April 2, 2018
Ryan Zinke, Secretary Department of the Interior
Brian Steed, National BLM Director
Edward Roberson, BLM Utah State Director
Harry Barber, GSENM Manager
Whit Bunting, BLM Kanab Field Office Manager
Re: Cover letter for attached report: 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
The people of Kane County Utah appreciate the recent action by the President Trump/Secretary Zinke administration to amend the unjust creation of the Grand Staircase-Escalante National Monument by President Clinton in 1996. However, there are issues remaining that need to be addressed in correcting additional abuses that occurred during both the Clinton and Obama administrations.
The attached report, “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” (Wrongful Closure Report).
It is respectfully submitted for your consideration along with a request that the President Trump/Secretary Zinke administration take action rescinding BLM’s wrongful closure of Kane County’s historical Paria River Road in 2009 (during the administration of President Obama and Secretary of the Interior Ken Salazar). The attached Wrongful Closure Report justifies the revocation of BLM’s actions in closing the Paria River Road in great detail. However, current BLM management has indicated that the Paria River Road will likely remain closed unless favorably adjudicated in quiet title litigation and the fact that the road is within a WSA supposedly complicates the issue. The Wrongful Closure Report addresses these points in explaining that the historic road established as a valid existing right (VER) long before the existence of the Paria-Hackberry WSA and that DOI and BLM administrators, directors and employees have a legal duty to both recognize and protect valid existing rights in making administrative and planning decisions. Federal court adjudication is not required and should not be demanded for recognition of valid existing rights by federal land managers.
It is understood that certain DOJ attorneys adamantly oppose the current administration revoking the previous administration’s unjust decision to physically close, barricade and threaten prosecution of anyone attempting to travel the historic Paria River Road. These attorneys are likely the same attorneys (left over from the Obama administration) that have persistently tried to frustrate and defeat, at any cost, including misrepresentations to the court, the State of Utah and Kane County’s effort to resolve the failure of federal land managers to recognize rights-of-way legally established under Revised Statute 2477 (R.S. 2477).
Based on past experience it is believed that current federal attorneys assigned to the R.S. 2477 issue will never agree to a reasonable resolution to the R.S. 2477 issue and must be removed from that assignment for a fair and equitable resolution to occur. It is strongly recommended that federal attorneys not previously assigned to R.S. 2477 matters provide an independent, unbiased opinion in this instance. Utah and Kane County quiet title attorneys can provide details of federal attorney actions obstructing R.S. 2477 resolution beyond normal advocacy, including relationships with environmental organizations to collaboratively defeat any administrative or judicial recognition of R.S. 2477 rights.
Numerous county roads operate as public highways in Wilderness Study Areas (WSA) within both the GSENM and the BLM Kanab Field office. The GSENM and BLM FO staff or Kane County could easily supply the total number of roads within WSAs in Kane County. The North Swag Road, previously adjudicated as a Kane County R.S. 2477 right-of-way, is an open public highway within the same Paria-Hackberry WSA as the Paria River Road. It is an unmaintained, two-track road, as is the Paria River Road.
The WSA argument regarding the Paria River Road is a purposeful diversion to avoid the real issue, which is simply - does current documentation support the establishment of a valid existing right prior to the designation of the lands as a WSA. Kane County and the State of Utah have clearly submitted to federal land managers, federal attorneys and to the court that it does. If that is the case, the existence of a WSA is immaterial to the opening of the Paria River Road as a valid existing right pre-dating the WSA. Pre-existing rights are grandfathered in WSAs as a matter of law and regulation.
The long-standing, controversy over R.S.2477 rights-of-way (created by previous Secretary of the Interior Bruce Babbitt) deserves a fresh lawfully-based approach under the President Trump/Secretary Zinke administration. The pathway to resolution of the roads issue should begin with the provision in President Trump’s Proclamation that Secretary Zinke may allow motorized vehicle use on roads and trails existing within the GSENM prior to its designation. That provision should rightfully be applied to Kane County’s Paria River Road.
It is also requested that all vestiges of previous Secretary of Interior Bruce Babbitt’s unjust 1997 policy eviscerating congressionally granted and protected R.S. 2477 rights-of-way across the West be fully revoked and replaced by a lawfully-based policy. This issue is addressed in the attached Wrongful Closure Report.
It is further requested that the administration of President Trump and Secretary Zinke change the current methods in dealing with Utah and Kane County’s long-standing, costly, burdensome and continually delayed federal quiet title litigation involving transportation system roads throughout the state. The attached Wrongful Closure Report
proposes a concept of reasonable settlement based on utilizing “administrative determinations” or Recordable Disclaimers of Interest submitted to the court where an administrative review of current documentation supports the existence of congressionally granted valid existing rights.
The wrongful actions developed under the Clinton and Obama administrations will not likely be corrected without a house-cleaning of bureaucratic advocates entrenched in DOI, BLM and DOJ (R.S. 2477 attorneys). The administrators, directors, employees and attorneys following their own agenda will undermine all administrative efforts to change their existing institutional culture as documented in the attached Wrongful Closure Report.
Former Kane County Commissioner, 2003-2011