September 2011
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Costly claims: The fight over RS 2477 roads

By Gail Binkly

Part 2 of a two-part series. Last month, the series covered the long-running legal battle between San Juan County, Utah, and the National Park Service over ownership of the Salt Creek trail in Canyonlands National Park.

A DECOMMISSIONED FOREST SERVICE ROAD ON HAYCAMP MESA IN THE SAN JUAN NATIONAL FOREST.In 1866, the U.S. Congress passed the Lode Mining Act, a bill regulating mining on public lands. Section 8 stated, “And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

One hundred forty-five years later, that brief provision, known as RS (Revised Statutes) 2477, has become the basis of one of the biggest ongoing controversies in the West, spawning endless litigation and furious debate.

In the view of environmentalists, RS 2477 is “a nightmare for America’s wild public lands,” a description provided on the web site of the Southern Utah Wilderness Alliance, which has fought 2477 claims.

“People say, ‘Hey, there’s this law from the 19th Century – maybe we can use this to stop them from closing roads.’ So it gets dusted off any time the Forest Service does something to protect its lands,” Ted Zukoski, an attorney with the environmental group Earthjustice, told the Free Press.

“There are 400,000 miles of roads on Forest Service land. You can almost get to the moon and back on Forest Service roads but it’s not enough for some people.”

But advocates of motorized access see the historic statute as an unequivocal right that requires many old roads and trails across both public and private lands to be kept open.

There are countless thousands of RS 2477 claims and potential claims throughout the Intermountain West, including some 15,000 to 20,000 claims in Utah alone, many within Canyonlands, Bryce, and Zion national parks as well as in proposed wilderness areas.

A firestorm

In Montezuma County, Colo., no formal legal claims under 2477 have yet been pursued. But the statute emboldens constitutionalists and public-access advocates who see it as a basis for opposing road closures on local public lands.

In the view of Dennis Atwater, numerous routes on the San Juan National Forest qualify as RS 2477 roads. Atwater is a member of the Montezuma County Planning Commission as well as two advisory committees – one in Montezuma County and one in Dolores County – appointed to study issues involving federal lands for the county commissioners.

He is also a vocal critic of Forest Service policies and officials.

“They’re disingenuous and they’re not working in good faith,” he said. “They do not negotiate on anything. In all the meetings we’ve had, absolutely nothing has been negotiated. Every meeting you start at Ground Zero and every contentious issue is still out there. Nothing gets resolved.”

Locally, the contentious issues center around travel management on the forest. A firestorm erupted last year with the approval in 2010 of the travel-management plan for the Boggy-Glade forest area north and west of Dolores, with residents furious over proposed closures of some 62 miles of roads and the end of cross-country motorized travel, even for game retrieval.

In vain did the Forest Service point out that most of the roads were two-track dirt roads, user-created routes, and old logging roads, and that the ban on cross-country motorized travel is being implemented nationwide.

Locals said there should be flexibility for local circumstances and that the road closures were largely illegal because the routes were de facto RS 2477 routes.

The Boggy-Glade travel plan was eventually appealed and overturned for reasons unrelated to RS 2477 – in fact, because its road density was too high – and is currently in limbo. A new round of public comments were taken and the Dolores Public Lands Office is currently “taking all of those comments and trying to come up with another alternative that incorporates people’s concerns and comments into a decision we hope to have out later this fall,” according to Tom Rice, deputy district ranger with the Dolores Ranger District of the San Juan National Forest.

Confusion and controversy

Much of the confusion and controversy surrounding RS 2477 results from the statute’s very brevity. What constitutes a “highway”? “Construction”? “Public lands, not reserved for public uses”?

The statute was repealed by the Federal Land Policy and Management Act of 1976, meaning no new 2477 roads could be created, but FLPMA left intact existing 2477 routes.

The problem is deciding what those routes are.

According to Atwater and those of like mind, any road that pre-dates the passage of FLPMA might qualify.

“Our position is certainly there are some roads up there that should have been closed,” he said, referring to the Boggy- Glade area. “Some are old logging roads or go to a [grazing] lease. They required remediation at the end of the contract, and a lot of those were never done.

“Now we’re in a predicament where a lot of those existed on Oct. 1, 1976, and became a route. A two-track that fell into ‘right-of-way’ or ‘right of use’ under FLPMA – if you read the law it is very clear. FLPMA is very explicit about right-of-way and right of use.”

