Weekend warriors fear Washington land grab could take off-roading off the board

A group of off-roaders and others are attempting to fight a proposed designation of three national monuments in the California desert under the Antiquities Act. (Corva.org)

By Perry Chiaramonte
FoxNews.com

California outdoors enthusiasts fear Washington is poised to put up roadblocks on some of the Golden State's most treasured trails by designating three desert destinations totaling more than 1 million acres national landmarks.

The Obama administration is considering using the federal Antiquities Act to bypass the legislative process at the request of Sen. Dianne Feinstein, whose efforts to have the Mojave Trails and Castle Mountain, both in the Mojave Desert, and a section of the Sonoran Desert named federal sites were repeatedly blocked by Republicans. A White House move could put the land under federal control, which critics say could cut funding for upkeep or even restrict access.

“Bypassing the legislative process using the Antiquities Act would be as disastrous as it is undemocratic, creating winners and losers with the stroke of a pen,” said Rep. Paul Cook, R-Calif., who has sponsored a bill that bears some similarities to Feinstein's, but would ensure off-roading and mining could continue on the land. Cook’s bill would also allow the state to create water projects for wildlife conservation.

“Any time you take away the consensus of the local community they are left with something they did not ask for." - Amy Granat, California Off-Road Vehicle Association

The Mojave Trails lie in the desert of the same name in eastern California and are part of a 140-mile road that stretches from the Colorado River to Mojave River. The Sand to Snow Monument would cover 135,000 acres from the Sonoran Desert floor in Coachella Valley to the peak of Mount San Gorgonio, in the San Bernardino Mountain range. The Castle Mountains lie on the Border of Nevada and California near the famed Joshua Tree region and reach an elevation of 5,543 feet.

While the Obama administration has not said publicly if the Mojave Trails, Sand to Snow and Castle Mountain national monuments will be designated, Feinstein asked the president in August to take the action. The Antiquities Act was signed into law in 1906 by Theodore Roosevelt, and gives the president authority to create national monuments from public lands to protect significant natural, cultural or scientific features. It has been used more than 100 times, including for such landmarks as the Grand Canyon, Mount St. Helen's and a stretch of the Underground Railroad in Maryland. Given that President Obama has invoked the Antiquities Act to name 19 sites national monuments since 2009 and as recently as July, Cook and other critics have reason to believe the White House could do so again, especially at the invitation of a powerful Democratic ally.

"We don’t know what’s going to happen,” said Amy Granat, managing director of the California Off-Road Vehicle Association, which has been fighting the legislative proposals for two years. "More and more of the desert is being taken away from the people. If you look at the entirety of the desert, there has always been a no-win when the Antiquities Act has been put in place.”

Cook supports the designation, but through legislation and on terms that allow current uses to continue. He said a White House decree based on the Antiquities Act “sets in motion a Washington-based management plan" that will ultimately leave the recreational area unfunded - and unkempt.

“ ... the roads and facilities will be left to degrade to a point where public use is unsafe or impossible,” he said. “Anyone who’s read the recent reporting on the newly-created San Gabriel National Monument’s dire situation can attest to this. Use of the Antiquities Act will create more “orphan” monuments like San Gabriel, this time in the heart of the California desert.”

One example of the Antiquities Act not helping to improve an area can be seen at the San Gabriel Mountains, range of mountains located across Los Angeles and San Bernardino counties and separates the City of Angels and the Mojave. It has been just over a year since the White House designated the mountainous region as a National monument but the area has still not received any federal funding. The 970-square-mile region badly needed the funding to combat growing blight in the area, but is still plagued by garbage and vandalism. And with no federal funding in sight, the National Park Service does not have the means for proper upkeep.

Feinstein is not without support in her home state. An Antiquities Act designation for the three landmarks could actually bolster recreational activities, according to the Campaign for the California Desert.

“The point that Rep. Cook and other opponents of the monument designation are missing is that when our shared public lands are protected, it’s for the continued use and benefit of all Americans," the group said in a statement. "It is only when our public lands are sold off or leased by a developer does the public’s access to our public lands becomes restricted.”

Wilderness as economic stimulus? A closer look at the evidence

By Shawn Regan
The Hill

There are many good reasons to love wilderness. The Wilderness Act, which passed 50 years ago this year, describes several of them: outstanding opportunities for solitude, primitive and unconfined recreation experiences, and the preservation of special places "where the earth and its community of life are untrammeled by man."

As a former wilderness ranger, these values resonate with me. More than 100 million acres of land have been designated as "wilderness" since 1964, and in my view they include some of the most spectacular landscapes imaginable.

But as hard-fought wilderness bills languish in Congress, some are claiming there's another reason to love wilderness areas – they're good for local economies.

This economic argument is a central part of wilderness advocacy today. Protecting lands from development, many say, provides a much-needed boost to rural communities. These lands attract workers, entrepreneurs and investors across all sectors while boosting income and employment in surrounding areas.

But what does the research actually say about the economic effects of wilderness designations? I took a close look at the peer-reviewed academic research and found few rigorous studies and little evidence to support the claim that wilderness leads to economic stimulus. As we celebrate the 50th anniversary of the Wilderness Act, consider what the best available research says.

First off, there is disagreement on how natural amenities such as wilderness should affect economic outcomes in theory. On the one hand, wilderness designations limit resource development and could hinder income and employment in extractive industries. On the other hand, wilderness could improve quality of life and attract new businesses, migrants and tourists. Adding to the confusion, there is evidence that workers might accept lower wages, longer periods of unemployment and higher land prices to live in areas rich in natural amenities such as wilderness.

So there's confusion about the theory, but what do existing studies find when they look at the data? In short, not much. The first empirical study, published in 1998, found no evidence that wilderness had an effect on employment or population growth in Western counties during the 1980s. A similar study in 1999 found no effect of wilderness on income, population or employment growth in rural counties in several Western states. Two more studies in 2002 and 2003 were no different: Wilderness had no effect on employment or wage growth.

More recent studies come to similar conclusions. A study in 2006 by Ray Rasker of Headwaters Economics champions the role that public lands play in stimulating income growth in the West, but a closer look reveals that he is unable to demonstrate a statistically significant effect associated with wilderness lands. Another study by Rasker and his colleagues, published in 2013, emphasizes that protected public lands (including wilderness) had a small positive relationship with three measures of income. Less obvious was the fact that seven other economic measures they examined had zero effect.

So what about the popular claim that wilderness drives economic growth? Studies that reach this conclusion are based on simple correlations. None are rigorous enough to suggest that wilderness causes growth. Two studies that are often cited — one by Paul Lorah and Rob Southwick in 2003 and another by Patrick Holmes and Walter Hecox in 2004 — report a positive correlation from wilderness and population, income and employment growth. But once additional factors are controlled for in more detailed studies, these positive relationships disappear.

More research is needed to better understand the effects of wilderness. But a critical look at the existing studies makes this much clear: There is little or no evidence that wilderness bolsters economic growth. When environmentalists invoke economic arguments to support wilderness, they are exaggerating the best-available research and undermining other more compelling wilderness values.

Wilderness advocates shouldn't hang their hats on economic arguments. There are plenty of good reasons to love wilderness areas — but there's just no evidence that economic arguments are one of them.

Regan is a research fellow at the Property and Environment Research Center (PERC) in Bozeman, Mont., and a former backcountry ranger for the National Park Service.

Judges seem skeptical of U.S. in high-stakes Utah road dispute

 PUBLIC LANDS

Kane County, Utah, R.S.2477 road claims.

Phil Taylor
E&E / Greenwire

DENVER -- A federal appeals court yesterday appeared skeptical of the federal government's claims that a lower court had wrongly awarded a Utah county and the state rights of way over desert roads in a case with possible ramifications for Utah's larger bid to assert control over federal lands.

But the three-judge panel of the 10th U.S. Circuit Court of Appeals offered few hints as to whether it would uphold a district court's decision in March 2013 to award southern Utah's Kane County rights of way over 12 of 15 roads it had claimed, four of which run through the Grand Staircase-Escalante National Monument (Greenwire, March 25, 2013).

It's a high-stakes case for Utah, whose counties have staked claims over some 12,000 roads spanning about 36,000 miles over federal lands under a Civil War-era mining law, as well as conservation groups, which note that many of those routes crisscross sensitive wilderness study areas, national parks or other public lands they've proposed remain roadless.

The 10th Circuit's ruling on the Kane case could offer legal precedent for how Utah, counties, the federal government and conservation groups negotiate resolution on thousands of other roads.

Yesterday's proceeding featured oral arguments by Department of Justice attorney David Shilton and Kane County attorney Shawn Welch.

