Supreme Court hears arguments in BLM case

Who knew the world’s Wilderness Study Area could cause so much political fallout? Ask anyone who lives out West and has an ATV and chances are that person will be able to give you plenty opinions on the WSA issue. For years, environmental groups and BLM officials have wrangled over the three words. The wrangling continues, however it is now in front of the nine Supreme Court justices.
According to Brian Hawthorne, public lands director for the BlueRibbon Coalition, depending on the outcome, this case could open the “floodgates” 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,” said 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.”
In late March, the Supreme Court heard arguments in Norton v. Southern Utah Wilderness Alliance (SUWA). At issue was whether environmental groups like SUWA could file lawsuits against the BLM not because the BLM didn’t comply with its Federally mandated and legal duties, but rather because the group filing suit didn’t agree with the way the BLM is or did act.
To fully understand the issue, a couple of definitions are needed. The first is Wilderness Study Areas. 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 for which 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.
Problem is, though, 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 can continue in WSAs until they are designated as Wilderness.
“Since only Congress can designate Wilderness, existing activities in Wilderness Study Areas can continue,” says Hawthorne. “That is a mandate from Congress and environmental groups hate that.”
One Example
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.
Start Of The Lawsuit
This is just one example of the 10 million acres of land the SUWA filed to get closed to OHV activity in 1999. The start of events leading to Norton v. SUWA.
In that lawsuit, SUWA claimed that the BLM was not properly managed 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) petitioned successfully for defendant-intervenor status to aid 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.
“Then, in 2000, SUWA filed a for a Temporary Restraining Order on nine popular OHV areas,” explained Hawthorne. “SUWA argued that the BLM failed to comply with land use plans and Executive Orders concerning OHV use and that the BLM ha failed to undertake OHV management, thereby permitting OHV use to illegally damage certain Wilderness Study Areas (WSA).”
The order was thrown out of the district court on the grounds that the SUWA’s claim that the BLM was in neglect of its mandated duties was not true. The case was appealed by SUWA to the Tenth Circuit Court of Appeals and a divided panel remanded the decision back to district court.
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. The BRC, USA – ALL and the BLM petitioned the Supreme Court for writ of certiorari and it was granted.
The original suit was appealed under section 706(1) of the Administrative Procedure Act which allows federal courts to compel government action when an agency, in this case the BLM, has failed to meet legal duties.
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.
What Does It Mean?
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, 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 spend 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, but at the same time 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 there will be immediate closures of WSAs to OHV activity and possibly closure of other “sensitive” areas. psb

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