Natural Trails & Waters Coalition
P O Box 7516
Missoula, MT 59807
July
11, 2003
John Singlaub
Bureau of Land Management
Carson City Field Office
5665 Morgan Mill Road
Carson City, Nevada 89701
NOTICE
OF VIOLATIONS and
PETITION
FOR EMERGENCY CLOSURES
TO HALT
SIGNIFICANT AND UNACCEPTABLE IMPACTS
Dear Mr. Singlaub:
The
Natural Trails and Waters Coalition is a coalition of over one hundred recreation
and conservation groups nationwide concerned with the proliferation of Off-Road
Vehicles on our public lands and the adverse impacts they are causing to these
lands and the citizens that enjoy these lands.
Our Coalition represents hundreds of thousands of people nationwide that
have felt or witnessed the impacts of these vehicles. This spring, I was
contacted by one of the groups in our Coalition, the Wilson Canyon
Alliance(WCA). Members of WCA were experiencing
extreme frustration at watching lands they love so dearly be systematically
destroyed by these vehicles. In
addition they were feeling the Bureau of Land Management was refusing to act or
even respond to many of their concerns.
I agreed to come to Wilson Canyon and observe first-hand the
situation. In June I met with WCA and
was appalled at the impacts I observed.
I also attended a meeting with the BLM, WCA, NDOT, Lyon county
commissioner and off-road vehicle club representatives. It was obvious at this meeting that the
off-road vehicle club was holding the reins for steering management of the
Wilson Canyon area. The club which
calls themselves ”Friends of Wilson Canyon” refused any offer of temporary
closure which would lead to restoration and protection of Wilson Canyon . It was hard for me to understand why the BLM
felt they needed to abide by the wishes of this select group of people when in
reality it is laws that are created by the citizens of the United States that
govern management of the public lands that belong to all of us. It is these laws which we, as citizens,
expect the BLM to follow to protect our lands for now and for future
generations.
It is with this in mind,
and having observed firsthand, as well as seen excellent historic documentation
of the impacts, that Natural Trails and Waters Coalition formally submits this
letter to the BLM.
PETITION FOR CLOSURE
The Natural Trails and Waters Coalition hereby formally petitions you to issue an immediate Closure Order on lands under BLM jurisdiction in what is commonly known as the Wilson Canyon OHV Recreation area. We ask that all off-road-vehicle use and dispersed camping will immediately cease until a thorough Environmental Impact Statement (EIS) is completed in the area. This area includes but is not limited to T 11 N, R 24 E, Sections 1-27 and T 11 N, R 25 E, Sections 4-9 & 16-21
This closure action is needed immediately because
motorized vehicle use and dispersed camping on these public lands is causing
(1) significant and irreversible damage to Bureau of Land Management lands and
resources, including trees, soils, streambanks, shorelines, hillsides and water
bodies, (2) significant impacts to wetlands, riparian areas, and water quality,
(3) possible significant impacts to the endangered Pygmy Rabbit and other Sensitive
Species including but not limited to the Townsend Big Eared Bat
( Corynorhinus townsendii) and Lemmon Buckwheat(
Eriogonum lemmoni) (4) Impacts to cultural and archaeological sites (5)
significant degradation of recreation and scenic values and impacts and danger
to adjacent private property and residents.
These impacts have been well documented and recognized by private
citizens as well as the Bureau of Land Management.
DESCRIPTION
OF THE IMPACTS AND DAMAGE
The Wilson Canyon recreation area is a popular
recreation area for all types of visitors. In the past, people have come to the
area to fish, camp, horseback ride, hike, photograph nature, bird watch,
bicycle ride, rock-hound, ride dirt bikes, ride atvs, and experience a sense of
peace, quiet and beauty within a reasonable distance of the noise and bustle of
nearby metropolitan areas. Its beauty
and natural values are unique and rare for the typically dry desert-type lands
of Central/Western Nevada. This
uncommon riparian habitat attracts a variety of species of birds and
mammals. The dune-type hillsides have
been documented to host sensitive plant communities of the rare Lemmon
Buckwheat.
The canyon itself hosts the sensitive Townsend’s
big-eared bat per documentation of the Nevada Natural Heritage Program. (see
attachment). It is unknown at this time if other sensitive species inhabit the
wetlands, sage lands and hillsides of Wilson Canyon. The habitat is conducive to supporting populations of pygmy rabbit,
sage grouse, river otters, as well as many bird species yet to be documented or
positively identified.
