Julia Sizek is a writer and anthropologist who studies the California desert and rural land management more broadly. Her work focuses on the politics of land in the California desert, including: the cultural politics of conservation acquisition in the railroad checkerboard, the rhetoric of environmental impact reporting, and the legal geographies of off-highway vehicle use. In addition to this work, Julia has also led the qualitative portion of the 30 year social and economic monitoring for the Northwest Forest Plan. Previously, Julia was a postdoctoral scholar at Berkeley’s Social Science Matrix, running programs, planning events, and interviewing social scientists about their research. Julia also hosted the Matrix Podcast.
In this interview, recorded in Spring 2024, Sizek talked with Marion Fourcade, Director of Social Science Matrix, about her paper “Impossible evidence: The legal dismal cycle of regulating off-roading in the California desert,” published in Geoforum. The paper traces a 40-year battle over off-road vehicle use in the California desert through the concept of “impossible evidence,” evidence that is legally demanded but cannot or does not exist. In a forthcoming summer 2025 article in Environmental History, Julia builds on this story by detailing the rise of the “Bureau of Livestock and Motorcycles” in California.
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Transcript
[MUSIC PLAYING]
WOMAN’S VOICE: The Matrix Podcast is a production of Social Science Matrix, an interdisciplinary research center at the University of California, Berkeley.
MARION FOURCADE: Hello, Julia. Welcome to the podcast.
JULIA SIZEK: Thanks for having me.
MARION FOURCADE: So, Julia, today’s episode is a bit unusual. Today, actually, you are our guest. But for the past three years, you’ve been the person doing the interviewing at Matrix. You started at Matrix as a research assistant while you were finishing your PhD and then as a postdoctoral researcher since July 2022. And over nearly three years, you’ve produced a series of extraordinary features for us.
You have interviewed scholars from a wide range of disciplines, both faculty and graduate students. You have done visual interviews and written interviews and podcasts. So our audience knows you very well. They know you as a master interviewer, and they know you, of course, as the indispensable person who organizes and runs our programmatic events.
But in fact, they probably don’t know that much about you and about your research. So today, we want to remedy that gap. And we want to erase that ignorance. So today, for once, the roles are reversed. Today, you are the interviewee.
And my name is Marion Fourcade. I am the Director of Matrix. And I have the pleasure of interviewing you. We’re finally getting to sit down and talk about your research. So let us begin. How about I let you introduce yourself.
SIZEK: Yeah, so I mean, thanks for the kind introduction. And also, yeah, it’s exciting to be able to share my work. So outside of the Matrix responsibilities that I have, I have been working in the long term on a research project about the California desert.
My PhD was in cultural anthropology from the department here at Berkeley. And in my dissertation, I examined the land ownership checkerboard in the California desert, which is, in short, this imperial land ownership pattern that long outlasted its imperial transcontinental railroad purpose and persisted all the way until the 1990s, and in some areas, through till today.
And so I had done this large research project on that for my dissertation. And most recently, my attention has turned to the history of off-road vehicle use in California, which I think is what we’re going to talk about today.
FOURCADE: Yes, indeed, today, we said we would discuss a wonderful piece you recently published in Geoforum, which is titled, “Impossible Evidence.” So let me begin where the article begins, really. You write, right at the onset in the introduction, that it all started with a fateful dinner you had with an environmental activist named Talia back in 2017. So what were you researching at the time? And what did Talia say that piqued your interest?
SIZEK: Yeah, so I was working on my dissertation at the time, which was really focused on this checkerboard land ownership pattern and how environmental groups and Native American groups were working to try to figure out the problems of the checkerboard. I had also been doing a pretty large project that resulted in a couple of publications about the Cadiz Water Project, which was a groundwater project that lays underneath this land ownership checkerboard.
And when I was meeting with Talia, she was the perfect stand-in for an anthropologist or a researcher first coming into the field because, although she was not new to environmental issues, she was new to the California desert. So she had this view of someone who was both extremely enthusiastic about her new job, but also didn’t quite know the ropes yet, which made her the perfect stand-in for me.
And when she came in, she was telling me— we had gone to do these different meetings. And we had tried to recruit different local businesses to the California Desert Monuments Coalition on behalf of different environmental groups. And then we had this dinner because she just wanted to meet more people who were out in the desert.
And she was telling me about one of the more interesting parts of her new job, which was this thing called WEMO, which is the West Mojave plan, which is abbreviated W-E-M-O. And she was so enthusiastic about this project. But what was so interesting to me was that it seemed like her enthusiasm was not reflected by the broader environmental community.
And she told me, you know, I’m really enthusiastic about it. But besides me, the only people involved are crazy people and lawyers. And I thought, what could be so — such a large problem and something that was so long lasting, as I found in my research, but was ignored by the broader environmental community and also ignored by people in general?
