May 1, 2003
Panamint City was founded in the 1880’s by miners and outlaws who had discovered silver in the mountains surrounding the city. During the silver boom of Panamint City over 275 acres of land was patented by miners. The town grew to a population of 3000 during it’s boom. In 1876 a flash flood destroyed the town and carried away many of the residents. The town was washed away again in 1901. The population of Panamint City began to dwindle, and over the next 80 years many people would work the silver mines around Panamint City.
In 1984 a tremendous flash flood roared through Surprise Canyon and once again destroyed the paved road leading up to Panamint City. The flood caused so much damage that the road became impassable to vehicles. Of course, anyone who knows the history of the old ghost town of Panamint City would have been able to predict that the road would be destroyed by flash flood.
In 1989, five years after the flash flood that destroyed the road, a group of volunteers began work to reopen the road to vehicles. The road into Panamint City has become a world renowned OHV trail. Each year groups from Japan to Germany make the trek up to Panamint City. The road has also been featured in many print and video publications across the United States.
The California Desert Protection Act of 1994 created, among other things, the Surprise Canyon Wilderness and Death Valley National Park. The Surprise Canyon Wilderness is bordered by Death Valley National Park on the east and is managed by the BLM. In creating Surprise Canyon Wilderness and Death Valley National Park, Congress preserved for future generations the extraordinary values of this land, and they also preserved the vehicle route up Surprise Canyon to the private property holdings in the vicinity of Panamint City
In 2000 the Center for Biological Diversity filed a lawsuit against the BLM. As a result, in May 2001, the BLM agreed to perform an emergency closure on the road up to Panamint City and perform an EIS. The closure was the result of an agreement between the BLM and CBD, and did not involve any public comment.
Subsequent to this closure there is a movement to undo the congressional preservation of the route into Panamint City. The movement is to designate the creek that flows down the Surprise Canyon as a Wild and Scenic River.
As a member of the OHV community, landowner and United States citizen, I offer the following preliminary comments on the Surprise Canyon Wild and Scenic River Eligibility Report as found in appendix T in the Northern and Eastern Mojave Desert Management Plan.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek fails mention the RS2477 right of way that exists.
RS 2477 is a very short law, consisting of only one sentence. It states, in its entirety, that "the right of way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted." That right-of-way is a legitimate property right, and, consequently, carries with it a bundle of associated rights, including the right to maintain the roads and upgrade them under certain circumstances. The road into Panamint City was established in the 1870’s and has been used by the public for over 130 years. The BLM recognizes the route as P71. The road has a state id of 5033 and is part of the Inyo County road system. Inyo County has a history of maintaining the road. Inyo County has adopted a resolution that asserts rs2477 claims within the entire county. The wild and scenic river report for Surprise Canyon Creek fails to mention the valid and existing RS2477 rights within the study area.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek fails to follow the National Wild and Scenic Rivers Guidelines as published in the Federal Register, Volume 7, Number 173 (September 7, 1982), for public lands managed by the Department of Interior.
The National Wild and Scenic River Guidelines provide that “the current status of land ownership and use in the area” be included in the report. The eligibility report for Surprise Canyon Creek fails to mention that a road exists in the canyon and is used to access private land inside Death Valley National Park. The road in Surprise Canyon is a corridor through wilderness, and provides the only means of vehicle access for private land owners. The failure to mention the current status of all affected land ownership in the area seriously undermines the guidance set forth in the National Wild and Scenic River Guidelines.
The National Wild and Scenic River Guidelines provide that “the reasonably foreseeable potential uses of the land and water which would be enhanced, foreclosed or curtailed if the area were included in the national wild and scenic rivers system” be included in the report. The report makes no mention of the road that exists in Surprise Canyon, the mining activity, the private land or the OHV opportunities. The potential uses which would be enhanced, foreclosed or curtailed cannot be fully addressed, as required by the National Wild and Scenic River Guidelines, because the BLM fails to mention all of the current uses in the area.
The National Wild and Scenic River Guidelines definition of a scenic river area states that “the rivers segment’s shorelines and immediate environment should not show substantial evidence of human activity.” The BLM report finds that four miles of the Surprise Canyon Creek are eligible for scenic designation. The BLM report fails to mention that substantial human activity has created a road, designated by the BLM as route P71, which has existed since the 1870’s. The road runs the length of the wild and scenic river study area, and crosses the creek in various places. The failure of the report to mention the road, allows the BLM to classify the creek as scenic and undermines the credibility of the report.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek fails to address the Nationwide Rivers Inventory.
The Nationwide Rivers Inventory is a listing of more than 3,400 free-flowing river segments in the United States that are believed to possess one or more "outstandingly remarkable" natural or cultural values. The Nationwide Rivers Inventory is headed by the National Park Service and is a source for federal agencies involved with stream-related projects.
