Written by Ti Hays
On Tuesday, a federal court of appeals in Denver ruled that vehicle routes in Utah’s Grand Staircase-Escalante National Monument that are closed to protect cultural and natural resources will remain that way—at least until Kane County can prove that it, and not the federal government, owns them.
The dispute underlying the case began in 1999 when the Bureau of Land Management (BLM) finalized a resource management plan for the Monument. In that plan, BLM closed several vehicle routes in order to protect the historic and scientific “objects of interest” identified in the Monument’s proclamation, including hundreds of “rock art panels, occupation sites, campsites and granaries,” as well as “many historic objects, including trails, inscriptions, ghost towns such as the Old Paria townsite, rock houses, and cowboy line camps. . . .”
Quite unhappy with the route closures, officials with Kane County entered the Monument in 2003 and removed about 30 BLM signs informing the public that certain routes had been closed to vehicles. Two years later, county officials again entered the Monument, this time posting over 100 signs declaring numerous routes to be “open” that BLM had closed in the management plan. Later that same year, Kane County fired yet another salvo at the Monument’s management plan when it passed an ordinance authorizing vehicle use on closed routes in the Monument.
What motivated Kane County to repeatedly flout the federal government’s authority over the Monument? Well, like many rural counties in the West, Kane County believes that the vast majority of routes on federal public land, even in protected areas like national monuments, national parks and wilderness areas, are not owned by the federal government. Rather, these counties fervently insist that ownership of those routes has passed from the federal government to counties and states under R.S. 2477—a 19th century statute granting rights of way to anyone willing to construct a “highway” over federal public lands. Yet, in spite of this insistence, Kane County has thus far not been willing to prove to a court that any of the Monument’s routes are actually owned by the county under R.S. 2477.
Soon after Kane County passed the ordinance, The Wilderness Society and Southern Utah Wilderness Alliance filed suit in federal district court against the county and its commissioners. The two conservation groups argued that Kane County’s efforts to reopen the closed routes were inconsistent with the Monument’s management plan and, therefore, “preempted” by the Supremacy Clause of the U.S. Constitution, which establishes federal law as the “supreme Law of the Land. . . .” The district court agreed and enjoined the county from enacting ordinances and posting signs that opened closed routes in the Monument until it had proved ownership of those routes.
Kane County appealed, and, in November 2008, the National Trust for Historic Preservation filed an amicus brief with U.S. Court of Appeals for the Tenth Circuit asking the court to affirm the district court’s decision. Our brief highlighted how a decision upholding the county’s action could undermine efforts by federal land managers to develop and implement comprehensive travel plans not only for the Monument, but for public lands throughout the West. The brief also discussed the likely chilling effect a decision in favor of the county would have on federal land managers’ willingness to close claimed but unproven R.S. 2477 rights of way, even when vehicle use was damaging or destroying cultural resources.
Recognizing that Kane County had proceeded “unilaterally” and without first proving ownership over the routes in question, the Tenth Circuit affirmed the lower court’s decision. If the county wants to exercise management authority over routes in the Monument, then the Tenth Circuit said that it must do more than “simply alleg[e] the existence of R.S. 2477 rights of way; it must prove those rights in a court of law . . . or obtain some other recognition of such rights under federal law”—a sensible holding that treats the county no differently from anyone else claiming an interest in property.
Ti Hays is the public lands counsel for the National Trust for Historic Preservation.
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