Archive | News

Bears Ears Monument Planning Assessment Comments

 

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

RE: Bears Ears Monument Planning Assessment

Dear Planning Team:

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

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

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

1. Who we are.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hole in the Rock Trail

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

Motorcycles, ATVs, OHVs in Hole int he Rock Trail

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

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

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

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

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

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

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

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

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

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

2(d)(2). National Preservation Programs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Educational resources simply are not even discussed.

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

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

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

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

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

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

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

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

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

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

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

Other courts have summarized this standard as follows:

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

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

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

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

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

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

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

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

Table ES5 Non WSA Lands

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

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

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

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

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

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

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

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

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

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

The Utah Wilderness Act further states this intent as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6d. Other designations are simply not addressed.

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

7.  Best management practices require flexibility.

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

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

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

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

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

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

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

8. Conclusion.

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

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

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

 

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

Fred Wiley
ORBA, President and CEO

Steve Egbert
United 4 Wheel Drive Association, Chair

Matthew Giltner
One Voice, Chairman

Chad Hixon
TPA, Executive Director

Marcus Trusty
CORE, President

 

 

 

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

[2] See,  16 U.S.C. 460dd

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

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

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

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

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

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

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

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

[11] See, Biden Proclamation at pg. 57328

[12] See, Biden Proclamation at pg. 57329

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

[14] See, Public Law 113-287 §300101

[15] See, Proposal at 5-32.

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

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

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

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

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

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

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

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

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

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

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

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

[28] See, Public Law 98-428 §303

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

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

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

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

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

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

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

Continue Reading

Bears Ears National Monument Comments from Ride with Respect

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


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

20221031 Bears Ears Comments from RwR

Dear BENM RMP Project Manager:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12. Conclusion

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

 

Sincerely,

Clif Koontz
Executive Director

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

 

ADDENDUM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The AMS states:

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

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

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

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

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

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

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

The AMS preliminary Alternative D states:

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

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

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

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

The AMS preliminary Alternative D states:

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Continue Reading

Labyrinth Rims/Gemini Bridges Travel Management Plan Comments

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

Re: Labyrinth Rims/Gemini Bridges Travel Management Plan

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

Dear Planning Team Members:

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

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

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

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

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

2. Introduction

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

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

3. Who We Are

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Future Facilities:

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

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

Focus Area — Motorized Backcountry Touring:

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

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

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

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

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

2.8. Recreation and Travel Management

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

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

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

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

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

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

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

Arches NP 2021

 

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

Arches NP 2011

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

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

 

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

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

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

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

Summary Table A OHV Categores[15]

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

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

The FEIS summarized the scope of these closures as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other courts have summarized this standard as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“A. The Planning Process

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

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

Planning steps

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

▪ Identify social and economic issues

Identify social and economic planning criteria

Step 3—Inventory Data ▪ Identify inventory methods

Collect necessary social and economic data

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

Document assessment methods in an appendix or technical supplement

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

Analyze the social and economic effects of the alternatives

Document impact analysis methods in an appendix or technical supplement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gross Output for Selected Conventional Oudoor Recreation Activties 2016

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

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

 

Table 1 Real Outdoor Recreation Value Added by Activity 2012

 

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

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

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

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

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

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

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

 

An Overlooked Economic Giant Annual Spending

 

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

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

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

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

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

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

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

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

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

 

Table 3 Visitor spending

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Historic Archive Document

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

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

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

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

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

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

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

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

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

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

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

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

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

Moab Daily Flights – YouTube

Moab advertisements

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

Respectfully Submitted,

Chad Hixon
Executive Director
Trails Preservation Alliance

Clif Koontz
Executive Director
Ride with Respect

 

References/Citations

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

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

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

[4] See, Proposal at pg. 20.

[5] See, 2017 SA at pg. 14

[6] See, RMP at pg. 90.

[7] See, RMP at pg. 90

[8] See, RMP at pg. 91

[9] See, RMP at pg. 91.

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

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

[12] Stats Report Viewer (nps.gov)

[13] Stats Report Viewer (nps.gov)

[14] See, Proposal at pg. 20.

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

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

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

[18] 40 CFR 1500.1

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

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

[21] See, 43 CFR 1500.1(b)

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

[23] See, 40 CFR 1502.1

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

[25] See, 42 U.S.C. §4321

[26] See, 40 CFR §1508.7

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

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

[29] See, 40 CFR 1500.1

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

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

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

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

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

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

[36] See,  43 U.S.C. §1712

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

[38] See, Proposal at pg. 127.

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

[40] See, Hughes River Supra note 24

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

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

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

[44] Id at pg. 1.

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

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

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

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

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

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

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

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

[53]  See, Proposal at Pg. 44.

[54] See, Proposal at Pg. 46.

[55] See, 16 USC  1246 (j)

[56] See, 16 USC §1242(a)(3)

[57] See, 16 USC §1241 (5)

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

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

[60] See, 40 C.F.R. § 1502.5

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

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

[63] See, Proposal at Pg. 78 .

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

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

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

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

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

[69] See, 16 USC 1271

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

[71] See, Proposal at pg. 42.

[72] See, 16 USC §1279(b).

 

 

 

List of Exhibits

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

Chaffee County Camping Plan and Travel Management Environmental Assessment Comments

TPA-COHVCO-CORE-logos

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

Chaffee County Camping EA Comments from TPA, COHVCO and CORE

Dear Project Team:

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

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

I. Partnership

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

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

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

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

II. Travel Management

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

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

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

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

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

III. Project Prejudice 

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

IV. Population Data

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

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

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

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

The article goes on to say:

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

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

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

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

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

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

The Washington Examiner Article goes on to say:

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

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

V.  Wildlife Data

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

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

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

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

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

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

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

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

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

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

VI. Erosion/Watershed Concerns

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

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

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

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

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

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

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

VII. Managing Camping with Road Closures

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

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

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

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

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

VIII. NEPA Concerns

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

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

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

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

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

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

IX. Pass Creek

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

X. Misc. Lands

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

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

XI. Shavano

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

Thank you for your consideration,

Marcus Trusty
CORE President/Founder

Chad Hixon
TPA Executive Director

Scott Jones
COHVCO Authorized Representative

 

Continue Reading

EXTENDED DEADLINE! Save access to the Labyrinth Rims and Gemini Bridges roads and trails – Moab, UT

Extensive closures are proposed to world-class trails in the Labyrinth Rims and Gemini Bridges area.
The BLM needs your input to protect them!

– Comments are due Friday, October 7th –

– Comments are due Friday, October 21st –

 


 

Ride with Respect, Trails Preservation Alliance, and Colorado Off Road Enterprise urge you to weigh in so we don’t lose out!

 


What’s going on?

The Bureau of Land Management (BLM) Moab Field Office has released a Draft Environmental Assessment (The Proposal) for its Travel Management Plan (TMP) covering all motorized routes between Moab and Green River, Utah that could close 40% of what is currently open to motorized use. Proposed closures include all of Dead Cow Loop (The Tubes), parts of Enduro Loop, Brian’s Trail (top of White Wash), Gold Bar Rim, Golden Spike, Rusty Nail, Tenmile Canyon, Hey Joe Canyon, Hell Roaring Canyon, Mineral Canyon, Tusher Wash, and the route between Monitor and Merrimac buttes to name a few!

The Labyrinth Rims/Gemini Bridges planning area is surrounded by national parks, wilderness study areas, and the new Labyrinth Canyon Wilderness just across the Green River. Within the planning area, the 2008 TMP inventoried ~1,900 miles of routes and closed ~800 miles of them, leaving ~1,100 miles open today, which the Draft TMP calls Alternative A. Volunteers (including local groups Ride with Respect, Moab Friends For Wheelin’, and Red Rock 4-Wheelers) have spent tens-of-thousands of hours implementing and refining the 2008 TMP in this area. A 2017 settlement agreement requires the BLM to revisit the 2008 TMP in this area, and expressly allows the BLM to add routes, but the agency has chosen not to consider adding even a single mile of route in The Proposal despite that motorized use of the area has roughly doubled since 2008.

 

Dead Cow/Tubes – a route that is proposed to be closed

It is widely agreed that the BLM should extend the comment deadline because some of its maps were inaccurate at the outset of The Proposal, but the following figures are accurate within a few miles:

  • Alternative A would leave open 1,057 miles to all uses and 71 miles to ATVs and/or motorcycles.
  • Alternative B would close 438 miles and place new restrictions on another 13 miles.
  • Alternative C would close 168 miles and place new restrictions on another 50 miles.
  • Alternative D would close 53 miles and place new restrictions on another 30 miles.

It’s worth noting some closures proposed in Alternative D are reasonable, but others have current and future value to leave open despite the appearance of low use. Southern Utah Wilderness Alliance (SUWA), which seeks to vastly expand wilderness designation that prohibits all mechanized travel, proclaims “It is vital that the BLM hear overwhelming public support for Alternative B,” an alternative developed at the request of all Grand County commissioners. Therefore it’s vital that the BLM hear our overwhelming OPPOSITION to Alternative B as it (and even parts of Alternative C) would devastate motorized recreation and offer no significant benefit to non-motorized recreation or natural resources.

Check out this informative video from CORE!

How to Comment Effectively

Check out this new video from Chad of TPA and Marcus of CORE sharing how to make your comments most effective.

 

To comment substantively on The Proposal, include these points in your own words.

Tell the BLM about yourself:

  • Who you are, where you’re from, what activities you enjoy in the Labyrinth Rims/Gemini Bridges planning area, and how much money you spend locally when visiting (dining, recreational equipment, hotels, fuel, etc).
  • Emphasize if you are a multi-use recreationist. Include all the activities you enjoy in the area, and what characteristics you look for in a route.
    Examples: floating Labyrinth Canyon by raft or canoe, riding your dirt bike on Dead Cow, 4WD on Hey Joe, mountain bike on the Magnificent Seven.
  • The variety of benefits that the area’s motorized routes provide to you (exercise, thrill-seeking, skill building, family time, connection with nature, etc.).
  • That you support the comments submitted by local, state, and national groups (RwR, CORE, TPA, etc).

 

Taylor Canyon – a route that is proposed to be closed

 

Then ask the BLM to:

  • Support Alternative A. In 2008 the TMP closed over 40% of inventoried routes plus around 200 miles of non-inventoried routes, thereby balancing motorized recreation with non-motorized recreation and natural resources. This is especially worth noting given the significant amount of non-motorized opportunities that surround this planning area.
  • Recognize that the State of Utah is increasing its support of trail work, education, and law enforcement in the planning area. The new DNR Division of Outdoor Recreation is hiring staff to do more trail work and enforcement patrols specifically in southeast Utah. Further, Utah’s new Off-Road Vehicle Safety Education Act will require (a) all OHV operators to complete an education course, (b) all ATVs to display license plates for easier identification, and (c) vehicle operators who are convicted of going off-trail to repair their damage through community service. With these additional resources, the BLM will be able to effectively implement alternative A and resolve any issues with the status quo.
  • Take an educational approach to reduce recreation conflicts. Separating trail uses is appropriate to some degree, but additional closures should be thoughtfully evaluated. The BLM should promote education and trail etiquette efforts before resorting to hundreds of miles of closures, especially considering the recent surge in users who are new to backcountry trails. In addition, the promotion of tolerance among diverse recreationists will help alleviate user conflicts.
  • Protect wildlife by gaining full compliance with the current TMP. Wildlife enhances all recreational experiences. To effectively improve wildlife habitat, the BLM should focus on the enforcement of existing closures rather than expanding closures and adding to the burden of implementing and enforcing them.
  • Fully value the economic contribution of motorized trail use. The Proposal lacks evidence for its assumption that all types of visitors spend similar amounts of money to recreate in the area. Research demonstrates that most motorized trail users spend far more than other recreationists. For example, rental OHVs average $300 per day plus a tax rate of over 18% in Moab while most non-motorized gear rental is under $100 per day, plus a tax rate of under 9%.
  • Recognize that closing motorized trails would decrease positive impacts to the local economy and increase negative impacts to natural resources. The Proposal lacks a basis for its assertion that only 7,348 visitor days (20 people per day) would be lost annually if Alternative B were chosen. In fact Alternative B and even some routes in Alternative C would result in either (a) far more visitor days lost, (b) far more traffic on the remaining routes which would make them less sustainable, or (c) far more use off of designated routes which would disorganize travel patterns and increase negative impacts.

 

Monitor and Merrimac buttes – a route that is proposed to be closed

 

Finally, make route-specific comments on your favorite trails that are proposed to be closed. You can see all the routes over aerial imagery or topographic base maps by going to the BLM’s ePlanning site, clicking on “Maps,” and going to the section “Interactive Map.” You can see if it would be closed permanently, closed seasonally, or left open year-round in each alternative by going to the section “Static Map.” Determine the route number (e.g. D1944) to state it in your comments, and use it to look at the BLM’s route report (although it’d require downloading all 650MB of route reports).

 


Make Comments

To comment online and get more information on The Proposal:

Make Comments Here!

Email:
If commenting online fails, email the comments with the subject line “Labyrinth/Gemini Bridges Travel Management” to:
blm_ut_mb_comments@blm.gov

Postal mail:
Bureau of Land Management
Attn: Labyrinth/Gemini Bridges Travel Management
82 East Dogwood
Moab, UT 84532

 

Mashed Potatoes  – a route that is proposed to be closed

More Information

 

Deadline Next Friday!

Comments are due on Friday, October 7, 2022  Friday, October 21, 2022 so speak up for motorized opportunities today!

Continue Reading

BLM Big Game Habitat and Migration Corridor Amendment – Comments

TPA COHVCO CORE CSA logos
BLM Colorado State Office
Attn: Big Game RMPA/EIS
2850 Youngfield Street
Lakewood, CO 80215

RE:  BIG GAME HABITAT AND MIGRATION CORRIDOR AMENDMENT

Dear Sirs:

Please accept this correspondence as the input of the Organizations with regard to possible amendments of existing RMP for Big Game Habitat and Migration Corridor Amendment (“The Proposal”).   Prior to addressing the specific concerns, the Organizations have regarding the Proposal, we believe a brief summary of each Organization is needed.  The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization of approximately 250,000 registered OHV users in Colorado seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is a largely volunteer organization whose intention is to be a viable partner, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding.  The TPA acts as an advocate of the sport and takes the necessary action to ensure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite the more than 30,000 winter motorized recreationists across the state to enjoy their passion.  CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport.  CORE is an entirely volunteer nonprofit motorized action group out of Buena Vista Colorado.  Our mission is to keep trails open for all users to enjoy.  For purposes of these comments, TPA, CSA, CORE and COHVCO will be referred to as “the Organizations”.

The Organizations participated in the public meetings that were provided by the BLM on this issue and were surprised to hear a FAR more broad scope of the project than is currently provided for. Our experiences with the Sage Grouse management efforts have allowed us to understand that anytime route density standards are addressed, such as in the Proposal, there will be recreational impacts due to route closures. This is a situation where one size fits all management is totally inappropriate and significant amounts of work must be performed on existing data to understand the myriad of site-specific issues that species are facing in the state and what previous management challenges have been faced in these areas. While the state of Colorado may have requested this review, it does not absolve the BLM of basing management decisions on best available science.

The Organizations are very concerned that a significant amount of foundational analysis for the effort does not appear to have occurred and if it has occurred it has not been discussed. The Organizations submit this spans many facets of the Proposal, which ranges from questions like has there been a decline in wildlife populations in Colorado?  Is there a single factor causing the perceived decline in wildlife populations? If so, how was this determined.  What was the time frame for this conclusion and analysis?  How was the relationship between an asserted decline in populations been attributed to a lack of habitat? These are foundational questions that must be addressed before any range of alternatives is even formulated, as our minimal research indicates there are a huge number of factors impacting wildlife populations, ranging from the window of time used to analyze declines or increases, poor data being available for analysis and other management efforts driving down populations based on best available science.  Once these other factors are addressed the Organizations vigorously assert the relationship between populations and habitat declines must be established.  This simply has not been done to date. If the BLM is going to move forward with any analysis of options as required by NEPA, these are foundational questions that must be addressed.

1(a) The 50-year history of the BLM managing motorized recreation to protect wildlife resources.

The Organizations are concerned that the current Proposal has a very wide scope of analysis in terms of challenges and issues and the broad scope of the documentation was greatly expanded in the public meetings that we participated in. This is very concerning for us, especially when there is insufficient analysis of possible impacts to existing resources from the management process currently under analysis. Prior to addressing the unusual scope of analysis for the Proposal, the Organizations would like the opportunity to provide input on the decades of effort that have gone into minimizing possible impacts from motorized recreation on wildlife.   The motorized recreational community has been directly managed by the BLM for more than 50 years for the minimization of impacts to a wide range of other activities including wildlife.

The management of motorized recreation on federal public lands started in 1972 with the issuance of Executive Order 11644 by President Richard Nixon, which clearly states as follows:

“Those regulations shall direct that the designation of such areas and trails will be based upon the protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization of conflicts among the various uses of those lands. The regulations shall further require that the designation of such areas and trails shall be in accordance with the following–

(1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands.

(2) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats.

(3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.

(4) Areas and trails shall not be located in officially designated Wilderness Areas or Primitive Areas. Areas and trails shall be located in areas of the National Park system, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.”[1]

This management has taken many forms over the subsequent decades and in many places 3 or more travel management plans have been undertaken in order to balance motorized recreation with possible impacts to resources and wildlife.  Issues such as route density and other issues that might be impacting wildlife, such as the need for seasonal closures and wildlife corridors, have been the basis of numerous site-specific concerns in Travel plan development for almost 50 years.

The Organizations have also had an MOU signed with the State BLM office for decades to ensure that our efforts are aligned as closely as possible on a wide range of issues. A copy of the most recent agreement on the accomplishments of this effort are attached as Exhibit “1”.   No other recreational activity is involved with these types of issues than the motorized community and we would like to avoid possible impacts to these efforts that could result from unintended impacts of efforts.

1b.  Resources the motorized community provides to benefit wildlife and recreation.

As we noted above, the motorized community has a unique relationship with the BLM beyond the additional management requirements of EO 11644.  The motorized community as also created a voluntary registration program for the OHV community that returns almost all funding back to land managers for the maintenance of opportunities.[2]  The management of motorized usage is significantly $8 million per year provides more than 60 dedicated maintenance crews for the benefit of summer and winter recreation and resource protection. This program has been administered with CPW for more that 30 years, and has now exceeded $100 million in on the ground funding to land managers.

Through this program, each BLM Field Office have dedicated maintenance crews for each office that are able to target wildlife management actions, such as opening and closing gates, education of users and other on the ground management needs that protect wildlife values and resources and improve recreational access to the area as well. These maintenance crew grants are currently funded at $85,000 per year per planning area and several BLM planning areas are working with multiple crews in an area.  To supplement these efforts, each field office also is able to apply for additional resources on an as needed basis including targeted law enforcement resources and extensive Youth Corp resources to help with larger challenges on the FO such as wildfire and flooding issues that can be highly destructive to wildlife resources as well.[3]   These structured OHV crews in the Field Offices also have access to the Statewide Heavy maintenance crew based out of Grand Lake to further improve responses to a wide range of issues on the ground. The OHV program has also provided more than 2 dozen skid steer loaders, mini-excavators and trail dozers to further improve maintenance capability on public lands.  All these resources protect wildlife and wildlife habitat while improving recreational opportunities.

As an example of the scale of resources available as a result of the OHV grant program, CPW estimates that wildlife signage should cost between $2,000 and $3,000 per year to maintain.[4] The OHV program provided $130,000 in grant funding for signage last year that is divided across each management unit in the state.[5]

This program is a resource that no other nonconsumptive recreation interest provides and these resources simply alter the playing field when discussing resource protection and wildlife management issues.  Many groups are willing to address management standards but are unable to provide any resources to carry out these requirements and it is possible that those issues may fall in management priorities over time and as a result decline in effectiveness.  With directed consistent funding this does not happen with motorized recreational interests.

1c.  How will BLM multiple use mandate and existing designations be protected in the Proposal?

The Organizations are very concerned about possible impacts to the decisions that have already been made under the multiple use mandates of the BLM.  Often these area designations are striking a balance of uses across the FO or planning area. The Proposal would be looking at these designations in isolation, as the scope of the Proposal is only addressing wildlife corridors, which would only impact a small portion of the planning area. The Organizations would ask for clarification on how multiple uses of the entire field office is maintained if there is a change in a designation in the RMP already in place.  For example, if there was a dedicated or protected use in the RMP that must now be altered or limited where would this use be moved to on the FO? How was this decision made outside the wildlife habitats simply must be explained.  This type of decision making is critical to transparency and maintaining the multiple use mandate that was previously balanced in the RMP planning process.

2a.  Wildlife populations in the State are stable, generally at or above objectives and in many cases improving already.

The Organizations vigorously assert that credible peer reviewed published information must be relied on for the analysis of conclusions that are foundational to the development of the Proposal. It is becoming far too common that we are seeing assertions that wildlife populations are in massive decline in Colorado due to a lack of habitat.  We are simply unsure what this information is based upon as it appears to be horribly inaccurate. Given that the long-term population treads for species in Colorado as improving since the early 1980s, we must also assume that habitat is in reasonably good shape given the trend has persisted for more than 40 years.

It has become far too common at the state level to hear unsupported allegations that wildlife populations have plummeted.  It is interesting and highly frustrating to us CPW research that has been published concludes that numerous species are generally populations are at or above objectives and are well above total populations of the species in 1980. In some localized areas there have been declines in wildlife populations in limited geographic areas due to management actions by CPW for that species.  Most commonly this has resulted in the increased numbers of hunting tags being sold in these areas to mitigate overpopulations of wildlife in the areas. Sometimes these efforts have sought to manage impacts to a wide range of other resources or species to reductions in populations to address issues like chronic wasting disease impacts.

In many areas where these types of reductions have occurred, many other species have significantly increased at the same time.  This situation would lead to the conclusion that declines are not habitat based but rather are based on a social desire to have multiple species on the landscape rather than a large number of a single species. It is highly frustrating for the recreational community when planning in based on inaccurate or incomplete information about an issue or fails to represent social considerations such as these. Colorado is in the midst of yet another reallocation of wildlife on the landscape after Proposition 114 was passed that mandated the reintroduction of wolves in Colorado. The Organizations would believe it to be naive to assume this will not alter the current populations of species on the Colorado landscape.  Management actions are scientifically based and opposition to previous management decisions should not be driving future management decisions, especially when the interests driving this discussion have not participated in these efforts previously.   No matter how much habitat is provided, there is always a limit to the carrying capacity and without management it can be exceeded. Wanting a larger number of species on the landscape will reduce the number of species that can occur on the landscape, simply due to natural factors such as interspecies competition.

CPW issued the 2020 Status Report on Big Game Winter Range and Migration Corridors (Hereinafter referred to as the “Winter Range Report”) in response to many of the same guidance documents, such as Secretarial Order 3362 and others, that are now asserted to be driving the current proposal. A complete copy of this report is attached as Exhibit “2” to these comments.  This report made many findings that are highly relevant to these efforts by BLM as there is significant conflict between the positions taken in this Proposal and those published by CPW in 2020.  The elk population was summarized as follows:

“The statewide 2018 post-hunt population range is 233,000-282,000. The 2018 post hunt estimate was 287,000, up slightly from 282,000 in 2017 (Figure 5). CPW utilizes season structure and hunter harvest, specifically antlerless harvest, to maintain or achieve population herd objectives. CPW has intentionally reduced elk populations to achieve population objectives. Reductions in antlerless licenses are anticipated as elk populations reach objectives or as population objectives increase.

Hunters and outfitters have increasingly expressed concerns that elk populations are becoming too low in some herds, despite the fact that 22 of 42 (52%) of the elk herds are above their current population objective ranges”

While we do not contest that hunters may like to increase their odds of a successful hunt, this is also not a shortage of habitat for elk.  This is a social desire expressed by almost every user group.  The Organizations would note that almost every recreational group would like to see expanded opportunity to achieve their recreational goals and as a result we must question the value of the closing assertion in the report.

Deer have a more variable trend in populations based on a larger number of factors impacting these species such as winter kill, drought and wasting disease, but generally these populations appear to be reasonably steady, which the Winter Range Report outlines as follows:

Winter Range Report graph

The winter range report specifically attributed this population situation to a wide range of factors as follows:

“The product of this public process was the 2014 West Slope Mule Deer Strategy (WSMDS). The WSMDS identifies seven management priorities to address mule deer declines on the West Slope of Colorado.

    • Landscape-scale habitat management to improve habitat quality
    • Predator management where predation may be limiting deer survival
    • Protection of habitat and mitigation of development impacts
    • Reducing the impacts of highways on mule deer survival, movements and migration
    • Reducing the impacts of human recreation on mule deer
    • Regulation of doe harvest and providing youth hunting opportunity
    • Maintaining a strong big game population and disease monitoring program and conducting applied research to improve management of deer populations”

Given this clear and concise statement from CPW as to their landscape level threats to deer, the Organizations would believe any assertion that habitat alone is causing the decline in the population would lack factual and legal defensibility.

A strong steady increase in the state population of pronghorn is also identified.  Similar stability in the long-term population of pronghorn has also been identified by CPW as follows:

population of pronghorn

Given that the total number of pronghorns in the State is about 2,000 more animals than were present in 1980 or a 30% increase in pronghorn populations since 1980, we would argue this is a huge success of management efforts by everyone, and this should be celebrated as huge win for the species rather than a need for more restrictions and analysis of habitat.

CPW conclusions for moose populations in the state are simply amazing as there are 7 times more moose in the state when compared to 1991. This is the result of CPW efforts around the large-scale reintroduction of this species in the mid-2000s in several locations in the state.  This trend is represented in the CPW Winter Range report as follows:

moose populations

Given that the total number of moose in the State us 7 times more animals than were present in 1991, we would argue this is a huge success of management efforts by everyone, and this should be celebrated as huge win for the species rather than a need for more restrictions and analysis of habitat.

CPW has also been very active in reintroducing big horn sheep.  The population reintroductions undertaken are outlined in the CPW Big Horn Sheep plan as follows:

“One reason for the apparent increase in Colorado’s bighorn populations is a longstanding effort to trap and translocate wild sheep to establish new populations or supplement existing populations. From 1945–2007, there were 47 releases of bighorn sheep in Colorado resulting in the translocation of 2,424 animals (excluding bighorns moved to research facilities). The majority of these transplants occurred during the 1980s. In 2007, translocated herds accounted for 54% of the total herds in Colorado and 48% of the total statewide bighorn population. Most transplant herds (78%) had less than 100 sheep in 2007 and relatively few of these herds have shown the sustained growth needed for long-term viability. Extant herds that have been supplemented with translocated sheep accounted for 24% of the total herds and 30% of the total statewide bighorn population in 2007.”[6]

As a result of these reintroductions, similar trends are found in sheep populations as Sheep are 6 times the population in 1985  which is represented in the Winter Range Report as follows:

sheep populations

Given that the total number of moose in the State is 6 times more animals than were present in 1991, we would argue this is a huge success of management efforts by everyone, and this should be celebrated as huge win for the species rather than a need for more restrictions and analysis of habitat.

While not mentioned in the Winter Range Report, the Organizations are also aware that CPW has undertaken a highly successful reintroduction of Canadian Lynx in the state, which is now above the target population for that species as well.  CPW has also undertaken the reintroduction of dozens of species of fish, black footed ferrets, boral toads and simply too many other species to even list.  We don’t contest that some species may be declining in limited areas but given that CPW has published and peer reviewed information that the deer and elk populations in the state are reasonably close to goals for the species we must question the basis for the assertion that these populations are collapsing or declining.  Best available science indicates exactly the opposite is the case.

We must also assume that habitat is sufficient to support the species, and this assumption is compounded by the huge number of other species that have been successfully reintroduced into the Colorado ecosystem over the last 50 years.  A huge number of these species’ reintroductions have been the subject of NEPA analysis, if there are assertions that NEPA analysis of some projects that might impact wildlife populations must be reviewed then the Organizations assert that all NEPA analysis must be reviewed, not just a select few.   If The Organizations must also vigorously assert that Colorado has a demonstrated track record of wanting more diversity of species on the landscape rather than larger number of limited species. In the face of this type of influx of so many species on the landscape, and assertion that habitat is problematic for the future of wildlife in the state is going to be difficult.

2(a)(2).  How are low quality data and management issues in herd management addressed before management changes are found to be necessary in the Proposal?

The Organizations do not contest that deer and elk populations may have appeared to decline at the state level but the mere perceived decline in two populations is not a basis for management decision making before data and local issues are specifically addressed in the planning process. Basic data analysis is critical to ensuring that an accurate representation of population trends is obtained and not influenced by local impacts or issues that are isolated in time. This concern is compounded by the exponential growth of so many other species over the same timeframe. While the Organizations are aware that the current effort has been undertaken at the request of the State of Colorado, this does not absolve BLM from ensuring that basic scientific processes are used to address the management situation. This type of management analysis must be undertaken prior to any management changes being undertaken on any portion of BLM managed lands. It is our position that this type of decision making is highly social in nature and represents a reasoned social decision at the state level that more diversity of species is desired by the public than large numbers of a single species.  This desire of Colorado residents to have more diversity of species on the landscape could not be more perfectly reflected than by the recent passage of Proposition 114 which mandated the reintroduction of gray wolves in Colorado.  Colorado has also reintroduced dozens of other species onto the landscape with generally huge levels of success. These are factors that also must be included in analysis if there are restrictions for usages of habitat being explored. Even without the desired intent of the state of Colorado to have more species diversity, the management decisions must address the myriad of site-specific issues and challenges that have been addressed on these areas and understanding this management history is critical as sometimes these trends are the result of management actions.

The following examples are raised as an example of the more localized issues that must be addressed in any landscape effort and they were identified after only a few minutes of research. This list is by no means complete or exhaustive, but merely represents the type of problems frequently encountered that can heavily impact any attempt to address issues like this at the landscape level.  Other locations have been plagued by a myriad of other issues, such as poor historical count data for a species. These are issues that can only be addressed at the local level and are simply poorly suited to landscape level management given the huge number of issues that are faced.  An example of a large decline in population that was completely unrelated to BLM management or habitat would be provided by the E25 Unit.  The E25 elk unit had decades of unchecked elk population increase that CPW determined had to be managed around 2000.  The basis and analysis for this decision making is laid out in multiple herd management plans from CPW.  The 2017 CPW herd plan for unit E25 has shown this graphically as follows:

2017 CPW herd plan

This management action in this area alone accounts for more than 5,000 less elk in the state and can almost entirely account for the decline in population in state population estimates. Without context this trend would be alarming, but context adds a huge amount of understanding to the discussion. When context is provided for the decline in population, the Organizations submit this area is a huge management WIN that must be celebrated rather than further restrictions.  This is an area that had a minimal population of elk, which was managed and exploded.  As a result of the explosion of population managers miscalculated the necessary management to correct the explosion. This is a good problem to have rather than a calamity to be managed.  The 1999 E25 herd plan provides this context as follows:

“All stakeholders agree the elk population in the DAU has been relatively stable and significant reductions have not occurred over the past 10 years. New population models indicate that the population has continued to increase in recent years. Public land management personnel are concerned about the health of range resources. Most agree that some reduction is necessary, but there is some disagreement on how much reduction should occur.  This disagreement is mostly focused around the current population estimate, which some stakeholders believe is too high.” [7]

The management history in the area is further addressed in the 1999 herd plan as follows:

“Number of limited antler-less licenses has been sharply increased over the past several years, but harvest rates haven’t been sufficient to start decreasing the population.” [8]

These types of management decisions are only addressed briefly in the 2017 herd plan but are hugely related to the decline of the elk populations in the area. [9] The 1999 CPW E25 report further outlines additional history in the management area as follows:

“During spring and summer 1998, the DOW lost two court cases. The group opposing the over-the-counter either-sex elk licenses in GMUs 54, 55 and 551 won their case. The DOW asked the Wildlife Commission to approve antler-less licenses for the fall hunt. The group opposed to the limitations in GMUs 66 and 67 won their case and the two units were once again open to unlimited, over-the-counter bull licenses.” [10]

The need for a complete understanding of local context and factors surrounding issues like this is critical to avoiding conclusions that simply make no sense. As an example, while the E25 unit elk population was being hunted down as a result of a significant increase in license sales implemented in the early 2000’s, the BLM was also closing more than 46% of roads and trails in the area through the Gunnison Basin Travel Management Plan. [11] While there was an additional decline in this population around 2012 the comical lack of relationship between the two efforts could not be more stark, as clearly route density declined as did herd populations.  This type of situation presents an interesting question.  Mainly how was the relationship of route density and wildlife populations established as this unit appears to identify the exact opposite situation. In situations such as this a lack of context can lead to comically incorrect management assumptions as in Unit E25 the assertion could be made that closing trails caused a population decline in elk. While we know this is not the case, these types of horribly incorrect assertions can be made if local information and issues are not addressed. This type of basic analysis must be undertaken to ensure management is actually addressing the challenges actually faced in the area.

These types of exceptionally localized problems exist on a myriad of other units that clearly impact population trends. This is exemplified by the E13 1999 plan specifically outlines the exceptionally poor nature of their historical data as follows:

“The current objectives for this DAU were set in 1990, and it now appears that the population size was underestimated by at least 30% at that time.” [12]

This means that population estimates were off by more than 1,500 elk on this unit alone and this type of error could significantly impact any statewide population goals when statewide populations are only 2,000 animals below state level goals. This situation is not even mentioned in the more recent E13 management plan but could clearly create the appearance that populations have significantly changed in the area.  These are the type of changes that can NEVER be fixed with land management decisions but rather can only be fixed by getting accurate data. These are the types of data issues are critical to the analysis that must occur in this effort prior to any management alternatives even being undertaken.

2(a)(3).  The comical conflict of positions of several Organizations on the wildlife population sizes must be addressed.

The Organizations believe the unprecedented nature of this and several other efforts in Colorado has forced some wildlife advocacy organizations into some enormously conflicting positions on issues.  Some of these conflicts could not be more direct in nature on materially factual issues, and these conflicts are occurring within days of each position being taken. The Organizations are concerned that this situation creates the appearance of groups approaching this effort in less than good faith. This gives us pause and concern and as a result vigorously asking for extensive analysis for all recreational access given the lack of good faith that has been displayed by groups to this point.  We have no expectation that good faith efforts will suddenly return to these discussions at some point in the future, but these Organizations will simply continue to display bad faith in the process moving forward and we simply cannot envision where is process may be directed as a result.

An example of the conflicting positions on factually identical questions is exemplified by the WildEarth Guardians assertion that the State of Colorado has too many elk and deer and the reintroduction will return balance in populations to the State as a part of their citizen reintroduction proposal submitted to the CPW Commission in July of 2022.[13]  This is astonishing inconsistent with the general position of WildEarth Guardians, exemplified by the fact WildEarth Guardians is suing the Rio Grande NF asserting the RMP revision did not adequately protect declining populations from possible recreational impacts as filed in November of 2021.[14]   In almost every other effort than the wolf reintroduction we have consistently been told that ungulate populations are on the edge of the cliff of catastrophic decline. These are positions that simply cannot be reconciled and give us concerns about the possibility of unintended consequences of management.

We believe that the current litigation ongoing on the Rio Grande over species and populations is a concrete example of why we are asking for strict review of any data or trend data.  The Organizations have been forced to intervene in the litigation of the Rio Grande in defense of claims with the US Forest Service, in Order to provide support, knowledge and resources in the litigation. While we will continue to fight for access, we would also like to think that at some point this type of conflict might come to an end.  While the above example is provided in isolation, we are sure other concerns will be taking unusual positions compared to the historical positions and management to be undertaken. As a result of what could clearly be a lack of good faith by certain interests in the process on basic factual positions, the Organizations would again ask that scrutiny be provided as broadly in scope as possible to protect all recreational access in the efforts subsequent to this. We have no expectation that good faith efforts will return to the wildlife management discussion in the State at any point in the foreseeable future.

2(b)(1) Are BLM efforts the best method to address general wildlife populations?

As we have noted throughout these comments, the State of Colorado has demonstrated a long history of wanting greater species diversity in the state rather than larger populations of a single species. We are also aware that the most direct population reduction effort for species in hunting and in many areas, there have been planned scientifically based reductions in wildlife through significant increases in hunting licenses.  Given that the effort has the goal of increasing wildlife habitat and populations, we must question how this is achieved.  Improving habitat will not increase populations but rather without coordination will only increase the sales of hunting licenses and result in a population that remains at objectives.

