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Land Use 101

Posted in Project Vehicles on November 1, 2010 Comment (0)
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Photographers: The Four Wheeler Archives

"Trail Closed." We've all seen the signs at one time or another, and sightings seem to have become more frequent in recent years. It's no secret that our public lands-be they parks, monuments, forests, or recreation areas-are under more pressure than ever from a variety of competing interests, including environmental groups seeking to restrict or forbid vehicular access on public lands.

And now, more than ever, is the time to get educated on the subject and get involved in the fight to preserve motorized access to our public lands.

What follows in these pages is a guide to understanding the various pieces of federal legislation that affect vehicular access and the agencies charged with enforcing them. We also review current land-use policies of each federal agency, and list some current pieces of currently pending federal legislation that could impact future access. Finally, we'll pass along some tips for getting involved and joining the fight to keep public lands open and accessible for all outdoor recreationists. We've also got a comprehensive list of accessible public lands, along with complete contact information for the regional offices of the relevant federal agencies.

For now, let's start by covering the three biggest pieces of federal legislation that directly affect motorized access to public lands:

Wilderness Act
What It Is: The Wilderness Act of 1964 established a framework whereby Congress may permanently protect land that is essentially undisturbed, retains a primeval character, without permanent improvements and generally appears to have been only affected primarily by the forces of nature. The lands become part of the National Wilderness Preservation System, which now encompasses nearly 110 million acres. A majority of the wilderness areas are in national parks, while the most of the other lands are within national forests and fish/wildlife preserves. Lands officially designated as "Wilderness" are closed to all motorized vehicles and mechanical forms of transportation, including mountain bikes. "Wilderness Study Areas" (WSAs) are lands that have been designated as having wilderness characteristics, potentially making them eligible for the wilderness designation. Federal agencies manage the lands so as to protect these characteristics until Congress ultimately decides their final status. There is no timeline for making a decision and legislation must be enacted to finalize the process.

How It Affects You: It's pretty self-evident. Any public lands designated as "wilderness" are closed to motorized recreation, period. To cite one recent example, hundreds of miles of previously accessible trails in the Owyhee Canyonlands of Idaho were closed to vehicular access after a recent Wilderness designation (see below).

Recent Legislation: On March 30, 2009, President Obama signed into the law H.R. 146, the Omnibus Public Land Management Act of 2009, which designated more than 2 million acres of Wilderness in nine states. The designations include areas in and around Joshua Tree National Park and the Eastern Sierra in California, Owyhee-Bruneau Canyonlands in Idaho, Mt. Hood in Oregon, and Zion National Park in Utah. Some roads and trails were excluded from the wilderness designations and therefore remain available to OHV enthusiasts, but others did not receive protection.

Endangered Species Act
What It Is: The Endangered Species Act of 1973 (ESA) is designed to protect threatened and endangered species, and the habitats in which they are found. It applies to federal, state and private lands. The U.S. Fish and Wildlife Service (FWS) maintains a list of about 1,890 total (foreign and domestic species on the "threatened" and "endangered" lists, which includes birds, insects, fish, reptiles, mammals, crustaceans, flowers, grasses, and trees. Given its successes and failures over the past 36 years, there have been widespread calls to review and revise the ESA to foster more cooperative efforts and incentive programs between the government, private landowners, and conservation organizations.

How It Affects You: The ESA has been cited as a reason for closures or restrictions of numerous areas formerly open to OHV access. One notable example has occurred in recent years at Algondones (Glamis) Dunes in Southern California, where motorized access has been restricted to designated areas to preserve habitat for Peirson's milk vetch, an endangered plant species.

Recent Legislation: The most recent efforts to revise the ESA died in 2006. The legislation would have overhauled the existing process for designating endangered species by replacing existing "critical habitat" requirements-one of the more contentious areas of the existing law and a frequent source of lawsuits-with "recovery habitats." The bill also called for compensating private property owners for land-use restrictions due to the presence on private property of an endangered species.

