May was an extraordinarily busy month for the State of Utah. In the span of about two weeks, it filed 21 lawsuits—over 27,000 pages of written complaints (the document that initiates the suit), not including thousands of pages of exhibits. In all, the state and its county partners are seeking about 12,000 RS 2477 claims in national parks, two wilderness areas, two national wildlife refuges, proposed wilderness areas and wilderness study areas, and the Grand Staircase-Escalante National Monument. (Closer review of the original 25,000 claims led the state to drop about 5,000 of them and renumber the remainder.)
It looks like about 2,000 of these claims are the so-called Class B roads, a state classification for roads that counties have graded and maintained. The Burr Trail and Buckhorn Wash roads are examples of Class Bs. Most of these are not controversial and no one is trying to close them (although their scope can be an issue).
On the other hand, the remaining 10,000 routes are Class D routes that are not mechanically maintained by the counties. They are largely rough two-tracks and primitive trails that are, at best, infrequently used and lead to no identifiable destination.
How the federal court in Utah will handle this massive litigation is anyone’s guess; there’s virtually no precedent for using the courts to launch such a sweeping attack against federal public lands.
And it is sure to be an onerous and expensive slog through the courts. As the federal Tenth Circuit Court of Appeals emphasized in its landmark decision in SUWA v. BLM, “desultory” or occasional use is simply not enough to establish a valid RS 2477 right-of-way. The state and counties also have to prove that the statute of limitations has not yet run, that the land was not already reserved at the time of 10 years’ use, and that the route is a highway, serving the public need to reach some destination.
In their failed attempt to make such a case in Salt Creek in Canyonlands National Park, the state and San Juan County have already spent over $1 million. That is for one claim. Multiply that by 12,000 and it becomes clear what a huge financial boondoggle this is.
Imagine how many teachers the state could hire with that money?
We’re still tabulating the numbers and waiting for final mapping data from the state, but we do know based on our initial review that thousands of these claims slice through lands proposed for wilderness designation in America’s Red Rock Wilderness Act.
SUWA has expanded its legal capacity and will actively engage in the state’s use of the courts in its latest attack on our public lands.
—Heidi McIntosh
(From Redrock Wilderness newsletter, Summer 2012 issue)
[See more examples of state “road” claims on our website at suwa.org/StateClaims. To learn more about RS 2477 and the state’s litigation, go to suwa.org/rs2477.]