In the past, fewer numbers of campers and a
limited number of off-road vehicles contributed negligible impacts to the land
as did the other recreation uses described above. Over the years there has been a significant increase in the
amount of motorized vehicle use, dispersed camping, and establishment of
“user-created” motorized vehicle routes in the Wilson Canyon area as well as
all areas of the nation. The BLM has
not done a good job regulating motorized vehicle use or protecting the area
against irresponsible off-road vehicle use.
As a result, motorized vehicle use has caused and continues to cause
significant impacts to public lands and resources. The special natural values of the Wilson Canyon area are being
destroyed by unregulated and irresponsible motorized vehicle use. This spring, the level of damage caused by
motorized vehicle increased dramatically in the Wilson Canyon area. Numerous illegal
fires associated with dispersed camping have been started in the area. Illegal dumping of raw human waste occurs
adjacent to the Walker River. Entire
hillsides have been completed denuded of vegetation by ATVs and dirt
bikes. Adjacent landowners have
reported numerous trespasses and vandalism.
There have been findings of lithic scatter and other evidence of ancient
cultural significance.
None of the above facts are news to the BLM. For the past 3 years the BLM has received
numerous letters from the public, phone calls, photographs, and even requests
from other land management agencies to “Do something” about the problem. In fact, when citizens contacted the BLM and
pointed out the damage that was occurring in these areas, the BLM repeatedly refused to take immediate action.
Instead, the BLM holds fast to what they call their “obligation” to provide for
multiple recreation opportunities. In
fact, the BLM is discriminating against all recreation activities except those
that are causing the indisputable, severe, impacts to the natural
resources. People that want to have a
quiet, peaceful recreation experience have been displaced out of the Wilson
Canyon area by increasing droves of off-road-vehicles. Campers that in the past have wished to
spend a few hours or a night in the cool shade of the cottonwoods by the Walker
River are not able to do so as illegal campers many times with trailers loaded
with atvs and dirtbikes have staked out their camp spot/toilet area for weeks
on end. The BLM has publicly admitted
they are unable to monitor or enforce the use and laws here and monitor the
occurrence of damaging activities. Yet,
they still continue to allow the destruction to occur and have refused even
suggestions of temporary closures.
THE
BUREAU OF LAND MANAGEMENT’S RESPONSIBILITIES
TO PROTECT NATIONAL FOREST LANDS AND RESOURCES
Over the years, the Federal government has found
it necessary to establish a host of laws, regulations, and policies designed to
protect public lands and their resources from damage from motorized vehicle
use. In this Section, we will review
some of these laws, regulations, and policies and show that the BLM has
numerous obligations to immediately close the areas in question to motorized
vehicle use. To date, the BLM has only
shown concern for keeping the area open to off-road vehicle use. They believe
this is their primary directive. Not
so. Use of off-road vehicles is
“allowed” only when it does not contribute significantly to human conflicts or
adverse impact to the resources.
Off -road vehicle use is a recreational activity
enjoyed by a select group of people. Unlike grazing, mining or logging it does
not contribute to society as a whole or even to the livelihood of those
individual off-road vehicle riders. Yet
this select activity has been allowed to occur outside of the laws governing
management of our public lands. Grazing, mining and logging all must abide by
BLM Land Health Standards as well as certain federal and state regulations, as
must all activities including off-road vehicle riding and other forms of
recreation.
Executive
Order 11989
Executive Order 11989 requires that whenever it is
determined that the use of motorized vehicles is causing considerable adverse
effects on the soil, vegetation, wildlife, wildlife habitat or cultural or
historic resources of particular areas or trails of the public lands, the
agency should “immediately close such areas or trails to the type of
off-road vehicle causing such effects.”
(Emphasis added.) Documentation
has repeatedly shown that off-road vehicle use is causing considerable adverse
affects on soil, vegetation, and wildlife habitat in the areas at issue in this
Petition. Accordingly, this BLM must “immediately close” these areas to
motorized vehicles.
The Wilson Canyon Recreation Area is being
significantly damaged by motorized vehicles being operated on and this damage
will get much worse before the BLM ever analyzes these areas for closure. The
appropriate action for the BLM to take is to immediately close the entire
Wilson Canyon recreation area to dispersed camping and off-road vehicle use
until it is determined through a proper and lawful NEPA process if and where
these uses are appropriate.