So what was the problem that was so large that could not be solved ,and also was so large and so long-lasting that it could become boring?
FOURCADE: So why was it so invisible? I mean, can you explain a little bit, you know, why it’s been so hard to regulate off-road vehicles using the California desert? I mean, maybe you can explain what WEMO was about, right? Why it’s been so hard to regulate off-road vehicles using the California desert and why, in fact, it’s been such a contentious issue for over 40 years, but a contentious issue that remains fairly, invisible to the general public?
SIZEK: Yeah, I mean, I think there are a couple of theories as to why this issue, off-road vehicle use in the California desert, has become really invisible, or maybe in some ways has always been really invisible. One of the reasons, of course, is that the California desert is considered to be a backwater of the state. And so a lot of people ignore what happens in the desert. And so it doesn’t really become a top news story in that way.
But I think the broader reason why it became an issue that is sort of shunted to the side for environmentalists, as well as for other groups, is just how contentious it is. So actually, just this week, I was talking to someone who worked as a biologist for the BLM in the 1970s. And one of the things that they were telling me was that a lot of people avoided this issue, even back then, because it was considered to be ugly, and therefore, something that you didn’t want to become involved in if you didn’t have to.
Other things that I’ve found in the archives is that a lot of people avoid the issue of off-road vehicles because it’s so contentious, as well as because it is the sort of thing that you have to have a certain kind of temperament for.
So one letter I saw in the archives, I saw a different biologist had written, “I just don’t have the temperament for this work,” and said, you know, “I’m going to go off and do my own different thing.”
So that’s, on the one side, why people might ignore it. But the reason why it has become, I think, such a contentious issue is about this— something that is actually very familiar to us in other realms. And this is the problem of what might be called regulatory lag, that you have a new use of an area and that you need to figure out how to regulate it. But by the time you do regulate it, it may have already become too late. There may have already been patterns established that are really difficult to break.
And this is actually a classic problem in transportation. So when cars first came on the streets in the 1920s, there were lots of debates about who had more rights. Should cars have rights? Should horses have rights? Should pedestrians have rights? More recently, even on UC Berkeley’s campus, we can think about when Uber and Lyft started dominating the campus roads and the problems that this caused for the university.
So this, in many ways, I think is actually a classic problem. And one of the reasons why it became so contentious in the California desert is that the rise of off-highway vehicle use in the California desert— and at this period in time, this is mostly motorcycles for technological reasons— it really coincided with the environmental decade.
So the great rise of off-road vehicles in the California desert was during the 1960s, starting in 1969, 1970. This is when you start having laws like NEPA, the National Environmental Policy Act, that begin to regulate a lot of environmental issues in the US.
And this coincidence of this new use that becomes extremely popular with the environmental decade means that you have this new awareness of detrimental effects of humans on the environment at the same time that you have a bunch of people who are engaged in this new recreational activity that is very bad for the environment. And it doesn’t really end there, either.
One of the things that I think is really fascinating about the off-road vehicle story is that the cultural side of off-road vehicles actually ends up aligning with a very unusual — or what I find to be an unusual and interesting time in the late 1970s, where environmental groups are getting a lot of pushback from what would later be called “wise use groups,” that are trying to promote the free-ranging use of the desert.
And so in a sort of unusual moment of political alignment, you have this group of off-road vehicle activists that become engaged and aligned with other movements in California that are considered to be more right-wing backlash movements, like the movement for Prop 13, which was led by Howard Jarvis, which is a famous, I guess, anti-property tax movement that still persists today in California. So in many ways, I think that dirt biking is sort of like a microcosm of these other problems — and this broader world that was the 1960s and 1970s.
FOURCADE: That is fascinating. So you are telling us that we have this clash between the environmental and then the recreational, both of whom have sort of a particular view of freedom and the relationship to nature, but which tend to be sort of opposed on sort of political grounds. And regulators are essentially constantly playing catch up with both of these. And they’re trying to both satisfy one and, but also preserve the other, and constantly trying to contain what’s going on the ground.
So let me go back a little bit to the case itself that is the center of your paper. It is a case called the CBD versus BLM — BLM, that’s the Bureau of Land Management — it’s really the most important case for the story you want to tell. So can you summarize a little bit this particular case? And maybe you want to go back to the history before it, because there’s an important case before that involves precisely these recreational groups. And can you explain to us why you see this case as a pivotal moment in the regulation — or rather the absence of regulation — of off-road vehicles in the California desert?
SIZEK: Yeah, CBD vs. BLM, which is the Center for Biological Diversity, a famously litigious environmental group suing the Bureau of Land Management, is — it’s one in a string of cases. And so I’m examining not the most recent one, which is actually currently in litigation, but the one prior to that, which was decided in 2009. And this string of cases has been about WEMO, the West Mojave Transportation Plan.
