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…

The effort to remove access for Off Highway Vehicle Use is not just a movement, it is an all out assault plan that is well orchestrated between Extreme Environmental Groups and Top Management at the BLM and Secretary of the Interior.

To win a war, you must fight on several fronts simultaneously with different strategies and resources. Here’s a brief recap of what’s being done in Utah.

BlueRibbon Coalition serves as our early alert system to keep us abreast of the latest in developments. Many times actions taken in other states are precursors to what we will see next in Utah. BlueRibbon will fight for us in the courts, a very recent example of that is the Federal lawsuits to reverse the Labyrinth Canyon Travel Management Plan. Everyone should be a member of BlueRibbon Coalition, and when submitting comments on land actions, submit them personally and through BlueRibbon by copying them at landuse@sharetrails.org

Utah Public Lands Alliance is focused on preserving access for ALL User groups in Utah and surrounding areas. UPLA hired our first employee recently, Rose Winn, as our Natural Resource Consultant to help us craft both professional comments and provide training for our members. UPLA has been working very closely with BlueRibbon Coalition to develop a comprehensive strategy to take preemptive action against closure efforts. We are focusing on using the same rules that SUWA has employed for years to achieve their success to our favor. To score points in a game, you must have a strong offense strategy, we can’t just play defense..

UPLA recognizes that we have many great employees at BLM and Forest Service that we’ve been working with for years to improve, protect, and preserve our public lands, and we want to enhance and grow those relationships. One of our immediate focuses is to educate our members and subscribers on how to be more effective in commenting, which will influence more favorable decisions initially by Land Managers, and provide a basis for legal action when it’s needed. If you live or recreate in Utah, you should join and support Utah Public Lands Alliance.

Your local Clubs and other User Groups-It’s important that you join and support your local clubs and organizations. They are the glue that holds the fabric of the OHV and related user groups together. Many OHV members are also users of public lands in other activities such as hunting, fighting, equestrian, mountain biking and many others. Share your concerns with these groups as well about overreaches by the Federal Government, go to their meetings to explain yourself. If you need help preparing, reach out to UPLA or BlueRibbon for assistance.

State of Utah-Our State is fighting back hard against overreaches by the Federal Government with several factions of government:

Utah Public Lands Policy Coordinating Office (PLPCO) is the agency that is leading the administrative fight in keeping access to our public lands. They have been fighting for our RS2477 roads for years, but have also now turned their attention to include B and D Class Roads in the fight. PLPCO was also the first to produce intelligible maps for the San Rafael Swell Travel Management Plan.

Legislative-We were fortunate to have both Utah Senator David Hinkins and Speaker of the House Mike Schultz visit with us at the Big Ride on evening. The focus of the 2024 legislative session was on taking back control of our state from the Federal Government. Of particular note were 2 bills (H.B. 471 and S.B. 57 passed and signed by the Governor that will test the limits of the 10^th Amendment in the powers granted by the US Constitution to the Federal Government, with the remaining rights being the jurisdiction of the State.

County Governments-County governments are very important in our fight, and counties with public lands, especially with OHV access have gotten very involved in the fight. Reach out to your local County Commissioners and let them know why public access is so important.

Judicial-The State of Utah currently has more lawsuits filed against the Federal Government than at any other time in our history, and this aggressiveness will accelerate as we move ahead. In addition, the state is seeking to build a coalition with other Western States to fight together against these overreaches. With the Supreme Court balance we now have, this is the best opportunity we’ve ever had to reign in the expanding bureaucracy of our Federal Government.

Together, We Can Win

But We Can’t Do It Without You!

This is not a single skirmish, we must get and stay engaged for the long haul. We have broad support from many organizations and government agencies, but we can’t really make a difference without your personal support and involvement.  Let’s all Join the Fight to Win and Don’t Give Up!

Rose Winn, UPLA’s Natural Resource Consultant, BLM Western Solar Plan (PEIS Comment)

Please get yours sent in before April 18!

There is a shift happening on public lands with the core driver centered in renewable energy: solar and wind power. The climate change agenda is rapidly impacting the priorities that public land managers place on “multiple-use management” of our public lands.

