Archive | February, 2016

The Honorable Rob Bishop
The Honorable Jason Chaffetz
Attn: Fred Ferguson
U.S. House of Representatives
Washington, DC 20515

Dear Representatives Bishop and Chaffetz:

We appreciate the opportunity to comment on your discussion draft of the Utah Public Lands Initiative (PLI). It lays a great foundation to maximize the benefits and minimize the costs for conservation, recreation, and the development of industry where appropriate. In the Twenty-first Century, your proposal is the best attempt we’ve seen to actually resolve persistent controversies on public lands.

We hope that your next draft will address our concerns to promote responsible off-highway vehicle (OHV) recreation in the long term. Note that they are listed in the reverse order of the discussion draft because this roughly follows our priorities.

1. Long Term Land-Use Certainty (Div. B, Title XIII) – We would prefer that this title prohibit future national- monument proclamations within the seven counties. At minimum, it should prevent large-scale monuments from being proclaimed without endorsement from the state and affected counties. Doing so would prevent egregious overreach via the Antiquities Act, which was intended to protect “historic landmarks, historic and prehistoric structures, and other objects… which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.” In practice, national monuments have severely restricted OHV recreation across millions of acres. Excluding the seven counties from Sec. 2 of the Antiquities Act would still leave land managers with sufficient authority to protect cultural resources.
2. Long Term Travel Management Certainty (Div. B, Title XII) – We support the goal of granting Class B and Class D road claims to the state. To the extent that the road data should be refined, we hope that the PLI will establish an expedited process for the state and federal government to resolve claims. Securing access to Class D roads is important because these routes accommodate the majority of OHV riding.Additionally, motorcycle singletrack and ATV trails are the most valuable routes to some OHV riders. To secure access to these non-road OHV routes, we suggest adopting a stronger “codification” of routes as proposed by BlueRibbon Coalition in 2013, or else the “no net loss” policy proposed by Grand County in 2015.In lieu of those approaches, we suggest applying the “CLOSURE OR RELOCATION” language from the Red Rock Country OHV Trail (Div. B, Title IX, Sec. 902(B)) to the Canyon Country Recreation Zones (Div. B, Title VIII, Sec. 803-810).Also, for consistency, the “CLOSURE OR RELOCATION” language from the Red Rock Country OHV Trail (Div. B, Title IX, Sec. 902(B)) should replace the “CLOSURE OR REROUTING” language from the National Conservation Areas and Special Management Areas (Div. A, Title II, Sec. 204(p)(2)(B) & Title III, Sec. 303(a)(2)(B)), including the Ashley Creek National Recreation and Special Management Area (Div. A, Title VII, Sec. 704(a)(2)(B)).Finally, we suggest replacing references to “January 1st, 2016” with “date of enactment of this Act” instead, so that current BLM and county agreements to refine the travel management plans are included up to the legislation’s date of adoption. The above detailed edits would more meaningfully secure access, provide adequate flexibility for effective land management, and protect against future misinterpretation of the statutory intent.
3. Red Rock Country OHV Trail (Div. B, Title IX) – We appreciate the designation of a long-distance OHV trail to connect Moab with Green River through the Dee Pass Recreation Zone, with Grand Junction through the Utah Rims Recreation Zone, and with Monticello through the Cameo Cliffs Recreation Zone. In particular, the construction of singletrack and doubletrack options would create a high-quality recreation and tourism opportunity for OHV and even non-motorized recreation. Our highest priority is to preserve the currently- designated routes, which are typically ridden as day loops. Nevertheless, overnight trips are increasingly popular, and new routes can be designed with the specific purposes of sustainability and satisfying a diversity of trail users.
4. Canyon Country Recreation Zones (Div. B, Title VIII) – We appreciate the designation of zones to preserve and promote all kinds of recreation.For the Klondike Recreation Zone, we accept that a purpose can be to “provide for the construction of new non-motorized trails” even though it leaves out new motorized trails. That said, the zone’s management should allow for the construction of new motorized trails (Div. B, Title VIII, Sec. 806(2)(D) & 806(3)(A)(iii)) so that a Red Rock Country OHV Trail can be designated away from the mountain bike trails, most likely west of Little Valley. Otherwise the route would utilize Little Valley Road, fostering needless crowding or conflict. Allowing for the construction of new motorized trails, without making it a purpose of the Klondike Recreation Zone, would provide managerial flexibility to the benefit of all kinds of recreation.For the Dee Pass, Utah Rims, Yellow Circle, and Cameo Cliffs recreation zones, a purpose should be to provide for energy and mineral leasing and development, rather than to promote it (Div. B, Title VIII, Sec. 809 & 810. While we agree that these recreation zones can accommodate both OHV recreation and resource development, they are key areas for non-road OHV trails. Relocating these trails can be done as needed for development to feasibly access the resources. However OHV use would be at risk of outright displacement by a stated purpose to promote energy and mineral leasing and development.The Yellow Circle Recreation Zone could benefit multiple kinds of recreation, such as 4WD rock crawling around the Yellow Circle Mine and trials motorcycling around upper Kane Creek. To do so, the boundaries should be shifted approximately one mile north-northwest. (See enclosed map and shapefile.)Likewise, the northern half Cameo Cliffs Recreation Zone should be shifted approximately one mile west- northwest. (See enclosed map and shapefile.) In both cases, this shift will bring the recreation zone closer to OHV staging areas and further away from private property without increasing the recreation-zone acreage.
