Counties lose round in Grand Staircase dispute

Kane and Garfield counties have lost a skirmish in their court challenge against Grand Staircase-Escalante National Monument concerning route closures in the monument's travel plan.

But the ruling by U.S. District Judge Bruce S. Jenkins does not seem to justify statements by the legal advocate Earthjustice, which represented environmentalists in the case. Earthjustice said in a press release that the ruling "blocks the counties' broad seizure of wash bottoms and seldom-used jeep tracks as highways ... (and) ensured that off-road highway development could not run amok in these unique national lands."

Actually, nothing in the decision reduces the counties' right to have all their road claims decided by a court — and, possibly, upheld. Jenkins did not throw out the RS2477 claims themselves but said the Bureau of Land Management was not the place to decide them.

On another crucial issue involving off-road vehicle restrictions on roads where the counties are acknowledged to have jurisdiction, the judge gave the counties leave to refile their suit under a different basis. He did not rule against their basic position that they, not the BLM, should regulate travel on the routes.

At the heart of the counties' 2005 suit is the RS2477 law, passed in 1866, which allowed counties to assert rights of way over roads across federal land. Although the law was repealed more than 30 years ago, RS2477 rights that were valid then remain in effect.

Jenkins ruled Friday against the counties' assertion that the BLM should have decided their RS2477 road claims before it formulated a travel plan for the sprawling southern Utah national monument.

Jenkins said it's not up to the BLM to decide all unresolved claims; if counties want a final decision on those matters, they can ask for a court review and shoulder the burden of proving their assertions. The burden should not be on the BLM, he wrote, citing decisions by the U.S. 10th Circuit Court of Appeals.

Jenkins noted the BLM's plan to manage the monument mentions several times that route closures are "subject to valid existing rights."

The judge wrote, "At the core of the counties' claims is a question of sequence.

"In their view, management of road travel within the monument should be addressed by the BLM only after all of the counties' unresolved RS2477 right-of-way claims have been determined by the agency," he wrote.