Trump administration hints at changes to California desert's smallest national monument

President Barack Obama used his executive authority under the Antiquities Act to protect this lush expanse of Joshua trees in the Castle Mountains. Obama designated the Castle Mountains National Monument in 2016. (Jay Calderon/The Desert Sun)

Sammy Roth
The Desert Sun

Interior Secretary Ryan Zinke isn't recommending any changes to Sand to Snow or Mojave Trails, two national monuments in the California desert that were established by then-President Barack Obama last year.

But Zinke's review of 27 national monuments, which was released to the public on Tuesday, hints at the possibility of allowing hunting in Castle Mountains National Monument, a pocket of California desert tucked between Mojave National Preserve and the Nevada border, where jutting mountains that look like the ramparts of a castle loom over Joshua trees, bighorn sheep, abundant grasses and a gold-mining ghost town.

The desert's bighorn sheep are protected by the Endangered Species Act, so any hunting would be extremely limited. But the Castle Mountains area is also home to mule deer, bobcats, quail, cottontail rabbits and other species sought by hunters.

President Donald Trump ordered Zinke earlier this year to review all monuments larger than 100,000 acres that have been established by presidential decree since 1996. That appeared to exclude Castle Mountains, which was designated by Obama alongside Sand to Snow and Mojave Trails but encompasses just 21,000 acres. But Trump also told Zinke to review any monuments Zinke determined were established "without adequate public outreach and coordination with relevant stakeholders." Rep. Paul Cook, a Republican who represents the High Desert, wrote a letter to Zinke arguing that Castle Mountains was "created without any local outreach or input," and that Obama had created the monument for the sole purpose of preventing the reopening of a gold mine.

In a brief section of Zinke's report labeled "other monuments," the Interior secretary lists just one example of a monument he believes was established without adequate public outreach: Castle Mountains. Zinke said his review process "uncovered inadequate communication with the sportsmen community." According to his report, hunting is prohibited in Castle Mountains because Obama's monument proclamation didn't explicitly say it's allowed, even though hunting is permitted next door in the 1.6-million acre Mojave National Preserve. Both sites are managed by the National Park Service.

Zinke didn't explicitly call for changes to the management of Castle Mountains National Monument. But in the paragraph immediately after his mention of Castle Mountains, he recommended "ongoing review of monuments to ensure that while continuing to protect objects, the proclamations prioritize public access; infrastructure upgrades, repair, and maintenance; traditional use; tribal cultural use; and hunting and fishing rights."

An Interior Department spokesperson didn't respond to an emailed question about whether Zinke intends to recommended changes to Castle Mountains. A spokesperson for Cook, the GOP member of Congress, also didn't respond to a request for comment.

David Lamfrom, director of national wildlife programs for the nonprofit National Parks Conservation Association, rejected the idea that there wasn't adequate public outreach before the Castle Mountains monument designation. Separate pieces of legislation proposed by Cook and Sen. Dianne Feinstein, a California Democrat, would have added the area to Mojave National Preserve, but those bills were bogged down by the more contentious politics of the proposed Mojave Trails monument. Only after several failed legislative efforts did Obama use the Antiquities Act to make Castle Mountains a national monument, since it could only be added to the national preserve by Congress.

"There's been decades of work of vetting related to Castle Mountains," Lamfrom said.

Still, Lamfrom said he thinks it's "reasonable to have a conversation" about allowing hunting in Castle Mountains, especially considering it's allowed in Mojave National Preserve, which surrounds the monument on three sides. He said Congress could vote to allow hunting, or the National Park Service could initiate a rule-making process.

"That should be locally driven and include local management and local stakeholders. So I think that having that conversation is OK, in terms of that larger management, in terms of consistency of management over these larger landscapes," Lamfrom said. He added that enforcing a prohibition on hunting within the 21,000-acre monument may be difficult, considering it's surrounded by the much larger preserve, where hunting is allowed.

Zinke recommended shrinking six national monuments: Bears Ears and Grand Staircase-Escalante in Utah, Cascade-Siskiyou in Oregon and California, Gold Butte in Nevada, and Rose Atoll and Pacific Remote Islands in the Pacific Ocean. Trump got a head start on those recommendations on Monday, traveling to Salt Lake City to sign orders dramatically reducing the size of Bears Ears and Grand-Staircase-Escalante, both of which were hated by the state's all-Republican congressional delegation.

Zinke also advised changes to the way four other monuments are managed: Katahdin Woods and Waters in Maine, Northeast Canyons and Seamounts in the Atlantic Ocean, and Organ Mountains-Desert Peaks and Rio Grande del Norte in New Mexico.

Collectively, the changes envisioned by Zinke could open more of America's public lands and waters to oil and gas drilling, mining, timber harvesting and commercial fishing.

