A split ruling this week by the 10th U.S. Circuit Court of Appeals concerning off-road vehicle access to the Grand Staircase-Escalante National Monument, the Glen Canyon National Recreation Area, and other public lands in southern Utah could also affect ORV issues on national park lands throughout the region.
In the case at hand, the court's majority -- Judge Carlos Lucero and Judge William J. Holloway -- held that Kane County, Utah, officials could not sign as open for ORV travel routes referred to as R.S. 2477 rights-of-way until a clear adjudication of those access rights is made. More to the point, they held that the county's actions violated the supremacy clause of the U.S. Constitution. That clause provides that federal law supersedes local or state laws involving federal issues where the two conflict.
R.S. 2477 is a Civil War-era statute initially created to further western expansion. In 1976 Congress repealed the law, but not before providing that any valid R.S. 2477 route existing at the time of the repeal could continue in use. Since then, there have been many debates and many lawsuits over what constituted a valid R.S. 2477 route. These days, some states, counties, and off-road groups have claimed that washes, two-tracks, even hiking trails are "highways" that they are entitled to open to motorized travel.
Back in 2006, then-Interior Secretary Gale Norton, rather than searching for a national standard that could be applied to determine R.S. 2477 rights, issued a "secretarial order" that gave federal land managers throughout the West the power to decide which R.S. 2477 routes can be regularly maintained or even improved. At the time The Wilderness Society and other groups, which recognize that some R.S. 2477 claims are valid, worried that Secretary Norton's action could "recognize unfounded highway claims, such as those on cattle paths, streambeds, and little-used or long-abandoned Jeep tracks that have little connection to legitimate transportation needs."
A good example of the nightmare this issue creates for land-management agency is Salt Creek in Canyonlands National Park. Where many see only an intermittent stream, others see a four-wheel-drive route. In fact, back in 2000 the state of Utah submitted to the Interior Department a map highlighting 100,000 miles of R.S. 2477 routes that it thought could be validated as bona fide roads. Among those 100,000 miles was every hiking trail in Zion National Park and routes through every designated wilderness area in the state.
In this week's ruling, attached below, the 10th Circuit said it was clear that the routes Kane County had signed as open were, indeed, not open.
...we must assume for standing purposes that the roads in question were closed under federal authority. By passing the Ordinance and replacing federal signs with county signs that permit OHV use, Kane County opened the disputed roads to OHV travel. We are satisfied that there is a “substantial likelihood” that these actions increased—and if left uncorrected, will increase—OHV usage on the roads, which in turn harms the recreational and other interests of the environmental plaintiffs’ members.
While both the court's majority and Judge Michael W. McConnell in his dissent agreed that there are thousands of miles of R.S. 2477 roads in the West that are rightfully open to motorized travel, the majority held that those in question in this lawsuit remain ambiguous as to authorized travel and so should remain closed to such.
In this case, Kane County’s power to regulate OHV use within Glen Canyon NRA turns on the existence of valid R.S. 2477 rights. As discussed above ... Kane County may not unilaterally manage alleged R.S. 2477 routes until it first proves it has such rights and is not expanding the scope of use in a court of law. It is undisputed that such rights have not been established within Glen Canyon NRA ... Because there was no special federal regulation allowing OHV use in Glen Canyon NRA when this case was filed ... and because Kane County has not yet established that it possesses R.S. 2477 rights of way across the recreation area, federal rules prohibit OHV use. ... Accordingly, unless and until Kane County establishes its R.S. 2477 rights of way, the Ordinance and Kane County’s such signage actions within Glen Canyon NRA are preempted.
But in his dissent, Judge McConnell stressed that:
A great many of the roads of the West, including virtually all the roads that provide visitors access to the Grand Staircase-Escalante National Monument in southern Utah [hereinafter “the Monument”], are based upon rights-of-way established under the authority of a congressional statute passed in 1866, popularly called “R.S. 2477.” When the plaintiffs’ members testify that they enjoy recreating in “areas adjacent to the Hole-in-the Rock road, Hackberry Canyon, Buckskin Gulch, Paria Canyon and the White House Campground,” Maj. Op. 15, they travel to those places over R.S. 2477 roads. Kane County and its counterparts maintain these roads to keep them safe and passable; the Counties set and enforce speed limits and other rules of the road; they provide search and rescue services to visitors in trouble; all this is done through the exercise of rights obtained under R.S. 2477. None of the R.S. 2477 roads in Kane County, and precious few in the rest of Utah or the West, have ever been proven or established in court. That has never been necessary. For more than 150 years, R.S. 2477 routes have been regarded as vested property rights, based solely upon continuous public use across unreserved federal land for the requisite number of years prior to 1976. As this court explained in Southern Utah Wilderness Alliance v. BLM, 425 F.3d 735, 754 (10th Cir. 2005) [hereinafter “SUWA”], rights-of-way were “established” and“legal title . . . passed” on the basis of public use, “without any procedural formalities” and with “no notice or filing requirements of any kind.” Id. at 753-54.
The majority ruling was hailed by conservationists.
"This is a great day for the protection of our national parks, monuments and wilderness areas in Utah and across the country," said Ted Zukoski, one of the Earthjustice attorneys who handled the case. "All of the judges agreed that Kane County broke the law when it posted signs opening closed routes on public lands without proving they have a right of way."
Mr. Zukoski noted that there's still plenty of motor vehicle access across federal lands in Kane County. Nine-hundred and eight miles of routes remain open in the Grand Staircase-Escalante National Monument under the federal management plan, he pointed out.
The ruling also did not affect the ability of local governments to work cooperatively with federal land managers on management of major open roads crossing federal lands.
"This case is important because it will thwart the abusive efforts by some counties to hamstring protection of federal lands by merely claiming that old trails, cow paths and streambeds are actually county highways immune from federal law," explained Heidi McIntosh, one of the attorneys who brought the case. "R.S. 2477 is not a get-out-of-jail-free card."
Added Phil Hanceford of The Wilderness Society: "This is a common-sense ruling that should work for everyone. It leaves plenty of room for counties and the government to maintain a road system that gets people out to their public lands, while protecting the values Americans enjoy at one of the country's most extraordinary natural treasures. And anyone who has been to these amazing natural places knows they are treasures worth protecting."