Recreation on Federal Lands
Congressional research reportSep 22, 2010
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Recreation on Federal Lands
Kori Calvert
Information Research Specialist
Carol Hardy Vincent
Specialist in Natural Resources Policy
Ross W. Gorte
Specialist in Natural Resources Policy
September 22, 2010
Congressional Research Service
7-5700
www.crs.gov
RL33525
CRS Report for Congress
Prepared for Members and Committees of Congress
Recreation on Federal Lands
Summary
The growing and diverse nature of recreation on federal lands has increased the challenge of
balancing different types of recreation with each other and with other land uses. Motorized
recreation has been particularly controversial, with issues centering on access and environmental
impacts. The 111th Congress, as well as the Administration, is addressing recreation on federal
lands, including traditional recreational pursuits and newer forms of motorized recreation. This
report covers several prominent issues.
Motorized Recreation on NPS Land, in the National Forests, and on BLM Land. Offhighway vehicle (OHV) use on National Park Service (NPS) lands has fueled ongoing debate
arising from the agency’s dual mission to provide recreational opportunities while preserving and
protecting parkland resources. Relatively few park units are open to public OHV use—12—while
the extent of unauthorized OHV use is in dispute. Currently, 10 units are developing pilot
education and deterrence programs to address unauthorized use, which could serve as models at
other NPS sites. OHV use on Forest Service (FS) and Bureau of Land Management (BLM) lands
has been controversial. Both agencies decide the extent of allowed OHV use through their
planning processes. Under FS regulations governing OHVs, the FS is designating roads, trails,
and areas open for OHV use and prohibiting OHV use outside the designated system. The BLM
has been making similar designations and is addressing transportation issues through national
strategies and other guidance. No general legislation pertaining to OHV use on NPS, BLM, or FS
lands had been introduced as of September 15, 2010, but several measures pertain to recreation
on particular lands administered by these agencies or to certain types of recreation.
Aircraft Overflights. Grand Canyon National Park is at the center of a conflict over whether or
how to limit air tours over national parks to reduce noise. NPS and the Federal Aviation
Administration (FAA) continue to work to implement a 1987 law that sought to reduce noise at
Grand Canyon, and a 2000 law that regulates overflights at other park units. For instance, the
agencies are developing a draft environmental impact statement on options to restore natural quiet
at Grand Canyon. They also have begun to develop air tour management plans for park units with
commercial air tours. Provisions of legislation (H.R. 1586) would affect commercial air tours
over park units by expediting and streamlining agency actions.
Snowmobiles on NPS Land. Regulatory and judicial actions to allow or restrict snowmobile use
have focused primarily on three Yellowstone area park units. Winter Use Plans developed by NPS
to establish numerical limits on snowmobile and snowcoach entries have been the subject of
repeated, and often conflicting, court challenges. On November 20, 2009, NPS issued a final rule
limiting daily oversnow vehicle entries at Yellowstone to 318 snowmobiles and 78 snowcoaches
for the 2009-2010 and 2010-2011 winter use seasons while the agency develops a new long-term
management plan. In July 2010, NPS released a draft of six winter-use alternatives to be further
studied and analyzed.
Personal Watercraft (PWC) at NPS Sites. Since 2003, NPS has completed regulations to open
designated PWC areas at 13 units. On July 8, 2010, a federal judge ordered NPS to re-examine
environmental assessments justifying PWC use at two of those units but did not overturn existing
regulations. One additional unit has proposed allowing PWC.
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Recreation on Federal Lands
Contents
Introduction ................................................................................................................................1
Current Issues .............................................................................................................................4
Motorized Recreation on NPS Land ......................................................................................4
Background ....................................................................................................................4
Administrative Actions....................................................................................................5
Legislative Activity.........................................................................................................8
Snowmobiles on NPS Land...................................................................................................8
Background ....................................................................................................................8
Administrative Actions....................................................................................................9
Legislative Activity....................................................................................................... 12
Aircraft Overflights at NPS Sites......................................................................................... 12
Background .................................................................................................................. 12
Administrative Actions.................................................................................................. 12
Legislative Activity....................................................................................................... 14
Personal Watercraft (PWC) at NPS Sites ............................................................................. 16
Background .................................................................................................................. 16
Administrative Actions.................................................................................................. 16
Legislative Activity....................................................................................................... 17
Motorized Recreation on BLM Land ................................................................................... 17
Background .................................................................................................................. 17
Administrative Actions.................................................................................................. 18
Legislative Activity....................................................................................................... 20
Motorized Recreation in the National Forests ...................................................................... 22
Background .................................................................................................................. 22
Administrative Actions.................................................................................................. 22
Legislative Activity....................................................................................................... 23
Contacts
Author Contact Information ...................................................................................................... 24
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Recreation on Federal Lands
Introduction
Four federal agencies administer about 95% of the approximately 650 million acres of federally
owned land in the United States: the National Park Service (NPS), the Fish and Wildlife Service
(FWS), and the Bureau of Land Management (BLM) in the Department of the Interior (DOI), and
the Forest Service (FS) in the Department of Agriculture. These agencies manage federal lands
for a variety of purposes relating to the preservation, development, and use of the lands and
natural resources. The NPS administers the National Park System for recreational use of
parklands and preservation of park resources, a mission that can be contradictory. The FWS
manages wildlife refuges primarily for protecting and improving fish and wildlife habitats, with
other uses to the extent that they are compatible. The BLM manages public lands and the FS
manages national forests for similar multiple uses, including grazing, recreation, timber, water,
fish and wildlife, and conservation. Many forests and public lands also are available for mineral
exploration and development.
This preservation/use dichotomy, while varying among agencies, is a focal point for debate over
recreation on federal lands. Increased recreation, and allegations of overuse in some areas,
contribute to disagreement on issues of access, regulation, integrity of natural and cultural
resources, and extent of motorized versus nonmotorized recreational activities. Recreation
debates also may arise in areas managed by other federal agencies, such as reservoirs and rivers
managed by the Army Corps of Engineers (in the Department of Defense) and the DOI’s Bureau
of Reclamation, where decisions on water releases may affect recreation. Similarly, recreation
debates may occur in the context of lands within cross-cutting systems, such as the National
Trails System, administered by the FS, NPS, and BLM, often in cooperation with state and local
authorities.
The population growth and development in western states, proximity of many urban areas to
public lands, and growing popularity of outdoor recreation have translated into high demand for a
variety of recreational opportunities on federal lands and waters. BLM, for example, reports that
over 55 million people live within 25 miles of its National System of Public Lands and that twothirds of BLM-administered lands are within 50 miles of an urban area.1 Further, an estimated
80% of the 4,300 Corps recreation areas also are within 50 miles of a large city.2 Agency figures
indicate an overall increase in recreational visits to federal lands in recent decades. The FY2011
DOI budget documents cite approximately 476 million annual recreational visits to DOIadministered sites: more than 57.4 million visits to 3,602 BLM recreational sites; 286 million
recreational visits to 392 NPS units; 42.5 million visits to 551 FWS wildlife refuges; and 90
million visits to 289 Bureau of Reclamation recreation sites.3 The FS reports approximately 198.9
million annual recreational visits to National Forest System lands,4 and the Corps cites
approximately 360 million recreation visits per year.5
1
See http://www.blm.gov/wo/st/en/prog/Recreation.html.
See http://www.iwr.usace.army.mil/docs/VTN/VTNRecreationBro_loresprd.pdf.
3
Land management agency visitation statistics appear on p. DO-20 of the FY2011 Interior Budget in Brief at
http://www.doi.gov/budget/2011/11Hilites/2011_Highlights_Book.pdf.
4
See http://www.fs.fed.us/recreation/programs/nvum/nvum_national_summary_fy2009.pdf, National Visitor Use
Monitoring Results: USDA Forest Service National Summary Report..
5
See http://www.iwr.usace.army.mil/docs/VTN/
VTNRecreationBro_loresprd.pdfhttp://www.iwr.usace.army.mil/waterresources/recreation/recreat
(continued...)
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Over the last 40 years, forms of motorized recreation—snowmobiles, personal watercraft, other
off-highway vehicles—and a variety of newer recreational activities, such as mountain biking and
hang gliding, have evolved and gained in popularity. These new forms intersect with the many
popular traditional forms of recreation, including water-based activities (fishing, canoeing,
kayaking, rafting, boating, etc.) and a variety of land-based pursuits (birdwatching, camping,
hiking, hunting, horseback riding, rock climbing, etc.).
The use of off-highway vehicles (OHVs) on federal lands and waters has been particularly
contentious, and lawsuits have challenged their management. OHV supporters contend that these
vehicles provide outdoor recreation opportunities for the disabled, senior citizens, and others with
mobility limitations; visitor access to hard-to-reach natural areas; economic benefits to
communities serving riders; and, for snowmobiles, increased access to sites during the winter
season. They assert that technological advances do and will continue to limit noise and pollution.
Critics of OHVs raise environmental concerns, including potential damage to wildlife habitat and
land and water ecosystems, such as the impact of dust on winter snow melts and water supply;
noise, air, and water pollution; and a diminished experience for recreationists seeking quiet and
solitude and/or hunting and fishing opportunities. They also point to the beneficial economic
impact of nonmotorized recreation on local communities.6
Clashes over off-road use could be intensifying for riders, law enforcement officers, and property
owners as OHV ridership increases and the amount of land available to OHVs diminishes.7 For
example, BLM and FS are identifying lands for OHV use and limiting or prohibiting OHV use in
other areas; a 2009 Government Accountability Office (GAO) report examines OHV use and
impacts on federal lands, and documents agency OHV enforcement, planning, and management
challenges;8 development has reduced availability of private lands to OHVs; and state legislative
efforts to manage OHV use are reflected in several dozen OHV-related bills introduced and nearly
two dozen enacted in recent years. State measures focus on a range of actions—safety, wildlife
habitat and private property protection, registration requirements and fees, and collaborative
approaches to enforcement.9 As limitations on land management agency staffs and budgets, and
the remoteness of many public lands, exacerbate enforcement challenges, some interest groups
(...continued)
ion.cfm.
6
“Economic model cites benefits of ‘quiet’ recreation,” Land Letter (Oct. 29, 20009), at http://www.eenews.net/
Landletter/2009/10/29/7/; and Economic Impacts of Non-Motorized (Quiet) Recreation on the Wallowa-Whitman
National Forest (March 11, 2009), at http://wilderness.org/files/WWNF-Economic-Impact-Report.pdf.