And what WEMO is all about is trying to determine how many miles, and where those miles are, of off-highway vehicle trails there are in this one area in the California desert, the West Mojave. And this, in some ways, it seems like this should be like an easy thing to solve. You want to determine, this is where people can go. This is where people can’t go. But this is actually a much thornier issue, as you can see, if you look through the records of this court case. And in many ways, I would argue that this case really began in the early 1970s, which is before, I think, many people would say it began.
But the reason why I say this is, as I mentioned previously, there is this regulatory lag problem in the California desert, where in the late ’60s, you have a ton of people coming out there, just riding their motorcycles wherever they want. And then in the late 1960s, in 1968, the Bureau of Land Management says, no. We’ve got to figure out what to do about this. They put exclamation points in their bureaucratic report saying, we need to figure out, something must be done.
And when they do this, they end up coming up with this plan in 1973 called the Interim Critical Management Plan, where they set out a list of places where people can go and say, this is where you can ride. This is where you can’t ride. This is where you have to stay on the trails that have already been established. This is where that is not necessary. This is where you can’t go at all.
And this plan, the 1973 plan, ends up getting sort of sucked up and spit out again into a new planning process, which is one that’s mandated under FLPMA, the Federal Policy Land Management Act of 1976, which is also the organic act of the BLM.
In short, what this means is that, prior to 1976, Congress had not told BLM what to do. There were no real rules governing BLM’s role as a federal agency. So from 1946 through 1976, there really were not formal responsibilities for the organization. In 1976, they say, here is what we want you to do.
And one of the other things that FLPMA does, in addition to giving the rules to BLM, is it also says, the California desert is an important and special place. It establishes this zone called the California Desert Conservation Area, that is subject to a special planning process, which goes from 1976 through 1980.
And then in 1980, they say, OK, we made a plan. We have now decided, in part, based on this 1973 plan, where dirt bikes can go, where they can’t go, where you need to stay on trails, and where you don’t need to stay on trails. And the passage of this 1980 plan allows environmental groups to sue the BLM and say, we disagree with your plan. We don’t think that you planned right. And this is what ends up leading to this current case that’s still happening today.
And in this string of cases, the basic issues at hand are that the Bureau of Land Management puts together a plan. They say, this is where we think everyone should be allowed to go. And environmental groups say, hey, no, actually, we think that’s too many — or too many trails, or too many miles of trails. And then this gets adjudicated through the court system.
And a really important part of this is that this is all enabled through these public participatory processes that really take off during the 1970s, and through NEPA or through other environmental legislation, and depend critically on this thing called the Administrative Procedure Act, which is the formation of administrative law in the federal government, and allows for entities to sue based on rule-making decisions that the federal government makes.
So under these sets of laws, CBD says, we disagree. We think that you shouldn’t have as many miles. The grounds for doing this is that BLM in 1980 said, this is the number of trails we’re going to have in the West Mojave. And we’re going to stay attached to this baseline from 1980.
The problem is, you actually can’t know where these are from 1980. And the reason for that being is that, over time, people will decide to go off the trail. And they will create new trails. So if you don’t have an accurate map from 1980, then that means that the trails that are out there now are not the trails that were out there in the past.
The Bureau of Land Management gets stuck with this 1980 standard. But they don’t actually have a map. They don’t know where people went in 1980, which leads to them to this problem where you basically have ceaseless litigation telling them to go back to this 1980 standard that can’t exist. This is the problem that I call in the article “impossible evidence.”
FOURCADE: Yes, so this question— let me go back to this question of impossible evidence. And you explain in the paper, actually, there’s sort of a footnote in the paper that explains why it arises. And it arises because, in the designation of the California Desert Conservation Area, any use plan proposed by the Bureau of Land Management must reference the 1980 trail baseline for off-road vehicles, right? And that specific mention in the document, which is not everywhere in all environmental planning documents, but it is there in this one document, the California Desert Conservation Area — you say that this specific mention is both a blessing and a curse for the cause of environmentalists.
It is a blessing because it gives environmental groups this legal hook. But on the other hand, it is a curse because this question of the 1980 baseline that the BLM must rely upon is, in fact, an unsolvable problem since the baseline doesn’t exist. They don’t have these maps. So can you explain a little bit why these maps don’t exist, why this evidence is so impossible? And then I would like you to go a little bit further in describing your analytical framework, because I think you have a whole series of concepts here that are very interesting. Impossible evidence is one of them. But the other one is what you call the “legal dismal cycle.” And you explain how impossible evidence is precisely what starts this legal dismal cycle that can never end. Can you explain the relationship between these two concepts?
