It sounds innocuous enough. Revised Statute 2477, enacted as part of the 1866 Mining Law, simply provides that “[t]he right of way for the construction of highways across public lands, not reserved for public uses, is hereby granted.” Now, the State of Utah and its counties are trying to wield this simple phrase as a sword to invalidate millions of acres of proposed wilderness.
Congress repealed RS 2477 when it passed the Federal Land Policy and Management Act in 1976, but any claims deemed valid in 1976 may remain valid. Thirty-six years after RS 2477’s repeal, in 2012, the State of Utah filed more than 25 lawsuits in federal district court in an attempt to gain rights to approximately 14,000 “highways” totaling 35,965 miles.
The claims cross a myriad of federal lands, including BLM, National Park Service, U.S. Forest Service, and U.S. Fish and Wildlife Service-managed lands, as well as private and state lands. The lawsuits assert claims within some of the state’s wildest places including more than 2,068 miles of routes within the Grand Staircase-Escalante National Monument, 1,410 miles within the newly-designated Bears Ears National Monument, 152 miles within national parks, and 4,660 miles within proposed wilderness areas.
And let’s be clear: the overwhelming majority of these routes are not “roads” that lead to schools, stores, or towns. Rather, they are wash bottoms, cowpaths, and two-tracks in the desert, which the State and counties seek to bulldoze and widen up to sixty-six feet—about as wide as ten passenger cars.
If the courts accept Utah’s argument that these RS 2477 claims are actually “highways” under this antiquated law, it would nullify or diminish longstanding protection for national parks, national monuments, wilderness areas and other scenic landscapes. And it would slam the door on future protection of these remarkable public lands.
What’s the real motive behind this massive litigation? It is part of Gov. Herbert’s ongoing effort to seize federal land from the American public — in essence, to block the protection of these magnificent public lands and turn them over to extractive industries, off-road vehicles and developers.
SUWA is defending against the State and counties’ RS 2477 claims on a number of fronts. We’ve intervened in the statewide litigation, which allows SUWA attorneys to defend against the thousands of claims that threaten proposed wilderness and other wild lands. The State and counties are in the process of taking hundreds of “preservation depositions”—costly and tardy attempts to collect witness testimony they hope will support their claims. Additionally, the federal judges overseeing the cases have ordered a “bellwether” trial of a small subset of routes to resolve some of the many unresolved legal questions surrounding RS 2477. SUWA attorneys have been traveling across the state to attend these depositions, and will have a seat in the courtroom to defend claims and build good law at trial.
We’ve also brought our own action in state court, which could end the State and counties’ stale, anti-wilderness claims in short order. In 2014, SUWA joined wilderness advocate Michael Abdo to file a lawsuit challenging the legality of the state of Utah’s costly anti-wilderness RS 2477 litigation. Our argument is simple: Utah law—specifically Utah Code § 78B-2-201—prohibits the state from filing any quiet title actions more than seven years after the state’s right or title to the property accrued. Any right or title to an RS 2477 right-of-way necessarily accrued in 1976, when Congress repealed RS 2477. Accordingly, the state and counties had until 1983 to bring suit; their statewide RS 2477 cases, filed in 2012, missed the statutory cutoff by nearly thirty years.
We brought our case, captioned Michael Abdo v. Sean D. Reyes, with one goal in mind—to have Utah courts hold the state and counties accountable to Utah law. But the case quickly took an unexpected turn. Three federal judges overseeing the state and counties’ R.S. 2477 cases formally asked the Utah Supreme Court to interpret how Utah Code § 78B-2-201 operates. By asking (or, in legalese, “certifying”) their question to the Utah Supreme Court, the three federal judges have essentially fast-tracked our state law case to the state’s highest court. And that could mean a quick end to the state’s long-expired lawsuits. The judges’ certification order recognizes that “if SUWA’s assertion is correct”—that the State and counties’ claims had long expired—“then the R.S. 2477 Road Cases pending before this court would be barred.”
Collectively, the State and counties’ RS 2477 cases represents one of, if not the, largest lawsuit ever brought by the State of Utah. And the cases pose one of the greatest threats to wilderness in Utah. SUWA’s ability to defend against these thousands of claims would not be possible without an all-star team of pro-bono and “low-bono” attorneys from a number of elite law firms—Manning Curtis Bradshaw & Bednar, Kirkland & Ellis, Cooley LLP, Jenner & Block, and Strindberg & Scholnick.