As regular Redrock Wilderness readers will know, there has been considerable activity these past few years in the long-running RS 2477 litigation brought by the State of Utah and many Utah counties. The right-of-way claims at issue pose one of the most significant threats to Utah wilderness, yet they rarely grab front page headlines. If the plaintiffs win, it will open the door for the state and counties to literally carve up the landscape with thousands of “improved’ and widened roads—even where none were discernable before.
Since the Trump administration took power, the state and counties have stepped up their efforts to win, either in court or by settlement (see sidebar on page 10). It is useful to recap, in what we hope are manageable bites, what it all means and how we got where we are today.”
What Are RS 2477 Rights-Of-Way?
The obscure statute reaches back to the Mining Act of 1866. We now know its 20 words as “Revised Statute 2477.” Its goal was to encourage settlement and development of the American West. Here it is in its totality: “[t]he right of way for the construction of highways across public lands, not reserved for public uses, is hereby granted.”
There is a lot to unpack in those few, deceptively straightforward words. We’ve included something of a glossary to help sort it out.
What Does that Mean? A Glossary of RS 2477 Terms
Sometimes, the plain words of a statute are little help in understanding what’s really going on, particularly when they figure in lawsuits. That is surely the case with RS 2477. Here are some key terms and what they mean today.
Right-of-way: This is the “right” to travel across a tract of land. The land owner can condition the right but not prohibit it. The right holder can maintain and in some circumstances even improve the route so it’s wider and in better shape than it was in 1976. Thus, what was a narrow dirt trail in 1976 might become a two-lane graveled road in 2020.
Construction: Establishing the existence of a right-of-way under RS 2477 requires that the route was built. That can mean work with picks, shovels and bulldozers. But it can also mean the mere passage of vehicles over time. According to previous court rulings, it is possible to “construct” an RS 2477 solely through vehicle travel. Note that it demands public use: uses such as access to private land, grazing, or post-cutting do not count.
Highway: That term has been interpreted to mean that the route should either lead to a destination or connect two places. Routes that start and end nowhere or lead only to private land or operations may not count.
Across public lands: The RS 2477 litigation focuses solely on claims across federal public lands or lands that were federal at the time an RS 2477 is alleged to have been constructed (even if the lands are now state or privately held).
Not reserved for public uses: Did Congress reserve or withdraw the underlying public lands for any period before 1976? For example, Congress withdrew the public lands that would become Canyonlands National Park in 1962. This means that no RS 2477 right-of-way could be established after 1962 and that a claim of construction by use would have to span the years from 1952 to 1962, at the latest.
Understanding the ancient statute and the current battle requires jumping ahead to explain the role of the Federal Land Policy and Management Act (FLPMA). The crucially important term “valid existing rights” does not appear in the old law but does in FLPMA. The Congress repealed RS 2477 via FLPMA in 1976 but preserved valid existing rights established before then. RS 2477 litigation revolves around establishing a factual record as to which of those claimed prior rights are valid, which not. The plaintiffs’ claims will largely rise and fall on just that question.
To complicate matters further, RS 2477 has been described as having created a free-standing offer by the United States. It required no formal paperwork for a claim on one end, no formal federal acceptance of a claim on the other. The validity of RS 2477 claims often can’t be researched in local or federal property records; they have to be proven in federal court . . . which leads us to the matter at hand.
The Largest Suite of Litigation Utah Ever Filed
The most expansive litigation Utah has ever brought was not against the tobacco industry or polluters that damage public health. That distinction goes to the decades’ long assault on wilderness through 14,000 RS 2477 claims totaling more than 35,000 miles (see map on page 8). The claims cross wilderness and wilderness study areas, lands proposed for wilderness in America’s Red Rock Wilderness Act, national monuments, and national parks and recreation areas.
Pushed by rural legislators, the state has dumped tens of millions of dollars into pursuing these cases. Today, it has more than a dozen attorneys and staff focusing almost exclusively on RS 2477. That doesn’t include the legion of private attorneys who represent Kane County and a handful of others in these cases, largely paid for by Utah taxpayers.
Because these cases present such a threat to our goal of durable protection for redrock wilderness, SUWA has assembled its own team. It includes attorneys from national and local firms, working pro bono or at much-reduced rates, along with SUWA’s in-house attorneys and other staff. Together, we have pushed the lawyers representing the United States to do a better job.
Fighting for A Seat at the Table
But we want the right to intervene as a full party in these cases and have fought hard for a seat at the table. The plaintiffs, and even the United States, have fought equally hard to keep us at arm’s length. After years of see-sawing, the Tenth Circuit Court of Appeals issued a key ruling in June 2019 in one of the state and Kane County’s RS 2477 cases saying that SUWA was entitled to intervene and participate as a full party. In March 2020 the circuit court declined to rehear the case—a sort of judicial assurance that it meant what it said in the first place. We’re using that decision to push for the same rights as all the other parties and also seeking to re-open past hearings from which we were boxed out.
Despite all the money they’ve thrown at this litigation, things haven’t been coming up all roses for the plaintiffs. In 2005 the state and San Juan County sued to establish a right-of-way in the streambed—yes, the streambed—of Salt Creek Canyon in Canyonlands National Park. The Tenth Circuit rejected the claim in 2014.
