Colorado National Monument v. "Colorado Canyons National Park": Glade Park Access Fight, Round 2?

By John Wilkenson

I am the John Wilkenson of the 1986 U.S. District Court decision (the Honorable Judge Richard P. Matsch presiding) of John R. Wilkenson, et al., v. Dept. of Interior of the United States, et al., 634 FS 1265. I was partly motivated to write this blog article by the story titled "Park hits brakes on propane haul ban" by Daily Sentinel reporter Gary Harmon. The other part of my motivation is my concern that too many local citizens don't fully understand the duplicitous nature of the bureaucratic beast with which they are dealing. Too many "normal" Americans are too gullible and naive when it comes to dealing with these types of "Good Old Boy" (GOB) political1 situations.

To get a realistic idea of the duplicitous -- (yes, I used that word twice on purpose because it is accurate) -- nature of the bureaucratic beast we are dealing with, it's very helpful to watch the video documentaries I have embedded both in this blog and in an earlier blog titled, "Arrogant government scumbaggery tries to shut down venerable oyster farm — UNacceptable, INtolerable!".

If the language in this blog seems blunt, perhaps even "radical", maybe it's because I have been radicalized by government2 lying and general all-around bad-faith manipulations. Moreover, I consider myself a serious environmentalist who is studying permaculture and sustainable agricultural methods. So the NPS doesn't "care" one bit more about the environment, the CNM, children, the future, God, mom, and/or apple pie than I or any of the rest of us do.

Let's start with political language.

In his essay "Politics and the English Language", George Orwell said, "In our time, political speech and writing are largely the defense of the indefensible...The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. In our age there is no such thing as 'keeping out of politics.' All issues are political issues, and politics itself is a mass of lies, evasions, folly, hatred, and schizophrenia." Gee, I guess I'm not history's only "radical".

Now let's look at some of the political language in the Sentinel's story.

Harmon quoted Mesa County Commissioner, John Justman, as saying in effect, " If we have a cooperating agreement with the monument, I'm waiting for the Park Service to start cooperating." Mark Udall allegedly "had doubts about the origins of the ban." Scott Tipton said, "It's deeply concerning that local government officials and Glade Park residents were not consulted in advance of this far-reaching, and legally questionable, decision..." Mark Udall is quoted as saying that Glade Park residents "deserve answers from Colorado National Monument Superintendent Lisa Eckert and the National Park Service on this decision."

What a crock of wannabe-clever, politically-careful, preserve-your-options crap! Mealy-mouthed political phrases such as "deeply concerning", "doubts", "unanswered questions" and "legally questionable" make me want to barf (aka "engage in an unexpected involuntary protein spill"). Exactly what is a "cooperating agreement"? Nor do we "need answers" about how to do something illegal.

For the benefit of the uninitiated or "information-challenged", let me demonstrate how to communicate clearly and forthrightly.

The law is what it is. By law, the law is supposed to be clear, so the public has been given fair notice of (aka "due process"), and understands, what specific acts they are commanded either to do or refrain from doing. The law is either adequate to achieve its (presumably constitutional arguendo) expressed purposes (aka "legislative intent") or it is not. If the law is adequate, then it must be obeyed. If the law is inadequate, then BASED ON FACTS, LOGIC AND/OR SCIENTIFIC DATA it should be subjected to fair and open discussion and changed in the wisest way possible. But whatever the law is, ignorance of it, even on the part of politicians and bureaucrats, is no excuse.

In the case of the so-called "Glade Park access controversy", the ON POINT law of the case is Judge Matsch's decision in John R. Wilkenson, et al., v. Dept. of Interior of the United States, et al., 634 FS 1265. Any person who is too intellectually lazy to bother reading at least page 143 of the linked PDF file doesn't belong in a serious intellectually honest conversation about Glade Park access over the road segment in question.