7
“Off-road vehicle use fuels tension, violence across the U.S.,” USA Today (Dec. 31, 2008), at
http://www.usatoday.com/news/nation/2008-12-30-off-road-clashes_N.htm; “Two ways of life collide in Wonder
Valley,” Los Angeles Times (Jan. 5, 2010), at http://articles.latimes.com/2010/jan/05/local/la-me-outthere5-2010jan05;
and “Off-roaders in search of trails,” USA Today (April 5, 2010), at http://www.usatoday.com/news/nation/2010-04-05atv-parks_N.htm.
8
The report is on the GAO website at http://www.gao.gov/new.items/d09509.pdf.
9
“States Move to Curb Off-Highway Vehicles as Federal Efforts Lag,” Energy and Environment Daily (Dec. 24,
2008), at http://www.tu.org/site/apps/nlnet/content2.aspx?c=kkLRJ7MSKtH&b=4046381&ct=6476183; “Lawmakers
increasingly target unruly off-roaders,” Seattle Times (Feb. 4, 2009), http://seattletimes.nwsource.com/html/
nationworld/2008705391_apoffroadbattle.html; and “States Rev Up ORV Rules,” High Country News (Jun. 8, 2009), at
http://www.glorietamesa.org/States%20rev%20up%20ORV%20rules.pdf. The Specialty Vehicle Institute of America
maintains a chart of “State All-Terrain Vehicle Requirements” at http://atvsafety.org/InfoSheets/ATVChartStateReq.pdf.
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have worked together to identify successful enforcement strategies or to develop educational
guidance for shared trail use and safety.10
Two executive orders define and generally guide OHV use on federal lands. The first (E.O.
11644, February 8, 1972) defines an off-road vehicle (ORV), now commonly referred to as an
off-highway vehicle, as “any motorized vehicle designed for or capable of cross country travel on
or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain,”
with exceptions for any registered motorboat or authorized or emergency vehicles. It was issued
to “establish policies and provide for procedures that will ensure that the use of off-road vehicles
on public lands will be controlled and directed so as to protect the resources of those lands, to
promote the safety of all users of those lands, and to minimize conflicts among the various uses of
those lands.” The order directed each agency to develop and issue regulations to carry out this
purpose and to provide for the designation of areas and trails on which OHVs may be permitted,
and areas in which such vehicles would not be permitted. Agencies were to monitor the effects of
OHV use and amend or rescind area designations or other actions taken pursuant to the order as
needed to further the policy of the executive order.
A subsequent executive order (E.O. 11989, May 24, 1977) amended the 1972 order to exclude
military, emergency, and law enforcement vehicles from the definition of off-road vehicles (to
which restrictions would apply). It provided authority to immediately close areas or trails if
OHVs were causing or would cause considerable damage on the soil, vegetation, wildlife,
wildlife habitat, or cultural or historic resources of particular areas or trails. Areas could remain
closed until the manager determined that “the adverse effects have been eliminated and that
measures have been implemented to prevent future recurrence.” Also, each agency was
authorized to adopt the policy that areas could be closed to OHV use except for those areas or
trails that are specifically designated as open to such use. This meant that only open areas would
have to be marked, a lesser burden on the agencies.
BLM and FS managers formulate guidance on the nature and extent of land uses, including OHV
use, through regulations, national policies, land and resource management plans, and areaspecific decisions. Legislation establishing NPS units may provide for specific OHV uses. In
addition, NPS administers OHV use via unit-specific regulations, management plans, and the
superintendent’s compendium. On August 31, 2006, the NPS released final revised management
policies to guide management throughout the National Park System, in part to reflect changing
recreational uses and evolving technologies. 11 These management policies largely retain the 2001
edition’s emphasis on conserving park resources in conservation/use conflicts (§ 1.4.3).12
The 111th Congress is considering legislation and conducting oversight on issues pertaining to
recreation on federal lands. For example, two companion bills (S. 2999 and H.R. 4589) would
10
Six Strategies for Success: Effective Enforcement of Off-Road Vehicle Use on Public Lands, released in 2007 by
public interest groups concerned about OHV use, presents several case studies on successful enforcement strategies.
Available at http://www.wildlandscpr.org/files/uploads/PDFs/SixStrategiesEnforcementReport.pdf. See also Sharing
our Trails: A Guide to Trail Safety and Enjoyment, released Apr. 29, 2009, at http://www.americantrails.org/resources/
ManageMaintain/Sharing-Trail-Safety-guide-multiuse.html.
11
For additional background information on NPS management policies, see CRS Report RL33484, National Park
Management, coordinated by Carol Hardy Vincent. See also the NPS website at http://www.nps.gov/applications/
npspolicy/index.cfm.
12
The final version of the 2006 NPS management policies is available via the NPS website at http://www.nps.gov/
policy/MP2006.pdf.
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provide consistent enforcement authority to the federal land management agencies in responding
to violations of law and regulations governing the use of public lands, and increase fines and
penalties for deliberate violations to $100,000 and for non-willful violations to $5,000. Land
damage may include, but is not limited to, that caused by recreational OHVs. Another bill (S.
720) directs the federal land management agencies to apply fines collected for damage to their
lands and facilities toward restoration and recovery activities.
This report concentrates on several issues involving motorized recreation, and the extent and
effect of motorized access. For NPS, debate often focuses on a particular form of motorized
recreation within an individual park unit or small number of units. Issues discussed include
snowmobile use at three Yellowstone area parks; overflights of national park units; personal
watercraft (PWC) at popular NPS-administered water sites; and OHV use in certain National Park
System units. Motorized recreation on BLM and FS lands and the planning processes available to
designate their use also are discussed.
While this report addresses specific recreation issues on certain federal lands, it does not cover
additional issues affecting these lands comprehensively. For general background on federal land
management, see CRS Report R40225, Federal Land Management Agencies: Background on
Land and Resources Management, coordinated by Ross W. Gorte. Information on BLM and
Forest Service lands is contained in CRS Report R40237, Federal Lands Managed by the Bureau
of Land Management (BLM) and the Forest Service (FS): Issues for the 111th Congress,
coordinated by Ross W. Gorte and Carol Hardy Vincent. For information on appropriations for
federal land management agencies, see CRS Report R41258, Interior, Environment, and Related
Agencies: FY2011 Appropriations, coordinated by Carol Hardy Vincent.
Current Issues
Motorized Recreation on NPS Land
(by Kori Calvert)
Background
National Park System units may comprise many different features, including historic, scenic, or
scientific resources; outstanding natural and cultural attributes; and outdoor recreational
opportunities. Balancing appropriate recreational use and parkland enjoyment with the protection
and preservation of resources is a significant ongoing challenge to both NPS administrators and
the congressional committees conducting agency oversight. Motorized recreation in particular,
involving forms of off-highway vehicles (OHVs)—four-wheel drive vehicles, all-terrain vehicles
(ATVs), and dune, sand, and swamp buggies—at areas such as Big Cypress National Preserve,
has been controversial.
Excluding Alaska, NPS in 2008 counted 12 park units allowing this type of OHV use by the
general public. Some additional units permit OHV access to inholders, Native Americans, or
others for specific limited purposes under a variety of authorizations. 13 Manufacturers and various
13
Figures confirmed with NPS via phone conversation, Jan. 30, 2008. An inholding is privately owned land within the
boundaries of an NPS unit.
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user groups contend that NPS limits on OHV use unfairly restrict access, establish a precedent for
other federal land managers to impose or extend restrictions, and may be economically harmful to
local communities and industries serving users. Opponents of motorized recreation in NPS units
cite damage to the environment and cultural artifacts, safety concerns, conflicts with other forms
of recreation, and inadequate NPS staff to effectively monitor motorized use and its impact on
park resources. Opponents also cite the NPS statutory mandate to protect park resources and the
availability of other federal lands (FS, BLM) where OHV use may be permitted.
Administrative Actions
As noted above, federal guidance on OHV use on NPS lands is provided in E.O. 11644 and E.O.
11989, in agency regulations and policies, and in other authorities. An NPS unit’s enabling
legislation may establish specific activities as an appropriate use—e.g., water-oriented recreation,
snowmobiling for subsistence or recreational purposes, or OHV travel to reach hunting or fishing
areas. Under NPS regulations (36 C.F.R. § 4.10), OHV use may be allowed in four types of NPS
units whose primary purposes include outdoor recreational opportunities for their visitors—
national recreation areas, national seashores, national lakeshores, and national preserves. Agency
regulations also require special rulemaking, with environmental impact analysis and public
comment, to designate routes and areas for off-road motor vehicles in park units. Additional unitlevel direction for previously designated routes (such as temporary route closures) may be
included in a park’s general management plan and/or determined by the park superintendent (36
C.F.R. § 1.5).
As OHV use on federal lands grew in recent decades, particularly in western states, unauthorized
use also is reported to have increased in some areas, including parklands. In 1999, the
environmental organization Bluewater Network surveyed 108 NPS units and reported findings on
the ecological effects of OHV use at those units. The organization determined that there was
unauthorized use in 40 of them. 14 Bluewater and other groups also petitioned NPS in December
1999 to take specific OHV actions: to ban OHV use in all NPS off-road areas, to define “off-road
vehicle usage” as any use not on “pavement or high-standard gravel roads,” and to develop
procedures for monitoring OHV use and regulatory compliance. In 2004, the NPS met with
Bluewater and agreed to conduct a service-wide survey to determine the extent of authorized and
unauthorized OHV use, its impacts, and any OHV monitoring activity. Of the then 388 NPS park
units, 256 initially responded. 15 NPS asserts that the survey showed unauthorized OHV use in
“several parks” and generally “less than significant” resource damage. 16 Bluewater claims illegal
OHV use in 92 (36%) of those reporting units and resource damage in 71 (28%).
14
Off-the-Track: America’s National Parks under Siege is available via the Bluewater Network website at
http://www.bluewaternetwork.org/reports/rep_pl_offroad_offtrack.pdf. Bluewater’s use of the term “off-road vehicle”
(ORV) encompasses ATVs, four-wheel drive vehicles (jeeps, SUVs, etc.), and dune, sand, and swamp buggies. Twowheeled vehicles (motorcycles) and snowmobiles are not included in Bluewater’s definition. For purposes of this
section, OHV and ORV are synonymous and have the same definition as used by Bluewater.