Endangered
Species Act
The Endangered Species Act (ESA) was established
“to provide a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved.” 16 USC § 1531(b). Through the ESA, Congress instructed federal
agencies such as the BLM “to conserve endangered species and threatened species”
and “utilize their authorities in furtherance of the purposes of this Act.” 16
USC § 1531(c)(1).
The damage caused by motorized vehicles to various
riparian and upland area may have resulted in the adverse modification of TES
species’ habitat. Such degradation of
habitats may lead to further harm to the species and declines in the species’s
already precarious population. We
believe by allowing this damage to occur, the BLM is not complying with the
purpose and policy of the Endangered Species Act.
Furthermore, to the best of Petitioners’
knowledge, the BLM has not consulted with the U.S. Fish and Wildlife Service
(FWS) on the extent to which allowing such motorized vehicle us in known or
potential habitat of sensitive species in the area and how it may be impacting
the species or altering the habitat. It
also appears the FWS has never authorized any incidental take of the species by
such motorized vehicle use.
Accordingly, it is our position that the BLMs decision to allow such
motorized vehicle use is not only contrary to the substantive purpose of the
ESA, it also violates various procedural requirements of the ESA and ESA
implementing regulations. These
violations are on-going. The BLM should
immediately close the areas in question to motorized vehicle use in order to
determine species composition and distribution in the area and abide by the
policy of the ESA. The BLM should also
immediately initiate consultation with the FWS concerning the BLM’s authorization
of motorized vehicle use in the Wilson Canyon area. Natural Trails and Waters
Coalition will be providing documentation of suspect species to the FWS.
Clean
Water Act
The purpose of the Clean Water Act (CWA) is to “restore
and maintain the chemical, physical, and biological integrity of the Nation’s
waters.” 33 USC § 1251. Water bodies
such as streams, creeks, lakes, ponds, and other wetlands constitute waters of
the United States and are therefore also subject to the Clean Water Act (CWA)
and its implementing regulations. See
40 CFR § 230.3(s). In addition,
riparian areas fall within the definition of “wetlands” under the Clean Water Act
and its implementing regulations. See
40 CFR § 230.3(t). The CWA and CWA implementing
regulations impose a number of requirements upon agencies such as the BLM to
ensure the Act’s important purpose will be achieved. These requirements are not being met in the Wilson Canyon area.
The operation of motorized vehicles in these water
bodies results in the discharge of chemicals (e.g., oil, grease, gasoline) in
the water bodies. The discharges
degrade water quality and cause impacts to aquatic communities and vegetation. Such discharges are supposed to be evaluated
and regulated under the Clean Water Act and its implementing regulations. However, the BLM has not conducted a 404(b)
evaluation or obtained a CWA permit or authorization for the discharges in
question. Petitioners therefore believe
the motorized vehicle use documented by the public is being done in violation
of the Clean Water Act and CWA regulations. In addition, the BLM has been aware
for years that human waste is being introduced into these waters. The BLM did
install a toilet facility to curb the fecal events, however, this spring documentation shows that the
public is still choosing to use the wooded area near the river
In addition, the CWA 404(b) regulations state that
“no discharge of dredged or fill material may be permitted if there is a
practicable alternative to the proposed discharge which would have less adverse
impact on the aquatic ecosystem....” 40
CFR § 230.10(a).
The BLM has failed to determine whether there are practicable alternatives to the discharges being caused by the motorized vehicle use along the roads and trails at issue in this Petition. Certainly, closing these areas to motorized vehicle use is a practicable alternative since it can be easily implemented, and because the roads in question do not need to be left open to serve any demonstrable need or use. There are thousands of miles of roads on the BLM lands in Nevada and there are abundant opportunities elsewhere for motorized recreation. In fact, the BLM estimates that 39,311,000 acres (85 percent of BLM land) are open to off-highway vehicle (OHV) use.
Executive
Order 11990
Executive Order No. 11990 provides Federal
agencies with direction concerning the Protection of Wetlands. In particular, the Order instructs agencies
such as the USFS to
“avoid to the extent possible the long and
short term adverse impacts associated with the destruction or modification of
wetlands and to avoid direct or indirect support of new construction in
wetlands wherever there is a practicable alternative.”
(Emphasis added.)
