L.A. took their water and land a century ago. Now the Owens Valley is fighting back

The Los Angeles Aqueduct, which transports water from the Owens Valley to Los Angeles, was built in the early 1900s. (Los Angeles Times)

By Louis Sahagun
Los Angeles Times

BISHOP, CALIF. -- A century ago, agents from Los Angeles converged on the Owens Valley on a secret mission.

They figured out who owned water rights in the lush valley and began quietly purchasing land, posing as ranchers and farmers.

Soon, residents of the Eastern Sierra realized much of the water rights were now owned by Los Angeles interests. L.A. proceeded to drain the valley, taking the water via a great aqueduct to fuel the metropolis’ explosive growth.

This scheme became an essential piece of California history and the subject of the classic 1974 film “Chinatown.” In the Owens Valley, it is still known as the original sin that sparked decades of hatred for Los Angeles as the valley dried up and ranchers and farmers struggled to make a living.

But now, the Owens Valley is trying to rectify this dark moment in its history.

Officials have launched eminent domain proceedings in an effort to take property acquired by Los Angeles in the early 1900s.

Owens Valley wants to reclaim its history

It is the first time Inyo County has used eminent domain rules against the Los Angeles Department of Water and Power, which owns 25% of the Owens Valley floor, officials said Wednesday.

Unlike previous battles with the DWP that focused on the environmental and economic damage caused by L.A.'s pumping of local water supplies, the county seeks to pay fair market value for property and water rights needed for landfills, parks, commerce and ranchlands along a 112-mile stretch of Highway 395 east of the Sierra Nevada.

“We’re using a hammer the DWP has never seen before in Owens Valley,” Inyo County Supervisor Rick Pucci said. “Our goal is the future health and safety of our communities.”

The move comes after years of efforts by Los Angeles to make amends for taking the region’s land and water. In 2013, for instance, the city agreed to fast-track measures to control toxic dust storms that have blown across the eastern Sierra Nevada since L.A. opened the aqueduct a century ago that drained Owens Lake.

As a gesture of conciliation, the city a year ago erected a $4.6-million monument of granite and sculpted earth that now rises from a dry bed of Owens Lake. It features a public plaza with curved granite walls inspired by the wing shapes of shorebirds. Sculptures of earth and rock have been made to resemble whitecaps like those that graced the lake’s surface before it was transformed into a noxious dust bowl.

L.A. concerns about giving back land

But in Owens Valley, Angelenos bearing gifts have always elicited skepticism, and occasionally sparked eruptions of violence. The aqueduct was dynamited repeatedly after increased pumping exacerbated a drought during the 1920s that laid waste to local farms and businesses.

Inyo County officials see their effort to take back DWP land as an important step in taking back local control.

That worries DWP officials, who acknowledged they were caught off guard by the action.

“This is brand new. It could be a slippery slope and where it would lead us I don’t know,” Marty Adams, chief operating officer at the agency, said. “The county also wants the water rights on certain properties, which could have a cascading effect. We’re very concerned about that.”

The Inyo County Board of Supervisors directed its staff to study the use of eminent domain after the DWP a year ago proposed a fourfold rent increase of more than $20,000 annually at a landfill in Bishop operated by the county on land it has leased from the DWP for decades, Rick Benson, assistant county administrator, said.

The proposed lease included a clause allowing the DWP to terminate the agreement for any reason with a 180-day notice, he said.

After months of heated negotiations, the county approved the new three-year lease agreement in January because, Benson said: “We had no choice.”

“We’re mandated by the state to provide environmentally sound means of disposal,” he said. “But the cost of abandoning that landfill and building and certifying a new one elsewhere would be astronomical.”

Beyond that, he said, the California Department of Resources, Recycling and Recovery refused to renew an operating permit for the landfill until a new lease was in place on the property.

Valley towns struggling to survive

In March, Inyo County Administrator Kevin Carunchio notified the DWP of the county’s decision to condemn that landfill site and two others in the towns of Independence and Lone Pine. That would set in motion legal proceedings that could lead to its taking ownership from the DWP.

A county appraisal concluded a fair market value for the total 200 acres of $522,000, county officials said. On Monday, the DWP declined that offer, saying it had yet to complete its own appraisals.

Some officials are already raising the possibility of mounting crowd-sourcing campaigns to fund additional acquisitions of DWP land for public benefit.

“The county would obviously like more economic opportunities,” the DWP’s Adams said, “and we support that.”

In the meantime, Owens Valley towns — including Big Pine, Independence, Lone Pine and Olancha — struggle to survive, with most of their developable land and water rights controlled by the DWP.

In 1997, the DWP agreed to relinquish 75 acres in the Owens Valley for residential and commercial uses, and the county amended its General Plan to ensure that land exchanges did not result in a net loss of tax base or revenues. Since then, county officials say, lots on only a fraction of that acreage have changed hands because the DWP has tended to set minimum bids far above market value.

In 2009, a group of Owens Valley residents sent a petition to then-Los Angeles Mayor Antonio Villaraigosa and the Los Angeles City Council urging them to force the DWP to compensate for the loss of private land it planned to buy in the region by releasing an equal amount of its own holdings elsewhere. The city never responded, according to activists who helped write the petition.

The DWP has spent more than $1 billion to comply with a 1997 agreement with the Great Basin Unified Air Pollution Control District to combat the powder-fine dust from the dry 110-square-mile Owens Lake bed.

Separately, after decades of political bickering and a bruising court fight, the DWP directed water back into a 62-mile-long stretch of the Lower Owens River that had been left essentially dry after its flows of Sierra snowmelt were diverted to the Los Angeles Aqueduct. But it later balked at removing thick stands of reeds that swiftly choked the renewed river.

The DWP caused an uproar during the drought in 2015 when it gave ranchers 48 hours’ notice of its intention to reduce their irrigation water from the usual 49,000 acre-feet a year to 20,500 acre-feet a year. The agency abandoned the deadline after Inyo County threatened to seek an injunction to stop what it claimed was a violation of long-term water agreements that would devastate the local economy.

Some itching for a fight with L.A.

Farming and ranching generate $20 million a year in rural Inyo County, second only to tourism, officials said.

Jenifer Castaneda, a Lone Pine real estate broker and community activist, had one word to say about the county’s use of eminent domain: “Awesome.”

Castaneda said she only hopes local leaders are ready for a long fight and that they don’t “cave when Los Angeles dangles some kind of big fat carrot in front of their noses."

Water Extremes: Too Little; Too Much; Too Slow; Too Fast

High & Dry

Thunderstorm Gathering at Sunset - Infrared Exposure - Trona, CA - 2010 (photographer about to get drenched) | Photo: Osceola Refetoff

By Christoper Langley
www.kcet.org

The marks of water, and its absence shape the story of human presence in the desert. I have lived in the desert for more than forty years, having been converted to desiccation.

In the desert I suffer from "rain hunger" nearly all the time. When a moisture-laden front makes it over the mountains, it is a gift from the gods, a time for a celebratory walk through puddles. In the Iranian desert, the Sarhad, where my Peace Corps site of Khash is located, it rained once in two years while I was there. It was not much but all the children had umbrellas, which immediately appeared for the short downpour.

The desert suffers from extremes: too little; too much; too slow; too fast. In my hometown of Lone Pine, the summer forecast is hot day after day. The rainiest month is in the winter, often February. However the most exciting rains come in August, or sometimes July, when the monsoonal flows out of Mexico sweep across the dry valleys, filling the air with moisture. We wait for the giant thunderheads, glowing and pulsing with electricity like great translucent jellyfish in the ancient seas that once covered these lands. They pulse and glow over the Inyo Mountains to the east towards Death Valley and the high desert beyond.

