Full opinion text
MEMORANDUM OPINION AND ORDER JENKINS, Senior District Judge. This case concerns a road. It brings to court a contest of wills between two governmental entities, each vying for dominion over the road. This case arises from an incident in February of 1996 in which one entity altered one part of the road without the blessings of the other entity. This case involves equipment, engineering, environment, and ego. This case asks the very particular meaning of very general words chosen long ago, and seeks to define the character of the road and its relationship to the national park through which it passes, now and in years to come. At its heart, this case is about toho gets to say. Bench Trial This matter was tried to the court for eight days, from February Í6 through February 25, 1999. Margo D. Miller, and Paul F. Holleman, United States Department of Justice, and Daniel D. Price, Assistant United States Attorney, appeared on behalf of the United States; Ronald W. Thompson and Barbara Hjelle appeared on behalf of Garfield County; Stephen Boyden appeared on behalf of the State of Utah; and William J. Lockhart and Wayne G. Petty appeared on behalf of the National Parks and Conservation Association. The court heard extensive testimony from fact and expert witnesses, and received numerous exhibits into evidence. At the conclusion of the evidence, the court heard closing arguments by counsel and took the matter under advisement. The parties filed extensive post-trial legal memoranda and submitted proposed findings of fact and conclusions of law. THE FACTUAL CONTEXT The Burr Trail and Capitol Reef National Park The Burr Trail winds for sixty-six miles through federally owned land in the rugged, dramatic terrain of southern Utah’s Garfield County. Connecting the town of Boulder with Lake Powell’s Bullfrog Basin Marina, the road at various points traverses across or next to unreserved federal lands, two wilderness study areas, the Capitol Reef National Park, and the Glen Canyon National Recreation Area. Sierra Club v. Hodel, 848 F.2d 1068, 1073 (10th Cir.1988). Noting that “certain public lands in the State of Utah contain narrow canyons displaying evidence of ancient sand dune deposits of unusual scientific value, and have situated thereon various other objects of geological and scientific interest,” President Franklin D. Roosevelt created the Capitol Reef National Monument by Proclamation 2246 on August 2, 1937, 50 Stat. 1856. On January 20, 1969, President Lyndon B. Johnson issued Presidential Proclamation 3888, 83 Stat. 922, which expanded the boundary of the Capitol Reef National Monument to include “the outstanding geological feature known as Wat-erpocket Fold and other complementing geological features ... such as Cathedral Valley,” id., as well as land traversed by the Burr Trail. The Proclamation further declared that “[wjarning is hereby expressly given to all unauthorized persons not to appropriate, injure, destroy, or remove any feature of this monument .... ” On December 18, 1971, Congress established the Capitol Reef National Park, superseding the prior national monument and directing the National Park Service to “administer, protect, and develop the park” under the direction of the Secretary of the Interior. Pub.L. No. 92-207, § 5(a), 85 Stat. 739 (1971), codified at 16 U.S.C.A. § 273d(a) (1992). Taking its name from the white dome-shaped rock formations on the Fremont River, Capitol Reef National Park (the “Park”) now embraces nearly 242,000 acres of scenic Utah landscape. Garfield County asserts a right-of-way pursuant to § 2477 of the Revised Statutes of the United States, 43 U.S.C. § 932 (repealed 1976), along the entire 66-mile length of the Boulder-to-Bullfrog Road, including the Burr Trail, as well as the right to construct and maintain the road thereon. For purposes of this litigation, at least, the Government concedes that Garfield County owns an R.S. § 2477 right-of-way along the Capitol Reef portion of the Boulder-to-Bullfrog Road; interve-nor National Parks and Conservation Association does not. This case involves only that portion of the road which traverses Capitol Reef National Park, an unpaved segment approximately 8.4 miles in length, with only the most easterly one-mile of that segment actually involved in the incident giving rise to this lawsuit. Other segments of the Boulder-to-Bullfrog Road have previously been the subject of litigation, particularly Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987), affirmed in part, reversed in part and remanded, 848 F.2d 1068 (10th Cir.1988). That earlier experience provides helpful guidance in resolving the current dispute. Indeed, each of the parties relies upon the opinions in Hodel for support of some aspect of its position concerning the Capitol Reef segment. The Road & The Park: 1972-1996 In 1973, at the direction of Congress in § 6 of the Act creating the Park, the Park Service completed a study of road alignments in and near the Park, making only brief mention of the Burr Trail road: South of Utah 24, the only improved road to cross the park is the Burr Trail. Thirty-six miles long, this county road joins the town of Boulder to the road [extending south from Utah 24 to Bullfrog Basin]. The nature of the Water-pocket Fold — the steep topography and instability of the land — makes it unfeasible to substantially upgrade the Burr Trail; instead, this road will be maintained as a gravel road. (U.S. Exh. 1058, at 37-38.) In October 1982, the Park Service issued its General Management Plan and Final Environmental Impact Statement for Capitol Reef National Park. (U.S. Exh. 7.) While noting that “Garfield County has indicated an interest in paving the county road from Boulder to Ticaboo,” which possibly “would shift a portion of the regional traffic from Utah 24 to the Burr Trail in the South District of the park,” (id. at 70), and that Garfield County was maintaining the road, which was “passable for most vehicles” except in rainy weather (id. at 78), the plan expressed little interest in road improvements: It is not in the interest of the Park Service to finance improvements of the through-roads in the South and North districts during the lifetime of this plan. Should the county and/or state propose improvements to any of these roads, the Park Service will retain a voice in the design of these roads and the regulation of traffic on them within the park to protect the park lands, resources, and visitors. (Id. at 37.) The plan addressed proposed road improvements by others. It contemplated that “[i]mproved roads will retain their existing alignments, with the possible exception of realignment in steep terrain near the park boundary east of The Post,” and that “minor realignment may occur” on the switchbacks “down the strike face of the Kayenta formation ...