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12 minutes reading time (2492 words)

NRC Report December 2010

As 2010 draws to a close, there is one important point that will carry over into the new year.  Budget issues have risen to be the major policy issue to be addressed by the in-coming 111th Congress.  Budget, spending and debt will drive legislation and management decisions during 2011.  Agencies are expected to be dealing with reduced budgets and staff while the visitors to public lands continues to increase. Overall, budget issues will have a big impact on recreation opportunities.  With the federal pay and hiring freeze, based on previous actions by other administrations, there will be numerous retirements which will reduce the available manpower within the various federal offices and an increased workload.  Of concern is other legislation passed is projected to increase the regulatory requirements within the federal bureaucracy.

And, an Omnibus Public Lands Bill was left on the table reducing the pressure to define more wilderness. The pressure for more wilderness will continue; but, will shift from legislation to administrative action as noted in the recently released change to Department of Interior policy (Secretarial Order 3310) on inventorying suitable "wild lands".

The Giant Sequoia National Monument Plan comment period has finally come to a close.  Given the plan is for a national monument, it is very recreation friendly and does continue to provide a variety of motorized recreation and disbursed camping opportunities.  Almost three years of work in a collaborative process with other recreation interests produced a draft plan that contained two alternatives which were created by the collaborative group; one on them was the Forest Service preferred alternative.  The plan is still subject to appeal and legal challenges before becoming official.

For the past year, USFS Pacific Southwest Research Station has been conducting a day use visitor study in Giant Sequoia National Monument.  I had the opportunity to be one of the pre-publication reviewers of the Study.  The study is expected to be released in early 2011.

Also within the Sequoia NF, the Piute Mountains Travel Management Collaborative Planning is in process.  The Piute Mountains was omitted from the original Sequoia Travel Management as it was part of  a Burn Area Recovery Unit.  USFS is now engaged with the stakeholders to finish that segment of their travel management.

The long anticipated Forest Service Water Quality Management Plan has been delayed.  According to Region 5, the Forest Service portion will be ready in February, 2011.  The current delay (originally due early December) appears to be on the part of the State Water Board for unspecific reasons.

On November 29, a federal judge issued an order in response to the parties' stipulation staying a travel- management related case filed by recreation groups and county officials against the Six Rivers National Forest.

The stipulation noted the ongoing collaborative process on route designation and indicated the Forest expects to release a document for public review in January 2011.  The stipulation also states that the Forest will notify the parties before performing any "ground-disturbing" actions on certain roads, trails and areas.

The parties bringing the suit are Del Norte County, Lake Earl Grange, Del Norte Rod and Gun Club, North Coast Cliffhangers Four Wheel Drive Club, California Association of Four Wheel Drive Clubs, and the BlueRibbon Coalition.

And, there has been a settlement of the Southern California Forest Travel Management Plan. To re-cap, Governor-elect Brown (then Attorney General) filed the lawsuit.  The 2008 lawsuit charged that management plans for the four Southern California forests failed to adequately consider the cumulative impacts of planned and existing roads and trails, including some that had been blazed illegally by off-highway vehicle enthusiasts.

(It should be noted that during the settlement conferences, the examples of “illegal routes” were fire lines plowed in response to firefighting activities.  The fire lines were not completely restored and were used for motorized recreation.)

CBD and other groups were concerned that poor management of those routes, combined with growing demand for motorized recreation opportunities, could degrade the lands and harm an array of sensitive species, including the arroyo toad, California condor, California red-legged frog, California spotted owl, northern goshawk, southern California steelhead trout and southwestern willow flycatcher. Under the  settlement, the Forest Service will re-evaluate its management prescriptions for roadless areas in four national forests -- the Angeles, Cleveland, Los Padres and San Bernardino forests -- and issue a new plan for those areas.

The agency also will fund restoration and road decommissioning projects in roadless areas and refrain from approving road building and other activities that could diminish the areas' chances of qualifying for permanent protection as congressional designated wilderness.