The towering cumulonimbus move in, first with the cold winds that sweep down in front of the storm, then with intensifying thunder and finally a downpour that comes in sheets of driving rain. All hell breaks loose in a release from the persistent waiting for the rains that have taken several summer months to arrive.

The thunder shakes everything in front of it. The rain pounds like a stampede of racing feet ever harder and faster. I rush out to see the storm, feel the icy rain on my face. Quickly I am soaked to the skin. Later I stand mesmerized at the front window as the storm obscures the landscape to the east in veils of rain.

Slowly the storm abates. The land falls into a satiated peace. Now the land smells sweet and perfumed, by the wet sage and the more bitter rabbit brush, and invasive Russian thistle. The air has cooled significantly, and there will be a good night's sleep.

Two storms from the past come to mind. First there was the microburst that came on a July afternoon. It had been sultry all day, pregnant with promise, yet still as death. The sky darkened and the heavens let loose an explosion of water for half an hour. Three inches of rain, more than half a year's worth, fell in that thirty minutes. The paved areas gave up the rush. Patios regurgitated water though sliding doors into living rooms. Desert highways flooded with brown water. Large arroyos were cut across the desert as water flowed downhill picking through the hillocks. Those marks are still there. The highway gagged and choked, and silt and boulders were left behind. These are called "debris flows."

What was startling was that if you went a mile north or south of town, it was more like half an inch of rain. Go further and it was dry.

One time a woman drove on the dry Highway 395 as a flash flood built up in the canyons above. The debris flow swept across the pavement without warning. They found her car rolled over and over about 400 hundred feet beyond the pavement, her drowned and abraded body even further away on dry sand.

The desert here suffers from flash brush fires that sweep across the land burning the resin ripe desert plants with brilliant heat. Just after the 4th of July, the Inyo County seat of Independence suffered from one of these fires. Driven by the winds, desultory in their direction, what appeared a controlled fire suddenly raced drunkenly across the landscape. The result was a barren land burned to black ash, hidden roots, and unanchored sandy soil. Add a summer downpour high in the Sierra and it is a recipe for disaster.

A year later, almost to the day, a microburst of clouds shedding tropical water became trapped in a canyon of the Sierra just west of town. A giant wall of water, dirt and boulders rushed down Ask Creek where there were many cabins and houses. Fifteen houses disappeared or were filled with silt waist high. No one drowned although one resident was rolled a while in the cavorting water. The scars remain still from the flash flood that swept across the highway.

Matching the rain that vents its anger against the desert landscape is the rain that doesn't fall to earth. This is virga. It is rain falling in sheets or lines that evaporate before hitting the surface of the earth. Above the virga there is a dark bellied cumulus cloud. Rolling thunder and a flash of lightning announces the forming of virga, but it also comes without a grand entrance.

Virga has a cold heart, often beginning at high altitudes as ice crystals. The falling to earth begins slowly as these crystals slide into thickening air. Compression heating of the air first melts the ice crystals then evaporates them into vapor.

Desert water has many secrets. Most people who die in the desert suffer and die of dehydration. That is the harsh story of the desert water, and its absence. Mary Austin wrote, "To underestimate one's thirst, to pass a given landmark to the right or left, to find a dry spring where one looked for running water - there is no help for any of these things."

We'll tell that tale another day.

High & Dry surveys the legacy of human enterprise in the California desert. Together, writer/historian Christopher Langley and photographer Osceola Refetoff document human activity, past and present, in the context of future development.

Owens Lake as solar power plant?

The DWP seeks to build a 660-acre pilot project on the dry lake bed -- and avoid doing an environmental impact report.

A solar array could mitigate dust at Owens Lake. Currently to help fight dust, the DWP regularly floods the dry lake bed, which attracts birds -- and bird-watchers, as above. (Brian Vander Brug / Los Angeles Times / April 18, 2009)

By Phil Willon
Los Angeles Times

Nearly a century after Los Angeles drained Owens Lake by diverting its water to the Los Angeles Aqueduct, the city now hopes to generate solar energy on the dusty salt flats it left behind.

The Department of Water and Power's board of commissioners Tuesday unanimously approved a renewable energy pilot project that would cover 616 acres of lake bed with solar arrays -- a possible precursor to a mammoth solar farm that could cover thousands of acres.

City utility officials hope that, along with generating power for L.A., the solar panels would reduce the fierce dust storms that rise from the dry lake bed. To comply with federal clean air standards, the DWP must control the dust that has plagued the Owens Valley for decades. Its efforts are part of a $500-million dust mitigation plan.

The solar project still must win approval from the California State Lands Commission, and that may be a difficult task. The commission's executive officer Tuesday said he had serious concerns about the size of the "demonstration" project and the DWP's plans to seek an exemption from a state environmental impact review.

Well aware of the nasty residue left by L.A.'s water grab in the early 1900s, city officials have taken special care to sell the idea to Owens Valley residents. So much water was pumped away from the valley that, afterward, many farmers and ranchers couldn't scratch out a living.

Interim DWP General Manager S. David Freeman traveled to Inyo County before Thanksgiving to meet with local government officials, environmental groups, ranchers and other residents in an effort to sell the solar proposal.

"It's really interesting and exciting, to say the least," said Inyo County Administrative Officer Kevin Carunchio. "Generally, the county has been looking at the potential for renewable energy projects to generate economic activity and fill the county coffers, since mining has been regulated out of business."

To help win over environmentalists, Freeman promised that the DWP would continue its program to flood portions of the lake bed with water to help control dust; the project currently uses enough water to supply 60,000 families. That shallow, ankle-deep flooding has created critical habitat for tens of thousands of migrating waterfowl and shorebirds.

"In general we support that idea. This small test project is in an area of the lake that has some of the least value for wildlife. It's a good area to put a project, to see if you can make it work and fix the dust," said Mike Prather of the Eastern Sierra Audubon Society.

DWP Commissioner Jonathan Parfrey, who serves as director of the Green L.A. Institute, said Tuesday he was "really enthusiastic" about the proposal but counseled DWP executives to keep Owens Valley residents well informed.

"We need to maintain good relations with the environmentalists in the eastern Sierra in order to provide them really strong assurances of the limited scope of this particular project, and an ongoing . . . conversation with them about any expanded projects," he said.

Michael Webster, the DWP's assistant manager of system development and procurement, told the board of commissioners that the agency has tested solar arrays in wind tunnels and determined that the structures, if properly aligned, can work as effective dust control measures.

The pilot solar project would generate an estimated 50 megawatts by 2012, or about 0.5% of L.A.'s energy needs. Mayor Antonio Villaraigosa has vowed to halt the use of coal-burning power plants by 2020 and -- that same year -- generate at least 40% of its energy from renewable resources.

The DWP estimates that the solar pilot project also could save 2,460 acre-feet of water a year -- worth $1.7 million -- because the solar arrays could be used to control dust in that portion of Owens Lake instead of flooding.

Because the State Lands Commission has oversight of the 100-square-mile Owens Lake, the DWP must convince the agency to lease the 616 acres for the pilot solar farm -- and, later, to grant leases for any expansion.

Paul Thayer, the state commission's executive officer, said the agency is willing to discuss "some sort of balance of habitat restoration and solar generation on the lake bed."

But he cautioned that a 616-acre solar farm would be among the largest in California, and DWP's efforts to avoid an environmental review could pose a major obstacle. "We think the project is much too ambitious now, particularly for that kind of environmental review," Thayer said, adding that a smaller project might be more acceptable.

Thayer said DWP officials estimate that Owens Lake has the potential to be developed into a large-scale solar farm: "They envision up into the gigawatt range . . . thousands of acres."

Bones may solve mystery of missing Death Valley tourists

Rental van was found with four flat tires, but searchers never located four German visitors who disappeared in 1996.

