High court asked to rule on OHVs

[ohvnews]

By Christopher Smith

The Salt Lake Tribune

WASHINGTON -- Warning that control of Western public lands could be hijacked by the "most litigious" special interest groups, the Bush administration is asking the U.S. Supreme Court to overturn a lower court's ruling that the Bureau of Land Management can be legally compelled to protect potential Utah wilderness areas from off-road-vehicle damage.

Conservationists say the arguments raised by the government's appeal have broad ramifications beyond potential wilderness areas in the West, posing a threat as well to the protection afforded to existing congressionally designated scenic preserves.

"What the Bush administration is arguing would set an extraordinary precedent," said Scott Groene of the Southern Utah Wilderness Alliance (SUWA) in Salt Lake City. "They are pushing to relieve themselves of the congressionally imposed obligation to protect wilderness areas in the West."

Groups representing motorized recreationists, however, would like to see the high court overturn the 10th Circuit ruling.

"We've been using some of those areas in southern Utah for off-highway-vehicle recreation for years, and the wilderness activists are trying to get us kicked out by saying our use is incompatible with the protection of wilderness values," said Clark Collins, director of the Idaho-based Blue Ribbon Coalition. "The very fact they claim these lands have wilderness value and potential in spite of us recreating there for years supports our contention that off-highway-vehicle use does not have a negative impact on these areas."

SUWA sued the BLM in 1999 for allegedly failing to adequately monitor or manage off-road recreation in proposed "wilderness study areas" at Moquith Mountain, Parunuweap Canyon, Sids Mountain and Behind the Rocks in southern Utah. A Utah federal judge noted the BLM had made some effort to prevent impairment of the lands by off-roaders and dismissed the claim in 2001, ruling the agency could not be sued simply because an ongoing management action wasn't deemed sufficient by SUWA.

But a divided 10th Circuit Court of Appeals reversed the Utah judge's ruling in August 2002, finding that the BLM can indeed be sued over its day-to-day caretaking of wilderness study areas rather than only its final actions, a decision that Interior solicitors believe could significantly disrupt the abilities of BLM and U.S. Forest Service officials to manage public lands without constant litigation.

Applying the Administrative Procedure Act with the 10th Circuit interpretation in the Utah case, "permits courts to engage in wide-ranging review of an agency's entire course of conduct, to order systemic changes in an agency's day-to-day operations that were not even sought from the agency in the first instance, and to divert scarce resources from the activities chosen by the agency, taking into account all relevant interests, to the activities preferred by the most litigious plaintiffs," attorneys for Interior Secretary Gale Norton wrote in a petition submitted Friday asking the Supreme Court to review the 10th Circuit ruling.

The high court has yet to decide whether it will accept the case for review. A cross-section of environmental and recreation user groups as well as the state of Utah have joined as parties in the proceedings.

csmith@sltrib.com

http://www.sltrib.com/2003/Jul/07222003/utah/77612.asp

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Chris