Author Archive | Christina

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

Re: Comments on the Draft Environmental Assessment of the Canyon Rims Travel Management Area

Dear BLM Planning Team:

We appreciate the opportunity to comment on your draft Environmental Assessment of the Canyon Rims Travel Management Area (TMA). Of the four alternatives in the Canyon Rims draft EA, we believe that alternatives A and D are the only acceptable options for providing a modest quantity and quality of off-highway vehicle (OHV) recreation opportunities, which is key to ensuring compliance and sustainable management of the area.

Moab Friends-For-Wheelin’ (MFFW) is a non-profit club founded in 2005 to bring four-wheel drive enthusiasts together and promote the pastime of four-wheeling to the community as well as other enthusiasts. MFFW has worked closely with the Moab offices of the BLM, SITLA, USFS, local landowners, and the community to promote responsible four-wheel drive recreation in the Moab area. MFFW has volunteered thousands of hours and thousands of dollars to various projects such as trail maintenance and restoration, community service, and effective communication with other four-wheel drive organizations as well as public land managers.

The Colorado Trails Preservation Alliance (TPA) is an advocacy organization created to be a viable partner to public lands managers, working with the USFS and 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. The TPA actively supports Ride with Respect’s efforts in the greater Moab area and have partnered on our comments concerning the Canyon Rims draft EA.

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 20,000 hours of high-quality trail work on public lands, most of which has been in the Moab Field Office. RwR participated greatly in the Moab Resource Management Plan revision from 2003 through 2008. RwR also provided consultation to the TPA and other OHV signatories of the 2017 settlement agreement.

The 2017 settlement agreement states that the existing Travel Management Plans (TMPs) will remain in effect until the BLM issues new TMPs for the eleven TMAs. However, it does not state that the existing TMPs will become the baseline for analysis of the new TMPs. Since the 2017 settlement agreement essentially directs the BLM to revisit eleven parts of the 2008 TMPs, 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 eleven parts of the 2008 TMPs, we must consider the motorized-travel policies that existed prior to the 2008 RODs.

In the case of the Moab Field Office, the 2008 RMP limited motorized travel to designated routes in the Canyon Rims TMA for the first time. Prior to the 2008 RMP, roughly half of the Canyon Rims TMA was open to cross-country travel, while the other half was limited to existing roads and trails. Limiting travel to a few hundred miles of routes thereby limited the footprint of impact to less than 1% of the Canyon Rims TMA.

The Canyon Rims draft EA defines its baseline as the 272.5 miles of routes designated open by the 2008 RMP. These designated routes excluded 21.7 miles of Class D roads. Unlike other counties, San Juan County claimed only the subset of roads that it recommends to be available for motorized travel by the public. Many other roads exist. In fact, a quick review of satellite images clearly indicates that the Canyon Rims TMA has several times more existing roads than what is currently designated open by the 2008 RMP. Further, San Juan County didn’t attempt to inventory non-road routes including wash bottoms, slickrock routes, and narrower trails for ATV or motorcycle use. In relying on San Juan County’s recommended transportation system, the 2008 RMP didn’t consider hundreds of miles of routes that existed in the Canyon Rims TMA.

Although Alternative D may exclude only 26 miles of routes that are currently designated open, it excludes over ten times that amount of routes which were historically used by motor vehicle in the Canyon Rims TMA. Although nearly all of the 26 miles were not found on the ground by the BLM, it does not necessarily 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).

In addition to the many routes excluded from the baseline of the Canyon Rims draft EA, Alternative C excludes 42 miles of routes that are currently designated open. Some of these 42 miles are routes that provide unique viewpoints, connectivity for looping opportunities off of graded roads, and portions of the San Juan OHV Trail System. These routes simply lack the negative impacts upon natural or social resources to warrant blocking them off, straining the BLM’s relations with members of the public, and increasing traffic on the remaining routes.

In the Canyon Rims TMA, the existing TMP is already restrictive, and Alternative A would meet the BLM’s legal obligations including the 2017 settlement agreement. Nevertheless, we would accept Alternative D since Section 3.1.3 states that “The construction of new routes is not in the scope of this project; however, the addition of new routes is part of the operation and management of the overall travel network.” After all, the spirit of the 2017 settlement agreement was to provide a path forward rather than to mire the BLM in excessive analysis.

Considering the context of all existing routes in the Canyon Rims TMA, and the restrictions already made there in 2008, we urge the BLM to minimize additional route closures by choosing alternatives A or D. Thanks for your consideration.

Sincerely,

Jeff Stevens, President
Moab Friends-For-Wheelin’

Chad Hixon, Executive Director
Trails Preservation Alliance

Clif Koontz, Executive Director
Ride with Respect

United States Forest Service
Attn: Michiko Martin, Director Recreation Staff
1400 Independence Ave SW
Washington, DC 20250-1124

SUBJECT: Comments on proposed policy changes regarding E-bike designations on lands managed by the United States Forest Service

Dear Ms. Martin:

Please accept these comments from the Colorado Trails Preservation Alliance (TPA) regarding the United States Forest Service’s (USFS) consideration of changes in policy regarding E-bikes and the use of those bicycles on lands managed by the USFS. The TPA is an advocacy organization created to be a viable partner to public lands managers, working with the USFS and the Bureau of Land Management (BLM) to preserve the sport of multiple-use recreation and motorized trail riding. The TPA acts as an advocate for the sport and takes 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.

The TPA appreciates the opportunity to comment on the proposed changes in policy regarding E-bikes and the use of those bicycles on lands managed by the USFS.

Executive Summary

To succinctly summarize our comments the TPA submits that:

1. Consistency of rules across agencies (i.e. USFS, BLM, NPS, etc.) will be important for public understanding, acceptance and compliance.
2. First and foremost E-bikes are “bicycles” and should appropriately coexist on bicycle infrastructure. The general public perceives E-bikes as “bicycles” (a bike is a bike) and will use them accordingly. The TPA understands the current position of the USFS that E-bikes are by definition “motorized vehicles”. However, we must disagree and assert that E-bikes should be designated as bicycles.
3. A single definition for E-bikes is necessary and needed.
4. There must not be any loss of motorized trails for exclusive use by E-bikes only.

Consistency with the recent BLM Rule will be important

The recently finalized BLM Rule at 43 CFR 8340.0-5 lists the rationale for a bicycle designation for E-bikes…the TPA supports and agrees with this rationale. The original Executive Orders (E.O.) 11644 and 11989 are not applicable to E-bikes. Those orders never contemplated a pedal assist vehicle whose footprint is identical to a bicycle, nor was the purpose of the rule to limit any vehicle so similar to a bicycle that they are almost indistinguishable.

The original rules were intended to limit OHV cross-country travel that was available almost everywhere at that time in order to minimize impacts to the environment. Such considerations are, as a matter of fact ancient history to our users who have seen opportunities disappear from closing areas to essentially a handful of routes on a handful of acres in comparison to almost every other recreational group. The purpose of the E.O.s has long ago faded and become outdated. And if the E.O.s fell slightly short in closing the door on every open area, the USFS’s own Travel Management Rule further closed any open areas and further reduced recreational opportunities.

Today’s vehicles that are motorized are either regulated by EPA noise and exhaust emission standards or are built to such standards with formalized cooperation from the manufacturers. Another reason the E.O.s are long overdue for revision. Besides, E-bike sound, or more correctly the lack thereof and lack of exhaust emissions, further collides with the motorized designation. To any individual who has never seen an E-bike, a bicycle or a UTV would have absolutely no difficulty in categorizing the vehicles. Engineering differences that are so lengthy in number they will not be mentioned here are obvious. E-bikes were never contemplated by the E.O.s for all the reasons identified above.

The TPA supports a single definition for E-bikes. Despite the proliferation of the existing three classes of E-bikes which now appears to becoming a de facto standard, the three classes lack meaningful basis in fact or practicality. Since E-bikes are currently heavier and bulkier than non-electric bikes, some riders actually need and require minor assistance from a throttle to just get the bike rolling or begin riding, especially on uneven terrain or inclines. Restricting an E-bike from use on any route or trail only because it merely has a throttle is simply arbitrary and impractical. Similarly, a question must be posed as to why the difference between a Class 1 and Class 3 is based solely upon an arbitrary value in the speed differential of 8 mph? Traditional bicycles without any type of assistance other than human power can easily exceed speeds of 28 mph yet there are no restrictions. It would seem that a more practical method to regulate and differentiate assisted bicycles would be to use an appropriate measure of power output, total weight of the bicycle or power to weight ratio than to continue the current methods of throttle or no throttle and an arbitrary speed.

The Dispersed Recreation and Capacity Challenge

Simply, a bicycle may use both motorized and nonmotorized routes and they currently do so by the thousands. As the conventional mountain bike users pursue more and more available trail opportunities, they often ask for the opportunity at the direct expense of motorized routes. Exactly how will that play with the new force of the expected exponential growth of E-bike users combined with existing motorized use? History indicates to the motorized recreationist that if it has a motor, then recreational opportunities are likely to be lost.

The TPA would offer that dispersing E-bike use in a nonmotorized fashion by granting E-bikes access to existing bicycle infrastructure would not only provide far greater opportunities but also disperse impacts.

There is the substantial potential that constraining all E-bike recreation onto motorized routes will lead to increased and unprecedented conflicts. Solving the crisis by closing routes to other motorized use because it is the easiest course of action is hardly fair, equitable, and evenhanded. Rather than creating additional user conflicts on an issue that has already been the basis of explosive conflict between many user groups, the TPA would submit that the regulations should focus on common grounds between all user groups, which is the lack of high-quality trails in significant portions of the country. From the motorized perspective there are very few areas of the country that provide high quality trail experiences on a large scale. While the TPA appreciates the use of old roads for motorized opportunities, these simply are not a “trail” (e.g. motorized single-track) and for our users the experiences are significantly different.

The TPA is strongly opposed to the loss of any motorized trails in an attempt to create E-bike only trail networks in a manner similar to the Tahoe NF. The TPA must unmistakably state we are strongly opposed to the loss of ANY motorized trails for designated exclusive E-bike usage.

Off Trail Violations

USFS regulations for the use of E-bikes must be simple and easy to use so the public will understand the regulations. This is a significant concern for the TPA as currently any E-bike being used outside the regulations would be a “motor vehicle off trail” and create the appearance of a significant increase in traditional motorized vehicle improper use, which will immediately renew assertions for needs for further restrictions. This situation is absolutely objectionable to the TPA.

Summary

In summary, the Trails Preservation Alliance supports the designation of E-bikes as “bicycles” on lands managed by the USFS and that it is appropriate and proper to allow E-bikes to utilize any and all bicycle infrastructure, trails, and routes. A single definition for E-bikes is necessary and needed. Finally, there must not be any loss of motorized trails for exclusive use by E-bikes at the expense of motorized use. The TPA thanks you for reviewing and considering these comments and suggestions. The TPA would welcome a discussion of the E-bike issues at your convenience. Our point of contact for these comments will be Chad Hixon at 719-221-8329 or chad@coloradotpa.org.

Sincerely,

Chad Hixon
Executive Director
Trails Preservation Alliance.

Senate Committee on Environment and Public Works
Att: Senator Barrasso
410 Dirksen Senate Office Building
Washington, DC 20510

Re: Support of Endangered Species Act Amendments of 2020 – MAZ20148

Dear Senator Barrasso:
Please accept this correspondence as the vigorous support of the Organizations noted above for the proposed 2020 Amendments of Endangered Species Act (“The Proposal”) targeting enhanced partnership efforts between Federal and State species managers in implementation of the Endangered Species Act. The Organizations were active participants in the Western Governors Association collaborative meetings and efforts organized by the Western Congressional Caucus addressing species conservation and ESA reform and are thrilled to see that process continue to move forward with this Proposal. The Organizations have also participated in a wide range of cooperative efforts around specific species, and it has been our experience that in these cooperative meetings that almost all species specific information, including population counts; specific habitat management actions public and private lands and other critical information that is being provided is coming from state species managers rather than federal species managers. Poor implementation of species management standards after a species is listed on the ESA is a major challenge that is faced by those seeking access to public lands in a sustainable manner. Many of these challenges are addressed by the Proposal.

Prior to addressing our basis for support of 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 100 percent 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. The Idaho Recreation Council (“IRC”) is a recognized, statewide, collaboration of Idaho recreation enthusiasts and others that will identify and work together on recreation issues in cooperation with land managers, legislators and the public to ensure a positive future for responsible outdoor recreation access for everyone, now and into the future. For purposes of this correspondence TPA, COHVCO, CSA, and IRC will be referred to as “The Organizations”. The Organizations have been heavily involved in a wide range of Endangered Species management efforts including listing, delisting and more generally focused habitat conservation efforts throughout the Western United States, addressing species including the Canadian Lynx, Wolverine, Sage Grouse and numerous plant and mollusk species based in the California desert area.

The Organizations welcome the Proposal’s review and programmatic update of the Endangered Species Act (“the Act”) as this review and updating is badly needed based our experiences with ESA issues and efforts. It is important to remember when the current iteration of the ESA was passed in 1973, cutting edge technology in the home was a kitchen toaster. Just as a home where a toaster is the most advanced technology is badly in need of an update by 2020, Legislation such as the ESA, that has remained largely unchanged since the toaster are equally in need of an update. The Proposal provides that badly needed update.

As a result of the badly out of date structure of the ESA, the ESA is simply not reflecting the management situation on the ground for many species, and this has become a major hurdle to species management. The Organizations believe that the ESA must become both more efficient and more consistent in its impacts between species over time and effectively achieve species populations that allow for the delisting of species. Additionally, our involvement with habitat challenges facing all species have included more generalized efforts targeting landscape level efforts around poor forest health and the impacts of various invasive species that have severally negatively impacting both terrestrial and aquatic habitats for all species. Often simply streamlining landscape level planning on forest health has to start with a major effort simply targeting ESA management issues that are being applied in the area, despite the fact that these standards often are out of date.

