Bureau of Land Management
Price Field Office
125 South 600 West
Monticello, Utah 84501

RE: San Rafael Swell Travel Management Plan (DOI-BLM-UT-G020-2019-0019-EA)

Also See: March 3, 2021 Comments BLM Scoping Document in the San Rafael Swell Travel Management Plan

Dear SRS TMP Project Manager:

These comments on the BLM’s Draft Environmental Assessment of the San Rafael Swell (SRS) Travel Management Plan (TMP) are an addendum of the supplement to the primary comments that all three of our groups submitted earlier today along with the Colorado Snowmobile Association and Colorado Off-Highway Vehicle Coalition.

1. Background of Our Organizations

In our comments, the “Organizations” will refer to the following three 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.

Ride with Respect (RwR) was founded in 2002 to conserve shared-use trails and their surroundings. Since then, over 750 individuals have contributed money or volunteered time to the organization. RwR has performed over 20,000 hours of high-quality trail work on public lands, most of which was in the Moab Field Office. In the Price Field Office, RwR has participated in the 2008 RMP and subsequent travel planning.

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

As stated in our supplement to the primary comments, the Organizations are providing feedback on the draft TMP because the BLM requested it, but we also urge you to start with amending the Price RMP and developing an SRS Recreation Area Management Plan (RAMP) before proceeding with the TMP.

In this addendum, the Organizations also urge your agency not to close routes for the sake of minimizing impacts to wilderness characteristics (WC) in lands with wilderness characteristics (LWC) units or natural areas (NAs).

In both LWC units and NAs, Alternative B closes many routes for the express purpose of minimizing impacts to WC, as stated in Section 2.2.3 on Page 23:

Alternative B prioritizes protection of resources, including, but not limited to, wildlife habitats, natural and cultural resources, ecosystems, and landscapes. OHV use is more constrained under this alternative than under any other alternative. For example, route closures were prioritized in BLM natural areas and LWCs…

In both LWC units and NAs, Alternative C closes many routes that may not be for the express purpose of minimizing impacts to WC, but the clear correlation between Alternative C closures and LWC units or NA status suggests that it’s more than a coincidence. While Alternative C may close few routes in LWC units or NAs than Alternative A, Alternative A is based on a TMP that–in many parts of the planning area–is irrefutably incomplete in its development, implementation, and enforcement from 2008 to present. Alternative D is the baseline that most closely represents on-the-ground use patterns from 2008 to present, thus it’s what visitors would regard as the status quo. Compared to Alternative D, Alternative C closes many routes, and it closes a higher percentage of routes in LWC units and NAs than in lands without WC. Figure 3-1, “Miles of Evaluated Routes by Alternative in LWC” on Page 37, shows 56% of LWC route miles closed in Alternative C compared to just 4% in Alternative D. In the planning area at large, Alternative C closes 21% of the total evaluated route network, thus Alternative C’s closure percentage in LWC units is over 2.5 times greater that Alternative C’s closure percentage in the planning area at large. Thus, while Alternative B is more severe than Alternative C in LWC units and NAs, Alternative C nevertheless minimizes impacts to WC as much or more than it minimizes impacts to other resources. These statistics suggest that even Alternative C closes many routes for the purpose of promoting WC, albeit less expressly and less severely than Alternative B.

The promotion of WC outside the designated wilderness in this planning area is inappropriate for many reasons that go back many years, including the 2008 Price RMP, the 2017 settlement agreement, the 2019 Dingell Act, and recent Supreme Court rulings as this addendum will outline.

3. 2008 Price RMP

The draft TMP in Section 3.3.2.1 “Affected Environment” on Page 34 states “LWC units are not solely managed for the protection of their wilderness character unless a BLM land use planning decision has been made to manage the unit as a BLM natural area.” This statement inaccurate in multiple ways. First, NAs are not solely managed for the protection of WC either. The BLM insists that NA designations don’t constitute a decision because they can manage for WC among other things at the agency’s discretion. If—as the draft TMP assets–NAs are solely managed for the protection of WC, then they don’t leave enough discretion to avoid recognizing NA designations as decisions. Second, LWC units are not even partly managed for the protection of WC, as the BLM insists that LWC classification is purely descriptive. Thus the SRS TMP should not prioritize route closures in LWC units because the Price RMP directs the BLM to not manage for WC in those LWC units, yet Alternative B does so expressly and Alternative C does so effectively.

4. 2017 settlement agreement

The draft TMP in Section 3.3.2.1 “Affected Environment” on Page 34 states:

Similarly, the 2017 Settlement Agreement stipulates that “For purposes of minimizing damage to public lands with BLM-inventoried wilderness characteristics, the BLM will consider the potential damage to any constituent element of wilderness characteristics, including naturalness, outstanding opportunities for solitude, and outstanding opportunities for primitive and unconfined recreation, for each alternative route network.”

Where the 2017 Settlement Agreement refers to minimizing damage to public lands with BLM-inventoried wilderness characteristics, it refers to minimizing damage to those public lands, not minimizing damage to the WC themselves. Furthermore the 2017 Settlement Agreement refers to considering the potential damage to any constituent element of WC, it directs the BLM to consider such damage, but it doesn’t direct the BLM to minimize such damage. If the 2017 Settlement Agreement were to direct the BLM to minimize impacts to WC, it probably wouldn’t have been approved by the court, which cautioned against creating de facto wilderness in its 2018 dismissal of Utah’s appeal.

5. 2019 Dingell Act

5(a).  Preserving the Balance Inherent to this Compromise Legislation

The Dingell Act designated roughly half of the SRS to be wilderness and the other half to be very accessible, which is what the Organizations reminded the Price Field Office of in our Price RMP Amendments scoping letter, “2022-01-07 Price RMP comm from CCOHVA-SRMC-RwR” (which is also Exhibit 3 of our primary comments from earlier today). Specifically our Price RMP Amendments scoping letter stated:

Please remember that Emery County agreed to the massive wilderness designation so the remaining areas would continue to be managed more inclusively by the multiple-use form of conservation. Indeed, settling the wilderness debate was the spirit shared by all congressional sponsors of the Emery County bill… the packaged Emery County bill of 2019 proposed to designate over 650,000 acres of wilderness, with those additional acres encompassing 73 miles of Class D roads and at least that many other motorized routes that had not been marked “closed” on the ground, nor had they even been analyzed for closure (through a complete travel-planning process that would start with a complete inventory of existing routes). The point is that designating approximately 660,000 acres of wilderness permanently closed many well-established routes to motorized and mechanized travel.

The Organizations reiterated these points in our SRS TMP scoping letter, “2021-03-03 SanRafSwel TMP scoping comm -RwR COHVCO TPA,” which is enclosed. Our SRS TMP scoping letter concluded that “Route inventories in all parts of the TMA should include a baseline of all roads and trails, if any, that are or will be proposed to be closed as a result of the Dingell Act wilderness designation.”

5(b).  Accounting for the Permanent Closure of Existing Routes in New Wilderness Areas

Over three years later, the draft TMP fails to provide a baseline of all roads and trails that are in wilderness designated by the Dingell Act within the SRS TMP planning area. As stated, the Organizations are aware of 74 miles of Class D roads and at least that many miles of other motorized routes that were in continuous use for decades up to 2018 or later. Ten examples of such routes are enclosed. We are also aware that your agency has an inventory of these routes, so it would be easy for you to show them to the public on a planning map or at the very least acknowledge the total mileage of these routes permanently closed by wilderness designation, which is what the San Rafael Desert TMP did when acknowledging that 80 miles of existing routes were permanently closed by the Labyrinth Rims wilderness area.

5(c).  Managing Displacement due to Closures by the Dingell Act and the Draft TMP Alternatives

Given that at least 150 miles of routes were permanently closed by wilderness designation in the SRD TMP planning area, displacement of that use to other parts of the planning area is inevitable, yet the draft TMP yet again denies the existing of such displacement from these routes or the hundreds of miles of routes that would be closed by alternatives B or C. The draft TMP in Section 3.3.4.1 “Affected Environment” on Page 51 states “Based on this prominent concentration of recreational use, even though the alternatives would change the route networks available for motorized recreation opportunities, they would not meaningfully change visitation to these popular areas nor would they result in visitor use being distributed differently across the TMA.” In fact, displacement has already begun through blocking off the existing routes permanently closed by wilderness designation, and it would increase greatly by alternatives B or C that would result in blocking off hundreds of miles of more existing routes. This reality must be acknowledged and handled by any environmental assessment such as the draft TMP in order to successfully manage recreation and conserve resources.

5(d).  Honoring the non-wilderness management for areas not designated as wilderness

The September 18th, 2019 Congressional Record from Senator Romney stated “The driving force for this compromise bill was the desire for countywide land use certainty.” This certainty applies to non-wilderness areas just as it applies to wilderness areas. He elaborated:

For example, it was important to not close a road, trail, airstrip, or prohibit other existing use in the legislative text or corresponding map with a wilderness designation. Further, to avoid applying more restrictive designations, such as wilderness, to areas it would limit ongoing activity, such as grazing or recreation.

Clearly if Congress had intended NAs in the SRS TMP planning area to be managed as wilderness, it would’ve designated them as wilderness. This is yet another reason not to promote WC in NAs let alone LWC units.

5(e).  Honoring continued access of the routes that comprise wilderness boundaries

The September 18th, 2019 Congressional Record from Senator Romney also stated:

On the topic of roads, stakeholders worked closely with BLM to ensure all roads in the 2008 Resource Management Plan were “cherrystemmed,” meaning they were not included in a wilderness designation. Our intent was to maintain these roads and for those designated as “open” to stay open. These cherry-stems are of various sizes and were intended to ensure an adequate corridor exists to facilitate necessary maintenance.

Given that Senator Romney’s entire statement was roughly 700 words, it’s reasonable to assume that this intent would apply to other types of routes that comprise wilderness boundaries, such as the Waterfall Trail. Yet this motorized singletrack that has been designated by the BLM and maintained by motorcycle groups for decades is closed in Alternative B. Such a closure would be a violation of the good-faith agreement that was shared among those that negotiated during this bill’s process.

6. Recent Supreme Court Rulings

This year even more reasons have emerged for the BLM to avoid promoting WC in the SRS TMP planning area, specifically recent Supreme Court decisions such as Loper Bright Enterprises v. Raimondo, June 28, 2024 that reaffirmed the judicial review of an agency’s legal interpretation. The draft TMP in Section 3.3.2.1 “Affected Environment” on Page 34 asserts “Distinct from any planning decisions, under 43 CFR § 8342.1 the BLM has the obligation to minimize impacts to resources, including wilderness character, when designating OHV routes.” The BLM should be cognizant of the extent to which such agency guidance is actually grounded in legislation. When clear authorization is lacking, administrative actions are now more likely to be ruled a bypass of requirements such as the Section 603 release and Section 202 multiple-use mandate of FLPMA. The argument that the BLM is merely conducting minimization pursuant to the 2017 Settlement Agreement could be unavailing if that exercise is wholly or partially beholden to administratively-created special designations that wind up no longer holding under the glaring Congressional authority of the Section 603 release and Section 202 multiple-use mandate of FLPMA.

7. Conclusion

For all these reasons, the Organizations caution your agency against promoting WC outside of the many wilderness areas that have already been designated in the SRS TMP planning area. As for the many other natural and cultural resources, managing for them should start with completing an RMP amendment and RAMP before the TMP, as the proper order is important when planning motorized routes that are cherished by millions of Americans.

Sincerely,

Clif Koontz
Executive Director
Ride with Respect

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President
Colorado Off Road Enterprise

Bureau of Land Management
Price Field Office
125 South 600 West
Monticello, Utah 84501

RE: San Rafael Swell Travel Management Plan (DOI-BLM-UT-G020-2019-0019-EA)

Dear SRS TMP Project Manager:

These comments on the BLM’s Draft Environmental Assessment of the San Rafael Swell (SRS) Travel Management Plan (TMP) are a supplement to the primary comments that all three of our groups submitted earlier today along with the Colorado Snowmobile Association and Colorado Off-Highway Vehicle Coalition.

1. Background of Our Organizations

In our comments, the “Organizations” will refer to the following three 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.

Ride with Respect (RwR) was founded in 2002 to conserve shared-use trails and their surroundings. Since then, over 750 individuals have contributed money or volunteered time to the organization. RwR has performed over 20,000 hours of high-quality trail work on public lands, most of which was in the Moab Field Office. In the Price Field Office, RwR has participated in the 2008 RMP and subsequent travel planning.

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. Clarification of our Primary Comments

Regarding the primary comments that we submitted earlier today, which suggested amending the 2017 Settlement Agreement mentioned herein, please note that the Organizations (CORE, RwR, and TPA) were referring only to amending the SRS TMP deadline originally set forth in that Settlement Agreement. Specifically the deadline should provide sufficient time to complete Price Resource Management Plan (RMP) amendments related to the Dingell Act and to develop the SRS Recreation Area Management Plan (RAMP), both of which are identified in the BLM’s 2023 scoping report for RMP amendments, and then to finish the subject TMP. The Organizations (CORE, RwR, and TPA) see this deadline extension as being necessary due to the unforeseen superseding event of the Dingell Act and its wide impact on the planning area for the SRS TMP.

3. The draft TMP baseline for analysis is inaccurate.

The planning area’s current management situation under the 2008 Price RMP is not accurately described in the draft TMP’s No Action Alternative, Alternative A. That Alternative as currently drafted misstates and misinterprets on-the-ground and management conditions under the no-action scenario. For example, many routes reflected in the 2008 baseline map are not included in the 2024 Alternative A map. These routes are critical to any analysis seeking to create a new travel plan in 2024 for many reasons.

4. The TMP stepdown plan should be done after completing its foundation in the RMP and RAMP.

It is nonsensical for the draft TMP to leapfrog the Dingell Act and tether the Alternative A No-Action scenario directly to the 2008 RMP. There was no Dingell Act Congressional Wilderness in the planning area in 2008. This results in an incorrect rendering of the No-Action Alternative, particularly given the Dingell Act’s at-law and factual releases of significant parts of the planning area back into multiple use management.

The state of Alternative A as described above, shows among other things that the current San Rafael Swell travel management planning effort must be put on hold, until the Price FO RMP is properly amended under a NEPA compliant FLPMA 202 process to reflect and implement all changes brought to the planning area by the Dingell Act. Otherwise, this TMP process is “cart-before-the-horse,” premature, and unlawful under NEPA, FLPMA, and the Dingell Act itself. Examples of impacts to travel planning from general RMP amendments include WSA releases and the important consideration of potential changes to the SRMA, Natural Areas, and resulting fragmentation of such polygons here and there in the planning area as a result of implementing the Dingell Act in the 202 plan amendment process.  These weighty potential impacts to travel planning considerations point to only one rational and NEPA compliant sequence:  Amend the RMP first, consider its effects, and then and only then turn to travel planning.

The foregoing considerations apply equally to the SRS RAMP. The Dingell Act’s designation wilderness acres, release of acres from WSA status greatly impact the ability to gauge the extent and character of sufficient recreational opportunities in the area. All of this needs to be considered and implemented to provide an accurate baseline understanding of Alternative A for TMP purposes, and counsels strongly for putting the current TMP process on hold. The Swell RAMP is only at the development stage and far from complete. Any potential change in the Swell RAMP must first be considered. This sequencing problem renders the current travel planning effort out of order and thus inherently NEPA, FLPMA, and Dingell Act deficient.

Further under FLPMA Section 602 and 603, the Dingell Act’s release of certain public lands in the planning area from further WSA/ISA status, returns those lands to the default FLPMA multiple use and sustained yield management regime. The current draft TMP has failed to adequately consider and provide for this reality.

No amount of excuse-making by the BLM in the draft TMP could reasonably alter the foregoing fundamental NEPA planning requirements, but in any event, the draft TMP omits any mention of the RMP amendment process at all and makes only scant reference to the RAMP, at Section A.4 of Page 117.

In addition to halting the current TMP process, the BLM as a party to the 2017 Settlement Agreement should seek an extension of the Agreement’s TMP deadline long enough to implement the Dingell Act and do the needed plan amendments referenced above. The Dingell Act brought significant changes to conditions and controlling standards for the planning area. Those changes were unforeseen, and they render the current travel planning effort premature, out of order, and without crucial foundation in relation to the fundamental planning area changes that must first take place in light of the Dingell Act. These conditions warrant extension of the Settlement Agreement TMP deadline.

5. Sound planning must clearly articulate the rationale for each proposed decision.

The information set forth in the draft TMP, including the route reports (however voluminous they may be), is NEPA deficient when it comes to explaining the basis or rationale for the various proposed route closures in the range of alternatives. The information amounts to little more than route-by-route conclusions as to what will be closed, with little to no underlying data, and no analysis and application of data or other criteria to explain any of the proposed route closures. The NEPA deficiencies here include (a) failure to take a hard look at the routes and the conditions in support of or against closure, (b) a failure of transparency, (c) failure to inform the public, and (d) arbitrary and capricious governmental decision making.

6. Minimizing potential adverse effects to cultural sites cannot be the rationale for restricting use on more than a few of the routes that are included in any of the four alternatives.

The DEA Table 3-5, “TMP Effects on Historic Properties Under Section 106,” indicates that, of the routes in any of the four alternatives, only 6 cultural sites could potentially be adversely affected. Therefore any TMP decision that restricts use on more than a few of these routes to minimize potential adverse effects to cultural sites would. Even when it comes to routes that have the potential to adversely affect these 6 sites, closure should only be considered after other remedies such as interpretive signs, route marking, tread work, or relocating the route.

7. The socioeconomic analysis fails to recognize major negative impacts of alternatives B and C.

Alternative B and even Alternative C would greatly harm the livelihoods and lifestyles of surrounding communities. First, the analysis area should certainly include Wayne County, as Hanksville and Loa are the closest towns to the southern half of the SRS TMA. Both towns rely on dispersed recreation opportunities across the San Rafael Swell and Mussentuchit areas.

Second, the draft TMP states “On the basis of the above analysis, BLM believes there would be only minimal impacts to the planning area’s economy under any alternative, and detailed analysis is not required. There are no past, present or reasonably foreseeable actions that would alter this conclusion” (Section A.10 AIB-10 on Page 126). The idea that alternatives B and C would have only minimal impacts to the planning area’s economy is absurd. Motorized recreationists from all over the world visit this area for the network of trails that are generally uncrowded, extensive for exploration, and reaching remote areas with rugged terrain and exceptional views. All of those qualities would be more scarce in alternatives B and C, greatly reducing the effective carrying capacity of the route network, and greatly reducing its word-class nature.

For example, Alternative B would close Five Miles of Hell, VJ, and Waterfall Trail. These are not only some of the best motorized singletracks in the Temple Mountain trail system, but best in Utah, best in the United States, and best in the world. These gems couldn’t be substituted by other routes such as the Green, Blue, and Red trails. Even if they could, it’d double the crowding. These gems couldn’t even be reproduced by constructing new trails, as the high-quality terrain has been designated wilderness or a recreation area that prohibits constructing new motorized routes. Thus closing these gems could easily reduce the number of people who choose to stay in—or establish residency in—nearby towns such as Green River and Hanksville. Suffice it to say that analyzing socioeconomic impacts is needed.

8. The draft TMP route inventory is substantially incomplete.

The “total evaluated route network” is missing many existing routes that warrant analysis through a route report and consideration in draft alternatives. Some of these routes are on motorized route maps produced by Emery County as well as the Emery County Trails Committee. Others are not county roads, but are nevertheless viable worth of due consideration. Here are just a couple examples:

1. Parallel route of UT-72 between SS6193 and SS6184 – This old constructed road, which is just west of Highway 72, is three miles long. It allows OHV riders to connect many routes without going on the highway, which benefits recreation as well as highway users. See the enclosed photo, ” RwR TPA CORE – parallel route of UT-72 from middle of route looking N.”
2. Old Woman Wash from SS2533 to UT-24 – This major wash connects the Reef road to the San Rafael Desert on the other side of Highway 24. It goes under a highway bridge that’s unobstructed, at which point it’s less than a quarter-mile from a route designated open in the 2022 San Rafael Desert TMP. This route, Old Woman Wash, is what most OHV riders actually use to cross Highway 24 instead of Temple Wash. Also this route, Old Woman Wash on the west side of the highway, is part of BLM-permitted motorcycle race courses including the 1987 Mail Run. See the enclosed photo, ” RwR TPA CORE – Old Woman Wash from SS2533 looking E.”

9. Alternatives B and C would close many routes without any reasonable justification.

Alternatives B and C would close hundreds of miles of routes that are of great recreational value, that are quite feasible to manage, and that would not cause considerable adverse effects. These routes have been continuously used for decades, and should not be closed without compelling reasons. Here are just a couple of examples:

1. Overlook of Blue Trail Canyon (SS66096) – This old bladed road reaches a great view of Blue Trail Canyon. It has a flowing alignment through gentle hills of pinion and juniper that naturally encourage OHV riders to stay on the route. The view is just a half-mile from Interstate 70, thus the setting is already quite motorized. See the enclosed photo, ” RwR TPA CORE – view of SS66096 endpoint from N.”
2. Farnswoth Tanks Loop (SS2540) – This old bladed road has a sinuous alignment and modest grades, providing a short but fun loop in an area with high OHV use from campers and day visitors alike. See the enclosed photo, ” RwR TPA CORE- SS2540 from SS2533 looking S.”

10. Conclusion

We appreciate the work that your agency has done thus far to develop an SRS TMP, but it is simply premature, and the focus should be turned to amending the Price RMP and developing an SRS RAMP.

Sincerely,

Clif Koontz
Executive Director
Ride with Respect

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President
Colorado Off Road Enterprise

BLM Price Field Office,
125 South 600 West
Price, UT 84501

Via Portal Only

Re:  San Rafael Swell Travel Management Plan

Dear Sirs:

Please accept this correspondence as the request of the above Organizations for development of a meaningful manner to engage with the public regarding a single vision for the future management of this area.  Unfortunately, managers are not providing a single cohesive planning effort for the entirety of the Swell area that might be legally sufficient, such as those created by an EIS.  Rather the public has been provided a series of Environmental Assessments that are at best questionably relevant, poorly reconciled and even more poorly supported with detailed analysis or recognition of the complexity of current planning in the area.  Planners appear to want to push resolution of the many challenges in the area to the public in commenting rather than providing a range of alternatives to the public for comment under an EIS. Any assertion that the remnants of the Price RMP in the Swell area, the newly designated Recreation Area, more than 400k acres of new Wilderness can provide a cohesive vision for the management of the area is immediately undermined by the further legal issues around the Price FO efforts and that the Recreation Area plan is only in scoping.

This lack of cohesive vision reopens many of the planning failures that resulted in the settlement agreement the Proposal asserts to satisfy.  BLM has already asserted to the 10^th Circuit that they could undertake meaningful planning in all the areas within the Settlement Agreement.  We would assert they have been unable to achieve this goal. Without this cohesive vision for the area, how can any argument be made that travel plan is minimized impacts in alignment with the requirements of EO 11644.  Such an assertion simply cannot be made as the RMP standards do not exist. As an example, the Dingell Act mandated that all areas identified in the §603 inventory not designated as Wilderness must be managed for multiple use. The existing Price FO RMP does not have provisions to address this situation, making RMP compliance on this issue impossible.  While this request is technically outside the scope of the Proposal, The Organizations believe development of a travel plan must start from a position of a solid vision of management goals and objectives now and into the reasonably foreseeable future. That simply has not been provided.

With regard to the current TMP Proposal ( hereinafter referred to the “Settlement TMP” or Proposal), the Organizations must voice their support for 2008 current management in the Area and concern that 2008 current management is not reflected in Alternative A of the Proposal as is mandated by the Settlement Agreement in this matter. Rather Alternative A is an updated interpretation of 2008 management where the most restrictive interpretation of any ambiguity is taken. Under the Settlement Agreement, what is presented as Alternative A cannot exist as there was no Congressionally designated Wilderness in the planning area in 2008.  Many routes were reflected in the 2008 baseline map that are not included in the Alternative A map in 2024.  Some trails such as the ebike network at the north end of the planning unit are never mentioned in the RMP at all. These routes are critical to any analysis seeking to create a new travel plan in 2024 for many reasons. The Organizations vigorously assert that Alternative A must at least start from a single point in time but has rather incorporated closures and other projects when it was suitable. The EA fails to provide even a range of alternatives on the many ambiguities in the existing RMP. Alternative A must be the baseline and only reflect the 2008 TMP effort with all its ambiguities and problems and this baseline is critical.

The motorized community vigorously objects to Alternative B of the Proposal as this entirely fails to provide any meaningful multiple use opportunities for recreation. While Alternative D of the Proposal is might be closest to something we can support as it asserts to close only 52 miles (2%) of routes, this Alternative fails to address that existing RMP/TMP decisions that were challenged already closed more than 730 miles (25%+/-) in the planning area. While a 2% closure may appear appealing, it is 27% closure rates from historical usage. Our concerns with the management baseline expand further as the management baseline fails to address the Congressionally mandated changes in the planning area, that heavily impacted public access to many areas. These were large changes; they warrant meaningful analysis in the Alternatives which simply has not been provided.

Our support for current management is also driven by a foundational failure in the Proposal, mainly that the cumulative impacts of the various planning efforts within the area are not meaningfully addressed.  The Organizations cannot overlook the fact that the Swell Recreation Area RMP is under development.  This causes concerns on how these planning efforts will be aligned and conflicts between decisions be resolved.  If there is a change in the Swell Recreation Area RMP that is inconsistent with the Settlement TMP, how would that be resolved? Is the existing 2008 Price FO RMP even a viable planning document? We are now facing many challenges that were never addressed in the 2008 Price FO RMP. The designation of 400,00 plus of Wilderness and more than 200,000 acres more where road development is capped creates problems on issues of how sufficient recreational opportunities will be provided in the area? This limitation in the Swell Recreation Area makes an accurate version of Alternative A critically important. The Price FO RMP identified many areas for expansion of recreational opportunities that are now closed to most recreational opportunities.  Where can these areas be replaced? This type of balance and analysis is critical given the numerous Statutory and Executive Orders mandating these analysis processes in planning.  We are unable to find any analysis that even arguably satisfies this requirement currently or in the situation of multiple planning efforts moving at the same time in the same planning area.

The Organizations have been involved in discussions around access to these areas for more than a decade, both in the development of travel and resources management plans. In addition to the planning efforts, our involvement has continued on behalf of recreation interests in litigation, stretching from the Settlement in SUWA v. U.S. DOI, Case No. 2:12-cv-257 DAK (D. Utah). to bringing successful jurisdictional challenges in SUWA v. Babbitt, 2000 U.S. Dist. LEXIS 22170 (D. Utah 2000), rev’d, 301 F.3d 1217 (10th Cir. 2002), rev’d and remanded, Norton v. SUWA, 542 U.S. 55 (2004). We remain committed to this presence in the ongoing management of Utah BLM lands. Many of our local partners have intervened in defense with the BLM when legal challenges were brought that has resulted from the Settlement now being implemented and have continued to be involved with planning/travel efforts throughout the region. We have worked hard to support these efforts in many ways.  We are intimately familiar with the difficulties that the BLM has encountered in the management of this area and region more generally. This makes successful management decisions critical to allowing access to the Planning area which is one of the few remaining multiple use areas in the region. Moving forward with the successful path that has been developed for this area is the only way forward in the Organization’s opinion but unfortunately that path has not been provided in the Proposal.  While the routes and opportunities at issue in the Proposal are world class, the analysis of the Proposal falls well short of aligning with that value.

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. Ride with Respect (RwR) was founded in 2002 to conserve shared-use trails and their surroundings. Since then, over 750 individuals have contributed money or volunteered time to the organization. RwR has performed over 20,000 hours of high-quality trail work on public lands, most of which was in the Moab Field Office region. In the Price Field Office, RwR has participated in the 2008 RMP and subsequent travel planning. Our mission is to keep trails open for all users to enjoy.  For purposes of these comments, TPA, CSA, CORE, RwR and COHVCO will be referred to as “the Organizations.”

1b. Preliminary thoughts

The Organizations vigorously assert that there is a compelling need for a coherent plan and coordinated planning process for this area.  This simply has not been provided.  What has been provided is a confusing often conflicting effort that has two management efforts in the same area occurring at the same time and often interchanging terms.  Not only is this process confusing, many of the failures in the underlying 2008 RMP/TMP process are simply never addressed.

2. Scoping was confusing as to what areas were being discussed. Should clearly identify zones accurately with names that are unrelated to designations. Management areas should be called zone 1 zone 2 zone 3. Even basic decision making such as this has been avoided.

History is complex and overlapping which only compounds the need for consistency in analysis on issues such as what is the proper planning effort to raise concerns in.  A brief summary of the planning history of this area is as follows:

The frustration from this entire process is immediate as the Organizations and our members consistently hear from BLM about the need for substantive comments on proposals from users’ groups. Here problems are immediately apparent from scoping on the ability of the public to provide substantive comments and rather than resolving this confusion planning efforts with tools that are available to the BLM, these tools have largely ignored this confusion and on many occasions made confusion much worse.

Many issues present in the 2008 RMP/TMP remain unresolved and in many cases are worse now than ever before.  The Organizations are frustrated that confusion of issues and planning efforts should have been immediately identifiable with a basic review of public scoping from the 2021 effort on the Settlement. Our frustration from this failure stems from the fact that in the 3 ensuing years from this scoping, BLM has done nothing to resolve this conflict, such as utilizing the specific provisions of the Settlement to address unforeseen issues that arise from its implementation.  The Organizations would vigorously assert that the passage of the Dingell act would be such an unforeseen issue.  The passage of the Dingell Act made resolution of the underlying failures in the RMP/TMP only that much more important in the planning area, regardless of the name sought to be applied.

2(a) Why an EA instead of an EIS?

Prior to addressing the numerous challenges created by the Proposals failure to recognize the RMP silence on many issues critical to the TMP, the failure of the Proposal to address the numerous other planning efforts that are occurring concurrently with this effort in the planning area must be addressed.  Currently the Swell Rec Area RMP and the Settlement TMP are proposed to be separate, which is problematic on the ground and overlooks the significant changes that have been mandated as a result of Congressional actions in the TMP outside the Swell Rec Area. The BLM proposes to create an RMP for the recreation area created by the Dingell Act, which alters the management of almost 50% of the FO footprint and then manage the remaining portion of the FO under the 2008 RMP. These changes clearly alter significant portions of the assumptions and conclusions that were reached in the 2008 Price FO RMP.  This situation is simply never addressed in the Proposal, and after reviewing the Proposal, the public could easily conclude that the recreation area planning effort is not occurring, as it is never mentioned in the Proposal. This creates immense problems for the Proposal.

The project and its more than 2 decades of history of the failures in BLM attempting to manage this area clearly warrant an EIS level of analysis to resolve issues the Dingell Act created within the Swell Recreation Area and to address the management changes that the Dingell Act created outside the Swell Recreation Area as well. This only compounds the many issues and ambiguities in the 2008 Price FO RMP outside the Swell Recreation Area. Rather than structuring the basic NEPA analysis as an EIS with an RMP amendment to attempt to resolve these all issues with some level of consistency, the Proposal moves forward with several EA’s for the planning area. This EA fails to address the fact there are multiple efforts being undertaken and largely avoids any discussion of many foundational issues around the TMP or the possibility that an RMP amendment must be undertaken to resolve the challenges in the area.  This history is problematic enough and sometimes compounds failures of the BLM management that have spanned more than 50 years that the Dingell Act actually resolved.

2(b) Many Offices were challenged on the minimization criteria within similar timeframes and many have resolved these challenges and moved on.

The Organizations are aware that many planning offices across the country received legal challenges on the sufficiency of their minimization efforts from many of the same plaintiffs that challenged the Price FO RMP/TMP. Our Organizations and partners have intervened in defense of these claims, in the same manner our groups intervened in the legal challenges to the Price FO efforts.  As an example, the Pike/San Isabel NF received the same type of legal challenge from same plaintiffs at almost same time and a settlement was reached in this challenge in November 2015. This is where the planning efforts between these offices take profoundly different paths as the PSI immediately moved forward with an EIS not an EA and embraced development of an accurate and complete Alternative A.  The PSI efforts presented their own complexities as most travel planning on the PSI had been done with site specific efforts as their RMP was issued in 1984.  Much of the documentation for these EA had been lost simply due to the passage of time which compounded the challenges presented by an RMP that was at best comically out of date. A final decision was issued by the PSI on November 2020.[1]  While there are of course challenges to this decision, it has been completed.

The Organizations do not contest that the PSI effort is a far less complex management situation as there was no intervening Congressional actions involving WSA releases, WSA designation as Wilderness and Congressionally designated Recreation Areas in the PSI effort.  Despite the far more complex management situation presented, the Price FO has chosen to slowly move forward with a series of EA, that are only entering scoping after other offices have completed their obligations under similar settlement terms. This is simply a problem on many levels.

3(a) NEPA requirements for the planning situation now being faced in this area.

The challenges facing the planning area and the Proposal are significant, multifaceted and cannot be overlooked, especially since they have been the basis of a 10^th Circuit Court action already almost a decade old.[2] Rather than meaningfully addressing these challenges as was recognized as necessary by the Circuit Court and providing a Range of Alternatives when there is ambiguity in current planning the Proposal draws horribly arbitrary divisions in planning. Rather than recognizing the ambiguity and addressing it with a decision at the proper level of planning and then providing a range of alternatives, absolutely no analysis is provided regarding how these decisions were made is provided in the EA. These decisions will create conflict and present an inaccurate summary of the efforts by the agency and Congress to minimize impacts in this area. The Proposal moves forward with a model that expands these conflicts by attempting to address each effort in isolation and fails to address the basic requirements of NEPA and other planning documents to resolve situations like this.

The Proposal suffers from foundational failures in analysis in the Settlement TMP process that stem from failures in the RMP and drove the Settlement Agreement originally. These foundational 2008 RMP/TMP failures were challenged by numerous parties in the various litigation underlying this matter. While we intervened in defense of claims against the BLM, we had concerns with the 2008 TMP as well. In the development of the Proposal, it appears that entirely different planning standards are interchanged without recognition that these are two entirely separate planning standards and requirements. These failures do not resolve concerns around underlying sufficiency to decisions but rather highlights them.  As an example of this interchanging of management standards would be reflected in the management of open areas the RMP specifically identifies for future management actions.  BLM admits the 2008 RMP erroneously published maps with no routes in these areas in the Proposal. We would agree that this mapping error occurred and should be fixed and would like to retain the option of future planning in these areas. This is simply not provided under any alternative.  BLM appears to assert that their compliance with EO 11644 is somehow achieved compliance for NEPA purposes. There is no such presumption we are aware of and presumptions such as this are what caused the original settlement agreement to be reached.

The Organizations must recognize the unusual path that the Office has chosen for NEPA compliance. Many other offices have faced similar legal challenges around their compliance with the minimization criteria and almost exclusively have moved into an EIS.  Often these Offices have moved forward with an EIS in management situations that are far less complex than those facing the planning area.   This decision largely aligns with the NEPA statutes that clearly and specifically requires an EIS be prepared in the following situations:

(2) all agencies of the Federal Government shall–
(A) utilize a systematic, interdisciplinary approach which will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man’s environment;
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations;
(C) consistent with the provisions of this chapter and except where compliance would be inconsistent with other statutory requirements, include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on–
(i) reasonably foreseeable environmental effects of the proposed agency action;
(ii) any reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented;
(iii) a reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal;
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and
(v) any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed agency action should it be implemented.[3]

The Organizations submit this entire planning effort fails to achieve these goals at any level. Rather than utilize a systematic, interdisciplinary approach which will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man’s environment the public has been provided multiple over lapping planning efforts spanning decades. The lack of a systemic approach is further compounded by the Proposal failing to address why decisions were only partially implemented, decisions are altered or changed in the current management outline.

CEQ regulations specifically addresses the need update or amend existing NEPA analysis as follows:

(d) Supplemental environmental impact statements. Agencies:
(1) Shall prepare supplements to either draft or final environmental impact statements if a major Federal action is incomplete or ongoing, and:

(i) The agency makes substantial changes to the proposed action that are relevant to environmental concerns; or
(ii) There are substantial new circumstances or information about the significance of adverse effects that bear on the analysis.
(2) May also prepare supplements when the agency determines that the purposes of the Act will be furthered by doing so.
(3) Shall prepare, publish, and file a supplement to an environmental impact statement (exclusive of scoping (§ 1502.4 of this subchapter)) as a draft and final environmental impact statement, as is appropriate to the stage of the environmental impact statement involved, unless the Council approves alternative arrangements (§ 1506.11 of this subchapter).[4]

While there is ambiguity in these statutes and CEQ requirements, the failure of the BLM to provide any analysis on how this ambiguity was resolved and how the determination that multiple overlapping EAs could achieve the goals and objectives of the settlement agreement is problematic.  Rather than addressing these issues they are avoided and the Organizations are concerned that these decisions have directly impaired public comment and engagement on issues critical to the long-term success of the management of the area.  The Organizations are further concerned that ultimately this EA will be another in the long string of failed management efforts in the planning area.

3(b) Council on Environmental Quality 40 questions provide detailed guidance on the appropriate manner of supplementing an EIS.

The problematic starting position of the Proposal and its desire to resolve all the issues facing implantation of the EIS the planning area with just an EA is immediate when the guidance of the Council on Environmental Quality provided in the NEPA 40 Questions guidance is reviewed. The CEQ 40 questions guidance specifies an EIS as follows:

32. Supplements to Old EISs. Under what circumstances do old EISs have to be supplemented before taking action on a proposal? A. As a rule of thumb, if the proposal has not yet been implemented, or if the EIS concerns an ongoing program, EISs that are more than 5 years old should be carefully reexamined to determine if the criteria in Section 1502.9 compel preparation of an EIS supplement. If an agency has made a substantial change in a proposed action that is relevant to environmental concerns, or if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, a supplemental EIS must be prepared for an old EIS so that the agency has the best possible information to make any necessary substantive changes in its decisions regarding the proposal.

The problematic nature of the Proposal assertions that an EA can be used to resolve the major challenges that have arisen from the 2008 EIS is immediately apparent when the Regulations are reviewed.  The decision is further drawn into question given the decisions of other planning offices that have faced similar challenges in a less complex management environment. It would have to be an exceptionally detailed EA to satisfy these challenges and the EA provided is far from exceptionally detailed.  These failures cause the EA to fall short of and sufficiency of an EA.

The Council on Environmental Quality has also explicitly addressed situations where there have been significant changes in proposals and objectives of polices and legislation impacting the analysis area. Again, the CEQ regulations clearly and directly require changes to be addressed in a systemic defensible manner as follows:

23a. Conflicts of Federal Proposal With Land Use Plans, Policies or Controls. How should an agency handle potential conflicts between a proposal and the objectives of Federal, state or local land use plans, policies and controls for the area concerned? See Sec.  1502.16(c).

A. The agency should first inquire of other agencies whether there are any potential conflicts. If there would be immediate conflicts, or if conflicts could arise in the future when the plans are finished (see Question 23(b) below), the EIS must acknowledge and describe the extent of those conflicts. If there are any possibilities of resolving the conflicts, these should be explained as well. The EIS should also evaluate the seriousness of the impact of the proposal on the land use plans and policies, and whether, or how much, the proposal will impair the effectiveness of land use control mechanisms for the area. Comments from officials of the affected area should be solicited early and should be carefully acknowledged and answered in the EIS.

Again, the Organizations are not asserting it is impossible to resolve issues such as this with an EA, however it would have to be an exceptionally detailed EA. That has not been provided and forces us to question why the guidance of the CEQ 40 Questions on the appropriate level of analysis was not followed in this situation.

3(c) NEPA regulations mandate an EIS to resolve issues such as those facing the management areas.

The planning efforts for the area have taken an unusual path of development given the many recent plan revisions, court settlements and Congressional actions that have mandated significant changes to much of this portion of the Price FO. The complexity of the situation is made even greater as a result of the Price FO failure to implement many of the changes required and failure to move forward with site specific planning for other areas as was promised in the RMP.

In many areas, recreational access was permanently lost or heavily restricted by Congressional action in areas that were identified for expansion of recreational opportunities in the RMP. The challenges presented by this situation alone are immense.  These are significant changes to current management that must be resolved and addressed to comply with NEPA, BLM regulations and relevant court cases.  This simply has not occurred in the Proposal or any related planning effort as the Proposal simply picks different particular points in time to address changes rather than addressing all changes at a single time.  Certainly, the necessity of an EIS cannot be avoided simply through the manipulation of the planning process to allow a decision that related actions are unrelated. This is improper and allows RMP provisions to be violated as exemplified by the closure of areas that were restricted to existing routes only and identified for future site-specific planning. The failure to address these basic changes in a systemic and rational manner will result in immense new user conflicts in the planning area. After review of the Proposal, we are unable to locate any portion of the Proposal that outlines challenges such as user conflicts or how they could be impacted by the various Congressional efforts impacting the planning area or how the Proposal seeks to reduce these conflicts.

Again, the Proposal avoidance of questions such as those we have raised already is contrary to the NEPA regulations addressing the proper scope of a NEPA action.  NEPA regulations clearly define the scope of any planning effort as follows:

“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.”[5]

If the Planners were able to achieve a plan that allows a much narrower scope that is provided for in the regulations, the Proposal must address how planners have reached decisions and determined several EA can achieve the alignment of decisions within the scope of an EA this must be addressed.  If there are safeguards that are being put in place to avoid conflicts between these decisions and how issues such as the possible need for an RMP update have been resolved with the process. None of this information has been provided and the immense problems that will result cannot be overlooked. Many of these decisions are critical to the success of the many related efforts being developed

4. The Proposed scope of analysis conflicts with BLM travel planning regulations.

As addressed previously, the Organizations have concerns regarding the positioning of this effort for successful NEPA compliance. Unfortunately, NEPA compliance is not the only standard that the Proposal fails to satisfy.   The profound conflict that results with BLM travel planning regulations is evidenced when the relationship of the goals and objectives of a TMP and the current effort are compared.  These goals and objectives are specifically outlined as follows:

“The TTM process seeks to identify and understand the use of existing transportation features (roads, primitive roads and trails), incorporate the existing and future needs for transportation, access and recreational opportunities, and use an interdisciplinary planning process to develop appropriate travel networks and recreational opportunities that reflect the environmental concerns and legal requirements of a Resource Management Plan (RMP) process.

The goal of the TTM process is to create travel networks that are logical and sustainable, as well as meet the increasingly diverse transportation, access and recreational needs of the public. The process moves from broad scale interdisciplinary planning achieved in a RMP, to more specific Activity or Area Plans, and further to specific implementation and maintenance actions for roads, primitive roads, trails, and other access and recreation related needs.”[6]

While viewing the settlement agreement in isolation might be perceived as an easy path forward, we must question that decision. The Organizations must make it clear that we are not asserting the Settlement Agreement should have foreseen the passage of the Dingell Act and the dramatic differences and revisions for the planning area that would result from its passage. The Organizations must question why the settlement agreement was not updated subsequent to the passage of the Dingell Act as this is a significant change in conditions for the planning that was unforeseen. What the public has been provided is an EA that fails to meaningfully address challenges and gaps in the RMP.  This is unacceptable as the goals of the TMP process cannot be achieved without a single vision and starting point of discussion and planning.

5. Relevant court decisions have consistently struck down attempts at structuring EA to avoid an EIS

As noted in these comments, the Proposal faces immense challenges in establishing the basic legal sufficiency of the scale and scope of the management model that has been adopted for the effort. The Organizations vigorously assert that the decision to move forward with several EA rather than an EIS for the area has allowed basic issues to remain unresolved.  Questions around the applicability of the RMP to the management situation being faced are not addressed. What is the proper starting point for the planning effort are again not addressed as these are multiple EA rather than a coordinated EIS.  Courts reviewing these requirements have strictly applied these statutory and regulatory requirements for NEPA as evidenced by the Supreme Court decisions, which clearly state as follows:

“Section 102(2)(C) requires that an impact statement contain, in essence, a detailed statement of the expected adverse environmental consequences of an action, the resource commitments involved in it, and the alternatives to it.”[7]

The conflicts with this standard are again immediate for the Proposal. Resources have been committed to developing a defensible TMP for the planning area for decades. There can be no argument that the possible commitments of resources have already begun as the Recreation Area plan scoping effort has already begun.  As the RMP for the Swell Recreation Area is mandated by federal law, recompletion of this effort will be achieved.  There are many questions of how the relationships between the settlement and intervening legislative action can be resolved. Rather than developing and resolving this situation in a coordinated and systemic manner under an EIS, planners have chosen to adopt several smaller EAs for a piecemeal analysis of issues in isolation to each other. No discussion has been provided regarding how these decisions were developed. This chosen path of issue resolution and plan development will create more conflicts than it resolves.

The model adopted for development of the settlement TMP where satisfaction of the settlement requirements and complying with various legislative requirements is achieved in this piecemeal manner has been consistently stuck down in planning efforts far less complex.  When Courts have addressed the alignment of only two planning efforts on a single area, the Courts have consistently held as follows:

Characterizing any piecemeal development of a project as “insignificant” merits close scrutiny to prevent the policies of NEPA from being nibbled away by multiple increments, no one of which may in and of itself be important enough to compel preparation of a full EIS. (See, e.g., Named Individual Members of San Antonio Conservation Soc’y v. Texas Highway Dep’t (5^th Cir. 1971) 446 F.2d 1013.)[8]

There can be no argument that the nibbling of major projects with a series of smaller analysis prohibited by the Courts is exactly what is occurring with the Proposal and the numerous other factors that are involved in the management of the project area. With this clear concern from the courts on this model of NEPA compliance, Courts have refined the mandate of the Kleppe Supreme Court decision to more clearly define the definition of when an EA is sufficient and when an EIS is mandated.

“Section 102(2)(C) of NEPA requires an EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1982). While it is true that administrative agencies must be given considerable discretion in defining the scope of environmental impact statements, see Kleppe v. Sierra Club, 427 U.S. 390, 412-415, 96 S.Ct. 2718, 2731-2733, 49 L.Ed.2d 576 (1976), there are situations in which an agency is required to consider several related actions in a single EIS, see id. at 409-410, 96 S.Ct. at 2729-2730. Not to require this would permit dividing a project into multiple “actions,” each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.” [9]

The Thomas Court laid out six questions for roads that courts will look at to identify when an EA is needed and when an EIS is needed. These factors review issues such as the purpose and need; the sufficiency of current management, the cost/benefit analysis of separate EA to a single EIS; When these factors are addressed there can be only one conclusion, the Proposal and planning challenges must be addressed with an EIS. This resolution also requires an RMP update or amendment to resolve many other questions.

6(a)(1).  Alternative A must reflect current management prior to the 2008 TMP and not a partially updated version of 2008 TMP provided under the guise of Alternative A.

The Organizations concerns around Alternative A of the Proposal are immediate and profound as the Settlement Agreement clearly requires an entirely new TMP for the planning area. This was the heart of the legal challenge originally raised by the Petitioners and specified by the Settlement Agreement.[10]  Paragraph 13 of the Settlement Agreement paragraph specifically mandates that new TMP will be created as follows:

“13. New Travel Management Plans subject to this Settlement Agreement. BLM will issue a new TMP for each of the following travel management areas (“TMA”) within the Richfield, Vernal, Price, Moab, and Kanab Field Offices according to the deadlines set forth below, which will start to run on the effective date of this Settlement Agreement established in Paragraph 37. Each TMP will be considered issued upon the date the authorized officer signs the decision document approving the TMP.”