5. Land Conveyances (Div. B, Title VI) – We appreciate the conveyance of Sand Flats Recreation Area (SFRA) to Grand County, as we are confident that the county could manage this area profitably without significantly raising the fees for casual recreation access or significantly impacting natural resources.However, the conveyance should cover the entire Sand Flats Recreation Area as currently designated by the BLM. Primarily this means extending the boundary west to encompass Slickrock and Hell’s Revenge Trails. Second this means extending the boundary north to encompass spurs of Fins And Things and Porcupine 4WD trails. Third this means extending the boundary south to maintain the potential for development of non- motorized trails. However, the quarter-section of SFRA that crosses Mill Creek Canyon may be designated as part of a Mill Creek Canyon Wilderness, which would reduce the total acreage of conveyance to 6,068.If SFRA is not conveyed to Grand County, then it should be designated as another Canyon Country Recreation Zone. This recreation designation would be more appropriate than an NCA designation, due to the area’s high concentration of popular OHV routes. Of course the area should continue to be conserved for its natural quality. Nevertheless, recreation is already SFRA’s dominant use, and any area designation should reflect that fact.
6. Goblin Valley Cooperative Management Area (Div. B, Title II) – We support the cooperative agreement for Utah State Parks to manage recreation around Goblin Valley. Similar to Sand Flats Recreation Area, Goblin Valley hosts a high density of OHV trails and campsites that have become increasingly popular. Therefore the area of this Cooperative Management Area (CMA) should be left out of a San Rafael Swell NCA. Instead the area of this CMA could be designated in similar fashion to the Canyon Country Recreation Zones.A purpose of the Goblin Valley Recreation Zone (or other name) should be to “promote outdoor recreation, such as off-highway vehicle use, mountain biking, rock climbing, and hiking.” Utah State Parks should develop a management plan that “provides for recreational opportunities to occur within the Goblin Valley Recreation Zone including, biking, hiking, off-highway vehicle use, including motorcycling, ATV riding, and four- wheeling, and rock climbing” and that “provides for new route and trail construction for motorized and non- motorized use to further recreational opportunities.” New routes are needed primarily to improve connectivity of the existing system of singletrack and doubletrack trails.
7. School Trust Land Consolidations (Div. B, Title I) – Particularly to motorcyclists, the Dee Pass Recreation Zone covers one of the most important OHV trail systems in all of Utah. Although our member clubs have developed a good working relationship with Utah’s School and Institutional Trust Lands Administration (SITLA) on its existing properties, the agency’s mandate maximizes revenue for its beneficiaries, which is not always in line with the public’s recreational interests. For us to support SITLA trading into the Dee Pass Recreation Zone, the PLI should grant easements for the OHV trails to Utah State Parks. Likewise, we would prefer to make the same arrangements for SITLA trading into the Cameo Cliffs Recreation Zone.The easements can be relocatable to provide SITLA with the flexibility needed to develop its property. However, relocations should create an equivalent recreational experience that provides (i) opportunities for scenic vistas, (ii) challenging terrain for off-highway vehicle travel, and (iii) connections to other existing trails. The easements should be permanent, and easement fees should be consistent with SITLA’s current fee structure. Any use fees associated with this trail system should go toward maintenance or improvements of the trails and associated facilities, not toward law enforcement or administration. Finally, these same terms shouldbe available for future easements of new trail proposals, which SITLA should consider on a case-by-case basis.Given these easements, we generally agree on the SITLA exchange locations, with three exceptions. First, the area of Lost World Butte and Tombstone Rock is remarkable for its rock climbing, iconic scenery, and springs that feed Tenmile and Spring canyons. Since it’s less suitable for development, at least six sections should be excluded from SITLA trade-in.Similarly, the northwest corner of the Klondike Recreation Zone is an area where Grand County and the BLM have constructed bicycling trails and related facilities. Due to these significant investments for mountain biking, at least three sections should be excluded from SITLA trade-in.

