A Summary of Executive Orders and Legal Cases

On February 8, 1972, President Nixon issued Executive Order No. 11644, regulating off-road vehicle (ORV) use on public lands. 42 U.S.C.A. § 4321.

The President noted that, though often used for legitimate purposes, ORV use comes in "frequent conflict with wise land and resource management practices, environmental values, and other types of recreational activity."

President Carter amended Nixon’s E.O. in 1977 with Executive Order No. 11989, clarifying the purpose of the original directive. This purpose is "to establish policies and provide for procedures that will ensure that the use of off-road vehicles on public lands will be controlled so as to (1) protect the resources of those lands, (2) to promote the safety of all users of those lands, and (3) to minimize conflicts among the various users of those lands."

Respective agency heads (defined to include the Secretary of the Interior) were instructed to promulgate regulations through which the status of public lands in relation to ORV use could be determined. In addition to the goal of minimizing user conflict, the E.O.’s require that the designation of areas and trails follow these guidelines:

n Areas and Trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands; Shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats; Shall be located so as to minimize conflicts — taking into account noise and other factors;

n Shall be located in areas of the National Park System — only if respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values;

n The respective agency head shall ensure adequate opportunity for public participation in the promulgation of such regulations and in the designation of areas and trails under this section.

n E.O. No. 11989 strengthened the provisions of E.O. No. 11644 by directing land managers to close areas and trails to ORV use whenever "considerable adverse effects of the soil, vegetation, wildlife, wildlife habitat, or cultural or historical resources" is, or will be, caused by their use.

n Areas and trails are to remain closed until it is determined that the adverse effects have been eliminated and measures are in place to prevent future recurrence. President Carter’s addition also gave managers the option to adopt a closed-unless-open policy in their management areas.

Subsequent court rulings have served to clarify and emphasize some of the provisions of the Executive Orders.

Substantial Adverse Effects

Sierra Club v. Clark, 756 F.2d 686

(9th Cir. 1985)

While neither party contested the fact that Dove Springs Canyon, located in the California Desert Conservation Area, had been wiped out by ORV use, the court sided with the defendant, stating that damage was "substantially unnoticeable in the WSA as a whole." Damage to Dove Springs Canton therefore did not represent "significant adverse damage" which would necessitate closure. The court noted that the Sierra Club’s interpretation of the regulations would result in total prohibition of ORV use within the Desert Area, "because it is doubtful that any discrete area could withstand unrestricted ORV use without considerable adverse effects." In FLPMA, Congress had found ORV use, no matter how damaging, to be permitted "where appropriate." 43 U.S.C.A. § 1781(a)(4). Only by allowing ORV use to be evaluated within the context of the Desert Area as a whole could both mandates be met. "If there is to be a change it must come by way of Congressional reconsideration."

This decision weakens the provisions of E.O. 11989 by allowing such broad discretion to agencies when determining what constitutes "considerable adverse effects."

Minimization of Environmental Impacts

American Motorcycle Assoc. v. Watt, 543 F. supp. 789 (9th Cir. 1982)

In this case, the plaintiffs challenged the criteria contained in the California Desert Conservation Desert Plan for approval of ORV routes. The neutral, interrogative language of the Plan’s criteria did not explicitly require that an area be closed if certain conditions were satisfied. The Plan criteria would have further led to routes being approved if there were no finding of "considerable adverse impacts." The court found this standard to be qualitatively different from the minimization criteria mandated by BLM regulations, 43 C.F.R. § 8342.1, and in the Executive Order.

ORV routes and areas must be designated with an intent to minimize environmental impacts, not merely to avoid "considerable adverse impacts."

User Conflict

Northwest Motorcycle Assoc. v. USDA, 18 F.3d 1468 (9th Cir. 1994)

The Northwest Motorcycle Association brought suit over the Forest Service’s decision to close the North Entiat area of the Wenatchee National Forest to ORV use because of user conflict. The closure, the Association argued, was illegal because it was based upon comment from area hikers, not on the personal experience of any Forest Service personnel. Comments from hikers should not have been used as a criteria of the evaluation because they were made by "interested" persons. The court responded by stating that it could "envision no better way to determine the existence of actual past or likely future conflict between two user groups than to hear from members of those groups." This emphasizes the importance of written public comment to agency officials whenever conflict is observed pertaining to ORV use, whether it be with other users, wildlife, or the land.

Conclusion

Executive Order No. 11644, as amended by Executive Order No. 11989, clearly provides the strongest handle on the problem of ORV use on public lands. While the prevention of the destruction of natural areas and the preservation of biological diversity is the most important reason for removing ORVs from public lands, perhaps the best strategy for effecting their removal is to focus on human issues, particularly when documentation of widespread ecological effects is lacking. Conflicts between user groups, personal injuries, accident liabilities, and enforcement problems must be reported in writing to the responsible agency officials.

Chuck Cottrell, Wildlands Center for Preventing Roads