Judge orders new plan for dam releases into Grand Canyon

Federal officials must reconsider the irregular water releases from Glen Canyon Dam, which may harm the humpback chub, an endangered fish.
Endangered Humpback Chub (AZ Game Fish)

By Nicholas Riccardi
Los Angeles Times

Reporting from Denver -- Federal officials must reconsider how they release water from Glen Canyon Dam into the Grand Canyon in order to protect an endangered fish, the humpback chub, a federal judge ruled Wednesday.

Environmental groups have long argued that the irregular releases from the dam just above the canyon damage the fish's native environment, erode beaches and wash away ancient ruins in the canyon.

Nikolai Lash of the Grand Canyon Trust, which filed a lawsuit along with Earthjustice, said the U.S. Bureau of Reclamation should release water in regular flows, which would do less damage. "They're better at preserving the beaches, the archaeological sites and the fish," he said.

Officials at the bureau could not be reached for comment late Wednesday.

For much of its existence, Glen Canyon released water on timetables designed to benefit Southwestern power companies, whose demand for hydroelectric power peaks during the day.

Last year the U.S. Fish and Wildlife Service, reversing an old agency opinion, found that the fluctuating dam releases did not violate the Endangered Species Act. On Wednesday, U.S. District Judge David G. Campbell ruled that that revision was improper and ordered the agency to reconsider how the dam flows may harm the endangered fish.

Campbell gave the government until November to file a new plan and ordered that, should it find the releases threaten the chub, it must propose a new schedule.

Court denies Utah counties' monument road claims

Counties sued over water rights and road access

By Patty Henetz
The Salt Lake Tribune

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

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

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

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

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

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

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

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

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

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

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

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

Salazar cancels Bush-era energy leases in Utah

The Interior secretary voids the December sale of 77 environmentally sensitive parcels to oil and gas companies






By Nicholas Riccardi and Jim Tankersley
Los Angeles Times






Reporting from Washington and Denver — The Obama administration Wednesday canceled 77 leases its predecessor sold to oil and gas companies that wanted to explore beneath the red rock country of Utah, the first of several expected steps to reverse the Bush administration's Western legacy.

"We need to responsibly develop oil and gas supply to protect us from our dependence on foreign oil," Interior Secretary Ken Salazar said, "but we need to do so in a thoughtful and respectful way."

The December auction of more than 100,000 acres of federal land was one of a number of last-minute environmental changes made by the Bush administration that Salazar and the Obama administration are expected to wrestle with over the coming months.

Salazar has said he wants to revisit Bush-era regulations that open much of the West to oil shale development, the delisting of the gray wolf as an endangered species, and a rule that allows federal agencies to avoid consulting scientists on whether the Endangered Species Act applies to certain projects.

"Many of those decisions were rushed," Salazar said in an afternoon conference call with reporters.

Environmental groups said the new administration has its work cut out for it.

"There's so much to be done with the Bush administration legacy," said Robin Cooley, an attorney with Earthjustice, "that we're going to be dealing with it not for months but for years."

"When we take public lands and
put them off-limits, we're denying
ourselves a resource we need."

Energy industry groups said the decision to void the lease sales was a bad start for the Obama administration.

"When we take public lands and put them off-limits to national gas development, we're denying ourselves a resource we need," said Kathleen Sgamma of the Independent Petroleum Assn. of Mountain States.

On election day, the Bush administration announced that it was selling leases to hundreds of thousands of acres in Utah, saying it was the culmination of a seven-year process to change the way federal lands are administered in that state. Some of the parcels adjoined national parks, including Arches and Canyonlands. Contrary to normal procedure, the National Park Service was not consulted in the sale.

The administration removed some parcels from the list before its Dec. 19 auction, but environmentalists sued, arguing that most of the remaining leases were in lands that required greater review. Last month, a federal judge barred the government from cashing checks from the auction, saying the matter deserved a greater hearing in court.

Salazar let stand 39 leases in areas that were less environmentally sensitive but said the 77 he was reversing were too close to "American iconic treasures that we need to make sure are protected."

He said that the parcels would be reevaluated and that some could find their way back to auction.

During his conference call, Salazar declined to say whether he would reverse the resource management plans that enabled the Bureau of Land Management to sell the leases.

He also declined to state his position on an investigation by the U.S. attorney in Salt Lake City into an environmental activist who posed as a bidder and won the rights to 12 parcels.

Judge Dismisses Suit To Open Roads In Park Wilderness

Death Valley National Park
National Park News


On August 12th, a federal judge yesterday largely threw out a lawsuit filed by Inyo County, California, to open highways through remote roadless areas of Death Valley National Park.

