U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
June 6, 2011
In Reply Refer To:
8340, 8341, 8342, 8358, 9100 (250) P
EMS TRANSMISSION 06/15/2011
Instruction Memorandum No. 2010-028, Change 1
To: All Field Office Officials
Attention: State, District, and Field Office Program Leaders including Recreation, National Landscape Conservation System, Planning, and Law Enforcement Officers
Subject: Requirements for Processing and Approving Temporary Public Land Closure and Restriction Orders
Program Areas: Recreation, National Landscape Conservation System, Fire, Hazardous Materials, Planning, and Law Enforcement.
Purpose: Change 1 replaces Instruction Memorandum (IM) 2010-028, revising parts of the original IM and associated attachments to improve clarity.
Policy/Action: All state and field offices must process closure and restriction orders in accordance with the policies and procedures contained in this guidance. States may develop supplemental procedures to implement this guidance as necessary.
Temporary closure or restriction orders under these authorities are enacted at the discretion of the authorized officer to resolve management conflicts and protect persons, property, and public lands and resources. A closure or restriction order should be considered only after other management strategies and alternatives have been explored including, but not limited to, increased law enforcement, cooperative efforts with local governments and organizations, engineering (e.g., fencing, barriers, or trail improvements), education, and outreach. In general, the duration of temporary closure or restriction orders should be limited to 24 months or less; however, certain situations may require longer closures and/or iterative temporary closures.
See Section 3, below.
Under 43 CFR 8341.2(a), the Bureau of Land Management (BLM) is required to immediately close affected areas when off-highway vehicles (OHV) “are causing or will cause considerable adverse effects upon soil, vegetation, wildlife, wildlife habitat, cultural resources, historical resources, threatened or endangered species, wilderness suitability, other authorized uses, or other resources.”
In many circumstances, managers are aware of OHV problems well in advance of confronting “considerable adverse effects,” and can conduct an environmental analysis through the NEPA process prior to closing or restricting an area as the result of OHV use. Managers are encouraged to take action to correct developing OHV problems well in advance of confronting the “considerable adverse effects,” that trigger the closure requirement under 43 CFR 8341.2. Thus, in those situations where managers are aware of OHV problems in advance of a determination of “considerable adverse effects” timely actions can be taken to reduce the impacts of OHV use or conduct a NEPA analysis with public participation before it becomes necessary to close or restrict under this authority.
In certain circumstances, it may be possible to invoke the emergency/alternative arrangement National Environmental Policy Act (NEPA) provisions set forth in 40 CFR 1506.11 in response to OHV use. In such circumstances, it is suggested that the BLM Field Office consult with the Division of Decision Support, Planning and NEPA (WO-210) and the Office of the Solicitor. See below discussion in Section 4 on NEPA compliance.
Temporary closures or restrictions should be implemented for the shortest time and in the smallest area necessary to protect resources, public health, and safety. This IM establishes the BLM policy that temporary closures or restrictions generally be limited to 24 months or less in duration. This policy is necessary to ensure that temporary closures or restrictions do not become de facto permanent closures or restrictions without public involvement or without a defined timeframe for resolution. Where a solution to the issues that necessitated a closure or restriction can be found, but will take longer than 24 months to resolve, (e.g., via a long-term planning decision), managers should issue new temporary closure or restriction orders in accordance with this IM before the original order expires.
In circumstances where a manager knows in advance that a temporary closure must remain in effect longer than 24 months in order to effectively resolve an issue, (e.g., mandatory soil stability/re-vegetation requirements), the manager may provide a rationale and justification for an alternative duration for the closure or restriction in the closure order, the Federal Register Notice, and the associated briefing package submitted to the Washington Office (WO) for review and approval.
The 24-month limitation applies to the issuance of new temporary closures, and does not affect closures or restrictions that are already in effect. Field offices are encouraged to reexamine existing temporary closures to determine if they are still required, or if they require updating.
Compliance with NEPA is generally required prior to a BLM closure or restriction of uses of the public lands, under any of the authorities set forth in Sections 1 and 2 of this IM. (See below for discussion of emergency situations/alternative arrangements.)
Compliance with NEPA in the context of temporary closures may include:
Closures and restrictions that are longer than 24 months in duration generally should be accomplished through the land use planning process, which includes a NEPA analysis. Permanent closures must be accomplished through the land use planning process.