SIZEK: Yeah, so this is a very– I think, a very interesting and thorny question because it’s really at the center of this case. But it’s quite unusual in the broader context of off-highway vehicle planning in the United States. So probably the most famous case about off-highway vehicles is this case SUWA versus Norton, which is the Southern Utah Wilderness Alliance versus Norton, who was the Secretary of the Interior at the time. That was decided in 2004.
In this case, it was determined that basically, that the planning process, which had not taken place to determine where vehicles could go, that environmental groups could not sue to make this planning process happen. And it was precisely because there was no plan that there were people going wherever they wanted, and there were no rules as to where people would go. So people would go wherever they wanted.
And in contrast, in the California desert, you have this sort of unique world where there are actually tons of rules. You have to abide by this 1980 baseline, a map that was never made, basically, because there was not enough manpower at the Bureau of Land Management to make these maps, to survey and to complete these surveys.
And in addition to the lack of manpower problem, there were additional issues like the fact that you can’t use satellite imagery to determine where these trails are. And so even the satellite imagery that they have from the late 1970s and the early 1980s can’t be used because there are many natural features of the California desert that appear to be similar to off-highway vehicle plans.
So when they can’t form this plan in the early 1980s, this ends up having this ripple effect all the way to the present, because since the BLM has to abide by this old baseline — but they don’t have this information — this means that every time they make a new plan, the environmentalists, in their lawsuits, can say basically, well, you should go back to that plan.
And every time, this basically is just a new iterative loop, what I call the “dismal legal cycle.” And this is really building off of my conversation with environmentalists and with environmentalist lawyers, some of whom are involved in this case or earlier iterations of this case, who told me that they always had to relitigate plans.
They said, well, the first time the BLM will come up with an OK plan. And then they would get the new version of the plan. And environmentalists would be unhappy. They would decide to sue again on different grounds in order to get the plan to just improve a little bit every time. And this is also how you end up with these long cases where you just have cycles of the same issues coming up and over— I guess these same issues appear over and over again.
The other inspiration for coming up with this idea of the legal dismal cycle was actually early off-road vehicle use. So a early sociologist of off-road vehicles, Diana Dunn, wrote this article for the magazine Parks and Recreation, which was actually for recreation planners, which was an emerging field at this time, where she described what she called the dismal cycle of— she used a different term than off-road vehicles, but essentially, the dismal cycle of off-road vehicles.
And what she said was this dismal cycle is you have a bunch of users of this new technology, and they want to go to use their technology on lands. They get kicked off of private lands because private landowners don’t want them there. And so they get pushed out onto new lands, where they inevitably also get into conflict, for example, with ranchers. Or they might get into conflict with other recreationists. And this means that eventually, a land manager will step in. And either the land manager will set down some rules where they say, this is where you can go, this is where you can’t go. Or the land manager will just say, nope, you can’t come here anymore. In the case that they decide that they can’t come here anymore, then this sort of same cycle repeats elsewhere where the users decide to go.
In the case that they stay, you have what motorcycle groups have called the 1% problem. You might think of one percenters as being part of Hell’s Angels, if you’re in on the motorcycle history. But the one percenters also apply to this group of basically unorganized or unaffiliated motorcycle users who feel like they don’t need to follow the same rules as other people.
So these are the people who are probably making new trails, doing this thing called route proliferation. And in this dismal cycle, when this route proliferation happens, then you get to another tipping point, which is where the land manager just says, man, we cannot deal with all these motorcyclists. We have to do something about it. And they end up in the same problem they had before, deciding, are we going to try to regulate them? Or are we going to kick them off entirely?
In Diana Dunn’s version, this ends up repeating, particularly as motorized users are becoming more popular, and this activity is becoming more popular during that time period. So there are always more users than there are places to go ride. In this case, what I find in the legal dismal cycle is that this cycle of repeating litigation is occurring. And it’s essentially a debate between land managers and people who care about the land about motorcyclists.
So actually, motorcyclists and off-highway vehicle users are in some ways left out of this new legal dismal cycle, where the effects on the ground are not really entirely relevant for the proliferation and continuation of this litigation over time, which sort of leads us into this really sad place, where the environmentalists or the hope of the environmentalists that this litigation is doing something – there’s a real question about whether or not the litigation is actually preventing erosion or other problems that off-road vehicles can cause on the desert. So, “is litigation a worthwhile strategy?” is one of the questions that I had while I was writing this paper.
FOURCADE: Yeah, so you’re showing this really interesting disconnect or decoupling, as sociologists would say, between what is going on in the court, which is sort of a fairly abstract debate about essentially, does the BLM comply with this impossible standard from 1980, and then on the ground, this constant change, this constant proliferation of routes. And indeed, every BLM survey shows that there are more routes than in the previous survey. So you see this proliferation on the ground.
