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.

Courtroom defeat won't stop Utah in roads fight

By Amy Joi O'Donoghue
KSL.com

SALT LAKE CITY — The state of Utah and San Juan County may have lost a key fight over access to a road in Canyonlands National Park, but the roads war being waged against the U.S. government is far from over.

On Friday, the 10th Circuit Court of Appeals ruled that Utah and San Juan County failed to prove that Salt Creek Canyon Road was a "public thoroughfare," meaning the road remains off-limits to their rights-of-way claims under a Civil War-era statute.

“It would be mistake to consider this decision limiting us from going forward in our other road cases,” said Harry Souvall, public lands section chief for the Utah Attorney General's Office. He added that the decision provides clarity on such issues as statutes of limitations, but does not shut down the state and counties' case in claims to 12,000 other roads.

In their ruling, justices rejected the state's argument that uninterrupted periodic use over a 10-year period was sufficient to establish a claim to the dirt road — and therefore access by motorized vehicles.

"The state and county failed to carry their burden of establishing 10 years of continuous public use of the Salt Creek Road as a public thoroughfare prior to (establishment) of the Canyonlands National Park in 1964," the opinion read.

It would be mistake to consider this decision limiting us from going forward in our other road cases.
–Harry Souvall, Utah AG's office

The Southern Utah Wilderness Alliance hailed the ruling as key to protecting valuable natural resources within Canyonlands.

"For Salt Creek Canyon, it is a great decision," said Steve Bloch, attorney with the organization. "It means the only perennial stream in the park outside the Green and Colorado rivers will remain protected from signficant adverse impacts of motorized travel."

The issue

At issue is the question of motorized use of an unimproved 12.3-mile road that is intertwined with a creek bed in Salt Creek Canyon. The state argued that periodic historic use by cattle ranchers, uranium miners and tourists was enough to elevate the route to claims under the so-called RS2477 statute.

Before the 1995 implementation of a backcountry management plan for the park, access to the road was unrestricted and then modified to a permit-system only.

At that time, the Southern Utah Wilderness Alliance challenged the park service's decision to keep the road open, arguing that continued motorized use of the trail ruined the perennial stream and posed risks of damaging prized archaeological resources in the area.

By 2004, the park service decided to lock the gate on the road, prompting the lawsuit by San Juan County and the state, which claimed its historic use over the years constituted status as a roadway or public thoroughfare.

The state pointed to grazing uses in the late 1880s or early 1890s that gradually increased through the 1950s, uranium mining and exploration in the 1950s, and uses of the canyon by Boy Scouts and tourists beginning as early as the 1950s.

Supporters of preserving access, including the Utah Shared Access Alliance and the Blue Ribbon Coalition, also argued that the road is the primary route for tourists to reach several scenic sites within the park, including Angel Arch.

While the state argued that no "particular frequency" was required under the claim as long as there was no formal interruption of access by the federal government, the court disagreed in its Friday decision, upholding the ruling of the U.S. District Court for Utah.

"While we agree uninterrupted use is necessary, it is not alone sufficient to demonstrate the existence of a public thoroughfare for purposes of RS2477," the court said. "The intensity of public use remains a component in determining the existence of a public thoroughfare."

Important for upcoming cases

Bloch said the Salt Creek ruling helps to flesh out important case law for other road claim cases to come.

"This ruling is another piece of the puzzle in figuring out what types of claims are not sufficient," he said. "We are going to continue to scrutinize it closely and rely on it to defeat similar claims that stream bottoms and cow paths and other dirt trails are highways."

Bloch predicted that the ruling may come into play with another case in Kane County that is also on appeal before the 10th Circuit and scheduled to be heard in September.

There are only 14,000-plus more claims to go. The state has a long, hard road to hoe if they are going to continue this push.
–Steve Bloch, SUWA attorney

"There are only 14,000-plus more claims to go," he said. "The state has a long, hard road to hoe if they are going to continue this push."

Souvall, however, stands by the distinction that the state should only have to prove "available" use over a 10-year period, and frequency need not come into play in a legal claim for the right of way. However, he added, the state is developing evidence of "frequency of use" in other road cases to meet the standard.

That nuance in the argument may prompt a request for an en banc hearing by the full panel of judges to weigh the merits of the state's claims to Salt Creek Road.

Utah is in its second year of an all-out battle over access to roads or routes in 22 of its 29 counties. In 2012, the claims were consolidated into one lawsuit against the U.S. Department of Interior over RS2477 roads, which were part of a transportation network established via an 1866 law to foster movement in the West.

While the statute has since been repealed with the adoption of the Federal Land Management Policy Act, the state's and counties' rights of way to roads that already existed were grandfathered in.

Utah vs. feds: Preparing with road trips, cameras, interviews with old-timers

This road in Dry Canyon in Box Elder County is one of the 12,400 roads the state is seeking title to in its fight with the federal government over preserving access. (Public Lands Policy Coordination Office)

By Amy Joi O'Donoghue
Deseret News

SALT LAKE CITY — A legal team from Utah is traveling to remote areas throughout the state, recording testimony from aging witnesses and filming panoramic views of roads that snake through canyons or cross sagebrush-peppered lands.

The information is being compiled for the state's legal fight against the federal government in which it filed 22 lawsuits in 2012 that have since been consolidated into one case.

In a briefing recently given to a committee of lawmakers, Kathleen Clarke said there is some urgency in getting depositions from witnesses because they are aging.

"Some of these folks are our best witnesses," said Clarke, who is director of the Governor's Public Lands Policy Coordination Office. "Not knowing how long it will take or if any of these cases will ever be heard in court, we have an awfully long line of witnesses to get through."

Clarke said that as part of the requirement that the state prove that the roads existed and had 10 years of use prior to 1976, the legal team is also filming the roads.

"We are filming so the judge won't have to get into a Jeep and drive down these roads."

The roads in question are what's called RS2477 roads — named after a statute enacted in 1866 to promote settlement of the western United States by granting rights-of-way to states and counties for transportation.

The statute was repealed by the Federal Land Policy and Management Act, but that action was subject to "valid existing rights," giving rise to an interpretation by Utah and other Western states that the federal government can't forbid access.

Negotiations with the Department of Interior over title to the roads have lingered for years, finally propelling contentious legal battles in which Utah has alternately been victorious and suffered defeat.

One such loss was access to Salt Creek Road in Canyonlands National Park, which the state and San Juan County contend was illegally closed by the National Park Service.

Harry Souvall, public lands section chief for the Utah Attorney General's Office, said the case has been heard on appeal by the 10th Circuit Court of Appeals, with a decision to be released later this year.

The Salt Creek Road, he told lawmakers, is a good example of why many of the disputed roads are critical for economies of rural counties in Utah.

"Park service attendance and tourism in San Juan County were dropping and it's because people can no longer drive to see Angel Arch. It is now a nine-mile hike to get in there to see it. A lot of people can't do a nine-mile hike in sand to see anything, let alone this gem," he said.

The National Park Service has maintained the road was closed to motorized traffic because it was a streambed that was suffering from environmental degradation.

Souvall said the state has another RS2477 case stemming from a Kane County road dispute that is likely to be heard before the 10th Circuit as well. Together, the two cases have the potential to bring clarity and certainty to the issue.

"There's still that question on what we can or cannot obtain," he said.

The state's efforts have been resoundingly criticized by multiple environmental groups that argue its quest for title to the roads is a costly, irresponsible battle that will only lay waste to pristine landscapes.

"I am sort of shocked when I hear it is 12,500 roads and the largest litigation effort in the state," said Heather Bennett, with For Kids and Lands, an education coalition. "It comes back to the question of what is the best use of resources in this state."

The Southern Utah Wilderness Alliance in particular asserts the state wants "roads to nowhere" that are often narrow deer trails or traverse slick rock vistas.

But Souvall said nearly all the 12,400 roads that are part of the consolidated lawsuit have been vetted through a process that includes historical aerial imagery.

"A road that is closed is going to look like a deer trail," he said.

