Wrongful Closure of the Paria River Road in Kane County, Utah by Federal Employees in 2009 - Justification to Re-Open the Paria River Road - Resolution of Western Revised Statute 2477 Conflict, Including Costly Quiet Title Litigation
March 31, 2018
2018 Report prepared by Mark Habbeshaw, former Kane County Commissioner, 2003-2011 (during the time of the issues discussed in this report)
Requested action: It is respectfully requested that Department of the Interior (DOI) Secretary Ryan Zinke and/or Bureau of Land Management (BLM) Director Brian Steed, in agreement with the facts of this report, direct the BLM Utah State Director Ed Roberson, Grand Staircase Escalante National Monument (GSENM) Manager Harry Barber and Kanab BLM Field Office Manager Whit Bunting to fully rescind and revoke the 2009 BLM management decision to physically close, barricade and place restrictive signing obstructing public travel on the Paria River Road (Kane County transportation system road number K6200) and that GSENM/BLM employees be directed to no longer threaten to federally prosecute the public for traveling the county road with motor or mechanized vehicles.
It is also requested that Secretary Zinke and/or BLM Director Steed rescind BLM Acting Director Ron Wenker’s February 20, 2009 agency-wide directive on Revised Statute 2477 (R.S. 2477) roads and its attached Instruction Memo Dated August 8, 2008. The directive orders all BLM employees to suspend all work on any R.S. 2477 claims.
Secretary Bruce Babbitt’s improper 1997 R.S. 2477 Policy attempting to eviscerate established R.S. 2477 rights should also be finally revoked in its entirety. It exits today as the cornerstone of federal abuses regarding R.S. 2477 rights-of-way (ROW).
Previous, lawfully-based, DOI and BLM R.S. 2477 regulation, directives and policy decisions (i.e. Hodel and Norton) should be reviewed in developing new, fair and reasonable, R.S. 2477 policy under the Trump/Zinke administration. The new lawful policy is necessary to correct current federal policy, advocacy and an institutional bias to defeat all vestiges of congressionally granted R.S. 2477 ROW which are valid existing rights (VERS) under the law.
Correcting past and ongoing abuses described in this report should begin with legally-based “administrative determinations” predicated on existing law (Act of July 26, 1866, FLPMA, presidential proclamations, etc.) and case law established in previous R.S. 2477 cases (as provided in this report). Equitable “administrative determinations” regarding the existence of R.S. 2477 ROWs should be required in all DOI and BLM administrative decisions and planning actions.
Settlement of the long-standing, costly, burdensome quiet title litigation in Utah should be resolved or significantly reduced through the implementation of properly conducted “administrative determinations” or by Recordable Disclaimers of Interest (RDI).
Paria River Road (Kane County road number K6200)
The Paria River Road is the most iconic backcountry road in Kane County. To local residents and to many motorized recreationalists throughout Utah and beyond it is even more iconic than the well-known Hole-in-the-Rock Road located in eastern Kane and Garfield Counties. Until it was summarily closed it was the premier off-highway route in Kane County and perhaps southern Utah.
The importance of the road is demonstrated by the fact that days prior to BLM’s physical closure of the road over three hundred (300) OHV enthusiasts participated in a protest ride over the entire length of the road, most travelling both directions of the 25-mile road in Jeeps, trucks, 4X4s, ATVs, side-by-sides and motorcycles.
Further evidence of the importance of the road is the May 2017 Kane County Commission Resolution: “A Resolution to Save Access to The Paria Canyon.” Resolution R-2017-10 was provided to DOI and BLM in support of reopening the Paria River Road (Resolution attached to this report) and the Kane County Commission’s letter to Whit Bunting, BLM FO manager and Harry Barber, GSENM Manager dated March 19, 2018 formally requesting that all obstructions preventing access to the Paria River Road be removed based on several points discussed in the letter. The letter was copied to Secretary of the Interior Ryan Zinke, BLM Director Brian Steed and to the Utah Congressional delegation (letter attached to this report).
History of the Paria River Road
The Paria River Road was established in accordance with Congressional intent in establishing R.S. 2477 ROWs in order to facilitate settlement of the West.
The Paria Canyon (aka Pahreah) was first settled in 1865 by a Mormon group led by Peter Shurtz (Shirts). This early settlement was named Rockhouse. After the end of the Black Hawk War in 1867 settlers began to arrive at a rapid pace. Farming produced good crops but flooding and irrigation were always a problem. In 1870 half of the settlers moved about five miles upstream and founded the town of Pahreah.
Pahreah grew through the 1870s with a general store, a church, a number of sandstone houses and many log houses. The population grew to 47 families. By 1873 the Paria River Road was established as the main thoroughfare between Salt Lake City and Lee’s Ferry, Arizona. Severe flooding in the 1880s caused people to move away. By 1892 only about 8 families remained, however, the town was granted a post office that year under the name “Paria.” A gold mining operation was developed in 1911. The post office closed in 1914 and after a lone-prospector left the area in 1929 the Paria Canyon was empty of full-time residents. A pioneer graveyard exists today adjacent to the Paria River Road.
