Below you will find Mark Habbeshaw's "Illegal Closing of the Paria River Road" report. Plus several other related documents. The ATV Club would like to thank Mark and Judy Habbeshaw, and Dirk Clayson for their work and efforts regarding the Paria River Histocial Road.
Utah/Arizona ATV Club
This is an interesting 2018 position statement outline report presented as a reference to the "Illegal closing of the Paria River road". This outline report was written and created by Mark Habbeshaw of Kanab, Utah. First you will find Mr. Habbeshaw's cover letter dated: April 2, 2018 with a link to the entire document below it.
Following that link are two more links to a Kane County, Utah Resolution, dated on: May 8, 2017. Lastly, but just as important, a link to a copy of a letter written to the Grand Staircase/Escalante National Monument by Kane County, Utah Commissioner Dirk Clayston, dated: March 19, 2018.
Finally, the last document is the ATV Club's response to the Scoping of the resizing of the Grand Staircase/Escalante National Monument.
April 2, 2018
Ryan Zinke, Secretary Department of the Interior
Brian Steed, National BLM Director
Edward Roberson, BLM Utah State Director
Harry Barber, GSENM Manager
Whit Bunting, BLM Kanab Field Office Manager
Re: Cover letter for attached report: Wrongful Closure of the Paria River Road in Kane County, Utah by Federal Employees in 2009 – Justification to Re-Open the Paria River Road – Resolution of Western Revised Statute 2477 Conflict, Including Costly Quiet Title Litigation.
The people of Kane County Utah appreciate the recent action by the President Trump/Secretary Zinke administration to amend the unjust creation of the Grand Staircase-Escalante National Monument by President Clinton in 1996. However, there are issues remaining that need to be addressed in correcting additional abuses that occurred during both the Clinton and Obama administrations.
The attached report, “Wrongful Closure of the Paria River Road" in Kane County, Utah by Federal Employees in 2009 – Justification to Re-Open the Paria River Road – Resolution of Western Revised Statute 2477 Conflict, Including Costly Quiet Title Litigation” (Wrongful Closure Report), is respectfully submitted for your consideration along with a request that the President Trump/Secretary Zinke administration take action rescinding BLM’s wrongful closure of Kane County’s historical Paria River Road in 2009 (during the administration of President Obama and Secretary of the Interior Ken Salazar). The attached Wrongful Closure Report justifies the revocation of BLM’s actions in closing the Paria River Road in great detail. However, current BLM management has indicated that the Paria River Road will likely remain closed unless favorably adjudicated in quiet title litigation and the fact that the road is within a WSA supposedly complicates the issue. The Wrongful Closure Report addresses these points in explaining that the historic road established as a valid existing right (VER) long before the existence of the Paria-Hackberry WSA and that DOI and BLM administrators, directors and employees have a legal duty to both recognize and protect valid existing rights in making administrative and planning decisions. Federal court adjudication is not required and should not be demanded for recognition of valid existing rights by federal land managers.
It is understood that certain DOJ attorneys adamantly oppose the current administration revoking the previous administration’s unjust decision to physically close, barricade and threaten prosecution of anyone attempting to travel the historic Paria River Road. These attorneys are likely the same attorneys (left over from the Obama administration) that have persistently tried to frustrate and defeat, at any cost, including misrepresentations to the court, the State of Utah and Kane County’s effort to resolve the failure of federal land managers to recognize rights-of-way legally established under Revised Statute 2477 (R.S. 2477).
Based on past experience it is believed that current federal attorneys assigned to the R.S. 2477 issue will never agree to a reasonable resolution to the R.S. 2477 issue and must be removed from that assignment for a fair and equitable resolution to occur. It is strongly recommended that federal attorneys not previously assigned to R.S. 2477 matters provide an independent, unbiased opinion in this instance. Utah and Kane County quiet title attorneys can provide details of federal attorney actions obstructing R.S. 2477 resolution beyond normal advocacy, including relationships with environmental organizations to collaboratively defeat any administrative or judicial recognition of R.S. 2477 rights.