By Teresa Watanabe
Los Angeles Times

A 13-year-old mystery involving the disappearance of four German tourists in the sweltering desert of Death Valley may have ended Friday, when authorities announced that bones that may be their skeletal remains had been found.

In a statement, Inyo County Undersheriff Jim Jones said that personal identification belonging to one of the tourists was found near the skeletal remains, which were discovered by two hikers Thursday in a remote area of Death Valley National Park.

The four tourists -- Cornelia Meyer, 28; her 4-year-old son, Max; Egbert Rimkus, 33; and his son, Georg Weber, 10 vanished in July 1996, when temperatures at the park reached 115 degrees. The Dresden residents had been touring the Southwest and had not been seen since signing a visitor register at the Warm Springs area at the southwestern end of the park.

Three months after disappearing, their dark green minivan, which was rented at Los Angeles International Airport, was found in Anvil Spring Canyon. All four tires were flat and tire tracks indicated that the group had driven on shredded tires and bent wheels for about two miles, authorities said then.

Only a beer can and other debris were found near the van.

Although no foul play is suspected, Inyo County sheriff's spokeswoman Carma Roper told the Associated Press that the discovery was being handled as a criminal investigation.

She added that it would take a long time to formally identify the remains and determine the cause of death.

Authorities have searched throughout the years but failed to undercover any further evidence until this week.

Korean Visitor Dies Of Heat Exposure

Mesquite Dunes. (James Gordon)

Death Valley National Park
National Park News

The park received notification that several people were down with heat-related issues at the Mesquite Dunes area near Stove Pipe Wells on the afternoon of Sunday, July 26th.

Rangers were on scene within minutes and found six people at their vehicle who were all displaying symptoms indicating varying degrees of heat exposure. All were South Korean nationals. They told the rangers that another member of their party had collapsed in the dunes and had been dragged into what scant shade was available.

Rangers John Fish, Jennifer Yeager, and maintenance worker Kit Oesterling, with assistance from one of the members of the party, located the woman under a creosote bush and determined that she had expired. She was identified as 52-year-old Sohee Koo. Koo and other members of her group were from a Buddhist monastery; they were traveling together, but not as part of a commercial tour group.

The ambient air temperature at the time was 123 degrees Fahrenheit, with ground temperatures approaching 140 degrees.

The Inyo County Sheriffs Office and the Inyo County coroner were advised of the situation and responded. Group members were triaged and treated at the scene by rangers. Two of them showed symptoms of heat exposure, but refused further medical treatment.

Communications proved to be a challenge because only a few members of the group were able to speak English and cultural protocols required them to communicate through a group elder who did not speak English. Next of kin and South Korean consulate notifications were made by the Inyo County Sheriffs Office with assistance from district ranger John Fish.

Most of the rangers assigned to this mission had to be diverted to a vehicle fire at Towne Pass 13 miles west of the incident scene, leaving Fish and ranger Amber Nattrass to finish patient treatment, investigation and assist with the recovery of Koo’s body.

The Inyo County Sheriff’s Office is the lead agency in this investigation.

Suicide Victim Found Near Ibex Dunes

Ibex Dunes.

National Park News

On Saturday, May 23rd, BLM ranger Dave Brenner found an unattended car on Giant Mine Road just outside the park’s boundary near the Ibex Dunes area in the southeast corner of the park.

A check with dispatch showed that the car belonged to a missing person who was deemed at risk and reportedly armed with a handgun. The Los Angeles County Sheriff’s Department confirmed that the man, 52-year-old David Penn of Lancaster, California, had been missing since April 30th.

Brenner subsequently found Penn’s remains on a rock pile. There was a loaded Sig Sauer P229 40 caliber handgun near the body and only one set of tracks leading to that location, which matched the footwear found on the body.

The Inyo County coroner later determined that Penn had died of a single gunshot wound to the chest. GPS coordinates later showed that the body was approximately 150 feet inside the park boundary.

Penn was reportedly despondent over a recent separation and pending divorce. Next of kin notifications were made by the Inyo County Coroner’s Office. The Inyo County Sheriff’s Department is leading the investigation.

Amargosa River bill will only affect California

By MARK WAITE
Pahrump Valley Times


During very wet periods, the Amargosa River can flow at the surface, as it did in Death Valley during the wet winter of 2005.

The passage in the U.S. Senate of the Omnibus Public Lands Bill of 2009, including the designation of wild and scenic river status for the Amargosa River in California, was like a dream come true for the newly-formed Amargosa Conservancy.

Across the state line, however, Nevada District 36 Assemblyman Ed Goedhart, R-Amargosa Valley, who has seen the influence of environmental designations like Death Valley National Park and Ash Meadows National Wildlife Refuge on water rights applications in Amargosa Valley, sees a possible nightmare.

Goedhart said a "wild and scenic river" conjures up images of people rafting through white water rapids in scenic national parks. The segment of the Amargosa River under wild and scenic river protection extends from four miles north of the Tecopa Hot Springs road, south to just past the Dumont Dunes access road crossing.

"Any time you want to make wilderness, national monuments, wildlife refuges, wild and scenic rivers, it's like dropping a pebble on a pond. These ripples go a long ways," Goedhart said. "It's an expansion of locking people out of not only public lands but also being able to utilize their own property and water rights, such as people in Amargosa Valley."

The legislation reminded him of the Death Valley regional groundwater flow model, which places limits on application for water rights. Goedhart said the area affected by that flow model would measure 20,000 square miles.

Amargosa Valley is being eyed up for solar power projects by companies like Solar Millenium and Ausra NV.

"When Death Valley was changed from a national monument to a national park, that now gives the National Park Service a buffer area where they can protest things being done outside the park borders up to 50 miles away. These types of things, they get increasingly difficult for people to utilize their land and water rights to attract capital, create wealth, produce payroll and pay taxes," Goedhart said.

Brian Brown, a founding member of the Amargosa Conservancy, which was formed as a nonprofit organization in September 2005, thinks those fears are overblown. Brown doesn't see any impact of the legislation across the state line. Instead, he sees benefits to the economy in the Tecopa-Shoshone area.

"Those small businesses that are surviving are doing it on tourism, and what we have to offer is the desert itself. It's a unique area. There's a lot of endemic plants and animals, and this will go a long way toward protecting their water source in that river," Brown said.

The lands bill is expected to be introduced in the House within the next couple weeks. The wild and scenic river designation was one of 160 bills in the Omnibus Public Lands Act introduced by U.S. Rep. Buck McKeon, R-Calif.

Brown said he met with the California delegation during a trip to Washington, D.C., in September, along with other residents of Inyo County.

"It's difficult to examine the scenario where this wild and scenic section might affect something 90 miles away in Beatty. It seems like a stretch," Brown said. "States control their water. That's their job. So this is in California, it's not in Nevada. The people in our area are looking forward to it. We look on it as an asset that will bring more tourism and travel to our area."

Brown said the conservancy is working with the state of California to cut a recreational trail down to the Amargosa Canyon from the China Ranch Date Farm he owns. A 17-mile hiking trail from Shoshone, Calif., to Dumont Dunes, part of it using the rail bed from the old Tonopah and Tidewater railroad, has also been discussed over the last several years, with kiosks, watch towers and other facilities.

"This legislation only affects federal land. It does not affect any private landowners' rights to their land," Brown said. "There aren't a lot of places in the lower 48 where you can get the vistas and quiet solitude like we have here. That has value. The truth is there are other values than an economic one, and those have to weigh into decisions on public land."

Brown said the public lands bill is an attempt to wrap up conflicts over wilderness study areas, enacted by the Desert Protection Act of 1994, which designated the Mojave National Preserve in a wide swath of desert from Interstate 15 to Interstate 40.

