Road ruling could spur suits

A classic states-rights battle played out in front of a federal appeals court Friday, with three rural Utah counties trying one last time to gain ownership over dirt roads running through federal public lands.

Technically, the case is limited to the 16 specific routes identified in the 1996 lawsuit brought by the Southern Utah Wilderness Alliance and the Sierra Club. But in reality, the 10th U.S. Circuit Court of Appeals' decision could affect claims to thousands of miles of dirt roads and trails that crisscross federal lands in virtually all of rural Utah and throughout the western United States.

On Friday, the three-judge panel quickly keyed in to the widespread implications of the issue, with 10th Circuit Judge Michael McConnell asking a state attorney if the matter wasn't really a "test case" meant to test the water for future claims.

"If you win, is it your client's position that there may be many other tracks or roads that the county will move to improve?" McConnell said. "Are there other suits waiting in the wings?"

Assistant Utah Attorney General Ralph Finlayson affirmed the test case designation, saying there are "thousands" of disputed rights of way in Utah alone.

"There are many other roads that would be affected by the precedent of this case," he said.

Outside of court, Finlayson declined to say how many lawsuits could be expected to be filed if the counties prevail on appeal. On Wednesday, the state filed a complaint on behalf of six Utah counties — Beaver, Box Elder, Emery, Uintah, Washington and Wayne — seeking title to six identified routes.

With regard to the scope of the issue, attorney Jerome Epstein, representing SUWA and the Sierra Club, suggested states could use a favorable ruling to seek title to "tens of thousands" of hiking trails in national parks.

"The ramifications of the decision in this case are enormous," Epstein said. "This is not hypothetical. States from 1898 to 2000 have attempted to seize public lands by fiat."

The counties are attempting to claim ownership of the routes, many of which are little more than indistinct two-tracks and cattle trails, under a 19th century mining law called RS2477. The law was repealed in 1976, but any road in place prior to that time can qualify as a local right of way for purposes of highway construction.