In a nutshell, the decision holds that 1) there is a public right of way over the road segment "for the limited purpose of continuous travel between the Monument road and the DS Road (aka between Glade Park and the outside world)...The charging of a fee for such non-recreational use is an unlawful interference with that property right of public use and is, additionally, contrary to the statutory limitations on the authority of the National Park Service to charge entrance fees or other recreational use fees under 16 U.S.C. § 460l-6a(g). Moreover, the charging of an entrance fee for this use is a violation of the regulations at 36 C.F.R. § 71.13(d)6," and 2) that right of access is not limited to residents of Glade Park. It includes all of the public, including commercial vehicles...the absolute prohibition of all commercial traffic in the disputed area is unauthorized by the existing regulation and is contrary to the public's right of way."

Judge Matsch also said, "Size and weight restrictions would appear to be appropriate matters for regulation, and control over hazardous substance transportation is necessary. These are matters which are not now before the court in the present litigation. The holding now is that the absolute prohibition of all commercial traffic in the disputed area is unauthorized by the existing regulation and is contrary to the public's right of way."

So, if the National Park Service (NPS) and or Colorado National Monument (CNM) thought they had new scientific data which would justify a policy change, they could go into court and litigate the issue. But that's not what is going on here. What's going on is a 100% pure unadulterated authoritarian political manipulation.

If that were not the case, why have fuels such as propane, diesel and gasoline been allowed for decades to travel the existing public right of way up the East Hill? What scientific data shows that for decades it was OK, but now must be suddenly and arbitrarily forbidden? And what about the trucks which deliver the aforementioned fuels to the CNM? How are they any less dangerous than the trucks which deliver the same products to Glade Park residents?

In the case of the Drake's Bay Oyster Company which the NPS is trying to shut down so Ken Salazar can have the "legacy" of establishing the first marine wilderness area in the United States, NPS bureaucrats recruited environmental extremist organizations to organize an intensive writing campaign against the Lunny family, and lobbied local politicians by calling oyster farm owner Kevin Lunny an environmental criminal. In "Glade Park Access, Round 1" I was initially cast as a scofflaw and faced three years in prison if convicted of the false charges4 against me when, in fact, it was the NPS manipulators who were engaging in the lawless behavior.

No, folks, what we have here is no intellectually honest rationally legitimate threat of real environmental harm made evident by honestly gathered and procedurally valid scientific data. What we have here is not the NPS' necessary good-faith stewardship over an important natural resource. What we have here is a wannabe-clever parroting of the language of statutes and regulations. What we have here is an unspoken agenda, a mere subjective religious-dogma-like belief on the the part of an individual or group somewhere in Big Bureaucracy fraudulently masquerading as POTENTIAL environmental harm where there isn't any -- and hasn't been for decades.

What we have here is the simple fact that Judge Matsch's decision has always been a burr under the saddle of the NPS. Logic dictates that the reason said decision was not appealed was because the NPS knew that in an unprecedented and complex situation like this one, the 10th Circuit Court of Appeals (CCApp) would most likely have upheld Judge Matsch's decision as the trier of fact since he made no appealable mistakes in the law. The NPS knew that the 10th CCApp knew that, as the trier of fact, Judge Matsch was in a much better position than an appeals court to get the facts right. That's Law 101, and because Wilkenson was neither appealed nor relitigated, it is STILL the controlling law of the case.

So how, then, does a clever bureaucrat go about removing this burr from under his/her saddle? Simple: pass legislation turning CNM into a national park5. If that should happen, I guarantee you the explicit language of Judge Matsch's decision will NOT be included as part of the legislation. The inherently evil and inevitably corrupting world of politics doesn't work that way.

For those low informaton (LI) individuals naive and gullible enough to believe the NPS always operates in good faith because they are the ones who wear the white hats, I would remind you that in the fascinating (and highly instructive) case of the Drake's Bay Oyster Company, Ken Salazar, Jonathan Jarvis and the environmental zealots were against the oyster farm, while Diane Feinstein and Pete McCloskey were in favor of the oyster farm. And at the request of the NPS, the National Academy of Sciences (NAS) had done two studies (at public expense) finding that there was no evidence showing that the oysters were harming the environment. To the contrary, the oysters were actually beneficial to the Drakes Bay estuary.