15
Park units continued to respond to the survey, with a final total of 310 NPS units completing it. (Phone conversation
with Jerry Case, Regulations Program Manager, NPS, Jan. 30, 2008.)
16
Letter from Steve P. Martin, NPS Deputy Director of Operations, to Bluewater Network Executive Director Russell
Long, May 3, 2005. Available via the Bluewater website at http://www.bluewaternetwork.org/npsorv/
letterfromNPS.pdf. See also Bluewater’s response to NPS, available at http://www.bluewaternetwork.org/npsorv/
lettertoNPS.pdf. NPS provided copies of the initial 256 survey responses to Bluewater Network. (Phone conversation
with NPS, Sept. 22, 2006.)
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The NPS survey identified eight park units with authorized public OHV use and special
regulations in place: Big Cypress National Preserve; Gateway and Lake Meredith National
Recreation Areas (NRAs); and Assateague, Cape Cod, Fire Island, Gulf Islands, and Padre Island
National Seashores. According to the agency, four additional units remain open to public OHV
use while it conducts environmental studies and develops special regulations: Glen Canyon17 and
Curecanti18 NRAs, and Cape Hatteras19 and Cape Lookout National Seashores.20 Special
circumstances apply to two additional areas identified in the NPS survey, Little River Canyon
National Preserve and Big South Fork National River and Recreation Area.21 Also, Lake Meredith
NRA requires new regulations to expand current boundaries for OHV riders.22 NPS is
encouraging OHV education via the websites of units permitting OHV use. The agency also is
encouraging units with illegal OHV use to pursue enforcement actions. However, some believe
NPS budgetary and staff constraints could limit enforcement effectiveness.23
On November 29, 2005, Bluewater, Wildlands Center for Preventing Roads, and the National
Parks Conservation Association (NPCA) sued NPS and DOI in the U.S. District Court for the
District of Columbia, alleging that OHVs constitute a “serious threat” to NPS resources which the
agency failed to address. On March 21, 2007, Judge Royce Lamberth dismissed Bluewater from
the case for lack of standing. 24 The remaining parties settled on May 12, 2008. The settlement
requires NPS to implement a pilot public education and deterrence program at 10 NPS units over
the next three years to address unauthorized OHV use.25 Program elements include public
17
72 Fed. Reg. 50393 (Aug. 31, 2007). Notice of Intent to Prepare an Environmental Impact Statement for an Off-Road
Vehicle Management Plan, Glen Canyon National Recreation Area, Arizona and Utah. See the NPS Planning,
Environment and Public Comment website at http://parkplanning.nps.gov/projectHome.cfm?projectID=19520 for
details.
18
Updated information on Curecanti’s Motorized Vehicle Access Plan and Environmental Assessment is available at
http://parkplanning.nps.gov/projectHome.cfm?projectID=19945.
19
75 Fed. Reg. 10307 (Mar. 5, 2010). Notice of Availability of a Draft Environmental Impact Statement for Cape
Hatteras National Seashore. See http://parkplanning.nps.gov/projectHome.cfm?projectID=10641 for further
information.
20
72 Fed. Reg. 44178 (August 7, 2007). Notice of Intent to Prepare a Draft Environmental Impact Statement (DEIS)
for an Off-Road Vehicle Management Plan (ORV Management Plan) for Cape Lookout National Seashore, NC. For
further information, see http://parkplanning.nps.gov/projectHome.cfm?projectID=15978.
21
On August 2, 2010, NPS announced that ORV use at Little River Canyon would cease, effective September 1, 2010.
For additional information, see http://www.nps.gov/liri/parkmgmt/index.htm. Big South Fork is closed to recreational
OHV riders and currently has no designated trails for them. For additional information, including about ATV use on
designated multiple-use trails by licensed hunters actively hunting deer or wild boar, see http://www.nps.gov/biso/
parknews/gmpimplementation.htm.
22
73 Fed. Reg. 33111 (June 11, 2008). Notice of Intent to Prepare an Environmental Impact Statement (EIS) for an
Off-Road Vehicle Management Plan (ORV Management Plan) for Lake Meredith National Recreation Area, Texas.
For additional information, see http://parkplanning.nps.gov/projectHome.cfm?projectID=
20192http://parkplanning.nps.gov/projectHome.cfm?parkId=76&projectId=20192.
23
Letter to Steven P. Martin, NPS Deputy Director, from Robert D. Rosenbaum, Arnold & Porter LLP (on behalf of
Bluewater Network et al.), June 13, 2005, available via the Bluewater website at http://www.bluewaternetwork.org/
npsorv/lettertoNPS.pdf.
24
See https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv2302-63 for the court Order and
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv2302-64 for Judge Lamberth’s Memorandum Opinion.
25
The 10 units are Ozark National Scenic Riverways (MO); Santa Monica Mountains NRA (CA); New River Gorge
National River (including Gauley River NRA) (WV); Joshua Tree National Park (CA); Death Valley National Park
(CA); Big Thicket National Preserve (TX); Sleeping Bear Dunes National Lakeshore (MI); St. Croix National Scenic
River (WI); Parashant National Monument (AZ); and Wupatki, Sunset Crater and Walnut Canyon National Monuments
(AZ) (identified by the NPS as one unit for this purpose).
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outreach, education, and enforcement activities such as officer training and increased fines and
penalties. If successful, the program could become a model for adoption at additional park units.
The settlement also requires NPS to develop environmental impact statements and special rules
governing current OHV use at Glen Canyon NRA and Cape Lookout National Seashore.
Meanwhile, site-specific conflicts among various constituencies continue. For instance, there is
ongoing disagreement at Big Cypress National Preserve over OHV trail designation, its effects on
endangered Florida panthers and their habitat, and access to lands for hunting. On July 14, 2009,
NPS announced the availability of its draft planning document for the management and use of
approximately 147,000 acres added to the preserve in 1988. The agency’s preferred alternative
includes proposed wilderness designations and designation of up to 140 miles of “sustainable
primary ORV trails,” some of which would run through non-wilderness corridors to provide
hunters access to wilderness areas where vehicles are not allowed. A public comment period
closed on September 30, 2009, and NPS is assessing these comments and developing a final
management plan.
At Cape Hatteras National Seashore, environmental groups, represented on the advisory
committee created to assist in the development of a long-term OHV management plan, sued NPS.
In their complaint of October 18, 2007, the plaintiffs alleged that the OHV use permitted under
the existing interim NPS management plan failed to provide adequate protection for seashore
resources, including rare turtle, avian, and plant species.26 Under a consent decree of April 16,
2008, the parties agreed to allow OHV beach access to continue year-round at Cape Hatteras, to
place seasonal limitations on night driving to protect sea turtles, and to create and monitor defined
buffer areas closed to OHVs and pedestrians during specified spring-summer periods of bird
breeding, nesting, and fledging.27 The expanded beach closures provide protection for wildlife
resources but are unpopular with fishermen and local businesses. The negotiated rulemaking
committee was unable to reach consensus on a long-term OHV management plan by February
2009; new proposed regulations are being developed by the park’s superintendent. A draft OHV
management plan/environmental impact statement (DEIS), released in March 2010, evaluates the
impacts of six alternatives for OHV use and seashore access.28 The preferred alternative (F) is
designed to provide an array of OHV and non-OHV recreational opportunities, including access
to seashore spits and points, but often with specific controls or restrictions in place to limit
impacts on sensitive natural resources.
Separately, on December 18, 2008, NPS issued a proposed rule addressing mountain bicycles
within NPS units.29 The proposed rule would revise current regulations (36 C.F.R.§ 4.30) and
park management policies (§ 9.2.2.5) that require special regulations to designate bicycle trails
other than those on park roads, parking lots, and within developed areas such as campgrounds. Its
intent is to provide “park superintendents with a more efficient and effective way to determine
whether opening existing trails to bicycles would be appropriate in the park unit they manage.” It
would authorize park superintendents to open existing hiking and horse trails for biking if such
26
See http://www.southernenvironment.org/lawlibrary/coast/2007-10-18_hatteras.pdf for a copy of the complaint.
27
A copy of the consent decree is available via the Southern Environmental Law Center at
http://www.southernenvironment.org/lawlibrary/coast/2008-04-16_ORV_consent_decree.pdf. See also
http://www.nps.gov/caha/planyourvisit/off-road-vehicle-use.htm for additional information on OHV management at
Cape Hatteras.
28
See http://parkplanning.nps.gov/document.cfm?parkID=358&projectID=10641&documentID=32596 for information
on and the text of the DEIS.
29
73 Fed. Reg. 76987 (Dec. 18, 2008), as corrected by 73 Fed. Reg. 78680 (Dec. 23, 2008).
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proposed designations are noncontroversial and would require input from the public and
environmental assessments in conjunction with park-specific trail decisions. This trail designation
process could trigger formal rulemaking if the effect on an existing trail is significant. Special
regulations would continue to be required for any bicycle trails outside developed areas involving
new construction. Mountain biking advocates such as the International Mountain Biking
Association (IMBA) actively support opening additional trails to mountain bikers, while other
groups have expressed concern that easing trail designation procedures could cause resource
damage, such as erosion; diminish the enjoyment of visitors on foot or horseback; or potentially
open proposed wilderness areas to bikes. The comment period closed on February 17, 2009, and
NPS is assessing the environmental impact of the proposed rule. Meanwhile, the IMBA and NPS
renewed a five-year partnership agreement (from 2010 to 2015) that establishes a formal
framework to build on existing projects and explore additional opportunities for mountain biking
in some national park units.
Legislative Activity
H.R. 718, introduced on January 27, 2009, and S. 1557, introduced August 3, 2009, are similar to
two bills from the 110th Congress (S. 3113 and H.R. 6233) in their intended effect on OHV
management at Cape Hatteras National Seashore. The bills seek to nullify the April 2008 consent
decree placing seasonal restrictions on OHV access to defined beach areas at Cape Hatteras
National Seashore. Further, they would reinstate the NPS Interim Management Strategy issued on
June 13, 2007, until a final OHV management plan and implementing rule are completed
(anticipated in 2010 and 2011, respectively). The 110th Congress conducted Senate and House
committee hearings (July 30, 2008 and September 11, 2008, respectively) focusing on the impact
of limited public beach access for fishing and other recreational activities on tourism and the local
economy; one Member said a nearly 15% reduction in seashore visits since implementation of the
settlement was economically damaging the area’s tourism dependent businesses. Bill sponsors
also expressed concern that the seashore was being managed via a court decision without
sufficient public input. One witness testified that resource closures, from which nesting shorebird
and turtle populations have benefitted and increased in number, affected small sections of beach.
