April 17, 2015

Utah Supreme Court request could have big implications for state's bid to claim roads on federal land

Road claims » Clarification of statute could shape counties’ ownership petitions

Rancher Chris Odekerken poses for a portrait along K2825 on his property on Glendale Bench Wednesday May 8, 2013. (Chris Detrick | The Salt Lake Tribune)

The Salt Lake Tribune

Three federal judges are asking the Utah Supreme Court to clarify the meaning of a short section of Utah law that has big implications for counties' claims to roads criss-crossing federal lands.

Counties, joined by the state, have filed more than 20 federal lawsuits in recent years, trying to get control of more than 35,000 miles of roads or road segments under a Civil War-era statute known as RS2477.

On Friday, though, U.S. District Judges David Nuffer, Clark Waddoups and Robert J. Shelby sent an order to the Utah Supreme Court asking, essentially, whether Utah law bars the lawsuits.

The Southern Utah Wilderness Alliance, an intervenor in the federal cases, argues that the Utah Code has a seven-year "statute of repose" that means any lawsuits making a claim to the roads had to be filed by 1983, seven years after RS2477 was repealed in 1976.

The first of the lawsuits was not filed until 2011.

The federal judges write in their order that "If SUWA's assertion is correct, then the R.S. 2477 Road Cases pending before this court would be barred."

But if the code is interpreted as a "statute of limitations," the seven-year clock may not have begun ticking until the counties discovered they were injured by federal action to close the roads, according to case law cited in the order.

The federal judges ask the Utah Supreme Court to answer this question of law: "Are Utah Code 78B-2-201(1) and its predecessor statutes of limitations or statutes of repose?"

It's not clear how soon the Supreme Court will take up the question. In an apparent response to SUWA's challenge, the Utah Legislature this winter passed a bill, retroactive to 1972, specifying that the statute of limitations doesn't apply in cases involving claims against the federal government for real property. HB401 was sponsored by Rep. Mike Noel, R-Kanab.

Last week, Waddoups took the unusual step of issuing a temporary restraining order to block a state judge from hearing a lawsuit involving Tooele County's RS2477 claims.Tooele County resident Michael Abdo and SUWA filed the lawsuit in 3rd District Court last summer.

Waddoups agreed with state attorneys that it was an "end run" around his jurisdiction in Tooele County's federal case, pending since 2012.

April 3, 2015

Desert off-road plan draws opposition from environmentalists

Map of the West Mojave (WEMO) Route Network Project and Plan Amendment. (BLM)

By Jim Steinberg
The San Bernardino Sun

VICTORVILLE — A federal Bureau of Land Management off-road travel plan for the Mojave Desert drew stiff resistance from environmental groups at a public hearing Thursday evening.

“It is unnecessary degradation of federal lands,” said Neil Nadler, a Lucerne Valley member of Alliance for Desert Preservation. “It is going to have a profound effect on the environment.”

“It’s shocking,” said Eileen Anderson, chief scientist for the Center for Biological Diversity.

The West Mojave Route Network Project is a travel management planning effort covering 9.2 million acres in the Western portion of the Mojave Desert, which includes parts of San Bernardino, Los Angeles, Kern and Inyo counties as well as a small portion of Riverside County.

Approximately 3.1 million acres in the planning area are public lands managed by BLM, and only BLM land covered by the proposal was discussed Thursday night.

Other public hearings are scheduled in Lone Pine on Tuesday and Yucca Valley on April 15.

The land area served by roads involves about 2.35 million acres, while roads are prohibited in wilderness areas and other special zones which total more than 700,000 acres.

The preferred alternative in the draft plan:

• Designates approximately 10,000 miles of routes for public motorized use.

• Designates approximately 130 miles of routes for non-motorized or non-mechanized (no bicycles) use.

• Closes approximately 4,400 miles of routes to motorized use.

• Reduces stopping, parking and camping outside of Desert Wildlife Management Areas from 300 feet to 100 feet and

• Maintains stopping, parking and camping restriction within the environmentally sensitive Desert Wildlife Management Areas to within 50 feet of the route center line.

• Opens three dry lake beds to unrestricted motorized use from the status of limited to designated routes: These are Cuddeback, Coyote and Chisholm Trail.

• Closes Koehn, a dry lake bed, which is now limited to designated routes.

“There are problems with sinkholes in that area,” said Jeffrey K. Childers, assistant field manager for the BLM’s Barstow Field Office.

“We don’t want people going in there,” he said.

The route plan will be in agreement with the Desert Renewable Energy Conservation Plan, which involves 22.5 million acres of the California desert, Childers said.

Among those attending the public hearing Thursday was Howard Brown, a mineral exploration and mining geology consultant based in Apple Valley, who said that closing 4,400 miles of routes to motorized vehicles was disappointing.

“The number of people in California is only going to grow. And more people are going to want outdoor recreation,” he said.

“And there is (in the proposal) less access available, he said.

The proposed route network project is the first sophisticated effort to catalogue every road in the BLM study area, Childers said in an interview.

Some of the 10,000 miles of unpaved roads are motorcycle trails only inches wide, he said.

“I was shocked when I first heard about the 10,000 miles,” Anderson said in an interview. “I was flabbergasted. It is unacceptable.”

Anderson said the opening up of that many routes so far off the beaten path makes enforcement an impossibility.

“Once they (off-highway vehicles) are back there, there will be no effective way to keep them on designated routes,” she said.

Tom Budlong, a Los Angeles resident who said he enjoys the solitude of the Mojave Desert, said that the unenforceablilty of the plan will doom it to failure.

This is the second go-around for a BLM route management plan. Another proposal, advanced in 2006, was the focus of a lawsuit by Anderson’s Tucson-based Center for Biological Diversity.

A 2009 court order did not find issue with particular routes, which then covered 5,000 miles, and did not call for any additional route closures, but the court order did fault the methods used to designate those off-road routes.

The court found that the BLM violated regulations spun off from executive orders issued by Presidents Richard Nixon and Jimmy Carter regarding efforts to minimize impacts regarding natural, esthetic, scenic or other values, said Lisa Belenky, a senior attorney with the Center for Biological Diversity.

Anderson said she believes that aspects of the 10,000 miles of routes still violate those regulations.

Both Anderson and Nadler asked for a 90-day extension on the comment period which ends June 4.

And both criticized the route plan for ignoring the importance — and scientific research — about the vital role that land links between designated wilderness or other undeveloped areas play in species survival.

Both said the road density, in certain areas, was so intense that it would inhibit necessary migration of mountain sheep, desert tortoise and other protected species.

Nadler said that heavy route concentration would significantly “degregate” public lands near large population areas, like the Juniper Flats area on BLM land south of Apple Valley and north of San Bernardino National Forrest.

And he called the 130 miles of routes for non-motorized and non-mechanized travel “a joke” because it is such a small number.