McKeon's legislation includes designating 11,000 acres in the Sierra Nevadas as a snowmobile area as well as wild and scenic river designation for places like Cottonwood Creek, just south of Lone Pine, Calif.

Brown said the legislation is written so there are seven different locations where off-highway vehicles can cross the Amargosa River.

The bill will also allow the U.S. Bureau of Land Management to measure the stream flow to prevent large diversions upstream that would lessen the flow through the wild and scenic section.

But Brown said that shouldn't affect users upstream since the Amargosa River doesn't have a lot of water.

Bob Haueter, deputy chief of staff for Rep. McKeon, said the water flow isn't sufficient on the Amargosa River to affect potential users in either California or Nevada.

"It has no impact in Nevada. It doesn't reach Nevada," Haueter said. "There can be no impact outside the area affected."

Table Mountain back in wilderness bill

By Mike Gervais
Inyo Register

With the Eastern Sierra/Northern San Gabriel Wild Heritage Act scheduled to go to the Senate on Thursday, the bill’s co-authors have reincorporated Table Mountain into the mix.

At the request of the U.S. Forest Service, Table Mountain has been added back into the Wild Heritage Act by co-authors Senator Barbara Boxer (D-Calif.) and Rep. Howard “Buck” McKeon (R-Santa Clarita). The addition of Table Mountain, which was removed from the bill earlier this summer as part of a compromise that allowed for the 9,000-acre White Mountain proposed wilderness, has some on edge, as recent maps include several cabins in the proposed wilderness area.

The residents who lease property that includes nine cabins near Table Mountain worked feverishly Monday to contact local legislators and express their concerns about the inclusion of the cabins and the relatively short time-frame in which they had to submit comments.

That work paid off, with the Forest Service reporting Monday afternoon that it was in the process of re-drawing the wilderness map for Table Mountain.

Table Mountain was added to the Wild Heritage Act sometime around July 16, but maps were not made available to the public until the week of July 21 and the U.S. Forest Service, which leases the cabins to private individuals, did not receive the updated maps until last Thursday, leaving only three days for that entity to comment before the Sept. 8 comment deadline.

Those maps showed six or seven private-use cabins inside the wilderness designation. At least three of the cabins that are located inside the wilderness addition are only 50-150 feet from the boundary, which Bishop resident Bob Klug, who leases property and one of the cabins from the U.S. Forest Service, said didn’t follow any geographic or topographical line.

“A friend of mine who owns the pack station showed me the maps on Saturday,” Klug said. “The maps had been changed on the 25th of July, and none of the cabin owners who could be losing their cabins were notified.”

With comments regarding the Wild Heritage Act due Monday, Klug spent a busy weekend tracking down the lease-holders of the eight other cabins in the area to warn them of the comment deadline and encourage them to speak up on the issue.

He was able to speak with Boxer Legislative Aid Tom Bohigian, who said the inclusion of the cabins may have been an oversight. “He tried to reassure me that they have no intent of shutting down anyone’s cabins or any roads,” Klug said. But he added he won’t rest easy until he sees something in writing that protects his cabin.

Klug said that when he contacted McKeon’s staffers, he was told to submit any comments or questions via e-mail.

McKeon Press Secretary Lindsay Mask, however, told The Inyo Register that the inclusion of the cabins “was a mapping error. Mr. McKeon is 100 percent aware of it, and private land will not be included.”

“The remapping they’re having done right now excludes the cabins, the water systems and the electrical,” said U.S. Forest Service Public Information Officer Nancy Upham.

There has been much discussion regarding the inclusion or exclusion of Table Mountain since the Wild Heritage Act was proposed in June. The scenic area was initially proposed as an addition to the bill, then tabled in favor of 9,000 acres of wilderness in the White Mountains, then ultimately included in the wilderness in July at the behest of the U.S. Forest Service.

“During the meetings in Bishop (held in early July to gather citizen input about the Wild Heritage Act) they had dropped Table Mountain from the wilderness to appease the anti-wilderness people,” said Klug.

“Table Mountain was an area that was added in later on a Forest Service recommendation,” said Paul McFarland of the Friends of the Inyo. “We certainly didn’t push to have anyone’s cabin included in wilderness,” he added, speaking for the Friends.

McFarland said the inclusion of the cabins could have been an easy mistake to make.
“Things like this are going to come forward more and more, and they need to be changed,” said McFarland.

If the Wild Heritage Act was passed into law including the Table Mountain cabins, the dwellings would have most likely been taken over by the Forest Service.

“Historically, you cannot have a private dwelling in the Wilderness,” Klug said.

According to McFarland, “I don’t know if there are any leased cabins in wilderness, but I do know there are ranger cabins.”

Phone calls seeking comment from Boxer’s staffers and the Advocates for Access to Public Lands were not returned as of press time Monday.

Members of the Inyo County Board of Supervisors were unavailable for comment on Monday, as they were in budget hearing meetings.

New wilderness proposals for Inyo

By Mike Gervais
Inyo Register

Senator Barbara Boxer and Congressman Buck McKeon, co-sponsors of the Wild Heritage Act, aren’t the only legislators who see the potential for additional wilderness in Inyo County, despite promises that the controversial wilderness designation would be the last requested within Inyo County.

Senator Dianne Feinstein is looking at several new wilderness designations in Southern Inyo that top officials are saying would hinder potential revenue sources, job opportunities and recreation in the area.

Feinstein’s office received a request by the California Wilderness Coalition seeking several new wilderness designations in Southern California, five of which are proposed for Inyo County’s Fifth District, including areas of Death Valley.

Feinstein’s staffers brought the proposals before Fifth District Supervisor Richard Cervantes, earlier this month.

The five new wilderness proposals include the Great Falls Basin Wilderness located near Trona on the southeast side of China Lake Naval Weapons Station, the Malpais Mesa proposed wilderness addition on the west side of Death Valley National Park, the Slate Range proposed wilderness just west of the Great Falls Basin proposal, and two wilderness additions within Death Valley National Park, one of which includes the area around the Ubehebe Crater, but does not include the crater itself.

The board decided Tuesday to review the wilderness proposals and draft a response to Feinstein. First District Supervisor Linda Arcularius said she was grateful that Feinstein’s staffers discussed the proposals with the board before drafting legislation.

“She has only been requested to do this, and she has not agreed to carry any legislation,” which gives the county the opportunity to work with the legislators to be sure the county’s needs are met before legislation is drafted.

Arcularius mentioned that the board did not have that opportunity with the Wild Heritage Act which aims to create the Eastern Sierra/ Northern San Gabriel Wilderness.

The board agreed to review the wilderness proposals and outline its concerns and send a response to Feinstein.

“Our first concern is that these proposals don’t fit the definition of wilderness” as defined in the 1964 Wilderness Act, said Fourth District Supervisor Jim Bilyeu. “The second is mining,” he said, adding that the areas described for the proposed wilderness are rich in mineral resources, have current mining claims on them and/or companies researching the possibility of opening mining claims.

Supervisor Cervantes brought up several concerns about mining in Inyo County and the negative effects the proposed wilderness could have on the industry. “This is about economic opportunities for Inyo County being locked up,” he said.

The proposed Malpais Mesa wilderness area includes an area where Timberline Resources is conducting an exploratory survey in hopes of opening a mine in the area “which would open up the potential for income for the county,” the Fifth District Supervisor said Tuesday.

There is also a study group conducting research in that same area in hopes of finding a location for a geothermal plant, Cervantes added.

If the wilderness designation is pushed through, the area would be off-limits to mining and industry of any kind, including a geothermal plant.

Cervantes called the latest onslaught of wilderness proposals a “nefarious plot” by environmentalists to outlaw mining in Inyo County’s mineral-rich areas.