At issue are Kane's claims to 15 roads crossing some 89 miles of federal lands under an obscure 1866 law known as R.S. 2477 that allowed miners and homesteaders to build trails or roads over any public lands not yet reserved or claimed for private use. Utah and its counties can gain title to R.S. 2477 roads if they can prove they were in continuous use for at least 10 years prior to the law's repeal in 1976.

Utah argues the law is a critical bulwark against federal decisions to block access to public lands, but conservation groups see it as one of the greatest threats to preserving wilderness-quality lands in Utah's red rock country.

U.S. District Judge Clark Waddoups last year said Kane successfully proved its case for 12 of the roads. While some are noncontroversial, the North Swag route, which Kane won, cuts through the Paria-Hackberry wilderness study area, which BLM recognized for its roadless characteristics and which environmentalists have eyed for future wilderness designation.

Both Kane County and the United States appealed the decision to the 10th Circuit, but for different reasons.

Kane and Utah argued that Waddoups was wrong to require them to prove the validity of R.S. 2477 claims by "clear and convincing evidence," rather than a lower burden of proof, and had incorrectly ruled that a public water reserve issued by President Coolidge in 1926 precluded R.S. 2477 claims.

DOJ's Shilton argued that the district court had no jurisdiction to decide R.S. 2477 claims for the Sand Dunes, Hancock and Cave Lakes roads because they had never been closed to use and therefore created no "dispute" for the court. It also claimed Waddoups had awarded rights of way widths for North Swag, Swallow Park/Park Wash and Skutumpah roads based on current, rather than 1976, uses.

The judges pressed Shilton to explain the government's first argument over jurisdiction. While the roads remained open, legal title was still in dispute.

Shilton argued the Bureau of Land Management, which oversees the tracts, has to take "some affirmative action" to trigger the court's involvement. "The United States has never closed access to those roads," he said. "You need a real dispute."

But Judge Gregory Phillips, an appointee of President Obama, said that line of reasoning could allow "decades and decades and decades" to pass without a resolution of Kane's claims. He said the government stands to benefit from delays because it makes it harder for Utah to prove R.S. 2477 claims.

In addition, Judge Robert Bacharach, another Obama appointee, pressed Shilton to defend the government's claim that Waddoups had wrongly awarded right of way widths for uses that didn't exist in 1976, such as for heavier agriculture vehicles. Bacharach spoke to a need to maintain the "current day's standard of safety."

The third judge, Paul Kelly, was appointed by President George H.W. Bush.

Panel skips enviro arguments

Notably, the panel didn't discuss arguments raised by environmental litigants in the case including the Southern Utah Wilderness Alliance, Wilderness Society, Sierra Club, Grand Canyon Trust and National Parks Conservation Association.

Those groups argued in friend-of-the-court briefs that Waddoups had failed to consider that a 12-year statute of limitations had expired for the North Swag route, making the county's claim for that route invalid.

They also argued that historical use of alleged R.S. 2477 roads by adjoining landowners, ranchers and others who enjoyed privileged access should not have counted in the Kane County case, nor in any of Utah's other road claims winding their way through the courts.

"It's disappointing," said SUWA attorney Steve Bloch. "There were significant issues that could have steered this hearing in a different direction."

Bloch noted that the 10th Circuit in April had concluded in a separate R.S. 2477 case involving the Salt Creek road through Canyonlands National Park that "proprietary use" of a road doesn't count for determining a valid right of way.

"This is one of the key take-aways from the Salt Creek decision," Bloch said. "This alone could be a basis to send this entire case back to Judge Waddoups."

Conservationists had hoped that finding would come into play in the Kane case yesterday, but it didn't.

Shilton did not raise this point before the court and declined to be interviewed after the arguments.

Welch said the merits of the Salt Creek case should not apply in the Kane case. Unlike Salt Creek, the Kane roads connect other roads and their use was less in dispute, he said.

In the Salt Creek case, the court also had ruled that frequency or intensity of use, not just whether it was used for 10 consecutive years, is important in determining whether a road qualifies as a "public thoroughfare" under R.S. 2477. For example, use by a single cattleman for driving cattle is insufficient, as is intermittent or occasional use by hunters, fishermen, shepherds, farmers and miners, the court said.

This issue also did not come up yesterday.

Ruling sticks: Salt Creek not a county highway

RS 2477 fight » Tenth Circuit Court of Appeals affirms narrow view of what constitutes “public use.”

The Salt Creek/Horse Canyon road in the Needles District of Canyonlands National Park flooded Oct. 5, 2011. (Canyonlands National Park)

By Brian Maffly
The Salt Lake Tribune

A federal appeals court on Monday affirmed a tough standard for what constitutes a county road, spurring the state to urge Utahns to come forward if they have memories of hunting or hiking on disputed routes decades ago.

To prevail in a road claim, a three-judge panel of the 10th Circuit Court of Appeals unanimously held in April, counties should demonstrate actual use by the general public, not just use that was "necessary or convenient" for a handful of people or by ranchers moving cows.

Monday’s ruling denied Utah’s request to have the full court reconsider that decision.

The April ruling rejected San Juan County’s highway claim up Salt Creek Canyon in Canyonlands National Park. At issue was a 12.3-mile unimproved route that threaded in and out of a creek bed draining the park’s Needles District.

But the 10th Circuit’s logic could extend to the thousands of other road claims pending against the federal government in Salt Lake City’s U.S. District Court.

Wielding a frontier-era law known as RS 2477, the state is seeking title to 66-foot rights-of-way on 36,000 miles of what rural counties claim are vital transportation corridors.

Opponents, however, say many of these contested routes appear to be marginal two-tracks.

Besides signaling a victory for federal control of such "roads," this ruling fills a gap in case law regarding RS 2477, according to Heidi McIntosh, a lawyer for the nonprofit law firm Earthjustice

"They closed the door on claims which cite no more than random prospector use or ranchers using the route pursuant to a permit. That’s important. Thousands of the claims before the court are claims just like Salt Creek," said McIntosh, who filed amicus briefs in the case opposing San Juan County’s right-of-way claim.

The Denver-based 10th Circuit on Sept. 29 will hear arguments on another major RS 2477 case, one involving about a dozen routes in Kane County.

The 2013 ruling by U.S. District Judge Clark Waddoups in that case was mostly a defeat for the federal government, which is appealing.

The state and county are appealing aspects of Waddoups ‘s decision that hinder the larger roads cause, which is among the costliest legal undertakings ever pursued by Utah officials.

A stable of lawyers, most on the taxpayers’ dime, have been touring the state in recent months, taking "preservation" depositions of elderly and infirm witnesses whose testimony is needed to establish road use decades ago.

These people are not expected to still be alive years from now when these cases actually land before a judge.

To gain title to a right-of-way, counties must demonstrate 10 years of "continuous use" prior to the 1976 passage of the Federal Land Policy and Management Act, which repealed RS 2477.

For Salt Creek, that use had to have occurred prior to 1964 when Congress established the national park.

The Salt Creek and Kane cases are among Utah’s four "active" roads lawsuits, which are intended to resolve questions of law common to most of Utah’s 14,000 road claims.

However, this most recent ruling leaves the definition of "continuous use" to the discretion of trial judges, according to Tony Rampton, public lands section director for the Utah Attorney General.

"Our objective was to have the Court solidify the test for public user, and it is unfortunate that the Court did not avail itself of this opportunity," Rampton said in a prepared statement.

"This ruling increases the importance for members of the public who used the roads prior to 1976 for hunting, camping, sight-seeing and other general public uses to come forward with their testimony to assist in the presentation of the evidence in cases involving R.S. 2477 roads."

State officials have long held that these contested rights-of-way are crucial to economic prospects and quality of life for rural counties. Environmentalists dismiss such framing as a "red herring," arguing the state’s hidden goal is to disqualify large swathes of undeveloped land in southern Utah from wilderness protection.

Westerners fear monumental land grab by Obama administration

By Kelly David Burke
FoxNews.com

Utah officials are scrambling to prevent the Obama administration from locking down thousands of acres of land in their backyard, as federal officials consider up to a dozen possible national monument designations – all in western states.

The Antiquities Act gives U.S. presidents the authority to unilaterally declare public lands as national monuments at the stroke of a pen, with no input from the public unless they choose to seek it.

Many national monuments eventually go on to become national parks.

National Parks Conservation Association spokeswoman Kristen Brengel said the practice has been used for over a century to preserve some of America’s most iconic landmarks: including the Grand Canyon, the Statue of Liberty and Arches National Park.

“It's a wonderful tool to conserve these resources so that people can enjoy them in perpetuity,” she said.

But critics feel the Antiquities Act has been misused in recent decades by presidents of both parties and, in Utah, they’re seeking a compromise that would allow some land to become designated as “wilderness” instead.

"The original Antiquities Act passed as a way of conserving land," Republican Utah Rep. Rob Bishop said. "It's no longer used that way. Now it's used as a political purpose to make a political statement on land that is not endangered in any way."