An NPS representative testified that the consent decree accommodated both resource protection
and public access to the seashore, and that the proposed legislation, by reducing protected areas,
could reverse gains in nesting activity. The Senate Committee on Energy and Natural Resources
voted 11-12 not to report S. 3113 on September 11, 2008.
Snowmobiles on NPS Land
(by Kori Calvert)
Background
Currently, of the 392 NPS units covering over 84 million acres of land, 43 allow snowmobiles.
Proposals to regulate recreational snowmobile use in NPS units have been controversial, with
debate often mirroring the preservation/use conflict within the NPS mission. On April 27, 2000,
the NPS announced the strict enforcement of long-standing regulations on snowmobile use,
which would have prohibited recreational snowmobiling throughout the National Park System.
Limited exceptions to this enforcement policy included Yellowstone and Grand Teton National
Parks, park units in Alaska, Voyageurs National Park (MN), and access to private land within or
adjacent to a park. By July 2000, the Interior Department had modified its strict enforcement
stance: snowmobiles would not be banned in the 43 park units permitting such use prior to the
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April 2000 announcement, pending formal rulemaking and public comment. To date, NPS has
taken no further action on a general policy for snowmobiles.30 However, the final NPS
management policies released on August 31, 2006, did include new language to cover both
snowmobiles and oversnow vehicles (§ 8.2.3.2). They state that, outside Alaska, special
regulations are required to designate snowmobile and oversnow vehicle routes after park planning
determines such use to be appropriate. Designated routes are limited to those used by motorboats
and motorized vehicles in other seasons.
Administrative Actions
Since the summer of 2000, regulatory and judicial actions to restrict or allow snowmobile use
have centered on Yellowstone and Grand Teton National Parks and the connecting John D.
Rockefeller, Jr., Memorial Parkway. The NPS issued final rules (November 20, 2009) allowing
daily Yellowstone entry to 318 commercially guided, best available technology (BAT)
snowmobiles and 78 commercially guided snowcoaches through the 2010-2011 winter season,31
and limited use in Grand Teton and the Parkway. 32 The Yellowstone rule effectively reinstates
limits proposed in November 2008 but then overruled in federal court. From December 2008 until
promulgation of the new rule, the parks had been operating under a reinstated 2004 rule allowing
daily oversnow access in Yellowstone to 720 snowmobiles and 78 snowcoaches.
During the two years that the November 2009 interim rule is in place, NPS will develop a new
long-term winter use plan for motorized oversnow travel. Most recently, in July 2010, the park
released a draft range of six potential alternatives for managing winter use. The “no-action”
alternative would eliminate all snowmobiles and snowcoaches after the 2010/2011 winter season.
Another alternative would phase out snowmobiles and transition to snowcoaches only. Two
alternatives focus on different daily limits for snowmobiles and snowcoaches. A “variable
management” alternative provides for daily and seasonal limits on motorized oversnow entries
and allows for some unguided snowmobile access. A “mixed-use” alternative proposes plowing
certain park roads to allow access for commercial buses and vans, and grooming the south
entrance road for use by a limited number of snowmobiles and snowcoaches. NPS is analyzing
these alternatives and anticipates release of the winter use draft environmental impact statement
(DEIS) in early 2011.33
Nearly a decade of regulatory-judicial conflict began when the Clinton Administration issued
final rules in January 2001 to incrementally eliminate snowmobile use in these three park units,
with limited exceptions, in favor of multi-passenger “snowcoaches” by the 2003-2004 winter
season. 34 However, a June 2001 Bush Administration lawsuit settlement with the International
Snowmobile Manufacturers Association (ISMA) and the State of Wyoming required NPS to
revisit the snowmobile ban and consider any additional information on “cleaner, quieter”
snowmobile technology. A new NPS final rule issued on December 11, 2003, reversed the
snowmobile ban in favor of daily entry limits, use of trained guides, snowmobile emission
30
For background information on snowmobiles in NPS units generally, see CRS Report RL31149, Snowmobiles:
Environmental Standards and Access to National Parks, by James E. McCarthy.
31
74 Fed. Reg. 60159 (Nov. 20, 2009).
32
74 Fed. Reg. 60183 (Nov. 20, 2009).
33
See http://www.nps.gov/yell/planyourvisit/winteruse.htm for additional information.
34
66 Fed. Reg. 7260 (Jan. 22, 2001).
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standards, and an “adaptive management strategy” allowing park managers to take remedial
action if monitoring indicates unacceptable impacts from air and noise pollution. 35
Subsequent legal challenges effectively split the 2003-2004 winter season, with each sub-season
managed under different rules with significantly different limits on daily snowmobile entries.
These conflicting rulings created confusion for park visitors, local communities, and businesses,
with many unsure whether they could visit the park in winter and what winter use rules were in
effect.
Subsequently, on November 10, 2004, the NPS issued a final rule to implement a temporary
winter use management plan effective for three winter seasons, through 2006-2007 (hereafter
“2004 rule”). 36 The intent of this interim 2004 rule was to provide certainty to gateway
communities, businesses, and park visitors while NPS completed long-term environmental impact
analyses of motorized oversnow vehicles on the three area parks and developed a new long-term
plan to manage winter recreational use.
A subsequent Record of Decision (ROD, signed November 20, 2007) and a final rule issued on
December 13, 2007, was to provide long-term regulatory guidance for managing snowmobile and
snowcoach use within the three area parks.37 For the 2007-2008 winter season, the 2007 rule
mirrored the 2004 rule it replaced. It continued with 720 guided BAT snowmobiles per day in
Yellowstone, and combined daily access for 140 snowmobiles in Grand Teton and the Rockefeller
Parkway—most with BAT emission and noise pollution standards but no guiding requirements.
The 2007 rule capped daily Yellowstone snowcoach entries at 78 and maintained the requirement
limiting all snowcoach and snowmobile travel to existing park roads groomed for their use.
Avalanche control operations continued, allowing motorized and nonmotorized oversnow travel
via Sylvan Pass near Yellowstone’s East Entrance
The final 2007 rule also mandated more restrictive measures beginning with the 2008-2009
winter season, but allowed park management to use “adaptive management” to adjust
snowmobile and snowcoach numbers up or down based on impact monitoring. It allowed 540
BAT snowmobiles and 83 snowcoaches per day in Yellowstone, all commercially guided, with no
more than 11 snowmobiles per group, including the guide; and combined daily access for 65
snowmobiles—62% with BAT requirements but none with guiding requirements—to Grand
Teton and the Rockefeller Parkway daily. However, environmental groups challenged the 2007
rule and called for reinstatement of the Clinton Administration snowmobile ban,38 while the State
of Wyoming and others sought to overturn the 2007 rule and increase the number of daily
snowmobile entries.39
On September 15, 2008, Judge Emmett Sullivan of the U.S. District Court for the District of
Columbia vacated the 2007 final rule, finding it “arbitrary and capricious, unsupported by the
35
68 Fed. Reg. 69267 (Dec. 11, 2003).
36
69 Fed. Reg. 65348 (Nov. 10, 2004). Available via the NPS website at http://www.nps.gov/yell/planvisit/winteruse/
fedregfinalrule11-10.pdf.
37
See http://www.nps.gov/yell/planyourvisit/upload/rod_final.pdf, and 72 Fed. Reg. 70781 (Dec. 13, 2007) at
http://www.nps.gov/yell/parkmgmt/upload/finalrule13Dec2007.pdf for the ROD and final rule, respectively.
38
Greater Yellowstone Coalition et al. v. Dirk Kempthorne, D.D.C., No. 07-CV-2111; and National Parks
Conservation Association v. U.S. Department of the Interior, D.D.C., No. 07-CV-2112.
39
Wyoming v. U.S. Department of the Interior et al., D. Wyo., No. 07-CV-319B and No. 08-CV-0004-B.
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record, and contrary to law,”40 thereby putting the 2008-2009 winter season in limbo unless NPS
developed a new plan and regulation for snowmobiles and snowcoaches. In response, the agency
released for comment a Winter Use Plans Environmental Assessment on November 3, 2008, and a
new proposed rule on November 5, 2008. They allowed daily entry for three winters for up to 318
commercially guided BAT snowmobiles and 78 commercially guided snowcoaches. 41 However,
on November 7, 2008, the Wyoming District Court Judge Clarence Brimmer issued an order
finding that “equity requires reinstatement of the 2004 temporary rule to provide some semblance
of order in this disordered and confusing state of affairs”42 until NPS can “promulgate an
acceptable rule to take its place.”43 Such reinstatement, without the sunset provision, “will
provide businesses and tourists with the certainty that is needed in this confusing litigation.”44
NPS issued a final rule on December 9, 2008, in accordance with Judge Brimmer’s order, once
again allowing up to 720 snowmobiles and 78 snowcoaches per day in Yellowstone.45 However,
the park reported decreased average daily entries of 187 snowmobiles and 32 snowcoaches in
2009-2010, and 205 snowmobiles and 29 snowcoaches in 2008-2009, compared to 2007-2008
averages of 294 snowmobiles and 35 snowcoaches. Overall, 2008-2009 snowmobile visitors were
down approximately 25% and snowcoach visitors 15% from the previous winter season.46 The
data on oversnow vehicle visitors in 2009-2010 showed a decrease in snowmobile visitors, offset
by a slight increase in snowcoach visitors, but overall numbers remained flat. A light snow year
and the weakened economy may have contributed to the reduced number of winter visitors.
