San Juan County is suing the feds for access to a trail near American Indian archaeological sites

The lawsuit says the feds are infringing on the county’s ownership of the pathway.

Trent Nelson | The Salt Lake Tribune Ryan Bundy rides an ATV through Recapture Canyon, which has been closed to motorized use since 2007, after a call to action by San Juan County Commissioner Phil Lyman. Saturday May 10, 2014 north of Blanding.

San Juan County is suing the federal government, saying it is the rightful owner of access to Recapture Canyon.

The lawsuit, filed in U.S. District Court for Utah on Wednesday, seeks dominion of a path in Bureau of Land Management territory that was closed to motorized use in 2007 due to damage at nearby archaeological sites. The section starts at Recapture Dam and goes south for about 3 miles, County Commissioner Phil Lyman said.

The lawsuit says the path was first put on official maps as a road by the U.S. Army in 1886. Before that, it was used as a thoroughfare by American Indians. The Army and settlers used it to travel and move goods and livestock, the lawsuit states. In more modern times, motorized vehicles used it.

The battle for access and ownership of the pathway is storied. In 2014, Lyman organized an illegal ATV ride in the canyon. Dozens of riders participated, and prosecutors later said about $300,000 worth of damage was done to archaeological sites.

The U.S. attorney’s office prosecuted Lyman, who was convicted of misdemeanor trespass and conspiracy; the 10th Circuit Court of Appeals upheld his conviction in October. Lyman told The Salt Lake Tribune on Wednesday that the prosecution was “malicious and false.”

“It’s a road that people use,” Lyman said. “It’s important to the people who live in Blanding.”

Lyman’s constituents want to be able to drive ATVs and other vehicles on the path, he said, and the argument that their driving would harm archaeological sites is ridiculous.

The BLM, the commissioner said, has conducted about seven archaeological assessments for projects such as laying a pipeline next to the pathway. Those studies showed the projects wouldn't hurt archaeological sites, Lyman said, so people traveling a road that has been used for more than a century should not do significant harm.

“There is nothing on this road that is creating any damage or threat to archaeological resources,” he said. “Roads don’t do damage to archaeological resources — it’s just a road.”

The BLM office was closed when The Tribune tried to contact a representative for comment late Wednesday night and early Thursday morning.

The lawsuit was filed by San Juan County Attorney Kendall Laws and San Diego-based lawyer John Howard, who is no stranger to fights between local and federal government in Utah. He was among a group of lawyers the state hired to conduct a potential transfer of federal lands to Utah.

The 145-page analysis released in December 2015 found that the federal government had no constitutional authority to permanently retain millions of acres of land in the West, and by doing so it was relegating Western states to a “second-class” status.

Howard did not respond to a Tribune voicemail seeking comment late Wednesday night and early Thursday morning. Laws declined to comment when contacted Thursday.

The lawsuit says the county has a right to the path into the canyon, referred to in the suit as County Road D5314, because of historical ownership and maintenance. The trail, it contends, has been maintained as a road for more than a century. While the BLM manages the land under the Federal Land Policy and Management Act of 1976, the county has a pre-existing right to it under a prior statute, RS 2477. That statute has to be recognized, the suit says, and the federal government cannot interfere with the county’s right of way.

“Rights-of-way were established by use over a period of time,” the lawsuit states, “and RS 2477 was a standing and continuous offer of a right-of-way across the public domain that was accepted by custom and practice by members of the public.”

According to the lawsuit, RS 2477 gives the county access to the “beaten path and the disturbed width of a road.” In addition to safe passage, the lawsuit says, the county has the right of “benefit and enjoyment of the Road.“

The lawsuit also seeks attorney fees, other costs and “other and further relief as the court may deem just and proper.”

Such legal action has been in the works for a while. Attached in the filings is a 2015 letter to then-U.S. Secretary of the Interior Sally Jewell, warning of a lawsuit.

Lyman said he had pushed for one long before that.

“The lawsuit, in my estimation, is about 10 years delinquent,” Lyman said. “Better late than never, but they are finally doing it.”