2011-26184. Notice of Final Supplementary Rules for Public Lands in Routt County, CO: Emerald Mountain Special Recreation Management Area

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Notice of Final Supplementary Rules.

SUMMARY:

The Bureau of Land Management (BLM) Little Snake Field Office is issuing final supplementary rules to regulate conduct on specific public lands within Routt County, Colorado. The rules apply to the Emerald Mountain Special Recreation Management Area (SRMA), also known as Emerald Mountain. The BLM determined these rules are necessary to protect Emerald Mountain's natural resources and provide for public health and safety.

DATES:

These rules are effective November 10, 2011.

ADDRESSES:

You may submit inquiries by the following methods: Mail or hand-delivery: BLM, Little Snake Field Office, 455 Emerson Street, Craig, Colorado 81625.

FOR FURTHER INFORMATION CONTACT:

Gina Robison, Outdoor Recreation Planner, BLM Little Snake Field Office (see ADDRESSES listed above); or by phone at [phone]. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at [phone] to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.

SUPPLEMENTARY INFORMATION:

I. Background

II. Discussion of Public Comments and Final Supplementary Rules

III. Procedural Matters

IV. Final Supplementary Rules

I. Background

Prior to the BLM's ownership on February 22, 2007, the Emerald Mountain parcel was owned by the Colorado State Land Board and closed to the general public with the exception of permitted agriculture and hunting. Since 2007 the area has been managed as a day use area and has remained closed to motorized vehicle use. A wide variety of recreational uses are allowed and occur on the parcel including biking, hiking, hunting, horseback riding, sightseeing, and wildlife viewing. This wide variety of use has resulted in user conflicts and the need for additional management actions to address user conflicts, impacts to natural resources, and public safety concerns.

Emerald Mountain is a 4,139-acre parcel of public land in Routt County, Colorado. The parcel is surrounded by private land, a Colorado Division of Wildlife State Wildlife Area and property owned by the Colorado State Land Board. Cow Creek Road (Routt County Road 45) provides legal public access to Emerald Mountain.

These final supplementary rules would apply to Emerald Mountain SRMA, identified as follows:

Routt County, Colorado

Sixth Principal Meridian

T. 6 N., R. 85 W.,

Secs. 13, 15, 22, 23, 24, 25, 26, 27, 34, 35, and portions thereof.

A map of the area is available at the Little Snake Field Office.

Emerald Mountain is managed as an SRMA with two adjoining Recreation Management Zones. Zone 1 is managed under a destination recreation-tourism market strategy. The strategy targets Steamboat Springs-area visitors, including local residents, wanting to participate in strenuous and challenging mountain biking and Nordic skiing on primitive trails that are close to the town. Zone 2 is managed under a community recreation market strategy, primarily for Steamboat Springs area residents to engage in wildlife viewing, hiking and horseback riding in a backcountry setting. Both zones are open to hunting. Other recreation activities are allowable to the extent they are compatible with the primary targeted activities. Both areas are closed to recreational motorized use.

These final supplementary rules implement management decisions made in the Emerald Mountain Land Exchange Environmental Assessment (EA)/Plan Amendment approved in October 2006; the Recreation Activity Management Plan and Transportation Management Plan (RAMP/TMP Phase 1) approved in June 2007; and the Emerald Mountain SRMA Implementation Plan Amendment approved in December 2008, which further defined the final supplementary rules. These documents are available for review at the BLM Little Snake Field Office. The Emerald Mountain SRMA Implementation Plan Amendment included considerable public involvement and review, including six public meetings held at three separate locations.

II. Discussion of Public Comments and Final Supplementary Rules

The BLM published proposed supplementary rules in the Federal Register on August 18, 2010 (75 FR 51107). The public comment period ended September 17, 2010. The BLM received seven public comments, three of which were in support of the proposed supplementary rules.

Of the four opposing comments, three opposed proposed supplementary rule number 5, requiring non-working dogs to be on a leash, but allowing working dogs to be off-leash during legal hunting periods when controlled by someone legally hunting or when working as cattle dogs. Two of the opposing comments suggested that dogs should be allowed off-leash while under voice control. The BLM has not revised the proposed supplementary rules in response to these comments because changes would result in conflicts with the SRMA's goal of protecting wildlife resources. The leash requirements in the final supplementary rules allow recreationists and other members of the public to have dogs within the Emerald Mountain SRMA but provide for the protection of wildlife resources.

The third opposing comment to rule number 5 suggested that restraining a dog on a leash would not work when grouse hunting. In response to this comment, the BLM has revised the proposed supplementary rules by adding a definition of “working dog” to mean a dog suitable by size, breeding or training for useful work such as hunting or livestock herding. The definition of “working dog” was inadvertently left out of the proposed supplementary rules and was added to the final supplementary rule for clarity. The BLM revised final supplementary rule number 5 to be consistent with the new definition of “working dog.”

