Archive | January, 2024

Public Comment Processing
Att: FWS-R6-ES-2023-2016
US Fish and Wildlife Service MS PRB/3W
5275 Leesburg Pike
Falls Church, VA 22041-3803

RE:  Proposed Wolverine Listing and Updated Assessment, Docket No. FWS–R6–ES–2023–0216

Dear Sirs:

Please accept this correspondence as the comments in vigorous opposition to the Proposed listing of the wolverine and updating of the species status assessment addendum(“The Proposal”) from the Organizations. Our opposition to the Proposal is not a position we take lightly or without thought as the motorized community has been supporting wolverine and related species research for several decades. Our support has included direct funding of research and donations of equipment for researchers. When those researchers have run into trouble in the backcountry while performing their research, we have been the members of the public that recovered broken equipment, stuck riders, and provided other indirect support for the researchers. This research partnership has spanned almost a decade with the hope of identifying the relationship between wolverine populations and recreation in all forms. Given the relationship  we have had with globally recognized leaders in research of wolverine challenges, we are intimately aware of the lack of relationship between wolverine populations at the landscape level and dispersed motorized recreation as this has been the basis of extensive candid discussions.

We are disappointed the Proposal twists what has historically been a good partnership working towards solutions for the species and several other species into an overly political and highly charged discussion again.  Rather than recognizing the decades of research that has failed to establish a relationship between wolverine populations and dispersed recreation , the Proposal simply asserts that research has never been undertaken. This position could not be further from the truth but rather directly evidences one of the most glaring failures of the Proposal.  Inconclusive research is simply not the basis for listing but is rather an indication that the relationship being researched does not exist.  In direct contrast to the efforts, we have undertaken to support research, where we have worked hard with researchers to clearly identify challenges or conclusions to benefit the species. The Proposal often entirely misquotes conclusions of works, ignores other research entirely, applies legal standards in a completely inconsistent manner to create what can only be summarized as a worst-case scenario for the wolverine in order to support a possible listing.  This is frustrating and disappointing to us as we have decades of effort supporting high quality research to try and resolve these questions and results in a listing decision that is largely indefensible on the merits.

Our opposition to the Proposal is based on both the poor level of analysis provided on the wolverine as this will not benefit the wolverine.  Our opposition is also based on the horrible precedent that it is setting as an ESA listing should not be based on an inability to establish a relationship after years of research.  ESA listings must identify actual significant threats to the species and address those challenges. Arbitrarily elevating political concerns outside the species will never protect the species  or remove it from listing.  A listing decision must be based on best available science and not the arbitrary creation of a fact pattern that is now being made to support previously made decisions.  We are concerned that the result of this effort will be an immense amount of conflict in any planning effort that will generate no benefit for the species.

While we are opposed to the listing based on the lack of credible science, the decision not to designate critical habitat is supported as there is no change in population trends and many researchers have determined that populations are increasing.  Until arguably accurate population counts can be created, and far more accurate information can be identified regarding the life cycles of the species, there is no reason to designate critical habitat.

Who we are.

Prior to addressing the specific concerns, the Organizations have regarding the Proposal, we believe a brief summary of each Organization is needed.  The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization of approximately 250,000 registered OHV users in Colorado seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is a largely volunteer organization whose intention is to be a viable partner, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of trail riding.  The TPA acts as an advocate of the sport and takes the necessary action to ensure that the USFS and BLM allocate to trail riding a fair and equitable percentage of access to public lands. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite the more than 30,000 winter motorized recreationists across the state to enjoy their passion.  CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport.  CORE is an entirely volunteer nonprofit motorized action group out of Buena Vista Colorado.  Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. The Idaho State Snowmobiling Association (“ISSA”) is an organization dedicated to preserving, protecting, and promoting snowmobiling in the great state of Idaho. Our members may come from every corner of the state, but they all share one thing in common: their love for snowmobiling. Our mission is to keep trails open for all users to enjoy.  For purposes of these comments, TPA, CSA, CORE, IRC, ISSA and COHVCO will be referred to as “the Organizations.”

2(a). Wolverine research and its support by the motorized community.

The motorized recreational community across the country has been actively supporting wolverine and lynx research for more than a decade to address the lack of data on wolverine and lynx response to all forms of recreational activity. This concern was identified more than a decade ago. These efforts have included efforts by globally recognized species experts such as Jeff Copeland, Bob Inman and John Squires. Our efforts have also included years of involvement in Colorado’s lynx blueprint effort and wolverine reintroduction discussions.  These meetings partially  drove our increased involvement with the wolverine research and addressed many issues that are simply dismissed in this Proposal, such as the ability of avalanche mitigation work to impact denning wolverines, who frequently den in avalanche chutes. These possible incidental take issues  were of significant concern for DOT and ski areas that performed significant avalanche mitigation but was not a concern for dispersed recreation as we did not do this work.  Rather than addressing this issue, developed ski areas are simply excluded as possible impacts and avalanche mitigation efforts are never mentioned. As parts of this effort, we have been able to identify management standards to protect individual denning wolverines from all recreational risks with implementation of standards such as  temporary closures around confirmed denning sites for all recreation activity.

The wide-ranging support of the motorized community for these efforts have been specifically recognized.  The Idaho State Snowmobile Association was a recognized partner on years of research on the relationship between recreation and wolverine populations as follows:

“We are grateful to our multiple partners and collaborators who have assisted the project in numerous ways. Funding and equipment for the project has been contributed by the US Forest Service, Southwest Idaho Resource Advisory Committee, Southeast Idaho Resource Advisory Committee, Round River Conservation Studies, U.S. Fish and Wildlife Service, Idaho Department of Fish and Game, Idaho State Snowmobile Association, The Wolverine Foundation, Sawtooth Society, Central Idaho Recreation Coalition, Brundage Mountain Resort and the Nez Perce Tribe.”[1]

The motorized community has also been very involved in supporting cutting edge research that provided real time feedback on the response of species to all forms of recreation outside the work of the wolverine foundation. Our efforts have supported ground breaking research in Colorado, which was again recognized as follows:

“We thank W. George for valuable assistance with preliminary data analysis, the many field technicians that distributed GPS units to recreationists, the participants who volunteered to carry the GPS units, the outfitters and guides who agreed to carry them, and the local FS offices for providing logistical support and information about the area.”

This research yielded immediately identifiable data that could be broken down by user type and lynx location as exemplified by the following charts:[2]

Fig. 2. Examples of recreation tracks recorded with GPS units during the study in western Colorado, 2010e2013. Panel A) snowmobile tracks primarily on trails in the Vail study area, B) hybrid skiing in the Vail study area; thick lines near the bottom of the picture show snowmobile travel, while thinner dispersed lines further back show skiing, C) backcountry ski recreation in the San Juans study area, and D) a combination of all three recreation types at the Vail study area, showing areas of overlap as well areas used primarily by one recreation type. Image credit: Google, DigitalGlobe.”

It is deeply troubling that the Proposal fails to even discuss the inherent conflict in this research being available as use of this model of research was specifically requested by Barrueto.   This model of research not applied by Barrueto but he was seeking to perform this research in the future. We have participated in this effort and can state with certainty it is not expensive or difficult to perform currently.   With the listing of the species, collaborative efforts on research like this will simply cease to exist. This impact should not be overlooked and has also been the basic of extensive scholarly discussion.[3]

The involvement and support of the motorized community in supporting this research forces us to ask many basic questions unrelated to recreation and much more closely related to the basic process on how the Service can drive and support the development of research processes like these. These processes are critical to the implementation of management that actually benefits the species. One step the Service can do in supporting research such as this is to lower the reliance on less developed and accurate methodology for the listing of species rather than making failed foundational efforts such as this a cornerstone of listing decision. This basic step to improve underlying processes has failed to be taken in the Proposal, as rather than addressing this groundbreaking new work and facilitating its expanded usage,  the Proposal continues to be based on largely anecdotal evidence that is then supplemented with layers of supposition and conjecture. While the failure of some researchers to apply best available scientific methods is concerning, the adoption of such flawed research methodology by the agency as the sole basis for species listing is astonishing.

The systemic failures of the basic scientific, rulemaking and listing process has resulted in decisions that are highly predecisional and arbitrary in nature. The Proposed listing provides for impacts far wider ranging than merely using reasonably research methodology.  The listing seeks to create the ability to unilaterally interpret research data and unilaterally and allow the Service  reach conclusions of their own without regard to the conclusions of the researchers.  This is hugely problematic as this will alter the flow of research and data and silence research that could conflict with a future listing. This type of data on issues is critically important as any researcher that may contradict a conclusion must provide peer reviewed and published data to support their decision as to why a factor is or is not a priority for management.  If the Service can subsequently revise data and conclusions of researchers to support a predecisional listing decision, the value of the scientific process is entirely lost.  This is far more of a concern than the listing of any species could ever be as the only way to protect a species is to truly identify threats to the species without political pressure so they can be addressed.

The conflicts that have resulted from the cavalier nature of the update of the listing decision is also reflected in the completely inaccurate summary of the current efforts for a species reintroduction in Colorado.  Another concerning failure of the Proposal, astonishingly inaccurate summary of current Colorado status of species, which the Proposal summarizes as follows:

“Colorado Parks and Wildlife had previously considered reintroducing wolverines to Colorado as a nonessential experimental population to further their conservation (see 78 FR 7890; February 4, 2013). However, that proposal was withdrawn in 2014, when we withdrew our proposed listing rule (see 79 FR 47522; August 13, 2014). There is currently no formal proposal to reintroduce wolverines to Colorado.”[4]

The complete conflict of this position with even the CPW website on the wolverine is immediate as the CPW website on the wolverine provides the following summary:

“Wolverines have been extirpated from Colorado, but Colorado Parks & Wildlife is in discussions with partners and stakeholders about the potential to restore this species to Colorado’s High Country.”[5]

Even basic research into this situation would have resulted in awareness that on every CPW Parks and Wildlife Commission meeting to occur over the last year a wolverine reintroduction update has been provided to the public. Colorado Legislature is also developing legislation to allow the reintroductions of wolverines to occur in the State as well.[6]  With failures of basic information such as this, the Organizations must oppose the listing and update as foundational information  on the Proposal simply has not provided or has not been obtained.

2(b) The Colorado situation evidences why scientific process matters as actions that may warrant incidental take authorization from the Service are simply not mentioned in the listing.

As noted the motorized community has been involved with wolverine discussions for more than a decade, we are aware of significant issues that may warrant an incidental take authorization from the Service for operations.  Many of these incidental take issues simply are not mentioned despite the critical public safety efforts that could be stopped without an incidental take authorization. Avalanche mitigation efforts are commonly performed by State Departments of Transportation for public safety and performed by ski areas for the safety of those users. Avalanche mitigation efforts were a primary concern for possible wolverine impacts as female wolverine are most vulnerable to this type of action as they tend to den in avalanche chutes due to the deeper and more persistent snow.  This results in female wolverine mortality being disproportionally impacted by avalanche mitigation efforts. We have attached  selected documents from the Colorado stakeholder meetings on the wolverine in 2011 addressing these concerns and how an incidental take permit could address these issues.  These are serious concerns for our members and should be addressed in the listing. Avalanche mitigation efforts with transportation infrastructure simply are not mentioned at all and ski areas are simply summarily dismissed as a possible threat.

Again, the Organizations must question how issues such as the need to issue incidental take authorizations for avalanche mitigation efforts directly killing denning wolverines was not recognized as an immediate problem.  It was one of the first things that came up in the Colorado effort and we are not aware of why an incidental take would not be authorized in this situation. While these are efforts that are generally not performed by the snowmobile community, these efforts provide significant value to our membership and warrant protection.

2(c)  Carcass management has been hugely effective in protecting all species but is not mentioned in the listing as a noncontroversial tool to protect wolverines.

As noted previously the Organizations were active participants in the 2011 Colorado effort to reintroduce wolverines. Several of these meetings addressed successful efforts undertaken by CDOT in protecting wildlife, such as wildlife overpasses, fencing and active carrion management plans by CDOT. Many of these tools benefitted multiple species at significant levels. CDOT efforts with wildlife overpasses have been hugely successful in protecting deer, elk, lions and every other species that must cross an interstate.[7]  Clearly these are tools that would protect a species like wolverine, and if we assume these population estimates that are in the listing.  For the sake of discussion if these estimates are accurate  wouldn’t these be primary tools to protect wolverines from direct mortality as even the loss of one animal could result in a significant percentage decline in the population. Instead of focusing on tools like this the listing continues to focus on anecdotal concerns supplemented with layers of theory and supposition that may never result in any benefit. This is a concern and causes us to think the Proposal is politically driven rather than seeking to protect the species.

While we are aware that building overpasses and miles of fencing is expensive, CDOT also shared their high levels of success in protecting predators, like lynx, fox, and lions by simply removing carrion from roadkill in a more timely manner. CDOT managers  found that the removal of these carcasses removed the desire for predators to investigate these as possible food sources along interstates. Their research found that species like lynx and lion moved through the areas surrounding the interstate much more quickly and as a result were far less apt to be struck by a motor vehicle. These preliminary conclusions provided by CDOT were recently confirmed by researchers who found wolverine, lynx and other omnivores spend significant time at carrion sites. [8] This research indicated this behavior may create a host of new management issues and challenges, only confirming the preliminary data from CDOT almost a decade ago.  Given that wolverine are well known feeders on carrion, wouldn’t a step like addressing roadside carrion in wolverine habitat be effective for protecting the species and highly efficient in achieving these goals? Again,  this is simply not discussed despite recent research indication wolverine behavior is heavily influenced by the presence of carrion.

2(d) Ski area management was historically a primary topic of management concern and was simply removed from Proposal.

The Proposal fails to provide any basis for the altered management of wolverine in relation to ski areas operations. The treatment of developed ski areas in the Proposal stands in stark contrast to the position of the Service clearly expressed in the Colorado stakeholder efforts in 2010 & 2011. These professionally facilitated meetings spanned more than a year and were consistently attended by 30 plus people.[9] As noted previously the snowmobile community was heavily involved in Colorado based wolverine workshops where possible impacts of human activity on wolverine populations looked VERY different from the Proposal.  As discussed in more detail in the attachments, ski area operations were a major concern for the ski area operators, the Service and CPW. As a result of this ambiguity, we spent extensive time exploring incidental take authorizations and other tools to provide clarity for ski areas in this process.  While the Proposal asserts to be applying new research, we must ask what new research was published to support removal of all ski area operations as a threat or possible need for an incidental take authorization?  This process would be highly valuable to our interests as it is clearly highly effective in removing functionally similar activities as possible threats to the wolverine.  We would like to apply this model of research immediately.

We must ask what is the basis for this change, the extensive discussions that occurred after these wolverine workshop meetings which only compounds this question as ski area operations are a priority concern in every USFWS analysis document prior to the Proposal. The concern for possible impacts from developed ski areas was summarized in the 2013 listing as follows:

“Preliminary results from an ongoing study on the potential impacts of winter recreation on wolverines in central Idaho indicate that wolverines are present and reproducing in this area in spite of heavy recreational use, including a developed ski area, dispersed winter and summer  recreation, and dispersed snowmobile use (Heinemeyer et al. 2012, entire).”[10]

The  2018 Science update on the wolverine was FAR less than compelling basis to determine there was no relationship between ski areas and wolverine in its summary of the analysis of ski areas which  provides as follows:

“They also reported that wolverines responded negatively to increasing intensity of winter recreation, with off-road and dispersed recreation having a greater effect than recreation that was concentrated on access routes (Heinemeyer et al. 2017, p. 34). In addition, wolverine avoidance of roads and groomed areas used by winter recreationists was less than estimated for dispersed recreation, suggesting that wolverines may be less sensitive to predictable winter recreation use patterns (Heinemeyer et al. 2017, p. 40).”[11]

The 2018 Survey for the wolverine also clearly stated that all recreational activity maybe a concern as follows:

“However, this research also found that wolverines maintained their home ranges within areas with relatively high winter recreation activity over several years of monitoring, including some areas found to contain the highest recreational activities (Heinemeyer 2016, pers. comm.). The study has not been able to determine whether these resident wolverines are reproductively successful due to the limited monitoring information available for reproductive females (Heinemeyer 2016, pers. comm.).”[12]

The comical amount of ambiguity in this position on winter recreation is immediate as we are aware of numerous heavily used winter recreation areas existing within wolverine habitat. We are also aware of numerous snowmobile recreation areas that have visitation levels that exceed adjacent ski area levels of visitation.  We are unable to even theorize what “relatively high winter recreation activity” even means as a standard, making any discussion of levels of usage between these two issues impossible. The Organizations are also aware that some back country opportunities on ski areas include much lower intensity opportunities such as cat skiing, hybrid skiing and human powered opportunities. These opportunities are provided at low levels of intensity of usage.  This is another indication that information is not accurately conveyed in the Proposal and the limited information that is applied is simply arbitrary.

The arbitrary nature and failed decision making of the Proposal is exhibited by the 180 degree change in the basic level of concern around the management and operations of ski areas and possible impacts of ski area operations on wolverine.  The Proposal summarizes the change in analysis for ski areas as follows:

“The analysis includes various studies concerning the effects of backcountry recreation on wolverine habitat. These studies looked at various types of backcountry recreation including skiing, snowboarding, snowshoeing, and snowmobile use. The studies found that wolverines avoided high quality habitats within their home range where these activities were occurring. The service is not concerned about the effects of winter recreation in established and developed areas such as ski resorts at this time”[13]

The Organizations would be remiss if it was not raised how any research was applied and related to how decisions were made in the Proposal appears less than accurate.   The inference from this position is developed ski areas have MORE impact than a groomed route by itself. This creates a significant problem for the current Proposal, as it arbitrarily removes ski areas from further management while the lesser threat of dispersed recreation is elevated for management despite the large overlap in terms of the two activities on the ground.  There are simply no discussions provided, or research cited, to address this change in management position on ski areas from the 2018 Science update

3a(1) Have the Terms of the Court decision driving this entire process been complied with?

As we have  in these comments, the Proposal suffers from several basic foundational problems as it fails to accurately reflect clearly stated research conclusions and overlooks many other documents entirely. The poorly documented change in positions on so many foundational issues with the listing forces questions such as “Has the settlement been complied with?” The Court  Decision driving this entire process clearly states the documentation standards for the future listing efforts as follows:

“The Service must rationally explain why the uncertainty regarding [a particular issue] counsels in favor of [one conclusion] rather than the opposite conclusion.”[14]

The Organizations must ask this question before even addressing more generally applicable standards.  The settlement clearly sets a high standard for compliance with its decision. It is unclear if this standard has been complied with. It is our position the listing proposal has failed to comply with this standard.

3(a)(2)  The Proposal ignores conclusions of researchers and simply reinterprets data to  create a fictional theory to support the listing of the wolverine and predecisional management restrictions.

Two of the foundational objections from the Organizations regarding the Proposal are: 1. The relationship between wolverine populations and recreation had not been researched previously; and 2. The assertion that the relationship of recreational activity and wolverine populations has changed based on new research. Wolverine research is an issue the motorized community is intimately familiar with as we have partnered for almost a decade in research efforts on the species and possible negative responses of wolverine to human behavior.

It has been our position that the wolverine population is not impacted by human activity simply based on common knowledge, which we also knew was insufficient to support any decision making for a proposed listing.  As a result, the inability of researchers to establish a relationship comes as no surprise. We simply never expected to find one.  What is surprising the fact that recognized leaders in wolverine research have now concluded more vigorously and completely than ever before that the relationship does not exist and that statement is simply never mentioned in the Proposal.  Even if research indicated there was a risk from human activity to the wolverine, this impact could be reduced to nonexistent levels with temporary seasonal closures around confirmed denning sites while they are in use.   This situation should not be surprise as our community has effectively resolved problems for decades and the only way we can actually resolve the wolverine listing issue is by establishing an accurate count of wolverines and understanding what issues are impacting the species, is any and what issues are not impacting the species. The Proposal entirely fails to do this basic work.

Our partnerships have resulted in huge amounts of new ground breaking research on species of all types and we remain proud of these efforts as they have benefitted the species and recreational users of all types.  Our position on the wolverine historically is founded upon the open and free exchange of information, high quality research  and the ability to discuss concerns, data and theories in terms of scales of threats and how they can be resolved if these relationships are significant. The Organizations are highly frustrated that the Proposal systemically takes peer review published research out of context to support a predetermined conclusion other than those clearly identified by the researchers in the publication.  The Proposal simply ignores the conclusions of the researchers work it is asserting to rely on or simply provides an entirely inaccurate summary of the issue to support a conclusion that directly contradicts the conclusions of the researchers. This is entirely a violation of basic scientific processes and abuses the wild discretion the service has in addressing threats to any species and entirely outside legal requirement of listing being based on best available science. This failure is deeply troubling and regardless of the conclusion would be opposed by our Organizations.

The failure of the Proposal  to even accurately address the conclusions of researchers  starts with research that the Proposal uses a foundation for a lot of the analysis provided. The Proposal provides the following summary of researcher’s conclusions on the relationship between recreation and human activity as follows:

“A large multi-State analysis of winter recreation impacts in the Northern Rocky Mountains was published in 2019, indicating greater concern for impacts to wolverines than we found in 2018 and showing a negative functional response to the level of recreation exposure within their home ranges (Heinemeyer et al. 2019a, pp. 13–14, 17–18).”[15]

The Proposal refers to this research as the 2019a Heinemeyer research and the conflict between this summary and the conclusions of the research are immediate and unresolvable.  The 2019a  Heinemeyer publication actually specifically provides highly important context and scale to their entire analysis around human activity.  The 2019a Heinemeyer research states the context for their discussions  as follows:

“The importance of dispersed motorized recreation to male wolverine resource selection ranked 10 out of 13, while avoidance of dispersed non-motorized recreation was similar to females at a rank of 6. Avoidance of linear recreation by male wolverines was marginally insignificant (P = 0.056) and of lowest  importance (Table 4).[16]”

The Listing Proposal cites to the Heinemeyer 2019a study 15 separate times.  The Science update cites to Heinemeyer 2019a an additional 15 times.  Given this work is cited 30 times across the consolidated documents provided by the Service, this clearly identifies the significant weight of work  the Service has placed on this work to the listing.  This would lead to the conclusion the listing has reasonably accurately reflected this research in their documents.  That assumption would be entirely incorrect.

The Organizations are unable to distinguish how the conclusions of this work  could be aligned in any other manner than supporting the conclusions of the 2018 SSA about the minimal concern for general human activity and wolverine populations. Dispersed motorized recreation ranking 10^th out of a possible 13 threats to the species overall is  clearly not greater concern in the 2019a research when compared to the 2018 SSA.  Any assertion of greater concern is further undermined as human activity for male wolverines was the lowest factor analyzed.  Rather than being greater concern this is clearly supporting the identification of recreation and human activity as a low priority threat as stated in the 2018 SSA. Clearly this research is insufficient to support any assertion that the only response from wolverines regarding motorized recreation is a management concern as females showed more response to nonmotorized recreation in comparison to motorized recreation. This is certainly not sufficient research to support any management decisions or elevation of threats from recreation to the wolverine as the Service moving a 10^th place finisher to 1^st place is an astonishing feat even today.

Understanding the context for the discussion in the Heinemeyer 2019a research creates significant problems for the assertion of greater concern expressed in the Proposal when it is accurately summarized.  These types of conflicts only explode when the full scope of subsequent research is actually addressed.  Heinemeyer 2019a  is also not the largest group of researchers to be unable to find a significant relationship between human activity and wolverine populations after years of work.  In 2020 a coalition of 17 global leaders in wolverine research, representing every state in the lower 48 that have wolverine populations,  specifically  concluded that they were unable to establish any relationship between all human activity and wolverine populations.  This conclusion was specifically outline as follows:

“We found no association with vegetative productivity, human disturbance, and habitat patch size. Our sampling design may have limited our ability to detect those effects because the sampling frame was based of models of predicted wolverine habitat. The models placed the sampling frame in areas with higher elevations, less human disturbance, and more forest than the 4 states surveyed contain in general. The restricted range of covariate values observed may have had more influence on the lack of importance than any other reason. In addition, the scale of the sampling cell, 15 km × 15 km, also averages over a large area of variable conditions; therefore, single values of co variates at that scale may show dampened relationships as compared to e-scale resource selection.”[17]

This research is not even mentioned in the Proposal, which is astonishing as the Proposal cites to other works by Lukacs addressing climate change and water resources.  A complete copy of this article is attached to these comments as Exhibit 5. The direct and unresolvable conflict between the Proposal’s assertion that greater concern has been shown in subsequent research for human activity impacts on wolverine simply cannot be aligned with this work.  The total inability to align this work with the Proposal conclusions and its complete omission from the document cannot be overlooked.

The Proposal systemic failure to address research accurately on recreation is again exhibited in the Proposal summary of the work by Mack and Hagan, which appears to be supplementing the work around the  modeling of wolverine habitat  published by Lukacs during the same time frame. The Proposal summarizes the Mack and Hagan work as follows:

“Additionally, new research found an incremental loss of wolverines in portions of central Idaho where winter recreation impacts are increasing (Mack and Hagan 2022, p. 13).”[18]

The immediate failure of the Proposal to support this position with best available science is evidenced by the fact the only citation to a work of Hagan is completely inaccurate in the supporting documentation.  The only authority reference to a work of Hagan in the Proposal  provides this as follows:

“Lyon, L.J., E.S. Telfer, and D.S. Schreiner. 2000. Direct effects of fire and animal responses. Pp. 17–24 (Chapter 3) in Wildland fire in ecosystems: effects of fire on fauna [J.K. Smith (ed.)]. General Technical Report RMRS-GTR-42-Volume 1. U.S. Department of Agriculture, Forest Service, Rocky Mountain Research Station; Ogden, Utah. 83 pp. Mack and Hagan 2022”

The Proposal failure on this summary is immediately evidenced by the fact the cited work never addresses wolverines or recreation but addresses wildfire impacts on species in a chapter addressing fire and fauna.  Candidly this relationship is so completely inaccurately summarized as to state recreation is not even mentioned in this chapter of the general technical report from 2000.  This is a concern.

The Proposals failure is immense and unresolvable on these works as Hagan and Mack have performed wolverine research, which are a series of annual reports from Idaho Fish and Game that continued research of wolverine populations spanning more than a decade historically. We are aware of this relationship as we helped fund the previous research lead by Heinemeyer. These annual reports do not draw conclusions but rather provide raw data on individual wolverine that had been previously tracked after the conclusion of the other larger efforts.  These publications of Hagan and Mack are clearly labeled  as preliminary finding by Idaho Fish and Game as follows:

“Findings in this report are preliminary in nature and not for publication without permission of the Director of the Idaho Department of Fish and Game.”[19]

The immediate conflict of making listing decisions based on a publication that is clearly identified as “preliminary in nature” cannot be overlooked. Again, this is not greater concern.  It is deeply troubling that the conclusions of this research are again inaccurately summarized in the Proposal as the population trends are noted as actually improving in the exceptionally small study area as follows:

“We detected 40% fewer individual wolverines with cameras in 2021 than the peak of 11 wolverines live-trapped and monitored during 2011. However, the number of individual wolverines detected with cameras in 2021 (6–7) was slightly higher than the winter recreation project’s last 2 years (5 individuals).”[20]

If we assume for the sake of argument that the Service properly used results clearly identified  as preliminary for the basis for a listing, again the preliminary results are not even accurately summarized. The conclusions that the wolverine population has been recovering over the last two years entirely within the distinct population segment identified by the Service is never mentioned in the listing.  Rather the Service chooses to inaccurately summarize the work to support problematic research obtained outside the DPS. This is an immense problem for the listing as it may not manipulate their decisions by unreasonably relying on certain sources to the exclusion of others and is disregarding scientifically superior evidence and sources.

The manipulation of research is concerning when viewed  in isolation but this is compounded as scientifically superior works from the same researcher in the same time frame on the wolverine are entirely disregarded. Again, the Proposal has failed on this type of issue as Diane Evans Mack specifically published her conclusions with 16 other leaders on wolverine issues that they were unable to identify any relationship between human activity and wolverines populations based on this work and numerous other works.  This publication is attached as the work of Lukacs et al that is attached to these comments as an exhibit.  Again, this is a failure of the most basic processes associated with the scientific process or requirements to plan based on best available science.

