[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Rules and Regulations]
[Pages 32871-32876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13234]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD23


Canyonlands National Park--Salt Creek Canyon

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service (NPS) is amending 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: Effective July 14, 2004.

FOR FURTHER INFORMATION CONTACT: Superintendent, Canyonlands National 
Park, 2282 SW Resource Boulevard, Moab, Utah 84532; Telephone: (435) 
719-2101.

SUPPLEMENTARY INFORMATION:
    Congress created Canyonlands National Park in 1964 in order to 
preserve its ``superlative scenic, scientific, and archeologic features 
for the inspiration, benefit, and use of the public.'' 16 U.S.C. 271. 
The Park is to be administered subject to the NPS Organic Act, as 
amended, which states in part that the ``authorization of activities 
shall be construed and the protection, management, and administration 
of these areas [parks] 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 purposes for which these 
various [park] areas have been 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 four-
wheel-drive vehicle to drive, and previous 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 in Middle Salt Creek 
Canyon 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 trail 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 motorized vehicles authorized to use the 
Salt Creek trail above Peekaboo Springs. The Southern Utah Wilderness 
Alliance (SUWA) challenged the Backcountry Management Plan in Federal 
district court. Among other things, SUWA

[[Page 32872]]

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) and Canyonlands 
National Park enabling act (16 U.S.C. 271).
    In its June 1998 decision, the U.S. District Court for the District 
of Utah interpreted the Organic Act unambiguously to 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 motorized vehicle 
travel in Salt Creek Canyon above Peekaboo Spring.
    Off-highway vehicle groups, intervenors 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 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 motorized vehicle use in Salt Creek 
Canyon above Peekaboo Spring.
    Since the Canyonlands backcountry planning effort in the mid-1990s, 
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 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 in that area 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, in the absence of motor vehicle traffic, vegetation has 
returned to the vehicle tracks and water flows have moved sections of 
the stream channel.
    To take these changes into account and to address the impairment 
question following the remand, the NPS initiated an environmental 
assessment process in accordance with the National Environmental Policy 
Act (NEPA). The district court subsequently stayed its proceedings on 
remand until completion of this environmental assessment. The 
environmental assessment process took advantage of additional 
scientific information and applied the revised Management Policies on 
impairment to analyze, in more depth than had previously been possible, 
the impacts of a range of access alternatives for Middle Salt Creek 
Canyon. The environmental assessment was released for public review and 
comment in June 2002 and a Finding of No Significant Impact (FONSI) was 
issued in September 2002.
    The environmental assessment analyzed four alternatives, including 
three alternatives which would have permitted vehicle access. Each of 
these three alternatives would have allowed vehicle travel on the Salt 
Creek trail under the permit system and daily vehicle limits of the 
1995 Canyonlands/Orange Cliffs Backcountry Management Plan (BMP). 
Alternative A would have allowed motor vehicle access on the current 
alignment of the trail year-round. Alternative B would have allowed 
vehicle access on the current alignment of the trail each year from 
October 1 until ice makes the creek impassable, or January 31 of the 
following year at the latest; vehicles would have been prohibited the 
remainder of the year. Alternative C would have realigned sections of 
the trail to avoid the streambed and riparian area where feasible, and 
would have allowed 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 motorized 
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 have caused impairment of park resources 
and values, allowing motor vehicles under any one of these alternatives 
is not permissible under the NPS Organic Act. Roads elsewhere in the 
Needles District, as well as elsewhere in Canyonlands National Park, 
remain open to motorized 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 Salt Creek trail pursuant to R.S. 2477. R.S. 
2477 was a Federal law passed in 1866 providing that ``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 has 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.
    This final rule would prohibit motorized public use in Salt Creek 
Canyon above Peekaboo Spring. Although this rule does 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.

