Detailed Analysis of SUWA v DOI Settlement – Part 2 – Extensive and Additional Documentation Mandates

Most OHV advocates believe the more documentation a federal land manager does the better.

Generally, extensive documentation means it is more difficult for radical environmental litigants like SUWA to prevail when, not if, they challenge OHV plans in the courts.

Indeed, the unhappy situation here is the result of a failure of Utah BLM’s Richfield Field Office to include sufficient documentation of the planning team’s efforts to comply with the agency’s so-called “Minimization Criteria.”

However – As we noted in our Conclusion and Quick Summary (here),

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.

Some of the additional requirements mandated by the settlement 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 “wilderness suitability.”

Importantly, the pending settlement mandates the use of 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 revision has not even started because 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 requires a preliminary evaluation of each route being considered for designation. (Paragraph 16(c) – Page 9)
  • Prior to consideration, each route or route segment must consider and document any known user or resource conflicts. (Paragraph 15(b) – Page 9)
  • Additional opportunity for public review of route evaluations including requiring the publication of an appendix to BLM’s traditional Travel Management Plan Scoping Report, with copies of all public and stakeholder correspondence received to date (unless prohibited by law) and the publication of draft route reports (see below). (Paragraph 16(d) – Page 10.)

Documentation Requirements
The pending settlement adds extensive documentation requirements to BLM’s planning process. For example:

  • Requires documentation of resources, including wilderness characteristics, that may be affected “regardless of whether BLM administers or manages the subject public lands to maintain or enhance those resources.” (Paragraph 17(b) – Page 11.)
  • Requires documentation of “all known current motorized and non-motorized use that occurs on the route.” (Paragraph 17(a) – Page 11.)
  • Conditions that show routes are reclaiming and/or impassible must be documented. (Paragraph 17(a) – Page 11.)
  • 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 pending settlement also 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.

“d. Route-specific minimization alternatives. BLM will document in the route report how each alternative route designation will “minimize damage” to affected “soil, watershed, vegetation, or other resources of the public lands,” 43 C.F.R. § 8342.1(a), including identified cultural resources and public lands with BLM-inventoried wilderness characteristics. In each route report, BLM will include a brief narrative summary of how it has applied the designation criteria to the route for each alternative route designation.” (Paragraph 17(d) – Page 11) (Bold emphasis added)