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Utah vs. feds: Preparing with road trips, cameras, interviews with old-timers

Published: Sunday, June 30 2013 6:05 p.m. MDT

This road in Iron County is one of the 12,400 roads the state is seeking title to in its fight with the federal government over preserving access.

Public Lands Policy Coordination Office

SALT LAKE CITY — A legal team from Utah is traveling to remote areas throughout the state, recording testimony from aging witnesses and filming panoramic views of roads that snake through canyons or cross sagebrush-peppered lands.

The information is being compiled for the state's legal fight against the federal government in which it filed 22 lawsuits in 2012 that have since been consolidated into one case.

In a briefing recently given to a committee of lawmakers, Kathleen Clarke said there is some urgency in getting depositions from witnesses because they are aging.

"Some of these folks are our best witnesses," said Clarke, who is director of the Governor's Public Lands Policy Coordination Office. "Not knowing how long it will take or if any of these cases will ever be heard in court, we have an awfully long line of witnesses to get through."

Clarke said that as part of the requirement that the state prove that the roads existed and had 10 years of use prior to 1976, the legal team is also filming the roads.

"We are filming so the judge won't have to get into a Jeep and drive down these roads."

The roads in question are what's called RS2477 roads — named after a statute enacted in 1866 to promote settlement of the western United States by granting rights-of-way to states and counties for transportation.

The statute was repealed by the Federal Land Policy and Management Act, but that action was subject to "valid existing rights," giving rise to an interpretation by Utah and other Western states that the federal government can't forbid access.

Negotiations with the Department of Interior over title to the roads have lingered for years, finally propelling contentious legal battles in which Utah has alternately been victorious and suffered defeat.

One such loss was access to Salt Creek Road in Canyonlands National Park, which the state and San Juan County contend was illegally closed by the National Park Service.

Harry Souvall, public lands section chief for the Utah Attorney General's Office, said the case has been heard on appeal by the 10th Circuit Court of Appeals, with a decision to be released later this year.

The Salt Creek Road, he told lawmakers, is a good example of why many of the disputed roads are critical for economies of rural counties in Utah.

"Park service attendance and tourism in San Juan County were dropping and it's because people can no longer drive to see Angel Arch. It is now a nine-mile hike to get in there to see it. A lot of people can't do a nine-mile hike in sand to see anything, let alone this gem," he said.

The National Park Service has maintained the road was closed to motorized traffic because it was a streambed that was suffering from environmental degradation.

Souvall said the state has another RS2477 case stemming from a Kane County road dispute that is likely to be heard before the 10th Circuit as well. Together, the two cases have the potential to bring clarity and certainty to the issue.

"There's still that question on what we can or cannot obtain," he said.

The state's efforts have been resoundingly criticized by multiple environmental groups that argue its quest for title to the roads is a costly, irresponsible battle that will only lay waste to pristine landscapes.

"I am sort of shocked when I hear it is 12,500 roads and the largest litigation effort in the state," said Heather Bennett, with For Kids and Lands, an education coalition. "It comes back to the question of what is the best use of resources in this state."

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