Letter from United States Department of the Interior, Bureau of Land Management, Utah State Office to Blanding City Council dated February 26, 2015
Dear Members of the Blanding City Council:
On January 16, 2015, I received a copy of the Blanding City Resolution 11-25-2014-1, passed November 25, 2014, entitled “A Resolution Denouncing the Bureau of Land Management’s Arbitrary Closure of Recapture Canyon, the Handling of the Recapture Canyon Protest, and Calling for the Immediate Re-Opening of the Recapture Canyon Route.” I am writing to you in the hope that you will reconsider your position regarding Recapture Canyon.
The Resolution contains some factual inaccuracies and misapprehends Federal law. Recapture Canyon was properly closed to vehicular use as authorized by 43 C.F.R. § 8341.2 as a result of documented adverse impacts to cultural resources caused by activities associated with OHV use. Notice of the closure order was published in the Federal Register on October 5, 2007. The Instruction Memorandum referred to in the Resolution was issued two years after the closure order and is a general policy directive that is inapplicable to the situation in Recapture Canyon. The closure order has not been challenged administratively or judicially and remains in effect. As stated in the Federal Register notice, the closure order will remain in effect until adverse impacts that led to the closure are ameliorated and measures are in place to prevent recurrence. Because those actions have not taken place, BLM will not rescind the closure order. Please note that the closure order only applies to vehicular use, and does not apply to federal, state, or local law enforcement, organized rescue, or fire fighting activities. It also does not affect public use by foot or horseback.
BLM’s authority under 43 C.F.R. § 8342.1 to close public land to vehicular use that is causing considerable adverse effects to cultural or other resources is not limited by the mere assertion that the closure area includes a route that is claimed to be an R.S. 2477 right-of-way or is designated as a “class D” road. You should also be aware that neither San Juan County nor the State of Utah has alleged an R.S. 2477 right-of-way claim anywhere within the closure area in their currently pending Quiet Title Action against the United States in federal district court. Nor has the County or the State objected to the closure order on the basis that the subject area includes a “class D” road.
BLM’s administration of Recapture Canyon, including the closure, is consistent with the Monticello Resource Management Plan (RMP), as well as the Federal Land Policy and Management Act (FLPMA) and its implementing regulations. BLM fully complied with the requirement in section 202(c)(9) of FLPMA and BLM’s handbook to coordinate with local government planning in developing the RMP. In any event, BLM is unaware of any local government plan that is inconsistent with either the RMP or BLM’s current management of Recapture Canyon.
The only record that BLM has of any right-of-way being granted or recognized for a route in the closure area is in regard to a right-of-way BLM issued under Title V of FLPMA to San Juan County Water Conservancy District (SJCWD). That right-of-way allows SJCWD personnel to use a road in the northern part of the closure to maintain a pipeline built around 1986. However, this right-of-way does not authorized SJCWD to use the road for purposes not associated with maintenance of the pipeline. BLM exercises full administrative control over all routes within the closure area.
With respect to the illegal OHV ride that took place within the closure area on May 10, 2014, BLM has documented the cultural and other resource damage that was caused by that event. BLM cannot comment on the criminal prosecution currently proceeding as a result of the illegal ride, and the United States Attorney’s Office has sole control over the prosecution. Regardless of that prosecution, in light of the resource damage that was caused by the participants in that event, BLM as the responsible land management agency has a duty to consider whether to pursue civil or administrative action to remediate the damage that occurred. BLM has not made any final decisions in that regard.
BLM is aware of the argument that the State of Utah is entitled under the State’s Enabling Act to the public lands within the state. However, until that argument is resolved judicially or by Congress in favor of the State, the lands within the closure area are public lands appropriately administered by BLM under FLPMA and its implementing regulations.
As you know, BLM is currently engaged in a National Environmental Policy Act (NEPA) analysis to consider an application for a right-of-way within Recapture Canyon submitted by San Juan County, which will take into account the canyon’s cultural resources and impact of vehicular use on those resources. Through this process, BLM will identify options that may allow the closure order to be terminated. Regrettably, due to factors largely out of BLM’s control, most recently the illegal OHV event that took place on May 10, 2014, this process was delayed. The process has resumed, and BLM is diligently proceeding with the NEPA analysis and hopes to release an EA for public comment in the very near future.
We look forward to the City participating in this process and continuing the dialogue with BLM. Although we acknowledge and respect our differences of opinion, we believe that the City and BLM have the same appreciation and desire to protect the remarkable resources within Recapture Canyon for everyone who uses and values our public lands. If any member of the City Council wishes to discuss this matter further, please do not hesitate to call me.