So what I wanted to ask you is, so why these WEMO — or these successive WEMO plans — are being litigated? How does the BLM concretely enforce any standards? Since nothing has been accepted, everything is in litigation, everything is up in the air, what is happening concretely on the ground? And how is the BLM trying to regulate or to enforce any kind of rule?
SIZEK: So it is very difficult for the BLM. And I will be among the many to say that I do not envy the BLM’s position here. And I think it’s actually incredibly difficult. And of all of the groups that are involved in this, I think I probably have the most sympathy for the BLM, because they are put into this rather impossible position where they are trying to act in a world where the rules are sort of all set up against them. And it makes it really challenging for them to do anything.
Another challenge for the BLM is that they are trying to prevent future proliferation. But they can only really do this in cases where the re-proliferation is rather extreme. So one of the images that I use in the article to demonstrate this is there’s one area around Ridgecrest, which is part of this WEMO plan, where you can just see the map of– there are two maps. One is a map of the designated routes and trails allowed under WEMO, and then the other is of what they call “transportation linear disturbances,” which are where people have gone, but not part of the system.
And if you look at it, there’s one area where it’s just almost entirely red. It’s almost entirely full of these transportation linear disturbances. And it butts up against this wilderness area, which is, by law, an area where you are not allowed to go on your off-road vehicle. But you know, based on looking at this map, that there are tons of people who are just crossing over this wilderness boundary.
And as you look at maps like that, you can see that the BLM is both hamstrung in the enforcement, but under these lawsuits, some of the interim plans sort of between the lawsuits have been to allow them to have limited enforcement in some of the areas that are impacted the most and also in areas where the impacts are most detrimental for wildlife.
So there’s one area south of Barstow where there was an interim plan put in place that included some fencing to prevent further route proliferation. But this is very much the exception. And so they have this real challenge where they can do a limited amount of stuff, and they can do a limited amount of enforcement, but ultimately, they’re hamstrung by the fact that the Bureau of Land Management, of course, is not a very wealthy agency and doesn’t have a lot of money. And at the same time, without any final formal plan in place, the only things that really get solved are the most dramatic problems, and these cases where I think everyone, including a lot of off-road vehicle advocates, would agree that something has to be done.
FOURCADE: So it seems, and indeed, you argue in the paper that both environmental groups and the Bureau of Land Management are expending enormous amounts of resources in litigation. And these resources could have been better used elsewhere, for instance, in enforcing these regulations for the BLM, having more people on the ground. So I wanted to ask you a little bit, how did the people that you interviewed, people from the BLM, but also people from environmental groups, talk to you about this? Are they possibly reaching the paradoxical conclusion that the cause of environmentalism might have been better served if this litigation was not taking place?
SIZEK: It is a very complex, and as I mentioned before, sort of an emotional issue for a lot of people. Some people think that they don’t have the constitution to deal with this kind of issue. And that’s also what I found among people at the Bureau of Land Management and environmental activists, both who worked on this case — and I think why Talia noticed that the only people engaged in this were what she called “crazy people and lawyers.”
Because this has been such a long standing litigation, and also because it has required such enormous amounts of energy on the part of the Bureau of Land management, environmental groups, and many others, everyone is very exhausted by this process.
One of the things that actually really inspired me to write this paper, and to write about this issue more broadly, was I was reading through this court case from 2009, and in one of the footnotes, they have this quote from a BLM employee in a previous iteration of this lawsuit where he is explaining what’s happening. And he, in this quote, he basically says, for the sake of my sanity, this is what I’m going to tell you. And I think it was a very telling moment, where everyone who has been engaged in this issue has been burned many times, or perhaps they have just found this issue to have been going on for so long and to be so intractable and to feel like there has been no progress made on it, that the only answer is to be exhausted or to abandon it altogether.
And I certainly found this in the case of when I was working with BLM employees, who would frequently try to sidestep the issue of WEMO as much as possible, in part, because they didn’t want to get caught saying the wrong thing. They knew how thorny it was and how complex it was. And so the best way to talk about it was to not talk about it, which is also the case for environmentalists.
So for the people who I interviewed for this article, no one agreed to go on record with their name. And one of the people, in fact, told me, you can’t go on record with my name, because if people at my organization found out what I told you and I said something wrong, then I would be in big trouble.
And I think this is very indicative of the broader issue of off-road vehicles, where there are a lot of people who feel — and I think on both sides, this is true — that there is no trust between the environmental community and then between off-road vehicles and between the government. So everyone feels like they’re in an antagonistic relationship, which doesn’t end up solving the problem.