(Id.) The Park Service retained “the right to designate and construct access roads and scenic pullouts,” would “require and review road designs and will approve the conformity of construction to approved designs,” may “restrict use on county or state roads within the park,” including “designat[ing] hours of day or season during which heavy equipment such as trucks may be operated within the park.” (Id.) Yet the plan also contemplated that the Park Service “will cooperate with county or state planning, design, and construction activities within the purview of its authority,” and “will grant the county and/or state a right-of-way” for realignments of the Burr Trail road. (Id.) In May, 1984, Creamer and Noble Engineers and the Five County Association of Governments issued a “Preliminary Engineering Report” on a project called the “Boulder-Bullfrog Scenic Road,” an “improvement” project that “calls for the construction of approximately 66 miles of paved roadway designed to support an average daily traffic of 260 vehicles .... ” (U.S.Exh. 9.) The report contemplated “construct[ing] a scenic road which is capable of safely allowing year-round access into the area at a moderate speed” on a roadway cross section that “has been approved by the National Park Service.” (Id.) The idea caught the attention of Congress: on October 10, 1984, a congressional conference committee explained that the “managers deleted the $8,600,000 proposed by the Senate to pave the Burr Trail and upgrade it into an all-weather, scenic highway linking the Utah towns of Boulder and Bullfrog. Construction funds were deleted in response to strenuous objections about potentially serious environmental problems.” 130 Cong. Rec. 31516 (Oct. 10, 1984). Observing that the “[pjrojeet proponents point to potentially significant benefits and the long history associated with proposals to upgrade the road,” and “in order to provide adequate information respecting environmental concerns,” the committee directed the Park Service “... to conduct an Environmental Assessment,” hold public meetings, and to “transmit such an assessment, together with its recommendation” concerning the proposal to pave the Burr Trail road to the committee by July 1, 1985. (Id.) The committee made $200,000 available for that purpose, noting that the conference committee managers “are extremely sensitive to the environmental consequences of such construction.” (Id.) On December 2, 1985, the Park Service and the Bureau of Land Management (BLM) issued a final Environmental Assessment (“EA”) entitled “Environmental Assessment on Paving the Boulder-to Bullfrog Road,” and including a “Finding of No Significant Impact and Record of Decision.” (U.S.Exh. 13.) The documents capsulized the differing views concerning the proposed improvements: The proponents of paving the road state that they expect a paved road to increase tourism in the county with concomitant increased tourist spending, greater local employment and economic growth. Opponents of paving the road question projected economic benefits, point to possible environmental degradation, and perceive a loss of aesthetic experience. (Id. at 2.) The Director of the Park Service recommended “a version of the limited improvement alternative,” proposing that “the entire length of the trail become a rural scenic road maintained by and under the jurisdiction of the National Park Service,” with paving of only “[t]he most critical portions of the road” while the remainder “would adhere to the present horizontal and vertical alignment and cross section but would be improved to an all-weather gravel surface.” (Id.) Additional environmental assessments or supplements were prepared concerning other segments of the Boulder-to-Bullfrog Road in 1988 and 1989, affecting BLM lands. (U.S.Exh. 16, 19.) The BLM District Manager approved Garfield County’s proposal to “upgrade those portions of the existing Boulder to Bullfrog Road that are located on BLM administered or state lands” to “either a paved or gravel surface travel width of 24 feet with a design speed of 30 to 40 miles per hour.” (U.S. Exh. 19, at 3.) He also “reconfirm[ed] the findings contained in the 1985 EA.” (Id., “Finding of No Significant Impact.”) In 1992, the Park Service requested additional information from Garfield County concerning its proposal for the Capitol Reef segment. (See U.S. Exh. 21.) On May 13, 1992, Thomas Hatch, Chairman of the Garfield County-Commission, responded that “Garfield County has no immediate funding sources available to complete the improvements” then under consideration, and no “biddable documents and design plans for significant portions of the Boulder to Bullfrog Road.” Nevertheless, Chairman Hatch asserted, “The county is under no obligation to provide engineering detail beyond NPS review authority,” which he believed was limited to “design elements which may unduly or unnecessarily impact park resources.” (U.S.Exh. 22.). The response included a memorandum from county engineer Brian Bremner, which Chairman Hatch believed “answers the questions you have outlined ....” (Id.) Subsequent conversations pointed back to the 1985 Creamer and Noble “Preliminary Engineering Report” as the most detailed treatment of the county’s proposal. (See U.S. Exh. 23.) In 1993, the Park Service and the BLM prepared another “Environmental Assessment for Road Improvement Alternatives!)] Boulder-to-Bullfrog (Burr Trail),” examining the environmental impact of Garfield County’s proposal. By that time, the proposal contemplated several changes to “Segment 2” traversing Capitol Reef National Park: • “to upgrade the entire road to a maximum 28-foot bituminous, paved road surface with gravel base courses to provide adequate structural stability,” requiring a 30 to 32-foot subgrade width; • to improve the width and drainage of the “switchbacks” portion of the road, widening it wherever possible to accommodate two passing vehicles and installing a barrier on the outside of the roadway; • in the alternative, to reroute the “switchbacks” several hundred feet south, performing “major rock excavation” and eliminating “two or three of the switchbacks” and using fill to elevate the lower portion of the descent; a one- or two-bridge configuration at the top of Waterpocket Fold; and • to realign or relocate the road leading to the eastern park boundary with “a maximum 28-foot paved top for this area.” (U.S. Exh. 26, at 25, 29-31.) “The cumulative effects of the Garfield County proposal,” the assessment observed, “are centered around the projected increase in traffic.” (Id. at 99.) The assessment document also considered two other approaches, “Alternative B” and “Alternative C,” involving more limited improvements to the road, but nevertheless having some “increased traffic” effects. Later in 1993, following a meeting with County officials, Superintendent Lundy proposed that the Park Service acquire the right-of-way and school section land along the Capitol Reef segment and assume responsibility for the improvement and maintenance of that portion of the road. (U.S. Exh. 1034, letter from Supt. Lundy to Comm’r Hatch, dated December 8, 1993.) In October of 1994, a “Statement of Intent” to “pursue in good faith the preparation and execution of a memorandum of understanding” concerning the Park Service proposal was signed by Marty Ott for the Park Service and Commissioner Hatch for the County. (U.S.Exh. 1035.) No memorandum of understanding was subsequently executed, and negotiations on the proposal ended “without ... a formal letter exchange between the parties that said we’re no longer negotiating.” (II Trial Transcript, dated February 17, 1999, at 21:20-22 (testimony of Charles Lundy).) In November 1994, the Park Service’s Rocky Mountain Regional Office also completed an “Engineering Evaluation” of an “all-weather route along Burr Trail within Capitol Reef National Park,” which