The Paria River Road was established by travel, both north and south, to other pioneer settlements for purposes of individual and family travel, livestock management, freight wagon commerce, mining, hunting, logging and all other uses common to pioneer settlement. Motorized travel on the Paria River Road for various purposes continued until BLM employees physically closed and barricaded the road in 2009.
Kane County has abundant documentation supporting the Paria River Road as an established right-of-way across federally managed lands prior to the designation of the Paria-Hackberry Wilderness Study Area (WSA) and the GSENM and can readily supply the evidence for federal administrative or planning purposes.
Summary of the Wrongful Actions by GSENM Manager Rene Berkhoudt, BLM State Director Selma Sierra, Acting BLM Director Ron Wenker and by Secretary of the Interior Ken Salazar in Physically Closing, Barricading and Threatening Federal Prosecution for Anyone Violating Their Closure of the Road.
It is important to attach individual responsibility for these wrongful actions to those named above and to others involved in the road closure decision and implementation. Their actions are, unfortunately, representative of wrongful actions presently rampant within DOI and BLM. For this reason and for brevity, references to federal agencies such as DOI and BLM are actually directed to the individual department or bureau employees taking the action. Wrongful actions are taken by specific individuals within the agency – not the agency itself.
1: Federal employees claimed a “misunderstanding” as to whether the county asserted a R.S. 2477 ROW within the Paria Canyon when it knew the county had long asserted its ROW. The existence of the county’s highway rights made no difference to GSENM Manager Rene Berkhoudt and BLM State Director Selma Sierra’s intention to physically close the county road under the policies and direction of Acting BLM Director Ron Wenker and DOI Secretary Ken Salazar.
2: Federal employees failed to process, or even consider, the county’s non-binding determination (NBD) submitted under existing DOI policy (see Sec. Norton’s Instruction Memorandum 2006-159 Titled “Non-Binding Determinations of R.S. 2477 Rights-of-way Claims”). The NBD request was submitted significantly prior to the physical closure of the road.
3: Federal employees failed to comply with President Clinton’s Proclamation establishing the GSENM or with the GSENM Management Plan in respecting the county’s valid existing rights (VER) (see GSENM Proclamation and GSENM Management Plan, footnote, page 46).
4: Federal land managers failed their congressionally mandated duty under the Federal Land Policy and Management Act (FLPMA), section 701h which states, “All actions by the Secretary concerned under this Act shall be subject to valid existing rights.” They also failed their duty under section 701a which states, “Nothing in this Act, shall be construed as terminating any valid...right-of-way...existing on the date of the approval of this Act.”
5: Federal employees failed to comply with 10th Circuit case law which held that “Both levels of government have responsibility for, and a deep commitment to, the common good, which is better served by communication and cooperation than by unilateral action.” (emphasis added).
6: Federal employees violated FLPMA, NEPA and the CEQs which requires consistency with local planning (Kane County General Plan and transportation system planning) in failing to properly consult with the county regarding the existence of R.S. 2477 ROWs in the formation and management of the GSENM’s transportation system.
7: Federal employees violated 10th Circuit Case law (Hodel, 848 F, 2d at 1081) in failing to honor the “status quo” established by congressional policy “freezing” R.S. 2477 ROWs as of the uses established as of October 21, 1976.
8: Federal employees ended a good working relationship, as it existed between the county and previous GSENM Manager Brad Exton.
9: Federal employees ignored the results of a county/GSENM field trip along the Paria Canyon a year previous that found no damage to resources and resulted in mutual agreement that there was no need for mitigation or closure of the Paria River Road. Unfortunately, monument management changed after the field trip.
10: Federal employees considered a strongly-worded letter from a single member of Congress from another state, reportedly threatening DOI funding if the road was not physically closed. This was an inappropriate influence on the decision to close the road.
11: Federal employees violated the Freedom of Information Act (FOIA) by refusing to respond to or provide any information or documents in response to the county’s FIOA request seeking documents related to the physical closure of the Paria River Road.
12: Federal employees falsely claimed the Paria Canyon was never open to motorized travel within the Paria-Hackberry Wilderness Study Area (WSA). This claim is rejected by documentation and photographic evidence to the contrary. (see photograph attached to this report).
History of Revised Statute 2477 (R.S. 2477)
In 1866, Congress passed an open-ended grant of “the right of way for the construction of highways over public lands, not reserved for public uses.” Act of July 26, 1866, ch. 262, S 8, 14 Stat. 251, 253, codified at 43 U.S.C. S 932 (R.S. 2477), repealed by Federal Land Policy Management Act of 1976 (FLPMA), Pub.L. No. 94-579 S 706(a), 90 Stat. 2743.