The issue is particularly sensitive in the American West, where the vast majority of federally owned and controlled land lies.

"In the West, almost half of the land, versus 4 percent in the East, is owned by the federal government," Bishop said. "So in my state of Utah, 70 percent is owned and controlled by the federal government. So we in the West clearly see this differently, because we face it and live with it every day."

A draft Interior Department memo in 2010 suggested 12 sites for possible national monument designation by President Obama. The land already is mostly in federal hands, but a monument designation would more tightly restrict access.

All of the sites are in the West, including Organ Mountains-Desert Peaks in New Mexico, which President Obama declared a new national monument in May.

Four of the other 11 sites in the Interior memo are in the state of Utah. Recently, 14 U.S. senators wrote to Obama urging him to declare a Greater Canyonlands monument in Utah. None of the senators live in the Intermountain West, much less the state of Utah, where anger over a previous national monument designation is still palpable.

Utah Gov. Gary Herbert recalled how then-President Clinton designated the Grand Staircase-Escalante National Monument in southern Utah, by far the nation's largest, covering an area the size of Delaware and Rhode Island combined.

"President Clinton in 1996 -- denying that he was going to do it without any input from our congressional delegation or local government or state government -- just one day announced this designation,” Herbert said.

Bishop said “there were so many problems with it that were never solved when it was created.”

"They were never solved because it was a simplistic overreach and you didn't go into the details,” he said.

Emery County Commissioner Ethan Migliori said the monument is still a “bitter conversation in Utah.”

The problem, Migliori said, is the designation effectively “shut down everything” in that area.

“You can't access it anymore ... even on designated roads,” Migliori said.

Brengel said this president won't declare national monuments without warning. "One of the main things that the Obama administration has said is that they are looking for local input. Not just from local leaders but also from the public,” Brengel said.

Not willing to wait and see, Bishop has proposed a public lands initiative to work out a compromise. Instead of becoming national monuments, some land would become protected wilderness areas while allowing development on the rest.

Migliori and other officials in Emery County, where 92 percent of the land is owned by the federal government, support Bishop's efforts wholeheartedly. The proposed San Rafael National Monument would take up nearly 1,000 square miles, almost all of it in Emery County.

"It appears you have more access to a national park than you do to a national monument," Migliori said. "So a national monument is almost a death wish, or it feels like that to us."

Several environmental groups are also taking part in the discussions. "We are willing to work with any member of Congress on these proposals. We understand that their constituents have various interests. Ours in particular would be to protect some areas as wilderness or national parks,” Brengel said.

Herbert is also on board, saying: "The environmental community, industry, local civic and business leaders, farmers, ranchers, energy developers … All of the above come together and talk about what areas need to be developed and how, and what areas need to be preserved and protected because of their iconic vistas and venues."

Bishop said Interior Secretary Sally Jewell has spoken to him twice about his public lands initiative. "The secretary of Interior is encouraging us to move forward in doing it this way because it's a much more satisfactory process than ever it would be if you used the Antiquities Act,” he said.

California Desert Protection Act turns 20, celebrations planned

“Queen Valley” by Yucca Valley photographer Mike Fagan. (Courtesy Joshua Tree National Park Council for the Arts)

By Joe Nelson
San Bernardino Sun

The Joshua Tree National Park Council for the Arts, in cooperation with Death Valley National Park and the Mojave National Preserve, will be sponsoring a series of events this fall in celebration of the 20-year anniversary of the California Desert Protection Act, which expanded protection of California desert land by 8.6 million acres.

Events are planned from Oct. 31 through Nov. 15 from the Coachella Valley to Death Valley.

The Council for the Arts has launched a website, caldesert20.org, which includes a calendar of planned events that will updated regularly and a link to the summary and text of the California Desert Protection Act.

Adopted on Oct. 31, 1994, the California Desert Protection Act established the Mojave National Preserve and designated Joshua Tree and Death Valley national monuments as state [sic] parks while also expanding their footprint. It also established 69 wilderness areas managed by the Bureau of Land Management.

Feinstein said in a statement Friday that the California Desert Protection Act has allowed millions of Americans to enjoy 7 million acres of pristine California desert.

“Since that bill passed 20 years ago, I remain absolutely convinced that preserving this pristine desert land is the right thing to do,” Feinstein said. “That’s why I will soon introduce new legislation that will protect lands donated to the federal government by creating a new national monument while allowing recreation and renewable energy development to occur in other desert lands where it is more appropriate.”

She said there are not many spaces that are as pristine, as beautiful and worthy of protection than the California desert.

“I’m proud to have a wide array of allies in this pursuit, and I am eager to continue my work to preserve this land,” Feinstein said.

The Council for the Arts is working with the city of Twentynine Palms, the town of Yucca Valley and the unincorporated Joshua Tree and Morongo Valley to promote events to be held in mid-November that include a Desert Dinner featuring local elected officials and the national park’s new superintendent, a mural unveiling in Twentynine Palms, wilderness walks and hikes at Joshua Tree National Park and art exhibits, said Vickie Waite, executive director of the Joshua Tree National Park Council for the Arts.

Waite encourages local organizations and members of the community to get involved by contacting her via email at director@caldesert20.org.

In Ridgecrest near Death Valley, visitors can experience the first ever Ridgecrest Petroglyph and Heritage Festival in November, which will highlight American Indian rock art in desert mountains and the Indian Wells Valley, said Doug Lueck, executive director of the Ridgecrest Area Convention and Visitors Bureau.

The grand compromise: The search for a public lands resolution

A possible solution to the bickering over land use in a big chunk of Utah is being negotiated with all varieties of groups at the table under an effort shepherded by Rep. Rob Bishop, R-Utah. Despite the challenges, he and others remain optimistic.

The moon sets in Desolation Canyon Thursday, July 1, 2010, on the Green River. (Tom Smart, Deseret News)

By Amy Joi O'Donoghue
Deseret News

SALT LAKE CITY — Imagine Rob Bishop with his head under the hood of a car and a line of people behind him telling him the best way to fix it.

That's the scenario for the Utah congressman, the "car" in this case the delicate issue of federal lands oversight in Utah, and few would dispute the current system is a junker, rife with lawsuits, stalemates and uncertainty.

Bishop, a Republican, has spent the past 20 months as the fixer mechanic, brokering a public lands initiative process that attempts to meld a legislative solution to land use issues in seven Utah counties.

"Everybody is going to get something, but not everything they demand," he said. "That is the beauty of doing it big."

Bishop's bill will propose solutions for some 18 million acres in the extreme eastern part of Utah, with possible wilderness designations that number in the millions of acres. At the same time, it would carve out certainty for recreationers, the oil and gas industry, coal mining interests, potash extraction and more.

This is no minor tune-up.

Wednesday Bishop met with Interior Secretary Sally Jewell at her request. He said she wanted to know how his "grand bargain" legislative effort was coming along.

"It was positive," he said. "She wanted a quick update of where we were in the process...We did go through in detail over the kind of things we would be putting on the table. She actually seemed very positive about it going forward."

Positive and optimistic

"Positive" is the key word that swirls around any discussions on Bishop's public lands initiative. It is the oil that keeps this engine running, even in the face of such disparate interests.

"It's quite encouraging to see the stakeholders still hitched," said Kim Christy, deputy director of Utah's School and Institutional Trust Lands Administration (SITLA), which manages lands conveyed at statehood and held in trust for financial benefit of school children.

"I am the first to admit it is a long shot." But it is a shot.

The stakes are high for Utah.

Bishop's bill, which he hopes to ready to be introduced in January, involves land swaps — it could be SITLA's largest in its history — and would mean it could trade out high-value cultural or wilderness quality lands in exchange for acreage with potential for development.

It leaves the Grand Staircase Escalante National Monument off the table and it attempts to solve disputes in this swath of Utah that arise over oil and gas development, endangered species, off-roading, grazing and more.

Bishop believes faith in the continuing negotiations is helping to keep a possible monument designation in Utah by President Obama at bay, although no outright promises have been made.

"What they have said is they are positive about the process and as long as we seem to be making progress toward the solution that this would be the preferable solution where everyone is involved, as opposed to the president making a political statement," he said.

Bishop said each side can gain something and the threat of losing everything keeps everyone involved in the process.

"What we are seeing is everyone sees a potential win out of this process and that encourages them to continue on," he said. "It is important to say that unlike maybe a few years ago, when other people were less successful in trying this same kind of stuff, that everyone also views the potential of defeat."

Strange bedfellows

He said, "There have been times...that there was one side or the other who thought they had the guaranteed, safe upper hand as it was and if they stood pat, and stuck with the status quo, they would come out OK." He said now the threat of losing something provides a healthy détente.

This lands process, as a concept, has forged like positions for two unlikely bedfellows — Emery County and the Southern Utah Wilderness Alliance (SUWA).

