Conclusion and Quick Summary: SUWA v DOI Settlement

Introduction 
On January 13, 2017 the Bureau of Land Management (BLM) announced a proposed settlement in a longstanding lawsuit filed by the Southern Utah Wilderness Alliance (SUWA) and other environmental litigants.

Link to proposed settlement agreement

Conclusion:
The pending settlement adds to BLM’s already complicated bureaucratic planning process and imposes strict deadlines resulting in a strong likelihood that the BLM will “take the path of least resistance” (i.e. whichever alternative the environmental litigants prefer). Moreover, specific provisions of the settlement seem to drive the outcome of the planning process via its “monitoring” protocol, mandated alternatives and the exclusive ability for parties of the settlement to influence the planning process.

It is reasonable to assume the new travel plans will close a significant percentage of the roads and trails that are currently open for motorized use.

The process puts a very high burden on OHV groups and local communities to provide meaningful public involvement provided in law and regulation. I am strongly convinced that the OHV community, the affected counties and the State of Utah must begin immediately to prepare to participate in the planning mandated by the settlement, even though the settlement has yet to be approved by the court.

Quick Summary of Pending Settlement:

On January 13, 2017 the Bureau of Land Management (BLM) announced a proposed settlement in a longstanding lawsuit filed by the Southern Utah Wilderness Alliance (SUWA) and other environmental litigants.

In exchange for agreeing to dismiss the lawsuit, the pending settlement mandates new travel plans be completed for approximately half of the lands within the Richfield, Vernal, Price, Moab and Kanab field offices. The pending settlement also requires the BLM to evaluate certain proposed new ACEC’s and revise and enhance its rules for analyzing impacts related to oil and gas development. (Paragraphs 29-31 on pages 22-24.)

The ACEC and oil and gas provisions of the pending settlement are not addressed in this review.

Instead of facilitating planning that would address shortcomings identified by the 2013 court ruling, the pending settlement requires the BLM to completely revise its recently completed travel plans in the Richfield, Vernal, Price, Moab and Kanab field offices by certain deadlines.

The pending settlement mandates that a very specific process be followed when formulating the new travel plans. (Paragraphs 15-24 on pages 7-19.) Many of the process requirements mirror existing BLM planning guidance, however, the settlement also adds extensive additional requirements.

Some of the additional requirements seem appropriate insofar as they address the shortcomings identified by the district court’s decision. However, the settlement includes other requirements that seem unrelated to the court’s original ruling, such as inventory and management for wilderness characteristics (instead of preventing “impairment of wilderness suitability”).

Importantly, the BLM intends to utilize a revised version of an Instruction Memorandum (IM) designed to give individual field offices specific direction regarding how they should develop a travel plan. The existing IM was finalized in 2012 and expired in 2013. According to the BLM, the agency’s intent is to incorporate “important aspects” of the pending settlement as well as a draft programmatic agreement addressing compliance with the National Historic Preservation Act. The BLM says if the settlement is approved it intends to finalize the new IM by 9/30/2017.

Among the process requirements mandated by the settlement:

Extensive pre-planning activities
The settlement front loads the alternative development with many pre-planning requirements

Documentation Requirements
The pending settlement requires extensive documentation related to compliance with the minimization criteria and mandates certain specific actions regarding how it will analyze impacts to resources, including wilderness characteristics. It also appears to require the documentation for each action alternative the BLM develops, not just the preferred alternative or final decision.

Importantly, the pending settlement mandates closure if BLM fails to properly document a purpose and need:
“A route without an identified purpose and need will not be pending as part of the dedicated route network in any action alternatives in the NEPA document.” (Paragraph 17(a) – Page 11)

The Unknown and Undefined
The pending settlement includes terms such as “damage” and “adversely affecting” that are not well defined in agency regulations or management guidance.

Monitoring as a tool for closure
The pending settlement includes a mandate to perform extensive “monitoring” prior, during and after the travel planning process in Natural Areas, Wilderness Study Areas (WSA), and “WC areas” (areas managed for Wilderness Characteristics). The type of monitoring mandated represents a huge tactical victory for the environmental litigants who have filed numerous lawsuits seeking to drastically reduce motorized routes (see detailed analysis for more).

Consideration of Considerable Adverse Effects
One item that is already in BLM’s planning and management guidelines is the consideration of “considerable adverse effects.” The pending settlement emphasizes these provisions and requires additional documentation and opportunity for public review. The pending settlement also adds an exclusive opportunity provided only to parties to the settlement to allege considerable adverse effects are or will be occurring. (Paragraph 22 – Pages 17-18)

Court mandated alternatives
The pending settlement mandates at least two specific alternatives be developed. One wouild close every route where “damage” can be said to have occurred to natural and cultural resources, including wilderness characteristics, and another one would close all routes within any Wilderness Study Areas and Natural Areas. And to be absolutely certain we focus on inventory and management of wilderness characteristics, the pending settlement also mandates developing at least one alternative that closes all routes which may “damage” wilderness characteristics. (Paragraphs 17(e) and 17(f) – Pages 11-12)

Elevating additional inventory and management for wilderness characteristics over the regulations requiring the prevention of “impairment of wilderness suitability”
The BLM’s minimization criteria (43 C.F.R. § 8342.1(c)) states that:
(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.

The “suitable and manageable” determination is performed at the land use plan level, and results in establishing specific land use designations such as Wilderness Study Areas or “WC Areas.” The land use plan then develops management provisions regarding the impairment of wilderness suitability issue. Indeed, many argue that the minimization criteria applies only to established WSAs and does not apply for WC areas.

The settlement document contains numerous provisions that allow additional wilderness inventory and management for wilderness characteristics over and above that provided in the minimization criteria outlined in 43 C.F.R. § 8342.1(c) outside of WSAs and WC areas.