Cervantes also mentioned that the Slate Range Wilderness Range near Panamint Valley is the site of the Briggs Mine and the Ratcliff mine.

He also said the Briggs Mine, which supports 120 jobs when it is operating, is completely out of sight of the public, and does not spoil the scenic desert views of Southern Inyo.

Cervantes said the same of the Great Basin proposed wilderness. “That particular area is a high mining area,” said Cervantes. He added that Feinstein’s staffers are also saying that the Great Falls Basin proposed wilderness area “would provide a buffer zone for the (China Lake) naval base. But everybody who’s been out there knows that you can’t wander onto the base without knowing about it, there are signs everywhere.”

“That buffer thing doesn’t hold water,” he added, and the other supervisors agreed.

Second District Supervisor Susan Cash noted that wilderness designations, according to the 1964 Wilderness Act, are not designed to provide “buffer” zones for military instillations, but to protect “unchanged and unspoiled” areas. She also said many of the areas don’t fit the description of “unchanged and unspoiled.”

“This has nothing to do with protection, it has everything to do with numbers,” said Third District Supervisor Beverly Brown, noting that the Ubehebe Crater is an area she could see being protected as wilderness, but not the surrounding desert area that is being considered for the protection.

“My position is that I don’t support any additional wilderness designation unless it fits the 1960s definition,” which says the designated land must be “unspoiled,” Bilyeu said.

Phone calls to Senator Feinstein’s office seeking comments on the proposed wilderness designations were not returned.

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.

Inyo County supervisors slam wilderness bill

By Mike Gervais
Inyo Register

Elected officials from Inyo County responded to the controversial Eastern Sierra and Northern San Gabriel Wild Heritage Act by declaring that the newly introduced legislation does not, in fact, contain any notable compromise.

The five members of the Inyo County Board of Supervisors all agreed Tuesday that some crucial language in the Eastern Sierra Northern San Gabriel Wild Heritage Act, which intends to designate 400,000-plus acres of Eastern Sierra lands as wilderness, must be changed to protect the rights of property owners and commercial business owners.

The board is also seeking to gather input from residents, and has scheduled two tentative public meetings with representatives of both Congressman Buck McKeon and Senator Barbara Boxer, the act’s sponsors, in attendance. The board also expressed hopes of having a representative from Senator Dianne Feinstein’s office on hand as well.

The first meeting is tentatively scheduled for Tuesday, July 1 at the American Legion Hall in Independence and the second for Wednesday, July 2 at the Tri-County Fairgrounds in Bishop. Both are scheduled to take place at 4 p.m.

Prior to scheduling the public meetings, the supervisors took the opportunity to air their grievances, and share some unflattering words for McKeon and Boxer’s legislation.

Fifth District Supervisor Richard Cervantes called the new wilderness bill “short-sighted at the least and irresponsible at worst.”

According to Fourth District Supervisor Jim Bilyeu, the legislation, which is being hailed by conservationists and its supporters as a triumphant compromise, “There is very little compromise in this bill, which I think is the downfall. I personally feel it was underhanded.”

McKeon (R-Santa Clarita) is the sponsor of House Resolution No. 6156, with a companion wilderness bill in the U.S. Senate being introduced by Boxer (D-California). The two legislators had been working on their respective bills in unison of late, in an effort to gain bipartisan support for their passage in both Houses of Congress.

The two bills seek permanent wilderness status for tracts identified as the White Mountain Wilderness, Hoover Wilderness Additions, the Granite Mountain Wilderness, John Muir Wilderness Additions, the Owens River Headwaters Wilderness, the Pleasant View Ridge Wilderness, the Magic Mountain Wilderness, as well as waterway protection status for the Amargosa Wild & Scenic River, the Owens Headwaters Wild & Scenic River, and the Piru Creek Wild & Scenic River.

First District Supervisor Linda Arcularius drafted a lengthy letter to Congressman McKeon explaining her concerns regarding the wilderness legislation.

The other board members commended Arcularius for her letter, and Supervisor Bilyeu even requested that in addition to it being sent with Arcularius’ signature, the board make a couple amendments to it, and send that copy to McKeon “under the full authority” of the Board of Supervisors with the county letterhead and signatures from all five board members.

Among the supervisors’ grievances is the possibility that the areas omitted from the legislation, as part of the “compromise” for multiple-use advocates, are not protected from future wilderness designations.

“The lands that have not been designated wilderness have gained no protection for their current uses,” the letter from Arcularius states. “Those lands that were not designated have no permanent protection. They have only escaped this round of wilderness designation.”

“There is no protection for these other lands,” no guarantee that they will remain open to the public, Bilyeu said.

According to Arcularius, state representatives also have an obligation to rethink provisions in the legislation that prohibit new claims or mining.

Cervantes commented that, with the rising cost of metals and minerals, Inyo County could possibly cash in on new mining claims, as areas of the White Mountains are rich in such minerals, but the Eastern Sierra and Northern San Gabriel Wild Heritage Act has the potential to limit that.

Arcularius’ letter further states that “the strength of this nation is in the ground. Our natural resources have provided for the ability of our nation to grow and prosper since our nation’s founding. They have contributed to our wealth, self-reliance and sustainability as a nation.”

The board also discussed how the new legislation could potentially steer would-be recreators away from Inyo County.

Bilyeu noted that it is illegal to stock non-native fish in wilderness areas. He also said that in some cases, streams, creeks and other waters flowing out of designated wilderness are off-limits for stocking, as the non-native fish may swim up-stream into the wilderness area.

According to Cervantes, many of the areas designated as wilderness in the Wild Heritage Act don’t technically qualify as wilderness. The supervisors explained that wilderness designations were originally designed to protect “unspoiled” areas never before used by humans.

“Not by the wildest stretch of imagination does this fit the definition of wilderness,” Cervantes said, noting that humans have used the areas outlined in the legislation for years for recreation.

“By designating wilderness that does not meet the true meaning of the definition of wilderness, the truly unique and special characteristics that set wilderness apart from our other public lands is diminished,” the letter from Arcularius states.

While the Inyo County Board of Supervisors was discussing the Wild Heritage Act on Tuesday, its counterpart in Mono County hosted a public hearing in Lee Vining with representatives from Feinstein, McKeon and Boxer’s offices.

The Inyo County supervisors are hoping to bring all those people to the table again in Inyo so the representatives can hear the concerns of constituents here.

“A public meeting to address this is important and imperative,” Arcularius said.

Bipartisan support for wilderness bill

By Ken Koerner, Staff
Inyo Register

U.S. Congressman Buck McKeon shares details of his wilderness legislation during a press conference in Bishop on May 23. Photo by Ken Koerner


Under bipartisan legislation recently introduced in both bodies of the U.S. Congress, more than 400,000 acres of wilderness in Inyo and Mono Counties and 45 miles of the Owens River Headwaters and Death Valley’s Amargosa River could have their wild heritage preserved.

In addition, there could also be another 40,000-plus acres of wilderness and several more miles of “wild and scenic river” protected in the northern San Gabriel Mountains in the Santa Clarita and the Antelope Valleys of Southern California.
During a press conference held Friday afternoon at the Eastern Sierra Regional Airport in Bishop, 25th District U.S. Congressman Buck McKeon announced the introduction of his House Resolution No. 6156 bill, written to provide this conservation protection.

“I am pleased that after years of working with local leaders, wilderness activists and recreational enthusiasts, we finally have a practical solution to preserving the wild heritage of the 25th Congressional District,” McKeon said. “I also want to thank Senator (Barbara) Boxer for playing such a critical role in crafting legislation that meets the needs of all the key stakeholders. With this legislation, we are increasing economic development by preserving land treasured by many and enhancing recreational opportunities in the area.”

