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SUWA Lawsuit Analysis: Bureaucratic Process Trumps Common Sense

SUWA Lawsuit Analysis:
Bureaucratic Process Trumps Common Sense

Friends,

It was always a possibility that SUWA would score some type of favorable decision out of the Richfield Field Office, so I was eager to read the Court's decision.

Background:
For those just finding out about this lawsuit, please check our previous updates
here, here and here

SUWA has 3 key "pillars" in their latest lawsuit. One pillar consists of claims we've seen before, and which are staples in any foundation-funded anti-access lawsuit:

  • BLM violated NEPA (National Environmental Policy Act) by not doing enough environmental impact analysis,
  • BLM violated FLPMA (Federal Land Policy and Management Act) by not designation enough Areas of Critical Environmental Concern and/or potential Wild and Scenic Rivers
  • BLM violated FLPMA by failing to ensure compliance with federal and state air quality standards.
  • BLM violated the National Historic Preservation Act ("NHPA") by failing to take into account the impact of OHV routes on archeological sites

Another pillar is a claim that BLM is violating the law by not considering OHV impacts on global warming. I'll note that SUWA doesn't seem to be at all concerned about the carbon emissions of hikers who fly in from Europe, Asia and all over the US to enjoy public lands in a manner they deem acceptable. But that'll be fodder for another pithy update some day.

SUWA is also claiming BLM violated its own regulations by authorizing OHV routes, without "minimizing the impacts on soils, vegetation, wildlife, air, water, and cultural resources."

The "minimization criteria" began as a "Executive Order" and has been around since 1972 (Nixon administration). It directs federal land managers addressing motorized access to "consider effects...with the objective of minimizing"  damage to natural resources. The Executive Order's requirements are intended to be placed in the context of BLM's overarching multiple-use mandate.

The Court's decision:
The Court denied most of SUWA's claims, but ruled:

  • BLM's plans were deficient in considering the "minimization criteria,"
  • BLM failed to properly consider Happy Canyon Wash and the spring areas of Buck and Pasture Canyons for eligibility and suitability as Wild and Scenic Rivers
  • BLM failed to properly consider whether portions of the Henry Mountains should be designated "Area(s) of Critical Environmental Concern.

Perhaps most concerning is the Court's decision regarding compliance with the National Historic Preservation Act. Although an agreement between BLM and Utah's State Historic Preservation Office does not require it, the court here seems to be directing the BLM to conduct a Class III archeological survey of every linear foot of every designated route.

Currently, BLM requires the Class III survey for new routes or for activities that require a permit. If a route has existed on the ground, (most routes on BLM's travel plans have existed for many decades) the BLM has conducted cultural surveys on an "as needed" basis.

This decision could raise the bar considerably. Indeed, SUWA is pushing for a "rigorous timetable" for BLM to conduct all these costly archeological surveys and they will demand thousands of miles be immediately closed unless and until the surveys have been completed.

Of course, BLM does not have the funds to conduct all these surveys. And that, dear BRC member, is precisely what SUWA is counting on.

Bureaucratic process trumps common sense - erodes public support for public lands
Years ago, BLM allowed motorized vehicles to travel anywhere. Everyone agreed that with the popularity of OHV use increasing, it would probably be best to limit motorized use to designated routes. Across Utah, those travel plans eliminated cross-country travel (except in dune areas) and closed thousands of miles of roads and trails.

Now, our federal courts have decided that isn't enough.

Paul Turcke, BRC's attorney, was quoted in a national environmental daily as saying the  ruling "epitomizes form over substance." Turcke said "The effort to 'minimize' vehicle travel drips from every page of current agency analysis, yet the courts seem to want a more detailed explanation of every factor considered on every route. The result will be costlier decisions, but not better decisions."

The three branches of our Government seem intent on nitpicking one another into regulatory and fiscal oblivion. I am no student of history but have some vague awareness that there is a historical model that predicts such an outcome for waning empires.

What is our next step?
The immediate next step in the litigation is for the parties file briefs on the proper remedies as a result of this decision by December 6, 2013. The court will then decide what BLM must do to remedy the flaws in their analysis. Although SUWA has already announced it will be pushing for immediate closures, it is impossible to predict what the outcome could be at this time. It is essential that OHV advocates have sufficient resources to withstand and counteract SUWA's offensive.

At that point, the case will move to another BLM office, perhaps Price or Moab. This will mean that thousands of miles of epic recreational roads in Moab and the San Rafael Swell will be under attack.

What you can do to help:
The fight for public access to public lands takes place on three key playing fields. Right now, the battle is raging in the legal and political arenas.

BRC 3- STEP ACTION ITEM HERE

#1 = Become a BRC Pledge Partner: As little as $10 per month makes a huge  
         difference in helping us continue the fight to keep your public lands open.

#2 = Bring a Friend to this Fight: Don't just tell your friends and family  
         about BRC and what we do.  Convince them to make a pledge and 
         join us in our fight by becoming members.We can't do this alone, but
         together we can win this battle.

#3 = Contact your Political Representatives: Tell your U.S. Representative
        that reform is needed with our public land laws. The latest lawsuit by  the
        Southern Utah Wilderness Alliance shows access to vast areas of Utah's
        scenic backcountry is at risk. Encourage them to step up and fight for our
        rights to view and enjoy our public lands.