Coalition signs on to Protect National Trails Logo

 

 April 15, 2021 

The Honorable Deb Haaland
Secretary of the Department of the Interior
1849 C Street, NW, MS 5311
Washington, DC 20240

 Re: Department of the Interior Oil and Gas Leasing Program Review Under Executive Order 14008

 Dear Madam Secretary:

 Thank you for the opportunity to submit comments related to the Department of the Interior (DOI) review of the federal oil and gas leasing program as called for by Executive Order 14008 (January 27, 2021). As recognized, there are many reasons for critical review of the DOI oil and gas leasing program, including: land and resource use and conservation, climate change, pollution, environmental justice, etc. These comments are specifically intended to address the existing oil and gas leasing program and process on national scenic trails and national historic trails established via federal congressional legislation, particularly on federal lands crossed by such trails and subject to mandated administration, management, and protective provisions of the National Trails System Act (NTSA), 16 U.S.C. §§ 1241 et seq. (1968). 

The Partnership for the National Trails System (PNTS), the Old Spanish Trail Association (OSTA), the Pacific Crest Trail Association, the Continental Divide Trail Coalition, Public Employees for Environmental Responsibility (PEER), and, the Coalition to Protect America’s National Parks, the Continental Divide Trail Coalition, and the Pacific Northwest Trail Association . . . collectively, provide the following comments. 

Specific to this letter and as later described, we recommend and ask for an immediate Secretarial moratorium for oil and gas leasing on federal lands within ten-mile-wide default national trail management corridors and also request the implementation of other measures to avoid incompatible activities that conflict with the nature and purpose of the National Trail System.

SCOPE OF THE ISSUE REGARDING NATIONAL TRAILS

Federal law related to oil and gas leasing on federal public lands is codified at 30 U.S.C. Chapters 3 & 3A. Said law provides discretionary authority to the federal government to offer, issue, and oversee oil and gas leases on federal public lands. 

The National Trails System Act, describes and governs a national trails system comprised of legislatively established national scenic trails (NSTs) and national historic trails (NHTs), and administratively established national recreation trails. The NTSA mandates various aspects of administration, management, and inter-governmental coordination related to the NSTs and NHTs. (Henceforth referred to as NSTs, NHTs, or NTs.)1The focus of the comments submitted in this document apply to the statutorily established NSTs and NHTs, and do not necessarily extend to management of administratively established national recreation trails.

The national trails system includes eleven NSTs, and nineteen NHTs. Of the eleven NSTs, six are mandated to be administered by the Secretary of the Interior (DOI) and five by the Secretary of Agriculture (DOA). Of the nineteen NHTs, eighteen are mandated to be administered by the Secretary of the Interior and one by the Secretary of Agriculture. The Secretaries have delegated administration of the NSTs and NHTs to agencies within their Departments. The United States Forest Service (USFS) administers all Department of Agriculture NTs. The Secretary of the Interior has delegated administration of twenty-one NTs to the National Park Service (NPS), two jointly to the NPS and Bureau of Land Management (BLM), and one to the BLM.2One of the two jointly administered NHTs is the Old Spanish NHT.

Many of the NTs, especially in the west, are potentially impacted by DOI oil and gas leasing proposals and projects.3All land management and land use activities on federal public lands, beyond DOI oil and gas leasing, have the potential to adversely impact the NTs, and the resources, values, and recreational opportunities afforded protection by the NTSA. Therefore, it is worthy of note that our comments regarding adequate process and protection for the NTs generally apply to all federal land management programs and actions, including mineral management and leasing of all kinds, common varieties sales, vegetation management projects, energy and energy transmission projects, transportation projects and allowances, etc. The following NTs cross BLM and USFS public lands in regions that have been regularly subject to DOI oil and gas leasing projects:

• Old Spanish National Historic Trail (OSNHT)
• Pacific Crest National Scenic Trail
• Mormon Pioneer National Historic Trail
• California National Historic Trail
• Oregon National Historic Trail
• Pony Express National Historic Trail
• Lewis and Clark National Historic Trail
• Continental Divide National Scenic Trail
• Nez Perce National Historic Trail
• Santa Fe National Historic Trail
• El Camino Real De Tierra Adentro National Historic Trail

As an example, the OSNHT crosses extensive expanses of public lands – some 1,168 linear miles, or 43.18% of the Trail’s total mileage in New Mexico, Colorado, Utah, Nevada, Arizona, and California.4See Old Spanish National Historic Trail Comprehensive Administrative Strategy, NPS & BLM (2017), p.10. If tribal trust lands managed in partnership by tribes and the Bureau of Indian Affairs are counted, the mileage of federal lands crossed by the OSNHT increases by an additional 359 miles to 1,527 miles, or 56.43% of total Trail mileage. In addition to the list above, other NTs which cross BLM and USFS public lands may be impacted as well. 

