County in Utah wins title to R.S. 2477 roads

By Christian Probasco, 1-13-11

A significant victory on road ownership for a southern Utah county could establish a precedent that could alter the way wilderness is designated in the West.

The recognition of Kane County’s title to the historic “Skutumpah Road” in a district court case by Judge Clark Waddoups, and subsequent recognition of its title to four more routes, has given representatives of Kane County hope they may finally get a fair hearing on the issue of road ownership, even from employees of the federal government which is fighting them on the issue.

Michael Swenson, executive director of the pro-access group Utah Shared Access Alliance (USA-All), which supported Kane County’s suit, says, “Judge Waddoups rendered a fair and reasonable verdict. We believe he applied the law as it was intended.”

Since the Aug. 30 victory on the Skutumpah Road and later favorable verdicts, Kane County has sued for quiet title to 49 more roads.

R.S. 2477 Highways

Kane County’s arguments for road ownership are based on R.S. 2477, a civil war-era statute that was repealed under the Federal Land Policy and Management Act of 1976 (FLPMA). R.S. 2477 reads:

“The right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted.”

During the period the statute was passed, “highways” meant practically any line in the dirt developed by even occasional foot, horse, wagon or livestock travel. It could even mean railroad lines, rivers and canals. The grants were self-enacting, meaning they didn’t have to be recorded to be legally valid.

While FLPMA overrode R.S. 2477, it was supposed to “grandfather” in all highways created prior to the act. However, in 1997, Interior Secretary Bruce Babbitt prohibited interior agencies from recognizing such rights-of-way.

The State of Utah responded to Babbitt’s policy of not recognizing any roads by establishing a fund to litigate its claims in court. Utah’s Public Lands Policy Office has spent millions of dollars on its claims without winning recognition for one road by itself, according to Habbeshaw, though it was a party in the latest case on Kane’s five roads. 

In 2003, Utah also began its own inventory of the thousands of highways that meet the state’s definition of a “road,” i.e. 10 years of continuous use before the enactment of FLPMA in 1976.

R.S. 2477 routes are key to the national debate on wilderness. According to the Wilderness Act of 1964, to be considered for wilderness status, a region must be at least 5,000 acres in size and must not contain any “permanent road.”

Congress intended the act to apply to environments with a “primeval” character “with the imprint of man’s work substantially unnoticeable.” The interior department added more potential wilderness to several inventories by classifying historic roads within their prospective boundaries as “ways” or “routes” and “cherry stemming” highways it couldn’t ignore, such as well-maintained class B county roads.

Cherry stemming involves running wilderness contours practically, and sometimes literally, to the edge of a road. The result is a boundary that looks like a “cherry stem” on a map. Opponents of the practice say it violates the intent of the Wilderness Act and intertwines wilderness with potentially busy, and noisy, roadways.

SUWA: Protector and Promulgator of Utah Wilderness

The list has been denounced since its inception by the non-profit environmental group Southern Utah Wilderness Association (SUWA), based in Salt Lake City and Washington D.C.

SUWA has been the most effective environmental organization at blocking mining, logging, motorized recreation and local infrastructure development throughout the state. It has also consistently pushed the BLM, which manages 42 percent of the land in Utah, to consider new lands for wilderness designation.

SUWA has had Democratic legislators sponsor its Redrock Wilderness Act for 21 years. The act would have set aside an additional 9.5 million acres of wilderness in Utah.

The state now has about 800,000 acres of wilderness. About 3.3 million additional acres –containing many historic R.S. 2477 highways— have been set aside as “wilderness study areas,” (WSAs) and managed as if they were wilderness. If the Redrock Wilderness Act passed, approximately 19 percent of the state would be off-limits to motorized travel, logging, or mineral development.

As with the establishment of previous wilderness areas in Utah, ranchers who chose to continue running livestock on wilderness lands would face tightened restrictions by the Interior Department, and would be under close scrutiny. Many would simply be run out of business.

SUWA claims that many of the highways on the state’s list are “illegitimate all-terrain vehicle tracks, remnants of faint trails…abandoned by prospectors during old mining booms or by ranchers seeking access to range improvements.”

