Utah Roads Case Could Set Precedent

Sat March 19, 2005 - West Edition
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SALT LAKE CITY (AP) The 10th Circuit Court of Appeals is considering a case involving three Utah counties trying to claim rights of way that could determine whether Western states and counties can own roads and trails across millions of acres of federal land.

On Feb. 11, Kane, Garfield and San Juan counties told the three-judge panel that the Bureau of Land Management has no jurisdiction over their right of way claims on federal land, and that state standards must be applied when assessing such claims.

The current legal battle over the rural roads began nine years ago when the Southern Utah Wilderness Alliance (SUWA) and the Sierra Club sued after the counties graded roads in areas under review for wilderness protection.

The outcome probably will determine whether Western states and counties can claim ownership of trails and roads on federal land, including national parks, or if the federal government retains control and can continue to impose restrictions on use.

On Feb. 11, the three-judge panel quickly keyed in to the widespread implications of the issue, with 10th Circuit Judge Michael McConnell asking a state attorney if the matter was a “test case” meant to gauge the potential success of future claims.

“If you win, is it your client’s position that there may be many other tracks or roads that the county will move to improve?” McConnell said. “Are there other suits waiting in the wings?”

Assistant Utah Attorney General Ralph Finlayson said there likely were and they could number in the thousands in Utah alone.

“There are many other roads that would be affected by the precedent of this case,” he said.

Jerome Epstein, an attorney of SUWA and the Sierra Club, suggested states could use a favorable ruling to seek title to “tens of thousands” of hiking trails in national parks.

“The ramifications of the decision in this case are enormous,” Epstein said. “This is not hypothetical. States from 1898 to 2000 have attempted to seize public lands by fiat.”

In June 2001, U.S. District Judge Tena Campbell struck down the counties’ claims to the roadways under a Civil War-era mining law that guaranteed states and counties rights of way across federal land.

The law, Revised Statute 2477, was repealed in 1976, but states and counties were assured continued use of roads that existed before that time. However, records of roads were scattered and there were disagreements across the West over whether wandering dirt paths qualified as roads.

The counties argue on appeal that Campbell’s decision, which upheld several BLM determinations, was improper because the agency does not have the authority to determine the validity of RS2477 claims.

The case turns on technical legal arguments, such as the specific administrative authority delegated to the BLM by Congress and the proper definition of the words “construction” and “highway” as used in the statute. To define the terms, the appeals court must also resolve whether state or federal law controls the case.

The appeals court took the matter under advisement, and did not indicate when it would issue a ruling in the case.