Inyo County officials had hoped to take control of three routes — little-used paths and canyon bottoms — using a repealed, 19th-century right-of-way law known as R.S. 2477. The judge ruled that the county waited too long to assert its claims to the three roads within the national park because they were included in wilderness study areas by the federal Bureau of Land Management in 1979. The court agreed with arguments by conservation groups and the National Park Service that the county's claims were barred because it had failed to file suit within the 12-year statute of limitations. The court thus dismissed the county's claims to all of one route and most of the other two routes.

The ruling will protect desert tortoise, bighorn sheep, and remote archeological and cultural sites within Death Valley National Park, the largest national park in the lower 48 states.

Six conservation groups – the Sierra Club, the Wilderness Society, California Wilderness Coalition, National Parks Conservation Association, Center for Biological Diversity and Friends of the Inyo, all represented by Earthjustice, a non-profit environmental law firm – intervened to support the National Park Service and to ensure that these public lands in Death Valley are protected from off-road vehicle damage.

"This is a great day for Death Valley," said Ted Zukoski, an Earthjustice attorney representing the conservation groups. "When Congress made Death Valley a national park in 1994, it set aside these areas for all Americans to enjoy as quiet, natural, and free from damaging dirt bikes, ATVs, and other off-road vehicles. The court's ruling will help ensure that Congress's promise to the American people will be kept."

"This decision protects the unique biological resources in Death Valley National Park from off-road vehicle abuse," said Lisa Belenky, senior attorney with the Center for Biological Diversity. "The court rightly found that the county sat back and waited too long before raising these issues. The county was well aware that the federal government intended to protect the resources of these areas in 1979, when the wilderness study areas were designated."

"I'll bet the horned lizards and chuckwallas are dancing in the desert washes right now," said Paul McFarland, executive director of Friends of the Inyo, a Bishop-based public lands conservation organization. "Hopefully, this sound decision will let us move beyond bogus road claims to focus on working together to better sustain one of our most valuable assets here in eastern California — our wild desert."

U.S. District Judge Anthony W. Ishii said the county was on notice in 1979 that the federal government intended to restrict activities in these areas and would not allow the claimed routes to be paved or upgraded in a way that would impair wilderness values. The county sought rights-of-way in hopes of tearing down Park Service barriers and initially asked for the right to build two-lane highways in roadless desert canyons and valleys. Those actions would permanently disrupt the desert stillness and threaten imperiled desert tortoise, as well as one of the park's most important petroglyph sites.

Greenwater Canyon, on the east side of the National Park, is rugged, narrow, and deep, carving a twisting course through volcanic rock. Forty-two prehistoric sites containing more than 300 important petroglyphs are found in the Canyon, which also provides habitat for desert bighorn sheep and desert tortoise.

Before the canyon was included in the park in 1994, land managers recognized its importance by naming it an "Area of Critical Environmental Concern" to protect "prehistoric occupation sites still important to Native Americans." One of Inyo County's claimed "highways" would have cut through the canyon for about 10 miles.

The court's decision threw out the county's claim to all of the routes inside the canyon.

Greenwater Valley, to the south of Greenwater Canyon, is covered with lush, dense vegetation, including creosote, sagebrush, bunch grasses, seasonal wildflowers, and cactus. The area includes important habitat for the Black Mountain bighorn sheep herd and desert tortoise.

When Inyo County illegally bulldozed a three-mile route across an abandoned jeep track in 2004, the Park Service revegetated both ends of the route to restore the area's natural values.

The court's decision threw out Inyo County's claim to all of the route.

Last Chance Canyon, at the northern end of Death Valley, is a remote and scenic area that is home to cougar, deer, coyote, and badger. Inyo County claims a 10-mile "highway" runs up the canyon, which narrows into a boulder-choked, tree-strewn gulch. At the head of this gully, the county claims their "highway" ascends a nearly vertical 50- to 200-foot ridge of unstable rock. Cutting a two-lane highway across this rugged terrain would permanently and significantly scar the landscape. The court's decision threw out Inyo County's claim to all but the northern half-mile of the route.

All three of these areas were inventoried and found to be "roadless" in 1979, and were designated as wilderness when Death Valley National Park was created in 1994.

Inyo County is one of many governmental agencies and private organizations that are laying claim to federal lands under a repealed Civil War-era law known as R.S. 2477.

Death Valley roads kept shut

Judge throws out Inyo County's suit

Jason Pesick, Staff Writer
San Bernardino Sun


Environmentalists are celebrating a lawsuit's dismissal, which they say will result in the protection of swaths of Death Valley National Park.

On Friday, a federal judge dismissed much of a lawsuit filed by Inyo County against the Department of the Interior and the National Park Service.

