May 16, 2008

Judge orders Kane County to remove road signs in Grand Staircase-Escalante National Monument

By Judy Fahys and Joe Baird
The Salt Lake Tribune

Cottonwood Canyon Road in Grand Staircase-Escalante National Monument

Kane County's ongoing bid to claim ownership of roads in the Grand Staircase-Escalante National Monument and surrounding federal lands suffered a serious, and perhaps fatal, blow today.

U.S. District Court Judge Tena Campbell ruled that the placement of 39 county road signs in the monument is illegal because it violates the Supremacy Clause of the U.S. Constitution - which declares that federal law trumps state and local law. She ordered the county to remove the signs in the next 20 days.

"By placing signs within the monument, the county has encouraged, sanctioned and facilitated public motor vehicle use of federal lands that [the Bureau of Land Management] officially closed to protect the monument's values," Campbell wrote in her 33-page decision, issued late this afternoon. " . . . the county's signs create a direct conflict with federal land management directions, in violation of the Supremacy Clause."

At least for now, the case settles a five-year-old tussle between conservation groups and the county, which basically invited off-road traffic on trails in protected areas of the monument, the Glen Canyon National Recreation Area, the Moquith Mountain Wilderness Study Area and the Paria Canyon-Vermillion Cliffs Wilderness Area.

Campbell said the county must first prove in court that it has rights-of-way in those areas before directing vehicles over wildlands controlled by federal agencies, including the BLM and the National Park Service.

"Certainly, the county correctly notes that federal land management agencies must manage the land without disturbing 'valid existing rights,' " Campbell wrote. "But this truism does not help the county, as the court has already found that the county has not established any valid existing rights."

Kane County claimed the roads under RS 2477, a Civil War-era mining law that granted rights-of-way across public land. The law was repealed by Congress in 1976, but existing claims were grandfathered in, leading to numerous disputes.

A landmark 2005 ruling by the 10th Circuit Court of Appeals declared that state law - in Utah, 10 years of continuous use prior to 1976 - is now the standard for counties to claim ownership of roads. But Campbell ruled that Kane County must first prove its claims meet the continuous use standard.

Kane County's attorney, Shawn Welch, said county officials will need to analyze the ruling before deciding how to proceed.

"We're reviewing the decision and considering our options," Welch said. But the county, he added, "believes it is complying with the law."

Efforts to reach Kane County Commissioner Mark Habbeshaw, who has spearheaded the road ownership fight, were unsuccessful.

The Wilderness Society and the Southern Utah Wilderness Alliance, the groups that filed suit over the Kane County roads, applauded the ruling.

SUWA attorney Steve Bloch said it "confirms a basic point of law that continues to escape the county" that federal law trumps state and county law on federal public lands.

"You can't go out and rip up federal signs contrary to the Supremacy Clause," he said. "Saying you have a right of way doesn't make it true. You have to prove [a claim to a road]; you have to prove it in court."