Protecting the Public Lands: BLM Stuck in Low Gear On Regulating Use of Off-Road Vehicles

Administrators of the federal government's public lands are currently facing a major problem in attempting to resolve the conflict between the demand for recreational space for "off-road vehicles" (ORVs), such as trail bikes, dune buggies, and snowmobiles, and the need to protect the lands from serious environmental damage that can be caused by such machines. Recently, the Department of the Interior issued a final environmental impact statement (EIS) on the use of Interior lands by ORVs,¹ and the Bureau of Land Management (BLM), as proprietor of 474 million acres of federal lands on which half the nation's ORV activity takes place,² proposed regulations for the designation of public lands for ORV usage.³ This is the second attempt by the Interior Department and BLM to resolve this problem and, like the first, it can only be characterized as one of excessive disregard for the immediacy of the environmental damage.

The use of ORVs has increased dramatically over the past decade. From relative obscurity ORV usage has mushroomed to the point where perhaps a quarter of the population, using 10 million vehicles, is now taking part in ORV activities.⁴ The ORV phenomenon, in which riders escape the tedium and stresses of urban life through motorized exploration of wild open spaces, is clearly riding the crest of the current popularity for all forms of outdoor recreation.

While the recreational pleasures provided by ORVs are apparently considerable, the substantial and long-lasting environmental damage such vehicles cause is well documented.⁵ ORV usage can inflict orievous harm to deserts, sand dunes, forested mountains, and other unpopulated areas. This damage includes soil and vegetation despoliation, disruption of wildlife habitats, vandalism of remote historic and cultural artifacts, and noise pollution of back country areas which interferes with the recreational serenity sought by non-motorized users.

BLM shoulders the bulk of the responsibility for handling the ORV issue on federal lands because of its position as the largest public-land administrator in which it must harmonize the competing demand for consumptive use of the federal lands with its legal mandate to conserve the natural resources thereon. The agency does not operate in a political vacuum: as ORV activity has blossomed, the growing number of users and manufacturers have marshalled well-organized and vigorous opposition to attempts at federal regulation.⁶ Such pressure has, perhaps more than any other factor, resulted in regulatory delay by the federal government.

Background

1972 Executive Order

The growing use of ORVs on the federal lands and the recognition that both recreational benefits and environmental harms flow from such use⁷ led President Nixon in 1972 to issue Executive Order 11644⁸ in which he called for a unified federal policy for regulating use of ORVs on federal lands. The order directed the four principal agencies with control over public lands, the Departments of Agriculture, Defense, and the Interior and the Tennessee Valley Authority, to establish policies and procedures to protect the lands' resources, promote the safety of all users, and minimize conflicts among the various users. The heart of the Executive Order required agency heads to issue regulations within six months providing for the designation of "specific areas and trails" where ORV use would be allowed and "areas" where it would not be permitted. Designation would be based on the aforementioned purposes and "in accordance with" four specific criteria:

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

[8 ELR 10179]

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

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

(4) Areas and trails shall not be located in officially designated Wilderness Areas or Primitive Areas. Areas and trails shall be located in areas of the National Park System, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.⁹

A year and a half after the deadline, BLM issued final ORV regulations.¹⁰ Essentially, the regulations maintained the status quo leaving almost all BLM lands open to ORV use unless they were later specifically closed pursuant to the listed criteria. This BLM action may have been dictated by administrative convenience.¹¹ Nonetheless, a conservation group soon challenged the regulations in court as being contrary to both Executive Order 11644 and the National Environmental Policy Act (NEPA).¹²

1975 Court Decision

In National Wildlife Federation v. Morton,¹³ the district court held that the regulations were indeed legally deficient after finding that they failed to comply with Executive Order 11644 and NEPA. BLM's blanket designation of all lands as open to ORV use unless otherwise restricted or closed not only created "a subtle, but nevertheless real, inertial presumption in favor of ORV use"¹⁴ but, more importantly, violated the Executive Order which required that all designations of areas as open to ORV use be made in conformance with specified environmental criteria. Thus, the court found that the presumptively open states constituted a designation without an evaluation.