Representatives of both say they prefer a wilderness bill to a monument designation.

"The impetus for us doing this is to have some local control for what gets designated as wilderness," said Ray Petersen, Emery County's public lands coordinator. "SUWA's Red Rock Wilderness deal or a monument designation is totally out of control, so if we can maintain some input, and some control in this process, why would we not want to do that?"

And from Scott Groene, SUWA's executive director: "I would rather we reach agreement on wilderness legislation. It would affect a much larger amount of wilderness and there could be greater certainty with legislation. We could resolve more issues."

Working the deal

Bishop is working with each of the seven counties to come up with individual public lands management proposals that contemplate wilderness designations and zones where oil and gas development, mining and recreation occur. It could be that all seven counties are part of the final package. It could be that all are not.

"All of them are just looking for certainty," Bishop said, who is still months out from having maps that detail what that proposal ultimately will look like.

Emery County is farther along in the process than the others, having submitted its plan to Bishop two years ago.

"We have negotiated a compromise over time, since this latest effort, going back a couple of decades," Petersen said.

When the Bureau of Land Management abolished cross-country motorized travel and instead designated only specific routes where it was allowed, Petersen said it was a rancorous and dramatic change for residents.

"It was the most painful process, a big change. For some of the users, it was nearly the end of the world to have to be confined to ride on trails."

The decision closed hundreds of miles of trails and was not well received, Petersen said. But within a couple of years the locals decided they could live with it.

"It took a lot of time to go through that. The end result is that we have better management of the resources."

Park expansion?

He said that same idea is at play with the idea of expanding Goblin Valley State Park by 136,000 acres. Such a move involves a transfer of BLM-managed lands and could be accomplished through Bishop's bill.

"The east side of those canyons, day in and day out, are the busiest slots on the swell. It is the farthest away from the BLM's Price field office and it really needs management now; the BLM acknowledges that."

So how is it accomplished?

"My advice is to start 15 years ago," Petersen said. "It takes time. You have to be committed to it. You cannot do it quickly and it is not going to be easy. You have to commit to collaborate, understanding that you are not going to get everything you want."

Groene said his group is waiting to see what the individual county plans look like and what ultimately is laid out on the bargaining table.

"We have said all along the only way we will reach agreement is everyone will have to make concessions, including ourselves."

Reaching agreement on a sensitive environmental issue in which industry and advocates have to compromise is not without precedent in Utah.

SUWA, the state of Utah, Bill Barrett Corp., and a host of others forged concessions in a programmatic agreement in 2010 hailed by then-Interior Secretary Ken Salazar as historic for what it gave up, and for what it allowed in the Nine Mile Canyon area.

Then, as in the process unfolding now, no one got what they wanted, but they got enough.

Petersen said ideally, public lands planning involves looking beyond one's own hood ornament as you're traveling toward your destination.

"There is plenty of resource, but every resource will not be used for every reason," Petersen said. "The big picture is we have to make land use decisions about what is best for the land, and sometimes that is not what is best for me, and I am not always going to get what I want."

Westerners fear Obama preparing monuments land grab

Canyon Rims area just north of U-111 is an area up for consideration for inclusion into an expanded Canyonlands National park. La Sal Mountain range lies far to the east. (Al Hartmann | The Salt Lake Tribune)

By Thomas Burr
The Salt Lake Tribune

Washington » Just south of Canyonlands National Park, the redrock wonders merge into a scrubland oasis with a peak that juts 11,000 feet into the sky. Mesas and buttes provide panoramic views and canyons, and ancient cliff dwellings offer a unique retreat.

It’s a region that holds sacred and historic value to the Navajo Nation, which has pitched Congress on creating the Diné Bikéyah National Conservation Area to protect the 1.9 million acres in San Juan County from development. But as with most things involving Congress, inaction has been the order of the day.

Even as supporters of a conservation area remain hopeful, they’re ready for Plan B: Asking President Barack Obama for a national monument.

Willie Grayeyes, and other members of the nonprofit Utah Diné Bikéyah, traveled recently to Washington to lobby Interior Department officials to designate the region north of the San Juan River and just outside the Navajo Reservation as a monument.

"The Utah delegates are only fumbling the ball. They aren’t really tackling it," Grayeyes said. A monument is a logical fallback to congressional designation, under which many of the current uses could continue.

Obama already has named a handful of monuments across the country — using his unilateral power under the 1906 Antiquities Act — and has promised more.

"I’ll use my authority to protect more of our pristine federal lands for future generations," he said in his State of the Union address earlier this year.

That commitment has some in the West fearing more intrusion by the federal government into their backyard, undermining locally driven efforts to decide the future of public lands. That fear isn’t without precedent.

"It makes me worried that [the president will] just ignore the wishes of the people of Utah and just do what he wants to — like Clinton did," Sen. Orrin Hatch, R-Utah, said in a recent Salt Lake Tribune interview. "Sometimes he does act unilaterally."

Two months before his 1996 re-election, President Bill Clinton stood on the rim of the Grand Canyon in Arizona and declared 1.8 million acres of public land in Utah as the new Grand Staircase-Escalante National Monument. With a swipe of a pen, he canceled a proposed coal mine in what Hatch described then as the "mother of all land grabs."

"Like the attack on Pearl Harbor, this massive proclamation came completely without notice to the public," Hatch declared on the Senate floor. "The biggest presidential land set-aside in almost 20 years was a sneak attack."

Environmentalists hailed the action as long overdue to preserve these unique and pristine lands. Momentum may be accelerating for Obama to pull a similar move.

Since 2010, Congress has passed only one bill designating wilderness — 32,500 acres of sand dunes in Michigan — while others have stalled, even those with local support. That includes 13,000 acres proposed by Rep. Jim Matheson, D-Utah, to protect the Wasatch watershed.

In the absence of congressional action, environmentalists and some Democrats are urging Obama to go it alone.

The push »

In January, 109 members of Congress — all Democrats — argued in a letter to the president that he has no choice but to use his power to name national monuments to protect treasured lands before they’re gone. The 2010-2011 sessions of Congress had been the first in four decades not to set aside a single acre of wilderness, the members noted.

"Some initiatives require presidential leadership," they wrote, "and should not be bogged down by political infighting and paralysis, increasingly common characteristics of Congress."

Rep. Raul Grijalva of Arizona, the top Democrat on the public-lands subcommittee, says it’s time for Obama to act, and if he named five or six monuments that had some local buy-in, he wouldn’t face a backlash.

"I don’t know if he’ll do any now before the midterm [elections], but after that I think you’ll see the preparations in earnest," Grijalva said in an interview.

Four of the five national parks in Utah started out as national monuments declared under the Antiquities Act, notes Jen Ujifusa, the legislative director of the Southern Utah Wilderness Alliance.

"History has shown that every time presidents protect the special places that we have in Utah, it’s an economic boon for the state; it makes the state look good," Ujifusa said. "Posterity does smile on these designations, and we wouldn’t have our mighty five national parks if we hadn’t had forward-thinking presidents of both parties who recognized the beauty we have in Utah."

Republicans in Congress, though, are trying to tie any president’s hands in making such declarations going forward. The House passed a bill by Rep. Rob Bishop, R-Utah, that would force any large monument designation to go through an environmental review and add a one-per-state-per-presidential-term limit. Several other measures — including one by Rep. Chris Stewart, R-Utah — would exempt states from the law, carve-outs that Alaska and Wyoming now enjoy.

"Teddy Roosevelt may have tried to save places, but, since [Jimmy] Carter, presidents have used this for political purposes not to try and preserve something," Bishop said. "We need to change that process."

Former Interior Secretary Ken Salazar warns that tinkering with this presidential power would be dangerous.

"What the House of Representatives did [in passing Bishop’s bill] was wrongheaded," Salazar said recently, "and I think it would be opposed by any president, whether the president happens to be Republican or Democrat, because it’s a significant intrusion into the long-standing authority with presidential powers that has been used effectively by Republicans and Democrats in office."

The Colorado Democrat, now in private practice, understands the frustration of folks who want Obama to set aside public lands and declare them off-limits to development.

"I think that would be great," he said. "I would urge [Interior Secretary Sally Jewell] and the president to do it."

There is no shortage of candidates.

Long list »

In February 2010, Bishop unearthed a draft Interior Department memo that listed 14 potential new national monuments and the arguments for why the administration should preserve them. That included two in Utah: San Juan County’s Cedar Mesa and Emery County’s San Rafael Swell.

The memo cautioned that "further evaluations should be completed prior to any final decision, including an assessment of public and congressional support."

Backing was definitely absent as Salazar was called before Congress to explain. He said there was no "hidden federal agenda" and the memo was just a form of thinking out loud.