He said it is not necessary that a court first certify RS 2477 status. “They would like you to believe that, but the only time it has to be enforced through a court is if someone objects.”

Under FLPMA, he said, “only Congress can close RS 2477 roads. If a federal agency or its employees closes such a road it would be a violation of federal law.”

Statements like that led to talk of Montezuma County Sheriff Dennis Spruell possibly arresting Forest Service employees, something that has not come to pass so far.

At an Aug. 15 meeting of the local 9-12 Project/Tea Party in Cortez, Spruell briefly addressed the 2477 issue. “I think I have the backing legally to stop any encroachment on an RS 2477 road; however, I’m not going to take a case to court unless I can win,” he said.

But he said he is prepared to fight for search and rescue parties’ rights to travel closed roads. “If they [the Forest Service] try to tell us we can’t go somewhere you just watch and see what happens,” he said.

However, Rice told the Free Press that emergency use of closed roads is certainly allowed, even if a search and rescue group has to cut a lock. “The [travel-management] decision allows search and rescue operations to access the forest via any of these roads.” Off-road travel for fire control and medical emergencies is also permissible.

“So the assertion that we would be prohibiting search and rescues, firefighting efforts or emergency access – that is false,” Rice said.

Up to the courts

But to Atwater and others, the question isn’t whether the agency grants access on the roads, but whether the agency has control of them in the first place. To him, any publicly used roads across the forest pre-dating FLPMA should automatically have 2477 status.

But Atwater’s interpretation is not the prevailing view. Courts, attorneys and the Forest Service say an RS 2477 claim must be proven in court.

“The Forest Service is not in business to decide whether a road is an RS 2477 road,” said Rice. “That is the courts’ decision, and we would be bound by any court decision that a road is a 2477 road. It is the responsibility of the claimant, typically the county, to pursue that assertion by going to court.”

However, no claims have been brought before a court regarding the San Juan National Forest, he said. “I know there’s some interest by some members of the public who have talked to the Montezuma County commissioners about potential 2477 claims and we’ve even taken a look at maps.”

The commissioners have said if they feel they have a strong claim, they will follow up, Rice said.

However, there has been discussion of the agency voluntarily turning over some specific roads to the county or counties, such as the Dolores-Norwood Road and Red Arrow Mine Road (Forest Road 567). Another significant difference between the views of constitutionalists such as Atwater and the prevailing interpretations of RS 2477 is the date used in determining the validity of road claims.

Most courts have held that routes across national forests have to pre-date the creation of that forest, rather than the passage of FLPMA, to qualify as 2477s. That’s because, earlier in the nation’s history, land was considered unappropriated public land until it was “reserved” – for an Indian reservation, a military post, or a national forest. After that date, there would not be an automatic grant of right-of-way.

“Most of the Forest Service lands were designated by [Theodore] Roosevelt or in that era,” said Zukoski. “So the proof [that a route existed] is going to have to go back to the 19th Century in a lot of cases and it’s hard to find people or photos, so you’re relying on really old evidence. You have to hope the courthouse hasn’t burned down in the last 100 years.”

In Southwest Colorado, national-forest lands, including those now belonging to the San Juan National Forest, were reserved by Roosevelt in 1905.

The standard is different for BLM lands; in that case, 1976 is often considered the cut-off date.

Another key question is what standard is used to show that something is a public route. Because the statute is so vague, courts have turned to state standards for guidance; however, those can vary widely.

Colorado, for instance, has no specific time frame for showing “continuous use” of a route, while Utah does, Zukoski said.

“If you look at the Colorado cases, most involve uses of 15 to 20 years or more, but the state law itself does not require that,” he said. In Utah, though, a route must have been used for 10 years continuously.

Other arguments have arisen over the terms “highway” and “construction.” In general, state and county governments and off-road-vehicle activists believe those terms should be broadly interpreted, meaning an old road need only be, in extreme cases, a dirt track where someone moved a rock out of the way to constitute an RS 2477 road.

Environmentalists say the terms should be more strictly defined and point to cases where claimed routes go through extremely narrow slot canyons, along winding stream beds or up almost-impassable rocky slopes. “I’ve got a case in California where the claimants have an old map that shows a route around in the general area, but it doesn’t go where it goes now,” Zukoski said. “It goes up and down vertical cliffs.”

He said assembling evidence to convince a court that a route is an RS 2477 road is very difficult. “Locating evidence is the first major hurdle, and then you have to have a trial. You have to sue the federal government and that is in federal court, so you have to travel. All that costs money.”