Although repealed by FLPMA, Congress preserved R.S. 2477 ROWs in sections 509(a) and 701(a)(h). FLPMA Section 701(a) states, “Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid...right-of-way...existing on the date of approval of this Act.” FLPMA Section 701(h) states, “All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”
Congress included R.S. 2477 ROWs in the Mining Act of 1866 in order to facilitate settlement of the west through the development of public highways across federally managed lands. Virtually every local and state transportation system in the west relies on highways created along congressionally granted highway easements (R.S. 2477 ROW) across federally managed lands.
DOI Secretary Bruce Babbitt Created Today’s Conflict Over Local and State Highways Across Federally Managed Lands, Including Burdensome and Costly Litigation Over R.S. 2477 ROWs
The management of non-federal highways (R.S. 2477 ROWs) across federally managed lands historically created little conflict between the federal government and state and local governments.
However, on January 22, 1997 DOI Secretary Bruce Babbitt “revoked” DOI’s prior policy regarding R.S. 2477 ROWs, which form the bulk of the rural transportation network in the western states. The revoked policy (the “Hodel Policy”) set forth by Secretary Donald Hodel in December of 1988 was an attempt to reflect long-established law regarding these ROWs, which are typically owned and managed by state and local governmental entities. Because of its reasonable approximation to the law, the Hodel Policy encountered little opposition.
By contrast, the Babbitt memorandum set policy which is inconsistent with established law and created an approach which is clearly designed to diminish or do away with rights conferred under R.S. 2477. The Babbitt memo set forth an illegal policy, of simply not recognizing any R.S. 2477 ROWs. Unfortunately, Secretary Babbitt’s policy is still being carried out today at all levels of DOI, BLM and DOJ (R.S. 2477 attorneys). DOI employees have been largely successful in creating a new paradigm by confusing and intimidating ROW holders and have (unfortunately) been somewhat successful in their attempt to defeat R.S. 2477 ROWs across the West.
Bald Knoll Quiet Title Litigation and Favorable Adjudication for Kane County and the State of Utah
Federal employees within DOI and BLM do not recognize a single R.S. 2477 ROW in the United States, other than the roads adjudicated in favor of Kane County in the Bald Knoll quiet title case. In that case the county won quiet title to the Bald Knoll Road, the Skutumpah Road, the North Swag Road and several other roads. It is important to note that the North Swag Road is located in the same Paria-Hackberry WSA as the Paria River Road (indicating the likelihood of success for the Paria River Road through quiet title action). The steadfast refusal to recognize any R.S. 2477 rights in the nation is a wrongful and abusive use of federal authority given the statutory law, case law, regulations, previous policy and the proclamation cited in this report.
In about 2005 GSENM employees issued an environmental assessment intending to issue a FLPMA Title 5 permit to a private citizen over the Bald Knoll Road, a county R.S. 2477 ROW. The county responded by pointing out that GSENM employees lacked authority to take that action and the county requested the GSENM manager process a Non-Binding Determination (NBD) under DOI Secretary Norton’s policy in effect at the time. The county submitted documentation supporting the history of the road as a VER.
After approximately three years of unnecessary delay the county filed quiet title action in federal court. (It should be noted that this failure was identical to BLM employees Rene Berkhoudt and Selma Sierra’s failure to process the submitted NBD for the Paria River Road). After several years of obstruction and delay by federal attorneys, U.S. District Court Judge Clark Waddoups adjudicated several roads in favor of the county. These were the first roads fully adjudicated as R.S. 2477 ROWs in the nation.
The federal opposition to a reasonable resolution of R.S. 2477 jurisdiction (via NBD, RDI or by expedient quiet title resolution) is a direct outcome of Secretary Babbitt’s policy to ignore and defeat R.S. 2477 rights. It also evidences a continuation of that direction long after Babbitt’s departure. The bureaucratic advocacy (to eliminate R.S. 2477 VERs) is manifest in all levels of federal land management agencies and is openly demonstrated by DOJ attorneys assigned to quiet title litigation.
Details Substantiating the Wrongful Physical Closure of the Paria River Road Kane County Road Number K6200
The Kane County Commission was advised of the eminent physical closure of the Paria River Road by Acting Monument Manager Berkhoudt only days before closure implementation. No coordination or consultation with the county occurred beforehand. The Commissioners were advised that the road would be signed as closed to motorized travel and that it would be barricaded. Thereafter, any motorized travel on the road would result in federal prosecution. The County Commission understood that the Wilderness Society (TWS) and the Southern Utah Wilderness Alliance (SUWA) initiated the action to close the Paria River Road when it wrote a letter to BLM demanding the physical closure of the road. The Commission also understood TWS and SUWA were successful in generating a letter from Congressman Norm Dicks (D-WA) threatening DOI funding if BLM did not physically close the Paria River Road.
