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State to shoulder Utah counties' RS2477 court costs

Published May 21, 2013 7:44 am

Lands • Counties run up huge tabs fighting feds on road disputes.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah counties asserting legal title to disputed routes over federal land can expect some financial relief under a special appropriation recently authorized by the Legislature.

Most of the state's 29 counties have filed costly lawsuits against the federal government claiming ownership to rights of way under the now-repealed federal law known as RS2477.

While several state lawyers are assigned to litigate these cases, Kane and other counties are generating hefty legal bills with outside firms as they wrangle federal authorities over the status of hundreds of routes covering many thousands of miles.

Because the counties are pursuing a legal recourse that advances Utah's position against the federal government, the state should assist them, says Kathleen Clarke, who runs Gov. Gary Herbert's Public Lands Policy Coordinating Office.

Clarke outlined the program Monday before the Constitutional Defense Council (CDC), a panel of state and county officials that guides strategy for asserting state control over public lands within Utah's borders. The counties can't bill the state for its staff time and the legal work must support the state's RS2477 plan to qualify, Clarke said.

The RS2477 movement enjoys broad support within the Legislature, but conservationists and others consider this legal effort a waste of taxpayer dollars aimed at promoting extractive industries in some of Utah's scenic locales and thwarting wilderness designations. Many disputed routes are barely passable, or even visible in some cases, and play no genuine role in these counties' economies, says the Southern Utah Wilderness Alliance's Steve Bloch.

Kane County, Utah's most aggressive RS2477 litigant, incurred $800,000 in outside costs last fiscal year and will likely incur at least another $1 million this year, according to Clarke. The state agreed to reimburse $350,000 for last year because Kane's claims generated important court rulings that are paving the way for other counties to succeed, Clarke said.

Now under an appropriation urged by Rep. Mike Noel, a Republican representing Kane County, the state will pony up several thousand dollars to cover any county's costs above $200,000 this fiscal year. But there are some catches.

"It's not a legal right. It's discretionary," said Attorney General John Swallow, a CDC member. Reimbursement amounts are also subject to the state's ability to pay them and the program expires at the end of 2016.

Under a draft reimbursement schedule the council approved Monday, counties could get back half their costs between $200,000 and $300,000, three-quarters of their costs above $300,000.

Clarke put it this way: "If you get to $700,000, the split is 50-50. If it gets beyond that, the state carries the heavier burden." The counties have until the end of June to apply for reimbursement and the CDC will determine what amount to grant based on the applications' supporting materials.

bmaffly@sltrib.com