The outcome could have been worse. Recreation won nothing and lost nothing.  The Forest Service will conduct a supplemental EIS and engage in restoration and road decommissioning projects.  Perhaps one good thing to come is the agency will establish a stakeholders group to identify and prioritize needed restoration projects in those areas.  While there have been on-going restoration and road decommissioning projects, they have not been overseen by a stakeholder group.

The recent focus on lawsuits has prompted a number of questions to me from members.  Briefly, to file a lawsuit or not is a tough question.

First, you need to have a reason to seek action through the courts. That means you need to bring forward something that only the court can correct.  Within the US judicial system, you need to demonstrate that you have been personally "harmed" by the action.

With respect to access issues, this translates to you having participated in and exhausted all other alternatives prior to bring your complaint to the courts.

For example, BLM announces that it will be conducting a scoping period to evaluate the potential of changing a land management plan. You need by be involved with the BLM then (actually prior) and through all phases of the administrative process in order to preserve your right of "standing" before the judge to have your complaint heard.

Recreation groups usually find themselves on the side of the agency in order to protect the agency decision from being more adverse to recreation. As an intervener, you do not have access to Equal Access to Justice Act to recoup costs.

To file a case as a plaintiff or as an intervener requires money. A plaintiff can recover costs under EAJA after a decision is rendered. It can take several years to reach a final decision. BRC and CA4WDC are involved in a couple of lawsuits that are soon to reach their 10 year anniversary in the courts with no end in sight.

Often mentioned is handicap issues and the Americans with Disabilities Act.  "Cloudy and vague" is an apt description of the ADA.

ADA does not "require" motorized access to trails. And, it defines "access" in loose enough terms to allowing "access" but under terms that are in keeping with the public lands management plan considering economic and best interests of the public.

If you are within an area that has a need for access due to daily living issues, the law is more inclined to support rebuilding access to accommodate "mechanical devices" where it is in the best interests of the public and economically feasible. Hence, the law can require retrofitting restrooms and other places where the best interests of the public are served to accommodate disability access.

Pushing that same logic to a wilderness route doesn't fly as providing for that type of access puts an unreasonable expense on the land management agency and it conflicts with the land management plans which considers the best interests of the public.

So, the law says that wheel chairs are not prohibited from the wilderness; however, the agency is not compelled to provide special accommodations to allow for wheelchair access as providing that type of access is counter to the overriding public good assigned by the wilderness designation and the land management plan.

In short, it is easy to say “file a lawsuit”. It is another thing to have a case where there is a high probability of success. There are two things you do not want: 1. the court to dismiss your lawsuit. 2. the court to issue a ruling against your position that sets a precedence for similar cases before that court or other courts.

The California State BLM Director has notified all District/Field Offices that events are to be adequately "staffed".  Due to that verbiage, California Desert District is proposing a strict review of permits that among other points, says the permitted events will not be allowed on holiday weekends.  Their rational is supported by a "check-sheet" (they are using the term "matrix") that lists actions and provides a score. Running through a sample scoring, I believe that no event will escape a cost recovery effort and all events will require at least one BLM staff on-site for the duration of the event.

This may be an extreme interpretation as it is based on a sheet that BLM is requesting comment from interested members of the public. To that extent, the black-out dates are not "official" at this time.  The proposed event stipulations appear to focus on "promoters" and speed/competition events.

As it stands now, the Desert Advisory Council has set a Jan 14, 2011 date for public to submit comments on the proposed rule changes.

There are a number of issues surfacing concerning the application for and execution of a permitted event. There are three primary government entities involved: US Forest Service, Bureau of Land Management, and California State Parks.  For purposes of this discussion, I am going to set aside National Park Service.

California State Parks permit instructions are based on having a "brick and mortar" establishment and operating as a concession. Recreation permits are forced into an odd structure of verbiage that does not correctly address the issues.  For the most part, the process, while problematic, does work with minimum impact to recreation.  The biggest cross-over issue is insurance and the verbiage contained on insurance endorsement/certificate.

The major issues reside with USFS and BLM.  The focus of this discussion will address the growing issues with the federal agencies.  Within the USFS and BLM, there are common issues and each has its own set of issues.