These experiences have allowed the Organizations to identify process-related restrictions in efforts to avoid listings of species and delist species once they are listed. It has been our experience that much of the concerns that are driving possible listings of species are based on a lack of scientific research around the species and challenges that may be resulting in the decline of the population, as exemplified around the management of the Canadian Lynx after listing on the ESA. The lack of science for management results in efforts that in no way relates to the challenges facing the species and, in some situations, has resulted in further negative impacts to the population. The Proposal facilitates the development of high-quality scientific information around issues prior to listing rather than listing the species with the hope of development of science at some point later, which can often take decades to develop while faulty science is applied on the ground. This Legislation is a major step towards developing this resource.

The lack of certainty around the basis for listing of a species also greatly complicates any efforts to delist the species as there is simply insufficient information for subsequent efforts to provide a defensible basis for delisting a species. The implementation of population goals that automatically trigger delisting efforts for any species has become a major hurdle as often the desire to simply have more of a species trumps the desire to have a sustainable population of that species. As a result of the difficulty in delisting a species, too often the ESA listing process has also become an alternative method of challenging projects for those that have chosen not to participate in the more general NEPA process around the project.

The additional clarity in management during the times when state recovery teams are working is a significant benefit as a recovery team process is anticipated to take several years. The Organizations welcome this timeframe as developing high quality management for the species must be the standard rather than simply seeking fast management solutions for the species. The Organizations would like to see additional clarity around the use of a possible listing during the recovery team process, as it has been our experience that these time periods often run much longer than expected and managers often rely on this ambiguity as the basis for closure or restrictions in the planning process.

The Organizations would ask that we be included in any further public efforts, collaborations or other efforts around this initiative as this issue and challenge is very important to our members. If you have questions please feel free to contact either Scott Jones, Esq. at 508 Ashford Drive, Longmont, CO 80504. His phone is (518)281-5810 and his email is scott.jones46@yahoo.com or Fred Wiley, ORBA’s Executive Director at 1701 Westwind Drive #108, Bakersfield, CA. Mr. Wiley phone is 661-323-1464 and his email is fwiley@orba.biz .

Respectfully Submitted,

Scott Jones, Esq.
Authorized Representative of One Voice

Fred Wiley
ORBA President and CEO

Roger Wright
President
United Snowmobile Alliance

Senate Committee on Environment and Public Works
Att: Senator Daines
410 Dirksen Senate Office Building
Washington, DC 20510

Re: Support of Emergency Wildfire and Public Safety Act of 2020

Dear Senator Daines:

Please accept this correspondence as the vigorous support of the Organizations noted above for the proposed 2020 Emergency Wildfire and Public Safety Act (“The Proposal”) targeting enhanced management flexibility for land managers to address fire prevention and to more rapidly respond to the ongoing impacts to landscapes after a fire has been extinguished. Prior to addressing our basis for support of 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 100 percent 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. The Idaho Recreation Council (“IRC”) is a recognized statewide collaboration of Idaho recreation enthusiasts and others that will identify and work together on recreation issues in cooperation with land managers, legislators, and the public to ensure a positive future for responsible outdoor recreation access for everyone, now and into the future. For purposes of this correspondence TPA, COHVCO, CSA, and IRC will be referred to as “The Organizations”. While the primary mission of the Organizations most directly relates to motorized recreation, the overall scope of the Organizations efforts has a larger impact as motorized recreation and access can take many forms and involve many activities, including camping, hunting and fishing and other recreational activities where motorized access to public lands is critical but not the primary recreational activity sought. Under federal land management standards, when an area is open to motorized access it is rarely closed to any other activity.

The Organizations welcome the Proposals wildfire risk reduction efforts in and around roads, trails, and transmissions lines as outlined in §103 of the Proposal. The Organizations are aware that the development of these resources around roadways can be highly effective in mitigating wildfire risks. There is another benefit from this management that we believe is equally important to the mitigation of fire risks, and that is the safety of the general public when using these resources is also improved. Stories about members of the public being threatened by falling dead trees while camping or pursuing other actions on public lands is becoming all too common. In 2012, a snowmobiler was killed in Wyoming when he was riding down a road and was struck by a falling tree that crossed the road.1 §103 of the Proposal would help effectively mitigate these risks and this public safety benefit cannot be overlooked.

The Organizations vigorously support the streamlined process laid out in §104 of the Proposal The long-term impacts of fire on recreational opportunities in the areas directly impacted by the fire is easily understood and poses a major challenge as these opportunities can take decades to restore. Immediate response to fire impacts can prevent impacts many miles outside of areas directly impacted by the fire, as evidenced by the following series of pictures of an improved drainage crossing on a trail several miles from the burn scar of a recent fire. While the structure had been in place for an extended period before the fire, the first major rain after the fire resulted in its immediate destruction as tons of sediment was deposited into the crossing area.

The streamlined process for restoration under §104 will generate immediate benefits for opportunities and resources in the burn scar, but the Organizations believe the benefits that will result outside the burn scar are equally important and weigh heavily in support of the Proposal.

There are several access-related benefits in the Proposal, as we note above, but we believe there are additional benefits that could be obtained if a mandatory review of road decommissioning was required to ensure fire fighting access to areas of public lands before the route was decommissioned. We are becoming all too familiar with situations where wildfires are started in areas that were only recently made inaccessible after historic access roads were decommissioned. We would ask that roads that are critical to access for fire prevention be made “administrative only” instead of being fully decommissioned in order to facilitate effective firefighting efforts in areas of public lands where fire fighting might become difficult or impossible if the route was decommissioned.

If you have questions please feel free to contact either Scott Jones, Esq. at 508 Ashford Drive, Longmont, CO 80504. His phone is (518)281-5810 and his email is scott.jones46@yahoo.com or Fred Wiley, ORBA’s Executive Director at 1701 Westwind Drive #108, Bakersfield, CA. Mr. Wiley’s phone is 661-323-1464 and his email is fwiley@orba.biz.

Respectfully Submitted,

Scott Jones, Esq.
COHVCO Authorized Representative;
CSA President

Sandra Mitchell, Executive Director
Idaho Recreation Council
1 https://billingsgazette.com/news/state-and-regional/wyoming/snowmobiler-dies-after-being-hit-by-tree-in-snowy-range/article_6bf82b8c-37c9-11e1-92c7-001871e3ce6c.html

US Forest Service -Region 2
VIA Electronic portal submission only

Re: Proposed 20/21 project list under GAOA

Dear Sirs:
The above Organizations welcome the opportunity to voice our support for the proposed Region 2 list of projects for the 2020/2021 season under the Great American Outdoor Act (S 3422) (hereinafter referred to as “the Proposal”). The Organizations support the current list of projects as they are diverse in nature and badly needed. Our concern is that partners were not well engaged in the development of the list despite the huge amount of funding that these partners have provided for decades, which could be problematic moving forward. The Organizations vigorously assert that existing resources must be leveraged as a springboard for success rather than seen as a reason to allocate money away from partner efforts and resources in order to avoid the creation of a priority list of projects such as was compiled by Region 2 in response to the passage of the National Trail System Stewardship Act in 2016.

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 100 percent 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. For purposes of this correspondence TPA, COHVCO and CSA will be referred to as “The Organizations”.

The Organizations were heavily involved in the development of the GAOA and were able to spend days with Congressional staff on snowmobiles in Colorado. USFS staff so staff was able to directly understand the grim funding situation of land managers and the huge role that partners now play in funding basic management on public lands. Several of the pictures that were taken by Congressional staff on this ride were used on the Senate floor in speeches and support documentation for the GAOA passage. The Organizations have partnered with land managers through the CPW Trails program for decades to provide direct funding for management and maintenance of trails and related resources, which now exceeds $7 million annually.

The Organizations support the diverse nature and quality of the projects that are proposed in the 2020/2021 project list, as there is far better diversity of projects and interests in this list than previous priority project efforts compiled by the Region in 2018. The Organizations were not aware of many of the efforts that were addressed in the 2020/2021 project list, which is encouraging and troubling all at the same time. The Organizations have extensive involvement with the allocation of funding in the CPW trails program, which has been the primary source of project money for land managers over the last several years. The Organizations are aware that the current list of projects has been prepared at a hugely compressed timeline given the short timeframe provided for in the GAOA.

The Organizations would ask that moving forward with GAOA implementation that the partner involvement be GREATLY expanded on the project list. The Organizations can see a HUGE amount of benefit to land managers with better collaboration of these projects with partners working at the scale of the Organizations. Unlike every other user group, the motorized community has consistently provided land managers with direct funding available for capital and maintenance projects and would like to coordinate on these efforts moving forward. The Organizations would like to avoid project lists like the priority trail list that was created by the Region in 2018 in response to the passage of the National Forest System Trail Stewardship Act of 2016. This list lacked the diverse nature of the projects and was largely centered on Wilderness areas, which are some of the most expensive areas to maintain and are also some of the least used trails in the Region. This was insulting to partners and the public who were using other areas far more frequently.

A primary concern from the Organizations would be maintaining the diverse nature of projects on the list. The Organizations have worked hard to provide significant funding to land managers throughout the state and this funding has maintained opportunities for all user groups. As a result, we are concerned there could be a perception that interests that have not worked with the USFS in the manner the Organizations have could be more needy of funding to maintain or repair facilities. Unfortunately, this reallocation of funds has occurred in the past as exemplified by the list of priority trail list of projects created by Region 2 in 2018, where multiple-use access or partner resources clearly was not a priority for the development of the list. This was simply insulting to the partners who work so hard to support land managers and have been the only source of direct funding for management operations when budgets have almost totally evaporated previously.

The only reason this perception could be factually accurate is from the SUCCESS of the CPW Trails program in maintaining and protecting recreational opportunities and this success should never be seen as a negative. It is our position that the success of this program must be seen as a springboard for further success on the ground and not as a reason to direct money to projects that don’t have this infrastructure. No other user group has provided almost 400 seasonal hired employees, dozens of pieces of maintenance equipment such as dozers, skid steers and mini-excavators to land managers. This foundation for success must be used and not seen as a reason to allocate funding to other projects.

Please feel free to contact us at any time to discuss this support and how to collaborate on the development of future lists under GAOA. Our contact info is Scott Jones, Esq. at 508 Ashford Drive, Longmont, CO 80504. His phone is (518)281-5810 and his email is scott.jones46@yahoo.com or Don Riggle at 725 Palomar Lane, Colorado Springs, 80906, Cell (719) 338- 4106. We are also aware that the State Trails Committee and Program would openly welcome such a collaboration with land managers moving forward.

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
TPA & COHVCO Authorized Representative

Don Riggle
Director of Operations
Trails Preservation Alliance

UD Fish and Wildlife Service
MS: PRB(3W)
5275 Leesburg Pike
Falls Church, VA 22041-3803

Re: Definition of Habitat Areas Docket No. FWS–HQ–ES–2020–0047

Dear Sirs:
Please accept this correspondence as the above Organizations comments regarding the insertion of a definition of habitat into USFWS regulations (“the Proposal”) as addressed under the recent Weyerhauser Supreme Court decision. Prior to addressing the specifics of the Proposal, the Organizations would like to address the general consternation and shock that our members have expressed when discussing the Weyerhauser decision, mainly that critical habitat must be designated in areas that are also habitat for a species. Generally, our members are shocked that such a basic question had to be ruled on by the Supreme Court, as most assumed that any critical habitat areas are a subset of existing habitat for the species. The Organizations submit this type of foundational question is all too commonly answered in a manner outside the scientific process, as a result of the passion that often surrounds the ESA consuming basic scientific process.

While addressing modeled but unoccupied habitat is important for species with somewhat small habitat areas such as the gopher frog, the Organizations believe that looking at habitat issues for larger ranging species, such as wolves, grizzly bears, lynx or wolverine is also important. Often the definition of habitat for these wide-ranging species is based on the mere sighting of a species in the area. Much of habitat designation discussions on these species does not center on habitat that the species depends upon, but rather focuses on the belief that the species prefers the area resulting in some interests asserting the area should be habitat despite the lack of consistent usage.

Too often decisions are based on passion and relying on passion instead of science when addressing habitat results in conclusions on habitat designations across species boundaries that are foundationally in conflict with basic issues. Some species have critical habitat that includes only occupied habitat while other species have designated critical habitat that is almost entirely unoccupied. The Organizations submit that critical habitat should be similar in terms of issues such as occupation of the habitat by the species. Differences in management or designation criteria should rely on legal factors for habitat designation decisions such as if the species is threatened or endangered for ESA purposes. The Organizations submit that creating a STRONG definition of “habitat” will serve a check towards rebalancing the relationship of the scientific process with the passion of possibly saving a species from extinction. This rebalancing will bring greater consistency to the ESA critical habitat process and in turn build public support for these efforts. This public support is growing more critical everyday simply due to budget limitations but also due to issues such as some species rely on voluntary conservation measures on private lands for their survival.

It has been the Organizations experience that the current species by species management process of this issue has resulted in conclusions for the management of these areas that simply cannot be reconciled or based on solid scientific theory. This is simply not good management and erodes public support for the ESA and related management. The Organizations would support a strengthening of the either definition to include a requirement that habitat must be lands that the species depends upon for basic life function in order to avoid areas that a species prefers being designated as critical. The Organizations would also submit that specific life functions for the species be identified and that habitat designations must discuss in some detail how the proposed habitat relates to these general functions. The Organizations are unsure why dependency is present in the first definition but is omitted in the second and the Organizations believe this is an important concept in the definition in order to avoid designation of habitat simply because a species prefers a specific area.

1. Who we are.

Prior to addressing the specific concerns on the Proposal, the Organizations 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 100 percent 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. The Idaho Recreation Council (“IRC”) is a recognized, statewide, collaboration of Idaho recreation enthusiasts and others that will identify and work together on recreation issues in cooperation with land managers, legislators and the public to ensure a positive future for responsible outdoor recreation access for everyone, now and into the future. For purposes of this correspondence TPA, COHVCO, CSA, and IRC will be referred to as “The Organizations”.

The Organizations have actively participated in planning projects ranging from hundreds of localized efforts to maintain or reroute portions of trails to large regional efforts such as the revision of land management plans at the forest or field office level to national efforts such as: Participation in the Western Congressional Caucus meetings on ESA reform in 2019; Active and ongoing efforts with the Western Governors Association on Species protection and ESA reform since 2015; The Desert Renewable Energy Efforts in California; Sage Grouse management efforts in the Rocky Mountains; California Desert Tortoise efforts in the sand dunes of California; recent revisions of the new USFS planning rule; development and revocation of the BLM 2.0 Planning Rule; and development of the USFS winter travel rule.