To support its documentation that the roads were used for a decade or more, Souvall said a legal team has been taking testimony from aging witnesses to preserve the historical record.

"In another case, we had taken a bunch of witness statements from 2000 to 2002. In 2009, when we were going through those statements, we found that approximately 40 percent of our witnesses were either dead or incapable of testifying. We lost almost half our witnesses."

The state struck an agreement with the Department of Justice to take 225 "preservation" depositions from witnesses who are 70 years or older who have health conditions and from witnesses age 80 and older.

"They may not be here to testify in live court," he said, adding that two of the witnesses are more than 100 years old.

To prepare the witnesses, Souvall's legal team takes them out on the road in question to see how much they remember. A Google Earth-style camera also captures a 360-degree view of the road as part of the state's documentation.

"Some of them know over 200 roads and some of them are over age 80," he said. "It is impossible to expect them to remember the details if we don't do this."

The process of gathering the preservation depositions is expected to take the full two years that make up the agreement, he added.

"It is a large effort," he said. "The process is designed to be as efficient as possible while still preserving the testimony of witnesses due to poor health or age."

One lawmaker questioned Souvall about that effort and why the state is pursuing claims to the roads in the wake of such criticism.

He mentioned a road in Uintah County that offered a breathtaking view of surrounding scenery.

"It's a stunning vista. You see people camped there. I don't know how you put a price on Scouting trips, family reunions and everyone being able to go there, from grandpa to infants," he said. "Once it is our right, our road, it is much more difficult to close that road. The fact that it is ours does not mean it will be abused."

County Files Action to Preserve Public's Access to Camp Rock Road

By David Zook
Submitted by Dan Wilson
Best Syndication News

SAN BERNARDINO CA - Nearly six years after San Bernardino County first sought to establish its authority over a critical High Desert road that crosses federal land, the Board of Supervisors Tuesday authorized a court order seeking to compel the federal government to process the County's application.

"We made a good faith effort under existing laws and regulations to establish that Camp Rock Road is a vital route across federal land and that it should be permanently under County control," said First District Supervisor Brad Mitzelfelt, who represents the High Desert. "We regret having to take this action to force the government to comply with its own rules and honor our rights under the Administrative Procedures Act."

On April 29, 2003, the County filed an application with the U.S. Bureau of Land Management for a recordable disclaimer granting the County's right of way on Camp Rock Road, which stretches about 42 miles between Lucerne Valley and Daggett. A recordable disclaimer is similar to a quitclaim deed, which would give the County a legal record of its ownership of the road.

The recordable disclaimer process was established to allow rights of way to be formally recognized and recorded. There was previously no regulatory provision for recording rights of way under federal rules.

The application was filed under Revised Statute 2477, part of an 1866 mining law that allowed rights of way over public lands as part of the effort to settle the West. R.S. 2477 was repealed in 1976 with the adoption of the Federal Land Policy and Management Act, but existing rights of way were preserved. The County submitted substantial evidence that Camp Rock Road was a well-established and maintained route long before 1976.

"We are merely seeking to protect the interests of our economy and our citizens who rely on this route to travel across federal land," Supervisor Mitzelfelt said. "There is no reason for this application to have languished for nearly six years, and we look forward to working with the federal government to resolve this issue."

The County's request for a writ of mandamus will be heard in U.S. District Court, Central District, in Riverside.

Judge refuses to halt huge Nevada gold mine

Written by SCOTT SONNER
Native American Times






Cortez Hills plant, pit and exploration in northeast Nevada.


RENO, Nev. (AP) – A federal judge ruled Monday a massive gold mine project could proceed in northeast Nevada despite a bid by a Western tribe and conservationists to block it on religious and environmental grounds.

U.S. District Judge Larry Hicks ruled there’s not enough evidence to force Barrick Gold Corp. to postpone digging a 2,000-foot deep open pit at the Cortez Hills mine on Mount Tenabo 250 miles east of Reno until a trial is held on the merits of the project.

The Great Basin Resource Watch and the Western Shoshone claimed the U.S. Bureau of Land Management’s review of the Toronto-based company’s proposed mine ignores some of the environmental effects and disregards tribal leaders’ concerns it will destroy a sacred landmark.

Hicks, who took more than a half hour to explain his ruling from the bench, said a preliminary injunction like the one the plaintiffs wanted is an “extraordinary remedy” taken only when there is a likelihood they will prevail at trial.

He said that while he might change his mind, so far mine opponents had failed to prove construction of the mine would violate the tribe’s religious freedoms or that the BLM violated any federal environmental laws in approving the mine under the Mining Act of 1872.

“The effect of the proposed mining project is on the plaintiffs’ subjective, emotional experience. It is offensive to their sensibilities and in the mind of some will desecrate a sacred mountain,” Hicks said.

“Nevertheless, the diminishment of that spirituality – as serious as it may be – under the Supreme Court’s holdings it is not a substantial burden on religious freedom,” he said.

Hicks said he also disagreed with the opponents’ claims that the BLM violated the National Environmental Policy Act and Federal Land Management Policy Act by failing to adequately consider effects on groundwater and scenic values of the area.

He said an environmental study was very thorough.

“It is very clear it represents thousands and thousands of work hours by BLM,” Hicks said.

“The court is satisfied they met the laws that require the BLM to take a hard look at all of the issues that pertain to a project such as this one,” he said.

Louis Schack, manager of communications and community affairs for Barrick Gold of North America, said the company was glad Hicks agreed the project was “thoroughly reviewed and responsibly approved” by the BLM.

“This is the most studied and scrutiinized mining project in Nevada. It is also very important to the economic stability of rural Nevada,” Schack said.

Roger Flynn, a lawyer with the Western Mining Action Project representing the tribe and the Great Basin Resource Watch, said before the ruling was issued that the plaintiffs would consider appealing to the 9th Circuit Court of Appeals in San Francisco. He did not immediately return a telephone call or e-mail seeking comment after the ruling.

Lawyers for Barrick – the largest gold mining company in the world – said any delay in digging the mine would have caused an undue financial hardship on the company and its workers during tough economic times.

The company is prepared to spend $640,000 a day for the next 15 months, said Francis Wikstrom, a lawyer for Barrick. He said a lot of that money would remain in Nevada, a state that produces more gold than any other – trailing only South Africa, Australia and China internationally.

Thirty workers already have been laid off and 250 to 300 more would be out of work and unlikely to find other jobs if the project had been halted, he said.

“This is basically the only game in town in northern Nevada,” Wikstrom said. “People need to feed their families.”

Hicks said the case has “tremendous significance” to the tribe, the mining company and its workers.

“And it certainly has huge implications to the public at a time of severe economic difficulties throughout the nation, not just in Nevada,” he said.

Hicks said that while there was no question Mount Tenabo was a very important mountain to the Western Shoshone, mining has been prevalent on the mountain since the 1860s – even before Nevada was a state.

Land-auction meddler has a new plan

Drilling foe hopes to raise $45,000 to keep the parcels until Obama steps in.


By Patty Henetz
The Salt Lake Tribune


Tim DeCristopher after he was escorted out of the BLM offices in Salt Lake City following his fraudulent bids on several oil and gas leases during a BLM auction. Griffin/The Salt Lake Tribune

The University of Utah student who foiled a federal oil and gas lease auction the Friday before Christmas hopes he can buy time for Utah's scenic redrock desert - and himself - until the Bush administration is out the door.

Tim DeChristopher announced Wednesday afternoon that he would pay the U.S. Bureau of Land Management $45,000 to hold the 13 lease parcels he won in a Dec. 19 sale. His aim is to fend off drilling at least until President-elect Barack Obama takes office and new officials are in charge of the federal Interior Department and Bureau of Land Management.

"This would be the most effective way of ensuring we could protect the land, at least until the new administration came in," DeChristopher said.

The 27-year-old economics major faces possible federal felony charges after winning bids totaling about $1.8 million on 13 lease parcels that he admitted he had neither the intention nor the money to pay for.

But since committing what he called an act of civil disobedience, DeChristopher has heard from hundreds of individuals around the country willing to chip in to keep drill rigs off the land and DeChristopher out of prison.

