 42 U.S.C. §4321

[29] 40 CFR §1508.7

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

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

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

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

[34] Quantifying restoration effectiveness using multi-scale habitat models: Implications for sage-grouse in the Great Basin (fs.fed.us)

[35] See, CPW ELK Management plan for GMU E05; June 7 2018 @ pg. 13.

[36] See, CPW Deer Management Plan for DAU 24 Groundhog; March 2014 at pg.2

[37] See, USDA Forest Service; Rocky Mountain Research Station; Interactive Habitat Mapping tool available here: ArcHSI (Arc Habitat Suitability Index) | Rocky Mountain Research Station (usda.gov)

[38] See, Olsen et al; Modeling Large scale winter recreational terrain selection with implications for recreation management and wildlife; Journal of applied Geography; June 2017 at pg. 66.

[39] A copy of this manual is available here: 122968 (fws.gov)

[40] See, Gunnison Basin TMP FEIS at pg. 62

[41] See, USDA Forest Service, Gunnison National Forest; Gunnison Basin Federal Lands Travel Management; Final Environmental Impact Statement; June 2010 @Pg. 109

[42]See, USDA Forest Service, Gunnison National Forest; Gunnison Basin Federal Lands Travel Management; Final Environmental Impact Statement; June 2010 @ Pg. 70

[43] See, USDA Forest Service, Gunnison National Forest; Gunnison Basin Federal Lands Travel Management; Final Environmental Impact Statement; June 2010 @ Pg. 99

[44] See, USDA Forest Service, Gunnison National Forest; Gunnison Basin Federal Lands Travel Management; Final Environmental Impact Statement; June 2010 @ Pg. 98

[45] See, USDA Forest Service, Gunnison National Forest; Gunnison Basin Federal Lands Travel Management; Final Environmental Impact Statement; June 2010 @ Pg. 116

[46] Total obtained by combining road density and trail density provided in DEIS at pg. 189 & 191

[47] Total obtained by combining road density and trail density provided in DEIS at pg. 189 & 191.

[48] We have not included a copy of this document as it is several hundred pages in length but can be downloaded here: Sustaining Wildlife with Recreation on Public Lands: A Synthesis of Research Findings, Management Practices, and Research Needs (fs.fed.us)

[49] See, USFS Trails and Wildlife Guide at pg. 24.

[50] See, CPW Trails and Wildlife Guide at pg. 20.

[51] See, CPW Trails and Wildlife Guide at pg. 11.

[52] See, Colorado Parks and Wildlife; Colorado’s Guide to Planning trails with wildlife in mind; June 2021 at pg. 24.

[53] See, Colorado Parks and Wildlife; 2020 Status Report; Big Game Winter Range and Migration Corridors at pg.31.

[54] See, Miller, A.B.; King, D.; Rowland, M.; Chapman, J.; Tomosy, M.; Liang, C.; Abelson, E.S.; Truex, R. 2020. Sustaining wildlife with recreation on public lands: a synthesis of research findings, management practices, and research needs. Gen. Tech. Rep. PNW-GTR-993. Portland, OR: U.S. Department of Agriculture, Forest Service, Pacific Northwest Research Station. 226 p.  A complete copy of this report has not been included with these comments due to its size.  This report is available to download here. Sustaining Wildlife With Recreation on Public Lands: A Synthesis of Research Findings, Management Practices, and Research Needs (fs.fed.us)

[55] See, Miller et al at pg. 20.

[56] See, Miller et al at pg.

[57] See, USDA Guide at pg. 41

[58] See, Proposal Volume 3 at pg. 198.

US Forest Service
Att: Director  Ecosystem Management
201 14^th Street SW- mailstop 1108
Washington DC 20250-1124
Submitted via portal only

RE: LRMP Direction for old growth forest conditions across the national forest system

Dear Sirs:

The Organizations would like to express our cautious support for the proposed amendments to the 128 LRMP to address old growth forest conditions on both USFS and BLM lands. (“The Proposal”).  Our caution is based on the limited scope of analysis provided in the Prospal regarding how multiple uses are addressed and protected in the Proposal and its implementation.  The Organizations are aware that the entire effort is driven by an Executive Order, which can only clarify implementation of various legal requirements on federal public lands but it cannot alter the multiple use mandate.  The goals and objectives of the Executive Orders that are being implemented in the Proposal must also be balanced with these legal requirements.

The Organizations believe it is important to recognize that the goals and objectives for protection of old growth timber have already been greatly exceeded the goals and objectives for many other factors have not been achieved.  It is sad that we must address such basic issues in comments as these foundational concerns have recently been overlooked in several planning processes with DOI/BLM.  We are addressing these concerns out of an abundance of caution and not a direct concern with specific provisions of the Proposal. Our hope in addressing these failures early in the planning process for this effort is to avoid the immense amount of conflict we are now seeing around the DOI/BLM proposals.

We must state our concerns regarding the fact that many of the tree diameters proposed to be the minimum for designation as old growth are small in size, even if they are measured at breast height.  The Organizations are aware that immense amounts of conflict have resulted from competing interests in timber and recreation as evidenced by the NYS litigation on tree diameter and its impact on the ability to maintain trails on NYS lands.   The Organizations vigorously assert the NYS experience must be used as a learning experience for the USFS effort and allow us to avoid the USFS effort to avoid these problems moving forward. The Organizations would also request more information in the EIS related to altered determinations on tree diameter and how this could relate to management designations and progression of forests through their anticipated lifespan.

Who we are.

Prior to addressing the specific concerns, the Organizations have regarding the Proposal, we believe a brief summary of each Organization is needed.  The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization representing the OHV community seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport. CORE is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. The Idaho State Snowmobile Association (“ISSA”)is an organization dedicated to preserving, protecting, and promoting snowmobiling in the great state of Idaho. Our members may come from every corner of the state, but they all share one thing in common: their love for snowmobiling. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands most of which has occurred on national forest lands. Over 750 individuals have contributed money or volunteered time to the organization. Nevada Off Road Association (NVORA) is a non-profit Corporation created for and by offroad riders. NVORA was formed to specifically fill the void between the government managers and the rest of us who actively recreate in the Silver State. NVORA does this by maintaining a consistent, durable, and respected relationship with all stakeholders while facilitating a cooperative environment amongst our community. Advocates for Multiple Use of Public Lands (“AMPL”) is an organization made up of passionate recreationists, which was formed in 2017.  Our focus includes the organization of public support and the creation of a unified voice to maintain and protect broad access to our public lands for motorized and well as non-motorized recreational uses in a cooperative and cohabitant manner. We believe in the coexistence of recreation and conservation for all. Collectively, TPA, NVORA, CSA, CORE, IRC, RwR, ISSA, AMPL and COHVCO will be referred to as “The Organizations” for purposes of these comments.

The Proposal starts from a very reasonable position on the old growth timber issue as it: 1. appears to have granted a high level of flexibility to local managers to address issues; 2.  recognizes that many RMP in place have already addressed old growth timber issues and forest health more generally; and 3. Recognizes the need to manage the forest to prevent catastrophic wildfire.  Prevention of catastrophic wildfire must be the major planning concern for any land management agency given the horribly unhealthy nature of most forests on public lands.  When public lands are impacted by wildfire the ramifications of wildfires will last decades and these impacts are often far more extensive in both the scale of impacts and scope of geographic area impacted. We support active management for this issue as when an area is impacted by fires or floods recreational access to these areas can be lost for decades. This is very concerning for the trails community and as a result we support the general theory of an ounce of prevention instead of a pound of cure for any management issue.

While the Organizations are supportive of the general flexibility that is provided in the Proposal to address old growth timber issues, we are concerned about several factors in the Proposal as well. The Organizations are very concerned that the diameter of trees that are used for old growth designations appears small and we are very concerned that there will be massive unintended impacts to recreation in all forms and  many other multiple uses if the Proposal becomes overly prescriptive or addresses too many areas. Even if standards are only slightly off or ambiguous, this could impact millions of acres of forest management, and we believe this situation mandates cautious planning designed to balance interests.  The Organizations respectfully submit that EO 14072, which is the primary driver for this effort, really does not require land managers to take any action.  As the USFS April 2023 accurately recognized, huge portions of old growth and mature trees are already protected through various congressional and previous agency decisions. We would assert that recognition of existing protections for old growth must be addressed before the decision was made that more areas must be protected for old growth timber concerns.

2(a) What EO 14072 actually requires for old growth timber.

The Organizations have reviewed EO 14072 prior to preparing these comments and would note that this EO is VERY generalized regarding how old growth timber is to be addressed.  The only specific deliverable that we are able to locate in EO 14072 is the development of an inventory. We are unable to locate any portion of the EO 14072 that requires additional or expanded protection of old growth or mature timber, but only requires restoration and conservation of old growth. We are unable to identify any portion of the EO that requires preservation of old growth. Rather the EO 14072 leans the other direction, that these areas should be protected from wildfire rather than being the basis for further management restrictions. This distinction is critical to the range of alternatives that are provided as there is no requirement to  expand protections of existing old growth from uses unrelated to wildfire. Candidly, land managers should thank the President for highlighting the high levels of protections already in place for old growth and mature timber and simply move on with the challenges they are facing in the management of public lands.

While EO14027 does require restoration and conservation of old growth timber this does not occur in isolation.  President Biden recognized many competing values including the need to address climate change, old growth timber  and recreation with the issuance of EO14072 on April 22, 2022.  EO 14072 is recognized as the driving force for this Proposal but is only referenced as the basis for the old growth management effort.  The scope of this EO is far wider as EO 14072 specifically recognizes and protects recreational usages as part of the effort to develop sustainability and climate resilience.  This balance is specifically identified in EO 14072 as follows:

“Section 1. Policy. Strengthening America’s forests, which are home to cherished expanses of mature and old-growth forests on Federal lands, is critical to the health, prosperity, and resilience of our communities….We go to these special places to hike, camp, hunt, fish, and engage in recreation that revitalizes our souls and connects us to history and nature. Many local economies thrive because of these outdoor and forest management activities, including in the sustainable forest product sector.”[1]

EO 14072 specifically addresses recreational issues and opportunities as a factor to be addressed in the planning process as follows:

“Sec. 2. Restoring and Conserving the Nation’s Forests, Including Mature and Old-Growth Forests. My Administration will manage forests on Federal lands, which include many mature and old-growth forests, to promote their continued health and resilience; retain and enhance carbon storage; conserve biodiversity; mitigate the risk of wildfires; enhance climate resilience; enable subsistence and cultural uses; provide outdoor recreational opportunities; and promote sustainable local economic development….”[2]

EO 14072 continues to recognize the need to protect recreational access and related economic benefits as follows:

“(d) The Secretaries, in coordination with the heads of other agencies as appropriate, shall within 1 year of the date of this order: (iii) develop, in coordination with the Secretary of Commerce, with State, local, Tribal, and territorial governments, and with the private sector, nonprofit organizations, labor unions, and the scientific community, recommendations for community-led local and regional economic development opportunities to create and sustain jobs in the sustainable forest product sector, including innovative materials, and in outdoor recreation, while supporting healthy, sustainably managed forests in timber communities.”[3]

Again, the Organizations believe it is important to recognize the wide scope of EO 14072 in the Proposal as this will allow the public to fully and completely understand the range of alternatives that are provided in the subsequent NEPA analysis being created. The Organizations also vigorously assert that the entirety of both EO reflect multiple uses on the land scape as required under various land management statutes. These factors also align with the desired information we are requesting in the EIS and also with the desired flexibility in management we are asking for in the Proposal. Again, we believe it would be entirely appropriate to celebrate a win on this issue and move on to other management issues.

2(b) Existing levels of protection for old growth and mature trees must be addressed in the Proposal.

The Organizations must question the foundational assumption that there is a need for additional protections of old growth timber as existing levels of protections far exceed the clearly identified percentages for protections of resources in other Executive Orders. While this goal is never specifically addressed in the Proposal, the theory appears to be woven throughout the Proposal. When the April 2023 USFS Old Growth inventory clearly identifies there are huge portions of old growth and mature timber that are protected already. These total amounts of acreages reflected in table 1[4] of the April 2023 Old Growth Inventory are summarized as follows:

The Organizations were immediately struck by how effective the current agencies efforts and existing Congressional designations have been in protecting old growth and mature timber.  It has become all too common that success of existing management is not recognized before the decision is made that more protections are necessary. This is deeply disappointing to the motorized community as we have partnered with land managers for more than 50 years to achieve these goals.  We believe this success must be clearly and directly recognized in the planning process and has not been.  This must be corrected as managers and partners really need a success to celebrate as this would be a significant step in resolving the divisive nature of land management discussions currently.

The Organizations also believe it is important to note the immense scale of this victory and the most protected classes of old growth have been protected at levels more than 50% above the goals set by the administration for resource protection. The Organizations EO 14008 clearly identifies that 30% is the threshold for protection of resources that the administration is striving to achieve. We must ask why any increase would be thought necessary as 49% of old growth timber is already protected and 35% of mature timber is already protected. This is a huge win that should be the basis of multiple press conferences and a media blitz.  Candidly with the division that has become so commonplace in the country having a win that we can celebrate could be hugely valuable. This goal has not been achieved with creative accounting or aggressive rounding of figures but rather by large margins and this cannot be overlooked. While the goals for protection of old growth timber have already been achieved, many of the goals and objectives for other issues have not been achieved and this cannot be overlooked.

2(c) EO 14008 specifically requires an expansion of recreational opportunities issued by President Biden should continue to be accurately addressed in the Proposal.

Numerous actions over the last decade by Congress and the Executive Branch have been directly targeting landscape level planning requirements and improving multiple use benefits from public lands.  While the Proposal does balance and reflect these efforts accurately, we would ask that these reasonably clear goals and objectives be addressed in any analysis for the Proposal to ensure that resources are leveraged fully now and into the future.  We are very concerned that if these goals are not accurately and meaningfully addressed in the process, unintended impacts would result from the artificial urgency to act that seems to have become some commonplace in any discussion.

The recent issuance of Executive Order # 14008 by President Biden on January 27, 2021 would be an example of a decision that must be accurately summarized and applied in the Proposal. Not only does EO 14008 provide the 30% protection threshold, it requires many other objectives that have not been achieved.   EO 14008 specifically requires the following:

“Executive Order 14008: Tackling the Climate Crisis at Home and Abroad calls for quick action to build resilience against the impacts of climate change, bolster adaptation, and increase resilience across all operations, programs, assets, and mission responsibilities with a focus on the most pressing climate vulnerabilities. Section 211 of Executive Order 14008, calls on Federal agencies to develop a Climate Action Plan.”[5]

EO 14008 specifically addresses the requirement of expanding recreational access and economic benefits three different times, giving this requirement a prominent position in the EO. §214 of EO 14008 clearly mandates improved recreational access to public lands through management as follows:

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

The clear and concise mandate of the EO to improve recreational access to public lands is again repeated in §215 of the EO 14008 as follows:

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

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

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

The Organizations are aware the 30 by 30 concept and climate plans that are memorialized in EO 14008. While the EO does not define what “protected” means, we  submit that Congressionally designated Wilderness monuments and  roadless areas satisfy this requirement. The EO also provided clear and extensive guidance on other values to be balanced with.  The fact that large tracts of USFS land are Congressionally designated or managed pursuant to Executive Order or managed under various USFS Roadless Area designations far exceeds any goals for EO 14008.

The Organizations are supportive of the balanced nature of these EO and the importance of protecting and expanding recreational access that is required in these Executive Orders. The Organizations would be concerned that any major change in direction for the Proposal would disrupt the balance that is provided currently. Effective engagement with partners will continue to carry the balance of these EO and the Proposal more generally into on the ground implementation, and this goal must be a priority moving into implementation.   The balance in these Executive Orders must be reflected in the Proposal that is provided to manage old growth timber.  This balance is a critical component of successfully implementing both the old growth timber effort but also balancing multiple uses.  This cannot be overlooked.

2(d) Secretarial Order 1077-044 also reflects a balance of climate concerns and recreational access and economic benefits from recreation to communities.

The Organizations would also identify that the balancing of multiple uses, more particularly the value of recreational access and its economic benefits, are also recognized in the Secretarial Order 1077-044 issued by Secretary of Agriculture Thomas Vilsack on June 23, 2022. This Secretarial Order recognizes the need to balance and improve recreational access as follows:

“(6) Outdoor Access and Recreation.
Develop recommendations for supporting climate-resilient community well-being, jobs and economic opportunity through equitable access to the outdoors and the outdoor recreation economy. Recommendations should reflect wildfire and climate-related risks to recreation infrastructure and assets and opportunities for integrating recreation outcomes into wildfire risk-reduction and restoration projects, where appropriate.”[6]

The Organizations are supportive of the balanced nature of this Secretarial Order and the importance of protecting and expanding recreational access that is required in this Secretarial Order. The Organizations would be concerned that any major change in direction for the Proposal would disrupt the balance that is provided currently. Effective engagement with partners will continue to carry the balance of this Secretarial Order and the Proposal more generally into on the ground implementation, and this goal must be a priority moving into implementation.

3(a) Recreational impacts will be significant if the Proposal is overly prescriptive as has already been proven on State owned lands.

The Organizations must express specific concerns about possible impacts of the desire to protect old growth timber and possible impacts on the ability of local land managers to address concerns and impacts to other uses on public lands.  The Organizations are aware that the cutting of trees on and around trails, roads, trailheads and other recreational infrastructure is a critical part of management necessary to provide a safe high quality recreational experience for all users, regardless of their chosen recreational pursuit.  The need for this type of management of multiple uses must be recognized and balanced in the Proposal. The Organizations would be vigorously opposed to any old growth management policy that required management efforts to be undertaken only after another inventory was added to the analysis process.  Resources are limited and must be used as effectively as possible.

The Organizations concerns on the need for a streamlined and efficient policy on this issue is also driven by the fact staffing is very short on USFS managed lands currently. While we are aware that the USFS is working diligently to hire staff, many of the newly hired staff in positions currently have minimal experience or background in their position.  This has proven to be a barrier to addressing a wide range of issues.

As a result,  we welcome the clarity in the definitions of old growth and density thresholds that are provided in the April 2023 release on old growth. We must also state our concern that many of the minimum tree diameters seem small even when measured at breast height and could easily encompass trees that are not old growth. We believe it is important to identify that our concerns on possible recreational impacts from overly strict or overly cautious management authority being provided for cutting of trees are not abstract or remote. This is a major concern as we have already encountered major challenges in maintenance of recreational trails and the need for minimum tree diameter in New York State on State owned lands.[7] A complete copy of the NYS Court of Appeals decision on this issue is also attached as Exhibit 1 to these comments.

While the situation addressed by the NY Court of Appeals was narrow in its interpretation and application, this situation represents a worst-case scenario for management of recreation in balance with protecting timber and other resources. The Organizations would submit that this situation can only be resolved and avoided in the future by placing tree diameters as wide as possible and developing a complete understanding of the effectiveness of current management simply to avoid the possibility of unintended consequences as the Proposal is rolled out. The immense scale of what is being proposed cannot be overlooked and overly cautious standards and requirements could have immense and immediate negative impacts to recreational access to millions of acres of public lands. As was noted by many of the communities adjacent to the trails that were lost as a result of the NYS Court of Appeals ruling, the economic impacts of this lost revenue to the communities were immense and could not be replaced.

3(b) We need more information to understand the relationship of tree diameter  to management  standards and how this will change over time.

The Organizations welcome the detail that was provided in the April 2023 initial planning document. It was helpful in our development of basic understanding of what was being proposed.  This analysis also created a significant number of questions around the relationship of variables in the analysis.  As we have previously noted, the minimum tree diameter for many trees seems small and we would support increasing these diameters in the alternatives.  This would allow the public to understand where truly large old growth trees are located.  Are they predominately in Wilderness or Roadless areas or outside these areas?

The Proposal does not provide any information regarding how changes in tree diameter would impact percentages of areas to be designated under various standards. This is an issue we would like to see addressed in the range of alternatives for the EIS.  Our question would generally be if the minimum diameter requirements went from 21 inches to 24 inches for older growth and a similar change was applied for mature how would this alter the percentages of area under each designation. This would be highly valuable information for us to develop understanding of how these designations would interact with other management standards and what these designations might look like in the future.

The Organizations would also ask that the EIS provide forecasts for how management standards might impact the progression of areas from younger to mature to old growth designations. Clearly a tree that is growing in a designated Wilderness area is the least apt to get cut and removed and this relationship will relate to almost every management standard.  Possibly applying something like a recreational opportunity spectrum type of analysis to this effort would be helpful in addressing this question and helping the public understand what is being proposed and how it could impact the forests moving forward. If there are management changes proposed, we would ask that the analysis include how these restrictions would impact existing management and how this would increase or decrease the percentages of trees in particular categories of age and management areas.

4. The Organizations support the use of a full EIS for this effort.

The Organizations are thrilled that the USFS has clearly stated that the subsequent planning efforts will be supported by a full EIS process. The Organizations believe it is important to recognize this step in the Proposal development as the Department of Interior has consistently sought to develop national rules and amendments with a NEPA analysis level of a categorical exclusion.  This is a decision we have been opposed to as it fails to meaningfully engage the public in both rulemaking and the NEPA process.

The Organizations also support a full EIS being developed for the Proposal simply due to the immense number of factors that could be involved in the analysis and the basic size of the analysis being undertaken.  Even small alterations in projections or characteristics being analyzed could have significant impacts on millions of acres of land. These impacts to other uses of public lands could have significant economic impacts to local communities and again this warrants meaningful analysis. This warrants meaningful review and public engagement.

The Organizations also support the development of a full EIS as this could be the first time that managers can develop an alternative a that reflects current management and  the preferred alternative for the analysis.  We are not aware of any major planning effort being able to make this claim.  While an EIS may be more costly and time consuming to develop, the issues it identifies and resolves early in the planning process are often immense and lead to a more effective implementation of the Proposal on the ground. This efficiency is important as we are aware resources for the agencies are limited and staff to develop and implement efforts such as this are more limited than ever before.  When there are inefficiencies in any process it draws resources away from other projects.

5 Conclusions.

Please accept this correspondence as  our cautious support for the proposed amendments to the 128 LRMP to address old growth forest conditions on both USFS and BLM lands.   Our caution is based on the limited scope of analysis provided in the Prospal regarding how multiple uses are addressed and protected in the Proposal and its implementation.

We must state our concerns regarding the fact that many of the tree diameters proposed to be the minimum for designation as old growth are small in size, even if they are measured at breast height.  The Organizations are aware that immense amounts of conflict has resulted from competing interests in timber and recreation as evidenced by the NYS litigation on tree diameter and its impact on the ability to maintain trails on NYS lands.   The Organizations vigorously assert the NYS experience must be used as a learning experience for the USFS effort and allow us to avoid the USFS effort to avoid these problems moving forward. The Organizations would also request more information in the EIS related to altered determinations on tree diameter and how this could relate to management designations and progression of forests through their anticipated lifespan

The Organizations and our partners remain committed to providing high quality and sustainable  recreational resources on federal public lands while protecting resources and would welcome discussions on how to further these goals and objectives with new tools and resources. If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com).

Respectfully Submitted,

Scott Jones, Esq.
Executive Director CSA
Authorized Representative COHVCO

Chad Hixon
Executive Director
Trail Preservation Alliance

Marcus Trusty
President
CORE

Sandra Mitchell
Executive Director, IRC
Authorized Representative, ISSA

Clif Koontz
Executive Director
Ride with Respect

Matthew Giltner
Executive Director
Nevada Offroad Association

Will Mook
Executive Director
AMPL

[1] See, EO 14072 at §1

[2] See, EO 14072 at §2.

[3] See, EO 14072 at §2(b)(1).

[4] Pg 6.

[5] See, Proposal at pg.  19587

[6] See, USDA Secretarial Order pg. 6.

[7] More information on this challenge is available here:  New York’s highest court rules against DEC tree cutting | News, Sports, Jobs – Adirondack Daily Enterprise.  A full copy of the NYS Court of Appeals decision is available here Protect the Adirondacks! Inc. v New York State Dept. of Envtl. Conservation (2021 NY Slip Op 02734) (nycourts.gov)

Public Comment Processing
Att: FWS-R6-ES-2023-2016
US Fish and Wildlife Service MS PRB/3W
5275 Leesburg Pike
Falls Church, VA 22041-3803

RE:  Proposed Wolverine Listing and Updated Assessment, Docket No. FWS–R6–ES–2023–0216

Dear Sirs:

Please accept this correspondence as the comments in vigorous opposition to the Proposed listing of the wolverine and updating of the species status assessment addendum(“The Proposal”) from the Organizations. Our opposition to the Proposal is not a position we take lightly or without thought as the motorized community has been supporting wolverine and related species research for several decades. Our support has included direct funding of research and donations of equipment for researchers. When those researchers have run into trouble in the backcountry while performing their research, we have been the members of the public that recovered broken equipment, stuck riders, and provided other indirect support for the researchers. This research partnership has spanned almost a decade with the hope of identifying the relationship between wolverine populations and recreation in all forms. Given the relationship  we have had with globally recognized leaders in research of wolverine challenges, we are intimately aware of the lack of relationship between wolverine populations at the landscape level and dispersed motorized recreation as this has been the basis of extensive candid discussions.

We are disappointed the Proposal twists what has historically been a good partnership working towards solutions for the species and several other species into an overly political and highly charged discussion again.  Rather than recognizing the decades of research that has failed to establish a relationship between wolverine populations and dispersed recreation , the Proposal simply asserts that research has never been undertaken. This position could not be further from the truth but rather directly evidences one of the most glaring failures of the Proposal.  Inconclusive research is simply not the basis for listing but is rather an indication that the relationship being researched does not exist.  In direct contrast to the efforts, we have undertaken to support research, where we have worked hard with researchers to clearly identify challenges or conclusions to benefit the species. The Proposal often entirely misquotes conclusions of works, ignores other research entirely, applies legal standards in a completely inconsistent manner to create what can only be summarized as a worst-case scenario for the wolverine in order to support a possible listing.  This is frustrating and disappointing to us as we have decades of effort supporting high quality research to try and resolve these questions and results in a listing decision that is largely indefensible on the merits.

Our opposition to the Proposal is based on both the poor level of analysis provided on the wolverine as this will not benefit the wolverine.  Our opposition is also based on the horrible precedent that it is setting as an ESA listing should not be based on an inability to establish a relationship after years of research.  ESA listings must identify actual significant threats to the species and address those challenges. Arbitrarily elevating political concerns outside the species will never protect the species  or remove it from listing.  A listing decision must be based on best available science and not the arbitrary creation of a fact pattern that is now being made to support previously made decisions.  We are concerned that the result of this effort will be an immense amount of conflict in any planning effort that will generate no benefit for the species.

While we are opposed to the listing based on the lack of credible science, the decision not to designate critical habitat is supported as there is no change in population trends and many researchers have determined that populations are increasing.  Until arguably accurate population counts can be created, and far more accurate information can be identified regarding the life cycles of the species, there is no reason to designate critical habitat.

Who we are.

Prior to addressing the specific concerns, the Organizations have regarding 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 250,000 registered OHV users in Colorado seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is a largely volunteer organization whose intention is to be a viable partner, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding.  The TPA acts as an advocate of the sport and takes the necessary action to ensure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite the more than 30,000 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 an entirely volunteer nonprofit motorized action group out of Buena Vista Colorado.  Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. The Idaho State Snowmobiling Association (“ISSA”) is an organization dedicated to preserving, protecting, and promoting snowmobiling in the great state of Idaho. Our members may come from every corner of the state, but they all share one thing in common: their love for snowmobiling. Our mission is to keep trails open for all users to enjoy.  For purposes of these comments, TPA, CSA, CORE, IRC, ISSA and COHVCO will be referred to as “the Organizations.”

2(a). Wolverine research and its support by the motorized community.

The motorized recreational community across the country has been actively supporting wolverine and lynx research for more than a decade to address the lack of data on wolverine and lynx response to all forms of recreational activity. This concern was identified more than a decade ago. These efforts have included efforts by globally recognized species experts such as Jeff Copeland, Bob Inman and John Squires. Our efforts have also included years of involvement in Colorado’s lynx blueprint effort and wolverine reintroduction discussions.  These meetings partially  drove our increased involvement with the wolverine research and addressed many issues that are simply dismissed in this Proposal, such as the ability of avalanche mitigation work to impact denning wolverines, who frequently den in avalanche chutes. These possible incidental take issues  were of significant concern for DOT and ski areas that performed significant avalanche mitigation but was not a concern for dispersed recreation as we did not do this work.  Rather than addressing this issue, developed ski areas are simply excluded as possible impacts and avalanche mitigation efforts are never mentioned. As parts of this effort, we have been able to identify management standards to protect individual denning wolverines from all recreational risks with implementation of standards such as  temporary closures around confirmed denning sites for all recreation activity.

The wide-ranging support of the motorized community for these efforts have been specifically recognized.  The Idaho State Snowmobile Association was a recognized partner on years of research on the relationship between recreation and wolverine populations as follows:

“We are grateful to our multiple partners and collaborators who have assisted the project in numerous ways. Funding and equipment for the project has been contributed by the US Forest Service, Southwest Idaho Resource Advisory Committee, Southeast Idaho Resource Advisory Committee, Round River Conservation Studies, U.S. Fish and Wildlife Service, Idaho Department of Fish and Game, Idaho State Snowmobile Association, The Wolverine Foundation, Sawtooth Society, Central Idaho Recreation Coalition, Brundage Mountain Resort and the Nez Perce Tribe.”[1]

The motorized community has also been very involved in supporting cutting edge research that provided real time feedback on the response of species to all forms of recreation outside the work of the wolverine foundation. Our efforts have supported ground breaking research in Colorado, which was again recognized as follows:

“We thank W. George for valuable assistance with preliminary data analysis, the many field technicians that distributed GPS units to recreationists, the participants who volunteered to carry the GPS units, the outfitters and guides who agreed to carry them, and the local FS offices for providing logistical support and information about the area.”

This research yielded immediately identifiable data that could be broken down by user type and lynx location as exemplified by the following charts:[2]

Fig. 2. Examples of recreation tracks recorded with GPS units during the study in western Colorado, 2010e2013. Panel A) snowmobile tracks primarily on trails in the Vail study area, B) hybrid skiing in the Vail study area; thick lines near the bottom of the picture show snowmobile travel, while thinner dispersed lines further back show skiing, C) backcountry ski recreation in the San Juans study area, and D) a combination of all three recreation types at the Vail study area, showing areas of overlap as well areas used primarily by one recreation type. Image credit: Google, DigitalGlobe.”

It is deeply troubling that the Proposal fails to even discuss the inherent conflict in this research being available as use of this model of research was specifically requested by Barrueto.   This model of research not applied by Barrueto but he was seeking to perform this research in the future. We have participated in this effort and can state with certainty it is not expensive or difficult to perform currently.   With the listing of the species, collaborative efforts on research like this will simply cease to exist. This impact should not be overlooked and has also been the basic of extensive scholarly discussion.[3]

The involvement and support of the motorized community in supporting this research forces us to ask many basic questions unrelated to recreation and much more closely related to the basic process on how the Service can drive and support the development of research processes like these. These processes are critical to the implementation of management that actually benefits the species. One step the Service can do in supporting research such as this is to lower the reliance on less developed and accurate methodology for the listing of species rather than making failed foundational efforts such as this a cornerstone of listing decision. This basic step to improve underlying processes has failed to be taken in the Proposal, as rather than addressing this groundbreaking new work and facilitating its expanded usage,  the Proposal continues to be based on largely anecdotal evidence that is then supplemented with layers of supposition and conjecture. While the failure of some researchers to apply best available scientific methods is concerning, the adoption of such flawed research methodology by the agency as the sole basis for species listing is astonishing.

The systemic failures of the basic scientific, rulemaking and listing process has resulted in decisions that are highly predecisional and arbitrary in nature. The Proposed listing provides for impacts far wider ranging than merely using reasonably research methodology.  The listing seeks to create the ability to unilaterally interpret research data and unilaterally and allow the Service  reach conclusions of their own without regard to the conclusions of the researchers.  This is hugely problematic as this will alter the flow of research and data and silence research that could conflict with a future listing. This type of data on issues is critically important as any researcher that may contradict a conclusion must provide peer reviewed and published data to support their decision as to why a factor is or is not a priority for management.  If the Service can subsequently revise data and conclusions of researchers to support a predecisional listing decision, the value of the scientific process is entirely lost.  This is far more of a concern than the listing of any species could ever be as the only way to protect a species is to truly identify threats to the species without political pressure so they can be addressed.

The conflicts that have resulted from the cavalier nature of the update of the listing decision is also reflected in the completely inaccurate summary of the current efforts for a species reintroduction in Colorado.  Another concerning failure of the Proposal, astonishingly inaccurate summary of current Colorado status of species, which the Proposal summarizes as follows:

“Colorado Parks and Wildlife had previously considered reintroducing wolverines to Colorado as a nonessential experimental population to further their conservation (see 78 FR 7890; February 4, 2013). However, that proposal was withdrawn in 2014, when we withdrew our proposed listing rule (see 79 FR 47522; August 13, 2014). There is currently no formal proposal to reintroduce wolverines to Colorado.”[4]

The complete conflict of this position with even the CPW website on the wolverine is immediate as the CPW website on the wolverine provides the following summary:

“Wolverines have been extirpated from Colorado, but Colorado Parks & Wildlife is in discussions with partners and stakeholders about the potential to restore this species to Colorado’s High Country.”[5]

Even basic research into this situation would have resulted in awareness that on every CPW Parks and Wildlife Commission meeting to occur over the last year a wolverine reintroduction update has been provided to the public. Colorado Legislature is also developing legislation to allow the reintroductions of wolverines to occur in the State as well.[6]  With failures of basic information such as this, the Organizations must oppose the listing and update as foundational information  on the Proposal simply has not provided or has not been obtained.

2(b) The Colorado situation evidences why scientific process matters as actions that may warrant incidental take authorization from the Service are simply not mentioned in the listing.

As noted the motorized community has been involved with wolverine discussions for more than a decade, we are aware of significant issues that may warrant an incidental take authorization from the Service for operations.  Many of these incidental take issues simply are not mentioned despite the critical public safety efforts that could be stopped without an incidental take authorization. Avalanche mitigation efforts are commonly performed by State Departments of Transportation for public safety and performed by ski areas for the safety of those users. Avalanche mitigation efforts were a primary concern for possible wolverine impacts as female wolverine are most vulnerable to this type of action as they tend to den in avalanche chutes due to the deeper and more persistent snow.  This results in female wolverine mortality being disproportionally impacted by avalanche mitigation efforts. We have attached  selected documents from the Colorado stakeholder meetings on the wolverine in 2011 addressing these concerns and how an incidental take permit could address these issues.  These are serious concerns for our members and should be addressed in the listing. Avalanche mitigation efforts with transportation infrastructure simply are not mentioned at all and ski areas are simply summarily dismissed as a possible threat.

Again, the Organizations must question how issues such as the need to issue incidental take authorizations for avalanche mitigation efforts directly killing denning wolverines was not recognized as an immediate problem.  It was one of the first things that came up in the Colorado effort and we are not aware of why an incidental take would not be authorized in this situation. While these are efforts that are generally not performed by the snowmobile community, these efforts provide significant value to our membership and warrant protection.

2(c)  Carcass management has been hugely effective in protecting all species but is not mentioned in the listing as a noncontroversial tool to protect wolverines.

As noted previously the Organizations were active participants in the 2011 Colorado effort to reintroduce wolverines. Several of these meetings addressed successful efforts undertaken by CDOT in protecting wildlife, such as wildlife overpasses, fencing and active carrion management plans by CDOT. Many of these tools benefitted multiple species at significant levels. CDOT efforts with wildlife overpasses have been hugely successful in protecting deer, elk, lions and every other species that must cross an interstate.[7]  Clearly these are tools that would protect a species like wolverine, and if we assume these population estimates that are in the listing.  For the sake of discussion if these estimates are accurate  wouldn’t these be primary tools to protect wolverines from direct mortality as even the loss of one animal could result in a significant percentage decline in the population. Instead of focusing on tools like this the listing continues to focus on anecdotal concerns supplemented with layers of theory and supposition that may never result in any benefit. This is a concern and causes us to think the Proposal is politically driven rather than seeking to protect the species.

While we are aware that building overpasses and miles of fencing is expensive, CDOT also shared their high levels of success in protecting predators, like lynx, fox, and lions by simply removing carrion from roadkill in a more timely manner. CDOT managers  found that the removal of these carcasses removed the desire for predators to investigate these as possible food sources along interstates. Their research found that species like lynx and lion moved through the areas surrounding the interstate much more quickly and as a result were far less apt to be struck by a motor vehicle. These preliminary conclusions provided by CDOT were recently confirmed by researchers who found wolverine, lynx and other omnivores spend significant time at carrion sites. [8] This research indicated this behavior may create a host of new management issues and challenges, only confirming the preliminary data from CDOT almost a decade ago.  Given that wolverine are well known feeders on carrion, wouldn’t a step like addressing roadside carrion in wolverine habitat be effective for protecting the species and highly efficient in achieving these goals? Again,  this is simply not discussed despite recent research indication wolverine behavior is heavily influenced by the presence of carrion.

2(d) Ski area management was historically a primary topic of management concern and was simply removed from Proposal.

The Proposal fails to provide any basis for the altered management of wolverine in relation to ski areas operations. The treatment of developed ski areas in the Proposal stands in stark contrast to the position of the Service clearly expressed in the Colorado stakeholder efforts in 2010 & 2011. These professionally facilitated meetings spanned more than a year and were consistently attended by 30 plus people.[9] As noted previously the snowmobile community was heavily involved in Colorado based wolverine workshops where possible impacts of human activity on wolverine populations looked VERY different from the Proposal.  As discussed in more detail in the attachments, ski area operations were a major concern for the ski area operators, the Service and CPW. As a result of this ambiguity, we spent extensive time exploring incidental take authorizations and other tools to provide clarity for ski areas in this process.  While the Proposal asserts to be applying new research, we must ask what new research was published to support removal of all ski area operations as a threat or possible need for an incidental take authorization?  This process would be highly valuable to our interests as it is clearly highly effective in removing functionally similar activities as possible threats to the wolverine.  We would like to apply this model of research immediately.

We must ask what is the basis for this change, the extensive discussions that occurred after these wolverine workshop meetings which only compounds this question as ski area operations are a priority concern in every USFWS analysis document prior to the Proposal. The concern for possible impacts from developed ski areas was summarized in the 2013 listing as follows:

“Preliminary results from an ongoing study on the potential impacts of winter recreation on wolverines in central Idaho indicate that wolverines are present and reproducing in this area in spite of heavy recreational use, including a developed ski area, dispersed winter and summer  recreation, and dispersed snowmobile use (Heinemeyer et al. 2012, entire).”[10]

The  2018 Science update on the wolverine was FAR less than compelling basis to determine there was no relationship between ski areas and wolverine in its summary of the analysis of ski areas which  provides as follows:

“They also reported that wolverines responded negatively to increasing intensity of winter recreation, with off-road and dispersed recreation having a greater effect than recreation that was concentrated on access routes (Heinemeyer et al. 2017, p. 34). In addition, wolverine avoidance of roads and groomed areas used by winter recreationists was less than estimated for dispersed recreation, suggesting that wolverines may be less sensitive to predictable winter recreation use patterns (Heinemeyer et al. 2017, p. 40).”[11]

The 2018 Survey for the wolverine also clearly stated that all recreational activity maybe a concern as follows:

“However, this research also found that wolverines maintained their home ranges within areas with relatively high winter recreation activity over several years of monitoring, including some areas found to contain the highest recreational activities (Heinemeyer 2016, pers. comm.). The study has not been able to determine whether these resident wolverines are reproductively successful due to the limited monitoring information available for reproductive females (Heinemeyer 2016, pers. comm.).”[12]

The comical amount of ambiguity in this position on winter recreation is immediate as we are aware of numerous heavily used winter recreation areas existing within wolverine habitat. We are also aware of numerous snowmobile recreation areas that have visitation levels that exceed adjacent ski area levels of visitation.  We are unable to even theorize what “relatively high winter recreation activity” even means as a standard, making any discussion of levels of usage between these two issues impossible. The Organizations are also aware that some back country opportunities on ski areas include much lower intensity opportunities such as cat skiing, hybrid skiing and human powered opportunities. These opportunities are provided at low levels of intensity of usage.  This is another indication that information is not accurately conveyed in the Proposal and the limited information that is applied is simply arbitrary.

The arbitrary nature and failed decision making of the Proposal is exhibited by the 180 degree change in the basic level of concern around the management and operations of ski areas and possible impacts of ski area operations on wolverine.  The Proposal summarizes the change in analysis for ski areas as follows:

“The analysis includes various studies concerning the effects of backcountry recreation on wolverine habitat. These studies looked at various types of backcountry recreation including skiing, snowboarding, snowshoeing, and snowmobile use. The studies found that wolverines avoided high quality habitats within their home range where these activities were occurring. The service is not concerned about the effects of winter recreation in established and developed areas such as ski resorts at this time”[13]

The Organizations would be remiss if it was not raised how any research was applied and related to how decisions were made in the Proposal appears less than accurate.   The inference from this position is developed ski areas have MORE impact than a groomed route by itself. This creates a significant problem for the current Proposal, as it arbitrarily removes ski areas from further management while the lesser threat of dispersed recreation is elevated for management despite the large overlap in terms of the two activities on the ground.  There are simply no discussions provided, or research cited, to address this change in management position on ski areas from the 2018 Science update

3a(1) Have the Terms of the Court decision driving this entire process been complied with?

As we have  in these comments, the Proposal suffers from several basic foundational problems as it fails to accurately reflect clearly stated research conclusions and overlooks many other documents entirely. The poorly documented change in positions on so many foundational issues with the listing forces questions such as “Has the settlement been complied with?” The Court  Decision driving this entire process clearly states the documentation standards for the future listing efforts as follows:

“The Service must rationally explain why the uncertainty regarding [a particular issue] counsels in favor of [one conclusion] rather than the opposite conclusion.”[14]

The Organizations must ask this question before even addressing more generally applicable standards.  The settlement clearly sets a high standard for compliance with its decision. It is unclear if this standard has been complied with. It is our position the listing proposal has failed to comply with this standard.

3(a)(2)  The Proposal ignores conclusions of researchers and simply reinterprets data to  create a fictional theory to support the listing of the wolverine and predecisional management restrictions.

Two of the foundational objections from the Organizations regarding the Proposal are: 1. The relationship between wolverine populations and recreation had not been researched previously; and 2. The assertion that the relationship of recreational activity and wolverine populations has changed based on new research. Wolverine research is an issue the motorized community is intimately familiar with as we have partnered for almost a decade in research efforts on the species and possible negative responses of wolverine to human behavior.

It has been our position that the wolverine population is not impacted by human activity simply based on common knowledge, which we also knew was insufficient to support any decision making for a proposed listing.  As a result, the inability of researchers to establish a relationship comes as no surprise. We simply never expected to find one.  What is surprising the fact that recognized leaders in wolverine research have now concluded more vigorously and completely than ever before that the relationship does not exist and that statement is simply never mentioned in the Proposal.  Even if research indicated there was a risk from human activity to the wolverine, this impact could be reduced to nonexistent levels with temporary seasonal closures around confirmed denning sites while they are in use.   This situation should not be surprise as our community has effectively resolved problems for decades and the only way we can actually resolve the wolverine listing issue is by establishing an accurate count of wolverines and understanding what issues are impacting the species, is any and what issues are not impacting the species. The Proposal entirely fails to do this basic work.

Our partnerships have resulted in huge amounts of new ground breaking research on species of all types and we remain proud of these efforts as they have benefitted the species and recreational users of all types.  Our position on the wolverine historically is founded upon the open and free exchange of information, high quality research  and the ability to discuss concerns, data and theories in terms of scales of threats and how they can be resolved if these relationships are significant. The Organizations are highly frustrated that the Proposal systemically takes peer review published research out of context to support a predetermined conclusion other than those clearly identified by the researchers in the publication.  The Proposal simply ignores the conclusions of the researchers work it is asserting to rely on or simply provides an entirely inaccurate summary of the issue to support a conclusion that directly contradicts the conclusions of the researchers. This is entirely a violation of basic scientific processes and abuses the wild discretion the service has in addressing threats to any species and entirely outside legal requirement of listing being based on best available science. This failure is deeply troubling and regardless of the conclusion would be opposed by our Organizations.

