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By: Robert Janis

A Sagebrush Rebellion Swirling through Western States

Continued from page 1...

Mark Habbeshaw, former commissioner of Kane County, was involved in the litigations Noel referred to and is an expert on the issue. He served two four-year terms as a county commissioner. He got involved in the public land controversy when he moved to Kane County. “I moved there to retire,” he said. “Soon after I saw that there was a meeting sponsored by The People from U.S.A. I recreate virtually all of my life on motorcycles, jeeps, mountain bikes and later with horses. Well, I attended the meeting. It was over the local closure of roads because of the Grand Staircase-Escalante National Monument plan. I thought it was something I should get involved in. I signed up with The People from U.S.A., and then they formed a road committee. I volunteered to serve on that committee. I served on it with Mike Noel and formed a relationship with him. He asked me to serve on the Kane County Resource Development Committee with Noel as a volunteer.”

Habbeshaw developed comments for commission approval concerning the roads issue and a federal grazing elimination program between the Monument’s management and Grand Canyon Trust. The grazing elimination issue later grew into a litigation, which preserved grazing in the county. Due to his work, people asked him to run for county commissioner.  He did and won. “Within a month after joining the commission we sent a letter to the Monument manager requesting he take down the posting of the federal restrictions on our county roads,” said Habbeshaw. “He refused. So we then removed 31 hand- picked signs to move the issue forward. It took us on a course which eventually led to our current quiet title litigation. The litigation also resulted in a 10th Circuit Court en banc decision that overturned a district judge’s ruling in a law suit brought by the Wilderness Society to enjoin the county from managing our county’s roads.

“When we removed the signs, the federal government didn’t take action against us,” continued Habbeshaw. “The case did go to the grand jury, but nothing came of it. We wanted the government to file a legal action, and we were going to rely on an affirmative defense that the roads were county roads. We didn’t have the intent of just removing the federal signs. We wanted to get a legal action started.” About two years later the commission started posting county signs alongside the federal signs that were in conflict. “The federal signs said the roads were closed to ATV travel; we said in our signs that they were open,” said Habbeshaw. “When the postings got into the Monument area, the Wilderness Society and the Southern Utah Wilderness Alliance filed action against the county saying that we were violating the Constitution and challenging federal sovereignty.”

U.S. District Judge Tina Campbell got the case. Habbeshaw pointed out that she had been criticized by the 10th Circuit Court of Appeals involving her decision in a previous RS2477 road case.  RS (or Revised Statute) 2477 was passed by Congress in 1866 and provides “the right-of-way for the construction of highways across public lands not otherwise reserved for public purposes...” The law was repealed in 1976 under the Federal Land Policy and Management Act (FLPMA), but the law allowed for the continued existence of roads created under RS2477 prior to the approval of FLPMA). Judge Campbell stopped the county from posting conflicting signs. She ruled that Kane County did not have jurisdiction over any roads crossing federal lands without going through a federal quiet title process. “The ruling undercut any claim of jurisdiction under RS2477 unless we secured formal quiet title,” said Habbeshaw.

As a result of the decision, the Kane County commission stopped its management over county roads in federally-managed lands for three years. The federal government did not maintain the roads, and they were badly deteriorating. The Kane County Commission appealed to the 10th Circuit Court which ruled in a three-judge panel 2-1 against the county. “Judge McConnell, who has since left the court, wrote a very strong dissent, and we appealed for an en banc review. The full 10th Circuit Court made its decision in December that Campbell erred regarding the court’s jurisdiction to decide the case and made other mistakes in her decision. Then, they vacated her decision--completely overturned it. So today we can now rely on a claim of assertion of RS2477, and we are again managing and maintaining county roads. “

The commission filed for quiet title on 15 roads and asked U.S. District Judge Clark Waddoups for an expedited summary judgment hearing because of the hazardous conditions of the roads. He granted the hearing. “So, now the federal government had to prepare a brief for the hearing supporting their position that we didn’t have jurisdiction under RS2477 or standing to quiet title. In their brief, they acknowledged for the first time RS2477 jurisdiction over five roads. We won, and that was a major victory,” said Habbeshaw. “So, the federal government accepted our quiet title jurisdiction over those roads. It was the first time that the Department of Interior and the BLM recognized RS2477 jurisdiction by a county.”

Moreover, the decision of the en banc 10th Circuit Court which reversed Judge Campbell’s decision also ruled that the Wilderness Society and the Southern Utah Wilderness Alliance had no standing in a road property rights issue between the federal government and a county. Habbeshaw pointed out that as the 10th Circuit Court has ruled that environmentalists did not have standing on road property rights issues, the 9th Circuit Court has ruled that they do have standing. “So this is probably heading for the U.S. Supreme Court,” he said.

According to Habbeshaw, federal action threatens about 168 Kane County roads. “We initiated a second quiet title for an additional 49 roads. Since I left office, the new commission has amended it to include another 40 roads for a total of 89 roads,” he said. “That can further be amended and Kane County has the goal of filing all their roads under RS2477.”

Habbeshaw pointed out, however, that the clock is ticking concerning a county’s right over management of roads through a quiet title. He said that counties have only 12 years to file quiet title according to the Monument plan approved in 1999. “That means that if counties don’t file for quiet title by November of this year, they can lose their ability to secure roads by quiet title,” said Habbeshaw. He noted that many counties are relying on Title 5 of the Federal Lands Policy Management Act (FLPMA) which allows the county limited, revocable, permitted use of the highway. “A lot of counties think this is okay. But RS2477 is permanent, and unless the federal government goes to court and gets a judge to agree that the county is exceeding its authority under RS2477, it cannot interfere with the county’s operation of its highways. One is a property right (ownership of the road), while the other is a permitted use of a federal road.”

Habbeshaw concluded that state legislatures need to allocate state funding to fight the battle. He also said that public roads are just one of many issues. “This is about land management,” he said. “The federal government wants absolute control involving grazing, state water rights, gas and oil, extracting of natural resources. The Federal Land Policy Management Act (FLPMA) was supposed to protect all that. The law said that when states joined the United States, lands within those states except military bases and federal property like a post office, would fall to state ownership through disposal over time.  In 1976, Congress changed the philosophy from disposal of federally-managed lands to retention of those lands. Despite promises made in FLPMA that federal planning would be consistent with state and local planning, land management agencies are ignoring the act’s protection of local interests. So, the fight over public land management is broad based and involves the competing interests of local, state, and federal governments.”

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