Federal regulations, enacted by unelected bureaucrats, are being abused to restrict motorized recreation on public lands. For the first time by a decree of an Executive Order to reduce regulations, the administration is asking for public help to identify these abuses— and we have a few. Make your voice heard below.
In this article we'll discuss:
- What CFRs are and how they're used to close access to public lands
- How SCOTUS is recognizing the abuse of CFRs
- 43 CFR 8341.2 (Special Rules for OHV Use) and why we need your help to eliminate it
What is a CFR?
First, we need to talk about the Code of Federal Regulations (CFR). CFRs are the codification and permanent regulations written by federal agencies and departments, like the Bureau of Land Management, which govern their respective spheres.
If you recall in your civic classes from elementary school, Congress is the legislative branch responsible for writing and passing federal laws. If you don’t like the laws or regulations passed by Congress, you have the opportunity to vote them out— or at the very least— make your voice heard to help sway their position. That’s democracy!
However, the way it’s been working is more like this: after passing laws to address a specific issue, Congress often leaves out the details and passes the responsibility on how to implement the law to federal agencies. Agencies then write and adopt regulations through an administrative process which carry the full weight and effect of a law.
In short, Congress passed their responsibility to unelected, career bureaucrats, who are writing their own laws and regulations that affect the general public. Every year, the Federal Register, which includes all of the new CFRs, is published. The length of the document always hovers around 100,000 pages of new regulations every year. Once passed, these regulations are rarely reversed. Which of your representatives are reading all of them?
Don’t like a regulation? If you can find it… What can you do about it? Well, the executive branch is asking for help to identify these bad regulations to remove them from the bloated Code of Federal Regulations. Through an Executive Order, they are requiring that for every one new regulation proposed, ten regulations must be repealed— and they want help identifying which ones deserve to be cut. We’ll help you find the worst offenders in regards to public land access, including the one below.
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Courts Confirm the Abuse
Don’t just take our word for it. Since Congress seems to be skirting their responsibilities to save face, SCOTUS is starting to do their job for them. In a couple of landmark decisions by the Supreme Court, the justices confirm how these agencies are overstepping or abusing their authority left to them by congress.
Chevron Deference
In June of 2024, a SCOTUS rule delivered a severe blow to a 40-year-old precedent known as the “Chevron deference.” This was a legal principle where courts deferred to a government agency’s interpretation of a law it enforces, as long as the law is unclear and the agency’s interpretation is reasonable. Over time this precedent had been used as a tool for federal agencies to rewrite vague laws in ways that have resulted in substantial abuses of power. 18,000+ cases have been decided using this precedent.
With the recent ruling, courts no longer have to defer to the agency interpretation of vague laws. Instead, courts are instructed to utilize standard rules of statutory interpretation— which will discourage vague regulations from being drafted or give the public more ground to challenge them.
With agency deference limited by the Supreme Court, there is currently an ongoing effort to rescind problematic federal regulations. This is good news for BRC and its members, since agencies rely heavily on legally questionable regulations to justify closing or restricting public lands to recreation. We need your help to send a strong message to those reviewing these regulations, that we would like several regulations rescinded.
For a Deeper Dive, Tune Into the Latest Episode of the Defend Your Ground Podcast
43 CFR 8341.2 (Special Rules for OHV Use)
The first CFR we would like you to comment on allows the BLM to temporarily close routes in emergency situations to mitigate impacts, such as environmental damage.
The main problem with this regulation is that it lacks clear guidelines on what constitutes an emergency or a timeline for reopening routes. As we know with most actions of the federal government, when something is enacted, it rarely gets retracted. While we can see the benefit and need for temporarily closing routes in an actual emergency (like a wildfire), to codify it so vaguely without clear mechanisms or criteria for reopening allows for broad interpretation and abuse. And agencies have done just that— regularly using this CFR to first "temporarily" then permanently close trails and routes.
In one example in the San Rafael Desert, routes were closed under this rule due to plants growing across a trail. In the same amount of time the BLM could have spent maintaining these trails for public use, the BLM conducted field visits to document the vegetation growing in the trail.
While doing field work, we visited the routes to verify the BLM's findings . Below you will find the images of the pesky plants growing in the trail, which justified an emergency closure. With the emergency closure in place, a vehicle driving over these plants would have allegedly violated 43 CFR 8341.2 by causing damage to the vegetation growing in the route corridor. In this case the temporary closure became permanent, as the routes were closed until a settlement could be reached in an ongoing legal action by wilderness advocates where they had failed in court to secure an injunction or stay of the deacon to keep these routes open. As a result, this CFR was abused to bypass court decisions in a broader process that led to the permanent closure of these routes.
We Need Your Voice
While the aforementioned SCOTUS rulings provide strong arguments for litigation, it’s much more efficient and quicker to simply overturn them through the ongoing review process — and the current administration is willing to do just that. We’re combing through them so you don’t have to. Now we just need your voice. Please fill out the comment form below so we can send it to the administration for consideration.
Finally, if you appreciate our work, please consider making a donation so we can continue the fight to defend our rights. And if you haven't already, subscribe to our latest newsletter to be notified on the next CFR we want to remove from the books.