Surprise Canyon Creek is not listed in the Nationwide Rivers Inventory as having any outstanding remarkable values. In fact, none of the 11 perennial streams in Panamint Valley are listed in the Nationwide Rivers Inventory. The eligibility report fails to include this information from the Nationwide Rivers Inventory.
The file mile segment would not substantially benefit the National Wide and Scenic Rivers System as a whole. The five mile segment would be one of the smallest designations in the 11, 292 mile long National Wild and Scenic Rivers System.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek fails to address the requirements of the California Desert conservation Area Plan of 1980 (as amended) (CDCA Plan)
The CDCA Plan specifically provides that a goal of the Motorized Vehicle Access Element is to “Provide for constrained motorized vehicle access in a manner that balances the needs of all desert users, private landowners and other public agencies.” The proposed Wild and Scenic River status for Surprise Canyon Creek lists 1 mile of the creek as recreational and 4 miles of the Surprise Canyon Creek as scenic. The eligibility report fails to mention that Surprise Canyon Creek has contained a roadbed for the past 130 years, and this road is the only route into private land holdings within Death Valley National Park. As the report fails to mention the need for land owners to access their property it is unclear how any determination of balancing of needs can be made.
The California Desert Protection Act of 1994 further restricted motorized and non-motorized recreational activities to less then 3 million acres of the 12 million acres of public land in the desert. Nothing in the report addresses the cumulative effects of closing Surprise Canyon Creek on the entire CDCA Plan. 8 of the 11 canyons in the Panamint Valley are protected via wilderness designation and by further reducing the areas in the plan available for motorized vehicular access, from the original adoption of the plan in 1980, it is unclear how any determination of the balancing of needs can be made.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek is inconsistent with the Northern and Eastern Mojave Plan (NEMO).
Section 4.11.1, of the Northern and Eastern Mojave Plan (NEMO), states that “Surprise Canyon Creek and the Amargosa River receive relatively high levels of recreational use outside of OHV areas.” The eligibility report does not mention any type of OHV use within the eligible river areas. The report is an appendix to the NEMO document, but fails to encompass the findings within the NEMO document itself.
Section 4.11.2, of the Northern and Eastern Mojave Plan (NEMO), states that “Current levels of use have been within the generally acceptable range of fallback standards on a landscape scale, based on overall invertebrate and riparian vegetation health in the systems.” The eligibility report does not mention any type of OHV use within the eligible river areas. The report is an appendix to the NEMO document, but fails to encompass the findings within the NEMO document itself.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek fails to mention the valid Memorandum of Understanding between the California Association of 4-Wheel Drive Clubs, Inc. and the BLM.
In 1995 the BLM entered into an agreement with the California Association of 4-Wheel Drive Clubs, Inc. The agreement states “The route through Surprise Canyon in the Panamint Mountains is an extremely challenging and primitive 4-wheel drive route.” The agreement between the BLM and Cal4wheel allowed volunteers to perform work on the route in order “to keep this route accessible to outdoor recreation visitors.” The eligibility report lists recreation as one of the “outstanding remarkable values”. However, under the heading of recreation the report fails to mention the recreational value of the 4-wheel drive route. The existence of a route would preclude the creek from designation, so it’s omission allows the BLM to reach a predetermined outcome.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek fails to meet the requirements of The Federal Land Policy and Management Act (FLPMA)
FLPMA requires that BLM decisions be guided by the principles of “multiple use” and employ a “systematic, interdisciplinary approach to achieve integrated consideration of physical, biological, economic and other sciences.”(43 U.S.C.Sec 1712(c)). As formulated, the eligibility report is based on assumptions that Surprise Canyon Creek has 6 outstanding remarkable values that warrant a Wild and Scenic River designation. The BLM staff failed to adhere to the guidelines established by FLPMA when designating the 6 outstanding remarkable values.
For example, the outstanding remarkable values of recreation listed by the BLM made no mention of the outstanding OHV opportunities. The numbers for stream flow, “stream flow is often 100-150 cubic feet per minute”, would have been occurring during a flash flood and the document does not state the average flow at all. Further, the eligibility report does not mention the road that exists in Surprise Canyon. The outstanding remarkable values appear to have been based on a one page list of 6 resource attributes. The process the BLM used has resulted in a document that is inaccurate, difficult to understand, completely lacking in scientific credibility, and does not represent an interdisciplinary approach as required by FLPMA.
An interdisciplinary approach may have found Surprise Canyon Creek to be ineligible, based on the existence of a road and the use of that road by the OHV community. An interdisciplinary approach would have also considered “multiple use” and the effects of closing Surprise Canyon to vehicle access, when 8 of the 11 canyons in Panamint Valley are protected by wilderness designation. Any BLM decision based on such inaccurate information should be questioned for credibility.