NTSA PROVISIONS AND REQUIREMENTS

Some of the important Departmental and delegated agency administrative responsibilities under the NTSA include: 

• development of overarching comprehensive plans for each NT – to be submitted to Congress within two fiscal years of the establishment of such NTs (see 16 U.S.C. §1244(e));5Comprehensive plans have been developed and submitted to Congress pursuant to §1244(e) for most NTs, with a few such plans still in the development and review stages. In each case, the comprehensive plans required by the NTSA, as major federal actions, were subject to National Environmental Policy Act (NEPA) compliance process. A notable exception is the Old Spanish National Historic Trail (OSNHT), established by Congress and law in 2002. In the case of the OSNHT, due to interagency conflict and disagreements between the delegated agency administrators – jointly, the NPS and BLM – a comprehensive plan has not been developed or submitted to Congress as required. Fifteen years after congressional establishment of the OSNHT, the NPS and BLM developed a Comprehensive Administrative Strategy (OSNHT CAS or CAS) (2017), without NEPA review, and without submission to Congress.
• counseling and advising federal managers and staff of federal lands crossed by NTs on planning, promotion, management, and protection of such lands and Trails;
• coordination of NTSA provisions with state, local, and tribal governments, and private landowners;
• coordination of Trail administration and management with volunteer NT organizations (see 16 U.S.C. §1241(c). 

Regardless of the existence of the NTSA required comprehensive plans, or direct trail administrator’s guidance or orders, federal land managers and staff must comply with the applicable provisions of the NTSA.

Generally, the purposes of NSTs and NHTs as outlined in the NTSA must be recognized, and govern land management actions, including oil and gas program actions. In the NTSA Congress generally stated that: 

In order to provide for the ever-increasing outdoor recreation needs of an expanding population and in order to promote the preservation of, public access to, travel within, and enjoyment and appreciation of the open-air, outdoor areas and historic resources of the Nation, trails should be established (i) primarily, near the urban areas of the Nation, and (ii) secondarily, within scenic areas and along historic travel routes of the Nation which are often more remotely located. 16 U.S.C. §1241(a) (emphasis added).

The general purpose of NSTs is described as follows:

National scenic trails, established as provided in section 5 of this Act, which will be extended trails so located as to provide for maximum outdoor recreation potential and for the conservation and enjoyment of the nationally significant scenic, historic, natural, or cultural qualities of the areas through which such trails may pass. 16 U.S.C. §1242(a)(2).

And, the general purpose of NHTs described as: 

National historic trails, established as provided in section 5 of this Act, which will be extended trails which follow as closely as possible and practicable the original trails or routes of travel of national historic significance. . . . National historic trails shall have as their purpose the identification and protection of the historic route and its historic remnants and artifacts for public use and enjoyment. Id. at (a)(3). 

In establishing NTs, Congress has looked to background information compiled by relevant federal agencies – most often some form of study, or feasibility study, but occasionally, especially in the case of NSTs, merely a set of maps, which describe NT routes, resources, values and recreational opportunities justifying their addition to the System. When Congress calls for such studies, the referenced “section 5” of the NTSA, requires the Secretary of DOI or DOA to include specific information for congressional review and reference in regard to each proposed NST or NHT prior to congressional consideration of enactment. In regard to NHTs, the requirements of such studies further describe the purposes of NHTs:

It must be a trail or route established by historic use and must be historically significant as a result of that use. The route need not currently exist as a discernible trail to qualify, but its location must be sufficiently known to permit evaluation of public recreation and historical interest potential. A designated trail should generally accurately follow the historic route, but may deviate somewhat on occasion of necessity to avoid difficult routing through subsequent development, or to provide some route variations offering a more pleasurable recreational experience.
. . .
It must have significant potential for public recreational use or historical interest based on historic interpretation and appreciation. The potential for such use is generally greater along roadless segments developed as historic trails and at historic sites associated with the trail. 16 U.S.C. §1244(b)(11). 

Therefore, the NTSA makes clear that NHTs are not just established for the value of historic/cultural sites and artifacts along their path, but also the value of outdoor recreational opportunities that offer the public the chance to experience landscapes reflective of the historic period and events related to each NHT. The establishment of an NHT by legislation following submission of an agency study, clearly demonstrates a finding by Congress that said NHT meets the “criteria” of historic significance evidenced in such studies.