This Executive Order further requires the USFS to:
“provide leadership and shall take action to minimize
the destruction, loss or degradation of wetlands, and to preserve and
enhance the natural and beneficial values of wetlands in carrying out the
agency’s responsibilities for ... managing ... Federal lands and facilities.”
EO 11990, Section 1(a) (emphasis added). To comply with this Executive Order, the BLM
must immediately close the roads and areas at issue in this Petition.
NEPA
The National Environmental Policy Act is our
nation’s Charter for the protection of the environment. 40 CFR § 1500.1(a). A key part of NEPA’s purpose is to “promote
efforts which will prevent or eliminate damage to the environment and
biosphere.
(42 USC §
4321.) By allowing undue and
unnecessary damage to the environment it is clear the BLM has not been making
efforts to prevent or eliminate damage to the environment in the Wilson Canyon
area and is contrary to NEPA. To comply
with our Nation’s Charter for the environment, the agency should immediately
close the areas in question to motorized vehicle use.
BLM Regulations
BLM regulations prohibit the use of off-road vehicles “(I)n a manner causing, or likely to cause significant, undue damage to or disturbance of the soil, wildlife, wildlife habitat, improvements, cultural, or vegetative resources or other authorized use of the public lands.” (43 CFR Section 8341.1(f)(4)) In addition, the regulations require the agency to “immediately” close lands open to such vehicles when the agency determines that their use is “causing or will cause considerable adverse effects upon soil, vegetation, wildlife, wildlife habitat, cultural resources, threatened or endangered species, wilderness suitability, other authorized uses or other resources.” (43 CFR Section 8341.2(a).
Stewardship/Trust
Obligations
Finally, even if one were to ignore all of the
previously legal requirements, we point out that the BLM acts as the steward
and caretaker for all the citizens of this country (present and future) and of
all the public lands and resources on the Carson City Resource Management Area. Consequently, the BLM has a public
trust and common law responsibility to protect these lands from damage. Issuing the requested Closure Order is
necessary to ensure the BLM honors its common law and public trust stewardship
responsibilities.
THE
BLM’S AUTHORITY TO TAKE IMMEDIATE ACTION
TO
PROTECT NATIONAL FOREST LANDS AND RESOURCES
As discussed above, the BLM has been directed -- through
numerous laws, regulations, and policies -- to protect BLM lands and resources
from damage caused by motorized vehicles.
We do not think the agency will dispute these obligations. However, the BLM may argue it lacks the
authority to take immediate action to close roads or areas to motorized
vehicles. For example, the agency may
feel it needs to “propose” closures and allow motorized vehicle users to
comment on any closure proposal before the agency can decide whether or not to
close the areas in question. Such a
position would not only be contrary to the legal requirements discussed above
-- which instruct the agency to immediatelyy close areas to motorized vehicle
use in order to protect lands and resources from damage -- such a position
would also be contrary to the caselaw on this issue.
Federal Courts have repeatedly held that land
managers have the discretion to close roads, trails and other areas to
motorized vehicle use when such closure was deemed necessary to protect public
lands and resources. For example, in Utah
Shared Access Alliance v. Wagner (Civ. No. 99-CV-0349C, D. Utah,Order of
June 8, 2000), the Court upheld the USFS’s decision to close motorized vehicle
routes on the Dixie National Forest when the agency conducted a 2-day site visit
and found that certain routes needed to be closed in order to protect against
erosion. Similarly, in Ohio Valley
Trail Riders v. Worthington (Civ. No. 99-31, E.D. Kentucky, June 8, 2000),
a Court held that the USFS has the authority to close various routes to
motorized vehicles based on broad studies showing damage to forest
resources. That Court also held that,
in deciding to close certain areas to motorized use, the USFS was not obligated
to quantify impacts from motorized vehicles at specific sites before
instituting the closure. See also Northwest
Motorcycle Association v. USDA, 18 F.3d 1468 (9th Cir. 1994) (upholding
USFS’s authority to close routes to motorized vehicle use when the agency
determined such use was causing user conflicts).
Accordingly, the BLM should not delay or defer a
decision on this Petition. The damage
shown in the attached photographs is indisputable, it is significant, it is
on-going, and it will get worse if the agency delays action to close these
areas. The Forest Service has the legal
responsibility and legal authority to issue an immediate Closure Order for the
lands at issue in this Petition.