2. Dependency of a species is the legal minimum for defined habitat areas.

The Organizations must note that “dependency” of a species on a specific habitat area is one of the cornerstones of the ESA since its adoption in 1973. While the concept of habitat dependency has been a cornerstone for protection, this concept simply has been largely ignored or minimized since the passage of the ESA. Reflecting the requirement of dependency in the habitat definition is a minimum to pass legal review and is also supported by best available science on this issue. As further discussed in these comments, best available science on habitat definitions requires discussion of specific life functions occurring in the habitat.

The Organizations would submit that this discussion must be required under the definition of habitat, and is not currently provided for.
The clarity of the Act on the issue of habitat dependency cannot be more clear. The Act initially provides for habitat dependency of the species on the habitat area as follows:

“(b) Purposes. The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.”¹

The Act further repeats the dependency standard in the management of habitat for migratory birds as follows:

“B) identification of those species of birds that migrate between the United States and other contracting parties, and the habitats upon which those species depend, and the implementation of cooperative measures to ensure that such species will not become endangered or threatened; and”²

The Act specifically provided for a similar process in the designation of critical habitat area under §4a and as a result there should be similar discussions around habitat areas.

It is significant to note that the ESA does not provide a habitat standard that a species “may depend on” or “could depend on” an area for designation, the Act clearly states dependency is required. The concept of habitat dependency was a major discussion point between the House and Senate with the passage of the ESA in 1973 as the Senate sought a more restrictive standard for the management of plans species when compared to other species based on a study from the Smithsonian Institute. For this reason alone, the Organizations vigorously assert that the definition of habitat must be clearer than ever before and must include specific identification of factors and a detailed discussion of the relationship of the species to the area that a species is relying on the area for.

3a. The scientific definition of wildlife habitat is more stringent than the proposed habitat definition under ESA.

The Organizations welcomed the Proposal’s recognition that Best Available Science does not place significant value on modeled but unoccupied habitat as a management tool for species. While habitat and critical habitat are different terms and concepts, the proper application of these terms should not create significant conflict between the determinations when critical habitat for a species is modeled. The Organization believes the value of this landscape level statement cannot be overstated as this basic position is often lost in the passion of possibly saving a species. It has been the Organizations experience that too often critical habitat discussions place far too great a value on possible habitat areas the species has never been or cannot use or simply might prefer to use rather than areas the species depend upon to survive.

The Organizations submit that this situation is a failure of basic scientific processes around the modeling of any habitat areas for a species. In critical habitat discussions driven by the ESA, too often processes fail in correcting basic modeling errors, as is mandated by the scientific process for modeling any activity. Instead these modeling errors which are not based on scientific process are sought to be normalized in a rushed effort to protect a species. The Organizations do not contest that modeling of unoccupied habitat is permitted under the ESA process, but there is little scientific basis for such a position and this simply cannot be overlooked. A strong definition of habitat tied to specific life functions the species relies on the area to conduct will help resolve this issue.

While the Proposal only provides a single sentence recognizing the conflict between basic scientific process and the habitat designation process under the ESA, this single sentence carries immense weight. The Proposal clearly recognizes the lack of scientific basis for unoccupied habitat as follows:

“In particular, the proposed definition is written so as to include unoccupied habitat, whereas many of the definitions in the ecological literature that we reviewed did not appear to consider unoccupied areas.”³

While the concern of the scientific community around management of unoccupied habitat is only reflected in one sentence of the Proposal, this is not minor. The mandate of applying best available science (“BAT”) is one of the cornerstones of the entire Endangered Species Act and is specifically applicable to the designation of both basic habitat and critical habitat. It should not be overlooked that identifying best available science on an issue has probably been one of the most litigated issues in ESA management, and it is the Organizations position that best available science should be consistently applied throughout the ESA. A few examples of the BAT requirement would include §4(b)(1)(A) of the ESA which requires agencies to make listing decisions based:

“on the basis of the best scientific and commercial data available…”

Similarly, §4(b)(2) specifically requires managers addressing critical habitat designations and review to:

“Designated critical habitat and made revisions thereto, under subsection (a)(3) on the basis of the best scientific data available…”

Section 7(a)(2) of the Act continues applying this BAT cornerstone of the Act to the consultation process as follows:

“In fulfilling the requirements of this paragraph, each agency shall use the best scientific and commercial data available.”

While the process for modeling of any activity has not been a hot bed of legislative activity, modeling of complex activities and relationships occurs consistently throughout the world on a huge number of issues and has been the basis of extensive scientific and scholarly analysis. While there are an exhaustive number of models for almost any activity, the Organizations are aware that all modeling guidelines require some basic review of the model to ensure the model is accurately predicting the behavior that is sought to be modeled. While no model is perfect in predicting all behavior, there needs to be some level of correlation between the model and the behavior modeled.

A good general summary of the modeling and simulation process is provided by Wikipedia.com, which provides the following general guidance on modeling of behaviors

“Modelling as a substitute for direct measurement and experimentation. Within modelling and simulation, a model is a task-driven, purposeful simplification and abstraction of a perception of reality, shaped by physical, legal, and cognitive constraints.[12] It is task-driven, because a model is captured with a certain question or task in mind. Simplifications leave all the known and observed entities and their relation out that are not important for the task. Abstraction aggregates information that is important, but not needed in the same detail as the object of interest. Both activities, simplification and abstraction, are done purposefully. However, they are done based on a perception of reality. This perception is already a model in itself, as it comes with a physical constraint. There are also constraints on what we are able to legally observe with our current tools and methods, and cognitive constraints which limit what we are able to explain with our current theories.
Evaluating a model: A model is evaluated first and foremost by its consistency to empirical data; any model inconsistent with reproducible observations must be modified or rejected. One way to modify the model is by restricting the domain over which it is credited with having high validity. A case in point is Newtonian physics, which is highly useful except for the very small, the very fast, and the very massive phenomena of the universe. However, a fit to empirical data alone is not sufficient for a model to be accepted as valid. Other factors important in evaluating a model include:

• • Ability to explain past observations
  • Ability to predict future observations
  • Cost of use, especially in combination with other models
  • Refutability, enabling estimation of the degree of confidence in the model
  • Simplicity, or even aesthetic appeal”⁴

As briefly outlined in the Wikipedia definition, the evaluation and revision of any modeling or simulation of behavior is a critical step in the modeling process and without success at this step the model should be modified or rejected entirely. This double check of the accuracy of the model to predict behavior is a basic review for any model of activity or behavior. While the list of modeling guidelines is overwhelming, recognition of the requirement for a double checking of the accuracy of the model under non statutory situations. For creation of a business model, Entrepreneur magazine recommends the following step in the development of a business model:

“2. Confirm that your product or service solves the problem. Once you have a prototype or alpha version, expose it to real customers to see if you get the same excitement and delight that you feel. Look for feedback on how to make it a better fit. If it doesn’t relieve the pain, or doesn’t work, no business model will save you.”⁵

A similar need to double check that any model is accurately reflecting the behavior sought to be modeled in the development of mathematical models. This requirement in mathematical modeling efforts is outlined by experts as follows:

“3. Determine how the model could be improved. In order to make your model useful for further applications, you need to consider how it could be improved. Are there any variables that you should have considered? Are there any restrictions that could be lifted? Try to find the best way to improve upon your model before you use it again.[8]”⁶

Similar to the modeling of business activities and mathematical theory, best available science on the modeling of wildlife habitat also has an exceptionally well-defined process for development of species or habitat models. This process includes a step to review that the results of the model are corresponding with the actual life activity of the species. This process of modeling wildlife habitat has been outlined as follows:

“Modeling wildlife habitat over this range of scales requires many assumptions about the relationships between wildlife population metrics and habitat occurrence, quality, and spatial distribution. Standard modeling protocol is to explicitly state all assumptions early in the process; substantiate those assumptions with field data, published information, or expert opinion; hypothesize the relationships among wildlife and their habitat; and use the modeling framework to evaluate sensitivities and produce output. One critical assumption underlying this protocol is that habitat is accurately characterized at ecologically relevant scales to the organism(s) of interest.”⁷

Other experts have provided the following summary of the wildlife habitat modeling process:

“The Process of model evaluation and validation is a critical step in modeling. However, this evaluation should not focus on how well the model captures “truth” (verification) but how well the model performs for its intended purpose.”⁸

Without exaggeration there are libraries full of scholarly materials addressing the proper methodology for the development of habitat models for wildlife, and these range from discussions at a very general level to the specific process that was used to model habitat for a species. This level of vigor in order to establish a defensible scientific model of habitat is often simply not present in the ESA listing process.

Even when addressing wildlife habitat, best available science clearly identifies the need to ensure modeling of habitat areas is actually reflecting the areas the species depends upon for basic life activities. While best available science clearly requires if a model does not accurately reflect the modeled behavior, this is a basis for review and modification of the model and not moving forward with the recommended actions of the model. If the modeling accuracy cannot be improved to a satisfactory level, the modeling effort is stopped at some point. This simply is not how modeling of critical habitat has occurred in our experiences under the ESA process as often the rush to protect the species overwhelms any discussion of revision of models due to poor performance of the model in predicting behavior. A strong definition of habitat including requirements of discussion of how the habitat relates to basic life functions would assist in restoring the scientific validity of this discussion.

Traditionally, habitat area decisions are made after a decision has been made that a species is going to be listed for protection under some level of the ESA. As a result, habitat decisions are often made under heavy political pressure or an artificial urgency from the desire to protect a species. Revising a model to increase performance of the model can take years to complete and this is time that often is outside the scope of possibility under these pressures. It has been the Organizations experience that often habitat is mapped based on an identified number of general factors for the species and factors such as actual usage by a species are not heavily weighted in this effort. In a further troubling twist, often much of the mapping of habitat is performed by special interest groups or interests that have some level of financial interest in the continued heightened management of the species being discussed. Meaningful discussions of habitat viability are often lost in efforts to try minimize proposed habitat areas that are often more of a special interest group wish list than a scientifically valid document.

Subsequent to the application of very generalized factors to areas for modeling of habitat, the habitat review process then moves to a position of presuming the modeled area being available habitat for the species. Often this occurs with little direct evidence that the species has ever used the area or that the boundary actually relates to some basic life function. Often this transition in the discussion of modeled habitat is based on an assertion that currently used habitat is insufficient to ensure the protection of the species and the artificial urgency created by the need to save the species. While the Organizations have seen this imbalance all too often, the example of the gopher frog habitat process provides common ground for discussion. This is exactly the situation experienced in the Weyerhauser case where unoccupied habitat was designated based on the following basis:

“The currently occupied habitat of the Mississippi gopher frog is highly localized and fragmented. With such limited distribution, the Mississippi gopher frog is at high risk of extinction and highly susceptible to stochastic events…… To reduce the risk of extinction through these processes, it is important to establish multiple protected subpopulations across the landscape”⁹

It is interesting to note that the gopher frog listing provided the following criteria for habitat which include are summarized as small ponds that hold reasonable quality water at least 195 days of the year, a lack of predatory fish; and an open canopy herbaceous forest. 10 The comically broad nature of these modeling factors is immediately apparent, as under these factors the gopher frog could be living in almost any pond in the country. It should be noted that these factors could be applied to a huge number of OTHER species totally unrelated to the gopher frog as well. Almost no pond in the country could be excluded with these modeling factors despite the fact the gopher frog has never lived in most of the country. This is an example of a failed habitat model, which could be corrected with a more detailed discussion of why the area is thought to be suitable.

In an interesting failure of the scientific process, no discussion of how these generalized criteria apply to the modeled habitat is provided or is there any discussion around the fact that these criteria could be applied to almost any small pond in the country. No discussion of revision of the modeling process or refining these very generalized criteria to create a model that more accurately reflects current conditions in the area or why the species are only occurring in the small habitat ever occurs. Rather the entire decision that more habitat is needed for the gopher frog is based on two citations to articles that are not identified or discussed in any detail in the proposal. The fact that the area is currently not suitable for use by the gopher frog is lost and the fact the habitat could be used with modification is immediately accepted as the basis for its protection. It has been the Organizations experience that this fact pattern is all too common in the habitat designation process, despite the comical failures of the scientific process when an arm’s length review of the effort is conducted. This must be corrected with a strong definition of habitat and detailed discussion of how the habitat proposal relates to specific life functions.

The Organizations submit the gopher frog decision is an example that simply did not strike a proper balance between the scientific process necessary to make scientifically defensible species management decisions and the passion to possibly protect a species. While the gopher frog process is arguably legally supported by ESA provisions, this presumption is simply the opposite of any scientific process in modeling behaviors or activity. When the modeled behavior or activity does not occur in the manner that is predicted in the model, this is the basis for significant review of the model rather than pursuing the decision results from the inaccurate model further. The Organizations submit that a strong definition of habitat, that required discussion of how life functions depended on that habitat would be a major step forward in bringing balance to this discussion.

3b. Habitat designations for wide-ranging species that do not have well-defined habitat characteristics would benefit from a stronger definition of habitat.

The Organizations have had a wide range of experiences with modeled habitat for many species based on VERY generalized habitat criteria, as is addressed by the Supreme Court in the Weyerhauser decision. Our experiences provide a different question than the gopher frog situation where habitat was modeled based on astonishingly general factors and the species only used a small portion of the habitat. Our efforts have often involved wide ranging species that do not depend on specific areas for survival or a life function as the species is more of a habitat generalist than a habitat specialist. These species generalist discussions provide a more compelling basis for a strong definition of habitat based on dependency for specific life functions as public support for management often depends on the actual recovery of the species after management actions are undertaken.

The concept of dependency on particular life functions can have significant impacts to modeling of habitat species, that may not rely on sufficiently definable criteria for traditional modeling of habitat based on the adaptations of the species. This would generally include larger omnivore type species such as Grizzly Bears, Wolverine, Wolves or Lynx. Many of these species have home ranges of hundreds of square miles that are used at widely divergent levels of activity. Are there areas that the species does depend on for specific life activities? Yes. Does the species rely on all acres to the same level? That answer is clearly no. The management of these types of species weighs heavily in favor of a strong habitat definition with specific life functions identified and related to the habitat designations proposed. Effective identification of habitat leads to effective management.

