Shannon Arata

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Writer's comment: This final assignment for Professor Mark Lubell's ESP 172: Public Lands Management class was one of the first papers I had to tackle as a student in the Environmental Policy, Analysis, and Planning major. It proved to be one of the more challenging assignments that I've encountered while at UC Davis. Before actual writing could commence, hours of research went into verifying facts and contacting individuals for interviews. By the time I stapled the final product and turned it in, I had spent about 25 hours in writing alone. However, the hours spent working on this assignment over the Thanksgiving holiday were completely worthwhile. As a result of carefully completing this assignment, my understanding of many topics covered within the class and environmental policy as a whole was strengthened. Hopefully others will find this topic interesting and will venture into the realm of environmental science and policy. Happy reading!
—Shannon Arata

Instructor's comment: The research paper in ESP 172 required students to conduct a case study of a public lands conflict in California. The overall goal was to examine how various political institutions balanced the competing interests over possible uses for public lands, and whether or not the resulting decisions represented good public policy. In “The Battle for the Clear Creek Management Area,” Shannon Arata does an excellent job of demonstrating how competing interest groups attempt to secure their preferred policies on the battlegrounds of the courts and Bureau of Land Management planning processes. She paints a clear picture of the conflict between off-highway vehicle users, who desire broad access to off-road trails, and environmental groups, who seek to protect the habitat of threatened plant species. Shannon offers interesting insights into why the BLM has failed to resolve this conflict, and how national political circumstances affect local decisions. With increasing numbers of recreational users on all public lands, along with greater recognition of the value of biological resources, these conflicts will continue to plague public lands management into the foreseeable future.
—Mark Lubell, Environmental Science & Policy

Abstract
Central California’s Clear Creek Management Area (CCMA) has been host to many activities since its first human inhabitation by Native Americans; such activities include mining, logging, hiking, and hunting. However, it is the Area’s most modern and popular use as an off-highway vehicle (OHV) site that has caused strife for the envi-ronmental, recreational, and administrative organizations concerned with this land. As a result of increased OHV use in the CCMA, the land itself has suffered great degradation, thus negatively affecting native endangered and threatened species. Further, environmental groups wish for the CCMA to be designated officially as a limited-use area, and intend to sue the Area’s managerial agency—the Bureau of Land Management—in order to achieve such designation. However, a limited-use designation would lessen OHV path availability and infringe upon recreational opportunities. Consequently, recreational groups fear a loss of their rights to the public land and favor negotiation with concerned parties in lieu of litigation. Finally, both environmentalists and recreationalists accuse the under-funded and unenthused BLM of negligently managing the land and violating the Endangered Species Act. Ultimately, the future of the Area depends upon the BLM’s ability to equitably balance the preservative and consumptive uses of the land.

I. Introduction
Dating back to migration of the first Native American tribes to central California, the public land encompassing the Clear Creek Management Area (CCMA) has been used by humans without incident. Not until recently have arguments emerged about how CCMA should be used. Designated as a "multiple use" land, Clear Creek's numerous recreational activities in-clude hunting, hiking, and rock-hounding. However, it is Clear Creek's most popular recreational activity, off-highway vehicle (OHV) riding, which has generated the most debate over how the area should be managed.
      Specifically, environmental groups now fear that escalat-ing, unmanaged OHV activity will degrade the land and threaten native plant and animal species. These groups rec-ommend that Clear Creek officially be designated as a Limited Use Area for OHVs, thus restricting current OHV usage. Con-versely, recreational groups argue that they are equally con-cerned with maintaining the integrity of the land, but contend that limiting OHV recreation on much of the CCMA conflicts with the land's designation as a multiple use area and violates the principle of non-excludability on public lands. Both sides accuse the Bureau of Land Management (BLM) of improperly managing Clear Creek; thus, the BLM is currently being forced to re-examine its own policies and determine which of these policies best serves the public interest.
      Ultimately, what is at stake is everyone's right to use pub-lic land, whether for recreation or preservation. In the end, it is the BLM's responsibility to achieve a balance among the land's multiple uses that preserves the land's ecological integrity without unnecessarily excluding specific public activities. To do this, the BLM must be guided by applicable regulations, sta-tutes, and policies, and must recognize that the successful maintenance of Clear Creek requires that individuals act res-ponsibly on public lands and exhibit individual environmental stewardship.