The failure of the Proposal  to even accurately address the conclusions of researchers  starts with research that the Proposal uses a foundation for a lot of the analysis provided. The Proposal provides the following summary of researcher’s conclusions on the relationship between recreation and human activity as follows:

“A large multi-State analysis of winter recreation impacts in the Northern Rocky Mountains was published in 2019, indicating greater concern for impacts to wolverines than we found in 2018 and showing a negative functional response to the level of recreation exposure within their home ranges (Heinemeyer et al. 2019a, pp. 13–14, 17–18).”[15]

The Proposal refers to this research as the 2019a Heinemeyer research and the conflict between this summary and the conclusions of the research are immediate and unresolvable.  The 2019a  Heinemeyer publication actually specifically provides highly important context and scale to their entire analysis around human activity.  The 2019a Heinemeyer research states the context for their discussions  as follows:

“The importance of dispersed motorized recreation to male wolverine resource selection ranked 10 out of 13, while avoidance of dispersed non-motorized recreation was similar to females at a rank of 6. Avoidance of linear recreation by male wolverines was marginally insignificant (P = 0.056) and of lowest  importance (Table 4).[16]”

The Listing Proposal cites to the Heinemeyer 2019a study 15 separate times.  The Science update cites to Heinemeyer 2019a an additional 15 times.  Given this work is cited 30 times across the consolidated documents provided by the Service, this clearly identifies the significant weight of work  the Service has placed on this work to the listing.  This would lead to the conclusion the listing has reasonably accurately reflected this research in their documents.  That assumption would be entirely incorrect.

The Organizations are unable to distinguish how the conclusions of this work  could be aligned in any other manner than supporting the conclusions of the 2018 SSA about the minimal concern for general human activity and wolverine populations. Dispersed motorized recreation ranking 10^th out of a possible 13 threats to the species overall is  clearly not greater concern in the 2019a research when compared to the 2018 SSA.  Any assertion of greater concern is further undermined as human activity for male wolverines was the lowest factor analyzed.  Rather than being greater concern this is clearly supporting the identification of recreation and human activity as a low priority threat as stated in the 2018 SSA. Clearly this research is insufficient to support any assertion that the only response from wolverines regarding motorized recreation is a management concern as females showed more response to nonmotorized recreation in comparison to motorized recreation. This is certainly not sufficient research to support any management decisions or elevation of threats from recreation to the wolverine as the Service moving a 10^th place finisher to 1^st place is an astonishing feat even today.

Understanding the context for the discussion in the Heinemeyer 2019a research creates significant problems for the assertion of greater concern expressed in the Proposal when it is accurately summarized.  These types of conflicts only explode when the full scope of subsequent research is actually addressed.  Heinemeyer 2019a  is also not the largest group of researchers to be unable to find a significant relationship between human activity and wolverine populations after years of work.  In 2020 a coalition of 17 global leaders in wolverine research, representing every state in the lower 48 that have wolverine populations,  specifically  concluded that they were unable to establish any relationship between all human activity and wolverine populations.  This conclusion was specifically outline as follows:

“We found no association with vegetative productivity, human disturbance, and habitat patch size. Our sampling design may have limited our ability to detect those effects because the sampling frame was based of models of predicted wolverine habitat. The models placed the sampling frame in areas with higher elevations, less human disturbance, and more forest than the 4 states surveyed contain in general. The restricted range of covariate values observed may have had more influence on the lack of importance than any other reason. In addition, the scale of the sampling cell, 15 km × 15 km, also averages over a large area of variable conditions; therefore, single values of co variates at that scale may show dampened relationships as compared to e-scale resource selection.”[17]

This research is not even mentioned in the Proposal, which is astonishing as the Proposal cites to other works by Lukacs addressing climate change and water resources.  A complete copy of this article is attached to these comments as Exhibit 5. The direct and unresolvable conflict between the Proposal’s assertion that greater concern has been shown in subsequent research for human activity impacts on wolverine simply cannot be aligned with this work.  The total inability to align this work with the Proposal conclusions and its complete omission from the document cannot be overlooked.

The Proposal systemic failure to address research accurately on recreation is again exhibited in the Proposal summary of the work by Mack and Hagan, which appears to be supplementing the work around the  modeling of wolverine habitat  published by Lukacs during the same time frame. The Proposal summarizes the Mack and Hagan work as follows:

“Additionally, new research found an incremental loss of wolverines in portions of central Idaho where winter recreation impacts are increasing (Mack and Hagan 2022, p. 13).”[18]

The immediate failure of the Proposal to support this position with best available science is evidenced by the fact the only citation to a work of Hagan is completely inaccurate in the supporting documentation.  The only authority reference to a work of Hagan in the Proposal  provides this as follows:

“Lyon, L.J., E.S. Telfer, and D.S. Schreiner. 2000. Direct effects of fire and animal responses. Pp. 17–24 (Chapter 3) in Wildland fire in ecosystems: effects of fire on fauna [J.K. Smith (ed.)]. General Technical Report RMRS-GTR-42-Volume 1. U.S. Department of Agriculture, Forest Service, Rocky Mountain Research Station; Ogden, Utah. 83 pp. Mack and Hagan 2022”

The Proposal failure on this summary is immediately evidenced by the fact the cited work never addresses wolverines or recreation but addresses wildfire impacts on species in a chapter addressing fire and fauna.  Candidly this relationship is so completely inaccurately summarized as to state recreation is not even mentioned in this chapter of the general technical report from 2000.  This is a concern.

The Proposals failure is immense and unresolvable on these works as Hagan and Mack have performed wolverine research, which are a series of annual reports from Idaho Fish and Game that continued research of wolverine populations spanning more than a decade historically. We are aware of this relationship as we helped fund the previous research lead by Heinemeyer. These annual reports do not draw conclusions but rather provide raw data on individual wolverine that had been previously tracked after the conclusion of the other larger efforts.  These publications of Hagan and Mack are clearly labeled  as preliminary finding by Idaho Fish and Game as follows:

“Findings in this report are preliminary in nature and not for publication without permission of the Director of the Idaho Department of Fish and Game.”[19]

The immediate conflict of making listing decisions based on a publication that is clearly identified as “preliminary in nature” cannot be overlooked. Again, this is not greater concern.  It is deeply troubling that the conclusions of this research are again inaccurately summarized in the Proposal as the population trends are noted as actually improving in the exceptionally small study area as follows:

“We detected 40% fewer individual wolverines with cameras in 2021 than the peak of 11 wolverines live-trapped and monitored during 2011. However, the number of individual wolverines detected with cameras in 2021 (6–7) was slightly higher than the winter recreation project’s last 2 years (5 individuals).”[20]

If we assume for the sake of argument that the Service properly used results clearly identified  as preliminary for the basis for a listing, again the preliminary results are not even accurately summarized. The conclusions that the wolverine population has been recovering over the last two years entirely within the distinct population segment identified by the Service is never mentioned in the listing.  Rather the Service chooses to inaccurately summarize the work to support problematic research obtained outside the DPS. This is an immense problem for the listing as it may not manipulate their decisions by unreasonably relying on certain sources to the exclusion of others and is disregarding scientifically superior evidence and sources.

The manipulation of research is concerning when viewed  in isolation but this is compounded as scientifically superior works from the same researcher in the same time frame on the wolverine are entirely disregarded. Again, the Proposal has failed on this type of issue as Diane Evans Mack specifically published her conclusions with 16 other leaders on wolverine issues that they were unable to identify any relationship between human activity and wolverines populations based on this work and numerous other works.  This publication is attached as the work of Lukacs et al that is attached to these comments as an exhibit.  Again, this is a failure of the most basic processes associated with the scientific process or requirements to plan based on best available science.

The Organizations are aware that these preliminary reports provide no specific reason for the possible decline in populations and recovery in the analysis area.  While no theory is provided for location fluctuations in this specific population, the landscape level  conclusions of this work addressing research in all areas researched are specifically addressed as follows:

“In summary, we did not confirm with cameras the number of individual wolverines we expected on the PNF portion of our study area. During 2011, the peak year of the winter recreation study, 9 of the 11 wolverines captured were on the PNF. In 2014, 5 wolverines were captured there. In 2021, across the same locations, we could confirm only 4 animals. We did not confirm a male in the territory encompassing Hard Creek, Granite Creek, and Fisher Creek Saddle. We also didn’t confirm a female on the east side of Warren Wagon Road in the Lick Creek or Pearl Creek drainages, where, in 2011, 3 females were live-trapped. We did confirm 1 male in the Lick Creek corridor, although in 2011 there were 2 resident males there. Our results seem to corroborate what Heinemeyer and Squires (2014) described as significant turnover, with known territories potentially vacant. In contrast, wolverine activity on the BNF portion of our study area appeared stable. As occurred during the winter recreation study, we confirmed 2 individuals at Warm Lake Summit, with possibly a third. The Gold Fork camera added an individual wolverine outside of the scope of the winter recreation study.”[21]

Even without the published peer reviewed conclusions of this research published by Lukacs, the immediate conflict between the Proposal conclusion that human development is a threat could not be aligned with the specific reasoning and detailed analysis of this research.  This conflict of conclusions only expands as the Lukacs/Mack conclusions are based on almost a decade of data, that the population of wolverine was stable and possibly expanding.  At no point does this research address levels of human development or support any assertion the population had fallen by 40% in that area. Rather the information provides a significantly different summary of the population trends and fluctuations.  It is the pinnacle of arbitrary decision making for the Service to cut and paste portions out of any work, reinterpret them into conclusions the researcher specifically disagrees with and then use this is as the basis for a decision.

Listings of species on the ESA and general land planning efforts must deal with some level of legal uncertainty almost all the time. Throughout the decades of effort on these issues, it has become clear that the inability to prove a theoretical relationship is not proof of the relationship but proof of the LACK of a relationship between two factors. Even outside land planning and species management, this has been a significant question society has struggled with the great philosopher Voltare stating this conflicted relationship as follows:

“The interest I have to believe a thing is no proof that such a thing exists.”

The conflict presented by  Voltare  is obviously  present in the  wolverine listing  certain interests have concluded recreation must be impacting the wolverine as this position cannot be disproven. Not only has this conflict plagued actual resolution of challenges to wolverines and many other species, this inaccurate relationship has led the Service to fail to satisfy their burden of proof in listing a species and taking management actions. The ESA specifically requires proof of a relationship for management,  which has driven the concept of best available science for research and the legal requirement that best available science  must be used for listing. The current Proposal reverses this burden and is now saying the scientific conflict and inability to establish a relationship between wolverine populations and recreation is the reason for the listing.  Now the burden is shifted to the motorized community to prove there is no relationship to avoid listing.

While the ESA does not provide a specific definition of best available science for the Service, the courts have been very active in resolving this standard. The US Supreme Court has provided the following definition of how best available science is to be applied in the management of public lands:

In so doing, the action agency must “use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). This empirical mandate ensures the law is not “implemented haphazardly, on the basis of speculation or surmise,” and thus “avoid[s] needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.” [22]

The Supreme Court interpretation of best available science is immensely problematic for the listing, given the failure of the Service to accurately summarize almost every work cited or consistently apply previous decisions. Subsequent to the Supreme Court decision,  Courts have provided significant additional guidance on the nature of best available science which they outline as follows:

• “The agencies may not manipulate their decisions by unreasonably relying on certain sources to the exclusion of others.
• The agencies may not disregard scientifically superior evidence.
• Relatively minor flaws in scientific data do not render that information unreliable.
• The agencies must use the best data available, not the best data possible.
• The agencies may not insist on conclusive data in order to make a decision.
• The agencies are not required to conduct independent research to improve the pool of available.
• The agencies thus must rely on even inconclusive or uncertain information if that is the best available at the time of the decision.
• The agencies must manage and consider the data in a transparent administrative process.”[23]

The immediate conflict between the analysis provided in the Proposal and every standard outlined by the Courts cannot be overlooked or overstated. Less than 6 months ago, the Courts again clearly stated worst case scenarios for a species are not the proper basis for decision making as follows:

“In this case, we decide whether, in a biological opinion, the Service must, or even may, when faced with  uncertainty, give the “benefit of the doubt” to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not. The ESA and the implementing regulations call for an empirical judgment about what is “likely.” The Service’s role as an expert is undermined, not furthered, when it distorts that scientific judgment by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.”[24]

It is disappointing to even have to make this assertion but the listing is clearly a worst-case scenario for the wolverine, that violates almost every criterion that Courts have developed to identify and apply best available science.  The foundational conflict between the conclusions that are asserted in the Proposal and the conclusions of globally recognized species managers research cannot be overstated.

3(a)(2)  Congressionally designated areas have significantly expanded since 2013 but this in not addressed in the Proposal.

Throughout the Proposal there is a theory that dispersed, and most particularly motorized recreation is a threat to the species.  The service recently has identified that 41% of Wolverine habitat is in designated Wilderness or subject to other prohibitions on motorized access, which is outlined as follows:

“For example, generally wolverines will benefit from wilderness area protections (calculated as 18 percent of the extent of wolverine occurrence and 41 percent of core wolverine habitats in the western United States (Service 2018, p.103));….. Several large National Parks contain core habitat for wolverines, including Yellowstone, Grand Teton, Glacier, North Cascades, and Mount Rainer National Parks. These areas are largely protected from development, although they may be impacted by winter recreation to varying degrees.”[25]

This situation immediately begs the question of how could there be a significant fluctuation in Wolverine populations with these levels of prohibitions already in place. The failures in analysis of the Proposal on the relationship of congressional protections and what is thought to be the primary threat to the species only compounds when Roadless Area designations are included in the calculations. Once the combined percentages of Roadless and Wilderness areas is addressed on   USFS lands, the areas prohibited or restricted approaches almost 60% of the USFS lands. This creates an immense factual problem for the Proposal.

The designation of Wilderness since 2013 provides significant conflicts with any assertion the Proposal is applying new research or has been accurately updated. Even a brief review of this issue would have identified that more than a million acres of Wilderness have been added to the National Wilderness system since 2013.  As an example of these designations would include:

1. The 113th Congress added five new areas and over 279,00 acres to the system in two enacted bills;
2. The 114^th Congress which designated three new wilderness areas in Idaho;[26]
3. The 116th Congress passed one law, designating a total of 1.3 million acres in four states; [27] and
4. Dingell Act designated more than 263,000 acres of wilderness in 2019. [28]

The Organizations are simply unable to identify any discussion of how much of these areas were in occupied or unoccupied habitat for the wolverine, or even that any of these designations occurred.  This is despite the repeated assertion that the Proposal has been updated to address changes since the 2013 Proposal. Clearly the expansion of existing protections on millions of acres of possible wolverine habitat should have been addressed as existing protections are a statutorily required analysis for any listing.   We simply are unable to envision any interpretation of an update that would not address these changes in existing protections for habitat as this is statutorily required under the ESA criteria. This greatly undermines both the assertions that the 2013 Proposal has been accurately updated and that the Proposal is legally sufficient to list the wolverine.

3(b) Peer review of listing raises many foundational questions from global leaders in wolverine research but none are addressed.

The Organizations would be remiss if the utterly terrible nature of the peer review of the Proposal was not addressed in our comments.  The Organizations are intimately familiar with several of the peer reviewers as we have worked on numerous projects that they are involved in leading or a researcher on.  Sometimes we have disagreed with these researchers on resolutions to concerns but after significant engagement with these reviewers, we have found them to be exceptionally well versed on wolverine and lynx management issues.

We have found high levels of alignment in the fact that each of us was working towards developing a robust sustainable population of the species.   This alignment of purpose is not found in the listing. The  situation is highly frustrating and highly insightful to the mentality of the listing as the peer review raises real questions about foundational positions that are being taken, but none are even addressed.  This makes us think the peer review was merely done to check a box and move on regardless of any input from the peer review.  This is highly frustrating and a violation of among other specific provisions of the ESA, more generalized data requirements such as the information and data quality act of 2001, which specifically provides as follows:

“SEC. 515. (a) IN GENERAL.—The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies  or ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act.”[29]

The USFWS guidance specifying the peer review process for their listing efforts identifies the issues and requirements as follows:

“The FWS definition of objectivity includes whether the disseminated information is presented accurately, clearly, and completely, and in an unbiased manner…. Transparency about research design and methods is pivotal to reproducibility. With regard to analytical results, we will generally require sufficient transparency about data and methods that a qualified member of the public could undertake an independent reanalysis. These transparency standards apply to our analysis of data from a single study as well as to analyses that combine information from multiple studies. However, the objectivity standard does not override other compelling interests such as privacy, trade secrets, intellectual property, and other confidentiality protections.”[30]

US Fish and Wildlife memo outlines the significant value in performing a peer review of research supporting a decision as follows:

“For instance, it might be possible to subject critical portions of the scientific materials to review, in advance of a decision. A major advantage of early review is the opportunity to take early corrective action. Most early drafts can be substantially improved through early informal reviews by internal or external experts. Improvements based on these early “friendly” reviews will lead to better products (e.g. study design, sampling method) and more useful comments during more formal peer reviews such as those mentioned above. Soliciting informal reviews by subject matter experts is a good idea (e.g., better products, broadening your scope of professional contacts) even if formal peer review is not applicable.”[31]

Clearly, the process outlined above is contingent upon some type of integration of this information into the final decision-making process. After reviewing the 9 pages of highly specific peer review of the draft Proposal and the final Proposal, we are unable to identify a single location where peer review was incorporated, despite these efforts being highly detailed and specific and generally scathing in nature. We will note several comments that are problematic to foundational positions taken in the listing starting with the assertion in comment #12 from Robert Inman that he is not aware of the most important paper in the listing foundation as follows:

“I had not seen the 2022 Barrueto paper before. This is a somewhat startling finding, a 40% decline in density over 10 years and in an area with significant protected (National Park) areas. The finding is stark enough to make me wonder if it passes the common‐sense test ‐ How can it be possible that a relatively protected population declined by that much, This is a stark enough decline that something new must have been going on in the area to cause it. What is new? Did trapping activity increase dramatically in the 10 year period? Unlikely that climate effects occurred.”[32]

This should have been a red flag for the Proposal as one of the global leaders in wolverine research was not aware of one of the publications that is foundational to the listing.  This makes us think that prior to the listing this work was not well received or groundbreaking new research.  The Organizations would ask the same questions on these provisions and we are unable to identify any revision of this provision to address what is a foundational concern in the listing. Robert Inman continues his peer review in comment # 23  as follows:

“Roads are at lower elevations and snow is greater at higher elevations. What if roads were the driver? If you take roads out, which the researchers did and the SSAA mentions, if you take roads out and then test for something inversely correlated with roads, what do you find ‐ that the thing that was inversely correlated is now “correlated”. Is that rigorous science?”[33]

Again, when a peer reviewer questions the rigor of the scientific process in the listing and its supporting documentation it should have been a red flag. This red flag was simply never addressed.  Robert Inman concerns continue in comment #42 on the relationship between roads and wolverine impacts as follows:

“In our Yellowstone study, we documented numerous road crossings. We did not publish a paper on it but chapter 7 of our 2007 cumulative report has info on >100 road crossings.”[34]

Peer reviewer concerns on foundational issues with the Proposal are not limited to just Robert Inman. John Squires expresses serious concerns in comment 38 about the asserted impacts of roads and recreation on wolverine populations as follows:

“I don’t have science to back this statement, but I find it hard to believe that wolverines are avoiding forest roads during winter in Montana. During winter in central Montana, we observe wolverine tracking crossing roads almost every day across multiple study areas as we trap lynx, including groomed roads with heavy snowmobile traffic.”[35]

Peer Reviewer John Squires concerns about human development and wolverine populations continue in comment 41 where he states as follows:

“The one animal that was documented dispersing from Wyoming to the southern Rockies in Colorado crossed multiple highways, including 4‐lane. If you are stress the road/semi barrier issue you should mention the one dispersal to Southern Rockies that was documented, did cross highways.”[36]

While the peer review process is somewhat discretionary in how it is responded to, 9 pages of highly detailed and specific comments about the Proposal warrants some type of response. This systemic failure simply must be addressed and corrected.  While we can support and fully understand disagreement of researchers on specific details or technical aspects of any work, as this is part of the basic scientific process, this level of conflict and disagreement is outside the norms of the scientific process and is evidence of significant underlying problems with the proposition being forwarded.

3(c) It is horribly predecisional to move a previous listing forward with significant alterations in factors involved in the basis for listing without analysis of these changes.

The Organizations are very concerned that the entire process was horribly and completely  Predecisional in its application. As the Organizations have  previously addressed, any assertion that the changes are simply based on new research is problematic factually and legally.  While the Proposal asserts to move the 2013 decision forward and update the science, the Proposal is something very different as the current proposal seeks to alter basic decisions such as the scope of the distinct population segment without updating the validity of that decision for 2023.  The Proposal further seeks to move possible threats to the species from uses that were of such low risk as to be specifically addressed for protection in the 2013 listing and moves portions of them to primary threats to the species.

3(c) It is predecisional to adopt a 2013 listing based on a lack of legal protections in Canada without addressing significantly expanded legal protection of Canadian wolverine since 2013.

The predecisional nature of the Proposal is again evidenced by the fact that the 2013 listing proposal was based on the limited or lower protections available for wolverine in Canada. The 2013 listing continued to apply ESA criteria to the declining populations in Canada, as exemplified in the following quote:

“Causes of these changes are uncertain, but may be related to increased harvest, habitat modification, or climate change.”[37]

The continued applicability of concerns such as this must be recognized in the Proposal as major change in listing status of wolverine in Canada in 2018.[38] While this is uniformly recognized as a major change in Canadian management of the species it is never addressed in the Proposed listing despite this change being highly relevant to possible impacts to population sizes of wolverine in the research area of the Barrueto.  The myriad of factors that are addressed in the Canadian listing are FAR beyond the scope of the proposed US listing as most wolverines are in the artic circle region of Canada and that population is doing well.  The Canadian management of wolverine also must address many tribal issues in the management of the species, which may negatively impact the species.  This again warrants discussion in the Proposal given the significance of this difference to the 2013 listing.  This again has not occurred.

The predecisional nature of the Proposal as presented is significant and evidenced by the conflict in the Proposal in the treatment of Canadian regulations of the wolverine in the Proposal. If the Proposal was viewed in isolation, one could conclude that there has not been any changes in Canadian management efforts for the species.   This is simply inaccurate as the Canadian Committee for the status of endangered wildlife in Canada significantly revised their regulations in 2018. The recovery plan for the Eastern Canadian wolverines was completed in 2016.[39] Clearly these are major regulatory changes that should be addressed in any management plan given the significant of this distinction in planning for US wolverine management.

The 2013 USFWS listing found the international boundary significant in the listing concluded as follows:

“In our 12-month finding for the North American wolverine DPS (75 FR 78030) we conducted a complete analysis of the discreteness of the wolverine DPS that we incorporate here by reference. In that analysis we concluded that the   international boundary between Canada and the United States currently leads to division of the control of exploitation and conservation status of the wolverine. This division is significant because it allows for potential extirpation of the species within the contiguous United States through loss of small populations and lack of demographic and genetic connectivity of the two populations. This difference in conservation status is likely to become more significant in light of threats discussed in the five factors analyzed below…… Existing regulatory mechanisms are inadequate to ensure the continued existence of wolverines in the contiguous United States in the face of these threats. Therefore, it is our determination that the difference in conservation status between the two populations is significant in light of section 4(a)(1)(D) of the Act, because existing regulatory mechanisms appear sufficient to maintain the robust conservation status of the Canadian population, while existing regulatory mechanisms in the contiguous United States are insufficient to protect the wolverine from threats due to its depleted conservation status.”[40]

The myriad of problems presented by application of the 2013 USFWS position in 2023 cannot be overlooked as many of the conclusions reached in 2013 were factually problematic. Aligning the 2013 decisions with subsequent changes in management would be difficult.   We do not contest its possible validity for Canadian management responses but this relationship is not a US decision as wolverine are listed as a species of Special Concern in Canada and separately listed for ESA purposes in the United States. Canadian efforts have also included the release of a recovery plan for the eastern populations of wolverine in Canada and   heightening of regulations in 2018 with another round of management changes for the western Canada wolverine. Wolverines  are also threatened in Ontario under the Ontario Endangered Species Act in  2007 which has also conducted on-going management efforts.

The need to address changes in Canadian management decisions made in response to possible population declines is exemplified by the conclusions of the Barrueto research, which was levels of trapping of wolverine in the area were simply too high to be sustainable.  It is important to note that wolverine trapping has not been permitted in the US for decades. Clearly additional restrictions on trapping in the US would have been unwarranted as US regulations prohibit trapping and only allow for incidental take permission for trapping of other species. Clearly the Service was pressured to do something to protect wolverine, which only drove the two management models further into conflict with each other.  The relationship between the US listing and Canadian management plans issued after the previous listing is the immediate conflict between management concerns in the two efforts. Canadian management plans entirely fail to recognize dispersed recreation as a management issue, rather focusing on factors such as timber and mining as priority threats.[41] This immediately begs the question of why was this overlooked?  The only rational conclusion is the possible impacts to wolverine from recreation are so minuscule as to be disregarded in the plan. If alignment of these regulations is the goal of this effort, alignment of management responses must be addressed as well. We simply cannot accept what is identified as a primary threat in the US is largely unregulated in Canada for the same species. But we must question any relationship to the US management situation, which has not changed.  The predecisional nature of the Proposal on this fact is furthered by the decision of the Canadian government that dispersed recreation is of such low threat to the species as to not even warrant analysis.

4(a) There is a staggering lack of information on the species including basic population estimates and agreement on population trends in the Proposal.

The arbitrary nature of the Proposal is again evidenced by the wide range of population estimates that have been involved in the management of wolverines.  The wide range of estimates regarding the population of wolverines in the lower 48 states result in problematic application of population estimates and asserted declines in Canada. This is concerning as establishing some type of baseline of existing population is necessary before any assertion of a possible decline in the population could be made. The immense ambiguity of population estimates in the contiguous 48 states is concerning as this range is outlined as follows:

“The precise size of the wolverine populations in the contiguous United States are currently unknown but may be small due in part to their large territories and the limited amount of available habitat in the contiguous United States. Estimates based on extrapolations of densities and suitable habitat suggest there could have been approximately 318 wolverines (95 percent CI = 249–926) in the contiguous

United States more than a decade ago (Inman et al. 2013, p. 282). The best available estimates of effective population size of wolverines in the contiguous  U.S. portions of the Northern Rocky Mountains and North Cascades are likely fewer than 50 combined (Schwartz et al. 2009, p.3226).”[42]

Again, this assertion of the Proposal is problematic as most states are not providing population estimates for wolverines in their boundaries. The lone state providing populations estimates is the state of Idaho, which provides a summary that is in direct conflict with an assertion of population collapse, is as follows:

“Wolverines naturally occur in low densities across their global range. Current western U.S. population estimates range from 250 to 318 individuals, reflecting the estimated population prior to European settlement. These levels suggest that wolverines have reclaimed large expanses of their historical range in the contiguous U.S. after historical lows or local extirpations in the early 1900s. This pattern is evident in Idaho, where wolverines have been reported in 34 of 44 (77%) counties and presently occur in most, if not all, historically occupied habitat in Idaho. This resurgence is likely attributed to the important refugia provided by Idaho’s large wilderness areas and the wolverine’s status as a state-protected species since 1965. The wolverine is recognized as an Idaho Species of Greatest Conservation Need in the Idaho State Wildlife Action Plan based on low rangewide populations and lack of state population trend information.”[43]

The immediate and complete conflict of this research with the conclusions in the Proposal cannot be overstated. Similar more generalized sentiments were displayed by the State of Washington on the stability of the wolverine population in the Cascades, as Washington Fish and Game concluded in 2020 as follows:

“The occupancy estimate of 43% for the survey area in Washington indicates that nearly half of the suitable habitat available in Washington was used by wolverines during the survey. Given the substantial amount of suitable habitat in the Washington Cascades, this finding suggests that the wolverine population is sufficiently large and widely distributed to be unlikely to suffer extirpation in the immediate future. Give the limitations of our data, we cannot provide reliable projections for population persistence over longer time periods.”[44]

While Washington does not provide specific population numbers, this information would indicate their conclusions are an upward trend for populations in the State. Again, this is far from the collapse that the Service is asserting as occurred.  Similar positive trends for wolverine populations were provided by the State of Wyoming which clearly stated their findings in 2020 as follows:

“The survey, planned to be repeated at five year intervals confirmed the broad distribution of wolverines across the region and documented population recovery above their historic lows. For the first time ever, wolverines were detected in the Gros Ventre Mountains and the southern Wind River Range.”[45]

Again, this is far from the collapse of populations of wolverine that the Service is asserting is occurring. In 2022 Montana Fish, Wildlife and Parks Department provided the following conclusion on populations of wolverine in Montana as follows:

“Wolverines were detected in the same number of cells during each study, although there was a slight shift in detections from Montana to Idaho. The significance of these spatial differences in detections will be discussed in the manuscript that is currently being drafted by Lukacs et al. Wolverines continue to be detected throughout the extent of their known range and have also been recently detected in areas previously thought to be outside of their normal distribution. ”[46]

This published peer reviewed position falls well short of the collapse in populations that the Service is asserting based on research entirely outside the DPS. The direct conflict of the Service conclusions with all state information regarding the wolverine causes us significant concern that the Proposal has only selectively applied new research. Research noted in conclusion is more than 15 years old making any assertion of new information for the listing impossible to defend. This is a problem that must be resolved if any assertion of new research being the basis for applying the 2013 listing is to be found factually accurate.

4(b) Factual uncertainty of wolverine with changes in Canada regulations.

The Organizations are aware that there are questions about the status of the wolverine populations in Canada generally. Canadian wolverine in the far north of Canada appears to be highly sustainable, despite the unregulated operation of dispersed motor vehicles and their unrestricted trapping.   The Canadian government and Alberta provincial governments  are both looking at revising regulations for wolverine trapping as over trapping appears to be the basis for decline.   As the Organizations have noted throughout, we are very concerned that the entire Proposal is horribly predecisional. The Service has chosen to blindly move ahead with listing rather than waiting to see what the Canadian response is in terms of trapping regulations and the benefits of addressing the primary threat to the species.  This simply makes no sense as US regulations will never solve a Canadian issue.

The challenge that is again presented by the predecisional making in the Proposal is the fact that if we accept the 2013 listing and its conclusion that southern 48 United States was a DPS based on the different regulatory processes and standards for the species, we must question if Canadian regulations are heightened is the 2013 conclusion on the DPW still even valid.   Again, these are foundational questions that must be resolved.

The predecisional nature of the decision to not address Canadain government responses to wolverine population changes also allows managers to avoid other foundational questions.  Another question that the decision to simply move the 2013 listing forward is the fact that the  2022 Barrueto research is addressing wolverine population in an area outside the area researched by Aubry in 2008.   Again, we are unable to align these decisions and research efforts as they are not even addressing populations of wolverine in generally the same areas. This is simply nowhere near best available science but is simply an attempt to create a worst case scenario for the species to support the preordained decision of the listing, mainly that the species would be listed and motorized recreation was the primary threat.

5. Significant new research and management documentation have found that snow compaction is a natural process.

The relationship of dispersed winter recreation and wildlife has been the topic of some of the most theoretical and speculative analysis in the listing of species possible. Again, this is a theory that we continue to be told has never been researched, despite the fact it has been researched extensively.  The failure of the Proposal to accurately reflect threats to the wolverine is further evidenced by additional research that has been published and concludes that snow compaction at the landscape level is a natural process. This research again found the presence or lack of snow as the single largest factor impacting wolverines based on three years of site-specific tracking of a large number of animals. [47]  At no point are factors such as recreation or human activity even mentioned in this research.  Even more troubling is this research is again not mentioned in the Proposal.

These conclusions are buttressed by the fact that 41% of wolverine habitat in the lower 48 is in Congressionally designated Wilderness or National Parks, where the large-scale use of what is asserted to be a primary threat simply does not occur.  This research calls into direct question any assertion that  human activity can possibly compact snow to such a level as to impact the species. This type of a concern has been woven throughout the discussion of possible concerns around human recreational activity in all forms compacting snow and providing a competitive advantage to other species.

The snow compaction concern has been present with wolverine questions since original proposals and research on the species started.  This research coincided with concerns about lynx being possibly impacted by snow compaction, which was highlighted in the astonishingly speculative and theoretical 201Lynx Conservation Assessment and Strategy. In the decade following this document, sufficient research was performed to allow the  2013 LCAS for the southern Rockies to remove snow compaction as a threat to the lynx.   The most recent update for the lynx has completely removed dispersed recreation and snow compaction as threats to the Lynx.  The Organizations must question how two species that were at one point almost identical in research and management concerns could have taken such hugely different courses in management decisions over the same period of time. This Glass research is not addressed in the Proposal before it concludes that recreation is a threat despite researcher’s conclusions on compaction not even being addressed in either document.

6. The Organizations support the Proposal determination that critical habitat for wolverine cannot be determined.

While the Organizations have serious concerns with the basis of the Proposal, we do support the decision to not designate critical habitat for the species at this time.  While the Organizations support this determination, we would be remiss if we did not recognize that the conflict between lacking information to designate critical habitat and asserting there is sufficient research to identify recreation as a primary threat is immense. The Proposal outlines the decision not to identify critical habitat as follows:

“Therefore, due to the current lack of data sufficient to perform required analyses, we conclude that the designation of critical habitat for the DPS is not determinable at this time in accordance with 50 CFR 424.12(a)(2)(i). The Act allows the Service an additional year to publish a critical habitat designation that is not determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).”[48]

The Organizations are intimately familiar with the significant economic impacts that could result to western communities as a result of critical habitat designations for the wolverine.  We have specifically not addressed issues such as economic analysis and other information to be addressed in a critical habitat designation based on the specific identification that this designation was not happening. Public comment must be provided on this issue and designation of critical habitat without this public comment is entirely inappropriate.

While we support the decision that critical habitat cannot be designated at this time, we are concerned that numerous other factors must be addressed in the designation of critical habitat for any species. Given the huge amount of uncertainty around threats to the wolverine issues such as what is necessary for the survival of the species.  The recent Weyerhaeuser Supreme Court decision provides a standard that would be problematic on this issue which is outlined as follows:

“Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.”[49]

Given the high level of mobility that has been well documented by the species, the Organizations must question how habitat for the species could be identified. Additional determinations must made regarding if the best interests of the species was furthered by such designation under the ESA. This is clearly identified as follows:

“The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.”[50]

None of these other factors are addressed in the Proposal and must be specifically addressed  as determinations on critical habitat issues have been made in previous listings.  Again, the Organizations vigorously support the decision not to identify critical habitat for the species at this time, even though we object to the decision to list the species based on the 2013 decision and the fails in the science addendum update.

7. Conclusion.

Our opposition to the Proposal is not a position we take lightly or without thought as the motorized community has been supporting wolverine and related species research for several decades. Our support has included direct funding of research and donations of equipment for researchers. When those researchers have run into trouble in the backcountry while performing their research, we have been the members of the public that recovered broken equipment, stuck riders and provided other indirect support for the researchers. This research partnership has spanned almost a decade with the hope of identifying the relationship between wolverine populations and recreation in all forms. Given the relationship  we have had with globally recognized leaders in research of wolverine challenges, we are intimately aware of the lack of relationship between wolverine populations at the landscape level and dispersed motorized recreation as this has been the basis of extensive candid discussions.

We are disappointed the Proposal twists what has historically been a good partnership working towards solutions for the species and several other species into an overly political and highly charged discussion again.  Rather than recognizing the decades of research that has failed to establish a relationship between wolverine populations and dispersed recreation , the Proposal simply asserts that research has never been undertaken. This position could not be further from the truth but rather directly evidences one of the most glaring failures of the Proposal.  Inconclusive research is simply not the basis for listing but is rather an indication that the relationship being researched does not exist.  In direct contrast to the efforts we have undertaken to support research, where we have worked hard with researchers to clearly identify challenges or conclusions to benefit the species. The Proposal often entirely misquotes conclusions of works, ignores other research entirely, applies legal standards in a completely inconsistent manner to create what can only be summarized as a worst-case scenario for the wolverine in order to support a possible listing.  This is frustrating and disappointing to us as we have decades of effort supporting high quality research to try and resolve these questions and results in a listing decision that is largely indefensible on the merits.

Our opposition to the Proposal is based on both the poor level of analysis provided on the wolverine as this will not benefit the wolverine.  Our opposition is also based on the horrible precedent that it is setting as an ESA listing should not be based on an inability to establish a relationship after years of research.  ESA listings must identify actual significant threats to the species and address those challenges. Arbitrarily elevating political concerns outside the species will never protect the species  or remove it from listing.  A listing decision must be based on best available science and not the arbitrary creation of a fact pattern that is now being made to support previously made decisions.  We are concerned that the result of this effort will be an immense amount of conflict in any planning effort that will generate no benefit for the species.

While we are opposed to the listing based on the lack of credible science, the decision not to designate critical habitat is supported as there is no change in population trends and many researchers have determined that populations are increasing.  Until arguably accurate population counts can be created, and far more accurate information can be identified regarding the life cycles of the species, there is no reason to designate critical habitat.

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.

Scott Jones, Esq.
Authorized Representative- COHVCO
Executive Director CSA

Chad Hixon
Executive Director
Trail Preservation Alliance

Marcus Trusty
President
CORE

Sandra Mitchell
Executive Director, IRC
Authorized Representative, ISSA

[1] As an example Heinemeyer et al;   WOLVERINE – WINTER RECREATION RESEARCH PROJECT: INVESTIGATING THE INTERACTIONS BETWEEN WOLVERINES AND WINTER RECREATION  2013 PROGRESS REPORT NOVEMBER 16, 2013 at pg. ii

[2] See, L.E. Olson et al. Modeling large-scale winter recreation terrain selection with implications for recreation management and wildlife/ Applied Geography 86 (2017) 66e91Pg 71

[3] See, Wolfson, David W., Peter E. Schlichting, Raoul K. Boughton, Ryan S. Miller, Kurt C. VerCauteren, and Jesse S. Lewis. 2023. “Comparison of Daily Activity Patterns across Seasons Using GPS Telemetry and Camera Trap Data for a Widespread Mammal.” Ecosphere 14(12): e4728. https://doi.org/10.1002/ecs2.4728

[4] See, Proposal at 83760

[5] See, Colorado Parks & Wildlife – Wolverine (state.co.us) Accessed 1/10/24

[6] A copy of Bill has not been released at the time of submission.  Release of this legislation is expected in the next week and the Organizations reserve the right to attach this legislation as Exhibit 1 to these comments.

[7] Please see Western Governors Association Report on the effectiveness of highway management efforts on protecting wildlife and CPW research on the effectiveness of wildlife overpasses and area management efforts which are attached as Exhibit 2.

[8] See, Jung, Thomas S., Michael J. L. Peers, Ryan Drummond, and Shawn D. Taylor. 2023. “Dining with a Glutton: An Intraguild Interaction between Scavenging Wolverine (Gulo gulo) and Lynx (Lynxcanadensis).” Ecosphere 14(10): e4491. https://doi.org/10.1002/ecs2.4491

[9] A selection of meeting minutes and other documents are attached as Exhibit 3.  Lists of specific attendees are available but not included in these comments as these comments are public record and the list of attendees included personal contact information for numerous attendees.  We did not believe it was appropriate to make such information public without making provisions to protect this personal information.

[10] See, DOI; USFWS; Endangered and Threatened Wildlife and Plants; Threatened Status for the Distinct Population Segment of the North American Wolverine Occurring in the Contiguous United States; Establishment of a Nonessential Experimental Population of the North American Wolverine in Colorado, Wyoming, and New Mexico; Proposed Rules;  Vol. 78, No. 23 / Monday, February 4, 2013 at pg. 7878.

[11] See, DOI; USFWS 2018 Wolverine science update at pg. 61. (Hereinafter referred to as the “2018 Wolverine science update”)

[12] See, 2018 Wolverine Science update at pg. 61.

[13] FAQ page U.S. Fish and Wildlife Service announces final rule to list North American wolverine as threatened in contiguous United States (fws.gov) accessed 1/11/24

[14] See, Defenders of Wildlife v Jewell; Decision DISTRICT COURT MONTANA CV 14-246-M-DLC; April 2016 pg. 72.

[15] See, Proposal at pg. 83729

[16] See, Heinemeyer, K., J. Squires, M. Hebblewhite, J. J. O’Keefe, J. D. Holbrook, and J. Copeland. 2019. Wolverines in winter: indirect habitat loss and functional responses to backcountry recreation. Ecosphere 10(2):e02611. 10.1002/ecs2. 2611 at pg. 13.

[17] Lukacs, Wolverine Occupancy, Spatial Distribution, and Monitoring Design, The Journal of Wildlife Management  84(5):841–851; 2020; DOI: 10.1002/jwmg.21856 . A complete copy of this publication is attached to these comments as Exhibit 5.

[18] See, Proposal at pg. 83729

[19] See, Idaho Dept of Fish and Game; Wolverine Persistence in an Idaho Core Population Area;  Prepared By Diane Evans Mack and Eric Hagan  February 2022 at pg. 2. A complete copy of this publication is attached as Exhibit 4. (Hereinafter referred to as the 2022 Idaho Wolverine Report)

[20] See, 2022 Idaho Wolverine report at pg. 8.

[21] See, 2022 Idaho wolverine report at pg. 10

[22] See, Bennett v. Spear, 520 U.S. 154 at 169 (1997).

[23] See, Center for Biological Diversity v. Norton, 2002 WL 1733618, at 8 (Dist of DC 2002)

[24] See, Maine Lobstermen’s Association v. National Marine Fisheries Service, No. 22-5238 (D.C. Cir. 2023) June 16, 2023

[25] See, Listing Proposal at pg.  83759

[26] Public Law. 114-46

[27] Public Law 115-334 & Public Law 115-430

[28] Public Law 116-9

[29] See, §515 Public Law 106-554

[30] See, DOI; US Fish and Wildlife Service; U.S. Fish and Wildlife Service Information Quality Guidelines and Peer Review memo (revised June 2012 ) pg. 6. A complete copy of this memo is available here U.S. Fish and Wildlife Service Information Quality Guidelines and Peer Review (fws.gov)  (Hereinafter referred to as the “USFWS peer review memo” for purposes of these comments)

[31] See, USFWS peer review memo at pg. 12

[32] See, USFWS peer review memo at pg. 2.

[33] See, USFWS peer review memo at pg. 3

[34] See, USFWS peer review memo at pg. 4

[35] See, USFWS peer review memo at pg. 4

[36] See, USFWS peer review memo at pg. 4

[37] See, 2013 Listing Proposal at pg. 7869.

[38] http://www.canada.ca/en/environment-%0Aclimate-change/services/species-risk-public-registry/%0Aorders/amend-schedule-1-volume-152-number-12-june-2018.%0Ahtml

[39] A complete copy of the 2016 recovery plan for eastern wolverines is available here: Wolverine (Gulo gulo) (publications.gc.ca)

[40] See, 2013 Listing proposal at pg. 7873

[41] For additional information on Canadian Wolverine management efforts please see Wolverines (wcscanada.org)

[42] See, 2023 Listing Proposal at pg. 83761

[43] Idaho Fish and Game 2014 report at pg. v.

[44] State of Washington: Western States Wolverine Conservation Project: results of the Washington Wolverine Survey, Winter 2016-2017; February 2020 at Pg 15.

[45] See; Wyoming Fish and Game; Wyoming wolverine management plan; July 2020 at pg. i.

[46] See,  Montana Fish, Game and Parks;  Wolverine Survey Summary Report:  2016‒2017 and 2021‒2022;  June 2023 at pg. 8.

[47] See, Glass et al Spatiotemporally variable snow properties drive habitat use of an Arctic mesopredator; Oecologia (2021) 195:887–899; https://doi.org/10.1007/s00442-021-04890-2.  A complete copy of this research is attached as Exhibit 6.

[48] See, 2023 Listing Proposal at pg. 83771

[49] See, Weyerhaeuser v. USFWS; 586 US ___ (2018) at pg. 9

[50] 16 USC 1533(b)(2)

Dept of Interior
Director- BLM (HQ-630)
Room 5646
1849 C Street NW
Washington DC 20240

RE: Proposed Temporary closures and restriction orders, RIN: 1004-AE89

Dear Sirs:

Please accept this correspondence as the comments of the above Organizations in vigorous opposition to the proposed expansion of authority to issue temporary closures and restriction orders on lands managed by the BLM (“The Proposal”). The Proposal spans a mere five pages of the Federal Register providing a wealth of random unsupported assertions combining wildly disparate situations to support creating new management authority under the guise of streamlining authority managers have had for decades. The Proposal then addresses unusual concerns around existing authority is be applied, such as asserting there are significant appeals of emergency closures currently. This is problematic for many reasons. We simply are not aware of any appeals of closures during the course of the active emergency.  We are aware of numerous closure orders being challenged when the order is in place years after the emergency has ended or when emergency conditions were never present. These are different issues and should never be lumped into a single concern or issue.

While the Proposal asserts to be streamlining existing authority, the Proposal attempts to provide new basis for closures, based on undefined concepts such as “implementation of management responsibilities” for unspecified periods of time. No discussion of what these terms mean or how these changes could be applied under existing regulations is provided at all. The open-ended nature of the Proposal creates the possibility that emergency closures could span decades by allowing closure orders to exist until Resource Management Plans can be updated despite the basis being far from an emergency.

In isolation, this is deeply concerning as much of this information is inaccurate, proposed changes are not highlighted for the public to understand and comment meaningfully on. The Proposal is highly frustrating to existing partners as it appears to be merely another step in the opening of BLM to large scale leasing of federal public lands to Natural Asset Companies without public engagement in any phase of this discussion.  The Proposal is clearly seeking to allow emergency closure orders to be issued in circumstances where there is little proximate and significant risk to the public simply to avoid NEPA analysis of leasing efforts. It is highly frustrating the Proposal seeks to apply provisions created for effective and efficient manager response to true on the ground emergencies in a manner that was never intended when this authority was created. We believe this effort will ultimately be unsuccessful and could actually result in significant negative impacts to resources. The use of emergency response provisions in this manner will create significant erosion of support for these provisions and expand distrust of the public in any action the agency takes.

