Kane County, Utah v. Kempthorne

• Decision Date: 29 June 2007
• Docket Number: Civil No. 2:05-CV-0941BSJ.
• Citation: 495 F.Supp.2d 1143
• Parties: KANE COUNTY, UTAH, a Utah political subdivision, et al., Plaintiff, v. Dirk KEMPTHORNE, in his official capacity as Secretary of the Interior, et al., Defendants, National Trust for Historic Preservation, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Utah

495 F.Supp.2d 1143

KANE COUNTY, UTAH, a Utah political subdivision, et al., Plaintiff, v. Dirk KEMPTHORNE, in his official capacity as Secretary of the Interior, et al., Defendants National Trust for Historic Preservation, et al., Intervenor-Defendants.

Civil No. 2:05-CV-0941BSJ.

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

June 29, 2007.

COPYRIGHT MATERIAL OMITTED

A. John Davis, Matthew L. Crockett, Shawn T. Welch, Pruitt Gushee, Salt Lake City, UT, for Plaintiff.

Thomas K. Snodgrass, U.S. Department of Justice, Denver, CO, Carlie Christensen, Jared C. Bennett, U.S. Attorney's Office, Salt Lake City, UT, for Defendants.

James S. Angell, Edward B. Zukoski, J. McCrystie Adams, Earthjustice Legal Defense Fund, Denver, CO, Stephen H. Bloch, Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT, for Intervenor-Defendants.

MEMORANDUM OPINION & ORDER

JENKINS, Senior District Judge.

On January 22, 2007, the above-captioned proceeding came before this court for a hearing on pending motions. Shawn T. Welch and Matthew L. Crockett appeared on behalf of the plaintiffs Kane and Garfield Counties, their Boards of Commissioners and the Kane County Water Conservancy District (the "Counties"); Thomas K. Snodgrass and Jared C. Bennett appeared on behalf of Dirk Kempthorne, the Secretary of the Interior,¹ the Interior Department, the Bureau of Land Management, Kathleen Clark, Gene Terland and David Hunsaker (the "Federal Defendants"); Edward B. Zukoski and J. McCrystie Adams appeared on behalf of the National Trust for Historic Preservation, the Sierra Club, the Wilderness Society and the Southern Utah Wilderness Alliance (the "Intervenor-Defendants").

BACKGROUND

By Presidential Proclamation No. 6920, dated September 18, 1996 (the "Proclamation"), President William J. Clinton established the Grand Staircase-Escalante National Monument, encompassing more than 1.8 million acres of public lands located in Kane and Garfield Counties. See Proc. No. 6920, 61 Fed.Reg. 50223-50227, 110 Stat. 4561 (1996).² By its own terms, "[t]he establishment of this monument is subject to valid existing rights." Proc. No. 6920, 61 Fed.Reg. 50225, 110 Stat 4564.

The Proclamation required the formulation of a management plan for the Monument:

The Secretary of the Interior shall manage the monument through the Bureau of Land Management, pursuant to applicable legal authorities, to implement the purposes of this proclamation. The Secretary of the Interior shall prepare, within 3 years of this date, a management plan for this monument, and shall promulgate such regulations for its management as he deems appropriate. This proclamation does not reserve water as a matter of Federal law. I direct the Secretary to address in the management plan the extent to which water is necessary for the proper care and management of the objects of this monument and the extent to which further action may be necessary pursuant to Federal or State law to assure the availability of water.

Proc. No. 6920, 61 Fed.Reg. 50225, 110 Stat. 4564.

In November of 1998, the Bureau of Land Management (BLM) released a draft management plan and draft environmental impact statement for the Monument, followed by a four-month public comment period. The BLM then released a Proposed Management Plan, notice of which was published in the Federal Register. See 64 Fed.Reg. 41129-30 (July 29, 1999). Following another comment period, the Secretary of the Interior signed an Approved Management Plan and Record of Decision on November 15, 1999 (the "Management Plan"), which went into effect on February 29, 2000, the date that notice of the release of the Management Plan was published in the Federal Register. See 65 Fed.Reg. 10819 (February 29, 2000).³

The Management Plan undertakes to "protect the myriad historic and scientific resources in the Monument" by managing the Monument "according to two basic principles."

First and foremost, the Monument will remain protected in its primitive, frontier state. The BLM will safeguard the remote and undeveloped character of the Monument, which is essential to the protection of the scientific and historic resources. Second, the Monument will provide opportunities for the study of scientific and historic resources....

(Grand Staircase-Escalante National Monument Approved Management Plan/Record of Decision, "Introduction" at iv.) The Management Plan adopts a strategy that limits visitor development "to minor facilities such as interpretive kiosks and pullouts, located in small areas on the periphery of the Monument," and limits motorized access to Monument lands:

Motorized access will also be limited. The Plan designates a road network, which will be left largely in its presently unimproved condition. The Plan also eliminates cross-country motorized travel. In doing so, the BLM will ensure that the remote, undeveloped nature of this landscape remains for generations to come.

