United States Department of the Interior OFFICE OF H E A R I N G S A N D APPEALS

Interior Board of Land Appeals N . Quincy Street, Suite 300

Virginia 22203

703-235-3750 703-235-8349 (fax)

July 14, 2010

2010-127 WY-060-EA09-04

A. DENNIS Travel Management Plan

Decision Affirmed; Petition for Stay Denied as Moot

ORDER

Ray A. Dennis has appealed from and petitioned for a stay of the effect of that part of a February 10, 2010, Decision Record (DR) of the State Director, Wyoming State Office, Bureau of Land Management (BLM), approving the Sand Hills Comprehensive Travel and Transportation Management Plan The State Director based the DR on a November 2009 Environmental Assessment (EA) (WY-060-EA09-04), prepared pursuant to section of the National Environmental Policy Act of 1969 (NEPA), 42 § (C) (2006).

The CTTMP provides management guidance for non-motorized and motorized travel in the Sand Hills Management Area (MA), an area of public lands situated in T. 35 N. , Rs. 77 and 78 W., and T. 36 N. , Rs. 76-78 W., Sixth Principal Meridian, Natrona and Converse Counties, Wyoming. The MA is entirely surrounded by private and State lands and is located approximately miles northeast of Casper, Wyoming.

Dennis has not shown any error in the DR. For that reason, we affirm the DR and deny the petition for a stay as moot.

The DR also approved the Associated Casper Resource Management Plan (RMP) Amendment. To the extent Dennis may be appealing any part of the DR related to RMP Amendment approval, such an approval is not appealable to this Board. See 43 C.F.R. § 1610.5-2.

The MA originally encompassed a area of public lands. The RMP Amendment increased the public surface within the MA by 2,460 acres for a total of 20,090 acres. DR at 2. The CTTMP covers the MA, as expanded.

2010-127

Background

The Sand Hills MA is characterized by large stabilized sand dunes and associated vegetation. BLM established the MA in order to maintain that vegetation and to protect highly erosive soils and watershed values. The MA provides habitat for big game and other wildlife, and BLM has issued a number of special recreation permits (SRPs) for commercial hunting in the MA, including to Dennis, d/b/a Sweetwater Outfitters, While there are a number of existing oil and gas leases on MA lands, the 2007 Casper RMP designated the MA as "administratively unavailable for oil and gas leasing and geophysical exploration." EA at 3; see id. at 78 (Oil and Gas Leases Map). The lands within the MA are also included in various grazing allotments. EA at 77 (Grazing Allotments Map). The 2007 Casper RMP, which limited motorized off-highway vehicle (OHV) use in the Sand Hills MA to a designated network of roads and trails, directed that the Casper Field Office, complete a travel management plan (TMP) for the MA within 5 years. Id. at

The Sand Hills MA has no legal motorized public access. EA at 2; see id. at 12 ("Until the subdivision of the BB Brooks Ranch, there were only two built and maintained roads in the vicinity of the Sand Hills, neither of which provided motorized public access into the management area"). Therefore, public recreation and motorized use is limited in the MA. User groups include land owners whose private property borders the MA, including Dennis, and professional hunting guides who have obtained land access agreements. EA at 2. Most of the existing routes within the MA are considered to be primitive roads, which are maintained for regular and continuous use, but do not normally meet any BLM road design standards. EA at 11, 12. BLM defined less intrusive transportation routes, which represent less than 10 percent of the travel routes in the MA, as "ways", which are user created, normally used to maintain rangeland improvement projects, receive little to no use on an annual basis, and have a moderate to high degree of vegetative cover. Id.

BLM asserts in its Opposition to Statement of Reasons (Opposition) at 2, n.2, that at the time of its filing Dennis' SRP had expired, but that he was not barred from filing a new SRP application. On June 24, 2010, the Board received a copy of a letter from Dennis to the Casper Field Office stating that he had previously forwarded all the documentation necessary for continued use of his SRP, and in a response to BLM's Opposition, he disputes BLM's claim that his SRP is expired.