The Organizations are aware that these preliminary reports provide no specific reason for the possible decline in populations and recovery in the analysis area.  While no theory is provided for location fluctuations in this specific population, the landscape level  conclusions of this work addressing research in all areas researched are specifically addressed as follows:

“In summary, we did not confirm with cameras the number of individual wolverines we expected on the PNF portion of our study area. During 2011, the peak year of the winter recreation study, 9 of the 11 wolverines captured were on the PNF. In 2014, 5 wolverines were captured there. In 2021, across the same locations, we could confirm only 4 animals. We did not confirm a male in the territory encompassing Hard Creek, Granite Creek, and Fisher Creek Saddle. We also didn’t confirm a female on the east side of Warren Wagon Road in the Lick Creek or Pearl Creek drainages, where, in 2011, 3 females were live-trapped. We did confirm 1 male in the Lick Creek corridor, although in 2011 there were 2 resident males there. Our results seem to corroborate what Heinemeyer and Squires (2014) described as significant turnover, with known territories potentially vacant. In contrast, wolverine activity on the BNF portion of our study area appeared stable. As occurred during the winter recreation study, we confirmed 2 individuals at Warm Lake Summit, with possibly a third. The Gold Fork camera added an individual wolverine outside of the scope of the winter recreation study.”[21]

Even without the published peer reviewed conclusions of this research published by Lukacs, the immediate conflict between the Proposal conclusion that human development is a threat could not be aligned with the specific reasoning and detailed analysis of this research.  This conflict of conclusions only expands as the Lukacs/Mack conclusions are based on almost a decade of data, that the population of wolverine was stable and possibly expanding.  At no point does this research address levels of human development or support any assertion the population had fallen by 40% in that area. Rather the information provides a significantly different summary of the population trends and fluctuations.  It is the pinnacle of arbitrary decision making for the Service to cut and paste portions out of any work, reinterpret them into conclusions the researcher specifically disagrees with and then use this is as the basis for a decision.

Listings of species on the ESA and general land planning efforts must deal with some level of legal uncertainty almost all the time. Throughout the decades of effort on these issues, it has become clear that the inability to prove a theoretical relationship is not proof of the relationship but proof of the LACK of a relationship between two factors. Even outside land planning and species management, this has been a significant question society has struggled with the great philosopher Voltare stating this conflicted relationship as follows:

“The interest I have to believe a thing is no proof that such a thing exists.”

The conflict presented by  Voltare  is obviously  present in the  wolverine listing  certain interests have concluded recreation must be impacting the wolverine as this position cannot be disproven. Not only has this conflict plagued actual resolution of challenges to wolverines and many other species, this inaccurate relationship has led the Service to fail to satisfy their burden of proof in listing a species and taking management actions. The ESA specifically requires proof of a relationship for management,  which has driven the concept of best available science for research and the legal requirement that best available science  must be used for listing. The current Proposal reverses this burden and is now saying the scientific conflict and inability to establish a relationship between wolverine populations and recreation is the reason for the listing.  Now the burden is shifted to the motorized community to prove there is no relationship to avoid listing.

While the ESA does not provide a specific definition of best available science for the Service, the courts have been very active in resolving this standard. The US Supreme Court has provided the following definition of how best available science is to be applied in the management of public lands:

In so doing, the action agency must “use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). This empirical mandate ensures the law is not “implemented haphazardly, on the basis of speculation or surmise,” and thus “avoid[s] needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.” [22]

The Supreme Court interpretation of best available science is immensely problematic for the listing, given the failure of the Service to accurately summarize almost every work cited or consistently apply previous decisions. Subsequent to the Supreme Court decision,  Courts have provided significant additional guidance on the nature of best available science which they outline as follows:

• “The agencies may not manipulate their decisions by unreasonably relying on certain sources to the exclusion of others.
• The agencies may not disregard scientifically superior evidence.
• Relatively minor flaws in scientific data do not render that information unreliable.
• The agencies must use the best data available, not the best data possible.
• The agencies may not insist on conclusive data in order to make a decision.
• The agencies are not required to conduct independent research to improve the pool of available.
• The agencies thus must rely on even inconclusive or uncertain information if that is the best available at the time of the decision.
• The agencies must manage and consider the data in a transparent administrative process.”[23]

The immediate conflict between the analysis provided in the Proposal and every standard outlined by the Courts cannot be overlooked or overstated. Less than 6 months ago, the Courts again clearly stated worst case scenarios for a species are not the proper basis for decision making as follows:

“In this case, we decide whether, in a biological opinion, the Service must, or even may, when faced with  uncertainty, give the “benefit of the doubt” to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not. The ESA and the implementing regulations call for an empirical judgment about what is “likely.” The Service’s role as an expert is undermined, not furthered, when it distorts that scientific judgment by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.”[24]

It is disappointing to even have to make this assertion but the listing is clearly a worst-case scenario for the wolverine, that violates almost every criterion that Courts have developed to identify and apply best available science.  The foundational conflict between the conclusions that are asserted in the Proposal and the conclusions of globally recognized species managers research cannot be overstated.

3(a)(2)  Congressionally designated areas have significantly expanded since 2013 but this in not addressed in the Proposal.

Throughout the Proposal there is a theory that dispersed, and most particularly motorized recreation is a threat to the species.  The service recently has identified that 41% of Wolverine habitat is in designated Wilderness or subject to other prohibitions on motorized access, which is outlined as follows:

“For example, generally wolverines will benefit from wilderness area protections (calculated as 18 percent of the extent of wolverine occurrence and 41 percent of core wolverine habitats in the western United States (Service 2018, p.103));….. Several large National Parks contain core habitat for wolverines, including Yellowstone, Grand Teton, Glacier, North Cascades, and Mount Rainer National Parks. These areas are largely protected from development, although they may be impacted by winter recreation to varying degrees.”[25]

This situation immediately begs the question of how could there be a significant fluctuation in Wolverine populations with these levels of prohibitions already in place. The failures in analysis of the Proposal on the relationship of congressional protections and what is thought to be the primary threat to the species only compounds when Roadless Area designations are included in the calculations. Once the combined percentages of Roadless and Wilderness areas is addressed on   USFS lands, the areas prohibited or restricted approaches almost 60% of the USFS lands. This creates an immense factual problem for the Proposal.

The designation of Wilderness since 2013 provides significant conflicts with any assertion the Proposal is applying new research or has been accurately updated. Even a brief review of this issue would have identified that more than a million acres of Wilderness have been added to the National Wilderness system since 2013.  As an example of these designations would include:

1. The 113th Congress added five new areas and over 279,00 acres to the system in two enacted bills;
2. The 114^th Congress which designated three new wilderness areas in Idaho;[26]
3. The 116th Congress passed one law, designating a total of 1.3 million acres in four states; [27] and
4. Dingell Act designated more than 263,000 acres of wilderness in 2019. [28]

The Organizations are simply unable to identify any discussion of how much of these areas were in occupied or unoccupied habitat for the wolverine, or even that any of these designations occurred.  This is despite the repeated assertion that the Proposal has been updated to address changes since the 2013 Proposal. Clearly the expansion of existing protections on millions of acres of possible wolverine habitat should have been addressed as existing protections are a statutorily required analysis for any listing.   We simply are unable to envision any interpretation of an update that would not address these changes in existing protections for habitat as this is statutorily required under the ESA criteria. This greatly undermines both the assertions that the 2013 Proposal has been accurately updated and that the Proposal is legally sufficient to list the wolverine.

3(b) Peer review of listing raises many foundational questions from global leaders in wolverine research but none are addressed.

The Organizations would be remiss if the utterly terrible nature of the peer review of the Proposal was not addressed in our comments.  The Organizations are intimately familiar with several of the peer reviewers as we have worked on numerous projects that they are involved in leading or a researcher on.  Sometimes we have disagreed with these researchers on resolutions to concerns but after significant engagement with these reviewers, we have found them to be exceptionally well versed on wolverine and lynx management issues.

We have found high levels of alignment in the fact that each of us was working towards developing a robust sustainable population of the species.   This alignment of purpose is not found in the listing. The  situation is highly frustrating and highly insightful to the mentality of the listing as the peer review raises real questions about foundational positions that are being taken, but none are even addressed.  This makes us think the peer review was merely done to check a box and move on regardless of any input from the peer review.  This is highly frustrating and a violation of among other specific provisions of the ESA, more generalized data requirements such as the information and data quality act of 2001, which specifically provides as follows:

“SEC. 515. (a) IN GENERAL.—The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies  or ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act.”[29]

The USFWS guidance specifying the peer review process for their listing efforts identifies the issues and requirements as follows:

“The FWS definition of objectivity includes whether the disseminated information is presented accurately, clearly, and completely, and in an unbiased manner…. Transparency about research design and methods is pivotal to reproducibility. With regard to analytical results, we will generally require sufficient transparency about data and methods that a qualified member of the public could undertake an independent reanalysis. These transparency standards apply to our analysis of data from a single study as well as to analyses that combine information from multiple studies. However, the objectivity standard does not override other compelling interests such as privacy, trade secrets, intellectual property, and other confidentiality protections.”[30]

US Fish and Wildlife memo outlines the significant value in performing a peer review of research supporting a decision as follows:

“For instance, it might be possible to subject critical portions of the scientific materials to review, in advance of a decision. A major advantage of early review is the opportunity to take early corrective action. Most early drafts can be substantially improved through early informal reviews by internal or external experts. Improvements based on these early “friendly” reviews will lead to better products (e.g. study design, sampling method) and more useful comments during more formal peer reviews such as those mentioned above. Soliciting informal reviews by subject matter experts is a good idea (e.g., better products, broadening your scope of professional contacts) even if formal peer review is not applicable.”[31]

Clearly, the process outlined above is contingent upon some type of integration of this information into the final decision-making process. After reviewing the 9 pages of highly specific peer review of the draft Proposal and the final Proposal, we are unable to identify a single location where peer review was incorporated, despite these efforts being highly detailed and specific and generally scathing in nature. We will note several comments that are problematic to foundational positions taken in the listing starting with the assertion in comment #12 from Robert Inman that he is not aware of the most important paper in the listing foundation as follows:

“I had not seen the 2022 Barrueto paper before. This is a somewhat startling finding, a 40% decline in density over 10 years and in an area with significant protected (National Park) areas. The finding is stark enough to make me wonder if it passes the common‐sense test ‐ How can it be possible that a relatively protected population declined by that much, This is a stark enough decline that something new must have been going on in the area to cause it. What is new? Did trapping activity increase dramatically in the 10 year period? Unlikely that climate effects occurred.”[32]

This should have been a red flag for the Proposal as one of the global leaders in wolverine research was not aware of one of the publications that is foundational to the listing.  This makes us think that prior to the listing this work was not well received or groundbreaking new research.  The Organizations would ask the same questions on these provisions and we are unable to identify any revision of this provision to address what is a foundational concern in the listing. Robert Inman continues his peer review in comment # 23  as follows:

“Roads are at lower elevations and snow is greater at higher elevations. What if roads were the driver? If you take roads out, which the researchers did and the SSAA mentions, if you take roads out and then test for something inversely correlated with roads, what do you find ‐ that the thing that was inversely correlated is now “correlated”. Is that rigorous science?”[33]

Again, when a peer reviewer questions the rigor of the scientific process in the listing and its supporting documentation it should have been a red flag. This red flag was simply never addressed.  Robert Inman concerns continue in comment #42 on the relationship between roads and wolverine impacts as follows:

“In our Yellowstone study, we documented numerous road crossings. We did not publish a paper on it but chapter 7 of our 2007 cumulative report has info on >100 road crossings.”[34]

Peer reviewer concerns on foundational issues with the Proposal are not limited to just Robert Inman. John Squires expresses serious concerns in comment 38 about the asserted impacts of roads and recreation on wolverine populations as follows:

“I don’t have science to back this statement, but I find it hard to believe that wolverines are avoiding forest roads during winter in Montana. During winter in central Montana, we observe wolverine tracking crossing roads almost every day across multiple study areas as we trap lynx, including groomed roads with heavy snowmobile traffic.”[35]

Peer Reviewer John Squires concerns about human development and wolverine populations continue in comment 41 where he states as follows:

“The one animal that was documented dispersing from Wyoming to the southern Rockies in Colorado crossed multiple highways, including 4‐lane. If you are stress the road/semi barrier issue you should mention the one dispersal to Southern Rockies that was documented, did cross highways.”[36]

While the peer review process is somewhat discretionary in how it is responded to, 9 pages of highly detailed and specific comments about the Proposal warrants some type of response. This systemic failure simply must be addressed and corrected.  While we can support and fully understand disagreement of researchers on specific details or technical aspects of any work, as this is part of the basic scientific process, this level of conflict and disagreement is outside the norms of the scientific process and is evidence of significant underlying problems with the proposition being forwarded.

3(c) It is horribly predecisional to move a previous listing forward with significant alterations in factors involved in the basis for listing without analysis of these changes.

The Organizations are very concerned that the entire process was horribly and completely  Predecisional in its application. As the Organizations have  previously addressed, any assertion that the changes are simply based on new research is problematic factually and legally.  While the Proposal asserts to move the 2013 decision forward and update the science, the Proposal is something very different as the current proposal seeks to alter basic decisions such as the scope of the distinct population segment without updating the validity of that decision for 2023.  The Proposal further seeks to move possible threats to the species from uses that were of such low risk as to be specifically addressed for protection in the 2013 listing and moves portions of them to primary threats to the species.

3(c) It is predecisional to adopt a 2013 listing based on a lack of legal protections in Canada without addressing significantly expanded legal protection of Canadian wolverine since 2013.

The predecisional nature of the Proposal is again evidenced by the fact that the 2013 listing proposal was based on the limited or lower protections available for wolverine in Canada. The 2013 listing continued to apply ESA criteria to the declining populations in Canada, as exemplified in the following quote:

“Causes of these changes are uncertain, but may be related to increased harvest, habitat modification, or climate change.”[37]

The continued applicability of concerns such as this must be recognized in the Proposal as major change in listing status of wolverine in Canada in 2018.[38] While this is uniformly recognized as a major change in Canadian management of the species it is never addressed in the Proposed listing despite this change being highly relevant to possible impacts to population sizes of wolverine in the research area of the Barrueto.  The myriad of factors that are addressed in the Canadian listing are FAR beyond the scope of the proposed US listing as most wolverines are in the artic circle region of Canada and that population is doing well.  The Canadian management of wolverine also must address many tribal issues in the management of the species, which may negatively impact the species.  This again warrants discussion in the Proposal given the significance of this difference to the 2013 listing.  This again has not occurred.

The predecisional nature of the Proposal as presented is significant and evidenced by the conflict in the Proposal in the treatment of Canadian regulations of the wolverine in the Proposal. If the Proposal was viewed in isolation, one could conclude that there has not been any changes in Canadian management efforts for the species.   This is simply inaccurate as the Canadian Committee for the status of endangered wildlife in Canada significantly revised their regulations in 2018. The recovery plan for the Eastern Canadian wolverines was completed in 2016.[39] Clearly these are major regulatory changes that should be addressed in any management plan given the significant of this distinction in planning for US wolverine management.

The 2013 USFWS listing found the international boundary significant in the listing concluded as follows:

“In our 12-month finding for the North American wolverine DPS (75 FR 78030) we conducted a complete analysis of the discreteness of the wolverine DPS that we incorporate here by reference. In that analysis we concluded that the   international boundary between Canada and the United States currently leads to division of the control of exploitation and conservation status of the wolverine. This division is significant because it allows for potential extirpation of the species within the contiguous United States through loss of small populations and lack of demographic and genetic connectivity of the two populations. This difference in conservation status is likely to become more significant in light of threats discussed in the five factors analyzed below…… Existing regulatory mechanisms are inadequate to ensure the continued existence of wolverines in the contiguous United States in the face of these threats. Therefore, it is our determination that the difference in conservation status between the two populations is significant in light of section 4(a)(1)(D) of the Act, because existing regulatory mechanisms appear sufficient to maintain the robust conservation status of the Canadian population, while existing regulatory mechanisms in the contiguous United States are insufficient to protect the wolverine from threats due to its depleted conservation status.”[40]

The myriad of problems presented by application of the 2013 USFWS position in 2023 cannot be overlooked as many of the conclusions reached in 2013 were factually problematic. Aligning the 2013 decisions with subsequent changes in management would be difficult.   We do not contest its possible validity for Canadian management responses but this relationship is not a US decision as wolverine are listed as a species of Special Concern in Canada and separately listed for ESA purposes in the United States. Canadian efforts have also included the release of a recovery plan for the eastern populations of wolverine in Canada and   heightening of regulations in 2018 with another round of management changes for the western Canada wolverine. Wolverines  are also threatened in Ontario under the Ontario Endangered Species Act in  2007 which has also conducted on-going management efforts.

The need to address changes in Canadian management decisions made in response to possible population declines is exemplified by the conclusions of the Barrueto research, which was levels of trapping of wolverine in the area were simply too high to be sustainable.  It is important to note that wolverine trapping has not been permitted in the US for decades. Clearly additional restrictions on trapping in the US would have been unwarranted as US regulations prohibit trapping and only allow for incidental take permission for trapping of other species. Clearly the Service was pressured to do something to protect wolverine, which only drove the two management models further into conflict with each other.  The relationship between the US listing and Canadian management plans issued after the previous listing is the immediate conflict between management concerns in the two efforts. Canadian management plans entirely fail to recognize dispersed recreation as a management issue, rather focusing on factors such as timber and mining as priority threats.[41] This immediately begs the question of why was this overlooked?  The only rational conclusion is the possible impacts to wolverine from recreation are so minuscule as to be disregarded in the plan. If alignment of these regulations is the goal of this effort, alignment of management responses must be addressed as well. We simply cannot accept what is identified as a primary threat in the US is largely unregulated in Canada for the same species. But we must question any relationship to the US management situation, which has not changed.  The predecisional nature of the Proposal on this fact is furthered by the decision of the Canadian government that dispersed recreation is of such low threat to the species as to not even warrant analysis.

4(a) There is a staggering lack of information on the species including basic population estimates and agreement on population trends in the Proposal.

The arbitrary nature of the Proposal is again evidenced by the wide range of population estimates that have been involved in the management of wolverines.  The wide range of estimates regarding the population of wolverines in the lower 48 states result in problematic application of population estimates and asserted declines in Canada. This is concerning as establishing some type of baseline of existing population is necessary before any assertion of a possible decline in the population could be made. The immense ambiguity of population estimates in the contiguous 48 states is concerning as this range is outlined as follows:

“The precise size of the wolverine populations in the contiguous United States are currently unknown but may be small due in part to their large territories and the limited amount of available habitat in the contiguous United States. Estimates based on extrapolations of densities and suitable habitat suggest there could have been approximately 318 wolverines (95 percent CI = 249–926) in the contiguous

United States more than a decade ago (Inman et al. 2013, p. 282). The best available estimates of effective population size of wolverines in the contiguous  U.S. portions of the Northern Rocky Mountains and North Cascades are likely fewer than 50 combined (Schwartz et al. 2009, p.3226).”[42]

Again, this assertion of the Proposal is problematic as most states are not providing population estimates for wolverines in their boundaries. The lone state providing populations estimates is the state of Idaho, which provides a summary that is in direct conflict with an assertion of population collapse, is as follows:

“Wolverines naturally occur in low densities across their global range. Current western U.S. population estimates range from 250 to 318 individuals, reflecting the estimated population prior to European settlement. These levels suggest that wolverines have reclaimed large expanses of their historical range in the contiguous U.S. after historical lows or local extirpations in the early 1900s. This pattern is evident in Idaho, where wolverines have been reported in 34 of 44 (77%) counties and presently occur in most, if not all, historically occupied habitat in Idaho. This resurgence is likely attributed to the important refugia provided by Idaho’s large wilderness areas and the wolverine’s status as a state-protected species since 1965. The wolverine is recognized as an Idaho Species of Greatest Conservation Need in the Idaho State Wildlife Action Plan based on low rangewide populations and lack of state population trend information.”[43]

The immediate and complete conflict of this research with the conclusions in the Proposal cannot be overstated. Similar more generalized sentiments were displayed by the State of Washington on the stability of the wolverine population in the Cascades, as Washington Fish and Game concluded in 2020 as follows:

“The occupancy estimate of 43% for the survey area in Washington indicates that nearly half of the suitable habitat available in Washington was used by wolverines during the survey. Given the substantial amount of suitable habitat in the Washington Cascades, this finding suggests that the wolverine population is sufficiently large and widely distributed to be unlikely to suffer extirpation in the immediate future. Give the limitations of our data, we cannot provide reliable projections for population persistence over longer time periods.”[44]

While Washington does not provide specific population numbers, this information would indicate their conclusions are an upward trend for populations in the State. Again, this is far from the collapse that the Service is asserting as occurred.  Similar positive trends for wolverine populations were provided by the State of Wyoming which clearly stated their findings in 2020 as follows:

“The survey, planned to be repeated at five year intervals confirmed the broad distribution of wolverines across the region and documented population recovery above their historic lows. For the first time ever, wolverines were detected in the Gros Ventre Mountains and the southern Wind River Range.”[45]

Again, this is far from the collapse of populations of wolverine that the Service is asserting is occurring. In 2022 Montana Fish, Wildlife and Parks Department provided the following conclusion on populations of wolverine in Montana as follows:

“Wolverines were detected in the same number of cells during each study, although there was a slight shift in detections from Montana to Idaho. The significance of these spatial differences in detections will be discussed in the manuscript that is currently being drafted by Lukacs et al. Wolverines continue to be detected throughout the extent of their known range and have also been recently detected in areas previously thought to be outside of their normal distribution. ”[46]

This published peer reviewed position falls well short of the collapse in populations that the Service is asserting based on research entirely outside the DPS. The direct conflict of the Service conclusions with all state information regarding the wolverine causes us significant concern that the Proposal has only selectively applied new research. Research noted in conclusion is more than 15 years old making any assertion of new information for the listing impossible to defend. This is a problem that must be resolved if any assertion of new research being the basis for applying the 2013 listing is to be found factually accurate.

4(b) Factual uncertainty of wolverine with changes in Canada regulations.

The Organizations are aware that there are questions about the status of the wolverine populations in Canada generally. Canadian wolverine in the far north of Canada appears to be highly sustainable, despite the unregulated operation of dispersed motor vehicles and their unrestricted trapping.   The Canadian government and Alberta provincial governments  are both looking at revising regulations for wolverine trapping as over trapping appears to be the basis for decline.   As the Organizations have noted throughout, we are very concerned that the entire Proposal is horribly predecisional. The Service has chosen to blindly move ahead with listing rather than waiting to see what the Canadian response is in terms of trapping regulations and the benefits of addressing the primary threat to the species.  This simply makes no sense as US regulations will never solve a Canadian issue.

The challenge that is again presented by the predecisional making in the Proposal is the fact that if we accept the 2013 listing and its conclusion that southern 48 United States was a DPS based on the different regulatory processes and standards for the species, we must question if Canadian regulations are heightened is the 2013 conclusion on the DPW still even valid.   Again, these are foundational questions that must be resolved.

The predecisional nature of the decision to not address Canadain government responses to wolverine population changes also allows managers to avoid other foundational questions.  Another question that the decision to simply move the 2013 listing forward is the fact that the  2022 Barrueto research is addressing wolverine population in an area outside the area researched by Aubry in 2008.   Again, we are unable to align these decisions and research efforts as they are not even addressing populations of wolverine in generally the same areas. This is simply nowhere near best available science but is simply an attempt to create a worst case scenario for the species to support the preordained decision of the listing, mainly that the species would be listed and motorized recreation was the primary threat.

5. Significant new research and management documentation have found that snow compaction is a natural process.

The relationship of dispersed winter recreation and wildlife has been the topic of some of the most theoretical and speculative analysis in the listing of species possible. Again, this is a theory that we continue to be told has never been researched, despite the fact it has been researched extensively.  The failure of the Proposal to accurately reflect threats to the wolverine is further evidenced by additional research that has been published and concludes that snow compaction at the landscape level is a natural process. This research again found the presence or lack of snow as the single largest factor impacting wolverines based on three years of site-specific tracking of a large number of animals. [47]  At no point are factors such as recreation or human activity even mentioned in this research.  Even more troubling is this research is again not mentioned in the Proposal.

These conclusions are buttressed by the fact that 41% of wolverine habitat in the lower 48 is in Congressionally designated Wilderness or National Parks, where the large-scale use of what is asserted to be a primary threat simply does not occur.  This research calls into direct question any assertion that  human activity can possibly compact snow to such a level as to impact the species. This type of a concern has been woven throughout the discussion of possible concerns around human recreational activity in all forms compacting snow and providing a competitive advantage to other species.

The snow compaction concern has been present with wolverine questions since original proposals and research on the species started.  This research coincided with concerns about lynx being possibly impacted by snow compaction, which was highlighted in the astonishingly speculative and theoretical 201Lynx Conservation Assessment and Strategy. In the decade following this document, sufficient research was performed to allow the  2013 LCAS for the southern Rockies to remove snow compaction as a threat to the lynx.   The most recent update for the lynx has completely removed dispersed recreation and snow compaction as threats to the Lynx.  The Organizations must question how two species that were at one point almost identical in research and management concerns could have taken such hugely different courses in management decisions over the same period of time. This Glass research is not addressed in the Proposal before it concludes that recreation is a threat despite researcher’s conclusions on compaction not even being addressed in either document.

6. The Organizations support the Proposal determination that critical habitat for wolverine cannot be determined.

While the Organizations have serious concerns with the basis of the Proposal, we do support the decision to not designate critical habitat for the species at this time.  While the Organizations support this determination, we would be remiss if we did not recognize that the conflict between lacking information to designate critical habitat and asserting there is sufficient research to identify recreation as a primary threat is immense. The Proposal outlines the decision not to identify critical habitat as follows:

“Therefore, due to the current lack of data sufficient to perform required analyses, we conclude that the designation of critical habitat for the DPS is not determinable at this time in accordance with 50 CFR 424.12(a)(2)(i). The Act allows the Service an additional year to publish a critical habitat designation that is not determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).”[48]

The Organizations are intimately familiar with the significant economic impacts that could result to western communities as a result of critical habitat designations for the wolverine.  We have specifically not addressed issues such as economic analysis and other information to be addressed in a critical habitat designation based on the specific identification that this designation was not happening. Public comment must be provided on this issue and designation of critical habitat without this public comment is entirely inappropriate.

While we support the decision that critical habitat cannot be designated at this time, we are concerned that numerous other factors must be addressed in the designation of critical habitat for any species. Given the huge amount of uncertainty around threats to the wolverine issues such as what is necessary for the survival of the species.  The recent Weyerhaeuser Supreme Court decision provides a standard that would be problematic on this issue which is outlined as follows:

“Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.”[49]

Given the high level of mobility that has been well documented by the species, the Organizations must question how habitat for the species could be identified. Additional determinations must made regarding if the best interests of the species was furthered by such designation under the ESA. This is clearly identified as follows:

“The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.”[50]

None of these other factors are addressed in the Proposal and must be specifically addressed  as determinations on critical habitat issues have been made in previous listings.  Again, the Organizations vigorously support the decision not to identify critical habitat for the species at this time, even though we object to the decision to list the species based on the 2013 decision and the fails in the science addendum update.

7. Conclusion.

Our opposition to the Proposal is not a position we take lightly or without thought as the motorized community has been supporting wolverine and related species research for several decades. Our support has included direct funding of research and donations of equipment for researchers. When those researchers have run into trouble in the backcountry while performing their research, we have been the members of the public that recovered broken equipment, stuck riders and provided other indirect support for the researchers. This research partnership has spanned almost a decade with the hope of identifying the relationship between wolverine populations and recreation in all forms. Given the relationship  we have had with globally recognized leaders in research of wolverine challenges, we are intimately aware of the lack of relationship between wolverine populations at the landscape level and dispersed motorized recreation as this has been the basis of extensive candid discussions.

We are disappointed the Proposal twists what has historically been a good partnership working towards solutions for the species and several other species into an overly political and highly charged discussion again.  Rather than recognizing the decades of research that has failed to establish a relationship between wolverine populations and dispersed recreation , the Proposal simply asserts that research has never been undertaken. This position could not be further from the truth but rather directly evidences one of the most glaring failures of the Proposal.  Inconclusive research is simply not the basis for listing but is rather an indication that the relationship being researched does not exist.  In direct contrast to the efforts we have undertaken to support research, where we have worked hard with researchers to clearly identify challenges or conclusions to benefit the species. The Proposal often entirely misquotes conclusions of works, ignores other research entirely, applies legal standards in a completely inconsistent manner to create what can only be summarized as a worst-case scenario for the wolverine in order to support a possible listing.  This is frustrating and disappointing to us as we have decades of effort supporting high quality research to try and resolve these questions and results in a listing decision that is largely indefensible on the merits.

Our opposition to the Proposal is based on both the poor level of analysis provided on the wolverine as this will not benefit the wolverine.  Our opposition is also based on the horrible precedent that it is setting as an ESA listing should not be based on an inability to establish a relationship after years of research.  ESA listings must identify actual significant threats to the species and address those challenges. Arbitrarily elevating political concerns outside the species will never protect the species  or remove it from listing.  A listing decision must be based on best available science and not the arbitrary creation of a fact pattern that is now being made to support previously made decisions.  We are concerned that the result of this effort will be an immense amount of conflict in any planning effort that will generate no benefit for the species.

