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CA4WDC NRC South Report - July 2012

Eldorado - The Eldorado National Forest is free from preservationist litigation attacking a Travel Management Plan that originally closed just over 900 miles of roads and trails. Today (July 31) Senior U.S. District Judge Lawrence K. Karlton issued his final order and judgment in a case originally filed in 2009.  

The Court's May 2011 decision on the merits largely upheld the Eldorado travel management decision, denying preservationist demands for even more closures. Sadly, the court required further proceedings to address Endangered Species Act procedures concerning 42 routes that cross meadows.  Today's order and final judgment, which terminates the case, determines that the Forest has fully complied with any Endangered Species Act concerns and adopts the Forest Service's proposed remedy over preservationist objections for continued travel along the meadow routes.  According to the Forest Service, the meadow routes encompass a total of about 135 miles.  Under today's order, access will be restored on about 46 miles of those routes, while about 89 miles will remain closed.

The good is that 46 miles of routes have been restored with the lifting of the extended wet weather closure.  

The bad is these closures were unnecessary and issued without legally required findings.  And, the 42 routes through the meadows remain closed. The Forest is completing renewed analysis and will issue a new decision on these routes. 

It remains for OHV interests to stay in the loop, participate in the ongoing management process and help support continued efforts to restore full access.

Current information about the Eldorado NF trail conditions are available at: http://www.fs.usda.gov/eldorado

OHMVR - The Off Highway Motor Vehicle Recreation Program was established under Chappie-Z’berg Off-Highway Motor Vehicle Law of 1971 as a self-funded program to provide for motorized recreation opportunities for the State of California and authorized grants to local agencies in support of recreation opportunities.

Over the life of the program, almost $430 million in grants and cooperative agreements have been provided to counties, Forest Service, BLM and non-profit organizations.  During that time, over $185 million has been diverted from the OHV Trust Fund; about $129 million since 2009.

Since mid-May, I have been researching and collecting information about the local assistance grants program and its financial impact to counties.  While much work on the project remains, a draft will be presented to the Board of Directors at the August Board meeting. 
Related to the OHV funding issue is the unfolding scandal within State Parks concerning over $54 million in hidden funds.  It has been acknowledged that at least $33.5 million are part of the OHV Trust Fund.  The remaining $20.4 million are linked to the State Parks Recreation Fund.  However, LOA analysis of past State Parks budget submissions indicate the SPRF has been depleted.  Since that time, over $129 million has been transferred from the OHV Trust Fund, some of which may have been transferred to State Parks.

As it stands, the hype that 70 State Parks would close without significant funding support (at the expense of the OHV Trust Fund) fizzled to a warning about 5 parks after the budget was signed.  This in spite of the fact that State Parks had a budget reduction in the final version of the budget.

The scandal involving hidden funds has generated much discussion within the political establishment.  The Governor’s Office and the State Senate and Assembly leaders are aware of the problem.

The Governor’s Office is supporting a full investigation by the Attorney General into the “hidden fund” issue.  And, other funding scandals involving special funds are coming to light.

In coming months, the OHV program and related State Parks scandal will continue as important issues.

As previously noted, funds (almost $186 million) have been diverted from the OHV Trust Fund to other sources since 1974.  The legality of this action has been subject to debate and a lawsuit filed in 1995.

State law does allow for “loans” from one agency to another as enacted by the legislature.  Typically, the “loans” are to be repaid within two fiscal years and may or may not have a repayment date.  Specific to the OHV Trust Fund, such loans are required by law to be repaid within two fiscal years or "when the program becomes encumbered".

However, the legislature initiates the "loan" and repayment provisions are not enforceable.

The use of the caveat "when program becomes encumbered" is interesting.

Basically, an agency cannot submit a budget that is "encumbered"; meaning, in a deficient. Should an agency face a deficient during the year, it is required to cut expenses.

The critical legal argument involves the "separation of powers" doctrine.  Under that doctrine, the Court cannot compel the legislature to fund a program that is not mandated by constitution or initiative from the people.

This is underscored by several court decisions, one of which is County of San Diego vs State (2008) 164 Cal App 4th 580.  In this decision, it was argued that a court could not order the repayment of a loan from a special fund unless the Legislature appropriates money in the budget for the purpose of making the repayment.  Under Civil Code Section 3523, “for every wrong there is a remedy.... However, statute does not permit a judicial remedy when the remedy is with legislation”.

The real issue lies with the use of appropriated funds for the intended legislative purpose.  That is an issue the court has jurisdiction over.  That does not fall under separation of powers doctrine.  There is an exception to the constitutional prohibition that prevents the court from interfering with the budget or ordering the legislature to appropriate money outside of the purposes for which an appropriation was reserved, i.e. to pay back a loan.  “As long as that body does not exceed its powers, and its judgment is not influenced by corruption, a court cannot substitute its judgment for that of the Legislature.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580).

The courts have concluded that when the legislature fails to make an appropriation, the court cannot remedy that action.  It is a discretion specially confided by the Constitution to the body possessing the power of taxation.

The OHV Program is a legislative mandate without the constitution or initiative protection.

Hence, a legal case can be brought forward and prevail.  However, the courts cannot compel the legislature to restore the funding due to the separation of powers doctrine.

In short, ensuring the stability of the OHV program requires adequate funding.  The program was structured as “self-funded” and has never received General Fund revenue.  Ensuring stability of the program will require 1) legislative involvement, 2) user involvement, and 3) litigation when appropriate.

Several meetings have been arranged in the coming months to move forward with the legislative involvement.  The user involvement means every recreationist fully understand the OHV program and support the OHV program.  When appropriate, litigation is a tool.  Now is not the time for litigation.

Johnson Valley - The USMC has released the long delayed Final Environmental Impact Statement for the proposed expansion of 29 Palms Marine Base into the Johnson Valley OHV Area.

At this stage of the public process, introduction of new material is not possible unless it can be linked to material already subject to public comment and analysis.

For those that submitted comments during the previous public comment periods, now is the time for you to review the Final EIS and determine if your comments have been addressed.  If they have been addressed and you believe the discussion does not reflect your intent, you can submit rebuttal comments.

Also, if a topic was introduced by the agency that was not part of the original document open for public comment, you have the opportunity to challenge that topic.

In short, it is incumbent on you, the one that submitted comments, to review the document to ensure your comments have been addressed.

Public comment will be accepted until August 27.

The FEIS can be viewed at: http://www.marines.mil/unit/29palms/las/Pages/default.aspx

Cal4Wheel Urges Restoration of Grants Funding
FWS to expand hunting opportunities
 

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