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RE: [snowkiteidaho] Re: New Flier on lake low recreational use restrictions...

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  • Jason Brickner
    Hey John, Not sure it matters much here, but my neighbor used to windsurf at Lake Lowell in the late 80 s/early 90 s. He said they were never told it was
    Message 1 of 14 , May 2, 2009
    • 0 Attachment
      Hey John,
       
      Not sure it matters much here, but my neighbor used to windsurf at Lake Lowell in the late 80's/early 90's.  He said they were never told it was illegal.
       
      Thanks for all the work you're doing on this.  Isn't it crazy... we only use Lake Lowell about 10-20 times per year.
       
      -Jason


      From: snowkiteidaho@yahoogroups.com [mailto:snowkiteidaho@yahoogroups.com] On Behalf Of Jon Bolt
      Sent: Saturday, May 02, 2009 8:40 AM
      To: elaine_johnson@...; susan_kain@...; Todd_fenzl@...
      Cc: Boise Sailors Association; idahokiteboarding@yahoogroups.com; Snowkiteidaho; thelake@...; Jon Bolt
      Subject: [snowkiteidaho] Re: New Flier on lake low recreational use restrictions...

      Elaine and Todd,
       
      Thank you both for taking the time to reply to my recent inquiries on behalf of the Boise Sailor's Association.
       
      While I am no expert on public uses of Federal Wildlife Refuges, with regard to regulations for public use I note the Code of Federal Regulations states the following:
       
      Title 50, Subpart C:  Public Use and Recreation;
      Sec. 26.32  Recreational uses:    Recreational uses such as, but not limited to, sightseeing, nature observation and photography, interpretive centers and exhibits, hunting and fishing, bathing, boating, camping, ice skating, picnicking, swimming, water skiing, and other similar activities may be permitted on national wildlife refuges. When such uses are permitted the public will be notified under the provisions of this subchapter C.

      Title 50, SubpartC, Part 26.33 (6):  Special regulations [ i.e, for individua l wildlife refuges] for public use, access, and recreation are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations. They shall be issued in compliance with procedures contained in the Departmental Manual.
       
      TITLE 50, Subpart C, Sec. 26.34:  What are the special regulations concerning public access, use, and recreation for individual national wildlife refuges?
          The following refuge units, listed in alphabetical order by State and unit name, have refuge-specific regulations for public access, use, and recreation.. ..

      In light of the above, permit me to ask five questions: 

      1)  In the Federal Register, why is there no regulation restricting kiteboarding at Lake Lowell?  26.33.6 suggests posting in the Federal Register is a required element of establishing a special regulation restriction? 
       
      2)  Regulation 26.34 answers: "What are the special regulations concerning public access, use, and recreation for individual national wildlife refuges".  Why does 26.34 fail to contain any special regulations whatsoever restricting uses for Lake Lowell when it clearly details restrictions  at other refuges?  26.33.6 states "Special regulations for public use...are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations.  However, while other refuges publish their restrictions in the Federal Register and have clearly codified them in the CFR's, why has Deeflat done neither, including for the alleged ban on kiteboarding?
       
      3)  Title 50, Subpart C, Sec. 26.41:  "What is the process for determining if a use of a national wildlife refuge is a compatible use?
          "...This section provides guidelines for making compatibility determinations, and procedures for documenting compatibility determinations and for periodic review of compatibility determinations. .."
      The section goes on to detail the analyses and questions-to- be-answered prior to determining whether a use is compatible or incompatible.
       
      Since for over 7 years a kiteboarding ban was never alleged or enforced (i.e., it was permitted) we'd like to understand the analysis and rationale behind this new treatment of kiteboarding.  Why has it been judged to be an incompatible use when so many other uses are permitted that are vastly more threatening to wildlife?  One of our members mentioned Todd explaining something about "airspace" as the reason for considering a ban.  We'd like to understand the analysis and answers to the types of questions in 26.41 so we may better understand the objective reasons why kiteboarding is alleged to be an incompatible use, when other far more pervasive and incompatible uses are permitted.
       
      4)  What are the procedures in the Interior Department's "Departmental Manual" that are to be followed prior to issuing a special regulation?  Our members have kiteboarded at Lake Lowell since before 2002 (not just a couple of years), unavoidably visible to attentive refuge personnel.  Never  over that long period (until last year) did any refuge personnel ever allege potential of a ban and never at any time have they enforced such a ban.  In law, such a "course of dealing" is often sufficient to establish entitlement to a right and a waiver of an enforcer's right to enforce.  Law aside, the observations raised in questions 1 to 3 above, the long pattern of permitting our use, the total absence of any engagement with us to pose questions about or understand our use, and the sudden change in policy (evidenced by change to the refuge brochure) makes us wonder whether the proper procedures were performed prior asserting  existence of a ban?  Please furnish the content of the Departmental Manual detailing procedures to be followed prior to issuing special regulations and restrictions, so we may assure all proper procedures were followed prior to establishing any bans. 
      5)  May we also know, is windsurfing (also know as sailboarding) a permitted activity?
       
      Thanks in advance for replying to the above questions.  I will shortly attempt to setup a meeting with Susan and Todd to introduce ourselves and further discuss this issue.
       
      Regards,

      Jon Bolt
      Boise Sailors' Association

      On Fri, May 1, 2009 at 1:20 PM, <Elaine_Johnson@ fws.gov> wrote:

      I have received your e-mails and would like to take the opportunity to tell you a bit about National Wildlife Refuges and their regulations and management.

