|BLM lands in Emery County continue to cause controversy.|
The Emery County Public Lands Council discussed the lawsuit filed by USA-ALL against Emery County. Chairman Dennis Worwood said USA-ALL contends that it was illegal for the BLM to close alleged RS-2477 roads under the route designation plan. USA-ALL contends that the county must either open closed routes, or abandon them. Worwood contended that the county cannot abandon a road which they do not have title to. No RS-2477 titles have been resolved.
The environmentalists are trying to delay the RS-2477 process in the courts. Worwood said he was once the head of the access committee and the consensus seemed to be that people did not want unlimited access, but places to drive and enforcement of the rules. The Southeastern Utah OHV club approached the committee with money to hire a deputy, but the county declined at the time because there wasn't a travel plan or a map to follow. Worwood said, "We heard about it for months."
The BLM completed a plan which the county does not fully agree with, but it is a starting place according to Worwood. The RS-2477 roads will be settled by a separate legal process.
The BLM contributes funding for a deputy's wages to patrol the Swell.
According to Emery County Sheriff Lamar Guymon, Deputy Ray Jeffs who is assigned the desert patrol cannot enforce federal statutes. If he sees someone riding on a closed road, he can educate them and give them a map showing that the road is closed, but cannot issue them a ticket. A county deputy can only enforce state statutes. Someone receiving a ticket from a federal enforcement officer will appear in federal court, these cases are not tried on a county level. A case in point recently involving ATV abuse by six Emery County riders; these riders were given tickets for destroying the land, not for riding on closed roads. They appeared before Judge Stan Truman of the Justice Court of Emery County where they received sentencing. The six residents were cited on state statute 41-22-10.1. Deputy Jeffs has given out two cases of maps outlining designated trails. Deputy Jeffs said, "Someone needs to be there to help protect and inform the people."
Having Deputy Jeffs as a presence on the Swell each day has led to a lot of education for users. Deputy Jeffs has been the first responder in many accident cases and his quick assistance has led to the rescue of a hiker and they were able to save the man's life because of the quick response.
Tory Killian, council member said she would like to have an expert on RS-2477 road issues address the land council. There is much confusion on the RS-2477 issues. Everyone agreed this would be a good idea and will arrange for someone to come before the council.
Worwood said the 1872 mining revised statute-2477 states that the public has the right to construct roads across public lands and can do so. When the Federal Land Policy Management Act came along in 1976 it was the blueprint for the BLM to do business. It stated that the roads already there would be recognized, but no inventory of these roads was taken and no maps of them on record. FLPMA also did not define a highway or what it meant by construction. Was construction by use? did that make it a road? or was construction something done with heavy equipment? "What we're left with is a debate now on what a highway is and what it isn't, the courts will define it," said Worwood.
"I think that USA-ALL is premature with their lawsuit. The county has spent countless dollars and time documenting the RS-2477 roads in our county. All of this information is at the State Attorney General's office waiting for the go ahead from the state. They have specifically told us not to release any of this RS-2477 information we have gathered prematurely or the environmental groups can use this information to plan their next attack. The titles to these roads are in dispute. We cannot open or abandon a road which we do not have title to. These roads will be determined in court. If the USA-ALL logic holds up, then the BLM would not be able to do a travel plan until all the RS-2477 road issues were settled and this could take decades. That is not in everyone's best interest. Every time I have talked to access groups they all want protection as well as access. They are asking us to do the impossible. When the BLM route designation plan first came out the access groups endorsed the travel plan and now they have done a 180 degree turn around. They didn't protest it during the time of the comment period.
"The county has a lot of documentation on roads. We have old maps, old photographs, oral histories, surveyor's logs, old Emery County Progress articles on road building, like the Eva Conover Road. All of this data is waiting to be used when the state moves forward. I think USA-ALL has jumped the gun. I am not sure we will be any happier with the RS-2477 road decisions, it will depend on how a judge defines a road. In the BLM route designation plan, everyone got a little something out of it. I think a lawsuit is a waste of county resources. I think the lawsuit sends the wrong impression on the motorized recreation community. The public might view the lawsuit as evidence that motorized recreation can't live by the rules and don't want enforcement. I think the lawsuit is a disservice to responsible motorized people who have worked hard to preserve access. I think the lawsuit makes it harder to pursue access. We can't legally abandon or open a road without the title.
"When the BLM came out with the route designation plan it was 10 years in the making and thousands of public comments were considered. USA-ALL has contended that access issues can be taken care of under FLPMA. The route designation plan is a way of dealing with access issues under FLPMA. I don't understand why USA-ALL doesn't take the opportunity to prove that a FLPMA based plan can work instead of fighting against it and trying to block implementation. There will never be a perfect plan because the BLM has to take comments from everyone. In my opinion, they (USA-ALL) should help make it work instead of trying to block it. With the new resource management plan due out soon from the BLM, there will be an opportunity to reexamine some of those roads. There will be a comment period on the draft RMP," said Worwood.
Commissioner Drew Sitterud pointed out the recent Judge Campbell ruling on roads within the Grand Staircase Escalante Monument, out of the 16 disputed roads only one of those roads was recognized. Sitterud said they have never won anything in the 10th district court.
Worwood pointed out that since 1976 land battles have been fought and the only winners have been the lawyers.
Killian said that when RS-2477 was repealed in 1976 and FLPMA implemented, that it stated all existing RS-2477 roads would remain valid. Worwood said yes, they were grandfathered, but we don't have right of way and title to these roads.
It was also pointed out by Commissioner Gary Kofford that in the 70s the roads on the Swell were offered to the county to be taken over and they were refused at that time because the county did not have the resources to maintain all of the roads.
It was also stated that the lawsuit alleges that the roads being closed are Class D roads, which Commissioner Kofford stated isn't the case because the Class D roads are major roads through the county. In Kane County the sheriff and commissioners did what USA-ALL wants Emery County to do, they tore down barricades and now are facing charges for doing so.
Worwood stated in the 20 years since he has been working with public lands issues. That the definition of a road has changed three or four different times depending on who is in office.
In the route designation plan the BLM looked at whether or not there was more than one access to a destination and if there were two or three parallel roads then one of them would be closed.
Some of the RS-2477 roads are within WSAs and Killian said that even these roads should be open because they are RS-2477.
Kofford said these roads have been part of the WSA for 30 years and it's not likely they will be opened again. Worwood said it will be a long war in dealing with these road issues and it will be decided in the courts. Kofford said when things do get settled it will probably not be to our liking.