   Finally, the Sovereign Trail System offers the only actual ATV trails or motorized singletrack within twenty miles of Moab. Currently the state is managing it well, but if Utah proposes to trade out of most of Sovereign Trail, then we would prefer that Utah trade out of all of it so that management will remain consistent across the trail system. Excluding the U.S. 191 corridor up to a half-mile eastward, which SITLA can retain for real- estate development, at least seven sections should be added to the SITLA trade-out.

8. Arches National Park Expansion (Div. A, Title IV) – The proposed park expansion would cover five 4WD routes of particular importance, which are Klondike Bluffs, Dry Mesa, Winter Camp Ridge (to the overlook of Salt Wash), The Highlands (pipeline to the overlook of Salt Wash), and The Eagle’s Nest (from reservoir northwest of Long Valley to overlook of Salt Valley). (See enclosed map and shapefile.) Legislation should direct NPS to permit motorized use of these routes by the general public. Further, the NPS currently prohibits OHV use of any motorized routes in Arches, even if the OHVs are “street legal.” Therefore we would prefer that legislation direct NPS to permit OHV use of these routes by the general public.
9. Special Management Areas & National Conservation Areas (Div. A, Title III & II) – We appreciate the inclusion of motorized recreation as a purpose of the SMAs and NCAs (Div. A, Title III, Sec. 302(A) & Title II, Sec. 203(a) & 206(b)). However, the term “motorized” should be replaced with “off-highway vehicle” so that it’s not misinterpreted to mean only automobiles and motorcycles, or only improved roads.To further ensure the inclusion of OHV recreation as a purpose in the SMAs and NCAs, their resource advisory councils should include positions for an OHV representative. This representation is particularly important for the Bears Ears, Labyrinth Canyon, and San Rafael Swell NCAs.It should be noted that OHV routes designated in the San Rafael Swell stem not only from the 2008 Price Field Office RMP, but from the 2003 San Rafael Swell Route Designation Plan, which actually began in 1992. This exhaustive decade-long process is the reason why a San Rafael Swell NCA should adopt the BLM’s current “travel management plan” rather than rehashing the issue. Further, within a San Rafael Swell NCA, there are three OHV routes that would be bound by wilderness designated on both sides. The Eva Conover Road, Devil’s Racetrack, and Fix-It Pass should be specified as priority trails, which shall remain open for OHV use.While it may be a fair generalization that new roads should not be constructed in SMAs or NCAs, these designations should not prohibit road construction outright (Div. A, Title III, Sec. 303(c) & Title II, Sec. 204(p)(3)). For example, to reduce the negative impacts of dispersed camping, managers often install a vault toilet and develop campsites in close proximity. Technically, the resulting campground loop is a road, which would be prohibited by the PLI draft language. This rigidity would be especially problematic due to the large size of NCAs such as Bears Ears, which would stretch from the Arizona border to within five miles of Moab.Likewise, while mitigating negative impacts of OHV routes is an important responsibility of land managers and trail users, SMA or NCA designation should not require management that “minimizes conflict with sensitive habitat or cultural or historical resources” (Div. A, Title VII, Sec. 704(a)(2)(ii) & Title III, Sec. 303(a)(2)(A)(ii) & Title II, Sec. 203(p)(2)(B)(ii)). There has been a flurry of litigation focusing on the “minimization duty” originally described in Executive Orders issued during the Nixon and Carter administrations, and we believe it would be unwise and unnecessary to create a perceived connection to that terminology. Preservation advocates have broadly interpreted “minimization” in a manner that has unfortunately been embraced in at least some courts, hamstringing effective OHV management, threatening route closure, and adversely impacting public access. Therefore we suggest replacing the minimization language with that of the Canyon Country Recreation Zone (Div. B, Title VIII), which states “allows for adjustment to the travel management plan within the regular amendment process.”