Clean Water Act
What It Is: The Clean Water Act of 1972 (CWA) is the baseline federal law used to regulate and control pollution of permanent bodies of water such as oceans, rivers, and lakes. The Act establishes a permit system under the authority of the Environmental Protection Agency (EPA) and state environmental agencies to regulate discharges of pollutants by various sources such as mining and energy companies, agribusiness, and certain government agencies and/or facilities. The CWA also authorizes states to establish water-quality standards based on specific use (agriculture, recreation, aquaculture, etc.). Later legislation expanded the jurisdiction of the act to include storm water runoff and municipal sewage treatment facilities. Recent Supreme Court decisions have narrowed the scope of the CWA to include only navigable and/or interstate bodies of water, as opposed to isolated ponds and wetlands.

Popular with wheelers, fishermen, equestrians, and environmentalists alike, the Outer Banks of Cape Hatteras, North Carolina, have seen parts of the National Seashore closed to vehicular access in recent years in order to provide habitat for shore birds.

How It Affects You: The Clean Water Act has been used as a litigation tool to limit the activity of off-highway vehicles on public lands containing, or adjacent to, permanent bodies of water. In 2009, an environmental group in North Carolina threatened to sue the U.S. Forest Service under the Clean Water Act, claiming that sediment run-off from OHV trails in the Upper Tellico complex was fouling nearby trout streams in violation of the Act. The Forest Service, which had already commissioned trail maintenance and repair studies of the area, decided to close down the complex permanently before the suit was filed.

Recent Legislation: The Clean Water Restoration Act of 2009 (S. 787) seeks to expand the jurisdiction of the CWA to include seasonal, non-navigable and/or isolated intrastate waterways such as mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, and playa lakes. The bill was reported out of the Senate Energy and Natural Resources Committee earlier this year, but had not been scheduled for a vote by the full Senate as of press time.

Federal Agencies
Most current land-use concerns relate to federal lands controlled by four federal agencies: Bureau of Land Management, U.S. Forest Service, National Park Service, and the U.S. Fish and Wildlife Service. The following is a brief description of the major players.

The Bureau of Land Management (BLM), part of the Department of the Interior, administers the bulk of federal lands. The BLM manages about 262 million acres of federal land. This is about one-eighth of all of the land in the United States and 42 percent of all federal lands. The BLM was initially created to manage range lands for use by mining, grazing, oil and gas development. Its role was expanded in 1976 to include recreation and wilderness. It manages 2 percent of the "National Wilderness Preservation System" (161 separate wilderness areas) along with a large amount of land that has been reserved as "potential" wilderness, also known as Wilderness Study Areas.

The U.S. Forest Service (USFS), part of the Department of Agriculture, oversees the National Forests. Among the purposes of its supervision are ecological protection, resource management and public access. The USFS is responsible for managing about 191 million acres (about the size of Texas) comprising 155 national forests and 20 grasslands, which is 30 percent of all federal lands. Within that acreage, it manages 18 percent of the National Wilderness Preservation System (406 separate wilderness areas) along with a large amount of land that has been reserved as potential wilderness.

The National Park Service (NPS), part of the Department of the Interior, manages land set aside for its natural, historical and cultural resources and for recreation. This includes 51 national parks and more than 300 national monuments, historic sites, memorials, seashores, and battlefields. The NPS manages about 81 million acres of federal land, which is 13 percent of all federal lands. Within that acreage, it manages 56 percent of the National Wilderness Preservation System (54 separate wilderness areas) along with a large amount of land that has been reserved as potential wilderness.

The U.S. Fish and Wildlife Service (FWS), part of the Department of the Interior, conserves the nation's wild animals and their habitats by managing a system of more than 500 national wildlife refuges and other areas, totaling about 91 million acres of land and water. The FWS manages 15 percent of all federal land, of which 22 percent is part of the National Wilderness Preservation System (71 separate wilderness areas) along with a large amount of land that has been reserved as potential wilderness. The FWS also administers the Endangered Species Act, making decisions on whether there should be public access to certain lands.