"It is a good day for Death Valley National Park," said Ted Zukoski, a lawyer for Earthjustice. The nonprofit environmental law firm represented six environmental groups that intervened on the federal government's behalf.

The county wanted possession of roads in the park, but the environmentalists want the pristine areas free of motorized vehicles. Most of those roads were included in wilderness study areas created by the federal government in 1979. On Friday, a federal judge said the county waited too long to file the suit.

The county never planned to pave the roads, said Randy Keller, assistant counsel for Inyo County.

The county wanted to remove blocks the federal government set up to stop motorized vehicles. The federal government closed the roads without the authority to do so, Keller said.

"It's partly the principle of the thing," he added.

The Inyo County Board of Supervisors will decide what to do next, but the ruling put an end to the suit, Keller said.

"It pretty much terminates it, I think," he said.

Those intervening were the Sierra Club, Wilderness Society, California Wilderness Coalition, National Parks Conservation Association, Center for Biological Diversity and Friends of the Inyo.

According to those groups, Greenwater Canyon, Greenwater Valley and Last Chance Canyon will be preserved. Those areas are home to prehistoric sites, desert bighorn sheep, desert tortoises, cougars, deer, coyotes, badgers, various plants and scenic landscape.

Environmentalists, including Paul McFarland of the Bishop-based Friends of the Inyo, were pleased with the ruling.

"I'll bet the horned lizards and chuckwallas are dancing in the desert washes right now," he said in a news release.

San Bernardino County is trying to obtain rights of way to existing roads on federal land in Lucerne Valley and the Mojave National Preserve.

Judge dismisses case seeking roads in Death Valley

By NOAKI SCHWARTZ
The Associated Press

A federal judge in Fresno largely dismissed a lawsuit that sought to open up roads through miles of remote desert canyons and valleys in Death Valley National Park.

In the lawsuit dismissed Monday, Inyo County sought to re-establish access to four roads near the Nevada border that park officials seized when the national park was established in 1994. The county filed its lawsuit against the federal government in 2006.

Six environmental groups filed legal papers in 2007 to join the National Park Service in fighting the lawsuit. The coalition argued that reopening the old mining roads that had been washed away would harm the park's fragile ecosystem, including a number of federally protected animals.

"It's a significant ruling and a big one for our team and for the park," said Ted Zukoski, an Earthjustice attorney representing the environmental groups.

The conservation groups saw the disputed area as remote canyons that the Bureau of Land Management deemed to be "roadless" years earlier. The county, however, saw the same area as 20 miles of established roadways that could one day be widened.

Randy Keller, assistant county counsel, said the county was trying to re-establish local control over roads in an area where 98 percent of the land is owned by the state and federal government. Keller said the county is disappointed by the ruling and had not decided whether to appeal.

"It's really the prerogative of local government to maintain its roads," he said.

BLM urged to deny Kane County access to route

By Nancy Perkins
Deseret Morning News

A national coalition of environmentalists charged the Bureau of Land Management on Tuesday with conspiring to "surrender control" of a road that crosses federal land in Kane County.

The coalition, comprised of The Wilderness Society, Southern Utah Wilderness Alliance, Wild Utah Project and Center for Biological Diversity, object to the BLM's preliminary non-binding determination that Bald Knoll Road is a valid R.S. 2477 public right-of-way.

"Kane County's application (to designate Bald Knoll Road as an R.S. 2477 route) contains illegible aerial photos, an undated map, and contradictory stories from a few residents," said Ted Zukoski of Earthjustice, another environmental group voicing opposition to the BLM's proposal. "Kane County admits that it has no official records concerning highway construction or maintenance during the years necessary to prove its claim. For this reason alone, the BLM must reject the county's application."

Kane County Commissioner Mark Habbeshaw said the county has "followed to the letter" what was required of it by the federal government's designation procedure.

"All that is required for a non-binding designation on Bald Knoll Road is for the county to submit a preponderance of evidence," he said. "We think we have far exceeded that burden."

Rep. Mike Noel, R-Kanab, said the coalition is spreading "bald-faced lies."

"There's no question that road has always been maintained by the county. There is a good, solid record of that," Noel said. "There is no question in my mind, or anyone who understands what R.S. 2477 is all about, that the BLM did an excellent job evaluating the data and coming to the conclusions that they did. This road belongs to the citizens of this county and sovereign state of Utah."

An attorney for the Southern Utah Wilderness Alliance said the BLM's decision in Kane County on Bald Knoll Road could set a national precedent.

"If the Interior Department approves Kane County's flawed application, it will set a national precedent that will open the door to thousands of claims through wildlife habitat, rivers, and near archeological treasures. This is just the proverbial camel's nose poking under the tent."