      National Wildlife Refuge lands are different than many other Federal lands. Refuges are closed to all activities unless specifically authorized. Kiteboarding has never been authorized or sanctioned. Kiteboarding was added to the list of prohibited activities in our flyer as we have seen an increase in the number of users participating in this unlawful activity. It is not a new restriction. Since refuges are closed to activities unless opened, the list of prohibited activities is not all inclusive. Instead we try to focus on allowed activities. The list of prohibited activities includes activities commonly inquired about or an unauthorized activity we have seen occurring regularly.

      We first encountered kiteboarders a couple years ago and explained to the folks we talked with that kiteboarding was not allowed. There have been several other times over the last couple years that we have encountered and spoken with kiteboarders. This is not a case of an unauthorized activity continuing due to unresponsiveness from the refuge.

      While there are a number of activities occurring on the lake that were not authorized, these activities have been occurring for decades. They will be reviewed and addressed in our up-coming Comprehensive Conservation Plan (CCP).

      The refuge has a specific legislated purpose - to provide a refuge and breeding grounds for migratory birds and other wildlife. The refuge is part of a national network of lands with a mission to conserve, manage, and restore where possible, wildlife and wildlife habitat. Our primary emphasis is on wildlife.

      Recreation occurring on refuges is to be wildlife-dependant and includes six specified activities – hunting, fishing, wildlife viewing, wildlife photography, environmental education, and environmental interpretation. Even these uses must be compatible and occur at a level and a location that does not interfere with our wildlife and habitat conservation mission. Activities which are not wildlife dependent are not to be encouraged on refuges.

      The refuge will soon be developing a long-term (15 year) management plan for the refuge. In the development of the CCP, current and future management and public uses activities will be evaluated in the context of the refuge purpose. The CCP will be developed with input from partners and the public. Your name has been added to our contact list.

      In the mean time, the refuge will continue to enforce no kiteboarding as it has in the past.

      Elaine Johnson
      Refuge Manager


      To

      deerflat@fws. gov, thelake@canyonco. org, elaine_johnson@ fws.gov

      cc

      Snowkiteidaho <snowkiteidaho@ yahoogroups. com>, idahokiteboarding@ yahoogroups. com

      Subject

      New Flier on lake low recreational use restrictions. ..

      Dear Lake Managers:
       
      A friend was windsurfing yesterday at Lake Lowell and was approached by a refuge officer who presented a brochure listing recreational restrictions on Lake Lowell.   It was described to me that the flier listed a new restriction on "Kiteboarding"...a restriction that has not been listed in past years.
       
      I'd like to request a copy of that flier.  Please reply to this email with a scanned copy of the brochure that lists this new restriction.
       
      An article in today's Idaho Statesman describes a new process refuge administration has initiated to arrive at restricting some present recreational uses at Lake Lowell.  The article quoted Elaine Johnson as saying no changes to present uses would be made without public input.  However, kiteboarding has been going on at Lake Lowell since before 2002 (I myself first kiteboarded there in 2002 and I am not the first), and a growing number have been using Gott Point and a launch on the South Side for several years.  In years past no fliers listed kiteboarding as restricted, and no kiteboarders had ever been confronted by officers enforcing a restriction on kiteboarding.  Clearly the addition of kiteboarding to the 'restricted uses' list in the brochure is a new change that, contrary to Elaine's assurances in today's Statesman, was implemented without public input (or input from the community of affected users).
       
      Additionally, I am told that while kiteboarding is restricted on this new list, windsurfing is not, nor is sailing, nor water-skiing or wakeboarding, nor personal water craft.  Surely kiteboarding,  which is essentially sailing on a small board, is without doubt far less disruptive to wildlife and habitat than motorized boats and watercraft making noise, water turbulence , leaking oil and gas into the water way, and spilling trash and beverages into the water, etc.  Also, motorized boats and watercraft travel and impact the entire lake where kiteboarding tends to be locally contained near the few areas that have suitable launch/land features.  Restrictin g the fairly benign activity of kiteboarding while allowing uses whose disruption is enormously more pervasive seems inconsistent and unreasonable.
       
      I would like to appeal this new kiteboarding restriction and ask that it be included in the new rule-making process, and that until that process is concluded, it be treated like all other historical uses that have been allowed even though they may be misaligned with the role of a wildlife refuge (i.e., the restriction be rescinded until/if the eventual process establishes kiteboarding as restricted).  I make this request seeking to avoid unproductive confrontations that otherwise may inevitably happen with reserve officers and other refuge enforcement personnel.  Such episodes could easily waste everyone's time by escalating to court where the inconsistent treatment of historically permitted uses would likely estop the refuge from selectively enforcing a kiteboarding  restriction when far more disruptive uses are permitted.
       
      Please remove the new restriction on kiteboarding, include kiteboarding as a candidate use in the new rule-making process, and please email me a copy of the new brochure that lists all the restricted uses.  If kiteboarding users are involved in the new rule-making process, and it ends up restricted after that process is concluded, I am sure all kiteboarding users would honor that process and its outcome.  Until then, however, I am seeking to avoid wasted time and needless headaches (for refuge personnel and users) that may arise from arbitray imposition of a new selective restriction on an activity that, like many others, has long occurred and been permitted on Lake Lowell.
       
      Regards,
      Jon Bolt
      Boise, Idaho
       


    • Jon Bolt
      Yes, and I don t think sailboarding s illegal there today. I asked the question to get them on record saying sailboarding is permitted . This would open the
      Message 2 of 14 , May 2, 2009
      • 0 Attachment
        Yes, and I don't think sailboarding's illegal there today.  I asked the question to get them on record saying "sailboarding is permitted".
         
