PUBLIC LANDS: Appeals court ruling curbs Utah road claims victory
Phil Taylor, E&E reporter
E&E PM: Tuesday, December 2, 2014
The 10th U.S. Circuit Court of Appeals today issued a mixed ruling on a Utah county's claims to more than a dozen roads across federal lands, a decision that could have ramifications for the Beehive State's broader claims over some 12,000 roads under a Civil War-era law.
The three-judge appeals panel said the U.S. District Court for the District of Utah made some errors in its March 2013 decision 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).
The case pitted Utah and Kane County against the United States over the existence and scope of the county's rights of way on federally owned land under the 1866 law known as R.S. 2477.
The obscure law allowed miners and homesteaders to build trails or roads over any public lands not yet reserved or claimed for private use. Congress repealed it in 1976, but it said pre-existing R.S. 2477 rights must be honored.
While Kane County and Utah succeeded in convincing the district court of R.S. 2477 rights of way on 12 of the 15 roads in the case, the 10th Circuit decision appears to have pared back that victory.
Notably, the panel found that the lower court did not have jurisdiction over six of the roads it awarded to Kane County because there was no "disputed title" necessary to involve the federal courts -- a victory for the United States.
In addition, the circuit court also agreed with the United States that the lower court had made significant errors in determining how wide of a right of way to award Kane County for three other roads. It remanded decisions on those roads back to the district court.
But the court also rejected a key contention of environmental groups that the statute of limitations for the North Swag route had run its course, which would have made the county's claim for that route invalid.
The Southern Utah Wilderness Alliance, Wilderness Society, Sierra Club, Grand Canyon Trust and National Parks Conservation Association had sought to intervene in the case in opposition to Kane County's claims.
Attorneys for SUWA and Utah this afternoon were still digesting the implications of the 10th Circuit ruling, but neither appeared ready to claim victory.
"It's kind of a mixed bag," said Utah Assistant Attorney General Tony Rampton.
But the ruling likely has implications far beyond the Kane County case, he said.
It remains unclear how many of Utah's roughly 12,000 road claims would be deemed under the jurisdiction of federal courts, given the 10th Circuit's ruling that six of Kane County's claims did not involve requisite "controversy."
Utah's claims to roads under R.S. 2477 represent a potent legal bid to assert state control over federal lands. Conservation groups have fought the claims tooth and nail, noting that many of the roughly 36,000 miles of routes crisscross sensitive wilderness study areas, national parks or other public lands they've proposed remain roadless.
Considering the vast number of road claims, stakeholders are looking to the 10th Circuit to provide legal precedent for how Utah, counties, the federal government and conservation groups negotiate resolution on thousands of roads.
While some of the roads Kane County had won are noncontroversial, the North Swag route cuts through the Paria-Hackberry wilderness study area, which the Bureau of Land Management recognized for its roadless characteristics and which environmentalists have eyed for future wilderness designation.