While we are opposed to the listing based on the lack of credible science, the decision not to designate critical habitat is supported as there is no change in population trends and many researchers have determined that populations are increasing.  Until arguably accurate population counts can be created, and far more accurate information can be identified regarding the life cycles of the species, there is no reason to designate critical habitat.

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

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

Chad Hixon
Executive Director
Trail Preservation Alliance

Marcus Trusty
President
CORE

Sandra Mitchell
Executive Director, IRC
Authorized Representative, ISSA

[1] As an example Heinemeyer et al;   WOLVERINE – WINTER RECREATION RESEARCH PROJECT: INVESTIGATING THE INTERACTIONS BETWEEN WOLVERINES AND WINTER RECREATION  2013 PROGRESS REPORT NOVEMBER 16, 2013 at pg. ii

[2] See, L.E. Olson et al. Modeling large-scale winter recreation terrain selection with implications for recreation management and wildlife/ Applied Geography 86 (2017) 66e91Pg 71

[3] See, Wolfson, David W., Peter E. Schlichting, Raoul K. Boughton, Ryan S. Miller, Kurt C. VerCauteren, and Jesse S. Lewis. 2023. “Comparison of Daily Activity Patterns across Seasons Using GPS Telemetry and Camera Trap Data for a Widespread Mammal.” Ecosphere 14(12): e4728. https://doi.org/10.1002/ecs2.4728

[4] See, Proposal at 83760

[5] See, Colorado Parks & Wildlife – Wolverine (state.co.us) Accessed 1/10/24

[6] A copy of Bill has not been released at the time of submission.  Release of this legislation is expected in the next week and the Organizations reserve the right to attach this legislation as Exhibit 1 to these comments.

[7] Please see Western Governors Association Report on the effectiveness of highway management efforts on protecting wildlife and CPW research on the effectiveness of wildlife overpasses and area management efforts which are attached as Exhibit 2.

[8] See, Jung, Thomas S., Michael J. L. Peers, Ryan Drummond, and Shawn D. Taylor. 2023. “Dining with a Glutton: An Intraguild Interaction between Scavenging Wolverine (Gulo gulo) and Lynx (Lynxcanadensis).” Ecosphere 14(10): e4491. https://doi.org/10.1002/ecs2.4491

[9] A selection of meeting minutes and other documents are attached as Exhibit 3.  Lists of specific attendees are available but not included in these comments as these comments are public record and the list of attendees included personal contact information for numerous attendees.  We did not believe it was appropriate to make such information public without making provisions to protect this personal information.

[10] See, DOI; USFWS; Endangered and Threatened Wildlife and Plants; Threatened Status for the Distinct Population Segment of the North American Wolverine Occurring in the Contiguous United States; Establishment of a Nonessential Experimental Population of the North American Wolverine in Colorado, Wyoming, and New Mexico; Proposed Rules;  Vol. 78, No. 23 / Monday, February 4, 2013 at pg. 7878.

[11] See, DOI; USFWS 2018 Wolverine science update at pg. 61. (Hereinafter referred to as the “2018 Wolverine science update”)

[12] See, 2018 Wolverine Science update at pg. 61.

[13] FAQ page U.S. Fish and Wildlife Service announces final rule to list North American wolverine as threatened in contiguous United States (fws.gov) accessed 1/11/24

[14] See, Defenders of Wildlife v Jewell; Decision DISTRICT COURT MONTANA CV 14-246-M-DLC; April 2016 pg. 72.

[15] See, Proposal at pg. 83729

[16] See, Heinemeyer, K., J. Squires, M. Hebblewhite, J. J. O’Keefe, J. D. Holbrook, and J. Copeland. 2019. Wolverines in winter: indirect habitat loss and functional responses to backcountry recreation. Ecosphere 10(2):e02611. 10.1002/ecs2. 2611 at pg. 13.

[17] Lukacs, Wolverine Occupancy, Spatial Distribution, and Monitoring Design, The Journal of Wildlife Management  84(5):841–851; 2020; DOI: 10.1002/jwmg.21856 . A complete copy of this publication is attached to these comments as Exhibit 5.

[18] See, Proposal at pg. 83729

[19] See, Idaho Dept of Fish and Game; Wolverine Persistence in an Idaho Core Population Area;  Prepared By Diane Evans Mack and Eric Hagan  February 2022 at pg. 2. A complete copy of this publication is attached as Exhibit 4. (Hereinafter referred to as the 2022 Idaho Wolverine Report)

[20] See, 2022 Idaho Wolverine report at pg. 8.

[21] See, 2022 Idaho wolverine report at pg. 10

[22] See, Bennett v. Spear, 520 U.S. 154 at 169 (1997).

[23] See, Center for Biological Diversity v. Norton, 2002 WL 1733618, at 8 (Dist of DC 2002)

[24] See, Maine Lobstermen’s Association v. National Marine Fisheries Service, No. 22-5238 (D.C. Cir. 2023) June 16, 2023

[25] See, Listing Proposal at pg.  83759

[26] Public Law. 114-46

[27] Public Law 115-334 & Public Law 115-430

[28] Public Law 116-9

[29] See, §515 Public Law 106-554

[30] See, DOI; US Fish and Wildlife Service; U.S. Fish and Wildlife Service Information Quality Guidelines and Peer Review memo (revised June 2012 ) pg. 6. A complete copy of this memo is available here U.S. Fish and Wildlife Service Information Quality Guidelines and Peer Review (fws.gov)  (Hereinafter referred to as the “USFWS peer review memo” for purposes of these comments)

[31] See, USFWS peer review memo at pg. 12

[32] See, USFWS peer review memo at pg. 2.

[33] See, USFWS peer review memo at pg. 3

[34] See, USFWS peer review memo at pg. 4

[35] See, USFWS peer review memo at pg. 4

[36] See, USFWS peer review memo at pg. 4

[37] See, 2013 Listing Proposal at pg. 7869.

[38] http://www.canada.ca/en/environment-%0Aclimate-change/services/species-risk-public-registry/%0Aorders/amend-schedule-1-volume-152-number-12-june-2018.%0Ahtml

[39] A complete copy of the 2016 recovery plan for eastern wolverines is available here: Wolverine (Gulo gulo) (publications.gc.ca)

[40] See, 2013 Listing proposal at pg. 7873

[41] For additional information on Canadian Wolverine management efforts please see Wolverines (wcscanada.org)

[42] See, 2023 Listing Proposal at pg. 83761

[43] Idaho Fish and Game 2014 report at pg. v.

[44] State of Washington: Western States Wolverine Conservation Project: results of the Washington Wolverine Survey, Winter 2016-2017; February 2020 at Pg 15.

[45] See; Wyoming Fish and Game; Wyoming wolverine management plan; July 2020 at pg. i.

[46] See,  Montana Fish, Game and Parks;  Wolverine Survey Summary Report:  2016‒2017 and 2021‒2022;  June 2023 at pg. 8.

[47] See, Glass et al Spatiotemporally variable snow properties drive habitat use of an Arctic mesopredator; Oecologia (2021) 195:887–899; https://doi.org/10.1007/s00442-021-04890-2.  A complete copy of this research is attached as Exhibit 6.

[48] See, 2023 Listing Proposal at pg. 83771

[49] See, Weyerhaeuser v. USFWS; 586 US ___ (2018) at pg. 9

[50] 16 USC 1533(b)(2)

Dept of Interior
Director- BLM (HQ-630)
Room 5646
1849 C Street NW
Washington DC 20240

RE: Proposed Temporary closures and restriction orders, RIN: 1004-AE89

Dear Sirs:

Please accept this correspondence as the comments of the above Organizations in vigorous opposition to the proposed expansion of authority to issue temporary closures and restriction orders on lands managed by the BLM (“The Proposal”). The Proposal spans a mere five pages of the Federal Register providing a wealth of random unsupported assertions combining wildly disparate situations to support creating new management authority under the guise of streamlining authority managers have had for decades. The Proposal then addresses unusual concerns around existing authority is be applied, such as asserting there are significant appeals of emergency closures currently. This is problematic for many reasons. We simply are not aware of any appeals of closures during the course of the active emergency.  We are aware of numerous closure orders being challenged when the order is in place years after the emergency has ended or when emergency conditions were never present. These are different issues and should never be lumped into a single concern or issue.

While the Proposal asserts to be streamlining existing authority, the Proposal attempts to provide new basis for closures, based on undefined concepts such as “implementation of management responsibilities” for unspecified periods of time. No discussion of what these terms mean or how these changes could be applied under existing regulations is provided at all. The open-ended nature of the Proposal creates the possibility that emergency closures could span decades by allowing closure orders to exist until Resource Management Plans can be updated despite the basis being far from an emergency.

In isolation, this is deeply concerning as much of this information is inaccurate, proposed changes are not highlighted for the public to understand and comment meaningfully on. The Proposal is highly frustrating to existing partners as it appears to be merely another step in the opening of BLM to large scale leasing of federal public lands to Natural Asset Companies without public engagement in any phase of this discussion.  The Proposal is clearly seeking to allow emergency closure orders to be issued in circumstances where there is little proximate and significant risk to the public simply to avoid NEPA analysis of leasing efforts. It is highly frustrating the Proposal seeks to apply provisions created for effective and efficient manager response to true on the ground emergencies in a manner that was never intended when this authority was created. We believe this effort will ultimately be unsuccessful and could actually result in significant negative impacts to resources. The use of emergency response provisions in this manner will create significant erosion of support for these provisions and expand distrust of the public in any action the agency takes.

1(a) Who we are.

Prior to addressing the specific input of the Organizations on the Proposal, we believe a brief summary of each Organization is needed.  The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization representing the OHV community seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport. CORE is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. The Idaho State Snowmobile Association (“ISSA”)is an organization dedicated to preserving, protecting, and promoting snowmobiling in the great state of Idaho. Our members may come from every corner of the state, but they all share one thing in common: their love for snowmobiling. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands most of which has occurred on BLM lands. Over 750 individuals have contributed money or volunteered time to the organization. Nevada Off Road Association (NVORA) is a non-profit Corporation created for and by offroad riders. NVORA was formed to specifically fill the void between the government managers and the rest of us who actively recreate in the Silver State. NVORA does this by maintaining a consistent, durable, and respected relationship with all stakeholders while facilitating a cooperative environment amongst our community. Collectively, TPA, NORA, CSA, CORE, IRC, RwR, ISSA, and COHVCO will be referred to as “The Organizations” for purposes of these comments.

Nationally, the OHV community provides between $200-$300 million dollars into public lands management every year as a result of their voluntarily created OHV/OSV registration programs. As an example, the California OHV grant program provided $85 million in grants last year, and over the life of the program has funded more than $750 million in direct funding to public land managers.^[1] The benefits of the California OHV program are outlined as follows:

* Through our USFS partners, over 18,000 miles and 269,000 acres are available for OHV Recreation.

* Through our BLM partners, over 18,000 miles and 478,000 of acres are made available for OHV Recreation.

As another example, Colorado’s voluntary registration programs put almost $9m annually in grants back on public lands, and over the life of this program this has now provided more than $100m in funding for public lands to maintain and protect all forms of resources.^[2]  This Program funds more than 60 maintenance crews throughout the state in addition to equipping and often training them to.  Clearly efforts at the scale of these voluntarily created programs warrant inclusion in the discussion of possible closures for emergency response and conservation efforts as our involvement has addressed many emergency situations and restoration efforts following an emergency.  Most states that BLM owns lands in have similar programs that provide similarly high levels of funding but these programs extend well beyond just federal public lands and many states have OHV/OSV programs but have little to no federal public lands.

The failure to recognize partnerships like this and its benefits for recreation and conservation  have resulted in erroneous and damaging statements in the Proposal.  This recognition of the benefits of multiple use restoration efforts through partners  in protecting the future of multiple uses in the area could have been highly valuable. As an example, the Colorado OHV program has contributed more than $1m over the last several years to repair the impacts of the East Troublesome fire which impacted more than 190k acres largely on BLM’s Kremmling FO and Arapahoe/Roosevelt NF.  Initial efforts targeted restoring basic access to the area to allow restoration efforts to even start and we anticipate planting many seedlings and monitoring the area to conclude these efforts.[3]  This is a type of project that commonly occurs within our OHV/OSV programs.  These are the type of projects we would be concerned about slowing down if there misplaced concerns around emergencies.  Why would a partnership such as this not be highlighted and targeted for future planning efforts?

The efforts of the motorized community extend well beyond landscape level efforts and often are targeting much smaller scale areas on an on-going basis through permits. Many of our local volunteer clubs work with land managers have executed “adopt a trail” or “adopt a road” type agreement for large portions of routes in planning areas.  These clubs often partner with managers on very small acre projects and efforts to address impacts of illegal shooting or dumping in areas with clean up days. Often these events are the basis of a temporary closure order from the BLM Office to allow for this effort to take place and these efforts have been highly effective in mitigating impacts of illegal activities.  Why would this need to be changed?

The Organizations and our members obtain hundreds of permits every year from BLM to hold events of all sizes.  These include many of the larger races such as King of the Hammers or Best in the Desert races noted in the Proposal but also include many tiny events where exclusive possession of public lands is not sought and in some situations events may not come into contact with BLM managed lands. These small events may include poker runs, educational events, site cleanups and many other efforts.  Our experiences have been diverse but we are not aware of any permitted events where there have been claims that the BLM lacked authority to timely close the area if the event posed a possible risk to public safety or resources. We are concerned that poor public engagement or expanded closure authority could be used as a tool to stop permitted events by those that may have opposed the event in the NEPA process.

1(b) The Proposals failure to analyze existing partnerships will result in damage to those relationships.

In our experiences, the assertions the Proposal is seeking to avoid delay in emergency public lands closures, which are based on situations that are unforeseen and a direct imminent risk to public safety or resources simply lack factual basis.  The Proposal asserts delays could result from possible appeals of temporary closure orders under processes put in place to protect due process and public engagement of interests that might be impacted by closures.  This simply has not been our experience. The Organizations are aware of objections and challenges to overly broad closure orders that persist for years following an emergency response but this is a different situation than is raised in the Proposal.   We are unable to understand how permitted events could be seen as a similar management situation to emergency response.

BLM has a huge number of provisions that allow for temporary closures and restrictions of public lands for a variety of reasons.  Understanding the nuisances of these existing authorities and response tools is critical to an effort to reform or streamline any management authority.  BLM consistently uses these authorities to respond to proximate and unforeseen risks to public safety or resources, which the issuance of closures in response to wildfires or floods. Avoiding impacts to the existing authority to issue this type of Order and the issue specific remedies that are provided for subsequent to the issuance of the emergency order would seem to warrant some type of discussion in the Proposal. These factors range from true emergency closures during the event to restoration efforts  that may be occurring in an area post event.  Rather than discussing the relationship of existing emergency provisions, the Proposal would appear to consolidate all permitted events and emergency management actions into a single category for the issuance of closure orders.  This consolidation of authority could create barriers for management rather than resolve them as requirements for meeting various statutory requirements for funding responses are not addressed.

The preservation of due process and public engagement of interests that may be impacted by any closures is critical to protecting multiple uses. The Proposal, when taken in conjunction with the recently released BLM Conservation Strategy, only increases our concerns for the protection of due process and public engagement for any interest that may be impacted in this process. This new Conservation Strategy created the concept of a conservation lease that could be issued in response to the climate emergency.  Assuming for the sake of these comments, there is a climate emergency the challenges sought to be addressed in the Conservation Strategy are neither unforeseen, or when compared to a fire or flood, or pose  the immediate and proximate risk to public safety or resources to warrant an expedited closure processes without public engagement.  While the Conservation Strategy addresses threats less proximate and unforeseen than a traditional emergency, the Proposal seems to allow a similar response from managers. When  the Proposal is taken in concert with the Conservation Strategy, it appears the ending management situation would allow for closures of public lands by the leaseholder but fails to address how these closures would be vetted for NEPA compliance and other regulatory requirements. The current Proposal only expands this concern around due process and public engagement as the Proposal seeks to provide almost open-ended authority for managers to close areas until RMPs can be revised to address an issue.  The Organizations are unable to understand how an emergency risk could be tied to an artificial deadline of a revision of a planning document that maybe decades away would not be hugely problematic to implement on the ground.

Each of these  existing models of management responses  are the result of the highly variable nature of the proximity and foreseeability of each risk to the public or resources.  The proximity of risk to the public or resources and foreseeability of the risk are factors that must be balanced in any regulatory structure responding to this issue with due process protections and public engagement. The Organizations are supportive of greater transparency in public lands management and public access to public lands for  a variety of reasons.  The Organizations vigorously assert the Proposal fails to strike the proper balance in protecting due process and public engagement in public lands management and moves towards closure orders being issued for management concerns that have not been  subjected to NEPA or emergency closures being issued for issues that are neither unforeseen or a direct imminent risk to public safety or resources.

2(a)(1). Existing statutes and regulations allow the IBLA and the BLM Director to issue immediately applicable emergency closure orders.

Currently, BLM managers have wide ranging authority to issue temporary closure orders for public lands, including permitted events and emergency responses. The Organizations are not aware of concerns around the use of this authority when it is narrowly tailored and responding to a serious and direct threat to public safety or resources.  However, land managers must balance a variety of concerns in making these decisions.  The rational use of these closure authorities has created significant trust between managers and local communities when these communities face an emergency. Goodwill between managers and the public is immediate when BLM managers use their authority to protect public safety or resources by issuing closures in response to local conditions such as fires, floods and other unforeseen significant risks to that community. Closure orders are also issued for events and there is often support from the communities  who feel engaged in the decision making for events and often are the direct recipients of the economic benefits of the events. The management goodwill from existing efforts will be negatively impacted if the Proposal is implemented, as there is no balance of competing interests even addressed and risks are simply not a direct or imminent risk to public safety or resources due to a localized condition.

Unlike existing regulations, the Proposal fails to balance between emergency closure authority and legally required due process and statutorily required public engagement in public lands management decision making.  This will massively erode public support for emergency response and other needed management actions. The Proposal is entirely unsuccessful in providing any credible basis to alter the current regulatory mechanisms addressing these issues.  Rather than addressing changes in a meaningful manner, the Proposal chooses to make random inaccurate assertions on various issues, including existing closure authority. The failure of the Proposal to address authority in a coordinated and thoughtful manner will create conflicts with communities as some will be forced to bear more burden of closures than others, who are facing a similar risk. Questions about why public land was closed in certain areas and not others to address a threat that is entirely unrelated to the public lands will not lead to anything but creating division between communities and managers.

The failure of the Proposal  to accurately reflect current authority is immediate as it asserts managers  lack of authority to issue immediately effective emergency closures.  As an example, the Proposal makes numerous references to public safety or resources being the basis for the request for expanded closure authority such as the following:

“However, aspects of 43 CFR 8364.1— such as the requirement to publish temporary closure and restriction orders in the Federal Register and the absence of a provision authorizing the BLM to issue temporary closure and restriction orders with immediate full force and effect—can hinder the BLM’s ability to respond effectively to exigencies that arise on public lands. Streamlining and modernizing the manner in which the BLM notifies the public about temporary closure and restriction orders, as well as providing authorized officers with the ability to issue such orders with immediate effectiveness, would allow the BLM to better perform its mission to responsibly manage public lands and protect public safety.”[4]

The conflict with this assertion and existing regulatory authority is immediate and immense as existing BLM regulations provide broad authority for emergency closures in a wide range of situations.[5] It has been our experience that emergency closure orders in relation to active fires are an overwhelming reason for the issuance of closure orders. We are not aware of any challenges being presented around the timely issuance of closure orders as part of an active fire response.  The lack of legal challenges is evidence of the overwhelming support the public has for these efforts.  The existing regulations specifically allow emergency closure authority in fire response efforts as follows:

“§9212.2 Fire prevention orders.  (a) To prevent wildfire or facilitate its suppression, an authorized officer may issue fire prevention orders that close entry to, or restrict uses of, designated public lands.

(b) Each fire prevention order shall:

(1) Identify the public lands, roads, trails or waterways that are closed to entry or restricted as to use;

(2) Specify the time during which the closure or restriction shall apply;

(3) Identify those persons who, without a written permit, are exempt from the closure or restrictions;

(4) Be posted in the local Bureau of Land Management office having jurisdiction over the lands to which the order applies; and

(5) Be posted at places near the closed or restricted area where it can be readily seen.”[6]

Contrary to the assertions in the Proposal that BLM managers lack authority to issue closure orders that are immediately effective, the above provisions provide broad authority for closures in response to an emergency that is unforeseen and which presents an imminent and direct threat to public safety or resources. We are unable to identify any emergency closure order issued for active fire response that has been appealed.  If this is a concern it should have been raised in the Proposal and addressed with greater detail.  While we are aware of challenges to closure orders being in place extended periods of time after the proximate and direct risk to public safety or resources has passed, this is a different management concern and outside the scope of what the Proposal is seeking to achieve.

The inaccuracy of the Proposal summary of this management situation  expands as existing BLM regulations allow for expedited appeal process to review emergency closures and many other decisions at the BLM Director’s discretion. Current BLM regulations specifically provide this expedited authority as follows:

Ҥ 4.21 General provisions.

(a) Effect of decision pending appeal. Except as otherwise provided by law or other pertinent regulation:

(1) A decision will not be effective during the time in which a person adversely affected may file a notice of appeal; when the public interest requires, however, the Director or an Appeals Board may provide that a decision, or any part of a decision, shall be in full force and effective immediately;”[7]

The Organizations simply cannot envision a situation where an emergency closure for an issue that was truly unforeseen and a risk to the public or resources, such as a fire or flood, would not be subject to the use of the public interest exception provided. If this situation is actually arising, the remedy should be educating line officers on their ability to issue orders such as this and providing a clearly defined guidance document for local managers to understand the Director concerns about making a decision in this manner. The remedy simply is not new regulations. The Organizations are concerned that this waiver provision is not mentioned in the Proposal, and this creates the possibility the Proposal is seeking to address issues outside those discussed in the register notice.  The Organizations are not able to envision a situation where there is an actual emergency threatening the publics health safety and welfare or resources, where such a finding would be difficult to issue.   These Orders simply are not challenged or appealed to the best of our knowledge. If this type of an appeal is common, the Proposal should have provided this information and has not.

Our concerns around the basis and direction of the Proposal expand when the exceptions  for closure orders specifically addressed in the Proposal are reviewed. These concerns are unusual to say the least.  An example of the unusual nature of these concerns would be exemplified in the Proposal provisions such as the following:

“The proposed rule clarifies that specific groups can also be exempt from closure or restriction orders, such as Tribal members that may need to access an otherwise closed area for traditional or cultural uses.[8]“

While the Organizations vigorously support the right of any member of the public to access public lands, the Organizations are finding it difficult to understand why this provision would be included in the Proposal if true emergency closures were the management concern. We find it difficult to identify a cultural resource that would allow public access to an area that was subject to closure for a fire or flood response effort. Again, if this was a management concern of some scale, the Proposal should have addressed the scale and scope of this issue.

The questionable basis of the Proposal around closure orders increases as many existing regulations provide a far more broad authority to managers to allow access into restricted areas for fire response than is provided by the above provisions.  BLM fire closure regulations again are used as an example of managers authority to provide limited public access as these regulations provide broad authority on this issue as follows:

Ҥ9212.3 Permits. (a) Permits may be issued to enter and use public lands designated in fire prevention orders when the authorized officer determines that the permitted activities will not conflict with the purpose of the order.

(b) Each permit shall specify:

(1) The public lands, roads, trails or waterways where entry or use is permitted;

(2) The person(s) to whom the permit applies;

(3) Activities that are permitted in the closed area;

(4) Fire prevention requirements with which the permittee shall comply; and

(5) An expiration date.

(c) An authorized officer may cancel a permit at any time.”[9]

This authority is commonly used to allow those impacted by fire and flood to gain access to areas to understand the scope and scale of impacts to them at the first opportunity the area is arguably safe for them to access the area. Could this authority be used to provide access to tribal members to access a cultural site? That answer is of course. We would be opposed to any assertion this authority has been used in a discriminatory manner or in a manner not recognizing cultural concerns.

Given the immensely broad existing authority to provide for site and issue specific flexibility in the administration of closure orders, the Organizations must question why cultural and tribal issues might be a concern.  The Proposal again fails to identify what significant concern is there for emergency closures and possible impacts to  cultural and tribal needs?  As a result, the new provisions provide less authority for managers to address access issues during a true emergency as there can be an innumerable number of issues that could be addressed in an emergency outside cultural and tribal access. Clearly the provision is not here to protect tribal access to lands that are closed due to an emergency such as a fire or flood.

The Organizations are also aware that many tribal and cultural sites are sensitive in nature and release of information on the sites are often legally protected. The relationship of these protections and the new provisions should be a concern, as the use of this provision to allow access would entail the need to provide additional legal basis for the order being issued.  This is a hurdle to the effective management of emergency responses as current authority is broad in nature and managers would have no trouble outlining an order that allowed access to tribal members without raising concerns about confidential information on sites and other resources. Again, these types of concerns also make us question why emergency response and permitted issues were thought to be the proper basis for the scope of the Proposal.  Cultural and tribal access in areas closed for permitted events should have been addressed in the NEPA process, and concerns like this should not be allowed to intervene after the NEPA process has closed as this would create an immense burden on the permit holder and possibly create public safety issues or resource impacts for the permit. Rather than streamlining the issuance of orders provisions such as this will only make the process more complicated.

2(a)(2). Existing CEQ regulations allow alternative arrangements for NEPA compliance in emergency response situations.

Existing BLM regulations further allow for a streamlined and expedited NEPA compliance process for emergency response, which further avoids the concerns about a possible delay in response by managers in emergency situations.  Given these broad and encompassing provisions for emergency response, the Organizations are not able to understand a benefit from including permitted events in the scope of the Proposal.  This is another example where the Proposal is complicating rather than streamlining any response, as these provisions that are currently reasonably clear.  This streamlined authority is outlined in BLM NEPA handbook as follows:

“2.3 EMERGENCY ACTIONS In the event of an emergency situation, immediately take any action necessary to prevent or reduce risk to public health or safety, property, or important resources (516 DM 5). Thereafter, other than those actions that can be categorically excluded, the decision-maker must contact the BLM Washington Office, Division of Planning and Science Policy (WO-210) to outline subsequent actions. The CEQ regulations (40 CFR 1506.11) provide that in an emergency “alternative arrangements” may be established to comply with NEPA. Alternative arrangements do not waive the requirement to comply with NEPA, but establish an alternative means for compliance.

The CEQ regulations for alternative arrangements for dealing with such emergencies are limited to the actions necessary to control the immediate effects of the emergency. Other portions of the action, follow-up actions, and related or connected actions remain subject to normal NEPA requirements, so you must complete appropriate NEPA analysis before these actions may be taken (40 CFR 1506.11).

The “alternative arrangements” take the place of an EIS and only apply to Federal actions with significant environmental impacts (see section 7.3, Significance). If the proposed action does not have significant environmental effects, then the alternative arrangements at 40 CFR 1506.11 do not apply.

If you anticipate the proposed emergency response activity will have significant environmental effects, we recommend that you assess whether an existing NEPA analysis has been prepared (e.g., implementing preexisting plans) or whether there is an applicable exemption. For example, certain Federal Emergency Management Agency (FEMA) response actions are exempt from the NEPA (see the NEPA Handbook Web Guide).

Given the large amount of flexibility already provided for in existing regulations, the Organizations find any assertion of possible delay in the ability of managers to respond to emergencies difficult to support or understand. If there are concerns, the Proposal should have addressed them.  The large amount of latitude in emergency response currently provided also causes the Organizations concern as this clarity is based on emergency management concerns and not the closures that are related to permitted events that have gone through NEPA.  These are separate issues and should be dealt with separately even if they are both addressing possible concerns for public safety or resources.

2(a)(3) Existing regulations provide for identification of starting and ending times of emergency closure orders.

The systemic failure of the Proposal to accurately address existing closure powers and existing minimum requirements for issuance of an order using this authority is again displayed in the Proposal provisions addressing the specificity of timing requirements in the issuance of closure orders. Existing provisions are largely aligned on the need to specify the start and end date of any emergency or closure order.  These provisions are simply not addressed in the Proposal, which asserts the declaration of closure times is a benefit of the Proposal. This alleged benefit is outlined in the Proposal as follows:

“require that all orders specify the date and time that a temporary closure or restriction becomes effective and terminates;”[10]

As previously noted in these comments, 43 CFR §19212.3 specifically mandates process needed to issue closure and restriction orders. These regulations have specific provisions requiring the timing of the applicability of these restrictions for a beginning and end date.  Again, we are unable to align these existing highly specific regulations  addressing the need for specific dates to start and stop area closures with an assertion that the Proposal will expand the clarity in the scope of closure dates as identified.