Our concerns on the benefits of accurate designation of habitat for these wide-ranging species is best exemplified by the travels of a wolverine collared and tracked as M56 throughout the western United States over several years.¹¹ M56’s voyage started outside Yellowstone National Park, where he was captured and tagged. M56 then proceeded to travel across Wyoming to northern Colorado and take up residence for several years in the vicinity of Rocky Mountain National Park. After residing there for several years, M56 again crossed Wyoming and South Dakota and ended in North Dakota, where his story eventually ended after being shot for harassing cattle. The highly mobile nature of species is not limited to just the Wolverine, but are also exemplified by the tracking of Canadian Lynx in Colorado after their reintroduction. Many of these reintroduced lynx traveled long distances into areas that were completely unsuitable habitat for lynx, as exemplified by reintroduced lynx ending up in almost every state adjacent to Colorado including Kansas and Nevada. While the Colorado reintroduction was successful for the lynx, other reintroductions such as those in NY failed with a similar habitat model. Why one succeeded another failed to support habitat sufficient to support the species should be a major point of analysis in any lynx habitat discussion. These discussions could be driven if there was a more stringent requirement of habitat areas for designations.

Another example of a wide-ranging species that does not have a well-defined habitat would be the reintroduced woodland caribou in northern Idaho. The reintroduction failed after decades of efforts and reintroduction of the species in large areas of historic habitat.12 Idaho Department of natural resources summarizes woodland caribou habitat as follows:

“Southern mountain caribou are unique in that they occupy high elevation, forested areas with deep snowfall along the inland temperate rainforest. In addition, they do not make the long-distance migrations of other woodland caribou, rather they migrate vertically up and down mountains several times a year, feeding solely on tree lichens during winter.”¹³

The Organizations are aware this is a brief summary of the habitat but would also note that these factors were relied on for multiple reintroductions of the woodland caribou, all of which have failed at this point. Again, habitat criteria are VERY generalized and could be applied almost anywhere in the country, often to areas that have never supported a caribou population. Threats to the species are often very generalized and reflected by Idaho Department of Conservation as follows:

“predation, forest harvest, human development, recreation and effects due to climate change (increase in wildfire and decrease in alpine habitat) are the main factors credited for the decline in caribou populations.”

In response to the reintroduction, many of these habitat threats were completely excluded or severely curtailed in the habitat areas. Despite these regulations and restrictions, populations continued to decline and eventually the reintroduction failed. There is little hope of the repopulation of caribou these areas without another reintroduction but there is no discussion of why the reintroduction failed when other species in this geographic area have been successful with shocking similar threats to their populations. While the reintroduction failed and the remaining two caribou were returned to Canada, this has not impacted the fact there remains habitat models for the species in numerous planning documents and critical habitat provided for in the ESA realm. Similar issues are present after a failed reintroduction of caribou was concluded in the early 1990s¹⁴ but no efforts were provided to refine habitat definitions to understand what was causing the species to decline.

The Organizations submit that these types of models for species activity represent another situation where a stronger definition of habitat and detailed discussion of how the species relies on the area for basic life functions could streamline management efforts for species, an provide better chances of survival through meaningful habitat management efforts even before there is further action regarding their possible listing under the ESA. While clearly the states of Colorado, Wyoming, and the Dakotas are not habitat that any single animal depends on to survive, the Organizations have participated in meetings that start from this position for wolverine habitat management. Similar experiences have also occurred with other species and the Organizations submit this situation warrants a more detailed and specific definition of habitat than either alternative currently provides. This simply erodes public support for the entire process, and this public support is growing more and more critical every day.

3c. Best available science consistently provides a stronger definition of habitat than is provided by the Service currently.

As the Service specifically noted in the Proposal, the definition of wildlife habitat and modeling of habitat is an issue that there is a large body of research addressing. After reviewing many of the definitions that are provided in scientific research, the Organizations believe that the definition of habitat provided by the researchers is stronger than either that is current provided by the Service. The Organizations have attached a survey of relevant researchers’ definitions of wildlife habitat that was prepared Elsevier publishing as part of their Science Direct journal.¹⁵ We have attached a copy of this document to these comments as Exhibit “1”. The Organizations submit that this overwhelming body of research supporting a stronger and more detailed definition of wildlife habitat must be addressed in any habitat proposal.

4a. Without a strong definition of habitat, the illogical management of unoccupied habitat areas will continue as decisions are made on a species by species basis.

As the Organizations have discussed previously, variations in the designations of habitat areas should be generally consistent based on legal designations and not the amount of political pressure that has been applied around the species. These designations should have some type of basis in basic logical progression based on the legal designations of the species, or lack thereof. Should an endangered species have more unoccupied habitat than a threatened species? Probably. Should a threatened species have more unoccupied habitat than a species that warranted but precluded? Probably again. Should a possibly listed species have more unoccupied species than an indicator species. Probably yes. This type of basic logical consistency to the planning process can only occur when there is a strong definition of habitat and meaningful discussion of the life functions that are relied on for the habitat designations. Public support for the management of species is becoming more and more critical, as many species depend on public and private lands for survival, and this type of basic logical defensibility is critical to developing and maintaining that public support.

The failure of logical defensibility in many decisions is exemplified when species decisions are compared. The DPS of endangered Woodland Caribou situation in Northern Idaho, where there are 30,000 acres of critical habitat is designated to protect a known population of zero caribou. Even before the caribou were removed by Idaho Wildlife officials, this designation was clearly too large for such a small DPS. While the Organizations are aware that this is an unusual situation, that warrants a petition to amend the currently designated habitat but a stricter definition of habitat with specific discussion of life functions tied to the habitat areas would assist in remedying this situation. Too often unoccupied habitat comprises more critical habitat than occupied habitat even for endangered species as exemplified by the Gopher Frog in the Weyerhauser decision where 1,572 acres of 1,957 acres (80%) of habitat is unoccupied ¹⁶

The basic logical basis for habitat designations comes into question when the Gopher Frog designations are compared with habitat designations for the threatened Gunnison Sage Grouse.17 While the exact breakdown of the occupied vs unoccupied habitat areas for the Gunnison Sage Grouse is not discussed in great detail, the proposed map of habitat areas clearly provides that unoccupied habitat exceeds 50% of the proposed habitat as evidenced below.¹⁸

The logical consistency of the habitat designation process fails even further when habitat designations for other threatened species are compared as other threatened species have habitat that is only occupied, as exemplified by Preble’s Jumping Mouse management efforts in Colorado.¹⁹ These challenges in the application of basic logic are the types of issues that the scientific process is specifically designed to address and have too often been overlooked in the rush to protect a species.

4b. Landscape level efforts to create healthy landscapes that benefit all species require public support that can only be obtained with a logical and strong habitat designation process.

The failure of the logical and scientific process around ESA habitat designations also impacts one of the major changes in landscape management efforts for public and private lands, mainly the recognition that healthy landscapes benefit all species. This systemic shift in best available science is significant but is also difficult to summarize in a forum such as this. As a result, minimal basis is provided for this position as the Organizations are sure the Service is well aware of these landscape level management changes. The relationship of these efforts should not be overlooked either.

Best available science is moving towards a recognition that management of individual species justifies management decisions that negatively impact the landscape level habitat under the guise of benefitting an individual species. The current model of species by species management is an example of maybe winning a particular battle but losing a war. Healthy landscapes benefit all species and this improved species health will benefit all species. Put another way ESA is out of date compared to best available science. This is an issue where a strong habitat definition would reduce conflicts in management and allow for healthier landscapes to benefit all species. This type of landscape health can only be achieved when public and private lands are managed in harmony with each other and not in conflict with each other. Public support for management is a critical component in managing all lands consistently to benefit all species and logical processes are critical to this public support.

Not only is this conflict coming from best available science it is also created by competing statutory obligations on federal public lands, and has been present since the passage of the National Forest Management Act by Congress in 1974. For many areas, landscape management is the only sensible level of management as habitat area management for species is different but often conflicts at the landscape level. Agencies have struggled with implementation of regulations on this question and the Organizations submit that a strong definition of habitat will help resolve this conflict.

The landscape habitat requirements are evidenced by the National Forest Management Act, which specifically provides as follows:

“(B) provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan;”²⁰

The evolution of best available science and the competing legislative objectives often means engaging private lands owners and public lands that may not be federally owned. This is simply a different and probably mor effective model of management than viewing federal public lands in isolation from lands that are adjacent. Public support for the combined management efforts is far more critical given that so much management on private lands is voluntary in nature when compared to managing federal lands in isolation. The Organizations are intimately familiar with public response to management that is not effective or not logical in nature. Public support wanes quickly. A detailed definition of habitat areas will help build that public support.

5. Discrete areas of Critical Habitat and seasonal usage.

The Organizations would like to make it very clear that at no point in this discussion are we addressing possible designation of discrete areas of habitat for a species based on that species depending on the habitat on a seasonal basis. This appears to be a point of confusion in many of the discussions we are seeing on this Proposal. The Organizational concerns are centered more around habitat areas that the species may not depend upon or even been seen in for extended periods of time. The Organizations believe these are two different issues for the designation and management process and a failure to clarify these two issues will lead to confusion of topics and issues and complicate the discussion around the identification of what we are referring to as modeled but unoccupied habitat for purposes of these comments. The management of modeled habitat or habitat the species does not depend upon is simply a different issue for management than habitat for a species on a seasonally dependent basis.

The Organizations have participated in numerous discussions around the management of critical habitat that is only seasonally used by a species, such as seasonal denning habitat for wolverine, or seasonal elk calving areas or other ungulate winter ranges. The Organizations have been able to strike a reasonable balance of uses of these areas with seasonal closures of these areas for recreational usage in management documents and believe these balances of the seasonal nature of particular habitats is outside the question currently being posed in the Proposal. From the Organizations perspective, the Proposal seeks to address habitats that have not been used for a variety of reasons by a species for an extended period of time or habitat areas that the species does not depend upon.

6. Modeled habitat review has implications far outside the basic designation of critical habitat for a species.

As noted previously, the Organizations have participated in a wide range of planning efforts at a variety of levels and the question of activities in wildlife habitat is often one of the more challenging issues in these discussions. It has been our experience that once any possible habitat area is mapped, these overly broad habitat designations are very difficult to conclusively stop or address. This is the result that habitat concerns for species are frequently used by some groups as a point of opposition to a specific usage of an area for multiple uses or in the development of Wilderness Proposals for Congressional action, as some see these designations as the ultimate protection of wildlife habitat. The surrogating of wildlife concerns often makes meaningful discussions of these wildlife concerns difficult in site specific efforts and often can generate significant expense for those involved in the site-specific planning which generates no benefit to the species.

The cumulative burden of overly broad habitat management is exemplified in the updating of landscape levels such as a forest plan. Resolving the conflicts of these overly broad habitat discussions directly contributed to the fact that 76 pages of the 84 page appeal decision on Rio Grande NF RMP revision was addressing possible habitat issues.²¹ The administrative burdens and expenses incurred in developing this decision are significant and become simply overwhelming when costs and delays are compiled for each forest updating their forest plan. This is simply a massive barrier that could be reduced with a tighter and stronger definition of habitat that was meaningfully discussing life functions of the species that are tied to the habitat designations.

7. Conclusion.

Please accept this correspondence as the above Organizations comments regarding the insertion of a definition of habitat into USFWS regulations (“the Proposal”) as addressed under the recent Weyerhauser Supreme Court decision. Prior to addressing the specifics of the Proposal, the Organizations would like to address the general consternation and shock that our members have expressed when discussing the Weyerhauser decision, mainly that critical habitat must be designated in areas that are also habitat for a species. Generally, our members are shocked that such a basic question had to be ruled on by the Supreme Court, as most assumed that any critical habitat areas are a subset of existing habitat for the species. The Organizations submit this type of foundational question is all too commonly answered in a manner outside the scientific process, as a result of the passion that often surrounds the ESA consuming basic scientific process.

While addressing modeled but unoccupied habitat is important for species with somewhat small habitat areas such as the gopher frog, the Organizations believe that looking at habitat issues for larger ranging species, such as wolves, grizzly bears, lynx or wolverine is also important. Often the definition of habitat for these wide-ranging species is based on the mere sighting of a species in the area. Much of habitat designation discussions on these species does not center on habitat that the species depends upon, but rather focuses on the belief that the species prefers the area resulting in some interests asserting the area should be habitat despite the lack of consistent usage.

Too often decisions are based on passion and relying on passion instead of science when addressing habitat results in conclusions on habitat designations across species boundaries that are foundationally in conflict with basic issues. Some species have critical habitat that includes only occupied habitat while other species have designated critical habitat that is almost entirely unoccupied. The Organizations submit that critical habitat should be similar in terms of issues such as occupation of the habitat by the species. Differences in management or designation criteria should rely on legal factors for habitat designation decisions such as if the species is threatened or endangered for ESA purposes. The Organizations submit that creating a STRONG definition of “habitat” will serve a check towards rebalancing the relationship of the scientific process with the passion of possibly saving a species from extinction. This rebalancing will bring greater consistency to the ESA critical habitat process and in turn build public support for these efforts. This public support is growing more critical everyday simply due to budget limitations but also due to issues such as some species rely on voluntary conservation measures on private lands for their survival.

It has been the Organizations experience that the current species by species management process of this issue has resulted in conclusions for the management of these areas that simply cannot be reconciled or based on solid scientific theory. This is simply not good management and erodes public support for the ESA and related management. The Organizations would support a strengthening of the either definition to include a requirement that habitat must be lands that the species depends upon for basic life function in order to avoid areas that a species prefers being designated as critical. The Organizations would also submit that specific life functions for the species be identified and that habitat designations must discuss in some detail how the proposed habitat relates to these general functions. The Organizations are unsure why dependency is present in the first definition but is omitted in the second and the Organizations believe this is an important concept in the definition in order to avoid designation of habitat simply because a species prefers a specific area.

The Organizations would ask that we be included in any further public efforts, collaborations or other efforts around this initiative as this issue and challenge is very important to our members.