   We appreciate the attempt to release NCA and Recreation Zone lands from perpetual wilderness review (Div. A, Title II, Sec. 204(n) & Div. B, Title VIII, Sec. 803(n)). Thus far, these reviews have changed forms as agencies develop new ways to manage areas as wilderness by another name. Please consider adding another part to both of these subsections, which would affirmatively state that NCA and Recreation Zone lands shall be managed for multiple uses, including OHV recreation. Also we request that you add a similar “WILDERNESS REVIEW” subsection to the general provisions of SMAs (Div. A, Title III, Sec. 303).

10. Wilderness (Div. A, Title I) – Wilderness designation is often not the most effective tool to conserve recreation opportunities or even natural resources. However, in the spirit of compromise, we will suggest modest adjustments to the PLI draft’s wilderness boundaries. First and foremost, Labyrinth Canyon was not proposed as wilderness by the Grand County Council in 2014 or 2015. If Labyrinth must include wilderness, it should be south of Spring Canyon Road. Rather than having a wilderness boundary that’s one mile from the Green, the boundary should follow currently-designated routes. Most of these routes should be excluded from the wilderness, but we are open to discussing specific route closures such as the route downstream of Spring Canyon and the route up Hell Roaring Canyon, which are currently proposed for seasonal closure (Div. B, Title XII).

Also regarding the seasonal closures, the PLI draft’s GIS data for Dead Cow Loop should not include the northern and southern spurs, as our member clubs have already worked with the BLM to plan and implement the closure of these routes. The PLI map also appears to close lower Tenmile Canyon year-round. We request that it remain open, at least from Labor Day to Memorial Day, as is proposed for Dead Cow Loop and Hey Joe Canyon. Note that, north of Spring Canyon Road, Labyrinth Canyon and its major tributaries could be designated as an NCA. However, as with any wilderness boundary south of Spring Canyon Road, an NCA north of Spring Canyon Road should not have a boundary that’s one mile from the Green. Rather it should follow currently-designated routes, which would reduce the area of protective designation by only a few- hundred acres at the north end (near Dead Cow Loop).

There is no other part of Grand County that’s more valuable for OHV recreation than the east side of Labyrinth Canyon. Seasonally restricting routes along the river, designating wilderness south of Spring Canyon Road, and designating an NCA north of Spring Canyon Road represents the limit of what OHV riders would accept.

Likewise, for OHV riders to accept a Beaver Creek Wilderness, the boundary would need to be drawn around three valuable routes south of the Dolores, which are South Beaver Mesa, Polar Mesa, and Sevenmile Mesa (to the overlook of Dolores River). (See enclosed map and shapefile.) That way, OHV riders could follow relatively-primitive routes to view a Beaver Creek Wilderness from all of its sides.

Also we request that the boundary of a Desolation Canyon Wilderness be drawn along the north side of Left Hand Tusher Canyon and the 4WD road that overlooks Swasey’s Rapid. (See enclosed map and shapefile.) This would exclude the roughly seven-thousand acres that lie south of these routes from wilderness designation, but these areas are not currently WSA’s or managed for wilderness characteristics. Doing so would allow continued use of Left Hand and the overlook of Swasey’s Rapid, which are some of the only Bookcliff routes in Grand County that offer OHV riders a trail-like opportunity. Further, the small areas south of these routes could accommodate non-motorized trail development, which would provide a positive economic impact to the city of Green River.

