Judge Clark Waddoups, Senior Judge with the Utah Federal District Court, has been presiding over the consolidated Bellwether RS2477 case filed by Kane County and the State of Utah against the United States and SUWA for many years. In August, Judge Waddoups made a couple of very important rulings that show he has a clear predisposition to substantiate the rights of Utah and Kane County in preserving rights for access on RS2477 claims, of which there are almost 12,000 roads. To illustrate the importance of this it should be remembered that 120 miles of the routes closed in Moab are on existing RS2477 claims.

The first ruling was really aimed straight at SUWA, who is acting as a Intervenor Defendant with the United States. Judge Waddoups expressed that he believed the United States was interesting in settling the long running, complex, and expensive case and that SUWA was dragging it on and unwilling to settle. He was openly frustrated with SUWA’s endless motions taking up the court’s time, and he repeated and clarified his prior ruling that barred SUWA from further motions unless they are approved in advance by the court.

The second Decision in the same case was in response to a motion from BLM that would have dismissed all 12,000 RS2477 claims.

Judge Waddoups approved the dismissal of a single road claim, but denied the request for dismissal of the remaining claims. Further, his 80 page Order was a memorandum of his reasoning for his decision, and went into great detail about his thinking on RS2477 Claims, and why they should be honored without the adjudication of each claim as was contained in prior orders. The decision is very interesting reading, and it seems clear that Judge Waddoups is going to flip the tables on RS2477 road claims, putting BLM on the defense to refute claims rather than requiring the State to gain approval on each claim.

Judge Waddoups made a couple other important distinctions in his ruling:

• Cited the recent Corner Post Supreme Court case to refute many of the statute of limitations motions to dismiss, another win for public land users
• Introduced many theories about why the 2017 BLM SUWA Settlement Agreement may be on shaky ground. This is the reason we are in the process of revisiting 17 Utah Travel Management Plans.

The case is still ongoing, but it appears Judge Waddoups wants to see it close soon, but he’s shown us a peek behind the curtain. This ruling is so monumental that the information I’ve been hearing is that BLM is reconsidering their current TMP/RMP processes in Utah. Once the case is is closed and the decision published, it can be cited in many other land use claims.

Here’s the ruling in its entirety with highlighting of some of the key findings.

The OHV community has recently been debating what types of modifications/repairs can be done on Sand Mountain. I went directly to the Sand Mountain District Field Manager to get a clear understanding of what’s allowed, and how to gain approval on other repairs.

It should be noted that different rules may apply for other BLM lands, but this is a good guide for Sand Mountain. For questions, or to report individuals or exceptions, please contact the Recreation Planner at BLM (this position is vacant until October, in the meantime, contact Bob Wells, Assistant Field Manager, rwells@blm.gov

What can you do?

• Move rocks by hand, including stacking them. No winches
• Trim bushes by hand shears
• Shovel sand by hand
• Pick up trash

What You Cannot Do Without Approval by BLM

• Use any mechanized devices such as drills, jackhammers, or earth moving equipment
• Post signs or banners, permanent or temporary
• Use nonnative materials that are not found on the mountain naturally

How to request approval for other work

• Write a description of what you want to do including:
  • GPS location
  • Photos depicting current condition
  • Description of materials or equipment being used
  • Why you are requesting to do the repair
  • Who will be responsible for the repair
  • When do you plan to start/complete?
• Email the Sand Mountain BLM Recreation Planner or Bob Wells rwells@blm.gov with your documentation to request approval

UPLA Submitted Scoping Comments for the Dolores River Travel Management Plan. Our original comments were submitted with the original comment closing date and can be seen here.

During the weeklong extension we did a review of routes that were missed in BLM’s inventory and submitted comments on the missing routes.

Supplemental Missing Route Comments

Supplement #1

Supplement #2

We are very early in the process for Travel Management Planning for Dolores River. Please continue to report on Routes in the TMA using TrailSaver.com. TrailSaver will return your reports to you when the next phase of the TMP process is ready to accept comments again.

Resources:

BLM Main Dolores River Eplanning

Public Meeting Announcement

BLM Dolores River Alt A PDF Map

BLM Dolores River Interactive Map

Submit Your Comments before June 21 to the BLM here. Be Patient, you have to wait 10-15 seconds until you see    on the Page, then Click on that. Once you submit your comments, it will take you to a Receipt Page that shows your comments. Click on the Download PDF of your comments and email copies to landuse@utahpla.com AND brc@sharetrails.org

The Chevron Deference Doctrine was overturned by the Supreme Court today in a 6-3 decision in the Loper Bright v. Raimondo case. Chevron has been the law of the land since 1984, and ordered lower courts to recognize that federal agencies should be regarded as the experts where a law was ambiguous, and as a result caused Federal agencies to get ever more aggressive in their interpretation of underlying laws in making rules, without fear of a court overrruling their interpretation. This is a landmark decision against the Federal Government in their aggressive rulemaking which restricts the rights of not only OHV users, but also many other groups such as gun owners, the environment, the workplace and even health care.