provided “an engineering evaluation of the minimum requirements needed to provide a two-lane, all-weather route” along the Capitol Reef segment. (U.S. Exh. 1041, at 1.) The Engineering Evaluation recommended “a twenty foot wide running surface,” including “the ditch foreslope along most segments of the road because, as currently maintained, this slope is flat enough to provide a safe driving surface.” (Id.) Given that minimum, “It appears that the existing horizontal and vertical roadway alignments can be safely maintained in their current location .... ” (Id. at 2.) Concerning the portion from the eastern boundary to the Post, the Engineering Evaluation recommended that “gravel surfacing should be applied to the road surface to make it passable in wet conditions,” and that to accomplish this, “widening should occur.” (Id.) That being so, “The steep slopes directly adjacent to the roadway near the east boundary will be the most severely impacted area,” and “[sjome adjustment to the horizontal alignment ... can be performed to reduce these impacts ....” (Id.) These considerations, coupled with the need for box culverts, approach fills and stone armoring, indicated that “[tjhere will be greater impacts due to proposed improvements along this section than any other.” (Id.) Three months later, in February of 1995, the Park Service issued a “Finding of No Significant Impact” (FONSI) under NEPA. The FONSI adopted a “preferred alternative” consisting of “a combination of the alternatives evaluated in the EA,” and authorizing limited improvements on all but one mile of the Capitol Reef segment. These improvements included widening the Burr Trail road to “a 20-foob-wide dirt running surface” to permit the road to “be managed as a low impact, low speed, safe, all-weather route for most two-wheel drive vehicles.” (U.S. Exh. 30, at 2.) The FON-SI contemplated the future “graveling the road from the Post to the eastern park boundary” and the construction of “[vjent-ed low water crossings and box culverts” to create “an all-weather road,” but cautioned that “at minimum an environmental assessment will be prepared prior to construction approval of these activities within Capitol Reef National Park.” (Id. at 2.) The FONSI thus echoed the recommendations and impact concerns discussed in the November 1994 Engineering Evaluation with reference to the eastern one-mile portion of the road. The FONSI also expressed concern that widening and paving the Capitol Reef segment as proposed by Garfield County would significantly increase traffic, diminishing the wilderness character of the Park: [A] fully paved road in which major alterations are made through Capitol Reef National Park, particularly any alterations to the switchback section of the park, and other levels of construction impacts such as substantial bridging, widening, or increases in the elevation of the road bed that fundamentally change the character or use of the road or adjoining areas are likely to cause significant direct, indirect and cumulative impacts. Recreational vehicle and tour bus use and heavy commercial traffic would be more likely to use a significantly altered road as a thoroughfare, creating direct, indirect and cumulative impacts on adjacent resources and making the area less suitable for and attractive as a gateway to a wilderness experience. Greatly increased traffic volume and speed would increase the potential for conflicts with wildlife and for damage to the soils and vegetation near the road.... (Id. at 4.) In contrast, the FONSI observed that the agencies’ “preferred alternative,” (the unpaved “low speed, safe, all-weather route”), was “reasonable and necessary for public lands and will not cause unnecessary or undue degradation of public lands or derogation of park/recreation area values.” (Id. at 1.) Garfield County appealed from the FONSI by filing a notice with the BLM on March 10, 1995. The Interior Board of Land Appeals later affirmed the FONSI, rejecting the County’s assertion that the BLM’s role was limited to analysis of the County’s proposal, and that the FONSI unlawfully “interferes with its ability to take action reasonable and necessary to ensure safe travel” by users of its Burr Trail right-of-way. 147 IBLA 328, 334, 338. Curiously, though, the County did not pursue an appeal from the Park Service portion of the FONSI concerning the Capitol Reef segment of the road. About the same time, Park Service officials became concerned that the County’s “maintenance” of the road was resulting in widening of the roadway. Superintendent Lundy raised the matter in a letter to Commissioner Liston dated March 16, 1995, suggesting that the Park Service may place stakes “alongside the road through the park to assist your maintenance crews in staying within the roadway.” (U.S.Exh. 1046.) Commissioner Liston responded by letter on April 11, 1995, objecting to Park Service staking of the roadway, suggesting instead that “[w]e would be willing to cooperate with you by placing stakes at the appropriate time and at appropriate locations along our right-of-way.” (U.S.Exh. 33.) Lundy then set up a meeting with county officials in hopes of reaching agreement as to future maintenance activities. (See U.S. Exh. 1048.) In April 1995, County officials and Park Service representatives toured the road, talking about the proposed improvements on the Capitol Reef segment, beginning at the park’s western boundary and extending eastward to the Post. (See I Trial Transcript, date February 16, 1999, at 138:2-140:15 (testimony of Charles Lun-dy).) The work discussed included some fairly significant projects, such as the installation of culverts, the widening of the road, and the lowering of the slopes of two hills to improve sight distance for motorists. (Id. at 141:6-142:13; see U.S. Exh. 34, letter from Supt. Lundy to Comm’r Liston, dated April 27, 1995.) During the remainder of 1995, County and Park Service officials exchanged telephone calls and correspondence concerning the County’s proposed work, reaching some tentative agreements as to improvements from the western park boundary to the switchbacks. (See U.S. Exhs. 34, 35, 37.) In late November 1995, the County began the maintenance and improvement work, starting at the west entrance of the park. (See Pretrial Order, Uncontrovert-ed Facts ¶ 26; U.S. Exh. 38.) Though initially there were concerns expressed about a grader scraping outside of the roadway to gather material, that matter was quickly resolved. (I Trial Transcript at 147:1-150:10 (testimony of Charles Lun-dy); II Trial Transcript, dated February 17, 1999, at 15:19-18:22 (testimony of Charles Lundy); U.S. Exhs. 39-41.) County road personnel and Park Service officers had frequent contact as the work progressed, and issues that arose were generally resolved by informal agreement or acquiescence. (See generally U.S. Exh. 42; U.S. Exh. 63, Declaration of Robert Cox, dated September 18, 1996 (“Cox Decl.”).) The February 13, 1996 Incident On January 8, 1996, County representatives raised the question of improvements at the east entrance to the park. For the first time, they expressed interest in cutting away a hill at that site. (II Trial Transcript, dated February 17, 1999, at 44:13-45:3 (testimony of Robert Cox); U.S. Exh. 59, Robert Cox Notes (entry for Jan. 8, 1996).) Meeting at the eastern boundary the next day, Robert