It is significant to note the settlement agreement says NEW TMP not updated TMP or something similar. The efforts to develop the Settlement TMP has to be management prior to 2008, which would be the 2003 TMP as this is the ONLY TMP that has been signed by the authorized officer and not withdrawn. As result this planning effort must start with the TMP in place in 2007 immediately before the 2008 TMP was finalized as Alternative A of the Proposal. What has been provided in the Proposal as Alternative A is not this map but something else as it appears planners immediately confused an update of an approved TMP with an entirely new TMP. In this updated Alternative A, many decisions have been made without public input and engagement on issues critical to the TMP baseline. Under NEPA the 2008 baseline for management was 2003 TMP not the 2008 RMP/TMP that has been subjected to an updating process without public input in any manner. That updating process would occur in violation of NEPA.

The improper updating of the 2003 TMP decision under the guise of Alternative A violates other provisions of the Settlement Agreement.  The issuance of an entirely new TMP is further mandated in the Settlement Agreement which specifically provides that none of the various claims against the TMP can be recognized as follows:

“3. This Settlement Agreement is for the purpose of settling the above-captioned litigation. Nothing in this Settlement Agreement shall be deemed as precedent in this or any other proceeding or shall constitute an admission or concession by any party as to the validity of any fact or legal position concerning the claims or defenses in this or any other proceeding.”

Many of the decisions made in the updating of Alternative A would result in the concession of many claims of parties, including those of the Organizations, which was specifically prohibited in the Settlement.  Questions such as the OHV-7 area management, various admitted mapping errors and other concerns outlined in these comments are important and we will make no concessions on their resolution.  The Organizations had concerns in the final plan and they have been in no way resolved.  NEPA requires a full analysis of these areas and a range of alternatives for resolution of management challenges in these areas. We are seeking that in this effort admit has not been provided.

The provisions of the Settlement Agreement allowing the 2008 TMP to be applied while the Settlement TMP is developed also do not support updating Alternative A outside the NEPA process in the manner that has occurred.  The Settlement Agreement clearly defines the scope of this application as it provides that the existing TMP may remain in effect but it does not alter the baseline for creation of the new TMP as follows:

“The TMPs for the Richfield, Vernal, Price, Moab, and Kanab Field Offices that are in effect as of the effective date of this Settlement Agreement will remain in effect until BLM issues new TMPs for the TMAs identified in paragraph 13;”

The Organizations vigorously assert that the current version of Alternative A directly and materially violates Paragraph 3 of the Settlement Agreement.  The Organizations had many concerns on mapping errors, incorrect boundaries and other issues with the TMP that the BLM asserted would be corrected as some of these failures were clearly recognized in the RMP.  It is unclear if these corrections ever occurred and Alternative A does not reflect what the TMP was supposed to be based on. As a result, the current version of Alternative A of the Proposal represents an interpretation of many issues that would directly prejudice our interests.  Alternative A would constitute a concession of many claims of our Organizations on the application of standards and other management decisions that was specifically preserved in the Settlement for our interests. We cannot accept this concession.

6(a)(2). The proposed application of the Settlement Agreement would result in the Settlement being illegal and void as a matter of public policy.

When the limited number of parties to the agreement are compared to the immense number of parties that have interests in the planning area and how Alternative A questions were resolved in the updated version provided even more foundational problems are immediate. The application of any portion of the Settlement Agreement in a manner that allows Alternative A to evolve or change from the decisions in place prior to the 2008 RMP/TMP would be in direct violation of public policy that NEPA has sought to advance. These interests that are not signors to the Settlement Agreement would be prejudiced by their inability to raise concerns about the update process. This type of decision making would violate the very tenants of NEPA, the Administrative Procedures Act and dozens of other statutes.

Courts have consistently concluded that any agreement between parties that collude to violate the law is immediately null and void as a matter of public policy.  Courts have recognized this basic principle as follows:

“While there is no unanimity of opinion as to the reason for this rule, the authorities are in accord with its results. The reasons given by Courts differ depending upon the particular view taken as to whether an illegal contract is void or simply unenforceable. If an illegal contract is regarded as being void, then there is nothing to enforce after the invalidating statute is repealed…… Other authorities hold that an illegal contract is not void  but is imply unenforceable. Starting with this proposition that “no polluted hand shall touch the pure fountains of justice” (Collins v Blantern (1767) 95 Eng. Rep 850, 852) they reason that the repeal of the statute does not cleanse the stain from those hands”[11]

Any interpretation of the Settlement Agreement in a manner that would result in it being struck down as contrary to public policy would be vigorously opposed to by the Organizations as we are also signors of this Agreement. With the challenges facing this planning effort, any allegation of polluted hands touching the pure fountains of justice in the Settlement process must be avoided at all costs.

6(b)(1). The Proposal violates the Settlement Agreement signed by the Parties.

Alternative A of the Proposal also presents an interpretation of many legal issues and claims that was found deficient for other reasons and some of these were specifically recognized in the District Corut decision in this issue that drove the Settlement. While we would assert that minimization was completed and poorly documented this does not alter the fact that current management cannot be based on a TMP that was found legally insufficient by the District Court of Utah.  This is problematic from a legal perspective given the previous findings of the District Court but violates the requirements of the Settlement Agreement.

The failure to address the relationship of existing RMP decisions and how they relate to management decisions in the Settlement TMP process on issues such as minimization is explicitly and directly recognized in the 2017 Settlement Agreement as follows:

“WHEREAS, on November 4, 2013, the district court issued a merits ruling that was partially adverse to Federal Defendants. The court found that “[i]n designating 4,277 miles of routes in this case, BLM did not discuss the minimization criteria in the ROD, RMP, or any other travel planning documents,” and “therefore, there [was] no evidence in the ROD that the minimization criteria was applied or applied correctly.”[12]

With regard to minimization criteria and how compliance was thought to be achieved, NEPA requires this process to be transparent. Rather than a transparent process with public engagement, the Proposal does not address minimization in its analysis at all.  This silence is deeply problematic.  The comparison of the silence of the Proposal on minimization could not be more complete when compared to other efforts we are aware such as the PSI. In the PSI EIS minimization analysis was addressed with dozens of pages of specific discussions and then addressing this issue in the detailed discussion of alternatives. We would like to be able to resolve management of these areas at some point in the future and avoiding analysis of issues that have already been insufficiently analyzed is not a step towards final resolution of management of these areas. Again, issues like these make us request a single EIS for the area rather than the series of uncoordinated EAs we have been provided with.

While the Court specifically struck down the TMP for its failure to comply with the minimization criteria based on claims of SUWA, the Settlement Agreement protects all parties existing claims and concerns around the sufficiency of management documents for the various areas involved in the litigation as follows:

“3. This Settlement Agreement is for the purpose of settling the above-captioned litigation. Nothing in this Settlement Agreement shall be deemed as precedent in this or any other proceeding or shall constitute an admission or concession by any party as to the validity of any fact or legal position concerning the claims or defenses in this or any other proceeding. Nothing in this Settlement Agreement shall be construed to be an admission or shall constitute evidence that the commitments made by BLM in this Settlement Agreement are necessary to satisfy any requirement under any applicable law.”[13]

While our concerns are outside the minimization criteria, there can be no legally sufficient argument that the current treatment of numerous decisions, such as OH-7/ open area/existing routes designations and WSA management and other factors, exhibits the same failure to support TMP decisions with RMP decisions and standards as was previously identified as a failure by the Courts.

The Settlement Agreement provided the BLM time to resolve failures in the 2008 RMP/TMP and this requirement was confirmed by the 10^th Circuit. Rather than resolving these challenges the BLM has simply chosen to try and avoid analysis of these failures, which is immensely problematic.  Given this previous Court findings on the legal insufficiency in decision making around the 2008 RMP, we must question why the same failures are thought to be sufficient in this effort. Not only is this process a violation of the Settlement it is also a violation of various NEPA regulations as well. The only way for the Proposal to preserve all claims and avoid concessions of claims is to start the planning effort with the 2003 TMP that was in place before the 2008 TMP was finalized.

6(b)(2) The Settlement Agreement specifically protects the ability to open or add new routes in the Settlement TMP.

With the intervening Congressional actions of the Dingell act in the planning area, the Organizations must question basic assumptions for multiple use recreation in the planning area.   These changes alter the management of more than 600,000 acres in a planning area of 1.1 million acres and we must ask how public access has been found to support demand after these Congressional Actions. The failure of the Proposal to meaningfully address the full scope of alternatives allowed in the Settlement Agreement for resolving management uncertainty and using a full range of options for management of the area directly conflicts with the Settlement Agreement previously reached in these matters.  The Settlement Agreement identifies the scope of BLM authority in planning as follows:

“However, subject to valid existing rights, nothing herein restricts BLM’s discretion to revise or amend the 2008 TMPs, to impose limitations or closures, as provided by 43 C.F.R. §§ 8341.2 and 8364.1, to open, close, modify, or add new routes, or otherwise consider or institute temporary management prescriptions in accordance with applicable law and regulations.”[14]

None of the Alternatives provide for the creation of a single mile of routes in the planning area. Rather than complying with the specific terms of the Settlement agreement and various NEPA regulations, the Proposal appears to embrace the same management failures on many issues despite claims around these decisions being specifically protected in the Settlement Agreement. Could trails be built in areas released from areas previously classified as WSA?  Yes.  Were some WSA areas have terrible management histories and have tried to be removed as ISA before WSA designations were even thought about? Yes. Are closures in these areas to routes that the BLM recognized existence and high levels of usage on for more than 50 years?  Yes.  Could recognition of the previous failures and confusion of the open/existing/designated routes issue have been resolved by merely carrying existing routes forward?  Yes.  For reasons that are never discussed these types of questions are resolved with the closure of all routes in these areas under alleged current management. This is simply unacceptable.

6(c) The Proposal fails to address planning deficiencies recognized in an existing Order from the 10th Circuit Court in underlying litigation.

The Proposal’s failure to resolve issues underlying the RMP and TMP creation is only made more egregious given the State of Utah appeal in underlying litigation that appears to be partially driving this planning effort. The State of Utah’s appeal to the 10^th Circuit in 2018 raised concerns around the ability of BLM to resolve all various concerns under the terms and conditions in the Settlement Agreement. The State was concerned that the Settlement Agreement addressed several RMPs, spanned large portions of the state and addressed many different issues. Given the current situation in planning, this appeal appears to have raised valid concerns that simply could not be addressed by the Court.

While this Appeal was dismissed as not ripe for adjudication, it must be recognized that the 10^th Circuit recognized the concerns around the State of Utah appeal and ruled that BLM has the authority to resolve the various issues involved matters within the scope of the Settlement Agreement. A copy of this decision is attached as Exhibit “2” to these comments.  Many of the underlying matters specifically raised concerns around issues such as NEPA sufficiency and analysis failures that are again coming to the front in this Proposal The failure of the BLM to resolve problems with problems in these efforts already recognized by the 10^th Circuit should be concerning.  Rather than resolving these concerns in the Proposal, BLM has simply chosen to ignore them.

6(d). The Settlement Agreement specifically addresses intervening circumstances and how they should be resolved which has been addressed in the EA.

The ambiguity of the analysis on many issues is not required under the Settlement Agreement.  The ability to resolve the challenges resulting from the 2017 Settlement Agreement and the 2019 passage of the Dingell Act and its associated impacts on the requirements for planning area is addressed in the Settlement Agreement.  The Settlement Agreement specifically outlines how issues that would include unavoidable legal impediments or prohibitions must be addressed under the Agreement as follows:

“39. Deadline limitations. BLM is not obligated to meet any of the deadlines identified herein if it is prevented from doing so due to an event beyond the reasonable control of BLM that prevents BLM from fulfilling any obligation required by this Settlement Agreement despite the exercise of due diligence. Such events may include, but are not limited to……. as well as all unavoidable legal impediments or prohibitions….. In the case of such an event, BLM shall be relieved of those specific obligations directly precluded by the event, as well as those other obligations whose performance is precluded by the inability to perform, or delay in performing, the directly precluded obligations, and only for the duration of such event, as provided herein. Where BLM cannot comply with any deadlines identified herein due to such an event, it shall provide notice to the parties and, should the deadlines be one of those over which the district court has continuing jurisdiction, shall also notify the district court. Such notice shall include a new estimated date by which BLM will comply with the deadline and a description, to the extent then known by BLM, of the steps taken or proposed to be taken to prevent or minimize the event’s interference with BLM’s performance of any affected obligations under this Settlement Agreement. BLM will provide status reports to the parties at regular intervals not to exceed 90-days notifying the parties and the district court, if applicable, of BLM’s efforts to address and  resolve the event. If any party disputes BLM’s claim that it cannot comply with any of the deadlines identified herein due to an event, or the adequacy of BLM’s efforts to address and resolve such event, such party shall proceed in the manner specified in paragraph 40.”[15]

The Settlement Agreement also exclusively provides the ability to request this resolution to the BLM. The Organizations must ask why the BLM has not sought to revise and clarify the Settlement Agreement to address the Dingell Act requirements as these are clearly the type of challenges that would normally be classified as unavoidable legal prohibitions or impediments. Moving areas from open OHV designations with goals of development to Congressionally designated Wilderness would generally be sufficient to support triggering these provisions.   This type of alignment would also allow planners to comply with the mandates of NEPA.

Given the specific nature of both the Dingell Act and the Settlement, the Organizations would vigorously assert that how and why this decision was made must be included in a detailed statement of high-quality information on why a planning decision was made. This is a basic NEPA requirement and clearly would satisfy as an alternative for analysis. This resolution would avoid many of the timing issues that now are deeply problematic with the Proposal as there is a TMP occurring at the same time as an RMP development for the recreation area.  This clearly provides immense challenges and the possibly of decisions that directly contradict each other due to the separate planning efforts. Not only would this be the recommended course of action under the settlement, but the resulting clarity would also be hugely helpful in developing a plan for the area that was consistent, understandable to the public, allow the public to meaningfully engage with the process and be a decision that could be implemented rather than ties up in court for decades.

6(e) Amendments to the Settlement Agreement would resolve conflicts with added clarity.

The challenges to public engagement around this planning process and associated processes are profound as no reconciliation of the mandated changes from Congressional action and the existing 2008 Price FO RMP are provided.  This preliminary step is critical given the profound impact that these Congressional Actions had on the RMP as more than 410,000 acres have been designated as Wilderness, another 217,000 acres were designated as the Swell Recreation area.  Understanding the current baseline of management in these areas will be critical to minimization efforts and also to the development of the RMP for the Swell Recreation Area as the Swell Recreation Area is proposed to be limited to existing routes identified after planning.

Generally, the balancing of usages within a Field Office and related traits such as solitude and motorized usage areas are issues for the Resource Management Plan(“RMP”), not the travel planning process. Travel plans are used as a tool to apply existing RMP goals and objectives and are not the basis for significant landscape level changes that would conflict with the RMP.  BLM planning regulations specifically state this relationship as follows:

“The BLM must incorporate TTM into the development of all new and revised RMPs to address access needs with regard to resource management and resource use goals and objectives. Generally, an RMP only includes land use planning decisions for TTM; the development of implementation-level TTM decisions concurrently with the development of the RMP is not a viable planning approach (see section 3.6 for details on exceptions).”^[16]

The Price Field Office RMP was finalized in 2008 and is highly relevant to the discussion as the RMP was outside the scope of the settlement agreement in the litigation.  This is unlike many of the other Field Offices where RMP from the 1980s are still relied on for management and at best questionably relevant simply due to the passage of time.  The Organizations vigorously assert that the motorized opportunities on the FO may appear out of balance with other resources such as 410k of new Wilderness and more than 210 acres of Swell Recreation Area that is largely closed to OHV access.

Decisions such as allowing motorized usages in WSA/WCA/ISA areas released for multiple uses are decisions for the resource management plan, not the travel plan process.  The RMP goes into reasonable detail regarding why decisions were made to allow motorized usage in WSA and WCA areas, and the Organizations submit this reasoning still remains valid at this time. Many areas have historically had higher levels of usage that has eroded over time.  These could be areas where access could be expanded to address the lost opportunities in other areas. We would ask for the opportunity to address these possible uses of these areas and that has not been provided.

7(a) The 2008 current management vs 2024 current management maps are profoundly different and these differences are critical to the planning process.

An accurate understanding of current management of this area is critical to addressing any TMP and providing detailed discussions of how minimization is achieved. This accurate baseline is only more critical given the Congressional designations that have occurred in this area since 2008.   The value of this baseline is further increased as the Settlement Agreement explicitly provides for the baseline for the development of the 2024 TMP has to be the 2008 baseline.  There is no 2008 TMP to be relied on given the foundational flaws in the TMP effort identified by the Courts and in the Settlement.

While establishing the baseline map for the area should be a point of conflict, the map provided as Alternative A of the Proposal does not align with the 2008 Baseline map. Even the 2008 baseline map is problematic as there are numerous open areas that have not been closed but are not reflected on this map.  The 2008 baseline map should largely reflect the 2003 TMP decision which is reflected as follows:

When the 2008 TMP baseline map is compared to the Proposed Settlement TMP baseline map the difference between these maps could not be more profound. The 2024 current management map provides as follows:

The factual impossibilities and challenges presented by the map are immediate and will significantly impact any expansion of opportunities and also calculations of the minimization that occurs.  Most of the Wilderness areas on this map did not exist in 2008 so we must ask why they would be on a map of current management in 2008.  After reviewing this map, the public could assert that no routes were closed in the designation of these Wilderness areas.  Again, the Settlement TMP baseline is simply factually and legally incorrect.

While we do not contest that the Dingell Act Wilderness areas closed routes subsequent to the 2008 TMP, accurate identification of the routes closed will be critical to understanding and satisfying user needs. Our proposed resolution of this situation presented from the subsequent Congressional designations would be a two-step process.  Step One.  Start with the 2008 baseline map and do not reflect any Wilderness areas as this is current management prior to the 2008 TMP. We would support the inclusion of these new Congressionally designated Wilderness areas under every Alternative as clearly we are not asking to ride in a Wilderness area. Step Two.  In conjunction with these boundaries being reflected in every Alternative, closed routes from these Congressional designations must also be reflected.  Recreational opportunities allowed under the 2008 RMP and those now available must also be reflected in another series of maps. The need to accurately understand the impacts of Congressional actions that protected access and also closed access will be critical in developing an RMP that can be legally defended. With failures in the Proposal such as this we are off to a weak start. 

The benefits of the above process will extend beyond recreational opportunities as the minimization criteria require all changes in management be addressed, not just those that are undertaken by the federal land managers.  Asserting that Congressional changes in land management must be excluded from the minimization analysis would be legally problematic at best. Not only does this improve recreational opportunities for all this also improves the BLM chances of success in defending this decision from the inevitable legal challenges that will be posed to any decision. This type of information is critical to the effective engagement of the public in supplemental comment periods that must be provided after accurate and complete information is provided.

7(b) The Organizations preserve our concerns around the 2008 RMP/TMP planning process as these concerns have directly impacted the baseline map. 

As noted in these comments previously, the Organizations have profound concerns around the sufficiency of landscape level management decisions made in the RMP/TMP process to date. [17] Previously commented on and basis of years of discussion prior to the current planning effort in areas such as OHV-7 existing/designated/ WSA issues like Link Flats. While we are discussing these areas in some detail in these comments, this input should not be assumed to be the entirety of our concerns in the area.  Our ability to meaningfully comment on our concerns is immensely impacted by the fact that the Proposal does not provide basic information on areas that planners have already admitted have failures in planning.  This would be critical in assisting us in the development of concerns for these areas or the range of alternatives for the management of these areas. Concerns over the current management situation not being reflected in Alternative A are compounded when the scope of mapping errors is addressed in the RMP and related documents.  One situation was outlined in the response to public comment as follows:

“Response: While the Chimney Rock/Summerville/Humbug Trail system was included in Alternative map 2-54 of the DEIS it was inadvertently left out of the preferred alternative map 2-56. The Proposed RMP/Final EIS has been changed to reflect this and now includes the Chimney Rock/Summerville/Humbug Trail system in all appropriate alternatives.”[18]

In order to meaningfully comment on this issue, basic information must be provided, such as the exact location of these trail networks and if Alternative A reflects resolution of these concerns.  We are concerned that Alternative A may not reflect this type of management resolution but rather simply assumes that these commitments were honored and are now resolved. We would oppose that assumption and assert that given the management history these commitments were never analyzed and are not reflected in Alternative A of the Proposal.

While the above response to comments in the RMP/TMP Rod outline specific trail networks this document A second mapping failure of a far more generalized nature is also quickly identified as follows in the FEIS:

Response: The ROS inventory was updated and corrected as a result of public comment and meetings with cooperators (Carbon and Emery Counties). There were errors in the mapping and these have been remedied. The text of the document has also been revised to remove the term, “High Use Zone,” and replace it with the more correct, “Recreation Management Zone.” SRMA goals are defined in the proposed RMP and in fact, activity plans exist for all SRMAs with the exception of the San Rafael[19]

While the FEIS asserts these problems would be resolved in the final RMP, we have to question if that was actually done.  We have concerns given the almost immediate legal challenges that resulted.  If these decisions were made, what was that process used to the correct maps in Alternative A of this effort. These are commitments made in the RMP/TMP process that must be addressed to provide any level of NEPA sufficiency.

7(c) How was the opportunity for future planning in the OHV-7 areas promised in the RMP lost?

The systemic failures of the NEPA analysis process are again highlighted with the treatment of the areas previously identified for future management efforts.  While the 2008 RMP specifically and directly provided for these opportunities, even under Alternative A of the Proposal, those opportunities have been lost. They are then also lost in every Alternative provided in the Proposal. This creates immediate conflict with the Proposal assertions that they are applying the 2008 RMP directly.  This is simply impossible. This management change for these areas also is created in violation of NEPA requirements, as NEPA requires that if planning opportunities such as this are removed planner must describe how these decisions were made.  These is simply no discussion of how this change in current management was determined to be necessary or how the underlying problems for these areas was addressed.

As noted previously conformance with the RMP is problematic for areas released from WSA but this is not the only failure of the Proposal to achieve consistency with management decisions. The complete inability of the Proposal to align with existing RMP requirements is again highlighted with the OHV-7 issue.  This issue addresses open areas that were incorrectly reflected in the 2008 RMP. While the RMP/TMP asserts a desire to move to an entirely designated route model but with assertions such as those made in the OHV-7 provisions we again must question how that was achieved in the planning area.  Again, the ability to comply with NEPA requirements has been made impossible as the Office admits that the NEPA planning for these areas has never occurred and the mapping that was provided to the public was not accurate and did not reflect the management decisions that were made. It is relevant to review the Proposal assertion that it complies with the RMP as follows:

“1.5 CONFORMANCE WITH BLM LAND USE PLANS
The action alternatives described in this document are in conformance with applicable management direction, including the 2008 Price RMP and 2008 Richfield RMP, which provide overarching management decisions, goals, and guidance for this travel planning effort. RMP decisions and goals to which this project conforms are listed in Table 1-2.”[20]

The immediate conflict between the various assertions that Alternative A is made of conformity with the 2008 RMP and assertions that the failure of maps to reflect the entire management decision should result in trail loss.  A map is only a part of the management decision making process and does not reflect the whole NEPA process.  NEPA requirements extend FAR beyond merely making a map of areas. While that may be the absolute minimum required for a TMP, drawing a map in isolation is insufficient to satisfy NEPA.   While the Proposal claims to be in conformity with the 2008 RMP, the Proposal also asserts there are several areas that were not identified for future management decisions subsequent to the RMP, which is outlined in table 1-2 of the Proposal as follows:[21]

Any assertion of conformity with the RMP must start with resolving how this question was answered in the planning process for these areas. Where are these areas that were not displayed due to an oversight in management? why would we believe simply considering routes in these areas is sufficient to resolve the issue.  Are these areas that were managed under the existing routes standards? How was the decision made to move these areas from an existing route to closed standard? We simply do not know and accept the naked assertion of compliance with the RMP.  This type of assumptions and assertions in any NEPA document is simply a violation of any NEPA requirements.

The immediate contraction of the OHV -7 areas and other assertions could not be more complete, as again the Proposal fails to resolve the OHV-7 area issues as it merely asserts:

“The TMP does not alter the area designations made in the 2008 Price RMP. The entirety of the TMA acreage remains limited to designated routes.” [22]

While the BLM may have wanted to move the entire area to designated/existing routes for management, we must question how that could happen since the BLM openly admits that supporting documentation for these areas was never provided.  That by definition is insufficient to comply with NEPA. The problematic nature of this assertion is expanded in other provisions of the Proposal where the FEIS repeatedly asserted that open areas are possible in the FO as follows:

“During activity level planning or as resource conditions warrant, route designations may be changed. Open areas will be considered on a case-by-case basis under the Recreation and Public Purposes Act (R&PP) for previously disturbed areas near communities.  Several trail systems are being established for OHV use.”[23]

The application of the most restrictive interpretation of the 2008 RMP ambiguities such as these continues in Alternative A of the Proposal as there were routes and areas that were merely identified for future planning and management but permitted to continue under an existing route standard for TMP purposes. This is a completely valid step in the TMP process as we are aware that FO consistently apply the existing routes standard as a step towards designated routes.  Rather than address this ambiguity in the management process around Alternative A the Proposal simply assumes all these existing routes were closed as follows:

“Since 2008, incomplete implementation of the 2008 route designations and confusing RMP decisions (2008 Price RMP’s Map R-18 includes “other” routes which are undesignated3 (not specified as OHV-Open or OHV-Limited or OHV-Closed) and 2008 Price RMP’s OHV-7 defers route designations within approximately 5% of the TMA to future activity-level planning) have resulted in a challenging management situation involving user conflicts, resource impacts, user confusion, and public safety challenges. To address these issues, the BLM began inventorying routes in 2011.”[24]

Our opposition to this assumption could not be more complete as the process outlined for these areas specifically applies the BLM travel planning regulations for situations such as these. The erroneous nature of these assumptions in Alternative A is immediate and complete as the incremental management decision making for areas such as those identified above is the recommended course of management for areas in the BLM TMP regulations.  Those regulations specifically outline this process as follows:

B. Determine Concurrent or Deferred TTM Planning

The planning unit TTM action plan and planning schedule should indicate which areas, if any, of the LUP planning unit are to have implementation level TTM planning completed concurrently with the land use planning process and which areas, if any, are to be deferred until after the LUP process has been completed. Possible reasons for not completing the final network might be size or complexity of the area, controversy, incomplete data, or other constraints.

If sufficient travel and transportation information is available for a smaller area or sub-unit within the planning area, such as a TMA, consider completing the TTM planning as part of the RMP and deferring the remainder of the RMP planning area to an implementation level travel management plan(s).

The TTM planning can be prioritized to focus on areas that are most heavily used, or areas that have existing social conflicts, resource concerns, or a defined need for route definition or development for administrative, public access or other needs first. These areas may require consideration of new route development and/or existing route relocation in addition to route decommissioning.

In some cases, the need for TTM is in the development of a functional and sustainable transportation system that meets current and future needs. In other cases, TTM is necessary to restore areas with a proliferation of user-created routes. These areas may place greater reliance on evaluating existing routes and decommissioning undesirable routes in the TTM process. [25]

The BLM TMP regulations further mandate the management process regarding how the changes in management from open areas to existing routes to designated routes is developed, applied and the benefits and challenges of this management process as follows:

“Area designations limiting motorized use to existing roads, primitive roads and trails can only be made on an interim basis as a preliminary step leading to the selection of a designated network of roads, primitive roads and trails. This interim designation may only be used when the development of a designated road, primitive road and trail network for all, or a sub-unit, of the planning area is deferred until after the RMP is completed. The RMP must clearly identify the process leading from the interim area designation of “limited to existing roads, primitive roads and trails” to the development of a designated network of roads, primitive roads and trails. The RMP should state that the area designation will change from “limited to existing roads, primitive roads, and trails” to “limited to designated roads, primitive roads, and trails” upon the completion of a travel management plan. Even though ‘use on existing roads’ appears within the definition of ‘limited area’ in 43 CFR 8340.0-5(g), it has been determined that, due to the specific mention of ‘areas and trails’ in 43 CFR 8342.1(a)-(d), individual routes must be evaluated to determine whether they can be managed in accordance with the designation criteria; regardless of whether use is to be limited to ‘existing’ routes. This leaves little practical distinction in the evaluation process between ‘designated’ and ‘existing’ routes. A ‘designated’ route system provides more long-term management flexibility in terms of being able to add, delete or relocate routes in the transportation system.”[26]

The BLM travel management regulations continue to identify the proper application of the existing routes standard in the management system for chapters of the regulations.  These are entirely too large to address in these comments, and as a result the Organizations will simply refer to this issue as the existing trails designation management model. The failure to identify a single point in time for management only compounds this failure as the most restrictive interpretation of WSA’s currently is applied but the most restrictive interpretation of the 2008 RMP is also applied in the development of Alt A.

While the Organizations are aware that there have been numerous intervening actions since the 2008 RMP, this does not alter the fact that these routes under the existing routes standard are properly designated for future management.  The fact that the BLM never undertook this management does not alter the legal and valid management designation that was placed on these routes in the TMP.  The settlement agreement reached does not address the RMP, only the TMP.  Where are these routes in Alternative A and how was the decision made that all these routes were closed rather than designated for future management. Issues such as this are why a range of Alternatives is critically necessary for the NEPA process and is direct evidence of the complete failure of the Proposal to comply with NEPA.

7(d). Other management ambiguities such as routes in WSA are resolved with closures without analysis or recognizing previous NEPA failures.

The future management of WSA areas released by the Dingell Act is unfortunately not the only example of issues the Proposal simply avoids discussion of and seeks to apply the most restrictive alternative for management of these areas under the guise of current management. Rather than utilizing the opportunity to address deficiencies in the existing analysis provided by the Settlement Agreement, BLM has chosen to ignore these issues entirely.  Bad NEPA analysis cannot fix previous bad NEPA analysis of issues, it only compounds the problems created by previous NEPA insufficiency. The conflict of these positions is immediate as The most restrictive interpretation of the management situation as alternative A continues from page 1 of the EA which inaccurately summarizes the Alternative A position as follows:

“Throughout this EA those routes that were undesignated in the 2008 Price RMP will be included with the OHV- Closed routes in Alternative A.”[27]

This clearly directly conflicts with the information provided as Alternative A reflects not only routes closed in the 2008 RMP but also removes any routes closed in subsequent Congressional action from any analysis.  There were routes in the 410,000 acres of Wilderness that were lost and those are entirely removed from the Alternative A map. Clearly these are lost opportunities that should be addressed in the TMP but the public is not provided any information regarding how this decision was made, where these routes are located or how many miles of routes are currently managed under the existing route standard.

While the 2008 RMP/TMP have been permitted to be applied on the ground under the settlement agreement, the Settlement agreement also preserved all challenges to the RMP/TMP previously made. Issues such as this were challenged by the motorized community and BLM addressed these concerns in the Settlement Agreement by asserting that NEPA compliance would be provided.  NEPA has not been provided despite this recognition in the Settlement Agreement and creation of another TMP for the area.

8(a).  Planners must provide an accurate and consistent view of current management and simply have not.

The Proposal fails to meaningfully address the impacts of management changes when compared to the management baseline in a rather muddled and confusing partial summary of the current situation. Rather than choosing a single year to base management baselines on the Proposal often analysis chooses different points in time to address what is current management.  Different timeframes are used for different issues and often only partially reflected in the current management. This failure to identify a single point in time is immensely problematic as information is simply not consistently conveyed and this prohibits meaningful public engagement. The problems that result in any planning analysis from the failure to identify a single point for management are immense and are compounded by the fact that in certain portions of the Proposal, current management is attempted to be reflected but the concurrent development of an entirely new RMP for most of the planning are under the Dingell Act is never mentioned. At no point is there any attempt to outline the changes from the RMP that resulted from the designation of large Wilderness areas in portions of the planning area that were managed for multiple use expansion previously.

As previously noted, there are extensive provisions of the Settlement Agreement that could have been relied on for the development of a cleaner and neater starting point for public engagement on the planning area. However, the variable starting point of analysis used throughout the Proposal extends far beyond the scope of the Settlement and alignment with the Dingell Act.  As an example, several times the Proposal states there are no Wilderness Study Areas in the TMA as follows:

“There are no Wilderness Study Areas located within the TMA. The nearest Wilderness Study Areas to the TMA are as follows:”[28]

While this is technically correct currently, it was not accurate when the 2008 RMP/TMP was finalized.  If we are applying the RMP, there were five WSAs in the planning area, covering more than 200,000 acres which is reflected in the WSA Map provided with the plan as follows:

The 2008 RMP specifically provided motorized access to several of these WSA that were subsequently designated as Wilderness by Congress in 2019. This designation resulted in more than 410,000 acres of Wilderness in the planning area.  The failure to accurately address the baseline is clear when more than 200,00 acres of Wilderness was created outside existing WSA.  Many of these areas had OHV opportunities on them that were immediately lost. How was this impact addressed? Are areas outside the recreation area being developed to provide opportunities?

Even after the Dingell Act was passed, issues with WSA remained and are partially addressed in the Proposal. The Proposal cannot apply the 2008 RMP to WSA areas that were released by Congress for multiple use.  These types of decisions around uses in these areas should be Congress release these areas at some point in the future was specifically avoided in the RMP. Significant areas of planning area are in this category as reflected in the scoping maps for the RMP development for Swell Recreation Act.[29]

By operation of law, these areas can no longer be managed for their Wilderness characteristics as Congress specifically released these areas back for multiple uses. This is an issue that again appears to have been left to future management in the RMP, which identifies this as follows:

“WSA-7
Should any WSA, in whole or in part, be released from wilderness consideration, such released lands will be managed in accordance with the goals, objectives, and management prescriptions established in this RMP, unless otherwise specified by Congress in its releasing legislation. The BLM will examine proposals in the released areas on a case-by-case basis but will defer all actions that are inconsistent with RMP goals, objectives, and prescriptions until it completes a land use plan amendment.”[30]

Per the Dingell Act areas previously managed under the §603 inventory for WSA standards are specifically released for non-wilderness uses as follows:

“SEC. 1234. RELEASE.
(a) FINDING.—Congress finds that, for the purposes of section 603(c) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1782(c)), the approximately 17,420 acres of public land administered by the Bureau of Land Management in the County that has not been designated as wilderness by section 1231(a)has been adequately studied for wilderness designation.
(b) RELEASE.—The public land described in subsection (a)— (1) is no longer subject to section 603(c) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1782(c));
and
(2) shall be managed in accordance with—
(A) applicable law; and
(B) any applicable land management plan adopted under section 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712).”[31]

The release of these WSA areas is significant given the no buffer requirements of these released areas are specifically identified in the Dingell Act as follows:

“(e) ADJACENT MANAGEMENT.—
(1) IN GENERAL.—Congress does not intend for the designation of the wilderness areas to create protective perimeters or buffer zones around the wilderness areas.
(2) NONWILDERNESS ACTIVITIES.—The fact that nonwilderness activities or uses can be seen or heard from areas within a wilderness area shall not preclude the conduct of those activities or uses outside the boundary of the wilderness area.”[32]

This provision of the Dingell Act does not appear to have been addressed in the Proposal, despite it being hugely relevant to the future management of the WSA areas that were released. While the Dingell Act is addressed, its application is highly arbitrary in the Proposal. Clearly resolving the future management of the released WSA areas would require an RMP amendment for areas outside the Recreation Area.  While the Proposal provides highly limited summary of the WSA release issue, the Proposal provides no analysis of other changes to what is asserted to be RMP management from the Dingell Act, such as a summary of how many acres of multiple use were lost in the Dingell Act.  How many of these WSA areas were never suitable for designation as Wilderness after the preliminary inventory of these areas in the 1970s and 1980s. We don’t know but clearly a range of Alternatives for these areas should be provided.  This has not been provided.

We are not aware of any scoping for such an RMP Amendment to have even begun for these areas outside the Recreation Area. While the RMP for the recreation area is under development, this effort is only in scoping and has not even provided a range of alternatives for possible discussion. This type of an issue highlights why an RMP must be developed prior to the TMP being attempted.  This issue simply is not discussed and clearly the most restrictive interpretation of these developments has been provided to the public under the guise of current management.

8(b) RMP specifically allowed motorized usage in WSA.

The Organizations concerns about the accuracy of Alternative A are again supported by the decision in the Objection resolution decision issued on the RMP/TMP. This clearly is stated in the decision as follows:

“Where routes would remain available for motorized use within WSAs, continue such use on a conditional basis. Use of the existing authorized routes in the WSA (“ways” when located within WSAs) could continue as long as the use of these routes does not impair wilderness suitability, as provided by the Interim Management Policy (IMP) (BLM 1995). If the Congress designates the area as wilderness, the routes may be closed, unless otherwise specified by Congress. In the interim, if use and/or non-compliance are found through monitoring efforts to impair the area‘s suitability for wilderness designation, the BLM would take further action to limit use of the routes or close them. The continued use of these routes, therefore, is based on user compliance and non-impairment of wilderness values.”[33]

Again, we must note that the RMP/TMP is problematic for many reasons. These reasons were specifically identified in repeated decisions ranging from the objection decision to decisions of the 10^th Circuit. Despite the decades of recognition many of these problems remain unresolved.

8(c) How does the Proposal implement the goals and objectives of San Rafeal Swell SRMA in the RMP.

The Proposal further resolves other open management issues by simply not addressing them on larger recreation issues in the areas that will be critical to the development of the TMP.  Our request for analysis of how existing expansion areas provided for the RMP would be balanced or replaced after the Dingell Act designations.  The  2008 RMP identifies large tracts of lands that can no longer be managed to achieve their recreational goals and objectives.

Under the 2008 RMP the Swell SRMA was entirely overlapping the planning area, which is reflected in the following map of the SRMA.  The SRMA was then subdivided into smaller Recreation Management Zones with specific management goals and objectives.  Many of the specific goals and objectives were yet to be defined and implementation was to be addressed at some point in the future.  This SRMA and RMZ areas were outlined in the following map:

Under the 2008 RMP, the Swell SRMA designations outlined the following goals and objectives:

A San Rafael SRMA activity plan would be completed within 5 years. The San Rafael SRMA activity plan would include special rules for—

• • Fire—Limited fuel-wood gathering would be allowed in specified areas, and ground fires would be allowed.
  • Vehicle camping—In the high-use areas, vehicle camping would be allowed only in developed and designated sites. Vehicle camping outside the high-use areas would be allowed in developed, previously impacted, or resistant/resilient sites, except where critical resources exist. Backcountry camping would be allowed throughout the SRMA.[34]

Given this commitment to future planning that has not occurred, compliance with the RMP cannot be achieved with merely a TMP as these management efforts for site specific issues have not occurred.  The Organizations simply cannot comment on possible resolution of these issues as some of these challenges might be able to be resolved in a Wilderness areas, some might be able to be resolved in the Swell Recreation Area created by Congress and others may have to be satisfied with the remnants of the Price FO left outside the Swell Recreation area.

The RMP further identified high use zones in the San Rafael Swell SRMA which were provided to created further clarity around usage of these areas. 2008 RMP outlines goals for the recreation zone areas as follows:

Recreation management would focus on sustaining natural resources while meeting social and economic needs. Three high-use recreation areas in the San Rafael Swell SRMA (Map 2-25) would be established to facilitate the provision of recreation amenities. The following areas would be BLM operated and maintained high use areas:
Temple Mountain/Little Wild Horse/Behind the Reef
– Buckhorn/The Wedge/ Mexican Mountain
– Head of Sinbad/Swasey Cabin/Sid’s Mountain and the trail system [35]

These High Use/recreation areas were designated with the following boundaries in the RMP:

The RMP specifically identifies the goals and objectives of these RMZ areas as follows:

RMZs in the San Rafael Swell SRMA:

REC-49
Recreation management will focus on sustaining natural resources while meeting social and economic needs. RMZs (Map R-15) will be established to facilitate the provision of recreation amenities. The following areas will be BLM-operated and -maintained RMZs:

– Temple Mountain, Little Wild Horse, Behind the Reef

– Buckhorn, The Wedge, Mexican Mountain

– Head of Sinbad, Swaseys Cabin, Sids Mountain, and the trail system.

REC-50
At sites accessed by motor vehicles, visitors will be required to provide their own fuel-wood (Map R-15).

REC-51
Gathering wood from standing trees, live or dead, will be prohibited.

REC-52
At sites accessed by motor vehicles, campers without a BLM-provided fire grill will be required to use a fire pan to contain the fires, ash, and charcoal.

REC-53
Vehicle camping will be allowed only in developed and designated sites.

REC-54
Portable toilets will be required at designated campsites that do not have toilet facilities.

REC-55
The BLM will retain overall management of RMZs to provide maximum development of recreation opportunities with minimal commercial concessionaire involvement. [36]

Again, the Proposal fails to address any of these issues in a substantive manner and avoids any challenges that might need future planning such “maximum recreational opportunities”. While some of these goals are not impacted by management changes, such as mandating portable toilets many of these, such as vehicle camping would be profoundly impacted by these management changes.  Vehicle camping is not even addressed in the Proposal.  Could campers park within 100ft of the road to vehicle camp?  We simply don’t know as this is not addressed.   While the RMP highlights the need for economic sustainability with the development of these areas, the Proposal simply brushes this concern off as follows:

“The analysis area is Carbon and Emery counties because those are the counties most affected by recreation in the TMA. The temporal scope of analysis is 20 years (see Section 3.1.1). Any impacts to the socioeconomics of the planning area (Carbon and Emery counties) would come from changes in recreation visitation to the TMA and resultant changes in expenditures by visitors to the TMA. As discussed in the recreation analysis in Section 3.3.4, PFO expects little if any change in recreation visitation from the various alternatives. Nonetheless, it is useful to describe the current contribution of visitation to the TMA to the economy of the planning area. Additionally, we can compare that impact to the overall impact of both recreation spending on BLM lands in the PFO and the overall impact of recreation and tourism to these two counties.[37]

The Organizations would assert that the Proposal entirely avoids application of the RMP requirements. Conflict with RMP and Proposal are foundationally evidenced when the RMP requirements and the Proposal analysis are compared on the SRMA and RMZ requirements. RMP speaks to meeting social and economic needs or what would now be identified as sustainability. This would entail sustainability over some period of time. Given the planning document, we would assume this sustainability would be the life of the plan. While economic sustainability of the region is highlighted as a goal of the SRMA and RMZ this concern is simply avoided.  The Proposal provides information on the anticipated economic analysis identified above and then follows with a summary of basic data provided in the IMPLAN process. Data is not analysis.

The Organizations would object to this rather dismissive analysis of economics around possible impacts to recreation from the standards in the Proposal, as there are clear challenges that the Proposals faces on this issue.  Existing BLM documentation and analysis clearly identifies that some states already have significant economic benefits from solar energy development as follows:

This analysis clearly identifies that Utah is heavily reliant on recreational opportunities on BLM for huge amounts of recreational revenues [38] Simply recognizing this situation would have been highly valuable for the public and resolving maximizing recreational development to support local economies.  Failing to recognize this existing data in the Proposal is disappointing at best. Clearly this level of analysis is insufficient to comply with the specific mandate of EO 14008 or EO 14057, which the Proposal simply never mentions. This level of dismissive economic analysis falls well short of the requirements of economic analysis for NEPA compliance. This simply must be remedied.

The Organizations are concerned that the current modeling of recreation and planning requirements will result in disproportional impacts to multiple use recreation when compared to other uses.  These impacts will be more severe on developed or multiple use recreational areas, simply since the usage of these areas has been clearly identified by the Department of Commerce as the largest economic drivers of economic contributions.  Areas that are available for multiple use recreation are used much more frequently by users who spend significantly more money than those that choose to pursue recreational opportunities in areas with higher levels of protection.

The Department of Commerce’s Bureau of Economic Analysis provided the following representation of the comparative spending of several sectors within the recreational economy.  The BEA analysis of 2022-2023 for outdoor recreational uses provides the following breakdown of the highest value contributors for recreation as follows:[39]

The Organizations submit that every one of these activities would be able to be pursued in most of the areas identified as suitable for large scale solar development and would also be prohibited under most of the designations that also prohibit solar development. The immense conflict that immediately results from this situation warrants meaningful analysis of the comparative alternatives and exploration of tools or standards that could mitigate these possible impacts.  This is not only legally necessary but would bring recreational protections into alignment with the many protections of other uses that are already provided in the Proposal.

Again, the Proposal fails to address basic questions such as how was this assumption made?  What timeframe was identified to determine the assumption was correct? This is basic information and analysis required for any NEPA effort.  These requirements are only compounded in areas that are targeted for maximum development to create economic sustainability. Again, we must question how these goals and objectives for all recreational usage will be addressed as these goals largely conflict with the requirements of the Dingell Act designation of much of these areas as Wilderness or Swell Recreation Area with a capped road and trail network.  A developed campground without roads to the campsites will be of little value if there are no roads to access the campsites.  The difference economically between a tent campsite and a pull through style campsite that can accommodate a multi-million dollar RV could not be more stark and complete.

9(a). Why would a map with new lands with wilderness characteristics be included in a TMP?

While many of the foundational problems with the RMP/TMP remain unresolved despite assertions of the BLM in the Settlement and to various Courts, the Proposal appears to address issues entirely outside the scope of the Settlement as well.  The Proposal exemplifies this as it includes a map of LWC that fails to represent any portion of the existing RMP or any version of the Settlement Agreement. What is even more troubling is this inventory addresses areas outside the areas designated by the Dingell Act and includes large portions of the areas identified as now having Wilderness Character despite the fact that these were not managed for wilderness character in the existing RMP.  Large portions of the areas identified as having Wilderness character were specifically identified as not have wilderness character in the 2008 RMP.  The Organizations must ask what this map is attempting to reflect and why is it here as most of these new wilderness character areas are outside the Swell Recreation area as well.   This map is reflected as follows:

The RMP, which to our understanding is not being amended with the Proposal, provided the following map of areas that were managed for Wilderness Character.  This map also shows large areas not managed for wilderness character and areas that entirely lacked Wilderness character in the site-specific analysis that was provided in the 2008 RMP.  The 2008 RMP inventory and decision map is identified as follows:

The immensely problematic nature of the map begins with asking why would such a map be thought necessary when so much of the underlying analysis is insufficient on its face? When compared to existing designations and changes from the Dingell Act, almost all the areas identified as Natural Areas on this new map were designated by Congress as Wilderness Areas, such as Middle Horse Mesa, Wild Horse Mesa, Reds Canyon and Little Ocean Draw Wilderness areas.  This step alone makes a separate designation of Wilderness Character Protection Area entirely irrelevant to any management decision. This type of concept is never mentioned in the RMP and would immediately create problems with the no buffer standard and other releases provided in the Dingell Act. This is simply another example of the faulty management analysis that has previously been exemplified by the Link Flats ISA/WSA area that was released as it was included in FLPMA §603 for nonwilderness multiple use in the Dingell Act.

9(b). Assumptions that WSA were closed to motorized compounds BLM failures in management spanning more than 75 years.