Mike DeKeyrel, realty specialist with the BLM's Salt Lake City office, said while he hasn't had an opportunity to review in detail the coalition's voluminous comments, he does not agree with the group's premise.

"The BLM does not consider it (the Bald Knoll Road decision) as precedent-setting and a portend that would lead to thousands of such determinations," DeKeyrel said. "The BLM intends to review each right-of-way claim separately through the administrative process. It is important to note that the BLM's review is an internal, administrative one for its own management purposes."

Bald Knoll Road is a dirt road about nine miles in length. It crosses public lands administered by the BLM in western Kane County, approximately 20 miles north-northeast of Kanab. A review period for public comment expired Tuesday, the same day that the coalition filed a lengthy objection to the proposal and asked the BLM to deny the designation.

Roadways designed as R.S. 2477 routes remain open as a right of way to various forms of public access. Roads that fail to meet the specifications for the designation, which includes proof that the road was used and maintained by a county prior to 1976, are closed to public use.

"The Bald Knoll Road is not located in any identified sensitive area, wilderness area, or potential wilderness area, and in fact was of apparently little concern to interest groups until it became the first non-binding determination," DeKeyrel said.

A separate national campaign that urges the Department of the Interior to protect Utah's archaeological artifacts and roadless areas from off-road vehicles is also gathering steam.

In a bipartisan letter signed by 93 members of the U.S. House and sent to Interior Secretary Dirk Kempthorne on Tuesday, the BLM is chastised for proposing off-road, public access to millions of Utah's back roads.

"The BLM currently recognizes 3.3 million acres of Utah BLM roadless areas as possessing important wilderness characteristics," the letter states. "These ORV plans will be devastating to some of the most magnificent public lands and prehistoric cultural resources in the country."

The congressional members urge Kempthorne to intervene and restrict off-road vehicle use on any Wilderness Character Areas in Utah.

Frightening Eco-Freak Quotes

from the Sussman Files
KSFO 560 Talk Radio
[San Francisco, CA]


Brian Sussman is a conservative commentator on the San Francisco radio station KSFO. He hosts his own show, “Right Thinking from the Left Coast,” weekdays from 6pm to 8pm.

"We already have too much economic growth in the United States. Economic growth in rich countries like ours is the disease, not the cure."
Paul Elrich, Stanford University biologist and Advisor to Albert Gore

"I think if we don't overthrow capitalism, we don't have a chance of saving the world ecologically. I think it is possible to have an ecological society under socialism. I don't think it's possible under capitalism."
Judi Barri of Earth First!

"Capitalism is a cancer in the biosphere."
Dave Foreman, Founder, Earth First!

"The northern spotted owl is the wildlife species of choice to act as a surrogate for old-growth forest protection," explained Andy Stahl, staff forester for the Sierra Club Legal Defense Fund, at a 1988 law clinic for other environmentalists. "Thank goodness the spotted owl evolved in the Pacific Northwest," he joked, "for if it hadn't, we'd have to genetically engineer it."
Andy Stahl at a 1988 law clinic for environmentalists, staff forester, Sierra Club Legal Defense Fund

"Now, in a widening sphere of decisions, the costs of error are so exorbitant that we need to act on theory alone, which is to say on prediction alone. It follows that the reputation of scientific prediction needs to be enhanced. But that can happen, paradoxically, only if scientists disavow the certainty and precision that they normally insist on. Above all, we need to learn to act decisively to forestall predicted perils, even while knowing that they may never materialize. We must take action, in a manner of speaking, to preserve our ignorance. There are perils that we can be certain of avoiding only at the cost of never knowing with certainty that they were real."
Jonathan Shell, author of Our Fragile Earth

"A global climate treaty must be implemented even if there is no scientific evidence to back the greenhouse effect."
Richard Benedict, an employee for the State Department working on assignment for the Conservation Foundation

"[W]e have to offer up scary scenarios, make simplified, dramatic statements, and make little mention of any doubts we may have. Each of us has to decide what the right balance is between being effective and being honest."
Stephen Schneider, Stanford University Professor and author Quoted by Dixey Lee Ray in Trashing the Planet (1990)

"I honor Earth First for having the guts to do the things they do. It's not for me, but I understand why they do what they do. And, ultimately, we all help each other."
Brock Adams, VP, Audubon Society, quoted in the Los Angeles Times.