        This would open the door to another line of challenge.  Kiteboarding is sailboarding or windsurfing.  There simply is a difference in shape of board and sail.  (Although to the untrained eye, directional kiteboards are about indistintuishable from windsurf board appearance, so maybe its mainly a change in shape of sail).  It's an evolution.  When water-skiing evolved to wakeboarding, involving a new board shape and skylons for getting big air, wakeboarding was not prohibited (nor explicitly approved I bet).  When shapes changed further to tow tubes, that new medium was probably neither prohibited or approved.  If those activities were permitted as acceptable extensions of water skiing, or never explicity approved but permitted, I think we could equally claim kiteboarding to be permitted based on its classification as a form of sailboarding.
         
        Jon

        On Sat, May 2, 2009 at 8:49 AM, Jason Brickner <jasonbrickner@...> wrote:


        Hey John,
         
        Not sure it matters much here, but my neighbor used to windsurf at Lake Lowell in the late 80's/early 90's.  He said they were never told it was illegal.
         
        Thanks for all the work you're doing on this.  Isn't it crazy... we only use Lake Lowell about 10-20 times per year.
         
        -Jason


        From: snowkiteidaho@yahoogroups.com [mailto:snowkiteidaho@yahoogroups.com] On Behalf Of Jon Bolt
        Sent: Saturday, May 02, 2009 8:40 AM
        To: elaine_johnson@...; susan_kain@...; Todd_fenzl@...
        Cc: Boise Sailors Association; idahokiteboarding@yahoogroups.com; Snowkiteidaho; thelake@...; Jon Bolt
        Subject: [snowkiteidaho] Re: New Flier on lake low recreational use restrictions...

        Elaine and Todd,
         
        Thank you both for taking the time to reply to my recent inquiries on behalf of the Boise Sailor's Association.
         
        While I am no expert on public uses of Federal Wildlife Refuges, with regard to regulations for public use I note the Code of Federal Regulations states the following:
         
        Title 50, Subpart C:  Public Use and Recreation;
        Sec. 26.32  Recreational uses:    Recreational uses such as, but not limited to, sightseeing, nature observation and photography, interpretive centers and exhibits, hunting and fishing, bathing, boating, camping, ice skating, picnicking, swimming, water skiing, and other similar activities may be permitted on national wildlife refuges. When such uses are permitted the public will be notified under the provisions of this subchapter C.

        Title 50, SubpartC, Part 26.33 (6):  Special regulations [i.e, for individual wildlife refuges] for public use, access, and recreation are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations. They shall be issued in compliance with procedures contained in the Departmental Manual.
         
        TITLE 50, Subpart C, Sec. 26.34:  What are the special regulations concerning public access, use, and recreation for individual national wildlife refuges?
            The following refuge units, listed in alphabetical order by State and unit name, have refuge-specific regulations for public access, use, and recreation....

        In light of the above, permit me to ask five questions: 

        1)  In the Federal Register, why is there no regulation restricting kiteboarding at Lake Lowell?  26.33.6 suggests posting in the Federal Register is a required element of establishing a special regulation restriction? 
         
        2)  Regulation 26.34 answers: "What are the special regulations concerning public access, use, and recreation for individual national wildlife refuges".  Why does 26.34 fail to contain any special regulations whatsoever restricting uses for Lake Lowell when it clearly details restrictions at other refuges?  26.33.6 states "Special regulations for public use...are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations.  However, while other refuges publish their restrictions in the Federal Register and have clearly codified them in the CFR's, why has Deeflat done neither, including for the alleged ban on kiteboarding?
         
        3)  Title 50, Subpart C, Sec. 26.41:  "What is the process for determining if a use of a national wildlife refuge is a compatible use?
            "...This section provides guidelines for making compatibility determinations, and procedures for documenting compatibility determinations and for periodic review of compatibility determinations..."
        The section goes on to detail the analyses and questions-to-be-answered prior to determining whether a use is compatible or incompatible.
         
        Since for over 7 years a kiteboarding ban was never alleged or enforced (i.e., it was permitted) we'd like to understand the analysis and rationale behind this new treatment of kiteboarding.  Why has it been judged to be an incompatible use when so many other uses are permitted that are vastly more threatening to wildlife?  One of our members mentioned Todd explaining something about "airspace" as the reason for considering a ban.  We'd like to understand the analysis and answers to the types of questions in 26.41 so we may better understand the objective reasons why kiteboarding is alleged to be an incompatible use, when other far more pervasive and incompatible uses are permitted.
         
        4)  What are the procedures in the Interior Department's "Departmental Manual" that are to be followed prior to issuing a special regulation?  Our members have kiteboarded at Lake Lowell since before 2002 (not just a couple of years), unavoidably visible to attentive refuge personnel.  Never over that long period (until last year) did any refuge personnel ever allege potential of a ban and never at any time have they enforced such a ban.  In law, such a "course of dealing" is often sufficient to establish entitlement to a right and a waiver of an enforcer's right to enforce.  Law aside, the observations raised in questions 1 to 3 above, the long pattern of permitting our use, the total absence of any engagement with us to pose questions about or understand our use, and the sudden change in policy (evidenced by change to the refuge brochure) makes us wonder whether the proper procedures were performed prior asserting existence of a ban?  Please furnish the content of the Departmental Manual detailing procedures to be followed prior to issuing special regulations and restrictions, so we may assure all proper procedures were followed prior to establishing any bans. 
        5)  May we also know, is windsurfing (also know as sailboarding) a permitted activity?
         
        Thanks in advance for replying to the above questions.  I will shortly attempt to setup a meeting with Susan and Todd to introduce ourselves and further discuss this issue.
         
        Regards,

        Jon Bolt
        Boise Sailors' Association

        On Fri, May 1, 2009 at 1:20 PM, <Elaine_Johnson@...> wrote:

        I have received your e-mails and would like to take the opportunity to tell you a bit about National Wildlife Refuges and their regulations and management.

