High court calls road claim 'completely nonsensical'

RS2477 • Utah Supreme Court finds state road claims have not run out of time, allowing litigation to proceed.

By Brian Maffly
The Salt Lake Tribune

In a pivotal ruling for Utah's legal battle to control thousands of routes crossing federal land, a divided Utah Supreme Court has held that these road claims have not run out of time under an obscure state law.

Joined by the Southern Utah Wilderness Alliance, federal lawyers had argued the statute in question barred "quiet-title" claims after seven years, meaning that Utah's claim to more than 12,000 routes covering 35,000 miles would have been extinguished as long ago as 1983.

Chief Justice Matthew Durrant wrote that such a result would be "absurd" and deviate from whatever lawmakers intended when they passed the relevant law, known as a statute of repose.

The United States' arguments "would effectively deprive the State of its" claims to thousands of routes — including some that may have existed and been used for decades, Durrant wrote in the ruling handed down Thursday.

The high court called such a result "completely nonsensical" and "so overwhelmingly absurd that no rational legislator could ever be deemed to have supported" it.

Durrant was joined by Justices Christine Durham and Deno Himonas.

A ruling the other way, in favor of the federal government's stance, could potentially have put an end to the litigation involving 22 separate lawsuits, one for each Utah county seeking title to these routes within their borders.

Utah Attorney General Sean D. Reyes applauded the ruling, calling it a "common-sense decision" that re-invigorates the road claims asserted under RS2477, a now-repealed frontier-era statute that gave counties rights of way to roads they cut across the public domain in an effort to encourage development in remote areas of the West.

Some of these disputed roads are important thoroughfares, but environmentalists say many are obscure tracks that serve no purpose other than to justify counties' efforts to push roads and motorize access into lands proposed for wilderness.

"The Court correctly recognized the absurdity of the federal government's arguments, which have now added two years of delay and taxpayer expense to the State's efforts to obtain the title to roads that federal law has long promised," Reyes said. "I hope the Court's decision convinces the United States now to work collaboratively and quickly with Utah and its Counties to resolve these title claims."

But the court's dissenters rejected the idea that the federal government's interpretation would have produced an absurd result, or even an uncommon one.

Appellate judges Frederic Voros and Kate Toomey sat in for Justices John Pearce and Thomas Lee, who had recused themselves from the case. While concurring with much of the majority opinion, Voros's dissent called it "the most expansive application of the absurdity doctrine in American law."

Voros noted that the allegedly absurd result actually reflects prevailing law nationwide from the passage of the Mining Act in 1866 until the passage of the Quiet Title Act in 1972.

"If that rule of law in fact mandated absurd results, surely in 106 years some court somewhere would have noticed," Voros wrote. "Yet no party cites, nor am I able to discover, any court questioning the rationality of the rule of law that we today declare absurd."

Thursday's ruling allows lawyers to get back to the arduous task of litigating the validity of the state's road claims that have been stewing in U.S. District Court since 2011. The state must demonstrate each road was open to public travel for 10 continuous years prior to 1976 — when the Federal Land Management and Policy Act was passed, repealing RS2477.

Cook introduces bill to empower counties

Rep. Paul Cook, R-Apple Valley

Victor Valley Daily Press
Staff Reports

Rep. Paul Cook, R-Apple Valley, this week introduced HR 4313, the Historic Routes Preservation Act.

This bipartisan bill provides an administrative means for the federal government to confirm rights-of-way on public lands administered by the Departments of Interior and Agriculture. One of the only means a county has to confirm a right-of-way is to file a quiet title action in Federal District Court, an expensive and time-consuming process.

After 39 years, many county records have been lost, old maps have been thrown away and witnesses to many roads’ presence and use prior to 1976 are passing on. The Historic Routes Preservation Act solves this problem by creating an administrative process for counties to resolve these rights of way without going to court. It applies only to existing travel routes and does not create new roads on public lands.

Utah Supreme Court request could have big implications for state's bid to claim roads on federal land

Road claims » Clarification of statute could shape counties’ ownership petitions

Rancher Chris Odekerken poses for a portrait along K2825 on his property on Glendale Bench Wednesday May 8, 2013. (Chris Detrick | The Salt Lake Tribune)

By KRISTEN MOULTON
The Salt Lake Tribune

Three federal judges are asking the Utah Supreme Court to clarify the meaning of a short section of Utah law that has big implications for counties' claims to roads criss-crossing federal lands.

Counties, joined by the state, have filed more than 20 federal lawsuits in recent years, trying to get control of more than 35,000 miles of roads or road segments under a Civil War-era statute known as RS2477.

On Friday, though, U.S. District Judges David Nuffer, Clark Waddoups and Robert J. Shelby sent an order to the Utah Supreme Court asking, essentially, whether Utah law bars the lawsuits.

The Southern Utah Wilderness Alliance, an intervenor in the federal cases, argues that the Utah Code has a seven-year "statute of repose" that means any lawsuits making a claim to the roads had to be filed by 1983, seven years after RS2477 was repealed in 1976.

The first of the lawsuits was not filed until 2011.

The federal judges write in their order that "If SUWA's assertion is correct, then the R.S. 2477 Road Cases pending before this court would be barred."

But if the code is interpreted as a "statute of limitations," the seven-year clock may not have begun ticking until the counties discovered they were injured by federal action to close the roads, according to case law cited in the order.

The federal judges ask the Utah Supreme Court to answer this question of law: "Are Utah Code 78B-2-201(1) and its predecessor statutes of limitations or statutes of repose?"

It's not clear how soon the Supreme Court will take up the question. In an apparent response to SUWA's challenge, the Utah Legislature this winter passed a bill, retroactive to 1972, specifying that the statute of limitations doesn't apply in cases involving claims against the federal government for real property. HB401 was sponsored by Rep. Mike Noel, R-Kanab.

Last week, Waddoups took the unusual step of issuing a temporary restraining order to block a state judge from hearing a lawsuit involving Tooele County's RS2477 claims.Tooele County resident Michael Abdo and SUWA filed the lawsuit in 3rd District Court last summer.

Waddoups agreed with state attorneys that it was an "end run" around his jurisdiction in Tooele County's federal case, pending since 2012.

Judges seem skeptical of U.S. in high-stakes Utah road dispute

 PUBLIC LANDS

Kane County, Utah, R.S.2477 road claims.

Phil Taylor
E&E / Greenwire

DENVER -- A federal appeals court yesterday appeared skeptical of the federal government's claims that a lower court had wrongly awarded a Utah county and the state rights of way over desert roads in a case with possible ramifications for Utah's larger bid to assert control over federal lands.

But the three-judge panel of the 10th U.S. Circuit Court of Appeals offered few hints as to whether it would uphold a district court's decision in March 2013 to award southern Utah's Kane County rights of way over 12 of 15 roads it had claimed, four of which run through the Grand Staircase-Escalante National Monument (Greenwire, March 25, 2013).

It's a high-stakes case for Utah, whose counties have staked claims over some 12,000 roads spanning about 36,000 miles over federal lands under a Civil War-era mining law, as well as conservation groups, which note that many of those routes crisscross sensitive wilderness study areas, national parks or other public lands they've proposed remain roadless.

The 10th Circuit's ruling on the Kane case could offer legal precedent for how Utah, counties, the federal government and conservation groups negotiate resolution on thousands of other roads.

Yesterday's proceeding featured oral arguments by Department of Justice attorney David Shilton and Kane County attorney Shawn Welch.

At issue are Kane's claims to 15 roads crossing some 89 miles of federal lands under an obscure 1866 law known as R.S. 2477 that allowed miners and homesteaders to build trails or roads over any public lands not yet reserved or claimed for private use. Utah and its counties can gain title to R.S. 2477 roads if they can prove they were in continuous use for at least 10 years prior to the law's repeal in 1976.

