Garfield County in Utah has yet to prove historical use of the Burr Trail road through Capitol Reef National Park, a federal judge said in April.
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
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.
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of way on historic routes over public lands; it was repealed 20
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
"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."
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R.S. 2477 as an "ancient repealed statute" and said that the United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
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
"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
National Park Service officials claim the
bulldozing, done in 1996, was an unauthorized trespass that damaged
The writer reports for
the Salt Lake Tribune.