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RS 2477

RS2477 update from Brian Hawthorne, BlueRibbon Coalition, as of 1/1/06:

R.S. 2477: THE LEGAL BATTLE CONTINUES

Although most of the American public doesn't realize it, an R.S. 2477 Right of Way is their only guaranteed access across public lands. All other access rights are at the discretion of politically appointed bureaucrats, who often live far away from the lands at issue. If you understand this, you understand the importance of continued vigilance in the defense of these road rights.

"R.S. 2477" refers to a now-repealed portion of the 1866 Mining Act, which state's "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." While the grant was repealed in 1976, rights of way previously created under the statute can effectively remain "grandfathered" in and available to the public today.

R.S. 2477 claims have engendered great passion and confusion throughout the west, where state and local governments, federal land managers, public access proponents, wilderness advocates and private property owners have regularly taken irreconcilable positions on the issue.

On September 8, 2005 , a three-judge panel of the 10th Circuit Court of Appeals issued a decision that could bolster the efforts of local governments and public access proponents to protect R.S. 2477 rights of way. The decision represents a huge victory for millions of Americans who value access to public lands.

The ruling came in an appeal from a US District of Utah decision in SUWA V. BLM (DC NO. 2:96-CV-836-TC). The litigation began in 1996 when road crews employed by Utah 's San Juan , Kane and Garfield Counties graded sixteen roads located in southern Utah . The Southern Utah Wilderness Alliance (SUWA) and other anti-access groups filed suit against the three counties and the Bureau of Land Management (BLM), alleging that the counties had engaged in unlawful road construction activities and that the BLM had violated the law by not taking more aggressive action against road maintenance.

The BLM subsequently filed cross-claims against the counties, alleging their activities constituted trespass and degradation of federal property. The counties claim the road maintenance activities were lawful because the activities took place within valid R.S. 2477 rights of way.

The legislation wound its way through the US District Court in Utah for years until 2001, when Judge Tina Campbell issued a ruling that basically adopted SUWA's line of legal reasoning. Judge Campbell thus granted SUWA and BLM's request, ruling the counties did not have R.S. 2477 rights of way on fifteen of the sixteen roads at issue, and the counties maintenance work violated the law and constituted trespass under federal regulations.

The three-judge panel of the 10th Circuit reversed that ruling, finding that state law, not federal regulation, properly guides interpretation of the existence and scope of any R.S. 2477 roads. The case was remanded to the district court for new proceedings to address the validity of the counties' right of way claims, the scope of any such rights of way, and whether their actions constitute "trespass" on federal lands.

It will take some time to evaluate the impact of this important decision, but it appears the Circuit Court has reversed the District Court's deviation from the previously-established precedent and reminded the parties to focus on state law concepts in evaluating the counties' actions. R.S. 2477 claims have always presented complex legal, factual and political challenges. While this ruling will help clarify the rules of the game, it also leaves many thorny challenges for future debate.

To multiple-use advocates, this ruling was not unexpected. From the minute the ruling was made in the Utah District Court, it was assumed that much, if not all of the ruling would be overturned on appeal. But the ruling was made in 2001, and we've since had to endure the anti-access crowd waiving it in our face and working hard to represent Campbell 's ruling as settled precedent.

It has been a test of resolve, and not just for motorized access activists. County commissioners, state legislators, Governors and multiple use advocates across the west have had their determination and patience tested. Indeed, using Campbell 's ruling, many county commissioners have been courted by the federal agencies to take actions that would diminish public rights of way. County commissioners were threatened with the prospect of Campbell 's ruling becoming settled law, which was used as a reason to quit fighting for R.S. 2477 rights.

To the anti-access groups, this fight is a key step toward eliminating public access to public lands. Wealthy foundations are funding this effort, and their lobbyist's have convinced the highest levels of the federal government to support it. The fight has put pro-access groups in the situation of defending principles that should be settled law, and fighting the federal agencies whose job it is to support and defend that law.

BRC wants to express our sincere thanks to our partners in Utah who kept the pressure on local and state governments to vigorously defend these access rights. Each time you mention 2477 in your comments, each time you mention 2477 in your talks with politicians, and each time you join and contribute to organizations that support public access to public lands, you are doing your part to protect these road rights.

The lawsuit would not have been supported if politicians didn't realize their constituents want them to defend our road rights. Sometimes it's necessary to remind them, and now may be a great opportunity to do so by placing a phone call to your county commissioner and telling them, "Thanks for supporting the 2477 legal battle!"

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--For questions or comments on this article or related issues, contact: The BlueRibbon Coalition (BRC), 4555 Burley Drive , Suite A, Pocatello , ID 83202 1921. Phone: 208-237-1008, Fax: 208-237-9424. Email: <brmag@sharetrails.org>.