2(a)(4) Emergency provisions provide significant short and long term emergency response declarations

Accurately addressing the basis and specific requirements for the issuance of closure orders can greatly impact the long-term recovery path for an area after the direct threat of an emergency has passed.  Many of the recovery resources that are available are unique and are somewhat tailored to the issue being responded to. As an example, existing regulations allow managers are allowed to hire staff for activities during an event, which authority is specifically provided as follows:

“Where in his judgment sufficient search, rescue, and protection forces are not otherwise available, the Secretary is authorized in cases of emergency to incur such expenses as may be necessary (a) in searching for and rescuing, or in cooperating in the search for and rescue of, persons lost on the public lands, (b) in protecting or rescuing, or in cooperating in the protection and rescue of, persons or animals endangered by an act of God, and (c) in transporting deceased persons or persons seriously ill or injured to the nearest place where interested parties or local authorities are located.”[11]

The ability to make emergency hires is further supplemented by the ability to address salaries in emergency situations, which is outlined in statute as follows:

“Employment and compensation of personnel to perform work occasioned by emergencies. Notwithstanding any other provision of law, persons may be employed or otherwise contracted with by the Secretary of the Interior to perform work occasioned by emergencies such as fire, flood, storm, or any other unavoidable cause and may be compensated at regular rates of pay without regard to Sundays, Federal holidays, and the regular workweek.”[12]

The expanded management authority provided for administrators  in response to an emergency situation continues in many instances well beyond active emergency response.  Congress has provided numerous issue specific funding streams for longer term response to challenges such as the FLAME act, which addressed funding for administrators to remediate areas impacted by fire after the direct impacts had passed. [13]Given the complexity of these management models, the Organizations must ask why analysis of possible impacts to these issue specific resources and funding streams from the Proposal is not addressed in the Proposal.  This would be a major concern if streamlining emergency and permit response was the issue to be addressed. This lack of information makes us think a streamlined response is not what the Proposal is seeking.

2(b). The Proposal should not be used as a substitute for NEPA compliance for permits or planning.

The Organizations vigorously assert that any streamlined or revised  authority to issue closure or access restriction should not be used as a replacement for the full NEPA process. The Organizations have concerns around  the relationship of existing NEPA regulations and requirements to the implementation of the entire Proposal.  Throughout the Proposal there are numerous references to compliance with NEPA being allowed. These are without weight if emergency provisions of NEPA are used for the compliance with NEPA for management decisions that are not a direct and significant threat to public safety or resources.  While there may be projects that could be performed with a categorical exclusion or using a streamlined NEPA process, such as those provided in the Healthy Forest Restoration Act, there are also projects that will be undertaken that will need an EA or EIS to undertake.

As noted in other portions of these comments, NEPA provides significant flexibility for managers to comply with its requirements as part of an emergency response effort. These short term answers should not be seen as a  manner to avoid addressing long term underlying problems with areas impacted by any issue.  An example of this concern is the fact that in many areas BLM resource management plans are simply horribly out of date. Given the unusual nature of the Proposal the Organizations are concerned that this new closure authority could be seen as a stop gap or method to avoid public engagement in RMP revisions.

3(a)(1). The Proposal seeks authority well outside permitted activities and emergency response.

While the Proposal asserts to be addressing emergency situations and permits,  often times the direction of the Proposal strays far from these issues and directly addresses the incorporation of emergency closures as part of a basic management model. The Proposal seeks to provide hugely broad authority on many instances and appears to be an attempt to simply avoid undertaking NEPA analysis and/or public engagement in a timely manner.

As we have outlined previously in these comments, many of our Organizations engage on a large amount of site specific remediation efforts, such as trash pickups or cleaning illegal shooting ranges making the need for both long and short term response to issues important to our concerns. These short term responses are done with a desire to address issues and impacts that managers are unwilling or unable to manage.  Long term resolution of these types of problems require NEPA analysis, coordinated responses from other government agencies, partners and wide public engagement.  If an illegal shooting area is closed, part of the decision process must include educating the public where legal shooting opportunities are provided.  Only this type of integrated management response will address issues and protect resources.

This desire to avoid NEPA by merely closing areas for reasons that remain unclear, is reflected as follows in the Proposal as follows:

“Under the proposed rule, the BLM would continue to establish closures and use restrictions after other management strategies and alternatives have been explored, including, but not limited to, increased law enforcement, cooperative efforts with local governments, engineering, education, and outreach.”[14]

We have to question how the above fact pattern could ever be involved in emergency response or closures for permitted activities. Many times responses such as those above are only provided with partners, meaning public engagement and good communication are necessary to truly resolve issues.  Clearly the above situation is addressing something that has occurred for years, which begs the question of why would a long-term closure be thought to be advantageous rather than pursing NEPA in a timely manner. This is why we are very concerned about the implementation of management responsibilities being used as  the basis for closures.

Not only is this management model going to erode good will for effective management responses it will put resources at risk as it could be much easier for manager to simply close an area and ignore the problem rather than undertake the NEPA necessary to resolve the issue.  Using an emergency closure in this manner would also appear to immediately violate NEPA requirements which are outlined as follows in the Code of Federal Regulations:

“§ 1508.25 Scope.  Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. The scope of an individual statement may depend on its relationships to other statements (§§ 1502.20 and 1508.28). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:

(i) Automatically trigger other actions which may require environmental impact statements.

(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.

(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.

(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.”[15]

The Organizations cannot envision where the fact pattern provided in the Proposal could be used in any other manner than to avoid timely NEPA analysis and public engagement on issues. This situation would be a per se violation of NEPA regulations and would represent a management direction that should be avoided moving forward rather than one that was highlighted. Rather than implementing a management responsibility, the provision is creating a management authority that simply does not exist.  Provisions such as this give us great concern regarding both possible due process concerns for permittees and public engagement requirements of numerous statutes being avoided.  The Organizations submit this concern can only be resolved with additional protections being added to the Proposal to avoid authority being used in this manner.

3(a)(2)  Multiple uses under new mandate must be protected from impacts from implementation of management responsibilities that is not defined.

The Proposal seeks to create an entirely new basis for the issuance of emergency closures and access restrictions, which the Proposal calls “the implementation of management responsibilities.” The Organizations are very concerned that the Proposal makes no reference to protecting multiple use mandates with the new “implementation of management responsibilities” authority provided for closures.  In direct contradiction to protecting existing legal obligations the Proposal  lays out situations where this new authority could be used to avoid legal obligations. The systemic avoidance of existing legal obligations is exemplified by the failure to define the term  “implementation of management responsibilities” in the Proposal.

Definitions of foundational terms such as this will be critical to implementation of the Proposal as there is no generally accepted definition for this term.  The need to define this foundational element of the Proposal is exemplified by the fact  that all existing definitions arguably related to the concept proposed appear to be related to human resources management. While the position of implementation manager may be somewhat defined in the employment field any of these job descriptions are highly industry sector driven and unrelated to the concept being proposed. The failure to define what could and could not be a management responsibility that would be implemented makes any substantive voicing of concerns around the application of the concept impossible. The hugely open ended nature of this concept is concerning as it could be used to close an area for endangered species issues or the construction of a massive wind or solar farm or a new open pit mine. None of these efforts will benefit recreation.  However this term is finally defined and applied, this definition must protect multiple uses, due process and public engagement of all interests relative to the implementation of responsibilities being undertaken. Implementation of management responsibilities should not be used to create management authority not provided for already or avoid full NEPA compliance.

The failure to define a foundational term such as the “implementation of management responsibilities” creates significant concerns as the concept that is being proposed is wide ranging at best.  The concept of implementing management responsibilities is very broad in nature and triggers concepts far in excess of the BLM merely hiring a contractor to perform services for them.  Courts reviewing these provisions have held that schemes  avoiding NEPA are invalid holding that:

“BLM may take steps to “maintain” plans under 43 C.F.R. § 1610.5-4, which permits maintenance as necessary to reflect minor changes in data. Such maintenance is limited to further refining or documenting a previously approved decision incorporated in the plan. Maintenance shall not result in expansion in the scope of resource uses or restrictions, or change the terms, conditions, and decisions of the approved plan. Maintenance is not considered a plan amendment and shall not require the formal public involvement and interagency coordination process described under §§ 1610.2 and 1610.3 of this title or the preparation of an environmental assessment or environmental impact statement. Maintenance shall be documented in plans and supporting records. 43 C.F.R. § 1610.5-4.”[16]

The Organizations are concerned that without a clearly defined scope of actions that could be taken within this new authority to implement management responsibilities, management will be undertaken without NEPA or public engagement. This will do nothing more than erode public trust in the management decisions, result in decisions that are not sustainable in the long run and immense amounts of litigation. In order to avoid these issue the definition must clearly resolve questions such as the following: What is the scope of limitations on this ability to designate this authority? Is it an emergency based authority? Is it a resource management plan, that could be decades out of date? Is it some other statutory authority, such as the endangered species act?

3(a)(3). The concept of “temporary” must be clearly defined in the Proposal.

The Organizations are VERY concerned that the window of time that the Proposal appear to be addressing and operating under are never addressed and appears to be highly flexible in challenges it seeks to address.  There is a significant difference between a temporary closure of any area for an afternoon long event and a large scale closure that might last many years.  Clearly identifying an expected life span of a management decision is critical to the success of the management decision.  This type of concern is frequently see in existing emergency response efforts. Often large closure areas are acceptable and advised in fire response when fires are not easily located or responses are being developed.  Often management efforts expand, closure areas adapt to expanding information.  Once fires are extinguished, closures of areas not impacted are often lifted. Even areas impacted are quickly reopened. Closures spanning many years after events and responses have ceased are opposed by the public.

Rather than addressing the need to tailor closures and management responses to the minimum amount needed to achieve management goals and needs the Proposal is open ended on a concern such as this. An example of this would be how the concept of “temporary” is discussed in the Proposal:

“the term ”temporary” should be understood in relation to the underlying condition for which the BLM determines that a closure or restriction is warranted; it would not impose any specific time limitations on a closure or restriction order issued under § 8364.1. Instead, a temporary closure or restriction order would generally remain in effect until the situation it is addressing has ended or abated, it expires by its own terms, or the BLM issues a superseding decision, which can include incorporating the terms of a closure or restriction order into a resource management plan in accordance with the regulations at 43 CFR part 1600.”[17]

The Organizations must express their immediate and complete opposition to any closure that would  remain open until any RMP was revised, as we are able to identify numerous BLM RMP that were completed in the late 1970s and early 1980s and have never been updated.  The possibility that a temporary closure could span more than 45 years is simply unacceptable in every way.  This would be a violation of numerous planning and NEPA requirements that have been addressed previously in these comments.

The conflict of this assertion with numerous internal provisions of the Proposal must be recognized and addressed.  The Organizations  must note that the Proposal asserts a benefit of providing the requirement of identifying starting and stopping dates for any order. As previously noted, this provision already exists. Additionally, identification of a start and end date for closure orders would imply this is based on an identifiable time on a calendar and not an unspecified point in the future when a management decision might occur. These types of open ended scope of temporary closures would also support our concerns regarding due process and public engagement in decision making in this process. While the Proposal generally asserts to be simply streamlining protection of the public for permits and emergencies, these provisions cause us to believe that a much larger review of the BLM planning process is sought to be undertaken.

3(b)(1).  The definition of an emergency should not be altered to allow political goals to be achieved without public engagement.

The relationship of the Proposal’s expanded closure and access restriction authority to other management initiatives is not addressed or analyzed despite a clear relationship between the Proposal and at least one other effort. Clearly identified boundaries of what the Proposal considers and emergency and what would not be an emergency or permitted event  would be  very helpful and again is not provided. One of the strengths of the emergency concept and authority to close lands for permitted events is a proximate threat to the public safety or resources that is unforeseen or for management of the event to avoid public safety or resource concerns.  As noted in the previous sections, the authority for this type of management action is scattered across numerous statutory provisions. Most do not have a definition of emergency as  these provisions are simply applying the commonly understood definition of terms and this has led to significant goodwill being developed in permitted and emergency closure situations.

While the Proposal does not specifically address a change in the definition of emergency, many of the provisions seem to open that discussion without addressing it directly. This is a concern that must be clarified in the comments as we are applying the generally understood definition of emergency in our comments, which  Merriam Webster defines an emergency as follows:

“1: an unforeseen combination of circumstances or the resulting state that calls for immediate action
2: an urgent need for assistance or relief”[18]

The Organizations would be vigorously opposed to any effort that resulted in the commonly understood definition  being applied more loosely or to further a management goal that has been determined without serious public engagement and NEPA review. Too often concepts such as emergencies or crisis or other terms evoking the possibility of catastrophic implications to public safety or resources are used to gain attention to issues. This does not mean these are emergencies as often these issues are entirely foreseeable and are not presenting an urgent risk to public safety or resources.

3(b)(2) A clear definition of an emergency is needed to maintain  programmatic boundaries between management efforts.

The need for a clear definition of emergency is needed to avoid overlap and possible conflict between various management efforts and programs. When there is a perception that a statutorily mandated management effort is not responding fast enough for certain political interests, assertions of the need for  emergency responses from other those interests are often made.  One interests dissatisfaction with the pace of any management effort should never create an emergency for other interests or managers. It has been our experience that frequently this type of artificial emergency type concern is expressed to local managers and the open ended expansion of these managers ability to declare emergencies and provide management responses will only catapult the use of this tactic. The challenges to local managers will be immediate as they are already horribly short staffed and unable to provide basic services in many situations.  Adding more issues for them to immediately address will only exponentially compound this shortfall rather than resolve it as decisions will not be well researched or understood.  The problems this will create in the long term will be immense.

Not only could  this open-ended emergency authority compound existing management problems, it could create entirely new problems and conflicts.  The need for a clear definition of emergency to avoid the possibility of expanded legal challenges to artificial emergency type restrictions is exemplified when the relationship of the new open ended emergency authority is linked to pending listings of species on the Endangered Species list, and our concerns expand exponently when listing of plants is addressed.  The myriad of legal complications that arise from the relationship of these two issues is simply overwhelming. The Proposals failure to recognize the possibility of expanding legal challenges in the alleged  attempt to reduce legal challenges to decisions is concerning to say the least. This would be a failure of one of the cornerstone benefits asserted to be coming from the Proposal and that failure to even discuss a concern like this is problematic.

For decades the US Fish and Wildlife Service has been bombarded with emergency petitions to list all kinds of species, and often these emergency listings fail to provide sufficient information to warrant further investigation.  As a result of this course of conduct, the Fish and Wildlife Service has provided extensive guidance on how to prepare a sufficient petition to list any species.[19] These emergency petition listings have spanned a few pages and seek to list dozens of species and are coupled with immense public pressure and artificial urgency to list. Other times these emergency listings are brought in response to opposition to a project that may be slated to enter the NEPA analysis phase of development or if a party has dissatisfaction with the conclusion of a NEPA effort.  Pressure to use this open-ended emergency authority could actually serve as a barrier to the NEPA processes functioning as required if the desire is to preempt or preclude the NEPA or regulatory process in other agencies. This type of ramification is a concern and again it is not discussed in the Proposal.

The possibility of legal challenges arises from the preemptive use of these new emergency powers is immediately present when these new emergency powers are sought to be used to force management decisions for species in areas that may not be habitat at all. We frequently see issues such as this around the management of modeled but unoccupied habitat for a species.  We are intimately familiar with several efforts to address modeled but unoccupied habitat as an emergency RMP revision after failures to designate this as primary habitat with the USFWS have failed.  In several instances the USFWS has provided good reasons why areas were not designated but those are never addressed in the effort to undertake RMP revisions.

This type of conflict between parallel decision making processes could be significant.  This tactic has become more problematic as the legal requirements for determinations for modeled but unoccupied habitat have significantly altered since the US Supreme Court’s unanimous 2018 decision in Weyerhaeuser  which held as follows:

“Only the “habitat” of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.”[20]

Decisions addressing critical habitat or the designation of modeled but unoccupied habitat should remain with the US Fish and Wildlife Service as the average land manager will lack both the resources and expertise to address issues such as this. Often questions such as this are brought to land managers because of the lack of expertise and resources on the issue and are raised with an immense amount of artificial urgency to protect the species and habitat. Land managers can make decisions based on this type of pressure and bad information.  The ability to provide emergency closures in this situation, which would not be legally sufficient will only expand legal challenges and result in resources being moved from actual challenges on the ground to support challenges to these decisions.

3(b)(3) Closure restrictions only compound our concerns regarding impacts of the new BLM  Conservation and Landscape Health Proposal (Docket # 1004-AE-92).

The systemic failure of the Proposal to accurately reflect current management authority, address possible challenges that could flow from proposed changes  and define even basic terms in the Proposal is concerning. This course of conduct leads us to the conclusion that there could be an ulterior motive for the Proposal. The relationship of the Proposal and the new BLM Conservation and Landscape Health Proposal(“CLHP”) which is again paving the way for large scale leasing of public lands through what we assume will be Natural Assets Companies(“NACs”) cannot be overlooked. The relationship of these efforts greatly expands our concerns despite the recent decision of the SEC to withdraw their proposed regulations for the NACs business model.[21] While some have heralded the SEC withdraw of the NACs regulations, this only expands our concerns as whatever the SEC was proposing in terms of requirements would have led to at least some type of oversight and transparency in the operations of NACs. As a result of the SEC withdraw, this business model is entirely unregulated or overseen.

The relationship of the CLHP which appears to provide the ability to create temporary closures to benefit lease holders and this proposal cannot be overlooked.  Regardless of the business model used, this concept remains problematic for our Organizations.  The scattered and uncoordinated manner that land management agencies have chosen to address this concept with only adds to our frustration with this idea. Clearly large scale discussions are occurring on the issue and no one has chosen to engage with existing partners to provide understanding of the NACs concept.  The Conservation Strategy Proposal fails to address impacts of possible closures in any substantive manner with the following provisions:

“The proposed rule would define the term ”casual use” so that, in reference to conservation leases, it would clarify that the existence of a conservation lease would not in and of itself preclude the public from accessing public lands for noncommercial activities such as recreation. Some public lands could be temporarily closed to public access for purposes authorized by conservation leases, such as restoration activities or habitat improvements. However, in general, public lands leased for conservation purposes under the proposed rule would continue to be open to public use.”[22]

The CLHP continues to outline the risks to public lands and sustainability it is seeking to remedy  as follows:

“Increased disturbances such as invasive species, drought, and wildfire, and increased habitat fragmentation are all impacting the health and resilience of public lands and making it more challenging to support multiple use and the sustained yield of renewable resources. Climate change is creating new risks and exacerbating existing vulnerabilities.”[23]

The overlap of these concerns, issues and proposed responses clearly could fall within the scope of this Proposal and support emergency declaration being issued cannot be overlooked. The Organizations have already participated in many collaboratives on a wide range of issues, including grouse, wolverine, wilderness designations and many others where issues and concerns such as those listed above are identified as emergency or crisis issues that has to be addressed. Often these assertions are made with no factual basis to support the assertion and despite the artificial urgency allegedly supporting the management action must be taken to prevent an emergency that was imminent, no calamity has befallen the area or species  when management action proposed is not take.  Our concerns around the possible large scale leasing of public lands to for profit entities with no background in land management are discussed in detail subsequently in these comments.  Providing detailed and meaningful definitions for foundational terms and concepts governing leasing and emergency declarations will be a significant step towards resolving our concerns on this issue.

4(a). The NEPA analysis for the Proposal is entirely lacking.

The growing history of systemic avoidance of NEPA requirements and public engagement from the BLM around planning efforts is deeply concerning as significant revisions to planning efforts have been proposed to be implemented with almost zero public comment or NEPA scrutiny. The Organizations are opposed to the promulgation of the Rules under the Proposal with simply the issuance of a categorical exclusion, as use of a categorical exclusion in this manner is exactly the type of NEPA compliance that must be avoided in the decision making process for public lands.  This BLM decision to adopt the lowest level of NEPA analysis for this large scale and complex effort  is clearly stated in the Proposal as follows:

“The BLM intends to apply the Departmental categorical exclusion at 43 CFR 46.210(i) to comply with NEPA.”[24]

This position is problematic for the Proposal, given the national scope and scale of the rulemaking, large number of partners and significant number of efforts that are clearly occurring concurrently with the Proposal.  This is a conflict with NEPA requirements that large projects receive heightened levels of NEPA analysis.  The Organizations vigorously assert that NEPA analysis of the Proposal must be significantly expanded as proceeding under just a categorical exclusion violates both NEPA and internal guidance documents of the BLM.

Not only is this irregular, it is in conflict with the NEPA compliance for most other major rule makings in the natural resources area. The Organizations experiences with the development of the USFS 2012 planning rule are highly relevant to our concerns about the lack of analysis being undertaken by the BLM.  The USFS sought to coordinate their efforts and undertake a complete EIS of the new rule and its impacts. Rather than consolidate all issues into a single location and coordinated efforts,  BLM has chosen to divide their planning efforts into numerous initiatives, each of which are being treated as a separate unrelated proposal.   The cumulative impact of these numerous isolated efforts must be reviewed and streamlined as most decisions will be made under multiple overlapping standards, making the relationships of these standards to each other critical in developing an effective decision making process.  An efficient effective process will also foster better relationships with partners, as partners will not be forced to attend repetitive meetings or discussions to address similar issues.

Any assertion the Proposal may continue forward with just a Categorical Exclusion and comply with NEPA planning requirements is immediately inconsistent with landscape target of the goals and objectives of the Proposal.  The Organizations believe the inherent conflict of the determination the Proposal may proceed with only a categorical exclusion is immediately apparent when the goals and objectives of the Proposal are compared to existing guidance documents from the BLM on the necessity to prepare an EIS.  This internal BLM guidance documents provide:

“11.8   Major Actions Requiring an EIS.

1. 1. An EIS level analysis should be completed when an action meets either of the two following criteria.

(1)     If the impacts of a proposed action are expected to be significant; or

(2)     In circumstances where a proposed action is directly related to another action(s), and cumulatively the effects of the actions taken together would be significant, even if the effects of the actions taken separately would not be significant,”^[25]

The Organizations submit that the landscape level goal of the Proposal can only be achieved through a significant change in landscape level planning despite the piecemeal and ad hoc method of development for the Proposal.   The lack of factual basis in the BLM position that the Proposal can move forward without an EIS level of analysis is clear when the cumulative impacts of all the separate planning efforts (Renewable Energy, species, recreation) are consolidated. What is being proposed is a landscape change to BLM operations, that in many ways fails to operate within existing statutory authority.

The Organizations also submit that the position of the BLM that only a Categorical Exclusion under NEPA is necessary to undertake a complete review of their planning rule is simply insulting to partners of all types.  It has been the Organizations experience that even small projects or permits, including club rides that occur on existing resources require at least an Environmental Assessment.  Many of the partners are involved in multi-year EA type analysis on a wide range of issues and will be working though the EA process on small projects, like trail reroutes or parking lots,  as BLM planning simply moves forward with a Categorical Exclusion on this landscape effort.  The Organizations submit these differences in NEPA application cannot be overlooked and will do little to foster support or partnership for planning efforts moving forward.

4(b) Meaningful public engagement  must be a priority and has been systemically avoided by the Agency.

Public engagement is a critical step in any land management decision making process that should not be overlooked and Proposal twists this concern into something that is blamed on the appeal process.  Public engagement as proposed would be negatively impacted as permitted events would now be lumped into emergency response.   This lack of clarity would create immense conflict around permitted events and emergency response. Meaningful public engagement will reduce this type of unintended impact. Public engagement is necessary to ensure that if an area is closed that other resources are not being directed towards the closures area.  Even within the recreational community, public engagement will ensure that local resources are not being allocated to the same planning area as the resources of a NAC.  Public engagement will also ensure that management partners are aware of efforts and proper alignment of partner efforts can be achieved. If there is a large project that actually  warrants a closure order the State wildlife managers probably should be aware of the closure to avoid the sale of site-specific hunting permits in the location.  This will only create conflict between partner managers if hunting licenses are sold and then hunters find out their licenses have been rendered valueless as access to hunting areas has been lost because managers did not talk to each other.

4(c) Community engagement strategy for BLM conflicts with the Proposal.

The management process outlined in the Proposal, which is significantly  reducing community engagement and avoiding NEPA requirements thru expanded emergency authority is directly conflicting with assertions from the BLM that they are seeking to engage with local communities. This vision is clearly laid out in the 2023 BLM Recreation Strategy as follows:

“Vision: By increasing and improving collaboration with community service providers, the BLM will help communities produce greater well-being and socioeconomic health and will deliver outstanding recreation experiences to visitors while sustaining the distinctive character of public lands recreation settings.”[26]

Again, the conflict of these two parallel efforts within the BLM creates significant concern for the Organizations.  The immediate conflict of these two efforts cannot be overstated and the distrust between managers and partners will only be expanded as partners will not believe any assertion of the desire to actually engage with them in the future. Actual engagement with communities is not achieved with mere words.

5. The relationship between Natural Asset Companies and existing partners and management decisions warrants meaningful discussions.

The Organizations must express frustrations with the Proposal, and several related proposals that appear to be laying the foundation for the large-scale leasing of federal public lands to for profit entities. Generally, this model appears to be associated with the operation of Natural Asset Companies (NACs).  This assumption is based on the limited information that the NYSE is providing on this issue at the landscape level and generalized SEC filings regarding this business model. Given the SEC filings and the fact the NYSE is restructuring for this effort, the effort is significant and there has been engagement with federal land managers as part of this effort.

It is highly frustrating that despite all the  managers  assertions of increased community engagement, the NACs concept of land management has had no meaningful coordinated engagement from anyone. Our representatives have noticed sudden interest in various BLM public meetings from fund managers, investment groups and others type of businesses that simply are not involved with public lands issues. When casual conversations have been attempted with fund managers on their attendance at the meeting, their answers have been evasive and sometimes confrontational.  When questions at these meetings are directed towards land managers on these interests being present at land management meeting, BLM staff has not been able to provide anything akin to a decent answer and some have merely walked away.   This poor engagement and general  direction of the management model outlined causes concerns for us immediately.  It is disappointing at best as our partnership with BLM managers has spanned decades and resulted in hundreds of millions of dollars in direct funding to BLM efforts. Despite this partnership, managers will simply not engage with any information of conceptual discussion, despite the fact this could be an idea we would support with a little meaningful engagement on basic questions.

This systemic avoidance of public engagement on what is clearly a major effort has created conflict that may be entirely unnecessary as often our concerns are foundational and start with how would our programs and partnerships be addressed in the NACs model of management. Without basic information we are forced to try and build understanding of the concept based on loosely aligned press articles, SEC filings and information on investment organizations webpages. This is a problem and certainly not a foundation of trust between interests that will be needed to achieve successful implementation of this concept.

The first basic concern we have is with the emergency closure proposal and relationship of the NACs operational model relates to the multiple use mandate. Many of the assertions found on the NYSE page outlining what NACs business model seeks to achieve is immediately problematic for the multiple use mandate. Per the NYSE webpage, a NAC is created to address the following goals and challenges: [27]

“To address the large and complex challenges of climate change and the transition to a more sustainable economy, NYSE and Intrinsic Exchange Group (IEG) are pioneering a new class of listed company based on nature and the benefits that nature provides (termed ecosystem services). NACs will capture the intrinsic and productive value of nature and provide a store of value based on the vital assets that underpin our entire economy and make life on earth possible. Examples of natural assets that could benefit from the NAC structure include natural landscapes such as forests, wetlands and coral reefs, as well as working lands such as farms.”

The summary of the NAC efforts on New York Stock Exchange website continues as follows:

“Intrinsic Exchange Group (IEG) is introducing a new type of company whose equity captures the value of natural assets and the ecosystem services they produce. Natural Asset Companies (NACs) are fundamentally different than traditional companies because they are chartered to protect, restore, and grow the natural assets under their management to foster healthy ecosystems.”

The Organizations are aware that the Securities and Exchange Commission has proposed general outlines for the administration of a NAC type business.  This Proposal may have been the largest and most coordinated effort to outline what a NAC is intended to achieve and how those goals would be achieved and how these goals would relate to other business activities.  As part of this effort, significant opposition to the concept was received by the SEC from what can only be summarized as a diverse range of interests.  As a result of this opposition, the SEC announced the withdrawal of their proposal.[28] While the SEC has withdrawn their proposed regulations for NACs, we believe the NACs effort will continue without the approval of the SEC.   Given the scale of these efforts, we don’t see this change being brief or not impacting federal lands

As we have noted, the BLM is working on several proposals that would be huge steps towards implementing a NACs model of management  and BLM engagement can only be summarized as bad.  Many of these BLM Proposals would grant broad new authority to implement management responsibilities in numerous ways from executing leases to authorizing closures. All of this is being done under the guise of streamlining authority for the benefit of recreation.  This is a conclusion we must disagree with. From the motorized recreational perspective, all this model of management does is allow DOI to declare a climate emergency, or ESA emergency or similar remote threat to public safety or resources and then turn over management to third parties that have clearly stated they have no interest in multiple use. These are for profit entities that BLM simply does not have the staff to begin to oversee or manage.  The complete lack of alignment with the goals of the NACs model causes concern for how a recreation project in any form could comply with what NYSE is stating as the goal for these businesses.