Numerous county roads operate as public highways in Wilderness Study Areas (WSA) within both the GSENM and the BLM Kanab Field office. The GSENM and BLM FO staff or Kane County could easily supply the total number of roads within WSAs in Kane County. The North Swag Road, previously adjudicated as a Kane County R.S. 2477 right-of-way, is an open public highway within the same Paria-Hackberry WSA as the Paria River Road. It is an unmaintained, two-track road, as is the Paria River Road.
The WSA argument regarding the Paria River Road is a purposeful diversion to avoid the real issue, which is simply - does current documentation support the establishment of a valid existing right prior to the designation of the lands as a WSA. Kane County and the State of Utah have clearly submitted to federal land managers, federal attorneys and to the court that it does. If that is the case, the existence of a WSA is immaterial to the opening of the Paria River Road as a valid existing right pre-dating the WSA. Pre-existing rights are grandfathered in WSAs as a matter of law and regulation.
The long-standing, controversy over R.S.2477 rights-of-way (created by previous Secretary of the Interior Bruce Babbitt) deserves a fresh lawfully-based approach under the President Trump/Secretary Zinke administration. The pathway to resolution of the roads issue should begin with the provision in President Trump’s Proclamation that Secretary Zinke may allow motorized vehicle use on roads and trails existing within the GSENM prior to its designation. That provision should rightfully be applied to Kane County’s Paria River Road.
It is also requested that all vestiges of previous Secretary of Interior Bruce Babbitt’s unjust 1997 policy eviscerating congressionally granted and protected R.S. 2477 rights-of-way across the West be fully revoked and replaced by a lawfully-based policy. This issue is addressed in the attached Wrongful Closure Report.
It is further requested that the administration of President Trump and Secretary Zinke change the current methods in dealing with Utah and Kane County’s long-standing, costly, burdensome and continually delayed federal quiet title litigation involving transportation system roads throughout the state. The attached Wrongful Closure Report proposes a concept of reasonable settlement based on utilizing “administrative determinations” or Recordable Disclaimers of Interest submitted to the court where an administrative review of current documentation supports the existence of congressionally granted valid existing rights.
The wrongful actions developed under the Clinton and Obama administrations will not likely be corrected without a house-cleaning of bureaucratic advocates entrenched in DOI, BLM and DOJ (R.S. 2477 attorneys). The administrators, directors, employees and attorneys following their own agenda will undermine all administrative efforts to change their existing institutional culture as documented in the attached Wrongful Closure Report.
Former Kane County Commissioner, 2003-2011
The Wrongful Closure of the Paria River Road in Kane County, Utah by the Grand Staircase Escalante National Monument
The GSENM Field Office denies this sign was there.
Below you will find the ATV Club letter to the BLM with 13 position points adopted by the Utah/Arizona ATV Club relating to the development of a Resource Management Plan for the new Grand Staircase/Escalante National Monument. Please note an addendum added to this document at the March 28, 2018 scoping meeting in Kanab.
Utah/Arizona ATV Club response to the BLM Scoping of the development of a Resource Management Plan for the resized Grand Staircase/Escalante National Monument.
Utah/Arizona ATV Club
Original comment; January 22, 2018 DRAFT
Revised and updated February 12 and 14, 2018
Matt Betenson, Associate Monument Manager
Grand Staircase-Escalante National Monument
669 South Highway 89A
Kanab, UT 84741
Dear Mr. Betenson:
In reference to the BLM now accepting comments in preparation for a new management plan for modified Monument units - Grand Staircase, Kaiparowits and Escalante Canyons and the lands that were excised from the former Grand Staircase-Escalante National Monument. Please accept this addendum to our January 22, 2018 letter.
The Utah/Arizona ATV Club maintains that the Trump proclamation is a lawful revocation of the existing monument and will be upheld in a court of law. The President has the authority to create a national monument under the Antiquities Act; and may revoke or reduce a national monument.
The BLM's rush to act is prudent and should prioritize protecting the Presidential and Interior Department designation of the reorganization of Grand Staircase-Escalante as proposed. It is clear that the natural and cultural resources that were designated for protection in 1996 are included and remain protected in the three newly designated Monument units.
Regarding the opening of public comment submitted: as Input Regarding Preliminary Issues for Management Planning for the modified Monument units and other managed Federal Lands as created by President Trump’s recent Proclamations. Please accept the following points of reference as the position of the Utah/Arizona ATV Club and membership.
