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Kane County wins 10th Circuit decision over roadless rule

By Amy Joi O'Donoghue | Posted - Jan 11th, 2011 @ 8:46pm

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DENVER — The 10th Circuit Court of Appeals ruled Tuesday that wilderness groups have no standing to challenge Kane County over its claims to so-called R.S. 2477 roads.

A 9-2 decision reverses an earlier ruling by the court, which agreed with a federal judge that the groups had a vested interest in the legal battle.

Instead, the ruling Tuesday said groups such as The Wilderness Society and the Southern Utah Wilderness Alliance lacked property rights in the dispute and therefore didn't have a dog in the fight.

This is a major deal. This is a big win for all the counties.

–Rep. Mike Noel

"The Wilderness Society has taken sides in what is essentially a property dispute between two landowners, only one of which is represented (Kane County). But The Wilderness Society lacks any property rights of its own," the ruling stated.

Rep. Mike Noel, R-Kanab, one of the chief players in the R.S. 2477 arena, was ecstatic at the ruling.

"This is a major deal," he said. "This is a big win for all the counties."

One of the primary litigators in the case was newly-seated Sen. Mike Lee, R-Utah, who was hired by the counties to challenge environmentalists over an issue that has dogged Utah for decades and policymakers throughout much of the rural West.

What is… R.S. 2477?
Revised Statute 2477 says, "the right-of-way for the construction of highways across public lands, not reserved for public uses, is hereby granted." It became law shortly after the Civil War when Congress enacted it as part of the Mining Act of 1866. In 1976 Congress repealed it when it passed the Federal Land Policy and Management Act. However, valid existing rights-of-way were grandfathered as long as they met the requirements of the statute. The interpretation of those requirements has led to decades of dispute over what is a legitimate highway. Some Utah counties argued passage of vehicles alone amount to construction of a highway, allowing them to mark dirt trails as highways.
Under a "pro-development" policy at the time, Congress granted rights of way to state and local entities during the Civil War era to promote the construction of highways over public lands not reserved for "public uses."

Although R.S. 2477 was repealed in a subsequent federal act in 1976, that legislation preserved any existing rights of way — according to the court's ruling — leading to conflict when national monument or wilderness designations declared historic uses off-limits.

In Kane County in 2003, the issue boiled over when local officials removed 31 Bureau of Land Management signs prohibiting off-highway-vehicle use in certain areas. They then constructed their own signs saying that OHV use was permitted.

Both The Wilderness Society and the Southern Utah Wilderness Alliance sued, saying such use of the land was in direct contradiction to federal land management plans.

Environmentalists contended they were asserting their "conservation interests" and were not trying to stand in for the federal government, which didn't seek to fight the counties because the signs were subsequently removed. The issue was heard in federal court in Utah, where Judge Tena Campbell ruled that environmentalists had a stake in the fight.

Backed by the state and other rural counties, Kane County appealed to the 10th Circuit, which upheld the lower court's decision. However, they were able to pin their hopes on a scathing dissent by one of the three justices who heard the case. That justice wrote that to agree with the lower court's ruling was to turn the issue of property rights on its head.

In that reasoning, Justice Michael McConnell said allowing environmental groups a say in the matter would be akin to giving him the right to sue in defense of his neighbor's property rights in a fight with a competing claimant.

The counties, buoyed by McConnell, went on to request an "en banc" hearing, meaning the case and its legal implications would be heard again — this time before the full panel of judges.

In Thursday's ruling, the only two justices to issue a dissent were the original two who sat for the first hearing.

One of them wrote that "today's decision will work untold mischief."

The dissent went on to emphasize that Tuesday's decision "poses a real threat to the availability of relief for those injured by unconstitutional state action."


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