Cox, the Park Service roads foreman, Park Superintendent Charles Lundy, arid Robert Ven Belle, Park Service operations chief, looked at the site and noted that an environmental assessment was needed before such work could proceed. (Id. at 47:6-21; U.S. Exh. 59 (entry for Jan. 9, 1996).) On January 11, 1996, Cox and Brian Bremner, the County’s engineer, met again on the eastern end of the Capitol Reef segment, with Bremner making photographs and journal entries from the switchbacks to the eastern boundary of the park. (U.S.Exh. 43.) Cox again cautioned Bremner that as to any work in that portion, “we were going to have to stay with the FONSI.” (Id. at DJ001719.) Brem-ner responded that “it is my understanding that there are some questions regarding that,” and that “we would decide what to do, and somebody would contact Chuck [Charles Lundy, Park Superintendent] and advise him of our plans.” (Id.) On February 9, 1996, Cox and Bremner again met on-site and reviewed what Garfield County workers had marked along the one-mile east entrance segment for construction work. (II Trial Transcript, at 49:10-51:2 (testimony of Robert Cox); U.S. Exh. 46 (Bremner Burr Trail Log); Cox Decl. at ¶¶ 20-22.) By telephone earlier that day, Bremner had explained to Cox that he wanted to cut into the hill at the park’s eastern entrance, working from the bottom, “at least one cat blade width wide.” (U.S.Exh. 46.) Cox again raised the question of an environmental assessment of the proposed work, and indicated that consistent with the FONSI, the Park Service could not agree to any work on the hill at the east entrance without such an assessment. (Cox Decl. at ¶ 22.) After reviewing the County’s stakes on-site, Cox told Bremner that he “wouldn’t recognize these flagged areas as any kind of a right-of-way,” and reminded Bremner “that he could not remove any material from the hill.” (II Trial Transcript at 51:5-6, 51:17-18.) Cox and Bremner agreed to meet again on February 12 to look at the County’s staking of “other areas” of the project. (Id. at 51:19-25.) The February 12 meeting did not occur. Bremner telephoned Cox at 8:00 a.m. that day, informing him that the County would begin work on the one-mile segment at 8:00 a.m. the next day. Both agreed that they would not meet on the road that day, February 12th. (Id. at 52:2-8 (testimony of Robert Cox); U.S. Exh. 48 (Bremner Burr Trail Log).) Cox told Bremner that he would be there by 10:00 a.m. on February 13th, and understood Bremner to say that the crew would begin the routine maintenance work already agreed to at the Post. (Id. at 52:6-20 (testimony of Robert Cox); Cox Decl. at ¶ 23.) , That same day, Park Superintendent Charles Lundy telephoned the County’s special counsel, Barbara Hjelle, to discuss the proposed work at the eastern end of the Capitol Reef segment. At 3:30 p.m. that day, the entire County Commission, the County Clerk and Mr. Bremner met and conferred with Ms. Hjelle, using Bremner’s speaker phone. Ms. Hjelle outlined three concerns expressed by Lundy, Bremner recalled, including the County’s plan “to steepen the cut slope” at the east boundary of the park, and “that we were taking approximately half of a 40-foot hill.” (U.S. Exh. 48 (Bremner Burr Trail Log).) Mr. Bremner recalls responding “that there is no 40-foot cut; that our intention is to steepen the slope on the existing cut bank, the east bank of Capitol Reef National Park; that it will probably entail about one cat blade width at the toe of the existing slope.” (Id.) Bremner thought “that we can have the material stand fairly steep since it’s hardened clay,” and that the existing slope was “also of a very dangerous nature.” (Id.) Bremner rejected Lundy’s suggestion that signs be posted: “Considering the nature of the road, the extremely limited sight distance, and the effect signs have on the motoring public, I indicated that it would not solve any problems and that widening was the only solution.” (Id. (emphasis added).) Mr. Bremner then noted that [sjeveral points were discussed regarding potential outcome strategy and methods of proceeding. Throughout the conversation through gestures, whispers, and mouthing, the Commission indicated that we should go ahead. At approximately 4:00 p.m., the conversation ended. Upon hanging up, each of the Commission members indicated to me that they think we should move forward on the project and continue with the work that ive have planned. (Id. (emphasis added).) Ms. Hjelle attempted to contact Charles Lundy by telephone, but without success, leaving a message and informing the County Commission she would try again in the morning. (Id.) Bremner and others arrived at the site by 8:00 a.m. the next morning, February 13, 1996. Unable to reach Hjelle by telephone that morning, Bremner directed the county workers to go forward with the planned work on the road, including the cut of the hill at the park’s east entrance, and he told Jake Leibenguth, the bulldozer operator, to work quickly: Q How quickly were you working that day? A As fast as I could. Q Why was that? A I was told to. Q Who told you to? A Mr. Bremner. (II Trial Transcript, dated February 17, 1999, at 116:21-117:1 (testimony of Jake Leibenguth).) Mr. Leibenguth cut into the hill at the east entrance just short of the newly placed stakes marking the “previously disturbed area” north of the road. He did the same at 45, cutting with his bulldozer up to the stakes marking the “disturbed area:” Q Were you operating of any plans or drawings? A No. Q And how did you decide when you were finished working here? A Well there are stakes right here. It doesn’t show up very good but I got right back to the stakes that we staked there and that’s as far as I got back. When I got to them I was through. (Id. at 118:12-21.) The “disturbed area” defined the scope of the work, as counsel emphasized on cross-examination: Q So prior to the time that you started this area was there any discussion ... where Mr. Bremner says, look guys this is a sensitive area, be careful, don’t get outside of the disturbed area? A Oh yeah, we knew that, not to get past them stakes. Q And I want to start at the east end. A The big hill. Q You spend an hour and a half on that hill. Had you staked where you thought the disturbed area was before? A Yeah. You mean the disturbed area? Q Yeah. A Yeah. Q Did any of the work you performed that day, did you get outside of the disturbed area on the east entry of what we call .05? A Uh-uh. (Id. at 122:12-128:3.) The same may be discerned from some of the visual exhibits presented at trial, and to which Mr. Lei-benguth referred. (See, e.g., U.S. Exh. 62, photos 191, 193, 196, 205, 214, & passim; 1099,1104.) By the time Cox arrived at the site at about 10:00 a.m., much of the work had been done, including the bulldozing of part of the hill and the widening and realignment of the road approaching the east entrance of the park, and a three- to four-foot cut on the north lane near the Post. Upon observing the work and speaking briefly with Bremner, Cox contacted the park superintendent, who instructed him to have all work stopped at the site. (II Trial Transcript at 53:1-54:14 (testimony of Robert Cox).) Cox told Bremner to cease all widening, culvert and riprap work, and took photographs at various points between the Post and the east entrance. (Id. at 54:15-57:13; see