The final opposing comment concerned game carts not being allowed in Zone 2 of the Emerald Mountain SRMA. This individual felt that game carts should be allowed in all zones for the purpose of retrieving big game. The BLM has not revisited the rules in response to this comment because the suggested change would be in conflict with land use planning decisions that restrict mechanized use in Zone 2. Comprehensive travel management planning addresses all resource use aspects, accompanying modes and conditions of travel on the public lands. Land use plan decisions must delineate Travel Management Areas (TMAs). Zone 2 of the Emerald Mountain SRMA was delineated for non-mechanized use only.

The BLM revised the proposed supplementary rules by listing the definitions in alphabetical order, deleting the definition of “official use” and adding the definition of “official duty” in the final supplementary rules. “Official duty” means use by an employee, agent or designated representative of the Federal government or one of its contractors, in the course of his or her employment, agency or representation. The term “official use” was defined in the proposed supplementary rules, but was not referenced in the proposed or final supplementary rules. The term “official duty” is listed in the exemptions in both the proposed and final supplementary rules.

The BLM also revised the proposed supplementary rules by adding penalties under the Taylor Grazing Act, which were inadvertently omitted in the proposed supplementary rules.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

The final supplementary rules do not comprise a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. They do not have an annual effect of $100 million or more on the economy. They do not adversely affect, in a material way, the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. They do not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. They do not materially alter the budgetary effects of entitlements, grants, user fees, loan programs, or the rights or obligations of their recipients, nor do they raise novel legal or policy issues. The final supplementary rules merely establish rules of conduct for public use of a limited area of public lands.

Clarity of the Supplementary Rules

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites your comments on how to make these supplementary rules easier to understand, including answers to questions such as the following:

(1) Are the requirements in the supplementary rules clearly stated?

(2) Do the supplementary rules contain technical language or jargon that interferes with their clarity?

(3) Does the format of the supplementary rules (grouping and order or sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

(4) Would the supplementary rules be easier to understand if they were divided into more (but shorter) sections?

(5) Is the description of the supplementary rules in the SUPPLEMENTARY INFORMATION section of this preamble helpful to your understanding of the supplementary rules? How could this description be more helpful in making the supplementary rules easier to understand?

Please send any comments you have on the clarity of the supplementary rules to the address specified in the ADDRESSES section.

National Environmental Policy Act of 1969

The BLM prepared two EAs: the Emerald Mountain Land Exchange EA/Plan Amendment (EA CO-100-2006-089) and the Recreation Activity Management Plan and Transportation Management Plan (EA CO-100-2007-057). The impacts of the proposed supplemental rules were analyzed in both documents. The proposed supplementary rules were published in the Federal Register on August 18, 2010 (75 FR 51107). There has been no change from the proposed supplementary rules to the final supplementary rules that would necessitate further NEPA analysis. The final supplementary rules would merely establish rules of conduct for public use of a limited area of public lands. Therefore, based on the foregoing, the BLM has determined that these final supplementary rules would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). The BLM has placed both EA's and Findings of No Significant Impact on file in the BLM Administrative Record at the address specified in the ADDRESSES section.

Regulatory Flexibility Act

Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or proportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. These final supplementary rules merely establish rules of conduct for public use of a limited area of public lands. Therefore, the BLM has determined under the RFA that these rules would not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

These final supplementary rules are not considered a `major rule' as defined under 5 U.S.C. 804(2). The supplementary rules merely establish rules of conduct for public use of a limited area of public lands and do not affect commercial or business activities of any kind.

Unfunded Mandates Reform Act

These final supplementary rules will not impose an unfunded mandate on state, local, or tribal governments in the aggregate, or the private sector of more than $100 million per year; nor will they have a significant or unique effect on small governments. The final supplementary rules will have no effect on governmental or tribal entities and will impose no requirements on any of these entities. The final supplementary rules merely establish rules of conduct for public use of a limited area of public lands and do not affect tribal, commercial or business activities of any kind. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).

Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings)

The final supplementary rules do not represent a government action capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that the final supplementary rules will not cause a taking of private property or require further discussion of takings implications under this Executive Order.

Executive Order 13132, Federalism

The final supplementary rules will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the BLM has determined that the supplementary rules will not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

Under Executive Order 12988, the BLM determined that these final supplementary rules would not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, the BLM initiated consultation with the following Native American tribes regarding the proposed Emerald Mountain Land Exchange project in September 2004: Southern Ute Tribe, Ute Mountain Ute Tribal Council, Colorado Commission of Indian Affairs, and the Uintah and Ouray Tribal Council. The tribes did not identify any concerns regarding traditional or religious cultural properties in the Emerald Mountain SRMA. These supplementary rules would not affect Indian land, resources, or religious rights.

Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

Under Executive Order 13211, the BLM determined that the final supplementary rules will not comprise a significant energy action, and that they will not have an adverse effect on energy supplies, production or consumption.