This type of hugely conflicted situation that can result from socially based decision-making gives rise to a unique and problematic foundational concern, which the Organizations believe also must be corrected in the NEPA analysis that is being proposed. This situation is basically summarized as every user group on the landscape believing that they have minimal impacts and blaming other users instead of accepting responsibility for their actions. Researchers have summarized this situation as follows:

“Approximately 50% of recreationists felt that recreation was not having a negative effect on wildlife. In general, survey respondents perceived that it was acceptable to approach wildlife more closely than our empirical data indicated wildlife would allow. Recreationists also tended to blame other user groups for stress to wildlife rather than holding themselves responsible.”[15]

While the above process and analysis is addressing recreational activity, the Organizations simply cannot imagine how this type of issue would not be impacting efforts at the geographic scale that is being undertaken in the Proposal.  BLM must attempt to correct for these types of issues in their planning efforts as well. The Organizations have to question how the current proposal has been identified as a management tool that can address the desire for larger wildlife populations.  There are many other activities and tools that can drive wildlife populations upward far more quickly than restricting access to public lands.

2(b)(2) Hugely effective management efforts can occur without BLM involvement but result in massive increases in wildlife populations.

The Organizations are aware that wildlife management has taken new and exciting turns in Colorado in the last several years, such as the addition of wildlife overpasses on several interstates and state highways. These overpasses have resulted in huge increases in wildlife populations in areas that have had them in place long enough to document benefits. Once such benefit was documented by the Western Governors Association in conjunction with a wildlife overpass on US 89 outside Kanab Utah.  This analysis immediately documented a huge benefit to a single species as follows:

“It is estimated that a minimum of 102 accidents will be prevented each year through this collaborative effort. Utah State University will study this project over the next five years to provide feedback to the partners on the effectiveness of their efforts and to provide information on how best to design solutions to similar problem areas for wildlife and motorists.”[16]

This type of benefit was not calculated for other species but we have to believe significant benefits were achieved for other species as well. Saving hundreds of deer per year is a huge benefit that simply is not even calculated on any units that have newly built wildlife overpasses in Colorado.  The Organizations must question how these types of projects and benefits would be addressed in a project similar to the Proposal as BLM may not even be involved in these efforts. While BLM may not even be involved in the local effort, these local efforts could hugely impact species populations at the local and state level.

2(c) Secretarial Order 3362 has been addressed for recreational activity in Colorado.

The Organizations would note that Secretarial Order 3362, which does address wildlife and habitat is also asserted to be the basis of the current Proposal also recognizes and excludes from its application management goals that have already been addressed in previous planning efforts from further review. Interestingly, this would appear to preclude the inclusion of issue like possible changes in management conditions in the area and would force change in condition type concerns to be directed to the original planning effort rather than addressed in the current effort. These designations in place for recreational improvement and protections, such as SRMA and ERMA planning designations have been highly site specific in development and were placed to avoid high quality habitat areas and avoid seasonal challenges to wildlife from recreation. Since these designations have already been developed with these goals in mind, these designations are outside the scope of the Secretarial Order and must be protected from change without further detailed analysis. Expanding the scope of the current Proposal to address motorized recreational access would be problematic.

Secretarial Order 3362 specifies this type of an exclusion as follows:

“(2) Within 60 days, if this focus is not already included in respective land management plans, evaluate how land under each bureau’s management responsibility can contribute to State or other efforts to improve the quality and condition of priority big-game winter and migration corridor habitat.”[17]

Protecting wildlife populations and habitat has been a cornerstone of providing motorized recreational opportunities, has clearly been addressed in every RMP we are familiar with in the state.  CPW has provided volumes of input into the development of these plans. Given the clear exclusion of previous management efforts to address the question of route density and site-specific issues throughout the state, the Organizations vigorously assert that existing designations of routes and trails is outside the scope of Secretarial Order 3362 and must be protected and preserved if this effort moves forward.

2(d) Habitat must be defined and consistently applied across each species being addressed in the Proposal.

The Organizations are concerned that the current purpose and need is not particularly well defined, and this type of basic definition will be critical to the success or failure of the project. Throughout the Proposal terms like “important habitat” or “high priority” habitat are used to outline the scope of the effort but these terms are never defined or outlined. As a result, the Organizations must ask questions such as:  Important habitat as defined by who?  What factors were used to identify the characteristics of that area make the habitat important must be addressed?  How were areas found to have these characteristics and other areas not have these characteristics?  How was importance of habitat balanced or addressed across the multiple species? How were local issues such as those previously raised in these comments corrected for in the determinations of the area’s importance for planning?

These are basic questions that simply must be addressed and this concern is heightened when the purpose and need for the project is identified.  Purpose and need of project are identified as follows:

… the preliminary purpose of evaluating alternative management approaches for the BLM planning decisions to maintain, conserve, and protect big game corridors and other important big game habitat areas on BLM-managed public lands and minerals in Colorado. This action is needed to ensure that the BLM considers current big game population and habitat data, including maps of high priority habitat, and to evaluate management consistency with plans or policies and programs of other Federal agencies, State and local governments, and Tribes, to the extent consistent with Federal laws, regulations, policies and programs applicable to public lands.

The inability of the species habitat to be accurately described and classified gives rise to a host of other problems in subsequent species management efforts, such as habitat identification or avoiding unintended management actions taken in the generalized habitat information already provided.  Without a good description how do we not have problems with the 2018 US Supreme Court’s unanimous Weyerhaeuser. While the USFWS recently withdrew the proposed definition of habitat required by Weyerhaeuser, this does not mitigate the legal requirements of the Weyerhaeuser decision.

The Organizations are very concerned that the current documentation is highly theoretical in nature and far from a settled scientific model moving forward.  The use of modeling in the ESA has been an issue that has been the basis of dozens of treatises and texts and is far from a resolved issue.[18] These reviews have consistently identified the need for the scientific community to provide legally sufficient basis for species management. This standard has been summarized as follows:

“Given the importance of maintaining biodiversity for both ethical and practical reasons- foe example to sustain environmental goods and services critical to human welfare (Hooper et al 2005)- it is imperative that the scientific community provide land managers with the knowledge and tools needed to meet their conservation mandate.”[19]

Other researchers have stated this standard in the management as listing of identifiable species, such as the Mexican gray wolf as follows:

“Policy-related uncertainty originated from contrasts in thresholds for acceptable risk and disagreement as to how to define endangered species recovery. Rather than turning to PVA to produce politically acceptable definitions of recovery that appear science-based, agencies should clarify the nexus between science and policy elements in their decision processes. The limitations we identify in endangered-species policy and how PVAs are conducted as part of recovery planning must be addressed if PVAs are to fulfill their potential to increase the odds of successful conservation outcomes.”[20]

These treatises also provide highly detailed discussions on the management of uncertainly in the assumptions and data in the species/habitat modeling process. Listing a species based on a lack of information on the species is a failure of basic scientific processes around the modeling of any habitat areas for a species.  In habitat discussions, 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 vigorously assert that the problems with modeling the species that cannot be described or scientifically defined accurately are compounded when applications of habitat designation standards are undertaken.  The challenge of modeling habitat is immense and only expanded when the species cannot be defined. Recent USFWS efforts have highlighted the habitat designation challenges for identifiable species 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.”

The concern of the scientific community around management of poorly defined habitat is not minor.  The mandate of applying best available science (“BAS”) is one of the cornerstones of the entire federal planning process and is specifically applicable to the designation of both basic habitat and critical habitat.

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. If the model does not accurately forecast or provide consistent results, the model is fixed and management action is not taken. 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. 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” [21]

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.” [22]

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][23]

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.” [24]

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.”[25]

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 planning process but needs to be in the Proposal, as this is targeting habitat.

Even when addressing wildlife habitat, best available science clearly identifies the need to ensure modeling of habitat areas is actually reflecting the species and 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 scientifically defensible level, the modeling effort is stopped at some point. This simply is not how modeling of habitat has occurred in our experiences under planning 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. The Proposal would be a good example of the relationship of these types of challenges in the management of a possible species.

The Organizations believe a comparison to the facts around the listing of the Gopher frog which was struck down in the recent Weyerhaeuser Supreme Court decision and the current proposal will clarify our concerns about the poor resolution of the management of uncertainty. The gopher frog listing provided the following criteria for habitat which 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. [26]  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.

3.  User conflict can easily be created with overly broad route closures.

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

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

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

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

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

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

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

4.   CPW’s Trails and wildlife guide must be standard for analysis of any impacts of Proposal on recreational areas or routes as this has been signed by the BLM.

The Organizations have partnered with CPW, USFS and BLM for the development and updating of the 2021 CPW Guide entitled “Colorado’s Guide to Planning Trails with Wildlife in Mind.”   The Organizations along with more than a dozen state and local agencies, including the BLM and Forest Service spent more than a year of dedicated meetings to develop this Guide.  Given that BLM signed this Guide and was seminal in the development of the document, we believe this document is highly relevant to the analysis of possible impacts of route density standards.  A copy of this report is attached as Exhibit “5” to these comments.  We are deeply disappointed that this document is currently not mentioned in the Proposal despite the numerous mentions of route densities as objectives of planning.

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

The Organizations would note that the America the Beautiful and 30×30 efforts have been referenced in the scoping brochure, several times in Presentations in public meetings and was the topic of extensive discussion in various meetings around the initiative.  We are very concerned that these were exceptionally generalized references and that these efforts are often poorly summarized in the discussions.  The Organizations submit that how the Proposal relates to these efforts remains horribly unclear as no substantive National level guidance has been provided on the EO or related efforts, making any implementation efforts difficult to understand and achieve as the goals of these efforts remain unclear.  These types of goals and clarity are highly relevant to states like Colorado who have actively moved federal public lands into various levels of either Congressional or administrative designations.  The Organizations have been active participants in numerous efforts to Congressionally protect areas and would assert that generalized goals such as 30×30 have been achieved in Colorado, making any asserted basis for the effort lacking factual basis.

The recent issuance of Executive Order # 14008 by President Biden on January 27, 2021 would be an example of a decision that is often only partially summarized in most materials we are seeing submitted in comment processes for federal land planning, as the “30 by 30” concept is memorialized in this Order. It is our position that the 30 by 30 concept was long ago satisfied on the planning area given the large expansions either Congressionally designated Wilderness, or National monuments in the area over the last several decades. In direct contrast to the summaries of EO 14008 we are seeing, this Order had provisions protecting lands generally but also had specific goals of improving access to public lands. This have been overlooked in most summaries but the Organizations submit these requirements are critical to bringing balance to public lands. Before addressing the 5 times recreational improvement is specified in EO 14008, the Organizations must also recognize that wildlife and habitat concerns are only indirectly mentioned in the EO.  While we do not contest that wildlife and habitat are the target of Secretarial Order 3362, these goals are only indirectly addressed in the EO.

§214 of EO 14008 clearly mandates improved recreational access to public lands through management as follows:

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

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

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

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

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

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

The Organizations are aware that the America the Beautiful effort has provided some generalized guidance on implementing EO 14008, and unfortunately these goals are not particularly clear either. While there is a lot of confusion around the goals, the applicability of these goals to federal lands is clearly reflected, in Principle #5 of the America the Beautiful effort, which is as follows:

“Principle 6: Honor Private Property Rights and Support the Voluntary Stewardship Efforts of Private Landowners and Fishers”[27]

Our first question would be why Federal and State ownership would not be sufficient to protect these lands which encompass almost 60% of the State of Colorado. But even from this standard is found insufficient Congressionally protected lands in Colorado are significant.  After a cursory review of the federal public lands status in Colorado about 55% of the USFS managed lands are managed as either Congressionally designated Wilderness (15%) or Roadless Areas (35%), which are managed with the specifically identified goals of protecting resources.

For the Department of Interior lands, National Wildlife Refuges encompass around 175,000 acres, National Parks managed areas encompass another 739,000 acres, Congress has designated 2 National Recreation Areas covering more that 78,000 acres and 3 National Conservation Areas covering a little less than 400,000 acres, BLM manages 4 Wilderness Areas covering 248,751 acres and an additional 548,023 acres as Congressionally designated Wilderness Study areas.  These lands cover another 14% of the federal lands mass.  When these areas are consolidated Colorado has about 35% of the federal land mass under Congressional designations currently. The levels of protections only increase as lands managed by the Bureau of Reclamation and Army Corp of Engineers are not included in this analysis.

Percentages of protection are only further increased by the large number of Colorado State Parks and Wildlife areas that are in the State.  Numerous local governments also have extensive holdings that would further increase the percentage of lands that are protected.  Given the fact that Colorado has already exceeded the 30×30 goal, we must question how the goal can be furthered as asserted in scoping and related documents.  The Organizations are unsure how compliance with EO has been determined as the EO is hugely conflicting and ambiguous on many issues. Without further national guidance on implementation of the 30×30 effort, the Organizations submit that any assertion of further compliance is at best horribly premature.

8. Economic impacts from unintended impacts of management must be addressed.

The Organizations are very concerned around the possible negative economic impacts that could result from the Proposal, not only from recreational related impacts but also the possible impacts to other activities as well.  Too many of our small communities’ struggle to provide even basic services to their residents and tourists visiting the areas. Without a well-rounded economic engine for the community, the community will struggle and possibly fail and this will degrade the recreational opportunities and support for them from the community and this is a concern for the Organizations.  The Organizations are very concerned that there have been numerous assertions that completely overestimate the economic contribution of the reintroduction by merely asserting that all recreation is occurring in the State as a result of the reintroduction.  That entirely lacks factual basis.

CPW own conclusions on the economic contributions of all forms of outdoor recreation in the state of Colorado, clearly identified as a consideration to be mitigated in any NEPA analysis are as follows:

“Focusing on the state-level results below, the total economic output associated with outdoor recreation amounts to $62.5 billion dollars, contributing $35.0 billion dollars to the Gross Domestic Product of the state. This economic activity supports over 511,000 jobs in the state, which represents 18.7% of the entire labor force in Colorado and produces $21.4 billion dollars in salaries and wages. In addition, this output contributes $9.4 billion dollars in local, state and federal tax revenue.” [28]

The Organizations submit that more than $62.5 Billion Dollars of economic contribution that results in 18.7% of the entire labor force is an economic concern to warrant specific recognition of recreation both now and in the future.  While many of the planning areas are outside the economic contributions of the Denver Broncos and other recreational activities, the economic contributions of motorized recreation to the state are massive as well and are highly at risk in the current Proposal given the concept of route density being addressed specifically in the Proposal. In 2014, CPW, USFS and BLM partnered with COHVCO to undertake an economic contribution study from the recreational use of off highway motorized vehicles in Colorado.[29] While slightly out of date at this point, these contributions remain immense and were found to account for more than $2.3 billion in economic contributions, more than 17,000 jobs and more than $300 million in tax revenues.

Any assertion that such a massive economic contribution is insufficient to warrant inclusion in NEPA analysis simply lacks any factual basis. It would be highly frustrating to open collaborations when contributions such as this are not worthy of recognition. This type of arbitrary resolution of considerations will cause concern and frustration from the public generally, and our members more specifically, as the Proposal moves forward.

4c.  Economic contributions of wildlife tourism are almost non-existent.

Under ESA processes for habitat designations and general NEPA analysis planners are required to address economic impacts of decisions around the reintroduction of the wolves in the ecosystem.  We again believe these issues are highly relevant to understanding the climate the Proposal is being developed under.  Too often we are hearing comical assertions that wildlife will drive eco-tourism and related economic impacts will simply flow from the reintroduction to local communities.[30] That is simply without factual basis and almost all research we have seen has been hugely generalized and overly broad.

The lack of factual basis of these assertions is exhibited by the fact that wolves were reintroduced into the Yellowstone Park about the same time as snowmobile closures were undertaken in the park.  The value of recreation to these local communities is well demonstrated prior to the Yellowstone closures for snowmobiles.[31] While a hugely developed diverse population of wildlife has been on the landscape and easily seen in the winter, tax revenues and jobs from winter recreation in the Yellowstone Park remain only a small fraction of the previous levels.  People simply are not visiting these areas to view wildlife in sufficient numbers to offset visitation lost from more generalized recreation.  This is highly relevant to this discussion as tourists are not going to Colorado primarily to see wolves, if you are skiing at Steamboat or Vail your decision is driven by a desire to ski not see wildlife.

9. Conclusion

The Organizations participated in the public meetings that were provided by the BLM on this issue and were surprised to hear a FAR more broad scope of the project than is currently provided for. Our experiences with the Sage Grouse management efforts have allowed us to understand that anytime route density standards are addressed, such as in the Proposal, there will be recreational impacts due to route closures. This is a situation where one size fits all management is totally inappropriate and significant amounts of work must be performed on existing data to understand the myriad of site-specific issues that species are facing in the state and what previous management challenges have been faced in these areas. While the state of Colorado may have requested this review, it does not absolve the BLM of basing management decisions on best available science.

The Organizations are very concerned that a significant amount of foundational analysis for the effort does not appear to have occurred and if it has occurred it has not been discussed. The Organizations submit this spans many facets of the Proposal, which ranges from questions like has there been a decline in wildlife populations in Colorado?  Is there a single factor causing the perceived decline in wildlife populations? If so, how was this determined.  What was the time frame for this conclusion and analysis?  How was the relationship between an asserted decline in populations been attributed to a lack of habitat? These are foundational questions that must be addressed before any range of alternatives is even formulated, as our minimal research indicates there are a huge number of factors impacting wildlife populations, ranging from the window of time used to analyze declines or increases, poor data being available for analysis and other management efforts driving down populations based on best available science.  Once these other factors are addressed the Organizations vigorously assert the relationship between populations and habitat declines must be established.  This simply has not been done to date. If the BLM is going to move forward with any analysis of options as required by NEPA, these are foundational questions that must be addressed.

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

Sincerely,

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

Chad Hixon
Executive Director – TPA

Marcus Trusty
President – CORE

 

[1] See, Executive Order  §11644 at §3.

[2] For more information on this program please see the following link: Colorado Parks & Wildlife – OHV Grant Application Forms (state.co.us)

[3] More information on this program is available here: Colorado Parks & Wildlife Partners with Colorado Youth Corps Association – Pagosa Daily Post News Events & Video for Pagosa Springs Colorado

[4] See, CPW Colorado’s Big Game Habitat and Connectivity: Opportunities for Policy Solutions; 2021

[5] A complete copy of this grant is available here:  31-Travel_Management_Signage_2023.pdf (state.co.us)

[6] See, Colorado Parks and Wildlife; Colorado Bighorn Sheep management plan 2009−2019; February 2009 at pg.1.

[7] See, CPW E25 1999 Williams Fork Elk Herd management plan at pg. 4

[8] See, CPW E25 1999 Williams Fork Elk Herd management plan at Pg 11.

[9] See, CPW 2017 E25 Williams Fork Elk Herd management plan at pg. 9.

[10] See, 1999 E25 plan Williams Fork Elk Herd management plan at pg. 25.

[11] See, BLM Gunnison Basin Travel Plan FEIS 2010 at pg. 262.  a complete copy of this documentation is available on request.

[12] See, CPW E13 Elk Herd Plan (1999) at pg. 1. As this report is not easily available, we have enclosed a copy as Exhibit “3”

[13] See, WildEarth Guardians webinar at 5 minutes of 1hr 3-minute webinar.  A complete copy of this webinar is available for viewing here: Colorado Wolf Restoration Plan webinar – YouTube

[14] See, SAN LUIS VALLEY ECOSYSTEM COUNCIL, SAN JUAN CITIZENS ALLIANCE, THE WILDERNESS SOCIETY, and WILDEARTH GUARDIANS, Petitioners vs. DAN DALLAS; and UNITED STATES FOREST SERVICE; IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO; Civil Action No. 1:21-cv-2994

[15] See, Taylor and Knight; WILDLIFE RESPONSES TO RECREATION AND ASSOCIATED VISITOR PERCEPTIONS; Ecological Applications, 13(4), 2003, pp. 951–963

[16] See, Western Governor Assoc; Case Study:  State, Federal, Local and Private Entities Collaborate to Build Wildlife Crossings along a 12-Mile Stretch of Highway 89 in Southern Utah 2014 at pg. 4. A complete copy of this study has been attached as Exhibit “4”to these comments.

[17] See, DOI Secretarial Order 3362 @ §4(b)(2)

[18] See, Millspaugh et al: Models for planning wildlife conservation in Large Landscapes; Elsiver Press 2009 at pg. 51.

[19] See, Millspaugh et al; Note #10 at pg. 51.

[20] See, Carroll et al; Biological and Sociopolitical Sources of Uncertainty in Population Viability Analysis for Endangered Species Recovery Planning; Scientific Reports; July 12, 2019

[21] See, Wikipedia.com; definition of scientific modeling @ https://en.wikipedia.org/wiki/Scientific_modelling accessed September 1, 2020

[22] See, Zwilling, Martin: 7 Steps for Establishing the Right Business Model; January 30, 2015.

[23] See, https://www.wikihow.com/Make-a-Mathematical-Model

[24] See, Orloff & Strong; Models for planning wildlife conservation in large landscapes; 2009

[25] See, Millspaugh et al; Models for Planning Wildlife Conservation in Large Landscapes, Elsiver Publishing 2009 at pg. 5. Internal citations omitted

[26] 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.

[27] See, US Government Interagency Report: Conserving and Restoring America the Beautiful; 2021 at pg 15. A complete copy of this report is available here. Report: Conserving and Restoring America the Beautiful 2021 (doi.gov)

[28] See, CPW 2017 Statewide Comprehensive Outdoor Recreation Plan:  Appendix F Pg. 111. Dated July 23, 2018.

[29] A complete copy of this study has been provided with these comments as Exhibit “6”

[30] The Economic Benefits and Struggles of Wolves in Yellowstone | Good Nature Travel Blog (nathab.com)

[31] See, Taylor et al; Economic Importance of the Winter Season to Park County, Wyoming,  May 1999.

Continue Reading

Reconsideration of 2020 San Rafael Desert Travel Management Travel Management Plan – Comments

RWR TPA CORE COHVCO logos

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

 RE: Reconsideration of 2020 San Rafael Desert Travel Management Travel Management Plan

Dear BLM Planning Team:

Please accept this correspondence from the above organizations as our official comments regarding the reconsideration of the 2020 San Rafael Desert (SRD) Travel Management Plan (TMP).

1. Background of Our Organizations

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

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

The Colorado Off-Highway Vehicle Coalition (COHVCO) is a grassroots advocacy organization of approximately 2,500 members seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado.  COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. COHVCO is a signatory to the subject 2017 settlement agreement that directed the BLM to produce a TMP in the SRD planning area.

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 educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands. RwR has also participated in the Price Resource Management Plan 2008 revision and subsequent amendments.

The Trails Preservation Alliance (TPA) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple use recreation. The TPA acts as an advocate for the sport and takes necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands to diverse multiple-use recreation opportunities. The TPA is a signatory to the subject 2017 settlement agreement that directed the BLM to produce a TMP in the SRD planning area.

The Organizations and its contributors, along with local OHV clubs like Sage Riders Motorcycle Club and Castle Country OHV Association, have enjoyed riding for generations in the SRD, including on the 195 miles of routes to be reconsidered. Use rose in the 1970s, including BLM-permitted motorcycle races called the annual Mail Run that ran for a decade, which included racing down the entire length of Cottonwood Wash. Use of this and other routes remained strong through the 1990’s and 2000’s until the BLM technically closed the vast majority of SRD routes in 2008. Some of our contributors helped the BLM to inventory routes in the SRD. After passage of the Dingell Act in 2019, use in the SRD (other than the part designated as Labyrinth Canyon Wilderness), use has slowly but surely started to return. After approval of the 2020 SRD TMP, some of our contributors assisted the BLM to start implementing the decision, including on some of the reconsideration routes.

2. Introduction

In good faith, the Organizations will take the BLM’s invitation to comment on its preliminary proposal to close most of 195 miles designated open in the 2020 SRD TMP but then slated for reconsideration by the 2022 settlement agreement. First, though, we should recall how access to existing routes in this planning area has been tied up for fourteen years and counting. The 2008 RMP simply did not produce a complete, coherent, or legally defensible TMP in the SRD. In fact, it didn’t even produce an inventory of the existing routes. Instead it pledged to do a proper TMP in the SRD within five years, asking the public to comply with an incomplete TMP in the meantime. This timeline was stalled by several rounds of settlement talks with wilderness-expansion groups stemming from a partially-adverse ruling of the Richfield RMP, which managed to wrap the SRD TMP into the 2017 settlement agreement.

The Dingell Act designated approximately 660,000 acres of Wilderness in Emery County, including the Labyrinth Canyon Wilderness in the SRD planning area that removed 80 miles of existing routes from further consideration, which were some of the best routes. The remainder of this planning area became increasingly important for motorized recreation displaced by the wilderness designation that closed hundreds of miles of existing routes across Emery County. Fortunately the SRD has fewer natural- or social-resource concerns than the Wilderness areas, so we expected a high density of routes to be designated.

The 2020 SRD TMP designated 767 miles of route open but, especially considering that many of these miles actually consist of state/federal highways for which the BLM has no jurisdiction, 767 miles is actually a low density of routes across a 377,609 planning area. The Organizations chose not to appeal the 2020 decision largely because we prefer to work with the BLM and fix shortcomings through subsequent planning to enhance the TMP. However wilderness-expansion groups appealed to the IBLA and, thanks to our work as defendant intervenors, their request for a stay of the 2020 SRD TMP was denied. Under a new administration, the BLM chose not to implement its TMP anyway, even rejecting volunteer help from us and local OHV clubs. The wilderness-expansion groups switched to an appeal in federal court, and the BLM reached a settlement with them to the complete exclusion of OHV groups, Emery County, or the State of Utah. This 2022 settlement agreement was approved primarily because the BLM claimed not to have pre-determined the fate of the 195 miles of routes to be reconsidered.

Likewise the BLM claimed that its emergency closure of 35 miles of routes last January (a) would be temporary, (b) was unrelated to the settlement with wilderness-expansion groups, and (c) likewise would undergo subsequent planning for which the BLM claimed not to have pre-determined the fate of the 35 miles under emergency closure. The organizations are currently appealing the emergency closure in large part because the BLM has indicated that its purpose is to protect vegetation growing within the 35 miles of route, most of which are old bladed roads or parts of motorcycle race courses permitted by the BLM. Vegetation surveys of these routes suggest that the plants are common, not threatened or endangered species, and that the population of common plants would not have considerable adverse effects from use of the routes. Further, managers should expect the presence of vegetation on routes that were technically closed by the 2008 SRD TMP, especially since much of the planning area is dominated by migrating sand dunes.

Perplexingly the ePlanning site for reconsidering 195 miles of routes designated open by the 2020 TMP barely mentions that 35 miles of them are actually closed. The BLM has provided no evidence that vegetation on these routes should be a management concern yet, particularly on routes with vegetation, the BLM’s preliminary proposal favors closure. Proposing to close most of the 195 miles of routes suggests that the 2022 settlement agreement was prejudiced and pre-decisional, in violation of NEPA.   Proposing to permanently close all 35 miles of routes suggests that the “temporary” closure last January likewise had a pre-decisional prejudice toward a “permanent” closure in violation of the letter and intent of the “temporary” closure regulation. This impression is reinforced by the fact that no data or rationale from additional field work has been provided to justify this proposal to close another hundred-plus miles of routes in the SRD. This lack of explanation seriously hampers our ability to meaningfully comment on your preliminary proposal.

The BLM has thus far refrained from outlining a normal process of travel planning that would provide full analysis and ample opportunity for the public to comment on it. We strongly urge you to propose leaving most if not all of the routes open, provide complete rationale for any additional closures, and give us plenty of time to review it before you make a final decision. Anything less would undermine the legitimacy of your flurry of SRD activity in the legal realm, which is in stark contrast to the lack of implementation activity for two years, as off-highway vehicle riders have patiently and constructively worked with your planners in the SRD for the past fourteen years.

 3. Specific Comments

One month—the hottest month of year—has not been enough time to review the BLM’s preliminary proposal, so we are focusing on the most concerning routes that you propose to close. Please know that we support all of the routes that you propose to leave open, as most of them have great purpose and need. We also support the August 1st comments from the Sage Riders Motorcycle Club that primarily highlight some of the most important routes that you propose to leave open, and have enclosed them, as we request that you consider them as part of our own comments.

Likewise please consider as part of our comments the ones we submitted in regard to:

  1. 2020-10-29 “Opposition to Petition for Stay” as defendant intervenors in the wilderness-expansion groups’ appeal of the 2020 SRD TMP,
  2. 2022-04-11 Opposition to 2022 settlement agreement between the BLM and wilderness-expansion groups, and
  3. 2022-05-31 “Appellants’ Statement of Standing and Statement of Reasons for Appeal of the Temporary Closure Order”.

In particular, note the 2022-05-31 document and associated declarations regarding the 35 miles of temporarily-closed routes, which refute BLM claims that the routes “have fully reclaimed, are not apparent on the ground, or are otherwise inaccessible by routes authorized for public OHV use” and that use of the routes “will cause considerable adverse effects to resources including, but not limited to, soil and vegetation.”

In fact, the Organizations refute any similar claims that the BLM may apply to the remainder of the 195 miles of routes to be reconsidered. The reconsideration routes almost entirely avoid riparian areas. They cross areas that the 2008 RMP determined to have wilderness characteristics, but it also determined not to manage for those characteristics (other than a small portion of what has subsequently been designated as Labyrinth Canyon Wilderness), so closing more routes in order to increase wilderness characteristics should only be done in the planning area after amending the 2008 RMP accordingly. Views of the Green River are a virtue of a few reconsideration routes and, even cumulatively, they don’t cause considerable adverse impacts upon river use. Further, the Dingell Act designated most stretches of the Green River as some type of Wild And Scenic River. It did not make such a designation for the stretch where the BLM’s preliminary proposal would close more routes, so the BLM should recognize those routes as entirely suitable for motorized recreationists to view the river.

The existence of vegetation on designated routes is not a sufficient reason to close the routes, nor does it prove that the routes are unused, nor does it prove that the routes are valueless (i.e. lack a purpose or need at present or in future). For example, many segments of routinely graded, Class B roads in this planning area are currently covered in vegetation, such as SD211 and SD212 (see photos of both routes taken on August 7th, 2022). Especially since most routes in the planning area have been technically closed since 2008 (which most of the public honored even though the closure was not legally defensible due to the TMP in this planning area being blatantly incomplete and incoherent), it is high time for the BLM to stop closing more routes for the sake of common plants growing on old bull-dozed roads and permitted motorcycle-race courses, and to start managing use on the ground for the first time in the history of the San Rafael Desert.

In all cases listed below, the photos demonstrate that the routes are apparent. Compared to the nearby graded roads, the routes provide a more primitive experience, some degree of intimacy with the surroundings, and a sense of challenge or flow. A quality OHV ride depends on piecing these primitive routes together without graded roads while including enough points of interest and variety of terrain.

SD051 and SD052 (See photo of SD051 in this document.)

These routes provide a more primitive alternative to Hans Flat Road.

San Rafael Desert SD0051-SW-end

SD078 (See both photos and satellite image in this document.)

This route provides convenient access to Temple Wash. As with many areas adjacent to a highway corridor, it is denuded, although a singletrack is surrounded by some degree of vegetation. At its north end, the downed fence has a gate indicating where the route went through the gate. Recent scouring of Temple Wash below the highway bridge may impede larger vehicles, but smaller vehicles can already get through all of SD078, and larger vehicles could do so after basic tread work with support of local OHV clubs or the state’s OHV program.

San Rafael Desert - SD078-SW-end San Rafael Desert - SD078-NE-end

SD079 (See photo and satellite image in this document.)

Temple Wash has been permitted by the BLM for motorcycle races, and provides a dynamic challenge and flow that has become scarce as most other washes have been closed. This stretch of wash generally lacks riparian resources that may otherwise cause concern. Recent scouring of Temple Wash below the highway bridge may impede larger vehicles, but smaller vehicles can already get through all of SD079, and larger vehicles could do so after basic tread work with support of local OHV clubs or the state’s OHV program.

San Rafael Desert - SD079-SW-end

SD128 and SD319 (See photo of SD128 in this document and of SD319 in 2022-05-31 Declaration of Clif Koontz.)

Bypassing the highly-developed Hans Flat Road, these routes connect two highlights of the San Rafael Desert (at least of the part that hasn’t been permanently closed by wilderness designation), specifically Sweetwater Reef overlook and Jack’s Knob. Most of the route is on SITLA property, which has no other motorized access under the BLM’s preliminary proposal.

San Rafael Desert - SD128-NW-end

SD217 (See photo in this document.)

This route may seem redundant with SD309, but if you’re coming from SD326 (from Wayne County / Richfield FO) and you want to head north (to Moonshine Well), reaching SD309 via SD312 would seem circuitous to any group that’s hurrying for whatever reason.

San Rafael Desert - SD217-N-end

SD218 to SD372 (See photo of SD218 in this document and of SD372 in 2022-05-31 Declaration of Clif Koontz.)

This pair of routes primarily consists of a single, straight seismic line that provides the only east-west travel across a north-south expanse of over ten miles (from SD543 into Wayne County / Richfield FO) covering most of Antelope Valley. Although parts of the route are much less apparent, route markers could be placed at regular intervals to organize travel. It accesses the corner of a SITLA section.

San Rafael Desert - SD218-W-end

SD236 (See both photos in this document.)

This route is an alternative to the graded road, going across the shallow-yet-interesting canyon of Dugout Wash as well as a slickrock expanse, both of which nicely contrast the predominantly flat and sandy planning area.

San Rafael Desert - SD236-SW-end San Rafael Desert - SD236-NE-end

SD240 (See photo in this document.)

This route is an alternative to the graded road, providing over two miles of primitive road.

San Rafael Desert - SD240-NW-end

SD250 (See photo in 2022-05-31 Declaration of Clif Koontz.)

This route accesses SITLA property and the small-but-scenic Red Reef, which also makes the route itself more rolling and interesting.

SD715 and SD720 (See photos of SD715 and SD720 in this document.)

This route traverses the southeast rim of Gruvers Mesa, providing views that are different from the route on the northwest rim. The end the road, which accesses SITLA property, is particularly scenic.

San Rafael Desert - SD715-W-endSan Rafael Desert - SD720-W-of-midpoint

SD740_S2 (See both photos in this document.)

This route is part of a short-but-great loop partly due to the rolling terrain. Its southeast end offers views up to The Cone, while the northwest end offers views down to the San Rafael River (while generally staying back off of its rim). The route is entirely passable by motorcycle, and could be made more accessible to larger vehicles by doing basic tread work with support of local OHV clubs or the state’s OHV program. The middle part could easily be realigned to reduce the grade for sustainability, but this shouldn’t be an immediate concern due to the low use levels associated with such a remote location. Note that SD741 is also a high-quality route but, given the SD740 already provides views of the San Rafael River in a loop, the SD741 spur is not as important.

San Rafael Desert - SD740_S2-W-of-midpoint San Rafael Desert - SD740_S2-near-SE-end

SD762 (See photo in this document.)

This route creates a loop with SD210, which is a five-mile route that would otherwise be one-way. This loop is a more interesting way to reach the San Rafael River overlook of SD763. Although parts of the route are much less apparent, route markers could be placed at regular intervals to organize travel.

San Rafael Desert - SD762-near-SW-end

SD781 (See photo in this document.)

This route creates a loop to a view of the San Rafael River from the river’s north side. It traverses rolling red-rock terrain off the flank of Horse Bench that makes for a high-quality route.

San Rafael Desert - SD781-near-N-end

SD857 and SD858 (See photo of SD857 in this document.)

This pair of routes makes a larger loop out of the same one as SD781 that reaches a view of the San Rafael River from the river’s north side. It also reaches the corner of a SITLA section.

San Rafael Desert - SD857-E-end

SD869 and SD870 (See photo of SD869 in this document.)

This pair of routes reaches SITLA property and a point overlooking the San Rafael Valley as well as the geologic transitions from the sandstone formations southward and the shale formations northward.

San Rafael Desert - SD869-near-NE-end

SD1029 (See photos and satellite image of SD1029 and SD1029 alternate.)

This route meanders through badlands of the Morrison Formation to reach SITLA property and a panoramic view of Dry Lake Wash and beyond. Since this area is nearly void of vegetation, the Organizations are wondering why the BLM would preliminarily propose to close it (even more than we’re wondering why all the other closures are proposed). Perhaps it’s because the wash where the route begins is so broad that the route is less distinct. This shouldn’t be an immediate concern given that the area is naturally barren, but eventually you could reroute it to the existing primitive road that lies a quarter-mile northward. It’s a more distinct route that stays even further away from Horse Bench Reservoir.

San Rafael Desert - SD1029-SE San Rafael Desert - SD1029-alternate-E

SD1303_S3 (See both photos in this document.)

This route gradually winds up a hill and then down the other side to the Green River. If there are noise concerns along the river (despite that the river will continue to be used by motorboats), note that vehicle sounds from SD1303_3 are drowned out by the loud diesel of major irrigation-water pumps a couple-hundred yards upstream. If there are concerns about the route dropping down to river-bank level, the BLM could close the last hundred yards of the route so that OHV riders could still view the river from atop the small rim.