        National Wildlife Refuge lands are different than many other Federal lands. Refuges are closed to all activities unless specifically authorized. Kiteboarding has never been authorized or sanctioned. Kiteboarding was added to the list of prohibited activities in our flyer as we have seen an increase in the number of users participating in this unlawful activity. It is not a new restriction. Since refuges are closed to activities unless opened, the list of prohibited activities is not all inclusive. Instead we try to focus on allowed activities. The list of prohibited activities includes activities commonly inquired about or an unauthorized activity we have seen occurring regularly.

        We first encountered kiteboarders a couple years ago and explained to the folks we talked with that kiteboarding was not allowed. There have been several other times over the last couple years that we have encountered and spoken with kiteboarders. This is not a case of an unauthorized activity continuing due to unresponsiveness from the refuge.

        While there are a number of activities occurring on the lake that were not authorized, these activities have been occurring for decades. They will be reviewed and addressed in our up-coming Comprehensive Conservation Plan (CCP).

        The refuge has a specific legislated purpose - to provide a refuge and breeding grounds for migratory birds and other wildlife. The refuge is part of a national network of lands with a mission to conserve, manage, and restore where possible, wildlife and wildlife habitat. Our primary emphasis is on wildlife.

        Recreation occurring on refuges is to be wildlife-dependant and includes six specified activities – hunting, fishing, wildlife viewing, wildlife photography, environmental education, and environmental interpretation. Even these uses must be compatible and occur at a level and a location that does not interfere with our wildlife and habitat conservation mission. Activities which are not wildlife dependent are not to be encouraged on refuges.

        The refuge will soon be developing a long-term (15 year) management plan for the refuge. In the development of the CCP, current and future management and public uses activities will be evaluated in the context of the refuge purpose. The CCP will be developed with input from partners and the public. Your name has been added to our contact list.

        In the mean time, the refuge will continue to enforce no kiteboarding as it has in the past.

        Elaine Johnson
        Refuge Manager




        Inactive hide details for Jon Bolt <idakiteman@...>Jon Bolt <idakiteman@...>



        To

        deerflat@..., thelake@..., elaine_johnson@...

        cc

        Snowkiteidaho <snowkiteidaho@yahoogroups.com>, idahokiteboarding@yahoogroups.com

        Subject

        New Flier on lake low recreational use restrictions...

        Dear Lake Managers:
         
        A friend was windsurfing yesterday at Lake Lowell and was approached by a refuge officer who presented a brochure listing recreational restrictions on Lake Lowell.   It was described to me that the flier listed a new restriction on "Kiteboarding"...a restriction that has not been listed in past years.
         
        I'd like to request a copy of that flier.  Please reply to this email with a scanned copy of the brochure that lists this new restriction.
         
        An article in today's Idaho Statesman describes a new process refuge administration has initiated to arrive at restricting some present recreational uses at Lake Lowell.  The article quoted Elaine Johnson as saying no changes to present uses would be made without public input.  However, kiteboarding has been going on at Lake Lowell since before 2002 (I myself first kiteboarded there in 2002 and I am not the first), and a growing number have been using Gott Point and a launch on the South Side for several years.  In years past no fliers listed kiteboarding as restricted, and no kiteboarders had ever been confronted by officers enforcing a restriction on kiteboarding.  Clearly the addition of kiteboarding to the 'restricted uses' list in the brochure is a new change that, contrary to Elaine's assurances in today's Statesman, was implemented without public input (or input from the community of affected users).
         
        Additionally, I am told that while kiteboarding is restricted on this new list, windsurfing is not, nor is sailing, nor water-skiing or wakeboarding, nor personal water craft.  Surely kiteboarding, which is essentially sailing on a small board, is without doubt far less disruptive to wildlife and habitat than motorized boats and watercraft making noise, water turbulence , leaking oil and gas into the water way, and spilling trash and beverages into the water, etc.  Also, motorized boats and watercraft travel and impact the entire lake where kiteboarding tends to be locally contained near the few areas that have suitable launch/land features.  Restricting the fairly benign activity of kiteboarding while allowing uses whose disruption is enormously more pervasive seems inconsistent and unreasonable.
         
        I would like to appeal this new kiteboarding restriction and ask that it be included in the new rule-making process, and that until that process is concluded, it be treated like all other historical uses that have been allowed even though they may be misaligned with the role of a wildlife refuge (i.e., the restriction be rescinded until/if the eventual process establishes kiteboarding as restricted).  I make this request seeking to avoid unproductive confrontations that otherwise may inevitably happen with reserve officers and other refuge enforcement personnel.  Such episodes could easily waste everyone's time by escalating to court where the inconsistent treatment of historically permitted uses would likely estop the refuge from selectively enforcing a kiteboarding restriction when far more disruptive uses are permitted.
         
        Please remove the new restriction on kiteboarding, include kiteboarding as a candidate use in the new rule-making process, and please email me a copy of the new brochure that lists all the restricted uses.  If kiteboarding users are involved in the new rule-making process, and it ends up restricted after that process is concluded, I am sure all kiteboarding users would honor that process and its outcome.  Until then, however, I am seeking to avoid wasted time and needless headaches (for refuge personnel and users) that may arise from arbitray imposition of a new selective restriction on an activity that, like many others, has long occurred and been permitted on Lake Lowell.
         
