[Federal Register Volume 68, Number 154 (Monday, August 11, 2003)]
[Proposed Rules]
[Pages 47524-47527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19964]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AC87


Special Regulations, Areas of the National Park System

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service (NPS) proposes to amend its 
regulations for Canyonlands National Park by prohibiting motor vehicles 
in Salt Creek Canyon above Peekaboo campsite, in the Needles district. 
This action implements the selected alternative of the Middle Salt 
Creek Canyon Access Plan Environmental Assessment (EA).

DATES: Written comments will be accepted by mail, fax, or electronic 
mail through October 10, 2003.

ADDRESSES: Comments should be addressed to: Canyonlands National Park, 
Attn: Salt Creek Rule, 2282 SW Resource Boulevard, Moab, Utah 84532. 
Fax: (435) 719-2300; Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Superintendent, Canyonlands National 
Park, 2282 SW Resource Boulevard, Moab, Utah 84532; Telephone: (435) 
719-2101; Fax: (435) 719-2300; Email: [email protected].

SUPPLEMENTARY INFORMATION: Congress created Canyonlands National Park 
in 1964 in order to preserve its ``superlative scenic, scientific, and 
archeological features for the inspiration, benefit, and use of the 
public.'' 16 U.S.C. 271. The Park is to be administered subject to the 
1916 NPS Organic Act as amended, which states in part that the 
fundamental purpose of parks is ``to conserve the scenery and the 
natural and historic objects and the wild life therein and to provide 
for the enjoyment of the same in such manner and by such means as will 
leave them unimpaired for the enjoyment of future generations.'' 16 
U.S.C. 1. This provision of the Organic Act was supplemented and 
clarified through enactment of a 1978 amendment to the 1970 General 
Authorities Act which stated in part that ``the authorization of 
activities shall be construed and the protection, management, and 
administration of [Canyonlands] shall be conducted in light of the high 
public value and integrity of the National Park System and shall not be 
exercised in derogation of the values and purpose for which (the park) 
was established, except as may have been or shall be directly and 
specifically provided by Congress.'' 16 U.S.C. 1a-1.
    Salt Creek is the most extensive perennial water source and 
riparian ecosystem in Canyonlands National Park, other than the Green 
and Colorado Rivers. The Salt Creek ``road'' is an unpaved and ungraded 
jeep trail that runs in and out of Salt Creek and, at various 
locations, the trail's path is in the creek bed. It requires a 4-wheel 
drive vehicle to drive, and vehicle use of the trail periodically 
resulted in vehicles breaking down or becoming stuck and requiring NPS 
assistance for removal. Salt Creek is also the heart of the Salt Creek 
Archeological District, the area with the highest recorded density of 
archeological sites in the Park. A tributary canyon to Salt Creek 
contains the spectacular Angel Arch. Until 1998, street-legal motor 
vehicles were permitted to travel along and in the Salt Creek streambed 
for approximately 7.2 miles above the Peekaboo campsite, and an 
additional one mile up the Angel Arch tributary canyon. The Salt Creek 
road does not provide a route for motorized transit through the Park or 
to any inholdings within the Park.
    The previous management plan affecting Salt Creek (the Canyonlands 
National Park Backcountry Management Plan) was completed in January 
1995. This plan, among other things, established a permit system and a 
daily limit on the number of motor vehicles authorized to use the Salt 
Creek road above Peekaboo Springs. The Southern Utah Wilderness 
Alliance (SUWA) filed a broad challenge to the Backcountry Management 
Plan in Federal district court. Among other things, SUWA alleged that 
continued vehicular use of Salt Creek would cause impairment of unique 
park resources and thus would violate the 1916 National Park Service 
Organic Act (16 U.S.C. 1-4).
    In its June 1998 decision, the U.S. District Court for the District 
of Utah interpreted the Organic Act to unambiguously prohibit 
activities in national parks that would permanently impair unique park 
resources, and concluded that the NPS's decision to allow vehicle 
travel in Salt Creek would cause significant permanent impairment. The 
court consequently enjoined the NPS from permitting motor vehicle 
travel in Salt Creek Canyon above Peekaboo Spring.
    Off-highway vehicle groups, interveners in the case, appealed the 
district court ruling, and in August 2000 the United States Court of 
Appeals for the Tenth Circuit reversed the district court decision and 
remanded it for further consideration. The circuit court