Conservationists, outdoors enthusiasts and recreation companies have slammed Zinke's monuments review as a sham designed to allow private companies to exploit public resources. They've also argued Trump doesn't have the legal authority to make such sweeping changes to monuments designated by his predecessors under the Antiquities Act, although several presidents have reduced the size of such monuments.

More than a dozen environmental groups and Native American tribes have already filed lawsuits challenging Trump's proclamation shrinking Bears Ears and Grand Staircase. The outdoor clothing company Patagonia, which is based in Ventura, California, has also threatened to sue. The company protested Trump's actions Monday by briefly replacing its online homepage with the message, "The president stole your land."

Zinke responded to Patagonia's criticism on Tuesday, telling reporters that it's "shameful and appalling to blatantly lie in order to get money in their coffers." He said any land removed from a national monument would still be owned by the federal government.

"Not one square inch was stolen," Zinke said.

Trump shrinks Utah monuments created by Obama, Clinton

Vice President Al Gore applauds after President Bill Clinton signs a bill designating about 1.7 million acres of land in southern Utah's red-rock cliff as the Grand Staircase-Escalante National Monument, at the Grand Canyon National Park, in Arizona In this Sept. 18, 1996. (AP Photo/Doug Mills, File)

By Barnini Chakraborty
Fox News

Capping months of speculation, President Trump on Monday signed a pair of executive orders to significantly shrink two of Utah’s national monuments – Bears Ears and the Grand Staircase-Escalante – that were created by his Democratic predecessors.

The controversial move was pitched by Trump as a win for states' rights and follows an April review conducted by Interior Secretary Ryan Zinke on the boundaries of large national monuments. The review initially looked at more than two dozen sites designated by presidential decree since the 1990s.

“I know you love this land the best and you know how to protect it and you know how to conserve this land for many, many generations to come,” Trump told a group of people at Utah’s Capitol in Salt Lake City. “They don’t know your land. They don’t care for your land like you do.”

Trump’s presidential proclamations cut Bears Ears by 85 percent and Grand Staircase-Escalante in half. The action is also likely to trigger a legal battle that could alter the government’s approach to conservation.

Utah’s congressional and state leaders lobbied the president to reduce the size of the monuments so the state would have more control on what can be done on the land.

Republican Sen. Orrin Hatch of Utah praised the announcement and said Trump was giving the people of Utah “a voice in the process.”

Zinke maintained Monday that the move should be seen as correcting an overreach by the federal government.

“We’re not taking one square inch of federal land and transferring it or selling it. It is still federal land, with all the protections of federal land,” Zinke said, adding that the biggest change is that the government is “allowing greater use on the areas that were previously in the monument.”

Opponents, however, see it as the latest example of the government breaking promises to Native American tribes and eroding protections for public land.

In 2016, former President Barack Obama proclaimed Bears Ears a national monument dedicated to Native American culture.

Former Interior Secretary Sally Jewell, who was instrumental in designating Bears Ears monument, tweeted Trump’s actions “will make him the most anti-conservation president in our history. He will be challenged by tribes and thoughtful citizens that recognize that some places are too special to develop.”

About 2,000 people lined up near Utah’s capitol on Monday, holding signs like “Keep your tiny hands off our public lands” and chanting “lock him up!” at Trump.

There were also protests held over the weekend at Utah’s snowy capital.

“I think it’s important to have natural places that are untouched and not modified,” demonstrator Valerie Huitzul told Fox News.

Huitzul was among the 5,000 protesters who showed up over the weekend.

The decision to shrink the state’s sprawling wilderness shrines has prompted fierce backlash by environmental groups as well.

Ahead of Monday’s visit, 146 scientists, researchers and academic organizations from 19 states sent a letter to the Trump administration calling the Grand Staircase-Escalante National Monument “an important living laboratory” to scientific research.

The Center for Western Priorities described Monday’s event as the largest rollback of protections for lands and wildlife in U.S. history.

Arnold Miller, president of the Paleontological Society and Senior Associate Dean and Professor of Geology at the University of Cincinnati, said the Grand Staircase-Escalante “contains a trove of scientifically-valuable fossils and strata from boundary to boundary, and the excising of portions of this national monument for mining or other commercial activities will tragically compromise its integrity.”

Trump said Monday while leaving the White House that the monument announcement is "something that the state of Utah and others have wanted to be done for many, many years." He said it is "so important for states' rights and so important for the people of Utah."

In December, shortly before leaving office, Obama irritated Utah Republicans by creating the Bears Ears National Monument on land sacred to Native Americans.

Trump signed an executive order in April directing Zinke to review the protections. Trump is able to upend the protections under the 1906 Antiquities Act, which gives the president broad authority to declare federal lands as monuments and restrict their use.