        Regards,
        Jon Bolt
        Boise, Idaho
         



      • Gear Daddy LLC
        Kiteboarding is to windurfing As Snowboarding is to skiing Sent from Eddy Petranek ... Kiteboarding is to windurfing As Snowboarding is to skiing Sent from
        Message 3 of 14 , May 2, 2009
        • 0 Attachment
          Kiteboarding is to windurfing 

          As

          Snowboarding is to skiing

          Sent from 
          Eddy Petranek 


          On May 2, 2009, at 10:57 AM, Jon Bolt <idakiteman@...> wrote:

          Yes, and I don't think sailboarding's illegal there today.  I asked the question to get them on record saying "sailboarding is permitted".
           
          This would open the door to another line of challenge.  Kiteboarding is sailboarding or windsurfing.  There simply is a difference in shape of board and sail.  (Although to the untrained eye, directional kiteboards are about indistintuishable from windsurf board appearance, so maybe its mainly a change in shape of sail).  It's an evolution.  When water-skiing evolved to wakeboarding, involving a new board shape and skylons for getting big air, wakeboarding was not prohibited (nor explicitly approved I bet).  When shapes changed further to tow tubes, that new medium was probably neither prohibited or approved.  If those activities were permitted as acceptable extension s of water skiing, or never explicity approved but permitted, I think we could equally claim kiteboarding to be permitted based on its classification as a form of sailboarding.
           
          Jon

          On Sat, May 2, 2009 at 8:49 AM, Jason Brickner <jasonbrickner@ msn.com> wrote:


          Hey John,
           
          Not sure it matters much here, but my neighbor used to windsurf at Lake Lowell in the late 80's/early 90's.  He said they were never told it was illegal.
           
          Thanks for all the work you're doing on this.  Isn't it crazy... we only use Lake Lowell about 10-20 times per year.
           
          -Jason


          From: snowkiteidaho@ yahoogroups. com [mailto:snowkiteidaho@ yahoogroups. com] On Behalf Of Jon Bolt
          Sent: Saturday, May 02, 2009 8:40 AM
          To: elaine_johnson@ fws.gov; susan_kain@fws. gov; Todd_fenzl@fws. gov
          Cc: Boise Sailors Association; idahokiteboarding@ yahoogroups. com; Snowkiteidaho; thelake@canyonco. org; Jon Bolt
          Subject: [snowkiteidaho] Re: New Flier on lake low recreational use restrictions. ..

          Elaine and Todd,
           
          Thank you both for taking the time to reply to my recent inquiries on behalf of the Boise Sailor's Association.
           
          While I am no expert on public uses of Federal Wildlife Refuges, with regard to regulations for public use I note the Code of Federal Regulations states the following:
           
          Title 50, Subpart C:  Public Use and Recreation;
          Sec. 26.32  Recreational uses:    Recreational uses such as, but not limited to, sightseeing, nature observation and photography, interpretive centers and exhibits, hunting and fishing, bathing, boating, camping, ice skating, picnicking, swimming, water skiing, and other similar activities may be permitted on national wildlife refuges. When such uses are permitted the public will be notified under the provisions of this subchapter C.

          Title 50, SubpartC, Part 26.33 (6):  Special regulations [ i.e, for individua l wildlife refuges] for public use, access, and recreation are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations. They shall be issued in compliance with procedures contained in the Departmental Manual.
           
          TITLE 50, Subpart C, Sec. 26.34:  What are the special regulations concerning public access, use, and recreation for individual national wildlife refuges?
              The following refuge units, listed in alphabetical order by State and unit name, have refuge-specific regulations for public access, use, and recreation.. ..

          In light of the above, permit me to ask five questions: 

          1)  In the Federal Register, why is there no regulation restricting kiteboarding at Lake Lowell?  26.33.6 suggests posting in the Federal Register is a required element of establishing a special regulation restriction? 
           
          2)  Regulation 26.34 answers: "What are the special regulations concerning public access, use, and recreation for individual national wildlife refuges".  Why does 26.34 fail to contain any special regulations whatsoever restricting uses for Lake Lowell when it clearly details restrictions  at other refuges?  26.33.6 states "Special regulations for public use...are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations.  However, while other refuges publish their restrictions in the Federal Register and have clearly codified them in the CFR's, why has Deeflat done neither, including for the alleged ban on kiteboarding?
           
          3)  Title 50, Subpart C, Sec. 26.41:  "What is the process for determining if a use of a national wildlife refuge is a compatible use?
              "...This section provides guidelines for making compatibility determinations, and procedures for documenting compatibility determinations and for periodic review of compatibility determinations. .."
          The section goes on to detail the analyses and questions-to- be-answered prior to determining whether a use is compatible or incompatible.
           
          Since for over 7 years a kiteboarding ban was never alleged or enforced (i.e., it was permitted) we'd like to understand the analysis and rationale behind this new treatment of kiteboarding.  Why has it been judged to be an incompatible use when so many other uses are permitted that are vastly more threatening to wildlife?  One of our members mentioned Todd explaining something about "airspace" as the reason for considering a ban.  We'd like to understand the analysis and answers to the types of questions in 26.41 so we may better understand the objective reasons why kiteboarding is alleged to be an incompatible use, when other far more pervasive and incompatible uses are permitted.
           
          4)  What are the procedures in the Interior Department's "Departmental Manual" that are to be followed prior to issuing a special regulation?  Our members have kiteboarded at Lake Lowell since before 2002 (not just a couple of years), unavoidably visible to attentive refuge personnel.  Never  over that long period (until last year) did any refuge personnel ever allege potential of a ban and never at any time have they enforced such a ban.  In law, such a "course of dealing" is often sufficient to establish entitlement to a right and a waiver of an enforcer's right to enforce.  Law aside, the observations raised in questions 1 to 3 above, the long pattern of permitting our use, the total absence of any engagement with us to pose questions about or understand our use, and the sudden change in policy (evidenced by change to the refuge brochure) makes us wonder whether the proper procedures were performed prior asserting  existence of a ban?  Please furnish the content of the Departmental Manual detailing procedures to be followed prior to issuing special regulations and restrictions, so we may assure all proper procedures were followed prior to establishing any bans. 
          5)  May we also know, is windsurfing (also know as sailboarding) a permitted activity?
           
