Victories that hover just out of reach can be the sweetest of all when we finally achieve them. This is that sort of story.

We’ve written before about our state court lawsuit challenging the legality of Utah’s claim to tens of thousands of  RS 2477 rights-of-way and the circuitous path that case has taken.  But the story is complicated, so let’s recap.

In 2011 and 2012, the State of Utah and most of its counties filed over 20 lawsuits claiming title to over 12,000 “highways” under RS 2477, a repealed Civil War-era statute.  These claims—many to unmaintained two-tracks, trails, and wash bottoms—would allow the state and counties to bulldoze 66-foot-wide roadways into nearly every wilderness-eligible landscape in Utah.  That, of course, is the purpose of the claims.  They have nothing to do with transportation, and everything to do with wilderness disqualification.

SUWA intervened in federal court to defend against these claims.  Additionally, nearly two years ago, SUWA and Mike Abdo, a Tooele County taxpayer and wilderness advocate, opened a new front by filing suit in state court.  We alleged that state law prohibits the Utah Attorney General from filing suit more than three decades after Congress repealed RS 2477 in 1976.

The state tried to fold the state court case into the ponderous federal litigation, a move that was clearly intended to delay resolution of our state law claims and frustrate the ultimate goal of the our case—stopping the waste of taxpayer dollars on costly, illegal, and anti-wilderness RS 2477 lawsuits as quickly as possible.

Doughy Mountains Wilderness Inventory Area .
The Dugway Mountains are among the wilderness-quality landscapes threatened by the State of Utah and Tooele County’s RS 2477 claims.

We successfully blocked the state’s maneuvers and thought that the case was on its way back to the state courts.  Not quite.  The federal judge hearing the case, without any prompting from the parties, issued an injunction stopping the state court case from proceeding under an arcane and seldom-used federal law known as the “Anti-Injunction Act.”  Mike Abdo’s 9-year-old grandniece Maddison, present when the judge issued his decision from the bench, asked incredulously, “Can he do that?”

She got her answer in May: the Tenth Circuit Court of Appeals said “No.”  The circuit court concluded that the federal judge’s injunction violated federal law and the principle that state and federal courts should each be able to hear cases without interference from the other.

What does the decision mean?  Simply put, it means that we have the green light to pursue our state law claims in state courts which seek to end the RS 2477 litigation.  We are waiting for a ruling from the Utah Supreme Court in a related case which will clarify when we can actually proceed.

Our many thanks to Jess Krannich and his team at the law firm of Manning Curtis Bradshaw & Bednar for their excellent work before both the Tenth Circuit and the Utah Supreme Court.

—Joe Bushyhead

(From Redrock Wilderness newsletter, summer 2016 issue)