October 9, 2019

The Honorable Rob Wallace
Assistant Secretary of Fish, Wildlife and Parks Department of the Interior
1849 C Street, N.W. Washington DC 20240

Dear Assistant Secretary Wallace,

On behalf of the National Parks Conservation Association, Southern Utah Wilderness Alliance, The Wilderness Society, Sierra Club, Natural Resources Defense Council, Grand Canyon Trust, and Coalition to Protect America’s National Parks and our millions of members nationwide, we write to express grave concerns with the National Park Service’s (NPS) proposal to allow off- road vehicles to travel park roads in Utah. Allowing these vehicles in national park system units would upend well-established management policies and practices, violate NPS’s duty to conserve and protect park resources, irreparably impair sensitive park resources and values, and significantly alter the public use of these remarkable areas. As explained below, any decision to unilaterally sanction this kind of activity violates the Park Service Organic Act and its amendments, as well as NPS’s own regulations, Management Policies and Director’s Orders.

Further, making such a change by fiat, without considering, analyzing and disclosing the environmental impacts of this new use, would also violate the National Environmental Policy Act (NEPA) and the regulations and policies implementing it.

The Park Service Organic Act and Its Amendments Restrict Activities that will Impair Park and Monument Resources

Congress established the National Park Service to protect this nation’s most extraordinary natural places. The 1916 Park Service Organic Act broadly requires that NPS “conserve the scenery, natural and historic objects, and wild life in the System units.” 54 U.S.C. § 100101(a). In addition to this conservation mandate, NPS must “provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”  Id.  Congress reaffirmed these conservation and non-impairment mandates in 1978, declaring that “[t]he authorization of activities shall be construed and the protection, management, and administration of the System units shall be conducted in light of the high public value and integrity of the System and shall not be exercised in derogation of the values and purposes for which the System units have been established.” Id. § 100101(b)(2). “There can be no doubt,” courts have noted, “that the overriding aim of the Organic Act, as well as the purpose of NPS’ oversight and management of the park system, is to conserve the natural wonders of our nation’s parks for future generations.” Bluewater Network v. Salazar, 721 F. Supp. 2d 7, 21 (D.D.C. 2010).

In furtherance of the Organic Act, NPS’s Management Policies direct that national parks and monuments “must be managed in a special way—a way that allows them to be enjoyed not just by those who are here today, but also by generations that follow.” Preamble, NPS Mgmt. Policies (2006). And “[e]njoyment by present and future generations can be assured only if these special places are passed on to them in an unimpaired condition.” Id. Section 1.5, which addresses appropriate uses of parks and monuments, recognizes that “[n]ot all uses are appropriate or allowable in units of the national park system.” Id. at 1.5. If new proposed uses, such as off-road vehicles on park roads, threaten park resources and values, “the protection of resources and values must be predominant.” Id.

Echoing NPS’s own policies, courts consistently recognize that the Organic Act prohibits the agency from allowing certain uses within its units. While NPS must provide for the “enjoyment” of parks and monuments, that authority is qualified and does not confer “blanket permission to have fun in the parks in any way the NPS sees fit.” Greater Yellowstone Coalition v. Kempthorne, 577 F. Supp. 2d 183, 193 (D.D.C. 2008). Rather, “the ‘enjoyment’ referenced in the Organic Act is not enjoyment for its own sake, or even enjoyment of the parks generally, but rather the enjoyment of ‘the scenery and natural and historic objects and the wild life’ in the parks in a manner that will allow future generations to enjoy them as well.” Id. (quoting 54 U.S.C. § 100101(a)). And “when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant.Bluewater Network, 721 F. Supp. 2d at 21 (quoting 2006 NPS Mgmt. Policies at 1.4.3) (emphasis in original).

Existing Off-Road Vehicle Closures Protect Park and Monument Resources

Off-road vehicles pose unique threats to Utah’s national park system units. These vehicles are, of course, designed primarily for off-road travel. As a consequence, allowing them on park roads creates an immediate risk that off-road vehicle users can and will stray from roadways and irreparably damage the resources—soils, vegetation, cultural sites, and wildlife habitat—that national parks and monuments in Utah were established by law to protect.