Federal employees publicly claimed a “misunderstanding” as to whether Kane County asserts an R.S. 2477 ROW within the Paria Canyon, although the employees knew the county has long asserted R.S. 2477 rights for the Paria River road. The County re-advised BLM employees that it does claim an R.S. 2477 public highway ROW for the Paria River Road, which travels from Skutumpah Road, through Sheep Creek Canyon, and through Paria Canyon to its terminus at Cottonwood Road. Preliminary documentation supporting the establishment of a public highway right-of-way along the Sheep Creek and Paria Canyons prior to October 21, 1976 was provided to both Utah State Director Sierra and the GSENM Manager Berkhoudt prior to the road’s physical closure. However, BLM employees continued to publicly claim a” misunderstanding” in explaining why the road was being closed in spite of the county’s R.S. 2477 ROW along the road.
The county formally requested State Director Sierra carry out a timely Non-Binding Determination (NBD) (Norton Policy) to determine whether the county had R.S. 2477 jurisdiction over the Paria River Road prior to BLM employees taking action that could impair the rights of the county through improper use of BLM’s authority.
The county’s request for a NBD was consistent with DOI policy. Secretary Norton’s Instruction Memorandum Number 2006-159 titled “Non-Binding Determinations of R.S. 2477 Rights-Of-Way Claims” states:
“Summary of Guidance: As the Secretary’s Memorandum and SUWA v. BLM make clear, the BLM does not have the authority to make binding determinations on the validity of R.S. 2477 right-of-way claims. The BLM may, however, make informal, non-binding determinations for its own land use planning and management purposes. An NBD is required before completing consultation with states or counties on any proposed improvements to a claimed R.S. 2477 right-of-way. It may also be appropriate to complete a NBD before taking action to close or otherwise restrict the use of a claimed R.S. 2477 right-of-way.” (emphasis added). Secretary Wenker (under President Obama) subsequently rescinded Secretary Norton’s reasonable NBD Policy.
The Monument Plan was consistent with the county’s request in stating: “It is unknown whether any R.S. 2477 claims would be asserted in the Monument which are inconsistent with the transportation decisions made in the Approved Plan or whether any of those R.S. 2477 claims would be determined to be valid. To the extent claims are made, the validity of those claims would have to be determined. If claims are determined to be valid R.S. 2477 highways, the Approved Plan will respect those as existing rights.” (emphasis added). (see footnote 1, page 46, GSENM Management Plan).
FLPMA would appear to require an administrative decision prior to department employees taking adverse action. Section 701(h) states: “All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”
FLPMA Section 701(h) creates a congressionally mandated duty upon DOI employees to protect valid existing rights.
The county requested federal employees consider recent case law that applied directly to their intention to physically close the Paria River Road. The 10th Circuit Court of Appeals in deciding Southern Utah Wilderness Alliance v. Bureau of Land Management (SUWA v. BLM) recognized that “Both levels of government have responsibility for, and a deep commitment to, the common good, which is better served by communication and cooperation than by unilateral action.” The Tenth Circuit, in SUWA v BLM, provided a binding interpretation of BLM’s duties and obligations regarding BLM’s handling of established rights-of-way. The court wrote:
“We therefore hold that when the holder of an R.S. 2477 right of way across federal land proposes to undertake any improvements in the road along its right of way, beyond mere maintenance, it must advise the federal land management agency of that work in advance, affording the agency a fair opportunity to carry out its own duties to determine whether the proposed improvement is reasonable and necessary in light of the traditional uses of the rights of way as of October 21, 1976, to study potential effects, and if appropriate, to formulate alternatives that serve to protect the lands. The initial determination of whether the construction work falls within the scope of an established right of way is to be made by the federal land management agency, which has an obligation to render its decision in a timely and expeditious manner. The agency may not use its authority, either by delay or by unreasonable disapproval, to impair the rights of the holder of the R.S. 2477 right of way.” (emphasis added)
The Tenth Circuit’s holding also applies in instances where BLM desires to take administrative actions potentially impairing valid existing rights held by the county, such as physically closing the Paria River Road.
When the State and the county accepted the Paria River Road ROW, no entry, no application, no license, no patent, no deed and no administrative formality was required. The grant was accepted by the construction or establishment of a public highway prior to October 21, 1976 in accordance with Utah law. Upon acceptance, Kane County became the vested owner of this public highway right-of-way. The county provided federal employees historic documentation supporting the acceptance of the Paria River Road under R.S.2477 prior to their actions physically closing the Paria River Road.
State Law and the County’s General Plan
Kane County owns interests in, and has legal jurisdiction regarding, class “B” and “D” public highways and the R.S. 2477 right-of-way for such roads that lie within its borders. See Utah Code Ann. §§ 72-3-103-105, 72-5-103-105, and 72-5-302. In Utah a highway is “dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years.” Utah Code Ann. § 72-5-104(1).
