562 F.3d 1077 (10th Cir. 2009), 07-4207, Kane County Utah v. Salazar

Docket Nº:07-4207, 08-4014.
Citation:562 F.3d 1077
Party Name:KANE COUNTY UTAH, a Utah political subdivision; Kane County Board of Commissioners; Garfield County, a Utah political subdivision; Garfield County Board of Commissioners, Plaintiffs-Appellants, v. Ken SALAZAR, in his official capacity as Secretary of the Interior; United States Department of the Interior; Mike Pool, in his official capacity as Acti
Case Date:April 13, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

Page 1077

562 F.3d 1077 (10th Cir. 2009)

KANE COUNTY UTAH, a Utah political subdivision; Kane County Board of Commissioners; Garfield County, a Utah political subdivision; Garfield County Board of Commissioners, Plaintiffs-Appellants,

and

Kane County Water Conservancy District, a Utah Water Conservancy District, Plaintiff,

v.

Ken SALAZAR, in his official capacity as Secretary of the Interior; United States Department of the Interior; Mike Pool, in his official capacity as Acting Director of the Bureau of Land Management; Bureau of Land Management; Selma Sierra, in her official capacity as the Utah State Director of the Bureau of Land Management; Rene Berkhout, in her official capacity as manager of the Grand Staircase-Escalante National Monument, Defendants-Appellees,

National Trust of Historic Preservation; Sierra Club; Southern Utah Wilderness Alliance; The Wilderness Society, Defendants-Intervenors-Appellees,

and

Trout Unlimited, Amicus Curiae.

Nos. 07-4207, 08-4014.

United States Court of Appeals, Tenth Circuit.

April 13, 2009

Page 1078

Shawn T. Welch, (A. John Davis with him on the briefs), Holme, Roberts & Owen, LLP, Salt Lake City, UT, for Plaintiffs-Appellants.

David C. Shilton, (Ronald J. Tenpas, Assistant Attorney General; Thomas K. Snodgrass, Attorney, Environmental and Natural Resources Division; Aaron P. Avila, Attorney, Environmental and Natural Resources Division, with him on the brief), Department of Justice, Washington, D.C., for Defendants-Appellees.

Edward B. Zukoski, (James S. Angell, Earthjustice, Denver, CO,; Heidi McIntosh and Stephen H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT, with him on the brief), Earthjustice, Denver, CO, for Defendants-Intervenors-Appellees.

Drew Peternell, Trout Unlimited, filed an amicus brief is support of appellees.

Before HENRY, BRISCOE, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs Kane County, Utah, the Kane County Board of Commissioners, Garfield County, Utah, the Garfield County Board of Commissioners, and the Kane County Water Conservancy District filed suit against the Secretary of the Interior and other federal governmental officials alleging that a management plan adopted by defendants for overseeing the Grand Staircase-Escalante National Monument infringed upon plaintiffs' water rights and certain rights-of-way utilized by plaintiffs

Page 1079

for purposes of public highways. The district court dismissed plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Plaintiffs now appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Rights-of-way over public lands pursuant to R.S. 2477

" In 1866, Congress passed an open-ended grant of ‘ the right of way for the construction of highways over public lands, not reserved for public uses.’ " S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir.2005) (quoting Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (FLPMA), Pub.L. No. 94-579 § 706(a), 90 Stat. 2743). " This statute, commonly called ‘ R. S. 2477,’ remained in effect for 110 years, and most of the transportation routes of the West were established under its authority." Id. " In 1976, however, Congress abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation." Id. at 741. " As part of that statutory sea change, Congress repealed R.S. 2477." Id. " There could be no new R.S. 2477 rights of way after 1976." Id. " But even as Congress repealed R.S. 2477, it specified that any ‘ valid’ R.S. 2477 rights of way ‘ existing on the date of approval of th[e] [FLPMA]’ (October 21, 1976) would continue in effect." Id. (quoting Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976)). Congress also directed that " [a]ll actions [taken] by the Secretary concerned under this Act [the FLPMA] shall be subject to valid existing rights." 43 U.S.C. § 1701 historical note (h).