As we have noted previously, land manager engagement on these multiple coordinated planning efforts has been poor.  We have many basic questions around leasing of public lands, and would reassert our position that with some guidance and education of our interests the NACs model might be a management model that existing partners could support. We are again asking these questions in the hope of creating some type of meaningful dialog on this effort.  Some preliminary questions on this issue would include:

1. 1. What is the relationship of a NACs effort to the multiple use mandate and more specifically existing multiple use recreational decisions?  Multiple use concepts simply  do not seem to be the priority at all when you have the NYSE stating the mission is to increase capture of natural value and improve environmental, social and corporate governance  (“ESG”) scores for corporations. Candidly recreation is just not reflected in any businesses ESG scores and elevating corporate profitability to this level of use of public lands will be immensely problematic.
   2.  If there are discussions about the creation of a conservation credit program for partners, we would like to participate. The motorized community has been a partners with Federal land managers for decades.  Our efforts certainly could be the basis of conservation credits. Our concerns, outside protection of multiple uses and avoiding closures, initially would include:
      1. Does conservation include just wildlife or water and soil or air efforts as well?  We are aware that the US Fish and Wildlife Service has a conservation credit program in place already that works on private lands. What is the relationship between these efforts?
      2. How is the process of issuing credits going to be allocated?  It would appear that the decision has already been made that leasing is the mechanism for allocation of credits.  This model to allocation does not work for motorized efforts as a lease implies exclusive possession of the area by the leaseholder. Balancing multiple uses and conservation would be far more achievable if the relationship was based on permit rather than a lease as most permit holder do not have exclusive possession of the area subject to the permit.  Additionally leasing would result in another layer of paperwork to work through for our efforts and a lease like this for recreation would be completely uninsurable from our perspective.
      3. The credit allocation process needs to reflect all partners.  Just in the recreation world, we must believe that state wildlife agencies would want credits for their work. State Wildlife agencies work is foundational to any sustainability effort as they count animals and provide boots on the ground.  Legally most wildlife is under the primary jurisdiction of the state even on federal lands. If we are protecting a species, exact counts of population have always been provided by state wildlife agencies. These NACs credits could reduce the cost burden on the hunting and fishing community for licenses and equipment purchases.  This would be hugely beneficial to these partners as well.
      4. How would the programmatic nature of many efforts, such as state wildlife agencies and OHV/OSV registration programs be reflected and balanced with the project by project nature inherent in a lease?  Allocating credits based on projects might be a stop gap for some projects, like a site specific clean up but much of our effort is programmatic in nature.  Programmatically based credits probably should go back to the state for grant funded projects as most states prohibit grant recipients from profiting from the grants.  Clearly leases don’t align with this type of situation and individual partners will be poorly suited to sell conservation credits. Also the sale of credits will be easier and more efficient if the credits are bundled into groups for sale rather than being sold one by one.
      5. We are assuming that any leases or similar efforts would be subject to public bidding and other requirements like most government contracts? The ramifications of this question are significant in isolation.
      6. How will basic equity, payment of front end costs in developing leases and multiple uses be addressed in management of leases?  Clearly these leases will need archeological surveys, §7 consultations and community engagement before they are ever put out for public bid. IE if an area is leased to a third party but the crews the OHV program funds remain working in the area and many others how would this relationship be determined. Credits should be provided to the person doing the work and not just the lease holder.
      7. How will lease holder performance be monitored?  If a leaseholder closes an area without authority who deals with this?  Currently, BLM has no staff now to deal with unauthorized gates etc making any assertion of agency oversight problematic. For profit lease holders will see to maximize profits from the lease and public access is not going to align with that motivation. The idea of a local club having to sue a wall street leaseholder to reopen trails improperly closed is not appealing to us for many reasons.
      8. How does all the new efforts align with existing efforts and planning?  As outlined in these comments, the emergency authorities under NEPA or Healthy Forest Restoration Acts or similar grants of emergency authority to land managers should not be used for leasing to for profit companies. The implications to goodwill between managers and communities from emergency response efforts must be recognized and addressed.
      9. All this work would need a significant allocation of BLM staff to support NEPA and leaseholder monitoring and many other facets of large projects.   We are concerned this new management model will only exacerbate current staffing shortfalls within the agencies rather than resolve them.  Our programs provide significant funding for staff and NEPA and this funding really does not improve the staffing situation.  Why would a lease holder be any different? District rangers will still need to sign EA or Cat ex, cultural resource inventory will still need to occur, §7 consultation will still be needed, public meeting held for conservation efforts.  This will greatly expand staff demands and this is all going to be needed before a lease is ever signed. This will mean projects we would like to move will simply fall further down the list of priorities.
      10. These credits appear to be valuable and if we can obtain credits for the state OHV programs, our desire would be to resell the credit and then directly reinvest the proceeds in the program to support more work on the ground almost immediately.  The issuance of credits to NACs would provide profits to shareholders and that funding would probably have a much longer route back to reinvestment.
      11. How will any improvements be maintained in the long run once the lease has run out?  Leaseholder will have no reason to continue maintenance.

While we are aware that many of these questions are outside the scope of this Proposal when it is viewed in isolation, many of these concerns would be immediately if the relationship of NACs to federal lands was handled in a more coordinated and cohesive manner. As a result,  we are again asking these questions again in the hope of triggering meaningful public engagement.

6. Conclusions.

The above Organizations must vigorously  oppose the proposed  expansion of authority to issue temporary closures and restriction orders on lands managed by the BLM provided in the Proposal. The Proposal spans a mere five pages of the Federal Register and provides random unsupported assertions combining wildly disparate situations in an attempt to support the Proposal.  The Proposal asserts to be creating new management authority despite BLM having been provided this authority for decades. The Proposal then addresses unusual concerns around how this existing authority would be applied, such as asserting there are significant appeals of emergency closures currently. This is problematic for many reasons.

Our Opposition to the Proposal compounds when the Proposal then attempts to provide new basis for closures, based on concepts such as “implementation of management responsibilities” for unspecified periods of time. No discussion of what this term means or how it could be applied under existing regulations is provided at all. The Proposal also appears to create the possibility that emergency closures could span decades by allowing closure orders to exist until Resource Management Plans can be updated.

The Proposal is highly frustrating to existing partners as it appears to merely another step in the opening of BLM to large scale leasing of federal public lands to Natural Asset Companies without public engagement in any phase of this discussion.  The Proposal is clearly seeking to allow emergency closure orders to be issued in circumstances where there is little proximate and significant risk to the public simply to avoid NEPA analysis of leasing efforts. It is highly frustrating the Proposal seeks to apply provisions created for effective and efficient manager response to true on the ground emergencies in a manner that was never intended when this authority was created. We believe this effort will ultimately be unsuccessful and could actually result in significant negative impacts to resources. The use of emergency response provisions in this manner will create significant erosion of support for these provisions and expand distrust of the public in any action the agency takes.

The Organizations and our partners remain committed to providing high quality recreational resources on federal public lands while protecting resources and would welcome discussions on how to further these goals and objectives with new tools and resources. If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com) or Fred Wiley (661-805-1393/ fwiley@orba.biz).

Respectfully Submitted,

Scott Jones, Esq.
Executive Director CSA
Authorized Representative COHVCO

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President
CORE

Sandra Mitchell
Executive Director, IRC
Authorized Representative, ISSA

Clif Koontz
Executive Director
Ride with Respect

Matthew Giltner
Executive Director
Nevada Offroad Association

[1] Welcome to the Off-Highway Motor Vehicle Recreation (OHMVR) Division’s Grant Programs (ca.gov)

[2] Colorado summer program is outlined here https://cpw.state.co.us/Documents/Trails/OHVGrantProgramAwards.pdf Colorado winter program is outlined here.

[3] A summary of video of these efforts to date is provided here: OHV Final on Vimeo

[4] See, Dept of Interior, Bureau of Land Management, Temporary Closure and Restriction Orders; Proposed Rule; Federal Register / Vol. 88, No. 223 / Tuesday, November 21, 2023 / at pg. 81023(hereinafter referred to as the “Proposal listing”

[5] See, Generally 43 CFR Part 9210.

[6] See, 43 CFR §9212.2

[7] See, 43 CFR §4.1a

[8] See, Proposal Listing at pg. 81024

[9] 43 CFR §9212.3

[10] See, Proposal listing at pg. 81022

[11] See, 43 USC §1742

[12] See, 43 USC §1469

[13] See, 43 USC 1748(a)(PL 111-88)

[14] See, Proposal listing at pg. 81025

[15] 40 CFR §1508.25(a)

[16] Klamath Siskiyou Wildlands Center v. Broody, 468 F.3d 549 (9th Circuit 2006)

[17] See, Proposal listing at pg. 81025

[18] Emergency Definition & Meaning – Merriam-Webster accessed 1/16/24

[19]fws.gov/sites/default/files/documents/ESA-Public-Petition-Guidance.pdf

[20] See, Weyerhaeuser v. US Fish and Wildlife Service; 586 US ___(2018) pg. 9.

[21] Notice of Withdrawal of Proposed Rule Change to Amend the NYSE Listed Company Manual to Adopt Listing Standards for Natural Asset Companies (sec.gov)

[22] See, Proposal at pg. 19588

[23] See, Proposal at pg. 19585

[24] See, Proposal at pg. 81027

[25] www.blm.gov/wo/st/en/prog/planning/nepa/webguide/departmental_manual/516_dm_chapter_11.html#11-8

[26] See, DOI; Bureau of Land Management; connecting with communities – BLM National Recreation Strategy- 2023 at pg. 2. A complete copy of this document is available here: blm.gov/sites/default/files/docs/2023-08/Blueprint for 21st Century Outdoor Recreation508.pdf

[27] See, Natural Asset Companies (NACs) | NYSE  This website was accessed January 15, 2024.

[28] Notice of Withdrawal of Proposed Rule Change to Amend the NYSE Listed Company Manual to Adopt Listing Standards for Natural Asset Companies (sec.gov)

Dept of Interior
Director- BLM (HQ-630)
Room 5646
1849 C Street NW
Washington DC 20240

RE: Proposed Temporary closures and restriction orders

RIN: 1004-AE89

Dear Sirs:

Please accept this correspondence as the comments of the above Organizations in vigorous opposition to the proposed expansion of authority to issue temporary closures and restriction orders on lands managed by the BLM (“The Proposal”). The Proposal spans a mere five pages of the Federal Register providing a wealth of random unsupported assertions combining wildly disparate situations to support creating new management authority under the guise of streamlining authority managers have had for decades. The Proposal then addresses unusual concerns around existing authority is be applied, such as asserting there are significant appeals of emergency closures currently. This is problematic for many reasons. We simply are not aware of any appeals of closures during the course of the active emergency.  We are aware of numerous closure orders being challenged when the order is in place years after the emergency has ended or when emergency conditions were never present. These are different issues and should never be lumped into a single concern or issue.

While the Proposal asserts to be streamlining existing authority, the Proposal attempts to provide new basis for closures, based on undefined concepts such as “implementation of management responsibilities” for unspecified periods of time. No discussion of what these terms mean or how these changes could be applied under existing regulations is provided at all. The open-ended nature of the Proposal creates the possibility that emergency closures could span decades by allowing closure orders to exist until Resource Management Plans can be updated despite the basis being far from an emergency.

In isolation, this is deeply concerning as much of this information is inaccurate, proposed changes are not highlighted for the public to understand and comment meaningfully on. The Proposal is highly frustrating to existing partners as it appears to be merely another step in the opening of BLM to large-scale leasing of federal public lands to Natural Asset Companies without public engagement in any phase of this discussion.  The Proposal is clearly seeking to allow emergency closure orders to be issued in circumstances where there is little proximate and significant risk to the public simply to avoid NEPA analysis of leasing efforts. It is highly frustrating the Proposal seeks to apply provisions created for effective and efficient manager response to true on the ground emergencies in a manner that was never intended when this authority was created. We believe this effort will ultimately be unsuccessful and could actually result in significant negative impacts to resources. The use of emergency response provisions in this manner will create significant erosion of support for these provisions and expand distrust of the public in any action the agency takes.

1(a) Who we are.

Prior to addressing the specific input of the Organizations on the Proposal, we believe a brief summary of each Organization is needed.  The Colorado Off-Highway Vehicle Coalition (“COHVCO”) is a grassroots advocacy organization representing the OHV community seeking to represent, assist, educate, and empower all OHV recreationists in the protection and promotion of off-highway motorized recreation throughout Colorado. COHVCO is an environmental organization that advocates and promotes the responsible use and conservation of our public lands and natural resources to preserve their aesthetic and recreational qualities for future generations. The Trail Preservation Alliance (“TPA”) is an advocacy organization created to be a viable partner to public lands managers, working with the United States Forest Service (USFS) and the Bureau of Land Management (BLM) to preserve the sport of motorized trail riding and multiple-use recreation. The TPA acts as an advocate for the sport and takes the necessary action to ensure that the USFS and BLM allocate a fair and equitable percentage of public lands access to diverse multiple-use trail recreational opportunities. Colorado Snowmobile Association (“CSA”) was founded in 1970 to unite winter motorized recreationists across the state to enjoy their passion. CSA has also become the voice of organized snowmobiling seeking to advance, promote and preserve the sport of snowmobiling through work with Federal and state land management agencies and local, state and federal legislators telling the truth about our sport. CORE is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. Idaho Recreation Council (“IRC”) is comprised of Idahoans from all parts of the state with a wide spectrum of recreational interests and a love for the future of Idaho and a desire to preserve recreation for future generations. The Idaho State Snowmobile Association (“ISSA”)is an organization dedicated to preserving, protecting, and promoting snowmobiling in the great state of Idaho. Our members may come from every corner of the state, but they all share one thing in common: their love for snowmobiling. Ride with Respect (“RwR”) was founded in 2002 to conserve shared-use trails and their surroundings. RwR has educated visitors and performed over twenty-thousand hours of high-quality trail work on public lands most of which has occurred on BLM lands. Over 750 individuals have contributed money or volunteered time to the organization. Nevada Off Road Association (NVORA) is a non-profit Corporation created for and by offroad riders. NVORA was formed to specifically fill the void between the government managers and the rest of us who actively recreate in the Silver State. NVORA does this by maintaining a consistent, durable, and respected relationship with all stakeholders while facilitating a cooperative environment amongst our community. Collectively, TPA, NORA, CSA, CORE, IRC, RwR, ISSA, and COHVCO will be referred to as “The Organizations” for purposes of these comments.

Nationally, the OHV community provides between $200 to $300 million dollars into public lands management every year as a result of their voluntarily created OHV/OSV registration programs. As an example, the California OHV grant program provided $85 million in grants last year, and over the life of the program has funded more than $750 million in direct funding to public land managers.^[1] The benefits of the California OHV program are outlined as follows:

* Through our USFS partners, over 18,000 miles and 269,000 acres are available for OHV Recreation.

* Through our BLM partners, over 18,000 miles and 478,000 of acres are made available for OHV Recreation.

As another example, Colorado’s voluntary registration programs put almost $9m annually in grants back on public lands, and over the life of this program this has now provided more than $100m in funding for public lands to maintain and protect all forms of resources.^[2]  This Program funds more than 60 maintenance crews throughout the state in addition to equipping and often training them to.  Clearly efforts at the scale of these voluntarily created programs warrant inclusion in the discussion of possible closures for emergency response and conservation efforts as our involvement has addressed many emergency situations and restoration efforts following an emergency.  Most states that BLM owns lands in have similar programs that provide similarly high levels of funding but these programs extend well beyond just federal public lands and many states have OHV/OSV programs but have little to no federal public lands.

The failure to recognize partnerships like this and its benefits for recreation and conservation have resulted in erroneous and damaging statements in the Proposal.  This recognition of the benefits of multiple-use restoration efforts through partners in protecting the future of multiple uses in the area could have been highly valuable. As an example, the Colorado OHV program has contributed more than $1m over the last several years to repair the impacts of the East Troublesome fire which impacted more than 190k acres largely on BLM’s Kremmling FO and Arapahoe/Roosevelt NF.  Initial efforts targeted restoring basic access to the area to allow restoration efforts to even start and we anticipate planting many seedlings and monitoring the area to conclude these efforts.[3]  This is a type of project that commonly occurs within our OHV/OSV programs.  These are the type of projects we would be concerned about slowing down if there misplaced concerns around emergencies.  Why would a partnership such as this not be highlighted and targeted for future planning efforts?

The efforts of the motorized community extend well beyond landscape level efforts and often are targeting much smaller scale areas on an on-going basis through permits. Many of our local volunteer clubs work with land managers have executed “adopt a trail” or “adopt a road” type agreement for large portions of routes in planning areas.  These clubs often partner with managers on very small acre projects and efforts to address impacts of illegal shooting or dumping in areas with clean up days. Often these events are the basis of a temporary closure order from the BLM Office to allow for this effort to take place and these efforts have been highly effective in mitigating impacts of illegal activities.  Why would this need to be changed?

The Organizations and our members obtain hundreds of permits every year from BLM to hold events of all sizes.  These include many of the larger races such as King of the Hammers or Best in the Desert races noted in the Proposal but also include many tiny events where exclusive possession of public lands is not sought and in some situations events may not come into contact with BLM managed lands. These small events may include poker runs, educational events, site cleanups and many other efforts.  Our experiences have been diverse but we are not aware of any permitted events where there have been claims that the BLM lacked authority to timely close the area if the event posed a possible risk to public safety or resources. We are concerned that poor public engagement or expanded closure authority could be used as a tool to stop permitted events by those that may have opposed the event in the NEPA process.

1(b) The Proposals failure to analyze existing partnerships will result in damage to those relationships.

In our experiences, the assertions the Proposal is seeking to avoid delay in emergency public lands closures, which are based on situations that are unforeseen and a direct imminent risk to public safety or resources simply lack factual basis.  The Proposal asserts delays could result from possible appeals of temporary closure orders under processes put in place to protect due process and public engagement of interests that might be impacted by closures.  This simply has not been our experience. The Organizations are aware of objections and challenges to overly broad closure orders that persist for years following an emergency response but this is a different situation than is raised in the Proposal.   We are unable to understand how permitted events could be seen as a similar management situation to emergency response.

BLM has a huge number of provisions that allow for temporary closures and restrictions of public lands for a variety of reasons.  Understanding the nuisances of these existing authorities and response tools is critical to an effort to reform or streamline any management authority.  BLM consistently uses these authorities to respond to proximate and unforeseen risks to public safety or resources, which the issuance of closures in response to wildfires or floods. Avoiding impacts to the existing authority to issue this type of Order and the issue specific remedies that are provided for subsequent to the issuance of the emergency order would seem to warrant some type of discussion in the Proposal. These factors range from true emergency closures during the event to restoration efforts  that may be occurring in an area post event.  Rather than discussing the relationship of existing emergency provisions, the Proposal would appear to consolidate all permitted events and emergency management actions into a single category for the issuance of closure orders.  This consolidation of authority could create barriers for management rather than resolve them as requirements for meeting various statutory requirements for funding responses are not addressed.

The preservation of due process and public engagement of interests that may be impacted by any closures is critical to protecting multiple uses. The Proposal, when taken in conjunction with the recently released BLM Conservation Strategy, only increases our concerns for the protection of due process and public engagement for any interest that may be impacted in this process. This new Conservation Strategy created the concept of a conservation lease that could be issued in response to the climate emergency.  Assuming for the sake of these comments, there is a climate emergency the challenges sought to be addressed in the Conservation Strategy are neither unforeseen, or when compared to a fire or flood, or pose  the immediate and proximate risk to public safety or resources to warrant an expedited closure processes without public engagement.  While the Conservation Strategy addresses threats less proximate and unforeseen than a traditional emergency, the Proposal seems to allow a similar response from managers. When the Proposal is taken in concert with the Conservation Strategy, it appears the ending management situation would allow for closures of public lands by the leaseholder but fails to address how these closures would be vetted for NEPA compliance and other regulatory requirements. The current Proposal only expands this concern around due process and public engagement as the Proposal seeks to provide almost open-ended authority for managers to close areas until RMPs can be revised to address an issue.  The Organizations are unable to understand how an emergency risk could be tied to an artificial deadline of a revision of a planning document that maybe decades away would not be hugely problematic to implement on the ground.

Each of these existing models of management responses are the result of the highly variable nature of the proximity and foreseeability of each risk to the public or resources.  The proximity of risk to the public or resources and foreseeability of the risk are factors that must be balanced in any regulatory structure responding to this issue with due process protections and public engagement. The Organizations are supportive of greater transparency in public lands management and public access to public lands for a variety of reasons.  The Organizations vigorously assert the Proposal fails to strike the proper balance in protecting due process and public engagement in public lands management and moves towards closure orders being issued for management concerns that have not been subjected to NEPA or emergency closures being issued for issues that are neither unforeseen or a direct imminent risk to public safety or resources.

2(a)(1). Existing statutes and regulations allow the IBLA and the BLM Director to issue immediately applicable emergency closure orders.

Currently, BLM managers have wide ranging authority to issue temporary closure orders for public lands, including permitted events and emergency responses. The Organizations are not aware of concerns around the use of this authority when it is narrowly tailored and responding to a serious and direct threat to public safety or resources.  However, land managers must balance a variety of concerns in making these decisions.  The rational use of these closure authorities has created significant trust between managers and local communities when these communities face an emergency. Goodwill between managers and the public is immediate when BLM managers use their authority to protect public safety or resources by issuing closures in response to local conditions such as fires, floods and other unforeseen significant risks to that community. Closure orders are also issued for events and there is often support from the communities who feel engaged in the decision making for events and often are the direct recipients of the economic benefits of the events. The management goodwill from existing efforts will be negatively impacted if the Proposal is implemented, as there is no balance of competing interests even addressed and risks are simply not a direct or imminent risk to public safety or resources due to a localized condition.

Unlike existing regulations, the Proposal fails to balance between emergency closure authority and legally required due process and statutorily required public engagement in public lands management decision making.  This will massively erode public support for emergency response and other needed management actions. The Proposal is entirely unsuccessful in providing any credible basis to alter the current regulatory mechanisms addressing these issues.  Rather than addressing changes in a meaningful manner, the Proposal chooses to make random inaccurate assertions on various issues, including existing closure authority. The failure of the Proposal to address authority in a coordinated and thoughtful manner will create conflicts with communities as some will be forced to bear more burden of closures than others, who are facing a similar risk. Questions about why public land was closed in certain areas and not others to address a threat that is entirely unrelated to the public lands will not lead to anything but creating division between communities and managers.

The failure of the Proposal to accurately reflect current authority is immediate as it asserts managers lack of authority to issue immediately effective emergency closures.  As an example, the Proposal makes numerous references to public safety or resources being the basis for the request for expanded closure authority such as the following:

“However, aspects of 43 CFR 8364.1— such as the requirement to publish temporary closure and restriction orders in the Federal Register and the absence of a provision authorizing the BLM to issue temporary closure and restriction orders with immediate full force and effect—can hinder the BLM’s ability to respond effectively to exigencies that arise on public lands. Streamlining and modernizing the manner in which the BLM notifies the public about temporary closure and restriction orders, as well as providing authorized officers with the ability to issue such orders with immediate effectiveness, would allow the BLM to better perform its mission to responsibly manage public lands and protect public safety.”[4]

The conflict with this assertion and existing regulatory authority is immediate and immense as existing BLM regulations provide broad authority for emergency closures in a wide range of situations.[5] It has been our experience that emergency closure orders in relation to active fires are an overwhelming reason for the issuance of closure orders. We are not aware of any challenges being presented around the timely issuance of closure orders as part of an active fire response.  The lack of legal challenges is evidence of the overwhelming support the public has for these efforts.  The existing regulations specifically allow emergency closure authority in fire response efforts as follows:

“§9212.2 Fire prevention orders.  (a) To prevent wildfire or facilitate its suppression, an authorized officer may issue fire prevention orders that close entry to, or restrict uses of, designated public lands.

(b) Each fire prevention order shall:

(1) Identify the public lands, roads, trails or waterways that are closed to entry or restricted as to use;

(2) Specify the time during which the closure or restriction shall apply;

(3) Identify those persons who, without a written permit, are exempt from the closure or restrictions;

(4) Be posted in the local Bureau of Land Management office having jurisdiction over the lands to which the order applies; and

(5) Be posted at places near the closed or restricted area where it can be readily seen.”[6]

Contrary to the assertions in the Proposal that BLM managers lack authority to issue closure orders that are immediately effective, the above provisions provide broad authority for closures in response to an emergency that is unforeseen and which presents an imminent and direct threat to public safety or resources. We are unable to identify any emergency closure order issued for active fire response that has been appealed.  If this is a concern it should have been raised in the Proposal and addressed with greater detail.  While we are aware of challenges to closure orders being in place extended periods of time after the proximate and direct risk to public safety or resources has passed, this is a different management concern and outside the scope of what the Proposal is seeking to achieve.

The inaccuracy of the Proposal summary of this management situation expands as existing BLM regulations allow for expedited appeal process to review emergency closures and many other decisions at the BLM Director’s discretion. Current BLM regulations specifically provide this expedited authority as follows:

Ҥ 4.21 General provisions.

(a) Effect of decision pending appeal. Except as otherwise provided by law or other pertinent regulation:

(1) A decision will not be effective during the time in which a person adversely affected may file a notice of appeal; when the public interest requires, however, the Director or an Appeals Board may provide that a decision, or any part of a decision, shall be in full force and effective immediately;”[7]

The Organizations simply cannot envision a situation where an emergency closure for an issue that was truly unforeseen and a risk to the public or resources, such as a fire or flood, would not be subject to the use of the public interest exception provided. If this situation is actually arising, the remedy should be educating line officers on their ability to issue orders such as this and providing a clearly defined guidance document for local managers to understand the Director concerns about making a decision in this manner. The remedy simply is not new regulations. The Organizations are concerned that this waiver provision is not mentioned in the Proposal, and this creates the possibility the Proposal is seeking to address issues outside those discussed in the register notice.  The Organizations are not able to envision a situation where there is an actual emergency threatening the publics health safety and welfare or resources, where such a finding would be difficult to issue.   These Orders simply are not challenged or appealed to the best of our knowledge. If this type of an appeal is common, the Proposal should have provided this information and has not.

Our concerns around the basis and direction of the Proposal expand when the exceptions  for closure orders specifically addressed in the Proposal are reviewed. These concerns are unusual to say the least.  An example of the unusual nature of these concerns would be exemplified in the Proposal provisions such as the following:

“The proposed rule clarifies that specific groups can also be exempt from closure or restriction orders, such as Tribal members that may need to access an otherwise closed area for traditional or cultural uses.[8]”

While the Organizations vigorously support the right of any member of the public to access public lands, the Organizations are finding it difficult to understand why this provision would be included in the Proposal if true emergency closures were the management concern. We find it difficult to identify a cultural resource that would allow public access to an area that was subject to closure for a fire or flood response effort. Again, if this was a management concern of some scale, the Proposal should have addressed the scale and scope of this issue.

The questionable basis of the Proposal around closure orders increases as many existing regulations provide a far more broad authority to managers to allow access into restricted areas for fire response than is provided by the above provisions.  BLM fire closure regulations again are used as an example of managers authority to provide limited public access as these regulations provide broad authority on this issue as follows:

Ҥ9212.3 Permits.

(a) Permits may be issued to enter and use public lands designated in fire prevention orders when the authorized officer determines that the permitted activities will not conflict with the purpose of the order.

(b) Each permit shall specify:

(1) The public lands, roads, trails or waterways where entry or use is permitted;

(2) The person(s) to whom the permit applies;

(3) Activities that are permitted in the closed area;

(4) Fire prevention requirements with which the permittee shall comply; and

(5) An expiration date.

(c) An authorized officer may cancel a permit at any time.”[9]

This authority is commonly used to allow those impacted by fire and flood to gain access to areas to understand the scope and scale of impacts to them at the first opportunity the area is arguably safe for them to access the area. Could this authority be used to provide access to tribal members to access a cultural site? That answer is of course. We would be opposed to any assertion this authority has been used in a discriminatory manner or in a manner not recognizing cultural concerns.

Given the immensely broad existing authority to provide for site and issue specific flexibility in the administration of closure orders, the Organizations must question why cultural and tribal issues might be a concern.  The Proposal again fails to identify what significant concern is there for emergency closures and possible impacts to cultural and tribal needs?  As a result, the new provisions provide less authority for managers to address access issues during a true emergency as there can be an innumerable number of issues that could be addressed in an emergency outside cultural and tribal access. Clearly the provision is not here to protect tribal access to lands that are closed due to an emergency such as a fire or flood.