1. The preparation of new Resource Management Plans (RMP) should be carried out as soon as possible and include comments from the local stake holders, State, County, and City governmental agencies.
2. The RMP draft should be submitted and open for comment in a timely fashion.
3. Mapping of the actual designation of the newly modified units of the Monument - Grand Staircase, Kaiparowits and Escalante Canyons and the lands that were excised from the former Grand Staircase-Escalante National Monument should be made available to the local stakeholders in a timely fashion.
4. Public hearings should be scheduled in the gateway communities of the Grand Staircase-Escalante National Monument. County transportation systems and individual transportation system roads should be fully respected and incorporated into BLM monument planning as county public highways.
5. County ordinances, rules and regulations should solely control the use, vehicle type, speed limit and all other controls for the public’s use of county transportation system roads.
6. No county transportation system roads should be closed by monument planning or by administrative decision.
7. No county transportation system roads should be restricted as to the public’s use or access by monument planning or by administrative action. This includes but is not limited to “administrative use” roads and “No Unlicensed” and “No ATV” designations placed on county transportation system roads. County ordinances should control the types of vehicles, age of operators, etc. on county transportation system roads.
8. Street legal vehicle status, including OHVs, should be formally accepted in final monument plans. This includes Utah and states having a reciprocal agreement regarding street legal status with Utah.
9. County transportation system numbering system and county road regulations should be formally adopted into the final monument plans.
10. BLM should coordinate with the county to extend the county transportation road numbering system to include non-county roads open to public travel within the monuments. This would avoid conflicting dual numbering systems and is important for public safety so that the public can find their way within monument boundaries.
11. Law enforcement within the monuments should be handled by local law enforcement as covered in the Federal Land Policy and Management Act (FLPMA). Contracts with local Sherriff’s Offices should be developed for this purpose.
12. The authorization of new roads and trails, both motorized and mechanized should be permitted if environmental assessments determine that such road and trail development is consistent with the monument’s proclamation. Such travel might include wash or canyon travel below the high-water mark. It might include travel over sand dunes or boulder fields with little to no environmental impact.
13. The Paria River/Sheep Creek road and the Last Chance/Paradise Canyon road (Kane County transportation system roads) should be open to public travel under county travel regulations. The Paria Canyon road was improperly barricaded and physically closed by previous BLM monument management and the public was threatened with arrest if anyone operated a motor or mechanized vehicle on the county road.
GSENM SCOPING COMMENTS – Utah/Arizona ATV Club; ADDITIONAL COMMENTS as of 2/14/18
A review of the 1999 GSENM Plan raises additional scoping issues to be considered in developing a new plan to manage the Grand Staircase, Kaiparowits and Escalante Canyons units within the monument.
The new monument plan should move away from National Park Service type planning, as was incorporated in the 1999 GSENM Plan. The GSENM was placed with the BLM (a multiple-use agency, rather than with the NPS (a protection agency). For example, the 1999 GSENM Plan refers to “the protection of the Grand-Staircase National Monument” (pg iv) as though it was a National Park and that the entire interior boundary must be greatly restricted from public use.
The new planning should begin with the specific identification of “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest”, as stipulated in the American Antiquities Act of 1906, 16 USC 431-433. "The primary purpose of a new plan should be development of management prescriptions necessary for the proper care and management of identified objects and to prevent the appropriation, excavation, injury or destruction of any historic or prehistoric ruin, monument, or any object of antiquity as identified by presidential proclamation". Beyond the authorities of the Antiquities Act and presidential proclamation the new monument plan should be multiple-use based, as per the mission of the BLM.
The 1999 GSENM Plan’s management zone system, consisting of the Front Country Zone, the Passage Zone, the Outback Zone and the Primitive Zone appear unrelated to site specific object protection but appear to manage people in a NPS type management style. The zone system should be abandoned. The management of visitors within the GSENM should be directly related to the management of identified objects. In many cases the objects may offer important interpretive value rather than warrant management restrictions.
The 1999 GSENM Plan’s restrictions regarding filming should be analyzed related directly to object protection. Filming has been economically important to Kane County and has the potential to be economically important in the future and should not be unnecessarily restricted within the GSENM as it has been under the 1999 plan.