"If we seek only personal redemption we could become solitary ecological saints among the masses of those we might classify as 'sinners' who continue to pollute."
Bill Devall & George Sessions, Deep Ecology: Living As If Nature Mattered Layton

"More science and more technology are not going to get us out of the present ecological crises until we find a new religion, or rethink our old one."
Lynn White, Jr. "The Historical Roots of Our Ecological Crisis," Science, (Mar. 10 1967), p 1206

"Childbearing [should be] a punishable crime against society, unless the parents hold a government license.... All potential parents [should be] required to use contraceptive chemicals, the government issuing antidotes to citizens chosen for childbearing."
David Brower, Friends of the Earth

"The right to have children should be a marketable commodity, bought and traded by individuals but absolutely limited by the state."
Keith Boulding, originator of the "Spaceship Earth" concept

"If radical environmentalists were to invent a disease to bring human populations back to sanity, it would probably be something like AIDS. It [AIDS] has the potential to end industrialism, which is the main force behind the environmental crises."
Earth First! newsletter

Judge Tosses Out Surprise Canyon Lawsuit

National Parks Traveler
by Kurt Repanshek

A federal judge has tossed out a lawsuit aimed at turning a unique canyon on the western edge of Death Valley National Park into a road for four-wheelers. Judge Lawrence O'Neill ruled that the parties that brought the lawsuit had no standing on the issue.

When most think of Death Valley, they envision starkness, sand dunes, and saltpan. But Surprise Canyon is definitely different, with a tumbling stream, lush vegetation, and wildlife lured by the water.

Now, according to documents in this case, in the 1870s there actually was a road that ran up the canyon to reach the silver mines of Panamint City. Supposedly the six-mile route was in such good condition at the time that stagecoaches could travel it. Well, the silver boom went bust in 1877, Panamint City turned into a ghost town of sorts, and the Surprise Canyon route wasn't maintained. Indeed, it was washed out at times by flash floods.

Now, there were improvements made in 1918, 1924, and 1947-48, according to the court. However, flash floods continued to erase them.

Back in the 1980s, some off-roaders discovered the canyon and figured it was a perfect playground, even if it did require the use of winches and impromptu rock ramps to help negotiate the waterfalls. But in 2001, as the result of litigation, the U.S. Bureau of Land Management closed the lower section of the canyon to ORV traffic, and in 2002 the National Park Service closed the upper stretch.

Last year some off-road groups went to court to open the canyon, saying it really was a "highway" that they have a right to under a Civil War-era statute known today simply as R.S. 2477. Under that statute, initially created to further western expansion, some states, counties and off-road groups have claimed that washes, two-tracks, even hiking trails are "highways" that they are entitled to travel.

Well, yesterday U.S. District Judge O'Neill tossed their lawsuit, ruling that they had no standing to bring the lawsuit since they had no title to claim to the route. Not surprisingly, the groups who sided with the government in the case applauded the judge's decision.

“It’s a great day for Surprise Canyon and Death Valley National Park,” says Ted Zukoski, an attorney for Earthjustice, representing six conservation groups involved in the case. “This place is a miracle — a gushing stream running through the desert. We’re pleased the court denied an attempt to turn this marble canyon’s waterfalls into a highway.”

"Today the court took an important step toward protecting Surprise Canyon and the web of life it supports,” said Chris Kassar, wildlife biologist with the Center for Biological Diversity. “The special character of this desert oasis strikes you as soon as you step in — cool water fills your shoes, flycatchers flit from branch to branch, and thick stands of willows and cottonwoods sway in the breeze against a backdrop of steep, multicolored cliff walls."

“We are thrilled,” said Deborah DeMeo, program manager for the National Parks Conservation Association. “The dismissal of this suit means that Surprise Canyon Creek in Death Valley National Park, and the habitat and wildlife that it supports, will be preserved for future generations to enjoy."

Endangered Species Act changes in the works

Officials are considering changing enforcement of the 1973 law to protect animals, a leaked draft reveals.

By Janet Wilson and Julie Cart, Times Staff Writers
Los Angeles Times

Bush administration officials said Tuesday that they were reviewing proposed changes to the way the 34-year-old Endangered Species Act is enforced, a move that critics say would weaken the law in ways that a Republican majority in Congress was unable to do.

A draft of suggested changes, which was leaked Tuesday, would reduce protection for wildlife habitat and transfer some authority over vulnerable species to states.

Acting under orders from Interior Secretary Dirk Kempthorne, who has long fought for changes in the law, U.S. Fish and Wildlife Service Director H. Dale Hall said he had asked his senior field staff to evaluate proposals in the draft by policy advisors in the Departments of Interior and Commerce, which oversee almost 1,300 imperiled species.

"What we're attempting to do is to update our implementation of the existing law," said Hall, who said any changes would not need to be approved by Congress and would be signed by Kempthorne or a representative.

"The act is written or not written by Congress, but we have the responsibility to implement the law through regulations and policies. We're trying to bring consistency and clarity. That has been a significant problem from one area of the country to another," Hall said.