FLPMA, NEPA and the CEQs require BLM planning to be consistent with local planning to the maximum extent possible when local planning is consistent with federal law, regulations and policy. The Kane County General Plan states:
“Much of the transportation system developed in Kane County traverses public lands. Until 1976, the development of roads across public lands was authorized by a blanket right of way defined in Revised Statute (RS) 2477. Most such roads were never formally platted or surveyed.”
“Kane County has filed maps showing all roads asserted under the provisions of Revised Statute 2477.”
“Kane County will take the lead in providing a safe, efficient and functional transportation system which emphasizes the circulation of residents and visitors between communities, as well as to the scenic wonders found in the county. The system will stress a wide range of transportation methods and will be founded upon the ability of the county to utilize rights of way on public lands asserted under authority of Revised Statute 2477.” (p.28).
President Clinton’s Proclamation establishing the GSENM on September 18, 1996 states; “The establishment of the monument is subject to valid existing rights.” (emphasis added).
GSENM Manager Berkhoudt, State Director Sierra, acting BLM Director Ken Wenker and DOI Secretary Ken Salazar violated the legal requirement to preserve the “status quo” by adopting Secretary Babbitt’s unlawful R.S. 2477 policy in supporting provisions of the GSENM Management Plan, which states: “...the transportation system described in the Approved Plan will be the one administered in the Monument.” The GSENM plan included a map showing the Paria River Road, along with hundreds of other county roads closed or restricted.
Shortly after the approval of the monument plan, then GSENM Manager Kate Cannon advised the Kane County Commission that she would like to sign some of the roads within the monument “so that people could find their way.” The Kane County Commission agreed to that level of signing. However, shortly afterwards federal signs restricting public travel were posted along county roads. Since the monument plan asserts that all roads not signed are closed, monument employees began harassing anyone travelling on county roads without federal signs posted along the roadways. When the county complained, Kate Cannon advised they would correct the problem. However, the problem was not corrected, in fact, even more restrictive federal signs were installed along county roads. These actions eventually led to the removal of restrictive federal signs, the placement of county signs in conflict with GSENM signs and unsuccessful federal court litigation against the county by TWS and SUWA. The outfall of this litigation is discussed elsewhere in this report.
Had federal employees not initiated action inconsistent with the legal standard to preserve the status quo, the subsequent conflicts, costly lawsuits and ongoing quiet title litigation would not have happened.
The Tenth Circuit recognizes a “status quo” that protects both the public’s existing uses of a road and BLM’s public land management and protection mandates in stating:
“Drawing the line between maintenance and construction based on ‘preserving the status quo’ promotes the congressional policy of ‘freezing’ R.S. 2477 rights-of-way as of the uses established as of October 21, 1976**. Hodel, 848 F.2d at 1081. It protects existing uses without interfering unduly with federal land management and protection.” (emphasis added).
The Tenth Circuit recognized BLM’s earliest (lawfully-based) R.S. 2477 regulations: “The grant [under R.S. 2477] becomes effective upon the construction or establishing of highways, in accordance with the State laws, over public lands not reserved for public uses. No application should be filed under said R.S. 2477 as no action on the part of the Federal Government is necessary.”
The Tenth Circuit reasoned, “In sum, nothing in the terms of R.S. 2477 gives the BLM authority to make binding determinations on the validity of the rights-of-way granted thereunder....” (emphasis added). The Tenth Circuit clarified BLM’s authority as follows:
“This does not mean that BLM is forbidden from determining the validity of R.S. 2477 rights-of-way for its own purposes. BLM has always had this authority. It exercises this authority in what it calls “administrative determinations.” ... These procedures “are not intended to be binding, or final agency action.” Rather, “they are recognitions of ‘claims’ and are useful only for limited purposes,” namely, for the agency’s internal “land-use planning purposes.”
The Tenth Circuit further recognized the role of State law in stating:
“Acceptance of an R.S. 2477 right of way in Utah thus requires continuous public use for a period of ten years.”
Regarding “continuous public use”, the Tenth Circuit acknowledged the Utah Supreme Court’s reasoning: “...the road was used by many and different persons for a variety of purposes; that it was open to all who desired to use it; that the use of it was as general and extensive as the situation and surroundings would permit, had the road been formally laid out as a public highway by public authority.”
Regarding the definition of “highway” the Tenth Circuit noted:
“At common law the term “highway” was a broad term encompassing all sorts of rights of way for public travel.” The Court considered an 1868 legal definition, “[a] highway is a way over which the public at large have a rite of passage, whether it be a carriage way, a horse way, a foot way, or a navigable river.”
Regarding “mechanical construction,” the Tenth Circuit reasoned:
“Thus, we cannot agree with the Appellees’ argument that a “mechanical construction” standard is necessary...[t]he common law standard of user, which takes evidence of construction into consideration along with other evidence of use by the general public, seems better calculated to distinguish between rights of way genuinely accepted through continual public use over a lengthy period of time, and routes which, though mechanically constructed (at least in part), served limited purposes for limited periods of time, and never formed part of the public transportation system. We therefore see no persuasive reason not to follow the established common law and state law interpretation of the establishment of R.S. 2477 rights-of-way.”
