October 20, 2005

By Joe Baird [email protected] or 801-257-8753

The Salt Lake Tribune

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Provo Canyon, Utah - Interior Department Secretary Gale Norton said Wednesday that the Bureau of Land Management (BLM) is revamping its right-of-way policies following a recent appeals court ruling that gives deference to the state's definition of what constitutes a county road as it crosses federal land.
   
Norton, who was in Utah County to present grants to Utah and Idaho water districts and companies as part of her "Water 2025" initiative, said that because the appeals process is still playing out, it is still too early to draw any final conclusions about a September decision by the 10th Circuit Court of Appeals that essentially broadened the definition of a county back road.
  
But she also said that the Denver-based appeals court "laid out the law in great detail. Barring more litigation, we will begin putting that order into effect."
  
The 10th Circuit's ruling has its roots in a 1996 lawsuit in which the Sierra Club and the Southern Utah Wilderness Alliance sued the BLM for failing to prevent San Juan, Kane and Garfield counties from grading routes across the Grand Staircase National Monument and other areas conservationists had targeted for wilderness protection.

The counties claimed they were only maintaining existing jeep and mining roads under RS2477, an 1866 law which granted rights of way across federal land.

The statute was repealed in 1976, but existing roads were grandfathered in.
  
A district court ruled that the county's road claims did not meet the BLM's criteria requiring proof of destination or evidence of "purposeful" and "mechanical" construction.

But the appeals court rejected those requirements in favor of Utah law, which requires that local governments only prove that a road has been in "continuous use" for 10 years.
  
Norton said she welcomed the decision insofar as it laid out some clear markers for the BLM to follow.
  
"It's important to understand what the rules are. To the extent that we now have clarity on those rules, it's beneficial," she said.
  
Less clear is the fate of a memorandum of understanding (MOU) Norton signed in 2003 with then-Utah Governor Mike Leavitt.

Under the agreement, Utah was to submit road claims to the BLM for what was supposed be a relatively quick approval process.

But two of the original six claims have been challenged by environmental groups, and the agency has yet to clear the others.
  
The 10th Circuit's decision "may change the legal background of [the MOU]," Norton said.

"But the purpose of it was to resolve these road claims peacefully, without litigation. That's still the goal."
  
The state and its counties have five pending lawsuits against the Interior Department over road claims.

Following the 10th Circuit's ruling, the state unveiled a new initiative directing the counties to identify, record and map their back roads in order to claim them.
   
Governor Jon Huntsman Jr., who appeared with Norton on Wednesday, said the new initiative will be challenged.
  
"I would not be surprised if something comes up in this [appeals] period," he said. "We're just going to have to wait and see what happens next."
   
 

Copyright 2005, The Salt Lake Tribune.

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