In 1976, Congress terminated this long-standing grant and repealed R.S. 2477. However, Congress also officially recognized R.S. 2477 roads then in existence. Since 1976, the state has attempted on many occasions to resolve the question of which Utah roads were then in existence. These efforts have come to no avail.
Presently, it is the position of the federal government that, to prove the pre-1976 existence of an R.S. 2477 road, a judicial determination is required. Accordingly, the state has filed 21 lawsuits to prove the pre-1976 existence and, therefore, state title to the roads. It should be noted that courts have held that an R.S. 2477 road may be established by either the construction or maintenance of a road using public funds, or by the continuous public use of a road for a decade. "Continuous use" has been held to mean that the road was used whenever the public found the use convenient or necessary.
Using judicially recognized standards, the state has identified the number of claimed R.S. 2477 roads at approximately 12,000. The process of road review has included examination of historical aerial photographs, historical topographic maps, historical road maps, maintenance records, site visits, and the interviews of hundreds of witnesses. This process continues.
Road characteristics vary widely, from paved to two-track, but they are all indeed roads with evidence of historical, continuous use. Wilderness was not a factor considered in making road inclusion determinations. The vast majority of these roads were in continuous public use and, therefore, in state ownership, long before the 1964 passage of the Wilderness Act.
Now is the time to resolve these longstanding issues. The federal government has given the state no choice but to enlist the assistance of the court. Further delay will result in the loss or deterioration of evidence, most significantly the death or disability of the witnesses.
It is neither the intent nor object of these lawsuits to create or destroy anything. Rather, their sole purpose is to prove up congressionally granted title to these roads and, thereby, preserve and protect these historical roads for the continued use and enjoyment of all.
Utah's and its smaller communities' economies are dependent upon the continuing use of these roads and we cannot afford to just walk away.
John E. Swallow is chief deputy of the Utah Attorney General's Office civil division. Anthony L. Rampton is an assistant Utah attorney general and the state's lead litigation counsel for the R.S. 2477 lawsuit.