Road suit may define claims on feds' land
When is a highway a highway? What does the word "construction" mean, exactly? And how much jurisdiction does the Bureau of Land Management have over backcountry roads on federal land that have been claimed by states and counties?
All of those issues were put into play Friday morning in downtown Salt Lake City as the 10th Circuit Court of Appeals heard oral arguments in the latest chapter of an 8-year-old lawsuit that could end up defining how local government right-of-way claims are determined under the so-called RS2477 federal statute.
The outcome probably will determine whether Western states and counties can claim ownership of trails and roads across millions of acres of federal lands, including national parks, or if the federal government retains control and can continue to impose restrictions on use.
Revised Statute 2477 is a Civil War-era law that granted rights of way for the construction of highways over public land. The law was repealed by Congress in 1976, but existing roads were grandfathered in.
Attorneys for Kane, Garfield and San Juan counties told the three-judge panel at the Moss Federal Courthouse that the BLM has no jurisdiction over their right-of-way claims on federal land, and that state standards must be applied when assessing such claims.
Assistant Attorney General Ralph Finlayson argued that U.S. District Court Tena Campbell erred four years ago when she ruled that the counties illegally graded a series of roads on federal land in 1996 - including the newly established Grand Staircase-Escalante National Monument - to assert their RS2477 rights of way.
Those actions spawned a lawsuit that the Southern Utah Wilderness Alliance (SUWA) and Sierra Club filed against the BLM, charging that the agency had failed to protect federal lands in the monument and those that had been given interim wilderness protection.
The Campbell ruling was "procedurally invalid and devoid of any guidelines" because she gave deference to the BLM in the RS2477 claim dispute, said Finlayson. He argued that the agency can make an "initial determination" in assessing right-of-way claims, but can only use them internally as a prelude to settling the claim in court.
And once in court, Finalyson and San Juan County attorney Sean Welch said, it is the state's broader interpretation of what constitutes a highway, or construction of a road, that must apply - standards that resemble a one-time federal policy set by former Interior Secretary Donald Hodel. He determined in 1988 that road construction could be defined broadly, such as by removing rocks or vegetation from a road. Hodel also asserted that undeveloped roads and trails could be defined as highways, so long as they showed some form of use.
But SUWA and Sierra Club attorney Jerry Epstein argued that the BLM's ability to set standards on county rights of way was established in 1993, when the 10th Circuit ruled that the agency could determine the scope of road maintenance on the Garfield County-owned Burr Trail in southern Utah. Four years later, Interior Secretary Bruce Babbitt overturned Hodel's policy by defining construction in much more narrow terms and highways as thoroughfares that carry people and goods from "place to place." Finally, he wrote, state law applied to RS2477 claims only to the extent that they comply with federal law.
It is a policy that remains in place under current Interior Secretary Gale Norton, Justice Department attorney Todd Aagaard told the court.
The three-judge panel of Robert Henry, Harris Hartz and Michael McConnell gave few clues about how they were leaning on Friday, peppering both sides with questions about the BLM's history regarding right of way claims and legal precedent. But they also sought answers about the long-term consequences of each party's position.
SUWA and the Sierra Club maintain that if state standards are applied to RS477 claims, Utah and its counties will be free to pave over or expand over literally "thousands" of jeep roads, hiking trails and stream beds that the state has inventoried as existing or possible right-of-ways, including those in national parks and wilderness study areas.
"The ramifications here are enormous," Epstein said.
But the counties, small in population and huge in acreage, assert that to give the BLM veto power over their right-of-way claims will strangle them economically, denying them motorized access to mining and grazing claims and tourist vistas.
"The issue isn't whether we can grade them," Finalyson said of the roads. "The problem is that the BLM often closes them. Keeping them open and providing us access is a major issue."