1(a) 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 representing the OHV community seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport. CORE is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. The Idaho State Snowmobile Association (“ISSA”)is an organization dedicated to preserving, protecting, and promoting snowmobiling in the great state of Idaho. Our members may come from every corner of the state, but they all share one thing in common: their love for snowmobiling. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands most of which has occurred on BLM lands. Over 750 individuals have contributed money or volunteered time to the organization. Nevada Off Road Association (NVORA) is a non-profit Corporation created for and by offroad riders. NVORA was formed to specifically fill the void between the government managers and the rest of us who actively recreate in the Silver State. NVORA does this by maintaining a consistent, durable, and respected relationship with all stakeholders while facilitating a cooperative environment amongst our community. Collectively, TPA, NORA, CSA, CORE, IRC, RwR, ISSA, and COHVCO will be referred to as “The Organizations” for purposes of these comments.

Nationally, the OHV community provides between $200-$300 million dollars into public lands management every year as a result of their voluntarily created OHV/OSV registration programs. As an example, the California OHV grant program provided $85 million in grants last year, and over the life of the program has funded more than $750 million in direct funding to public land managers.^[1] The benefits of the California OHV program are outlined as follows:

* Through our USFS partners, over 18,000 miles and 269,000 acres are available for OHV Recreation.

* Through our BLM partners, over 18,000 miles and 478,000 of acres are made available for OHV Recreation.

As another example, Colorado’s voluntary registration programs put almost $9m annually in grants back on public lands, and over the life of this program this has now provided more than $100m in funding for public lands to maintain and protect all forms of resources.^[2]  This Program funds more than 60 maintenance crews throughout the state in addition to equipping and often training them to.  Clearly efforts at the scale of these voluntarily created programs warrant inclusion in the discussion of possible closures for emergency response and conservation efforts as our involvement has addressed many emergency situations and restoration efforts following an emergency.  Most states that BLM owns lands in have similar programs that provide similarly high levels of funding but these programs extend well beyond just federal public lands and many states have OHV/OSV programs but have little to no federal public lands.

The failure to recognize partnerships like this and its benefits for recreation and conservation  have resulted in erroneous and damaging statements in the Proposal.  This recognition of the benefits of multiple use restoration efforts through partners  in protecting the future of multiple uses in the area could have been highly valuable. As an example, the Colorado OHV program has contributed more than $1m over the last several years to repair the impacts of the East Troublesome fire which impacted more than 190k acres largely on BLM’s Kremmling FO and Arapahoe/Roosevelt NF.  Initial efforts targeted restoring basic access to the area to allow restoration efforts to even start and we anticipate planting many seedlings and monitoring the area to conclude these efforts.[3]  This is a type of project that commonly occurs within our OHV/OSV programs.  These are the type of projects we would be concerned about slowing down if there misplaced concerns around emergencies.  Why would a partnership such as this not be highlighted and targeted for future planning efforts?

The efforts of the motorized community extend well beyond landscape level efforts and often are targeting much smaller scale areas on an on-going basis through permits. Many of our local volunteer clubs work with land managers have executed “adopt a trail” or “adopt a road” type agreement for large portions of routes in planning areas.  These clubs often partner with managers on very small acre projects and efforts to address impacts of illegal shooting or dumping in areas with clean up days. Often these events are the basis of a temporary closure order from the BLM Office to allow for this effort to take place and these efforts have been highly effective in mitigating impacts of illegal activities.  Why would this need to be changed?

The Organizations and our members obtain hundreds of permits every year from BLM to hold events of all sizes.  These include many of the larger races such as King of the Hammers or Best in the Desert races noted in the Proposal but also include many tiny events where exclusive possession of public lands is not sought and in some situations events may not come into contact with BLM managed lands. These small events may include poker runs, educational events, site cleanups and many other efforts.  Our experiences have been diverse but we are not aware of any permitted events where there have been claims that the BLM lacked authority to timely close the area if the event posed a possible risk to public safety or resources. We are concerned that poor public engagement or expanded closure authority could be used as a tool to stop permitted events by those that may have opposed the event in the NEPA process.

1(b) The Proposals failure to analyze existing partnerships will result in damage to those relationships.

In our experiences, the assertions the Proposal is seeking to avoid delay in emergency public lands closures, which are based on situations that are unforeseen and a direct imminent risk to public safety or resources simply lack factual basis.  The Proposal asserts delays could result from possible appeals of temporary closure orders under processes put in place to protect due process and public engagement of interests that might be impacted by closures.  This simply has not been our experience. The Organizations are aware of objections and challenges to overly broad closure orders that persist for years following an emergency response but this is a different situation than is raised in the Proposal.   We are unable to understand how permitted events could be seen as a similar management situation to emergency response.

BLM has a huge number of provisions that allow for temporary closures and restrictions of public lands for a variety of reasons.  Understanding the nuisances of these existing authorities and response tools is critical to an effort to reform or streamline any management authority.  BLM consistently uses these authorities to respond to proximate and unforeseen risks to public safety or resources, which the issuance of closures in response to wildfires or floods. Avoiding impacts to the existing authority to issue this type of Order and the issue specific remedies that are provided for subsequent to the issuance of the emergency order would seem to warrant some type of discussion in the Proposal. These factors range from true emergency closures during the event to restoration efforts  that may be occurring in an area post event.  Rather than discussing the relationship of existing emergency provisions, the Proposal would appear to consolidate all permitted events and emergency management actions into a single category for the issuance of closure orders.  This consolidation of authority could create barriers for management rather than resolve them as requirements for meeting various statutory requirements for funding responses are not addressed.

The preservation of due process and public engagement of interests that may be impacted by any closures is critical to protecting multiple uses. The Proposal, when taken in conjunction with the recently released BLM Conservation Strategy, only increases our concerns for the protection of due process and public engagement for any interest that may be impacted in this process. This new Conservation Strategy created the concept of a conservation lease that could be issued in response to the climate emergency.  Assuming for the sake of these comments, there is a climate emergency the challenges sought to be addressed in the Conservation Strategy are neither unforeseen, or when compared to a fire or flood, or pose  the immediate and proximate risk to public safety or resources to warrant an expedited closure processes without public engagement.  While the Conservation Strategy addresses threats less proximate and unforeseen than a traditional emergency, the Proposal seems to allow a similar response from managers. When  the Proposal is taken in concert with the Conservation Strategy, it appears the ending management situation would allow for closures of public lands by the leaseholder but fails to address how these closures would be vetted for NEPA compliance and other regulatory requirements. The current Proposal only expands this concern around due process and public engagement as the Proposal seeks to provide almost open-ended authority for managers to close areas until RMPs can be revised to address an issue.  The Organizations are unable to understand how an emergency risk could be tied to an artificial deadline of a revision of a planning document that maybe decades away would not be hugely problematic to implement on the ground.

Each of these  existing models of management responses  are the result of the highly variable nature of the proximity and foreseeability of each risk to the public or resources.  The proximity of risk to the public or resources and foreseeability of the risk are factors that must be balanced in any regulatory structure responding to this issue with due process protections and public engagement. The Organizations are supportive of greater transparency in public lands management and public access to public lands for  a variety of reasons.  The Organizations vigorously assert the Proposal fails to strike the proper balance in protecting due process and public engagement in public lands management and moves towards closure orders being issued for management concerns that have not been  subjected to NEPA or emergency closures being issued for issues that are neither unforeseen or a direct imminent risk to public safety or resources.

2(a)(1). Existing statutes and regulations allow the IBLA and the BLM Director to issue immediately applicable emergency closure orders.

Currently, BLM managers have wide ranging authority to issue temporary closure orders for public lands, including permitted events and emergency responses. The Organizations are not aware of concerns around the use of this authority when it is narrowly tailored and responding to a serious and direct threat to public safety or resources.  However, land managers must balance a variety of concerns in making these decisions.  The rational use of these closure authorities has created significant trust between managers and local communities when these communities face an emergency. Goodwill between managers and the public is immediate when BLM managers use their authority to protect public safety or resources by issuing closures in response to local conditions such as fires, floods and other unforeseen significant risks to that community. Closure orders are also issued for events and there is often support from the communities  who feel engaged in the decision making for events and often are the direct recipients of the economic benefits of the events. The management goodwill from existing efforts will be negatively impacted if the Proposal is implemented, as there is no balance of competing interests even addressed and risks are simply not a direct or imminent risk to public safety or resources due to a localized condition.

Unlike existing regulations, the Proposal fails to balance between emergency closure authority and legally required due process and statutorily required public engagement in public lands management decision making.  This will massively erode public support for emergency response and other needed management actions. The Proposal is entirely unsuccessful in providing any credible basis to alter the current regulatory mechanisms addressing these issues.  Rather than addressing changes in a meaningful manner, the Proposal chooses to make random inaccurate assertions on various issues, including existing closure authority. The failure of the Proposal to address authority in a coordinated and thoughtful manner will create conflicts with communities as some will be forced to bear more burden of closures than others, who are facing a similar risk. Questions about why public land was closed in certain areas and not others to address a threat that is entirely unrelated to the public lands will not lead to anything but creating division between communities and managers.

The failure of the Proposal  to accurately reflect current authority is immediate as it asserts managers  lack of authority to issue immediately effective emergency closures.  As an example, the Proposal makes numerous references to public safety or resources being the basis for the request for expanded closure authority such as the following:

“However, aspects of 43 CFR 8364.1— such as the requirement to publish temporary closure and restriction orders in the Federal Register and the absence of a provision authorizing the BLM to issue temporary closure and restriction orders with immediate full force and effect—can hinder the BLM’s ability to respond effectively to exigencies that arise on public lands. Streamlining and modernizing the manner in which the BLM notifies the public about temporary closure and restriction orders, as well as providing authorized officers with the ability to issue such orders with immediate effectiveness, would allow the BLM to better perform its mission to responsibly manage public lands and protect public safety.”[4]

The conflict with this assertion and existing regulatory authority is immediate and immense as existing BLM regulations provide broad authority for emergency closures in a wide range of situations.[5] It has been our experience that emergency closure orders in relation to active fires are an overwhelming reason for the issuance of closure orders. We are not aware of any challenges being presented around the timely issuance of closure orders as part of an active fire response.  The lack of legal challenges is evidence of the overwhelming support the public has for these efforts.  The existing regulations specifically allow emergency closure authority in fire response efforts as follows:

“§9212.2 Fire prevention orders.  (a) To prevent wildfire or facilitate its suppression, an authorized officer may issue fire prevention orders that close entry to, or restrict uses of, designated public lands.

(b) Each fire prevention order shall:

(1) Identify the public lands, roads, trails or waterways that are closed to entry or restricted as to use;

(2) Specify the time during which the closure or restriction shall apply;

(3) Identify those persons who, without a written permit, are exempt from the closure or restrictions;

(4) Be posted in the local Bureau of Land Management office having jurisdiction over the lands to which the order applies; and

(5) Be posted at places near the closed or restricted area where it can be readily seen.”[6]

Contrary to the assertions in the Proposal that BLM managers lack authority to issue closure orders that are immediately effective, the above provisions provide broad authority for closures in response to an emergency that is unforeseen and which presents an imminent and direct threat to public safety or resources. We are unable to identify any emergency closure order issued for active fire response that has been appealed.  If this is a concern it should have been raised in the Proposal and addressed with greater detail.  While we are aware of challenges to closure orders being in place extended periods of time after the proximate and direct risk to public safety or resources has passed, this is a different management concern and outside the scope of what the Proposal is seeking to achieve.

The inaccuracy of the Proposal summary of this management situation  expands as existing BLM regulations allow for expedited appeal process to review emergency closures and many other decisions at the BLM Director’s discretion. Current BLM regulations specifically provide this expedited authority as follows:

Ҥ 4.21 General provisions.

(a) Effect of decision pending appeal. Except as otherwise provided by law or other pertinent regulation:

(1) A decision will not be effective during the time in which a person adversely affected may file a notice of appeal; when the public interest requires, however, the Director or an Appeals Board may provide that a decision, or any part of a decision, shall be in full force and effective immediately;”[7]

The Organizations simply cannot envision a situation where an emergency closure for an issue that was truly unforeseen and a risk to the public or resources, such as a fire or flood, would not be subject to the use of the public interest exception provided. If this situation is actually arising, the remedy should be educating line officers on their ability to issue orders such as this and providing a clearly defined guidance document for local managers to understand the Director concerns about making a decision in this manner. The remedy simply is not new regulations. The Organizations are concerned that this waiver provision is not mentioned in the Proposal, and this creates the possibility the Proposal is seeking to address issues outside those discussed in the register notice.  The Organizations are not able to envision a situation where there is an actual emergency threatening the publics health safety and welfare or resources, where such a finding would be difficult to issue.   These Orders simply are not challenged or appealed to the best of our knowledge. If this type of an appeal is common, the Proposal should have provided this information and has not.

Our concerns around the basis and direction of the Proposal expand when the exceptions  for closure orders specifically addressed in the Proposal are reviewed. These concerns are unusual to say the least.  An example of the unusual nature of these concerns would be exemplified in the Proposal provisions such as the following:

“The proposed rule clarifies that specific groups can also be exempt from closure or restriction orders, such as Tribal members that may need to access an otherwise closed area for traditional or cultural uses.[8]“

While the Organizations vigorously support the right of any member of the public to access public lands, the Organizations are finding it difficult to understand why this provision would be included in the Proposal if true emergency closures were the management concern. We find it difficult to identify a cultural resource that would allow public access to an area that was subject to closure for a fire or flood response effort. Again, if this was a management concern of some scale, the Proposal should have addressed the scale and scope of this issue.

The questionable basis of the Proposal around closure orders increases as many existing regulations provide a far more broad authority to managers to allow access into restricted areas for fire response than is provided by the above provisions.  BLM fire closure regulations again are used as an example of managers authority to provide limited public access as these regulations provide broad authority on this issue as follows:

Ҥ9212.3 Permits. (a) Permits may be issued to enter and use public lands designated in fire prevention orders when the authorized officer determines that the permitted activities will not conflict with the purpose of the order.

(b) Each permit shall specify:

(1) The public lands, roads, trails or waterways where entry or use is permitted;

(2) The person(s) to whom the permit applies;

(3) Activities that are permitted in the closed area;

(4) Fire prevention requirements with which the permittee shall comply; and

(5) An expiration date.

(c) An authorized officer may cancel a permit at any time.”[9]

This authority is commonly used to allow those impacted by fire and flood to gain access to areas to understand the scope and scale of impacts to them at the first opportunity the area is arguably safe for them to access the area. Could this authority be used to provide access to tribal members to access a cultural site? That answer is of course. We would be opposed to any assertion this authority has been used in a discriminatory manner or in a manner not recognizing cultural concerns.

Given the immensely broad existing authority to provide for site and issue specific flexibility in the administration of closure orders, the Organizations must question why cultural and tribal issues might be a concern.  The Proposal again fails to identify what significant concern is there for emergency closures and possible impacts to  cultural and tribal needs?  As a result, the new provisions provide less authority for managers to address access issues during a true emergency as there can be an innumerable number of issues that could be addressed in an emergency outside cultural and tribal access. Clearly the provision is not here to protect tribal access to lands that are closed due to an emergency such as a fire or flood.

The Organizations are also aware that many tribal and cultural sites are sensitive in nature and release of information on the sites are often legally protected. The relationship of these protections and the new provisions should be a concern, as the use of this provision to allow access would entail the need to provide additional legal basis for the order being issued.  This is a hurdle to the effective management of emergency responses as current authority is broad in nature and managers would have no trouble outlining an order that allowed access to tribal members without raising concerns about confidential information on sites and other resources. Again, these types of concerns also make us question why emergency response and permitted issues were thought to be the proper basis for the scope of the Proposal.  Cultural and tribal access in areas closed for permitted events should have been addressed in the NEPA process, and concerns like this should not be allowed to intervene after the NEPA process has closed as this would create an immense burden on the permit holder and possibly create public safety issues or resource impacts for the permit. Rather than streamlining the issuance of orders provisions such as this will only make the process more complicated.

2(a)(2). Existing CEQ regulations allow alternative arrangements for NEPA compliance in emergency response situations.

Existing BLM regulations further allow for a streamlined and expedited NEPA compliance process for emergency response, which further avoids the concerns about a possible delay in response by managers in emergency situations.  Given these broad and encompassing provisions for emergency response, the Organizations are not able to understand a benefit from including permitted events in the scope of the Proposal.  This is another example where the Proposal is complicating rather than streamlining any response, as these provisions that are currently reasonably clear.  This streamlined authority is outlined in BLM NEPA handbook as follows:

“2.3 EMERGENCY ACTIONS In the event of an emergency situation, immediately take any action necessary to prevent or reduce risk to public health or safety, property, or important resources (516 DM 5). Thereafter, other than those actions that can be categorically excluded, the decision-maker must contact the BLM Washington Office, Division of Planning and Science Policy (WO-210) to outline subsequent actions. The CEQ regulations (40 CFR 1506.11) provide that in an emergency “alternative arrangements” may be established to comply with NEPA. Alternative arrangements do not waive the requirement to comply with NEPA, but establish an alternative means for compliance.

The CEQ regulations for alternative arrangements for dealing with such emergencies are limited to the actions necessary to control the immediate effects of the emergency. Other portions of the action, follow-up actions, and related or connected actions remain subject to normal NEPA requirements, so you must complete appropriate NEPA analysis before these actions may be taken (40 CFR 1506.11).

The “alternative arrangements” take the place of an EIS and only apply to Federal actions with significant environmental impacts (see section 7.3, Significance). If the proposed action does not have significant environmental effects, then the alternative arrangements at 40 CFR 1506.11 do not apply.

If you anticipate the proposed emergency response activity will have significant environmental effects, we recommend that you assess whether an existing NEPA analysis has been prepared (e.g., implementing preexisting plans) or whether there is an applicable exemption. For example, certain Federal Emergency Management Agency (FEMA) response actions are exempt from the NEPA (see the NEPA Handbook Web Guide).

Given the large amount of flexibility already provided for in existing regulations, the Organizations find any assertion of possible delay in the ability of managers to respond to emergencies difficult to support or understand. If there are concerns, the Proposal should have addressed them.  The large amount of latitude in emergency response currently provided also causes the Organizations concern as this clarity is based on emergency management concerns and not the closures that are related to permitted events that have gone through NEPA.  These are separate issues and should be dealt with separately even if they are both addressing possible concerns for public safety or resources.

2(a)(3) Existing regulations provide for identification of starting and ending times of emergency closure orders.

The systemic failure of the Proposal to accurately address existing closure powers and existing minimum requirements for issuance of an order using this authority is again displayed in the Proposal provisions addressing the specificity of timing requirements in the issuance of closure orders. Existing provisions are largely aligned on the need to specify the start and end date of any emergency or closure order.  These provisions are simply not addressed in the Proposal, which asserts the declaration of closure times is a benefit of the Proposal. This alleged benefit is outlined in the Proposal as follows:

“require that all orders specify the date and time that a temporary closure or restriction becomes effective and terminates;”[10]

As previously noted in these comments, 43 CFR §19212.3 specifically mandates process needed to issue closure and restriction orders. These regulations have specific provisions requiring the timing of the applicability of these restrictions for a beginning and end date.  Again, we are unable to align these existing highly specific regulations  addressing the need for specific dates to start and stop area closures with an assertion that the Proposal will expand the clarity in the scope of closure dates as identified.

2(a)(4) Emergency provisions provide significant short and long term emergency response declarations

Accurately addressing the basis and specific requirements for the issuance of closure orders can greatly impact the long-term recovery path for an area after the direct threat of an emergency has passed.  Many of the recovery resources that are available are unique and are somewhat tailored to the issue being responded to. As an example, existing regulations allow managers are allowed to hire staff for activities during an event, which authority is specifically provided as follows:

“Where in his judgment sufficient search, rescue, and protection forces are not otherwise available, the Secretary is authorized in cases of emergency to incur such expenses as may be necessary (a) in searching for and rescuing, or in cooperating in the search for and rescue of, persons lost on the public lands, (b) in protecting or rescuing, or in cooperating in the protection and rescue of, persons or animals endangered by an act of God, and (c) in transporting deceased persons or persons seriously ill or injured to the nearest place where interested parties or local authorities are located.”[11]

The ability to make emergency hires is further supplemented by the ability to address salaries in emergency situations, which is outlined in statute as follows:

“Employment and compensation of personnel to perform work occasioned by emergencies. Notwithstanding any other provision of law, persons may be employed or otherwise contracted with by the Secretary of the Interior to perform work occasioned by emergencies such as fire, flood, storm, or any other unavoidable cause and may be compensated at regular rates of pay without regard to Sundays, Federal holidays, and the regular workweek.”[12]

The expanded management authority provided for administrators  in response to an emergency situation continues in many instances well beyond active emergency response.  Congress has provided numerous issue specific funding streams for longer term response to challenges such as the FLAME act, which addressed funding for administrators to remediate areas impacted by fire after the direct impacts had passed. [13]Given the complexity of these management models, the Organizations must ask why analysis of possible impacts to these issue specific resources and funding streams from the Proposal is not addressed in the Proposal.  This would be a major concern if streamlining emergency and permit response was the issue to be addressed. This lack of information makes us think a streamlined response is not what the Proposal is seeking.

2(b). The Proposal should not be used as a substitute for NEPA compliance for permits or planning.

The Organizations vigorously assert that any streamlined or revised  authority to issue closure or access restriction should not be used as a replacement for the full NEPA process. The Organizations have concerns around  the relationship of existing NEPA regulations and requirements to the implementation of the entire Proposal.  Throughout the Proposal there are numerous references to compliance with NEPA being allowed. These are without weight if emergency provisions of NEPA are used for the compliance with NEPA for management decisions that are not a direct and significant threat to public safety or resources.  While there may be projects that could be performed with a categorical exclusion or using a streamlined NEPA process, such as those provided in the Healthy Forest Restoration Act, there are also projects that will be undertaken that will need an EA or EIS to undertake.

As noted in other portions of these comments, NEPA provides significant flexibility for managers to comply with its requirements as part of an emergency response effort. These short term answers should not be seen as a  manner to avoid addressing long term underlying problems with areas impacted by any issue.  An example of this concern is the fact that in many areas BLM resource management plans are simply horribly out of date. Given the unusual nature of the Proposal the Organizations are concerned that this new closure authority could be seen as a stop gap or method to avoid public engagement in RMP revisions.

3(a)(1). The Proposal seeks authority well outside permitted activities and emergency response.

While the Proposal asserts to be addressing emergency situations and permits,  often times the direction of the Proposal strays far from these issues and directly addresses the incorporation of emergency closures as part of a basic management model. The Proposal seeks to provide hugely broad authority on many instances and appears to be an attempt to simply avoid undertaking NEPA analysis and/or public engagement in a timely manner.

As we have outlined previously in these comments, many of our Organizations engage on a large amount of site specific remediation efforts, such as trash pickups or cleaning illegal shooting ranges making the need for both long and short term response to issues important to our concerns. These short term responses are done with a desire to address issues and impacts that managers are unwilling or unable to manage.  Long term resolution of these types of problems require NEPA analysis, coordinated responses from other government agencies, partners and wide public engagement.  If an illegal shooting area is closed, part of the decision process must include educating the public where legal shooting opportunities are provided.  Only this type of integrated management response will address issues and protect resources.

This desire to avoid NEPA by merely closing areas for reasons that remain unclear, is reflected as follows in the Proposal as follows:

“Under the proposed rule, the BLM would continue to establish closures and use restrictions after other management strategies and alternatives have been explored, including, but not limited to, increased law enforcement, cooperative efforts with local governments, engineering, education, and outreach.”[14]

We have to question how the above fact pattern could ever be involved in emergency response or closures for permitted activities. Many times responses such as those above are only provided with partners, meaning public engagement and good communication are necessary to truly resolve issues.  Clearly the above situation is addressing something that has occurred for years, which begs the question of why would a long-term closure be thought to be advantageous rather than pursing NEPA in a timely manner. This is why we are very concerned about the implementation of management responsibilities being used as  the basis for closures.

Not only is this management model going to erode good will for effective management responses it will put resources at risk as it could be much easier for manager to simply close an area and ignore the problem rather than undertake the NEPA necessary to resolve the issue.  Using an emergency closure in this manner would also appear to immediately violate NEPA requirements which are outlined as follows in the Code of Federal Regulations:

“§ 1508.25 Scope.  Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. The scope of an individual statement may depend on its relationships to other statements (§§ 1502.20 and 1508.28). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:

(i) Automatically trigger other actions which may require environmental impact statements.

(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.

(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.

(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.”[15]

The Organizations cannot envision where the fact pattern provided in the Proposal could be used in any other manner than to avoid timely NEPA analysis and public engagement on issues. This situation would be a per se violation of NEPA regulations and would represent a management direction that should be avoided moving forward rather than one that was highlighted. Rather than implementing a management responsibility, the provision is creating a management authority that simply does not exist.  Provisions such as this give us great concern regarding both possible due process concerns for permittees and public engagement requirements of numerous statutes being avoided.  The Organizations submit this concern can only be resolved with additional protections being added to the Proposal to avoid authority being used in this manner.

3(a)(2)  Multiple uses under new mandate must be protected from impacts from implementation of management responsibilities that is not defined.

The Proposal seeks to create an entirely new basis for the issuance of emergency closures and access restrictions, which the Proposal calls “the implementation of management responsibilities.” The Organizations are very concerned that the Proposal makes no reference to protecting multiple use mandates with the new “implementation of management responsibilities” authority provided for closures.  In direct contradiction to protecting existing legal obligations the Proposal  lays out situations where this new authority could be used to avoid legal obligations. The systemic avoidance of existing legal obligations is exemplified by the failure to define the term  “implementation of management responsibilities” in the Proposal.

Definitions of foundational terms such as this will be critical to implementation of the Proposal as there is no generally accepted definition for this term.  The need to define this foundational element of the Proposal is exemplified by the fact  that all existing definitions arguably related to the concept proposed appear to be related to human resources management. While the position of implementation manager may be somewhat defined in the employment field any of these job descriptions are highly industry sector driven and unrelated to the concept being proposed. The failure to define what could and could not be a management responsibility that would be implemented makes any substantive voicing of concerns around the application of the concept impossible. The hugely open ended nature of this concept is concerning as it could be used to close an area for endangered species issues or the construction of a massive wind or solar farm or a new open pit mine. None of these efforts will benefit recreation.  However this term is finally defined and applied, this definition must protect multiple uses, due process and public engagement of all interests relative to the implementation of responsibilities being undertaken. Implementation of management responsibilities should not be used to create management authority not provided for already or avoid full NEPA compliance.

The failure to define a foundational term such as the “implementation of management responsibilities” creates significant concerns as the concept that is being proposed is wide ranging at best.  The concept of implementing management responsibilities is very broad in nature and triggers concepts far in excess of the BLM merely hiring a contractor to perform services for them.  Courts reviewing these provisions have held that schemes  avoiding NEPA are invalid holding that:

“BLM may take steps to “maintain” plans under 43 C.F.R. § 1610.5-4, which permits maintenance as necessary to reflect minor changes in data. Such maintenance is limited to further refining or documenting a previously approved decision incorporated in the plan. Maintenance shall not result in expansion in the scope of resource uses or restrictions, or change the terms, conditions, and decisions of the approved plan. Maintenance is not considered a plan amendment and shall not require the formal public involvement and interagency coordination process described under §§ 1610.2 and 1610.3 of this title or the preparation of an environmental assessment or environmental impact statement. Maintenance shall be documented in plans and supporting records. 43 C.F.R. § 1610.5-4.”[16]

The Organizations are concerned that without a clearly defined scope of actions that could be taken within this new authority to implement management responsibilities, management will be undertaken without NEPA or public engagement. This will do nothing more than erode public trust in the management decisions, result in decisions that are not sustainable in the long run and immense amounts of litigation. In order to avoid these issue the definition must clearly resolve questions such as the following: What is the scope of limitations on this ability to designate this authority? Is it an emergency based authority? Is it a resource management plan, that could be decades out of date? Is it some other statutory authority, such as the endangered species act?

3(a)(3). The concept of “temporary” must be clearly defined in the Proposal.

The Organizations are VERY concerned that the window of time that the Proposal appear to be addressing and operating under are never addressed and appears to be highly flexible in challenges it seeks to address.  There is a significant difference between a temporary closure of any area for an afternoon long event and a large scale closure that might last many years.  Clearly identifying an expected life span of a management decision is critical to the success of the management decision.  This type of concern is frequently see in existing emergency response efforts. Often large closure areas are acceptable and advised in fire response when fires are not easily located or responses are being developed.  Often management efforts expand, closure areas adapt to expanding information.  Once fires are extinguished, closures of areas not impacted are often lifted. Even areas impacted are quickly reopened. Closures spanning many years after events and responses have ceased are opposed by the public.

Rather than addressing the need to tailor closures and management responses to the minimum amount needed to achieve management goals and needs the Proposal is open ended on a concern such as this. An example of this would be how the concept of “temporary” is discussed in the Proposal:

“the term ”temporary” should be understood in relation to the underlying condition for which the BLM determines that a closure or restriction is warranted; it would not impose any specific time limitations on a closure or restriction order issued under § 8364.1. Instead, a temporary closure or restriction order would generally remain in effect until the situation it is addressing has ended or abated, it expires by its own terms, or the BLM issues a superseding decision, which can include incorporating the terms of a closure or restriction order into a resource management plan in accordance with the regulations at 43 CFR part 1600.”[17]

The Organizations must express their immediate and complete opposition to any closure that would  remain open until any RMP was revised, as we are able to identify numerous BLM RMP that were completed in the late 1970s and early 1980s and have never been updated.  The possibility that a temporary closure could span more than 45 years is simply unacceptable in every way.  This would be a violation of numerous planning and NEPA requirements that have been addressed previously in these comments.

The conflict of this assertion with numerous internal provisions of the Proposal must be recognized and addressed.  The Organizations  must note that the Proposal asserts a benefit of providing the requirement of identifying starting and stopping dates for any order. As previously noted, this provision already exists. Additionally, identification of a start and end date for closure orders would imply this is based on an identifiable time on a calendar and not an unspecified point in the future when a management decision might occur. These types of open ended scope of temporary closures would also support our concerns regarding due process and public engagement in decision making in this process. While the Proposal generally asserts to be simply streamlining protection of the public for permits and emergencies, these provisions cause us to believe that a much larger review of the BLM planning process is sought to be undertaken.

3(b)(1).  The definition of an emergency should not be altered to allow political goals to be achieved without public engagement.

The relationship of the Proposal’s expanded closure and access restriction authority to other management initiatives is not addressed or analyzed despite a clear relationship between the Proposal and at least one other effort. Clearly identified boundaries of what the Proposal considers and emergency and what would not be an emergency or permitted event  would be  very helpful and again is not provided. One of the strengths of the emergency concept and authority to close lands for permitted events is a proximate threat to the public safety or resources that is unforeseen or for management of the event to avoid public safety or resource concerns.  As noted in the previous sections, the authority for this type of management action is scattered across numerous statutory provisions. Most do not have a definition of emergency as  these provisions are simply applying the commonly understood definition of terms and this has led to significant goodwill being developed in permitted and emergency closure situations.

While the Proposal does not specifically address a change in the definition of emergency, many of the provisions seem to open that discussion without addressing it directly. This is a concern that must be clarified in the comments as we are applying the generally understood definition of emergency in our comments, which  Merriam Webster defines an emergency as follows:

“1: an unforeseen combination of circumstances or the resulting state that calls for immediate action
2: an urgent need for assistance or relief”[18]

The Organizations would be vigorously opposed to any effort that resulted in the commonly understood definition  being applied more loosely or to further a management goal that has been determined without serious public engagement and NEPA review. Too often concepts such as emergencies or crisis or other terms evoking the possibility of catastrophic implications to public safety or resources are used to gain attention to issues. This does not mean these are emergencies as often these issues are entirely foreseeable and are not presenting an urgent risk to public safety or resources.

3(b)(2) A clear definition of an emergency is needed to maintain  programmatic boundaries between management efforts.

The need for a clear definition of emergency is needed to avoid overlap and possible conflict between various management efforts and programs. When there is a perception that a statutorily mandated management effort is not responding fast enough for certain political interests, assertions of the need for  emergency responses from other those interests are often made.  One interests dissatisfaction with the pace of any management effort should never create an emergency for other interests or managers. It has been our experience that frequently this type of artificial emergency type concern is expressed to local managers and the open ended expansion of these managers ability to declare emergencies and provide management responses will only catapult the use of this tactic. The challenges to local managers will be immediate as they are already horribly short staffed and unable to provide basic services in many situations.  Adding more issues for them to immediately address will only exponentially compound this shortfall rather than resolve it as decisions will not be well researched or understood.  The problems this will create in the long term will be immense.

Not only could  this open-ended emergency authority compound existing management problems, it could create entirely new problems and conflicts.  The need for a clear definition of emergency to avoid the possibility of expanded legal challenges to artificial emergency type restrictions is exemplified when the relationship of the new open ended emergency authority is linked to pending listings of species on the Endangered Species list, and our concerns expand exponently when listing of plants is addressed.  The myriad of legal complications that arise from the relationship of these two issues is simply overwhelming. The Proposals failure to recognize the possibility of expanding legal challenges in the alleged  attempt to reduce legal challenges to decisions is concerning to say the least. This would be a failure of one of the cornerstone benefits asserted to be coming from the Proposal and that failure to even discuss a concern like this is problematic.

For decades the US Fish and Wildlife Service has been bombarded with emergency petitions to list all kinds of species, and often these emergency listings fail to provide sufficient information to warrant further investigation.  As a result of this course of conduct, the Fish and Wildlife Service has provided extensive guidance on how to prepare a sufficient petition to list any species.[19] These emergency petition listings have spanned a few pages and seek to list dozens of species and are coupled with immense public pressure and artificial urgency to list. Other times these emergency listings are brought in response to opposition to a project that may be slated to enter the NEPA analysis phase of development or if a party has dissatisfaction with the conclusion of a NEPA effort.  Pressure to use this open-ended emergency authority could actually serve as a barrier to the NEPA processes functioning as required if the desire is to preempt or preclude the NEPA or regulatory process in other agencies. This type of ramification is a concern and again it is not discussed in the Proposal.

The possibility of legal challenges arises from the preemptive use of these new emergency powers is immediately present when these new emergency powers are sought to be used to force management decisions for species in areas that may not be habitat at all. We frequently see issues such as this around the management of modeled but unoccupied habitat for a species.  We are intimately familiar with several efforts to address modeled but unoccupied habitat as an emergency RMP revision after failures to designate this as primary habitat with the USFWS have failed.  In several instances the USFWS has provided good reasons why areas were not designated but those are never addressed in the effort to undertake RMP revisions.

This type of conflict between parallel decision making processes could be significant.  This tactic has become more problematic as the legal requirements for determinations for modeled but unoccupied habitat have significantly altered since the US Supreme Court’s unanimous 2018 decision in Weyerhaeuser  which held as follows:

“Only the “habitat” of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.”[20]

Decisions addressing critical habitat or the designation of modeled but unoccupied habitat should remain with the US Fish and Wildlife Service as the average land manager will lack both the resources and expertise to address issues such as this. Often questions such as this are brought to land managers because of the lack of expertise and resources on the issue and are raised with an immense amount of artificial urgency to protect the species and habitat. Land managers can make decisions based on this type of pressure and bad information.  The ability to provide emergency closures in this situation, which would not be legally sufficient will only expand legal challenges and result in resources being moved from actual challenges on the ground to support challenges to these decisions.

3(b)(3) Closure restrictions only compound our concerns regarding impacts of the new BLM  Conservation and Landscape Health Proposal (Docket # 1004-AE-92).

The systemic failure of the Proposal to accurately reflect current management authority, address possible challenges that could flow from proposed changes  and define even basic terms in the Proposal is concerning. This course of conduct leads us to the conclusion that there could be an ulterior motive for the Proposal. The relationship of the Proposal and the new BLM Conservation and Landscape Health Proposal(“CLHP”) which is again paving the way for large scale leasing of public lands through what we assume will be Natural Assets Companies(“NACs”) cannot be overlooked. The relationship of these efforts greatly expands our concerns despite the recent decision of the SEC to withdraw their proposed regulations for the NACs business model.[21] While some have heralded the SEC withdraw of the NACs regulations, this only expands our concerns as whatever the SEC was proposing in terms of requirements would have led to at least some type of oversight and transparency in the operations of NACs. As a result of the SEC withdraw, this business model is entirely unregulated or overseen.

The relationship of the CLHP which appears to provide the ability to create temporary closures to benefit lease holders and this proposal cannot be overlooked.  Regardless of the business model used, this concept remains problematic for our Organizations.  The scattered and uncoordinated manner that land management agencies have chosen to address this concept with only adds to our frustration with this idea. Clearly large scale discussions are occurring on the issue and no one has chosen to engage with existing partners to provide understanding of the NACs concept.  The Conservation Strategy Proposal fails to address impacts of possible closures in any substantive manner with the following provisions:

“The proposed rule would define the term ”casual use” so that, in reference to conservation leases, it would clarify that the existence of a conservation lease would not in and of itself preclude the public from accessing public lands for noncommercial activities such as recreation. Some public lands could be temporarily closed to public access for purposes authorized by conservation leases, such as restoration activities or habitat improvements. However, in general, public lands leased for conservation purposes under the proposed rule would continue to be open to public use.”[22]

The CLHP continues to outline the risks to public lands and sustainability it is seeking to remedy  as follows:

“Increased disturbances such as invasive species, drought, and wildfire, and increased habitat fragmentation are all impacting the health and resilience of public lands and making it more challenging to support multiple use and the sustained yield of renewable resources. Climate change is creating new risks and exacerbating existing vulnerabilities.”[23]

The overlap of these concerns, issues and proposed responses clearly could fall within the scope of this Proposal and support emergency declaration being issued cannot be overlooked. The Organizations have already participated in many collaboratives on a wide range of issues, including grouse, wolverine, wilderness designations and many others where issues and concerns such as those listed above are identified as emergency or crisis issues that has to be addressed. Often these assertions are made with no factual basis to support the assertion and despite the artificial urgency allegedly supporting the management action must be taken to prevent an emergency that was imminent, no calamity has befallen the area or species  when management action proposed is not take.  Our concerns around the possible large scale leasing of public lands to for profit entities with no background in land management are discussed in detail subsequently in these comments.  Providing detailed and meaningful definitions for foundational terms and concepts governing leasing and emergency declarations will be a significant step towards resolving our concerns on this issue.

4(a). The NEPA analysis for the Proposal is entirely lacking.

The growing history of systemic avoidance of NEPA requirements and public engagement from the BLM around planning efforts is deeply concerning as significant revisions to planning efforts have been proposed to be implemented with almost zero public comment or NEPA scrutiny. The Organizations are opposed to the promulgation of the Rules under the Proposal with simply the issuance of a categorical exclusion, as use of a categorical exclusion in this manner is exactly the type of NEPA compliance that must be avoided in the decision making process for public lands.  This BLM decision to adopt the lowest level of NEPA analysis for this large scale and complex effort  is clearly stated in the Proposal as follows:

“The BLM intends to apply the Departmental categorical exclusion at 43 CFR 46.210(i) to comply with NEPA.”[24]

This position is problematic for the Proposal, given the national scope and scale of the rulemaking, large number of partners and significant number of efforts that are clearly occurring concurrently with the Proposal.  This is a conflict with NEPA requirements that large projects receive heightened levels of NEPA analysis.  The Organizations vigorously assert that NEPA analysis of the Proposal must be significantly expanded as proceeding under just a categorical exclusion violates both NEPA and internal guidance documents of the BLM.

Not only is this irregular, it is in conflict with the NEPA compliance for most other major rule makings in the natural resources area. The Organizations experiences with the development of the USFS 2012 planning rule are highly relevant to our concerns about the lack of analysis being undertaken by the BLM.  The USFS sought to coordinate their efforts and undertake a complete EIS of the new rule and its impacts. Rather than consolidate all issues into a single location and coordinated efforts,  BLM has chosen to divide their planning efforts into numerous initiatives, each of which are being treated as a separate unrelated proposal.   The cumulative impact of these numerous isolated efforts must be reviewed and streamlined as most decisions will be made under multiple overlapping standards, making the relationships of these standards to each other critical in developing an effective decision making process.  An efficient effective process will also foster better relationships with partners, as partners will not be forced to attend repetitive meetings or discussions to address similar issues.

Any assertion the Proposal may continue forward with just a Categorical Exclusion and comply with NEPA planning requirements is immediately inconsistent with landscape target of the goals and objectives of the Proposal.  The Organizations believe the inherent conflict of the determination the Proposal may proceed with only a categorical exclusion is immediately apparent when the goals and objectives of the Proposal are compared to existing guidance documents from the BLM on the necessity to prepare an EIS.  This internal BLM guidance documents provide:

“11.8   Major Actions Requiring an EIS.

1. 1. An EIS level analysis should be completed when an action meets either of the two following criteria.

(1)     If the impacts of a proposed action are expected to be significant; or

(2)     In circumstances where a proposed action is directly related to another action(s), and cumulatively the effects of the actions taken together would be significant, even if the effects of the actions taken separately would not be significant,”^[25]

The Organizations submit that the landscape level goal of the Proposal can only be achieved through a significant change in landscape level planning despite the piecemeal and ad hoc method of development for the Proposal.   The lack of factual basis in the BLM position that the Proposal can move forward without an EIS level of analysis is clear when the cumulative impacts of all the separate planning efforts (Renewable Energy, species, recreation) are consolidated. What is being proposed is a landscape change to BLM operations, that in many ways fails to operate within existing statutory authority.

The Organizations also submit that the position of the BLM that only a Categorical Exclusion under NEPA is necessary to undertake a complete review of their planning rule is simply insulting to partners of all types.  It has been the Organizations experience that even small projects or permits, including club rides that occur on existing resources require at least an Environmental Assessment.  Many of the partners are involved in multi-year EA type analysis on a wide range of issues and will be working though the EA process on small projects, like trail reroutes or parking lots,  as BLM planning simply moves forward with a Categorical Exclusion on this landscape effort.  The Organizations submit these differences in NEPA application cannot be overlooked and will do little to foster support or partnership for planning efforts moving forward.

4(b) Meaningful public engagement  must be a priority and has been systemically avoided by the Agency.

Public engagement is a critical step in any land management decision making process that should not be overlooked and Proposal twists this concern into something that is blamed on the appeal process.  Public engagement as proposed would be negatively impacted as permitted events would now be lumped into emergency response.   This lack of clarity would create immense conflict around permitted events and emergency response. Meaningful public engagement will reduce this type of unintended impact. Public engagement is necessary to ensure that if an area is closed that other resources are not being directed towards the closures area.  Even within the recreational community, public engagement will ensure that local resources are not being allocated to the same planning area as the resources of a NAC.  Public engagement will also ensure that management partners are aware of efforts and proper alignment of partner efforts can be achieved. If there is a large project that actually  warrants a closure order the State wildlife managers probably should be aware of the closure to avoid the sale of site-specific hunting permits in the location.  This will only create conflict between partner managers if hunting licenses are sold and then hunters find out their licenses have been rendered valueless as access to hunting areas has been lost because managers did not talk to each other.

4(c) Community engagement strategy for BLM conflicts with the Proposal.

The management process outlined in the Proposal, which is significantly  reducing community engagement and avoiding NEPA requirements thru expanded emergency authority is directly conflicting with assertions from the BLM that they are seeking to engage with local communities. This vision is clearly laid out in the 2023 BLM Recreation Strategy as follows:

“Vision: By increasing and improving collaboration with community service providers, the BLM will help communities produce greater well-being and socioeconomic health and will deliver outstanding recreation experiences to visitors while sustaining the distinctive character of public lands recreation settings.”[26]

Again, the conflict of these two parallel efforts within the BLM creates significant concern for the Organizations.  The immediate conflict of these two efforts cannot be overstated and the distrust between managers and partners will only be expanded as partners will not believe any assertion of the desire to actually engage with them in the future. Actual engagement with communities is not achieved with mere words.

5. The relationship between Natural Asset Companies and existing partners and management decisions warrants meaningful discussions.

The Organizations must express frustrations with the Proposal, and several related proposals that appear to be laying the foundation for the large-scale leasing of federal public lands to for profit entities. Generally, this model appears to be associated with the operation of Natural Asset Companies (NACs).  This assumption is based on the limited information that the NYSE is providing on this issue at the landscape level and generalized SEC filings regarding this business model. Given the SEC filings and the fact the NYSE is restructuring for this effort, the effort is significant and there has been engagement with federal land managers as part of this effort.