First, USFS...

The USFS is pushing for cost recovery on all events.  To date, AMA D36 events have been hard hit as an Environmental Assessment is being required for each event.  The focus of the EA is to determine the status of the routes to be used and potential environmental impacts and user conflicts.  The proposed event routes have already been analyzed and designated under the route designation process.

Additional issues concern event insurance and event operating plan.  Currently, there is lack of consistency between the Forests and Ranger Districts concerning the interpretation of rules dealing with event insurance.  Region 5 has provided guidance covering insurance documentation.  Sequoia NF appears to be the only Forest sticking with guidance provided by Region 5 with the major issue revolving around how USFS is listed as an "additional insured' on a policy endorsement.

USFS also requires an "operating plan" to be submitted with each event permit.  USFS does not have a consolidated event permit handbook to ease the application process.  Forest Service has recently established a web site with a specific focus on Special Use Authorization - http://www.fs.fed.us/r5/specialuses/.

Next, BLM... Since the August accident in Johnson Valley, BLM has been tightening their event permit application and execution process.  All facets of the BLM permit process are under review. BLM does have a permit handbook and they have acknowledged it is a sound document and they see no need to change it. However, the California Desert District is in process of developing extra stipulations to be applied to a permit along with a "scoring" system to establish a "risk category" to help determine staffing requirements.

Like USFS, BLM is reviewing all proposed event routes for potential environmental impacts and potential user conflict.  CDD has a completed system of designated routes and a majority of BLM events are held within designated OHV open areas. (Note: CA4WDC Panamint Valley Days is one of the few events held in limited-use areas.)

Like USFS, additional issues concern event insurance and event operating plan.  Currently, the BLM handbook provides the guidance each BLM Field Office for interpretation of rules concerning application
for and execution of event permits.

BLM also requires an "operating plan" to be submitted with each event permit.  Within BLM interpretation, permits are commercial and non-commercial.

Noncommercial Use means a recreational activity on public land or related waters where actual expenses are shared equally among all members or participants. Any person, group, or organization seeking to qualify as noncommercial must establish to the satisfaction of BLM that no financial or business gain will be derived from the proposed use. Fund raising, for any purpose, renders an activity a commercial use. According to BLM definitions, CA4WDC events are commercial.  Some member club events may be noncommercial.

The core issues of concern with respect to event permits whether USFS or BLM are: 1) cost recovery, 2) insurance, and 3) operating plan.

1) Cost recovery - this is triggered when time required to process permit and execute the permit exceed 50 hours of staff time.  Staff time is recorded when the permit is reviewed.  If an EA is required to determine suitability of proposed event routes, that review time can easily exceed the 50 hour time limit.  If on-site staff is required, that can easily exceed the 50 hour time limit.

2) Insurance - while current issues revolve around ensuring the proper names and addresses are recorded on the policy endorsement, there is an underlying issue that has not been broached.  The insurance is a liability type.  The agency may require a bond to be posted to cover possible environmental damage.  To date, this has not been required for CA4WDC events.

3) Operating Plan - previous practice has laid little emphasis to an operating plan for the event on part of the agency.  However, it appears there is a growing emphasis to review the event operation plan prior to issuing a permit.  USFS and BLM have templates available for what the agency expects to see in an operating plan.

Remember that my opening paragraphs discussing budget and potential impact on recreation.  Agencies are expected to be dealing with reduced budgets and staff while the visitors to public lands continues to increase.  Cost recovery from permits is one avenue where the agency can bring in money to help off-set expected budget shortfalls.

Finally, efforts by the Tierra del Sol 4 Wheel Drive Club of San Diego are due proper recognition.  After a couple years of planning, work has started on a 4x4 obstacle course in Ocotillo Wells SVRA,  TDS has partnered with WE Rock to design the course and build it with cooperation and assistance of volunteers and Ocotillo Wells SVRA.  The course is expected to be completed and open by first weekend in March 2011.

2011 will be an interesting year.

Is Growing Trees Coming Back?
CA4WDC BOD Meeting - Nov 20-21, 2010
 

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