So. Utah Wilderness v. Bureau of Land Management, No. 04-4071.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: McConnell
• Citation: 425 F.3d 735
• Parties: SOUTHERN UTAH WILDERNESS ALLIANCE, a Utah non-profit corporation, and Sierra Club, a non-profit corporation, Plaintiffs-Appellees, v. BUREAU OF LAND MANAGEMENT, Defendant-Appellee, and San Juan County, Utah; Tyler Lewis, in his official capacity as San Juan County Commissioner; Kane County, Utah; and Garfield County, Utah, Defendants-Appellants. Norman Carroll, in his official capacity as Kane County Commissioner; Joe Judd, in his official capacity as Kane County Commissioner; Stephen Crosby, in his official capacity as Kane County Commissioner; Louise Liston, in her official capacity as Garfield County Commissioner; D. Maloy Dodds, in his official capacity as Garfield County Commissioner; Clare M. Ramsay, in her official capacity as Garfield County Commissioner, Defendants. Natural Resources Defense Council, National Parks Conservation Association; The Wilderness Society; Alaska Center for the Environment; Alaska Wilderness League; Arizona Wilderness Coalition; California Wilderness Coalition; Colorado Environmental Coalition; Colorado Mountain Club; Grand Canyon Trust; Greater Yellowstone Coalition; Idaho Conservation League; National Wildlife Federation; National Wildlife Refuge Association; New Mexico Wilderness Alliance; Northern Alaska Environmental Center; San Juan Citizens Coalition; Southeast Alaska Conservation Council; Wyoming Outdoor Council; Property Owners for Sensible Roads Policy; Jana Smith; Ron Smith; States of Utah, Idaho, and Wyoming, Amici Curiae.
• Docket Number: No. 04-4073.,No. 04-4071.
• Decision Date: 12 October 2005

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425 F.3d 735 SOUTHERN UTAH WILDERNESS ALLIANCE, a Utah non-profit corporation, and Sierra Club, a non-profit corporation, Plaintiffs-Appellees,
v.
BUREAU OF LAND MANAGEMENT, Defendant-Appellee, and
San Juan County, Utah; Tyler Lewis, in his official capacity as San Juan County Commissioner; Kane County, Utah; and Garfield County, Utah, Defendants-Appellants.
Norman Carroll, in his official capacity as Kane County Commissioner; Joe Judd, in his official capacity as Kane County Commissioner; Stephen Crosby, in his official capacity as Kane County Commissioner; Louise Liston, in her official capacity as Garfield County Commissioner; D. Maloy Dodds, in his official capacity as Garfield County Commissioner; Clare M. Ramsay, in her official capacity as Garfield County Commissioner, Defendants.
Natural Resources Defense Council, National Parks Conservation Association; The Wilderness Society; Alaska Center for the Environment; Alaska Wilderness League; Arizona Wilderness Coalition; California Wilderness Coalition; Colorado Environmental Coalition; Colorado Mountain Club; Grand Canyon Trust; Greater Yellowstone Coalition; Idaho Conservation League; National Wildlife Federation; National Wildlife Refuge Association; New Mexico Wilderness Alliance; Northern Alaska Environmental Center; San Juan Citizens Coalition; Southeast Alaska Conservation Council; Wyoming Outdoor Council; Property Owners for Sensible Roads Policy; Jana Smith; Ron Smith; States of Utah, Idaho, and Wyoming, Amici Curiae. No. 04-4071. No. 04-4073. United States Court of Appeals, Tenth Circuit. September 8, 2005. As Amended October 12, 2005.

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Shawn T. Welch (Robert S. Thompson, III, with him on the briefs), Pruitt Gushee, Salt Lake City, UT, for Defendants-Appellants San Juan County and San Juan County Commissioner Tyler Lewis.

Ralph L. Finlayson, Assistant Attorney General (Mark L. Shurtleff, Attorney General,

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with him on the briefs), Salt Lake City, UT, for Defendants-Appellants Kane and Garfield Counties.

Jerome L. Epstein, Jenner & Block LLP, Washington, D.C. (Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT, Edward B. Zukoski, Earthjustice, Denver, CO, and William H. Hohengarten, Jenner & Block LLP, Washington, D.C., with him on the brief), for Plaintiffs-Appellees Southern Utah Wilderness Alliance and Sierra Club.

Todd S. Aagaard, Attorney, Appellate Section, Environment & Natural Resources Division, Department of Justice, Washington, D.C. (Thomas L. Sansonetti, Assistant Attorney General, M. Alice Thurston, Attorney, Appellate Section, Environment & Natural Resources Division, Department of Justice, Washington, D.C., Paul M. Warner, United States Attorney, Salt Lake City, UT, and Daniel D. Price, Assistant United States Attorney, Salt Lake City, UT, with him on the brief), for Defendant-Appellee Bureau of Land Management.