Discussion of Comments

    The proposed rule was published in the Federal Register on August 
11, 2003, for public review and comment. The NPS received comments on 
the proposed rule from over 2800

[[Page 32873]]

individuals and 25 organizations. The comments were generally similar 
to those previously submitted on the EA (which prompted over 7000 
comment letters). The majority (over 97 percent) of the commenters 
supported the proposed rule. Of this 97 percent, nearly 95 percent sent 
letters with wording similar to that suggested by constituency groups. 
Of the less than 3 percent of commenters that did not support the rule, 
approximately one-third sent letters with wording similar to that 
suggested by constituency groups. Comments on the rule, and National 
Park Service responses, follow.
    Comment: The rule is needed to alleviate the impacts of vehicle 
traffic through the creek and riparian area. These impacts on 
streambanks, water quality, vegetation, and wildlife are not 
acceptable, particularly on one of the most important water sources and 
riparian areas in a national park. The rule would not substantially 
restrict the public's opportunity to enjoy Canyonlands, and would 
ensure that a high-quality experience would continue to be available 
for future generations.
    Response: These ideas are generally consistent with the findings of 
the Middle Salt Creek EA.
    Comment: The jeep trail is a highway right-of-way under R.S. 2477, 
so the NPS cannot prohibit motorized vehicle traffic on it.
    Response: Though San Juan County has made various statements 
claiming that the route is an R.S. 2477 right-of-way, it has only 
recently indicated its intention to commence legal proceedings for a 
determination on whether such claims are valid. Promulgation of this 
rule will not affect the ability of the County or State to pursue such 
a determination in an appropriate forum. Should it be subsequently 
determined that the State and/or County do hold a valid R.S. 2477 
right-of-way, the regulation will be revisited to ensure that it is 
consistent with the rights associated with such a right-of-way.
    Comment: The EA finding (on which the rule is based) that vehicle 
travel in Salt Creek causes impairment of park resources is 
inconsistent with the determination in a 1995 Finding of No Significant 
Impact (FONSI) that parkwide backcountry management actions, which 
included limited vehicle traffic in Salt Creek, would have ``minor and 
temporary'' environmental impacts. The previous Salt Creek permit 
system provided reasonable balance between the two responsibilities 
contained in the NPS Organic Act, to provide for conservation and 
enjoyment of park resources by means that leave them unimpaired for the 
enjoyment of future generations.
    Response: The Tenth Circuit Court of Appeals, in SUWA v. NPS, noted 
that the level of impact caused by vehicle travel in Salt Creek was the 
source of conflicting statements in the administrative record for the 
1995 Backcountry Management Plan. The 1995 decision was an interim 
action, intended to be revisited in approximately five years after the 
actual impacts of the backcountry plan were monitored, and subject to 
change if the impacts were unacceptable. This monitoring data, as well 
as other information not available when the 1995 decision was made, 
informed the 2002 decision. Based on this additional information, the 
NPS found that alternatives permitting vehicle traffic would cause 
significant impacts as well as impairment of park resources, and thus 
were not permissible.
    Comment: The NPS gave inadequate consideration to the importance of 
Angel Arch and the recreational opportunity provided by Salt Creek 
Road.
    Response: The EA recognized that Salt Creek Canyon is ``a unique 
recreational experience, whether accessed on foot or by vehicle.'' It 
characterized ``the opportunity to view Angel Arch,'' as well as ``the 
