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John Stewart

Standing is ....

You, the recreationist, have an opportunity to participate in the discussions and make our opinions known to the planning team about routes (roads and trails) that need to be considered for developing the alternatives to the Proposed Action. Participation establishes “standing”.

 

The first step in the NEPA process is “Scoping”. This is the time for the public to submit their comments. These comments will be used to develop the alternatives. One of the alternatives will be the final preferred action in the Draft Environmental Impact Statement. These comments form the basis of the “administrative record”.

Just commenting during the “scoping” period is not enough. You will have two additional opportunities to provide comments. However, after the scoping period, new information is difficult to enter into the administrative record.

For example, your favorite trail is known as “Broken Winch Trail”. You have been using it for years and the proposed action does not recognize it as a trail to be included in the designated route system. During the scoping period, the agency is asking for comments on a proposed action. Now is the time for you to tell the agency about “Broken Winch Trail” and how it is an important recreation opportunity as it leads to your summer fishing hole, your fall hunting camp, and a provides a technical trail challenge for your recreation pleasure. That is the type of information the agency is soliciting.

Identify the trail and why it is important and submit those comments to the planning team. The agency planning team will review your comments along with others submitted. From these comments, they will develop a Draft EIS complete with alternatives and a preferred alternative. And, for each alternative, consequences of that action will be analyzed.

You, the recreationist, have an opportunity to continue participating in the discussions and make our opinions known. During your review of the Draft EIS, you find “Broken Winch Trail” has not been identified as part of the final proposed action. Now is the time for you to refer to your original comments submitted during scoping and submit them again, stressing how very important that trail is to you. You can provide additional information to support your case.

Again, the agency will review all comments received and adjust their preferred alternative. This time, the agency will send out a Final EIS for public comment. During you review of the Final EIS, you find “Broken Winch Trail” has not been identified as part of the final action. Now is the time for you to refer to your original comments submitted during scoping and your comments submitted to the Draft EIS and let the agency know you still consider “Broken Winch Trail” as an important recreation opportunity. You can provide additional information to support your case.

Again, the agency will review all comments received and adjust their final preferred alternative and issue a Record of Decision. During your review of the Record of Decision, you find that “Broken Winch Trail” is still not included.

Now, you have “standing” -- you have participated in the process -- and you can show “harm” -- your recreation opportunity is not being addressed. You can appeal the decision and get ready to file that lawsuit.

You have “standing” because you participated in all parts of the discussion. You have identified something of importance to you and provided documentation as to why it is important.

The final decision does not include what is important to you and you are now “harmed” because “Broken Winch Trail” is being closed and you will be prohibited from using it.

You have participated in the discussions. You have provided documentation. The administrative decision is not in your favor. Perhaps the judge will review the facts and rule in your favor........

 

Now is your opportunity to be part of the decision process.

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John Stewart

Trail Party Voters Guide Available

The Trail Party has produced (and is growing) a Voter’s Guide to give us on the ground advice about candidates who do or do not support our access to motorized recreational opportunities.  Founded by Don Amador, noted recreation advocate with 20 years of land-use experience.

You can get voter information or add to the list of candidates/measures by checking this out. http://trailpartyvotersguide.blogspot.com/
You can email directly with Don Amador at This email address is being protected from spambots. You need JavaScript enabled to view it.

Make sure you’re an ORV  – Off Road Voter – on Nov. 2nd.  Join the Trail Party and keep up with Don’s blog.

Del Albright
Recreation Advocate; Trail Ambassador; Off Road Voter

 

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John Stewart

To litigate, or not to litigate, that is the question

The OHV Program is user funded (self-funded) and receives no general fund supporting revenue.

The 2013 Fiscal Year is the fourth consecutive year where substantial funding has been diverted from the OHV Trust Fund to other sources.  Since 1974, approximately $188 million has been diverted from the OHV Trust Fund to the General Fund and State Parks and Recreation Fund.  Of that total amount, $129 million has been diverted from the self-funded OHV Trust Fund within the last four state budget cycles. 

The State of California government structure follows the federal model with three branches of government: legislative, administrative and judicial.  Within that structure, the legislative branch begins with a bill submitted to the Assembly or State Senate and converts that into a law which is signed by the governor.

The Administrative branch carries out the actions described in the law.  Frequently, the administrative branch is required to determine the legislative intent.

The Judicial branch will review objections (lawsuits) to actions brought forward that may be in violation of other statute, state constitution, initiative of the people, or legislative intent. 

One branch cannot engage in “...the powers vested in another branch...” - “separation of powers”.

