2 Key Topics Related to Travel Management in the SUWA v DOI Lawsuit

There are 2 key issues related to the pending settlement in the SUWA v DOI lawsuit that are worthy of additional discussion.

Well, there are more than two. The never-ending always-ongoing quest for more and more Wilderness is another. And there are more, but lets just focus on 2… for now:

  • Compliance with NHPA/Section 106/Cultural-Archeological Clearance
  • The Minimization Criteria.

The Utah district court’s ruling in SUWA v DOI potentially creates a situation where the BLM will be required to conduct a intensive and expensive Class III archeological clearance on most motorized routes. The decision also results in the Utah BLM providing even more documentation regarding how it applied the “minimization criteria.”

Here is one way to describe BLM’s approach to compliance with the minimization criteria:

Previously, the policy was “keep routes open unless there is a compelling reason for closure.” As a result of this and other litigation, the policy has now changed to “close routes unless there is a compelling reason to keep them open.”

We will have additional posts on how the pending settlement addresses these two issues soon.

Details on these two topics below…

Topic 1: Compliance with NHPA/Section 106/Cultural Clearance

Compliance with the National Historic Preservation Act. Also known as “Section 106” and/or “cultural clearance.”

The cultural clearance issue can be a huge problem, as anyone who has attempted to conduct a competitive event or even a OHV Jamboree knows.

Federal land managers work with State Historic Preservation Officers (SHPO) to administer the national historic preservation program and ensure compliance with the National Historic Preservation Act. This is usually done via a Memorandum of Agreement (or Memorandum of Understanding) between the federal agency and the SHPO in each State.

The original district court ruling found:
the BLM violated the NHPA (National Historic Preservation Act) by failing to take into account the impact of OHV routes on archeological sites;

BLM is in the process of addressing this shortcoming via the creation of a “Programmatic Agreement addressing the National Historic Preservation Act responsibilities for travel and transportation management.”

The BLM is working with the Utah State Historic Preservation Office and other stakeholders under the auspices of its Utah Resource Advisory Council. The latest draft of the Programmatic Agreement can be obtained by contacting the BLM.

The analysis of the ruling from the BlueRibbon Coalition (BRC) noted the ruling’s far reaching and potentially devastating effects on travel management. BRC noted the courts ruling is being interpreted as a mandate to conduct a Class III archaeological survey of every linear foot of a huge percentage of designated routes. Previously, BLM required the Class III cultural survey for new routes or for activities that require a permit. If a route has existed on the ground, (most routes on BLM’s travel plans have existed for many decades) the BLM conducted cultural surveys only on an “as needed” basis.

The 2013 district court decision could raise the bar considerably by essentially requiring the Class III surveys on most open motorized roads or trails. Hopefully, the new programmatic agreement will provide a manageable solution.

For more information we highly recommend this opinion piece on the impacts of this ruling:
SUWA Lawsuit Analysis: Bureaucratic Process Trumps Common Sense

Topic 2: Minimization Criteria

What is the Minimization Criteria?
In 1978, the BLM promulgated a regulation (43 C.F.R. § 8342.1) which governs the designating of OHV routes on public lands. The regulation provides:

The authorized officer shall designate all public lands as either open, limited, or closed to off-road vehicles. All designations shall be based on the protection of the resources of the public lands, the promotion of the safety of all the users of the public lands, and the minimization of conflicts among various uses of the public lands; and in accordance with the following criteria:

(a) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, air, or other resources of the public lands, and to prevent impairment of wilderness suitability.
(b) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats. Special attention will be given to protect endangered or threatened species and their habitats.
(c) 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. (43 C.F.R. § 8342.1(a)-(c))

Although the regulations were finalized in 1978, it is only recently that environmental litigants have included the minimization criteria as a key pillar in their legal challenge to travel plans.

One way to describe BLM’s approach compliance with the minimization criteria is this:

Previously, the policy was “keep routes open unless there is a compelling reason for closure.” As a result of this and other litigation, the policy has now changed to “close routes unless there is a compelling reason to keep them open.”

I believe the Utah Instruction Memo 2012-066 was created in response to this lawsuit and in realization that each Field Office had its own approach regarding how to adequately document the compliance with the minimization criteria. (Utah BLM’s link to the 2012 IM isn’t working at the time, but we are working on providing a link here on 5MOF. Stay tuned, or request a copy from your local BLM Field Office.)

Unfortunately, the district court found the Richfield Field Office failed to adequately document their approach to this issue. It is important to understand that other Field Offices in Utah had a different approach for documenting their compliance. The 2013 district court’s ruling concerned only the administrative record for the Richfield Field Office, however, the pending settlement applies to other field offices.

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