Public Lands

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Kane County Commission

January 13, 2011


Tenth Circuit Court of Appeals Rules For Kane County In Road Case

Wilderness Groups Lack Standing To Sue


In a long-anticipated decision, the Tenth Circuit Court of Appeals ruled yesterday that wilderness advocacy groups lack standing to sue Kane County over public highway rights-of-way granted to the county by the U.S. Congress under Revised Statute 2477.  The “en banc” (full court) decision vacated a lower court’s decision that ejected Kane County from its historic role in regulating highways crossing lands managed by the Bureau of Land Management (BLM) and the National Park Service (NPS).  The decision stated, “We VACATE the district court’s summary judgment in favor of [The Wilderness Society and Southern Utah Wilderness Alliance] and REMAND with instructions to dismiss the action.”

The Tenth Circuit decision held that groups such as The Wilderness Society (TWS) and the Southern Utah Wilderness Alliance (SUWA) lack property rights in the dispute and therefore did not have standing to bring the federal lawsuit.  The Tenth Circuit held that the matter involved a property dispute between two landowners, Kane County and the federal government, and that TWS and SUWA lack any property rights of their own to support standing to sue the county.  This ruling is consistent with the Tenth Circuit’s exclusion of wilderness advocacy groups in the county’s current quiet title litigation.

The Tenth Circuit’s dismissal also removes the lower court’s ruling that Kane County lacks R.S. 2477 road jurisdiction unless and until the county secures title through court adjudication.  The lower court’s ruling had ejected the county from regulating roads crossing federally managed lands because without R.S. 2477 jurisdiction, the county lacked authority to operate its historic highways. 


Serious public safety conditions developed on the roads where they cross federally managed lands, and the federal government refused to maintain roads it claims to own.  The public safety hazards led to the county requesting an expedited motion for summary judgment in its current quiet title litigation.  In its brief to the district court, the federal government finally acknowledged the county’s R.S. 2477 jurisdiction over five of the roads in litigation. 


Because the Tenth Circuit decision dismisses the lower court’s action, the county can once again maintain the public’s R.S. 2477 roads and will immediately correct the numerous hazards along the roads.  This is necessary for the safety of the travelling public.  The county will also request that federal agencies engage in conciliation and coordination in an effort to resolve remaining issues involving the validity and scope of county roads across federally managed lands.


The road controversy was created in 1997 when Secretary of Interior Bruce Babbitt directed the BLM and NPS to ignore historic highway rights congressionally granted to local and state government—the critical rights-of-way for the public’s highways.  Federal agencies attempted to create a new paradigm wherein the federal government would administer all roads and would unilaterally decide whether they would be open, closed or restricted by federal planning decisions, irrespective of R.S. 2477 rights, and yet the counties would be expected to spend local and state funding to maintain federal roads.  The designation of the Grand Staircase-Escalante National Monument led to the first take over of county roads in Kane and Garfield Counties under the Monument plan in 1999.  Both counties have opposed the federal takeover of the critical public roads since that time. 


Counties in Utah and throughout the West are opposing the federal takeover of their roads because there is no legal basis for this action, and it is wholly inconsistent with long-standing federal law, regulations and policies.  Local highway jurisdiction has traditionally been federally accepted without formal action or litigation, and the hazardous state of disrepair on many Kane County roads reveals that the federal government is incapable of managing local transportation systems.  The new federal requirement that all local highway rights must be adjudicated creates a tremendous cost burden, amounting to hundreds of thousands of dollars to counties and millions of dollars to states – costs that are unnecessary.


It is the county’s hope that the en banc decision will result in a reevaluation of current federal policy denying the existence of any R.S. 2477 rights and may provide an opportunity for a new level of coordination regarding the operation and management of historical public highways across federally managed lands.