RS 2477 is a very short law, consisting of only one sentence: "The right of way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted."
RS 2477 was repealed in 1976 by a law establishing a comprehensive management framework for the Bureau of Land Management, titled the Federal Land Management and Policy Act (FLPMA). But this was after thousands of roads had been created and FLPMA expressly recognized these valid existing rights.
Huntsman's support of state and county ownership of these roads is nothing new. The dispute over title to these roads began in the late 1980s and early 1990s as the Utah wilderness debate became a heated national issue. Counties depend on these roads to support their economies and the public's recreation needs. Despite FLPMA's protection of valid existing RS 2477 roads, the BLM has acted as though it can simply ignore these rights. But the BLM is wrong.
The BLM, National Park Service and wilderness activists took the issue to the federal courts after mechanical maintenance and improvements were made to the Burr Trail and 16 other roads in Kane, Garfield and San Juan counties.
As many decisions were upheld in the 10th Circuit Court of Appeals, several key RS 2477 points were thought to have been settled, including that it is state law which determines what it takes to establish a right of way and, once established, the rights of way are limited so that the counties cannot take actions that adversely affect adjacent public lands in any significant way.
In one ruling regarding the Burr Trail, U.S. District Judge Bruce Jenkins wrote, "The rights and powers of the United States and the rights and powers of Garfield County are correlative rather than plenary, absolute or exclusive. The law expects the County and agency to speak to each other about work to be done on lands to which they both have important correlative rights." Jenkins also noted, "It shouldn't be that hard to do."
The existence of roads and the valid existing rights associated with them obviously directly impact the bureau's management decisions. On the other hand, Congress specifically gave the agency a mandate to protect the valid existing rights of the public and of local governments. BLM's management authority was never intended to be absolute, especially in regard to public access. The relationship was designed to be a partnership. It's unfortunate that such a relationship is so difficult to have.
It's easy to spin Huntsman and rural county commissioners as attempting to "tip the balance against land protection," but the issues aren't that simple. The BLM cannot simply ignore state and local governments. When BLM does this, state and local officials must react.
Huntsman is right to support the state's and counties' continuing defense of their roads.
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Brian Hawthorne is public lands director for The BlueRibbon Coalition, a national recreation group based in Pocatello, Idaho.