SanRafaelDesert-SD1303_S3-SW San Rafael Desert - SD1303_S3-NE

In addition to the routes listed above, the 2022-05-31 Declaration of Clif Koontz includes photos of the following routes:

SD143
SD182
SD221
SD236
SD303
SD335
SD345
SD346
SD396
SD759
SD940

The photos document the apparency of these routes, which have a purpose and need by providing things like singletrack character (e.g. SD940 that was permitted by the BLM for motorcycle races) and a primitive alternative to graded roads (e.g. SD221 to SD335 as well as SD345 to SD346).

4.  Conclusion

Keeping these routes open, along with the ones that your preliminary proposal already would keep open, is key to conserving a modest quantity and quality of routes for piecing together a weekend’s worth OHV rides in the San Rafael Desert. We implore you to accommodate this type of recreation considering the context of increasing use and decreasing access.

Sincerely,

Clif Koontz
Executive Director
Ride with Respect

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President/Founder
Colorado Off Road Enterprise

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

Continue Reading

August 2022 Newsletter

Rider on bike going over boulders

Update from the Trails Preservation Alliance

 

Hello Friends!

We are in the midst of our peak riding season in Colorado and with any luck, this message will  find its way to you after enjoying an EPIC ride!

Since our last newsletter in the spring we’ve been very busy here at the Trails Preservation Alliance. We hosted the 3rd Annual TPA Partner Club Meeting, wrapped up our second TPA Bike Sweepstakes, and have been making our way around the state this summer attending events, and visiting land managers and clubs.

The visits with the land managers and clubs are not only awesome for face-to-face time with locals but also help us to understand the different trail systems, and gave us the opportunity to discuss issues and opportunities for off highway motorcycle recreation within those areas .

We’ve been to numerous conferences, meetings, and events representing the off highway motorcycle community including; Partners in the Outdoors, Colorado Outdoor Industry Leadership Workshop, NOHVCC Great Trails Workshop, and the Shady Burro Enduro.

Aside from keeping up with issues that are affecting motorized recreation and access to public lands in Colorado, Utah and New Mexico, much of our focus has now turned to the planning of our largest fundraiser, the Colorado 600 Trails Awareness Symposium, which starts September 11, 2022.

Read on for more information – see you on the trail!

 


 

TPA Partner Club Meeting

The 3rd Annual TPA Partner Club Meeting was held in March in Grand Junction, CO. We hosted 22 different organizations with 42 representatives from clubs around Colorado and Utah, as well as CPW State Trails OHV sub-committee members, BLM Grand Junction Field Office, USFS Salida Ranger District, and Utah’s Ride with Respect. It was a successful meeting, and great to have so many motorcycle advocacy groups in the region gather, network, and discuss topics to preserve our sport!

The first day was spent discussing various issues and on the 2nd day, we went riding! Attendees were shown around Bangs Canyon, an area near Grand Junction where the BLM along with assistance from local clubs (Motorcycle Trail Rider Association, BookCliff Rattlers Motorcycle Club, West Slope ATV, and the Thunder Mountain Wheelers) have been constructing new motorized trail opportunities.

Trail Tools for Clubs – The TPA was pleased to present each club with a Trail Boss Trail Tool Kit and a Silky Katana Boy as part of a CPW OHV Grant the TPA was awarded.  These packable yet durable Tool Kits will help the clubs with their trail work efforts by allowing them to be easily transported to remote locations.

If you are looking for some assistance starting a local club in your area please reach out to the TPA by email to chad@coloradotpa.org.

TPA Partner Club Meeting - riders lined up

 


 

2022 Bike Sweepstakes

On May 17th 2022 we drew the lucky winners of the TPA Bike Sweepstakes – Congratulations to our winners!

  • Francisco Ramos of Greely, CO. Grand Prize Winner!
  • Daniel Woodberry of Nampa, ID. 2nd prize winner of the $1200 KLIM Shopping Spree.
  • Ty Witten of O’Fallon, MO. 3rd prize winner of a trip to the 2022 Colorado 600 Trails Awareness Symposium.

The 2nd annual TPA Bike Sweepstakes was a terrific success, thanks to everyone who contributed their time and effort to make it happen.  Thanks to the volunteers, everyone who helped us spread the word, businesses who supplied prizes, shops that displayed posters and all the donors who purchased tickets we raised  $120,200!

 

Sweepstakes winners

 


 

Change in the TPA Board of Directors

TPA Board of Director member Dennis Larratt moved on from the TPA board. We would like to thank Dennis for his service not only to the TPA, but to the greater motorized recreation community!

Dennis worked with Don Riggle from the founding of the TPA, and since early 2018, has been a member of the TPA Board of Directors. Prior to that, he was one of the founding members and served on the COHVCO Board of Directors, testified before Congress on behalf of public land access issues, and was an integral part of the team that created the Colorado OHV sticker program which has funded over $73 million dollars in OHV related projects across the state. He contributed an amazing amount of time to preserve the sport of off-road motorcycling in Colorado. His efforts and dedication will have tremendous effects for decades to come.

Thank you Dennis!

 


 

New TPA Creative Director – Christina Hall

We are pleased to announce that a longtime (15+ years!) TPA marketing, graphic design and communications consultant Christina Hall has joined the TPA team!

Christina has extensive experience consulting for a variety of non-profits as well as worked for San Diego Humane Society, Montana State University, and USGS. Having Christina on board will help us to increase our outreach, build our brand and help fulfill the TPA mission. We are excited to have her join us not only for her experience and expertise but also for her easy-going attitude and her love of riding. Christina rides a Bonneville T100 (we’re working on getting her onto a trail bike!) and lives in San Diego, CA.

Christina and her Triumph

 


 

TPA Helps at the Shady Burro Enduro

The TPA had a great time running tech inspection for the Shady Burro Enduro. We would like to send out special thanks to those that helped; Angela Hixon, Larry Beaver, Boot Hill Motorcycle Club (Daniell and Zachary Hatton), Ruke Dyar, Stay the Trail (Sam Logan) and last but not least Dos Locos (Kevin and Michelle Busch).

The TPA would also like to send a BIG thank you to JTB (aka Jud and Tina Barlow) promotions for their generous donation of $5000 to the TPA. Thanks for your dedication and hard work that make this truly unique event a reality and for giving back to the off highway motorcycle community!

JTB Promotions and their amazing crew of staff and volunteers put together another great course through some epic Rocky Mountain single track! The rigerous course, coupled with above-average moisture in the South Fork area, all came together to create an event that proved challenging for even the most experienced riders.

Congratulations to Max Gerston for taking 1st Place overall on both days. Check out Day 1 and Day 2 results here.

 

TPA at Shady Burro

 


 

Gold Rush Raises $4,270 for the TPA

Thank you Gold Rush Riders and Steve and Lyndi Widener for raising $4,270 to help Save The Trails!  In 2022 this family-oriented “fun ride” spent two days exploring the Ouray, CO. area before moving to Crested Butte and spending two more days riding in central Colorado. Each year this event ends with a banquet and raffle, with the proceeds donated to the TPA. So once again, thank you for your continued support, and here is to another successful Gold Rush!

If you’re interested in participating in the 2023 Gold Rush Ride August 7th -11th check out their Facebook group.

 


 

Club Spotlight

San Juan Trail Rider logoEstablished in 1998, the San Juan Trail Riders (SJTR) are now in their 3rd decade fighting the good fight for multi-use singletrack and motorcycle recreation in Southwestern Colorado. The SJTR provides an organized network for enthusiasts to make contact, build camaraderie, and share interests. In addition, they promote active participation in OHV trail management and other civic activities by encouraging cooperation and coordination between other forest user groups and organizations.

Goals

  • Advocate for Off Highway use of public lands.
  • Enhance awareness multi user-groups and public lands.
  • Build relationships with land managers and other user groups.

Accomplishments

  • Funding and implementation of 100+ mile Turkey Springs/Devil Mountain trail system in the Pagosa Ranger District.
  • Hermosa Drainage.
  • Securing motorized designation for Starvation Creek, Rampart Hills, Upper Chicken Creek, Morrison, Deer Lick Creek, Box Canyon & Gold Run Trails, and development of Bear Creek Rim Trail in the Dolores Ranger District.

Thank you, SJTR – you are a truly collaborative partner and steward of the land!

 

San Juan Trail Riders (SJTR)

 


 

Land Use and Legal Issues

 


 

Stay On The Trail

Stay On The Trail – as responsible riders, this is the most important thing we can do. Going over, under, or through obstacles has been the message we’ve shared (including ads in UpShift Magazine below) over the past two riding seasons, and we ask that you help us spread the word!

The bulk of the trail clearing season is behind us, but don’t lower your guard – trees fall all year long, so continue to carry a hand saw. Mud puddles form on the trails every time it rains – ride through them. Obstacles like rocks and branches will be in your path – go over them. Let’s all do our part to keep singletrack single!

Stay on the Trail - UPSHIFT ad

 


 

Let’s Get Social

The TPA has been increasing our outreach on Social Media – Follow Us on FacebookYouTube, and Instagram!  And don’t forget to share our messages with your friends!

Instagram on phone

 


 

TPA Sponsors

 

 

 

 

Continue Reading

Black Canyon Corridor Travel Management Plan Comments

BLM Hassayampa Field Office
VIA:  Comment now Portal

RE: Black Canyon Corridor Travel Management Plan

Dear Sirs;

Please accept these comments as the vigorous opposition from a broad spectrum of multiple use motorized recreational interest groups to the Proposal and range of alternatives that have been provided.  Our most specific concern involves the ongoing desire of local land managers to designate exclusionary corridors around any route that has been designated pursuant to the National Trails System Act. This type of exclusionary non-motorized corridor conflicts with recent decisions by the US Supreme Court, the Trails System Act and the Relevant Resource Management Plan for the SRMA. While the Organizations may be able to envision some type of corridor concept being applicable to the area, where uses unrelated to the trail are restricted or prohibited, we are unable to envision where trail usages are restricted or prohibited given the usages identified in the SMRA and relevant statutes and US Supreme Court decisions. The Organizations vigorously assert that the conflict with the RMP is unresolvable as the management direction for these areas as laid out in the RMP are not even arguably addressed in any alternative of the Proposal.

Prior to addressing our specific concerns with the Proposal, we believe a brief summary of each Organization is needed.  The Trails Preservation Alliance (“TPA”) is a volunteer 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 trail riding and multi-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 multi-use recreational opportunities. TPA is referred to as “The Organization” for purposes of these comments.

1. The Proposals exclusionary corridors conflict with the US Supreme Courts 2020 Cowpasture decision applying the National Trail System Act.

The above Organizations wanted to provide a copy of the 2020 US Supreme Court ruling clarifying the management relationship of lands that are managed under multiple use mandates by the USFS and also designated as a National Trail System Route, such as the Black Canyon National Recreation Trail.  We have been active participants in the winter travel planning on the multiple forests in California and are intimately aware of the conflict around management of these areas in the winter travel planning process and are intimately aware of the massive amounts of conflict that can result from the possible application of exclusionary corridors such as those now proposed. We are aware winter travel management is not at issue here but our experiences in these efforts remain highly relevant to the current effort.

In the 7 to 2 ruling entitled US Forest Service vs. Cowpasture River Preservation Association[1], the US Supreme Court addressed the management relationship of the National Trails System Act and the Multiple Use mandate of the US Forest Service for the corridors around NTSA routes and the designated trail itself.  We have enclosed a complete copy of the Supreme Court decision and Congressional Research Service Report summarizing the decision.   The Supreme Court clearly stated the mere designation of any route under the National Trails System Act does not alter the multiple use mandate of the agencies managing this land. Economic impacts of excluding multiple uses from these areas was a major concern in these discussions.

The Court also clearly found that the use of the right of way concept was not intended to alter the multiple use mandate but rather was a limited transfer of management authority between the Acts.  The Court clearly stated if Congress had the desire to remove the multiple use mandates from these Routes, Congress clearly could have. The Court fought Congress did not do this.    The Court compared the retained multiple use mandate of the National Trails System Act to the Congressional decisions to remove Wild and Scenic Rivers from the Multiple Use mandates for areas designated. The Court ruling provides significant protection for continued multiple use access to public lands and prohibits many of the proposed closures of the trail and adjacent areas to multiple usage recreation.

The Organizations would additionally note that many of the Organizations which have been seeking these exclusionary corridors in the travel plans on the Field Office, made these same arguments to the Supreme Court.  The Court failed to apply these concepts, which are discussed in detail in the dissenting opinion that only garnered 2 votes, leaving little room for continued application or analysis of these positions in planning. The Organizations vigorously assert that the Proposal must be withdrawn and a range of alternatives provided that align with the 2020 US Supreme Court Cowpasture decision that mandates multiple use mandates remain on the lands regardless of the designation of routes by Congress.

2. Exclusionary Corridors and exclusive usage requirements directly conflict with the provisions of the National Trails System Act.

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

“Development and management of each segment of the National Trails System shall be designed to harmonize with and complement any established multiple use plans for that specific area in order to insure continued maximum benefits from the land.[2]

Congress clearly had the opportunity to manage NTSA routes under a single management standard, such as “horse or hike only” and specifically chose not to require such management but rather specifically provides that management must be harmonized with existing multiple use goals and objectives for the areas. As discussed in later portions of these comments, Congress has provided great deal of documentation regarding why the NTSA has been framed in the manner it is currently in. Many of these concerns are highly relevant to the Proposal as the Organizations are very concerned that improper application of NTSA requirements in the Proposal would allow these types of decisions to be applied in other portions of the Black Canyon NRT.  This larger scale application of exclusionary standards would immediately create many of the same conditions that are addressed and avoided in the Congressional reports prepared around the NTSA and related amendments.

Congress has resolved these conflicts in a clear manner and this has allowed a significant expansion of the number of NTSA routes, and this type of a concern is outside the scope of NEPA analysis for the Proposal but is also highly relevant to the discussion and our concerns.   The NTSA also specifically identifies that all national trails shall be managed as follows:

“(2) National scenic trails, established as provided in section 1244 of this title, which will be extended trails so located as to provide for maximum outdoor recreation potential and for the conservation and enjoyment of the nationally significant scenic, historic, natural, or cultural qualities of the areas through which such trails may pass.” [3]

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

“(j) Types of trail use allowed
Potential trail uses allowed on designated components of the national trails system may include, but are not limited to, the following: bicycling, cross-country skiing, day hiking, equestrian activities, jogging or similar fitness activities, trail biking, overnight and long-distance backpacking, snowmobiling, and surface water and underwater activities. Vehicles which may be permitted on certain trails may include, but need not be limited to, motorcycles, bicycles, four-wheel drive or all-terrain off-road vehicles. In addition, trail access for handicapped individuals may be provided. The provisions of this subsection shall not supersede any other provisions of this chapter or other Federal laws, or any State or local laws.” [4]

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

“A new subsection 7(j) is added to specify various types of potential uses which may be allowed on specific components of the National Trails System. The uses listed are not intended to be all inclusive, but to illustrate the wide range of recreation pursuits which may be served by various trails. While the new subsection would permit the appropriate secretaries to allow trail bikes and other off-the-road vehicles on portions of the National Trail System, the Committee wishes to emphasize that this provision gives authority to the secretaries to permit such uses where appropriate, but that it must also be exercised in keeping with those other provisions of the law that require the secretaries to protect the resources themselves and the users of the system.” [5]

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

When the evolution of the NTSA is reviewed in more detail, the reasoning for the various amendments provides a great deal of information and understanding around the current version of the NTSA.  The direct material conflict the current provisions of the Proposal and related guidance documents  provide to the explicit intent of Congress. The NTSA concept originated in the Executive Branch of the Federal Government with an order from President Johnson in 1966 which provides as follows:

“In April 1966 Secretary Udall requested the Bureau of Outdoor Recreation to take the lead in a nationwide trails study. This assignment was made in response to President Johnson’s Natural Beauty Message of February 8, 1966, in which he called for development and protection of a balanced system of trails—in the Nation’s metropolitan areas as well as in the countryside—in cooperation with State and local governments and private interests.

He called for such a trail system to help protect and enhance the total quality of the outdoor environment as well as to provide much needed opportunities for healthful outdoor recreation”[6]

In response to this Presidential Order,  the 1966 “Trails for America” report was created and addressed the compelling need at the time to develop a motorized recreational trail network, providing as follows:

“There is a pressing need for places in which to ride bicycles safely. Recreational riding, bike hikes, youth hostel activities, bicycle clubs, and the like are becoming increasingly popular for all ages. The need is especially acute in urban areas. Similar growth is being experienced in horseback and trail scooter (trail bike) demand. The Breeders Gazette reports horse registrations are on the increase and the demand for quarter horses is growing. More than 5 million Americans were reported to be riding trail scooters or motorcycles in 1966.” [7]

The 1966 Trails for America Report continues to address motorized usage on National Trails as follows:

“Trail scooters designed for trail travel pose the greatest problem of incompatibility. Beginning about five years ago with the introduction of small, light, relatively inexpensive machines, the popularity of trail scooters has grown rapidly. A survey of trail scooter owners in 1962 revealed that the typical owner utilized the vehicle chiefly for Fishing and hunting or recreational riding. Trail scooters are prohibited on trails in National Parks and National Wildlife Refuges, as they are in wilderness and primitive areas of the National Forests. Forest Service regulations also prohibit motor vehicle use of National Forest trails where it may cause damage, harm other values, or constitute a safety hazard. Trail scooters are not permitted on the portions of the Appalachian Trail within National Forests. However, much trail mileage in National Forests is open to trail scooters. Reasonable restrictions on the weight, speed, and horsepower of trail scooters, and effective devices to reduce their noise and fire danger are advisable. Where special wild- land, wilderness, or wildlife values are involved, as in the National Parks, National Forests, National Wildlife Refuges, wilderness areas, and on the Appalachian Trail, the present exclusion of motor vehicles, including trail scooters, should remain.” [8]

The 1966 Trails for America Report makes the following management recommendations:

“Recommended Program. Federal land-managing agencies need to undertake farsighted recreation trail development if they are to meet adequately the growing public demand. Hiking, bicycling, horseback riding, and trail scooter riding have increased substantially on many trails and are certain to accelerate in rate of growth in coming years. Abundant opportunities to build proper trails or rebuild old ones for recreation exist on most Federal lands.”[9]

While many may be surprised to see the concern about a lack of motorized opportunity on Federal Lands in this report, this was clearly a significant concern for both agency and legislative representatives when the Trails for America Report was prepared.  This explains why protecting a diversity of usages was a concern even when the NTSA was explored and adopted by Congress.  At no point was the concept of a trail network for only horse and hiking usage even explored but rather what became the multiple use concept was always the goal of the process.

Congressional actions in response to President Johnson’s Order began in 1968 with the passage of the National Trails System Act, which designated the Appalachian Trail and Pacific Crest Trail and ordered a review of a trail running generally from Canada to Mexico along the Continental Divide of the United States. [10]  Extensive background information regarding multiple uses of corridors and trails designated under the NTSA was originally addressed in House Report 1631 (“HRep 1631”) and Senate Report 847 issued in conjunction with the passage of the NTSA in 1968.  HRep 1631 provides a clear statement of the intent of Congress regarding multiple usages with passage of NTSA, and options that Congress declined to implement in the Legislation when it was passed.  HRep 1631 provides as follows:

“The aim of recreation trails is to satisfy a variety of recreation interests primarily at locations readily accessible to the population centers of the Nation.”[11]

HRep 1631 clearly and unequivocally states Congress declined to apply mandatory management corridors of any width in the Legislation.  HRep 1631 states:

“Finally, where a narrow corridor can provide the necessary continuity without seriously jeopardizing the overall character of the trail, the Secretary should give the economics of the situation due consideration, along with the aesthetic values, in order to reduce the acquisition costs involved.” [12]

Congress also clearly identified that exclusionary corridors would significantly impair the ability of the agencies to implement the goals and objectives of the NTSA as follows:

“By prohibiting the Secretary from denying them the right to use motorized vehicles across lands which they agree to allow to be used for trail purposes, it is hoped that many privately owned, primitive roadways can be converted to trail use for the benefit of the general public.”[13]

HRep 1631 clearly addresses the intent of Congress, and the internal Congressional discussions regarding implementation of the NTSA provisions for the benefit of all recreational activities as follows:

“However, they both attempted to deal with the problems arising from other needs along the trails. Rather than limiting such use of the scenic trails to “reasonable crossings”, as provided by the Senate language, the conference committee adopted the House amendment which authorizes the appropriate Secretaries to promulgate reasonable regulations to govern the use of motorized vehicles on or across the national scenic trails under specified conditions.”[14]

The Senate Report S847 prepared relative to the Senate version of the 1968 NTSA provides the clear Congressional desire to address multiple uses as follows:

“The Bureau of Outdoor Recreation points out that there is a pressing need for places in which to ride bicycles safely. Recreational riding, bike hikes, youth hostel activities, bicycle clubs, and the like are becoming increasingly popular for all ages. The need is especially acute in urban areas. Similar growth is being experienced in horseback and trail bike demand. Horse registrations are in the increase. More than 5 million Americans were reported to be riding trail scooters or motor-cycles in 1966.”[15]

The 1968 Congressional mandate for the CDNST route identification was completed with a report to Congress from the Department of Interior Bureau of Outdoor Recreation in 1977 and associated environmental impact statement. This analysis specifically addressed many of the challenges and possible impacts to other legal usages that were faced in simply laying out a route connecting the Mexico and Canada borders generally along the Continental Divide and recommended revisions of the NTSA. This basis and analysis sheds a large amount of light on why the NTSA is applied in the manner it is and why the Proposal directly conflicts with federal law. The challenges addressed with the CDNST and the alignment of the Proposal with these concerns cannot be overlooked. The CDNST report specifically states as follows:

“planners and this report recommend the inclusion of approximately 424 miles of existing primitive road rights-of-way in the proposed alignment of the Continental Divide Trail. Most are so primitive in nature that they would offer a recreational experience little different in quality from that where motorized vehicles are excluded. In some national forest areas, and in particular in Montana, these “roads” are no more than the two tracks created by the wheels of a rancher’s vehicle used occasionally to take salt, etc., to his stock summering in the forest. Such occasional vehicular use of the trail is provided for in the Act.

This report recommends a Continental Divide Trail routing that coincidentally uses primitive road rights-of-way such as along the east rim of the Great Divide Basin in Wyoming. The use of some 218 miles of lightly used road rights-of-way in the Basin was deemed to be justified because(1) the east rim was considered the best of two alternative routes, (2) the subject road rights-of-way are existing, (3) their use would be economical, (4) motorized use of these roads is very light and would have minimal adverse effect on hikers or horseback riders, and (5) the anticipated hiker-horseback use for this segment of trail is relatively small. This precedent is already well established on the Appalachian National Scenic Trail.

Therefore, Congress may wish to specifically recognize such coincidental use in any legislation establishing the trail. This, of course, should be subject to the following: the trail managing agency must find that such use would not impair the values for which the trail was established; that such use would not pose damage to natural and environmental values; that such use would not constitute a safety hazard to hikers or horseback riders: that such use would be compatible with other management objectives for the areas; and finally, the Advisory Council to the trail should deem it appropriate.” [16]

The Organizations are unable to find any portion of the NTSA that requires all portions of a NTSA route be designated for the exclusion of motorized access, as is asserted in the Proposal and related regulations cited.  Rather we are able to locate portions of the NTSA that allow closures of portions of any NTSA route to motorized and also specifically allows motorized usages on portions of the trail as well.  From the Organizations perspective, this is a reflection of the multiple use mandate that has governed Federal Public lands from more than 50 years that has simply been tailored to relate to a trail covering long distances. This multiple use mandate has never excluded anyone entirely but rather protects all members of the publics access to some portion of all NTSA routes. This Proposal must be withdrawn and corrected to reflect an accurate interpretation of the NTSA provisions governing the allowable usages of NTSA routes.  At no point does the NTSA provide for exclusion of all usages on the entirety of a trail.

3. Every Alternative of the Proposal directly conflicts with the SRMA designations made in the Resource Management Plan.

The 2010 Resource Management Plan that  designated the SRMA  that is ow the basis of the Travel Management Plan at issue identifies many criteria that are to be managed and improved once the various SRMA are designated.  These requirements in no way align with the Proposal. While these characteristics of the SRMA are specifically allowed in the various scoping PowerPoints provided for in the original EA development, no analysis is provided for why these alternatives and priorities were not carried forward in conformity with the RMP.[17]  The Organizations would note that the specific requirements and general direction of the entire SRMA planning effort incorrectly applies the designations and requirements for the SRMA provided in the RMP for the area as follows:

“Desired Future Condition
Complete the Black Canyon Trail north and east of Highway 69 to connect with trails in Prescott National Forest. Analyze, build and designate the trail to provide a non-motorized experience along the historic sheep driveway. Identify exact locations of the trail and facilities in conjunction with the Yavapai Trails Association and other interested citizens. Maintain rural roaded-natural and semi-primitive motorized settings as suitable…. Locate and develop staging, or camping areas near communities and vehicle access points to service the north Black Canyon Trail and adjoining public lands for the following purposes:  parking,  unloading OHVs and horses, and  picnicking…. Administrative Actions Work with citizen volunteer groups to complete a comprehensive strategy and trails plan for selecting and developing new single- and multi-use hiking, equestrian, and OHV trails for all lands in the SRMA.” [18]

Given that the expansion of OHV routes in the SRMA is specifically identified as a characteristic of the SRMA we must question how the current Proposal and the RMP can be reconciled. The Record of decision issued for the RMP also further clarifies the multiple use nature of the SRMA as follows:

“2.9.5. Travel Management

2.9.5.1. Management Actions

TM-46. Locate a motorized route, generally parallel to the Black Canyon Trail, to support a long distance motor vehicle route network.

TM-47. Build trails to link cultural public use sites to the Black Canyon Trail. Trails could lead to suitable sites including prehistoric hilltop structures, rock art, mining camps, and features of the historic Black Canyon sheep driveway.

Management decisions for the North Black Canyon Hiking and Equestrian Trails RMZ also relate to travel management, as do recreation management decisions RR-174 [106] and RR-176 [106].”[19]

The RMP ROD also clearly identifies that the Upper Agua Fria SRMA is to managed as follows:

“Upper Agua Fria River Basin SRMA

    • Work with citizen volunteer groups to complete a comprehensive strategy and trails plan for selecting and developing new single- and multi-use hiking, equestrian, and OHV trails for all lands in the SRMA. Collaborate with the Arizona Game & Fish Department, Prescott National Forest, Yavapai County, Yavapai County Trails Association….”[20]

The FEIS for the RMP further refines and clarifies the management direction for the Upper Agua Fria SRMA as follows:

“Maintaining or increasing the amount of land allocated to open space is one of the most effective ways to preserve existing natural values and recreation opportunities; and to extend new or increased levels of recreation activity in the future. Emphasize semi-primitive motorized settings with roaded-natural along primary routes. Management Actions Establish new trails, parking, and staging areas, where suitable, for hikers, equestrians, mountain bikers, ATVs, and four-wheel-drive enthusiasts.” [21]

Pursuant to the RMP the Black Canyon Trail crosses numerous SRMA designations many of which are expanding motorized on and around the trail.  Given these clear and unequivocal statements of the desired condition for the management of these SRMA, we must question how any of these alternatives can be sustained as we are unable to identify any new trails or other infrastructure in either SRMA  planning area. We are unable to identify any new parking areas or routes that may have been constructed under any Alternative.

The conflict between the RMP and the Proposal continues as the RMP clearly states that additional collaboration with local interests for planning for the future management of the planning area will also occur. This is clearly stated as follows:

“Work with citizen volunteer groups to complete a comprehensive strategy and a trails plan to select and to develop new single-use and multi-use hiking, equestrian, and OHV trails for all lands in the SRMA. Collaborate with the AGFD, Prescott National Forest, Yavapai County, and land managers of other trails to link trails to trails on BLM’s land…”[22]

We are unable to identify any reference or other recognition of this additional engagement and collaboration occurring regarding the planning area. Again, this provision of the RMP is simply never mentioned in the Proposal.  While the specific requirements provided for in the RMP are less than clear on what this specific engagement process may look like, clearly this provision requires more than mere compliance with NEPA requirements. That simply has not occurred.

While there are numerous assertions in the EA that the RMP has been complied with, we are unable to resolve this type of conflict with any factual basis.  As a result of this conflict, we must question how any management could be excluding all motorized based on the RMP as creation of a parallel trail and improving the OHV trail network in the SRMA are characteristics identified in the RMP for the area.

Conclusion.

The Organizations vigorously assert that the Proposal must be withdrawn in order to allow for the creation of a range of alternatives that complies with the recent US Supreme Court decision in the Cowpasture matter, complies with the mandate of the NTSA and relevant RMP provisions for the management of the SRMA. Several of the current alternatives are in direct conflict with case law, statute and the RMP and in our opinion never should have been analyzed.  The Organizations vigorously assert that RMP requirements such as expanding OHV access in the SRMA, reviewing parking and other trailhead facilities and building a motorized trail that parallels the existing route must be addressed in the Proposal and simply have not been.  The RMP further specifies that additional public outreach will occur regarding the future management of the area but we are unable to find any such public engagement even mentioned.  Engagement with Collaborators and other required actions under NEPA is insufficient to comply with these requirements.  Many of the RMP provisions simply have never even been mentioned in the RMP for reasons that remain unclear.

We would welcome any questions you may have and would willingly provide any additional support you may need on this issue.  If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com)  or  Chad Hixon (719-221-8329 / chad@coloradotpa.org).

 

Respectfully Submitted, 

Scott Jones, Esq.
TPA Authorized Rep

Chad Hixon
TPA Executive Director

 

[1] 18-1584 United States Forest Service v. Cowpasture River Preservation Assn. (06/15/2020) (supremecourt.gov)

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

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

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

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

[6] See, US Dept of Interior; Bureau of Recreation; Trails for America; Report on the Nationwide Trail Study; 1966 at pg. 3. (Hereinafter referred to as the “Trails for America report”)

[7] See, Trails for America Report at pg. 21.

[8] See, Trails for America Report at pg. 29.

[9] See,  Trails for America Report at pg. 134.

[10] See, Public Law 90-543 §5(c)(1)

[11] See, HRep 1631 at pg. 3873. A complete copy of HRep 1631 has been enclosed as Exhibit “a”

[12] See, HRep 1631 at pg. 3861.

[13] See, HRep 1631 at pg. 3859.

[14] See, HRep 1631 at pg. 3873.

[15] See, Senate Report with S847 at pg. 2.

[16] See, Department of  Interior; Bureau of Outdoor Recreation; Continental Divide Trail Study Report 1977 at pg. 17.

[17] A copy of this presentation is available here: Introductions – B.L.M Staff (blm.gov)

[18] See, DOI; Bureau of Land Management; Agua Fria National Monument and Bradshaw-Harquahala Proposed RMP and Final EIS; May 2007 at pg. 236.

[19] See, DOI Bureau of Land Management; ROD – ARMP: Bradshaw-Harquahala; April 22, 2010 at pg. 108.

[20] See, DOI Bureau of Land Management; ROD – ARMP: Bradshaw-Harquahala; April 22, 2010 at pg. 179.

[21] See, DOI; Bureau of Land Management; Agua Fria National Monument and Bradshaw-Harquahala Proposed RMP and Final EIS; May 2007 at pg. 141.

[22] See, DOI; Bureau of Land Management; Agua Fria National Monument and Bradshaw-Harquahala Proposed RMP and Final EIS; May 2007 at Pg 142.

Continue Reading

USFWS Wolf Scoping Comments

TPA COHVCO CORE CSA logos

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

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

Dear Sirs:

Please accept this correspondence as the of the above Organizations with regard to the Proposed species status of the Gray Wolf as an experimental non-essential population (“The Proposal”).   Prior to addressing the specific concerns the Organizations have regarding the Proposal, we believe a brief summary of each Organization is needed.  The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization of approximately 250,000 registered OHV users in Colorado seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is a largely volunteer organization whose intention is to be a viable partner, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding.  The TPA acts as an advocate of the sport and takes the necessary action to ensure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite the more than 30,000 winter motorized recreationists across the state to enjoy their passion.  CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport.  For purposes of these comments, TPA, CSA, CORE and COHVCO will be referred to as “the Organizations”.

The Organizations have been actively involved in numerous ESA listing efforts, such as lynx, grey wolves, wolverine and Greater and Gunnison Sage grouse. We have also actively involved in numerous efforts on species management hosted by groups like the US Fish and Wildlife Service, state wildlife agencies and the Western Governors Association efforts on species management.  These efforts have included a wide range of participation includes panelists in round table discussions at events, financially supporting Wolverine research in Idaho to funding development and distribution of the 3rd version of Lynx Conservation Assessment and Strategy. We can vigorously assert that based on our experiences with listed species, discussions on management of the gray wolf will simply never end and this will be litigated multiple times and rewritten equally as many times. The Organizations are also very concerned that despite the success of wolf reintroductions in states adjacent to Colorado and throughout the American west, we are no closer to the delisting of the gray wolf than when we started.  This is disappointing for us but this is also beyond our control.

The Organizations are seeking the broadest and encompassing protections for all recreational access in the 10j designations that is stated in clear and unequivocal language, as after participating in ESA efforts for decades there is always an assertion that motorized recreation is negatively impacting the species.  This continues despite numerous species specific studies being developed and the decline of some species occurring even before motorized recreation was a concept and often impacts to activities like ours are summed up as unintended impacts of the listing. The Organizations submit a wide ranging protection  for recreation would be a significant step towards avoiding unintended consequences of the protection and reintroduction and reflect a decision that is highly solidified in best available science, mainly that recreational access and wolves are basically unrelated.  With wolves in Colorado, the lack of relationship between these activities could not be more stark as the gray wolf was hunted to extinction in the mid-1940s, decades before an off road motorcycle or ATV was ever even a thought.  The Service has provided similar protections around wolverines in Colorado and we would ask for language at least as strong as that previously provided in possible 10j designations for the Wolverines. Similar protections have been provided for the Mexican Gray wolf in Arizona and New Mexico and these protections have not proven to be strong enough, as even with these protections every time there is a planning effort, trails have to be reviewed for the protection of Mexican wolves.

1a. The Organizations welcome the direct involvement of  USFWS in this effort.

The Organizations welcome involvement of USFWS in this effort, as the Colorado Gray Wolf  reintroduction effort has been functioning at a very rapid pace in order to comply with deadlines in Proposition 114.  While we are not seeking to reopen discussions on should the wolf be reintroduced, we are seeking to reintroduce the wolf in a manner consistent with Prop 114 and which makes as much sense for all users as possible. The USFWS clearly has significant expertise and experience in the management of wolves throughout the country and we believe this expertise will create a better management plan for the species and a higher chance of successful management of the species to recovery.  Too often we are seeing groups trying to speak to interests they know nothing about or taking positions that are entirely and irreconcilably conflicted with positions that they have taken in efforts occurring at the same time.  We believe each group should be able to provide input they desire and not be dismissed by other user groups.

While CPW has done a commendable job in public engagement with the TAG (Technical Advisory Group) and SAG (Stakeholder Advisory Groups) and public meetings more generally, we are becoming concerned that recreational concerns around the reintroduction are getting lost in larger discussions. While we understand that long term impacts to recreation may seem remote at this time, it has been our experience that recreational activities in any ESA habitat areas remain an ongoing concern long after a listing or reintroduction. We would like to avoid the more than 20 years of ongoing fighting around recreational activity that continues in discussions around the Canadian Lynx. It is our hope that with the 10j designation that these longer term impacts can be mitigated or avoided completely.

The Organizations believe that the basic model of 10j designation applied for the Mexican Wolf is a good start, we would ask for greater protection of recreational interests in the Colorado 10j effort than has been provided in the Mexican Gray 10j.  It is unfortunate we are aware of numerous issues and discussions around the Mexican Gray habitat areas and acceptable levels of recreation even with the 10j. We would ask that recreational access and management be protected in Colorado habitat as there is no shortage of good habitat for wolves in Colorado.  The same cannot be said for recreational access in many areas.

1b. Inconsistent positions being taken by some interests.

The Organizations believe the unprecedented nature of the wolf reintroduction in Colorado has forced some wildlife advocacy organizations into some enormously conflicting positions between efforts around the wolf and efforts on other issues.  Some of these conflicts could not be more direct in nature on materially factual issues, and these conflicts are occurring within days of each position being taken. The Organizations are concerned that this situation creates the appearance of groups approaching this effort in less than good faith. This gives us pause and concern regarding the scope of 10j protections and has resulted in our comments being conceptual in nature in the hope that whatever input comes in can be balanced with our general concern on the scope of the 10j protections.   The Organizations vigorously asking for extensive protections for all recreational access in the 10j given the lack of good faith that has been displayed by groups to this point.  We have no expectation that good faith efforts will suddenly return to these discussions at some point in the future, but these Organizations will simply continue to display bad faith in the process moving forward and we simply cannot envision where is process may be directed as a result.