Regarding a destination requirement, the Tenth Circuit concluded: “It is hard to imagine a road satisfying the “continuous public use” requirement that did not “lead anywhere.” Moreover, given the BLM’s concession that “a highway can allow public access to a scenic area, a trail head, a business, or other place used by and open to the public, it is hard to imagine much of a road that would not satisfy the standard.”
“We therefore hold that, on remand, the district court should consider evidence regarding identifiable destinations as part of its overall determination of whether a contested route satisfies the requirements under state law for recognition as a valid R.S. 2477 claim.”
In Sierra Club v. Hodel, the Tenth Circuit offered additional guidance as follows: Tenth Circuit precedent requires “that the initial determination of whether activity falls within an established right-of-way is to be made by the BLM and not the court.”
The Tenth Circuit further reasoned, “Because the grantor, the federal government, was never required to ratify a use on an R.S. 2477 right-of-way, each new use of the [road] automatically vested as an incident of the easement. Thus, all uses before October 21, 1976, not terminated or surrendered, are part of an R.S. 2477 right-of-way.” (848 F2d at 1084).
Statutory provisions, case law, and DOI/BLM regulations clearly provide BLM the authority to conduct “administrative determinations” considering R.S. 2477 ROWs. BLM has certain duties and obligations related to such a determination. Those duties and obligations clearly extend to circumstances where BLM intends to take agency action that could impair the rights of a holder of an R.S. 2477 ROW.
Kane County formally requested BLM employees conduct an administrative determination as to the existence of the public highway right-of-way for the Paria River Road prior to taking any action adverse to Kane County’s and the State of Utah’s property interests. The county’s request was ignored by BLM employees in physically closing the Paria River Road.
Previous Good Working Relationship
During the tenure of Monument Manager Brad Exton, the county and monument management developed a good working relationship. Monument management and the county, in fact, had successfully embraced the Court’s suggestion that “Both levels of government have responsibility for, and a deep commitment to, the common good, which is better served by communication and cooperation than by unilateral action.” Examples include the county using county road equipment to finish a monument seeding project, and county consultation with monument management regarding the Whitehouse campground environmental assessment in order to avoid controversy over a county road. In fact, the county initiated the process to abandon a portion of the Whitehouse Road as part of the cooperative effort to relocate the campground. The county was also instrumental in coordinating with NRCS related to flooding to acquire FEMA funding to stabilize the Cottonwood Canyon riverbank which was washing away parts of the Cottonwood Road within the GSENM.
The proposed action to close the Paria River Road threated the trust and good working relationship that had developed between the county and monument management. It was also unfortunate that the public was caught up in the controversy caused by improper, unilateral actions by BLM employees. A protest ride up the Paria Canyon along the county’s road, days before the physical closure and blockage of the road is an example of the controversy caused by BLM employees’ improper actions. Unilateral action, without mutual consultation and coordination has compromised the public’s safety and enjoyment of public lands.
Kane County/GSENM Field Trip Finding No Damage Along the Paria River Road and No Need to Close the Road
Previous GSENM Manager Brad Exton and the county discussed the need to work cooperatively to prevent impairment and degradation within the Paria-Hackberry WSA. The Paria River Road lies within the Paria-Hackberry WSA. Monument management and the county participated in a field trip, by horseback, to examine “on the ground conditions” within the Paria Canyon approximately one year before the wrongful physical closure of the Paria River Road. The result of that trip was a consensus of monument management and the county that impairment and degradation were not occurring along the Paria River Road, but that the county and BLM should coordinate through visitor outreach and other efforts to protect the lands adjacent to the main route. The county offered several specific suggestions to collaborate with monument management in that effort.
It is important to note that virtually all of the Paria River Road follows the wide wash bottom of the Paria Canyon below the high-water level. This condition significantly reduces the likelihood of impairment or degradation from vehicle travel along the wash bottom. High-flow flooding scours the wash bottom frequently resulting in significantly more impact along the canyon bottom than motor and mechanized vehicle travel. The county understood that the field trip results were shared with State BLM Director Sierra several months prior to BLM employees’ physical closure of the Paria River Road.
Special Interest Groups and the Supreme Court
The county provided monument management a copy of the Supreme Court decision in SUWA v. Norton. In non-technical language, the decision rejects the ability of special interest organizations to micro-manage BLM or interfere with planning implementation. Plans are adopted for general planning purposes and the manner of their implementation is left to broad agency discretion - not special interest groups. In the physical closing of the Paria River Road it may have gone beyond “micro-management” and likely involved a purposeful collaboration between DOI, BLM and GSENM employees and environmental advocates who all shared a desire to see that the Paria River Road was closed.