It is highly frustrating that despite all the  managers  assertions of increased community engagement, the NACs concept of land management has had no meaningful coordinated engagement from anyone. Our representatives have noticed sudden interest in various BLM public meetings from fund managers, investment groups and others type of businesses that simply are not involved with public lands issues. When casual conversations have been attempted with fund managers on their attendance at the meeting, their answers have been evasive and sometimes confrontational.  When questions at these meetings are directed towards land managers on these interests being present at land management meeting, BLM staff has not been able to provide anything akin to a decent answer and some have merely walked away.   This poor engagement and general  direction of the management model outlined causes concerns for us immediately.  It is disappointing at best as our partnership with BLM managers has spanned decades and resulted in hundreds of millions of dollars in direct funding to BLM efforts. Despite this partnership, managers will simply not engage with any information of conceptual discussion, despite the fact this could be an idea we would support with a little meaningful engagement on basic questions.

This systemic avoidance of public engagement on what is clearly a major effort has created conflict that may be entirely unnecessary as often our concerns are foundational and start with how would our programs and partnerships be addressed in the NACs model of management. Without basic information we are forced to try and build understanding of the concept based on loosely aligned press articles, SEC filings and information on investment organizations webpages. This is a problem and certainly not a foundation of trust between interests that will be needed to achieve successful implementation of this concept.

The first basic concern we have is with the emergency closure proposal and relationship of the NACs operational model relates to the multiple use mandate. Many of the assertions found on the NYSE page outlining what NACs business model seeks to achieve is immediately problematic for the multiple use mandate. Per the NYSE webpage, a NAC is created to address the following goals and challenges: [27]

“To address the large and complex challenges of climate change and the transition to a more sustainable economy, NYSE and Intrinsic Exchange Group (IEG) are pioneering a new class of listed company based on nature and the benefits that nature provides (termed ecosystem services). NACs will capture the intrinsic and productive value of nature and provide a store of value based on the vital assets that underpin our entire economy and make life on earth possible. Examples of natural assets that could benefit from the NAC structure include natural landscapes such as forests, wetlands and coral reefs, as well as working lands such as farms.”

The summary of the NAC efforts on New York Stock Exchange website continues as follows:

“Intrinsic Exchange Group (IEG) is introducing a new type of company whose equity captures the value of natural assets and the ecosystem services they produce. Natural Asset Companies (NACs) are fundamentally different than traditional companies because they are chartered to protect, restore, and grow the natural assets under their management to foster healthy ecosystems.”

The Organizations are aware that the Securities and Exchange Commission has proposed general outlines for the administration of a NAC type business.  This Proposal may have been the largest and most coordinated effort to outline what a NAC is intended to achieve and how those goals would be achieved and how these goals would relate to other business activities.  As part of this effort, significant opposition to the concept was received by the SEC from what can only be summarized as a diverse range of interests.  As a result of this opposition, the SEC announced the withdrawal of their proposal.[28] While the SEC has withdrawn their proposed regulations for NACs, we believe the NACs effort will continue without the approval of the SEC.   Given the scale of these efforts, we don’t see this change being brief or not impacting federal lands

As we have noted, the BLM is working on several proposals that would be huge steps towards implementing a NACs model of management  and BLM engagement can only be summarized as bad.  Many of these BLM Proposals would grant broad new authority to implement management responsibilities in numerous ways from executing leases to authorizing closures. All of this is being done under the guise of streamlining authority for the benefit of recreation.  This is a conclusion we must disagree with. From the motorized recreational perspective, all this model of management does is allow DOI to declare a climate emergency, or ESA emergency or similar remote threat to public safety or resources and then turn over management to third parties that have clearly stated they have no interest in multiple use. These are for profit entities that BLM simply does not have the staff to begin to oversee or manage.  The complete lack of alignment with the goals of the NACs model causes concern for how a recreation project in any form could comply with what NYSE is stating as the goal for these businesses.

As we have noted previously, land manager engagement on these multiple coordinated planning efforts has been poor.  We have many basic questions around leasing of public lands, and would reassert our position that with some guidance and education of our interests the NACs model might be a management model that existing partners could support. We are again asking these questions in the hope of creating some type of meaningful dialog on this effort.  Some preliminary questions on this issue would include:

1. 1. What is the relationship of a NACs effort to the multiple use mandate and more specifically existing multiple use recreational decisions?  Multiple use concepts simply  do not seem to be the priority at all when you have the NYSE stating the mission is to increase capture of natural value and improve environmental, social and corporate governance  (“ESG”) scores for corporations. Candidly recreation is just not reflected in any businesses ESG scores and elevating corporate profitability to this level of use of public lands will be immensely problematic.
   2.  If there are discussions about the creation of a conservation credit program for partners, we would like to participate. The motorized community has been a partners with Federal land managers for decades.  Our efforts certainly could be the basis of conservation credits. Our concerns, outside protection of multiple uses and avoiding closures, initially would include:
      1. Does conservation include just wildlife or water and soil or air efforts as well?  We are aware that the US Fish and Wildlife Service has a conservation credit program in place already that works on private lands. What is the relationship between these efforts?
      2. How is the process of issuing credits going to be allocated?  It would appear that the decision has already been made that leasing is the mechanism for allocation of credits.  This model to allocation does not work for motorized efforts as a lease implies exclusive possession of the area by the leaseholder. Balancing multiple uses and conservation would be far more achievable if the relationship was based on permit rather than a lease as most permit holder do not have exclusive possession of the area subject to the permit.  Additionally leasing would result in another layer of paperwork to work through for our efforts and a lease like this for recreation would be completely uninsurable from our perspective.
      3. The credit allocation process needs to reflect all partners.  Just in the recreation world, we must believe that state wildlife agencies would want credits for their work. State Wildlife agencies work is foundational to any sustainability effort as they count animals and provide boots on the ground.  Legally most wildlife is under the primary jurisdiction of the state even on federal lands. If we are protecting a species, exact counts of population have always been provided by state wildlife agencies. These NACs credits could reduce the cost burden on the hunting and fishing community for licenses and equipment purchases.  This would be hugely beneficial to these partners as well.
      4. How would the programmatic nature of many efforts, such as state wildlife agencies and OHV/OSV registration programs be reflected and balanced with the project by project nature inherent in a lease?  Allocating credits based on projects might be a stop gap for some projects, like a site specific clean up but much of our effort is programmatic in nature.  Programmatically based credits probably should go back to the state for grant funded projects as most states prohibit grant recipients from profiting from the grants.  Clearly leases don’t align with this type of situation and individual partners will be poorly suited to sell conservation credits. Also the sale of credits will be easier and more efficient if the credits are bundled into groups for sale rather than being sold one by one.
      5. We are assuming that any leases or similar efforts would be subject to public bidding and other requirements like most government contracts? The ramifications of this question are significant in isolation.
      6. How will basic equity, payment of front end costs in developing leases and multiple uses be addressed in management of leases?  Clearly these leases will need archeological surveys, §7 consultations and community engagement before they are ever put out for public bid. IE if an area is leased to a third party but the crews the OHV program funds remain working in the area and many others how would this relationship be determined. Credits should be provided to the person doing the work and not just the lease holder.
      7. How will lease holder performance be monitored?  If a leaseholder closes an area without authority who deals with this?  Currently, BLM has no staff now to deal with unauthorized gates etc making any assertion of agency oversight problematic. For profit lease holders will see to maximize profits from the lease and public access is not going to align with that motivation. The idea of a local club having to sue a wall street leaseholder to reopen trails improperly closed is not appealing to us for many reasons.
      8. How does all the new efforts align with existing efforts and planning?  As outlined in these comments, the emergency authorities under NEPA or Healthy Forest Restoration Acts or similar grants of emergency authority to land managers should not be used for leasing to for profit companies. The implications to goodwill between managers and communities from emergency response efforts must be recognized and addressed.
      9. All this work would need a significant allocation of BLM staff to support NEPA and leaseholder monitoring and many other facets of large projects.   We are concerned this new management model will only exacerbate current staffing shortfalls within the agencies rather than resolve them.  Our programs provide significant funding for staff and NEPA and this funding really does not improve the staffing situation.  Why would a lease holder be any different? District rangers will still need to sign EA or Cat ex, cultural resource inventory will still need to occur, §7 consultation will still be needed, public meeting held for conservation efforts.  This will greatly expand staff demands and this is all going to be needed before a lease is ever signed. This will mean projects we would like to move will simply fall further down the list of priorities.
      10. These credits appear to be valuable and if we can obtain credits for the state OHV programs, our desire would be to resell the credit and then directly reinvest the proceeds in the program to support more work on the ground almost immediately.  The issuance of credits to NACs would provide profits to shareholders and that funding would probably have a much longer route back to reinvestment.
      11. How will any improvements be maintained in the long run once the lease has run out?  Leaseholder will have no reason to continue maintenance.

While we are aware that many of these questions are outside the scope of this Proposal when it is viewed in isolation, many of these concerns would be immediately if the relationship of NACs to federal lands was handled in a more coordinated and cohesive manner. As a result,  we are again asking these questions again in the hope of triggering meaningful public engagement.

6. Conclusions.

The above Organizations must vigorously  oppose the proposed  expansion of authority to issue temporary closures and restriction orders on lands managed by the BLM provided in the Proposal. The Proposal spans a mere five pages of the Federal Register and provides random unsupported assertions combining wildly disparate situations in an attempt to support the Proposal.  The Proposal asserts to be creating new management authority despite BLM having been provided this authority for decades. The Proposal then addresses unusual concerns around how this existing authority would be applied, such as asserting there are significant appeals of emergency closures currently. This is problematic for many reasons.

Our Opposition to the Proposal compounds when the Proposal then attempts to provide new basis for closures, based on concepts such as “implementation of management responsibilities” for unspecified periods of time. No discussion of what this term means or how it could be applied under existing regulations is provided at all. The Proposal also appears to create the possibility that emergency closures could span decades by allowing closure orders to exist until Resource Management Plans can be updated.

The Proposal is highly frustrating to existing partners as it appears to merely another step in the opening of BLM to large scale leasing of federal public lands to Natural Asset Companies without public engagement in any phase of this discussion.  The Proposal is clearly seeking to allow emergency closure orders to be issued in circumstances where there is little proximate and significant risk to the public simply to avoid NEPA analysis of leasing efforts. It is highly frustrating the Proposal seeks to apply provisions created for effective and efficient manager response to true on the ground emergencies in a manner that was never intended when this authority was created. We believe this effort will ultimately be unsuccessful and could actually result in significant negative impacts to resources. The use of emergency response provisions in this manner will create significant erosion of support for these provisions and expand distrust of the public in any action the agency takes.

The Organizations and our partners remain committed to providing high quality recreational resources on federal public lands while protecting resources and would welcome discussions on how to further these goals and objectives with new tools and resources. 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.
Executive Director CSA
Authorized Representative COHVCO

Chad Hixon
Executive Director
Trail Preservation Alliance

Marcus Trusty
President
CORE

Sandra Mitchell
Executive Director, IRC
Authorized Representative, ISSA

Clif Koontz
Executive Director
Ride with Respect

Matthew Giltner
Executive Director
Nevada Offroad Association

[1] Welcome to the Off-Highway Motor Vehicle Recreation (OHMVR) Division’s Grant Programs (ca.gov)

[2] Colorado summer program is outlined here https://cpw.state.co.us/Documents/Trails/OHVGrantProgramAwards.pdf Colorado winter program is outlined here.

[3] A summary of video of these efforts to date is provided here: OHV Final on Vimeo

[4] See, Dept of Interior, Bureau of Land Management, Temporary Closure and Restriction Orders; Proposed Rule; Federal Register / Vol. 88, No. 223 / Tuesday, November 21, 2023 / at pg. 81023(hereinafter referred to as the “Proposal listing”

[5] See, Generally 43 CFR Part 9210.

[6] See, 43 CFR §9212.2

[7] See, 43 CFR §4.1a

[8] See, Proposal Listing at pg. 81024

[9] 43 CFR §9212.3

[10] See, Proposal listing at pg. 81022

[11] See, 43 USC §1742

[12] See, 43 USC §1469

[13] See, 43 USC 1748(a)(PL 111-88)

[14] See, Proposal listing at pg. 81025

[15] 40 CFR §1508.25(a)

[16] Klamath Siskiyou Wildlands Center v. Broody, 468 F.3d 549 (9th Circuit 2006)

[17] See, Proposal listing at pg. 81025

[18] Emergency Definition & Meaning – Merriam-Webster accessed 1/16/24

[19]fws.gov/sites/default/files/documents/ESA-Public-Petition-Guidance.pdf

[20] See, Weyerhaeuser v. US Fish and Wildlife Service; 586 US ___(2018) pg. 9.

[21] Notice of Withdrawal of Proposed Rule Change to Amend the NYSE Listed Company Manual to Adopt Listing Standards for Natural Asset Companies (sec.gov)

[22] See, Proposal at pg. 19588

[23] See, Proposal at pg. 19585

[24] See, Proposal at pg. 81027

[25] www.blm.gov/wo/st/en/prog/planning/nepa/webguide/departmental_manual/516_dm_chapter_11.html#11-8

[26] See, DOI; Bureau of Land Management; connecting with communities – BLM National Recreation Strategy- 2023 at pg. 2. A complete copy of this document is available here: blm.gov/sites/default/files/docs/2023-08/Blueprint for 21st Century Outdoor Recreation508.pdf

[27] See, Natural Asset Companies (NACs) | NYSE  This website was accessed January 15, 2024.

[28] Notice of Withdrawal of Proposed Rule Change to Amend the NYSE Listed Company Manual to Adopt Listing Standards for Natural Asset Companies (sec.gov)

Dept of Interior
Director- BLM (HQ-630)
Room 5646
1849 C Street NW
Washington DC 20240

RE: Proposed Temporary closures and restriction orders

RIN: 1004-AE89

Dear Sirs:

Please accept this correspondence as the comments of the above Organizations in vigorous opposition to the proposed expansion of authority to issue temporary closures and restriction orders on lands managed by the BLM (“The Proposal”). The Proposal spans a mere five pages of the Federal Register providing a wealth of random unsupported assertions combining wildly disparate situations to support creating new management authority under the guise of streamlining authority managers have had for decades. The Proposal then addresses unusual concerns around existing authority is be applied, such as asserting there are significant appeals of emergency closures currently. This is problematic for many reasons. We simply are not aware of any appeals of closures during the course of the active emergency.  We are aware of numerous closure orders being challenged when the order is in place years after the emergency has ended or when emergency conditions were never present. These are different issues and should never be lumped into a single concern or issue.

While the Proposal asserts to be streamlining existing authority, the Proposal attempts to provide new basis for closures, based on undefined concepts such as “implementation of management responsibilities” for unspecified periods of time. No discussion of what these terms mean or how these changes could be applied under existing regulations is provided at all. The open-ended nature of the Proposal creates the possibility that emergency closures could span decades by allowing closure orders to exist until Resource Management Plans can be updated despite the basis being far from an emergency.

In isolation, this is deeply concerning as much of this information is inaccurate, proposed changes are not highlighted for the public to understand and comment meaningfully on. The Proposal is highly frustrating to existing partners as it appears to be merely another step in the opening of BLM to large-scale leasing of federal public lands to Natural Asset Companies without public engagement in any phase of this discussion.  The Proposal is clearly seeking to allow emergency closure orders to be issued in circumstances where there is little proximate and significant risk to the public simply to avoid NEPA analysis of leasing efforts. It is highly frustrating the Proposal seeks to apply provisions created for effective and efficient manager response to true on the ground emergencies in a manner that was never intended when this authority was created. We believe this effort will ultimately be unsuccessful and could actually result in significant negative impacts to resources. The use of emergency response provisions in this manner will create significant erosion of support for these provisions and expand distrust of the public in any action the agency takes.

1(a) 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 representing the OHV community seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport. CORE is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. The Idaho State Snowmobile Association (“ISSA”)is an organization dedicated to preserving, protecting, and promoting snowmobiling in the great state of Idaho. Our members may come from every corner of the state, but they all share one thing in common: their love for snowmobiling. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands most of which has occurred on BLM lands. Over 750 individuals have contributed money or volunteered time to the organization. Nevada Off Road Association (NVORA) is a non-profit Corporation created for and by offroad riders. NVORA was formed to specifically fill the void between the government managers and the rest of us who actively recreate in the Silver State. NVORA does this by maintaining a consistent, durable, and respected relationship with all stakeholders while facilitating a cooperative environment amongst our community. Collectively, TPA, NORA, CSA, CORE, IRC, RwR, ISSA, and COHVCO will be referred to as “The Organizations” for purposes of these comments.

Nationally, the OHV community provides between $200 to $300 million dollars into public lands management every year as a result of their voluntarily created OHV/OSV registration programs. As an example, the California OHV grant program provided $85 million in grants last year, and over the life of the program has funded more than $750 million in direct funding to public land managers.^[1] The benefits of the California OHV program are outlined as follows:

* Through our USFS partners, over 18,000 miles and 269,000 acres are available for OHV Recreation.

* Through our BLM partners, over 18,000 miles and 478,000 of acres are made available for OHV Recreation.

As another example, Colorado’s voluntary registration programs put almost $9m annually in grants back on public lands, and over the life of this program this has now provided more than $100m in funding for public lands to maintain and protect all forms of resources.^[2]  This Program funds more than 60 maintenance crews throughout the state in addition to equipping and often training them to.  Clearly efforts at the scale of these voluntarily created programs warrant inclusion in the discussion of possible closures for emergency response and conservation efforts as our involvement has addressed many emergency situations and restoration efforts following an emergency.  Most states that BLM owns lands in have similar programs that provide similarly high levels of funding but these programs extend well beyond just federal public lands and many states have OHV/OSV programs but have little to no federal public lands.

The failure to recognize partnerships like this and its benefits for recreation and conservation have resulted in erroneous and damaging statements in the Proposal.  This recognition of the benefits of multiple-use restoration efforts through partners in protecting the future of multiple uses in the area could have been highly valuable. As an example, the Colorado OHV program has contributed more than $1m over the last several years to repair the impacts of the East Troublesome fire which impacted more than 190k acres largely on BLM’s Kremmling FO and Arapahoe/Roosevelt NF.  Initial efforts targeted restoring basic access to the area to allow restoration efforts to even start and we anticipate planting many seedlings and monitoring the area to conclude these efforts.[3]  This is a type of project that commonly occurs within our OHV/OSV programs.  These are the type of projects we would be concerned about slowing down if there misplaced concerns around emergencies.  Why would a partnership such as this not be highlighted and targeted for future planning efforts?

The efforts of the motorized community extend well beyond landscape level efforts and often are targeting much smaller scale areas on an on-going basis through permits. Many of our local volunteer clubs work with land managers have executed “adopt a trail” or “adopt a road” type agreement for large portions of routes in planning areas.  These clubs often partner with managers on very small acre projects and efforts to address impacts of illegal shooting or dumping in areas with clean up days. Often these events are the basis of a temporary closure order from the BLM Office to allow for this effort to take place and these efforts have been highly effective in mitigating impacts of illegal activities.  Why would this need to be changed?

The Organizations and our members obtain hundreds of permits every year from BLM to hold events of all sizes.  These include many of the larger races such as King of the Hammers or Best in the Desert races noted in the Proposal but also include many tiny events where exclusive possession of public lands is not sought and in some situations events may not come into contact with BLM managed lands. These small events may include poker runs, educational events, site cleanups and many other efforts.  Our experiences have been diverse but we are not aware of any permitted events where there have been claims that the BLM lacked authority to timely close the area if the event posed a possible risk to public safety or resources. We are concerned that poor public engagement or expanded closure authority could be used as a tool to stop permitted events by those that may have opposed the event in the NEPA process.

1(b) The Proposals failure to analyze existing partnerships will result in damage to those relationships.

In our experiences, the assertions the Proposal is seeking to avoid delay in emergency public lands closures, which are based on situations that are unforeseen and a direct imminent risk to public safety or resources simply lack factual basis.  The Proposal asserts delays could result from possible appeals of temporary closure orders under processes put in place to protect due process and public engagement of interests that might be impacted by closures.  This simply has not been our experience. The Organizations are aware of objections and challenges to overly broad closure orders that persist for years following an emergency response but this is a different situation than is raised in the Proposal.   We are unable to understand how permitted events could be seen as a similar management situation to emergency response.

BLM has a huge number of provisions that allow for temporary closures and restrictions of public lands for a variety of reasons.  Understanding the nuisances of these existing authorities and response tools is critical to an effort to reform or streamline any management authority.  BLM consistently uses these authorities to respond to proximate and unforeseen risks to public safety or resources, which the issuance of closures in response to wildfires or floods. Avoiding impacts to the existing authority to issue this type of Order and the issue specific remedies that are provided for subsequent to the issuance of the emergency order would seem to warrant some type of discussion in the Proposal. These factors range from true emergency closures during the event to restoration efforts  that may be occurring in an area post event.  Rather than discussing the relationship of existing emergency provisions, the Proposal would appear to consolidate all permitted events and emergency management actions into a single category for the issuance of closure orders.  This consolidation of authority could create barriers for management rather than resolve them as requirements for meeting various statutory requirements for funding responses are not addressed.

The preservation of due process and public engagement of interests that may be impacted by any closures is critical to protecting multiple uses. The Proposal, when taken in conjunction with the recently released BLM Conservation Strategy, only increases our concerns for the protection of due process and public engagement for any interest that may be impacted in this process. This new Conservation Strategy created the concept of a conservation lease that could be issued in response to the climate emergency.  Assuming for the sake of these comments, there is a climate emergency the challenges sought to be addressed in the Conservation Strategy are neither unforeseen, or when compared to a fire or flood, or pose  the immediate and proximate risk to public safety or resources to warrant an expedited closure processes without public engagement.  While the Conservation Strategy addresses threats less proximate and unforeseen than a traditional emergency, the Proposal seems to allow a similar response from managers. When the Proposal is taken in concert with the Conservation Strategy, it appears the ending management situation would allow for closures of public lands by the leaseholder but fails to address how these closures would be vetted for NEPA compliance and other regulatory requirements. The current Proposal only expands this concern around due process and public engagement as the Proposal seeks to provide almost open-ended authority for managers to close areas until RMPs can be revised to address an issue.  The Organizations are unable to understand how an emergency risk could be tied to an artificial deadline of a revision of a planning document that maybe decades away would not be hugely problematic to implement on the ground.

Each of these existing models of management responses are the result of the highly variable nature of the proximity and foreseeability of each risk to the public or resources.  The proximity of risk to the public or resources and foreseeability of the risk are factors that must be balanced in any regulatory structure responding to this issue with due process protections and public engagement. The Organizations are supportive of greater transparency in public lands management and public access to public lands for a variety of reasons.  The Organizations vigorously assert the Proposal fails to strike the proper balance in protecting due process and public engagement in public lands management and moves towards closure orders being issued for management concerns that have not been subjected to NEPA or emergency closures being issued for issues that are neither unforeseen or a direct imminent risk to public safety or resources.

2(a)(1). Existing statutes and regulations allow the IBLA and the BLM Director to issue immediately applicable emergency closure orders.

Currently, BLM managers have wide ranging authority to issue temporary closure orders for public lands, including permitted events and emergency responses. The Organizations are not aware of concerns around the use of this authority when it is narrowly tailored and responding to a serious and direct threat to public safety or resources.  However, land managers must balance a variety of concerns in making these decisions.  The rational use of these closure authorities has created significant trust between managers and local communities when these communities face an emergency. Goodwill between managers and the public is immediate when BLM managers use their authority to protect public safety or resources by issuing closures in response to local conditions such as fires, floods and other unforeseen significant risks to that community. Closure orders are also issued for events and there is often support from the communities who feel engaged in the decision making for events and often are the direct recipients of the economic benefits of the events. The management goodwill from existing efforts will be negatively impacted if the Proposal is implemented, as there is no balance of competing interests even addressed and risks are simply not a direct or imminent risk to public safety or resources due to a localized condition.

Unlike existing regulations, the Proposal fails to balance between emergency closure authority and legally required due process and statutorily required public engagement in public lands management decision making.  This will massively erode public support for emergency response and other needed management actions. The Proposal is entirely unsuccessful in providing any credible basis to alter the current regulatory mechanisms addressing these issues.  Rather than addressing changes in a meaningful manner, the Proposal chooses to make random inaccurate assertions on various issues, including existing closure authority. The failure of the Proposal to address authority in a coordinated and thoughtful manner will create conflicts with communities as some will be forced to bear more burden of closures than others, who are facing a similar risk. Questions about why public land was closed in certain areas and not others to address a threat that is entirely unrelated to the public lands will not lead to anything but creating division between communities and managers.

The failure of the Proposal to accurately reflect current authority is immediate as it asserts managers lack of authority to issue immediately effective emergency closures.  As an example, the Proposal makes numerous references to public safety or resources being the basis for the request for expanded closure authority such as the following:

“However, aspects of 43 CFR 8364.1— such as the requirement to publish temporary closure and restriction orders in the Federal Register and the absence of a provision authorizing the BLM to issue temporary closure and restriction orders with immediate full force and effect—can hinder the BLM’s ability to respond effectively to exigencies that arise on public lands. Streamlining and modernizing the manner in which the BLM notifies the public about temporary closure and restriction orders, as well as providing authorized officers with the ability to issue such orders with immediate effectiveness, would allow the BLM to better perform its mission to responsibly manage public lands and protect public safety.”[4]

The conflict with this assertion and existing regulatory authority is immediate and immense as existing BLM regulations provide broad authority for emergency closures in a wide range of situations.[5] It has been our experience that emergency closure orders in relation to active fires are an overwhelming reason for the issuance of closure orders. We are not aware of any challenges being presented around the timely issuance of closure orders as part of an active fire response.  The lack of legal challenges is evidence of the overwhelming support the public has for these efforts.  The existing regulations specifically allow emergency closure authority in fire response efforts as follows:

“§9212.2 Fire prevention orders.  (a) To prevent wildfire or facilitate its suppression, an authorized officer may issue fire prevention orders that close entry to, or restrict uses of, designated public lands.

(b) Each fire prevention order shall:

(1) Identify the public lands, roads, trails or waterways that are closed to entry or restricted as to use;

(2) Specify the time during which the closure or restriction shall apply;

(3) Identify those persons who, without a written permit, are exempt from the closure or restrictions;

(4) Be posted in the local Bureau of Land Management office having jurisdiction over the lands to which the order applies; and

(5) Be posted at places near the closed or restricted area where it can be readily seen.”[6]

Contrary to the assertions in the Proposal that BLM managers lack authority to issue closure orders that are immediately effective, the above provisions provide broad authority for closures in response to an emergency that is unforeseen and which presents an imminent and direct threat to public safety or resources. We are unable to identify any emergency closure order issued for active fire response that has been appealed.  If this is a concern it should have been raised in the Proposal and addressed with greater detail.  While we are aware of challenges to closure orders being in place extended periods of time after the proximate and direct risk to public safety or resources has passed, this is a different management concern and outside the scope of what the Proposal is seeking to achieve.

The inaccuracy of the Proposal summary of this management situation expands as existing BLM regulations allow for expedited appeal process to review emergency closures and many other decisions at the BLM Director’s discretion. Current BLM regulations specifically provide this expedited authority as follows:

Ҥ 4.21 General provisions.

(a) Effect of decision pending appeal. Except as otherwise provided by law or other pertinent regulation:

(1) A decision will not be effective during the time in which a person adversely affected may file a notice of appeal; when the public interest requires, however, the Director or an Appeals Board may provide that a decision, or any part of a decision, shall be in full force and effective immediately;”[7]

The Organizations simply cannot envision a situation where an emergency closure for an issue that was truly unforeseen and a risk to the public or resources, such as a fire or flood, would not be subject to the use of the public interest exception provided. If this situation is actually arising, the remedy should be educating line officers on their ability to issue orders such as this and providing a clearly defined guidance document for local managers to understand the Director concerns about making a decision in this manner. The remedy simply is not new regulations. The Organizations are concerned that this waiver provision is not mentioned in the Proposal, and this creates the possibility the Proposal is seeking to address issues outside those discussed in the register notice.  The Organizations are not able to envision a situation where there is an actual emergency threatening the publics health safety and welfare or resources, where such a finding would be difficult to issue.   These Orders simply are not challenged or appealed to the best of our knowledge. If this type of an appeal is common, the Proposal should have provided this information and has not.

Our concerns around the basis and direction of the Proposal expand when the exceptions  for closure orders specifically addressed in the Proposal are reviewed. These concerns are unusual to say the least.  An example of the unusual nature of these concerns would be exemplified in the Proposal provisions such as the following:

“The proposed rule clarifies that specific groups can also be exempt from closure or restriction orders, such as Tribal members that may need to access an otherwise closed area for traditional or cultural uses.[8]”

While the Organizations vigorously support the right of any member of the public to access public lands, the Organizations are finding it difficult to understand why this provision would be included in the Proposal if true emergency closures were the management concern. We find it difficult to identify a cultural resource that would allow public access to an area that was subject to closure for a fire or flood response effort. Again, if this was a management concern of some scale, the Proposal should have addressed the scale and scope of this issue.

The questionable basis of the Proposal around closure orders increases as many existing regulations provide a far more broad authority to managers to allow access into restricted areas for fire response than is provided by the above provisions.  BLM fire closure regulations again are used as an example of managers authority to provide limited public access as these regulations provide broad authority on this issue as follows:

Ҥ9212.3 Permits.

(a) Permits may be issued to enter and use public lands designated in fire prevention orders when the authorized officer determines that the permitted activities will not conflict with the purpose of the order.

(b) Each permit shall specify:

(1) The public lands, roads, trails or waterways where entry or use is permitted;

(2) The person(s) to whom the permit applies;

(3) Activities that are permitted in the closed area;

(4) Fire prevention requirements with which the permittee shall comply; and

(5) An expiration date.

(c) An authorized officer may cancel a permit at any time.”[9]

This authority is commonly used to allow those impacted by fire and flood to gain access to areas to understand the scope and scale of impacts to them at the first opportunity the area is arguably safe for them to access the area. Could this authority be used to provide access to tribal members to access a cultural site? That answer is of course. We would be opposed to any assertion this authority has been used in a discriminatory manner or in a manner not recognizing cultural concerns.

Given the immensely broad existing authority to provide for site and issue specific flexibility in the administration of closure orders, the Organizations must question why cultural and tribal issues might be a concern.  The Proposal again fails to identify what significant concern is there for emergency closures and possible impacts to cultural and tribal needs?  As a result, the new provisions provide less authority for managers to address access issues during a true emergency as there can be an innumerable number of issues that could be addressed in an emergency outside cultural and tribal access. Clearly the provision is not here to protect tribal access to lands that are closed due to an emergency such as a fire or flood.

The Organizations are also aware that many tribal and cultural sites are sensitive in nature and release of information on the sites are often legally protected. The relationship of these protections and the new provisions should be a concern, as the use of this provision to allow access would entail the need to provide additional legal basis for the order being issued.  This is a hurdle to the effective management of emergency responses as current authority is broad in nature and managers would have no trouble outlining an order that allowed access to tribal members without raising concerns about confidential information on sites and other resources. Again, these types of concerns also make us question why emergency response and permitted issues were thought to be the proper basis for the scope of the Proposal.  Cultural and tribal access in areas closed for permitted events should have been addressed in the NEPA process, and concerns like this should not be allowed to intervene after the NEPA process has closed as this would create an immense burden on the permit holder and possibly create public safety issues or resource impacts for the permit. Rather than streamlining the issuance of orders provisions such as this will only make the process more complicated.

2(a)(2). Existing CEQ regulations allow alternative arrangements for NEPA compliance in emergency response situations.

Existing BLM regulations further allow for a streamlined and expedited NEPA compliance process for emergency response, which further avoids the concerns about a possible delay in response by managers in emergency situations.  Given these broad and encompassing provisions for emergency response, the Organizations are not able to understand a benefit from including permitted events in the scope of the Proposal.  This is another example where the Proposal is complicating rather than streamlining any response, as these provisions that are currently reasonably clear.  This streamlined authority is outlined in BLM NEPA handbook as follows:

“2.3 EMERGENCY ACTIONS In the event of an emergency situation, immediately take any action necessary to prevent or reduce risk to public health or safety, property, or important resources (516 DM 5). Thereafter, other than those actions that can be categorically excluded, the decision-maker must contact the BLM Washington Office, Division of Planning and Science Policy (WO-210) to outline subsequent actions. The CEQ regulations (40 CFR 1506.11) provide that in an emergency “alternative arrangements” may be established to comply with NEPA. Alternative arrangements do not waive the requirement to comply with NEPA, but establish an alternative means for compliance.

The CEQ regulations for alternative arrangements for dealing with such emergencies are limited to the actions necessary to control the immediate effects of the emergency. Other portions of the action, follow-up actions, and related or connected actions remain subject to normal NEPA requirements, so you must complete appropriate NEPA analysis before these actions may be taken (40 CFR 1506.11).

The “alternative arrangements” take the place of an EIS and only apply to Federal actions with significant environmental impacts (see section 7.3, Significance). If the proposed action does not have significant environmental effects, then the alternative arrangements at 40 CFR 1506.11 do not apply.

If you anticipate the proposed emergency response activity will have significant environmental effects, we recommend that you assess whether an existing NEPA analysis has been prepared (e.g., implementing preexisting plans) or whether there is an applicable exemption. For example, certain Federal Emergency Management Agency (FEMA) response actions are exempt from the NEPA (see the NEPA Handbook Web Guide).

Given the large amount of flexibility already provided for in existing regulations, the Organizations find any assertion of possible delay in the ability of managers to respond to emergencies difficult to support or understand. If there are concerns, the Proposal should have addressed them.  The large amount of latitude in emergency response currently provided also causes the Organizations concern as this clarity is based on emergency management concerns and not the closures that are related to permitted events that have gone through NEPA.  These are separate issues and should be dealt with separately even if they are both addressing possible concerns for public safety or resources.

2(a)(3) Existing regulations provide for identification of starting and ending times of emergency closure orders.

The systemic failure of the Proposal to accurately address existing closure powers and existing minimum requirements for issuance of an order using this authority is again displayed in the Proposal provisions addressing the specificity of timing requirements in the issuance of closure orders. Existing provisions are largely aligned on the need to specify the start and end date of any emergency or closure order.  These provisions are simply not addressed in the Proposal, which asserts the declaration of closure times is a benefit of the Proposal. This alleged benefit is outlined in the Proposal as follows:

“require that all orders specify the date and time that a temporary closure or restriction becomes effective and terminates;”[10]

As previously noted in these comments, 43 CFR §19212.3 specifically mandates process needed to issue closure and restriction orders. These regulations have specific provisions requiring the timing of the applicability of these restrictions for a beginning and end date.  Again, we are unable to align these existing highly specific regulations addressing the need for specific dates to start and stop area closures with an assertion that the Proposal will expand the clarity in the scope of closure dates as identified.

2(a)(4) Emergency provisions provide significant short and long term emergency response declarations

Accurately addressing the basis and specific requirements for the issuance of closure orders can greatly impact the long-term recovery path for an area after the direct threat of an emergency has passed.  Many of the recovery resources that are available are unique and are somewhat tailored to the issue being responded to. As an example, existing regulations allow managers are allowed to hire staff for activities during an event, which authority is specifically provided as follows:

“Where in his judgment sufficient search, rescue, and protection forces are not otherwise available, the Secretary is authorized in cases of emergency to incur such expenses as may be necessary (a) in searching for and rescuing, or in cooperating in the search for and rescue of, persons lost on the public lands, (b) in protecting or rescuing, or in cooperating in the protection and rescue of, persons or animals endangered by an act of God, and (c) in transporting deceased persons or persons seriously ill or injured to the nearest place where interested parties or local authorities are located.”[11]

The ability to make emergency hires is further supplemented by the ability to address salaries in emergency situations, which is outlined in statute as follows:

“Employment and compensation of personnel to perform work occasioned by emergencies. Notwithstanding any other provision of law, persons may be employed or otherwise contracted with by the Secretary of the Interior to perform work occasioned by emergencies such as fire, flood, storm, or any other unavoidable cause and may be compensated at regular rates of pay without regard to Sundays, Federal holidays, and the regular workweek.”[12]

The expanded management authority provided for administrators in response to an emergency situation continues in many instances well beyond active emergency response.  Congress has provided numerous issue specific funding streams for longer term response to challenges such as the FLAME act, which addressed funding for administrators to remediate areas impacted by fire after the direct impacts had passed. [13]Given the complexity of these management models, the Organizations must ask why analysis of possible impacts to these issue specific resources and funding streams from the Proposal is not addressed in the Proposal.  This would be a major concern if streamlining emergency and permit response was the issue to be addressed. This lack of information makes us think a streamlined response is not what the Proposal is seeking.

2(b). The Proposal should not be used as a substitute for NEPA compliance for permits or planning.

The Organizations vigorously assert that any streamlined or revised authority to issue closure or access restriction should not be used as a replacement for the full NEPA process. The Organizations have concerns around  the relationship of existing NEPA regulations and requirements to the implementation of the entire Proposal.  Throughout the Proposal there are numerous references to compliance with NEPA being allowed. These are without weight if emergency provisions of NEPA are used for the compliance with NEPA for management decisions that are not a direct and significant threat to public safety or resources.  While there may be projects that could be performed with a categorical exclusion or using a streamlined NEPA process, such as those provided in the Healthy Forest Restoration Act, there are also projects that will be undertaken that will need an EA or EIS to undertake.

As noted in other portions of these comments, NEPA provides significant flexibility for managers to comply with its requirements as part of an emergency response effort. These short term answers should not be seen as a  manner to avoid addressing long term underlying problems with areas impacted by any issue.  An example of this concern is the fact that in many areas BLM resource management plans are simply horribly out of date. Given the unusual nature of the Proposal the Organizations are concerned that this new closure authority could be seen as a stop gap or method to avoid public engagement in RMP revisions.

3(a)(1). The Proposal seeks authority well outside permitted activities and emergency response.

While the Proposal asserts to be addressing emergency situations and permits,  often times the direction of the Proposal strays far from these issues and directly addresses the incorporation of emergency closures as part of a basic management model. The Proposal seeks to provide hugely broad authority on many instances and appears to be an attempt to simply avoid undertaking NEPA analysis and/or public engagement in a timely manner.

As we have outlined previously in these comments, many of our Organizations engage on a large amount of site specific remediation efforts, such as trash pickups or cleaning illegal shooting ranges making the need for both long and short term response to issues important to our concerns. These short term responses are done with a desire to address issues and impacts that managers are unwilling or unable to manage.  Long term resolution of these types of problems require NEPA analysis, coordinated responses from other government agencies, partners and wide public engagement.  If an illegal shooting area is closed, part of the decision process must include educating the public where legal shooting opportunities are provided.  Only this type of integrated management response will address issues and protect resources.

This desire to avoid NEPA by merely closing areas for reasons that remain unclear, is reflected as follows in the Proposal as follows:

“Under the proposed rule, the BLM would continue to establish closures and use restrictions after other management strategies and alternatives have been explored, including, but not limited to, increased law enforcement, cooperative efforts with local governments, engineering, education, and outreach.”[14]

We have to question how the above fact pattern could ever be involved in emergency response or closures for permitted activities. Many times responses such as those above are only provided with partners, meaning public engagement and good communication are necessary to truly resolve issues.  Clearly the above situation is addressing something that has occurred for years, which begs the question of why would a long-term closure be thought to be advantageous rather than pursing NEPA in a timely manner. This is why we are very concerned about the implementation of management responsibilities being used as  the basis for closures.

Not only is this management model going to erode good will for effective management responses it will put resources at risk as it could be much easier for manager to simply close an area and ignore the problem rather than undertake the NEPA necessary to resolve the issue.  Using an emergency closure in this manner would also appear to immediately violate NEPA requirements which are outlined as follows in the Code of Federal Regulations:

“§ 1508.25 Scope.  Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. The scope of an individual statement may depend on its relationships to other statements (§§ 1502.20 and 1508.28). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:

(i) Automatically trigger other actions which may require environmental impact statements.

(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.

(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.

(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.”[15]

The Organizations cannot envision where the fact pattern provided in the Proposal could be used in any other manner than to avoid timely NEPA analysis and public engagement on issues. This situation would be a per se violation of NEPA regulations and would represent a management direction that should be avoided moving forward rather than one that was highlighted. Rather than implementing a management responsibility, the provision is creating a management authority that simply does not exist.  Provisions such as this give us great concern regarding both possible due process concerns for permittees and public engagement requirements of numerous statutes being avoided.  The Organizations submit this concern can only be resolved with additional protections being added to the Proposal to avoid authority being used in this manner.

3(a)(2)  Multiple uses under new mandate must be protected from impacts from implementation of management responsibilities that is not defined.

The Proposal seeks to create an entirely new basis for the issuance of emergency closures and access restrictions, which the Proposal calls “the implementation of management responsibilities.” The Organizations are very concerned that the Proposal makes no reference to protecting multiple use mandates with the new “implementation of management responsibilities” authority provided for closures.  In direct contradiction to protecting existing legal obligations the Proposal  lays out situations where this new authority could be used to avoid legal obligations. The systemic avoidance of existing legal obligations is exemplified by the failure to define the term  “implementation of management responsibilities” in the Proposal.

Definitions of foundational terms such as this will be critical to implementation of the Proposal as there is no generally accepted definition for this term.  The need to define this foundational element of the Proposal is exemplified by the fact  that all existing definitions arguably related to the concept proposed appear to be related to human resources management. While the position of implementation manager may be somewhat defined in the employment field any of these job descriptions are highly industry sector driven and unrelated to the concept being proposed. The failure to define what could and could not be a management responsibility that would be implemented makes any substantive voicing of concerns around the application of the concept impossible. The hugely open ended nature of this concept is concerning as it could be used to close an area for endangered species issues or the construction of a massive wind or solar farm or a new open pit mine. None of these efforts will benefit recreation.  However this term is finally defined and applied, this definition must protect multiple uses, due process and public engagement of all interests relative to the implementation of responsibilities being undertaken. Implementation of management responsibilities should not be used to create management authority not provided for already or avoid full NEPA compliance.

The failure to define a foundational term such as the “implementation of management responsibilities” creates significant concerns as the concept that is being proposed is wide ranging at best.  The concept of implementing management responsibilities is very broad in nature and triggers concepts far in excess of the BLM merely hiring a contractor to perform services for them.  Courts reviewing these provisions have held that schemes  avoiding NEPA are invalid holding that:

“BLM may take steps to “maintain” plans under 43 C.F.R. § 1610.5-4, which permits maintenance as necessary to reflect minor changes in data. Such maintenance is limited to further refining or documenting a previously approved decision incorporated in the plan. Maintenance shall not result in expansion in the scope of resource uses or restrictions, or change the terms, conditions, and decisions of the approved plan. Maintenance is not considered a plan amendment and shall not require the formal public involvement and interagency coordination process described under §§ 1610.2 and 1610.3 of this title or the preparation of an environmental assessment or environmental impact statement. Maintenance shall be documented in plans and supporting records. 43 C.F.R. § 1610.5-4.”[16]

The Organizations are concerned that without a clearly defined scope of actions that could be taken within this new authority to implement management responsibilities, management will be undertaken without NEPA or public engagement. This will do nothing more than erode public trust in the management decisions, result in decisions that are not sustainable in the long run and immense amounts of litigation. In order to avoid these issue the definition must clearly resolve questions such as the following: What is the scope of limitations on this ability to designate this authority? Is it an emergency based authority? Is it a resource management plan, that could be decades out of date? Is it some other statutory authority, such as the endangered species act?

3(a)(3). The concept of “temporary” must be clearly defined in the Proposal.

The Organizations are VERY concerned that the window of time that the Proposal appear to be addressing and operating under are never addressed and appears to be highly flexible in challenges it seeks to address.  There is a significant difference between a temporary closure of any area for an afternoon long event and a large scale closure that might last many years.  Clearly identifying an expected life span of a management decision is critical to the success of the management decision.  This type of concern is frequently see in existing emergency response efforts. Often large closure areas are acceptable and advised in fire response when fires are not easily located or responses are being developed.  Often management efforts expand, closure areas adapt to expanding information.  Once fires are extinguished, closures of areas not impacted are often lifted. Even areas impacted are quickly reopened. Closures spanning many years after events and responses have ceased are opposed by the public.

Rather than addressing the need to tailor closures and management responses to the minimum amount needed to achieve management goals and needs the Proposal is open ended on a concern such as this. An example of this would be how the concept of “temporary” is discussed in the Proposal:

“the term ‘‘temporary’’ should be understood in relation to the underlying condition for which the BLM determines that a closure or restriction is warranted; it would not impose any specific time limitations on a closure or restriction order issued under § 8364.1. Instead, a temporary closure or restriction order would generally remain in effect until the situation it is addressing has ended or abated, it expires by its own terms, or the BLM issues a superseding decision, which can include incorporating the terms of a closure or restriction order into a resource management plan in accordance with the regulations at 43 CFR part 1600.”[17]

The Organizations must express their immediate and complete opposition to any closure that would remain open until any RMP was revised, as we are able to identify numerous BLM RMP that were completed in the late 1970s and early 1980s and have never been updated.  The possibility that a temporary closure could span more than 45 years is simply unacceptable in every way.  This would be a violation of numerous planning and NEPA requirements that have been addressed previously in these comments.

