Moffat County officials applaud court for road decision |

Moffat County officials applaud court for road decision

Brandon Johnson

A decision by the 10th Circuit Court of Appeals has muddied the waters of an ongoing road dispute, environmentalists say, but Moffat County officials argue the Sept. 8 ruling has cleared them.

The 10th Circuit covers much of the West, including Colorado, Utah and Wyoming.

In deciding a case where three Utah counties used Revised Statute 2477 to justify grading dirt paths in a national monument, the court said a right-of-way does not require mechanical construction to be a road.

The court did not, however, determine what constitutes a road under R.S. 2477.

R.S. 2477 is a Civil War-era law that governments can use to claim rights-of-way on public lands. The law has been used to call livestock trails and single-track paths roads.

Moffat County jumped to the center of the R.S. 2477 debate in 2003 when commissioners used the 1866 law to claim 2,000 miles of rights-of-way on public lands, including Browns Park National Wildlife Refuge, Dinosaur National Monument and Bureau of Land Management wilderness study areas.

Since Moffat County made the R.S. 2477 claims in 2003, county officials have rejected arguments that mechanical construction is required before a right-of-way can be claimed.

Natural Resources Director Jeff Comstock said he opposes a mechanical construction requirement because some of the county’s R.S. 2477 claims were “built by mere use.”

But, Comstock said, the vast majority of the county’s claims have at least some evidence of mechanical construction, such as grading.

The county’s R.S. 2477 claims are important, Comstock said, because they keep public lands open for public access.

Comstock said he is still investigating the 10th Circuit’s 112-page opinion, but it appears to be a victory for Moffat County’s position.

“We know it will change public lands policy across the west and we’re trying to understand in what ways,” Comstock said.

Environmentalists say the court decision was “clear as mud.”

Ted Zukoski, an attorney with Earthjustice, said by declining to set a standard for road construction, the 10th Circuit left the matter up to future courts. Earthjustice is a non-profit law firm dedicated to protecting the environment.

“It will allow these things to be fought out on a route-by-route, case-by-case basis,” Zukoski said.

Zukoski said it is likely that the 10th Circuit’s decision will be appealed, possibly to the U.S. Supreme Court.

Reed Morris with the Colorado Wilderness network said the effect of the decision is still largely unclear.

Morris said he was happy with one aspect of the decision that said the burden of proof for asserting a road rests with the counties, but the decision didn’t say what proof is required.

Brandon Johansson can be reached at 824-7031, ext. 213, or

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