Trump said at the time that he had spoken to state and local leaders "who are gravely concerned about this massive federal land grab. And it's gotten worse and worse and worse, and now we're going to free it up, which is what should have happened in the first place. This should never have happened."

The move marks the first time in a half century that a president has undone these types of land protections. And it could be the first of many changes to come.

Zinke has also recommended that Nevada's Gold Butte and Oregon's Cascade-Siskiyou monuments be reduced in size, though details remain unclear. The former Montana congressman's plan would allow logging at a newly designated monument in Maine and more grazing, hunting and fishing at two sites in New Mexico.

Zinke caps review of Nevada monuments with Bunkerville visit

Interior Secretary Ryan Zinke talks to the media on July 30, 2017 while visiting Southern Nevada.

By Keith Rogers
Las Vegas Review-Journal

BUNKERVILLE — Interior Secretary Ryan Zinke spoke to reporters early Sunday evening in this rural Clark County community as he wrapped up a much-anticipated visit to Southern Nevada that included a hike at Gold Butte National Monument and stops in Basin and Range National Monument to see American Indian rock art.

“As a steward of our greatest treasures, it’s good to get out,” Zinke said as he stood in the sun against a backdrop of the Gold Butte range. “As a former Navy SEAL, I think it’s important to go out on the front line and actually meet people because the view from the Potomac is a lot different than the Virgin River.”

The interior secretary visited the monuments as part of President Donald Trump’s executive order mandating a review of 22 national monuments and five marine national monuments created by presidential decree since Jan. 1, 1996, to determine whether the designations should be scaled back or eliminated.

“What I’ve learned in the monument review is every monument is unique,” said Zinke, who wore a cowboy hat as he answered reporters’ questions.

“In a lot of cases people are afraid public land is going to be sold so they feel like a monument is a tool to make sure that public land stays in public hands,” he said, adding, “Out front, I am an advocate to never sell or transfer public land. So is the president.”

Zinke is expected to present Trump with his final recommendations by the end of August.

Speaking outside Brian Haviland’s residence near Gold Butte, Zinke offered insight into criteria for downsizing.

“Again, the definition (of a national monument) is fairly loose so we’re going through and evaluating,” he said. “What’s the object? Is the protection in the smallest area compatible with protection of that object?”

And, he said, “If we’re going to protect those objects that the monument is intended to do, then you have to have things like a bathroom there so people hiking up a trail can use the restroom before they look at the petroglyphs or dwellings.”

Based on his tours Sunday, he said Nevada’s monuments need better road maintenance so public access is not interrupted.

“The good thing is, I haven’t met anybody on either side that doesn’t love the land,” and they agree it’s worth protecting, he said. “So there’s more in common on the monuments than there are opposites.”

Before Zinke’s arrival, Russ Graves voiced concern about the size of the Gold Butte monument.

“I’d just like to see the size reduced,” said Graves. 73, who owns an orchard that is part of a 220-acre ranch.

Whitney Pocket, the Devil’s Throat sinkhole and a few other locations on Gold Butte should be part of the monument, but other parts don’t have antiquities value, he said.

Zinke had planned to stay in Mesquite through Monday to meet with U.S. Rep. Dina Titus, D-Nev., and stakeholders there and in Overton on the last leg of a swing through the West. But he canceled those plans to return to Washington, D.C., for the first Cabinet meeting with new White House Chief of Staff John Kelly.

While the Monday meeting was scuttled, Zinke did meet with some stakeholders Sunday and has scheduled phone meetings with others, including the Moapa Band of Paiute Indians, according to his staff.

The Riverside Road location where Zinke spoke is within three miles of the April 2014 armed standoff on the Virgin River between federal agents from his department and militia supporters of defiant rancher Cliven Bundy — the subject of a high-visibility trial in federal court in Las Vegas.

Asked by the Las Vegas Review-Journal if the Interior Department plans to round up Bundy’s stray cattle from the Gold Butte monument, Zinke said: “I’m not going to address that issue.”

Regarding ranching on public land, he said, “As we look at the rancher, that’s as much a part of the culture of a lot of these monuments as some of the objects.”

Feeling forgotten

Bundy’s wife, Carol, said she was disappointed Zinke didn’t meet with her on his way to Gold Butte despite her efforts to reach him through emails, certified letters and phone calls to staff.

“We have not received one phone call back,” she said, sitting in the living room of the Bundy ranch house Sunday. “We feel like we’re forgotten. Yet my husband and four of our sons, a total of 19 men, sit in prison under the guise of charges of the Department of Interior, which Mr. Zinke is in control over, and they have committed no crime.

“Why would you come to my front yard and not reach out to my family and hear our pleas so that I could hear his as well?” she said.

Zinke said he’s trying to change the image of Interior Department agencies with heavy-handed law enforcement officers.
“We should be the happy department,” he said.

