Dispute Over Utah’s Oil Shale Flowers Heads Back to Court | The Salt Lake Tribune

January 3, 2015

By Brian Maffly

Penstemon 1“The 31-year fight over Utah’s beardtongue, rare wildflowers that grow only near the Uinta Basin’s oil shale outcrops, is far from over despite a new conservation plan that state officials say ensures the plants survival should oil shale mining take off.

This week, the Utah Native Plant Society and other conservation groups formally accused the U.S. Fish and Wildlife Service of ignoring science and caving to political pressure from oil and gas interests when it withdrew a proposed listing for Graham’s and White River beardtongue, also known as penstemon, under the Endangered Species Act (ESA).”

Read full story | The Salt Lake Tribune

Change Coming for Coal Combustion Residuals, Leasing Prices on Public Lands

Two changes in federal environmental management and land regulation are on the horizon.

On December 19, 2014, the EPA signed the Disposal of Coal Combustion Residuals from Electric Utilities final rule.

“EPA finalized national regulations to provide a comprehensive set of requirements for the safe disposal of coal combustion residuals (CCRs), commonly known as coal ash, from coal-fired power plants . . . The rule establishes technical requirements for CCR landfills and surface impoundments under Subtitle D of the Resource Conservation and Recovery Act (RCRA), the nation’s primary law of regulating solid waste.”

EPA Website, 2014 Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities

 
The rule has not yet been published in the Federal Register. To see the pre-publication version of the final rule, click here.

Next month, federal land managers will release proposed rules to change the pricing structure for oil, natural gas, and coal leases on public lands.

“The proposed rules are the key part of an effort the Interior Department has taken in recent years to better ensure that it is getting fair prices for federal energy resources. Current oil and gas valuation rules are more than two decades old and coal rules are a decade old, Interior said Friday. The coal rules would also apply to American Indian land.”

The Hill | Regulators Want to Change Energy Pricing Rules for Federal Land

 
For more on this proposed rule, click here.

Grand Canyon Uranium Mining Withdrawal Upheld

Grand Canyon

Prescott, Arizona

On September 30, 2014, the federal district court in Arizona granted summary judgment in favor of the former Secretary of the Interior Ken Salazar. The court ruled that the Secretary’s withdrawal of 1,006,545 acres surrounding Grand Canyon National Park from uranium mining in 2012 was in compliance with the law. The Plaintiffs (several mining associations, multiple counties, a private individual, and the Arizona Utah Local Economic Coalition) claimed that the withdrawal violated the National Environmental Protection Act (NEPA) and the Federal Land Policy and Management Act (FLPMA).

NEPA directs government agencies to prepare Environmental Impact Statements (EISs) analyzing environmental effects any time there is a project proposal or action impacting federal public lands. As part of this process, agencies gather, develop, and carefully consider information and studies concerning potential impacts. The BLM prepared a draft EIS to determine the effects of uranium mining on the Grand Canyon, which was then opened up for public comment. When that process was completed, the Department of the Interior issued a Record of Decision (ROD) formally withdrawing the lands from mining for 20 years.

Plaintiffs argued that the BLM could not withdraw the land because there was a lot of uncertainty regarding the impacts of uranium mining on the Grand Canyon. The size of the proposed withdrawal area and its location as remote forest and rural land meant that relatively little data was available for the EIS analysis. They also argued, and the BLM agreed, that uranium mining presented a low risk of significant environmental harm.

Despite these uncertainties, the district court upheld the withdrawal. It ruled that Secretary Salazar did not abuse his discretion by proceeding cautiously and withdrawing the 1 million acres surrounding the Grand Canyon. The court explained that Department of the Interior could exercise caution “when faced with uncertainty due to a lack of definitive information, and a low risk of significant environmental harm.” The lands will be closed to any new uranium mining claims for 20 years. Current mines may still operate because they are grandfathered into the withdrawal as “preexisting rights.”

The district court’s decision is currently on appeal to the Ninth Circuit Court of Appeals.

R.S. 2477 Why is Utah Involved in Roads Litigation?

Factory Butte

Why is Utah Involved in Roads Litigation?

The State of Utah and most of its counties have filed 22 quiet title lawsuits in federal court seeking judicial determinations of their rights in and to some 12,000 roads. It is a legitimate question to ask why. To answer this question one needs to examine the history behind the creation, and the duration and current importance of these roads, and as well as the legal bases for the lawsuits.

The settlement of the West shaped the public land laws in the United States. To foster this settlement, the federal government instituted specific laws that gave rights to individuals, companies, and governmental entities to acquire, develop, and pass through the government’s vast western lands. Then came the homesteads, ranches, miners, and communities that were facilitated by right-of-way grants for roads, railroads, and canals.