Questioning costs

Cost is an issue that has been raised by others. A 2010 article in the Denver University Law Review that discussed the legal complexities of RS 2477 stated, “Growing evidence in the local media suggests that state and local governments, as well as their citizens, are growing weary of R.S. 2477 litigation. While counties continue to file and prosecute R.S. 2477 claims, the fact remains that an R.S. 2477 right-of-way claim can take years to resolve, all at the expense of the taxpayer.”

San Juan County, Utah, has spent at least $1 million battling for control of a Jeep route in Canyonlands National Park, according to commission chair Bruce Adams, who told the Free Press, “Once you’ve invested a million, you’d better fight for the result you want, hadn’t you?”

And Kane County, Utah, allegedly has spent that much fighting its own battle over some 60 roads going through Grand Staircase-Escalante National Monument. The head of the Taxpayers Association of Kane County, Sky Chaney, told High Country News that his examination of county budget spreadsheets indicated the county had spent at least $1 million and possibly much more if overtime and contract time for mapping were considered.

“You have to wonder, what aren’t they spending money on because of these other costs?” asked Zukoski. “Of course, Utah counties have money to spend on the claims because they have a state legislature that requires all the taxpayers in the state to pay for the litigation.”

More than a decade ago, the Utah Legislature created a Constitutional Defense Fund and, according to a review by the Utah Office of Legislative Auditor General, from 2000 to 2004 appropriated nearly $8 million from that fund to an RS 2477 rights-of-way account.

This year, the Utah Legislature passed HB 76, which establishes a federalism subcommittee of the Constitutional Defense Council to review federal laws applying to Utah, and encourages state officials to attack “unconstitutional” laws and mandates, providing up to $1.2 million a year for them to do so. The bill will provide cash to support lawsuits related to RS 2477 roads.

Yet despite the sizable amounts of money poured into the battle, Utah’s victories regarding road claims have been few. In May of this year, a U.S. district judge ruled that the Salt Creek road in Canyonlands did not qualify as an RS 2477 road. San Juan County has decided to appeal that ruling to the 10th Circuit Court of Appeals.

In the case of Kane County, there have been mixed results.

In August 2003, a county commissioner and the county sheriff removed 31 BLM closure signs from roads and trails in the Grand Staircase monument they considered to be county-owned 2477 roads. The county also passed an ordinance encourag ing off-road-vehicle use on closed areas in the monument and a wilderness area. In September 2009, a panel of the 10th Circuit Court of Appeals ruled that Kane County hadn’t established any road rights and that its actions violated the U.S. Constitution’s supremacy clause, which says that disputes between federal laws and state, county or local laws will be resolved in favor of the feds.

However, a few months later the court reviewed that decision in an en banc hearing (before all of the circuit’s judges) and ruled that the environmental groups that had filed the lawsuit had no standing, meaning the U.S. government would have to pursue the case. Subsequently, the Obama administration granted Kane County the rights to five of the least-controversial roads in question.

“The court did reverse that,” Zukoski said. “The court didn’t endorse anything Kane County had done but said we were the wrong people to bring that lawsuit, and if anybody could bring suit against Kane County for tearing down signs, passing an ordinance that opened closed roads and so on, it would have to be the United States.”

However, Zukoski said the case was not to actually determine an RS 2477 claim. “Kane County wasn’t trying to get the roads through 2477. They said that 2477 allowed them to manage any roads that they think are 2477.”

Right of access?

That’s the view espoused by Atwater. However, he said he is not necessarily fighting for local counties’ rights to maintain old routes, as many Utah counties are doing, just for the people’s right to continue to use them.

“Most of our folks that I’m dealing with that want to protect our rights agree that the forest has a wonderful way of mending itself,” he said. “Many, many of these old roads and trails that are in fact 2477 have trees growing up through them that are 8 and 10 inches in diameter and we don’t propose that anybody go disturb that, but we want the right to use it – without doing habitat damage or unreasonably disturbing wildlife.

“We don’t want the county to do a darn thing except to protect our rights to these roads and they can exist just as they do today. But we have a right of access. We want to use them like we have always used them.”

However, motorized use is not as damaging as some maintain, Atwater said. “Years ago, prior to the explosion of the ATV market, when we went berry-picking or hunting we would put chains on our four-wheelers and we did have a tad damage, but you could go back the next year and not find the same trail,” he said.

