The federal government wasn't supposed to decide if counties have legal rights to a plethora of road claims within Grand Staircase-Escalante National Monument before writing a management plan for the monument, a federal lawyer argued Thursday.

That plan by the Bureau of Land Management, which operates the monument, closed many routes that Kane and Garfield counties claim under the RS2477 statute. The counties have sued the government over the issue.

Tom Snodgrass of the Department of Justice office in Washington, D.C., said the counties are wrong in asserting the BLM can't control traffic on the few adjudicated rights of way the counties do have.

The scene was the courtroom of U.S. District Judge Ted Stewart. Ted Zukoski, a lawyer from the Denver-based Earthjustice group, representing environmentalists, agreed with Snodgrass that a suit by Garfield and Kane counties and the Kane County Water Conservancy District should be dismissed.

Water is an issue as well because the BLM says in its management plan that water can't be taken from the 1.8 million acre reserve if it would damage resources inside, according to attorneys.

Shawn Welch, a Salt Lake City lawyer for the counties and water district, argued against the dismissal motion. The court was acting on an appeal, he said, and appeals rules don't allow a dismissal motion at this point. Instead, the agency's actions should be reviewed, he said.

The suit attacks the failure of the BLM to make its plan jibe with county plans, he said. The agency is required to do its best to make them mesh, Welch added.

The Federal Land Policy and Management Act requires the BLM to make its plans fit with valid existing rights of way, he said.

Ignoring county assertions on road rights is "a willful blindness" by the BLM, he said.

The heart of the battle, Snodgrass said, is the plaintiffs' claim that the monument management plan should be set aside because it did not identify roads the counties had claimed under the RS2477 statute.

The law, dating to around the end of the Civil War, allows rights of way across federal land. To be valid today, road use must have been established by 1976.

If the counties want to assert road rights other than the few routes that were adjudicated, they must take action to do it themselves, he said. The BLM isn't supposed to do it for them.

Stewart noted the suit asserts unjustified restrictions have been placed on the routes that were adjudicated. For example, off-road vehicles are banned.

The counties are trying to use the argument to pursue many routes to which they have been asserting rights, Snodgrass said.

Quoting another legal decision, he said unsupported assertions to ownership do not create judicially enforceable rights.

BLM officials have no duty under any law to define the RS2477 rights of the counties, said Zukoski. If the counties want to prove rights of way, they can. But it's not the BLM's duty to do it for them.

Does the BLM have the right to "prohibition of specific types of vehicular traffic?" Stewart asked.

Zukoski said the agency has the right to manage use of a road across federal land.

Stewart took the matter under advisement and said he would rule as soon as he can.

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