The NTSA specifically mandates certain land management responsibilities and actions, and also limits permissible uses along NTs. 

Protection of federal land portions of NTs. In regard to NSTs, again, the NTSA states such Trails shall be “located as to provide for maximum outdoor recreation potential and for the conservation and enjoyment of the nationally significant scenic, historic, natural, or cultural qualities of the areas through which such trails may pass.” 16 U.S.C. §1242(a)(2). Conservation of the noted qualities is mandated. 

The NTSA defines “Federal protection components” of NHTs as follows: “those selected land and water based components of a historic trail which are on federally owned lands and which meet the national historic trail criteria established in this Act are included as Federal protection components of a national historic trail.” 16 U.S.C. §1242(a)(3). As previously stated, because the NTSA directs that only historic trails and routes meeting established criteria be congressionally established as NHTs (see 16 U.S.C. §1244(b)(11)), it is clear that all congressionally enabled NHTs meet such criteria, and portions on federal lands are “Federal protection components” of such NHTs.

National Trail right-of-ways and protected corridors. 

The NTSA directs that the applicable Secretary/Administrator: “Pursuant to section 5(a), . . . shall select the rights-of-way for national scenic and national historic trails and shall publish notice thereof of the availability of appropriate maps or descriptions in the Federal Register”, and that “[t]he location and width of such rights-of-way across Federal lands under the jurisdiction of another Federal agency shall be by agreement between the head of that agency and the appropriate Secretary.” 16 U.S.C. 1246(a)(2). The vehicle for establishing such rights-of-way is unspecified, but could have its genesis in a Trail’s pre-enactment study, its comprehensive plan, or land management unit plans. Generally, NT pre-enactment studies or feasibility studies presented to and acted upon by Congress in establishing NTs only describe or show NST or NHT routes, as a linear depiction. Therefore, the width of such proposed routes to be subject to provisions of the NTSA is generally unspecified at the time of statutory establishment. Nevertheless, it would make no sense whatsoever to establish, administer and manage a NT solely on the basis of a 1/10 cm. line on a pre-enactment study map. The resources and values of NTs could not be administered, managed, or protected on such an infinitesimally narrow designation. Consequently, the determination of the appropriate width of NTs for administration and management purposes is left to the development and inclusion in the aforementioned rights-of-way and comprehensive plans. Such administration, management, and protective right-of-ways are often also referred to as “Trail corridors”.6Reasons for the NTSA requiring submission of comprehensive plans to Congress, and public notice and review guarantees under NEPA is, in part, to provide opportunities for review and agreement on these critical management and protective corridors. In many instances, NT comprehensive plans continue to forego designating, or even recommending Trail corridor widths. In such instances Trail corridor widths for administration, management, and protective purposes on federal lands should be negotiated and determined by Trail Administrators and individual federal land managers in timely revised land management plans, or amendments to land management plans, both of which require NEPA review processes and opportunities for public involvement.

Allowable uses. 

The NTSA specifically addresses what uses and developments are allowed along Trail corridors of NTs on federal public lands. The Act directs the following: 

National scenic or national historic trails may contain campsites, shelters, and related-public-use facilities. Other uses along the trail, which will not substantially interfere with the nature and purposes of the trail, may be permitted by the Secretary charged with the administration of the trail. Reasonable efforts shall be made to provide sufficient access opportunities to such trails and, to the extent practicable, efforts shall be made to avoid activities incompatible with the purposes for which such trails were established. 16 U.S.C. §1246(c) (emphasis added). 

This is a statutory directive, not a grant of discretionary authority. Therefore, in almost every instance, oil and gas leasing, or similar proposed incompatible land use activities should not be allowed, as such would substantially interfere with the nature and purposes of NTs. It is certainly “practicable” to forego the issuance of discretionary oil and gas leases on federal lands within Trail management corridors. 

Limitation of motorized vehicle use in Trail corridors.

The use of motorized vehicles along all NTs is partially allowed, limited, or completely prohibited, based on provisions separately applicable to NSTs and NHTs. 

In regard to NSTs, with the exception of the Continental Divide National Scenic Trail, the NTSA states: “The use of motorized vehicles by the general public along any national scenic trail shall be prohibited . . . .” 16 U.S.C. §1246(c). 

In regard to NHTs, the limitation applies differently based on whether motor vehicle use preceded congressional enactment of a given NHT, or not. For some pre-existing motorized roads, streets, and highways along routes of NHTs, the NTSA specifically states: 

Where a national historic trail follows existing public roads, developed rights-of-way or waterways, and similar features of man’s nonhistorically related development, approximating the original location of a historic route, such segments may be marked to facilitate retracement of the historic route, and where a national historic trail parallels an existing public road, such road may be marked to commemorate the historic route. Id. 