Hall made his comments after environmental groups and the online journal Salon.com published a draft version of the proposals Tuesday. He said that the version was "a beginning point" circulated internally to eight senior Fish and Wildlife staff in early February, and that it had changed a great deal since. He refused to make public the current version, saying he wanted his staff to be free from "outside interference" while they evaluated possible changes.

He and a Wildlife Service spokesman said that if any of the ideas were formally proposed, they would be posted online and there would be an opportunity for public comment.

"It's sort of a work in progress," spokesman Chris Tollefson said. "Nothing is proposed at this point; we're still working through this."

Contending that the act penalized property owners and made the cost of public works projects prohibitive, House Republicans in particular have been trying to make changes since 1995.

Last year, the House and Senate failed to agree on changes that proponents said could have helped speed approvals for dams, housing developments, highways and other projects where protected species live. Changes in the act could have a significant effect in California, which has the second-highest number of endangered species in the nation after Hawaii.

Congressional staffers said Tuesday that they were studying the draft and could not immediately comment. Senate environment and public works chairwoman Barbara Boxer (D-Calif.) issued a brief statement, saying: "I will vigorously oppose any weakening of the Endangered Species Act, which has saved the American bald eagle, and which is now playing a role in saving the polar bear."

Environmental groups said the draft changes would cripple the law.

"Taken together, this proposal would fundamentally gut the purpose and the intent of the Endangered Species Act. Fewer species would be protected, the standards intended to help them survive and recover would be fundamentally weakened, and very likely more species will go extinct," said Jan Hasselman, an attorney with Earthjustice.

Since Bush became president, 57 species have been declared endangered, usually as a result of lawsuits — fewer than any president since the law was signed by President Nixon in 1973.

Damien Schiff, an attorney with the Pacific Legal Foundation representing landowners and developers battling endangered species restrictions, said of the draft: "It's certainly not a gutting of the Endangered Species Act. It is at most an incremental change that might provide moderate or small benefits to the regulated community."

He said that under the version made public, plans for dams to provide electricity and irrigation for farming could proceed with less hindrance even if endangered or threatened species were present. He said that in an extreme case, it was possible a species could become extinct, but only if it was determined that a greater public value such as providing water or power was being served.

The draft contains language from Kempthorne's proposed 1998 legislation and from a controversial bill by former Rep. Richard W. Pombo (R-Tracy), both of which died in Congress. Kempthorne could not be reached for comment Tuesday.

Fish and Wildlife Service spokesman Tollefson said of the proposals: "The initial work was done before Mr. Kempthorne took office, but really the impetus happened when he came. He has … had a special interest in the Endangered Species Act for a long time, and he asked [Fish and Wildlife chief] Dale [Hall] to figure out a way to take a look at the act and figure out what we could do."

Environmentalists seek to join case over Death Valley roads

Associated Press in San Francisco
By GARANCE BURKE, Associated Press Writer

Fresno, Calif. (AP) -- Six environmental groups filed legal papers Thursday to join Death Valley National Park in fighting a federal court lawsuit that, if successful, could open miles of desert canyons and valleys to motorized vehicles.

Last October, Inyo County sued the federal government seeking to re-establish its access to four dirt roads near the Nevada border that park officials seized when the national park was established in 1994.

The environmentalists say the old mining roads were washed away years ago, and allowing vehicles into those areas now could endanger sensitive animal and plant species found in remote stretches of the desert.

"All of these are places where you can really enjoy the fantastic scenery and the stillness of the largest national park in the lower forty-eight (states)," said Ted Zukoski, an Earthjustice attorney representing the groups.

If Judge Anthony Ishii grants the motion to intervene, the Sierra Club, Friends of the Inyo, California Wilderness Coalition, Center for Biological Diversity, The Wilderness Society and the National Parks Conservation Association would become parties to the suit.

If the county prevails, the groups believe the park's fragile ecosystem could suffer, to the detriment of the federally protected desert tortoise, desert bighorn sheep, mountain lions and other rare wildlife that roam there.

"Even the designation of a national park is not enough to keep people who want to use motorized vehicles out of these areas to protect the resources," said Lisa Belenky, a staff attorney with the Center for Biological Diversity.

The environmentalists see the disputed area as desert canyons and valleys, which the Bureau of Land Management found to be "roadless" years ago.

But the county views the same area as approximately 20 miles of established roadways that can be widened to two lanes to accommodate increased traffic as needed, according to a suit filed on Oct. 24.

Inyo County's lawsuit cited a Civil War-era mining law that allowed local governments to build highways over some public lands. According to the 1866 mining law, the county has the right to preserve the public right-of-way on the old roads, Assistant County Counsel Randy Keller said.

