Colorado’s mountain towns say it’s not about banning outsiders. But “if you have yet to realize we are in unprecedented times, then you are either not paying attention or are a denier,” San Juan County’s sheriff says.
More resorts are banning uphill traffic as skiers flock. And as a second snowy weekend approaches with the entire state now under stay-at-home orders, more health departments and sheriffs are following that lead with both orders and requests to limit outdoor activity by visitors from afar.
San Juan County Sheriff Bruce Conrad on Saturday took the closures an extra step. He limited access to 220,000 acres of federal land to the roughly 700 residents of the one-town county. He joins the Southeast Utah Health Department as the only two jurisdictions to close public lands to everyone except locals.
But there’s a snag in those protective orders prodded by health officials and intended to stop the spread of COVID-19 in — and to — rural areas where local hospitals could easily be overwhelmed: Federal land policy prohibits limiting access to a select few.
In times of an emergency or public safety issue, like a wildfire, high avalanche danger or an accident, local authorities can and do temporarily suspend all access to public lands.
“I don’t think anyone would have a problem with that type of closure. But this seems to be an effort that quite explicitly discriminates against people who are not from the local area,” said Mark Squillace, a professor of natural resources law at the University of Colorado Law School in Boulder.
The March 16 order by the Southeast Utah Health Department closed restaurants, coffee shops and bars with prohibition of sit-down service in the tourist-reliant Carbon, Emery and Grand counties. It also closed theaters, venues and overnight lodging, noting that the three counties “are surrounded by virus activity.” In the section closing overnight and short-term lodging facilities, the order said only “primary residents” and “essential visitors” who were working in the counties “may utilize public lands for primitive camping purposes.”
The Southeast Utah Health Department has received one appeal to the order, relating to the prohibition of groups larger than 10 and the order’s requirement that remote camps be at least 200 yards apart, department spokeswoman Brittany Garff said.
The Federal Land Policy and Management Act allows federal land managers to give local officials the power to enforce federal laws on public lands — like prohibiting illegal hunting and fishing, for example — but it does not let local officials craft their own rules. Allowing locals but not visitors from other states raises “some serious constitutional issues,” Squillace said, pointing to the “dormant commerce clause” that prevents state or local governments from discriminating against citizens from other locations.
“It’s going to be interesting to see if anyone challenges this. If the counties are challenged here, they likely will not prevail,” Squillace said.