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R.S. 2477 ROADS: Where wilderness is at issue, lawsuits will continue

Published September 24, 2005 12:01 am

No easy out
This is an archived article that was published on sltrib.com in 2005, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The governor's office announced the other day that the state and counties will record a list of roads in each county that cross public lands. The purpose is to identify rights of way across federal lands granted under an 1866 law commonly known as R.S. 2477.

The announcement by Lynn Stevens, the state's public lands policy coordinator, suggested that recording these lists, coupled with an agreement now in the works with the federal Bureau of Land Management about how roads across BLM-managed lands will be maintained, would put an end to legal struggles over most of these roads in Utah.

We doubt that.

If the state and counties continue to press aggressively for rights of way on jeep trails and similar roads through sensitive federal lands in Utah where potential wilderness designation is at stake, the environmental groups will rightly continue to wage legal war against these claims. Ultimately, these disputes will have to be decided by the courts.

Congress repealed R.S. 2477 in 1976, but it grandfathered previous claims to rights of way. Unfortunately, there was never any requirement under the old law that these claims be documented. This ambiguity has led to lawsuits involving counties, the state, the BLM and environmental groups over disputed county roads across federal land.

Earlier this month, the 10th U.S. Circuit Court of Appeals issued a ruling in one of these suits that overturned an earlier standard for acquiring an R.S. 2477 right of way. The appellate court held that counties would have to prove that disputed rights of way had been in continuous public use for 10 years prior to 1976.

Though that ruling was a victory for the state and the counties, it seems like a stretch to say that all the counties have to do is document the roads to establish title. Lawyers on both sides of the case still are studying the court's ruling, and they are not sure what it means for the future.

For example, the court affirmed that the burden of proof is on the counties to enforce rights of way against the federal government. However, the court also said that no government act was required to accept a right of way, which could be manifested simply by continuous public use for 10 years.

Proving that use might be difficult, however, since occasional use is not sufficient.

This does not look like a road to fewer lawsuits.