However, the Act also states “Other uses along the historic trails and the Continental Divide National Scenic Trail, which will not substantially interfere with the nature and purposes of the trail, and which, at the time of designation, are allowed by administrative regulations, including the use of motorized vehicles, shall be permitted by the Secretary charged with administration of the trail.” Id. Therefore, the only permissible use of motorized vehicles on federal lands along NHTs must have: (1) pre-existed the enactment of the subject NHT; (2) been administratively authorized; and (3) not interfere with the nature and purposes of the Trail. Any federal “administrative” allowance of should certainly be analyzed and documented in federal agency land use management plans and specific plans such as BLM’s travel management plans. 

Oil and gas exploration and development activities routinely involve the use of motorized vehicles, normally conflict with and substantially interfere with the nature and purposes of NHTs, and should, therefore, be prohibited from all NT corridors. 

AGENCY POLICY DIRECTIVES AND REQUIREMENTS
RELATED TO NATIONAL TRAILS 

In addition to the protective provisions of the NTSA, some formal federal agency policies – most notably BLM policies – direct agency land managers on proper Trail management and protection on federal lands under their jurisdiction.

BLM policies contained in Policy Manual 6280 – Management of National Scenic and Historic Trails and Trails Under Study or Recommended as Suitable for Congressional Designation (Public) (2012) cover a comprehensive array of federal land management responsibilities as related to NTs. Unfortunately, the vast majority of these policies remain unfulfilled by the BLM.

National Trails Inventory Process

Manual 6280 directs BLM land managers to conduct comprehensive inventories of NT natural and cultural resources, values and qualities including landscape settings, recreational opportunities, and existing compatible and incompatible uses on all BLM lands crossed by designated Trails. Generally, the policy states:

The affected BLM Field Offices, upon designation of a National Trail by Congress, conducts and assesses a field inventory of the National Trail resources, qualities, values, and associated settings and the primary use or uses of the trail for the public land areas through which such trails may pass. This chapter outlines inventory by individual landscape element, including scenic, historic, cultural, recreation, natural, and other landscape elements, and the assessment of that inventory for National Trail purposes. Manual 6280, p.3-1.

Inventory data is to be utilized in establishment of Trail management corridors, in land management action assessments, and in development, amendment, or revision of land management plans. More specifically, the chapter regarding purposes of Trail inventories, states:

B. Use the inventory to make informed decisions regarding proposed uses within National Trail areas, to identify opportunities to safeguard the nature and purposes of National Trails, and to allocate the resources, qualities, values, and associated settings and the primary use or uses of the trail during land use planning (NTSA and FLPMA).
C. Use the inventory to establish a National Trail Management Corridor through the land use planning process.
D. Conduct inventory within the National Trail viewshed to identify the area of potential adverse impact for proposed actions, until such time as a National Trail Management Corridor is established.
E. Recommend to the National Trail administering agency for inclusion in the trailwide Comprehensive Plan, data regarding Federal Protection Components (land and water based components of a historic trail), including high potential historic sites and high potential route segments, identified or discovered through the inventory process.7BLM managers and staff have often confused what constitutes “Federal Protection Components” of NHTs. An alarming majority of BLM management statements regarding such “Federal Protection Components” as related to NHTs limit the coverage of such protection to “high potential historic sites and high potential route segments.” These terms are defined at the end of the NTSA (see 16 U.S.C. §1251), but are not related to the Act’s specific language or definition of “Federal protection components” (see previous discussion regarding statutory definition). Despite BLM management statements, even Manual 6280 makes clear that such “high potential historic sites and high potential route segments” constitute only a portion of “Federal Protection Components” in numerous instances in policy language qualifying this overarching class as “including high potential historic sites and high potential route segments,” not exclusively comprised of these sites and segments. (emphasis added). As previously discussed, “Federal Protection Components” of NHTs includes all NHT segments on federal lands. Id.