FOURCADE: Yes, I mean, that’s pretty clear that nobody is satisfied. And I guess the only people who are still continuing to do pretty much whatever they want are the people who are sort of riding these motorbikes. I mean, it seems like that’s the story. That’s the big story underneath your article. Is that a fair assessment?
SIZEK: Yeah, I think that one of the things that’s really interesting about this problem is that, to a certain extent, even though everyone is pretty antagonistic toward each other, I think there are things that the three main groups — that being the government, environmental groups, and organized off-road vehicle coalitions — can agree on, they actually can agree on a fair bit. But the people who are not part of this agreement are folks who are not affiliated with these groups, and also people who maybe are affiliated with the groups but don’t feel bound by the obligations of taking care of the environment or treading lightly or following the rules.
And this means both that you have this automatic scapegoat, where everything can be blamed on the bad apples that are rotting out the rest of the barrel, but also that the bad apple problem, I think, is relatively real and having real impacts on the desert, as well. So it’s both a way to excuse blame or to set it aside at the same time that like, yes, there are actually people who are cutting down fences and deciding to trespass. And that’s on them.
Ultimately, because the Bureau of Land Management doesn’t have a lot of funds, the enforcement is extremely low in a lot of these areas. And a lot of people know that they can get away with things.
So in the early stages of this project, one of the people who I interviewed was Rick Sieman, who recently died, who was a famous off-road and, more specifically, motorcycle advocate in the California desert. He actually might not like being called an “advocate” because I think he would rather prefer being called an activist.
And one of the things that he did, and he told me about rather extensively, though he thought some of the details were perhaps not suitable for my young female ears, were about instances when he would cut down fences in the desert and go riding where he wanted, or when he rode with the “Phantom Duck of the Desert,” which was this man, Louis McKey, who organized a so-called “unorganized ride” to protest the closure of a famous cross-country race course that went from Barstow to Vegas.
And people like Rick were extremely involved in protesting and creating a movement of people who are willing to break the rules and ultimately got away with it. So in the late 1970s, Rick and Louis, as the Phantom Duck of the Desert, were both prosecuted by the US government for planning and staging this illegal protest ride. But ultimately, the judge, at the end of the decision, said, well, we are not going to actually ruin your lives by making you subject to these rules. It seems like the judge basically said that he didn’t want to ruin Louis’s or Rick’s lives by making them subject to the law, which I think is extremely indicative of how a lot of these people were treated at this time, which it was just a slap on the wrist for doing the wrong thing.
And this actually — the result of this case, in part — made people like Rick and people like Louis, the Phantom Duck of the Desert, into these heroes and these folk heroes of the late 1970s during this more conservative backlash to a lot of the environmental decade.
FOURCADE: So what is the effect of all of this in the long run? We’ve talked a lot about the people. We’ve talked about the people at the BLM. We’ve talked about the environmentalists. You just talked about the off-road vehicle coalition members. But we haven’t talked really about the desert itself. So what happened to the desert during that time? And can you talk a little bit about the ecological impact that this proliferation of off-road trails is having on these ecosystems?
SIZEK: So one of the biggest challenges of this is that, at the very beginning, when all of this was starting, is no one really knew what the impacts of off-road vehicles were on the California desert. And a lot of the earliest research, which I am right now working on another paper that is about the history of ecological research of the impacts of off-road vehicles, one of the things that they found is that there are tons of erosion problems. But they ultimately were looking at all of these issues once there had already been widespread use. So it was more, instead of having before and after snapshots, they were really comparing unused areas to used areas.
And we know about the impacts of off-road vehicles on the California desert and elsewhere really came out of this crucible of research in the 1970s, which, in many ways, was spearheaded by this soil scientist, Howard Wilshire, of the US Geological Service, who wanted to try to figure out, what are the impacts that we’re having on this land? What are these anthropogenic uses — anthropogenic recreational uses — having on the California desert?
The other challenge of this later having the research happen after the fact is that, by the time this research is happening and by the time that researchers are realizing that the impacts are long-lasting and perhaps irreversible in many areas, that it’s already too late. There’s already been a lot of use. And when people are trying to solve this problem, it’s maybe not a problem that can be solved anymore because of the continuing proliferation of use in the California desert and elsewhere.
FOURCADE: So let me try to draw out the big payoff of this research or payoffs of this research. In fact, I see a little bit of James Scott in your work. I think your work speaks to the contradictions of the high modernist state, which must try to frame reality from above in ways that can never contain life on the ground, except that in your case, you flipped Scott’s logic. In some way, you wish high modernism would succeed, right? So what do you think of that? Is that one way we can understand your work?
