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Sierra Club v. Hodel

ELR Citation: 18 ELR 20715
Nos. No. 87-C-0120A, 675 F. Supp. 594/(D. Utah, 11/30/1987)

The court upholds the Bureau of Land Management's (BLM's) decision not to regulate or prepare an environmental impact statement (EIS) for proposed improvements by a county government to the Burr Trail, a local road passing between two wilderness study areas (WSAs) in Utah. Plaintiffs sued BLM and the county government, challenging the legitimacy and scope of the road's right-of-way through federal lands, and alleging that BLM had failed to comply with the requirements of the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) in determining that the proposed construction could proceed. The court first notes that it has no jurisdiction to enter an order affecting a portion of the road that does not affect any federal interest. The court then holds that plaintiffs have standing to request an EIS and to challenge the road's right-of-way, since they have alleged sufficient injury to environmental concerns that lie within the zones of interest protected by NEPA and FLPMA.

The court holds that the county has a valid right-of-way over the Burr Trail. In 1866, Congress enacted legislation granting rights-of-way for the construction of highways over public lands not reserved for public uses. Under Utah law, a grant becomes a public highway by sufficient use to indicate the public's intention to accept the grant. The evidence indicates that there has long been public use and county maintenance of the road so as to establish a right-of-way. Neither an executive order in 1934 withdrawing unreserved public lands in Utah from settlement nor the 1934 Taylor Grazing Act affected the validity of the right-of-way, and although FLPMA repealed the 1866 legislation, it explicitly preserved existing rights-of-way. The court also holds that the proposed improvements are within the scope of the county's right-of-way. Under Utah law, a right-of-way granted pursuant to the 1866 legislation may be wide enough to allow travelers to pass each other, and a road may deviate from the original path wherever reasonable and necessary. Moreover, Utah law provides that the scope of a right-of-way reflects the uses to which the road has traditionally been put, and the proposed improvements are in furtherance of the Burr Trail's traditional uses. The court held that even if the county's purpose in improving the road is to promote tourism, as plaintiffs allege, the proposed changes are still within the scope of the right-of-way.

The court holds that the presence of WSAs on either side of the road does not preclude the proposed construction. The right-of-way is a valid existing right, and under BLM policy such rights may not be unreasonably interfered with, even where exercise of the right impairs an area's wilderness suitability. The court holds that in general, BLM may not regulate the project, since the proposed activity will not unduly degrade the WSAs. The road improvement will employ the latest available technology and the least degrading alternatives, and the project reflects a reasonable pace and progression of the historical uses of the trail. In addition, the manner in which the project will be carried out will minimize visual effects. However, the court holds that increased traffic and periodic maintenance work on one area of the road will have a sufficient effect on one of the WSAs to trigger the FLPMA requirement that the work done there be the least degrading alternative. As to that area, the court holds that FLPMA requires the county to alter the course of the road.

The court next holds that BLM's determination that the road improvements were reasonable and necessary and did not unduly degrade the WSAs constitutes a major federal action under NEPA. In making this determination, BLM had the power to suspend the project, and still plans to monitor construction and require modification where necessary. However, the court holds that the road improvement project will have no significant impact on the environment. Some aspects of the project, such as the installation of culverts and catch basins, may actually improve the environment. Traffic on the road is expected to increase whether or not the improvements are made. Endangered species of animals in the area would not be affected by the construction, although further study of sensitive and endangered plant species along the trail is necessary. While archaeological sites along the trail will be adversely affected, several mitigation measures are possible. The project will have a beneficial effect on public safety while having relatively little effect on the environment. The plan does not call for the construction of an entirely new road, but rather will only upgrade an existing one. Even if a significant impact from the project were likely, preparation of an EIS at this point would be superfluous, since environmental reports previously prepared on the Burr Trail have resolved most of the issues that an EIS would address. Finally, the court rejects defendants' claim that plaintiffs tortiously interfered with the county's contractual relations by filing this lawsuit, and also denies the county's request for damages to compensate it for construction delays resulting from this litigation.

Counsel for Plaintiffs
Wayne G. Petty
Moyle & Draper
600 Deseret Plaza, No. 15 East First South, Salt Lake City UT 84111-1901
(801) 521-0250
Lori Potter
Sierra Club Legal Defense Fund
Symes Bldg., 820 16th St., Suite 514, Denver CO 80202
(303) 863-9898

Counsel for Defendants
Joseph W. Anderson, Ass't U.S. Attorney
U.S. Cthse., Room 476, 350 S. Main St., Salt Lake City UT 84114
(801) 524-5682