National Wildlife Federation Challenges BLM Rules Governing Off-Road Vehicle Use on Federal Lands

Mass-marketed recreational "off-road vehicles" (ORVs) such as snowmobiles, dune buggies, trail bikes, motorcycles, all-terrain vehicles, and four wheel drive cars and light trucks are a comparatively recent phenomenon. These descendants of the World War II "jeep" are designed for overland use in addition to travel on paved roads and highways. While the 5 million ORVs now in use allow affluent Americans to "get back" quickly to natural settings otherwise inaccessible except by days of hiking, they also unfortunately despoil soil, destroy vegetation, disrupt wildlife habitats with noise pollution, and facilitate poaching, illegal logging, and vandalism on both public and private lands. One of the most disturbing examples thus far has been the removal of pre-Columbian artifacts and the defacing of primitive cliff dweller paintings on remote public lands in the Mojave Desert by groups of ORV riders.

The widespread use of ORVs on federal lands and the well-documented¹ havoc which this use wreaks on the environment was the impetus behind the issuance of Executive Order 11644 on February 9, 1972.² The Order was an attempt to establish policies and procedures for controlling the use of off-road vehicles on federal lands. Basically it opts for controlled use of federal lands by ORVs, rather than for non-use, but makes an effort to accord environmental concerns their rightful place in the balancing of interests involved in determining the nature of such controls. Acknowledging that widespread ORV use on the public lands frequently conflicts with wise resource management practices, environmental values, and other kinds of recreational activities, E.O. 11644 recognized the need for a unified federal policy regarding such use and directed federal agencies to develop rules governing ORV use in lands under their jurisdiction.

On April 15, 1974, more than a year and a half after the six-month deadline imposed in the Order had expired, the Department of Interior's Bureau of Land Management, which is responsible for the administration of 452 million acres of public land, issued its final rules governing ORV use.³ These regulations are of particular importance since the lands under BLM jurisdiction constitute approximately 20 percent of the land surface of the United States, 60 percent of all federally-owned land in the United States, and over 80 percent of the federal land under the administration of the Department of Interior. As if to underscore this importance, the rules were soon challenged by the National Wildlife Federation in federal district court⁴ on the grounds that they fail to meet the requirements of E.O. 11644 and § 102(2) of NEPA.

The heart of the Executive Order is Section 3, which provides for the designation of zones of use. The Secretaries of Interior, Defense, and Agriculture, and the Directors of the TVA were directed to develop and issue within six months regulations providing for the administrative designation of "specific areas and trails on public lands on which the use of off-road vehicles may be permitted, and areas in which the use of off-road vehicles may not be permitted." Each respective agency head must also set a date by which all public lands under his jurisdiction will be so designated. The regulations must direct that this designation of areas and trails be based upon "the protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization of conflicts among the various users of those lands." The rules must also require that areas and trails be located to minimize both damage to soil, watershed and vegetation, and harassment of wildlife or significant disruption of wildlife habitat.

In addition, areas and trails are to be located so as to minimize conflicts between ORV use and other existing or proposed recreational uses of the same or neighboring public lands. The compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors, is to be ensured. ORV use is not to be permitted in Wilderness or Primitive Areas, not ORV areas and trails may be located in National Parks, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that such locations will not adversely affect their natural, aesthetic, or scenic values. The agency head is also directed to ensure adequate opportunity for public participation in the designation of areas and trails under the regulations.

The BLM's response to these directives has been essentially to formalize the environmentally unsatisfactory status quo under which most BLM lands are open to ORV traffic, while adopting a review procedure by which such lands may eventually be redesignated. A possible motive for this feeble response is simple administrative convenience. By not disturbing present ORV use patterns, the BLM avoids the difficult task of notifying users of changed designations, and escapes the predictable complaints from such users which would follow immediate closure action. But as innumerable judicial decisions have [4 ELR 10181] made clear, administrative convenience is no excuse for agency failure to comply with statutory or regulatory directives.

All areas of the public lands under BLM's jurisdiction which are now open to ORV use are designated under the regulations as "open areas" in which such use may continue. The authorized officer within BLM may designate or redesignate any public lands as restricted or closed. ORV use in restricted areas may be subjected to limitations regarding the number or type of vehicles allowed, times of use, or similar matters. Closed areas and trails are locations where ORV use is permanently or temporarily prohibited.

According to the BLM regulations, designations of restricted and closed areas are to be based on the following criteria:

(a) The ability of the land and its resources to withstand and sustain ORV use impacts.