5. Emergency Actions
In the event of an emergency, immediate actions, such as a closure or restriction of uses of the public lands, must be taken to prevent or reduce risk to public health or safety, property, or important resources. See 43 CFR 8364.1. The Council on Environmental Quality (CEQ) regulations (40 CFR 1506.11) provide that- in an emergency, “alternative arrangements” may be established to comply with NEPA. Alternative arrangements do not waive the requirement to comply with NEPA, but establish an alternative means for compliance. Alternative arrangements are limited to the actions necessary to control the immediate effects of the emergency. For actions that cannot be categorically excluded, the decision maker must contact Branch Chief, Planning (WO-210) to determine how NEPA requirements will be met.
The BLM NEPA handbook (H-1790-1, Section 2.3) defines the following actions as typical emergency actions:
Emergencies are unforeseen events of such severity that they require immediate action to avoid dire consequences. Typical closures and restrictions imposed in response to known or planned events occurring on public lands, or long-occurring activities such as target shooting, OHV use, camping, or parking, for example, are not usually considered emergencies. A Federal Register Notice drafted for a temporary closure should not be referred to as an “emergency closure.”
Attachment 2 includes a list of appropriate authorities available to temporarily close and restrict specified uses on public lands, the requirements for NEPA compliance, and the requirements for publication and posting of the order.
All notices of temporary closure and restriction under 43 CFR 8364, 43 CFR 6302, 43 CFR 8351, or 8341.2 must be approved by the state director before submission to the WO. The WO will file the notice for publication in the Federal Register. For closures or restrictions that can be reasonably foreseen, (e.g., a closure for an annual event such as the Reno Air Races), field offices should work to obtain necessary approvals through state offices and forward required materials to the WO at least 3 months before the order is intended to take effect. Where possible, renewal of temporary closures or restrictions should also be initiated at least 3 months before the original order is scheduled to expire.
Generally, a closure order is only effective upon publication of the order in the Federal Register. However, in certain situations, the order (signed by the authorized officer) may be effective at an earlier date. For example, where a person is cited for a violation of a closure order prior to the date of publication in the Federal Register, but was aware of the order, the closure order may be effective against that person. It is suggested that the BLM Field Office contact the Office of the Solicitor for further guidance on this issue.
See Attachments 2 and 3 for more information on the topic of effective dates and publication requirements, and for Federal Register Notice procedures for closure and restriction orders.
Closure and restriction orders submitted for review and approval must be accompanied by a briefing paper, maps, aerial, or other photographs showing geographic areas and affected resources, along with other supporting documentation that would help reviewers understand the need for the action.
Closure and restriction orders that may affect hunting access, shooting sport activities, or the discharge of firearms must comply with the Federal Land Hunting, Fishing and Shooting Sports Roundtable Memorandum of Understanding (MOU). This MOU requires notification of the action to shooting organizations and alerts them of opportunities for public involvement. The IM-2007-041 transmits procedures to be used in implementing the MOU and can be accessed online in the 2007 IM section at:
Timeframe: This policy is effective immediately.
Budget Impact: None.
Background: As resource use and demands for public access have increased, so has the need for the BLM to temporarily close or restrict areas to certain uses in order to protect resources, public health, and safety. However, it is important that closure and restriction orders are established only after other management strategies and alternatives have been explored, and it is determined that a closure or restriction order is necessary. Closures and restrictions must be established in accordance with applicable authorities, and the Department of the Interior and BLM policies and procedures.
Manuals/Handbook Sections Affected: None.
Coordination: Development of this policy was coordinated with the Renewable Resources and Planning Directorate, the Division of Decision Support, Planning and NEPA, the Office of the Solicitor, the Office of Law Enforcement and Security, the National Landscape Conservation System and Community Partnerships Directorate, and the Division of Regulatory Affairs.
Contact: Any questions or concerns may be directed to Frank Jenks, Planning and Resources Branch (WO-251), Recreation and Visitor Services Division (WO-250) at 202-912-7249, or by e-mail at Frank_Jenks@blm.gov.
Signed by: Authenticated by:
Mike Pool Robert M. Williams
Acting, Director Division of IRM Governance,WO-560