Craig D. Obey
Vice President for Government Affairs
National Parks Conservation Association
the Little San Bernardino Mountains Right-of-Way Act
Submitted to the
Subcommittee on National Parks, Recreation and Public Lands
Committee on Resources
U.S. House of Representatives
April 19, 2002
Mr. Chairman and members of the Committee, I am Craig D. Obey, Vice President for Government Affairs at the National Parks Conservation Association (NPCA). NPCA is America's only private, nonprofit advocacy organization dedicated solely to protecting, preserving, and enhancing the National Park System. NPCA was founded in 1919 and today has approximately 400,000 members who care deeply about the well being of our national parks.
We wish to express our strong opposition to H.R. 3718, the Little San Bernardino Mountains Right-of-Way Act. H.R. 3718 would establish a permanent right-of-way on a road that was illegally bulldozed into wilderness within Joshua Tree National Park during the 1980s. It would, for the first time since enactment of the Wilderness Act in 1964, allow roads and rights-of-way in federally designated wilderness, sending a powerful and counterproductive message that breaking environmental laws is permissible so long as sufficient time elapses before one gets caught.
President Franklin D. Roosevelt proclaimed Joshua Tree a national monument on August 10, 1936, to preserve its extraordinary natural features and cultural artifacts. The extraordinary value of this unique desert landscape was again recognized in 1976, when much of the monument was designated as wilderness, and once more in 1994, when Congress added 234,000 acres to the monument, designated an additional 163,000 acres as wilderness, and redesignated Joshua Tree as a national park.
In this remarkable place, a World Biosphere Reserve since 1984, two stunning desert ecosystems join together. The Colorado Desert, which sits below 910 meters, occupies the eastern half of the park, and is dominated by creosotebush and sprinkled with small stands of spidery ocotillo and jumping cholla cactus. At the park's slightly higher elevations in the West, the Mojave Desert supports unique habitat that includes spectacular stands of Joshua trees.
Despite the harshness of these desert ecosystems, they possess surprising variety and complexity and are extremely fragile. The arid lands of Joshua Tree National Park expose visitors to beautiful fan-palm oases that abound with wildlife and are all the more striking because they are surrounded by such a harsh environment. A mosaic of rugged mountains, twisted rock, granite monoliths, arroyos, playas, alluvial fans, bajadas, pediments, desert varnish, granites, aplite, and gneiss contributes to the beauty and complexity of this remarkable place.
In the early 1980s, an illegal road was bulldozed into this fragile land, apparently by the owners of KPLM radio. That road was cut through 0.7 miles of wilderness to reach private land that may have been accessed legally from the east, south or west through either other private lands or unreserved, non-wilderness BLM lands. The sections of park land through which KPLM appears to have cut the road have been part of the park since 1936 (section 26) and 1950 (section 35).
As we understand it, there is a dispute about exactly when the road was built and whether some sort of trail may have existed prior to that time. The record shows, however, that in 1997 Mr. Todd Marker, General Manager of RM Broadcasting, told then-Assistant Joshua Tree Superintendent Frank Buono that KPLM had built and paid for the road across the park because they needed access to KPLM's tower. We also know that the wilderness study conducted in the area prior to the 1976 wilderness designation indicated the area was roadless. In addition, we know that KPLM acknowledged in 1987 that the road was in trespass. Finally, it is indisputable that, whether or not a road existed in 1987, action KPLM took at that time or before, either to construct or widen the road, was an illegal trespass.
When the National Park Service finally discovered the road in 1987, they informed KPLM that the road was in trespass. Soon thereafter, the park agreed to allow KPLM to continue using the road, provided that the radio station would conduct public service announcements on behalf of the park. Despite the fact that such an arrangement might appear somewhat reasonable, the park superintendent had no authority to make it. The park was neither obligated nor lawfully able to permit KPLM to continue to use the road.
KPLM is not at fault for the National Park Service's mistake and fairly relied upon that agreement for many years. But that does not change the fact that KPLM initially built their illegal road across a national park boundary that had existed for many decades. They did not build their road because of guarantees or representations made by the National Park Service. Rather, they ignored a national park boundary and scarred fragile wilderness for their own convenience and, after they were caught, reached a deal that allowed them to continue to violate park wilderness. They were living on borrowed time.
We might be more inclined to support some form of relief for KPLM if they had simply made a mistake. After all, the National Park Service shoulders the blame for allowing them unfettered use of the road for approximately a decade. We might also be willing to listen to the plight of a new owner or manager who had been duped and manipulated in a land transaction that involved the road. But KPLM neither appears to be asserting that prior station owners misled it, nor has demonstrated respect for the law since the National Park Service realized its mistake and began to change its position. The fact is that KPLM built an illegal road over a national park boundary without permission and without the knowledge or approval of the National Park Service. And despite apparent changes in legal control over the radio station since the road was built, many of the same people appear to have been involved throughout.
In 1997, KPLM applied to Riverside County for a permit to construct two 185-foot towers and an accessory building on the private land reached by the road, in addition to the single tower that was already there. On January 6, 1998, the county granted the permit with the condition that KPLM must obtain a clearance letter from the National Park Service verifying that access through the national park is lawful. Two months later, the Field Solicitor of the Department of the Interior wrote to Riverside County explaining that access was only authorized by horse or on foot.
Since that time, for more than four years, KPLM has continued to use motorized vehicles to violate park wilderness at Joshua Tree. In addition, they appear to have completely ignored the Interior Department's edict and used the road for access to construct new towers anyway. Admittedly, it is possible they used a helicopter to access the land and construct the new towers, in which case they may have done nothing wrong. But KPLM has not asserted this to be the case, and evidence shows they are still using the road.
We believe this issue is not about access to radio broadcasting towers. Rather, we believe this debate is about respect for our laws. In our republic, we do not have the luxury to follow laws we like and ignore those we dislike. The inconvenience caused KPLM by a national park boundary and our national law on wilderness protection does not give them the right to ignore the law. KPLM was wrong when they bulldozed their road in the first place, and they were wrong when they ignored the law and used that road to build two new towers on private property that is bounded on three sides by land that is outside the park and is not designated wilderness.
The U.S. Congress certainly should not countenance and reward such behavior. If Congress grants KPLM its right-of-way, it will be telling others who wish to violate our nation's laws that it's permissible to do so, provided they create a situation that enables them to portray later compliance with the law as costly and an undue hardship. We respectfully submit that this is not a message Congress should be sending.
Despite what we believe to be reprehensible behavior on the part of KPLM during the period before and after the Park Service allowed them to use the road, we acknowledge that KPLM may have spent money to maintain the road between 1987 and 1997, at which time the National Park Service wrongly allowed them to continue using it. To the extent that KPLM can affirmatively demonstrate they incurred expenses to improve the road during that time, we would begrudgingly support providing them with equivalent federal funds that they might use to pay for helicopter access to the site if they have a pressing need to move heavy equipment or materials, since KPLM presumably would not have spent funds to maintain the road if the Park Service had done its job properly in 1987.
We understand that the inability to drive motorized vehicles on this road will be inconvenient for KPLM. However, we submit that KPLM has already irreparably harmed the wilderness within Joshua Tree National Park through its own choice and that continued motorized access should not be its reward. This road did not magically appear in national park wilderness. Someone built it, and did so illegally. We hope that Congress will reject this unwarranted legislation and refuse to reward people who willfully broke the law of our land and have repeatedly trampled national park wilderness that Congress and at least three presidents have deemed worthy of protecting for the enjoyment of all Americans.