ST. GEORGE — A settlement proposed by the plaintiffs in a lawsuit could trigger the revocation of a federal agency’s decision approving the right of way for Washington County’s contested North Corridor.
Proposed in March and discussed between the plaintiffs and the Department of Justice, the proposed settlement is something local officials say they only recently became aware of and are disappointed to have been left out of a discussion they say could directly impact the county.
Elements of the settlement
Put forth by Conserve Southwest Utah and other state and national conservation groups that have long-opposed the Northern Corridor, the settlement outlines ways the plaintiffs believe the proposed roadway is unlawful and a threat to the survival of the threatened Mojave Desert tortoise.
The Northern Corridor would stretch across 4 miles from Washington Parkway on its east end and Red Cliffs Parkway on its west end. The federally-approved right of way for what would eventually become a four-lane roadway also cuts through portions of the Red Cliff Desert Reserve and Red Cliffs National Conservation Area.
The desert reserve and national conservation area originally were set aside for the protection of the desert tortoise, other species and native environment.
The proposed settlement calls for the Interior to revoke the decision allowing the Northern Corridor’s right of way. It also seeks the revocation of the renewal of Washington County’s “incidental take permit” tied to the county’s Habitat Conservation Plan.
The incidental take permit allows the county to move desert tortoises found in the county and place them in the reserve. The removal of the tortoise to the reserve allows for continuing development within the county where it would otherwise be limited due to the threatened reptiles’ presence.
As the approval of this renewal is tied to the approval of the Northern Corridor, plaintiffs want it dropped and are asking the Interior to review its previous decisions with “objective eyes,” as described by Todd Tucci, senior attorney for the Advocates for the West group.
Despite the call to revoke the incidental take permit, the plaintiffs ask the Interior to allow the permit to continue while the agency reviews the matter. This will allow the desert reserve and the Habitat Conservation Plan that governs it to continue without pause.
Freedom of Information Act request
The contents of the settlement were not known to Washington County until Sept. 14 when a Freedom of Information Act request submitted by the County Attorney’s Office over the summer was granted.
“Why wouldn’t they let us be at the table as they are having these discussions?” Washington County Attorney Eric Clarke asked. “I have no idea.”
However, Washington County isn’t the primary target of the lawsuit; rather, it is the U.S. Department of Interior, as they are responsible for approving the right-of-way for the Northern Corridor during the final days of the Trump Administration in January 2021.
While Washington County and the Utah Department of Transportation have joined the lawsuit as interveners (third parties not originally named in the lawsuit yet nonetheless have a stake in the outcome), they aren’t the parties that can remedy the issues surrounding the Northern Corridor – the Department of the Interior is, Tucci told St. George News during a phone interview.
But Clarke said the county should have been part of the discussion.
“We’re entitled to be a part of those (settlement) discussions because we are a part of the lawsuit,” Clarke said. “Clearly, the plaintiffs didn’t want us talking to the Department of Justice. … That’s disappointing.”
In an email exchange between Tucci and the DOJ, the plaintiffs requested that the proposed settlement with the Department of the Interior not be shared with Washington County. However, the DOJ noted the settlement still could be obtained through a FOIA request if Washington County took that route.
“There’s nothing in the letter that remotely concerns me,” Tucci said, adding it shows that the plaintiffs are “problem solvers” while those pushing to the Northern Corridor are “problem creators.”
“I’ve just holding them accountable,” he said.
Washington County and UDOT’s participation in the case is otherwise welcomed and accepted, Tucci added, as he wants the court “to hear all of our arguments because we have the better one.”
Dueling arguments
Both sides of the Northern Corridor suit are confident in their respective positions.
Washington County and UDOT argue the Northern Corridor is a critical piece of future transportation infrastructure for the county. Officials have stated for years that the preexisting traffic system will “fail” if the Northern Corridor is not constructed to help relieve increased traffic that will come with a projected county population of nearly 500,000 by 2060.
As the roadway’s course cuts through the desert reserve and a national conservation area, the county set nearly 7,000 acres aside for the desert tortoise as a new part of the Habitat Conservation Plan known as Zone 6.
One of the county’s primary justifications for the Northern Corridor points to the 2009 Omnibus bill passed by Congress that Clarke and others say contains language instructing the Bureau of Land Management to work with local and state entities to create a roadway through the reserve.
“The law specifically called out (a road) and said BLM will create a travel plan and include a northern transportation route,” Clarke said.
Tucci said the language of the bill doesn’t support the county’s argument. Rather, it calls for alternatives to a Northern Corridor to be considered instead.
“Show me where it says, ‘You shall build a roadway’ – it doesn’t say that,” Tucci said. “It’s an overly-broad interpretation.”
Part of the lawsuit’s purpose is to show the “political maleficence” had during Washington County officials’ crusade for the Northern Corridor, he said, adding the county owned its influence to get local federal offices to approve the roadway that had been repeatedly denied for over a decade.
“The record shows improper political influence,” Tucci said.
A primary objective Conserve Southwest Utah has toward the roadway is that it cuts through an area known to have the highest density of desert tortoises dwelling within the reserve.
Roads are considered problematic for the tortoises because they bring noise, garbage and lights, as well as the possibility of the tortoises becoming roadkill as they attempt to cross the roadway, Tom Butine, former board president of Conserve Southwest Utah, told the Associated Press in June 2021 following the filing of the lawsuit.
What the county offers the desert tortoise is “cancer for the cure,” Tucci said.
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