U.S. Exh. 61 (photographs).) He also measured the width of the road at the east entrance hill at 30 feet, six inches, in contrast to an earlier measurement of 19 feet from the same stake — a difference of eleven feet six inches. (Id. at 57:14-58:22.) In addition to performing maintenance work on this most easterly one-mile segment of the road — grooming the back-slopes, foreslopes, and repairing the crown of the road — it remains uncontroverted that the County made improvements to the road. At approximately milepost .05, “the County excavated into the north backslope of the road,” — the hill at the park’s east entrance — “steepening it by removing about 160 cubic yards of material, which was then used on the road.” (Pretrial Order, dated February 16, 1999, “Uncon-troverted Facts,” at ¶ 44.) Doing so changed the alignment of the road — -the horizontal alignment by at least four feet, the vertical alignment by two feet. (Id.;' see U.S. Exh. 54, part E.) At approximately milepost .45, the County pulled the backslope, removed stone at the base of the rock slope, and created a drainage ditch. (Id. “Uncontroverted Facts” at ¶ 46.) At approximately milepost .9, the county cut about two feet of material away from a small rise in the road, filling most of that material back into the road and thereby “extending the sight distance.” (Id. “Uncontroverted Facts” at ¶ 47.) Here, the County’s second bulldozer had made “a vertical cut by about 3 or 4 feet on the north lane.” (II Trial Transcript, at 55:1-2 (testimony of Robert Cox).) In compliance with Cox’s request, the County did not complete the additional work it had planned for the one-mile segment, including installing culverts, placing riprap, and widening the cattle guard, but removed loose materials and rocks, as well as uninstalled culverts, and carried them outside of the Park. (Pretrial Order, “Un-controverted Facts,” at ¶ 49.) The facts concerning what happened on February 13, 1996, through words, images, and drawings describing what was actually done, have largely been established without material dispute. The parties differ as to the proper characterization of those facts, and the legal consequences that flow from them. According to the United States, Garfield County workers engaged in road construction work, and “bulldozed two hillsides and dug a four-foot trench ... excavating more than forty dump trucks worth of material. These construction activities performed by the County ... widened and realigned the road, destroyed vegetation, disturbed dirt that had been in place for millennia and changed the experience of the visitor entering the Park at that location.” (United States’ Post Trial Brief, filed March 22, 1999 (“U.S. Brief’), at 1.) In doing so, the United States insists, the County engaged in unauthorized road construction, and did so outside of its statutory right-of-way, thereby committing an unlawful trespass upon the federal lands embraced within Capitol Reef National Park, and damaging park resources. (Id. at 2-36.) According to Garfield County, “the work done on February 13,1996, was reasonable and necessary to meet applicable safety standards,” was maintenance rather than road construction, and “because the County did not exceed the scope of the right-of-way which had been established before the lands were reserved, it did not trespass or impact any values for which Capitol Reef National Park was created ....” (Garfield County’s Post-Trial Brief, filed April 5, 1999, (“County Brief’), at 1.) That being so, the County submits, the “NPS did not have authority to impede the work.” (Id.) The intervenors likewise express divergent views of the February 13, 1996 incident. According to the State of Utah, “all roadwork undertaken by the road crew on February 13, 1996 was reasonable and necessary to enable to vehicles to safely pass each other.” (Intervenor State of Utah’s Posh-Trial Brief, filed April 2, 1999 (“State Brief’), at 1.) The Park Service, the State says, “lacks regulatory authority and a possessory interest sufficient” to maintain its claims against the County because “the authority of the NPS is subject to the County’s valid, existing right-of-way to operate and maintain the Boulder-to-Bullfrog Road.” (Id.) On the other hand, according to the National Parks and Conservation Association, the County “unlawfully and without permission undertook substantial construction” on the road — unlawful “because it was undertaken in calculated disregard of explicit determinations by the National Park Service that further engineering evaluation and environmental assessment of construction plans were required,” because “it caused unauthorized damage to Park lands owned by the United States and enjoyed by NPCA’s members in direct violation of Park Service regulations” governing road construction,, and because “it was undertaken with full knowledge that the work was disapproved by the responsible officials of the National Park Service ....” (National Parks and Conservation Association’s Post-Trial Brief, filed April 13, 1999 (“NPCA Brief’), at 2-3.) LEGAL FRAMEWORK The United States Constitution vests Congress with the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S. Const., art. IV, § 3, cl. 2. See also Federal Power Comm’n v. Idaho PoWer Co., 344 U.S. 17, 21, 73 S.Ct. 85, 97 L.Ed. 15 (1952) (“the power of Congress over public lands ... is ‘without limitation.’ ”) Congress, in turn, has exercised that power over the years by enacting many pieces legislation intended to serve diverse public purposes. Several different Acts of Congress, each enacted through the exercise of the Property Power, bear upon the issues in this case. Section 8 of the Act of July 26, 1866, ch. 262,14 Stat. 251, 253, originally codified as § 2477 of the Revised Statutes of the United States, provided “That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” Congress, in its role as proprietor and in its role as sovereign, thus made a generous grant of public property to those who proved to be enterprising enough to construct a highway across the public domain. Of course, the grant made available rights-of-way only over the unreserved public lands; excluded from the grant were any lands that Congress or its designees chose to reserve for a particular purpose. No matter how enterprising, someone could not acquire a right-of-way under R.S. § 2477 across lands “reserved for public uses” such as a national monument or a national park. By enacting the National Park Service Organic Act (“NPSOA”), ch. 408, 39 Stat 535 (1916), noni codified as amended at 16 U.S.C.A. §§ 1 et seq. (1992), Congress created the National Park Service and delegated part of its constitutional power to the Secretary of the Interior, authorizing the Secretary to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service.” 16 U.S.C.A. § 3 (1992). Congress imposed a duty on the National Park Service to “promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified ... by such means and measures as conform to the fundamental purpose of the said parks, monuments,” which purpose is “to conserve the scenery and the natural and historic objects and the wild life therein,” and to “provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U.S.C.A. § 1 (1992). The Park Service “has broad discretion in determining which avenues best achieve the Organic Act’s mandate,” National Wildlife Federation v. National Park Service, 669 F.Supp. 384, 390 (D.Wyo.1987), but all park areas must be managed “with resource protection the overarching concern.” Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1453 (9th Cir.1996) (app.). Exercising the power delegated by Congress, the Secretary of the Interior has made rules “for the proper use, management, government, and protection of persons, property, and natural and cultural resources within areas under the jurisdiction of the national park service,” 36 C.F.R. § 1.1(a) (2000), including 36 C.F.R. § 5.7, which reads: Constructing or attempting to construct a building or other structure, boat dock, road, trail, path, or other way, telephone line, telegraph line, power line, or any other private or public utility, upon, across, over, through or under any park areas, except in accordance with the provisions of a valid permit, contract, or other written agreement with the United States, is prohibited. 36 C.F.R. § 5.7 (2000) (emphasis added). These Park Service general regulations “apply to all persons entering, using, visiting or otherwise within ... [t]he boundaries of federally owned lands and waters administered by the National Park Service.” 36 C.F.R. § 1.2(a)(1) (2000). The Federal Land Policy and Management Act (“FLPMA”), Pub.L. No. 94-579, 90 Stat. 2744, enacted by Congress in 1976, undertook to delineate the roles of the executive and the legislative branches in managing the public lands in light of no less than thirteen express public policies, and established a comprehensive set of guidelines for the management of federally owned lands under the jurisdiction of the BLM. Among those policies, Congress for the first time expressly stated its intent to retain public lands in federal ownership unless a federal interest would be served by conveying them. 43 U.S.C.A. § 1701(a)(l)-(13) (1986). Consistent with that policy, FLPMA repealed the R.S. § 2477 grant, effective October 21, 1976— the date of FLPMA’s enactment. 43 U.S.C.A. § 1770(a) (1986). Existing rights-of-way remained vested; nothing in the statute “shall have the effect of terminating any right-of-way ... heretofore issued, granted, or permitted.” 43 U.S.C.A. § 1769(a) (1986). Under FLPMA, existing R.S. § 2477 rights-of-way remained in place, but could not be expanded without an additional grant by the Secretary of the Interior pursuant to the 1976 Act. See 43 U.S.C.A. § 1761(a)(6) (1986). In Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987), affirmed in part, reversed in part and remanded, 848 F.2d 1068 (10th Cir.1988), this District, and later the Tenth Circuit, addressed the relationship between Garfield County and the United States arising from the County’s R.S. § 2477 right-of-way along the Burr Trail. Hodel involved another segment of the road crossing lands administered by the BLM. Judge Aldon J. Anderson of this District read the R.S. § 2477 grant in light of Utah state law: The Utah Supreme Court has declared the width of an R.S. § 2477 right-of-way to be that which is reasonable and necessary for the type of use to which the road has been put .... The court has also said that rights-of-way should not be restricted to the actual beaten path, but should be widened to meet the exigencies of increased travel. More specifically, they should be wide enough to allow travelers to pass each other.... 675 F.Supp. at 606 (emphasis added & citations omitted) (citing Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 649 (1929), and Whitesides v. Green, 13 Utah 341, 44 P. 1032, 1033 (1896)). “As a matter of state law,” he wrote, “the Burr Trail may be widened into a two-lane road and may deviate from the present path, as long as such extensions are reasonable and necessary.” Id. Judge Anderson did not decide the precise width of Garfield County’s right-of-way, but did address the question of who gets to say: Whether the proposed construction is actually reasonable and necessary is for the BLM to decide and for this court only to review. In City & County of Denver v. Bergland, 695 F.2d 465, 481 (10th Cir.1982), this circuit held that the initial determination of whether activity falls within an established right-of-way is to be made by the BLM and not by the court. The court should pay considerable deference to the BLM’s experience in examining the stakes, determining traffic patterns and evaluating the impact of the project on the surrounding environment. Id. at 477. Id. “As long as the project stays within the county’s right-of-way,” Judge Anderson noted, “no BLM authorization is needed for construction to proceed.” Id. at 605 n. 31. Conversely, “[t]he county must apply to the BLM for a permit for any construction activity which substantially deviates from its right-of-way,” with “substantial deviation” defined as construction “outside the prescribed boundaries of the right-of-way authorized by the instant grant .... ” Id. at 605-06 n. 31 (quoting 43 C.F.R. § 2803.2(b)). Relying on the BLM District Manager’s finding that the County’s entire proposal fell within the existing right-of-way, as well as evidence concerning engineering factors and highway standards, and the fact that “the project is entirely consistent with the historic physical alignment of the road,” id. at 607, Judge Anderson concluded that “all of the construction now proposed is reasonable and necessary given the current condition of the road and the increasing traffic. Ail of the proposed construction is therefore within Garfield County’s right-of-way.” Id. at 618. On appeal, the Tenth Circuit affirmed much of Judge Anderson’s analysis, including his determination that the proposed work fell within the scope of Garfield County’s right-of-way. The court of appeals refined the appropriate standard measuring the scope of the R.S. § 2477 right-of-way: We believe the “reasonable and necessary” standard must be read in the light of traditional uses to which the right-of-way was put. Surely no Utah case would hold that a road which had always been two-lane with marked and established fence lines, could be widened to accommodate eight lanes of traffic without compensating the owners of property that would be destroyed to accommodate the increased road width. 848 F.2d at 1083. The scope of the right-of-way also finds limitation in light of the uses to which the road was put at the time that FLPMA repealed R.S. § 2477, October 21, 1976: “all uses before October 21, 1976, not terminated or surrendered, are part of an R.S. 2477 right-of-way[;]” thus, “the County’s right-of-way as of the repeal of R.S. 2477 on October 21, 1976, was that which was reasonable and necessary for the Burr Trail’s preexisting uses.” Id. at 1084. The district court opinion recited several pre-October 21, 1976, uses: driving livestock; oil, water, and mineral development; transportation by County residents between Bullfrog and other cities in Garfield County; and at least since 1973, access for tourists to Bullfrog Marina on Lake Powell. 