The list, though, contained many areas that observers on all sides agree could conceivably be singled out for monument designation: the two from Utah, as well as Greater Canyonlands, the San Gabriel Mountains in California, Boulder-White Clouds in Idaho, the Organ Mountains in New Mexico and Tule Springs in Nevada.

Bishop recently toured Tule Springs with local officials hoping for congressional action. Failing that, it could be on Obama’s legacy list.

Jewell said recently that the administration is still focused on working with local officials on public-lands issues but that if Congress slow-plays, or sits on timely issues, there may come a time when the president has to step in.

She noted that some local areas actually lobby for a presidentially named monument because it brings more attention, tourism and economic development.

Still, she added, she supports Bishop’s effort to bring parties together to solve regional public-land disputes.

"Sitting down at a table constructively, working together, understanding the local view is a very constructive path forward," she said.

Those words are nice to hear but don’t make up for Obama’s State of the Union comments.

San Juan County Commission Chairman Bruce Adams says designating the Diné Bikéyah area as a national monument against the community’s wishes would be as controversial as the Grand Staircase announcement was in Garfield and Kane counties.

"It will not be received well," Adams said. "It will look like overreach on the part of the administration, more federal intrusion into the lives of the people who came here to pioneer a part of the country no one wanted."

National Park Service Slams Solar Project Near Mojave Preserve

Part of the Soda Mountain Solar Project site (Courtesy © Michael Gordon)

by Chris Clarke
KCET.org

The National Park Service isn't happy about a proposal to build a large solar facility on almost 4,200 acres next door to the Mojave National Preserve. The agency is citing the project's threats to wildlife, rare plants, groundwater, air quality, and wilderness characteristics of the 1.6 million acre unit.

The Soda Mountain Solar Project, which would be built by Bechtel on either side of Interstate 15 along the northwest edge of the Preserve, would pose serious threats to bighorn sheep, desert tortoises, migratory birds, and one of the rarest fish in the world, according to a comment letter on the project's Draft Environmental Impact Statement (DEIS) filed by Preserve Superintendent Stephanie Dubois.

The project would generate a maximum of 350 megawatts of power by putting solar panels on more than half the project's total footprint: about 2,200 acres. But environmental advocates are saying that the project's damage to the Preserve isn't worth the energy the plant would generate -- especially considering no one seems to be interested in buying the power.

Due in part to the project's remoteness and lack of transmission capacity despite two lines running near the site, Bechtel has been unable to secure an agreement with any utility to buy power from the Soda Mountain project. "We believe this is the poster child for ill-sited projects in the California desert," said National Parks Conservation Association (NPCA) representative Seth Shteir in an interview with Greenwire's Scott Streater. "We think this project has so many negative impacts to the natural resources in the Mojave National Preserve and adjacent wilderness study areas that it sort of defies common sense to site the project there."

Among the issues identified in the National Park Service comment letter are blocking a future migration corridor for the Preserve's bighorn sheep into the North Soda Mountains. Pointing out that bighorn sheep tend to avoid any kind of human-built infrastructure even in the absence of humans themselves, NPS states that "[i]f the project moves forward, bighorn sheep migration between the north and south areas of the project will likely be permanently impeded."

That's a problem, as the bighorn herd south of the project site, in the hills near the Desert Studies Center at Zzyzx, are one of a handful not yet exposed to the pneumonia currently ravaging sheep populations elsewhere in the Preserve. Sealing off the sheep's possible northern migration corridor could seal their fate if the pneumonia epidemic approaches from the south.

NPS also expressed concern about the project's effect on the endangered Mohave tui chub, whose sole native, non-transplanted population can be found in MC Spring a few miles downhill from the project. There are more of the chub in the artificial pond Lake Tuendae at Zzyzx. Bechtel intends to pump up to 60 acre-feet of groundwater from the project site each year to use for washing solar panels: if that affects the flow of groundwater that supplies MC Spring and Lake Tuendae, that's a problem for the fish.

The BLM argues in the project's DEIS that since it's not known what effect pumping would have on local groundwater, that there won't be a problem. NPS disagrees. "Without conclusive knowledge about the hydrology of the Soda Mountain Valley aquifer," says Dubois in the Park Service's comments, "the Project risks the consequence of irreversible damage to the habitat and the viability of this highly endangered species."

NPS also criticizes the project's likely impact on air quality from fugitive dust emissions, dark night skies, and risk of all those solar panels to the flocks of migrating birds regularly drawn to the area's permanent and ephemeral wetlands.

The Park Service ends its comments by asking for a meeting with BLM staff to discuss the project further. The group Basin and Range Watch reports partway down this page that the BLM's maps of the Soda Mountains project used in public meetings last month didn't show the boundaries of the Mojave National Preserve, so it's probably a good thing that NPS reminded BLM that they, and the Preserve, exist.

Feds Declare 2 Endangered Death Valley National Park Plants Recovered

Eureka Valley evening primrose (USFWS/Flickr/Creative Commons License)

by Chris Clarke
KCET.org

Two plants found only in Death Valley National Park that have been on the Endangered list since 1978 have since recovered, according to the U.S. Fish and Wildlife Service, which is proposing to remove them from the list.

The Eureka Valley evening primrose and the Eureka dunegrass have been successfully protected, says USFWS, from the main threat that prompted their inclusion on the Endangered Species list 36 years ago: off-road vehicle riders trampling the Eureka Dunes. The plants are found only on those dunes, which have been part of Death Valley National Park since the passage of the California Desert Protection Act in 1994.

Though USFWS says the plants still face threats from climate change and from competition from exotic weeds, especially tumbleweeds, the agency says those threats aren't dire enough to keep the plants on the Endangered list, and is proposing to delist both species.

The proposal, which will be published in the Federal Register on Thursday, follows a 2010 petition from the Pacific Legal Foundation that urged USFWS to remove the two species from protection under the federal Endangered Species Act (ESA). (Both plants only grow in federally designated wilderness within Death Valley National Park, so the likely boon to PLF's conservative constituency in getting the plants delisted would seem purely symbolic.)

The biggest threat to the Eureka Valley evening primrose (Oenothera avita eurekensis) and the Eureka dune grass (Swallenia alexandrae), disturbance from off-road vehicle use and the associated campsites in the dunes, came to a halt even before the Eureka Valley was added to Death Valley National Park. The Bureau of Land Management declared the dunes and the surrounding area off-limits to off-road vehicles in 1976, in response to the proposed listing of both plants as endangered under ESA. In 1980, the BLM declared the Eureka Dunes area an Area of Critical Environmental Concern, an administrative designation that allows the BLM to better protect the landscape.

Soon after the dunes were transferred from the BLM to the National Park Service in 1994, the whole area was declared a federal wilderness area, permanently keeping vehicles off the dunes. An October 1997 article in Esquire on the new sport sandboarding identified the Eureka Dunes as a choice destination for the sport, raising concerns that boarders would crush plants. The Park Service prohibited the sport on the dunes in 2002.

The Park Service isn't as able to prohibit the spread of tumbleweeds, a.k.a Russian thistle (Salsola). The invasive plant has grown on the dunes since the 1970s, likely brought in by livestock in the north end of the valley. But while Salsola is a serious threat to other native plants throughout the west, the evening-primrose and the dune grass seem to do fine even in the presence of tumbleweeds.

Despite the symbolic victory for the anti-environmental Pacific Legal Foundation, environmental groups are applauding the proposed delisting as well. "These two unique California plants join the long list of species the Endangered Species Act has saved from extinction," said Tierra Curry, a senior scientist at the Center for Biological Diversity. "From the blue whale to Eureka dune grass, this remarkably successful law has prevented the extinction of our country's most vulnerable wild heritage for 40 years now."

The USFWS delisting proposal now launches a 60-day public comment period.

Interior secretary says Obama may bypass Congress on monuments

Interior Secretary Sally Jewell says she may advise Obama to act alone to create new national monuments if Congress doesn't act.

Interior Secretary Sally Jewell says she may recommend that President Obama act unilaterally to create new national monuments if Congress remains gridlocked. She recently visited some sites in California. (Dan Joling / Associated Press / September 3, 2013)



By Julie Cart
Los Angeles Times

SAN FRANCISCO — Interior Secretary Sally Jewell says she will recommend that President Obama act alone if necessary to create new national monuments and sidestep a gridlocked Congress that has failed to address dozens of public lands bills.

Jewell said the logjam on Capitol Hill has created a conservation backlog, and she warned that the Obama administration would not "hold its breath forever" waiting for lawmakers to act.

"The president will not hesitate," Jewell said in an interview in San Francisco last week. "I can tell you that there are places that are ripe for setting aside, with a tremendous groundswell of public support."

Congress has not added any acreage to the national park or wilderness systems since 2010. Jewell blamed ramped-up rhetoric in Washington for the impasse. She said the appetite for preserving American historic and cultural sites remains high but some officials seek to avoid the appearance of publicly embracing more government protection.

