Kane County UT Uses State Law to Reclaim Roads from national monument

By Toni Thayer
Garfield County News

8/28/03

In southern Utah, Kane County officials went quietly about their jobs of protecting and securing their citizens’ roads in accordance with Utah State laws. The response from the Federal agency that’s been steadily pushing for control over those roads was one of threats and intimidation, including criminal prosecution.

On Aug. 13, Kane County Sheriff Lamont Smith and Commissioner Mark Habbeshaw drove 19 county roads within the Grand Staircase-Escalante National Monument (GSENM) and removed 31 signs put up by the Bureau of Land Management (BLM, the agency that oversees the GSENM).

Habbeshaw said in an Aug. 24 telephone interview, “Only BLM restrictive signs [ones that limit vehicle use and public access] were taken down. We delivered them, intact and undamaged, to GSENM headquarters in Kanab with notice of State law to remove any others on county roads.”

At issue is the longstanding battle for control of the RS 2477 roads since the dark-of-night GSENM land grab by Pres. Bill Clinton in 1996. The roads are still maintained by Kane and Garfield Counties (the two counties that make up the monument), but are now claimed by the GSENM as their very own.

“One of the roads has been deemed a valid RS 2477 right-of-way by both the BLM and U.S. District Court. In spite of that recognition Hunsaker [current GSENM manager Dave Hunsaker] insists on keeping restrictions on the county road. He’s also placed a “Road End” sign on a county road where he wanted to end the road at a monument hiking trailhead. Hunsaker attempted to close the county road without consultation with the county,” says a recent Kane County press release.

Habbeshaw said that the unresolved road issue is now affecting area businesses and the county’s economy, “People have let us know that they wanted to come here on vacation, but didn’t because of the road issue. They’re going to other counties instead.”

Kane County’s press release says they attempted to resolve the restrictive signs and management issue with the GSENM, but that “Hunsaker, instead, created a dead end to any resolution other than legal action.”

Finally, in March 2003, the county sent a letter to Hunsaker requesting removal of the restrictive signs, citing complaints from Kane and Garfield county residents of increased harassment by BLM employees on Kane County roads vs. ones in Garfield County.

The difference between BLM’s control in the two adjacent counties goes back to 2000 when each made their independent decisions regarding Federal signage on their roads.

In a letter dated Oct. 9, 2000, to Kate Cannon, former GSENM manager, Garfield County Commissioners determined “that it is not in the interest of the traveling public or the residents of Garfield County at this time to authorize or agree with the Monument’s numbering system for Garfield county roads.” This vote stopped BLM from installing similar restrictive signs in Garfield County.

Current Garfield County Commissioner Clare Ramsay also served as a commissioner in 2000 when the no vote was handed to BLM. He said in an Aug. 25 telephone interview, “We let it be known at the beginning of the sign process that we didn’t want any BLM signs on Garfield County roads. Kane County, at that time, let them do it.”

“With the county’s lawsuit pending over the legality of the creation of the Monument itself, ” said Ramsay, “we would have been admitting that they owned the roads if we’d let them put Monument signs up.”

A Garfield County News report on March 8, 2001, quotes former GSENM manager Cannon in a public meeting with the Garfield County commissioners, where she confirmed that BLM restrictive signs would be removed from county roads, “We can take those off. Those are purely at your wish.” The Garfield County signs were subsequently removed.

Ramsay voiced adamant approval for the current enforcement action, “We support what Kane County did 100%. They’re asserting their rights, and they’re not standing alone on this one. We’re willing to go with them all of the way.”

When asked if he thought Kane County’s actions were “provocative” as labeled by the Salt Lake Tribune in their coverage of the event, Ramsay noted, “This is not a sagebrush rebellion. If anyone’s been operating outside the law, it’s the Monument management and staff. They’ve been doing it from the 'get go', since the Monument was first set up.”

According to the Tribune article by Brent Israelsen, BLM’s immediate reaction was to initiate “a criminal investigation of two elected Kane County leaders” allegedly because “removing or destroying federal signs on federal lands is a crime.”

“There was quite a bit of effort on the part of Kane County to work with the Monument office to resolve these road issues, but it didn’t come to fruition. Hunsaker pretty well ignored them. The county did great work and research to show BLM actions were contrary to State law,” State Rep. Mike Noel (R) said in a telephone interview on Aug. 26.

Noel went on, “Rather than a criminal investigation, BLM’s going to put together an independent group to review and investigate the events that led up to the county’s actions. Marty Ott, formerly from Tropic and the current State Director for Montana BLM, is coming down to mediate the issue and look into it.”

Kane County said they requested a meeting with the GSENM over their actions “to amicably resolve the issue” and expressed their disappointment that Hunsaker, instead, “not only elevated the issue to one of public controversy, but also included threats of criminal prosecution.”

Hunsaker is quoted by the Tribune as saying, “Just because they claim it, doesn’t mean it is so.” He seems to have forgotten that his "words of wisdom" to the counties also apply to his own Federal agency’s actions.

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Related Story:

UT: County Claims BLM “Taking” Roads without Due Process

By Mark Habbeshaw, Kane County Commissioner
Published in Sierra Times - 8/28/03

Kane County officials recently removed restrictive Bureau of Land Management signs from county roads and returned them to the Grand Staircase-Escalante National Monument. The county asked for a meeting to amicably resolve the issue, advising the monument management that the county would not make this a public issue. The county is disappointed that monument manager, Dave Hunsaker, not only elevated the issue to one of public controversy but also included threats of criminal prosecution.