SIZEK: I think you’re exactly right in pointing toward James Scott and his work on the high modernist state, because one of the biggest challenges overall in the California desert, and I found this a lot in my research on the checkerboard as well, is that there’s basically a lot of imposed rules from the top that don’t really match what’s happening on the ground at all.
And in this case, I think that everyone would agree that there would be many problems solved if the state had done its job in 1980. If they had made this map in 1980, then I think there would be significantly less conflict over this issue because they would have something to go back to. But the lack of this does both point to the limits of the state as well as to what I think is the broader issue here, which is the limits of administrative law as a way of deciding environmental issues.
And in my opinion, I think that administrative law is actually becoming one of the most important parts of regulating the relationship between the courts, Congress, and the executive branch, which would include executive agencies like the Bureau of Land Management. So to quickly go back to, what is administrative law, and why should you care about it? Administrative law is a set of rules through which groups like the Center for Biological Diversity can make these cases to the government that they have been harmed in this plan-making process. And then they can say, you need to go back to the plan. You need to follow these steps all over again, one by one.
And administrative law is basically the set of rules by which— administrative law is the set of rules by which executive agencies make these plans. So there are a number of steps. And then each agency has to follow these step by step. In these court cases, environmentalists will say that agencies chose to ignore some important or critical piece of evidence. Environmentalists also might say that they didn’t follow their rules, which is, in this case, what happened. They didn’t follow the rule that they were supposed to base their current numbers off of these past numbers.
And this administrative law strategy has really been quite central to a lot of environmental litigation in the United States, obviously, since Sierra Club versus Morton, which was decided in 1972, and was really considered the beginning of environmental law at the federal level.
Today, however, environmental law is actually— and administrative law is actually taking an opposite tack. So instead of being about increasing the power of federal agencies, which arguably, this is about doing, the environmentalists want the BLM to be more active. They want them to do more things in the desert. They want them to prevent more people from going off road.
Administrative law in the environmental context today is actually moving in a quite different direction, which many find to be equally disturbing. So one of the more recent cases of this has been in the West Virginia versus EPA case, which was decided in 2022 by the Supreme Court, which was about this thing called the Major Questions Doctrine. More or less, the Major Questions Doctrine is a question about what agencies are allowed to decide.
Are agencies allowed to make little tiny rules? Or can they make big rules? And if they can make big rules, at which point is a rule too large that it needs to be decided by Congress, rather than by the agency? You can quickly see how this becomes a balance of power problem where Congress can make some decisions, agencies can make some decisions, and then the court is deciding between these two, who has the authority to make which decisions?
In this West Virginia versus EPA case, what happened was that the courts decided that the EPA had overstepped its boundaries. It was trying to do too many things without direction from Congress. Essentially, they were saying EPA, do less. And in contrast, environmentalists have always been trying to say, in these court cases, EPA, do more.
This represents sort of a broader turn in the Supreme Court towards a more conservative bent. And it also points to the way that Congress, by arguably not doing its job — many people have said that this current session of Congress is the least productive session of Congress in history — that they are leaving a lot of things open.
And then this means that the other two groups, branches of government, the courts and executive agencies, are taking on a lot of these responsibilities that Congress previously had. But if the conservative strategy is to basically get rid of the administrative state and to get rid of administrative responsibilities, then one of the best ways to do this is, in the courts, to say that they don’t have the authority to do anything.
So I think this is part of a sort of broader conversation about the role of administrative law and environmental law in thinking about our current issues and how we decide to solve environmental problems at the federal level.
FOURCADE: That is, I think, an extremely powerful finding, the notion that judicial review becomes the way by which the regulatory state is undermined in this country. So in some way, your finding speaks to the much broader set of issues.
You’re looking at this very small case in the California desert. It’s, in some ways, a historical case. But you’re showing how it contains within itself the germs of what is actually to come and what we are seeing today being on full display with the cases that are being decided by the Supreme Court in a direction that completely tends to undermine not only environmental regulation, but regulation in many other— potential regulation by many other public agencies.
So what do you think environmentalists should do? Do you think there are better remedies out there, are there other ways in which environmental regulation or environmental— pushing forward the cause of environmentalism, are there any better ways in which it could be achieved?
SIZEK: Yeah, so this is a great question, in part, because it is one that is really challenging for me. And one of the big challenges for me in writing this paper was really thinking about how a lot of this is quibbling about strategy. It’s a question of, is this the best strategy? Is this the best way that environmentalists can be using their limited time and resources? And should we be spending so much time basically debating the miles of trails that are put in this BLM plan? Or are there more useful strategies and means to go about approaching this problem?
In terms of thinking about this turn from litigation and basically how environmentalists suing the government used to be a way to get the government to do more, but now, it seems like increasingly, attempts to sue the government are actually about getting the government to do less or result in the government doing less and abdicating a lot of authority, I think this is obviously a broader problem that environmentalists and I, certainly, cannot change alone.
