Details of a judge’s visit to disputed southern Utah routes are being kept quiet — except a plan to ride UTVs through land that’s closed to motorized vehicles

Scott Sommerdorf | The Salt Lake Tribune May 9, 2009 ATV'ers drive along the Paria River as counter-protestors at the "Picnic With a Purpose" watch in the foreground during a 2009 ride protesting BLM road closures in Grand Staircase-Escalante National Monument. The 22-mile route along the Paria, which is closed to motorized use, is among 15 "bellwether" routes in Kane County that a federal judge plans to tour this month as he prepares for a trial that could resolve Utah state officials' disputed claims to 14,000 routes across public lands.

A judge this fall will tour 15 disputed southern Utah routes crossing public land to help determine whether to cede these federal rights of way to Kane County, but details of that tour will remain under wraps in an apparent effort to ensure the safety of those on the site visits.

Two of the routes, which weave in and out of streams within the original boundaries of the Grand Staircase-Escalante National Monument, are closed to motorized use. So the legal entourage could wind up violating federal land-use rules regarding the Paria River, long a flashpoint in Utah’s battle with the Bureau of Land Management over control of remote back roads, argued lawyers for the Southern Utah Wilderness Alliance and other environmental groups in Salt Lake City’s federal court Thursday.

The groups contend U.S. District Judge Clark Waddoups’ site visits won’t serve a valid purpose, while Kane County and state lawyers insist they would help the judge understand the geographical context of the disputed routes.

With no explanation, Waddoups closed the hearing and ordered a Salt Lake Tribune reporter out of the courtroom while the site visits were discussed. In a docket entry posted at the end of the day, he cited unspecified safety concerns related to public disclosure of the tour’s itinerary.

In an interview, media lawyer Austin Riter said such concerns are a legitimate basis for closing a court hearing.

“The security of judges is a significant interest, and they have a lot of inherent power to enter orders that will protect their own security,” Riter said. “To divulge the details in the contentious litigation about when exactly he would be visiting the different sites arguably does impact his security.”

Kane and at least 20 other Utah counties are suing the federal government, seeking title to some 30,000 miles of routes under the repealed statute known as RS2477. Kane has taken the lead in this fight, and Utah taxpayers are covering much of the county’s legal costs.

The litigants selected the 15 routes as “bellwethers” to stand in for similarly situated routes during a 10-day bench trial to start Feb. 4.

Much is at stake because the outcome will guide settlement talks on the other 14,000 disputed routes outlined in nearly two dozen lawsuits, one for each of the Utah counties involved in the protracted legal battle.

To prevail on a RS2477 claim, the county must demonstrate the route was open to unfettered public use for 10 years before the frontier-era law’s repeal in 1976.

SUWA has intervened in the suit on the side of the federal government. Waddoups has granted the group limited privileges, allowing its attorneys to attend depositions and settlement talks, seek evidence that is not duplicative and argue objections — but not much else.

Environmentalists argue that the routes' current look and usage have no bearing in proving a RS2477 claim, so Waddoups’ tour is a waste of time, more likely to produce prejudicial information than probative evidence.

“The fact that any road exists, travels a certain path, or looks a certain way today says nothing about whether the road existed, traveled that path, or looked that way more than 40 years ago,” the groups wrote in a recent court filing.

The groups also allege that maintenance logs indicate Kane County been conducting unauthorized blading “in an apparent attempt to freshen the routes for the court’s observation, further undermining the reliability and so-called evidentiary value of the site visit.”

The routes are deemed class D roads, which by definition are unmaintained.

All but two of the 15 routes are within the original area of the Grand Staircase monument, which President Donald Trump reduced by nearly half last year.

Lawyers for Kane County derided SUWA’s assertions as “simply false.”

“The site visit will allow the court to acquire necessary and valuable context for the witness testimony and documentary evidence that it will receive during the bellwether trial,” wrote the county’s outside legal counsel, Shawn Welch. “In addition to discussing roads themselves and the pre-1976 use and condition of those roads, a significant amount of the bellwether trial evidence will refer to geographic locations, destinations and landmarks associated with the roads, including their relation to one another.”

It is one thing to hear testimony about sites like Dance Hall Rock, he wrote, but it is another thing to experience the places in person.

“In this sense," Welch continued, "the site visit will provide the court with valuable information that it cannot gain within the walls of the courtroom or by watching a video.”

Environmentalists object to the court’s tour of two routes closed in 2000 as part of the national monument’s management plan — the Paria River and Four Mile Canyon roads, both exceeding 20 miles. A phalanx of lawyers, county officials and fact witnesses are to join the judge on UTVs that are expected to travel in and out of streambeds.

While they shared SUWA’s concerns, federal attorneys declined to join the environmentalists’ motion, conceding site visits could help the court understand the lay of the land.

“However, site visits are not without costs, and it may be that this kind of site visit is not worth those costs if it does not yield substantial benefits,” Joseph Kim, a trial attorney with the Justice Department, wrote in a response filed Monday.

The feds do agree with SUWA that a motorized tour of closed routes is “unwise and unnecessary.”

“Any use of motorized vehicles in the area may confuse the public as to the closed nature," Kim wrote, “or may even contribute to future knowingly unauthorized uses.”

Kane County argued that the monument plan’s road closures don’t apply to vehicles on official business.

Waddoups agreed and rejected all of SUWA’s objections, clearing the way for the site visits.

“It’s contrary to the monument plan, and we believe the court does not have the authority to order it,” SUWA legal director Steve Bloch said. “We are not going to participate in that part of the site visit. It is regrettable that the court would order that parties be permitted to drive streambeds that have been closed for 20 years.”