Don
04-22-2009, 01:28 PM
Provo residents furious over Rock Canyon quarry proposal
Saturday, 28 March 2009
Caleb Warnock - DAILY HERALD
http://www.heraldextra.com/content/view/304396/17/
PROVO -- Rock Canyon was a hornet's nest on Saturday morning, alive with angry and frustrated residents who love the natural beauty here, the open space, the solace, a chance just minutes from downtown Provo to find yourself utterly in the wild.
Today, all that may be at risk, and residents are not taking it lying down. As Gaywyn Quance put it, for those who want the right to the quiet enjoyment of public lands, "now is not the time to be quiet."
About 170 people gathered for a bitterly cold, pre-sunrise 8 a.m. meeting at the canyon's mouth to oppose a proposal by the owner of an old mining claim to quarry one side of the iconic quartzite-rock "gates" that flank the canyon mouth.
Dismantling an icon
Through history, wherever is found an icon, usually not far away is an iconoclast. Richard Davis of Springdell owns 50 percent of a mining claim here. More than a century ago, mining in the canyon meant digging underground to find valuable minerals, but those old mines have long since played out.
Davis's new definition of mining means the removal of surface rock, including the red cliffs that are admired by hikers and frequented by rock climbers.
Davis does not own the land itself, although the mining claim appears to be patented. It's on federal land, and he claims a right to remove minerals, according to John Park, a consultant to Davis, and Nathan Murray, a Provo city staffer. Both spoke extensively at Saturday's meeting.
According to a fact sheet handed out by Park, Davis proposes to use "wire ropes and pry bars assisted by a backhoe or dozer" to remove the south flank of the cliffs from the top down. The rock will then be broken up using a pneumatic hammer and hauled out in dump trucks. The lower half of what is known as the Red Slab is within the property boundary.
Provo has an access and conservation easement on the old mining claim. Davis's claim extends across the canyon and includes some of the slopes on each side. A public trail now runs up that easement and beyond.
To allow public access to the canyon while work goes on -- Davis says for "three to five years" -- a berm and/or fence up to 8 feet tall would be constructed in the narrow space alongside the trail to keep boulders from crushing hikers.
Davis's claim for mineral removal extends some distance up the canyon on both sides, though Park said on Saturday he wasn't sure how far, and declined to show residents even a best guess.
Maps indicate that the east boundary is approximately at the city chlorinator building, a small structure below a well known green gate blocking the canyon road. The western boundary runs across the canyon approximately 100 yards west of the Red Slab, the popular rock climbing site on the canyon's south side.
Evidence of digging can be seen at the north edge of the Red Slab at the bottom of the canyon. The disturbance is the result of a Davis-approved rock removal in 2003 by Michael McPhilomy and his son, Michael Jr. The two were on probation after serving time on two felony counts each of theft for removing rock from federal land without a permit. The dig below the Red Slab violated an order by Fourth District Court Judge Derek Pullan not to dig until proper permits were obtained.
Other scars from the McPhilomy's rock removal can be seen on the north side of the canyon directly across from the Red Slab.
Davis's proposed quarry would operate weekdays up to 10 hours a day during daylight hours, according to Park. As many as 12 to 14 truckloads a day of rock would be removed, each carrying 10-12 yards of the mountain away. One resident estimated this would be more than 18,200 truckloads hauling away 253,000 tons of the mountain removed over five years from the 2.89 acres of the intended quarry site.
Residents on Saturday were disturbed by all of this. Over and over residents said they would never allow a single stone to be removed, no matter what it took. One elderly resident said that if machinery attempted to enter the canyon, residents would become "rock huggers" and would thwart any destruction of the canyon with civil disobedience if necessary.
Quarry ban failed
Davis was not the only person who was the focus of enmity on Saturday. A rush of gasps went across the crowd when city staff said the blame for all of this may fall squarely on the shoulders of Provo's Municipal Council.
Provo planning commissioners voted in June to disallow any quarry work in the canyon, proposing essentially a wholesale ban. But for whatever reason, council members dithered on taking action to approve the ban, not getting around to debating and voting on the issue until about a week after Davis filed his quarry application in early February.
The council's dithering now sits at the center of the controversy because according to Provo city code, a planning commission action is considered active legislation for only six months, Murray told residents. Had council members voted on the quarry ban within six months of the planning commission's vote, Davis's quarry proposal would have been a non-starter because it would have been against city law.
Even if Davis makes his proposal before the council vote, had the council acted within six months of the commission decision, the issue would have been considered active legislation under city code and the council could have easily nixed the quarry proposal.
