Although the majority of the American public doesn't realize it, an R.S. 2477 right-of-way is their only guaranteed access across public lands. All other access rights are at the discretion of politically appointed bureaucrats, who often live far away from the lands at issue. If you understand this, you understand the importance of continued vigilance in the defense of these road rights.
R.S. 2477 refers to a now-repealed portion of the 1866 Mining Act, which states "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." While the grant was repealed in 1976, rights-of-way previously created under the statute can effectively remain "grandfathered" in use and available to the public today. R.S. 2477 claims have engendered great passion and confusion throughout the West, where state and local governments, federal land managers, public access proponents, wilderness advocates and private property owners have regularly taken irreconcilable positions on the issue.
On Sept. 8, a three judge panel of the Tenth Circuit Court of Appeals issued a decision that could bolster the efforts of local governments and public access proponents to protect R.S. 2477 rights of way. The decision represents a huge victory for millions of Americans who value access to public lands.
The ruling came in an appeal from a U.S. District of Utah decision in SUWA v. Bureau of Land Management (D.C. NO. 2:96-CV-836-TC). The litigation began in 1996 when road crews employed by Utah's San Juan, Kane, and Garfield counties graded 16 roads located in southern Utah. The Southern Utah Wilderness Alliance (SUWA) and other anti-access groups filed suit against the three counties and the Bureau of Land Management (BLM). SUWA alleged that the counties had engaged in unlawful road construction activities and that the BLM had violated the law by not taking more aggressive action against the road maintenance. The BLM subsequently filed cross-claims against the counties, alleging their activities constituted trespass and degradation of federal property. The counties claim the road maintenance activities were lawful because the activities took place within valid R.S. 2477 rights-of-way.
The legislation wound its way through the U.S. District Court in Utah for years until 2001, when Judge Tina Campbell issued a ruling that basically adopted SUWA's line of legal reasoning. Judge Campbell thus granted SUWA and BLM's request, and ruled that the counties did not have R.S. 2477 rights of way on 15 of the 16 roads at issue and that the counties maintenance work violated the law and constituted trespass under federal regulations.
A three-judge panel of the Tenth Circuit reversed that ruling, finding that state law, not federal regulation, properly guides interpretation of the existence and scope of any R.S. 2477 roads. The case was remanded to the district court for new proceedings to address the validity of the counties' right-of-way claims, the scope of any such rights-of-way, and whether the maintenance actions constituted "trespass" on federal lands.
It will take some time to evaluate the impact of this important decision, but it is safe to call it a significant blow to SUWA's and BLM's attempt to invalidate county road claims. The Circuit Court instructed parties to focus on state law concepts in evaluating the counties' actions. SUWA and BLM had argued it was federal regulation that should decide. R.S. 2477 claims have always presented complex legal, factual and political challenges. This ruling will help clarify the rules of the game.
To multiple use advocates, this ruling was not unexpected. From the minute it was issued it was assumed that much, if not all, of the Campbell ruling would be overturned on appeal. But the ruling was made in 2001, and since then we've had to endure the anti-access crowd waving it in our face and working hard to represent Campbell's ruling as settled precedent.
County commissioners, state legislators, Governors and multiple use advocates across the West have had their resolve and patience tested. Indeed, using Campbell's ruling, many county commissioners have been courted by the federal agencies to take actions that would diminish public rights of way. County commissioners were threatened with the prospect of Campbell's ruling becoming settled law, and that was used as a reason to quit fighting for R.S. 2477 rights.
To the anti-access groups this fight is a key step in their efforts to eliminate public access to public lands. Wealthy foundations are funding this effort, and their lobbyist's have convinced the highest levels of the federal agencies to support it. The fight has put pro-access groups in the situation of defending principles that should be settled law, and fighting the federal agencies whose job it is to support and defend that law.
The Blue Ribbon Coalition wants to express its sincere appreciation to our partners in Utah who kept the pressure on local and state governments to vigorously defend these access rights. The lawsuit would not have been supported if politicians didn't realize their constituents want them to defend our road rights.
Sometimes it's necessary to remind them, and now may be a great opportunity to do that by placing a phone call to your county commissioner and telling them "thanks for supporting the 2477 legal battle!"
Brian Hawthorne is Public Lands Director for The BlueRibbon Coalition, a national recreation group that champions responsible use of public and private lands based in Pocatello, Idaho. Hawthorne formally served as Executive Director of the Utah Shared Access Alliance, Utah's largest public lands access advocacy group.