Bureau of Land Management officials failed in their duty to protect wilderness study areas bordering the Burr Trail; as a result, late last year Garfield County ripped through those special areas with its bulldozers.
Although four environmental groups lost on the larger issue of whether counties must get permits to improve old (pre-1976) roads that cross federal land, this week the U.S. Tenth Circuit of Appeals upheld them on the claim that environmental studies are required for road work that would impact wilderness study areas.The North Escalante Canyon and Steep Creek wilderness study areas border the trail for at least 12 of the 28 miles where Garfield County wants to do road work. For these stretches, the BLM must write an environmental assessment, the court ordered.
If, at the end of this study, the bureau decides there would be no significant impacts, work could begin there - if not hung up by an appeal.
But 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.
In either case, by law the public must be involved, itself a major switch.
The Federal Land Policy and Management Act requires that to protect wilderness study areas (WBAs), the Interior Department "shall . . . take any action required to prevent unnecessary degradation of the lands and their resources."
This applies to all uses, including valid rights such as Garfield County's right to upgrade the trail.
The Tenth Circuit said that "when a proposed road improvement will impact a WSA, the agency has the duty . . . to determine whether there are less damaging alternatives, and it has the responsibility to impose an alternative it deems less degrading," although it can't forbid the project.
It also said federal agencies must "perform this hard look before committing themselves irretrievably to a given course of action, so that the action can be shaped to account for environmental values."
In December, in the very WSA stretches where impacts will now be studied, Garfield County ripped through miles of underbrush and road shoulder, destroying the original character of the rural road.
The sequence was this:
The BLM decided the county was to have a free hand, even though the route crosses both ordinary BLM land and wilderness study areas. As soon as Garfield won an initial court victory last December, the county launched its bulldozer assault.
That was before environmental groups had a chance to appeal. A few days later, U.S. District Judge Aldon J. Anderson halted the work, pending appeal. But a great deal of damage was inflicted on the study areas.
Undoubtedly, it would have been worse had not some saboteur ruined the bulldozers' engines. Grant Johnson, Boulder, was charged with the crime; it's not up to this column to decide who was guilty then. But it is clear who was guilty of mechanized damage to wilderness study areas - the county and the BLM.
"The adjoining lands will give way, according to the opinion at least, to the right to build the road," said Wayne Petty, Salt Lake City, one of the environmentalists' lawyers, "but only to the degree that the road work doesn't unnecessarily or unduly degrade the wilderness study areas."
That's the purpose of the environmental assessment and the EIS that will inevitably follow - to prevent unnecessary degradation.
"I think that it's pretty clear that the work has got to be done in such a way that there are minimal intrusions into the adjoining wilderness study areas," he said.
Lori Potter, Denver, another lawyer for the environmentalists, said the decision shows that the National Environmental Policy Act, and its resulting studies, must be brought into the picture.
Will the assessment make any difference?
"I think that depends on whether the BLM takes its job seriously," she said. The BLM may recommend mitigation measures in the WSAs, "and the county would have to agree to do them."
Road work in the WSAs could have been less-damaging, she said. "Part of the purpose of NEPA (the National Environmental Policy Act) was to study first and act afterwards, and the county violated the spirit of the law by acting first."
The Sierra Club didn't make up NEPA. It was there, on the books for the BLM and the county to read. It says an environmental assessment is required before any serious impacts to these special areas.
Wilderness study areas were designated pursuant to an act of Congress. They were set aside as potential wilderness, a decision Congress alone will make.
The BLM, Garfield County, and their friends had better get serious about the law.