Proposed BLM Regulations -- Comments of Eureka County, Nev., DA's Office

Before the
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT

In re:
Federal Register, Nov. 7, 1996
(Vol. 6, No. 217)
Proposed Rules Page 57605-57621 )

TO: Bureau of Land Management
Administrative Record
Room 401 LS, 1849 C Street, NW
Washington, D.C. 20240
(Via Internet to WOComment
@WO.blm.gov. Attn: AC30)

COMMENTS
OF DISTRICT ATTORNEY OF EUREKA COUNTY,
a political subdivision of the State of Nevada

GENERAL COMMENTS

Through sad experience, users of the public lands in the West have learned that interpretations of regulations promulgated by the Bureau of Land Management (BLM) are inconsistent. Different BLM district managers interpret the rules differently. Interpretations that were adopted and followed change with time, leading to confusion and frustration. This has been particularly galling in those cases where statutes -- the Taylor Grazing Act, the Mining Law of 1866, the Mining law of 1872 are classic examples -- have granted public land users certain rights or privileges. Those rights or privileges have been abrogated by administrative regulations which the BLM bases upon one statute, the Federal Land Policy and Management Act, without reference to those other laws which are still in the statute books.

BLM's effort by regulation (Rangeland Reform '94) to do away with grazing preferences has been roundly criticized by the U.S. District Court of Wyoming in a decision now on appeal to the Tenth Circuit. Interior Secretary Babbitt's decision to ignore the mining laws also was challenged in court, and the Secretary was ordered to issue mining patents, as the laws provide. However, the bureaucracy has effectively driven small prospectors out of business by promulgating a rule requiring annual fees instead of assessment work, and the value of Western ranches dependent upon public land grazing has been more than decimated by regulations reducing livestock grazing for the benefit of feral horses and burros and other purposes.

Even at the highest levels the bureaucracy tends to ignore, or is unaware of the provisions of, statutes and the U.S. Constitution. Just one example is Secretary Babbitt's attempt, through Rangeland Reform '94, to expropriate water rights which Western ranchers hold pursuant to State laws, and take those rights, without compensation as a condition of continued -- albeit reduced -- grazing on the public lands. Another example is Secretary Babbitt's ill-advised effort in 1994 to overturn 130 years of statute and case law recognizing rights of way across the public lands (R.S. 2477 roads). Despite Congressional disapproval of his plans, Secretary Babbitt within the past 30 days has resumed his attack on those laws (by internal memorandum not subject to the rulemaking process).

When the Secretary of Interior ignores the Constitution and Acts of Congress, is it any surprise that district level bureaucrats, untrained in the law, constantly violate the rights of public lands users? And they do. And Western users of the public lands are forced to regard with a jaundiced eye every proposed rule offered by Interior agencies.

The West has learned to its sorrow that, if a BLM regulation can be interpreted unfavorably to the livestock and mining industries, it will be so interpreted. The maxim that "if anything can go wrong it will, and at the worst possible time" might have been coined to apply to enforcement of BLM regulations.

Therefore, in analyzing any proposed regulation, Westerners have learned to examine the words under a figurative microscope for the worst possible implications, since the worst possibilities materialize all too often. The comments offered hereafter are based on that premise.

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Proposed Rules Impinge Upon Constitutional Limitations

The proposed rules, if finally adopted, would impinge impermissibly on matters which are exclusively of state concern under the Tenth Amendment to the U.S. Constitution. See the U.S. Supreme Court decision in New York v. United States 505 U.S. , 120 L.Ed.2d 120, 112 S.Ct. 2408 (1992). The proposed rules indirectly would empower BLM agents to enforce state laws -- directly and by incorporating the state laws into the Code of Federal Regulations. Any violation of such incorporated state laws occurring on property managed by the BLM for the Federal Government would then be transformed into violation of Federal regulations. Such matters as speed limits, the number of headlights on a recreational vehicle, theft of the property of another private person, etc., traditionally have been left to the purview of the individual states. To the extent that they invade the separation of powers between the states and the national government recognized by the U.S. Constitution and its Tenth Amendment, the proposed rules would be void ab initio.