I. R.S. 2477 and the Roads Built Under Its Authority

In 1866, Congress passed the Mining Act, including Section 8, that later became Revised Statute 2477 (“R.S. 2477”). R.S. 2477 granted rights-of-way across federal lands for the construction of highways. It states simply “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” Through this enactment, Congress granted the public the right to construct roads whenever and wherever convenient and necessary to the settlement and development of the West. R.S. 2477 is the reason why most roads exist in the western United States. This law was instrumental in the settlement of the West.

Congress could not have contemplated today’s four or six-lane highways when it used the term “highways” in 1866. At that time, “highway” was an all-inclusive term that encompassed all ways of public passage, which were almost exclusively dirt roads and two-track wagon trails. As the western United States grew in population and progressed in technology, the need for a well-developed transportation system also increased. Shortly after the turn of the century, roads began to accommodate motor vehicles. As public travel increased in Utah, the counties commenced maintaining the major and frequently traveled roads. Smaller routes were maintained simply by ongoing public use whenever necessary or convenient . The public used the roads to homestead, range cattle, prospect, move between settlements, hunt, fish, gather fire wood to heat homes, cut fence posts, or simply to enjoy Utah’s spectacular scenery. Entire communities used these roads for town-wide picnics, scouting, camping and family reunions.

R.S. 2477 was the authority for constructing the roads to such famous mining sites as Alta, Bingham Canyon, Park City, and Carbon County, to name a few. Other mines in northern, central, and southern Utah were similarly established. Mineral products worth millions of dollars came across these roads.

As the population grew, many roads were widened, graded, and surfaced. Original road graders were as simple as a metal grade pulled behind a team of horses. Motorized bulldozers or road graders first started appearing in the 1930s. These machines were used to build roads to power sites, mines, water storage facilities, cabins, resorts or to provide any other necessary public access. As WWII approached, the need for roads increased with growing demand for mineral and other natural resources, as well as the need to access military installations. Roads were also constructed in Uintah and Duchesne counties to access gilsonite mines, as well as oil and gas fields in the later years.

In the early 1950s, roads continued to be built to accommodate the mining of uranium and the drilling for oil and gas. Many of the roads throughout Grand, San Juan, Kane, Garfield, Wayne, and Piute counties were constructed to prospect for either oil and gas or uranium.

In the 1950s, the U.S. military started selling surplus Willys Jeeps. Consequently, the areas previously inaccessible became open due to four-wheel drive exploration. Individuals driving jeeps and pickup trucks got to explore and discover many remote areas and destinations in Utah, including such landmarks as Angel Arch in San Juan County and many arches in Grand County. The public used existing roads or constructed new roads to visit these landmarks.

Other counties experienced a growth in tourism and other activities, including the movie industry filmings in Southern Utah. During the twentieth century, Hollywood fell in love with the authentic Old West flavor of Kanab in Kane County and the surrounding area of “Little Hollywood,” where more than 100 movies and TV shows had been filmed. The actors, directors, extras, and film professionals working on movies filmed in Kane County used many roads constructed under R.S. 2477. Movie buffs continue to travel to Kanab to visit nearby Pariah, Johnson Canyon, and Kanab Canyon movie sets.

R.S. 2477 roads helped develop Utah’s outdoor recreation and tourism industries. Roads leading to river guide loading and unloading areas on the Green and Colorado rivers are R.S. 2477 roads. Roads to national parks, recreation areas, and scenic views are R.S. 2477 roads. People visited the areas now covered by the national parks using these public rights-of-way long before the federal government designated them as national parks, monuments, or recreational areas.

However, all of the R.S. 2477 rights-of-way in existence at the time of the Federal Land Policy and Management Act’s passage in 1976 were to be recognized. In contrast to the mining claims that require patent application, the federal government simply granted open-ended rights-of-way to the R.S. 2477 roads without any formal process to obtain federal recognition of these claims. Because these roads were open to any and all who wanted to use them, there had been no need to prove ownership of these routes against the federal government. The pre-1976 judicial decisions on R.S. 2477 right-of-way usually dealt with private landowners closing roads to public use.

II. The Federal Land Policy and Management Act of 1976 and R.S. 2477 Roads

In 1976, with the congressional passage of the Federal Land Policy and Management Act (FLPMA), the United States adopted a policy of land retention and preservation. FLPMA repealed R.S. 2477, but grand-fathered existing roads. Under FLPMA, the public could not build any new roads across federal lands without obtaining a permit from the federal government.

