April 13, 2009

Court denies Utah counties' monument road claims

Counties sued over water rights and road access

By Patty Henetz
The Salt Lake Tribune

Kane and Garfield have lost another round in their years-long court fight for more road and water access in the Grand Staircase-Escalante National Monument.

A three-judge panel of the 10th U.S. Circuit Court of Appeals on Monday upheld an earlier ruling that the Kane County Water Conservancy District, which is seeking to drill a culinary well within the monument, doesn't yet have a case.

In their 32-page ruling, the judges said that because the U.S. Bureau of Land Management, which crafted the management plan for the monument's 1.9 million acres, hasn't completed an environmental analysis on Kane's request to drill the well in Johnson Canyon, the county cannot show it has been harmed.

Kane County, the Kane County Water Conservancy District and Garfield County sued the Interior Department and the BLM to challenge the monument plan on both road and water-right access.

Mike Noel, executive director of the water district and Kane's representative to the Utah House, said the monument plan allows water rights of way only under certain circumstances that make it difficult for his water district to tap its water right, whose headwaters are within the monument boundaries.

The proposed well site is on land proposed for wilderness study, which the BLM already has identified as having wilderness-quality resources.

Earthjustice attorney Ted Zukoski warned that riparian areas on the monument could be jeopardized if Kane County is allowed to siphon the water.

Earthjustice is representing the Southern Utah Wilderness Alliance, the National Trust for Historic Preservation, the Sierra Club and The Wilderness Alliance as interveners in the lawsuit against Interior.

Kane's water district wants to drill a new well on federal land, Noel said, because too many ranches in the narrow canyon have septic systems that could contaminate a water line laid on private property.

The Denver appeals panel also upheld a lower-court ruling that counties seeking ownership of certain roads across federal land must take their claims to federal court, road by road.

This marks another time a federal court has responded the same way to lawsuits over road claims filed under a Civil War-era law, called Revised Statute 2477, that Congress abolished in 1976.

BLM spokesman Larry Crutchfield said nearly 1,000 miles of roads and trails are open to motorized access within the Grand Staircase -- with about 600 miles open to off-highway-vehicle recreation.