The Proposal immediate assumption that all WSA were closed to motorized usage at some point in the past is simply not accurate as the RMP specifically allowed motorized usages in limited amounts. This is a problem in isolation.  The impacts of the Proposal assumption that WSA have been closed to motorized can also compound existing failures of BLM management and inventory of these areas previously.  The long history of BLM errors and failures in the management of these areas can be immensely problematic as evidenced by the history of the Link Flat WSA/ISA outlined in the supplemental WSA inventory provided by the BLM:

“In sum, the status of Link Flats as a bona fide Natural Area is questionable. First, the Flats were never properly studied nor designated as a Natural Area; second, the original rationale for designation appears flawed; third, the legal description as published in the Federal Register appears to be in error; and fourth, there is a discrepancy between the actual area of Link  Flats and the area described.” [40]

The completely failed history of the Link Flat area for possible further management is discussed in great detail in the history of designation of the area, which provides as follows:

“Previous Designation: Link Flats was identified as a potential Research Natural Area in 1964 to protect a reported ungrazed association of plants. Although discussed for several years as a potential Natural area, it apparently was never formally designated. However, Link Flats did appear on an official listing of Natural Areas. On October 29, 1968 it was segregated from  entry or location under the general mining laws, and surface use and occupancy under the mineral leasing laws by official notice in the Federal Register (which referenced it as “Link Flats Natural Area”). The next year the District Manager informed the State Director that the area did in fact have a history of grazing use and recommended the Natural Area listing be discontinued because Link Flats did not qualify. This recommendation was never implemented.

It is not clear what the exact extent of the Natural Area was intended to be. The total acreage mentioned for the Natural Area in 1964 was 960 acres of vacant public lands and 350 acres of State lands. Sections 28 through 32, T23S, R9E, SLM, but the exact area was unspecified. The only legal description published for the Natural Area was in the 1968 segregation notice in the Federal Register:
T23S, R9E,
Sec. 29, Sl/2 NE1/4, SEl/4, El/2 SWl/4;
Sec. 30, SEl/4 NWl/4, El/2 SWl/4;
Sec. 31, Wl/2 NWl/4, Sl/2 NEl/4, Sl/2;
792 acres
There appears to be some error in this legal description. The acreage noted totals 912 acres, not 792 acres as stated. The Wl/2 NWl/4, Section 31 is not part of the Flats, but rather contains a steep bluff; the El/2 of the NWl/4 is totally on the Flats but is not included in the legal description. When comparing the legal description with the physiographic boundaries of the Flats, about 180 acres of the described area is not on the Flats and about 220 acres of the Flats on BLM lands is not included in the legal description. There is no mention of any area in Section 28 as there was in the 1964 notation of the area.” [41]

These failures could directly impact motorized access to the Link Flat area as significant motorized usage on a small parcel that is separated from other areas designated as specifically noted in the 1991 inventory  as follows:

“Naturalness: The ISA contains approximately 4 miles or roads (one of which bisects the ISA), 1 mile of travelled way, 2 miles of visible wheel tracks (probably associated with claim assessment work), and a stock reservoir. The ISA has lost its natural character.”[42]

It should be noted that the Link Flat WSA/ISA was recommended not to be designated Wilderness in the 1991 WSA inventory. We would submit that this recommendation was a factually and legally sounds recommendation in 1991. Congress actually followed through with this recommendation in the Dingell Act and released this area back to multiple uses.  The Organizations would submit that rather than continuing the failed and erroneous management of this area outlined in the BLM inventory, the Proposal should actually correct the error in the BLM records that has spanned almost 75 years that has been provided with the Congressional release. Alternative A must recognize the routes in this area as currently open and then recognize the erroneous decision making was also corrected by Congress when they released the area from possible future designations and allow these routes to remain open.

9(c).  Link Flats is an area that was managed pursuant to §603 inventory and was released under Dingell Act

The Organizations address the Link Flats ISA/WSA area in detail as this is an example of how the failure to accurately address management designations more than 20 years ago has snowballed over time.  This effort has caused trails to be closed and these were concerns raised in the original legal challenge by many parties. Given the confusion of so many planning efforts, the Organizations must question where the correct planning effort is to address issues such as these.

Contrary to most assertions in the Proposal changes to Link Flats managed were NEVER required by Congress.  FLPMA 603(c) specifically provides for the protection of existing uses of these areas.  Management of these areas is specifically identified as follows:

“(c) During the period of review of such areas and until Congress has determined otherwise, the Secretary shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness, subject, however, to the continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on October 21, 1976: Provided, That, in managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources or to afford environmental protection. Unless previously withdrawn from appropriation under the mining laws, such lands shall continue to be subject to such appropriation during the period of review unless withdrawn by the Secretary under the procedures of section 204 of this Act for reasons other than preservation of their wilderness character. Once an area has been designated for preservation as wilderness, the provisions of the Wilderness Act [16 U.S.C. 1131 et seq.] which apply to national forest wilderness areas shall apply with respect to the administration and use of such designated area, including mineral surveys required by section 4(d) (2) of the Wilderness Act, [16 U.S.C. 1133(d)(2)] and mineral development, access, exchange of lands, and ingress and egress for mining claimants and occupants.[43]

Link Flats ISA was included in the §603 inventory finally approved by BLM in 1991. A copy of that site specific analysis from the 1991 report is attached as Exhibit “4”to these comments.  One passing reference to Link Flats in 2008 RMP/TMP no analysis is provided as to why management would have changed in the TMP/RMP. Given this failure of the management process, we must ask how the public was expected to engage in this process.  The Dingell Act specifically released all areas identified in §603 not designated as Wilderness for non-wilderness multiple use. We would like to understand how trails were lost in this area given the decades of what BLM has specifically identified as questionable management decisions for the area spanning 75 years.  We must also ask how it was thought to be proper as establishing a credible legal baseline for existing routes at the time these areas were designated must occur prior to addressing how they should be managed in the future.

10. Minimal impacts of recreation when compared to statutory changes since RMP.

The Organizations are very concerned that even the limited information provided around the Proposal entirely lacks context but reflects a generally successful management situation.  The site-specific route inventory only notes 66 points of concern over a four-year period on more than 875 miles of routes.  This is a minimal management concern and simply does not justify any closures to existing routes.   For many of these reports we must question the nature of the damage report as the use appears highly isolated for many areas, such as a single set of tracks accessing an area. We doubt this has consistently occurred over 4 years.

Often the limited route inventory provides limited and overly conclusory determinations around what is a legal usage and what is damage.  Almost every location reference wilderness character as an issue impacted but fails to address why only sites in Wilderness managed areas were inventoried. Critical information about these areas is not provided such as if these WCA areas or WSA areas. Again, issues such as interim Wilderness Study Area management are not addressed, despite these requirements being highly relevant to any analysis as these guidelines do not prohibit any impact, they prohibit impacts that go beyond usage at the time the area was inventoried and impair the areas possible designation as Wilderness by Congress.  There are many facets to this decision that should be addressed if these site-specific reports are sought to be the basis of management decisions.

These reports further include management issues that are entirely outside the scope of the travel management process.  As an example, the Proposal inventory identifies damage is often asserted from ranchers maintaining fences (we have to assume under a permit and outside travel management).    By definition this activity is managed under the terms of a specific permit not the travel management process.  We are aware some permits require the use of horses or foot for maintenance.  We are unable to address an issue such as this as permitted activities are outside the scope of this effort. Given this situation, we must ask why route closures for public recreational usage would be relied on to address this issue. If there are problems with a permitees the permit must be the first place for management. Closing recreational access will not fix this as permitees are aware they are not bound by travel management decisions. Closures of public access will create immense amounts off conflict between the managers and the public.

Many of these site-specific reports also mention the public accessing dispersed camp sites. While these conclusions are made, there is no mention if this damage is in violation of the RMP, which provides almost no guidance on camping regulations for areas outside SRMA designated areas. Even within the SRMA areas we must question if these standards would be in conflict with the unresolved planning requirements for these areas.  We find it difficult to justify an assertion of a fire ring being damage in an area where fire rings were permitted or targeted for development.  This type of assertion only becomes more problematic in areas previously identified for maximum development for economic sustainability.  These goals and objectives, regardless of their level of implementation, would be highly relevant to this effort.

Managers accept no responsibility for their failure to provide basic information.  Several references in the inventory identify damage based on the public overshooting corners or missing turns. This is immediately identified to be damage without excluding possible legal reasons to continue on the route or asking if the route was properly marked.  These types of conflicts are exacerbated by the failure to address routes managed as existing routes designations in the RMP.  Are these routes that were managed as an existing route with the expectation of future management efforts and never closed?  This type of information would be highly relevant to discussions such as this.

11. User Conflict is created between the public and managers in their attempt to resolve possible conflict between uses.

The second reason we are compelled to address conflict is our experiences with travel management on a national level as it has been our experience that often areas can be successfully managed for decades with minimal to non-existent user conflicts.  When there is the mention of travel planning being updated immediately there are certain interests that start claiming conflicts are escalating and the only management tool that can reduce conflict is through closure.  Often these user conflicts are asserted to be occurring at large levels between that user group and others despite the group using a planning area at only very limited scales or limited times of the year.  The Organizations are always hesitant to even address user conflicts with management decisions and processes in this situation.

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

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

“For interpersonal conflict to occur, the physical presence or behavior of an individual or a group of recreationists must interfere with the goals of another individual or group….Social values conflict, on the other hand, can occur between groups who do not share the same norms (Ruddell&Gramann, 1994) and/or values (Saremba& Gill, 1991), independent of the physical presence or actual contact between the groups……When the conflict stems from interpersonal conflict, zoning incompatible users into different locations of the resource is an effective strategy.  When the source of conflict is differences in values, however, zoning is not likely to be very effective. In the Mt. Evans study (Vaske et al., 1995), for example, physically separating hunters from nonhunters did not resolve the conflict in social values expressed by the nonhunting group. Just knowing that people hunt in the area resulted in the perception of conflict. For these types of situations, efforts designed to educate and inform the different visiting publics about the reasons underlying management actions may be more effective in reducing conflict.” ^[44]

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

“The travel management planning process did not directly assess the prevalence of on-site conflict between non-motorized groups accessing and using the yurts and adjacent motorized users…. The common definition of recreation conflict for an individual assumes that people recreate in order to achieve certain goals, and defines conflict as “goal interference attributed to another’s behavior” (Jacob & Schreyer, 1980, p. 369). Therefore, conflict as goal interference is not an objective state, but is an individual’s appraisal of past and future social contacts that influences either direct or indirect conflict. It is important to note that the absence of recreational goal attainment alone is insufficient to denote the presence of conflict. The perceived source of this goal interference must be identified as other individuals.”^[45]

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

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

12. Executive Orders requiring an expansion of recreational opportunities issued by President Biden must be accurately addressed in the Proposal.

Our concerns around the numerous actions by Congress have directly targeted landscape level planning requirements that are not accurately summarized or entirely overlooked in the Proposal, are addressed previously. These concerns extend to various Executive Orders, several of which have been issued and refined by numerous administrations. While some Executive Orders may have been in place for more than 50 years, and as a result might be more easily excused for not being analyzed, many Executive Orders issued by President Biden are mentioned but in a woefully inaccurate manner. The recent issuance of Executive Order # 14008 by President Biden on January 27, 2021 would be an example of a decision that is partially and woefully inaccurately summarized in the Proposal.  According to the Proposal EO14008 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.”[46]

The Organizations do not contest that a climate action plan is a portion of this EO, but the EO spans more than 27 pages and addresses a wide range of other topics that must also be addressed as part of this effort. These other factors simply are ignored in the Proposal, as exemplified by the fact that EO14008 specifically addresses the requirement of expanding recreational access and economic benefits FIVE DIFFERENT TIMES 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 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.”

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

Unfortunately, this is not the only time that new Executive Orders issued by President Biden are not accurately summarized in the Proposal. EO 14072 is also referenced numerous times in the Proposal and again the Proposal fails to reflect the scope and intent of this Order, and again this EO specifically recognizes and protects recreational usages 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.”[47]

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….”[48]

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.”[49]

After a review of the Proposal, The Organizations are not able to identify any portion of the Proposal that might comply with the requirements of EO 14072 or EO 14008. The public should not be required to review every document referenced in a Proposal of this scale to ensure that the provisions of the regulations or Executive Orders are at least accurately summarized. This is disappointing to say the least.

13. Buckhorn/Wedge designations of ebike only trails.

The specialized Turbo, the first commercially viable ebike in north America was not introduced until 2012. Sales remained slow for almost another decade in North America.  This is problematic as the Proposal asserts this area was restricted to Ebike only usage prior to 2008. While we don’t oppose creation of any trail we are vigorously opposed to the closure or restriction of access to any trail for the benefit of any user group without public engagement.  Any assertion is decision is moving the 2008 Price RMP forward in alternative A is deeply problematic as the RMP entirely fails to mention ebikes.

14. Conclusion.

Unfortunately, managers are not providing a single cohesive planning effort for the entirety of the Swell area that might be legally sufficient, such as those created by an EIS.  The motorized community vigorously objects to Alternative B of the Proposal as this entirely fails to provide any meaningful multiple use opportunities for recreation. While Alternative D of the Proposal is might be closest to something we can support as it asserts to close only 52 miles (2%) of routes, this Alternative fails to address that existing RMP/TMP decisions that were challenged already closed more than 730 miles (25%+/-) in the planning area. While a 2% closure may appear appealing, it is 27% closure rates from historical usage. Our concerns with the management baseline expand further as the management baseline fails to address the Congressionally mandated changes in the planning area, that heavily impacted public access to many areas. These were large changes; they warrant meaningful analysis in the Alternatives which simply has not been provided.

The Proposal further fails to resolve many of the underlying failures in planning and analysis that resulted in the Original Settlement Agreement. These failures are exemplified by the extensive number of critically specific standards and decisions that are attempted to be resolved in this Proposal without the scrutiny of the NEPA process despite the settlement agreement in this matter specifically requiring this type of analysis.

The Organizations would welcome discussion with managers on how to provide sustainable high quality recreational opportunities in the planning areas.  We would also welcome a discussion regarding a strategy to develop meaningful plans for the area and resolve the issues underlying the numerous problems presented in these comments. The idea of further litigation in this matter, which will probably be successful simply does not appeal to us. At some point we would welcome resolution of planning issues in the area so we can move into implementation of recreational opportunities in conformity with the Proposal.   If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com), Chad Hixon (719-221-8329 / chad@coloradotpa.org), or Clif Koontz (435-259-8334 / clif@ridewithrespect.org).

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President
CORE

Clif Koontz
Executive Director
Ride with Respect

[1] A copy of any of the documents on this effort are available upon request.

[2] A copy of this decision is attached as Exhibit 1 of these comments.

[3] See, 42 USC 4332(2)

[4] 40 CFR 1502.9

[5] See, 40 CFR 1508.25a1

[6] See, BLM Travel Management regulations at 8342-1 (I)(A)

[7] See, Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718 (1976)

[8] See, Alpine Lakes Protection v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975)

[9] See, Thomas v Pederson 753 f2d 758; 758

[10] For your convenience a copy of this settlement agreement is attached as Exhibit “2” to these comments.

[11] See, Interinsurance Exchange Auto Club of Southern California v. Ohio Casualty Insurance; 23 Cal Rprt 592, 594, 373 P.2d 640, 642 (1962)

[12] See, 2017 Settlement Agreement at pg. 2.

[13] See, 2017 Settlement Agreement §a(3) pg. 4.

[14] See, 2017 Settlement Agreement at pg. 7.

[15] See, 2017 Settlement Agreement pg. 37 para 39

[16] See DOI; Bureau of Land Management; BLM Manual 1626: TRAVEL AND TRANSPORTATION MANAGEMENT; 9-27-2016 at pg. 3-1

[17] A copy of these comments are attached to these comments as Exhibit “3”.

[18] See, 2008 Price FO RMP FEIS at pg. 5- 168

[19] See, 2008 Price FO RMP FEIS at pg. 5-168

[20] See, Proposal at pg. 5

[21] See, Proposal at pg. 5.

[22] See, Proposal at pg. 5

[23] See, 2008 Price FO RMP FEIS at pg. 5-168

[24] See, Proposal at pg. 1.

[25] See, BLM TMP handbook pg. 10

[26] See, BLM TMP handbook at pg. 13.

[27] See, Proposal at pg.  1.

[28] See, Proposal at pg. 17.

[29] A copy of this map is available here: San Rafael Swell Recreation Area Released WSA Lands Scoping Map (blm.gov)

[30] See, RMP at pg. 129

[31] See, Public Law 116-9 §1234

[32] See, Public Law 116-9 §1232

[33] See, RMP Director Objection resolution to 2008 RMP/TMP pg. 85 See also pg. 87,88

[34] See, 2008 RMP at pg. 2-76

[35] See, 2008 RMP at pg. 2-77-78

[36] See, PFO ROD at pg. 110.

[37] See, Proposal at pg. 126.

[38] See, The BLM: A Sound Investment for America 2022

[39] See, Dept of Commerce; Bureau of Economic Analysis; Outdoor Recreation Satellite Account, U.S. and States, 2022; New Statistics for 2022; Updates for 2017–2021; No 17, 2023 at pg. 5. A full copy of this report is available here: Outdoor Recreation Satellite Account, U.S. and States, 2022 | U.S. Bureau of Economic Analysis (BEA)

[40] See, BLM 1991 WSA Inventory at pg. 1027-28. A full copy of this inventory report is attached as Exhibit “4” to these comments for your convenience.

[41] See, BLM 1991 WSA Inventory at pg. 1027

[42] See, BLM 1991 Inventory at pg. 1026

[43] See, 43 USC 1782(c)

[44] See, Carothers, P., Vaske, J. J., & Donnelly, M. P. (2001). Social values versus interpersonal conflict among hikers and mountain biker; Journal of Leisure Sciences, 23(1) at pg. 58.  

[45] See, Norling et al; Conflict attributed to snowmobiles in a sample of backcountry, non-motorized yurt users in the Wasatch –Cache National Forest; Utah State University; 2009 at pg. 3.

[46] See, Proposal at pg.  19587

[47] See, EO 14072 at §1

[48] See, EO 14072 at §2

[49] See, Exec Order 14072;  Vol. 87, No. 81 Federal Register 24852 (2022)

Senator Michael Bennet
261 Russell Senate Building
Washington, D.C. 20510

Senator John Hickenlooper
374 Russell Senate Office Building
Washington, D.C. 20510

Congresswoman Lauren Boebert
1713 Longworth House Office Building
Washington, D.C. 20515

Regional Forester Troy Heithecker
U.S. Forest Service, Rocky Mountain Region
1617 Cole Blvd.-Building 17
Lakewood, CO 80401

U.S. BLM State Director Doug Vilsack
PO Box 151029
Lakewood, CO 80215

Governor Jared Polis
200 E. Colfax
Denver, CO 80203-1716

Re: Possible Colorado River Canyon Monument designation

Dear Sirs:

Please accept this correspondence as the Organizations vigorous opposition and deep concerns to the Proposed Dolores River National Monument.   Our Organizations have been very engaged with the Proposal area for decades and have been monitoring this discussion in the hope of obtaining some type of clarity of what is and what is not being discussed.  Given the confusion and conflicting messaging that is being displayed, we believe the time has come for us to state why we are opposing the Monument. Too often splashy headlines have been chosen over substantive meaningful discussions of ideas, developing understanding and possibly working towards a collaborative vision.  Discussions have failed to provide consistency on what is being discussed and the inability to start from a single coordinated point for any discussion is deeply concerning. Too frequently certain groups are speaking for other user groups that they do not represent, and basic questions, like what is wrong with current management of the area, are not addressed.

Our opposition to the Proposal starts with a question: “What has changed in the management of these areas since the close of the last collaborative efforts around management of these areas?” Our position is that nothing has changed.  Some groups assert they did not get the outcome they desired out of recently completed planning efforts and clearly this small number of groups have sought to drive this effort because they did not get what they wanted.  This is a major concern as the motorized community lost opportunities in the GJFO RMP revision and appears to be the only group that would immediately lose access in this Proposal as well. Rather than identifying areas where access could improve, these discussions seem to start with a position that all closures for multiple use remain in place, and access will be lost in many more areas as well. This simply is not collaboration in any form and for obvious reasons this is unacceptable for us.

Existing planning was completed less than a decade ago.

The Organizations have a long history of collaborations and discussions in this general planning area, including efforts around the development of the BLM Grand Junction FO RMP in 2015, the BLM Tres Rios FO RMP finalized in 2013 and the USFS GMUG RMP update completed in 2022. Our efforts to collaboratively resolve management of this area have literally spanned more than a decade.  Despite more than a decade of discussions and attempts to balance these concerns in planning with management efforts, much of the concerns raised by supporters of the Monument were found to be factually incorrect in previous planning. As an example, in the recent GMUG planning efforts, there was a narrative from some groups that wildlife populations were collapsing. This was not supported by any documentation as when the population goals for wildlife were reviewed, elk populations on the GMUG were 30% above goals and deer populations were only slightly below objectives due to heavy snowfalls during the last several years. We have little interest in collaboration to resolve issues such as these.  The information being used is often incorrect or the management solution cannot be provided in any regulatory process.

We believe that it is important recognize the almost complete overlap of the GJFO analysis areas and the current monument Proposal.  Many of the areas now sought to be made a Monument and be subjected to immediate access restrictions, were specifically reviewed for higher levels of restrictions to the public in the Grand Junction Field Office RMP development process.  Those restrictions were eventually declined to be applied by land managers. Some of these areas had important trails for all forms of recreation that were lost, while access to other areas was maintained despite citizen proposals to close the entire area.

Generally, we thought that planning documents such as the GJFO RMP struck a reasonable balance of interests in this area as no single group got exactly what they wanted. Generally, the Organizations would assert that management needs to occur in the area as the largest concern we hear in the area is poor signage and a lack of infrastructure.  There is no need for more collaboration on further restrictions to public access as RMPs have been updated. While we are aware there is legislation that would force a collaboration type effort, prior to our support for any collaborative, we must receive a reasonable answer to why any collaborative effort for the area would thought to be needed.

Once questions of why collaboration would be reopened on issues resolved in the GJFO RMP, we would like to understand how the starting point of any collaboration was established as motorized access to areas that were closed in the RMP would be outside the scope of reopening.  Several of these areas have historical access and we would like to have that access restored. If a collaborative effort were to move forward clearly everyone should start with an equal foundation and position. The Proposal fails to provide that foundation as it starts the motorized community from a double loss position as we cannot reopen discussions on access to areas closed in the RMP and motorized is the only group that would immediately lose access, with a prohibition on road construction, is the motorized community. The Organizations are further disappointed that the only motorized value recognized by many in this discussion is the Rimrocker trail. While the Rimrocker Trail is an important resource in the planning area, it is far from the only value in the area.

Collaboration fatigue.

We are also concerned that many in these discussions seem to want to force another collaborative effort despite the failure to explain the need for the collaboration in the first place. Collaboration simply to collaborate is of little value and exacerbates a consistent issue we are seeing throughout the State. There are simply too many collaboratives on too many issues and this over collaboration diminishes the value of all collaboratives.  Many of the public simply do not have time to participate in each of these efforts despite the public interest in the effort or topic being addressed.  Too often these collaboratives start with a particular target but as time passes the target of the discussion shifts to other topics, often without public notice of these changes. This only further diminishes the value of any collaboration as we should look forward rather than reopening issues.

The sheer number of collaboratives in the last several years has become overwhelming.  Colorado has collaborated on wolves, we expect to be collaborating on wolverines in the near future, the western slope has been through multiple federal forest level planning efforts, dozens of site specific NEPA efforts, the Governor’s Office is driving efforts to balance recreation and conservation through B2020-008, forest health efforts with the USFS. This creates a situation where there are too many collaboratives function at the same time as often we hear that multiple meetings are occurring on the same nights at the same times.

We must ask why another collaborative is thought to be needed for issues we see as resolved?  Often basic questions such as these are simply not addressed.  If these existing groups do not want to discuss a citizen proposal, that is a statement of the lack of support on the Proposal and not the need for another collaborative effort. It is our position that the Proposal does not have sufficient support to move forward with any effort as most communities that are near the planning area have already opposed any further efforts towards a monument.

Our partnerships with land managers.

The Organizations have taken a very different collaborative path to provide sustainable recreational opportunities in the planning area. Rather than developing another legislative effort that never gets implemented or seeking another round of planning, the Organizations have partnered with land managers to provide funding for the actual management of these areas. This effort has now spanned more than 50 years in partnership with CPW. This collaborative effort provides funding rapidly approaching $10 million in grants a year to land managers for the management of public lands. While we are proud of the benefits this program and the benefits of sustainable recreational opportunities it provides for all users of public lands, this program takes significant volunteer effort to administer and implement. Partner grants must be applied for and managed, contractors must be overseen, tax returns must be completed.  These are all done by the same volunteers that are now being asked to collaborate with those that want to close these opportunities. This request must be declined by our interests as we support current management and will not benefit from the monument designation.

We are intimately aware of the current budget situation facing federal managers and we are the only recreational group working to mitigate this situation by directly funding staff for these managers. If there are additional funding needs that are unmet, we provide some of that funding. We are aware that regardless of management prescriptions for any area, management still needs to occur and that takes money and staff on the ground.  Managers still need to monitor areas and maintain infrastructure.  If  there is a seasonal closure in place to protect wildlife, managers need to open and close gates in the area.  We often fund employees to do this.  If the agency cannot afford gates, the program will buy them as well. The Organizations are VERY disappointed that despite our decades of partnership with managers for the benefit of all uses, the motorized community is the user group that starts from a double lose position in current discussions. This is simply unacceptable to us.

The management decisions currently in place are also driven by the fact the motorized community is the only recreational group who has been legally required to balance recreational opportunities with wildlife/resource protection.  This balancing has occurred since Executive Order 11644 was issued by President Richard Nixon in 1972.   Over this 50-year span, we have worked hard to proactively address wildlife/resource needs in conjunction with recreation.  This effort has a successful partnership of interests and in most areas of the state, wildlife populations were well above goals for the species and often challenges were entirely unrelated to motorized recreation. Our Organizations have also become the single largest partner with land managers in funding sustainable recreational opportunities on public lands across the state. This partnership and its benefits have been repeatedly recognized by agency leadership. Despite this recognition by managers, motorized usage is the only group to double lose in any monument proposal. We are very concerned that while many groups have made insignificant contributions to protect resources and wildlife, their concerns are provided greater protections. Again, this is deeply disappointing.

Conclusions.

We are forced to vigorously oppose the possible creation of the Monument as basic questions around the need to establish the need for a monument have not been resolved. Why would collaborations that spanned almost a decade and resulted in the GJFO RMP be reopened simply because a small portion of the public did not get exactly what they wanted. Even if the need for a monument was established, many of the proposed starting points for any discussion are entirely unacceptable to us. Many of these proposed starting points of discussion are not just insufficient but are insulting to our interests and the decades of funding that we have provided for the management of this area.

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. We simply do not believe the designation of the area as a Monument achieves this goal as rather than resolving conflict, the effort would create conflict and exacerbate the overly collaborative situation we are seeing in Colorado currently. 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
Trails Preservation Alliance

Marcus Trusty
President
CORE

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

RE: Bears Ears National Monument Resource Management Plan (DOI-BLM-UT-Y020-2022-0030-RMP-EIS)

Dear BENM RMP Project Manager:

Please accept this correspondence from the above organizations as our official comments regarding the Bears Ears National Monument (BENM) Draft Resource Management Plan / Environmental Impact Statement (DRMP/EIS) that was released by the Bureau of Land Management and U.S. Forest Service, which our comments will refer to as the “Lead Agencies.” Note that these comments are in addition to the June 10, 2024 letter signed by our organizations and eight others.

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. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands. Over 750 individuals have contributed money or volunteered time to the organization. RwR and its contributors have spent several-hundred hours maintaining trails designated for motorized use in the planning area. We have promoted minimum-impact practices including the preservation of cultural sites given their nonrenewable nature and tremendous value to our nation, particularly to indigenous Americans.

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

Our concerns have only increased since reviewing the Analysis of the Management Situation (AMS) in 2022. The RwR October 31, 2022 letter (included) listed 21 concerns. Although #9, #10, and #12.E were resolved, and #11, #12.H, and #12.I were partially resolved, the remaining 15 concerns have persisted or worsened, therefore we are including the RwR October 31, 2022 letter as part of this submission for the Lead Agencies to review (along with the Organizations’ June 10, 2024 letter).

3. The BENM DRMP/EIS showcases the failure of the Lead Agencies to heed the legal authorities that control this process.

A.
The Lead Agencies have failed to “to give … State, and local governments and the public, adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of the public lands.”  FLPMA Section 202(f), 43 U.S.C. § 1712(f) (Emphasis added).  The State of Utah and San Juan County (“the State,” “the County,” and/or “the State and County Cooperators”), much less the public of which the Organizations are a part, have been allowed no meaningful opportunity to  “participate in the formulation” of the DRMP/EIS.  The dictionary defines “formulation” as the act or process of formulating.  The dictionary definition of “formulate” is to devise or develop.  The dictionary definition of “devise” is to contrive, plan, or elaborate; invent from existing principles or ideas.  The dictionary definition of “develop” is to bring into being or activity; generate; evolve.  In light of these well understood definitions, in no meaningful way have the State, the County, and the Organizations been allowed to participate in the formulation of the elements of the DRMP/EIS.

Despite numerous requests for the opportunity to participate in the formulation of the subject document, the most that can be said is that the State, the County, and the Organizations have been asked to comment, after the fact, on various documents produced by Lead Agencies along the way, documents which the Lead Agencies alone have formulated  – with perhaps a little help from the so-called Bears Ears Inter-Tribal Coalition, whose members are mostly out of state or out of local area, thus making a mockery of the traditional planning area-based coordination, cooperating agency, and planning processes dictated by Lead Agencies Organic Acts, NEPA, and their associated regulations.

In short, the DRMP/EIS simply is not something that the State and County Cooperators and Organizations can say they have helped to “formulate.”  This stands as an irremediable violation of FLPMA 202(f).  Accordingly the BENM DRMP/EIS process to date should be scrapped, re-noticed and the Lead Agencies should start over and this time comply with FLPMA 202(f).

B.
In violation of FLPMA Section 202(c) obligations, see 43 U.S.C.  § 1712(c), the Lead Agencies have made impossible the mandated coordination work among the Lead Agencies and the State and County cooperators to achieve maximum consistency with state and local plans and policies, to the maximum extent possible, while achieving the objective of protecting the relevant inventoried BENM objects.  Why has this become impossible?  Because the Lead Agencies have failed to properly inventory and reveal to the State and County Cooperators, what those Proclamation mandated objects for protection even are.  There is nothing in the hundreds of pages of the DRMP/EIS that indicates otherwise.  Thus the “coordination” work among the Lead Agencies and State and County Cooperators, necessary to uphold state and local resource management plans to the maximum extent possible while still protecting identified monument objects, is an impossible non-starter in this case.  The BENM DRMP/EIS process has utterly failed in this regard.

One can hardly make this stuff up, to think that the State, County, the Organizations and other members of the public, now have a DRMP/EIS they must comment upon, when none of the needed coordination and consistency work has even been started in order to justify the DRMP/EIS and its restrictions on travel in the Monument, as well as restrictions on other established resource uses.  Again, this is all due to the Lead Agencies’ refusal to first determine, and then share, information on the objects to be protected.  One may reasonably wonder whether the Lead Agencies themselves even have in their possession a comprehensive inventory of such objects, much less have shared them.

Consider how dysfunctional the above-described situation is while contemplating the following mandate under FLPMA  § 202(c)(9):

(9) to the extent consistent with the laws governing the administration of the public lands, coordinate the land use inventory, planning, and management activities of or for such lands with the land use planning and management programs of other Federal departments and agencies and of the States and local governments within which the lands are located, including, but not limited to, the statewide outdoor recreation plans developed under chapter 2003 of title 54, and of or for Indian tribes by, among other things, considering the policies of approved State and tribal land resource management programs. In implementing this directive, the Secretary shall, to the extent he finds practical, keep apprised of State, local, and tribal land use plans; assure that consideration is given to those State, local, and tribal plans that are germane in the development of land use plans for public lands; assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal Government plans, and shall provide for meaningful public involvement of State and local government officials, both elected and appointed, in the development of land use programs, land use regulations, and land use decisions for public lands, including early public notice of proposed decisions which may have a significant impact on non-Federal lands. Such officials in each State are authorized to furnish advice to the Secretary with respect to the development and revision of land use plans, land use guidelines, land use rules, and land use regulations for the public lands within such State and with respect to such other land use matters as may be referred to them by him. Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act.  (Emphasis added.)

C.
The foregoing FLPMA 202 obligations are reflected in the Council on Environmental Quality (CEQ regulations) to which the Lead Agencies are subject.  40 CFR § 1507.1   The Lead Agencies have failed to “[engage] in interagency cooperation before or as the environmental impact statement [DRMP/EIS] is prepared, instead arbitrarily opting to await submission of comments State and County Cooperators on a completed document,” in violation of 40 CFR § 1500.5(d).  The Lead Agencies from the very beginning in this EIS process, have merely submitted completed documents and sections thereof and waited for the cooperating agencies to comment.

Getting together with the State and County Cooperators from the beginning and together write and construct the DRMP/EIS, have not been features of this process.  This failure to engage State and County Cooperators in preparation of the DRMP/EIS from the start, also seriously violates the Lead Agencies’ duty and obligation under 40 CFR § 1500.5(j) to “[eliminate] duplication with State, Tribal, and local procedures by providing for joint preparation of environmental documents where practicable.”  It was certainly practicable here; the Lead Agencies just chose to ignore their regulatory obligation.

D.
“The Lead Agencies have ignored and violated their 40 CFR § 1506.2(b) obligations, namely:

“To the fullest extent practicable unless specifically prohibited by law, agencies shall cooperate with State, Tribal, and local agencies to reduce duplication between NEPA and State, Tribal, and local requirements, including through use of studies, analysis, and decisions developed by State, Tribal, or local agencies. Except for cases covered by paragraph (a) of this section, such cooperation shall include, to the fullest extent practicable:

(1) Joint planning processes.
(2) Joint environmental research and studies.
(3) Joint public hearings (except where otherwise provided by statute).
(4) Joint environmental assessments.”

Contrary to the above-quoted regulation, the Lead Agencies failed to have joint planning processes with the State and County Cooperators. The Lead Agencies failed to do joint environmental research and studies with the cooperators.

E.
The Lead Agencies failed “with respect to [the State and County] cooperating agencies,” to “use the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise, to the maximum extent practicable,” in violation of 40 CFR § 1501.7(h)(2).  Virtually every proposal and analysis of the County have been ignored, almost maximally.

F.
In violation of 40 CFR § 1501.7(i), the Lead Agencies, instead of developing an EIS schedule “in consultation with … cooperating agencies,” have one-sidedly and dictatorially forced an unreasonably accelerated EIS timeline and schedule, despite repeated requests for a lengthened EIS timeline.  Adding insult to injury, the Lead Agencies have dictated this accelerated schedule all while failing and refusing to provide State and County Cooperators with critical information about objects to be protected on the National Monument, thus depriving the State and County Cooperators of their ability to meaningfully function as coordinating partners and cooperators.

G.
Any notion that Lead Agencies have no choice but to stick to an arbitrarily rushed EIS timetable, is contrary to 40 CFR § 1501.10(b)(2) and (c), which state:

“(b)(2) [Agencies shall complete] environmental impact statements within 2 years unless a senior agency official of the lead agency approves a longer period in writing and establishes a new time limit. Two years is measured from the date of the issuance of the notice of intent to the date a record of decision is signed.

(c) The senior agency official may consider the following factors in determining time limits:

(1) Potential for environmental harm.

(2) Size of the proposed action.

(3) State of the art of analytic techniques.

(4) Degree of public need for the proposed action, including the consequences of delay.

(5) Number of persons and agencies affected.

(6) Availability of relevant information.

(7) Other time limits imposed on the agency by law, regulations, or Executive order.”

(Emphases added)

This regulatory language puts the lie to any claim by Lead Agencies that they are somehow bound to a ROD timeline in time for the 2024 Election. They as “senior agency officials” are entitled under regulation to lengthen that timeline in consideration of factors which include the following:

–  The potential for environmental harm.  Environmental harm, or effects, as Lead Agencies well know, includes effects to the human socio economic environment.  See, e.g., 40 CFR § 1508.1(g)(4), which states: “Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effects will be beneficial.” (Emphasis added.)

– The potential for widespread and deep socio economic harm to local constituents and local economies, that may result from this EIS/RMP, are significant.

–  The size of the proposed action.  This factor, given the overwhelming size of the BENM calls for consideration in terms of lengthening the EIS time line.

– The degree of public need for the proposed action.  It is absurd, the notion that there is a “public need” to damage the local economies and recreational traditions.  The only “public need” is to slow down and take the time necessary to make sure this matter is studied and vetted thoroughly.

– The “consequences of delay” also weigh in favor of extending the timeline. There is no serious dire consequence that will result from a sizable time extension.

H.
The travel management portion of the DRMP/EIS has the obvious substance and tone of a document serving to justify anti OHV decisions already made between the current administration and groups advocating the vast expansion of wilderness designation, with no or little regard for its impact on the human environment.  This runs afoul of 40 CFR § 1502.2(g), which states: “Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made.” (Emphasis added.)    The very idea of assessing impacts of actions, as required by this regulation, is impossible due to a lack, to date, of any credible inventory of the Monument objects to be protected, much less an assessment and analysis of why any wholesale OHV/no-OHV area designations and other motorized travel restrictions are necessary to protect such objects, despite that the Lead Agencies have yet to analyze the individual routes that they’re preemptively closing.

I.
Collaborative efforts by the Lead Agencies should remain faithful to the congressional directive of public lands to benefit the public as a whole.  Statutory and regulatory authorities recognize the roles of States, Local Governments and Tribes as the entities to represent the public interest, particularly in the administrative phase of a NEPA process.  Yet with the BENM DRMP/EIS, the Bears Ears Commission (BEC) have abrogated center stage in the process, the BEC have been blindly following the recommendations of a private nonprofit group called Bears Ears Inter-Tribal Coalition (BEITC), whose positions are completely in line with the wilderness-expansion groups that share the same funding sources, and the BEITC have essentially captured the Lead Agencies in that the DRMP/EIS carries forward the BEITC LMP’s emphasis on “a holistic approach to all resources that gives primacy to indigenous knowledge and perspective on the stewardship of the Bears Ears landscape.”  The legal failing with this slow-walked accretion of BEC and BEITC influence and control by winks and by nods, is to unlawfully marginalize and squeeze out the time-honored, warranted, and rightful statutory and regulatory based roles and input of the State and County coordinating and cooperating partners in the Planning Area, as well as that of other important public stakeholders, such as the Organizations.

J.
It is discouraging that such detailed pains have to be taken to explain to the Lead Agencies in these Comments, the foregoing legal requirements and principles of inventorying and reasonably identifying monument objects to be protected, and of coordinating with State and County officials to achieve maximum consistency with State and County plans and policies while protecting those Monument objects.  You all know better; you already understand these requirements and principles.  All you need are the will and the determination to apply them instead of undermine them.

K.
From the foregoing points, Lead Agency action items essential to salvage the legality of the BENM DRMP/EIS process include but are not limited to the following:

– Discard the current timeline, discard the current DRMP/EIS, and extend the DRMP/EIS process by at least 18 months;

– Start over and this time honor your coordinated formulation requirements and give State and County Cooperators and the Public including the Organizations where appropriate, a fair and reasonable opportunity to participate in the formulation of the DRMP/EIS, particularly the travel management plan portion thereof;

– Provide a reasonably detailed inventory of all Monument objects to be protected;

–  Strive to achieve maximum consistency with State and Local travel management plans; otherwise, justify inconsistencies between the State and County travel management plans and the travel management portion of the DRMP/EIS by objectively and rationally demonstrating why each inconsistency is necessary to protect a reasonably inventoried object to be protected;

– Discontinue the practice of waiting until release of the public draft EIS before ever informing the State and County Cooperators and Public of the different travel management alternatives.  Instead, give the State, County, the Organizations where appropriate, and the rest of the Public where appropriate, to work side by side with the Lead Agencies to formulate the travel management alternatives, to formulate descriptions of the affected environment, and to work in conjunction to assess the estimated impacts thereto.

4. Recognize our organizations as important stakeholders in BENM.

In addition to advocating access for responsible OHV riding, the Organizations have spent countless hours partnering with agencies to effectively manage motorized recreation, which cannot be substituted by other stakeholders. Of course we also recognize the contributions of other OHV groups such as SPEAR, the input of local government such as San Juan County, and indigenous Americans particularly when it comes to managing cultural sites. Specific to BENM, RwR and its contributors have spent several-hundred hours maintaining motorized singletrack like Vega Creek, Shay Mountain, and Indian Creek, on ATV trails like Gooseberry and Shay Ridge, and on primitive roads like Chicken Corners. We are one of the many stewards of BENM that the Lead Agencies should encourage rather than marginalize.

5. Recognize recreation as instrumental to appreciating and ultimately protecting monument objects.

Input from the BEITC and wilderness-expansion groups seems to have made the DRMP/EIS regard recreation as a nuisance rather than a necessity for humans to thrive and foster a sense of genuine stewardship. The draft refers to “traditional, cultural, and spiritual uses” as if they’re separate from recreation, yet activities like camping and travelling through the landscape are often how these concepts like a spiritual pursuit are actually practiced, thus recreation is instrumental. While the DRMP/EIS action alternatives apply the most excessive restrictions to motorized recreation, the Organizations note that some excessive restriction applies to non-motorized recreation, such as the preferred alternative’s prohibition on hiking off of designated trails in the Remote RMZ that covers over three-quarters of the planning area. While limiting hiking to designated routes may be appropriate in settings such as an archaeological site, doing so across more than one-million acres is just one way in which the DRMP/EIS (and especially the preferred alternative) would actually work against the values associated with traditional, cultural, and spiritual uses.

6. Recognize active and practical management as instrumental to protecting monument objects.

Just monument objects aren’t protected by excessive restrictions to recreation, excessive restrictions to management are also detrimental. Management often requires negative impacts upfront to reduce negative impacts in the long term, such as mechanical treatments as a key tool for forest health, and the same is true of recreation. Much of the DRMP/EIS (especially the preferred alternative) would only make it harder for the Lead Agencies to effectively manage visitation.

By the same token, it’s important to place certain guardrails on management in terms of the range of actions and the process of future planning. While the DRMP/EIS (especially the preferred alternative) isn’t sufficiently flexible for things like travel management, it’s too vague when it comes to concepts like a cultural landscape or processes like leaving many decisions to the co-stewardship of the Lead Agencies and BEC without clear opportunities for public review and participation.

7. Work with the state and county to manage motorized use of the road in Arch Canyon.

The BLM has recognized the historic use of Arch Canyon Road so, rather than contradicting this recognition by attempting to close the road, the Lead Agencies would be far more productive working with the State of Utah and San Juan County to more closely manage motorized use of the road given Arch Canyon’s significance for natural and social resources including the road itself.

8. Accommodate Over-Snow Vehicle Use as an important recreational use of BENM.

The Manti-La Sal National Forest portion of BENM provides valuable opportunities for snowmobiling and other over-snow vehicle (OSV) use, which is appropriate compatible with resource conservation. Other than when reciting the current LMP for this national forest, the DRMP/EIS doesn’t seem to address OSV use whatsoever, yet the action alternatives seem to restrict is severely.

The DRMP/EIS states that the following definitions for OHV area designations:

“Limited: Designated areas where motorized vehicles are restricted to existing and designated routes. Off-road, cross-country travel is prohibited in limited areas, unless an area is specifically identified as an area where cross-country, over-snow travel is allowed. Some existing routes may be closed in limited areas.

Closed: Designated areas where off-road motorized vehicle travel is prohibited year-round. Emergency use of vehicles is allowed year-round.”

These definitions suggest that OSV use would be prohibited in areas zoned as OHV closed, which the DRMP/EIS proposes to expand dramatically to cover most of the high-elevation terrain where OSV use is possible. So conserving wintertime motorized recreation is yet another reason to simply keep the OHV area designations in place, as winter ROS zones could be added to carefully restrict OSV use in a portion of the OHV Limited areas, but ROS zones could not be added to carefully allow OSC use in a portion of the OHV Closed areas.

9. Reform Recreation Management Zones to avoid essentially expanding the restrictions of other managerial layers such as ROS and OHV Area Designations.

The DRMP/EIS preferred alternative would make over three-quarters of the monument a Remote RMZ, which includes strict policies such as “New mechanized trails would not be allowed in the Remote Zone.” We’re concerned that this arrangement would hobble effective OHV management in much of the acreage that’s spared from non-motorized ROS and OHV Closed zoning. Therefore RMZ acreage and policy should be scaled back so that they assist the Lead Agencies to manage recreation rather than effectively expanding the ROS and OHV Area restrictions that are already proposed to be severe.

10. Preserve ROS zoning that has worked well for decades.

See the RwR and TPA November 16, 2023 letter to Manti-La Sal National Forest LMP planners (included), specifically parts 19 through 27, as well as the attached “ROS zoning details.”

11. Preserve OHV Area zoning that have worked well for decades.

See the attached “OHV Area zoning details.”

12. Correct Alternative A errors on the DRMP/EIS tables and figures regarding current ROS, current TMP, and OHV Area zoning.

The specific table is 3-133, and figures are 2-28, 3-40, and 2-38 through 2-42, which are described in the attached “Alternative A error details.”

13. Conclusion

Please go back to the drawing board and develop a sound DRMP/EIS for this area that’s so important to all Americans.

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

ROS zoning details

The current Recreation Opportunity Spectrum (ROS) zones from the 1986 LMP of Manti-La Sal National Forest have worked well. In the nearly forty years since then, there has been no significant development of OHV trails that would warrant drastically expanded non-motorized ROS zones, although we are open to carefully refining the boundaries after the given areas are more closely analyzed by the Lead Agencies and the public.

The RwR and TPA November 16, 2023 letter to Manti-La Sal National Forest LMP planners (included) addressed ROS in parts 19 through 27, and those parts are applicable to the BENM DRMP/EIS, so please review them as part of our comments.

Keeping areas in a motorized zone provides the most flexibility for managers to designate routes that would occupy up to 1% of the area (as TMPs almost never exceed that density) or designate no routes (as motorized ROS zones don’t require a minimum route density).

However if motorized zones will be shrunk, they should at least provide buffers wide enough to reroute and otherwise manage motorized routes as needed. For example the DRMP/EIS action alternatives proposes a corridor that appears to be 100 meters wide for Shay Mountain motorized singletrack (Trail 098), leaving just 50 meters on either side, which is like putting the trail in a straitjacket. Since USFS planners are aware that this trail would benefit from rerouting, and they’re presumably aware that rerouting within a 100-meter corridor would require many switchbacks that are costlier, it suggests that the ROS zoning is setting the stage to close the trail. After all, RwR has implemented the construction of many reroutes with USFS on Red Ledges and Robertson Pasture Trail, several of which were up to 200 yards away from the original location, and one that was over 500 yards away. Motorized zones provide the latitude to optimally place routes through rugged terrain and away from sensitive resources.

Motorized zones typically provide great opportunity for non-motorized recreation in part because most Travel Management Plans (TMPs) have a low density of routes. Also motorized zones can be enhanced for non-motorized recreation through reducing vehicle sound, but not in the manner that the DRMP/EIS proposes. An environmental sound limit of 30 dBA, let alone 25 dBA, may require vehicles to be more than a mile away. Such low limits area easily affected by the sounds of nature, plus they require precise measurement that’s much costlier, and they’re impractical to enforce.