With the November 2009 interim rules now in place through the 2010-2011 winter use season and
an appeal dismissed by the United States 10th Circuit Court of Appeals in Denver, 47 NPS will
prepare yet another environmental impact statement (EIS) and long-term winter use plan to
address whether motorized winter use is appropriate and, if so, the types, extent, and locations of
such use. Public scoping, the initial phase of this process, elicited over 9,000 comments and was
completed in March 2010. NPS is analyzing a draft range of winter use alternatives (released in
July 2010) for incorporation in its winter use draft environmental impact statement, anticipated to
be issued sometime in February/March 2011.48
40
See http://www.nps.gov/yell/parkmgmt/upload/sullivan_ruling-091508.pdf, p. 61.
41
See http://www.nps.gov/yell/parkmgmt/upload/2008_winter_use_ea(p1).pdf (Part 1) and http://www.nps.gov/yell/
parkmgmt/upload/2008_winter_use_ea(p2).pdf (Part 2); and 73 Fed. Reg. 65784 (Nov. 5, 2008).
42
See http://www.nps.gov/yell/parkmgmt/upload/111008OrderonOlenhouseMotions.pdf, p. 15.
43
Ibid., p. 21.
44
Ibid., p. 14.
45
73 Fed. Reg. 74606 (Dec. 9, 2008).
46
“Yellowstone Reports Drop in Winter Visitation,” Yellowstone National Park news release (Apr. 2, 2009), at
http://www.nps.gov/yell/parknews/09020.htm; and “Yellowstone Winter Visitor Figures a Mixed Bag,” Yellowstone
National Park news release (Apr. 5, 2010) at http://www.nps.gov/yell/parknews/10022.htm. See also
http://www.nature.nps.gov/stats/park.cfm?parkid=421.
47
State of Wyoming et al. v. U.S. Department of the Interior et al., No. 09-8035, at http://www.ck10.uscourts.gov/
opinions/09/09-8035.pdf.
48
75 Fed. Reg. 4842 (Jan. 29, 2010). Additional information about the public scoping process is available at
http://www.nps.gov/yell/parkmgmt/upload/2010-01-27_public_scoping.pdf. The winter use planning process also may
be tracked at http://parkplanning.nps.gov/projectHome.cfm?parkId=111&projectId=29281.
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Legislative Activity
No legislation pertaining to snowmobiles in NPS units had been introduced in the 111th Congress
as of September 20, 2010. Previous Congresses have included language regarding snowmobiles
in Yellowstone in appropriations bills, generally to ensure that judicial rulings could not deny
snowmobiles entry during a specified winter use season.
Aircraft Overflights at NPS Sites
(by Carol Hardy Vincent)
Background
The NPS is to provide for the public enjoyment of parklands while protecting resources, while the
Federal Aviation Administration (FAA) controls airspace and aircraft overflights. This has created
a conflict between resource management and aviation access authorities and their constituencies.
Grand Canyon National Park has been the focal point of a conflict between groups seeking to
limit overflights of national parks due to concerns about noise and safety, and air tour operators
whose economic stability, with ripple effects on local businesses, may depend on providing
overflights. The National Parks Overflights Act of 1987 (P.L. 100-91) directed NPS to
recommend a flight control plan for Grand Canyon that would provide a “substantial restoration
of the natural quiet” and prohibited flights below the canyon’s rim. It required an NPS study of
the effects of all aircraft overflights, which was submitted to Congress in 1994.49
The National Parks Air Tour Management Act of 2000 (Title VIII, P.L. 106-181, hereafter “Air
Tour Act”) regulates commercial air tours at other park units. It requires the FAA and NPS to
create management plans for air tours at individual park units and within a half-mile of their
boundaries. Each plan could prohibit or limit air tours, such as by route and altitude restrictions.
The act also requires the FAA to establish “reasonably achievable” requirements for quiet aircraft
technology for the Grand Canyon within one year and to designate, by rule, Grand Canyon routes
or corridors for aircraft and helicopters using quiet technology. Quiet aircraft would not be
subject to existing caps on canyon overflights.
Administrative Actions
Several actions have been taken to achieve the substantial restoration of natural quiet at Grand
Canyon. First, a limitations rule capped the annual number of commercial air tour overflights at
Grand Canyon.50 Second, the airspace rule expanded flight-free zones and restrictive routing over
the canyon. East-end Special Flight Rules Area (SFRA) airspace changes were delayed until
February 20, 2011.51 Third, the FAA issued a final rule establishing a standard for quiet
technology for certain aircraft in commercial air tour operations over Grand Canyon.52 The rule
identifies which aircraft meet the standard. In future rulemaking, the FAA is expected to address
49
U.S. Dept. of the Interior, National Park Service, Report to Congress: Report on Effects of Aircraft Overflights on the
National Park System, listed under the topic heading “Documents” at http://www.nps.gov/grca/naturescience/
airoverflights_documents.htm.
50
65 Fed. Reg. 17708 (April 4, 2000), effective May 4, 2000.
51
71 Fed. Reg. 9439 (Feb. 24, 2006).
52
70 Fed. Reg. 16084 (March 29, 2005).
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the routes or corridors for commercial air tour operations that use the quiet technology. Fourth,
data on natural ambient sound levels were collected by the NPS and are being used, together with
air tour reported flight operations data and radar tracking data, to model air tour traffic and
aircraft noise at Grand Canyon. The model is being used to measure success in restoring natural
quiet, and the noise impact of various alternatives.
The FAA and NPS published a notice of intent to prepare an environmental impact statement
(EIS) on options that could be taken to restore natural quiet at Grand Canyon. 53 The agencies are
developing a draft EIS, and currently anticipate that the draft will be available by the end of 2010.
They currently are considering several alternatives, including the status quo, with a range of
options for restoring natural quiet while allowing for a viable air tour industry. Changes under
consideration include altered flight free zones, different altitudes and locations of air tour routes,
quiet aircraft technology incentives, and limitations on the number and timing of flights
The NPS issued a notice to clarify the definition of “substantial restoration of natural quiet,” on
the grounds that the mandate to substantially restore natural quiet (in P.L. 100-91) cannot be
achieved under the current definition.54 Further, the agency stated that a new definition is needed
to address a 2002 court decision and the volume of higher-altitude flights over the Grand Canyon.
The new definition will address noise of all aircraft, while distinguishing between aircraft above
and below 17,999 feet. The EIS in development would be based on this new definition.
Other regulatory actions affect commercial air tours at park units. The Air Tour Act final rule55
requires air tour operators to apply for authority to fly over national park and abutting tribal lands.
The FAA received applications for commercial air tours over 106 of the 392 park units, and has
granted interim operating authority to all applicants. Application triggers development of an Air
Tour Management Plan (ATMP) by the FAA and NPS for each unit where none exists.56 The
purpose of a plan is to mitigate or prevent any harm by commercial air tours to natural and
cultural resources, visitor experiences, and tribal lands. Development of an ATMP requires an
environmental analysis under the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C.
§§4321-4370f). The FAA and NPS currently are developing their first ATMPs for several areas,
but none have been completed to date. The agencies have been determining the ambient sound
levels at park units for which ATMPs are being developed, as a baseline for measuring noise
sources and impacts.
On September 30, 2005, the FAA and NPS released an implementation plan for the development
of the ATMPs that sets out the roles and responsibilities of the two agencies in developing
ATMPs. The agencies have revised the implementation plan to make clarifications and
incorporate information learned from ongoing development of ATMPs. Nevertheless,
development of ATMPs has been proceeding much slower than had been expected.
A January 2006 Government Accountability Office (GAO) report addressed the impact of the
delay in implementation of the Air Tour Act.57 The report concluded that the delay has had little
53
71 Fed. Reg. 4192 (Jan. 25, 2006).
73 Fed. Reg. 19246 (April 9, 2008) and 73 Fed. Reg. 55130 (September 24, 2008).
55
67 Fed. Reg. 65661 (Oct. 25, 2002).
54
56
The FAA provides information on the National Parks Air Tour Management Program via its website at
http://www.faa.gov/about/office_org/headquarters_offices/arc/programs/air_tour_management_plan/.
57
U.S. Government Accountability Office, National Parks Air Tour Management Act: More Flexibility and Better
(continued...)
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effect on park units, but has limited the ability of tour operators to make major business decisions.
The agency identified four issues for Congress and the agencies to address to improve
implementation, relating to the lack of flexibility for determining which parks need plans, an
absence of NPS funding for plan development, limited ability to verify and enforce the number of
air tours, and inadequate FAA guidance on the act’s safety requirements.58
The FAA issued a final rule to provide safety standards for commercial air tours nationally,
including over Grand Canyon and other park units.59 The rule seeks to increase air tour safety
through measures including requirements for enhanced passenger briefings, provision of life
preservers and helicopter floats for certain over-water flights, and development and compliance
with a helicopter performance plan for each commercial air tour.
The Air Tour Act required the FAA and the NPS to establish an advisory group to provide
continuing advice regarding commercial air tours over and near national parks. Accordingly, the
agencies established the National Parks Overflights Advisory Group, composed of representatives
of general aviation, air tour operations, environmental groups, and Native American tribes. The
group is co-chaired by the FAA Administrator and the NPS Director or their designees. It meets
one to three times per year, and notices of its meetings are published in the Federal Register. The
group provides advice on a range of issues, including (1) implementation of the Air Tour Act, (2)
quiet aircraft technology for use in commercial air tours over parks, (3) safety and environmental
issues related to air tours.
Legislative Activity
Provisions of broad aviation legislation would have affected commercial air tours over park units.
The versions of H.R. 1586 that were passed by the House and Senate in March 2010 contained
provisions seeking to expedite and streamline agency actions, in part because of the difficulty in
completing ATMPs. However, H.R. 1586 as enacted (P.L. 111-226) did not pertain to air tour
management and FAA reauthorization. The air tour management issue (along with other
provisions of FAA reauthorization) is being considered by Congress but has not been
reintroduced in other legislation.60
The version of H.R. 1586 that was passed by the House on March 25, 2010, would have provided
that, in lieu of an ATMP, the NPS Director and FAA Administrator could enter into a voluntary
agreement with a commercial air tour operator that would govern commercial air tours over a
park unit. Park units with 50 or fewer annual air tour flights would be exempted from the
requirement for an ATMP or voluntary agreement, although the NPS Director could disallow an
(...continued)
Enforcement Needed, GAO-06-263, (Washington, DC: GPO, Jan. 2006), 64 p. Available on the GAO website at
http://www.gao.gov/new.items/d06263.pdf.
58
Agency actions on GAO recommendations are on the GAO website at http://www.gao.gov/products/GAO-06263#recommendations.