So far, would-be benefactors have pledged $14,000, he said.

DeChristopher, his lawyers and other advisers reckoned that if there were a specific reason for the fundraising, rather than just an ill-defined defense fund, enough money would roll in to allow him to write a $45,000 check to the BLM within the next couple of weeks.

"If I follow through on purchasing the leases, it makes it simply a question of my intent in opposing what I thought was a fraudulent auction," DeChristopher said.

The amount is based on a percentage of the $1.8 million; the agency requires such payments of all bidders to hold their parcels. Three Web sites have been set up to take pledges.

BLM special agents questioned and released the Sugar House resident after he disrupted the auction of 149,000 acres of public land in scenic southern and eastern Utah. The 13 bids he won by raising his auction paddle were on 22,000 acres of land near Arches and Canyonlands national parks.

DeChristopher admitted he ran up other bids by about $500,000 and said he would be willing to go to jail to defend his generation's prospects in light of global climate disruption and other environmental threats.

Melodie Rydalch, spokeswoman for the U.S. Attorney's office in Salt Lake City, said Wednesday the investigation into DeChristopher's actions are continuing. Prosecutors would have to decide whether to take the case to a grand jury for possible indictment.

Defense attorney Ron Yengich and former BLM Director Pat Shea, an attorney, are representing DeChristopher.

Shea said Wednesday his client could face several felony charges with penalties that could include substantial fines and a prison term. Shea also said "someone" with the federal solicitor's office suggested that because the lease sale is in flux due to legal action, paying the $45,000 might help DeChristopher.

"I can't make any predictions," he said. "We've had very good cooperation with the BLM and the U.S. Attorney's office."

Shea said he believes the Federal Land Policy and Management Act of 1976 could provide DeChristopher with some legal cover, though others argue he would be bound by the Mining Act of 1872 to develop the parcels should he buy them.

Pro: BLM Utah Resource Management Plans

Opinion



by Selma Sierra
BLM Utah State Director




Selma Sierra, BLM Utah State Director


The Federal Land Policy and Management Act (FLPMA) mandates that BLM manage public lands for multiple use such as outdoor recreation, livestock grazing, energy exploration and production, conservation, and timber production. Additionally, the Act establishes that BLM sustain the health, diversity and productivity of the public lands for the use and enjoyment of present and future generations. In making decisions about land use, FLPMA requires the BLM develop Resource Management Plans (RMP) and update the RMPs when circumstances change and significant new information becomes available. These important land use decision documents require public input and participation.

Here in Utah, the BLM has nearly completed the task of revising six RMPs for the Moab, Richfield, Price, Vernal, Monticello, and Kanab planning areas. It has been nearly eight years since we began the planning process, which has been one of the longest and most intensive land use planning efforts the BLM Utah has undertaken. Revisions are necessary since some of the planning areas have not updated their RMPs in 25 years. Hundreds of thousands of public comments were considered during the planning process; dozens of meetings with our partners at the county and state levels have taken place to bring us to this point.

The BLM will continue releasing Proposed RMPs and Final Environmental Impact Statements (EIS) for each of the six planning areas in the coming weeks. The BLM has balanced multiple interests and priorities, creating a management framework to guide public land decisions.

Today the public debate is dominated by the need to identify opportunities for domestic energy supplies. Domestic sources of oil, natural gas and renewable energy play an important role in our nation’s security and stability. While the proposed plans envision maintaining areas open to oil and gas leasing, they would also institute protective measures during development, such as timing limitations, best management practices and advanced technology to minimize the footprint of developing those important resources.

In addition to proposing to accommodate our pressing national needs for energy development the plans also propose protecting public lands within the six planning areas where there are sensitive natural resources, making these lands off limits to surface disturbing activities, unavailable to oil and gas leasing or other restrictions. This type of protection would extend to almost one million acres of public land, in addition to nearly two million acres of existing wilderness study areas.

Regarding outdoor recreation, the plans consider opportunities for primitive recreation and managing certain lands in Utah to maintain, protect and enhance public land natural areas. In addition, BLM Utah proposes focusing off-highway vehicle (OHV) use to designated roads and trails. Social changes, chiefly the growing popularity of OHVs and population growth, have created a need to more closely manage this type of recreation.

BLM recognizes the value public lands hold for local communities and their economies. We have maintained a focus on supporting communities, their growth and diverse needs while maintaining national priorities and objectives, all within the context of BLM’s multiple use mandate. As State Director, I will continue to honor the integral role that the BLM and the land we manage plays in the livelihood and economies of local communities as we move forward to complete these vital planning proposals.

Con: BLM Utah Resource Management Plans

No management plan: BLM makes gift of land to off-roaders, drillers

Editorial
Salt Lake Tribune

It's an off-roader's dream: a federal management plan making nearly 2 million acres of public land a playground for off-highway vehicles. The Bureau of Land Management's proposal for the BLM lands in six Utah counties is also a gift tied with a big red ribbon and handed to oil and gas developers.

But it can hardly be called "management," especially the type of multiple-use management and land conservation the BLM is charged to provide for the Western lands owned by all Americans. By opening up 90 percent of the area to OHV use and 80 percent to drilling, the plan effectively excludes quiet recreation - mountain biking, hiking and backpacking - and sacrifices scenic vistas, wildlife habitat, and cultural treasures including archaeological ruins, relics and rock art.

This is not multiple use, but an attempt in the waning months of the Bush administration to remove public lands protections. The BLM, in approving this management plan for the Richfield area spread over Sanpete, Sevier, Piute, Wayne, Garfield and Kane counties, has taken the side of motorized recreation and energy development in the battle for some of the last untrammeled open spaces in the state.

The BLM is saying it will not protect endangered species and wilderness-quality areas from irresponsible OHV use that has already scarred public lands, caused erosion, disturbed the migratory habits and habitat of wildlife and dirtied creeks and streams. It will not limit the destruction of Richfield-area public lands caused by energy developers who cut roads, haul equipment and erect drill rigs on some of the most scenic places in Utah.

The plan would diverge from the BLM's own policy by allowing OHVs in areas of Factory Butte now closed by the BLM to protect two endangered plant species. The normal procedure would prevent reopening the area until the plants have rebounded, but this management proposal is anything but normal.

The Federal Land Policy and Management Act requires the BLM to "sustain the health, diversity and productivity of the public lands for the use and enjoyment of present and future generations." This plan ignores that mandate.

The mountains, rivers and forests comprising 2 million acres will be taken over by noisy, exhaust-spewing OHVs and greedy energy developers, eliminating the possibility that their wilderness qualities could be preserved for future generations. To them, we'll be known as the idiot generation.

Attack on 1872 Mining Act Flawed, Unfair to Miners

OPINION

By Mark R. Welch
Retired Mining Engineer
Albuquerque Journal

With reference to the article written by Oscar Simpson purporting to represent the New Mexico Wildlife Federation in the July 12 Journal titled "Wilson Can Save N.M.'s Outdoors Again," he made some seriously misleading statements regarding the 1872 Mining Act and mining on Federal lands.

Mr. Simpson stated that the act needed updating, but in fact, it has been indirectly updated through numerous regulations and laws over the years, especially with regards to environment considerations. The Act has served this nation very well, allowing the country to develop its mineral resources that are the basis, along with agriculture, of all of the wealth of the nation.

Then Mr. Simpson stated that mining companies pay $5 per acre to stake a claim of ownership on "our public lands." In the first place, the law applies to any citizen, not just mining companies.

Secondly, there is a recording fee and annual maintenance payment of $100 per claim that is required to be paid, but the $5 per acre fee he erroneously mentions pertains to the fee to be paid at the time a patent is issued to the claimant. However, due to a Congressional moratorium, no patents have been issued since 1994.

Further, by the time a patent is issued— if ever— the miner or mining company will have spent enormous sums of money to prove up the claim to the satisfaction of the U.S. Bureau of Land Management. Mining companies routinely spend millions of dollars just to evaluate a mineral deposit, let alone develop it. When he states that public lands the size of Connecticut have been made private over the years, he fails to point out that most patents were issued in the 1800s and early 1900s at a time that the nation was growing.

