November 30, 2018

Grand Staircase Escalante National Monument

669 S Hwy 89A

Kanab 84741

Reference: Response to Draft Environmental Impact Statement and Resource Management Plans for the Grand Staircase – Escalante National Monument and the Kanab-Escalante Planning Area

Attention: Matt Berenson

The Utah/Arizona ATV Club, of Kanab, Utah, the membership being in concurrence, offer this response to the scoping of the Grand Staircase-Escalante National Monument (GSENM) draft Environmental Impact Statement (EIS) to be used to implement Resource Management Plans for the three GSENM units and the Kanab Escalante Planning Area (KEPA).

The UT/AZ ATV Club, Inc. of Kanab, Utah is an Off-Highway Vehicle (OHV) recreational vehicle club consisting of more than 200 members. Our members are mostly from Kane County, with members in Washington County and the Northern Arizona area and many other western states. Our Club is a non-profit organization that has donated thousands of hours of volunteer services over the years. Keeping trails, routes and staging area trailheads policed, repaired and clean is one of our top priorities. Our Club enjoys the support of many of the businesses within our communities, welcoming the support of our sister outdoor recreational groups. Our outdoor activities are controlled, reasonable and every effort of OHV travel and road manners are attempted to be followed. We reside in the area which is being reviewed and take a personal interest in fair and equitable federal management practices.

Firstly, and most importantly our Club cannot endorse any of the four alternative plans offered in the draft EIS released in August. Some of the reasons are below.

A number of issues remain and need to be addressed or explained in regard to the development of the Draft EIS which concerns our ATV Club members. Firstly, input as to how the 700+ page Volume II EIS draft was put together. Were the local governments, local recreational enthusiast, local businesses or private land owners allowed to participate in drafting the EIS?

Apparently with the many scoping responses submitted, it would be argued that this would be considered participation of the above groups. Which supposedly guided staff with the development of the August document. We do not think so though.
It is a daunting chore for the layman to comprehend the content of such a document. However, what our membership did was to concentrate in the content or verbiage of President Trump’s Proclamation 9682. The spirit and intent of the proclamation in its entirety surly should be followed we believe.  

For instance, the previously submitted report drafted by former Kane County Commissioner Mark Habbeshaw; “Wrongful Closure of the Paria River Road in Kane County, Utah,” gives adequate justification not only to Re-Open the Paria River Road by justification contained in President Trump’s proclamation 9682. We believe his intent was to ensure that all previous routes (motorized roads and trails) available prior to President Clinton 1996 proclamation 6920 may be restored as quoted below. There is more valid direction given in President Trump’s proclamation which seems may have been ignored and therefore brings forth questions.

Answers to these questions could not be found in the EIS draft documentation.

Portions of President Trump’s Proclamation 9682 states as follows:
“Now, Therefore, I, Donald J. Trump, President of the United States of America, by the authority vested in me by section 320301 of title 54, United States Code, hereby proclaim that the boundary of the Grand Staircase-Escalante National Monument is hereby modified and reduced to those lands and interests in lands owned or controlled by the Federal Government within the boundaries described on the accompanying map, which is attached to and forms a part of this proclamation. I hereby further proclaim that the modified monument areas identified on the accompanying map shall be known as the Grand Staircase, Kaiparowits, and Escalante Canyons units of the monument. These reserved Federal lands and interests in lands cumulatively encompass approximately 1,003,863 acres. The boundaries described on the accompanying map are confined to the smallest area compatible with the proper care and management of the objects to be protected”.

“Any lands reserved by Proclamation 6920 not within the boundaries identified on the accompanying map are hereby excluded from the monument”.

“Paragraph 14 of Proclamation 6920 is updated and clarified to require that the Secretary of the Interior (Secretary) prepare and maintain a management plan for each of the 3 units of the monument with maximum public involvement including, but not limited to, consultation with federally recognized tribes and State and local governments. The Secretary, through the BLM, shall also consult with other Federal land management agencies in the local area in developing the management plans”.

“Proclamation 6920 is amended to provide that the Secretary shall maintain one or more advisory committees under the Federal Advisory Committee Act (5 U.S.C. App.) to provide information and advice regarding the development of the above-described management plans, and, as appropriate, management of the monument. Any advisory committee maintained shall consist of a fair and balanced representation of interested stakeholders, including State and local governments, tribes, recreational users, local business owners, and private landowners”.

“Proclamation 6920 is clarified to provide that, consistent with protection of the objects identified above and other applicable law, the Secretary may allow motorized and non-mechanized vehicle use on roads and trails existing immediately before the issuance of Proclamation 6920 and maintain roads and trails for such use”.

(Emphasis added).

The above proclamation brings forth these questions regarding the draft EIS and future development of the four RMP drafts and what the maximum public involvement including, but not limited to, consultation, if any will be implemented by the GSENM BLM office.

We seek determination of who developed the draft EIS alternatives regarding  the GSENM and KEPA areas.

1.Proclamation 9682 states that there would be “maximum public involvement including, but not limited to consultation with federally recognized tribes and State and local governments” was that done in regarding the draft EIS and who determined which BLM office (BLM Kanab Field office or GSENM BLM office) would do the KEPA EIS?

How will State and local authorities, recreational groups, environmental groups, the GSENM Advisory Committee, or other management boards and stakeholders contribute to the planning process and ongoing management of the Planning Areas?

Advisory Committees

1. How many “Advisory Committees,” if any, were impaneled to provide consultation or local information and advice regarding the development of the above-described EIS draft plans?
2. What was reported back by such Advisory Committees, if any? Is this information in the EIS Documentation?
3. Were any Advisory Committee(s), if any, consulted or allowed to give recommendations as to who should manage the KEPA area from the monument; i.e. the BLM Field Office or BLM Monument Office?
4. Did any such Advisory Committees, if any, consist of a fair and balanced representation of interested stakeholders, including State and local governments, tribes, recreational users, local business owners, and private landowners or effected outdoor recreational organizations?
5. And, if committees, if any were appointed, who were selected to serve on such Advisory Committees, and how were committee members selected?