BLM Land Use Planning 

BLM Manual 6280 directs BLM managers to incorporate requirements of the NTSA and Trail inventory data into pertinent sections of statewide, district, or field office land use plans in timely fashion. The Manual generally states: 

This chapter outlines BLM land use planning requirements for congressionally designated National Trails and the National Trail Management Corridor. Through the land use planning process, where a designated trail is within the planning area, the BLM establishes National Trail Management Corridor, and will set forth allocation decisions, management actions, and necessary restrictions for resources and resource uses within that National Trail Management Corridor in order to effectively manage the nature and purposes of National Trail and the resources, qualities, values, and associated settings and the primary use or uses. Manual 6280, p. 4-1 

More specifically, in regard to land use planning, the BLM Manual states:

4.1 General Requirements

A. Addressing Designated National Trails through Land Use Planning

1. As soon as practical after activation, the BLM must address designated National Trails through the land use planning process.

2. Designated National Trails may be addressed through a land use plan amendment, or a Statewide Trail Management Plan or a programmatic multi-state effort which amends applicable Resource Management Plans.

3. Regardless of the type of land use planning process undertaken, the BLM shall establish a National Trail Management Corridor(s) and identify management goals, objectives, and actions for each designated National Trail.

4. National Trails shall be clearly identified as a specific resource or discipline, in its own unique section throughout the various chapters of the Resource Management Plan – not contained within and across multiple disciplines.

5. Resource Management Plan decisions should be compatible across BLM jurisdictions, as applicable, to provide for trailwide management consistency. Id. (emphasis added).

BLM land management plans or amendments including NT considerations are few and far between, either on a field office, district office, or statewide level. BLM regulations certainly imply if not direct that land management plans shall be revised or amended “based on monitoring and evaluation findings . . ., new data, new or revised policy and changes in circumstances affecting the entire plan or major portions of the plan” See 43 C.F.R. §§1610.5-5 – 1610.5-6. Nevertheless, few if any BLM land use plans have been amended or revised to incorporate NT considerations or management despite the statutory changes to circumstances that are inherent in NT establishment. This unduly and unjustifiably prevents BLM managers from properly managing NTs or other BLM actions, such as oil and gas leasing, in Trail management corridors in accordance with its policy, and the statutory law. 

BLM Land Management Actions 

Chapter 5 of Policy Manual 6280 instructs BLM managers on other land management actions, including oil and gas leasing, related to NT lands stating: “This chapter outlines BLM guidance for the management of National Trails, including activation; protocol for proposed actions within designated National Trails areas; implementation-level planning for designated National Trails; and National Trail stewardship program responsibilities.” Id. at p. 5-1 (emphasis added). Significantly, this chapter dictates that land management actions are subject to law and the policy manual provisions even prior to updating land management plans:

C. As soon as practical after activation, the BLM shall establish a National Trail Management Corridor through the land use planning process (see chapters 3 and 4 of this manual). Until such time that the National Trail is addressed in a Resource Management Plan, the trail shall be managed, as appropriate, in accordance with the designating legislation and according to the policy, procedures, and protocols outlined in this manual. Id. at p. 5-1, §5.2(C)(emphasis added).

And, critically, Manual 6280 sets forth precise and detailed processes for evaluation of any proposed action “which may adversely impact designated national trails.” See id. at p. 5-2 et. seq., §5.3. These provisions apply to all oil and gas leasing program actions, and similar actions. They must be adhered to; but, have not been.

RECENT EXAMPLES OF BLM OIL AND GAS LEASING ACTIONS
AND FAILURE TO ADDRESS IMPACTS ON NATIONAL TRAILS

Over the course of preceding years, a number of DOI/BLM oil and gas leasing actions have taken place overlapping or arguably within NT corridors. One or more of the participant organizations in this letter have submitted comments on such actions, and subsequently protested such actions in certain instances. Due to the location of such BLM actions and the determined attention of the Old Spanish Trail Association, many comments and protests have focused on and were related to the OSNHT. However, other NTs have undoubtedly been affected in the same way in many other cases. In addition, national trail associations have commented on BLM and other federal agency actions presenting similar issues to oil and gas leasing actions. Although as mentioned there have been many communications on BLM proposed actions, the two most instructive matters, and submitted comments and protests related to those matters are the following:

• BLM, Utah State Office – September 2020 Competitive Oil and Gas Lease Sale, DOI-BLM-UT-0000-2020-0004-EA

o Consolidated/Coalition EA Comments (July 9, 2020) (attached)
o Consolidated/Coalition EA Protest (August 21, 2020) (attached)

• BLM, Utah State Office – December 2020 Competitive Oil and Gas Lease Sale DOI-BLM-UT-0000-2020-0005-EA

o J. Hiscock/PEER EA Comments (September 4, 2020) (attached)
o OSTA EA Comments (September 4, 2020) (attached)
o J. Hiscock/PEER Protest (November 2, 2020) (attached)
o OSTA Protest (November 2, 2020) (attached) 

The referenced comments and protest on both BLM oil and gas lease sale EAs include issues related to the proper and complete management of the OSNHT in accordance with law and policy, but also important additional issues related to the BLM action. The BLM response to these comments and protests has been insufficient. All these attachments are worthy of review in their entirety. 

