NPS Director’s Order #41- Where are We Now?

On May 31, 2013, National Park Service Director Jonathan Jarvis signed Order #41. The Order addressed the long-standing issue of climbing anchors and bolts within Wilderness Areas managed by the National Park Service. Specifically, the Order:

  • Recognized climbing as a legitimate and appropriate use of Wilderness, thus eliminating the fear of a blanket climbing ban.
  • Required climbing management to be included in the Wilderness Stewardship Plans or other activity-level plans.
  • Recognized “bolt-intensive face climbs” as incompatible with Wilderness
  • Determined that fixed anchors should be “rare” in Wilderness
  • Required authorization for all new bolts and anchors in Wilderness
  • Allowed authorization for the replacement of bolts and anchors in Wilderness
  • Allowed for the prohibition of anchors in Wilderness where “unacceptable impacts are occurring”

The complete Order is here: https://www.nps.gov/policy/DOrders/DO_41.pdf. Section 7.2 discusses climbing.

What this all means is that each National Park with climbing in Wilderness was ordered to adopt rules for climbing in to their management plans. Climbing in designated Wilderness within an area managed by the National Park Service may seem like a small definition, but it includes Joshua Tree, Red Rock National Recreation Area, Yosemite, and North Cascades just to name a few. So what have the parks done since this order, and how has it affected climbing? Here are a few examples of the effects of NPS Order 41.

Sequoia and Kings Canyon

Sequoia and Kings Canyon National Park, or SEKI, requires a special use permit as of 2015 for any new permanent anchor or replacement. The process involves a written permit application which requires approval from the Park Superintendent. There is no fee. The Park’s site is here: https://www.nps.gov/seki/planyourvisit/rockclimb.htm

North Cascades

North Cascades National Park has possibly the most stringent policy under Order 41. Shortly after the Order was written, the Park banned all permanent anchors and established that any existing anchors may be removed without public input or notice. This policy was blamed for the September 14, 2013 death of a climber who was using a loose, uncommon rappel route on Forbidden Peak after the bolted rappel route was removed by rangers. Rock and Ice questioned the Park’s role in the death here: http://www.rockandice.com/articles/tnb/death-on-forbidden-peak-was-the-nps-complicit

 

Yosemite

A climbers’ park if there ever was one, Yosemite is currently in the process of updating its Wilderness Stewardship Plan for the first time since Order 41 was signed. Ninety-five percent of the park is Wilderness including classic formations such as  El Capitan and Cathedral Peak. The release of the draft plan has been delayed, but will likely be out within the year. Until then the 1989 Wilderness Stewardship Plan will stay in place. Current regulations place no limits on anchor creation and replacement. You can monitor and get involved with Yosemite’s Wilderness Stewardship Plan as the process proceeds- https://www.nps.gov/yose/getinvolved/wsp.htm

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Recreation Not Red Tape Act

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Recreation on Public Lands

I’m a skeptic. I always have been, and that part of me especially comes out when I see Representative Rob Bishop’s (R-UT) name on a bill. You may remember that Bishop is at the forefront of the attempt to sell off public lands and rescind National Monuments. It’s only natural to cringe and dig a little deeper when I see his name attached to a bill. However, here, it seems that the Recreation Not Red Tape Act might just be the bi-partisan effort at promoting public land recreation that it claims to be. Whether or not it will be effective is something still to be seen.

What stage of the process is this bill in?

The Recreation Not Red Tape Act is a bi-partisan Senate/House Bill proposed by Rob Bishop (R-UT) and Ron Wyden (D-UT). The Senate Bill was introduced by Senator Wyden on July 26, 2017 and is currently with the Committee on Energy and Natural Resources. An identical bill was introduced by Representative Bishop on the same day and as of August 8, 2017 it is with the Subcommittee on Conservation and Forestry. These identical bills were submitted at the same time as a way to expedite the legislative process. This way both the House and the Senate can debate, amend, and vote on the bill at the same time. If the bills come out with minor differences they will be resolved in a joint conference. This process could take awhile.

What does the bill say?

