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Press RoomUPDATED! BRC'S REVIEW OF PROPOSED FOREST SERVICE OHV RULE
September 7th, 2004
Contacts:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  This trail marker is a "sign" of managed OHV recreation. Click image to enlarge.  This kiosk is a "sign" of a well-managed OHV program. Click image to enlarge.  This cattle guard/trail structure is a "sign" of managed OHV recreation. Click image to enlarge. ** NEW ISSUE IDENTIFIED BY BRC LEGAL TEAM ** ADDITIONAL COMMENT SUGGESTIONS ADDED BRC's Legal Team has uncovered possible pitfalls contained in the Proposed Rule that could have a negative affect on the full-sized 4X4 vehicle community (i.e. Jeeps, Land Rovers, SUV's etc) BRC's Legal Team has consulted with Carla Boucher, attorney for the United Four Wheel Drive Associations and all agree the FS OHV Rule contains potential problems for the full sized 4X4 enthusiast. We have updated our comments and analysis accordingly. The potential problem is the agency could inadvertently exclude one class of vehicle from legally traveling on Forest Service trails because the term "OHV" is a) not defined, and b) used inconsistently. The point is this: the Forest Service MUST realize that the universe of OHV users is a large and diverse group and the agency must plan accordingly. Forest managers need to provide opportunity for single track motorcycle riders, ATV enthusiasts and for those who enjoy full sized 4x4 vehicles like Jeeps and SUV's. It is of VITAL important that the FS gets this message. In response to requests for additional comment suggestions and a email comment letter generator I've just activated BRC's RAPID RESPONSE CENTER. There you will find a revised comment letter on the important FS OHV Rule. Click here: http://capwiz.com/share/mail/oneclick_compose/?alertid=6328041 Thanks in advance for your involvement. Brian Hawthorne Public Lands Director BlueRibbon Coalition ~~~~~~~~~~~~~~~~~~~~ UPDATED! BlueRibbon Coalition review of Forest Service of OHV rule. ~~~~~~~~~~~~~~~~~~~~ This information summarizes BRC's point-by-point analysis of the Proposed Rule published in the July 15, 2004, Federal Register (69 Fed.Reg. 42381) by the U.S. Forest Service entitled Travel Management; Designated Routes and Areas for Motor Vehicle Use (the "Proposed Rule"). This analysis is designed to help you participate in the rulemaking and fully understand its affects on your recreational lifestyle. Please do not underestimate the importance of this rulemaking. Given its potential effects to the OHV community, this could be the single most important Forest Service planning initiative in decades. On balance, we believe the Proposed Rule represents a carefully-reasoned effort to bring necessary guidance to USFS OHV management. The agency has been reasonably responsive to the concerns and input we have provided through this point of the process. Trust me on this, without the involvement of BRC and other OHV organizations during the early stages, this Proposed Rule would have been considerably worse. Further input by those most affected by the rule will improve and otherwise serve to refine aspects of the Proposed Rule. **READ THAT AGAIN** It's YOU that's going to be affected by this policy. YOUR attention to this issue is VITAL! As I write this message, the anti-access crowd is in Washington D.C. preparing to distribute glossy 4-color press kits to an eager media. Their foundation funded lobbyists are already making appointments with key administration officials and Forest Service employees. Their obvious intent is to alter the proposed rule so that it becomes a CLOSURE SCHEME. Our apathy, our lack of knowledge and our silence will allow them to succeed. Let's work together to disappoint them, shall we? If you do your part, I promise we'll do ours. We are asking you to forward this email to as many OHV enthusiasts as possible. Encourage your friends and family to log on to our website and get involved. Call the leadership of your local OHV club and get the phone tree's and email networks fired up! The comment deadline is set for Sept. 13, 2004. For your convenience, and to facilitate your efforts to get your friends and family involved, we've pasted some in depth info below. ~~~~~~~~~~~~~~~~~~~~ FOREST SERVICE PROPOSED OHV RULE ANALYSIS: THE GOOD, THE BAD, AND THE UGLY ~~~~~~~~~~~~~~~~~~~~ This summarizes BRC's point-by-point analysis of the Proposed Rule published in the July 15, 2004, Federal Register (69 Fed.Reg. 42381) by the U.S. Forest Service entitled Travel Management; Designated Routes and Areas for Motor Vehicle Use (the "Proposed Rule"). This analysis is designed to help you participate in the rulemaking and fully understand its affects on your recreational lifestyle. The Forest Service is accepting public comment on the draft rules through Sept. 13 by mail to: Proposed Rule OHV's c/o Content Analysis Team