Jewell, who has been on the job scarcely six months, came to California to promote several initiatives and tour a site that could be added to a national monument along the Mendocino coast.

She began with a meet and greet at the Golden Gate National Recreation Area. On a bright day with gulls wheeling against a backdrop of the Golden Gate Bridge — the velvety green Marin headlands in the distance — Jewell stood in one of the nation's most-visited national parks and made the case for the value of public lands.

Among the public events on Jewell's schedule was a visit to the 1,255-acre Stornetta Public Lands site on the Mendocino County coast, north of Point Arena. Several members of the California congressional delegation have proposed adding the site to the California Coastal National Monument.

It's one of many pending federal bills that would conserve land in California. One bill would expand the boundary of Yosemite National Park, and another would create a national monument in the San Gabriel Mountains.

Sen. Dianne Feinstein (D-Calif.) has proposed sweeping legislation that would add thousands of acres to Joshua Tree and Death Valley national parks and the Mojave National Preserve, protect 74 miles of waterways as wild and scenic rivers, designate 248,000 acres as wilderness and create the Sand to Snow National Monument running from the floor of the Coachella Valley to the peak of Mt. San Gorgonio.

The conservation community has a long list of places that it believes require protection, but activists complain that with sequestration budget cuts on top of congressional reluctance to promote conservation, little is getting done.

"It's been nearly impossible to figure out how to get more funding for conservation work, whether it's just getting money to run agencies or getting full funding for the Land and Water Conservation Fund," said Kristen Brengel, who lobbies Congress for the National Parks Conservation Assn. "There is almost no hope for the wilderness or monuments bills — they are being held up."

Brengel said Jewell's willingness to recommend that Obama act unilaterally, using powers granted to presidents under the Antiquities Act of 1906, gives hope to conservationists who see the administration as indifferent to environmental issues.

"The take-away is she's kind of teed herself up to make those recommendations to the president," Brengel said. "They are capable of making decisions on conservation. They just haven't made many of them."

The Antiquities Act gives presidents authority to name new monuments — a power generally residing with Congress. Presidents going back to Theodore Roosevelt have used the act to set aside natural wonders, including the Grand Canyon in 1908, which was later named a national park against the wishes of local officials.

But use of the act in recent years has sparked strong protest. Most notably was President Clinton's decision to designate the Grand Staircase-Escalante National Monument in southern Utah in 1996, putting one of the nation's largest coal reserves off limits to mining.

Utah lawmakers, led by then-Gov. Michael O. Leavitt, a Republican, bitterly complained that federal authorities failed to consult with local communities before elevating protections on 1.8 million acres of rugged red-rock canyons. Further antagonizing opponents, Clinton signed the act while sitting at a ceremonial desk placed on the rim of the Grand Canyon in Arizona.

Clinton used the Antiquities Act more than any other president. Obama has used the law to designate nine new monuments, focusing mainly on historic sites such as the Charles Young Buffalo Soldiers National Monument in Ohio, the Harriet Tubman Underground Railroad National Monument in Maryland and the Cesar E. Chavez National Monument in Kern County, which is poised to become a National Historic Park.

Learning to bend: Settling Utah's road wars

BOOK REVIEW

By Ed Marston
High Country News

Roads in the Wilderness: Conflict in Canyon Country
Jedediah S. Rogers
242 pages, hardcover: $39.95.
University of Utah Press, 2013.

Some fear that we will saddle our children with trillions of dollars in federal debt. That would be too bad, but it would be a minor inconvenience compared to what our forefathers cursed us with: the 1866 federal law known as R.S. 2477. Like other such gifts -- including the 1872 Mining Law -- R.S. 2477 lays a heavy, destructive, expensive hand on the present.

The statute's 19 words said that anyone who wished to could build a public "highway" across the West's public land. That highway could not be extinguished by the later creation of a homestead, a national park or even a wilderness.

R.S. 2477 was repealed in 1976, but its highways -- sometimes nothing more than rough trails made by cowboys herding cattle -- are still being fought over in the West. That is especially true in Utah, where the state has launched 30 federal lawsuits to establish 36,000 miles of mechanized rights of way through existing wilderness, national parks and monuments, and wilderness study areas.

Into this expensive, litigious mess bravely comes the young historian Jedediah S. Rogers. With Roads in the Wilderness: Conflict in Canyon Country, Rogers attempts to connect two warring ways of life. He asks us to look at roads not only as physical structures but as symbols of culture and history. In Rogers' telling, the Mormons of southern Utah regard the primitive roads their ancestors pioneered as comparable to the naves of medieval cathedrals. To interfere with the public's ability to travel them amounts to sacrilege. But to those who favor wilderness, the sacrilege is motorized travel through red-rock canyons and riparian areas.

Rogers humanizes the conflict over wilderness by portraying some of the people most involved. He is sympathetic both toward Edward Abbey, author of Desert Solitaire and The Monkey Wrench Gang, and toward Abbey's nemesis, uranium miner and Lake Powell resort developer Calvin Black, immortalized by Abbey as the character "Bishop Love."

Abbey hated roads -- the better the road, the more he hated it -- and the reservoir he called Lake Foul. Black appreciated Lake Powell because it also served as a highway, and so loved roads, writes Rogers, that he assumed the 1960s slogan "Black is Beautiful" referred to pavement.

Given the area's bitter history -- which includes the Grand County commissioners repeatedly, and feloniously, sending bulldozers into Moab's Negro Bill Canyon to "refresh" the disappearing road -- what could bring the two sides to the table now?

Partly it is the passing of generations; both Black and Abbey are gone, for example. And partly it is exhaustion from decades of expensive struggle.

But it may also be fear of the future: Utah could win its R.S. 2477 cases, or President Barack Obama might unleash the 1906 Antiquities Act, as President Clinton did at Grand Staircase-Escalante, and create de facto wilderness. Or both events might happen, further complicating what is already a mess.

Rogers' book is both perfectly timed and a sign of the times, appearing as Utah Congressman Rob Bishop seems to be progressing toward a two-state solution in Utah, with some public land being protected and some now-protected land being opened to development.

Although the book is well-timed, it isn't always well-written, and it lacks clear maps to illustrate chapters about the road wars in places like Arch Canyon and the Book Cliffs.

While Rogers lacks the partisan passion of an Abbey or Black, he has passions appropriate to this time: for compromise and the merging of interests. He believes that if the two sides were to bend a little, each would win more than they could by defeating the other in Congress or the White House or the courts.

He urges environmentalists to see desert homesteads, mine shafts, abandoned orchards and even roads as part of a landscape shaped by humans but still dominated by nature. He quotes environmental historian Bill Cronon, who has written that the exclusion of man's works from nature is dehumanizing.

And he asks southern Utah's Mormon residents to acknowledge that the heroic pioneer days, when wagon trains were lowered to the Colorado River by rope down the Hole in the Rock notch, are over. We have blasted an interstate highway through the San Rafael Swell and turned parts of the Colorado, San Juan and Escalante rivers into ponds. Progress now, Rogers argues, is not demonstrated by how much more nature we can bulldoze, but by how much we can refrain from conquering:

"In a country -- a world -- that is increasingly developed one acre at a time, we need these places to keep us rooted. The (Colorado Plateau) region is one of the few places where large tracts of wildlands exist."

Utah counties want to take the roads less traveled -- and keep them

The Island Park Road, which descends 17 miles through sagebrush and pinyon and juniper trees before ending on the banks of the Green River, is one of more than 12,000 roads Utah has claimed under R.S. 2477. (Photo by Phil Taylor.)

Phil Taylor
Greenwire

DINOSAUR NATIONAL MONUMENT, Utah -- A bullet-riddled sign in Utah's pinyon-juniper desert warns of a winding highway ahead.

It's a harbinger of the tortuous political and legal fight among Utah's counties, environmental groups and the Bureau of Land Management that could dramatically change management of the area's stark deserts, red rock canyons and backcountry lands.

Key witnesses say they remember Island Park Road being used by jeeps and trucks at least as far back as the 1950s for livestock operations, farming, fishing and other recreation.

That, according to an 1866 mining law, means management of the road rightfully belongs to Utah, not BLM or the National Park Service, over whose land the road crosses.

The 17-mile road, which winds past ranchlands and American Indian petroglyphs to a historical ranch along the Green River in Dinosaur National Monument, is one of more than 12,000 roads that Utah and its counties last year claimed as their own in federal district court.

Spanning about 36,000 miles, the road claims represent one of Utah's boldest bids yet to assert control over federal lands and, according to conservationists, the most serious threat to Utah's remaining wildlands.

Utah claims the roads at stake have been used for decades by hunters, cattle ranchers, mineral speculators and motorized vehicle enthusiasts, and have either been shut down or restricted, or are in danger of closure by the federal government.