Where he comes up with Congress granting a tax break of $823 million to mining companies is unknown, but it should be noted that companies or individuals who are successful in developing a mine— approximately one prospect out of 1,000 examined— pay all kinds of taxes, including income taxes, if the project is profitable, property taxes, sales taxes, employment taxes, fuel taxes, and so on.

Then Mr. Simpson makes his most disingenuous statement, where he said that "mining companies are not even responsible for subsequent cleanup of the site once the claim is exhausted" and "the taxpayer get stuck with the bill— billions of dollars."

Either Mr. Simpson did not do his homework or is intentionally misleading the reading public. Had he bothered to look at the laws and regulations pertaining to mining claims (see Title 43 CFR Parts 3700 and 3800 as well as information put out by the U.S. Bureau of Land Management), he would have noticed that there are numerous federal regulations and laws that require a miner to file a Plan of Operations with the U.S. Forest Service or USBLM, which must go into detailed information on environmental assessments or impact statements, detailed descriptions of mining operations, detailed information on protection of the environment, and, not least, detailed information on reclamation procedures.

In addition, the miner must comply with a host of laws such as the Endangered Species Act, the National Environmental Policy Act, and the Federal Land Policy and Management Act, among others. If the applicant cannot meet the permitting requirements of the Federal agencies in accordance with all of the applicable laws and regulations, an operations permit will not be issued. It is as simple as that.

It is true that we have suffered from environmental degradation from mining operations conducted in the 1800s and into the 1900s, but today's mining company is most cognizant of its responsibilities to be a good citizen and do more than its share to mitigate any environmental damage caused by mining and exploration operations.

A typical mine takes somewhere between 10 and 15 years to develop— if it is a viable prospect— from the time it is discovered and many mines routinely cost in excess of $100 million to develop. Oftentimes, a mineral property will sit idle for decades awaiting new technologies or favorable mineral prices before it becomes possible to develop. It is hard, costly and demanding work and not for the faint of heart. The citizenry should bear that in mind when we lock up millions of acres from access to mining— wilderness areas, wilderness study areas, roadless areas, national monuments etc. I enjoy wild areas as much as anyone, and some areas are truly deserving of preservation. But, from a practical standpoint, we simply cannot develop a mine overnight if we really need the minerals during a national emergency.

By the way, Connecticut has an area of 3 million acres. The USBLM administers in excess of 260 million acres subject to mining claims in 19 states, primarily in the western U.S., and the U.S. Forest Service manages another 193 million acres. Assuming Mr. Simpson is correct in his numbers, the total land historically transferred as patented claims amounts to 7/10ths of 1 percent of the USBLM/USFS-managed public lands. This is about the same as the floor of an average two-car garage being superimposed on a football field. This is not very much considering the tremendous national wealth that has been generated by mining on public lands.

Finally, the public is encouraged to visit mining operations today and see for themselves how operations are conducted, and then, if they so choose, go prospecting and stake their own claims if they find a locatable mineral deposit.

It is their right as a citizen of the United States.

Mark Welch is the former Chief Executive Officer of Nord Pacific Ltd., a New Mexico-based mining company. He retired after more than 35 years in the mining industry, both as a mining engineer and executive.

Interior encourages BLM land sales

Selling public lands will let Western cities sprawl into new territory

Zachary Smith WESTERN ROUNDUP
High Country News

In a couple of years, BLM lands around fast-growing cities like St. George, Utah, could hamper growth.

More than 20 years ago, President Ronald Reagan and his advisors looked across the West’s public lands and saw dollar signs. Money was something they desperately needed in 1982, as the national deficit hit $128 billion.

So James Watt, then U.S. secretary of the Interior, and John R. Block, the secretary of Agriculture, earmarked 35 million acres, or 5 percent of the nation’s public lands (excluding Alaska), for the auction block.

The plan to privatize public lands was met with outrage and skepticism, not only from Western liberals such as Arizona Gov. Bruce Babbitt, but also from conservatives like Sen. James McClure, R-Idaho, who objected because the states were cut out of the deal.

Watt eventually withdrew Interior lands from the sale; shortly thereafter, the Forest Service’s sale lost steam, too.

However unpopular the proposed sales were, they weren’t illegal. And the idea didn’t go away. The framework for selling public lands has inched forward since the Clinton administration, and now the Interior Department wants to give it a higher priority.

The 1976 Federal Land Policy and Management Act (FLPMA) required the Bureau of Land Management to identify lands that were "uneconomical to manage," or that stood in the way of a community’s development.

But the BLM lacked a strong incentive to identify such sellable lands: Under FLPMA, any money received from their sale would go directly into the U.S. Treasury, rather than into the agency’s own coffers.

Then, in 2000, Congress and the Clinton administration passed the Federal Land Transaction Facilitation Act (FLTFA), which changed how profits from BLM land sales were distributed.

Twenty percent of any land-sale revenue would go toward the BLM’s administration costs, while the other 80 percent had to be used to buy private inholdings within BLM lands that contained "exceptional resources."

The act was based on a land disposal and acquisition mechanism in the Southern Nevada Public Land Management Act of 1998, which was crafted to accommodate Las Vegas’ rapid expansion onto neighboring public lands.

But FLTFA’s profit scheme applied only to sellable lands identified before July 25, 2000. At that time, the BLM estimated it had 3.3 million acres of sellable land, but thanks to better inventories, its estimate has since shrunk to as low as 330,000 acres.

From 2001 to 2003, the BLM sold almost 11,000 acres under FLTFA.

Today, cities like Phoenix, Ariz., and St. George, Utah, are butting up against public lands, and the BLM is facing a $320 million budget reduction from last year.

At the same time, the agency is chipping away at a backlog of dated land-use plans, which gives it the opportunity to identify more disposable lands. Now, politically appointed staffers at the Interior Department want to give the BLM even greater incentive to do so.

In August, Assistant Interior Secretary Lynn Scarlett, who oversees the BLM, wrote to Speaker of the House Dennis Hastert, R-Ill., asking for legislative amendments to FLTFA that would encourage the BLM to sell off more land. She has asked Congress to make the identification and selling of disposable land an ongoing process, rather than one limited to land identified before the July 2000 cutoff date.

Twenty percent of any revenue would still go to the BLM’s administrative costs, but under Scarlett’s proposal, only 60 percent of the money would go toward land acquisition. The other 20 percent would go toward "conservation enhancement projects," to fund local projects such as riparian improvement or removing invasive weeds.

Abolishing the July 2000 deadline gives the BLM "the incentive to decide to designate (new) lands as disposable," says Johanna Wald, an attorney for the Natural Resources Defense Council. Wald thinks this change could open the door for much more land to be added to the "for sale" list.

Two decades of hard work, plowed under

Wilderness activists look on as the Bush administration gives oil and gas drillers first crack at the West’s last wild lands




by Matt Jenkins
High Country News





Oil well at the top of Long Canyon near Dead Horse Point State Park, Utah.

BIG RIDGE, COLORADO — Not far from the northwest Colorado oil and gas outpost of Rangely, benches of shattered sandstone rise to a seven-mile-long, piñon-and juniper-mottled landmark called Big Ridge. A herd of wild horses ranges across the land here, and the draws that run down from the 7,500-foot-high ridge shelter Fremont Indian pictographs, petroglyphs and archaeological sites that date from around 600 to 1300 A.D. On a bitterly cold December day, the flat winter haze has given way to a deep cerulean blue. Time seems to be marked only by the lazy pass of an eagle overhead.

In its own modest way, Big Ridge stands where two worlds collide. It is one small chunk of the Piceance Basin, a gigantic oil and gas field that has lured energy companies for decades. But it is also still a relatively untouched island, and conservationists have tried to protect it as wilderness.
In 1997, Amoco drilled a well here, but came up dry. The company plugged the well and moved on, leaving behind a half-mile of road and a barren well pad. At about the same time, the Colorado Environmental Coalition (which would later team with several other groups to form the Colorado Wilderness Network) discovered that Big Ridge still qualified as wilderness, as defined in the 1964 Wilderness Act: "an area of undeveloped Federal land retaining its primeval character and influence … with the imprint of man’s work substantially unnoticeable."