Utah argues the law is a critical bulwark against federal decisions to block access to public lands, but conservation groups see it as one of the greatest threats to preserving wilderness-quality lands in Utah's red rock country.

U.S. District Judge Clark Waddoups last year said Kane successfully proved its case for 12 of the roads. While some are noncontroversial, the North Swag route, which Kane won, cuts through the Paria-Hackberry wilderness study area, which BLM recognized for its roadless characteristics and which environmentalists have eyed for future wilderness designation.

Both Kane County and the United States appealed the decision to the 10th Circuit, but for different reasons.

Kane and Utah argued that Waddoups was wrong to require them to prove the validity of R.S. 2477 claims by "clear and convincing evidence," rather than a lower burden of proof, and had incorrectly ruled that a public water reserve issued by President Coolidge in 1926 precluded R.S. 2477 claims.

DOJ's Shilton argued that the district court had no jurisdiction to decide R.S. 2477 claims for the Sand Dunes, Hancock and Cave Lakes roads because they had never been closed to use and therefore created no "dispute" for the court. It also claimed Waddoups had awarded rights of way widths for North Swag, Swallow Park/Park Wash and Skutumpah roads based on current, rather than 1976, uses.

The judges pressed Shilton to explain the government's first argument over jurisdiction. While the roads remained open, legal title was still in dispute.

Shilton argued the Bureau of Land Management, which oversees the tracts, has to take "some affirmative action" to trigger the court's involvement. "The United States has never closed access to those roads," he said. "You need a real dispute."

But Judge Gregory Phillips, an appointee of President Obama, said that line of reasoning could allow "decades and decades and decades" to pass without a resolution of Kane's claims. He said the government stands to benefit from delays because it makes it harder for Utah to prove R.S. 2477 claims.

In addition, Judge Robert Bacharach, another Obama appointee, pressed Shilton to defend the government's claim that Waddoups had wrongly awarded right of way widths for uses that didn't exist in 1976, such as for heavier agriculture vehicles. Bacharach spoke to a need to maintain the "current day's standard of safety."

The third judge, Paul Kelly, was appointed by President George H.W. Bush.

Panel skips enviro arguments

Notably, the panel didn't discuss arguments raised by environmental litigants in the case including the Southern Utah Wilderness Alliance, Wilderness Society, Sierra Club, Grand Canyon Trust and National Parks Conservation Association.

Those groups argued in friend-of-the-court briefs that Waddoups had failed to consider that a 12-year statute of limitations had expired for the North Swag route, making the county's claim for that route invalid.

They also argued that historical use of alleged R.S. 2477 roads by adjoining landowners, ranchers and others who enjoyed privileged access should not have counted in the Kane County case, nor in any of Utah's other road claims winding their way through the courts.

"It's disappointing," said SUWA attorney Steve Bloch. "There were significant issues that could have steered this hearing in a different direction."

Bloch noted that the 10th Circuit in April had concluded in a separate R.S. 2477 case involving the Salt Creek road through Canyonlands National Park that "proprietary use" of a road doesn't count for determining a valid right of way.

"This is one of the key take-aways from the Salt Creek decision," Bloch said. "This alone could be a basis to send this entire case back to Judge Waddoups."

Conservationists had hoped that finding would come into play in the Kane case yesterday, but it didn't.

Shilton did not raise this point before the court and declined to be interviewed after the arguments.

Welch said the merits of the Salt Creek case should not apply in the Kane case. Unlike Salt Creek, the Kane roads connect other roads and their use was less in dispute, he said.

In the Salt Creek case, the court also had ruled that frequency or intensity of use, not just whether it was used for 10 consecutive years, is important in determining whether a road qualifies as a "public thoroughfare" under R.S. 2477. For example, use by a single cattleman for driving cattle is insufficient, as is intermittent or occasional use by hunters, fishermen, shepherds, farmers and miners, the court said.

This issue also did not come up yesterday.

Feds charge five Utahns in Recapture Canyon protest ride

Recapture » San Juan Commissioner Lyman organized the event in May to protest federal control of public lands

ATV riders cross into a restricted area of Recapture Canyon, north of Blanding, Utah, on Saturday, May 10, 2014, in a protest against what demonstrators call the federal government’s overreaching control of public lands. (AP Photo/The Salt Lake Tribune, Trent Nelson)

By Brian Maffly
The Salt Lake Tribune

Federal authorities are accusing a San Juan County commissioner and a handful of protesters of conspiracy and illegally riding ATVs into southeast Utah’s Recapture Canyon in May.

The Bureau of Land Management closed the canyon to motorized use in 2007 to keep wheels off its many archaeological sites. About 50 riders motored into the canyon following a May 10 rally in Blanding denouncing federal "overreach" and mismanagement of public lands.

But only those suspected of organizing or promoting the illegal ride were targeted in charges announced Wednesday by acting U.S. Attorney Carlie Christensen.

The charges allege that Commissioner Phil Lyman, a Blanding accountant and a vocal critic of BLM policies that inhibit access to public lands, "advertised" the ride through a newspaper article and social media.

"We respect the fact that the citizens of this State have differing and deeply held views regarding the management and use of Recapture Canyon, and recognize that they have the right to express those opinions freely. Nevertheless, those rights must be exercised in a lawful manner and when individuals choose to violate the law, rather than engage in lawful protest, we will seek to hold those individuals accountable under the law," Christensen said in a prepared statement.

During the week leading up to the ride, BLM state director Juan Palma warned would-be protesters that their actions could damage cultural sites, which are protected under federal law, and said illegal riders would face legal consequences. Ancestral Puebloans who lived in the canyon until 800 years ago left artifacts, dwellings and graves.

The five defendants, all current or former San Juan County residents, were charged with "operation of off-road vehicles on public lands closed to vehicles" and conspiracy, offenses that carry up to one year in jail and $100,000 in fines.

None was charged with damaging archaeological sites, but prosecutors said the investigation remains open.

The defendants include Monte Wells, Shane Marian, Franklin Holliday and Jay Redd. The men are ordered to appear Oct. 17 before U.S. Magistrate Evelyn Furse.

Redd, who now lives in Santa Clara, is the son of the late James Redd, the Blanding physician who took his life five years ago after his arrest in an BLM investigation into artifacts trafficking.

Ruling sticks: Salt Creek not a county highway

RS 2477 fight » Tenth Circuit Court of Appeals affirms narrow view of what constitutes “public use.”

The Salt Creek/Horse Canyon road in the Needles District of Canyonlands National Park flooded Oct. 5, 2011. (Canyonlands National Park)

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.

Courtroom defeat won't stop Utah in roads fight

By Amy Joi O'Donoghue
KSL.com

SALT LAKE CITY — The state of Utah and San Juan County may have lost a key fight over access to a road in Canyonlands National Park, but the roads war being waged against the U.S. government is far from over.

On Friday, the 10th Circuit Court of Appeals ruled that Utah and San Juan County failed to prove that Salt Creek Canyon Road was a "public thoroughfare," meaning the road remains off-limits to their rights-of-way claims under a Civil War-era statute.

“It would be mistake to consider this decision limiting us from going forward in our other road cases,” said Harry Souvall, public lands section chief for the Utah Attorney General's Office. He added that the decision provides clarity on such issues as statutes of limitations, but does not shut down the state and counties' case in claims to 12,000 other roads.

In their ruling, justices rejected the state's argument that uninterrupted periodic use over a 10-year period was sufficient to establish a claim to the dirt road — and therefore access by motorized vehicles.

"The state and county failed to carry their burden of establishing 10 years of continuous public use of the Salt Creek Road as a public thoroughfare prior to (establishment) of the Canyonlands National Park in 1964," the opinion read.

It would be mistake to consider this decision limiting us from going forward in our other road cases.
–Harry Souvall, Utah AG's office

The Southern Utah Wilderness Alliance hailed the ruling as key to protecting valuable natural resources within Canyonlands.