opportunity to experience the mix of other resources found in Salt 
Creek Canyon,'' as ``unique.'' (A ``unique'' experience was defined as 
``only available at a single location,'' such as ``visiting Delicate 
Arch or some one-of-a-kind feature,'' as opposed to ``uncommon'' or 
``common.'') It evaluated the impacts of four alternatives, three 
involving vehicle access, on accessibility as well as on hiking/
backpacking. The three vehicle-access alternatives had positive effects 
on accessibility but mostly negative impacts on hiking, while the foot 
and pack animal access alternative (which is now being promulgated as 
the final rule) had negative impacts on accessibility but mostly 
positive impacts on hiking. While vehicle access to Angel Arch and Salt 
Creek is important to many visitors, a nonmotorized experience and a 
desert creek that is not impacted by vehicle traffic are equally 
important to many other visitors.
    Comment: The proposed rule limits viewing Angel Arch to those able 
to hike to it (about 18 miles round trip), eliminating this opportunity 
for the ``vast majority'' of Park visitors.
    Response: The Park does not have overall statistics on the 
transportation mode(s) of every visitor (two-wheel driving, four-wheel-
driving, hiking, etc.), but each mode makes up a significant contingent 
of total visitation. Vehicle use of the jeep trails in Salt Creek and 
Horse Canyon (accessed via Salt Creek) decreased after vehicle travel 
above Peekaboo was prohibited, but increases in vehicle camping use at 
Peekaboo and backpack use of the Salt Creek/Horse Canyon and Upper Salt 
Creek zones offset this decline. (The NPS does not formally count the 
visitors that actually travel to Angel Arch, but visitors in these 
areas are the ones actually counted that are most likely to visit the 
arch.) Vehicle day use of the Salt Creek and Horse Canyon routes 
dropped from 3737 people in 1998, when vehicles could travel to within 
one-half mile of Angel Arch for about half the year, to 2814 people in 
2001, after vehicles were prohibited above Peekaboo, a decrease of 913 
people, but backpacking and vehicle camping use increased by 1007 
people over the same period. The vehicle prohibition does not appear to 
have decreased overall visitor use in this area. Whether or not 
vehicles are permitted above Peekaboo, visitation to Salt Creek and 
tributary canyons has accounted for only about 1 percent of total 
annual park visitation. Visitors also continue to have the option to 
access Angel Arch on horseback. Over 240 miles of four-wheel-drive 
roads, plus an additional 42 miles of two-wheel-drive roads, remain 
available for vehicles in Canyonlands National Park and the adjacent 
Orange Cliffs unit of Glen Canyon National Recreation Area.
    Comment: The proposed rule violates the Canyonlands General 
Management Plan (GMP), which lists ``Proposed Uses'' for the ``Salt 
Creek Canyons subunit'' as ``Interpretation, Four-wheel Driving, Marked 
Routes and Cross Country Hiking, Four-wheel-drive camping, and 
Backpacking.''
    Response: The National Park Service recognizes that GMPs need to be 
updated periodically, and that changing conditions, use, or other 
circumstances may necessitate changes in management. NPS policies 
require managers to eliminate existing activities ``as soon as 
reasonably possible'' if they find that they cause impairment. The 
policies direct that ``Even in parks with strong traditions and 
established patterns of use and development, managers will be 
responsible for assessing whether resources are threatened with 
impairment, the visitor experience has been degraded, or the park's 
built environment is difficult to sustain * * * An approved GMP may be 
amended or revised, rather than a new plan prepared, if conditions and 
management prescriptions governing most of the area covered by the plan

