State Agency to Lawmakers: BLM Right-of-Way Rules can Only be Solved with Lawsuits

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Kathleen Clarke, Coordinator for the Public Lands Policy Coordination Office (PLPCO), appeared before the Natural Resources, Agriculture, and Environment Interim Committee Wednesday to inform lawmakers that federal government managers at the Department of the Interior, (including the Bureau of Land Management – BLM) had told her that litigation is the only way that the controversies surrounding rural roads and rights-of-way, also known as the R.S. 2477 rule, could be settled definitively.

Last week, Utah Political Capitol reported that the Attorney General’s office informed lawmakers that such lawsuits would be difficult to win.

R.S. 2477 deals with the definitions of existing roads and rights of way in areas now deemed sensitive within wilderness areas as well as other federal land use plans. It is highly combustible subject matter in a red state like Utah where more than 20 million acres fall under federal jurisdiction and where the newest sagebrush rebellion is in full, four-wheel drive.

During appropriations in the last legislative session, up to $2 million in state funds were authorized for Clarke to use as the new Lands Policy Director to address BLM decisions.

Several stakeholders wondered if the funds would be used for compliance and mitigation in the case of the Greater Sage Grouse and its pending listing under the Endangered Species Act, or if it would be used for litigation. As Utah pursues its effort to have public lands returned to the state for local administration, the effort at managing the Greater Sage Grouse critical habitat is even more potent. With at least two other attorneys working with Clarke, many wonder if any funds will be directed to mitigation.

Utah Political Capitol reported on those developments which surfaced at a stakeholder meeting at the Department of Natural Resources office last February. It is worth noting that PLPCO’s state-sponsored website says nothing about the federal government’s rejection of the agency’s plan.

Most of Clarke’s testimony Wednesday centered upon the efforts that PLPCO is making through the legal process that will eventually decide local land use as well as specific activities that will be allowed on these lands. Over the past three years, the mandatory public comment period at the Richfield BLM office took up the R.S. 2477 issue which, in turn, decides much of the local control definitions in its resource management plans.

Many of the people of Central Utah want to see adjacent public lands allow more ATV trails in the rural part of their state where mechanized recreation for hunting, fishing, and general outdoor enjoyment qualifies Sevier and Piute Counties as “gateway destinations.” When the BLM initiated rules which restricted activities by closing what many locals deemed legitimate ATV trails, citizens demanded action.

Between May and August of 2012, 21 of 29 Utah counties have initiated lawsuits naming the United States as responsible for adjudicating these R.S. 2477 rights of way and definitions, thus creating “cases and controversies” required by the federal courts.

Clarke told the committee that a recent ruling by the 10th Circuit Court stated that “permitted users” (i.e.: entities holding permits for grazing, mining or oil and gas leaseholders), do not qualify for standing as ‘the general public.'” She characterized the ruling as a setback to Utah’s interests but not a fatal one. “It will diminish the amount of witnesses we can use, and we have requested an “en banc” (a case before the entire 10th Circuit bench) review [of that ruling] on file for that.” Presently, access has been granted to the counties to use some of the roads, but not all as originally expected.

The roads involved in these suits are being filmed by Clarke’s office so that the court may have actual photography of the roads in question rather than abstract descriptions based on mapped data, Clarke mentioned. “It will be very unreasonable to expect a judge to go out and ride those 12,000 roads or if we have a jury,” Clarke stated, and the video evidence from Garfield county was shown to the committee. Currently active cases include Salt Creek in Canyonlands National Park, Hole-in-the-Rock outside of Moab, and various surveys in Garfield County.

Clarke said that the state doesn’t plan to go over the $450,000 budget setup for a “cost-benefit” analysis related to any lands transfer agreement. Funds were authorized on the notion of transferring the lands now administered by the BLM which amount to more than 60 percent of Utah’s total acreage. The proponents of such a takeover have said that there is no date certain involving the transfer, only that the state move in that direction in accordance with law passed in prior legislative session.

“Were those lands transferred to state ownership, we have every expectation that these lands would continue to be administered as ‘public lands,’” said Clarke in a recent interview. “The theory that is driving [Utah’s] action is that the federal government was supposed to dispose of these lands.” She has said that she doesn’t believe that Utah wants to pay a market value for the land in question and that “…this is not a uniquely Republican or Democrat idea. Former Governor Matheson attempted to negotiate this during the original sagebrush rebellion.”

When asked if additional stakeholder conferences would be fruitful at this stage. “We would hope that an increased dialogue between the [stakeholders] is something we can look forward to,” Clarke said. Chairman Mike Noel asked Clark and her staff to return during the committee’s July session for futher reporting.

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