Fork in the road battle? Montezuma County is moving to take a tougher stance with federal agencies in disputes over access on public lands

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HAY CAMP MESA ROAD S

Montezuma County is placing signs on historic routes across public lands in an effort to establish its jurisdiction over them. Photo by David Long.

After years of pressure from motorized-use advocates and critics of the federal government, the Montezuma County commission is taking an increasingly tough stance in its dealings with the Forest Service and Bureau of Land Management.

Recently, the commissioners directed the County Planning and Zoning Commission to take a look at revising the county’s comprehensive plan so that it will, in the words of Commissioner Larry Don Suckla, have “more teeth” in regards to dealing with federal agencies.

On Aug. 28, P & Z Chair Dennis Atwater told other members of that board that they should review Chapters 12, 13, and 14 (on “Federal Lands in Montezuma County,” “Intergovernmental Relations,” and “Plan Implementation”) of the comprehensive plan with an eye toward revising them.

He said when the comp plan was adopted in 1997, “we had a working relationship that was good” with the federal agencies, but “now we don’t.”

The effort comes as the county has begun erecting signs on old routes across public lands that say “Historic Right of Way,” to indicate that the county has jurisdiction over the byway.

The county is also pursuing a legal claim to the Dolores-Norwood road – even though officials with the Forest Service, which currently manages the road, have offered to grant the county a permanent federal-lands highway easement that would give the county jurisdiction without going to court. The commissioners have said they want to pursue their claim under a federal statute known as RS 2477, both to establish a precedent and because the Forest Service could theoretically revoke the easement in the future.

RS 2477 dates from 1866 and states, “the right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted.” It provided for counties and states to have a right-of-way across federal land when a highway was created. It was repealed in 1976, but claims for roads prior to then remain valid. For years, the Montezuma County commission has heard the concerns of a coalition of motorized-use advocates and foes of the federal government who believe the land-management agencies are flagrantly overstepping their authority.

ROAD CLOSURES SIGNS AT HAY CAMP MESA

Road-closure signs such as this one on Haycamp Mesa near Dolores have caused concern among some advocates for motorized use. Photo by Gail Binkly

“We believe and submit that over the past five years we have provided documentation that reflects beyond question that the Board of County Commissioners has the authority, jurisdiction and duty to keep public roads open for public travel,” states a four-page document presented to the commissioners on June 23 by the Southwest Public Lands Coalition, a nonprofit advocacy group. “Further, that Federal Agencies, namely the BLM and Forest Service have closed and decommissioned many public roads in flagrant violation of Federal Acts, State & County Laws while even ignoring their own regulatory procedural manuals and direction. . . .” The coalition and Atwater, who is also its chair, have urged the commissioners to take a more aggressive stance in discussions with the Forest Service and BLM.

“We are asking you, ‘Please enforce and protect our rights which are clearly within your authority.’ Please do not allow the Federal Agencies to delay and obfuscate,” states the document presented to the board and signed by Atwater.

The paper states that the Forest Service has closed roads on Haycamp Mesa that were not set for closure in the current travel management plan and that the agency is “demolishing roads” on the Boggy Draw-Glade area in violation of the travel plan.

The document also states that the coalition wants to reopen historic RS 2477 roads on Haycamp Mesa including the “Stock Drive” and “Old Wagon Road.”

But public-lands officials say they are more than willing to work with the county, though they may disagree over certain aspects of the law. They say they are not closing roads willy-nilly, but only when closures make sense or are called for in travel-management plans.

There has not been any recent spate of closures, said Derek Padilla, the San Juan National Forest’s Dolores District ranger, in an interview with the Free Press.

For instance, the two roads cited by the Southwest Public Lands Coalition as “RS 2477 Historical Roads” on Haycamp Mesa have been closed for at least four years, Padilla said, well before he arrived at the Dolores District some 2 1/2 years ago.

He said he has never actually seen the routes.

