By Brian Maffly
The Salt Lake Tribune
A federal appeals court on Monday affirmed a tough standard for what constitutes a county road, spurring the state to urge Utahns to come forward if they have memories of hunting or hiking on disputed routes decades ago.
To prevail in a road claim, a three-judge panel of the 10th Circuit Court of Appeals unanimously held in April, counties should demonstrate actual use by the general public, not just use that was "necessary or convenient" for a handful of people or by ranchers moving cows.
Monday’s ruling denied Utah’s request to have the full court reconsider that decision.
The April ruling rejected San Juan County’s highway claim up Salt Creek Canyon in Canyonlands National Park. At issue was a 12.3-mile unimproved route that threaded in and out of a creek bed draining the park’s Needles District.
But the 10th Circuit’s logic could extend to the thousands of other road claims pending against the federal government in Salt Lake City’s U.S. District Court.
Wielding a frontier-era law known as RS 2477, the state is seeking title to 66-foot rights-of-way on 36,000 miles of what rural counties claim are vital transportation corridors.
Opponents, however, say many of these contested routes appear to be marginal two-tracks.
Besides signaling a victory for federal control of such "roads," this ruling fills a gap in case law regarding RS 2477, according to Heidi McIntosh, a lawyer for the nonprofit law firm Earthjustice
"They closed the door on claims which cite no more than random prospector use or ranchers using the route pursuant to a permit. That’s important. Thousands of the claims before the court are claims just like Salt Creek," said McIntosh, who filed amicus briefs in the case opposing San Juan County’s right-of-way claim.
The Denver-based 10th Circuit on Sept. 29 will hear arguments on another major RS 2477 case, one involving about a dozen routes in Kane County.
The 2013 ruling by U.S. District Judge Clark Waddoups in that case was mostly a defeat for the federal government, which is appealing.
The state and county are appealing aspects of Waddoups ‘s decision that hinder the larger roads cause, which is among the costliest legal undertakings ever pursued by Utah officials.
A stable of lawyers, most on the taxpayers’ dime, have been touring the state in recent months, taking "preservation" depositions of elderly and infirm witnesses whose testimony is needed to establish road use decades ago.
These people are not expected to still be alive years from now when these cases actually land before a judge.
To gain title to a right-of-way, counties must demonstrate 10 years of "continuous use" prior to the 1976 passage of the Federal Land Policy and Management Act, which repealed RS 2477.
For Salt Creek, that use had to have occurred prior to 1964 when Congress established the national park.
The Salt Creek and Kane cases are among Utah’s four "active" roads lawsuits, which are intended to resolve questions of law common to most of Utah’s 14,000 road claims.
However, this most recent ruling leaves the definition of "continuous use" to the discretion of trial judges, according to Tony Rampton, public lands section director for the Utah Attorney General.
"Our objective was to have the Court solidify the test for public user, and it is unfortunate that the Court did not avail itself of this opportunity," Rampton said in a prepared statement.
"This ruling increases the importance for members of the public who used the roads prior to 1976 for hunting, camping, sight-seeing and other general public uses to come forward with their testimony to assist in the presentation of the evidence in cases involving R.S. 2477 roads."
State officials have long held that these contested rights-of-way are crucial to economic prospects and quality of life for rural counties. Environmentalists dismiss such framing as a "red herring," arguing the state’s hidden goal is to disqualify large swathes of undeveloped land in southern Utah from wilderness protection.