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Judge axes counties’ road suit

Also denied is state’s motion to intervene in SUWA vs. BLM

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A U.S. District Court judge may have slammed the door on state and county claims to rural dirt roads across federal lands in San Juan, Garfield and Kane counties. But the door is not yet locked.

Judge Tena Campbell on Friday dismissed a countersuit filed by the three Utah counties against the U.S. government, ruling that the counties had failed to adequately demonstrate "when, how and under what circumstances the (disputed) road segments were created or maintained."

In all, the judge dismissed the counties' claims made under six different legal arguments.

The judge also denied the state's motion to intervene in the 1996 lawsuit that pits the Southern Utah Wilderness Alliance against the Bureau of Land Management. SUWA has sued the BLM for failing to maintain the wilderness values of certain areas in southern Utah, and the BLM subsequently filed a countersuit against the counties for trespassing on federal lands when they maintained the dirt roads.

SUWA attorney Heidi McIntosh, who called the judge's ruling "huge," said the decision should serve as a wake-up call to state legislators who have authorized state litigation on the road issue.

"This opinion really undercuts the necessity for spending that money," she said. "These really are county claims, and the state has no interest in spending taxpayer dollars to prop them up."

At issue are thousands of miles of dirt roads and trails that crisscross on federal lands in virtually all of rural Utah. The counties have maintained many of these roads, but some of them are little more than indistinct two-tracks and cattle trails. The counties claim ownership of the rights-of-way under a 19th century law called RS2477.

The federal government alleges these roads and trails were never formally constructed roads and therefore do not qualify as RS2477 rights-of-way and therefore do not belong to the counties.

The state recently announced it has filed a formal notice of intent to sue the Department of Interior and the Department of Agriculture to resolve the long-standing road dispute.

Assistant Utah Attorney General Stephen Boyden said Campbell's ruling — made on a state motion filed four years ago — has no real impact on the state's pending lawsuit. The fact she refused the state permission to intervene does not address the merits of the state's legal position, he said.

"In the meantime, the counties have vigorously represented the interests of the state," he said.

The state sought to intervene in the matter, because many of the dirt roads lead to state school trust lands. If the federal government were to close the roads, access would be denied to the state lands, and they would become worthless.

Of more significance, McIntosh said, is the judge's ruling that counties have not adequately demonstrated the roads are indeed legitimate roads that have been maintained or lead to any particular destination.

Campbell's ruling allows the counties to again file a motion for "quiet title" to the roads if they can produce the documentation they could not provide in court prior to her ruling.

Mark Walsh with the Utah Association of Counties, said all Utah counties are now in the process of gathering the documentation Campbell wants.

"I would see us coming back with documentation on each of those roads and attempting to quiet title them," Walsh said. "That is what we are doing right now, taking each of these roads and documenting each of them individually and specifically."

Caught in the middle of the legal wrangling, McIntosh said, are potential Utah wilderness areas that are being lost.

"The purpose of the lawsuit is to protect Utah's last remaining areas that qualify as wilderness," she said. "We are trying to fend off bogus rights-of-way claims for two tracks and hiking trails and cow paths that the counties claim — claims that are nothing more than an effort to defeat wilderness."

"The counties have legitimate transportation needs, but these (disputed roads) are not the backbone of the counties' transportation system," she said. "There can be a balance of access and preservation."

E-mail: spang@desnews.com