© Environment News Service (ENS) 2001
June 27, 2001
By Cat Lazaroff

SALT LAKE CITY, Utah, June 27, 2001 (ENS) - In a landmark decision, a federal judge has sided with conservationists who argued that Utah counties violated federal law when they used heavy equipment to grade abandoned jeep trails and other primitive routes in the Grand Staircase - Escalante National Monument and other federal lands.

The decision in the case, Southern Utah Wilderness Alliance v. Bureau of Land Management, was released Monday. The ruling is expected to have sweeping effects on federal lands throughout the West.

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. An 1866 federal law, which granted right of ways across certain federal lands to encourage development of the western territories, was at the heart of the counties' contention that they were authorized to maintain the right of ways.

That law, designated R.S. 2477, was repealed in 1976, but Congress allowed existing rights to be maintained. Under R.S. 2477, "The right of way for the construction of highways, not reserved for public uses, is hereby granted."

The Utah counties argued that faint tracks, stream bottoms and cow paths qualified as R.S. 2477 rights of way, and that nearly any public use met the requirement for "construction" activities. While most of the routes disappear into the desert with no apparent destination, according to environmental groups who contested the counties, the counties argued that they were highways.

A U.S. District Court judge in Utah rejected these arguments, holding that:

"construction" requires actual physical labor;

the route must "connect the public with identifiable destinations;" and

the federal government's setting aside of public lands for coal exploration in 1910 rendered them ineligible for R.S. 2477 claims.

"This decision will influence the future of millions of acres all over the West," said Robert Wiygul, an Earthjustice attorney who is litigating R.S. 2477 claims in several states. "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."

In the last decade, R.S. 2477 had become the tool of choice for individuals and groups seeking to disqualify lands for wilderness designation or other protections. 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 could have hamstrung reasonable management of the public lands for wildlife protection, wilderness, recreational opportunities and other values.

Utah counties and off road vehicle groups have also used the law in attempts to block closure of off road vehicle routes that have damaged broad swaths of desert landscapes proposed for wilderness. Off road vehicle use has skyrocketed in Utah, creating cross country trails that have damaged the land and interfered with wildlife and non-motorized use.

The counties maintained that many of these routes were R.S. 2477 routes that could not be closed or regulated by the federal government. Utah Governor Mike Leavitt of Utah has come under fire from conservationists in recent months for engaging in closed door discussions seeking to settle thousands of R.S. 2477 claims throughout the state.

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 U.S. 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 (ORV) 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.

In Utah, the law was used to open a route known as Salt Creek in Canyonlands National Park; the route had been closed due to environmental impacts of jeep use including water pollution and degraded wildlife habitat.

As of this week, the court has sharply limited the circumstances under which the R.S. 2477 argument may be used.

"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, the Southern Utah Wilderness Alliance's conservation director and co-counsel in the litigation. Error: Unable to read footer file.