Land of many uses, but are ORVs one of them?
The current disputes in Summit County about whether off-road vehicle (ORV) use should be permitted on public land are nothing new; the issue was addressed as early as 1972 when President Nixon issued an executive order directing federal land agencies to identify acceptable areas for ORVs and eliminate their use elsewhere. The original order was amended by President Carter in 1977, and continues in effect, to require closure of areas where ORV use is causing “considerable adverse effects” to forest resources and other users, and to reopen such areas only after the effects have been eliminated and measures implemented to prevent future occurrence. The White River National Forest, as one example, is implementing these orders by revising its travel management plan to specify the types of recreational activities permitted within different parts of the forest. (County land isn’t affected by the executive orders, but the BOCC face similar considerations as federal agencies in addressing ORV use.)In order to put ORV conflicts in perspective, it is useful to examine our nation’s evolving approach to the concept of “multiple use” on public land. In the beginning, our laws encouraged exploitation of minerals, timber and other commodities. This phase began roughly in 1860 with the passage of the Homestead Act, and continued for decades with mining and forest laws geared toward exploitation of natural resources. These laws played a big role in the history of Summit County, by encouraging settlers to move west to search for valuable minerals. Many mining claims patented under the 1872 General Mining Law are private land even today. Leaders at the time, including Theodore Roosevelt and Gifford Pinchot, were early champions of the philosophy of multiple use, which assumed that, with proper management, many seemingly incompatible uses – including logging, mining, grazing and recreation – were possible on public land. Multiple use in this era meant making the most exhaustive use of the land’s resources.A second phase of public land use began roughly with the adoption of the Wilderness Act in 1964 and was marked by the emergence of environmental values and the realization that extraction of resources was taking its toll on the nation’s air, water, rangeland and general landscape. The former goals of exploitation were tempered during this era with new laws designed to protect the land, including the National Environmental Policy Act of 1969, the 1970 Clean Air Act, the 1972 Clean Water Act, the Endangered Species Act of 1973, the Federal Land and Policy Management Act of 1976, and the National Forest Management Act of 1976. Despite the new environmental consciousness, policymakers never abandoned the idea that all uses could coexist on public land. The quandary has been deciding what uses are allowed where – something woefully unclear under the laws. It appears that the nation is now in a third phase of managing public lands, one in which many citizens value public land primarily so they can use it for their own recreation. Disputes continue between exploiters and environmentalists (to paint with a broad brush), but there are increasingly disputes between people who want to recreate on the land in differing ways. When legal disputes have arisen over ORV access, the courts have most often ruled against ORV users. This appears to be (1) because a majority of the public favors non-motorized uses over motorized uses; (2) because environmental laws are stronger than laws requiring multiple use; and (3) because government agencies are deemed to have broad discretion restricting ORV use if they deem it necessary in the overall public interest. While multiple use continues to be an important aspiration, the legal trend is toward increasing restriction of ORV use. Noah Klug is an attorney with the Breckenridge law firm of Bauer & Burns, P.C. He may be reached at Noah@BreckenridgeLawyer.com or (970) 453-2734.
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