Major Federal Laws/Regulations
This is a collection of the most pertinant federal laws and regulations related to the field of land use and Off-Highway Vehicle (OHV) access:
The Wilderness Act of 1964 established a framework whereby Congress may permanently protect land that is essentially undisturbed, retains a primeval character, without permanent improvements and generally appears to have been only affected primarily by the forces of nature. The lands become part of the “National Wilderness Preservation System” which began with 9 million acres and now encompasses nearly 110 million acres. A majority of the wilderness areas are in national parks, while the most of the other lands are within national forests and fish/wildlife preserves. “Wilderness” is closed to all motorized vehicles and mechanical forms of transportation, including mountain bikes.
“Wilderness Study Areas” (WSAs) are lands that have been designated as having wilderness characteristics, potentially making them eligible for the “wilderness” status. Federal agencies manage the lands so as to protect these characteristics until Congress ultimately decides their final status. There is no timeline for making a decision and legislation must be enacted to finalize the process.
1) On March 30, 2009 President Obama signed into the law HR 146, the Omnibus Public Land Management Act of 2009 which designated more than 2 million acres of wilderness in nine states. The designations include areas in and around Joshua Tree National Park and Eastern Sierras in California, Owyhee-Bruneau Canyonlands in Idaho, Mt. Hood in Oregon and Zion National Park in Utah. Some roads and trails were excluded from the wilderness designations and therefore remain available to OHV enthusiasts, but others did not receive protection.
2) In May 2009, SEMA submitted comments to the House National Parks Subcommittee in opposition to “The Northern Rockies Ecosystem Protection Act.” The legislation would set a precedent by using the term “bioregion” as justification for converting 24 million acres in Idaho, Montana, Wyoming, Oregon and Washington into wilderness and “biological connecting corridors.” SEMA noted that there are a myriad of bioregions across America and it is too simplistic to create one over-arching ecosystem devoid of motorized activities within millions of acres of land. SEMA recommended that lawmakers use the traditional approach of considering wilderness designations within a particular State, and that there be threshold support at the local and State level, along with sponsorship by members of Congress representing those districts. It is unclear if Congress will move forward with the bill in the foreseeable future.
SEMA Position: SEMA supports a case-by-case review of all WSAs to determine an appropriate designation which has widespread local community support. Decisions must be based, in part, on an inventory of all developments within the WSA including roads, routes, travelways, trails, cabins, etc. When the decision favors wilderness, SEMA urges lawmakers to (1) “cherry-stem” existing roads/trails, and (2) consider applying a “back country” designation to certain lands rather than the “wilderness” designation so as to provide for a wide range of recreation opportunities for motorized and mechanized uses where appropriate. See “Regulating Motorized Recreation On Federal Lands” for more information on SEMA land use positions.
Endangered Species Act
The Endangered Species Act of 1973 (ESA) is a powerful law designed to protect threatened and endangered species, and the habitats in which they are found. It applies to federal, state and private lands. The U.S. Fish and Wildlife Service (FWS) maintains a list of about 1,890 total (foreign and domestic species on the threatened and endangered lists, which includes birds, insects, fish, reptiles, mammals, crustaceans, flowers, grasses, and trees. Given its successes and failings over the past 36 years, there have been widespread calls to review and revise the ESA to foster more cooperative efforts and incentive programs between the government, private landowners and conservation organizations. The law has favored a blanket approach of setting aside millions of acres rather than nurturing smaller recovery zones. During this time, the OHV community has been unnecessarily deprived of access to roads and trails but the sacrifice has not necessarily meant that a particular species is better protected.
Recent Legislation: The most recent efforts to revise the ESA died in 2006. The legislation would have overhauled the existing process for designating endangered species by replacing existing “critical habitat” requirements, one of the more contentious areas of the existing law and a frequent source of lawsuits, with “recovery habitats.” Monies spent on lawsuits could then be devoted to recovery efforts. The bill also called for compensating private property owners for land-use restrictions due to an endangered species.
SEMA Position: SEMA supports establishment of recovery habitats rather than setting aside huge tracts of lands and then spending time and money in endless court challenges. The FWS has stated that its recovery resources are drained by constant lawsuits. SEMA believes mediation of issues should be required before parties can file lawsuits. SEMA supports initiatives to permit and develop habitat conservation plans, conservation banking, voluntary agreements with landowners, incentive-based actions by individuals and businesses. SEMA supports strengthened cooperation with local, state and tribal governments on species recovery plans. SEMA believes species listings should be determined using best available scientific information.
U.S. Forest Service Policy on Off-Highway Vehicle Use
Following recommendations made by SEMA and other organizations, the U.S. Forest Service (USFS) announced new regulations for off-highway vehicle (OHV) use in national forests and grasslands. The need for reasonable management stems from the fact that off-road activity has risen from 5 million riders in 1972 to 36 million in 2000. Under the new policy issued in 2005, the USFS is required to formally designate a system of roads, trails and areas where motorized vehicle use would be allowed. Local agency officials are required to seek public comments from state and local officials and other stakeholders in determining routes open to OHV use. The new rule will provide for increased involvement from the OHV community in the designation process. As recommended by SEMA, USFS will also consider “user-created” routes in the review process. Many of these routes came into existence during “open” management and serve a legitimate need and purpose, and do not pose an environmental threat. The USFS is also updating its official maps since many existing roads and trails do not appear in the official inventory. The USFS anticipates that it will at least four years to complete the route designation process.