The legislature "appropriates" money to the agencies for specific program purposes. The state agencies cannot spend money on programs not authorized by the legislature through an “appropriation”.  The agency cannot re-program the legislature appropriated funding without approval of the legislature.

With each Budget Year, the Legislature provides Assembly and Senate Bills that are incorporated into the final budget submitted to the Governor for signature.  The final budget identifies legislative approved appropriations (authorizations) for the administrative agency to spend on approved programs.

As previously noted, the legislature has diverted funds from the OHV Trust Fund to other sources.  The legality of this action has been subject to debate and a lawsuit filed in 1995.

State law does allow for “loans” from one agency to another as enacted by the legislature.  Typically, the “loans” are to be repaid within two fiscal years and may or may not have a repayment date.  Specific to the OHV Trust Fund, such loans are required by law to be repaid within two fiscal years or "...when the program becomes encumbered".

However, the legislature initiates the "loan" and repayment provisions are not enforceable.

The use of the caveat "...when the program becomes encumbered" is interesting.

Basically, an agency cannot submit a budget that is "encumbered"; meaning in a deficient.  

The real issue lies with the use of appropriated funds for the intended legislative purpose.  That is an issue the court has jurisdiction over.  That does not fall under separation of powers doctrine.  There is an exception to the constitutional prohibition that prevents the court from interfering with the budget or ordering the legislature to appropriate money outside of the purposes for which an appropriation was reserved, i.e. to pay back a loan.  “As long as that body does not exceed its powers, and its judgment is not influenced by corruption, a court cannot substitute its judgment for that of the Legislature.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580).

The below table displays details about the eleven “takings” identified over the life of the OHV Program.

Budget YearsTransfer Amount
1974$1,500,000
1982$8,500,000
1983$13,000,000
1990$3,000,000
1992$10,244,000
1993$16,046,000
1995$4,522,000
2009$90,000,000
2010$22,000,000
2011$10,000,000
2012$7,000,000

In 1995, litigation was filed to recover some of the funding ($22.5 million) transferred from the OHV Trust Fund to the General Fund. 

These transfers were determined to be a loan and subject to state law for tracking and repayment.

Existing records indicate that two lawsuits were filed and combined into a single lawsuit.  The initial ruling was in favor of the plaintiffs and the State was ordered to repay the loans. This case did involve funds that were transferred directly from the OHV Trust Funds along with funds that were transferred from the Motor Vehicle Use Fund to the General Fund in lieu of transferring to the OHV Trust Fund.

On appeal in 1999, the decision in favor of the plaintiffs was reversed.  This is an unpublished decision out of the 2nd Appellate Court.  It is a valid decision; however, as it is unpublished, it cannot be used as precedence in other cases.  However, the legal arguments supporting overturning the original decision underscore the legal issues faced to prevail in a lawsuit concerning the state transfer of funding from the OHV Trust Fund.

The critical legal argument involves the "separation of powers" doctrine.  Under that doctrine, the Court cannot compel the legislature to fund a program that is not mandated by constitution or initiative from the people.  Note: an “initiative from the people” carries a higher level of protection than “mandated by constitution”.

The only constitutionally protected program is one approved by initiative because the constitution says that initiative funding cannot be overturned by the legislature unless the initiative specifically permits the legislature to do so.

In fact, "[t]he people's reserved power of initiative is greater than the power of the legislative body. The latter may not bind future Legislatures [citation], but by constitutional and charter mandate, unless an initiative measure expressly provides otherwise, an initiative measure may be amended or repealed only by the electorate. Thus, through exercise of the initiative power the people may bind future legislative bodies other than the people themselves." (Shaw supra at pp. 715-716.”)  See: Shaw v People, ex rel. Chiang (2009) 175 Cal.App.4th 577

In other words the only express constitutional protection is the initiative process which explicitly overcomes the constitutional separation of powers doctrine in California. Other constitutional protections like the right to an education to not overcome the idea that the court cannot interfere with the budgetary process due to the constitutionally mandated doctrine of the separation of powers.

This is underscored by several court decisions, one of which is County of San Diego vs State (2008) 164 Cal App 4th 580.  In this decision, it was argued that a court could not order the repayment of a loan from a special fund unless the Legislature appropriates money in the budget for the purpose of making the repayment.  Under Civil Code Section 3523, “...for every wrong there is a remedy.... However, statute does not permit a judicial remedy when the remedy is with legislation”.

The court concluded that when the legislature fails to make an appropriation, the court cannot remedy that action.  It is a discretion specially confided by the Constitution to the body possessing the power of taxation.