OHV Land Use Policies
BLM: In 2001, the Bureau of Land Management (BLM) issued a "National Management Strategy for Motorized OHV Use," which recognizes motorized recreational as a legitimate use of public land. Under the program, public lands are designated as "open," "limited," or "closed" to OHV use. "Open" areas are areas where all types of vehicle use are permitted at all times, anywhere in the area. "Limited" areas are lands where OHV use is restricted at certain times or use is only authorized on designated routes, and "Closed" areas are lands where OHV use is prohibited. In 2005, the BLM revised its Land Use Planning Handbook to incorporate specific guidance for "Comprehensive Travel and Transportation Management." In December 2007, the BLM sent guidance to its field offices to further clarify travel management decisions in the planning process. It noted that continued designation of large areas as open to unregulated "cross-country travel" was not a practical management strategy (although still permitted), and that field offices should direct OHV travel to designated roads and trails. For the 258 million acres of BLM administered lands, the BLM's current OHV designation status is approximately 32 percent "open," 4 percent "closed," 48 percent "limited," and 16 percent "undesignated." Included among the "open" areas, BLM manages approximately 100 specifically designated OHV riding areas.

National Park Service: The National Park Service (NPS) released proposed changes to its management policies that regulate OHV use within the park system. The management policies serve as a virtual handbook for park superintendents and other park officials. The proposed language closely mirrors existing policies in stating: "Routes and areas may be designated for off-road motor vehicle use by special regulation within national recreation areas, national seashores, national lakeshores, and national preserves, and then only when determined to be an appropriate use. Consistent with the executive orders and the Organic Act, park managers must immediately close a designated off-road vehicle route whenever the use is causing or will cause unacceptable impacts." Eight National Parks have park-specific OHV regulations. There are an additional six parks that are developing regulations including Cape Hatteras National Seashore and Glen Canyon National Recreation Area.

Access to Kane Creek Canyon, along with many other trails in the Moab-La Sal network, would probably be lost to wilderness designation should the recently introduced Red Rock Wilderness Act be enacted into law.

RS 2477: Rights-of-Way Claims: In 2003, the Interior Department initiated a policy to make it easier for states and counties to claim rights of way on thousands of dirt roads that run across federal lands, most of which were created between 1866 and 1976 when federal mining laws encouraged Western settlement. At issue is whether state and local governments, and the OHV community, will pursue huge numbers of public rights-of-way claims to these old trails that can be maintained as dirt-bike trails or OHV roads, or even converted into paved roads. One important element of this issue is that where roads are protected, areas will be ineligible for designation as wilderness.

Utah has been the main battleground for RS 2477 claims. For example, actions have been pursued for roads in Daggett County and the 8-mile Salt Creek Trail within Canyonlands National Park. The law remains murky at this time, with many conflicting applications of state and federal laws, and various court rulings. In the most recent action, the U.S. Court of Appeals for the 10th District ruled against Kane County officials seeking to assert RS 2477 rights for roads in the Grand Staircase-Escalante National Monument, Paria Canyon-Vermilion Cliffs Wilderness, Moquith Mountain Wilderness Study Area, and Glen Canyon National Recreation Area. The Court ruled in August 2009 that the Federal government had jurisdiction over the lands.

U.S. Forest Service: The U.S. Forest Service has a fairly new set of regulations for OHV use in National Forests and Grasslands. The need for reasonable management stems from the fact that off-road activity has risen from 5 million riders in 1972 to 36 million in 2000. Under the new policy (issued in 2005), the Forest Service is required to formally designate a system of roads, trails and areas where motorized vehicle use would be allowed. Local agency officials are required to seek public comments from state and local officials and other stakeholders in determining routes open to OHV use. The new rule will provide for increased involvement from the OHV community in the designation process. The Forest Service will also consider "user-created" routes in the review process. Many of these routes came into existence during "open" management, serve a legitimate purpose, and do not pose an environmental threat. The Forest Service is also updating its official maps since many existing roads and trails do not appear in the official inventory, and the agency anticipates that it will at least four years to complete the route designation process.