An example of the conflicting positions on factually identical questions is exemplified by the Wildearth Guardians assertion that the State of Colorado has too many elk and deer and the reintroduction will return balance in populations to the State as a part of their citizen reintroduction proposal submitted to the CPW Commission in July of 2022.[1]  This is astonishing inconsistent with the general position of WildEarth Guardians, exemplified by the fact WildEarth Guardians is suing the Rio Grande NF asserting the RMP revision did not adequately protect declining populations from possible recreational impacts as filed in November of 2021.[2]   In almost every other effort than the wolf reintroduction we have consistently been told that ungulate populations are on the edge of the cliff of catastrophic decline. These are positions that simply cannot be reconciled and give us concerns about the possibility of unintended consequences of management.

We believe that the current litigation ongoing on the Rio Grande over species and populations is a concrete example of why we are asking for the protections of the 10j Rule for recreation.  The Organizations have been forced to intervene in the litigation of the Rio Grande in defense of claims with the US Forest Service, in Order to provide support, knowledge and resources in the litigation. While we will continue to fight for access, we would also like to think that at some point this type of conflict might come to an end.  While the above example is provided in isolation, we are sure other concerns will be taking unusual positions compared to the historical positions and management to be undertaken. As a result of what could clearly be a lack of good faith by certain interests in the process on basic factual positions, the Organizations would again ask that the 10j Rule be crafted as broadly in scope as possible to protect all recreational access in the efforts subsequent to this. We have no expectation that good faith efforts will return to the wildlife management discussion in the State at any point in the foreseeable future.

2a. Multiple use recreation has been managed for 50 years on public lands.

The Organizations believe that one important component of multiple use recreation must be addressed in these comments as this may be outside the scope of expertise of the Service.  This is the fact that multiple use recreation has been managed for the protection of resources and wildlife on federal public lands for more than 50 years at this point. Management of multiple use recreation commenced on federal public lands with the issuance of Executive Order 11644 by President Richard Nixon on February 8, 1972.[3] Over the next 50 years federal public lands have been intensively managed to minimize possible impacts from multiple use recreation to wildlife.  These decisions have also been some of the most litigated issues on public lands.  No other recreational activity on public lands have seen this level of scrutiny.

As a result of this management, there can be no argument that possible impacts to wolf populations have not been sufficiently addressed with the management of other similar species such as mountain lions, lynx, coyote, fox, badgers, elk, deer and almost every other species that might be relied on for a food source for wolves. We raise this concern as too often managers are still being told that multiple use recreation is unmanaged or is negatively impacting wildlife populations.   Again the 50 years of management of our sport and interests provides a highly credible basis for the protections for recreation in the 10j Rule, as there is an entirely separate process from the ESA listing mandated on public lands to address recreational access. A broadly crafted 10j Rule would streamline the relationship between these efforts and allow recreation to thrive and resources to be protected.

Over the 50 years that have passed since the issuance of EO11644, the Organizations have partnered with CPW, the USFS and BLM to create and manage a one of a kind partnership that is based on the OHV program self-taxing to provide funds for the management of our sport on Federal public lands.  Last year the motorized community provided almost $8 million in direct funding for the maintenance of recreational infrastructure and education of our users regarding the management of their chosen sport.[4]  No other user group has taken this type of aggressive position in the management of their sport and protection of resources.  We are providing this information to demonstrate we have the knowledge and resources to protect species, unlike any other recreation, and that 10j protections will be monitored and effectively implemented.

2b.  Direct and Indirect impacts to recreation from  the wolf reintroduction is a major concern.

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

The lack of relationship between the wolf and recreation  could not be more perfectly exemplified by the fact that every state level wolf management plan recognizes the challenge of managing recreational users on best practices in wolf habitat and none even mention possible negative impacts to wolf habitat or populations from recreation. Do the Organizations support the need for educational materials on recreational behavior in wolf habitat?  Of course, as we believe this type of “Please don’t pet the wildlife” educational material is always valuable as we see too many failures of the public on this standard every year.  We are not discussing this issue in general as we believe it is outside the scope of the 10j discussion.  Recognition of the lack of relationship between recreation and wolves is badly needed to avoid closures of existing recreational opportunities in areas where there may be wolves and in mitigating the challenges clearly identified by the USFWS.

Exceptionally clear statements from USFWS must be made to avoid any impacts to recreational usages of roads and trails from the wolf reintroduction.  The recreational community has too frequently had to fight closures based on management decisions based on the fact a species was seen in the area and have encountered these issues in areas with Lynx.  This occurrence has become so common that we have informally identified this management process as “We saw a lynx” management. The Organizations are aware that one of the challenges that has been consistently identified around the wolverine and lynx are the exceptionally small numbers of these species and limited research materials that are available. While there are more wolves available for research, compared to many other species the wolf population is small. Our social considerations around previous species introductions have been able to be resolved in rulemaking through designations such as experimental non-essential classifications for wolverines and clear statements of the fact there should be no change in forest management from a wolverine being in the areas[5].

The clarity provided around the lack of relationship between wolverine and recreation was addressed in the 2014 listing update  for the Wolverine as follows:

“We find no evidence that winter recreation occurs on such a scale and has effects that cause the DPS to meet the definition of a threatened or endangered species. We continue to conclude that winter recreation, though it likely affects wolverines to some extent, is not a threat to the DPS”[6]

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

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

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

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

Delisting the NRM DPS wolf population has enabled the States, Tribes, National Park Service and Service to implement more efficient, sustainable, and cost-effective wildlife programs that will allow them to maintain a fully recovered wolf population while attempting to minimize conflicts.”[7]

The Organizations believe it is significant that the USFWS clearly identifies that reducing management conflicts are a major concern for the wolf, unlike the 3 criteria that the USFWS normally reviews for possibly listed ESA species. The US Fish and Wildlife Service also clearly states the major concern in wolf habitat with roads is wolves being struck and killed on roadways as follows:

“In this final rule, we refer to road densities reported in the scientific literature because they have been found to be correlated with wolf mortality in some areas. We are not aware of any scientific basis for the concern that lower road densities would substantially reduce prey availability for wolves to the extent that it would impact population viability.”[8]

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

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

“Wolves are not known to demonstrate behavioral aversion to roads. In fact, they readily travel on roads, frequently leaving visible tracks and scat (Singleton 1995). In Minnesota and Wisconsin, wolves have been known to occupy den and rendezvous sites located near logging operations, road construction work, and military maneuvers with no adverse effects [Minnesota Department of Natural Resources (DNR) 2001]. The only concern about road densities stems from the potential for increased accidental human-caused mortalities and illegal killings (Mech et al. 1988, Mech 1989, Boyd-Heger 1997, Pletscher et al. 1997). Although some of the areas within the GYA are administered by the U.S. Forest Service for multiple use purposes and have high road densities, much of the GYA is national parks or wilderness areas that have limited road access and minimal human activity.”[9]

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

“A total of 128 wolves were known to have died in Wyoming during 2016 (Table 1). Causes of mortality included agency removal (n = 113), natural causes (n = 5), other human-caused (n = 5), and unknown (n = 5).”[10]

Given there is no record of any wolf population decline from recreational activity being in the same area in the several states that have decades of high-quality data on the species, the Organizations are requesting that the lack of relationship be clearly and unequivocally stated in any planning documents. Minimizing these types of unintended social consequences from wolf management are already identified as a major management concern by the USFWS and are also exactly the type of social concern that Proposition 114 specifically requires to be addressed.  As a result, the Organizations are seeking this type of clear and unequivocal statement addressing the lack of relationship between trails and recreational and wolf populations to protect existing recreational resources and to allow for development of new recreational facilities in the future.

2c.  Mexican wolf 10j process exemplifies why we are asking for clear and unequivocal protection of recreational access in the Colorado 10j designation.

The Organizations are concerned that once there is an Endangered Species of any kind in any area where multiple use recreation could be occurring in a possible habitat area, possible impacts from recreational activity is always asserted to be a threat to the species. This occurs without scientific basis and is often in direct conflict with the species management planning documents or other resources or the recognition that multiple use recreation has been intensely managed for 50 years by land managers.  For many Organizations, this anti-multiple use recreation mindset simply never goes away and as a result the Organizations are asking for the strongest and clearest language possible stating the lack of a relationship between reintroduced wolves or existing wolves and multiple use recreation in the 10j designation.

Our concerns on this issue not abstract and are exemplified by the Mexican Gray wolf reintroduction and subsequent management, as we have previously mentioned the litigation against the Rio Grande National Forest in Colorado. While the Forest has managed multiple use recreation for 50 years, we are still litigating the fact that management is incomplete or insufficient.  This type of “multiple use is bad” for every species assertion has plagued the Mexican gray wolf reintroduction efforts almost from day 1.  This is exemplified by the following quotes from the most recent revision of the Supplemental EIS for the 10j Rule for the Mexican gray wolf as follows:

“They also noted that State Highway 260 and U.S. Highway 60, which are heavily used, and other state highways, numerous improved roads,  and Forest Service roads, including a road network that provides access to popular recreational spots, such as lakes and streams stocked with sport fish, cut through Zone 1. The SEIS must adequately analyze the effects of wolf interactions with these rapidly expanding human settlements. One cooperating agency expressed a willingness to help the Service with the analysis of potential impacts to the quality of the human environment.”[11]

This multiple use recreation is a threat to species is again raised in the most recent SEIS for the Mexican gray as follows:

“Other commenters claimed that designating the population as essential could enhance wolf conservation since: (1) the consultations that would result would ensure that federal actions (such as permitting livestock grazing on public lands, allowing off-road vehicle recreation, and other federal land activities) would not negatively impact wolf survival; (2) it would allow the Service to designate critical habitat for Mexican wolves; and (3) labeling the population as essential would  no longer suggest that the population is expendable, and this label could heavily influence public perception of wolves and how humans behave towards wolves.”[12]

The Organizations have been highly involved with revisions of RMP on Gila NF, Santa Fe NF and Cibola NF and can say with absolute certainty that similar issues have been raised in these efforts as well.   These are the types of long term challenges around species that are simply not impacted by dispersed recreational activity that we continue to face.  No matter how clearly established the lack of a relationship is between recreation and the species may be, the push continues to exclude recreation from habitat.  As a result of these experiences, we are asking for a broadly targeted clearly defined 10j Rule that protects recreational activity on public lands.

2d.  Wolf impacts on other predator populations, some of which are threatened or endangered.

In our research regarding wolf plans and reintroductions in other states, the impact of reintroduced wolves on populations of threatened or endangered species and general predator populations was significant enough of a concern that Idaho has management standards and discussions of this issue in their plan. [13] We would ask for protection against this type of a management impact to recreational usage in any planning as we can easily envision situations where populations of reintroduced lynx will decline due to increased predation of wolves on the lynx and possible reductions of populations that the lynx and wolf might be feeding on in particular areas.

2e. Unintended impacts from declines in Ungulate populations from wolf reintroductions in Colorado

While the Organizations are aware this concern is more sited to be addressed in the Prop 114 plan CPW is currently developing, the Organizations are very concerned that recreational access will be negatively impacted as herd populations of prey animals decline as a result of introduction of increased wolf populations in the area. Many states and the USFWS recognize these impacts can be severe in local areas.   This indirect concern creates risk of closure of recreational facilities now and in the future if there is a severe impact on any local area.

The Organizations are very concerned that generally declining ungulate populations are frequently cited as a reason to close or restrict recreational access, even when there is a lack of clarity around why the population in a location is declining. This is exemplified by the CPW comments regarding the recent Pike/San Isabel National Forest Travel Plan, where the comments were entirely based on possible impacts or impacts from a wide range of issues, such as residential development or wildfire impacts. Too often herd populations decline for a wide range of issues and easily get blamed on recreational usage, simply because of its visibility.  These are issues that restricting recreational access will never address and the Organizations would like to avoid another layer of discussion around recreational access. The reintroduction of wolves will only compound this type of problem and we would like to avoid this if possible.

The impacts of this type of management issue continue to be significant as the Organizations have spent decades defending USFS travel management decisions on the Pike/San Isabel NF in South Central Colorado from ongoing litigation.[14]  Unfortunately, the PSI travel planning is not the first time we have identified a lack of consensus around declines in herd populations which then gets blamed on trails. The proposed GMUG RMP provides 10 pages of muddled and weak information around herd population declines as result of recreational usage being dispersed across the forest. This analysis continues despite the fact that elk populations in the GMUG NF are estimated to be more than 30% above objectives, deer are 10% below objective as a result of high levels of winter mortality and sheep herds being 25% above goal. CPW then supports the absolutely crushing restriction of only allowing 1 mile of trail per square mile in an attempt to provide protection of habitat, which is explained as follows:

“MA-STND-WLDF-02: To maintain habitat function and provide security habitat for wildlife species by minimizing impacts associated with roads and trails, there shall be no net gain in system routes, both motorized and non-motorized, where the system route density already exceeds 1 linear mile per square mile, within a wildlife management area boundary. Additions of new system routes within wildlife management areas shall not cause the route density in a proposed project’s zone of influence to exceed 1 linear mile per square mile. Within the Flattop Wildlife Management Areas in the Gunnison Ranger District, there shall be no new routes.”[15]

This situation is frustrating to many users of the forest and will be exacerbated by any actual decline in population from the wolf reintroduction.  Clearly ungulate population declines due to wolf predation are going to drive management standards that are only targeting one aspect in a system with many variables such as the one above.  The Organizations also submit that less direct impacts from the wolf reintroduction are exactly the type of issue that the USFWS recently identified as a management priority for the species in the western US. We would like to avoid another layer of confusion in these discussions and leverage the clarity around the fact populations are going to decline.  It should not fall to the recreational community to try and understand a complex multi-faceted system such as this to explain recreational usage and population declines as this will create conflict for the wolf as everyone agrees populations of herd animals will decline.  Clarity around this type of a concern could be provided with aggressive protections for recreation in the 10j Rule and we are asking for this type of clarity.

The Organizations would like to briefly identify the numerous highly credible resources that agree that herd populations will decline as a result of wolves in the area and sometimes at high levels on a localized level of analysis.  While there is extensive scientific discussion around levels of decline in ungulate populations from wolves being introduced, there is also significant consensus on two important points around the wolf impact on herd size.  This consensus is around three facets of the herd animal/wolf relationship mainly that:

  1. Herd sizes will not remain the same;
  2. Herd sizes will not increase; and
  3. Herd animal populations will go down.

While the consensus of the scientific community immediately falters when reasons for landscape levels of decline are attempted to be summarized, this does not impact the consensus that populations will not increase and will not stay the same.  This consensus is very important to the recreational community and to the clarity needed to protect recreational access and again would be a significant step in reducing a major challenge that the USFWS has identified in wolf management in other states.  The complexity of understanding why ungulate populations is declining in wolf habitat was exemplified in the recent Montana recommendations for wolf management, which provide as follows:

“We recommend that wildlife managers seeking to balance carnivore and ungulate population objectives design rigorous carnivore and ungulate population monitoring programs to assess the effects of harvest management programs. Assessing and understanding effects of carnivore harvest management programs will help to set realistic expectations regarding the effects of management programs on carnivore and ungulate populations and allow managers to better design programs to meet desired carnivore and ungulate population objectives.” [16]

While there is significant controversy around how much of a decline will occur at the landscape, the Organizations prefer to base our concerns on this issue on scientific certainty.  Credible researchers are unanimous in concluding populations of herd animals will not stay the same and also will not increase at the landscape level. While landscape research around specific levels of population decline for ungulates can been difficult, we believe it is significant to note that Idaho Fish and Game estimates there is between a 4 and 6% decline in elk populations from wolf predation. [17]   This level of landscape population decline in herd animals will cause significant concern and possible impacts to recreational access.

The Organizations do not contest that landscape level impacts can be complex to analyze, localized severe population declines are frequently identified in other states. This type of localized impact was recently discussed in depth by the US Fish and Wildlife Service as follows:

“However, we acknowledge that, in some localized areas, wolves may be a significant factor in observed big game population declines, which could result in reduced allocation of hunting licenses and reduced revenue for both local communities and State wildlife agencies.” [18]

These types of concerns being addressed with this level of detail make the Organizations believe these issues are consistently occurring and sometimes at significant levels. The detail is not provided because impacts are not occurring as that conclusion would be entirely irrational. The Idaho Fish and Game Service has also summarized this concern as follows:

“Temporary reductions in predator populations, by removing those wolves affecting the big game population, may be needed to assist in restoration of prey populations in conjunction with habitat management (Kunkel and Pletscher 2001).” [19]

Clearly in areas where wolves are possibly in need of removal to restore ungulate populations, protections of recreational access will be critically important in avoiding social impacts and lost recreational access. We are asking for this type of recognition before the wolves are even on the ground to avoid social and economic conflicts that clearly are occurring in these areas. It should not fall to the recreational community to resolve questions unrelated to our interests  simply to protect our interest.

Protections such those targeting herd population declines are very important to mitigating impacts to recreation from these declines, as almost every CPW herd management plan we have ever reviewed is projecting that populations will stay roughly the same or possibly increase.  This is really no longer possible with wolves on the landscape and the recreational users would like a clear and unequivocal statement that populations will not increase or stay the same in order to avoid would base population declines being erroneously asserted to be the result of recreational activity in the same planning area. Additionally, localized herd size impacts have been raised as a management concern for both the USFWS and Idaho Parks and Recreation.  These are major concerns that we would like protections against and we would ask for a broadly targeted, clearly worded 10j Rule that protects all forms of recreation.

3. Mexican or gray wolf populations for reintroduction under Proposition 114.

The Organizations are very concerned that there has been a consistent stated desire from many interests to re-establish a wolf population from Canada to Mexico.  We simply have no idea where this goal even came from but must express some concern over this type of goal. Clearly this is well outside the scope of Proposition 114, which causes us significant concern. We are opposed to this type of action even being arguably a goal of any reintroduction given its hugely subjective nature and objectives. We are also deeply concerned about the presence of two ESA species being reintroduced in Colorado.  This would simply create a management nightmare for everyone involved. Again, we believe that this is outside the scope of the 10j Rule, but we believe this is an important issue for full understanding of the climate we are asking for 10j protections in.

We are also deeply opposed to any reintroduction of Mexican gray wolves in Colorado under Proposition 114 and would ask that the 10j designation be limited to gray wolves only to avoid this discussion. Best available science has express significant concern over the connection of the Mexican and greater gray wolf populations as follows:

“If Northwestern wolves come to occupy Mexican wolf recovery areas, these physically larger wolves are likely to dominate smaller Mexican wolves and quickly occupy breeding positions, as will their hybrid offspring. Hybrid population(s) thus derived will not contribute towards recovery because they will significantly threaten integrity of the listed entity. Directing Mexican wolf recovery northward outside historical range threatens the genetic integrity and recovery of the subspecies, is inconsistent with the current 10(j) regulations under the ESA, is unnecessary because large tracts of suitable habitat exist within historical range, is inconsistent with the concepts of restoration ecology, and disregards unique characteristics for which the Mexican wolf remains listed.” [20]

This situation would immediately be created with the reintroduction of gray wolves and Mexican gray wolves in the same general geographic areas as some are proposing. Why do we mention this concern?  The Organizations believe the reintroduction of the two species in southern Colorado would simply create a management nightmare for everyone involved and preclude almost any functional benefit from the 10j designation and other protections in place under Proposition 114. These protections are critically important to other users of these lands.

We are also concerned about impacts of gray wolves in Arizona and New Mexico as best available science concludes that the gray wolves simply outperform the Mexican Gray wolf in almost every aspect of existence.  We are also concerned about the loss of recreational access to Mexican gray wolf habitat in Arizona and New Mexico due to this type of impact as many of our members ride here as well.

4a. Economic costs of reintroduction have been horribly underestimated to date.

There can be no argument that the passage of Proposition 114  was unprecedented in many ways, ranging from the reintroduction of species based on a ballot initiative to working on the aggressive timeframe required by Prop 114.  The unprecedented nature of Proposition 114 has created a wide range of challenges which has been compounded with a lack of information on many of these challenges. One of the areas where there is a critical lack of information from other efforts is information around costs for the effort. While we are aware that costs are most directly an issue for CPW and the State of Colorado, the Organizations are concerned that the experiences with costs of the reintroduction are highly relevant to the 10j designation and process.

The scale of the consistent underestimation of costs for the reintroduction has been significant to date.  Originally the Colorado Legislative Services estimated costs to be well under $1 million totally and only $346,000 for the first year by Colorado Legislative Services. [21] This estimate has proven to be overly optimistic as costs are currently estimated to be almost $3 million this year alone. The comical underestimate of costs for the reintroduction of the gray wolf is also exemplified by the costs incurred by the most recent update of the Mexican Gray Environmental Impact Statement which is identified as follows:

“Estimated Lead Agency Costs Associated with Developing and Producing this FSEIS $363,350” [22]

It goes without stating that the cost of a single SEIS for a reintroduced species being functionally the same as estimated total costs of a reintroduction causes great concern for the accuracy of any estimates for the total costs.

As the reintroduction effort progresses,  the Organizations have to believe that litigation of many aspects of the reintroduction will be a massive and ongoing issue.  While we cannot estimate these costs accurately at this time given the huge number of variables, we can say from our experiences is the fact that litigation is expensive and could easily significantly increase the costs.

The Organizations also must recognize the current general economic conditions in the country, both from the possibility of a recession looming and also the large amount of federal stimulus money currently available to states. We simply do not expect the large amount of stimulus money to be available at current levels for long and are unwilling to say our outlook for the economy in the next several years was optimistic.

The Organizations must also address the current financial outlook for CPW generally. While the Organizations are aware that funding for the wolf reintroduction was now required to be funded by State General funds rather than CPW funds with the passage of Senate Bill 21-105, this funding is certainly not a bottomless source of funding.  CPW camping reservations processes was recently audited by the State Auditor and the conclusion of the audit was eye opening to say the least.  This audit found that CPW wildlife efforts were expected to lose $30 million annually and Colorado Parks was expected to lose another $10 million annually by 2025.[23] Given the constricting nature of this funding and introduction of many new competing interests in the discussions, we believe that interests outside the wolf reintroduction will become more important.

The Organizations are asking for as much flexibility around any assumptions or forecasts for costs in the 10j Rule as possible to allow for changes in costs to undertake any effort and possible limitations in funding becoming available.

4b.  Economic contributions of recreation to the planning area.

The Organizations are very concerned around the possible negative economic impacts that could result from the gray wolf reintroduction, not only from recreational related impacts but also the possible impacts to other activities as well.  Too many of our small communities’ struggle to provide even basic services to their residents and tourists visiting the areas. Without a well-rounded economic engine for the community, the community will struggle and possibly fail and this will degrade the recreational opportunities and support for them from the community and this is a concern for the Organizations.  The Organizations are very concerned that there have been numerous assertions that completely overestimate the economic contribution of the reintroduction by merely asserting that all recreation is occurring in the State as a result of the reintroduction.  That entirely lacks factual basis.

Proposition 114 clearly identifies those economic considerations are to be mitigated in the collaborative efforts around the wolf reintroduction. CPW own conclusions on the economic contributions of outdoor recreation in the state of Colorado, clearly identified as a consideration to be mitigated in planning under Prop 114, are as follows:

“Focusing on the state-level results below, the total economic output associated with outdoor recreation amounts to $62.5 billion dollars, contributing $35.0 billion dollars to the Gross Domestic Product of the state. This economic activity supports over 511,000 jobs in the state, which represents 18.7% of the entire labor force in Colorado and produces $21.4 billion dollars in salaries and wages. In addition, this output contributes $9.4 billion dollars in local, state and federal tax revenue.” [24]

The Organizations submit that more than $62.5 Billion Dollars of economic contribution that results in 18.7% of the entire labor force is an economic concern to warrant specific recognition of recreation in Stakeholder Advisory Groups, both now and in the future.  Any assertion that such a massive economic contribution is insufficient to warrant inclusion in wolf stakeholder discussions simply lacks any factual basis. It is highly frustrating to open collaborations when contributions such as this are not worthy of recognition in the stakeholder advisory group. This type of arbitrary resolution of considerations will cause concern and frustration from the public generally, and our members more specifically, as the wolf reintroduction moves forward. We simply must do better than this in the future and we must do better than this in the development of the Plan required under Proposition 114.

4c.  Economic contributions of wolf tourism are almost non-existent.

Under ESA processes for habitat designations and under Prop 114 planners are required to address economic impacts of decisions around the reintroduction of the wolves in the ecosystem.  While this is probably technically outside the scope of the 10j Rule, we again believe these issues are highly relevant to understanding the climate the 10j Rule is being developed under.  Too often we are hearing comical assertions that wolves will drive eco-tourism and related economic impacts will simply flow from the reintroduction to local communities.[25] That is simply without factual basis and almost all research we have seen has been hugely generalized and overly broad.

The lack of factual basis of these assertions is exhibited by the fact that wolves were reintroduced into the Yellowstone Park about the same time as snowmobile closures were undertaken in the park.  The value of recreation to these local communities is well demonstrated prior to the Yellowstone closures for snowmobiles.[26] While wolves have been on the landscape and easily seen in the winter, tax revenues and jobs from winter recreation in the Yellowstone Park remain only a small fraction of the previous levels.  People simply are not visiting these areas to view wolves  in sufficient numbers to offset visitation lost from more generalized recreation.  This is highly relevant to this discussion as tourists are not going to Colorado primarily to see wolves, if you are skiing at steamboat or vail your decision is driven by a desire to ski not see wolves.  This reintroduction will not generate revenues and the 10j Rule must be founded on this factual conclusion.

4d. Compensation to all interests for financial loss from wolf predation.

We vigorously support full compensation for agricultural interests for impacts from all wolves in the State. The 10j Rule should not be a barrier to reimbursement of these losses but should streamline these types of compensation in any manner possible.

5. Populations goals Mexican wolf populations only have a target of 100 for success.[27]

The Organizations submits that the inclusion of a population objective for the wolf is critically important to the plan development.  While this goal is important to the entire effort, there is a wide range of opinions on this issue, which range from only 2 or 4 wolves being reintroduced to hundreds of wolves being reintroduced.  These differing levels of goal will have significant impacts on many facets of the reintroduction.  This goal is also highly relevant to the scope of protection provided for activities under the 10j Rule and the Rule must be flexible enough to address whatever population goals are finally settled on.  It has been the Organizations experience that often the desire to always want more of a particular species is controlling in the listing process rather than true science-based management objectives.

It has been the Organizations experience that often target populations, and the scientific basis for these goals, are sometimes discussed when either listing was avoided or listing of a species on the ESA list occurred are dimmed with the passage of time.   Often there are delays between initial decisions on a species and subsequent review of the decision and as a result participant in the original listing are no longer available or memories have been dimmed. With the passage of time, assertions of always needing more of a particular species never seem to dim or lose steam, making any position that species population goals being achieved difficult if not impossible to support.  Always wanting more of a species simply creates social conflict and we submit this must be mitigated with the inclusion of a hard population goal for conclusion of the reintroduction must be done. Based on the experiences of the states around Colorado, this type of a tool will be needed far sooner than anyone anticipates at this point.

The USFWS has established very minimal population goals for the reintroductions of gray wolves, which they have summarized as follows:

“In our 1994, EIS for the reintroduction of gray wolves to Yellowstone National Park and Central Idaho, we defined a wolf population as follows: ”A wolf population is at least 2 breeding pairs of wild wolves successfully raising at least 2 young each year (until December 31 of the year of their birth), for 2 consecutive years in an experimental area.”

By comparison CPW declared a successful Lynx reintroduction after 200 cats.  The Organizations vigorously assert that the 10j Rule must be sufficiently broad in scope to address and mitigate impacts of the wolf reintroduction regardless of population goals that are finally established.  These protections must be clearly stated in order to avoid unintended consequences from the reintroduction.

6. Wildlife Reguges and State Wildlife Areas should be priority locations of reintroductions and scope of 10j rule.

The Organizations are attempting to identify significant concerns around the wolf reintroduction and locations for reintroduction is another issue outside the direct scope of the 10j Rule but remains an important concern for our interests.  While many are generally socially based, these social considerations could have serious economic impacts as well.  Given the overlap of these categories for protection under Proposition 114 we are not going to break them down further as each are identified for protection.   The Organizations vigorously assert all programmatic protections must apply to all wolves in the state, regardless of Prop 114 requirements that only reintroduced west of Continental Divide. It has been our experience that species will travel long distances after being reintroduced and wolves are no exception. Wolves have already been identified in areas, such as North Park, that are outside the areas where wolves are to be reintroduced under Prop 114.

Wolves appear to travel even longer distances than species the average Coloradan may be familiar with.   This is exemplified by the fact that Nebraska Parks and Wildlife recently concluded that two wolves were killed in separate events in the last 18 months.  The first being killed outside Uehling, Nebraska.  This news was astonishing as most expected with wolf to be associated with the Yellowstone population, but this story was even more astonishing as the wolf was from the Great Lakes Population.[28] The second wolf followed a similar fact patter and was killed outside Bassett Nebraska [29] Given the clear history of wolves traveling long distances, the Organizations believe that any clarity in the management plan being developed must apply to all wolves, regardless of where they came from or their genetic makeup.

While the Organizations are aware that wolves will end up in almost every corner of the State of Colorado as a result of the reintroduction, we still vigorously support only reintroduction on the Western Slope of Colorado.  We are vigorously opposed to any reintroduction of the species east of the Continental Divide, as we are aware that population concentrations are lower in these areas of the State.  We believe that lower population concentrations will reduce the possibility of wolf/human/pets conflicts and these lower levels of concentrations will allow for the development of more effective educational materials and messaging.  We are aware that several interests have proposed reintroducing wolves in Rocky Mtn National Park.  In our opinion, this would be a horrible location given the huge concentrations of tourists in this area.  Upon a more complete review of the reintroduction is the fact that the reintroduction is the fact much of the habitat identified is outside the Park.

We are aware of discussions on other locations for reintroduction.  We believe these reintroduction sites should be rather small in number as we do not support reintroducing hundreds of wolves.  We also believe that any reintroduction should be occurring as far from areas of human population as possible, and this includes even temporary population centers due to recreational activities and other activities on public lands. We are also aware that numerous National Recreation Areas and National Conservation Areas.  While we are not opposed to these areas but would ask that any NRA/NCA designations where the criteria for designation does not align with the wolf reintroduction be removed from the list of possible locations for the reintroductions.  The Organizations submit that areas such as National Wildlife Refuges and State Wildlife Areas should be prioritized for this type of activity.  It is their reason for existing.

7. Conclusions.

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

The Organizations are seeking the broadest and encompassing protections for all recreational access in the 10j designations that is stated in clear and unequivocal language, as after participating in ESA efforts for decades there is always an assertion that motorized recreation is negatively impacting the species.  This continues despite numerous species specific studies being developed and the decline of some species occurring even before motorized recreation was a concept and often impacts to activities like ours are summed up as unintended impacts of the listing.

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

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

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
TPA Executive Director

Marcus Trusty
President – CORE

 

[1] See, Wildearth Guardians webinar at 5 minutes of  1hr 3 minute webinar.  A complete copy of this webinar is available for viewing here: Colorado Wolf Restoration Plan webinar – YouTube

[2] See, SAN LUIS VALLEY ECOSYSTEM COUNCIL, SAN JUAN CITIZENS ALLIANCE, THE WILDERNESS SOCIETY, and WILDEARTH GUARDIANS, Petitioners vs. DAN DALLAS; and UNITED STATES FOREST SERVICE; IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO; Civil Action No. 1:21-cv-2994

[3] A complete copy of this Order is available here: Executive Orders | National Archives

[4] More information on the CPW Motorized Trail Program is available here: Colorado Parks & Wildlife – Off-Highway Vehicle (OHV) Program (state.co.us)

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

[6] 47532 Federal Register / Vol. 79, No. 156 / Wednesday, August 13, 2014 / Proposed Rules

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

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

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

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

[11] See, DOI USFWS Mexican Gray Wolf; Supplemental Environmental Impact Statement for the Experimental nonessential designation of the Mexican gray Wolf; 2022 at pg. 192.

[12] See, Mexican Gray Wolf SEIS at pg. 195.

[13] See, Idaho Fish and Game; 2002 Wolf Plan at pg. 16 of 32.

[14] See, THE WILDERNESS SOCIETY et al. v. UNITED STATES FOREST SERVICE et al Civil Action No. 11-cv-246-JLK-AP DISTRICT COURT FOR THE DISTRICT OF COLORADO

[15] See, USDA Forest Service, GMUG National Forest; Draft Revised Forest Management plan; August 2021 at pg. 93.

[16] See, Proffitt Et Al; Integrated Carnivore‐Ungulate Management: A Case Study in West‐Central Montana;  Wildlife Monographs June 2020.

[17] See, Idaho Fish and Game; 2017 Statewide Report – Wolf; 2017 at pg. 8.

[18] See, DOI; US Fish and Wildlife Service; Endangered and threatened wildlife and plants; removing the gray wolf from the list of Endangered and Threatened Wildlife; Federal Register Vol 85 No 213 at pg. 69868.

[19] See, Idaho Fish and Game; 2002 Wolf Plan at pg. 21 of 32.

[20] See, Odell et al; Perils of recovering the Mexican wolf outside of its historical range; Biological Conservation 220 (2018)

[21] Legislative council memo for prop114

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

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

[24] See, CPW 2017 Statewide Comprehensive Outdoor Recreation Plan:  Appendix F Pg. 111. Dated July 23, 2018.

[25] The Economic Benefits and Struggles of Wolves in Yellowstone | Good Nature Travel Blog (nathab.com)

[26] See, Taylor et al; Economic Importance of the Winter Season to Park County, Wyoming,  May 1999.

[27] See, DOI; US Fish and Wildlife Service; Endangered and Threatened Wildlife and Plants; Endangered Status for the Mexican Wolf and Regulations for the Nonessential Experimental Population of the Mexican Wolf; Final Rules Federal Register /Vol. 80, No. 11 / Friday, January 16, 2015.

[28] See,  Nebraska Parks and Wildlife; April 14, 2021.  A complete version of this article is available here Gray wolf confirmed in Nebraska • Nebraskaland Magazine (outdoornebraska.gov)

[29] Wolf killed north of Fremont is the second in Nebraska since November | Nebraska News | journalstar.com

Continue Reading

2022 COHVCO Legislative UPDATE

COHVCO logo

Colorado General Assembly 2022 Session Legislative Report

This year the session was distinguished by four key issues impacting the OHV, snowmobile and 4wd communities. The issues include: Colorado Rule 20 and adoption of the California Air Resources Board’s standards for vehicle emissions; reduction in theft of catalytic converters (cats); Reduction in mobile and stationary emissions in general; attempts by the legislature to take wildlife and natural resources management out of the hands of the Department of Natural Resources and place it in the hands of legislators or a commission comprised of academics and scientist with little accountability to anyone, particularly the public.

The first major category of bills was targeting adoption of the California Air Resources Board’s LEV III and ZEV Emissions standards (these standards can be found in the attached Colorado Rule 20). LEV, Low Emission Vehicles and ZEV, Zero Emission Vehicles.

The second issue dealt with addressing the monumental increase in the theft of catalytic converters and taking various measures to dramatically reduce theft. This approach uses different strategies to curb theft due to the value of precious metals in catalytic converters.

The third issue included identifying areas of higher than normal emissions, then taking whatever measures would be necessary to reduce that level to reach federal compliance. This includes both mobile and stationary sources.

Finally, the environmental pressure being placed on legislators to remove state government from resource management and place it in the hands of others poses a nightmarish scenario as you will understand when you are introduced to the bills.

The first subcategory included implementation of the California Air Resources Board emissions standards, LEVIII and ZEV, (a result of a Hickenlooper Executive Order issued his last year in office), including use of only CA approved aftermarket catalytic converters. Note: these standards do not apply to motorcycles, OHVs and snowmobiles. They apply to autos and light trucks, 8500lbs or less. However, vehicles not covered by LEV and ZEV must still meet EPA emission standards

It should be noted up front that owners of LEVIII vehicles may no longer purchase own or install a used catalytic converter and neither can repair shops except for repairs requiring removal of the cat. Included in this approach to cleaner air, Colorado’s antitampering statute was beefed up as was the responsibility of a seller of a motor vehicle to protect the buyer by making sure the emissions system was not tampered with. This applies to dealers and private parties. Again motorcycles, OHVs and snowmobiles are exempt.

The CA law was first mentioned in an Executive Order issued by Hickenlooper with a deadline of October 21, 2021, for the promulgation of a rule containing LEVIII and ZEV standards by the Colorado Department of Health and the Environment. This was issued as Rule 20 and is attached to this email. Tremendous opposition was delivered by many interested parties to adopting CA standards, but no way to stop it. Currently 13 other states including CO have adopted CA standards.

The second major topic involved steps by the General Assembly addressing an alleged 5000% increase in the past ten years in the theft of catalytic converters for their precious

Metal—numbers provided by the State Patrol. These precious metals are 3 members of the Platinum metals group: rhodium, palladium and platinum to be exact.

Cats do not contain massive amounts of these metals, but there is no need, the current spot price of rhodium is $13,000 per ounce, down from $21,000 an ounce 3 months ago. Considering an EPA cat can bring about $350 from the metals and the CA cat about $700 to $800 for recycling there is no need to say more.

