This is an archived article that was published on sltrib.com in 2007, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Nearly two years ago, a federal appeals court changed the rules of the road for determining whether county claims to old rights of way across federal land are valid. Six months later, outgoing Interior Secretary Gale Norton issued new guidelines for federal land managers to implement that decision.
But Norton gave away the store. For example, she instructed that where a county that claims a right of way wants to improve the road or expand its use, the federal land managers could issue a nonbinding determination of whether the claim is valid and whether the proposed improvements are reasonable and necessary.
That language is consistent with the court ruling. But ownership of these rights of way can often affect how the beautiful wild lands of Utah are managed and whether they will be eligible for wilderness designation. With that at stake, we do not believe that the Interior Department should be free to act as though the claims have been settled when a court has not yet resolved that issue.
Ah, there's the rub. No one can claim with certainty who owns many rights of way across federal lands in Utah because of an obscure federal law known as Revised Statute 2477. Congress passed RS2477 in 1866, granting "right of way for the construction of public highways over public lands not reserved for public uses." Congress repealed RS2477 in 1976, but grandfathered the previous rights of way.
Trouble is, no one documented many of the claims for the 110 years the law was in effect, and counties, the federal government and various user groups are battling in the courts over what constitutes a legal claim.
A federal appeals court ruled in 2005 that only courts, not the Bureau of Land Management, can decide whether county claims are valid, and that the Utah legal standard of 10 years of continuous use (prior to 1976) should decide the matter in this state.
We don't believe that "nonbinding determinations" by the BLM or anyone else should give claimants rights that haven't been settled by a court. Neither does Congressman Mark Udall, a Colorado Democrat who has proposed a federal budget amendment that would prohibit the Interior Department from using its funds to issue such determinations under Norton's guidelines.