- While the law requires that off-road vehicle use in some Park System units are permissible only after it has been determined that that use would not adversely affect natural wonders, the NPS is permitting such use without having made that determination or following other legal requirements.
- While off-road vehicles may not be legally permitted in other units, the NPS is doing so.
- While the law requires that the NPS issue regulations establishing procedures to enforce compliance with off-road vehicle use, the NPS has failed to do so.
- While the law requires that the NPS monitor the effects of off-road vehicle use, the NPS has little or no monitoring.
When asked in a rulemaking petition to address these issues by regulatory action, the NPS leadership denied the petition, except that they promised to study one of the issues further. Yet five years have already passed since the rulemaking petition was filed. And the NPS leadership refused to take immediate action to prevent further damage while those studies were conducted.
In 2004, the NPS conducted its own internal survey, which demonstrated widespread problems arising from ORV use. As only one example, that survey revealed that non-permitted off-road vehicle use is rampant throughout the National Park System
➢ More than 90 National Park System units reported illegal off-road vehicle use. More than 70 units reported that this illegal use adversely affects natural and cultural resources and creates conflicts among visitors. For example:
- Appalachian National Scenic Trail (Maine to Georgia): "[Illegal off-road vehicle use] is one of our most pernicious management problems. . . . [T]here are recognizable environmental impacts, resource degradation, and visitor use conflicts."
- Grand Canyon National Park (Arizona): "The impact of [off-road vehicle] use in the park ranges from impact damage to vegetation and soil, damage to gates and signs, and gun shots to government property. Litter and subsequent damage to other areas where users have gone without proper permitting includes camping [in] out of bound areas, human waste issues, and [Archaeological Resources Protection Act] violations, etc."
- Mount Rainier National Park (Washington): "Recognizable environmental impacts [of off-road vehicle use] include trails created in wilderness areas. . . . Soil erosion and plant damage occurs in the area of use."
- Olympic National Park (Washington): "The easily recognizable impacts [of illegal off-road vehicle use] are the torn up trail and vegetation where the off-road vehicles have traveled. . . . [The users] seem to like to go in and out of stream crossings, tearing up the river banks and stripping them of vegetation and destroying the trail tread. There are conflicts and danger when these users encounter other hikers and horse users."
- North Country National Scenic Trail (New York to North Dakota): "Deeply rutted and greatly widened trails are visible in many areas where [illegal off-road vehicles] regularly use the North Country Trail. Severe erosion is evident in many areas, especially near streams. It makes for a very unpleasant hiking experience and these section of the trail are getting less and less use by hikers. What's more, the North Country Trail Association volunteers who build and maintain these sections are demoralized by the damage done."
➢ Many other units could not say what damage is being done by off-road vehicle use because they lack the staff or funding or procedures to monitor such use and to enforce existing rules. Executive Order 11644 requires the NPS to establish procedures for enforcing restrictions on off-road vehicle use and to monitor the effects of off-road vehicle use on lands under its jurisdiction.
Nevertheless, the NPS has failed to establish enforcement procedures or a standardized program for monitoring the effects of off-road vehicle use across the National Park System.
➢ Another example: under Executive Order 11644, the NPS may designate a route or area for off-road vehicle use only if it determines that such use "will not adversely affect [its] natural, scenic, or aesthetic values." And under 36 C.F.R. § 4.10, the NPS may permit off-road vehicle use only by issuing a regulation for a particular unit that designates the areas and routes where off-road vehicle use is permitted.
Nevertheless, the NPS permits off-road vehicle use in at least 8 units without having issued a regulation and without having made the required determination of no adverse affects.
- When confronted with these facts, the NPS refused to take immediate action, choosing instead to allow this form of illegal off-road vehicle use to continue while the NPS "evaluates" the issue, which could take years. And the standard being applied by the NPS leadership in those evaluations is not the standard imposed by law - whether those are "adverse affects" - but instead whether the adverse affects are "considerable."