"For Salt Creek Canyon, it is a great decision," said Steve Bloch, attorney with the organization. "It means the only perennial stream in the park outside the Green and Colorado rivers will remain protected from signficant adverse impacts of motorized travel."

The issue

At issue is the question of motorized use of an unimproved 12.3-mile road that is intertwined with a creek bed in Salt Creek Canyon. The state argued that periodic historic use by cattle ranchers, uranium miners and tourists was enough to elevate the route to claims under the so-called RS2477 statute.

Before the 1995 implementation of a backcountry management plan for the park, access to the road was unrestricted and then modified to a permit-system only.

At that time, the Southern Utah Wilderness Alliance challenged the park service's decision to keep the road open, arguing that continued motorized use of the trail ruined the perennial stream and posed risks of damaging prized archaeological resources in the area.

By 2004, the park service decided to lock the gate on the road, prompting the lawsuit by San Juan County and the state, which claimed its historic use over the years constituted status as a roadway or public thoroughfare.

The state pointed to grazing uses in the late 1880s or early 1890s that gradually increased through the 1950s, uranium mining and exploration in the 1950s, and uses of the canyon by Boy Scouts and tourists beginning as early as the 1950s.

Supporters of preserving access, including the Utah Shared Access Alliance and the Blue Ribbon Coalition, also argued that the road is the primary route for tourists to reach several scenic sites within the park, including Angel Arch.

While the state argued that no "particular frequency" was required under the claim as long as there was no formal interruption of access by the federal government, the court disagreed in its Friday decision, upholding the ruling of the U.S. District Court for Utah.

"While we agree uninterrupted use is necessary, it is not alone sufficient to demonstrate the existence of a public thoroughfare for purposes of RS2477," the court said. "The intensity of public use remains a component in determining the existence of a public thoroughfare."

Important for upcoming cases

Bloch said the Salt Creek ruling helps to flesh out important case law for other road claim cases to come.

"This ruling is another piece of the puzzle in figuring out what types of claims are not sufficient," he said. "We are going to continue to scrutinize it closely and rely on it to defeat similar claims that stream bottoms and cow paths and other dirt trails are highways."

Bloch predicted that the ruling may come into play with another case in Kane County that is also on appeal before the 10th Circuit and scheduled to be heard in September.

There are only 14,000-plus more claims to go. The state has a long, hard road to hoe if they are going to continue this push.
–Steve Bloch, SUWA attorney

"There are only 14,000-plus more claims to go," he said. "The state has a long, hard road to hoe if they are going to continue this push."

Souvall, however, stands by the distinction that the state should only have to prove "available" use over a 10-year period, and frequency need not come into play in a legal claim for the right of way. However, he added, the state is developing evidence of "frequency of use" in other road cases to meet the standard.

That nuance in the argument may prompt a request for an en banc hearing by the full panel of judges to weigh the merits of the state's claims to Salt Creek Road.

Utah is in its second year of an all-out battle over access to roads or routes in 22 of its 29 counties. In 2012, the claims were consolidated into one lawsuit against the U.S. Department of Interior over RS2477 roads, which were part of a transportation network established via an 1866 law to foster movement in the West.

While the statute has since been repealed with the adoption of the Federal Land Management Policy Act, the state's and counties' rights of way to roads that already existed were grandfathered in.

Utah County Reaches Road Settlement with Federal Government

Alyssa Carducci
Heartland Institute

Utah state and local officials reached a landmark settlement with the federal government to open access to roadways once closed due to a federal wilderness study area. The agreement could serve as a model for claims on thousands of other roads Utah counties have presented against the government.

Juab County, the Utah Attorney General’s Office, and the federal Bureau of Land Management filed a joint consent decree in the U.S. District Court in Salt Lake City, which requires approval by a federal judge.

State Will Enforce Restrictions

The settlement gives Juab County ownership of three dirt roads accessing the Deep Creek Mountains. The three roads are Trout Creek, Granite, and Toms Creek roads.

The BLM agreed to remove fallen trees blocking the roads and turn them over to Juab County. State and local officials agreed to ban motorized vehicles between December and May each year and strictly enforce a ban on off-road motorized vehicle traffic in the wilderness study area. State and local officials can repair the dirt roads but must leave them in their “primitive” state. The agreement prohibits paving, improving, expanding, and performing routine maintenance on the roads.

Juab County also agreed to abandon some of its right-of-way claims in the wilderness study area as part of the settlement.

Model for Future Settlements

“Today’s agreement serves as a model for resolving road disputes going forward. We can find ways to agree, and I applaud the county and all stakeholders for proving this approach can work,” said Gov. Gary Herbert in a statement. “My hope is that we will continue to work to resolve RS2477 disputes.”

Utah counties have filed an additional 29 lawsuits against the federal government, encompassing more than 12,000 miles of roads. State officials plan on additional lawsuits regarding an additional 24,000 miles of roads.

Statute Recognized Rights of Way

A nineteenth century statute, known as R.S. 2477, granted the state ownership of roads crossing federal lands. The statute granted states and counties rights-of-way across federal lands to meet transportation needs during the 1800s. Congress repealed the law in 1976 but recognized state ownership of all roads the state could prove state residents regularly used for 10 years prior to repeal of the law. The federal government and environmental activist groups have vigorously challenged the state’s road-use claims.

Parties Express Support

Three environmental activist groups participated in the negotiations and signed on to the settlement agreement.

“Conservation groups have been permitted to intervene in several of these cases and are actively working to defend the United States’ title to these claims,” Southern Utah Wilderness Alliance legal director Stephen Bloch said in a statement.

State Rep. Roger Barrus (R- Centerville) told Environment & Climate News the road settlement will benefit Utah residents and protect their access to recreation areas.

“If Juab County leaders and our state public lands officials are comfortable that the agreement is in the best interest of the citizens of Juab County, our state and nation, then it's a good decision. It's the kind of decision that could be made more easily and pragmatically if the lands were under state ownership and management rather than burdened by red tape in a litigious federal system,” Barrus said.

Barrus sponsored H.B. 142, which he said is “designed to gather credible information in a report to reflect economic trends and management practices of public lands under federal control. With that information, Utah can better project how to best manage those lands for the benefit of the public and the citizens of our state.”

“The whole idea of transferring federal public lands to Utah is to improve how they are managed,” he added.

Learning to bend: Settling Utah's road wars

BOOK REVIEW

By Ed Marston
High Country News

Roads in the Wilderness: Conflict in Canyon Country
Jedediah S. Rogers
242 pages, hardcover: $39.95.
University of Utah Press, 2013.

Some fear that we will saddle our children with trillions of dollars in federal debt. That would be too bad, but it would be a minor inconvenience compared to what our forefathers cursed us with: the 1866 federal law known as R.S. 2477. Like other such gifts -- including the 1872 Mining Law -- R.S. 2477 lays a heavy, destructive, expensive hand on the present.

The statute's 19 words said that anyone who wished to could build a public "highway" across the West's public land. That highway could not be extinguished by the later creation of a homestead, a national park or even a wilderness.

R.S. 2477 was repealed in 1976, but its highways -- sometimes nothing more than rough trails made by cowboys herding cattle -- are still being fought over in the West. That is especially true in Utah, where the state has launched 30 federal lawsuits to establish 36,000 miles of mechanized rights of way through existing wilderness, national parks and monuments, and wilderness study areas.

Into this expensive, litigious mess bravely comes the young historian Jedediah S. Rogers. With Roads in the Wilderness: Conflict in Canyon Country, Rogers attempts to connect two warring ways of life. He asks us to look at roads not only as physical structures but as symbols of culture and history. In Rogers' telling, the Mormons of southern Utah regard the primitive roads their ancestors pioneered as comparable to the naves of medieval cathedrals. To interfere with the public's ability to travel them amounts to sacrilege. But to those who favor wilderness, the sacrilege is motorized travel through red-rock canyons and riparian areas.

