Legal battle over Kane County roads leads to a new path forward without SUWA intervention

The “roads battle” in Kane County has been a long and strenuous process. This week, Kane County received a major victory in its battle over Revised Statute (RS) 2477 litigation. R.S. 2477 states that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted”. In this case, the state of Utah and Kane County assert title to certain roads that cross federal land. The claim of title to roads has been held up in court by certain wilderness advocate groups’ ability to intervene in that process.


On Monday, June 6, Judge Clark Waddoups in the United States District Court for the District of Utah ruled to deny Southern Utah Wilderness Alliance (SUWA) motion to intervene in litigation. SUWA, a conservation group, has argued that the state and counties are trying to seize control over the lands. With that argument, the right to intervene in litigation has cost the county a lot of time and money. The ruling states, “intervention as a right has serious effects. Courts have allowed one who cannot bring a claim or defense on its own to enter a suit and obtain a right to ‘conduct discovery, participate fully at trial, and pursue an appeal in the event of an adverse judgement’. Despite the importance of intervention law, one professor has accurately noted, ‘the law governing motions [to intervene] is a mess.’”


“It’s a huge step in the right direction,” says Kane County Commissioner Andy Gant. “It has been a costly and frustrating effort to protect our roads. With this ruling, we hope to move forward on the title of roads so we can mitigate safety concerns for continued access to our public lands. I’m very pleased with Judge Waddoups decision,” Gant added.


A representative from SUWA stated, “SUWA believes that Judge Waddoups’ decision is inconsistent with Tenth Circuit precedent and disagrees with its characterization of SUWA’s conduct. SUWA is considering its options for appeal.”


The 54-page document outlines the history of R.S. 2477 litigation as well as gives credit to former local leaders stating that because “Kane County filed its cases before the others, it is on a different path.”


In regard to SUWA’s motives to intervene in R.S. 2477 litigation, Judge Waddoups states, “SUWA has made clear that it is not trying to intervene merely to defend the United States title to the roads. Instead, SUWA’s focused interest in land protection is such that it desires for any right of way be closed to vehicular traffic … the permissive interveners’ present position to shut down every R.S. 2477 road to vehicular use shows a troubling disregard for the property rights of others.”


Waddoups recognizes that SUWA’s desire to shut down R.S. 2477 roads disregards the impact it would have on rural communities. He states, “If successful, SUWA’s action would have the practical effect of precluding those with physical limitations from enjoying the beauties of Kane County because they lack the stamina to hike into an area having no roads. Ironically, one could argue that roads help keep Kane County pristine. Roads keep various forms of transportation on a designated path so that the land adjoining them may remain undisturbed by vehicular traffic.”

The Judge also analyzed SUWA’s continual lack of respect for other people’s rights, stating, “This recent chain of events is indicative of how SUWA has litigated in these road cases. Whenever it is afforded any leeway, problems arise and SUWA continues to disregard the rights of others in pursuit of its own interests.”


Attorney Shawn Welch, who represents Kane County remarked, “The big thing here is that the judge recognized years of delay, abuse, and gamesmanship from SUWA; we are really pleased with the decision.”


This doesn’t mean the battle over county roads on public lands is over, only that the ruling won’t allow SUWA and other groups to intervene by using litigation methods. The case will continue to move forward with more review and hearings happening in the coming months.


A brief history will highlight why public road issues are such a hot-button topic and why it’s a very complicated issue. In 1886, Congress passed an open-ended grant of the “right of way for the construction of highways over public lands, not reserved for public uses.” Such highways are now commonly referred to as R.S. 2477 roads, and “most of the transportation routes of the West were established under R.S. 2477 authority.” Over a 110-year period, this mostly stayed in effect until the Federal Land Policy Management Act (FLPMA) of 1976. Congress changed its focus from construction to conservation but provided “that any valid R.S. 2477 rights-of-way existing would continue in effect.” From the decision it states, “The court acknowledges and takes judicial notice that Kane County was founded in 1864 while Utah was still a territory. It would be illogical to conclude that no R.S. 2477 roads were established between 1866 and 1976 in Kane County. Kane County therefore has a legitimate interest in protecting valid property rights it acquired during that time period. The debate is not about establishing new roads but proving who the owner is of roads that already exist.” In this case, the United States has a legitimate interest in protecting its ownership of property rights that were retained.


The ruling continued by stating, “Kane County is a hotbed for competing land interests. For every group that wants to preserve land, there is a competing group that wants the land open for development or recreation. Such competing interests cannot and do not inform the court’s decisions about who holds title to the property when that title arises under R.S. 2477. The specific issue is simply not open for public opinion or comment. Thus, the nature of the particular property dispute before the court informs whether SUWA has a right to participate in this action. SUWA got involved to fight on behalf of the public’s interest of the United States. The court ruling on Monday, said SUWA can no longer intervene.”


“Kane County faced the issue alone for years, relying on the efforts of dedicated staff and past commissioners,” says Commissioner Gant, who now coordinates the efforts with the state to combat overreach by conservation groups. “Now we’re backed by organizations like the Public Lands Policy Coordinating Office directed by Reg Johnson, the Constitutional Defense Council chaired by Lieutenant Governor Diedre Henderson and Assistant Attorney General Anthony Rampton who have helped make these amazing strides possible.” A coalition of these organizations has contracted over the majority of funding for the county’s litigation.


To read the judge’s full ruling, visit www.kane.utah.gov.


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