The court also rejected BLM's purported response to the Executive Order's requirement that a date be named for completing designation of all lands within its jurisdiction as open or closed. A BLM press release¹⁵ stating that the agency "expected" to complete designation by 1980 through preparation of initial land use plans for all BLM lands was found by the court to be inadequate because it simply failed to "set a date" as required by the Order. The court also ruled the regulations did not ensure that all public lands would be evaluated for designation, in violation of the Executive Order's mandate, because BLM claimed discretion not to evaluate lands which had been reviewed prior to issuance of the ORV regulations. Fifth, the court concluded that when BLM transposed the Executive Order's criteria for designation into its own regulations, the agency had seriously diluted the Order's standards. Where, for example, the Order required that an open area "shall be located to minimize harassment of wildlife," the regulations stated only that the designation decision will include "consideration of the need to minimize harassment of wildlife."¹⁶

The court also found the EIS to be violative of NEPA in that the Department of the Interior failed to consider reasonable alternatives to the proposed designation process.¹⁷ The EIS had analyzed only four alternatives — taking no action, closing all Interior Department lands to ORV use, opening all lands to ORV use, or delegating authority to the bureaus to implement the Executive Order without review by the Secretary of the Interior — all of which, the court found, would have violated the Executive Order. The court did not define what additional alternatives should be considered, but it found that the defendants had failed to develop and evaluate reasonable and appropriate alternatives within the meaning of NEPA.

The Second Try

BLM spent the next 14 1/2 months restudying the ORV situation and developing a new draft EIS and proposed regulations, both of which finally appeared¹⁸ nearly four and a half years after the original Executive Order was issued. Both inside and outside the government, however, there was opposition to BLM's revised proposals.¹⁹ What seemed most significant about BLM's second round of procedures, to those who commented on the draft EIS, was the unexpected extension of the designation timetable. Whereas during the litigation over the original regulations BLM had indicated that it would complete the designation process by 1980, thenew schedule in the draft EIS did not envision completion of the designation process until 1987. Until sequentially evaluated pursuant to the review and designation criteria, the public lands under BLM's jurisdiction would simply continue in their current, undesignated status, which meant that the vast majority of BLM lands would remain open to ORV use. Commentators on the draft EIS, including a large number of federal and state resource agencies as well as the National Wildlife Federation, pointed out the danger of severe and irreparable degradation of fragile lands if left open to ORV use for up to 11 years without evaluation and protection. Many reviewers called for interim designation in order to provide immediate protection for sensitive areas.

New Executive Order

There was, however, no further development until, in his 1977 Environmental Message, President Carter addressed the issue of ORV's²⁰ and amended Executive [8 ELR 10180] Order 11644,²¹ apparently in response to the concerns of those alarmed at the environmental toll that ORV's were continuing to take on the public lands. In adding a new § 9 to the end of Nixon's Executive Order, President Carter, in subsection (a), directed agency heads to immediately close particular areas, without full-dress evaluation pursuant to the designation criteria or even public participation, if ORV use "will cause or is causing considerable adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural or historic resources." In subsection (b), agency heads were "authorized to adopt the policy that portions of the public lands" under their jurisdiction could be closed until they were designated open.

President Carter's amendments seem to represent only a partial improvement of Executive Order 11644 as far as implementing federal sensitivity to environmental damage by ORV's on federal lands. The § 9(a) directive for emergency closures may have been to spur BLM into at least some action, but a greater sense of urgency, consistent with the spirit of the original Executive Order, could have been generated by requiring the immediate study and closure of, for example, the 10 percent of an agency's land most susceptible to ORV damage.

A more environmentally responsible agency might well have accelerated the designation process to take care of emergency situations and thus not have needed a gentle prod five years later. On the other hand, even the existence of the emergency provision is to no avail if it is not used. Requiring immediate closures only on the ground of "considerable adverse effects" leaves a discretionary gap in the command through which a caravan of ORVs could be driven. It would be difficult to mount a legal challenge to a decision not to act based on such a subjective standard.

The addition of the discretionary closure authorization is § 9(b) may be helpful in that it expressly provides authority for an agency to adopt a strict "presumptive closure" policy, but it has the added effect of undercutting any argument that the designation provision of the Executive Order requires immediate closure of lands pending designation of specific areas as open to ORV use. A failure to adopt the policy authorized by § 9(b) may reflect a willingness to please ORV users at the expense of protection of natural resources. Interestingly, two of the four federal agencies directed to prepare ORV regulations have considered the original Executive Order to be sufficient authority to close all of their lands to ORV use until designated open.²²

New Final EIS and Proposed Regulations

The new final EIS on Interior Department implementation of the Executive Order was issued in the spring of 1978,²³ and BLM's proposed regulations were made available for public comment two and a half months later.²⁴ The EIS confirmed the drawn-out designation schedule which had been announced in the draft EIS, and the proposed regulations reiterate BLM's determination to continue the status quo in which ORV use is presumptively permitted on most BLM lands without slipping into the legal pitfall of a blanket designation.