Paperwork Reduction Act

The final supplementary rules do not directly provide for any information collection that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. Moreover, any information collection that may result from Federal criminal investigations or prosecutions conducted under these rules are exempt from the provisions of 44 U.S.C. 3518(c)(1).

Author

The principal author of these final supplementary rules is Gina Robison, Outdoor Recreation Planner, BLM Little Snake Field Office.

IV. Final Supplementary Rules

For the reasons stated in the Preamble, and under the authority of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1733 and 1740, 43 U.S.C. 315a, 43 CFR 8364.1, and 43 CFR 8365.1-6, the BLM Colorado State Director establishes the following final supplementary rules for public lands within the Emerald Mountain SRMA.

Final Supplementary Rules for the Emerald Mountain Special Recreation Management Area

Definitions

Camping means the erecting of a tent or shelter of natural or synthetic material; preparing a sleeping bag or other bedding material for use; parking a motor vehicle, motor home or trailer; or mooring a vessel for the apparent purpose of overnight occupancy.

Designated Trail means a trail developed, maintained, and explicitly identified for public use by the BLM. All designated trails will be identified by a combination of trailhead maps and on-site signage listing allowable uses.

Firearm or Other Projectile Shooting Device means all firearms, air rifles, pellet and BB guns, spring guns, bows and arrows, slings, paint ball markers, other instruments that can propel a projectile (such as a bullet, dart or pellet by combustion, air pressure, gas pressure or other means) or any instrument that can be loaded with and fire blank cartridges.

Mechanized Transport means any vehicle, device or contrivance for moving people or material in or over land, water, snow or air that has moving parts, including, but not limited to, bicycles, game carriers, carts and wagons. The term does not include wheelchairs, horses or other pack stock, skis or snowshoes.

Motorized Vehicle means any self-propelled device in, upon or by which any person or property is or may be propelled, moved or drawn, including, but not limited to, cars, trucks, vans, motorcycles, all-terrain vehicles, motor-driven cycles, motorized scooters, motorized skateboards and snowmobiles. “Motorized vehicle” does not include a self-propelled wheelchair, invalid tricycle or motorized quadricycle when operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian.

Official Duty means use by an employee, agent or designated representative of the Federal government or one of its contractors, in the course of his employment, agency or representation.

Working Dog means a dog suitable by size, breeding or training for useful work such as hunting or livestock herding.

Prohibited Acts

Unless otherwise authorized by the Little Snake Field Manager, the following rules apply within the Emerald Mountain SRMA boundary:

1. Camping and overnight use is prohibited. The area is closed between sunset and sunrise, except for lawful hunting licensed periods and for retrieval of legally-taken game. Hunters are not allowed to camp overnight.

2. No mechanized transport activities are allowed within Zone 2, including game carts.

3. No person or persons shall discharge a firearm or other projectile shooting device of any kind, including those used for target shooting or paintball, except licensed hunters in pursuit of game during the proper season with appropriate firearms, as defined by the Colorado Division of Wildlife (CDOW), Section 33-1-102, Colorado Revised Statutes, Article IV, Number 004: Manner of Taking Wildlife.

4. Zone 2 and trails south of Ridge Trail in Zone 1 are closed to the public from December 1 to June 30 to protect wintering and calving elk.

5. Non-working dogs must be on a six-foot or less hand-held leash at all times. Working dogs are allowed off-leash only during legal hunting periods when controlled by someone legally hunting, or when working to herd livestock.

6. Fires are not allowed except at the trailheads in a mechanical stove or other appliance fueled by gas and equipped with a valve that allows the operator to turn the flame on and off.

7. Possession of glass containers is prohibited.

8. The entire area is designated closed to motorized vehicle travel, with the exception of Cow Creek Road (Routt County Road 45). The closure excludes:

(a) Any military, fire, emergency or law enforcement vehicle being used for emergency purposes;

(b) Any vehicle expressly authorized by the authorized officer, or otherwise officially approved (e.g., grazing permittee, CDOW, Routt County personnel).

Exemptions

The following persons are exempt from these supplementary rules: any Federal, state, local and/or military employee acting within the scope of their official duties; members of any organized rescue or fire-fighting force performing an official duty; and persons, agencies, municipalities or companies holding an existing special-use permit inside the SRMA and operating within the scope of their permit.

Penalties

Under the Taylor Grazing Act of 1934, 43 U.S.C. 315a, any willful violation of these supplementary rules on public lands within a grazing district, and within the boundaries established in the rules shall be punishable by a fine of not more than $500 or,

Under Section 303(a) of FLPMA, 43 U.S.C. 1733(a), if you violate any of these supplementary rules on public lands within the boundaries established in the rules, you may be tried before a United States Magistrate and fined no more than $1,000 or imprisoned for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571.

Helen M. Hankins,

State Director.