Chief Justice delivered the decision today and said that Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the Administrative Procedure Act] requires, The chief justice called the earlier decision a “judicial invention that required judges to disregard their statutory duties.”

Chevron doctrine has been applied by lower courts in thousands of cases. The Supreme Court itself has invoked the framework to uphold agencies’ interpretations of statutes at least 70 times, but not since 2016, when the Court began to drift away from their conviction for the Doctrine.

This is definitely a landmark decision that will shift our fight against Federal overreaches in restricting responsible use of our public lands, and may lead to many new arguments against devastating rules such as the recently adopted BLM Landscape Health Rule that allows conservation leases and a host of other new rules not addressed by FLPMA.

If you’d like to read the court decision, you can find it here…

Bears Ears National Monument (BENM) is an exquisitely beautiful and unique 1.36-million-acre gem of public land, located in Southern Utah. BENM is currently going through resource management planning following recent expansion of the monument by presidential proclamation. For more details on the monument expansion, history of BENM, and discussion of resource management planning versus travel management planning for public lands, check out our recent articles on these topics on the Utah Public Lands Alliance (UPLA) website.

The proposed Resource Management Plan (RMP) for BENM was developed via collaboration of the Bureau of Land Management (BLM), US Department of Agriculture’s Forest Service (FS), and the Bears Ears Commission (a group representing six Native American tribes). The RMP includes five Alternatives for public comment. All five Alternatives will result in detrimental impact on outdoor recreation access in BENM. Thus, we urge our members and other outdoor recreation enthusiasts to take advantage of the public comment period to advocate for preservation of recreation access. In this article, we’ll compare the varied levels of impact across the five Alternatives. The deadline to submit public comments is June 11, 2024.

The common thread through all five proposed Alternatives in the BENM RMP is: recreation access is viewed as a threat to preservation of natural and cultural resources. Rather than evaluate how recreation can be managed to prevent and mitigate potential impacts on natural and cultural resources, closed or restricted access is the dominant strategy utilized. Unique characteristics of each alternative include:

• ALTERNATIVE A: this is the “no action” alternative by which (most) existing management would continue.
  • BLM lands: eight special recreation management areas (SRMAs) and two extensive recreation management areas (ERMAs) would remain intact.
  • Forest Service lands: management based on Recreation Opportunity Spectrum (ROS) categories of primitive, semi-primitive non-motorized, semi-primitive motorized, and roaded natural.
  • Travel management (OHV): existing designated OHV routes would remain open (see table below)
    • 928,080 open to limited OHV access
    • 436,075 acres closed to OHV access
  • Areas of Critical Environmental Concern (ACECs): existing ACECs would remain in place, no new ACECs would be created
  • Recreational shooting: permitted
  • Recreational facilities: existing facilities would remain open and intact
• ALTERNATIVE B: provides the most permissive management for recreation access considerations. However, conservation is still heavily prioritized over recreation and public access.
  • BLM lands: would be managed through four SRMAs and four ERMAs
  • Forest Service lands: same as Alternative A
  • Travel Management (OHV):
    • 797,525 acres open to limited OHV access
    • 566,627 acres closed to OHV access
  • Travel Management (aircraft): landings and takeoffs would be limited to Bluff Airport and Fry Canyon Airstrip, with the potential for additional locations to be identified in future implementation level decisions.
  • ACECs: BLM would designate the Indian Creek ACEC, Lavender Mesa ACEC, and Valley of the Gods ACEC. The San Juan River ACEC and Shay Canyon ACEC would not be designated as ACECs.
  • Recreational shooting: permitted generally, with the exception of closures in the Indian Creek Corridor Recreation Management Zone (RMZ), San Juan River SRMA, and prohibitions in campgrounds, developed recreation facilities, climbing areas, existing and designated trails, parking areas, trailheads, across roadways, rock ES-7 writing sites, and structural cultural sites. If problems with recreational shooting occur in the future, the BLM would consider future restrictions or closures.
  • Recreational facilities: may be developed as needed
• ALTERNATIVE C: similar to Alternative B, with additional restrictions to use of drones
  • BLM lands: same as Alt B
  • Forest Service lands: same as Alt A
  • Travel Management (OHV):
    • 700,122 acres open to limited OHV access
    • 664,030 acres closed to OHV access
  • Travel Management (unmanned aircraft / drones): use of drones eliminated throughout most of BENM, with case-by-case exceptions through a permitting process
  • ACECs: same as Alt B
  • Recreational shooting: same as Alt B
  • Recreational facilities: limited development of facilities with emphasis on maintaining natural conditions across the landscape
• ALTERNATIVE D: severe restrictions to recreation access; the primary management priority is for landscape conservation that is achieved through eliminating or heavily restricting recreation
  • BLM lands: managed through creation of seven Management Areas
  • Forest Service lands: same as Alt A
  • Travel Management (OHV):
    • 381,239 acres open to limited OHV access
    • 982,914 acres closed to OHV access
  • Travel Management (aircraft): same as Alt B
  • Travel Management (unmanned aircraft / drones): same as Alt C
  • ACECs: BLM would designate the Indian Creek ACEC, Lavender Mesa ACEC, Valley of the Gods ACEC, John’s Canyon Paleontological ACEC, and Aquifer Protection ACEC. The San Juan River ACEC and Shay Canyon ACEC would not be designated as ACECs.
  • Recreational shooting: same as Alt B
  • Recreational facilities: minimized development of recreational facilities and management in favor of emphasizing natural conditions
• ALTERNATIVE E (the preferred alternative): most recreation access eliminated throughout BENM; maximizes the considerations and use of Tribal perspectives on managing the landscape; emphasis is on resource protection and the use of Traditional Indigenous Knowledge and perspectives on the stewardship of the landscape.
  • BLM & Forest Service lands: SRMAs and ERMAs would be eliminated; recreation managed based on a zoned approach. Four zones would be designated: Front Country, Passage, Outback, and Remote.
  • Travel Management (OHV):
    • 794,181 acres open to limited OHV access
    • 569,971 acres closed to OHV access
  • Travel Management (aircraft): same as Alt B
  • Travel Management (unmanned aircraft / drones): same as Alt C
  • ACECs: all existing ACECs would be carried forward, the John’s Canyon Paleontological ACEC and Aquifer Protection ACEC would also be designated.
  • Recreational shooting: eliminated in full throughout all of BENM
  • Recreational facilities: development allowed only in Front Country and Passage zones, when deemed an absolute necessity