Roads and Trails existing prior to the Clinton Proclamation 6920
1. Is there an available map designating these motorized roads and trails which were available prior to the Clinton proclamation?
2. Were any road or trails existing prior to the Clinton proclamation reopened, were there any consultations regarding this matter with the Advisory Committees?

3. Why isn’t some of the routes adjudicated through the courts on the maps provided in the draft EIS?

Legal Issues Regarding the Federal Intent to Take-Over Kane and Garfield Counties’ long-established Transportation System Highways by DOI Secretary Ryan Zinke’s approval of the GSENM/KEPA Environmental Impact Statement

The Federal Land Policy and Management Act (FLPMA) Section 701h states, “All actions by the Secretary concerned under this Act shall be subject to valid existing rights.” (emphasis added). The draft EIS is an “action” taken by Secretary Ryan Zinke’s authority. The draft EIS, therefore, “shall be subject to valid existing rights” as lawfully required by the U.S. Congress.

It is Secretary Zinke’s duty and responsibility to rectify the judicial travesty created by previous administrations and as currently incorporated in the draft GSENM/KEPA EIS.  The approval of the draft EIS as currently written results in a federal take-over of Kane and Garfield Counties’ transportation system highways as they operate as vested public easements within the planning area. The counties’ vested public easements are protected by the Constitution from being arbitrarily taken away or nullified as proposed in the draft EIS. The draft EIS wrongly attempts to negate the “shall be subject to valid existing rights” requirement of FLPMA in order to facilitate the federal take-over of non-federal “routes” it disagrees with. Secretary Zinke is congressionally required (FLPMA Section 701h) to bring the draft EIS into compliance with applicable legal requirements before he approves the draft EIS by a Record of Decision.

The GSENM and KEPA Draft Resource Management Plans and Environmental Impact Statement (Volume 1) under “ Methods and Assumptions” (pg 3-112) states;

“According to BLM Manual 1626, “A travel management plan is not intended to provide evidence, bearing on, or address the validity of any R.S. 2477 assertions. R.S. 2477 rights are determined through a process that is entirely independent of the BLM planning process. Consequently, [this RMP\TMP] did not take into consideration R.S. 2477 evidence. The BLM bases travel management planning on purpose and need related to resource uses and associated access to public lands and waters given consideration to the relevant resources. At such time as a decision is made on R.S. 2477 assertions, the BLM will adjust its travel routes accordingly….Existing and valid rights for permittees, ROW holders, and other authorized users are not affected.”

It is important to consider the history leading to BLM Manual 1626’s provisions. On January 22, 1997, DOI Secretary Bruce Babbitt “revoked” the previously legally-based “Hodel Policy.” The Babbitt memorandum set policy inconsistent with established law and FLPMA section 701h. The Babbitt memo set forth an illegal policy of simply not recognizing any R.S. 2477 valid existing rights. Secretary Gale Norton later issued a policy establishing a non-binding administrative process. Although the “Norton Policy” nullified the “Babbitt Policy” BLM managers never completed any non- binding determinations under the “Norton Policy.” On February 20, 2009 BLM Acting Director Ron Wenker issued an agency-wide directive ordering all BLM employees to suspend all work on R.S. 2477 claims. It appears that the illegal “Wenker Policy” administratively ignoring R.S. 2477 VERs is still controlling today under Secretary Zinke’s administration. This history apparently played a role in the creation of the invalid provisions cited above in BLM Manual 1626.

BLM Manual 1626’s reference to “bearing on” is invalidated by FLPMA 701h, “All actions by [BLM] shall be subject to valid existing rights.” The “consideration of R.S. 2477 evidence” is not the issue in the draft-EIS. BLM has revoked all processes to conduct administrative determinations, non-binding determinations or recordable disclaimers of interest. BLM has no means to “consider R. S. 2477 evidence” or to administratively determine R.S. 2477 validity. BLM purposely created this situation in an attempt to nullify R.S. 2477 rights in all BLM planning. However, BLM Manual 1626, nor any other BLM policy, manual or provision authorizes BLM to unilaterally eviscerate the counties’ transportations systems operating as Constitutionally protected vested public easements by creating a federal transportations system superseding and replacing the counties’ transportation systems within the planning area.

There is no need to deviate from BLM Manual 1620’s provisions because there is no need to “consider R.S. 2477 evidence” in the draft EIS. The counties’ and the State of Utah’s R.S. 2477 rights do not require administrative determinations or administrative recognition. R.S. 2477 rights do not require quiet title adjudication (10th Circuit). Only one quiet title case has been adjudicated, the Bald Knoll case in Kane County. The Burr Trail case in Garfield County and hundreds of other Federal District Court and IBLA cases have decided R.S.2477 issues. Not one of those cases required quiet title adjudication before R.S. 2477 rights could continue to operate with county jurisdiction over highways crossing federally managed lands. R. S. 2477 rights do not need BLM recognition or agreement and BLM cannot take-control of the counties’ VERs as proposed in the draft EIS because of the protection of federal law and the simultaneous Constitutional protection of vested public highway easements.

Specifically, the counties’ highways exist as public easements for the benefit of the public at large.  In an easement relationship the holder of the public easement (counties) is the dominant estate. The federal government is the servient estate. BLM, as the servient estate, cannot eviscerate the rights of the dominate estate as attempted in the draft EIS.

The counties’ highways established as public easements under provisions of state law, in this case Utah law. They established without the recognition of BLM. No application, permit or recording was required before the highway vested as a public easement. Their long-standing use from 1866 to 1976 evidences vested public easements congressionally granted under R.S. 2477. No action on the part of BLM is necessary for their operation as public highways and no unilateral action by BLM (as attempted in the draft EIS) can revoke them.

The issue here is not BLM’s “consideration of R.S. 2477 evidence” but rather BLM’s impermissible interference with the counties’ public easement rights. Courts have held that federal agencies may not preclude or unreasonably interfere with reasonable exercise or rights of parties who hold valid rights-of-way. Courts have also held that the owner of the servient estate must abstain from acts that impermissibly interfere or are inconsistent with the proper use or enjoyment of an easement and no material changes can be made by either owner of right-of-way or owner of servient estate without the other’s consent. Courts have also held that, “Where two parties exercise correlative rights, the right of one cannot be measured without reference to the right of the other, using the rule of reason as the yardstick.”

