Final Supplementary Rules on Public Land in Humboldt, Pershing and Washoe Counties, NV

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Final Supplementary Rules.

SUMMARY:

The Bureau of Land Management (BLM) Winnemucca Field Office, Nevada, and Surprise Field Office, California, are issuing new supplementary rules for the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area (NCA), associated designated wilderness, and other contiguous lands as identified in the 2004 Resource Management Plan (RMP) and Record of Decision. These supplementary rules are needed to protect the area's natural and cultural resources and provide for public health and safety on public lands. These supplementary rules do not propose or implement any land use limitation or restrictions other than those limitations or restrictions included within the decisions in the RMP or allowed for by existing law or regulation.

DATES:

These supplementary rules are effective August 7, 2008.

ADDRESSES:

Bureau of Land Management, Winnemucca Field Office, Attn: Dave Cooper, 1500 E. Winnemucca Blvd., Winnemucca, NV 89445-2921.

FOR FURTHER INFORMATION CONTACT:

Dave Cooper, NCA Manager, 775-623-1500, e-mail dave_cooper@nv.blm.gov.

SUPPLEMENTARY INFORMATION:

I. Background

The Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area and associated wilderness was created by Congress on December 21, 2000 (Pub. L. 106-554).

During a three and a half year planning process required by the enabling legislation, the BLM prepared a RMP for the NCA, associated wilderness and other contiguous lands. The RMP contains decisions that include additional limitations on public use within the RMP planning area. These supplementary rules are necessary to implement those limitations.

On November 9, 2007 the BLM published proposed supplementary rules for the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area, associated designated wilderness, and other contiguous lands in Nevada, requesting public review and comment. 72 FR 63625.

II. Public Comment

The comment period closed December 10, 2007. The BLM received one written response from a non-governmental organization. The comment was generally supportive of the proposed supplementary rules, but expressed concern about the complexity of the language and recommended brevity and simplicity. However the comment provided no specific examples of where the rules were too complex, nor were there suggestions as to where the proposed rules could be shortened or simplified. During the preparation of the RMP, the decisions which form the basis of the proposed rules were subject to public scrutiny and the wording was carefully chosen to be as clear and concise as possible.

The comment also included two specific issues:

(1) The comment stated, “Damage to any vegetation should be prohibited in the front country zone.” This comment is related to Section 1, Rule 1 of these supplementary rules: “Unless posted or prohibited, you may pull off designated roads and trails a maximum of 50 feet from the center of the road/trail for parking or camping if damage to vegetation will be minimal and new parallel roads will not be created.” (emphasis added). The commenter's reasoning was that, because the word “minimal” was not defined in the proposed supplementary rule, visitors may view their impact on vegetation as minimal when in fact the damage may be significant.

BLM Response: The term “front country zone” in the comment refers to portions of the planning area for which the RMP authorizes the highest levels of public use. (Section 2 of these supplementary rules includes a more detailed definition.) A rule prohibiting damage to “any” vegetation in the front country zone (for example, the trampling of a single blade of grass) would effectively prohibit public use of any areas away from designated roads and trails in that zone.

This result would clearly be inconsistent with the decision of the RMP (section 2.2.2 Decision TRAN-11) to allow vehicle parking and camping within the front country zone. The RMP also contains a statement in section 2.2.20 Decision REC-5 which notes that: “Visitors will be encouraged to use existing disturbed areas for camping and pulling off roads and motorized trails to access camping areas, and will be required to leave vegetation intact.”

In order to address the commenter's concerns, the BLM has added a definition of “minimal damage to vegetation” in section 2 of these supplementary rules to better clarify the intent of the rule while still providing for reasonable public uses of the area. The added definition states: “Minimal Vegetation Damage: Crushing by foot or vehicle tires or the physical removal with hand tools of herbaceous vegetation or woody vegetation less than 18 inches tall necessary for the parking of one or more motorized vehicles, establishment of a campsite, or providing for a safe campfire. The physical removal or damage of woody vegetation taller than 18 inches is considered more than minimal damage.”

(2) The comment stated, “Collecting of plants, rocks, or other items should be discouraged in the front country zone.”

BLM Response: Rules 3 and 4 under Section 1 are related to collection of rocks and fossils:

Rule 3: “You must not collect petrified wood, common invertebrate fossils, rocks or minerals with motorized equipment.”

