Published: Tuesday, August 20, 2013

The groups yesterday announced a settlement designed to balance the protection of primitive lands in the Deep Creek Mountains wilderness study area with access for motorized vehicle users.

It marks the first negotiated settlement in Utah’s larger bid to obtain rights of way over more than 12,000 road segments crossing tens of thousands of miles of federal lands.

“This could be a model for settling other … lawsuits, as long as counties and the state come to the table with solid evidence to support historic public use of a route, and as long as the settlement offers protection for special areas under threat from [off-highway vehicles] and roads,” said Heidi McIntosh of Earthjustice, which represented the Sierra Club, Wilderness Society and Southern Utah Wilderness Alliance in the case.

Utah and Juab filed the lawsuit in federal district court in Salt Lake City in 2005 under an obscure 1866 mining law known as R.S. 2477.

Until its repeal in 1976, R.S. 2477 allowed homesteaders, miners and ranchers almost unrestricted rights to build roads and trails across federal lands. If the state or county can prove the roads were sufficiently used or maintained before 1976, R.S. 2477 rights of way can be retroactively granted.

In the Deep Creek case, three rights of way were granted to Juab, which agreed to maintain them for “responsible use” limited mostly to their current width, environmentalists said.

In return, the county said it would relinquish one R.S. 2477 claim and half of two others, impose off-highway vehicle restrictions and waive all future claims in the wilderness study area and in lands proposed for wilderness designation in House and Senate legislation from Rep. Rush Holt (D-N.J.) and Sen. Dick Durbin (D-Ill.) to designate more than 9 million acres of wilderness in Utah.

The settlement must be approved by U.S. District Judge Tena Campbell.

Utah Gov. Gary Herbert (R) said he is hopeful that the Juab settlement can be replicated in some of the other lawsuits filed in 2012 in 22 of Utah’s 29 counties.

The settlement requires BLM to unlock a gate on Granite Canyon Road and remove fallen trees and any other obstacles blocking access to Camp Ethel, Utah said. The state or county may repair the roads, but they are prohibited from paving, improving or widening them.

“This settlement is a great first step and we hope this will serve as a template on how to resolve other public road lawsuits involving similar types of road claims,” said Utah Attorney General John Swallow in a statement. “It also demonstrates that the state and counties will take preservation issues into account when resolving road claims.”

Juab Commission Chairman Chad Winn said the routes were once used to reach “beautiful camping areas and historic sites in our county.” The date for opening the roads has not been determined.

Stephen Bloch, SUWA’s legal director, was more circumspect, noting that the settlement is just one in what he has called a “tsunami of litigation” that threatens the state’s national parks, monuments and best remaining backcountry.

“This settlement is a positive development, but it shouldn’t be lost on anyone that the state of Utah has 29 other active lawsuits claiming more than 14,000 other dirt roads and trails — totaling more than 36,000 miles — as R.S. 2477 ‘highways,'” he said in a statement.

The settlement follows a federal district judge’s decision in March to award Utah’s Kane County rights of way over 12 of the 15 R.S. 2477 claims it had filed, including four that traverse the Grand Staircase-Escalante National Monument and one that enters a wilderness study area (Greenwire, March 25).

That case has been appealed by both Kane County and the Interior Department to the 10th U.S. Circuit Court of Appeals.

Without more settlements, Utah’s R.S. 2477 lawsuits could easily last decades and could dramatically change how federal lands in the state are managed.