The following highlights demonstrate the BLM’s failure to conduct its oil and gas leasing process and actions in accordance with the NTSA and BLM Policy Manual 6280 in each of the aforementioned instances. These shortcomings are commonplace to many more BLM oil and gas leasing and other actions over the years. 

– The BLM National Environmental Policy Act (NEPA) documents fail to acknowledge the OSNHT as a special, legislatively established area, as part of the National Trails System, and as part of the National Landscape Conservation System. 

– There is no indication that BLM properly inventoried natural and cultural resources, Trail values and qualities including Trail landscape settings, or recreational opportunities along the OSNHT, in accordance with Manual 6280.

– There is no indication that BLM analytically used the aforementioned inventory data to propose and establish a justifiable Trail Management Corridor in accordance with Manual 6280, and to protect such Trail Management Corridor. In its final DOI-BLM-UT-0000-2020-0004-EA, BLM states that a uniform Trail Management Corridor of 2 miles on each side of the centerline of the Trail is applicable to BLM lands throughout the area of the lease sale. In contrast to the NPS Co-Administrator’s statement in the OSNHT Comprehensive Administrative Strategy8OSNHT CAS at 22-29 that lacking inventory data a default corridor of 5 miles on either side of the Trail centerline is routine practice (and keeping in mind that the NPS administers many more NTs), the BLM’s Final EA stated: 

“Whereas the nature of a National Park allows for greater protection of viewshed, the multiple use mandate of the BLM confines it to a more conservative setting. For most segments of the trail, five miles from the centerline would be excessive…Lease notices have been added to all remaining parcels within two miles of the trail, to inform the potential lessee of the conflict.”9Lease Sale Final EA-DOI-BLM-UT-0000-2020-0004-EA, App. I at 235. The same rationale was apparently adopted in Lease Sale Final EA-DOI-BLM-UT-0000-2020-0005

As pointed out in BLM’s Manual 6280 and in the OSNHT CAS, the width of Trail Management Corridors is to be established through Trail inventory assessments and may vary in width along the length of a Trail. The NPS Co-Administrator’s guidance in the CAS had nothing to do with agency jurisdiction and NPS lands – “a National Park”, but with analytical evaluation of conditions relevant to protecting Trail resources, values, qualities, landscape setting, and recreational opportunities as intended by the NTSA and echoed in BLM’s own Manual 6280. BLM’s arbitrary and capricious explanation justifying an unfounded Trail Management Corridor width on agency land management authority and geographical jurisdiction – in this case the Federal Land Policy and Management Act, which does not trump other federal law, the NTSA – must be considered arbitrary and capricious. This BLM argument evidences the agency’s general arbitrary and capricious and disdainful approach to NT management in contrast to oil and gas leasing (and other) actions. 

Furthermore, even within the arbitrary and capricious, and unwarranted, two mile wide corridor adopted in both EAs, BLM still reached a decision to offer leases, with certain stipulations supposedly protecting Trail resources, values, qualities, landscape settings, and recreational opportunities. Given the NTSA intent to protect the Trail management corridor, from uses “incompatible” with the Trail and which would undoubtedly “substantially interfere with the nature and purposes of the [T]rail” these leases should have been removed from consideration and offering. See previous discussion on 16 U.S.C. §1246(c). 

– The final EAs seem to evidence that BLM only considered protection for high potential segments and high potential historic sites, rather than all federal protection components of the Trail in relation to the noted oil and gas lease sales. Again, a misreading of the intent of the NTSA. Furthermore, the BLM is unable to demonstrate that it ever even conducted a comprehensive inventory of all high potential segments and high potential historic sites along the OSNHT in accordance with its Manual 6280. 

