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Supreme Court Considers Right to Sue Government Over Land Management

Supreme Court Considers Right to Sue Government Over Land Management

Posted - Mar. 27, 2004 at 3:23 p.m.



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KANAB, Utah (AP) -- At the Coral Pink Sand Dunes, enthusiasts driving dune buggies can roar into a wilderness study area from an adjacent state park without even knowing it. That has given rise to a U.S. Supreme Court case underscoring the battle over millions of acres of potential wilderness preserves.

The state all-terrain vehicle park is bordered on three sides by the wilderness study area, and conservationists say the Bureau of Land Management isn't doing enough to protect the fragile dunes and their ancient stands of ponderosa pine.

The nation's highest court hears arguments Monday on whether citizen groups can sue the BLM to force it to better protect public lands awaiting a decision on wilderness designation. The clash of competing interests is most pronounced here, about 250 miles south of Salt Lake City, where the border defining Coral Pink's most delicate dunes from ATV traffic is little more than an imaginary line in the sand.

"You need a map to figure it all out," said Al Hall, a retired construction worker who runs a $2,500 dune buggy built with parts from two cars. While most off-roaders respect the boundaries, he said, "there's no trail markings per se."

The BLM has recommended against wilderness designation for this forested high desert land, and it has turned down suggestions from wilderness advocates that the 14,830-acre Moquith Mountain wilderness study area be fenced to keep out illicit ATV traffic, saying it would not be practical or economical. ATVs are allowed to travel inside the protected zone on a loop road and two side trails.

A final decision on wilderness protection is up to Congress, but land managers are supposed to preserve study areas in pristine condition in case Congress decides they should be formally protected. Once roads are cut in wilderness study areas, preservationists say, the backcountry no longer meets the standard of wilderness.

So the Southern Utah Wilderness Association sued BLM, seeking to force land managers to be more aggressive in protecting the dunes and other Utah wilderness study areas.

A federal judge threw out SUWA's case, but the group prevailed at the 10th U.S. Circuit Court of Appeals in Denver, which ruled BLM could be sued for allowing damage to the lands.

The Justice Department is appealing that decision to the Supreme Court, arguing that citizens groups would gum up government if they are allowed to challenge every land management decision.

Closing study areas is a discretionary act of the executive branch and courts cannot force the administration to exercise it, the Bush administration and off-roading groups argue in the case. If the Utah environmentalists succeed, they say, the normal administrative process would be replaced with unending lawsuits.

The problem here underscores the clash over millions of acres of potential wilderness in Utah's redrock canyons and high-desert lands, as well as in other states. A deadlocked Congress hasn't designated any wilderness in Utah for two decades, although President Clinton in 1996 ordered 1.9 million acres nearby protected as the Grand Staircase-Escalante National Monument, a designation just short of national park status.

The BLM insists it is taking steps to protect four wilderness study areas and other southern Utah lands at issue in the Supreme Court case by posting signs, building fences and helping run public education campaigns for all-terrain vehicle riders.

"It's really an incorrect characterization to say we have failed to act," said Sally Wisely, who oversees 23 million acres as Utah BLM director.

But she acknowledged her agency is stretched thin in Utah, where "the landscape is wide open" and only one ranger is on hand for every 1.5 million acres of BLM range land.

Rangers can check a wilderness study area one day but "the next day you go out, somebody on a motorcycle decided to do some wheelies," she said.

"We don't think there's impairment," Wisely said. "Obviously managing public lands is a huge challenge. That continually tests us, and I think we're doing a pretty good job. That's not to say there isn't some problems out there."

The problems are easily seen. In many places at Coral Pink, only widely spaced and stick-thin signs warn away off-roaders, and because of lack of money, the BLM has been without a full-time patrol ranger here for the past eight months.

The result might be expected. At 9:30 on a Friday morning earlier this month, a half-dozen ATVs and dirt bikes crested some prohibited dunes, carving them up. It takes only strong wind to cover the tracks, but conservationists say the knobby-tire vehicles rip up pine saplings and other vegetation, including the threatened milk-vetch plant.

Some of the ponderosa pines are 200 years old, says Ronald Lanner, a retired Utah State University forestry professor, who said that in a 40-year career he never came across another dune system where stands of mature ponderosa flourish as they do here.

It took centuries for the ponderosas to gain a foothold in the dune swales, with mature trees providing the shade for saplings to follow. Normally, it would be impossible for ponderosa seeds to germinate in dry sand, but the pines thrive on shade and subsurface water -- when ATVs aren't trampling the saplings, he said.

Other lands at issue in the Supreme Court case are the nearby Parunuweap wilderness study area, which borders Zion National Park and runs along Virgin River's east fork; Behind the Rocks, a redrock region that borders Moab, Utah; Indian Creek, near Canyonlands National Park; Sids Mountain in the heart of the San Rafael Swell, and Muddy Creek-Crack Canyon near Capitol Reef National Park.

"There's been such an explosion of ATV use in Utah that we're seeing offshoots from illegal trails and expansion of existing trails. We're seeing trees uprooted and soil eroded, and this is all taking place in a fragile desert ecosystem," said Heidi McIntosh, a staff attorney for the wilderness alliance.

ATV and dirt bike registrations have more than doubled to 124,961 since 1995, according to Utah Tax Commission figures, and that doesn't count off-highway vehicles drawn to Utah from neighboring states.

(Copyright 2004 by The Associated Press. All Rights Reserved.)

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