Road ownership fight not over

Rural counties aren't quite ready to throw in the towel in their fight to claim ownership over dirt roads crisscrossing public lands.

San Juan, Garfield and Kane counties plan to go back to a Salt Lake federal court in hopes of overturning a decision by Judge Tena Campbell two years ago in a dispute over ownership of dirt roads.

The 10th Circuit Court recently dismissed an appeal filed by the three counties. The appellate court did not rule on the merits of Campbell's decision but dismissed the appeal because it lacked jurisdiction. Judges felt it was not ripe for appeal because Campbell did not rule on other aspects of claims by environmental groups.

The appellate judges essentially remanded the case back to Campbell to make a final decision before appeals could proceed in the Denver appeals court.

"We do intend to get it finalized so the 10th Circuit Court can address it on its merits," said Ralph Finlayson, assistant attorney for the Utah Attorney General's Office.

At issue are the so-called RS2477 roads, created through a provision in the Mining Act of 1866 that allowed states to claim rights of way across federal land. The law was initially intended to give prospectors easy access to their claims as a way to help settle the West.

Since that time, thousands of roads and trails have been created on federal lands, some of them nothing more than a four-wheel-drive track through the desert. The law was repealed in 1976, but any road in place prior to that time would still qualify as a local right of way under the old law.

In 1996, the Southern Utah Wilderness Alliance and the Sierra Club sued San Juan, Garfield and Kane counties for blading roads in areas under review for wilderness protection. The lawsuit specifically identified 16 routes, located in Hart's Point, east of Canyonlands National Park, in the Moquith Mountain Wilderness Study Area and in the Grand Staircase-Escalante National Monument.

Campbell ruled that the routes were not valid RS2477 claims because they have never been constructed and were not highways and did not access any particular destination.

Environmentalists hailed the 10th Circuit Court ruling because they say it upholds Campbell's decision. Campbell ruled that in order for a road to qualify as an RS2477 it had to have been constructed, not created simply by passage of vehicles, and it had to access identifiable destinations.

County attorneys have a different interpretation of the appellate court decision.

"The 10th Circuit Court didn't address the merits," Finlayson said. "The U.S. District Court ruling was not a final decision and it has to finalize (to proceed with the appeal)."

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