Please feel free to contact Don Riggle at 725 Palomar Lane, Colorado Springs, 80906, Cell (719) 338- 4106 or Scott Jones, Esq. at 508 Ashford Drive, Longmont, CO 80504. His phone is (518)281-5810 and his email is scott.jones46@yahoo.com.

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
IRC, TPA & COHVCO Authorized Representative

Don E. Riggle
Director of Operations
Trails Preservation Alliance

1 See, 16 USC 1531 (b) emphasis added.
2 See, 16 USC 1537a(e)(2)(b) emphasis added.
3 See, Proposal at pg. 6.
4 See, Wikipedia.com; definition of scientific modeling @ https://en.wikipedia.org/wiki/Scientific_modelling accessed September 1, 2020
5 See, Zwilling, Martin: 7 Steps for Establishing the Right Business Model; January 30, 2015.
6 See, https://www.wikihow.com/Make-a-Mathematical-Model
7 See, Orloff & Strong; Models for planning wildlife conservation in large landscapes; 2009
8 See, Millspaugh et al; Models for Planning Wildlife Conservation in Large Landscapes, Elsiver Publishing 2009 at pg. 5. Internal citations omitted
9 See, US Fish and Wildlife Service; Proposed Rules; Endangered and Threatened Plants and Wildlife; Designation of critical habitat for the Mississippi Gopher Frog; Federal Register; Vol. 75, No. 106 pg. 31387; Thursday, June 3, 2010 at pg. 31394.
10 See, US Fish and Wildlife Service; Proposed Rules; Endangered and Threatened Plants and Wildlife; Designation of critical habitat for the Mississippi Gopher Frog; Federal Register; Vol. 75, No. 106 pg. 31387; Thursday, June 3, 2010 at pg. 31404.
11 See, https://wildlife.org/epic-wolverine-journey-ends-in-north-dakota/
12 See, https://www.idahostatesman.com/news/local/news-columns-blogs/letters-from-the-west/article226870904.html
13 See, https://species.idaho.gov/wildlife-species/woodland-caribou/
14 See, https://apnews.com/427d074bd86ce430a8d6e343dc38cb6a
15 A copy of this review is available here: https://www.sciencedirect.com/topics/earth-and-planetary-sciences/wildlife-habitat
16 See, US Fish and Wildlife Service; Proposed Rules; Endangered and Threatened Plants and Wildlife; Designation of critical habitat for the Mississippi Gopher Frog; Federal Register; Vol. 75, No. 106 pg. 31387; Thursday, June 3, 2010 at pg. 31395.
17 See, https://www.fws.gov/mountain-prairie/es/gunnisonSageGrouse.php
18 See, https://www.fws.gov/mountain-prairie/pressrel/2019/10312019-Draft-Plan-to-Guide-Recovery-of-the-Gunnison-Sage-Grouse-Open-for-Public-Comment.php
19 See, https://fws.gov/mountain-prairie/es/preblesMeadowJumpingMouse.php
20 See, 16 USC §1604 g(3)(B)
21 See, https://www.fs.usda.gov/detailfull/riogrande/landmanagement/planning/?cid=stelprd3819044

Introduction:

TPA’s role in helping to develop Colorado Parks and Wildlife’s (CPW), Planning Trails with Wildlife in Mind Guide and the Advisory Group for the development of the Guide.

The TPA was selected to help represent motorized interests and motorized recreational uses in the development of CPW’s revised guide for Planning Trails with Wildlife Mind and participate in the Planning Trails Advisory Group.  The original document was titled Planning Trails with Wildlife in Mind (A handbook for Trail Planners) and was developed in 1998.  Goals of this revised and updated document include helping people, organizations and groups to be proactive in considering wildlife when thinking about trails, trail planning, and management.  The document will also include guidance for what wildlife issues should be considered for trails grant applications.  The TPA is one of many organizations and representatives selected to participate on the Advisory Group.  Below are the comments submitted by the TPA regarding the initial draft Outline for the Planning Trails with Wildlife Mind Guide:

Planning Trails with Wildlife in Mind

Comments for the

Draft Planning with Wildlife in Mind Outline

• The document/guide simply needs to provide a balanced range of options for projects, as the current edition fails to provide reasons to build trails or discuss minimal impact options. Resources such as The Great Trails Handbook by Dick Dufourd and NOHVCC must be listed and utilized as a reference and source of information.  The vast amount of interagency trail planning and building expertise contained in this reference and the quality of information therein cannot simply be disregarded or ignored.
• The draft document/guide should address the benefits of the motorized trails program – this is a huge resource that has a proven track record of mitigating impacts from all types of recreational activity. The guide could assist in building support for similar programs from other interests.
• To facilitate clarity, prevent the possibility of confusion and to avoid an inappropriate hierarchy of biased priorities, it will be important to state early in this document/guide that Wildlife is not “the” priority or the “only” resource to be considered when planning trails. Wildlife is “a” resource, just like all of the many other resources upon the landscape that must be sustained, managed and appreciated when planning, developing and maintaining trails for human recreation.
• The document/guide should address some level of a social component of the relationship. There is not enough emphasis in the document/guide on restoring and re-building trust between managers (e.g., wildlife specialists, resources managers, land managers, government agencies, etc.) and the affected recreational user groups.  Based upon past decisions and actions, there is undoubtedly disparity between different recreational trail user groups and their perceived level of trust and confidence in processes such as this one to fairly consider and honestly balance wildlife concerns with human recreation pursuits.  In order to garner future public collaboration and ensure effective, open communication, there absolutely must be trust restored between the public (especially affected recreational user groups) and managers.
• Seasonal closures must apply to ALL user groups and not discriminate against any single user group or class of user(s). If closure is indeed necessary and important, than closer must apply to ALL users, not just some.
• How can “The Science” be challenged, refuted, updated, revised or appealed? A process for challenging “The Science” must be addressed, outlined and specified in this document/guide since science, technology and opinions will evolve and change over time and this document/guide must contain provisions for challenging and updating “The Science”.
• Chapter 2 states “ Engage Biologist Advisors”. It is equally important to “Engage Recreation Advisors and Users”.
• Chapter 1 states “Be open to a “no-trail” option. Concerned stakeholders must be equally OPEN minded to other options (i.e., a sustainable, high quality trail option) and work as diligently and conscientiously to find a trail based solution as a “no-trail” solution.  This is an example of a situation where balanced solutions must be provided.
• The document/guide should also address issues or challenges where recreation is not the primary threat, but rather a marginal or low-level threat. The level of response needs to be related to and correlate to the level of threat of the activity to the species.  This should apply fairly and consistently to all real or perceived threats and not just for recreation.
• How will this document work to enable for the enhancement, and improved quality of recreation along with growing and expanding recreational opportunities and not just be used to curtail, limit or restrict recreational opportunities?
• A trail and or trail based recreation is also a resource (just like all of the many other “resources” upon the landscape). Multiple-use, trail based recreation must have parity with all of the other resources in a program.  Elimination and closure of trails or failure to meet a growing demand for trail based recreation will simply invite and encourage bad human behavior.

US Department of Interior Director,
BLM Mail Stop 2134 LM
1849 C St. NW
ATT: RN 1004-AE72
Washington, DC 20240

Re: Proposed regulations of Electric Bicycles – RN 1004-AE72

Dear Director Pendley:

The above Organizations welcome the opportunity to provide input around the use of electric bicycles on federal public lands (“The Proposal”) and we are aware of the long and highly conflicted nature of discussions around e-bikes. There are many aspects of the Proposal that the Organizations can support. The Organizations support the use of electric bicycles on motorized trails, as e-bikes are by definition a motorized off highway vehicle. The Organizations also support one of the foundational conclusions that appears to be driving the e-bike discussion, mainly that there are insufficient opportunities provided for multiple use trails in many locations. We also could support the expansion of the existing trail network for the benefit of all users of these trails and we have to believe these opportunities would be vigorously supported by the OHV programs in western states that are major partners with federal land managers for basic operations.

The Organizations would vigorously oppose the loss of any existing motorized trails for the exclusive use of bicycles or e-bikes or the acceptance of any costs for management of e-bikes in terms of signage or other restrictions around the implementation of a new e-bike regulation. The Organizations would also be opposed to any regulations being prepared that could create the appearance of increased levels of violations from traditional motorized vehicles when e-bikes are used in violation of the proposed exception to the existing Executive Orders. The Organizations are concerned that while the traditional motorized community has avoided this discussion, and obtains no benefits under the current Proposal, these partners will be left to pick up the pieces from a poorly developed proposal. That should be concerning to everyone. The Organizations submit that the foundational issue in the discussion, mainly the lack of authority to create what is really a low power vehicle exception to the Executive Orders for the benefit of the E-bike community.

The Organizations also believe it is critical to clarify that we are assuming the Proposal is excluding the use of e-bikes from winter groomed routes traditionally used by OSVs. If the use of e-bikes on these winter groomed routes is within the scope of the Proposal, we would welcome a discussion of that issue as we have serious concerns around that usage given the challenges this type of recreation has encountered with the USFS over the last decade.

The Organizations would welcome discussions with DOI regarding the management and operation of e-bikes on federal public lands and more importantly how to expand access for all forms of recreation in a more efficient and effective manner.

1. Who we are.

Prior to addressing the specific concerns of the Organizations regarding the Proposal, we believe a brief summary of each Organization is needed. The 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 100 percent 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. The Idaho Recreation Council (“IRC”) is a recognized, statewide, collaboration of Idaho recreation enthusiasts and others that will identify and work together on recreation issues in cooperation with land managers, legislators and the public to ensure a positive future for responsible outdoor recreation access for everyone, now and into the future. For purposes of this correspondence TPA, COHVCO, CSA, and IRC will be referred to as “The Organizations”.

The Organizations and our members have also partnered with the USFS/BLM/other federal managers and state level parks and recreation programs (generally referred to as “land managers” for purposes of these comments) for decades in addressing trail related maintenance issues of all sizes through the voluntary registration fees for OHVs and OSVs that have been adopted in the several states. These registration programs started around grooming of winter trails for OSV recreation in the 1970’s and remain the only source of funding for winter grooming of routes generally on USFS lands. Seeing the success of these programs the OHV community soon adopted similar voluntary registration programs in the 1980s. These programs are some of the longest, largest and strongest partnerships in place with land managers. As an example, the Colorado Parks and Wildlife motorized program provides between $5 and $6 million in direct funding to projects that results in almost 60 maintenance crews for summer and winter trails and extensive project specific funding. The California OHMVR program easily provides five times this amount of funding to the land manager offices in California. The State of Idaho program also provides land managers more than $1 for every resident of the state to support trail maintenance. Each of these State level partnerships is leveraged with countless volunteer hours and support, in a huge range of roles from volunteer labor on projects, to engineers volunteering time to design bridges and heavy equipment businesses working for the cost of fuel from the programs and many of the programs funded would simply cease to exist without this volunteer support. This volunteer support which multiplies the impact of this funding to have an impact on the ground of spending several times more money that comes from these programs. This intangible benefit is a critical component of the success of these programs and protecting this intangible would be a major benefit of an e-bike policy that avoided conflict and benefitted all uses.

These programs are often becoming the only funding that is available for recreational maintenance efforts on many districts/offices and as a result these programs are being asked to do more and more work with a somewhat consistent funding stream. As a result, the efficiency of efforts and expanding partners in these efforts are becoming a larger and larger priority every day in order to continue to provide basic access to all users. The Organizations believe that the Proposal would be a step towards achieving this efficiency and strengthening the partnerships.

2. Executive Summary.

1. The Organizations are not opposed to the use of electric bicycles on motorized trails but cannot overlook the fact that e-bikes are a motorized off-highway vehicle under the definition provided in EO 11644 and 11989 making the current proposal problematic if there should be a legal challenge. The Organizations are simply unaware of any Congressional or Presidential grant or designation of authority to land managers that would allow the creation of a low power vehicle type exception in the EO addressing Travel Management. Courts reviewing rule making under the EO have been very consistent in applying a very strict level of interpretation to the EO, and this simply cannot be overlooked. Unlike Congressional designations for classification of e-bikes as low power vehicles for on road usage, there are no similar provisions provided in the EO.
2. Rather than creating additional user conflict, on an issue that has already been the basis of explosive conflict between many user groups, the Organizations submit the regulations should focus on common grounds between all user groups, which is the lack of high-quality trails in significant portions of the country. From the motorized perspective there are very few areas of the country that provide high quality trail experiences on a large scale. While the Organizations appreciate the use of old roads for motorized opportunities, these simply are not a trail and for our users the experiences are significantly different. In addition to significant demand for more dedicated trail opportunities, the Organizations would note that our users have access to the resources to partner with land managers to build and maintain new trails, unlike many other user groups.
3. The Organizations are opposed to the loss of any motorized trails in an attempt to create e-bike only trail networks in a manner similar to the Tahoe NF.
4. We are unable to support the distinction provided around the use of off-highway vehicles that is proposed in Secretarial Order 3376 based on a consumer product safety commission decision regarding the use of e-bikes on highways. Most traditional OHVs have never been identified as motor vehicles for purposes of on road usage but have never been excluded from the application of the travel management rules. The Organizations submit that the basic definitions of motorized off-highway vehicles provided in the EO must be updated and could possibly include a provision that excluded low power vehicles from the application of the EO moving forward.
5. Any regulation for the use of e-bikes must be simple and easy to use so the public will understand the regulations and the current proposal is neither. This is a significant concern for the Organizations as currently any e-bike being used outside the regulations would be a “motor vehicle off trail” and create the appearance of a significant increase in traditional motorized vehicle improper use, which will immediately renew assertions for needs for further restrictions. This situation is unacceptable to the Organizations.
6. The Organizations support a single definition for e-bikes as it has been our experience that most e-bikes do not conform to the existing classes in some manner or another and often determining the basic information about a particular unit is exceptionally difficult as the information is not provided on the unit. This type of issue will make any enforcement of classes very difficult. The Organizations believe that a simple and consistent definition will help reduce the astronomical user conflict that has surrounded these discussions since it has started. The effective and simple definition of these vehicles avoids the situation where the traditional motorized community is drawn into additional rounds of travel management or enforcement as a result of e-bike usage being outside their class on a particular route being recorded as a motor vehicle off trail.

