Daily Development for Wednesday, November 16, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ROAD CONSTRUCTION, PUBLIC LANDS, EASEMENTS:  Counties must alert administrative agencies before undertaking anything but routine maintenance of roads on public land. 

Southern Utah Wilderness Alliance v. Bureau of Land Management, 2005 WL 2160126 (10th Cir.(Utah)).

The case presents some extensive background that must be summarized.  Before 1976, a statute known as R.S. 2477 had been in place for more than 100 years.  R.S. 2477 encouraged local governments to build roads on public land, with a grant by the federal government of “the right of way for construction of highways over public lands, not reserved for public uses.”  In 1976, Congress froze this right.  Essentially, the new law granted no new rights of way, but allowed local governments to maintain rights of way in existence in 1976.  Interpreting the rights created under R.S. 2477 has proved problematic, because the law did not provide guidance about the meaning of “right of way,” and local governments, over the course of the statute’s life, often failed to formally document the rights of way supposedly established pursuant to the statute. 

This case arose when three counties in Utah sent workers onto Bureau of Land Management land to grade sixteen roads.  None of the roads had been graded previously, but some of them showed signs of previous construction or maintenance activity.  Arguing that the roads were actually unimproved trails not amounting to rights of way under R.S. 2477, a nature conservancy group sued the BLM to stop the grading, and the BLM in turn sued the counties.  The counties claimed the roads were valid R.S. 2477 rights of way.  In the trial court, the court decided the BLM should determine whether the roads were rights of way under the statute, or something less.  After a BLM investigation, the BLM decided that the counties lacked valid rights of way for 15 of the 16 “roads.”  The trial court then affirmed the BLM’s decision in its entirety. 

The appellate court, after some lengthy procedural analysis dealing with whether the trial court should have reviewed the BLM’s decision de novo, remanded the case for the court to determine whether the roads were in fact rights of way established under R.S. 2477, and the appellate court provided substantial guidance regarding the standards the trial court should use in its determination. 

Reporter’s Comment:  Perhaps the most important point of the decision lies in the directive that counties proposing to work on roads over federal lands should check with the agency in charge (the BLM or National Forest Service) before performing any work beyond routine maintenance.  Undocumented roads and trails crisscross the nation, particularly in the West.  Whether the public has access to those paths is proving a very contentious issue, claimed by both sides in fights over public and private property rights, and preservation versus development. 

The Reporter for the case was Rebecca Fisher of the Denver Bar. 

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