A status quo regarding VERs and public easements across federally managed lands historically established long before Secretary Babbitt’s illegal policy revoking R.S. 2477 rights. The historic status quo continued through the illegal GSENM Plan of 2000 and continues today as to the public’s use of the counties’ long-standing transportation systems. As the servient estate BLM has options for remedy regarding any disputes it might have regarding VERs. However, VERs as vested public easements cannot be unilaterally taken-over by BLM as the sevient estate without running afoul of easement law derived from the U.S. Constitution and Secretary Zinke’s congressional mandate in FLPMA Section 701h.

The draft EIS planners’ intent to adopt Map 2 and travel provisions of the current GSENM Management Plan (2000), including but not limited to, the provisions stating, “…the transportation system described in the Approved Plan [2000] will be the one administered in the Monument” and “[a]ny route not shown on Map 2 is considered closed” violates the counties’ vested public easement rights and the federal actions violate Secretary Zinke’s duties and responsibilities under FLPMA Section 701h.

The Grand Staircase-Escalante National Monument (GSENM) and Kanab-Escalante Planning Area (KEPA) Draft Resource Management Plans and Environmental Impact Statement (EIS) Executive Summary (ES) (August 2018) under Purpose and Need (pg ES-1) states, “The purpose of a land use plan is to ensure BLM-administered surface lands are managed in accordance with the Federal Land Policy and Management Act of 1976 (FLPMA)....” Unfortunately, BLM employees and managers developing the draft planning have made decisions to only act in accordance with those provisions of FLPMA they agree with. The draft EIS fails in the requirements of congressionally enacted FLPMA sections 501a, 701a and 701h in protecting VERs as public easements across federally managed lands.

The history and legal principles operating VERs established under R.S. 2477 are presented in further detail in the section of these comments titled, Kane County Paria Road (K6200) as a VER established under R.S. 2477 and as a motorized recreational route under President Trump’s Proclamation within the Paria Canyon Corridor. That discussion also applies to this section of comments.

The concerns and controversies related to R.S. 2477 ROWs as VERs protected by FLPMA and operated as vested public easements are of local, state and national concern and qualify as an issue to be considered in the draft EIS. They need not be considered as to R.S. 2477 “evidence” as addressed in the BLM manual but, rather, as to other controlling law that does not support the wholesale take-over of county highways operated as vested public easements.  The inclusion of VERs operating as public easements in planning decisions controlling future management actions is also required by the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.) and the CEQs prior to final approval by the Record of Decision (ROD).

Substantial comments regarding the recognition of VERs as well as other issues were submitted during scoping. However, BLM planners failed to include the issue of VERs. Instead, under Recreation issues the Executive Summary states, “How can the transportation system in the Planning Area be managed to provide an appropriate level of access for a variety of user groups, such as hikers, cyclists, OHV users, equestrians, and aircraft pilots[?].” Under Travel Management issues the Executive Summary states, “[h]ow should the transportation system in the planning area be managed to accommodate increased visitation while protecting sensitive Planning Area resources [?].”

Under Travel Management Kane and Garfield lawsuits are mentioned followed by a legally inaccurate and misleading statement, “Federal Courts have determined that the BLM lacks the authority to make binding determinations on the validity of R.S. 2477 rights-of-way. For this reason, R.S. 2477 issues will be resolved through a separate process.” (emphasis added). In fact, the courts have encouraged BLM to make “administrative determinations” and “recordable disclaimers of interest”, which are within its legal authority. BLM has both the legal ability and the responsibility to resolve issues and conflicts regarding VERs (see FLPMA Sections 501a, 701a and 701h). Instead, BLM is establishing a blanket de facto “administrative decision” that no R.S. 2477 rights exist without adjudication – contrary to the law and BLM’s administrative responsibilities. BLM planners’ purposeful agenda is to claim jurisdiction over virtually all “routes” within the planning area, thereby, unilaterally controlling all public access within the planning area. These federal actions administratively usurping VERs creates a travesty of justice by effectively eviscerating the counties’ public highway easements across the planning area without servient estate authority to take such action.

BLM’s reference that “R.S. 2477 issues will be resolved through a separate process” is not supportable. (emphasis added). That statement evades Secretary Zinke and BLM’s legal duties. BLM has no “separate process.” This leaves the only process for Kane and Garfield Counties and the State of Utah costly and unnecessary quiet title litigation. However, in quiet title litigation federal attorneys argue against the federal court’s jurisdiction to resolve Kane and Garfield and the State of Utah’s R. S. 2477 rights by adjudication because DOI and BLM (as alleged) have not taken sufficient action against the counties’ rights to create a case or controversy.

The federal strategy is intended to leave the holder of R.S. 2477 rights without any “separate process” or the ability to quiet title to its rights. This would place the counties and the State of Utah in a “catch-22” that eviscerates their valid existing rights and vested public easements by administrative action but leaves the counties and the state without redress. The federal strategy to obstruct R. S. 2477 rights and constitutionally protected vested public easements is legally flawed in not considering that BLM recognition or quiet title is not required for the counties and the public to enjoy the right to travel across federally managed lands on vested public easements (10th Circuit).

Under Travel Management it states, “BLM will evaluate whether routes that existed prior to the designation of the Grand-Staircase-Escalante National Monument should be open to motorized and non-mechanized vehicle use during a travel management planning process that will follow this land use planning process.” It is certain that routes evaluated in future transportation planning are intended to be at the sole discretion of BLM without consideration of VERs operating as vested public easements.  

BLM planners intend to make all instant and future transportation management decisions without regard for the hundreds of county transportation system public highways within the planning area, regardless of the fact that the counties’ highways established under federal law and are protected by Congress in FLPMA. Contrary to the draft EIS planning proposals, BLM only has authority to manage routes, roads or highways under its jurisdiction. BLM lacks authority to manage Kane and Garfield County Transportation System highways, as protected by President Trump’s Proclamation (9682) and relevant law.