Addressing the companion legislation that Boxer has introduced in the U.S. Senate, McKeon acknowledged that their sometimes “divergent” political perspectives did not impede their ability to forge a successful alliance to further this shared agenda.

“Working with Senator Boxer on this has really been encouraging. I feel that together we’ve achieved more than either of us may have initially anticipated would be possible,” McKeon said. “Barbara really wants to make sure that this bill will move forward and that we can accomplish this important goal for our constituents – and all those that visit this remarkable area.”

For her part, Senator Boxer’s office has released a statement mirroring her sense that a genuine consensus has guided this legislative effort.

“I am thrilled that Congressman Buck McKeon and I, together with countless local officials and residents, were able to forge a bipartisan compromise to protect these truly spectacular lands,” Boxer stated. “From the majestic High Sierra to the stunning White Mountains and their ancient Bristlecone Pine forests, to the beautiful northern San Gabriel Mountains, Californians will be able to enjoy this striking beauty forever. We will continue to work together to make sure that this natural legacy can be left to our grandchildren and their grandchildren.”

Boxer and McKeon’s Eastern Sierra and Northern San Gabriel Wild Heritage Act legislation will, if enacted, give wilderness designations – the highest level of protection and conservation for federal lands – to a total of 472,803 acres of public federal lands and 52 miles of wild and scenic rivers.

The tracts of public lands to be provided protection under the proposed legislation includes, according to an informational packet handed out by the California Wild Heritage Campaign:

• White Mountain Wilderness: America’s largest and highest desert mountain range, which contains the largest expanse of alpine tundra in western North America, the highest peak in the Great Basin, the second largest “unprotected roadless area” in the lower 48 states and is home to world’s oldest living trees, the ancient Bristlecone Pines.
  
• Hoover Wilderness Additions: The northern Hoover Additions (“west” and “east”) includes 12 miles of the Pacific Crest National Scenic Trail and the headwaters of the West Walker River. The southern portion, mostly high plateaus rising above the west shore of Mono Lake, is home to a reintroduced population of the endangered Sierra Nevada bighorn sheep.
  
• Granite Mountain Wilderness: East of Mono Lake, Granite Mountain is a varied landscape that contains sage grouse, deer migration corridors, raptor nesting sites and wild horses.
  
• Owens River Headwaters Wilderness: More than 100 seeps and springs form the headwaters of the Owens River, just east of the San Joaquin ridge between Mammoth and June Lakes. Considered the most important Eastern Sierra river system, the area includes Glass Creek Meadow and the region’s largest old growth red fir forest.
  
• John Muir Wilderness Additions: The legislation would move the current wilderness boundary down from the crest to include more of the steep Eastern Sierra scarp.
  
• Pleasant View Ridge Wilderness: This area is located south of Palmdale/Lancaster on the north slope of the San Gabriel Mountains and includes 8,200-foot Mt. Williamson and the headwaters of Little Rock Creek.
  
• Magic Mountain Wilderness Noted as a “scenic backdrop to the Santa Clarita Valley, Magic Mountain’s chaparral-covered hillsides and live oak canyons drain into the Santa Clara River.”
  
• Amargosa Wild & Scenic River: The only river flowing into Death Valley, the Amargosa supports more than 280 bird species, including several which are identified as threatened or endangered.
  
• Owens Headwaters Wild & Scenic Rivers: The Owens River headwaters include Glass Creek, Deadman Creek and Big Springs, supporting one of America’s most noted and popular trout fisheries.
  
• Piru Creek Wild & Scenic River: Located northwest of Castaic, Piru Creek is one of the few year-round catch and release trout fishing streams in southern California.

According to information provided by both McKeon and Boxer, their bills, drafted to cover the above areas, have resulted from a unique collaborative effort based upon input from local community leaders, leading conservation groups, sportsmen, public lands access advocates and business owners.

Representative McKeon stated that he has been working to preserve and enhance recreational opportunities in the Eastern Sierra with these stakeholders since his election to office in 2001. With this bipartisan effort moving on parallel tracks in both bodies of Congress, he anticipates that such efforts will now be rewarded.

“I think she (Sen. Boxer) can definitely get this done (passage of her bill in the U.S. Senate) over there,” McKeon said, “and I think we can certainly get it done in the House.”

McKeon also noted his confidence that the joint effort will culminate in gaining support from the White House.

“I think that President Bush will clearly see the value in this shared bill for our District,” said McKeon, “and I absolutely believe I will gain his support in signing this well-designed legislation.”

McKeon, noting his recent successful interaction with the President, said, “I’ve been in the Oval Office on a couple of recent occasions, to witness President Bush signing bills into law that I’ve worked on just as hard – and for which I felt equally committed to their value.”

Control over roads in wilderness now a court issue

BY ARTHUR O'DONNELL
LAND LETTER

While Utah and Alaska have been in the forefront of local attempts to assert broad rights-of-way on roads that lie within the boundaries of federal lands, two cases in California appear to be the next front in the ongoing skirmish over the effects of a Civil War-era law.

In the latest action, a federal judge ruled last week that a group of environmental advocates must be allowed to intervene in a case brought against the National Park Service by California's Inyo County. The county's suit is seeking "quiet title" to four roads within federal lands near Death Valley National Park.

In another case, San Bernardino County officials are similarly seeking access and control over 14 roads and spurs, covering about 240 miles in the Mojave National Preserve. These cases join more publicized actions by Utah officials to claim control over roads and highways in various federal lands (Land Letter, June 7).

Enacted as part of the Mining Act of 1866, now known as Revised Statute 2477, this was a relatively simple measure that afforded public rights-of-way through public lands that were not specifically reserved for public uses. Its purpose was to encourage the local construction of roads and highways as the nation was undergoing tremendous growth and westward expansion.

Though R.S. 2477 was repealed by Congress in 1976, there was left behind a grandfathered provision covering rights-of-way on roads that counties or other jurisdictions could prove were built or maintained as part of the local highway system.

There were differing standards. BLM had a stricter requirement for proof, for instance, while under Utah law the state and counties claim road ownership by showing 10 years of continuous use prior to 1976.

The issue became even more complicated following a 2005 ruling from the 10th U.S. Circuit Court of Appeals, which upheld Utah's interpretation of what constitutes local control over a road in question. As one of her last acts before leaving office, former Interior Secretary Gale Norton issued a guidance memo to agencies that spelled out a broader policy approach that would essentially accept states' and local governments' claims over roads (Land Letter, March 23, 2006).

Prospectors, settlers and ORVs Environmentalists fear the order makes it easier for localities to perform widespread, landscape-changing highway maintenance and construction on public lands, possibly leading to rights-of-way claims in national parks, wildlife refuges, national monuments and wilderness areas.

More recently, Colo. Rep. Mark Udall (D) has proposed an amendment to the 2008 Interior appropriations bill that would prevent local or state governments from claiming federal lands under R.S. 2477 (E&E Daily, June 14).

In fact, the standards being proposed by California counties in their suits appear even broader than those asserted by Utah in its successful challenge. Under California law, stated the San Bernardino suit, "the acceptance of R.S. 2477 right-of-way could be established by public use without formal action by any public agency."

Almost any local action, including use, public repair, depiction of the road on public maps, or inclusion in the county highway maintained road system, would suffice, San Bernardino argued in its complaint filed in U.S. District Court against Interior last Oct. 26 [County of San Bernardino v. USA; CV 06-1179 VAP].

Up until the creation of the Mojave National Preserve in 1994, the county claims, the Bureau of Land Management did not require any notice of highway maintenance or construction, but once the preserve was formalized and turned over to the National Park Service, "NPS has restricted access to materials required for maintenance and ... assumed regulatory responsibility on the roads without county input or approval."