2a. E-bike discussions to date have created huge amounts of new user conflict.

Prior to addressing more specific concerns the Organizations have around the Proposal, the Organizations would like to address some of the larger landscape level concerns that have been encountered on this issue to date. These are: 1. The huge amounts of user conflicts around e-bikes; 2. Poor engagement of agency leadership on the e-bike issue; and 3. The vigorous desire of the Organizations not to lose existing opportunities in the e-bike efforts.

Historically, the Organizations have avoided the large and ugly fights that have resulted from the mention of possible usage of e-bikes on trails that have historically been “hike or bike” or “bike only” at the local and state levels. These are geographic areas that the motorized community has generally never expect to be providing any access for traditional motorized usage as these areas often have been urban parks or greenway areas. Despite the limited difference between an e-bike and traditional bicycle, we will say the conflict around this issue has been astonishing. Members of the Organizations have been approached by both e-bike advocates and traditional cycling groups in the attempt to build coalitions on the e-bike issue, which we have declined to date. Simply declining to take a position has resulted in conflicts.

The Organizations are concerned about possible impacts to traditional motorized access and would also like to avoid being involved in the large fights that are involving e-bike proposals such as the legal challenges to the NPS proposal and Tahoe NF decisions. While our efforts to engage with the federal decision makers on the e-bike issues have met with little response, the decision-making process around e-bikes has continued. The forest level decision via a Categorical Exclusion (“CE”) to treat certain electric motor vehicles differently than traditional motor vehicles is exemplified by the Tahoe National Forest recently proposing to add more than 200 miles of trails for certain classes of e-bikes to their trail network with no public input or analysis. This was highly frustrating to the traditional motorized users for two reasons. The first reason was that when the CE was published our users called the forest and were informed the 200 plus miles of trails were e-bike only trail. Frustration was immediate as a significant portion of these routes were historically motorized routes and been the basis of extensive NEPA analysis. While this was subsequently corrected, the damage to relationships was done.

The second concern around the Tahoe NF use of a CE is this created significant consternation for many in the motorized community given the decades of effort to preserve multiple use access of all forms on the forest. This includes multiple law suits, some of which the Organizations intervened in defense of the agency decision on, the development of multiple forest level EIS that have gone into preserving any motorized access to the forest for summer and winter usage. Conflict between the use of a CE creating an entirely new trail network and the current situation around winter motorized usage on the Tahoe NF is astonishing and creating huge conflict as the very usage of winter motorized equipment on the Tahoe NF has been the subject of decades of litigation and EIS development that remains unresolved. The motorized community submits this basic inequity in process must be avoided in the future and it is often these unintended consequences of e-bike efforts that directly and materially negatively impact the traditional motorized community. We would like to avoid these issues moving forward as strong messages can be sent to groups outside of the direct scope of discussions. Basic fairness should require a consistent application of regulations expanding or restricting access. While the Organizations are aware that the USFS and DOI are separate agencies, the message was troubling on the e-bike issue and public engagement.

2b. Poor engagement of federal managers to date must change.

The Organizations have also had extensive discussions around the use of e-bikes with local and regional staff in a variety of agencies outside of federal lands, and these discussions have been reasonably open and candid when the conflict between other user groups is removed. While these discussions have been open with state and local government managers, discussions around e-bikes with federal managers addressing this issue has proven to be more difficult, especially moving up the management chains of these agencies. While we have welcomed some discussions with leadership in the last year, these have been highly conceptual and outside formal processes. The Organizations have also been consistently approached by more localized federal land managers, such as Ranger District or Field Office staff, who are seeking to obtain basic information on proposals that might be under development in their agency. This is both unusual and troubling and generally not how the process is supposed to work.

The above Organizations have attempted to engage in the more formalized discussions around this issue for almost 2 years now, including broadly issuing a correspondence to President Trump and various land managers asking to participate in the discussions on this issue. We did not receive any response on this effort. ¹ The Organizations were provided information from State Partners around the collaborative efforts that had been ongoing with the Department of Transportation discussing the usage and management of e-bikes. These meetings were seeing wide ranging participation from USFS and DOI representatives. We immediately asked DOT to participate in these efforts and they immediately ceased without explanation. While the Organizations are aware that DOT and DOI are entirely separate agencies, this decision did not alter the unique and troubling course that the e-bike discussions have taken to date.

While the failure of federal decisionmakers to engage partners on the e-bike issue is an anomaly, as the Organizations have enjoyed closer working relationships with federal decision makers on almost all other issues than ever before, this anomaly is highly frustrating none the less. The Organizations would ask to become actively and meaningfully involved in formal efforts around e-bike usage moving forward, as we do have concerns on the issue.

2c. The Organizations are opposed to the loss of any trails for e-bike only opportunities

The Organizations must clearly state we are vigorously opposed to the loss of ANY motorized trails for designated e-bike usage. The traditional motorized community has endured too many decades of trail loss and restriction through the travel management process to support any loss of further trails. While the Proposal clearly states that there are no on the ground changes being made, the Organizations must state this is an overly narrow and short-sited view on this issue. The rulemaking is going to trigger huge amounts of NEPA analysis, extend comically limited federal land manager budgets, often reopen painful decisions previously made around trail networks and create user conflict in areas the motorized community has hoped were settled. The Organizations are opposed to this summary of the Proposal and are very opposed to the possible designation of existing motorized opportunities for the use of e-bikes only.

3a. Definition of an off-highway motor vehicle is VERY broad in EO.

The Organizations believe the first component of common ground is the desire to build a trail network that provides quality trail based opportunities for all. The Organizations believe there is a second component of common ground around resolution of the e-bike discussion and is the need to revise and update the Executive Orders governing the use of motorized off-highway vehicles on federal lands. These Executive Orders are simply out of date in a large number of issues, such as low power vehicles and the minimization criteria. The motorized community has offered to partner on this issue with e-bike advocates but to date these offers have not been accepted. Most parties we have reached out to do not seem to even understand that the Executive Orders, not agency regulations are the source of the E-bike issues. Rather than partnering to address this foundational challenge, e-bike access has sought to be achieved by trying to “work around” this issue. To date this has not worked and the Organizations do not believe there is a work around for e-bikes on this issue due to the exceptionally broad nature of these definitions. Under current definitions in the EO, an e-bike is an off-highway motor vehicle and the EO lack nay ability to provide for an exclusion for low power vehicles, similar to those often provided for in the federal highway systems or state level vehicle management provisions, such as titling and registration.

The Organizations submit that it is important to start the discussion around e-bikes from the origins of Travel Management as a concept, as the foundation of travel management as a concept is where e-bike challenges must be addressed. Travel Management originated with President Richard Nixon’s issuance of Executive Order 11644 in 1972. EO 11644 provides as follows:

“(3) “off-road vehicle” means any motorized vehicle designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain; except that such term excludes (A) any registered motorboat, (B) any fire, military, emergency or law enforcement vehicle when used for emergency purposes, and any combat or combat support vehicle when used for national defense purposes, and (C) any vehicle whose use is expressly authorized by the respective agency head under a permit, lease, license, or contract; and”²

Given the exceptionally broad and encompassing definition of a motorized off-highway vehicle that is provided in the EO, the Organizations are not able to create a legally defensible path forward for a determination that an e-bike is not a motorized off-highway vehicle. While we could support the concept of a low power vehicle exception for travel management, the current EO have no basis for such a designation.

There has been a lot of effort directed towards finding a path around this definition for e-bikes or relying on an exception that has been created in agency regulations applying the EO, such as BLM travel provisions in 43 CFR 8340, the Organizations are not optimistic on the long-term success of such an effort when the inevitable court challenge to the rule is brought. Courts have been very strict in the interpretation of the EO on Travel Management making any agency-based exceptions, such as those found in BLM travel management regulations, problematic. The Organizations would submit that finding a permanent resolution of this issue is preferred to simply trying to carve an exception to the rule that lack factual basis.

The most recent interpretation of the Executive Orders the Organizations are aware of involves a court challenge to the USFS Winter Travel Management Rule. The USFS winter travel rule sought to carve a very limited exception in the EO that allowed only forests that received enough snow to warrant winter travel management to have to comply with this portion of the rule. In our interpretation, the flexibility of implementation made a huge amount of sense both on the ground and for efficiency. When the implementation of the Winter Travel Rule was challenged, the Court struck the rule down and forced the USFS to prepare a new Winter Travel Rule.³ In the Organizations opinion, the USFS distinction made sense on the ground and was rationally based and had a stronger legal defense than any of the exceptions in the BLM travel management regulations that are being relied on in the e-bike discussions. ⁴ Given this strict application of the EO in rulemaking and related interpretations, the Organizations are not optimistic on the success of BLM regulations allowing the agency to declare vehicles not a motor vehicle when the inevitable court challenge starts as there is no provision in the EO that allow such a decision. This is a major basis for concern as the Organizations would like to see a path forward on the e-bike question that has a strong degree of success should there be a court challenge.

The Organizations are aware that there has been a lot of discussion around the e-bike issue and possible resolution of the issues based on a theory that land managers have the authority to carve an exception to the EO in a manner similar to that of the low power scooter exceptions for on road usage. While this might be appealing, this direction also fails to address one critical distinction in the discussion. Management of low power scooters and vehicles has a Congressional authorization for this exception to the general regulation of vehicles.⁵ Low power scooter requirements for on road usage have an extensive legislative delegation of authority to address the registration and usage of a low power scooters for on road usage.⁶  The Organizations are not aware of any similar delegation of authority for the regulation of e-bikes under the EO. This is a foundational issue that again must be addressed. The Organizations support the use of e-bikes on motorized routes but again must express concern over this foundational position in the e-bike discussion.

3b. Creating exceptions to the Executive Order is inferior to the creation of a new Order as there will be extensive unintended consequences to the exceptions model.

Under current proposal, agencies are seeking to create an exception to the Travel Management Rule rather than addressing the restrictions and requirement of the Travel Management EO directly. The unintended consequences of this model of management to other user groups could be significant and must not be overlooked. The impacts of such a management model are very concerning to the Organizations due to the impacts of user attempting to use the exception and then failing to comply with the requirements. The traditional motorized community has little interest in reopening many of the issues in the travel management process that have generally been resolved. This interest is even less when the reopening painful decisions could result in significant unintended consequence of management decisions that are targeting uses that don’t identify as motorized and may create the appearance of expanded bad behavior from the traditional motorized community.

Currently, the Proposal seeks to create an exception to a very broad rule. The Proposal fails to address the fact that even with the exception that is created, an e-bike remains a motorized off-highway vehicle by definition. This default management position opens the door for significant unintended consequences to other users. If an e-bike user is outside the exception created by the Proposal for whatever reason, they will be managed and recorded as a “motor vehicle off trail.” The Organizations are very concerned that this will create the appearance of a large number of new violations being present in the traditional motorized community and that such a perceived spike in violations will reopen fights and conflicts around areas and issues that we have already resolved.

In addition to the possible spike in perceived violations from e-bikes being operated outside the exception that has been created, education of motorized users to “stay on the trail” has been a priority for the motorized community for decades. These efforts have included partnerships with the Tread Lightly efforts, around their “Ride On” efforts for all motorized users and the role out of the “Are you certifiable?” educational efforts targeting the side by side community, to creating the Stay the Trail Program in Colorado. These partnerships have received millions of dollars directly from the industry, millions more in direct funding from state level OHV programs and huge amounts of volunteer labor from the end users. These efforts have been very successful and as a result we would like to see these positive benefits not eroded or diminished. We would also be hesitant to lead any discussion around management and education of e-bike users as these users simply do not identify as a motorized user. The Organizations are not aware of any other user group that has directed the direct funding and labor towards the education of their users and this partnership has not only been highly valued by land managers but also by users and industry as no other user group has approached this type of partnership.

The Organizations submit that creating a new rule and Executive Order that permit the management of low power type vehicles, in a manner similar to the management of low power vehicles for on road usage, will create a more effective management model that will mitigate many of these concerns. The Organizations would welcome discussions on this issue, but right not the authority is not provided for in the outdated Executive Orders and as a result could easily create the appearance of issues where there really are none.

3c. CPSC determinations have never had bearing on the scope of an off-highway motor vehicle for travel management purposes.

Throughout the e-bike discussions the have had with advocates and some land managers, the fact that the CPSC has determined e-bikes are not motor vehicles for on-highway usage purposes is frequently identified as dispositive for the management of e-bikes in an off-highway situation. The Organizations are simply not able to identify the relevance of this determination, governing the use of e-bikes in an on-highway situation to the use of off-highway vehicles on federal public lands. These are generally mutually exclusive designations. Most vehicles, such as snowmobiles, ATVs, side by side vehicles and off-road motorcycles that have always been subject to the travel management rules, have also been consistently identified as not being motor vehicles for CPSC management purposes.

The Organizations support the decision that e-bikes are generally outside the traditional requirements of a motor vehicle for on road usage. Any assertion that an e-bike should have windshields, mirrors and crumple zones for use on highway, and emissions requirements in a manner similar to a full motor vehicle, makes little sense. This makes no more sense than requiring a side by side designed for off-highway usage to comply with all emissions and protection equipment required for on-highway usage. They simply are different usages.

Recognition of such an arbitrary decision not only fails to address the underlying issues with e-bikes, which is the lack of Congressional or Executive Authority for the exception proposed. This arbitrary recognition of an on-highway decision governing off-highway usage creates user conflict between the e-bike community and all other trail users. This is a major concern for the Organizations as one of the consistent messages we hear from land managers is the desire to reduce and avoid user conflict on trails. Here we are presented with a situation that appears to be creating user conflict and the Organizations submit that is an indication that there are better manners to expand access to public lands. This is less than optimal and the Organizations submit that all trails user should be treated similarly under existing law.

3d. State registration programs for OHVs for off-highway is not relevant to decisions around the motorized nature of an e-bike for use on federal public lands.

The Organizations are forced to address the consistent and wildly incorrect summaries of many of the State OHV programmatic requirements for the registration of OHVs for use on public lands. These summaries are often then asserted to be a basis for the designation of an e-bike as a non-motorized vehicle. These summaries are simply offensive to the Organizations and our many member groups that helped craft these OHV registration programs and regulations and we believe must be accurately addressed in these comments to ensure these decisions do not become the basis for inaccurate decision making.

