A portion of the Burr Trail is chip-sealed by road crews in Garfield County, Utah, east of Capitol Reef National Park, on Tuesday, April 30, 2019/(c) Ray Bloxham/Southern Utah Wilderness Alliance.

Federal Bureau of Land Management officials from Utah to Washington, D.C., rushed approval, with little if any public scrutiny, for a Utah county to chip-seal more than seven miles of a remote high desert track that environmental groups fear will adversely impact solitude, wildlife, and lead to resource damage on wild lands next to Capitol Reef National Park, according to a lawsuit filed against the agency.

The 18-page filing (attached below) submitted Wednesday by the Southern Utah Wilderness Alliance, The Wilderness Society, and the National Parks Conservation Association charges that Garfield County had no valid right to improve the stretch of Burr Trail, which heads southeast from the eastern boundary of the national park through a rugged landscape with cliffs 800 feet high. The section in question also passes by the Mount Pennell Wilderness Study Area and the Long Canyon Land with Wilderness Characteristics unit.

More so, the county had staged its road equipment near the Burr Trail last Friday, when the BLM quietly approved the work, the lawsuit charges. By the time the public was notified Monday afternoon, most of the work had been completed, it adds.

"BLM’s decision was made under the cover of darkness; it was signed on Friday, April 26, 2019, but not made available to the public until Monday, April 29, at 1:53. p.m., reads the lawsuit, which was filed in the U.S. District Court for Utah. "Based on information and belief, local BLM officials met with representatives of Garfield County on Friday and/or Saturday April 26 and 27 to discuss this matter and convey that the Final (environmental assessment) and (Finding of No Significant Impact) were completed. Garfield County immediately commenced work on the Chip Seal Project, before the public had been made aware that the (permit) had been signed and issued."

According to the environmental groups, "Garfield County has sought to pave the Burr Trail for nearly 35 years. Under the Trump administration, their request was approved in less than 30 days, despite repeated denials of the request from previous Democratic and Republican administrations."

Utah officials long have sought approval to improve dirt tracks that meander across federal lands in the state, claiming such access was guaranteed under a Civil War-era law.

R.S. 2477 was passed by Congress in 1866 to allow the construction of roads across federal lands that were not already reserved for public use. In 1976 Congress repealed the law, but not before providing that any valid R.S. 2477 route existing at the time of the repeal could continue in use. Since then, there have been many debates and many lawsuits over what constituted a valid R.S. 2477 route. In years past some states, counties, and off-road groups have claimed that washes, two-tracks, even cow paths and hiking trails are "highways" that they are entitled to open to motorized travel, according to those who oppose the granting of these rights.

From time to time R.S. 2477 claims arise across the Western landscape. And in recent years there have been controversial court decisions that denied some of these rights. One example surfaced in 2007 when a federal judge tossed out a lawsuit seeking to justify off-road vehicle use in Surprise Canyon near the western edge of Death Valley National Park.

In 2009 a federal appellate court prevented Kane County, Utah, officials from placing signs in Glen Canyon National Recreation Area to designate ORV travel routes until the validity of R.S. 2477 routes could be adjudicated. More to the point, the judges held that the county's actions violated the supremacy clause of the U.S. Constitution. That clause provides that federal law supersedes local or state laws involving federal issues where the two conflict.

Those contentious debates are arising again with the Burr Trail. Key in this case, the plaintiffs charge, is that the BLM could only permit the roadwork if the state had been awarded R.S. 2477 rights by a federal court or those rights were "recognized by BLM in an administrative non-binding determination."

Neither instance had been made, the lawsuit charges.

“The chip-sealing of the Burr Trail near Capitol Reef National Park by Garfield County is proof that the state of Utah’s 20+ RS 2477 lawsuits, seeking title to rights of way over tens of thousands of miles of routes across federal public land in Utah, is driven by the desire to open up Utah wild lands to development,” Stephen Bloch, legal director of the Southern Utah Wilderness Alliance, said Wednesday.

“They literally want to pave it all. Garfield County has now paved a stretch of dirt road in the middle of the desert," he added. "There is no better illustration of the state’s and counties’ true intentions behind their lawsuits seeking title to rights-of-way for remote routes traversing public lands in Utah. The fact that this decision was made from the very top by Trump officials in Washington, D.C., is further proof that President Trump’s assault on Utah’s magnificent red rock wilderness persists.”

The lawsuit claims the state of Utah does not have R.S. 2477 rights to the Burr Trail, and that the BLM ignored that point in issuing the permit. In doing so, the federal agency violated the Federal Land Policy and Management Act, and the BLM's own policies, the filing added.

In also arguing that the BLM violated the National Evironmental Policy Act by permitting the work, the plaintiffs ask that the court order the agency to remove the chip-seal, which the National Park Service in years past has opposed.

According to the lawsuit, when the NPS objected to a previous request to chip seal this section of the Burr Trail, it raised concerns about impacts to air quality, land use, wildlife, and visitor experience. The Park Service also worried about how the improved road could lead to increased visitation "with potentially serious impacts to Capitol Reef National Park and surrounding BLM-managed lands," the lawsuit stated.

The plaintiffs said that when the BLM on April 1 released its draft environmental assessment on the road work, that document failed to state the agency's purpose and need for the work, and did not consider any alternatives to the work. The federal agency also denied a request made by SUWA to extend the 15-day public comment period.

“The decision was rushed through to allow work to commence before the ink was dry and with no apparent consideration of public comments,” said Phil Hanceford, conservation director at The Wilderness Society’s BLM Action Center. “This is a disturbing way to conduct business on public lands that are owned by all Americans, especially when the BLM knew of the longstanding and contentious nature of this proposed action.”

At NPCA, Cory MacNulty, associate director for the organization's Southwest Region, said, “Mile by mile, Garfield County has chip-sealed the Burr Trail up to the boundaries of Capitol Reef National Park with clear intent to continue right through the park boundary, up the iconic Burr Trail Switchbacks, to the other side."

“Maintaining unpaved access to the Waterpocket District is critical for the National Park Service to uphold its commitment to manage this area for its wilderness solitude and natural quiet, sense of backcountry adventure and discovery," she added. "With more than 15 million visitors drawn to Utah national parks each year, paving these areas will surely lead to significant increases in traffic, taking away from what makes these wild lands so special.”