Forest Service "Roadless Rule": In 2001, the Forest Service under the Clinton administration issued a rule to stop construction of roads in 58.5 million acres of potential wilderness lands under its control. When first issued, the so-called "Roadless Rule" affected 31 percent of the total Forest Service land base. Forest Service roads provide access for the timber and mining industries along with a variety of recreational activities, such as sightseeing, fishing, hunting, and off-road vehicle use; roads formerly used for mining and/or timber harvesting may eventually be converted into recreational roads. The Bush administration modified the Rule to permit local forest managers more input on access issues and to provide state Governors with an opportunity to request exemptions from the Rule.

The Roadless Rule has been the subject to nearly endless challenges and litigation, and the ensuing years have seen conflicting court rulings overturning both the Clinton and Bush rulemakings. The conflicting opinions are working their way through the federal Appeals Court system and could eventually be presented to the Supreme Court.

Pending Federal Legislation
The Red Rock Wilderness Act of 2009 (S. 799/H.R 1925) would designate 9.4 million acres in Utah, including the Moab-LaSal Canyon, San Rafael Swell, and Canyonlands Basin regions, as protected under the Wilderness Act. More than one-sixth of the state of Utah would be off-limits to any form of motorized recreation if Congress approves the legislation. The House bill was referred to the Natural Resources Committee; the House Subcommittee on National Parks held hearings earlier this year, but had taken no further action as of press time. The Senate bill was referred to the Energy and Natural Resources Committee, which had taken no further action as of press time.

For years, Upper Tellico ORV Area was a gotta-go destination for four-wheelers in the eastern U.S. Sadly, the trail network was closed by the Forest Service last year due to concerns over soil erosion and contamination of nearby stream beds.

The Colorado Wilderness Act of 2009 (H.R. 4289) designates 850,000 acres in 34 separate areas in Colorado as wilderness. The areas include lands around Redcloud Peak, Dolores River Canyons, the Palisade, Bull Gulch and Browns Canyon. Most of the land is currently managed by the BLM or the Forest Service. Currently, the bill has been assigned to the House Natural Resources Committee; hearings were held by the Subcommittee on National Parks earlier this year, but no further action had been taken as of press time.

The Northern Rockies Ecosystem Protection Act of 2009 (H.R. 980) would affect roadless areas in five states, including 9.5 million acres in Idaho, 7 million in Montana, 5 million in Wyoming, 750,000 in eastern Oregon and 500,000 in eastern Washington. The total includes 3 million acres in Yellowstone, Glacier and Grand Teton National Parks. The legislation sets a precedent by using "bioregion" as an additional factor to be used in determining whether public lands merit federal wilderness protections. In all, 24 million acres of roadless lands would receive either Wilderness, Wildland Recovery or Biological Connecting Corridor designation. The House Subcommittee on National Parks held hearings on the legislation last year, but had not scheduled further action as of press time.

The California Desert Protection Act of 2010 (S. 2921) is a supplement to the Desert Protection Act of 1994. It will designate National Monument status to over 1 million acres of the Mojave Desert in southern California, including a 941,000-acre Mojave Trails National Monument, located south of the Mojave National Preserve, to be administered by the BLM. Designation of "National Monument" status prevents most forms of commercial development but is not as restrictive regarding vehicular access. The act would also create or expand approximately 350,000 acres of National Wilderness Areas. Five currently existing administrative OHV areas within the proposed monument-Rasor OHV Area, Stoddard Wells OHV Area, El Mirage OHV Area, Spangler Hills OHV Area and a portion of the Johnson Valley OHV Area-would receive official congressional designation as OHV areas, with instructions for the Interior Secretary to study the feasibility of expanding them at a later date. The Senate Energy and Natural Resources committee has held hearings on the bill, but had not scheduled a vote as of press time.

Sources

SEMA Action Network
Washington, DC 20004
202-783-6007
www.semasan.com
Tread Lightly!
Ogden, UT 84401
801-627-0077
www.treadlightly.org
United Four Wheel Drive Associations
Chesapeake, VA 23328
800-448-3932
www.ufwda.org
Blue Ribbon Coalition
Pocatello, ID 83202
(208) 237-1008
http://www.sharetrails.org

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