P.O. Box 221150 Salt Lake City, UT 84122-1150 by e-mail to trvman@fs.fed.us and by fax at (801) 517-1014 ~~~~~~~~~~~~~~~~~~~~~ WHAT IT IS: The Forest Service proposes to amend regulations regarding travel management on National Forest System lands to clarify policy related to motor vehicle use, including the use of off-highway vehicles. The proposed rule would require the establishment of a system of roads, trails, and areas designated for motor vehicle use. The proposed rule also would prohibit the use of motor vehicles off the designated system, as well as motor vehicle use on the system that is not consistent with the classes of motor vehicles and, if applicable, the time of year, designated for use. As part of this effort, the Forest Service is proposing revisions to 36 CFR parts 212, 251, 261, and 295 to provide for a system of National Forest System roads, National Forest System trails, and areas on National Forest System lands designated for motor vehicle use. Detailed information is availble from the Forest Service on their website: http://www.fs.fed.us/recreation/programs/ohv/ ~~~~~~~~~~~~~~~~~~~~ THE GOOD: * The proposed rule presents broad policy, not "top-down" management. The Proposed Rule establishes a nationwide policy that vehicle travel on Forest Service-managed lands will occur only on designated roads, trails and areas. Mainstream OHV organizations, including BRC, support this policy. However, many good policies can become bad rules through inflexible promulgation from the agency's Washington Office. The Forest Service has been mindful of, and has largely avoided, these potential flaws in adopting the Proposed Rule. ~~~~~ * The proposed rule avoids unreachable mandates for route designations. The Proposed Rule contains no ridged unworkable mandates insofar as when any Forest must proceed with road, trail and area designation. BRC strongly support this aspect of the Proposed Rule. One can accurately assume that the agency will not, or more accurately stated, can not comply with a timeline. We make this statement not to belittle or demean the Forest Service or any other agency, but as a reflection of our modern administrative state based on our experience in dozens of rulemakings and planning processes involving both judicially and administratively-imposed timelines. It is essential that the Proposed Rule retain maximum flexibility and avoid inclusion of any timetable for the route designation process. ~~~~~ * The proposed rule creates opportunities to include "user created" routes in the formal designation process but places the onus on recreationists to identify such routes. The Forest Service acknowledges that significant numbers of uninventoried routes exist and may provide legitimate recreation opportunities. A critical question is the manner in which presently uninventoried routes will be treated in the designation process. The agency and anti-access forces frequently raise concerns about "user-created" routes and at least imply that such routes are illegal and must be eliminated. However, many routes were legitimately formed during "open" management. Many of these routes provide desirable and valuable recreation opportunities. In some instances, these uninventoried routes might even provide a better overall access solution than inventoried or formally-approved alternatives. Importantly, some forests have woefully deficient inventories which fail to even include or properly locate some Forest-managed trails, let alone valid "user-created" routes. It is therefore essential that OHV enthusiasts have a reasonable opportunity to have presently uninventoried routes considered and approved during the designation process. Indeed, the recreating public has invaluable information that will be essential to formulating manageable trail systems. While it will seem frustrating to many tax- and fee-paying vehicle users to be forced to present route information to the agency, the end result of this approach should result in much more desirable designated trail systems. ~~~~~ * The proposed rule contains important provisions acknowledging the legitimacy of OHV recreation and access. Such recognition is often lacking and OHV enthusiasts should note and support these references to OHV access as an integral element of the valid multiple uses of our Forests. ~~~~~ * The proposed rule attempts to clarify interpretation of executive orders which are often used by the anti-access crowd to close trails. The anti access crowd often argues to judges and the agency that vehicle-oriented "user conflict" not only should, but must, result in the elimination of the relevant vehicle access. In some instances anti-access forces have implemented carefully-orchestrated campaigns to create and document such "conflict" by writing letters and submitting comments to the agency voicing subjective displeasure with the mere presence of motorized vehicles. But the Executive