Click on this link for a copy of the USFS policy:
Click on this link for Travel Management Plans for individual forests:
BLM Policy on Off-Highway Vehicle Use
In 2001, the Bureau of Land Management (BLM) issued a “National Management Strategy for Motorized OHV Use” which recognizes motorized recreational as a legitimate use of public land. Under the program, public lands are designated as “open”, “limited”, or “closed” to OHV use. Open areas are areas where all types of vehicle use are permitted at all times, anywhere in the area. Limited areas are lands where OHV use is restricted at certain times or use is only authorized on designated routes, and closed areas are lands where OHV use is prohibited. In 2005, the BLM revised its “Land Use Planning Handbook” to incorporate specific guidance for “Comprehensive Travel and Transportation Management.” In December 2007, the BLM sent guidance to its field offices to further clarify travel management decisions in the planning process. It noted that continued designation of large areas as open to unregulated “cross-country travel” was not a practical management strategy (although still permitted), and that field offices should direct OHV travel to designated roads and trails. For the 258 million acres of BLM administered lands, the BLM’s current OHV designation status is approximately 32% “open,” 4% “closed,” 48% “limited,” and 16% “undesignated”. Included among the “open” areas, BLM manages approximately 100 specifically designated OHV riding areas.
Click on this link for a copy of the USFS policy:
National Park Service Policy on Off-Highway Vehicle Use
The National Park Service (NPS) released proposed changes to its management policies that regulate OHV use within the park system. The management policies serve as a virtual handbook for park superintendents and other park officials. The proposed language closely mirrors existing policies in stating “routes and areas may be designated for off-road motor vehicle use by special regulation within national recreation areas, national seashores, national lakeshores, and national preserves, and then only when determined to be an appropriate use. Consistent with the executive orders and the Organic Act, park managers must immediately close a designated off-road vehicle route whenever the use is causing or will cause unacceptable impacts.” SEMA supports this proposal given its directive to allow individual park officials to use public input and available scientific date to resolve access issues.
Current Status: Eight National Parks have park-specific OHV regulations. There are an additional six parks that developing regulations including Cape Hatteras National Seashore and Glen Canyon National Recreation Area.
In 2001, the U.S. Forest Service under the Clinton Administration issued a rule to stop construction of roads in 58.5 million acres of potential wilderness lands under its control. The so-called Roadless Rule would affect 31% of the total Forest Service land base. Forest Service roads provide access for the timber and mining industries along with a variety of recreational activities, such as sightseeing, fishing, hunting, and off-roading. The former roads may eventually be converted into recreational roads. The Roadless Rule has been the subject to nearly endless challenges and litigation. President Bush modified the Rule to permit local forest managers more input on access issues and to provide State Governors with an opportunity to request exemptions from the Rule. During the subsequent years there has been conflicting court rulings overturning both the Clinton and Bush rulemakings. The conflicting opinions are working there way through the Appeals Courts and could eventually be presented to the Supreme Court. While the issue remains unsettled, in May 2009, the Obama Administration’s Agriculture Secretary Tom Vilsack issued an interim directive that requires his approval of any potential road building or mining projects on roadless forests.
SEMA Position: SEMA supports active engagement by state government and local communities in helping shape forest management decisions. Additionally, many current USFS maps do not include routes well known to users and state/local officials. The USFS is still in the process of inventorying the routes and update maps, so it would not be appropriate to unilaterally close the lands under the guise that they are “roadless.”
RS 2477: Rights-of-Way Claims
In 2003, the Interior Department initiated a policy to make it easier for states and counties to claim rights of way on thousands of dirt roads that run across federal lands, most of which were created between 1866 and 1976 when federal mining laws encouraged western settlement. At issue is whether state and local governments, and the OHV community, will pursue huge numbers of public rights-of-way claims to these old trails that can be maintained as dirt-bike trails or OHV roads, or even converted into paved roads. One important element of this issue is that where roads are protected, areas will be ineligible for designation as wilderness.
Utah has been the main battleground for RS 2477 claims. For example, actions have been pursued for roads in Daggett County and the 8-mile Salt Creek Trail within Canyonlands National Park. The law remains murky at this time, with many conflicting applications of state and federal laws, and various court rulings. In the most recent action, the U.S. Court of Appeals for the 10th District ruled against Kane County officials seeking to assert RS 2477 rights for roads in the Grand Staircase-Escalante National Monument, Paria Canyon-Vermilion Cliffs Wilderness, Moquith Mountain Wilderness Study Area, and Glen Canyon National Recreation Area. The Court ruled in August 2009 that the federal government had supremacy rights for the lands.
Click on this link for more information: