It isn't a secret to any OHV or snowmobile enthusiast that their access and recreation is under attack by some very well-off folks somewhere. Foundation dollars available to anti-OHV efforts are estimated to approach one hundred million dollars.
In addition to high dollar lobbying and public relations, those foundation dollars buy a legal program that, more often than not, bears an odd resemblance to some version of a legal Angry Birds. It is rare that the ink will dry on any travel management decision before it's placed in front of a federal judge. And when funding is no limit, hey, they'll shoot at anything. When you shoot enough times, you're bound to hit something.
Where they managed to score a hit, 20-20 hindsight suggests it was in decisions where the BLM and USFS failed to adequately dot their procedural "i's" and cross the bureaucratic "t's." The greenies only need to score the occasionally or partial "win" to throw a wrench in the works for the agency and the rest of us, and then ask for our fiscally-strapped government to pay them for "attorney's fees."
A close look at the recent court decision striking down the 2009 Stanislaus National Forest travel management decision is illustrative. The Forest Service survived the usual fusillade of NEPA attacks the greenies fire at the courts, but ruled in the anti's favor on a technical flaw in how the Stanislaus applied what is known as the "minimization criteria."
Big Green $$$ - Take a look!
The Wilderness Society IRS Form 990
Defenders of Wildlife IRS Form 990
Center for Biological Diversity IRS Form 990
Southern Utah Wilderness Alliance IRS Form 990
Idaho Conservation League IRS Form 990
We need to make clear that this is not "subpart A" of the USFS Travel Rule directing a Forest to identify its minimum road system, which a few years ago seemed the latest green twist on the process.
The minimization criteria was first (vaguely) outlined in a 1972 Executive Order (1972 E.O.) signed by President Nixon. In the past, the agencies have used a variety of approaches when complying with the 1972 E.O. with little ado. It wasn't until 2011 that the greenies started having success challenging this in court.
The greenies are now gaining traction with the idea that the 1972 E.O. isn't the broad guidance everyone thought it was back in 1972, but instead requires some unspecified, but more detailed, process be followed in every motorized designation decision. This has the practical effect of moving the goal posts - after the game ended. So in a forest like the Stanislaus, we have just learned this week that the analysis completed in 2009 was inadequate, based largely on the reasoning of a 2011 court decision.
The greenies have prevailed up to this point only in federal district courts. Several appeals are pending before the 9th Circuit Court of Appeals; at least one of those cases will likely be heard sometime in 2013.
Stay tuned. We're proud that BRC's legal team and individual OHV groups have staved off a variety of attacks. Please continue your support of the BRC Legal Program so we can continue to stuff this anti-access tool back in the box and prevent development of the next one.