59
72 Fed. Reg. 6884 (Feb. 13, 2007). The rule was effective on March 15, 2007, except that certain provisions became
effective on September 11, 2007.
60
The House- and Senate-passed versions of H.R. 1586 discussed in this section can be viewed in the Legislative
Information System (LIS) under the bill number. In addition, separately enacted aviation legislation─P.L. 111-216─did
not include provisions on air tour management. For information on the reauthorization of aviation programs generally,
especially through H.R. 1586, see CRS Report R40410, Federal Aviation Administration (FAA) Reauthorization: An
Overview of Legislative Action in the 111th Congress, coordinated by Bart Elias.
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exemption. Among other provisions, the bill would have established reporting requirements for
commercial air tour operators, and could have provided for more interim operating authority
because interim conditions have prevailed for longer than had been anticipated.
Some of the air tour provisions in the House- and Senate-passed versions of H.R. 1586 were
similar, although many of them differed. For instance, the Senate version (passed on March 22,
2010) would have allowed for development of a voluntary agreement to govern air tours over
national park units, but did not exempt parks with 50 or fewer annual flights from the requirement
to develop an ATMP or a voluntary agreement. Both versions would have allowed the agencies to
modify interim operating authority, but only the Senate-passed version would have allowed an air
tour operator that obtains operating authority for commercial air tours to transfer that authority to
another air tour operator. Both versions would have established reporting requirements for
commercial air tour operators, but the Senate-passed version sought to rescind the operating
authority of a commercial air tour operator that does not report and to require the Inspector
General of the Department of Transportation to audit the reports. Also, only the Senate version
would have authorized the Secretary of the Interior to assess a fee on commercial air tour
operators, and the Secretary was to collect sufficient revenue to pay the costs of developing
ATMPs.
As passed by the Senate, H.R. 1586 did not include the text of a proposed amendment regarding
overflights of Grand Canyon National Park.61 The amendment sought to clarify when the
“substantial restoration of natural quiet” would be achieved at Grand Canyon, revise curfews for
flights, modify routes for air tours, require air tour aircraft to convert to quiet aircraft technology
within 15 years of enactment, prohibit reducing the flight allocation cap, and provide for
rulemaking to increase the flight allocation cap, among other changes. The amendment was
supported as advancing the restoration of natural quiet at Grand Canyon while providing for
opportunities for air tours, but was opposed in part because the agencies are nearing completion
of an environmental impact statement on this issue.
A May 2006 GAO report addressed NPS collection of air tour fees.62 The report determined that
some, but not all, fees have been collected from air tour operators at the three national parks
where fees are charged: Grand Canyon, Haleakala, and Hawaii Volcanoes. It concluded that the
ability of the NPS to collect fees is hindered because the agency cannot verify the number of
tours over the parks, it cannot effectively enforce compliance, and the two key laws have different
geographic applicability. The report stated that Congress should consider reconciling the
geographic applicability of the relevant laws. It further recommended that the Secretary of
Transportation direct the FAA to take certain actions to ensure that the NPS receives information
on air tour operations at Grand Canyon, and report to Congress on the likely effects on air tour
operators of air tour fees, as required under the Air Tour Act.63
61
S.Amdt. 3528, withdrawn in the Senate.
U.S. Government Accountability Office, National Parks Air Tour Fees: Effective Verification and Enforcement Are
Needed to Improve Compliance, GAO-06-468, (Washington, DC: GPO, May 2006), 37 p. Available on the GAO
website at http://www.gao.gov/new.items/d06468.pdf.
63
Agency actions on GAO recommendations are on the GAO website at http://www.gao.gov/products/GAO-06468#recommendations.
62
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Personal Watercraft (PWC) at NPS Sites
(by Kori Calvert)
Background
PWC are high-speed, very shallow-draft, and highly maneuverable watercraft “operated by a
person or persons sitting, standing, or kneeling on the vessel rather than within the confines of the
hull” (36 C.F.R. § 1.4). Often used to perform stunt-like maneuvers, PWC include watercraft
known by their brand and generic names as Jet Ski®, Sea-Doo®, Surf-jet®, water sled, wet jet,
Wavejammer, Wetbike, and WaveRunner®. While PWC represent a small segment of the
recreational boat market—the National Marine Manufacturers Association (NMMA) estimates
1.29 million PWC in use in 2009,64 about 8% of 16.74 million recreational boats—the number of
PWC accidents has raised concerns. There were 878 PWC injuries and 42 deaths reported for
2009, and 920 injuries and 45 deaths for 2008. Only open motorboats rank ahead of PWC among
vessel types with higher casualty numbers.65 In addition to safety issues, critics of PWC use cite
environmental issues, including noise, air, and water pollution, as well as damage to land, plants,
and wildlife. Supporters of access for PWC contend that technological advances enable
manufacturers to produce cleaner, more efficient machines, and point to the economic benefits to
communities serving users. PWC users assert that in park units that allow motorized boating
generally, PWC also should be allowed. Recent controversies have focused on regulatory actions
that would restrict recreational use of or access for these vehicles, often in specific park units.
Administrative Actions
The NPS currently is evaluating PWC use in several of its 392 units. That effort began in 2000
when the agency issued a rule prohibiting PWC use in 66 of the 87 units where motorized boats
were allowed. 66 The rule allowed PWC use to continue until April 22, 2002, at the remaining 21
units while the NPS evaluated whether to permanently authorize PWC use and develop special
regulations. The rule recognized that certain NRAs, such as Lake Mead and Glen Canyon, might
choose to continue PWC use because their establishing legislation emphasized motorized waterbased recreation as a primary purpose. An April 2001 negotiated settlement of a lawsuit by
Bluewater Network and Earth Island Institute over the PWC rule prohibited PWC from the 21
areas unless the NPS initiated park-specific rules and environmental assessments. PWC could
continue to operate during the rulemaking process, but only until specified “grace period”
deadlines.
The NPS prohibited PWC use (effective April 22, 2002) in 5 of the 21 areas that completed an
environmental review process and also favored PWC bans: the Cape Cod and Cumberland Island
National Seashores, Delaware Water Gap and Whiskeytown NRAs, and Indiana Dunes National
Lakeshore. For 13 other units, NPS authorized PWC use in designated areas: in 2003, at Lake
Mead and Glen Canyon (Lake Powell) NRAs, and Assateague National Seashore; in 2004, at
64
See http://www.nmma.org/facts/boatingstats/2009/files/Abstract.pdf, Table 1.3, “Recreational Boats in Use by
Type,” from the NMMA 2009 Recreational Boating Statistical Abstract.
65
See http://www.uscgboating.org/assets/1/workflow_staging/Publications/394.PDF, Table 1 (p. 7), “Vessel Types
with the Top Casualty Numbers” from Recreational Boating Statistics 2009; for the 2008 edition, see
http://www.uscgboating.org/assets/1/Publications/Boating_Statistics_2008.pdf.
66
65 Fed. Reg. 15077 (March 21, 2000); effective April 20, 2000.
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Lake Meredith, Lake Roosevelt, Amistad, and Chickasaw NRAs; in 2005, at Bighorn Canyon
NRA, Fire Island National Seashore, and Pictured Rocks National Lakeshore; and in 2006, at
Gulf Islands and Cape Lookout National Seashores and Curecanti NRA. For one unit—Gateway
NRA (February 24, 2006)—the NPS has proposed rules to allow PWC and will issue final
regulations upon completion of environmental impact studies. The last two areas—Padre Island
National Seashore and Big Thicket National Preserve—have been closed to PWC pending
completion of environmental assessments and rulemaking.67 NPS believes it unlikely that either
unit will pursue rulemaking to open to PWC.68
Meanwhile, on May 15, 2008, a coalition of environmental groups filed a lawsuit in the U.S.
District Court for the District of Columbia seeking reinstatement of PWC bans at two units: Gulf
Islands National Seashore and Pictured Rocks National Lakeshore. 69 In a memorandum opinion
issued July 8, 2010, federal judge Gladys Kessler ruled that NPS failed to fully consider PWC
impacts on both wildlife and visitor experiences at these park units. The judge ordered NPS to reevaluate environmental assessments justifying PWC use, but she did not vacate or overturn the
current rules allowing them. 70
Legislative Activity
No general legislation affecting PWC use had been introduced in the 111th Congress as of
September 20, 2010, nor did the 110th Congress introduce any PWC-focused bills. On July 8,
2009, the Senate Commerce, Science, and Transportation Committee approved an amendment to
S. 1194, the Coast Guard Authorization Act for FY2010 and FY2011. The amendment would
allow PWC the same access as other vessels to the Intracoastal Waterway between Biscayne Bay
National Park and the Florida Keys. The amendment also directs the Coast Guard to conduct an
environmental study within 150 days of enactment to ensure that the impact of PWC is not
disproportionate compared to that of vessels now allowed to travel the 17-mile stretch of the
Intracoastal Waterway crossing Biscayne Bay National Park. The amended bill was reported
(S.Rept. 111-95) on October 30, 2009, and placed on the Senate calendar.
Motorized Recreation on BLM Land
(by Carol Hardy Vincent)
Background
The proximity of BLM lands71 to many areas of population growth in the West has contributed to
an increase in recreation on some BLM lands. BLM lands are used for diverse forms of
recreation, including hunting, fishing, visiting cultural and natural sites, birdwatching, hiking,
67
Padre Island’s 2006 PWC environmental assessment evaluates three alternative courses of action and identifies the
no-action alternative continuing the PWC ban as preferred. See http://parkplanning.nps.gov/document.cfm?parkID=
86&projectId=12571&documentID=13889.
68
Phone conversation with Philip A. Selleck, Regulations Program Manager, NPS, Jan. 28, 2009.
69
See http://www.nationalparkstraveler.com/files/Jet%20Ski%20Lawsuit.pdf for a copy of the complaint, and
http://www.npca.org/media_center/pdf/jetski_letter.pdf for a copy of the notice of intent to sue letter.
70
See http://nationalparkstraveler.com/files/NPS-Jet%20Ski%20ruling_0.pdf for a copy of the Memorandum Opinion.
71
BLM lands were designated as the National System of Public Lands by a Secretarial Order dated
December 16, 2008.
