A decision by a Utah judge could act as "a stop sign" for Moffat County right-of-way claims, environmentalists say.
Last week, U.S. District Judge Tena Campbell rejected three Utah counties' ownership claims to dirt tracks across Grand Staircase-Escalante National Monument and wildlands near Canyonlands National Park.
San Juan, Garfield and Kane Counties asserted that Revised Statute 2477, a Civil War-ear law that grants right-of-way on highways constructed on public land, provided them ownership of the dirt tracks.
Campbell upheld an earlier 2001 decision that stated RS 2477 claims only apply to highways that show evidence of construction and do not apply to trails formed by "haphazard, unintentional or incomplete action. For example, the mere passage of vehicles across land, in the absence of any other evidence, is not sufficient to meet the construction criteria of RS 2477."
The Utah Attorney General intends to appeal the ruling in the 10th Circuit Court, said Paul Murphy, head of media relations at the attorney general office.
When appealed, the case will be in the same judicial circuit as Moffat County, and any decision made there could act as a precedent for Moffat County's RS 2477 claims, said Ted Zukoski, a lawyer with Earthjustice, a non-profit law firm dedicated to protecting the environment. The decision is the only modern case to delve into the standards for claiming an RS 2477 right, he said.
"This definitely throws a yellow caution flag if not a stop sign in front of folks using RS 2477 to put roads on national parks," Zukoski said.
In January 2003, the Moffat County Board of Commissioners drafted a resolution that stated the term highway includes "pedestrian trails, horse paths, livestock trails, wagon roads, jeep trails, logging roads, homestead roads, mine-to-market roads, alleys, tunnels, bridges, dirt, gravel or paved roads, and all other ways and their attendant access for maintenance, reconstruction and construction."
Based on that resolution, the county identified more than 2,000 miles of right-of-way routes within the county borders, including 240 miles of right-of-way inside Dinosaur National Monument, 53 miles within Browns Park National Wildlife Refuge, and 117 miles within Bureau of Land Management study areas.
The presence of roads would eliminate certain public lands such as Vermillion Basin from consideration for wilderness designations, since wilderness areas must by definition be roadless.
"Moffat County is certainly at the extreme leading edge pushing the theory that anything walked on is a constructed highway. As far as claiming hundreds of miles of trails as highways, I don't think anyone else in Colorado is doing that" Zukoski said.
No one has challenged Moffat County's resolution, because the county has yet to assert any ownership claims based on the resolution, said Reed Morris of the Colorado Wilderness Network.
But the county has been "ground-truthing" alleged RS 2477 routes to verify their proposed claims. Natural Resources Director Jeff Comstock has said he spends about 5 percent of his time working on RS 2477 issues. Comstock was traveling to Reno to receive a national fire plan award and could not be reached for comment.
The counties in question in the lawsuit had re-graded and re-aligned the alleged right-of-ways within Escalante National Monument. Judge Campbell said that offense amounted to illegal trespass on public lands.
Moffat County Commissioner Marianna Raftopoulos said she wasn't familiar with the Utah case. However, she said the news would not change the county's strategy.
One major difference she cited between Moffat County and the Utah counties was that Moffat County has no intention of altering any of the roads it has claimed.
"No one is changing the character of any of the roads," Raftopoulos said.
Rob Gebhart can be reached at 824-7031 or by e-mail at firstname.lastname@example.org.