Last November the door closed, for good, on the State of Utah’s and San Juan County’s claims that the very streambed of Salt Creek Canyon in Canyonlands National Park is, in fact, a state highway under the Civil War-era legal loophole known as Revised Statute (RS) 2477.
A year ago, a three-judge panel of the Tenth Circuit Court of Appeals unanimously held that the state and county had failed to meet their burden to show that Salt Creek was a state highway. The state and county asked that panel of judges or, in the alternative, all of the judges sitting on the Tenth Circuit, to rehear the appeal. That request was denied. The state and county then had 90 days to file a petition for a writ of certiorari to ask the United States Supreme Court to review the Tenth Circuit’s decision. That petition was never filed and the case was closed.
The passing of that deadline marked the culmination of more than 16 years of litigation initially brought by SUWA to protect this remarkable canyon in a corner of the park. Today, Salt Creek Canyon remains a world-class backpacking destination and the only canyon in Canyonlands National Park with perennial water (besides the Green and Colorado rivers) to support multi-day trips.
We couldn’t have achieved this goal without the enthusiastic and reliable support of SUWA members! We thank you.
Tenth Circuit Issues Mixed RS 2477 Ruling, Reversing Many State and County Gains
Late last year, the Tenth Circuit reversed significant aspects of a 2013 ruling by a federal district court judge that granted title to 12 rights-of-way in Kane County in favor of the State of Utah and the county and determined the scope of those rights-of-way. The Tenth Circuit concluded that there was not a sufficient “dispute” over six of the routes to invoke the court’s jurisdiction because public, motorized use is currently permitted. This is significant because the majority of the state and counties’ RS 2477 claims are currently “open” to motorized use and the ruling may eventually result in the dismissal of these claims for lack of jurisdiction.
Unfortunately, the decision may also give the BLM an incentive to leave contested routes open to motorized use to avoid an RS 2477 fight. The Circuit Court also held that the lower court relied on improper factors when it determined the scope of three of the routes it did have jurisdiction over and remanded the matter for further consideration.
In addition, relying on the Salt Creek decision, the Circuit Court rejected our argument that the statute of limitations (that is, the time for the state and county to file suit) had run out on one claimed RS 2477 right-of-way in the Paria-Hackberry wilderness study area.
The state and county separately petitioned the three-judge panel to rehear this matter or, in the alternative, for the Circuit Court hear the matter en banc—that is, with all the judges of the court participating. Those petitions were summarily denied. The state and county have 90 days to file a petition for writ of certiorari with the United States Supreme Court.
(From Redrock Wilderness newsletter, spring 2015 issue)