The court case to prove seven roads have been used in the Swell from 1966-1976 is on again.
Apparently the Utah State Attorney General's Office has had a change of heart in regards to seven roads in Emery County. The court case is back on again. The interrogatory, formal or written question, was presented on Jan. 22 in federal court by the State Attorney General's Office.
The following is an excerpt from an earlier article appearing in the Progress on Dec. 15, 2009 which discussed the dismissal of the lawsuit. "During the Dec. 8 commission meeting a decision was made to dismiss without prejudice the lawsuit entitled the state of Utah vs. United States of America. This was done at the recommendation of the public lands director, Ray Petersen with the advice of the Utah Public Lands Policy Coordinating Office. Commissioner Gary Kofford said the county has been involved in a law suit in conjunction with the State Attorney General's Office. Emery County filed a legal motion on 12 roads in the San Rafael Swell trying to get RS-2477 title to these roads. It was determined to go to court on seven of these roads. It has gotten to the point by Dec. 18, 2009 the county had to give the courts all the information on the roads. Affidavits and statements had been gathered, but the AGs office viewed the case as weak. Some of the people who submitted statements have since passed away and will be unable to testify. The attorneys feel they have no case to present. So the county has decided to back down from the lawsuit. The wording allows the county to go back and resume the fight if additional information becomes available.
"Petersen said it is his recommendation as public lands director in conjunction with the county attorney David Blackwell to withdraw the lawsuit at this time. Blackwell said there are other alternatives available to pursue title for these roads and it would be best to hold off at this time than to go forward with a weak case. The question was raised of what would happen to the seven roads in question. Commissioner Kofford said the county will continue to push for them and to pursue other alternatives. They have been in close contact with USA-ALL and asked them to help with the documentation of these roads and affidavits to that affect. In order to be considered for RS-2477 status a road must be in existence and used for 10 years prior to 1976.
"Petersen said the county's case on the roads was considered weak. Petersen said the portions of the roads in question that are now open will remain open. The portions of the roads that are closed now will remain closed. Commissioner Jeff Horrocks said on some of the roads there are no living witnesses. "It is better to step back and make a better case than to go to court and lose." Petersen said with the evidence they have they cannot proceed. He encouraged anyone with history and information on these roads to come forward and help with documenting these roads. Roads include: Mexican Mountain, Sids Leap, Red Hole Draw, Junes Bottom, Copper Globe, Segers and Links Flat. Commissioner Kofford pointed out some of these roads are on the BLM system. Part of the Mexican Mountain road is open and part of the Sids Leap road is open. "If anyone can provide information on these roads, then please come forward," said Commissioner Kofford."
That's how the matter stood until last week when the Attorney General's office called public lands director Ray Petersen and told him the State is not going to dismiss the lawsuit, but rather go forward. Petersen said proof must be presented which documents the use of those seven roads from 1966-1976 just prior to the passing of the Federal Land Policy Management Act which became the rule setter from that time forward and is still in use today.
"The State Attorney General's Office has decided not to dismiss and will now proceed with the case," said Petersen. "We still need people to come forth with information. I haven't had many phone calls. The interrogatories will be presented on Friday by the AGs office. This is a sharing of information. Emery County and the State of Utah is listed as the plaintiff in the case and the defendant is the Bureau of Land Management and the United States Government. A response from the plaintiffs will be submitted at this initial court date on Jan. 22. "The seven roads in question were all closed at different times. Those within the Wilderness Study Areas were closed in 1983 when the WSAs came into affect. Junes Bottom, Red Hole Draw and Segers Hole and two small portions of Link Flat were not listed as open routes in the BLMs route designation plan for the Swell which came out in 2003. They have been closed from that time. The roads at the WSAs are barricaded. The other roads are marked with carsonite signs and at Link Flat it did have carsonite signs there that have since been removed. A portion of Segers Hole is State Institutional Trust (SITLA) property and no signs are there. There is a carsonite sign at Red Hole Draw marking it as a closed road. The gates at the WSAs allow access for search and rescue and administrative use. If you have any information or pictures pertaining to these roads, the sooner you can get it to us the better. We chose these seven roads to defend because we felt we had the most evidence and the best chance of proving they were in use f rom 1966 to 1976," said Petersen.
Emery County Attorney David Blackwell said, "We agreed with the dismissal of the lawsuit at the direction of the lawyers from the Attorney General's office. They came down to the commission meeting and met with myself and the commissioners and Ray Petersen. They advised the county it would be better to wait until more evidence could be attained. We are now confused. They have done an about face. Pressure may have been put on them. This decision to proceed didn't come from our commission. Our commission has just done what the Attorney General's office had advised."
Editors note: The Emery County Progress has tried to reach the lawyer from the Attorney General's Office Harry Suvall, but he has not returned our calls.