The U.S. 10th Circuit Court of Appeals has issued a split decision on the Burr Trail: Environmentalists won on a central claim when the court ordered an environmental assessment of planned road work, but they lost a more important point.
Garfield County was upheld in its contention that it does not need a permit to grade and widen the road, as it has a valid right of way across federal land. And it got the go-ahead for improving stretches of the dirt road that neither border wilderness study areas nor would affect them.The partial victory may be somewhat hollow for the conservationists. Parts of the wilderness study areas beside the road, including spectacular Long Canyon, were graded by nine county bulldozers after an initial ruling in the county's favor by U.S. District Judge Aldon J. Anderson.
After the bulldozers ripped out trees and other vegetation, Anderson ordered the work halted while conservationists appealed.
"We're not able to make any public comments until we receive the decision in the mail," Garfield County
Commissioner Louise Liston said Monday.
Salt Lake environmentalist Rodney Greeno called the circuit court decision an "enormous threat to the public lands" because western counties claim rights of way to thousands of miles of roads over Bureau of Land Management land. Most of the 66-mile Burr Trail - which connects Boulder, Garfield County, with Bullfrog, Kane County - is on BLM land.
Parts of the trail are badly washboarded, and in Capitol Reef, the route winds perilously through steep switchbacks that wash out during bad storms.
Early last year, Garfield County decided to undertake extensive roadwork - short of paving but reserving the right to pave later. This proj-ect would cover the eastern 28 miles of the route, from Boulder to Capitol Reef National Park.
Four environmental groups filed suit in February 1987, saying the project needed an environmental assessment and a government permit.
Late last year, after a lengthy trial, Anderson ruled that Garfield County held a valid right of way and could improve the road in a reasonable manner.
That decision is now overturned, in part. An environmental assessment is needed for roadwork affecting wilderness study areas.
But the appeals court ruled that work on stretches of the road project not affecting the wilderness study areas, about half the project area, can begin.
In his decision, Anderson said no environmental impact statement would be required because previous studies were "the substantial equivalent" of one.
The three-judge appeals panel contradicted him. "The studies in this case are not the functional equivalent of an EIS," they ruled.
On the question of whether the project is a major federal action and thus requires a formal environmental review, the appeals court held:
"The project in this case runs 10 miles along one WSA (ilderness study area) and 12 miles along another, with some sections affecting both. It involves realignments, widening, considerable blasting and significant improvement in the quality of the road surface and large increases in future traffic.
"Surely that much work is a major project."
The opinion was written by Judge James K. Logan. The other members of the panel that heard the appeal were Judges James E. Barrett and Stephanie K. Seymour; Barrett dissented from the majority finding.
Patrick Fisher, deputy clerk of the U.S. 10th Circuit Court of Appeals, Denver, quoted the 60-plus-page ruling as saying, "We order the district court to remand to BLM for an environmental assessment, to be followed either by a finding of no significant impact or an environmental impact statement."
That means the BLM is forced to go through a formal environmental assessment process. Then, assuming the bureau decides there would be no significant impact to the environment, work could begin - if not thwarted by an appeal on the adequacy of the assessment.
On the other hand, if the assessment concludes there would be significant impacts, a full-blown environmental impact statement would be required. EIS reports can take a year or longer to prepare.