Excessive sound is mostly due to individual equipment and individual behavior. The equipment can be effectively regulated by stationary sound testing of vehicles such as SAE J1287 for off-highway motorcycles, J2825 for on-highway motorcycles, J1492 for automobiles, and J2567 for snowmobiles. Some behaviors like “throttle jockeying” can actually be regulated and enforced, but most behaviors are best improved through education from peer groups. The organizations have supported stationary sound testing and education to mitigate excessive sound, and we would gladly help to further resolve noise concerns, especially when they reasonable address it at the individual level rather than assuming that all vehicles are inherently loud. Also electric vehicles are projected to become the most common ones during the life of the BENM RMP.

That said, it’s important to set realistic expectations when planning across 1.36 million acres, as there will always be someone somewhere at some time who would regard a given sound as noise. The DRMP/EIS states “Hopi people believe that the spirits of their ancestors still reside at BENM, and any disruption of peace will disturb them.” It may be feasible to resolve this kind of concern at an archaeological site, and quiet may be fairly certain in portions of BENM such as primitive areas, but significant sounds periodically occur in many other portions (and not only along the highways) without disrupting the vast majority of visitors.

The Organizations caution the Lead Agencies from regulating sound to severely, not just because it’s unwarranted and impractical to enforce, but because the directive is thin. The 2016 proclamation merely mentions “natural quiet” and deafening silence” in a single paragraph, while the 2021 proclamation just mentions “solitude” in Dark Canyon, which is already designated as a wilderness area. Advocates of proclaiming a BENM emphasized healing between peoples, but the designation by executive fiat rather than congress has only caused more division. The lead agencies could moderate the situation by carrying out the proclamation more modestly instead of placing it further out on the proverbial limb.

OHV Area zoning details

The DRMP/EIS fails to justify drastically expanding OHV Closed area zoning. Similar to ROS, OHV Limited zoning does not require a minimum density of routes, and designated routes in OHV Limited zones occupy far less than 1% of the ground. It gives lead agencies flexibility to add a route which, in the case of BENM, would have to meet the threshold of being for the purpose of public safety or protecting monument objects. This threshold is plausible when it comes to major reroutes, e-bike trails, or campground loops to concentrate impacts.

Perhaps the Lead Agencies developed all action alternatives to drastically expand OHV Closed zoning because they assume it won’t be realistic to meet this threshold. In fact the DRMP/EIS states:

Alternatives aimed at increasing motorized access.
Rationale: Several commenters suggested the agencies consider and analyze increasing motorized access in BENM. Such alternatives were not carried forward for detailed analysis because they are inconsistent with management direction in Proclamation 9558, which is incorporated into Proclamation 10285. Specifically, Proclamation 9558 prohibits cross-country motorized vehicle use except for emergency or authorized purposes and prohibits the designation of new roads and trails for motorized vehicle use unless they are for the purposes of public safety or the protection of Monument objects. In other words, the agencies do not have discretion to increase motorized access within the Monument.

Actually the agencies DO have discretion to increase motorized access within the Monument, as the 2016 proclamation clearly allows such increases that are for the purposes of public safety or the protection of monument objects. To claim otherwise and drastically expand OHV Closed zoning is to decide that this threshold won’t be met in the TMP process over the life of the RMP, which is predecisional, plus it hobbles effective management.

One classification where the Lead Agencies would not have discretion to increase motorized access is in lands managed for wilderness characteristics, which is a subset of lands with wilderness characteristics (LWC).  BLM Manual MS-1626, “Travel and Transportation Management” states:

6.5 Travel and Transportation Management within Presidential and Congressional Designations or Similar Allocations

1. 1. BLM Manual 6320 – Management of lands with wilderness characteristics, the following apply:
   2. In lands managed for wilderness characteristics, the BLM will not designate primitive roads and motorized/mechanized trails and will not classify them as assets within lands managed for wilderness characteristics protection in land use plans.

Therefore converting more LWCs to manage for wilderness characteristics would prevent the Lead Agencies from ever adding a route even for the purpose of public safety or protecting monument objects. BENM already includes many areas that are managed for wilderness characteristics, such as natural areas, WSAs, ISAs, and designated wilderness. In the remainder of the monument, somewhat less restrictive management is needed for all kinds of uses that are compatible with monument protection.

What’s more alarming is that at least half of the routes currently designated for motorized use that are in LWCs which would be managed for wilderness characteristics in alternatives D and E are not cherry-stemmed out (i.e. the LWC boundaries are not drawn around the roads), thus it appears that these routes would be closed by alternatives D and E, yet these routes are not even highlighted (let alone analyzed) by the DRMP/EIS. It should clearly and completely address the ramifications of alternatives D and E on each one of these routes.

As with the issue of deciding to manage for wilderness characteristics in LWCs, to expand the OHV Closed zoning, the Lead Agencies would need to do far more analysis than what the DRMP/EIS presents. BLM Manual MS-1626, “Travel and Transportation Management” states:

3.1 Designation of Off-Highway Vehicle Management Areas

The decision-making process used to designate OHV areas must be thoroughly documented in the administrative record, summarized and analyzed in the NEPA document supporting the designation decisions. The BLM must specifically document how it considered and applied the designation criteria in 43 CFR 8342.1 in making OHV area designation decisions (see Section 3.3).

The Lead Agencies have not met any of these requirements, whether in general across the 1.36 million-acre planning area, or specifically at each affected location within the planning area. The DRMP/EIS would preemptively close routes, many routes in the case of alternatives D and E, and each route deserves to be analyzed before being closed. It is not the public’s responsibility to do this analysis but, to illustrate its significance, the Organizations will give you a few examples of such roads.

First are three roads that would actually be closed by every alternative if the GIS data isn’t fixed. In each case, we believe that the route data has been updated to benefit from the accuracy of modern GPS, while the OHV Closed boundaries are still based on older technology (as evidenced by their more broadly-sweeping features), thus the imprecise boundaries inadvertently cross the roads.

A. Winter access road to Beef Basin northwest of Boundary Butte (D1870)

The main road to Beef Basin skirts Horse Mountain, which can be snowy, and an alternative is this primitive road that stays below 8,000′ of elevation while providing view of the mountains above and desert below. The road is regularly used from the east end (first photo below) to the west end (third photo below) except for less than a quarter-mile section in the middle (second photo below) that’s rougher, but even that section has been used many times by two- and four-wheeled vehicles for many decades, and it’s a constructed road the whole way through. If increased use were to increase erosion, the section has plenty of potential for realignment or the installation of drainage structures.

Note:  In addition to the middle of this road being shown as inside of an OHV closed zone in every alternative, the west end of this road is in an LWC that would be managed for wilderness characteristics in alternatives D and E, which would apparently close the road since the LWC boundary isn’t drawn around it.

B. Last 300 yards of Collins Canyon Road (B260)

The last 300 yards of this graded road, from the TLA boundary (first photo below) to the hiking trailhead (second photo below), is also shown as being in an OHV Closed zone in every alternative. In addition to hiking access, the last 300 yards provides mobility-limited visitors with a modest view over Collins Canyon, while the road and parking area don’t intrude the hiking trail.

C. John’s Canyon western overlook road (D0053)

This spur goes from the TLA boundary (first photo below) to a modest overlook of John’s Canyon (second photo below) that also provides primitive camping, yet it’s shown as being inside of an OHV Closed zone in every alternative.

Second are three examples of the many roads that would preemptively be closed by the drastic expansion of OHV Closed zones in Alternative D, as well as apparently being closed by the decision to manage many more LWCs for their wilderness characteristics in alternatives D and E since those LWC boundaries are not drawn around those routes.

D. Mikes Canyon Road (D0004)

This road climbs up the Red House Cliffs (first photo below), where it passes rock towers (second photo below) and then rounds a gap before dropping into Mikes Canyon (third photo below). It’s a wonderful backcountry route that, if use increases, could easily benefit from realignment or the installation of drainage structures.

Note:  There is an LWC boundary paralleling the north side of this road, but it appears to simply separate two different LWCs rather than excluding the road from LWC, thus the decision of alternatives D and E to manage for wilderness characteristics in both of these LWCs would apparently close the road.

E. Northeast Red House Cliffs road (D0036)

This road heads east from Red Canyon Road and traverses the top of Red House Cliffs (first photo below), where it passes an antique truck (second photo below), finally turning north to reach a view of Tables of The Sun (third photo below) offering views in every direction over its four-mile length.

F. John’s Canyon overlook road west of Muley Point (D0046)

This road goes from Muley Point Road to its own overlooks of the San Juan River (first photo below), then to overlooks of John’s Canyon (second photo below), with many remarkable dispersed campsites on slickrock.

Even if the Lead Agencies were to fix GIS data of the OHV Area boundaries in order to keep roads A, B, and C open, the OHV Area boundaries of Alternative D would preemptively close roads B, D, E, and F, while the alternatives D and E decision to manage wilderness characteristics in LWCs would apparently also close roads B, D, E, and F. Again these are just examples of many routes that would be closed by the OHV Area boundaries of Alternative D or the alternatives D and E decision to manage wilderness characteristics in LWCs that don’t cherry-stem the given route. The negative effect of these closures to recreation would be enormous, yet it’s not acknowledged let alone analyzed by the DRMP/EIS, which are fundamental flaws when it comes to planning on public lands.

Alternative A error details

A table and figures of the DRMP/EIS are grossly inaccurate about the no-action alternative, which makes it impossible for the public to understand the changes being proposed, again creating a fundamental flaw when it comes to planning on public lands.

A. Current Recreation Opportunity Spectrum (ROS) zones

The current ROS zones from the 1986 LMP of Manti-La Sal National Forest place the vast majority of the Manti-La Sal National Forest portion of BENM in a motorized class. This fact is plainly reflected in the national forest’s 1986 LMP itself as well as the DLMP from 2023. However the BENM DRMP/EIS erroneously portrays only half of this area to be in a motorized class, and then it proposes the same ROS in all the action alternatives, thereby totally misleading the public into thinking that the proposed ROS zones are currently in place. This inaccuracy is in the following table:

The inaccuracy is also in Figure 2-28:

The interactive map on e-planning is inaccurate in the same way as Figure 2-28.

The same ROS inaccuracy was clearly stated in #8 of the RwR and TPA October 31, 2022 letter, yet the Lead Agencies continued to propagate the inaccuracy in the DRMP/EIS. During the April 23, 2024 public meeting in Blanding, the organizations notified multiple USFS leaders of this inaccuracy and its significance, one of whom acknowledged the inaccuracy of the ROS table and said he was already aware of it. However the Lead Agencies have yet to correct any of their planning documents, and actually later uploaded an ROS poster to e-planning that continues to propagate the inaccuracy. The persistence of the Lead Agencies to inaccurately portray the current ROS over and over suggests a complete disregard for the public to meaningfully participate.

B. Current Travel Management Plan (TMP) in terms of mis-classified routes

Figure 3-40 of the DRMP/EIS inaccurately portrays at least 15 motorized routes in the national forest as being non-motorized. In other words, it should show the routes in black instead of brown. The Organizations have highlighted the 15 routes in green:

This same inaccuracy is found in the “FS BENM Roads Draft” layer of the interactive map on e-planning. In fact the interactive map is worse, as it omits over 40 motorized routes, the same routes highlighted in our next point (C) below.

During the April 23, 2024 public meeting in Blanding, the organizations notified multiple USFS leaders of this inaccuracy and its significance. However the Lead Agencies have yet to correct any of their planning documents.

This inaccuracy should not be dismissed by the fact that a TMP will be developed later. Inaccurately portraying at least 15 motorized routes as being non-motorized hamper the public’s ability to meaningfully participate in RMP planning now. For example, USFS Trail 203 (which is the northernmost of the 15 motorized routes on Heifer Mesa) is in an Inventoried Roadless Area (IRA), and accurately portraying the route as open to motorized use could inform the public’s comments on the IRA aspects of the DRMP/EIS.

C. Current Travel Management Plan (TMP) in terms of missing routes

Figures 2-38 through 2-42 of the DRMP/EIS inaccurately omit over 40 motorized routes. The organizations have highlighted the 40 routes in green:

This same inaccuracy is found in the corresponding layers of the interactive map on e-planning (“BENM Routes in OHV Areas Alt A Draft,” “…Alt B Draft,” “…Alt C Draft,” “…Alt D Draft,” and “…Alt E Draft”).

During the April 23, 2024 public meeting in Blanding, the organizations notified multiple USFS leaders of this inaccuracy and its significance. However the Lead Agencies have yet to correct any of their planning documents.

This inaccuracy should not be dismissed by the fact that the missing routes would not be closed by the proposed OHV Area designations. Their omission from the five figures does hamper the public’s ability to meaningfully participate in RMP planning now. For example, in all of the action alternatives (B through E), the proposed OHV Closed boundaries go right up to the edge of many of these omitted routes. The presence of these routes could inform the public’s comments on the proposed OHV Closed boundaries given the potential future needs such as rerouting.

All three of these inaccuracies mask the major opportunities for motorized trail riding that have been in BENM for generations, many of which RwR has maintained, and many of which would be greatly affected by multiple geographic designations. Given these inaccuracies, plus the lack of acknowledging and analyzing LWC and OHV-Area ramifications, plus the lack of coordination (with the state, local government, and public) to formulate the draft RMP and identify all the monument objects or even define new concepts such as cultural landscapes, the Lead Agencies should start from square one with planning. In many ways, a more thorough process is likely to conclude that the current BLM and USFS rules and regulations have been adequate in most cases. What’s lacking is resources to enforce rules, educate visitors, maintain trails, and other management tools that are tried and true. There’s great potential for more resources and grassroots support so long as planners honor the tradition of diverse recreation from Mexican Hat to nearly Moab across this ninety-mile landscape.

Bureau of Land Management
Moab Field Office
82 East Dogwood
Moab, Utah 84532

RE: Dolores River Travel Management Plan (DOI-BLM-UT-Y010-2024-0029-EA)

Dear Dolores TMP Project Manager:

Please accept this correspondence from the above organizations as our official comments regarding the Dolores River (DR) Travel Management Plan (TMP) that was opened for scoping by the Bureau of Land Management (BLM).

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, including some within the DR planning area, 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 DR planning area is very important for motorized trail riding and driving. Although it has less use than the Labyrinth Rims area, DR includes popular routes such as Top of The World and Kokopelli’s Trail, and the planning area provides a more backcountry experience on primitive routes with great views from both sides of the Dolores River. It will be important to plan thoroughly, including a complete inventory of routes and analysis of their relevant and associated socio-economic value, in order to sustain diverse recreational opportunities.

3. Consider the context of public lands surrounding the planning area.

The forthcoming Environmental Assessment (EA) should consider at the landscape level the many opportunities for solitude and non-motorized recreation that already exist throughout the Moab Field Office planning area, before considering whether any such additional areas should be designated within the DR planning area at the expense of existing motorized roads and trails already there. Immediately north of the planning area is the Black Canyon Wilderness and Westwater Canyon WSA as well as being the Westwater Canyon River Use and Hiking Area. Immediately west of the planning area is another non-motorized focus area, the Richardson Amphitheater/Castle Rock Hiking and Climbing Area.

4. The DR TMP planning process should begin with a complete inventory of all existing routes.

The 2017 court settlement agreement that directs the BLM to review its DR TMP also states:

Public scoping. At the initiation of the travel planning scoping period for a new TMP, BLM will make available to the public and stakeholders maps of all BLM-inventoried routes being considered for designation under 43 C.F.R. § 8342.1. Such route inventory maps will include spur routes leading to Utah State Institutional Trust lands, facilities, campsites, and other points of interest, which may include overlooks and natural and historic features.

43 C.F.R. § 8342.1 addresses the designation process and places no limits on the inventory process, so the 2017 settlement clearly directs the BLM’s scoping to provide maps of all BLM-inventoried routes. Obviously BLM-inventoried routes includes all routes in the No Action alternative of the 2008 FEIS for the Moab Field Office RMP and TMP. However it should also include routes that were missed at that time, as the BLM didn’t do its own thorough route inventory, and instead relied on Grand County’s inventory that was funded by the State of Utah. Generally Grand County did a good job, but the county chose to exclude many routes, including motorized singletrack or ATV trails and wash bottoms with no evidence of mechanized construction. Further, particularly on the east side of the Dolores River that’s inaccessible from Moab for most of the year, Grand County simply missed routes despite that they’re full-size vehicle routes outside of wash bottoms. Some of the missed routes may not be used or not have an obvious purpose and need, such as some of the many seismic lines on Dolores Point. However other missed routes absolutely are used, provide great value, are viable to be managed sustainably, and in any case deserve to be acknowledged and analyzed by the forthcoming EA. Sound decisions depend on a thorough appraisal of the current conditions, which is a tenant of NEPA, and a complete route inventory is required by the 2017 settlement.

5. Examples of missing routes

Although it is not the Organizations’ responsibility to provide a complete route inventory, we’ll provide a couple examples of routes missing from your scoping inventory map that were in the No Action alternative of the 2008 FEIS, and a couple examples of routes missing from your scoping inventory map that were also missing from the No Action alternative of the 2008 FEIS. The following examples are listed from south to north, with UTM coordinates in NAD 83 of their starting and ending points, and their locations between the ends clearly visible on satellite images:

A. Southwest of Lumsden Canyon
starting point 668239.437, 4278359.787
ending point 668870.302, 4278376.770

This primitive road is missing from the scoping inventory map, but was in the No Action alternative of the 2008 FEIS. The entire route receives periodic use, is designated open for motorized use by the BLM on the Colorado side of the state line, and provides significant connectivity.

B. West Dolores Point loop
starting point 668725.521, 4281588.955
ending point 668788.136, 4282182.548

This primitive road is missing from the scoping inventory map, but was in the No Action alternative of the 2008 FEIS. The entire route receives periodic use, is designated open for motorized use by the BLM on the Colorado side of the state line, and provides connectivity for a large loop that’s of tremendous value as it flanks Dolores Point.

C. Southwest Scharf Mesa
starting point 657849.192, 4296575.11
ending point 656125.386, 4297459.180

This primitive road is missing from the scoping inventory map, and was missing from the No Action alternative of the 2008 FEIS, but has existed for many decades. The entire route receives periodic use and has significant recreational value as it flanks Scharf Mesa, providing unique glimpses of the Dolores River canyon.

D. Scharf Mesa – Buckhorn Mesa link
starting point 656854.700, 4300208.870
ending point 658327.180, 4303146.738

This primitive road is missing from the scoping inventory map, and was missing from the No Action alternative of the 2008 FEIS, but has existed for many decades. In fact, the route is shown as a “4WD trail” on USGS topographic maps. The entire route receives periodic use and has significant recreational value as it links Scharf Mesa and Buckhorn Mesa, providing north-south connectivity that’s rare on the north side of the Dolores River other than the graded roads.

Again, there are many other important routes missing from the scoping inventory map, but these four examples illustrate the fact that a lot more bona fide routes are missing than seismic exploration lines which were presumably deemed redundant.

6. Starting with a complete route inventory is also needed to meet the intent of revisiting the 2008 TMP decision.

The 2017 court settlement agreement states that the existing TMPs will remain in effect until the BLM issues new TMPs for the twelve Travel Management Areas (TMAs). However it does not state that the existing TMPs will become the baseline for analysis of the new TMPs. Since the 2017 settlement essentially directs the BLM to revisit twelve parts of the 2008 TMPs (i.e. the twelve TMAs), the appropriate baseline would be the one that was used to develop the 2008 TMPs in the first place, which is the No Action alternative of the 2008 FEIS. In other words, to revisit the twelve parts of the 2008 TMPs, we must consider the motorized-travel policies that existed prior to the 2008 RODs.

To truly revisit the Dolores River part of the 2008 TMP decision, the forthcoming EA should provide for one alternative that includes all the existing routes. That would amply show how much minimization the BLM has already done through the routes closed as part of the 2008 TMP decision.

Further, to truly revisit the Dolores River part of the 2008 TMP decision, the forthcoming EA should unambiguously acknowledge that most of the planning area was open to cross-country travel by motor vehicle until 2008. Even if all the existing routes were designated open, it would still occupy less than 1% of the acreage, thus any TMP will greatly reduce motorized access and any adverse impacts from the status quo prior to the 2008 decision.

7. The route inventory shouldn’t exclude routes merely because they appear to be partially “reclaimed” or difficult to follow.

The lack of on-the-ground appearance of some routes doesn’t justify excluding them from a route inventory because it doesn’t mean that:

1. The routes have received no OHV use in recent years (as some terrain is prone to quickly disguising evidence of use),
2. The routes have no current value for OHV use (as a lack of use could be due to a lack of wayfinding signs),
3. The routes have no potential value for OHV use (as the amount and types of recreational use increases), or
4. Use of the routes would cause significant adverse impacts (as some routes are essentially innocuous, especially when they receive a modicum of management like basic maintenance and user education, which can be supported through resources such as OHV groups and the State of Utah.

In fact, often the more primitive routes are quite manageable because basic measures can be taken before any major increase of use, and often they are of higher quality for OHV riding. Most OHV riders favor remote settings and trail characteristics that offer more challenge, a sense of flow, and connection with the surroundings.

8. At least one alternative must propose to open many of the currently-inventoried routes in order to provide an adequate range of alternatives.

Thorough and adequate planning depends on considering a diverse range of alternatives and, if it wouldn’t be unreasonable to designate a given route open, then it should be open in at least one of the alternatives.

9. The EA’s decision matrix should put the onus on requiring justification before closing any existing route, rather than requiring justification to keep an existing route open.

Leaving a route open would not only follow the status quo of management prior to the 2008 TMP decision, it would carry out the BLM’s mission of multiple use provided that the route can be used sustainably. Any resource-conflict concerns should consider the full array of options to mitigate those conflicts. Route closure is often not needed or even the most effective solution. Alternatives include educating visitors how and why to practice minimum-impact guidelines, trail work (e.g. marking the trail / blocking off the sides / stabilizing the tread in order to prevent erosion and discourage bypassing), and rerouting the trail to avoid sensitive sites altogether. The EA should identify these solutions and set a course to pursue them rather than unnecessarily closing a route even temporarily. Route closures tend to have their own costs in terms of public relations, noncompliance, and the displacement of negative impacts. They should be done only as a last resort after fully pursuing less-restrictive measures.

10. When developing TMP alternatives, the 2017 settlement does NOT require an alternative to close routes in lands with wilderness characteristics, only in natural areas and WSAs.

The 2017 court settlement agreement does NOT require an alternative to close routes in LWCs, only in the subset of LWCs that are “natural areas” (which is an RMP decision) as well as WSAs, as indicated by the very heading of that part of the 2017 settlement:

f. Alternative route networks within WSAs and Natural Areas.

For routes or portions thereof that are located on public land within wilderness study areas (“WSAs”) and Natural Areas, BLM will analyze in the NEPA document at least one alternative route network that would enhance BLM-inventoried wilderness characteristics by designating the routes or the relevant portions thereof as closed to ORV use, unless ORV use of the route is authorized by an existing right-of-way or other BLM authorization or by law. To the extent ORV use of a route is authorized, this alternative route network will include measures limiting ORV use to enhance BLM-inventoried wilderness characteristics to the greatest extent possible consistent with applicable laws, regulations, or existing right-of-way authorizations.

Therefore your forthcoming draft alternatives should not propose to close any routes outside of natural areas or WSAs for the purpose of minimizing impacts to wilderness characteristics (WC).

11. When making the TMP final decision, impacts to wilderness characteristics should not be minimized outside of areas that the RMP directs to manage for wilderness characteristics.

Through approving the 2008 Moab RMP, the BLM decided to manage for WC in the Beaver Creek natural area and decided not to manage for WC anywhere else in the DR planning area. Outside of the Beaver Creek natural area, the BLM should not restrict recreation for the purpose of minimizing impacts to WC, nor should it manufacture other purposes. Rather the BLM should comply with the RMP decision to not manage for WC.

12. Within the Beaver Creek natural area, the EA should recognize that impacts to WC have already been minimized.

Within natural areas such as Beaver Creek, the BLM is not required to further reduce any adverse impacts to WC, and it has already minimized such impacts through the 2008 TMP that closed many valuable routes, some of which weren’t even inventoried. For example, motorcyclists used to ride down Beaver Creek itself, and the 2008 TMP eliminated this exceptional recreation opportunity among others. Any routes within natural areas left open by the 2008 TMP were determined not to impair WC as they were deemed “ways” that are maintained without mechanized equipment. Such routes tend to be particularly valuable for motorized trail enthusiasts due to their more primitive character, and they are worthy of conservation in their own right.

13. The EA should be scoped to consider the important socio-economic resource value of motorized recreation.

Motorized recreation is without question a major component of tourism industries from Moab to Grand Junction, and OHV riders tend to spend more per day than other recreationists. The forthcoming EA must utilize best available data, such as that from the Bureau of Economic Analysis regarding outdoor recreation and that funded by Colorado Parks Wildlife regarding OHV recreation.

The EA should not repeat the Labyrinth Rims TMP’s false assumption that only 6% of visitation in the planning area is motorized trail use, for which the Labyrinth Rims TMP cited two erroneous sources. The first source is a 2007 survey that was intended to test the accuracy of a methodology that’s new to BLM lands. The methodology depends on finding recreationists during their visit to BLM lands and persuading them to take a long survey. Motorized trail use tends to be more dispersed, making those participants less likely to be reached, let alone to convince them to fill out a survey instead of continuing on their ride or drive. The second source is the Manti-La Sal National Forest draft plan, which doesn’t actually state that motorized trail use is 6% of visitation, but rather states that “Motorized trail activity in general is reported as a main activity for approximately 20 percent of all visitors to the Forest in 2016 (U.S. Department of Agriculture, Forest Service, 2017) and 32 percent in 2021 (U.S. Department of Agriculture, Forest Service, 2023).”

14. The EA should be scoped to consider the full consequences of route closure, including a loss of carrying capacity.

The Labyrinth Rims TMP claimed that closing 317 miles of motorized routes wouldn’t harm casual or commercial use because of miles of routes are still open in that planning area, and thousands of miles are open in the Moab Field Office. However many of the remaining routes are graded roads or lack the quality, connectivity, or variety sought by almost any trail enthusiast. To the extent that good substitute routes still exist, the closure of many miles still greatly reduces the given trail system’s carrying capacity. Even if high use levels would never occur on every single route, lesser-used routes are quite valuable to a segment of motorized recreationists. The fact that some routes are spared from closure is of little consolation for the mileage lost. Closing many miles of route would be a substantial loss for the quality of life and livelihood of many motorized trail enthusiasts.

15. The EA should be scoped to consider the full consequences of route closure, including non-motorized use of motorized routes.

Motorized routes provide access for everything from picnicking to camping, hiking to biking, and photography to base jumping just to name a few. For another thing, most of the routes are not causing the degree of conflict that’s claimed by groups seeking to vastly expand wilderness designation across public lands. Spur roads to overlooks rarely bother anyone who might be hundreds of feet below them, and each overlook is separated by miles of rim that has no motorized route. Non-motorized recreationists benefit from trails, both motorized and non-motorized. More non-motorized trails can be established, in certain instances by converting an old road (which should seek state approval), but in most cases by designating a new trail. Likewise, wildlife often benefits from trails, as they streamline human activity, and the vast majority of detrimental routes were already closed by the 2008 TMP.

16. The EA should be scoped to consider the full consequences of route closure, including a likely decrease compliance and increase the burden of maintenance.

The Organizations don’t condone noncompliance, but closing many more miles of route would likely make it more prevalent. As the TMP becomes austere, frustrated recreationists would be more tempted to use the closed routes, make new routes, or simply travel cross-country. This disruption of managed use patterns would make it harder for non-motorized recreationists and wildlife to predict where motorized use will occur, thus negatively impacting these resources. Closing many more miles of route would also likely increase braiding of the remaining routes due to increased use levels leading to increased traffic density, passing between vehicles, and potential soil erosion leading to increased ledging and rutting of the trail tread. Confining a given amount of use to a much smaller network of routes is more expensive because whatever savings might result from fewer signs are quickly lost from increased tread work that’s more expensive than signs, not to mention the cost of getting people to stop using the closed routes.

17. The EA should be scoped to consider the full consequences of route closure, including a likely increase crowding and conflicts.

Closing many more miles of route would obviously increase use of the remaining routes, turning low-use routes into moderate-use routes, moderate-use routes into high-use routes, and high-use routes into exceptionally high-use routes. Perceptions of crowding would increase on routes of all these use levels, which increases the potential for conflict. Motorized recreationists may feel entitled to use the remaining routes more exclusively, and may feel animosity toward the non-motorized recreationists for the closures, which erodes goodwill. As with many other negative consequences, the conflict becomes a self-fulfilling prophecy when closures are excessive, as the closures are often driven by ideology more than a focus on actually resolving issues.

18. The EA should be scoped to consider the full consequences of route closure, including a likely reduction in the stewardship capacity of motorized recreationists.

Closing many more routes would lower the morale of OHV groups partnering with the BLM, and it would hamper volunteer recruitment and retention. While most of us still want to contribute toward trail work and education projects, we now have less capacity to do so, as more of our bandwidth is absorbed by advocating against excessive closures. When it comes to some of these closures, we feel compelled to protect our investments by challenging closures, which costs a lot of time and money. Resources that OHV groups, businesses, and individual enthusiasts put toward advocacy of access can’t go to stewardship projects. Likewise the land management agency budgets have increasingly gone to legal defense instead of actually working on the land. Similarly the state could spend even more to assist the federal agencies if it weren’t so compelled to challenge them. None of these trends bode well for the actual conservation of resources in the long run.

19. The EA should be scoped to consider emerging technologies such as electric vehicles and electric bicycles.

Within the next decade, the majority of vehicle and bicycle sales may become electric as opposed to an internal-combustion engine vehicle or traditional bicycle, which would greatly reduce the sound produced by the use of motorized trails. Electric vehicles are already available commercially in the bicycle, motorcycle, ATV, UTV, and full-size markets, and electric is already the fastest-growing segment.

20. Conclusion

Rather than regarding the DR TMP as another generation of travel planning (yet with self-imposed limitations such as excluding all route additions from any consideration), the DR TMP should be regarded as a re-evaluation of the decisions made in 2008, thus accounting for and analyzing changes to the previous conditions and rules that were in place. Starting with a complete route inventory, the forthcoming EA should recognize the importance of motorized trail-based recreation and of each route in the planning area, clearly stating any resource concerns and favoring mitigation measures before closure would be deemed necessary. This process is justified given the importance of routes on both sides of the Dolores River.

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

Rio Grande National Forest
Att: Winter Planning Team
Submitted Via Portal only

Re: Winter Suitability/OSV Planning

Dear Planning Team Members;

Please accept this correspondence as the input of the motorized community with regard to the public comments on the proposed OSV suitability mapping that has been provided. There is a long history of winter recreation on the Forest without conflict between uses and this has to be the starting point for analysis. We are aware that recently planning efforts on the Forest has resulted in significant asserted conflict on issues, but this has not reflected the historical level of challenges facing the Forest. The motorized community has enjoyed a long partnership with the Forest and has always enjoyed proactively addressing challenges on the forest in a collaborative manner.

It has been the Organizations experience that while USFS planners have effectively managed OSV recreation for decades without resource impacts, they are also hesitant to rely on this successful management history as the basis for future planning.  We hope the information below supplements this generally accepted knowledge with a high level of scientific certainty and encourages managers to avoid large scale changes to OSV management in the hope of avoiding possible impacts to resources or a lack of scientific certainty around the commonly understood conclusions that managers have relied on for decades in OSV management.

The Organizations are aware the scale of information and scope of information provided on these issues may be much larger than expected. This response is being provided in the hope of streamlining and speeding up the planning process as much as possible. While there is a large amount of information provided on these issues, we have significantly more information on many of these issues. There are also many topics we did not provide information on as we are hoping these are comparatively minor in scope. We hope this information triggers an ongoing dialogue with the forest on issues they are encountering in the Planning process so these resources can be effectively used.  We have devoted significant resources towards avoiding overly sensational resources or information that lacks basic credibility.  In addition to this resource specific information, we have also provided information we believe is relevant to planning, such as the financial sustainability of our clubs grooming support through the CPW grooming program, which we are in the process of updating currently.  We hope these efforts and information provide an accurate picture and vision for the winter grooming efforts of our clubs, as this is the primary method all public users rely on to access the winter backcountry on the forest.

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.”

2a. Our partnership with the Rio Grande NF.

Our Organizational representatives have been active participants in winter travel management decisions and planning across the western United States, including the 5 forests in California that were forced to review their winter travel decisions after the release of the 2012 Planning Rule.  As a result of the years of involvement in partnership with the USFS addressing winter travel management issues, we have developed a large database of information.  Our partnerships with the Rio Grande NF extend far beyond the recent USFS efforts addressing winter travel, as the grooming clubs on the Rio Grande NF were some of the oldest clubs in the State and were some of the first to embark on a public benefit grooming effort that they funded.

The Colorado Snowmobile Association has partnered with several local snowmobile clubs on the RGNF to provide hundreds of miles of groomed winter access to the Forest for decades for all type of uses to the public free of charge. These grooming efforts have been provided through special recreation permits issued by the USFS and have reflected the partnerships with users that the USFS is now moving towards as their management model more generally.   These local club partners include the South Fork Powder Busters, Creede Snow Country Explorers, Wolf Creek Trailblazers out of Pagosa and Lake City’s Continental Divide Snowmobile Club. The hundreds of miles of groomed winter routes on the Forest provided by these Clubs support motorized recreation, cross country skiing, snowshoeing, ice fishing, dog sledding and many other forms of recreation.  This groomed network also provides consistent and critical access for search and rescue teams, various 911 infrastructure such as radio repeaters, administrative access for efforts such as wildlife counts and private lands access.

The consistency of our efforts in providing public access for a wide range of usages stands in stark contrast to the trail maintenance provided to the public by some permitees on the Forest, who only chose to maintain their routes when it suits their own needs. We do not believe it is appropriate to discuss this group by name but we are also confident managers will not need us to clarify the group at issue. We are aware that both managers and representatives of our clubs have gotten complaints from the public who erroneously believe the USFS or our clubs are responsible for maintaining these routes,  when these routes are not maintained by either group.  When there is snow that is easier for the group to maintain, routes on the Forest are often ignored until the lower more easily accessible routes are no longer holding snow.  Too often these routes are simply treated as a private resource for that Organizations interests and any impacts from other uses is seen as something other than a reason to regroom the routes. This is a stark difference when compared to the efforts of CSA clubs and the motorized community that works consistently to provide opportunities for all and funding for the USFS to hire staff and buy equipment for all seasons.

Our recent winter partnerships with USFS  extend far beyond grooming trails.  Our efforts have included expansion  and improvement of the Tucker Ponds parking area.  CSA is also proud to partner with local interests such as Mountain Skillz, who provides a wide range of educational and guiding services, globally recognized avalanche training and serves as a hugely positive role model for all forms of recreation.  Our summer based partnerships have included funding to support good management crews on the Divide and District and also a heavy maintenance crew on the Divide RD.  CSA in partnership with the USFS and  Tylers Backcountry Awareness, our club based in Fort Collins dedicated to avalanche safety, has placed almost three dozen avalanche beacon checkpoints throughout the western United States.  These units are funded by local partners and maintained throughout the season by local snowmobile clubs. Several of these checkpoints are on the Wolf Creek Pass planning area and help remind all users of the winter backcountry to turn on their avalanche beacons and remind them that batteries in these units need to be periodically replaced.  These signs have evolved periodically but generally are represented by the following photo.

It has been an interesting experience to discuss these signs as many of the public simply do not understand how these signs were developed or who is maintaining these signs. We hope the presence of these electronic checkpoints remind all users of the critical need to check their beacon and other avalanche equipment every time they go in to the winter backcountry. We have partnered with several nonmotorized groups to provide this type of resource in other areas of the state as well.

The motorized community believes our partnership with managers is somewhat unique in the Colorado, as we attempt to work to resolve the ever evolving and changing challenges facing public lands in a proactive and effective manner.  This stands in stark contrast to many other users and interests who simply seek to create new problems and challenges on public lands that will force closures or will result in opportunities for a consistently reducing portion of the public. This difference is profound in its application as the Colorado motorized community, in partnership with CPW and the programs we have voluntarily created is seeking to address issues like how to provide additional funding to the forest for basic operations.  We are working hard to address issues like making positions more appealing for new hires, moving from a seasonally based good management crew to a permanent seasonal model of hiring, streamlining saw training, providing motorcycle certifications and trail trainings for the seasonals that the forest hires through the OHV program.

CSA is aware that many of these examples are  summer based, it is highly relevant as this same mentality is hugely present in the winter  program as often in other states the USFS is largely performing grooming of winter routes, that may be supplemented with volunteers. The Colorado model is foundationally different as the clubs own and operate the groomers operated under special use permits. Last year our member clubs provided more than 20,000 volunteer hours to support grooming on USFS lands across the State  in addition to the almost $2 million in direct funding that our voluntary registration program provides for winter grooming operations. While the CPW program provides significant funding, CSA and our clubs provide significant additional funding and resources, such as the purchase of annual liability insurance for grooming programs throughout the state.  Last year this insurance cost more than $50k to purchase for the year.  This is a cost that can be easily overlooked and is incurred before a single groomer starts or fuel is purchased to operate this equipment.

In Colorado, winter grooming is almost  entirely performed by CSA clubs which is a profound difference from most other states and one we hope is providing additional resources to the Forest to allow them to perform basic operations.  We believe this type of partnership is easily overlooked and with many new faces on the forest, may not be well known.  We are also aware of the rather grim nature of the agency operational budgets currently being faced and the even more grim outlook being faced moving forward.  We are hoping that the large amount of information we are providing in these comments will allow possible issues to be quickly addressed with high quality information and effective winter travel plan. Efficient development of an effective plan will allow limited resources to be used for active management of resources on the Forest.

2b. Our 50 year partnership with CPW.

We are providing this section of our comments to allow the planning team to understand where our partnership is currently and where we are hoping to go with the partnership over the life of the winter travel plan being developed. CSA and our member clubs have partnered with CPW for more than 50 years for the operation of the winter grooming program.  CSA and CPW recently secured passage of legislation to clarify the need for out of state residents to obtain a permit for use of a snowmobile in Colorado and that the $.25 Search and Rescue surcharge was required on the sale of all permits. [1] This legislation requires the out of state permit, made mandatory again by SB24-56, be set by the CPW commission by January 1, 2025.  We are also working with CPW to increase the snowmobile registration and permit fees within this timeline  to provide more funding to support grooming and improvement of other infrastructure such as parking lots and toilets at winter trail heads. CSA has supported moving the registration/permit fee  from the current level of $30 to a $50 annual cost.  This will bring us into alignment with most states around Colorado.  We hope that this new funding will be an important resource for the winter community moving forward and we believe the health of this partnership and new funding streams to support efforts on the RGNF that we provide to the public free of charge is an important component of the success of this planning effort.

Our partnership with CPW extends beyond the operation of the winter grooming program.  CSA has been working with CPW to develop winter educational materials on the Colorado Trail Explorer (COTREX) platform. We have worked with CPW to accurately inventory existing groomed routes and provide accurate snowfall information in various areas of the State. We are also working to make real time avalanche forecast information available on COTREX platform. We hope this information provides safety to all users. CSA is also aware that CPW administrative funds created through the snowmobile registration program also supports the Winter Skills training efforts (WISTA) that CPW has run for years.  WISTA training events allow basic education of CPW and USFS staff to obtain basic training on  winter survival, the operation of snowmobiles in a wide range of conditions and teach them how to recover snowmobiles when they become stuck.

3. Winter travel triggers

The Organizations were active participants in the development of the winter travel rule nationally and support the requirement of sufficient snow for operation of a snowmobile that the rule provides.  While we are aware that sufficient snow has questions, it is superior to other tools we reviewed.  In our opinion, hard start and stop dates are often unrelated to conditions on the ground.  This disconnect results in a double loss of opportunity for our community as any early snow cannot be ridden as the snowfall has occurred before the start date for winter travel.  This is a lost opportunity for our community, which has occurred on the planning area on many years. If there is no snow on the start date for winter travel that is applied, we still cannot ride as there is no snow.  Again, this is another lost opportunity.

Candidly, CSA believes that the dates that have been relied on for many winter travel plans are the result of other management models being poorly applied to winter travel management issues, than a reasonable resolution of issues facing winter travel. Hunting seasons are based on dates, which resulted in seasonal closures for OHV usage. OHV management guided a lot of winter travel decisions.  This process is understandable in how and why it developed but also is probably a model that really does not relate well to winter travel decisions and recreational experiences. The Organizations would also urge the office to avoid novel standards, such as use of a minimum altitude, as was attempted on several forests in California.  These efforts created more issues than they resolved.

The use of snow depth as a trigger for starting winter travel management decisions allows for more management flexibility to address local access improvements. The Organizations  support lower snow depths for the use of roads for OSV travel when compared to off trail or cross country usage. USFS roads or improved trails are hardened for the use of wheeled vehicles, meaning low pressure vehicles such as snowmobiles, pose little risk of damage to the surface of the roads.  This means there is less snow needed to protect these surfaces. These lower snow depth requirements for the use roads also provide an important opportunity for the snowmobile community.  Many riders will seek out roads with minimal amounts of snow early in the year to confirm their snowmobile is mechanically reliable and ready for the season.

Riding in conditions such as this allow our members to ensure that mice have not eaten wiring, fuel has not gone bad, drive belts have not hardened in the summer heat, miscellaneous important bolts have not worked loose in storage or spark plugs need to be changed.  These conclusions can be reached and resolved quickly under these conditions. It is a lot easier to address these issues on a road with minimal snow when compared to more remote areas that could have feet of snow later in the year. It is not out of the realm of possibility that if issues such as these are encountered under the wrong conditions, this could result in a call to search and rescue, which only taxes exceptionally limited management resources even further.  This is an important opportunity for our members who can later enjoy the rest of the riding season with comparable confidence that their equipment will function reasonably well. The need for sufficient snow in these situations is basically self-enforcing as all sleds manufactured in the last decade or more are equipped with an automatic shut off feature if the machine tried to overheat. The machine simply shuts off and you wait for it to cool if there is not enough snow.

4(a) Snow depth as a trigger for winter travel decisions.

We support the flexibility provided in the Proposal on measurement of snow depth and when usage is allowed in relation to snow depths.[2] Measurements of snow depth has proven to be one of the major challenges we have encountered in developing winter travel plans on other forests that are using this standard. The larger amounts of flexibility to address changing snow depth is vigorously supported by our Organizations.  Often the Rio Grande receives such immense depths of snowfall to make this a minor concern for most of the season but we are compelled to address this.

While the RGNF received large amounts of snow, understanding the behavior of snow under a wide range of mechanical and natural processes is important to understanding the decisions being made. Based on our experiences with winter planning on other forests throughout the region, we are aware that the behavior of snow under a wide range of conditions has proven to be a major planning issue for certain interests. These analysis seem to always start from an erroneous assumption that no one has researched the compaction and behavior of snow, both naturally and as a result of outside factors.  This simply could not be further from the truth as numerous highly credible organizations have devoted large amounts of research to snow properties and behavior including the avalanche research community, land managers, the US military and private industry.

The mechanical properties of snow and the  behavior of snow  under a wide range of natural and manmade forces has been studied by the Army Corp of Engineers since the mid 1940’s. This research was performed by their Cold Regions Research and Engineering Laboratory. (“CREEL”).[3] A large amount of this information was deemed classified and was outside the public purview, but this information recently has been declassified and available for public consumption. The development of this information appears to have been driven by many factors, which have evolved over time.  In the 1940’s through the 1980’s this information was developed for national defense purposes and focused on the ability to traverse snow effectively and the development of winter roads to supply remote outposts to defend the country from Arctic invasions through Alaska.   In the 1990’s to current, this information was developed to facilitate exploration of the Antarctic Continent and involved targeted research around landing loaded transport planes on snow runways in Antarctica. Most recently the research of snow behavior has targeted the development and operation of autonomous vehicle systems and understanding the consistency of snow from season to season.  Much of this newer research from the Army Corps of Engineers has been performed in Colorado on forests immediately adjacent to the Rio Grande NF, making the conclusions highly relevant to the Rio Grande Planning efforts.

The Organizations have also included extensive additional research around the behavior of various types of snow under a range of forces that roughly falls into  four general categories.  These four categories are snow compacted by man; 2.  Snow compacted by natural forces; 3. Uncompacted snow subjected to high pressure vehicles; and 4.  Uncompacted snow subjected to low pressure vehicles.  We hope this new information is helpful.

The Organizations have investigated the wide-ranging scientific analysis that has been previously conducted regarding the application of force to snow in both an uncompacted and compacted nature. While this process has been long and costly to undertake, this research has also been highly fruitful as it yielded a large body of work from the Army Corp of Engineers regarding activities they have been conducting in the Antarctic continent since the 1940’s.^[4] It is significant to note that while the research methodology and management standards have dramatically evolved over the life of this research, the basic conclusions have remained highly consistent over time, mainly that snow is a highly effective buffer of force. Unfortunately, snowmobiles were found early in research process to not meet the purpose and need of the project due to the inability of early snowmobiles to carry large amounts of cargo, inability to start in exceptionally low temperatures, and that sleds were generally unstable. ^[5] As a result, this research can provide a lot of general information of varying relevance but cannot directly answer the questions around winter travel of OSVs.   Researchers have also come to embrace newer snowmobiles as part of the management and operational process.

The value and credibility of much of the Army Corp work and information to the US Government cannot be overstated as much of the information was deemed to be “CLASSIFIED” when it was developed in the 1940s and 1950’s^[6] and the classification of this research continued into the 1980’s.  Clearly if there were concerns about the basic accuracy or integrity of the information such a determination would not be warranted.  Much of the research and activity on the Antarctic Continent has been the subject of similar or higher levels of conflict and scrutiny as USFS OSV planning efforts have been, again speaking to the veracity of any of the conclusions reached. It is also important to note that while this research has been occurring for more than 75 years, there has been little question or controversy around the scientific method used to reach the conclusions regarding groomed snow or the conclusions regarding the ability of groomed snow to absorb force. After being declassified, much of this information has been subjected to additional rounds of publication and review.

Prior to addressing the conclusions of this research, the Organizations believe it is critically important for USFS managers to understand the strict management guidelines in place for any activity on the Antarctica Continent and to recognize that any actions in Antarctica are managed to a “zero impacts” standard for activity.  This is far stricter when compared to the multiple use management requirements that are the management goals and objectives of the USFS.  Pursuant to paragraph 1 of Article 3 of the 1959 Antarctic Treaty as amended^[7] (Hereinafter referred to as “The Treaty”) all actions on the Antarctic Continent are subject to the following management standard:

“The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.”

The remainder of Article 3 of the Treaty provides a detailed process to apply the zero-impact standard to the wide range of actions occurring on the Antarctic Continent.  It is also significant to note that pursuant to Article 8 of the Treaty, all actions on the continent are fully subject to NEPA planning requirements to insure there are zero resource impacts to the Antarctic Continent. As a result, any actions that are taken on the Antarctic Continent are fully subject to NEPA requirements and are managed to a much stricter zero impacts standard than USFS efforts multiple use requirements for OSV.  Again this provides strong indications of reliability for these efforts.