The controversy, public concern and harmful affects regarding this issue are further demonstrated by the fact that during the two and one-half (2-1/2) year period Kane County was denied jurisdiction over roads across federally managed lands without adjudication by Judge Campbell (subsequently overturned) BLM refused to accept and perform maintenance responsibilities on hundreds of roads BLM deemed to be under BLM jurisdiction in Map 2 and the transportation provisions of the GSENM Management Plan (2000).

Under Judge Campbell’s holding Kane County was no longer able to manage and maintain its public highways established under R.S. 2477. The county did not have FLPMA Title 5 permits or maintenance agreements and could not assert jurisdiction under R.S. 2477. Therefore, highway maintenance and other management functions by the county ceased. BLM was informed of its responsibilities inherent with its claimed jurisdiction pending legal resolution of the matter. BLM claimed it lacked the ability to maintain the roads and believed the county should continue to maintain only the roads (then under BLM jurisdiction) that BLM desired to be maintained. Maintenance responsibility being inherent with jurisdiction would become a federal responsibility under BLM’s transportation paradigm of taking-control of public access in the planning area.

The public suffered a great deal in travelling roads across federally managed lands in severely deteriorated condition for the entire two and one-half year period. Subsequent to the 10th Circuit overturning Judge Campbell’s decision the Kane County resumed its management authority and maintenance responsibilities over county highways. The counties perform their management and maintenance responsibilities on roads within the planning area today in spite of BLM’s denial of the counties authority to do so. And in spite of the resulting conflict and controversy.

The approval of the GSENM Management Plan (2000) has led to almost a daily tug-of-war and litigation over the counties’ highways with the public caught in the middle. The approval of the draft EIS will only lead to even more aggressive federal actions in attempting a take-over county highways and public easements and will certainly lead to continued on-the-ground conflict with the counties, the travelling public, private property owners and others. It is important to note that the counties and the State of Utah have made clear that they do not intend to submit to illegal provisions of the draft EIS or ROD.

Since 1997, DOI and BLM’s intent has been to implement DOI Secretary Babbitt’s illegitimate policy of ignoring and thereby eviscerating long-standing R.S. 2477 ROW by replacing VERs protected by FLPMA with lesser FLPMA Title 5 permits. FLPMA Title 5 permits were offered to the counties during the first GSENM planning process (1998). That effort failed, leading to years of on-the-ground controversy and subsequent litigation. The attempt to do away with VERs established under R.S. 2477 with an administrative paradigm replacing VERs with FLPMA Title Five permits or by simply ignoring the existence of VERs while asserting unilateral control over all “routes” crossing BLM managed lands is illegitimate.

Resolution of VERs should be as simple as status quo recognition of the counties’ transportation systems which are based on R.S. 2477 ROW (counties’ General Plans) and established as long-standing public easements across federally managed lands. Instead, BLM has failed the Presidential mandate requiring that the, “Secretary of the Interior (Secretary) prepare and maintain a management plan for each of the 3 units of the monument with maximum public involvement including, but not limited to, consultation with federally recognized tribes and state and local government.” (emphasis added). Kane County’s letters cited in these comments demonstrate a lack of adequate consultation with the county as required by the President’s Proclamation, including the fact that President Trump affirmed that Proclamation 9682 is “subject to valid existing rights.”  

DOI and BLM cannot justify not recognizing any R.S. 2477 ROWs as exiting on BLM managed lands anywhere in the nation.  

To comply with NEPA EIS planners recognized that planning (step 4) “must analyze the potential effects of implementing the alternatives.” The failure to analyze the nullifying impact to VERs and vested public easements in creating a controlling federal transportation system while denying the counties’ ability to operate their long-standing transportation systems violates NEPA, FLPMA, Presidential Proclamations 6920 and 9682 and other related federal laws.

The following comments relate to the “Executive Summary Table ES-2 Summary Comparison of Environmental Consequences by Alternative” (pg ES-15) and to provisions in the draft EIS.

Under “Lands and Realty” – “ROWs” (pg ES-35), under both the KEPA and the GSENM columns, the alternatives fail to consider public highway ROWs as vested public easements granted to Kane and Garfield Counties under Revised Statute 2477 and operated as county transportations systems from pioneer days to the present time.

As to “Private land access routes” (pg ES-36), the allowance of a single access to private land and a requirement that land owners must coordinate the development of access routes across public lands during implementation-level planning is problematic in failing to analyze county public highways accessing private property. This is an obvious attempt to control access to private property in order to apply pressure and restrictions at some point in the future, thereby, facilitating federal acquisition of the private land. New access routes to private property needed after 1976 (FLPMA) are authorized under FLPMA Title 5 permits, improvements to established county roads to private property would be done in consultation with BLM. BLM, as the servient estate in an easement relationship, however, is not authorized to restrict a private property owner’s use of county public easements.

Under the Executive Summary “Transportation and Access” – “OHV area designations” (pg ES-42), the planning provision restricting OHV use within “closed OHV areas” would deny travel along vested county public easements within the closed area. The phrase “limited existing routes and access” incorporates the current transportation route map (2000) as discussed under “Routes” below. Map 2 of the current GSENM Management Plan (2000) and Tran 5 of the plan (pg 46) attempts to deny the jurisdiction and authority for the counties to regulate OHV use on its vested public easements. BLM as the servient estate cannot unreasonably interfere with the public’s use of vested public easements accessing private property or regarding OHV use, which is regulated by county ordinance.

In the draft EIS under “Travel and Transportation Management” (pg 3-110) it states, “OHVs that are not street legal are allowed on approximately 553 miles of the 908 miles of routes designated open to street-legal vehicles in these zones.” This provision is harmful to Kane County’s rights and to the travelling public. It connotes federal control as to “routes designated open” and attempts to regulate OHV travel over county highways. The counties have the sole authority to regulate OHV travel over their transportation system highways by county ordinance. BLM is acting without federal authority and is unreasonably interfering with the rights of the dominant estate (counties) in an easement relationship.

The draft EIS Table 3.15-1 (pg 3-111) “Area Travel by Administrative Unit” is invalid in attempting to control public access along county highways.

