Utah Supreme Court weighs dispute over roads in federal lands

Against the background of increasing tensions over public lands, the Utah Supreme Court is weighing the state’s push to claim the right to use about 12,000 rural roads that run over federal land. Utah is suing the federal government to guarantee access to the roads that run though large swathes of the state. Environmental groups are pushing back, saying the state is trying to claim every faint track in the desert as a local right of way. The case that came before the Utah Supreme Court on Monday deals with a series of nearly two dozen lawsuits filed by the state before the public lands debate began making national headlines. The legal arguments are rooted in a Civil War-era law known as R.S. 2477 that allows states or localities to claim ownership over historic routes crossing public lands. Congress repealed such right of ways in 1976, but it recognized those roads that were established on lands before national forests were formed or the land was placed into a federal reserve. State attorneys say they’re pressing the issue to make sure that the federal government doesn’t close the roads to locals. Attorneys for Southern Utah Wilderness Alliance argued before the Utah Supreme Court that the state’s move to stake their claim came decades too late. They say the lawsuits should have been filed within seven years after the repeal in 1976. State lawyers contend they filed in plenty of time about five years ago because the legal deadline is actually a 12-year window triggered by an event worth suing over. It isn’t clear when the Utah Supreme Court will rule in the case. If the justices side with the environmentalists and the federal government, Bloch said it could put an end the state’s effort to lay claim to the right of way. Rampton disagreed with that assessment, saying there would still be questions to work out. If the high court rules in the state’s favor, the lawsuits filed by the state would continue to play out in federal court...more

Judge denies new trial for convicted San Juan County commissioner

San Juan County Commissioner Phil Lyman will not get a new trial after his conviction for an illegal ATV protest ride in a closed southern Utah canyon. U.S. District Judge David Nuffer denied Lyman's and co-defendant Monte Wells' request in a written decision Thursday. In a separate order, Nuffer also rejected the commissioner's motion for an acquittal. Meantime, Lyman informed the Utah Association of Counties on Thursday that he will not accept its award for County Commissioner of the Year. Lyman and Wells argued that prosecutors failed to disclose a 1979 map showing the road in Recapture Canyon is a public right of way known as an RS2477 road. They say that means they can't be legally faulted for leading and riding with a group of protestors who were angry about the Bureau of Land Management closing the canyon. Prosecutors say the map is irrelevant because the legal status of the canyon was not an issue for the jury. U.S. District Judge Robert J. Shelby, who has since removed himself from the case, did not allow defense lawyers to argue about the road closure during the trial because he had already found it legal. Nuffer agreed...more

SCOTUS declines to hear Utah’s appeal over who owns rural roads

The U.S. Supreme Court on Tuesday declined to hear Utah's appeal on a test case over rights-of-way across public land, letting stand a lower court ruling that could undermine counties' legal claims to many of these disputed routes. The underlying case involved just a handful of roads in Kane County, but the ruling the state appealed affects its fight to gain title to many roads using the frontier-era law known as RS 2477. Last year, the 10th Circuit Court of Appeals explored the question whether "the United States either explicitly or implicitly disputed the [state's] title" to the roads. In its ruling released last December, a three-judge panel concluded that it had not. Routes deemed open in the Bureau of Land Management's travel management plans lack sufficient controversy for the courts to determine who owns them under the federal Quiet Title Act. This reasoning was affirmed Tuesday when the high court rejected the state's and Kane County's petitions to review the lower court's decision. "The majority of the state's 12,000 claims would fall into this box of no disputed title. If the route is open, why is there this fight?" said Steve Bloch, legal director of the Southern Utah Wilderness Alliance. "It's important that the federal government should regulate these roads. It comes down to who's going to manage the public estate. The feds take a longer and broader view than the parochial view of the counties." But lawyers for the state and the county argued the 10th Circuit's "constricted and unprecedented" interpretation undermines the goal of the old road statute, which was to encourage development of remote Western lands by ensuring local jurisdictions held rights to routes pioneers carved across the public domain. States today can prevail on RS 2477 claims if they can a demonstrate 10 years of continuous public use on a particular road prior to the law's repeal in 1976. The routes at stake in the appeal are not particularly controversial because they are improved roads that do not enter wilderness quality lands and see regular vehicular traffic...more

Utah stakes claim to Recapture Canyon citing repealed frontier-era law

The state of Utah has added a 9.22-mile "road" through Recapture Canyon to a list of 12,000 routes it is seeking to wrest from federal ownership. The archaeologically rich canyon outside Blanding, which federal authorities closed to motorized use eight years ago, was the scene of the 2014 ATV protest ride that resulted in the criminal convictions of San Juan County Commissioner Phil Lyman and Monticello City Council member Monte Wells. In a letter Wednesday to Interior Secretary Sally Jewell, state officials say the state enjoys a "right-of-way" through the canyon under the repealed frontier-era law known as RS 2477. The law allows Western counties to claim title to routes over public lands if they can demonstrate 10 years of continuous use prior to the law's repeal in 1976. "The Recapture Canyon right-of-way is a small but important piece of the transportation system and economy of the State of Utah and San Juan County," wrote Kathleen Clarke, director of the Utah Public Lands Policy Coordinating Office. The claimed route stretches from Recapture Dam south to Perkins Road. Clarke's letter does not elaborate on the basis of the claim, but Lyman's supporters have argued that the canyon served as a historic thoroughfare between Monticello and Bluff and a conduit for cattle drives. So, the argument goes, the route should never have been closed and the protest leaders should not have been charged...more

Way to go, Utah!