The conflict of this assertion with numerous internal provisions of the Proposal must be recognized and addressed.  The Organizations must note that the Proposal asserts a benefit of providing the requirement of identifying starting and stopping dates for any order. As previously noted, this provision already exists. Additionally, identification of a start and end date for closure orders would imply this is based on an identifiable time on a calendar and not an unspecified point in the future when a management decision might occur. These types of open ended scope of temporary closures would also support our concerns regarding due process and public engagement in decision making in this process. While the Proposal generally asserts to be simply streamlining protection of the public for permits and emergencies, these provisions cause us to believe that a much larger review of the BLM planning process is sought to be undertaken.

3(b)(1).  The definition of an emergency should not be altered to allow political goals to be achieved without public engagement.

The relationship of the Proposal’s expanded closure and access restriction authority to other management initiatives is not addressed or analyzed despite a clear relationship between the Proposal and at least one other effort. Clearly identified boundaries of what the Proposal considers and emergency and what would not be an emergency or permitted event would be very helpful and again is not provided. One of the strengths of the emergency concept and authority to close lands for permitted events is a proximate threat to the public safety or resources that is unforeseen or for management of the event to avoid public safety or resource concerns.  As noted in the previous sections, the authority for this type of management action is scattered across numerous statutory provisions. Most do not have a definition of emergency as these provisions are simply applying the commonly understood definition of terms and this has led to significant goodwill being developed in permitted and emergency closure situations.

While the Proposal does not specifically address a change in the definition of emergency, many of the provisions seem to open that discussion without addressing it directly. This is a concern that must be clarified in the comments as we are applying the generally understood definition of emergency in our comments, which  Merriam Webster defines an emergency as follows:

“1: an unforeseen combination of circumstances or the resulting state that calls for immediate action

2: an urgent need for assistance or relief”[18]

The Organizations would be vigorously opposed to any effort that resulted in the commonly understood definition being applied more loosely or to further a management goal that has been determined without serious public engagement and NEPA review. Too often concepts such as emergencies or crisis or other terms evoking the possibility of catastrophic implications to public safety or resources are used to gain attention to issues. This does not mean these are emergencies as often these issues are entirely foreseeable and are not presenting an urgent risk to public safety or resources.

3(b)(2) A clear definition of an emergency is needed to maintain programmatic boundaries between management efforts.

The need for a clear definition of emergency is needed to avoid overlap and possible conflict between various management efforts and programs. When there is a perception that a statutorily mandated management effort is not responding fast enough for certain political interests, assertions of the need for emergency responses from other those interests are often made.  One interests dissatisfaction with the pace of any management effort should never create an emergency for other interests or managers. It has been our experience that frequently this type of artificial emergency type concern is expressed to local managers and the open ended expansion of these managers ability to declare emergencies and provide management responses will only catapult the use of this tactic. The challenges to local managers will be immediate as they are already horribly short staffed and unable to provide basic services in many situations.  Adding more issues for them to immediately address will only exponentially compound this shortfall rather than resolve it as decisions will not be well researched or understood.  The problems this will create in the long term will be immense.

Not only could this open-ended emergency authority compound existing management problems, it could create entirely new problems and conflicts.  The need for a clear definition of emergency to avoid the possibility of expanded legal challenges to artificial emergency type restrictions is exemplified when the relationship of the new open ended emergency authority is linked to pending listings of species on the Endangered Species list, and our concerns expand exponently when listing of plants is addressed.  The myriad of legal complications that arise from the relationship of these two issues is simply overwhelming. The Proposals failure to recognize the possibility of expanding legal challenges in the alleged attempt to reduce legal challenges to decisions is concerning to say the least. This would be a failure of one of the cornerstone benefits asserted to be coming from the Proposal and that failure to even discuss a concern like this is problematic.

For decades the US Fish and Wildlife Service has been bombarded with emergency petitions to list all kinds of species, and often these emergency listings fail to provide sufficient information to warrant further investigation.  As a result of this course of conduct, the Fish and Wildlife Service has provided extensive guidance on how to prepare a sufficient petition to list any species.[19] These emergency petition listings have spanned a few pages and seek to list dozens of species and are coupled with immense public pressure and artificial urgency to list. Other times these emergency listings are brought in response to opposition to a project that may be slated to enter the NEPA analysis phase of development or if a party has dissatisfaction with the conclusion of a NEPA effort.  Pressure to use this open-ended emergency authority could actually serve as a barrier to the NEPA processes functioning as required if the desire is to preempt or preclude the NEPA or regulatory process in other agencies. This type of ramification is a concern and again it is not discussed in the Proposal.

The possibility of legal challenges arises from the preemptive use of these new emergency powers is immediately present when these new emergency powers are sought to be used to force management decisions for species in areas that may not be habitat at all. We frequently see issues such as this around the management of modeled but unoccupied habitat for a species.  We are intimately familiar with several efforts to address modeled but unoccupied habitat as an emergency RMP revision after failures to designate this as primary habitat with the USFWS have failed.  In several instances the USFWS has provided good reasons why areas were not designated but those are never addressed in the effort to undertake RMP revisions.

This type of conflict between parallel decision making processes could be significant.  This tactic has become more problematic as the legal requirements for determinations for modeled but unoccupied habitat have significantly altered since the US Supreme Court’s unanimous 2018 decision in Weyerhaeuser  which held as follows:

“Only the “habitat” of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.”[20]

Decisions addressing critical habitat or the designation of modeled but unoccupied habitat should remain with the US Fish and Wildlife Service as the average land manager will lack both the resources and expertise to address issues such as this. Often questions such as this are brought to land managers because of the lack of expertise and resources on the issue and are raised with an immense amount of artificial urgency to protect the species and habitat. Land managers can make decisions based on this type of pressure and bad information.  The ability to provide emergency closures in this situation, which would not be legally sufficient will only expand legal challenges and result in resources being moved from actual challenges on the ground to support challenges to these decisions.

3(b)(3) Closure restrictions only compound our concerns regarding impacts of the new BLM  Conservation and Landscape Health Proposal (Docket # 1004-AE-92).

The systemic failure of the Proposal to accurately reflect current management authority, address possible challenges that could flow from proposed changes and define even basic terms in the Proposal is concerning. This course of conduct leads us to the conclusion that there could be an ulterior motive for the Proposal. The relationship of the Proposal and the new BLM Conservation and Landscape Health Proposal(“CLHP”) which is again paving the way for large scale leasing of public lands through what we assume will be Natural Assets Companies(“NACs”) cannot be overlooked. The relationship of these efforts greatly expands our concerns despite the recent decision of the SEC to withdraw their proposed regulations for the NACs business model.[21] While some have heralded the SEC withdraw of the NACs regulations, this only expands our concerns as whatever the SEC was proposing in terms of requirements would have led to at least some type of oversight and transparency in the operations of NACs. As a result of the SEC withdraw, this business model is entirely unregulated or overseen.

The relationship of the CLHP which appears to provide the ability to create temporary closures to benefit lease holders and this proposal cannot be overlooked.  Regardless of the business model used, this concept remains problematic for our Organizations.  The scattered and uncoordinated manner that land management agencies have chosen to address this concept with only adds to our frustration with this idea. Clearly large scale discussions are occurring on the issue and no one has chosen to engage with existing partners to provide understanding of the NACs concept.  The Conservation Strategy Proposal fails to address impacts of possible closures in any substantive manner with the following provisions:

“The proposed rule would define the term ‘‘casual use’’ so that, in reference to conservation leases, it would clarify that the existence of a conservation lease would not in and of itself preclude the public from accessing public lands for noncommercial activities such as recreation. Some public lands could be temporarily closed to public access for purposes authorized by conservation leases, such as restoration activities or habitat improvements. However, in general, public lands leased for conservation purposes under the proposed rule would continue to be open to public use.”[22]

The CLHP continues to outline the risks to public lands and sustainability it is seeking to remedy  as follows:

“Increased disturbances such as invasive species, drought, and wildfire, and increased habitat fragmentation are all impacting the health and resilience of public lands and making it more challenging to support multiple use and the sustained yield of renewable resources. Climate change is creating new risks and exacerbating existing vulnerabilities.”[23]

The overlap of these concerns, issues and proposed responses clearly could fall within the scope of this Proposal and support emergency declaration being issued cannot be overlooked. The Organizations have already participated in many collaboratives on a wide range of issues, including grouse, wolverine, wilderness designations and many others where issues and concerns such as those listed above are identified as emergency or crisis issues that has to be addressed. Often these assertions are made with no factual basis to support the assertion and despite the artificial urgency allegedly supporting the management action must be taken to prevent an emergency that was imminent, no calamity has befallen the area or species when management action proposed is not take.  Our concerns around the possible large scale leasing of public lands to for profit entities with no background in land management are discussed in detail subsequently in these comments.  Providing detailed and meaningful definitions for foundational terms and concepts governing leasing and emergency declarations will be a significant step towards resolving our concerns on this issue.

4(a). The NEPA analysis for the Proposal is entirely lacking.

The growing history of systemic avoidance of NEPA requirements and public engagement from the BLM around planning efforts is deeply concerning as significant revisions to planning efforts have been proposed to be implemented with almost zero public comment or NEPA scrutiny. The Organizations are opposed to the promulgation of the Rules under the Proposal with simply the issuance of a categorical exclusion, as use of a categorical exclusion in this manner is exactly the type of NEPA compliance that must be avoided in the decision making process for public lands.  This BLM decision to adopt the lowest level of NEPA analysis for this large scale and complex effort  is clearly stated in the Proposal as follows:

“The BLM intends to apply the Departmental categorical exclusion at 43 CFR 46.210(i) to comply with NEPA.”[24]

This position is problematic for the Proposal, given the national scope and scale of the rulemaking, large number of partners and significant number of efforts that are clearly occurring concurrently with the Proposal.  This is a conflict with NEPA requirements that large projects receive heightened levels of NEPA analysis.  The Organizations vigorously assert that NEPA analysis of the Proposal must be significantly expanded as proceeding under just a categorical exclusion violates both NEPA and internal guidance documents of the BLM.

Not only is this irregular, it is in conflict with the NEPA compliance for most other major rule makings in the natural resources area. The Organizations experiences with the development of the USFS 2012 planning rule are highly relevant to our concerns about the lack of analysis being undertaken by the BLM.  The USFS sought to coordinate their efforts and undertake a complete EIS of the new rule and its impacts. Rather than consolidate all issues into a single location and coordinated efforts,  BLM has chosen to divide their planning efforts into numerous initiatives, each of which are being treated as a separate unrelated proposal.   The cumulative impact of these numerous isolated efforts must be reviewed and streamlined as most decisions will be made under multiple overlapping standards, making the relationships of these standards to each other critical in developing an effective decision making process.  An efficient effective process will also foster better relationships with partners, as partners will not be forced to attend repetitive meetings or discussions to address similar issues.

Any assertion the Proposal may continue forward with just a Categorical Exclusion and comply with NEPA planning requirements is immediately inconsistent with landscape target of the goals and objectives of the Proposal.  The Organizations believe the inherent conflict of the determination the Proposal may proceed with only a categorical exclusion is immediately apparent when the goals and objectives of the Proposal are compared to existing guidance documents from the BLM on the necessity to prepare an EIS.  This internal BLM guidance documents provide:

“11.8   Major Actions Requiring an EIS.

1. 1. An EIS level analysis should be completed when an action meets either of the two following criteria.

(1)     If the impacts of a proposed action are expected to be significant; or

(2)     In circumstances where a proposed action is directly related to another action(s), and cumulatively the effects of the actions taken together would be significant, even if the effects of the actions taken separately would not be significant,”^[25]

The Organizations submit that the landscape level goal of the Proposal can only be achieved through a significant change in landscape level planning despite the piecemeal and ad hoc method of development for the Proposal.   The lack of factual basis in the BLM position that the Proposal can move forward without an EIS level of analysis is clear when the cumulative impacts of all the separate planning efforts (Renewable Energy, species, recreation) are consolidated. What is being proposed is a landscape change to BLM operations, that in many ways fails to operate within existing statutory authority.

The Organizations also submit that the position of the BLM that only a Categorical Exclusion under NEPA is necessary to undertake a complete review of their planning rule is simply insulting to partners of all types.  It has been the Organizations experience that even small projects or permits, including club rides that occur on existing resources require at least an Environmental Assessment.  Many of the partners are involved in multi-year EA type analysis on a wide range of issues and will be working though the EA process on small projects, like trail reroutes or parking lots,  as BLM planning simply moves forward with a Categorical Exclusion on this landscape effort.  The Organizations submit these differences in NEPA application cannot be overlooked and will do little to foster support or partnership for planning efforts moving forward.

4(b) Meaningful public engagement must be a priority and has been systemically avoided by the Agency.

Public engagement is a critical step in any land management decision making process that should not be overlooked and Proposal twists this concern into something that is blamed on the appeal process.  Public engagement as proposed would be negatively impacted as permitted events would now be lumped into emergency response.   This lack of clarity would create immense conflict around permitted events and emergency response. Meaningful public engagement will reduce this type of unintended impact. Public engagement is necessary to ensure that if an area is closed that other resources are not being directed towards the closures area.  Even within the recreational community, public engagement will ensure that local resources are not being allocated to the same planning area as the resources of a NAC.  Public engagement will also ensure that management partners are aware of efforts and proper alignment of partner efforts can be achieved. If there is a large project that actually  warrants a closure order the State wildlife managers probably should be aware of the closure to avoid the sale of site-specific hunting permits in the location.  This will only create conflict between partner managers if hunting licenses are sold and then hunters find out their licenses have been rendered valueless as access to hunting areas has been lost because managers did not talk to each other.

4(c) Community engagement strategy for BLM conflicts with the Proposal.

The management process outlined in the Proposal, which is significantly reducing community engagement and avoiding NEPA requirements thru expanded emergency authority is directly conflicting with assertions from the BLM that they are seeking to engage with local communities. This vision is clearly laid out in the 2023 BLM Recreation Strategy as follows:

“Vision: By increasing and improving collaboration with community service providers, the BLM will help communities produce greater well-being and socioeconomic health and will deliver outstanding recreation experiences to visitors while sustaining the distinctive character of public lands recreation settings.”[26]

Again, the conflict of these two parallel efforts within the BLM creates significant concern for the Organizations.  The immediate conflict of these two efforts cannot be overstated and the distrust between managers and partners will only be expanded as partners will not believe any assertion of the desire to actually engage with them in the future. Actual engagement with communities is not achieved with mere words.

5. The relationship between Natural Asset Companies and existing partners and management decisions warrants meaningful discussions.

The Organizations must express frustrations with the Proposal, and several related proposals that appear to be laying the foundation for the large-scale leasing of federal public lands to for profit entities. Generally, this model appears to be associated with the operation of Natural Asset Companies (NACs).  This assumption is based on the limited information that the NYSE is providing on this issue at the landscape level and generalized SEC filings regarding this business model. Given the SEC filings and the fact the NYSE is restructuring for this effort, the effort is significant and there has been engagement with federal land managers as part of this effort.

It is highly frustrating that despite all the managers assertions of increased community engagement, the NACs concept of land management has had no meaningful coordinated engagement from anyone. Our representatives have noticed sudden interest in various BLM public meetings from fund managers, investment groups and others type of businesses that simply are not involved with public lands issues. When casual conversations have been attempted with fund managers on their attendance at the meeting, their answers have been evasive and sometimes confrontational.  When questions at these meetings are directed towards land managers on these interests being present at land management meeting, BLM staff has not been able to provide anything akin to a decent answer and some have merely walked away.   This poor engagement and general direction of the management model outlined causes concerns for us immediately.  It is disappointing at best as our partnership with BLM managers has spanned decades and resulted in hundreds of millions of dollars in direct funding to BLM efforts. Despite this partnership, managers will simply not engage with any information of conceptual discussion, despite the fact this could be an idea we would support with a little meaningful engagement on basic questions.

This systemic avoidance of public engagement on what is clearly a major effort has created conflict that may be entirely unnecessary as often our concerns are foundational and start with how would our programs and partnerships be addressed in the NACs model of management. Without basic information we are forced to try and build understanding of the concept based on loosely aligned press articles, SEC filings and information on investment organizations webpages. This is a problem and certainly not a foundation of trust between interests that will be needed to achieve successful implementation of this concept.

The first basic concern we have is with the emergency closure proposal and relationship of the NACs operational model relates to the multiple use mandate. Many of the assertions found on the NYSE page outlining what NACs business model seeks to achieve is immediately problematic for the multiple use mandate. Per the NYSE webpage, a NAC is created to address the following goals and challenges: [27]

“To address the large and complex challenges of climate change and the transition to a more sustainable economy, NYSE and Intrinsic Exchange Group (IEG) are pioneering a new class of listed company based on nature and the benefits that nature provides (termed ecosystem services). NACs will capture the intrinsic and productive value of nature and provide a store of value based on the vital assets that underpin our entire economy and make life on earth possible. Examples of natural assets that could benefit from the NAC structure include natural landscapes such as forests, wetlands and coral reefs, as well as working lands such as farms.”

The summary of the NAC efforts on New York Stock Exchange website continues as follows:

“Intrinsic Exchange Group (IEG) is introducing a new type of company whose equity captures the value of natural assets and the ecosystem services they produce. Natural Asset Companies (NACs) are fundamentally different than traditional companies because they are chartered to protect, restore, and grow the natural assets under their management to foster healthy ecosystems.”

The Organizations are aware that the Securities and Exchange Commission has proposed general outlines for the administration of a NAC type business.  This Proposal may have been the largest and most coordinated effort to outline what a NAC is intended to achieve and how those goals would be achieved and how these goals would relate to other business activities.  As part of this effort, significant opposition to the concept was received by the SEC from what can only be summarized as a diverse range of interests.  As a result of this opposition, the SEC announced the withdrawal of their proposal.[28] While the SEC has withdrawn their proposed regulations for NACs, we believe the NACs effort will continue without the approval of the SEC.   Given the scale of these efforts, we don’t see this change being brief or not impacting federal lands

As we have noted, the BLM is working on several proposals that would be huge steps towards implementing a NACs model of management and BLM engagement can only be summarized as bad.  Many of these BLM Proposals would grant broad new authority to implement management responsibilities in numerous ways from executing leases to authorizing closures. All of this is being done under the guise of streamlining authority for the benefit of recreation.  This is a conclusion we must disagree with. From the motorized recreational perspective, all this model of management does is allow DOI to declare a climate emergency, or ESA emergency or similar remote threat to public safety or resources and then turn over management to third parties that have clearly stated they have no interest in multiple use. These are for profit entities that BLM simply does not have the staff to begin to oversee or manage.  The complete lack of alignment with the goals of the NACs model causes concern for how a recreation project in any form could comply with what NYSE is stating as the goal for these businesses.

As we have noted previously, land manager engagement on these multiple coordinated planning efforts has been poor.  We have many basic questions around leasing of public lands, and would reassert our position that with some guidance and education of our interests the NACs model might be a management model that existing partners could support. We are again asking these questions in the hope of creating some type of meaningful dialog on this effort.  Some preliminary questions on this issue would include:

1. What is the relationship of a NACs effort to the multiple use mandate and more specifically existing multiple use recreational decisions?  Multiple use concepts simply  do not seem to be the priority at all when you have the NYSE stating the mission is to increase capture of natural value and improve environmental, social and corporate governance  (“ESG”) scores for corporations. Candidly recreation is just not reflected in any businesses ESG scores and elevating corporate profitability to this level of use of public lands will be immensely problematic.
2. If there are discussions about the creation of a conservation credit program for partners, we would like to participate. The motorized community has been a partners with Federal land managers for decades.  Our efforts certainly could be the basis of conservation credits. Our concerns, outside protection of multiple uses and avoiding closures, initially would include:
   1. Does conservation include just wildlife or water and soil or air efforts as well?  We are aware that the US Fish and Wildlife Service has a conservation credit program in place already that works on private lands. What is the relationship between these efforts?
   2. How is the process of issuing credits going to be allocated?  It would appear that the decision has already been made that leasing is the mechanism for allocation of credits.  This model to allocation does not work for motorized efforts as a lease implies exclusive possession of the area by the leaseholder. Balancing multiple uses and conservation would be far more achievable if the relationship was based on permit rather than a lease as most permit holder do not have exclusive possession of the area subject to the permit.  Additionally leasing would result in another layer of paperwork to work through for our efforts and a lease like this for recreation would be completely uninsurable from our perspective.
   3. The credit allocation process needs to reflect all partners.  Just in the recreation world, we must believe that state wildlife agencies would want credits for their work. State Wildlife agencies work is foundational to any sustainability effort as they count animals and provide boots on the ground.  Legally most wildlife is under the primary jurisdiction of the state even on federal lands. If we are protecting a species, exact counts of population have always been provided by state wildlife agencies. These NACs credits could reduce the cost burden on the hunting and fishing community for licenses and equipment purchases.  This would be hugely beneficial to these partners as well.
   4. How would the programmatic nature of many efforts, such as state wildlife agencies and OHV/OSV registration programs be reflected and balanced with the project by project nature inherent in a lease?  Allocating credits based on projects might be a stop gap for some projects, like a site specific clean up but much of our effort is programmatic in nature.  Programmatically based credits probably should go back to the state for grant funded projects as most states prohibit grant recipients from profiting from the grants.  Clearly leases don’t align with this type of situation and individual partners will be poorly suited to sell conservation credits. Also the sale of credits will be easier and more efficient if the credits are bundled into groups for sale rather than being sold one by one.
   5. We are assuming that any leases or similar efforts would be subject to public bidding and other requirements like most government contracts? The ramifications of this question are significant in isolation.
   6. How will basic equity, payment of front end costs in developing leases and multiple uses be addressed in management of leases?  Clearly these leases will need archeological surveys, §7 consultations and community engagement before they are ever put out for public bid. IE if an area is leased to a third party but the crews the OHV program funds remain working in the area and many others how would this relationship be determined. Credits should be provided to the person doing the work and not just the lease holder.
   7. How will lease holder performance be monitored?  If a leaseholder closes an area without authority who deals with this?  Currently, BLM has no staff now to deal with unauthorized gates etc making any assertion of agency oversight problematic. For profit lease holders will see to maximize profits from the lease and public access is not going to align with that motivation. The idea of a local club having to sue a wall street leaseholder to reopen trails improperly closed is not appealing to us for many reasons.
   8. How does all the new efforts align with existing efforts and planning?  As outlined in these comments, the emergency authorities under NEPA or Healthy Forest Restoration Acts or similar grants of emergency authority to land managers should not be used for leasing to for profit companies. The implications to goodwill between managers and communities from emergency response efforts must be recognized and addressed.
   9. All this work would need a significant allocation of BLM staff to support NEPA and leaseholder monitoring and many other facets of large projects.   We are concerned this new management model will only exacerbate current staffing shortfalls within the agencies rather than resolve them.  Our programs provide significant funding for staff and NEPA and this funding really does not improve the staffing situation.  Why would a lease holder be any different? District rangers will still need to sign EA or Cat ex, cultural resource inventory will still need to occur, §7 consultation will still be needed, public meeting held for conservation efforts.  This will greatly expand staff demands and this is all going to be needed before a lease is ever signed. This will mean projects we would like to move will simply fall further down the list of priorities.
   10. These credits appear to be valuable and if we can obtain credits for the state OHV programs, our desire would be to resell the credit and then directly reinvest the proceeds in the program to support more work on the ground almost immediately.  The issuance of credits to NACs would provide profits to shareholders and that funding would probably have a much longer route back to reinvestment.
   11. How will any improvements be maintained in the long run once the lease has run out?  Leaseholder will have no reason to continue maintenance.

While we are aware that many of these questions are outside the scope of this Proposal when it is viewed in isolation, many of these concerns would be immediately if the relationship of NACs to federal lands was handled in a more coordinated and cohesive manner. As a result,  we are again asking these questions again in the hope of triggering meaningful public engagement.

6. Conclusions.

The above Organizations must vigorously oppose the proposed expansion of authority to issue temporary closures and restriction orders on lands managed by the BLM provided in the Proposal. The Proposal spans a mere five pages of the Federal Register and provides random unsupported assertions combining wildly disparate situations in an attempt to support the Proposal.  The Proposal asserts to be creating new management authority despite BLM having been provided this authority for decades. The Proposal then addresses unusual concerns around how this existing authority would be applied, such as asserting there are significant appeals of emergency closures currently. This is problematic for many reasons.

Our Opposition to the Proposal compounds when the Proposal then attempts to provide new basis for closures, based on concepts such as “implementation of management responsibilities” for unspecified periods of time. No discussion of what this term means or how it could be applied under existing regulations is provided at all. The Proposal also appears to create the possibility that emergency closures could span decades by allowing closure orders to exist until Resource Management Plans can be updated.

The Proposal is highly frustrating to existing partners as it appears to merely another step in the opening of BLM to large scale leasing of federal public lands to Natural Asset Companies without public engagement in any phase of this discussion.  The Proposal is clearly seeking to allow emergency closure orders to be issued in circumstances where there is little proximate and significant risk to the public simply to avoid NEPA analysis of leasing efforts. It is highly frustrating the Proposal seeks to apply provisions created for effective and efficient manager response to true on the ground emergencies in a manner that was never intended when this authority was created. We believe this effort will ultimately be unsuccessful and could actually result in significant negative impacts to resources. The use of emergency response provisions in this manner will create significant erosion of support for these provisions and expand distrust of the public in any action the agency takes.

The Organizations and our partners remain committed to providing high quality recreational resources on federal public lands while protecting resources and would welcome discussions on how to further these goals and objectives with new tools and resources. 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).

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President – CORE

Sandra Mitchell
Executive Director – IRC
Authorized Representative – ISSA

Clif Koontz
Executive Director
Ride with Respect

Matthew Giltner
Executive Director
Nevada Offroad Association

[1] Welcome to the Off-Highway Motor Vehicle Recreation (OHMVR) Division’s Grant Programs (ca.gov)

[2] Colorado summer program is outlined here https://cpw.state.co.us/Documents/Trails/OHVGrantProgramAwards.pdf Colorado winter program is outlined here.

[3] A summary of video of these efforts to date is provided here: OHV Final on Vimeo

[4] See, Dept of Interior, Bureau of Land Management, Temporary Closure and Restriction Orders; Proposed Rule; Federal Register / Vol. 88, No. 223 / Tuesday, November 21, 2023 / at pg. 81023(hereinafter referred to as the ”Proposal listing”

[5] See, Generally 43 CFR Part 9210.

[6] See, 43 CFR §9212.2

[7] See, 43 CFR §4.1a

[8] See, Proposal Listing at pg. 81024

[9] 43 CFR §9212.3

[10] See, Proposal listing at pg. 81022

[11] See, 43 USC §1742

[12] See, 43 USC §1469

[13] See, 43 USC 1748(a)(PL 111-88)

[14] See, Proposal listing at pg. 81025

[15] 40 CFR §1508.25(a)

[16] Klamath Siskiyou Wildlands Center v. Broody, 468 F.3d 549 (9^th Circuit 2006)

[17] See, Proposal listing at pg. 81025

[18] Emergency Definition & Meaning – Merriam-Webster accessed 1/16/24

[19]fws.gov/sites/default/files/documents/ESA-Public-Petition-Guidance.pdf

[20] See, Weyerhaeuser v. US Fish and Wildlife Service; 586 US ___(2018) pg. 9.

[21] Notice of Withdrawal of Proposed Rule Change to Amend the NYSE Listed Company Manual to Adopt Listing Standards for Natural Asset Companies (sec.gov)

[22] See, Proposal at pg. 19588

[23] See, Proposal at pg. 19585

[24] See, Proposal at pg. 81027

[25] www.blm.gov/wo/st/en/prog/planning/nepa/webguide/departmental_manual/516_dm_chapter_11.html#11-8

[26] See, DOI; Bureau of Land Management; connecting with communities – BLM National Recreation Strategy- 2023 at pg. 2. A complete copy of this document is available here: blm.gov/sites/default/files/docs/2023-08/Blueprint for 21st Century Outdoor Recreation508.pdf

[27] See, Natural Asset Companies (NACs) | NYSE  This website was accessed January 15, 2024.

[28] Notice of Withdrawal of Proposed Rule Change to Amend the NYSE Listed Company Manual to Adopt Listing Standards for Natural Asset Companies (sec.gov)

Three Peaks Travel Management Environmental Assessment

Dear Planning Team Members:

Please accept this correspondence as input on the Three Peaks Travel Management Environmental Assessment. Our Organizations have been involved in stewardship, volunteerism, education, and motorized advocacy within the Royal George Field Office (RGFO) for many years.

I. Who We Are

Before addressing our specific comments, we believe a 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 to protect and promote 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 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 advocates 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 Offroad Enterprise (CORE) is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. CORE has 15 adopted trails spread throughout the Salida, Gunnison, and Leadville Districts and has accumulated several thousand volunteer hours for the BLM and Forest Service over the past few years.

II. Discussion

We are thankful for the opportunity to submit comments on this proposal considering the designated travel network. We advocate for and recommend Alternative C, which includes the most public access available for all uses being considered. Alternative C meets the Purpose and Need of this project by considering and managing potential impacts while still allowing much of the existing public access to be maintained. We recommend constructing route SP2215 to enable public access near Jackson Hull Mountain. We recommend escalating levels of management, which Alternative C provides while still allowing reasonable public access.

III. Alternatives

The Purpose and Need of this project are simple in that the desire is to create a designated route network where one has not been established beyond restricting travel to existing routes. This stated need has arrived from staff and public observations for managing travel to protect resources. Generally, we do not oppose seasonal closures for motorized use as proposed in Alternative C or Alternative D. There is no noticeable difference in managing adverse impacts from the preferred Alternative D and the ‘Motorized’ Alternative C. However, Alternative D restricts public access much more than Alternative C.

Issue Statement #1 of this proposal would not change the eligibility (+5,000 acres) for Lands with Wilderness Characteristics (LWC), and this proposal deals solely with Travel Management Designations of existing routes, so there is no substantial or negative effect. Additionally, the RGFO proposed updated Resource Management Plan ¹ states in section 3.1.13, page 3-22:

No existing law or policy grants priority to preservation of lands with wilderness characteristics over other resources or resource uses, so BLM has the discretion to determine management of these areas in consideration of other priorities.

Because the routes already exist in these two regions and the ground is already disturbed due to the presence of these routes, they should remain open to public access and not be closed to prioritize LWC. Routes within the project area can also be used by the public to access the LWC for quiet recreation.

Issue Statement #2 of this proposal states this:

This alternative would exhibit the greatest impact to vegetation resources, but not to the level as in the current situation. Alternative C installs management and controls route proliferation and thereby should help most areas achieve Standards for Public Land Health in the long-term.

When considering the reasonably foreseeable trends in the analysis area and the current situation, changes under Alternative C could result in improvements in land health and greater plant community resistance when compared to the No Action Alternative. The cumulative effects associated with this alternative are likely to have a beneficial impact to vegetation resources across the larger area as a whole.

Alternative C is a viable option to mitigate vegetation loss because of the route designations, signage, and management that will take place once a decision is reached. This option should be the first level of management prescribed instead of route closure.

Issue Statement #3 of this proposal acknowledges the most opportunities for the most public land visitors to this area. Quite users will still have numerous options for hiking and other forms of activity with only 21 miles of designated routes in Alternative C, especially considering the two LWC areas that encompass well over 5,000 acres each within the project area and by maintaining the existing public access to those two areas.

Issue Statement #4 of this proposal deals with potential dispersed camping and potential range management conflicts. If these issues were to be realized, the RGFO could implement designated dispersed camping as it has in other areas of the RGFO to mitigate camping-based conflicts.

Issue Statement #5 of this proposal for Alternative C contains contradictory language:

Alternative C establishes a designated route network for all inventoried routes in the analysis area. Under this alternative, 21.8 miles remain open, 2.1 miles are open with seasonal restrictions and 12.5 miles closed or limited to administrative use only. In addition, .3 miles of new road construction would occur under this alternative. Like Alternative D, this alternative establishes a designated route network for all inventoried routes based on Management Strategies that would minimize impacts to forest resources and includes management that inhibits the potential for disturbance through route proliferation. However, fewer miles of existing roads are closed, and this increased route availability would allow for greater access to legal wood product harvesting. The cumulative effects of Alternative C is likely to have a negative impact on forest resources.

 This statement contains no negative impacts for Alternative C until the last sentence, which arbitrarily claims, “The cumulative effects of Alternative C is likely to have a negative impact on forest resources,” despite the entire paragraph preceding that statement detailing the exact opposite likely outcome including establishing a designated route network minimizes impacts to forest resources and inhibits the potential for route proliferation, which would allow greater access to legal wood product harvesting. Alternative C should be chosen to enable initial route designation management to address issues while allowing public access.

Issue Statement #6 of this proposal has a separate discussion item (IV.) in these comments.

Issue Statement #7 of this proposal contains no on-ground examples of negative impacts in the planning area or for Alternative C. The proposal only cites hypothetical ‘potential impacts‘ as a justification for the closure of route SP3206.

Alternative C largely mirrors the same impacts as Alternative A. The major difference is that Alternative C limits 11.3 miles of routes to Administrative Use only. Cumulatively, this decrease in public motor vehicle traffic could have beneficial impacts to wetlands health, road conditions, and decrease the sediment/contaminant/ invasive species loading into water bodies. Also, Alternative C would close route SP3206, an area of with a myriad of potential impacts on water resources.

Nothing specific in this section suggests Alternative D as a better option for the public when compared to Alternative C. We would also ask the RGFO, how are you measuring and quantifying the production and transport of sediment into water bodies? Additionally, is sedimentation above an acceptable level? This seems to be a very subjective opinion and perhaps observation based upon casual surveys by staff.

Issue Statement #8 of this proposal concerning soil and erosion: if Alternative C were chosen for this proposal, it would manage potential issues.

Alternative C largely mirrors the same impacts as Alternative A. The major difference is that Alternative C limits 11.3 miles of routes to Administrative Use only. Cumulatively, this decrease in public motor vehicle traffic could be beneficial for mitigating the soil resources impacts on the route itself and potential, sediment and contaminant transport from runoff. Most notably, Alternative C limits route SP 1054 to Administrative Use Only, while Alternative B designates the route as closed. While this is a route with potential impacts to soil resources, crossing cobbly loams at moderately high grades, limited the public motorized access should be sufficient in mitigating soil resource impacts at this location.

The rationale suggests that Alternative C can mitigate potential soil resource impacts, and should issues occur in the future, the RGFO could certainly escalate management to address future problems should they rise to a problematic level. Technical solutions specific to erosion control could be implemented as a management prescription, if necessary, in the project area. Erosion and sedimentation are natural processes often needed to maintain a balanced hydraulic system. All erosion and sediment transport are not necessarily a problem, harmful, or a threat to natural systems. Many natural ecosystems/wetlands need and require sediment and the movement of sediment to remain healthy and in balance. How much sediment in the project area is too much, and how is this determined? Simply claiming erosion and sediment transport as a negative potential is insufficient to remove public access from public routes. These potential issues should be shown to be present on the ground, above problematic thresholds, and beyond the use of technical solutions to control and mitigate adverse sediment production generated by roads, trails, or parking areas before restricting public access.

The issue statements also contain no substance beyond speculation and no substantial impacts to LWC to prioritize Alternative D over Alternative C in this proposal. Alternative C addresses all the current potential concerns while still allowing public access to continue. Should issues arise, the RGFO can still implement further management prescriptions to address hypothetical problems. We recommend Alternative C to accomplish the Purpose and Need of this project while still balancing public access.

IV. Doomsday Scenarios

We are concerned with the language contained in Issue Statement #6. This language implies the RGFO is considering a doomsday scenario or worst case possible as a wildlife justification. It states Alternative C is not much better than the No Action Alternative for wildlife sustainability:

This alternative is second only to the No Action alternative regarding negative impacts to big game priority habitats. The potential will be high for human disturbance on elk, mule deer, pronghorn, and bighorn sheep during their most sensitive periods. As discussed in section 5.6.1 this can lead to reduced winter survival and reproductive success, with potential for broad-scale impacts.

The No Action Alternative section referenced in Alternative C contains this language:

Increased disturbance to wildlife and reduced habitat quality would likely have negative impacts on important wildlife population parameters such as overwinter survival, reproduction, and recruitment of young. As a result, decline and stagnated growth of big game populations could occur. It is important to consider that declines in the previously mentioned population parameters (i.e. survival, reproduction, recruitment) can take years to cause population-level declines that can be detected with herd surveys. Further, since the effects of human disturbance compound other negative factors, and the effects of all those factors are complex, the effects will likely not be linear. For example, the effects of increased human disturbance in elk severe winter range may not be exhibited at a population scale until they coincide with a severe winter and cause extraordinarily high winter die-off in a herd. Thus, a stable big game population that has experienced increased recreation within priority habitats for a small number of years cannot be considered evidence of a lack of negative effects of human disturbance.

 The chosen hypothetical RGFO included in this proposal is an attempt to steer the decision towards Alternative D. Worst Case hypothetical scenarios for wildlife populations are not part of a NEPA review, and the courts have consistently rejected these arguments. The Supreme Court’s ruling on Roberson v. Methow Valley Citizens Council ² stated:

‘In sum, we conclude that NEPA does not require a fully developed plan detailing what steps will be taken to mitigate adverse environmental impacts and does not require a “worst case analysis.”‘

Additionally, the recent DC Court of Appeals ruling for Maine Lobstermen’s Association v. State of Main Department of Marine Resources ³ stated:

‘In this case, we decided whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the “benefit of the doubt” to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not. The ESA and the implementing regulations call for an empirical judgment about what is “likely”. The Service’s role as an expert is undermined, not furthered, when it distorts that scientific judgement by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.’ 

A review of the herd management plans that overlap with the project area does not justify this worst-case scenario as a likely reality. The plans all mention, or list, recreation as a concern and one that should be considered by Land Management Agencies when making decisions, but nothing documented in the herd plan rises to the level of stating that continued recreation will lead to a population level decline due to cumulative recreation in the big game herds within the project area. The highest recorded documented impact for the E-22 Elk Herd ⁴ was for a locoweed impact resulting in locoism that killed 200 elk in summer. This impact was attributed to low moisture for that year and had no connection to recreation. Still, the E-22 Elk Plan has been above the management objective number since 1990, and that plan states explicitly:

Those population objectives are considered to be the most reasonable goal for this herd based on the quantity and quality of available habitat for elk, the recreational, economic and political desires of the people of the state, the level of conflicts between the elk herd and agricultural producers in the area, and the comments of land management agencies.

 Adding a seasonal close to all routes within the project area deemed to be sensitive areas can accomplish the Purpose and Need of this project, provide protections to wildlife, and still allow public access.

The Mule Deer plan referenced in section 5.6.1 of the proposal leaves out some specific details and data in that document.

Recently completed Herd Management Plans for local bighorn sheep and mule deer herds point to increasing recreation and development as primary threats to those populations (Grigg 2020, Deschenes and Lamont 2022).

This section is worded to suggest that recreation is a landscape-level threat to the Mule Deer population in D-16 and is on par with the loss of habitat due to development. The Herd management plan for D-16 ⁵ does not state this implied fact and clearly outlines the most significant threat in the management plan is cougar predation.

Since 1999, we have radio collared 1,086 adult does and 898 fawns in D-16 to examine annual adult survival and winter fawn mortality. From 1999-present, averaging across all years, the leading known cause of both doe (6.4%) and fawn (7.5%) mortality has been cougar predation. Cougar predation has ranged from 0 to 60% (avg. 28%) of the total mortality for does and 0 to 64% (avg. 32%) of the total mortality for fawns. However, it is not known if cougar predation is limiting population growth in D-16, or if this population is experiencing density-dependence due to habitat limitations.

The D-16 Mule Deer Management Plan states multiple times that this population may be habitat- limited, which might also account for the numbers. The Management Plan does list recreation as a concern and under the significant issues. Still, it does not mention recommendation specifics for recreation except to work with management agencies to balance wildlife needs with recreation.

The RBS-9 Big Horn Management Plan ⁶ contains conflicting statements about the herd size, objectives, issues, and recreation. The beginning of the plan states:

The current population estimate in RBS-9 is stable at approximately animals. Key limiting factors for this population include the potential for disease outbreaks. Considering bighorn distribution, winter range capability, population density/density dependence, and the potential risk of contact with domestic livestock, our Wildlife Commission approved management objective is: Population target 375 bighorns (range 350-400)

 The plan then states:

Strategies for obtaining objectives and addressing issues: Both preferred alternatives are consistent with CPW’s current management in RBS-9. Therefore, CPW does not expect a change in harvest management with this plan. The most significant issues for RBS-9 are limited winter range and the potential for disease transmission from domestic livestock, particularly from domestic sheep and goats (George et al. 2009). There are currently no active domestic sheep summer grazing allotments in this DAU, however, there are hobby livestock operations that provide a continual threat of disease transmission. CPW will continue to work with stakeholders and land management agencies to mitigate and address these issues.

 Referencing recreation, the plan states:

The RBS-9 herd has become especially impacted by an increase in dispersed camping, mountain biking, and hiking. In general, recreation has increased significantly over the last 10 years in the RBS-9 area.

 The plan also references mountain biking and river activities because the plan area encompasses the Arkansas River Recreation Area. The herd numbers, however, have stayed consistent for the last 38 years. This would suggest two things. First, the growing level of recreation has not yet harmed herd numbers. Second, utilizing seasonal closures on motorized routes during sensitive times would certainly address future concerns from motorized recreation. The Alternative D justification in this proposal reinforces this suggestion:

Timing restrictions are used as the primary tool for protecting big game priority habitats under this alternative because they reduce human disturbance during the most sensitive periods, while still allowing motorized access at other times of the year.

Why could Alternative C not provide this same benefit to wildlife if timing restrictions were used instead of outright route closure? After carefully reviewing the herd plans and the justification provided by the RGFO, we recommend Alternative C be adopted with seasonal closures to balance public access with wildlife concerns. We disagree with the doomsday scenario proposed and do not support the justification and management prescription in Alternative D to avoid such a, worst-case, hypothetical situation.

We would also like to point out the changed condition on the ground in Colorado as of December 18, 2023. CPW reintroduced Grey Wolves in Grand County. This event may seem far from the project area, but CPW has said they plan on releasing 30-50 wolves to begin the ‘sustainable population’ required by Prop 114. A reintroduction area along Hwy 50 in Gunnison County is contained in the Reintroduction Plan ⁷. There is one county removed (Chaffee) from the project area in Fremont County, and considering the mileage wolves travel, it seems only a matter of time before wolf activity is detected in Fremont County and the project area. The CPW Wolf Reintroduction plan has this information:

“Within Colorado, preliminary release locations are constrained by several geographic criteria. State statute requires that wolves be released only west of the Continental Divide (CRS 33-2-105.8). Fritts et al., (2001) found that wolves released in Yellowstone and central Idaho moved substantial distances in the months immediately after release (average distance was approximately 50 miles ranging from approximately 22 to 140 miles from the release sites).”

Wolves can be expected in and around Freemont County in the future. This reintroduction will affect Elk, Mule Deer, and Big Horn Sheep behaviors, survival rates, and herd numbers. This proposal does not address this changed condition and assumes wildlife numbers will remain constant if recreation is limited in the project area. This assumption is a significant flaw in this proposal and should be considered during this planning process.

Wolves in Colorado will alter the big game landscape by changing animal and herd behavior beyond what is accounted for in the herd plans, migration corridors, winter range, and population estimates. Some research, contradictory to this proposal, suggests that ungulates will seek out human areas to escape predation. Bacon and Boyce 2016 ⁸ suggest Big Game Animals (Ungulates) will flee wildlife protection areas when a large new predator is reintroduced into an area.

The Study Introduction contains this information:

“Historically, large predators in North America were perceived as competition for food and a risk to the safety of settlers and their livestock (Kellert et al. 1996). Predators were heavily hunted, trapped and poisoned to the point where species such as the cougar (Puma concolor), wolf (Canis lupus), and grizzly bear (Ursus arctos) were extirpated from much of their original range (Berger 1998; Terborgh et al. 2000). In the absence of predators, ungulates and other wildlife minimize their risk of human encounters by avoiding areas used for agriculture and recreation (Cuiti et al. 2012). Our activities, however, also can alter hidden interactions that exist within an ecosystem, sometimes to the point of disassembling entire natural communities (Hebblewhite et al. 2005; Ripple et al. 2014).”

 “Indirect effects that predators have on other ecosystem components merit careful attention because they can have implications for the way that human-wildlife conflicts might re- ignite.”

 The Discussion Section Contains this information:

“The shift in distribution of cervids, particularly mule deer, during the decade of cougar re-establishment demonstrates that cougars have restored a landscape of fear in the Cypress Hills, causing prey to leave the security of the protected park and forest cover that now harbors a highly effective predator. During the period of our study, radiotelemetry data for Cougars showed that the predator remained primarily within the confines of the protected forest (Figure 1). Analysis of aerial ungulate surveys showed that deer and elk shifted their distribution outside the Park during the same time period, when cougar presence was the only significant change in the region.”

“Prey that had lived with little fear of large predators for ca. 40-50 generations must now trade-off between avoiding humans and avoiding predators. Indeed, in some instances, humans might act as a shield against cougar predation because they present less risk of mortality for prey (Berger 2007) and because cougars are deterred from human-dominated areas (Morrison et al. 2014).”

