ORV dust-up spurs a question: Can feds enforce an off-road vehicle ban in Utah’s national parks?

(Erin Alberty | Tribune file photo) The Burr Trail winds up the Waterpocket Fold in Capitol Reef National Park.

So, now that plans to allow off-road vehicles onto roads in Utah’s national parks have hit a dead end, would drivers of “street legal” utility terrain vehicles be ticketed if they tried to ride, say, Canyonlands’ White Rim or Capitol Reef’s Burr Trail?

According to federal prosecutors, the answer is an emphatic yes, but questions remain in the wake of the now-rescinded directive from the National Park Service that had ordered Utah parks to open their roads to ORVs.

Parks have long had regulations against these nimble vehicles plying their roads, but an internal memo raised doubts last month about whether such prohibitions are enforceable, given an 11-year-old Utah law allowing properly equipped utility terrain vehicles to travel public roads.

Because the Utah parks’ ORV closures were implemented under the discretionary authority of park superintendents, rather than through a public rule-making process, the vehicle ban lacks sufficient “legal foundation,” reasoned the Sept. 24 memo from the park service’s acting regional director, Palmer “Chip” Jenkins. Citing advice from the Interior Department’s Office of the Solicitor, he instructed park superintendents to rid their rulebooks of the ORV prohibitions by Nov. 1, greenlighting street-legal UTVs to go anywhere a conventional motor vehicle can legally travel.

Across the country, meanwhile, nearly all national parks and other units run by the park service are closed to ORVs.

After a sustained outcry from conservationists and Grand County elected leaders and businesses, however, the agency shifted gears and withdrew the Utah order last week.

Even so, key issues remain. After all, the Sept. 24 memo had concluded that, without undergoing a public rule-making process, the ORV closures could lack sufficient legal footing to be enforceable.

“This puts law enforcement rangers in a precarious position, as any citation they write for an ORV closure on a park road could be easily challenged,” the memo warned. “It is also challenging to differentiate between an ‘OHV/ORV’ and another vehicle [allowed on park roads] such as a modified Jeep, modified pickup truck or motorcycle that is equally capable of driving off road.”

To firm up that argument, the document cited an unnamed assistant U.S. attorney's "stated refusal to prosecute cases brought under these park regulations."

That prosecutor was Jared Bennett, the first assistant U.S. attorney for Utah and a litigator who has gone after motorized scofflaws in the past. He won a conviction against then-San Juan County Commissioner Phil Lyman for his role in organizing an ORV protest ride through southeastern Utah’s Recapture Canyon outside Blanding.

Now a state lawmaker, Lyman may have helped initiate the park service’s drive to open Utah parks to ORVs. In a Sept. 2 letter to Interior Secretary David Bernhardt, the Utah Republican and 13 other legislators demanded the bans be lifted. They argued those rules illegally “discriminate" against increasingly popular UTVs.

Reached last week, Bennett acknowledged he was the unnamed prosecutor who raised questions about whether he could charge someone who had been caught driving an ORV on a park road in Utah. Absent a rule with solid legal footing, he said, it’s hard to justify punishing someone for doing something that is legal to do everywhere in the state except in a national park.

“We can’t prosecute until we have something with the force of law to go on,” he said last week.

That “something” came down Oct. 24 in the form of unequivocal direction from the Interior Department that the Utah parks’ ORV bans were properly implemented.

“We needed more information from the Interior Department to explain what the basis of all this was, and they have done that,” Bennett said this week. “Based on that, if the evidence is there, we would certainly go forward on prosecutions.”

So forget what the Interior and Justice departments were saying last week. This week, drivers can expect legal trouble if park rangers catch them on an ORV in Utah’s national parks — even if they’re just cruising down a paved road behind a car, a camper or a motorcycle.

In the Oct. 24 memo, Louis Rowe, the agency’s acting associate director for visitor and resource protection, informed the Intermountain regional office that the Utah ORV closures are “appropriate.”

The document directs park officials to "establish an enforcement posture that strives first and foremost to meet our mandate of protection of our nation’s resources through education and outreach,” Rowe wrote. “In addition, devise a strategy that ensures that our neighbors, stakeholders, and visitors are engaged and informed; one that continues to build trust; and one that further fosters our relationships as a good neighbor.”

He said a “proper enforcement posture” will be needed, given that the public may be confused over what is allowed inside the parks versus outside them.

If there is any confusion along those lines, conservationists argue, the park service has only itself to blame. Advocates maintain that the Utah parks’ ORV closures carried the weight of law all along and that the agency’s flip-flopping has merely muddied the issue.

The move to let ORVs onto park roads appears to have not been vetted well, said John Freemuth, a professor of public policy and a public lands expert at Boise State University.

“They could have clarified what they were doing before they popped out that [Sept. 24] memo,” said Freemuth, who once worked as a ranger for Glen Canyon National Recreation Area. “The backstory here is [the park service has] an acting director and acting regional directors. There’s no leadership that is permanent and that creates a lot of governance and morale problems.

“It looked like another example of centralized policymaking,” he added. “Superintendents usually have a lot of autonomy to make policy and not be told what to do unless it’s a generic policy that affects all parks.”

Arches and Canyonlands national parks banned ORVs, for instance, under a 2008 determination that these vehicles are designed to travel off road. The superintendent over both southeastern Utah parks feared some UTVs would stray from the roads, particularly in remote areas like the Needles District or Klondike Bluffs, and that policing their activity would eat up too much staff time.

“Ninety-nine percent of those people [driving ORVs] can be great," Freemuth said, “but the 1% who goes off the road can have serious resource impacts.”

For his part, Bennett cautioned that those caught traveling off road should expect to feel the full teeth of the law. This conduct is highly illegal — whether it’s a UTV, motorcycle or truck because of the severe and lasting damage motorized wheels can inflict on the fragile desert landscapes Utah’s parks were set aside to protect.

“We will prosecute that — day after day, seven days a week and on Sunday if necessary,” Bennett said. In addition to arrest and jail time, violators could be subject to civil penalties worth up to three times the damage they cause and to forfeiture of the offending vehicles.

And if anyone doubts Bennett’s resolve, ask Phil Lyman.