Rule 4: “You must not collect more than 25 pounds per day plus one piece, with a maximum collection of 250 pounds per year, of petrified wood. Similar limits apply to each of the following: Common invertebrate fossils, rocks, and minerals.”

The front country zone encompasses about 121,245 acres of the RMP planning area. Approximately 88 percent of this area is associated with the barren playa of the Black Rock Desert. The remaining portions of the front country zone are areas adjacent to the playa or very small areas near Massacre Ranch, Stevens Camp and the Soldier Meadows hot springs. The front country zone is not known for rocks, petrified wood or invertebrate fossils sought by collectors. For this reason, the BLM does not see a need to further restrict the collection of rock or fossils in the front country zone.

The BLM has also determined that the RMP, and the definition of “Minimal Damage to Vegetation” in these supplementary rules, adequately addresses the collection of plants in the front country zone. The most common type of collection of vegetative matter that occurs within the front country zone is firewood collection associated with removal of brush within short distances of campsites. The collection of plants associated with botanical research or removal of plants for horticultural use is very limited within the entire planning area.

The RMP in sections 2.2.20 contains decisions related to the collection of plant materials and camping within the front country zone:

Decision REC-19 (2.2.20) states: “Cutting of green or standing trees in the planning area will be prohibited, and wood collection may be further restricted in sensitive habitat areas or where resources have been depleted.”

Decision REC-6 establishes that camping within the front country zone will only be allowed at designated sites.

Decision REC-7 provides that where monitoring data shows that camping is causing resource damage, camping can be restricted or eliminated. These two decisions give the BLM control over where visitors camp within the front country zone, and the ability to eliminate or restrict camping where resource impacts, including over collection of firewood, might occur in the future. Moreover, these supplementary rules prohibit the physical removal or damage of woody vegetation taller than 18 inches, and the collection of more wood than is necessary for a safe campfire. The BLM sees no need to further restrict the collection of plants in the front country zone.

III. Discussion of Rules

These supplementary rules apply to the public lands within the boundary of the planning area for the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area, associated wilderness, and other contiguous lands as set forth in the RMP. The BLM has determined these supplementary rules to be necessary to protect the area's natural and cultural resources, to provide for public health and safety, reduce user conflict, enhance the experience of the visitor, and reduce the potential for damage to the environment. These supplementary rules do not propose or implement any land use limitations or restrictions other than those limitations or restrictions included within the decisions in the RMP or allowed for by existing law or regulation.

Some of these supplementary rules make reference to designated camping areas, routes, trails and management zones. Those designations were developed as part of the collaborative resource management planning process for the NCA, associated wilderness, and other contiguous lands in Nevada, which resulted in adoption of the plan in July 2004. A map showing the lands to which these rules apply, which is all lands within the planning area, can be found in the RMP at Section 1.3 and as shown at Map 1.1, or can be obtained at the address listed above.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

These supplementary rules are not a significant regulatory action and are not subject to review by Office of Management and Budget under Executive Order 12866. These supplementary rules will result in an annual cost of much less than $100 million or more on the economy. They will not adversely affect in a material way the economy, productivity, competition, jobs, environment, public health or safety, or state, local, or tribal governments or communities. These supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. These supplementary rules do not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; nor do they raise novel legal or policy issues. They impose rules of conduct and impose other limitations on certain recreational activities within the NCA, associated wilderness, and other contiguous lands in Nevada to protect natural and cultural resources and human health and safety.

Clarity of the Supplementary Rules

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. A comment was received stating that the proposed supplementary rules were too complex and encouraged brevity and simplicity. However, the commenter did not suggest where the rules were too complex or suggest ways they could be simplified. The commenter did point out that the word “minimal” in one rule was not defined and that lack of a definition could lead to confusion among visitors, and could result in damage to vegetation. As a result of that comment, the BLM added a definition of “minimal vegetation damage” to the final rule.

National Environmental Policy Act

The BLM prepared an environmental impact statement as part of the development of the RMP. During that National Environmental Policy Act process, many proposed decisions were fully analyzed, including the substance of these supplementary rules. The pertinent analysis can be found in Chapter 2, Alternatives, of the Proposed Resource Management Plan and Final Environmental Impact Statement for the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area (NCA) and Associated Wilderness, and Other Contiguous Lands in Nevada, September 2003. The Record of Decision for the RMP was signed by the BLM State Directors of Nevada and California on July 15, 2004. These supplementary rules provide for enforcement of plan decisions. The rationale for the decisions made in the plan is fully covered in the EIS. The EIS is available for review in the BLM administrative record at the address specified in the ADDRESSES section.