          Thanks in advance for replying to the above questions.  I will shortly attempt to setup a meeting with Susan and Todd to introduce ourselves and further discuss this issue.
           
          Regards,

          Jon Bolt
          Boise Sailors' Association

          On Fri, May 1, 2009 at 1:20 PM, <Elaine_Johnson@ fws.gov> wrote:

          I have received your e-mails and would like to take the opportunity to tell you a bit about National Wildlife Refuges and their regulations and management.

          National Wildlife Refuge lands are different than many other Federal lands. Refuges are closed to all activities unless specifically authorized. Kiteboarding has never been authorized or sanctioned. Kiteboarding was added to the list of prohibited activities in our flyer as we have seen an increase in the number of users participating in this unlawful activity. It is not a new restriction. Since refuges are closed to activities unless opened, the list of prohibited activities is not all inclusive. Instead we try to focus on allowed activities. The list of prohibited activities includes activities commonly inquired about or an unauthorized activity we have seen occurring regularly.

          We first encountered kiteboarders a couple years ago and explained to the folks we talked with that kiteboarding was not allowed. There have been several other times over the last couple years that we have encountered and spoken with kiteboarders. This is not a case of an unauthorized activity continuing due to unresponsiveness from the refuge.

          While there are a number of activities occurring on the lake that were not authorized, these activities have been occurring for decades. They will be reviewed and addressed in our up-coming Comprehensive Conservation Plan (CCP).

          The refuge has a specific legislated purpose - to provide a refuge and breeding grounds for migratory birds and other wildlife. The refuge is part of a national network of lands with a mission to conserve, manage, and restore where possible, wildlife and wildlife habitat. Our primary emphasis is on wildlife.

          Recreation occurring on refuges is to be wildlife-dependant and includes six specified activities – hunting, fishing, wildlife viewing, wildlife photography, environmental education, and environmental interpretation. Even these uses must be compatible and occur at a level and a location that does not interfere with our wildlife and habitat conservation mission. Activities which are not wildlife dependent are not to be encouraged on refuges.

          The refuge will soon be developing a long-term (15 year) management plan for the refuge. In the development of the CCP, current and future management and public uses activities will be evaluated in the context of the refuge purpose. The CCP will be developed with input from partners and the public. Your name has been added to our contact list.

          In the mean time, the refuge will continue to enforce no kiteboarding as it has in the past.

          Elaine Johnson
          Refuge Manager




          <graycol.gif>Jon Bolt <idakiteman@gmail. com>


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          Snowkiteidaho <snowkiteidaho@ yahoogroups. com>, idahokiteboarding@ yahoogroups. com
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          New Flier on lake low recreational use restrictions. ..
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        • Jack Harrison
          It may be best to link both kiting and sailboarding to sailing. Windsurfing may have been initially allowed because it was sailing with a sail on a small
          Message 4 of 14 , May 2, 2009
          • 0 Attachment

            It may be best to link both kiting and sailboarding to sailing. Windsurfing may have been initially allowed because it was sailing with a sail on a small “boat”…called a “board” (back then all boards were longboards). Kiteboarding is sailing with a kite on a board. The kite is a sail with lines, instead of a mast. The board is a very small boat. (will be have to by a permit?)

             

            What would happen if we used our kites while sitting in a boat to sail around the lake. Would we be sailing or kiting? 

             

             = If a “sailor” with a kite (instead of a sail) got a ticket, what would a judge say? 

             

             = If a sailor with a kite on a board got a ticket, and a sailor with a kite in a boat did not get a ticket, what would the judge say?

             

            Anyone interested in doing a little “Kite-boating”?  Who’s got a kayak?  And, maybe we could get our longboards out and do some Kite-longboarding.  (Maybe we need a flotilla on Cinco-de-Mayo!) It wouldn’t take much wind and we could include a bird spotting contest. There a few shore birds I haven’t ckecked-off my list.

             

            Sorry, I can get carried away….but the point is how do we make the point that kiting IS sailing!

             

            Jack

             


            From: snowkiteidaho@yahoogroups.com [mailto: snowkiteidaho@yahoogroups.com ] On Behalf Of Jon Bolt
            Sent: Saturday, May 02, 2009 9:58 AM
            To: snowkiteidaho@yahoogroups.com
            Subject: Re: [snowkiteidaho] Re: New Flier on lake low recreational use restrictions...

             




            Yes, and I don't think sailboarding's illegal there today.  I asked the question to get them on record saying "sailboarding is permitted".

             

            This would open the door to another line of challenge.  Kiteboarding is sailboarding or windsurfing.  There simply is a difference in shape of board and sail.  (Although to the untrained eye, directional kiteboards are about indistintuishable from windsurf board appearance, so maybe its mainly a change in shape of sail).  It's an evolution.  When water-skiing evolved to wakeboarding, involving a new board shape and skylons for getting big air, wakeboarding was not prohibited (nor explicitly approved I bet).  When shapes changed further to tow tubes, that new medium was probably neither prohibited or approved.  If those activities were permitted as acceptable extensions of water skiing, or never explicity approved but permitted, I think we could equally claim kiteboarding to be permitted based on its classification as a form of sailboarding.