In the following portions of these comments, the Organizations are not attempting to provide a complete review of the Army Corp of Engineers research, as such documentation would necessitate the use of a large capacity jump drive.  Rather the Organizations are attempting to summarize the most up to date information in particular areas or subjects. Much of the Army Corp of Engineers research efforts centered around the operation of high-pressure vehicles on snow, such as large military transport planes and transport vans as the cost-effective movement of supplies and other resources needed for Antarctic research has been a significant hurdle for researchers. Army Corps research on the ability of compacted snow to provide a suitable landing surface for a wheeled C141 transport plane provided the following conclusions:

“Present studies indicate that this type of processing is needed for only the top 25 cm of a cold, dry processed base course in order to land wheeled C141 and other similar large whether or not an additive such as sawdust is really needed for the base course. Depth processing the snow with a snow miller, in combination with water or heat injection (or dynamic compaction of the top layer), may be adequate.”^[8]

Early research centered on the use of bulldozers, road graders, wheel loaders and other large construction equipment to prepare these runways. Subsequent research performed by the Army Corp concluded that snow compacted with the utilization of snow grooming equipment, which is almost identical to the equipment currently used on the RGNF  and throughout the country for preparation of snowmobile trails, was the most cost-effective manner to prepare compacted snow.  The subsequent research by the Army Corps provided significantly greater detail regarding the levels of force being applied to the snow as part of the landing of wheeled C-130 and C-141 aircraft on the prepared snow, which are as follows:

“For a snow road or a snow runway to be feasible, a method of snow processing is needed such that the resulting snow pavement attains a strength that can support tire pressures in the range of 690kPA.  Most cargo-carrying vehicles can easily be equipped to operate with tire pressures at or below 690 kPa and the C130 Hercules tire pressures normally ranges from 550 kPa to 690 kPa.  Ideally, a snow strength that could support r1380 kPa would be desirable since that would allow the operation of essentially any conventional surface vehicle or cargo plane.”^[9]

The conclusions of this Army Corp research regarding the effectiveness of 25 cm of groomed snow to absorb the forces of landing a wheeled C130 or C141 were as follows:

“This snow maintained a strength between 3000 and 7000 kPA throughout the course of our 12-week study.  This strength is more than suitable for the support of heavy wheeled vehicles and aircraft that typically do not require more than 1,000 kPa strength.” ^[10]

There appears to have been no criticism of the Army Corps 1997 research and this unanimity of research community around these conclusions was exemplified by the fact the conclusions of this research were again the basis of further analysis and review in 2017.  It is significant to note that the conclusions of the earlier works were not questioned in any manner and there was no discussion of concerns around the original conclusions after more than 10 years of landing of high-pressure aircraft and use of high pressure wheeled vehicles on the groomed snow surface. ^[11]  It was accepted that 25 cm of snow provided that level of resource protection.

It is uncontested that OSV usage averages 5 kPa of force on the snow, even under worst case scenarios.  Given the clear conclusions decades of Army Corps of Engineers research concluding that 25 cm of groomed snow can support 300 to 1,400 times the amount of force applied by a snowmobile for prolonged periods of time, the Organizations submit the levels of snow proposed in the Proposal are more than sufficient to protect resources from much lower pressures.  Significantly lower levels of snow than those proposed would allow the landing of a C130 aircraft on the snow without resource impact.

7b. Snow compaction via natural forces occurs throughout the world and results in material density similar to asphalt.

The Organizations are also aware that developing a complete understanding of snow compaction, both from natural processes and recreational activity, has been a significant factor in allowing OSV travel on roads and trails with lower amounts of snow. There is an exceptionally well-developed body of research regarding snow compaction from natural processes, a process which is commonly identified as snow sintering or snow metamorphosis. This large body of research is most directly targeting avalanche safety but also is directly involved with issues such as large construction projects on snow such as roads or mines, the monitoring of polar ice cap activity with satellites^[12], flooding in high alpine communities and the advancements in the construction of ice breaking vessels. The Organizations assert that snow compaction is the same regardless of what natural force is compacted and the conclusions of research should be the same regardless of what continent the research is performed on.

In this portion of our comments, the Organizations are not seeking to provide a complete outline of this rapidly developing snow science body of research that has resulted from the avalanche research community generally. This general body of work has been outlined in the 2016 textbook entitled “Snow and Ice Related Hazards, Risks and Disasters” edited by Wilfried Haeberli, collectively referred to as the “Haeberli Text” in these comments.[13]   Generally, Chapters 2 through 4 of the text provide an introduction to the compelling body of work that now supports snow sintering and metamorphosis and significant data that clearly can be relied on in defense of the varying snowfall totals based on surfaces under the snow and explaining why current management has been so successful.  This edition of the Haeberli text appears to be the most complete peer reviewed body of work on this issue and represents a consolidation of an enormous number of articles from globally recognized leaders in snow science.

This global summary of snow science research starts with the recognition that:

“Once deposited on the Earth’s surface, snow and fin density increases through metamorphism, eventually approaching the density of ice.  Metamorphism is a combination of both physical and thermal properties of snow.” ^[14]

Snow scientists recognize that sintering alters snow significantly, which is summarized as follows:

“New snow generally has the lowest densities with about 100 kg/m -3 and densities increase with aging snowpack due to metamorphism to about 350-400 kg/m -3 for dry old snow and up to 500 kg/m -3 for wet old snow.” ^[15]

Snow compaction is important  to developed ski areas for avalanche management and general operations.  These ski area efforts found that fallen/existing snow is subjected to additional snow load on top of the compacted snow densities continue to increase. Why is the ongoing sintering or metamorphosis process a general management issue for the downhill ski community?  The industry is trying to resolve the problem of skiers catching an edge on a ski run, which at best provides for a lower quality skiing experience for users and can also result in serious injury or death to skiers if an edge is caught at the wrong time or locations or occurs under competition conditions.

The conclusions of this long-term snow compaction research for developed ski areas are outlined as follows:

“Fresh fallen snow has a low density, <100 kg/m3. The snow is a mixture of solid snow crystals, liquid water and gaseous air. Over time it is compacted by wind. Snow crystals are sintered by daily temperature variations. The snow loses most of its gaseous and liquid content and, because of this, snow densities rise to 100–500 kg/m3. After a long time, snow converts to firn (500–800 kg/m3) and, under the load of newer snow, it even transforms to ice (917 kgm3).”^[16]

Given that best available science clearly concludes that the impacts of natural processes, such as wind, sun and gravity, can compact snow to a density of 5 to 9 times what the density of uncompacted snow, the Organizations submit this type of understanding is helpful in understanding snow compaction. Understanding snow compaction is important to the management of OSVS under the wide range of natural conditions seen on the RGNF.

Developing a general understanding of snow behavior is significant for other reasons as well.  The scientific conclusions that the natural compaction of fallen snow results in snow density levels of 500-917 kg/m3. In isolation, this conclusion simply means nothing.  When this conclusion is compared to more commonly understood materials, the conclusion is highly relevant.  These conclusions become more compelling when this density is compared to many other common road and construction materials as many land managers are far more familiar with the highly rigid behavior of these materials when forces are applied to them.  By comparison, the average weight and density of common building materials for roads and skyscrapers hundreds of stories tall is as follows:

The relationship of the density of compacted snow and asphalt cannot be overlooked as this comparison adds good context to the levels of protection from possible OSV impacts to resources that is provided by compacting snow. This information also provides scientific context and defensibility to explain why current management is effective in protecting resources. While land managers are very familiar with the performance of asphalt roads in avoiding contact with resources that might be under that roadway, often their experiences with snow are very limited. Given that the average road appears to receive 2-3 inches of asphalt with 4-6 inches of base under it to support motor vehicle traffic that commonly approaches 80,000 lbs. for a commercial motor vehicle on the asphalt for decades, even a minimal amount of compacted snow is sufficient to provide resource protection at levels very similar to asphalt when forces of an OSV are applied.

The relationship between the weight of compacted snow and asphalt cannot be overlooked in determining what is sufficient snow and what levels of resource protection are provided by snow from the time it falls to the times when it is fully compacted. Given that a snowmobile only applies .5 lbs. per inch on the snow or 5 kPa, while natural processes result in pressures many hundreds of times that of an OSV clearly the significant factors identified above must be addressed in any research addressing additional impacts to compacted snow from OSV travel. Additionally, the similarity in weight of snow and asphalt gives rise to another question, mainly if resources can survive the hundreds of Kg of pressure on them that can result from a meter of snow being on them, why would the .5psi of pressure from an OSV be a concern? Often these resources are buried under several meters of compacted snow for extended periods of time and emerge from the burial in the spring without issue. Several meters of compacted snow can easily result in sustained pressures on any resource of tons of force for many months drawing concerns about snow compaction into further question.

While not as developed to the research and analysis levels referenced above, the Organizations believe the position of the downhill ski industry regarding the impacts of snow sintering or metamorphosis is also very important to this discussion as the downhill ski industry has developed extensive technologies to improve mechanical grooming of downhill ski runs to address the continued impacts of sintering after the initial grooming of ski runs.^[19] These technologies are relevant to this discussion as downhill ski grooming and snowmobile trail grooming occur with the same pieces of equipment and there is no question that the sintering process continues after the grooming has completed. Asserting that sintering does not continue after grooming simply is not an option in the skiing or avalanche community, and the Organizations believe this compaction is equally relevant in the OSV world as a result of natural processes snow compacts into stronger and stronger layers and into layers that are far more compacted that could ever result from OSV traveling over the snow. The Organizations believe this compaction provides continued protection for resources even after the depth of snow from a storm has ended and has been compacted.

4b.  Snow sintering/natural snow compaction has already been recognized as a natural process in best available science by the USFS.

As discussed above, there is a huge body of work now available that clearly identifies the impacts of natural processes such as gravitational, thermal and physical forces on snow over time and conclude that these factors can significantly improve the ability of the snow buffer between recreation and any resource to function.  This type of protection is significant in allowing OSV usage on roads and trails with lower amounts of snow that is often the result of compaction. The Organizations would also note that the failure to address the natural forces resulting in snow compaction directly conflicts with best available science identified by land managers. The USFS, USFWS and BLM experts have concluded this by clearly stating as follows:

“Snow compaction in the Southern Rocky Mountain region is frequently a result of natural process and not recreational usage;”^[20]

In 2021 wolverine researchers reached similar conclusions about the compaction of snow resulting almost entirely from natural forces such as sun, wind, gravity and other factors. [21]

Given that the natural process causing the compaction of snow has already been recognized as best available science on what is a natural process occurring throughout the world, the Organizations must question how research can be identified as best available science on any issue involving snow depth without addressing this factor in some manner. The Organizations submit that best available science brings new information and understanding to allow managers to explain why current management of OSV travel on the RGNF has been effective rather than providing the basis for change of this management.

Best available science must be applied to allow for OSV usage on roads and trails recognized in summer travel management as significantly smaller amounts of groomed snow are sufficient for resource protection in these areas as these areas are important recreational corridors for usage of areas with deeper snow and will bring the RGNF to a consistent position with adjacent forest OSV decisions.

4c. Research addressing behavior of high-pressure vehicles in uncompacted snow from Army Corps of Engineers.

The Organizations would also like to address Army Corp research regarding the use of high-pressure vehicles on uncompacted snow.  While the specific conclusions of this research are not relevant to these discussions regarding the use of low-pressure vehicles, the recognition of several basic facts are important to the discussion.    Army Corp researchers concluded that comparatively high levels of force resulting from wheeled vehicle usage over small areas of uncompacted found that could be modeled for both hard snow and soft snow using the Capped Drucker-Page model.^[22]  Similar modeling could also be developed for exceptionally small amounts of force being applied to thin layers of snow.^[23]  Army Corp and other researchers also accepted the fact that expanding the foot print of the vehicle reduced the pressure applied to the snow.  While the conclusions are clearly not dispositive to the OSV travel questions due to the exceptionally large and small scales the work was performed at, the fact that snow density can be modeled consistently is significant to recognize as USFS efforts have been applying such a model on the ground for years to avoid possible impacts to resources. Such modeling is clearly possible and scientifically valid as a management tool and would support the conclusions of the 35 or more years of OSV management on the RGNF, mainly that snow is a highly effective buffer between recreational activity and resources under the snow.

The Canadian Government has decades of experience managing ice roads accessing hugely remote portions of the country.  Canadian governments ice road management policies for the operation of trucks up to 120,000 lbs.  This article specifically addresses  the portage/fen  areas where ice roads are transitioning from frozen lake surfaces to a more soil based medium, where the Canadian government has a long history of documenting minimal impacts with only 15 cm of snow for operation of the 120,000lb wheels trucks. Protocols have allowed grooming of these areas to start with only 5cm of snow.[24] We have also provided an article from 1975 providing further detail into the long history of highly detailed research of these sites and minimal impacts that have resulted.[25] While this information does not specifically identify usage of OSVs, the Organizations believe it is highly valuable information for the discussion.

4d.  Behavior of low-pressure vehicles in uncompacted snow.

A compelling body of work has generally originated out of the University of Calgary and has been driven by Professor Bruce Jamieson who has researched the behavior of uncompacted snow in the development and actions of avalanches for more than 2 decades in the Canadian Rockies. The Organizations would like to direct USFS to a series of three studies Mr. Jamieson conducted with Scott Thumlert and several others, published in the Journal of Cold Regions Science and Technologies, which for purposes of this document will be referred to as the “Jamieson/Thumlert” studies. Copies of each of these research documents have been included with these comments for your convenience as Exhibit “8”.  The Jamieson/Thumlert studies were generally in light snow as the densities were 191 kg/m3, 203 kg/m3 and 219 kg/m3, respectively (averaged for the top 90 cm) and as a result are addressing snow densities similar to those found on the RGNF.  In later stages of the research, the scope was expanded in include more compacted/multilayer snow in the research process.   In this research, snowmobiles climbing a hill under full throttle and skiers were traversing down the same hill were measured and factors such as snow displacement were incorporated into the analysis.  This research concluded:

“the static stresses applied to the surface of a mountain snow cover are similar for a typical skier (2.6 kPa, from 85 kg skier, 0.32 m2 area) compared to a typical snowmobile (3.8 kPa, from 350 kg machine and rider, 0.9 m2 area). The fact that the magnitude of stress added to the snow cover should be similar for skiers and snowmobiles was further evidenced in Fig. 5 which showed stress vs. effective depth. There is no substantial difference between the fitted curves for the skier and snowmobile data.”^[26]

A variety of testing processes were used over the three years started with skiers simply skiing over the test areas and advancing to skiers falling onto the testing areas and snowmobiles simply traveling over the area to snowmobiles jumping onto the test area or climbing uphill in the test area to simulate worst case scenario conditions. Video available for their research process here.^[27] While the Jamieson/Thumlert studies provide ground breaking information into low pressure snowmobiles and skiers for application of force on snow, the scale or context of the work is difficult to apply for the creation of management decisions as the works are more targeted at how these minimal forces are related to avalanche triggering rather than application of force on flat ground. The concerns around the levels of force necessary to trigger avalanches is simply much lower levels of force than the levels of force that would result in resource impacts but this research provides additional context and understanding into the movement of force through various depths of uncompacted snow and how the effectiveness of snow as a buffer improves as the snow compacts naturally.

While the conclusions of the Jamieson/Thumlert series of works are valuable alone as it is precedent setting nature of the dynamic measurement of force on snow from OSV/skier travel, these works are complex and difficult to place in a context for comparison. Earlier works of Bruce Jamieson with Brown provide good context for comparison of the Jamieson/Thumlert conclusions, as these earlier works provide conclusions around generalized force from compacted snow on materials under the snow.  This earlier research provides as follows:

“Figure 7 illustrates the response of weak layer shear strength to increasing overlying load due to continued snowfall. The weak layer deposited on 16 January had an initial shear strength of 195 Pa and strengthened over 9 days to 1532 Pa (Fig. 7a). Overlying load increased by 196 Pa during the same interval. For the layer deposited on 21 February, Figure 7b shows shear strength and load increasing by 403 and 216 Pa, respectively over 5 days.

For three separate time series measured shear strength is plotted against the overlying load (Fig. 8). At each observation snowfall had increased the load and strengthening in the weak layer was measured. In all three cases strength is positively correlated with load (Fig. 8; Table 2). The average loading rate and average strengthening rate varied for each time series resulting in different slopes of linear trend lines fit to the data.”^[28]

The data set for the above conclusions is provided in the following charts:

When the conclusions of the Jamieson/Thumlert works, mainly that skiers apply 2.6 kPa and snowmobiles apply on average 3.8kPa of force on the snow, is compared to the conclusions of the 2006 Brown/Jamieson research, mainly that natural snow compaction results in between 196 kPa and 216 kPa the conclusions are highly valuable and provide highly valuable conclusions in terms of scale of forces being applied. This research was also invaluable in understanding how snow is a more effective buffer as time and natural forces are applied to the uncompacted snow.  When the force of an OSV or skier through minimal amounts of snow is compared to the force of the snow on the ground, the conclusion is that the snow provides almost 50 times more force on the ground than an OSV.  While this is not dispositive for management, the fact that natural resources commonly survive application of forces averaging 50 times more than an OSV applies through minimal amounts of snow is highly valuable. This information is being provided to allow for a more detailed analysis and understanding of why current management has been effective in resource protection and why lesser amounts of snow may be permitted in certain circumstances, such as use of OSVs on developed roads and trails. Adoption of separate snowfall depths for on and off trail usage that are supported by best available science conclusions that snow is a highly effective buffer of force and recognize that snow compacts naturally and this compaction results in greater resource protection than uncompacted snow in the planning process.

5. A multi-year study on the Medicine Bow/Routt NF determined that fens are not impacted by snowmobile usage.

The Organizations have been actively involved in the development of the Rio Grande RMP and the GMUG RMP over the last decade. As planners are aware we intervened in the defense of the USFS decision on the Rio Grande when it was litigated and it is disappointing that we are assuming the same type of legal challenge will be brought against the GMUG.  We raise this issue  as during these objections and legal challenges we have consistently heard assertions that fens are not well understood and are highly sensitive and could be impacted by human activity in summer and winter.

Given that we anticipate this position to be again taken we have attached the results of a multi-year study that was performed on Rabbit Ears Pass on the Medicine Bow/Rout NF by the USFS in conjunction with CSU.  After a multiyear study the researchers were unable to establish any relationship or impact from snowmobile usage on fens. These researchers were unable to establish any impact to fens from low to medium recreational usage, which they summarized as follows:

“Our data and analyses indicate found no significant impacts to fens from winter recreation activities in the areas we investigated on the Routt NF.”[29]

The researchers were able to find a variety of relatively minor impacts from highly intensive ski grooming associated with developed ski areas such as steamboat.  This was quickly distinguished from dispersed recreation by the researchers as follows:

“Mechanized grooming associated with Alpine skiing operations is both intense and frequent, but on an aerial basis, the extent of impact is typically smaller than that possible with snowmobiling. However, our failure to document significant changes in areas subject to high snow machine use such as Rabbit Ears Pass suggest that more remote areas are unlikely to show greater impacts.”[30]

We hope this research can proactively address concerns around possible impacts to fens from low to medium intensity recreational activity and that this information will allow an effective and streamlined planning process to occur.

6(a) The Proposal must apply best available science on Canadian Lynx management.

The Organizations are aware there has been a large amount of staff turnover on the RGNF since the finalization of the RMP in 2020.  As a result of this turnover, we would like to outline our involvement with lynx and the forest plan since it was finalized, as the Organizations have intervened with the USFS in defense of the legal challenges that have been brought by interests that are simply not involved with the forest.  The Organizations are aware of the wildly inaccurate and unsubstantiated assertions that are made in the legal challenges centered around the Canadian Lynx on the RGNF.  While we are confident these allegations will eventually be dismissed in Court, we are also aware that these allegations and the Court action could impact planning efforts such as those currently being undertaken.

The Organizations vigorously supported RGNF planning efforts,  and more specifically the research of John Squires with the Rocky Mountain Research Station to understand the behavior of lynx in the large fire scars now on the forest.[31]   The Organizations vigorously support management based on best available science as best available science is not a static goal but rather is an ever evolving effort in planning.  Steadfast reliance on out-of-date theoretical planning docs is not in compliance with these requirements.

The Organizations are also aware that significant other research has been occurring throughout the region on lynx management issues.  The body of best available science was again updated with the release of the most recent version of the Lynx Recovery strategy  for public comment on December 1, 2023 by the US Fish and Wildlife Service. [32]  This comment period closed on Jan 30, 2024 so we doubt RGNF planners were aware of this document as scoping efforts were moving forward on the winter suitability effort.

The Organizations are concerned that the lynx standards outlined in the Proposal may reflect planning standards that are badly out of date, such as closure dates for lynx. This conflicts with new USFWS planning tools that has entirely removed motorized usage as a threat to the Lynx and only requires Lynx be counted in motorized recreation areas. This new standard is clearly stated in the 2023 USFWS Recovery plan for the Lynx  as follows:

“10. Minimize sources of human-caused mortality, particularly vehicle collisions (cars, logging trucks, snowmachines) and incidental trapping or hunting mortality (including mistaken identity) in each SSA unit (Recovery Criteria 1, 4). 10.1. Evaluate the relative influence of human caused mortality on population viability within each SSA unit.

10.2. Work with appropriate state and federal agencies to limit new highway development in lynx habitat, or steer development in a way that is minimally harmful to lynx (e.g., implement wildlife crossings, speed limits).

10.3. Increase awareness among vehicle (car and snowmachine) operators in areas of lynx presence of potential for collisions.

10.4. Monitor development of new motorized trails for recreational vehicles and levels of use.

10.5. Continue to work with state and tribal furbearer/hunting managers to refine and ensure implementation of measures to limit incidental take from trapping/hunting. Examples may include improving hunter/trapper education programs, Habitat Conservation Plans with state agencies, or trapping prohibitions or restrictions.” [33]

The Organizations have never even heard rumors of a lynx being struck by a snowmobile or other OHV being used recreationally, which mitigates our concerns around the need to address this type of an issue in the Proposal.  The Organizations are unable to find any requirements of timing or other restrictions for recreational usage of lynx habitat.  As a result, we are addressing these new lynx standards early in the process as we are VERY concerned that again the RGNF is relying on badly out of date information on the Lynx, rather than applying best available science.

The Organizations concerns around the need for management that is based on Best Available Science as we are intimately aware that social conflicts around wildlife in Colorado are at unprecedented levels, which is creating immense conflicts and challenges for managers and the public.  While this conflict is most directly focused on wolves, lynx management remains a difficult challenge due to the unintended impacts from that successful reintroduction by CPW in 2000. Conflict around the species has been immense as the lynx was successfully reintroduced and then listed on the ESA list.  Conflict was immediate and significant as research was generally lacking on  lynx management issues and the failure of the reintroduction to address the listing status. Conflict has continued as when science advanced, planning efforts lagged far behind these efforts. We have been working hard with CPW to address these issues and CPW has directly partnered with Colorado State University to develop better materials to engage the public with.[34] We hope this winter planning effort can be a plan that has moved forward from the highly arbitrary research of the early 2000s on the lynx and applies new science.  This would be a major step towards reducing and hopefully removing conflict around the Canadian Lynx.

6(b)  Reintroduced Wolves as a management concern for the Proposal.

The Organizations are aware that a huge amount of effort has gone into the wolf restoration efforts mandated by Proposition 114. We believe it is important to recognize that this has occurred but has resulted in significant conflict in a wide variety of ways, and unfortunately recreational usage of public lands has been drawn into this discussion.

The Organizations need to clarify that our concerns on wolf management issues have nothing to do with herds of wolves chasing motorized users.  That would be silly. The Organizations are also aware that both the USFWS and CPW management plans are silent on the possible need to restrict access to recreational opportunities as a result of the wolf reintroduction.  We have had the opportunity to discuss this possible issue with CPW representatives who have simply chuckled that anyone could asset such a management standard. Similar silence is found in the USFWS determinations and analysis around the 10j population designation provided for the wolves in Colorado.

We are concerned that wolves will impact species populations and behaviors, such as moving them away from traditional wildlife viewing locations.  When this movement occurs the public will not understand why this has happened and seek to blame factors other than wolves for this decline. Our concerns are certainly not abstract or remote on the possible indirect impacts of the wolf reintroduction to recreational access as this type of issue was on full display in the years of public meetings around the wolf reintroduction we have attended. Many other states have noted significant ungulate population declines as a result of wolf reintroductions.  Some of these declines were large on a localized level as these species are simply unfamiliar with  this new predator. The poorly understood nature of the ungulate response to fear from a reintroduced alpha predator was recently outlined in great detail by other researchers who concluded as follows:

“Similarly, in systems where predators have been locally extirpated and are later reintroduced or naturally recolonize, wild prey animals may be naive to risk cues. This naivety has been observed in multiple ungulate species in response to wolf extirpation and recolonization in North America and Europe, and while some populations quickly learn to fear predators, others have not exhibited typical anti-predator responses even after generations (Berger, Swenson, & Persson, 2001; Sand et al., 2006; Berger, 2007b). Further species-specific research is needed to understand the consequences of predator reintroduction for prey behavior and demography and inform potential management strategies.”[35]

Yet more researchers have summarized the poorly understood nature of the fear response of ungulates to newly introduced predators and how this is a management concern as follows:

“In the presence of predators, prey generally alter their behavior to become more difficult to capture, detect, or encounter. Antipredator behaviors are a complex suite of innate and learned behavioral responses, which can be individual or species-specific (Chamaillé-Jammes et al., 2014; Thurfjell et al., 2017). They can be affected by predator species and habitat characteristics.” [36]

The Colorado Wolf Plan outlines the anticipated indirect impacts to consumptive recreation of the wolf reintroduction to the availability of hunting licenses for deer and elk as follows:

“Ungulate harvest objectives in Colorado may need to be adjusted over time as a result of wolves on the landscape, which will impact hunting opportunities for resident and non-resident hunters, as well as businesses that rely on hunting, such as Outfitters. Additional regulatory restrictions, such as shortened hunting seasons to reduce hunter success rates, may need to be considered in some areas where wolves become established. Management prescriptions should be based on the most up-to-date science and data available to ungulate managers.”[37]

The Organizations believe this summary of indirect impacts to the consumptive recreational activities is probably accurate and should be hugely eye opening for many in the hunting community. This will cause conflict.  Expanding management responses to issues that have been found unrelated to ungulate population declines will only expand this conflict and that must be avoided.

6c. Wolverine reintroductions should not impact the Proposal.

The Organizations have been working with CPW on wolverine reintroduction for more than a decade.  Given the intense public interest that has followed the species and only expanded after the wolf reintroduction, we would like to provide input on this issue as well.  While we are sure that recent Wolverine listing efforts, which are currently being challenged by most states that support Wolverine, will be prominently featured in comments from those that oppose multiple uses, we would like to share the direction of our preliminary efforts and discussions with CPW on the wolverine reintroduction required under SB24-171.

CSA and the motorized community was engaged in discussions around plan development to support a possible reintroduction of wolverine in Colorado around 2012. In these efforts the draft plan that was created with CPW, USFS, USFWS and many others provided significant protections for multiple use recreation.[38] In our wolf discussions with CPW we raised the status of this draft plan and the upcoming wolverine reintroduction. CPW managers have stated they cannot see any reason for any closures to multiple uses on public lands as a result of the Wolverine reintroductions and that protection would be more clear than previous guidance documents.  These experts clearly stated they have little concern around the wolverines ability to survive in Colorado if they are not shot or poisoned.

7(a). Exclusionary corridors around CDNST.

The Organizations were concerned when the preliminary review of the Proposal revealed large green corridors around several of the routes on the forest.  We were concerned that   the exceptionally poor partner guidance on the use of trails designated by the National Trail System Act (“NTSA”) that we have encountered on other forests had already been incorporated into this Planning effort.  In the various public meetings our representatives addressed this concern with USFS staff who immediately informed us that these lines were not trail buffers but rather planning area boundaries.  The GIS team has simply made a poor choice in colors when identifying planning area boundaries and areas that were prohibited for motorized.  This was a great relief for many reasons.

While we vigorously support the assertion this issue is the result of poor color choices we will address this issue briefly as we have absolutely encountered this on other forests.  The map zooms below represent the types of corridors we are concerned about.

Our first concern on this issue would be how would this function on the ground?  Informing the public of this boundary would be functionally impossible. USFS staff would have to post multiple signs along these routes to inform the public of this somewhat random closure area on the forest. Given the huge snow depths that are seen on the RGNF post would have to be at several heights so the signage could be seen at times with lesser snow and at times of deeper snow. If the signs became buried in the deep snow, the value of the sign would be zero.  We are aware of the staffing challenges on the Forest and that posting such as this would be a lower priority than other issues.

The conflict that would result from this type of designation would also be immense as you could no longer ride across the planning area as these boundaries would essentially divide the forest into large sections that did not connect. This simply would make no sense to the average recreational user.

As a result of almost a decade of effort on this issue we are providing significant information on this issue in scoping in the hope of the issue being resolved quickly and effectively.   While we have no objections to these corridors excluding non-trail related usages along the route, such as timber, solar fields, wind farms and other uses not related to trail usage, we vigorously object to any attempt to elevate some trail uses above other trail uses on the route.  This concept has been struck down for decades despite the erroneous materials from other partners that continues to resurrect this idea.

7b. The 2020 US Supreme Court  determined that NTSA designation dis not alter the multiple use mandate for trails and areas adjacent to the trail.

The possible  exclusion of motorized usage around numerous routes on the Forest, and most consistently around the CDNST has been addressed by the US Supreme Court with the issuance of the 2020 US Supreme Court decision in Cowpasture River Assoc v USFS. [39] A copy of this decision has been attached for your convenience as Exhibit “11”. We are asking that the CDNST be managed in the manner that the USFS argued for in their recent Supreme Court effort where motorized usage was protected. The USFS argued successfully that the designation of any route under the National Trails System act does not alter the multiple use mandate applied to those lands. The Court found that if Congress did not clearly and explicitly remove lands from multiple use, they must remain multiple use areas. We agree with the Court and the USFS argument hat the NTSA is far from clear enough to support removal of routes from multiple uses on the trail .   While there is basis in the NTSA for removal of uses that are inconsistent with the trail designation and recreational usages, such as building a large solar or wind farm on or adjacent to any designated trail, we are unable to find any portion of the NTSA that mandates any particular usage of the trail over others.  Rather the NTSA explains the multiple use mandate on and around NTSA routes in great detail.

We would also be remiss if we did not raise the concern that the concept of single use recreation on the trail was presented to the Supreme Court by several recreational interest groups who have opposed the multiple use concept as a principal.[40]  It is significant that the Court declined to apply the theory that these groups sought to obtain.  While this interpretation of the NTSA has been soundly defeated at the US Supreme Court, this concept and effort continues in local and regional planning efforts with guidance materials from certain partner groups.  We are aware that this presentation can be somewhat compelling to a lay person and feel compelled to address this issue as it is an entirely inaccurate summary of the NTSA that fails to mention that there are provisions that repeatedly identify and protect multiple uses or that this interpretation and argument lost at the Supreme Court. While we are unable to explain this position continuing to be asserted, we will note that seeking to apply a position that the US Supreme Court declined to apply is simply not the behavior of a partner to land managers.

7c. Federal law specifically protects all  recreational usages of a nationally designated trails.

Given the CDNST is a Congressionally designated route, Congressional requirements for its management and the intent of Congress in their efforts is critically important to the scope of allowed and prohibited on particular segments of trail.  Since 1968, NTSA specifically identifies that all segments of the National Trails System shall be managed as follows:

“Development and management of each segment of the National Trails System shall be designed to harmonize with and complement any established multiple use plans for that specific area in order to insure continued maximum benefits from the land.“[41]

Congress clearly had the opportunity to manage NTSA routes under a single management standard, such as “horse or hike only” and specifically chose not to require such management.  Rather than excluding uses, Congress specifically provides that management must be harmonized with existing multiple use goals and objectives for the areas. As discussed in later portions of this objection, Congress has provided great deal of documentation regarding why the NTSA has been framed in the manner it is currently in.  The NTSA also specifically identifies that all national scenic trails shall be managed as follows:

“(2) National scenic trails, established as provided in section 1244 of this title, which will be extended trails so located as to provide for maximum outdoor recreation potential and for the conservation and enjoyment of the nationally significant scenic, historic, natural, or cultural qualities of the areas through which such trails may pass.”[42]

As the CDNST is a National Scenic Trail, Congress has specified that all national scenic trails be managed to provide for the maximum outdoor recreational potential. This Congressional intent for this amendment was clarified in 1983 with the addition of NTSA subsection j which specifically permits motorized and multiple uses of all NTSA routes as follows:

“(j) Types of trail use allowed
Potential trail uses allowed on designated components of the national trails system may include, but are not limited to, the following: bicycling, cross-country skiing, day hiking, equestrian activities, jogging or similar fitness activities, trail biking, overnight and long-distance backpacking, snowmobiling, and surface water and underwater activities. Vehicles which may be permitted on certain trails may include, but need not be limited to, motorcycles, bicycles, four-wheel drive or all-terrain off-road vehicles. In addition, trail access for handicapped individuals may be provided. The provisions of this subsection shall not supersede any other provisions of this chapter or other Federal laws, or any State or local laws.”[43]

When subsection j was added to §7 of the NTSA in 1983 generally allowing a wide range of uses on all routes identified under any designation, Congress clearly stated the desire to permit multiple use of trails outside Congressionally designated Wilderness areas.  This is clearly stated in the bill memo which provides as follows:

“A new subsection 7(j) is added to specify various types of potential uses which may be allowed on specific components of the National Trails System. The uses listed are not intended to be all inclusive, but to illustrate the wide range of recreation pursuits which may be served by various trails. While the new subsection would permit the appropriate secretaries to allow trail bikes and other off-the-road vehicles on portions of the National Trail System, the Committee wishes to emphasize that this provision gives authority to the secretaries to permit such uses where appropriate, but that it must also be exercised in keeping with those other provisions of the law that require the secretaries to protect the resources themselves and the users of the system.”[44]

The imposition of mandatory corridors not only directly conflicts with the letter of the NTSA, the intent of Congress but also conflicts with one of the basic rules of statutory interpretation as any large scale exclusion of usages conflicts with Congressional requirements that usages of the CDNST be addressed on a segment by segment basis rather than forest or regional restrictions of usages.

The Organizations hope that the previous information is helpful to USFS staff in addressing this issue if it should arise. Unfortunately this has arisen on many other forests since the Supreme Court decision and addressing this issue has created unnecessary conflict.  The Organizations support the interpretation of the USFS that non-trail related multiple uses have been placed at a lower priority in conjunction with any NTSA route designation as clearly the NTSA route elevates recreation in these areas. We also support the determination that trail usages on and around the NTSA are subject to Congressional designations, such as Wilderness.  We are not asking to ride in Wilderness. We are asking that recreational values on these trails and areas be maximized as the NTSA  does not elevate any recreational uses above others but rather protects all recreational usages.

8. Minimization criteria in winter planning.

The Organizations are aware that one of the major barriers for any form of recreational planning effort on federal lands has been the minimization criteria in the Executive Orders.  We are aware of several planning effort that became tangled with this issue for years, such as the recent travel planning efforts on the Pike/San Isabel NF.  It has been our experience that areas closed to motorized usages by Congressional designations are often removed from the minimization discussion.  This is a decision that simply cannot be defended as many of these designations were made to benefit non-motorized recreation, which was clearly identified by Congress when the Weminuche was designated and repeatedly expanded. Many of the interest groups aligned with the Weminuche continue to identify this area as “backpacking at its best”. [45] We don’t contest that position that the Weminuche provides backpacking at its best, but do vigorously assert that the Weminuche provides backpacking at its best throughout the year. These Congressionally protected recreational opportunities are highly relevant to minimization.  We are unable to identify any portion of the minimization criteria that requires only motorized areas to be reviewed in this process. These must include Congressionally designated non-motorized opportunities that are closed to OSV usage.

We are aware that Wilderness trail maintenance on the Weminuche has been difficult over the last several years but are also aware that the Rio Grande has made huge progress in reopening trails in the Weminuche that have been heavily impacted by beetle kill, wind events and sizeable landslides on other districts. The Organizations are also aware of the heavy toll taken on the Weminuche in recent wildfires. While the toll has been high, these fires reopened major portions of the Wilderness areas on the forest for easier and safer recreational access in the area.  Users simply do not have to deal with jack strawed dead trees piled 20-40 high for hundreds of acres.

The Organizations are also aware often assertions are made that these areas are too remote or do not have access via groomed routes. We would agree that often these areas do have limited access for a variety of reasons. Our position is this same assertion could be made for any winter recreational opportunities if the snowmobile community had not moved to provide groomed trails on the forest almost 50 years ago.  Without the groomed routes, most of the forest would be inaccessible. The Organizations vigorously assert we should not be penalized in planning with exclusions to provide opportunities for nonmotorized uses due to the fact we worked to address this access challenge many years ago. The nonmotorized community has had the opportunity to create a similar program over the last 50 years and simply has chosen not to address this access issue.  This is not our fault, and on several occasions we have offered to share our experiences with grooming and help them develop a nonmotorized grooming program. These offers have consistently been declined.

The Organizations are also aware that planners have proposed boundaries for usages around groomed routes, such as allowing non-motorized uses north of a groomed route and motorized usages south of a groomed route. While this appears reasonable to some, we oppose this type of  decision as the motorized community provided the route to get to the area.  As a result this is a 100% lost  opportunity for the motorized community and simply cannot be asserted to be a balance of any interests. We performed all the volunteer work, fundraised locally to support the grooming, partnered with CPW in the creation and  administration of the winter program and then only are obtaining half the benefit.

The Organizations vigorously assert that the RGNF has effectively minimized conflict on the forest for decades in compliance with the minimization criteria. Much of this is the result of large Congressionally designated areas on the RGNF.  This successful management must be the starting point for any minimization discussion. Minimization must also account for nonmotorized groomed routes on the forest do not appear to be addressed in minimization of impacts as minimization is a forest level effort. Minimization must also address nonmotorized routes outside the USFS management as we are aware there are several larger nonmotorized networks that are publicly available for the payment of a small fee.  While these areas are closed to snowmobile, and should remain closed, these area opportunities for recreational usage that should be identified when opportunities areas are balanced or impacts minimized.

9. Roadless areas are multiple use areas by definition.

We are concerned that the Proposal does identify Colorado Roadless areas as a desired characteristic for nonmotorized users.  It is desirable for motorized usage as well and motorized usage is specifically identified as a characteristic of a roadless area. This is clearly and repeatedly identified as follows in the Colorado Roadless Rule as follows:

“In addition, the rule allows motorized and non-motorized access into CRAs”[46]

This clarity is again provided for Upper Tier Colorado Roadless Areas:

Upper tier allows for motorized recreation, including future development of off-highway vehicle trails;[47]

The Colorado Roadless Rule also specifically addresses snowmobiles as a permitted usage in a Colorado Roadless Area as follows:

None of the alternatives affect access or use of existing roads and trails, including motorized travel on roads and trails, nor do they regulate recreational activities such as hunting, fishing, hiking, camping, mountain biking, summer/winter motorized recreation and skiing.[48]

We are asking the Colorado Roadless Rule be applied as required in the 2012 Colorado Proposal, which provides no preference for any usage and only address road construction and maintenance and specifically protects trails in all forms as a characteristic of these areas.

We are aware there is a portion of the public which seeks a winter nonmotorized experience that is often drawn to motorized trail heads due to the groomed routes we provide. We have never understood this course of action. There are significant opportunities for winter solitude and nonmotorized only opportunities on the forest, which are provided by the Weminuche Wilderness, which is the largest Wilderness area in the state of Colorado and other Congressionally designated areas. While there are not groomed routes for these opportunities, we are also aware that grooming is prohibited by these designations.  We have had discussions with those seeking these opportunities and have offered our experiences and relationships to start a nonmotorized winter grooming effort that could access these areas. That offer has never been accepted. These same barriers that are preventing access to these areas in the winter are the same barriers that forced us to start the winter grooming program with CPW 50 years ago.

10. Wilderness buffers are prohibited by the Colorado Wilderness Act.

The Proposal also seeks to protect non-motorized uses adjacent to Wilderness areas.  The management of these types of buffer areas is an issue we deal with FAR too frequently in the creation of Wilderness areas through legislation and in planning. This type of management designation is illegal as the Colorado Wilderness Act specifically prohibits the creation of buffers around Congressionally designated Wilderness for the protection of Wilderness values inside the boundary. This is specifically addressed as follows:

” Congress does not intend that designation of wilderness areas in the State of Colorado lead to the creation of protective perimeters of buffer zones around each wilderness area. The fact that nonwilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.”[49]

The Congressional reasoning for this decision is also clearly identified in the Act as follows:

“(b) The purposes of this title are to—

(1) designate certain National Forest System lands in the State of Colorado as components of the National Wilderness Preservation System, in order to promote, perpetuate, and preserve the wilderness character of the land, protect watersheds and wildlife habitat, preserve scenic and historic resources, and promote scientific research, primitive recreation, solitude, physical and mental challenge, and inspiration for the benefit of all the American people, to a greater extent than is possible in the absence of wilderness designation; and (2) insure that certain other National Forest System lands in the State of Colorado be available for nonwilderness multiple uses.”[50]

CSA would vigorously assert that the possible designation of bufferes around Wilderness areas, such as those that may be looked at, it exactly the type of conflict that the Colorado Wilderness Act sought to avoid.  We are not asking to ride in Wilderness as it is illegal but we are asking to have to have a full opportunity to ride outside Wilderness  as has been previously provides for by Congress.

11(a). Accurate economic analysis will be critical to this planning effort given the heavy reliance of small communities on recreation.

The Organizations have worked with local communities across the Forest for decades and they can play an integral part in providing quality recreational opportunities on public lands. We are also aware that these communities are heavily reliant on winter recreational opportunities on the forest to generate tax revenue and income to businesses that remain open in the winter.  Often these businesses are providing critical supplies and resources to members of the community and recreational visitors. As a result of this relationship, the Organizations vigorously support the development of accurate and detailed economic analysis and are providing several quality resources to support these calculations.  The Organizations are also aware when these types of efforts end up with results that cannot be defended factually, it can create significant conflict between managers and the public.  Again, we would like to avoid this situation in the development of the Rio Grande Winter Travel Plan.

We have attached the most recent research from the Department of Commerce’s Bureau of Economic Analysis that outlines spending amounts and profiles for all recreational groups nationally as Exhibit  “12”. We have also attached the Dept of Commerce state level research that provides simply immense amounts of information on recreational spending at the state level as Exhibit “13”.   This report has 5 tabs, which can be easily overlooked, that provide even more information.

In addition to the Department of Commerce research, we have attached the most recent economic analysis from the US Forest Service that is created in conjunction with the National Visitor Use monitoring process. This is Exhibit “14”. While we are aware that there are often concerns about the sampling of visitors around this process, the economic analysis is respected, high quality and we believe accurate.  We would be remiss if we did not highlight the spending profile conclusions in this work: [51]

Again, it should be noted that this USFS research concludes the motorized winter community outspends the cross country ski community at a rate of 2-3 times the amount spend.  This is critical information for planning in communities that are heavily reliant on recreation on federal lands for their survival.

The final economic contribution information we would like to provide is the newly released COHVCO economic contribution study for motorized usages in Colorado for 2023, which is attached as Exhibit “15”.  This was created in partnership with CPW, USFS and BLM. There is dedicated winter recreational information in the report on pg. 17 of the report and the report also provides regional spending information. We believe this is the most site-specific information available on this issue and it is highly relevant as it was just updated in partnership with the USFS regional office.

11(b) Good visitation information is necessary to economic analysis.

The Organizations are aware that accurate analysis of visitation to any planning area is critical to the calculation of economic contributions.  We have included a copy of the most recent national visitor use monitoring report for the RGNF as Exhibit “16”. While we are aware that the small sampling size of the NVUM effort has been a constant criticism of the process, this is also based on decades of research at this point.  The conclusions of the research have been consistent and at least provides a starting point for analysis.   NVUM research clearly identifies the strength in the interest as of the snowmobile community as almost all of them identify snowmobiling as the main activity they are visiting the forest to achieve.[52] Almost no other user group approaches this level of single minded usage of the forest.

The Organizations have also been an active participant in the NOCO places planning effort occurring along the Northern Front Range of Colorado.  While we are aware that these planning areas are clearly not adjacent this effort is relevant as we have been able to obtain what can only be summarized as groundbreaking visitation information about recreational usage in the planning area. This information has been presented in the following dashboard.

Workbook: NoCo 2050 Dashboard (tableau.com)

The Organizations are discussing how to obtain this type of data for the state with the USFS Regional office and with CPW.  Funding may be available for this type of effort from several sources. The Organizations have also explored obtaining this type of information for site specific projects with funding from the OHV/OSV programs in the future.  While we would not be optimistic about the success of this type of effort currently, given the highly competitive nature of these programs currently, we are more optimistic that data such as this would be a competitive grant after registration fees have been increased.

12. Wildlife Populations are strong and stable in the planning area.

Prior to addressing specific species or issues more directly, the Organizations would like to express our frustration with the situation we encounter far too frequently on wildlife issues across the state. Managers and partners are simply unable to celebrate success on issues. Almost every species in the State is at or above population objectives and many species have been successfully reintroduced. Deer populations are strong across most of the state, and are only slightly below average due to significant winterkill issues in northwestern Colorado.   CPW again outlined the populations of elk at the State level with the release of the 2023 Wolf reintroduction management plan which clearly stated as follows:

“The sum of Colorado’s post-hunt HMP population objective ranges for elk statewide is 252,000-306,000 for all 42 elk herds combined. These data indicate that Colorado’s elk population is over objective”[53]

The wolf management plan also clearly outlines the generally good position of the deer herd populations in the State.  This plan also states the primary threat to deer continues to be Chronic Wasting Disease and the huge localized impacts that resulted from the unprecedented winter kill issues in Northwest Colorado as follows:

“The statewide deer population has been more stable recently, averaging 420,000 over the last 11 years. The sum of all herd population estimates is still far below the sum of individual HMP population objective ranges of 438,000-520,000 for all 54 deer herds combined. Declines in deer populations are primarily in the largest, western most mule deer herds in the state. In 2021, 26 of 54 (48 percent) deer data analysis units were within their population objective ranges and 18 of 54 herds (33 percent) were below their population objective ranges. There is on-going interest from various constituents to increase mule deer populations; however, for many deer herds, population management is largely dictated by herd productivity and performance, winter severity, and Chronic Wasting Disease (CWD) prevalence.”[54]

Overall the ability to provide conclusions such those in the wolf plan are a huge win for decades of management efforts by CPW, USFS, BLM and partners like the motorized community and it is frustrating that success like this cannot be recognized or celebrated.

Despite the strong and repeated positions of CPW on these types of issues, The Organizations involvement in the RGNF RMP revision and several other adjacent planning efforts has made us intimately familiar with unsupported assertions that wildlife populations are collapsing throughout the state.  As a result, we again expect these types of assertions to be made around this effort.  As a result, the guidance and conclusions of the herd management plans for DAU on the RGNF and the regional elk report for the planning area from CPW that these herds are at or above objectives and have been at these levels for an extended period will be relevant. [55] These reports clearly and directly conclude that units on the RGNF are at or above management objectives and these herds have a long history of stable populations along with previous levels of recreational access.

The Organizations are also compelled to share our experiences with the basis for these population declines.  It has been our experience that these assertions are based on comparisons to historical high-level populations in a planning area, rather than the population goal that has been set by CPW.  We are aware of several units where CPW has significantly increased levels of hunting on the unit to reduce populations to sustainable levels.  This situation is not the basis for restrictions on recreational activities on the RGNF.