Further, the proposed regulations are Constitutionally sus-pect because they do not give adequate notice of the thousands of "state and local laws, regulations and ordinances," violation of which would become a Federal criminal offense. Without a specific list of the acts or omissions which are criminal, the Constitutional requirement of adequate notice is not met. The proposed regulations are unconstitutionally vague.

Proposed Rules Expand Authority Beyond FLPMA Delegation

FLPMA, the Federal Land Policy and Management Act, does grant some law enforcement power to the Secretary, and by extension, to the BLM. However, that authority is limited to ". . .regulations necessary to implement the provisions of this act with respect to the management, use and protection of the public lands . . ." 43 U.S.C. Sec.1733(a). The FLPMA penalties only apply to regulations that were promulgated pursuant to FLPMA for the purpose of protecting the public lands. The proposed regulations state that any violation of any regulation in Title 43 of the Code of Federal Regulations is a crime. While many Title 43 regulations are promulgated pursuant to FLPMA, many -- such as adopting local motor vehicle safety regulations -- are not. The BLM lacks authority to criminalize the activities governed by many of the regulations in 43 C.F.R. because they are not regulations issued pursuant to FLPMA. Simply claiming authority under FLPMA does not create such authority; the BLM must point to specific language authorizing a regulation it seeks to adopt.

The BLM cites Section 303 of FLPMA as authority for these proposed regulations; in fact the primary rulemaking authority in FLPMA, such as it is, is found in Section 310, and it applies to both Interior and Agriculture (BLM and Forest Service). Section 310 only authorizes civil penalties, not criminal penalties. 43 U.S.C. Sec. 1740.

Although the BLM claims that the proposed rules merely restate, and do not expand, existing rules, that is not the case. The new rules would expand BLM authority by:

1) Increasing the potential fine for a criminal act pursuant to FLPMA from $1,000 to $100,000;

2) Making all violations of Title 43 criminal; previously many of the Title 43 regulations were only enforceable civilly;

3) Making any violation of any regulation, ordinance or statute passed by a local, state or other federal entity a criminal violation (This provision requires a federalism assessment pursuant to Executive Order 12612 to analyze its effect on State-Federal relationships. No such assessment has been conducted);

4) Requiring restoration, revegetation and any other mitigation the BLM deems necessary even by a person engaged in authorized use of the public lands. The previous regulation required payment for damages, including rehabilitation and stabilization, by ". . . any person committing an unauthorized use . . . ." Emphasis supplied.

5) Substantially expanding the definition of "knowing and willful." Previously, the regulation punished knowing and willful violation of a regulation. The proposed regulation would make it a criminal violation to willfully and knowingly commit an act which is prohibited. There is a substantial difference. Under the previous language, a violation did not constitute a criminal act unless there was intent to violate the regulation (mens rea). The proposed regulation criminalizes the act, even if there was no mens rea -- no intent to commit a bad act.

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DETAILED COMMENTS

COMMENTS RE: "II. Background"

Pages 2 & 3 of proposal. Consolidation of all BLM criminal regulations in a single regulatory section would indeed simplify matters for users of BLM-managed lands, and such a consolidation is to be applauded. However, the consolidation should include ALL criminal rules, including rules governing minerals. Listing some rules in a consolidated rule, while not including others, will only lead to confusion on the part of resource users and law enforcement authorities. Further, it appears that the proposed consolidated rules are also expanded rules which would substantially increase the criminal jurisdiction of the BLM. Any such expansion of jurisdiction must be strictly based upon statutes enacted by Congress, not on any "wish list" of Interior Department bureaucrats. The proposed law enforcement regulations are an attempt to vastly and (in some cases) unlawfully expand the BLM's law enforcement authority by (i) increasing the number and types of actions which may result in violation of the law enforcement regulations, and (ii) substantially increasing the penalties for violation of those regulations.