Since Arches and Canyonlands national parks are not developed any more than the surrounding BLM lands, we see no reason why the parks should be exempt from wilderness designation. However, as with BLM land, wilderness boundaries within parks should avoid developments such as roads and trails that require mechanized use for maintenance. Further, wilderness boundaries should avoid potential corridors for future transportation or recreation needs to meet the dual-mandate of the NPS Organic Act.

In response to the PLI discussion draft, preservation advocates have criticized the wilderness, NCA, and SMA language that they argue would create loopholes for industrial use. We understand that much of this language is intended simply to ensure effective management of wildfire, wildlife, and similar resource concerns. Nevertheless we hope that you can refine this language to be compatible with the principles of a given area designation.

Although agreement among all stakeholders has yet to be reached, we commend the Utah delegation for coming a long way toward whittling previously-insurmountable issues into details that can be worked through. Please feel free to discuss these recommendations with us. We consider this effort a top priority, and we will take all necessary means to provide timely feedback and support to advance a PLI consistent with our above- stated discussion.

Sincerely,

Clif Koontz
Executive Director
Ride with Respect

Martin Hackworth
Executive Director
BlueRibbon Coalition/Sharetrails.org

Melissa Fischer
President
Moab Friends for Wheelin’

Mike Kelso
Vice President
Red Rock 4-Wheelers

encl: discussion_draft_20jan16 -BRC edits
Yellow Circle and Cameo Cliffs recreation zones [map]
Yellow Circle and Cameo Cliffs recreation zones [shapefile]
Arches-Desolation-BeaverCreek OHV routes [map]
Arches-Desolation-BeaverCreek OHV routes [shapefile]

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

BlueRibbon Coalition/Sharetrails.org
4555 Burley Dr., Suite A
Pocatello, ID 83202-1945
208-237-1008

Moab Friends for Wheelin’
351 East Coronado Lane
Moab, UT 84532

Red Rock 4-Wheelers
PO Box 1471
Moab, UT 84532

Colorado’s General Assembly Convenes for 2016

Jerry Abboud
Executive Director
COHVCO

This marks my 30th year of being your lobbyist at the Capitol, I am happy to report its business as usual. The balance of power is still, well…balanced if you will. We have a Democrat controlled House and a Republican controlled Senate which always makes for interesting times. So far this year the important agenda we cover has had fewer issues to date, but they are exponentially more difficult.

Many of you are aware of the Counties deciding to run legislation yet again, HB16-1030, to resolve the issue of what OHVs should need to travel on county roads and municipal streets. After a summer’s worth of legislative hearings by the OHV Interim Committee, a bill was introduced. Unfortunately like many interim committees charged with unfamiliar territory, the bill was not what the counties, cities and COHVCO could live with.

This is the 5th introduction of this bill in one form or another over a six year period. COHVCO’s major concern have been the language of county inspired bills, including this years would stripp Colorado Parks and Wildlife’s authority over OHV use and shift it to the counties whereas the bill should only have granted limited authority to counties/cities/towns to set minimum standards for use of roads and streets only.

After years of negotiations the political subdivisions of the state agreed with us about who should be managing OHV use and we joined them in the amendment that struck most of the 16 pages of the language of the committee bill and simplified it while retaining Parks and Wildlife authority except concerning local government road designation.

The counties will continue to set whatever they deem the appropriate age limits from allowing underage operator They may also require a driver’s license for road use. This does allow more sparsely populated counties the opportunity to allow younger operators. Additionally, proof of insurance may be required for licensed drivers. These very simplified requirements make it much, much easier on the OHV public

The HB16-1030 has passed the House and is awaiting introduction in the Senate. Hopefully, it will get a clean bill of health. But, if we do hit a serious snag you will receive a COHVCO alert with e-mails and phone number of legislators to encourage them to move the bill along. It is you who poessess the ultimate ability to convince what is a close call.