In the draft EIS BLM planners recognize (pg 3-111);

“Most of the state and county-maintained roads have either a BLM ROW or are claimed as Revised Statute 2477 (R.S. 2477) roads by the counties. Primary and secondary roads have historically been maintained by the counties. Revised Statute 2477 was enacted in 1866…. It was a primary authority under which many State and county highways were constructed over federal lands in the West.”

The above quotation illustrated the BLM planners’ new paradigm of taking control of historic county transportation systems across federally managed lands. While BLM planners recognize the existence of an extensive number of R.S. 2477 rights-of way within the planning area they, never-the-less, intend to unilaterally take-control of the roads. Although BLM planners recognize that R.S. 2477 was the “primary authority under which many State and county highways were constructed over federal lands in the West” they fail to recognize that the authority granted by R.S. 2477 was not only for the construction of the highways but that it granted a permanent right-of-way operating as a public easement across federally managed lands. The “roads” BLM recognizes as being “constructed” under the “primary authority [of R.S.2477]” operate today as public highway easements without BLM’s approval, consent or interference.

The statement that, “[p]rimary and secondary roads have historically been maintained by the counties” raises complex issues. First, it illustrates that the counties have also historically managed and regulated the highways. Second, BLM is either unwilling or unable to physically maintain the highways as addressed elsewhere in these comments. Third, BLM intends that the counties should continue its historic maintenance and repair of roads but only for roads of BLM’s choosing, at county and State taxpayers’ expense - preferably under the authority of a much lesser FLPMA Title 5 permit. Fourth, any road work on federally managed lands must be done with federal authority.

Under what authority did the counties manage and maintain highways across federally managed lands from 1866 to today? The vast majority of highways lacked FLPMA Title 5 permits or maintenance agreements. It was and is the historic authority under R.S. 2477 that county transportations systems have operated across federally managed lands as vested public easements.

The planning reference that, “use on existing routes is casual use” is disingenuous. BLM planners should be well aware of the many uses that have traditionally attached to the counties’ highways. If not, the counties can explain the many historic and current uses of our highways. Administrative restrictions of county highways are not permissible on highways under R. S. 2477 jurisdiction and are unreasonable actions by the servient estate upon vested public easements. Public highways by definition are open to all public travel.

The statement, “Increased travel…could increase the need to manage, maintain, and improve the current transportation system” further evidences BLM’s intent to unilaterally control all transportation system management – except for highway maintenance.

Regarding “Transportation and Access” - “Routes” (pg ES-42) the draft EIS; BLM’s recognition of public access along the V-Road, Inchworm Arch Road and the Flag Point Road is appreciated. However, it further states, “Managed consistent with the current transportation route map.” The draft EIS wrongfully adopted the legally flawed Map 2 of the current GSENM Management Plan (2000) and applied it as controlling over both the GSENM and KEPA areas, even though the KEPA is multiple-use and no longer under the restrictive management regime of a monument.

The current plan (2000) attempted to take-control of all transportation and access within the GSENM. That attempt (based on then Secretary of the Interior Bruce Babbitt and Acting BLM Director Wenker’s unlawful policy to ignore R.S. 2477 ROW (still the policy under Secretary Zinke)) has not been successful but has created a great deal of controversy and conflict in Kane and Garfield Counties and the State of Utah. The ongoing controversy has included on-the-ground conflict, confusion, public anger, as well as costly and unnecessary litigation.

The DOI and BLM’s denial of R.S. 2477 ROW in planning and other actions flies in the face of FLPMA 501a, 701a and 701h, as well as President Clinton’s Proclamation (6920) creating the GSENM (1996), which specifies, “[t]he establishment of this monument is subject to valid existing rights” and President Trump’s Proclamation (9682) affirmation, “subject to valid existing rights.” BLM’s position violates the rights of the dominate estate (counties) by the servient estate (BLM) over the use of vested public easements.

The EIS planners’ intent to adopt the current plan’s (2000) Map 2 and the transportation and access provisions of the current management plan (pg 46) is both legally and procedurally improper. The current management plan (2000) unilaterally “designates the route system for the Monument.” Map 2 purports to control “routes open for public use” and routes available for “administrative use only.” The current management plan (2000) states, “[a]ny route not shown on Map 2 is considered closed upon approval of this Plan, subject to valid existing rights [emphasis added].” The most egregious part of the current plan states, “Otherwise, the transportation system described in the Approved Plan will be the one administered in the Monument.” Footnote 1 of the current plan (2000) (pg 46) recognizes the existence of VERs established under R.S. 2477, however, the footnote continues with a purposeful, inaccurate statement in an effort to justify BLM’s intent to unilaterally establish a federal transportation system without regard to pre-existing VERs. It is the intent of BLM planners to incorporate the provisions of the current (2000) plan into the draft EIS.  The duplicitous footnote (pg 48) states;

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 claims would be determined to be valid. To the extent inconsistent 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 valid existing rights. Otherwise, the transportation system described in the Approved Plan will be the one administered in the Monument. Nothing in this Plan extinguishes any valid existing right-of-way in the Grand Staircase Escalante National Monument. Nothing in the this Plan alters in any way any legal rights the Counties of Garfield and Kane or the State of Utah has to assert and protect R.S. 2477 rights, and to challenge in federal court or other appropriate venue, any BLM road closures that they believe are inconsistent with their rights (emphasis added).

It is unfortunate that the current plan (2000), ultimately approved by Secretary Babbitt intended to implement the illegitimate Babbitt policy to ignore all R. S. 2477 ROW and to not process any determinations of those ROWs without referral to Secretary Babbitt. Not a single R.S. 2477 ROW has been recognized by DOI or BLM since the Babbitt policy was issued in 1997. The adoption of these provisions in the draft EIS planning will continue federal management inconsistent with statutory and case law controlling federal actions.

Contrary to the claim in footnote 1 that BLM was unaware of any asserted R.S. 2477 rights-of-way as VERs, BLM was specifically aware of R.S. 2477 claims asserted in the GSENM prior to the crafting of footnote 1. Kane and Garfield Counties provided R.S. 2477 claims during the 1998-2000 planning process. The counties have additionally provided claims of R.S. 2477 ROWs to BLM since the GSENM Management Plan of 2000. It was well-known then and it is well-known now that there are major conflicts with transportation decisions made in the approved plan (2000). BLM’s claim of “unknown” claims was invalid then and its claim is invalid now and should be corrected in the draft EIS.