In July 2001, the Wilderness Network nominated the area to the federal Bureau of Land Management (BLM) for protection as wilderness. That nomination was a gamble: Just eight months earlier, another oil-and-gas company had leased several parcels of the area. And oil and gas leases generally trump a wilderness designation, even if they haven’t been developed yet.

"Even though the area was leased, the larger landscape was getting hammered," says CEC’s Kurt Kunkle, who helped identify the area as potential wilderness. "Protecting a little part of that seemed important, so we were willing to take the risks."

At first, the gamble seemed to pay off. Under a Clinton-era directive, the BLM agreed to include Big Ridge in its roster of places that might be eligible for wilderness protection, and to take a "second look" at any proposal — such as oil and gas drilling — that might disqualify it from protection. As a result, in 2002, when El Paso Corporation applied to the BLM for permission to drill an exploratory well on its lease in the proposed wilderness, the BLM thought twice about allowing it. The agency gave El Paso permission, but only after it determined that the well would affect just .01 percent of the proposed wilderness. The company promptly drilled another "duster," a dry hole.

It looked, for a moment, as if Big Ridge might escape with only a few scars. Then, last April, wilderness activists across the nation were rocked to their core. Interior Secretary Gale Norton and then-Utah Governor Mike Leavitt settled a wilderness lawsuit that blew the doors wide open for drilling in Big Ridge and many of the hundreds of other areas in the West proposed for wilderness protection (HCN, 4/28/03: Wilderness takes a massive hit).

Just over a month later, El Paso applied for — and quickly won — permits to drill five more wells in the proposed Big Ridge wilderness. Last November, the company tried a second well about 200 feet from Amoco’s dry hole. That, too, proved dry. Late in the month, El Paso plugged the well and abandoned it; the company has momentarily pulled out and is deciding whether to drill the other four wells.

A few days after El Paso moved out, I arrive with Jennifer Seidenberg and Reed Morris from the Colorado Environmental Coalition. We park our cars at the bottom of the hill and hike the half-mile up to the abandoned drill pad. The sign from the earlier Amoco lease has been knocked to the ground, and silence reigns over the site. In the middle of the 1.3-acre pad bulldozed out of the side of a ridge, the well — a capped pipe — sticks out of what looks like a bomb crater of oozing muck.

On the edge of the pad, a rented trailer sits empty, its TV satellite dish pointed at the sky. The door is unlocked. Inside, mud is caked on the thin carpet, and the just-departed drillers have left a note on the counter: "Sorry to leave a mess."

The making — and the undoing — of the citizens’ wilderness movement

Welcome to the world of citizen-led wilderness protection. Behind the big official wilderness areas — celebrated places like the John Muir Wilderness in California and the Frank Church-River of No Return Wilderness in Idaho — a gritty, on-the-ground fight is on to protect the West’s last remaining wild places. These are areas that citizens’ groups believe should be protected from harm until Congress can decide whether to formally recognize them as wilderness areas.

Many of the proposals have been around for years. But they may not survive much longer, because the Bush administration has made energy development the first priority on public lands. Big Ridge is an emblem of what could happen to the several hundred proposed wilderness areas throughout the West. This fall, the BLM began offering a new wave of oil and gas leases that could set the stage for intensive development on lands that, only eight months ago, the agency considered candidates for wilderness.

Understanding the recent controversy requires going back to 1964, when Congress passed the Wilderness Act, laying the foundation for subsequent bills that protected over 400 wilderness areas on the national forests. In 1976, Congress passed the Federal Land Policy and Management Act (FLPMA), which expanded the Wilderness Act to cover lands run by the Bureau of Land Management. It gave the BLM 15 years — until 1991 — to recommend wilderness areas to Congress. As a result, the 1990s saw several large BLM wilderness bills, including the 1990 Arizona Desert Wilderness Act and the 1994 California Desert Protection Act.
FLPMA did something else that was significant: It opened the door for continuing, citizen-initiated efforts to protect more BLM wilderness (HCN, 3/23/03: The Wild Card). The law required the BLM to continuously inventory "resource and other values" on public lands, and to protect those values. That allowed citizens’ groups to find lands that met the BLM’s own criteria for wilderness — areas larger than 5,000 acres that were roadless and free from human disturbance — and to ask the agency to protect those lands until Congress could decide.

These are not "wilderness study areas," which, for the most part, the BLM itself identified and must manage as wilderness until Congress has the opportunity to grant — or deny — them formal protection. Instead, they’re more like proposed wilderness study areas: wilderness-quality lands that the agency missed during its own inventories.

During the Clinton administration, the BLM agreed to take another look before permitting potentially damaging activities on these lands. According to Dave Alberswerth, who served as a special assistant to the Interior Department’s head of land and mineral management during the Clinton administration, and now works for The Wilderness Society, "The idea was to try to protect — within the secretary of the Interior’s discretion — the wilderness, roadless, undeveloped character of lands proposed for wilderness designation. For a while, it became known as the ‘take-care’ policy."

The BLM wasn’t required to protect these areas as wilderness, but it could impose stipulations on development projects, to minimize their impacts on wilderness character, or recommend postponing such projects. And in practice, the BLM frequently denied mineral leases on these lands.

Clinton’s secretary of the Interior, Bruce Babbitt, gave citizens’ wilderness proposals their most explicit recognition in Utah. In its initial inventory in the 1980s, the Utah BLM identified only 3.2 million acres — which remain protected as wilderness study areas, because Congress has yet to pass a BLM wilderness bill for the state. Not satisfied with this, activists did their own inventory, spurring the agency to designate an additional 2.6 million acres as "wilderness inventory areas," bringing interim protection to a total of about 5.7 million acres.

Wilderness advocates scored a similar victory in Colorado, where in 1997, the BLM agreed to take a "second look" at a total of 600,000 acres proposed for wilderness protection by the Colorado Environmental Coalition.

In both Colorado and Utah, the BLM began to consider giving citizen-proposed wilderness more formal protection. In January 2001, Babbitt issued the BLM Wilderness Handbook, which laid out a standardized, nationwide procedure for determining which lands were eligible for "upgrading" from citizen-proposed inventory areas to official wilderness study areas.

But the Handbook was issued without an opportunity for public comment, in a wave of controversial last-minute directives just 10 days before President Clinton left office. The Utah government, and the oil and gas companies, saw the Handbook as a circumvention of public process.

"There is a big difference between BLM giving essentially policy effect to environmental groups drawing their private line on the map, and the public process of oil and gas leasing," says John Andrews, associate director and general counsel of Utah’s School and Institutional Trust Lands Administration, who fought the rule.

And the Handbook played straight into an intensifying debate over FLPMA. Wilderness foes contend that the BLM had a one-shot opportunity to recommend potential wilderness to Congress — and that the opportunity ended with FLPMA’s 1991 deadline. By their reckoning, the citizens’ wilderness proposals were moot; they’d come in too late.

Again, the locus of that fight has been Utah. In 1996, the state sued the U.S. Department of the Interior, arguing that the BLM didn’t have the authority to add areas it missed the first time around. But two years later, the 10th Circuit Court of Appeals rebuffed the state when it ruled that the "plain language" of FLPMA required the BLM to continue to inventory potential wilderness.

The ruling only fueled frustration among oil and gas companies. "People had a horrible time getting (drilling permits) through. It was this endless cycle of review," says Connie Brooks, a Denver lawyer who represented Utah in the wilderness case. The citizen-proposed wilderness in Utah, she says, "was the land in between. It was basically off-limits for oil and gas leasing. (BLM) would actually use pages from Wilderness on the Edge" — a compendium of citizen-proposed wilderness put together by the Utah Wilderness Coalition — "and they’d redraw the boundaries (of leases offered for sale). We had them cold on it."