Rogers humanizes the conflict over wilderness by portraying some of the people most involved. He is sympathetic both toward Edward Abbey, author of Desert Solitaire and The Monkey Wrench Gang, and toward Abbey's nemesis, uranium miner and Lake Powell resort developer Calvin Black, immortalized by Abbey as the character "Bishop Love."

Abbey hated roads -- the better the road, the more he hated it -- and the reservoir he called Lake Foul. Black appreciated Lake Powell because it also served as a highway, and so loved roads, writes Rogers, that he assumed the 1960s slogan "Black is Beautiful" referred to pavement.

Given the area's bitter history -- which includes the Grand County commissioners repeatedly, and feloniously, sending bulldozers into Moab's Negro Bill Canyon to "refresh" the disappearing road -- what could bring the two sides to the table now?

Partly it is the passing of generations; both Black and Abbey are gone, for example. And partly it is exhaustion from decades of expensive struggle.

But it may also be fear of the future: Utah could win its R.S. 2477 cases, or President Barack Obama might unleash the 1906 Antiquities Act, as President Clinton did at Grand Staircase-Escalante, and create de facto wilderness. Or both events might happen, further complicating what is already a mess.

Rogers' book is both perfectly timed and a sign of the times, appearing as Utah Congressman Rob Bishop seems to be progressing toward a two-state solution in Utah, with some public land being protected and some now-protected land being opened to development.

Although the book is well-timed, it isn't always well-written, and it lacks clear maps to illustrate chapters about the road wars in places like Arch Canyon and the Book Cliffs.

While Rogers lacks the partisan passion of an Abbey or Black, he has passions appropriate to this time: for compromise and the merging of interests. He believes that if the two sides were to bend a little, each would win more than they could by defeating the other in Congress or the White House or the courts.

He urges environmentalists to see desert homesteads, mine shafts, abandoned orchards and even roads as part of a landscape shaped by humans but still dominated by nature. He quotes environmental historian Bill Cronon, who has written that the exclusion of man's works from nature is dehumanizing.

And he asks southern Utah's Mormon residents to acknowledge that the heroic pioneer days, when wagon trains were lowered to the Colorado River by rope down the Hole in the Rock notch, are over. We have blasted an interstate highway through the San Rafael Swell and turned parts of the Colorado, San Juan and Escalante rivers into ponds. Progress now, Rogers argues, is not demonstrated by how much more nature we can bulldoze, but by how much we can refrain from conquering:

"In a country -- a world -- that is increasingly developed one acre at a time, we need these places to keep us rooted. The (Colorado Plateau) region is one of the few places where large tracts of wildlands exist."

County gives up Mojave Preserve roads

San Bernardino County no longer will handle their upkeep, which will now be the domain of the National Parks Service

The National Park Service will take over a dozen San Bernardino County roads in the Mojave National Preserve.

BY IMRAN GHORI
Press-Enterprise

San Bernardino County turned over about a dozen roads in the Mojave Preserve to the National Parks [sic] Service this week, fulfilling one of the requirements in a legal settlement it agreed to last year.

The county sued the federal government in 2006 over its rights to the roads because county crews had been maintaining them for decades before the preserve was created as part of the 1994 Desert Protection Act.

In the settlement last year with the Department of Interior and three conservation groups, the county agreed to give up its claims to the roads. In turn, the federal government agreed to maintain them and keep them open.

The Board of Supervisors formally approved the agreement at its Tuesday, Sept. 10, meeting.
Environmental groups had backed the settlement, saying it would keep the roads open while also protecting desert tortoises, bighorn sheep and other sensitive species along the routes in the eastern Mojave Desert.

County officials were concerned about the federal agency maintaining the roads, some of which cross private lands, and on which many residents rely.

Don Holland, special assistant to Supervisor Robert Lovingood, whose 1st District includes the preserve, said a separate agreement with the federal agency fully protects county residents. The road must be kept to a “commercially viable” standard, he said.

Lovingood was out of town this week but Board Chairwoman Janice Rutherford read a statement from him at Tuesday’s meeting saying that his office plans to work with the county Public Works Department in monitoring the terms of the agreement.

“It is important to ensure that the identified roads that will be transferred to the National Park Service remain open and accessible to all residents and visitors,” Lovingood said in the statement.

Utah counties want to take the roads less traveled -- and keep them

The Island Park Road, which descends 17 miles through sagebrush and pinyon and juniper trees before ending on the banks of the Green River, is one of more than 12,000 roads Utah has claimed under R.S. 2477. (Photo by Phil Taylor.)

Phil Taylor
Greenwire

DINOSAUR NATIONAL MONUMENT, Utah -- A bullet-riddled sign in Utah's pinyon-juniper desert warns of a winding highway ahead.

It's a harbinger of the tortuous political and legal fight among Utah's counties, environmental groups and the Bureau of Land Management that could dramatically change management of the area's stark deserts, red rock canyons and backcountry lands.

Key witnesses say they remember Island Park Road being used by jeeps and trucks at least as far back as the 1950s for livestock operations, farming, fishing and other recreation.

That, according to an 1866 mining law, means management of the road rightfully belongs to Utah, not BLM or the National Park Service, over whose land the road crosses.

The 17-mile road, which winds past ranchlands and American Indian petroglyphs to a historical ranch along the Green River in Dinosaur National Monument, is one of more than 12,000 roads that Utah and its counties last year claimed as their own in federal district court.

Spanning about 36,000 miles, the road claims represent one of Utah's boldest bids yet to assert control over federal lands and, according to conservationists, the most serious threat to Utah's remaining wildlands.

Utah claims the roads at stake have been used for decades by hunters, cattle ranchers, mineral speculators and motorized vehicle enthusiasts, and have either been shut down or restricted, or are in danger of closure by the federal government.

"There will be economic benefits derived from these roads if they're kept open," said Anthony Rampton, Utah's assistant attorney general and lead litigation counsel for the roads lawsuits. "That benefit will come from ranching enterprises, oil and gas development, wind development, solar development, tourist income, hunting and fishing income."

But unlike similar campaigns by Utah to "take back" federal lands through eminent domain or by hamstringing federal law enforcement agents, the law appears to be on Utah's side in its road battle.

In March, Utah's Kane County claimed a major victory when a federal district judge awarded it rights of way over 12 of 15 roads it had claimed, four of which run through the Grand Staircase-Escalante National Monument (Greenwire, March 25). Some of those 89 miles also run through the Paria-Hackberry wilderness study area, which BLM recognized for its roadless characteristics and which environmentalists have eyed for future wilderness designation.

"Given the facts that we have and the law, we're going to be able to prove the vast majority of these roads," Rampton said of the state's Revised Statute 2477 claims, which are located in 22 of its 29 counties. "It shouldn't have been a surprise to anyone."

The ruling was a shot across the bow for conservationists who fear the road claims, if successful, would fragment Utah's best remaining backcountry, including scenic national parks and monuments. Solitude would be lost, invasive weeds would spread and archaeological sites would be exposed to looters, they say.

Conservationists have assembled a legal team of more than 25 attorneys from national and local law firms to work alongside federal attorneys against the state's claims.

Steve Bloch, conservation director for the Southern Utah Wilderness Alliance, said a majority of Utah's road claims are primitive dirt tracks, not the "highways" that the 1866 law aimed to protect.

"The overwhelming majority of these routes simply noodle out into the desert," Bloch said.

The claims run through every national park except Bryce Canyon and Arches and through at least two designated wilderness areas and would fragment habitat for vehicle-skittish elk and sage grouse, according to SUWA.

The road claims also travel more than 500 miles of wilderness study areas, 2,000 miles of national monuments and 3,600 miles of proposed wilderness, SUWA said. Few of them lead to grocery stores or schools or promote commerce, Bloch said.