COMMENTS RE; "III. Discussion of Proposed Rule"

Page 5 of proposal. The proposal claims:

"The statement that BLM will regulate activities on (or having a clear potential to affect) water bodies on or adjacent to BLM lands is not an attempt to establish ownership over those waters, but an attempt to clarify BLM's jurisdiction for protection of resources."

While the BLM may not intend to claim naked title to water bodies on or adjacent to BLM lands, the proposed rule would give the Federal agency the equivalent of equitable title. FLPMA does not give BLM any new or additional jurisdiction over waters. The Winters Doctrine provides for Federal use of water when lands are withdrawn from the public domain for Federal purposes. Otherwise, Federal jurisdiction over water does not exist. Jurisdiction over water passed to the various states at statehood. See, Utah Division of State Lands v. U.S., (the Utah Lake case), 482 U.S. 193, 96 L.Ed.2d 162, 107 S.Ct. 2318 (1987); Kansas v. Colorado, 206 U.S. 46, 51 L.Ed. 956, 27 S.Ct. 655 (1907); Pollard's Lessee v. Hagan (a.k.a. Pollard v. Hagan), 44 U.S. (3 Howard) 212, 11 L.Ed. (1845) and other U.S. Supreme Court cases limiting Federal jurisdiction over water. Where water is concerned, and where the Winters Doctrine does not apply, the Federal Government has no more authority over water than any other private owner of water rights, and must comply with state laws in order to establish those private water rights.

Further, and perhaps even more far-reaching in its potential consequences, the rule if finally adopted would amount to "taking" of private water rights and/or public water rights established pursuant to state law. Those rights were recognized by Congress in the Mining Act of 1866, and have been affirmed repeatedly by the U.S. Supreme Court. FLPMA by its own terms does not require or permit divestiture of any pre-existing rights. Adoption of the proposed rule would subject the BLM to the payment of vast amounts of just compensation to those private parties whose water rights would be diminished in value.

Page 6 of proposal. Common sense suggests an appropriate rule to determine when a person may destroy a wild horse or burro. Such a rule might be phrased:

"A wild horse or burro may be destroyed when:

"1. Its destruction is necessary to prevent undue pain to an individual animal or the spread of disease through a herd;

"2. It has moved onto private lands, and after five (5) days written notice, the BLM has not removed it from those lands;

"3. When its destruction is necessary to prevent undue damage to forage or water resources utilized by the animal."

With respect to the Page 6 comments on Service Animals, the exception also should encompass trained guard dogs used by persons with disabilities, the elderly, infirm, etc., who cannot reasonably use the public lands without some sort of protection. Likewise, persons with disabilities should be allowed to use animals (horses, mules, burros, llamas, etc.) for riding and packing. It would appear that the Americans With Disabilities Act (ADA) guarantees the rights of the disabled to avail themselves of such assistance.

COMMENTS RE "IV. Procedural Matters"

Pages 7 & 8 of proposed rule. Contrary to claims in the proposed rule, there are substantial impacts which existing Federal law or Executive Order require the BLM to address. Specifically:

National Environmental Policy Act. BLM's Finding of No Significant Impact (FONSI) is clearly erroneous. The proposed rule is replete with provisions which directly affect the quality of the human environment under section 102(2)(C) of the National Environmental Policy Act of 1969, 42 USC 4332(2)(C). The agency's proposed rules regarding bodies of water alone are sufficient to invoke NEPA study requirements without consideration of any of the other issues created by the document. Failure to consider the proposal as a major federal action with significant effects will lead to unnecessary litigation. The BLM should withdraw its FONSI and properly address the effects of the rule on the human environment.

Regulatory Flexibility Act. As with BLM's NEPA finding, the proposed rule cannot be FONSI'd. Again, the proposed water rules alone would impose new requirements or burdens upon numerous small entities (ranchers and small miners throughout the West). And again, the BLM must address these issues or risk unnecessary, interminable litigation.