II. Issue Description
      A. Basic Facts
      The Clear Creek Management Area consists of 75,829 acres of land, 63,197 acres of which are owned by the De-partment of the Interior and managed by its Bureau of Land Management. An additional 10,668 acres are under private ownership, while the remaining 1,964 acres belong to the state (Beehler 2004). The public areas of the CCMA are under the jurisdiction of the Hollister field office of the BLM and are overseen by its Area Manager, Bob Beehler. CCMA is located in central California, spanning the southern portion of San Benito County and the western portion of Fresno County (Beehler 2004). It lies within the Southern Diablo Mountain Range (Murphy 2004) and includes the ap-proximately 31,000-acre Serpentine Area of Critical Environ-mental Concern (Serpentine ACEC) (Beehler 2004); about 4,082 acres of this Serpentine ACEC are designated as the San Benito Mountain Research Natural Area (SBMRNA) (Beehler 2004).
      The Serpentine ACEC was designated as an area of crit-ical concern in 1984. This designation resulted from concerns over the area's serpentine-derived alluvial soil, which contains asbestos, a mineral associated with health problems such as asbestosis (lung scarring) and several types of cancer (Hollis-ter BLM 2004). However, in recent years the most controver-sial aspect of this serpentine soil is its unique vegetation, such as the San Benito Evening Primrose (Camissonia benitensis) (Beehler 2004). This species of primrose is on the federal list of threatened plant species and can be found only on the CCMA (Roberson 2004). Unfortunately, due to shallow topsoil, slow plant regeneration, and even slower soil formation, the land and species within the Serpentine ACEC are especially sensitive to erosion (Beehler 2004). Such erosion is accelerated by human activity and is especially sensitive to OHV recreation.
      The ecological characteristics of the CCMA also include its topography and climate, its soil types, native minerals and metals, and its biological resources. Topographically, the CCMA is mountainous, with elevations ranging from about 2,000 feet to 5,241 feet at its highest peak (Beehler 2004). In-terspersed are small, flat stream terraces. Clear Creek predo-minantly is composed of "steep, barren areas surrounded by brush-covered slopes with occasional rock outcrops" (Beehler 2004). CCMA's climate is described as Mediterranean, mean-ing that it is hot and dry in the summer, cool and wet in the winter, and receives an average annual rainfall of about 17 inches (Beehler 2004). Soils in the CCMA originate from two main types of rock—serpentine and sedimentary (Beehler 2004). Soils derived from serpentine rock contain asbestos, whereas those formed from sedimentary rock do not. Although both types are subject to erosion and human disturbance, the serpentine soils are of primary concern. Clear Creek's soils are among the most highly mineralized in California, containing over 150 types of semi-precious mineral and gemstone depo-sits like cinnabar and benitoite (CCMA 2004). Metals local to the area include chromium, mercury, and nickel (Beehler 2004).
      The CCMA is home to many unique plant and animal bio-logical resources. Its plant resources include seven "special status" species and eight other "species of concern" (Beehler 2004). "Special status" species are those that are federally listed or candidates for federal listing as threatened or endan-gered. "Species of concern" are those with limited possible growing areas due to special needs, such as plants with spe-cific soil requirements. The most notable of CCMA's special status plant species is the aforementioned San Benito Evening Primrose. The CCMA is also home to unique animal species, including nineteen special status species—including the bald eagle (Haliaeetus leucocephalus)—and six species of concern, including the prairie falcon (Falco mexicanus) (Beehler 2004).