The new regulations leave lands in the open, closed, or restricted status in which they had been prior to the first set of regulations in 1974. The lands are then to be formally designated according to a timetable set out in the EIS. This approach provides no significant de facto change in the current ORV regulatory picture²⁵ and may be the weakest possible response consistent with the order of the court. It clearly does not provide immediate protection for particularly fragile areas, a need articulated throughout the comments on the draft EIS.Moreover, as pointed out by the Sierra Club,²⁶ it does not seem to be in the spirit of the 1975 court decision, which acknowledged the need for early protective measures to minimize the damage caused by this burgeoning use of the public lands.

The final EIS defends this approach on the ground that more aggressive regulation is unnecessary because the new Executive Order provides sufficient authority for emergency protection of fragile areas.²⁷ This argument, however, would be more convincing if BLM had actually implemented § 9 to the extent that it appears to have been intended. One of the alternative regulatory approaches addressed in the EIS was to close on an interim basis those lands of the highest ecological priority (about 30 million acres). This approach would be consistent with the authorization of § 9(b) of the Executive Order and would seem to meet the concerns of the commentators on the draft EIS who saw the need for immediate protection of fragile areas. It is unfortunate that the final EIS rejected this alternative on the familiar ground of administrative incapacity and because the Secretary of the Interior apparently interpreted § 9(b) of the Executive Order to apply, on a case-by-case basis, only to far more limited "portions of the public lands" than would encompass the top priority areas.²⁸

The 1975 court decision specifically criticized the designation process set out in BLM's first set of final regulations as diluting and misstating the criteria set forth in Executive Order 11644. The agency has corrected this shortcoming in its new proposed regulations by simply tracking the language of the Executive Order.²⁹

The failure of BLM to "set a date" for completion of the designation process was another reason for the court's finding that BLM had not complied with the Executive Order. In the final EIS, this problem was [8 ELR 10181] addressed by establishing a schedule under which the areas that receive 60 percent of the total ORV use on BLM lands — in southern California, southern Nevada, western Arizona, and central Utah — would be reviewed and designated by the end of 1981, with the balance to be completed, "[a]s staff funds permit," in 1985 and 1987.³⁰ BLM has estimated that it will cost $18 million and 800 man-years to complete its work.³¹

To say the least, this new stretched-out schedule for designation is disappointing. BLM has strictly complied with the rather flexible mandate of the Executive Order and the terms of the court decision, but the longer study and designation timetable make a certain degree of avoidable environmental destruction a certainty. Indeed, the Department of the Interior acknowledges this danger throughout the EIS,³² but the agency felt that its funding limitations and its authority to make emergency designations were sufficient justification for choosing this limited action.

The indifference to continued short-term degradation which characterizes the current proposal is pointed up by careful examination of the lands scheduled to be designated by 1981 in the first round of evaluations. BLM has said that the first round will cover areas on which 60 percent of the ORV use of BLM lands takes place. In fact, however, almost all of this land has already been evaluated, and restrictions on ORV use have already been placed on the California Desert, which presently supports 50 percent of the ORV use on BLM lands.³³ The agency thus has already set an unhurried workload for itself for the next few years.

The NEPA violation found by the district court in 1975 seems to have been rectified in the new final EIS through discussion of a variety of designation and scheduling alternatives.³⁴ In considering possible alternatives, however, the EIS rejects the blanket closure of all BLM lands pending specific "open" designations. Even though blanket closure pending final designation could admittedly prevent most of the adverse environmental effects of the delay, it was rejected in the final EIS because the new § 9(b) of the Executive Order, which authorizes an agency to close "portions" of its public lands unless "suitable and specifically designated as open" to ORV use, is limited and does not allow closing all lands.³⁵ This would be a defensible reading of the language were the agency charged solely with protecting ORV use, but it is an excessively narrow reading if protection of natural resources is also a serious goal.³⁶

Conclusion

BLM's new proposed ORV regulations seemed tailored to meet the legal confines of both Executive Order 11644, as amended, and the 1975 court decision. The agency has achieved minimum compliance by repeating the designation criteria of the Executive Order, by setting firm, although extended dates for the incremental completion of the designation process, and by freezing lands in the use status which were in effect prior to the invalidation of the earlier regulations pending final designation. The proposed regulations, however, appear to be in large measure cosmetic adjustments of the earlier discredited rules. Why it took so long to reach this result is unclear. Furthermore, by essentially continuing the status quo, the regulations appear to be utterly unresponsive to the spirit of urgency concerning the prevention of continued deterioration of resources embodied in the Executive Order and the district court's opinion.