One approach to curtailing theft is a change in how precious metals are sold or otherwise disposed of. Generally, stricter identification of individuals selling these metals to recyclers is now required. Also, there is a prohibition on installing a used cat on a vehicle unless it is part of repair work, and the cat was already on the vehicle. Advertising or selling a used cat is also prohibited. However, one question I inquired about is why can’t someone steal them and take them to another state without such laws and sell them?

The third category was comprised of a few bills attempting to identify areas of the state with higher levels of emissions than others. In other words, the environmentalist approach to curbing many fossil fuel activities on their hit list as the bills, of course, required mitigation by most any means available. One can imagine front range trails use by vehicles, and an appeal by the state if these bills passed to curb such trail use.

The fourth major category included an effort to begin to strip the Colorado Department of natural Resources of its authority to manage everything from trails to wildlife to water and place it in the hands of either the General Assembly or, more detrimentally, a commission of handpicked academics and scientists with little or no responsibility to the public. This last draft bill almost made it to introduction. It was perhaps the most dangerous bill I have ever seen to destroy recreation considering one of the major attack points in the bill was recreation destroying the ability of the environment to rebound or accommodate climate change. Unbelievable!

This was a terrible session, primarily because legislators from the majority party did not work together nor closely with the Department of Health, so legislation duplicated itself and even contradicted itself. Few bills looked like they did when they were introduced.

Bills that were Lost (postponed indefinitely)

SB22-031 Prohibition on the Hunting of the 3 Wild Cats found in Colorado, Cougars, Bobcats and Lynx. Another effort to take the management of wildlife away from the Division and encourage legislators with little to no experience to make decisions on natural resources they may not be qualified to make. In fact, the Division of Wildlife stated the populations were stable and hunting was necessary to meet stabilized populations. This is a step in the direction of the next draft bill that was, courtesy of the environmentalists.

Bill Drafted, but not introduced. It is no secret that the environmentalists want the management of natural resources of Colorado taken from government and placed in the hands of private environmental scientists and activists. This proposed bill I refer to hands all recommendations for resource management in the state to an 11 member advisory committee with no oversight, although they will be making decisions to be followed by state government managing all resources for protection of biodiversity and climate change ecology.

There should be enough nasty buzz words in the proposed title, for protection of biodiversity and climate change ecology, to terrify recreationists and the draft bill proves it. No recreationists, no resource users, no water interests would be represented on the committee let alone commodities. The draft considers unmanaged recreation one of the gravest threats to the bill’s claim of protection.

(2) THE CLIMATE RESILIENCE AND WILDLIFE CONSERVATION STRATEGY MUST:
(a) SPECIFICALLY ADDRESS THE FOLLOWING THREATS TO THE 12 STATE’S ECOSYSTEMS:
(V) UNMANAGED OR POORLY MANAGED RECREATION.

Suddenly, if the eleven member committee decides the area is poorly managed, they act. What is so diabolical is the shift from a far more objective standard—no management, to the incredibly subjective standard—poorly managed. The bill is sixteen pages of mind control. You should know the word “mitigation” appears nowhere in the bill.

SB22-082 Addressing the Geographical Areas with the Greatest Concentration of Air Pollutants that affect Human Health. This bill would have allowed the department of public health and the environment to use EPA air quality data to identify geographical areas in which hazardous air pollutants have the greatest negative effects on human health and then to propose a rule to the air quality commission to address pollutant levels in these areas.

So broad in language that the rule could include almost any mitigation actions. Surely front range counties would be hit hard. OHV use could easily be targeted. (Rampart Range)

SB22-138 This bill was intended to phase out all gas powered lawn and garden equipment or what California refers to as small off-road engines. It was never made clear if the sponsors understood that CA does not include off-highway vehicles in this category Well CA does not include OHVs in this category. Nevertheless, it left the definition of SORE to the Colorado Air Quality Control Commission to define. There was considerable concern about the definition used by the sponsors which did not match the CA limit of 10hp. Colorado used a maximum of 50 hp It was amended but died on the floor of the Senate.

Implementing California LEVIII and ZEV Emissions Standards

SB22-179 Concerning Measures to Address Tampering with a Motor Vehicle’s Emission. The original bill required anyone selling renting or leasing a motorcycle that has a tampered emissions system to bear an undue burden in creating a valid transaction of sale. Unfortunately for private parties and dealers buying and selling motorcycles with MV titles, either from the factory or after conversion of a pure dirtbike to a MV, the original bill as drafted made it almost impossible for a private party or a motorcycle dealer to feel secure selling a titled motorcycle. As the motorcycle could be retuned at any time.

Cars and light trucks are also included in the bill as it broadly addresses motor vehicles. Autos and light trucks have been required to meet front range Aircare Colorado emission standards for many years. Street bikes are not required to and we have made sure that when they have been included, they were removed. In a very complicated manner this legislation would become a backdoor attempt to force testing motorcycles for emissions tampering but make it almost impossible to test them or very costly. There are very serious consequences for anyone selling a motor vehicle with a tampered emissions system if:

The person knew or, through the exercise of reasonable care, should have known that the emission control system was tampered with.

Unfortunately, “reasonable care’ goes undefined if and until the state promulgates a rule telling you what reasonable care means. How do you know how to protect yourself when you sell whether a private party or dealer, from having the buyer go after you? For example, does it mean getting an emissions test at a testing station along the front range Aircare Colorado counties? Does it mean you can take the motor vehicle to a dealer that has the proprietary equipment and software for your brand make of motor vehicle? Can you have a garage mechanic “look it over?”

Let’s just say that reasonable care means obtaining a certificate that you passed the Aircare emissions test or the printout from your auto dealer showing a receipt and the printout that all is well with the emissions system. However, motorcycle sales leave the seller with a real dilemma. Motorcycles are not required to be tested in the Aircare Colorado program as the cost for testing is exorbitant to the testing company and the motorcycle owner and the emissions contribution is minimal. Even CA currently does not require that motorcycles be emissions tested.

Motor vehicle dealers do get a special process given the volume of what they sell. A buyer has 5 days from the date of sale to go back to the dealer if an emissions test shows the emissions system has been tampered with. The dealer can return the purchaser’s money when they return the car, if they wish to keep the car the dealer can offer to repair it or the buyer may go to an outside garage for repairs and reimbursement. Dealers have the discretion to pick which option.

Unfortunately, even if “reasonable care” is later defined by the state, motorcycle sellers and buyers cannot avail themselves of that option to determine if what they are selling has ever been tampered with. As mentioned, there is no Aircare test for a motorcycle. In areas outside the Aircare counties, it is possible a rule will allow motorcycle dealer testing. But again, a Chevy dealer is much, much easier to find in central Colorado outside the Aircare counties than an Aprilia, Triumph or even Honda motorcycle dealer.

Until the U.S has uniform OBD ports and testing like Europe so any motorcycle dealer can check any motorcycle brand, private sellers and dealers will be running around hauling motorcycles to find an Aprilia dealer if they live in Meeker before they sell a motorcycle. The results will often be traveling many miles to a franchised dealer of that brand make for testing and it won’t be cheap. You have travel and testing costs, and sellers will add those costs to the sale.

Equally as problematic, there is nothing in the statute on the private seller’s obligations to correct the problem whether it is an auto or a motorcycle. It is reasonable to believe that a private seller could face legal action anytime the problem is discovered by the buyer or under the 3 year statute of limitations to sue for breach of contract. That is just not right. It is a colossal undue burden on any private seller or dealer of a motorcycles.

This bill would have put motorcycle dealers and therefore their customers in an incredibly difficult position and at serious odds. Since both buyers and sellers are punished with fines for violations and dealers additionally, having to go before the Dealer Licensing Board for a violation of the proposed bill, risking more fines and possible suspension or revocation of their license, how can this not be classified as an undue burden?

As mentioned for years CA has not required emissions testing for motorcycles newer than 1976. So, we also would have had the problem of litigation costs trying to prove in court that Colorado had violated Section 177 of the Clean Air Act as our only remedy if the legislature refused to address the problem.

So, after a 3 month battle with the Attorney General’s Office, Legislative legal Services and the sponsors, they finally “got it” and removed motorcycles from the bill as we had long ago requested.

Motorcycles will continue to remain under the existing EPA antitampering statute in place for decades not the new and “better” Colorado antitampering statute.

On a final note, we pointed out to the proponents that they made no accommodation in the bill for vehicle repairs. That removing any emissions device or component was illegal in the original bill even for repair purposes. Takes effect in August 2022.

SB22-009 Concerning Catalytic Converters and in Connection therewith, Enacting Measures to Address the Theft of Catalytic Converters. Addresses recyclers, junkyards and any wholesale purchaser of precious metals from a cat (except dealers) to take certain measures to identify and catalogue their sellers to be identified by photo, license plate, name etc. Description of the vehicle the cat is from is also required. Essentially a registration book on sellers to catch stolen cats in the process of selling them or their precious metals is required. Motor vehicle dealers were removed from these requirements upon request of PDAC.

The public still is required to provide their identifying information when selling a used detached cat or its metals to one of the entities described.

The original bill had serious problems. Again, after much discussion, it was explained that if a shop or private party removes a catalytic converter to repair another component of the motorcycle (or car or truck), the reinstallation was made illegal (no difference in install or reinstall). This was fixed and cats are now referred to for this legislation as “detached cats.”

Also adds additional penalties to chop shops for theft of catalytic converters. Takes effect immediately

HB22-1217 Concerning Measures to prevent Catalytic Converter Theft, and, in Connection therewith, Making an Appropriation. State Patrol is to create a form that the purchasers of converters and the platinum metals group metals must fill out with information regarding the sellers, much like the registration or journal required of recyclers and junkyards in SB22-009 to be reviewed annually by the State Patrol.

Creates a theft prevention authority within the State Patrol. Creates grants for public awareness of cat thefts, financial assistance to individuals who have had their cats stolen for replacement purposes (now you can see why we argued to make sure the more abundant and less expensive cats be made available. Takes effect immediately.

Other Legislation that Passed

HB22-1388 Changes Ownership tax laws on MVs. An owner of an inoperable vehicle that is not driven on roadways and is undergoing maintenance, repair, restoration, rebuilding renovation shall pay the annual specific ownership tax on the vehicle. Inoperable is defined as a vehicle that is not roadworthy. Upon payment of the specific ownership tax of an inoperable vehicle an owner may store the vehicle for the purposes on private property that is undergoing the above maintenance, repair restoration etc. Ten dollar late fee for any vehicle for which the owner is late in paying ownership tax. Utility and multipurpose trailers are added to the prohibition of transfer of plates upon ownership transfer.

Authorized special 150 year anniversary of Colorado statehood.

For bond titles repeals the requirement that the applicant for certificate of title for a motor vehicle or OHV obtain a lienholder certified copy. Also removes language that says that vehicle lien filings are public records.

Upon payment or discharge of the undertaking secured by a mortgage on a MV or OHV the lienholder shall include in the notice of satisfaction and release a signed affirmation that contains or is accompanied by a notarized declaration (new language) or a written declaration under penalty of perjury.

Upon filing with the director OR AUTHORIZED AGENT an application for a certificate of title, a motor or off-highway vehicle dealer who applies to receive a certificate of title (within one working day has been struck) shall pay a fee of $25

If a collectors item, street rod vehicle, or horseless carriage is 25 years old or older the applicant has had a certified vehicle identification number inspection performed on the vehicle, and the applicant presents a notarized (notarized has been struck no longer required) bill of sale within twenty-four months after the sale with the title application, then the applicant need not furnish surety under section 42-6-115 (3). To be excepted from the surety requirement, an applicant shall submit to the department a sworn affidavit, under penalty of perjury, stating that the required documents submitted are true and correct. Some portions become effective this August 2022 others on January 1, 2023. Revenue will notify dealers.

SB22-168 Concerning Support for Back Country Search and Rescue. It is a wonder that Colorado was able to find volunteers for search and rescue. The funding was beyond a joke. The sheriffs could not reimburse S&R volunteers any expenses like gas or food. There was no statutory liability protection for search and rescue volunteers. They now have limited immunity. Also Search and Rescue volunteers get disability and families can get death benefits.

Also, it allows the parks and Wildlife Commission to increase the $.25 search and rescue fees that have not increased in decades. You see it on the Vessel, OHV, and snowmobile registrations. And hunters and anglers also pay. Considering it is OHV and snowmobile riders who are a huge part of search and rescue it is about time to compensate them for expenses and fund them. No one, however, receives compensation, they remain volunteers.

Also, after Jan. 1, 2023, Parks and Wildlife will administer the program not the Department of Local Affairs. Some provisions take effect now and some in August.

HB22-1104 Encouraging Recreational Trails in Public and Private transmission Corridors

Motorized vehicles are not included in this bill, nor did we make any effort to have it amended. This bill was hated by ranchers, farmers, power companies and other private landowners. It became so watered down that do not look for nonmotorized powerline trails showing up anytime soon. Effective immediately. Becomes effective immediately.

HB22-1046 Authority for Local Governments to Designate Highways under their Jurisdiction for Over Snow Use This includes all over snow use. Counties lack the ability to close over snow use on their highways for more than 90 days. This expands that to a period as long as snow packed conditions exist. Most import issue here was to make sure the current ability of snowmobilers to access highways open by local governments remined intact. CSA/Scott Jones took the lead on this. Effective immediately.

Continue Reading

Welcome Monarch Investment and Management Group

Monarch Investment and Management GroupThank you Monarch Investment and Management Group for your support of a strategic planning process that the TPA has underway.

Monarch Investment and Management group owner Bob Nicolls is an avid dirt biker and supporter of various local clubs including the Central Colorado Mountain Riders, San Juan Trail Riders, and TPA. Not only does Bob ride and provide financial support for public land access and motorcycle recreation, but when he’s not working he participates in numerous trail work days every year!  Thank you, Bob!

About Monarch Investment & Management Group
Monarch Investment & Management Group has been actively involved in commercial real estate investment since 1992. We currently manage 68,644 apartment units in 20 states, making us the 13th largest multifamily owner in the country per NMHC. In addition, Monarch operates a nationally franchised hotel and a ski and snowboard resort.

Continue Reading

Revisions to Forest Planning Process – Letter of Concern

CSA-COHVCO-TPA-IRC-CORE-RWR

United States Forest Service
Att: Chief Randy Moore
1400 Independence Ave, SW
Washington DC 20250

RE: Revisions to Forest Planning Process

Dear Chief Moore:

The above Organizations are contacting you regarding the May 20, 2022 memo issued by your Office outlining a revised forest planning process with the development of a Planning Services Organization (“PSO”). Prior to addressing our specific concerns with the revision, we believe a brief summary of each Organization is needed.  The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization representing the OHV community seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport. CORE is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands including national forests. Collectively, TPA, CSA, CORE, IRC, RwR, and COHVCO will be referred to as “The Organizations” for purposes of these comments.

The Organizations believe it is important to note that we have been very involved in development and implementation of almost every phase of the USFS 2012 Planning Rule.  The Organizations have been involved in subsequent efforts on Forest Plan development with several of the early adopter National Forests across the Country. The Organizations have found the new Planning Rule to be reasonably successful in efficiently developing quality proactively focused Forest Management Plans that will efficiently guide the planning area over the life of the Plan. At the 30k foot level, the PSO model appears to implement an almost ongoing educational component in the planning process, which is a good change to the planning process. The Organizations vigorously assert education of anyone is always a good thing, as exemplified by our support of Tread Lightly, Stay the Trail and the large number of avalanche safety efforts now present.

While the Organizations vigorously support education generally, we are also aware that educational efforts must be relevant to the issues being faced by users and be efficiently provided. Without alignment and efficiency, negative impacts of education can rapidly occur.  The Organizations are concerned about possible negative impacts from the PSO model, which as proposed does not appear to align with challenges being faced now or in the future at the local level and will create inefficiencies and conflict rather than reduce them. The PSO model appears to focus on challenges previously addressed rather than proactively addressing future challenges. This conflict will result in inefficiencies and negative collateral impacts, such as partners with high quality information or resources on a particular topic being overlooked or not properly engaged with. The Organizations would like to avoid this situation as the current planning model generally works well.

The Organizations believe anywhere efficiencies can be gained in the plan development process, such as effective education of USFS staff on successful management models for issues used in other planning efforts, they should be pursued. Equally important is the need to provide flexibility for each new Forest Plan to allow the plan to remain efficient over the life of the Plan.   This type of ongoing education effort, as outlined in the PSO model of planning, could be highly effective in addressing implementation of issue specific concerns where consistency is needed across management units.  An example of this type of issue might be implementation of the 2020 US Supreme Court’s Cowpasture[1] decision specifying that NTSA designations do not alter the multiple use mandates. Another challenge where the PSO model could be highly effective is in correctly applying regional level concepts such as sufficient snow in winter travel decisions.   It has been the Organizations experience that consistent Forest level planning is a critical tool in achieving the successful implementation of standards such as these. We are also all too familiar with the situation where misdirected attempts at efficiency are creating significant barriers to effective management responses to a wide range of challenges.

We also believe this PSO model is highly timely and could be a huge resource for the USFS given the critical shortage of employees being experienced currently. While we are hopeful that the hiring efforts occurring over the summer will be successful,  we have concerns that many of these new agency employees may lack the experience and expertise to tackle a forest plan revision effectively, given the almost niche market of this expertise. Having skilled resources available to guide these newly hired staff through planning processes could provide significant benefits in developing effective, efficient forest plans and ensuring these new forest plans remain efficient over the life of the plan. It is from these points of agreement and support we must also voice our concerns on the revision to the Planning process outlined in the memo.

Concern 1- The four core areas of expertise do not align with pressing challenges identified in your memo.

The Organizations are concerned the four core areas of expertise for the PSO model do not align with the three pressing challenges identified by forest planners on the first page of your memo.  Our concerns on this issue are expanded by the fact there is almost no overlap of the identified PSO areas of expertise and pressing challenges identified by the Forests.  As an example, sustainable recreation and wildfire risk are at best only partially reflected in the adaptive management area of expertise for the PSO model. The Organizations are concerned that challenges of this scale should not be addressed through supposition and possibility.  Challenges such as these can only be effectively addressed when they are meaningfully targeted in a timely manner and significant resources are directed towards these challenges. The Organizations are concerned that when challenges such as these are not properly weighted in national efforts, but are weighted to reflect the imminence of the threats at the local level, this will result in significant conflict and inefficiency.

While local identified priority challenges are not weighted sufficiently in the PSO model, other issues have been overly weighted in the PSO model.   Wilderness inventory processes for forest plans are largely settled, as are Wild and Scenic River inventory processes. Without significant changes in the management of these areas by Congress, we must question why these concerns would be thought to be a priority for local managers creating plans addressing in the next 50 years.  The PSO model should be efficient and responsive to forest concerns and challenges forests are seeing on the ground in the long term as well.  This long-term efficiency is simply not achieved by prioritizing challenges the forests faced 40 years ago.

As we have participated dozens of forest plan revisions across the Country, we can state with high levels of certainty that Wilderness and Wild and Scenic inventory are the basis of numerous comments and challenges to Forest Plans despite these being well understood by planners. These comments continue to be submitted despite Wilderness inventories and Wild and Scenic River inventories are largely complete and are based on a highly litigated process now used by the USFS.  It has been our experience that these comments are submitted for a variety of social factors including the commentors continued opposition to the multiple use mandates rather than a substantive concern on the forest.  Most of these comments are form letters and most challenges are unsuccessful, which should mitigate possible concern for these issues as management priorities.  While there is still significant political discussion around these issues, the management process is reasonably settled. While the Organizations could see a brief discussion of this issue in an adaptive management type category, this is simply not a priority  issue that warrants a separate area of expertise.

The Organizations also submit that these are issue generally legislative in nature and resolution of these concerns generally falls outside the Forest Planning process.  The legislative nature of this issues is evidenced by the fact that many comments received by the forests in planning represent a failure to accept the conclusions of previous Wilderness designations by Congress by the commentor. Thousands of separate pieces of legislation have identified areas that could be protected as Wilderness by Congress.  A much smaller portion has passed and these laws have identified areas to be protected as Wilderness and other areas released back to multiple uses by Congress. The Organizations vigorously assert that areas being identified for management as recommended Wilderness in a Forest Plan after the same area has been specifically reviewed and declined for designation by Congress is simply inefficient and should be avoided. Many States Wilderness Acts also specifically provide hard release language for areas Congress has declined to designate and clearly stating these areas should be returned to management for multiple uses. Despite this clarity in Congressional action, many comments would like to see this resolution anyway. The PSO model should avoid facilitating this type of situation.

The proposed PSO model simply does not reflect headway that many states have made on Wilderness and Wild and Scenic River issues.  Gone are the days of RARE inventories and the challenges the agency faced in these processes.  Almost every state the USFS operates in has a state Wilderness Act which resolves challenges to the RARE process and specifically addressing Wilderness designations with high levels of clarity and also releases of other USFS managed areas for multiple uses. These issue areas might have represented monumental challenges for forest planners 40 years ago but now these represent processes and designations that are well settled. We simply don’t see that situation changing in the foreseeable future either.

The management of species of conservation concern is also another area with a reasonably formal process for review and designation and functionally poorly suited to an area of expertise in the PSO model.  For Endangered and Threatened Species the §7  Consultation process is well developed and heavily litigated, based on our decades of involvement and support for these efforts. For species of conservation concern and most other species the engagement of state wildlife agencies as a partner in the planning process is again pretty resolved in terms of how and when to engage.  Any further discussion of this type of an issue would be hugely forest or area specific simply because of the large number of species and diverse numbers of forests, which would drive discussions to locations of habitat areas, uses in habitat areas, winter range and other issues.  This type of diversity of issues and facts would heavily undermine the benefits of identifying species of  conservation concern as a specific area in the PSO model.

We believe that currently there are simply larger concerns for managers to be addressing in Forest Plans and the PSO model must be placed on a foundation of addressing future challenges rather than looking 40 years into the history of the agency. This is simply not efficient and the Organizations would really encourage the PSO model/process to look forward.  Under the designations for the PSO model, the Organizations submit resolved issues such as this might be most effectively addressed in a general category, such as adaptive management but simply should not be addressed as a separate category of expertise.

Concern 2 – The four core expertise areas do not align with current USFS strategic efforts to address resource protection.

The identified core areas of expertise in the PSO model fail to effectively address more abstract concepts of planning such as effective resource protection, which has a strong alignment with pressing issues like climate change and wildfire. Again, these important challenges are only arguably reflected in the adaptive management area of expertise.  Resource protection has been a cornerstone of numerous legislative efforts, public concern and USFS efforts for decades as evidenced by the USFS 10 Year Wildfire Crisis Strategy released in January 2022[2] and the 10 Year Shared Stewardship Challenge[3] mandated by the National Forest System Trails Stewardship Act. These are efforts that have now spanned several Presidential Administrations and were the basis of bipartisan support in their development, and have generally been well received by the public.

These strategic efforts that have engaged partners through assertions that these were attempts by the Agency to transform their basic structure and methods of doing business. A strong negative message to the partners that have engaged in the efforts for decades, would be sent if these strategic efforts are not carried into forest plans.  Ensuring these efforts are effectively incorporated into forest plans to continue efforts to undertake foundational changes in the way the agency does business will send a more important message to partners. While we are aware that adaptive management might cover a portion of this type of concern but it does not provide balance or address the detailed nature of information that could be provided.

As an example of why these issues warrant specific recognition in the PSO model would include the fact that these planning efforts and legislative changes have resulted in major transformation of good neighbor authority in firefighting and trails management.  The multifaceted nature of many of the challenges the agency is facing is exemplified by the identification of wildfire risk as a pressing concern for planners. The Organizations are able to identify numerous concerns that would each warrant inclusion as an area of expertise for the PSO teams, such as:  

  • High intensity wildfire could be the most critical issue facing the forests and barrier to almost every value on the forests currently;
  • Proactively addressing fuel mitigation concerns by utilization of tools such as thinning and ensuring access to areas to allow emergency response should be a high priority for education of planners;
  • Allowing flexibility for managers to effectively fight active fires with every resource available now and over the next 40 to 50 years;
  • Allowing flexibility for managers to address post fire impacts – many forests currently in RMP revisions have been hugely impacted by the new high intensity wildfires but lack good information on long term challenges;
  • Research indicates significant impacts of burn scars on predators many of whom are ESA listed;
  • Fire scars could take centuries to recover after high intensity impacts; and
  • Massive impacts from fire occur on watersheds well outside burn scars and exposes public to safety concerns when using areas adjacent to watersheds impacted by wildfire.

The Organizations would be remiss if the relationship of forest health/wildfire to recreational opportunities on USFS lands was not identified as a priority concern for the recreational community. The value of these resources to our Organizations is evidenced by the fact programs we have championed  have provided hundreds of millions a year to the USFS for maintenance grants for trails on USFS lands.  We would like to ensure these funds are used as efficiently and effectively as possible in mitigation efforts for fire before, during and after areas are impacted by fire.  If there are provisions in forest plans that are facilitating this type of efficiency, we would like to know. If there are existing barriers in forest plans prohibiting the effective management of this issue, we would like to know this as well. It is critically important to the recreational community and our partnerships with land managers.

The confluence of two parallel efforts on firefighting that highlight the need to provide flexibility in plans to address wildfire as a priority management concern.  This type of issue warrants inclusion as an expertise area for the PSO model.  This is the release of the change of condition report by the Sierra and Sequoia NF as part of their final Forest Plan revision.[4] This report highlighted impacts to the Sierra and Sequoia NF from the high intensity fires that have impacted as much as 80% of these forests in the last 20 years. It is unfortunate that any forest is facing this situation, but the Organizations submit this situation is becoming more viable on many forests by the day making summaries such as this highly valuable for education.

The Sierra/Sequoia NF change in condition report was released in close proximity to a recent 60 Minutes news story entitled “Taking the Fight to the Night against California’s Wildfires with new Helicopters[5]   which aired on June 26, 2022. This article highlighted firefighting efforts that were functionally impossible only a few years ago.  With new technology, firefighters were now able to fight fires at night with aircraft which has been demonstrated to be highly effective. Could we be fighting fire with robots or drones in the near future? As this is already commonplace in the search and rescue operations, that is entirely possible and we must be ensuring these technological advancements are not precluded on forests due to barriers in the Forest Plan. It is unfortunate that we are aware of several forest plan provisions that have made responding to forest health and fighting efforts more difficult.

The confluence of these two resources is critical to our concerns on areas of focus under the PSO models. While these types of issues could be addressed with adaptive management analysis, is this reflecting the gravity of the challenge being faced by huge portions of USFS lands.  We don’t think it does and avoiding barriers to effectively addressing these types of challenges in the planning process must be a priority for the effort.  This creates efficiency in the planning process and over the life of the plan while protecting resources.

Concern 3 – The four core expertise areas do not align with the multiple use mandate of the USFS.

The Organizations are concerned that the 4 core areas identified as centers for the PSO model entirely fail to embrace the multiple use mandate of the USFS. Entire sectors of the community around any USFS managed area are simply omitted entirely from the benefits of PSO model. The current PSO model lacks representation of agricultural, timber and recreational interests, which we believe are critical components of multiple use.  The Organizations must express serious concern that the current PSO model must strive to proactively comply with the multiple use mandate in the most efficient and effective manner possible.  The impacts of failing to weight these types of concerns in the PSO model will have many negative impacts over the life of these plans. We believe that properly weighting all multiple uses in the PSO model will minimize possible impacts from this type of issue.

Accurately and effectively understanding how the forest planning process supports and conflicts with the economic transformation of local communities that are relying on the forest lands for their existence.  This cannot be overlooked and is an important reason for the core areas of expertise more completely reflecting the general areas of multiple uses identified in the statutory requirements for the agency. Again, this type of important concern is not accurately weighted by including these types of concerns under an adaptive management type standard.

Conclusion.

The Organizations are aware that implementation of the PSO model will heavily influence the development of forest plans moving forward and our hope is to ensure the PSO model and planning process works as efficiently and effectively as possible. There can be significant and wide-ranging benefits from development of this type of model for the agency moving forward.  For these benefits to occur, the PSO model must focus proactively on addressing challenges that are anticipated rather than reopening largely settled political issues in the forest plan development process. Many of these issues are issues that the Forests may have faced 40 years ago but are now well settled policies.  Proactive standards will result in the development of forest plans that remain efficient and flexible over the life of the plan. The Organizations have significant concerns that the current four core areas will create conflict between national team and local planners and this conflict will result in inefficiencies and negative collateral impacts, such as partners with high quality information on a topic being overlooked.  It is our hope that these concerns can be addressed quickly to ensure that forest plan development continues efficiently and effectively.

If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com), Chad Hixon (719-221-8329 / chad@coloradotpa.org), or Clif Koontz (435-259-8334 / clif@ridewithrespect.org).

 

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
TPA Executive Director

Marcus Trusty
President – CORE

Sandra Mitchell
Executive Director – IRC

Clif Koontz
Executive Director
Ride with Respect

Sandra Mitchell
Executive Director
Idaho Recreation Council

 

[1] See, UNITED STATES FOREST SERVICE ET AL. v. COWPASTURE RIVER PRESERVATION ASSOCIATION ET AL. No. 18–1584. Argued February 24, 2020—Decided June 15, 2020.

[2] See, Confronting the Wildfire Crisis | US Forest Service (usda.gov)

[3] See, 10-Year Trail Shared Stewardship Challenge | US Forest Service (usda.gov)

[4] See, USDA Forest Service;  2020 Creek Fire and SQF Complex: Effects on Terrestrial Ecosystems on the Sierra and Sequoia National Forests; A full copy of this report is available here Forest Service (usda.gov)

[5]  A full copy of this portion of 60 minutes is available here: Taking the fight to the night against California’s wildfires with new helicopters – YouTube

Continue Reading

The Wildfire Response & Drought Resiliency Act

Congressman Joe Neguse
1419 Longworth HOB
Washington DC 20515

RE:  THE WILDFIRE RESPONSE AND DROUGHT RESILIENCY ACT HR 5118

Dear Congressman Neguse;

Please accept this correspondence as the opposition of the Organizations to the Wildfire Response and Drought Resiliency Act (“the Proposal”).  Our concerns are centered on §208 of the Wildfire Response and Drought Resilience Act, which would Congressionally designate existing administrative boundaries of Roadless areas. However, the Organizations are also very concerned about the functional failure of the legislative process in the entire procedure around developing this Proposal in the Rules Committee. While the Organizations are glad that funding for federal public lands has been a priority recently, we must express some frustration with the continued earmarking of large sums of money for projects on public lands on an ad hoc basis rather than focusing on development of an actual budget amount that can sustain basic agency operations. It has been our experience that this method of funding is leading to significant confusion of the public and repetition of analysis in planning areas.

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 representing the OHV community seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The TPA is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport. CORE is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands including national forests. Over 750 individuals have contributed money or volunteered time to the organization. The Alaska Snowmachine Alliance(“ASA”) supports snowmachining throughout the State of Alaska and all snowmachine activities including racing and vintage, snowmachine trails, the SnowTRAC program and it’s funding, snowmachine Search and Rescue and the betterment of snowmachining throughout the State of Alaska.  Collectively, TPA, CSA, CORE, IRC, RwR, ASA and COHVCO will be referred to as “The Organizations” for purposes of these comments.

The Organizations are huge partners with the Federal Land management agencies and the State OHV/OSV programs that have been developed provide $200 million or more in direct annual funding to public lands management for the benefit of all users.  These efforts range from providing winter trail grooming for the benefit of all users to funding and equipping  seasonal crews to clear and maintain trails for the benefit of all users and protection of resources. Many of the challenges facing recreation are also impacting wildfire prevention and management and the management of water resources.  Our Organizations understand the challenges faced on public lands and barriers to resolving these challenges and must assert the Proposal would be a major step in the wrong direction on addressing these challenges.

1(a) Congressional designations of Roadless Area boundaries.

The Organizations are vigorously opposed to the Congressional designation of existing inventoried Roadless areas under §208 of the Proposal. The Organizations are confounded by the inclusion of this requirement in the Proposal, as it runs directly contrary to the rest of the legislation which seeks to streamline and accelerate fuels treatments and fire restoration efforts along with drought mitigation efforts.  The Organizations must question why such a designation would think to be required when the rest of the Proposal mandates that NEPA requirements must be complied with for all projects and NEPA analysis has been highly effective, if not slow, to address resource protection.

The Organizations are unable to theorize how adding a significant layer of analysis and restriction to these efforts furthers the goals and objectives of the rest of the Proposal. This additional layer of review and analysis makes no sense on the ground. We must ask how can water projects or fuels treatments be effectively addressed at the scale necessary without building permanent roads? Many of these resources with need roads to continue maintenance of the facilities and treatment areas and that type of long term maintenance has now been Congressionally prohibited by the Proposal.  This provision simply makes no sense.

Our second basis for vigorous opposition to §208 stems from the fact the Organizations and our members have participated in the development of the National Roadless Rule and state specific Roadless Rules that have been finalized in Colorado and Idaho.  We are aware that Roadless Rules for the State of Alaska and Utah are under development. We have generally supported these designations as multiple use is a characteristic of these areas.  We are opposed to the exclusion of Alaska and Utah roadless rules, which are now under development, from designation and protection in the Proposal for no reason.  These state efforts reflect the  state flexibility in managing these areas and we believe this flexibility is one of the strengths of the Roadless Rule.  This strength would be lost if these designations were now subject to Congressional review and approval. This Congressionally based model of land management has been proven to be unsuccessful on other land management issues, as obtaining federal law changes to address small boundary designations changes is now required.  This type of approval  can take decades to resolve even small issues in land management as often small issues like this simply are not of sufficient size to capture the bodies time and resources.  We understand why this occurs but  this model remains less than optimal.

A larger example of why we are opposed to the Congressional designation of Roadless Areas is the inability to release many Roadless and Wilderness Study Areas that has plagued these Congressional efforts since the 1970’s. Many areas have never been suitable for designation as Wilderness but have continued to be stuck in the “may be designated” level of management designation as Congress will not release these areas. We are concerned that this management situation will be commonplace in Roadless Area management if Congressional designations are adopted.  This is a process we do not want to see applied to the development and management of Roadless Areas.

1b. General hostility of the Proposal  towards roads is arbitrary and will create horrible inefficiencies.

The Organizations are vigorously opposed to the hostility that is displayed towards roads in general in the Proposal.  It has been our experience that roads are a critical component of firefighting and fuels treatments but also major and minor water projects, which the Proposal outlines dozens of. As an example of our concerns on this issue is the fact that water quality monitoring is simply not done effectively and efficiently when there are long hikes involved to get samples to study.  Throughout the Proposal there are numerous restrictions are placed on permanent road development and maintenance outside the designations of the Roadless areas by Congress.

These provisions would be exemplified by three additional restrictions on permanent roads in §203 of the Act.  This restriction is included despite the explicit requirement for NEPA analysis of every project under the Proposal. If there is a need for a road that can be supported by NEPA analysis, why would these benefits be restricted? The Organizations are intimately familiar with the situation where roads have been lost due to landslides or avalanches and there is a compelling need to replace them for many reasons. Often access is a major concern for fuels and firefighting and these routes may also sustain a critical access need for these areas that would allow fuels treatment on an ongoing basis.    Roads are commonly lost in flooding that is highly common in burn scars after fires. Rebuilding these roads is commonly step one of restoring and stabilizing these areas and we believe restoring  these routes in the best locations possible must be recognized as a compelling need, as often times there is no footprint of the route to even relocate. NEPA allows this type of flexibility in planning efforts and this must be allowed to move forward. Why would anyone think this was a process that was having a negative impact on the landscapes? These types of decisions are best weighted and made at the local level and these types of prohibitions stop this type of local decision making from occurring. If these routes can be justified in NEPA they should be allowed.

2a.  Current ad hoc funding processes create massive confusion of the public and overlap of efforts without resolving foundational challenges to public land management.

While there are some provisions or concepts in the Proposal the Organizations can support, the Organizations and our members must express concern over the ad hoc manner that has been chosen to address funding of projects on federal lands over the last several years.  After several years, we can confirm that it lacks efficiency and creates large amounts of confusion of the public and often does not achieve the goals of the efforts. As a result,  we are opposed to the continuation of management of public lands in this manner.

It has been our experience that simply determining which federal program is currently funded and managing an effort created under this ad hoc process can be very difficult for any member of the public. Having multiple federal groups intermittently working on the same issue in the same area is difficult enough  for the public to understand. This is compounded by the fact that often there are similar state driven efforts in these areas in addition to efforts to list species under the ESA, forest plan revisions and travel plan development.  In many areas these efforts can vastly overlap and this overlap provides a significant barrier to the publics ability to meaningfully engage in efforts.  Often we have experienced our members participating in efforts in good faith efforts to address concerns only to find part way through the effort that the direction has changed for the effort or the scope was incorrectly understood or explained in the beginning of the effort and the public is not participating in the correct effort to address their concerns.