"They're really out to thwart congressional wilderness designation," he said. "That's why the stakes are so high in Utah."

Barring a settlement, the legal battle promises to be a costly one -- one rural county in southeast Utah has already spent $1 million litigating a single road in Canyonlands National Park -- and could easily last decades.

"If we can't resolve them ourselves amidst negotiation, we have no choice but to go to court," Utah Gov. Gary Herbert (R) said in an interview. "I'm not willing to continue to kick the can down the road and put off getting that answer."

If Utah prevails, experts say other Western states could follow suit, kicking off an even larger battle.

'Short, sweet and enigmatic'

Utah's road claims -- filed in several massive complaints in spring 2012 -- fall under an obscure 1866 mining law designed to promote settlement in the Western frontier.

"And be it further enacted," R.S. 2477 read, "that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."

The law was "short, sweet and enigmatic," according to the 10th U.S. Circuit Court of Appeals in a 2005 ruling.

The law was an opportunity for miners and homesteaders to build trails or roads over any public lands not yet reserved or claimed for private use. Most of the roads in the West were established under its authority.

As Utah's Supreme Court noted more than 80 years ago, "It was a standing offer of a free right of way over the public domain," which required no formal acceptance or approval by the federal authorities.

That all changed in 1976 when Congress repealed R.S. 2477 as part of the Federal Land Policy and Management Act, a watershed law that directed BLM to retain and preserve its lands rather than dispose them for private development.

But Congress grandfathered any valid R.S. 2477 right that existed at the time.

As a result, counties seeking legal recognition of their R.S. 2477 claims must prove -- through historical records, photos or witness testimony -- that the roads were used as far back as the 1960s.

But witnesses who can testify to using the roads are getting old and dying, creating a sense of urgency for Utah counties.

"We've probably lost between half and three-quarters of our witnesses to death," Rampton said. "We're losing more every day."

The state is currently deposing hundreds of "at-risk" witnesses in courthouses, schools, county commission chambers, BLM offices and people's homes.

"'I killed my first buck here. We corralled cattle here,'" Rampton said. "That's the kind of detail we're able to get from these witnesses."

Last month alone, attorneys from the Justice Department, Utah and its counties, and SUWA visited Tooele, Garfield, Beaver, Grand and San Juan counties to take testimony from 10 witnesses.

Pete Steele, a 76-year-old witness from San Juan, testified for three days on roughly 100 roads. Steele, a former cattle rancher, tour guide, BLM employee and San Juan employee, said he used R.S. 2477 roads south of Canyonlands for livestock operations, hunting, predator control, hiking, and other recreation and traveling, according to his affidavit.

"When you spend time with the people who live and work on these roads and have lived there all their lives, you realize they are important, and they're important for intangible reasons," Rampton said. "For instance, there are a lot of hunters who use these roads. They have places they've gone all their lives. They've gone with their fathers and grandfathers and families. Traditions have built up around the use of these roads."

'The whole thing is a travesty'

But critics of Utah's claims say the vast majority of the roads are so-called Class D routes that have never been maintained and aren't critical to the state's transportation needs.

Many were created by off-roaders, oil and gas prospectors or wanderers who left the trodden path decades ago. In the arid desert, where plants and shrubs take hundreds of years to regrow, an improvised two-track can take centuries to fully restore itself.

"People argue about the meaning of the word 'highway,' but it's hard to imagine it means a random oil and gas seismic line from the '60s that hasn't been driven except once every five years," said Kevin Walker, a SUWA volunteer who lives in Moab and works for Microsoft. "To me that seems like abusing the law."

On a searing hot July day, Walker hunted for R.S. 2477 claims along Browns Hole Road, a dirt route that heads east from U.S. 191 toward the La Sal Mountains.

"See that faint line over there?" he asked, pointing to a strip of younger, lighter sagebrush that vanished into a hillside.

It was an oil and gas seismic line, one of thousands that were carved in the 1950s and '60s by prospectors who used dynamite to locate mineral deposits. San Juan County is claiming it under R.S. 2477.

"They were never planning on coming back," Walker said of the prospectors, who are said to have been paid by the mile. "Someone else comes along and sees the tire tracks and tries the road, even though there's nothing there."

Wearing a blue bucket hat, running shorts and sandals, Walker said he takes pride in finding the faintest R.S. 2477 claims. He mapped many of these routes decades ago while taking an inventory of roadless lands for the Utah Wilderness Coalition, of which SUWA is a member.

He said many of the counties' R.S. 2477 routes were even fainter when he first walked them 15 years ago. Since the lawsuits were filed, counties have systematically driven all the routes, he said.

"When the counties claim they need these roads, it's disingenuous and demonstrably false," he said. "What they really want is to control the land."

Once an R.S. 2477 claim is granted, BLM has almost no way to close them down, even if it needs to preserve them for wildlife or quiet recreation. It effectively precludes future wilderness.

"These are federal lands, and the federal government should be able to manage them in a rational way and not encumbered by this loophole in a very ancient law," Walker said. "To me, the whole thing is a travesty."

A handful of other R.S. 2477 road claims spur haphazardly from the Browns Hole Road. One of them narrows into a rocky trough before petering out into the juniper and pinyon flats.

In the late 1990s, Grand County decided to increase the miles of Class B roads in its system to prevent a reduction in state subsidies for road maintenance, Walker said. It unilaterally bladed minor roads and unmaintained jeep trails, he said, but "BLM didn't have the guts to stand up to them."

Several miles south of here, the R.S. 2477 battle is playing out at Hatch Point, a sagebrush plateau coveted by oil and gas and potash developers as well as SUWA and the Sierra Club, which have proposed including the land in a 1.4-million-acre Greater Canyonlands National Monument.

A 22-mile paved road takes visitors to the Needles Overlook, which offers miles of stunning views over labyrinth red rock canyons underneath Canyonlands park.

Hatch Point has plenty of dirt roads, though the area's dense brush, rock buttes and spires make them hard to see. San Juan has staked dozens of R.S. 2477 claims here.

One of them leads to a dried-up stock pond and a field of invasive cheatgrass and Russian thistle. It fades a couple of hundred yards into the desert before disappearing.

"It just goes out here and dies," said Liz Thomas, an attorney for SUWA. "It doesn't circle back. It wasn't intended to go anywhere."

Court-awarded road claims would make the area an easier target for mineral development and potentially a weaker candidate for a national monument.

'A wasting kind of witness'

Roads support San Juan's mineral economy -- oil, gas and mining account for 60 percent of its tax base -- but they also preserve recreation, said John Fellmeth, who helps run the county's roads preservation project.

San Juan claimed roughly 1,800 roads in its R.S. 2477 lawsuit, even though some have never been driven by county officials.

"It looks like there might be a nice overlook," Fellmeth said, pointing to a narrow rust-colored dirt path at Hatch Point.

He was joined by Nick Sandberg, the county's public lands coordinator who previously worked more than 30 years at BLM's Monticello field office, which oversees Hatch Point.

Neither was sure where the road went or what it was used for.

It likely provided access for livestock growers, Sandberg said, pointing to a salt block on the side of the road that may have nourished cows or sheep.

The road ended at the plateau's edge, where a dirt clearing offered sweeping views of Heart Canyon nearly a thousand feet below and the "six shooter" pinnacle -- a sandstone spire named by early cowboys for its resemblance to pistols. The jagged rocks of Canyonlands could be seen in the distance.

The road certainly led somewhere, though whether it is a "highway" is a matter of dispute that will be decided by a federal judge.

Fellmeth said there are about 80 "at-risk" witnesses in San Juan. Some testify on as many as 60 roads in a day, he said.

"Most of them are fairly old, and even those who are still with us, their mental faculties are deteriorating quite dramatically," he said. "It's a wasting kind of witness."