The county's claim covers 14 roads or sections totaling about 241 miles. "These are roads that the county has been maintaining, some before the turn of the century," said Mitchell Norton, deputy county counsel. "These are not trails like is Death Valley. Almost all are paved. Nobody is blazing new trails here."

Norton and colleague Charles Scolastico told Land Letter that they expect to enter mediation with the federal agencies to try to reach an agreement before the case comes to trial.

In contrast, the Inyo County case looks to be setting up a court fight that will involve the various agencies as well as a group of non-government organizations. The Inyo complaint describes four relatively short and remote sections of road — the longest being 18 miles — that is historically connected to long-abandoned mining sites at Greenwater.

In three instances, the county claims, NPS siad the roads were part of the Death Valley Wilderness and it closed the roads and put up signs to that effect. "These roads were part of a network of roads that enabled prospectors and settlers to explore and establish communities in the eastern section of the county at the beginning of the twentieth century," wrote the county. "These roads have existed for generations as a cultural and recreational heritage for citizens of Inyo County and of the region. The county has a unique and independent responsibility to preserve this heritage into the future," it further explained to the court.

Charlie Callagan, a park ranger at the Death Valley National Park, explained that at least one of the contested roads, called Padre Point, a half-mile gravel spur to a view point, was at one time mistakenly mapped within the boundaries of the wilderness area. However, the dead-end strip "is not closed and we have no intention of closing it," he said.

There were three other roads: about half of the 17-mile-long Petro Road, which accesses Native American petroglyph sites; 3 miles of Lost Section, south of Greenwater area; and the Last Chance Road and trail, have been closed because they are part of designated wilderness, he said. The 8 miles of Last Chance right-of-way being claimed by the county never had a road, he said, but includes a hiking and cattle path.

This issue of local governments taking title to dusty trails as if they were developed highways has become a core issue for conservationists and environmental groups. In some areas of the West, local officials have declared R.S. 2477 rights of way over undeveloped trails in wilderness areas and through private lands, leading to numerous court cases, such as the high-profile fight over off-road vehicle use at the Grand Staircase/Escalante National Monument in Utah.

Trails to highways?

That same fear is at play in the Death Valley case, and this month a coalition of six groups, including the Sierra Club, Wilderness Society, the Center for Biological Diversity, and the National Parks Conservation Association, successfully petitioned the court to intervene in the case.

In a June 14 ruling, District Court Judge Anthony Ishii ruled that the groups have a substantial interest in the case, even though they do not assert any ownership rights over the properties in question [Inyo County v. Interior; U.S. District Court; No. CV F 06-1502 AWI]. What is at stake is not merely title to the contested land, Ishii wrote. "The action also seeks to settle rights to particular uses of the land, substantially influencing the character of surrounding land vis-a-vis the land's wilderness designation," he wrote. The action could involve giving the county the right "to convert what is currently a pedestrian trailway devoid of motorized traffic into a two-lane rural highway." Because the groups have actively advocated establishing the wilderness areas in the first place, including the blockage of rights-of-way in order to enhance wilderness values, and the suit seeks to "undue precisely what the proposed intervenors worked to accomplish," Ishii held that the groups have shown their "substantial protectable interest" in the litigation.

The ruling was hailed by the groups. "Inyo County's land grab could undermine the very reasons Death Valley is such an iconic landscape," said Ted Zukoski, an attorney with Earthjustice representing the groups. "The court understood that and understood that those with the strongest interest in protecting Death Valley should have a seat at the table."

"The county is making claims within the wilderness area, and in this instance, it's a direct threat to the wilderness designation," said Kristen Brengle of the Wilderness Society. "If a claim is going to hurt protected land or land that should be under protection, we're going to get involved," she said.

Deborah DeMeo, program manager for NPCA, said her group is committed to balancing interests for recreation in parkland, including allowing off-road vehicles where appropriate. However, in this case, "It's not appropriate for them in wilderness lands with a quality of quiet. Our concerns have more to do with the upsetting of the ecosystem," she said.

Inyo County attorneys were unavailable for comment this week. A status conference in the matter is expected later this summer.

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.

Off-Roaders Fight Ecos for Calif. Canyon

Off-roaders fight environmentalists over surprising canyon near California's Death Valley

By GILLIAN FLACCUS Associated Press Writer
CBS News [New York City, NY]

BALLARAT, Calif., Dec. 17, 2006 (AP) Whoever named Surprise Canyon got it right. Mere miles from bone-dry Death Valley, the canyon cradles two unexpected jewels: a gushing mountain stream and what's left of a once-bustling silver mining town.

These treasures have attracted visitors for decades _ and now they're at the heart of a legal battle between off-road drivers and environmentalists.

Five years ago environmentalists successfully sued to get the narrow canyon and its spring-fed waterfalls closed to vehicles, arguing that the federal Bureau of Land Management was not carrying out its duty to protect the land.

In response, more than 80 off-roaders purchased tiny pockets of private land at the top of the canyon, and now they're suing the federal government for access to their property, arguing that the canyon is a public right of way.

It is one of several recent cases that could unlock thousands of miles of roads in federally protected parks around the West.

The fight over Surprise Canyon boils down to whether the rights of private property owners trump the protection of a fragile oasis on public land. The off-roaders have dusted off a Civil War-era mining law that places the public access rights of local governments and private individuals above the rights of the federal government.

Environmental groups allege that, before they won protection for the area in 2001, off-roaders destroyed the canyon by cutting trees, dumping boulders in the water and using winches to drag their Jeeps up the waterfalls. They are seeking to intervene in the off-roaders' lawsuit.

Since 2001, the canyon has regenerated, with new vegetation attracting wildlife.

"It's almost unbelievable what's up there. It's precious, it's pristine," said Tom Budlong, an activist who regularly hikes the canyon about 200 miles northeast of his Los Angeles home. "I shudder to think of the extreme four-wheelers getting back into the canyon and making a road where there is now no road.

"Once there was a road _ a 130-year-old gravel route that flash floods washed away nearly two decades ago. Off-roaders continued driving up the rugged canyon stream bed to reach the ghost town of Panamint City, which has easily explorable mine shafts, the remains of a smelter, some mine carts and a few cabins.

The canyon grows from an arid plain just north of the one-house desert outpost of Ballarat and climbs 3,700 feet over five miles to Panamint City, inside Death Valley National Park. Most of Surprise Canyon is outside the park boundary.

Flycatchers flit among thick stands of willows and cottonwood trees that crowd along the stream. Less common birds have been spotted since the area was closed to vehicles, notably the endangered Inyo California towhee, said Chris Kassar, an Arizona-based biologist with the Center for Biological Diversity. Other sensitive species such as the Panamint daisy and the Panamint alligator lizard also are flourishing, she said.

Kassar and others believe the canyon's ecosystem could crumble if the off-roaders prevail in their lawsuit, filed in August.

The off-roaders argue that, under an 1866 mining law, the canyon still is a public right of way even though the road is long gone.

"The issue is not off-roading and environmental issues. The legal issue is access," said plaintiffs' attorney Karen Budd-Falen. "If the road was once there and it's eroded out it's still a public access. The fact that it has been flooded out doesn't make the legal issue go away.

"Similar arguments are being used in right-of-way lawsuits elsewhere in the West.In 2004, San Juan County in Utah sued the National Park Service, claiming a creek in Canyonlands National Park was once a county road. Environmental groups have sought to intervene in that case, which is before the 10th U.S. Circuit Court of Appeals.

Inyo County recently sued the same agency over four dirt roads in Death Valley National Park, and San Bernardino County sued over 14 roads in the Mojave National Preserve. Both suits allege the roads were county property before the federal government closed them.

