PUBLIC LANDS: Judge rules for Utah county in fight over roads crossing federal tracts
Scott Streater, E&E reporter
Published: Monday, March 25, 2013
A federal district judge in Utah ruled last week that a dozen dirt roads -- including four running through Grand Staircase-Escalante National Monument -- may remain open to the public in a decision hailed by the state as a major victory.
The 121-page ruling by U.S. District Judge Clark Waddoups was in response to a 2008 lawsuit by Kane County in southern Utah that sought to keep open to the public 15 roads crisscrossing 89 miles of federal land in Utah.
At issue are claimed rights-of-way easements on the 15 roads under a Civil War-era mining law known as Revised Statute 2477, which allows state and local governments to file such claims for the purpose of providing access to mining and homestead claims.
Congress repealed the 1866 law when it adopted the Federal Land Policy and Management Act in 1976, which today governs lands managed by the Bureau of Land Management and grants the agency ownership of roads that cross federal land. However, roads built and maintained by state or local governments across unreserved lands before the enactment of the 1976 act remain covered by R.S. 2477.
Utah and its counties have long argued that roads are crucial conduits for residents and that they should not have to obtain permission for motorized access or to perform maintenance or upgrades.
Waddoups ruled that the 12 roads in question were "historic" and that Kane County did have a valid claim under R.S. 2477.
"These rulings clearly show these historic public roads have and will continue to belong to the people of Utah," Utah Attorney General John Swallow (R) said in a statement. The state of Utah joined the Kane County lawsuit in 2010.
"This is the first of many anticipated legal victories that will confirm that the federal government's refusal to recognize these roads as state and county roads is not legally justified," Swallow said. "The federal government's refusal has damaged the economy and put motorists at risk because the state and counties were unable to conduct routine maintenance to repair their own roads."
Utah Gov. Gary Herbert (R) hinted that the Kane County ruling could help open up thousands of miles of dirt roads and trails crossing federal land that the state and numerous counties maintain should remain accessible to the public.
"This victory clearly demonstrates that Utah's historic public roads belong to the people of Utah," Herbert said in a statement. "We now hope this ruling motivates all stakeholders to work together to resolve our other public road cases."
The Southern Utah Wilderness Alliance, which had tried to intervene in the lawsuit but was granted only friend of the court status, said it wasn't surprised by the ruling after attending the hearings before Waddoups.
"It seemed pretty clear where the judge was headed," said Steve Bloch, a SUWA attorney in Salt Lake City.
Bloch said he is "very confident" the Justice Department will appeal to the 10th U.S. Circuit Court of Appeals.
Bloch said he's more concerned with the roughly 30 lawsuits filed by the state and 22 counties that claim 14,000 rights of way covering 35,000 miles of dirt roads and trails, even stream bottoms, across public land.
"Taken together, this tsunami of litigation threatens several national parks and monuments as well as iconic Utah wilderness landscapes," he said.
The issue is an important one for the Obama administration as well as for some members of Congress.
A coalition of 44 House Democrats and one Republican last summer sent a letter to Interior Secretary Ken Salazar urging his agency to vigorously fight Utah's attempt to claim state control over the thousands of roads crisscrossing federal lands (E&ENews PM, July 26, 2012).
Similar cases in other parts of the country have ended in the federal government's favor.
Last summer, Judge Anthony Ishii of the U.S. District Court for the Eastern District of California dismissed the last of a state county's claims to four roads running through Death Valley National Park (Greenwire, June 7, 2012).
That same month, San Bernardino County in Southern California agreed in a settlement with Interior to grant sole authority over a series of contested public roads running through the Mojave National Preserve to the National Park Service (E&ENews PM, June 8, 2012).
The county originally claimed rights-of-way easements on 14 roads through the national preserve under R.S. 2477.