While the goals of these efforts may be commendable, this is simply not the manner to accomplish goals, and our concerns on this issue are not abstract or remote as this type of confusion is already occurring.  As an example, one of our groups has been involved in a landscape level forest restoration effort, which is a good thing as poor forest health is a major challenge in the area.  While this landscape forest level effort is moving, a separate regional forest restoration,  that had previously run out of funding and was replaced by the subsequent landscape sized effort, was restarted as it was provided more funding under the infrastructure bill. These are two efforts with an almost entirely overlapping geographic scope of work.  As public engagement starts for the regional effort, the public  expresses concern about the lack of clarity in the entire effort. This confusion and frustration was compounded by the fact that facilitators are unable to provide even basic maps for these efforts or explain how they are aligned with each other.  This is highly frustrating to everyone involved, including the facilitators and land managers and should be avoided moving forward.

Compounding the public frustration with these efforts is the fact the local users still have other meetings for general efforts on the forest as well, such as those for travel plans and resource management plan updates.  Sometimes there are several meetings occurring on the same general issues long distances apart at the same time. This is just a less than optimal manner to engage the public and creates horrible process inefficiencies and simply must be avoided in the future. The Organizations believe the use of the budgeting systems within the agencies would be a major step towards resolving these types of conflict and confusion.

We are thrilled to see the recognition of recreational staff for the agencies as a priority for funding in the Proposal but must question how much benefit this will be in the long run. We are concerned that the Proposal only addresses part of the issue faced in the recreational community.  While we frequently say we cannot coordinate our funding and partnerships with an empty desk, putting a staff person at the desk does not resolve the problem.  The project simply cannot make the desk and then never move as there are insufficient nonrecreational resources available to complete NEPA analysis.

A huge portion of recreational activities and improvements that are undertaken by recreational staff must comply in some manner with NEPA requirements. While the increased levels of staffing could support starting NEPA analysis of issues, such as parking, bathrooms and heavy maintenance to recreational facilities, there is simply no way this can be completed as there is no staff to fill interdisciplinary teams that are needed to complete NEPA analysis of the project. An example of this type of problem would be the fact that many recreational efforts require special use permits.  It has been our experience that SRPs are issued for a wide range of activities, and as a result calling these recreational staff would not be accurate. Only staffing recreational resources would allow a project to be accepted by the rec staff at the office and then stall because there is no permit person to review and approve the permit.   The project remains incomplete despite the new funding.

A second example of how only funding recreational staff would not improve recreational activities on public lands would be another situation we commonly experience.   This involves the replacement of large infrastructure resources such as visitor centers, ,bridges, toilets etc.  How does a bridge repair project complete NEPA without approval of general sites preparation and bridge design standards without approval by an agency engineer?  Agencies will only accept contractor efforts to a certain point and then the agency retains final approval on the issue.  If funding is only provided for recreation staff without funds to support these other areas of expertise, the only thing that will be created is a large NEPA backlog with the continuation of this model of funding. This is not acceptable to our Organizations.

2b.  General lack of transparency and expertise in Rules Committee proceedings.

The Organizations are also opposed to the Proposal based on the progression of the Proposal development, as most of the component legislative drafts had not been heard in their committee of record before the Rules Committee consolidated them into the Proposal on July 22, 2022.  The Organizations vigorously assert there are issue specific committees in the Legislature for a reason and they should be used and relied on for their areas of expertise.  Of  48 separate proposals that were consolidated into the Rules Committee amendment, only 9 had received a markup in their relevant Committee of record. As a result, most had not even been heard by the Committee of record that should be handling these types of recommendations. 1 legislative draft was introduced in the Amendments for the first time.  As a result, the expertise and experiences of the other committee members was not obtained before the Rules Committee bundled these separate drafts into the Proposal.   This is simply unacceptable.

In addition to the failure of most Committees of record to even hear or review  the legislative drafts, the Proposal also functionally voided future committee action on issues that were scheduled to be in their respective committees. This resulted from hearing in the Committees occurring after or  at the same time as the Proposal was heard on the House Floor.  This only compounds the risk of conclusions that simply lack reason or effectiveness on the Ground. Not only had these issue legislative drafts not been heard by their respective natural resource committees, the Rules Committee process was horribly truncated as well. Discussion was limited to one hour, points of Order on the consolidation process with the Committee simply were not allowed and discussion on the House Floor was also significantly restricted.

2c.  Proposal could delay treatments on the ground as there is no alignment with current USFS efforts on fuels treatments.

The USFS has partnered with a wide range of interests and groups in an attempt to address wildfire issues in a strategic manner since the early to mid- 1990s. The USFS has a finalized strategic plan in 2014, which was updated in 2022.  Our Organizations have participated in these efforts and planning processes as wildfire is a major concern for the recreational community.  We are aware that these ongoing strategic documents have been successful in addressing fire risk through use of expanded good neighbor authority for treatments, and expansion of usage of community wildfire protection plans to protect areas adjacent to national forests.  Too often been our experience that as the timber harvest process moves forward and is finally approved for high priority treatment areas, these areas have burnt before the process has been completed. As a result of this situation, we are aware that delays from inefficiencies can have major impacts on timber/fuel mitigation efforts and the water situation is operating on a very aggressive time table with the drought.

Again, the Organizations are intimately familiar with how many well intentioned efforts to protect resources can actually serve as a major barrier to protecting the resource.  This could not be better exemplified by a situation that occurred in Colorado several years ago, where maintenance was badly needed to remove dead trees around a reservoir on USFS lands that provided municipal drinking water.  This reservoir had been in existence since the later 1800’s and had water rights that allowed management of the reservoir that significantly predated the USFS management of the area and designation of the surrounding area as Wilderness.  Those rights were identified in the Wilderness designation. Despite these protections mechanical treatment of the dead trees was not possible due to the Wilderness designation and eventually the USFS was able to allow the dead trees to be blasted to address the water needs of the community. We have attached a video of this blasting for your reference.[1] For this effort, the explosives had to be brought in by pack mule train and all prep work was done by hand. While we commend everyone involved for this resolution, we must also note that this was probably not efficient compared to other possible resolutions and this represents a concrete example of how well-meaning efforts can result in horrible inefficiencies in the end.  A couple of people with chainsaws could have fixed this issue in a few afternoons rather than the years of effort the blasting project took. This type of inefficiency is a major problem.

The Organizations can say with absolute certainty that the 10 year wildfire protection plan outlined in the Proposal is very different in terms of scope and application than the version of the strategy the  USFS is recently finalized. Many of these issues now sought to be addressed are unrelated to wildfire or water issues and may be entirely outside the expertise of the respective agencies currently leading the efforts which compounds possible inefficiencies.  The Organizations submit that remaining focused on the wildfire challenge should be the priority for wildfire planning and expanding the scope of this effort is simply degrading this focus on wildfire.  This is more of a concern given the horrible staffing situation that is facing the USFS currently which are outlined in other portions of these comments. The Proposal does not foster this type of alignment and efficiency.

3. Federal budgeting process should be relied on rather than current ad hoc efforts.

The Organizations welcome the implicit recognition of the fact that the federal land managers simply are unable to hire staff to fill positions with the provisions of §123 of the Proposal.  The inability of the agencies to hire staff has become a systemic problem for a long time. The Organizations have been partnering to fund the hiring seasonal and fulltime recreational staff for many years and it has been our experience that salaries simply do not compete for most of these jobs. Many of these  salaries are insufficient for staff to live in the districts they work and manage.

The ad hoc funding process that has been used by Congress to fund public lands has not helped this situation as often basic questions are presented in these funding efforts such as if permanent staff can be hired with these funding efforts. This was one of the first questions we ran into around the  funding provided by Great American Outdoors Act. While an isolated funding stream bump can have significant benefit, the systemic use of these types of tools is not optimal. These ad hoc funding streams fail to address issues like salary and other issues around staff.  We submit that the  expertise of committees and agencies should be relied on to address these issues in the budgeting process.

4. Conclusion.

For the reasons outlined in this correspondence, the above Organizations must vigorously  oppose the Proposal.  Our concerns are centered on §208 of the Wildfire Response and Drought Resilience Act, which would Congressionally designate existing administrative boundaries of Roadless areas. However, the Organizations are also very concerned about the functional failure of the legislative process in the entire process around amending this proposal in the Rules Committee. While the Organizations are glad that funding for federal public lands has been a priority recently, must express some frustration with the continued earmarking of large sums of money for projects on public lands on an ad hoc basis rather than focusing on development of an actual budget amount that can sustain basic agency operations. It has been our experience that this method of funding is leading to significant confusion of the public and repetition of analysis in planning areas.

If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com), Chad Hixon (719-221-8329 / chad@coloradotpa.org), or Clif Koontz (435-259-8334 / clif@ridewithrespect.org).

 

Respectfully Submitted,

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
TPA Executive Director

Marcus Trusty
President – CORE

Sandra Mitchell
Executive Director – IRC

Clif Koontz
Executive Director
Ride with Respect

Michelle Stevens
Alaska Snowmachine Alliance

 

[1] Watch | Facebook

Continue Reading

USFWS Silverspot Butterfly Comments

CSA, TPA, COHVCO logos

U.S. Fish and Wildlife Service,
Public Comments Processing,
Attn: FWS–R6–ES–2021–0134,
MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–3803

RE: Threatened Species Status with Section 4(d) Rule for the Silverspot Butterfly
Docket No. FWS–R6–ES–2021–0134; FF09E21000 FXES1111090FEDR 223

Dear Sirs:

Please accept this correspondence as the vigorous opposition of the above Organizations with regard to the Proposed species status of the Silverspot Butterfly (“The Proposal”).   Prior to addressing the specific concerns, the Organizations have regarding the Proposal, we believe a brief summary of each Organization is needed.  The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization of approximately 250,000 registered OHV users in Colorado seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is a largely volunteer organization whose intention is to be a viable partner, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding.  The TPA acts as an advocate of the sport and takes the necessary action to ensure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite the more than 30,000 winter motorized recreationists across the state to enjoy their passion.  CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport.  For purposes of these comments, TPA, CSA and COHVCO will be referred to as “the Organizations”. The Organizations have been actively involved in numerous esa listing efforts, such as lynx, grey wolves, wolverine and grouse. We have also actively involved in numerous efforts on species management hosted by groups like the US Fish and Wildlife Service, state wildlife agencies and the Western Governors Association efforts on Species management.  These efforts have included a wide range of participation includes panelists in round table discussions at events, financially supporting Wolverine research in Idaho to funding development and distribution of the 3rd version of Lynx Conservation Assessment and strategy.

We must ask what has changed when compared to previous determinations that the Silverspot butterfly species and various DPS was not the basis for listing. This concern is highlighted by the fact the listing documents undertake a significant discussion about what the proper species classification is for the Silverspot.  The highly ambiguous nature of the listing regarding many issues ranging from: 1. The mere definition and description of the subspecies; 2.  The inclusion and exclusion of many factors such as exclusion of pesticides as a possible impact to the species; and 3. Inclusion of habitat fragmentation as a threat without addressing the wide-ranging nature of habitat fragmentation.  The current proposal clearly identifies that the species population is stable and is expected to remain so for the foreseeable future, which means there is time to more completely understand the species, describe and define the species and then address the challenges it is facing.

The lack of clarity on these basic issues will lead to huge confusion for the public and guidance that lacks clarity in the recovery plan.  There is a significant lack of analysis and highly theoretical nature of analysis of possible recreational impacts on butterflies generally which results in conclusions that are horribly internally conflicting.  The only recreational activity even mentioned in the proposed rule is collecting and this is found to be a minimal threat. The Organizations are intimately familiar with decisions and efforts where one agency explicitly and clearly states recreation is not an issue for the species and there should be no change to management of recreation due to the listing and subsequent efforts by other agencies place significant restrictions on recreation when habitat fragmentation is even mentioned. This is exemplified by Wolverine listing efforts, Mexican Owl listings and far too many others to address.  This type of concern explodes when the listing decision is as unclear and conflicting as the Proposal is.  Establishing a clear foundational structure for any listing is critically necessary to avoid conclusions that lack factual basis, such as the recent management of bumble bees as Fish in California.[1] Proposal is totally premature as basic questions are not addressed and may also lead to conclusions and management that lack any factual basis and undermine public support for species management more generally.

1a. The landscape challenges surrounding insects on the ESA cannot be resolved with poor listing decisions for species.

The Organizations must recognize there is significant ongoing discussions on the ability of the ESA to list insects generally.  These discussions have centered around concerns  such as physical characteristics of insects failing to identify the species, the inability of habitat to be identified with any accuracy or the lack of understanding around the challenges to the species. While there is no uniform path forward identified, the general consensus appears to be that species should not be listed without resolving these challenges, as the management process of the ESA simply does not work for insect and several other species.

Several authors have recommended the following rather novel process, but legally questionable resolution to address insect related issues for ESA purposes:

“In light of FWS’s reluctance to change, the best solution to the problem is an increase in knowledge about insect conservation and the use of surrogate species to protect endangered and threatened species until the necessary knowledge base has been established.”[2]

While this is a novel and we believe unadvisable resolution of this issue, it recognizes there are currently significant unresolved issues with the ESA process for insect management. American Entomological Society echoes these concerns in their position paper addressing the challenges of providing ESA protections as follows:

“ESA advocates the following positions regarding the U.S. Endangered Species Act of 1973: • The decision to protect a species should be made on the basis of current scientific evidence, to inform listing and prioritization schemes. • Insect conservation is critical to healthy ecosystems, but a clear bias toward plants and vertebrates exists in the listing process. The population dynamics, interpretations of species boundaries, taxonomic conventions, and other challenges related to identifying and counting insects should be accounted for when assessing their status. Here, the Endangered Species Act needs improvement.[3]

Many of the pitfalls that are faced when listing insects on the ESA, such as accurate descriptions of physical characteristics of the species are exhibited in this listing. The listing and related rules do a commendable job addressing the significant conflict among researchers on how the species is even defined. This type of foundational concern in a listing is a concern.  The listing also fails to address factors that have heavily impacted other species of butterfly and how these factors were found to be excluded or irrelevant to the current listing.  Pesticides would be an example of this issue.

While we are aware there is concern about the species, this does not create a basis for listing.  Uncertainty does not result in a need for a listing, but rather indicates a need for more research to address the foundational requirements for a meaningful listing analysis. The need for listing is further mitigated by the fact that the species is stable currently and only forecast to decline from climate change.  For the Organizations, the 30kft level discussion on the applicability of the ESA to insects is a major concern and should be addressed by the legislature before listings occur. The Organizations are further concerned that these types of listing are hugely problematic when the protections of the ESA are addressed for the species. Those challenges are addressed subsequently in these comments. The Organizations are very concerned that generally the listing will simply create management problems with little benefit to the species.

1b. Conservation efforts without scientific process and standards do not yield results but only conflict.

The Organizations would like to address the larger scale concerns around the Proposal.  As we noted earlier, the Organizations have been involved in dozens of ESA listings, Conservation Assessments and Strategies and other projects to support a wide range of species. Some of these efforts we have been involved with for more than 30 years. While these efforts have spanned decades, we are not sure how much difference it has made for many species and we are not aware of a single species that has been the target of these efforts that has actually been delisted. Globally recognized wildlife researchers have recently identified this as a significant management challenge for all involved, which they outlined this situation as follows:

“However, problems can arise at the outset from the way these issues are framed. For instance, in the field of human–wildlife conflicts they are often presented as a struggle between animals and people, and the conflict between different human interest groups is ignored (Peterson et al., 2010;Redpath et al., 2013). In reality, most of these conflicts are between conservation interests and other human interests, such as farming, hunting or fishing (Redpath et al., 2015b). Representing these issues as conflicts between farmers and predators is misleading and limits the opportunities for management. To help delineate these two dimensions, Young et al. (2010) distinguished between human–wildlife impacts and human–human conflicts.

The problem of framing is further compounded by the fact that it is often the conservationists who, although not neutral in such settings, are the ones driving the development of management strategies. Clearly, they are likely to be biased in seeking outcomes that benefit conservation, and may not be trusted by the other party or parties….Second, policy-makers often want quick fixes and rapid  conflict resolution. Yet, these conflicts are ubiquitous and persistent. We know of no example where a wildlife conflict is considered to have been resolved. Indeed, there are very few instances where they have been effectively managed in the long term to reduce conflict, although there have been some short-term, local successes.”[4]

The Organizations could not agree with this conclusion any more vigorously.  We simply completely agree with this concern.  This type of a management concern is not addressed by listing species that really cannot be described, based on highly modeled habitat, and scientific analysis that fails to address basic consistency of analysis. For this reason alone, the Organizations must oppose the listing of the species which has been found stable currently and for decades to come.  We just need better analysis.

2a. ESA Listings based on scientific conflict and uncertainty are legally insufficient.

The Organizations are concerned the proposed listing is highly theoretical and provides little on the ground analysis or information to support many of the conclusions that are provided, such as how was the range of the species established as many of the factors identified in the listing in no way correspond to the range asserted in the listing.  This lack of actual information is problematic on many issues, such as the consistency in the application of modeling of factors and how these models relate to the legal requirements for listing a species on the ESA. ESA listing that are based on modeling of possible future impacts are problematic, as evidenced by the 2020 withdraw of the proposed Wolverine listing which was withdrawn based on insufficient modeling of the impacts and challenges.

The Proposal identifies the stability of the population as follows:

“We find that the Silverspot is not currently in danger of extinction because the subspecies is still widespread with multiple populations of various sizes and resiliency spread cross its range, capturing known genetic and ecological variation. Therefore, the subspecies currently has sufficient redundancy and representation to withstand catastrophic events and maintain adaptability to changes.”

The decline of the stable population is only forecast as is clearly identified in the Proposal as follows:

“However, we expect that the stressors, individually and cumulatively, will reduce resiliency, redundancy, and representation within all parts of the range within the foreseeable future in light of future climate change effects.”[5]

This forecasting is concerning as the only change for the Silverspot since last attempt to list is the further division of a species into more subspecies and this has been occurring since the late 1970s. We doubt this type of management future could ever have been predicted at the time of the previous listings.  We are also concerned that in previous listings the primary threat to the species was identified as human disturbance. These challenges are outlined in great detail in the Hammond article[6]  published in 1984 identified in the SSA several times, but at no point is the change in what best available science even addressed.  Candidly the situation presented in the Hammond article presents a far more compelling need for listing and grim forecast for the species. Thankfully this has not occurred but we must question how changes such as this can occur without discussion of the analysis and process that the conclusion has resulted from. Clearly this is an example of why forecasting is problematic in the listing process. Given the huge number of subspecies that are now occupying almost overlapping habitat areas, the Organizations have to question how accurate counts are achieved and habitat is drawn with the challenges in even describing the species currently. While researchers should be commended for their on-going efforts around models of insect species as this is scientifically interesting, this is not the basis for listing species on the ESA as this effort falls well short of the legal requirements of listing.

The Organizations would also express concern around the premise that an ESA listing may be found to be sufficient for further management actions in the face of this type of uncertainty, as this flies in the face of best available science and management process.  Best available science and basic management decision making mandates that in these types of situations, the inaccurate modeling effort that is being relied on as the basis for the management action be returned for further development and refinement to improve accuracy. Inaccurate modeling of issues can have catastrophic unintended consequences when management actions are being taken on the model.  Until basic information on the species can be clearly defined and described, any listing is premature as the lack of science is not science but rather evidence of the need for further work on the issue.

2b. Significant clarity must be provided for the identification of these various subspecies.

We are very concerned that without some way to actually describe and identify the species every butterfly that is seen in possible habitat will be assumed to be Endangered and this will create nothing but conflict and management problems.  As previously mentioned, the Organizations are heavily involved with ESA management of several species and these are species that are easily identified based on their physical characteristics by the public.  Members of the public are able to identify a lynx and separate it from a mountain lion.  Most of the public is able to consistently identify a wolf from a fox or coyote.  Even with these generally recognized species boundaries, we have encountered significant concerns and unintended consequences from listing and management of these species. Many of the public believe that simply seeing a creature in the wild creates the need for management action. These concerns are exponently expanded when the listed species cannot be accurately identified as often the public cannot separate butterflies from moths etc. We want to avoid management decisions being based on the fact the public may have saw a butterfly or a moth or other species that may or may not be listed.

The need for a clear and identifiable description of what is a possibly protected species and what is not is exponently compounded by the fact the subspecies can reproduce with each other and create hybrid species. A review of the SSA reveals almost every color in the rainbow is identified as characteristic of the possible subspecies, and they are all about the average size of a butterfly. The SSA clearly states the butterflies will display orange, yellow, brown, black, white or silver. The SSA continues that hybrid species may introduce even more variation into the physical characteristics of the species. Our concerns are again compounded by the huge numbers of environmental factors that may impact these characteristics in insects, including food sources, time the sun, intensity of the sun, parasites, temperature to name a few.

Extensive books have been written about the need for these type of thresholds in the management of wildlife and the ESA listing process from agency partners that work with the USFWS.[7]  This type of foundational structure is critically necessary to avoid conclusions that lack factual basis, such as the recent management of bumble bees as fish in California. These types of conclusions simply must be avoided, no matter how well intentioned they are, as the erosion of public support for species management that can result from decisions that cannot be factually defended is significant.

Our concerns are compounded by the fact the SSA goes into great detail around the scientific conflict that has recently occurred around what is the proper species designation and how many subspecies there are. Most of these decisions have been made in the last 3-5 years. This type of decision reflects exactly the type of uncertainty we believe still persists it the insect listing arena and simply must be resolved with some level of scientific certainty before listing.  Given the significant conflict around what species this falls into and how many subspecies there actually are, the hybrid issue is very significant and completely overlooked in the SSA.  What is the status of these hybrids as the SSA states they are not part of the species to be listed?   This is a serious concern as without a high-quality description of the species, we are unsure how any management of the species can occur.

2c.  Best available science concludes that management may not be possible if there is intrinsic uncertainty in the process that cannot be identified accurately.

The Organizations are very concerned that the species can’t be described with sufficient accuracy to list the species.  This type of foundational uncertainty for a listing can have major impacts throughout the management process. We are very concerned about these unintended impacts of the listing.  Extensive concern about the proper process to address all forms of uncertainty in the listing process have been expressed by wildlife management experts in their efforts to quantify and manage uncertainty in wildlife management efforts. This concern was recently summarized as follows:

“Unfortunately, ecological systems are enormously variable at just about every scale that we study them (Holling, 1973). This variability has numerous sources and, collectively, they contribute to what may be known as ‘uncertainty’. In recognizing the role of uncertainty, it is important to recognize that this may arise both as an intrinsic property of the system as well as a nuisance through inadequate data or observation. In terms of intrinsic sources, for example, spatial variability results from variations in conditions from place to place (Tilman & Karieva, 1997), while temporal variability similarly results from variations in systems through time (Huston, 1994). On the other hand, the measurements of the system may contain inaccuracies. For instance, observational variance is a consequence of our inability to perfectly measure systems, instead relying on sampling in order to build up a picture of the dynamical properties of the system (Dennis et al., 2006; Freckleton et al.,2006).”[8]

Similar concerns around the uncertainty of research and forecasting processes have been the basis of analysis of decades of research and theory development in the ESA realm. Similar concerns have been expressed as early as the 1980s as follows:

“Complexities of nature, obscurity of many species’ life history, and changing  environmental conditions make it difficult to assess the accuracy of extinction risk models. Proposals to list very small populations with known threats and unequivocal population status are the exception today in the coterminous United States. There are few, if any, of the California condor-like species that are not already listed. Many of the species we evaluate now are wide-ranging, with little information available on their life histories. Some of these species have population trend data suggesting declines, but populations may remain in the tens to hundreds of thousands of individuals.”[9]

The Woods article above identifies three species where identification of the species is challenging and the intrinsic problems this creates for management decision making.  Almost 50 years later, resolving this type of uncertainty remains a challenge. The British Ecological Society recently proposed proposes to manage this type of systemic uncertainty into two large classifications to try and mitigate the impacts of uncertainty in wildlife management.  These two classifications are as follows:

“Broadly speaking, it is useful to distinguish intrinsic uncertainty (analogous to the variance in model parameters in an ecological or statistical model) from knowledge uncertainty (by analogy with the measurement error or lack of data in a model). The reason for making the distinction between these two types of uncertainty is important: one is a property of the system itself, while the other is caused by a lack of understanding or data. The two are interactive, and this is perhaps the greatest challenge to making robust predictions in management. If the management outcomes are uncertain both in terms of intrinsic variability and knowledge then they will be largely unpredictable. In this circumstance, it is necessary to question the recommendations given, as well as to consider whether the approach to prediction is the correct one.”[10]

The Sutherland book then undertakes an extensive discussion of possible ways to address informational uncertainty and create a model that provides predictable results that may support a management decision. Given the description of the challenges being faced in the management of the Silverspot butterfly, the Organizations submit that the inability to accurately describe the species falls into the category of intrinsic uncertainty and may not be resolvable.

The Sutherland book further continues and provides an example of what can happen when these factors are not accurately addressed in management decision making. This example is as follows:

“As an example, in the UK there was a programme for government- hired shooters to exterminate ruddy ducks (Oxyura jamaicensis). During the cull, coot (Fulica atra), black-necked grebe (Podiceps nigricollis), common pochard (Aythya ferina) and common scoter (Melanitta nigra) individuals were also shot (Henderson, 2009). This resulted in part from inadequate communication with shooters (Henderson, 2009), who were not ornithologists and failed to distinguish between species. Consequently, there is a possibility of confusion, with procedures subsequently being developed to ensure that confusion is minimised.” [11]

Other researchers have addressed uncertainty in species management processes, modeling of population trends and listing efforts for easily identifiable and describable species as follows:

“Hence, accurate information on population trends is lacking for most species. These challenges to understanding sustainability of elasmobranch fisheries and using precautionary approaches for their management are compounded further by multi-species fisheries and poor species-specific monitoring (Barker and Schluessel, 2005; Lack and Sant, 2009; Dulvy et al., 2017) …. Recently, there has been increasing awareness of the importance of considering multiple sources of uncertainty in demographic parameter estimation and risk assessment (Simpfendorfer et al., 2011; Corte´s et al., 2015; Jaiteh et al., 2017a). In addition, demographic modelling frameworks quantify the degree of caution that should be exercised for their sustainable management and can have major implications for the conservation of species (Caswell et al., 1998; Corte´s, 2002; Corte´s et al., 2015). The two main sources of uncertainty that can be easily accounted for in a modelling framework are measurement error (or trait error), stemming from uncertainty in the empirical estimation of a life history parameter (Harwood and Stokes, 2003; Quiroz et al., 2010), and coefficient error, which is derived from the uncertainty in the values of the coefficients of a model (e.g., uncertainty around the intercept of a linear model, see Quiroz et al., 2010). While multiple sources of uncertainty can be readily accounted for in stock assessments, this has not happened to the same extent in data-poor situations, particularly in commonly used unstructured models (for a recent example see Jaiteh et al., 2017a).” [12]

The description of species and forecasting of population trends has been a challenge in the listing process since the ESA was adopted.  It is well documented that failures to resolve the basic challenges can cause significant problems with management efforts undertaken subsequently. The Organizations submit that exactly these types of challenges will plague any effort to manage the Silverspot as proposed. The Organizations submit the uncertainty intrinsic in the current proposal is FAR greater than any addressed in these articles.  Without resolution of the intrinsic uncertainty resulting from the inability to describe the species, communication of information will simply be impossible.

This inherent conflict in describing the Silverspot could not be more apparent than is presented in the series of pictures from the SSA.

butterflies

The ability of the species to be identified as a single species from these pictures is exceptionally limited at best.  What is concerning is we must assume these are the best pictures available for the listing and most pictures will fail to provide anything close to this level of detail and quality.  This would represent the type of intrinsic uncertainty or observational variance uncertainty that is discussed as challenges to listing or management in the Review. This is type of uncertainty is a major problem that must be addressed in any management effort for a species as it is concluded when these types of issues are not able to be resolved the management outcomes will be largely unpredictable.

3a. Without a describable species, how is modeling and management of habitat undertaken?

The inability of the species to be accurately described and classified gives rise to a host of other problems in subsequent species management efforts, such as habitat identification or avoiding unintended management actions taken in the generalized habitat information already provided.  Without a good description how do we not have problems with the 2018 US Supreme Court’s unanimous Weyerhaeuser decision and the sufficiency of the listing and related petition under Rule 424.14.  While the USFWS recently withdrew the proposed definition of habitat required by Weyerhaeuser, this does not mitigate the legal requirements of the Weyerhaeuser decision. These challenges are insurmountable when the species cannot be accurately described or separated from other species that are not proposed for listing.

The Organizations are very concerned that the current documentation is highly theoretical in nature and far from a settled scientific model moving forward. The Proposal relies on some type of model or forecast for almost every aspect of the analysis, compounding risk of inaccuracy significantly.  The use of modeling in the ESA has been an issue that has been the basis of dozens of treatises and texts and is far from a resolved issue.[13] These reviews have consistently identified the need for the scientific community to provide legally sufficient basis for species management. This standard has been summarized as follows:

“Given the importance of maintaining biodiversity for both ethical and practical reasons- foe example to sustain environmental goods and services critical to human welfare (Hooper et al 2005)- it is imperative that the scientific community provide land managers with the knowledge and tools needed to meet their conservation mandate.”[14]

Other researchers have stated this standard in the management as listing of identifiable species, such as the Mexican gray wolf as follows:

“Policy-related uncertainty originated from contrasts in thresholds for acceptable risk and disagreement as to how to define endangered species recovery. Rather than turning to PVA to produce politically acceptable definitions of recovery that appear science-based, agencies should clarify the nexus between science and policy elements in their decision processes. The limitations we identify in endangered-species policy and how PVAs are conducted as part of recovery planning must be addressed if PVAs are to fulfill their potential to increase the odds of successful conservation outcomes.”[15]

These treatises also provide highly detailed discussions on the management of uncertainly in the assumptions and data in the species/habitat modeling process. Listing a species that is stable and only facing long term challenges is simply never recommended. Rather, listing a species based on a lack of information on the species is a failure of basic scientific processes around the modeling of any habitat areas for a species.  In  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 vigorously assert that the problems with modeling the species that cannot be described or scientifically defined accurately are compounded when applications of habitat designation standards are undertaken.  While we are aware the Proposal is not designating critical habitat, it is identifying habitat or range in the SSA which creates a myriad of problems by itself. It has been our experience that even when critical habitat is not identified for a species but habitat range is identified, many will attempt to use the modeled range as critical habitat in planning.  This is a problem. This problem is compounded by the fact that often the lack of critical habitat for a species is an issue that can be litigated for years. This could not be more exemplified than by the recent successful court challenge to the USFWS decision not to designate critical habitat for the Canadian Lynx. This decision comes down more than 20 years after the lynx was originally listed for ESA purposes.  Not designating habitat in the Proposal does not mitigate our concerns but rather compounds them as the last thing the Organizations want to participate in is decades of litigation on a species, we don’t present at threat too.

The challenge of modeling habitat is immense and only expanded when the species cannot be defined. Recent USFWS efforts have highlighted the habitat designation challenges for identifiable species 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.”

The concern of the scientific community around management of poorly defined habitat is not minor.  The mandate of applying best available science (“BAS”) 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 is the Organizations position that best available science should be consistently applied throughout the ESA. A few examples of the BAS 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 BAS 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. If the model does not accurately forecast or provide consistent results, the model is fixed and management action is not taken. 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” [16]

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.”[17]

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][18]

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.”[19]

 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.”[20]

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 species and 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 scientifically defensible 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. The Proposal would be a good example of the relationship of these types of challenges in the management of a possible species. Challenges are insurmountable in these discussions without accurate descriptions of the species and some type of analysis being available that is not forecast.

The Organizations believe a comparison to the facts around the listing of the Gopher frog which was struck down in the recent Weyerhaeuser Supreme Court decision and the current proposal will clarify our concerns about the poor resolution of the management of uncertainty. The gopher frog listing provided the following criteria for habitat which 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. [21]  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. The Proposal falls victim to the same overly broad analysis failure as there is no meaningful description of the species that can clarify what is a Silverspot butterfly and what is not.  Hybridization of the species compounds this failure.

Our recommendation for the Proposal is the same as reached by the Court in Weyerhaeuser, the decision cannot be supported without further analysis.

3b. The inability to define habitat as led to conclusions that simply cannot be factually or legally defended in the Proposal.

This question is more than timely with the recent withdrawal of the habitat definition by the service, the uncertainty of the definition expands risk.  Regardless of the final decision by the Service on the habitat definition, best available science still must be complied with. 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.[22]  We have attached a copy of this document to these comments as Exhibit “2”.

While we are aware the listing technically is not designating critical habitat, the listing will impact activities in area identified as range, and the failure to properly define habitat areas has led to conclusions regarding various challenges to the habitat areas.  The Organizations must express serious concerns about the arbitrary decision that habitat fragmentation as a threat to the species while pesticide usage is not.  Best available science outlines the significant overlap of the use of pesticides as a component of habitat fragmentation. Example would be the use of pesticides and its impacts on the species.   Proposed Rule provides:

“In this proposed rule, we will discuss only those factors in detail that could meaningfully impact the status of the subspecies. Habitat loss and fragmentation, human-caused hydrologic alteration, livestock grazing, genetic isolation, exotic plant invasion, climate change, climate events, larval desiccation, and collecting are all factors that influence or could influence the subspecies’ viability. Those risks that are not known to have effects on Silverspot populations, such as disease, predation, prescribed burning or wildfire, and pesticides, are not discussed here but are evaluated in the SSA report.”[23]

Conflict with this allocation of threats and best available science on the impacts of pesticides on insects is immediate.  This research has been summarized as follows:

“There is no doubt that pesticides can be enormously beneficial in both agriculture and  preventive medicine, for example to increase (the quality of) crop yields, to maintain healthy  livestock and to prevent the spread of diseases (Oerke, 2006; Cooper and Dobson, 2007;  Aktar et al., 2009; Benelli and Mehlhorn, 2016; Guedes et al., 2016). However, due care is  needed for their use in an effective manner. Not only do we need to carefully establish the  mode of action of pesticides, but also the effects of pesticides on both their intended targets  and non-target species. It is clear that where innocent bystanders of pesticides find their  natural habitat replaced or reduced by agricultural practices they are doubly affected (Potts et  al., 2016). One such group of insects are Lepidoptera which may comprise good indicator  species for the non-target impacts of pesticides. Our relationship with Lepidoptera is a  complex one. On the one hand they are the focus of considerable conservation efforts, predominantly butterflies (Brereton et al., 2011; Potts et al., 2016), but on the other hand 70% of agricultural pests are Lepidoptera, in particular many moth species and a few butterflies.” [24]

The Braak et al articles then continues its discussion of the significant impacts of pesticides generally in an urban setting as follows:

“Furthermore, we also need to consider the impact of non-675 industrial use of pesticides in gardens, parks and other recreation areas such as golf courses, 676 which are increasingly important in agricultural and urbanized landscapes (Colding and 677 Folke, 2009).”[25]

Similar research on monarch butterflies has expressed significant concerns about the impacts of genetic modifications designed to replace pesticides have on habitat and the species as a whole. These concerns are as follows:

“Habitat loss in the overwintering sites in Mexico and California is well documented (Brower et al. 2002; Ramirez et al. 2006), although no direct empirical link between declining overwintering habitat and monarch numbers exists. In addition, the growing use of glyphosate-tolerant genetically modified crops has reduced larval host plant (milkweed, Asclepias spp) abundances in farm fields  across United States and Canada. Increasing acreage of glyphosate-tolerant corn and soybeans are negatively correlated to monarch numbers, with the area of milkweed in farm fields in the United States declining from an estimated 213,000 to 40,300 ha (Pleasants & Oberhauser 2012).”[26]

The pesticide question is asserted to be resolved for some uses as follows in the listing:

“In S. n. nokomis range there is more haying and grazing than cropland, and as a consequence there may be less application of pesticides on or near colonies than in many parts of the U.S. but the amount and type of pesticide use near S. n. nokomis colonies needs to be studied. We currently have no evidence that mortality of the butterfly, bog violet, or native nectar sources have occurred from pesticide use and are not aware that it has currently reduced the viability of the species.”[27]

The Organizations assert this is problematic decision making process  for any effort.  The problematic decision making continues as activities that support agriculture are identified as threats, such as haying of fields and conversions of habitat for other agricultural activities is identified as a threat to the species as habitat fragmentation. We question how this distinction can be justified with any scientific or factual basis.  This conclusion simply lacks any factual basis whatsoever, and would seem to be made in direct conflict to the conclusion that habitat fragmentation is a priority threat to the species.

We are very concerned that habitat fragmentation is often associated with trail usage and other forms of recreation, as this has occurred with other butterfly species.[28]  The Organizations are unable to identify any research supporting a conclusion that  recreational activity as a threat to the species.[29] Given the arbitrary application of existing research in the manner proposed in the listing, excluding any activity associated with urbanization or fragmentation of the habitat areas will be difficult to impossible. This lack of an established relationship between the challenge and management would be seen as a basis for management, and this is a connection we are unwilling to make.

