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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — September 1978


Protecting the Public Lands: BLM Stuck in Low Gear on Regulating Use of Off-Road Vehicles

Administrators of the federal government's public lands are currently facing a major problem in attempting to resolve the conflict between the demand for recreational space for "off-road vehicles" (ORVs), such as trail bikes, dune buggies, and snowmobiles, and the need to protect the lands from serious environmental damage that can be caused by such machines. Recently, the Department of the Interior issued a final environmental impact statement (EIS) on the use of Interior lands by ORVs,1 and the Bureau of Land Management (BLM), as proprietor of 474 million acres of federal lands on which half the nation's ORV activity takes place,2 proposed regulations for the designation of public lands for ORV usage.3 This is the second attempt by the Interior Department and BLM to resolve this problem and, like the first, it can only be characterized as one of excessive disregard for the immediacy of the environmental damage.

The use of ORVs has increased dramatically over the past decade. From relative obscurity ORV usage has mushroomed to the point where perhaps a quarter of the population, using 10 million vehicles, is now taking part in ORV activities.4 The ORV phenomenon, in which riders escape the tedium and stresses of urban life through motorized exploration of wild open spaces, is clearly riding the crest of the current popularity for all forms of outdoor recreation.

Supreme Court Strikes New Balance in Federal-State Tension Over Western Water Rights

The authority of federal agencies to acquire, use, or distribute surface waters in the western states was dealt a dramatic setback by the United States Supreme Court on July 3. In California v. United States1 the Court read §8 of the Reclamation Act of 19022 to require federal agencies constructing reclamation projects to comply with state-imposed limitations on the use of project waters except where such limitations are inconsistent with the statutory objectives of the project. The Court thereby threw a major roadblock in the path of the Bureau of Reclamation's proposed New Melones Dam. On the same day, in United States v. New Mexico,3 the Court declared that federal reservations of land from the public domain do not by implication include reservations of waters flowing through or alongside such lands, except for the minimum amount of water essential to the specific purposes for which the land was reserved. The upshot in that case was to deny the United States Forest Service's assertion of water rights in a river running through the Gila National Forest for the purposes of maintaining the environmental and aesthetic characteristics of the forest.

Each of the cases marks a change in direction, if not an about-face, from the previous state of the law in its respective area. Prior interpretations of § 8 of the Reclamation Act have unanimously rebuffed attempts by the states to exert greater influence over federal reclamation initiatives. Likewise, prior interpretations of the "reserved rights doctrine" exhibit a strongly profederal cast, prompting one commentator to characterize the doctrine as a "substantive National Environmental Policy Act" which confers upon federal land managers extensive powers to take state waters to enhance the environment of the federal lands through which they flow.4 It is thus a fair observation that these cases represent a watershed of sorts in the history of the federal-state rivalry over the use of western water.