December 12, 2007

Off-road riders raising funds to fight BLM's wilderness study area use policies

OHVs in southern Utah

By Mark Havnes
The Salt Lake Tribune

KANAB - Off-highway-vehicle riders have raised $25,000 to help one of their own fight a $300 fine.

Back on May 28, 2006, a federal ranger cited Dan M. Jessop for leading a group of nine OHVs on a road closed by the Bureau of Land Management in a wilderness study area.

Jessop refuses to pay the fine. The 54-year-old Apple Valley resident doesn't deny driving an OHV on Canaan Mountain's Sawmill Road near the boundary between Kane and Washington counties. But he and his off-roading pals do dispute the BLM's ownership of the route, its authority to close it and its ability to create "de facto" wilderness areas.

And they plan to make those arguments in federal court. A hearing is set for today before U.S. Magistrate Robert T. Braithwaite in St. George. If the OHV groups prevail - and the judge tosses Jessop's criminal misdemeanor charge - they figure they will have ammunition against other off-roading tickets and what they see as an escalating crackdown against all-terrain vehicles on federal lands.

In short, the ATV crowd is drawing a line in the dirt with Jessop's case, hoping to gain the upper hand in the continuing road war between government officials and backcountry enthusiasts.

Jessop argues Sawmill Road is a Washington County route and that the BLM had no right to close it.

"I've been driving on that road for 35 years and [no one] is going to tell me not to drive there," Jessop said. "I'm fighting it on the principle of the thing."

But that principle will require some principal. That's why OHV groups have kicked in $25,000 to aid Jessop's defense.

"It can take significant money to take a position," said Jessop's St. George attorney, Michael Shaw. "Like the big civil cases, we're fighting the same fight, which is why it is so expensive."

Most cited OHV riders face civil fines and would rather cough the cash than fight the ticket in court.

One of Shaw's arguments in Jessop's case is that only Congress can create a wilderness area. So when the BLM starts treating places as wilderness in study areas, he said, the agency has overstepped its authority and created a "de facto wilderness area."

Shaw also insists Sawmill Road should remain open because it was in use well before 1976, when Congress repealed Revised Statute 2477.

That old mining law granted rights of way across public lands. Lawmakers grandfathered in existing routes, leading to numerous road ownership disputes in Utah.

Shaw said he has affidavits from at least 10 people testifying to the historical use of Sawmill Road that he plans to introduce in court.

"We are saying the BLM has no authority to close it," he said. "There is good case law to back us up."

But the government points to a precedent backing its case.

Jim Crisp, manager of the BLM field office in St. George, said Braithwaite ruled several years ago against a group of riders cited on Sawmill Road, closed since 1980. He said the judge found the agency acted within its authority.

"It is clear the road had been closed," said Crisp, who disputes even defining the road as such. "It was an old pack trail not authorized for vehicles."

Crisp said OHV users have driven all over the mountaintop, scarring the landscape. People also have ripped out barricades and knocked down signs.

Still, Don Black, president of the Canyon Country 4x4 Club of Kanab, is eager for a showdown in court. His group has been looking for a case to challenge similar citations.

"If we win," he said, "it will affirm our rights to use [county] roads."

But Liz Thomas, an attorney for the Southern Utah Wilderness Alliance, counters that federal land mangers have the authority to create wilderness study areas, including road closures.

"Until congressional action [on wilderness], the BLM is responsible and has the authority to manage public lands," Thomas said. "The BLM does all it can to make clear an area is not open for use."

She said Kane and Washington counties are laced with legal roads and that to intentionally go on closed paths is "criminal."

While Thomas had not heard of Jessop's case, she found it similar to one SUWA is fighting in federal court with Kane County.

For OHV groups, she said, the issue has become "ground zero for fighting the federal government."