PUBLIC LANDS: Utah, county denied rehearing in Canyonlands roads case
Phil Taylor, E&E reporter
Greenwire: Tuesday, September 9, 2014
A federal appeals court yesterday denied a request by Utah and one of its counties to rehear their case to reopen a 9-mile road along a riverbed in Canyonlands National Park to motor vehicles, a decision that could threaten Utah's bid to claim thousands of miles of additional roads crisscrossing federal lands.
The 10th U.S. Circuit Court of Appeals said it would not revisit an April decision by three of its judges to uphold a lower court's rejection of San Juan County's claimed right of way over the Salt Creek Road.
According to the 10th Circuit judges' 28-page opinion, San Juan had failed to prove the road had been in "continuous" use in the decade prior to Canyonlands' founding in 1964 (Greenwire, April 28). That was the burden of proof San Juan and Utah had to meet to prove Salt Creek was an established "highway" under an 1866 mining law known as R.S. 2477.
Yesterday's decision is a blow for Utah, which has filed roughly 20 other similar cases claiming R.S. 2477 rights of way over 36,000 miles of roads crossing public lands, many of them also in national parks, wilderness study areas or other lands conservationists have targeted for roadless protection (Greenwire, Sept. 3, 2013).
"It should be the end of the line for the state of Utah and San Juan County's claim that the stream bottom of Salt Creek Canyon is a state highway," said Stephen Bloch, legal director for the Southern Utah Wilderness Alliance, which was joined by the Sierra Club, Grand Canyon Trust, National Parks Conservation Association and the Wilderness Society in the case opposing San Juan's claim.
Designed to promote settlement in the Western frontier, R.S. 2477 states that "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."
The law was repealed in 1976, but Congress said any valid rights of way at the time would be grandfathered in. Local governments bear the burden of proving that roads were in continuous use for a decade prior to being reserved.
Of note, the 10th Circuit in April found that the frequency or intensity of use, not just whether it was used for 10 years, is important in determining whether a road qualifies as a "public thoroughfare" under R.S. 2477.
For example, the court found that use by a single cattleman for driving cattle is insufficient, as is intermittent or occasional use by hunters, fishermen, shepherds, farmers and miners.
While ranchers herded and grazed cattle in Salt Creek Canyon beginning in 1891 and Boy Scouts, tourists, and uranium and oil and gas prospectors explored the canyon beginning in the 1950s, the canyon fell short of being a public highway, the court said.
This ruling could be relevant as the 10th Circuit takes up a separate appeal by conservationists that challenges a district court's ruling in 2013 to award Utah's Kane County rights of way over 12 of 15 roads it had claimed under R.S. 2477, four of which run through the Grand Staircase-Escalante National Monument (Greenwire, March 25, 2013).
Oral arguments in that case are scheduled for 9 a.m. MDT on Sept. 29 in Denver.
It could also affect Utah's claims in district court to more than 12,000 other roads, claims that the state argues are crucial to asserting right of access to public lands but that conservationists warn threaten some of the best remaining wilderness-quality lands in Utah's red rock country.
Utah counties took exception to the 10th Circuit's frequency finding, calling it an "urban-centric dismissal" of the rural West, where roads are less frequented than in cities but are no less important to local residents.
"It is alarming to the counties of Utah that the panel decision has manufactured a frequency-of-use component and subjugated an entire class of rural Western road users to the ranks of non-public road users," the Utah Association of Counties said in a June filing to the court in defense of San Juan. "Sparsely-populated landscapes connected by seemingly empty roads are the geographic rule, not exception, of the American West. Those roads may not have been used very often according to an urban point of reference. But that is because there was not very much population around to use them."
The 10th Circuit decision means the historic Salt Creek Road and the scenic Angel Arch at its terminus will remain accessible by foot, but not Jeeps. It's been that way since 1998, when the National Park Service blocked the route with a gate, precipitating San Juan's lawsuit.
Conservationists backed the closure, arguing that Jeeps were tearing up riparian plants, scaring wildlife and dumping engine oil in Salt Creek, one of just three perennial streams in Canyonlands.
But San Juan and the state had argued that early homesteading, cattle herding by private ranchers and sporadic exploratory trips by tourists had created a valid right of way. Shawn Welch, an attorney for San Juan, said in April that most members of the public are unable to make the 18-mile-round-trip, two-day trek to visit Angel Arch.
According to San Juan, the frequency of use is irrelevant. It argued that an R.S. 2477 claim is satisfied "when the public use is as often as the public finds convenient or necessary during the ten-year period," according to the court.
But "while the frequency of use need not be 'great,' it must be sufficient to call the road a 'public thoroughfare,'" the 10th Circuit judges said.
They also agreed with U.S. District Judge Bruce Jenkins' ruling in 2011 that cattle grazing uses were not sufficient to establish a public thoroughfare because the grazing use occurred pursuant to a federal permit.
That issue could come into play again, Bloch said.
"Some of the issues in the Salt Creek decision, especially the circuit court's ruling that use of a route by ranchers does not meet the law's requirement that the route be used by the broader public, are also at issue" in conservationists' appeal to the 10th Circuit of the Kane County decision, SUWA said.