Regulatory Flexibility Act

Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. These supplementary rules pertain to recreational use of specific public lands, and do not affect commercial or governmental entities of any size. Therefore, the BLM has determined under the RFA that these supplementary rules will not have a significant economic impact on a substantial number of small entities, and do not necessitate preparation of a regulatory flexibility analysis.

Small Business Regulatory Enforcement Fairness Act

These supplementary rules do not constitute a “major rule” as defined at 5 U.S.C. 804(2). They will not result in an annual effect on the economy of $100 million or more, in a major increase in costs or prices, or in significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. They will merely impose reasonable restrictions on certain recreational activities in the NCA, associated wilderness and contiguous lands to protect natural and cultural resources, the environment, and human health and safety.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1501 et. seq., requires an assessment of unfunded mandates on state, local or tribal governments. These supplementary rules do not impose any unfunded mandate on state, local, or tribal governments, in the aggregate, or the private sector, of more than $100 million per year. The rules also will not have a significant or unique effect on small governments. They restrictions on certain recreational activities in the NCA, associated wilderness, and contiguous lands to protect natural and cultural resources, the environment and human health and safety. Therefore, the BLM is not required to prepare a statement containing the information required by the UMRA.

Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings)

These supplementary rules are not a government action capable of interfering with constitutionally protected property rights. The rules will have no effect on private lands or property. Therefore, the BLM has determined that these supplementary rules will not cause a taking of private property or require preparation of a takings assessment under this Executive Order.

Executive Order 13132, Federalism

These supplementary rules will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. These supplementary rules will have little or no effect on state or local government. Therefore, in accordance with Executive Order 13132, the BLM has determined that these supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

Under Executive Order 12988, the BLM has determined that these supplementary rules will not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of the Order.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

These supplementary rules provide for enforcement of decisions adopted in the Record of Decision and thoroughly analyzed in the EIS prepared for the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area associated wilderness, and other contiguous lands in Nevada. During preparation of the EIS, government-to-government consultation was conducted with the six tribal governments with interests in the affected area. None of these tribal governments expressed concerns regarding the decisions these supplementary rules are designed to enforce. Therefore, in accordance with Executive Order 13175, the BLM has found that these supplementary rules do not include policies that have tribal implications.

Paperwork Reduction Act

These supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

These supplementary rules do not comprise a significant energy action. They will not have an adverse effect on energy supplies, production, or consumption. They address recreational use of specific public lands, and have no connection with energy policy.

Author

The author of these supplementary rules is Dave Cooper, Bureau of Land Management, Winnemucca Field Office.

Supplementary Rules for the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area and Associated Wilderness, and Other Contiguous Lands in Nevada:

Under 43 CFR 8365.1-6, the Bureau of Land Management establishes the following supplementary rules on all public lands within the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area and Associated Wilderness, and Other Contiguous Lands in Nevada Resource Management Plan (RMP) boundary as shown in the RMP at Section 1.3 and as shown at Map 1.1, RMP Reference Map.

Section 1, Prohibited Acts/Rules

1. Unless posted or prohibited, you may pull off designated roads and trails a maximum of 50 feet from the center of the road/trail for parking or camping if damage to vegetation will be minimal and new parallel roads will not be created.

2. You must not possess, destroy, deface, dig, or remove petrified wood, common invertebrate fossils, rocks or minerals without a permit in an area otherwise closed to collecting these resources.

3. You must not collect petrified wood, common invertebrate fossils, rocks or minerals with motorized equipment.

4. You must not collect more than 25 pounds per day plus one piece, with a maximum collection of 250 pounds per year, of petrified wood, common invertebrate fossils, rocks, and minerals.

5. You must not rock climb within the boundaries of the High Rock Canyon Area of Critical Environmental Concern (ACEC).

6. You must not camp with a vehicle anywhere other than in designated sites in the following areas: High Rock Canyon ACEC, the Lahontan Cutthroat Trout Area, Class A and B trail segments of the Emigrant Trails, Stevens Camp, Trego Hot Springs, Massacre Ranch and Mud Meadows areas, and the front country management zone with the exception of the Black Rock Desert playa.

