June 3, 2008

Circuit Court to Kane County: Go Back, Jack, Do It Again

By Christian Probasco
New West Community Blog

On May 16th, Ninth Circuit Court judge Tena Campbell ruled that Kane County did not have the right to erect 39 trail markers on roads running through the Escalante National Monument and the Glen Canyon National Recreation Area that had previously been closed by the Bureau of Land Management (BLM).

Campbell’s ruling was partially based on another District Court ruling in 2001; Southern Utah Wilderness Alliance (SUWA) v. BLM, in which it was noted:

“The established rule (is) that land grants are construed favorably to the Government, that nothing passes except what is conveyed in clear language, and that if there are doubts, they are resolved for the Government, not against it.”

Heidi McIntosh, conservation director of SUWA, one of two groups that sued Kane County for the removal of the markers, believes,

“Kane County’s placement of signs welcoming ATV use…conflicted with federal law, in violation of the Supremacy Clause of the Constitution. Also, in 2005, the county passed an ordinance that allowed motorized use of trails closed by the BLM; that is also a constitutional violation.”

The Constitution’s Supremacy Clause reads,

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Since the Passage of the Federal Land Policy and Management Act (FLPMA) of 1976, Kane County and a few other counties in southern Utah, have been debating with the Southern Utah Wilderness Alliance and other environmental groups over the meaning of practically every word in the federal Revised Statutes 2477 (RS 2477), passed in 1866:

“…the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

RS 2477 was repealed by FLPMA, but the “highways” which had been “constructed” up until then were supposed to be grandfathered in, i.e. still open for travel.

It would appear that since both RS 2477 and FLPMA, which supposedly preserved counties’ rights under the original revised statute without requiring any enhanced burden of proof, are also among the “Laws of the United States,” a ruling either way would be resolved “for the (federal) Government.” So why did Campbell side with SUWA?

State Representative Mike Noel, who will be involved in the appeal to the Tenth Circuit Court, says,

“Tena Campbell has had it in for Kane County ever since (her previous decision) was overturned by the Tenth Circuit in the most important case on RS 2477 roads since the passage of FLPMA. She somehow thinks that all roads must be adjudicated before a court before they are legal county roads.”

“Highway” also means “road” for the purposes of discounting a particular parcel of public land from wilderness consideration. And such highways, according to SUWA, also degrade the environment.

“Studies have concluded that increasing vehicle access to archaeological sites correlates with increasing levels of looting,” says McIntosh, “Additionally, vehicles run over and damage archaeological sites, especially if they’re not clearly visible. ATVs displace wildlife and, because they tend to frequent riparian areas, they also ruin wildlife habitat by polluting the water, increasing sedimentation and introducing non-native plants, and killing native plants. Riparian areas are the most important habitat in the desert.”

In a 2005 decision concerning construction work completed by several southern Utah counties on roads within the national monument, the Tenth Circuit Court decided that Utah law should be used to determine the validity of an RS 2477 claim. According to Utah law, a county can claim a road under RS 2477 if the public had used it continuously for ten years prior to 1976. The court also reversed Campbell’s earlier ruling that such roads must have been constructed by mechanical means.

The State of Utah has created a fund to help counties establish quiet title to all the roads they claim, so why isn’t Utah fighting the battle on a case-by-case basis? In one instance, the Bald Knoll Route, Kane County is doing just that. Ted Zukoski of the law firm Earthjustice, and Kristen Brengel of the Wilderness Society, the other environmental group involved in the suit, speculate, however, that the counties may also be pursuing another strategy because:

“First, federal courts will require a high burden of proof – this will require the counties to gather documentation and prove their case. Alternatively, counties can just act as though routes are theirs and attempt to manage them, that’s pretty low cost.

Second, some counties have sued the BLM over the Grand Staircase Escalante Monument plan, alleging that it is the federal government that must prove it is not infringing on county rights. This would essentially reverse the burden of proof, which now requires counties to prove their claims. If Kane and (nearby) Garfield counties win that suit, they’ll make the U.S. government bear all the time and expense of proving or disproving claims.”

The question of who actually does bear the burden of proof is central to the whole issue.

“Tena Campbell thinks that all roads must be adjudicated before a court before they are legal county roads,” says Noel, “Where she is really wrong is the fact that the (2005) Tenth Circuit Court decision said that no application for an RS 2477 road was necessary, and that neither the BLM, and certainly not SUWA or the Wilderness Society can unilaterally take away an RS 2477 road claim by the county without a court action.”

Meanwhile, according to Noel, Campbell has issued a temporary stay of her own ruling while the appeals process gets underway. And if Kane County is successful in overturning this ruling, will SUWA develop another case to bring the issue back to the Ninth Circuit Court? Don’t bet against it.