According to the Utah BLM, between November 1999 and April 2003, energy companies sought leases on 214,170 acres of wilderness inventory areas and citizen-proposed wilderness. The BLM turned down all of them.

But last March, Gov. Leavitt resurrected Utah’s legal challenge — and got a very different reaction from the Bush-appointed leaders in the Interior Department. Late in the day on Friday, April 11 — just two weeks after Utah refiled the lawsuit — Secretary Norton signed the settlement agreement that stripped interim protection from Utah’s 2.6 million acres of wilderness inventory areas and invalidated Babbitt’s Wilderness Handbook.

"We looked at the concerns Utah was raising, and took a close look at the law," says Lynn Scarlett, the Interior Department’s assistant secretary of Policy, Management, and Budget. "People might have hoped it said something different, but our read is that Congress said, ‘There’s the process, and it’s 15 years, and that’s the end of that.’ "

On Sept. 29, BLM Director Kathleen Clarke officially rescinded the interim-protection policy nationwide, removing protection from millions of acres and dealing a serious blow to two decades of citizens’ effort to save the West’s last wild places.

All of the citizens’ wilderness proposals that fell under the old policy "had a chance to be protected as wilderness," says Ted Zukoski, a lawyer for Earthjustice, a nonprofit environmental law firm. "Now, BLM is saying, ‘We can’t and we won’t plan to protect that character in terms of creating (wilderness study areas).’ BLM is making those decisions now that will make it impossible for those areas to be protected in the future. That’s what we’re losing."

Now, as at Big Ridge, the oil and gas industry is beginning to move drill rigs onto lands it already has leased. And it’s looking to lease more: One series of proposed wilderness lands has already hit the auction block, and a second is coming in a matter of days.

Legal settlement blows away a homespun wilderness proposal

Thirty miles west of Big Ridge, just south of Vernal, Utah, lies another area that’s long been torn between wilderness and energy development. Here, the White River cuts through the Uinta Formation on its way to the Green River, creating towering turrets and battlements. On the benchlands above the river, golden eagles roost atop old sheepherders’ cairns on sandstone outcrops.

Back in 1871, explorer Frederick Dellenbaugh, who was part of John Wesley Powell’s expedition, wrote of the area: "Beautiful is the wilderness at all times, at all times lovely, but under the spell of twilight it seems to enfold one in a tender embrace, pushing back the sordid, the commonplace, and obliterating those magnified nothings that form the weary burden of civilised man."

Starting in the 1950s, the Vernal area was largely overrun by oil and gas development. But the area around the White River came to stand at the center of a truly homegrown wilderness proposal. In 1985, a doctor named Will Durant and an oil and gas driller named Doug Hatch ran the river with Clay Johnson, a local machinist — who found the spot Dellenbaugh described, with the help of a postage-stamp sized sketch in the fold of another explorer’s journal.

The following winter, says Durant, "We sat down at Doug Hatch’s kitchen table, and pulled out the topo maps and started drawing lines. We shrunk it as much as we could to avoid anything that would interfere with the proposal."

On paper, they came up with about 9,000 acres, which they then checked on the ground to be sure that no roads or wells would disqualify them from protection. "We’d go out and get lost and wander around, and then we’d try to figure out where we went. We were pretty satisfied that everything was copacetic," Durant says.

As it turned out, their proposal wasn’t perfect: An oil company held a lease within the area. But they were able to stave off development of the lease in an exhausting fight that went all the way to an Interior appeals board in Washington, D.C. Later, Durant’s Uintah Mountain Club teamed up with the Salt Lake City-based Southern Utah Wilderness Alliance, which expanded the club’s proposal to about 19,000 acres, and incorporated it into what is now a 9.1-million acre statewide wilderness proposal. In 1999, the BLM designated 15,800 acres of land around the White River as a wilderness inventory area.

In the 3.3 million acres of land that the BLM’s Vernal field office administers, a 15,800-acre wilderness inventory area was a small but important contrast to the rest of the well-dotted landscape. Many in the agency realized its significance. While the BLM couldn’t deny a company’s "valid existing right" to drill, which comes with a lease, it could refrain from issuing new leases, and it could quietly allow existing ones to expire. And that’s what it did.

"I think the BLM realized how important it was to us," says Durant, "and I think there were some people in the BLM who wanted to see more balance."

But the expanded 15,800-acre area brought more trouble, because some of the newly incorporated land was already leased for oil and gas development. And in 1997, the consortium that owned those leases, the Resource Development Group, started pushing to drill.

The Uintah Mountain Club may have felt it had BLM support in the earlier fight, but all that changed following the Norton-Leavitt settlement. Last summer, three months after the settlement, the BLM released a draft environmental impact statement that would allow 423 wells south of Vernal, including 15 wells in the White River wilderness inventory area, and 35 more in the citizen-proposed areas nearby. A final environmental impact statement should be completed before this summer, and drilling could start any time after that.

"Up until recently," says one agency insider, "it looked like, of any place in the state, (White River) was going to be wilderness."

Now, that looks unlikely.

Oil and gas companies rush onto wild lands

Last October, Pete Kolbenschlag of the Colorado Environmental Coalition (CEC) wrangled a spot in an oil-and-gas leasing course put on by the Rocky Mountain Mineral Law Foundation. Kolbenschlag found himself filling out a worksheet on how to bid for an oil and gas lease in an area proposed by his group for wilderness protection.

The exercise, written by Craig Carver, a Denver lawyer who represented Marathon Oil in a mid-’90s wilderness battle against CEC, reads: "The current Secretary of the Interior has determined to turn over management of the surface and subsurface resources of the CEC lands to those friends of the Vice-President who served on his energy advisory board. You can’t find out who those folks are, but they tell us to lease the CEC tracts come hell or high water."

As industry dives in, BLM offices have clear direction from Washington, D.C., to make oil and gas their first priority. Four months after taking office, President Bush issued two back-to-back executive orders, directing government agencies to expedite energy projects, and ordering agency managers to produce extensive documentation any time they deny a project. At the same time, Vice President Dick Cheney’s energy task force called for expediting development in the Rocky Mountain states. This summer, the Bush administration established the Rocky Mountain Energy Council to fast-track oil and gas projects.

Not all of this started with Bush. In November 2000, President Clinton signed the Energy Policy and Conservation Act Amendments (EPCA), which required the Departments of Interior, Agriculture and Energy to study oil and gas reserves on federal lands, and "restrictions or impediments" to their development. That report was released last January, and the April wilderness settlement knocked a lot of "impediments" out of the way. In August, BLM Director Kathleen Clarke issued a memo to agency managers, requiring them to re-evaluate restrictions "in areas where access to public lands and energy minerals is severely restricted."

Washington is also taking a much more hands-on approach. "People at the very local level are getting phone calls from these political people within the (Interior) department, saying what to do," says Martha Hahn, the former BLM state director in Idaho. "(As) a state director, you constantly try to buffer everything that’s being shot at you and your employees (from Washington, D.C.) and keep your employees on task. The political types in the department are going around that buffer. It’s driving the state directors crazy."

Hahn was pushed out of her position with the BLM in 2002 under pressure from Sen. Larry Craig (HCN, 3/18/02: BLM director forced to resign). She later lost a job at the Argonne National Laboratory, after she was quoted in a Vanity Fair article critical of J. Steven Griles, the former oil-and-gas industry lawyer who is now second-in-command of the Interior Department.

The political types have made it clear that dissent will not be tolerated. In an appearance before the Interstate Oil and Gas Compact Commission in Reno, Nev., last October, BLM Director Clarke said land managers in her agency had "lost some discipline, lost some accountability, did a lot of freelancing." According to The Associated Press, Clarke vowed to send a "team to look at some of our more problematic field offices."

It’s almost impossible to get BLM staffers to talk about life inside the agency these days. Two current BLM state directors contacted for this story declined interviews, and only a handful of BLM employees would comment on the record.