The claim in footnote 1 of the current plan (2000), which states, “claims would have to be determined” is inconsistent with both statutory and case law controlling the matter. R.S. 2477 ROW do not require agency determination. They do not require quiet title adjudication (10th Circuit). They were granted under federal law from 1866 to 1976 and established under conditions of state law without recordation, filing or even BLM’s knowledge. Until the illegitimate Babbitt policy there was very little controversy over R.S. 2477. The current management plan (2000) is legally mistaken in requiring adjudication before the counties can exercise their rights. The current management plan (2000) was illegitimate in adopting a federal transportation system taking-control of the counties’ long-established transportation systems established as vested public easements across federally managed lands.

The statement in footnote 1, “[n]othing in this plan extinguishes any valid existing right-of-way…” demonstrates federal double-speak.  While federal action takes-control of county transportations systems, thereby, eviscerating the counties’ VERs and vested public easements by federal fiat, the Management Plan claims BLM is not doing what it is in fact doing. In this instance the BLM’s double-speak is duplicitous in the worst sense.

The recognition of VERs does not require a formal planning process such as the draft EIS.  In fact, BLM need not formally recognize them but “[a]ll actions” by Secretary Zinke and BLM “…shall be subject to valid existing rights.” The acceptance of R.S. 2477 ROWs as VERs is the same as the recognition of all other property rights within federally managed lands, such as private in holdings. BLM would not consider assuming control over all private property in the planning area that had not been federally adjudicated. When BLM does question the validity of private property in-holdings the claimant is afforded due process. Due process is being denied regarding federal actions proposed in the draft EIS usurping VERs and vested public easements. BLM has remedies concerning easement disputes but it lacks authority to take unilateral action nullifying the counties’ public easements.

BLM only has authority to conduct transportation planning regarding routes under its jurisdiction. Only the counties and the State of Utah have jurisdiction to conduct planning and regulate their public transportation system highways. The issue of VERs and public easements as established under R.S. 2477 and protected by the Constitution, FLPMA 501a, 701a and 701h is both timely and is required in the draft EIS. The issue is of wide-range importance and is probably more controversial that any of the issues addressed in the EIS to this point. The inclusion of the issue is, in fact, required by NEPA, FLPMA, CEQs and other controlling statutory and case law.

Kane County favorably adjudicated the North Swag Road (K4370), the Swallow Park/Park Wash Road (K4360) and the Nipple Lake Road (K4290) under federal quiet title litigation. Kane County holds quiet title to these roads across federally managed land within the Paria-Hackberry WSA. Yet the BLM fails to recognize the adjudicated VERs in EIS planning. During a recent EIS public meeting it was noted the North Swag Road was not on the transportation planning map on display. The BLM employee at the station tried to explain it away because the map layers were slow in being entered on the maps. This excuse is unsatisfactory given that the roads in question were adjudicated years ago. The quiet title roads also failed to make it on the EIS planning maps on BLM’s web site provided to the public for planning comments. The fact that the EIS alternative development and the reference to three new roads added to the current transportation map (V-Road, Inchworm Arch and Flag Point) while failing to recognize the three roads (North Swag, Swallow Park/Park Wash segment and Nipple Lake) adjudicated as VERs indicates BLM planners’ intent to even refuse to acknowledge county roads when they are adjudicated. This intent is further evidenced in BLM maps identifying the Skutumpah Road as BLM road # 500. Skutumpah Road (K4505) has been adjudicated as a VER under R.S. 2477. It is not a BLM road. BLM lacks jurisdiction over the road regarding, management, maintenance and signing. BLM lacks authority to place a road number sign on Skutumpah Road conflicting with Kane County’s Skutumpah Road number. BLM maps also appear to designate Swallow Park Road (K4360) as BLM road # 542A. Swallow Park Road has been adjudicated to Kane County. BLM lacks authority to sign the road as a BLM road.

What if the counties signed all roads within the counties’ boundaries, including routes under federal jurisdiction, with county road numbers? BLM would certainly take action to end such unauthorized signing and management actions. Agencies sign roads under their jurisdiction. That applies to federal highways, state highways, county highways, private lands and BLM managed lands. BLM maps need to identify county highways on their maps in the same manner they identify federal highways, state highways and other roads not under BLM’s jurisdiction. Informational signing along roads is another matter and should be coordinated between the counties and BLM.

The 10th Circuit held that, “[b]oth levels of government have a responsibility for, and a deep commitment to, the common good, which is better served by communication and cooperation than by unilateral action.” (emphasis added). BLM fails in abiding by the simple, common sense principles of this holding. BLM wrongly changed the status quo regarding VERs and public highway easements established under R.S. 2477 in 2000 with the approval of the GSENM Plan and subsequent federal actions based on illegitimate provisions of the plan. BLM wrongly intends to carry-over the same illegitimate provisions in the draft EIS.

Secretary Zinke, his administration and BLM can best comport with the court’s “common good” principles by abiding by the congressional mandate in FLPMA Section 701h and by conforming to their servient estate role in respecting the dominate estate’s vested public highway easements within the planning area rather that attempting unbridled federal control of all access within the planning area as proposed in the draft EIS.

Kane County Paria Road (K6200) as a VER established under R.S. 2477, as a vested public easement and as a motorized recreational route under President Trump’s Proclamation within the Paria Canyon corridor

The Paria River Road Kane County Road number K6200 is the most iconic backcountry road in Kane County.

To local residents and 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 by GSENM management it was the premier off-highway route in Kane County and perhaps southern Utah.

The importance of the road is affirmed by 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 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.

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 provided 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. However, it is understood that federal attorneys have advised DOI administrators and BLM managers not to open the Paria Corridor to motorized travel because it traverses the Paria-Hackberry WSA. It is important to consider that a pre-existing VER continues to operate within later designated WSAs. A WSA cannot trump an established VER. In addition, the North Swag Road awarded to Kane County in federal quiet title action traverses the same Paria-Hackberry WSA. The continued closure of the Paria River Road because it is within the Paria-Hackberry WSA is not legally justified.

