Federal appeals court rules against Utah roads
September 1, 2009
SALT LAKE CITY – An appeals court has ruled that local officials in Utah can’t assert control of motor routes across federal lands or national parks if it conflicts with federal controls.
A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver ruled that Kane County can’t open routes on federal land without offering proof of the right of historic passage.
Kane County retaliated against an adverse lower court ruling more than a year ago by refusing to maintain legal roads inside the Grand Staircase-Escalante National Monument. That left authorized dirt roads in bad repair, forcing vehicles to crawl over bumps and potholes at speeds as low as 5 mph.
The Wilderness Society and Southern Utah Wilderness Alliance brought the case in 2005 when the federal government failed to take action against Kane County for ripping up 31 monument signs banning vehicle travel and substituted them with county motor-route signs.
Two of the appeals court judges said the dispute boiled down the dispute to a simple question.
“May a county exercise management authority over federal lands in a manner that conflicts with the federal management regime without proving that it possesses valid R.S. 2477 rights of way?” Judges Carlos Lucero and William J. Holloway wrote in Monday’s ruling. “As did the district court, we answer this question in the negative.”
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Revised Statute 2477 was an obscure Civil War-era law assuring passage across federal lands. The law was repealed in 1976 with protection for existing roads, but sorting through countless wandering dirt paths across the West has led to protracted disagreements about which roads qualify for local control.
The third appeals-court judge, Michael McConnell, wrote a lengthy dissent taking issue with a 2008 decision by U.S. District Court Judge Tena Campbell in Salt Lake City.
McConnell argued Kane County didn’t have to prove anything.
“None of the R.S. 2477 roads in Kane County, and precious few in the rest of Utah or the West, have ever been proven or established in court. That has never been necessary. For more than 150 years, R.S. 2477 routes have been regarded as vested property rights, based solely upon continuous public use across unreserved federal land for the requisite number of years prior to 1976,” he wrote.
Kane County’s “roads” were never anything more than faint tracks in the desert or tire tracks in dry washes, said Heidi McIntosh, a staff lawyer for the Southern Utah Wilderness Alliance.
“They were closed to protect various resources like fragile soils and habitat,” she said. “The Bureau of Land Management left open 1,000 miles of routes in the Monument, so there’s no question that access is available; Kane County’s just trying to make an ideological point.”
Kane County Commissioner Mark Habbeshaw, the driving force behind the bid for local control on federal lands, said, “We haven’t given up the fight over these roads.”
Habbeshaw said the county’s options include trying to take out property titles on the disputed routes, asking the full 21-judge Circuit Court of Appeals to take up the case or appealing directly to the U.S. Supreme Court.
“We were hoping the decision would put us back on the roads,” Habbeshaw said. “Unfortunately, the other two judges didn’t see it McConnell’s way.”