The state and Kane County brought another suit in 2008 involving 15 RS 2477 claims, each claim representing a specific route. That case ended in a divided ruling. The circuit court rejected several claims on procedural grounds and resolved a few in favor of the plaintiffs.
A Torrent of Lawsuits
Then the floodgates opened. From 2010 to 2012, the state and various counties filed more than 20 additional RS 2477 lawsuits in Utah federal district court. In an effort to streamline these cases the federal court instituted a so-called “bellwether process.” It specified that the court and parties would focus on only a handful of cases, in a staggered format, and then attempt to apply the lessons learned from those cases to the larger suite of litigation. The first bellwether case out of the chute would be another case originating in Kane County and focusing on a different set of 15 RS 2477 claims.
The bellwether process was originally supposed to be handled by a “special master” (an out-of-state federal magistrate) but it instead ended up before a Utah federal district judge who now oversees all the RS 2477 cases. After years of skirmishing and delays, the bellwether trial went ahead in February in a three-week bench trial. The state, county and United States called witnesses who offered testimony about the bellwether claims. Had the routes been used before 1976? By whom? For how long? For what purpose? The federal government called expert witnesses including a historian and an aerial photography specialist.
All of this dragged on for the full three weeks without SUWA being permitted to play any active role other than advising the United States behind the scenes and during breaks. The judge refused to allow us to cross examine witnesses, to object to the introduction of evidence by the plaintiffs, or to call our own expert witnesses to testify.
What happened? As noted above, SUWA has fought to participate in the RS 2477 cases as a full party for years and finally won the right to do so last summer. Or so we thought. In response to the Tenth Circuit’s ruling that SUWA was entitled to intervene in a related RS 2477 case, the judge overseeing these cases restricted SUWA’s rights to participate more than ever. He announced that he would not follow the Tenth Circuit’s ruling until that court decided whether to rehear its ruling as requested by the plaintiffs and the United States.
Something is Grossly Out of Whack
To be clear, that’s not the way things are supposed to work. We petitioned the Tenth Circuit to step in and order the district judge to follow the law. The circuit court agreed that there were problems but declined to right the wrong. The trial went ahead.
(A few days after the trial ended, the Tenth Circuit finally denied the plaintiffs’ request that it rehear its earlier decision that SUWA could participate fully. We have already filed a new motion to intervene as a full party in the bellwether case and intend to move for a new trial, citing the prejudice SUWA suffered by being forced to sit on the sidelines.)
The post-trial briefing, summarizing the trial testimony and testimony received through depositions, as well as all the documentary evidence as to whether the plaintiffs met their burden of proof for each route, continues and will run into early fall. Then the court will hear closing arguments and issue a written decision sometime down the line. If we succeed in our motion for a new trial, things would go back to step one or some intermediate step along the way.
SUWA Brings Related Case to Utah Supreme Court
Just as the bellwether process began to pick up steam in 2015, three of the federal judges involved in the RS 2477 cases decided that a state law issue SUWA raised—whether the plaintiffs’ lawsuits had all been filed too late and should thus be dismissed—needed to first be resolved by the Utah Supreme Court.
After over two years and a highly unusual two rounds of briefing and oral argument, we lost in a deeply divided 3-2 opinion. The majority agreed with us that a straightforward reading of the state law at issue meant that the state’s cases had been filed too late, but then reached the remarkable conclusion that surely such an outcome was not what a reasonable Utah legislator from the early 1900s would have intended. The matter was sent back to federal court.
What’s Really Going On Here?
To hear the plaintiffs’ version of things, the litigation is about keeping essential roads open, making sure kids get to school and products get to market. Let’s get real. Neither any federal agency nor SUWA is suggesting that a maintained, paved, chip-sealed or graveled road should be closed. We may argue whether those are legitimate RS 2477 claims and who gets to say whether they are widened or improved, but the fact is those routes will almost certainly remain open.
The overwhelming majority of the claims, however, are for something altogether different: unmaintained dirt two-tracks, many invisible, and even stream bottoms. You won’t find school buses on these dirt paths, but you’ll see people roaring about on their off-road vehicles or ranchers driving around in the desert looking for their cows. This isn’t about a transportation network. It’s about control over federal public lands, dressed up under the slogan of “maintaining our western lifestyle.” To many Utah legislators and county commissioners that motto means the right to drive wherever you want, whenever you want.
This is also a desperate fight over wilderness. Long ago, though well after Congress repealed RS 2477, the state and its counties came to realize that they had, in this ancient and arcane law, a weapon. Wielded successfully, it would allow them to riddle proposed wilderness areas with roads and thereby block wilderness designations. We’ve been onto that gambit for a while now. And fortunately, despite efforts to keep us out of these cases, we’ve forced our way in. With that entry, we can better defend our members’ interests and protect Utah’s remarkable redrock wilderness for current and future generations.
We’ve got a long fight ahead of us and are deeply grateful for your support.
(From Redrock Wilderness newsletter, spring 2020 issue)