It also claims that “Few if any of the routes have been regularly maintained for public use.”

SUWA’s opponents such as USA-All and Kane County have argued that SUWA’s, and the BLM’s claims of disuse are a self-fulfilling prophecy. Many of the routes have fallen into disuse because the BLM has erected “closed” signs on them, hoping to keep vehicles out.

Past battles

Kane, Garfield and San Juan counties were sued by the federal government in 1993 for blading road cuts on Skutumpah Road and other historic routes.

Kane County appealed the 2008 ruling by Federal Judge Tena Campbell that it did not have the authority to replace “closed” signs installed by the BLM on routes through the Grand Staircase Escalante National Monument (GSENM) with their own route signs in 2003. Campbell, the Wilderness Society, and SUWA, argued that the county had not proven its ownership of the roads.

Campbell’s verdict reversed a 2005 Tenth Circuit Court decision which found it was unnecessary for counties to apply title to their own roads and illegal for the BLM to rescind a road’s R.S. 2477 status.

Campbell, who was appointed by President Bill Clinton, was not popular in conservative Kane County even before it was discovered she had broken the Judicial Code of Conduct to donate money to President Obama’s campaign (Waddoups has been involved in possible conflicts-of-interest, too).

In a 2001 ruling, she found that the “construction” clause of R.S. 2477 referred to mechanical construction—a definition that would have been at odds with the 1866 statute’s intent to open the West to mining and settlement and with the era’s technology. 

Without a recognized title to the road, Kane County decided to stop maintaining it. According to Mitch Snow, the BLM’s spokesman in Utah, however, they misread the verdict.

“The BLM has repeatedly explained to Kane County that it does not agree with the county’s assertion that the county was ‘stripped’ of its jurisdiction over the roads,” Snow says. “BLM offered Kane County solutions to the road jurisdiction issues that are successfully used in other counties across the state and throughout the West.”

Habbeshaw says Snow and the BLM are proffering “the Babbitt paradigm,” whereby the feds would control the roads and make policy for them while the counties would have to maintain them.

Habbeshaw says many Utah counties don’t care for the model or its implications. “Traditionally, the BLM and the counties take care of their own roads,” he says. “Either (R.S. 2477 highways) are county roads or they belong to the feds. We’re not partners.”

Counties can file for rights-of-way on their roads under “Title V” of FLPMA. Title V roads are subject to environmental review and may be closed at any time by the controlling federal agency.

The county was granted an “en banc” (full court) review of Campbell’s 2008 ruling. They presented their case in May but the court has yet to make a decision.

“We don’t know how long it will take,” Welch says.

Winning R.S. 2477 roads

Babbitt’s policy of not recognizing R.S. 2477 roads remained in place until the federal government was forced to recognize the county’s right-of-way on 26 miles of Skutumpah Road.

According to a Kane County press release, Waddoups found that previous rulings had placed the county in a “catch-22” with regard to maintenance.

“For the last two years in court, Interior denied that Kane County had any right to the Skutumpah Road,” said the release. “But it separately informed the public that Kane County should maintain it.”

Later, Kane County was granted quiet title to Sand Dunes, Hancock, Mill Creek and Bald Knoll Roads.

“We were asking for a summary judgment. Then we had some bad weather and flooding which damaged the roads. Shawn (Welch) asked the judge to expedite the case. The feds had to put together briefs and argue their side.”

Habbeshaw disputes the Salt Lake Tribune’s account of the federal losses, recorded in a Nov. 8 editorial :

“It is somewhat puzzling that Kane County would sue just months after the Interior Department agreed to cede control of five roads to the county without the county having to resort to legal action.”

Habbeshaw says, “The Tribune apparently missed or buried the fact that the five roads were deep in quiet title litigation when they were ceded. The feds were forced to let them go on the steps of the courthouse.”

Welch agrees. “The United States did not ‘cede control’ without legal action,” he says. “Kane County had to go to court to force the United States to acknowledge Kane County’s title.”