The Organizations are also aware that many tribal and cultural sites are sensitive in nature and release of information on the sites are often legally protected. The relationship of these protections and the new provisions should be a concern, as the use of this provision to allow access would entail the need to provide additional legal basis for the order being issued.  This is a hurdle to the effective management of emergency responses as current authority is broad in nature and managers would have no trouble outlining an order that allowed access to tribal members without raising concerns about confidential information on sites and other resources. Again, these types of concerns also make us question why emergency response and permitted issues were thought to be the proper basis for the scope of the Proposal.  Cultural and tribal access in areas closed for permitted events should have been addressed in the NEPA process, and concerns like this should not be allowed to intervene after the NEPA process has closed as this would create an immense burden on the permit holder and possibly create public safety issues or resource impacts for the permit. Rather than streamlining the issuance of orders provisions such as this will only make the process more complicated.

2(a)(2). Existing CEQ regulations allow alternative arrangements for NEPA compliance in emergency response situations.

Existing BLM regulations further allow for a streamlined and expedited NEPA compliance process for emergency response, which further avoids the concerns about a possible delay in response by managers in emergency situations.  Given these broad and encompassing provisions for emergency response, the Organizations are not able to understand a benefit from including permitted events in the scope of the Proposal.  This is another example where the Proposal is complicating rather than streamlining any response, as these provisions that are currently reasonably clear.  This streamlined authority is outlined in BLM NEPA handbook as follows:

“2.3 EMERGENCY ACTIONS In the event of an emergency situation, immediately take any action necessary to prevent or reduce risk to public health or safety, property, or important resources (516 DM 5). Thereafter, other than those actions that can be categorically excluded, the decision-maker must contact the BLM Washington Office, Division of Planning and Science Policy (WO-210) to outline subsequent actions. The CEQ regulations (40 CFR 1506.11) provide that in an emergency “alternative arrangements” may be established to comply with NEPA. Alternative arrangements do not waive the requirement to comply with NEPA, but establish an alternative means for compliance.

The CEQ regulations for alternative arrangements for dealing with such emergencies are limited to the actions necessary to control the immediate effects of the emergency. Other portions of the action, follow-up actions, and related or connected actions remain subject to normal NEPA requirements, so you must complete appropriate NEPA analysis before these actions may be taken (40 CFR 1506.11).

The “alternative arrangements” take the place of an EIS and only apply to Federal actions with significant environmental impacts (see section 7.3, Significance). If the proposed action does not have significant environmental effects, then the alternative arrangements at 40 CFR 1506.11 do not apply.

If you anticipate the proposed emergency response activity will have significant environmental effects, we recommend that you assess whether an existing NEPA analysis has been prepared (e.g., implementing preexisting plans) or whether there is an applicable exemption. For example, certain Federal Emergency Management Agency (FEMA) response actions are exempt from the NEPA (see the NEPA Handbook Web Guide).

Given the large amount of flexibility already provided for in existing regulations, the Organizations find any assertion of possible delay in the ability of managers to respond to emergencies difficult to support or understand. If there are concerns, the Proposal should have addressed them.  The large amount of latitude in emergency response currently provided also causes the Organizations concern as this clarity is based on emergency management concerns and not the closures that are related to permitted events that have gone through NEPA.  These are separate issues and should be dealt with separately even if they are both addressing possible concerns for public safety or resources.

2(a)(3) Existing regulations provide for identification of starting and ending times of emergency closure orders.

The systemic failure of the Proposal to accurately address existing closure powers and existing minimum requirements for issuance of an order using this authority is again displayed in the Proposal provisions addressing the specificity of timing requirements in the issuance of closure orders. Existing provisions are largely aligned on the need to specify the start and end date of any emergency or closure order.  These provisions are simply not addressed in the Proposal, which asserts the declaration of closure times is a benefit of the Proposal. This alleged benefit is outlined in the Proposal as follows:

“require that all orders specify the date and time that a temporary closure or restriction becomes effective and terminates;”[10]

As previously noted in these comments, 43 CFR §19212.3 specifically mandates process needed to issue closure and restriction orders. These regulations have specific provisions requiring the timing of the applicability of these restrictions for a beginning and end date.  Again, we are unable to align these existing highly specific regulations addressing the need for specific dates to start and stop area closures with an assertion that the Proposal will expand the clarity in the scope of closure dates as identified.

2(a)(4) Emergency provisions provide significant short and long term emergency response declarations

Accurately addressing the basis and specific requirements for the issuance of closure orders can greatly impact the long-term recovery path for an area after the direct threat of an emergency has passed.  Many of the recovery resources that are available are unique and are somewhat tailored to the issue being responded to. As an example, existing regulations allow managers are allowed to hire staff for activities during an event, which authority is specifically provided as follows:

“Where in his judgment sufficient search, rescue, and protection forces are not otherwise available, the Secretary is authorized in cases of emergency to incur such expenses as may be necessary (a) in searching for and rescuing, or in cooperating in the search for and rescue of, persons lost on the public lands, (b) in protecting or rescuing, or in cooperating in the protection and rescue of, persons or animals endangered by an act of God, and (c) in transporting deceased persons or persons seriously ill or injured to the nearest place where interested parties or local authorities are located.”[11]

The ability to make emergency hires is further supplemented by the ability to address salaries in emergency situations, which is outlined in statute as follows:

“Employment and compensation of personnel to perform work occasioned by emergencies. Notwithstanding any other provision of law, persons may be employed or otherwise contracted with by the Secretary of the Interior to perform work occasioned by emergencies such as fire, flood, storm, or any other unavoidable cause and may be compensated at regular rates of pay without regard to Sundays, Federal holidays, and the regular workweek.”[12]

The expanded management authority provided for administrators in response to an emergency situation continues in many instances well beyond active emergency response.  Congress has provided numerous issue specific funding streams for longer term response to challenges such as the FLAME act, which addressed funding for administrators to remediate areas impacted by fire after the direct impacts had passed. [13]Given the complexity of these management models, the Organizations must ask why analysis of possible impacts to these issue specific resources and funding streams from the Proposal is not addressed in the Proposal.  This would be a major concern if streamlining emergency and permit response was the issue to be addressed. This lack of information makes us think a streamlined response is not what the Proposal is seeking.

2(b). The Proposal should not be used as a substitute for NEPA compliance for permits or planning.

The Organizations vigorously assert that any streamlined or revised authority to issue closure or access restriction should not be used as a replacement for the full NEPA process. The Organizations have concerns around  the relationship of existing NEPA regulations and requirements to the implementation of the entire Proposal.  Throughout the Proposal there are numerous references to compliance with NEPA being allowed. These are without weight if emergency provisions of NEPA are used for the compliance with NEPA for management decisions that are not a direct and significant threat to public safety or resources.  While there may be projects that could be performed with a categorical exclusion or using a streamlined NEPA process, such as those provided in the Healthy Forest Restoration Act, there are also projects that will be undertaken that will need an EA or EIS to undertake.

As noted in other portions of these comments, NEPA provides significant flexibility for managers to comply with its requirements as part of an emergency response effort. These short term answers should not be seen as a  manner to avoid addressing long term underlying problems with areas impacted by any issue.  An example of this concern is the fact that in many areas BLM resource management plans are simply horribly out of date. Given the unusual nature of the Proposal the Organizations are concerned that this new closure authority could be seen as a stop gap or method to avoid public engagement in RMP revisions.

3(a)(1). The Proposal seeks authority well outside permitted activities and emergency response.

While the Proposal asserts to be addressing emergency situations and permits,  often times the direction of the Proposal strays far from these issues and directly addresses the incorporation of emergency closures as part of a basic management model. The Proposal seeks to provide hugely broad authority on many instances and appears to be an attempt to simply avoid undertaking NEPA analysis and/or public engagement in a timely manner.

As we have outlined previously in these comments, many of our Organizations engage on a large amount of site specific remediation efforts, such as trash pickups or cleaning illegal shooting ranges making the need for both long and short term response to issues important to our concerns. These short term responses are done with a desire to address issues and impacts that managers are unwilling or unable to manage.  Long term resolution of these types of problems require NEPA analysis, coordinated responses from other government agencies, partners and wide public engagement.  If an illegal shooting area is closed, part of the decision process must include educating the public where legal shooting opportunities are provided.  Only this type of integrated management response will address issues and protect resources.

This desire to avoid NEPA by merely closing areas for reasons that remain unclear, is reflected as follows in the Proposal as follows:

“Under the proposed rule, the BLM would continue to establish closures and use restrictions after other management strategies and alternatives have been explored, including, but not limited to, increased law enforcement, cooperative efforts with local governments, engineering, education, and outreach.”[14]

We have to question how the above fact pattern could ever be involved in emergency response or closures for permitted activities. Many times responses such as those above are only provided with partners, meaning public engagement and good communication are necessary to truly resolve issues.  Clearly the above situation is addressing something that has occurred for years, which begs the question of why would a long-term closure be thought to be advantageous rather than pursing NEPA in a timely manner. This is why we are very concerned about the implementation of management responsibilities being used as  the basis for closures.

Not only is this management model going to erode good will for effective management responses it will put resources at risk as it could be much easier for manager to simply close an area and ignore the problem rather than undertake the NEPA necessary to resolve the issue.  Using an emergency closure in this manner would also appear to immediately violate NEPA requirements which are outlined as follows in the Code of Federal Regulations:

“§ 1508.25 Scope.  Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. The scope of an individual statement may depend on its relationships to other statements (§§ 1502.20 and 1508.28). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:

(i) Automatically trigger other actions which may require environmental impact statements.

(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.

(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.

(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.”[15]

The Organizations cannot envision where the fact pattern provided in the Proposal could be used in any other manner than to avoid timely NEPA analysis and public engagement on issues. This situation would be a per se violation of NEPA regulations and would represent a management direction that should be avoided moving forward rather than one that was highlighted. Rather than implementing a management responsibility, the provision is creating a management authority that simply does not exist.  Provisions such as this give us great concern regarding both possible due process concerns for permittees and public engagement requirements of numerous statutes being avoided.  The Organizations submit this concern can only be resolved with additional protections being added to the Proposal to avoid authority being used in this manner.

3(a)(2)  Multiple uses under new mandate must be protected from impacts from implementation of management responsibilities that is not defined.

The Proposal seeks to create an entirely new basis for the issuance of emergency closures and access restrictions, which the Proposal calls “the implementation of management responsibilities.” The Organizations are very concerned that the Proposal makes no reference to protecting multiple use mandates with the new “implementation of management responsibilities” authority provided for closures.  In direct contradiction to protecting existing legal obligations the Proposal  lays out situations where this new authority could be used to avoid legal obligations. The systemic avoidance of existing legal obligations is exemplified by the failure to define the term  “implementation of management responsibilities” in the Proposal.

Definitions of foundational terms such as this will be critical to implementation of the Proposal as there is no generally accepted definition for this term.  The need to define this foundational element of the Proposal is exemplified by the fact  that all existing definitions arguably related to the concept proposed appear to be related to human resources management. While the position of implementation manager may be somewhat defined in the employment field any of these job descriptions are highly industry sector driven and unrelated to the concept being proposed. The failure to define what could and could not be a management responsibility that would be implemented makes any substantive voicing of concerns around the application of the concept impossible. The hugely open ended nature of this concept is concerning as it could be used to close an area for endangered species issues or the construction of a massive wind or solar farm or a new open pit mine. None of these efforts will benefit recreation.  However this term is finally defined and applied, this definition must protect multiple uses, due process and public engagement of all interests relative to the implementation of responsibilities being undertaken. Implementation of management responsibilities should not be used to create management authority not provided for already or avoid full NEPA compliance.

The failure to define a foundational term such as the “implementation of management responsibilities” creates significant concerns as the concept that is being proposed is wide ranging at best.  The concept of implementing management responsibilities is very broad in nature and triggers concepts far in excess of the BLM merely hiring a contractor to perform services for them.  Courts reviewing these provisions have held that schemes  avoiding NEPA are invalid holding that:

“BLM may take steps to “maintain” plans under 43 C.F.R. § 1610.5-4, which permits maintenance as necessary to reflect minor changes in data. Such maintenance is limited to further refining or documenting a previously approved decision incorporated in the plan. Maintenance shall not result in expansion in the scope of resource uses or restrictions, or change the terms, conditions, and decisions of the approved plan. Maintenance is not considered a plan amendment and shall not require the formal public involvement and interagency coordination process described under §§ 1610.2 and 1610.3 of this title or the preparation of an environmental assessment or environmental impact statement. Maintenance shall be documented in plans and supporting records. 43 C.F.R. § 1610.5-4.”[16]

The Organizations are concerned that without a clearly defined scope of actions that could be taken within this new authority to implement management responsibilities, management will be undertaken without NEPA or public engagement. This will do nothing more than erode public trust in the management decisions, result in decisions that are not sustainable in the long run and immense amounts of litigation. In order to avoid these issue the definition must clearly resolve questions such as the following: What is the scope of limitations on this ability to designate this authority? Is it an emergency based authority? Is it a resource management plan, that could be decades out of date? Is it some other statutory authority, such as the endangered species act?

3(a)(3). The concept of “temporary” must be clearly defined in the Proposal.

The Organizations are VERY concerned that the window of time that the Proposal appear to be addressing and operating under are never addressed and appears to be highly flexible in challenges it seeks to address.  There is a significant difference between a temporary closure of any area for an afternoon long event and a large scale closure that might last many years.  Clearly identifying an expected life span of a management decision is critical to the success of the management decision.  This type of concern is frequently see in existing emergency response efforts. Often large closure areas are acceptable and advised in fire response when fires are not easily located or responses are being developed.  Often management efforts expand, closure areas adapt to expanding information.  Once fires are extinguished, closures of areas not impacted are often lifted. Even areas impacted are quickly reopened. Closures spanning many years after events and responses have ceased are opposed by the public.

Rather than addressing the need to tailor closures and management responses to the minimum amount needed to achieve management goals and needs the Proposal is open ended on a concern such as this. An example of this would be how the concept of “temporary” is discussed in the Proposal:

“the term ‘‘temporary’’ should be understood in relation to the underlying condition for which the BLM determines that a closure or restriction is warranted; it would not impose any specific time limitations on a closure or restriction order issued under § 8364.1. Instead, a temporary closure or restriction order would generally remain in effect until the situation it is addressing has ended or abated, it expires by its own terms, or the BLM issues a superseding decision, which can include incorporating the terms of a closure or restriction order into a resource management plan in accordance with the regulations at 43 CFR part 1600.”[17]

The Organizations must express their immediate and complete opposition to any closure that would remain open until any RMP was revised, as we are able to identify numerous BLM RMP that were completed in the late 1970s and early 1980s and have never been updated.  The possibility that a temporary closure could span more than 45 years is simply unacceptable in every way.  This would be a violation of numerous planning and NEPA requirements that have been addressed previously in these comments.

The conflict of this assertion with numerous internal provisions of the Proposal must be recognized and addressed.  The Organizations must note that the Proposal asserts a benefit of providing the requirement of identifying starting and stopping dates for any order. As previously noted, this provision already exists. Additionally, identification of a start and end date for closure orders would imply this is based on an identifiable time on a calendar and not an unspecified point in the future when a management decision might occur. These types of open ended scope of temporary closures would also support our concerns regarding due process and public engagement in decision making in this process. While the Proposal generally asserts to be simply streamlining protection of the public for permits and emergencies, these provisions cause us to believe that a much larger review of the BLM planning process is sought to be undertaken.

3(b)(1).  The definition of an emergency should not be altered to allow political goals to be achieved without public engagement.

The relationship of the Proposal’s expanded closure and access restriction authority to other management initiatives is not addressed or analyzed despite a clear relationship between the Proposal and at least one other effort. Clearly identified boundaries of what the Proposal considers and emergency and what would not be an emergency or permitted event would be very helpful and again is not provided. One of the strengths of the emergency concept and authority to close lands for permitted events is a proximate threat to the public safety or resources that is unforeseen or for management of the event to avoid public safety or resource concerns.  As noted in the previous sections, the authority for this type of management action is scattered across numerous statutory provisions. Most do not have a definition of emergency as these provisions are simply applying the commonly understood definition of terms and this has led to significant goodwill being developed in permitted and emergency closure situations.

While the Proposal does not specifically address a change in the definition of emergency, many of the provisions seem to open that discussion without addressing it directly. This is a concern that must be clarified in the comments as we are applying the generally understood definition of emergency in our comments, which  Merriam Webster defines an emergency as follows:

“1: an unforeseen combination of circumstances or the resulting state that calls for immediate action

2: an urgent need for assistance or relief”[18]

The Organizations would be vigorously opposed to any effort that resulted in the commonly understood definition being applied more loosely or to further a management goal that has been determined without serious public engagement and NEPA review. Too often concepts such as emergencies or crisis or other terms evoking the possibility of catastrophic implications to public safety or resources are used to gain attention to issues. This does not mean these are emergencies as often these issues are entirely foreseeable and are not presenting an urgent risk to public safety or resources.

3(b)(2) A clear definition of an emergency is needed to maintain programmatic boundaries between management efforts.

The need for a clear definition of emergency is needed to avoid overlap and possible conflict between various management efforts and programs. When there is a perception that a statutorily mandated management effort is not responding fast enough for certain political interests, assertions of the need for emergency responses from other those interests are often made.  One interests dissatisfaction with the pace of any management effort should never create an emergency for other interests or managers. It has been our experience that frequently this type of artificial emergency type concern is expressed to local managers and the open ended expansion of these managers ability to declare emergencies and provide management responses will only catapult the use of this tactic. The challenges to local managers will be immediate as they are already horribly short staffed and unable to provide basic services in many situations.  Adding more issues for them to immediately address will only exponentially compound this shortfall rather than resolve it as decisions will not be well researched or understood.  The problems this will create in the long term will be immense.

Not only could this open-ended emergency authority compound existing management problems, it could create entirely new problems and conflicts.  The need for a clear definition of emergency to avoid the possibility of expanded legal challenges to artificial emergency type restrictions is exemplified when the relationship of the new open ended emergency authority is linked to pending listings of species on the Endangered Species list, and our concerns expand exponently when listing of plants is addressed.  The myriad of legal complications that arise from the relationship of these two issues is simply overwhelming. The Proposals failure to recognize the possibility of expanding legal challenges in the alleged attempt to reduce legal challenges to decisions is concerning to say the least. This would be a failure of one of the cornerstone benefits asserted to be coming from the Proposal and that failure to even discuss a concern like this is problematic.

For decades the US Fish and Wildlife Service has been bombarded with emergency petitions to list all kinds of species, and often these emergency listings fail to provide sufficient information to warrant further investigation.  As a result of this course of conduct, the Fish and Wildlife Service has provided extensive guidance on how to prepare a sufficient petition to list any species.[19] These emergency petition listings have spanned a few pages and seek to list dozens of species and are coupled with immense public pressure and artificial urgency to list. Other times these emergency listings are brought in response to opposition to a project that may be slated to enter the NEPA analysis phase of development or if a party has dissatisfaction with the conclusion of a NEPA effort.  Pressure to use this open-ended emergency authority could actually serve as a barrier to the NEPA processes functioning as required if the desire is to preempt or preclude the NEPA or regulatory process in other agencies. This type of ramification is a concern and again it is not discussed in the Proposal.

The possibility of legal challenges arises from the preemptive use of these new emergency powers is immediately present when these new emergency powers are sought to be used to force management decisions for species in areas that may not be habitat at all. We frequently see issues such as this around the management of modeled but unoccupied habitat for a species.  We are intimately familiar with several efforts to address modeled but unoccupied habitat as an emergency RMP revision after failures to designate this as primary habitat with the USFWS have failed.  In several instances the USFWS has provided good reasons why areas were not designated but those are never addressed in the effort to undertake RMP revisions.

This type of conflict between parallel decision making processes could be significant.  This tactic has become more problematic as the legal requirements for determinations for modeled but unoccupied habitat have significantly altered since the US Supreme Court’s unanimous 2018 decision in Weyerhaeuser  which held as follows:

“Only the “habitat” of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.”[20]

Decisions addressing critical habitat or the designation of modeled but unoccupied habitat should remain with the US Fish and Wildlife Service as the average land manager will lack both the resources and expertise to address issues such as this. Often questions such as this are brought to land managers because of the lack of expertise and resources on the issue and are raised with an immense amount of artificial urgency to protect the species and habitat. Land managers can make decisions based on this type of pressure and bad information.  The ability to provide emergency closures in this situation, which would not be legally sufficient will only expand legal challenges and result in resources being moved from actual challenges on the ground to support challenges to these decisions.

3(b)(3) Closure restrictions only compound our concerns regarding impacts of the new BLM  Conservation and Landscape Health Proposal (Docket # 1004-AE-92).

The systemic failure of the Proposal to accurately reflect current management authority, address possible challenges that could flow from proposed changes and define even basic terms in the Proposal is concerning. This course of conduct leads us to the conclusion that there could be an ulterior motive for the Proposal. The relationship of the Proposal and the new BLM Conservation and Landscape Health Proposal(“CLHP”) which is again paving the way for large scale leasing of public lands through what we assume will be Natural Assets Companies(“NACs”) cannot be overlooked. The relationship of these efforts greatly expands our concerns despite the recent decision of the SEC to withdraw their proposed regulations for the NACs business model.[21] While some have heralded the SEC withdraw of the NACs regulations, this only expands our concerns as whatever the SEC was proposing in terms of requirements would have led to at least some type of oversight and transparency in the operations of NACs. As a result of the SEC withdraw, this business model is entirely unregulated or overseen.

The relationship of the CLHP which appears to provide the ability to create temporary closures to benefit lease holders and this proposal cannot be overlooked.  Regardless of the business model used, this concept remains problematic for our Organizations.  The scattered and uncoordinated manner that land management agencies have chosen to address this concept with only adds to our frustration with this idea. Clearly large scale discussions are occurring on the issue and no one has chosen to engage with existing partners to provide understanding of the NACs concept.  The Conservation Strategy Proposal fails to address impacts of possible closures in any substantive manner with the following provisions:

“The proposed rule would define the term ‘‘casual use’’ so that, in reference to conservation leases, it would clarify that the existence of a conservation lease would not in and of itself preclude the public from accessing public lands for noncommercial activities such as recreation. Some public lands could be temporarily closed to public access for purposes authorized by conservation leases, such as restoration activities or habitat improvements. However, in general, public lands leased for conservation purposes under the proposed rule would continue to be open to public use.”[22]

The CLHP continues to outline the risks to public lands and sustainability it is seeking to remedy  as follows:

“Increased disturbances such as invasive species, drought, and wildfire, and increased habitat fragmentation are all impacting the health and resilience of public lands and making it more challenging to support multiple use and the sustained yield of renewable resources. Climate change is creating new risks and exacerbating existing vulnerabilities.”[23]

The overlap of these concerns, issues and proposed responses clearly could fall within the scope of this Proposal and support emergency declaration being issued cannot be overlooked. The Organizations have already participated in many collaboratives on a wide range of issues, including grouse, wolverine, wilderness designations and many others where issues and concerns such as those listed above are identified as emergency or crisis issues that has to be addressed. Often these assertions are made with no factual basis to support the assertion and despite the artificial urgency allegedly supporting the management action must be taken to prevent an emergency that was imminent, no calamity has befallen the area or species when management action proposed is not take.  Our concerns around the possible large scale leasing of public lands to for profit entities with no background in land management are discussed in detail subsequently in these comments.  Providing detailed and meaningful definitions for foundational terms and concepts governing leasing and emergency declarations will be a significant step towards resolving our concerns on this issue.

4(a). The NEPA analysis for the Proposal is entirely lacking.

The growing history of systemic avoidance of NEPA requirements and public engagement from the BLM around planning efforts is deeply concerning as significant revisions to planning efforts have been proposed to be implemented with almost zero public comment or NEPA scrutiny. The Organizations are opposed to the promulgation of the Rules under the Proposal with simply the issuance of a categorical exclusion, as use of a categorical exclusion in this manner is exactly the type of NEPA compliance that must be avoided in the decision making process for public lands.  This BLM decision to adopt the lowest level of NEPA analysis for this large scale and complex effort  is clearly stated in the Proposal as follows:

“The BLM intends to apply the Departmental categorical exclusion at 43 CFR 46.210(i) to comply with NEPA.”[24]

This position is problematic for the Proposal, given the national scope and scale of the rulemaking, large number of partners and significant number of efforts that are clearly occurring concurrently with the Proposal.  This is a conflict with NEPA requirements that large projects receive heightened levels of NEPA analysis.  The Organizations vigorously assert that NEPA analysis of the Proposal must be significantly expanded as proceeding under just a categorical exclusion violates both NEPA and internal guidance documents of the BLM.

Not only is this irregular, it is in conflict with the NEPA compliance for most other major rule makings in the natural resources area. The Organizations experiences with the development of the USFS 2012 planning rule are highly relevant to our concerns about the lack of analysis being undertaken by the BLM.  The USFS sought to coordinate their efforts and undertake a complete EIS of the new rule and its impacts. Rather than consolidate all issues into a single location and coordinated efforts,  BLM has chosen to divide their planning efforts into numerous initiatives, each of which are being treated as a separate unrelated proposal.   The cumulative impact of these numerous isolated efforts must be reviewed and streamlined as most decisions will be made under multiple overlapping standards, making the relationships of these standards to each other critical in developing an effective decision making process.  An efficient effective process will also foster better relationships with partners, as partners will not be forced to attend repetitive meetings or discussions to address similar issues.

Any assertion the Proposal may continue forward with just a Categorical Exclusion and comply with NEPA planning requirements is immediately inconsistent with landscape target of the goals and objectives of the Proposal.  The Organizations believe the inherent conflict of the determination the Proposal may proceed with only a categorical exclusion is immediately apparent when the goals and objectives of the Proposal are compared to existing guidance documents from the BLM on the necessity to prepare an EIS.  This internal BLM guidance documents provide:

“11.8   Major Actions Requiring an EIS.

1. 1. An EIS level analysis should be completed when an action meets either of the two following criteria.

(1)     If the impacts of a proposed action are expected to be significant; or

(2)     In circumstances where a proposed action is directly related to another action(s), and cumulatively the effects of the actions taken together would be significant, even if the effects of the actions taken separately would not be significant,”^[25]

The Organizations submit that the landscape level goal of the Proposal can only be achieved through a significant change in landscape level planning despite the piecemeal and ad hoc method of development for the Proposal.   The lack of factual basis in the BLM position that the Proposal can move forward without an EIS level of analysis is clear when the cumulative impacts of all the separate planning efforts (Renewable Energy, species, recreation) are consolidated. What is being proposed is a landscape change to BLM operations, that in many ways fails to operate within existing statutory authority.

The Organizations also submit that the position of the BLM that only a Categorical Exclusion under NEPA is necessary to undertake a complete review of their planning rule is simply insulting to partners of all types.  It has been the Organizations experience that even small projects or permits, including club rides that occur on existing resources require at least an Environmental Assessment.  Many of the partners are involved in multi-year EA type analysis on a wide range of issues and will be working though the EA process on small projects, like trail reroutes or parking lots,  as BLM planning simply moves forward with a Categorical Exclusion on this landscape effort.  The Organizations submit these differences in NEPA application cannot be overlooked and will do little to foster support or partnership for planning efforts moving forward.

4(b) Meaningful public engagement must be a priority and has been systemically avoided by the Agency.

Public engagement is a critical step in any land management decision making process that should not be overlooked and Proposal twists this concern into something that is blamed on the appeal process.  Public engagement as proposed would be negatively impacted as permitted events would now be lumped into emergency response.   This lack of clarity would create immense conflict around permitted events and emergency response. Meaningful public engagement will reduce this type of unintended impact. Public engagement is necessary to ensure that if an area is closed that other resources are not being directed towards the closures area.  Even within the recreational community, public engagement will ensure that local resources are not being allocated to the same planning area as the resources of a NAC.  Public engagement will also ensure that management partners are aware of efforts and proper alignment of partner efforts can be achieved. If there is a large project that actually  warrants a closure order the State wildlife managers probably should be aware of the closure to avoid the sale of site-specific hunting permits in the location.  This will only create conflict between partner managers if hunting licenses are sold and then hunters find out their licenses have been rendered valueless as access to hunting areas has been lost because managers did not talk to each other.

4(c) Community engagement strategy for BLM conflicts with the Proposal.