This study mentions Wolves but directly looks at Cougars as the large predator reintroduction study species. Indeed, the Colorado Wolf Reintroduction will have similar results for this state’s Elk and Deer populations. The Yellowstone Wolf Reintroduction documents state that a single Wolf kills about 2 Elk per Wolf per month to sustain itself over a calendar year encompassing all four seasons. That will drive Elk and Deer numbers down in Colorado, and we don’t yet know how our big game animals will react to a reintroduced large predator.

Will they stay in the protected areas (this proposal) we set up for them, or will they move towards human activities to escape the reintroduced large predators? If Wolves are released close to Chaffee County or eventually make it to Fremont County, no pre-release wildlife protection and big game planning will be valid after reintroduction. This changed condition should not preclude public access to the project area to maintain a pre-wolf environment and pre-wolf objectives.

Alternative C with this changed condition, it is still the best management option to include seasonal closures while maintaining public access. The RGFO will then still need to be vigilant and monitor wolf expansion and movement to track the changes to big game herds and numbers that will result. Ironically, this research may also paint a different picture relative to the cougar predation problems documented in D-16. It is entirely possible that human activity and development are preventing further population-level declines by cougars for Mule Deer.

V. Escalating Management

Our organizations generally favor escalating management to mitigate existing and hypothetical future issues. This allows the RGFO to take steps at managing impacts while also testing management prescriptions without implementing more restrictive measures that may not be needed. More restrictions could be implemented, but we recommend reserving those options when lesser implementation fails with documentation. The Preferred Alternative D in this proposal adopts route closures that may not be needed to accomplish the Purpose and Need. If seasonal closures are implemented as proposed, closing more routes to public access beyond that of seasonal closures for wildlife concerns is more restrictive than needed in this proposal.

The court held standard for management decisions based on wildlife concerns has shown to be what is ‘likely‘ to occur. It is more likely that implementing minimal management prescriptions to increase the level of management (this proposal) above currently restricting travel to existing routes and by designating a public route system, wildlife population numbers will continue to align with the management objectives and the specifics outlined in the Herd Management Plans. Wolve reintroduction is an unknown, but it is also likely that negative impacts on a population level scale will result in ungulates due to wolf predation. Once this likely scenario occurs, human activity may contribute to ungulate survival.

Implementing escalating management is our recommendation, and we support Alternative C with the construction of route SP2215 and the re-evaluation of SP3206. Further restrictions should not be considered until negative impacts are documented on the ground and beyond acceptable levels.

VI. Recommendation

We thoroughly recommend Alternative C with the construction of SP2215 and the re-evaluation of SP3206 to allow public access to Jackson Hull Mountain and its vicinity. Alternative C does not pose management challenges beyond Alternative D. The same management strategies included in this proposal can be implemented while keeping 20 miles of public routes open. Public access and wildlife can coexist, and doomsday scenarios should not be used as an evaluation tool in a proposal that could permanently remove public access. Escalating management is a successful strategy, and route closure should be the end of that spectrum when all other management prescription options have been utilized and exhausted. Wolves in Colorado will pose new management problems for wildlife population numbers, and wildlife could look to human activity as a protective mechanism in contrast to human avoidance at all costs, as presented in this proposal.

We are generally disappointed in the direction of this proposal when compared to meeting the needs of public access, dispersed camping, and all the additional recreational experiences that take place on public roads that are difficult to quantify fully. This proposal acknowledges the public’s growing desire to experience public land via public access and the desire to engage in multi-day adventures by incorporating dispersed camping. However, this proposal does not analyze a single alternative that could expand public access opportunities and does nothing to address and satisfy the desire for dispersed camping. This proposal discusses hypothetical negative impacts of the public being allowed to recreate in the project area and discusses hypothetical dispersed camping impacts and dispersed camping conflicts but does nothing to propose a new public route with designated dispersed campsites to help fulfill this public desire. Aside from Alternative A being the control variable to measure proposed Alternatives against, nothing discussed in this proposal might help meet public needs besides closing routes to the public or restricting areas. This fundamental flaw assumes that the only reasonable management strategies to apply in the future require restriction and closure. This pathway can’t help but prejudice a project outcome by assuming public use on public land is a net negative. Closure should not be used as a management prescription until alternative options are exhausted. We recommend against unnecessary restriction and recommend Alternative C with additional route construction be chosen as the only viable Alternative contained within this proposal.

Marcus Trusty
CORE President

Scott Jones
COHVCO Authorized Signer

Chad Hixon
TPA Executive Director

¹ Proposed Eastern Colorado Resource Management Plan & Environmental Impact Statement – Volume 1: Executive Summary and Chapters 1-5, Royal Gorge Field Office, 2023.

² Robertson, Chief of the Forest Service ET AL. v. Methow Valley Citizens Council ET AL., 1989

³ United States Court of Appeals for the District of Columbia Circuit. Maine Lobstermen’s Association, State of Maine Department of Marine Resources, ET AL. v. National Marine Fisheries Service, ET AL., 2023.

⁴ Buffalo Peaks Elk Management Plan Extension, Data Analysis Unit E-22, Jamin Grigg, 2018.

⁵ Cripple Creek Deer Herd Management Plan Extension, Data Analysis Unit D-16, Jamin Grigg, 2020.

⁶ Arkansas River Bighorn Sheep Herd Management Plan, Data Analysis Unit RBS-9, Bryan Lamont and Kyle Deschenes, 2023.

⁷ Colorado Parks & Wildlife, Colorado Wolf Restoration and Management Plan, 2022.

⁸ Landscape of Fear for Naive Prey: Ungulates Flee Protected Area to Avoid a Re-established Predator, Michelle Bacon and Mark Boyce, 2016

Reprinted with permission
Ride With Respect Year in Review 2023
www.ridewithrespect.org

2023 was another eventful year for Ride with Respect (RwR). While continuing to promote responsible recreation practices and assist effective management, we stepped up our protection of access by off-highway vehicles (OHVs). In Labyrinth Rims, the recent closure of 317 miles of routes included several that RwR has spent hundreds of hours improving, and now we’re challenging these closures at great expense. If you haven’t already made a tax-deductible donation in 2023, there’s still time to do so, and to encourage donations from others who enjoy OHV riding in Moab and elsewhere in Utah. Just send a check to Ride with Respect (395 McGill Ave, Moab, UT 84532) and indicate if you’d like the receipt to be in 2023.

We appreciate the monetary donations and volunteer time from many people who care about the trails and their surroundings. Thanks to the following for contributing over a thousand dollars this past year:

1. Utah Division of Outdoor Recreation
2. Rocky Mountain ATV/MC
3. Trails Preservation Alliance (TPA)
4. Peter Lawson
5. Balance Resources
6. Grand County Recreation Special Service District
7. KMAC Corporation
8. Moab Friends For Wheelin’
9. Anonymous
10. John Borg
11. Rob Stickler
12. Timberline Trailriders
13. Bonneville Equipment Company
14. Xtreme 4×4 Tours
15. Dave McEuen, CPA for HEB Business Solutions

Trail Work

This past year, in conjunction with state and federal land managers, RwR spent another couple-hundred hours preparing for and performing trail maintenance. For example we built a trailer to haul several-thousand pounds on 4WD roads. The maintenance itself included clearing brush from the Upper Twomile trail system, blocking braids of Sovereign Trail, and repainting the blazes at Dubinky (see photos). Trail work is a key ingredient to keep trails fun, sustainable, and legally accessible, especially as use levels increase. There’s much more to do next year, and we encourage anyone who enjoys Moab trails to contact RwR, as we can surely find a few hours that you’re available to pitch in.

Education

Especially in the canyon country, it’s truly crucial to “tread lightly,” which is as simple as staying precisely on the trail and slowing down upon encounters with people or other animals, not to mention running a relatively quiet muffler. Most of RwR’s education this past year involved partnering with other entities. I was proud to help NOHVCC bring its annual conference to Utah, which was a great opportunity to showcase this state while learning from all the other states that were represented. At the Utah Outdoor Recreation Summit, I joined a panel presentation to discuss the state’s required adult OHV education course. On a volunteer basis, I also attended the BLM’s Utah RAC meetings and field trips, the Big Ride that convenes Utah’s OHV clubs, the Utah Off-Roaders Alliance meetings along with SLOREX, and American Motorcyclist Association board meetings along with the AIMExpo and AMA Motorcycle Hall Of Fame Induction Ceremony. Finally I continued assisting the Utah Division of Outdoor Recreation to refine its incredible grant programs, all of which are eligible for projects on motorized trails, as described in this grant workshop.

Motorized Trails Committee

Since 2019, I have chaired Grand County’s Motorized Trails Committee (MTC), which is comprised of dedicated OHV enthusiasts along with land managers and county staff. In 2023, the enthusiasts volunteered another few-hundred hours of trail work, and they offered valuable guidance about many aspects of management. They helped the county secure a state OHV grant that will fund $256,531 for a Motorized Trail Ambassador program, while the county will contribute $90,996, with both entities providing expertise in education. The county has hired ambassadors with a strong background in OHVs, and it has been responsive to the MTC’s feedback on the development of educational materials thus far. It’s encouraging to see the state’s investment, the county staff’s commitment to working with OHV enthusiasts, and especially the enthusiasts themselves for volunteering on the trails and in meetings every month.

Moab Camping Management Plans (CMPs)

In 2022 the BLM drafted CMPs in three areas to require that dispersed camping be done in designated sites. As RwR explained in our 2022 YIR, we partnered with the TPA, COHVCO, and CORE to ensure thorough planning so that valuable campsites are not short-changed. In 2023 the BLM released an updated draft CMP for the Labyrinth Rims / Gemini Bridges Area that showed its inventory of sites just as we requested, so RwR and its partners submitted additional comments urging the agency to go another few steps in improving the process.

In July the BLM released a final plan that acknowledged additional campsites inventoried primarily by BRC. It also affirmed that, to access campsites, routes could be added to the travel management plan (TMP) in future. Of course the existing access routes shouldn’t have been closed by the 2023 TMP in the first place because the value of the campsites wasn’t analyzed by the 2023 TMP nor the 2023 CMP, so route closure was premature. Nevertheless, in the context of the CMP, acknowledging the potential to add access routes is helpful.

Most importantly, the CMP committed to do subsequent Environmental Assessments before actually limiting camping to designated sites so the public can review and comment on the BLM’s proposal for each site. The BLM made this commitment for Labyrinth Rims / Gemini Bridges, and not for Utah Rims or Two Rivers, but we hope the BLM sees the value in providing for site-specific public review and comment for all three areas. Groups seeking to vastly expand the designation of wilderness (which prohibits mechanized use including chainsaws and hand carts) actually discouraged additional public participation, so we appreciate the BLM for taking many of our suggestions, and look forward to the next steps in managing dispersed camping.

Labyrinth Rims / Gemini Bridges TMP

This past year, RwR has continued to partner with the TPA, COHVCO, and CORE in the Labyrinth Rims / Gemini Bridges TMP, currently appealing the BLM’s decision to close 317 miles of route, many of which have great recreational value and no significant impact upon natural or cultural resources. As RwR explained in our 2022 YIR, we have contributed several-thousand hours implementing and refining the 2008 TMP that closed half of the existing routes, including construction of a couple dozen reroutes away from sensitive resources. In a few cases, this work and our 2022 comments convinced the BLM not to close routes that were targeted by Alternative C (which appeared to be the agency’s preferred alternative), such as Brian’s Trail and the Enduro Loop below Big Drop.

However overall the BLM’s 2023 TMP decision is closest to Alternative B, the one that Grand County had convinced the BLM to make far more restrictive than what the agency had originally planned. To name a few, the 2023 TMP closes the Dead Cow motorcycle loop, parts of several Easter Jeep Safari routes including all of Hey Joe, virtually all motorized routes in Labyrinth Canyon and its tributaries other than graded roads, and most Labyrinth Canyon overlooks despite being hundreds of feet above the river. Some of the closures weren’t proposed or analyzed by any of the alternatives, which is one just one aspect of the 2023 TMP that contradicts existing policy.

If you’re wondering why the BLM would close so many routes on such tenuous grounds, it may be useful to know that the Moab Field Office drafted a more reasonable decision a half-year earlier. It got held up at higher levels, and the obvious conclusion is that administrative appointees dictated many more closures, leaving the Moab Field Office scrambling to rationalize this decision. Nationwide the BLM and USFS were designed to be decentralized so they could better understand the local land, uses, and communities. They were also designed to professionalize land management to effectively implement FLPMA and NFMA as congress directed. Yet, in RwR’s twenty-two years of experience, the agencies have become increasingly politicized by the executive branch, leaving local knowledge and managerial expertise in its wake. This trend has greatly accelerated under the current administration, which ultimately does no service for the integrity of the agencies or the pursuit of their missions, and which inadvertently bolsters the case for transferring the management from federal to state agencies.

Presumably the solution involves all three branches of government but, in Labyrinth Rims, the immediate work is to challenge the 2023 TMP. Along with RwR and its partners, the 2023 TMP has been challenged by the State of Utah, BRC et al., and ORBA et al. The approaches differ, such as exhausting an administrative appeal or going to federal court, which provides diversity in the common effort. Plus each group brings different skills, such as RwR’s twenty-two-year history of assisting managers in Labyrinth Rims, as exhibited in our petition for a stay of the closures while the IBLA reviews our appeal.

As is typical of the IBLA, our petition for a stay was denied, denying that RwR and its partners would be irreversibly harmed by closing the routes while the appeal is reviewed. Further the BLM argued that many other routes remain open, yet many of those routes are graded roads that don’t provide a trail-like experience, or they no longer connect for looping opportunities, or they provide no substitute for the quality of experience that could be enjoyed on primitive routes in unique settings like Labyrinth Canyon and its tributaries.

Our petition merely previews our challenge of the 2023 TMP, itself, yet it already demonstrates the solid merit of our case. If you’d like more details about the 2023 TMP and its broader context, check out this audio update from CORE.

To maintain public access, all groups challenging the 2023 TMP are consistent, yet each one is providing unique value that warrants your support. If you care about motorized trails between Moab and Green River, support national groups like BRC, statewide groups like TPA, and local groups like RwR. RwR depends on the support of Moab trail enthusiasts who visit from all over the world, and we need it now more than ever.

Ashley National Forest Land Management Plan (LMP)

This past year, the Ashley National Forest released its Proposed LMP that establishes the guardrails for travel management planning over the coming decades. As RwR explained in our 2022 YIR, the Draft LMP went too far in effectively making half the forest off-limits for recreation planners to even consider adding a motorized route. Adding routes is already unlikely to survive the NEPA process of an Environmental Assessment, so planners need a wider area to start with, and there’s no compelling reason for the agency to eliminate half the acreage at the outset.

This year, when the Proposed LMP didn’t significantly improve the previous draft, RwR / TPA / COHVCO objected and attended the agency’s “resolution” meeting. Unfortunately the agency dismissed our objection since the Proposed LMP actually increases the acreage to be zoned as motorized (specifically a motorized class of the Recreation Opportunity Spectrum (ROS)). First of all, an increase of 1% is insignificant. Second, the current LMP and its resulting TMP fail to meet the current needs of motorized recreationists ranging from e-bike riders to campers, so the status quo is inadequate. Third, nothing in the current LMP from 1986 makes the non-motorized zones exclusively non-motorized, but the Proposed LMP does so by establishing a desired condition that non-motorized zones be “free of motorized recreation travel.” Fourth, not only do the non-motorized zones cover the more desirable half of the forest, but they create long walls that prevent connectivity. For example, multiple non-motorized zones stretch from the High Uintas Wilderness to the Uintah and Ouray Reservation, preventing any east-west travel. They also stretch for twenty miles along the Daggett and Uintah county line, preventing north-south travel for a loop west of US-191. Fifth, they preemptively prohibit motorized trails that were carefully proposed by the trails master plans of Daggett, Uintah, and Duchesne counties. The Proposed LMP even expands non-motorized zones to cover old roads that all three of the county trails master plans proposed to reopen. We hope the agency will come to its senses and approve an LMP that allows the county trails master plans and other proposals in the coming decades to get a fair shake.

Manti-La Sal National Forest LMP

This past year, the Manti-La Sal National Forest released its Draft LMP that, like the Ashley LMP, establishes the guardrails for travel management planning over the coming decades. As RwR explained in our 2021 YIR, the preliminary Draft LMP was far too restrictive and, in the 2023 Draft LMP, none of the action alternatives are significantly better. In fact, they’re all worse than the Proposed LMP for the Ashley, as the Draft LMP for the Manti-La Sal makes non-motorized ROS zoning more severe and recommends many areas to be designated as wilderness to boot. All of the action alternatives add ROS standards and guidelines that make non-motorized zones entirely non-motorized, which might be fine if they didn’t also zone as non-motorized virtually everything above 9,000’ in the La Sal Mountains southeast of Moab other than narrow corridors for the currently-designated roads. All action alternatives of the Draft LMP zone as non-motorized even larger swaths including lower elevations elsewhere, such as the northern Manti north of Fairview, and the northern San Pitch southeast of Nephi. The Draft LMP proposes a less dramatic expansion of non-motorized zones in the southern Manti and Abajo Mountains, but most of the Abajo Mountains are currently designated as part of the 1.36 million-acre Bears Ears National Monument, which seems likely to be extremely restrictive if the draft plan for Grand Staircase-Escalante National Monument is any indication. Such restrictions would displace many forest uses to the remainder of the Abajos, making it far more difficult to sustainably provide for an ample quantity, quality, and variety of trails.

On top of the ROS zoning for summer recreation, the new ROS zoning for winter recreation would prohibit over-snow vehicles (OSVs) from traveling across huge parts of the high country in all three action alternatives. Setting aside individual basins such as Gold Basin and individual cross-country ski trail systems such as the one east of Geyser Pass is perfectly appropriate, but there’s simply no present or future need to close anywhere near half the terrain above 9,000’ (which OSV travel depends upon for consistent snowpack), especially when winter non-motorized zones prevent connectivity of winter motorized zones as outlined in local news coverage.

Alternative D and even Alternative B (that appears to be the agency’s preferred alternative) propose many Recommended Wilderness Areas (RWAs), which these alternatives propose to manage much like designated wilderness unless and until Congress designates them as wilderness or releases them. RWAs generally prohibit OSV recreation, mechanized recreation like mountain biking, and even more developed forms of non-mechanized recreation. RWAs generally make it more difficult to effectively manage for water resources, forest health, and fuels to prevent wildfire of catastrophic intensity.

RwR and the TPA submitted extensive comments to the USFS, with the guidance of Balance Resources as well as great input from Scott Jones of Land Access Consulting. Fortunately all three counties that have the most area in Manti-La Sal National Forest (Sanpete, Emery, and San Juan) commented in support of all forms of recreation by suggesting that new restrictions to motorized access be scaled back.

The Grand County Commission drafted a letter that implied support of the most restrictive ROS zones and expansive RWAs, so many residents expressed their concerns at both rounds of Citizens To Be Heard, including me (Clif) for five minutes. Then the commissioners discussed the LMP for half an hour.

The following week, the majority of the commission voted in favor of a letter that still pushed for non-motorized ROS zones to cover at least half the forest in summer, and for analysis of the wilderness expansion groups’ “conservation alternative,” which would in fact be more of a re-wilding alternative. Nevertheless Grand County’s final letter was slightly more accommodating of managerial flexibility for summer motorized recreation, significantly more accommodating of winter motorized recreation, and more neutral about RWAs. While the county had every reason to support ROS zones more similar to the current LMP so the USFS can effectively manage all forms of recreation, we appreciate the commissioners’ increasing contemplation, resulting in a letter that’s more reasonable than the one from 2021. Hopefully the USFS will respond to the majority of counties and recreation groups by proposing an LMP that’s based on Alternative A and Alternative C to best achieve the agency’s mission of multiple use and sustained yield rather than acting like it’s a national park.

Grand Staircase-Escalante National Monument (GSENM)

In 1996 nearly two-million acres of southwest Utah was proclaimed as GSENM by the president at the objection of the entire congressional delegation from Utah. The proclamation was pushed by wilderness expansion groups, particularly those funded by a Swiss billionaire, yet it promised to be managed much differently than a national park. This promise was never kept, although the 2017 scaling back of the monument boundaries and new management plans both inside and outside of the monument came closer to providing the proactive management that would be needed to achieve a more inclusive conservation.

These legitimate improvements to management plans were discarded when the scaling back of boundaries was reversed in 2021. This past year, the BLM released a Draft Resource Management Plan (RMP) that would restrict diverse recreation opportunities far more than any RMP since the monument’s proclamation in 1996. RwR and its partners submitted our concerns that all action alternatives of the Draft RMP would make motorized access of GSENM as sparse as it is in Canyonlands National Park. A Nixon executive order directs federal land managers to designate areas as open to cross-country travel, limited to existing / designated routes, or closed to OHVs. The “limited” OHV area designation typically limits motorized travel to less than 1% of the area, so the “closed” designation is only appropriate where agencies are certain that motorized travel (including all types of e-bikes) should occur in 0% of the area for decades to come. For this reason, currently just a few-thousand acres of GSENM have a “closed” OHV area designation.

However now all the action alternatives would apply this designation to the majority of the monument, straitjacketing some routes by running “closed” area boundaries to the route’s edge while outright closing other routes despite decades of work by the counties and local OHV clubs. None of these ramifications are acknowledged, let alone analyzed, by the Draft RMP. Even in most areas where no route is currently designated open, a “closed” area designation is uncalled for because motorized travel shouldn’t be prohibited categorically, however rare additions to the TMP may be.

Clearly the widespread “closed” area designations are laying the foundation to manage most of the monument as wilderness. The wilderness expansion groups that pushed for monument proclamation didn’t want to deal with congress for legitimate designation of wilderness, and the current administration seems more willing than any of its predecessors to bypass congress in creating de facto wilderness, which naturally erodes the legitimacy of proclaiming the monument in the first place. Wilderness expansion groups spend millions of dollars on PR campaigns that tout wilderness designation as the solution to virtually all problems that arise but, in the long run, this type of management across massive portions of public lands is not the most effective way to protect the “objects” that monument proclamations espoused.

Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument (BNIKAFGCNM)

While the Draft RMP for GSENM proposes to severely limit access to recreation, another nearly one-million acres immediately south of there is proclaimed to be another national monument, and its supporters deny that this proclamation will limit access to recreation. In other words, the new monument on the Arizona side of the state line is billed as no threat to recreation access while the old monument of the Utah side of the state line is imminently threatening some current and all future motorized access across nearly one-million acres of GSENM.

The proverbial traveling salesman moves to another town so the truth won’t catch up to him, but the BNIKAFGCNM is just a couple miles away from GSENM, so the rhetoric of monuments is running into the reality of them. BNIKAFGCNM surrounds Grand Canyon National Park as a buffer, but so did previous monuments, resulting in buffers of buffers. BNIKAFGCNM also extends northeast to Vermillion Cliffs NM, which was proclaimed as a buffer of GSENM, so the buffer of one “protected” area is bumping into the buffer of another “protected” area, and the Arizona Strip is stripped of nearly any land to be managed by the apparently old-fashioned form of conservation in which land can be enjoyed by a wide variety of recreation, and in which other resources can actually be used to whatever degree is sustainable.

In the latest round of monument proclamations, the northern Kaibab Plateau was spared because new mining has already been banned there, while areas east and west of there are now proclaimed as BNIKAFGCNM primarily to prevent uranium mining. Perhaps mining operations should be further reformed, but the wilderness expansion groups’ goal of prohibiting mining across millions of acres in northern Arizona (and southern Utah alike) is ironic because power sources like small-scale nuclear plants are apparently the most viable alternatives to fossil fuels. The president said that proclaiming BNIKAFGCNM will help combat climate change, yet it appears to be doing the opposite.

Another Orwellian selling point of BNIKAFGCNM is that it will advance indigenous access and tribal sovereignty by implying co-management, although such an offer actually requires congress, and expanding reservation boundaries would be more straightforward. In proclaiming BNIKAFGCNM, the president correctly pointed out that tribes had been kicked out of Grand Canyon National Park, but then he claimed that the new proclamation will enable them to come back. Actually the proclamation will reduce access and, even if tribal members are granted more access than others, it’ll still be less than the current level of access. Further, even if the tribes achieved co-management, the decision space for management is greatly shrunk by the proclamation. Monuments aren’t just limiting to the public, they’re limiting to managers. Being co-managers of an area that’s tied up like wilderness actually provides less sovereignty than being one of several partners for an area that allows more managerial flexibility. In this way, BNIKAFGCNM and Bears Ears National Monument just make more empty promises to indigenous communities. Alternatively, enabling land management to improve its efficiency and productivity could truly help all Americans thrive.

I had the privilege of working on the North Rim of Grand Canyon for a couple seasons, and enjoyed recreating in areas now proclaimed as BNIKAFGCNM, riding old roads like the one from the ranch at Cane Canyon up to Telephone Hill (i.e. climbing from House Rock Valley up the monocline onto the Kaibab Plateau). So long as it’s a national monument, the dream of future generations riding electric motorcycles up primitive routes like that one seems like nothing more than a mirage.

Conclusion

Even if presidential proclamations were justified to make national monuments out of the remaining “unprotected” areas (as if they’re not already “protected” in many ways), it’s undeniable that they fuel partisanship and unilateral land management (i.e. executive fiat). To maintain perspective, it’s important to be guided by the ideals of democracy and truth, recognizing that “we” have not always been entirely right and “they” have not always been entirely wrong. While advocating for recreation access that’s vital to our well-being, in turn we must advocate respect for the natural and cultural resources that are equally vital. As challenges mount, we’re encouraged by the potential resources that come along with the rising popularity of outdoor recreation. Many thanks to the many folks who support RwR, and may everyone have a happy ride into the new year.

Clif Koontz
Executive Director
Ride with Respect
395 McGill Avenue
Moab, Utah 84532
435-259-8334 land

USFS Hahns Peak Bears Ears Ranger District
Att: Samuel Hahn 925 Weiss Road
Steamboat Springs, CO 80487

RE: Walton Peak East Vegetation Management Project

Dear Mr. Hahn;

Please accept this correspondence as the support of the above Organizations for the Walton Peak East Vegetation Management project in its current unaltered form. The Organizations believe the project is a significant step towards ensuring a healthy and vibrant ecosystem that is also fire resistant throughout the planning area. This fire resistance is becoming a larger and larger priority every year in the state of Colorado as evidenced by historically large fires in the area, such as the Mullen Fire in Southern Wyoming and the East Troublesome fire that almost destroyed the Grand Lake Community. While these fires were devastating, we are also aware that these fires could have been much worse and these expanded impacts were only limited by the systemic use of vegetation management projects such as the Walton Peak effort.

The Organizations are aware that there are possible impacts to motorized access that could result from the Proposal, as the area is globally recognized destination for motorized recreational opportunities, especially in the winter. The scoping notice is unclear reading the general site of the Proposal for treatment, proposed location of haul roads and timing of the project. As a result, The Organizations would ask that you coordinate with local snowmobile and motorized interests to minimize the possible impacts to these dispersed motorized opportunities that may result from hauling of logs or plowing of roads. We have seen significant benefits from this type of coordination. Coordination such as this aids the contractors performing the work, as public traffic may be removed from haul roads/routes and public would be avoiding use of parking lots that might be used as headers for timber activities each of these making timber efforts quicker and safer. This type of coordination has been hugely successful in other locations in the State as it maintains recreational access to areas that are being used for timber efforts when timber is not being actively harvested or through the temporary reroute of access routes in or through the area for the duration of the project. We also believe that coordination with motorized interests on simple issues such as this could restore trust and communication between the interest groups and lands managers. This restoration could be as valuable to this relationship as the fuels treatment effort is to forest health.

Unfortunately, The Organizations are compelled to address several issues that were raised at the public meeting on the Proposal. The Organizations support the Proposal in its current form, which is proceeding under a Categorical Exclusion for NEPA purposes under the authority of the Healthy Forest Restoration Act of 2014. We support this decision and direction of analysis as it is quick and efficient. Most of the concerns that we heard raised in the public meeting included, such as altering travel management in the area or possible impacts to endangered lynx that might be in the area, would significantly alter the Project. Permanent alteration of the travel management in the area would remove the project from one that could proceed with a CE and would be opposed by us for this reason. We would also like to avoid reopening several painful travel and recreation decisions that have occurred on Rabbit Ears Pass over the last several years. We would hope that at some point, other issues on the district could be addressed.

The final issue that was raised at the public meeting was possible short and long term impacts to the Canadian Lynx as a result from the project. We would like to call your attention to the 2023 Lynx Assessment Update and 2023 Lynx Recovery Plan that were released this month.¹ The newly released Lynx management documents continue to address the lack of relationship between lynx and recreation started in the 2013 Lynx Conservation Assessment and Strrategy. The 2023 documents step even further away from previous concerns about possible impacts from dispersed recreation with the following conclusions:

“As we concluded in the 2017 SSA, we find no evidence that habitat loss and fragmentation from anthropogenic activities (e.g., energy development, recreation, urban development and other sources of commercial development) have had population-level negative consequences for resident lynx in the DPS range or resulted in extirpation of lynx from areas that previously supported persistent resident populations. However, recent and projected increases in wildfire size, frequency, and intensity and its potential to permanently convert lynx habitat to non-habitat in some places, could result in future loss and fragmentation of lynx habitats at biologically meaningful scales.”²

This 2023 Lynx Assessment and Recovery plans provide extensive discussion and analysis about the positive impacts that projects such as the Proposal could have on lynx and why projects like this should improve lynx habitat significantly. At some point, the Organizations would also like ot be able to undertake a project without having to worry about lynx management questions as CPW has found the Canadian Lynx population in the state to be well above goals for the reintroduction for decades.

The Organizations would like to reaffirm our support for the project in its current form and again ask for coordination of the project with motorized interests over the course of the project to avoid unintended impacts to recreational activity in the planning area. Please feel free to contact Scott Jones, Esq. or Edward Calhoun if you should wish to discuss any of the issues that have been raised in these comments further. Scott Jones contact information is phone 518-281-5810; email Scott.jones46@yahoo.com or Edward Calhoun contact information is phone 970-819-7006 or via email at ecalhoun55@gmail.com

Respectfully Submitted,

Scott Jones, Esq.
COHVCO/TPA Authorized Representative
CSA Executive Director

Edward Calhoun
CSA President
Routt Powder Riders

Chad Hixon
Executive Director
Trails Preservation Alliance

¹ A complete copy of the 2023 Assessment, recovery plan and related documents is available here: Canada lynx draft  recovery plan available for public review & comment | U.S. Fish & Wildlife Service (fws.gov)

² U.S. Fish and Wildlife Service. 2023. Species Status Assessment Addendum for the Canada lynx (Lynx canadensis) Contiguous United States Distinct Population Segment. December 2023. Denver, Colorado. 122 pp @ Pg 46.

Three Peaks Travel Management Environmental Assessment Comments

Dear Planning Team Members:

Please accept this correspondence as input on the Three Peaks Travel Management Environmental Assessment. Our Organizations have been involved in stewardship, volunteerism, education, and motorized advocacy within the Royal George Field Office (RGFO) for many years.

1. Who We Are

Before addressing our specific comments, we believe a 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 to protect and promote 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 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 advocates 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 Offroad Enterprise (CORE) is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. CORE has 15 adopted trails spread throughout the Salida, Gunnison, and Leadville Districts and has accumulated several thousand volunteer hours for the BLM and Forest Service over the past few years.

2. Discussion

We are thankful for the opportunity to submit comments on this proposal considering the designated travel network. We advocate for and recommend Alternative C, which includes the most public access available for all uses being considered. Alternative C meets the Purpose and Need of this project by considering and managing potential impacts while still allowing much of the existing public access to be maintained. We recommend constructing route SP2215 to enable public access near Jackson Hull Mountain. We recommend escalating levels of management, which Alternative C provides while still allowing reasonable public access.

3. Alternatives

The Purpose and Need of this project are simple in that the desire is to create a designated route network where one has not been established beyond restricting travel to existing routes. This stated need has arrived from staff and public observations for managing travel to protect resources. Generally, we do not oppose seasonal closures for motorized use as proposed in Alternative C or Alternative D. There is no noticeable difference in managing adverse impacts from the preferred Alternative D and the ‘Motorized’ Alternative C. However, Alternative D restricts public access much more than Alternative C.

Issue Statement #1 of this proposal would not change the eligibility (+5,000 acres) for Lands with Wilderness Characteristics (LWC), and this proposal deals solely with Travel Management Designations of existing routes, so there is no substantial or negative effect. Additionally, the RGFO proposed updated Resource Management Plan [1] states in section 3.1.13, page 3-22:

No existing law or policy grants priority to preservation of lands with wilderness characteristics over other resources or resource uses, so BLM has the discretion to determine management of these areas in consideration of other priorities.

Because the routes already exist in these two regions and the ground is already disturbed due to the presence of these routes, they should remain open to public access and not be closed to prioritize LWC. Routes within the project area can also be used by the public to access the LWC for quiet recreation.

Issue Statement #2 of this proposal states this:

This alternative would exhibit the greatest impact to vegetation resources, but not to the level as in the current situation. Alternative C installs management and controls route proliferation and thereby should help most areas achieve Standards for Public Land Health in the long-term.

When considering the reasonably foreseeable trends in the analysis area and the current situation, changes under Alternative C could result in improvements in land health and greater plant community resistance when compared to the No Action Alternative. The cumulative effects associated with this alternative are likely to have a beneficial impact to vegetation resources across the larger area as a whole.

Alternative C is a viable option to mitigate vegetation loss because of the route designations, signage, and management that will take place once a decision is reached. This option should be the first level of management prescribed instead of route closure. 

Issue Statement #3 of this proposal acknowledges the most opportunities for the most public land visitors to this area. Quite users will still have numerous options for hiking and other forms of activity with only 21 miles of designated routes in Alternative C, especially considering the two LWC areas that encompass well over 5,000 acres each within the project area and by maintaining the existing public access to those two areas.

Issue Statement #4 of this proposal deals with potential dispersed camping and potential range management conflicts. If these issues were to be realized, the RGFO could implement designated dispersed camping as it has in other areas of the RGFO to mitigate camping-based conflicts.

Issue Statement #5 of this proposal for Alternative C contains contradictory language:

Alternative C establishes a designated route network for all inventoried routes in the analysis area. Under this alternative, 21.8 miles remain open, 2.1 miles are open with seasonal restrictions and 12.5 miles closed or limited to administrative use only. In addition, .3 miles of new road construction would occur under this alternative. Like Alternative D, this alternative establishes a designated route network for all inventoried routes based on Management Strategies that would minimize impacts to forest resources and includes management that inhibits the potential for disturbance through route proliferation. However, fewer miles of existing roads are closed, and this increased route availability would allow for greater access to legal wood product harvesting. The cumulative effects of Alternative C is likely to have a negative impact on forest resources.

This statement contains no negative impacts for Alternative C until the last sentence, which arbitrarily claims, “The cumulative effects of Alternative C is likely to have a negative impact on forest resources,” despite the entire paragraph preceding that statement detailing the exact opposite likely outcome including establishing a designated route network minimizes impacts to forest resources and inhibits the potential for route proliferation, which would allow greater access to legal wood product harvesting. Alternative C should be chosen to enable initial route designation management to address issues while allowing public access.

Issue Statement #6 of this proposal has a separate discussion item (IV.) in these comments.

Issue Statement #7 of this proposal contains no on-ground examples of negative impacts in the planning area or for Alternative C. The proposal only cites hypothetical ‘potential impacts‘ as a justification for the closure of route SP3206.

Alternative C largely mirrors the same impacts as Alternative A. The major difference is that Alternative C limits 11.3 miles of routes to Administrative Use only. Cumulatively, this decrease in public motor vehicle traffic could have beneficial impacts to wetlands health, road conditions, and decrease the sediment/contaminant/ invasive species loading into water bodies. Also, Alternative C would close route SP3206, an area of with a myriad of potential impacts on water resources.

Nothing specific in this section suggests Alternative D as a better option for the public when compared to Alternative C. We would also ask the RGFO, how are you measuring and quantifying the production and transport of sediment into water bodies? Additionally, is sedimentation above an acceptable level? This seems to be a very subjective opinion and perhaps observation based upon casual surveys by staff.

Issue Statement #8 of this proposal concerning soil and erosion: if Alternative C were chosen for this proposal, it would manage potential issues.

Alternative C largely mirrors the same impacts as Alternative A. The major difference is that Alternative C limits 11.3 miles of routes to Administrative Use only. Cumulatively, this decrease in public motor vehicle traffic could be beneficial for mitigating the soil resources impacts on the route itself and potential, sediment and contaminant transport from runoff. Most notably, Alternative C limits route SP 1054 to Administrative Use Only, while Alternative B designates the route as closed. While this is a route with potential impacts to soil resources, crossing cobbly loams at moderately high grades, limited the public motorized access should be sufficient in mitigating soil resource impacts at this location.

The rationale suggests that Alternative C can mitigate potential soil resource impacts, and should issues occur in the future, the RGFO could certainly escalate management to address future problems should they rise to a problematic level. Technical solutions specific to erosion control could be implemented as a management prescription, if necessary, in the project area. Erosion and sedimentation are natural processes often needed to maintain a balanced hydraulic system. All erosion and sediment transport are not necessarily a problem, harmful, or a threat to natural systems. Many natural ecosystems/wetlands need and require sediment and the movement of sediment to remain healthy and in balance. How much sediment in the project area is too much, and how is this determined? Simply claiming erosion and sediment transport as a negative potential is insufficient to remove public access from public routes. These potential issues should be shown to be present on the ground, above problematic thresholds, and beyond the use of technical solutions to control and mitigate adverse sediment production generated by roads, trails, or parking areas before restricting public access.

The issue statements also contain no substance beyond speculation and no substantial impacts to LWC to prioritize Alternative D over Alternative C in this proposal. Alternative C addresses all the current potential concerns while still allowing public access to continue. Should issues arise, the RGFO can still implement further management prescriptions to address hypothetical problems. We recommend Alternative C to accomplish the Purpose and Need of this project while still balancing public access.

4. Doomsday Scenarios

We are concerned with the language contained in Issue Statement #6. This language implies the RGFO is considering a doomsday scenario or worst case possible as a wildlife justification. It states Alternative C is not much better than the No Action Alternative for wildlife sustainability:

This alternative is second only to the No Action alternative regarding negative impacts to big game priority habitats. The potential will be high for human disturbance on elk, mule deer, pronghorn, and bighorn sheep during their most sensitive periods. As discussed in section 5.6.1 this can lead to reduced winter survival and reproductive success, with potential for broad-scale impacts.

The No Action Alternative section referenced in Alternative C contains this language:

Increased disturbance to wildlife and reduced habitat quality would likely have negative impacts on important wildlife population parameters such as overwinter survival, reproduction, and recruitment of young. As a result, decline and stagnated growth of big game populations could occur. It is important to consider that declines in the previously mentioned population parameters (i.e. survival, reproduction, recruitment) can take years to cause population-level declines that can be detected with herd surveys. Further, since the effects of human disturbance compound other negative factors, and the effects of all those factors are complex, the effects will likely not be linear. For example, the effects of increased human disturbance in elk severe winter range may not be exhibited at a population scale until they coincide with a severe winter and cause extraordinarily high winter die-off in a herd. Thus, a stable big game population that has experienced increased recreation within priority habitats for a small number of years cannot be considered evidence of a lack of negative effects of human disturbance.

The chosen hypothetical RGFO included in this proposal is an attempt to steer the decision towards Alternative D. Worst Case hypothetical scenarios for wildlife populations are not part of a NEPA review, and the courts have consistently rejected these arguments. The Supreme Court’s ruling on Roberson v. Methow Valley Citizens Council [2] stated:

‘In sum, we conclude that NEPA does not require a fully developed plan detailing what steps will be taken to mitigate adverse environmental impacts and does not require a “worst case analysis.”‘

Additionally, the recent DC Court of Appeals ruling for Maine Lobstermen’s Association v. State of Main Department of Marine Resources [3] stated:

‘In this case, we decided whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the “benefit of the doubt” to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not. The ESA and the implementing regulations call for an empirical judgment about what is “likely”. The Service’s role as an expert is undermined, not furthered, when it distorts that scientific judgement by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.’

A review of the herd management plans that overlap with the project area does not justify this worst-case scenario as a likely reality. The plans all mention, or list, recreation as a concern and one that should be considered by Land Management Agencies when making decisions, but nothing documented in the herd plan rises to the level of stating that continued recreation will lead to a population level decline due to cumulative recreation in the big game herds within the project area. The highest recorded documented impact for the E-22 Elk Herd [4] was for a locoweed impact resulting in locoism that killed 200 elk in summer. This impact was attributed to low moisture for that year and had no connection to recreation. Still, the E-22 Elk Plan has been above the management objective number since 1990, and that plan states explicitly:

Those population objectives are considered to be the most reasonable goal for this herd based on the quantity and quality of available habitat for elk, the recreational, economic and political desires of the people of the state, the level of conflicts between the elk herd and agricultural producers in the area, and the comments of land management agencies.

Adding a seasonal close to all routes within the project area deemed to be sensitive areas can accomplish the Purpose and Need of this project, provide protections to wildlife, and still allow public access.

The Mule Deer plan referenced in section 5.6.1 of the proposal leaves out some specific details and data in that document.

Recently completed Herd Management Plans for local bighorn sheep and mule deer herds point to increasing recreation and development as primary threats to those populations (Grigg 2020, Deschenes and Lamont 2022).

This section is worded to suggest that recreation is a landscape-level threat to the Mule Deer population in D-16 and is on par with the loss of habitat due to development. The Herd management plan for D-16 [5] does not state this implied fact and clearly outlines the most significant threat in the management plan is cougar predation.

Since 1999, we have radio collared 1,086 adult does and 898 fawns in D-16 to examine annual adult survival and winter fawn mortality. From 1999-present, averaging across all years, the leading known cause of both doe (6.4%) and fawn (7.5%) mortality has been cougar predation. Cougar predation has ranged from 0 to 60% (avg. 28%) of the total mortality for does and 0 to 64% (avg. 32%) of the total mortality for fawns. However, it is not known if cougar predation is limiting population growth in D-16, or if this population is experiencing density-dependence due to habitat limitations.

The D-16 Mule Deer Management Plan states multiple times that this population may be habitat-limited, which might also account for the numbers. The Management Plan does list recreation as a concern and under the significant issues. Still, it does not mention recommendation specifics for recreation except to work with management agencies to balance wildlife needs with recreation.

The RBS-9 Big Horn Management Plan [6] contains conflicting statements about the herd size, objectives, issues, and recreation. The beginning of the plan states:

The current population estimate in RBS-9 is stable at approximately animals. Key limiting factors for this population include the potential for disease outbreaks. Considering bighorn distribution, winter range capability, population density/density dependence, and the potential risk of contact with domestic livestock, our Wildlife Commission approved management objective is: Population target 375 bighorns (range 350-400)

The plan then states:

Strategies for obtaining objectives and addressing issues: Both preferred alternatives are consistent with CPW’s current management in RBS-9. Therefore, CPW does not expect a change in harvest management with this plan. The most significant issues for RBS-9 are limited winter range and the potential for disease transmission from domestic livestock, particularly from domestic sheep and goats (George et al. 2009). There are currently no active domestic sheep summer grazing allotments in this DAU, however, there are hobby livestock operations that provide a continual threat of disease transmission. CPW will continue to work with stakeholders and land management agencies to mitigate and address these issues.

Referencing recreation, the plan states:

The RBS-9 herd has become especially impacted by an increase in dispersed camping, mountain biking, and hiking. In general, recreation has increased significantly over the last 10 years in the RBS-9 area.

The plan also references mountain biking and river activities because the plan area encompasses the Arkansas River Recreation Area. The herd numbers, however, have stayed consistent for the last 38 years. This would suggest two things. First, the growing level of recreation has not yet harmed herd numbers. Second, utilizing seasonal closures on motorized routes during sensitive times would certainly address future concerns from motorized recreation. The Alternative D justification in this proposal reinforces this suggestion:

Timing restrictions are used as the primary tool for protecting big game priority habitats under this alternative because they reduce human disturbance during the most sensitive periods, while still allowing motorized access at other times of the year.

Why could Alternative C not provide this same benefit to wildlife if timing restrictions were used instead of outright route closure? After carefully reviewing the herd plans and the justification provided by the RGFO, we recommend Alternative C be adopted with seasonal closures to balance public access with wildlife concerns. We disagree with the doomsday scenario proposed and do not support the justification and management prescription in Alternative D to avoid such a, worst-case, hypothetical situation.

We would also like to point out the changed condition on the ground in Colorado as of December 18, 2023. CPW reintroduced Grey Wolves in Grand County. This event may seem far from the project area, but CPW has said they plan on releasing 30-50 wolves to begin the ‘sustainable population’ required by Prop 114. A reintroduction area along Hwy 50 in Gunnison County is contained in the Reintroduction Plan [7]. There is one county removed (Chaffee) from the project area in Fremont County, and considering the mileage wolves travel, it seems only a matter of time before wolf activity is detected in Fremont County and the project area. The CPW Wolf Reintroduction plan has this information:

“Within Colorado, preliminary release locations are constrained by several geographic criteria. State statute requires that wolves be released only west of the Continental Divide (CRS 33-2-105.8). Fritts et al., (2001) found that wolves released in Yellowstone and central Idaho moved substantial distances in the months immediately after release (average distance was approximately 50 miles ranging from approximately 22 to 140 miles from the release sites).”