The BB Brooks Ranch encompasses an area of private lands totaling approximately 41,000 acres. Portions of that ranch, which are adjacent to the MA, have been subdivided and are available for purchase. See

Roads within the subdivided lands are private and do not provide public access to the MA.

2

IBLA 2010-127

Existing routes are primarily used in connection wi th livestock management and maintenance of rangeland improvement projects, and, to some extent, oil and gas lease activity, and private hunting by adjacent land owners, and permitted commercial hunting See id. at 19-20. BLM stated that for management purposes, "primitive routes and ways would be grouped and referred to as primitive roads or as travel routes" in the CTTMP. Id. at 12.

BLM states that the absence of the designation of roads has led, wi th the increase in private ownership of the lands surrounding the MA, to the creation, by hunters and others engaging in motorized OHV use, of new, unauthorized routes branching off of existing roads, which has degraded soils, vegetation, and other aspects of the environment. See EA at 12. While such degradation is fairly limited, BLM expects i t to continue and increase, encompassing even lightly and moderately used roads, especially i f additional motorized access is afforded across private lands surrounding the MA.

After inventorying the existing roads in the M A , 5 assessing the likely environmental impacts of adopting a TMP and alternatives thereto in the EA, and considering public comments submitted during the scoping and environmental review process that began in March 2007, the State Director approved the implementation of the CTTMP, which designates 28 miles of roads as open to motorized OHV use,

miles as open to motorized OHV use by authorized users only, and 8 miles as closed to motorized OHV use. See DR at 3. While certain roads were closed to motorized OHV use, they remained open to travel by foot or horseback. See EA at 13; DR at 2; Opposition at 6. The network of designated roads and their status (Open, Authorized Use Only, or Closed) is depicted on a map of the MA, attached to the DR as Appendix 1. See DR at 1.

Dennis appealed approval of the implementation of the CTTMP and petitioned for a stay during the pendency of his appeal. BLM opposes the issuance of a

While Dennis criticizes BLM for of knowledge concerning on-ground conditions, the road inventory was undertaken, on BLM's behalf, in April 2007 by persons associated wi th the Motorized Recreation Council of Wyoming (MRCoW), a private association of OHV enthusiasts. See EA at 11, 70, 72, 79 (Baseline Road Inventory Map); Sand Hills Route Inventory, J.R. Riggins, President, MRCoW.

Dennis also objects to "RMP decision 7048," arguing that i t is "not valid" since "these lands are not withdrawn[.]" Notice of Appeal and Statement of Reasons for Appeal at 1. That decision for the Sand Hills MA, made at the time of the 2007 revision of the Casper RMP, stated: "The area is withdrawn. The withdrawal segregates from operation of the public lands laws, including the mining

(continued...)

3

IBLA 2010-127

Discussion

Dennis objects to the DR's approval of the designation of six pre-existing roads, all apparently used in connection wi th his hunting guiding/outfitting operations.7 He contends that the designation of those roads as either open only for authorized use or closed violates the R.S. § 2477 status of these routes, which "have been in existence since the early having been "constructed and maintained as reasonable as in other back country areas of Wyoming." at 1.

There is no violation of R.S. § 2477. That statute, which derived from section 8 of the Act of July 26, 1866, 262, 14 Stat. 253, formerly codified at 43 § 932 (1970), 8 simply granted an ROW for the construction of highways over public lands, not reserved for public uses. 43 U.S.C. § 932 (1970).

An R.S. § 2477 ROW arises by operation of law as a result of public usage or other means, and its existence is determinable as a matter of State law. See Southern Utah Wilderness Alliance [(SUWA)] v. BLM, 425 F.3d 735, 758 (10th Cir. 2005); Courtney 122 IBLA 275, 279 (1992). For its own public land use planning and management purposes, BLM may determine whether an R.S. § 2477 ROW exists, but ultimately the matter must be resolved in court, where what is at issue is whether the State has, by some means, accepted the grant. See SUWA v. BLM, 425 F.3d at 752-58, 763-68, 769-70; Rainer Huck, 168 IBLA at 398; SUWA, IBLA 207, 214 (1989). Dennis has provided no evidence that such a determination has been made for any of the roads in question.

