This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Kane County officials seem determined to do things the hard way.
They want ownership of 49 roads on federal land, so, instead of making their case for each road, as federal courts have said is the proper way to meet the provisions of the law, Kane filed suit last week against the federal government in U.S. District Court in Salt Lake City.
It is somewhat puzzling that Kane County would sue just months after the Interior Department agreed to cede control of five roads to the county without the county having to resort to legal action. Those five include the route from U.S. Highway 89 to the Coral Pink Sand Dunes State Park.
But the county wants more. Forty-nine more, including an unpaved route popular with tourists that leads across Grand Staircase-Escalante National Monument from State Highway 12 to Hole-in-the-Rock, the site of a Mormon pioneer trek down a sheer cliff face.
County officials say the road needs to be maintained and they want to do the job, but not as long as the road remains under federal control. Federal agencies say the county is welcome to maintain the road, but not to widen it or increase access from the road to areas the feds are trying to protect. Both sides have valid arguments, but courts have ruled that counties must meet specific conditions in order to claim road ownership.
The latest legal odyssey started in 2003 when Kane County took down 31 Bureau of Land Management "closed" signs and replaced them with markers inviting all-terrain-vehicle users to have their way with the Grand Staircase-Escalante. A federal judge's 2005 ruling made state law the standard for deciding who has right of way on federal land. State law dictates that every road claimed under R.S. 2477, the 1872 mining law that gave local governments the right to build roads over federal lands, must be proven in court.
A 1976 repeal of R.S. 2477 contained a grandfather clause protecting "existing rights of way." Utah law requires proof of "continuous use and maintenance" for 10 years prior to 1976 on each road claim.
In 2008, a Utah judge rightly ordered Kane and Garfield counties to stop using a state defense fund to cover their federal court costs. At that time, the two counties had spent more than $174,000 in taxpayer money on right-of-way cases. Now county funds are paying the tab.
But county residents shouldn't be on the hook for continual lawsuits and appeals, especially when the federal government has shown its willingness to consider the county's claims and turn over roads when it deems those claims valid.