Likewise, Tom Rice, recreation program manager with the Dolores District, and Chris Bouton, a specialist in trails, wildlife and dispersed recreation, said there hasn’t been much road-closure activity in the Haycamp area recently – not since 2011 or so. Bouton said most closures on Haycamp occurred from 2008 to 2010.

And regarding the Boggy-Glade area, the forest officials said, the closures have been of a few routes that were not part of the official system.

TIRE MARKS IN THE GLADE AREA

Tire tracks mark a meadow in the Glade area of the Dolores District of the San Juan National Forest. Agency officials say boulders sometimes have to be placed to discourage such off-road motorized use. Photo by Gail Binkly

“A couple of the closures are routes that are not part of the road system, which were closed recently with boulders, due to the impacts to some parks in that area – some nice parks or meadows that were starting to get damaged by people going into those off-season,” Bouton said.

As far as the historic roads on Haycamp Mesa, Rice said he wasn’t sure which specific ones the coalition was referring to. “There were lots of wagon roads and stock drives that had existed at some point,” Rice said. “A lot of trails were old stock drives; a lot were just generically referred to as the ‘Center Stock Drive’.”

Bouton said there were some old roads identified as potential RS 2477 routes, “but it’s really in the county’s ballpark to make an assertion in court because the Forest Service doesn’t make those claims.”

That’s one of the key areas of disagreement between the agencies and the access advocates, who argue that routes should be assumed to be historic RS 2477 byways unless proven otherwise.

The federal agencies say it’s up to other parties to make a legal claim that a route is historic under the old statute, and to prove it in court.

Padilla said the fact that Montezuma County is putting signs on certain old routes doesn’t affect how the Forest Service views or manages those roads. “Since I’ve been here, what I’ve asked of the county is to identify specifics,” he said. “If there are roads the county strongly feels are under county jurisdiction because of 2477, we’re willing to work with them on identifying whether those are truly county jurisdiction roads, but they still have not approached the Forest Service to say, ‘Here’s the two roads we feel are a question.’ They’ve been taking this general approach, saying the Forest Service has no right to close roads.

“They have not specifically requested a meeting to talk with us about these two roads. As soon as they do that, we’ll have that discussion. if we disagree, then they’re within their rights to pursue 2477 or another course of action that’s legally recognized.”

In contrast, he noted, Dolores County has adopted a more pragmatic attitude in its discussions with the federal agencies. The Dolores County commissioners said they believed their portion of the Dolores-Norwood road should be under county control and accepted the agency’s offer of a permanent easement, “and they now have control,” Padilla said.

Likewise, during discussions over road closures in the Boggy-Glade area, Dolores County officials approached the Forest Service “about specific routes their constituents felt were important for the traditional reasons – firewood, hunting – and we actually changed the [travel plan] decision based on the cooperation and coordination we had with Dolores County,” Padilla said.

“There were two or three different routes in the Boggy-Glade area they thought were important, and we said, ‘Those are roads we can add back in.’ We saw them as redundant but if people say they provide a loop [travel] all. . .,” he said.

Redundancy is one of the main reasons roads are closed, Padilla said.

“When you have two roads within a quarter- mile that go to the same place, what’s the need to have two roads that basically parallel one another and don’t provide a new recreational opportunity? It adds to our maintenance workload.”

A major concern, too, is providing undisturbed wildlife habitat. “Lots of research shows that effective wildlife habitat needs to be free of disturbance in a large area, at least 250 acres, for the habitat to be effective – for them to remain there and not run off because of disturbance.”

Motorized vehicles aren’t the only thing that can be a disturbance, Padilla said. “It could be mountain bikes. We want to provide some of those large areas as a refuge for large wildlife to be able to retreat from roads and not have to keep going and going.” Other routes may be closed to protect archaeological resources or watersheds. “If a road is along a creek and it’s providing the opportunity for a lot of sedimentation into the creek and there is not an opportunity to relocate the road and there’s another one nearby, we’ll close the one.”

