Impossible evidence: The legal dismal cycle of regulating off-roading in the California desert

Abstract

A forty-year battle over off-road vehicle use in the California desert hinges on a deceptively simple question: how many miles of roads and trails were present in 1980? The only problem is that the answer to this question is impossible. This article seeks to understand the history and effects of this impossible regulatory demand through the concept of “impossible evidence,” which describes evidence that is legally demanded but cannot or does not exist. I detail the rise of impossible evidence through the history of off-road vehicles in California, showing how an unregulated activity slowly comes under the purview of a growing environmental administrative state. I then track the 2009 CBD v. BLM decision to show how evidence becomes impossible. Finally, I discuss the implications of impossible evidence for the future of the California desert, revealing how the demand for impossible evidence creates an unworkable legal “dismal cycle,” while allowing for the continuation of the same problem of off-road vehicle route proliferation.