The designation criteria listed in the Executive Order and incorporated in the regulations obviously mean to apply a strict standard for opening an area to ORV use, but it is not clear that BLM is presently allowing open use only upon careful and individualized consideration. Furthermore, a duty can be implied that action must be taken quickly, but BLM, by delaying, is avoiding full compliance with the intent of the Executive Order. For this reason, it is particularly unfortunate that the alternative of allowing interim protection of specially fragile areas was not adopted.

BLM has not aggressively and affirmatively addressed the environmental problem of ORV usage on its lands; rather, it has simply made a minimal response to the Executive Order and court decision with the apparent intent to protect as much as possible the recreational interests of the ORV users. The agency's bias in this matter is mirrored in several press releases from the Secretary of the Interior.³⁷

Undeniably, recreational benefits are gained from ORV use, and ORV users cannot, as a group, be tarred as environmental vandals. But the nature of the ORV is such that it can, even when driven with the best of intention, cause grievous environmental damage. Many user groups in fact emphasize a heightened environmental sensitivity to go along with their recreation. The ORV users have convincingly demonstrated their political clout.³⁸ They should also recognize, however, that it is in their long-term best interests to support reasonable environmentally protective regulation and an early settlement of this controversy. By actively working toward a reasonable resolution, they can ameliorate to some extent the present hostility that exists towards ORV users from both non-motorized back country users, who [8 ELR 10182] must compete with ORV enthusiasts in the recreational enjoyment of the public lands, and those who are deeply concerned about the rapid deterioration of these lands.

Nonetheless, one cannot be sanguine about BLM's role as the administrator of the largest segment of the nation's public lands subject to ORV use. To be blunt, the agency's record of environmental sensitivity is not particularly glowing,³⁹ not does it appear to be anxious to move forward with an imaginative ORV use monitoring system or to develop a careful enforcement program. It is becoming increasingly clear that something more must be done to respond to the widespread and well-founded concerns about ORV-caused environmental damage to the public lands.

1. Heritage Conservation & Recreation Service, Dep't of the Interior, Final Environmental Statement, Departmental Implementation of E.O. 11644, as amended by E.O. 11989, Pertaining to the Use of Off-Road Vehicles on the Public Lands (FES 78-5, 1978).

2. D. SHERIDAN, OFF-ROAD VEHICLES ON PUBLIC LANDS, A REPORT TO THE COUNCIL ON ENVIRONMENTAL QUALITY 7 (draft Aug. 1978). Of the BLM lands, 175 million acres are in the contiguous 48 states where the vast majority of recreational ORV use occurs. Over half of the ORV use on BLM lands takes place in the desert area of California, Nevada, and Utah. In addition, ORV enthusiasts frequent Atlantic seaboard beaches, southeastern woodlands, and, primarily with snowmobiles, the New England and Great Lakes forests. Pressure for ORV usage on federally owned lands will grow as state and private landowners increasingly restrict ORV usage because of environmental damage. See generally SHERIDAN, at 115-20; M. BALDWIN & D. STODDARD, THE OFF-ROAD VEHICLE AND ENVIRONMENTAL QUALITY (2d ed. 1973).

3. 43 Fed. Reg. 29412 (July 7, 1978) (to be codified at 43 C.F.R. pt. 6290).

4. SHERIDAN, supra note 2, at 5, 7.

5. BALDWIN & STODDARD, supra note 2. For an extensive bibliography of the effects of ORVs on the environment, see SHERIDAN, supra note 2, at Appendix 1. See also Sheridan, Dirt Motorbikes and Dune Buggies Threaten Deserts, 9 SMITHSONIAN, no. 6, at 66 (Sept. 1978).

6. SHERIDAN, supra note 2, at 103-04.

7. See generally Hearings on the Effects of the Rapidly Expanding Uses of All Terrain Vehicles on the Public Lands before the Subcomm. on Parks and Recreation of the Senate Comm. on Interior and Insular Affairs, 92d Cong., 1st Sess. (May 21, 1971).