The county understands that Congressman Norm Dicks (D-WA) wrote a strongly-worded letter to newly-appointed bureaucrats in President Obama’s DOI, without personal knowledge in the matter and without consulting with Kane County, the State of Utah, or the Utah congressional delegation. Congressman Dicks may have been misled by SUWA and TWS’s representation of the facts. Kane County believes the matter was factually and legally more complex than understood by Congressman Dicks.
It is improper for a single member of Congress to use congressional committee authority to threaten DOI funding if the agency fails to take specific action on a particular Kane County road at the urging of environmental groups. Congress generally acts as a body rather than by single member action. In addition, the Utah congressional delegation should certainly have input regarding action affecting congressionally granted rights-of-way in the State of Utah. The county believes the Supreme Court’s decision in SUWA v. Norton regarding “micro-management” applies to the influence of a single member of Congress in the same manner it applies to members of special interest groups.
Kane County Ignored – Unilateral Federal Employee Action Taken to Physically Close the Paria River Road
The county formally requested BLM employees carry out a timely and expeditious administrative determination to consider whether it agreed that a right-of-way vested for the Paria River Road. The county requested the administrative determination take place prior to BLM employees taking any action that could impair the rights of the county through improper use of BLM’s authority, by unreasonable disapproval, or by delay in completing an administrative determination.
Prior to the physical closing of the Paria River Road the Kane County Commission sent a letter to State BLM Director Sierra with copies sent to the GSENM Manager Berkhoudt and others. The letter explained historic, current and legal issues and requested BLM employees conduct a Non-Binding Determination (NBD) under DOI policy in effect at the time. The county also submitted a FOIA for documents related to the Paria River Road closure. The county also requested the opportunity to discuss the issues involved with the Paria Canyon prior to adverse federal action unilaterally impairing a valid existing right held by Kane County and the State of Utah.
The county never did receive a response from BLM State Director Sierra or GSENM Manager Berkhoudt regarding any of the county’s requests, including the requests for FOIA information, the NBD or the request to discuss the issues. The Kane County Commission did receive a request to meet with GSENM Manager Berkhoudt shortly before the physical closure of the Paria River Road. The only purpose of the meeting was, for the record, to formally advise the County Commission of the eminent physical closure of the road.
A few years prior to BLM employees’ announced closure of the Paria River Road TWS and SUWA filed a federal court lawsuit against Kane County over the county’s management of its transportation system roads, claiming the county was violating the federal government’s sovereignty. The environmental groups had the fortune to draw Federal Judge Tina Campbell, who subsequently ruled that the county had no jurisdiction over roads crossing federally managed lands without adjudication (quiet title). Judge Campbell also issued a restraining order prohibiting the county from taking any action on roads on federally managed land inconsistent with federal planning.
The court’s injunction prevented the county from taking any counter-action on the ground to prevent the physical closure of the road. Judge Campbell’s decision and rulings were subsequently overturned in their entirety by the 10th Circuit Court of Appeals in 2011, therefore ending the litigation and Judge Campbell’s injunction against the county.
BLM Employees Falsely Claim the Paria River Road was Never Open to Motorized Travel Within the Paria-Hackberry WSA
To further support the physical closure of the Paria River Road BLM employees claimed motorized vehicles were never allowed to travel the Paria Canyon within the Paria-Hackberry WSA which was created in 1980. Attached to this report is a photograph taken circa 1999 along the Paria River Road clearly evidencing that the road was designated as open to motorized travel by BLM contrary to their claims to the public.
Early BLM reports support motorized use within the Paria Canyon in stating: The Paria Box (Cockscomb) was excluded (from draft recommendations) to allow for a potential coal haul railroad. (BLM 1986, P10 & P22). The Paria River bed through the proposed wilderness was excluded from the draft recommendations to allow ORV use.... (BLM 1986, P29&32). In fact, a reference on an environmental organization’s web site states: “BLM’s final recommendation would split the unit in two along the Paria River, leaving the river canyon open to ORV use.”
In addition, monument employees did not enforce the monument plan’s closure of the Paria River Road (or any other roads within the monument) until the road’s physical closure in 2009. Monument employees have not enforced the closure of the hundreds of other roads designated as closed or restricted in the monument plan.
The Paria River Road was open to motorized travel from its establishment, circa 1865, including after the establishment of the Paria-Hackberry WSA in 1980 and until monument employees physically barricaded the road in 2009.
Conclusion of Wrongful Closure of the Paria Canyon Road
The facts and law documented in this report indicate that no legal basis exists supporting the continued physical closure and barricading of the Paria River Road or for the continuing threats to federally prosecute anyone operating a motor or mechanized vehicle on the Kane County road.
The Kane County Commission, as the highway authority for the county, has a fiduciary responsibility, under Utah law, to keep all of its transportation system public highways open to public travel.
Since the closure of the Paria River Road in 2009 the county has relied on current quiet title litigation to re-open the Paria River Road. However, the road has been closed for an unreasonable period of approximately nine years, thereby denying access to the Paria Canyon for a significant portion of the public for an extended period of time. It is important to consider that the Paria River Road offers access and premier recreational opportunities to the very young, the very old, the physically limited, war injured military veterans and people with mobility, balance or stamina-related disabilities, in addition to the general public.