7. You must not build, maintain or use a campfire on the Black Rock Desert playa or adjacent dune areas without the use of a surface protecting device.

8. You must not camp outside designated sites within the Soldier Meadows ACEC.

9. You must not camp within 100 yards of a water hole in such a manner that wildlife or domestic stock will be denied access to such water, unless campsites are designated by the BLM within this 100 yard area.

10. An authorization by the authorized officer, whether by permit or other written means to use public lands in the NCA, associated wilderness, and other contiguous lands, may contain reasonable restrictions necessary to preserve and protect public lands and their resources, and to minimize interference with and inconvenience to other visitors. You must follow the terms, conditions, and stipulations of your authorization.

Section 2, Definitions

Camping—Erecting a tent or a shelter of natural or synthetic material, preparing a sleeping bag or other bedding material for use, or parking of a motor vehicle, motor home, or trailer for the purpose or apparent purpose of overnight occupancy.

Camp with a vehicle—Parking of a motor vehicle, motor home, or trailer for the purpose or apparent purpose of overnight occupancy within one-fourth mile of the parked vehicle, motor home, or trailer.

Common invertebrate fossil—Any fossilized marine life form without a spinal column, including but not limited to snails, corals, diatoms, and clams.

Designated site—Specific location identified by the BLM for camping or other purposes.

Designated roads and trails—Roads and trails open to motorized vehicle use and identified on a map of designated roads and trails that is maintained and available for public inspection at the Winnemucca Field Office, Winnemucca, Nevada and the Surprise Field Office, Cedarville, California. Designated roads and motorized trails are open to public use in accordance with such limits and restrictions as are or may be specified in the RMP or in future decisions implementing the RMP. However, any road or trail with any restrictive signing or physical barrier, including gates, posts, branches, or rocks intended to prevent use of the road or trail is not a designated motorized road or motorized trail.

Management zone—The three administrative designations (Front Country, Rustic, and Wilderness) into which the NCA, associated wilderness, and contiguous lands have been divided for management purposes as depicted on the Visitor Use Management Zones Map (RMP, map 2-13). Each management zone has a unique set of objectives and management decisions as described below.

• Front country zone—A management zone encompassing those lands that are intended to be the focal point for visitation where visitor accommodations would be made to provide primary interpretation, overlooks, trails, and associated facilities necessary to highlight resources and features of the NCA.
• Rustic zone—Those lands that are intended to provide an undeveloped, primitive, and self-directed visitor experience while accommodating motorized and mechanized access on designated routes, and where facilities are rare and provided only where essential for resource protection.
• Wilderness zone—Those lands that are intended to provide an undeveloped, primitive, and self-directed visitor experience without motorized or mechanized access and where facilities are nonexistent.

Minimal vegetation damage—rushing by foot or vehicle tires or the physical removal with hand tools of herbaceous vegetation or woody vegetation less than 18 inches tall necessary for the parking of one or more motorized vehicles, establishment of a campsite, or providing for a safe campfire. The physical removal or damage of woody vegetation taller than 18 inches is considered more than minimal damage.

Motorized equipment—Any machine that uses or is activated by a motor, engine, or other non-living power source.

Motorized vehicle—Any vehicle that is self-propelled by a non-living power source, including electric power, but not operated upon rails or upon water.

Rock climbing—Ascending or descending a rock face using rope and devices such as pitons, bolts, chocks, camming devices and webbing.

Surface protecting device—A device to prevent campfires from coming into direct contact with the ground surface, such as an elevated platform, open grill, fire blanket, or fire pan for the purpose of preventing fire scars on the surface of the Black Rock Desert playa.

Vehicle—Every device in, upon, or by which a person or property is or may be transported or drawn on land, except devices used exclusively upon stationary rails or track.

Water hole—Any source of drinking water for livestock, wildlife, wild horses, and burros including but not limited to wildlife guzzlers, stock tanks, watering troughs, natural springs, and seeps.

Penalties

Under section 303(a) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1733(a) and 43 CFR 8360.0-7 and 8365.1-6, violation of any of these supplementary rules on public lands within the boundaries established in the rules, may result in a trial before a United States Magistrate and may be punishable by a fine of no more than $1,000, or imprisonment for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided by 18 U.S.C. 3571(b)(5).

Authority: 43 U.S.C. 1740 and 43 CFR 8365.1-6.