Utah’s San Juan County files its own claim against U.S. government over access to Recapture Canyon

Leah Hogsten | The Salt Lake Tribune Blanding residents illegally built this ATV trail through Recapture Canyon, which the BLM closed to motorized use in 2007 to protect archaeological sites. After a decade of failed efforts to reopen the route, San Juan County is now suing the federal government to get title to it under RS2477, a repealed law that once granted counties' rights-of-way to routes cut across public lands.

San Juan County is spending tens of thousands of dollars claiming a right of way through controversial Recapture Canyon.

Without state support, officials in the southeastern Utah county recently filed a stand-alone lawsuit against the U.S. government, citing various historic records indicating the county maintained a “road” there since 1886.

The canyon, famed for cliff dwellings and an illegally built ATV trail, has been a source of friction for years between county officials and federal land managers, who closed the canyon east of Blanding to motorized use in 2007 to protect its archaeological resources.

Most recently, the Bureau of Land Management declined the county’s long-standing request to authorize a motorized route there, a decision the state had challenged before the Interior Board of Land Appeals.

But Utah officials are not participating in the county’s new claim filed in U.S. District Court under the long-repealed RS2477, a frontier-era law that granted counties title to roads crossing public land. To qualify, such roads had to be in continuous use and open to the public for at least 10 years before 1976.

Had the state wrapped Recapture into the existing federal suit over San Juan County’s road claims, the action might not cost county taxpayers anything.

Instead, the county, which is already spending nearly $1 million a year on legal services, hired John Howard, a high-priced San Diego-based lawyer, to draft and file a quiet-title action in November. That suit now identifies the Recapture route as County Road D5314, running from Recapture Dam south to Perkins Road, and seeks a right of way 66 feet across.

A state database indicates the county paid Howard’s firm more than $228,000 in 2016 and 2017.

In 2015, Utah officials filed a notice of intent to pursue title to the Recapture right of way with the Interior Department, but the Utah attorney general’s office has yet to add Recapture to an ongoing suit over San Juan’s many road claims. Once the feds respond to the latest suit, the state could decide to intervene on the county’s side, according to Assistant Attorney General Kathy Davis.

The northernmost portion of the 9.22-mile route through Recapture was the scene of a 2014 protest ride organized by San Juan County Commissioner Phil Lyman. While Lyman did not drive his ATV on closed routes, his involvement led to a conviction on conspiracy charges in federal court, a 10-day sojourn in jail, and being honored as Utah’s county commissioner of the year in 2015 for his willingness to stand up to federal “overreach” on public lands.

(Trent Nelson | The Salt Lake Tribune) In a 2014 protest, notorized vehicles cross into a restricted area of Recapture Canyon, which has been closed to motorized use since 2007, after a call to action by San Juan County Commissioner Phil Lyman.

Historic documents described in the new lawsuit could support Lyman’s assertion that Recapture Canyon was once an important transportation corridor and therefore subject to RS2477. U.S. Army maps from 1886, for example, depict a “thoroughfare.” The county “regularly expended public funds” maintaining it after 1925 and later designating it D5314, according to the suit. A 1903 edition of “The American Anthropologist,” a scientific journal, describes the route as “well traveled.” Aerial photographs from the 1950s through 1976 “confirm the continuing existence and use of the road.”

The county “has not abandoned said road,” the lawsuit states. “Indeed, it has continuously and regularly maintained same and its public designation as a county road.”

Evidence of this maintenance is hard to discern on the ground today, unless you count the trail that off-road enthusiasts cut along the canyon’s benches, crossing Recapture Creek in half a dozen places. Without BLM authorization, trail builders moved boulders, limbed ancient juniper trees and installed crossing grates. Two local men were prosecuted and fined for the work after the BLM determined trail construction damaged archaeological sites and could lead to looting.

The county did build a road down the first mile below the dam to serve a pipeline, but it was installed in the early 1980s — several years after the repeal of RS2477.

Critics point out that San Juan County failed to list Recapture Canyon, hardly a mile from the county’s main population center, among the routes it intended to claim back in the early 1980s. The county’s interest in the canyon did not appear to register until it became a popular destination for ATV riders, which attracted the attention of wilderness advocates who pressured the BLM to restrict access. The canyon has been a public lands flashpoint ever since.

Howard is not new to Utah’s public land battles. The attorney was among the legal team hired by the state a few years ago to analyze Utah’s demand that the federal government hand over 31 million acres of public land. The lawyers led by the New Orleans-based Davillier Law Group recommended the state sue, estimating it would cost $14 million to carry a case of original jurisdiction before the U.S. Supreme Court.

Although the state has yet to file a suit, San Juan County then hired Davillier, paying it $561,000 in 2016 and 2017.

Howard’s billings to the state came under fire when documents released under a public-records request showed he was invoicing for top-shelf meals, accommodations and travel arrangements.

In a filing Monday, federal attorneys informed the court they need a 60-day extension to respond to San Juan’s suit, which was belatedly served Feb. 23. Before proceeding, they want to determine whether the case should be incorporated into the existing lawsuit over San Juan County’s many other RS2477 claims, covering hundreds of miles.