Background
In the fall of 1996, the BLM sued three Utah counties, Garfield,
Kane and San Juan, to try to stop
them from doing traditional road maintenance activities on RS 2477
roads over BLM-managed
land. It was widely recognized that these suits were filed by the
government to try to establish a
precedent which would reduce the scope of RS 2477 rights.
The three cases were subsequently consolidated before Federal
District Judge Sam. In October,
1997 the first preliminary ruling was issued in these cases, a
"Memorandum Decision Addressing
the United State's Motion For Partial Summary Judgement and Motion to
Strike Kane County's
Fourth Defense," (Consolidated Case No. 2 : 96-CV-0836-S) While this
largely centered on pre-trial maneuvering, in rejecting the motion of
the federal government the judge made a number of
points which are very supportive of the counties' position on RS 2477
rights-of-way and the
associated rights.
Excerpts from the Decision
"Although RS 2477 was repealed by FLPMA, RS 2477 rights-of-way in
existence on the date of
FLPMA's passage, October 21, 1976 are protected. Therefore, RS 2477
rights-of-way are
preserved as they existed in 1976." Pages 9-10.
"Because RS 2477 rights-of-way were self-executing, needed no
ratification from the federal
government, and are preserved as they existed in 1976, it appears to
the court that Kane County
need not petition the BLM before exercising its RS 2477 rights. While
the BLM may have
authority to inquire into the validity of any such right-of-way after
it is asserted, the United States
fails to cite persuasive authority supporting the position that after
the enactment of FLPMA,
before RS 2477 rights may be recognized 'there must be a determination
that the rights were
established during the period in which the statute was in effect.'"
Page 10.
"...the quoted language does not suggest to the court that the BLM
must first recognize the
validity of an RS 2477 right-of-way before rights in the holder arise."
Page 11.
"The court, however, does not read (Sierra Club v.) Hodel or
the other authority as requiring
Kane County to obtain BLM authorization before undertaking "any road
work which would
expand or modify an existing intrusion on public lands." The United
States has failed to cite any
specific statute or regulation which persuades the court otherwise."
Page 17.
"Case authority suggests that as long as Kane County stays within its right-of-way, the scope of which is to be defined using Utah law, BLM authorization is not required." Page 19.
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