September 1, 2010

Kane County Wins First RS 2477 Road

by Morgan Skinner
KCSG News Kcsg Television

(L-R) Kane County Commissioners Mark Habbeshaw, Daniel Hulet, Doug Heaton with State Representative Mike Noel (R-Kanab) next to recently erected RS2477 road sign on Skutumpah road. (Kane County photo)

(Salt Lake City, UT) - Kane County has achieved what is believed to be the first concession in Utah of the federal government agreeing to grant rights-of-way to a disputed road that crosses federal land.

The court stipulated change allows the county to assert control and access over 27 miles of the 33-mile Skutumpah road, a road leading to Cannonville within boundaries of the Grand Staircase-Escalante National Monument.

The victory comes as a result of a stipulation made by Department of Justice attorneys that could pave the way to resolve such disputes through negotiation, rather than litigation.

State Representative Mike Noel (R-Kanab) said this shows that the process can be simple and easy if the federal government cooperates in cases like these where you have roads that are easily determined to be the roads used and maintained within the county.

RS 2477 public highway rights-of-way were granted to states and counties from 1866 to 1976 to facilitate the settlement of the West. The Federal Land Policy and Management Act of 1976 repealed the statute but established "RS 2477" roads were grandfathered as valid existing rights-of-way.

In 1997, Interior Secretary Bruce Babbitt directed his department agencies to ignore RS 2477 rights-of-way prompting controversy and conflict. The Bureau of Land Management (BLM), an agency of the Department of Interior, closed and/or restricted numerous county roads across the West claiming that RS 2477 rights must be “determined” before the agency would validate existing rights-of-way. Since then the Department of Interior has avoided validating any RS 2477 road rights-of-ways.

For the last two years in federal court, the Department of Interior has denied Kane County had any rights-of-way to the Skutumpah Road. It informed the public, however, that Kane County should maintain it.

Kane County petitioned the court for an expedited hearing to validate the county's rights-of-way because of failure by BLM to maintain the Skutumpah road resulting in public safety hazards along the roadway.

In Monday's stipulation, the Department of Interior validated Kane County's rights-of-way for most of Skutumpah road. The court order stipulated Kane County has the jurisdiction to properly maintain, repair and manage the Skutumpah road as it has historically done.

Kane County filed a motion for summary judgment on July 22, 2010 with the court quieting title to Kane County’s RS 2477 public highway rights-of-way for eight roads which include:

1. The Mill Creek road, designated as Kane County road K4400 and including segments known as the Tenny Creek road K4410 and the Oak Canyon road K4405;

2. The Bald Knoll road, designated as Kane County road K3935;

3. The Skutumpah road, designated as Kane County road K5000;

4. The Sand Dune road, designated as Kane County road K1000;

5. The Hancock road, designated as Kane County road K1100;

6. The Swallow Park/Park Wash road, designated as Kane County road K4360.

7. The North Swag road, designated as Kane County road K4370; and

8. The Nipple Lake road, designated as Kane County road K4290.

These roads have long been Kane County public thoroughfares, the petition said, and continue to provide needed access from private and public lands to cities, schools, stores, places of employment, and recreational areas within Kane County. Where these eight roads cross public lands, the rights-of-way were granted by Congress through RS 2477. RS 2477 was an express grant of rights-of-way, the filing states.

Attorneys for Kane County, Janna B. Custer and Shawn T. Welch, said in their filing that the undisputed facts demonstrate Kane County’s acceptance of the express grant for the eight roads by showing at least ten years of continuous public use prior to October 21, 1976. The undisputed facts also demonstrate Kane County’s acceptance of the express grant through designation of these roads as Class B – County General Highways and/or Kane County’s improvement, maintenance, or repair of these roads at Kane County’s and the State of Utah’s expense.

Monday's concession by the federal government was prompted by the dangerous conditions of the unmaintained Skutumpah road which the Department of Justice attorney’s claim Kane County hasn't fully documented as used and maintained prior to October 21, 1976. Six-miles of Skutumpah road remain in dispute.