With the usual politician's faux-benign CYA language, Feinstein agreed to new legislation PROVIDED that the language of the NAS studies be included as part of the statutory language grandfathering in the oyster farm. Didn't happen. The NAS reports were dismissed out of hand by Salazar et al – allegedly for failing to define the word “major" as in "major harm”. So much for the naive LI notion that Judge Matsch's interpretation of Glade Park access would be written into whatever language might turn Colorado National Monument into Colorado Canyons National Park.

In the case of the Drake's Bay Oyster Company, in accusing the NPS of blatant duplicity, world-class environmental scientist, Dr. Corey S. Goodman, said:

“I grew up in a scientific culture, in a culture in bio-medical research where we're quite used to having to defend science. And what I mean by that is we go constantly to scientific meetings where people who think you made a mistake or think you've said or done something wrong are always asking you tough questions. So I grew up in a culture where we debate science all the time. So it's taken me aback a little that we can't get that debate in the community, and that simply asking questions about the science – like saying 'I disagree with it' -- gets some pretty strong statements made as if there were something wrong with doing that. Excuse me, the scientific community is one where we debate and we probe, and we try to actually shoot down dogma. In fact I was taught as I was growing up as a scientist that in science you never actually prove something to be correct. You make hypotheses and models and what you do in science is you disprove. You're always looking to ask what's wrong? How can I move this forward?”

“I've never in my career seen something like this. What they did is they tried to tilt the scales. And the way they tilted the scales is they suddenly came out and they claimed that Kevin Lunny is an environmental criminal.”

“At every single point, the Park Service (NPS) had exaggerated what was going on, and in fact had misdescribed (what was going on). They said that the oyster feces were basically drowning the eel grass, the fish, and were destroying the habitat."

“When I got that data two weeks later, it was clear that there actually had been an 80% decline (in harbor seal numbers) at a location. That was a location called sand bar A. That location was in the wilderness area. That location was far, far away from the oysters. That location – it's a long story – but the sand bar had become connected to the mainland, and both hikers (i.e. one source of problems, human beings) as well as coyotes and other predators were getting across and chasing them away. Sure enough, there had been exactly the 80% decline IN THE WILDERNESS AREA. Did I mention: in the wilderness area? That's where humans were disturbing harbor seals, and there was no such decline anywhere near the oyster farm. Now, if you saw one mistake, you'd say, well OK, you might say, sloppy use of data. But the fact is, now – and I've only given you the tip of the iceberg – we're seeing mistake after mistake after mistake; misuse of data after misuse of data after misuse of data. And it's always with the same sign. Finding environmental harm where none exists. That's not science. That's a belief. That's an agenda. And what do I call that? In the world I come from, it's called misconduct. That's called scientific misconduct.”

The fact is, Lisa Eckert's arbitrary and capricious agenda-driven ban is prima facie ILLEGAL according to the existing law (Wilkenson and 36 C.F.R. 71.13(b),(c) and (d)) of the case. Contrary to the implications of the Sentinel story, I have no "concerns" about the "process" of how Eckert goes about doing an illegal thing. My concern is that she either OBEY THE EXISTING LAW of the case or go about trying to get it changed in a fair and square, transparent and accountable legal manner. That's the American way. That's the constitutionally valid way.

Nor are any more "feel good" community meetings necessary so everybody has a chance to work their wannabe-clever little political manipulations about what is the best way to go about doing an illegal thing. This situation isn't rocket science, and propane isn't deadly radioactive nuclear waste. All that is necessary from a pragmatic point of view is that the existing law be obeyed and local politicians' feet be held to the fire.

The transportation of hazardous materials over the public roads is already governed by Title 49 of the U.S. Code. The propane trucks are most likely already in compliance with HAZMAT rules or they couldn't travel the public roads. The "hazardous materials" argument is a self-evident straw man. If existing law were being enforced, the NPS would have to give permits to the propane trucks to travel the public right of way in question anyway.

