From Blazing Trails to Building Highways: SUWA v. BLM & Ancient Easements over Federal Public Lands

Wolking, Tova
August 2007
Ecology Law Quarterly;2007, Vol. 34 Issue 3, p1067
Academic Journal
Potentially thousands of miles of federal public land are burdened with outstanding right-of-way claims under a single sentence taken from a Civil War era mining statute, Revised Statute 2477 (R.S. 2477). R.S. 2477 seemed simple, in that it provided self-executing grants of easements over unreserved public lands. Nearly a century and a half later, though, resolution of these claims has become a complex issue, rife with uncertainty about which access routes are valid and which areas of land are affected. This is an especially salient issue in Utah, a public land state; Utah is comprised primarily of federal land, and it is riddled with an estimated 10,000 local R.S. 2477 roads. The Tenth Circuit Court of Appeals' extensive opinion in Southern Utah Wilderness Alliance v. Bureau of Land Management (SUWA) culminated a legal battle among several rural Utah counties and the Bureau of Land Management (BLM) over the "improvement" of rights-of-way through federal land in southern Utah. While the court upheld the agency's ability to regulate changes to existing rights-of-way, it rejected BLM authority to determine the initial validity of R.S. 2477 claims. This Note contends that case-by-case adjudication of claims, pursuant to SUWA, is insufficient. It advocates for a proactive national plan to settle outstanding R.S. 2477 claims. To date, Congress has not only failed to devise such a plan, but it has also hindered resolution by placing a moratorium on agency rulemaking. Legislators need to reach a compromise between "states' nghts" and "federal rights" and develop a rational solution that balances the protection of federal public lands against the transportation needs of rural residents in public land states.


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