In addition, off-road vehicles threaten to diminish the experiences of park and monument visitors. These vehicles can travel roads—especially unpaved backcountry roads—at far greater speeds than passenger cars and trucks. And they produce more dust and noise,1 which degrades air quality, scenery, wildlife habitat, and soundscapes.

Each Superintendent’s Compendium2 in every national park and NPS-managed monument in Utah prohibits the use of off-road vehicles on its roads. These prohibitions are longstanding and uncontroversial. NPS regulations promulgated in 1987 provide that “traffic and the use of vehicles within a park area are governed by State law.” 36 C.F.R. § 4.2. At the time, Utah law prohibited the use of off-road vehicles on roads and highways, and that prohibition applied equally to park roads. This tracked with the NPS’ management regime at the time, which did not allow for off-road vehicle use in national park system units.

In 2008, the Utah legislature enacted S.B. 181 to allow off-road vehicles on certain state and county roads. The change did not automatically apply to park roads. While 36 C.F.R. § 4.2 generally adopts state law, it only applies to “nonconflicting vehicle and traffic laws.” 52 Fed. Reg. 10670, 10678 (April 2, 1987) (emphasis added); see also 36 C.F.R. § 1.4 (defining “[s]tate law” to mean applicable and nonconflicting laws). Allowing off-road vehicles in parks solely by operation of state law conflicts with other NPS regulations, including 36 C.F.R. § 1.5, which governs the lifting of existing use restrictions. And it conflicts with NPS’s statutory directives to conserve park resources and protect parks and resources to prevent impairment.

Indeed, park superintendents and monument managers have continued the status quo closures in the face of changes to state law. For instance, in a September 12, 2008 Memorandum (attached as Appendix C), the superintendent of the Southeast Utah Group acknowledged that the new state law could, through the operation of 36 C.F.R. § 4.2, “terminate the longstanding closure of park roads to [off-road vehicles] and introduce a new use into the parks and monuments.” Appendix C, at 1. Nonetheless, she recognized that “ATV, OHV and similar vehicle use on roads is a potential new use within NPS areas in Utah, and must be evaluated and determined to be appropriate prior to being allowed.” Id. at 1–2 (emphasis added).

She and other superintendents and managers uniformly continued existing off-road vehicle closures, and these closures remain valid and effective to this day. These closures are consistent with NPS’s obligations to conserve and protect park resources and to prevent impairment of the same. And they are consistent with the ability of superintendents to make enforceable management decisions using their compendia.

Before Allowing Off-road Vehicles on Park and Monument Roads, NPS Must Comply with 36 C.F.R. § 1.5

Any attempts to lift the current off-road vehicle closure on park roads must comply with the requirements of 36 C.F.R. § 1.5. Superintendents must justify terminating the closure, and make “a determination as to why the restriction is no longer necessary and a finding that the termination will not adversely impact park resources.” 36 C.F.R. § 1.5(c). And because such a change would “result in a significant alteration in the public use pattern of the park area, adversely affect the park’s natural, aesthetic, scenic or cultural values . . . [and be] of a highly controversial nature,” it must be done through a rulemaking with published notice and an opportunity for public input. Id. § 1.5(b). In the meantime, the current closures must remain in effect.

NPS cannot simply direct its officials to dispense with these requirements. Just last month, the superintendent of the Southeast Utah Group reaffirmed the current off-road vehicle closures in those units. In her determination letter, she made clear that any change to the status quo would trigger § 1.5:

OHVs, ATVs, and similar vehicles have long been prohibited within the Southeast Utah Group parks and monuments by the adoption of state law (until 2008). Maintaining that prohibition by application of 36 C.F.R. 1.5 would not constitute an alteration of a public use pattern of the parks or monuments. Maintaining the current prohibitionwould not adversely affect park or monument resources. It would not be controversial, since it would not be a change and because the public clearly accepts the current restriction. On the other hand, terminating the prohibition would be controversial, would constitute an alteration of a public use pattern, and would adversely affect parkresources.