[[Page 47525]]

ruled that the district court had applied the wrong standard in its 
interpretation of the Organic Act and should have more fully considered 
whether the agency's interpretation of the Act, as applied to Salt 
Creek, was ``based on a permissible construction of the statute.'' The 
circuit court determined that the administrative record was not clear 
concerning whether motorized travel in Salt Creek would cause permanent 
impairment to park resources. The circuit court agreed with the 
district court that the Organic Act prohibited the NPS from permitting 
``significant, permanent impairment.'' However, the circuit court noted 
that the Organic Act may also prohibit negative impacts that do not 
rise to the level of ``significant, permanent impairment.'' The circuit 
court remanded the case to the district court, with instructions to re-
examine the record to determine whether the agency's conclusion that 
there was no significant impact on Salt Creek Canyon from the decision 
to allow limited vehicular traffic in Salt Creek Canyon was adequately 
supported. The circuit court also instructed the district court to 
consider the new NPS Management Policies in regard to ``impairment of 
park resources or values,'' the central issue in the case, and vacated 
the district court's injunction on motor vehicle use in Salt Creek 
Canyon above Peekaboo Spring.
    Since the mid-1990s Canyonlands backcountry planning effort, 
several important changes have occurred. The National Park Service 
revised its management policies to clarify its interpretation of the 
statutory provision prohibiting impairment of park resources and values 
(see http://www.nps.gov/policy/mp/policies.pdf, chapter 1). The vehicle 
prohibition in Middle Salt Creek Canyon that began in 1998 with the 
district court's injunction has been the only period of significant 
length without vehicle traffic since the 1964 creation of the Park. 
This restriction made it possible to gather information on riparian 
conditions without the effects of vehicles, through the Park's ongoing 
monitoring program and independent research efforts. In 2001, the U.S. 
Fish and Wildlife Service designated critical habitat for the 
threatened Mexican spotted owl, which includes Salt Creek Canyon. In 
addition, vegetation has returned to the vehicle tracks and water flows 
have moved sections of the stream channel since motor vehicles were 
prohibited as a result of the litigation.
    To take into account these changes and to address the impairment 
question following the remand, the NPS initiated an EA process in 
accordance with the National Environmental Policy Act (NEPA). The 
district court subsequently stayed its proceedings until completion of 
this EA. The EA process took advantage of additional scientific 
information and applied the newly stated NPS impairment policy to 
analyze, in more depth than had previously been possible, the impacts 
of a range of access alternatives for Salt Creek from Peekaboo camp to 
the vicinity of Angel Arch (``Middle Salt Creek Canyon''). The EA was 
released for public review and comment in June 2002 and a Finding of No 
Significant Impact (FONSI) was issued in September 2002.
    The EA analyzed three alternatives permitting vehicle access. Each 
of these alternatives would allow vehicle travel on the Middle Salt 
Creek Canyon road under the permit system and daily vehicle limits of 
the 1995 Canyonlands/Orange Cliffs Backcountry Management Plan (BMP). 
Alternative A would allow motor vehicle access on the current alignment 
of the road year-round. Alternative B would allow vehicle access on the 
current alignment of the road each year from October 1 until ice makes 
the creek impassable, or January 31 of the following year at the 
latest; vehicles would be prohibited the remainder of the year. 
Alternative C would realign sections of the road to avoid the streambed 
and riparian area where feasible, and would allow year-round vehicle 
access.
    The fourth alternative analyzed in the EA, Alternative D, would 
prohibit motor vehicle access in Middle Salt Creek Canyon year-round. 
Hiking and pack/saddle stock would continue to be permitted, under the 
provisions of the backcountry management plan.
    Under each of the three vehicle alternatives, the use of motor 
vehicles was found to cause impairment to park resources and values 
because of adverse impacts to the Salt Creek riparian/wetland 
ecosystem. Alternative D, prohibiting vehicle access, was found not to 
cause impairment to park resources and values. Consequently, 
Alternative D was selected in the FONSI for implementation.
    Because each of the three alternatives for vehicle traffic in 
Middle Salt Creek Canyon would cause impairment of park resources and 
values, allowing motor vehicles under any one of these alternatives is 
not permissible under the NPS Organic Act. Other roads in the Needles 
District, as well as elsewhere in Canyonlands National Park, remain 
open to motor vehicles. Salt Creek above Peekaboo remains open to foot 
and pack/saddle stock travel.
    San Juan County and the State of Utah have asserted that they hold 
a right-of-way over the road pursuant to R.S. 2477. R.S. 2477 is a law 
passed in 1866 that provides, ``the right of way for the construction 
of highways over public lands, not reserved for public uses, is hereby 
granted.'' R.S. 2477 was repealed in 1976, subject to valid existing 
rights. The NPS has sought and examined information relevant to the 
claim that this route is an R.S. 2477 right-of-way. Based on this 
review, the NPS concluded that it had not been shown that a valid 
right-of-way was constructed during the period when the lands were 
unreserved. Promulgation of this rule will not affect the ability of 
the County or State to pursue in an appropriate forum the claim that 
this is a valid R.S. 2477 right-of-way.
    The proposed rule would prohibit motorized public use in Salt Creek 
Canyon above Peekaboo Spring. Although these regulations do not apply 
to motor vehicle use for administrative purposes, the Park as a matter 
of policy has previously chosen to forgo all such motorized use unless 
necessary for emergency rescue purposes.
    Public Participation: If you wish to comment, you may submit your 
comments by any one of several methods. You may mail comments to 
Canyonlands National Park, 2282 SW Resource Boulevard, Moab, Utah 
84532. You may also comment via the Internet to [email protected]. 
Please include your name and return address in your Internet message. 
Finally, you may hand-deliver comments to the Park in the previously 
provided address. Our practice is to make comments, including names and 
home addresses of respondents, available for public review during 
regular business hours. Individual respondents may request that we 
withhold their home address from the rulemaking record, which we will 
honor to the extent allowable by law. There also may be circumstances 
in which we would withhold from the rulemaking record a respondent's 
identity, as allowable by law. If you wish us to withhold your name 
and/or address, you must state this prominently at the beginning of 
your comment. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.
    Drafting Information: The principal author of this proposed rule is 
David Wood, Canyonlands National Park.