Habbeshaw and Welch were equally puzzled by this passage from the Tribune’s editorial:

“They (Kane County) want ownership of 49 roads on federal land, so, instead of making their case for each road, as federal courts have said is the proper way to meet the provisions of the law, Kane filed suit last week against the federal government in U.S. District Court in Salt Lake City.”

“They found that each road must be proven in court,” Welch says, “but that doesn’t mean a separate lawsuit for each road.”

Welch and Habbeshaw will still have to fight for sections of Mill Creek and Skutumpah Road that the BLM claims were realigned while Kane County was maintaining them. Snow says the court is scheduled to hear the county’s case in January.

Reaction from SUWA, et al.

The recognitions are the first major setback for environmental groups and their supporters in Utah’s media.

New West has not received answers to any of the e-mail’s it sent to Heidi McIntosh, SUWA’s associate director (Blue Ribbon Coalition Public Lands Policy Director Brian Hawthorne also refused to comment while judges are deliberating on Kane County’s 49-road case, except to note that Kane’s victory on the five roads represented a ‘sea change’).

McIntosh did claim in a Sept. 17 blog, “…way back in 2000, Secretary of Interior Bruce Babbitt determined that Skutumpah, a graded long-standing road, met the R.S. 2477 requirements…We looked at the history of the road and agreed…”

According to Welch, however, “SUWA attempted to intervene in the case Kane County v. United States, 2:08-cv-0315 and its proposed answer denied that Kane County owns the Skutumpah Road. After intervention was denied, SUWA appealed to the Tenth Circuit (court) where it again argued that Kane County does not own the Skutumpah Road.”

Swenson agrees. “SUWA has opposed federal recognition for Kane County’s quiet title to all its R.S. 2477 roads,” he says.

The literature on SUWA’s website describes R.S. 2477 as a “loophole,” a “ruse” and a “defunct law” that Kane County and other local governments throughout the country are using to “claim title to federal land.” SUWA’s position sheet on R.S. 2477 characterizes highways belonging to Utah counties as “bogus road claims,” making no distinction between “cow paths and stream beds” and historic routes like Skutumpah, that McIntosh admits belongs to Kane County.

In 2003, SUWA supported an amendment by Rep. Mark Udall (D-Colo.) to the House Interior Appropriations Bill which prohibited the Interior Department from processing any R.S. 2477 road claims.

Next steps

The current batch of roads that Kane County is fighting for include the southern half of Hole-in-the-Rock Road, a route to a niche in a cliff traversed by pioneers in the late 19th century. Almost as symbolically significant to many residents of Kane County, and more important in terms of travel is the Paria Road.

Paria Road follows the bed of the Paria “River” (actually a trickle most of the year) from the ghost town of Paria, a few tens of miles north of the Arizona border, to Cannonville. At times, it linked several ranches within the Paria Canyon. It is within the boundaries of the GSENM and was “closed” by the BLM, which manages the monument, in 2010. SUWA supported the closure.

Prior to the closure, Paria Road had been in continuous use by locals for at least 125 years. Prior to the settler’s arrival, the corridor was used by Indians.

The only difference between Paria Road and Skutumpah Road are that the Paria Road follows the course of an intermittent stream through a gorge, while Skutumpah crosses over gorges.

In May, about 300 ATV riders drove up the Paria route to protest the federal government’s actions, which many of them believe were illegal. SUWA characterized the protest as illegal .

The road will remain in limbo until the courts decide whether historic records of its use and eyewitness testimony are enough to validate Kane County’s claim to it. Meanwhile, signs of the road will fade and old-timers who remember just how much the vital route was used will die of old age.

Post-script: About the same time I was posting this article, SUWA and the Wilderness Society were denied standing in Kane County’s 10th Circuit Court appeal of the Judge Tena Campbell’s 2008 ruling because the groups did not have property rights to the roads in question. Here’s the story.

Full Disclosure: Christian “I just call them like I see them” Probasco enjoys hiking, biking in southern Utah, and exploring historic roads in his CJ-5 Heep. He tries not to drive over or step on cryptobiotic soil, Kanab Ambersnails (Oxyloma kanabense) or Kodachrome bladderpods (Lesquerella tumulosa).

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