Mark L. Shurtleff, Utah Attorney General, and J. Mark Ward, Assistant Attorney General, Salt Lake City, UT; Steven W. Strack, Deputy Idaho Attorney General, Boise, ID; and Patrick J. Crank, Wyoming Attorney General, Cheyenne, WY, filed an amici curiae brief for the states of Utah, Idaho, and Wyoming, in support of Appellants San Juan, Kane, and Garfield Counties.

Michael S. Freeman, Faegre & Benson LLP, Denver, CO, filed an amici curiae brief for Property Owners for Sensible Roads Policy and Jana and Ron Smith, in support of Appellees Southern Utah Wilderness Alliance, Sierra Club, and the Bureau of Land Management.

Rebecca L. Bernard, Trustees for Alaska, Anchorage, AK, and Louis R. Cohen, James R. Wrathall, and Brian M. Boynton, Wilmer, Cutler, Pickering, Hale & Dorn LLP, Washington, D.C., filed an amici curiae brief for Natural Resources Defense Council, National Parks Conservation Association, The Wilderness Society, Alaska Center for the Environment, Alaska Wilderness League, Arizona Wilderness Coalition, California Wilderness Coalition, Colorado Environmental Coalition, Colorado Mountain Club, Grand Canyon Trust, Greater Yellowstone Coalition, Idaho Conservation League, National Wildlife Federation, National Wildlife Refugee Association, New Mexico Wilderness Alliance, Northern Alaska Environmental Center, San Juan Citizens Coalition, Southeast Alaska Conservation Council, and Wyoming Outdoor Council, in support of Plaintiff-Appellees.

Before HENRY, HARTZ, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

This case involves one of the more contentious land use issues in the West: the legal status of claims by local governments to rights of way for the construction of highways across federal lands managed by the Bureau of Land Management (BLM). 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." 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. During that time congressional policy promoted the development of the unreserved public lands and their passage into private productive hands; R.S.

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2477 rights of way were an integral part of the congressional pro-development lands policy.

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. See FLPMA, 43 U.S.C. § 1701 et seq. As part of that statutory sea change, Congress repealed R.S. 2477. There could be no new R.S. 2477 rights of way after 1976. 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 this Act" (October 21, 1976) would continue in effect. Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976). The statute thus had the effect of "freezing" R.S. 2477 rights as they were in 1976. Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir.1988), overruled on other grounds by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 971 (10th Cir.1992) (en banc).

The difficulty is in knowing what that means. Unlike any other federal land statute of which we are aware, the establishment of R.S. 2477 rights of way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested. As the Supreme Court of Utah noted 75 years ago, R.S. 2477 "`was a standing offer of a free right of way over the public domain,'" and the grant may be accepted "without formal action by public authorities." Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1929), (quoting Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901)). In its Report to Congress on R.S. 2477: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands 1 (June 1993), the Department of the Interior explained that R.S. 2477 highways "were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal land under this authority."

To make matters more difficult, parties rarely had an incentive to raise or resolve potential R.S. 2477 issues while the statute was in effect, unless the underlying land had been patented to a private party. If someone wished to traverse unappropriated public land, he could do so, with or without an R.S. 2477 right of way, and given the federal government's pre-1976 policy of opening and developing the public lands, federal land managers generally had no reason to question use of the land for travel. Roads were deemed a good thing. Typical was the comment by the great nineteenth-century Michigan jurist, Thomas Cooley, that "[s]uch roads facilitate the settlement of the country, and benefit the neighborhood, and in both particulars they further a general policy of the federal government. But they also tend to increase the value of the public lands, and for this reason are favored." Flint & P.M. Ry. Co. v. Gordon, 41 Mich. 420, 2 N.W. 648, 653 (1879). Thus, all pre-1976 litigated cases involving contested R.S. 2477 claims (and there are dozens) were between private landowners who had obtained title to previously-public land and would-be road users who defended the right to cross private land on what they alleged to be R.S. 2477 rights of way.

Now that federal land policy has shifted to retention and conservation, public roads and rights of way in remote areas appear in a different light. Some roads and other rights of way are undoubtedly necessary, but private landowners express the fear

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that expansive R.S. 2477 definitions will undermine their private property rights by allowing strangers to drive vehicles across their ranches and homesteads. Conservationists and federal land managers worry that vehicle use in inappropriate locations can permanently scar the land, destroy solitude, impair wilderness, endanger archeological and natural features, and generally make it difficult or impossible for land managers to carry out their statutory duties to protect the lands from "unnecessary or undue degradation." FLPMA § 302(b), 43 U.S.C. § 1732(b). They argue that too loose an interpretation of R.S. 2477 will conjure into existence rights of way where none existed before, turning every path, vehicle track, or dry wash in southern Utah into a potential route for cars, jeeps, or off-road vehicles. For...