04-13234. Canyonlands National Park-Salt Creek Canyon

AGENCY:

National Park Service, Interior.

ACTION:

Final rule.

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: [phone].

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 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 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 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.

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-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

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

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).

2. Add § 7.44 to read as follows:

§ 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.