Wolves can be expected in and around Freemont County in the future. This reintroduction will affect Elk, Mule Deer, and Big Horn Sheep behaviors, survival rates, and herd numbers. This proposal does not address this changed condition and assumes wildlife numbers will remain constant if recreation is limited in the project area. This assumption is a significant flaw in this proposal and should be considered during this planning process.

Wolves in Colorado will alter the big game landscape by changing animal and herd behavior beyond what is accounted for in the herd plans, migration corridors, winter range, and population estimates. Some research, contradictory to this proposal, suggests that ungulates will seek out human areas to escape predation. Bacon and Boyce 2016 [8] suggest Big Game Animals (Ungulates) will flee wildlife protection areas when a large new predator is reintroduced into an area.

The Study Introduction contains this information:

“Historically, large predators in North America were perceived as competition for food and a risk to the safety of settlers and their livestock (Kellert et al. 1996). Predators were heavily hunted, trapped and poisoned to the point where species such as the cougar (Puma concolor), wolf (Canis lupus), and grizzly bear (Ursus arctos) were extirpated from much of their original range (Berger 1998; Terborgh et al. 2000). In the absence of predators, ungulates and other wildlife minimize their risk of human encounters by avoiding areas used for agriculture and recreation (Cuiti et al. 2012). Our activities, however, also can alter hidden interactions that exist within an ecosystem, sometimes to the point of disassembling entire natural communities (Hebblewhite et al. 2005; Ripple et al. 2014).”

“Indirect effects that predators have on other ecosystem components merit careful attention because they can have implications for the way that human-wildlife conflicts might re-ignite.”

The Discussion Section Contains this information:

“The shift in distribution of cervids, particularly mule deer, during the decade of cougar re-establishment demonstrates that cougars have restored a landscape of fear in the Cypress Hills, causing prey to leave the security of the protected park and forest cover that now harbors a highly effective predator. During the period of our study, radiotelemetry data for Cougars showed that the predator remained primarily within the confines of the protected forest (Figure 1). Analysis of aerial ungulate surveys showed that deer and elk shifted their distribution outside the Park during the same time period, when cougar presence was the only significant change in the region.”

“Prey that had lived with little fear of large predators for ca. 40-50 generations must now trade-off between avoiding humans and avoiding predators. Indeed, in some instances, humans might act as a shield against cougar predation because they present less risk of mortality for prey (Berger 2007) and because cougars are deterred from human-dominated areas (Morrison et al. 2014).”

This study mentions Wolves but directly looks at Cougars as the large predator reintroduction study species. Indeed, the Colorado Wolf Reintroduction will have similar results for this state’s Elk and Deer populations. The Yellowstone Wolf Reintroduction documents state that a single Wolf kills about 2 Elk per Wolf per month to sustain itself over a calendar year encompassing all four seasons. That will drive Elk and Deer numbers down in Colorado, and we don’t yet know how our big game animals will react to a reintroduced large predator.

Will they stay in the protected areas (this proposal) we set up for them, or will they move towards human activities to escape the reintroduced large predators? If Wolves are released close to Chaffee County or eventually make it to Fremont County, no pre-release wildlife protection and big game planning will be valid after reintroduction. This changed condition should not preclude public access to the project area to maintain a pre-wolf environment and pre-wolf objectives. Alternative C with this changed condition, it is still the best management option to include seasonal closures while maintaining public access. The RGFO will then still need to be vigilant and monitor wolf expansion and movement to track the changes to big game herds and numbers that will result. Ironically, this research may also paint a different picture relative to the cougar predation problems documented in D-16. It is entirely possible that human activity and development are preventing further population-level declines by cougars for Mule Deer.

5. Escalating Management

Our organizations generally favor escalating management to mitigate existing and hypothetical future issues. This allows the RGFO to take steps at managing impacts while also testing management prescriptions without implementing more restrictive measures that may not be needed. More restrictions could be implemented, but we recommend reserving those options when lesser implementation fails with documentation. The Preferred Alternative D in this proposal adopts route closures that may not be needed to accomplish the Purpose and Need. If seasonal closures are implemented as proposed, closing more routes to public access beyond that of seasonal closures for wildlife concerns is more restrictive than needed in this proposal.

The court held standard for management decisions based on wildlife concerns has shown to be what is ‘likely‘ to occur. It is more likely that implementing minimal management prescriptions to increase the level of management (this proposal) above currently restricting travel to existing routes and by designating a public route system, wildlife population numbers will continue to align with the management objectives and the specifics outlined in the Herd Management Plans. Wolve reintroduction is an unknown, but it is also likely that negative impacts on a population level scale will result in ungulates due to wolf predation. Once this likely scenario occurs, human activity may contribute to ungulate survival.

Implementing escalating management is our recommendation, and we support Alternative C with the construction of route SP2215 and the re-evaluation of SP3206. Further restrictions should not be considered until negative impacts are documented on the ground and beyond acceptable levels.

6. Recommendation

We thoroughly recommend Alternative C with the construction of SP2215 and the re-evaluation of SP3206 to allow public access to Jackson Hull Mountain and its vicinity. Alternative C does not pose management challenges beyond Alternative D. The same management strategies included in this proposal can be implemented while keeping 20 miles of public routes open. Public access and wildlife can coexist, and doomsday scenarios should not be used as an evaluation tool in a proposal that could permanently remove public access. Escalating management is a successful strategy, and route closure should be the end of that spectrum when all other management prescription options have been utilized and exhausted. Wolves in Colorado will pose new management problems for wildlife population numbers, and wildlife could look to human activity as a protective mechanism in contrast to human avoidance at all costs, as presented in this proposal.

We are generally disappointed in the direction of this proposal when compared to meeting the needs of public access, dispersed camping, and all the additional recreational experiences that take place on public roads that are difficult to quantify fully. This proposal acknowledges the public’s growing desire to experience public land via public access and the desire to engage in multi-day adventures by incorporating dispersed camping. However, this proposal does not analyze a single alternative that could expand public access opportunities and does nothing to address and satisfy the desire for dispersed camping. This proposal discusses hypothetical negative impacts of the public being allowed to recreate in the project area and discusses hypothetical dispersed camping impacts and dispersed camping conflicts but does nothing to propose a new public route with designated dispersed campsites to help fulfill this public desire. Aside from Alternative A being the control variable to measure proposed Alternatives against, nothing discussed in this proposal might help meet public needs besides closing routes to the public or restricting areas. This fundamental flaw assumes that the only reasonable management strategies to apply in the future require restriction and closure. This pathway can’t help but prejudice a project outcome by assuming public use on public land is a net negative. Closure should not be used as a management prescription until alternative options are exhausted. We recommend against unnecessary restriction and recommend Alternative C with additional route construction be chosen as the only viable Alternative contained within this proposal.

Marcus Trusty
CORE President

Scott Jones, Esq.
COHVCO Authorized Representative

Chad Hixon
TPA Executive Director

[1] Proposed Eastern Colorado Resource Management Plan & Environmental Impact Statement – Volume 1: Executive Summary and Chapters 1-5, Royal Gorge Field Office, 2023.

[2] Robertson, Chief of the Forest Service ET AL. v. Methow Valley Citizens Council ET AL., 1989

[3] United States Court of Appeals for the District of Columbia Circuit. Maine Lobstermen’s Association, State of Maine Department of Marine Resources, ET AL. v. National Marine Fisheries Service, ET AL., 2023.

[4] Buffalo Peaks Elk Management Plan Extension, Data Analysis Unit E-22, Jamin Grigg, 2018.

[5] Cripple Creek Deer Herd Management Plan Extension, Data Analysis Unit D-16, Jamin Grigg, 2020.

[6] Arkansas River Bighorn Sheep Herd Management Plan, Data Analysis Unit RBS-9, Bryan Lamont and Kyle Deschenes, 2023.

[7] Colorado Parks & Wildlife, Colorado Wolf Restoration and Management Plan, 2022.

[8] Landscape of Fear for Naive Prey: Ungulates Flee Protected Area to Avoid a Re-established Predator, Michelle Bacon and Mark Boyce, 2016

Manti-La Sal National Forest Supervisor’s Office
Attn: Forest Plan Revision
599 West Price River Drive
Price, UT, 84501

Re: Manti-La Sal National Forest Land and Resource Management Plan #50121

Dear Planning Team:

Ride with Respect (RwR) and Trails Preservation Alliance (TPA) submit these comments regarding the Manti-La Sal National Forest (MLSNF) Draft Land Management Plan and associated EIS (“the Proposal”).

1. Introduction

The Proposal resolves few of the concerns we have raised by comments submitted in 2021, 2020, and other years going all the way back to 2004 with the original scoping period to revise the MLSNF LMP.

We support Alternative A of the Proposal. Although elements of Alternative C may have merit, in sum we cannot support any of the other alternatives. Overall the Proposal casts only a negative light on all forms of recreation and provides almost nothing addressing the benefits to communities and the public more generally from recreation.

We could support some of the concepts and land allocations in Alternative C, but even it concerning new standards such as trails being limited to 66″ in width or new limitations on recreational activities above 11,000′ in elevation. The lack of detailed analysis of these changes makes substantive comments on the standards difficult to comment upon as there is no insight provided regarding the challenges being addressed or how the decision was made to use this course of action over others. As an example of why detailed analysis is needed, both of the aforementioned standards greatly concern the snowmobile community as grooming requires wider routes and most riding in Utah is limited to high altitude.

Meaningful public comment is difficult on the Proposal, because standards are inconsistently addressed in the Proposal. They fail to answer basic questions around implementation. Many inventory efforts were identified from which to develop management decisions rather than planning decisions. Inventory terms are used interchangeably in what appears to be a management decision.

Alternative D is completely untenable and unworkable. It conflicts with numerous legal requirements and ignores the fact of the growing population in the planning area. The inventory randomly identifies select characteristics mixed with random unsubstantiated standards of usage. A coherent vision is lacking that can be understood and applied by the future managers and the public effectively. This deficiency must be addressed.

Specific to the Recreation Opportunity Spectrum (ROS) zones, all of the action alternatives would severely limit future forest planners from effectively providing an ample quantity, quality, and variety of motorized trails to accommodate the current level of interest, let alone future interest in light of the electrification of vehicles and other technological advances. Given the increasing scrutiny of subsequent travel management planning, zoning designations are only appropriate to provide modest guardrails, thus empowering state of the art planning to gain the visitor compliance so essential to conserving resources.

2. Recognize our organizations as important stakeholders in the MLSNF.

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. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. Over 750 individuals have contributed money or volunteered time to the organization. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands. Our work in cooperation with the USFS has ranged from rerouting trails by hand to installing rolling dips by machine. In the Monticello Ranger District, we’ve contributed a few thousand hours of trail work including on Camp Jackson, Wagon Wheel Gap, Spring Creek, Robertson Pasture, Red Ledges Red Ledges Access, Aspen Flat, Indian Creek, Shay Mountain, Shay Ridge, Vega Creek, and Gooseberry. In the Moab Ranger District, we’ve contributed a few hundred hours of trail work including on the Lower Twomile ATV Loop, Blue Lake Road, Geyser Pass Road, Pole Canyon, Brumley-Dorry, Miners Basin, and Beaver Basin. Collectively RwR and the TPA will be referred to as “The Organizations” for purposes of these comments.

3. Carefully consider these comments and those of other entities.

Please note that the Organizations have not encouraged others to submit MLSNF LMP comments in the past two years. We could have generated hundreds of unique and substantive comments because thousands of motorized trail enthusiasts are quite interested in current and future recreational opportunities of the MLSNF. Instead of reading hundreds of other letters, we ask you to give particular consideration to our comments, which speak for hundreds of our contributors and thousands of motorized trail riders.

We also ask you to particularly consider comments of the three counties in which the MLSNF contains the greatest acreage, which are Sanpete, Emery, and San Juan. Comments from San Juan County were especially attentive of the DEIS ramifications to its citizens, and the Organizations generally support the comments from all three counties.

Finally the Utah Snowmobile Association thoughtfully described its perspective, and constructively offered solutions that are proportional to the scale of resource conflicts, so we generally support the comments from this group as well. While the organizations focus on summertime recreation, many of our contributors participate in OSV travel, particularly with the rise of ski and track kits for off-highway motorcycles.

4. The Overall Management Model is deeply problematic and flawed as it immediately conflicts with the 2012 USFS Planning Rule.

There is no map reflecting management decisions for the forest under the various alternatives. We found the GIS map provided with the Proposal difficult to navigate, providing at best confusing information and failing to provide various inventory areas on the interactive map. Clicking the management area designation layer rarely provided any additional information about the decision. The most common designation we found for a management area was as follows:

“3 – managed for multiple uses – subject to extractive (e.g. mining or logging) or OHV use”

When these management area designations were identified the GIS map moved to highlighting the entire district or area and often included areas that are Congressionally designated for other non-multiple use areas, such as Wilderness. Obviously, the conflict with the summary above and anything close to Wilderness or recommended Wilderness is immediate. We can locate a wide range of issue specific inventories of characteristics on the Forest provided via a PDF map, but these are not management decisions and should not be interchanged. The confusion of decisions and inventory processes only compounds and confuses any analysis provided.

This preliminary failure is in direct conflict with the 2012 USFS Planning Rule, which specifically requires the identification and designation of management areas and boundaries as follows:

“(d) Management areas or geographic areas. Every plan must have management areas or geographic areas or both. The plan may identify designated or recommended designated areas as management areas or geographic areas.”^[1]

Conceptually this provision viewed in isolation would allow designation of just ROS type characteristics, but the other parts of the 2012 Planning Rule require management decisions that are related to the management area, as follows:

“Management area. A land area identified within the planning area that has the same set of applicable plan components. A management area does not have to be spatially contiguous.”[2]

When clicking onto Management Area boundaries in the GIS mapping tool, the entire Ranger District is immediately highlighted. While the political boundaries of a Ranger District might be a management boundary, they cannot be altered in the Plan, rendering this type of interpretation irrelevant to the effort. Applying the term management area in this manner fails to address that federal regulations require similar management components to be present in the management area.  We are unable to find any map or other resource to identify where management area boundaries might be or how they change across the various inventory of characteristics.

In its place, the Recreation Opportunity Spectrum (“ROS”) that apparently is supposed to guide some management decisions at the Forest level and subsequent site specific NEPA. This departure from existing management designations and causes significant concern, as ROS is only one of many inventories of characteristics that have been prepared on the Forest, such as Roadless Areas, Visual Quality Objectives, possible Wilderness, wild and scenic corridors to name a few. The Proposal fails to address how to resolve conflicts among inventories of characteristics.

5. The Proposal fails to comply with CEQ regulations for an environmental impact statement.

NEPA regulations require an EIS to provide all information under the following standards:

“…It shall provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment… Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses…”^[3]

The regulations include development of the Council on Environmental Quality (CEQ), which expands upon the detailed statement theory for planning purposes. The CEQ regulations state the need for the quality information being provided as part of this relationship as follows:

“It shall provide full and fair discussion of significant environmental impacts and shall inform decision makers and the public of reasonable alternatives that would avoid or minimize adverse impacts or enhance the quality of the human environment. Agencies shall focus on significant environmental issues and alternatives”[4]

The poor quality of information that supports confused inventory and decision standards is a problem. The impacts are compounded by the fact many huge recreational changes are simply never mentioned. CEQ regulations continue in requiring analysis as follows:

“Discussions of impacts are to be proportionate to their significance”[5]

Given that areas like Moab heavily rely on recreational access to public lands for basic economic viability of local communities, standards that keep major historical users from accessing the Forest are significant both to the users and the communities. These concerns are addressed in more detail subsequently.

6. Often desired conditions and other standards are directly in conflict with other management standards.

The Organizations must address the immense barrier that the inconsistencies in the Proposal pose to the creation of a substantive comment addressing a possible concern around the standard and complying with NEPA requirements.  These inconsistencies are further confused by the use of inventory concepts as management standards. These types of allocations of inventories are significant standards.  They present important issues that must be addressed and have not been. This type of decision making is specifically required by federal forest service planning regulations, as follows:

“(e) Plan components. Plan components guide future project and activity decisionmaking. The plan must indicate whether specific plan components apply to the entire plan area, to specific management areas or geographic areas, or to other areas as identified in the plan.”[6]

No analysis is provided on how to allocate the above absolute standard across the numerous characteristics of provided inventories. This situation occurs throughout the Proposal and is exemplified by the following situation where two entirely different management issues are simply merged into a desired condition without analysis. Desired condition #6 in the Proposal provides as follows:

“06 Road and motorized trail use do not impact wildlife winter range and quiet winter recreation opportunities.”[7]

The Organizations are immediately concerned that the above desired condition has absolutely zero flexibility it is application.  It has been our experience that standards such as this are immensely difficult to implement.  Our concerns on how this will be implemented are compounded when we ask questions like “How does this align with the various Recreational Opportunity Spectrum based standards and goals in the Proposal?” While avoiding all impact to quiet recreation may be appropriate in a Primitive setting, we question how this standard could ever be achieved in other ROS settings.

Often the basis of winter travel is around parking lots and groomed routes as these are the only viable means of access to the backcountry. These are issues that should be directly addressed in site specific winter travel and not anecdotally in an LMP, as there are significant issues involved in these standards that are not addressed at all in the Proposal. This viability of access to the backcountry is a major concern as the only user groups that pay to maintain public access in the winter are the motorized users through their voluntary registration fees paid to the State. Usage of these funds to maintain exclusive access for nonmotorized groups is generally prohibited under state law. While shared usage may result from the motorized funding, the motorized community is not obligated to provide access to areas they can’t legally access.

This shared usage of groomed winter trails is often unacceptable to many in the nonmotorized community, and often access is sought to be provided to address this issue. This attempt at management fails to recognize that all areas of the forest are available to nonmotorized recreation. While they may be available, they are not accessible. This is not a management issue that should be addressed through standards and guidelines in a LMP, this is a funding issue that should be addressed with the development of a voluntary user registration fee for nonmotorized usages. We would support such a program but we are not aware of any effort to this scale being undertaken in the country. While only two of the standards are mentioned in this portion of these comments, this problem is prevalent throughout the plan. Addressing each instance of this type of problem is simply too large for a public comment.

7. The Proposal fails to provide any economic analysis of decision and alternatives being proposed.

Another concern is the lack of any economic analysis with the Proposal. There are no updates to the 2017 Economic assessment for the planning area, which was exceptionally brief to begin with. Huge changes in the demographics and economic activity have occurred across the country as a result of 2020.  More timely economic analysis information is needed. Federal regulations require this. But not even a draft economic report is available. This is a foundational flaw in the Proposal as an economic assessment and economic analysis are significantly different efforts that may not be used interchangeably. USFS regulations specifically require economic analysis of possible impacts to economic contributions to the surrounding communities from LMPs in planning rule as follows:

219.8 Sustainability.

The plan must provide for social, economic, and ecological sustainability within Forest Service authority and consistent with the inherent capability of the plan area, as follows:

(b) Social and economic sustainability. The plan must include plan components, including standards or guidelines, to guide the plan area’s contribution to social and economic sustainability, taking into account:

(1) Social, cultural, and economic conditions relevant to the area influenced by the plan.

The need for economic analysis of management alternatives is woven throughout the planning rule with consistently high levels of detail:

“(a) Integrated resource management for multiple use. The plan must include plan components, including standards or guidelines, for integrated resource management to provide for ecosystem services and multiple uses in the plan area. When developing plan components for integrated resource management, to the extent relevant to the plan area and the public participation process and the requirements of §§ 219.7, 219.8, 219.9, and 219.11, the responsible official shall consider:

(7) Reasonably foreseeable risks to ecological, social, and economic sustainability.”^[8]

These highly specific provisions of the 2012 Planning Rule cannot be satisfied with a document that was completed prior to the development of any alternatives to be analyzed for the planning area. Relevant court rulings have concluded:

“an EIS serves two functions. First, it ensures that agencies take a hard look at the environmental effects of proposed projects. Second, it ensures that relevant information regarding proposed projects is available to members of the public so that they may play a role in the decision making process. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. For an EIS to serve these functions, it is essential that the EIS not be based on misleading economic assumptions.”^[9]

Without an economic analysis we and the rest of the public cannot understand underlying economic assumptions of the Proposal. This is a foundational NEPA flaw compounded by the fact management area boundaries cannot be derived from the Proposal, which precludes any third-party analysis or forecasting of possible impacts.

8. The Proposal has not analyzed compliance with EO 14008 issued on January 27, 2021 by President Joe Biden mandates improved recreational access to public lands and associated economic benefits.

The failure to provide a management area map with clear management standards and an economic analysis violates various Executive Orders on the need to improve recreational access and associated economic contributions to small communities. President Biden’s January 27, 2021 Executive Order # 14008 has specific goals of improving access to public lands and improving the economic contributions from recreation to local communities. §214 of EO 14008 mandates improved recreational access as follows:

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

215 of this EO is as follows:

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

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

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

The Proposal fails to meet the spirit and letter of these Executive Orders.  Defiance against these EOs is signaled by the failure to provide the public with maps of various management areas and economic analysis of the impacts of these decisions being provided.

9. The Goals of the Congressionally mandated USFS National Trails Strategy are not satisfied with the Proposal.

The USFS has been developing the National Sustainable Trails Strategy for the last several years,^[10] to comply with the mandate of the National Trails Stewardship Act of 2016.^[11] The National Trails Strategy clearly identified goal of improving sustainable access and partnerships as a goal of this Congressionally mandated effort. This strategy also sought to strategically change how the USFS looks at partners and sustainability of routes and given the Proposal will guide the sustainable access and partnerships on the Forest for the foreseeable future. The Organizations submit that the planning process that has been applied is not the new look at sustainability and partnerships that was envisioned by the National Trails Stewardship Act.

The Organizations are commenting on this issue given the fact this effort is simply never mentioned in the Proposal despite the Congressional mandate. The conflicting direction of the Proposal to the goals and objectives of the Legislation and National Trails Strategy is also concerning. The National Strategy clearly states this as follows:

“Strategic Intent

The strategic intent of the strategy is to embrace and inspire a different way of thinking—and doing—to create sustainable change where grassroots initiative meets leader intent. The combined effort and momentum of many minds and hands will move the trails community, as a whole, toward shared solutions. This strategy builds on the many examples from across the country where the Forest Service, its partners, and the greater trails community have successfully embraced a community-driven and locally sustainable trail system model.”^[12]

The Utah OHV program is probably the largest trail partner with USFS and this program is predominately funded from the voluntarily created OHV registration program. This significant direct funding probably makes the motorized trail network the most sustainable on the MLSNF.  These types of contributions were recently recognized by the USFS planners as part of the sustainable trails effort as follows:

“The engagement and efforts of motorized groups have improved the condition of trails across National Forest System lands and we look forward to continued engagement with the motorized community as part of the Trail Challenge…. During phase one, I welcome collaboration to adequately track, monitor, and acknowledge accomplishments by the motorized community while identifying lessons learned to incorporate into future phases of the Trail Challenge.”^[13]

While many interests struggle to provide a single maintenance crew, the motorized community now provides significant annual funding through the OHV Program, which exponentially improves management abilities every day. Rather than fixing trails with shovels these grants are buying skid-steers for USFS employees. It is anticipated that this funding stream will significantly grow over the life of the Proposal. This is a model of collaboration moving forward, and the Proposal should avoid any unintended negative impacts to this collaboration.

President Nixon’s 1972 travel management Executive Orders have led to over 50 years of scrutiny of every motorized route available for usage, producing the most analyzed and sustainable trail network for any type of resource usage. No other recreational activity on the Forest has been subjected to this level of scrutiny and analysis. Yet the Proposal arbitrarily fails to utilize that important work, to support a sustainable trails network that aligns with the national efforts. The sad reality is USFS is radically altering how it views and achieves sustainability with partners. NEPA requires that the implications of such a radical alteration of strategy be addressed and undergo rigorous analysis in the Proposal, to transparently expose to the public how the Proposal conflicts with the requirements of the National Trails Strategy and National Sustainable Trails Act. The failure to do this is a glaring NEPA inadequacy.

10. Economic analysis of management alternatives is a critical step in the planning process.

USFS collaborative documents developed with partners, also show the need for economic contribution calculations and economic impacts, which the Proposal fails to provide. These partner documents require a balance of numerous factors that directly impact the spending habits of those sought to be studied. The Western Governors Associations’ recreational economic contributions study show the required complexity of any economic determinations and the required size of the calculations, as follows:

“How is “economic impact” calculated? Many people might think of a consumer buying equipment – a tent, fishing pole, ATV, bicycle, boat, snowboard or rifle. However, the impact is much more complex than the manufacture and sale of gear and vehicles. Gas stations, restaurants, hotels, river guides and ski resorts benefit from outdoor recreation. In total, equipment and travel expenditures represent billions in direct sales that create jobs, income, tax revenues and other economic benefits.”^[14]

The sheer number of pages required in most economic impact reports, just to explain the analysis process used to arrive at any final figure of any economic contribution, is notable. Given the complexity of these calculations, that analysis must be provided as part of the planning process.

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

“Several managers stated that one of the biggest challenges they face is “the undervaluation of outdoor recreation” relative to other land uses.”^[15]

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

“Good planning not only results in better recreation opportunities, it also helps address and avoid major management challenges – such as limited funding, changing recreation types, user conflicts, and degradation of the assets. Managers with the most successfully managed recreation assets emphasized that they planned early and often. They assessed their opportunities and constraints, prioritized their assets, and defined visions.”^[16]

The Organizations believe our concerns regarding the Proposal failure of economic analysis and those expressed in the Western Governor’s Get Out West report virtually mirror each other. This concern must be addressed prior to finalization of the Proposal in order to avoid increases to many other management issues that were sought to be minimized.

11. The 66″ trail width restrictions are arbitrary and not supported by any rationale or analysis.

We oppose the proposed standard to limit all trails to 66″ in width, given this width restriction is arbitrary in nature and completely lacks any analysis to support the decision and conflicts with federal regulations on this issue. We understand that many pushed for width and weight restrictions in the development of both of these national regulations, and there were VERY good reasons why these types of standards were not included in the national rule generally. The EIS never addresses what management issue the new arbitrary standard seeks to resolve, nor why the new width limitation is appropriate. Nor does the EIS analyze the fact the summer and winter trails are handled under different regulatory processes. Nor does the EIS explain why the width restriction is sought to be developed in the LMP rather than the travel management plan. This is in complete violation of NEPA and conflicts with numerous federal regulations that have already reviewed concepts around minimum and maximum widths for trails and roads have chosen not to restrict trail width. After years of detailed analysis and research these regulations determined that rather than limiting maximum trail width, a minimum width for roads and routes was the only restriction appropriate, given the huge number of uses of these resources that may or may not even be within the travel management rule. We submit that these routes provide basic access for issues like firefighting, and these issues must be reviewed prior to ANY width restriction being placed in the LMP. These are issues that simply are not addressed in the Proposal and not scoped in such a manner to develop meaningful public input on the issue.

Again, trail width is more appropriately addressed in a forest-wide travel plan, not the LMP. This naturally follows from the fact that trail width issues are outside the scope of the new planning rule but specifically addressed in the National Travel management Rule. Development of the national travel management rule and its governance of trail width issues took years to develop and resulted in thousands of pages of analysis. This renders plainly arbitrary the Proposal’s forest level planning effort to apply a 66″ width restriction to all trails, summer and winter, as follows:

“06 To provide off-highway vehicle recreation opportunities other than those provided on roads, motorized off-highway vehicle trails should be built no wider than 66 inches, unless greater widths are necessary to mitigate other resource impacts or provide for user safety.”^[17]

This entirely new standard is simply never analyzed or reviewed in the EIS. We see here, to put it as mildly and respectfully as possible, an absurd violation of NEPA. Width restriction issues like this should be addressed in the travel management process and not the LMP.

The failure of the Proposal to start planning based on an accurate summary of existing decisions, analysis and federal regulations is evidenced by the fact the Proposal recommends an entirely new travel management process and reopens many decisions already reviewed and declined to be applied. Summer travel management rule regulations requires all routes less than 50″ to be a trail as follows:

“a motor vehicle route over 50 inches wide, unless identified and managed as a trail.”

By comparison there is no upper limit on the width of a route that can be managed as a trail, which is provided for as follows:

“a route 50 inches or less in width or a route over 50 inches wide that is identified and managed as a trail.”^[18]

The National travel management rule clearly provides that all trails are routes, but not all routes are trails. Under the regulations, any route less than 50″ in width must be a trail but there is no cap on the width of trails. The compelling need for this type of management structure is provided by the basic public safety that is provided for those less than familiar with the USFS designation process. This ensures that the public will not be allowed to use over the highway vehicles on something that cannot support the usage under any circumstances. The idea of a full size over the road motor vehicle trying to use a designated singletrack trail limited to 36″ in width did not appeal to anyone. This was immediately seen as a public safety issue. The safety implications exponentially expand when issues such as emergency responses to the area for search and rescue efforts or wildland firefighting are addressed. Has anyone reviewed the local ability of search and rescue to access the backcountry once they have to travel long distances on foot? How does this restriction impact the ability of a search and rescue team to recover injured members of the public? The Organizations are also intimately aware that the proposed width restrictions also create a monumental issue when issues like permittee access and private lands access are analyzed. Further explanation on the basis of the width restrictions is available in the summer travel management rule.

While the summer travel management rule only provides a floor for the width of routes, it also provides specific reasoning for the permissibility of a trail to be wider than 50″ or 66″. This allows the use of wider vehicles for recreational purposes is specifically addressed in the USFS TMP handbook as follows:

Generally speaking, NFSTs “present different challenges and require different skills from driving on roads,” with trails “characterized by narrower treads and clearing limits, slower speeds, narrower turning radii, and a more intimate experience with the surrounding landscape than roads designed for motor vehicles.”^[19]

While the USFS summer travel rule distinguishes between roads and trails for limited management decisions, the USFS winter travel rule clearly states that groomed trails can occur on routes, roads, or trails while retaining local authority to address site specific issues as follows:

“(a) General. Over-snow vehicle use on National Forest System roads, on  National Forest System  trails, and in areas on National Forest System lands shall be designated by the Responsible Official on administrative units or Ranger Districts, or parts of administrative units or Ranger Districts, of the National Forest System where snowfall is adequate for that use to occur, and, if appropriate, shall be designated by class of vehicle and time of year, provided that the following uses are exempted from these decisions…”^[20]

Again, we object to the Proposed width restriction as it directly conflicts with federal regulations on winter travel as well as all routes are trails in the winter and winter routes are separately designated. We are familiar with why the federal regulations are structured in the manner they are, and we oppose any alteration of these standards without significant analysis of possible impacts. The only analysis we are able to identify in the EIS is provided as follows:

“Motorized trail opportunities include a mix of single track, 50 inches or less, and 66 inches or less routes. Demand for additional motorized trails persists, including for trails that can accommodate wider vehicles, as well as over-snow opportunities. Demand for non-motorized opportunities to accommodate an evolving suite of technologies and activities is also present, as population and public diversity also increases.”^[21]

We cannot discern any basis or need for the standard from this paragraph. The isolated insertion of these standards in the MLSNF LMP without any analysis is NEPA inadequate and well short of the needed analysis of this issue. Again these are issues that must be analyzed and have not been.

12. The 66″ trail width cap will prohibit all full size vehicle trails on the Forest.

We oppose inclusion of the 66″-wide trail cap as this will prohibit any full-size trail from existing on the Forest. These types of issues, pertaining to the requirement of landscape-level trail width and weight restrictions, were addressed in great detail in the development of the summer travel management rule. There is a good reason why the summer travel management rule contains no width restrictions. The need to recognize this issue in comments is deeply concerning to the Organizations, and this concern only expands when the proximity of the forest to globally recognized full size vehicle trails is recognized. The planning area has been a global destination for this type of activity for more than 75 years, and the common width for a jeep is around 68″. Most full-size pickup trucks are around 72″ wide. If USFS wants to keep full size vehicles away, that warrants a much greater deal of travel management planning and NEPA work than the couple of passing references made by the Proposal.

13. 66″-wide trails for OSVs will functionally prohibit many types of usage and any winter grooming on the forest.

The conflict of the 66″-wide trail width limit with winter travel management creates even further concerns and conflicts. The Proposal consolidates two separate and distinct planning efforts in the limited amount of discussion that is provided:

“Motorized trail opportunities include a mix of single track, 50 inches or less, and 66 inches or less routes. Demand for additional motorized trails persists, including for trails that can accommodate wider vehicles, as well as over-snow opportunities. Demand for non-motorized opportunities to accommodate an evolving suite of technologies and activities is also present, as population and public diversity also increases.”^[22]

This consolidation of the two existing processes and decisions is a violation of national NEPA and regulations as USFS regulations clearly and directly identify that OHV and OSV management are two separate and distinct regulatory processes.

This distinction is an issue that has been successfully litigated against the USFS, and an issue that we are passionate about as many of our Organizations intervened in defense of the USFS.^[23] Given our years of efforts that have already gone into addressing the difference between summer and winter travel, the Organizations are opposed to any decisions that could result in further litigation of this issue. We are concerned that the Proposal completely fails to address these regulations as separate and distinct travel management processes.

We are also very concerned that the 66″ width restriction on trails will prohibit grooming of winter routes despite a long history of these efforts occurring on the forest.^[24]  This problem should have been recognized in development of the Proposal, as most winter grooming equipment is 10′ to 14′ in width. As a result, implementation of the proposed width restriction would functionally prohibit grooming on the forest. These are serious concerns and impacts that arise in the Proposal, for which there is no discussion or analysis to support the decision.

14. Elevation based management standards are arbitrary and again not thoroughly analyzed.

Elevation based management standards for recreation reveal an arbitrary bias against recreation. The standard again is provided without any discussion of management issues sought to be addressed or other tools that might be used to achieve these goals. The elevational-based management standard is outlined in the Proposal as follows: ^[25]

The Proposal entirely fails to provide any analysis of this standard or the management issue that it is seeking to resolve. Basic definitions of what could be included as a recreational impact are not provided.  Issues like this are often fraught with ongoing conflicts between interests. Is a visible trail a recreational impact? Is a visible trailhead a recreational impact? Are educational materials and basic infrastructures, such as shelters or GPS towers, a recreational impact? If a route has a recreational function and other functions that might now even be managed by the Forest Service, how will these issues be resolved? We are aware of numerous routes that access cell phone towers, 911 repeaters, connect to water related infrastructures and other permitted activities that may also have some type of recreational component to their usage. In these situations, how do these possible recreational impacts relate to the ROS and other management decisions that may not even be made by the USFS. If sites are found to be recreational impacts how will this capacity be replaced in order to comply with mandates like Executive Order 14008.

The basic questions that we have presented above may easily be pushed aside as abstract or remote, until other provisions of the Proposal are reviewed.  While the Proposal seeks to mitigate recreational impacts in alpine areas, the Proposal also requires the installation of signage in these areas.  This is required as follows: ^[26]

We question why a standard addressing such a small, site-specific issue is worthy in a LMP discussion, especially when so many large-scale concerns are overlooked and deemed not worthy in the LMP.

The failure of the analysis in the Plan leaves fundamental conflicts unresolved or even recognized. Questions such as “How does this standard relate to winter recreation as most of the winter recreational opportunities on the forest are at or above 11,000′?” are critically important to the winter motorized recreational community. The Organizations have participated in numerous winter travel planning efforts in California and are aware that elevation was used to determine when OSV could and could not be used on these forests. These forests would include the Tahoe National Forest, Plumas National Forest, Lake Tahoe Basin Management Unit, El Dorado National Forest and the Lassen National Forests. In these discussions, elevation was thought to be an easy way to address various issues. Despite having a far more narrowly and specifically defined challenge on these forests after extensive discussion, these decisions were withdrawn for a wide range of reasons as once the standard was reviewed the standard would have created more issues than it resolved. We encourage the MLSNF to review the winter travel EIS on these other forests to gain a more complete understanding of the challenges associated with management based on elevation.

15. Recreational Visitation data is merely mentioned in the Proposal.

Throughout the Proposal, information about the types and volumes of visitation to the forest simply are never provided in any manner. This lack of information is fairly apparent when compared to other forests we have been involved. We are concerned that there appears to be very little visitation available, and we are also concerned that the data may not be accurate. This type of information is critical in determining the proper allocation of recreational opportunities or infrastructure on the forest. This is concerning as the Proposal is seeking to guide these resources on the forest over the next several decades, but also there are also new resources available that will allow this information to be compiled quickly and accurately. The Organizations are currently working on several forests to obtain cell phone-based visitation data from sources like Google and others to accurately determine visitation on the forest. At best, when these resources are obtained for the MLSNF and they don’t align in any manner with the assumption made in the Proposal, this will heavily impact public support for and faith in the Proposals.

This lack of integrity in planning that can result from poor to non-existent information necessary for planning is a direct violation of the new NEPA provisions added in the Fiscal Responsibility Act of 2023.  These NEPA provisions are now specifically applying generally-applicable data-quality standards that have historically been present to the NEPA process. While these new NEPA specific requirements are recent additions specifically to NEPA, these provisions require application of statutory requirements that have been in place for decades including Crowdsourcing and Citizen Science Act of 2016 and Data Quality Act of 2001. As an example, the Data Quality Act provided the following general standards for all government efforts:

”(D) ensure the professional integrity, including scientific integrity, of the discussion and analysis in an environmental document;

”(E) make use of reliable data and resources in carrying out this Act; ^[27]

The NEPA provisions added in the Fiscal Responsibility Act of 2023 further clarify the applicability of existing provisions of the Data Quality Act and Crowdsourcing and Citizen Science Act to the NEPA process as follows:

”(3) SOURCES OF INFORMATION.—In making a  determination under this subsection, an agency—

”(A) may make use of any reliable data source; and

(B) is not required to undertake new scientific or technical research unless the new scientific or technical research is essential to a reasoned choice among alternatives, and the overall costs and time frame of obtaining it are not unreasonable.”[28]

We are unable to identify any information in the EIS that satisfies these requirements with regard to recreational visitation or how this information supports the decisions made in the Proposal. The Proposal should extend ROS designations until such time as sufficient high-quality information is available to support designations. As we have previously mentioned, we have serious concerns regarding the quality of visitation to the forest.  This issue appears exceptionally problematic for all recreational usages.

16. The Organizations oppose new USFS Recommended Wilderness Areas in Utah the MLSNF.

The Organizations oppose any new recommended wilderness areas in the planning area. The recommended wilderness areas in Alternative B and Alternative D tend to be too large, virtually abutting trails and roads (even some graded roads), effectively creating permanent walls against even bicycle travel. They are somewhat redundant with other restrictions, such as Primitive ROS zones and Research Natural Areas. The difference is that, until Congress acts on these specific locations, they would apparently be managed like wilderness.

By constricting the development and maintenance of even non-mechanized trails to a standard that many non-mechanized recreationists prefer, these recommended wilderness areas would displace some non-mechanized recreation and all mechanized trail development to motorized areas, which may in turn displace motorized trail recreation to graded road corridors or off the forest completely. Recommending wilderness designation per se is generally not needed to provide for non-mechanized recreation, and it actually tends to hinder the agency’s ability to manage for a diversity of recreation opportunities.

On top of recreational concerns, the Organizations urge you to consider potential consequences to forest health and fire management. One example is MA-RECWILD-ST-04, which states “Timber harvest in a recommended wilderness area shall only occur if required to maintain the wilderness characteristics of that area.” Thus timber harvesting (which is often the only affordable option) couldn’t be permitted for vital goals such as forest health or public safety, only for furthering the social construct of “wilderness characteristics.” Another example is MA-RECWILD-GD-01, which states “To maintain wilderness characteristics, fire suppression actions should apply minimum impact strategies and tactics, except when direct attack is needed to protect life, adjacent property, or to mitigate risks to responders.” Thus recommended wilderness would even constrain fire crews except in the most dire of emergencies.

Last but certainly not least, existing law prohibits the USFS from proposing let alone managing for new recommended wilderness areas. In the Utah Wilderness Act of 1984, PUBLIC LAW 98-428, September. 28, 1984, Congress determined in Section 101(a)(1) of the Act that all USFS lands in Utah not designated as wilderness “should be available for nonwilderness multiple uses under the land management planning process, other applicable laws and the provisions of this Act.” The express stated purpose of the Act was to “insure that certain other national forest system lands in the State of Utah [other than designated as wilderness in that Act] be available for nonwilderness multiple uses.”  Id. at Section 201(2). See also Section 201(b)(3) of the Act.

Congress in the Utah Wilderness Act of 1984 also expressly upheld, ratified, and adopted the Department of Agriculture’s second roadless area review and evaluation program (RARE II) for all forest system lands in the State of Utah, Section 201(a)(1), despite how the Courts may have rule against RARE II for purposes of the rest of the country, and Congress expressly declared in Section 201(b)(1) and (b)(2) of the Act:

(b) On the basis of such review [RARE II], the Congress hereby determines and directs that—

(1) without passing on the question of the legal and factual sufficiency of the RARE II final environmental statement (dated January 1979) with respect to national forest lands in States other than Utah, such statement shall not be subject to judicial review with respect to national forest system lands in the State of Utah;

(2) with respect to the national forest system lands in the State of Utah which were reviewed by the Department of Agriculture in the second roadless area review and evaluation (RARE II) and those lands referred to in subsection (d), that review and evaluation or reference shall be deemed for the purposes of the initial land management plans required for such lands by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976, to be an adequate consideration of the 16 u s e 1600 suitability of such lands for inclusion in the National Wilderness Preservation System and the Department of Agriculture shall not be required to review the wilderness option prior to the revisions of the plans, but shall review the wilderness option when the plans are revised…

In Section 201(b)(5) of the Act, Congress declared:

(5) unless expressly authorized by Congress, Department of Agriculture shall not conduct any further statewide roadless area review and evaluation of national forest system lands in the State of Utah for the purpose of determining their suitability for inclusion in the National Wilderness Preservation System.

These provisions of the 1984 Utah Wilderness Act render void and invalid the 2001 Roadless Area Review conducted under the purported administrative authority of the 2001 Roadless Area Conservation Rule (“2001 RACR”). The 2001 RACR is an invalid exercise of administrative authority that is clearly trumped by the legislative authority of Congress which forbade additional statewide roadless area review and evaluation of Forest System lands in Utah. Any suggested wilderness addition in the Proposal is therefore legally barred as the fruit of the poison (illegal) tree, namely the 2001 designation of roadless areas, made illegal and without authority by the above-cited provisions of the 1984 Utah Wilderness Act. Hence we are adamantly opposed to the Proposal’s suggested additions to wilderness since they stem from the 2001 roadless area inventory and designation.

17. The Proposal must address Inventoried Roadless Areas (IRAs) in compliance with existing law.

See our discussion the Recommended Wilderness Areas section, which is incorporated here. The Proposal apparently sticks with boundaries of IRA designations from the 2001 inventory. While this is better than using even more recent inventories, to be legally and fundamentally correct, you should not exceed the designations recognized in the 1979 RARE II inventory of roadless areas. (See our Exhibit 1 enclosed.) This was the only inventory properly sanctioned and authorized by Congressional legislation. If going with the RARE II designations is not preferred because they were subject to court challenge, then the only legally right thing to do is have no roadless area designations. This would be the legally correct application, although we have no objection to the RARE II designations, but we do oppose the 2001 Roadless Area Conservation Rule (“Roadless Rule”) designations.

In fact we view as without legal authority the application of the Roadless Rule in the Proposal. The Roadless Rule is not a legitimate basis for inventorying characteristics on USFS lands. It provides exceptionally limited management direction, and unauthorized direction at that. The Proposal treats unauthorized Roadless Rule inventory analysis as if it were somehow a management decision itself. There is no legal basis for this. We see bright-line distinctions between inventories on the forest, and management decisions on the forest. The Roadless Rule is a unique, unauthoritative, and contentious designation, and we oppose using this tool in an LMP, particularly when the Roadless Rule itself states that it is not for LMP use.

18. The Proposal fails to recognize that the current motorized trail opportunities in the MLSNF is drastically insufficient.

The Proposal reports 322 miles of motorized trails, which isn’t enough for any of the ranger districts (RDs), most notably the Moab RD that has 2 miles. The Proposal highlights 53 miles of motorized trails constructed since the current plan was approved in 1986, but fails to acknowledge that the majority of existing full-size vehicle routes and singletrack trails have since been closed to motorized use, primarily by the 1991 Travel Management Plan (TMP). The TMP was insufficient in 1991 and, since motorized recreation has grown exponentially, it’s even far less sufficient today (let alone in the future).

Granted some modest alternatives exist, such as state land east of the La Sal peaks that provides a small network of primitive roads / ATV trails / motorized singletrack. However providing diverse recreation opportunities isn’t central to mission of the Utah Trust Lands Administration, while it is central to that of the U.S. Forest Service (USFS) mission, as illustrated by the slogan “land of many uses.” Some private lands are also nearby, but the MLSNF encompasses by far the most high-elevation land within range of nearby communities.