Off-roaders say they just want to visit their property and explore the ghost town."I respect what was there and I want it to be there for my kids to see," said Dale Walton, a member of the Bakersfield Trailblazers off-roading club and a property owner.

"I resent people who go in and destroy things, but I resent more people that say 'You just can't go in there because we don't want you to go in there,'" he said.

Will Surprise Canyon remain off limits to off-road drivers?

Four-wheel-drive enthusiasts want to reopen the wild road, but environmentalists say no. The fight over the state road is in federal court.


By Lee Romney, Staff Writer
Los Angeles Times

Five years after it was temporarily closed to off-road enthusiasts who winched their vehicles up its limestone waterfalls, a coveted canyon on Death Valley National Park's western edge has been reclaimed by nature's hand.

Thick willow groves have erased nearly all traces of the washed-out road that once pointed extreme sportsmen to the ruins of a onetime silver boom town. Bighorn sheep appear with greater frequency, conservationists note, and the endangered Inyo California towhee has returned.

But the battle for Surprise Canyon, home of the longest year-round stream in the Panamint Range, has revved up a notch: More than 100 four-wheel-drive aficionados determined to see their prized run reopened have filed a lawsuit in federal court that is being closely watched throughout the West.

The claim relies on a Civil War-era mining law that allowed counties and states to lay routes over federal land. Although the statute, known as RS 2477, was repealed three decades ago, routes established before then were allowed under a grandfather clause. A gravel toll road in Surprise Canyon that fell into public hands before succumbing to flooding is such a route, the lawsuit contends.

Battles over what routes qualify have intensified in recent years across Utah and other Western states, as emboldened counties, off-road enthusiasts and private landholders seek to wrest from federal hands thousands of old rights-of-way, rutted vehicle trails and even cattle paths.

But the Surprise Canyon claim — which demands that the Bureau of Land Management and National Park Service immediately reopen the canyon to vehicles — appears to be the first federal court fight over a California route.

Since the Surprise Canyon suit was filed in late August, Inyo and San Bernardino counties have filed separate RS 2477 federal court claims that assert local control over 18 other routes.

Six environmental groups are seeking to intervene in the Surprise Canyon case, hoping to see the canyon permanently closed and to weigh in on the antiquated statute.

"This is a law that was passed a year after Lincoln was assassinated and repealed 30 years ago, and its dead hand is still haunting the protection of our national parks," said Ted Zukoski, a Denver staff attorney with Earthjustice, which is representing the environmental groups. "What they are attempting to do is to undermine protection for these beautiful wild areas."

Although Utah "has really been the epicenter of this debate," Zukoski added, "it certainly seems like the California desert is becoming another area where there's a tremendous amount of pressure on this issue."

Brian Hawthorne of the Idaho-based Blue Ribbon Coalition, which represents off-road enthusiasts, said the disputes are real and must be resolved to clarify where vehicles are permitted.

Hawthorne said he'd prefer to see the conflicts settled outside court: A New Mexico congressman last month proposed legislation that would allow states or counties to gain title by producing any official map or survey made before 1976. But Hawthorne conceded that passage was unlikely.

"We are looking at a monumental battle over each and every one of these roads," said Hawthorne, whose group has not taken a stance on Surprise Canyon.

Built in 1874, Surprise Canyon Road carried miners to Panamint City. Constant washouts prompted regular rebuilding. But a 1984 flash flood wreaked havoc that no one chose to counter.

Then, in 1989, hard-core off-road enthusiasts stacked boulders and pruned back willows to clear a path for their tricked-out machines, forging a route that at times took them directly through the stream bed and — with the help of steel winch cables — up its seven slick waterfalls. (The road had previously covered the stream, pushing it underground in places, before flooding stripped the canyon to bedrock.)

The California Desert Protection Act in 1994 placed the upper portion of Surprise in Death Valley National Park and designated the Bureau of Land Management portion below as wilderness. But Congress excluded a narrow strip of land around the washed-out road. That made it legally open to off-roaders, and the canyon's cachet grew.

Critics of the riders say they destroyed sensitive riparian habitat of the Panamint daisy and Panamint alligator lizard and spilled oil, gas and antifreeze in the water. The riders counter that they maintained the ghost town buildings and regularly hauled out trash. They also point out that the road had been host to a steady stream of cars for decades.

Off-road use came to a halt in 2001 when, as the result of a settlement in a broader lawsuit filed by the Center for Biological Diversity, the canyon was temporarily closed pending a detailed joint environmental review by both federal agencies. (The current lawsuit demands that the canyon be reopened regardless of the review.)

The 2001 settlement noted that the smattering of property owners up the canyon would be exempted and could request a key to the gate barring access to the road. To the off-road winchers, that smelled like an opportunity.

"What would you do if you wanted to get up there?" asked Joe Stocker, 70, a retired millwright who made dozens of canyon winch runs and is a plaintiff in the new case. "You'd buy land up there."

One property owner sold — to off-road enthusiasts who formed two land partnerships at the heart of the current case. But the Ridgecrest field manager of the Bureau of Land Management denied keys to the new property owners, saying that their access "would result in appreciable disturbance or damage to federal lands and resources." Each was invited instead to apply for a permit. One owner did, to no avail.

The suit demands that the agencies process that application if the RS 2477 claim is not upheld.

With the gate still locked, the new owners turned to RS 2477. The lawsuit was filed in the District of Columbia on Aug. 31. Environmental groups filed a motion to intervene earlier this month.

"The canyon's dramatic recovery," they wrote, "could be short-lived if it is again opened to motorized use."

Consequences could be broader: Counties across California and elsewhere have for years passed resolutions claiming control of roadways under RS 2477. They have also filed claims with federal agencies that control the underlying land. But an appellate court ruled last year in a Utah case that only courts could determine the validity of such claims.

The ruling also said courts should look to state law to determine what qualifies as a road under the statute. Utah requires continuous use for a decade. Colorado and other states have much weaker definitions. The Surprise lawsuit may shed some light on the law here.

"It may answer a question in California: What is a road?" said Karen Budd-Falen, a Wyoming lawyer retained by the off-roaders.

Zukoski, of Earthjustice, said he believes only states and counties have the right to bring RS 2477 claims. But Budd-Falen argues that under California law, public use alone can create a road, without a formal county designation. That means, she says, that the public can also file the claim. A court determination that her clients are entitled to sue could set a precedent, she said.

A Bureau of Land Management spokeswoman in Sacramento said the agency could not comment on the lawsuit but confirmed it is the first RS 2477 court action against the bureau in California.

Alan Stein, deputy district manger for resources at the bureau's California Desert district office, said the designation of a right-of-way would leave open many questions about its scope, how it should be maintained and who gets to decide. "None of it is simple," Stein said.

The National Park Service, meanwhile, finds itself facing three such federal court challenges, two filed by counties last month in California. San Bernardino County's suit asserts a claim to 14 roads in the Mojave National Preserve, placed under federal control 12 years ago by the California Desert Protection Act.

The county maintained the roads, some of which are paved, and relies on them to provide services to residents, said San Bernardino deputy county counsel Charles Scolastico.

Inyo County's suit claims four longtime "county highways" that are now un-maintained dirt roads in Death Valley National Park. Two have been closed — illegally, Inyo County claims.

All roads are in wilderness protected under the 12-year-old desert act.

What the county wants to do with the roads is beside the point, said Ralph "Randy" Keller, Inyo County assistant counsel.

"State law says only the supervisors can close a county highway," he said. "They are county roads under county control and, without even consulting the county, they've been taken. It comes down to an issue of local control."

National Park Service West Coast spokeswoman Holly Bundock said she could not comment on specific litigation, but she added: "We don't invite vehicle access in wilderness areas because that's fundamentally in conflict with the Wilderness Act and our policies on managing the Wilderness Act."