But today, because the council never got around to the commission's recommendation, the recommended quarry ban may carry no legal weight.
This news seemed to anger residents almost as much as the quarry proposal itself. Conspicuously missing from Saturday's meeting were both Provo Mayor Lewis K. Billings and Councilwoman Cindy Clark, who represents the Rock Canyon neighborhood.
Over and over on Saturday, residents asked what they could do to oppose the quarry plan. Provo's planning commission will hold a hearing on the issue at a date yet to be determined, but "you will not be heard" if you try to extend a voice at that meeting, said Sid Sandberg, Rock Canyon neighborhood chair. There is no way the commission can hear any but a few representative voices from residents.
"You ought to be heard," Sandberg said to the antsy crowd. "The forum to do that is letters to the editor, letters to city elected officials. The reason you are here today is to be better informed."
Good faith proposal?
Not everyone on Saturday thought the Davis quarry proposal was in good faith. At one point, Lehi Hintze, an elderly BYU geologist who has studied Rock Canyon for decades, asked to address the crowd. When organizers declined, the crowd rebelled and officials kowtowed to the public will.
The cliff Davis proposes to destroy "is not rare rock, nor particularly valuable," Hintze said in a weak voice as the crowd strained to hear. "It is the kind of rock that is used as riprap -- piles of rock used for erosion control. Ask yourself, why would he want to propose a quarry? I think he basically wants to be bought off."
Residents said they were concerned about dust, noise, erosion, access to the canyon, the safety of hikers, devaluation of homes and permanent loss of the canyon's aesthetic.
"Why would the city even consider a proposal that will destroy the most beautiful area of town?" one resident said. But city officials said that because of the council's tardy action on banning quarries, the Davis proposal is eligible for consideration as a legal use of the land.
After an hour of hearing from officials, and questions and answers from the crowd, Park led a small group to the cliffs to show exactly what Davis proposes to dismantle in the canyon. Then, two hours after the meeting began, and just after the rising sun had finally reached the canyon floor, the meeting disbanded, though many lingered.
Residents left ready to take action.
Gaywyn Quance, who has lived here for more than a decade, said she would write letters of opposition to Provo Municipal Council and planning commission members -- "the people we have entrusted to look after our chosen way of living."
The quarry proposal is in "absolute, blatant, obvious conflict of our right to quiet enjoyment of public lands," Quance said, "and we have elected officials who get to arbitrate. If you want to maintain the quiet enjoyment, now is not the time to be quiet. I think it's telling that 170 people came to an 8 a.m. below-freezing meeting."
Davis acquired the roughly 80-acre mining claim -- reportedly for less than $100,000 -- in 1998 when the U.S. Forest Service was buying back defunct claims in Rock Canyon. The owners of the claim at the canyon's mouth were asking somewhat more than the Forest Service was willing to pay at the time, according to then-forest supervisor Pete Karp, and so the feds passed on the re-purchase. Davis then picked it up.
The site's convoluted ownership history shows that Davis's interest in the property is 50 percent of an undivided total acreage. That other half was originally held by Greg Sperry, an Arizona man with local ties who bought the property with Davis. Sperry later transferred half his interest, or a quarter of the total, to Stephen Kapelow.
When Davis began making moves toward excavation, State Sen. John Valentine and Phil Lowry, both Provo lawyers, established Red Slab LLC and acquired Sperry's 25 percent to protect the property from excavation. The LLC reportedly made a deal to purchase Kapelow's interest as well. Provo City paid Red Slab for a permanent conservation easement. The purchase of the Kapelow interest is still tied up in court.
Valentine, who was a rock climber in the canyon in the early 1970s, says he has no intention of going along with the Davis plan. He said a resolution could be reached through an out-of-court settlement, but nothing has been agreed upon yet.
"We have made several attempts to settle this case and we're always hopeful that a settlement can be reached," Valentine told the Herald last week. "There's actually pending offers that are being exchanged even now."
Dozens of established rock-climbing routes snake up the red cliffs in Rock Canyon that Davis would blast and remove in a quarrying operation. In 2003, attorney Jeffrey Appel of the firm Ray Quinney & Nebeker in Salt Lake City expressed the opinion that those rock climbing routes constitute a trail easement, since the cliffs have been used for regular rock climbing since at least the early 1960s. They are steep trails, but trails nonetheless, he said, because they follow a regular pattern.
At the time, Appel expressed a willingness to pursue litigation based on the principle of "prescribed easement," where a long-established land use has not been contested by a property owner. No lawsuit materialized at that time.
THE PROPOSAL
Rock Canyon quarry proposal fact sheet, from John Park, consultant to mine claim owner Richard Davis.
