Requirements for Processing and Approving Temporary Public Land Closure and Restriction Orders

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov/

December 11, 2009

In Reply Refer To:

8340, 8341, 8342, 8358, 9100 (250) P

EMS TRANSMISSION 12/17/2009

Instruction Memorandum No. 2010-028

Expires: 09/30/2011

To:                   All Field Office Officials

Attention:  State, District and Field Office Program Leaders including Recreation, National Landscape Conservation System, Fire, Hazardous Materials, Planning, and Law Enforcement Officers

From:               Director          

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:  This Instruction Memorandum (IM) clarifies policy and procedures related to processing, reviewing, and implementing temporary closures or temporary restriction orders on the National System of 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 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.  Bureau of Land Management (BLM) policy limits the duration of temporary closure or restriction orders to 24 months or less.

National Environmental Policy Act (NEPA) analysis is required prior to the BLM closing the public lands to certain uses or restricting specific uses of the public lands under the authorities of 43 CFR § 8364.1, 8351.2-1, and 6302.19.Most closures and restrictions implemented by the BLM fall into these categories.

Adequate NEPA analysis and documentation for temporary closures and restrictions may include:

Categorical Exclusions (CX)

Environmental Assessments (EA)

Environmental Impact Statements (EIS) (i.e., specific closure decisions adopted in a completed Resource Management Plan)

A Determination of NEPA Adequacy can also be used to document that the contemplated action has been adequately covered in an existing NEPA document.

2. Temporary Closures Mandated by 43 CFR Subpart 8341 (Conditions of Use)

Under 43 CFR § 8341.2(a), the BLM is authorized to immediately close affected areas when off-road vehicles, “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”.NEPA analysis is not required prior to the closure being issued in the case of an emergency as defined by the Council on Environmental Quality (CEQ) regulations at 40 CFR §1506.11.However, NEPA analysis must be completed in a timely manner after the action has been taken in order to disclose the effects and determine remedial activities. This analysis must define the rational basis of the closure, and must be prepared in consultation with the CEQ, through the Division of Decision Support, Planning, and NEPA (Washington Office [WO]-210).Attachment 1, Planning and National Environmental Policy Act Considerations, explores these requirements in greater depth.

Off-Highway Vehicle (OHV) closures should rarely rely on the post-closure NEPA compliance discussed above.  43 CFR 8341.2 authorizes immediate closures, but state and field offices still have the obligation to explore other management strategies and alternatives before implementing closures and restrictions.  A manager intending to use the provisions of 43 CFR § 8341.2 to close or restrict areas to OHV use without completing NEPA in advance of the action should first consult with WO-210, Attn:  Branch Chief, Planning, to determine if the situation requiring correction constitutes an emergency action.  In most circumstances, managers are aware of OHV problems well in advance of confronting a “considerable adverse effect”, and can either take timely actions to reduce the impacts of OHV use or conduct a NEPA analysis with public participation before implementing a closure and restriction.

3. Duration and Scope of Temporary Closures or Restrictions

The BLM policy requires that temporary closures or restrictions must be 24 months or less in duration.  If the justification for a closure or restriction order has not been addressed within the 24-month period, a new temporary closure or restriction order must be established in accordance with this IM.  Temporary closures and restrictions should be implemented for the shortest time and in the smallest area necessary to protect resources, public health, and safety. 

4. Long-Term or Permanent Closures and Restrictions

Long-term or permanent closures and restrictions that are longer than 24 months in duration   must be accomplished in accordance with NEPA and land use planning requirements.  

5. Emergency Action

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 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. Thereafter, other than those actions that can be categorically excluded, the decision-maker must contact WO-210, Attn:  Branch Chief, Planning, to determine what subsequent actions are necessary.

The BLM NEPA handbook (H-1790-1, Sec. 2.3) defines the following actions as typical emergency actions:

• cleanup of a hazardous material spill;
• fire suppression activities related to ongoing wildland fires; and
• emergency stabilizations 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, parking, or other similar uses are not considered emergencies.  A Federal Register notice drafted for a temporary closure should not be referred to as an “emergency closure”.

6. Authorities

Please see Attachment 2, which includes a list of appropriate authorities available to temporarily close and restrict specified uses on public lands, the requirements for NEPA compliance, and the process for establishing closure and restriction orders. 

7. State and Washington Office Review

All temporary closure and restriction orders must be approved by the State Director before submission to the Washington Office, preferably 3 months in advance of the restriction.  Closure and restriction orders established under 43 CFR § 8364.1 or 43 CFR § 6302.19 require publication in the Federal Register. 

8. Format for Federal Register and Closure Notices

Attachment 3 provides Federal Register notice closure procedures, a template for Federal Register closure or restriction notices, and a briefing paper template.  Publication in the Federal Register is required prior to the effective date of the closure or restriction.

Closure and restriction orders submitted for review and approval must be accompanied by a briefing paper, maps, aerial, or other photos showing geographic areas and affected resources, along with other supporting documentation that would help reviewers understand the need for the action.  

9. Memorandum of Understanding (MOU) 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 be in compliance with the Federal Land Hunting, Fishing and Shooting Sports Roundtable MOU.  This MOU requires notification of the action to shooting organizations and alerts them to public comment opportunities.

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 need to be established in accordance with applicable authorities, and 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 Directorate, the Division of Decision Support, Planning, and NEPA, the Office of the Solicitor, the Office of Law Enforcement and Security, the Office of National Landscape Conservation System and Community Partnerships and the Division of Regulatory Affairs. 

Contact:  Any questions or concerns may be directed to Andy Tenney, Chief, Branch of Planning and Resources, Recreation and Visitor Services Division at 202-912-7094. 

Signed by:                                                                   Authenticated by:

Robert V. Abbey                                                        Robert M. Williams

Director                                                                       Division of IRM Governance,WO-560

3 Attachments

       1 - Planning and Environmental Policy Act Considerations (2 pp)

       2 - Authorities and Purposes for Temporary Closures, Recreation and NLCS (1p)

       3 - Template for Federal Register Closure Notices and (5 pp)