[[Page 32874]]

remain essentially unchanged from those present when the plan was 
originally approved.'' As stated in the Finding of No Significant 
Impact for the Middle Salt Creek Canyon Access Plan, the proposed 
action amends the Canyonlands GMP and Backcountry Management Plan. 
Within the Salt Creek Canyons subunit, four-wheel driving remains 
available in Salt Creek from Cave Springs to Peekaboo and in Horse 
Canyon, while four-wheel-drive camping remains available at the 
Peekaboo campsite.
    Comment: Implementation of the rule would frustrate Congress' 
intent in establishing Canyonlands National Park.
    Response: The Tenth Circuit Court of Appeals, in SUWA v. NPS, found 
this argument ``without merit,'' noting that ``nothing in the statutory 
language indicates that a jeep trail cannot be closed if the closure is 
deemed necessary for preservation. The legislative history is 
inconclusive at best on the issue, and thus carries little weight.'' 
The rule for Salt Creek is consistent with both the act establishing 
Canyonlands (passed ``* * * in order to preserve an area in the State 
of Utah possessing superlative scenic, scientific, and archeologic 
features for the inspiration, benefit and use of the public'') and the 
NPS Organic Act, as amended, which sets basic direction for the 
national parks and gives the NPS authority to manage accordingly.
    Comment: Wildlife in Salt Creek Canyon would be more disturbed by 
pedestrians than by vehicles.
    Response: The National Park Service disagrees. The impact analysis 
considered various types of impacts (e.g., direct physical injury or 
mortality, stress/startling/flushing, habitat and conditions, avoidance 
of or displacement from key habitat) and species or groups affected 
(listed threatened or endangered species, birds, small and large 
mammals, amphibians and reptiles). While the National Park Service does 
agree that pedestrian activity may cause some species to stress/
startle/flush more than would be the case with motor vehicles, we do 
not agree that wildlife in Salt Creek Canyon would be more disturbed by 
pedestrians than by vehicles. Our analysis concluded that total adverse 
impacts for the range of effects considered on all species would be 
greater from vehicles than from pedestrians.
    Comment: Impacts from hiking use under the proposed rule were not 
analyzed: new trails, associated cryptobiotic crust impacts, water 
quality, wildlife reactions to hikers, cultural resource impacts, etc.
    Response: Most if not all of the trails now present in Salt Creek 
Canyon were there before vehicles were prohibited in 1998. Informal 
``social'' trails do not appear to have increased during the period 
vehicles have been prohibited. Trails around wet areas were used by 
drivers scouting the pools before driving through them as well as by 
hikers. Some trails may vary somewhat as stream location or water level 
changes. Disturbance effects of hikers on wildlife are discussed in 
various places in the EA, including pages 57, 58, 61, 64, 65, and 69. 
Water quality effects from increased backpacking use under the final 
rule are analyzed on pages 101-102 in the EA. Cultural resource impacts 
of the final rule are analyzed on pages 83-84 of the EA.
    Comment: The proposed rule violates the Americans with Disabilities 
Act.
    Response: The Federal government is under the authority of the 
Architectural Barriers Act of 1968 (Pub. L. 90-480) and the 
Rehabilitation Act of 1973 (Pub. L. 93-112). The Americans with 
Disabilities Act (ADA) extended the coverage of these two acts to state 
and local governments and the private sector. The Interior Department 
also uses the ADA Accessibility Guidelines in its construction 
projects. The primary focus of these laws and guidelines is 
architectural accessibility (buildings and facilities).
    The NPS accessibility goal (Director's Order 42) is to ensure the 
highest reasonable level of accessibility, with the accessibility level 
largely determined by the nature of the area and program, and 
consistent with the obligation to conserve park resources and preserve 
the quality of the park experience. The NPS also follows ``universal 
design'' principles. In the outdoor setting, universal design means not 
adding barriers when developing an area that is inherently full of 
barriers, and not creating developments that compromise the integrity 
of the environment in order to make that environment accessible. NPS 
Management Policies for park facilities direct that undeveloped areas 
will not normally be modified, nor will special facilities be provided, 
for the sole purpose of providing access to all segments of the 
population.
    Under the final rule, the Salt Creek Canyon jeep trail below 
Peekaboo will remain open to motor vehicles. Horseback access up Middle 
Salt Creek Canyon will provide alternative access opportunities for 
some individuals unable to hike the portion of the canyon closed to 
motor vehicles. Viewing Angel Arch is not possible from the end of the 
jeep trail; an uphill hike from the end of the trail was always 
necessary to reach a point where the arch can be seen. None of the Salt 
Creek alternatives would meet the ADA Accessibility Guidelines, if they 
applied in this context, because of various characteristics of the 
backcountry setting and the primitive trail leading from the end of the 
jeep trail to Angel Arch. The major trail alterations required to meet 
accessibility guidelines would be inappropriate for the backcountry 
setting. Opportunities to view arches of similar size from in or near a 
vehicle are available elsewhere in the region. Photos and other 
information about Angel Arch are available in the Needles visitor 
center, and in various publications and interpretive media.
    Comment: The impacts of vehicle traffic are no worse than those of 
flooding.
    Response: This issue is analyzed at length in the EA. In short, 
vehicle traffic destabilizes the stream channel and floodplain, and 
magnifies flood damage. Flood damage in Salt Creek, shortly before and 
since the completion of the EA, has demonstrated the vehicle-streambed 
impacts discussed in the EA. The Salt Creek streambed is normally a 
meandering channel. The four-wheel-drive route runs in the streambed 
itself for extended distances; in other places it ``shortcuts'' across 
meander bends. These shortcuts can capture stream flow and become the 
primary or secondary channels. These channels, formed initially or 
altered by vehicle traffic, are shorter, straighter, less vegetated, 
and smoother than the normally-meandering channel. Water flowing down 
them has higher velocity and more erosive force, so that floods cause 
more damage than they would under normal conditions. In 2001, 2002, and 
2003, Salt Creek had floods resulting from estimated two- to ten-year-
recurrence (i.e., fairly commonplace) precipitation events. Each of 
these floods caused substantial damage to parts of the jeep trail still 
traveled by vehicles, resulting from water flowing down the vehicle-
channelized streambed sections, or following the vehicle tracks across 
terraces above the normal streambed. In one section, flood flows 
followed the vehicle tracks across a previously unflooded terrace, 
eroding a gully up to four feet below the previous road level. 
Vegetated stream channel sections not traveled by vehicles received 
little erosion damage from these floods.
    Comment: Only permanent impacts constitute impairment of park 
resources, and vehicle travel in Salt Creek does not cause impairment 
because vegetation returned and the riparian area improved after 
vehicle traffic ceased in 1998.