An additional significant example of the ongoing practice of BLM disregard for NT management and protection was recently evidenced by its amendment of two separate land use plans/resource management plans (RMPs) motivated by President Trump’s Proclamation 9682, 82 Fed. Reg. 58089 (Dec. 4, 2017) downsizing Grand Staircase Escalante National Monument. Both the downsized Monument and the resultant upsized Kanab Field Office area of BLM contain portions of the OSNHT. Nevertheless, the new RMPs for these two BLM land management units contained little, and insufficient OSNHT information, analysis, and management prescriptions as required by Manual 6280. Despite comments submitted urging comprehensive RMP coverage of the OSNHT, and a protest of these new plans, BLM progressed with finalization without sufficient NT planning.10Protests mentioned in this regard – Protest of Grand Staircase-Escalante National Monument and Kanab-Escalante Planning Area Proposed Management Plans / Final Environmental Impact Statement (September 23, 2019) submitted by The Wilderness Society, et. al.; and, Protest of Final Environmental Impact Statement (FEIS) Regarding Resource Management Plans (RMPs) for the Grand Staircase Escalante National Monument (GSENM) and for Federal Lands previously included in the GSENM that are now identified as the Kanab-Escalante Planning Area (KEPA) (November 17, 2019) submitted by John W. Hiscock; are also attached for your reference.

RECOMMENDATIONS REGARDING THE DOI OIL AND GAS LEASING PROGRAM TO ENSURE THE PROTECTION OF NATIONAL TRAILS

The following recommendations are provided regarding the DOI oil and gas leasing program to ensure the protection of NTs. 

(1) An immediate Secretarial moratorium on all proposals for oil and gas leasing under the control of DOI on federal lands (lands managed by BLM, USFS, United States Fish and Wildlife Service, and the Bureau of Reclamation) within a ten mile wide default NT Management Corridor should be enacted. No new oil and gas lease offerings, sales, or development permitting shall occur unless and until such time as the noted agency in jurisdictional land management control has completed a comprehensive inventory and assessment of NT resources, values and qualities including landscape settings, and recreational opportunities, and adopted Trail Management Corridors devised to protect these factors in their land management plans for each federal land management unit. Under these provisions, even if oil and gas lease offerings are offered in the future, they should only be offered after a finding that such activities “will not substantially interfere with the nature and purposes’ of the geographically proximate Trail, and no new associated motor vehicle use shall be allowed in such oil and gas activities. 

(2) A Secretarial order directing all BLM State Offices, District Offices, and Field Offices to revise or amend applicable resource management/land use plans ensuring full public participation and review, and fully incorporating trail inventory information and management processes in accordance with BLM Policy Manual 6280 regarding NTs. Land use plans of the NPS, USFWS, and USBR units crossed by NTs, should also acknowledge NTs and ensure that Trail inventories and land management processes are incorporated. The Secretary is also encouraged to advise the Secretary of Agriculture and USFS to do the same to fulfill NTSA requirements in similar fashion to BLM policy approach. These revisions or amendments shall be initiated immediately and scheduled for completion within two years. 

(3) DOI policy regarding NTs, including subsidiary agency policy, shall be revised to clarify that all portions of NTs on federal public lands are Federal protection components of said Trails, in accordance with the NTSA. 

(4) It is recommended that DOI consider the review of all oil and gas leases issued relevant to and since the establishment of each NT to ensure that such were issued only after taking Trail Management Corridor protections into account, and if such considerations and protections were not taken into account DOI should consider adjustment of such leases to remedy degradation of NTs.

(5) Considerable concerns exist nationwide regarding the ensured reclamation of abandoned or closed oil and gas leasing sites. DOI shall strengthen measures to ensure reclamation of all oil and gas facilities previously, or henceforth appropriately authorized in extremely limited fashion, is conducted. Reclamation of any such sites in NT Trail Management Corridors should be required to restore all Trail resources, values, qualities including landscape setting, and recreational opportunities. 

(6) Adopt and ensure early notification and invitation to volunteer NT partner organizations to consult once any proposals are initiated for oil and gas leasing on federal public lands. BLM Policy Manual 6280 already requires such involvement (in regard to all varieties of BLM actions), stating:

C. Notification Requirements 1. For projects that may adversely impact the National Trail, the National Trail Administrator, the BLM State Office National Trail lead, or leads (for multistate proposed actions and trails); and a primary National Trail partner organization representative (in accordance with applicable law) will be invited to attend preauthorization or pre-application meetings, as applicable.11Manual 6280, p. 5-3

All proposed oil and gas actions within default or finalized Trail Management Corridors shall be deemed to possibly adversely impact NTs and, therefore, activate this provision. In the past consultation regarding NHTs has routinely been focused on, or limited to National Historic Preservation Act, Section 106. That consultation should certainly take place, however, timely and pre-action DOI consultation should take place on matters governed by the NTSA as well. 

(7) The Secretary shall strengthen DOI support agreements with volunteer Trail partner organizations with the goal of greater participatory input related to past and possible future oil and gas leasing, and other potentially adverse federal land allowances.

Thank you for the opportunity to provide these important comments. We welcome further communications and inquiries regarding the proper protection of our National Trails System and the natural, heritage, and recreational treasures protected therein.