(Id.)

"The Plan also addresses valid rights which were recognized and protected in the Proclamation," (id. at v), including highway rights-of-way established pursuant to R.S. 2477;⁴ indeed, the text of the Management Plan was revised to "emphasize that nothing in the Plan extinguishes any valid existing rights-of-way in Grand Staircase-Escalante National Monument." (Id., "Record of Decision," at ix.) In particular, "Nothing in this Plan alters in any way any legal rights the Counties of Garfield and Kane or the State of Utah has to assert and protect R.S. 2477 rights, and to challenge in Federal court, or any other appropriate venue, any BLM road closures that they believe are inconsistent with their rights." (Id.)

Footnote 1 to Chapter 2 of the Plan elaborates on this point:

Some government entities may have a valid existing right to an access route under Revised Statutes (R.S.) 2477, Act of June 26, 1866, ch. 262, § 8, 14 Stat. 251 [codified as amended at 43 U.S.C. § 932 until repealed in 1976 by the Federal Land Policy and Management Act of 1976 (FLPMA), Public Law 94-579, Section 706(a), Stat. 2744, 2793 (1976)], which granted "[the right-of-way for the construction of highways over public lands, not reserved for public uses.]" As described in the United States Department of interior, Report to Congress on R.S. 2477 (June 1993), claims of rights-of-ways under R.S. 2477 are contentious and complicated issues, which have resulted in extensive litigation. See e.g., Sierra. Club v. Hodel, 848 F.2d 1068 (10th Cir.1988); Southern Utah Wilderness Alliance v. Bureau of Land Management, Consolidated Case No. 2:96-CV-836-S (D. Utah, filed Oct. 3, 1996, pending). It is unknown whether any R.S. 2477 claims would be asserted in the Monument which are inconsistent with the transportation decisions made in the Approved Plan or whether any of those R.S. 2477 claims would be determined to be valid. To the extent inconsistent claims are made, the validity of those claims would have to be determined. If claims are determined to be valid R.S. 2477 highways, the Approved Plan will respect those as valid existing rights. Otherwise, the transportation system described in the Approved Plan will be the one administered in the Monument. Nothing in this Plan extinguishes any valid existing right-of-way in the Grand Staircase Escalante National Monument. Nothing in this Plan alters in any way any legal rights the Counties of Garfield and Kane or the State of Utah has to assert and protect R.S. 2477 rights, and to challenge in Federal court or other appropriate venue, any BLM road closures that they believe are inconsistent with their rights.

(Id., ch. 2, at 46 n. 1.)

Neither the Management Plan nor the Record of Decision undertook to identify all of the Counties' unresolved claims of R.S. 2477 rights-of-way within the Monument boundaries, or to adjudicate the validity of any particular claim. Instead, the Plan designates a travel route system for the Monument that is delineated on Map 2 of the Plan, and provides that "[a]ny route not shown on Map 2 is considered closed upon approval of the Plan, subject to valid existing rights." (Id. ch. 2, at 46.) Map 2 reflects previously identified R.S. 2477 rights-of-way, including the Burr Trail Road, the Hole-in-the-Rock Road, and the Skutumpah Road, and indicates them to be "open" to travel, subject to restrictions on the use of off-highway vehicles. As quoted above, the Plan leaves the determination of the validity of the Counties' unresolved R.S. 2477 claims to a "Federal court or other appropriate venue."

On November 14, 2005, the Counties commenced the above-captioned action, seeking declaratory, injunctive and mandamus relief invalidating the Management Plan's travel route system as being arbitrary, capricious and contrary to law, and forbidding the BLM to implement any road travel restrictions within the Monument before determining whether such restrictions would impair any valid existing R.S. 2477 right-of-way claimed by the Counties or the Counties' right to maintain class "B" and "D" roads within their respective boundaries.⁵ The Counties' Complaint (dkt. no. 1), and their First Amended Complaint, filed February 27, 2006 (dkt. no. 9), also ask this court to invalidate any Management Plan provision that would restrict Kane County Water Conservancy District's diversion of water from within the Monument in the exercise of its existing or potential state law water rights.

On May 5, 2006, the Federal Defendants moved to dismiss the Counties' complaint, arguing that the Counties lack standing to sue because they fail to allege a concrete "injury-in-fact" resulting from the BLM's adoption of the Management Plan, and they fail to state a claim upon which relief may be granted because federal law does not require the BLM to identify and determine all existing R.S. 2477 rights-of-way when preparing a management plan for the Monument. They also assert that the Counties' claims are unripe and are barred by the...