“When you see a BLM truck you should think land manager and not law enforcement, which we work with through our local sheriffs.”

Zinke’s visit to Nevada started early. After his flight landed in Las Vegas at about 7:30 a.m., Zinke flew by helicopter to Gold Butte’s Whitney Pocket, where he hiked with several local officials.

Other stops included White River Narrows, a Basin and Range petroglyph site; artist Michael Heiser’s “City” project where he met with Los Angeles County Museum of Art staff members; and the Mount Irish petroglyph site in Basin and Range, where he met with Friends of Gold Butte.

Earlier Sunday, U.S. Sen. Catherine Cortez Masto, D-Nev., released a video of her support for the national monuments.

“Our outdoor recreation in Nevada is a boon to our economy, 148,000 jobs, billions of dollars in revenue to the economy,” she said in the video. “And that’s worth fighting for.”

About the monuments

In his proclamation designating Gold Butte National Monument, President Barack Obama called the region “a landscape of contrast and transition, where dramatically chiseled red sandstone, twisting canyons, and tree-clad mountains punctuate flat stretches of the Mojave Desert.”

Gold Butte encompasses nearly 300,000 and was created Dec. 28, 2016.

Basin and Range National Monument was designated in July 2015 and covers 704,000 acres in Lincoln and Nye counties.

Obama’s proclamation said, “The vast, rugged landscape redefines our notions of distance and space and brings into sharp focus the will and resolve of the people who have lived here. The unbroken expanse is an invaluable treasure for our Nation and will continue to serve as an irreplaceable resource for archaeologists, historians, and ecologists for generations to come.”

Rule easing public lands transfer concerns hunters, others

FILE - In this July 23, 2003 file photo, a pronghorn antelope doe keeps watch as two fawns peer out from tall grass in the heart of southeastern Oregon's Hart Mountain National Antelope Refuge near Adel, Ore. A change in U.S. House rules making it easier to transfer millions of acres of federal public lands to states is worrying hunters and outdoor enthusiasts who fear losing access. Lawmakers earlier this month passed a rule eliminating a significant budget hurdle and written so broadly it includes national parks. (AP Photo/Don Ryan, File)

KEITH RIDLER
Associated Press

BOISE, Idaho (AP) - A change in U.S. House rules making it easier to transfer millions of acres of federal public lands to states is worrying hunters and other outdoor enthusiasts across the West who fear losing access.

Lawmakers earlier this month passed a rule eliminating a significant budget hurdle and written so broadly that it includes national parks.

President-elect Donald Trump's pick for Interior secretary, Montana Rep. Ryan Zinke, voted for the rule change as did many other Republicans. The Senate would have to weigh in on public land transfers as well.

"Anybody who uses them for any kind of outdoor activity â snowmobiling, mountain biking, hunters, all that â they're very alarmed by all this," said Boise State University professor and public lands policy expert John Freemuth. "The loss of access that this could lead to."

The rule passed by the House defines federal land that could be given to states as "any land owned by the United States, including the surface estate, the subsurface estate, or any improvements thereon."

About a million square miles of public land is managed by the federal government, mostly in 12 Western states, according to the Congressional Research Service. Some state lawmakers in recent years have made failed efforts to wrest control of those lands, mainly to reduce obstacles to accessing resources such as timber, natural gas and oil, Freemuth noted.

U.S. lawmakers have the authority to transfer those lands to states. Outdoor recreationists fear states would then sell the land to private entities that would end public access.

Zinke, whose confirmation hearing to become Interior secretary is Tuesday, has a track record of opposing public land transfers. Last summer, he resigned as a delegate to the Republican National Convention, which favors such transfers.

"The congressman has never voted to sell or transfer federal lands and he maintains his position against the sale or transfer of federal lands," Heather Swift, a Zinke spokeswoman, said in an email.

Whit Fosburgh, CEO of the Theodore Roosevelt Conservation Partnership, which works to guarantee places to hunt and fish, said he's inclined to excuse Zinke on his House vote favoring transfers because of his record being "very solid on these public lands issues."

Still, Fosburgh was irked that the House approved a rule that he said essentially allows federal public land to be given away as if it had no value.

Rep. Mike Simpson, R-Idaho, also voted for the rule easing transfers. But Simpson was also the driver of a 2015 bill that created three wilderness areas in Idaho after he got ranchers, recreationists and environmental groups to back the plan after a 15-year effort.

The possibility that President Barack Obama would designate a much larger area as a national monument is widely believed to have led to the bill passed by the House and Senate.

"There is no disputing Congressman Simpson is a supporter of public lands," Nikki Wallace, a spokeswoman for Simpson, said in an email.

Freemuth noted that even with a rule change, land transfers would face significant challenges.