Winter travel on the forest also occurs in areas that are not winter range and generally calving occurs after the winter season has concluded. While often concerns are raised about calving areas etc we are simply not using these areas for snowmobile recreation as calving areas are lower elevation areas and areas that lack snow.  We snowmobile in areas with exactly the opposite criteria.

15. Trail widths for winter travel.

The Organizations frequently are asked if there is any preference or need for 50 inch type trails  for winter travel or if there should be a width restriction on winter trails. We do not support any width designation for trails in the winter. Our groomers are often far in excess of 10 feet in width and any attempt to restrict trail width to 50 inches would be a major concern for our grooming operations. While we are aware of challenges around the usage of wider vehicles in other portions of the country, due to limited width efforts to groom trails or trails being provided via easements that only allow snowmobile usages we are not aware of these type of issues on the RGNF.

We are also aware of the growing use of track type Conversions of ATV and SxS or other summer type vehicles that can create concerns.  We are also aware these conversions area often used for a wide range of uses including recreation but also allow private lands owners access to their property, search and rescue, ice fishing and many other uses. We have include research into the usage of these type of vehicles and fat tire bicycles on winter routes as Exhibit “17”.  Growing community that is restoring older snowcats.  We support this type of access and would be concerned if any closure or restriction was proposed to address these uses.

The Organizations must also recognize that the concept of a 50 inch trail is becoming outdated in summer travel management circles with larger machine being produced for summer usages. We are not aware of any restriction or requirement even for summer travel that trails are only 50 inches in width.   Many trails are growing in width to accommodate these uses and on many forests existing low level roads are being converted to trails so accommodate larger SxS and to reflect the levels of usage historically found on these routes.  Again, this is process we vigorously support.

16. Conclusions.

Please accept this correspondence as the input of the motorized community with regard to the public comments on the proposed OSV suitability mapping that has been provided. There is a long history of winter recreation on the Forest without conflict between uses and this has to be the starting point for analysis. We are aware that recently planning efforts on the Forest has resulted in significant asserted conflict on issues, but this has not reflected the historical level of challenges facing the Forest. The motorized community has enjoyed a long partnership with the Forest and has always enjoyed proactively addressing challenges on the forest in a collaborative manner.

It has been the Organizations experience that while USFS planners have effectively managed OSV recreation for decades without resource impacts, they are also hesitant to rely on this successful management history as the basis for future planning.  We hope the information below supplements this generally accepted knowledge with a high level of scientific certainty and encourages managers to avoid large scale changes to OSV management in the hope of avoiding possible impacts to resources or a lack of scientific certainty around the commonly understood conclusions that managers have relied on for decades in OSV management.

The Organizations are aware the scale of information and scope of information provided on these issues may be much larger than expected. This response is being provided in the hope of streamlining and speeding the planning process as much as possible. While there is a large amount of information provided on these issues, we have significantly more information on many of these issues. There are also many topics we did not provide information on as we are hoping these are comparatively minor in scope. We hope this information triggers an ongoing dialogue with the forest on issues they are encountering in the Planning process so these resources can be effectively used.  We have devoted significant resources towards avoiding overly sensational resources or information that lacks basic credibility.  In addition to this resource specific information, we have also provided information we believe is relevant to planning, such as the financial sustainability of our clubs grooming support through the CPW grooming program, which we are in the process of updating currently.  We hope these efforts and information provide an accurate picture and vision for the winter grooming efforts of our clubs, as this is the primary method all public users rely on to access the winter backcountry on the forest.

The Organizations welcome this opportunity to provide input and hope our input is not overwhelming. We are also aware that there are always new challenges to be addressed and that this is a voyage and not a destination.  We would welcome the opportunity to engage with RGNF planners to address these issues as they arise.  The Organizations would welcome a discussion of these opportunities and any other challenges that might be facing the Rio Grande National Forest moving forward at your convenience.  Please feel free to contact  Scott Jones.  His phone is (518)281-5810 and his email is scott.jones46@yahoo.com.

Sincerely,

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President/Founder
CORE

Scott Jones, Esq.
Executive Director CSA
Authorized Representative COHVCO

[1] See, SB24-56

[2] See, Proposal at pg. 3.

[3] More information on this office is available here About Cold Regions Research and Engineering Laboratory (CRREL) (army.mil)

[4] For a complete summary of the more than 75 years of research that has been performed by the Army Corps of Engineers please see Shaprio et al; Snow Mechanics; A Review of the State of Knowledge and applications; US Army Corps of Engineers CRREL Report 97-3 August 1997.

[5] See, Blaisdell et al; First International Conference on Winter Vehicle Mobility; US Army Corps of Engineers; Special Report 93-17 (July 1993) at pg. 91

[6] A partial copy of foundational research from 1948 and 1952 are attached as Exhibit “1”.  Complete copies of these works are available but have not been included with these comments as the conclusions are addressed in subsequent works identified with far greater detail.

[7] A complete copy of this treaty has been enclosed for your reference as Exhibit “2”.

[8] See, Lee et al; Improving snow roads and airstrips in Antarctica; US Army Corps of Engineers Special Report 89-22 (July 1989) at pg. 17.  A copy of this research is enclosed as Exhibit “3” to these comments.

[9] See, Lang et al; Processing snow for high strength roads and runways; Journal of Cold Regions Science and Technology 25 (1997) at pg. 18. A copy of this research is included as Exhibit “4” to these comments.

[10] Supra note 28 at pg. 29

[11] See, White et al; Review of ice and snow runway pavements; International Journal of Pavement Research and Technology 11 (2018) 311-320.

[12] See, Arthern et al; In situ measurements of Antarctic snow compaction compared with predictions of models; JOURNAL OF GEOPHYSICAL RESEARCH, VOL. 115, F03011, doi:10.1029/2009JF001306, 2010

[13] A complete copy of this text is available for your review at the following website: Snow and ice-related hazards, risks, and disasters : Free Download, Borrow, and Streaming : Internet Archive

[14] See, Haeberli at pg. 38.

[15] See, Haeberli et al at pg. 101.

[16] See, Mossner et al; Measurement of mechanical Properties of snow for the simulation of skiing; Journal of Glaciology, Vol 59, No 218 2013 at pg. 2013. See Also, Fauvre et al; Optimal Preparation of Alpine Ski Runs; Proceedings of the 2004 International Snow Science Workshop, Jackson Hole, Wyoming; University of Montana; 2004.

[17] See, https://theconstructor.org/building/density-construction-materials/13531/ for values of asphalt and cement

[18] See, https://hypertextbook.com/facts/1999/KatrinaJones.shtml for density of lightweight concrete

[19] For a representation of this technology please see https://www.prinoth.com/fileadmin/user_upload/pdf/prinoth_snowdepthmeasurement_EN_NA_01.pdf

[20] See, Interagency Lynx Biology Team. 2013. Canada lynx conservation assessment and strategy. 3rd edition. USDA Forest Service, USDI Fish and Wildlife Service, USDI Bureau of Land Management, and USDI National Park Service. Forest Service Publication R1-13-19, Missoula, MT. at pg. 26.

[21] See, Glass et al;  Spatiotemporally variable snow properties drive habitat use of an Arctic mesopredator; Oecologia (2021) 195:887–899.  A copy of this research is attached as Exhibit “5” to these comments.

[22] See, Haehnel et al; A Macroscale model for low density snow subjected to rapid loading; Cold Regions Science and Technology 40(2004) 193-211.  See also, Richmond et al; A macroscopic view of snow deformation under a vehicle; Army Corp of Engineers Special Report 81-17.  July 1981.

[23] See, Huang et al; Mechanical properties of snow using indentation tests; size effects; Journal of Glaciology; vol 59 No 213 (2013)

[24] See, Sladen; et al;  Evaluation of threshold freezing conditions for winter road construction over discontinuous permafrost peatlands, subarctic Canada Cold Regions Science and Technology 170 (2020) 102930;  A copy of this article is attached as Exhibit “6”

[25] See, Adam et al; Snow and Ice Roads: Ability to Support Traffic and Effects on Vegetation; Snow and Ice Roads (1975). A copy of this article is attached to these comments as Exhibit”7″

[26] See, Thumlert/Jamieson et al; Measurements of localized dynamic loading in a mountain snow cover; Journal of Cold Regions Science and Technology; Vol 85 ed 94-101; 2013 at pg. 99 emphasis added.

[27] See, https://vimeo.com/20563669

[28] See, Brown & Jamieson; Evolving Shear Strength, stability and snowpack properties in storm snow; Proceedings of the International Snow Sciences Workshop 2006 Telluride Colorado at pg. 15. (Emphasis added.) A complete copy of this research has been included with these comments as Exhibit “8”

[29] See, Gage et al;  EVALUATING SNOW COMPACTION EFFECTS TO FEN WETLANDS ON RABBIT EARS AND BUFFALO PASS OF THE ROUTT NATIONAL FOREST; Final Report; Challenge Cost Share Agreement No. 08-CS-11020603-032 Department of Forest and Rangeland Stewardship Warner College of Natural Resources Colorado State University May 30, 2013 at Pg 51. A complete copy of this work has been attached as Exhibit “9” to these comments.

[30] See, Gage et al Pg 50.

[31] Squires, J.R., J. Ivan, J. Holbrook, R. Lawrence, S. Savage, and R. Ghormley. 2018. Habitat relationships of Canada lynx in spruce bark beetle impacted forests – analysis summary March 2018. USDA Forest Service internal report for the Rio Grande National Forest. Rocky Mountain Research Station, Missoula. MT. 34 p. including tables and figures.

[32] We have enclosed a copy of these new lynx management plans as Exhibit “10” to these comments.  More information on this effort is available here:  Canada lynx draft recovery plan available for public review & comment | U.S. Fish & Wildlife Service (fws.gov)

[33] See, U.S. Fish and Wildlife Service. 2023. Recovery implementation strategy (RIS) for the contiguous United States Distinct Population Segment of Canada lynx. November 2023. U.S. Fish and Wildlife Service, Mountain-Prairie Region, Denver, Colorado. At pg 7.

[34] See, CO-WildlifeValuesReport.pdf (colostate.edu)

[35] See, Gaynor et al; An applied ecology of fear framework; linking theory to conservation practice; Animal Conservation; #24 (2021) at pg. 312.

[36] See, Chitwood et al; “Ecology of Fear” in ungulates; Opportunities for improving conservation; Ecology and Evolution; February 3, 2022

[37] See, CPW Wolf Plan at pg. 23

[38] A copy of this plan has not been included as we expect the new wolverine plan to be finalized before the completion of this effort. If you desire a copy of this draft plan can be provided.

[39] 590 U.S. ___ (more);140 S. Ct. 1837; 207 L. Ed. 2d 186

[40] Copies of these documents are available if you should desire to review them. We have not included them here simply to reduce the size of this document and avoid information that is only questionably relevant to these proceedings.

[41] See, 16 USC 1246(a)(2) emphasis added.

[42] See, 16 USC 1242 (a)(2).

[43] See, 16 USC 1246 (j).

[44] See,  H.R. REP. 98-28, 1983 U.S.C.C.A.N. 112 at pg. 6.

[45] As an example Weminuche Wilderness: Trails, Camping, and Guides – SJMA

[46] 39585

[47] 39589

[48] 39589

[49] See, §110 PUBLIC LAW 96-560; 94 STAT. 3265; DEC. 22, 1980

[50] See, §101 PUBLIC LAW 96-560; 94 STAT. 3265; DEC. 22, 1980

[51] See, White 2017 at pg.58.

[52] See, Exhibit 16 at Pg 20.

[53] See, CPW 2023 Wolf plan at pg. 16. Full Copy of this plan is available here: Colorado Wolf Restoration and Management Plan Final (state.co.us)

[54] See, 2023 CPW wolf plan at pg 17.

[55]  Copies of all relevant herd plans above are available here: Colorado Parks & Wildlife – Herd Management Plans (HMP) (state.co.us)

Bureau of Land Management
Richfield Field Office
150 East 900 North
Richfield, UT 84701

RE: Henry Mountains and Fremont Gorge TMP (DOI-BLM-UT-C020-2018-0006-EA)

Dear BLM Planning Team:

Please accept this correspondence from the above organizations as our official comments regarding the Henry Mountains and Fremont Gorge (HMFG) Travel Management Plan (TMP).

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

HMFG is a huge planning area at the heart of canyon country that’s quintessential to southern Utah recreation, containing many motorized trails of great value, with routes traversing from nearly the top of the Henry Mountains to the bottom of the Dirty Devil River. While the scale of the area may make planning feel overwhelming, the scale is part of what makes this network of routes so outstanding. It’s critical to fully assess the quantity and quality of routes, as they combine to provide diverse recreation that’s only becoming more important in modern life across our nation.

3. The route inventory must be completed in order to reach a sound decision.

Good planning starts with fully documenting the current conditions so that the affects of any alternative can be accurately analyzed. The HMFG route inventory is clearly missing hundreds of miles of existing routes, most of which are primitive roads while others are OHV trails, and most of which have existed for many decades.

Even if an existing route would remain closed in all of the alternatives, it needs to be included in the route inventory to assess things like minimization, particularly since this TMP is intended to redo the TMP from 2008. Most of the missing routes were not inventoried prior to 2008, so they have never been properly analyzed, and this TMP represents the time to give them a fair shake. Nearly all of the missing routes were open prior to 2008, so they should be reconsidered to designate them open or to finally account for the positive and negative effects of their closure.

Missing routes are a major issue across the planning area, all of which should be revisited to complete the inventory, but the organizations will provide six examples:

1. Many primitive roads are missing from the route inventory between North Hatch Wash and Big Ridge (as one can easily see from aerial photos in addition to observation at ground level), including one that connects the bench road (GABD0511) all the way to the Simplot Dugway, providing a tremendous trail experience that is not substituted by the graded road of North Hatch Canyon.
2. Another primitive road in that same vicinity illustrates the personal meaning of many such routes. Specifically it’s in the southeast corner of the TLA section that’s a couple miles southwest of the Simplot Dugway. As one can easily see from aerial photos in addition to observation at ground level, it gently climbs from the graded road up to the bench and ends at a camp where half a dozen trailers spent half a year building the Simplot Dugway for Kirkwood Oil. One of our members has fond memories of spending the summer of 1980 there despite historic flooding that year, and he would love to visit the camp, but he depends upon motorized access due to his mobility limitations.
3. Several motorized singletracks exist along Skyline Rim and down it (connecting Upper Blue Hills and Lower Blue Hills), providing trail-based motorcycling opportunities through this striking area, which were a prized consolation after open cross-country travel of this area was prohibited in 2003.
4. Wild Horse Canyon Road actually crosses Muddy Creek (from WYNC0011d to WYNC0045c). While it may be obscured by the natural meander of Muddy Creek, we have crossed it for many decades, as it provides the only through-going route besides the graded Reef road and the paved highway.
5. North of Backburn Draw / Little Meadow, a full-size vehicle route connects WYBD0199 to WYBD0177), creating loop opportunities northeast of Hanksville with more flowing trail and scenic views than most routes in the sand flats further northeast. From this route, an old constructed road climbs north to reach WYBD0198, thus staying further away from Little Meadow. Since the old road wasn’t designated open in 2008, it is now less apparent, but still offers a viable connection from WYBD0199 to WYBD0198.
6. Several routes to the planning area boundary are missing despite that they are designated open on the other side, such as one that follows the west side of North Spring Wash (northwest of Little Saucer Basin) and becomes SD333 as designated by the San Rafael Desert TMP decision of 2022.

Perhaps some of the missing routes were excluded from the inventory because they appeared to be partially “reclaimed” or hard to find. This appearance doesn’t justify exclusion because it doesn’t mean that:

1. The routes have received no OHV use in recent years (as some terrain is prone to disguising evidence of use),
2. The routes have no current value for OHV use (as a lack of use could be due to a lack of wayfinding signs),
3. The routes have no potential value for OHV use (as the amount and types of recreational use increases), or
4. Use of the routes would cause significant adverse impacts (as some routes are essentially innocuous, especially when they receive a modicum of management like basic maintenance and user education, which can be supported through resources such as OHV groups and the State of Utah as well as Garfield and Wayne counties).

In fact, often the more primitive routes are quite manageable because basic measures can be taken before any major increase of use, and often they are of higher quality for OHV riding. Most OHV riders favor trail characteristics that offer more challenge, a sense of flow, and connection with the surroundings.

Also perhaps some of the missing routes were excluded from the inventory to avoid the expense of doing more Class III cultural surveys. While the 2017 settlement may require cultural surveys to be done on HMFG routes that will be designated open, it does not require cultural surveys to be done on HMFG routes that will be merely proposed to be designated open by an alternative, and it does not require cultural surveys to be done on HMFG routes that will be included in the route inventory. When it comes to actually designating the routes open, the additional time needed to perform cultural surveys would surely be granted given that its purpose is to comply with the 2017 settlement.

4. At least one alternative must propose to open many of the currently-inventoried routes in order to provide an adequate range of alternatives.

Good planning depends on considering a healthy range of alternatives and, if it wouldn’t be unreasonable to designate a given route open, then it should be open in at least one of the alternatives. Many such routes (that were included in the route inventory and are reasonable to open) are not open in any of the preliminary alternatives.

Viable routes being excluded from every alternative can be found across the planning area, all of which should be revisited in at least one draft alternative, but the organizations will provide three examples:

1. Between North Hatch Wash and Big Ridge, the bench road (GABD0511) is “reclaiming” according to your preliminary route report, but it clearly exists and is still passable as you can see from the following photo of its entrance in 2021.
   Also the bench road is “in Mexican spotted owl critical designated habitat” according to your preliminary route report, but it’s hundreds of feet below the cliffs, so it seems possible that it will not cause considerable adverse effects. Likewise the route has “potential for conflicts between off-road vehicle users and dispersed, non-motorized/non-mechanized forms of recreation” according to your preliminary route report but, in the vicinity of the bench road, non-motorized use doesn’t seem common or particularly sensitive to responsible use of the road. Plus those seeking more exclusively non-motorized recreation can find it in the wilderness study areas (WSAs) that are north and south of the bench road as well as the national recreation area and national park that are east of the bench road, as Big Ridge is an island of traditional multiple-use management. The organizations are open to additional information but, at this stage, it seems entirely appropriate to open the bench road in at least one alternative.
2. The primitive road up Cass Creek (GAHM0308b) climbs from 8,600′ to 9,800′, and the additional elevation provides more forest cover as well as the sense of being “in the mountains” instead of merely “on the mountain,” not to mention the welcome challenge of scaling a rocky route. We have ridden this route prior to 2008, and it’s quite important along with the few other primitive routes in the Henry Mountains, as motorized travel is confined to graded roads in most of the Henry’s. The preliminary route report states the potential for negative impacts to soil and wildlife, but seasonal restrictions could be applied so long as it’s open for most of the summer and fall. The preliminary route report states the potential for negative impacts to the surrounding WSA, but much of the sights and sounds of motorized use are screened by the route’s location, as it sits in the bottom of a major drainage surrounded by vegetation.
3. The Coal Mine Wash route (WYNC0047c) is an important link as well as providing striking views in a relatively remote part of Lower Blue Hills and a challenging climb up to Upper Blue Hills. The preliminary route report states the potential for negative impacts to endangered plants species, but basic measures like route marking could ensure that the vast majority of use would be confined to the designated route. It also states the potential for negative impacts to cultural sites, but there’s plenty of room in the given terrain for rerouting as needed. Going back decades, we have enjoyed riding this route, as well as every other route mentioned in these comments. Opening the route shouldn’t be ruled out at the outset of the draft TMP, so it should be open in at least one alternative, then it can be vetted further.

5. When developing TMP alternatives, the 2017 settlement does NOT require an alternative to close routes in lands with wilderness characteristics, only in natural areas and WSAs.

Many of your preliminary route reports state “Per the Settlement, BLM is analyzing at least one alternative route network that designates routes in BLM-inventoried wilderness characteristics as closed to public OHV use.” Also your preliminary Alternative B closes virtually every route within lands with wilderness characteristics (LWCs) other than those that form cherry-stems or other boundaries of LWCs.

However the 2017 does NOT require an alternative to close routes in LWCs, only in the subset of LWCs that are “natural areas” (which is an RMP decision) as well as WSAs, as indicated by the very heading of that part of the 2017 settlement:
“f. Alternative route networks within WSAs and Natural Areas.
For routes or portions thereof that are located on public land within wilderness study areas (“WSAs”) and Natural Areas, BLM will analyze in the NEPA document at least one alternative route network that would enhance BLM-inventoried wilderness characteristics by designating the routes or the relevant portions thereof as closed to ORV use, unless ORV use of the route is authorized by an existing right-of-way or other BLM authorization or by law. To the extent ORV use of a route is authorized, this alternative route network will include measures limiting ORV use to enhance BLM-inventoried wilderness characteristics to the greatest extent possible consistent with applicable laws, regulations, or existing right-of-way authorizations.”

Therefore your draft alternatives should not propose to close any routes outside of natural areas or WSAs for the purpose of minimizing impacts to wilderness characteristics (WC).

6. When making the TMP final decision, impacts to wilderness characteristics should not be minimized outside of areas that the RMP directs to manage for wilderness characteristics.

Through approving the 2008 Richfield RMP, the BLM decided to manage for WC in 12 areas that it calls natural areas to distinguish them from other LWCs, which the BLM decided not to manage for WC. The 12 natural areas total 78,600 acres on top of the WSA acreage. Outside of natural areas and WSAs, the BLM should not restrict recreation for the purpose of minimizing impacts to WC, nor should it manufacture other purposes. Rather the BLM should comply with the RMP decision to not manage for WC in the remaining LWC acreage.

7. Conclusion

The organizations hope these comments help you to honor the 2008 RMP decisions, comply with the 2017 settlement, and thoroughly inventory the HMFG routes along with their recreational value to accommodate the growing enthusiasm for motorized trails in this inspiring landscape.

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

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

RE: Bears Ears Proposal RMP revision

Dear Sirs:

Please accept this correspondence as the support of the above Organizations for Alternative A of the Proposal as the Alternatives provided are based on factually indefensible assertions and erroneous calculations at such a level to avoid meaningfully review of impacts. The above Organizations  are vigorously opposed to Alternatives D and E of the Proposal as we are unable to align these Alternatives with the basic purpose and need of the project or the requirements of the Proclamation designating the area. While the Proclamation repeatedly identifies a wide range of recreational opportunities and other values and factors to be protected in the Monument, these Alternatives consistently fail to recognize these values.  We are unable to reconcile protecting recreational values in an alternative that would designate most of the planning area as an Area of Critical Environmental Concern or see to develop an entirely new planning model, when compared to USFS and BLM planning regulations. The long-term conflict and challenge of attempting to align decisions such as this with traditional BLM management, such as budgeting and efforts like Great American Outdoors Act funding would be immense. Not only does this type of designation fail to meet the purpose and need of the Proclamation, many legal concepts and standards are twisted into new definitions to support the Alternative.

Our opposition to concerns around Alternatives B and C are centered around three issues:   First numerous recreational benefits are asserted to be coming out of these Alternatives, but we cannot identify any management decisions that would support these conclusions. Rather all management decisions and guidance provided would make expanding recreation more difficult rather than easier. Rather than identifying Special Recreation Management Area (“SRMA”) type designations where recreational access could be improved and expanded, every management designation would make recreational development more difficult as existing SRMA designations are greatly reduced in size or are simply redesignated to Extensive Recreation Management Areas (“ERMA”) designated areas.  The Organizations have never seen this type of management model expand recreational access.

Secondly, these generalized assertions of benefits are made without recognition or analysis  of the major or indirect components of the recreational usage asserted to be benefitted.  An example of this would be assertions that more camping access is made, but there is no recognition that camping is often driven by motorized access.  There is no location where motorized access would be improved making any assertion of improved opportunities like camping difficult to support.

Thirdly, significant portions of analysis simply  do not have any factual accuracy, such as the economic analysis and the complete lack of cultural resource inventory information despite the Proclamation identifying several different cultural values to be protected, such as cultural sites and cultural landscapes. The Proposal introduces entirely new planning concepts, such as a cultural landscape, but fails to provide any definition used in the development of the Proposal or that could be used in any subsequent site-specific planning efforts.

Without basic definitions and analysis on landscape level  foundational terms and concepts such as cultural landscape or what a soundscape management plan would require, how can subsequent planning be guided by the RMP. We are unable to find any definitions for these and many other concepts in BLM regulations or existing statutes further compounding the failure of the Proposal on this issue. When our efforts forced us to seek other authorities for a possible definition of a cultural landscape, these definitions simply failed to align in any way with the concepts or analysis in the Proposal. The Proposal not only fails to align with third party definitions of cultural landscapes, and fails to provide any cultural standards at all. Is a cultural site more protected than a cultural landscape?  Is there a certain density of cultural sites necessary to have a cultural landscape? Is the entire Monument a cultural landscape? How many cultural sites have been identified already in the planning area? We simply do not know.  Almost a decade has passed  since the issuance of the Original Proclamation by Obama December 28, 2016 designated the Monument. Despite this amount of time passing, it appears significant foundational work has not been completed.  This again is a concern as there is significant foundational work remaining and we have no basis to assume this will be completed in a timely manner.

1. Who we are.

Before addressing the Organizations specific concerns regarding the Proposal, we believe a brief summary of each Organization is needed. The Off-Road Business Association (“ORBA”) is a national not-for-profit trade association of motorized off-road related businesses formed to promote and preserve off-road recreation in an environmentally responsible manner.

One Voice is a non-profit national association committed to promoting the rights of motorized enthusiasts and improving advocacy in keeping public and private lands open for responsible recreation through strong leadership, advocacy, and collaboration.  One Voice provides a unified voice for motorized recreation through a national platform that represents the diverse off-highway vehicle (OHV) community.

The United Snowmobile Alliance (“USA”) is a nationally recognized 501 (c)(3) dedicated to the preservation and promotion of environmentally responsible organized snowmobiling and the creation of safe and sustainable snowmobiling in the United States.

United Four-Wheel Drive Association (“U4WD”) is an international organization whose mission is to protect, promote, and provide 4×4 opportunities world-wide.

The Specialty Equipment Market Association (“SEMA”) is a non-profit trade association that represents over 7,000 mostly small businesses around the country that manufacture, distribute, and retail specialty parts and accessories for motor vehicles. The industry employs over 1 million Americans and produces performance, functional, restoration and styling-enhancement products for use on passenger cars, trucks, SUVs, and special interest collector vehicles. SEMA members market products that enable automotive and off-road enthusiasts to personalize the style and upgrade the performance of their motor vehicles, including everything from classic cars to four-wheel drive vehicles to dedicated race cars.

The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization of approximately 2,500 members seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations.

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

Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport.

The Colorado Off-Road Enterprise (“CORE”) is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region.

The Idaho Recreation Council (“IRC”) is a collaboration of Idaho recreation enthusiasts on the following activities: 4 x 4, Equestrian, Backcountry Aviators, Mountain Biking, Snowmobiles, Motorcycles, Rafts/Jet boats, ATV/UTV’s, RVers, Recreational Miners, and Rock Hounds. The Idaho Recreation Council is comprised of Idahoans from all parts of the state with a wide spectrum of recreation interest and love for the future of Idaho and a desire to preserve recreation for future generations of Idahoans. If you believe access is important to your recreation please consider joining a club in your area.

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.

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

Collectively, ORBA, U4Wd, One Voice, SEMA, TPA, CORE, CSA, IRC, NVORA, RwR and COHVCO will be referred to as “The Organizations” for purposes of these comments.

2. The Organizations are forced to support Alternative A as assertions critical to the Proposal are entirely unsupported by facts.

The Organizations are very concerned that the Proposal systemically makes assertions of generalized benefits to recreation but fails to connect these generalized benefits with actual management decisions and standards proposed. Often positions such as “more recreational use” would result from an Alternative when compared to current management are stated but not meaningfully addressed. This is a problem in isolation when addressing NEPA compliance, but this problem is greatly expanded given the recognition of a wide range of recreational uses identified in the Proclamation and that economic contributions from recreation are identified as an important value in the Monument.   The open-ended nature of the entirely new management standards for cultural landscapes compounds our concerns on the ability to provide even basic infrastructure to support recreation on the Planning area. If the Proposal cannot identify general areas to be improved and explain the general nature of the improvement, implementation of these standards will be impossible.

The Proposal fails to address the fact that existing management of recreational opportunities in the planning area has been found effective in protecting resources. Questions such as: “How could existing management be adapted to align with the Proclamation?” are simply never addressed.  After reviewing the Proclamation and identifying the numerous recreation opportunities identified, we are unable to identify if these opportunities area are even in an SRMA for protection and development.  An example of the Proposal’s systemic use of broad unsupported assertions of benefit to recreation is the summary of recreational access issues made in the Executive Summary of the Proposal which asserts as follows:

“Under Alternative B, the BLM and USDA Forest Service’s management decisions would support more recreational use by allowing for more development of visitor amenities in backcountry and primitive areas. This could increase visitors to BENM, which could increase or decrease economic contributions from recreation depending on the type of visitors and projected expenditures for the visitors.”^[1]

We are unable to identify any locations where designations associated with the expansion of recreational uses, such as an SRMA designations on BLM managed lands are expanded in the Proposal.  What the Organizations do find in every Alternative is a significant expansion of Lands with Wilderness Characteristics designations, or other restrictive new designations like ACEC designations for the entire planning area which would be a barrier to expansion of recreational opportunities rather than an improvement.  Every Alternative provided for the review expands the LWC designation by more than twice existing designations, which again causes concerns about the accuracy of these assertions.^[2]

Many of these newly proposed LWC areas are areas were previously found unsuitable for designation or management as an LWC in the 2008 Monticello RMP due to the recreational usages of these areas and various transportation routes in the area.^[3]   Appendix O of the 2008 Monticello RMP specifically identifies 21 different locations that were removed from possible LWC designation due to the high levels of routes and recreation present in the area. Given the uncontested nature of development in the Monument since 2008, any assertion of Wilderness Characteristics improving in the area lacks a factual and legal basis. This new expansion of LWC areas is provided without any substantiation or support from the Proclamation, which only mentions Wilderness three times when it is discusses existing Wilderness areas in the Planning area. Again, this type of detailed discussion is not provided, and clearly, this type of an expansion of recreational restrictions in every Alternative of management would be contrary to an assertion of expanding recreational infrastructure.   This type of inaccuracy gives the Organizations significant concern regarding any of the Alternatives Proposed.

The lack of support for any assertion of improved recreational access is not limited to just motorized recreation, but appears to involve every recreational activity reviewed in the Proposal. Rather than providing detailed discussions of how the Proposal is expanding recreational access, the Proposal makes the unusual assertion that decisions will increase recreational conflicts as follows:

“Alternatives A, B, C, and D would generally allow recreational shooting except in campgrounds or developed recreation sites, rock writing sites, and structural cultural sites (with the inclusion of WSAs and LWC under Alternative D). Alternatives B, C, and D would also prevent recreational shooting where prohibited under SRMAs, RMZs, or MAs. This management would continue to result in potential conflicts between user groups over recreational shooting.”^[4]

We are not aware of any situation where increased recreational conflict has led to increased access.  There are always winners and losers in these decisions. Clearly recreational shooting is a component of recreational usage on public lands, making this large-scale closure of opportunities difficult to align with any assertion of improved recreational opportunities.  It has been our experience that conflict with recreational shooting and most other recreational uses can be more significant than conflict between other uses.  Conflict around shooting starts at an immense level and move up from there.  While the Proposal recognizes the increased conflict that will result, again no resources are identified to address this issue. We are aware that recreational shooting opportunities can be developed to address generalized shooting closures on public lands.  An example of this type of strategy is exemplified by the efforts of the Arapahoe/Roosevelt NF in northern Colorado in addressing their unmanaged recreational shooting issues on the Forest.^[5] Again, no information or analysis is provided to streamline this type of discussion despite the fact Forests that have adopted this strategy have found the development of shooting facilities in association with landscape level shooting closures highly effective in addressing this issue.

Any assertion of streamlining recreational access is even more problematic when reviewing the USFS managed lands; significant portions of the USFS managed  planning area that are open to designated routes would be moved to a closed designation. Building any motorized recreation opportunity in these areas would now require an RMP amendment as part of site-specific planning, making this planning FAR more difficult.  Even if a project was building trailheads for hiking or other uses in these areas, this project would be more complex and time consuming after the changes proposed.  These designations and facilities for nonmotorized opportunities are useless if the public does not have motorized access to the areas. Building basic infrastructure for even basic access for other uses will be complicated in an area closed to motorized usage. The Organizations submit each of these designations makes any expansion of recreational access in any form more difficult and clearly does not facilitate expansion of recreational opportunities.

The ability to factually support an assertion of improved recreational access is limited given the large number of LWC and other restrictive types of designations are reviewed.  The Proposal continues these unsupported assertions of improved recreational access from management alternatives as follows:

“Under Alternative B, the BLM and USDA Forest Service’s management decisions would support more recreational use by allowing for more development of visitor amenities in backcountry and primitive areas. This could increase visitors to BENM, especially those who enjoy dispersed camping and recreating in more remote areas. Under Alternative B, there could be an increase in percentage of visitors who stay overnight on BENM (so that they are able to access the more primitive areas), rather than visitors who stay off of BENM. As highlighted in Table 3-119 and Table 3-120, a decrease in the percentage of visitors who stay off-site could result in an overall decrease in recreation-related expenditures, which could result in a reduction in economic contributions. On the other hand, if, under Alternative B, there is an overall increase in the number of total visitors to BENM, then there might be an increase in expenditures and economic contributions. The extent to which this change in recreation visitors and type of visitors would impact overall economic contributions would depend on the number of projected visitors and the change in percentage of visitor segments.”^[6]

The accuracy of the above assertions is immediately problematic when SRMA/ERMA designations under Alternative B is compared to existing management for the same area. The lack of factual support would  be exemplified by the Indian Creek SRMA, White Canyon SRMA and Beef Basin SRMA designated under current management for the development of recreational opportunities.  The problematic nature of the assertion is based on the fact each of these existing SRMAs is either entirely removed or downgraded to an ERMA with far less recreational based goals, despite the fact these existing management designations are consistent with the Proclamation.  Under the 2008 Monticello RMP, the Indian Creek SRMA is managed for the following general goals and objectives: ^[7]

“- Provide outstanding recreational opportunities and visitor experiences while protecting natural and cultural resource values through integrated management between the BLM, NPS, State of Utah, and the Nature Conservancy

-Provide for premier rock climbing experiences, outstanding OHV opportunities, scenic vistas, cultural site interpretation at Newspaper Rock, destination camping areas, and a gateway to Canyonlands National Park.

By the year 2012, manage this SRMA to provide opportunities for visitors to realize personal development and growth, enhanced lifestyle increased local tourism revenue and maintenance of distinct recreation setting character, providing no fewer than 80% of responding visitors and impacted community residents at least a moderate realization of these benefits: (i.e., 3.0 on a probability scale where 1 = not at all, 2 = somewhat, 3 = moderate, 4 = total realization).”

The Indian Creek SRMA also had the following specific  goals and objectives: ^[8]

“- Camping is prohibited in the Indian Creek riparian corridor from Newspaper Rock to approximately 1 mile downstream of the Dugout Ranch.

– Camp sites will be removed from the Newspaper Rock area and rehabilitated.

–  A picnic area will be constructed adjacent to the Newspaper Rock parking area.

– Camping along the Bridger Jack Mesa Bench is limited to designated sites.

– A new campground called Shay Mountain Vista Campground will be constructed.

– The area is unavailable for private and/or commercial use of woodland products, including on-site collection of dead wood for campfires. Campers must bring in their own wood for campfires.

– Campfires are restricted to fire rings where fire rings are available. In dispersed camping areas, where fire rings are not available, campfires are subject to “Leave No Trace” standards. No campfires are allowed in the Lavender Mesa ACEC.

– Rock-climbing routes in conflict with cultural sites will be closed.

– Camping fees will be charged if deemed necessary to provide needed facilities and services.

– Parking areas will be developed.”

The White Canyon SRMA is managed with the following general  goals and objectives under the 2008 Monticello RMP: ^[9]

“- Provide outstanding recreational opportunities and visitor experiences, while protecting natural and cultural resource values through integrated management between the BLM and NPS (including the Glen Canyon National Recreation Area and Natural Bridges National Monument).

-Provide a spectacular canyoneering recreational experience in a popular, world renowned and easily accessible slot canyon; including backcountry hiking and backpacking, remote camping, cultural site visitation and exploration.”

The Beef Basin SRMA is managed with the following general goals and objectives under the 2008 Monticello RMP:^[10]

“- Provide outstanding recreational opportunities and visitor experiences while protecting natural and cultural resource values.

– Provides a popular, remote, backcountry driving experience with primitive camping and cultural site exploration opportunities. Management focus for the SRMA is heritage tourism, traditional cultural values, and scientific research of prehistoric cultural landscapes.

– Provide a semi-primitive recreational experience for visitors to enjoy the world renowned cultural resources and scenic values. Use visitor  information and interpretation as a primary tool to protect sensitive resources, discourage vandalism, and encourage visitor appreciation of public lands.”

The Beef Basin SRMA is managed with the following general goals and objectives under the 2008 Monticello RMP: ^[11]

“Beef Basin SRMA (20,302 acres) (Map 9) is managed with the following prescriptions:

– Available for private and/or commercial use of woodland products (including on-site collection of dead wood for campfires).

– Open to disposal of mineral materials under special conditions.

– Available for oil and gas leasing subject to timing limitations.

– Livestock use will continue but may be limited if cultural resources are impacted.

– Available for range, wildlife habitat, watershed improvements, vegetation treatments and other surface-disturbing land treatments if consistent with management plan objectives.

– OHV use limited to designated routes.

– A car campground will be developed in Ruin Park for primitive camping.

– Primitive car camping areas will be designated in Middle Park, House Park, and along Beef Basin Loop Road, as well as other areas as necessary to control impacts to cultural resources.

– Until primitive camping areas are designated in this area, dispersed vehicle camping will be allowed in previously disturbed areas within 150 feet of designated routes.

– Campfires are allowed and are restricted to fire rings where fire rings are available. In dispersed camping areas, where fire rings are not available, campfires are subject to “Leave No Trace” standards.

– Dispersed campsites that impact archaeological sites will be closed.

– Cultural site visitation limited to designated trails.

– Groups larger than 20 people total are required to camp in designated areas. Human waste must be packed out.

– Manage as VRM Class III.”

Any assertion in the Proposal that recreational access will improve without these types of designations is problematic as there are no newly designated SRMA areas and several Alternatives almost entirely remove these SRMA designation from the plan or reduce them to EMRA designations with highly generalized requirements.  The Proposal position is directly contrary to our experiences and with BLM national guidance on the use of SRMA designations.  Many of these existing designations could have been easily updated or amended to come into compliance with the Proclamation.  When the proposed changes between existing management and Alternative B are reviewed there can be only one conclusion, which is that SRMA designations for recreational improvement and expansion have been entirely removed from management moving forward.  For this reason alone, we are opposed to Alternative B, as we are unable to understand how recreation will be protected in the Proposal. This is critical as recreational usage of the area is identified as a characteristic of the area to be protected and Alternative B is proposed to be the most advantageous for recreational usage of the area.

The Proposal’s SRMA and EMRA designated are often provide little to no specific guidance about secondary or indirect usages and related activities necessary to achieve the goals.  As an example, dispersed camping is consistently accessed with motor vehicles, regardless of whether camping is with a tent or similar infrastructure.  Most dispersed campers use a trailer to camp, and this means motor vehicle access must be provided in some manner, as we are sure the planners are aware of, management of dispersed camping has proven to be problematic throughout the region. Previous SRMA designations addressed these indirect factors by providing distances from roads where people could camp, requiring parking and other camping related infrastructure.    We are unable to identify any management designation in the SRMA in the Proposal that would allow for the development of even basic infrastructure to support designated dispersed camping like fire rings.  Basic guidance on how far dispersed camping would be allowed from roads, kiosk development, trash removal and other things commonly associated with dispersed camping simply are not addressed in the Proposal despite these issues being addressed previously.

The failure to provide this type of guidance is directly in conflict with the Proclamation but will also create immense conflict in the area. This type of conflict is on display in the Moab FO, immediately north of the planning area, where there is a lack of management standards to support the public’s desire to recreate on the FO was not provided.  As an example, the Moab RMP requires motorized users to park on trails and then access camping areas by foot.  Legally parking in this manner to camp immediately creates conflict with other trail users as often parking to camp results in trails being blocked as trails cannot safely allow passing.  Trail users have tried to go around parked vehicles to use  these dispersed camping sites and then are told they are off trail and routes are closed due to unacceptable impacts from this type of legal activity. The Organizations vigorously assert that managers of the monument must learn from these failures by providing greater detail in how decisions were made on specific components of standards. Rather than mitigating these issues, the Proposal expands the probability of larger and more intense conflicts as less guidance is given.

Our concerns around the failure to analyze changes such as moving from an SMRA to an ERMA type designation extend far beyond types of recreation allowed at sites. SRMA designations are a priority funding area for funding provided under the Land and Water Conservation Fund Program (LWCF). As LWCF was fully funded with the passage of the Great American Outdoors Act in 2018, significant reductions in SRMA acreage could greatly impact funding available for management. While National Monuments are also a priority funding under the LWCF program as well, a monument with a larger number of SRMA simply will be more competitive for this program. Given the collapsing land management budgets we have faced for decades, the Organizations must wonder why every effort would not be made to align planning efforts with funding criteria to allow this limited funding to be directed to priority areas.

The Organizations vigorously assert that recreation in all forms is protected by the Proclamation and has additionally required analysis in other Biden Executive Orders such as 14008 and 14057. Guidance on recreation management provided in the Proposal is woefully inadequate and, in many situations, existing SRMA type designations, with decent goals and objectives for management of the area, are simply removed entirely or reduced to ERMA designations with any reason provided. At no point does the Proposal attempt to replace or expand these resources that are being removed.  Naked assertions of improved opportunities are not a replacement for management with deliverable standards and definable goals nor are they sufficient for NEPA compliance.  This must be corrected simply to comply with the Proclamation and other Executive Orders requiring similar analysis for all management actions taken.

3. Executive Orders issued by President Biden specifically requiring economic analysis of agency actions and expansion of recreational opportunities have not been addressed in the Proposal.

Our concerns around the systemic failure to address recreational values for landscapes is further compounded when the various protections and analysis required by several Executive Orders from President Biden are reviewed.   The Organizations would note that EOs 14008  and 14057 simply are not referenced in the Proposal despite these Executive Orders being issued by the same president within months of the Proclamation requiring the planning effort.

The Proposal provides no meaningful discussion of how compliance with various standards in Eos was determined and this is in stark contrast to the analysis required for these Executive Orders as they mirror many of the sentiments raised in the Proclamation. A full review  and analysis of the various components of EO 14008 is critical to bringing balance to public lands and the Proposal is critical as there are three times recreational access and economic benefits of recreation are identified for improvement is specified in EO 14008.

§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.”^[12]

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

“The initiative shall aim to conserve and restore public lands and waters, bolster community resilience, increase reforestation, increase carbon sequestration in the agricultural sector, protect biodiversity, improve access to recreation, and address the changing climate.” ^[13]

§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.” ^[14]

Our position is the Proposal violates the mandate of 14008 to address recreational access and economic benefits of recreation to local communities. This must be corrected and addressed in the Proposal with required analysis and protections for recreational access.

The Proposals’ complete failure to address similar Executive Orders is not limited to a failure to address compliance with EO 14008.  EO 14057 issued by President Biden on December 13, 2021 are made.  The immediate concern over the failure to address Executive Order 14057 is again apparent when EO 14057 is actually reviewed. EO 14057 starts with this general statement of purpose:

“In responding to this crisis, we have a once-in-a-generation economic opportunity to create and sustain jobs, including well-paying union jobs; support a just transition to a more sustainable economy for American workers; strengthen America’s communities;”^[15]

EO 14057 has repeated and specific requirements to address economic contributions and impacts from agency actions as follows:

“c) reform agency policies and funding programs that are maladaptive to climate change and increase the vulnerability of communities, natural or built systems, economic sectors, and natural resources to climate impacts, or related risks; and” ^[16]

EO 14057 specifically addresses the need for incorporation of economic contribution in agency actions to create or improve sustainability of both the agency actions and management decisions. Again, the Organizations are unable to identify any attempt to outline how these requirements were complied with in the development of the Proposal as there is no discussion of how the asserted compliance was determined.

4. Cultural/historic resource analysis has not been performed.

The Proposal is tasked with creating a plan balancing many values after the Proclamation including wildlife, water, cultural and historical resources, scenic values and recreational values. Some multiple uses are of higher priority when the balancing of uses occurs and others are limited or removed under the Proclamation. Of the multiple uses generally available on public lands, the only general classes of values removed from analysis by the Proclamation is oil and gas exploration and drilling.  Even those values that are reduced or limited, such as grazing, are still provided detailed analysis. While some values are addressed in significant detail in the analysis, foundational information necessary to address critical values, such as cultural resources are not provided at all.  This is despite the Proclamation identifying  multiple classes of cultural resources, including cultural sites and cultural landscapes.  While we are familiar with the management of cultural sites, we have never addressed cultural landscape management and are unable to locate any regulations on this type of management.

The complete omission of analysis of cultural resources is directly contrary to the  Proclamation specifically requirements of maximum public involvement in the Process to develop the Plan. This maximum public involvement requirement is specifically stated  as follows:

“The Secretaries shall provide for maximum public involvement in the development of that plan, including consultation with federally recognized Tribes and State and local governments. In the development and implementation of the management plan, the Secretaries shall maximize opportunities, pursuant to applicable legal authorities, for shared resources, operational efficiency, and cooperation.”^[17]

This additional specific requirement of maximum public involvement in planning becomes immensely problematic as basic information required for NEPA, the Antiquities Act or APA is not provided at legally sufficient levels.  Even without the Proclamation, the Antiquities Act requires many values permitted in the planning area to be analyzed in the legally required manner. These requirements are expanded with the maximum public engagement requirements of the Proclamation and not reduced or removed.  Rather than maximizing public engagement on these designations, the Proposal provides no information at all despite the standards being entirely new to planning requirements.

An example of a priority usage of the area that is not addressed in the analysis is cultural/historic values and this creates an immense problem for the Proposal. We do not contest the BEC held meetings on a wide range of issues, the activities of a partner are not sufficient for NEPA or APA compliance.  The Proposal recognizes this fact as the BEC created its own alternative to the Proposal. The BEC is not a substitute for NEPA and also does not improve engagement for those that were not able to attend or participate in the meetings held by the BEC.

The Antiquities Act of 1906 (54 U.S.C. §§320301-320303) authorizes the President to proclaim national monuments on federal lands that contain a wide range of historic landmarks, historic and prehistoric structures, or other objects of historical or scientific interests and other values. At no point does the Antiquities Act allow planners to avoid NEPA compliance in identifying other values and their relationships to uses in the Monument.  The Proposal’s omission of cultural resources analysis has been catastrophically destructive to use of other values identified in the Proclamation, such as recreational values. NEPA requires analysis on how the competing values are balanced and this has simply not occurred with management of cultural resources in relation to other values identified in the Proclamation.  Providing an alternative that has little chance of adoption in NEPA from a partner group is not a replacement for meaningful public engagement as this alternative is only one of five alternatives provided.