Critics have questioned whether witnesses in their 70s or 80s could accurately identify the roads they used when Lyndon Johnson was president.

Before they testify, witnesses are driven on the roads by the state's attorneys to "refresh their recollection," said Bloch, the attorney from SUWA.

Courts will have to wrestle with issues of credibility, as they do with all trials.

From the Needles Overlook at Hatch Point, Fellmeth pointed to an airstrip about a thousand feet below that may have been used to transport oil and gas equipment to the Lockhart Basin.

Visual clues like that can help orient R.S. 2477 witnesses, Fellmeth said.

However, they can also be deceiving. Less than a mile away is a similar airstrip with similar red rock surroundings.

'We have a high card'

County officials in Utah see R.S. 2477 as a potent defense against the president's use of the Antiquities Act to designate national monuments.

The 1906 law is controversial in Utah, where President Clinton designated the 1.9-million-acre Grand Staircase-Escalante National Monument in 1996 over the objections of local officials. Monuments bar future mineral claims.

R.S. 2477 adds another twist to Utah's political mine field.

"It just gives the counties an extra card to play that they haven't had in the past," said Lynn Jackson, a councilman for Grand County, whose economy depends heavily on mountain bikers, off-highway vehicle riders and national park visitors.

"We know we have a high card," Jackson said. "For now, we're just going to tuck it up our sleeve, and if we need it, we'll play it."

Utah counties were politically emboldened by Kane County's R.S. 2477 victory, Jackson said. Grand and five other counties are currently negotiating with conservationists and other stakeholders on a major public lands bill.

"SUWA is concerned," Jackson said. "If we take all these 12,000 segments, they're saying 'Holy crap, we're likely to lose all that ... maybe we should negotiate.'"

Jackson, who formerly worked for BLM for 32 years, opposes the proposed Canyonlands National Monument, which he argued would hamper oil and gas and potash development in Grand, stifling economic diversification.

On a recent drive through the butte-marked desert lands northwest of Moab, Jackson pointed to a sandy, riparian wash passable only by motorcycles that descends to an overlook above the Green River.

The path, an R.S. 2477 claim, was kept open in BLM's travel management plan, even though conservationists wanted it closed, Jackson said. The county believes it should have the final say over who uses the road.

"That's a huge draw to the motorized recreation economy," he said. "They're the ones who spend the most money around here."

A spreading fight?

Litigating all of Utah's R.S. 2477 roads to the 10th Circuit could take well over a decade and cost billions of dollars.

"Obviously it's kind of insane to try to litigate 12,000 roads," said one top Interior official who asked not to be named. The first Kane County case, which involved 15 roads, took nine days of trial and field trips, the official said.

The hope is that as cases are decided at the appellate court level, parties will have a better foundation for settlement talks.

Since March, a handful of cases in Garfield, Kane, Emery and San Juan counties have been active. Meanwhile, the state is continuing to depose its old and infirm witnesses in case the rest of the roughly 20 cases become active.

While conservationists have criticized the state's lawsuits as a waste of taxpayer money, the R.S. 2477 campaign is widely supported in the Utah Legislature, where lawmakers earlier this year passed a special appropriation to compensate counties for legal services from outside firms including Holland & Hart. The firm is estimated to have provided at least $1.8 million in services to Kane County alone, The Salt Lake Tribune reported in March, citing former BLM Director and Utah public lands official Kathleen Clarke.

Under the plan, the state would pay for half of the first $700,000 in legal bills a county incurs and would pay the majority of bills beyond that.

Conservationists are skeptical whether the federal government will adequately represent their interests.

According to SUWA's Bloch, conservation groups have twice as many attorneys working on R.S. 2477 cases than the Justice Department. Pro bono work is being provided by law firms Kirkland & Ellis LLP, Cooley LLP and Jenner & Block LLP, he said. There are also two local Salt Lake City firms, former Earthjustice attorney Robert Wiygul, and SUWA and Wilderness Society attorneys working on the cases.

The federal government's appeal of the Kane County case to the 10th Circuit was heartening, Bloch said.

Utah counties have lost some notable R.S. 2477 cases too.

For example, a federal district judge in 2011 rejected San Juan County's claim that several miles of Salt Creek Canyon in Canyonlands National Park was an R.S. 2477 route. "A jeep trail on a creek bed, with its shifting sand and intermittent floods is a by-way, but not a highway," wrote U.S. District Judge Bruce Jenkins (Land Letter, June 2, 2011).

San Juan and Utah appealed the case to the 10th Circuit, which could issue a decision any day.

Utah's R.S. 2477 claims are being closely watched by environmental attorneys as well as other Western states looking to loosen Washington, D.C.'s reins over public lands.

The Vermont Law School included Utah's road claims in its "Top 10 Environmental Watch List 2013," warning that if federal courts affirm even a fraction of the state's claims, it could set off a cascade of threats to national parks, wilderness study areas, monuments and other protected lands across the West.

"Other western states are likely watching Utah's land grab, waiting to see what the federal courts will do with these 26 claims," wrote Hillary Hoffmann, a professor at the law school, and student Sara Imperiale.

Alaska has already earmarked money to study potential R.S. 2477 claims, and Nevada, the birthplace of the Sagebrush Rebellion, would jump on the R.S. 2477 "bandwagon" if Utah prevails in its lawsuits, Hoffmann and Imperiale said.

Attempts to settle

The ongoing litigation has created a great deal of uncertainty on all sides, including BLM, said Robert Keiter, a professor of public lands for the University of Utah who serves on the board of the National Parks Conservation Association, which has criticized the state's road claims.

"That impacts the BLM's ability to make long-term land and resource management decisions wherever these claims are being pressed," he said.

The road claims also complicate a broader effort by Utah GOP Rep. Rob Bishop to pass a comprehensive public lands bill for six eastern Utah counties -- Uintah, Emery, Carbon, Grand, Wayne and San Juan -- that would consolidate lands for oil and gas, potash and mining development while designating others for off-highway vehicles, mountain bikes and wilderness.

Bishop said conservation groups he is working with -- which include SUWA, the Wilderness Society, the Pew Charitable Trusts, the Sierra Club and the Nature Conservancy -- have "legitimate concerns" that future road claims could tarnish wilderness designations, which, by definition, aim to keep the lands "untrammeled by man."

Scott Groene, executive director of SUWA, said Washington County in 2009 agreed to have wilderness designations under legislation passed by former Sen. Bob Bennett (R-Utah) but has since filed R.S. 2477 claims in those areas.

"Utah's 20-plus lawsuits against the United States over R.S. 2477 may be the biggest hurdle to overcome in trying to reach agreement here," Groene said. "Fortunately, Congressman Bishop has said he believes the R.S. 2477 issue should be resolved as part of this legislation. We are in agreement with him on this point."

Last month, the various sides reached a rare accord to amicably resolve a handful of the disputed road claims in remote mountains west of Salt Lake City.

BLM, Utah, Juab County and environmental groups announced a settlement designed to balance the protection of primitive lands in the Deep Creek Mountains wilderness study area with access for motorized vehicle users (Greenwire, Aug. 20).

It marked the first negotiated settlement in Utah's larger bid over the R.S. 2477 claims.

Congress has tried unsuccessfully a handful of times to address the conflict.

Bills by then-Rep. Mark Udall (D-Colo.) nearly a decade ago sought to narrow the definition of R.S. 2477 rights of ways. Bills by Rep. Steve Pearce (R-N.M.) in 2006 and 2007 would have given states and counties more influence in the process. But lawmakers have done little since then.

Some observers are hopeful Bishop can resolve some claims in eastern Utah.

"There's an opportunity for some, if not all, of those roads to be addressed as a result of this legislative process," said Cody Stewart, an energy adviser for Herbert and former Bishop aide. "It may be one of the negotiated pieces that helps bring this across the finish line."

