ST. GEORGE — Conservation groups are worried a federal land agency’s consideration of an application to “disclaim the United States’ interest” in a backcountry road in Washington County could set a precedent for public lands being handed over to local control.
Earlier this year, Washington County was asked to submit two roadways for consideration in a test case between the state and the Bureau of Land Management related to the ongoing and contested RS 2477 roadways issue.
Those backcountry roadways were the Antelope and Manganese Roads located on the eastern and western side of the county respectively.
The purpose of the test case is to find backcountry roads that cross through public lands where there’s little to no argument they are well-established roadways.
The Manganese Road is an approximately 10.2-mile-long gravel and graded road that extends from Gunlock Road west to the Motoqua Road. The majority of it crosses federal land managed by the BLM. The road is commonly used for grazing, ranching, hunting, wood gathering, prospecting, recreation and general public access in the local area, according to the BLM.
So-called RS 2477 roads became an issue in 2012 when Utah launched several lawsuits against the federal government. The lawsuits allege that federal agencies had illegally taken control of several thousand state and county roads and closed access to them. This has had a damaging impact on public access, area economies and also put motorists at risk, the state alleged.
Utah is citing an old mining law established in 1866 that states, “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
The law, RS 2477, was repealed in 1976 when Congress enacted the Federal Land Policy and Management Act.
Roads claims deemed valid in 1976 which had at least 10 years of continuous use prior to that were left in state and local control. However, what can be designated as an actual right of way of these disputed “roads” has been an ongoing issue.
The general wording of RS 2477 “has over the years been a source of disagreement and controversy,” Christian Venhuizen, public affairs specialist for the BLM’s Color Country District Office, said in an email to St. George News.
“Case law involving RS 2477 claims has been developing over the past 30+ years,” Venhuizen wrote.
The majority of the disputed roads are little more than wash bottoms, cow paths and two-track paths through the desert, according to the Southern Utah Wilderness Alliance. Referring to these as “hoax highways,” SUWA has recently expressed concern over the BLM considering Washington County’s application to take over the roadway.
The process by which the BLM is considering releasing its interest in the Manganese Road right of way is called a Recordable Disclaimer of Interest, or RDI. The process basically removes the BLM’s “cloud of title” to the right of way if the application is approved.
During a Washington County Commission meeting Tuesday, Deputy County Attorney Eric Clark said the RDI process was commonly used in Alaska in relation to the oil industry and is now being applied to the Manganese Road.
“It seems to be a logical fit on the roads we’re not going to fight over,” Clarke said.
The BLM agrees, Venhuizen wrote.
“After years of uncertainty and, in some cases protracted litigation, on how to consider and potentially resolve the state and counties’ many RS 2477 right of way claims, the BLM believes that the administrative RDI process is an appropriate means of addressing certain of those right of way claims,” Venhuizen said in the email.
SUWA isn’t so sure about that.
“We’re concerned that this is a short cut,” Michelle White, a SUWA staff attorney, told St. George News last week. “We’re worried that this will give more control (of public lands) to the state and that it will have a detrimental effect.”
SUWA would rather see the litigation move forward and decided in court, White said, adding that RS 2477 road litigation involving Kane County is set for court in early 2020.
The conservation group wants the courts to establish what constitutes a valid right of way, White said.
SUWA also believes the RDI process is not being used appropriately in this case, or that it’s use in this case is entirely valid under statute.
If the county’s application for the Manganese Road is approved, SUWA argues it will open the door for Utah to use it as a vehicle to grab control of protected public lands.
“If the state of Utah succeeds with this first disclaimer, it has thousands of similar claims blanketing Utah’s red rock country waiting in the wings,” according to SUWA’s website. “And make no mistake about it, if Utah secures title to these federal lands it has been outspoken about its intent to widen, improve and even pave these dirt paths and trails in an effort to take control of public lands and prevent wilderness protection.”
Chris Gorzalski, a local member of the group Old Broads for Wilderness, said the public lands and wilderness advocacy group is also worried.
She wrote St. George News in an email:
The issue we have with the county’s plan is that it would turn over public lands to the hands of the local government. If that happens the public input in development is removed. Many projects involve approval to develop due to involvement of federal lands. When this occurs the public is involved in the process through scoping and commenting. We are concerned that this is also a test case which would lead to many more in the future. This road is used for camping and recreation. What is the reason for the county’s interest?
A 30-day public input period concerning the Manganese Road RDI application wrapped up Dec. 9.
As for the county’s interest in the road, Clarke said the county performs routine maintenance on the roadway. Currently, work is being done to rebuild coverts and a part of the road that was washed out when the Santa Clara River swelled with water due to a hefty spring runoff earlier this year.
“It’s a road that washes out regularly,” Clarke said. “We have county equipment out there routinely repairing it.”
The BLM could roll out a decision on the Manganese Road by February 2020.
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