Generally, most state regulations requiring the registration of OHVs for use on public lands do not address the propulsion of the vehicle or if the vehicle is or is not a motorized vehicle with regard to on-highway usage. Most of these programs and statutes create a separate method to register OHVs as “Off-highway motor vehicles” to avoid any discussion about use of these vehicles on federal and state highways regardless of how the vehicle is propelled. Similar to the CPSC, these programs recognize OHVs are motorized vehicles but are only allowed off-highway and are subject to entirely separate regulations from on-highway usage.

The management of OHVs in Colorado, which is frequently identified as an example registration program is a perfect example of where these inaccurate summaries by many interest groups are immediately evident. The Organizations are aware that this model is consistently applied for the management of OHVs in most states with a registration program. In Colorado, usage of e-bikes for on road usage are governed by Colorado Vehicle and Traffic laws pursuant to CRS 42-1-101 et seq. Colorado provisions for the usage of e-bikes do allow them to be recognized as low power vehicles under the statutory provisions for these types of vehicles and requires several provisions of law be complied with for their usage such as insurance and driver’s licenses. E-bikes are also specifically identified as a low power motor vehicle and not a motor vehicle for purposes of registration for on road usage. They are a separate class of vehicles for on-road usage.

The registration of OHVs for recreational usage on public lands is an entirely separate statutory process administered by the Colorado Parks and Wildlife agency and governed under CRS 33-14.5-101 et seq. Colorado only requires registrations for recreational usage of these units on public lands and does not require registration for usage on private property or for units that are used for agricultural purposes and many other usages outlined in 33-14.5-102(6). In Colorado, registered OHVs are not required to have insurance and operators are not required to possess a rivers license. It is interesting to note that while there is a low power vehicle exception in provisions for use of vehicles on road, there is no similar provision in the OHV program legislation.

The Organizations are also aware that there have been discussions about the possible registration of e-bikes under the OHV program and the applicability of existing reduced requirements around the registration requirements for E-bikes for on-road usage. These groups and programs have not pursued registration of e-bikes for off-road usage simply due to a desire of our members and state agencies to avoid the massive amounts of user conflicts and fighting that has surrounded e-bikes since their inception. There simply are not registration stickers to be sold to offset the conflict and years of effort that would be required to address the issue. This should not be taken as an acceptance that an e-bike used for recreation on public lands is not a motor vehicle as these are two entirely separate decisions and concerns.

The Organizations submit that inaccurate summaries of the usage of OHVs and associated registration programs created by our members provide a compelling reason for significantly expanded involvement of the motorized community in e-bike discussions moving forward. Often it is our members that have created the OHV programs and can explain the technical nature of provisions of these programs in great detail. Almost unanimously, the reasons and provisions around the inclusion or exclusion of e-bikes in State registration programs are very different than those outlined in discussions on e-bikes by those not involved with these programs. For this reason alone, the Organizations submit that the involvement of the motorized community in these discussions moving forward. Managers simply need accurate information around why decisions are made in state registration programs for off-highway motor vehicles and our members generally are the experts on the program history and direction.

4. Equity of all electrical usages should be addressed.

As the Organizations have noted throughout these comments, the e-bike discussion has triggered an exceptional amount of user conflict with many groups. While most of this conflict has been centered around the e-bike community and mechanized and foot-based interests, there is one facet of the discussion that touches on the more traditional motorized community. This conflict has been based around the disparate treatment of some forms of electric vehicles when compared to the wide range of electric vehicles on the market currently. Electric forms of many vehicles are available and possess many of the same benefits as an electric bicycle, such as reduced sound, easier maintenance and improved access to public lands for many of the owners. It is worth noting that off road electric golf carts have been around for extended periods of time and we are not aware of any discussion about managing those vehicles outside the travel management requirements.

Electric vehicles are currently present in every form of traditional OHV and despite some being on the market for extended periods of time, the Organizations are not aware of any discussion around altering the travel management requirements to expand access for these e-vehicles. Some of these vehicles have become common place in many areas, where comparable gasoline powered vehicles would be unheard of, such as maintenance operations of urban parks and outdoor shopping centers.

These vehicles have included golf cart manufacturers improving suspension on a traditional golf cart:

⁷

Tesla offers a more off-road targeted vehicle similar to a side by side that is electrically powered:

⁸

Traditional manufacturers such as Polaris has been in the electric side by side market for an extended period of time.

⁹

KTM offers an electric off-road motorcycle:

¹⁰

Recently electric snowmobiles have come to the marketplace and the viability of these units is being explored by several large ski operations, such as Vail Resorts:

¹¹

The Proposal to allow the expanded use of e-bikes in areas historically closed to motor vehicles or close existing trails open to all to allow for e-bike only usage sets a precedent. The precedent being set is causing conflict, that does not exist currently. The Organizations would ask about the scope of precedent being set; mainly will federal land managers reopen travel management to allow for expanded access for other electric recreational users? Will winter travel decisions be reopened to allow for expanded access for electric snowmobiles? Will we allow expanded access for electric motorcycles or side by side vehicles? We are simply unable to envision a situation where expanded access would only be allowed for e-bikes, as many of the benefits from electric vehicles occur without regard to the type of vehicle is being propelled. While these benefits appear to be only accruing around e-bikes, electric side by sides, atvs, snowmobiles and full size 4×4 vehicles have been present in the market for extended periods of time already without planning for expanded access. Can this distinction be supported based on sound policy and rational?

5a. One rule for e-bikes on federal land would avoid the complications of the three class e-bike system.

The Organizations were surprised when separate rules were identified for the BLM, Bureau of Reclamation and USFWS, and that there were differences between the rules, such as some agencies specifically recognizing three wheeled versions of e-bikes while others were silent. This is in addition to the efforts that have been already undertaken by the National Park Service, US Forest Service and a multitude of state and local regulations for usage. This situation will result in an e-bike standard that varies widely based entirely on land management agency and that is simply impossible to educate users regarding and simply must be avoided. As the Organizations have noted in other portions of these comments, a simple, understandable and consistent rule for all vehicle is a priority for the Organizations.

Throughout the Proposal, 3 classes of e-bikes defined and are discussed but at no point is there any distinctions made for the application of these classes on the ground. This begs the question of why have classes at all? It has been our experience that most e-bikes are not really in conformity with any of the classes and those that are can be so easily modified as to render the entire class system useless. If the class system is not an important component of the Proposal, why would the additional complexity of the classes be required as the classes will be tough to educate the public regarding and difficult to enforce on the ground.

5B. Strict adherence to characteristics of the proposed classes of E-bikes is often highly variable.

The Organizations have had the opportunity the ride a wide range of e-bikes through our interactions at various trade shows, friends purchasing units and presentations at meetings with land managers or trails-based interests. Generally, the e-bikes we have interacted with have covered a wide range of capability and costs and have evolved quickly over the last several years. These units have ranged from: 1. A traditional bicycle originally created as an e-bike; 2. Kits to adapt an existing bicycle to an e-bike; and 3. Units many of our members thought reminded them of the small to medium sized motorcycle that they might have ridden as a child, when capability of suspension and size of the unit are compared. While there are a wide range of e-bikes available, this diversity really creates a lot of concern around the hard criteria that are proposed for the management of these units.

In this portion of the comments, we would like to summarize our experiences with these units on the ground and allow for explanation of why these experiences cause concern around the idea of classes of e-bikes as at no point have we found any unit that actually complies with these categories. The Organizations are not intending this list to be exhaustive by any means and would submit that this list is evolving quickly based on technology available. Our experiences are:

1. We are unable to identify the wattage on most units we have seen. It is basically not labeled on the unit, which presents an initial challenge for the class system that appears to rely on a 750-watt maximum. Many manufacturers offer bicycles that look identical but have a wide range of motors, some of which comply with requirements of 750 watts and others that far exceed this limit with minimal visual differences. If wattage is such an important component of the classes, why would this not be clearly labelled on the units?
2. “Pedaling” of these units to create forward motion appears to have a wide range of interpretation when various manufacturers are building units. Most of the units we have encountered rely on pedals in only an academic sense, as an exceptionally small amount of pedal effort allows full use of the electrical assist components of the e-bike. Rather than being an assist to pedaling the pedal set appears to be a switch allowing use of the electrical assist and often the pedal speed in no way relates to the speed of the unit on the ground.
3. The enforceability of the class principals is further complicated by the fact that almost every unit we have encountered can be easy modified in an almost infinite manner, pedals can be added, speed limiters alter or removed entirely, wattage increased to allow for improved performance at the cost of reduced range etc. Often appearances at trade shows have allowed us to inspect a particular e-bike in one booth and then talk to a vendor modifying that e-bike immediately next to the booth. Sometimes these vendors appear to be related.
4. Numerous e-bike manufacturers are offering multi-speed transmissions for their units. ¹² While we can see a valid use of a transmission in these units, as it greatly expands the efficiency of the unit, the insertion of a transmission in the equation complicates management as speed is far less a function of the size of the motor but is more a function of the number of gears and gear ratios available.

While the Organizations are not submitting this list as exhaustive, but rather are using these issues as examples of why we are concerned with the overall class models that are proposed. The Organizations submit that these are generally issues that must be addressed with the e-bike community but the Organizations are concerned this flexibility of the classes can create the appearance of motor vehicles off trail as units operated outside their respective class will be cited as a motor vehicle off trail. The Organizations submit that amending and updating the EO mandating travel management to permit low power vehicles more generally is a better resolution of the expanded usage of these units than the proposed class system.

5c. Education and Enforceability must be priorities moving forward.

Introducing some type of separate e-bike classification system for trails, such as the Tahoe NF proposes, fails to address basic questions such as how would these routes be signed on the ground and who pays for this signage? We are not even aware of an e-bike sign that has been adopted by the USFS. While signage might appear to be a minor issue it is not for the motorized community, who provides extensive funding annually to land managers to ensure appropriate signage is available to educate motorized users where they can and cannot go on the ground. Since the motorized community has provided extensive funding for signage, we would like to be involved in discussions proposing a large-scale revision of existing sign standards. This would also be a major factor that is causing us concern around the impacts of a possible spike in the recording of motorized vehicles off trail.

6a. The Organizations are opposed to hard deadlines for completion of e-bike planning.

In section 6 of these comments, the Organizations would like to address a few of the more specific proposals that have been raised in discussions around the DOI E-bike proposals. The Organizations are aware of significant discussion around the need for a hard deadline or timeframe for the completion of NEPA around the e-bike discussion. The Organizations are vigorously opposed to the creation of any timeframe for the completion of e-bike related planning as there are too many variables in such a proposal. The Organizations are aware of significant portion of Department of Interior public lands that have not adopted a travel management plan in any form, and often for good reasons that are localized in nature. The ability of local managers to deal with local issues in a timely and effective manner should not be limited as in some offices the ability to use an e-bike is very limited simply due to topography or other natural conditions, such as Imperial Sand Dunes or St. Anthony Sand Dunes. Imposing an e-bike regulation in these areas would create exactly the type of overly generalized regulation that the DOI and Dept of Agriculture have worked hard over the last several years to avoid.

The Organizations would note that this lack of a timeline for completion of NEPA planning on an issue is not unprecedented. The USFS recently mandated no completion date for the review of winter travel management plans or creation of new winter travel management plans as a result of the settlement of winter travel rule litigation and subsequent rule making. This has been a point of discussion since this rulemaking but the Organizations vigorously support this conclusion and submit the precedent should be applied in e-bike discussions as well.

6b. Limiting motorized trails based on types of propulsion is a violation of the EO.

It has come to the Organizations attention that several groups are asserting that e-bikes should be managed under a limited motorized route, which the Organizations submit is probably a violation of the open closed or restricted to routes mandate of the EO. While the Organizations are aware that some offices have made the decision to restrict access to certain routes based on a natural characteristic, such as narrow terrain or to provide a specific recreational experience, such as a trail width of 36 inches or less to provide a single-track trail experience. The Organizations are not aware of any designations of this type that focus on how a vehicle is propelled.

7. Conclusion.

There are many aspects of the Proposal that the Organizations can support. The Organizations support the use of electric bicycles on motorized trails, as e-bikes are by definition a motorized off highway vehicle. The Organizations also support one of the foundational conclusions that appears to be driving the e-bike discussion, mainly that there are insufficient opportunities provided for multiple use trails in many locations. We also could support the expansion of the existing trail network for the benefit of all users of these trails and we have to believe these opportunities would be vigorously supported by the OHV programs in western states that are major partners with federal land managers for basic operations.

The Organizations would vigorously oppose the loss of any existing motorized trails for the exclusive use of bicycles or e-bikes or the acceptance of any costs for management of e-bikes in terms of signage or other restrictions around the implementation of a new e-bike regulation. The Organizations would also be opposed to any regulations being prepared that could create the appearance of increased levels of violations from traditional motorized vehicles when e-bikes are used in violation of the proposed exception to the existing Executive Orders. The Organizations are concerned that while the traditional motorized community has avoided this discussion, and obtains no benefits under the current Proposal, these partners will be left to pick up the pieces from a poorly developed proposal. That should be concerning to everyone. The Organizations submit that the foundational issue in the discussion, mainly the lack of authority to create what is really a low power vehicle exception to the Executive Orders for the benefit of the E-bike community.