The California Desert Protection Act of 1994 requires that “The Secretary is required, ten years after the date of enactment of this Act, to report to Congress on current and planned exploration, development or mining activities on, and suitability for future wilderness designation of, the lands as generally depicted on maps entitled "Surprise Canyon Wilderness--Proposed", "Middle Park Canyon Wilderness--Proposed", and "Death Valley National Park Boundary and Wilderness 15", dated September 1991 and a map entitled "Manly Peak Wilderness--Proposed", dated October 1991.” The proposed wilderness and wild and scenic river designations would close all canyons in the Panamint Valley area to OHV use. The BLM must be guided by the principles of “multiple use”.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek fails to meet the requirements for the Environmental Impact Statement (EIS) required by National Environmental Policy Act (NEPA) for adoption of the Northern and Eastern Mojave Plan.
NEPA requires that the EIS “shall serve as the means of assessing the environmental impact of proposed agency actions, rather then justifying decisions already made.”(40 CFR Sec 1502.2(g)). It further provides that the alternatives presented be based on a credible scientific and analytical methodology. The eligibility report appears to have been developed from values identified by the BLM in the completed California Desert Conservation Area Plan (CDCA) and during the development of the Northern and Eastern Mojave Desert Plan (NEMO). The values identified by the BLM do not include the outstanding OHV values in Surprise Canyon. The assumption that Surprise Canyon has no OHV values is misguided and allows the BLM to not address the effects of a Wild and Scenic River designation on the OHV community. This rationalization is expressly contrary to NEPA requirements that encourage an objective impartial assessment of the effects of federal actions.
The proposed Wild and Scenic River Eligibility Report for Surprise Canyon Creek is inconsistent with the California Desert Protection Act of 1994 (CDPA).
The Panamint Range has six perennial streams, Middle Park, Pleasant, Happy, Surprise, Hall and Jail Canyons. The Argus Range on the West side of Panamint Valley has five perennial streams, Water, Knight, Revenue, Snow and Thompson Canyon. Of the 11 perennial streams that exist in Panamint Valley 8 are in wilderness created by the CDPA of 1994. These 8 perennial streams’ free-flowing character, water quality and outstanding remarkable values will continue to be fully preserved and protected because of wilderness designation.
The California Desert Protection Act of 1994 created a corridor through the Surprise Canyon Wilderness and into Death Valley National Park. The congressionally designated corridor, which encompasses a road known as route P71, is the only vehicular route into the private land inside Death Valley National Park. The BLM has defined this corridor to be 30 feet from the centerline of the road that runs up the canyon. The wild and scenic river report mentions the corridor, but fails to mention its vehicular use to access Panamint City and private property.
The California Desert Protection Act of 1994 preserved 29,180 acres in the Surprise Canyon wilderness and created a vehicular corridor into Panamint city and the private property in the vicinity of Panamint City. The BLM, by designating the corridor as part of the Wild and Scenic Rivers System, would be setting a dangerous precedent. The BLM would manage the wild and scenic study area as though it were designated, until such time as Congress approved or disapproved of the designation. The BLM is circumventing Congress’s power to create wilderness and corridors through wilderness, by assigning wild and scenic river status to this congressionally created corridor, which gives them the power to manage the corridor as though it were designated.
The California Desert Protection Act of 1994 requires that “The Secretary is required, ten years after the date of enactment of this Act, to report to Congress on current and planned exploration, development or mining activities on, and suitability for future wilderness designation of, the lands as generally depicted on maps entitled "Surprise Canyon Wilderness--Proposed", "Middle Park Canyon Wilderness--Proposed", and "Death Valley National Park Boundary and Wilderness 15", dated September 1991 and a map entitled "Manly Peak Wilderness--Proposed", dated October 1991.” The suitability study has yet to have been performed. If the wild and scenic designation and the proposed wilderness areas are taken into consideration, the entire Panamint Valley would be closed to OHV use. The principles of “multiple use”, as defined the Federal Land Management Policy Act (FLPMA), could not possibly be adhered to in a situation where all OHV activity is excluded.
Conclusion
The current Surprise Canyon Wild and Scenic River Eligibility Report is inaccurate, difficult to understand and completely lacking in scientific credibility. Further, this incomplete and inaccurate report allows the BLM to reach a predetermined outcome, which is in direct violation of the National Environmental Policy Act (NEPA). Of great concern, is the attempt, by the BLM to close a congressionally created vehicle corridor through a backdoor Wild and Scenic River Designation. As a member of the OHV community I will not accept this report as sufficiently accurate to move forward with a Wild and Scenic River suitability study. Wild and Scenic River eligibility should be considered only after the most diligent and complete review to substantiate that there are truly unique outstanding remarkable values that can only be protected through Wild and Scenic River designation. Based on the complete lack of a coherent and accurate inventory of uses in Surprise Canyon, the BLM should step back and reconsider the Surprise Canyon Wild and Scenic River Eligibility Report.