By Todd Devlin
Prairie County Commissioner
Regardless of your particular stance on Scenic View Road, it is imperative to closely examine the actions, and at times inactions, taken by the Bureau of Land Management while handling this issue.
First of all, the county has a minimum of $820,000 invested in the road. This figure is based on the lowest emergency rates for FEMA on a grader, the lowest county wage in the United States, and construction cost. It doesn’t include economic impacts, maintenance of machinery, travel, administration, or employer contributions. When considering those factors and converting them to real dollars today with no net gain, the total comes to $820,000.
The BLM failed to comply with the agreement they made with Prairie County in 1965. According to their own regulations and the United States Supreme Court ruling (Public Lands Council vs. Babbit) all permanent range improvements done before 1984 and after 1995 are title of the United States and fair compensation is to be given to those with invested interest if range improvements are abandoned.
Cooperative Range Improvements are pretty much on every allotment and BLM community grazing pasture. Their regulation is pretty clear. The BLM can abandon, but has to have input from invested interests. That is fair enough. They can abandon, but must fairly compensate those with invested interest. That is fair enough.
What the BLM did when canceling the cooperative agreement on the Scenic View Road range improvement was totally against regulation. As their own fact sheet on Cooperative Range Improvements states: “Who decides how and when a project is built or if an existing project needs to be removed? The BLM coordinates with operators, state agencies, and the interested public in making that determination.”
On ownership of range improvements, the United States Supreme Court ruling states: “In short, we find nothing in the statute that denies the Secretary authority reasonably to decide when or whether to grant title to those who make improvements. And any such person remains free to negotiate the terms upon which he will make those improvements irrespective of where title formally lies, including how he might be compensated in the future for the work he had done, either by the Government directly or by those to whom the Government later grants a permit. Cf. 43 U. S. C. § 1752(g) (This requires the United States to pay compensation to a permittee for his “interest”). This was very important because Babbit wanted control of the improvements to do as he wished without compensation or input. What we have today coming from the BLM is pure “Super Babbit” mentality.
And finally, it states in the 1965 agreement signed by all three county commissioners and the district manager of the BLM that the BLM owns title to the improvement with legal description of the entire road. It also states that the county is compensated if it is abandoned.
So you have regulation stating it, statute stating it, the agreement stating it, and the Supreme Court. You can’t ask for much more than that.
The Federal Policy Land Management Act of 1976 repeatedly states to cooperate and coordinate with local governments and their land use plans. Multiple use of public lands and this specific area were important enough to Prairie County that the Land Use Planning Board stated in the Growth Policy / Land Use Plan, adopted in 2006, that: “It is imperative for Prairie County to protect the multiple use concepts on public lands, as it significantly impacts the county’s economy.” And again it states: “The scenic badlands north of Terry and the Yellowstone River are visible from the interstate. The amount of open land is an advantage, with no urban sprawl or industrial sites to mar the landscape. Scenic View is one of Prairie County’s most popular destinations, noted in many different travel resources. Another scenic destination is Calypso Trail. The Terry Badlands, in general, are also famed for their scenic value.”
Where Prairie County can rightfully protect multiple uses of public lands, we must. If “multiple uses” go, the first use deleted will be cattle and sheep on public lands. And as most know, with our checkerboard pattern of ownership and with half the land out of agricultural production ... well, just put up a fence, everybody leave, and lock the gate. We might not be able to put up a gate because of the bison corridor from Alberta to Nebraska. See the Northern Plains Conservation Network Web site at http://www.npcn.net/index.php/pages/terry-badlands/
. Is this picture familiar?
The Prairie County Board of Commission was told time and time again by advisors that somewhere a contract exists that is signed between the BLM and Prairie County on Scenic View Road. We now know there is and we will protect our invested tax dollars and constituents as best we know how.
This is way more than just a road issue. The study done by the BLM for wilderness criteria stated that a wilderness criterion stops on the northeast due to a county road. Yup, the BLM even called it a county road.
Then would we have wilderness criteria expanded if it had not been for Scenic View Road? At the BLM solicitors meeting we asked if the county were successful in District Court would they guarantee the county easement across federal land? The answer was no they would not guarantee that.
Whatever side you are leaning, ask yourself this question: With this documentation, regulation, statute, and court rulings staring the BLM right in the face and a multiple use directive in federal statute, why didn’t the BLM come to bat on a road to a Wilderness Study Area that they claimed title to in 1965?
Published Nov. 3, 2010
Scenic View Road