September 5, 2008

Greens can enter case over roads in Juab

State and county are suing U.S. government over ownership of roads in wilderness study area

By Patty Henetz
The Salt Lake Tribune

Three conservation organizations will be allowed to intervene in a case in which Juab County and the state sued the federal government over who owns three roads in western Utah's Deep Creek Mountains.

U.S. District Judge Tena Campbell this week granted the Southern Utah Wilderness Alliance, the Sierra Club and The Wilderness Society the right to be defendants in the lawsuit in which the state and county seek ownership of the roads.

Campbell agreed with the conservationists' arguments that they cannot rely on federal land agencies to adequately represent their defense of wilderness in cases involving a Civil War-era law known as Revised Statute 2477.

"Conservationists now will have a seat at the table on these RS2477 claims," SUWA conservation director Heidi McIntosh said Thursday. "We will be in the courthouse instead of standing on the steps with the doors locked."

But the state doesn't believe the organizations should be allowed to intervene since they had no claim of ownership at all.

"We're disappointed in the ruling," said Assistant Utah Attorney General Roger Fairbanks.

Bureau of Land Management state office spokeswoman Mary Wilson declined to comment because the lawsuit remains active.

At issue is how federally designated wilderness-study areas ought to be managed so as to preserve the special qualities of beauty and remoteness that led the BLM to list them in the first place. Roads that cross wilderness or wilderness-quality lands have become flash points in an increasingly polarized dispute.

Key to wilderness status is whether the land is roadless, which does not mean literally unmarked. Rather, the BLM in its survey of potential wilderness tracts limited study areas to those where there were no "substantially noticeable" roads.

McIntosh said the BLM wouldn't have included Tom's Creek, Granite Canyon and Trout Creek canyon roads in wilderness-study areas had they been well-established. Further, she said, they are not part of the state's transportation highway network.

Fairbanks said SUWA was assigning a modern definition to a 19th-century highway statute. Back in 1866, he said, there were no paved roads.

"Highways were wagon trails," Fairbanks said. "These roads are part of Juab County's highway system."

The roads, he added, are definitely noticeable.

Utah doesn't want to pave them, Fairbanks said.

But they should remain open to Snake Valley residents who have used them for generations to reach favorite camping or picnicking areas.

What is RS2477?

Revised Statute 2477, part of an 1866 mining law, granted rights of way across public land until it was repealed by Congress in 1976. When that happened, existing rights of way were grandfathered in. The definition of "existing" was at the heart of a 2005 10th U.S. Circuit Court of Appeals ruling that said the U.S. Bureau of Land Management must defer to state law when assessing counties' road-ownership claims. Under Utah law, existing roads are those that had 10 years of continuous use and county maintenance before 1976. Continuous-use claims now must be decided road by road in federal court.