Long-Anticipated Forest Service ORV Rule: Fizzles on Protection
The long-awaited off-road vehicle planning rule began as a well-intentioned effort to address one of the four key threats outlined by Forest Service Chief Dale Bosworth in a speech in January of 2004: unmanaged recreation.
“Each year, the national forests and grasslands get hundreds of miles of unauthorized roads and trails due to repeated cross-country use. We’re seeing more erosion, water degradation, and habitat destruction. We’re seeing more conflicts between users. We have got to improve our management so we get responsible recreational use based on sound outdoor ethics,” the Chief relayed to a meeting of the Idaho Environmental Forum in Boise.
The rule is already long overdue. Presidents Nixon and Carter recognized the threats to public lands from unmanaged off-road vehicle use in the 1970s — more than thirty years ago. They issued two Executive Orders (#11644 and #11989) that guide off-road vehicle use to this day. They clearly state:
“(1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands.
(2) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats.
(3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses…”
But, the final rule not only lacks the teeth it needs to effectively deal with the explosive growth in off-road vehicle abuse on our national forests, it seems to de-claw the Executive Orders themselves. In addition, the agency decided to keep the old rules for snowmobiles, while this rule applies to wheeled off-road vehicles.
Cross Country Travel
The new rule would close Forest Service land to off-route cross-country travel, except in small and limited areas. Currently, 69 million acres, roughly one-third of the land managed by the Forest Service, is open to cross-country travel. That’s right — ride in any direction, over any species, through any habitat — and it’s legal, if morally indefensible. The rule set out to address cross-country travel and other off-road vehicle concerns, but fell short in many ways. In particular, the new rule may allow many user-created, renegade routes to be designated without requiring site-specific analysis, and it could make it more difficult to address resource impacts and minimize user conflicts.
More importantly, the agency left open two key loopholes large enough to drive a fleet of off-road vehicles through, if district rangers choose to leave those loopholes open. First, although the rule requires national forests to close most land to cross-country use, it delays the action until the forest — or even a ranger district — revises its travel plan, and it sets no timeline for revisions (though the Chief says he expects Supervisors to complete this work in four years). This could mean many more years of legalized renegade and cross-country use. Second, the rule also includes a provision allowing forest managers to permit dispersed camping and/or game retrieval off designated routes. While every forest won’t choose to do this, it is allowed under the new rule and off-road vehicle users will push hard for such provisions. It is possible the agency will include some sidebars on such authorizations in the guidance they are now preparing to help managers implement the rule.
Inconsistencies with the Executive Orders
The new rule reinterprets the Executive Orders’ mandate significantly, by directing agency staff to designate routes “with the objective to minimize” impacts of off-road vehicles instead of simply designating routes “to minimize” those impacts. By changing this language, the agency went from a mandatory obligation to minimize impacts to an unquantifiable objective. This could be interpreted to mean that the agency no longer has a legal obligation to minimize impacts, and it certainly does not satisfy the intent of the Executive Orders.
The new rule also allows off-road routes to be reopened if their considerable adverse effects are “mitigated,” where the Executive Orders require that such effects must be “eliminated” before use can be allowed again. The Forest Service maintains that mitigation and elimination are synonymous by arguing that “mitigation of adverse effects has the net effect of elimination of adverse effects . . .” Mitigation, however, is defined as lessening or moderating the severity of an impact, not eliminating it. This again removes clarity and enforceability from the plain language of the Executive Orders.
Scope of Implementation
The rule allows off-road vehicle route designation to occur at a scale smaller than forest-wide, leading to potentially serious problems with consistency within and across Forest Service boundaries. The Forest Service’s stated goal is to make off-road vehicle rules more consistent nationally, but if units as small as individual Ranger Districts are allowed to plan on their own, the results can’t help but be inconsistent. If one Ranger completes designations in his/her district, and the adjacent Ranger does not, the inconsistency remains even within a single forest.
