With the ruling, U.S. District Judge Bruce Jenkins rejected the county's motion for summary judgment, and now a trial will likely begin this summer.
An attorney defending Garfield County in a trespassing lawsuit filed by the Department of Interior over unauthorized road construction in the park said if the court would acknowledge the county had a historic right of way, "it would simplify this case early on."
But Jenkins said evidence was too sketchy that the public regularly traveled the twisting dirt tracks between the town of Boulder and the Colorado River before the turn of the century.
"It would appear that the question of history, like most history, is disputed and lacks the clarity required for determining as a matter of law the undisputed facts," he said. "This court does not assert or reject the legal assertions of the United States, but this merely means we have a factual dispute that compels us to move forward."
This is the first of several cases made by the government against rural southern Utah county commissions who maintain they don't need the federal government's permission to improve backcountry roads.
The case could yield direction on settling the multitude of so-called "R.S. 2477" claims in Utah. The Civil War-era land settlement law gave counties rights of way on historic routes over public lands; it was repealed 20 years ago.
In defending Garfield County, attorney Ron Thompson argued that the Burr Trail qualifies as an R.S. 2477 right of way because it was maintained and used by the public nearly a century before Capitol Reef National Park was created in 1969.
"This road was established in the 1880s as a supply route and a livestock route that went to the Colorado River and by its regular use became a public right of way," he said, claiming that state law allows a 66-foot-wide right of way. "It is clear from every history provided that ... there was no evidence of abandonment."
Assistant U.S. Attorney Margo Miller countered that there was no evidence of 10 years of continuous public use of the one-mile segment in dispute, from 1898 to 1916.
She repeatedly referred to R.S. 2477 as an "ancient repealed statute" and said that the United States never has formally acknowledged that such a verified right existed.
Bill Lockhart, an attorney for the National Parks and Conservation Association, argued that whether a county right of way once existed is now irrelevant within Capitol Reef.
"The National Park Service has full authority to regulate activities within the boundaries of the national park," said Lockhart. "The evidence shows repeated warnings and the county's complete failure to comply."
County crews claim they were merely eliminating safety hazards when they bulldozed the road through the national park from an existing width of 18-26 feet to a new width of 26-32 feet.
National Park Service officials claim the bulldozing, done in 1996, was an unauthorized trespass that damaged park resources.
* Christopher Smith
The writer reports for the Salt Lake Tribune.
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