B. History/Legal Framework
      Historically, use of the CCMA began with the first Native American tribes that migrated to central California (CCMA 2004). Beginning in the mid-1850s, road development began in conjunction with mining and timber operations (Beehler 2004). In recent times, these industries have dwindled, and recreation (hiking, mountain biking, rock-hounding, etc.) has become the principal industry/activity in the Clear Creek area. Since the mid-1970s, OHV use has been the predominant recreational activity at the CCMA and continues to gain popularity (Beehler 2004). In fact, there has been a 15% increase in OHV activity at Clear Creek over the past three years, leading to further degradation of limited serpentine habitat (Roberson 2004). In 1972, the BLM designated the SBMRNA as an outstanding natural area, meaning that it has natural characteristics that are unusual and/or of scientific or other interest, and—based on this designation—closed the SBMRNA to OHV use (Hollister BLM, 2004; Beehler 2004). By 1982, the BLM had established initial OHV designations, and in 1999 recommended that CCMA be designated as a limited use area for OHV recreation (Beehler 2004). However, Clear Creek's limited use designation has not yet been adopted officially; the 2004 Draft Plan Amendment and Draft Environmental Impact Statement (DEIS) (written under NEPA guidelines) proposes enacting OHV restrictions.
      Managerially, the BLM supervises Clear Creek according to the following applicable policies, statutes, and regulations: the Federal Endangered Species Act, the National Environ-mental Policy Act (NEPA), the Federal Land Policy and Man-agement Act, the National Historic Preservation Act, the Clean Air and Water Acts, and certain Federal Executive Orders. Regarding OHV use, the most significant regulations are Ex-ecutive Orders 11644 and 11989, both of which regulate the use of OHVs on public land (Beehler 2004). Of the Acts listed above, the Endangered Species Act (ESA) and its application to the San Benito Evening Primrose is cited most often by en-vironmental groups when contesting the BLM's management of Clear Creek. The ESA provides that a public agency cannot allow or engage in any activity that could jeopardize the exis-tence of an endangered or threatened species (Loomis 2002, 75). The collective statutes, policies, and regulations that the BLM follows in managing Clear Creek comprise what is known as a Resource Management Plan (RMP). The first Hollister RMP was completed in 1984 and was amended in 1995 to accommodate new concerns. As mentioned, the CCMA was designated as a limited use area in 1999, and the current 2004 Plan Amendment aims to revise the 1995 RMP by officially adopting Clear Creek's limited use designation.
      Currently, the conflict among environmental interests, recreation groups, and the BLM was intensified by the U.S. Fish and Wildlife Service's 1985 determination that OHV use is the principal threat to the San Benito Evening Primrose; this determination resulted in the plant's listing as a threatened species (Roberson 2004). Since this determination, environ-mental groups, such as the Center for Biological Diversity and the California Native Plant Society (CNPS), have closely mo-nitored BLM's management of the CCMA and the increase in OHV usage within the Primrose's habitat. According to Emily Roberson, Senior Policy Analyst for the CNPS, "off-road use and damage has only escalated and the Bush BLM still allows off-road races in this habitat." Comments like these have led environmental groups to believe that the BLM is not acting in compliance with its 1999 limited use designation and with the requirements of the ESA (Roberson 2004). In response to es-calating concern for threatened species in the CCMA and in-creasing pressure placed on the BLM, the Hollister Field Office has enacted an emergency closure of sensitive areas, includ-ing many OHV routes (Hollister BLM 2004). Following this emergency closure, a network of trail access groups filed a "Notice of Intent to Sue" (NOI) with the BLM in May 2004, two months after the CNPS and the Center for Biological Diversity (the Center) filed a NOI of their own; both NOIs allege that the BLM has acted in violation of the ESA (Hollister BLM 2004).
      Finally, on November 9, the CNPS and the Center offi-cially filed a lawsuit against the Bush Administration and the BLM, seeking protection for the San Benito Evening Primrose. Both CNPS and the Center contend that progress toward ne-cessary protection could not be achieved through cooperative efforts with the BLM and with off-road groups (Roberson 2004). However, correspondence with Lisa Beutler, the Asso-ciate Director of the Center for Collaborative Policy at CSU Sacramento, suggests that a reasonable level of cooperation from recreation groups was evidenced during meetings that took place a year ago, in which both sides agreed to withhold litigation contingent upon the BLM's course of action (Beutler 2004). Recreation groups view the CNPS/Center's decision to litigate as counterproductive, and contend that continued ne-gotiations among environmentalists, OHV groups, and the BLM provide the best hope of achieving a balanced preservation of both natural and recreational resources.
      Input from recreational representatives suggests that this conflict may escalate further given previous negotiations' lack of success and impending litigation from the environmental sector. Don Amador, the western representative for the Blue Ribbon Coalition (BRC), a national recreation group that pro-motes individual environmental stewardship and responsible land use, notes that the 2004 DEIS supported by the "an-ti-access" environmentalists would close access to unique OHV resources, such as one-track trails (Amador, BRC Com-ments, 2004). The Salinas Ramblers Motorcycle Club predicts that the proposed closure of over half of the OHV trails in the CCMA would mean the demise of special events held at the CCMA, such as the Quicksilver National Enduro, the longest OHV race of its kind (SRMC 2004). Currently, the BRC is re-viewing the CNPS/Center lawsuit and plans to respond appro-priately.