Appendix A, at 6.

NPS Must Also Comply with the National Environmental Policy Act

Before allowing off-road vehicles onto park and monument roads, NPS must also comply with NEPA and, at a minimum, conduct an Environmental Assessment (EA). NEPA requires all federal agencies to fully consider environmental impacts before taking an action. 42 U.S.C. § 4332(C); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 370–71 (1989). To do so, federal agencies must prepare a detailed environmental impact statement (EIS) for any “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §4332(C); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348–39 (1989). Major federal actions include those with “adverse effects that may be significant and which are potentially subject to federal control and responsibility.” 40 CFR § 1508.18 (emphasis added). If it is unclear whether an EIS is required (and the action is not subject to a categorical exclusion, or “CX”3), the agency should prepare an EA to evaluate potential environmental impacts. Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002) (citing 40 C.F.R. § 1501.4(b)). As part of the NEPA process, NPS must also provide an opportunity for meaningful public participation. See 40 CFR § 1500.1(b); WildEarth Guardians v. BLM, 870 F.3d 1222, 1237 (10th Cir. 2017). Cf. Director’s Order #12, §§ 1, 4.1, 4.3 (Conservation Planning, Environmental Impact Analysis, and Decision-Making) (2011).

Allowing off-road vehicles in Utah’s national parks and monuments for the very first time would unquestionably impact the quality of the human environment. As discussed above, off-road vehicles would create a host of adverse effects on and cause impairment to park resources, including damage to soils, vegetation, wildlife, scenery, and soundscapes. NPS must evaluate these potential effects through the NEPA process, and do so before terminating the existing off- road vehicle closures.

Conclusion

NPS’s plan to summarily end valid and longstanding off-road vehicle closures in its several national parks and monuments in Utah is legally indefensible. Doing so would violate NPS’ clear mandate to conserve and protect these special places. And doing so without full environmental analysis, without a public process, and against the experience and judgment of its own superintendents would be arbitrary, capricious and contrary to law. The current closures must remain in effect unless and until NPS and park superintendents comply with 36 C.F.R. § 1.5 and NEPA, and ensure that allowing off-road vehicles on park and monument roads for the first time will not impair these remarkable places.

We would like to arrange a time to speak with you as soon as you are available.

Sincerely,

Kristen Brengel
Senior Vice President, Government Affairs

cc: David Vela, Deputy Director, National Park Service
Kate Hammond, Acting Regional Director


1. NPS regulations prohibit the operation of motor vehicles that generate sixty decibels of noise at a distance of fifty feet. 36 C.F.R. § 2.12(a).  Off-road vehicle typically produce ninety decibels of noise at that distance, a volume that, in addition to degrading visitor experiences, would violate this regulation. See Appendix A, at 4.

2. A Superintendent’s Compendium is the proper location for parks to publish legally-binding management decisions such as the current off-road vehicle closures:

The Superintendent’s Compendium has been described by NPS as a “local management guide authorized by” NPS regulations, 71 Fed. Reg. 17,780 (Apr. 7, 2006), and is considered to be “terminology the NPS uses to describe the authority provided to the Superintendent under [applicable NPS regulations]. It allows for local, park-specific regulations for a variety of issues and under certain criteria.” 68 Fed. Red. 69,360 (Dec. 12, 2003).

Bluewater Network, 721 F. Supp. 2d at 12 n.6. A list of every Utah park and monument off-road vehicle closure is attached as Appendix B.

3. A categorical exclusion “means a category or kind of action that has no significant individual or cumulative effect on the quality of the human environment.” 43 C.F.R. §46.205. For instance, NPS’s NEPA Handbook allows a CX for “minor changes in programs and regulations to visitor activities.” National Park Service NEPA Handbook 3.3.D.3 (2015). But NPS cannot use a CX to justify a decision to allow an entirely new use in its units—especially a use that will result in well-documented individual and cumulative effects.  See generally USGS, Environmental Effects of Off-Highway Vehicles on Bureau of Land Management Lands (2007) (available at https://pubs.usgs.gov/of/2007/1353/report.pdf).