Tenth Circuit Challenges the Federal Government’s Position on State’s Rights-of-Way in Southern Utah

In March 2013, the federal district court in Utah awarded the State and Kane County rights-of-way over 12 roads crossing federal public lands. The federal government claims that it was an error. But on September 29, 2014, the Tenth Circuit Court of Appeals three-judge panel challenged the federal government’s position.

The State and Kane County filed this lawsuit under Revised Statute 2477 (R.S. 2477). R.S. 2477 allowed homesteaders and miners to build roads over public lands to settle the West. Congress repealed R.S. 2477 in 1976, but directed federal agencies to recognize preexisting R.S. 2477 rights-of-way. Today, for the federal government to recognize such rights-of-way, Utah and its counties must prove in federal court continuous use of each claimed road for at least 10 years before 1976 (the date of R.S. 2477 repeal). Live witness testimony on road existence and use is necessary to show 10 years of continuous use. Many witnesses who can remember and describe the roads are older than 70. As time goes by, they lose memories, get ill, and pass away.

For Utah R.S. 2477 has become a protection from potential federal decisions that could block access to and prohibit multiple-use on public lands. In contrast, the Southern Utah Wilderness Alliance (SUWA) and other environmental organizations view this litigation as a threat to conservation efforts and wilderness designations, including a proposal for wilderness designation under America’s Red Rock Wilderness Act (proposed legislation).

Contrary to popular propaganda, the roads in question are neither “ghost roads,” nor “roads to nowhere.” These roads enable citizens to access private land, state grazing allotments, sources of water, scenic destinations, and more. Furthermore, the conservation groups that intentionally distort the issue ignore the fact that under R.S. 2477 the federal government granted these rights-of-way to the state long ago, and the current use of a road—abundant or sparse—does not nullify the rights existing as of 1976.

Kane County and the State were successful in getting title to 12 out of 15 claimed roads in the federal district court in Utah. The federal government appealed this decision to the Tenth Circuit. David Shilton, attorney for the federal government, argued that the federal court did not have jurisdiction to hear the case because the United States has never closed the roads in question, therefore, creating no dispute necessary to bring the case to court. The judges seemed skeptical of these claims. Judge Phillips, appointed by President Obama, stated that Shilton’s argument could result in “decades and decades and decades” to pass without resolving the issue. He was concerned that this delay favors the federal government by making it more difficult for the state and counties to prove their case.

Another Obama appointee, Judge Bacharach, challenged Shilton’s argument that the lower court improperly considered post-1976 uses to determine the widths of the rights-of-way. Judge Bacharach reasoned that the rights-of-way needed to comport with “current day’s standard of safety.”

Unsurprisingly, the federal government focused on the argument that it most consistently touts—that the “open” status of a road should prevent a federal court from granting Utah title to the roads. According to the federal government, if everyone can use the roads then there is no dispute as to title. Misleading, this argument ignores the fact that the federal government maintains control of these roads and refuses to recognize state and county rights under R.S. 2477. As Judge Phillips pointed out, this argument is but a delay that ultimately benefits the federal government: sooner than later those witnesses that can testify to 10 years of continuous use before 1976 will all have passed away.

To the chagrin of conversation groups, the Tenth Circuit did not discuss their claims. Among these is the argument that the statute of limitations bars some of the state’s claims; and an argument based on a recent case involving that Salt Creek Road that conservation groups hoped would persuade the 10th Circuit to conclude that use by cattlemen, farmers, shepherds, fishermen and hunters does not count as continuous use—an argument that seems to controvert the very purpose for which Congress enacted R.S. 2477.
The mood of the 10th Circuit seemed promising for Utah and Kane County, though its conclusion is by no means predictable. The court took the matter under advisement and will issue its decision in the upcoming months.

Potential rulings in Kane County’s lawsuit will affect the outcomes of the similar quiet title actions to over 12,000 roads in Utah crossing federal public lands. The outcome of this case also affects conservation interests of various environmental groups who advocate for “roadless” designation for many of the impacted areas. The 10th Circuit’s decision will set legal precedent for how Utah, its counties, the federal government, and conservation groups resolve pending R.S. 2477 lawsuits in other counties.

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