Logic would seem to dictate that environmental protection from "hazardous materials" is not what Eckert actually wants, because, in that case, the East entrance kiosk would have to be "manned" (or "womanned" as the case may be) 24x7 to check the permits of commercial traffic. That would deprive Eckert of the flexibility to control the CNM budget by leaving the entrance kiosk unmanned quite a bit of the time (as is the present situation). There would be no CNM personnel present to check commercial permits.

On a different but directly related subject, from a purely philosophical point of view, I don't much care whether a specific piece of land is called "monument" or "park". But from a pragmatic pro-self-ownership, anti-Good-Old-Boy-politicians point of view, I believe the devil you know is vastly preferable to the devil you don't know.

It is a foregone certainty that if CNM is turned into a national park, the pro-park propagandists will not be content with the present boundaries. I guarantee you that, at the very least, they will try to add areas like Bang's Canyon, which would also encompass Little Park Road. Again, this stuff is not rocket science, folks. A mere spoonful of common sense will tell you that what I am saying is true. So why ask for more trouble?

I'm not a licensed lawyer, so I can't give "legal" advice -- nor is this essay to be construed in any way as direct or indirect legal "advice" -- but I do understand corrupt Good-Old-Boy politics, and both the state and federal constitutions recognize my Creator-endowed right of free speech, so my "political" advice to the citizens of Mesa County and Glade Park is to just say a loud and unequivocal "No!" to the wannabe-clever top-down "economic development" idea of turning the Colorado National Monument into a national park. It's virtually certain to cause FAR more problems than benefits.

(NOTE: Article 2, Section 10 of the Colorado Constitution says in pertinent part: “Freedom of speech and press…every person shall be free to speak, write or publish whatever he will on any subject, ... and in all suits and prosecutions of libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.” See also the legal disclaimer for this website.

RECENT VIDEOS, BLOGS, ARTICLES, COLUMNS, AND STATEMENTS:

SHAMELESS SELF-PROMOTION: See John's Twitter for one of the web's most eclectic mashups of interesting real-time news articles. I surf the web for interesting real-time news stories and informative tidbits so you don't have to.

Moving from the monument: Lisa Eckert takes superintendent job at Bryce Canyon National Park, by Gary Harmon - Daily Sentinel

Open communication provides a potential path forward, by Lisa Eckert - Superintendent of Colorado National Monument

Did the Park Service muzzle free speech? - Daily Sentinel

Torn relationships the biggest hazard in Rim Rock Road restrictions, by Jim Spehar - via Daily Sentinel

Glade Park resident asked to leave Two Rivers over fliers, by Gary Harmon - Daily Sentinel

Residents leery of hazardous traffic, by Gary Harmon - Daily Sentinel

‘Our road too,’ residents tell Eckert, by Gary Harmon - Daily Sentinel

Glade Park meeting revisits propane issue, by Gary Harmon - Daily Sentinel

Monument to hold propane route meetings, by Gary Harmon - Daily Sentinel

Push to upgrade Colorado National Monument stalls in Mesa County, by Caitlin Row - Grand Junction Free Press

Opinion: National park status outcome deeply disturbing, by Terri Chappel - Grand Junction Free Press - Check out this sore-loser woman's amazing arrogance and we-they ad hominem attacks on those who disagree with her! She utilizes classic Good Old Boy political rhetoric in perpetrating her ipse-dixitism polemic misconduct. This kind of duopoly-political-hack crap is EXACTLY what the voters of Mesa County have got to reject and learn how to defeat.

