Utah Backs Off Claim to Road Across Federal Lands

SALT LAKE CITY, Utah, September 21, 2004 (ENS) - The state of Utah has withdrawn its first claim to a road across federal land under a new process agreed last year by Interior Secretary Gale Norton and then Utah Governor Mike Leavitt. Conservation groups successfully challenged the claim by digging up historical records showing that the road was built as a federal highway, not by pioneering settlers.

The state and Juab County staked a claim to the 99 mile Weiss Highway in Utah's west desert region, saying it was a road built to open up the West, and although it crosses federal lands, it really belongs to the county under a Civil War era law known as RS 2477.

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The Weiss Highway in Utah was determined to be a federal highway. (Photo courtesy BLM)
The state and county applied to the Bureau of Land Management for a Recordable Disclaimer of Interest in the Weiss Highway. This disclaimer does not create or convey any new rights, but acknowleges that the United States has no remaining interest in an existing property right or ownership established under law, as outlined in the memo of understanding signed by Norton and Leavitt.

The outcome of this claim is viewed as a national precedent for thousands of potential claims covering thousands of square miles of federal, state and private lands.

The conservationists object to these attempts to turn old trails and cow paths into public highways across wilderness areas. They now say that the state's withdrawal on Thursday is evidence that the RS 2477 acknowlegement process is flawed and too costly for local governments and taxpayers.

Revised Statute (RS) 2477 is a law adopted in 1866 to facilitate the settlement of the West by encouraging the development of a system of roads and trails. A short law, it states, "the right of way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted."

Although Congress repealed RS 2477 in 1976, any valid existing rights-of-way were honored. This so-called loophole has led to decades of dispute over which routes were legitimate highways as of 1976 and so can be maintained or developed as highways, and which were not and must be allowed to remain as they are.

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In 1976, the Smith family bought a ranch in Kane County, Utah. One day in 1999, the family found the Kane County road crew supervisor and the county attorney cutting the bolts off their gate, claiming the property was an RS 2477 highway. They fought the claim in court and won. (Photo courtesy SUWA)
The Western Counties' Resources Policy Institute represents the view that the counties have, and do not need to claim, jurisdiction over these routes. In their view conservation groups are "anti-access" groups that want to "lock" the public out of public lands.

The conservationists fear that some states and counties are using the old law to propose thousands of "highways" through American wilderness.

Each side views the other as a "special interest" group.

To claim a road, route, or cowpath under the RS 2477 loophole, a state or county must first prove that it constructed that route before the land was protected as a park, refuge, forest or before October 1976, when the law was repealed.

Utah presented its first claim, to the Weiss Highway, with the belief that it was not contestable. The validity of this claim was questioned in May when research by conservationists proved that the route was built by federal crews through the Depression era Civilian Conservation Corps and it was not built by settlers, as the state had claimed.

"The historical record we dug up - and that the state, after spending $8 million, didn't find - shows that this is a federal road built by federal employees with federal funds to give federal livestock permitees access to their federal leases," said Lawson LeGate, Sierra Club Senior Southwest regional representative.

"Utah clearly believed its first claim was a slam dunk, but its flaws show how fraught with problems this process is," said The Wilderness Society’s Kristen Brengel. "We need a modern solution that will recognize legitimate road claims while also protecting private property and the environment. The current process doesn’t do that."

Now the nonprofit public interest law firm Earthjustice, on behalf of the conservationists, is keeping an eagle eye on future RS 2477 road claims by the state of Utah.

Attorney Ted Zukoski of Earthjustice noted that the state’s support of an RS 2477 claim by Utah’s San Juan County in Canyonlands National Park is "indicative of their abuse" of this statute.

The next battle is the claim of San Juan County, supported by the state, that the Salt Creek streambed in Canyonlands National Park is a RS 2477 road. The Salt Creek area full of archeological artifacts and rock art from the Anasazi culture and spectacular rock formations.

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Wedding Ring Arch, Salt Creek Canyon, Canyonlands National Park (Photo credit unknown)
"The lawsuit at Canyonlands demonstrates that RS 2477 is a tremendous threat to the West’s crown jewels, such as its national parks, national wildlife refuges, and other wild areas," said Zukoski. "If these places are to be protected for future generations, we need to close the RS 2477 loophole. Given the Weiss Highway fiasco, we’ll be checking all future applications very carefully."

But the Utah branch of the federal Bureau of Land Management says that "The right-of-way acknowledgement process under the memorandum of understanding "does not apply to environmentally sensitive areas such as national parks, refuges, and wilderness areas."

In a 1993 memo on the impact of RS 2477, then Utah State Coordinator for the National Park Service (NPS) Martin Ott wrote, "Potentially, there are thousands of possible RS 2477 rights-of-way in the Western units of the National Park Service. Many of these possible rights-of-way are extensive and if validated, would impair scenic, natural, historic, wildlife and wilderness resources. Also impaired would be the ability of the NPS to manage its areas for the purposes for which they were established."

According to Zukoski, a bill (HR 1639) proposed by Colorado Congressman Mark Udall in April 2003 would provide for a more common sense, balanced approach that will protect sensitive public lands and private lands from fraudulent claims and provide clear instructions for recognizing valid claims. The bill is now in committee awaiting Executive Comment from the Department of the Interior.

In February 2004, Congress's research arm, the General Accountability Office (GAO), concluded that the Bush administration's approach in Utah is illegal.

"The state should be looking for real solutions that would resolve this issue while protecting Utah’s canyons and other beautiful wild places," said Heidi McIntosh of the Southern Utah Wilderness Alliance. "Instead, the state has spent more than $8 million dollars and the results are a flawed process, a black eye for Utah, and much-loved public lands that are threatened by a confusing and outdated loophole."

For more on the RS2477 process visit: http://www.ut.blm.gov/rs2477/weisshighway.htm

The Western Counties' Resources Policy Institute is found at: http://www.rs2477roads.com/

The Southern Utah Wilderness Alliance RS2477 site is at: http://www.suwa.org/page.php?page_name=Camp_2477_Home