Trevor Leach remembers riding horses on Bald Knoll
Road as a child in the 1920s. During the ’60s, Arlene
Goulding and her kids used the route for hunting trips. The
testimony of these Kane County residents helped the Bureau of Land
Management piece together the history of Bald Knoll Road, which
laces across public lands in southern Utah. Now, the BLM is poised
to acknowledge Kane County’s claim to the route, and
environmental groups fear that decision will open the door to a web
of county-controlled roads on federal lands.
On Sept. 12,
after reviewing affidavits from locals, aerial photographs and
historical maps, the agency’s Utah office made a preliminary
decision that Kane County does hold the right of way to the route
– a determination that will allow the county to maintain the
primitive dirt road northeast of Kanab. When the final decision is
issued later this year, it will be the first time the BLM has
recognized a county’s right of way claim under a process
established in 2006 by then-Secretary of the Interior Gale Norton.
In Utah and other Western states, thousands of such old
roadways crisscross public lands. Many of them are mired in
controversy over who has the right to maintain and use the routes.
The question dates back to a provision known as R.S. 2477, which
was tucked into a mining law passed in 1866 and allowed states and
counties to construct highways across public lands.
When
Congress repealed R.S. 2477 in 1976, existing roads were
grandfathered in. But the definition of “existing road”
was broad, and many Western counties asserted claims to all types
of routes on public lands, including cow paths, faint vehicle
tracks, and streambeds that had once served as trails.
Bald Knoll Road, which appears in photographs dating back to the
1960s and has been used by locals for wood-gathering, camping and
mining for decades, probably deserves the title. But many so-called
“roads” are not nearly so clear-cut.
For
years, conservation groups and some private property owners whose
land is also crossed by R.S. 2477 routes have vigorously fought
more ambiguous road claims, and Utah has been at the center of the
storm. In 2003, Norton and then-Utah Gov. Mike Leavitt signed a
controversial memorandum of understanding designed to make it
easier for Utah counties to assert right of way claims. Two years
later, the 10th Circuit Court of Appeals ruled that the BLM cannot
officially decide R.S. 2477 claims, but the agency can make
“non-binding determinations” for its own use.
Shortly before leaving the Interior Department in 2006, Norton
issued orders outlining how the BLM should implement the appeal
court’s rulings, including the process for issuing
non-binding determinations. This June, U.S. District Court Judge
Bruce Jenkins ruled that petitioners must prove a road
claim’s validity in federal court – using their
state’s definition of a road – before the BLM can
legally validate a right of way. But that ruling does not stop the
agency from making unofficial decisions.
The BLM
emphasizes that the Bald Knoll Road decision is non-binding and
intended to be used for the agency’s “management
purposes only.” Even when the decision is finalized after a
30-day public comment period, it won’t be the last legal
word, according to Mike DeKeyrel, realty specialist for the
BLM’s Utah State Office. “It’s basically just an
acknowledgement that we believe a right of way exists under R.S.
2477,” he says.
But it’s difficult to tell
how this “acknowledgement” differs from an official
decision. Once the agency’s determination is final, the
county can perform routine maintenance, such as grading and culvert
repair, to preserve the current condition of the road. If the
county wants to make improvements – and Kane County does
– it must consult with the BLM to determine whether the work
is necessary to allow historical uses of the road to continue. In
the Bald Knoll Road case, if Kane County needs to add new culverts
or widen the road for hunting or sightseeing, the BLM can approve
those upgrades.
Despite its preliminary status, the Bald
Knoll deal is as good as done, says Heidi McIntosh, conservation
director for the Southern Utah Wilderness Alliance. She sees the
decision as a transfer of ownership over public land.
“I’d be willing to bet my next paycheck that the final
decision they make will be the same as the non-binding
decision,” she says. “As a practical matter, the county
and the BLM will start treating this as the county’s
road.”
While McIntosh admits that Bald Knoll Road
itself is not controversial, she believes the decision will have
much larger ramifications. “We see this as a sort of Trojan
horse,” she explains. “They’re using Bald Knoll
Road as a model to do dozens more of these transfers.”
And, McIntosh says, those future decisions could affect
roads running through fragile riparian areas or over land proposed
for wilderness designation.
DeKeyrel confirms that Utah
counties have several pending requests for R.S. 2477 recognition,
but says that the agency plans to consider only a few of them under
this new procedure.
The number of requests the BLM
considers is not as important as how the agency handles those
claims, according to Robert Keiter, a law professor and the
director of the Wallace Stegner Center for Land, Resources, and the
Environment at the University of Utah. “If the agency appears
to be applying as stringent of standards as the law requires, then
there’s no reason this won’t be a legitimate
process,” he says. “The public comment should be
helpful in guiding the agency.”
But Keiter also
notes that it’s unclear how, or even if, the BLM’s
decisions about Bald Knoll Road and future R.S. 2477 claims could
be protested: “If a party is dissatisfied or thinks the
agency has erred in its determination, is there further recourse
available?” At this point, the policy is ambiguous, according
to Keiter, because of a lawsuit pending in the 10th Circuit, which
will clarify when individuals and groups can protest agency
management decisions.
One thing everyone agrees on is
that Bald Knoll Road is a test case. “Other counties in
southern Utah and across the West may well be watching this,”
Keiter says, “to see if it’s a procedure they want to
invoke.”
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Okay, so the BLM made a "non-binding determination" about the RS 2477 asserted route. That means absolutely nothing. As HCN states, “the 10th Circuit Court of Appeals ruled that the BLM cannot officially decide R.S. 2477 claims, but the agency can make ‘non-binding determinations’ for its own use.” The court went on to say that only the courts can make binding determinations, not the BLM.HCN goes on to state that, “But it’s difficult to tell how this ‘acknowledgement’ differs from an official decision.” No it’s not. They are very different. A binding determination could transfer jurisdiction of the road over to the county (this needs to be tested in the courts, but this is possible). That is a big deal, I agree. But a non-binding determination gives the county exactly jack squat. I wonder why counties are even asking the BLM to go through this useless process, and why the BLM agrees. (The courts said BLM has the discretion to make these non-binding determinations).
In June this year, Kane County, Utah v. Kempthorne was heard. The federal court in Utah upheld the BLM’s right to make travel planning decisions even where a county has asserted (but not received any court adjudication) an R.S. 2477 right-of-way and to do so without first making non-binding determinations on these claims. So there you go: a non-binding determination transfers no rights to the county. Why wasn’t that mentioned in the article? No hysteria yet, please.