1. The Organizations are not opposed to the use of electric bicycles on motorized trails but cannot overlook the fact that e-bikes are a motorized off-highway vehicle under the definition provided in EO 11644 and 11989 making the current proposal problematic if there should be a legal challenge. The Organizations are simply unaware of any Congressional or Presidential grant or designation of authority to land managers that would allow the creation of a low power vehicle type exception in the EO addressing Travel Management. Courts reviewing rule making under the EO have been very consistent in applying a very strict level of interpretation to the EO, and this simply cannot be overlooked. Unlike Congressional designations for classification of e-bikes as low power vehicles for on road usage, there are no similar provisions provided in the EO.
2. Rather than creating additional user conflict, on an issue that has already been the basis of explosive conflict between many user groups, the Organizations submit the regulations should focus on common grounds between all user groups, which is the lack of high-quality trails in significant portions of the country. From the motorized perspective there are very few areas of the country that provide high quality trail experiences on a large scale. While the Organizations appreciate the use of old roads for motorized opportunities, these simply are not a trail and for our users the experiences are significantly different. In addition to significant demand for more dedicated trail opportunities, the Organizations would note that our users have access to the resources to partner with land managers to build and maintain new trails, unlike many other user groups.
3. The Organizations are opposed to the loss of any motorized trails in an attempt to create e-bike only trail networks in a manner similar to the Tahoe NF.
4. We are unable to support the distinction provided around the use of off-highway vehicles that is proposed in Secretarial Order 3376 based on a consumer product safety commission decision regarding the use of e-bikes on highways. Most traditional OHVs have never been identified as motor vehicles for purposes of on road usage but have never been excluded from the application of the travel management rules. The Organizations submit that the basic definitions of motorized off-highway vehicles provided in the EO must be updated and could possibly include a provision that excluded low power vehicles from the application of the EO moving forward.
5. Any regulation for the use of e-bikes must be simple and easy to use so the public will understand the regulations and the current proposal is neither. This is a significant concern for the Organizations as currently any e-bike being used outside the regulations would be a “motor vehicle off trail” and create the appearance of a significant increase in traditional motorized vehicle improper use, which will immediately renew assertions for needs for further restrictions. This situation is unacceptable to the Organizations.
6. The Organizations support a single definition for e-bikes as it has been our experience that most e-bikes do not conform to the existing classes in some manner or another and often determining the basic information about a particular unit is exceptionally difficult as the information is not provided on the unit. This type of issue will make any enforcement of classes very difficult. The Organizations believe that a simple and consistent definition will help reduce the astronomical user conflict that has surrounded these discussions since it has started. The effective and simple definition of these vehicles avoids the situation where the traditional motorized community is drawn into additional rounds of travel management or enforcement as a result of e-bike usage being outside their class on a particular route being recorded as a motor vehicle off trail.

The Organizations would welcome discussions with DOI regarding the management and operation of e-bikes on federal public lands and more importantly how to expand access for all forms of recreation in a more efficient and effective manner. Please feel free to contact Don Riggle at 725 Palomar Lane, Colorado Springs, 80906, Cell (719) 338- 4106 or Scott Jones, Esq. at 508 Ashford Drive, Longmont, CO 80504. His phone is (518)281-5810 and his email is scott.jones46@yahoo.com.

Respectfully Submitted,
Scott Jones, Esq.
CSA Executive Director
IRC, TPA & COHVCO Authorized Representative

1 A copy of this correspondence is attached as Exhibit “1” to these comments.
2 See, EO 11644 §2
3 See, Winter Wildlands Alliance v. US Forest Service; Case No 1:11-CV-586-REB; March 29, 2013. We have enclosed a complete copy of this decision for your reference as Exhibit “2”.
4 See, 43 CFR 8340.0-5 (a)(3).
5 See, 15 USC 2085 et seq.
6 https://www.colorado.gov/pacific/dmv/low-power-scooter
7 https://www.trackeroffroad.com/all-purpose-cart.html
8 https://nikolamotor.com/powersports
9 https://ranger.polaris.com/en-us/ranger-ev-avalanche-gray/specs/
10 https://www.ktm.com/en/e-ride/freeride-e-xc/
11 https://taigamotors.ca/snowmobiles/
12 https://electricboardingco.com/products/himiway-cruiser-electric-bike?variant=31476868022339&utm_medium=cpc&utm_source=google&utm_campaign=Google%20Shopping

Sent via email to:

Recreation Planning Staff
Attn: Linda Skinner
Royal Gorge Field Office
Bureau of Land Management
3028 E. Main St.
Canyon City, CO 81212

Request for additional multiple-use, motorized single-track recreational opportunities within the Royal Gorge Field Office’s areas of responsibility

Dear Linda:

Please accept this letter on behalf of the Trails Preservation Alliance (TPA) requesting consideration by the Bureau of Land Management’s, Royal Gorge Field Office (RGFO) for additional recreational opportunities within the jurisdictional boundaries of the RGFO, specifically for multiple use, motorized single-track trails.

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

Albeit this letter has been unsolicited by the RGFO, the TPA would like to offer our suggestion for enhanced recreational opportunities available for motorized single-track riding opportunities in OHV recreational spaces such as the Seep Springs, Penrose Commons, Big Bend OHV Park and Texas Creek areas.

The TPA is offering these comments because we believe it is fundamental and important to highlight and emphasize that multiple-use, motorized single-track is a very unique and special recreational experience just like a “downhill mountain bike trail”. That riding motorized single-track is no different than the cherished single-track trail riding experience that is embraced by the mountain bike community. It is well documented through multiple local sources, maps and guides (e.g., BLM’s Colorado Recreation Guide 2017, Backyard to Backcountry,) that the trail network and associated recreational spectrum of recreational infrastructure within the Colorado Front Range has very sparse multiple-use, motorized single-track riding opportunities on both USFS and BLM lands. Most conspicuously, there exists very few motorized single-track riding/trail opportunities designated for beginners or intermediate level riders looking for that very special recreational experience of “riding single-track”. As stated earlier, motorcyclists appreciate and cherish the single-track riding experience just like mountain bike and horseback riders do.

The TPA would offer our support for the RGFO’s consideration of any additional multiple-use, motorized single-track riding opportunities within the RGFO’s jurisdiction. The TPA is available to provide our technical expertise in planning, selecting and designing new multiple-use, motorized single-track trails and enhancing the recreational experiences of off-highway motorcyclists. The TPA is also willing to provide letters of support in the future should the RGFO decide to apply for CPW OHV grant funding to plan and or construct multiple use, motorized single-track trails. The TPA also has limited financial resources of our own that we could be willing to commit to the RGFO for the construction of new or additional multiple-use, motorized single-track trails.

In summary the TPA requests and supports the RGFO’s consideration of new and additional multiple-use, motorized single-track trails. Please feel free to contact myself, Don Riggle at 719-338-4106 or info@coloradotpa.org.

Sincerely,
D.E. Riggle
Director of Operations
Trails Preservation Alliance

Chairman Peter Defazio
2165 Rayburn Building
Washington, DC 20515

Ranking Member Sam Graves
2165 Rayburn Building
Washington, DC 20515

RE: Support for HR 5797 “The Recreational Trails Program (RTP) Full Funding Act of 2020”

Dear Chairman Defazio and Ranking Member Graves:

Please accept this correspondence as the vigorous support of the Organizations above for HR 5797 “The Recreational Trails Program (RTP) Full Funding Act of 2020” (“The Proposal”). Prior to addressing our support for 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 100 percent 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. The Idaho Recreation Council (“IRC”) is a recognized, statewide, collaboration of Idaho recreation enthusiasts and others that will identify and work together on recreation issues in cooperation with land managers, legislators and the public to ensure a positive future for responsible outdoor recreation access for everyone, now and into the future. For purposes of this correspondence TPA, COHVCO, CSA, and IRC will be referred to as “The Organizations”.

We are writing to request that HR 5797, “The Recreational Trails Program (RTP) Full Funding Act of 2020” sponsored by Congressman Welch of VT and Congressman Curtis of UT be included in the transportation reauthorization bill currently being drafted in your committee. Without Congressional approval before September 30th, the program is at risk of going dormant, creating a huge void for recreational trail development and maintenance funding.

A. RTP funding is a catalyst for significant matching of funding from outside sources.

For more than a quarter-century the Recreational Trails Program (RTP) has been the key source of funding for recreational trails across all 50 states and the District of Columbia. Based on the “user-pay, user-benefit” model of the Highway Trust Fund, the RTP is funded from gas taxes paid by nonhighway recreational vehicles. The RTP is currently funded at $84 million annually but it is estimated that federal gas taxes paid by nonhighway recreational vehicles amounts to more than $270 million annually. HR 5797 would correct this inequity and return more of the gas tax dollars for off-road recreation and be directing this funding to hugely successful programs that could direct this money immediately on to the ground for the benefit of all recreational uses. The Organizations are also intimately aware that often small amounts of RTP funding are major catalysts for matching efforts from partners on projects.

In Colorado, the Organizations are intimately familiar with the benefits of the RTP program as our RTP monies are pooled with the voluntary registration program funds from OHV registrations through Colorado Parks and Wildlife Trails Program. As you are aware, most states do not apply RTP monies in this way but rather administer the RTP program through their Department of Transportation. The Organizations note these programmatic differences not to assert one administration model is better than another but rather to allow you to understand why we are able to identify these benefits so clearly. The result of this programmatic leveraging inn Colorado is the approximately $1.5 million in funding currently provided through RTP becomes more than $6 million in funding on the ground. While this leveraging significantly magnifies the impacts of the RTP program, funding of multiple use recreational access still falls well short of the funding needs on the ground, as we are facing unprecedented challenges such as poor forest health, in many of the recreational areas throughout the western United States. The existing RTP funding is critical in providing basic maintenance of trails throughout the State of Colorado and fully funding the RTP program would allow these maintenance efforts to significantly expand almost immediately for all types of usages. It has been our experience that the RTP model of funding provides the most flexibility in use of these monies, while LWCF monies have more restrictions in their funding and sometimes remain unused as a result. The flexibility of the funding in the RTP program is a major reason we are asking for the program to be fully funded. This funding is the easiest and fastest money to be able to use and provides basic safety for all users of these recreational opportunities as maintained trails are safe trails.

In Idaho, similar leveraging of RTP funding without registration based funding occurs consistently as well as Idaho administers the RTP program in conjunction with their user registration program. We would like to highlight three projects where RTP money was leveraged with registration funds and projects were able to undertaken that are much larger in scale than could ever be undertaken with RTP money alone.

1. Bear Valley Lakes National Recreation Trail Heavy Maintenance

This project completed significant maintenance on the Bear Valley Lakes National Recreation Trail, a motorized single-track trail in the Salmon-Challis National Forest. Lemhi County, the project sponsor, was awarded an RTP grant of $27,920 with $9,405 in matching funds. The trail was cleared of trees and rocks, the trail tread was maintained, and areas with erosion and drainage issues were addressed to improve the riding experience and reduce stream sedimentation. The county, along with the Youth Employment Program, US Forest Service staff and volunteers from a local user group completed the project.

2. Beaver Creek Trail Reroute

This current project in the Sawtooth National Forest was awarded $43,000 in RTP funds with a match of $30,000. A major component of the project is re-opening the Beaver Creek Trail. This motorized single-track trail has been impacted by recent fires and flooding, and the grant is funding crews and materials to reroute and reconstruct the trail to allow better motorized accessibility. The grant also provides funding for crews to clear and maintain Off-Highway Vehicle trails in the district to continue to provide OHV access. The project is being completed by US Forest Service Staff, local motorized user groups, and contracted trail crews.

3. Upper Boardman Creek Trail Bridge Replacement

This recently funded project will replace a trail bridge crossing Boardman Creek in the Sawtooth National Forest. This bridge, recently closed due to its unsafe condition, is located at a popular access point for more than 150 miles of trails in the area. It is also 100 yards up the trail from a trail bridge constructed in 2014 using RTP funds that spans the South Fork of the Boise River. This project benefits single-track motorized trail users and will be completed by the US Forest Service in the summer of 2020. The Forest Service was awarded $28,500 in RTP grant funding, with a match of $7,500.
The Organizations submit that fully funding of RTP would trigger far larger amounts of matching and leveraging of funds from outside sources. Often partner and outside funding continues well beyond the matching capacity of RTP money, but the lack of RTP funding to focus these efforts around means this money may not be as fully utilized as it could be. The RTP is always a catalyst for efforts and the Organizations vigorously submit that a fully funded RTP program would create benefits on the ground from this increased leveraging of funding that would far exceed the value of the increase in RTP funding.

It is worth noting that the RTP provides funding for motorized and non-motorized trails alike and is administered by the states who select the projects to fund. By law, 30% of the funding goes to motorized trails, 30% goes to non-motorized trails, and 40% goes to mixed-use trails in the states. The Organizations are intimately aware that a loss of the RTP program funding would directly negatively impact our efforts but the Organizations do not rely exclusively on RTP monies to operate. The same cannot be said of other large groups of recreational users. Without RTP funding the non-motorized portions of the CPW Trails program simply would cease to function as there is no other source of funding available for these efforts.

B. Economic benefits and jobs from the RTP program are more important than ever with the challenges from COVID.

The Organizations are aware there is not the high level of controversy around the RTP program that there has been with the several stimulus bills that have been passed in response to COVID. RTP funds, leveraged with registration monies, provide direct funding which is important to the long-term economic recovery of the country from the COVID. In Colorado this funding hires more than 400 seasonal employees for shovel ready maintenance projects protecting natural resources, through federal, state and local agencies. The Organizations could not envision a more effective manner to provide economic stimulus than this, as these jobs are critically sought after in these times of unprecedented unemployment throughout the Country. Unprecedented unemployment has resulted in many positions receiving dozens of applicants, instead of being difficult to fill. This is a clear indication of the challenges Americans in Colorado are facing in providing basic resources. Failing to hire these 400 people would be in addition to the CPW staff salaries reflected in the cash fund balance and these staff would be the first employees within CPW to have experienced any job loss as part of the COVID response. Without these funds, these 400 plus people will not be hired. Again, these factors weigh in favor of allocating existing funds faster rather than rescinding funding.

These employees and related volunteer support for these programs results in almost 60 dedicated and well-equipped maintenance crews providing recreational access to public lands throughout the year. Last year these crews cut more than 12,000 dead trees off the trail network in the state. While this is an impressive number of trees cut, in many areas this is insufficient to maintain access due to the huge number of dead trees in many areas. More funding is critically needed to maintain recreational opportunities.

The economic contributions that result from this funding are exemplified by the fact that the $1.3 million in combined RTP funding and user registration monies from the snowmobile community allows for a vigorous winter backcountry recreational community in Colorado. In 2017, the Dept of Commerce estimated the economic contribution from this recreational activity to be more than $475 million dollars. The Organizations submit that with the challenges being faced in the post-COVID response, benefits such as this are more important than ever.

Thank you for your consideration. It is absolutely critical that HR 5797 be included in the upcoming transportation reauthorization bill.

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
IRC, TPA & COHVCO Authorized Representative