Today’s ATVs are much less damaging, with smaller tires, he said. “The uses we use them for – getting firewood, getting our deer and elk, berry-picking – are not doing resource damage.”

Forcing ATVs to stay on designated trails is merely concentrating the usage, he said. “Those trails in places show massive habitat damage because they’re shoving it into one area.”

Atwater admitted that desert habitat is more fragile than forest. “Yes, the areas vary and each has its own ecological differences, but the travel-management plan is a cookiecutter plan. One size fits all. It doesn’t matter if you’re in the grasslands in Missouri or the high mountains of Colorado. That’s ridiculous.”

Most motorized users are responsible, he said. “There are always going to be 2 to 5 percent of the people that screw things up but 95 percent of the population loves our forest and we’re going to be good stewards.”

Breaking an ankle

A particular bone of contention for Atwater and others is the way the Forest Service has been decommissioning the old roads – building large berms, laying logs across routes, ripping them up with bulldozers.

He spoke of the old Lost Canyon Stock Driveway, once the only road to Rico, which starts off Highway 184. “When Rico became a boom town, all the equipment for mining came up that road on 13-mule-team jerk lines,” he said. “All of this has been researched. It’s obviously an RS 2477 road.”

Today, Atwater admits, “you can’t even access part of the road where it goes down into Bear Creek,” but he takes issue with the Forest Service’s having torn up part of the route. “They have taken it a couple of miles and obliterated it where you can’t even walk on it. You’d break an ankle – it’s that bad.”

Rice agreed some of the work had been excessive. He said forest officials took a field trip recently with the Montezuma and Dolores County commissioners and representatives of motorized and non-motorized user groups to look at the types of road closures being used.

“The large berms, the ripping of roads – we agreed with them in many cases that we did not need to go to that degree and we could just put a couple of boulders in front of an old road and let it grass in on its own.

“That review of what we did up on Haycamp with those road closures, I think, was indicative of Forest Service and local governments and user groups working well together. I believe that was a positive step in the right direction.”

‘What is the point?’

Jimbo Buickerood, an organizer with the local environmental group San Juan Citizens Alliance, said he would like to see more dialogue and less animosity.

Buickerood said the road dispute has become more of a philosophical argument than a battle over something truly worthwhile. “In Montezuma County, one of the routes in discussion is the Lost Canyon Stock Driveway. It’s not even a road or a used trail any more. It’s an elk trail. What is the point? Is the point to prove philosophically that the county’s in control? Does the county want another road to maintain?

“I think after a series of non-wins, people will be saying, ‘Do we really want to continue this?’”

He called for a fair discussion about balancing the need to protect watersheds, wildlife and even cattle-grazing with the desire for access.

“I think the important thing is to have a community dialogue on what these lands need and how they support our community, and I think it’s much more than just public access to the roads.”

He added that cost is indeed a concern when taxpayer dollars are involved.

“What do people want to spend money on? Trying to keep open, and in good enough conditions, some low-value roads not used by many people or for many purposes? We can’t do it all. We need to make some choices here. How much of the federal budget do we want to put into maintaining thousands of miles of roads?

“I think the day of reckoning is going to come when citizens will ask counties, ‘What do you have to show for the hundreds of thousands of dollars that you have invested in this?’ ”

But Atwater said the roads in question are important for diverse uses and for now, the fight will continue. He said a nonprofit, 501(c)3 group has been formed called the Southwest Public Lands Coalition to represent forest-users of all stripes — the disabled, seniors, oil and gas companies, hikers, bikers and motorized users. “We are going to build a war chest in case we have to take the Forest Service to court. We will defend everybody’s use as much as our own,” he said.

For Montezuma County, the issue comes down to several things — having a good case, really wanting the road in question, and being able to afford the costs, according to commission chair Larrie Rule.

“If you claim an RS 2477 road, you’ve got to be able to prove it,” he said. “As commissioners we’ve got to look at the law., and we’ve got to listen to our attorney.

“Another question is, do we want to claim all these 2477 roads if they’re going to leave them open, because if we do, we could wind up taking care of them. That could be an expensive deal for us. We can’t spend money we don’t have.

“Now, if they’re going to close the roads, that’s a different story.”

But some roads, such as the Lost Canyon Stock Driveway, may not be worth a fight because a nearby road goes to about the same places, he said.

For now, Rule said, the county is waiting to see the revised travel plan for the Boggy- Glade area. “It’s not a dead issue, that’s for sure, but we are waiting to see what they are going to do.”


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