Utah's Burr Trail still leads to court

by Elizabeth Manning

A tentative cease-fire over the management of southern Utah's Burr Trail ended abruptly Feb. 13 when a Garfield County road crew bulldozed a hillside inside Capitol Reef National Park.


Garfield County officials say it was "just something that had to be done" to maintain the "county-owned" road. But Terri Martin of the National Parks and Conservation Association calls it "a deliberate act of destruction, vandalism and arrogance," and the Park Service considers it grounds for a lawsuit.


It's the latest twist in a nine-year struggle over this 66-mile route (HCN, 4/10/89). The Burr Trail, also called the Boulder-to-Bullfrog road, winds through some of Utah's most spectacular canyon country as it crosses Capitol Reef National Park, Glen Canyon Recreation Area and several Bureau of Land Management wilderness study areas. The county says it owns the entire road while park service officials acknowledge county ownership of only the first 28 miles. But no matter who owns the road, federal agencies claim jurisdiction over sections that cross publicly owned land.


Garfield County Commissioner Louise Liston says she expected the bulldozed hill to prompt a chiding from the Park Service. Instead, Park Service officials served county officials with an ultimatum: Either promise to reclaim the hilllside and sign a maintenance agreement or face a lawsuit. The county refused, so once again the Burr Trail dispute is headed toward federal court.


If the Department of Justice takes on the lawsuit, it will be the fourth federal district court case over the Burr Trail in nine years, says Bill Lockhart, a lawyer who represented environmental groups in previous litigation. There have also been three appeals to the 10th Circuit Court and three administrative appeals to the Interior Board of Land Appeals, he says. Usually the plaintiffs are environmentalists and Garfield County; this lawsuit would mark the first case initiated by the National Park Service.


County Engineer Brian Bremner says park officials are "making a mountain out of a molehill." He points to an easier relationship with Bureau of Land Management officials, who have permitted the county to pave most sections of the road with chipseal and gravel.


Environmentalists say there's far more at stake than just the Burr Trail. At the heart of the dispute is an unresolved battle over a one-sentence provision known as RS 2477 in the federal Lode Mining Act of 1866 (HCN, 3/21/94). Although 110 years later the 1976 Federal Lands Protection and Management Act (FLPMA) repealed RS 2477, it didn't repeal "pre-existing RS 2477" routes.


Many county officials, especially in Utah and Alaska, claim thousands of dirt roads, "two-tracks' and trails that cross public land. But almost no guidelines exist to determine what constitutes a pre-existing road, says Terri Martin. A 1988 policy statement by former Secretary of Interior Donald Hodel allowed counties to claim RS 2477 ownership of even primitive routes. Then, when Secretary of Interior Bruce Babbitt tried to clarify the matter through regulations in 1994, Congress thwarted his actions with a moratorium. Now Congress is considering H.R. 2081, a bill sponsored by Rep. Jim Hansen, R-Utah. Critics say the bill allows virtually anyone to claim a right-of-way by drawing a line on a map and providing a general description of the route. Then the burden of proof shifts to the Department of the Interior: If a federal agency disagrees with a particular road claim, the Secretary of the Interior must disprove it within two years.


Environmentalists worry that a liberal interpretation of RS 2477 could cause primitive trails to become motorized throughfares. "The best way to keep the land wild is to keep the road primitive," says Martin.


Ironically, the Burr Trail flare-up comes at a time when Garfield County and the Park Service had managed to agree on road improvements for the first six miles of the unpaved park stretch. Although the county had filed an appeal of the agency's 1995 Environmental Assessment governing the road work, county road crews worked alongside park officials to make minor improvements. Then, in the last mile, everything fell apart: The county wanted to cut away a hillside to fix a blind curve; park officials told them they would have to complete another environmental study to do such major road work.


Louise Liston says the county had already waited three years for the Department of Interior to finish its study, and it wasn't about to wait another three years to fix the last mile. County employees simply finished the job, she says. County officials say they're surprised by the Park Service's sudden aggression; most believe local park officials are being manipulated by superiors in Washington, D.C.


"I equate it to a marriage that has some troubles but is basically working," says county engineer Bremner. "Then a mother-in-law from Washington, D.C., sticks her nose in and starts telling one partner what to do."


For more information, contact Garfield County offices at 801/676-8826, Capital Reef National Park at 801/425-3791 or National Parks and Conservation Association at 202/223-6722.


* Elizabeth Manning





Elizabeth Manning is HCN staff reporter. © High Country News