The three counties that have the most MLSNF acreage are San Juan, Sanpete, and Emery. All three counties have expressed concern about the Proposal constraining the maintenance and improvement of opportunities for OHV riding and snowmobiling as key components of the local residents’ livelihood and quality of life.

19. The Proposal fails to recognize that adding well-designed motorized trail opportunities is less costly in the long run.

The Proposal refers to the cost of maintaining trails, but well-designed trails often require virtually no ongoing tread work, and the corridor work can be performed by volunteers. For example, in partnership with MLSNF, the Organizations rerouted large sections of the motorized singletracks in the Abajo Mountains (Robertson Pasture, Red Ledges Access, and Red Ledges in two locations). Despite being in challenging terrain, the reroutes have sustained, and they have benefited non-motorized recreation even more than motorized recreation. The three-mile reroute of Robertson Pasture became a favorite among some mountain bikers, and even became the highlight of a locally-organized mountain bike race.

The MLSNF could utilize far more OHV grants and volunteers. The MLSNF has applied for few grants in recent years. Partners like counties have applied a few times, but applications have not risen with use levels or with the increased OHV grant funding available. Even if performed by agency staff, the cost of trail work is less than the cost of law enforcement and various blockades to gain compliance with an overly restrictive TMP. Ultimately it’s cheaper to guide visitors through well-designed trails than it is to keep them on graded roads. This proactive approach requires sufficiently desirable forest land to be eligible for motorized trail development, which is not the case in any of the action alternatives (B through D).

20. The Proposal fails to recognize and plan for the rapid growth of electric bicycles and electric OHVs.

Technological improvements are making some forms of motorized recreation increasingly compatible with other uses and resources of MLSNF. Electric bicycles (e-bikes) are the fastest growing segment of the cycling market. Likewise the number of electric motorcycles coming to market is growing exponentially, as is the capability of their batteries. Electric UTVs and 4WD vehicles are less common, but are already available for sale from major manufacturers. Over the life of a new LMP, the majority of motorized recreation seems likely to be using electric motors, which are significantly quieter while still producing some sound that can be beneficial when encountering other trail users or wildlife. They also still are capable of hauling maintenance supplies to maximize the efficiency of trail work.

We appreciate that Alternative C would allow Class 1 e-bikes in Semi-Primitive Non-Motorized (SPNM) Recreation Opportunity Spectrum (ROS) zones, especially since the vast majority of current e-bikes are Class 1. However there is also major growth in e-bikes that have either been modified from their Class 1 condition, designed as another class, or unclassified. There’s also major growth in lightweight electric motorcycles, and these products collectively hybridize motorcycling and bicycling.

This spectrum of electric vehicles could be accommodated by expanding traditional motorized trails, which provides access to OHV grant funds, plus it reduces the enforcement burden of distinguishing between various classes or bicycle and motorcycle. Such vehicles could also be accommodated by adding trails of a new class, particularly if industry standards are established. Either way, such vehicles won’t qualify as Class 1 e-bikes, so they’ll depend heavily on motorized ROS zones.

21. The Proposal fails to recognize that the current TMP is missing many well-established routes that would be viable additions.

Across the MLSNF, well-established routes are missing from the current TMP, many of which have been continuously used since the 1991 TMP was approved. For example, above the designated spur Beaver Basin, one fork goes to a historic cabin while the other goes to a view of the glacial cirque. Many visitors have physical limitations that would prevent them from walking from the designated endpoint to see these two viewpoints.

The Organizations recognize that each route would need to be reviewed before adding it to the TMP, but that review would be precluded by all the ROS in action alternatives that would zones the routes as non-motorized. Since some of these routes haven’t been marked closed, and since some of them are too short to distinguish on an MVUM, many visitors have no idea that the routes are technically closed. They understandably assume the routes would be left open when the agency claims that the Proposal wouldn’t close any routes, yet the Proposal would actually preclude well-established routes from ever being added. There’s no indication that the agency gave any consideration to non-designated routes when developing ROS boundaries in any action alternative.

Further the ROS in all action alternatives would zone several designated routes as non-motorized, such as Skyline to Black Canyon (FR 52467). Most of all, though, the action alternatives excessively constrain planning for new routes in quality terrain that would be sustainable as defined by the Proposal. The agency appears to assume that the current TMP is complete and sufficient for motorized recreation, and to entomb the current TMP by ROS zoning. The Proposal shows no evidence that the current TMP provides enough quantity and quality of OHV riding opportunities to meet current let alone future levels of interest.

22. The Proposal fails to demonstrate that non-motorized recreation needs a drastic expansion of non-motorized ROS zones.

The current LMP zones 92% of the forest as motorized in summer and even more of it is available for over-snow vehicle (OSV) travel provided adequate snowpack in winter. Even of the 8% that’s non-motorized, the current LMP doesn’t outright prohibit designating a motorized trail. Yet since the LMP was approved in 1986, the motorized zones have seen total motorized access decrease while the designation of non-motorized as well as non-mechanized trails in the motorized zones has increased. Of course the total motorized access has decreased in non-motorized zones as well. Clearly, motorized ROS zones (particularly Semi-Primitive Motorized) have advanced non-motorized interests, which suggests that no major expansion of non-motorized ROS zones is warranted, let alone an expansion from 8% to about 50% in the action alternatives. Given that the Proposal excludes ROS within nearly 300,000 acres of Bears Ears including Dark Canyon Wilderness Area, it seems likely that the expansion of non-motorized ROS zones would greatly exceed 50% of the total MLSNF. The organizations might understand a need for change if the Proposal demonstrated significant levels of trail-use conflicts, particularly if such conflicts warrant separation at great distances, but the Proposal doesn’t report such conflicts or a great likelihood of them developing.

23. Zoning is largely accomplished at the route level via subsequent travel management planning, so it doesn’t require non-motorized ROS zones in the LMP to be vastly expanded.

Motorized trails can and do provide enjoyment for non-motorized recreation, but the Organizations recognize that some degree of separation can be useful to prevent conflicts. That said, non-motorized routes don’t need to be miles away from motorized routes because national forests provide vegetative and topographic screening. Even in winter, the uses can often be separated by a stand of trees or ridge rather than an entire mountain. These smaller non-motorized ROS zones suffice to prevent “goal interference,” particularly when subsequent travel management planning will analyze further separation at the route-specific level.

24. The Proposal fails to show its ROS inventory, boundary-specific analysis, cumulative analysis, or rationale for the zones proposed in any action alternative.

The ROS zones in all action alternatives would profoundly affect travel management planning yet, in stark contrast to the TMP process, the Proposal simply doesn’t show its work. How did planners choose the location of each boundary? What tradeoffs did they consider, and why did they ultimately choose one over another? Once they decided upon all the new zones, did they analyze the cumulative effects upon each form of recreation, and what were the results? These fundamental questions must be answered for the public to be able to meaningfully review and comment on the proposal.

25. The Proposal fails to justify automatically changing motorized ROS zones to non-motorized ones in Inventoried Roadless Areas (IRAs) just because they currently lack routes designated for motorized use.

In addition to the Roadless Rule not being an appropriate basis for LMP management decisions, IRA status is not an appropriate basis for converting to non-motorized ROS zoning, and doing so would systematically erode the very spectrum of combinations (i.e. motorized trail riding in semi-primitive settings, particularly in the mountainous portions of the MLSNF) that ROS is designed to ensure.

The Proposal states:

“The Manti-La Sal National Forest contains 44 Inventoried Roadless Areas… While this does not preclude motorized opportunities completely, it does limit development of those opportunities that might impair roadless characteristics. Again, since a motorized ROS class doesn’t ensure development of motorized opportunities but rather identifies them as potential and suitable, it is unlikely that the inventoried roadless areas would see the development of motorized opportunities regardless of the ROS. However, by better aligning the ROS and inventoried roadless areas, it would improve management direction consistency and clarity.”

Further it states “the Roadless Rule provides guidance to manage for roadless characteristics which may not be congruent with a motorized ROS class.” The Proposal doesn’t explain what the characteristics are or how they would be impaired by developing any OHV trails. It doesn’t describe impairment by the existing network of motorized singletrack that’s in an IRA of the eastern Abajo Mountains.

As the Organizations’ previous comments have made clear, roadless doesn’t mean trail-less or motor-less. We see no reason why ROS zoning needs to change from motorized to non-motorized just because of IRA status. Particularly in ranger districts like Moab and Price, converting IRAs to non-motorized ROS zones largely eliminates the potential of semi-primitive settings to be enjoyed by motorized recreation. The whole point of ROS is to ensure that a variety of activities can be enjoyed in a variety of settings, and OHV trail riding in semi-primitive settings is central to recreation in national forests, increasingly so.

26. All action alternatives would excessively constrain the development of recreation opportunities.

When it comes to subsequent travel planning, a heavy burden is placed on justifying the addition of any motorized route to the travel plan, which is why adding motorized routes even in motorized zones is rare. It requires stars will align, so to speak, thus it depends upon a wide range of options at the outset.

The organizations understand the intent of ROS to place guardrails on travel management planning, but the action alternatives would limit OHV trail development so severely in ranger districts like Moab and Price that future planners couldn’t consider developing trails in terrain that’s actually mountainous and forested other than within road corridors, most of which are dead ends.

Connectivity is key to OHV riding opportunities, yet the ROS zones of all action alternatives would prevent the development of motorized trails to link any of the spur roads in vast portions of the MLSNF.

Just as the ROS zones of all action alternatives fail to provide adequate connectivity, they fail to provide an adequate cross-section of the physical settings for OHV trail riding, particularly in the Moab and Price ranger districts. Areas over 8,000′ of elevation offers taller trees and slopes that are far more desirable. The Proposal acknowledges the importance of physical settings for recreation opportunities:

“Areas where vegetation is removed, areas of minimal to thick vegetation, and densely timbered areas all play a part in providing a variety of settings for a variety of recreation opportunities and activities. The variety of viewsheds, which range from sparsely to densely covered terrain, influence the setting for recreation activities. Additionally, it influences the visual appeal for some visitors.”

Yet the ROS of all action alternatives would zone areas over 8,000′ as nonmotorized except along the corridors of currently-designated routes, thus eliminating the most valuable settings for consideration of developing OHV trails.

The Proposal doesn’t acknowledge this determination let alone justify it. Steeper slopes are entirely suitable for OHV trails given the proper design of a rolling contour. In fact steeper slopes help to keep vehicles on the trail while shedding water off the trail. Wildlife habitat is often as suitable for motorized recreation as it is for non-motorized recreation, as motors provide warning to wildlife of a vehicle’s approach. Provided that operators slow down upon encounters, wildlife often habituates to vehicles.

27. Reducing motorized ROS zones to 50% of the MLSNF is not justified by the rhetoric of “balance.”

The Proposal claims that “Alternatives B and C should provide an even balance between the demands for nonmotorized and motorized summer recreation opportunities” because the motorized and non-motorized ROS zones would each occupy roughly 50% of the MLSNF. The fact is that non-motorized zones would be 100% non-motorized due to the proposed standards and guidelines for such areas, while motorized zones would be 99% non-motorized in terms of route footprints due to the increasing challenges of approving any additions to the TMP. Therefore, when it comes to ROS, references to a 50/50 balance are highly misleading and inappropriate in agency planning documents.

Even regarding Winter ROS, in which OSV travel is permitted cross-country, there’s absolutely no need for non-motorized zones to approach half of the area. Granted, portions of lower elevations can be reserved for wildlife winter range, or higher elevations can be reserved for a particular ski trail or drainage basin. However most areas are rarely crowded, and vehicle sound is dampened by snow. OSV travel doesn’t impact soils or much wildlife at higher elevations. Further, some visitors use OSV travel to assist their non-motorized recreation.

Finally Winter ROS should accommodate OSV travel to connect areas while staying above 9,000′ of elevation, as lower elevations often lack adequate snowpack. At the highest elevations, even though snow conditions often prevent OSV travel from one basin over to another, ROS zones should allow most basins to be connected for those times when conditions allow.

28. If ROS map changes of the action alternatives are not scaled back to resemble the current LMP, then ROS text changes should be softened to resemble the current LMP.

On top of drastically reducing the acreage of motorized ROS zones, all the action alternatives add standards and guidelines that would make the non-motorized zones entirely exclusive for non-motorized use. If the ROS boundaries aren’t brought back much closer to the current LMP, then the ROS language should be left closer to the current RMP in which non-motorized recreation is the focus of non-motorized zones but not necessarily the exclusive recreational use of them.

In that case, below are five standards or guidelines that should be removed. In some cases, they could be merely qualified, such as by replacing “all project-level decisions” to “most project-level decisions” in FW-ROS-ST-02. Note that, even though FW-ROS-ST-01 would allow a motorized route to be opened provided that another motorized route is closed, this is no consolation since there are few if any routes in the current TMP to spare.

Regarding Summer ROS:

“Standards (FW-ROS-ST)
01 New system roads and motorized trails shall only be located within the Rural, Roaded Natural, and Semi-primitive Motorized classes unless they are replacements in kind of existing system roads or motorized trails to address resource impacts.
02 Existing roads and motorized trails in Primitive and Semi-Primitive Non-Motorized recreation opportunity spectrum classes shall be considered for closure during travel management planning.
Guidelines (FW-ROS-GD)
01 To sustain recreation settings and opportunities, all project-level decisions and implementation activities, including management activities at developed and dispersed recreation sites, should be moving toward the desired recreation opportunity spectrum mapped classes.”

Regarding Winter ROS:

“Guidelines (FW-WINTER-GD)
01 To provide distinct recreation opportunities when adequate snow is on the ground, all project-level decisions and implementation activities – including management activities at developed and dispersed recreation sites – should move toward the desired winter recreation opportunity spectrum mapped classes; these classes should be applied instead of the summer recreation opportunity mapped classes.
02 To manage for and provide a diversity of winter recreation opportunities, motorized, over-snow travel is not suitable in Primitive and Semi-primitive non-motorized recreation opportunity spectrum classes except for emergencies or administrative uses. New motorized facilities and infrastructure should not be developed in those classes.”

29. ROS comments that are site-specific

Below is a list of the most noteworthy locations that should remain in a motorized ROS class instead of being zoned non-motorized as proposed by Alternative B. (The organizations oppose virtually all expansions of non-motorized zones as proposed in Alternative D.) To be clear, this list is by no means complete, and we urge the agency to start with Alternative A and only eliminate motorized ROS zoning in specific locations where the USFS is confident that recreation planners decades in the future shouldn’t even consider any degree of access by e-bike, be it Class 1 or otherwise. By that logical guide, the portion of the forest that should remain in a motorized ROS zone is closer to the 90% of Alternative A than the 50% of Alternative B.

Monticello Ranger District:

While the network of motorized singletrack surrounding Robertson Pasture goes a long way toward filling out the range of recreation opportunities, only a quarter of the district is left out of Bears Ears National Monument, making this eastern quarter critical for its ability to more squarely focus on motorized recreation. For this reason, non-motorized zones proposed in this eastern quarter should be far more modest.

At the very least, motorized corridors should be greatly widened to accommodate any needed reroutes, the designation of short spurs, or development of parallel trails to provide a higher-quality opportunity than the graded roads, and to prevent conflicts with vehicles on the graded roads that tend to be larger and slower. Non-motorized boundaries should be set back at least 200 yards from both sides of motorized routes to give trail planners the latitude to deal with rugged terrain, like the road from Johnson Creek to Jackson Ridge and the road in North Canyon. (It would be great to reach the Robertson Pasture network by being able to start on singletrack immediately from the Blue Mountain Byway.)

Likewise the corridor of upper Abajo Peak Road should be widened and, on its west side, it should actually be widened all the way down to Cooley Pass (creating a triangle-shaped motorized zone) so that Trail 1 can be considered for reopening. Trail 1 combines with the Trail 5052 creates a mini-loop that can be a highlight for anyone traveling along the Abajo Peak or North Canyon roads, and e-bikers prefer to catch singletrack from the top of Abajo Peak for a long descent to Spring Creek Saddle. To consider making a parallel trail between Cooley Pass and Spring Creek Saddle, the motorized corridor should be widened to at least 200 yards from the graded road.

The road between Cooley Pass and Spring Creek Saddle is just one example of why a minimum of 200 yards is entirely justified, as unstable slopes actually extend 175 yards above the graded road, and below the graded road even further. Plus it’s almost always preferable to make a parallel trail above the road so the trail avoids any drainage that may be concentrated by the road, so trail riders can more easily reach the road in an emergency, and so trail riders can enjoy the aesthetic and psychological benefits of being above the road rather than below it.

Another good example of the 200-yard minimum buffer is east of the pass on Robertson Pasture Trail. The reroute that RwR planned and implemented with the USFS is actually over 175 yards from the trail’s original location. In fact, on the west side of the pass, the reroute RwR planned and implemented with the USFS is 550 yards from the trail’s original location. Similar latitude would be provided by a 200-yard minimum buffer along lower Robertson Pasture Trail and upper Spring Creek Trail.

Moab Ranger District:

As with the eastern quarter of the Monticello Ranger District, most of the mountains south of La Sal Pass and north of Geyser Pass should remain motorized for future planners to consider any e-bike trails and perhaps a semblance of the motorcycle trail opportunities that existed all throughout the La Sal range for decades until 1991. The fact that Alternative B precludes any such consideration in the mountainous part of the Moab Ranger District (other than within the road corridors) is out of hand.

Perhaps the most egregious part of Alternative B’s ROS proposal is from Carpenter Basin Trail all the way down to the forest boundary by going through a chained pinyon juniper woodland that includes a through-going road, which is partially covered by vegetation but nevertheless exists (as one of many motorized routes whose existence is not acknowledged by the Proposal or past plans such as the Moab Open Areas Route Designation of 2009). For MLSNF LMP scoping in 2004, RwR proposed reopening South Mountain trails for motorcycling since hiking had become particularly popular north of La Sal Pass and mountain biking had become particularly popular north of Geyser Pass. In response to concerns, in 2006 RwR proposed merely going around the flank of South Mountain by reopening Carpenter Basin Trail, which is an old road that marked the northeast boundary of an OHV-open area until 2009. After being told to wait since 2006, Alternative B’s ROS proposal essentially says that not only is Carpenter Basin Trail dead on arrival, but so would be any route that goes around the mountains. In other words, don’t even think about developing a trail over South Mountain, on the flank of South Mountain, at the base of South Mountain, or across the chained pinyon-juniper woodland. If motorcyclists want a trail to reach from Spanish Valley to the state land of Upper Twomile, they can do it on BLM land, and stay off of the national forest, as it’s simply not the “land of many uses.” We urge the agency to keep any non-motorized zone well-above the Carpenter Basin Trail, and preferably above all foothills surrounding South Mountain, or at the very least 200 yards away from the edge of motorized routes.

Similarly the majority of the mountains north of Geyser Pass should remain in a motorized zone, or at least the portion of them that make prominent connections that may warrant future consideration of use by something more than a bicycle or Class 1 e-bike, such as Boren Mesa to Oowah Lake and from Miners Basin to Bachelor Basin. Also for future planners to consider making a parallel trail above the La Sal Loop Road and the Castleton-Gateway Road, the ROS should remain motorized north of the radio towers, northeast of Spring Branch, and above property that’s near Bachelor Basin and Willow Basin (to connect east all the way to state land).

In Beaver Basin, a couple examples of the need for making corridors extend at least 200 yards from motorized routes are the well-established spurs that go to the historic cabin and the upper view of the glacial cirque. Likewise the corridor of Miners Basin Road should be widened. ROS zoning should remain motorized east of Miners Basin, where several old roads climb the flanks of Mineral and Green mountains. In fact, to keep planning options open for anything beyond a bicycle or Class 1 e-bike, the motorized ROS zone ought to extend from Miners Basin all the way to Beaver Basin. However what’s most essential is to have continuous motorized ROS zones for going around the La Sal Range, along the north side above several properties, and along the south side via Carptenter Basin Trail.

Ferron Ranger District:

It appears that Dry Wash, Dairy Trail, Pole Canyon and Gentry single track trails are cherry-stemmed in. While we are grateful for this consideration we are asked for a wider cherry-stemmed ROS within these routes to allow for mapping/data errors and for trail reroutes

However narrow many non-motorized ROS zones may be, some of them are many miles long, effectively creating a wall that excessively constrains future planning. For example, although the action alternatives would leave more of the Ferron District in a motorized ROS zone than the Price District, even the Ferron District has a fifteen-mile long continuous strip of non-motorized ROS zone from The Narrows of Stevens Creek all the way up to Swedish Knoll.

Price Ranger District:

All action alternatives are enormously restrictive by relegating motorized ROS zones almost entirely to road corridors, leaving virtually no potential to meaningfully improve connectivity. Even the Tie Fork Canyon – Pole Canyon motorcycle loop would struggle to get a motorized singletrack paralleling UT-31 (to keep motorcycle trail riders off the highway) since the measly hundred yards between the highway and the non-motorized ROS boundary is largely occupied by the meandering creek. Perhaps the most egregious example of entombing an inadequate TMP is at the north end surrounding Garret Ridge and Coffeepot Ridge. Not only would the action alternatives prevent the possibility of connecting the spurs of Blind Canyon, Cougar Ridge, or Dry Canyon, but the proposed non-motorized ROS boundaries actually truncate the existing roads.

San Pitch Mountains:

Other than by driving the primary road of Chicken Creek, all action alternatives would prevent the consideration of linking westward from anywhere between Horse Heaven Mountain (three miles from the forest’s southern boundary) nearly fifteen miles beyond Salt Creek Peak to the forest’s northern boundary.

30. Peavine Corridor

“Desired Conditions (DA-WILD-DC)
10 Use within the Peavine Corridor has a minimal effect on Dark Canyon wilderness resources; motorized use stays within the corridor and does not enter the designated wilderness.”
“Guidelines (DA-WILD-GD)
02 To maintain wilderness character, management actions along the motorized Peavine Corridor should minimize user conflict and reduce impacts on soil, watershed, vegetation, and other resources.”

As our 2020-12-18 comments pointed out, the Utah Wilderness Act of 1984 that created the Dark Canyon Wilderness clearly states “The fact that nonwilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.” To comply with this law, the above statements could be condensed to read “Motorized use within the Peavine Corridor stays within the corridor and does not enter the designated wilderness” and “Management actions along the motorized Peavine Corridor should minimize user conflict and reduce impacts on soil, watershed, vegetation, and other resources.”

31. Groundwater-Dependent Ecosystems

“Standards (FW-WETLAND-ST)
01 New road and trail development shall not be authorized in groundwater-dependent ecosystems and wetlands.”

As our 2020-12-18 comments pointed out, the above statement is too sweeping, and should be followed with the caveat “…except to cross them in sustainable locations.” This caveat would make the statement consistent with the rest of the draft Forest Plan, including (FW-ACCESS-GD-2) “To maintain the ecological health of riparian areas, new roads and trails should be located outside of riparian areas and should only cross them in sustainable locations.”

32. Elk Ridge Geographic Area

Generally the Organizations oppose unique parts of Alternative D, but let us specifically explain some reasons we oppose the designation of an Elk Ridge Geographic Area (ERGA). The area includes valuable OHV riding opportunities such as the Gooseberry ATV Trail, but several provisions of the ERGA threaten continued enjoyment of such opportunities. For example, a standard prohibits increasing the density of routes, which could prevent rerouting a trail away from sensitive resources because doing so would increase the route density. Such provisions are not only unnecessary, but ineffective, and an inefficient use of managerial resources.

33. Conclusion

We strongly support Alternative A of the Proposal, as there are many troubling new concepts and standards in every other alternative of the Proposal. Throughout the Proposal, the entire direction of analysis reflects only negative impacts of all forms of recreation and provide almost nothing about the benefits to communities and the public more generally from recreation. We emphatically oppose Alternative D, as it fails to align with numerous legal requirements and fails to set a vision for the planning area that reflects the growing population in the planning area.

While there are concepts and land allocations that we could support in Alternative C, this Alternative includes new standards, such as trails being limited to 66″ in width and recreational activities above 11,000′ in elevation needing to be limited, that are not acceptable. It is troubling to the Organizations that many of these entirely new standards are in every alternative and there is no discussion of possible challenges that could result from generalized standards such as these.

Development of meaningful public comment is made more difficult on the Proposal for several reasons. This is not a viable plan for the management of the MLSNF moving forward, as many tools intended as management decisions are purportedly used as planning decisions. This problem is only compounded when inventory terms are used interchangeably with what appears to be management-decision terms. This is a significant barrier to public comment and hence a serious NEPA inadequacy.

Specific to ROS, the current LMP that has held 90% of the forest in a motorized zone has yielded a drastic reduction in motorized access while many trails have become designated for non-motorized or non-mechanized use inside the motorized zones. Even though more non-motorized zoning clearly hasn’t been needed to advance non-motorized opportunities, the Organizations are open to reducing the portion of the forest that’s in a motorized zone. However reducing down to 50% is excessive, especially given that it would relegate almost any motorized trail development to the mesas below the mountains, and especially given that new standards and guidelines would make non-motorized zones exclusive to that use. Changing ROS boundaries in a more modest fashion would ensure that managers in the coming decades will retain sufficient latitude to find ways of providing ample recreation opportunities while juggling all of the other management goals.

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

Respectfully Submitted,

Chad Hixon
Executive Director
Trails Preservation Alliance

Clif Koontz
Executive Director
Ride with Respect

[1] 36 CFR 219.7(c)

[2] 36 CFR 219.19

[3] 40 CFR 1500.1

[4] 40 CFR 1502.1

[5] 40 CFR 1502.2(b)

[6] 36 CFR 219.7d

[7] Draft EIS at pg 2-63

[8] USFS Planning Rule 36 CFR 219.10

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

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

[11] PUBLIC LAW 114–245—NOV. 28, 2016

[12] National Trails strategy at pg. 4

[13] A complete copy of this correspondence is attached as an exhibit to the comments of ORBA et al.

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

[15] Western Governors Association; Get out West Report; Managing the Regions Recreational Assets; June 2012 at pg 3

[16] Get Out West Report at pg. 5

[17] Draft Land management plan @ pg 2-64

[18] 36 C.F.R. § 212.1

[19] (FSH 2353.28j ¶ 1)

[20] 36 CFR 212.81

[21] Draft decision at pg. 2-62

[22] Proposal at pg. 2-62

[23] A complete copy of this lawsuit is attached as an exhibit to the comments of ORBA et al.

[24] ephriammanti1.pdf (utah.gov)

[25] DEIS at pg. 2-20

[26] DEIS at pg. 2-30

[27] 42 U.S.C. 4332(2)

[28] 42 U.S.C. 4321

Exhibit 1 to Comments of Ride with Respect and Trail Preservation Alliance on the Forest Service 2001 Roadless Area Conservation Rule (“2001 RACR”) as it pertains to the MLSNF Draft LMP/EIS.

Background, Summary and Text of 2001 Roadless Area Conservation Rule

In October 2011, USFS appealed the 2007 Wyoming district court decision enjoining the 2001 RACR, arguing the Wyoming district court’s injunction was improper.  The U.S. Court of Appeals for the Tenth Circuit agreed with USFS and upheld the 2001 Rule, vacating the injunction imposed by the Wyoming district court in 2008.  Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1272 (10th Cir. 2011).  In reinstating the 2001 RACR, the Tenth Circuit rejected arguments that the rule violated NEPA and created de facto wilderness in violation of the Wilderness Act. Id., at 1220-34.  The State of Wyoming petitioned the U.S. Supreme Court review of the Tenth Circuit decision on writ of certiorari, but that petition was declined.

As a result, the 2001 RACR is currently nominally in effect throughout the United States except in Colorado and Idaho.  However, the 2001 RACR is not actually currently codified in the current Code of Federal Regulations.  Thus, the 2001 RACR’s viability is solely judicially sustained by the 2011 Tenth Circuit decision cited above.  The United States Supreme Court has yet to weigh in on the 2001 RACR, but as noted above that Court in 2012 declined to review the Tenth Circuit’s 2011 ruling upholding the rule.

The actual 2001 RACR itself may be found only by going to the Federal Register publication of its final enactment, cited at 62 FR 3244-72, date January 12, 2001.

Here is a summary of the 2001 RACR, and then the actual text of the Rule follows:

As pertaining to roads, the 2001 RACR prohibits new road construction and reconstruction in inventoried roadless areas on National Forest System lands, except:

• To protect health and safety in cases of an imminent threat of flood, fire, or other catastrophic event that, without intervention, would cause the loss of life or property.
• To conduct environmental clean up required by federal law.
• To allow for reserved or outstanding rights provided for by statute or treaty.
• To prevent irreparable resource damage by an existing road.
• To rectify existing hazardous road conditions.
• Where a road is part of a Federal Aid Highway project.
• Where a road is needed in conjunction with the continuation, extension, or renewal of a mineral lease on lands that are under lease, or for new leases issued immediately upon expiration of an existing lease.

As pertaining to timber activities, the 2001 RACR prohibits cutting, sale, and removal of timber in inventoried roadless areas, except:

• For the cutting, sale, or removal of generally small diameter trees which maintains or improves roadless characteristics and:
• To improve habitat for threatened, endangered, proposed, or sensitive species, or
• To maintain or restore ecosystem composition and structure, such as reducing the risk of uncharacteristic wildfire effects.
• When incidental to the accomplishment of a management activity not otherwise prohibited by this rule.
• For personal or administrative use.
• Where roadless characteristics have been substantially altered in a portion of an inventoried roadless area due to the construction of a classified road and subsequent timber harvest occurring after the area was designated an inventoried roadless area and prior to the publication date of this rule.

Here is the actual Federal Register Text of 2001 Roadless Area Conservation Rule.  Again, this will not be found in the current Code of Federal Regulations.  As may be seen, the 2001 RACR was initially codified at 36 CFR Part 294, but that is no longer the case:

PART 294—SPECIAL AREAS

1. Add and reserve §§ 294.3–294.9, designate §§ 294.1 through 294.9 as subpart A, and add a subpart heading to read as follows:

Subpart A—Miscellaneous Provisions

2. Remove the authority citations that follow §§ 294.1 and 294.2 and add an authority citation for the newly designated Subpart A to read as follows: Authority: 16 U.S.C. 472, 551, and 1131.
3. Add a new Subpart B to read as follows:

Subpart B—Protection of Inventoried Roadless Areas

Sec.

294.10 Purpose.

294.11 Definitions.

294.12 Prohibition on road construction

and road reconstruction in inventoried

roadless areas.

294.13 Prohibition on timber cutting, sale,

or removal in inventoried roadless areas.

294.14 Scope and applicability.

Authority: 16 U.S.C. 472, 529, 551, 1608,

1613; 23 U.S.C. 201, 205.

Subpart B—Protection of Inventoried Roadless Areas

§ 294.10 Purpose.

The purpose of this subpart is to provide, within the context of multiple use management, lasting protection for inventoried roadless areas within the National Forest System.

§ 294.11 Definitions.

The following terms and definitions apply to this subpart:

Inventoried roadless areas. Areas identified in a set of inventoried roadless area maps, contained in Forest Service Roadless Area Conservation, Final Environmental Impact Statement, Volume 2, dated November 2000, which are held at the National headquarters office of the Forest Service, or any subsequent update or revision of those maps.

Responsible official. The Forest Service line officer with the authority and responsibility to make decisions regarding protection and management of inventoried roadless areas pursuant to this subpart.

Road. A motor vehicle travelway over 50 inches wide, unless designated and managed as a trail. A road may be classified, unclassified, or temporary.

(1) Classified road. A road wholly or partially within or adjacent to National Forest System lands that is determined to be needed for long-term motor vehicle access, including State roads, county roads, privately owned roads, National Forest System roads, and other roads authorized by the Forest Service.

(2) Unclassified road. A road on National Forest System lands that is not managed as part of the forest transportation system, such as unplanned roads, abandoned travelways, and off-road vehicle tracks that have not been designated and managed as a trail; and those roads that were once under permit or other authorization and were not decommissioned upon the termination of the authorization.

(3) Temporary road. A road authorized by contract, permit, lease, other written authorization, or emergency operation, not intended to be part of the forest transportation system and not necessary for long-term resource management. Road construction. Activity that results in the addition of forest classified or temporary road miles.

Road maintenance. The ongoing upkeep of a road necessary to retain or restore the road to the approved road management objective.

Road reconstruction. Activity that results in improvement or realignment of an existing classified road defined as follows:

(1) Road improvement. Activity that results in an increase of an existing road’s traffic service level, expansion of its capacity, or a change in its original design function.

(2) Road realignment. Activity that results in a new location of an existing road or portions of an existing road, and treatment of the old roadway.

Roadless area characteristics.

Resources or features that are often present in and characterize inventoried roadless areas, including:

(1) High quality or undisturbed soil, water, and air;

(2) Sources of public drinking water;

(3) Diversity of plant and animal communities;

(4) Habitat for threatened, endangered, proposed, candidate, and sensitive species and for those species dependent on large, undisturbed areas of land;

(5) Primitive, semi-primitive nonmotorized and semi-primitive motorized classes of dispersed recreation;

(6) Reference landscapes;

(7) Natural appearing landscapes with high scenic quality;

(8) Traditional cultural properties and sacred sites; and

(9) Other locally identified unique characteristics.

§ 294.12 Prohibition on road construction and road reconstruction in inventoried roadless areas.

(a) A road may not be constructed or reconstructed in inventoried roadless areas of the National Forest System, except as provided in paragraph (b) of this section.

(b) Notwithstanding the prohibition in paragraph (a) of this section, a road may

be constructed or reconstructed in an inventoried roadless area if the Responsible Official determines that one of the following circumstances exists:

(1) A road is needed to protect public health and safety in cases of an imminent threat of flood, fire, or other catastrophic event that, without intervention, would cause the loss of life or property;

(2) A road is needed to conduct a response action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or to conduct a natural resource restoration action under CERCLA, Section 311 of the Clean Water Act, or the Oil Pollution Act;

(3) A road is needed pursuant to reserved or outstanding rights, or as provided for by statute or treaty;

(4) Road realignment is needed to prevent irreparable resource damage that arises from the design, location, use, or deterioration of a classified road and that cannot be mitigated by road

maintenance. Road realignment may occur under this paragraph only if the road is deemed essential for public or private access, natural resource management, or public health and

safety;

(5) Road reconstruction is needed to implement a road safety improvement project on a classified road determined to be hazardous on the basis of accident experience or accident potential on that

road;

(6) The Secretary of Agriculture determines that a Federal Aid Highway project, authorized pursuant to Title 23 of the United States Code, is in the public interest or is consistent with the purposes for which the land was reserved or acquired and no other reasonable and prudent alternative exists; or

(7) A road is needed in conjunction with the continuation, extension, or renewal of a mineral lease on lands that are under lease by the Secretary of the Interior as of January 12, 2001 or for a new lease issued immediately upon expiration of an existing lease. Such road construction or reconstruction must be conducted in a manner that minimizes effects on surface resources, prevents unnecessary or unreasonable surface disturbance, and complies with all applicable lease requirements, land and resource management plan direction, regulations, and laws. Roads constructed or reconstructed pursuant to this paragraph must be obliterated when no longer needed for the purposes of the lease or upon termination or expiration of the lease, whichever is sooner.

(c) Maintenance of classified roads is permissible in inventoried roadless areas.

§ 294.13 Prohibition on timber cutting, sale, or removal in inventoried roadless areas.

(a) Timber may not be cut, sold, or removed in inventoried roadless areas of the National Forest System, except as provided in paragraph (b) of this section.

(b) Notwithstanding the prohibition in paragraph (a) of this section, timber may be cut, sold, or removed in inventoried roadless areas if the Responsible Official determines that one of the following circumstances exists. The cutting, sale, or removal of timber in these areas is expected to be infrequent.

(1) The cutting, sale, or removal of generally small diameter timber is needed for one of the following purposes and will maintain or improve one or more of the roadless area characteristics as defined in § 294.11.

(i) To improve threatened, endangered, proposed, or sensitive species habitat; or

(ii) To maintain or restore the characteristics of ecosystem composition and structure, such as to

reduce the risk of uncharacteristic wildfire effects, within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period;

(2) The cutting, sale, or removal of timber is incidental to the implementation of a management

activity not otherwise prohibited by this subpart;

(3) The cutting, sale, or removal of timber is needed and appropriate for personal or administrative use, as provided for in 36 CFR part 223; or

(4) Roadless characteristics have been substantially altered in a portion of an inventoried roadless area due to the construction of a classified road and subsequent timber harvest. Both the

road construction and subsequent timber harvest must have occurred after the area was designated an inventoried roadless area and prior to January 12, 2001. Timber may be cut, sold, or removed only in the substantially altered portion of the inventoried roadless area.

§ 294.14 Scope and applicability.

(a) This subpart does not revoke, suspend, or modify any permit, contract, or other legal instrument authorizing the occupancy and use of National Forest System land issued prior to January 12, 2001.

(b) This subpart does not compel the amendment or revision of any land and resource management plan.

(c) This subpart does not revoke, suspend, or modify any project or activity decision made prior to January 12, 2001.

(d) This subpart does not apply to road construction, reconstruction, or the cutting, sale, or removal of timber in inventoried roadless areas on the Tongass National Forest if a notice of

availability of a draft environmental impact statement for such activities has been published in the Federal Register prior to January 12, 2001.

(e) The prohibitions and restrictions established in this subpart are not subject to reconsideration, revision, or rescission in subsequent project decisions or land and resource

management plan amendments or revisions undertaken pursuant to 36 CFR part 219.

(f) If any provision of the rules in this subpart or its application to any person or to certain circumstances is held invalid, the remainder of the regulations in this subpart and their application remain in force.

Comment

The 2001 RACR does not prohibit the MLSNF from constructing, reconstructing, or maintaining motorized trails.  Section 294.11.

The 2001 RACR defines Semi-Primitive Motorized classes to themselves be roadless characteristics.  Section 294.11.

The 2001 RACR does not prohibit the MLSNF from maintaining existing roads but prohibits new road construction and reconstruction.  Section 294.12(a).

The 2001 RACR does not compel the MLSNF to do anything by way of revision to the current land and resource management plan.  Section 294.14(b).

The 2001 RACR must be applied in such a way as to respect and preserve multiple use management, and not be used as a club to forge de facto wilderness creation at the expense of multiple use management.  Section 294.10.

Though it was upheld in the Tenth Circuit Court of Appeals, the highest court in the land has not ruled.  The 2001 RACR is therefore still open to a possible legal challenge by pursuing United States Supreme Court review of excessive abuse of administrative rulemaking authority that overrides the multiple-use policies of the MUSYA, the 1964 Wilderness Act, and the NFMA.  An as-applied challenge is conceivable in the Tenth Circuit as well.

Bureau of Land Management
GSENM RMP Project Manager
BLM Paria River District
669 S Highway 89A
Kanab, UT 84741

RE: Grand Staircase-Escalante National Monument RMP (DOI-BLM-UT-P010-2022-0006-RMP-EIS)

Dear BLM Planning Team:

Please accept this correspondence from the above organizations as our official comments regarding the Grand Staircase-Escalante National Monument (GSENM) Draft Resource Management Plan (DRMP).

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.

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 GSENM encompasses a vast area with over a thousand miles of motorized routes that are of high quality for responsible riding and driving. In addition to providing access to remote places of varied geology among other resources, the motorized routes provide opportunities for exploration, a sense of harmony with nature, camaraderie with one’s group, and even some exercise or challenge from the roughest routes. These primitive routes and even the graded roads to some degree are the very types of opportunities described in Proclamation 10286, which states “The Grand Staircase-Escalante region retains the frontier character of the American West, providing visitors with an opportunity to experience a remote landscape rich with opportunities for adventure and self-discovery.”

3. Context of National Monument Designations

The designation of GSENM, then scaling it back, and most recently expanding it were quite political acts, and this context should not be ignored when revising its RMP. On January 16th, 1997, Deseret News published “Making a Monument” that stated:

When BLM state director Bill Lamb announced [the appointment of Jerry Meredith as Monument Manager], he seized the occasion to speak in conciliatory tones to those who opposed the preserve, suggesting long-established land uses such as grazing and hunting will continue beside “various types of recreation” in the area.

“We have an opportunity, if not the obligation, to try to build something completely new and fresh here – something that adds diversity to the forms of land management heretofore found on the federal lands of the West,” said Lamb.

“If we do it right,” he said, “(the monument will) protect some of the most remarkable land on Earth while sustaining the cultural identity that makes the region so special and rare. We just need to work together.

Accommodating various types of recreation and forging a different path than the NPS has done with national monuments took a setback shortly thereafter, as the BLM attempted to prohibit OHV use of graded roads, similar to the NPS policy in national parks (although NRAs now allow OHV use). In fact, back then GSENM staff discouraged some of the Organizations’ members and contributors from riding routes designated open in the 2000 MMP even though their motorcycles were registered for interstate highway use. This attempt to ban OHVs and discourage registered motorcycles failed but, over two decades later, the DRMP attempts to adopt a much more concerning aspect of NPS policy, which is route density. At least one of the DRMP alternatives for OHV area designations would almost certainly result in a route network that’s as sparse as the ones in each district of Canyonlands National Park.

Meanwhile there’s cognitive dissonance south of GSENM in the Baaj Nwaavjo I’tah Kukveni National Monument that was designated just a few months ago. On August 17th, 2023, the Moab Times-Independent published “Biden’s new Arizona national monument exposes Grand Canyon-like divide between supporters and critics” that stated:

Amber Reimondo, energy director for the environmental nonprofit Grand Canyon Trust, said such assertions are just plain wrong. She said the monument will not involve the seizure of private property, threaten existing livestock or water rights or limit access to recreation.

“If these [claims] were true,” she said, “they’d have legitimate ground to stand on. But they are just not true.”

So Baaj Nwaavjo is touted to not limit access to recreation while GSENM would further limit access to recreation, and dramatically so. It’s not too late for GSENM planners to prove the Grand Canyon Trust representative or the former BLM state director right. Fix the DRMP to provide far more diverse recreation opportunities than Canyonlands National Park provides.

4. OHV Area Designations

The Organizations are very concerned by the extent of areas proposed to be closed to OHV travel in all three action alternatives, which would force the subsequent travel planning to severely reduce motorized recreation opportunities that are already lacking when one considers the sheer expanse of GSENM. All three action alternatives would force the closure of some motorized routes by zoning their locations are closed to OHV travel. This enormous impact of travel planning isn’t even addressed let alone analyzed at the route-specific or cumulative scales, which violates NEPA and hampers our ability to meaningfully review and comment. Even where the route is “cherry stemmed,” boundaries are so tight that it sort of straitjackets the route and hobbles potential management actions such as a reroute. Further, the closed area designation prohibits even the mere consideration of adding a route in future. Obviously approving any additional routes has proven very difficult, as few routes have been added across the entire GSENM over the past couple decades. Nevertheless it’s important to preserve this flexibility for future planners to discover those instances when adding a route may be appropriate to benefit recreation or mitigate its negative effects. After all, such routes could be as minimal as an e-bike trail, or as useful as a short road to cluster campsites in order to close dispersed sites elsewhere. This RMP may be in effect for decades, by which time the majority of motorcycles and possibly automobiles may become electric and even quieter. The organizations accept some scrutiny when it comes to subsequent travel planning and certainly when new routes are proposed, but area designations at this highest level of land-use planning should only be closed to motorized use outright if it’s certain that the given area won’t ever become suitable for any extent of e-biking or other emerging uses. The fact that the BLM can manage more proactively than the NPS is a distinction that could help GSENM achieve the aspirations of the former BLM state director.

5. Coordination with Resource Advisory Councils

When developing the current RMPs for GSENM and the KEPA in June of 2019, the BLM consulted its Utah Resource Advisory Council (RAC), which deliberated to reach a set of recommendations focused on making management more effective for conservation, recreation, and other uses so that they would be optimal plans regardless of national-monument status. Most of this work is discarded by the action alternatives, which is disappointing because the current RMPs’ reliance on active management and adaptability achieved the kind of consensus espoused by the former BLM state director.

6. Coordination with Motorized Trail Groups

Local OHV groups such as the UT/AZ ATV Club are key partners, as they perform countless hours of service work, provide the unique perspective of motorized trail enthusiasts, and promote responsible visitation that’s peer to peer. In particular the UT/AZ ATV Club’s exceptional work on Inchworm Arch has been a model partnership that should be nurtured, yet it’s jeopardized by the DRMP, which should be rectified immediately by ensuring that Inchworm Arch and all other routes will get a fair shake when it’s actually time for travel planning. Please see the enclosed comments from UT/AZ ATV Club’s DRMP, which the Organization’s fully incorporate as our own comments to the BLM.

7. Coordination with Garfield and Kane Counties

In the GSENM, perhaps the most important partners to recognize are Garfield and Kane Counties. The general public greatly benefits from their maintenance of the road network that’s owned jointly between the counties and State of Utah. Both of these counties have been outstanding in their assistance with motorized routes of all kinds. The DRMP must be improved to honor the critical role these counties play in successfully managing GSENM. Please see the enclosed comments from Garfield County regarding motorized routes, which the Organization’s fully incorporate as our own comments to the BLM.

8. Conclusion

The Organizations urge GSENM planners to recognize the motorized route network and its stewards as vital to providing diverse recreation opportunities, which are indeed compatible with Proclamation 10286.

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