III. Federal Policy Shift Towards Conservation

Starting in the 1980s, and notwithstanding FLPMA’s admonition regarding existing roads, the federal government began asserting the right to close these public roads. Currently, many of these roads are closed to public use. Along with a continuing trend of road closures, the federal government has refused to recognize, without court order, the R.S. 2477 roads that were established before 1976. Aware of the federal government’s reluctance to recognize these roads, and concerned that the federal government would close more of them, the State decided to pursue judicial recognition of the State and counties’ title to the roads by filing quiet-title lawsuits in the federal court, the only forum that can hear such cases. The State seeks to reopen closed roads and prevent the federal government from closing more roads by proving that the State has title to the pre-1976 rights-of-way that the federal government had granted under R.S. 2477.

IV. State of Utah Aims to Balance Conservation with Responsible Use

The roads that the State is claiming vary widely in terms of use, breadth, and condition. Some of the roads are one-hundred feet wide and are black topped. Others are simple dirt, two-track roads. Most are easily passable in two-wheel drive vehicles, but some require four-wheel drive. None of these roads are “hiking trails” or “cow paths” as has been asserted by those who are opposed to R.S. 2477 determinations.

It must be kept in mind that in 1866 most of the roads were two-track roads. They were the “highways” of their day. In addition, the State has made every effort to weed out roads that are no longer being used, are overgrown, that do not appear on historical aerial photographs, topographical maps or road maps, or that are not supported by witness testimony. The objective is simply to establish, under applicable law, which rights-of-way were inexistence in 1976. Under the present conditions, those are decisions only the courts can make, and the State is obligated to present the facts, on a road-by-road basis, so that these judicial determinations can be made.

Proving that the State of Utah has title to an R.S. 2477 right-of-way does not mean that the road will be widened or paved. In fact, under existing case law, counties would likely need permission from the federal government to widen, surface, or otherwise improve the roads. However, the more significant issue is that public highways established under R.S. 2477 are prior existing rights. The federal government must protect and preserve these rights in the planning process for its management of the public lands.

When you venture off of paved roads to access a campsite, scout camp, fishing hole, or to view a beautiful vista, chances are you are on an R.S. 2477 road. If the State is able to keep these roads open to the public, everyone will be able to enjoy Utah’s great outdoors — not only those who are physically fit or financially able. The R.S. 2477 roads allow the elderly, the disabled, the very young, and those generally not able to engage in strenuous physical activity to enjoy Utah’s recreational opportunities.

A good example of what can happen if the State fails in its efforts to prove that roads qualify under R.S. 2477 is the recent court ruling regarding the Salt Creek Road in Canyonlands National Park. This road has historically provided the only vehicle access to Angel Arch, one of Canyonlands most iconic features. The State’s inability to prove an R.S. 2477 right-of-way for the Salt Creek Road means that to visit the Angel Arch visitors must hike 18 miles.

Utah earns tens of millions of dollars from shared mineral lease funds derived from the public lands. Currently, there is an effort to declare some of the best areas for potential mineral development off limits to drilling as “roadless,” even though multiple user-created roads exist in these areas. Many of these roads were on the ground prior to the cut-off date (October 21, 1976) for establishment of the R.S. 2477 roads. If the federal government locks up these resource rich areas, Utah’s schools and local governments would lose billions of dollars in future mineral lease payments. Those funds either have to be made up through increased taxes or through cuts to education, resulting in larger class sizes and increased pressures on teachers and resources. If Utah proves that the existing roads were on the ground prior to 1976, the State will then keep the roads open to access its mineral resources.

There are many areas that should be “roadless” in the state. Even if the state owns an R.S. 2477 right-of-way, it can abandon it by way of an agreement. Recently, the State and the federal government agreed to do so in Juab County, as part of a settlement in exchange of opening a road in the Deep Creek Mountains to restore access to a favorite local campground closed for many years. However, before Utah can negotiate reopening of closed roads, it must establish its ownership of R.S. 2477 rights-of-way in federal court. This is the only way to determine who owns the roads. This is what the effort is about; and this is why the state litigates these roads.

Why is Utah suing now instead of waiting until a road is closed?

The simple answer is that the passage of time works against the State’s interest. The courts require the State to show for most of the roads that the public used the road “continuously” for a period of ten years prior to 1976. To prove this, Utah must have witness testimony of public use no later than between 1966 and 1976. Most witnesses old enough to remember using the roads in 1966 are now over 60. The better witnesses were adults in the 1960s and 1970s. This means that they are likely now over 70. In thirty years, there will be very few witnesses alive. In one Utah county, the number of witnesses with personal knowledge of the roads in 2003 went down by 40% by 2010 as a result of death or dementia. By 2040, no one will be alive who had traveled or used the roads prior to 1976. If Utah waits, it will never be able to prove its case on approximately 75% of its roads.
Utah is always willing and eager to negotiate R.S. 2477 resolutions as it did in Juab County. Settlement, however, requires a willing partner. The State continues to extend an open invitation to our federal partners to discuss settlement as soon as they are ready, willing, and able.