4. Asserting habitat fragmentation is a primary threat to the species without identifying habitat is factually and legally indefensible.

It is with the above structure of scientific and legal analysis, the Organizations submit that the listing of species that eludes accurate description and relies on habitat/range that is modeled is problematic at best.  This concern extends to the determination that habitat fragmentation is a major threat to the species but no habitat is identified.  This seems to be indefensible as a matter of fact and law as this should never happen. How can you determine habitat is fragmenting without identifying what is habitat?  Identifying what is habitat would be a critical first step in the determination that the habitat is fragmented. The SSA provides the following species range map:[30]

Species Range Map

The SSA identifies the questionable management history of the identification of range and habitat and asserts this problem has been resolved as follows:

“Based on the best available scientific information per recent genetic work, the range of S. n. okomis is now better understood than it has been in over a century (Cong et al. 2019). As stated in section 2.3, the range now excludes the Great Basin and Southwest Utah Mountains area (Population 2), the Uinta Mountains area (Population 3), and the Chuska Mountains area (Population 9) for which inclusion in the S. N. okomis range was previously uncertain (Selby 2007, Figure 3, p.11 and p.14). Genetic mixing between the subspecies appears to occur not far from the known locations of identified subspecies (Cong et al., 2019, p. 21).”[31]

While the Organizations commend the development of greater understanding of the species, this provision does not resolve questions but creates them.  Is the current analysis better than previous? Probably.  Is the current analysis legally sufficient to support a listing?  Definitely not.

The Organizations must raise concern over a foundational conflict in the range map with regard to elevation.  Under the SSA the following parameters for elevational habitat for the species is provided:

“S. n. nokomis is known to occur from roughly 5,200 feet to just over 8,300 feet in elevation (Scott Ellis and Mike Fisher, pers. comm., 2020). However, one observation is from 9,250 feet near Silverton, Colorado (SCAN 2020).”[32]

The application of this standard even generally immediately causes huge problems for the mapping of the range, as large tracts of land in the range area are more that 50% higher in elevation than the upper threshold of the habitat range provided in the listing.  This mapped Range is one of the largest high-altitude areas in the country but this conflict is never even addressed.  This is a foundational problem.

The SSA then proceeds through a HIGHLY sight specific discussion of possible impacts to habitat at 19 different locations ranging in size as small as two acres. A large habitat is 500 acres. Many of these populations are identified has genetically isolated as they are more than 30 miles from other populations.  If they are genetically isolated, how has that occurred? How was it determined that the species range only 30 miles?[33]  What was the range of the population previously? How was it determined the species range from Gypsum, Colorado to Albuquerque, New Mexico, which is a distance of more than 400 miles?   It is again a concern that these site-specific habitat areas are modeled, such as the Montrose/San Juan population, bringing in all the modeling concerns we have identified in other areas of these comments. While we understand species range and species habitat are different standards, we have to question the sheer scale of the difference of these determinations in the listing.  Is habitat fragmentation identified on the entire range or the 19 sites?  These are critical decisions for our interests as there will be impacts to the entire range despite the analysis addressing at most less than 10,000 acres and possibly down to 500 acres based on the assumption the butterfly only travel 30 miles.

Even more problematic is the fact that habitat fragmentation is identified by weighting some factors of habitat fragmentation while specifically excluding other factors often associated with habitat fragmentation. This questionable decision making is outlined in the Summary of proposal for habitat fragmentation as follows:

“We found habitat loss and fragmentation (Factor A), incompatible livestock grazing (Factor A), human caused hydrologic alteration (Factor A), and genetic isolation (Factor E) to be the main drivers of the subspecies’ current condition, with the addition of the effects of climate change (Factor E) influencing future condition. These stressors all contribute to loss of habitat quantity and quality for the Silverspot and for the bog violet, the plant on which Silverspot larvae exclusively feed. These threats can currently occur anywhere in the range of the Silverspot, and future effects of climate change are expected to be ubiquitous throughout the subspecies’ range. The existing regulatory mechanisms (Factor D) do not significantly affect the subspecies or ameliorate these stressors; thus, these stressors continue and are predicted to increase in prevalence in the future.”[34]

Again, the Organizations must question how such conclusions are reached.  We are very concerned that the failure to identify habitat areas, even if they are not provided protection, will lead to massive over application of concerns for the species in management. It has been our experience that often trails are thought to be a concern in this situation and this must be avoided.

Conclusions.

The Organizations must express serious concerns about the basic validity of the proposal on many levels, from the inability of the species to be physically described, to the highly theoretical nature of much of the analysis of threats. As we have outlined, many of these issues are inherent in attempts to list or manage an insect species.  Best available science has identified the resolution of the problem is statutory and should not be the basis of listing that are not able to resolve these issues.  We must ask what has changed when compared to previous determinations that the Silverspot butterfly species and various DPS was not basis for listing. This concern is highlighted by the fact the listing documents undertake a significant discussion about what the proper species classification is for the Silverspot.  The current proposal clearly identifies that the species population is stable and is expected to remain so for the foreseeable future, which means there is time to more completely understand the species, describe and define the species and then address the challenges it is facing.

The highly ambiguous nature of the listing regarding many issues ranging from: 1. The mere definition and description of the subspecies; 2.  The inclusion and exclusion of many factors such as exclusion of pesticides as a possible impact to the species; and 3. Inclusion of habitat fragmentation as a threat without addressing the wide-ranging nature of habitat fragmentation. Again, the concept of best available science and the legal requirements of the Endangered Species act require resolution of these issues.  Identification of systemic uncertainty and resolving is the basis of significant discussion and these are challenges that can be managed.  The lack of science on these issues is not best available science but a lack of science.

The lack of clarity on these basic issues will lead to huge confusion for the public and guidance that lacks clarity in the recovery plan.  There is a significant lack of analysis and highly theoretical nature of analysis of possible recreational impacts on butterflies generally which results in conclusions that are horribly internally conflicting.  The only recreational activity even mentioned in the proposed rule is collecting and this is found to be a minimal threat. The Organizations are intimately familiar with decisions and efforts where one agency explicitly and clearly states recreation is not an issue for the species and there should be no change to management of recreation due to the listing and subsequent efforts by other agencies place significant restrictions on recreation. This is exemplified by Wolverine listing efforts, Mexican Owl listings and far too many others to address.  This type of concern explodes when the listing decision is as unclear and conflicting as the Proposal is.  This type of foundational structure is critically necessary to avoid conclusions that lack factual basis, such as the recent management of bumble bees as Fish in California.[35] Proposal is totally premature as basic questions are not addressed and may also lead to conclusions and management that lack any factual basis and undermine public support for species management more generally.

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

Sincerely,

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

Chad Hixon
Executive Director – TPA

 

 

[1] For a more detailed discussion of what should be a deeply concerning issue please see: Bees are ‘fish’ under Calif. Endangered Species Act – state court | Reuters

[2] See, Lugo; Insect Conservation under the Endangered Species Act; Journal of Environmental Law; Vol. 25:97 (2006) at pg. 97.

[3] See, Entomological Society of America; ESA Position Statement on Threatened and Endangered Insect Species: Protecting insects is vitally important to the United States.  A full copy of this document is available here: ESA-Position-Statement-on-Threatened-and-Endangered-Insect-Species.pdf (entsoc.org)

[4] See, Young, J., Mitchell, C., & Redpath, S. (2020). Approaches to conflict management and brokering between groups. In W. Sutherland, P. Brotherton, Z. Davies, N. Ockendon, N. Pettorelli, & J. Vickery (Eds.), Conservation Research, Policy and Practice (Ecological Reviews, pp. 230-240). Cambridge: Cambridge University Press. doi:10.1017/9781108638210.014 at pgs. 231-233.(emphasis added)

[5] See, US Fish and Wildlife Service; Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Silverspot Butterfly; Federal Register; Vol. 87, No. 86; May 4, 2022 at pg.26330.

[6] See, Hammond, P.C. and D.V. McCorkle. 1983(84). The decline and extinction of Speyeria populations resulting from human environmental disturbances (Nymphalidae: Argynninae). Journal of Research on the Lepidoptera 22:217-224.

[7] See, Nichols et al; Thresholds for conservation and management: structured decision making as a conceptual framework; Patuxent Wildlife Research Center; US Geological Service; 2014

[8] See, Freckleton, R. (2020). Conservation decisions in the face of uncertainty. In W. Sutherland, P. Brotherton, Z. Davies, N. Ockendon, N. Pettorelli, & J. Vickery (Eds.), Conservation Research, Policy and Practice (Ecological Reviews, pp. 183-195). Cambridge: Cambridge University Press. doi:10.1017/9781108638210.011 at pg. 183.  A complete copy of chapter 11 of this review is included with these comments for your convenience as Exhibit “1”. (Hereinafter referred to as the “Sutherland Book” for purposes of these comments.

[9] See, Woods et al; Uncertainty and the Endangered Species Act: Indiana Law Journal volume 83:529 at pg. 531.

[10] See, Sutherland at pg. 185.

[11] Supra note 10.

[12] See, Pardo, S., Cooper, A. B., Reynolds, J. D., et al. 2018. Quantifying the known unknowns: estimating maximum intrinsic rate of population increase in the face of uncertainty. ICES Journal of Marine Science, 75, 953–963.

[13] See, Millspaugh et al: Models for planning wildlife conservation in Large Landscapes; Elsiver Press 2009 at pg. 51.

[14] See, Millspaugh et al; Note #10 at pg. 51.

[15] See, Carroll et al; Biological and Sociopolitical Sources of Uncertainty in Population Viability Analysis for Endangered Species Recovery Planning; Scientific Reports; July 12, 2019

[16] See, Wikipedia.com; definition of scientific modeling @ https://en.wikipedia.org/wiki/Scientific_modelling accessed September 1, 2020

[17] See, Zwilling, Martin: 7 Steps for Establishing the Right Business Model; January 30, 2015.

[18] See, https://www.wikihow.com/Make-a-Mathematical-Model

[19] See, Orloff & Strong; Models for planning wildlife conservation in large landscapes; 2009

[20] See, Millspaugh et al; Models for Planning Wildlife Conservation in Large Landscapes, Elsiver Publishing 2009 at pg. 5. Internal citations omitted

[21] 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.

[22] A copy of this review is available here: https://www.sciencedirect.com/topics/earth-and-planetary-sciences/wildlife-habitat

[23]See, US Fish and Wildlife Service; Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Silverspot Butterfly; Federal Register; Vol. 87, No. 86; May 4, 2022 at pg. 26324

[24] See, Nora Braak, Rebecca Neve, Andrew K. Jones, Melanie Gibbs, Casper J. Breuker;  The effects of insecticides on butterflies – A review; Environmental Pollution, Volume 242, Part A, 2018, Pages 507-518,

[25] See, Braak note 21 at pg. 515.

[26] See, Braak et al; note 22 at pg.

[27] See, SSA at pg. 29.

[28] See, Callippe silverspot butterfly – Wikipedia

[29] The Organizations are aware of limited highly theoretical research that indicates the issue needs more research. Given the inconclusive nature of the efforts it is not discussed here.

[30] See, SSA at pg. 12.

[31] See, SSA at pg. 12.

[32] See, SSA at pg. 18.

[33] For a detailed discussion of the uncertainty inherent in these processes please see: Schultz et al; Does movement behaviour predict population densities? A test with 25 butterfly species; Journal of Animal Ecology 2017, 86, 384–393

[34] See, US Fish and Wildlife Service; Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Silverspot Butterfly; Federal Register; Vol. 87, No. 86; May 4, 2022 at pg.26330

[35] See, Bees are ‘fish’ under Calif. Endangered Species Act – state court | Reuters

Continue Reading

Keep Routt Wild – Halt the RNF Rainbow Family Gathering

U.S.D.A. Forest Service
Rocky Mountain Region
Attn: Frank Beum, Regional Forester
1617 Cole Blvd
Lakewood, CO 80401

Rainbow Family Letter

Dear Mr. Beum:

The Trails Preservation Alliance (TPA) calls on the U.S. Forest Service, Colorado Parks and Wildlife and Routt County to stop the Rainbow Family gathering planned on national forest lands in Adams Park this July 1-7.  As many as 30,000 could gather in Routt County for this unauthorized and unpermitted activity in the midst of elk calving and critical wildlife and riparian habitat.  The TPA is a volunteer organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve multiple-use recreation.

The Forest Service has acknowledged that large group gatherings have significant adverse impacts on forest resources and public health and safety. These include the spread of disease, pollution and trash, soil compaction and damage to archaeological sites, riparian areas and wildlife.  Species listed under the Endangered Species Act such as the gray wolf and Canada lynx could also be adversely affected by the hordes.  At a prior gathering near Paonia in 1992, over 15,000 people with some 4,500 dogs parked over 4,000 vehicles on meadows within the national forest.  Imagine how this works with a “leave no trace philosophy.”   There are no public restrooms or porta potties at these gatherings.

As a steward of the National Forests, the Forest Service has a duty to minimize resource impacts.  This gathering runs afoul of the forest plan and surely violates state and local public health laws and regulations for (a) The sufficiency of sanitation facilities; (b) The sufficiency of waste-disposal facilities; (c) The availability of sufficient potable drinking water; (d) The risk of disease from the physical characteristics of the proposed site or natural conditions associated with the proposed site; and (e) The risk of contamination of critical water supplies.  As prior gatherings have shown, it also poses a very real danger to public safety.

As a result, TPA has encouraged its members and the public to speak out against this environmental catastrophe and to sign and support the petition of Keep Routt Wild to prevent it:  Petition · Halt the Routt National Forest Rainbow Family Gathering Now · Change.org.

The TPA ardently supports multiple uses of public lands including motorized access to roads and trails.  In fact, Colorado’s off-highway vehicle fees are the primary funding source for trails maintenance projects that benefit all users–motorized and non-motorized alike.  TPA associates are obligated to follow the ever-complex and restrictive myriad of federal laws and regulations governing their recreation and access to national forest and Bureau of Land Management (BLM) lands.  It is unwise, unfair and unlawful to hold the vast majority of the recreating public to different standards.

 

Sincerely,
Chad Hixon
Executive Director
Trails Preservation Alliance

CC:
The Hon. John Hickenlooper
The Hon. Michael Bennett
The Hon. Lauren Boebert
Dan Gibbs, Director, Colorado Dept. of Nat. Resources
Heather Dugan, Acting Director, Colorado Parks and Wildlife
Routt County Board of Commissioners
Bill Jackson, U.S. Forest Service, Rocky Mountain Region
Jason Robertson, U.S. Forest Service, Rocky Mountain Region
Russ Bacon, Medicine Bow Routt National Forest Supervisor
Michael Woodbridge, Hahn Peaks Bears Ears District Ranger
Mary Bedwell, Medicine Bow Public Affairs

Continue Reading

Moab Camping Management

 

Moab Camping Management & Wildlife Report – RWR, TPA, CORE & COHVCO
Labyrinth Rims Camping Proposal – ORBA, UFWDA & One Voice
Utah Rims Camping Proposal – ORBA, UFWDA & One Voice

 

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

RE:
Managing Camping within the Two Rivers SRMA (DOI-BLM-UT-Y010-2021-0096)
Managing Camping within the Utah Rims SRMA (DOI-BLM-UT-Y010-2021-0095-EA)
Managing Camping within the Labyrinth Rims/Gemini Bridges SRMA (DOI-BLM-UT-Y010-2021-0094-EA)

Dear BLM Planning Team:

Please accept this correspondence from the above organizations as our official comments regarding the Two Rivers, Utah Rims, and Labyrinth Rims/Gemini Bridges camping proposals. Most campsites in the Two Rivers planning area are accessed by river, but some are accessed by motor vehicle, and this river-canyon setting provides some of the highest-quality camping available to motorized recreationists. The Utah Rims SRMA and the area southwest of there to Cisco provide a high concentration of motorized trails (especially singletrack) and convenient-yet-scenic campsites. The Labyrinth Rims / Gemini Bridges SRMA, including the north extension to Green River, contains many premiere motorized trails and campsites. Although we recognize the need to more actively manage camping in these areas, the process warrants more public participation and guidance to ensure that a range of quality camping opportunities remain plentiful.

1. Background of Our Organizations

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

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

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

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

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

2. Introduction

We appreciate the BLM’s Moab Field Office (MFO) for taking the initiative to plan for dispersed camping However, we strongly urge the BLM to further analyze camping use, propose specific sites, and solicit more public input before limiting dispersed camping to designated sites. The size of these planning areas1, effects on neighboring areas (BLM, other public lands, SITLA, and private property), and need for a greater range of alternatives call for a complete plan, whether in the form of a more robust Environmental Assessment (EA) or an Environmental Impact Statement (EIS).

In addition the Draft EAs are presented as camping plans, however, they include proposed restrictions that make them travel management plans (TMPs) and wilderness-characteristics preservation plans. Even if the camping plans close only those routes that were not designated open to begin with, those routes were never analyzed for designation in the 2008 RMP by virtue of their short length, making these camping plans the first opportunity to analyze them and provide for public comment. The camping plans need to state explicitly in the title, introduction, and body of each document that the scope encompasses all three of these planning goals.

That said, we support the other three proposals (requiring a portable toilet, fire pan, and bringing one’s own firewood instead of cutting/gathering), and suggest establishing those supplementary rules without delay2. In fact, the supplementary rules could apply to a larger geographic area3. However, we take issue with many other aspects of the Draft EA’s lone action alternative, and call upon the BLM to widen and deepen its analysis. In the interim, the Organizations and others can assist in education and enforcement to deter driving or even parking outside of truly barren surfaces, whether for camping or other purposes.

3. Benefits of Designating Campsites

The MFO’s 2008 RMP attempts to limit vehicle-based camping simply by requiring vehicles to stay on routes designated open by the TMP. Unsustainable results may stem from several problems, including that:

  1. The BLM and its partners have not widely communicated this TMP restriction in the context of camping,
  2. Many visitors are accustomed to adjacent field offices and USFS districts allowing vehicles to park anywhere within a certain corridor of designated routes for the purpose of camping,
  3. The TMP generally has overlooked routes like camping spurs that are under a hundred-yards long so, in lieu of designated spurs, the camping ethic has been to park on any existing spur,
  4. New spurs created by those who assumed they could park within a corridor are then further established by those who are merely trying to follow existing spurs,
  5. Non-vehicle aspects of camping such as tents and kitchen areas have created barren ground that essentially extends the existing spur, and
  6. Camping spurs have been inadvertently followed by motorized recreationists who are just trying to stay on the designated route, which sometimes leads to further spur proliferation.

All of these problems would be solved simply by designating the camp spurs and roughly defining the boundaries of where vehicles can park (and where campers can set up a tent, kitchen area, etc.), so we support limiting dispersed camping to designated sites.

4. Meaningful Public Involvement

A complete plan should include full transparency and input from the range of recreationists rather than token outreach and administrative decree. The Draft EAs state “Following the establishment of Supplementary Rules, campsites would be chosen for designation following an interdisciplinary team process. Existing dispersed campsites would first be inventoried.” We take issue with relying solely on an interdisciplinary team process without the public input necessary to ensure that all stakeholder perspectives are represented as required. Under “Public Involvement,” the Draft EAs state:

“During preparation of this EA, the public was notified of the project by posting on the BLM’s ePlanning website on August 9, 2021. The BLM received an email from one member of the public as a result of this posting who expressed his concern and asked for answers to some questions, which were supplied via email. The BLM also received a telephone call in support of the Proposed Action.”

One email and one phone call from members of the public, during a period of peak summer travel, hardly constitutes a cross-section of public opinion.

Further, we have specific concerns about the proposed interdisciplinary team process, as demonstrated by a number of unsupported statements in the Draft EAs regarding visitor use, wildlife and other resource impacts. One of the most disconcerting aspects of the Draft EAs is their highly speculative assessment of threats to wildlife, that in effect, elevates hypothetical threats from recreational use to the level of worst-case scenarios that require new restrictions. A full public process would ensure that unsupported statements are vetted and either strengthened or rejected to reach the best decision.

5. Supporting Data

The Draft EAs rely upon surmise and opinions, rather than data, to justify a number of proposed actions, stating:

“…the MFO hosts approximately 3 million visitors per year and a substantial, but unknown number, of these visitors wish to camp. Visitation to the Moab BLM has increased over the last ten years, and dispersed camping pressures have increased commensurately as have the resource impacts, particularly in the last five years.”

However, the “3 million” figure likely refers to visits rather than visitors. Since the same individual may make many visits to the MFO in a given year, the number of visitors is likely a fraction of 3 million. Behind its numbers, the Draft EAs present no data and quantitative analysis to support the proposed action of restricting camping and public access to 164,921 acres of combined planning area. More specifically, they don’t provide evidence of:

  1. An increase of dispersed camping in the planning areas (expressed as the annual percentage increase in camping nights or sites),
  2. Locations where this increase in dispersed camping has occurred, and
  3. Quantified impacts to any “resources such as soils, floodplains/wetlands, vegetative resources, wildlife habitat, cultural resources, paleontological resources, recreation opportunities, and scenic values.”

Without this data, especially without a basic inventory of camping sites and their use in the first place, the BLM is basing its proposed action upon surmise and opinion. Therefore, the BLM is putting the “cart before the horse” in proposing these Draft EAs without clearly documenting need. A complete plan should inventory in detail the campsites, resource conflict areas, and other necessary data to support a range of alternatives and measured analysis.

6. Specificity of Campsites

To justify the need for camping restrictions and solicit meaningful public input, the BLM’s proposal should show a thorough inventory of the existing campsites and a proposal of whether each one would be designated open or closed. The MFO may have previously designated campsites without this public review, but it was for smaller planning areas with much fewer existing campsites.

The Draft EAs state “The exact number of dispersed campsites within the SRMA is not known with certainty, but observation shows that dispersed camping has increased over the years.” Yet they present no data to show that dispersed camping has increased, where it has increased, and where it has increased in sites that would represent a demonstrable threat to the continued existence of any of the species mentioned in the plans. Absent an inventory of dispersed campsites and their presumed overlap with resources, including wildlife resources, the Draft EAs are founded upon speculation.

Such an analysis would be easily accomplished with a combination of publicly available satellite imagery in combination with field surveys to validate results. Changes in usage over time in campsites may be quantified by comparing historical vs. recent satellite imagery, either manually or with change-detection software. The degree of use can be estimated based on ease of access (i.e. distance from road/trailhead, size of disturbed area, presence of firepits, and other variables). Overlapping existing resource layers with a map of dispersed campsites would be a straightforward GIS exercise that would provide a transparent and quantitative basis for proposed actions.

Other BLM field offices have allowed the public to comment on campsite inventories and designations of specific sites that were dispersed and free of any user fees. We understand that future proposals to collect fees (whether for campgrounds or dispersed sites) would trigger additional planning, but site-specific public input is warranted now, as well-over a hundred sites may be designated open or closed. Granted, some of the BLM’s existing parameters will close sites with little debate, but other sites are more complex. The MFO may have done a good job previously designating campsites on a smaller scale, but when it comes to assessing well-over a hundred sites, the public would provide valuable insight. Assessing the current conditions and describing the proposed actions in order to analyze the impacts are not only fundamental tenets of NEPA, they also yield a smarter plan. Plus they garner more buy-in, which could be particularly helpful when blocking off campsites in remote areas.

7. Providing for the Projected Use

If current use levels are unsustainable, that’s only because the current camping rules and lack of communication have been a poor fit for high use levels in this high-desert setting. However, merely by designating campsites and defining their boundaries, the planning areas could easily handle current use levels and in fact some projected growth. The proposal should aim to designate enough campsites to accommodate this growth, as it will ensure the availability of sites, thus increasing compliance.

8. Diversity of Campsites

The proposal should identify different kinds of camping to ensure that campsites are designated to provide a range of opportunities. Some camping is focused on convenience or socialization, and can be satisfied by almost any site that’s near a main road. Other camping is more focused on recreational activities, so it should be located near the recreational destination, plus some scenery and probably ample room for an RV or group of vehicles. Yet other camping is more focused on the setting, so it should view the best scenery, and sites should be more spread out for solitude. Even when it comes to activity-focused camping, providing significant space between sites can prevent conflict between campers by reducing impacts like dust, sound, and lights.

9. Coordination with Developed Campgrounds

The planning areas encompass many developed campgrounds, and several more have been approved for development. This proposal should specify and invite public comment on the approximate buffer distance between developed campgrounds and dispersed campsites. Further it should specify and invite public comment on the locations of potential campgrounds so that future development can be considered when designated dispersed campsites.

10. Coordination with Trails

We appreciate the proposal’s aim to avoid designating campsites in a way that would negatively impact recreational trails, specifically that “Limiting dispersed camping to designated sites would allow the BLM to place campsites in locations that would not cause deleterious impacts to the recreational experience of those attempting to enjoy their public lands. For instance, designated campsites would not be placed within view of popular biking/motorcycle trails…” Indeed, designating sites adjacent to trails can lead to social trails and other management headaches, plus potential conflicts for both the campers and the trail users. In some cases, even though the trail predated the campsite, it may be best to relocate the trail. For example, campsites have encroached Overlook Loop (motorized singletrack along the rim of Westwater Mesa in Utah Rims SRMA), but those sites could be designated open by relocating those segments of Overlook Loop down below the rim. The rim is gentle enough for the trail to dip below it and, even if it lowers the scenic quality of the trail, other segments of the trail will remain quite scenic. One way or the other, providing distance between campsites and motorized routes will enable the sites and routes to be enjoyed fully without having to resort to the placement of constraints upon either one.

11. Affordable Housing

The increasing cost of housing, especially for tourism employees, has become a major issue for communities like Moab. More housing options can be provided on private and SITLA properties in Spanish Valley, so it’s not the BLM’s responsibility to solve this problem. However it is the BLM’s responsibility to avoid inadvertently making private-lands housing more expensive by making public-lands camping less available. It’s the BLM’s responsibility to accommodate camping, from the most primitive sites to developed ones with toilets and shade structures. Otherwise off-grid camping would be displaced to private lands, competing with other uses of private land, further increasing the cost of housing. This may not be the case in regions where public lands are scarce and private lands are plentiful but, in the MFO, BLM campsites should remain in the hundreds.

12. Economic Impacts

The proposal should analyze economic impacts to the region. As the campsites become more organized, the activity may become less burdensome to local services. Campers often bring significant revenue to nearby towns as they resupply and sometimes even visit restaurants, entertainment venues, etc.

13. Extent of Planning Areas

If the MFO will invite public review of campsite inventories and designations of specific sites, then the boundaries for two of the planning areas should be expanded to encompass the full area of comparable terrain that is desirable for camping. Specifically extend the Labyrinth Rims/Gemini Bridges planning area from Tenmile Point Road north to the outskirts of Green River, with the east boundary following the Blue Hills. Likewise extend the Utah Rims planning area from the Westwater Put-In Road southwest to the Cisco Boat-Launch Road, with the north boundary following the highways. These boundaries will exclude the relatively-barren shale soils where camping is less common and less concerning in regard to natural and cultural resources. These boundaries will include the more rugged and colorful formations where camping is more common and comparable to the current planning areas. They will include motorized

singletrack like Mel’s Loop and the Dubinky trail system surrounding White Wash, plus Crystal Geyser 4WD trail, which could benefit from the proactive planning of dispersed campsites.

14. Extent of Restrictions for Wildlife

The Organizations welcome camping restrictions that are necessary to maintain healthy populations of wildlife. However we are unconvinced that the extent of proposed restrictions is warranted, resulting in the closure of many well-established and high-quality campsites unnecessarily. Upon careful review of the Draft EAs, the Organizations developed a wildlife report (below) to refine your guidelines, ensuring both sufficient habitat and camping opportunities where compatible.

15. Additional Comments to Consider

We generally support the detailed comments from our partners at ORBA and the other national OHV groups, so we’re submitting them (enclosed) as part of our own comments, and hope you will carefully consider them to improve your proposal.

16. Conclusion

NEPA requires analysis of the affected environment and impacts to the affected environment, including impacts to the human environment. Such analysis of a proposal to limit camping across a large and popular area is simply impossible without identifying the sites to which camping would be limited. Consequently the Draft EAs fail to account for the negative impacts that concentrating use would cause on camping in the designated sites and reducing use would cause on surrounding areas. Such impacts can be mitigated, but only if the proposal first identifies the campsites and a range of alternatives, as required by NEPA.

In the three planning areas, it would be appropriate to limit camping to designated sites so long as the BLM provides significantly more analysis and opportunities for public comment. The additional work will be worthwhile to designate campsites open or closed through a thorough process. In the meantime, negative impacts from camping can be greatly reduced by advancing the other three proposals (requiring a portable toilet, fire pan, and bringing one’s own firewood), plus more widespread education that vehicles may not park off-trail in order to camp.

Sincerely,

Clif Koontz Executive Director Ride with Respect

Chad Hixon Executive Director Trails Preservation Alliance

Marcus Trusty President/Founder Colorado Off Road Enterprise

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

1 The Labyrinth Rims/Gemini Bridges planning area has 120,037 acres of BLM land and 19,000 acres of SITLA property, plus Canyonlands National Park immediately south. Adding Utah Rims/Sunshine Wall (16,704 acre) and Two Rivers (9,180 acres) totals 164,921 acres (258 square miles), which comprises about 9% of the 1.8 million acres managed by the MFO and contains many of the most prized motorized trails in the region.

2 Requiring a portable toilet calls for working with partners to encourage the use of preferred equipment and best practices. The BLM and partners should also provide disposal facilities to avoid improper disposal or placing the burden on local businesses, parks, etc..

3 Wood collection should still be accommodated where appropriate, such as in the pine forests found at higher elevation.


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

RE: Managing Camping within the Two Rivers SRMA (DOI-BLM-UT-Y010-2021-0096) Managing Camping within the Utah Rims SRMA (DOI-BLM-UT-Y010-2021-0095-EA) Managing Camping within the Labyrinth Rims/Gemini Bridges SRMA (DOI-BLM-UT-Y010-2021-0094-EA)

Wildlife Report

In this report, the “Organizations” will refer to the Trails Preservation Alliance (TPA), Ride with Respect (RwR), Colorado Off-Highway Vehicle Coalition (COHVCO), and Colorado Off Road Enterprise (CORE).

A. General Concerns

1. Buffer Distances between campsites or travel routes and “sensitive species” are proposed without a sound scientific basis. 

The proposed, one-size-fits all buffers and restrictions are without a sound scientific basis. In justification of buffers and restrictions, the Draft Environmental Assessments (EAs) presume worst-case scenarios of what “may,” “could,” or “possibly” happen to the species in question, and thus a heavy-handed approach appears to be needed. In our view, this appears to be contrary to the scientific integrity guidelines, multiple-use mandate of the BLM, and the Information Quality Act.

From our discussions with subject matter experts, it also appears that some of the “science” cited in support of the impacts in the EAs are not as conclusive as they may appear to be. An expert examination of some of the most influential papers cited in the EAs reveals than some of the conclusions and management recommendations are regrettably based upon surmise and opinion, omissions and misrepresentations, examples drawn from species on other continents, and in one case, simulation modeling that is so bold as to make impact predictions 100 years into the future. (A review of the primary issues with key scientific papers cited in the EAs, especially on bighorn sheep, may be found below). The EAs also cite review papers that summarize the opinions of previous authors rather than actual results based upon data. And finally, some of the study findings appear to be simply taken out of context by the authors of the EAs. Because we understand the difficulty the BLM has working under deadlines with limited staff resources to digest complex, technical subject matter, we are happy to work with them to assist in developing scientifically defensible guidelines for protecting wildlife and other resources.

2. Accurate and Transparent Data is required for mapping the potential for human-wildlife interactions for different species. 

We are concerned that the point/line/polygon data layers used in BLM’s GIS analyses will be approximations of potential habitat rather than verifiable data on species occurrence(s). We are further

concerned that polygon layers could weight all habitat or nesting sites equally, regardless of when use was last documented. In other words, we have observed a tendency in some GIS analyses to extend polygons to capture and weigh all historical locations regardless of how many years ago they were made and how rarely the area is used (see Turner et al. 2004 and 2006 for examples specific to bighorn sheep). Therefore, we specifically request that the BLM utilize a transparent approach and verifiable location data in its GIS analyses so that validation by independent experts and qualified members of the public would be possible. Additionally, we propose that actual location data be plotted to delineate habitat rather than GIS-modeled potential habitat, to determine overlap with bighorn sheep, sensitive plant species, and/or raptor nesting locations.

We strongly discourage the use of arbitrary buffers, kernel functions plotted around location data from individuals (i.e. no 50, 90, or 95% kernels as these include large areas of unoccupied or non-habitat), and hypothetical movement corridors. We propose that the BLM employ the practice of using “smart buffers” that are tailored to the unique topography, likelihood of animal being present, type of species habitat or resource, and the sound and viewshed unique to individual campsites, roads, or trails that are immediately adjacent to or overlap with wildlife habitat. We encourage the BLM to utilize location data from recent years (i.e. the past decade), especially in the case of plants and raptor nests which can shift year to year among alternative nests.

The Organizations stand ready to provide unbiased, professional, subject matter experts to assist the BLM in preparation of criteria for tailored set-backs for species of conservation importance.

In this way, the BLM’s decisions will be based on defensible scientific information, and in conformance with the Information Quality Act. This is just one reason why the complete planning of a much more thorough EA or Environmental Impact Statement (EIS), including robust data and transparency, is needed to evaluate proposed actions and alternatives for the planning areas.

3. The Organizations support sound scientific research as a basis for decision making by land managers. 

We request that the BLM, and their NPS partners at Canyonlands and Arches national parks, make available to the public copies of current research proposal abstracts on species named in the EAs.

4. Wildlife habitat should be based upon verifiable data and not on modeled potential habitat. 

We are concerned that recommended buffer distances for wildlife in the EAs are designed for the convenience of GIS analyses without any data that demonstrate permanent abandonment of an area or reproductive failure by the species of bird or mammal in question would result from specific camping or travel route use.

We are also concerned that BLM decisions on camping, roads, and trails could be erroneously based upon the State of Utah’s “modeled habitat”, which is really potential habitat that includes physical characteristics rather than recent occurrence data, or “occupied habitat” that is a misnomer because it encompasses large swaths of non-habitat between areas of modeled habitat, rather than inhabited areas based upon recent, verifiable radio-collar and observational data. The problem with basing restrictions on the State’s “modeled habitat” and “occupied habitat” is that those will lead to unnecessary restrictions

on the recreational community while not benefiting bighorn sheep or other species. Therefore, we urge the BLM to only base their decision-making on inhabited habitat that is based upon recent, verifiable radio-collar and observational data.

B. Bighorn Sheep

1. A narrative is developed in the Draft EAs that wildlife populations are threatened from currently regulated recreational use. 

It is important that the BLM acknowledge that there is no demographic data that indicates a long-term decline in bighorn sheep inhabiting the La Sal/Potash/South Cisco population unit, or a decline in individual bighorn sheep fitness in this population that can be directly attributable to “human use.” It is therefore disingenuous that the Labyrinth Rims/Gemini Bridges EA attempts to link a study about bighorn sheep vigilance (Sproat 2012) without first demonstrating that there has also been bighorn sheep abandonment of an area and/or population-level decline, in order to justify new camping and travel route restrictions in the EA.

As an initial matter, all the cited studies in the EA on human disturbance of bighorn sheep cited in the study share the following important characteristics:

  1. None of the studies have shown a demonstrable, causal link between human activity and population decline, loss of individual fitness, or permanent habitat abandonment that is independent of other factors (i.e. predation, disease, livestock, drought, or permanent removal due to agriculture or development).
  2. The studies rely on speculation, that the worst-case circumstances they describe “could,” “may,” or “potentially” lead to population declines. The authors of these papers generally assume, without supporting demographic data, that any observed effect in flight distance or time spent foraging or scanning results in a decrease in individual fitness and ultimately population number.
  3. Anecdotes and opinions expressed by authors, often in the conclusions or management implications of their papers, have been erroneously cited by subsequent authors, as if these anecdotes and opinions were actual demographic results. This leads to a “snowball effect” of opinions, beliefs, and biases becoming uncritically entrenched in the “scientific literature” on human disturbance of bighorn sheep. In other words, if repeated often enough, anything can take on the appearance of truth.
  4. The authors fail to acknowledge that their study population has been repeatedly exposed to humans as predators either through hunting and/or repeated capture and handling (for radio-collaring, research, or translocation). Both of these activities can be expected to result in bighorns having increased wariness around humans. The simple fact is that bighorn sheep, like many other animals, habituate to predictable and non-threatening human behavior (i.e. they will habituate to humans if they are not hunted or otherwise pursued).

Despite dire predictions of what could happen in the cited studies, there is no compelling data to indicate that the La Sal/Potash population has declined, has abandoned habitat critical to survival, or that recruitment and adult survival have been compromised due to human disturbance from recreational use, including camping. Quite to the contrary, the State of Utah allows hunting of this population on BLM and State lands outside of Canyonlands and Arches National Parks. Furthermore, this population has also had bighorn sheep regularly captured and removed for translocations elsewhere for decades.