Game Retrieval and Dispersed Camping
One of the most troubling provisions in the rule gives individual forests the authority to waive the cross-country travel ban for game retrieval and/or dispersed camping. Dispersed camping exemptions allow vehicles to drive 300 feet off any route to reach a campsite, no matter if it would require crossing meadows, wetlands, riparian corridors, or streams themselves. While dispersed camping occurs year-round, it tends to be heavy during hunting season. Similarly, off-road vehicle users often create renegade routes by driving to their kill-site to retrieve an animal. Where such exemptions are granted, renegade routes could proliferate. In addition, this exemption could open up relatively secure habitat to increased hunting pressure if game doesn’t have to be packed out by foot or horse.
Site-Specific Analysis
An important component of off-road vehicle planning is site-specific analysis. If land managers don’t know when or why a route was established, what destination it serves, what condition it’s in, what level of use it receives, and what soils and habitats are affected, they don’t have the information they need to make informed decisions about travel management. Unfortunately, the new rule both limits monitoring requirements and fails to clarify when site-specific analysis is required as part of the designation process. This could lead to wholesale designation of routes with little or no analysis under the National Environmental Policy Act. Sadly, this exact scenario is currently playing out on the Fishlake National Forest in Utah, where motor-loving planning staff has neglected adequate analysis in favor of digitizing every track anyone has ever ridden, then proposing more than 400 new miles of unclassified routes for “open” designation. The rule’s failure to require site-specific analysis consistent with NEPA will likely result in a number of lawsuits contending inadequate analysis.
Enforcement
The new rule includes some provisions that will make enforcement easier on the ground. But it also relies heavily on ethics education by the Forest Service and self-policing of off-road vehicle riders while neglecting enforcement and oversight. According to a Utah State University survey, nearly half of riders prefer to ride “off established trails.” Of the ATV riders surveyed, 49.4% prefer to ride off established trails, while 39% did so on their most recent excursion. Of the dirt bike riders surveyed, 38.1% prefer to ride off established trails, while 50% did so on their most recent excursion. A study in Colorado found that “ . . . knowing that going off trail is not ‘correct’ OHV behavior, as many as two-thirds of adult OHV users go off the trail occasionally.” The study concludes: “In a ‘nutshell,’ it is our premise that further information and education per se – will not result in substantial behavioral change” (emphasis in original). Such a pervasive problem demands more enforcement on the ground, not simply “education.”
National leadership for the Forest Service has missed a rare opportunity get control of a runaway problem. The new rule does not reflect the legal mandate of the Executive Orders and does not demonstrate political support for better agency management. In effect, Washington leadership has actually made it more challenging for responsible Forest Supervisors to ensure the promotion and protection of quiet forests, healthy watersheds, abundant wildlife and intact native systems.
Nonetheless, the rule does allow for local discretion and public involvement. Environmental advocates and a broad swath of potential allies — including hikers, hunters, horseback riders, ranchers, and forest neighbors — may be able to awaken agency leadership among District Rangers, Supervisors and Regional Foresters. As administrations come and go, land managers closer to the land will have to make and live with decisions about public land uses, impacts, and conflicts. They will make these decisions as individual forests and ranger districts begin to implement the rule by crafting travel plans and designating off-road vehicle routes. During this critical period, Wildlands CPR will provide grassroots activists and organizations with the strategies, materials, and messages to rally the vast majority (a majority that does not rely on motors to explore and use the forest) to stand up and speak up for the values and benefits of quiet, nonmotorized, wild landscapes.
— Tim Peterson is our new Transportation Policy Coordinator.
“Each year, the national forests and grasslands get hundreds of miles of unauthorized roads and trails due to repeated cross-country use. We’re seeing more erosion, water degradation, and habitat destruction. We’re seeing more conflicts between users. We have got to improve our management so we get responsible recreational use based on sound outdoor ethics,” the Chief relayed to a meeting of the Idaho Environmental Forum in Boise.
