U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
UNITED STATES DEPARTMENT OF THE INTERIOR
December 20, 2012
In Reply Refer To:
8340, 8341, 8342,
8358, 9100 (250) P
EMS TRANSMISSION 12/27/2012
Instruction Memorandum No. 2013-035
To: All Washington Office and Field Office Officials
Attention: State, District, and Field Office Program Leaders including Recreation, National Landscape Conservation System, Planning, and Law Enforcement
From: Acting Director
Subject: Requirements for Processing and Approving Temporary Public Land Closure and Restriction Orders.
Program Areas: Recreation, National Landscape Conservation System, Planning, and Law Enforcement.
Purpose: This Instruction Memorandum (IM) establishes policy and procedures related to processing, reviewing, and implementing temporary closure or temporary restriction orders on Bureau of Land Management-managed public lands. This is necessary to ensure that proper authorities are used and Federal Register notices are approved and published in a timely manner.
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.
1. Temporary Closures and Restrictions Using 43 CFR subpart 8364 (Closures and Restrictions); 43 CFR subpart 8351 (Designated National Area); 43 CFR subpart 6302 (Use of Wilderness Areas, Prohibited Acts, and Penalties)
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. 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.
2. Temporary Closures Mandated by 43 CFR subpart 8341 (Conditions of Use)
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 effect upon soil, vegetation, wildlife, wildlife habitat, cultural resources, historical resources, threatened or endangered species, wilderness suitability, other authorized uses, or other resources…” Though compliance with the National Environmental Policy Act (NEPA) is required in advance of a closure action under 43 CFR 8341.2(a), use of the Categorical Exclusion that provides for temporary road or trail closures (516 DM 11.9 (G)(3)) can often be employed to satisfy this requirement. See the discussion in Section 4 on NEPA compliance.
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. In many circumstances, managers are aware of OHV problems well in advance of confronting a “considerable adverse effect,” and can take timely actions 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.
3. Duration and Scope of Temporary Closures or Restrictions
Temporary closures or restrictions should be implemented for the shortest time and in the smallest area necessary to protect resources, public health, and safety. Temporary closures or restrictions must 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 time frame 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.
In special cases (e.g., pending litigation) it may be necessary to indefinitely extend temporary closures established before the issuance of this policy that are still in effect. In such circumstances, field offices should consult the WO for further direction.
Closures and Restrictions Longer Than 24 Months
Closures and restrictions that are longer than 24 months in duration generally must be accomplished through the land use planning/land use plan amendment process, which includes a NEPA analysis. Permanent closures must always be accomplished through the land use planning process.
4. NEPA Compliance
Compliance with NEPA is generally required prior to the BLM closing or restricting the use of the public lands. (See below for discussion of emergency situations/alternative arrangements.)
Compliance with NEPA in the context of temporary closures may include:
· Categorical Exclusions (e.g., 516 DM 11.9 (G)(3), for temporary road or trail closure).
· Environmental Assessments.
· Environmental Impact Statements (i.e., specific closure decisions adopted in a completed Resource Management Plan).
A Determination of NEPA Adequacy (DNA) can also be used to document that the contemplated action has been adequately covered in an existing NEPA document.
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. The Council on Environmental Quality (CEQ) regulations (40 CFR 1506.11) provides 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 the 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:
· Cleanup of a hazardous material spill.
· Fire suppression activities related to ongoing wildland fires.
· Emergency stabilization actions following wildland fires or other disasters.
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 1 has additional direction for Planning and NEPA considerations.
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.
6. State and Washington Office Review for Publication of Federal Register Notices
All notices of temporary closure and restriction under 43 CFR subpart 8364, 43 CFR subpart 6302, 43 CFR subpart 8351, or section 8341.2 must be approved by the state director before submission to the WO. Once a manager decides to temporarily close or restrict uses, all supporting information must be immediately prepared and sent to the state office. The state office should send the package to the WO in a timely manner. The WO will file the notice for publication in the Federal Register. As noted below, timely filing of the Federal Register Notice can affect the enforceability of the closure. 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 are encouraged 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.
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
7. Procedures and Effective Date of Federal Register Notices.
Generally, a closure order is only effective upon publication of the order in the Federal Register. However, in extraordinary 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 or restriction order prior to the date of publication in the Federal Register but was aware of the order, the order may be effective against that person. However, efforts to enforce a closure or restriction before the order is published in the Federal Register could risk dismissal of the citation if contested. 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.
8. Memorandum of Understanding Obligations and Coordination with the Federal Land Hunting, Fishing, and Shooting Sports Roundtable
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.
Timeframe: This policy is effective immediately.
Budget Impact: None.
Background: As resource uses 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, National Landscape Conservation System and Community Partnerships Directorate, the Division of Decision Support, Planning and NEPA, the Office of the Solicitor, the Office of Law Enforcement and Security, and the Division of Regulatory Affairs.
Contact: Any questions or concerns may be directed to Frank Jenks, Recreation and Visitor Services Division (WO-250) at 208-373-3993, or by e-mail at Frank_Jenks@blm.gov.
Signed by: Authenticated by:
Janine Velasco Ambyr Fowler
Acting Director Division of IRM Governance, WO-560