Emery County Files Intent to Sue
|Grazing continues to be a concern with the BLM Resource Management plan.|
Emery County in conjunction with the Utah Attorney General's Office has filed a notice of intent to sue the Department of Interior on 10 roads within the Price Field Office of the Bureau of Land Management's jurisdiction. The roads include the following roads closed with the 2003 Route Designation Plan: Copper Globe, Devil's Canyon, June's Bottom, Link Flat, Picture Flat to Miller's Canyon, Red Hole Draw, Seger's Hole, Short Canyon and two roads closed in the 1991 Resource Management Plan, Mexican Mountain and Swasey's Leap.
The Emery County Public Lands Council was informed of this intent to sue at their regular monthly meeting on Oct. 12. Public Lands Director Ray Petersen informed them of this decision. Public Lands Council chairman Dennis Worwood commented on the road issue. He said three counties went together to sue for 16 of their roads and only one road was recognized by the court. This set a bad precedent, but Worwood said the county hopes to establish better precedent in having roads recognized in the courts. Worwood deemed the failure of the initial lawsuit by the other counties to the narrow definition of a road by Judge Tina Campbell who heard the case.
The success of a court case will depend in the end on the definition of a road by the judge involved. Emery County Commissioner Drew Sitterud reminded everyone that they will lose all title to the 1991 road closures if they don't act now.
Emery County Commissioner Ira Hatch described the 10 road list as just a start and not an all inclusive list of roads to be pursued. There are other roads which the county will continue to pursue and this short list does not contain all the roads with which the county is concerned.
Worwood said the county has worked hard in documenting the roads and taking oral history on how each road came into existence. He said he hopes the county has a better outcome working with the Attorney General's office in going after title on those roads.
Petersen said the notice of intent to sue sets a six month clock in motion and unless something happens with the local BLM to work out these road closures then the matter will go to court. Petersen is hopeful that in working with the local BLM some of these road closures can be resolved without legal action.
"When the BLM route designation plan first came out we recognized that on the ground enforcement doesn't resolve the RS-2477 high profile roads. It was bound to come to this because there are just some roads we don't agree on and now a judge will decide. We disagree with the BLM and we have a good case, but we will still maintain a good working relationship with the Price Field Office as these issues are resolved.
"In conjunction with the Emery County Economic Development Council there will be a public information meeting on making comments on the Resource Management Plan. The deadline was recently extended to Nov. 29. It will be held at the county building at 6:30 on Nov. 16," said Petersen.
Mark Ward, assistant attorney general for the state of Utah said the notice of intent was filed on Aug. 31. His office is still in contact with Emery County and the possibility of amending that original notice of intent would reset the six month time period. Ward stressed the need to be extremely careful in how the notice of intent is laid out because that will set the ground work for the lawsuit and "we don't want to reinvent the wheel down the road."
Ward said the case will be filed in the United States District Court of Utah. The lawsuit will be randomly assigned to a panel of judges. Judge Campbell is still on board and could be assigned to the case. The case of San Juan, Kane and Garfield counties is now in the appeal process. Ward explained that the state of Utah has filed a friend of the court brief in behalf of the three counties.
The briefing has been completed on all sides of the case and currently a date is being waited for from the 10th Circuit Court of Appeals in Denver for the hearing of oral arguments afterwhich they will issue a decision. The case has drawn interest from SUWA and other national environmental groups. An appeal of any decision made in favor of the three counties will likely be appealed by the environmental movement.
"That case is important because fundamental issues are at stake defining the meaning of RS-2477 roads and proving their existence and the scope of such roads. It will set an important precedent that may have ramifications in the case just filed by Emery County. Our lawyers are working closely with those counties on their case," said Ward.
Ward reported that environmental groups are always petitioning his office for information and trying to ascertain the strategy of the state in dealing with RS-2477 roads. They are always trying to find out the state's next move to plan their own strategy in fighting to keep roads closed.
Ward believes the Emery County Commission is justified in responding to the BLMs illegal and improper closing of those 10 valid roads within the county and they are proceeding, "full steam ahead," although Ward described the process as being slow and tedious.
"Emery County has put forth good effort and they compare well with the other counties in preparing to fight for their roads. They have a comprehensive way of identifying roads and have done a good job in my opinion of documenting that system of roads within their county and preparing a transportation map," said Ward.
Ward said his office has been working closely with Emery and Carbon counties in preparing responses to the recently released BLM resource management plan. They have notified the BLM that the transportation maps of both counties should be considered when addressing transportation within the RMP. The law directly on point is in Sec. 17 of the Federal Land Policy Management Act which states county plans are to be considered and the BLM plan must remain consistent with state and local plans according to federal law.
Ward is concerned with the other issues raised in the RMP in addition to roads. There are many items in the draft RMP which are inconsistent with the county plans of Emery and Carbon counties. The Attorney General's office has filed comments and will continue to make additional comments with the extension of the comment period. Grazing, areas of critical environmental concern, permitting and a whole host of issues concern Ward in dealing with the RMP.
Ward said that legislation in 2002 by the state legislature has allowed funding for his office to work directly with the counties on their legal issues. Three lawyers are currently working on the RS-2477 road matters.