Moreover, BLM points out that during the planning process neither the counties nor the State identified any of the roads in the MA as an R.S. § 2477 ROW, and the Governor of the State of Wyoming expressed no objection to the proposed

laws." EA at 53. Such decisions are land use planning decisions that are subject to review by the Director, BLM, who issues a final decision for the Department, pursuant to 43 C.F.R. § 1610.5-2. Thus, the Board has no jurisdiction over such decisions. See Rainer Huck, 168 IBLA 365, 396 (2006).

Dennis labeled the six roads as Roads A through F on a copy of the map attached to the DR (Appendix 1), depicting BLM's designation of routes in the MA as either "Open," "Authorized Use Only," or "Closed." Roads A and E were designated as authorized use only. Roads B, C, D, and F were designated as closed.

R.S. § 2477 was repealed effective Oct. 21 , 1976, subject to valid existing rights-of-ways (ROWs), pursuant to section 706(a) of the Federal Land Policy and Management Act of 1976, 90 Stat. 2743, 2793, Pub. L. No. 94-579.

4

IBLA 2010-127

road designations later approved by the State Director in the DR. Opposition at 4-5, citing letter from Dave Freudenthal, Governor of the State of Wyoming, to the BLM State Director, dated Jan. 29, 2010.

Finally, we have held that the potential R.S. § 2477 status of a road on public land does not eliminate or curtail BLM's authority to decide whether to designate the road as open, closed, or limited to motorized OHV use in a TMP. See Owyhee County, Idaho, 179 IBLA 18, 27-28 (2010).

The six routes of concern to Dennis are: 1) Road A, a total of 3.1 miles long, referred to by Dennis as "the main road in question," traverses the central portion of the large block of public lands in the southern part of the MA; is the "only road, trail and way through the area providing access to this block of public lands"; leads to the entry gate of Road B, and is "a safe alternative route to the [main] proposed [travel] route in inclement weather"; 2) Road B, 0.6 miles long, provides access from Road A to a "vital watering hole" attractive to wildlife; 3) Road C, 357 feet long, is a small segment of a route generally crossing State lands and providing longstanding public access across such lands; 4) Road D, a total of 0.5 miles long, consists of two small segments of a route that mostly crosses State lands, providing access from the main proposed travel route to a "vital" watering hole attractive to wildlife; 5) Road E, a total of 2.3 miles long, provides access from the main proposed travel route, across public lands in the northeast corner of the MA, to private lands; and 6) Road F, 0.2 miles long, provides access from the main proposed travel route to a campsite used by Dennis. at 2-3.

BLM clearly gave serious consideration to the designation of routes across the MA for motorized OHV use. We note that BLM, in fact, designated what Dennis refers to as the "main proposed travel route," as well as a number of routes that crisscross the MA, as open to motorized OHV use. See DR at 1, Appendix 1. It concluded that doing so "would allow continued motorized use of public lands within the planning area for current permitted users and members of the public wi th legal access," such that "the total number of OHV users would remain near existing levels." EA at 24, emphasis added.

In addition, two roads in question, Road A, described by Dennis as the "main route in question" and, in his opinion, a preferred alternative to BLM's main proposed travel route, as well as Road E, are designated as limited to authorized use. In challenging this designation, Dennis seems most concerned about the impact on his business. Dennis originally complained that ranchers wi th hunting guiding/outfitting operations and access to the MA would be allowed access to "authorized use only" roads, while "our motorized access and ability to compete in vital areas wi th the

c o IBLA 2010-127

other outfitters operating on the BLM public lands" would be restricted. at 4.

