April 17, 2009

Call off the fight

Counties should accept court ruling

Salt Lake Tribune

It's time for Kane and Garfield counties to quit wasting Utah taxpayers' money chasing a court ruling they have been repeatedly denied.

Kane County argued before U.S. District Judge Bruce Jenkins in 2007 that the federal Bureau of Land Management should recognize what the county called "valid existing rights" to roadways within the Grand Staircase Escalante National Monument.

Jenkins ruled that county officials had not proven the rights of way under state law and the BLM is not required or authorized to recognize county road claims.

Last year U.S. District Judge Tena Campbell told Kane County it had no authority to remove BLM signs limiting motorized vehicles on roads the county claims in the monument. Now a three-judge panel of the U.S. Court of Appeals has affirmed Jenkins' ruling in an appeal brought by the counties against the U.S. Department of Interior and the BLM.

The counties have said they have valid claims to the rights of way under a 2005 federal judge's ruling that made state law the standard for deciding ownership of roads on federal land. But state law dictates that each and every road claimed under RS2477, the Civil War-era mining law that gave local governments the right to build roads over federal lands, must be proven in court.

When RS2477 was repealed in 1976, the repeal contained a grandfather clause protecting "existing rights of way." Utah law requires proof of "continuous use and maintenance" for 10 years prior to 1976 on each road claim.

Kane and Garfield want to sidestep the requirement by forcing the BLM to recognize their claims. But their repeated unsuccessful attempts to get the courts to agree, financed by taxpayer money, have got to stop.

What the courts are saying is really not that hard to understand: Local governments and people in Jeeps and all-terrain vehicles don't have an unfettered right to use public land any way they choose. And they can't get away with misinterpreting the law to claim access to public lands that belong to every American, not only those who happen to live nearby.

The BLM has a mandate to protect the public's lands while allowing people to use it for a variety of purposes. The national monument is protected because of its scenic, recreational and archaeological value. Access to the land must be limited in order to maintain those values.

Roads with longtime value to local residents for transportation can be "grandfathered in," but only by a court.