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RS2477 update from Brian Hawthorne, BlueRibbon Coalition, as of 6/30/05:

R.S. 2477 Update: It's reasonable to assume a ruling will come out of the 10th Circuit Court of Appeals in the ongoing battle for title to America 's backcountry roads sometime this year. For those of you new to public lands access issue, this is about roads that existed prior to the passage of the Federal Land Policy and Management Act (FLPMA) See: <www.sharetrails.org /uploads/PDFs/FLPMA.pdf>

The case at issue is commonly known as the 'Utah Trespass Case' and began many years ago. The litigious anti-access crowd, along with the Bureau of Land Management (BLM), is attempting to usurp jurisdiction of these roads via a lawsuit. It began in the Clinton/Gore administration when the BLM, under then Secretary Bruce Babbitt, cited several Utah counties with trespass after performing maintenance on certain roads.

For many years the case had been proceeding at more or less a parallel track to that of the famous Burr Trail case. However, in an unusual turn of events, the 'trespass' case switched in Utah 's federal district court from Judge David Sam to Judge Tina Campbell. In a highly unusual ruling, Campbell reversed all previous rulings and agreed with virtually all of the arguments brought by the Southern Utah Wilderness Alliance. If allowed to stand, Campbell 's ruling would invalidate most R.S. 2477 rights of ways.

That case was appealed by the State of Utah and several Utah counties and last year, the 10th Circuit Court of Appeals heard arguments both for and against Campbell 's ruling. BRC and our Utah partner, the Utah Shared Access Alliance (<www.usa-all.com>) filed 'friend of the court' briefs. We expect a ruling sometime in 2005.

The decision here will be critically important to anyone who wishes to visit the vast western American backcountry. Learn more about this important issue on the web: <www.rs2477roads.com>

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OLD NEWS FROM HERE ON.....

RS 2477, Published Apr. 17, 2003, by the Garfield County News (Utah)

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NOTE: This is only an excerpt from the article, specific to Utah but generic enough to help you understand RS2477.

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RS 2477 Roads: Deal Struck by Dept. of Interior and State of Utah

By Toni Thayer

The State of Utah and the U.S. Dept. of Interior entered into an agreement that many are hoping will resolve the bulk of the R.S. 2477 road issues. Utah Governor Mike Leavitt and Secretary of Interior Gale Norton signed the memorandum of understanding (MOU) on April 9th.

R.S. 2477 is the provision in federal law passed in 1866 that granted right-of-ways over public lands to the counties for construction of highways that became the transportation network allowing settlement of the western frontier. Under an R.S. 2477 right-of-way, the counties have control of the road, and the right is perpetual as granted by Congress. According to the Utah Association of Counties’ webpage, “approximately 90% of all roads in Utah's ten southern counties are R.S. 2477 rights-of-way.”

In 1976, Congress passed the Federal Land Policy and Management Act, giving title of all roads constructed after that date, and crossing public lands, to the federal government. The federal government has control of these “Title V” roads and gives the counties an easement for use. Any work outside of a road’s current scope must go through an environmental study and be approved by the federal government. Title V use is not guaranteed to the counties and may be withdrawn by the federal government.

In the past, disputes have arisen between the federal and county governments over control of roads crossing public lands and their correct classification, as either “RS 2477” or “Title V”. On June 14, 2000, the State of Utah sent a Notice of Intention to File Suit over Utah’s RS 2477 roads to the Secretary of Interior. In preparation for the legal challenge, the counties inventoried and mapped their roads and gathered historical information to support their claims.

According to Governor Leavitt in an April 9th teleconference, the recently signed deal establishes an administrative process whereby the counties will apply to the Bureau of Land Management (BLM) for an “Acknowledgement”, their acceptance or denial of certain roads as RS 2477. The MOU states that the counties will reimburse BLM for “the reasonable and necessary cost of processing each request”.

This submittal by the counties will initiate BLM’s standard public comment, decision-making and appeal processes. If BLM approves the RS 2477 status, they issue a disclaimer and record it at the county recorder’s office. At any time prior to actual recording of the disclaimer, the counties may withdraw their application.

The agreement hinges on seven touchstones as requirements for those roads that the counties may submit to BLM for their administrative decision. The touchstones are:

· Clear evidence of existence in, or before, 1976.

· Travel can be made by normal vehicles, such as cars and trucks.

· Not be in a national park.

· Not be in a wilderness area, Congressionally designated on or before Oct. 21, 1993.

· Not be in a wilderness study area, Congressionally designated on or before Oct. 21, 1993.

· Not be in a national wildlife refuge.

· Not be expanded, but accepted “where is, as is”.

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