Kane County’s Paria River Road was improperly physically closed and barricaded by federal action, including threats of criminal prosecution for anyone travelling the historic road subsequent to the enforced closure.

The road was improperly closed for the following reasons.

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.

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.

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 was established under R.S. 2477.

R.S. 2477 rights-of-way exist as valid existing rights and operate as public highway easements across federally managed lands. There is no requirement for BLM recognition or for quiet title adjudication (10th Circuit). As the dominate estate Kane County and the State of Utah are constitutionally protected from unreasonable interference regarding its public easements from BLM as the servient estate.

A federal injunction (since overturned) and later threats of federal prosecution under the Obama Administration (supported by the oppressive actions of fired BLM enforcer Dan Love) were factors in Kane County not keeping the Paria River Road open on-the-ground as it has other county highways deemed closed by BLM.

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.” (pg 28).    

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 county’s highway.

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.

Of local 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.

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.

Ideally, DOI, BLM, the State of Utah and its counties should adopt the following 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.”

Kane County’s historic VER and public easement along the Paria River Canyon provides sufficient cause to open the Paria River corridor to motorized travel. Additionally, President Trump’s “Presidential Proclamation Modifying the Grand Staircase-Escalante National Monument” provides additional support for opening the Paria River corridor to motorized travel.

President Trump’s Proclamation mirrors President Clinton’s Proclamation (6920) in being subject to valid existing rights but includes additional direction to BLM. President Trump’s Proclamation states, “…consistent with protection of the objects identified above and other applicable law, the Secretary may allow motorized and non-mechanized vehicle use on roads and trails existing immediately before the issuance of Proclamation 6920 and maintain roads and trails for such use.” The Paria River Road certainly predates the 1996 Proclamation and qualifies under President Trump’s Proclamation’s provisions. In addition, President Trump’s Proclamation created a corridor between the Staircase segment and the Kaparowits segment of the GSENM, thus returning the corridor to multiple-use management under the management of the Kanab BLM Field Office rather than the much more restrictive monument planning regime.

It makes little sense to delay Presidential direction for two to three years down the road when the draft EIS could easily correct the improper and controversial closure of the Paria River Road while providing outstanding recreational opportunities for a wide-range of recreational users and the public at large.

Old Spanish Trail (OST) Comments

Kane County was never consulted regarding Congressional approval of the Old Spanish Trail Recognition Act of 2002, as is the custom regarding Congressional acts affecting the county - even though the trail was depicted as entering Utah in the vicinity of Kanab and travelled through Utah to the east into Arizona in the vicinity of Glenn Canyon. Kane County was also not consulted regarding the development of the Old Spanish National Historic Trail Comprehensive Administrative Strategy (2017).

The UT/AZ ATV club appreciates the historical heritage of our area. Many of our field trips are closely tied to historical sites, trails and events; however, the restrictive nature of the management strategy for the OST is of great concern to our members. Motorized travel is disallowed unless the trail travels along an existing road. Corridor width, view shed and sound restrictions are of concern regarding OHV use in the vicinity of the OST.

There does not appear to be any on-the- ground evidence, inscriptions, diaries or other evidence supporting the alignment depicted on agency maps. Older maps and history books have depicted the trail as being south of the current map lines. The trail has been described as being along the 37th parallel which is the border between Utah and Arizona.

Without reasonable evidence supporting the location of the lines on agency maps the accuracy of the map lines are suspect. The establishment of an OST “centerline” based on inaccurate maps would be seemingly impossible. What process would identify a centerline without evidence affirming the routes location? Without route evidence the route alignment may be nothing more than conjecture and the resulting NTMC of from 600 feet to 6 miles, impacting from 21,238 acres to 76,247 acres would be unjustified. Map 68 showing the 6 mile wide corridor impacting and crossing Highway 89, numerous other roads, grazing allotments and other multiple-use features appears to be gross overkill. Previous NHTS trails have been given 0 to 5 mile-wide corridors. Map 68 shows the mile-wide corridor also impacting Highway 89, numerous other roads and other features. Existing roads and multiple-uses should not be impacted by the OST by a 600 feet wide corridor. We suggest that a NTMC is not warranted for a questionable alignment of a segment of the OST that was used one time in its entire history.

The Utah/Arizona segment of the trail was used for one-round trip from Santa Fe, New Mexico to LA California. National historic trails must be established by historic use and must be historically significant because of that use. One trip through an area is questionable as to historic use or as to historical significance. The Main Route of the OST, on the other hand, operated from 1829 to 1848 certainly qualifies as historic use. A national Historic Trail’s location must be sufficiently known to permit evaluation of public recreation and historical interest potential. The lack of evidence as to where exactly Armijo went brings this requirement into question.

The questionable location of a once use route should not warrant wilderness like, National Park Service type restrictions. The course Armijo took can be celebrated, protected and enjoyed recreationally as intended by Congress with a VRM Class of IV. The more restrictive VRM Classes are not justified given the circumstances of the questionable location and minimal use of the segment.  

Additional Comments

Further review of the August GSENM BLM EIS Plan raises additional scoping issues to be considered in developing a new plan to manage the Grand Staircase, Kaiparowits and Escalante Canyons units within the monument and the new Kanab Escalante Planning Area (KEPA).

Any new Resource Management Plans (RMP) for these four areas should move away from National Park Service type planning, as was incorporated in the 1999 GSENM Plan. The GSENM was placed with the BLM (a multiple-use agency, rather than with the NPS (a protection agency). For example, the 1999 GSENM Plan refers to “the protection of the Grand-Staircase National Monument” (pg iv) as though it was a National Park and that the entire interior boundary must be greatly restricted from public use.

