Ten Bears
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http://www.atvnews.com/output.cfm?id=836443Chaz Rice
ATV News
Wednesday June 16, 2004
One such organization is the BlueRibbon Coalition. Its story has been told before in these pages, but lately it involved itself in what could be a landmark case for ATVs and public lands. Recently, the Supreme Court of The United States, yes the same nine-justice panel that ruled on such cases as Roe v. Wade, Brown v. Board of Education and Bush v. Gore, heard a case involving ATV riders.
Well, Southern Utah Wilderness Alliance v. Norton didn’t specifically cite ATVs — rather it deals with all Off-Highway Vehicles. Depending on the ruling, it could drastically affect some of the most beloved ATV destinations in the West.
How it started
It all started with the words “Wilderness Study Area.” Anyone who lives out West and does anything on public land knows these three words well. For years, environmental groups and Bureau of Land Management officials have wrangled over those three words.
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Areas like the Coral Pink Dunes are one of the sites anti-access groups seek to close to OHV activity.
It doesn’t help matters that the WSA issue is extremely complex and hard to explain. But to understand how a case involving ATVs got to the Supreme Court, a little background is needed.
From 1977 to 1992, with orders from Congress, the BLM put approximately 27 million acres of land from Alaska to New Mexico into Wilderness Study Areas.
These 890 roadless areas were whittled down to 330 areas the BLM wanted Congress to designate as “Wilderness.” Meaning the “area must appear natural with human influence substantially unnoticeable, have outstanding opportunities for solitude or a primitive and unconfined recreation, and be at least 5,000 acres.”
One can quickly see how OHV activities could not take place in areas designated as Wilderness. Congress never acted on the recommendations of the BLM. And while the areas are in political limbo, the BLM has to protect the “wilderness characteristics” of the WSAs. Since management of WSAs is less restrictive than Wilderness areas, OHV activities — including ATV riding — can continue in WSAs until they are designated as Wilderness — whenever Congress decides to do that.
That is a simplified explanation. Politics plays an important role in the WSA and Wilderness issue. Environmental groups are pressing the government to act on the issue and designate these WSAs as Wilderness so no more OHV activity can continue.
Lawsuits
One such tactic environmental groups are taking is lawsuits against the BLM. That is how SUWA v. Norton came to be. When a lawsuit is brought against any government agency — in this case the BLM — it goes to federal district court. Sometimes cases are thrown out of court because the district court does not think the case has merit or credibility. In the original suit, filed in 1999, this was the case.
In that lawsuit, SUWA claimed that the BLM was not properly managing OHV use in its 22 million acres of land in Utah and asked for a ban of OHV use in 10 million acres of public land.
Both the BlueRibbon Coalition and the Utah Shared Access Alliance (USA-ALL) aided in the BLM’s defense of OHV management. The state of Utah and several counties also intervened in the case prompted by concerns that SUWA’s claims also sought to close country roads. That suit was thrown out of the lower court.
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Moquith is another area at risk of being closed. Structures like this are common in the Moab area of Utah.
However, our justice system allows cases to be appealed to a higher court. In the Federal Courts system, this system of courts is called the Circuit Court of Appeals.
“Then, in 2000, SUWA filed for a Temporary Restraining Order on nine popular OHV areas,” explained Brian Hawthorne, public lands director for the BRC. “SUWA argued that the BLM failed to comply with land use plans, Executive Orders concerning OHV use and that the BLM had failed to undertake OHV management, thereby permitting OHV use to illegally damage certain Wilderness Study Areas.”
This appeal was brought to the Tenth Circuit Court of Appeals. The circuit court basically said that the BLM had to do something and the SUWA had the right to force its hand to take a closer look at OHV activity in the WSA.
Like SUWA appealed the lower court decision to a higher court, so too did the BRC, USA-ALL and the BLM to the Supreme Court. The Supreme Court granted the case a hearing, and it heard arguments in late March.
According to Hawthorne, depending on the outcome, this case could open the “flood gates” for environmental groups to file anti-OHV lawsuit after lawsuit against the Bureau of Land Management.
“This lawsuit was designed to change policy instead of, say, designed to address a specific problem in a specific [riding] area,” says Hawthorne. “It was also one of the first environmental lawsuits that was accompanied by a full-on media campaign. We estimate [SUWA] spent over a half million dollars in the run up to the lawsuit.”
One Example
There are several cases that can be cited in the history leading up to the original lawsuit by SUWA. Case in point is the Moquith Mountain Wilderness Study Area of southern Utah — about 200 miles south of Salt Lake City. Within this WSA lies the Coral Pink Sand Dunes, a famous destination for OHV activities including ATVs.
In 1998 the BLM issued an emergency OHV closure of 14,140 acres of the Moquith Mountain Wilderness Study Area, including a portion of the BLM-controlled sand dunes. Approximately 2,000 acres of the dunes would remain open to OHV activity because it is run by the Utah state parks system.
This is where things get messy. Since only part of the dune area was closed to OHV recreation, there was confusion as to what parts were open and what parts were closed. OHVs, particularly ATVs, were still allowed on a loop trail and on two side trails. According to some environmental groups, however, OHVs were not staying on those designated trails and wandering off trail. And even though most off-roaders respect the trails, the few who do not gave environmental groups the ammunition they needed to bring lawsuits.
While the BLM says environmental groups should not have the right to challenge its everyday activities in land management of WSAs like Moquith Mountain, the Supreme Court may uphold the appeal and say exactly the opposite.
Potential Outcomes
The one thing the Supreme Court loves to set is precedents. Basically, a precedent is an instruction for all lower courts to follow. These instructions help lower court judges in their rulings on cases.
There are several important precedents that could be set depending on the Supreme Court ruling. If the Court votes to uphold the lower court ruling, would all riding areas on BLM land be shut down? Not exactly, according to Hawthorne.
“I think it’s probably a overstatement to say activities will ground to a halt. But there is already a concern among land managers over ‘management gridlock’ resulting from litigation. This would only make the situation worse,” he said.
Hawthorne said that the BLM is already spending about 40 percent of its budget in litigation. And he also says that land managers are having a difficult time “implementing any pro-active management because of the endless appeals and protests from our ‘environmentalist’ friends.”
Hawthorn is cautiously optimistic about the future. Even though the Court will not hand down a ruling anytime soon, and even with a worst-case ruling, it does not mean the end of riding in Utah.
“The environmental community would like nothing more than to eliminate the entire OHV market,” said Hawthorne. “If successful, this ruling would be a significant step in achieving that ultimate goal.”
But, he said, he thinks OHV users can sometimes be too pessimistic. “Fact is, the OHV activist groups have managed to keep most of the OHV opportunity open [in Utah] despite the fact that environmental groups have spent millions of dollars trying to lock us out.”
Hawthorn admits there is somewhat a double-edged sword between keeping OHV users active in policy-making, while not becoming too pessimistic to get involved, or, worse yet, not complying with reasonable riding restrictions.
If the Court does rule in favor of the BLM, the riding opportunities available in WSAs will more than likely continue. However, a ruling in favor of SUWA will result in immediate closures of WSAs to OHV activity and possibly closure of other “sensitive” areas. A ruling in the case is expected soon.