III. Application of Analytical Materials
      A. Regime Analysis
      The principal obstacle to the successful, multiple-use management of CCMA appears to be the BLM, the area's managing agency. As noted by Clarke and McCool, the BLM suffers from both insufficient funding and low morale (1996; Lubell, Lecture 5, 2004). These inadequacies are apparent in the fact that the San Benito Evening Primrose was identified as a threatened species almost twenty years ago, yet little progress toward its protection has been made. Moreover, the BLM still has not finalized its plan proposed in the 1999 amendment to designate the CCMA as a limited use area. In fact, the BLM has failed to implement even the most basic steps in protecting the Evening Primrose, such as fencing off particularly vulnerable areas. For this reason, private groups, such as the SRMC, have assisted the BLM in fencing projects (Tobin 2004); without private involvement, it is likely that pro-posed preventative measures would remain in the theoretical stage indefinitely. As Don Amador has stated, the BLM has done a poor job of fulfilling its obligations as CCMA's mana-gerial agency (Amador, Interview, 2004).
      Another obstacle to the effective management of the CCMA is the bureaucratic requirements associated with the agency's adoption of its operational rules—what's permitted, prohibited, and required in managing public lands (Lubell, Lecture 2/3, 2004). Since 1999, these rules have been under-going a revision process that might be completed with the eventual acceptance of the 2004 DEIS. However, bureaucratic and semantic arguments continue. Currently, for example, en-vironmental and recreational groups are debating which OHV paths should be permitted, prohibited (closed), and "required." The last word, "required," refers to Clear Creek's designation as a multiple use land; thus, it is argued that Clear Creek is "required" to be used for all purposes, including OHV recreation. Likewise, public lands are theoretically non-excludable, meaning that OHV use could not be banned entirely from the CCMA (Lubell, Lecture 2/3, 2004). These technical and bureaucratic distinctions direct attention away from the real and important issue—what combination of envi-ronmental and recreational resources should be allowed to best manage the land.
      Interest groups can draw upon available power sources in advocating their points of view and influencing the selection of an appropriate combination of resources. As mentioned, the two main interests involved in the Clear Creek controversy are the environmental and recreational interests. The environ-mentalists support the proposed trail closures in order to protect the Evening Primrose, whereas recreational groups argue for an alternative that will protect both sensitive habitats and unique OHV recreational resources. The main power sources for both groups are the courts, the media, and the NEPA process. With regard to the courts, "venue shopping," or choosing to sue where a judge with similar viewpoints presides, is a source of power (Lubell, Lecture 4, 2004). In the case of Clear Creek, the courts will decide whether or not the BLM is in violation of the ESA. However, heavy reliance upon litigation does not endear a group to those with differing viewpoints, especially if a group employs "legal train wreck" strategies to slow the litigation process (Lubell, Lecture 6.5, 2004). Additionally, media sources (internet, newsletters, etc.) allow interest groups to advocate their point of view and draw a larger constituency, a power source in itself—it is a group's constituency that provides the funding for court costs. Lastly, the NEPA process, which allows all interests to comment and review DEIS's before finalization, also gives interest groups a say as to the management of public lands.

      B. Economic Analysis
      An economic analysis of the CCMA must rely heavily upon contingent valuation since the public goods supplied by the area are non-market goods and do not involve production or market costs (Lubell, Lecture 6.5, 2004). The BLM estimates that OHV recreation contributes about $2.5 million to the regional economy; however, the social value provided by CCMA must be added to this figure in order to gain an accu-rate view of the Clear Creek economy (Beehler 2004). Con-tingent valuation, or placing monetary values on non-market goods based upon the social values individuals place on such goods, is highly subjective. Thus, there are marked differences between the values that environmental and recreational groups place on specific public goods, such as OHV recreation. For example, the increased prevalence of OHVs at Clear Creek in conjunction with dwindling San Benito Primrose populations demonstrates that a higher contingent value has been placed on recreation. However, as a result of this increased OHV usage, the quality of OHV paths has deteriorated noticeably (Tobin 2004), demonstrating that rational actors have over-consumed the available recreational resource, leading to its destruction, a phenomenon known as the tragedy of the commons (Lubell, Lecture 2/3, 2004). Despite their differences, both sides have made efforts to preserve the natural and recreational resources so that they remain available to posterity. If a balanced RMP is developed and enacted, such goods should remain intact for future generations. However, the success of any intergenerational transfer might be compromised by the ability of the already under-funded BLM to ensure future availability of resources.

