Road war may resume as county begins paving Utah’s Burr Trail after getting green light from feds

(Photo courtesy of Ray Bloxham, Southern Utah Wilderness Society) Garfield County is chip-sealing the last unpaved stretch of the 67-mile Burr Trail on BLM land, pictured here on Tuesday. This photo is looking north from the freshly chip-sealed portion of the road north into Capitol Reef National Park, where the road remains unpaved on the far side of the cattle guard. Upgrades to historic road, passing through stunning canyon country to connect Boulder and Bullfrog, have long been fought over by environmentalists and county officials.

After nearly a decadelong truce, the battle over southern Utah’s Burr Trail may reignite after the Bureau of Land Management quietly approved Garfield County’s request to lay down asphalt on 7.5 miles of the road east of Capitol Reef National Park.

The agency posted its decision Monday, and by midday Tuesday, much of the chip-seal project already had been completed, according to activists with the Southern Utah Wilderness Alliance, who have long fought efforts to pave the historic 67-mile route from Boulder to Bullfrog.

“This smacks of the BLM colluding with the county to complete a project in a way that would avoid scrutiny,” SUWA legal director Steve Bloch said. “We are incredibly disappointed that the BLM would proceed under cover of darkness and let the county move forward on a project they knew the public would be concerned about.”

County and state officials, on the other hand, were pleased the agency acted swiftly to authorize the project to harden the Burr Trail’s last unpaved stretch across BLM land. The 9-mile leg crossing Capitol Reef remains unpaved, something Garfield County Commissioner Leland Pollock would like to see changed in the near future.

Garfield County promptly chip-sealed this 7.5-mile stretch of the Burr Trail within days of getting the BLM's approval.

“We are getting complaints on the condition of not only that road, but on Hole in the Rock and all these roads that we are not able to improve. These complaints come from nationwide,” Pollock said. “People come to this beautiful area and knock the front end of their car off or they get stuck. The SUWA folks need to understand public opinion is really in favor of having these roads in good condition.”

According to the BLM, the Burr Trail is one of the Grand Staircase-Escalante National Monument’s most popular destinations, visited by a record 79,000 people in 2016. The portion now being paved is outside the monument’s original boundaries but remains a popular entry point.

Chip seal is a low-cost paving method in which asphalt and aggregate are rolled flat on a gravel road base. According to Bloch, the county had about 30 workers paving the route Tuesday. They were staging the operation from a state trust lands section abutting the road.

Few routes in Utah have provoked as much legal fighting as the Burr Trail, which cuts through some of the state’s most stunning canyon country, stretching out of Boulder east through the Circle Cliffs, Capitol Reef’s Waterpocket Fold and Grand Staircase.

The county already has paved the first 28 miles out of Boulder to the Capitol Reef boundary and much of the final 20 miles at the southeastern end, from Starr Spring Road to Bullfrog.

Pollock contends it is unwise to leave the central portion of the road unpaved, because the paved entry portions invite tourists to drive into remote backcountry in vehicles that might not be able to handle the washboarded gravel sections, especially the switchbacks through the park, which become tricky in wet weather.

Environmentalists see a troubling precedent in the expedited way the Interior Department handled the county’s latest proposal, approved Friday with a formal finding that it would pose no significant impact. Few knew an analysis under the National Environmental Policy Act was under way until April 1, when the BLM posted its draft environmental assessment.

The final assessment was released less than two weeks after the public comment period closed April 15 and made no reference to comments submitted in response to the draft. Nor does it fully resolve the concerns raised a decade ago by then-Capitol Reef National Park Superintendent Albert Hendricks, when the project was last on the table.

He was particularly concerned how construction and increased traffic could disturb the Mount Pennell Wilderness Study Area, which the road skirts for several miles, and lands inside the park, according to letters he wrote to the BLM in 2009 and 2010.

SUWA and its allies are disturbed that the environmental assessment essentially concedes Garfield holds a right of way to the entire length of the Burr Trail, although the county’s claim to the part being paved has never been adjudicated.

While these groups argue hardening the road would change the wilderness character of the surroundings for the worse and encourage faster driving, federal land managers concluded paving also offers benefits.

“The unpaved route currently proves to be a maintenance challenge due to various factors that decrease the safety and usability of the route,” BLM district manager Ahmed Mohsen wrote in his findings. “Chip-sealing the route will provide a stable road surface free of washouts, ruts, loose road base, as well as eliminating dust, which will provide better visibility and air quality.”

In a letter to Pollock, Mohsen said the county’s proposed upgrades were “reasonable and necessary" and, thus, within the scope of the county’s right of way. To support the BLM’s conclusion Garfield holds a right of way, Mohsen cited a 1990 10th U.S. Circuit Court of Appeals ruling on an earlier paving project.

The BLM’s state office declined to make anyone available for an interview, but it did offer an emailed comment affirming the county holds a valid claim to the road under the pioneer-era law known as RS2477.

According to SUWA, however, the 1990 court decision applies only to the western 28 miles of the road, which were the subject of previous lawsuits over Garfield’s ultimately successful efforts to pave them. The appeals court held that the county did indeed hold a right of way on that part of the road, indicating that it had been open to public use for 10 continuous years before 1976, the year RS2477 was repealed.

The eastern part is among hundreds of routes the county included in a comprehensive “quiet title” suit, seeking to wrest ownership from the federal government.

That suit has yet to be resolved. Now another one might get filed.

“We will decide shortly what next steps to take. I can’t think of anything that would prevent a court from ordering the chip seal to be ripped up,” Bloch said. “It is unprecedented to see the BLM go to these lengths to try to shield a county from judicial review so they could finish a project.”