The 1999 plan’s camping (CAMP-1 through 7) is unnecessarily complicated and, again, should be managed as necessary to protect and manage objects but not to unnecessarily manage visitors. Specifically, off road parking (pg. 35, 1999 plan) should not be restricted as it is a safety issue impacting on-road travel.
Group sizes (pg.39, 1999 plan) as related to zones should not be as restrictive. The monument should accommodate larger group sizes. Group size should not apply to visitors travelling county transportation system roads but only apply to off-road activities.
Existing levels of livestock grazing should be supported by the new plan. Allotment buyouts and the permanent retirement of allotments should not be allowed in new planning.
Owners of inholdings should not be pressured to sell to the federal government.
Road restoration should not apply to any Kane County transportation system roads.
Visual Resource Management is not related to the purposes of the Antiquities Act nor the presidential proclamations and should not be restrictive beyond that management applied on other multiple-use BLM managed lands. VRM should not conflict with full use of valid existing rights (VER).
WSAs should not affect Kane County transportation system roads. WSAs are roadless areas and do not legally create an adverse effect regarding VERs.
The Paria River corridor occupied by Kane County Transportation System Road # K6200, Paria River Road should be removed from Wild and Scenic suitability. (pg.64, 100, 108, 1999 plan).
If a GSENM Advisory Committee is formed, one or more OHV representatives should be appointed to the committee.
The GSENM Plan should be truly consistent with Kane and Garfield Counties General Plans and not just contain a statement pledging consistency, without substance.
The provision in the 1999 plan (pg. 87), “Only one access route to private land parcels will be authorized....” should be removed from consideration in the new plan. In one example, a short smooth road accessing an inholding was not authorized. The land owner’s only access, according to the GSENM Plan, was an approximately 10-mile 4X4 road with soft sand and deep washes to cross to get to his private land. This was done with the obvious intent to force the land owner to apply for a FLPMA Title 5 permit or to apply pressure and restrictions forcing the sale of the inholding to the federal government.
The entire Transportation and Access section (pg. 46 – 49, 1999 plan) needs to be rewritten to recognize Kane and Garfield Transportation Systems within the GSENM boundaries. Map 2, in declaring only the routes shown on Map 2 are open, with all other routes closed needs to be rescinded. Footnote 1 (pg. 46, 1999 plan) and the confusing language it contains needs to be deleted. References to street legal and non-street legal vehicles needs to be deleted and deferred to the provisions and ordinances of Kane and Garfield Counties in managing their transportation system within the boundaries of the GSENM.
Samuel R. Smith, President
Utah/Arizona ATV Club
6250 Antelope Trail
Kanab, UT 84741
Telephone: 435 644-8236
cc: Utah/ATV Club Membership
Kane County, Utah Commission
Addendum added March 28, 2018 at the BLM Scoping meeting
Utah/Arizona ATV Club
Addendum to original Scoping statement.To Matt Betenson, Associate Monument Manager
Grand Staircase-Escalante NM
Kanab, Utah 84741
Dear Mr. Betenson,
It has been brought to my attention one other grievance which we wish to bring forth to you. It is regarding the Everett Monument south of the Skutumpah Road. It is our opinion that this is one other issue to be considered while developing the Resource Management Plan for the GSENM.
As it has been said; that in our opinion, the closing of the upper Paria River road was fundamentally illegal, and among many other issues, detrimental to those who seek to see historical pioneer rock art. I have photos of this pioneer rock art.
The Everett Memorial is another particular historical site which has been largely ignored over the years. Our particular issue of concern is access to the Everett Monument located along the Everett wash approximately 2.5 tenths of a mile south of the Skutumpah Road. The access is down a wash which would eradicate vehicle tracks after rains would flood the wash. The memorial is of significance because of its rich Utah History. The Monument states:
IN MEMORY OF ELIJAH EVERETT JR., killed by Indians in 1866; buried by his comrades of the Capt. James Andrus Co., U.S. Cavalry. There is a small oval sandstone set in concrete, etched "E. E. 1866".
It is our belief that an appropriate approach be created to access this memorial creating a vehicle turnaround within the Everett Wash so to enable, those disabled or impaired, would be able to visit this historical landmark.
Attached is documentation regarding this historic site which is unknown by many of the visitors to the GSENM.
SR Smith, President
Utah/Arizona ATV Club