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picnicking, camping, boating, mountain biking, and off-highway vehicle driving. The growing
and diverse nature of recreation on BLM lands has increased the challenge of managing different
types of recreation, such as low impact (e.g., hiking) and high impact (e.g., OHV) uses. It also has
increased the challenge of managing recreation and other land uses. For instance, in some areas
recreation and energy development have come in conflict, with hunters, fishermen, outfitters and
guides, and other recreationists at odds with energy producing interests seeking to maintain or
increase energy development on public lands. Overall, access to BLM lands for a variety of
recreational purposes is viewed as important for fostering public health, public support for land
management, and a stable economic base for communities that depend on recreation and tourism.
Recreational access also has enhanced interest in protecting the ecological integrity of federal
lands from environmental harm as a result of recreational use.
Motorized OHV use, including use of dirt bikes and all-terrain vehicles, is a major recreational
use of BLM lands that has been controversial. Controversy exists in various areas throughout the
West, such as the San Rafael Swell in Southern Utah, the Imperial Sand Dunes Recreation Area in
Southern California, and the Arizona Strip in Northern Arizona. While motorized user groups
often have opposed restrictions on OHV use, many environmentalists have been concerned about
harm to natural and cultural resources. In some areas, OHV use may conflict with other types of
recreation, such as hiking, that seek quiet and solitude on agency lands. There are also differing
views on how effectively OHV authorities are being enforced. While BLM employs a variety of
means of enforcement, including monitoring, law enforcement, signing and mapping, and
emergency closures of routes, enforcement may be impeded in some locations due to their
remoteness, insufficient signs, inadequate staff and resources, and other factors.
Administrative Actions
Guidance on OHV use on BLM lands is provided in law, executive orders, and agency regulations
and policies. Under agency regulations (43 C.F.R. § 8340), BLM has been designating public
lands as open, limited, or closed to OHV use. As of September 30, 2009, the following
designations had been made: closed, where OHV use is prohibited, 12.8 million acres (6% of
designated area); limited, where OHV use is in some way restricted, 141.4 million acres (62%);
and open, where OHV use is permitted anywhere, 73.8 million acres (32%). The remaining 32.1
million acres of BLM land (mostly in Alaska) are not currently designated. Because BLM
management plans do not address motorized use in these undesignated areas, there are no
restrictions. Other regulations govern OHV use in particular areas. For instance, BLM has
supplementary rules for its lands in Oregon and Washington, which include guidance on OHV
use. On August 18, 2010, the agency issued revisions to these rules (effective September 17,
2010), in part to address OHV use in the Juniper Dunes OHV/ATV area in Washington.
BLM has issued national strategies dealing with transportation on its lands. For instance, the
National Management Strategy for Motorized Off-Highway Vehicle Use on Public Lands72 has
multiple purposes, including to guide land managers in resolving OHV issues; to promote
consistency of OHV decision-making; to highlight needed staff and funding for OHV
management; to reduce conflicts among land users; to promote responsible OHV use and reduce
habitat degradation; and to lead to an update of OHV regulations (which has not occurred to
date). Also, the National Mountain Bicycling Strategic Action Plan73 addresses mountain
72
73
The BLM Strategy and related documents are available at http://www.blm.gov/ohv/.
Available at http://www.blm.gov/mountain_biking/.
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bicycling and other muscle-powered mechanical transport. BLM is in the process of developing a
manual and a handbook on travel and transportation management that will cover planning and
management of all modes of travel and public access needs. They are intended to serve as a guide
for BLM field offices to improve travel planning, signing, mapping, and travel information. BLM
anticipates completing the documents in 2011.
BLM manages transportation on its lands through a process described as Comprehensive Travel
and Transportation Management.74 Goals include providing varied transportation routes for access
to BLM lands and providing areas for a variety of motorized and non-motorized forms of
recreation, while protecting sensitive areas. Travel and transportation management plans are
developed for particular areas. As of September 30, 2009, 117 BLM areas have completed travel
management plans. These plans average roughly a quarter million acres, and together cover about
27 million acres. BLM expects to complete a total of 554 plans covering 231 million acres, with
two-thirds of BLM lands having plans in place by 2020.75 Implementation of travel management
plans involves issuing maps; posting signs; educating land users; constructing, reconstructing,
and maintaining roads and trails; monitoring impacts; rehabilitating damaged areas; and enforcing
restrictions.
BLM makes OHV designations during the planning process, on an area-by-area basis, and such
designations often have been contentious and complex. 76 The agency is in the midst of a multiyear effort to develop and update land use plans, because many plans do not currently address
OHV use and other relatively recent issues. For instance, six of the eleven BLM field offices in
Utah have released resource management plans governing land uses in those areas.77 Together the
plans cover about 10 million acres in the eastern half of Utah. OHVs were a major issue
addressed during the process, as part of travel management planning for the areas. The plans
nearly eliminate areas open to cross-country OHV travel. Specifically, only 0.2% of the total
acreage is open to cross-country travel, according to BLM. Instead, the plans largely limit OHV
use to designated routes, although they close additional areas to OHV use. The plans also call for
the establishment of 31 new Special Recreation Management Areas, where the combination of a
high level of specific recreational activity and valuable natural resources would require more
intensive management.
In some cases, the BLM and FS jointly address OHV use on their lands. For instance, an
interagency plan governs OHV use on lands in Montana, North Dakota, and South Dakota. Also,
in central Oregon, one BLM district (Pineville) and two national forests (Deschutes and Ochoco)
jointly manage OHV operations on their lands. Joint management approaches, where federal
lands are intermingled, can promote consistency and public understanding of OHV guidance.
However, BLM and FS lands are different, and they are governed by separate authorities, making
complete consistency on vehicular travel management difficult to achieve.
74
Information on BLM’s travel management program is on the agency’s website at http://www.blm.gov/wo/st/en/prog/
Recreation/recreation_national/travel_management.html.
75
Information obtained by phone on September 17, 2010, from Rob Perrin, BLM Trails and Travel Management
Program Lead, Recreation and Visitor Services Division.
76
BLM revised its land use planning handbook in 2005 regarding motorized and non-motorized recreation. The
handbook is available at http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/
blm_handbooks.html.
77
Information on the plans, and the text of the plans, are available on the BLM website at http://www.blm.gov/ut/st/
en.html.
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BLM is reviewing its procedures related to issuing special use permits for OHV racing on its
lands. The review stems from a deadly accident in August 2010 in the Johnson Valley OHV open
area in Southern California, in which a truck driver is alleged to have exceeded the authorized
speed, veered off course, and killed and injured spectators. Agency actions include an
investigation of the accident, an examination of options to increase safety for spectators, a review
of all pending and approved requests to race on BLM lands, an evaluation of the special
recreation permit program, and an increase in the onsite presence of BLM staff at motorized
races. Through August 2010, BLM had issued more than 100 special recreation permits this year
to individuals or organizations for motorized racing on its lands. The permit holder is required to
submit an operating plan with safety measures for participants and spectators, and make every
reasonable effort to ensure compliance with all laws and other requirements. 78 Issues for Congress
include the adequacy of safety provisions in special use permits and their enforcement by BLM;
the extent of penalties for permittees who violate the terms of their permits; and the role of BLM
staff at racing events.
A 2007 report of the U.S. Geological Survey (USGS) contains a literature review on the effects of
OHV use on BLM lands. 79 The report covers OHV effects on soils and watersheds, vegetation,
wildlife and habitats, and water and air quality. It addresses the socioeconomic implications of
OHV use, mitigation and restoration, and monitoring and research needs.
Legislative Activity
For FY2010, the BLM appropriation for the recreation management program was $68.4 million, a
$4.7 million (7%) increase over the FY2009 appropriation of $63.7 million. For FY2011, the
Administration has requested $68.1 million, a slight decrease from FY2010. Through this
program BLM manages its wilderness areas and wilderness study areas, thousands of miles of
rivers and trails, 380 Special Recreation Management Areas, and more than 3,650 recreation sites,
including campgrounds, picnic areas, visitor centers, watchable wildlife sites, historic buildings,
and trailhead access points. A focus of the program has been developing and implementing travel
management plans, which identify and designate roads and trails for motorized use.
House and Senate companion bills (H.R. 3749 and S. 1770) seek to support, promote, and
enhance recreational fishing, hunting, and shooting on federal lands that are managed for
conservation of natural resources. They direct federal land officials to exercise their authority
under law to provide use of and access to federal lands for these activities, except where limited.
Agencies would be required to prepare annual reports on lands closed to fishing, hunting, or
shooting, including the reasons for the closures. With regard to BLM (and FS) lands in particular,
the bills affirm that they are to be open to these recreational activities, unless the agencies close
them.
No general legislation pertaining to OHV use on BLM lands had been introduced in the 111th
Congress as of September 15, 2010. However, pending measures would affect OHV use or other
recreation in particular areas. As one example, H.R. 192 contains provisions related to OHV use
78
See BLM News Release No. WO-2010, BLM to Conduct New Review of Permits Issued for OHV Races Held on
Public Lands, released August 20, 2010, on the BLM website at http://www.blm.gov/wo/st/en/info/newsroom/2010/
august/NR_08_20_2010.html.
79
The report is available on the USGS website at http://www.fort.usgs.gov/Products/Publications/pub_abstract.asp?
PubID=22021.
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in central Idaho. They include conveying BLM land to the State of Idaho to establish a motorized
recreation park and authorizing up to $1.0 million for the Secretary of Agriculture to grant to the
State of Idaho for the off-road motor vehicle program. As a second example, H.R. 765 would
transfer BLM land to Clark County, Nevada, to establish a centralized OHV recreation park. The
measure also would designate an area currently managed by the BLM as the Nellis Dunes as the
“Nellis Dunes National Off-Highway Vehicle Recreation Area” and authorize BLM to develop a
special management plan for the area. A third example, S. 2921—the California Desert Protection
Act of 2010—would govern conservation, development, and recreation in the California Desert
Conservation Area, including OHV use. In a fourth example, H.R. 5416 and S. 3185 provide for
conveyance of BLM land to the county of Elko, Nevada, for use as a motocross, OHV, and stock
car racing area or for other recreation or community purposes.
P.L. 111-11, the Omnibus Public Land Management Act of 2009, contained various recreationrelated provisions for particular BLM lands. They included provisions to establish new
designations on BLM lands and restrict/govern motorized use therein, establish areas that would
emphasize recreation, and require the development of travel/transportation management plans for
OHV recreation on certain BLM lands.