8. 37 Fed. Reg. 2877 (Feb. 9, 1972), 3 C.F.R. 322 (1974), as amended by Exec. Order No. 11989, 3 C.F.R. 120-21 (1978). The Executive Order is set out at ELR STAT. & REG. 45016. The 1977 amendment added § 9 and raised the definition of emergency ORVs in § 2(3)(B). See text at note 21, infra.

9. Exec. Order No. 11644 § 3, supra note 8.

10. 39 Fed. Reg. 13612 (Apr. 15, 1974), codified at 43 C.F.R. pt. 6290 (1977).

11. See Comment, National Wildlife Federation Challenges BLM Rules Governing Off-Road Vehicle Use on Federal Lands, 4 ELR 10180 (1974).

12. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

13. 393 F. Supp. 1286, 5 ELR 20362 (D.D.C. 1975).

14. 393 F. Supp. at 1292, 5 ELR at 20364.

15. See 393 F. Supp. at 1293, 5 ELR at 20365.

16. 43 C.F.R. § 6293.3(g) (1975) (emphasis added).

17. See National Environmental Policy Act. 42 U.S.C. § 4332(2)(C)(iii), ELR STAT. & REG. 41010.

18. Dep't of the Interior, Draft Environmental Statement, Departmental Implementation of E.O. 11644 Pertaining to the Use of Off-Road Vehicles on the Public Lands (DES 76-27, 1976). This EIS was made available for public comment on July 19, 1976, and the proposed regulations were published on July 28, 1976. 41 Fed. Reg. 31518 (1976).

19. See comments to draft EIS in the final EIS, supra note 1, at 62-547.

20. The Environment — Message to the Congress, May 23, 1977, 7 ELR 50057, 50064 (1977).

21. Exec. Order No. 11989. See note 8, supra.

22. Tennessee Valley Authority, 18 C.F.R. § 305.3 (1977); Department of Defense, Notice of Proposed Rule Making, 38 Fed. Reg. 6186 (Mar. 7, 1973) (codified as Dep't of Defense Directive No. 6050.2, effective Aug. 21, 1974).

23. See note 1, supra.

24. See note 3, supra. These regulations were proposed six years and five months after the original Executive Order was issued calling for designation regulations within six months.

25. There has been little change in the amount of closed acreage in the last few years despite the Executive Order's call for a substantial change from the status quo on ORV regulation. Out of BLM's vast holdings, only about three million acres, consisting of primitive and natural areas, wild rivers, and similar terrain, are presently closed to ORVs.

26. Final Environmental Statement, supra note 1, at 395.

27. Id. at 46.

28. Id. at 46-47. See also Press Release, Dep't of the Interior, Office of the Secretary (May 26, 1977).

29. 43 Fed. Reg. at 29415 (to be codified at 43 C.F.R. § 6292.1).

30. Final Environmental Statement, supra note 1, at 5-6.

31. Id. at 33.

32. Id. at 36-39, 43, 47.

33. This administratively designated conservation area is managed by BLM and comprises about 12 million acres in California, Nevada, and Utah. Perhaps because of its proximity to the many ORV users in the Los Angeles-San Diego megalopolis, one million acres of the desert have already been severely degraded by ORV usage. See generally SHERIDAN, supra note 2. The desert has been managed according to an Interim Critical Management Program since November 1973, under which about 90 percent of the land is subject to limitations on ORV usage and three percent is completely closed to ORVs. The Federal Land Policy and Management Act of 1976 requires completion and implementation of a comprehensive management plan for the desert by September 30, 1980. 43 U.S.C. § 1781, ELR STAT. & REG. 41475.

34. Final Environmental Statement, supra note 1, at 39-51.

35. Id. at 33-34, 76.

36. See text and note 22, supra.

37. Press Releases, Dep't of the Interior, Office of the Secretary (May 26, 1977; April 19, 1978). See also Letter from the State of Alaska commenting on the draft EIS, Final Environmental Statement, supra note 1, at 125.

38. See note 6, supra.

39. The most recent criticism of BLM's inability to meet its own deadlines for protecting the natural resources under its administration was voiced in the controversy over BLM's required preparation of EISs for grazing on the public lands. See Natural Resources Defense Council v. Andrus, 8 ELR 20577 (D.D.C. Apr. 14, 1978).