John W. Hiscock, JD*
johnwhiscock@gmail.com

Paul Ostapuk
President
Old Spanish Trail Association
postapuk@gmail.com

Jennifer Tripp
Director of Trail Operations
Pacific Crest Trail Association
jtripp@pcta.org

Teresa Ana Martinez
Executive Director
Continental Divide Trail Coalition
tmartinez@continentaldividetrail.org

Alex Daue
Assistant Director, Energy & Climate
The Wilderness Society
alex_daue@tws.org

John Holland
Chairman
Grand Staircase Escalante Partners
john@gsenm.org

Beverly Lane
President
Anza Trail Foundation
beverlywlane@gmail.com
Valerie Rupp
Executive Director
Partnership for the National Trails System
valerie@pnts.org

Chandra Rosenthal
Rocky Mountain Office Director
Public Employees for Environmental Responsibility
crosenthal@peer.org

Phil A. Francis, Jr.
Chair
Coalition to Protect America’s National Parks
pfran42152@aol.com

Jeff Kish
Executive Director
Pacific Northwest Trail Coalition
jeffkish@pnt.org

Darrell Wallace
Chairman
Backcountry Horsemen of America
chairman@bcha.org

Shelley Silbert
Executive Director
Great Old Broads for Wilderness
shelley@greatoldbroads.org

Steven Gonzales
Executive Director
El Camino Real de los Tejas NHT Association
steven@elcaminorealdelostejas.org


LIST OF APPENDICES (digitally attached) 

APPENDIX A 

Comments regarding September 2020 Competitive Oil and Gas Lease Sale, DOI-BLM-UT-0000-2020-0004-EA, submitted by Southern Utah Wilderness Alliance, Center for Biological Diversity, Coalition to Protect America’s National Parks, Great Old Broads for Wilderness, John W. Hiscock, Living Rivers, National Parks Conservation Association, Natural Resources Defense Council, Old Spanish Trail Association, Partnership for the National Trails System, Public Employees for Environmental Responsibility, The Wilderness Society, Utah Chapter of the Sierra Club, Waterkeeper Alliance, Western Watersheds Project, WildEarth Guardians (July 9,2020). 

APPENDIX B 

Protest regarding September 2020 Competitive Oil and Gas Lease Sale, DOI-BLM-UT-0000-2020-0004-EA, submitted by Southern Utah Wilderness Alliance, Center for Biological Diversity, Coalition to Protect America’s National Parks, Great Old Broads for Wilderness, John W. Hiscock, Living Rivers, National Parks Conservation Association, Natural Resources Defense Council, Old Spanish Trail Association, Public Employees for Environmental Responsibility, Utah Chapter of the Sierra Club, Waterkeeper Alliance, Western Watersheds Project, WildEarth Guardians (August 21, 2020). 

APPENDIX C 

Comments regarding Proposed Oil & Gas Sale, Utah, December 2020 (DOI-BLM-UT-0000-2020-0005-EA), submitted by John W. Hiscock, and Public Employees for Environmental Responsibility (September 4, 2020). 

APPENDIX D 

Comments regarding Proposed Oil & Gas Sale, Utah, December 2020 (DOI-BLM-UT-0000-2020-0005-EA), submitted by OSTA (September 4, 2020). 

APPENDIX E 

Protest regarding Bureau of Land Management’s Notice of Competitive Oil and Gas Lease Sale to be Held December 2020, submitted by John W. Hiscock, and Public Employees for Environmental Responsibility (November 2, 2020) 

APPENDIX F 

Protest regarding DOI-BLM-UT-0000-2020-0005-EA and finding of No Adverse Effort [sic] for parcels UT1220-004, UT1220-005, UT1220-006, UT1220-010, UT1220-015, UT1220-016, UT1220-017, UT1220-018, UT1220-022, UT1220-024, UT1220-025, and UT1220-026, submitted by OSTA (November 2, 2020). 

APPENDIX G 

Protest of Grand Staircase-Escalante National Monument and Kanab-Escalante 15 

Planning Area Proposed Management Plans / Final Environmental Impact Statement submitted by The Wilderness Society, et. al. (September 23, 2019) 

APPENDIX H 

Protest regarding Final Environmental Impact Statement (FEIS) Regarding Resource Management Plans (RMPs) for the Grand Staircase Escalante National Monument (GSENM) and for Federal Lands previously included in the GSENM that are now identified as the Kanab-Escalante Planning Area (KEPA), submitted by John W. Hiscock (November 17, 2019).