Orders properly address only "conflicts of use" not "user conflict", referring primarily to the situation where physical resources cannot properly accommodate one or more uses simultaneously. The Proposed Rule attempts to properly clarify the Executive Orders. ~~~~~ * The proposed rule presents a "wake up call" to the OHV community regarding the management of OHV use. The rule places a responsibility on the OHV community to reach out and develop relationships with forest service personnel when developing and verifying route inventories and in subsequent travel management planning. in short, there are no more excuses for the OHV community. We must get involved or the gates will be locked tight. ~~~~~ * The proposed rule contains a snowmobile exemption. BRC supports this provision. ~~~~~~~~~~~~~~~~~~~~ THE BAD: NEW ITEM: ** OHV RULE CONTAINS POTENTIAL PITFALL FOR FULL SIZED 4X4'S BRC's Legal Team has consulted with Carla Boucher, attorney for the United Four Wheel Drive Associations and both agree the FS OHV Rule contains potential problems for the full sized vehicle enthusiast. The problem is that there appears to be a flaw in the definition of OHV as well as an inconsistency in the way the term "OHV" is used. The potential problem is the agency could inadvertently exclude a certain class of vehicle from Forest Service roads and trails because the term "OHV" is a) not defined, and b) used inconsistently. The point is this: the Forest Service MUST realize that the universe of OHV users are a large and diverse group and the agency must plan accordingly. Forest managers need to provide opportunity for single track motorcycle riders, ATV enthusiasts and for those who enjoy full sized 4x4 vehicles like Jeeps and SUV's. BRC has updated our comment suggestions accordingly. ~~~~~ * The proposed rule creates significant and unprecedented logistical and legal challenges for the agency. The proposed rule is supposedly motivated by a desire to address "unmanaged recreation" but this concern will not be addressed simply by adoption of any nationwide rule. The organized OHV community should support the proposed rule only on the condition that a firm commitment to recreation management accompanies a final rule. ~~~~~ * The proposed rule leaves the inventory process to the discretion of local land managers. The rule plainly allows managers to accept public input identifying uninventoried routes and to consider formal designation of such routes for vehicle travel. However, the proposed rule does not explicitly address the question of the degree, if any, of forest service inventory activity that will precede any designation process. Thus, under the proposed rule uninventoried routes may be considered for designation but the onus will fall on interested members of the public, not the agency, to identify such routes. ~~~~~ * The proposed rule does nothing to alleviate unlawful abuse of emergency order powers. Unfortunately, many land managers have seized on the "emergency" closure authority to effectively bypass a formal public planning process, implementing immediate closures that have lasted for years and which have been extremely difficult for OHV enthusiasts to effectively challenge. If anything, the Proposed Rule adds to this concern. ~~~~~ * The proposed rule presents a "wake up call" to the OHV community regarding the management of OHV use. Now, for those of you paying attention, you will notice this is the same issue we presented in "THE GOOD" part of the analysis. Why? Because, while Rule give opportunity to the OHV community to reach out and develop relationships with Forest Service personnel, it also has the potential to really hurt us if we don't. IF WE FAIL TO GET INVOLVED THE GATES WILL BE LOCKED TIGHT! ~~~~~ * The proposed rule creates discretionary authority for some forests to more formally restrict snowmobile access to designated routes and areas. The Proposed Rule includes "snowmobile" in the ORV regulatory scheme, but exempts snowmobiles from the proposed mandatory designation policy. However, local managers could elect to designate routes or areas where snowmobile use would be allowed, restricted or prohibited by using the designation process outlined in Proposed Sections 212.52-212.57. ~~~~~~~~~~~~~~~~~~~~ THE UGLY The anti-access crowd is pushing hard to morph this rule into a top-down, impossible-to-implement, one-size-fits-all management nightmare. They do not seem sincere in their statements about wanting only to limit OHV's to properly designated roads and trails. The upshot of their proposal is to close all OHV routes immediately. They demand every 'olo-gist in the world sign off on every liner millimeter before allowing any vehicle use. They are pushing hard for the impossible to achieve "no impairment" standard for OHV trails. Naturally, they demand the Forest Service complete all of that within a two year timeframe. Miss it by one minute, and