Off-Highway Motor Vehicle Recreation Commission’s “Desert Riparian Policy” stalled

BAKERSFIELD, CA (February 5, 2007) – On Friday, February 2, 2007, the off-highway vehicle (OHV) community won a victory over improper efforts to curb off-road recreation in California.  The judge stated the California Off-Highway Motorized Vehicle Recreation (OHMVR) Commission may not implement its “Desert Riparian Policy” unless and until it develops formal rules defining the policy’s terms and scope.  As currently drafted, the Policy would prohibit use of OHMVR grant funds for projects that allow OHV use in desert riparian areas. The Commission’s policy states that “Desert Riparian Areas” are any bed, bank or channel. If strictly interpreted this policy could have crippled funding in many areas where California families recreate on OHV’s.

Counsel for EcoLogic, David Hubbard, said he was very pleased with the Court’s ruling.  “This could not have worked out better.  We claimed from the beginning that the Desert Riparian Policy was jammed down our throats without public input, without adequate definitions, without evidence as to need, and without limits on its scope.  The court has now leveled the playing field on these questions and forced the Commission to justify the policy in an open public debate.  And if the rules adopted by the Commission would substantially damage funding for OHV projects in the desert, we will be back in front of the judge.”

EcoLogic Partners, Inc., along with five OHV groups – the San Diego Off-Road Coalition, the American Sand Association, the California Off-Road Vehicle Association, the Off-Road Business Association, and American Motorcyclists Association District 37 – sued the Commission last year over the policy, claiming that it conflicted with the text of the OHMVR Act itself.

At the February 2nd hearing the judge denied EcoLogic’s request to dissolve the Desert Riparian Policy outright, but he did rule that the current language of the policy is so vague that it could lead to interpretations inconsistent with the existing law.  He also expressed concern that the Commission might adopt future policies, with broad language similar to that in the Desert Riparian Policy, which are designed to cut off funding for OHV projects in other areas of the state.  When viewed cumulatively, such policies could effectively gut the OHVMR grant program.  For these reasons, the Court instructed the OHMVR Commission and the OHVMR Division to develop workable definitions and rules that properly circumscribe the scope of the Desert Riparian Policy.  This, said the Court, must be accomplished prior to implementation of the policy.  Moreover, it must be done through an open public process.  Then the rules must be reviewed and approved by an Administrative Law Panel.  When asked how long the rule making process would take, counsel for the OHMVR Division estimated 18 months to 2 years.  During that time, the Desert Riparian Policy will remain dormant and unenforceable.

Although the judge stopped short of telling the Commission what the rules should contain, he explained that the OHMVR Act was adopted to promote responsible OHV recreation, and any policy that retreats from that purpose, or operates in conflict with it, will be subject to legal challenge.  He invited EcoLogic and the other OHV groups to participate in the rulemaking process, and to come back to court if the rules adopted by the Commission still create conflict with the text of the Act.