The 110th Congress also considered measures dealing with recreation on specific BLM lands, but
no general legislation governing BLM recreation was considered. Further, the 110th Congress held
hearings on OHV management on BLM and other federal lands. For instance, a March 13, 2008,
House subcommittee hearing and a June 5, 2008, Senate committee hearing covered many issues,
including agency efforts to develop travel management plans, resources for OHV management,
effects of OHV use, access for OHV use, and revenues to states from OHV use. Other issues
included the adequacy of OHV authorities, enforcement of these authorities, whether there should
be more standardization among authorities, the role of public/private partnerships in enforcement,
and whether a licensing system would be beneficial.80 A March 27, 2007, hearing of the House
Natural Resources Committee focused on how to balance recreation, especially fishing and
hunting, with energy development on federal lands.81
A June 2009 GAO report on OHV use on agency lands included several recommendations to the
agencies for providing OHV opportunities while protecting resources.82 BLM developed a
summary of planned actions in response to the GAO recommendations. 83 For instance, in
response to the GAO recommendation for the establishment of performance measures and time
frames for carrying out OHV goals, BLM stated an intent (1) to update and develop goals and
strategies that are results-driven during the revision of its recreation strategic plan, and (2) to
develop a travel management action plan with an implementation schedule to guide and
accelerate the completion of all travel management plans. In response to these recommendations,
on July 27, 2010, BLM issued an instruction memorandum to all state directors with travel and
80
Testimony from these hearings is available on the websites of the House Committee on Natural Resources and the
Senate Committee on Energy and Natural Resources at, respectively, http://resourcescommittee.house.gov/index.php?
option=com_jcalpro&Itemid=27&extmode=view&extid=151 and http://energy.senate.gov/public/index.cfm?
FuseAction=HearingsHearing&Hearing_ID=ca2e6111-befb-b64a-8a55-3945b88b484e.
81
The House Committee on Natural Resources provides testimony via the Internet at
http://resourcescommittee.house.gov/index.php?option=com_jcalpro&Itemid=32&extmode=view&extid=25.
82
The report is on the GAO website at http://www.gao.gov/new.items/d09509.pdf. Recommendations for executive
action are on pages 42-43 of the report.
83
U.S. Dept. of the Interior, Office of the Secretary, unpublished correspondence to Members of Congress, October 27,
2009.
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transportation performance measures and an action plan.84 In response to the GAO
recommendation to improve communication with the public about OHV use, BLM outlined the
development of a Travel and Transportation Management manual and handbook, as discussed
above. In response to the GAO recommendation to enhance law enforcement of OHV use, BLM
expressed an intent to examine fines for OHV related violations and to seek changes where fines
are inconsistent or insufficient.
Motorized Recreation in the National Forests
(by Ross W. Gorte)
Background
The national forests are managed by the USDA Forest Service (FS) for a variety of uses,
including many types of recreation—sightseeing, OHV use, backpacking, etc.—while preserving
the productivity of the lands. Recreation use continues to grow, with OHV use among the fastest
growing uses. 85 However, OHV use is still substantially less than other, non-motorized forms of
recreation in the national forests.86
The various uses and values of the national forests sometimes conflict with one another. For
example, timber harvesting and OHV use can affect birdwatching and sightseeing, and can
degrade water quality in certain settings. Decisions about what uses are allowed, and when and
where, are made in comprehensive land and resource management plans prepared for each unit of
the National Forest System, and for each project. Because of multiple efforts to modify the
planning regulations, many plan revisions have been delayed. Much of the attention has been
focused on motorized recreation, because of the potentially significant impacts of motorized
recreation on other values. Another issue involves conflicts between recreation uses (notably
hunting and fishing) and other activities, such as energy extraction.
Administrative Actions
Federal guidance on OHV use in E.O. 11644 and E.O. 11989, as described in the introduction to
this report, was incorporated into FS regulations, at 36 C.F.R. Part 295. Despite this guidance, not
all forest plans have identified areas as open or closed to OHVs, and local practices as to OHV
use vary. In 2004, the FS Chief identified unmanaged recreation—”increasing use of the national
forests for outdoor activities ... , including the use of off-highway vehicles”—as a threat to the
nation’s forests and grasslands. In particular, OHV use has created many unauthorized roads and
trails, which can be unsafe and harmful to other resources, according to the FS. The FS finalized
regulations to require forest plans to identify a system of roads, trails, and areas for motorized
vehicle use and prohibit the use of OHVs and other motorized vehicles outside the designated
84
See IM2010-167, issued July 27, 2010, available on the BLM website at http://www.blm.gov/wo/st/en/info/
regulations/Instruction_Memos_and_Bulletins/national_instruction/2010/IM_2010-167.html.
85
H. Ken Cordell, Carter J. Betz, Gary T. Green, and Becky Stevens, Off-Highway Vehicle Recreation in the United
States, Regions and States (Athens, GA: FS Southern Research Station, Feb. 2008), at http://www.fs.fed.us/recreation/
programs/ohv/IrisRec1rpt.pdf.
86
John C. Adams and Stephen F. McCool, “Finite Recreation Opportunities: The Forest Service, the Bureau of Land
Management, and Off-Road Vehicle Management,” Natural Resources Journal, vol. 49 (Winter 2009), pp. 45-116.
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system. 87 As of July 2008, 100 million acres of the 194 million acres of national forest lands
(52%) were generally open to OHV use, including 64 million acres open to cross-country use;
vehicles were restricted to existing or designated routes on the other 94 million acres (48%).88 By
the end of FY2008, motor vehicle use maps based on the new regulations were completed for
36% of FS lands, with another 43% scheduled to be completed by the end of FY2009 and the
remaining 21% scheduled to be completed in FY2010.89
Opinions are divided over the importance and impact of the regulations. Some assert that the
regulations do not go far enough, preferring that all OHV uses be prohibited in the national
forests, because OHVs can and do damage national forest lands and resources. Others counter
that the regulations penalize the majority of OHV users that obey the current rules and restrict
off-highway uses at a time when other landowners and other federal and state agencies are
reducing similar recreational access to their lands. The conflict between interests may be
escalating, in part because of the lack of past efforts to regulate OHV use.90
Conflicts also have arisen between hunting, fishing, and other types of recreation and energy
development on federal lands. For instance, environmental and wildlife and fish groups have
challenged various efforts to lease federal areas for oil and gas exploration and development.91
Concerns typically focus on the impacts of oil and gas development on wildlife-related recreation,
and the difficulties for interests other than the energy industry to provide input regarding the
location, timing, and stipulations for development. The Energy Policy Act of 2005 (P.L. 109-58)
expanded the opportunities for energy development on federal lands, which could increase
potential conflicts. The Government Accountability Office (GAO) has noted that the public has
opportunities to comment on and to challenge leasing decisions, but that the agencies do not
maintain data to assess the impact of these challenges.92
Legislative Activity
For FY2010, Congress provided $285.1 million for Recreation, Heritage, and Wilderness
management within the National Forest System, a $7.5 million (3%) increase from FY2009. The
Administration has requested $293.2 million for FY2011, an $8.1 million (3%) increase from
FY2010, for this program. For Trails (construction and maintenance), Congress provided $85.4
million for FY2010, $4.4 million (5%) more than for FY2009. For FY2011, the Administration
has requested $83.1 million, a decline of $2.3 million (3%) from FY2010.
87
U.S. Dept. of Agriculture, Forest Service, “Travel Management; Designated Routes and Areas for Motor Vehicle
Use,” 70 Fed. Reg. 68264-68291 (Nov. 9, 2005). For additional information, see also the FS Travel Management &
Off-Highway Vehicle (OHV) Program at http://www.fs.fed.us/recreation/programs/ohv/index.shtml.
88
See http://www.fs.fed.us/recreation/programs/ohv/Summary2008.pdf.
89
Ibid.
90
Adams and McCool, “Finite Recreation Opportunities.”
91
See, for example, Sportsmen for Responsible Energy Development, Recommendations for Responsible Oil and Gas
Development (released July 21, 2008), available at http://www.sportsmen4responsibleenergy.org/images/stories/
S4RED_Recommendations_Final-3.pdf; and Natural Resources Defense Council, Broad Coalition Sends Message to
BLM: Do Oil & Gas Right, at http://www.nrdc.org/media/pressreleases/040204.asp.
92
U.S. Government Accountability Office, Oil and Gas Development: Challenges to Agency Decisions and
Opportunities for BLM to Standardize Data Collection, GAO-05-124 (Washington, DC: Nov. 2004).
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In the 111th Congress, the Omnibus Public Land Management Act of 2009 (P.L. 111-11) contained
several provisions addressing recreation in specific FS areas. These provisions primarily were
contained in Title I of the law, entitled “Additions to the National Wilderness Preservation
System.” Additional bills have been introduced concerning recreation in specific FS areas, such
as H.R. 192 (the Central Idaho National Forest and Public Land Management Act) and S. 1470
(the Forest Jobs and Recreation Act of 2009). Further, House and Senate companion bills—H.R.
3749 and S. 1170—seek to support, promote, and enhance recreational fishing, hunting, and
shooting on federal lands, as discussed above under “Motorized Recreation on BLM Land.”
No general legislation on OHV activities in the national forests was introduced in the 110th
Congress, although various bills addressed recreation in specific areas. Most such area-specific
provisions were included in bills that would designate wilderness areas. The 110th Congress
examined OHV use on national forests and other federal lands. On March 13, 2008, a House
Natural Resources subcommittee held a hearing on the impacts of unmanaged OHV use on
federal lands. On June 5, 2008, the Senate Energy and Natural Resources Committee held an
oversight hearing on OHV management by federal land management agencies. Both hearings
covered a range of issues, such as agency planning and management practices and authorities for
controlling OHV use and the environmental and economic impacts of OHV use.
Author Contact Information
Kori Calvert
Information Research Specialist
kcalvert@crs.loc.gov, 7-6459
Ross W. Gorte
Specialist in Natural Resources Policy
rgorte@crs.loc.gov, 7-7266
Carol Hardy Vincent
Specialist in Natural Resources Policy
chvincent@crs.loc.gov, 7-8651
Congressional Research Service
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.