"Whatever Zinke says early will affect those attempts," Freemuth said.

He and Fosburgh fear that federal land turned over to states would be too expensive to manage, particularly when it comes to fighting wildfires.

Freemuth believes states would sell land to private entities. Fosburgh was equally dismissive, saying transfers would eventually lead to private owners and no public access.

"You get rid of public lands, you end hunting and fishing in this country as we know it today," Fosburgh said.

Proposed final version of controversial Red Cliffs management plans released

Red Cliffs provides important habitat at the intersection of the Colorado Plateau, the Great Basin and the Mojave Desert.

Written by Julie Applegate
St. George News

ST. GEORGE – The Bureau of Land Management has released proposed resource management plans for two national conservation areas; the plans affect more than 100,000 acres of public land in Washington County and have been controversial.

The draft versions of the management plans for the Red Cliffs and Beaver Dam Wash national conservation areas stirred heated debate during the public comment period which ended in October 2015.

County, municipal and transportation officials believe the plans go too far in restricting land use, while conservationists favored more restrictive elements of the plans.

While county officials and others have not had a chance to fully review the proposed plans, Deputy Washington County Attorney Celeste Maloy expressed both appreciation and concern.

“We are so grateful for the participation of thousands of concerned citizens as well as local, state, and congressional elected leaders,” Maloy said.

“We asked for the public to comment last fall and the public responded,” Maloy said. “We asked for support from elected officials, and they stepped up as well. Our collective efforts paid off in some really positive ways.”

Early on in the process, county officials weren’t satisfied with the level of input they were being allowed on the resource management plans, Maloy said.

“Without a doubt, the communication and understanding between the county and the local BLM have improved during this process. We consider that a win. Local BLM staff listened to our concerns when we reacted to the draft plan.”

From an initial look at the plans, Maloy said, some of the changes from the initial draft to the proposed final plan released Tuesday are significant improvements; however, other issues addressed in the resource management plans will take continued work.

“For example, BLM’s final position on the Northern Corridor is disappointing. With all of the dialog between the county, cities, and federal agencies on that issue, we had hoped to have a more clear option to meet our future transportation needs,” Maloy said.

The county will continue to pursue all legal and political avenues to protect Washington County’s interests, she said.

Transportation officials are concerned that the resource management plans will prevent a long-planned Northern Corridor through the Red Cliffs National Conservation Area, which includes the Red Cliffs Desert Reserve, home of the endangered Mohave desert tortoise.

The draft resource management plan for the Red Cliffs National Conservation Area did not list the county’s optimal route in its “preferred” alternative.

History

A 90-day public comment period, which began July 16, 2015, was extended past the original Oct. 15 deadline to Nov. 16 after local officials demanded more time. A series of BLM open houses were held to help inform the public about the resource management plans.

The two national conservation areas are the first in Utah and were created by the Omnibus Public Land Management Act of 2009, known as OPLMA, to “conserve, protect, and enhance … the ecological, scenic, wildlife, recreational, cultural, historical, natural, educational, and scientific resources” of the public lands, according to a BLM statement.

The Red Cliffs National Conservation Area comprises 44,859 acres and is located just north and adjacent to much of the population of Washington County.

Red Cliffs provides important habitat for the threatened desert tortoise and many unusual plant species in the intersection of the Colorado Plateau, the Great Basin and the Mojave Desert. This area includes a stretch of the Virgin River and a number of popular trails.

The Beaver Dam Wash National Conservation Area covers 63,478 acres and is located in the southwest corner of Utah. The area contains many native plants and animals which have evolved into unique species, some found nowhere else on earth.

Beaver Dam Wash includes the northernmost range Joshua trees and riparian areas that are important stops for migratory birds; the area is also known for remote recreation opportunities such as hiking, rock climbing, horseback riding and wildlife viewing.

A proposed amendment to the St. George Field Office resource management plan has also been released. The proposed amendment addresses two primary management issues: identification of areas where biological conservation is a priority and modifications of the off-highway vehicle area designations to prepare for the development of a comprehensive travel management plan.

Protest period

The publication in the Federal Register of the Notice of Availability by the Environmental Protection Agency of the proposed plans will initiate a 30-day protest period. That is expected to happen Friday, Bureau of Land Management Color Country District spokesman Christian Venhuizen said.

However, copies of the proposed final plans were provided Tuesday to give the county and others more time to review and respond to the documents, he said.

Anyone who participated in the planning process and who has an interest that is or may be adversely affected by the planning decisions may file a protest within 30 days of that publication, BLM information states.

The protest period is not the same as the public comment period, Venhuizen said.

“This is a slightly different period … we’re not looking for public comment,” he said. While the public is invited to review the documents, the official public comment period has passed.