"There will be economic benefits derived from these roads if they're kept open," said Anthony Rampton, Utah's assistant attorney general and lead litigation counsel for the roads lawsuits. "That benefit will come from ranching enterprises, oil and gas development, wind development, solar development, tourist income, hunting and fishing income."

But unlike similar campaigns by Utah to "take back" federal lands through eminent domain or by hamstringing federal law enforcement agents, the law appears to be on Utah's side in its road battle.

In March, Utah's Kane County claimed a major victory when a federal district judge awarded it rights of way over 12 of 15 roads it had claimed, four of which run through the Grand Staircase-Escalante National Monument (Greenwire, March 25). Some of those 89 miles also run through the Paria-Hackberry wilderness study area, which BLM recognized for its roadless characteristics and which environmentalists have eyed for future wilderness designation.

"Given the facts that we have and the law, we're going to be able to prove the vast majority of these roads," Rampton said of the state's Revised Statute 2477 claims, which are located in 22 of its 29 counties. "It shouldn't have been a surprise to anyone."

The ruling was a shot across the bow for conservationists who fear the road claims, if successful, would fragment Utah's best remaining backcountry, including scenic national parks and monuments. Solitude would be lost, invasive weeds would spread and archaeological sites would be exposed to looters, they say.

Conservationists have assembled a legal team of more than 25 attorneys from national and local law firms to work alongside federal attorneys against the state's claims.

Steve Bloch, conservation director for the Southern Utah Wilderness Alliance, said a majority of Utah's road claims are primitive dirt tracks, not the "highways" that the 1866 law aimed to protect.

"The overwhelming majority of these routes simply noodle out into the desert," Bloch said.

The claims run through every national park except Bryce Canyon and Arches and through at least two designated wilderness areas and would fragment habitat for vehicle-skittish elk and sage grouse, according to SUWA.

The road claims also travel more than 500 miles of wilderness study areas, 2,000 miles of national monuments and 3,600 miles of proposed wilderness, SUWA said. Few of them lead to grocery stores or schools or promote commerce, Bloch said.

"They're really out to thwart congressional wilderness designation," he said. "That's why the stakes are so high in Utah."

Barring a settlement, the legal battle promises to be a costly one -- one rural county in southeast Utah has already spent $1 million litigating a single road in Canyonlands National Park -- and could easily last decades.

"If we can't resolve them ourselves amidst negotiation, we have no choice but to go to court," Utah Gov. Gary Herbert (R) said in an interview. "I'm not willing to continue to kick the can down the road and put off getting that answer."

If Utah prevails, experts say other Western states could follow suit, kicking off an even larger battle.

'Short, sweet and enigmatic'

Utah's road claims -- filed in several massive complaints in spring 2012 -- fall under an obscure 1866 mining law designed to promote settlement in the Western frontier.

"And be it further enacted," R.S. 2477 read, "that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."

The law was "short, sweet and enigmatic," according to the 10th U.S. Circuit Court of Appeals in a 2005 ruling.

The law was an opportunity for miners and homesteaders to build trails or roads over any public lands not yet reserved or claimed for private use. Most of the roads in the West were established under its authority.

As Utah's Supreme Court noted more than 80 years ago, "It was a standing offer of a free right of way over the public domain," which required no formal acceptance or approval by the federal authorities.

That all changed in 1976 when Congress repealed R.S. 2477 as part of the Federal Land Policy and Management Act, a watershed law that directed BLM to retain and preserve its lands rather than dispose them for private development.

But Congress grandfathered any valid R.S. 2477 right that existed at the time.

As a result, counties seeking legal recognition of their R.S. 2477 claims must prove -- through historical records, photos or witness testimony -- that the roads were used as far back as the 1960s.

But witnesses who can testify to using the roads are getting old and dying, creating a sense of urgency for Utah counties.

"We've probably lost between half and three-quarters of our witnesses to death," Rampton said. "We're losing more every day."

The state is currently deposing hundreds of "at-risk" witnesses in courthouses, schools, county commission chambers, BLM offices and people's homes.

"'I killed my first buck here. We corralled cattle here,'" Rampton said. "That's the kind of detail we're able to get from these witnesses."

Last month alone, attorneys from the Justice Department, Utah and its counties, and SUWA visited Tooele, Garfield, Beaver, Grand and San Juan counties to take testimony from 10 witnesses.

Pete Steele, a 76-year-old witness from San Juan, testified for three days on roughly 100 roads. Steele, a former cattle rancher, tour guide, BLM employee and San Juan employee, said he used R.S. 2477 roads south of Canyonlands for livestock operations, hunting, predator control, hiking, and other recreation and traveling, according to his affidavit.

"When you spend time with the people who live and work on these roads and have lived there all their lives, you realize they are important, and they're important for intangible reasons," Rampton said. "For instance, there are a lot of hunters who use these roads. They have places they've gone all their lives. They've gone with their fathers and grandfathers and families. Traditions have built up around the use of these roads."

'The whole thing is a travesty'

But critics of Utah's claims say the vast majority of the roads are so-called Class D routes that have never been maintained and aren't critical to the state's transportation needs.

Many were created by off-roaders, oil and gas prospectors or wanderers who left the trodden path decades ago. In the arid desert, where plants and shrubs take hundreds of years to regrow, an improvised two-track can take centuries to fully restore itself.

"People argue about the meaning of the word 'highway,' but it's hard to imagine it means a random oil and gas seismic line from the '60s that hasn't been driven except once every five years," said Kevin Walker, a SUWA volunteer who lives in Moab and works for Microsoft. "To me that seems like abusing the law."

On a searing hot July day, Walker hunted for R.S. 2477 claims along Browns Hole Road, a dirt route that heads east from U.S. 191 toward the La Sal Mountains.

"See that faint line over there?" he asked, pointing to a strip of younger, lighter sagebrush that vanished into a hillside.

It was an oil and gas seismic line, one of thousands that were carved in the 1950s and '60s by prospectors who used dynamite to locate mineral deposits. San Juan County is claiming it under R.S. 2477.

"They were never planning on coming back," Walker said of the prospectors, who are said to have been paid by the mile. "Someone else comes along and sees the tire tracks and tries the road, even though there's nothing there."

Wearing a blue bucket hat, running shorts and sandals, Walker said he takes pride in finding the faintest R.S. 2477 claims. He mapped many of these routes decades ago while taking an inventory of roadless lands for the Utah Wilderness Coalition, of which SUWA is a member.

He said many of the counties' R.S. 2477 routes were even fainter when he first walked them 15 years ago. Since the lawsuits were filed, counties have systematically driven all the routes, he said.

"When the counties claim they need these roads, it's disingenuous and demonstrably false," he said. "What they really want is to control the land."

Once an R.S. 2477 claim is granted, BLM has almost no way to close them down, even if it needs to preserve them for wildlife or quiet recreation. It effectively precludes future wilderness.

"These are federal lands, and the federal government should be able to manage them in a rational way and not encumbered by this loophole in a very ancient law," Walker said. "To me, the whole thing is a travesty."

A handful of other R.S. 2477 road claims spur haphazardly from the Browns Hole Road. One of them narrows into a rocky trough before petering out into the juniper and pinyon flats.

In the late 1990s, Grand County decided to increase the miles of Class B roads in its system to prevent a reduction in state subsidies for road maintenance, Walker said. It unilaterally bladed minor roads and unmaintained jeep trails, he said, but "BLM didn't have the guts to stand up to them."

Several miles south of here, the R.S. 2477 battle is playing out at Hatch Point, a sagebrush plateau coveted by oil and gas and potash developers as well as SUWA and the Sierra Club, which have proposed including the land in a 1.4-million-acre Greater Canyonlands National Monument.

A 22-mile paved road takes visitors to the Needles Overlook, which offers miles of stunning views over labyrinth red rock canyons underneath Canyonlands park.

Hatch Point has plenty of dirt roads, though the area's dense brush, rock buttes and spires make them hard to see. San Juan has staked dozens of R.S. 2477 claims here.

One of them leads to a dried-up stock pond and a field of invasive cheatgrass and Russian thistle. It fades a couple of hundred yards into the desert before disappearing.

"It just goes out here and dies," said Liz Thomas, an attorney for SUWA. "It doesn't circle back. It wasn't intended to go anywhere."

Court-awarded road claims would make the area an easier target for mineral development and potentially a weaker candidate for a national monument.

'A wasting kind of witness'

Roads support San Juan's mineral economy -- oil, gas and mining account for 60 percent of its tax base -- but they also preserve recreation, said John Fellmeth, who helps run the county's roads preservation project.

San Juan claimed roughly 1,800 roads in its R.S. 2477 lawsuit, even though some have never been driven by county officials.

"It looks like there might be a nice overlook," Fellmeth said, pointing to a narrow rust-colored dirt path at Hatch Point.