As you can see from the management guidelines proposed by each alternative, there is no alternative that is pro-recreation. A pro-recreation alternative would retain all existing recreation opportunities in the monument as open, including all currently designated motorized routes. It is critical to emphasize that management by closure is not management; rather, this method of “management” serves to banish the public from the opportunity to access and enjoy our public lands. There are many effective strategies to manage public lands, including BENM, by means other than road closures, activity bans, group size limits, and exclusion zones.

We encourage outdoor recreation enthusiasts to submit comments on this RMP to advocate for a pro-recreation alternative that would involve active management techniques such as constructing new infrastructure to sustainably handle increased visitation; this would include new trails, trailheads, parking areas, bathroom facilities, campgrounds, etc. It is possible to manage the natural landscape in a manner that conserves the land, protects wildlife habitat, and retains the rugged, wild characteristics of the landscape, while also creating appropriate places, structure, and guidelines for humans to access, enjoy, and recreate throughout the land.

For more details about the BENM RMP, along with guidance on how to write a high-impact comment to submit for the public comment period, join us for a webinar on May 30 at 6:30pm MT. Utah Public Lands Alliance and BlueRibbon Coalition are partnering to share about how the RMP will affect OHV and outdoor recreation access. Tips and best practices will be presented to help you craft your own substantive comment. Click this link to register for the webinar.

For more details about the Bears Ears National Monument RMP, check out the RMP planning website, the draft RMP, and the BLM’s press release and invitation for public comment:

• Bears Ears National Monument ePlanning website
• Bears Ears National Monument Resource Management Plan
• BLM, USDA Forest Service invite input on Bears Ears National Monument draft plan

UPLA is continuing to review the draft RMP and seek guidance from the outdoor recreation community to identify areas of concern regarding the impacts of each proposed Alternative  If you have questions or would like to share your input on the draft RMP, please contact UPLA’s Natural Resources Consultant, Rose Winn, at rose@uplapla.com.

People often ask what they can say to make their comments effective, or “substantive”. Most
comments do a pretty good job at telling What you want, what’s often missing is the Why which
justifies your comments. There are many justifications that BLM cites for every proposed closure or
restriction to access for each trail, and it is impractical for you to write meaningful comments on all
of them. If everyone running a trail just picks the items most important to you from the list below
and states specific reasons why the trail should remain open.

We really need your input on individual routes, we can’t get it any other way. The more detail you
give the better, but even if you only write about one or two – that will make a tremendous impact in
preventing BLM from making arbitrary decisions to close or restrict OHV access to that trail, and
give us better grounds for legal challenges. Perhaps the most important things for recreationists to
convey about a given route are its value and its manageability.

Click Here to See All Our Suggestions as a PDF

Click Here to See A Sample BLM Route Report for The Barracks Trail

Suggestions on Topics for Making Comments With Sample Route Report