The rule is already long overdue. Presidents Nixon and Carter recognized the threats to public lands from unmanaged off-road vehicle use in the 1970s — more than thirty years ago. They issued two Executive Orders (#11644 and #11989) that guide off-road vehicle use to this day. They clearly state:
“(1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands.
(2) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats.
(3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses…”
But, the final rule not only lacks the teeth it needs to effectively deal with the explosive growth in off-road vehicle abuse on our national forests, it seems to de-claw the Executive Orders themselves. In addition, the agency decided to keep the old rules for snowmobiles, while this rule applies to wheeled off-road vehicles.
Opportunities
The final rule does take some positive steps by establishing use maps (see sidebar on page 4), by not requiring that every renegade route be mapped (and therefore, legitimized) as a precursor to route designations, and by shifting management away from large-scale cross-country use.Cross Country Travel
The new rule would close Forest Service land to off-route cross-country travel, except in small and limited areas. Currently, 69 million acres, roughly one-third of the land managed by the Forest Service, is open to cross-country travel. That’s right — ride in any direction, over any species, through any habitat — and it’s legal, if morally indefensible. The rule set out to address cross-country travel and other off-road vehicle concerns, but fell short in many ways. In particular, the new rule may allow many user-created, renegade routes to be designated without requiring site-specific analysis, and it could make it more difficult to address resource impacts and minimize user conflicts.
More importantly, the agency left open two key loopholes large enough to drive a fleet of off-road vehicles through, if district rangers choose to leave those loopholes open. First, although the rule requires national forests to close most land to cross-country use, it delays the action until the forest — or even a ranger district — revises its travel plan, and it sets no timeline for revisions (though the Chief says he expects Supervisors to complete this work in four years). This could mean many more years of legalized renegade and cross-country use. Second, the rule also includes a provision allowing forest managers to permit dispersed camping and/or game retrieval off designated routes. While every forest won’t choose to do this, it is allowed under the new rule and off-road vehicle users will push hard for such provisions. It is possible the agency will include some sidebars on such authorizations in the guidance they are now preparing to help managers implement the rule.
Specific Problems
Inconsistencies with the Executive Orders
The new rule reinterprets the Executive Orders’ mandate significantly, by directing agency staff to designate routes “with the objective to minimize” impacts of off-road vehicles instead of simply designating routes “to minimize” those impacts. By changing this language, the agency went from a mandatory obligation to minimize impacts to an unquantifiable objective. This could be interpreted to mean that the agency no longer has a legal obligation to minimize impacts, and it certainly does not satisfy the intent of the Executive Orders.
The new rule also allows off-road routes to be reopened if their considerable adverse effects are “mitigated,” where the Executive Orders require that such effects must be “eliminated” before use can be allowed again. The Forest Service maintains that mitigation and elimination are synonymous by arguing that “mitigation of adverse effects has the net effect of elimination of adverse effects . . .” Mitigation, however, is defined as lessening or moderating the severity of an impact, not eliminating it. This again removes clarity and enforceability from the plain language of the Executive Orders.
Scope of Implementation
The rule allows off-road vehicle route designation to occur at a scale smaller than forest-wide, leading to potentially serious problems with consistency within and across Forest Service boundaries. The Forest Service’s stated goal is to make off-road vehicle rules more consistent nationally, but if units as small as individual Ranger Districts are allowed to plan on their own, the results can’t help but be inconsistent. If one Ranger completes designations in his/her district, and the adjacent Ranger does not, the inconsistency remains even within a single forest.
Game Retrieval and Dispersed Camping
One of the most troubling provisions in the rule gives individual forests the authority to waive the cross-country travel ban for game retrieval and/or dispersed camping. Dispersed camping exemptions allow vehicles to drive 300 feet off any route to reach a campsite, no matter if it would require crossing meadows, wetlands, riparian corridors, or streams themselves. While dispersed camping occurs year-round, it tends to be heavy during hunting season. Similarly, off-road vehicle users often create renegade routes by driving to their kill-site to retrieve an animal. Where such exemptions are granted, renegade routes could proliferate. In addition, this exemption could open up relatively secure habitat to increased hunting pressure if game doesn’t have to be packed out by foot or horse.
Site-Specific Analysis
An important component of off-road vehicle planning is site-specific analysis. If land managers don’t know when or why a route was established, what destination it serves, what condition it’s in, what level of use it receives, and what soils and habitats are affected, they don’t have the information they need to make informed decisions about travel management. Unfortunately, the new rule both limits monitoring requirements and fails to clarify when site-specific analysis is required as part of the designation process. This could lead to wholesale designation of routes with little or no analysis under the National Environmental Policy Act. Sadly, this exact scenario is currently playing out on the Fishlake National Forest in Utah, where motor-loving planning staff has neglected adequate analysis in favor of digitizing every track anyone has ever ridden, then proposing more than 400 new miles of unclassified routes for “open” designation. The rule’s failure to require site-specific analysis consistent with NEPA will likely result in a number of lawsuits contending inadequate analysis.
Enforcement
The new rule includes some provisions that will make enforcement easier on the ground. But it also relies heavily on ethics education by the Forest Service and self-policing of off-road vehicle riders while neglecting enforcement and oversight. According to a Utah State University survey, nearly half of riders prefer to ride “off established trails.” Of the ATV riders surveyed, 49.4% prefer to ride off established trails, while 39% did so on their most recent excursion. Of the dirt bike riders surveyed, 38.1% prefer to ride off established trails, while 50% did so on their most recent excursion. A study in Colorado found that “ . . . knowing that going off trail is not ‘correct’ OHV behavior, as many as two-thirds of adult OHV users go off the trail occasionally.” The study concludes: “In a ‘nutshell,’ it is our premise that further information and education per se – will not result in substantial behavioral change” (emphasis in original). Such a pervasive problem demands more enforcement on the ground, not simply “education.”
Conclusion
The new Forest Service travel management rule has some key problems that need fixing if the Service is serious about addressing unmanaged recreation. Many of these changes could be made at the regional level, for example, by discouraging the use of exemptions for game retrieval and dispersed camping. Regional Foresters should require site-specific, route-by-route analysis of every path considered for designation. Forests should conduct comprehensive forest-wide travel planning, addressing the designation of both motorized routes and non-motorized trails. If appropriate lands are available, forests should design compact and enforceable networks of off-road vehicle routes, and the extent of the designated route network should be limited to the level of funding for enforcement, monitoring, and maintenance — fewer dollars results in less management capacity and, therefore, should be matched with fewer places where off-road vehicle use is allowed.National leadership for the Forest Service has missed a rare opportunity get control of a runaway problem. The new rule does not reflect the legal mandate of the Executive Orders and does not demonstrate political support for better agency management. In effect, Washington leadership has actually made it more challenging for responsible Forest Supervisors to ensure the promotion and protection of quiet forests, healthy watersheds, abundant wildlife and intact native systems.
Nonetheless, the rule does allow for local discretion and public involvement. Environmental advocates and a broad swath of potential allies — including hikers, hunters, horseback riders, ranchers, and forest neighbors — may be able to awaken agency leadership among District Rangers, Supervisors and Regional Foresters. As administrations come and go, land managers closer to the land will have to make and live with decisions about public land uses, impacts, and conflicts. They will make these decisions as individual forests and ranger districts begin to implement the rule by crafting travel plans and designating off-road vehicle routes. During this critical period, Wildlands CPR will provide grassroots activists and organizations with the strategies, materials, and messages to rally the vast majority (a majority that does not rely on motors to explore and use the forest) to stand up and speak up for the values and benefits of quiet, nonmotorized, wild landscapes.
— Tim Peterson is our new Transportation Policy Coordinator.
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