Another bill proving extremely difficult is SB16-010 that attempts to severely restrict the ability of dealers to obtain titles for used vehicle which almost completely prevents consumers from obtaining a title for purposes of a consumer loan and will add years to creating a viable data base for stolen property. This critical data base protects owners from theft by dissuading thieves while making the return of stolen vehicles to rightful owners easier on a more statewide and even nationwide basis. This bill is, unfortunately a vindictive bill by a legislator who, despite being present in the Senate 3 years ago at the bill’s passage and 3 years later, he has refused to see us despite having ample time to approach all of the interested parties. As I surmised, the County Sheriffs and County Clerks whom I explained would jump ship. Did so, and has now made this a bit easier.

The bill has passed the Senate, but after weeks of negotiations with the House sponsor he has agreed to listen to COHVCO’s request for an amendment and is doing so at this time. I will be working with Legislative Legal Services in drafting the amendment(s). If the degree of cooperation necessary is lost we reserve the right to move to kill the bill, despite apprising the legislators we want to avoid that scenario at all costs…to a point and they understand our position.

While only one month into a 4 month session, there is much, much more to come (another 300 bills).

COHVCO has contracted with a unique lobbyist who understands our issues who has contacted with us for a minimal amount. He has already proved his worth on multiple occasions He has been of great help to COHVCO and its members. His biography can be found in this magazine.

We understand the delay in publishing the legislative report due to the time frame of at least 60 days to publish. However, we will do our e-mail alerts as critical issues come up during the publication period.

Please help us by sending in your email address to receive the alerts if you have not done so. Simply go to our website at COHVCO.org and provide us the information.

They are not shared with anyone else except members, OHV clubs and organizations and yes that means 4wd and snowmobiles clubs, also.

Talk to you next edition with what will be new issues to report.

Public Comment Processing
Attn: Docket No. FWS-HQ-ES-2015-0169
USFWS- MS: BPHC
5275 Leesburg Pike,
Falls Church, VA 22041-3803

RE: Methods for priority of reviews

Docket Nos. [Docket No. FWS-HQ-ES-2015-0169; 4500030113]

Dear Sirs:

Please accept this correspondence as the statement of support for the Proposed revisions to the Endangered Species Act (“the Act”) petitioning/management process indentified in the above docket numbers (hereinafter “the Proposal”). The Organizations believe that this Proposal represents a good first step in the overhaul of the Act and related process to make the Act more effective in benefitting species on the ground. The Organizations are very aware that the Act when taken in combination with other pieces of legislation, mainly the equal access to justice act, has created a cottage industry for several Organizations where suing the Service is the business model. Clearly this issue cannot be resolved by the Service but the Organizations submit that the proposed steps are moving toward resolution of this issue.

The Organizations submit that reform of the Act and related process is very important to the continued recreational usage of public lands throughout the country. Often recreational access is lost due to non-specific concerns regarding a possible impact to species that were only generally address in a petition for listing under the Act. Many of the factors identified as challenges to the Service in the Proposal are also issues that have directly impacted recreational usage of public lands as the Petitioning process often results in gridlock for land managers that are cautious of being sued for decisions and want to appear to be responsive on these types of issues.

Prior to addressing the specific reasons for our support of the Proposal, we believe a brief summary of each Organization is needed. The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization the 150,000 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 insure 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 winter motorized recreationists across the state to enjoy their passion. CSA advocates for the 30,000 registered snowmobiles in the State of Colorado. CSA has become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling by working with Federal and state land management agencies and local, state and federal legislators. For purposes of this document, CSA, COHVCO and TPA are identified as “the Organizations”. The Organizations have been heavily involved in a wide range of Endangered Species Act related issues and the Organizations submit that a vibrant wildlife population is a critical component of providing a high quality recreational experience and this recreational experience is made better when recreational users are able to experience a species that was once listed and has recovered to the degree that ESA listing is no longer necessary.

