The Bureau of Land Management is handing over a road to Kane County.
The agency's Tuesday announcement that it is turning ownership of a nine-mile strip known as the Bald Knoll Road over to the county marks the first time nationally that a road claim has been allowed under a BLM rule crafted to manage disputes after a landmark appeals-court ruling two years ago.
Kane County officials on Wednesday welcomed the option for the road, which will allow them to maintain it and make improvements. But the Southern Utah Wilderness Alliance (SUWA) argued the BLM's so-called non-binding determination cuts the public out of the decision-making and sets a precedent that could affect wilderness-quality lands.
The dispute centers on Revised Statute 2477, a Civil War era mining law that granted rights of way across public land until it was repealed by Congress in 1976. When that happened, existing rights of way were grandfathered in.
The definition of "existing" was at the heart of a 2005 10th Circuit appeals court ruling that said the BLM must defer to state law when assessing counties' road ownership claims. Under Utah law, existing roads are those that had 10 years of continuous use and county maintenance before 1976. Continuous-use claims now must be decided road-by-road in federal court. But a sentence in the 52-page ruling also said the BLM could make informal decisions on road claims, if only for internal land-use planning purposes. Former Interior Secretary Gale Norton put the rule into effect in 2006, just before she left her Cabinet post.
In a news release announcing a 30-day public comment period, the BLM Kanab field office said it made a "preliminary determination that the Bald Knoll Road is a valid R.S. 2477 right-of-way."
Kane County Commissioner Mark Habbeshaw, an ardent defender of his county's road ownership rights, said the commission nominated Bald Knoll Road for the non-binding determination a year ago, after an entrepreneur applied for a permit to haul decorative shale from alongside the road.
Habbeshaw said the one-lane graded dirt road is collapsing in places and needs to be made safe for 10- to 40-ton rock-hauling trucks as well as passenger vehicles. The shale miner would need to haul the rock to Skutumpah Road, which lies between Johnson Canyon and Cannonville, he said.
"We believe it's an ideal test case that this non-binding [designation] can work," Habbeshaw said, because the road doesn't go through a wilderness study area or the Grand Staircase-Escalante National Monument or any other special place.
"It's pretty much as average public land as you could get," he said.
The 30-day comment period will not be as strict as under a federal environmental impact study and would require protesters to bring evidence that the road shouldn't be improved, said BLM spokesman Matt Craddock.
SUWA spokeswoman Heidi McIntosh likened the move to the Trojan horse.
While she agreed improving Bald Knoll Road wouldn't be something SUWA would protest, it could ultimately set precedent for allowing the administrative decisions on roads in more environmentally sensitive areas.
"This BLM standard isn't as strict as the court, and it basically cuts the public out of the process," she said. "This is a shortcut . . . that allows the BLM to do this under reduced scrutiny and lower standards."