             

            Jon

            On Sat, May 2, 2009 at 8:49 AM, Jason Brickner <jasonbrickner@...> wrote:

             

            Hey John,

             

            Not sure it matters much here, but my neighbor used to windsurf at Lake Lowell in the late 80's/early 90's.  He said they were never told it was illegal.

             

            Thanks for all the work you're doing on this.  Isn't it crazy... we only use Lake Lowell about 10-20 times per year.

             

            -Jason

             


            From: snowkiteidaho@yahoogroups.com [mailto:snowkiteidaho@yahoogroups.com] On Behalf Of Jon Bolt
            Sent: Saturday, May 02, 2009 8:40 AM
            To: elaine_johnson@...; susan_kain@...; Todd_fenzl@...
            Cc: Boise Sailors Association; idahokiteboarding@yahoogroups.com; Snowkiteidaho; thelake@...; Jon Bolt
            Subject: [snowkiteidaho] Re: New Flier on lake low recreational use restrictions...

            Elaine and Todd,
             
            Thank you both for taking the time to reply to my recent inquiries on behalf of the Boise Sailor's Association.
             
            While I am no expert on public uses of Federal Wildlife Refuges, with regard to regulations for public use I note the Code of Federal Regulations states the following:
             
            Title 50, Subpart C:  Public Use and Recreation;
            Sec. 26.32  Recreational uses:    Recreational uses such as, but not limited to, sightseeing, nature observation and photography, interpretive centers and exhibits, hunting and fishing, bathing, boating, camping, ice skating, picnicking, swimming, water skiing, and other similar activities may be permitted on national wildlife refuges. When such uses are permitted the public will be notified under the provisions of this subchapter C.

            Title 50, SubpartC, Part 26.33 (6):  Special regulations [i.e, for individual wildlife refuges] for public use, access, and recreation are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations. They shall be issued in compliance with procedures contained in the Departmental Manual.
             
            TITLE 50, Subpart C, Sec. 26.34:  What are the special regulations concerning public access, use, and recreation for individual national wildlife refuges?
                The following refuge units, listed in alphabetical order by State and unit name, have refuge-specific regulations for public access, use, and recreation....


            In light of the above, permit me to ask five questions: 

            1)  In the Federal Register, why is there no regulation restricting kiteboarding at Lake Lowell ?  26.33.6 suggests posting in the Federal Register is a required element of establishing a special regulation restriction? 

             

            2)  Regulation 26.34 answers: "What are the special regulations concerning public access, use, and recreation for individual national wildlife refuges".  Why does 26.34 fail to contain any special regulations whatsoever restricting uses for Lake Lowell when it clearly details restrictions at other refuges?  26.33.6 states "Special regulations for public use...are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations.  However, while other refuges publish their restrictions in the Federal Register and have clearly codified them in the CFR's, why has Deeflat done neither, including for the alleged ban on kiteboarding?
             
            3)  Title 50, Subpart C, Sec. 26.41:  "What is the process for determining if a use of a national wildlife refuge is a compatible use?
                "...This section provides guidelines for making compatibility determinations, and procedures for documenting compatibility determinations and for periodic review of compatibility determinations..."

            The section goes on to detail the analyses and questions-to-be-answered prior to determining whether a use is compatible or incompatible.

             

            Since for over 7 years a kiteboarding ban was never alleged or enforced (i.e., it was permitted) we'd like to understand the analysis and rationale behind this new treatment of kiteboarding.  Why has it been judged to be an incompatible use when so many other uses are permitted that are vastly more threatening to wildlife?  One of our members mentioned Todd explaining something about "airspace" as the reason for considering a ban.  We'd like to understand the analysis and answers to the types of questions in 26.41 so we may better understand the objective reasons why kiteboarding is alleged to be an incompatible use, when other far more pervasive and incompatible uses are permitted.

             

            4)  What are the procedures in the Interior Department's "Departmental Manual" that are to be followed prior to issuing a special regulation?  Our members have kiteboarded at Lake Lowell since before 2002 (not just a couple of years), unavoidably visible to attentive refuge personnel.  Never over that long period (until last year) did any refuge personnel ever allege potential of a ban and never at any time have they enforced such a ban.  In law, such a "course of dealing" is often sufficient to establish entitlement to a right and a waiver of an enforcer's right to enforce.  Law aside, the observations raised in questions 1 to 3 above, the long pattern of permitting our use, the total absence of any engagement with us to pose questions about or understand our use, and the sudden change in policy (evidenced by change to the refuge brochure) makes us wonder whether the proper procedures were performed prior asserting existence of a ban?  Please furnish the content of the Departmental Manual detailing procedures to be followed prior to issuing special regulations and restrictions, so we may assure all proper procedures were followed prior to establishing any bans. 

            5)  May we also know, is windsurfing (also know as sailboarding) a permitted activity?
             

            Thanks in advance for replying to the above questions.  I will shortly attempt to setup a meeting with Susan and Todd to introduce ourselves and further discuss this issue.

             

            Regards,


            Jon Bolt
            Boise Sailors' Association

            On Fri, May 1, 2009 at 1:20 PM, <Elaine_Johnson@...> wrote:

            I have received your e-mails and would like to take the opportunity to tell you a bit about National Wildlife Refuges and their regulations and management.

            National Wildlife Refuge lands are different than many other Federal lands. Refuges are closed to all activities unless specifically authorized. Kiteboarding has never been authorized or sanctioned. Kiteboarding was added to the list of prohibited activities in our flyer as we have seen an increase in the number of users participating in this unlawful activity. It is not a new restriction. Since refuges are closed to activities unless opened, the list of prohibited activities is not all inclusive. Instead we try to focus on allowed activities. The list of prohibited activities includes activities commonly inquired about or an unauthorized activity we have seen occurring regularly.