Executive Order 12612. The proposed rule has a substantial, direct effect on the states, on the relationship between the Federal government and the states, and on the distribution of power and responsibilities among the various levels of government. See New York v. U.S., above cited. Without consideration of other issues, the proposal's claim of jurisdiction over waters would change existing Federal-state relationships in clear violation of the Tenth Amendment and a string of U.S. Supreme Court decisions dating back to the 1860s.

A Federalism Assessment pursuant to E.O. 12612 clearly is required, and once such an assessment is made and evaluated in light of Constitutional concerns, much of the proposed rule must be discarded.

Executive Order 12630. (Requiring "takings" assessment). The proposed rule would directly interfere with Constitutionally protected property rights and would result in a taking of private property. Assumption by the BLM of jurisdiction over water adjacent to or on the public domain will result in a "takings," as pointed out above.

While the Federal Government may have the power to effect such "takings," it must be prepared to pay fair market value for the property taken, or for the reduction in value if there is a partial takings of more than de minimis scope. The BLM must complete the takings assessment set forth in E.O. 12630, or once again face interminable litigation.

COMMENTS RE: Subpart 9260

Sec. 9260.2 The regulation should more clearly state that BLM's law enforcement personnel have no authority to enforce state law unless they are (i) deputized for specific purposes by the local sheriff or police chief who has such authority, or (2) such authority is expressly granted to BLM personnel by state (in our case Nevada's) legislatures. Only Federal Bureau of Investigation agents, and Drug Enforcement Administration agents in certain limited circumstances, have been granted such authority by the Nevada Legislature. The BLM cannot arrogate such authority unto itself by bureaucratic declaration in the Federal Register; such a delegation of authority must come from the sovereign state or the state's local law enforcement representatives, the county sheriff or police chief. See, New York v. United States, supra. If this Constitutional limitation on Federal authority is not spelled out in these regulations, it is a foregone conclusion that untrained BLM employees will attempt to expand their authority into areas beyond their competence. Unnecessary litigation will result.

The rule must expressly limit the activity of BLM law enforcement officers to the enforcement of legitimate Federal laws and regulations. No one disputes the right of Federal officers to enforce Federal law; although in many or most cases Federal agents would be well-advised to coordinate their efforts through the local enforcement agencies who know the territory and the people involved.

9260.4 The rule should define the term "law enforcement officers." If that term is intended to include BLM personnel generally, persons who are not graduates of a Federal law enforcement academy or institution, the proposed rule will lead to great mischief. State law enforcement officials in Eureka County, Nevada, are required to attend and graduate from the POST (Peace Officer Standards and Training) Academy, and to maintain proficiency with annual training. To loose upon the public as Federal law enforcement officers persons who do not have equivalent training would be a disservice to the public. The rule should clearly define "law enforcement officers" as BLM employees who have attended and graduated from an appropriate law enforcement academy, and who continue to maintain proficiency as law enforcement officers with annual training.

The rule in subsection 3 uses the term "reasonable grounds" for making arrests without a warrant. The proper legal term is "probable cause," and that language should be used. Further, the term "probable cause" should be inserted in subsections 4 and 5 to comport with Constitutional limitations upon search or seizure without warrant.

The general rule is that law enforcement officers may arrest without a warrant for misdemeanors committed in their presence, and without a warrant for felonies where probable cause exists; although there is a continuing Constitutional preference noted by the U.S. Supreme Court that warrants be obtained from a disinterested magistrate unless exigent circumstances prevent obtaining a warrant. And the term "exigent circumstances" is strictly limited by the courts.

The language in subsections 4 and 5 may be read to declare a broader scheme of warrantless arrest, one which is not permitted by the U.S. Constitution. The subsections should be rewritten to reflect that the BLM must recognize and honor Constitutional law governing arrest, search and seizure. Otherwise, unnecessary litigation surely will result; particularly if untrained or semi-trained BLM officers attempt to enforce such unlawful regulations.

