PUBLIC LANDS: Utah scores court win as it tries to take over federal roads
Scott Streater, E&E reporter: Greenwire: Friday, April 10, 2015
The state of Utah has scored a major victory in its ongoing efforts to claim ownership of thousands of roads crossing federal lands, with a federal judge's decision this week to put the brakes on a lawsuit that challenges the state's legal right to the roads.
The Southern Utah Wilderness Alliance and Michael Abdo, a Toole County, Utah, resident, last year filed a state lawsuit claiming that a 2012 federal lawsuit by Utah and the county to claim more than 700 roads covering about 2,400 miles -- some of which run across congressionally designated wilderness areas -- is illegal. They said the Utah Attorney General's Office did not have the authority to sue the federal government.
Among the key issues raised in the SUWA lawsuit is that the state missed a statute of limitations deadline to claim title to the roads in question in Toole County, where 82 percent of the county is federally owned land.
The outcome of the SUWA-led lawsuit could have a significant impact statewide, as the Utah Attorney General's Office is involved in more than two dozen lawsuits filed in 2011 and 2012 against the United States claiming more than 14,000 roads on federal lands covering 35,000 miles.
The state of Utah is claiming the rights of way on federally owned land under a Civil War-era law known as R.S. 2477. The obscure law allowed miners and homesteaders to build trails or roads over any public lands not yet reserved or claimed for private use. Congress repealed it in 1976, though it said pre-existing R.S. 2477 rights must be honored.
But U.S. District Judge Clark Waddoups, who is overseeing the dozens of R.S. 2477 cases across Utah, ruled this week that the SUWA lawsuit in state district court cannot move forward because it could threaten the federal court's jurisdiction over those cases.
If SUWA prevailed on its claims in the state court that Utah had missed the seven-year statutory deadline, then Waddoups would be bound by the state court decision, and the cases pending before him in federal court would be dismissed.
The Utah Attorney General's Office last month filed a court motion asking Waddoups to issue an injunction permanently barring the SUWA-led lawsuit in state court from proceeding.
Waddoups, who had not issued a written order by publication time, decided to approve a temporary injunction this week against the lawsuit in state court during a formal hearing in Salt Lake City. The judge is still considering the state's permanent injunction request, which would essentially prevent the state court case from moving forward.
Utah Assistant Attorney General Tony Rampton said Waddoups made the right decision.
"This really belongs in federal court," Rampton said. "The law we're dealing with is federal law. The jurisdiction under the Quiet Title Act, which is the only way the state can enforce the 2477 rights of way, is in federal court. For SUWA to file a state court action, which is a blatant effort to circumvent the jurisdiction of the federal court, is unwarranted, and that is what Judge Waddoups recognized."
The Utah Legislature during this year's session approved a bill repealing the seven-year statute of limitations as it applies to the federal Quiet Title Act, such as the R.S. 2477 claims.
Stephen Bloch, a SUWA attorney, said the group is considering appealing Waddoups' decision in the 10th U.S. Circuit Court of Appeals in Denver.
"This is an important issue that we have in state court, raising state law claims that the attorney general exceeded his authority and acted contrary to law when he filed the R.S. 2477 cases, and is spending millions in taxpayer dollars doing so," Bloch said. "We think that the state court is a proper place for taxpayers and groups like SUWA to raise these issues, and we are going to press ahead to have these issues decided in state court."
The state of Utah has been particularly aggressive in asserting states' rights on federal lands.
Gov. Gary Herbert (R) signed legislation in 2012 demanding federal transfer of public lands to the state of Utah.
The issue of control over the roughly 14,000 miles of roads crossing federal lands in the state has been particularly controversial.
Indeed, Utah's claims to roads under R.S. 2477 represent a potent legal bid to assert state control over federal lands. Conservation groups have fought the claims tooth and nail, noting that many of the roughly 36,000 miles of routes crisscross sensitive wilderness study areas, national parks or other public lands they've proposed remain roadless (E&ENews PM, Dec. 2, 2014).
Rampton said it's time for the issue to be resolved once and for all.
"They've been pending now for decades. And it's in everyone's interest to have these issues resolved on the merits," he said. "That is what the federal court did in issuing this order, is to ensure that these road claims will be resolved on the merits."