Utah vs. feds: Preparing with road trips, cameras, interviews with old-timers

This road in Dry Canyon in Box Elder County is one of the 12,400 roads the state is seeking title to in its fight with the federal government over preserving access. (Public Lands Policy Coordination Office)

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."

Public lands war heats up between SUWA, Gov. Gary Herbert

Riding out of the Little Grand Canyon of the San Rafael Swell April 2, 2011, in the San Rafael Swell in central Utah. The Southern Utah Wilderness Alliance worries public lands like San Rafael Swell would be in peril if Gov. Gary Herbert's public land policies succeed. (Tom Smart, Deseret News)

By Amy Joi O'Donoghue
Deseret News

SALT LAKE CITY — The Southern Utah Wilderness Alliance is on the attack, launching a high-profile campaign against Gov. Gary Herbert over his so-called public lands "grab."

The environmental group took out full-page advertisements in both of Salt Lake City's daily newspapers last week and plans to air radio spots and go door-to-door to spread its anti-Herbert message.

Referencing HB148 sponsored by Rep. Ken Ivory, R-West Jordan, the ad says Herbert signed legislation requiring the federal government to hand over more than 30 million acres it manages in Utah.

"But how could Utah afford to manage those lands?" the ad asks. "Right now, the state government can barely afford to keep our state parks open."

Instead of focusing on messages such as preservation or conservation of the land, SUWA asserts such an action would be a financial catastrophe that residents can ill afford.

"Gov. Herbert's efforts to take over public lands would be incredibly expensive for the state of Utah, both environmentally and economically," said Scott Groene, SUWA's director. "We have faith that when Utahns know the facts, they will oppose his land grab."

Groene said the public campaign is also being spurred by lawsuits the state filed earlier this summer against the federal government seeking control of RS2477 or Civil War-era routes and roads, an estimated 12,000 of them.

"(Herbert) has filed 22 lawsuits in front of eight federal judges. It seems serious," Groene said. "He is ready to throw a mountain of public money at it. And we are taking it very seriously."

This latest dust-up adds another dimension to what has become an increasingly active and vitriolic war of words and legal actions over what should — or should not happen — on federal lands controlled by the Bureau of Land Management or the U.S. Forest Service.

From sage grouse protections, the RS2477 battle and angst over rumored monument designations, Herbert has thrust himself front and center into the fray, stressing repeatedly that conservation of public lands and responsible development are not mutually exclusive and local control is best.

But Groene said Herbert's decisions go far beyond what other gubernatorial leaders are doing throughout the West.

"Gov. Herbert's actions to date have been far more radical than what has been taken by any other Western state. You see the issue of (RS2477) pop up here and there across the West, but nothing comparable to the lawsuits in Utah."

Groene said the scope of the state's actions under Herbert's purview constitute one of the most "serious threats Utah wilderness has faced in years. The only thing that is clear is that the state will spend millions and millions of dollars to benefit a small group of anti-federal constituents."

Herbert's spokeswoman, Ally Isom, dismissed the assertions of the environmental group.

"It's the political campaign season, so it is no surprise when special interest groups make political statements for their self-serving purposes. It's nothing more than political grandstanding," she said. "Neither their conduct nor their statements will weaken the governor's commitment to work through his Balanced Resource Council to make meaningful progress."

Ivory, the architect of HB148, said SUWA's criticism of Herbert's public lands policies comes from one small faction.

"SUWA is out to raise money. It is the same throughout time. You try to find a boogeyman and make it as scary as possible and raise as much money as possible so you have a reason for being."

He added that the mainstream public is fed up with over-restrictive federal ownership of lands that gives no concessions to local sentiments, and points to the American Lands Council, a group that grew out what he says is a groundswell of support for Western states to reclaim the federal lands promised to them.

"Because these things are now getting so personal, it's come down to the health, safety and welfare of local communities, the counties and the state," he said. "You either stand up for those rights or allow these arbitrary national policies to negatively impact the health, safety and welfare of these communities going forward."

Ivory said precedent exists for states to have that federal land returned, citing a successful effort by Indiana, Missouri, Arkansas, Louisiana and several others in 1828.

"They all got together and sent petition after petition after petition to the federal government saying, 'You are not disposing of our lands like you promised.'"

He said the federal government now controls only about 4 percent of the lands in those states.

"It's just crazy," he said. "What they're saying is you people in Utah are not good enough, not strong enough, not smart enough to manage your own lands, but somehow the people in Arkansas, Missouri, Louisiana and Illinois are."

Supervisor Opposes Settlement with U.S. on County Roads in Mojave National Preserve

Secret settlement a disservice to the public and property owners

Highland Community News

SAN BERNARDINO – Despite leading the effort that resulted in perhaps the first-ever legal recognition of County rights of ownership of roads on federal lands, San Bernardino County Supervisor Brad Mitzelfelt ultimately opposed and voted against the resulting settlement between the county and the federal government that was announced today.

Supervisor Mitzelfelt’s opposition was based on concerns about future vehicular access and convenience of the public as well as property owners within the Mojave National Preserve.

“I recommended that the Board of Supervisors initiate this lawsuit five years ago to ensure the county’s rights to maintain the roads in the Mojave National Preserve, not to turn the roads over to the National Park Service,” Supervisor Mitzelfelt said. “The Board’s final decision was not consistent the Board's original intent and certainly not consistent with my intent to preserve access and county control of roads in the preserve on behalf of our residents and visitors.”

The Mojave National Preserve takes in 1.6 million acres between Interstates 15 and 40 west of and bordering the Nevada State Line. The roads – including Kelbaker, Ivanpah, Essex, Lanfair and Morning Star Mine Roads – are important routes for travelers and commerce across the desert. But one example of disputes over authority between the county and the Park Service was the Park Service’s action posting signs prohibiting commercial vehicles when the preserve was first established by the Desert Protection Act in 1994.

Supervisor Mitzelfelt said the county believes the settlement represents the first time the federal government has formally recognized that county roads on federal land are valid and protected rights-of-way under a federal law passed in 1866.

“While I am pleased we were able to convince the federal government to agree to recognize our road rights-of-way, it is largely a symbolic victory unless and until someone can successfully convince a federal authority that it set some kind of a precedent,” Supervisor Mitzelfelt said. “The agreement specifically says it does not set a precedent, but I still hope our county or perhaps even another county or state will be able to derive some benefit from what was agreed to in this settlement.”

Added Mitzelfelt: “I also feel that the settlement process, carried out in secret, which under federal court rules and procedures is perfectly legal and proper, has nevertheless done a disservice to the public and the property owners within the preserve by not giving them a voice in the matter until after a final decision had been made.”

In October 2006, the County filed a “quiet title” action against the United States and the U.S. Department of the Interior seeking acknowledgement that 14 county maintained roads within, and adjacent to, the Mojave National Preserve are permanent and protected rights-of-way under Revised Statute 2477, part of the Mining Act of 1866, which allowed construction of roads across public lands.

R.S. 2477 was repealed in 1976 and replaced with the Federal Land Policy and Management Act, which subjects the county to extensive environmental review and regulatory costs when it is invoked on county roads not established or authorized under R.S. 2477 before it was repealed.

Because the county was never able to secure official acknowledgment or documentation of R.S. 2477 rights from the Department of Interior, despite extraordinary efforts to do so, it decided to file suit to force the issue.

During settlement negotiations, the idea was advanced that the federal government could recognize the county’s assertion of control over the roads but then the County could turn over most of the roads to the federal government. Although the Board of Supervisors was not directly involved in the negotiations, Supervisor Mitzelfelt was briefed on the matter throughout because the preserve is located within his district. When negotiations turned toward ceding roads to the federal government despite his personal opposition to the idea, he began pushing for binding provisions that the roads would be maintained, and most importantly, kept open, in the event they were transferred to federal ownership.