Most of the takings have occurred before money related to OHV use was transferred from the Motor Vehicle Fuel Account to the OHV Trust Fund. This was an apparent move by the legislature to avoid being accused of taking money from a special fund, or more specifically a “trust fund”.  This section from the Revenue and Taxation Code, Section 8352 provides the justification for the transfer. 

Subject to the provisions of any budget bill heretofore or hereafter enacted, the money deposited to the credit of the Motor Vehicle Fuel Account is hereby appropriated for expenditure, allocation, or transfer as provided in this chapter.

This gives the legislature the power to take money  from the Motor Vehicle Fuel Account before it is transferred to any of the special funds where it is appropriated in this chapter. This provision has been in place ever since the Motor Vehicle Fuel Account was created.

The OHV Program is a legislative mandate without the constitution or initiative protection.

Hence, a legal case can be brought forward and prevail.  However, the courts cannot compel the legislature to restore the funding due to the separation of powers doctrine.

According to State Law, the transfers (loans) are subject to return/repayment within two fiscal years or at a time when the program becomes encumbered and cannot meet obligations.  To date, the transfers of OHV Trust Funds have been legislative directed and only one (the Department of Fish and Game loan for $3 million) has been repaid. And, the OHV Program has not become encumbered and unable to meet its obligations.

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John Stewart

Top Five Recreation Issues - 2011

As we move forward, the below list of five items represents my view of issues that will be major factors in the legal, legislative, and administrative processes affecting recreation opportunities.

  1. Special Recreation Permits. A tragic accident and budget issues have focused attention on Special Recreation Permits.  Citing public safety and need to recover costs associated with issuing permits, Forest Service and BLM are closely reviewing permit applications.  The increased review time will translate to cost recovery where the agency will increase the cost of the permit which will increase the cost of events.  And, increased requirements on events could eliminate many smaller events.
  2. Forest Service Travel Management. Over the past five years, the Forest Service has developed a sustainable system of routes to support the needs of Forest visitors with each Forest issuing their own Motor Vehicle Use Map.  While the Forests are busy implementing Travel Management Sub-Part B, they are beginning to plan for Travel Management Sub-Part A.  Under Sub-Part A, each Forest will determine the minimum system of routes necessary to support Forest management.  Your continued involvement with travel management plans is critical to ensure that important recreation opportunities are not lost during the work to define a minimum system of routes.
  3. Image. Motorized recreation continues to be marked as “destroyers of the environment” and a danger to public safety.  Image does affect land management decisions when protection of resources and public safety are considered.  Our image is projected to the public though advertising and our own web sites.
  4. Coalition Building. Motorized recreation is characterized by many facets, each with its own set of advocates.  We need to build a coalition of the different facets to develop strategy and set priorities for addressing issues common to all.  While we may recreate in different manners, we are bound by two common elements.  We use a motorized vehicle and we need access to a place for recreation.
  5. Membership and Involvement. Increasing membership of organizations and involvement of recreationists is important.  As we move into the future, we will be involved with change.  The sport is changing.  Opportunities are changing.  And, regulations are changing.  Membership and involvement are key ingredients to ensuring recreation remains a viable opportunity.

The only constant is change.  We are in the midst of rapid and massive change that will have a lasting impact on recreation.  Now is the time to become involved.  Membership in many organizations is falling off.  Now is the time to examine your priorities and make your voice be heard.

I encourage everyone to become active and involved.  Join a local club, state/regional association, and a national organization.  Agencies will be dealing with reduced budget and staff.  Working with the agency to replace the reduced budget and staff will help protect access to recreation opportunities.

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John Stewart

Is the clock ticking?

When I use the term "uninformed recreationist", I am referring to the guy that is gung-ho on going anywhere at anytime without a care in the world for what he is doing. Someone that has the attitude that they "own" the land and their rights comes first, above all.

An "enlightened recreationist" realizes that the land and its resources are the wealth of the nation and belong to the people of the nation. They accept that it is not about going anywhere at anytime without a care in the world for what he is doing.

They also realize that routes are the key to access and natural resources are the reason for access. Routes were constructed to access the forests for the lumber to build homes.  Routes were constructed to mines where minerals and ore were extracted to provide raw materials to manufacture the goods used in our daily lives.  Routes were constructed to access lands used for grazing of livestock that helps feed the people.

When you look at history, there was a period in the late 1800s that was a low point in caring for the land and resources. Logging, mining and grazing practices of that era were not a shining example of efficiency. There was plenty of waste. Extraction was king.  Preservation was not an issue.  Recreation was not a part of the equation.  Survival and profits were the primary concerns.

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