However, the resource management plans cannot be finalized by Records of Decision until all the protests are resolved, Venhuizen said.

The Governor’s Consistency Review began last week and gives the Governor’s office a minimum of 60 days to review the resource management plans before the records of decision are signed, Venhuizen said.

Details

The proposed plans and amendment, along with a final environmental impact statement, are available to view or download from the BLM’s ePlanning website here.

Copies of the documents are available for inspection at the Interagency Public Lands Information Center, 345 East Riverside Drive in St. George, and the BLM Utah State Office Public Room, 440 West 200 South, Suite 500 in Salt Lake City. The documents are available during from 8 a.m. to 4:30 p.m., Monday through Friday, except on federal holidays.

All protests must be in writing and mailed to one of the following addresses:

• U.S. Postal Service: BLM Director (210), Attention: Protest Coordinator, P.O. Box 71383, Washington, DC 20024–1383.
• Overnight Delivery: BLM Director (210), Attention: Protest Coordinator, 20 M Street SE, Room 2134LM, Washington, DC 20003.

Before including your address, phone number, email address, or other personal identifying information in your protest, you should be aware that your entire protest — including your personal identifying information — may be made publicly available at any time. While you may ask the BLM in your protest to withhold your personal identifying information from public review, the BLM cannot guarantee that it will be able to do so.

For additional information, please contact Keith Rigtrup at 435-865-3000.

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

 PUBLIC LANDS

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

Phil Taylor
E&E / Greenwire

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Panel skips enviro arguments

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

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

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

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

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

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

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

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

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

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

This issue also did not come up yesterday.

Ruling sticks: Salt Creek not a county highway

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

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

By Brian Maffly
The Salt Lake Tribune

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Utah protesters prepare for new face-off with feds

In this 2010 photo, Bureau of Land Management staffer Tom Heinlein puts a "No vehicles" placard at the trail head of Recapture Canyon near Blanding, Utah. (Leah Hogsten / Salt Lake Tribune)

by John M. Glionna
Los Angeles Times

This eye-blink of a town in the state’s scenic southeastern corner bills itself as the “Gateway to Adventure.” But this weekend it promises to be more like a launchpad for civil unrest.

A band of angry citizens plans to ride all-terrain vehicles onto closed-off, federally managed public land Saturday in protest against the federal Bureau of Land Management, which many say has unfairly closed off a prized area, cheating residents of outdoor recreation.

The ride, organized by San Juan County Commissioner Phil Lyman, is a gambit to assert county sovereignty over Recapture Canyon, known for its archaeological ruins, that BLM officials say has been jeopardized from overuse. The canyon was closed to motor vehicles in 2007, the agency said, after two men forged an illegal seven-mile trail. Hikers and those on horseback are still allowed there.

Lyman and his supporters want the BLM to act more quickly on a years-old request for a public right-of-way through the area. “You can’t just arbitrarily shut down a road in San Juan County,” he said. “If you can do that and get away with it, what else can you do?”

The revolt has received national attention, coming at the heels of Nevada rancher Cliven Bundy’s successful standoff last month against the BLM that suggests a rising battle across the West over states’ rights on federally managed public lands. Tensions rose in Utah this week after two men pointed a gun at a BLM employee on a highway.

The Blanding protest is being spearheaded not by any citizen rancher like Bundy, but rather by an outspoken local public official — a sign of the growing frustrations in a rural county composed of nearly 90% public lands managed by the BLM. As a result, locals say, they have long been shut out of land-use decisions that that intimately affect their lives and economy.

Many say the Nevada incident and the Blanding protest are both reminiscent of the 1970s Sagebrush Rebellion, in which communities across the West decried what they called the overreaching power of the federal government.

In recent years, conservative lawmakers in several Western states have renewed the call for greater state and local control of federal lands — many describing the federal government as an occupying force.

Lyman says he has a right to represent his local constituency against outside agitators, including the federal government. And he enjoys widespread support here.

“I think more than 80% of the people in this town stand behind his cause,” said 33-year resident Jill Bayles, a retired nurse who said she misses driving her ATV in Recapture Canyon.

“I won’t be at the protest because my back hurts, but if it didn’t, I’d be out there on my ATV, leading the charge,” she said. “People here are just tired of the Park Service and BLM telling us what to do.”

Environmental groups have spoken out in support of the BLM, saying that fragile Recapture Canyon must be protected. In a statement issued Friday, the Wilderness Society called for the area “to remain closed to motorized use so its valuable natural, cultural and historic resources can be protected.”

This week, BLM officials notified Lyman that any illegal foray in the area would bring consequences such as citations and arrest. “I strongly urge you to cancel the proposed ride in the closed portion of the canyon,” Lance Porter, the agency’s local district manager in Moab, wrote in a hand-delivered letter. “BLM will seek all appropriate civil and criminal penalties against anyone who participates in the proposed ride.”