1. The Organizations submit that the Proposal is both critically necessary and an appropriate use of limited resources.

The Organizations would like to address the legal standard articulated by the US Supreme Court when agencies are addressing the situation where limited resources are directed towards minimally significant issues and more major concerns are not being addressed. The Court stated as follows:

“And it is particularly so in an age of limited resources available to deal with grave environmental problems, where too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems.”¹

While this decision does not directly relate to the Act, the Organizations believe that the principals and intent articulated by the Court are HIGHLY relevant to this discussion. Given this clear statement of concern over the wasteful expenditure of agency resources for minimally beneficial activities in an attempt to manage an environmental issue, the Organizations believe that current efforts and changes to the administration of the ESA are both legally defensible and an expected function of the agency. Clearly creating legal briefs and other documents necessary for litigation creates minimal benefit to the species as management budgets that could benefit species on the ground are often lost in an attempt to offset these litigation costs.

2. A lack of science is not the basis for a listing of a species on the ESA list.

The Organizations are entirely too familiar with the fact that many petitions for listing of a species or designation of critical habitat for a species already listed are based on a lack of science surrounding the species. This lack of science is then relied on by petitioners to artificially create a sense of urgency to support the listing rather directing resources towards a truly science based management concern for a particular species. The Organizations are aware that often assertions of the lack of scientific research are surrounding species that were only recently identified as a separate species in the petitioning process. The Organizations are concerned that this creates a self-fulfilling prophecy as species are divided and then the lack of research into the species is relied on for listing of the species as threatened or endangered.

These issues are directly highlighted by the recent CBD petition to obtain designation of the Mohave Shoulderband Snail as threatened or endangered. This petition submits the listing of the snail is warranted as “land snails as a group are poorly known and understudied”. ² The Organizations submit that this position is clearly not based on best available science and clearly evidences a need for research and investigation into the species and its possible decline and is very telling as to the faulty basis for the emergency listing. The Organizations are aware that similar concerns are raised around a wide range of amphibians and other smaller sized creatures, where threats are often diverse and distant and may not be able to be addressed under the Act. This type of a concern is properly reflected in the categorization of these concerns as a low priority listing but as a heightened priority for research.

3. Too often the ESA is relied on by those who are opposed to projects and failed to be involved in the NEPA process.

It has been the Organizations experience that the ESA listing process allows an entirely separate course of action to allow those opposed to a project to derail collaborative efforts that might be in place to benefit the species that have been developed in the NEPA process. The Organizations are aware of numerous trail improvement projects that are derailed by ESA issues raised by those that are merely opposed to multiple use. It has been the Organizations experience that the driving force of some of these efforts has more to do with a personal interest opposing a project or philosophical opposition to a particular activity. This must be addressed in any revision to the prioritization of issues under the Act.

4. The §7 consultation process must be amended to insure that both positive and negative benefits from planning efforts are reflected.

Too often the Organizations are aware that land managers stop analysis of ESA issues at determinations of “no negative impact” from planning in the §7 consultation process. The Organizations submit that stopping at this point precludes viable opportunities for management actions to benefit species as managers often continue without asking if the proposal is even related to the threats to the species. The impacts of such an arbitrary limitation on analysis recently occurred in the Bear Creek area outside Colorado Springs, CO. Managers were sued regarding recreational usage of lands around Bear Creek and possible impacts on genetically pure cutthroat trout. Litigation was settled and NEPA was commenced but no one ever identified the threats to the species at the location or that a very old and deteriorated dam was the only obstruction between the genetically pure fish and their primary threat, mainly reintroduced hybrid fish. This arbitrary limitation on analysis should be avoided as limited resources can easily be directed towards issues that are entirely unrelated to the species decline.

5. Increased consultation with State Wildlife agencies must be addressed.

The Organizations are aware of recent rulemaking efforts from USFWS that are seeking to incorporate expanded consultation with State Wildlife Agencies as part of a listing or period review.³ While the Organizations are concerned regarding the increased administrative burdens that may result to state wildlife agencies from these new filing requirements, these risks are minimized if these costs are clearly addressed in the development of the new process outlined in the Proposal. While many of the species that are the basis of petitions have a respectable amount of information easily available for public review, there is an ongoing discussion regarding what is a species, and the Organizations are concerned that a significant amount of work could result to state agencies resulting from applications regarding species that have been recently identified as a newly found species. Often these decisions are highly complex and rely on a large amount of professional expertise. These costs and efforts should be specifically addressed in the mechanisms developed in the Proposal.

