Utah’s 10-year battle over disputed roads crisscrossing public lands likely just got a lot longer

Appeals court holds wilderness advocates are entitled to participate in lawsuits over 12,500 routes.

(Photo courtesy of Southern Utah Wilderness Alliance) Fourmile Canyon/Last Chance Road, also known as K7300 in Kane County, is one of 15 "bellwether" routes at issue in a three-weeklong trial in U.S. District Court in 2020. Judge Clark Waddoups is expected to render decisions this year that will guide resolution to Utah's claims to 12,500 other routes crossing public lands, but a recent appeals court ruling could enable wilderness advocates to intervene in these lawsuits and drag the proceedings out for years.

Utah leaders initiated a series of lawsuits in 2012 aimed at taking ownership of thousands of routes crossing federal land under an obscure Frontier-era law known as RS2477.

Yet a decade later, after hundreds of depositions, countless legal filings and endless hours of courtroom time, only a handful of these disputed road cases have been resolved. Years if not decades of additional action are necessary before this legal saga reaches the finish line.

Some Utah lawmakers are running out of patience, openly wondering when the state’s massive investment in this campaign will pay off and asking questions about how it can be expedited.

“We’ve been hearing about these cases almost being done for most of my life and and that we’re just [about] there and we’re one ruling away or one witness away,” said Rep. Casey Snider, R-Paradise, at a recent budget subcommittee meeting. “I’m actually concerned that we’re reaching the point where most of your witnesses who could attest to these roads are starting to die.”

His remarks were directed at state officials who were seeking additional resources to keep litigating RS2477 claims against the federal government.

“It’s very time consuming because this is in an area of law that’s very unique. And so we’re developing the law as we go,” replied Assistant Attorney General Tony Rampton, the state’s lead litigator in the rights-of-way campaign. “I share that frustration, but we’re really moving as quickly as we can. And sometimes it’s very slow going.”

Now a new decision by the U.S. Supreme Court threatens to complicate things even more and add years to the proceedings.

Last week, the high court declined a request to bar wilderness advocates from participating. Both state and federal lawyers had asked justices to reverse a lower court’s ruling that the Southern Utah Wilderness Alliance (SUWA) and The Wilderness Society are entitled to intervene in an RS2477 case related to road claims in Kane County.

This ruling’s logic applies across all of Utah’s lawsuits, according to SUWA lawyers, starting with the so-called “bellwether” case currently under consideration by U.S. District Judge Clark Waddoups. A year ago, Waddoups presided over a three-week trial on 15 representative roads in Kane County, hearing from 75 witnesses and 500 exhibits.

He is still fielding post-trial briefs in the case and will resume court proceedings next month, with a decision expected by the fall that would then certainly be challenged to the 10th Circuit Court of Appeals.

The plan is for Utah and federal officials to apply the final outcomes on these 15 roads to negotiate settlements on the other 12,500 disputed roads they are fighting over in 22 of Utah’s 29 counties.

The trouble is that Waddoups had refused to allow SUWA to participate in last year’s trial, even after the 10th Circuit of Appeals had ruled the Utah group could intervene as a defendant in a separate Kane County road case. In a split ruling in 2019, a three-judge panel concluded that SUWA and The Wilderness Society had an interest in the case’s outcome that could not be adequately represented by the federal government, the suit’s named defendant.

“We are focused on using science and common sense to protect our land, our air, and our water for the health of our communities and for future generations,” said Phil Hanceford, conservation director at The Wilderness Society. “[The Supreme Court’s] decision not to review our participation in this important case recognized that our input is valuable when decisions are made about the impacts development could have on our shared public lands. There are appropriate places for roads, but cutting through Utah’s spectacular red rock wildlands and creek beds are not those places.”

Now SUWA plans to ask for a new trial in the bellwether case, according to Steve Bloch, the group’s legal director.

“The dust is going to need to settle,” Bloch said. “It may very well be that there needs to be a retrial in light of this ruling. The court knew that on the way in. Judge Waddoups recognized that risk, but said he was going to forge ahead.”

Rampton, however, said any do-over would be limited, assuming Waddoups even grants SUWA intervention.

“Only after that determination could we know if a new trial is in order,” Rampton said. “It is very possible there would be an abbreviated new trial on the limited issues that SUWA would be allowed to argue.”

To prevail on its claim to each of the disputed 12,500 routes, the state must demonstrate that the route was open to the general public for 10 continuous years prior to 1976, the year Congress repealed RS2477. These claims rely on the recollections of local residents who can attest to their personal use of these routes decades ago, but they are aging and passing away before they can testify in court. To preserve their memories for the record, the state has taken depositions of at least 650 witnesses over the past several years.

SUWA was blocked from participating in about half these preservation depositions, according to Bloch, who believes that with the new rulings such testimony may now be deemed inadmissible as evidence in court.

According to a SUWA analysis, the disputed routes cover 36,000 miles. The “vast majority” are obscure two tracks that serve no meaningful role in rural transportation, Bloch said.

“The state, the counties are trying to seize control over the federal lands through this antiquated law. The courts recognize that that’s the case, recognize that these are truly public lands,” Bloch said. “We are going to do everything we can to have the trial redone, to have SUWA sitting at the table able to cross-examine the state and county witnesses, to present its own evidence and make its own arguments.”

Had SUWA lawyers participated at the trials, hearings and depositions, they would have tried to clarify the typically vague testimony witnesses gave, querying them on the time, place and manner of their use of the roads, whether they saw others on those routes and whether they knew where they were going, according to Bloch.