675 F.Supp. at 597 & n. 4. These findings of fact are not clearly erroneous and must be affirmed. Fed.R.Civ.P. 52. Thus, the scope of Garfield County’s right-of-way is that which is reasonable and necessary to ensure safe travel for the uses above-mentioned, including improving the road to two lanes so travelers could pass each other. Id. The Tenth Circuit likewise did not “decide the precise width of this road easement held by the County,” id., concluding instead that Judge Anderson was not clearly erroneous in finding that the County’s “proposed improvements fall within the scope of the right-of-way.” Id. at 1085. Besides the existence and scope of the County’s right-of-way, Hodel addressed the applicability of the National Environmental Policy' Act (“NEPA”) to the BLM’s review of the County’s proposed work. The Tenth Circuit directed the BLM to perform “an environmental assessment, followed by either a finding of no significant impact or an environmental impact statement ... to address environmental issues affecting only those areas in which ... it still has authority to act,” viz., authority measured by “what is relevant to its duty to prevent unnecessary degradation of the WSAs [Wilderness Study Areas].” 848 F.2d at 1096 (emphasis in original). Indeed, the NEPA requirements were triggered by the BLM’s statutory duty to prevent undue degradation of the wilderness study areas. Id. Absent that ■ environmental assessment, Hodel found that the BLM acted improperly in authorizing the County’s proposed improvements. “[W]hen a proposed road improvement will impact a WSA the agency has the duty under FLPMA § 603(c) and the regulation to determine whether there are less degrading alternatives, and it has the responsibility to impose an alternative it deems less degrading upon the nonfederal actor.” Id. at 1090-91 (emphasis added). Like the BLM, the Park Service has a statutory duty and responsibility to protect national park lands. Congress has mandated that use of national parks be regulated “by such means and measures as conform to the fundamental purpose of the said parks ... which purpose is to conserve the scenery and the natural and historic objects and the wild life therein,” and to “provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U.S.C.A. § 1 (1992 & Supp.2000). The authorization of activities shall be construed and the protection, management, and administration of these areas 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 areas have been established, except as may have been or shall be directly and specifically provided by Congress. 16 U.S.C.A. § la-1 (1992). THE PARTIES’ THEORIES The United States’ Theory of the Case The United States seeks declaratory and injunctive relief (as well as damages) on theories of trespass (Count I) and violation of federal regulations concerning construction of roads within park areas, 36 C.F.R. § 5.7 (Count II), including a declaration that Garfield County may not engage in any construction or “maintenance” activity altering the Capitol Reef segment of the Boulder-to-Bullfrog Road without environmental analysis under NEPA and pri- or authorization from the Department of the Interior in light of that analysis. Though it concedes the existence of Garfield County’s R.S. § 2477 right-of-way on the Capitol Reef segment, the United States asserts that Congress and its delegate, the Secretary of the Interior, retain the power under the Property Clause to regulate the use and maintenance of a right-of-way that traverses national park lands. The United States contends that the work done by Garfield County on February 13, 1996 was unlawful because (1) it violated 36 C.F.R. § 5.7, quoted above, governing construction of roads across park lands; (2) it violated the rule of law established by the Tenth Circuit in Hodel, which counsel reads to prohibit improvement of the County’s right-of-way “without first providing the NPS specific plans for its proposed work and giving the agency the opportunity to propose the least degrading alternative,” (United States’ Post-Trial Brief, filed March 22, 1999 (“U.S.Brief’), at 1); and (3) construction activities were performed outside of the County’s R.S. § 2477 right-of-way without permission, constituting a trespass. (Id.) The United States seeks to recover damages in the amount of the total cost of restoring vegetation to the hill at the eastern entrance to Capitol Reef National Park, estimated at trial to approximate $6,840.00. (Id. at 38.) The Scope of Garfield County’s Right-of-Way The United States concedes that the “reasonable and necessary” standard articulated in Hodel defines the scope of the County’s right-of-way, but disagrees with Garfield County’s view of what is “reasonable and necessary” on the eastern one-mile stretch of the Capitol Reef segment. Observing that “the Burr Trail was a narrower, rougher road as constructed pri- or to January 20, 1969 than it is in the 1990’s,” the United States argues that Garfield County’s “rights to use the land froze as of January 20, 1969,” that thereafter “the County could only expand the on[-]the[-]ground disturbances if the expansion was included within the scope of its right-of-way as determined by” the Park Service, and that “[t]he report prepared by Thomas Puto and Elizabeth Koreman is the official scope determination” by the Park Service. (U.S. Brief at 23, 24, 25; U.S. Exh. 65.) The Puto-Koreman Report contemplates a right-of-way accommodating a road surface 20 feet wide, including nine-foot lanes and one-foot shoulders, consistent with Park Service road standards for minor two-way park roads. (Id. at 25-26; U.S. Exh. 65.) A 20-foot road width, the United States argues, is also consistent with AASHTO standards when the low traffic volume is taken into consideration. (Id. at 27; U.S. Exh. 71, at 514.) The United States emphatically rejects the County’s suggestion that its right-of-way should be measured by the “previously disturbed area” adjacent to the road. (U.S. Brief at 32-33.) Such an approach, the government argues, “has no basis in law or fact,” “makes no logical sense,” and “would result in an ‘ever-expanding right-of-way.’” (Id.) Park Service Power to Regulate The United States asserts that the existence of an R.S. § 2477 right-of-way does not diminish the Park Service’s power to regulate road construction activities within a national park, and points to cases such as United States v. Jenks, 22 F.3d 1513 (10th Cir.1994), and 129 F.3d 1348 (10th Cir.1997), and United States v. Vogler, 859 F.2d 638 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 787, 102 L.Ed.2d 779 (1989), as vindicating its position. In Jenks, the Tenth Circuit rejected a claim that use of access roads across forest service lands to reach private lands lay beyond the reach of federal regulation, and upheld agency requirements of a special use permit and payment of a user fee. 22 F.3d at 1517-18. Jenks also denied a claim of implied easement pursuant to the Homestead Act of 1862, observing that “[njothing in the Homestead Act of 1862 suggests that Congress intended to abrogate its right to regulate access over roads located on federal lands.” 129 F.3d at 1354. Rejecting the contention that the Park Service lacked power to regulate travel on the “Bielenberg trail,” a claimed R.S. § 2477 right-of-way, the Ninth Circuit in Vogler explained: Even if we assume that the trail is an established right-of-way, we do not accept Vogler’s argument that the government is totally without authority to regulate the manner of its use. Congress has made it clear that the Secretary has broad power to regulate and manage national parks. The Secretary’s power to regulate within a national park to “conserve the scenery and the nature and historic objects and wildlife therein ....” applies with equal force to regulating an established right-of-way within the park. See 16 U.S.C. § 1. 