There has been a significant increase of solar farms on public land in recent years. The BLM Western Solar Plan created in 2012 identifies public lands eligible for fast-track solar farm development in multiple states, including: Utah, Colorado, Arizona, Montana, New Mexico, California, Washington, Oregon, and others. The BLM is currently updating the Western Solar Plan in order to expand areas of public land suitable for solar energy development to meet a net carbon electricity goal by 2035. Public comments are now being accepted on the Solar Programmatic Environmental Impact Statement. We need OHV enthusiasts to submit public comments to tell BLM to exclude your favorite OHV riding areas from the plan. With this current plan there is a variance process that potential solar projects have to go through in order to be approved. These renewable energy developments often conflict with recreation use, which should be a core variance within the approval process.

On the positive side, all of the five Alternatives proposed for the Western Solar Plan exclude Special Recreation Management Areas (SRMAs) from solar energy development; thus, these areas could be affected only indirectly by solar energy facilities located close to their boundaries. However, on the negative side, the range of indirect impact on the quality and viability of the OHV riding experience at SRMAs is vast, including:

• Change in the overall character of undeveloped BLM-administered lands to an industrialized, developed area that would displace people who are seeking more rural or primitive surroundings for recreation.
• Changes to the visual landscape, impacts on vegetation, development of roads, and displacement of wildlife species resulting in reduction in recreational opportunities could degrade the recreational experience near where solar energy development occurs.

Additionally, the potential for solar projects to close public access to designated OHV routes that are outside of SRMAs is a real and impending threat to the future of OHV recreation in many popular areas of BLM land throughout the West, including Utah. The proposed plan states:

“Many BLM field offices have completed planning activities to designate lands for OHV use. Under these plans, areas open to application for solar energy development may be available for OHV use, and solar energy development in these areas would displace this use. Applications for solar energy facilities may include areas containing designated open OHV routes, thereby eliminating public access along those routes.”

It is imperative for OHV enthusiasts to submit comments on the BLM Western Solar Plan to urge the BLM to exclude areas with designated OHV routes from the range of available land for construction of solar projects, and, to exclude construction of solar projects near the borders of SRMAs.

Public comments will be accepted through April 18. For more information on the BLM Western Solar Plan, and to submit a comment, go to: https://eplanning.blm.gov/eplanning-ui/project/2022371/510

Rose prepared some talking points for you to use when writing your own comments. These should be used as idea starters for you, please don’t just copy and paste them. Form letters or comments with same language are not effective.  It’s not necessary to incorporate all of these in your comments, pick the couple that are most important to you, however, we need lots of comments regarding the first talking point and request them to remove that language about solar energy plants replacing currently designated OHV routes.

If you have questions or would like to discuss how you will craft a comment for the Western Solar Plan, please reach out to UPLA Public Policy Consultant, Rose Winn: rose@utahpla.com.

Plan website: https://eplanning.blm.gov/eplanning-ui/project/2022371/570

Public comment deadline: April 18, 2024

Send your comments via email to: solar@blm.gov

• Utah Public Land Alliance’s Natural Resources Consultant, Rose Winn, is tracking comments for this Solar Plan. Please add Rose to the “CC” field of your email: rose@utahpla.com.

(Sample comment letter  below, but please make it your own, don’t try to copy and paste.)

Key Talking Points:

• Note that the potential for solar projects to close public access to designated OHV routes that are outside of SRMAs is a real threat to the future of OHV recreation in many popular areas of BLM land. The proposed plan states on page 5-159 of the 2023 Draft Solar PEIS Volume 1 (Section 5.14 Recreation, 5.14.1 Direct and Indirect Impacts, 5.14.1.1 Construction and Operations):
  • “Many BLM field offices have completed planning activities to designate lands for OHV use. Under these plans, areas open to application for solar energy development may be available for OHV use, and solar energy development in these areas would displace this use. Applications for solar energy facilities may include areas containing designated open OHV routes, thereby eliminating public access along those routes.”
•  Urge the BLM to cite the following as explicit exclusions within all 5 Alternatives:
• • Exclude designated OHV routes and open OHV riding areas from the range of available land for construction of solar projects
  • Exclude construction of solar projects near the borders of Special Recreation Management Areas
  • Exclude all designated outdoor recreation areas (including dispersed camping, designated camping, mining, along with all forms of outdoor recreation) from the range of available land for construction of solar projects.
• Thank the BLM for excluding land within Special Recreation Management Areas from solar energy development, and urge them to maintain this exclusion within the final draft regardless of which Alternative or combination of Alternatives is selected.
• Name all BLM OHV riding areas that you have, or would like to in the future, recreate at. Wherever possible, itemize the features that make that riding area unique and of high-value to the OHV rider experience. Note how a solar facility development within or nearby that riding area would negatively impact the rider experience and/or wildlife and wildlife habitat in the region.
• The negative impacts of solar facilities on wildlife is of importance to OHV enthusiasts given that a major element of why we enjoy OHV recreation is to get out in nature and view / observe wildlife in its native habitat. Solar facilities destroy habitat for all species that inhabit the footprint where the facility is constructed; they displace wildlife, leading to higher concentrations of species in surrounding areas as those species are forced to flee the solar facility area to survive. This will inflict harm on wildlife as there will be more competition for food and habitat for all species including mammals, birds, amphibians, reptiles, and insects.
• Solar facilities on OHV riding areas would also displace OHV riders. This will create a higher concentration of people riding in other OHV areas, which will create new negative impact on natural and cultural resources in other areas, thus jeopardizing the long-term viability of other OHV areas, and thereby inflicting harm directly on the OHV recreation community. For this reason, the BLM should exclude designated OHV routes, open OHV riding areas, Special Recreation Management Areas, and lands near the borders of Special Recreation Management Areas from the range of available land for construction of solar projects.
• OHV recreation accounts for a huge segment of the outdoor recreation economy. Outdoor recreation contributes over $1.1 trillion to the US economy. For this reason the BLM should exclude designated OHV routes, open OHV riding areas, Special Recreation Management Areas, lands near the borders of Special Recreation Management Areas, and all designated outdoor recreation areas from the range of available land for construction of solar projects.
  • There is some info that may be of interest to cite from this article on the value of the outdoor recreation economy
• You may suggest that solar facility development is not suitable for construction on America’s public lands, which are intended to be used, stewarded, and protected for the benefit of all Americans. Solar facilities destroy the recreational, resource, cultural, and ecological values of our public lands. Solar facilities are best suited for urban and developed areas – such as rooftops in cities and elevated coverings over parking lots. One of the issues that the BLM has noted in the Western Solar Plan is a desire to place solar facilities near existing power transmission lines – so public lands, which are inherently distant from transmission lines – are unsuitable. Constructing solar facilities in urban, developed areas is more efficient as transmission lines are already in near proximity.
• If you’d like to see a sample comment letter, Sample Template Comment Letter

We had 2 big wins in the Utah State Legislature this last session.

S.B. 67 would have gutted the ability for Counties and Local Government to protect roads from being closed.  Class A, B, C and D roads from being closed across private land. At one point this bill had increased in size to almost 290 lines of text, barely resembling the text of the previous law. With Hurculean effort during the last hours of the bill being passed, the Senator’s office was flooded with almost 500 emails received overnight. The bill was amended the next day. You can read the text of the bill here

H.B. 471 was a bill introduced by Representative Phil Lyman and Senator Curtis Bramble. By the time the bill was passed, it had 12 CoSponsors, something very rare to have such strong support. The bill asserts ownership and exclusive jurisdiction of roads included on a county travel plan and requires due process before the federal government may close a road.
-The bill:asserts ownership and jurisdiction over roads included on a county’s class B and
class D road map or a county travel plan unless the road has been closed through
proper adjudicative proceedings;
-The bill  llows the state or a county to disregard any attempted closure of a road without due
process;
-The bill asserts that the burden of proof to show the need to close a road or to claim
ownership falls on the federal government;
-It allows the state and county to disregard the alleged closure.
This was a huge accomplishment, you can read the text of the bill here.

Many thanks to our OHV Advocate Brett Stewart for watching and influencing these bills.

The Supreme Court heard oral arguments in the Loper Bright v Raimondo case, which will answer a legal question about the precedent established in the Chevron Doctrine, which grants deference to Federal agencies in determining rules where the underlying law is silent and/or ambiguous. This will be a landmark decision if Chevron is overturned in many different areas where the Courts are required to defer to agencies as they are the experts.

I am hopeful that the questions posed by the Justices will generate a favorable outcome in overturning or restricting application of Chevron when they render their decision in June. There’s a lot of information on the internet about this case, but you can listen to the arguments yourself on the Supreme Court’s website. It’s very interesting to actually hear the arguments and questions being posed by the attorneys and Justices, and it’s only a little over an hour of listening time.

You can listen to it here Loper Bright Arguments