The Organizations believe state involvement and consultation is critical in developing a meaningful petition. The rulemaking proposal seeking increased state involvement properly recognizes that state wildlife managers are often the primary source of information for a species that is not listed on the ESA list. The Organizations believe any concerns of state wildlife managers must be meaningfully reviewed as State Wildlife managers are often faced with the same ever declining budgets as Federal wildlife managers are faced with.

6. The question of “What is a species?” simply must be resolved.

Currently if a possible species fails any portion of the questions used to define “what is a species” is the species is listed separately under the Act until such time as it can be proven there is or is not truly a separation of the species from others not listed. The Organizations are aware that the question of “what is a species” is the basis for ongoing and vigorous discussion in the scientific community. Currently listing criteria can result in two species looking identical with slightly different genetic traits, arguably be broken into separate populations and both be listed. On the conversion, species can look very different and be genetically identical and again both be listed. This situation has been exemplified with the Alabama sturgeon, Greater/Gunnison Sage Grouse and is exceptionally common in the listing of various plants, where exceptionally minimal differences are identified as the basis for an ESA listing and a common weed. The Organizations are intimately aware that answering this question has profound impacts on many facets of ESA actions but it must be looked at. The ever changing target of what is a species makes conservation efforts difficult if not impossible. If there are questions similar to this involved in a listing, the Organizations submit that these questions must be resolved and that placing these proposals into lower priority categories would reflect the proper management of this issue.

7. Science based population targets should be included in the listing petition process.

The Organizations submit that an additional requirement for placement of an ESA petition into a higher priority category must be included, which is the inclusion of a population objective for the species if the petition should be granted. 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 participants 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. If there are these types of goals available, this should heighten the species on the priority category list.

The Organizations also vigorously assert that such population goals are required in all governmental proceedings by Executive Order. On January 18, 2011, President Barack Obama issued Executive Order 13563, which specifically required that all agencies:

“(4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt;”⁴

The Organizations are unable to provide any reason why this Executive Order would not be fully applicable to ESA listing petitions and related actions. The Organizations submit that clear and definite population objectives are a critical to actually benefitting the species and avoiding management that targets behaviors that are often unrelated to the decline of the species. The failure to provide these goals and objectives simply casts a cloud over the entire ESA process.

The Organizations believe that population goals are important for another reason, which is directly related to ongoing discussions to address what is a species. Too often traditionally recognized species, such as the grouse have been broken into dozens of separate species. Population goals would allow each of these new subspecies to be more accurately tracked and meaningfully analyzed to insure that the listing, associated management objectives and populations remain viable on the ever reducing habitat areas that are being occupied by each newly found species of the Grouse.

8. Conclusion.

The Organizations support the proposed revisions to the ESA petitioning process indentified in the above docket numbers. The Organizations believe that this Proposal represents a good first step in the overhaul of the ESA listing/petitioning process to make the act more effective in benefitting species on the ground. The Organizations submit that there are several other issues that should be addressed in the revisions to the petition process to make the process more cost effective, minimize impacts to unrelated parties from petitions that are verging on entirely frivolous and insure that efforts actually benefit the species at issue.

Please feel free to contact Scott Jones at 518-281-5810 or via email at scott.jones46@yahoo.com or via USPS mail at 508 Ashford Drive, Longmont, CO 80504 for copies of any documentation that is relied on in this appeal or if you should wish to discuss any of the concerns raised further.

Respectfully Submitted,

Scott Jones, Esq.
COHVCO/TPA Authorized Representative

Don Riggle
Director of Operations
Trails Preservation Alliance

1 See, Entergy Corp v. Riverkeeper Inc et al; 475 F3d 83; (2009) Opinion of Breyer J, at pg 4

2 See, DOI; Before the Secretary of the Interior; Emergency petition to list the Mohave Shoulderback Snail (Helminthoglypta(Coyote) Greggi) as threatened or endangered under the Endangered Species Act; CBD petition; January 31, 2015 at pg 6.

3 See, Docket Nos. FWS-HQ-ES-2015-0016; DOC 150506429-5429-01.

4 See, Executive Order No. 135623, 76 Fed. Reg 3821 (2011).