      C. Political Analysis
      Politically, the Courts greatly affect the management of Clear Creek. They directly affect public lands management in that they determine whether or not an agency is acting within legal boundaries. And since there is no such thing as a non-activist judge, such court decisions will reflect the attitude of that specific court (Lubell, Lecture 4, 2004). In the case of Clear Creek, the Courts will decide whether or not the Hollister BLM is acting in accordance with the ESA, and these judg-ments will directly impact the BLM's future managerial practic-es.
      The President also wields considerable direct and indirect influence over the management of public lands. Indirectly, the bureaucratic structure of the BLM depends upon the President in office; the quality of leadership within the BLM has varied throughout its existence and depends upon the preferences of the presidential administration (Lubell, Lecture 5, 2004). Addi-tionally, the President exerts his direct influence on public lands management by issuing executive orders. For example, Presidents Nixon and Carter issued Executive Orders 11644 and 11989, respectively, both of which established policies for OHV use on public lands (Beehler 2004). These orders con-tinue to guide the BLM in OHV management of public land, including Clear Creek. Another example of presidential influ-ence can be seen in reviewing the record of the current Bush Administration. Since 2000, President Bush has supported the undoing of over 150 environmental policies, including the ESA, dating back to the Nixon Administration (Woods 2004). One such policy change is of particular interest in the Clear Creek debate—Daniel R. Patterson, an ecologist with the Center, has stated that under the Bush Administration, the BLM has ag-gressively expanded OHV use on public lands (2004).
      Generally, political decisions regarding public land depend upon the attitudes and preferences of the political party in power. Currently, President Bush (representing the Republican Party) has demonstrated a strong preference for extractive, non-ecological interests, a preference that is mirrored in his environmental policy. For this reason, one might reasonably expect that the Bush Administration will not take steps ne-cessary to improve the effectiveness of its Bureau of Land Management, an agency that historically has been one of the federal government's less effective agencies.

IV. Criticism of Current Policy and Policy Recom-mendations
      A. Criticisms
      Overall, weaknesses in the management of the CCMA do not stem from federal statutes and regulations, but from those responsible for implementing these rules. With respect to the situation at Clear Creek, the Endangered Species Act explicitly specifies the role of public agencies in conserving endangered or threatened species, such as CCMA's San Benito Evening Primrose. Thus, the strength of this Act (as it exists in its cur-rent form) is the clarity of its intent. In addition, the ESA is spe-cific in its treatment of endangered species and habitat and has had past success in protecting such resources (Loomis 2002, 76). Of course, a direct assault by the Bush Administration involving reform or repeal of the ESA is possible; at this time, however, such a direct act seems unlikely. However, the current documented problems at Clear Creek suggest that the ESA can be undermined by indirect means, such as by ineffi-cient administration and implementation. The Hollister BLM has been negligent in protecting the Evening Primrose and its habitat. Given the amount of time the BLM has had to take proper precautions to protect this species of primrose (such as fencing of sensitive areas), one must conclude that the agen-cy's inaction clearly violates the spirit (if not the letter) of the ESA.
      Likewise, the BLM has been negligent and tardy in ad-dressing the proposed 1999 amendment that would designate Clear Creek as a limited use area. Not until the 2004 DEIS did the BLM officially pursue this amendment and take strides to-ward finalizing a limited use plan. However, this site-specific amendment has weaknesses as well. Keeping in mind that Clear Creek is a multiple use land, the 1999 proposal and corresponding DEIS suggest closing more than half of the ex-isting OHV trails in order to protect the Evening Primrose. It is unclear that such a drastic closure is necessary to adequately preserve the serpentine habitats. Also, the paths chosen for closure would most likely mean an end to unique riding op-portunities and events at Clear Creek, including the Quicksilver National Enduro. In this way, not all uses of the land would be satisfied under the proposed regulations. Additionally, extensive closures of OHV paths would exclude OHV users from much of the land, violating the non-excludability characteristic of public lands. Still, from an environmental viewpoint, the proposed closures are welcome in that they would greatly de-crease the degradation due to OHVs on a large portion of Clear Creek.
      The National Environmental Policy Act itself has inherent strengths and weaknesses. NEPA's strength lies in its provi-sions that force public and private actors to consider environ-mental impacts and possible ways to mitigate negative im-pacts. However, NEPA lacks the authority to enforce the deci-sions reached in impact statements. NEPA merely provides procedural guidelines for assessing environmental impacts and does not ensure that the "best" course of action is chosen. Also, the NEPA procedure is susceptible to manipulation, whether intentional or not, by project proponents. For instance, the Blue Ribbon Coalition alleges that the 2004 DEIS does not provide adequate maps that would allow the public to under-stand and comment on the proposed changes to the OHV trail system (Amador, BRC Comments, 2004). If true, this inade-quacy constitutes a weakness in the NEPA process to the ex-tent that it does not ensure that the DEIS is sufficient.