Lyman quickly responded with a letter saying that the ride was still on and that local resentment of federal officials here had not cooled: “I do not consider my protest, or the protest of those who choose to participate on May 10, to be in violation of the law.”

Many across the West are watching to see what happens in Recapture Canyon.

Earlier this week, two men wearing hooded sweatshirts brandished a handgun at a BLM worker driving an agency vehicle, holding up a sign that read, “You need to die.” BLM workers have since been advised to take precautions such as not wearing their uniforms, and the agency issued a statement saying threats against its employees “will not be tolerated.”

The protest comes just a month after Bundy successfully took on the BLM over his claims to graze hundreds of cattle on public land without paying fees. In that incident, the federal government backed down after raiding the rancher’s land — pushed back by the arrival of hundreds of so-called citizen soldiers, many armed with semiautomatic weapons.

Officials said the retreat came after they feared bloodshed.

Lyman’s protest was planned long before the Bundy incident, but now militia who rallied to help Bundy are expected to converge in this town of 3,500 residents settled a century ago by Mormon missionaries.

In recent days, many militia members have left camps near the Bundy ranch 80 miles north of Las Vegas to make the nearly 500-mile drive to Blanding.

“There aren’t as many men here as there were a few days ago,” Bundy’s wife, Carol, told The Times. “Many of them have gone up to Utah.’

Asked whether they would be armed, she said, “They’re militia! Of course they’re carrying their weapons.”

On Friday, Stephen Dean, a 46-year-old Salt Lake City artist and self-proclaimed militiaman, sat in his van at a park where a protest rally was scheduled for the evening. “I drove up from the Bundy ranch today to show my support for local people here for access to public lands,” he said, an American flag flying from his radio antenna.

He said he was a member of a Utah militia group known as the People’s United Mobile Armed Services. “Cliven told me there was another cause up here,” he said. “I’m from Utah, so this is important to me.”

On the militia group’s Facebook page, Dean posted a message that said, “This could be the next big story as the ATV loving locals team with Militia groups to recapture Recapture Canyon.”

He added: “The pro-ATV dude at the grocery store said ‘it could get ugly really fast.’” He closed the post with, “Arm yourselves!”

Later that night, he set up a microphone and tried to solicit funds from 75 people who had arrived to hear Lyman speak.

When Lyman arrived, he was perturbed that his rally had been commandeered by a militia he didn’t invite. “This is my crowd,” he told a reporter. “But I don’t just want to get up and push them out of the way.”

Later, he walked up to the microphone and asked Dean: “Who are you, anyway?”

He then told the crowd that he and other protesters planned to ride their ATVs onto federal land in the morning. “This isn’t political; this isn’t economic. This is just who we are,” he said to applause.

“If you make a rule that I have to lick your boots, I’m just not going to do that,” he added. “I’ve tried to work with these federal people and have spent a lot of time on my knees. But sometimes you just have to stand up for yourselves.”

Meanwhile, officials have urged calm.

“I hope we can continue to use civil dialogue in matter because nobody wants to see people get hurt,” Kathleen Clarke, who was a BLM director from 2001 to 2006, told The Times. “A big show of force and a showdown at the OK Corral is just not helpful. We don’t want that kind of standoff.”

She added: “it’s never a good thing when you have one group of armed Americans lined up against another.”

Courtroom defeat won't stop Utah in roads fight

By Amy Joi O'Donoghue
KSL.com

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

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

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

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

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

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

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

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

The issue

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

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

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

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

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

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

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

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

Important for upcoming cases

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

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

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

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

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

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

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

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

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

Cook continues Johnson Valley legislative efforts

Jose Quintero
Desert Dispatch

WASHINGTON • Rep. Paul Cook took another step this week toward permanently protecting the Johnson Valley Off-Highway Vehicle Recreation Area by introducing a bill that would give the land a special federal designation.

Cook, R-Apple Valley, announced in a news release Thursday that he had introduced H.R. 4371, which would make Johnson Valley the first national off-highway vehicle recreation area.

Cook, who represents the High Desert in the 8th Congressional District, announced last year that he had helped engineer a compromise that would save nearly 100,000 acres of the off-roading area, including the famed Hammer trails.

A portion of Johnson Valley is explicitly designated for off-highway vehicle use under last year’s deal negotiated with the Marine Corps. Cook, a retired Marine, says federally designating the area will ensure continued off-road access. Cook says the designation might seem like a small change, but it’s an important step to keeping the land under the authority of the Bureau of Land Management.

“It will show that Johnson Valley is of national significance, raising its profile for economic purposes and within the federal government, which owns the land,” Cook stated in the release.

