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
July 26, 2016
In Reply Refer To:
8340, 8341, 8342 (250) P
EMS TRANSMISSION 08/02/2016
Instruction Memorandum No. 2016-128
Expires: 09/30/2019
To: All Washington Office and Field Office Officials
Attention: State, District, and Field Office Program Leads including Recreation, National Landscape Conservation System, and Planning
From: Acting Assistant Director, Resources and Planning
Subject: Requirements for Processing and Approving Temporary Public Land Closure and Restriction Orders
Program Areas: Recreation, National Landscape Conservation System, and Planning,
Purpose: This Instruction Memorandum (IM) establishes policy and procedures related to processing, reviewing, and implementing temporary closures and restrictions on Bureau of Land Management (BLM)-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. Closures and Restriction Orders Using 43 CFR subpart 8364 (Closures and Restrictions)
Closure and restriction orders are enacted at the discretion of the authorized officer to 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. Closure and restriction orders enacted under this authority should generally be limited to 24 months or less; however, occasionally situations may require longer and/or iterative temporary closures or restrictions. Long-term (more than 24 months) closures and restrictions should be resolved through appropriate planning and National Environmental Policy Act (NEPA) compliance with Supplementary Rules issued to allow for enforcement of the decision..
2. Supplementary Rules
Supplementary rules (see 43 CFR 8365.1-6) should be promulgated to implement long-term closures or use restrictions in conformance with the decisions in the applicable Land Use Plan. Use restrictions set forth in supplementary rules which are necessary to achieve the goals and objectives of a Recreation Management Area as set forth in the applicable land use plan, may be considered implementation level decisions and, if appropriate, may be analyzed through an implementation or activity level plan and associated NEPA analysis. See Land Use Planning Handbook, H-1601-1, Appx. C. at 16-17; Planning for Recreation and Visitor Services Handbook 8320-1, I-10.
3. Off-Highway Vehicle Closures Mandated by 43 CFR subpart 8341 (Conditions of Use)
Under 43 CFR 8341.2(a), the 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 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 6 on NEPA compliance.
Managers are encouraged to take action to correct developing OHV problems well in advance of confronting the “considerable adverse effects” trigger making the closure requirement mandatory 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 public lands under this authority. For additional guidance on OHV closures refer to M-1626 Travel and Transportation and Manual.
4. National Trails System, Wild and Scenic Rivers System, and Wilderness
5. Duration and Scope of Closures and Restrictions
Closures and restrictions should be implemented for the shortest time and in the smallest area necessary to protect resources, public health, and safety. Temporary closures and restrictions should generally be limited to 24 months or less in duration. This policy is necessary to ensure that closures and restrictions are done with appropriate planning and public involvement and with a defined time frame for resolution. If there are extenuating circumstances that do not allow the temporary closure to end within 24 months, a new closure or restriction order must be issued in accordance with this IM.
In circumstances where a manager knows in advance that a temporary closure or restriction must remain in effect for 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 extended 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 or restrictions established before the issuance of this policy. In such circumstances, field offices should consult with the WO for further direction.
6. 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 or restriction decisions adopted in a completed Resource Management Plan).
A Determination of NEPA Adequacy can also be used to document that the action has been adequately covered in an existing NEPA document (such as an RMP).
Emergency Actions
Emergencies or unforeseen events may require immediate action to avoid unacceptable health, safety, natural resources or property consequences. The following actions are typically considered emergency actions, provided they are immediately taken to protect public health and safety or important resources (H-1790-1, Section 2.3):
- Cleanup of an oil spill or hazardous substance release.
- Fire suppression activities related to ongoing wildland fires.
- Emergency stabilization actions following wildland fires or other disasters
In the event of an emergency, an immediate closure or restriction of uses of the public lands may be necessary to prevent or reduce risk to public health or safety, property, or important resources.
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 emergencies. Please note that Federal Register Notice drafted to promulgate a temporary closure or restriction should not be referred to as an “emergency closure.” Closures or restrictions using the 43 CFR 8364.1 authority may be addressing an emergency situation, but the agency action remains a “closure.” The same 30 day appeal period applies regardless of the situation the closure seeks to resolve.
The Council on Environmental Quality 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 from NEPA compliance, the decision maker must contact the Branch Chief, Planning and NEPA (WO-210) to determine how NEPA requirements will be met.
7. Authorities
Attachment 1 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 temporary closure order.
8. 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, or section 8341.2 must be approved by the state director before submission to the WO. Once a manager decides to temporarily close areas 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, and 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.
9. Procedures and Effective Date of Federal Register Notices
A closure or restriction order is appealable to the Interior Board of Land Appeals (IBLA) and is not a “full force and effect” decision as it will not be effective until 30 days after the date of publication in the Federal Register. See 43 CFR 4.21(a)(1); 43 CFR 4.411(a) (setting forth the Rules of Procedure for Appeals to the IBLA). As such, BLM must publish notice of a closure or restriction order at least 30 days in advance of the date that it intends for the order to be effective. It is suggested that the BLM field office contact the Office of the Solicitor for further guidance on this issue.
See Attachments 1 and 2 for more information on the topic of effective dates and publication requirements, and for Federal Register Notice procedures for closure and restriction orders.
10. Memorandum of Understanding Obligations and Coordination with the Federal Land Hunting, Fishing, and Shooting Sports Roundtable
Temporary 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 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, and the Division of Regulatory Affairs.
Contact: Any questions or concerns may be directed to Dorothy Morgan, Recreation and Visitor Services Division (WO-250) at 202-912-7412, or by e-mail at dmorgan@blm.gov.
Signed by: Authenticated by:
Nancy Haug Robert M. Williams
Acting, Assistant Director Division of IT Policy and Planning,WO-870
Resources and Planning
2 Attachments
2 - Closure and Restriction Order Notice Procedures and Template (7 pp)