Federal court hearing continues in forest road fight in Nevada

Elko County’s lawyers head back to federal court today with century-old newspaper clippings and mining claim maps from the 1890s that they say prove they’re in charge of a road on a national forest near the Idaho border. The county, U.S. government and environmentalists have been arguing for two decades over the South Canyon Road and protection of a threatened fish in the river next to it. The government first sued the county and leaders of a group called the “Shovel Brigade” in 1999, accusing them of violating the Endangered Species Act with the unauthorized reconstruction of the washed out road along the Jarbidge River. Legal arguments center on an 1866 law that established so-called RS 2477 roads by granting states and counties the right of way to build highways on federal lands. Congress repealed such rights of way in 1976 but grandfathered in roads established on lands before national forests were formed or the land was placed into federal reserve. Elko County maintains their road enjoys such status because miners and ranchers regularly traveled the route before the area first was reserved in 1905, then designated a national forest by President Teddy Roosevelt in 1909. The government denies such a right of way exists. But under political pressure, the Forest Service signed a settlement agreement in 2003 with assurances it no longer would challenge the county’s claim. The Wilderness Society and Great Old Broads for Wilderness sued to block the deal, saying U.S. officials lacked the authority to cede control of the road and shirked their responsibility to protect the bull trout. The 9th Circuit Court of Appeals agreed and tossed the agreement out in 2005, before the agency signed a similar deal in 2011 and conservationists sued again...more

Nevada county gets help in road fight

RENO, Nev. – Nevada’s attorney general for the first time is joining a rural county in a 15-year-old legal battle with the U.S. government and environmentalists over control of a remote national forest road – one of the longest running of many similar disputes across the West. The states of Arizona and Idaho have mounted claims to such roads before, and Utah’s attorney general has filed dozens of lawsuits in recent years asserting county rights of way on more than 14,000 roads on federal land. Nevada hasn’t tried to intervene since the federal government first sued Elko County in 1999 to halt the reopening of a washed-out road near the Idaho border for fear of harm to the threatened bull trout in the Jarbidge River. But newly elected Attorney General Adam Laxalt announced the change of course this week when his office filed a request in U.S. District Court in Reno for friend-of-the-court status in the proceedings. “Nevada’s voice deserves to be heard,” according to the filing. U.S. District Judge Miranda Du has scheduled an April 27 evidentiary hearing in a case that centers on the interpretation of an 1866 law that established so-called RS 2477 roads by granting states and counties the right of way to build highways on federal lands. The goal was to help settle the West and applied in some cases even to crude paths, such as wagon trails. Congress repealed such rights of way in 1976, but recognized those roads that were established on lands before national forests were formed or the land was placed into a federal reserve. Elko County’s lawyers maintain the Jarbidge South Canyon road enjoys such status because miners and ranchers traveled the route in the 1890s before President Teddy Roosevelt effectively established what is now part of the Humboldt-Toiyabe National Forest in 1909. Environmentalists argue that’s not necessarily the case. Other states that have proved their claims to RS 2477 roads did so under their own state laws that allowed for establishing public highways on the basis of “continuous public use,” said Michael Freeman, a Denver-based lawyer for The Wilderness Society who has been involved in the court battle from the beginning. However, Nevada law in effect at the time required action by the Elko County Board of Commissioners to establish a public highway and the county has no evidence that ever occurred, he said. The case is unique because, while the U.S. government denies Elko County has established such a right of way, the Forest Service signed a settlement agreement in 2011 that included its assurances it no longer would challenge the county’s claim it exists...more

Otero County at odds with BLM over ownership of road in Orogrande

Otero County workers are scheduled to make improvements to a road just north of Orogrande and open it Tuesday for Gulf Coast Mining so the company can haul iron ore from the Iron Duke mine. But Bureau of Land Management officials say Otero County needs to file the necessary forms to make the improvements and open the road. Both county and BLM officials want to work together on opening the road, A010, but there is a discrepancy as to who has the right-of-way and whether the county or BLM owns it. County Commissioner Ronny Rardin said he has maps from the 1940s and 1950s indicating that A010 is an improved and maintained roadway, which leads him to believe the county and Gulf Coast Mining have the right to use the road and make minimal improvements to it. Rardin said he obtained the maps from New Mexico State University in Las Cruces. He said the maps show a direct route from U.S. Highway 54 to the mining site. BLM has provided a map to the county that shows the road beginning at U.S. Highway 54 near the northern border of Orogrande and looping back to the highway a little further north. Rardin said he believes BLM's map is incorrect because there's evidence of a road, but it ends without access to the mining site and essentially landlocks access to it. "We can find our roadway indicated on the 1947 and 1955 maps from NMSU," he said. "We believe it's our road. We're not widening the road. We want to grade the road for Gulf Coast's 18-wheel trucks to haul iron ore from the mine. They're just cleaning up the site. Gulf Coast is not doing any deep mining. They're cleaning up the tailings from previous mining. Gulf Coast is going to give us the leftover product from crushing the tailings, or rock, to use to fill in the ruts in the road. They're giving it to us for free." Road A010 is considered by the county to be a Revised Statue 2477 road. In 1866, Congress passed a law that gave public entities, counties or state governments the right to construct roads on federal lands. It was an open invitation to counties and states to construct roads on federal lands, and upon construction they received a right-of-way...more