The BLM estimates that Johnson Valley currently generates more than $71 million annually for local economies, according to the release. The King of the Hammers race alone draws an estimated 30,000 people to Johnson Valley each year.

“I’m proud to have been a part of the national campaign to save Johnson Valley last year,” Cook stated. “Johnson Valley is a national treasure and this bill formally recognizes it as such.”

A roaring triumph for public access

Fabio Manno's buggy runs the course of the 4 Wheel Parts Time Trials on Tuesday, February 4, 2014. King of the Hammers event, an off-road race that combines desert racing and rock crawling on Means Dry Lake at Johnson Valley. A last-minute compromise last year saved this event after the military pushed to take this land for training. (KURT MILLER/STAFF PHOTOGRAPHER)

BY DAVID DANELSKI
Riverside Press-Enterprise

JOHNSON VALLEY -- They crawled up almost-vertical boulder piles. They floored it across the flats. Some of them flipped, and at least one rolled and bounced across the desert floor before settling in a burst of flames.

They are competitors in King of the Hammers 2014, an extreme off-road race in the San Bernardino County desert in which rugged terrain is the worthiest adversary. But this year’s event in Johnson Valley is much more than a week-long contest of machines, drivers and nerves — it is a triumph for public access.

More than four years ago, the world’s most formidable force — the U.S. military — announced plans to take over this off-roading mecca as part of a 424,000-acre expansion of the Twentynine Palms Marine Corps Air Ground Combat Center.

The same remote valleys and peaks that make for a challenging race course are a perfect venue for live-fire training exercises for tank battalions, the Marines said.

Many figured the base expansion was a foregone conclusion to be made in the interest of national security. And it would be tough luck for some 200,000 people who hauled their motorcycles, jeeps and four-wheelers each year to Johnson Valley, a designated off-roading area southeast of Barstow and north of the San Bernardino Mountains.

But the off-roaders rallied in force. They signed petitions, attended public meetings, submitted written comments and gained support from elected officials. Environmentalists also wanted the off-road area to stay open, so fewer off-roaders would be tempted to disturb sensitive wildlife habitat elsewhere in the Mojave Desert.

The Department of Defense agreed to a compromise.

Under a law approved by Congress in late December, 99,870 acres will remain part of the Johnson Valley Off-Highway Vehicle Recreation Area, open to the public and under the jurisdiction of the U.S. Bureau of Land Management. The Marines can use about 56,000 acres of the valley for training twice a year, for a total of 60 days.

On Tuesday, Feb. 4, the victory meant that 7,000 people could be there to witness qualifying rounds for the 100-mile-plus King of the Hammers. Organizers expected the crowds to swell beyond 40,000 for the final race on Friday.

VIDEO: Car crashes, flips at King of the Hammers

“It’s just great,” said John Miller, 62, of Running Springs, standing at his dusty campsite with the race roaring in the background. “I am not against the military, but there is a lot of land where they can do their stuff.”

“We’re just getting ready to head up there and watch,” he added. “We have one, two, three generations here,” he added, pointing to himself, his son, Trevor, 38, and his grandson, John, 11, who sat on a 65cc Kawasaki mini-motorcycle.

Trevor Miller said he and his son get to Johnson Valley at least two or three times a year. “It’s always families out here,” he said.

A short ride away, Raul Vega, 33, of Orange, sipped beer from a can as he watched one driver after another attempt to climb a rock-face peak dubbed “The Waterfall.”

“We are happy to see it stay here,” Vega said of the Hammers event. “I took my vacation time to be here. This is one thing I plan for all year.”

His friend Kurtis Magargee, 22, of Yorba Linda, added that participants take care to leave the valley as they found it. Many will spend Saturday, the day after the races, picking up cans and trash. Race organizers have shovel-equipped vehicles ready to scoop up motor oil if it should spill, he added.

Magargee and hundreds of other spectators cheered as one driver attempted to power up The Waterfall, only to slowly roll upside down. It took two vehicles with winches to right the buggy so the trials could resume.

Racer Kevin Sacalas and his co-pilot, Tim Carlson, both of Riverside, had one of the more spectacular crashes. After bumping down a steep hill, they were picking up speed across the flats when their buggy flew out of control and flipped end over end five times before landing in a brief spout of fire. Sacalas wasn’t hurt, and Carlson had only scratches, according to Sacalas’ brother, Robert.

The vehicle, the “Big Ugly,” was a total loss, Robert Sacalas said.

Racers can spend as much as $250,000 to build one of the specialized machines from the ground up, explained driver Crystal Crowder, of Ridgefield, Wash., who was watching this year because her rig needs work.

Just being there was a big win, she said.

“Public land should stay public,” she said. “And this ultimate off-road race is the best in the United States.”

OFF ROADING: Pact mostly preserves Johnson Valley for recreational use