The Organizations are intimately familiar with the management of cultural/historic values on public lands, and as a result we will clarify we are not asking for any site-specific information that would be protected based on the value of the site as a cultural resource. We are aware that significant information could still be provided without site specific information. We have participated in planning that: 1. Merely mapped Low/medium/high cultural values; 2. Other efforts have outlined what is cultural information already publicly available; 3. Some plans have provided information on  areas already inventoried;  and 4.  Other plans outline what locations have been found suitable for listing on the National Register of Historic places, what locations were applied to protection and found suitable, what areas have not been inventoried at all. We are unable to locate any information such as cultural information we have seen previously and are forced to conclude that all sites and possible sites were valued above all other opportunities and protected.

Even with this type of maximum protection assumption for cultural sites, we are unable to theorize what protections would be for cultural landscapes.  NEPA requires this information and decision-making process to be analyzed.  Prior to addressing the complete lack of compliance with NEPA requirements, APA compliance must be addressed as the Proclamation sought to create a new rule under the Antiquities Act to implement that authority, the Proposal is insufficient to satisfy administrative Procedure Act requirements. Courts have consistently applied the following standards for rulemaking by agencies:

“Procedure, not substance, is what most distinguishes our government from others. In the not-so-distant past, a government agency in the Soviet Union could impose controls on the production of commodities without bothering to involve the public in the decision making process. By contrast, a government agency in the United States must usually give notice to, and accept comments from, the public before undertaking to place manacles on the invisible hand. 5 U.S.C. § 553”^[18]

Given there is not even an attempt to reference regulations on a cultural landscape in the Proposal, the Organizations would vigorously assert this management is exactly the invisible hand of government that the 9^th Circuit has taken such a dim view of in their decisions. The requirement of rulemaking and public notice and comment for this type of action is not mitigated by the engagement of a third party or informal process.  This strawman  situation is clearly struck down by the 9^th Circuit as follows:

“We thus conclude that the Secretary’s rulemaking fails to satisfy the APA’s requirements because he has not demonstrated good cause for failing to give sufficient notice in the Federal Register of the weekly NO AC meeting and failing to allow the public to comment by means other than personal participation at the NO AC meeting….Thus, if the harmless error rule were to look solely to result, an agency could always claim that it would have adopted the same rule even if it had complied with the APA procedures. To avoid gutting the APA’s procedural requirements, harmless error analysis in administrative rulemaking must therefore focus on the process as well as the result. We have held that the failure to provide notice and comment is harmless only where the agency’s mistake “clearly had no bearing on the procedure used or the substance of decision reached”^[19]

Even if the BEC is claimed to have created this cultural landscape management standard, this does not resolve the public notice and engagement requirements under the APA or NEPA. The immensely problematic nature of this failure to comply with APA requirements is compounded by the fact that the Proclamation clearly and specifically requires “maximum public involvement,” we are unable to participate in any planning as basic planning terms are simply not defined.

While a “cultural site” is defined in the Proposal a “cultural landscape” is not defined in the Proposal, which creates immense problems when NEPA sufficiency is addressed.   The need for a single definition as  a starting point of analysis for a cultural landscape is critical as many different organizations have created definitions for this, and often, these are significantly different. We are aware that UNESCO, The European Landscape Convention Treaty, the National Park Service, and the City of San Diego all have separate and distinct definitions they apply.  There is extensive scholarly discussion on the proper definition of a landscape even is.^[20]

Most definitions have varying factors and values to be protected and some classes of cultural landscapes have high levels of human activity across the entirety of the landscape.  Without defining a cultural landscape,  we are unable to define its value in comparison to other values identified as important in the Proclamation for NEPA. Other basic questions such as:  “Is a cultural site more important than a cultural landscape?”  “What uses might be consistent with a cultural landscape but not a cultural site?” “Is the Proposal managing cultural landscapes under a single standard or multiple categories” simply cannot be addressed.

These questions are not academic but critical to the foundation of the planning effort. The need for a basic definition of a cultural landscape as a starting point in the NEPA planning process is directly evidenced by the fact a cultural landscape, as defined by UNESCO, encompasses wide-ranging uses of the landscape.  The UNESCO definition specifically identifies these categories as follows:

“CULTURAL LANDSCAPES. Definition

6. Cultural landscapes are cultural properties and represent the “combined works of nature and of man” designated in Article 1 of the Convention. They are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal.

7. They should be selected on the basis both of their outstanding universal value and of their representativity in terms of a clearly defined geo-cultural region and also for their capacity to illustrate the essential and distinct cultural elements of such regions.

8. The term “cultural landscape” embraces a diversity of manifestations of the interaction between humankind and its natural environment.

9. Cultural landscapes often reflect specific techniques of sustainable land-use, considering the characteristics and limits of the natural environment they are established in, and a specific spiritual relation to nature. Protection of cultural landscapes can contribute to modern techniques of sustainable land-use and can maintain or enhance natural values in the landscape. The continued existence of traditional forms of land-use supports biological diversity in many regions of the world. The protection of traditional cultural landscapes is therefore helpful in maintaining biological diversity. Definition and Categories

10. Cultural landscapes fall into three main categories, namely:

(I) The most easily identifiable is the clearly defined landscape designed and created intentionally by man. This embraces garden and parkland landscapes constructed for aesthetic reasons which are often (but not always) associated with religious or other monumental buildings and ensembles.

(ii) The second category is the organically evolved landscape. This results from an initial social, economic, administrative, and/or religious imperative and has developed its present form by association with and in response to its natural environment. Such landscapes reflect that process of evolution in their form and component features. They fall into two sub-categories: – a relict (or fossil) landscape is one in which an evolutionary process came to an end at some time in the past, either abruptly or over a period. Its significant distinguishing features are, however, still visible in material form. – a continuing landscape is one which retains an active social role in contemporary society closely associated with the traditional way of life, and in which the evolutionary process is still in progress. At the same time it exhibits significant material evidence of its evolution over time.

(iii) The final category is the associative cultural landscape. The inscription of such landscapes on the World Heritage List is justifiable by virtue of the powerful religious, artistic or cultural associations of the natural element rather than material cultural evidence, which may be insignificant or even absent.”^[21]

Given the diversity of the above definition, the Organizations will again assert the need for a single starting point for NEPA analysis. This definition is not provided in BLM regulations, the Proclamation or the Proposal.  Clearly if the three categories of designation are being applied in the Proposal, there are areas where expanding recreational access would be entirely consistent with the definition of a cultural landscape that is created by man. If the Proposal seeks to apply all three subcategories of the definition, then each subcategory should be mapped and identified along with permitted uses and levels of protection for each subcategory. This simply has not happened, and as a result, this portion of the Proposal falls well short of the maximum public engagement required under the Proclamation or needed to satisfy NEPA.

5. The Proposal’s range of alternatives is legally insufficient as a result of inadequate analysis of many issues.

The Proposal’s lack of integration of impacts of changes in management between expected current recreational usage and resources provided to users of the Planning area after implementation has directly impacted the very limited range of alternatives provided in the Proposal.  This range of alternatives is even more unacceptable as recreation and economics being identified as priority issues in the Proclamation.  Even the most development intensive alternative provided in the Proposal fails to provide any meaningful guidance for the developing and utilizing recreational opportunities in the planning area.

The failure to tie proposed changes in the Alternatives of the Proposal  to the impacts desired outcomes after implementation has resulted in a Plan being provided for public comment that has many viable options for management not being explored.  The Organizations believe these analysis flaws have resulted in a range of Alternatives being presented that simply bear no rational relationship to the planned usage or benefits that are currently accruing to the local communities from the recreational usage of the BENM 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.^[22]  When reviewing range of Alternatives provided in a NEPA analysis, the Court’s conclusions have consistently been summarized as:

“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.” ^[23]

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

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

Given the numerous critical terms such as a cultural landscape are not defined, the horribly inaccurate economic analysis and failure to provide any information on issues such as soundscape planning and ACEC designation clearly alternatives have been overlooked in the creation of the Proposal. The Organizations believe that these failures have caused a range of alternatives to be presented that is simply legally insufficient.   As an example of the failure to provide a range of alternatives, Alternative D makes the entire monument an Area of Critical Environmental Concern.   This would directly conflict with the Proclamation as many other uses are recognized in the Proclamation outside protection of natural resources.   Alternative E provides an alternative that in no way aligns with BLM or federal public lands management requirements.

The remaining alternatives are artificially limited in scope, as exemplified by the requirement to develop a soundscape management plan for the management area despite this not being required in the Proclamation. Rather the Proclamation mentions solitude in specific locations, not entire planning area.^[25] The need for a soundscape plan on every Alternative is further evidence of the predetermined range of alternatives provided,  there is simply no data provided to identify the need for this type of plan. It clearly is not required in the Proclamation.  The failure of the Proposal to provide a legally sufficient Range of Alternatives is further evidenced by USFS lands management under every Alternative provides for OHV closures to move from 46k acres closed to motorized to 177k for all Alternatives.

As addressed in greater detail in other portions of these comments, the failure of the Proposal to align assertions made with existing standards of management is problematic to the range of Alternatives.  The evaluations of the effectiveness of the current management standards make these existing management standards even more relevant.  Despite these conclusions existing management simply is not addressed in the Proclamation. Many recreational designations and existing decisions could be slightly amended and updated to comply with the Proclamation.  The effectiveness of OHV management in protecting cultural and other resources was clearly and directly stated in 2015 Monticello RMP Evaluation found OHV management effective to protect resources. This 2015 evaluation clearly stated this as follows:  ^[26]

These types of conclusions regarding the effectiveness of current management provide the basis for an Alternative of the Proposal that merely refines current management to align with the Proclamation.  Current management could simply remove oil and gas standards and move forward with implementation. This Alternative is even more viable if these management standards were updated and reviewed. Again, this simply has not happened, and rather than address this issue, current management is simply ignored.   The Organizations would like to understand how existing management has moved from success to such failure as to warrant no further discussion at all in such a short time period.  We would like to avoid these failures in the future in other locations.

6(a).  Economic analysis is identified as an important characteristic for management in the Proclamation.

As previously addressed, maximum public comment are required for development of the Plan.   Economic contributions from recreation and other uses are also clearly identified as an important characteristic of the planning area in the Proclamation as follows:

“While not objects of historic and scientific interest designated for protection, the proclamation also describes other resources in the area, historic grazing, and world class outdoor recreation opportunities—including rock climbing, hunting, hiking, backpacking, canyoneering, whitewater rafting, mountain biking, and horseback riding—that support a booming travel and tourism sector that is a source of economic opportunity for local communities.”^[27]

Given this clarity of the importance of economic contributions by the Proclamation as more important than other values in the area, it would be reasonable to expect a highly detailed and accurate analysis of this issue would be provided. This type of analysis would be critical in developing maximum public input on the Plan.  Despite these clear requirements, the Proposal fails to accurately address economic contributions of recreation. This failure is more egregious as reasonably accurate economic contribution information being developed in other planning efforts within the Monument being conducted at the same time.

In addition to these specific requirements in the Proclamation, economic impacts is a factor that also required to be addressed in the NEPA process. Despite this legal requirement of NEPA analysis being of heightened importance for the Proclamation, the Proposal falls woefully short of a legally sufficient legal analysis of this issue and well short of the analysis of an issue identified as an important sector of the planning area community.  Until large scale violations of the Proclamation and NEPA requirements can be resolved, the Organizations are unable to support any of the proposed Alternatives.

Economic contribution calculations are often complex and involve a balance of numerous factors that directly impact the spending habits of those sought to be studied, and often involve far more analysis and discussion than planning for other issues.  The basic complexity of any economic determinations and the size of the calculations to be made are summarized by the Western Governors Association’s recreational economic contributions study  as follows:

“How is “economic impact” calculated? Many people might think of a consumer buying equipment – a tent, fishing pole, ATV, bicycle, boat, snowboard or rifle. However, the impact is much more complex than the manufacture and sale of gear and vehicles. Gas stations, restaurants, hotels, river guides and ski resorts benefit from outdoor recreation. In total, equipment and travel expenditures represent billions in direct sales that create jobs, income, tax revenues and other economic benefits.”^[28]

The complexity of the calculations undertaken for economic impact calculations is immediately evidenced by the sheer number of pages required in most economic impact reports, as the explanation of the analysis process used to arrive at any final figure of any economic contribution analysis is often as valuable as the total economic contribution that is reached. Given the complexity of the process, we must question how the decision was made not to review the economic analysis contributions found in the Analysis with other planning efforts going on in the planning area at the same time.  This failure has allowed catastrophically inaccurate information to be provided to the public in the Proposal despite the numerous provisions mandating high quality information this issue.

6(b) Proper integration of economic information in the planning process is an ongoing issue in federal planning.

The proper integration of accurate economic information is often a weakness of the public land planning process in the Western United States, which has resulted in the creation of many other longer-term problems when decisions reflecting an imbalanced multiple uses are implemented.  The Organizations submit that the failure of many planning efforts to accurately address economic impacts and contributions was a concern addressed by the Proclamation in the planning area.   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.”^[29]

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.”^[30]

The Organizations believe our concerns regarding the Proposal and those expressed in the Western Governor’s Get Out West report virtually mirror each other. This concern must be addressed prior to finalizing the Proposal in order to avoid increases to many other management issues that were sought to be minimized with the creation. There can simply be no factual argument made that recreation has not been significantly undervalued in the Proposal and this has directed the range of alternatives provided for multiple use recreation in the planning area.

6(c)  Accurate analysis of economic impacts from planning is an exceptionally complex task to be addressed in every phase of planning.

As noted in the Western Governors’ Get Out West report, public lands are a major economic driver for many Western communities that are often completely surrounded by large tracts of public lands.  Usage of these public lands takes a variety of forms, but the largest user of public lands throughout the West is the recreational user. To ensure economic contributions of public lands to local communities and western states, relevant federal statutes and BLM planning documents implementing these statutes explicitly require economics to be addressed in every stage of the planning process.  The BLM handbook requires planners to document economic methods in two stages before the releasing draft alternatives. The Organizations believe these mandates simply have not been complied with in the development of the Proposal and will result in long term increases in user conflicts and degradation of assets and economic contributions, all of which are identified as priority concerns in the Proclamation.

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

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

(2) use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences;…” ^[31]

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

“A. The Planning Process

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

The Organizations must note that economic concerns are the only factor that is addressed in every step of the planning process laid out in the BLM planning handbook. Documentation of economic forecasts and analysis methodology is required in two separate stages before release of draft alternatives.   The required documentation of these concerns is exactly the information the Organizations seek to review but cannot review in the Proposal as required as the information provided is simply comically inaccurate.  While the critical nature of economic contributions in the planning process is specifically identified, these mandates were simply not followed or even addressed in the creation of the Proposal.

6(d)(1) The Proposal developed and relied on per-party spending assumptions that are shockingly low or entirely misleading.

As the Organizations have noted in previous sections of these comments, we have concerns about the accuracy of the social surplus component of the economic analysis provided in the Proposal. The Organizations must question why this type of information was provided or sought out when the conclusions of the basic economic analysis are simply lacking factual basis in any manner. As noted the Proclamation clearly states economic contributions are an important planning factor and makes no mention at all regarding concepts such as surplus economic values not captured in various uses.   The concepts of “economic contributions” and “surplus economic value” are two entirely separate concept for economic analysis with very little overlap.

Under the INPLAN model of economic analysis, and economic contribution is defined as follows:

“special modeling techniques are required in these cases to ensure that the results accurately reflect the addition/loss of just the projected/current level of Output of the industry of interest plus the indirect and induced effects in other industries.  This is the purpose of what we at IMPLAN term Contribution Analysis.  The basic idea is to disallow indirect or induced purchases from the industry of interest in such a way that does not affect the indirect and induced effects on other industries.”^[33]

Surplus economic values are defined as follows:

Economic surplus, also known as total welfare or the sum of consumer and producer surplus, is an important concept in economics that represents the total benefits that traders (consumers and producers) receive from participating in a market. It is defined by the difference between what consumers are willing to pay for a good or service (their maximum price) versus the actual market price, combined with the difference between the market price and the price at which producers are willing to supply the product (their minimum selling price).^[34]

While surplus value may be conceptually interesting, it by definition, cannot be an economic contribution.  Rather it is the difference between what is paid and what might be paid.  The Organizations would note that the Proclamation directly recognizes the importance of economic contributions to local communities but at no point raises the need to address possible surplus values in commodities on the planning area.

Many of the categories provided simply do not appear on the planning area with any intensity at all, such as downhill skiing.  We are aware the NRA adjacent to the planning area provides significant  motorized boating opportunities but we question how relevant this usage is for the planning area analysis. Again, why would these categories even be addressed as the Proclamation speaks to contributions to communities from activities on the Monument, not activities next to the monument that would be outside the scope of planning.

When the generalized review of recreation spending profiles provided by the Proposal is reviewed, several categories of information are provided that are so completely inaccurate as to render the analysis without  merit at all. While information that is largely academic in nature is provided along with information on uses not occurring on the planning area, many of the basic contributions recreational activity on the monument is simply not accurately addressed. A brief review of the accuracy of basic calculations and assumptions critical to understanding the economic contribution of outdoor recreation provides conclusions that cannot be defended factually or legally and are verging on simply impossible to achieve. The Proposal provides the following table outlining the conclusions that were used for the calculations of economic contributions for recreation: ^[35]

Our concerns on the accuracy of the economic analysis expands when the actual spending estimates used for calculations of economic contributions for recreational usages are reviewed. Many of these estimates are so low that we must question the factual accuracy of these estimates.  An example of the failure to provide an accurate analysis of resources critical to all forms of travel for recreation would be estimated fuel costs for various trips. Given the size of the planning area and the intense climate present throughout, bicycle and other means of travel to access recreational opportunities are so small it can be disregarded.  Before addressing the inaccuracies in these fuel cost assumptions provided in the Proposal, it is necessary to identify what a gallon of fuel costs in the Planning area. The average cost of a gallon of fuel per American Automobile Association fuel calculator in the planning area is as follows:^[36]

Application of this average fuel price to the Proposal leads to conclusions that are simply impossible to achieve.  The Proposal asserts that average local day trip spends $10.96 per trip for a group of 2.8 people. This means the average day trip is estimated to consume 2.77 gallons of fuel at current fuel prices. Given the size of the planning area and size of the group this estimated average is optimistic at best and probably inaccurate. When compared with USFS data used on the Manti/LaSal NF 2023 RMP revision the conflict is immediate as the Manti/LaSal estimated this cost at $15.87 for low spending profile forests in 2017.^[37]

This is a foundational failure of analysis that cannot be resolved, especially when the American Automobile Association estimated fuel costs were, on average, more than a $1 less per gallon in 2017 than currently.^[38] This means the Manti/ LaSal estimated average fuel consumption to be more than twice what is used in the Proposal even though these efforts assert to be calculating the same resources and values.

The immensely problematic nature of the assertions of the Proposal’s economic assumptions on this issue exponentially compounds when fuel costs of nonlocal travel are reviewed. The Proposal asserts that nonlocal day trips only spend $7.36 additional in fuel as calculated below:

This additional $7.36 in fuel costs translates to an additional 1.86 gallons of fuel to travel to the planning area from a nonlocal point of origin. For purposes of this calculation, we are applying the industry standard of a trip of more than 50 miles one way is a nonlocal trip.^[39] This amount of fuel is totally insufficient to transport a group of 2.8 people 50 miles in each direction.  You might be able to transport a single person on a motorcycle, which remains the most fuel-efficient vehicle on the roads, 50 miles each direction with 1.86 gallons of fuel, but even this is probably going to be unsuccessful.  Moving 2.8 people with these assumptions is impossible as multiple motorcycles are needed. This is a problem. The assumption that no fuel will be used once reaching the Monument is equally problematic.

The immensely problematic nature of much of the analysis continues when fuel costs for camping overnight are reviewed.  For reasons that defy logic, the Proposal asserts that non-local campers actually use less fuel than those simply day-tripping in the planning area. This conclusion is calculated as follows:

The immediate problem here is the assertion that fuel costs go down $1.27 for this trip, which lacks any factual merit given that these visitors are now carrying camping supplies, such as a tow behind camper, tents, sleeping bags and basic food for three people rather than merely supporting a day trip.  This is a large amount of supplies and fuel costs will increase rather than decrease.  Any assertion of fuel economy improving when towing a camper entirely lacks factual basis and simply will not be discussed further.  The Proposal asserts that these increased amount of  supplies will reduce the needed amount of fuel for the trip to 1.54 gallons of fuel.  Again, this assertion lacks any factual basis at all.

The lack of factual basis that appears systemic in the Proposal is not limited to estimates of fuel costs and usages.  The Proposal asserts that a local day trip recreational user will cost $7.26 per trip to use restaurants and bars per day. The immediate problem with this estimate is  the public is unable to buy a fast food cheeseburger type meal for one person for this amount.  The problematic nature of the asserted amount explodes when this estimate is allocated to a group of 2.8 people.  Expanding this to include three meals per day being purchased in this category of meal this would mean that each meal for 2.8 persons for $2.42 total.  This is completely without basis as you cannot buy three bottles of water for $2.42 as the Proposal estimate concludes that each person can obtain a meal for $.81.  Again, this is so inaccurate that it will not be discussed further.

The erroneous economic assumptions continue in the Proposal as it asserts that an average lodging cost for a group of 3 is $129.50 per day.  Again, we struggle to find any lodging single lodging for this price, and finding multiple rooms for an average of this cost is simply impossible. The Organizations are not stating this amount is impossible to achieve from an exceptionally frugal group of travelers.  We are asserting that an average of $129 per trip is not factually supportable. This problematic level of these lodging estimates amounts is further exemplified by a comparison of the spending amounts the federal government will reimburse to employees traveling in the area. Currently the federal reimbursement for nightly lodging is $210 per night. ^[40]  The fact these estimates are almost 50% lower  than federal per diem rates for lodging is immensely problematic.

Assertions of a group of 3 staying in motels can eat three meals at restaurants in the planning area for an average amount of  $53.86 per day is difficult to accept.  Estimates of food costs for campers are equally inaccurate as campers on the monument are estimated to spend between $8.73 on a restaurant experience  and $11.73 for a group of 2.8 people on groceries.  The conclusion reached is you can feed 2.8 people three meals a day in the planning area for a total of $20.46 simply cannot be defended regardless of where they are staying.  Campers staying off the Monument are estimated to spend $15.52 in restaurants and $14.10 on groceries to feed 2.8 people three meals per day. This total is only slightly better as it asserts the total raises to $29.62, which is still a shockingly low estimate to feed three meals to 2.8 people. The immensely problematic nature of these conclusions that the average recreational user can eat for these amounts of money in the planning area cannot be overstated.  As this is an average, this calculation asserts that a significant portion of these groups are able to eat for less than these amounts.  Again, the immediate conflict with calculations from the Manti/Lasal NF estimates cannot be overlooked as their estimates are 2-3x more for food despite occurring in 2017.

The astonishingly low nature of these estimates are immediate when compared to guidance from various travel organizations and other researchers. In Moab tourism guides estimated food to cost $37 per day per person. ^[41] For a group of 3 people this would equate to $111 per day on average for food. Per diem for meals  for federal employees traveling in the area is $69 per day per person.^[42] This means 3 employees traveling on per diem in the area would spend $207 per day for meals. Simply comparing per diem for federal employees to the estimated costs in the Proposal results in the conclusion that the per diem estimate is almost 7 times more than the average group can feed themselves for in the planning area. The Organizations are intimately aware of the inability of most federal employees to travel in the area and stay within their per diem amount as we host many trainings and events for federal employees annually. Again, these numbers and experiences cannot be reconciled with the estimates in the Proposal.

The Proposal’s failure to provide economic calculations that are factually possible to achieve the desired recreational outcomes must be addressed.  With a budget based on the amount of funds provided, the general public would simply never be able to achieve their desired recreational opportunities. Failures such as this are problematic for NEPA compliance and even more problematic for an activity that was a priority for analysis in the Proclamation. There simply cannot be an accurate assertion that recreational values have been properly balanced in the analysis when these values have been so completely undervalued.

6(d)(2)  Economic estimates used in planning directly conflict with agency research used for USFS planning in the Monument.

As previously noted in these comments, economic contributions from recreation are identified as an important factor to be addressed in subsequent planning in the Proclamation.  Many of these activity-based estimates used in the Proclamation are so low they render it impossible for the average visitor to achieve their desired opportunity with funds at the level asserted to be average. In isolation, this is a major concern.  When the planning efforts that have occurred on the monument at the same time as the Proposal are reviewed the conflicts in conclusions become unresolvable.

The Proclamation specifically requires that the USFS and BLM collaborate in the development of the Plan as follows:

“For purposes of protecting and restoring the objects identified above and in Proclamation 9558, the Secretaries shall jointly prepare and maintain a new management plan for the entire monument and shall promulgate such regulations for its management as they deem appropriate.”^[43]

Given this specific requirement in the Proclamation, alignment of spending profiles and other factors analyzed in the economic analysis would be required to comply with the Proclamation. Discrepancies between the calculations and conclusions of the two agencies would also have to be addressed.  Given the geographic overlap of the two planning efforts, collaboration of the two agencies and consistency of conclusions is critical to the planning for the Monument as a whole, as the Manti/LaSal NF also makes approximately 22% of the Monument Planning area. The need for alignment of basic conclusions for the planning area is driven by the fact that Manti/LaSal NF has been undergoing an RMP update over the same basic timeframe as the planning has occurred on the BENM, making the conclusion and process highly relevant to the Proposal. As the Organizations have also been involved in the Manti/LaSal NF RMP revision, we are aware that the spending amounts and profiles used in the Manti/LaSal plan are reasonable in their conclusions. The 2023 Manti/LaSal RMP revision outlines the basis for their calculations as follows:

“Recreation: Total annual recreation visits were obtained from the National Visitor Use Monitoring (NVUM) program (Forest Service 2016). For this analysis, an estimated 295,000 annual recreational visits were assumed. The distribution of visitor type (local or nonlocal visitor) and use type (for example, wildlife-related visits) from the most recent round of monitoring are used to estimate visitor spending. Average visitor expenditures by type were obtained from the Forest Service’s NVUM program (see White 2017 for methodology and descriptions).”^[44]

The conflict between the economic conclusions in the Proposal and the economic contributions of recreation in the Manti/Lasal are immense in nature and hugely problematic to the accuracy of the conclusions in the Proposal. As previously discussed, the spending profiles in the Proposal are simply so low as to lack factual basis. It is also highly relevant that each Proposal has been developed over the same timeframe, on the same landscapes and the USFS is managing about 22% of the Monument.  The USFS NVUM used by the Manti/LaSal planning team research reflected in the White 2017 research provides a detailed breakdown of various spending profiles based on the USFS NVUM research program as follows: ^[45]

The Organizations would be remiss if the immediate conflict between these profiles was not highlighted. The cumulative impacts of so many specific recreational usage types being poorly estimated is calculations that are off more than 50%.  The chart below represents a brief summary of the immense conflict between these works in their estimates of recreational spending profiles. Even when the low spending estimates of the USFS NVUM research is compared to the Proposal estimates,  the differences are unresolvable.

When the cost estimates of the Proposal are compared to the high spending forests and areas identified in the USFS NVUM research summarized in the White 2017 work, the conflict becomes exponentially worse between the two economic analyses. These comparisons are below:

With conflicts such as this between efforts occurring at the same time and allegedly being coordinated by planners, the Organizations must ask: How did these types of issues occur? Answering this question in isolation is problematic factually and will immediately conflict with the Proclamation.

The Organizations ability to support any of the economic  conclusions of the Proposal is  even more shaken as the research of White et al, created as part of the NVUM process, is 7 years old at this point. Given this passage of time inflationary adjustments to the spending profiles must be made. Since the works of White were completed in 2017, the Bureau of Labor Statistics estimates that inflation has increased price levels in 2023 by 29% on average.^[46] This adjustment of the White research only compounds the failure of the Proposal as follows:

The Organizations vigorously assert that when the most accurate categories of economic analysis calculations in the Proposal are 60% below estimates that are used by the USFS in the planning area this is an immense problem.  Errors such as this are why the Organizations are forced to support Alternative A of the Proposal.

6(e) The Proposal spending profiles cannot be aligned with the conclusions of partner research adjacent to the planning area.

The immense conflict of the economic profiles used for calculation of economic contributions from recreation are again highlighted when compared to research created by the USFS, BLM and state managers.  The Colorado Off-Highway Vehicle Coalition has partnered for decades with the USFS, BLM and Colorado Parks and Wildlife to provide high quality economic data for motorized recreation in the state of Colorado.  COHVCO recently updated this research and released a detailed analysis of these conclusions and process for use in planning.  A copy of this work is attached as Exhibit “2” to these comments. While the Proposal and the COHVCO research assert to be using many of the same tools, such as the INPLAN database the conclusions simply cannot be reconciled.  The alignment of the COHVCO research and the NVUM data that has resulted from decades of research and is outlined in the works of White also cannot be overlooked.

6(f). Estimates of consumer surplus values in the Proposal are of questionable value.

The Organizations commend planners for attempting to tackle the social component of economic analysis in spending profiles across user groups.  The Organizations agree that the value of simply knowing these opportunities are available is an important component of planning. While the consumer surplus of particular groups is interesting, the Organizations would be remiss if we did not point out the fact that certain user groups assert their recreational opportunities are priceless in nature and other user groups appear to be able to quantify their values much more accurately. The Organizations also would note that this calculation is not required under the Proclamation but an accurate calculation of economic contributions from recreation are required.

The Organizations have extensive experiences with the difference between an asserted social economic value and the desire to actually convert this surplus economic social value into a monetary value and an economic contribution that can be used for management and maintenance of the resource.  With the eroding budgets of USFS and BLM federally for basic operations, our members have started to be engaged by various states and other interests on how to replicate the OHV registration program that has become highly effective in Utah and other states. The desire has been to create similar programs for hiking, biking, camping and other uses. To date the motorized recreational community continues to be the only non-consumptive user group of public lands that have adopted the pay to play model. Many other user groups have been openly hostile to the concept of monetizing this type of surplus economic value for the benefit of public lands.

This makes our members question any asserted surplus value from opportunities on public lands, especially since the surplus value is asserted to be many times more than any registration or permit would cost annually. Through these efforts we have found that other interests who assert the highest consumer surplus in their opportunity are also the least willing to pay anything. The Proposal asserts that there is an average consumer surplus of value estimated to be $77.04  per person.^[47]  Our concern with this estimate is the fact that if the excess value was anywhere near this assertion in terms of dollars our requests for a 20 or $30 annual registration to support these opportunities should be an easy sell.  To date we have not seen any interest in any level of support despite some highly detailed meetings. This causes us concern about the value of these efforts and calculations.  While the calculation of this surplus economic value may be an interesting academic effort, these surpluses cannot hire staff, empty trash, grade roads or support basic operations in adjacent counties.  Again, we must question why this would be included as it is not required in the Proclamation, and it has been our experience that these estimates are not able to be converted into an actual economic contribution.

7(a). Soundscape planning is outside the scope of the Proclamation and entirely undefined in the Proposal.

Before addressing the concerns and challenges around developing a soundscape management plan required under every Alternative, the Organizations believe it is necessary to state that this requirement is largely a novel concept and clearly not worthy of inclusion in every Alternative. At no point does the Proclamation require the development of a Soundscape Plan and the Proclamation fails to mention sound or concepts such as quiet or  silence. Rather the Proclamation speaks to the solitude available in particular locations.  Levels of sound are one of many planning requirements required to be addressed in existing planning for the Proclamation, and as a result we must question why a soundscape plan would thought to be necessary.  It should be largely redundant to existing planning, as without a definition of what is required we again must ask how this requirement was thought to be analyzed sufficiently for NEPA purposes.

While the Proposal requires a Soundscape Plan at some unspecified time in the future, the Proposal is entirely silent on a definition of what a soundscape plan is, what factors would be addressed, and how would they be measured and managed.  This is highly relevant as we are unable to identify a soundscape plan currently effectively in place in the United States. We are aware of sound management efforts around airports and other activities in highly developed areas, but these are in no way similar to the Monument.  In an even more troubling development,  we are unable to identify any regulations, under the USFS 2012 Planning Rule or recent BLM Planning efforts that could guide the development of this type of a plan.  Would the Plan attempt to apply an existing model? How would the plan address protected usages that make sound?  These are basic questions that absolutely no guidance is provided regarding.

The Organizations are intimately familiar with the fact that many activities already have sound management standards in place through other agencies for the production of vehicles.  Various agencies have developed sound standards for the workplace, such as OSHA, FAA, FHWA, SAE and FIA.  We must ask how these will be integrated into this plan? How would conflicts between standards be resolved? Each of these existing managers has detailed processes for the measurement of sound, but often these are different processes addressing different issues and concerns. This is exemplified by the differences between  SAE 1287, which tests sound levels of a stationary vehicle, and SAE  J2567, which measures sound of a passing vehicle. The Organizations are intimately familiar with the highly technical nature of the management of sound, as it has been our experience that sound is one of the first issues raised in OHV management by those who are simply opposed to the use of OHVs in any manner. Sound can be heavily impacted by issues like topography, weather, humidity and many other natural factors.  Simply having a standardized tool for the measurement of sound would be a basic need for NEPA compliance.  This has not been provided or even discussed.

One of the foundational challenges we have encountered in the development of a soundscape type analysis is the perception of sound by the recipient and how it is classified. While sound is merely a transfer of energy across a medium, there is a huge difference in how sound is perceived.  Classification of the energy once received by the ear is highly subjective and difficult to consistently classify.  Sound that is enjoyable to the recipient of the energy is known as music.  Even defining what is and is not music has proven difficult as there are different types of music.  If the type of music is enjoyable the sound remains music, if it is not enjoyable to the recipient it immediately becomes noise and should be regulated.

The need for a single definition of a soundscape plan is again highlighted by the Proclamation as the need for national regulations on this issue are immediate when various questions foundational to a soundscape plan are addressed.  While there are workplace standards and standards for private lands under certain circumstances, we are not aware of any standards for public lands. NPS has limited standards but the planning area is not a National Park and is not managed by the NPS. Rather President Biden’s Proclamation clearly identifies the role of the NPS as follows:

“The Secretaries, through the USFS and BLM, shall consult with other Federal land management agencies or agency components in the local area, including the National Park Service, in developing the management plan.”^[48]

We are able to identify national parks that have attempted to develop soundscape plans but none of these have been completed.  Most research and efforts we have found have identified more problems with the concept than success.

We are very concerned that without national standards and guidelines for this type of plan, this effort would result in immense conflict between uses, at best would be hugely subjective in nature,  and would be problematic to defend in any legal action.^[49] Legally management plans that have attempted to manage sound on public areas have a low percentage of surviving legal challenges given the large number of protected Constitutional rights that can be impacted. We are unable to identify any portion of the Proposal that addresses how basic constitutionality of a soundscape plan would be achieved as one of the primary challenges to soundscape efforts has been Constitutionally protected frees speech of the public. Rather than avoiding the systemic failures that have plagued this effort, this requirement seems to embrace the desire to continue to plan based on inaccurate or non-existent requirements, such as the cultural landscape concept.

7(b) Soundscape planning exhibits the same lack of accurate analysis exhibited throughout the Proposal and sets a VERY poor precedent.

The Proposal also creates expectations for sound levels that are functionally impossible to achieve in any manner.  The Organizations have participated in professional sound testing as part of planning efforts in remote areas that are outside the scope of human created sounds, and this reporting simply does not align with any asserted planning or goals outlined in the Proposal.^[50]  The horribly insufficient nature of information currently available on sound in the planning area is represented by the following map on sound levels in the area: ^[51]

The problematic failure of this information is again immediately apparent, as major state highways are often estimated to have similar sound levels when compared to remote areas far removed from anything on the planning area.  While we do not contest that often these state highways may see limited amounts of usage, we also must recognize that the Federal Highways Administration estimates highway traffic at 70 to 80 dB.^[52] This level of sound cannot be aligned with the Proposal assertion that state highways are averaging 40 dB. The inability of the soundscape inventory to align with existing decisions is again highlighted by the fact that the corridors around these routes do not align in any way with the ROS designations around these routes.  ROS designations are required to address sound levels as one of the characteristics.  While these tools may not overlap completely, there should be a strong correlation with these designations and there clearly is not.

The Organizations concerns around the basic accuracy of the inventory expand as the most common level of sound asserted to be found on the Planning area is 32-37dB.  This is immediately problematic as light rainfall is commonly estimated to be 40 dB.^[53] When this is compared to the map above, the assertion that most of the area is quieter than a lightly falling rain becomes problematic. Without a good understanding of the current conditions, the Organizations must question the quality of analysis supporting the assertion for a sound plan for the area. Again, this soundscape management plan is asserted to be needed under every Alternative provided to the public, but given the poor quality of data available, any meaningful analysis of possible impacts to satisfy NEPA is simply impossible.

The Organizations are very concerned that the Proposal moves well outside the scope of the Proclamation on the issue of sound management. We are unable to identify any portion of the Proclamation where this type of effort is required or even addressed. While this planning effort is not required under the Proclamation, the Proposal immediately identifies that sound is OHV, drone and aircraft based.^[54] How were these impacts identified and measured?  Simply identifying the proper standards for measurement of sound has been a difficult undertaking in any planning effort.  The Proposal simply omits this step and makes the conclusions noted above. This is an obvious concern and sound from many uses will exceed the levels the Proposal seeks to allow. Clearly, there are other sources of sound that would need to be addressed, and often, sound simply does not translate to the solitude identified for certain sites in the Proclamation.

We are unable to identify any portion of the Proclamation that requires or hints at this type of requirement as the Proclamation only makes passing references to solitude available in several locations.  Low levels of sound and solitude are two very different requirements.  A large group of people can reduce their sound production to levels identified in the Proposal.  That same large group of people will never achieve solitude as the mere proximity of other people prohibits solitude.  Clearly, there is a significant difference between solitude and sound, and these requirements are already addressed with tools such as the ROS designations and Wilderness designations created by Congress that the Proposal already provides for.   The Organizations are also concerned that neither  of the planning documents currently in force for the area have any requirement for this type of soundscape plan. As a result, we must question the requirement for a soundscape plan in every Alternative, as we are unable to identify any requirement of this nature.

7(c) Unintended impacts from soundscape plan will be significant given the lack of basic data in the Proposal on this issue.

The Organizations are immediately concerned about the possibility of low-quality data being used in the development of a sound scape plan, as there is immense conflict between the assumptions used in the analysis of existing sound and the ROS.  This is immediately apparent when the ROS maps around state highways are compared to the levels of sound found around these state highways.  The ROS corridors are much wider than the sound level corridors and this causes immediate concern as Department of Transportation has well developed science on the activity of sound around highways.

The Organizations are also concerned that any attempt to manage the monument under a soundscape type plan could have massive unintended impacts. How would the soundscape plan allow for overflights of firefighting planes? Given the proliferation of wildfires in size and number across the planning area, this type of a question would be foundational.  How would the plan deal with activities off public lands, such as municipal fireworks display on holidays? The Organizations are unable to identify any analysis of these types of basic issues before the soundscape management plan was included in every Alternative of the Proposal.

8. Conclusion.

The Organizations are forced to support Alternative A of the Proposal and vigorously oppose each of the other Alternatives. These Alternatives often do not meet the purpose and need of the effort and often directly conflict with the Proclamation, such as a designation that would result in the entire monument being an area of critical environmental concern.  Our concerns with the Proposal extend far beyond mere purpose and need concerns, as the Proposal requires many new planning standards to be applied but lacks even basic definitions of these new planning designations.  While the Proclamation addresses cultural sites and cultural landscapes, we are unable to find any portion of the analysis that defines what a cultural landscape is or how this type of designation would be managed differently than a cultural site.   Not only does the Proposal fail to define basic terms critical to the Proposal, the cultural inventory provided is simply nonexistent despite cultural values being a management priority in the Proclamation.

The need for extensive development of accurate information on management priorities extends far beyond cultural resources  as the economic analysis provided with the Proposal simply cannot be rationally defended.  Often estimates are hundreds of percentage points lower than any estimates from credible sources. Often estimates provided are 7 times less than per diem amounts for that activity that are provided to federal employees traveling in the planning areas. These conclusions cannot be legally or factually defended despite economic contributions of recreation being specifically identified as an important factor for management planning in the proclamation.

The Proclamation failures of analysis extend into designations such as SRMA and ERMA designations. While the Proposal makes broad assertions of improved recreational access to the Monument as a result of the Proposal, when any attempt to reconcile current designations with proposed designations. Existing SRMA designations that have been found effective at protecting values identified in the Proclamation are simply entirely removed or significantly reduced in size and recreational benefits and deliverables are simply removed.  This type of management structure cannot be aligned with improved recreational access.

The Organizations would welcome discussions on development of an Alternative that complied with the Proclamation and provided high quality recreational opportunities and protected other values as well. This type of alternative could be developed largely based on existing management.    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.
Executive Director CSA
Authorized Representative COHVCO

Fred Wiley
President & CEO
ORBA

Eric Snyder
SEMA

Edward Calhoun
President
Colorado Snowmobile Association

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President – CORE
Chairman – One Voice

Sandra Mitchell
Executive Director, IRC

Steve Egbert
Chair – United 4 Wheel Drive Association

Matthew Giltner
Executive Director
Nevada Offroad Association

Clif Koontz
Executive Director
Ride with Respect

^[1] See, Proposal at pg. 3-378

^[2] See, Proposal at pg. ES-15.

^[3] See, Monticello FO RMP; Lands with Wilderness Characteristics  2003 Update; Appendix O at pg. O-4

^[4] See, Proposal at pg. ES-26.  Emphasis added.

^[5] A link to this forest level effort on the Arapahoe/Roosevelt NF  is found here : Forest Service (usda.gov)

^[6] See, Proposal at pg. 3-379

^[7] See, 2008 Monticello RMP at pg. 106.

^[8] See, 2008 Monticello RMP at pg. 107

^[9] See, Monticello Field Office 2008 RMP at pg.  109

^[10] See, Monticello Field Office 2008 RMP at pg.  110

^[11] See, Monticello Field Office 2008 RMP at pg.  110

^[12] See, President Joe Biden, Executive Order 14008; 86 Fed Reg 7619 At pg. 7626 (2021)

^[13] See, EO 14008 at pg. 7627.

^[14] See, EO 14008 at pg. 7628

^[15] See, President Joseph Biden; Executive Order 14057; 86 Fed Reg. 70935(2021).

^[16] See, EO 14057 at pg. 70938.

^[17] See, Biden Proclamation at pg. 57332

^[18] See, Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir. 1992)

^[19] See,  Riverbend Farms Pg 1487

^[20] As an example: Cultural Landscape – Geography – Oxford Bibliographies

^[21] World Heritage Centre – Cultural Landscapes (unesco.org) Operational Guidelines for the Implementation of the World Heritage Convention pg. 85. Operational Guidelines for the Implementation of the World Heritage Convention (unesco.org)

^[22] 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.

^[23] See, Citizens for a Better Henderson v. Hodel, 768 F. 2d 1051, 1057 (9th Cir. 1985).

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

^[25] See, Biden Proclamation at pg. 57325.

^[26] See, DOI, Bureau of Land Management; Monticello Field Office; RMP Evaluation September 2015 at pg. b-18

^[27]  Monument Proclamation at pg. 57322

^[28] See Western Governors Association report; A snapshot of the Economic Impact of Outdoor Recreation; prepared by Southwick and Associates; July 2012 at pg. 1.

^[29] See, Western Governors Association; Get out West Report; Managing the Regions Recreational Assets; June 2012 at pg.. 3.

^[30] See, Get Out West Report at pg. 5.

^[31] 43 U.S.C. §1712

^[32] See, BLM LUP Handbook H-1601-1 at Appendix D pg. 2. Emphasis added.

^[33] Economic Impact, Economic Contribution, and Export Base – IMPLAN – Support

^[34] Economic Surplus Definition & Examples – Quickonomics

^[35] See, Proposal at pg. 3-373

^[36] See, AAA Gas Prices Accessed 5/23/24

^[37] See, White, Eric M. 2017. Spending patterns of outdoor recreation visitors to national forests. Gen. Tech. Rep. PNW-GTR-961. Portland, OR: U.S. Department of Agriculture, Forest Service, Pacific Northwest Research Station. 70 p. Pg 13.  A complete copy of this work is attached as Exhibit “1” to these comments.

^[38] AAA Gas Prices

^[39] See, White, Eric M. 2017 supra note 36.

^[40] 2024 Moab, Utah Federal Per Diem Rates (federalpay.org)

^[41] As an example of these estimates: Moab Travel Cost – Average Price of a Vacation to Moab: Food & Meal Budget, Daily & Weekly Expenses | BudgetYourTrip.com

^[42] See, 2024 Moab, Utah Federal is Per Diem Rates (federalpay.org)

^[43] See, Proclamation at pg. 57332.

^[44] See,  USDA Forest Service; Manti/LaSal RMP revision EIS;  Appendix G Socio-Economic Methodologies F.6-57 (Aug 2023).

^[45] See, White, Eric M. 2017. Supra note 36

^[46] CPI Inflation Calculator (bls.gov)

^[47] See, Proposal at pg. 3-365

^[48] See, Biden proclamation at pg. 57332

^[49] See, Ward v. Rock Against Racism, 491 U.S. 781 (1989); See Also;  Montgomery v. State; 69 S3d 1023(2011); See Also; People v Arguello; 765 NE2d 98 (2002).

^[50] A copy of an example sound report from a planning effort is attached as Exhibit “3”.

^[51] See, Proposal Figure 3-34

^[52] Living With Noise | FHWA (dot.gov)

^[53] Decibel Level of Common Sounds: Comparison Chart + Calculator (May 2024) (soundproof.expert)

^[54] See, Proposal at pg. ES19

Federal Highways Administration
Via Portal @ http://www.regulations.gov,
Docket: DOT-OST-2023-0037 & DOT-OST- 2023-0040

RE: Notice of Proposed Waiver of Buy America Requirements for De Minimis Costs, Small Grants, and Minor Components, Docket # DOT-OST- 2023-0037 & DOT-OST-2023-0040

Dear Sirs:

Please accept these comments as a further supplement to the comments submitted by the Organizations regarding the original proposal, the 2023 expanded request for information on waivers and the relationship of the waivers to the Recreational Trails Program. (“RTP”). For the purposes of these comments, we are referring to the current request for information as “the 2024 Proposal” in order to clarify which step of the multiple year effort we are addressing.  The Organizations have not resubmitted the highly detailed information provided in our previous concerns simply to avoid repetition of information. While this information is not resubmitted, those issues and factors remain a concern for our interests should there were revisions that could impact the de minimis waiver process outlined in the 2023 determination that was previously recognized. It is the Organizations understanding that the 2024 request for information is addressing the general waiver for manufactured products that was issued in 1983 by FHWA and its relationship to the most recent revisions to the BABA provisions for all agencies from the Infrastructure Act. We hope this proposal brings clarity to the entire process as since the 2023 determination, it has been our experience that there is a lot of confusion and conflict around the administration of the RTP program as a result of the multiple revisions of regulations that has recently occurred.

We are providing this input in the hope of resolving conflicts and building an administrative process that is efficient and effective in achieving goals of specific programs across FHWA and large-scale compliance with BABA requirements and other requirements, such as minimum acquisition thresholds.  We have also had the opportunity to meet with FHWA representatives on this issue and welcomed the candor of these discussions.  We hope these meetings fostered understanding of our concerns and issues as our concerns are far from the normal concern that FHWA encounters in the administration of their programs and efforts. It is our understanding that the current request for information is specifically seeking input around the withdrawal of the general waiver that was issued by FHWA in 1983 in response to previous BABA requirements for manufactured projects. We do not believe that the de minimis waivers previously provided for in the BABA compliance process are at issue and may be entirely outside the scope of the current request for input.