            We first encountered kiteboarders a couple years ago and explained to the folks we talked with that kiteboarding was not allowed. There have been several other times over the last couple years that we have encountered and spoken with kiteboarders. This is not a case of an unauthorized activity continuing due to unresponsiveness from the refuge.

            While there are a number of activities occurring on the lake that were not authorized, these activities have been occurring for decades. They will be reviewed and addressed in our up-coming Comprehensive Conservation Plan (CCP).

            The refuge has a specific legislated purpose - to provide a refuge and breeding grounds for migratory birds and other wildlife. The refuge is part of a national network of lands with a mission to conserve, manage, and restore where possible, wildlife and wildlife habitat. Our primary emphasis is on wildlife.

            Recreation occurring on refuges is to be wildlife-dependant and includes six specified activities – hunting, fishing, wildlife viewing, wildlife photography, environmental education, and environmental interpretation. Even these uses must be compatible and occur at a level and a location that does not interfere with our wildlife and habitat conservation mission. Activities which are not wildlife dependent are not to be encouraged on refuges.

            The refuge will soon be developing a long-term (15 year) management plan for the refuge. In the development of the CCP, current and future management and public uses activities will be evaluated in the context of the refuge purpose. The CCP will be developed with input from partners and the public. Your name has been added to our contact list.

            In the mean time, the refuge will continue to enforce no kiteboarding as it has in the past
            .

            Elaine Johnson
            Refuge Manager




            Inactive hide details for Jon Bolt <idakiteman@...>Jon Bolt <idakiteman@...>

            Jon Bolt <idakiteman@...>

            04/24/2009 09:38 AM

             

             

            To


            deerflat@..., thelake@..., elaine_johnson@...

             

             

             

             

            cc

             


            Snowkiteidaho <snowkiteidaho@yahoogroups.com>, idahokiteboarding@yahoogroups.com

             

            Subject

            New Flier on lake low recreational use restrictions...

             

             

             

             

            Dear Lake Managers :
             
            A friend was windsurfing yesterday at Lake Lowell and was approached by a refuge officer who presented a brochure listing recreational restrictions on Lake Lowell .   It was described to me that the flier listed a new restriction on "Kiteboarding"...a restriction that has not been listed in past years.
             
            I'd like to request a copy of that flier.  Please reply to this email with a scanned copy of the brochure that lists this new restriction.
             
            An article in today's Idaho Statesman describes a new process refuge administration has initiated to arrive at restricting some present recreational uses at Lake Lowell .  The article quoted Elaine Johnson as saying no changes to present uses would be made without public input.  However, kiteboarding has been going on at Lake Lowell since before 2002 (I myself first kiteboarded there in 2002 and I am not the first), and a growing number have been using Gott Point and a launch on the South Side for several years.  In years past no fliers listed kiteboarding as restricted, and no kiteboarders had ever been confronted by officers enforcing a restriction on kiteboarding.  Clearly the addition of kiteboarding to the 'restricted uses' list in the brochure is a new change that, contrary to Elaine's assurances in today's Statesman, was implemented without public input (or input from the community of affected users).
             
            Additionally, I am told that while kiteboarding is restricted on this new list, windsurfing is not, nor is sailing, nor water-skiing or wakeboarding, nor personal water craft.  Surely kiteboarding, which is essentially sailing on a small board, is without doubt far less disruptive to wildlife and habitat than motorized boats and watercraft making noise, water turbulence , leaking oil and gas into the water way, and spilling trash and beverages into the water, etc.  Also, motorized boats and watercraft travel and impact the entire lake where kiteboarding tends to be locally contained near the few areas that have suitable launch/land features.  Restricting the fairly benign activity of kiteboarding while allowing uses whose disruption is enormously more pervasive seems inconsistent and unreasonable.
             
            I would like to appeal this new kiteboarding restriction and ask that it be included in the new rule-making process, and that until that process is concluded, it be treated like all other historical uses that have been allowed even though they may be misaligned with the role of a wildlife refuge (i.e., the restriction be rescinded until/if the eventual process establishes kiteboarding as restricted).  I make this request seeking to avoid unproductive confrontations that otherwise may inevitably happen with reserve officers and other refuge enforcement personnel.  Such episodes could easily waste everyone's time by escalating to court where the inconsistent treatment of historically permitted uses would likely estop the refuge from selectively enforcing a kiteboarding restriction when far more disruptive uses are permitted.
             
            Please remove the new restriction on kiteboarding, include kiteboarding as a candidate use in the new rule-making process, and please email me a copy of the new brochure that lists all the restricted uses.  If kiteboarding users are involved in the new rule-making process, and it ends up restricted after that process is concluded, I am sure all kiteboarding users would honor that process and its outcome.  Until then, however, I am seeking to avoid wasted time and needless headaches (for refuge personnel and users) that may arise from arbitray imposition of a new selective restriction on an activity that, like many others, has long occurred and been permitted on Lake Lowell.
             
            Regards,
            Jon Bolt
            Boise, Idaho
             

             



          • Tom von Alten
            ... We ll see how that works. You just invited them to say boardsailing is prohibited, and I d say it s an even bet they ll take the invitation. _____________
            Message 5 of 14 , May 2, 2009
            • 0 Attachment
              Jon Bolt wrote:
              > Yes, and I don't think sailboarding's illegal there today. I asked
              > the question to get them on record saying "sailboarding is permitted".

              We'll see how that works.

              You just invited them to say boardsailing is prohibited, and I'd say
              it's an even bet they'll take the invitation.
              _____________
              Tom von Alten http://fortboise.org/
              tva@...
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