Appeals Court Says State Law Should Apply on RS 2477 Claims

In September of 2005, the 10th Circuit Court of Appeals reversed a Utah federal judge’s ruling, holding that she had wrongly applied a federal standard of “actual construction” in evaluating RS 2477 “highway” claims across public lands.  Instead, the court held that Utah law—which requires ten years of continuous use to establish such a claim—should be applied.  The Court of Appeals also reversed the trial court’s holding that a 1910 coal withdrawal made the affected lands ineligible for RS 2477 right-of-way claims, and that the BLM lacks the authority to recognize RS 2477 claims except for internal planning purposes.  We have until November 23rd to decide whether to appeal.

This case arose in 1996 after three southern Utah counties—Kane, Garfield and San Juan—began grading routes in wilderness study areas, lands under BLM wilderness review, and lands which had just recently been designated as part of the Grand Staircase-Escalante National Monument.  It was a temper tantrum of epic proportions and sparked what will likely be at least a decade of litigation.  Worse still, it has sucked the state of Utah into an absurd RS 2477 fight that funnels millions of state tax dollars into rural county litigation coffers.

The upshot of the court’s decision is that sixteen claims asserted by the three southern Utah counties will now be tried before yet another Utah federal court judge—from scratch and with a new standard.  This means more time and more money wasted, all in pursuit of dirt tracks and trails that never appeared on a state highway map, and about which county officials know virtually nothing.  The result of the case will have a profound impact on the face of western public lands, including national parks, wilderness areas, and other spectacular places.  The district court judge has plenty of wiggle room to define the precise parameters of “ten years of continuous use,” and his decision will ultimately set important legal benchmarks.

Once thing is clear from the start, however: the counties still bear the burden of proof to show that the routes at issue received fairly substantial use over a long period of time— all prior to 1976, when RS 2477 was repealed.  It will be a tough sell for most of the routes, and SUWA will be there to ensure that they meet that exacting standard.

On a happier note, the 10th Circuit Court ruled this summer that SUWA and The Wilderness Society are entitled to intervene in a San Juan County lawsuit claiming that Salt Creek Canyon in Canyonlands National Park is an RS 2477 highway immune from the Park Service’s closure order protecting this fragile area from jeep damage.  Both the feds and the county—with help from Governor Huntsman’s administration and lawyers—argued that despite our 12-year history of advocacy and litigation to protect Salt Creek, our interests were insufficient to allow us to participate in the very lawsuit that could determine its ultimate fate.

The appellate decision overturns a district court ruling denying our request to intervene.  The State of Utah and San Juan County have asked the 10th Circuit to reconsider its decision.  If the court rejects that request, SUWA, The Wilderness Society and other conservation organizations will be able to participate in RS 2477 lawsuits brought by the State of Utah.  And with 10,000 or more RS 2477 claims in the offing, that’s a lot of cases, with a lot at stake.  It’s more important than ever that we preserve our right to participate in court, with a voice and a legal team, while these cases are decided.





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