BlueRibbon Coalition Applauds R.S. 2477 Ruling

The BlueRibbon Coalition applauded last week’s 10th Circuit Court of Appeals that could bolster the claims of local governments and public access proponents to controversial “RS 2477 highways” criss-crossing many western lands. “This is a huge victory for millions of Americans who value access to public lands,” said BlueRibbon’s Public Lands Director, Brian Hawthorne.

The ruling came in an appeal from a U.S. District of Utah decision in SUWA v. Bureau of Land Management (D.C. NO. 2:96-CV-836-TC). The litigation began in 1996 when road crews employed by Utah’s San Juan, Kane and Garfield Counties graded sixteen roads located in southern Utah. The Southern Utah Wilderness Alliance (SUWA) and other anti-access groups filed suit against the Bureau of Land Management (BLM), San Juan County, Kane and Garfield Counties, alleging that the Counties had engaged in unlawful road construction activities and that the BLM had violated the law by not taking more aggressive action against the road maintenance. The BLM subsequently filed cross-claims against the Counties, alleging that their road construction activities constituted trespass and degradation of federal property. The Counties claim the road maintenance activities were lawful because the activities took place within valid “R.S. 2477” rights of way. The district court ruled that federal law, as interpreted by BLM, dictated critical legal definitions in the case relating to the establishment, scope and maintenance of the “highways.”

A three-judge panel of the 10th Circuit reversed, finding that state law properly guides interpretation of the existence and scope of any 2477 roads. The case was remanded to the district court for new proceedings to address issues such as the validity of the Counties’ right-of-way claims, the scope of any such rights-of-way, and whether their actions constitute “trespass” on federal lands. “It will take time to evaluate the impact of this important decision, but it appears that the Circuit Court has reversed the district court’s deviation from the previously-established precedent and reminded the parties to focus on state law concepts in evaluating the counties’ actions,” observed Paul Turcke, General Legal Counsel to BlueRibbon. “Contrary to the cries of anti-access interest groups, I think it unlikely that a new breed of “road warriors” will spring forth as a result of this ruling,” he stated. “2477 claims have always presented complex legal, factual and political challenges, and this ruling appears to only clarify the rules of the game while leaving many thorny challenges for future debate,” Turcke concluded.

“R.S. 2477” refers to a now-repealed portion of the 1866 Mining Act, which states “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” While this grant of highway construction authority was repealed in 1976, rights-of-way previously created under the statute can effectively remain ‘grandfathered’ in use and available to the public today. 2477 claims have engendered great passion and confusion throughout the West, were state and local governments, federal land managers, public access proponents, wilderness advocates and private property owners have regularly taken irreconcilable positions on 2477 assertions. “For BlueRibbon members, RS 2477 can offer additional protection to public access along some of the West’s most beautiful and historically-significant routes,” Hawthorne noted. “While we are disappointed that BLM joined SUWA and the anti-access groups in this case, we will continue to work with federal land managers and all interested parties in seeking solutions to this and other public lands issues in Utah and beyond, whether those solutions occur through collaboration, legislation or the courts,” said Hawthorne.