The management process outlined in the Proposal, which is significantly reducing community engagement and avoiding NEPA requirements thru expanded emergency authority is directly conflicting with assertions from the BLM that they are seeking to engage with local communities. This vision is clearly laid out in the 2023 BLM Recreation Strategy as follows:

“Vision: By increasing and improving collaboration with community service providers, the BLM will help communities produce greater well-being and socioeconomic health and will deliver outstanding recreation experiences to visitors while sustaining the distinctive character of public lands recreation settings.”[26]

Again, the conflict of these two parallel efforts within the BLM creates significant concern for the Organizations.  The immediate conflict of these two efforts cannot be overstated and the distrust between managers and partners will only be expanded as partners will not believe any assertion of the desire to actually engage with them in the future. Actual engagement with communities is not achieved with mere words.

5. The relationship between Natural Asset Companies and existing partners and management decisions warrants meaningful discussions.

The Organizations must express frustrations with the Proposal, and several related proposals that appear to be laying the foundation for the large-scale leasing of federal public lands to for profit entities. Generally, this model appears to be associated with the operation of Natural Asset Companies (NACs).  This assumption is based on the limited information that the NYSE is providing on this issue at the landscape level and generalized SEC filings regarding this business model. Given the SEC filings and the fact the NYSE is restructuring for this effort, the effort is significant and there has been engagement with federal land managers as part of this effort.

It is highly frustrating that despite all the managers assertions of increased community engagement, the NACs concept of land management has had no meaningful coordinated engagement from anyone. Our representatives have noticed sudden interest in various BLM public meetings from fund managers, investment groups and others type of businesses that simply are not involved with public lands issues. When casual conversations have been attempted with fund managers on their attendance at the meeting, their answers have been evasive and sometimes confrontational.  When questions at these meetings are directed towards land managers on these interests being present at land management meeting, BLM staff has not been able to provide anything akin to a decent answer and some have merely walked away.   This poor engagement and general direction of the management model outlined causes concerns for us immediately.  It is disappointing at best as our partnership with BLM managers has spanned decades and resulted in hundreds of millions of dollars in direct funding to BLM efforts. Despite this partnership, managers will simply not engage with any information of conceptual discussion, despite the fact this could be an idea we would support with a little meaningful engagement on basic questions.

This systemic avoidance of public engagement on what is clearly a major effort has created conflict that may be entirely unnecessary as often our concerns are foundational and start with how would our programs and partnerships be addressed in the NACs model of management. Without basic information we are forced to try and build understanding of the concept based on loosely aligned press articles, SEC filings and information on investment organizations webpages. This is a problem and certainly not a foundation of trust between interests that will be needed to achieve successful implementation of this concept.

The first basic concern we have is with the emergency closure proposal and relationship of the NACs operational model relates to the multiple use mandate. Many of the assertions found on the NYSE page outlining what NACs business model seeks to achieve is immediately problematic for the multiple use mandate. Per the NYSE webpage, a NAC is created to address the following goals and challenges: [27]

“To address the large and complex challenges of climate change and the transition to a more sustainable economy, NYSE and Intrinsic Exchange Group (IEG) are pioneering a new class of listed company based on nature and the benefits that nature provides (termed ecosystem services). NACs will capture the intrinsic and productive value of nature and provide a store of value based on the vital assets that underpin our entire economy and make life on earth possible. Examples of natural assets that could benefit from the NAC structure include natural landscapes such as forests, wetlands and coral reefs, as well as working lands such as farms.”

The summary of the NAC efforts on New York Stock Exchange website continues as follows:

“Intrinsic Exchange Group (IEG) is introducing a new type of company whose equity captures the value of natural assets and the ecosystem services they produce. Natural Asset Companies (NACs) are fundamentally different than traditional companies because they are chartered to protect, restore, and grow the natural assets under their management to foster healthy ecosystems.”

The Organizations are aware that the Securities and Exchange Commission has proposed general outlines for the administration of a NAC type business.  This Proposal may have been the largest and most coordinated effort to outline what a NAC is intended to achieve and how those goals would be achieved and how these goals would relate to other business activities.  As part of this effort, significant opposition to the concept was received by the SEC from what can only be summarized as a diverse range of interests.  As a result of this opposition, the SEC announced the withdrawal of their proposal.[28] While the SEC has withdrawn their proposed regulations for NACs, we believe the NACs effort will continue without the approval of the SEC.   Given the scale of these efforts, we don’t see this change being brief or not impacting federal lands

As we have noted, the BLM is working on several proposals that would be huge steps towards implementing a NACs model of management and BLM engagement can only be summarized as bad.  Many of these BLM Proposals would grant broad new authority to implement management responsibilities in numerous ways from executing leases to authorizing closures. All of this is being done under the guise of streamlining authority for the benefit of recreation.  This is a conclusion we must disagree with. From the motorized recreational perspective, all this model of management does is allow DOI to declare a climate emergency, or ESA emergency or similar remote threat to public safety or resources and then turn over management to third parties that have clearly stated they have no interest in multiple use. These are for profit entities that BLM simply does not have the staff to begin to oversee or manage.  The complete lack of alignment with the goals of the NACs model causes concern for how a recreation project in any form could comply with what NYSE is stating as the goal for these businesses.

As we have noted previously, land manager engagement on these multiple coordinated planning efforts has been poor.  We have many basic questions around leasing of public lands, and would reassert our position that with some guidance and education of our interests the NACs model might be a management model that existing partners could support. We are again asking these questions in the hope of creating some type of meaningful dialog on this effort.  Some preliminary questions on this issue would include:

1. What is the relationship of a NACs effort to the multiple use mandate and more specifically existing multiple use recreational decisions?  Multiple use concepts simply  do not seem to be the priority at all when you have the NYSE stating the mission is to increase capture of natural value and improve environmental, social and corporate governance  (“ESG”) scores for corporations. Candidly recreation is just not reflected in any businesses ESG scores and elevating corporate profitability to this level of use of public lands will be immensely problematic.
2. If there are discussions about the creation of a conservation credit program for partners, we would like to participate. The motorized community has been a partners with Federal land managers for decades.  Our efforts certainly could be the basis of conservation credits. Our concerns, outside protection of multiple uses and avoiding closures, initially would include:
   1. Does conservation include just wildlife or water and soil or air efforts as well?  We are aware that the US Fish and Wildlife Service has a conservation credit program in place already that works on private lands. What is the relationship between these efforts?
   2. How is the process of issuing credits going to be allocated?  It would appear that the decision has already been made that leasing is the mechanism for allocation of credits.  This model to allocation does not work for motorized efforts as a lease implies exclusive possession of the area by the leaseholder. Balancing multiple uses and conservation would be far more achievable if the relationship was based on permit rather than a lease as most permit holder do not have exclusive possession of the area subject to the permit.  Additionally leasing would result in another layer of paperwork to work through for our efforts and a lease like this for recreation would be completely uninsurable from our perspective.
   3. The credit allocation process needs to reflect all partners.  Just in the recreation world, we must believe that state wildlife agencies would want credits for their work. State Wildlife agencies work is foundational to any sustainability effort as they count animals and provide boots on the ground.  Legally most wildlife is under the primary jurisdiction of the state even on federal lands. If we are protecting a species, exact counts of population have always been provided by state wildlife agencies. These NACs credits could reduce the cost burden on the hunting and fishing community for licenses and equipment purchases.  This would be hugely beneficial to these partners as well.
   4. How would the programmatic nature of many efforts, such as state wildlife agencies and OHV/OSV registration programs be reflected and balanced with the project by project nature inherent in a lease?  Allocating credits based on projects might be a stop gap for some projects, like a site specific clean up but much of our effort is programmatic in nature.  Programmatically based credits probably should go back to the state for grant funded projects as most states prohibit grant recipients from profiting from the grants.  Clearly leases don’t align with this type of situation and individual partners will be poorly suited to sell conservation credits. Also the sale of credits will be easier and more efficient if the credits are bundled into groups for sale rather than being sold one by one.
   5. We are assuming that any leases or similar efforts would be subject to public bidding and other requirements like most government contracts? The ramifications of this question are significant in isolation.
   6. How will basic equity, payment of front end costs in developing leases and multiple uses be addressed in management of leases?  Clearly these leases will need archeological surveys, §7 consultations and community engagement before they are ever put out for public bid. IE if an area is leased to a third party but the crews the OHV program funds remain working in the area and many others how would this relationship be determined. Credits should be provided to the person doing the work and not just the lease holder.
   7. How will lease holder performance be monitored?  If a leaseholder closes an area without authority who deals with this?  Currently, BLM has no staff now to deal with unauthorized gates etc making any assertion of agency oversight problematic. For profit lease holders will see to maximize profits from the lease and public access is not going to align with that motivation. The idea of a local club having to sue a wall street leaseholder to reopen trails improperly closed is not appealing to us for many reasons.
   8. How does all the new efforts align with existing efforts and planning?  As outlined in these comments, the emergency authorities under NEPA or Healthy Forest Restoration Acts or similar grants of emergency authority to land managers should not be used for leasing to for profit companies. The implications to goodwill between managers and communities from emergency response efforts must be recognized and addressed.
   9. All this work would need a significant allocation of BLM staff to support NEPA and leaseholder monitoring and many other facets of large projects.   We are concerned this new management model will only exacerbate current staffing shortfalls within the agencies rather than resolve them.  Our programs provide significant funding for staff and NEPA and this funding really does not improve the staffing situation.  Why would a lease holder be any different? District rangers will still need to sign EA or Cat ex, cultural resource inventory will still need to occur, §7 consultation will still be needed, public meeting held for conservation efforts.  This will greatly expand staff demands and this is all going to be needed before a lease is ever signed. This will mean projects we would like to move will simply fall further down the list of priorities.
   10. These credits appear to be valuable and if we can obtain credits for the state OHV programs, our desire would be to resell the credit and then directly reinvest the proceeds in the program to support more work on the ground almost immediately.  The issuance of credits to NACs would provide profits to shareholders and that funding would probably have a much longer route back to reinvestment.
   11. How will any improvements be maintained in the long run once the lease has run out?  Leaseholder will have no reason to continue maintenance.

While we are aware that many of these questions are outside the scope of this Proposal when it is viewed in isolation, many of these concerns would be immediately if the relationship of NACs to federal lands was handled in a more coordinated and cohesive manner. As a result,  we are again asking these questions again in the hope of triggering meaningful public engagement.

6. Conclusions.

The above Organizations must vigorously oppose the proposed expansion of authority to issue temporary closures and restriction orders on lands managed by the BLM provided in the Proposal. The Proposal spans a mere five pages of the Federal Register and provides random unsupported assertions combining wildly disparate situations in an attempt to support the Proposal.  The Proposal asserts to be creating new management authority despite BLM having been provided this authority for decades. The Proposal then addresses unusual concerns around how this existing authority would be applied, such as asserting there are significant appeals of emergency closures currently. This is problematic for many reasons.

Our Opposition to the Proposal compounds when the Proposal then attempts to provide new basis for closures, based on concepts such as “implementation of management responsibilities” for unspecified periods of time. No discussion of what this term means or how it could be applied under existing regulations is provided at all. The Proposal also appears to create the possibility that emergency closures could span decades by allowing closure orders to exist until Resource Management Plans can be updated.

The Proposal is highly frustrating to existing partners as it appears to merely another step in the opening of BLM to large scale leasing of federal public lands to Natural Asset Companies without public engagement in any phase of this discussion.  The Proposal is clearly seeking to allow emergency closure orders to be issued in circumstances where there is little proximate and significant risk to the public simply to avoid NEPA analysis of leasing efforts. It is highly frustrating the Proposal seeks to apply provisions created for effective and efficient manager response to true on the ground emergencies in a manner that was never intended when this authority was created. We believe this effort will ultimately be unsuccessful and could actually result in significant negative impacts to resources. The use of emergency response provisions in this manner will create significant erosion of support for these provisions and expand distrust of the public in any action the agency takes.

The Organizations and our partners remain committed to providing high quality recreational resources on federal public lands while protecting resources and would welcome discussions on how to further these goals and objectives with new tools and resources. If you have questions, please feel free to contact Scott Jones, Esq. (518-281-5810 / scott.jones46@yahoo.com) or Fred Wiley (661-805-1393/ fwiley@orba.biz).

Scott Jones, Esq.
CSA Executive Director
COHVCO Authorized Representative

Chad Hixon
Executive Director
Trails Preservation Alliance

Marcus Trusty
President – CORE

Sandra Mitchell
Executive Director – IRC
Authorized Representative – ISSA

Clif Koontz
Executive Director
Ride with Respect

Matthew Giltner
Executive Director
Nevada Offroad Association

[1] Welcome to the Off-Highway Motor Vehicle Recreation (OHMVR) Division’s Grant Programs (ca.gov)

[2] Colorado summer program is outlined here https://cpw.state.co.us/Documents/Trails/OHVGrantProgramAwards.pdf Colorado winter program is outlined here.

[3] A summary of video of these efforts to date is provided here: OHV Final on Vimeo

[4] See, Dept of Interior, Bureau of Land Management, Temporary Closure and Restriction Orders; Proposed Rule; Federal Register / Vol. 88, No. 223 / Tuesday, November 21, 2023 / at pg. 81023(hereinafter referred to as the ”Proposal listing”

[5] See, Generally 43 CFR Part 9210.

[6] See, 43 CFR §9212.2

[7] See, 43 CFR §4.1a

[8] See, Proposal Listing at pg. 81024

[9] 43 CFR §9212.3

[10] See, Proposal listing at pg. 81022

[11] See, 43 USC §1742

[12] See, 43 USC §1469

[13] See, 43 USC 1748(a)(PL 111-88)

[14] See, Proposal listing at pg. 81025

[15] 40 CFR §1508.25(a)

[16] Klamath Siskiyou Wildlands Center v. Broody, 468 F.3d 549 (9^th Circuit 2006)

[17] See, Proposal listing at pg. 81025

[18] Emergency Definition & Meaning – Merriam-Webster accessed 1/16/24

[19]fws.gov/sites/default/files/documents/ESA-Public-Petition-Guidance.pdf

[20] See, Weyerhaeuser v. US Fish and Wildlife Service; 586 US ___(2018) pg. 9.

[21] Notice of Withdrawal of Proposed Rule Change to Amend the NYSE Listed Company Manual to Adopt Listing Standards for Natural Asset Companies (sec.gov)

[22] See, Proposal at pg. 19588

[23] See, Proposal at pg. 19585

[24] See, Proposal at pg. 81027

[25] www.blm.gov/wo/st/en/prog/planning/nepa/webguide/departmental_manual/516_dm_chapter_11.html#11-8

[26] See, DOI; Bureau of Land Management; connecting with communities – BLM National Recreation Strategy- 2023 at pg. 2. A complete copy of this document is available here: blm.gov/sites/default/files/docs/2023-08/Blueprint for 21st Century Outdoor Recreation508.pdf

[27] See, Natural Asset Companies (NACs) | NYSE  This website was accessed January 15, 2024.

[28] Notice of Withdrawal of Proposed Rule Change to Amend the NYSE Listed Company Manual to Adopt Listing Standards for Natural Asset Companies (sec.gov)

Three Peaks Travel Management Environmental Assessment

Dear Planning Team Members:

Please accept this correspondence as input on the Three Peaks Travel Management Environmental Assessment. Our Organizations have been involved in stewardship, volunteerism, education, and motorized advocacy within the Royal George Field Office (RGFO) for many years.

I. Who We Are

Before addressing our specific comments, we believe a summary of each Organization is needed. 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 to protect and promote 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 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 advocates 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 Offroad Enterprise (CORE) is a motorized action group dedicated to keeping motorized trails open in Central Colorado and the region. CORE has 15 adopted trails spread throughout the Salida, Gunnison, and Leadville Districts and has accumulated several thousand volunteer hours for the BLM and Forest Service over the past few years.

II. Discussion

We are thankful for the opportunity to submit comments on this proposal considering the designated travel network. We advocate for and recommend Alternative C, which includes the most public access available for all uses being considered. Alternative C meets the Purpose and Need of this project by considering and managing potential impacts while still allowing much of the existing public access to be maintained. We recommend constructing route SP2215 to enable public access near Jackson Hull Mountain. We recommend escalating levels of management, which Alternative C provides while still allowing reasonable public access.

III. Alternatives

The Purpose and Need of this project are simple in that the desire is to create a designated route network where one has not been established beyond restricting travel to existing routes. This stated need has arrived from staff and public observations for managing travel to protect resources. Generally, we do not oppose seasonal closures for motorized use as proposed in Alternative C or Alternative D. There is no noticeable difference in managing adverse impacts from the preferred Alternative D and the ‘Motorized’ Alternative C. However, Alternative D restricts public access much more than Alternative C.

Issue Statement #1 of this proposal would not change the eligibility (+5,000 acres) for Lands with Wilderness Characteristics (LWC), and this proposal deals solely with Travel Management Designations of existing routes, so there is no substantial or negative effect. Additionally, the RGFO proposed updated Resource Management Plan ¹ states in section 3.1.13, page 3-22:

No existing law or policy grants priority to preservation of lands with wilderness characteristics over other resources or resource uses, so BLM has the discretion to determine management of these areas in consideration of other priorities.

Because the routes already exist in these two regions and the ground is already disturbed due to the presence of these routes, they should remain open to public access and not be closed to prioritize LWC. Routes within the project area can also be used by the public to access the LWC for quiet recreation.

Issue Statement #2 of this proposal states this:

This alternative would exhibit the greatest impact to vegetation resources, but not to the level as in the current situation. Alternative C installs management and controls route proliferation and thereby should help most areas achieve Standards for Public Land Health in the long-term.

When considering the reasonably foreseeable trends in the analysis area and the current situation, changes under Alternative C could result in improvements in land health and greater plant community resistance when compared to the No Action Alternative. The cumulative effects associated with this alternative are likely to have a beneficial impact to vegetation resources across the larger area as a whole.

Alternative C is a viable option to mitigate vegetation loss because of the route designations, signage, and management that will take place once a decision is reached. This option should be the first level of management prescribed instead of route closure.

Issue Statement #3 of this proposal acknowledges the most opportunities for the most public land visitors to this area. Quite users will still have numerous options for hiking and other forms of activity with only 21 miles of designated routes in Alternative C, especially considering the two LWC areas that encompass well over 5,000 acres each within the project area and by maintaining the existing public access to those two areas.

Issue Statement #4 of this proposal deals with potential dispersed camping and potential range management conflicts. If these issues were to be realized, the RGFO could implement designated dispersed camping as it has in other areas of the RGFO to mitigate camping-based conflicts.

Issue Statement #5 of this proposal for Alternative C contains contradictory language:

Alternative C establishes a designated route network for all inventoried routes in the analysis area. Under this alternative, 21.8 miles remain open, 2.1 miles are open with seasonal restrictions and 12.5 miles closed or limited to administrative use only. In addition, .3 miles of new road construction would occur under this alternative. Like Alternative D, this alternative establishes a designated route network for all inventoried routes based on Management Strategies that would minimize impacts to forest resources and includes management that inhibits the potential for disturbance through route proliferation. However, fewer miles of existing roads are closed, and this increased route availability would allow for greater access to legal wood product harvesting. The cumulative effects of Alternative C is likely to have a negative impact on forest resources.

 This statement contains no negative impacts for Alternative C until the last sentence, which arbitrarily claims, “The cumulative effects of Alternative C is likely to have a negative impact on forest resources,” despite the entire paragraph preceding that statement detailing the exact opposite likely outcome including establishing a designated route network minimizes impacts to forest resources and inhibits the potential for route proliferation, which would allow greater access to legal wood product harvesting. Alternative C should be chosen to enable initial route designation management to address issues while allowing public access.

Issue Statement #6 of this proposal has a separate discussion item (IV.) in these comments.

Issue Statement #7 of this proposal contains no on-ground examples of negative impacts in the planning area or for Alternative C. The proposal only cites hypothetical ‘potential impacts‘ as a justification for the closure of route SP3206.

Alternative C largely mirrors the same impacts as Alternative A. The major difference is that Alternative C limits 11.3 miles of routes to Administrative Use only. Cumulatively, this decrease in public motor vehicle traffic could have beneficial impacts to wetlands health, road conditions, and decrease the sediment/contaminant/ invasive species loading into water bodies. Also, Alternative C would close route SP3206, an area of with a myriad of potential impacts on water resources.

Nothing specific in this section suggests Alternative D as a better option for the public when compared to Alternative C. We would also ask the RGFO, how are you measuring and quantifying the production and transport of sediment into water bodies? Additionally, is sedimentation above an acceptable level? This seems to be a very subjective opinion and perhaps observation based upon casual surveys by staff.

Issue Statement #8 of this proposal concerning soil and erosion: if Alternative C were chosen for this proposal, it would manage potential issues.

Alternative C largely mirrors the same impacts as Alternative A. The major difference is that Alternative C limits 11.3 miles of routes to Administrative Use only. Cumulatively, this decrease in public motor vehicle traffic could be beneficial for mitigating the soil resources impacts on the route itself and potential, sediment and contaminant transport from runoff. Most notably, Alternative C limits route SP 1054 to Administrative Use Only, while Alternative B designates the route as closed. While this is a route with potential impacts to soil resources, crossing cobbly loams at moderately high grades, limited the public motorized access should be sufficient in mitigating soil resource impacts at this location.

The rationale suggests that Alternative C can mitigate potential soil resource impacts, and should issues occur in the future, the RGFO could certainly escalate management to address future problems should they rise to a problematic level. Technical solutions specific to erosion control could be implemented as a management prescription, if necessary, in the project area. Erosion and sedimentation are natural processes often needed to maintain a balanced hydraulic system. All erosion and sediment transport are not necessarily a problem, harmful, or a threat to natural systems. Many natural ecosystems/wetlands need and require sediment and the movement of sediment to remain healthy and in balance. How much sediment in the project area is too much, and how is this determined? Simply claiming erosion and sediment transport as a negative potential is insufficient to remove public access from public routes. These potential issues should be shown to be present on the ground, above problematic thresholds, and beyond the use of technical solutions to control and mitigate adverse sediment production generated by roads, trails, or parking areas before restricting public access.

The issue statements also contain no substance beyond speculation and no substantial impacts to LWC to prioritize Alternative D over Alternative C in this proposal. Alternative C addresses all the current potential concerns while still allowing public access to continue. Should issues arise, the RGFO can still implement further management prescriptions to address hypothetical problems. We recommend Alternative C to accomplish the Purpose and Need of this project while still balancing public access.

IV. Doomsday Scenarios

We are concerned with the language contained in Issue Statement #6. This language implies the RGFO is considering a doomsday scenario or worst case possible as a wildlife justification. It states Alternative C is not much better than the No Action Alternative for wildlife sustainability:

This alternative is second only to the No Action alternative regarding negative impacts to big game priority habitats. The potential will be high for human disturbance on elk, mule deer, pronghorn, and bighorn sheep during their most sensitive periods. As discussed in section 5.6.1 this can lead to reduced winter survival and reproductive success, with potential for broad-scale impacts.

The No Action Alternative section referenced in Alternative C contains this language:

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, decline and stagnated growth of big game populations could occur. It is important to consider that declines in the previously mentioned population parameters (i.e. survival, reproduction, recruitment) can take years to cause population-level declines that can be detected with herd surveys. Further, since the effects of human disturbance compound other negative factors, and the effects of all those factors are complex, the effects will likely not be linear. For example, the effects of increased human disturbance in elk severe winter range may not be exhibited at a population scale until they coincide with a severe winter and cause extraordinarily high winter die-off in a herd. Thus, a stable big game population that has experienced increased recreation within priority habitats for a small number of years cannot be considered evidence of a lack of negative effects of human disturbance.

 The chosen hypothetical RGFO included in this proposal is an attempt to steer the decision towards Alternative D. Worst Case hypothetical scenarios for wildlife populations are not part of a NEPA review, and the courts have consistently rejected these arguments. The Supreme Court’s ruling on Roberson v. Methow Valley Citizens Council ² stated:

‘In sum, we conclude that NEPA does not require a fully developed plan detailing what steps will be taken to mitigate adverse environmental impacts and does not require a “worst case analysis.”‘

Additionally, the recent DC Court of Appeals ruling for Maine Lobstermen’s Association v. State of Main Department of Marine Resources ³ stated:

‘In this case, we decided whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the “benefit of the doubt” to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not. The ESA and the implementing regulations call for an empirical judgment about what is “likely”. The Service’s role as an expert is undermined, not furthered, when it distorts that scientific judgement by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.’ 

A review of the herd management plans that overlap with the project area does not justify this worst-case scenario as a likely reality. The plans all mention, or list, recreation as a concern and one that should be considered by Land Management Agencies when making decisions, but nothing documented in the herd plan rises to the level of stating that continued recreation will lead to a population level decline due to cumulative recreation in the big game herds within the project area. The highest recorded documented impact for the E-22 Elk Herd ⁴ was for a locoweed impact resulting in locoism that killed 200 elk in summer. This impact was attributed to low moisture for that year and had no connection to recreation. Still, the E-22 Elk Plan has been above the management objective number since 1990, and that plan states explicitly:

Those population objectives are considered to be the most reasonable goal for this herd based on the quantity and quality of available habitat for elk, the recreational, economic and political desires of the people of the state, the level of conflicts between the elk herd and agricultural producers in the area, and the comments of land management agencies.

 Adding a seasonal close to all routes within the project area deemed to be sensitive areas can accomplish the Purpose and Need of this project, provide protections to wildlife, and still allow public access.

The Mule Deer plan referenced in section 5.6.1 of the proposal leaves out some specific details and data in that document.

Recently completed Herd Management Plans for local bighorn sheep and mule deer herds point to increasing recreation and development as primary threats to those populations (Grigg 2020, Deschenes and Lamont 2022).

This section is worded to suggest that recreation is a landscape-level threat to the Mule Deer population in D-16 and is on par with the loss of habitat due to development. The Herd management plan for D-16 ⁵ does not state this implied fact and clearly outlines the most significant threat in the management plan is cougar predation.

Since 1999, we have radio collared 1,086 adult does and 898 fawns in D-16 to examine annual adult survival and winter fawn mortality. From 1999-present, averaging across all years, the leading known cause of both doe (6.4%) and fawn (7.5%) mortality has been cougar predation. Cougar predation has ranged from 0 to 60% (avg. 28%) of the total mortality for does and 0 to 64% (avg. 32%) of the total mortality for fawns. However, it is not known if cougar predation is limiting population growth in D-16, or if this population is experiencing density-dependence due to habitat limitations.

The D-16 Mule Deer Management Plan states multiple times that this population may be habitat- limited, which might also account for the numbers. The Management Plan does list recreation as a concern and under the significant issues. Still, it does not mention recommendation specifics for recreation except to work with management agencies to balance wildlife needs with recreation.

The RBS-9 Big Horn Management Plan ⁶ contains conflicting statements about the herd size, objectives, issues, and recreation. The beginning of the plan states:

The current population estimate in RBS-9 is stable at approximately animals. Key limiting factors for this population include the potential for disease outbreaks. Considering bighorn distribution, winter range capability, population density/density dependence, and the potential risk of contact with domestic livestock, our Wildlife Commission approved management objective is: Population target 375 bighorns (range 350-400)

 The plan then states:

Strategies for obtaining objectives and addressing issues: Both preferred alternatives are consistent with CPW’s current management in RBS-9. Therefore, CPW does not expect a change in harvest management with this plan. The most significant issues for RBS-9 are limited winter range and the potential for disease transmission from domestic livestock, particularly from domestic sheep and goats (George et al. 2009). There are currently no active domestic sheep summer grazing allotments in this DAU, however, there are hobby livestock operations that provide a continual threat of disease transmission. CPW will continue to work with stakeholders and land management agencies to mitigate and address these issues.

 Referencing recreation, the plan states:

The RBS-9 herd has become especially impacted by an increase in dispersed camping, mountain biking, and hiking. In general, recreation has increased significantly over the last 10 years in the RBS-9 area.

 The plan also references mountain biking and river activities because the plan area encompasses the Arkansas River Recreation Area. The herd numbers, however, have stayed consistent for the last 38 years. This would suggest two things. First, the growing level of recreation has not yet harmed herd numbers. Second, utilizing seasonal closures on motorized routes during sensitive times would certainly address future concerns from motorized recreation. The Alternative D justification in this proposal reinforces this suggestion:

Timing restrictions are used as the primary tool for protecting big game priority habitats under this alternative because they reduce human disturbance during the most sensitive periods, while still allowing motorized access at other times of the year.

Why could Alternative C not provide this same benefit to wildlife if timing restrictions were used instead of outright route closure? After carefully reviewing the herd plans and the justification provided by the RGFO, we recommend Alternative C be adopted with seasonal closures to balance public access with wildlife concerns. We disagree with the doomsday scenario proposed and do not support the justification and management prescription in Alternative D to avoid such a, worst-case, hypothetical situation.