Other closures involve old logging roads.

“Some timber sales were closed out recently that included road construction when the timber sale was active,” Padilla said. “The intent was always to close those roads, whether they had been in existence before or were newly created, because they were only supposed to be temporary in nature.”

Some such roads on Haycamp were being used by the public in the past because the previous travel-management map allowed cross-country motorized travel, a practice now ended by the Forest Service nationwide. “Because they were in an ‘F’ [open to motorized] area, a lot of old timber roads were being actively used, but now that we’ve gone through travel management and have not identified those roads as part of the public system, we have gone back in and closed those roads though they may have been used before,” Padilla said

He said if people had concerns about leaving particular roads open to motorized use, they should have had that discussion with the district when the travel-management plan was being developed for the Mancos- Cortez area some five years ago.

He added that people sometimes may be confused by “administrative use” roads that were gated but left intact, with an eye toward future timber harvests. “If a sale was done 20 years ago, the thought was, instead of reclosing those roads we’ll just put them in a storage status not available for the public, so when we come back 20 years from now to harvest more trees we don’t have to create a new road.”

Another area of disagreement between the federal-lands agencies and the constitutionalists is who ultimately determines when a public-lands road should be closed. Contrary to what may seem intuitively logical, the motorized-use advocates say it’s counties that ought to decide which, if any, roads are closed, even on national forests and BLM land. They cite state statutes they believe give states and counties authority over roads, even those on public land.

Furthermore, they say, counties need to be able to review and possibly nix plans made by the federal agencies if they conflict with what counties want.

In 2013, commissioners Steve Chappell and Keenan Ertel expressed concern about the possible legal expenses when they were asked by the Southwest Public Lands Coalition to pass a resolution asserting county control over roads on federal lands.

But recently the commissioners asked their attorney, John Baxter, to draw up a draft of such a resolution.

At the Aug. 28 P & Z meeting, Atwater said, “When a federal entity proposes something in its land-management plan that is going to impact the county. . . what has to happen is they need to come to the county in the beginning when they’re first thinking about it and bring the idea [and]. . . sit at the table as equal partners in the discussion.”

He emphasized that “coordination” with counties, which is called for in federal regulations, is different from simply taking public comment.

Atwater also said the county’s comprehensive plan is what courts will look to when making decisions about disputes between counties and federal-land agencies.

“What rules the roost is this plan,” he said.

If the agencies propose something that is not consistent with the comprehensive plan, he said, then the Forest Service or BLM must “submit an amendment to the board of county commissioners to amend this plan to be consistent with what they want to do.”

The commissioners would then hold a public hearing to decide whether to amend the plan.

Atwater called for the P & Z board to set up a work session in coming weeks to go over the key chapters in the comp plan.

Padilla maintains that Forest Service officials are open to discussions about important issues and are amenable to compromise when it makes sense. However, he said he has the impression the motorized advocates don’t want any roads closed at all.

“I think they would like us to leave everything open out there. They say they understand not every road needs to be open, but we want to hear, what roads are you willing to work with us to close?”

He noted that the Dolores District showed a willingness to bend when it bucked a nationwide trend by continuing to allow hunters to use motorized vehicles to retrieve game in certain areas. That policy is going into its second hunting season this year, and he is cautiously optimistic that a lot of non-hunting riders haven’t been using game retrieval as an excuse to go cross-country.

“Last year was mostly education,” Padilla said. “This year we’re going to step it up a little more with a little more enforcement, but we’ll still be in the education mode. By Year 3 people should have got it, and 4 and 5 will be the years when we’ll determine whether this is a success.”

Padilla emphasized that he is interested in specifics.

“We’re more than willing as an agency to work with the commissioners with respect to specific issues that they have, but we need to talk about actual roads on the ground. Speaking in generalities makes it difficult to have that conversation.

“If we’re talking about whether we’re ‘coordinating’ or not it doesn’t get us anywhere. We just need to coordinate.”

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From September 2014.