1. De minimis waivers process must remain for all materials and grant programs.

During our preliminary review of the Current Request, concerns around possible impacts to small projects waiver that were previously authorized was a major concern.  We were thrilled that both documents clearly stated that the de minimis waivers would be carried through permanently.  We mention this preliminary review as many of the administrators we have reached out to are in varying degrees of alignment with the conclusions in the most recent versions of the Proposals.  Some states have taken a very narrow approach to defining the temporary nature of the 2023 waivers, while other states have applied a very broad definition of the temporary nature of the waivers. This has created conflicts and confusion in the administration of programs we are involved with, and we hope these conflicts are resolved with the 2024 Proposal. While we are aware our programs are a tiny portion of programs FHWA administers we hope this information provides clarity and information to FHWA administrators that can supplement input from other parties and allow for the creation of the effective complaint programs.

As we have previously discussed in greater detail, the expansion of the BABA provisions without a process to avoid overly burdensome regulations on the small projects would simply force the programs we operate under to cease to function. Expansion of BAB provisions without de minimis waivers would be exceptionally bad for these hugely successful small projects our Organizations consistently undertake for public benefit.  Our initial concerns were removed when the portions of the 2024 Proposal addressing small projects was reviewed. The Organizations vigorously support the outline of the relationship between de minimis waivers and removal of generally applicable waivers for manufactured products outlined on pg. 17797 of the Proposal. This portion of the Current Request was helpful in creating an understanding of what is and what is not within the scope of the current effort.  The Organizations support the rational and concerns outlined in this summary as without the de minimis waiver, the impacts to small projects could be overwhelming. Basically, these projects would cease to exist. While these waivers may be a small concern in terms of the rulemaking, this waiver process is critical to the success of many programs that fund small projects.  While we are most directly concerned with RTP, we are also aware that there are many other FHWA that would significantly benefit from these waivers as well. The Organizations support for the de minimis waivers extends to those other programs as well, even if our input focuses on the RTP program most consistently.

2. Highly detailed process that simply does not align well with small projects and more particularly RTP program.

With regard to the 2024 Proposal, the Organizations are impressed by the detailed history of the many intricacies and complexities and general evolution of these discussions on BABA type provisions that have spanned decades. A significant portion of the 2024 Proposal appears to be addressing the generalized waiver for manufactured goods issued by FHWA in 1983. While this information is impressive, the fact that the process of proving BABA compliance is HIGHLY complex and often driven by analysis of individual pieces of equipment or materials in concerning. It is for this reason we are voicing our support for the continued application of the minimum acquisition thresholds in the administration of the grant process by FHWA. The de minimis process is simple and will streamline the implementation of any program as applicants and administrators will be able to understand the program and the project specific waiver easily.  This is a significant difference from the highly complex and almost transactionally driven process that has been applied previously. This efficiency should not be overlooked as again we are seeing confusion among administrators in how to apply the 2023 waivers for small projects. Administration should be consistent across state boundaries to allow for the effective administration of the basic tenants of the programs.

3. Barriers to BABA and tracking materials have diminished but still exist.

As the Current Request outlines in great detail the 1983 BABA waiver was issued based on the inability of manufacturers of equipment to effectively track the origin of materials that they are using in order to prove BABA compliance.[1]  The Organizations would agree that this process has improved since 1983 but it has been our experience that this process remains a major barrier for smaller projects  and smaller manufacturers of the highly specialized equipment and resources that are funded with RTP grants. These simply are not huge multinational companies building these pieces of equipment but rather small companies who have developed equipment to address challenges they have faced in trail maintenance. Often production of these highly specialized pieces of equipment may only be 5-10 units per year.  Materials are often simply sourced from general retailers in small amounts and those general retailers are unable to provide any sourcing documentation even if the materials were produced a few miles down the road.

The inability to document the source of products as BABA complaint is significant even when manufacturers are not involved. As we previously identified in greater detail, many of our projects are not buying materials but rather using naturally available materials for the project and are frequently using trees and materials on site to complete trail projects. Bringing in outside resources simply is not possible or cost effective due to the remote nature of the work being performed.   We simply are not able to envision a process where BABA certification could be achieved within these project parameters.  This is again a major difference from the traditional FHWA project that warrants discussion and continued application of the de minimis waivers.

Even when our projects include the acquisition of more commonly available equipment, manufacturers are unable to certify that a single unit is built with BABA compliant materials. As an example, Kawasaki has built their OHVs in Nebraska since the early 1970’s and Polaris has traditionally been built in Minnesota.  Even with clearly identified BABA manufacturers we are unable to obtain BABA certification for these units, as we simply do not buy large numbers of these units. This is a barrier to the goals of any project being achieved in isolation.  This impacts of this issue have been greatly compounded over the last several years, as there have been significant issues with the supply chain to dealers generally. These supply chain issues have caused us to try to obtain equipment or materials that were simply available. The incentive for dealers to provide any additional documentation was weakened greatly as there was one unit that could be sold literally dozens of times without any additional paperwork.  Our volunteers struggled to find any unit to fill their needs, and this was made more difficult given the additional complexities of funding that have been encountered. While this issue appears to have been resolved generally, there is no guarantee this issue will not return at some point in the future. Again, this warrants the continued use of the De Minimis waiver in the manner previously allowed.

4. De Minimis waivers are not generally applicable waivers.

The Organizations do feel compelled to address one concern that was raised in the current request for information, mainly the preference against general applicability waivers that has been specified in the most recent round of BABA requirements.[2] This is generally based on the provisions provided in §70914(d) of the Infrastructure Act.   The Organizations would vigorously assert that the de minimis waivers are not a general waiver but rather a highly specialized waiver process that is based on specific factors and addressing specific issues that result from the management of small projects. The de minimis waiver is also statutorily mandated under the NDAA and repeatedly reaffirmed and updated by Congress.  There are extensive regulations regarding the applicability of the factors generally found in 2 CFR part 200.  The applicability of this de minimis waiver has been the topic of almost constant updates from the Office of Management and Budget. The updated policy manual from OMB for agency staff is 16 pages in length. This level of analysis and guidance is simply not required for a generally applicable waiver. The Organizations would again reaffirm the need for a simple and streamlined process for the administration of these small grants, as minimization of the administrative burden for these small projects can be a critical component of these projects’ success.  If there is too much burden our volunteers simply will not pursue the grants. That would be a significant loss for the public interest these small programs have been highly successful in addressing.

5. Conclusion

It is the Organizations understanding that the 2024 request for information is addressing the general waiver for manufactured products that was issued in 1983 by FHWA and its relationship to the most recent revisions to the BABA provisions for all agencies from the Infrastructure Act. We hope this proposal brings clarity to the entire process as since the 2023 determination, it has been our experience that there is a lot of confusion and conflict around the administration of the RTP program as a result of the multiple revisions of regulations that has recently occurred.

We are providing this input in the hope of resolving conflicts and building an administrative process that is efficient and effective in achieving goals of specific programs across FHWA and large-scale compliance with BABA requirements and other requirements, such as minimum acquisition thresholds.  We have also had the opportunity to meet with FHWA representatives on this issue and welcomed the candor of these discussions.  We hope these meetings fostered understanding of our concerns and issues as our concerns are far from the normal concern that FHWA encounters in the administration of their programs and efforts. It is our understanding that the current request for information is specifically seeking input around the withdrawal of the general waiver that was issued by FHWA in 1983 in response to previous BABA requirements for manufactured projects. We do not believe that the de minimis waivers previously provided for in the BABA compliance process are at issue and may be entirely outside the scope of the current request for input. The Organizations are also open to discussion on possible contingencies or guardrails to narrow the scope of any waiver, but we believe a waiver is necessary to streamline our acquisitions and efforts.  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

Fred Wiley
President & CEO
ORBA

Steve Egbert
Chair
United 4 Wheel Drive Association

Matthew Giltner
Executive Director
Nevada Offroad Association

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President
CORE

Sandra Mitchell
Executive Director, IRC
Authorized Representative, ISSA

Edward Calhoun
President
Colorado Snowmobile Association

Michele Stevens
President
Alaska Snowmachine Association

Nick Haris
Government Relations
American Motorcyclist Association

[1] See, Current Request at pg. 17796.

[2] See, Current Request at pg. 17790.

Bureau of Land Management
Via Planning Portal ONLY

Re: DRAFT PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT FOR UTILITY-SCALE SOLAR ENERGY DEVELOPMENT, DOI-BLM-HQ-3000-2023-0001-RMP-EIS

Dear Sirs:

Please accept this correspondence as the input of the above referenced Organizations with regard to the BLM’s Draft programmatic Environmental Impact Statement for Utility Scale Solar Energy Development. (“The Proposal”).  The Organizations would like to recognize agency efforts in the development of the Proposal, as the scale of analysis and information to be aligned and processed is overwhelming. The Organizations vigorously support development of sustainable resources and have been actively involved in efforts to achieve these goals for decades.  However, the Organizations are deeply concerned that the Proposal suffers from many of the same systemic failures of analysis that resulted in the failure of previous efforts seeking to achieve similar goals on a smaller scale.  An example of this type of repeated failures in analysis  between this effort and previous efforts is the assertion in the Proposal that economic analysis of possible recreational impacts is a site-specific issue.  Another example of similar failures in analysis is the failure of the Proposal to recognize the inherent imbalance of information available on competing characteristics of these areas. While the Proposal does capture some recreational values, it falls well short of analyzing and protecting all recreational values and interests from possible impacts.

When the Proposal is reviewed, the cumulative impact of these analysis failures is immediately apparent.  Easily accessible economic analysis raises significant problems for the Proposal’s conclusions. These failures create a situation where major sectors of the recreational economy will be more heavily impacted by solar development than sectors that contribute less economic benefit to local communities simply due to the imbalance of factors being reviewed. The possible geographic relationship of these impacts is not addressed.  As an example, some states have no utility level solar projects to create any revenue but are  relying heavily on recreational revenues, while other states are far more balanced in terms of economic contributions from the two uses. The economic costs of issues, such as transmission lines and other distribution equipment  will be hugely different simply due to the levels of infrastructure available.

Some states have already achieved sustainable energy goals for their citizens and essentially the Proposal would ask them to shoulder as disproportionate percentage of the burden on recreational opportunities of other states that have not achieved their renewable energy goals.   Clearly the impacts of significant management change in these two situations are VASTLY different and this is not discussed at all.  These are factors that Programmatic NEPA are required to address. Beyond simple compliance with NEPA, there are several Executive Orders that the require similar analysis which the Proposal asserts it is in compliance with but these failures remain. Simply addressing this type of systemic impact to recreation and recreational economic contributions could be provided and has not been.

The Proposal also fails to recognize that the designations put in place to incorporate and protect recreational access are horribly out of balance with the management resources applied when protecting wildlife and other resources.  While modeled habitat for species is easily available for almost every species, there is no corresponding factors to analyze for recreation. Any assertion there is mapped habitat for recreational usage is simply lacking factual basis as recreational value is highly related to the chosen recreational pursuit and often trail specific. Some factors used in an attempt to reflect recreation, such as the SRMA designations in RMP, fails to recognize that there are RMP that are so out of date that there are no SRMA designations even discussed in the planning area. Often other designations such as ERMA type designations are used in planning.  Frequently land managers have chosen to address recreational issues with site specific NEPA when RMP are badly out of dates, Simply due to the comparative speed and efficiency of site specific NEPA when compared to revising an RMP.  Site specific NEPA and related designations must be reflected in the recreational values of the Proposal and simply have not been.  The result is some values being entirely protected and other values being disproportionately impacted by possible solar development simply due to the amount of data available for analysis.

While many values with far more accurate and extensive data resources are addressed in the Proposal with mandatory protections in site specific planning to occur subsequently, recreation is not provided similar protections.  Not only will recreational access be disproportionate impacted but the visitation will decline most significantly in areas used by the highest spending profiles.  Without these basic issues being addressed, we are unable to support any alternative provided. We are asking that Alternative 3 is modified to provide additional protections for recreational values to reflect the imbalance of existing tools to analyze recreational values at this scale.  and also protect against the massive economic impacts that could result from the failure of the Proposal to accurately address these factors. These values could be protected if “no net loss in recreational opportunities” was required in subsequent site-specific planning as would bring recreational values to a similar level of protection in the Proposal with other values being balanced.

1a.  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 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. AMA District 36 (“D36”) is a volunteer-based non-profit organization of motorcyclists and like-minded enthusiasts who organize and enhance responsible family recreation and exercise environmental conservation for the purpose of promoting today’s activities and protecting our sport for the future. AMA District 367 (D37) is a nonprofit organization where we are dedicated with providing our members fun, family oriented events, and protecting the rights of our members to be able to enjoy the sport of motorcycling. District 37 adheres to the highest safety standards and practices and has been involved with protecting the rights of motorcyclists for over 80 years. The Unlimited Off-Road Racing (UORR)league was formed by The Martelli Brothers in 2023 after more than a decade of successful desert off-road race promotion, including The Mint 400, The UTV World Championship and The California 300. The league was formed to promote the sport of desert off-road racing, the off-road industry, and to expand the reach of off-road companies beyond the industry and into the homes of every off-road race fan, globally.  Collectively, TPA, NORA, CSA, CORE, IRC, RwR, ISSA, D36,  D37, UORR, AMPL  and COHVCO will be referred to as “The Organizations” for purposes of these comments.

1(b). Mapping layers were too dark to allow detailed review.

Prior to addressing our concerns around the Proposal in more detail, the Organizations must raise concerns around the mapping that has been provided with the Proposal.  While we welcome the GIS based interactive on-line mapping tool, this mapping became VERY difficult to use because of the layers for various values largely obscuring most lands marks once they were turned on. The poor transparency of the layers in relation to landmarks made it very difficult for our members to identify landmarks necessary to identify areas and designations on areas important to them.  Even when zoomed in major state highways were often unable to be identified once the layers were turned on.

The Organizations would ask that in the future both interactive GIS type maps and paper pdf type maps be provided to the public for review.  In this situation the use of .pdf style static maps would have been acceptable as we are looking at large areas and not fine detail. Without the landmarks the GIS based online resource was almost impossible to use for even landscape level review.

2. How was decision to resolve the need for utility scale solar projects in the manner proposed found to be correct?

As noted above, the Organizations have been involved in the development of landscape scale renewable energy projects previously.  Many of our members have been involved in site specific sustainable energy projects, like wind farms, dams and smaller solar fields. For purposes of these comments, the Organizations will focus on landscape level efforts but would also note that many of the issues we have encountered on landscape level efforts align with smaller scale projects as well.  ORBA representatives were actively involved with the DRECP since its inception as they were appointed to the DRECP committees by then California Governor Schwarzenegger.  In the development of the DRECP, planners experienced several unforeseen foundational issues,  mainly that the public was supportive of renewable energy as an abstract  concept  but then was unable to support many of the foundational cornerstones for the DRECP project. At the policy level of the DRECP, there were higher levels of sensitivity and opposition to some areas and almost none in others.   Individually, the public supported solar projects, but just not if these projects would impact their values or desires negatively. For many factors the areas with low levels of individual and systemic opposition were simply outside the scope of analysis for the DRECP effort.   In the DRECP and the Proposal decisions sought to place renewable energy in sites that have larger scale opposition. For motorized users the DRECP consistently sought to place large solar fields in areas that were Congressionally protected or provided highly valuable sand dune type recreational experiences simply because recreational values were not accurately addressed in the effort.

Over the almost decade of time spent on the DRECP effort, a consistent policy question plagued the entire effort. Mainly, is the development of large standalone solar fields isolated from communities something the public supports? The DRECP effort never addressed this basic question and the Proposal again fails to recognize this type of social conflict. Over the life of the DRECP consistently became  a stronger and stronger negative answer from most of the public. These issues are socially based conflicts that NEPA is mandated to address.  This opposition centered generally around two issues. The first socially based issue was most of the public would support solar farms in developed industrial areas or on the roof of their home as they thought that this was a use consistent with the levels of usage in the area already. Public support eroded quickly when these types of projects were situated in more remote areas, where large solar developments were inconsistent with existing usages. We are unable to identify any discussion of this type of issue in the Proposal, as the Proposal simply starts from this model of developing greater sustainable power infrastructure in areas that were less intensively developed.

Socially based public concern over the development of the stand alone solar farms only increased as the public understanding of the geographic relationship of the impacts and benefits of the project developed. The smaller communities that often were asked to be the site of these large solar farms expanded their opposition to the DRECP when they understood that they would be losing opportunities on public lands in their back yard but the power that was being developed was being shipped to a community that was far away and not losing any recreational opportunities.  The failure of the burdens of these projects and benefits to align is highly evident in the Proposal and is a major concern for many of our members.

Could this geographically based social conflicts and imbalance of values be the result of the factors used to identify areas that could be developed for solar farms? Yes. Some states have a long history of legislatively protecting certain resources on public lands without truly understanding the impacts of their efforts, while other states have chosen to provide more flexibility in the management of public lands. This flexibility provides significant benefit to many uses, such as recreation and renewable energy. Many communities that maintained this flexibility did so to provide opportunities for all forms of recreational activity.  The values structure developed in the Proposal to identify suitability shifts the burden of these unintended  impacts from the areas that failed to recognize the need for flexibility to areas that maintained flexibility.  This values structure is going to create immense conflict moving forward as recreational opportunities will be lost locally and benefits will not be provided locally to offset these lost opportunities.

This type of social conflict has been involved in public lands and NEPA for decades and has been historically known as the “not in my back yard” issue or syndrome or urban/rural conflicts. These concept have been evolved and refined for planning purposes.  Often in the recreational community it is distinguished between a personally based conflict on the recreation site between two users or a larger discussion of if a particular recreational pursuit should occur at all.  Historically this has been reflected as the personal user conflicts or socially based user conflicts. Other interests This type of evolution of analysis has been critical in addressing and or resolving these types of conflicts in planning efforts. Ignoring this type of conflict simply does not work.

Other issues have addressed this, challenges with different names but similar tools.  As an example, in the wildlife management area, these types of challenges have been consistently recognized as well. For wildlife management decisions this challenge has been summarized as follows:

“However,  although  human  actions  are a pervasive influence on species’ distributions, persistence, and  richness  (Linnell  et  al.  2001;  McKinney  2008),  conservation decisions routinely emphasize only biological and physical factors. Despite  repeated  calls  for  better  integration  of  social  and  ecological approaches (eg Berkes et al. 2000; Ostrom 2009), the practical  application  of  social-  science  information  has  been  scarce  and  uneven,  with  generalizations  limited  across  time  and   location.   This   point   was   emphasized   in   a   recent   Intergovernmental  Science-  Policy  Platform  on  Biodiversity  and  Ecosystem  Services  (IPBES)  publication,  in  which  it  was  stated that “the design of governance, institutions and policies rarely takes into account the diverse conceptualization of multiple values of nature and its benefits to people” (IPBES 2018).”[1]

When these historical challenges in landscape level management decisions are aligned to the Proposal there are immediate problems as the Proposal fails to recognize that no one wants a large solar farm in their back yard. While small solar panel projects on residential roofs might be ok with most people, solar farms face a large challenge in acceptance.  What the Proposal seeks to develop is a plan where the larger communities that cannot have a large solar farm in their back yard for many reasons can justify moving that solar farm to some one else back yard and then seeks to justify this decision through a variety of factors to create credibility. While residents in large communities may simply not have recreational opportunities in there area, or those opportunities have been protected through various designations, this decision  has little impact to the their recreational opportunities.  Smaller communities often draw residents because of the availability of recreational opportunities and now these are being lost to benefit interests far away from that community.  This is by definition socially based conflict and is a VERY real problem for the Proposal. Again, these are social conflicts issues that are required to be addressed in the NEPA process but are omitted from the Proposal.

The second issue that created socially based public concern around the DRECP process was the small percentage of the total power need that could be resolved with implementation of the entirety of the DRECP process. Public support for this general course of management further eroded when the  effectiveness of the DRECP effort  in providing significant power to meet goals and objectives of the community needs was identified.  Many of the participants opposition to possible impacts in areas where large solar farms are inconsistent with generally lower levels of development only grew when they found that these projects would often provide an infinitely small portion of the power needs for the community. Again,  the Proposal fails to provide any guidance on even a general range of sustainable power that would result from the full implementation of the Proposal.

The Organizations are unable to find any discussion of how these type of landscape level social conflict issues would be avoided, mitigated or have been resolved in the development of the current Proposal. While the Proposal starts from a position that utility scale solar energy development projects are the correct course forward for the development of solar energy projects, this conclusion has not been reached in previous large scale solar projects we have been involved with. Rather the public seems to support more dispersed renewable energy projects at a much smaller scale than is being reviewed in the Proposal.

3(a). Unintended impacts and restrictions to recreation from imbalances in data scope and quality  must be avoided.

The Proposal appears to start with the erroneous position that all factors and values being balanced in the Proposal have equally accurate data with similar levels of development. The Organizations would vigorously object to this starting position as we believe it is entirely incorrect.  The Organizations are intimately aware that landscape level plans, such as the Proposal, that are  overly prescriptive or do not properly balance data streams and data quality can create large amounts of unintended social conflicts despite the best of intentions. Accuracy in analysis can  resolve social conflicts, and that analysis accuracy often includes addressing imbalances in the quality and scale of data available for the analysis of various factors being analyzed with management protections.  Factors with less data or lower quality data often get more protections to try and achieve balance on the ground.  Many factors already have these types of standards in the Proposal. Recreation does not despite recreational usage and future recreational value of areas  being a value FAR less developed than many of the other values that have landscape level protections. This situation must be analyzed and resolved with management tools and protections to avoid unintended impacts.

While there are many ways that wildlife and conservation values can be mapped and protected, we are not aware of any method for the mapping of comparative recreational values in a similar manner. As an example of the inherent imbalance of data availability is the comparison of possible habitat for species on the Endangered Species Act is some of the most expansively investigated components of the NEPA analysis and federal land management process. Any assertion that recreation or other values can be similarly mapped with similar quality and accuracy as other conservation values completely lacks any factual or legal basis. This imbalance must be addressed in the NEPA process and this has not even been attempted. If it cannot be resolved, protections should be put in place to mitigate impacts.

Given the lack of comparable data development for recreation, the Organizations must immediately question how recreational values have been sufficiently addressed in order to comply with the new data quality requirements in NEPA.    These data quality provision of NEPA specifically require high quality data in the NEPA process as follows:

‘‘(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;

(F)consistent with the provisions of this chapter, study, develop, and describe technically and economically feasible alternatives;”[2]

Given the obvious flaws that result from recreational values relying almost entirely on SRMA designations, compliance with this NEPA requirement really cannot be achieved.  This flaw further expands as other values in the lands are reviewed.  The Proposal appears to assume that all National Conservation Areas and other special designations are excluding solar energy development. Again we must question this assumption as our experience is each of these special designations is a balance of various values in the area.   Many designations only exclude extractive mining or timber or other activity. As an example, the recent proclamation by President Biden regarding the Camp Hale area in Colorado only prohibits oil and gas leasing for 20 years on more than 300,000 acres of the area known as the Thompson Divide.[3] It is silent on possible solar development in the area.

Again, these are factors that must be addressed in the Proposal as many designations only exclude certain activities and solar farms may be within the scope of allowed activities in the special designation.  This type of balancing of values in the management of these areas is and protection of various characteristics of the area  is required to address the comparatively low quality data available to address the two competing values for these areas.  Not only is recognition and resolution of this imbalance of the comparative scope and quality of information required under NEPA, this type of balance must also be struck as often recreational access is improved with collaborative efforts in energy development and recreational access. This is exemplified by the fact there are many RMP that have no SRMA even designated but these areas have been repeatedly been included in landscape level species planning, such as has occurred for Sage Grouse and other species.

The similarity of DRECP process and methodology used to develop the Proposal cannot be overlooked as DRECP started with identification of every conservation type designation and failed to meaningfully address recreational issues. For purposes of these comments, we are only addressing recreation and conservation values in relation to sustainable energy in isolation despite the fact there are dozens of competing uses for these areas. At no point did the DRECP even attempt to address the complete imbalance in the scope and quality of existing analysis of the two competing values.   This imbalance in the scope and detail of resources to address values to e protected placed recreational advocates and interests in an inferior negotiating  position  from the beginning of the DRECP process.

The failure of the DRECP model to address this imbalance of resources available for management decisions also forces energy development into areas that tend to be more heavily used by large numbers of recreational users.  Often areas that are suitable for energy development are areas with the largest amount of management flexibility. This management flexibility makes these areas more suitable for more intense recreational activity.  As an example, the Proposal excludes Wilderness Study Areas from areas that are suitable for energy development.  We will not address the fact that many areas may be been inventoried for WSA suitability and found unsuitable since the inventory but that issue is not addressed in the Proposal. Simply accepting that WSA’s do allow these exclusions of solar, these designations also preclude development of recreational infrastructure to support opportunities such as camp grounds, developed trail heads, open OHV areas, shooting ranges for example. As the site specific planning moves forward with this erroneous assumption,  this will result in solar projects and recreational infrastructure projects to be in more conflict than any other value that is attempted to be balanced in the Proposal.  Conservation values simply will not come into conflict with solar developments simply due to the decisions made in the landscape effort.

Our years of involvement with the DRECP development made us aware of other problems that can result  when facts being analyzed are simply out of balance in both the scope and quality of information available for analysis.  In the DRECP development often alternatives sought to include new recreational prohibitions without explanation, such as the exclusion of all motorized usage around NTSA routes. While this standard was included in the final version of the DRECP, the Supreme Court struck down the landscape scale exclusion of multiple uses around routes designated under the National Trail System Act in their Cowpasture[4] decision of 2019. While this issue was addressed it still highlights what can happen when recreational access and issues are not meaningfully addressed. While we do not see any indication of this particular issue in the Proposal, we believe this is an example of an unintended impact that must be avoided.

3b. Unintended impacts will result  simply from poor data or badly out of  date management plans.

The Organizations are concerned that the Proposal primarily appears to rely on SRMA specific designations to address important recreational areas. While there are many designations discussed to protect wildlife or conservation values, such as designated habitat. Proposed wildlife habitat, NRA designations and WSA/WCA designations,  the only tool available to address intensive recreational usage of areas is the SRMA. The need to address possible RMP designations such as this is an example of the structural imbalance in the resources that are available to compare recreational opportunities and other values. The Wilderness Act mandates a complete inventory of all public lands for possible designation with every major federal action. There is simply no comparative process for recreation and many other values even available for review. This imbalance again warrants inclusion of recreational standards that protect recreational opportunities from unintended impacts from solar development.  Again these types of protections have not been provided for recreation but have been provided for many other uses that have far more information to analyze.

The Proposal does provide one analysis tool to reflect recreational values, which is the SRMA designation.  The Organizations assert this tool is wholly insufficient to use to address recreational values of lands.   It has been our experience that the SRMA designations are almost exclusively created in newer RMP plans, generally 15 years or less in age.  This is a major change from earlier RMP and MFP efforts, where this type of designation would have been used on a VERY limited basis and many older RMP designated no SRMA at all. If SRMA areas were designated they are exceptionally small in size and commonly fail to relate to current conditions or desires on the ground simply due to the passage of time. As an example,  in the State of Idaho 12 of 21 RMP are more than 30 years old and in Utah 8 of 21 RMP are more than 30 years old.  If SRMA are designated at all, they are horribly small and fail to reflect current conditions on the ground in the area.

BLM Field Offices with badly out of date RMP  often address recreational access, and many other issues, with site specific NEPA or other management tools rather than an SRMA type designation.  Some older plans have captured important recreational opportunities through the use of ERMA type designations rather than SRMA designations simply because the plan is horribly out of date.  These ERMA are functionally SRMA on the ground and the difference is in name only. This has often been done on the recommendation of State or National BLM offices who lack the resources to undertake an update of RMP.  Numerous Field Offices have undertaken large scale travel planning or site-specific efforts around recreational access such as Recreational Access Management Plans and other tools.  The Organizations vigorously assert that these planning tools must be addressed in the Proposal and again these other decision making processes simply are never mentioned.

The Organizations believe that incorporation of the variety of site-specific tools that have been developed to provide management structure in areas with RMP that are simply horribly out of date must be provided for in the Proposal.  Asking the recreational community to accept closures in an area that was recently identified as a priority recreational area in site specific planning will only create immense conflict between interests.  While inclusion of these other management decisions would resolve a limited number of possible impacts from poorly based management decisions, it does not resolve our concerns as many of these planning efforts have been found to be entirely insufficient to protect recreational access.

3(c). Important values of these areas are often not consistently addressed.

The possibly of unintended impacts to recreational values resulting from recreational values  not being accurately reflected in the Proposal are compounded when the comparative weight of protections provided for other management decisions and values  is compared to recreational protections.   The Proposal often appears to  fails to consistently address all multiple use values it is asserting to protect in its analysis. This causes concern that the analysis and protection of all multiple use values has not occurred in the Proposal. Frequently the Proposal only addresses ecological values in its analysis as the following provision clearly states:

“• An alternative design feature, a state-implemented conservation measure, or plan-level protection is determined to provide equal or better protection for ecological resources.” [5]

There are numerous other locations in the Proposal where similar imbalances in values are identified. This imbalance in value is not limited to the analysis of factors and competing landscape values in the Proposal.  It is unfortunately carried through the process into he protections that are specified for various uses as the Proposal  only provides specific protections and guidance on ecological values that could be impacted. An example of the elevation of conservation values above all other multiple uses is evidenced by the highly specific standards for the possible designation of areas of possible ecological value as follows:

“In addition to the design features, the following mitigation measures may be useful in avoiding, minimizing, and/or mitigating some impacts on vegetation (and other ecological) resources:

• • Project developers shall, to the maximum extent practicable, site projects close to energy load centers, urban areas, and major transportation infrastructure to minimize large-scale impacts and fragmentation of open spaces.
  • Project developers shall, to the maximum extent practicable, site projects on previously disturbed lands, brownfields, retired agricultural lands, and other disturbed areas instead of undisturbed, natural habitats to avoid and minimize impacts on remote, undisturbed lands.
  • To the maximum extent practicable, project developers should avoid state-identified priority or critical habitats.” [6]

The above example of elevation of some values above others occurs far too frequently in the Proposal. Similar protections for other values are simply never provided in the Proposal, which is a massive concern given the failures in the development of the Proposal to accurately capture high quality data for recreation.  The failure to provide balanced standards  for values and the clear standard to push solar development to “other disturbed areas” will create nothing but immense conflict with all forms of recreation.  Visitation and recreation on BLM generally occurs on areas that are already disturbed.  This needs to be corrected and all values should be protected equally. Too often the Proposal reverts to a position that ecological resources being specifically addressed and other values, such as recreation are not addressed.

3(d).  Open OHV areas have value and can be HIGHLY sought after but are not addressed in the Proposal.

The Proposal failure to develop high quality data and a balanced model of for solar and recreation on public lands creates a situation where recreation will compete with a large solar power project. This conflict will be intensified as  numerous recreational opportunities generally not being reflected at all. An example of a highly valued recreational opportunity that is not reflected in the values system of the Proposal is the recreational opportunity provided in Open OHV areas.  Often these opportunities are occurring in areas that have not been subjected to planning or if they are identified in management plans they are identified with an ERMA designation rather than an SRMA designation simply due to the large size of these areas. Often open areas are large sand dune type riding opportunities, but may also be smaller areas such as those provided for rock crawling or trials motorcycle type riding.

Under the management model for siting of these large solar project, opportunities associated with open OHV areas are provided little or no value to the users of these areas.  The comparative low value placed on these opportunities  is completely in conflict with the value users place on these areas. Often these are some of the most sought after opportunities given their highly unique experiences provided and the development of other lands that previously provide similar opportunities. Further reductions in these opportunities will again only create conflict between interests and values in these lands and opportunities.  This type of conflict must be avoided and could be minimized with a no net loss standard for recreational values in subsequent site specific NEPA being put in place.

4(a). Executive Orders issued by President Biden specifically requiring economic analysis of agency actions and expansion of recreational opportunities have not been addressed in the Proposal.

Our concerns around the systemic failure to address recreational values for landscapes is further compounded when the various protections and analysis required by several Executive Orders from President Biden are reviewed.   The Organizations would note that EOs 14008  and 14057 has been referenced numerous times in the Proposal without meaningful discussion of what these EOs actually require. Rather than the Proposal accurately addressing this EO, compliance with the EO is simply stated to have occurred with exceptionally generalized references.

The Proposal provides no meaningful discussion of how compliance with various standards in Eos was determined and this is in stark contrast to the analysis required for these Eos. Executive Order # 14008 issued by President Biden on January 27, 2021 would be an example of an EO  that is partially summarized in the Proposal followed by a cursory assertion of compliance with the EO in the Proposal.  Most commonly this EO is identified as the source of the “30 by 30” concept but it entails FAR more than just that standard as this Order is 27 pages long. A full review  and analysis of the various components of EO 14008 is critical to bringing balance to public lands and the Proposal is critical as there are three times recreational access and economic benefits of recreation are identified for improvement is specified in EO 14008.

§214 of EO 14008 clearly mandates improved recreational access to public lands through management as follows:

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

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

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

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

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

While EO 14008 spans more than 27 pages of specific requirements, the Proposal asserts 14008 can be summarized as follows:

“It is also consistent with and responds to E.O. 14008, Tackling the Climate Crisis at Home and Abroad (86 FR 7619) issued in February 2021, which states that it is the policy of the United States:

“to organize and deploy the full capacity of its agencies to combat the climate crisis to implement a Government-wide approach that reduces climate pollution in every sector of the economy; increases resilience to the impacts of climate change; protects public health; conserves our lands, waters, and biodiversity; delivers environmental justice; and spurs well-paying union jobs and economic growth, especially through innovation, commercialization, and deployment of clean energy technologies and infrastructure.”[7]

Any assertion of alignment of this summary with the actual requirements of EO 14008 would be inaccurate factually and legally, despite this assertion being made 9 different times in the Proposal. Our position is the Proposal violates the mandate of 14008 to address recreational access and economic benefits of recreation to local communities. This must be corrected and addressed in the Proposal with required analysis and protections for recreational access.

The Proposals’ complete failure to accurately reflect the scope of the mandate of various Executive Orders issues is not limited to just the assertion of compliance with EO 14008.  Throughout the Proposal, repeated highly generalized assertions of compliance with EO 14057 issued by President Biden on December 13, 2021 are made.  These unsupported assertions are represented by the following example:

“In addition, this effort addresses E.O. 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability (86 FR 70935), issued in December 2021, which directs the federal government to lead by example to achieve a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide no later than 2050.”[8]

The immediate conflict of this assertion is again apparent when EO 14057 is actually reviewed. EO 14057 starts with this general statement of purpose:

“In responding to this crisis, we have a once-in-a-generation economic opportunity to create and sustain jobs, including well-paying union jobs; support a just transition to a more sustainable economy for American workers; strengthen America’s communities;”[9]

EO 14057 has repeated and specific requirements to address economic contributions and impacts from agency actions as follows:

“c) reform agency policies and funding programs that are maladaptive to climate change and increase the vulnerability of communities, natural or built systems, economic sectors, and natural resources to climate impacts, or related risks; and” [10]

EO 14057 specifically addresses the need for incorporation of economic contribution in agency actions to create or improve sustainability of both the agency actions and management decisions. Again, the Organizations are unable to identify any attempt to outline how these requirements were complied with in the development of the Proposal as there is no discussion of how the asserted compliance was determined.

4(b).  Accurate analysis of economic impacts from planning is an exceptionally complex task to be addressed in every phases of planning.

To ensure economic contributions of public lands to local communities and western states are meaningfully addressed, relevant federal statutes and BLM planning documents implementing these statutes, explicitly require economics to be addressed in every stage of the planning process.  The BLM handbook specifically requires planners to document economic methods in two stages before the release of draft alternatives. The Organizations believe these mandates simply has not been complied with in the development of the Proposal and will result in long term increases in user conflicts and degradation of assets and economic contributions.

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

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

(2) use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences;…” [11]

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

“A. The Planning Process

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

The Organizations must note that economic concerns are the only factor that is addressed in every step of the planning process laid out in the BLM planning handbook. Documentation of economic forecasts and analysis methodology are required in two separate stages before release of draft alternatives.   While the critical nature of economic contributions in the planning process is specifically identified, these mandates were simply not followed or even addressed in the creation of the Proposal.0.

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

In addition to the Organizations concerns around compliance with the previously referenced Executive Orders the Proposal is simply asserting to be in compliance with, the Proposal compliance with NEPA requirements is problematic as well.  The Proposal fails to meaningfully address economic impacts and contributions from the Proposal with a detailed statement of high quality information, which is required for NEPA compliance. 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.” [13]

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

“Cumulative impacts can result from individually minor but collectively significant actions.”[14]

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 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 NEP regulations to EIS review.  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.”[15]

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

“Misleading economic assumptions can defeat the first function of an EIS by impairing the agency’s consideration of the adverse environmental effects of a proposed project. See,  South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1011-12 (5th Cir.1980). NEPA requires agencies to balance a project’s economic benefits against its adverse environmental effects. Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1113 (D.C.Cir.1971). The use of inflated economic benefits in this balancing process may result in approval of a project that otherwise would not have been approved because of its adverse environmental effects. Similarly, misleading economic assumptions can also defeat the second function of an EIS by skewing the public’s evaluation of a project.”[16]

The Court in the Hughes River decision invalidated an EIS  based on an error in economic contribution calculations of approximately 32%.[17]  Given the significant conflict that has already been identified and failures of analysis in addressing these conflicts, the 32% threshold of error in calculations could easily be exceeded in this proposal, despite the numerous assertions of impacts such as this being addressed.

The Organizations were able to identify numerous existing federal analysis, including some from the BLM itself, that would cause significant concerns for unintended impacts to existing revenue streams that could result from the current modeling of areas for solar suitability. This conflict could not be more evident than the model reliance on the SRMA designation as the largest tool for recreational protection, especially as many RMP are horribly out of date and simply have no SRMA designated in the planning areas.    While this creates the appearance that these areas might be highly suitable for solar development, we would assert these areas are badly in need of an RMP update and not solar development.

4(d). Economics are poorly analyzed and possible landscape level impacts are not addressed.

As noted previously in these comments, the Proposal repeatedly generally asserts its overall compliance with various Executive Orders.  The Organizations were HIGHLY frustrated that the economic analysis provided with the Proposal was facially insufficient as it only covers a few paragraphs in its analysis of possible impacts to recreation. The only economic analysis provided for possible recreational issues in the Proposal simply asserts that impacts would be highly localized in nature as follows:

“5.15.1.4 Recreation

Concerns exist that solar energy development may affect recreation in the vicinity of solar energy facilities. Estimating these impacts is problematic, however, because it is not clear how individual solar energy facilities in each state would affect recreational visitation and visitor spending, and nonmarket values (the value of recreational resources for potential or future visits; Springer and Daue 2020). While it is clear that some land in each state would be no longer accessible for recreation, the majority of popular wilderness locations, and other BLM-administered lands such as WSAs (wilderness study areas), SRMAs, LWCs, ACECs, and National Monuments and National Conservation Areas (see Section 5.16.1.1) would be precluded from solar energy development. It is also possible that solar energy developments in each state would be visible from popular recreation locations, possibly reducing visitation and consequently affecting the economy of each state.”[18]

The Organizations would object to this rather dismissive analysis of economics around possible impacts to recreation from the standards in the Proposal,  as there are clear challenges that the Proposals faces on this issue.  With even a cursory review of existing economic analysis the failure of the analysis in the Proposal and model of solar suitability provided these issues are immediately evident. Existing BLM documentation and analysis clearly identifies that some states already have significant economic benefits from solar energy development as follows:

Many states have almost zero solar revenue but huge amounts of recreational revenues [19] Simply recognizing this situation would have been highly valuable for the public as clearly expanding solar energy projects into areas where impacts are already existing would be a highly relevant option in some states. In other states, any solar development would be an entirely new project and face higher levels of possible conflicts. It is concerning that most states analyzed have ZERO solar energy projects in place currently but already have HUGE economic benefits from recreation. Failing to recognize this existing data in the Proposal is disappointing at best. Clearly this level of analysis is insufficient to comply with the specific mandate of EO 14008 or EO 14057, which the Proposal asserts to be in compliance with. This level of dismissive economic analysis falls well short of the requirements of economic analysis for NEPA compliance. This simply must be remedied.

4(e).  Weaknesses in the proposal modeling compound the possibility of unintended economic impacts of the Proposal.

As the Organizations have addressed previously, we are concerned the current modeling of recreation and energy suitability will result in disproportional impacts to recreation when compared to other uses.  These impacts will be more severe on developed or multiple use recreational areas, simply due to the fact that the usage of these areas has been clearly identified by the Department of Commerce as the largest economic drivers of economic contributions.  Areas that are available for multiple use recreation are used much more frequently by users who spend significantly more money that those that choose to pursue recreational opportunities in areas with higher levels of protections.

The Department of Commerce’s Bureau of Economic Analysis provided the following representation of the comparative spending of several sectors within the recreational economy.  The BEA analysis of 2022-2023 for outdoor recreational uses provides the following breakdown of the highest value contributors for recreation as follows:[20]

The Organizations submit that every one of these activities would be able to be pursued in most of the areas identified as suitable for large scale solar development and would also be prohibited under most of the designations that also prohibit solar development. The immense conflict that immediately results from this situation warrants meaningful analysis of the comparative alternatives and exploration of tools or standards that could mitigate these possible impacts.  This is not only legally necessary but would bring recreational protections into alignment with the many protections of other uses that are already provided in the Proposal.

5. Recreation should be provided project specific protections similar to other protections provided and to avoid impacts.

As the Organizations have noted, we have serious concerns around the scope of analysis for recreational activity in the Proposal. Unlike wildlife and ESA species issues, recreational usage simply does not translate well to mapping of habitat for species.  There are simply too may components and values that are highly localized in recreation to be effectively addressed with large scale mapping. The Organizations believe the Proposal must address this issue by mandating in the required steps for a development of a site-specific project that there is No net loss in recreational opportunities as a result of the project.  Basically, we are asking for mandatory protection of recreational access as part of solar project development.  This protection must be developed as part of the solar project when it is developed and not merely generally addressed as some point in the future.  This request is based on our decades of experience with projects which has identified  the fact there is a galaxy of difference between site specific requirements that “should require resolution of the issue at an unspecified point in the future”  when compared to site specific requirements that “must protect and preserve recreational access when the project is developed”.

The preservation of all recreational access is important as recreational values encompass a hugely diverse number of factors and criteria which are often highly site specific.  While a solar project might only block one trail, if this trail is the only access point or the easiest access point to a much larger recreation area the impact of the loss of this trail can extend FAR beyond the value of the trail in isolation. The diversity of values for recreation is also difficult to summarize or define.  A parking lot in an open OHV area can be hugely valuable, even if it does not have a kiosk or vault toilet. These are resources that must be protected and are also often excluded in areas that are already prohibiting solar development. These facilities may not be able to simply be relocated to another area easily.

This type of recreational protection would align recreational values with other values that have been protected in this manner for decades.  As an example, any project must undergo a survey and inventory for cultural resources and a section 7 consultation for ESA purposes.  This requirement merely brings recreational access to a similar level of protection as has been provided for other values on public lands for decades.

While this standard may seem onerous, it has not been a large burden on projects at this scale as often the resources for achieving these goals are already in the project area.  It is not a major issue to have a bulldozer or grader create a new parking lot in the area as these pieces of equipment are commonly found on job sites such as this. While project requirements such as this can be easily completed when the equipment is in the area, once the equipment has left the area it is expensive and difficult to have it return.

6 Conclusion.

The Organizations would like to recognize agency efforts in the development of the Proposal, as the scale of analysis and information to be aligned and processed is overwhelming. The Organizations vigorously support development of sustainable resources and have been actively involved in efforts to achieve these goals for decades.  However, the Organizations are deeply concerned that the Proposal suffers from many of the same systemic failures of analysis that resulted in the failure of previous efforts seeking to achieve similar goals on a smaller scale.  An example of this type of repeated failures in analysis  between this effort and previous efforts is the assertion in the Proposal that economic analysis of possible recreational impacts is a site-specific issue.  Another example of similar failures in analysis is the failure of the Proposal to recognize the inherent imbalance of information available on competing characteristics of these areas. While the Proposal does capture some recreational values, it falls well short of analyzing and protecting all recreational values and interests from possible impacts.

While many values with far more accurate and extensive data resources are addressed in the Proposal with mandatory protections in site specific planning to occur subsequently, recreation is not provided similar protections.  Not only will recreational access be disproportionate impacted but the visitation will decline most significantly in areas used by the highest spending profiles.  Without these basic issues being addressed, we are unable to support any alternative provided. We are asking that Alternative 3 is modified to provide additional protections for recreational values to reflect the imbalance of existing tools to analyze recreational values at this scale.  and also protect against the massive economic impacts that could result from the failure of the Proposal to accurately address these factors. These values could be protected if “no net loss in recreational opportunities” was required in subsequent site-specific planning as would bring recreational values to a similar level of protection in the Proposal with other values being balanced.

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

Scott Jones, Esq.
Executive Director CSA
Authorized Representative COHVCO

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President – CORE
Chairman – One Voice

Sandra Mitchell
Executive Director, IRC

Clif Koontz
Executive Director
Ride with Respect

Will Mook
Executive Director
AMPL

Matthew Giltner
Executive Director
Nevada Offroad Association

Ted Cabral
Authorized Representative
AMA D36

Matt Martelli
CEO
Unlimited Off-Road Racing/The Mint 400

Jerry Grabow
Authorized Representative
AMA D37

[1] See, Manfredo et al; Bringing social values to wildlife conservation decisions: Frontiers in Ecology and the Environment Front Ecol Environ2021; 19(6): 355–362, doi:10.1002/fee.2356 at pg. 355.

[2] See, 43 USC  4332

[3] See, A Proclamation on Establishment of the Camp Hale-Continental Divide National Monument;  a full copy of this proclamation is available here: A Proclamation on Establishment of the Camp Hale-Continental Divide National Monument | The White House

[4] See, USFS v. Cowpasture River Preservation Society, 590 U.S. ___ (2020)

[5] See,  Proposal Volume 2 Appendix b at pg. B-2.

[6] See, Proposal at pg. 5-40.

[7] See, Proposal at pg. ES-3.

[8] See, Proposal at pg. ES 3.

[9] 70935

[10] 70938

[11] See, 43 U.S.C. §1712

[12] See, BLM LUP Handbook H-1601-1 at Appendix D pg. 2.

[13] See, 42 U.S.C. §4321

[14] See, 40 CFR §1508.7

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

[16] See, Hughes River Supra note 24 at pg .

[17] See, Hughes River, Supra note 24 at pg

[18] See, Proposal at pg. 5-168

[19] See, The BLM: A Sound Investment for America 2022

[20] See, Dept of Commerce; Bureau of Economic Analysis;  Outdoor Recreation Satellite Account, U.S. and States, 2022; New Statistics for 2022; Updates for 2017–2021; No 17, 2023 at pg. 5. A full copy of this report is available here: Outdoor Recreation Satellite Account, U.S. and States, 2022 | U.S. Bureau of Economic Analysis (BEA)

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)