[[Page 47526]]

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The economic effects of this rule are local in nature and negligible in 
scope. There are several other roads throughout the Park that 
commercial motor vehicles may continue to use.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. The rule will have no 
effect on small or large businesses. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on state, 
local, or tribal governments or the private sector. The Department has 
determined that this rule meets the applicable standards provided in 
Section 3(a) and 3(b)(2) of Executive Order 12988.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630 and the Attorney General's 
Guidelines for the evaluation of Risk and Avoidance of Unanticipated 
Takings, the rule does not have takings implications. The EA/FONSI and 
the impairment finding with respect to motorized use of the Salt Creek 
road were made as a direct result of the still pending litigation 
brought by Southern Utah Wilderness Alliance challenging the permit 
system which Canyonlands instituted for motor vehicles to use this 
road. Since this lawsuit was originally filed, state and local entities 
have asserted that the road constitutes an R.S. 2477 right-of-way, 
which in this case would be a right-of-way across public lands in favor 
of the State and local county. As noted previously, the NPS has 
concluded that the information available to it is not sufficient to 
demonstrate that a valid right-of-way was created prior to reservation 
of these lands and that closure to motor vehicles is required to 
prevent an impermissible impairment to park resources. No evidence 
exists that either the State or County has ever managed or maintained 
this road, nor have they commenced administrative or judicial 
proceedings to lead to a determination whether any such claims are 
valid. Nevertheless, should it be subsequently determined that the 
State and County do hold a valid R.S. 2477 right-of-way, the regulation 
will be revisited to ensure that it is consistent with the property 
rights that are afforded to the holders of such valid rights-of-way.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This regulation will not have a substantial 
direct effect on the states, or on the distribution of power and 
responsibilities among the various levels of government. The rule 
addresses the prohibition of motorized use in part of a canyon in 
Canyonlands National Park. Canyonlands has had proprietary jurisdiction 
over the canyon since the creation of the Park in 1964. On April 9, 
2003, the Department of the Interior and the State of Utah entered into 
a Memorandum of Understanding to implement ``a State and County Road 
Acknowledgment Process.'' The Memorandum excludes R.S. 2477 rights-of-
way within units of the National Park System in Utah and provides that 
the ``State, Utah counties and the Department shall work cooperatively 
to minimize trespass situations on roads'' within national parks.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I is not required.

National Environmental Policy Act

    This rule is not a major Federal action significantly affecting the 
quality of the human environment. Pursuant to the National 
Environmental Policy Act, 42 U.S.C. Sec.  4332, NPS has prepared an 
Environmental Assessment (EA) and a Finding of No Significant Impact 
(FONSI) on the proposed use of Salt Creek Road. The EA and FONSI may be 
viewed at http://www.nps.gov/cany or copies may be obtained by 
contacting Canyonlands National Park.

Government-to-Government Relationship with Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249), and the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951), and 
512 DM 2, we have evaluated potential effects on federally recognized 
Indian tribes and have determined that there are no potential effects.

List of Subjects in 36 CFR Part 7

    District of Columbia, National Parks, Reporting and recordkeeping 
requirements.
    36 CFR part 7 is proposed to be amended as follows:

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

    1. The authority citation for part 7 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also 
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

    2. Add Sec.  7.44 to read as follows:

[[Page 47527]]

Sec.  7.44  Canyonlands National Park.

    (a) Motor Vehicle Use. Motor vehicles are prohibited in Salt Creek 
Canyon above Peekaboo campsite.
    (b) [Reserved]

    Dated: July 18, 2003.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-19964 Filed 8-8-03; 8:45 am]
BILLING CODE 4312-DF-P