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.

California state parks director resigns amid $54 million scandal

California State Parks Director Ruth Coleman resigned. (AP Photo/Rich Pedroncelli) 

By Matthew Renda
Tahoe Daily Tribune

GRASS VALLEY, Calif. — The director of California's state parks resigned and a deputy was fired Friday after officials learned the department sat on nearly $54 million in surplus money for years, while parks were threatened with closure over budget cuts.

Parks Director Ruth Coleman stepped down, and chief deputy Michael Harris was let go, amid questions about the underreported funds dating back 12 years, according to Clark Blanchard, a spokesman for the secretary of the Natural Resources Agency, which oversees the parks department.

Local officials expressed a mixture of outrage and astonishment at the news that the parks department intended to close 70 parks to save $22 million over two years while reportedly sitting on reserves of more than twice that amount.

“You don't go around coercing community groups and nonprofits to solve your problems while you're sitting on reserves that size,” said Caleb Dardick, executive director of the South Yuba River Citizens League, which has taken a leadership role in raising awareness and funds to keep open two Nevada County parks — Malakoff Diggins State Historic Park and South Yuba River State Park.

In February, Dardick led a contingent of local environmental leaders, conservationists, park advocates and children from Grass Valley Charter school, to hand deliver more than 10,000 petitions to Coleman.

At the time, Coleman praised the contingent, including western Nevada County officials and the children for developing a sustainable plan to keep the park open.

Dardick said those words now ring hollow.

“The state parks staff betrayed the public trust, they betrayed our community and betrayed our children,” he said. “As a sign of good faith, the parks department should immediately restore full services to both parks.”

Alden Olmsted, who has undertaken a comprehensive fundraising effort that encourages people to provide $1 to buckets strategically placed at businesses around the state, said he has long suspected something wrong was afoot.

“Now I know why it was so difficult to try and help the parks system,” Olmsted said.

Olmsted said he repeatedly pressed park officials for specific figures regarding what it would take to keep specific parks open and was repeatedly rebuffed.

“The numbers were erroneous all along,” he said.

Assemblyman Jared Huffman, D-San Rafael, who emerged as a consistent critic of how the parks department conducted the park closure process agreed with Olmsted in a Friday news release.

“As we've dealt with the parks funding crisis, I've repeatedly expressed my concern about the lack of transparency and the fortress mentality at State Parks,” Huffman said. “The only good news I can see from this scandal is that it will bring much-needed transparency, accountability, and a serious ‘reset' to an agency that desperately needs it.”

State Sen. Doug LaMalfa, R-Richvale, joined the chorus of voices in denouncing the fiscal fiasco.

“Though I am happy to discover there is money to keep California's parks open, I am disappointed in the State Parks Director and her staff for concealing money from California's taxpayers while calling for the closure of 70 state parks,” LaMalfa said.

The attorney general's office is investigating and state finance officials will conduct an audit, Blanchard said.

The resignation comes at a time when state lawmakers and park advocates have been trying to find ways to keep most parks open despite ongoing budget cuts. Last month, park officials announced most of the 70 state parks once slated to close would remain open due to various operating agreements.

The Sacramento Bee first reported Coleman's resignation Friday, after inquiring about the possibility of a surplus. In addition, the newspaper reported Sunday about a secret vacation buyout program for employees at department headquarters that cost taxpayers more than $271,000.

State officials said the “hidden assets” that prompted the shake-up were found by new park fiscal staff while the attorney general's office was looking into the unauthorized vacation buyouts.

It's not clear why the accounts weren't properly reported. A preliminary investigation shows the parks department underreported two funds as far back as 2000.

The state parks and recreation fund, which is generated from park fees and rentals, held $20.4 million more than was reported. The off-highway vehicle fund, which is generated from registering ATVs and similar types of vehicles, held $33.5 million more than reported.

Officials said Gov. Jerry Brown accepted Coleman's resignation and has appointed California Natural Resources Agency Undersecretary Janelle Beland as acting interim director of the department.

California operates 279 parks, which include famous beaches to redwood forests. The parks that were at risk of closure got a reprieve last month after the governor signed a bill allocating new funds for the beleaguered parks system for the next year.

The state has also reached agreements with nonprofits, local governments and others to keep 40 parks open at least for a few years.

A large share of nonprofit funding has come from the California State Parks Foundation, a nonprofit arm of the state parks that raises money to support the parks mission.

The foundation has issued $833,000 in grant money over the past two months to help finalize operating agreements, according to the foundation's Director of Communications Jerry Emory.

Emory said the foundation is “shocked and dismayed” at the news of the parks department shake-up, but said the discovery of the funds does not necessarily mean the fiscal crisis has passed.

“The California State Parks' budget has been reduced by 33 percent in the last four years,” he said. “There is still $1.3 billion looming in deferred maintenance — these parks are falling apart.

Nonprofits and community groups will still need to continue to raise the necessary funds to ensure the long-term viability of all 70 parks on the list.

California State Parks recently came to a donor agreement to keep Malakoff Diggins State Historic Park open through the next year.

The agreement involved SYRCL, the Malakoff Diggins Park Association and the Olmsted Park Fund and a reduction of services.