      B. Recommendations
      First and foremost, I would recommend that every effort be taken to rejuvenate the BLM and to improve its efficiency. To assure that (limited) available BLM funds are used effi-ciently, a first step toward this goal would be to prepare an ini-tial financial analysis of each BLM project and to prioritize each of these projects. For instance, in the case of Clear Creek, an initial analysis of the cost of fencing the most sensitive habitats should have been done. However, a financial analysis is useful only if the proper funding is available. Thus, the Bureau of Land Management must be allocated a greater budget, an increase that might have the ancillary positive effect of boosting bureau morale. Additionally, time limits need to be placed on the BLM for dates by which proposals, like the 1999 limited use designation, are accepted or rejected. Such limits would decrease the lag evident in BLM decision making.
      Specific to Clear Creek, I would suggest that the BLM fence off the most sensitive areas of San Benito Evening Pri-mrose Habitat and observe the effect of this limited fencing on the species' wellbeing. Given how little is currently known about the sensitivity of this species, it is possible that even this basic precaution could have a profound effect on the primrose population. Meanwhile, further comprehensive research needs to be undertaken in order to find a way to maintain many of the existing OHV trails without sacrificing serpentine land. Such research should strive to find the best alternative that would balance natural and recreational resource preservation. Since neither resource can be given a definite monetary value, they should be given equal weight until objective, third-party re-search indicates that one is more valuable than the other.
      Also, assuming that some OHV trails will be closed to fur-ther recreational usage, it is imperative that closed areas be clearly marked and the reason for the closure disclosed. In this connection, the absolute necessity of the closure should be explained in plain language, and not by citing an ordinance code. Similarly, it is imperative that the BLM not allow any in-terest group to influence the agency's policies in such a way that the land becomes excludable to some individuals.
      Lastly, I would suggest that all interests promote respon-sible use of public lands and individual environmental ste-wardship. The latter term was described by Dan Macon of the BLM to describe an individual's sense of responsibility and wil-lingness to care for the land. It should also be noted that envi-ronmentalists do not possess a monopoly on environmental stewardship; groups such as the Blue Ribbon Coalition and the Salinas Ramblers Motorcycle Club have clearly considered environmental consequences of their proposals and recom-mendations.

V. Conclusion
In the end, recent struggles over the proper management of the Clear Creek Management Area are a product of the BLM's inability to balance its own resource protection policies with the rights of the public. As a public land, Clear Creek must remain non-excludable and serve its multiple uses. However, the land also must be managed in accordance with applicable statutes, regulations, and policies in order to protect all of its resources.
      The BLM has acted in violation of the ESA by not protect-ing the San Benito Evening Primrose, which in turn has prompted environmental groups to litigate for its protection. Unfortunately, this lawsuit against the BLM most likely will lead to further litigation by recreation groups and further delays in reaching a compromise that protects the interests of both the land and its users.
      Until this legal and bureaucratic maneuvering is resolved, the preservation of an endangered species and recreationalists' right to access public lands will continue to be mutually threatening.

Works Cited