The county and Park Service agreed to enter into a Memorandum of Understanding requiring the two agencies to work together on issues of maintenance and safety improvements, along with acknowledgement of the county’s need to keep the roads open for public use. But Supervisor Mitzelfelt said he feels that the MOU and settlement may not sufficiently bind the federal government to keep routes open.

“Based on my own conversations with the Park Service, I have little confidence that they will be appropriated enough funding to properly maintain and improve those roads,” Supervisor Mitzelfelt said. “As far as a process to prevent arbitrary closure of roads, such a provision exists in the settlement. But I fear the Park Service will simply go through the public process and consultations with the county and attempt to close roads anyway based on lack of funds.”

The Supervisor said he hopes that does not occur, and if it does it would be after his term of office. But if it does happen, “I hope the county will legally challenge any future road closures in the Mojave National Preserve.”

Supervisor Mitzelfelt said one favorable provision of the settlement is that the county will continue to own and maintain two roads on the edges of the Mojave National Preserve located on U.S. Bureau of Land Management property – Nipton Road and Goffs Road – under the county’s normal regulatory regimen for road maintenance in the area.

County settles suit over Mojave National Preserve roads

Supervisors sell out property owners for an annual $53,000 savings

From Staff Reports
Victorville Daily Press

Environmental groups reached a settlement with San Bernardino County this week in an ongoing legal dispute over roads in the Mojave National Preserve.

The dispute centered on how many roads the county could claim within the preserve and how the roads affected sensitive wildlife.

The county had sued the federal government in 2006 in hopes of retaining access to 14 county-maintained roads within the 1.6 million-acre preserve between Interstates 15 and 40, west of the Nevada State Line. The federal government agreed to preserve the roads — including Kelbaker, Ivanpah, Essex, Lanfair and Morning Star Mine roads — and take responsibility for maintaining them, the county said.

First District Supervisor Brad Mitzelfelt said the county believes the settlement represents the first time the federal government has formally recognized that county roads on federal land are protected rights-of-way under a federal law passed in 1866.

However, Mitzelfelt blasted the settlement, saying he did not think the National Park Service would have enough funding to maintain the roads and that he fears they may ultimately restrict access to the public.

“Based on my own conversations with the Park Service, I have little confidence that they will be appropriated enough funding to properly maintain and improve those roads,” Mitzelfelt said in a statement Friday. “As far as a process to prevent arbitrary closure of roads, such a provision exists in the settlement. But I fear the Park Service will simply go through the public process and consultations with the county and attempt to close roads anyway based on lack of funds.”

The National Parks Conservation Association, Sierra Club and Center for Biological Diversity joined the suit in an attempt to force the county to consider the impacts of the road proposal on sensitive wildlife. The groups had attempted to negotiate a settlement with the county for five years, the Center for Biological Diversity said.

The groups agreed to allow the county to claim two roads — Nipton Road and Goffs Road — on public lands bordering the preserve that were used for travel before 1976, as well as eight other roads within the preserve. But the county was required to give up claims to additional roads in the preserve that the groups say threaten sensitive species like Joshua trees and desert tortoises.

“The sweeping vistas and dark night sky in the preserve will be safeguarded — an important conservation goal as development pressures mount in the Southern California deserts,” Kim Floyd, conservation chair for the San Gorgonio Chapter of the Sierra Club, said in a statement.

County officials said they expected to save $53,000 per year by having the federal government maintain the roads.

County Road Claims in Preserve Settled

Legal Settlement Between Feds, County, Conservationists
Will Curb Road Threat to Mojave National Preserve

Press Release
Center for Biological Diversity

BARSTOW, Calif.— Ending five years of settlement negotiations, parties to a lawsuit involving Revised Statute 2477 road claims in California’s Mojave National Preserve filed an agreement today that protects species and fragile desert lands while recognizing claims to some roads that have long been used to cross the Mojave Desert. The settlement between the National Park Service, Bureau of Land Management, San Bernardino County and three conservation groups balances the county’s interest in public access while protecting sensitive desert lands.

“This settlement will help protect the preserve’s fragile desert resources, including Joshua tree forests, desert tortoise habitat, the ‘singing’ Kelso Dunes and several areas important to bighorn sheep,” said Lisa Belenky of the Center for Biological Diversity. “The settlement recognizes some of the county’s road claims while protecting the preserve from future claims.”

Under the settlement, the county’s right-of-way claims on two roads bordering the preserve on public lands will be recognized limited to their existing footprints; both were paved, two-lane highways used for cross-desert travel before 1976. The county’s claims to eight other roads within the preserve will be recognized in exchange for the county’s agreement to relinquish those claims and all other claims to roads in the preserve to the federal government, consolidating federal management. The county withdrew its claim to two short rights-of-way providing access to I-15.

“We strongly support consolidating management authority in the National Park Service which will ensure that the world-class biological and cultural resources of the Mojave National Preserve will be protected while the settlement also acknowledges that these paved and graded roads have long been used to provide public access to the preserve and across the Mojave desert,” said David Lamfrom, California desert senior program manager at National Parks Conservation Association.

The Mojave National Preserve, located in California’s Mojave Desert, covers 1.6 million acres of fragile desert. It was established in 1994 with passage of the California Desert Protection Act and is home to more than 2,500 native species, of which approximately 100 are considered imperiled.

“The sweeping vistas and dark night sky in the preserve will be safeguarded — an important conservation goal as development pressures mount in the Southern California deserts,” said Kim Floyd, conservation chair for the San Gorgonio Chapter of the Sierra Club.

The three conservation groups that joined the lawsuit as intervenors and are parties to the settlement are the National Parks Conservation Association, Center for Biological Diversity and Sierra Club.

In related news, a federal judge on Wednesday dismissed a lawsuit by Inyo County that claimed roads in Death Valley National Park.

RS 2477 fight is important

One of the state's RS 2477 claims in the Glen Canyon National Recreation Area. (SUWA)

Editorial
The Richfield Reaper

The fight over Revised Statute 2477 roads has been long and arduous, but it is also important.

In all, 13 lawsuits were filed last month by the Utah Office of the Attorney General on the behalf of counties in Utah with RS 2477 claims. The goal of the lawsuits is to protect access to roads that have been in use since before 1976.

An 1866 law designed to validate a system of highways and roads that traversed federal and private lands in the western United States established the RS 2477 roads. The law was repealed in 1976, but Congress granted right of way for roads used prior to the repeal.

In the years since then, there have been attempts to close several RS 2477 roads. One of the biggest examples of closures occurred with the declaration of the Grand Staircase-Escalante National Monument in 1996.

Environmental groups have argued for a different interpretation of RS 2477, as closing roads would allow for more wilderness areas to be designated.

While some may be under the impression that RS 2477 roads are all obscure dirt roads in the middle of nowhere, that is not the case. Looking over the list of recorded RS 2477 roads in Sevier County, one may be surprised to find names like Black Knoll Road, Hepplers Pond Road, Lost Creek Road and Upper Redmond Lake Road.

In all, 713 roads in Sevier County have been included in the lawsuit, as well as 101 in Piute, 341 in Wayne and 329 in Sanpete.

The goal of the attorney general’s office in filing lawsuits is to preserve access to roads so that they cannot be arbitrarily closed in the future. While some may never face the danger of being closed, others could be without warning.

Right of way is something that should be protected with zeal. It’s difficult to reopen roads that are closed, and even more so to establish new roads.

Closures of some roads may mean not being able to access a favorite fishing hole, while other closures could have severe economic and transportation consequences. In an area where the vast majority of terrain is federally owned and administered, being able to traverse the land is vital.

The attorney general’s office was right to file lawsuits in an effort to bring the RS 2477 issue to a resolu-tion. Hopefully, once the litigation is complete, access to public areas will be preserved for generations to come.