[[Page 32875]]

    Response: The U.S Court of Appeals for the Tenth Circuit, in SUWA 
v. NPS, noted that `` `significant, permanent impairment' '' may not be 
coterminous with what is prohibited by the [NPS Organic] Act because 
other negative impacts [e.g., less than permanent] may also be 
prohibited.''
    Comment: The NPS gave inadequate consideration to realignment of 
the jeep route, low water crossings or other techniques to allow 
vehicle access.
    Response: The EA analyzed three alternatives for vehicle access. 
One of these alternatives was a realignment of the jeep route in an 
attempt to avoid or reduce impacts to the streambed and riparian area. 
This alternative would have reduced the number of stream crossings from 
over 60, but over 40 crossings would have remained. It would also have 
required 30 to 40 new climbs from the streambed to terraces five to 30 
feet above, many of which would have also required substantial road 
cuts. These terraces are composed of incohesive sand, and would be 
subject to accelerated erosion if destabilized by vehicle traffic and/
or road construction. Because of continued and new disturbance, erosion 
and sedimentation, this alternative was also found to cause impairment 
of park resources.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and has been reviewed 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 may raise novel legal or policy issues. It has been 
the focus of approximately eight years of litigation and controversy 
regarding the environmental impacts associated with motor vehicle use 
on an eight mile section of a trail that runs in and out of a creek bed 
within the Middle Salt Creek Canyon area of Canyonlands National Park. 
The NPS's environmental assessment evaluated three alternatives that 
would allow some degree of continued motor vehicle traffic in Salt 
Creek Canyon, and a fourth alternative that would prohibit motor 
vehicle access year-round. The NPS Organic Act requires that the NPS 
manage park areas ``in such manner and by such means as will leave them 
unimpaired for the enjoyment of future generations.'' The assessment 
concluded that each one of the three alternatives would cause 
impairment to park resources and values because of the impacts to the 
Salt Creek riparian/wetland ecosystem. Therefore, none of the three 
alternatives would be permissible.

Regulatory Flexibility Act

    An analysis of gross receipts and recreation visitor-days (1993-
2000) indicates that Salt Creek commercial use, while fluctuating 
during this period, actually bypassed pre-closure levels. The analysis 
also shows that commercial use of the middle portion of Salt Creek is a 
small percentage of the overall commercial use of the park. The 
economic effects of this rule are local in nature and negligible in 
scope. There are several roads throughout the Park that commercial 
motorized vehicles may continue to use. The Department of the Interior 
therefore certifies that this rule 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.).

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 
trail were made as a direct result of the still-pending litigation 
brought by Southern Utah Wilderness Alliance challenging the permit 
system that Canyonlands instituted for motor vehicles to use this 
trail. Since this lawsuit was originally filed, State and local 
entities have asserted that the trail 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 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 motorized 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 trail, 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'' for certain R.S. 2477 rights-of-way on BLM 
lands within the State of Utah. The Memorandum provides that the State 
and Utah counties will not assert rights-

[[Page 32876]]

of-way under the Road Acknowledgement Process within any National Park 
System unit in Utah, and that ``the State, Utah counties and the 
Department shall work cooperatively to minimize trespass situations on 
roads'' within national parks. Other means for the County or State to 
pursue an R.S. 2477 right-of-way claim, such as a Quiet Title suit, 
remain available and are unaffected by promulgation of the final rule.

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, and a 
submission under the Paperwork Reduction Act 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. 4332, NPS has prepared an 
Environmental Assessment and a Finding of No Significant Impact (FONSI) 
on the proposed use of Salt Creek Road. The Environmental Assessment 
and FONSI may be viewed at 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.


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For the reasons set forth in the proposed rule and in this document, 
the proposed rule amending 36 CFR Part 7 is adopted as a final rule, 
without change, as follows:

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

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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 DC Code 8-137 (1981) and DC Code 40-721 (1981).


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2. Add Sec.  7.44 to read as follows:


Sec.  7.44  Canyonlands National Park.

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

    Dated: May 20, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-13234 Filed 6-10-04; 8:45 am]
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