The Recreation Not Red Tape Act aims to streamline guide and outfitter permitting, and encourage more lenient recreation guidelines. The bill begins with an introduction that recognizes that the 887 billion dollar United States outdoor industry is “important to the health and wellness of all people”, that outdoor recreation is an appropriate use of public land, and that recreation has a growing role on public land and water.  From here the bill is broken down in to four sections, or “Titles.”

TITLE 1-Modernizing Recreation Permitting

This section

  • Requires both the Forest Service and the BLM to adopt a uniform process for guide service permitting.
  • Encourages federal land managers to work with state agencies to provide a single sales point for recreation passes so that the public may purchase both at once.
  • Suggests that permits and passes should be available online “[t]o the maximum extent practicable, where feasible and efficient.”

TITLE 2- Accessing the Outdoors

This section

  • Encourages the Secretaries of Interior and Agriculture to work with the armed forces to inform veterans about outdoor activities.
  • Encourages the armed forces to permit active members leave to partake in outdoor recreation.
  • Encourages the hiring of veterans for federal land management positions.

TITLE 3- Making Recreation a Priority

  • Allows land managers to create plans to expand seasons for seasonal recreation in a sustainable manner.
  • Requires the Forest Service and BLM to evaluate land managers based on recreational and tourism goals and metrics.
  • Creates an account for land managers to place, generally 50-65% of the fees collected from ski areas for permits and leases.
    • This account will then be used on-site for Forest Service training and processing of lease, as well as education.
  • Creates a National Recreation Area System of current and new National Recreation Areas

TITLE 4- Maintenance of Public Land

  • Requires the development of an initiative to enhance and promote private-sector volunteer opportunities
    • The opportunities include projects that promote stewardship, support maintaining resources, increase awareness and advance education.
  • Requires the establishment of an inter-agency trail management plan to ensure that cross boundary trails are maintained and managed in a uniform manner.

What does this mean?

Honestly, most of this bill doesn’t mean much. There are a lot of squishy words like “may” and “encourage” and “discretion” in the bill. Most of the bill works to encourage recreation and streamline permitting and pass purchases. It involves some unique approaches and positive moves but not necessarily a lot of backbone. It will be interesting to see the changes if this bill makes it to law.

Full Text of the Bill: https://www.wyden.senate.gov/download/?id=3D6B9BD8-1033-4427-9B4D-B0AC6D18739B&download=1

EDIT: A closer reading of the bill revealed that the Ski Area account money is to be used for administrating applications of improvements such as lift upgrades. The money cannot be used for the upgrades themselves. I have removed all language suggesting otherwise.

Wilderness Study Areas: The New Fight for Mountain Bikes

The debate over mountain bikes in Wilderness has gone on for years. Recently, however, this battle has shifted to other land designations related to Wilderness. Two recent lawsuits may alter the mountain biking landscape in the coming years.

The Wilderness Act of 1964 gave Congress the power to designate Wilderness areas. Further laws set forth guidelines for creating Wilderness Study Areas (WSA) in furtherance of the Wilderness Act. This designation has recently become the topic of debate and litigation in Montana. The Montana Wilderness Study Act of 1977 listed certain areas, these areas are to be “administered…so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.” Essentially, the Montana Wilderness Study Act listed specific areas that might some day become Wilderness, directed the Secretary of Agriculture to review them, and directed that they be managed in a way to not harm their ability to become wilderness until Congress decides otherwise. These lands are effectively in limbo, they are not Wilderness but their characteristics that make them eligible to become Wilderness cannot be harmed.

In 2006, the Gallatin National Forest released their newest Travel Plan; the documents which guideline travel restrictions and access in the National Forest. The goal of the plan was to “balance travel and recreational uses with other management goals”  in the area south of Bozeman, Montana. The Forest Service re-configured travel management to limit mountain biking to specific areas. The Forest Service also noted that use had increased since the Montana Wilderness Study Act in 1977, but determined that the increase was not relevant to their determination. The result was a lawsuit by the Montana Wilderness Association.

In their lawsuit, the Montana Wilderness Association alleged that the plan allowed an illegal increase in motorized and mechanized activities, and failed to analyze wilderness character. Motorist groups intervened and argued against further trail closure. The court held that the Forest Service must maintain a WSA’s wilderness character for current users and not just preserve physical characteristics for possible future Wilderness designation. The 9th Circuit Court of Appeals confirmed this ruling. The physical result was that over 100 miles of mountain bike trails were closed in the Hyalite-Porcupine-Buffalo Horn Wilderness Study Area.

Now, citing to the previous case, the Bitterroot National Forest has banned mountain bike access in all WSAs under their control. This time, mountain bikers won’t just be watching from the sidelines. In what is considered the first lawsuit by a mountain bike group, The Bitterroot Backcountry Cyclists have joined local motorist groups to challenge the legality of the closure. Their lawsuit claims that the Forest Service has “enhanced” the wilderness character of the Sapphire WSA and Blue Joint WSA by closing access to areas traditionally open to motorized and mechanized use. The case was filed in December and is currently proceeding.

Not only is the mountain bike fight moving from Wilderness to WSAs but mountain bikes continue to be grouped with motorized users such as ATVs and snowmobiles when it comes to federal decision-making. Bitterroot Backcountry Cyclists chose to join motorized groups in their lawsuit for cost-savings. This continued combination of “mechanized” and “motorized” recreation will likely play a big role in the future with federal land management, especially Wilderness.

If you’re interested in the current fight visit http://www.savemontanatrails.com.

National Monument Review and What It Means for Outdoor Recreation Pt. 2- Outdoor Recreation and How to Comment

Part 1

There are over 100 National Monuments in the United States. These National Monuments offer a wide array of outdoor recreation opportunities and protect unique landscapes and ruins. Currently twenty-seven of these Monuments (twenty-two land and five marine) are under review. Commenting has opened today and over 2,000 comments have already been received by the Department of the Interior as of 1 p.m. MDT. Here is a brief look at two of the most controversial National Monuments under review and the opportunities they hold for outdoor recreation.

Grand Staircase-Escalante National Monument

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Grand Staircase-Escalante National Monument

Grand Staircase-Escalante has been controversial since it was first proclaimed a National Monument by President Bill Clinton on September 18, 1996. The Monument, located in southern Utah, is over 1.8 million acres in size, nearly 800,000 of which overlap with various fossil fuel basins containing oil, gas, or coal. The fossil fuel industry and the state of Utah have not been shy about their interest in these deposits. The Monument is a particular thorn-in-the-side to some due to the perceived slight which occurred when President Clinton signed the Monument into law in a ceremony held in Arizona, never stepping foot in Utah. This controversy, however, does not distract from the vast natural vistas and recreation opportunities in Grand Staircase. The Monument’s managing agency, Bureau of Land Management (BLM), lists the following as recreation opportunities among others:

  • Hiking & Backpacking
  • Camping
  • Climbing
  • River running
  • Mountain Biking

The Monument is also reputed to hold the most extensive network of slot canyons in Utah, a canyoneer’s dream. The National Monument has a unique management plan which allows for Off-Highway Vehicle (OHV) use in some sections, while keeping other parts of the Monument quiet and pristine for long-distance hikers. While mountain-biking is only allowed on “established roads” the Monument is filled with remote old mining roads for the two-wheel adventurer. The climbing may leave much to be desired for anything less than the most seasoned choss-hounding desert rat but retains a following nonetheless. Due to the large amount of fossil fuels overlapping this National Monument, a recision or reduction of acreage would potentially revert the area back to undesignated BLM land, known as “Public Land.” This land designation not only allows for mining and drilling, but those leases are being actively pushed by the current administration.

Bears Ears National Monument

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Valley of the Gods, Bears Ears National Monument

As the most recent, most controversial, and currently most talked about National Monument, Bears Ears needs little introduction. Located in southern Utah, Bears Ears covers over 1.3 million acres over red rock desert. Similar to Grand Staircase, the area overlaps significantly with fossil fuel basins containing coal, oil, or gas. Estimates put 90% of the National Monument as sitting on potential reserves. Bears Ears also contains over 100,000 archaeological sites and vast recreation opportunities. Bears Ears is an mecca for outdoor recreation and unique in that its Proclamation specifically mentions outdoor recreation as a resource to be protected in the National Monument. Climbers know the areas of Indian Creek, Valley of the Gods, Comb Ridge, and others as well. These areas draw thousands of rock climbers in the spring and fall each year to test themselves on unique desert tower features and endless splitter cracks. Bears Ears also encompasses portions of the San Juan River, a beautiful paddle through petroglyph covered canyons. Overall, Bears Ears offers a myriad of opportunity including unique combinations of outdoor sports as seen here. These opportunities have brought giants of the outdoor industry, specifically Patagonia, Inc., in to the fight. As with Grand Staircase, a revision in the boundaries or complete rescission of the National Monument could open large areas of pristine outdoor recreation to oil and gas exploration.