Federal attorneys, in apparent cooperation with environmental groups, have frustrated, challenged and delayed quiet title litigation at every opportunity. They have argued that, while the federal government does not recognize R.S. 2477 rights, the courts do not have jurisdiction to decide quiet title cases. A federal court judge recognized that federal attorneys argue: “... if the county wants to challenge management plans it must bring quiet title action, then it has the temerity to contend it is not disputing the county’s right-of-way even though it would not disclaim its interest in the right-of-way and even though it regulated the right-of-way under the management plan.”
These are but two of the many implausible arguments presented in court by federal attorneys in attempts to deny the county and the state any legal recognition of R.S. 2477 rights.
These actions in federal court, as well as the management decisions described in this report, are the continuing implementation of Secretary Babbitt’s unlawful policy of 1997 – do not give any recognition to any R.S. 2477 rights.
A concern is that a quiet title judge might engage in a form of judicial nullification in considering the fate of the Paria River Road if it remains closed for a very long time. A judge, in deference to the long-term closed status of the road, might rule against Kane County and the State of Utah in spite of sufficient evidence affirming a R.S. 2477 ROW was established along the road. In San Juan County, the Salt Creek Road was not favorably adjudicated after being closed to public travel for approximately ten years in a narrowly considered quiet title decision.
Another concern is the fact that it does not appear that quiet title litigation will re-open the Paria River Road any time soon, thus denying public travel on a historic county road for an even greater, unknown period of time.
Proper federal action reversing the wrongful closure of the Paria River Road would alleviate public pressure on the county to fulfill its fiduciary responsibility to keep all transportation system roads open as public highways. If there is no legal basis supporting the physical closure of the Paria River Road the County Commission, as the county highway authority, has a fiduciary obligation, under state law, to take the steps necessary to keep its highways open and free from obstructions.
Most roads in the quiet title litigation have not been physically closed and barricaded due to the federal government’s two-sided arguments in ongoing litigation. The physical closure of roads undercuts the federal position that no case or controversy exists, therefore, the courts lack jurisdiction to decide quiet title cases.
West-wide Issues Regarding R.S. 2477 ROW and the Consideration of Resolving Conflict by the Use of “administrative determinations” or Recordable Disclaimers of Interests (RDI) and Cooperative Quiet Title Settlement
The improper actions described in this report reflect ongoing, wide-spread, wrongful and abusive federal land management actions across America. These wrongful and abusive actions are committed by specific, identifiable administrators, managers, employees and attorneys of DOJ, DOI and BLM who have been able to hide under the bureaucratic cloak of their agency, thus avoiding accountability. Abusive administrators, managers, employees and attorneys, such as the ones identified in this report, should be ferreted out, personally identified and dealt with in an appropriate manner.
Critical to correcting the current wide-spread R.S. 2477 conflict is the complete and total revocation of Secretary Babbitt’s 1997 policy, which was designed to defeat congressionally granted and protected R.S. 2477 ROWs. A modified version of the Hodel Policy would be a start in developing a legally-based policy for addressing R.S. 2477 ROW issues.
Management plans should be rewritten to consider state and local transportation plans and to consider R.S. 2477 ROWs in planning as per the consistency requirement in FLPMA.
A timely and legally-based “administrative determination” or a Recordable Disclaimer of Interest (RDI) policy and process legally recognizing established R.S. 2477 ROW should be developed as binding upon employees and DOJ attorneys. However, a fair and timely “administrative determination” or RDI process, given the current obstructionist bureaucrats in DOJ, DOI and BLM, likely would not work. Current agenda driven employees and attorneys would have to be removed from all processes to equitably consider R.S. 2477 ROWs as VERs.
Importantly, “administrative determinations” or RDIs submitted to the court in the current burdensome and costly quiet title litigation in Kane County and throughout Utah could go a long-way in resolving unnecessary litigation. An objective, legally-based review of the documentation already submitted in the quiet title litigation could resolve the status of the vast majority of the roads currently being litigated. This process could result in quiet title adjudication - permanently assuring the legal recognition of established R.S. 2477 ROWs. The much lower number of roads (that may not be agreed upon through an
“administrative determination” process) would result in significantly reduced quiet title litigation burdens for the federal government, the state and the counties.
This report documents the need for DOJ, DOI, BLM, the State of Utah and its counties to adopt federal court direction when dealing with public land management issues; “[All] levels of government have responsibility for, and a deep commitment to, the common good, which is better served by communication and cooperation than by unilateral action.”
Photograph: “Streambed of Paria River open to Motor Vehicle Travel” sign
Kane County Commission Resolution R-2017-10, “A Resolution to Save Access to the Paria Canyon”
Kane County Commission letter dated March 19, 2018