7 F.Supp.2d 1205 (D.Utah 1998), 2 95 CV 559, Southern Utah Wilderness Alliance v. Dabney

Docket Nº:2 95 CV 559
Citation:7 F.Supp.2d 1205
Party Name:Southern Utah Wilderness Alliance v. Dabney
Case Date:June 19, 1998
Court:United States District Courts, 10th Circuit, District of Utah
 
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7 F.Supp.2d 1205 (D.Utah 1998)

SOUTHERN UTAH WILDERNESS ALLIANCE, a nonprofit corporation, Plaintiff,

v.

Walt DABNEY, in his official capacity as superintendent of Canyonlands National Park; Joseph Alston, in his official capacity as superintendent of Glen National Recreation Area; John Cook in his official capacity as Regional Director; and the National Park Service, Defendants,

and

The Utah Trail Machine Association; the Blue Ribbon Coalition; the High Desert Multiple Use Coalition; the United Four Wheel Drive Associations of U.S. & Canada; and the Historic Access Recovery Project, Defendant-Intervenors.

No. 2:95 CV 559 K.

United States District Court, D. Utah, Central Division.

June 19, 1998

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Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, for Southern Utah Wilderness Alliance.

Stephen L. Roth, U.S. Attorney's Office, UT, for Walt Dabney, Joseph Alston, John Cook.

Hal J. Pos, Parsons Behle & Latimer, Salt Lake City, UT, William Perry Pendley, Steven J. Lechner, Mountain States Legal Foundation, Denver, CO, for Utah Trail Machine Association, Blue Ribbon Coalition, High Desert Multiple Use Coalition, United Four Wheel Drive Associations of U.S. & Canada, Historic Access Recovery Project.

MEMORANDUM DECISION AND ORDER

KIMBALL, District Judge.

Plaintiff Southern Utah Wilderness Alliance filed this action against the National Park Service challenging the Park Service's decision to implement a Backcountry Management Plan in Canyonlands National Park and the Orange Cliffs Unit of Glen Canyon National Recreation Area. The Utah Trail Machine Association, in conjunction with several similarly interested organizations, intervened as defendants. Now under consideration are Plaintiff's motion for summary judgment and the Park Service's cross motion for summary judgment. 1

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BACKGROUND

The Backcounty Management Plan ("BMP") at issue continues the Park Service's previous policy of allowing the use of four-wheel-drive vehicles on rough jeep tracks or trails traversing Canyonlands National Park and portions of the adjoining Glen Canyon National Recreation Area. The present controversy concerns such trails in Salt Creek Canyon, Horse Canyon, and Lavender Canyon (the "Canyons"). 2 Beyond certain points, these trails are passable only in a high clearance four-wheel-drive vehicle operated by an experienced driver.

The Canyons

Salt Creek and Horse Canyons compose the majority of the Salt Creek Archeological District. Salt Creek is the only year-round, fresh water creek in the Park other than the Colorado and Green Rivers. The Salt Creek Jeep Trail 3 runs in and out of Salt Creek. In fact, at various points, the trail's path is itself the creek bed. There is no practical way to reroute the trail to keep it out of the water course. In the years preceding the BMP's development, the Park Service had received numerous requests for assistance in removing vehicles that had broken down or become stuck in the trail. Instances where vehicles lost transmission, engine, or crankcase fluids in the water also occurred several times a year.

Rivers and their banks are very rare and important to the desert ecology. Such riparian areas support plant, aquatic, and animal life forms that are not found elsewhere. When disturbed, the areas are slow to, or do not, recover with native vegetation. The riparian areas in Salt Creek Canyon suffered greatly from this vehicle use. At the same time, the Salt Creek Jeep Trail is the only means of vehicular access to Angel Arch, a well-known landmark and popular destination among four-wheel drivers.

A trail in the adjacent Horse Canyon is the only means of vehicular access to another popular destination, Tower Ruin. Like the trail in Salt Creek, the trail in Horse Canyon is passable only by four-wheel-drive vehicles. The trail follows the canyon's dry wash bottom. While riparian habitat is not of concern, the presence of vehicles and vehicle passengers jeopardize Horse Canyon's pristine archeological resources, which include ancient Native American ruins. Such resources have diminished value once disturbed or altered.

