Lawsuits, public lands, county and roads

By PATSY STODDARD Editor

Emery County is involved in a lawsuit concerning seven of its roads which were closed by the Bureau of Land Management. The Attorney General’s office has teamed up with Emery County to try to resolve road issues within the county.
In the July Emery County Public Lands council meeting, Dickson Huntington, council member, wondered if the county should revisit the route designation plan concerning the lawsuit. He said no cattlemen have approached him on the lawsuits and he doesn’t share the enthusiasm for the lawsuits that some have. Public Lands Director Ray Petersen, said that two of the attorneys involved with the lawsuit are coming to the meeting to discuss the reasons behind the lawsuit.
Huntington said he felt since the county has a MOU, memorandum of understanding, with the BLM to work cooperatively that a lawsuit was counterproductive. He feels the lawsuit is being driven by ATV folks. He said his view of a RS-2477 road is one that has been constructed and some of the roads named in the lawsuit seem nothing more than a tire track. Even with the closed road at Mexican Bend the cattleman is still able to get his cattle in.
Tory Killian, council member and chairman of the recreation subcommittee, said they need to work together on these road issues. Huntington countered that they only work together as long as the ATV people get everything they want.
Huntington said we are shooting ourselves in the foot and we need to show an interest in protection.
Killian said she believes there is less damage now on the Swell and the lands are looking better due to better education of ATV riders. Floyd Johnson from the BLM said he believes there is less damage than two years back.
Vernell Rowley, assistant chairman of the lands council said we need to protect our rights and heritage.
Huntington said the route designation plan was nine years in the making and a complete document.
Petersen said there have been negative ATV impacts on the Swell and there is a need for the road issues to be settled. After the route designation plan came out the county voiced its concerns with the plan and put the BLM on notice that some of the roads the county wanted left open and were designated closed on the route designation plan would be litigated at some future date. There are some roads the county doesn’t agree with the BLM on, “not a bunch of roads,” said Petersen, but seven roads for now.
Huntington said he can’t see that we are giving up a whole lot by having these roads closed. Petersen said he has heard from local cattlemen and with the road on Mexican Mountain being closed for many years, one cattleman has had cattle dying in there and can’t get to them. Some grazers say closed is OK and some say we need to be able to get to our cows.
Killian said she was concerned about the definition of a road in a wilderness study area, and to her knowledge in a WSA an existing road could remain open, but no new construction could take place.
Petersen said WSAs by definition don’t have roads.
Mike McCandless said there were originally 10 roads involved with the lawsuit, but it is now down to seven. “The BLM knows about this, they were not blindsided. The BLM wants a decision. The courts need to decide. The word road needs to be defined. There are seven roads identified that the county agrees to disagree on with the BLM. Our relationship with the BLM has not been harmed.
Huntington said it was his understanding that these roads needed to contain a certain amount of construction.
Killian said that some roads are constructed by use like the old uranium mine roads.
Floyd Johnson said WSAs should contain no roads. But, the language says ways and routes. Gary Petty, lands council member pointed out that Copper Globe has a road through it.
Petersen said there has been much concern since the route designation plan came out in February 2003. Many have expressed concern about routes not listed on the route designation plan and they have wondered why they are not listed as open.
The court is still deciding on whether or not SUWA can intervene in the lawsuit. There is a motion on the appeal, and a decision that SUWA did not have standing will either be upheld or reversed.
The seven roads in question include: Mexican Mountain which is a WSA, closed portion, but the road is cherry stemmed; Sids Leap, within a WSA, Copper Globe, two portions of Link Flat, Segers Hole, Red Hole Draw and Junes Bottom Road.
Petersen said these are a variety of roads with different uses and since the roads are in litigation the county cannot discuss the strategy which will be used in the court case. Mexican Mountain also contains an active airstrip. “We have no agreement on these roads, that is why it is before a judge.
Petersen said they have been asked why pursue a Title 5 to a road if it is a RS-2477 road which resolves the ownership of the road and Title 5 applies to right-of-way to the roads.
RS-2477 roads are not cut and dried and a lot of them in Petersen’s opinion will end up in litigation so the county deemed it wise to at least tie down some roads as Title 5.
In determining the status of the road there is a time element involved. RS-2477 roads pertain to all roads constructed from 1866 until 1976. The law on construction of roads led to the settlement of the west. If a road needed to be made to get somewhere, then the federal government granted that right to construct that road for the westward expansion era.
In 1976, the Federal Land Policy Management Act came into existence. Now, to create a road a different process, must be adhered to and Title 5 is a way to do it, (construct a road). The problems arise in that RS-2477 roads were not inventoried and therefore the confusion enters on whether or not a road is a road and when it was created. Newly constructed and reconstructed roads in the county which are Title 5 roads include the Moore Road and the new road to Goblin Valley. New bridges are also Title 5 including the swinging bridge.
Johnson said that the BLM grants right-of-ways to the county to use these roads on BLM land. But, who controls the road is usually a matter of contention. The road is to be maintained according to its purpose. Sometimes a right-of-way is just granted for a certain period of time, like for gas well exploration or those types of activities.
It was pointed out that Congress determines and sets boundaries for wilderness areas and how roads are allowed in wilderness areas has yet to be addressed as all WSAs in Emery County remain as WSAs and their status has not changed in 20 years.
Emery County Commissioner Gary Kofford pointed out that if the county can obtain Title 5 status on roads then there will be no contention on such roads in the future. If Title 5 rights are granted then the county will have proof and a document and the right. Currently the county has no rights and RS-2477 rights have not been proven yet, so they may or may not exist. So the county is looking for some longevity in obtaining rights for these roads. Things change and the BLM management in the future may have different ideas on rights concerning these roads. If the county has nothing to prove rights, then maybe the next group in the BLM management will close more roads. If the county gets Title 5 it will help end contention and the county will have proof that it is a county road, speculated Kofford.
Emery County has taken a different stance than other counties. They have tried to work within the system and partner with the BLM. The attorneys can haggle out the details, while an amiable relationship is maintained between the BLM and the county. Kofford listed those reasons as why the county is looking at Title 5.
Title 5 roads may be more limiting than an RS-2477 right-of-way would be, but currently the federal government is reluctant to acknowledge RS-2477 roads. As the state and county feels it has a legal right to ownership of these roads they are going for recognition from the courts. RS-2477 roads carry an autonomy and can be maintained without permission from the BLM. The county would prefer RS-2477 rights to Title 5 rights.
With a Title 5 the government still owns the road and gives you back a permit with limitations to use and maintain the road. If the user violates any of these limitations the BLM can cancel the right-of-way.