Creation of the Monument

On September 18, 1996, President Clinton created the Grand Staircase-Escalante National Monument (Monument), located in Kane and Garfield Counties, Utah, to protect a " spectacular array of scientific and historic resources." 61 Fed.Reg. 50,223 (Sept. 18, 1996). In doing so, President Clinton proclaimed that " [a]ll Federal lands and interests in lands within the boundaries of th[e] monument [we]re [t]hereby appropriated and withdrawn from entry, location, selection, sale, leasing, or other disposition under the public land laws," and that " [l]ands and interests in land not owned by the United States s[hould] be reserved as a part of the monument upon acquisition of title thereto by the United States." Id. at 50,225. The proclamation did not, however, " reserve water as a matter of Federal law." Id. As part of the proclamation, President Clinton directed the Secretary of the Interior (the Secretary) to " prepare, within 3 years ..., a management plan for" the Monument. Id. Lastly, the proclamation provided that the Secretary would " manage the [M]onument through the Bureau of Land Management" (BLM). Id.

The management plan for the Monument

On November 15, 1999, the Secretary issued a final management plan (the Plan) and record of decision (ROD) for the Monument. 65 Fed.Reg. 10,819 (Feb. 29, 2000).

The ROD, which was published as part of the Plan, stated, in pertinent part:

[D]iscussion of R.S. 2477 assertions in footnote 1 of Chapter 2 of the Approved Plan has also been clarified to emphasize that nothing in the Plan extinguishes any valid existing rights-of-way in Grand Staircase-Escalante National Monument. Nothing in this Plan alters in any way any legal rights the Counties of

Page 1080

Garfield and Kane or the State of Utah has to assert and protect R.S. 2477 rights, and to challenge in Federal court, or any other appropriate venue, any BLM road closures that they believe are inconsistent with their rights.

App. at 20 (citing ROD, p. ix).

The Plan, in a section entitled Transportation and Access, stated:

TRAN-1 This Plan designates the route system for the Monument. The transportation map (Map 2, in the back of the document) shows routes that will be open for public use and those available for administrative use only (see the Administrative Routes and Authorized Users section for related decisions). Any route not shown on Map 2 is considered closed upon approval of this Plan, subject to valid existing rights. [fn.1]

FN [[Footnote 1] Some government entities may have a valid existing right to an access route under Revised Statutes (R.S.) 2477, Act of June 26, 1866, ch. 262, § 8, 14 Stat. 251, which granted " [the right-of-way for the construction of highways over public lands, not reserved for public uses.]" As described in the United States Department of Interior, Report to Congress on R.S. 2477 (June 1993), claims of rights-of-ways under R.S. 2477 are contentious and complicated issues, which have resulted in extensive litigation. See e.g., Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988); Southern Utah Wilderness Alliance v. Bureau of Land Management, Consolidated Case No. 2:96-CV-836-S (D. Utah, filed Oct. 3, 1996, pending). It is unknown whether any R.S. 2477 claims would be asserted in the Monument which are inconsistent with the transportation decisions made in the Approved Plan or whether any of those R.S. 2477 claims would be determined to be valid. To the extent inconsistent claims are made, the validity of those claims would have to be determined. If claims are determined to be valid R.S. 2477 highways, the Approved Plan will respect those as valid existing rights. Otherwise, the transportation system described in the Approved Plan will be the one administered in the Monument. Nothing in this Plan extinguishes any valid existing right-of-way in the Grand Staircase-Escalante National Monument. Nothing in this Plan alters in any way any legal rights the Counties of Garfield and Kane or the State of Utah has to assert and protect R.S. 2477 rights, and to challenge in Federal court or other appropriate venue, any BLM road closures that they believe are inconsistent with their rights. ]

The specific routes shown open for public use are based on a variety of considerations including what is needed to protect Monument resources, implement the planning decisions, and provide for the transportation needs of surrounding communities. The basic philosophy in determining which routes will be open was to determine which routes access some destinations (e.g., scenic overlook, popular camping site, heavily used thoroughfare) and present no significant threat to Monument resources. These routes will be open for public use. Routes that were not considered necessary or desirable (for resource protection purposes) will not be kept open for motorized and mechanized public access. In the event that Title 5 rights-of-way are issued or in the event of legal decisions on RS 2477 assertions, routes will be governed under the terms of those actions.

Grand Staircase-Escalante National Monument Management Plan at 46, available at http:// www. blm. gov/ut/st/en/fo/grand_staircase-escalante/planning/ monument_management.html (last visited on January 20, 2009) (emphasis added).1

Under the Transportation and Access provisions, the Plan also provided:

Road Restoration Strategy

TRAN-17 The BLM's strategy for restoring routes that will no longer be available for public or administrative

Page 1081

motorized use in the Monument will be phased over a period of years. This will be accomplished as rapidly as funding permits. It is anticipated that this could take as many as ten years. Each year, a percentage of the Monument's base budget will be used to restore...

To continue reading

FREE SIGN UP