Appeals Court Upholds Federal Supremacy Over Utah County
DENVER, Colorado, September 3, 2009 (ENS) - In a ruling with national impact, the Tenth Circuit Court of Appeals decided Monday that a Utah county may not override federal rules meant to protect wildlife, streams, archeological sites, wilderness and monuments by relying on unproven highway rights of way.

Conservationists filed the lawsuit after Kane County, Utah tore down signs posted by the Bureau of Land Management in the Grand Staircase Escalante National Monument, a wilderness and national recreation area. The signs were intended to protect areas from damage by off-road vehicles and other vehicles.

The county placed its own signs inviting off-road vehicle use in the same places where it was prohibited by the BLM, a federal government agency.

In a lawsuit brought by Earthjustice, the Southern Utah Wilderness Alliance, and The Wilderness Society, the court rejected the county's attempt to take control of the federal public lands.

The judges reasoned that the county's actions violated the supremacy clause of the U.S. Constitution. That clause provides that federal law supersedes local or state laws involving federal issues where the two conflict.
Kane County takes in Bryce Canyon's red rocks. (Photo by Jaume Porschista)

The court also held that the county must first prove that the rights it claimed were valid before federal managers had to accommodate them.

Kane County claims it owns the routes based on Revised Statute 2477, a law from 1866, the year after the Civil War ended.

Congress then passed legislation offering an open-ended grant of "the right of way for the construction of highways over public lands, not reserved for public uses."

Although this law was repealed more than 30 years ago, Kane County argues that because R.S.2477 remained in effect for 110 years, it still allows agencies, groups and individuals to assert rights-of-way across federal lands if they can prove extended pre-existing use.

Kane County Commissioners passed a resolution last year "to protect and preserve Kane County's rights-of-way and highway access across federally managed lands as granted by the United States Congress and to affirm the authority and jurisdiction granted under Revised Statute 2477 in the management of the County's Transportation System of public highways."

Unlike any other federal land statute, the Kane County resolution pointed out, "the establishment of R.S. 2477 rights-of-way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested."

There are thousands of miles of claimed R.S. 2477 rights of way across federal lands in the western United States. This case involves some of those rights. "In most instances, the scope and extent of such rights have never been placed at issue," the court notes in its decision.

In Utah alone, there are more than 10,000 R.S. 2477 highway claims for primitive trails in national parks, forests, wilderness areas, and lands proposed for wilderness protection.

"This case is important because it will thwart the abusive efforts by some counties to hamstring protection of federal lands by merely claiming that old trails, cow paths and streambeds are actually county highways immune from federal law," explained Heidi McIntosh, one of the attorneys who brought the case.

The BLM manages nearly 22.9 million acres of public lands in Utah, representing about 42 percent of the state. Located mostly in western and southeastern Utah, these lands feature some of the most spectacular scenery in the world, from remote mountain ranges to shapely red-rock canyons.

Grand Staircase-Escalante National Monument (Photo by Wolfgang Staudt)

In Kane County, nearly 1.3 million of the 1.6 million acres of federal public land lie within Grand Staircase-Escalante National Monument. President Bill Clinton designated the area as a U.S. National Monument in 1996 using his authority under the Antiquities Act.

The other areas involved in this case include: Glen Canyon National Recreation Area, Paria Canyon-Vermilion Cliffs Wilderness Area, and Moquith Mountain Wilderness Study Area.

Although these lands are managed under a variety of federal statutes and regulations, all of the lands in question must be managed “subject to valid existing rights,” the appeals court wrote in its decision.

In court, Kane County contended (1) the environmental plaintiffs lacked standing; (2) the case became moot when the County rescinded the challenged ordinance; (3) the environmental plaintiffs did not possess a cause of action; and (4) both the United States and the State of Utah were necessary and indispensable parties.

Rejecting each of these assertions, the district court found that Kane County's activities were preempted and enjoined it from enacting similar ordinances or posting signs on unproven R.S. 2477 routes.

The appellate court was not persuaded, rejected all those arguments, and upheld the district court's ruling.

"This is a great day for the protection of our national parks, monuments and wilderness areas in Utah and across the country," said Ted Zukoski, one of the Earthjustice attorneys who handled the case. "All of the judges agreed that Kane County broke the law when it posted signs opening closed routes on public lands without proving they have a right-of-way."

Zukoski noted that there is still plenty of motor vehicle access across federal lands in Kane County. Under the federal management plan, 908 miles of routes remain open in the Grand Staircase-Escalante National Monument.

The ruling did not affect the ability of local governments to work cooperatively with federal land managers on management of major open roads crossing federal lands.

"This is a common-sense ruling that should work for everyone," said Phil Hanceford of The Wilderness Society. "It leaves plenty of room for counties and the government to maintain a road system that gets people out to their public lands, while protecting the values Americans enjoy at one of the country's most extraordinary natural treasures. And anyone who has been to these amazing natural places knows they are treasures worth protecting."

Copyright Environment News Service, ENS, 2009. All rights reserved.