Dardick had planned to meet with Marilyn Linkem, the supervising ranger of the Sierra District next week to finalize the agreement, but it remains unclear on Friday how the news of the underreported funds will impact this agreement.

Most Calif. parks escape ax, but not out of woods

by Peter Fimrite
San Francisco Chronicle

California's state parks have emerged almost intact from the vortex of red ink coursing through the state, but officials insist it will take more time, work and a lot more money to save the beleaguered system during the next budget cycle.

Only two of the state's 278 parks will be shut down completely, a far cry from the 70 scheduled last year for closure due to the state's seemingly perpetual budget crisis. But the park system is a long way from being out of the woods. The dozens of agreements recently struck with nonprofits and foundations to run parks are all temporary, meaning the state could be facing more closures next year and the year after.

John Laird, California's secretary for natural resources, said that the park system is ultimately the government's responsibility and that permanent solutions must be found by the Legislature.

"We will probably in some form be looking at what the future of the state parks department is," Laird said. "We're going to have to take a look overall at what the best way is to have a sustainable parks department for the generations to come, and it's something that in some form we will do over" the next year.

As of now, operating agreements have been signed for 40 parks that were originally on the closure list. Twenty-five others, including Candlestick Point State Recreation Area, are in active negotiations with organizations that are prepared to provide security, parking attendants, rangers and other services, Laird said.

5 parks could be cut

Five parks are still on the chopping block: Gray Whale Cove State Beach near Pacifica; Benicia State Recreation Area in Benicia; Zmudowski State Beach near Moss Landing in Monterey County; the California State Mining and Mineral Museum in Mariposa County; and Providence Mountains State Recreation Area in San Bernardino County.

The Providence recreation area has already been closed for months. The mining museum will also be shutting its doors, but officials said it still could be saved. The two beaches will not have any services, but California law requires them to remain open to the public. The Benicia recreation area will remain open with limited services while state park officials work with the city on a long-term solution, park officials said.

The mass closures scheduled for Sunday were averted thanks to a move by the Legislature to spare the parks by giving them $41 million. But Gov. Jerry Brown slashed that funding to $10 million last week. Still, combined with $13 million in redirected bond payments, the funds bought state park officials more time to complete deals with nonprofit organizations, foundations, government agencies, regional park districts, associations and private companies willing to run a park.

"It will give us a path to keep most, if not all, state parks open, and it will help make parks more financially sustainable," Laird said. "I think we are on a path to potentially keep all the state parks open."

The park situation has become a major crisis in California, which is responsible for 1.4 million acres of land, including 280 miles of coastline and 625 miles along lakes and rivers. The state parks, which also include historic buildings, museums and sites, generate billions of dollars in revenue from tourism and have been particularly important to Californians recently as the economy tanked and more people turned to affordable camping vacations as options.

Public outrage over the cuts prompted groups and individuals to begin raising money, including one man who went from park to park with donation buckets. Park prospects improved dramatically after the passage of AB42, introduced by Assemblyman Jared Huffman, D-San Rafael, which smoothed the way for nonprofit groups to take over park operations.

"I think part of this narrative is we have re-energized the people who love parks, and they are stepping up and contributing to these parks in all kinds of ways," said Ruth Coleman, director of California State Parks. "It's a new way of everybody getting involved and protecting these extraordinary resources, and this is going to be the new model for California."

Huffman, chairman of the Assembly Water, Parks and Wildlife Committee, has been a major catalyst in the effort to save park programs. The $13 million infusion of bond money will go into an enterprise fund and be used by the parks department to develop new revenue-generation programs, a scheme first proposed in AB1589, the California State Park Stewardship Act of 2012, introduced by Huffman.

‌Pay machines in the works

Coleman said her department plans to place solar-powered pay machines in parking lots and at kiosks, so that park visitors can easily use credit and debit cards. Officials are also working on deals with county governments to put up road and parking signs and otherwise encourage people to come into parks and pay instead of parking on county roads and walking in. Diesel generators will be replaced by solar power to cut down on fuel costs, she said, and more backcountry cabins and alternative camping sites will be built for visitors to rent.

Some successful new ventures have already been put in place, she said, including the recent opening of a wine-tasting kiosk at Topanga State Park in Malibu, an annual blues festival at Marshall Gold Discovery State Historic Park in Coloma and a recent Broadway-style production inside the ruins at Jack London State Historic Park for which 400 people paid $40 each.

"There's a lot of different creative ideas that staff have been generating internally already, and with these funds we think we can really push forward and come up with some exciting new developments that will help the department create more of a sustainable enterprise model," Coleman said.

There is, for now, less of a threat that there will be more of the kind of criminal activity that happened earlier this year at the remote Providence recreation area, where vandals smashed windows at the vacant visitors center and stripped copper wiring connected to the lighting system for the park's Mitchell Caverns.

Some people are concerned that California is in the process of selling off its park system to private entities in an attempt to ward off transients, pot growers and vandals, a fear that Huffman said is premature.

"We're trying new things, a lot of which have never been done before, in the nadir of the worst financial crisis since the Great Depression," Huffman said. "We are going to see how that plays out to assess the degree nonprofits can be a solution, but the upwelling of support is a part of why I think we have a very solid chance of saving our parks. Legislators have heard the public, which is playing a huge role in shaping this debate."