Sudden Death to the National Park in Mesa County - KREX TV5

Surprise: Colorado Democrat Won't Attend Fundraiser Obama is Hosting For Him - Townhall.com

Lack of leadership derailed park status - Daily Sentinel editorial

Secrecy Surrounds Sudden Ditching of Colorado National Monument Upgrade, by Anne Landman - Anne Landman's Blog

Monument upgrade dropped, by Gary Harmon - Daily Sentinel

Park hits brakes on propane haul ban, by Gary Harmon - Daily Sentinel

Reverse fuel ban on monument, county says, by Gary Harmon - Daily Sentinel

Tipton keeps firm grasp on U.S. seat, by Gary Harmon - Daily Sentinel

Sheriff Hilkey had pondered King ‘scheme’ during 2013, by Paul Shockley - Daily Sentinel

King should resign - Daily Sentinel editorial

Sen. King should resign, Ethics Watch group says, by Paul Shockley - Daily Sentinel

Sen. King faces charges, by Paul Shockley - Daily Sentinel

Disclosure rule violated with King’s CMU job, by Charles Ashby - Daily Sentinel

King quits sheriff race, by Charles Ashby - Daily Sentinel

King probe widens, by Charles Ashby - Daily Sentinel

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Criminal probe of King’s actions weighed by DA, by Paul Shockley - Daily Sentinel

‘Brady cop’ tag for King, by Paul Shockley - Daily Sentinel

Embattled lawman victor against novice challenger, by Gary Harmon - Daily Sentinel

King cooked timecard, violated policies, says boss, by Paul Shockley - Daily Sentinel

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The Framing Of An Oyster Farm - Drake's Bay Oyster Company - Vimeo video

DEIS Analysis By Dr. Corey Goodman - Vimeo video

FOOTNOTES:

1. Always remember, "politics" = person or group A trying to persuade person or group B to obey the will of A, most frequently for the personal financial benefit of A and to the personal financial detriment (higher taxes) of B. In other words, "politics" = manipulation. That is why deception = the so-called "art" of politics. That is also why "politician" = professional deceiver, and why "political" = deception-based, or having to do with deception. Everybody is competing for political power to steal labor and money out of the "other guy's" pocket and put it in their own. Politicians get votes by promising to be all things to all people. Because that is a physical impossibility, most of their promises of necessity get broken. Because they know this in advance, they are ALL liars to one degree or another. The king is always the most corrupt person in the kingdom. (The first two kings of ancient Israel, Saul and David, were murderers.) In my opinion, any person who sincerely wants to be the king is criminally insane and an implacable deadly enemy to the inalienable Creator-endowed rights of individual freedom and self-ownership. That is also why I believe that a Golden-Rule-morality-based culture is an indispensable prerequisite to any remote possibility of maintaining a U.S.-Constitution-based rule-of-law society for any length of time.

2. In reality, there is no such real thing as "government". It is not a rock, a tree, a river, or even a cloud. It is mere behavior, an established social order, a dominance-based pecking order. With other animal species, it is often called "dominance hierarchy". In the case of humans, the term "social hierarchy" is more often used. As Frédéric Bastiat said, "Government is the great fiction through which everybody endeavors to live at the expense of everybody else." As H.L. Mencken said, "Every election is a sort of advance auction sale of stolen goods." As General Smedley Butler has written, "War Is A Racket". In reality, "government" is merely the dominant individuals in the inherently evil and inevitably corrupting stupid-human pecking order struggle known as "politics"1. These disordered-by-definition dominant individuals merely call themselves "government" so the hoi polloi masses will view them as being intelligent enough and moral enough to merit following and obeying.

3. In pertinent part, page 14 says:

"The defendants (U.S. Dept. Of Interior, et al) have misapplied their own regulation. [HN20] Under 36 C.F.R. § 5.6(c), permits must be issued for the use of park area roads when it is necessary for access to private lands [**46] adjacent to the park area to which access is otherwise not available. What is clear from the evidence here is that the disputed segment of Rim Rock Road and Glade Park Cut-Off constitute the only all-weather access to the Glade Park and Pinon Mesa property for commercial vehicles. Accordingly, permits must be granted for commercial vehicles to use that portion of the road for that purpose, and it would be wholly impracticable to require a determination about whether the Little Park Road was or was not available for use at any given day or time of day."