It also — I think there are a couple of paths forward that can help us think about this issue a little more. One of them, I think, is about enforcing and actually the role that enforcement has for the Bureau of Land Management as a chronically understaffed agency. What would happen if the BLM actually had power to do more enforcement activity, which is something that they have been asking for since the 1960s? And although they have the authority to do that, they’re often spread really thin on the ground.
I know that I was — in talking with a lot of BLM’s employees, one of the things they would frequently tell me is how many acres they were responsible for in their position. And they would often phrase this in millions of acres. So for example, one archaeologist who I spoke with said, well, I’m in charge of 5 million acres. And that’s about the size of Massachusetts. So it’s a pretty large area to be responsible for.
So one direction I think is actually pursuing enforcement. And I think another direction to think about is to actually move back to some of the older models that we have already tested out and, in some cases, have failed for managing off-road vehicle management. So this would be strategies like returning to empowering some of these local boards, which emerged out of grazing committees in the 1960s into multiple use committees, where you are actually bringing everyone together in hopefully a less antagonistic setting so that they can work together toward solving these issues.
And ultimately, it seems to me like the current solution to these problems is not going to be a federal solution, which is what I think a lot of people have used for many years as they’ve just turned to the federal government to ask them to do things. It seems like this might be a moment in which more local action could be useful until perhaps the tides turn again.
FOURCADE: So now taking this demand for alternative perspectives back to the case that preoccupies you in this paper, have you thought about the possibility that your article might be used in subsequent litigation to show precisely that the BLM is being asked to complete an impossible task, to show that to a judge and try to find some other way of adjudicating the problems of off-road vehicles?
SIZEK: One thing that is actually quite helpful for me on this particular issue is, as this case has progressed, one of the things that BLM has been told is basically that the judges understand that they are under significant duress and that the thing that they have been asked to do is more or less impossible. And therefore, the judge has actually allowed them to eliminate the baseline as a justification. And the baseline is no longer going to be relevant moving forward. However, they do have to justify how whatever they have selected is good.
The BLM is not entirely off the hook, though. Even though the judge has said that the baseline doesn’t need to be used in the future, they still have to justify any movement that they have made from this baseline number, which is rather small, toward any new number that they might present.
One of the challenges, of course, for the BLM is that the number of trails and the miles of trails have increased in every survey that they’ve done. So back in the 1980s, they were really thinking it was closer to 5,000 or 8,000. And then by the time you get to today, the number is over 10,000 miles of trails.
And one of the challenges that they’re going to have is deciding which trails they’re going to keep that exist in the world and which ones they are not going to keep. On the other hand, I think there could be a chance that this would be used in any subsequent litigation. At the same time, many of the people involved are actually quite aware of this problem. And this is in many ways the problem at the center of the case.
Everyone acknowledges this as a problem. So one thing I think that we frequently find in writing our academic articles is that the things that we are writing about and that we find interesting are things that people who we work with in the field often find to be part of an ordinary part of their life, or something that is just a fact of life that, for whatever reason, is interesting to the weird academic who sees them out there.
FOURCADE: All right, Julia, so thank you so much. Before we part, do you want to tell us what you’re working on now? I know that you keep returning to the desert. Is your current research agenda still located there?
SIZEK: Yes, so currently, I’ve been working on a couple of projects that are related very much to this WEMO project. One of the things that I’ve been working on is the history of off-road vehicle management and looking at the earliest years of the Bureau of Land Management’s response to off-road vehicles, primarily motorcycles, between the years of 1968 and 1972, a very specific time, and of course, before the Bureau of Land Management has any official mandate from the federal government, which is part of the reason why it’s interesting.
I’ve also been looking at a couple of other early off-road vehicle issues that are not quite as far along in the research pipeline. One of them is the history of environmental litigation regarding dirt bikes and the role of the Sierra Club Legal Defense Fund and other groups like the Environmental Defense Fund in approaching recreational issues, in addition to the more traditional part of what they would look at, which would be things like mining or grazing or extraction.
And finally, I’ve also been looking at the history of the science of off-road vehicles, basically trying to understand this moment in the 1970s when a lot of federal agencies are starting to hire their first herpetologists or their first non-game specialists, and when these agencies are trying to understand the entire ecology of the areas that they’re working with, rather than only looking at the important species, whether that’s bighorn sheep or some other game animal. And so I’ve been investigating how all of these intersect with dirt bikes.
FOURCADE: Wonderful, so you have plenty of exciting research in the works still. So thank you so much for talking to me. Thank you also for everything you are doing for Matrix and for the social sciences at Berkeley.
SIZEK: Well, thank you so much for having me. It’s been a pleasure.
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