Bellwether trial starts on Utah’s claims to 12,000 roads on federal land

For the rest of February, U.S. District Judge Clark Waddoups will hear evidence and arguments in his Salt Lake City courtroom over the fate of 15 roads that Kane County and the state of Utah insist belong to them under an obscure law enacted more than century and a half ago as a way to promote Western settlement.

Known as RS2477, the long-repealed law has been the basis for Utah to lay claim to 12,000 routes on behalf of counties in 22 “quiet title” lawsuits against the federal government. In search of a pathway through this potentially endless legal morass, Waddoups has singled out 15 “bellwether” routes, including the famed Hole-in-the-Rock Road, following the route taken by intrepid Mormon pioneers, and the Paria River bottom, site of a 2009 protest ride. This case is expected to provide a framework for resolving the many other disputed routes splayed out across Utah’s public lands like a vast spiderweb.

The trial opens Tuesday, when the judge is expected to hear from experts and witnesses who will recall driving these routes before 1976. That’s when RS2477 was repealed with the passage of the Federal Land Policy and Management Act.

(Photo courtesy of Southern Utah Wilderness Alliance) The Paria River in Kane County is one of 15 "bellwether" routes at issue in a month-long trial in U.S. District Court that opens Tuesday, Feb. 4, where Judge Clark Waddoups will render decisions that will guide resolution to Utah's claims to 12,000 other routes crossing public lands.

Many rural Utahns depend on public lands “to ranch, farm, mine, hunt, fish and recreate,” and that can’t happen without access to and through federally managed lands, which make up most of the territory in many Utah counties, according to the state’s pretrial brief from Assistant Utah Attorney General Tony Rampton and his colleagues.

(Scott Sommerdorf | Tribune file photo) With BLM agents on the left and anti-ATV protesters on the right, an ATV crosses the Paria riverbed. ATV and off-road vehicle riders numbering just over 100 protested BLM road closures in Grand Staircase-Escalante National Monument. May 2009.

“A vast network of roads created through generations of public use, authorized by Congress beginning in 1866 through Revised Statute 2477, forms the necessary transportation system that facilitates the use and enjoyment of the public lands,” the state’s legal team wrote. “These roads provide indispensable access to towns, mines, ranches, resources, grazing allotments, water systems, lands held in trust for the benefit of Utah’s schoolchildren, family camping and picnic areas, and unbelievable vistas.”

The 15 Kane County routes at issue each represent entire categories of routes. How Waddoups rules on each will help draw a road map for resolving title disputes to thousands of others. That’s the idea, though his ruling will likely be appealed.

All but one of the bellwether routes run though or near wilderness study areas and most are in Grand Staircase-Escalante National Monument’s original boundaries, which President Donald Trump reduced two years ago by almost half. Nearly all the routes traverse land administered by the Bureau of Land Management, with stretches that cross private and state trust land. The Sit Down Bench Road, however, is mostly in the Glen Canyon National Recreation Area.

Waddoups toured the roads in 2018.

The Southern Utah Wilderness Alliance has been granted partial intervenor status on the side of the federal government, hoping to beat back the state’s claims. The group sees Utah’s RS2477 campaign as a bad-faith gambit to sabotage future wilderness designations by winning rights of way that counties can then bulldoze and pave as they see fit.

The claims have nothing to do with serving transportation networks, argues SUWA legal director Steve Bloch.

“That is ridiculous,” Bloch said in an interview. “These are, for the most part, roads to nowhere. They start nowhere; they end nowhere. They were used for ranching. That’s what the primary use really was, for cutting posts, for rockhounding, for sightseeing, for hunting. The statute [RS2477] was meant to encourage the settlement of the West. To try and shoehorn in this modern-day recreation use or permitted use in ranching to fit that statute is very inapt.”

According to a SUWA analysis, about 80% of all disputed routes are designated by counties as Class D roads, which, by definition, do not receive regular maintenance. The rest are Class B, which get occasional grading. SUWA complains that some are so obscure they can barely be detected on the ground.

“They are stream bottoms. They are two tracks in the desert," Bloch said. "They may be used now for off-road vehicle use or for ranchers. But that is not the same thing as a 2477 highway.”

While SUWA does hold intervenor status, Waddoups has largely sidelined the group at trial, allowing it to submit written filings but not make presentations in court or question witnesses.

After nearly a decade of litigation and hundreds of depositions, only two of Utah’s RS2477 claims, encompassing 16 routes, have been brought to trial with mixed results. Millions of dollars, many going to outside law firms, have been spent without much to show for it so far.

Utah hopes this month’s trial, and Waddoups’ subsequent decision several months later, will settle numerous outstanding issues of law, allowing the court to set up an efficient system, perhaps using special masters, for processing thousands of road claims.

Federal lawyers say many disputed routes, such as Hole-in-the-Rock, should be culled from the state’s list because they remain open to public use without BLM interference, so there is nothing to litigate. Those that aren’t open, they add, fail to meet the criteria for RS2477 routes.

To assert a successful claim, the state must prove "construction, of a highway, over federal public lands not otherwise reserved for public purposes," then show that the "highway" saw 10 years of continuous public use, they wrote in the government's pretrial brief.

The state and Kane County have produced no "evidence regarding qualifying construction, including construction by general public use. What evidence there is suggests the federal government or its permittees constructed several of the routes," the brief states. "Nor do most of the routes appear to be highways with destinations other than the routes themselves. Several of the routes also traverse lands that were not federal at the time of construction, or that were reserved for other public purposes."

Many of the routes, the feds argue, don’t appear in the historical record until shortly before 1976, the year RS2477 was repealed.

Utah plans to usher through a parade of longtime Kane County residents, or depositions from those who have died, to testify otherwise. Among the 57 witnesses who could testify, according to court filings, is Bobby Reed Swapp, who recalled, in a 2015 deposition, his first drive along the Paria River in a 1958 Chevy pickup, and using a 1965 Chevy to hunt along the Elephant Cove Road.