Hunsaker publicly claimed that he was “working to address the county’s concerns” regarding federal restrictions on county roads. The county contends that Hunsaker, instead, created a dead end to any resolution other than legal action.

Kane County formally requested the removal of federal restrictions from county roads in a letter to Hunsaker in March of 2003. In two recent meetings attempting to resolve the issue Hunsaker first indicated that he would have to check with his supervisors and finally advised that he could not remove the restrictive signs without amending the monument plan. Hunsaker declined to discuss specific socio-economic and legal issues. It was apparent during the meetings that Hunsaker was not open to resolution. Consequently, he was advised that the county would seek a legal remedy.

Hunsaker also publicly stated “the legality of the county’s RS 2477 road claims within the monument has never been established”. “Just because they claim it doesn’t mean it is so” he said. The county claims that while that statement is also not true it does reflect the reason the county is unable to resolve the issue with Hunsaker.

One of the roads has been deemed a valid RS 2477 right-of-way by both the BLM and U.S. District Court. In spite of that recognition Hunsaker insists on keeping restrictions on the county road. Hunsaker also placed a “Road End” sign on a county road where he wanted to end the road at a monument hiking trailhead. Hunsaker attempted to close the county road without consultation with the county.

Both federal and state law establishes that RS 2477 rights-of-way were granted by Congress without application, without recording and without the recognition of the BLM. RS 2477 rights-of-way were established by public use in the state of Utah. If Hunsaker disagrees with a county asserted right-of-way he must legally challenge the validity of the road right, he can not simply ignore the existence of a county road as he is presently doing. Hunsaker has been unable to explain his source of authority to restrict the use of county roads. The monument plan does not provide Hunsaker the authority to close county roads.

The county has not only asserted valid RS 2477 rights to the BLM but has documented those roads through the Governor’s Roads Preservation Program; in addition, Congress has affected a moratorium curtailing BLM action regarding RS 2477 roads and current litigation created a status quo condition on roads.

Previous monument manager Kate Cannon advised the Kane County sheriff that only numbered signs were to be placed on Kane County roads and that restrictive signs would be removed. Hunsaker publicly doubts the sheriff’s claim. However, Cannon was quoted as follows in the March 8, 2001 issue of the Garfield County News “See, under state law, the county can say where non-street legal ATVs can go”. She said. “And so you [Garfield County] said, we want them on this road but we don’t want them on that road. So we just reflected that in our plan. And the No ATV signs that are on the road number posts, simply reflect what the county expressed. We can take those off. Those are purely at your wish.” Consequently, Garfield County officials instructed Cannon, to remove all monument road signs from their county’s roads until resolution of the current roads litigation. Cannon removed not only the restrictive signs but also the signs with federal road numbers without amending the monument plan.

Last February the Kane County Commission considered numerous complaints from Kane and Garfield County residents and visitors to the monument regarding signing restrictions and verbal harassment on Kane County roads. Families are told that they can not travel certain county roads, tourists are avoiding Kane County and residents have had numerous conflicts with monument employees on county roads. County officials have an affirmative responsibility to protect county property rights and Kane County officials believe that judicial review in either state or federal court will uphold their actions.

County officials followed a careful course in consulting with county and state attorneys and in following state law in this matter. The county has developed documentation supporting RS 2477 rights-of-way on the twenty roads involving the removal of thirty one restrictive signs. The county did not ask for the removal of signs with federal road numbers believing that Kane and Garfield Counties could work with the monument in developing a new counties’ road numbering system that also addressed the monument’s needs.

Kane County is proud of its working relationship with other federal agencies in our area. Local-federal issues are not always easy to resolve but the county has successfully worked issues out at the table with other federal agencies. It is disappointing to the county that the monument management is more closely aligned with preservation organizations than it is interested in fulfilling Department of Interior Secretary Norton’s four Cs - conservation through communication, consultation and coordination with local government.

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(Note from the author:

OFFICIALS IN KANE COUNTY, UT NEED OUR HELP AND COMMENTS OF SUPPORT

Since Kane County UT removed BLM signs from their roads, top state and federal officials have been getting phone calls from individuals who want Kane County officials criminally prosecuted.

These Kane County heros who stood up for our rights need help in balancing the scale . . . please let the following officials and newspapers hear from you. Tell them you support Kane County's actions, and it's time they support the rights of American citizens too!!!

US Attorney 801-524-5682
Utah Gov. Mike Leavitt 801-538-1000
Utah State BLM 801-539-4001
Utah State Attorney General 801-538-9600
Deseret Morning News letters@desnews.com
PO Box 1257
Salt Lake City, UT 84110
Fax 801-237-2530
Comment line 801-333-7474
feedback@desnews.com

Salt Lake Tribune letters@sltrib.com
Public Forum
P O Box 867
Salt Lake City, UT 84111
Must include full name, address, daytime telephone number or letter will be deleted!!

The Spectrum opinions@thespectrum.com
275 E St. George Blvd
St. George, UT 84770
Fax 435-674-6265
Only 250 words or less will be published.