As explained by BLM, those roads wil l remain open to any permitted business use:

The Draft EA defined routes "limited to authorized use only" as restricted to those grazing lessees that own and maintain the rangeland improvement projects associated with the route. However, in response to comments received during the comment period the definition was reworded to restrict use to permitted users having authorization for use of specific routes as described in the travel management guidelines and mitigation measures common to all alternatives in the Sand Hills CTTMP EA and

Opposition at 6. Thus, i f specific routes designated as "limited to authorized use only" are identified, analyzed, and approved in an SRP, the permittee may access those routes, such as Routes A and E. See id. at 6. In his response to BLM's opposition, Dennis states at unpaginated 2 that he agrees wi th the rewording.1 0

BLM closed the other four routes (Roads B, C, D, and F) of interest to Dennis. BLM did so because i t considered them to be unnecessary routes, which in the future were likely to cause or contribute to increases in motorized OHV use, resulting in possible misuse of the public lands and a proliferation of unapproved routes across

In response to comments received on the Draft EA concerning the perceived inequity of allowing certain outfitters access on such roads, while barring other outfitters, BLM stated that no alternative in the EA "allows for motorized use of roads 'limited to authorized use only' in association wi th Special Recreation Permits." EA at 67. Thus, it appears that BLM intended to restrict anyone holding an SRP, whether or not that person also held grazing privileges in the MA, from utilizing authoriized use only roads for SRP activities. However, in the DR, BLM decided that "[tjravel on roads designated as limited to authorized use only w i l l be restricted to permitted users having authorization for use of specific routes," which BLM now explains means that holders of SRPs may have access to routes limited to authorized use only.

Dennis also raises concerns about the impacts of cattle utilizing water wells developed in the MA pursuant to a Cooperative Range Improvement Agreement. However, as pointed out by BLM after detailing BLM's efforts since 2007 to improve rangeland conditions in the allotments in the MA, "livestock use/grazing is beyond the scope of the EA." Opposition at 15.

6

IBLA 2010-127

the public lands.11 See, e.g., DR at 2 system . . . remov[es] unnecessary routes in order to preserve natural EA at 12, 20, 21 , 23-28, 31-33.

Dennis offers no evidence to rebut BLM's factual determinations. Rather, he offers his opinion, based on his own personal experience, that closure is not necessary to protect natural resources.12 However, mere differences of opinion do not suffice to establish that BLM's analysis and conclusion are inadequate. Friends of

Bow, 139 IBLA 141, 147 (1997).

The specific roads that Dennis seeks to have designated as open are generally little more than a mile from other routes designated as open in the MA, and while they might provide him more convenient and desirable motorized access to particular sites or areas in the MA, he fails to rebut BLM's determination that the network of designated roads provides, by focusing on the "most commonly used" routes, "adequate motorized access across the management area" for "all persons wi th legal access." DR at 2, 79.

Dennis has failed to carry his burden to establish, by a preponderance of the evidence, that BLM committed a material error in its factual analysis or that the decision is not supported by a record that shows that BLM gave due consideration to all relevant factors and acted on the basis of a rational connection between the facts found and the choice made. See, e.g., Mary Byrne, 174 IBLA 223, 232 (2008).

Regarding Road F, BLM explains that i t "traverses an active sand dune," and it cites to mitigation measures outlined in Appendix C of the EA, which provides that "[n]o vehicle traffic would be allowed within 100 feet of sparsely vegetated sand (less than 20% vegetative cover) associated wi th active wind redeposition near active sand dunes." EA at 60. While that mitigation measure only applies "[w]hen off-route OHV use is approved for development or operation of a project," id. at 59, fact that the road traverses an active sand dune provides a rational basis for BLM's decision to close the road.

While Dennis complains that the closure of Road C, which is only a small segment on public land, "interrupts the continuous preexisting travel routes and roads on State lands that have been used by the public for decades" at 2), we note that the Governor of Wyoming expressed no objection to closure of Road C, see Opposition at 5, even though Dennis now asserts that the Governor recently stated that the "would not be closing access roads on Wyoming State lands as recommended by the BLM office." Response to Opposition at unpaginated 1.

IBLA 2010-127

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 C.F.R. § 4 .1, the decision appealed from is affirmed, and the petition for a stay is denied as moot.

I concur:

8