(b) Consideration of the scenic qualities of the land, and its cultural, ecological, and environmental values.

(d) Consideration of ORV use impacts on other lands, use, and resources.

(e) The potential hazards to public health and safety, other than the normal risks involved in ORV use.

(f) The existing or potential quality and quantity of recreational experiences available.

(g) Consideration of the need to minimize harassment of wildlife or significant disruption of wildlife habitat.

(h) The furtherance of the purposes and policy of NEPA.

In making designations, the authorized BLM officer is to consult with interested user groups, federal, state and local agencies, local landowners, and other parties "in a manner that provides an opportunity for the public to express itself and have those views taken into account." Designation or redesignation shall, to the extent practicable, be made in conformance with the existing BLM planning system for the formulation of multiple use management plans. The authorized officer may act independently of the planning system, however, if he determines that emergency action to close or restrict areas and trails "is essential to attain the objectives of the regulations …."

NWF attacks the rules as failing to fulfill the requirements of E.O. 11644 in five particulars: (a) the rules designate all BLM lands (except those few areas previously closed) as open to ORV use without regard to the evaluation criteria prescribed in the Order; (b) the rules fail to provide for the required public participation; (c) the regulations fail to set a date for completing the designation; (d) the rules fail to require that all BLM administered lands be evaluated for suitability for ORV use under the criteria set forth in the Order; and (e) the regulations fail to adopt the specific evaluation criteria prescribed by the Order.

An additional count charges that the Department of Interior's final environmental impact statement for the regulations fails to identify and consider logical alternatives in violation of §§ 102(2) (C) (iii) and 102(2) (D) of NEPA. As examples of such alternatives, NWF suggests the following: closing all BLM administered lands to ORV use as an interim measure pending evaluation and designation of specific areas as suitable for such use; closing certain areas to ORV use during certain seasons; making an expedited survey to determine which critical wildlife, archeological, historical and other natural resource areas should be protected by immediate closure.

NWF's bsic challenge to the rules, namely that they designate almost all BLM administered land as open to ORV use without regard to the environmental evaluation prescribed in E.O. 11644, draws considerable support from the language ofthe Order. The respective agency head "shall develop and issue regulations … to provide for administrative designation of the specific areas and trails on public lands on which the use of off-road vehicles may be permitted …." (emphasis added) The rules do not provide for the designation of specific areas in which ORV use is to be permitted; instead, the presumption is that ORV use will be allowed on all areas and trails on public lands except where specifically prohibited. This seems a clear reversal of the Executive Order's express intent. The regulations also seem clearly deficient in applying the environmental evaluation criteria only to the designation of closed or restricted areas, and not to the fait accompli designation of almost all BLM land as open to ORV use. This deficiency is understandable, however, since applying evaluation criteria to general rather than to specific areas and trails would almost certainly prove an impossible task. It should be noted that both these shortcomings stem from the general designation of all BLM lands not presently closed to ORV use as open to such use pending evaluation and further designation. And finally, it is indisputable that the rules fail to set the required date for the completion of the designation procedure.

Those who hoped E.O. 11644 would stir rapid administrative action to mitigate the detrimental effects of ubiquitous ORV use no doubt stand disappointed, since under the BLM regulations, any tightening of federal control over ORV use on public lands is bound to come slowly, if at all. The NWF suit, however, which has progressed to the stage of settlement negotiations, may serve to rectify this situation. NWF's challenges to the rules as being inconsistent with the directives of the Executive Order and in violation of NEPA seem well taken, and either success on the merits or a negotiated settlement would surely require the BLM to rewrite the regulations, bringing them more into line with the environmentally laudable aims of E.O. 11644.

1. Hearings on the Effects of the Rapidly Expanding Use of All Terrain Vehicles on the Public Lands Before the Subcommittee on Parks and Recreation of the Senate Committee on Interior and Insular Affairs, 92nd Cong., 1st Sess. (May 21, 1971); Baldwin & Stoddard, The Off-Road Vehicle and Environmental Quality 8-34 (2d ed. 1973); U.S. Dept. of Interior, Off Road Recreational Vehicles Task Force Report 42-47 (Nov. 1971).

2. ELR 45016, 37 Fed. Reg. 2877 (Feb. 9, 1972).

3. 39 Fed. Reg. 13612 (Apr. 15, 1974).

4. National Wildlife Federation v. Morton, No. 73-1215 (D.D.C. filed Aug. 9, 1974).