We would also like to point out the changed condition on the ground in Colorado as of December 18, 2023. CPW reintroduced Grey Wolves in Grand County. This event may seem far from the project area, but CPW has said they plan on releasing 30-50 wolves to begin the ‘sustainable population’ required by Prop 114. A reintroduction area along Hwy 50 in Gunnison County is contained in the Reintroduction Plan ⁷. There is one county removed (Chaffee) from the project area in Fremont County, and considering the mileage wolves travel, it seems only a matter of time before wolf activity is detected in Fremont County and the project area. The CPW Wolf Reintroduction plan has this information:

“Within Colorado, preliminary release locations are constrained by several geographic criteria. State statute requires that wolves be released only west of the Continental Divide (CRS 33-2-105.8). Fritts et al., (2001) found that wolves released in Yellowstone and central Idaho moved substantial distances in the months immediately after release (average distance was approximately 50 miles ranging from approximately 22 to 140 miles from the release sites).”

Wolves can be expected in and around Freemont County in the future. This reintroduction will affect Elk, Mule Deer, and Big Horn Sheep behaviors, survival rates, and herd numbers. This proposal does not address this changed condition and assumes wildlife numbers will remain constant if recreation is limited in the project area. This assumption is a significant flaw in this proposal and should be considered during this planning process.

Wolves in Colorado will alter the big game landscape by changing animal and herd behavior beyond what is accounted for in the herd plans, migration corridors, winter range, and population estimates. Some research, contradictory to this proposal, suggests that ungulates will seek out human areas to escape predation. Bacon and Boyce 2016 ⁸ suggest Big Game Animals (Ungulates) will flee wildlife protection areas when a large new predator is reintroduced into an area.

The Study Introduction contains this information:

“Historically, large predators in North America were perceived as competition for food and a risk to the safety of settlers and their livestock (Kellert et al. 1996). Predators were heavily hunted, trapped and poisoned to the point where species such as the cougar (Puma concolor), wolf (Canis lupus), and grizzly bear (Ursus arctos) were extirpated from much of their original range (Berger 1998; Terborgh et al. 2000). In the absence of predators, ungulates and other wildlife minimize their risk of human encounters by avoiding areas used for agriculture and recreation (Cuiti et al. 2012). Our activities, however, also can alter hidden interactions that exist within an ecosystem, sometimes to the point of disassembling entire natural communities (Hebblewhite et al. 2005; Ripple et al. 2014).”

 “Indirect effects that predators have on other ecosystem components merit careful attention because they can have implications for the way that human-wildlife conflicts might re- ignite.”

 The Discussion Section Contains this information:

“The shift in distribution of cervids, particularly mule deer, during the decade of cougar re-establishment demonstrates that cougars have restored a landscape of fear in the Cypress Hills, causing prey to leave the security of the protected park and forest cover that now harbors a highly effective predator. During the period of our study, radiotelemetry data for Cougars showed that the predator remained primarily within the confines of the protected forest (Figure 1). Analysis of aerial ungulate surveys showed that deer and elk shifted their distribution outside the Park during the same time period, when cougar presence was the only significant change in the region.”

“Prey that had lived with little fear of large predators for ca. 40-50 generations must now trade-off between avoiding humans and avoiding predators. Indeed, in some instances, humans might act as a shield against cougar predation because they present less risk of mortality for prey (Berger 2007) and because cougars are deterred from human-dominated areas (Morrison et al. 2014).”

This study mentions Wolves but directly looks at Cougars as the large predator reintroduction study species. Indeed, the Colorado Wolf Reintroduction will have similar results for this state’s Elk and Deer populations. The Yellowstone Wolf Reintroduction documents state that a single Wolf kills about 2 Elk per Wolf per month to sustain itself over a calendar year encompassing all four seasons. That will drive Elk and Deer numbers down in Colorado, and we don’t yet know how our big game animals will react to a reintroduced large predator.

Will they stay in the protected areas (this proposal) we set up for them, or will they move towards human activities to escape the reintroduced large predators? If Wolves are released close to Chaffee County or eventually make it to Fremont County, no pre-release wildlife protection and big game planning will be valid after reintroduction. This changed condition should not preclude public access to the project area to maintain a pre-wolf environment and pre-wolf objectives.

Alternative C with this changed condition, it is still the best management option to include seasonal closures while maintaining public access. The RGFO will then still need to be vigilant and monitor wolf expansion and movement to track the changes to big game herds and numbers that will result. Ironically, this research may also paint a different picture relative to the cougar predation problems documented in D-16. It is entirely possible that human activity and development are preventing further population-level declines by cougars for Mule Deer.

V. Escalating Management

Our organizations generally favor escalating management to mitigate existing and hypothetical future issues. This allows the RGFO to take steps at managing impacts while also testing management prescriptions without implementing more restrictive measures that may not be needed. More restrictions could be implemented, but we recommend reserving those options when lesser implementation fails with documentation. The Preferred Alternative D in this proposal adopts route closures that may not be needed to accomplish the Purpose and Need. If seasonal closures are implemented as proposed, closing more routes to public access beyond that of seasonal closures for wildlife concerns is more restrictive than needed in this proposal.

The court held standard for management decisions based on wildlife concerns has shown to be what is ‘likely‘ to occur. It is more likely that implementing minimal management prescriptions to increase the level of management (this proposal) above currently restricting travel to existing routes and by designating a public route system, wildlife population numbers will continue to align with the management objectives and the specifics outlined in the Herd Management Plans. Wolve reintroduction is an unknown, but it is also likely that negative impacts on a population level scale will result in ungulates due to wolf predation. Once this likely scenario occurs, human activity may contribute to ungulate survival.

Implementing escalating management is our recommendation, and we support Alternative C with the construction of route SP2215 and the re-evaluation of SP3206. Further restrictions should not be considered until negative impacts are documented on the ground and beyond acceptable levels.

VI. Recommendation

We thoroughly recommend Alternative C with the construction of SP2215 and the re-evaluation of SP3206 to allow public access to Jackson Hull Mountain and its vicinity. Alternative C does not pose management challenges beyond Alternative D. The same management strategies included in this proposal can be implemented while keeping 20 miles of public routes open. Public access and wildlife can coexist, and doomsday scenarios should not be used as an evaluation tool in a proposal that could permanently remove public access. Escalating management is a successful strategy, and route closure should be the end of that spectrum when all other management prescription options have been utilized and exhausted. Wolves in Colorado will pose new management problems for wildlife population numbers, and wildlife could look to human activity as a protective mechanism in contrast to human avoidance at all costs, as presented in this proposal.

We are generally disappointed in the direction of this proposal when compared to meeting the needs of public access, dispersed camping, and all the additional recreational experiences that take place on public roads that are difficult to quantify fully. This proposal acknowledges the public’s growing desire to experience public land via public access and the desire to engage in multi-day adventures by incorporating dispersed camping. However, this proposal does not analyze a single alternative that could expand public access opportunities and does nothing to address and satisfy the desire for dispersed camping. This proposal discusses hypothetical negative impacts of the public being allowed to recreate in the project area and discusses hypothetical dispersed camping impacts and dispersed camping conflicts but does nothing to propose a new public route with designated dispersed campsites to help fulfill this public desire. Aside from Alternative A being the control variable to measure proposed Alternatives against, nothing discussed in this proposal might help meet public needs besides closing routes to the public or restricting areas. This fundamental flaw assumes that the only reasonable management strategies to apply in the future require restriction and closure. This pathway can’t help but prejudice a project outcome by assuming public use on public land is a net negative. Closure should not be used as a management prescription until alternative options are exhausted. We recommend against unnecessary restriction and recommend Alternative C with additional route construction be chosen as the only viable Alternative contained within this proposal.

Marcus Trusty
CORE President

Scott Jones
COHVCO Authorized Signer

Chad Hixon
TPA Executive Director

¹ Proposed Eastern Colorado Resource Management Plan & Environmental Impact Statement – Volume 1: Executive Summary and Chapters 1-5, Royal Gorge Field Office, 2023.

² Robertson, Chief of the Forest Service ET AL. v. Methow Valley Citizens Council ET AL., 1989

³ United States Court of Appeals for the District of Columbia Circuit. Maine Lobstermen’s Association, State of Maine Department of Marine Resources, ET AL. v. National Marine Fisheries Service, ET AL., 2023.

⁴ Buffalo Peaks Elk Management Plan Extension, Data Analysis Unit E-22, Jamin Grigg, 2018.

⁵ Cripple Creek Deer Herd Management Plan Extension, Data Analysis Unit D-16, Jamin Grigg, 2020.

⁶ Arkansas River Bighorn Sheep Herd Management Plan, Data Analysis Unit RBS-9, Bryan Lamont and Kyle Deschenes, 2023.

⁷ Colorado Parks & Wildlife, Colorado Wolf Restoration and Management Plan, 2022.

⁸ Landscape of Fear for Naive Prey: Ungulates Flee Protected Area to Avoid a Re-established Predator, Michelle Bacon and Mark Boyce, 2016

Reprinted with permission
Ride With Respect Year in Review 2023
www.ridewithrespect.org

2023 was another eventful year for Ride with Respect (RwR). While continuing to promote responsible recreation practices and assist effective management, we stepped up our protection of access by off-highway vehicles (OHVs). In Labyrinth Rims, the recent closure of 317 miles of routes included several that RwR has spent hundreds of hours improving, and now we’re challenging these closures at great expense. If you haven’t already made a tax-deductible donation in 2023, there’s still time to do so, and to encourage donations from others who enjoy OHV riding in Moab and elsewhere in Utah. Just send a check to Ride with Respect (395 McGill Ave, Moab, UT 84532) and indicate if you’d like the receipt to be in 2023.

We appreciate the monetary donations and volunteer time from many people who care about the trails and their surroundings. Thanks to the following for contributing over a thousand dollars this past year:

1. Utah Division of Outdoor Recreation
2. Rocky Mountain ATV/MC
3. Trails Preservation Alliance (TPA)
4. Peter Lawson
5. Balance Resources
6. Grand County Recreation Special Service District
7. KMAC Corporation
8. Moab Friends For Wheelin’
9. Anonymous
10. John Borg
11. Rob Stickler
12. Timberline Trailriders
13. Bonneville Equipment Company
14. Xtreme 4×4 Tours
15. Dave McEuen, CPA for HEB Business Solutions

Trail Work

This past year, in conjunction with state and federal land managers, RwR spent another couple-hundred hours preparing for and performing trail maintenance. For example we built a trailer to haul several-thousand pounds on 4WD roads. The maintenance itself included clearing brush from the Upper Twomile trail system, blocking braids of Sovereign Trail, and repainting the blazes at Dubinky (see photos). Trail work is a key ingredient to keep trails fun, sustainable, and legally accessible, especially as use levels increase. There’s much more to do next year, and we encourage anyone who enjoys Moab trails to contact RwR, as we can surely find a few hours that you’re available to pitch in.

Education

Especially in the canyon country, it’s truly crucial to “tread lightly,” which is as simple as staying precisely on the trail and slowing down upon encounters with people or other animals, not to mention running a relatively quiet muffler. Most of RwR’s education this past year involved partnering with other entities. I was proud to help NOHVCC bring its annual conference to Utah, which was a great opportunity to showcase this state while learning from all the other states that were represented. At the Utah Outdoor Recreation Summit, I joined a panel presentation to discuss the state’s required adult OHV education course. On a volunteer basis, I also attended the BLM’s Utah RAC meetings and field trips, the Big Ride that convenes Utah’s OHV clubs, the Utah Off-Roaders Alliance meetings along with SLOREX, and American Motorcyclist Association board meetings along with the AIMExpo and AMA Motorcycle Hall Of Fame Induction Ceremony. Finally I continued assisting the Utah Division of Outdoor Recreation to refine its incredible grant programs, all of which are eligible for projects on motorized trails, as described in this grant workshop.

Motorized Trails Committee

Since 2019, I have chaired Grand County’s Motorized Trails Committee (MTC), which is comprised of dedicated OHV enthusiasts along with land managers and county staff. In 2023, the enthusiasts volunteered another few-hundred hours of trail work, and they offered valuable guidance about many aspects of management. They helped the county secure a state OHV grant that will fund $256,531 for a Motorized Trail Ambassador program, while the county will contribute $90,996, with both entities providing expertise in education. The county has hired ambassadors with a strong background in OHVs, and it has been responsive to the MTC’s feedback on the development of educational materials thus far. It’s encouraging to see the state’s investment, the county staff’s commitment to working with OHV enthusiasts, and especially the enthusiasts themselves for volunteering on the trails and in meetings every month.

Moab Camping Management Plans (CMPs)

In 2022 the BLM drafted CMPs in three areas to require that dispersed camping be done in designated sites. As RwR explained in our 2022 YIR, we partnered with the TPA, COHVCO, and CORE to ensure thorough planning so that valuable campsites are not short-changed. In 2023 the BLM released an updated draft CMP for the Labyrinth Rims / Gemini Bridges Area that showed its inventory of sites just as we requested, so RwR and its partners submitted additional comments urging the agency to go another few steps in improving the process.

In July the BLM released a final plan that acknowledged additional campsites inventoried primarily by BRC. It also affirmed that, to access campsites, routes could be added to the travel management plan (TMP) in future. Of course the existing access routes shouldn’t have been closed by the 2023 TMP in the first place because the value of the campsites wasn’t analyzed by the 2023 TMP nor the 2023 CMP, so route closure was premature. Nevertheless, in the context of the CMP, acknowledging the potential to add access routes is helpful.

Most importantly, the CMP committed to do subsequent Environmental Assessments before actually limiting camping to designated sites so the public can review and comment on the BLM’s proposal for each site. The BLM made this commitment for Labyrinth Rims / Gemini Bridges, and not for Utah Rims or Two Rivers, but we hope the BLM sees the value in providing for site-specific public review and comment for all three areas. Groups seeking to vastly expand the designation of wilderness (which prohibits mechanized use including chainsaws and hand carts) actually discouraged additional public participation, so we appreciate the BLM for taking many of our suggestions, and look forward to the next steps in managing dispersed camping.

Labyrinth Rims / Gemini Bridges TMP

This past year, RwR has continued to partner with the TPA, COHVCO, and CORE in the Labyrinth Rims / Gemini Bridges TMP, currently appealing the BLM’s decision to close 317 miles of route, many of which have great recreational value and no significant impact upon natural or cultural resources. As RwR explained in our 2022 YIR, we have contributed several-thousand hours implementing and refining the 2008 TMP that closed half of the existing routes, including construction of a couple dozen reroutes away from sensitive resources. In a few cases, this work and our 2022 comments convinced the BLM not to close routes that were targeted by Alternative C (which appeared to be the agency’s preferred alternative), such as Brian’s Trail and the Enduro Loop below Big Drop.

However overall the BLM’s 2023 TMP decision is closest to Alternative B, the one that Grand County had convinced the BLM to make far more restrictive than what the agency had originally planned. To name a few, the 2023 TMP closes the Dead Cow motorcycle loop, parts of several Easter Jeep Safari routes including all of Hey Joe, virtually all motorized routes in Labyrinth Canyon and its tributaries other than graded roads, and most Labyrinth Canyon overlooks despite being hundreds of feet above the river. Some of the closures weren’t proposed or analyzed by any of the alternatives, which is one just one aspect of the 2023 TMP that contradicts existing policy.

If you’re wondering why the BLM would close so many routes on such tenuous grounds, it may be useful to know that the Moab Field Office drafted a more reasonable decision a half-year earlier. It got held up at higher levels, and the obvious conclusion is that administrative appointees dictated many more closures, leaving the Moab Field Office scrambling to rationalize this decision. Nationwide the BLM and USFS were designed to be decentralized so they could better understand the local land, uses, and communities. They were also designed to professionalize land management to effectively implement FLPMA and NFMA as congress directed. Yet, in RwR’s twenty-two years of experience, the agencies have become increasingly politicized by the executive branch, leaving local knowledge and managerial expertise in its wake. This trend has greatly accelerated under the current administration, which ultimately does no service for the integrity of the agencies or the pursuit of their missions, and which inadvertently bolsters the case for transferring the management from federal to state agencies.

Presumably the solution involves all three branches of government but, in Labyrinth Rims, the immediate work is to challenge the 2023 TMP. Along with RwR and its partners, the 2023 TMP has been challenged by the State of Utah, BRC et al., and ORBA et al. The approaches differ, such as exhausting an administrative appeal or going to federal court, which provides diversity in the common effort. Plus each group brings different skills, such as RwR’s twenty-two-year history of assisting managers in Labyrinth Rims, as exhibited in our petition for a stay of the closures while the IBLA reviews our appeal.

As is typical of the IBLA, our petition for a stay was denied, denying that RwR and its partners would be irreversibly harmed by closing the routes while the appeal is reviewed. Further the BLM argued that many other routes remain open, yet many of those routes are graded roads that don’t provide a trail-like experience, or they no longer connect for looping opportunities, or they provide no substitute for the quality of experience that could be enjoyed on primitive routes in unique settings like Labyrinth Canyon and its tributaries.

Our petition merely previews our challenge of the 2023 TMP, itself, yet it already demonstrates the solid merit of our case. If you’d like more details about the 2023 TMP and its broader context, check out this audio update from CORE.

To maintain public access, all groups challenging the 2023 TMP are consistent, yet each one is providing unique value that warrants your support. If you care about motorized trails between Moab and Green River, support national groups like BRC, statewide groups like TPA, and local groups like RwR. RwR depends on the support of Moab trail enthusiasts who visit from all over the world, and we need it now more than ever.

Ashley National Forest Land Management Plan (LMP)

This past year, the Ashley National Forest released its Proposed LMP that establishes the guardrails for travel management planning over the coming decades. As RwR explained in our 2022 YIR, the Draft LMP went too far in effectively making half the forest off-limits for recreation planners to even consider adding a motorized route. Adding routes is already unlikely to survive the NEPA process of an Environmental Assessment, so planners need a wider area to start with, and there’s no compelling reason for the agency to eliminate half the acreage at the outset.

This year, when the Proposed LMP didn’t significantly improve the previous draft, RwR / TPA / COHVCO objected and attended the agency’s “resolution” meeting. Unfortunately the agency dismissed our objection since the Proposed LMP actually increases the acreage to be zoned as motorized (specifically a motorized class of the Recreation Opportunity Spectrum (ROS)). First of all, an increase of 1% is insignificant. Second, the current LMP and its resulting TMP fail to meet the current needs of motorized recreationists ranging from e-bike riders to campers, so the status quo is inadequate. Third, nothing in the current LMP from 1986 makes the non-motorized zones exclusively non-motorized, but the Proposed LMP does so by establishing a desired condition that non-motorized zones be “free of motorized recreation travel.” Fourth, not only do the non-motorized zones cover the more desirable half of the forest, but they create long walls that prevent connectivity. For example, multiple non-motorized zones stretch from the High Uintas Wilderness to the Uintah and Ouray Reservation, preventing any east-west travel. They also stretch for twenty miles along the Daggett and Uintah county line, preventing north-south travel for a loop west of US-191. Fifth, they preemptively prohibit motorized trails that were carefully proposed by the trails master plans of Daggett, Uintah, and Duchesne counties. The Proposed LMP even expands non-motorized zones to cover old roads that all three of the county trails master plans proposed to reopen. We hope the agency will come to its senses and approve an LMP that allows the county trails master plans and other proposals in the coming decades to get a fair shake.

Manti-La Sal National Forest LMP

This past year, the Manti-La Sal National Forest released its Draft LMP that, like the Ashley LMP, establishes the guardrails for travel management planning over the coming decades. As RwR explained in our 2021 YIR, the preliminary Draft LMP was far too restrictive and, in the 2023 Draft LMP, none of the action alternatives are significantly better. In fact, they’re all worse than the Proposed LMP for the Ashley, as the Draft LMP for the Manti-La Sal makes non-motorized ROS zoning more severe and recommends many areas to be designated as wilderness to boot. All of the action alternatives add ROS standards and guidelines that make non-motorized zones entirely non-motorized, which might be fine if they didn’t also zone as non-motorized virtually everything above 9,000’ in the La Sal Mountains southeast of Moab other than narrow corridors for the currently-designated roads. All action alternatives of the Draft LMP zone as non-motorized even larger swaths including lower elevations elsewhere, such as the northern Manti north of Fairview, and the northern San Pitch southeast of Nephi. The Draft LMP proposes a less dramatic expansion of non-motorized zones in the southern Manti and Abajo Mountains, but most of the Abajo Mountains are currently designated as part of the 1.36 million-acre Bears Ears National Monument, which seems likely to be extremely restrictive if the draft plan for Grand Staircase-Escalante National Monument is any indication. Such restrictions would displace many forest uses to the remainder of the Abajos, making it far more difficult to sustainably provide for an ample quantity, quality, and variety of trails.

On top of the ROS zoning for summer recreation, the new ROS zoning for winter recreation would prohibit over-snow vehicles (OSVs) from traveling across huge parts of the high country in all three action alternatives. Setting aside individual basins such as Gold Basin and individual cross-country ski trail systems such as the one east of Geyser Pass is perfectly appropriate, but there’s simply no present or future need to close anywhere near half the terrain above 9,000’ (which OSV travel depends upon for consistent snowpack), especially when winter non-motorized zones prevent connectivity of winter motorized zones as outlined in local news coverage.

Alternative D and even Alternative B (that appears to be the agency’s preferred alternative) propose many Recommended Wilderness Areas (RWAs), which these alternatives propose to manage much like designated wilderness unless and until Congress designates them as wilderness or releases them. RWAs generally prohibit OSV recreation, mechanized recreation like mountain biking, and even more developed forms of non-mechanized recreation. RWAs generally make it more difficult to effectively manage for water resources, forest health, and fuels to prevent wildfire of catastrophic intensity.

RwR and the TPA submitted extensive comments to the USFS, with the guidance of Balance Resources as well as great input from Scott Jones of Land Access Consulting. Fortunately all three counties that have the most area in Manti-La Sal National Forest (Sanpete, Emery, and San Juan) commented in support of all forms of recreation by suggesting that new restrictions to motorized access be scaled back.

The Grand County Commission drafted a letter that implied support of the most restrictive ROS zones and expansive RWAs, so many residents expressed their concerns at both rounds of Citizens To Be Heard, including me (Clif) for five minutes. Then the commissioners discussed the LMP for half an hour.

The following week, the majority of the commission voted in favor of a letter that still pushed for non-motorized ROS zones to cover at least half the forest in summer, and for analysis of the wilderness expansion groups’ “conservation alternative,” which would in fact be more of a re-wilding alternative. Nevertheless Grand County’s final letter was slightly more accommodating of managerial flexibility for summer motorized recreation, significantly more accommodating of winter motorized recreation, and more neutral about RWAs. While the county had every reason to support ROS zones more similar to the current LMP so the USFS can effectively manage all forms of recreation, we appreciate the commissioners’ increasing contemplation, resulting in a letter that’s more reasonable than the one from 2021. Hopefully the USFS will respond to the majority of counties and recreation groups by proposing an LMP that’s based on Alternative A and Alternative C to best achieve the agency’s mission of multiple use and sustained yield rather than acting like it’s a national park.

Grand Staircase-Escalante National Monument (GSENM)

In 1996 nearly two-million acres of southwest Utah was proclaimed as GSENM by the president at the objection of the entire congressional delegation from Utah. The proclamation was pushed by wilderness expansion groups, particularly those funded by a Swiss billionaire, yet it promised to be managed much differently than a national park. This promise was never kept, although the 2017 scaling back of the monument boundaries and new management plans both inside and outside of the monument came closer to providing the proactive management that would be needed to achieve a more inclusive conservation.

These legitimate improvements to management plans were discarded when the scaling back of boundaries was reversed in 2021. This past year, the BLM released a Draft Resource Management Plan (RMP) that would restrict diverse recreation opportunities far more than any RMP since the monument’s proclamation in 1996. RwR and its partners submitted our concerns that all action alternatives of the Draft RMP would make motorized access of GSENM as sparse as it is in Canyonlands National Park. A Nixon executive order directs federal land managers to designate areas as open to cross-country travel, limited to existing / designated routes, or closed to OHVs. The “limited” OHV area designation typically limits motorized travel to less than 1% of the area, so the “closed” designation is only appropriate where agencies are certain that motorized travel (including all types of e-bikes) should occur in 0% of the area for decades to come. For this reason, currently just a few-thousand acres of GSENM have a “closed” OHV area designation.

However now all the action alternatives would apply this designation to the majority of the monument, straitjacketing some routes by running “closed” area boundaries to the route’s edge while outright closing other routes despite decades of work by the counties and local OHV clubs. None of these ramifications are acknowledged, let alone analyzed, by the Draft RMP. Even in most areas where no route is currently designated open, a “closed” area designation is uncalled for because motorized travel shouldn’t be prohibited categorically, however rare additions to the TMP may be.

Clearly the widespread “closed” area designations are laying the foundation to manage most of the monument as wilderness. The wilderness expansion groups that pushed for monument proclamation didn’t want to deal with congress for legitimate designation of wilderness, and the current administration seems more willing than any of its predecessors to bypass congress in creating de facto wilderness, which naturally erodes the legitimacy of proclaiming the monument in the first place. Wilderness expansion groups spend millions of dollars on PR campaigns that tout wilderness designation as the solution to virtually all problems that arise but, in the long run, this type of management across massive portions of public lands is not the most effective way to protect the “objects” that monument proclamations espoused.

Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument (BNIKAFGCNM)

While the Draft RMP for GSENM proposes to severely limit access to recreation, another nearly one-million acres immediately south of there is proclaimed to be another national monument, and its supporters deny that this proclamation will limit access to recreation. In other words, the new monument on the Arizona side of the state line is billed as no threat to recreation access while the old monument of the Utah side of the state line is imminently threatening some current and all future motorized access across nearly one-million acres of GSENM.

The proverbial traveling salesman moves to another town so the truth won’t catch up to him, but the BNIKAFGCNM is just a couple miles away from GSENM, so the rhetoric of monuments is running into the reality of them. BNIKAFGCNM surrounds Grand Canyon National Park as a buffer, but so did previous monuments, resulting in buffers of buffers. BNIKAFGCNM also extends northeast to Vermillion Cliffs NM, which was proclaimed as a buffer of GSENM, so the buffer of one “protected” area is bumping into the buffer of another “protected” area, and the Arizona Strip is stripped of nearly any land to be managed by the apparently old-fashioned form of conservation in which land can be enjoyed by a wide variety of recreation, and in which other resources can actually be used to whatever degree is sustainable.

In the latest round of monument proclamations, the northern Kaibab Plateau was spared because new mining has already been banned there, while areas east and west of there are now proclaimed as BNIKAFGCNM primarily to prevent uranium mining. Perhaps mining operations should be further reformed, but the wilderness expansion groups’ goal of prohibiting mining across millions of acres in northern Arizona (and southern Utah alike) is ironic because power sources like small-scale nuclear plants are apparently the most viable alternatives to fossil fuels. The president said that proclaiming BNIKAFGCNM will help combat climate change, yet it appears to be doing the opposite.

Another Orwellian selling point of BNIKAFGCNM is that it will advance indigenous access and tribal sovereignty by implying co-management, although such an offer actually requires congress, and expanding reservation boundaries would be more straightforward. In proclaiming BNIKAFGCNM, the president correctly pointed out that tribes had been kicked out of Grand Canyon National Park, but then he claimed that the new proclamation will enable them to come back. Actually the proclamation will reduce access and, even if tribal members are granted more access than others, it’ll still be less than the current level of access. Further, even if the tribes achieved co-management, the decision space for management is greatly shrunk by the proclamation. Monuments aren’t just limiting to the public, they’re limiting to managers. Being co-managers of an area that’s tied up like wilderness actually provides less sovereignty than being one of several partners for an area that allows more managerial flexibility. In this way, BNIKAFGCNM and Bears Ears National Monument just make more empty promises to indigenous communities. Alternatively, enabling land management to improve its efficiency and productivity could truly help all Americans thrive.

I had the privilege of working on the North Rim of Grand Canyon for a couple seasons, and enjoyed recreating in areas now proclaimed as BNIKAFGCNM, riding old roads like the one from the ranch at Cane Canyon up to Telephone Hill (i.e. climbing from House Rock Valley up the monocline onto the Kaibab Plateau). So long as it’s a national monument, the dream of future generations riding electric motorcycles up primitive routes like that one seems like nothing more than a mirage.

Conclusion

Even if presidential proclamations were justified to make national monuments out of the remaining “unprotected” areas (as if they’re not already “protected” in many ways), it’s undeniable that they fuel partisanship and unilateral land management (i.e. executive fiat). To maintain perspective, it’s important to be guided by the ideals of democracy and truth, recognizing that “we” have not always been entirely right and “they” have not always been entirely wrong. While advocating for recreation access that’s vital to our well-being, in turn we must advocate respect for the natural and cultural resources that are equally vital. As challenges mount, we’re encouraged by the potential resources that come along with the rising popularity of outdoor recreation. Many thanks to the many folks who support RwR, and may everyone have a happy ride into the new year.

Clif Koontz
Executive Director
Ride with Respect
395 McGill Avenue
Moab, Utah 84532
435-259-8334 land