9260.5. A BLM law enforcement officer does not have the authority to require any person to submit a written affidavit, as (a) avers, if the affidavit would be self-incriminatory. Involuntary self-incrimination is forbidden by the Constitution. The rule should accurately reflect Constitutional law. Likewise, vehicles may be stopped only if probable cause, or at the very least an articulable suspicion, exists that the operator is violating the law. (The exception for DUI roadblocks ordinarily would not apply to oil and gas investigations.) The motor vehicle exception to the warrant requirement will apply in some circumstances; but the rule as proposed is overbroad, hence not permitted by the Constitution.

9260.6. Definitions. The definitions suggested in the proposed rule provide multiple opportunities for mischief on the part of over-zealous or vindictive BLM officers. Among concerns:

Commercial photography "taking of still photographs for the purpose of commercial advertising" while exempting news filming. Many, perhaps most, still photographs are taken without knowledge on the part of the photographer at the time regardless of whether the product will be used for news purposes, editorial illustration or commercial illustration (advertising). The obvious intent is that some sort of license fee will be imposed on commercial use; but that use won't become evident until long after the photograph is taken.

Commercial recreation use. The proposed definition would include the Nevada Fish and Game Commission's auction sales of desert bighorn and elk tags as an activity "conducted by nonprofit groups when they are for business or financial gain." It also would include the deer contests sponsored by commercial entities throughout Nevada as activities "conducted by profit making organizations, even if that part of their activity that requires a permit is not profit making." In fact, clause (1) could be interpreted to cover all recreational uses -- hunting, fishing -- for which the Nevada Department of Fish and Game requires a license. If the BLM does not intend that the regulation be so broad, it should be rewritten to properly limit its scope.

Competitive use. This definition also appears to encompass deer contests and fishing derbies, trail rides which test time or endurance, and even impromptu contests between cowboys about how many calves they can brand in a day.

Highway, road or trail. The proposed definition requires that a highway, road or trail be "publicly maintained" and open to the public for "vehicular travel." This definition substantially limits the definition of highways as used in the Mining Law of 1866 (R.S. 2477) which is the authority for the existence of most roads across the public lands. The BLM's previous efforts to claim jurisdiction over R.S. 2477 roads created a firestorm of protest in the West. It is well-established law that such roads may be maintained by use only, and that they do not have to be for "vehicular travel." Horse trails and footpaths qualify as R.S. 2477 roads, and this proposed definition clearly is an attempt to create more "roadless" areas in defiance of the law passed by Congress in 1866. That law granted rights of way for R.S. 2477 roads, and the BLM does not have any authority to rescind those grants by regulatory definition. The proposed definition must be stricken.

Law enforcement officer. The proposed regulation does not provide that a BLM law enforcement officer must have training in law enforcement. It would be disastrous to grant law enforcement authority to the average, untrained BLM bureaucrat. The regulation must limit the definition of law enforcement officer to BLM employees who have completed a course of training equivalent to Nevada's Peace Officer Standards and Training program (POST), and who have maintained current proficiency through periodic retraining.

Public disturbance. The operative language, "any activity that interferes with the public's enjoyment of BLM land," is so vague as to be Constitutionally suspect. That which is deemed to be interference by one segment of the public may not in any way interfere with another, or larger, public. This definition could be applied to riding horseback on trails where backpackers feel that only backpackers should be allowed. It could be interpreted to apply to use of streams by livestock to the discomfiture of fishermen or hikers. No reasonable person could read this regulation and know what conduct is proscribed. Unless the definition can be made more specific, it must be withdrawn.

9260.7. The scope of the proposed regulations is Constitutionally overbroad as it purports to extend BLM authority to water bodies on or adjacent to BLM lands. Control of water is a province of State governments and private property owners, not the BLM. The BLM has no statutory authority to implement such a regulation; if FLPMA is intended as authority, it is obvious that BLM is misreading and overextending FLPMA's grant of powers. Even if FLPMA be read to provide such authority, FLPMA could not give the BLM power to ignore Constitutional mandates. Any exercise of authority over water bodies not owned by the Federal government would implicate the "takings" clause and make BLM liable for damage to private property rights.

