The counties graded the routes in the Fall of 1996 when tempers flared over the creation of the national monument and the Department of Interior's decision to evaluate the area's wilderness potential.
The federal law at the heart of the dispute is R.S. 2477 which was enacted in 1866. It granted right of ways across certain federal lands to encourage development of the western territories.
Co-counsel Robert Wiygul, an Earthjustice attorney who is litigating R.S. 2477 claims in several states, said "This decision will influence the future of millions of acres all over the West. Federal wild lands stand a much better chance of remaining natural as a result of this ruling. It is a scholarly decision that other judges are likely to follow."
"This decision is enormously important for the future of some of America's favorite landscapes. No more will counties or anyone else be able to undermine the protection of national parks, wilderness areas, forests or wildlife refuges with the blunt edge of a bulldozer," said Heidi McIntosh, SUWA's conservation director and co-counsel in the litigation.
R.S. 2477 provides in full:
"The right of way for the construction of highways, not reserved for public uses, is hereby granted."
Congress repealed the law in 1976, but grandfathered existing rights. The counties argued that faint tracks, stream bottoms, and cow paths qualified as R.S. 2477 rights of way, and that random public use met the "construction" requirement. Further, while most of the routes disappear into the desert with no apparent destination, the counties argued that they were highways.
The Court rejected these arguments, holding that: 1) "construction" requires actual physical labor; 2) the route must "connect the public with identifiable destinations;" and 3) the federal government's setting aside of public lands for coal exploration in 1910 rendered them ineligible for R.S. 2477 claims.
The Significance of the Decision:
In the last decade, R.S. 2477 had become the tool of choice for self-styled "sagebrush rebels" seeking to disqualify lands for wilderness designation or other protections. Utah counties and off-road vehicle groups have also used it recently in attempts to block closure of off-road vehicle routes that have damaged broad swaths of desert landscapes proposed for wilderness, and to open a route known as Salt Creek in Canyonlands National Park that had been closed due to environmental impacts of jeep use including water pollution and degraded wildlife habitat.
In the southern portion of Utah, three counties had asserted at least 10,000 R.S. 2477 claims, amounting to a web of roads that would have hamstrung reasonable management of the public lands for wildlife protection, wilderness, recreational opportunities, and other values. Off-road vehicle use has increased dramatically in Utah, creating cross-country trails that have damaged the land and interfered with wildlife and non-motorized use. Yet the counties maintained that many of these routes were R.S. 2477 routes that could not be closed or regulated by the federal government.
Recently, Governor Leavitt of Utah came under fire by conservationists for engaging in closed door discussions seeking to settle thousands of R.S. 2477 claims throughout the state. This decision will set undisputed parameters for those discussions, and should cause the Department of Interior to re-think its strategy.
R.S. 2477 Used in Other States:
R.S. 2477 claims have become the tool of choice for numerous groups seeking motorized access to public lands. In Nevada, the Department of Interior recently agreed to allow a local county to use an R.S. 2477 claim over the objections of the Fish and Wildlife Service which argued that soil erosion from such use would harm the bull trout, an endangered species. In New Mexico, off-road vehicle groups have challenged the closure of the Robledo Mountains Wilderness Study Area to ORVs, citing R.S. 2477. In California, four wheel drive groups have claimed an R.S. 2477 right-of-way over Black Sands Beach, which was recently closed to vehicles by the BLM.
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