Saturday, 28 March 2009
Caleb Warnock - DAILY HERALD
http://www.heraldextra.com/content/view/304396/17/
PROVO -- Rock Canyon was a hornet's nest on Saturday morning, alive with angry and frustrated residents who love the natural beauty here, the open space, the solace, a chance just minutes from downtown Provo to find yourself utterly in the wild.
Today, all that may be at risk, and residents are not taking it lying down. As Gaywyn Quance put it, for those who want the right to the quiet enjoyment of public lands, "now is not the time to be quiet."
About 170 people gathered for a bitterly cold, pre-sunrise 8 a.m. meeting at the canyon's mouth to oppose a proposal by the owner of an old mining claim to quarry one side of the iconic quartzite-rock "gates" that flank the canyon mouth.
Dismantling an icon
Through history, wherever is found an icon, usually not far away is an iconoclast. Richard Davis of Springdell owns 50 percent of a mining claim here. More than a century ago, mining in the canyon meant digging underground to find valuable minerals, but those old mines have long since played out.
Davis's new definition of mining means the removal of surface rock, including the red cliffs that are admired by hikers and frequented by rock climbers.
Davis does not own the land itself, although the mining claim appears to be patented. It's on federal land, and he claims a right to remove minerals, according to John Park, a consultant to Davis, and Nathan Murray, a Provo city staffer. Both spoke extensively at Saturday's meeting.
According to a fact sheet handed out by Park, Davis proposes to use "wire ropes and pry bars assisted by a backhoe or dozer" to remove the south flank of the cliffs from the top down. The rock will then be broken up using a pneumatic hammer and hauled out in dump trucks. The lower half of what is known as the Red Slab is within the property boundary.
Provo has an access and conservation easement on the old mining claim. Davis's claim extends across the canyon and includes some of the slopes on each side. A public trail now runs up that easement and beyond.
To allow public access to the canyon while work goes on -- Davis says for "three to five years" -- a berm and/or fence up to 8 feet tall would be constructed in the narrow space alongside the trail to keep boulders from crushing hikers.
Davis's claim for mineral removal extends some distance up the canyon on both sides, though Park said on Saturday he wasn't sure how far, and declined to show residents even a best guess.
Maps indicate that the east boundary is approximately at the city chlorinator building, a small structure below a well known green gate blocking the canyon road. The western boundary runs across the canyon approximately 100 yards west of the Red Slab, the popular rock climbing site on the canyon's south side.
Evidence of digging can be seen at the north edge of the Red Slab at the bottom of the canyon. The disturbance is the result of a Davis-approved rock removal in 2003 by Michael McPhilomy and his son, Michael Jr. The two were on probation after serving time on two felony counts each of theft for removing rock from federal land without a permit. The dig below the Red Slab violated an order by Fourth District Court Judge Derek Pullan not to dig until proper permits were obtained.
Other scars from the McPhilomy's rock removal can be seen on the north side of the canyon directly across from the Red Slab.
Davis's proposed quarry would operate weekdays up to 10 hours a day during daylight hours, according to Park. As many as 12 to 14 truckloads a day of rock would be removed, each carrying 10-12 yards of the mountain away. One resident estimated this would be more than 18,200 truckloads hauling away 253,000 tons of the mountain removed over five years from the 2.89 acres of the intended quarry site.
Residents on Saturday were disturbed by all of this. Over and over residents said they would never allow a single stone to be removed, no matter what it took. One elderly resident said that if machinery attempted to enter the canyon, residents would become "rock huggers" and would thwart any destruction of the canyon with civil disobedience if necessary.
Quarry ban failed
Davis was not the only person who was the focus of enmity on Saturday. A rush of gasps went across the crowd when city staff said the blame for all of this may fall squarely on the shoulders of Provo's Municipal Council.
Provo planning commissioners voted in June to disallow any quarry work in the canyon, proposing essentially a wholesale ban. But for whatever reason, council members dithered on taking action to approve the ban, not getting around to debating and voting on the issue until about a week after Davis filed his quarry application in early February.
The council's dithering now sits at the center of the controversy because according to Provo city code, a planning commission action is considered active legislation for only six months, Murray told residents. Had council members voted on the quarry ban within six months of the planning commission's vote, Davis's quarry proposal would have been a non-starter because it would have been against city law.
Even if Davis makes his proposal before the council vote, had the council acted within six months of the commission decision, the issue would have been considered active legislation under city code and the council could have easily nixed the quarry proposal.
But today, because the council never got around to the commission's recommendation, the recommended quarry ban may carry no legal weight.