COMMENTS RE: Subpart 9262 Rules of Conduct

9262.4. Subsection (a)(3) would, among other prohibited acts, prohibit disposal of household trash, refuse or waste. As proposed, the regulation apparently would forbid the burning or burying of household waste by backpackers and recreational vehicle users. Burning or burying of such waste is the traditional -- and most environmentally effective -- method of disposing of such waste. It is all very well to subscribe to the maxim "pack it in, pack it out," but it is totally impractical to do that in the case of extended stays on the public lands. It makes sense to require proper disposal of household trash, refuse or waste; it makes no sense at all to forbid such disposal. Such a rule would be particularly anathema to disabled persons and as such would violate the ADA.

Subsection (a)(4) forbids pollution or contamination of water on BLM lands. As written, pollution or contamination could be interpreted to include the use of water by livestock since livestock not uncommonly defecate or urinate while drinking. The regulations should clearly define what activities constitute pollution or contamination, and should contain reasonable exceptions for livestock use.

9262.6. The BLM does not have any authority to forbid the use of R.S. 2477 roads. The BLM may petition state or local authorities to forbid the use of such roads pursuant to state or local laws and ordinances during periods of extreme fire danger. This proposed rule could be used to indirectly extend BLM jurisdiction over R.S. 2477 roads; just as the BLM previously has attempted to do.

9262.7. Subsection (b)(s) would forbid the discharge of firearms across a body of water adjacent to public lands. As written, that proposal appears to forbid all waterfowl hunting, since waterfowl hunting necessarily consists of shooting across bodies of water. The rule should contain a specific exception allowing waterfowl hunting. Also, the rule should be rewritten to be clearly inapplicable to bodies of water which merely adjoin public lands.

9262.8. Subsections (a)(1) and (a)(3) apparently would forbid local authorities from starting backfires to control wildfire, or from disposing of accumulated slash, brush or grass by controlled burns. Such activities traditionally have been the province of local governments and users of the public lands, and BLM regulations forbidding such activities are unnecessary and improper; not to mention the fire hazard they would impose on private property adjoining the public lands.

Subsection (b)(4) requires that users of the public lands obey state and local laws, regulations and ordinances concerning fire prevention. If those activities are forbidden by state and local laws, regulations and ordinances, there is no need for the BLM to "make a Federal offense" out of any violation. State and local agencies have jurisdiction over violations on the public lands, and are entirely capable of meting out any necessary punishment to violators. The proposed regulation does nothing more than attempt to expand Federal jurisdiction into areas which traditionally have been the province of state and local governments. Again, this violates the spirit, if not the letter, of New York v. U.S..

COMMENTS RE: Subpart 9263

9263.1. Subsection (a)(1) requires that uses of the public lands obey state and local laws, regulations and ordinances relating to the use, standards, registration, operation, and inspection of motorized vehicles and trailers. Here too, as with 9263.8(b)(4), if those matters are controlled by state and local laws, regulations and ordinances, there is no need for the BLM to "make a Federal offense" out of any violations. State and local agencies have jurisdiction over motor vehicle violations which occur on the public lands. There is no need for duplicative Federal regulations which convert state and local laws into Federal violations. The proposed regulation does nothing more than attempt to expand Federal jurisdiction into areas which traditionally have been the province of state and local governments. See, New York v. U.S.

Subsection (a)(8) could be interpreted by untrained BLM officers to authorize BLM control of R.S. 2477 roads. Control of such roads is strictly the province of local government. BLM has no authority over such roads since by definition the Federal government has ceded R.S. 2477 rights of way to the public, giving up all Federal interest therein. The proposed rule may be misused to expand BLM's concept of roadless or wilderness areas beyond that authorized by applicable statutes.

Subsections (b)(1), (2), (3) and (4) are already covered by State and local laws and ordinances. Again, there is no need to "make a Federal case" out of any violations. There is no need for BLM to regulate or enforce in these areas. These matters are best left to state and local governments which have the benefit of years of enforcement experience in those areas. See, New York v. U.S.

