By Amy Joi O'Donoghue
Deseret News
SALT LAKE CITY — A legal team from Utah is traveling to remote areas throughout the state, recording testimony from aging witnesses and filming panoramic views of roads that snake through canyons or cross sagebrush-peppered lands.
The information is being compiled for the state's legal fight against the federal government in which it filed 22 lawsuits in 2012 that have since been consolidated into one case.
In a briefing recently given to a committee of lawmakers, Kathleen Clarke said there is some urgency in getting depositions from witnesses because they are aging.
"Some of these folks are our best witnesses," said Clarke, who is director of the Governor's Public Lands Policy Coordination Office. "Not knowing how long it will take or if any of these cases will ever be heard in court, we have an awfully long line of witnesses to get through."
Clarke said that as part of the requirement that the state prove that the roads existed and had 10 years of use prior to 1976, the legal team is also filming the roads.
"We are filming so the judge won't have to get into a Jeep and drive down these roads."
The roads in question are what's called RS2477 roads — named after a statute enacted in 1866 to promote settlement of the western United States by granting rights-of-way to states and counties for transportation.
The statute was repealed by the Federal Land Policy and Management Act, but that action was subject to "valid existing rights," giving rise to an interpretation by Utah and other Western states that the federal government can't forbid access.
Negotiations with the Department of Interior over title to the roads have lingered for years, finally propelling contentious legal battles in which Utah has alternately been victorious and suffered defeat.
One such loss was access to Salt Creek Road in Canyonlands National Park, which the state and San Juan County contend was illegally closed by the National Park Service.
Harry Souvall, public lands section chief for the Utah Attorney General's Office, said the case has been heard on appeal by the 10th Circuit Court of Appeals, with a decision to be released later this year.
The Salt Creek Road, he told lawmakers, is a good example of why many of the disputed roads are critical for economies of rural counties in Utah.
"Park service attendance and tourism in San Juan County were dropping and it's because people can no longer drive to see Angel Arch. It is now a nine-mile hike to get in there to see it. A lot of people can't do a nine-mile hike in sand to see anything, let alone this gem," he said.
The National Park Service has maintained the road was closed to motorized traffic because it was a streambed that was suffering from environmental degradation.
Souvall said the state has another RS2477 case stemming from a Kane County road dispute that is likely to be heard before the 10th Circuit as well. Together, the two cases have the potential to bring clarity and certainty to the issue.
"There's still that question on what we can or cannot obtain," he said.
The state's efforts have been resoundingly criticized by multiple environmental groups that argue its quest for title to the roads is a costly, irresponsible battle that will only lay waste to pristine landscapes.
"I am sort of shocked when I hear it is 12,500 roads and the largest litigation effort in the state," said Heather Bennett, with For Kids and Lands, an education coalition. "It comes back to the question of what is the best use of resources in this state."
The Southern Utah Wilderness Alliance in particular asserts the state wants "roads to nowhere" that are often narrow deer trails or traverse slick rock vistas.
But Souvall said nearly all the 12,400 roads that are part of the consolidated lawsuit have been vetted through a process that includes historical aerial imagery.
"A road that is closed is going to look like a deer trail," he said.
To support its documentation that the roads were used for a decade or more, Souvall said a legal team has been taking testimony from aging witnesses to preserve the historical record.
"In another case, we had taken a bunch of witness statements from 2000 to 2002. In 2009, when we were going through those statements, we found that approximately 40 percent of our witnesses were either dead or incapable of testifying. We lost almost half our witnesses."
The state struck an agreement with the Department of Justice to take 225 "preservation" depositions from witnesses who are 70 years or older who have health conditions and from witnesses age 80 and older.
"They may not be here to testify in live court," he said, adding that two of the witnesses are more than 100 years old.
To prepare the witnesses, Souvall's legal team takes them out on the road in question to see how much they remember. A Google Earth-style camera also captures a 360-degree view of the road as part of the state's documentation.
"Some of them know over 200 roads and some of them are over age 80," he said. "It is impossible to expect them to remember the details if we don't do this."
The process of gathering the preservation depositions is expected to take the full two years that make up the agreement, he added.
"It is a large effort," he said. "The process is designed to be as efficient as possible while still preserving the testimony of witnesses due to poor health or age."
One lawmaker questioned Souvall about that effort and why the state is pursuing claims to the roads in the wake of such criticism.
He mentioned a road in Uintah County that offered a breathtaking view of surrounding scenery.
"It's a stunning vista. You see people camped there. I don't know how you put a price on Scouting trips, family reunions and everyone being able to go there, from grandpa to infants," he said. "Once it is our right, our road, it is much more difficult to close that road. The fact that it is ours does not mean it will be abused."