"The pressure, in terms of them not saying anything, is so huge it’s obvious," says Hahn. "People are just terrified right now." But the shift within the agencies is clear: In the wake of the April wilderness settlement, the BLM has been moving to get citizens’ wilderness lands back into the leasing line-up — first and foremost in Utah. A July 2003 briefing for BLM Director Clarke noted that Washington sees Utah as "leading the way" in leasing such areas. The memo proposed establishing a "SWAT team" to conduct the environmental analysis for leasing "backlogged" wilderness inventory and citizen-proposed wilderness areas.

This November, the first of the Utah wilderness inventory areas hit the auction block in the BLM’s quarterly oil and gas lease sale. Several found no buyers. But several parcels in a former wilderness inventory area in Desolation Canyon on the Green River — best-known as a boaters’ paradise, but also on the edge of a large oil and gas field — were actually purchased. (The BLM did defer five parcels for further analysis of their "wilderness characteristics.")

"A lot of the areas that are moving forward with potential leasing activity are adjacent to long-standing oil and gas activity," says Interior’s Lynn Scarlett. "In many instances, the leases are smack-dab next to (existing) oil and gas activity."

A much bigger round of parcels will be leased from late January to mid-February, including parts of citizen-proposed wilderness in four states (see list at left).

In Vernal, the first rumblings of change came last year, with a massive seismic exploration project that, in part, targeted two wilderness inventory areas and four citizen-proposed wildernesses. "I think (that) was just an eye-opener for what was getting ready to happen," says Mary Hammer, a former Vernal BLM wildlife biologist. "As soon as that (Norton-Leavitt) settlement was reached, it was like, ‘Bingo! We’re gonna go in.’ "

One BLM employee says that in areas like Vernal, "Up until recently, industry was pretty cooperative. Even if they had a lease in one of these areas, they wouldn’t exercise it. But right now, because they’re being politically pushed, they’re coming in right and left."

John Andrews, of Utah’s School and Institutional Trust Lands Administration, downplays the leases. "Don’t buy into the concept that, if lands are leased, ruin and destruction are actually happening. From leasing to any sort of significant development involves a lot of what-ifs, and the percentage of leases that ultimately have much activity on them is very, very limited."

Nonetheless, these new energy leases are the biggest threat to the future of wilderness. "Undoing" leases is next to impossible, buying them out is extremely expensive, and they give companies a right to drill. They lay a nearly bomb-proof foundation for future development.

And if there’s a sense of urgency in the rush to drill, it may be because the Norton-Leavitt settlement has not gone unchallenged. A coalition of environmental groups, represented by Earthjustice and including The Wilderness Society, SUWA, the Colorado Environmental Coalition, and several other state wilderness groups, has asked the federal courts to overturn the settlement. The challenge is now before the 10th Circuit Court of Appeals in Denver — the same court that shot down the state’s anti-wilderness lawsuit in 1998.

The industry is pushing hard to buy leases before that challenge gets heard by a judge, says CEC’s Kolbenschlag. "They want their drilling permits approved, they want to get those leases in — they want to have all that stuff ready to go, because they know they can get it in now."

The battle rages on in the courts

To some extent, the legal challenge to the Leavitt-Norton settlement may be tempering the rush into wild areas.

"I think it’s a very great disincentive," says Craig Carver, the Denver lawyer who wrote the exercise teaching companies to lease proposed wilderness areas. "Industry doesn’t like controversy; it’s not a good place to invest money."

Now, conservation groups are engaged in the legal equivalent of hand-to-hand combat, challenging every lease and drilling permit application. The Colorado Environmental Coalition has appealed El Paso’s wells on Big Ridge to the Interior Department’s Board of Land Appeals. The Resource Development Group’s proposal to drill in the White River area will almost certainly be challenged. And the November lease sales in Utah are under litigation by SUWA.

Earthjustice and The Wilderness Society have also sued to gain access to the records of the negotiations between the Department of the Interior and Utah that resulted in the Norton-Leavitt wilderness settlement. But challenging even one specific project requires tremendous resources. And for some spots, such as Colorado’s Big Ridge, it may already be too late.

Back at Big Ridge, Seidenberg, Morris and I walk up to the first well El Paso drilled and abandoned. We’re in no hurry: Occasionally, we step off the road to weave through old-growth piñon, the ground beneath the trees dappled with snow and rich moss. When we finally reach the well, we find that the pad is in the first stages of a long recovery. Shredded piñon and junipers have been raked across the ground, but the scar is unmistakable.

As the sun begins to dip and the cold sets in, we linger a while. We take in Big Ridge itself, rising to the east. And we talk about that question of balance that follows the wilderness movement, always.

In the Rocky Mountain states, about 2.5 percent of the land is protected as wilderness. Roughly 64 percent of the public land is open to leasing. "Look at what we’re trying to save vs. what oil and gas companies have access to," says Morris. "Oil and gas wants all of it. We want to protect 5 percent."

Big Ridge is by no means the last chance for the gas companies — there’s plenty more land, even around here, for them to take a stab at. But here in the Piceance Basin, Big Ridge may be the last chance for wilderness. And for now, it looks as if that chance has been lost.

Interior’s Lynn Scarlett points out that, in oil and gas leasing and development, "there’s a lot of points of public engagement as you march along in the process" — points where concerned citizens can intervene to shape the fate of wild places. But while the public still has a voice with the BLM on how those areas will be developed, protecting them as wilderness is no longer an option.

In the painfully delicate balancing act called multiple use, wilderness — and its citizen supporters — have been cut out of the picture. "Why is it that you can keep leasing forever?" Seidenberg asks as we begin to trudge back through the snow and mud. "You can keep finding oil. But you can’t find any more wilderness."

Matt Jenkins is associate editor for High Country News.
These stories were made possible with support from the following individuals: Grant Heilman, Farwell Smith, Nelle Tobias and Andy Wiessner.

Southern Utah Wilderness Alliance 801-486-3161, www.suwa.org

Colorado Wilderness Network 970-385-8509, www.cowildernessnetwork.org

The Wilderness Society 800-843-9453, www.wilderness.org

Campaign for America’s Wilderness 202-544-3691, www.leaveitwild.org

Earthjustice 510-550-6700, www.earthjustice.org

U.S. Department of the Interior 202-208-3100, www.doi.gov

Bureau of Land Management 202-452-5125, www.blm.gov

Independent Petroleum Association of Mountain States 303-623-0987, www.ipams.org

The Oil and Gas Accountability Project posts a list and maps of BLM parcels being offered for sale (including details about which of them overlap with citizen-proposed wilderness) at www.ogap.org, under "lease sale maps."

Bush Administration Formalizes Anti-Wilderness Policy

Issues Directive to Halt Future Wilderness Consideration on BLM Land

Press Release
Wilderness Society

On September 29, 2003, the Bush administration issued a national policy guidance preventing the Bureau of Land Management (BLM) from inventorying or protecting wilderness-quality lands. This decision formalizes a court settlement between the Bush Administration and Utah Governor Mike Leavitt. The new directive by the Department of the Interior for its land managers reverses decades of wilderness policy and puts the interests of drilling, mining, logging and road construction ahead of the public interest. This directive is the latest of a number of steps the Bush Administration has taken to weaken protection for America's wilderness areas.

The new directive, in the form of an instruction memorandum, specifically prevents land managers from inventorying and recommending BLM land for wilderness study and designation. The 80,000-acre Sand Tank Mountains in Arizona, recently acquired from the Department of Defense, and the spectacular 38,000-acre Roan Plateau in Colorado (transferred to BLM in 1997) are among the first casualties of this policy change and now officially lose any opportunity for wilderness consideration and protection. BLM's abandonment of protection for wilderness lands outside the Reagan-era wilderness reviews revokes a policy followed by every president since Jimmy Carter.

For nearly three decades, on-the-ground BLM management experts considered the values of wilderness on the same level as other possible land uses -- including development -- and provided the American public an opportunity to have a voice in the use decision.

The guidelines suggest that BLM will have the authority to protect "scenic values," "unfragmented habitat," and restrict ORV use, but the steps the agency must go through essentially preclude any true protection of wilderness-quality lands as wilderness study areas.