9263.2. The entire subject matter of this section -- standards for motor vehicles -- already is covered by State and local laws and ordinances. Here as well, there is no need to "make a Federal case" out of any resulting misdemeanor violations. There is no need for BLM to regulate or enforce in these areas. These matters are best left to state and local governments to utilize their years of enforcement experience in those areas. See, New York v. U.S.

Subsection (d) requires seat belts for each front seat passenger. Many older utility vehicles and pickup trucks, still useful and still in use, are not equipped with seat belts. Further, in certain off-road situations safety may contra-indicate use of seat belts (potential sidehill rollovers, for example). State and local laws usually provide exemptions for such circumstances. Again, the subject matter is best left to the jurisdiction of state and local laws. If the BLM is to regulate in such matters, it should provide for reasonable exceptions for older vehicles and situations where seat belt use would adversely affect safety.

COMMENTS RE: Subpart 9264 - 9269

9264.1. The section lists activities considered commercial for which a BLM permit will be required. Some of the activities listed should not require any permit; the uses should be available to the public without restriction. The permit requirement seems particularly inappropriate for:

(a) Use of a right of way. The regulation should expressly exempt R.S. 2477 roads, over which BLM has no authority. If no express exception is provided it is a foregone conclusion that some local BLM bureaucrats can be expected to attempt to claim jurisdiction over such roads;

(d) Use of easements. Likewise, where a grant of easement has vested under State or Federal law, the BLM has no jurisdiction over that easement. Without express exception local BLM bureaucrats can be expected to attempt to claim jurisdiction and authority;

(e) Special recreation uses. As noted previously, such a permit requirement could result in a demand by BLM for permits for such traditional -- and innocuous -- activities as biggest deer contests and the like, as well as for a host of other recreational activities which have no discernible impact on the public lands where they occur;

(k) Road building. Again, if there has been a grant of right of way or easement, a grant which has vested, BLM has no authority over that privately-owned property interest. The regulation should be strictly limited to prevent inappropriate attempts to expand BLM authority;

(q) Developing canals and ditches. While the BLM has jurisdiction under FLPMA over new canals and ditches, it has no power over canal and ditch rights of way which vested prior to 1976 under the mining laws. The regulation should be strictly limited to forbid inappropriate attempts to expand BLM authority over private property interests.

9264.50. There is no justification for requiring permits for the use of trailers, motor homes or tents on public lands outside of improved campsites for which a reasonable use fee could be imposed. Many recreationists in Nevada use the public lands to "get away from it all," and a permit requirement for such usage is particularly onerous. The regulation should exempt such recreational uses.

9264.60. There are many recreational activities which by strict definition would be considered "competitive" which should be exempt from permit requirements. Examples: cross-country runs, cross-country trail rides, small snowmobile competitions, crosscountry ski competitions, fishing derbies, big deer contests, etc. The regulation should be revised to require permits only for large scale activities with a very real potential to adversely affect the public lands. The proposed regulation appears to be a thinly-disguised revenue enhancement measure.

9264.80. The provisions of subsection (a)(4) should be revised to guarantee a user's right to remove range improvements which he had installed on BLM lands. Otherwise, this subsection could be utilized to effect an unconstitutional taking without due process of law.

Subsection (a)(5) would prevent utilization of backfires for wildfire suppression without first obtaining BLM authorization. In an emergency, when communication with local BLM officials may be chancy at best, the proposed regulation makes no sense whatsoever.

9264.90. Subsection (a)(1) could hamper wildfire suppression when communication with local BLM officials is inconvenient or impossible.

Subsection (a)(9) appears to forbid a permittee from using firewood obtained under free use permit to warn the other members of his family, although he could use such firewood to warm himself!

Subsection (b)(2) appears to be another proposal to adopt State laws as BLM regulation. If such State laws exist, enforcement by the State should be sufficient. Again, there is no need to "make a Federal case" out of State/local misdemeanors.