2. The BLM presents no data on bighorn sheep locations to indicate that they are habitat limited. 

We are concerned that some of the language in the EA and proposed conservation measures are built on the false premise that the resident bighorn sheep population is in decline or in imminent threat of decline due to recreational use. However, no data are presented in the EA that bighorn or wildlife populations are in decline, or that populations are declining as a result of recreational use of a road and trail network that has been in continuous use for over 50 years. The BLM presents no data on bighorn sheep locations to indicate that they are habitat limited.

3. The EA has an over reliance on papers that misrepresent conclusions. 

In order for the BLM to take a more measured and scientifically-defensible view of the data and issues surrounding bighorn sheep in the SRMA, we ask that the BLM reconsider its reliance on the following papers as they misrepresent the factual basis of their conclusions and therefore are not up to the data quality standards required of the BLM. (Reasons are detailed in the attached reviews below). Those papers include: Papouchis et al. 2000, 2001; Sproat 2012 and Sproat et al. 2019, and Widedmann and Bleich 2014.

A review of scientific issues in Papouchis (2000, 2001): 

Papouchis did not design the study or participate in the fieldwork, but was recruited by the late Dr. Francis Singer to analyze and publish a paper out of the data gathered, essentially to salvage results from a flawed study design.

The study by Papouchis et al. (2000, 2001) was methodologically flawed and biased in its interpretation of results because the “hikers” in that study were actually researchers who used telemetry to locate radio-collared bighorn sheep and intentionally harassed them until they fled by approaching directly, off-trail and on foot. Thus, the results of Papouchis et al. (2000, 2001) were an artifact of the experimental design rather than an unbiased comparison of bighorn reaction to “hikers.” Thus, no conclusions can be drawn to hikers on trails or humans in campsites. The intentional harassment used in Papouchis et al. (2000, 2001) is clearly a different circumstance from trail hikers and even the occasional cross-country hiker who does not have the intention or means of locating, tracking, and approaching bighorn sheep until they flee. Instead, the methods of Papouchis et al. (2000, 2001), as well as similar harassment used in MacArthur (1979) and Phillips and Alldredge (2000), more closely approximated the behavior of hunters pursuing their quarry. The BLM needs to understand and acknowledge this fundamental bias in the results and conclusions of Papouchis et al. (2000, 2001).

The authors of Papouchis et al. (2000, 2001) did not acknowledge that the bighorn sheep in their study, and the population of bighorn sheep in general, had already been subject to capture and handling by humans and that bighorn in that study population are hunted on BLM land outside of the national parks. Thus, the bighorn sheep were pre-conditioned to react to humans approaching on-foot and in close proximity.

Notably, Papouchis et al. (2000, 2001) reported that the radio-collared ewes whose home ranges were along road corridors had obviously habituated to cars, and recommended that these habituated bighorn should not be captured and removed for translocations. Such captures and removals would deplete the population of resident bighorn that had habituated to habitat along roads in Canyonlands National Park, which is also a safe haven from hunting. This is an important finding because it underscores how bighorn sheep readily habituate geographically to predictable and non-threatening human activity. This habituation is also why desert bighorn sheep near Palm Springs, California wander into the suburbs and city, why hikers have to walk around them on trails, and why they have to be shooed off of lawns and golf courses in the area. Other examples of habituation in desert bighorn include those along the banks of the Green and San Juan rivers in Utah, as well as in the Grand Canyon and along roads in Canyonlands National Park.

The only quantitative data used by Papouchis et al. (2000, 2001) to distinguish human use in the high vs. low-use areas was as follows, “Approximately 1 vehicle passed along roads/hour during peak visitor months in the low-use area. … Between 5 and 13 vehicles passed along roads/hour during peak visitor months in the high-use area.” Papouchis et al. (2000, 2001) also did not mention whether this human use statistic was on paved or dirt roads, the footprint of roads in bighorn habitat, the types of use or intensity of other human use in bighorn habitat, and most importantly, differences in habitat quality which would lead to differences in bighorn sheep density and behavior. The purported increase in human use in the study area was entirely anecdotal.

A review of scientific issues in: 

Sproat 2012a, thesis, Alteration of behavior by desert bighorn sheep from human recreation and Desert Bighorn Sheep Survival in Canyonlands National Park: 2002 – 2010; Sproat 2012b, report and presentation, Potash Desert Bighorn Sheep Research; and Sproat et al. 2019, publication, Desert bighorn sheep responses to human activity in south-eastern Utah. 

The titles used by Sproat (2012) and Sproat et al. (2019) were not accurate because the authors never actually measured bighorn reactions to human activity. Instead, the authors measured scanning vs. foraging behaviors in two different areas, designated high and low human use, but made no attempt to quantify habitat differences, bighorn density, or predation rates that would have influenced their results.

The author(s) of Sproat (2012a,b) and Sproat et al. (2019) assume that a bighorn sheep observed “scanning” is looking at “threats” resulting from human use of the environment although they never consider any alternative hypotheses. Those alternative hypotheses include (a) the bighorn is looking for other bighorn sheep, (b) the bighorn is scanning to locate additional food resources, or (c) the bighorn is scanning for predators, including mountain lions, coyotes, bobcats, and golden eagles, all of which prey on bighorn sheep or their lambs. The authors present no data that time spent scanning vs. grazing has a fitness consequence to the bighorn population.

In the abstract of their paper, the authors of Sproat et al. (2019) make several bold and inaccurate statements. For example, under “Implications” the author(s) state:

“From 1979 to 2000, human recreation increased over 300% in areas occupied by desert bighorn sheep (O. c. nelsoni) in south-eastern Utah. Concurrently, the population of desert bighorn sheep occupying the Potash Bighorn Sheep Management Unit of south-eastern Utah was in steep decline.”

“We raise a cautionary flag because recreational use in bighorn sheep habitat near Moab, Utah, continues to increase and bighorn numbers continue to decline.”

However, no bighorn sheep population data was presented by the authors of Sproat et al. (2019) to support these statements. Quite to the contrary, data from the State of Utah (2019) for the La Sal-Potash population, which includes bighorn sheep in Island in the Sky, Potash, Professor Valley and Dolores Triangle subpopulations, clearly refutes this claim. The State data reveal that this population had increased despite both repeated captures and removals of bighorn sheep from the La Sal-Potash population for translocations, with 289 bighorn captured and translocated between 1982-2008, mainly from the Potash area and other parts of Canyonlands National Park (Wild Sheep Working Group 2015). Additionally, 2 to 4 bighorn sheep are hunted annually on BLM, state, and private land outside of the national parks (including the Potash area), with 31 bighorn sheep killed by hunters between 2010 and 2019 (see big game report above). This bighorn population increase also occurred despite the fact that predation accounted for 44% of radio-collared mortalities reported by Sproat (2012b). And most importantly, the bighorn population increase occurred despite the reported increase in recreational use which Sproat et al. (2019) attempted to link to a non-existent bighorn sheep decline.

Something is clearly amiss with Sproat et al. (2019) because in Sproat’s own words (Sproat 2012b, which included annual survival data from radio-collared bighorn), he concluded:

“Survival for desert bighorn sheep in CNP [Canyonlands National Park] was relatively high (83%—88%; Table 7), as evidenced by population estimates (n = 400, status = stable/increasing). Our statistical analyses indicate that temporal variables (season and month) had the greatest effect on survival.”

And in the discussion of Sproat et al. (2019), those authors state:

“We determined that bighorn sheep grazed less and scanned more in areas of high human use, but there was no apparent effect on the survival rates of adult desert bighorn sheep in the study area, as documented by Sproat (2012).”

Oddly, in the concluding sentences that follow, Sproat et al. (2019) tried to qualify this non-effect by reiterating speculation that increasing human use will have population level impacts on bighorn that needs to be mitigated and further research is needed. Specific wording includes “links among human activity, behavior of bighorn sheep and resulting consequences for fitness [which] will provide additional information useful to managers.” This inability to let go of a desired but undemonstrated research outcome is typical of some of the most frequently cited literature on human disturbance of wildlife. Also typical is the call for more data but never the critical tests that could potentially falsify their human disturbance hypothesis. It appears that Sproat (and his coauthors) were attempting to squeeze a conclusion out of data that are contrary to that conclusion.

In the discussion of their paper, Sproat et al. (2019) attempt to build a case that bighorn sheep habitat in Canyonlands is under threat of being abandoned citing other bighorn studies. Contrary to Sproat et al’s (2019) assertion, Longshore et al. (2013) did not report any abandonment of habitat or population decline in Joshua Tree National Park, instead those desert bighorn sheep ewes merely moved away from centers of human activity on busy weekends and moved back during the week when human use was lower. No deleterious effect on demography was reported. We also note that those desert bighorn sheep in Joshua Tree are not hunted. As pointed out in the attached reviews, Widedmann and Bleich (2014) did not even attempt to rule out more obvious cases for decline and eventual abandonment in a study area in North Dakota along the Little Missouri River; namely, extensive residential, commercial, and agricultural development, and suboptimal habitat to begin with. They did not rule out these factors because they never admitted that they existed.

Also cited by Sproat (2019) is the thesis by Courtemanch (2014) which presented data about constriction of winter range bighorn habitat by backcountry skiers and snowboarders in the Tetons of Wyoming. However, neither that study nor Sproat et al. (2019) mentioned the fact that bighorn sheep from the Teton bighorn population are hunted, which results in bighorn avoiding humans because they are potential predators. In addition to bighorn, mountain goats that utilize the same habitat as bighorn in the Tetons, are hunted on USFS land just outside the Grand Teton National Park. The State of Wyoming Bighorn Sheep Hunt Area #6 lists a quota of one bighorn sheep annually with a hunting season extending from August 1st through October 31st. This bighorn population also overlaps Mountain Goat Hunt Areas #2 and #5 with a current quota of 4 and 8 mountain goats respectively and a hunting season from August 15 to October 31st. While these quotas may not seem high, it is significant that hunters and their guides often spend weeks scouting and hunting in bighorn and mountain goat habitat, approaching their potential quarry as predators, and killing them with archery or rifle. Consequently, it should come as no surprise that bighorn sheep in the study by Courtemanch (2014) avoided other humans as potential predators.

Like the subpopulation studied by Wieddemann and Bleich (2014), the Grand Teton bighorn sheep population was also compromised by extensive development, as Courtemanch (2014) notes:

“The Teton bighorn sheep population has experienced numerous changes to its habitats and migration patterns due to residential development, construction of roads and fences, historical livestock grazing, and wildfire suppression, culminating in the population abandoning its traditional low elevation winter ranges (Whitfield 1983).”

Also unusual is the fact that 78% of backcountry skiers and snowboarders in the study by Courtemanch (2014) accessed the backcountry and bighorn habitat from ski lifts in Jackson Hole Mountain Resort and Grand Targhee ski resorts, a situation very different from the desert of southeastern Utah.

In conclusion, Sproat and the EA make apples-to-oranges comparison to studies with very different circumstances and uncritically accept the authors conclusions without first evaluating the assumptions, methods and data used.

A review of scientific issues in Wideman and Bleich (2014): 

The paper by Wiedmann and Bleich (2014), cited by Sproat et al. (2019) and in the EA, attempted to lay blame for the abandonment of habitat by a ewe group on construction of a trail, while ignoring other, far more obvious factors for the decline and eventual abandonment of this translocated ewe group and associated lambing area. The authors of that paper failed to account for and test other, far more obvious factors, including disease, habitat fragmentation and development. Additionally, because Wiedmann and Bleich (2014) erroneously cited the speculation in Papouchis et al. (2000, 2001) as if they were data-driven results, other authors have used this study to further reinforce their belief that human recreational disturbance of bighorn sheep is deleterious to their health and population survival. However, a closer examination of that paper reveals it to be factually deficient and misleading.

The authors of Wiedemann and Bleich (2014) failed to acknowledge that Sully Creek was a marginal site to translocate bighorn sheep into for reasons that now appear to be obvious. This area has low topographic relief as it is along the river breaks of the Little Missouri River in North Dakota. Connectivity to the northern ewe groups required that bighorn ewes migrate along a river corridor under or over the four-lane highway (Interstate 94), across a railroad track as well as across numerous paved and unpaved roads, and around development. The close proximity to the town of Medora, North Dakota and availability of private land, where the bighorn were released in the 1950’s, would inevitably lead to extensive development of the surrounding area including habitat occupied by bighorn. Seen from Google Earth historical imagery, permanent land conversion and development over the past 20 years in (and surrounding) the Sully Creek ewe home ranges and lambing areas has included: a golf course, a bible camp, agricultural field development, livestock, new private home construction, expansion of existing ranching and private land infrastructure (trailers, pens, fences, outbuildings, livestock, paved and dirt roads), oil and gas development, and artificial water ponds. This land conversion and development fragmenting and encroaching on the limited bighorn sheep habitat and movement corridors was not mentioned at all by Widedmann and Bleich (2014).

And finally, given that bighorn sheep are highly susceptible to strains of bacteria that cause fatal respiratory pneumonia in bighorn sheep and that the State of North Dakota has over 72,000 domestic sheep, it would seem obvious that disease should be strictly ruled out as a cause of decline before invoking other causes. However, none of the tonsillar swabs used to test for this disease were taken from sick or dying lambs. The only tonsil swabs were taken from healthy ewes that were captured for radio-collaring and the authors did not mention the number of samples that were taken from the Sully Creek ewe group.

In conclusion, if obvious sources of bighorn population loss, including capture and removal for translocations and ongoing mortality from hunting and predation have not been found to negatively affect population status, then why is the BLM proposing additional restrictions in bighorn sheep habitat? Can the BLM demonstrate why (and where) previous regulations and restrictions were found to be inadequate for maintaining a stable bighorn sheep population? Is the BLM willing to base its wildlife regulations on the hypothetical threat that bighorn sheep are not eating enough in areas where humans are present, based on worst-case scenarios from a study that could not find those effects? Why does the BLM not acknowledge in the EA that bighorn sheep habituate to predictable and non-threatening human behaviors?

C. Raptors

(1) Raptor Guidelines are Applicable to New Projects Rather than Existing Uses 

As stated in the 2002 raptor guidelines (Romin and Muck 2002), the guidelines are applicable to new projects and expanding development/activity, rather than existing land uses to which raptors have habituated, such as those in the SMRA. Therefore, rather than restrict or eliminate existing campsites and travel routes within the 0.5 mile one-size-fits-all buffer zone of raptor nests, as proposed in the EAs, we recommend retaining these but posting educational signage and/or physical impediments (i.e., logs or boulders) to discourage use outside of the existing campsite and travel route envelope. The BLM could also monitor these raptor nesting locations as part of its adaptive management strategy to evaluate and refine future mitigation measures with systematically collected data.

The above strategy would be separate from the process involved in the BLM evaluation of new campgrounds.

(2) Raptors and Adaptation to Human Activity 

The BLM needs to acknowledge the fact that raptors do adapt to human activity that is much closer and more intense than camping and recreational use. For example, the specific language in the Romin and Muck (2002) guidelines are as follows:

“Prior disturbance history and tolerance of raptors — As mentioned previously, some individual and breeding pairs of raptors appear relatively unperturbed by some human disturbance and human-induced impacts and continue to breed successfully amid these activities. Nesting within or near human-altered environments may be a manifestation of the decreased availability of high- quality natural nest sites; indicative of high densities of breeding birds; indicative of abundant or available prey; or simply a display of higher tolerance for disturbance by certain individuals or breeding pairs. Accordingly, it is not the intent of these guidelines to restrict current land use activities in those situations where raptors appear to have acclimated to the current level of disturbance and human-induced impacts. However, these Guidelines should be closely followed if proposed land use activities may result in exceeding the current levels and timing of disturbances.”

As discussed in the raptor guidelines, this habituation has been documented to occur at more intense levels of human disturbance, and more frequently than that associated with campsites and travel routes, trails, and current recreational activities in the planning areas:

“Some individual breeding pairs appear relatively unperturbed by human disturbance and human- induced impacts and continue to breed successfully amid development (Mathisen 1968, Bird et al. 1996). In addition, some land-use actions are potentially beneficial for some raptor species, such as: selective logging, utility lines, dams and reservoirs, farming, grazing, fire, mechanical/chemical, and public observation (Olendorff et al. 1989). For example, peregrine falcons and prairie falcons have been observed nesting on transmission towers, bridges, and buildings in many cities and raptors, including bald eagles and golden eagles, have nested within a few hundred meters of airports, blasting, construction, quarry, and mine sites (Pruett-Jones et al. 1980, Haugh 1982, White et al. 1988, Holthuijzen et al. 1990, Russell and Lewis 1993, Steenhof et al. 1993, Bird et al. 1996, Carey 1998).”

(3) Raptor Nest Buffer Distances 

Raptor Nest Buffer Distances should be revised based on data rather than opinion, as they are currently in the EAs and papers cited in the EAs. Raptor buffer distances around points, such as the 0.5 mile-radius buffer, is a one-size-fits-all buffer that lacks a sound scientific basis (e.g., data that can show a reduced survivorship of individuals or a population-level effect at distances less than this threshold). In fact, none of the species listed in the EAs are notably sensitive to human presence and the often-repeated myth of human disturbance causing nest abandonment or failure comes from decades in the past (i.e., before the 1970s and the environmental movement). Those early documented cases of “human disturbance” leading to nest failure were actually from the destruction of golden eagle nests, killing of young, and shooting of adults from the ground near nests and birds in flight from aircraft. This misguided persecution was carried out by domestic sheep producers and ranchers in the USA (Nelson 1982). In fact, Colorado had a hunting season on golden eagles until 1966. The killing of eagles by Native Americans for feathers used in ceremonial headdresses was another documented form of “human disturbance” (Nelson 1982). During the same period, “human disturbance” of peregrine falcons was from egg collectors who “roped” into nests and were mistakenly referred to in the past as “climbers.” And in Scotland and the UK, game keepers shot peregrine falcons on sight to protect game birds (Ratcliffe 1993). Although that dark chapter of persecution of raptors is now closed, some uncritical authors still conflate past human disturbance that had lethal intent, with contemporary use of the term “human disturbance” that refers to any human presence in the vicinity of nests, even if it is benign.

Experimental evidence reveals a greater tolerance of golden eagles (and other raptors) to human presence and activities than is typically parroted in the literature and in various well-intentioned guidelines that are based upon opinions rather than experimental data. Three studies on human disturbance of raptors stand out in contrast to the trend described above because they relied on controlled experiments to test the effects of human disturbance on the fitness of raptors (White and Thurow 1985, Holthuijzen et al. 1990, Grubb et al. 2007, 2010). All three utilized disturbances that were clearly threatening (e.g. blasting, threatening approach via foot/vehicle/helicopter, gunshots and noisemakers), as compared to relatively benign activities such as hiking, rock climbing, horseback riding, and driving vehicles. Yet, all three reported a remarkable tolerance of human presence, a decreased response when habituated, and recommended substantially smaller buffer zones than those typically imposed. The BLM needs to acknowledge this tolerance and habituation to human activities that are far more threatening than recreational uses in the planning areas.

More specifically, the activities include those in three studies that we’ll summarize. First, Holthuijzen et al. (1990) measured the effects of nearby blasting on nesting prairie falcons, as compared to undisturbed controls. They reported:

“This study demonstrated that, in general, blasting had no severe adverse effects on the falcon’s behavioral repertoire, productivity, and occupancy of nesting territories. Therefore, we suggest that when blasting does not occur prior to aerie selection and ceases prior to fledging, blasting that takes place at least 125 m from occupied prairie falcon aeries need not be restricted, provided that peak noise levels do not exceed 140 dB at the aerie (i.e., the noise level we measured for our experimental blasts). We recommend that no more than 3 blasts occur on any given day or 90 blasts during the nesting season.”

Second, White and Thurow (1985) used an experimental approach to quantify the effects of human disturbance on nesting ferruginous hawks. Their “low level” disturbance involved approaching nests on foot while firing a rifle every 20m, driving up to nests, and continuously operating a 3.5hp gasoline motor or noisemaker within 30-50m of a nest. They reported:

“Unlike previous reports of substantial nest desertion by raptors as a result of human activity, the number of disturbed nests that were deserted in our study was unexpectedly low.”

“Our observations suggest that a sufficient buffer zone for brief human disturbance around ferruginous hawk nests is 250 m. Adults will not flush 90% of the time if human activity is confined to distances greater than this.”

Third, Grubb et al. (2007, 2010) directly approached golden eagle nests at close range via helicopter, and quantified behavior and nest success. This study was a poignant refutation to an often repeated but erroneous perception (discussed above) that golden eagles are highly susceptible to human disturbance. The authors reported results contrary to expectations:

“Multiple exposures to helicopters during our experimentation in 2006 and 2007 had no effect on golden eagle nesting success or productivity rates, within the same year, or on rates of renewed nesting activity the following year, when compared to the corresponding figures for the larger population of non-manipulated sites. During our active testing and passive observations, we found no evidence that helicopters bother golden eagles nor disrupt nesting. In 303 helicopter passes near eagles, we observed no significant, detrimental, or disruptive responses. 96% of 227 experimental passes of Apache helicopters at test distances of 0-800 m from nesting golden eagles resulted in no more response than watching the helicopter pass (30%). “

“We found no relationship between helicopter sound levels [even though Apache helicopters were twice as loud as the civilian helicopters] and corresponding eagle ambient behaviors or limited responses, which occurred throughout recorded test levels (76.7-108.8 dB, unweighted).”

“Between all the other aircraft and human activities occurring in the Tri-Canyon Area, as well as their long term coexistance with WPG and apparent indifference to current operations, golden eagles in the area appear acclimated to current levels of activity. “

“For the specific question of WPG operating in the Tri-Canyon Area without potentially impacting nesting golden eagles, we found no evidence that special management restrictions are required. (Authors’ Note: The results of this research were very much unexpected since helicopters are usually considered more disruptive to bald eagles than any other type of aircraft. Plus, golden eagles are traditionally thought to be more sensitive, and therefore more responsive, to human intrusions than bald eagles. However, we found the golden eagles studied during this project to be just as adaptive, tolerant, and acclimated to human activities as any bald eagles in our rather considerable, collective experience with this species. We hypothesize this may at least be in part due to the proximity of the large, growing, and outdoor-oriented population of the Salt Lake Valley and Wasatch Front.

The experimental results of the three studies above should serve as an inspiration to the BLM to incorporate an adaptive management strategy into the planning process for evaluating the influence of specific types and locations of recreational use on nesting raptors.

Literature Cited 

Courtemanch AB. 2014. Seasonal habitat selection and impacts of backcountry recreation on a formerly migratory bighorn sheep population in northwest Wyoming, USA. M.Sc. Thesis, University of Wyoming, Laramie, WY, USA.

Grubb TG, Delaney DK, Bowerman WW. 2007. Investigating Potential Effects of Heli-Skiing on Golden Eagles in the Wasatch Mountains, Utah. Final Report to the Wasatch-Cache National Forest, Study No. RMRS-RWU-4251-P2-2, Agreement No. 05-JV-11221607-237, USDA Forest Service, Rocky Mountain Research Station.

Grubb TG, Delaney DK, Bowerman WW, Wierda MR. 2010. Golden eagle indifference to heli-skiing and military helicopters in northern Utah. Journal of Wildlife Management 74(6):1275-1285.

Holthuijzen AMA, Eastland WG, Ansell AR, Kochert MN, Williams RD, Young LS. 1990. Effects of Blasting on Behavior and Productivity of Nesting Prairie Falcons. Wildlife Society Bulletin 18(3):270-281

Longshore K, Lowrey C, Thompson DB. 2013. Detecting short-term responses to weekend recreation activity: desert bighorn avoidance of hiking trails. Wildlife Society Bulletin 37:698–706. doi:10.1002/wsb.349

Nelson T, Ferster C, Laberee K, Fuller D, Winters M. 2021. Crowd-sourced data for bicycling research and practice, Transport Reviews 41:1, 97-114, DOI: 10.1080/01441647.2020.1806943

Papouchis CM, Singer FJ, Sloan WB. 2000. Effects of increasing recreational activity on desert bighorn sheep in Canyonlands National Park, Utah. Pages 364 – 391 in Singer, F. J. and M. A. Gudorf. Restoration of bighorn sheep metapopulations in and near 15 national parks: conservation of a severely fragmented species. USGS Open File Report 99-102, Midcontinent Ecological Science Center, Fort Collins, CO.

Papouchis CM, Singer FJ, Sloan WB. 2001. Responses of Desert Bighorn Sheep to Increased Human Recreation. Journal of Wildlife Management 65(3):573-582.

Ratcliffe, DA. 1993. The Peregrine Falcon. 454 pp. ISBN 0856610607, 9780856610609

Romin, Laura A and James A. Muck. 2002. Utah Field Office guidelines for raptor protection from human and land use disturbances. U.S. Fish and Wildlife Service, Utah Field Office Salt Lake City.

Sproat KK. 2012. Alteration of behavior by desert bighorn sheep from human recreation and desert bighorn sheep survival in Canyonlands National Park: 2002–2010. M.Sc. Thesis, Brigham Young University, Provo, UT, USA.

Sproat KK. 2012b. Potash Desert Bighorn Sheep Research. Unpublished report. Available: https://www.academia.edu/3591133/Potash_Desert_Bighorn_Sheep_Research

Sproat KK, Martinez NR, Smith TS, Sloan WB, Flinders JT, Bates JW, Cresto JG Bleich VC. 2019. Desert bighorn sheep responses to human activity in south-eastern Utah. Wildlife Research. Available: https://doi.org/10.1071/WR19029

State of Utah. 2019. La Sal/Potash bighorn sheep management plan. Available: https://wildlife.utah.gov/pdf/bg/plans/bighorn_la_sal_potash.pdf

State of Utah. 2019. Available: https://wildlife.utah.gov/pdf/annual_reports/big_game/19_bg_report.pdf

State of Utah. 2021. Bighorn sheep harvest data. Available: https://wildlife.utah.gov/pdf/grama/2021_sheep/2021-harvest-data.pdf

Wiedmann BP, Bleich VC. 2014. Demographic responses of bighorn sheep to recreational activities: a trial of a trail. Wildlife Society Bulletin 38:773–782.

Wild Sheep Working Group. 2015. Records of Wild Sheep Translocations-United States and Canada, 1922-Present. Western Association of Fish and Wildlife Agencies, USA. (05/17/2015) Available: https://wafwa.org/wpdm-package/records-of-wild-sheep-translocations-united-states-and-canada-1922-present/?wpdmdl=11740&refresh=62adb6f0e2d0c1655551728&ind=1601396318746&filename=Records-of-Wild-Sheep-Translocations-United-States-and-Canada-1922-Present-R

Continue Reading

TPA Intervenes in Rio Grande Forest Litigation to Protect Public Access

Mountain States Legal Foundation logoOn, November 8, 2021 Environmental groups challenged the U.S. Forest Service over the Rio Grande National Forest Plan. TPA has intervened to support multiple uses and give motorized recreation a voice as the lawsuit proceeds. Joining forces with the TPA are the following organizations:  Backcountry Discovery Routes, Colorado Snowmobile Association, and Colorado Off-Highway Vehicle Coalition. Thanks to an introduction from TPA counsel Kent Holsinger, Mountain States Legal Foundations (MLSF) will be representing TPA and the other intervenors in the case at no cost.

MSLF is a nonprofit legal firm based in the American West whose mission is – 

“… to protect and restore those rights enshrined in the Constitution of the United States of America rights through pro bono litigation. We protect individual liberty, the right to own and use property, the principles of limited and ethical government, and the benefits of the free enterprise system.” 

Please view this Press Release from the MSLF and the Case Summary for more information.

Continue Reading

Roadless Area Conservation Act Comments – HR279

CSA, TPA, COHVCO logos

Congressman Ruben Gallego
1131 Longworth House Office Building
Washington, DC 20515

RE: Roadless Area Conservation Proposal of 2021 HR279

Dear Congressman Gallego:

Please accept this correspondence as the vigorous opposition of the above Organizations with regard to the Roadless Area Conservation Proposal of 2021 (“The Proposal”). 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. Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. For purposes of these comments, TPA, IRC, CSA and COHVCO will be referred to as “the Organizations”. The Organizations and our members have been very involved in all phases of development of the National Roadless Rule and the Idaho and Colorado State Specific Rules.

The Organizations are very concerned that the Proposal removes all local flexibility in the designation of Roadless areas through the state petitioning process, which has been successfully used by states such as Colorado and Idaho to adapt the Roadless Rule to more localized challenges and concerns. The Proposal further fails to address the fact that timber management has been identified as major benefit to the health of local ecosystems and would be prohibited under the Proposal in all Roadless Areas.

Further the Proposal appears to separate the motorized trail users from all other trails uses and exclude them from Roadless areas. This is simply unacceptable to our Organizations both from a loss of recreational opportunities but also from a management funding perspective as the motorized community annually provides more than $200 million in grants to land managers for the maintenance and management of multiple use routes. This funding is critical in providing high quality recreational opportunities in Roadless Areas but also to providing access infrastructure to these areas for firefighting and water resources in the areas.

2a. State flexibility must be preserved in the Roadless Rule Process

The Organizations are very concerned that the Proposal will remove the ability of States to Petition for the creation of State level roadless rule, such as has been highly successful in Idaho and Colorado. Currently Alaska and Utah have petitioned for the development of a similar Roadless Rule and numerous other states have displayed significant interest in development of similar efforts in the future, such as North and South Carolina and Virginia. Given that only the State Petitions for Colorado and Idaho are recognized in the Proposal, we must assume that this authority would be lost for States that have not completed their development of State level roadless rules. This is deeply troubling.

Our members have been hugely supportive of the efforts that have been completed in Idaho and Colorado, as we believe this flexibility is critical to management of these areas and Roadless areas are often synonymous with recreational opportunities sought by our members. Our members seek out these areas due to the lower intensity highly dispersed recreational opportunities that Roadless areas provide.

2b. Motorized usage is omitted from an authorized usage of a Roadless Area.

After reviewing the Proposal, the Organizations are also deeply troubled by the proposal that motorized usage is not recognized as a multiple use in a Roadless Area moving forward. We are very concerned that this omission is not a mere drafting oversight but rather is a strategic attempt to remove motorized usages from Roadless Areas, as §2 of the Proposal defines usage as follows:

“(7) roadless areas provide unparalleled opportunities for outdoor recreation, including hiking, camping, picnicking, wildlife viewing, hunting, fishing, cross-country skiing, canoeing, mountain biking, and similar Activities;
(8) while roadless areas may have many wilderness-like attributes, unlike wilderness areas, the use of mechanized means of travel is allowed in many roadless areas;”

The Organizations are concerned that while mechanized usages of roadless areas are recognized, motorized usages are not recognized. §2 of the Proposal further avoids the recognition of motorized recreation as a valid usage of a Roadless area as follows:

“(11) consistent with the multiple-use mission described in paragraph (10), this Proposal—

(A) ensures the continued protection of social and ecological values, while allowing for many multiple uses of inventoried roadless areas; and”

The Organizations would be remiss if the Proposal that there is a significant difference between allowing “all multiple uses” when compared to “many multiple uses” of inventoried Roadless Areas. It is unfortunate that after the decades of discussions and efforts in balancing all multiple uses in Roadless areas, the users of these lands still face conflict and division from those interests that are opposed to the multiple use mandate on public lands. As we have noted before Roadless areas are sought after by all forms of recreational usage due to the lower intensity and more diverse nature of the opportunities provided by the Roadless designation.

2c. Timber management is prohibited in Roadless areas moving forward.

The Organizations are also very concerned that a far less subtle path has been taken in the prohibition of logging Activities in Roadless Areas, which is represented in §4 of the Proposal. This prohibition is clearly stated as follows:

“The Secretary shall not allow road construction, road reconstruction, or logging in an inventoried roadless area where those Activities are prohibited by the Roadless Rule.”

Not only is the timber industry an important component of the multiple use mandate, the timber industry represents an important tool for land managers to address catastrophic wildfires that have become far too common on public lands. The Organizations vigorous support timber management to the impact of wildfires on recreational opportunities in Roadless areas. Wildfire impacts to all recreational opportunities can span decades, while timber harvest impacts are short lived. Similar impacts to other resources, such as watersheds and wildlife habitat, which are claimed to be protected in the Proposal, but are often decimated by wildfires. Prohibiting timber Activity in Roadless areas would seem to open the possibility of the Proposal becoming a net negative to the health of forests in Roadless areas. This simply makes no sense.

The disparate impacts of fire when compared to timber management are clear when long term impacts are reviewed. The USFS has been closely tracking the impacts of high intensity wildfires that struck Colorado in 2020, and are concluding that these burn scars may not recover for more than 100 years due to the combined impacts of drought, beetle kill and subsequent high intensity fires. This research also indicates that timber harvest and fire breaks were effective in partial management of impacts of these fires on communities and other resources. A summary of this research was recently provided in the USFS “Science You Can Use Bulletin” for January/February 2022.1 This bulletin has links to the new USFS research that addresses impacts in a far higher level of detail than the bulletin.

It should also be noted that the severe impacts of high intensity wildfire can have serious impacts on Endangered Species, such as the Canadian Lynx. Post fire research on the Rio Grande NF has found that while many species will reenter burn scars within a short period of time of the fire being extinguished, the Canadian Lynx avoids burn scars for extended periods of time.2 Again, the Organizations must question why best available science such as this would not be the basis for legislation moving forward. The Organizations would also note the inherent conflict in basis for prohibiting motorized usage due to perceived impacts but then allowing greater impacts to resources than ever could be resulting from motorized usage through other restrictions in the Proposal.

2d. Economic information is misleading and fails to address huge partnerships.

The Organizations are very disappointed that the information used to estimate the monetary backlog of maintenance on public lands in the Proposal is so badly out of date. While we do not contest that $3.2 Billion was at one point the estimated maintenance backlog for the USFS, Congress has made significant strides in addressing this backlog though both the Americas Great Outdoors Proposal funding that provides approximately $300 million per year to the USFS. This backlog is further reduced by the recent Federal Infrastructure Proposal3 which provided significant infrastructure funding beyond the Great American Outdoors Proposal.

What is deeply troubling about this assertion is the fact it is made without correlation to how the Proposal will improve this condition. This is a critical question as the Proposal actually reduces the amount of funding that is available for the maintenance of these facilities in Roadless Areas. The motorized communities, that would now be prohibited from these roadless areas, provide more than $200 million in funding to land managers annually. While this funding is not broken down to allocations, such as Roadless Areas, we must believe a significant portion of this funding is used for the maintenance of all types of routes in these areas. When these areas are closed to motorized usage, this funding cannot be used for this type of maintenance any longer as use of this funding is prohibited by state law if the area is not open for motorized usages.

3. Conclusion

We welcome discussions around the Congressional designation of areas and routes but the Organizations have serious concerns regarding to the Roadless Area Conservation Proposal of 2021. The Organizations are very concerned that the Proposal removes all local flexibility in the designation of Roadless areas through the state petitioning process, which has been successfully used by states such as Colorado and Idaho to adapt the Roadless Rule to more localized challenges and concerns. The Proposal further fails to address the fact that timber management has been identified as major benefit to the health of local ecosystems and would be prohibited under the Proposal in all Roadless Areas.

Further the Proposal appears to separate the motorized trail users from all other trails uses and exclude them from Roadless areas. This is simply unacceptable to our Organizations both from a loss of recreational opportunities but also from a management funding perspective as the motorized community annually provides more than $200 million in grants to land managers for the maintenance and management of multiple use routes. This funding is critical in providing high quality recreational opportunities in Roadless Areas but also in providing access infrastructure to these areas for firefighting and water resources in the areas.

Please feel free to contact Scott Jones at 518-281-5810 if you should wish to discuss these matters further.

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

Sandra Mitchell,
Executive Director – IRC

Chad Hixon
Executive Director – TPA

1 A copy of this summary is available here: https://www.fs.usda.gov/rmrs/sites/default/files/documents/SYCUBulletin-ForestConversion-JanuaryFebruary2022_0.pdf
2 A complete copy of this research is available here: https://www.fs.usda.gov/rmrs/sites/default/files/documents/SYCU_Bulletin_ForestUnderstories_Lynx.pdf

3 H.R.3684 of 117th Congress

Continue Reading

TBK Bank Donation News release

Thank you to TBK Bank  – they have just become our newest supporter!!TBK Bank Logo

We would also like to extend a thank you to David Gardner, Senior Vice President of TBK Bank, Western Division for working with the TBK Bank Board of Directors in facilitating this partnership. Dave has a long history of personally supporting the TPA and we are thrilled to have the opportunity to now also partner with the folks at TBK Bank. Their generous donation will help to further the mission to protect the sport of motorcycle single track riding and access to public land in Colorado, New Mexico and Utah.

TBK Bank has locations throughout Colorado and various locations in Western Kansas and New Mexico. Please consider TBK Bank for your banking needs as an organization that is giving back to the motorized recreation community.

Continue Reading