Public Commenting

COMMENT HERE

The time to act is now. Public commenting begins today. Comments specific to Bears Ears must be submitted by May 26, 2017. Comments specific to other National Monuments must be submitted by July 10, 2017. That means you only have two weeks to have your voice heard about Bears Ears and less than two months about the other National Monuments. The list of National Monuments under review can be found here: List of National Monuments. Whether you enjoy climbing in Bears Ears, paddling in the Upper Missouri River Breaks, or photographing wild flower blooms in Carrizo Plain, make sure your voice is heard.

How do I comment?

Option 1- click the “COMMENT HERE” link above and then click the blue “Comment Now” button on the right side of the page. The process is easy and painless.

Option 2- Go to http://www.regulations.gov and search “DOI-2017-002.” This will take you to the same spot as the linked page above.

Option 3- Write or type your comment and mail it to the following address:

U.S. Department of the Interior

1849 C Street NW

Washington, DC 20240

What do I say?

Whatever you feel!! Although I urge you to be courteous and polite, there are no limitations on what you may say. You may also view others’ comments through the regulations.gov page to get an idea of how people are structuring their letters. Some are long and impassioned, while others are as short as “please save our national monuments.” Not a creative type, or short on time? No worries, numerous organizations create form letters for you to send. Find an organization whose views align with yours, add your contact info, and click send. However, while form letters are still counted, individualized letters are counted individually and may be given more weight by the administration. Here are a few places with form letters or drafting advice:

Outdoor Alliance

Form Letter

Advice:

  • Emphasize that you are an outdoor recreationist and a stakeholder on public lands
  • If you feel connected to Bears Ears or another National Monument, explain what it means to you personally
  • Indicate your support for National Monuments and protected public lands in general
  • Respond to the concerns that there was not adequate public outreach
  • Affirm that you want to see Bears Ears, and other National Monuments, retain their protections

Southern Utah Wilderness Association

Submission Page

Advice Page

Modern Hiker

Advice and How-to

Access Fund

Advice

The Access Fund’s letter

 

National Monument Review and What It Means for Outdoor Recreation Pt. 1- The Antiquities Act and E.O. 13792

“The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”            Antiquities Act 54 U.S.C.A. § 320301(a)

On May 5th, the Department of the Interior announced a public comment period for specific National Monuments which are currently under review. Public comment periods are not required for National Monument designations, making this the first chance for a formal comment on the designations. This public comment period stems from Executive Order 13792, which requires Secretary of the Interior Ryan Zinke to review several National Monument designations and expansions from the last twenty years. The Order then instructs Secretary Zinke to provide a final report to the President with recommendations for actions. The scope of the review reflects the stated concern and instructs Secretary Zinke to consider whether each specific Monument complies with the purpose of the Act, are appropriately classified under the Act, and how their designation has affected land management, private land use, and local concerns. The full review requirements can be found in Further Reading at the bottom of this post.

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Upper Missouri River Breaks National Monument

“The President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Antiquities Act 54 U.S.C.A. § 320301(b)
The stated reason for the Order is that National Monuments have a large impact on federal lands and when created without sufficient public input may “also create barriers to achieving energy independence, restrict public access to and use of Federal lands, burden State, tribal, and local governments, and otherwise curtail economic growth.” The skeptical reader will no doubt notice that the concerns are book-ended by oil and gas drilling euphemisms “achieving energy independence” and “economic growth”. This is where the strongest conflict lays in this review process. A brief overview of National Monuments and the Antiquities Act can help explain why.