We also point out that closing the roads and lands
in question to motorized vehicle use will not significantly reduce motorized
vehicle opportunities on the Carson City RA There are millions of acres of open
lands on the BLM in Nevada. Appropriate areas should be pre-determined by the
public and the BLM for use by off-road vehicles. These areas should be designated proactively for this
recreational use and not be determined merely by the off-road vehicle users
occupation of lands not yet scrutinized for appropriateness.
NOTICE
OF VIOLATIONS
The Petitioners also hereby give you notice that
the Bureau of Land Management (BLM) is
currently in violation of the following provisions of law concerning the
failure to analyze, disclose, and prevent these impacts:
violation of the Endangered Species Act by
allowing motorized vehicle use in habitats of the Lemmon Buckwheat and Long Eared
Bat resulting in takes of this sensitive species and resulting in significant
degradation of this species’ habitat;
violation of the Endangered Species Act by failing
to consult with the U.S. Fish and Wildlife Service over the BLM’s authorization
of motorized vehicle use on the lands and routes in question;
violation of the Clean Water Act and implementing regulations by failing to
protect waters and wetlands of the United States and by allowing the discharge
of material dredged or excavated by motorized vehicle use to be deposited into
waters of the United States;
violation of the National Environmental Policy Act
(“NEPA”) and NEPA implementing regulations for authorizing motorized vehicle
use on the lands and routes in question without evaluating and disclosing the
impacts to the public in an Environmental Impact Statement or Environmental
Assessment;
violation of NEPA for failing to rigorously
explore and objectively evaluate alternatives that would avoid or minimize the
damage occurring from the federal action of authorizing motorized vehicles to
use these lands and routes;
violation of BLM’s “Sensitive Species” management
regulations on the need to ensure activities authorized by the agency do not
significantly impact Sensitive Species and will not contribute to the listing
of any such species nor cause a trend towards listing;
violation of the Administrative Procedure Act
(APA) for allowing continued motorized vehicle use in the Wilson Canyon Area
despite substantial information and knowledge that such use is contrary to law
and is damaging BLM lands and resources;
violation of the APA for unreasonably delaying and
unlawfully withholding action needed to prevent, control, mitigate, and remedy
damage being caused by improper motorized vehicle use in the Wilson Canyon Area
violation of provisions of the BLM Land Health
Standards established to protect resources and to manage all activities on such
lands( including motorized vehicles) to prevent such damage, impacts, and
conflicts.
CONCLUSION
For the foregoing reasons, we urge you to exercise
your authority -- and to fulfill your responsibilities -- by immediately
closing to motorized vehicle use all lands and routes in the Wilson Canyon area
that are causing unacceptable damage and impacts. We are also asking you to instruct the Carson City Field Office
to promptly begin development of a Restoration Plan to determine and schedule
the work that will be needed to restore the areas that have already been
extensively damaged by improper and unlawful motorized vehicle use. However, the most pressing matter is
preventing further damage from occurring.
Thus, the requested Closure Order should be issued immediately and the
Restoration Plan should be developed as expeditiously as possible
afterwards. The Petitioners are
interested in assisting with the restoration effort by contributing strategies
and, if necessary, by doing field work.
Given the urgency of this situation -- and to be
assured that this Petition receives the prompt attention it requires to prevent
further damage and impacts -- we are formally requesting that you provide a
complete and final answer to this Petition by July 31, 2003. In accordance with 5 USC 555(e), your answer
should provide a complete statement of all grounds should you decide to deny
this Petition in whole or in part. We
are reluctant but committed to using whatever legal avenues may be necessary to
halt the damage being done to this special part of our BLM lands by improper
motorized vehicle use. If we do not receive a final answer from you by July 31,
2003, this will be viewed as a full denial of this Petition.
Respectfully submitted,
Lisa Philipps, Grassroots Coordinator
Natural Trails and Waters Coalition
PO Box 7516
Missoula, MT 59807
406-543-9551
Attachments
cc:
Robert V Abbey
Bureau of Land Management
Nevada State Office
1340 Financial Blvd
Reno, NV 89502
Director, Nevada Division of Wildlife
Reno Headquarters
1100 Valley Road
Reno, NV 89512
Allen Biaggi, Administrator
Nevada Division of Environmental Protection
333 W Nye Lane
Carson City, NV 89706-0851
Wilson Canyon Alliance
P O Box 266
Smith, NV 89430