9265.1. Subsection (c) authorizes collection from the public lands of "water resources for personal consumption." The regulation could be interpreted to prohibit the collection and diversion of waters from the public lands for irrigation and stockwatering purposes, even if such collection and diversion has vested under State law and concomitant decisions of the U.S. Supreme Court. If the regulation is not limited, it is all but certain that BLM bureaucrats will attempt to prohibit such appropriations and diversions. That would destroy all the value of many ranching operations which, pursuant to State law, have appropriated water from the public lands for livestock watering and irrigation. This too would result in unconstitutional takings without due process of law.

9265.20. Proposed conditions under which a wild horse or burro could be destroyed have been set forth above. Subsection (a)(3) should be revised to incorporate those proposals.

9265.41. Regulation of hunting, trapping, or fishing has been a State prerogative for more than 200 years. Use of the public lands for such purposes should be free of Federal interference. If any control is required, State fish and game departments are competent to provide conservation management. The proposed regulation should be discarded as an unconstitutional usurpation of states' rights. See, New York v. U.S..

9265.42. Again, there is no need, nor any right, to make a Federal case out of violation of State and local fish, wildlife and plant resource laws. If State and local laws exist, the BLM should recuse itself from involvement in enforcement.

9265.50. The regulation would prohibit arrow and spear point collection, even in those instances when the points are not found "in site" for archaeological, historic or scientific purposes. While there is justification for forbidding removal of such resources from such sites, there is nothing to be gained from denying hikers and other recreationists the opportunity to collect "out of site" resources discovered during their travels.

9265.70. This proposed regulation could be disastrous for Western agriculture and mining. It does not define the term "water resource owned by or reserved to the United States and administered by BLM." If the bureaucracy should "reserve" by executive fiat all waters arising on or crossing public lands, the BLM would complete its stranglehold on the West. Some Department of Interior personnel maintain that all water in the lands annexed to the United States pursuant to the Treaty of Guadalupe-Hidalgo was reserved for Federal use at that time. The proposed regulation potentially could invalidate 150 years of Western appropriative water law, and cause the region's economy to implode. The regulation must define the term "owned by or reserved to," in detail, so the West knows just what the BLM intends. If the intentions are less than honorable, the proposal must be discarded.

9267.1. Subsection (b)(a) may be interpreted as authorizing the BLM to prevent maintenance of existing R.S. 2477 roads in wilderness areas. As noted previously, once an R.S. 2477 grant of right of way has been accepted, the Federal government has given up jurisdiction and ownership, the same as when the Federal government grants a patent. The regulation should clearly exempt R.S. 2477 roads from its scope.

Subsection (d) would make it unlawful to "drop or pick up any material, supplies, or person by means of aircraft, including a helicopter . . . or parachute." The proposed regulation would make it unlawful to drop fire-retardant chemicals from airplane or helicopter, to use helicopters to deliver or pick up fire crews, to use airplanes and parachutes to deliver smoke jumpers, to use helicopters for rescue even if the helicopter merely hovers, to deliver any supplies or medical equipment by helicopter or parachute, etc.

The proposed regulation should be revised to provide exceptions for firefighting, medical, and other emergency purposes.

Subsection (g) would prohibit "any competitive use." As noted above, the regulation would prohibit in wilderness areas such activities as fishing derbies, big deer contests, competitive trail rides against time, competitive cross-country hiking and running against time, etc. Such activities should be permitted.

9268.50. The prohibition on operating a motorized vehicle in a primitive area may not be applied to existing R.S. 2477 roads, or to the use of motor vehicles where necessary to maintain vested canal, ditch or road rights of way. The proposed regulation should delineate such exceptions or provide for just compensation for any taking which results from such prohibition.

9269.2. Again, any closure or restriction of use may not be applied to existing R.S. 2477 roads or vested canal, ditch or road rights of way without just compensation first being secured as required by the U.S. Constitution.

RESPECTFULLY SUBMITTED this 20th day of February, 1997.

EUREKA COUNTY DISTRICT ATTORNEY

William E. Schaeffer, District Attorney

By

Zane Stanley Miles, Chief Deputy

cc: Board of Eureka County Commissioners
Eureka County Public Lands Advisory Commission
Other interested parties