He was joined by Nick Sandberg, the county's public lands coordinator who previously worked more than 30 years at BLM's Monticello field office, which oversees Hatch Point.

Neither was sure where the road went or what it was used for.

It likely provided access for livestock growers, Sandberg said, pointing to a salt block on the side of the road that may have nourished cows or sheep.

The road ended at the plateau's edge, where a dirt clearing offered sweeping views of Heart Canyon nearly a thousand feet below and the "six shooter" pinnacle -- a sandstone spire named by early cowboys for its resemblance to pistols. The jagged rocks of Canyonlands could be seen in the distance.

The road certainly led somewhere, though whether it is a "highway" is a matter of dispute that will be decided by a federal judge.

Fellmeth said there are about 80 "at-risk" witnesses in San Juan. Some testify on as many as 60 roads in a day, he said.

"Most of them are fairly old, and even those who are still with us, their mental faculties are deteriorating quite dramatically," he said. "It's a wasting kind of witness."

Critics have questioned whether witnesses in their 70s or 80s could accurately identify the roads they used when Lyndon Johnson was president.

Before they testify, witnesses are driven on the roads by the state's attorneys to "refresh their recollection," said Bloch, the attorney from SUWA.

Courts will have to wrestle with issues of credibility, as they do with all trials.

From the Needles Overlook at Hatch Point, Fellmeth pointed to an airstrip about a thousand feet below that may have been used to transport oil and gas equipment to the Lockhart Basin.

Visual clues like that can help orient R.S. 2477 witnesses, Fellmeth said.

However, they can also be deceiving. Less than a mile away is a similar airstrip with similar red rock surroundings.

'We have a high card'

County officials in Utah see R.S. 2477 as a potent defense against the president's use of the Antiquities Act to designate national monuments.

The 1906 law is controversial in Utah, where President Clinton designated the 1.9-million-acre Grand Staircase-Escalante National Monument in 1996 over the objections of local officials. Monuments bar future mineral claims.

R.S. 2477 adds another twist to Utah's political mine field.

"It just gives the counties an extra card to play that they haven't had in the past," said Lynn Jackson, a councilman for Grand County, whose economy depends heavily on mountain bikers, off-highway vehicle riders and national park visitors.

"We know we have a high card," Jackson said. "For now, we're just going to tuck it up our sleeve, and if we need it, we'll play it."

Utah counties were politically emboldened by Kane County's R.S. 2477 victory, Jackson said. Grand and five other counties are currently negotiating with conservationists and other stakeholders on a major public lands bill.

"SUWA is concerned," Jackson said. "If we take all these 12,000 segments, they're saying 'Holy crap, we're likely to lose all that ... maybe we should negotiate.'"

Jackson, who formerly worked for BLM for 32 years, opposes the proposed Canyonlands National Monument, which he argued would hamper oil and gas and potash development in Grand, stifling economic diversification.

On a recent drive through the butte-marked desert lands northwest of Moab, Jackson pointed to a sandy, riparian wash passable only by motorcycles that descends to an overlook above the Green River.

The path, an R.S. 2477 claim, was kept open in BLM's travel management plan, even though conservationists wanted it closed, Jackson said. The county believes it should have the final say over who uses the road.

"That's a huge draw to the motorized recreation economy," he said. "They're the ones who spend the most money around here."

A spreading fight?

Litigating all of Utah's R.S. 2477 roads to the 10th Circuit could take well over a decade and cost billions of dollars.

"Obviously it's kind of insane to try to litigate 12,000 roads," said one top Interior official who asked not to be named. The first Kane County case, which involved 15 roads, took nine days of trial and field trips, the official said.

The hope is that as cases are decided at the appellate court level, parties will have a better foundation for settlement talks.

Since March, a handful of cases in Garfield, Kane, Emery and San Juan counties have been active. Meanwhile, the state is continuing to depose its old and infirm witnesses in case the rest of the roughly 20 cases become active.

While conservationists have criticized the state's lawsuits as a waste of taxpayer money, the R.S. 2477 campaign is widely supported in the Utah Legislature, where lawmakers earlier this year passed a special appropriation to compensate counties for legal services from outside firms including Holland & Hart. The firm is estimated to have provided at least $1.8 million in services to Kane County alone, The Salt Lake Tribune reported in March, citing former BLM Director and Utah public lands official Kathleen Clarke.

Under the plan, the state would pay for half of the first $700,000 in legal bills a county incurs and would pay the majority of bills beyond that.

Conservationists are skeptical whether the federal government will adequately represent their interests.

According to SUWA's Bloch, conservation groups have twice as many attorneys working on R.S. 2477 cases than the Justice Department. Pro bono work is being provided by law firms Kirkland & Ellis LLP, Cooley LLP and Jenner & Block LLP, he said. There are also two local Salt Lake City firms, former Earthjustice attorney Robert Wiygul, and SUWA and Wilderness Society attorneys working on the cases.

The federal government's appeal of the Kane County case to the 10th Circuit was heartening, Bloch said.

Utah counties have lost some notable R.S. 2477 cases too.

For example, a federal district judge in 2011 rejected San Juan County's claim that several miles of Salt Creek Canyon in Canyonlands National Park was an R.S. 2477 route. "A jeep trail on a creek bed, with its shifting sand and intermittent floods is a by-way, but not a highway," wrote U.S. District Judge Bruce Jenkins (Land Letter, June 2, 2011).

San Juan and Utah appealed the case to the 10th Circuit, which could issue a decision any day.

Utah's R.S. 2477 claims are being closely watched by environmental attorneys as well as other Western states looking to loosen Washington, D.C.'s reins over public lands.

The Vermont Law School included Utah's road claims in its "Top 10 Environmental Watch List 2013," warning that if federal courts affirm even a fraction of the state's claims, it could set off a cascade of threats to national parks, wilderness study areas, monuments and other protected lands across the West.

"Other western states are likely watching Utah's land grab, waiting to see what the federal courts will do with these 26 claims," wrote Hillary Hoffmann, a professor at the law school, and student Sara Imperiale.

Alaska has already earmarked money to study potential R.S. 2477 claims, and Nevada, the birthplace of the Sagebrush Rebellion, would jump on the R.S. 2477 "bandwagon" if Utah prevails in its lawsuits, Hoffmann and Imperiale said.

Attempts to settle

The ongoing litigation has created a great deal of uncertainty on all sides, including BLM, said Robert Keiter, a professor of public lands for the University of Utah who serves on the board of the National Parks Conservation Association, which has criticized the state's road claims.

"That impacts the BLM's ability to make long-term land and resource management decisions wherever these claims are being pressed," he said.

The road claims also complicate a broader effort by Utah GOP Rep. Rob Bishop to pass a comprehensive public lands bill for six eastern Utah counties -- Uintah, Emery, Carbon, Grand, Wayne and San Juan -- that would consolidate lands for oil and gas, potash and mining development while designating others for off-highway vehicles, mountain bikes and wilderness.

Bishop said conservation groups he is working with -- which include SUWA, the Wilderness Society, the Pew Charitable Trusts, the Sierra Club and the Nature Conservancy -- have "legitimate concerns" that future road claims could tarnish wilderness designations, which, by definition, aim to keep the lands "untrammeled by man."

Scott Groene, executive director of SUWA, said Washington County in 2009 agreed to have wilderness designations under legislation passed by former Sen. Bob Bennett (R-Utah) but has since filed R.S. 2477 claims in those areas.

"Utah's 20-plus lawsuits against the United States over R.S. 2477 may be the biggest hurdle to overcome in trying to reach agreement here," Groene said. "Fortunately, Congressman Bishop has said he believes the R.S. 2477 issue should be resolved as part of this legislation. We are in agreement with him on this point."

Last month, the various sides reached a rare accord to amicably resolve a handful of the disputed road claims in remote mountains west of Salt Lake City.

BLM, Utah, Juab County and environmental groups announced a settlement designed to balance the protection of primitive lands in the Deep Creek Mountains wilderness study area with access for motorized vehicle users (Greenwire, Aug. 20).

It marked the first negotiated settlement in Utah's larger bid over the R.S. 2477 claims.

Congress has tried unsuccessfully a handful of times to address the conflict.

Bills by then-Rep. Mark Udall (D-Colo.) nearly a decade ago sought to narrow the definition of R.S. 2477 rights of ways. Bills by Rep. Steve Pearce (R-N.M.) in 2006 and 2007 would have given states and counties more influence in the process. But lawmakers have done little since then.

Some observers are hopeful Bishop can resolve some claims in eastern Utah.

"There's an opportunity for some, if not all, of those roads to be addressed as a result of this legislative process," said Cody Stewart, an energy adviser for Herbert and former Bishop aide. "It may be one of the negotiated pieces that helps bring this across the finish line."