January 28, 2008

Utah governor stakes a claim on roads

The idea is to keep the byways open for energy drilling and recreation

By Patty Henetz
The Salt Lake Tribune

Federally posted closure signs on roads that cross federal land in Utah have prompted the Governor's Office to invoke state laws to keep them open. (Associated Press file photo)

Employing a 2-year-old state law for the first time, the Governor's Office is claiming ownership of roads that cross federal lands as a way to keep them open to off-highway recreation and oil and gas drilling.

The maneuver, which relies on a bill sponsored by Kanab Republican Rep. Mike Noel that passed during the 2003 and 2006 legislative sessions, could be a tidy way to skirt federal law.

Or it could set up yet another expensive series of courtroom fights and ratchet up the New West's already intractable civil war over wilderness and access to some of Utah's most beautiful wildlands.

The state law allows counties to record the roads on their master land documents. Federal agencies, organizations and other members of the public have 60 days to protest the action in state court. If no one protests, the county assumes ownership of the right of way.

In its first action under the 2006 Noel bill, the state's Public Lands Policy Coordination Office has sent a list of 60 Class B roads to Box Elder County for recording, and will do the same with 23 more counties by mid-summer, said coordinator John Harja. Salt Lake, Weber, Davis and Cache counties have opted out of the program, and Morgan County doesn't have any affected public lands, he said.

"We're recording [our] belief we have a property interest," Harja said. "We are putting the [U.S. Bureau of Land Management] and the rest of the world on notice."

Heidi McIntosh, conservation director for the Southern Utah Wilderness Alliance and an attorney, expressed some wariness about possible legal precedents the state's new efforts could set. During 2006 House floor debate, Rep. Jacki Buskupski, D-Salt Lake City, called the bill an "open invitation to further litigation."

Glenn Carpenter, manager of the BLM's Salt Lake City field office, acknowledged the arguments but wasn't keen to be drawn into the politics of the state's action.

Carpenter was a defendant in a federal court case filed by an OHV group, the Utah Shared Access Alliance, over his decision to close portions of Box Elder County to OHVs in 1999 to protect critical deer and sage grouse habitat. Shared Access Alliance, defeated in district and appellate courts, tried again with the U.S. Supreme Court, but the court refused the case.

Carpenter said he was aware of the 60-road list Harja's office sent to Box Elder County in mid-December, but had no plans to protest. Besides, he said, the U.S. government is sovereign. "We're bound by federal law," he said.

For now, the lists focus on Class B roads, which are graded, graveled, open to general use and generally noncontroversial. Harja said he expected to have all the B roads by mid-summer, and then start on Class D roads.

That's when hostilities between wilderness advocates, energy developers and OHV users could erupt in court, McIntosh said.

Class D roads - which include recognizable two-tracks, but also meandering livestock paths, abandoned pathways oil and gas drillers once used for seismic exploration and even narrow trails across creeks - are the real front lines in the access war, she said.

"People are going to be furious," McIntosh said. "What's driving this is wilderness. That's something the counties have long tried to fight."

Wilderness designation depends in part on the public lands' roadlessness. In opposing wilderness, counties point to generations of driving the disputed byways as a way to continue motorized access on federal lands.

Road claims rest on Revised Statute 2477, a Civil War-era mining law that granted rights of way across public land. Congress repealed the law in 1976, but grandfathered in existing claims. In 2005, a federal appeals court ruled that such ownership claims were dictated by state law. In Utah, that means proving the road was in continual use for 10 years prior to 1976.

The counties have gotten road-claim help from the state, which through the now-defunct Constitutional Defense Council and now the Public Lands Policy office, has spent $9.6 million since 2001 in legal and other fees on road claims, according to Harja. The money, allocated by the Legislature, comes from royalties paid on oil and gas drilling on state land.

Even though public money has supported the Public Lands office's information gathering, and even though the information is being used in both federal lawsuits and the state claims on behalf of the counties, Harja's office won't make the work public before the lists are sent to the recorders. And under a confidentiality agreement crafted in 2000, participating counties are forbidden from sharing the information with the public.

Such evidence was part of a federal lawsuit seeking ownership of old roads across federal land in six rural counties that the state recently withdrew.

Roger Fairbanks, the assistant attorney general who oversees R.S. 2477 claims, said the state abandoned Utah v. United States because the six Class B roads at issue in Beaver, Box Elder, Emery, Uintah, Washington and Wayne counties weren't really threatened with closure.

SUWA agrees with the decision, but will continue to fight the state's federal lawsuits to claim roads in Canyonlands National Park, the San Rafael Swell and the Deep Creek Mountains.

Fairbanks said the state doesn't seek to bulldoze the areas. "We don't want to destroy the environment," he said. "On the other hand, we don't think roads should be closed."

In the west desert Deep Creek Mountains, Snake Valley residents want to drive in Granite Canyon, where about a mile of the road is in a wilderness study area near Ibahpah Creek.

"All the locals want to do is open the road to Camp Ethel," Fairbanks said.