|Norton says BLM revamping
its policies on rights of way - Tenth Circuit: That step follows an
appeals court ruling that favors Utah's definition of a county road on
October 20, 2005
By Joe Baird [email protected] or
The Salt Lake Tribune
90 South 400 West
Salt Lake City, Utah 84101
To submit a Letter to the Editor: [email protected]
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The statute was repealed in 1976, but existing roads were
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
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.