"Moreover, the regulations should be applied in a way which would make them valid. This court has previously determined that the public has a right of access across the subject road segments for purposes of going between Grand Junction and Glade Park. That right of access is not limited to residents of Glade Park. It includes all of the public, including commercial vehicles. Size and weight restrictions would appear to be appropriate matters for regulation, and control over hazardous substance transportation is necessary. These are matters which are not now before the court in the present litigation. The holding now is that the absolute [**47] prohibition of all commercial traffic in the disputed area is unauthorized by the existing regulation and is contrary to the public's right of way."

"SUMMARY: While there is no direct and controlling precedent for the legal conclusions reached in this opinion, the unique factual history of the development of the Colorado National Monument requires recognition of an obligation on the National Park Service to permit public use of that portion of Rim Rock Drive from the East entrance to the Glade Park Cut-Off and the Glade Park Cut-Off Road within the Colorado National Monument for the limited purpose of continuous travel between the Monument road and the DS Road, subject to such limitations with respect to vehicle size, cargo, speed and other traffic limitations as may be necessary for the safety of persons and property and the protection of the federal property interests involved. The charging of a fee for such non-recreational use is an unlawful interference with that property right of public use and is, additionally, contrary to the statutory limitations on the authority of the National Park Service to charge entrance fees or other recreational use fees under 16 U.S.C. § 460l-6a(g). [**48] Moreover, the charging of an entrance fee for this use is a violation of the regulations at 36 C.F.R. § 71.13(d). Accordingly, the plaintiffs are entitled to declaratory and injunctive relief."

"Upon the foregoing, it is ORDERED, ADJUDGED AND DECREED, that a public right of way exists in that portion of Rim Rock Drive extending from the East entrance of the Colorado National Monument to the Glade Park Cut-Off, and across the Glade Park Cut-Off, [*1281] connecting the DS Road in Glade Park with the Monument Road to Highway 340, and the use of that road for the purpose of continuous travel through the Monument is a non-recreational use for which no entrance fee may lawfully be charged, and the defendants are enjoined from charging any such fee or otherwise preventing such non-recreational use of the roadways. The Clerk shall enter judgment, accordingly, and the plaintiffs are awarded their costs upon the filing of a bill of costs within 10 days from the entry of judgment."

4. My research of the Congressional Record (looking for legislative intent) discovered the interesting fact that when then-Secretary of the Interior, Stewart Udall (senator Mark's uncle), was selling the relevant legislation to Congress, he said, "THE LAST THING IN THE WORLD" the proposed legislation was intended to do was to interfere with ingress and egress between ranches and small communities and the rest of the outside world. So the bureaucratic scumbags were painting me as a criminal for doing what the intent of the law said I was perfectly free to do! That is how I was offended and became radicalized against Big Government and Big Bureaucracy.

5. Perhaps the only point on which I agree with former CNM Superintendent Joan Anzelmo is that if CNM is actually turned into a national park, "Colorado Canyons National Park" seems like the best name. Of course, I hope this doesn't happen, because the citizens of Mesa County don't have the faintest clue of the hassles they will be in for if it did happen.

6. "36 C.F.R. 71.13(b) No entrance fee shall be charged for travel by private noncommercial vehicle over any National Parkway, or any road or highway established as part of the National Federal-Aid System, which is commonly used by the public as a means of travel between two places, either or both of which are outside the Designated Entrance Fee Area;
(c) No entrance fee shall be charged for travel by private noncommercial vehicle over any road or highway to any land in which such person has any property right if such land is within any Designated Entrance Fee Area.
(d) No Federal recreation fee shall be charged for commercial or other activities not related to recreation, including, but not limited to, organized tours or outings conducted for educational or scientific purposes related to the resources of the area visited by bona fide institutions established for these purposes. Applicants for waiver of fees on this basis will be required to provide documentation of their official recognition as educational or scientific institutions by Federal, State or local government bodies and will also be required to provide a statement as to the purposes of the visit proposed. The use of any recreation facilities for which a fee waiver is requested must relate directly to scientific or educational purposes of the visit and may not be primarily for recreational purposes. No Federal recreation fee shall be charged any hospital inmate actively involved in medical treatment or therapy in the area visited."

Under construction . . .

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