"These roads have been there for 100 years," Keller said. "The way we look at it, they were taken."
The environmental groups seek to intervene to defend just three of those roads.

The same mining law is being invoked in another case in nearby Surprise Canyon, an area just outside Death Valley's boundaries. There, off-road drivers and environmentalists are squaring off over whether the canyon and its spring-fed waterfalls should be closed to vehicles.

Off-roaders have no role in the legal action brought by Inyo County, but drivers stand to benefit from the suit, Keller said.

"It's a public road, and the county's desire is to see that the public's right to traverse these roads continues," he said. "That's part of the idea. They're recreation routes that people use to drive through the desert."

The parties have asked for a hearing on March 12, said Zukoski. The court could rule anytime after that.

Road wars: County sues feds over desert preserve

Andrew Silva, Staff Writer
San Bernardino Sun [San Bernardino, CA]

The Mojave Desert has been the battleground in a long-running range war between conservationists and those who argue the public has been shut out of their own public lands.

The signature epic battle ended Oct. 31, 1994, when Congress narrowly passed the California Desert Protection Act.

The controversial law upgraded Death Valley and Joshua Tree national monuments to national parks and created a new national park unit, the Mojave National Preserve, covering 1.6 million acres, or most of the land between interstates 15 and 40 east of Barstow to the state line.

San Bernardino County has launched a new skirmish in the old fight, using an 1866 law to claim it owns most of the roads within Mojave National Preserve.

The county in October sued the U.S. Department of the Interior, seeking title to 14 roads within the preserve.

"It's to have a piece of paper (to prove) that the county has a right to use these roads," said Brad Mitzelfelt, who was just appointed the county supervisor representing the 1st District, which covers most of the county's sprawling desert.

"The county would like to have a guarantee that the network of roads across the preserve, that none could be arbitrarily closed or excessively restricted," he said.

In its response filed Tuesday, the federal government denies the county's claims and asks the court to dismiss the suit.

The suit relies on Revised Statute 2477, a component of the Mining Law of 1866 that permitted construction of roads across public lands to help spur settlement of the West.

It was repealed in 1976, but existing rights-of-way were grandfathered in.

It's also the law being used by a group of off-roaders who bought land in Panamint City, an abandoned mining town in Death Valley National Park.

That group is seeking to reopen Surprise Canyon to off-road vehicles to gain access to the ghost town.

Critics say the county suing the federal government to gain control of the roads is unnecessary and expensive.

But they also see a more sinister intent - that San Bernardino County is using the process to pry open lands that have been closed to traditional uses such as mining, grazing and off-roading.

"Utah and some counties have viewed R.S. 2477 not as a shield to protect public access, but as a sword to defeat protection of land and water," said Ted Zukoski, an attorney with Earthjustice.

The county a few years ago identified thousands of miles of trails and roads that could fall under R.S. 2477, said Jason Fried of the California Wilderness Coalition.

"What happens if they get these and decide they want to do another 14 roads?" he asked.

While environmentalists have fretted that counties have listed narrow foot trails and even stream beds as "roads," San Bernardino County is laying claim to well-established routes.

Among them are Halloran Springs Road, Cima Road, Kelbaker Road and Goffs Road.

The lawsuit alleges the county has had trouble maintaining the roads because of interference from the National Park Service.

In its response to the suit, the Department of Interior agrees that the Park Service has placed some restrictions on where the county can excavate fill material. The government also admits the Park Service has complained that county maintenance has been inadequate.

There is an effort under way to draft a formal agreement between the county and the Park Service on road maintenance in the preserve, although day-to-day operations have not been a major problem, officials said.

"Our operations staff has a good working relationship with the park staff," said Annesley Ignatius, assistant director for operations in the county's public works department.

Preserve Superintendent Dennis Schramm said there have been disagreements with the county over excavating fill material but was optimistic an agreement will be worked out.

"The county maintains the roads, and we'd like them to continue," he said.

Both sides agree that cooperation is better than litigation.

"There has never been an easy debate over a road," said Kristen Brengel of The Wilderness Society in Washington, D.C. "Is it that critical to gain control over the roads? These roads aren't going anywhere. Why is the county spending this money when there's no chance the National Park Service will shut them down?"

County attorneys working on the case said the suit hasn't been that expensive, and the county is obligated to protect its rights.

"The preferred way is sitting down with the other agency and working it out. That hasn't happened," Deputy County Counsel Charles Scolastico said.

Mitzelfelt said concerns that the county will try to plow through wilderness areas are mistaken.

