Lands • State plans what could be costly legal tussle with feds.
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Utah has served notice that it will sue the U.S. Interior Department for control of nearly 19,000 roads crossing federally managed lands in the state.
The threatened lawsuits are collectively the latest and biggest to date in a legal barrage in which Utah is attempting to put dirt paths and disputed trails crossing Bureau of Land Management jurisdictions officially on the map and open for state or county maintenance.
It makes good on a promise that the governor's public-lands office made earlier this year to join counties that have made their own pitches for control of roads on federal lands.
"We will continue to use every tool available to us, including negotiation and lawsuits, to quickly and permanently get title to our roads," Gov. Gary Herbert said Wednesday in a prepared statement. "We are intent to defend our rights, and this filing will force the federal government to respond."
Whether the roads really are Utah's or its counties' will depend on proving their general public use before 1976, when Congress repealed the act that granted rights of way for roads that could help in development of the West.
Environmentalists view the legal strategy as a substitute for the anti-wilderness agenda, because many of the roads are of the most primitive, never-maintained class and cut across territory that otherwise could qualify as wilderness, new national monuments or for other protective designations.
"This is really an effort to use roads to defeat federal protection of public lands," said Heidi McIntosh, an attorney for the Southern Utah Wilderness Alliance. "Wilderness by definition has to be roadless."
Of 18,784 roads or road segments to be included in 22 separate lawsuits one for each affected county 16,594 are "Class D," a legal designation meaning they were never officially constructed or maintained, but were worn into one- or two-tracks by use.
Proving such roads were in common use before the mid-1970s can be difficult as San Juan County found in failing to win a dry creek route it had claimed in Canyonlands National Park. That case is on appeal to the 10th U.S. Circuit Court of Appeals, and McIntosh said it has cost the county and state about $1 million.
The newest threats will cost more, she said, requiring the state to track down old documents and witnesses for each of the thousands of roads.
The federal government requires six months' notice before such lawsuits may be filed, potentially giving time for negotiations.
The BLM's Utah office did not immediately respond to a request for comment.
The seven counties left out of the notice of intent to sue are those with little BLM land or related transportation issues: Salt Lake, Davis, Weber, Morgan, Cache, Summit and Wasatch.
State officials insist this is about transportation, not wilderness. The filings represent "the universe of roads" that counties want rights to, said John Harja, director of the governor's Public Lands Policy Coordination Office.
The list adds all remaining disputed roads to those identified in previous county lawsuits and others that the state filed on behalf of Garfield and Kane counties this year, targeting priority roads.
Harja said he doesn't foresee added costs. Already his office and the Attorney General's Office spend about $1.5 million a year coordinating road claims, he said.
"These are, once and for all, the complete set of claimed roads over BLM land," said Mark Ward, public lands counsel for the Utah Association of Counties. "This is something you've never seen before in other filings."
Counties are eager to resolve the issues over which they have been squabbling with the federal government for more than two decades, Ward said. But he hopes the filings will give the BLM time to launch negotiations that could settle many of the claims without a trial.
"We've come to the conclusion that to get the BLM's attention on this," Ward said, "we had to show them we're serious enough to put them all on the table and go to court."
What's it all about?
Utah's fight for routes across federal lands harks back to an 1866 law Revised Statute 2477 that granted automatic rights of way for roads across federal lands not otherwise protected or withdrawn for other uses. It was meant to encourage development of the West, but Congress repealed it in 1976, leaving the courts to sort out which disputed routes actually were in public use before that time.