November 25, 2006

Suit filed to open remote road

Homeowners, off-roaders claim access right

Chuck Mueller, Staff Writer
San Bernardino Sun

A long-simmering issue involving an obscure 19th-century law that grants rights of way on federal land is heading for court.

A major legal battle looms over the public's right to use a closed Inyo County road through remote Surprise Canyon to the ghost town of Panamint City in Death Valley National Park.

"Under law, the federal government must give private landowners access to their property," said Wyoming attorney Karen Budd-Falen, counsel to three groups of landholders who own property near the old mining camp. Their land is surrounded by federal land and can be reached by road only by a 132-year-old route through Surprise Canyon.

The U.S. Bureau of Land Management installed a gate to close the road in mid-2001, sparking the court challenge by the landowners and off-road- vehicle groups that frequented the canyon.

Budd-Falen said the plaintiffs - the nonprofit Friends of the Panamint Valley, the Little Chief Millsite partnership, and landowner Bryan Lollich - contend the Civil War-era law granting right of way on public land must be upheld.

"Through the Mining Act of 1866, which later became Revised Statute 2477, Congress granted rights of way over unreserved public lands for the construction of highways," the Budd-Falen said.

"Passage of the Federal Land Policy and Management Act of 1976 repealed RS 2477, but rights of way existing before its adoption on Oct. 21, 1976, were grandfathered in. This included the road through Surprise Canyon."

Lollich, vice president of Friends of Panamint Valley, noted that the Surprise Canyon Road was opened in 1874 as Panamint City became a silver-mining boomtown. As a valid right of way when the 1976 land policy act was adopted, "it remains a valid right of way," he said.

Plaintiffs in the civil suit filed with the U.S. District Court in Washington, D.C. Their property is surrounded by government land administered by the Bureau of Land Management and the National Park Service.

The two agencies, part of the U.S. Department of Interior, are defendants in the case. They have until Dec. 11 to respond to the allegations before District Judge John Bates.

The 10,000-member California Off Road Vehicle Association is backing the plaintiffs' arguments. "We're totally behind them," said association President Ed Waldheim. "It's a travesty that the road through Surprise Canyon was closed. We worked hard with Congress to get a `cherry-stem' designation (to exclude the road from the wilderness area), and they're still trying to close us out."

Meanwhile, using the same mining law as its basis, San Bernardino County has filed a lawsuit against the Department of the Interior in U.S. District Court in Riverside in a move to protect public right of way on county-maintained roads in the Mojave National Preserve.

Under provisions of the Desert Protection Act, which created the national preserve in 1994, the Interior Department closed roads that are part of the county's highway system across federal lands, First District Supervisor Bill Postmus said.

The Interior Department has until Jan. 15 to respond to the suit.

Six environmental groups have asked the court to allow them to intervene in the case involving Surprise Canyon. They contend that previous off-road-vehicle activity has caused significant damage to wildlife habitat and riparian areas in Surprise Canyon.

Although the canyon has undergone "a remarkable transformation" since the road was closed in 2001, the environmentalists said, that "dramatic recovery could be short-lived if it is opened again to motorized use."

The environmental groups - the Sierra Club, The Wilderness Society, the National Parks Conservation Association, the Center for Biological Diversity, California Wilderness Coalition, and Public Employees for Environmental Responsibility - claim an interest in the case as each has had a long history of involvement in protecting Surprise Canyon.

Three of the groups, they pointed out, filed a lawsuit in 2000 that brought about the closing of the Surprise Canyon Road. Three others worked to pass the California Desert Protection Act in 1994, which added the upper portion of Surprise Canyon to Death Valley National Park and created the 29,180-acre Surprise Canyon Wilderness.

Geary Hund, of the Wilderness Society's Idyllwild office, said the canyon was designated an area of critical environmental concern in 1980. "Its biological diversity is high due the presence of spring-fed streams," he noted."

Among creatures inhabiting the area are the desert bighorn sheep, more than 70 birds such as the prairie falcon and endangered Inyo towee, and the Panamint alligator lizard, isolated in the canyon since the Pleistocene epoch.

Chris Kassar, wildlife biologist with the Tucson, Ariz.-based Center for Biological Diversity, said allowing off-roaders back into Surprise Canyon would set back efforts toward survival of endangered species for decades. "Since the canyon stream is narrow, substantial adverse impacts, including pollution of the water, would result," she said.

According to Kassar, four-wheel-drive enthusiasts created their own route through the scenic canyon, filled parts of the streambed with rocks and winched their vehicles over near-vertical waterfalls. "The BLM should never have allowed this kind of extreme off-road-vehicle use in Surprise Canyon to occur," Hund said. "It pollutes the five-mile-long perennial stream through the canyon, damages habitat and degrades the wilderness."

But Larry Robertson, vice president for land use for the California Off Road Vehicle Association, said the allegations are exaggerated.

"Off-road vehicle groups have protected Surprise Canyon, but with the closure of the road a lot of vandalism is occurring," he said. "Without adequate protection, a lot of old mining cabins are being destroyed. "Only a handful of off-roaders are winching their vehicles up the cliffs. The winching process, which uses steel anchors placed there by miners who lifted wagons up in the 1930s, are used only in a small corner of the canyon."

The association is assisting the plaintiffs with legal help and funds, Robertson said. "Off-roading activity was shut down two years ago after the gate to the road was closed, and now we're trying to assert our rights under RS2477.

"The intent of the statute is to prevent the government from arbitrarily and capriciously closing dedicated roads on public lands."