"Really it's more an effort to preserve what we have, and to preserve the beneficial uses of land for which access by vehicle is essential," he said.

Copy of the lawsuit

Response to the lawsuit

U.S. Loosens Its Policy on Building Roads in Parkland

The action by the Interior Department, though not legally binding, makes it easier for counties to claim rights of way.

By Bettina Boxall and Julie Cart, Staff Writers
Los Angeles Times

Guidelines issued by Interior Secretary Gale A. Norton on Wednesday will make it easier for counties to lay claim to old trails and closed roads they would like to open across federal lands in the West, including national parks in Southern California.

In one of her final actions before leaving her post next week, Norton issued a policy dealing with right-of-way claims under a Civil War-era law that county officials in several Western states have tried to use to circumvent federal land-use restrictions on motorized access.

Norton's memo gives Interior officials nationwide latitude to grant rights of way to counties and other claimants and even approve road construction and improvements.

For a definitive legal ruling, claimants would still have to go to court. Though the policy does not bar claims in national parks and wilderness areas, Interior officials insisted that land managers would not allow destructive road building or improvements.

"Even if you have a right of way, that doesn't mean you can take a two-track and turn it into a two-lane road," said Dan Domenico, special assistant to Interior's solicitor.

"We still have the duty and obligation to protect federal lands surrounding and underlying the right of way."

But environmentalists said the secretary's guidelines amounted to an invitation to counties and other entities to claim everything from hiking trails to dry stream beds and start using them as roads.

"The barriers to [these] claims have been lowered to practically nothing," said Ted Zukoski, a Denver-based attorney with Earthjustice who was involved in a major court case on the matter. "The bar is so low that it has the effect of telling everyone: 'We're open for business. Make a claim.' "

The controversy is rooted in an 1866 law intended to give miners access to their stakes and cattlemen a way to move their herds by granting them rights of way over federal land. Congress repealed the law in 1976 but allowed claims for routes already in existence.

Claims in national parks and wilderness areas would have to be based on uses in existence before those areas were protected.

In 1997, then-Interior Secretary Bruce Babbitt put all but the most pressing claims on hold. But that didn't quiet the controversy.

In Utah, three southern counties asserted their right to control roads and trails within national parks, monuments and other federal land. San Juan County claimed a 10-mile stretch of stream bed in Canyonlands National Park, contending that a rocky trail in Salt Creek Canyon — once open to four-wheel-drive traffic — was a "highway" the National Park Service had no right to close.

The route provides the only vehicular access to Angel Arch, one of the park's most famous geologic formations.

Another claim was made by officials in Kane County for rights of way in the Grand Staircase-Escalante National Monument, managed by the federal Bureau of Land Management.

Ruling in a lawsuit that stemmed from the Utah actions, the U.S. 10th Circuit Court of Appeals last year said the BLM could recognize local rights-of-way claims but did not have the authority to make final legal determinations.

Citing that ruling, Norton said Wednesday that agencies under her purview — which include the BLM and U.S. Park Service — could recognize rights of way as long as they adhered to state laws.

In San Bernardino County, which has inventoried 5,000 miles of roads and tracks said to be in use on federal lands before 1976, officials said they hoped the new policy would settle at least some of the controversy.

"The county is asserting rights of way … to protect the access for county residents and agencies to be able to get where they need to go in the desert," said Brad Mitzelfelt, chief of staff for Board of Supervisors Chairman Bill Postmus, whose district includes large federal holdings in the Mojave Desert.

Mitzelfelt said the county would press claims only on the most heavily used routes, not all 5,000 miles. The old roads and trails cross BLM land as well as the Mojave National Preserve, where he said locals have lost access since its creation in the 1990s.

Larry Whalon, the preserve's chief of resources, said expanding the road system and upgrading certain roads would expose remote cultural and historical sites to increased human traffic and potential vandalism. He cited Ft. Paiute, a crumbled adobe Army post, as among the places that would be vulnerable.

"If that road were to be improved, you'd have a lot more easy access, and that could be a problem," Whalon said. "Even though it's been vandalized, it's not been completely ruined."

Utah officials hailed Norton's policy as a way to settle the claims in a more consistent manner.

"We think this memorandum is absolutely appropriate. We think the guidelines make life easy for everybody," said Lynn Stevens, chair of the San Juan County Commission and Utah's public lands policy director. "It creates consistency. That's not to say we don't have issues with aspects of it. But insofar as it embraces the 10th Circuit's decision, we are not opposed to it."

But Mark Squillace, director of the Natural Resources Law Center at the University of Colorado at Boulder, said the policy created a situation of "legal limbo" because federal agencies would be making right-of-way decisions that weren't binding.

"No one really knows if they will be meaningful," he said.