Judge refuses restricting Kane County's RS2477 rights of way
A federal judge has decided against placing specific limits on what improvements and maintenance Kane County can perform on several public-lands routes it has recently won from the federal government.
In his latest ruling in Utah's ongoing RS2477 legal saga, U.S. District Judge Clark Waddoups found that counties deserve some flexibility in keeping such routes usable.
In a hearing Thursday, Assistant U.S. Attorney Romney Philpott said the judge's order could be interpreted as a green light for the county to unilaterally perform work outside the rights of way as determined by the court at trial. This is a recipe for future conflict, he argued.
But the judge said his 120-page ruling in the case, handed down March 20, gives sufficient guidance.
"I'm not going to anticipate every circumstance that might arise. What if a big boulder rolled down and blocked the road?" Waddoups said. His ruling Thursday is the final call in this Kane road dispute before an expected appeal to the 10th Circuit Court in Denver. The case is widely viewed as a crucial test for suits brought on behalf of 22 Utah counties seeking title to roads across public lands under the repealed federal statute known as RS2477.
This case involved just 15 route segments. Awaiting trial is a much larger suit Kane brought seeking title to nearly 900 segments, most of them inside the Grand Staircase-Escalante National Monument.
The order's language that gave the feds heartburn said "nothing herein shall preclude the continued existence, use, repair or maintenance of any appurtenant highway feature or facilities, such as cuts, fills, slopes, culverts, cattle guards, drainage runouts, clear and visibility zones, etc., nor will it preclude deviations in the course of the road caused by natural events."
This could enable Kane to beef up a route across public land without consulting the Bureau of Land Management, federal lawyers argued. The county responded that such improvements are often reasonable and necessary and should not be barred because they exceed the right of way granted by the court. "Kane County has no intent to sneak out there and do something new. This is about preserving the status quo," said Kane's lawyer Shawn Welch.
But environmentalists are deeply skeptical given some Utah counties' past willingness to make unauthorized road improvements.
"Shouldn't the parties and the public know what activities are allowed and not allowed?" said Steve Bloch of the Southern Utah Wilderness Alliance. "To kick it down the road for future lawsuits to decide, that isn't reality. The reality is Kane County has shown no compunction about taking matters into their own hands."
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