Staircase roads may hinge on 'plan'

A dispute over roads in Grand Staircase/Escalante National Monument may hinge on the question of whether a plan is a final agency action.

Concluding a hearing that lasted several hours Monday, U.S. District Judge Bruce S. Jenkins asked lawyers for both sides to submit memos on that query. The case involves claims by Kane and Garfield counties that the management plan for the monument should be reviewed. The counties say that in writing the plan, the Bureau of Land Management ran roughshod over county claims to roads under the Civil War-era RS2477 statute.

The law allowed routes across federal land to become county roads under certain conditions.

Attorneys for the federal government and environmentalists point out that the plan says road closures and other actions are subject to valid existing rights. They contend that four routes whose claims have been adjudicated are marked as open, and that it is the county's burden to prove any other road claims in the monument.

Another issue the case raises is that the BLM attempts to regulate the type of vehicles that can use county roads, because of worries off-road vehicle drivers won't stay on the routes. Also, water rights are cited with county officials saying they should have the right to pipe water across the monument.

Tom Snodgrass, a Justice Department lawyer from Washington, D.C., said the suit should be dismissed because the counties have had plenty of time to litigate any unresolved road claims dating from before the RS2477 statute was repealed 30 years ago. Nothing in the Federal Land Management and Policy Act of 1976 requires the BLM to inventory all possible routes on its land and decide if they have valid RS2477 rights of way, he said.

Four routes are involved where rights of way were established across the land, "and all of these roads are identified as open" on the BLM's transportation map, he said.

The BLM's plan says it will recognize all valid rights of way, Snodgrass added.

Because the counties can't point to any concrete injury because of the plan, their suit should be dismissed, he said. Instead, Snodgrass said, they want to use the court as "a forum" for defining every possible route in the monument.

Shawn T. Welch, a Salt Lake attorney representing the counties, said the government did not follow proper procedure in writing the management plan for the 1.8-million-acre monument. The BLM knew of the counties' claims on other routes, he said.

He said requires the federal government to make its plans with state and local interests as much as practical. But BLM officials paid little attention to counties' road claims when writing the plan, he said.

The plan became final when signed by then-Interior Department Secretary Bruce Babbitt, he said. It is a final action that can be reviewed by court, according to Welch.

Jenkins pressed lawyers to show where in the law a plan is defined as a final action. He asked both sides to prepare memos on the issue, and reserved a decision until he has studied the pleadings.

---

E-mail: bau@desnews.com