Jeep trails also traverse two other areas with exceptional natural and cultural features, Lavender Canyon and Davis Canyon. Vehicles endangered these canyons because they were constantly driven beyond the trails' ends, effectively elongating the trails, and because vehicle passengers constantly camped in violation of regulations. Under the Park Service's then-current policy, vehicle use of the trails was unrestricted.

Development of the BMP

The Park Service determined to develop and implement the BMP to address dramatic increases in the numbers of people visiting the area. Work began in the summer of 1992. In the scoping phase, the Park Service identified the problems and issues to be addressed in the BMP, actively soliciting public input through a variety of means, including publication of a Notice of Intent to Prepare the BMP in the Federal Register.

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Thirty-eight issues were identified in this phase, including impacts from aircraft overflights, rock climbing, bicycles, saddle and pack stock, and vehicles. Much discussion arose over the balance to be struck between public demand for vehicular access and public demand for preservation of the riparian and cultural resources in Salt Creek and Horse Canyons.

In the fall of 1992, the Park Service issued a newsletter, discussing the planning process to date and soliciting possible solutions to the 38 issues, as well as assistance in identifying additional issues. During December 1992 and January 1993, the Park Service hosted public discussions in a variety of locations in Utah and Colorado.

The Environmental Assessment

Between February 1993 and December 1993, a committee of park employees developed a draft plan or environmental assessment, which was released to the public on December 18th. The draft ("EA") 4 described the Park's current policies, alternatives for change, and the environmental consequences of the alternatives described, including the alternative of taking no action. The EA identified the Park Service's preferred alternative for each problem. If a near consensus of respondents suggested one alternative over another, and if that alternative met with Park Service mandates and policies, then public preference determined the preferred alternative.

With respect to the trails, the preferred alternative was to close the Salt Creek Canyon to vehicles after a particular landmark, Peekaboo Spring, leaving 10 miles to be traversed by foot before reaching Angel Arch. To prevent a corresponding increase in the use of Horse Canyon and to protect its archeological resources, vehicle access beyond Tower Ruin would be by guided tour only. Alternative A was the same except with earlier closure points. Alternative B would close both canyons to vehicles, but allow guided tour vehicles in Horse Canyon. Alternative C would simply close both canyons. Under the preferred alternative, 14.25 miles of unpaved road would be closed, reducing the approximate total in Canyonlands from 194 to 179.25.

The preferred alternative for Davis and Lavender Canyons was to leave them open--the no action alternative. The second alternative was to close them both.

The EA also listed alternatives recommended by public comment that were considered but rejected. These included closing all the roads in the planning area, which was rejected as unworkable "due to the popularity of vehicle camping and use," and limiting use by implementation of a permit system, which was rejected as cost prohibitive and overly restrictive.

Over 2000 copies of the draft were distributed to the public. The ensuing review period lasted until March 5, 1994. During that time, the Park Service held numerous public meetings, including meetings with a wide range of special interest groups.

In a briefing statement prepared shortly after the meetings' concluded, the Park Service noted the emergence of major controversy with respect to three proposals--those imposing group size limits, placing restrictions on rock climbing, and closing roads. With respect to the latter, the Park Service noted that "the proposal to close any road has touched a nerve in the four-wheel-drive community."

The Final BMP

The final BMP 5 was released on January 6, 1995. The BMP adopts a zoning system, dividing the planning area into 19 zones defined with reference to the fragility and uniqueness of the natural resources located within the zone. Visitor use within each zone is permitted accordingly. The trails in the Canyons were to remain open to vehicle traffic, but access would be limited to those obtaining permits. Twenty-four vehicles per day would be allowed into the Salt and Horse Canyon zone; ten per day would be allowed into the Lavender Canyon zone. A one-half mile segment of the Salt Creek Jeep Trail

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would be closed, as well as approximately seven miles elsewhere in the planning area, including the trail within Davis Canyon, which is three miles long.

Plaintiff's Action

Plaintiff...

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