November 2010

Counties continue the fight against road closures

By Jim Mimiaga

Montezuma County hopes to join ranks with other conservative-leaning counties to fight federal land-management plans that sometimes permanently close historic roads crossing public lands.

San Juan, Teller and Moffat counties in Colorado, along with San Juan, Garfield and Kane counties in southern Utah, have re-opened closed roads, or have a process to identify and protect historic roads, under the auspices of an antiquated federal law known as RS 2477.

THE CLOSURE OF SOME ROADS IN THE BOGGY DRAW-GLADE AREA IN A NEW TRAVEL-MANAGEMENT PLAN PROPOSED BY THE SAN JUAN NATIONAL FOREST HAS PROMPTED MONTEZUMA AND DOLORES COUNTIES TO SEEK MORE POWER IN DEALING WITH THE FOREST SERVICE.The 1866 law is a left-over from early mining-camp laws. Advocates say it guarantees public rights-of-way traversing federal lands today.

But for a county to successfully prove that a historic road pre-dates a federally reserved national forest, thus exempting it from federal control under RS 2477, is relatively rare. And gathering the information can be a time-consuming, costly endeavor ultimately leading to the courts.

“This will be quite an undertaking for the county commission, staff time and the public’s time, so we need a strategy on how to start down this road,” said Dewayne Findley, the chair of a special advisory group set up by the Montezuma County commission to research the matter. But, he cautioned, with a limited budget, “if we have to go to court for a long battle, then we have lost.”

Moffat County has been researching historic roads to establish protection under RS 2477, “and it took them two years to gather research on 30 roads,” said James Dietrich, federal land coordinator for the county, during an Oct. 12 meeting. Public help in identifying the history of local roads is a key element of the process, he said.

In Silverton, for example, the public has a large role in the process. Affidavits were taken from old-timers, miners and loggers about roads they used and depended on, the minutes of county meetings were researched a hundred years back to determine if roads on public lands were ever maintained by the county, and newspaper archives were combed through to gather evidence of a road’s existence and importance to a community.

Old maps are also very valuable in determining a road’s history and use, something locals are already bringing in, Dietrich said.

“We’re scanning these older maps brought in by the public and adding layers to our maps, but it is a time-consuming process,” he said. “All the easy research has been exhausted.”

The next step is to overlay roads decommissioned by the Forest Service in the Boggy- Glade and Mancos-Cortez travel plans onto a single map, he said, and then try to determine if any of them qualify as RS 2477.

When a road is decommissioned by the Forest Service, it is not just closed but removed entirely. The targeted route is bulldozed and recontoured with berms or into a draw to prevent vehicle access, and then revegetated.

According to a study by the county, for a road to qualify as protected under RS 2477, it must have been existence before 1905, the year the Forest Service was created. But others believe roads within the forest established before the 1976 Federal Land Management and Policy Act was passed also qualify.

“Only Congress has the authority to close these roads under FLMPA, and the Forest Service has ignored that,” asserted Dennis Atwater, an audience member at the publiclands commission meetings who has been critical of the San Juan National Forest’s lack of coordination with counties on local landuse issues. “Because the Forest Service plan crosses county boundaries they are mandated to respect county land-use plans.”

Atwater continued that Montezuma County “has a flawed process” when it comes to keeping local roads from being closed on federal lands, citing controversial road closures on the BLM’s Canyons of the Ancients National Monument, west of Cortez.

RS 2477 has become a rallying cry for conservative counties across the west. When citizens become frustrated by road closures on national-forest or BLM land, counties often use the claim of RS 2477 standing to “undo” the closures.

Such efforts have not often been successful in the courts, however.

The Tenth Circuit Court of Appeals ruled against Kane County, Utah, and the Utah Association of Counties after Kane County passed an ordinance opening a large stretch of federal land to OHV use, took down 31 BLM signs and put up signs of their own. Kane County had claimed RS 2477 rights for those roads, but they had not been adjudicated. Environmental groups sued.

“Kane County cannot defend a preemption suit by simply alleging the existence of R.S. 2477 rights of way; it must prove those rights in a court of law. . .,” the Tenth Circuit wrote.

A re-hearing en banc for that case has been granted.

In another case, the Tenth Circuit ruled against Kane, Garfield and San Juan counties in Utah over those counties’ doing unapproved road construction on roads across public lands.

Montezuma County commission attorney Bob Slough warned the commissioners at their Oct. 18 meeting that any county that ignored such court orders could be found in contempt of court, leading to officials potentially being thrown in jail.

Members of the Montezuma County public- lands group noted that Dolores County has a more effective process in dealing with Forest Service land-use issues, holding more regular briefings with forest officials and participating in travel-management publiccomment protocols. For example, Dolores County is formally appealing the Boggy- Glade travel plan, whereas Montezuma County missed the deadline to voice concerns and thus lacks legal standing to appeal.

One approach being considered by Montezuma County is to incorporate a forest road map into the county land-use code. Specifically identifying public rights-of-way in BLM and Forest Service areas within the land-use code would presumably force a public hearing at the county level if any changes to that road were proposed.

“Once we establish that a road is a public right-of-way, then it cannot be closed without a public hearing in this room,” said Montezuma County Commissioner Gerald Koppenhafer during the Oct. 12 meeting. “We need to get some teeth in our land-use codes to force [the Forest Service] to coordinate with us and make their plan work with our land-use plan.”

Determining which road closures and/or policies to challenge within the Montezuma County section of the San Juan National Forest is critical, remarked Koppenhafer.

“We will have to pick and choose what issues will affect the county the most because the number of things going on in these forest plans is unreal,” he said. “It has been discouraging because in the past none of our appeals or concerns have been recognized but I think we have to continue to try. I realize these are public lands, but we are the ones who live here and are more impacted by these decisions.”

In some states, counties band together to fight federal land plans that close roads in their area, a strategy that would work well with Montezuma and Dolores counties, officials said during another meeting Oct. 26.

“The more we act in concert with each other, the more effective we can be,” said Ron Heaton, a member of a Dolores County advisory committee on federal land plans. “We’ve got a David-and-Goliath situation here.”

The Montezuma County public-lands committee considered closing its meetings to avoid negative publicity and discuss issues without the Forest Service being able to read about their strategies, but the idea was dropped. “I don’t like cutting the public out,” Koppenhafer said. “We’ve never had a closed session and I don’t intend to start.”

The committee’s next scheduled meeting is Tuesday, Nov. 9, at 6:30 p.m. upstairs in the county courthouse.