Feds sue a Utah county for building a road in a national park

 

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 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 The Civil War-era land settlement law gave counties rights of way on historic routes over public lands; it was repealed 20 years ago.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She repeatedly referred to R.S. 2477 as an "ancient repealed statute" and said that the United States never has formally acknowledged that such a verified right existed.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.

The writer reports for the Salt Lake Tribune.

High Country News Classifieds
  • COMMUNICATIONS AND OUTREACH ASSOCIATE
    Communications and Outreach Associate Position Opening: www.westernlaw.org/communications-outreach-associate ************************************************* Location: Western U.S., ideally in one of WELC's existing office locations (Santa Fe or Taos, NM, Helena,...
  • OFFICE ADMINISTRATOR AND BOOKKEEPER
    Posted: July 19, 2021 Application deadline: August 27 or until position is filled. Western Colorado Alliance for Community Action is seeking a fulltime Office Administrator...
  • COMMUNITY ORGANIZER
    Posted: July 15, 2021 Application deadline: August 21, 2021 or until position is filled Western Colorado Alliance for Community Action is seeking three full time...
  • A FIVE STAR FOREST SETTING WITH SECLUSION AND SEPARATENESS
    This home is for a discerning buyer in search of a forest setting of premier seclusion & separateness. Surrounded on all sides by USFS land...
  • CARPENTER WANTED
    CARPENTER WANTED. Come to Ketchikan and check out the Rainforest on the coast, HIke the shorelines, hug the big trees, watch deer in the muskeg...
  • AUDIENCE ENGAGEMENT EDITOR
    High Country News (HCN) seeks an audience editor to attract and acquire new audiences and deepen engagement with them - in our newsletters, on our...
  • COMMUNITY MARKETER
    High Country News (HCN) is looking for a Community Marketer to build and strengthen relationships between HCN and other organizations and individuals, with the aim...
  • FINANCE & OPERATIONS MANAGER
    Job Announcement: Finance and Operations Manager Announcement date: July 16, 2021 Applications will be reviewed on an ongoing basis and first review will begin: August...
  • DEVELOPMENT DIRECTOR
    Job Announcement: Development Director Announcement date: July 16, 2021 Applications will be reviewed on an ongoing basis and first review will begin: August 9, 2021...
  • HECHO POLICY AND ADVOCACY MANAGER
    Hispanics Enjoying Camping, Hunting, and the Outdoors (HECHO) was created in 2013 to help fulfill our duty to conserve and protect our public lands for...
  • HECHO NEW MEXICO SENIOR FIELD COORDINATOR
    Hispanics Enjoying Camping, Hunting, and the Outdoors (HECHO) was created in 2013 to help fulfill our duty to conserve and protect our public lands for...
  • IDAHO STATE DIRECTOR
    The Wilderness Society is seeking a full time Idaho State Director who will preferably be based in Boise, Idaho. This position is part of our...
  • CAUCASIAN OVCHARKA PUPPIES
    Strong loyal companions. Ready to protect your family and property. Proven against wolves and grizzlies. Imported bloodlines. Well socialized.
  • DEPUTY DIRECTOR
    The Nature Conservancy in Alaska is dedicated to saving the lands and waters on which all life depends. For more than 30 years, TNC has...
  • STAFF ATTORNEY, CLIMATE AND ENERGY PROGRAM
    STAFF ATTORNEY POSITION OPENING https://westernlaw.org/career-opportunity-climate-energy-staff-attorney/ ************************************************** Position Title: Climate and Energy Program Staff Attorney Reports to: Climate and Energy Program Director Location: Helena, Montana; other...
  • STAFF ATTORNEY, WILDLANDS AND WILDLIFE PROGRAM
    STAFF ATTORNEY POSITION OPENING https://westernlaw.org/career-opportunity-wildlands-staff-attorney/ ************************************************** Position Title: Wildlands and Wildlife Program Staff Attorney Reports to: Wildlands and Wildlife Program Director Location: Portland or Eugene,...
  • DISCOUNT SOLAR PANELS
    New w/25 year warranty. Shipped anywhere in the lower 48. Minimum order of 10 units. Call, text or email for current prices. .50-.80/ watt
  • SWEET MOUNTAIN HOME
    3.8 acres in pine and fir forest on a year round creek. Custom home, 2x6 framing, radiant heat, wrap around decks and established berry patch....
  • ENVIRONMENTAL GEOPHYSICS
    "More Data, Less Digging" Find groundwater and reduce excavation costs!
  • SPRING-FED PARCELS ON THE UPPER SAC RIVER
    Adjacent parcels above the Upper Sacramento river, near Dunsmuir. The smaller is just under 3 acres, with the larger at just under 15 acres. Multiple...