The Bush Administration often touts the 22 million acres of wilderness areas and wilderness study areas (WSAs) on its lands as evidence that no more protection of these areas is needed. But that 22 million acres is less than 10 percent of all public lands managed by BLM. In addition, the Interior Department has petitioned the Supreme Court to overturn a lower court decision that permits citizens to hold the Department accountable when it fails to protect wilderness character. The Administration also touts alternate designations such as "Areas of Critical Environmental Concern" or ACECs, as suitable replacements for wilderness. But these areas are often open to destructive uses such as oil and gas drilling, logging or mining. For example, one-third of all ACECs in Colorado have already been leased for drilling.

This formal policy has an immediate effect on wildlands in several states including Colorado where 600,000 acres of public land in the state are withdrawn from future consideration as wilderness. Places like Vermillion Basin are stripped of potential protections by this top-down policy.

Background

In April 2003, the Department of Interior settled a lawsuit with the state of Utah that impacted tens of millions of acres of land in the West managed by the Bureau of Land Management (BLM). The backroom deal rescinded interim protections for millions of acres of wilderness-quality lands and reversed the department's long-standing policy to inventory and recommend lands for wilderness designation. Land managers, tasked with planning the use of public land by the BLM, have been without formal guidance on how to implement the profound policy changes resulting from this backdoor deal. In addition, many local BLM staff first learned of the administration's actions through media reports. As part of the settlement, the Bush administration threw out the Wilderness Inventory Handbook, which guided land managers in fairly inventorying wilderness-quality lands and protecting them during BLM land use planning -- as required by the Federal Land Policy Management Act.

Wilderness takes a massive hit

The door closes on new BLM wilderness proposals

by Matt Jenkins
High Country News

For years, wilderness groups have been hounding the Bureau of Land Management (BLM) to continue to identify lands worthy of formal protection as wilderness. An initial round of wilderness inventories, completed in 1991, led to protection of 6.5 million acres of BLM wilderness. But citizens' wilderness groups argued that substantial areas of potential wilderness were overlooked. In Utah, for instance, the original BLM inventory identified 3.2 million acres which met Wilderness Act criteria - areas larger than 5,000 acres with "outstanding opportunities for solitude or a primitive and unconfined type of recreation." But the Utah Wilderness Coalition argued that the true number was closer to 9 million acres and - under the direction of Clinton-era Secretary of the Interior Bruce Babbitt - the BLM re-inventoried its Utah lands, ultimately identifying an additional 2.6 million acres eligible for protection.

But on April 11, the BLM stepped back in time. The Department of the Interior settled a lawsuit with the state of Utah, eliminating the 2.6 million acres of potential wilderness identified during the 1990s. Not only that, but Interior also agreed to prohibit the BLM from conducting further wilderness inventories or designating new "wilderness study areas" without explicit congressional direction - a policy the Interior Department intends to extend across the West.

Interior Secretary Gale Norton outlined the new policy in letters sent the same day to Sen. Pete Domenici, R-N.M., and Sen. Bob Bennett, R-Utah. It effectively knocks tens of millions of acres out of the running for wilderness protection - and it will likely open up wildlands to development just as the BLM implements a new industry-friendly policy for oil and gas drilling on its lands.

"You have to understand just how radical a proposition this is," says Jim Angell, an attorney for Earthjustice, the nonprofit law firm that represents several wilderness groups. "What they're saying is: Those wilderness inventories that got done, for the most part, under Reagan - and were deeply flawed and highly political back then - are what we're stuck with. BLM can't even re-inventory its own lands to see if they're eligible for wilderness. They have to turn a blind eye to those lands and continue to develop them."

A long battle

The 1964 Wilderness Act directed the U.S. Forest Service to identify forestlands that might qualify for protection as wilderness. But it wasn't until 1976, with the passage of the Federal Land Policy and Management Act (FLPMA), that the same mandate was extended to the BLM. FLPMA required BLM to complete a one-shot, nationwide inventory of eligible wilderness by 1991. As a result, Congress formally protected 6.5 million acres of BLM land as wilderness, while another 15.5 million acres were protected as wilderness study areas for future consideration.

But the BLM's responsibility didn't end there. Federal law requires the agency to maintain an ongoing inventory of potential wilderness. That opened a window of opportunity to wilderness groups, which argued the agency's initial surveys were far from complete. After years of on-the-ground surveys by citizens, the groups took their findings to the BLM and urged the agency to consider more areas for protection.

"It's been very common practice for the BLM to recognize that the first inventories that were done in the mid- to late-'80s, were not entirely accurate," says Heidi McIntosh of the Southern Utah Wilderness Alliance. Interior Secretary Babbitt recognized this and in 1996, he called for the re-inventory of BLM land in Utah, which ultimately identified 2.6 million more acres of potential wilderness.

The agency did a similar thing in Colorado. In 1996, the Colorado Environmental Coalition pushed the BLM to re-evaluate the Vermillion Basin, an oil-and-gas hotspot in the far northwest corner of the state that was being eyed for development by the Marathon Oil Company (HCN, 8/5/02: Land plan attracts an anti-grazing gorilla).

"We were making the case that BLM shouldn't allow any wilderness-damaging activities until (it) has a chance to take a second look," says Jeff Widen of the Colorado Environmental Coalition. And the BLM agreed, identifying some 600,000 acres of land - not only in the Vermillion Basin, but around the state - to protect as wilderness study areas until Congress could consider them for formal wilderness designation.

These re-evaluations were not without controversy. In 1996, the state of Utah sued Interior to invalidate Babbitt's new survey. The state abandoned the suit after an appeals court upheld the BLM's authority to re-inventory wilderness. But this March, Utah refiled, and just two weeks later - on April 11 - the state and the Interior Department announced that they had reached a settlement.

"The timing of the suit is incredible," says Widen. "A number of state-based wilderness groups tried to intervene, and before the judge ever even ruled, Interior just came out of the blue and settled this thing." The settlement follows a Bush administration pattern of inviting lawsuits that could weaken environmental protection and then settling them out of court (HCN, 10/14/02: Wildlife Service bows to home builders).

The end of wilderness?

The new policy could demolish efforts for more wilderness protection - and it is likely to spread quickly region-wide.

The Utah settlement came on the heels of two March letters to Norton from Republican senators and congressmen in Utah, Colorado, Idaho, New Mexico, Nevada, Arizona, California and Montana, asking that "the Bureau of Land Management immediately suspend any new wilderness reviews of public lands other than reviews specifically directed by an Act of Congress." In her April 11 letters to Senators Bennett and Domenici, Secretary Norton made it clear that the invalidation of wilderness proposed after 1991 would extend across the West.

"It's pretty clear that what we're going to see BLM start doing pretty quick is start leasing lands (for oil and gas development) that are in citizens' wilderness inventories," says Ken Rait of the Campaign for America's Wilderness. In Colorado, the first land on the block could be the Vermillion Basin and the energy-rich Roan Plateau near Rifle. In Utah, it's the area around Moab as well as the Book Cliffs outside of Green River, which have long been eyed by oil and gas companies.

The Arizona Wilderness Coalition's just-released, million-acre wilderness proposal for the remote Arizona Strip, north of the Grand Canyon, is also on the rocks, and the new policy affects wilderness efforts in California, New Mexico, Nevada, Oregon and Idaho, as well.

Wilderness groups are still pondering their response to the move, but a lawsuit seems likely. Says Widen, "BLM didn't say to the oil and gas industry, 'You applied for drilling permits back in 1980-whatever, so you had your chance.' "

"This is a major issue for the future of the BLM and how it will manage its lands in the 21st century," says The Wilderness Society's Dave Alberswerth. "It's wrong for the administration to say, 'We're never going to do wilderness again.' "

Matt Jenkins is an assistant editor for High Country News.

• U.S. Department of the Interior, John Wright, 202/208-6416,www.doi.gov;

• The Wilderness Society, Dave Alberswerth, 202/833-2300, www.wilderness.org;

• Campaign for America's Wilderness, Doug Scott, 206/342-9212, www.leaveitwild.org.