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Gold Butte National Monument

The Antiquities Act was signed in-to law by President Roosevelt in 1906 and was conceived as a comprehensive law intended to preserve ruins and other items of cultural significance on public lands. Additionally, the Act has been used to preserve natural landscapes since the designation of the Grand Canyon National Monument just two years after the signing of the Act. National Monuments are diverse designations ranging from the Statue of Liberty to Grand Staircase-Escalante. However, since the current review focuses on proclamations and expansions of at least 100,000 acres, we will limit this discussion to larger Monuments. The Monuments may be managed by the National Park Service, the Forest Service, Fish and Wildlife Service, or the Bureau of Land Management. The Antiquities Act is unique in that it allows the President to make designations, as opposed to Congress. The Act is also exempt from the National Environmental Policy Act, the foremost procedural environmental law. This allows the President to swiftly, and singularly, designate lands. But what protections does that designation offer?

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Bears Ears National Monument

The answer is that the protections each National Monument is granted differ. The goal is to protect the objects described in the Monument proclamation, whether the objects are historical or natural in character. Management provisions may be prescribed by the President in the proclamation, or later by agency management plans and policies. For example, the proclamation for Grand Staircase-Escalante National Monument explicitly allows for continued grazing, the proclamation for Giant Sequoia explicitly prohibits future timber harvesting, and the proclamation for Katahdin Woods and Waters allows for snowmobile use and hunting in certain areas. However, what all National Monuments have in common is increased preservation and management. Additionally, they almost all include this language:

All Federal lands and interests in lands within the boundaries described on the accompanying map are hereby appropriated and withdrawn from all forms of entry, location, selection, sale, or other disposition under the public land laws, from location, entry, and patent under the mining laws, and from disposition under all laws relating to mineral and geothermal leasing.

While it is hard to describe exactly what changes when land is designated a National Monument, it can be summarized as such:

  • All steps are made with the purpose of protecting the resources set forth in the proclamation
  • Continuation of pre-existing rights (leases already in effect may run their course)
  • Prohibition of future oil and gas leasing
  • Increased management planning and on-the-ground management
  • Increased visitation
  • Restrictions on motorized vehicle use and potentially other forms of recreation

The Antiquities Act provides certain protections to significant landscapes, monuments, and ruins with the stroke of the President’s pen. There is no Congressional review or formal public comment required. This process is perceived by many as too much power for the President to have, and this is not the first time the Antiquities Act has come under attack. Lawsuits have previously challenged the Antiquities Act as unconstitutional and failed. With the recent controversial declaration of Bears Ears and the fact that the review only reaches as far back as Grand Staircase-Escalante, this current battle seems to focus more on oil and gas development than congressional delegation. While the review process brings up important questions about local input and public involvement, it is being widely perceived by many in the environmental movement as a ploy to repeal some Monuments’ protections in order to open up more oil and gas development. However, oil and gas development is often closely tied to local interests and certain factions have not been shy about their feelings that outside interests have taken away potential economic development from their area. What effect this may have on outdoor recreation and what those who are concerned can do will be covered in “Pt. 2- Outdoor Recreation in the National Monuments” on Friday, May 12th. Stay tuned.

Further Reading

Executive Order 13972: https://www.gpo.gov/fdsys/pkg/FR-2017-05-01/pdf/2017-08908.pdf

Dept. of Interior Press Release: https://www.doi.gov/pressreleases/interior-department-releases-list-monuments-under-review-announces-first-ever-formal

National Monuments and Antiquity Act Summary: https://fas.org/sgp/crs/misc/R41330.pdf

Utah Association of Counties v. Bush (challenging the Grand Staircase-Escalante proclamation): https://www.courtlistener.com/opinion/2578208/utah-assn-of-counties-v-bush/

Mountain State Legal Foundation v. Bush (challenging several President Clinton’s proclamations): http://openjurist.org/306/f3d/1132/mountain-states-legal-foundation-v-w-bush

NPR Article on Bears Ears and the National Monument Review: http://www.npr.org/2017/05/05/526860725/with-national-monuments-under-review-bears-ears-is-focus-of-fierce-debate

Welcome to Silent Recreation

I am pleased to welcome you to the Silent Recreation Law Blog. This blog is intended to provide analysis on a wide topic of legal issues affecting outdoor recreation. Specifically, non-motorized outdoor recreation like climbing, kayaking, mountain-biking, and backcountry skiing. These issues will most likely be land-use related and often specific to the Northern Rockies. No matter your interest in the law or outdoor pursuit, I hope this blog can become an important resource for you.