Utah road fight heads to federal appeals court

Judith Kohler
The Associated Press
Aspen, CO Colorado

DENVER ” A federal judge Wednesday asked a southern Utah county challenging the closure of roads in a national monument why it pulled down the federal government’s signs rather than prove it owned the roads.

Kane County and environmental groups that sued the county argued their sides before the 10th U.S. Circuit Court of Appeals, in a case pitting what the county claims are property rights against protection of the nearly 2 million-acre Grand Staircase-Escalante National Monument.

A decision by the three-judge panel is pending.

The county appealed a federal court ruling last year that found the county exceeded its authority in 2003 when it tore down signs by the federal government, which closed routes and prohibited off-road vehicles. Two years later, the county put up its own signs, opening roads and allowing off-road traffic.

The county was later ordered to take down their signs.

Judge Carlos Lucero asked the county why it didn’t go to court to establish ownership of the roads, instead of removing the signs.

Michael Lee, an attorney representing Kane County, said it is trying to establish its claims to the roads through the courts, but that it’s a painstaking process.

“There are dozens, scores, hundreds of roads” in question, Lee said.

The case is one of a handful in which the county has claimed rights of way under an 1866 mining law that assured states and counties use of roads crossing federal lands. The law was repealed in 1976, but counties were allowed to claim ownership of rights of way that existed before then if they could show they had roadlike qualities.

Determining whether dirt paths and other routes qualify as local roads has led to protracted disagreements across the West.

Last month, the Denver-based federal appeals court rejected a challenge by Kane and Garfield counties of restrictions on vehicles in the national monument. The decision upheld one in 2007 by a federal court in Utah that found the counties can’t shift the burden of proving ownership of the roads to the U.S. Bureau of Land Management.

Jim Angell, an attorney with Earthjustice who represented the environmental groups, said during the hearing Wednesday that the management plan for the Grand Staircase-Escalante closed several roads. He said the presumption is that the roads are under federal authority unless shown otherwise.

Judge Michael McConnell challenged the argument that the county has to prove it owns the roads. He also questioned whether BLM had physically closed any roads and if there was even a controversy for the environmental groups to pursue.

And in a testy exchange with Angell, McConnell challenged the environmentalists’ legal right to sue over the issue, questioning whether they are affected by the county’s actions.

“What is your legally protected interest” under the law, McConnell asked.

Angell said the conservation group’s interests were affected by the reopening of the roads because the BLM closed them to protect the environment and prevent damage.

Then-President Bill Clinton designated the Grand Staircase-Escalante area a national monument in 1996. It’s rich in fossils and considered an important geological and archaeological area.

The monument is on public land in Kane and Garfield counties.

Kane County Commissioner Mark Habbeshaw, who was at the hearing, said the federal government created “a catastrophic situation” when it put up road signs in the monument because they didn’t match up with the rest of the county’s road system.

“We need to be able to manage our roads,” Habbeshaw said. “The public needs to be able to travel those roads.”

Federal officials stopped coordinating with the county in 1996, the year the monument was designated, Habbeshaw said.

“The federal government went through years of planning. The county participated in all that planning,” Angell said after the hearing. “The doors are certainly open to them.”