July 3, 2007
Contact: Heidi McIntosh, 801.428.3980
Federal Ruling Reaffirms Protection for Grand Staircase Escalante National Monument
Court Dismisses County Suit Claiming that “Roads” Ignored by Land Managers
SALT LAKE CITY -- In a ruling with broad implications for federal public lands, U.S. District Court Judge Bruce Jenkins on June 29th threw out a lawsuit brought by two southern Utah counties which claimed that managers of the Grand Staircase Escalante National Monument disregarded their so-called R.S. 2477 “highway rights-of-way.” The suit also claimed that monument managers illegally interfered with county water rights.
The suit sought to enjoin the implementation of the Monument’s 1999 management plan, which protected the fragile natural resources of the area by carefully limiting travel to a 1,000 mile network of roads. ORV use on these routes was banned. SUWA and The Wilderness Society intervened in the case, and joined the federal attorneys in asking the court to dismiss the suit.
The plaintiffs, Kane and Garfield Counties, have long relied on the assertion of right-of-way claims under a now-repealed statute known as R.S. 2477 to claim that dirt trails, dry stream beds and faint tracks are actually highways. R.S. 2477 was enacted in 1866 and provides that “the right of way for the construction of highways across public lands, not reserved for public uses, is hereby granted.” This statute, repealed subject to valid existing rights, formed the basis for the counties’ lawsuit.
Judge Jenkins ruled that the counties could not require the BLM to base its management plan on R.S. 2477 claims until the counties, which have the burden of proof, establish the validity of those claims in federal court. Because the counties had failed to do so, the judge reasoned that the suit was premature. Moreover, Judge Jenkins ruled that the counties could not require the BLM to decide whether the counties’ R.S. 2477 claims were valid before the BLM completed its management plans. The court’s opinion also found that because there was no evidence that the BLM had denied county requests to develop water, the suit was not ripe.
According to Heidi McIntosh, “the court’s ruling reaffirms that counties may not undermine the protection of unique and scenic public lands like national monuments by simply uttering the “magical” phrase ‘R.S. 2477.’ And it should put some steel in the spine of the BLM, which has too often allowed the counties who do so to get away with it.”
Promising implication for other landscapes worthy of protection: The court’s basic holding that counties have to prove they have valid rights-of-way first, before bulldozing or staking road signs applies to all public lands and should bolster efforts to protect areas proposed for wilderness designation as well as National Parks and Wildlife Refuges, also the site of thousands of controversial R.S. 2477 claims throughout the West.
So, I say this is very, very cool news. I bet some people in Kane and Garfield counties don't think so, however! Having lived in Wayne County, which borders Garfield county, for years, I have an appreciation for much of the local sentiment. By saying I have an appreciation, I mean that I recognize both the pretty side and the ugly side of this sort of debate, as well as all shades of gray in-between. I've ridden on ATVs myself (not much, and only on real roads!) and I understand both the fun and the necessity they are to some people. All this ruling is stating is that REAL roads need to be used for ATV use--not drainages, washes, almost disappeared two-tracks, etc. Not in protected monuments, at least.
You can bet, however, that the fight is not over. Tell some rural Americans that the law (i.e. their government, big and bad and not fully understanding) is "threatening" some of their "God-given rights," and you've got a sneaky battle on for years! Trust me on this one. I mean, not many rural law enforcement officers always, every single time, enforce the law on their own relatives and friends and fellow church-goers. Ooh, part of me loves it. Think of all the writing opportunities this provides me now...more fodder for my pontification on such subjects.
People. What would we do without them? :)
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