859 F.2d at 642 (emphasis added & footnote omitted). See also Wilkenson v. Department of Interior, 634 F.Supp. 1265, 1279 (D.Colo.1986). The Park Service, counsel submits, may regulate the construction, improvement, and maintenance of a right-of-way, as well as its use. As Vogler observed: “Congress’ power under the property clause is extensive; ‘the property clause gives Congress the power over public lands “to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them859 F.2d at 641 (citations omitted) (quoting Kleppe v. New Mexico, 426 U.S. 529, 540, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) (quoting Utah Power & Light Co. v. United States, 243 U.S. 389, 405, 37 S.Ct. 387, 61 L.Ed. 791 (1917))). The United States asserts that the Secretary’s exercise of that power in promulgating 36 C.F.R. § 5.7 bears upon the events of February 13, 1996. The February 13,1996 Incident The United States asserts that trespass and injury to public lands occurred at Capitol Reef on February 13, 1996 — trespass and injury that Congress has vested the Secretary of the Interior and the Park Service with the constitutional and statutory power to prevent. Even if the events of February 13, 1996 may be characterized as “improvement” or even as “maintenance” of an existing right-of-way, the United States contends that any such improvement or maintenance of the Burr Trail within Capitol Reef National Park is subject to (1) the prior submission of plans for evaluation in light of NEPA and the purposes of the Park reservation, and (2) prior federal approval under 36 C.F.R. § 5.7. It remains uncontroverted that Garfield County did not request or receive authorization from the Park Service for the specific work performed on February 13, 1996. (Pretrial Order, “Uncontroverted Facts” ¶ 55.) The United States argues that the County’s widening and realignment of the Burr Trail road without prior environmental assessment or agency authorization amounts to trespass and injury to the lands of Capitol Reef National Park. Cf. United States v. King, 581 F.2d 800, 801 (10th Cir.1978) (operation of Caterpillar bulldozer by rancher and contractor beyond the existing Old Creek Trail within Capitol Reef National Park without permission may violate 36 C.F.R. § 5.7). Garfield County’s Theory of the Case Garfield County contends that it committed no trespass upon Park Service land on February 13, 1996, that all of its work on the eastern one-mile of the Capitol Reef segment of the Burr Trail road — however characterized — was “reasonable and necessary” and was performed within the scope of its R.S. § 2477 right-of-way, and that it needed no additional approval or authorization from the Park Service before commencing the work. The County seeks declaratory relief that pursuant to its right-of-way, it “may continue to maintain the boulder-to-Bullfrog highway in its discretion to meet applicable state safety standards within the existing road prism.” (County Brief at 40.) Further, the County argues, “even if the County were liable for trespass, the damages allowable in this case would not even reach $100 .... ” (Id. at 38.) The Scope of the Right-of-Way Relying on Sierra Club v. Hodel, 675 F.Supp. 594, 606-07 (D.Utah 1987), and 848 F.2d 1068, 1084-85 (10th Cir.1988), Garfield County asserts the scope of its R.S. § 2477 right-of-way is correctly measured according to Utah state law, under which it asserts an “undisputed” scope extending to — at minimum — “that which is reasonable and necessary to ensure safe travel for the established uses, including improving the road to two lanes.” (County Brief at 9.) The County asserts a scope for its right-of-way ultimately embracing “the entire beaten path,” which the County defines as “the disturbed area created by prior road construction and maintenance” (id. at 12) — a path as wide as 100 feet in some places. (Id. at 16.) According to the County, the legal extent of its R.S. § 2477 right-of-way is best defined by this “previously disturbed area,” and in any event under Hodel embraces a traveled surface not less than 24 feet wide at any point. (County Brief at 11-20.) Garfield County submits that within that scope, the County remains free to construct, improve and maintain its road as it sees fit, without Park Service approval.' (Id. at 20-32.) Pointing to earlier Utah ease law concerning highways established by use, Garfield County asserts that its right-of-way must not be “anything less than safety standards would allow over time for at least a two-lane highway.” (County Brief at 14.) Beyond the track actually made by vehicles, there must be room enough for travelers with wagons, carriages, or implements to pass each other, and for necessary improvements and repairs to be made so as to keep it in a suitable condition. The right acquired by prescription and use carries with it such width as is reasonably necessary for the public easement of travel, and where the public have acquired the easement the land subject to it has passed under the jurisdiction of the public authorities for the purpose of keeping the same in proper condition for the enjoyment thereof by the public. (Id. at 11 (quoting Whitesides v. Green, 13 Utah 341, 44 P. 1032, 1033 (1896)).) Not only does it own its Burr Trail right-of-way pursuant to the R.S. § 2477 grant, Garfield County contends it also possesses the discretion conferred by the Utah Legislature to determine what is “reasonable and necessary” to ensure safe travel upon a highway, including the making of improvements to the existing roadway. Congress having granted the right-of-way to the County, “ ‘the grant of title to the use encompassed the right to improve the right of way for its use as such.’ ” (Id. at 15 (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 156 (1946)).) Garfield County concludes that its R.S. § 2477 right-of-way is all the “agreement” or “approval” the County needs under 36 C.F.R. § 5.7 to engage in road construction in park areas without further Park Service authorization or approval. If the scope of its right-of-way is to be measured prior to the reservation of the Capitol Reef lands in 1969, Garfield County looks to the 1965 AASHTO design standards as “the best source to determine what was reasonable and necessary for a rural highway right-of-way.” (Id. at 16.) Starting with a two-lane highway as a minimum, “ ‘it is desirable to construct all 2-lane highways with 12-foot lanes and with usable shoulders 10 feet wide.’ ” (Id.) (quoting Exhibit 70, at 260.) Where two lanes “encompass 24 feet, an 80-foot minimum is suggested, with 100 feet or more deemed desirable.” (Id.) (citing Exhibit 70, at 263 (Fig.V-1).) The desirable 100-foot right-of-way width, the County submits, “is consistent with the disturbed area created in connection with the road at the western end of the park.” (Id.) In Hodel, Judge Anderson explained that “the proposed construction in this section consists of cutting and filling in order to widen the traveled sutface to a uniform 21p feet,” as well as “building an adequate road base, crowning the road surface to shed rain, installation of adequate drainage ditches, culverts and catch basins to prevent flooding, and application of a gravel surface.” 675