The new RMP planning for each area or unit should begin with the specific identification of “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest”, as stipulated in the American Antiquities Act of 1906, 16 USC 431-433. The primary purpose of a new RMP’s should be development of management prescriptions necessary for the proper care and management of identified objects and to prevent the appropriation, excavation, injury or destruction of any historic or prehistoric ruin, monument, or any object of antiquity as identified by presidential proclamation. Beyond the authorities of the Antiquities Act and presidential proclamation the new monument plan should be multiple-use based, as per the mission of the BLM. As already indicated, the local public should have been involved in the development of the draft EIS from the start, the scoping meetings were not productive for realistic information or direction. Often people were directed to other BLM Staff for information and many excuses were given for not having specific information about identifying Right of Way routes existing prior to the 1996 creation of the GSENM.

The 1999 GSENM Plan’s management zone system, consisting of the Front-country Zone, the Passage Zone, the Outback Zone and the Primitive Zone appear unrelated to site specific object protection but appear to manage people in an NPS type management style. The zone system should be abandoned. The management of visitors within the GSENM and KEPA should be directly related to the management of identified objects. In many cases the objects may offer important interpretive value rather than warrant management restrictions.

The management of public lands relating to the Old Spanish National Historic Trail should not supersede or hinder established RS2477 ROW’s existing prior to the GSENM be established.

Camping should not be unnecessarily complicated and, again, should be managed as necessary to protect and manage objects but not to unnecessarily manage visitors. Specifically, off road parking should not be restricted as it is a safety issue impacting on-road travel. Camping locations such as the Nephi Pasture Staging area should be open for camping.

Group sizes as related to zones should not be as restrictive. The monument should accommodate larger group sizes. Group size should not apply to visitors travelling on county transportation system roads but only apply to off-road activities.

Existing levels of livestock grazing should be supported by the new plan. Allotment buyouts and the permanent retirement of allotments should not be allowed in new planning.

Owners of in-holdings should not be pressured to sell to the federal government.

Road restoration should not apply to any Kane County transportation system roads.

WSAs should not affect Kane County transportation system roads. WSAs are roadless areas and do not legally create an adverse effect regarding RS2477 routes which should remain open through WSA’s.

The Paria River corridor identified by Kane County Transportation System Road # K6200, known as the Paria River Road should be removed from Wild and Scenic Rivers suitability.

If a GSENM and/or KEPA Advisory Committee(s) are formed or exist, one or more OHV representatives should be appointed to the(se) committee(s).

The GSENM units and KEPA Plans should be truly consistent with Kane and Garfield Counties General Plans and/or Resource Management plans and not just contain a statement pledging consistency, without substance.

The provision in the Draft EIS plan, “Only one access route to private land parcels will be authorized….”) this should be removed from consideration in the new plan.

The Preparers Page (D-1 and D-2) of the EIS lists numerous individuals from the scientific perspective, it is loaded with Wilderness, WSA and Wild River specialists preparers and many other project roles such as Project Inspector; Visual Resources to Socioeconomics; environmental justice. But one person, out of 57 individuals: Larry Crutchfield having the project role of public involvement, how did that work and who did he involve?

There was nothing in the index of the draft EIS referencing the Americans with Disabilities Act (ADA) which became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including transportation, and all public and private places that are open to the general public. Many within our ATV Club are disabled military veterans or disable former equestrians, hikers and bicyclists. Why has there been no resourcing of making more areas more accessible to the disabled. Many disabled Americans use OHV transportation to enjoy what everyone else has access to. Many older American can only visit pioneer heritage sites via the use of OHV’s. Are they being forgotten, excluded in this EIS?

The entire Transportation and Access section needs to be rewritten to recognize Kane and Garfield Counties Transportation Systems and resource Management plans within the GSENM boundaries and KEPA boundaries. Many ROW’s are not shown in Map 65 of the draft EIS in declaring only the routes shown on the alternate plan D Maps are open, but misleading. A map should be in the EIS document identifying all routes that existed prior to the 1996 creation of the GSENM. The confusing language this draft EIS contains the four alternatives with D being the preferred alternative. When, none, appear to address President Trump’s spirit and intent in his resolution 9682.

References to street legal and non-street legal vehicles needs to be deleted and deferred to the provisions and ordinances of Kane and Garfield Counties Resource Management planning in managing their transportation system within the boundaries of the GSENM and KEPA.

Certainly, the Wrongful Closure of the Paria River route Report justifies the revocation of BLM’s actions in the 2009 closing of the Paria River Road in great detail. However, current GSENM 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, KEPA 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 submitted 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 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 Wrongful Closure Report.

There are many issues in this draft EIS that the ATV Club members feel are contentious and unfavorable to our membership and our recreational endeavors. None of the four alternatives broadly addresses the many recreational requirements that our membership has argued for over the past years. As always, our Club remains open minded and willing to hear both sides of the argument, however, our experience with the GSENM BLM office has never been mutual, it was always their way or no way at all it seems. We ask for all involved parties to move forward and implement the spirit and intent of President Trump’s Proclamation 9682.

Respectfully submitted,

Samuel R. Smith, President
Utah/Arizona ATV Club
P.O. Box 167
Kanab, Utah 84741

Comments prepared by Samuel R. Smith, President and Mark Habbeshaw, club member on behalf of the Utah/Arizona ATV Club membership

Cc: County State and Federal Officials
      Utah OHV and Recreational Organizations


KC Colors 10

Next Meeting



February 18, 2021, Club Meeting: Dessert Social at 6:30 Meeting at 7:00PM. Kanab Airport, Search and Rescue (SAR) building 2nd floor.  

2021 ATV Club events and schedules pending. Check out the rides and camp-outs tab and follow the updates of planned rides, camp-outs and special events.

Rides, Camp-outs, MEETING QUESTIONS OR AGENDA SUGGESTIONS TO: utazatvclubinfo@gmail.com

Members Input, upcoming rides


The ATV Club often receives requests for suggestions for camping areas and/or OHV rides in and around Kanab. They are simply referred to this ATV Club website and told to click on the "Staging Areas and Events Tab". Then go to Kane County ATV Trailheads and (Staging Areas)

This lists ten staging areas within 30 miles of Kanab, most offer dry camping availability, some with pit toilers, all have GPS coordinaces and photos.


Attention all members; 

For information about ATV Club merchandise send an email to the sales and marketing officer indicating your interest to this email address. utazatvclubinfo@gmail.com