This news seemed to anger residents almost as much as the quarry proposal itself. Conspicuously missing from Saturday's meeting were both Provo Mayor Lewis K. Billings and Councilwoman Cindy Clark, who represents the Rock Canyon neighborhood.
Over and over on Saturday, residents asked what they could do to oppose the quarry plan. Provo's planning commission will hold a hearing on the issue at a date yet to be determined, but "you will not be heard" if you try to extend a voice at that meeting, said Sid Sandberg, Rock Canyon neighborhood chair. There is no way the commission can hear any but a few representative voices from residents.
"You ought to be heard," Sandberg said to the antsy crowd. "The forum to do that is letters to the editor, letters to city elected officials. The reason you are here today is to be better informed."
Good faith proposal?
Not everyone on Saturday thought the Davis quarry proposal was in good faith. At one point, Lehi Hintze, an elderly BYU geologist who has studied Rock Canyon for decades, asked to address the crowd. When organizers declined, the crowd rebelled and officials kowtowed to the public will.
The cliff Davis proposes to destroy "is not rare rock, nor particularly valuable," Hintze said in a weak voice as the crowd strained to hear. "It is the kind of rock that is used as riprap -- piles of rock used for erosion control. Ask yourself, why would he want to propose a quarry? I think he basically wants to be bought off."
Residents said they were concerned about dust, noise, erosion, access to the canyon, the safety of hikers, devaluation of homes and permanent loss of the canyon's aesthetic.
"Why would the city even consider a proposal that will destroy the most beautiful area of town?" one resident said. But city officials said that because of the council's tardy action on banning quarries, the Davis proposal is eligible for consideration as a legal use of the land.
After an hour of hearing from officials, and questions and answers from the crowd, Park led a small group to the cliffs to show exactly what Davis proposes to dismantle in the canyon. Then, two hours after the meeting began, and just after the rising sun had finally reached the canyon floor, the meeting disbanded, though many lingered.
Residents left ready to take action.
Gaywyn Quance, who has lived here for more than a decade, said she would write letters of opposition to Provo Municipal Council and planning commission members -- "the people we have entrusted to look after our chosen way of living."
The quarry proposal is in "absolute, blatant, obvious conflict of our right to quiet enjoyment of public lands," Quance said, "and we have elected officials who get to arbitrate. If you want to maintain the quiet enjoyment, now is not the time to be quiet. I think it's telling that 170 people came to an 8 a.m. below-freezing meeting."
Davis acquired the roughly 80-acre mining claim -- reportedly for less than $100,000 -- in 1998 when the U.S. Forest Service was buying back defunct claims in Rock Canyon. The owners of the claim at the canyon's mouth were asking somewhat more than the Forest Service was willing to pay at the time, according to then-forest supervisor Pete Karp, and so the feds passed on the re-purchase. Davis then picked it up.
The site's convoluted ownership history shows that Davis's interest in the property is 50 percent of an undivided total acreage. That other half was originally held by Greg Sperry, an Arizona man with local ties who bought the property with Davis. Sperry later transferred half his interest, or a quarter of the total, to Stephen Kapelow.
When Davis began making moves toward excavation, State Sen. John Valentine and Phil Lowry, both Provo lawyers, established Red Slab LLC and acquired Sperry's 25 percent to protect the property from excavation. The LLC reportedly made a deal to purchase Kapelow's interest as well. Provo City paid Red Slab for a permanent conservation easement. The purchase of the Kapelow interest is still tied up in court.
Valentine, who was a rock climber in the canyon in the early 1970s, says he has no intention of going along with the Davis plan. He said a resolution could be reached through an out-of-court settlement, but nothing has been agreed upon yet.
"We have made several attempts to settle this case and we're always hopeful that a settlement can be reached," Valentine told the Herald last week. "There's actually pending offers that are being exchanged even now."
Dozens of established rock-climbing routes snake up the red cliffs in Rock Canyon that Davis would blast and remove in a quarrying operation. In 2003, attorney Jeffrey Appel of the firm Ray Quinney & Nebeker in Salt Lake City expressed the opinion that those rock climbing routes constitute a trail easement, since the cliffs have been used for regular rock climbing since at least the early 1960s. They are steep trails, but trails nonetheless, he said, because they follow a regular pattern.
At the time, Appel expressed a willingness to pursue litigation based on the principle of "prescribed easement," where a long-established land use has not been contested by a property owner. No lawsuit materialized at that time.
THE PROPOSAL
Rock Canyon quarry proposal fact sheet, from John Park, consultant to mine claim owner Richard Davis.