you can bet the farm they'll be in the federal courts petitioning for immediate and final elimination of OHV use. Let's disappoint them, shall we? ~~~~~~~~~~~~~~~~~~~~ COMMENT SUGGESTIONS * I am submitting these comments to the Forest Service's Proposed Rule entitled Travel Management; Designated Routes and Areas for Motor Vehicle Use, published in the July 15, 2004, Federal Register (the "Proposed Rule"). Like many individuals and families throughout the country, I rely on vehicle access to our National Forests to enjoy my chosen outdoor recreation. I generally support the Proposed Rule and a policy of vehicle access to designated roads, trails and areas, but believe several clarifications or changes are necessary. * On the positive side, I strongly support the Proposed Rule's recognition of vehicle-oriented recreation as a legitimate use of our National Forests which must be reasonably balanced within the agency's multiple-use mandate. I also strongly support the Proposed Rule's approach of providing broad national policy guidance while leaving the details of any decisionmaking process to the discretion of local land managers. The agency must reject the likely pressure from anti-access forces to create a deadline for the designation process or to create specific "one size fits all" management prescriptions through this rulemaking. It is inappropriate and unworkable to dictate on-the-ground management changes through a nationwide OHV rule. * I appreciate the need for flexibility in the inventory and planning process. The rule should be modified, however, to require the agency to acknowledge and fully act upon its responsibility to complete an inventory of all existing roads and trails. I agree that the public should be allowed to provide early input into this process, specifically including identification of legitimate but uninventoried routes. I strongly oppose any national or local deadline or timetable for inventories. The final rule should continue to acknowledge and further clarify the importance of user contributions to an accurate route inventory process before any formal route designation. * I strongly oppose any "planning via emergency order". Some public land managers improperly avoid the public travel planning process by instituting a patchwork of "temporary, emergency" closures that continue indefinitely. Any significant change in travel planning MUST be made via a lawful and public planning process. The agency's "emergency" closure authority must be better defined and limited in the Proposed Rule. The final rule should clarify that closures without public notice and input under 36 C.F.R. 212.52(b) must be documented by publicly-available monitoring and analysis that identifies the specific impact(s) and vehicles or uses causing those impact(s) to be addressed by the closure and cannot remain in effect for more than one year without formal analysis. * Please make sure the final rule clarifies that segments of any road may be designated for use by non-street legal vehicles where appropriate to avoid blanket prohibitions of non-street legal OHV use on roads such as Level 3 roads. Often, OHV users must use level 3 roads to connect trails in order to make a "loop". * Please realize that the universe of OHV users are a large and diverse group and the agency must plan accordingly. We understand the agency was motivated to begin this planning effort primarily because of the increase in popularity of ATV's, however, ATV's represent only one component of OHV use now occurring on public lands. Forest managers need to provide opportunity for single track motorcycle riders, ATV enthusiasts and for those who enjoy full sized 4x4 vehicles like Jeeps and SUV's. Please make sure the final rule clarifies that any trail may be designated for use by street legal vehicles where appropriate to avoid blanket prohibitions of street legal OHVs, particularly 4x4s and SUVs, on all road and trails. * I am concerned about the agency's commitment to effective implementation of any OHV rule. The rule is supposedly motivated by a need to address "unmanaged recreation" but good management will not flow from a whisk of a pen in Washington, D.C. Any final OHV rule must be accompanied by adequate budget, staffing, and priority to achieve critical on-the-ground goals. I am willing to ride on properly-designated roads, trails and areas, so long as the agency makes available adequate maps and material necessary to inform motorized and nonmotorized visitors to the National Forests. Active and appropriate enforcement is also a key ingredient in a reasonable managed recreation system. The agency's allocation of budget, staff and management effort should reflect the developing reality that outdoor recreation provides a greater good for more Americans than any other aspect of its multiple-use mandate. The time has come to make managed recreation the Service's top priority. |