Appeals court rules in favor of counties in RS 2477 case.

[Rick B]

I've been waiting for several days to find a news story on line about this incredibly important decision by the US Court of Appeals, Tenth Circuit. The local paper here in Moab & one in Monticello both have it in the printed papers but not online where it could be linked to.

The gist of the decision is that SUWA, and the BLM lose now. The case invilves 16 road rights-of way the counties assert are theirs under RS 2477. A panel of three judges unanimously rejected the BLM administrative determinations that a judge of the Utah District Court has affirmed in disallowing the roads. The Tenth Circuit Coutr statedhowever, that the BLM lacked the authority to conduct those determinations.

The Tenth Circuit court further rejected numerous standards employed by the BLM determinations, including a requirement that the roads be established by mechanical construction, and rejected the BLM's contention that a 1910 coal withdrawl in the area over which some of the roads run, disqualified the area for establishment of RS 2477 roads.

The Tenth Circuit instead upheld the arguments by the counties that the correct law to apply in determining whether roads are valid under RS 2477 is Utah law which provides that continuous use for 10 years prior to 1976 is sufficient to establish an RS 2477 right-of-way. This decision has been remanded to the District Court for complete review under the standards declared in the Tenth Circuit Court opinion.

This case has been litigation since 1996, when Kane, Garfield, and San Juan counties were accused of trespass for performing maintenance on roads they asserted as their rights-of-way under RS 2477.

Fianlly a court applies a little common sense and sets a clearer standard. The only court higher than the Tenth Circuit Court of Appeals is the US Supreme Court. So hopefully this issue is nearly settled & our tax dollars can be spent more constructively to manage the land instead of making the lawyers rich.

 

[Greg]

That's great news! It's good to see that the Tenth Circut Court can see thru all the BS and determine that roads are there for a reason and *must* stay there.

 

[greenjeep]

Here is BRC's press release about the decision. Glad it finally went our way!!
___________________________________________________________
FOR IMMEDIATE RELEASE

September 12, 2005
CONTACT:
Brian Hawthorne 208-237-1008 Or Paul Turcke 208-331-1807


BlueRibbon Coalition Applauds R.S. 2477 Ruling

The BlueRibbon Coalition applauded last week's 10th Circuit Court of Appeals that could bolster the claims of local governments and public access proponents to controversial "RS 2477 highways" criss-crossing many western lands. "This is a huge victory for millions of Americans who value access to public lands," said BlueRibbon's Public Lands Director, Brian Hawthorne.

The ruling came in an appeal from a U.S. District of Utah decision in SUWA v. Bureau of Land Management (D.C. NO. 2:96-CV-836-TC). The litigation began in 1996 when road crews employed by Utah's San Juan, Kane, and Garfield Counties graded sixteen roads located in southern Utah. The Southern Utah Wilderness Alliance (SUWA) and other anti-access groups filed suit against the Bureau of Land Management (BLM) , San Juan County, Kane and Garfield Counties, alleging that the Counties had engaged in unlawful road construction activities and that the BLM had violated the law by not taking more aggressive action against the road maintenance. The BLM subsequently filed cross-claims against the Counties, alleging that their road construction activities constituted trespass and degradation of federal property. The Counties claim the road maintenance activities were lawful because the activities took place within valid "R.S. 2477" rights of way. The district court ruled that federal law, as interpreted by BLM, dictated critical legal definitions in the case relating to the establishment, scope and maintenance of the "highways."

A three-judge panel of the 10th Circuit reversed, finding that state law properly guides interpretation of the existence and scope of any 2477 roads. The case was remanded to the district court for new proceedings to address issues such as the validity of the Counties' right-of-way claims, the scope of any such rights-of-way, and whether their actions constitute "trespass" on federal lands. "It will take time to evaluate the impact of this important decision, but it appears that the Circuit Court has reversed the district court's deviation from the previously-established precedent and reminded the parties to focus on state law concepts in evaluating the counties' actions," observed Paul Turcke, General Legal Counsel to BlueRibbon. "Contrary to the cries of anti-access interest groups, I think it unlikely that a new breed of "road warriors" will spring forth as a result of this ruling," he stated. "2477 claims have always presented complex legal, factual and political challenges, and this ruling appears to only clarify the rules of the game while leaving many thorny challenges for future debate," Turcke concluded.

"R.S. 2477" refers to a now-repealed portion of the 1866 Mining Act, which states "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." While this grant of highway construction authority was repealed in 1976, rights-of-way previously created under the statute can effectively remain "grandfathered" in use and available to the public today. 2477 claims have engendered great passion and confusion throughout the West, were state and local governments, federal land managers, public access proponents, wilderness advocates and private property owners have regularly taken irreconcilable positions on 2477 assertions. "For BlueRibbon members, RS 2477 can offer additional protection to public access along some of the West's most beautiful and historically-significant routes," Hawthorne noted. "While we are disappointed that BLM joined SUWA and the anti-access groups in this case, we will continue to work with federal land managers and all interested parties in seeking solutions to this and other public lands issues in Utah and beyond, whether those solutions occur through collaboration, legislation or the courts," said Hawthorne.

 

[Rick B]

The newest news related to this decision is that the state of Utah is now pushing for more roads to be reopened under the parameters of this decision.

 

[waynehartwig]

The newest news related to this decision is that the state of Utah is now pushing for more roads to be reopened under the parameters of this decision.

Good for them! Maybe a lot of these cool old roads that we can no longer go on will be reopened! There are alot of neat places to visit out there!!!!