By Myrna Trauntvein
Times-News Correspondent
Brad Shafer, Utah Association of Counties, talked to
Juab County Commissioners, Glenn Greenhalgh, county economic
development director, and Craig Sperry, county recorder,
about the RS2477 recording program.
"I am here to up-date where you are and where you
should be heading in regards to RS2477," said Shafer.
RS 2477 rights-of-way are property rights originally
granted by the federal government to establish the
transportation network essential to settlement of the
western frontier.
Juab County Commissioners have been working to map and
identify all roads in the county.
"We have maps of our roads in the hands of the BLM,"
said Neil Cook, county commission chairman.
It is hoped, said Shafer, that the process of
reviewing the maps of the roads and trails the county is
claiming will shake out those roads which may be
disputed.
The process became important because, in recent years,
these rights-of-way and the public's continued access to
these public lands has been threatened.
Historically, these rights-of-way grants were made to
local governments and are held in trust by them for the
public. Today, they continue to provide virtually all the
public access to and across the hundreds of millions of
acres of public lands in the West and Alaska.
R.S. 2477 refers to a now-repealed portion of the 1866
Mining Act, which state's "the right of way for the
construction of highways over public lands, not reserved for
public uses, is hereby granted." While the grant was
repealed in 1976, rights of way previously created under the
statute can effectively remain "grandfathered" in and
available to the public today.
After the maps are submitted to the Forest Service and
the BLM, said Shafer, they will review them.
"The roads that we have to litigate will shake out of
that process," he said. "The idea is that this will flush
out the roads and trails which are ones that they may have a
problem with."
The county already has three roads which are in
litigation, said Greenhalgh.
"We have done very little with trails," he said.
In fact, said Robert Steele, commissioner, the county
has many trails and roads not placed on the maps.
"Some were not center-line roads and some were not
necessary," said Steele. "We have already eliminated some
roads."
The process is being helped by the ruling of the Tenth
Circuit Court last fall, said Shafer.
On September 8, 2005, a three judge panel of the Tenth
Circuit Court of Appeals published its ruling on the appeal
of a case originally heard by Judge Tina Campbell involving
San Juan, Garfield and Kane Counties and claims of trespass
on federal lands in the act of performing maintenance on
roads.
In a nutshell, this ruling interjects some reason and
sanity back into the process for determining what an RS2477
right-of-way is.
Following are some of the key points in the 10th
Circuit ruling.
An RS2477 right-of-way entitles the holder
(county/state) to perform routine maintenance within the
right-of-way whenever it deems maintenance is necessary. A
county must consult with the BLM before beginning any
improvements to an RS2477 right-of-way across federal
land.
The validity of the counties' RS2477 claims is central
to determining whether or not trespasses occurred in the
cases at hand.
The BLM does not have the authority to make binding
determinations on the validity of RS2477 claims. This
authority belongs to the courts.
Federal law does govern the interpretation of RS 2477
but borrows from state law because state law is helpful in
providing clearer principles for effectuating the
Congressional intent of RS2477. Therefore, in Utah, Utah
state law shall be used in determining what constitutes a
public right-of-way. (Utah law employs a standard based on
continuous public use.)
Evidence of actual construction, or the lack thereof,
is neither a necessary nor a sufficient element in the
determination of the validity of an RS2477 claim.
The 10th Circuit remanded the case back to the
District Court with instructions to use the guidelines set
forth in it's opinion to answer two questions: first; the
validity of Garfield, Kane and San Juan Counties' RS2477
claims, and second, to determine whether the road work
performed constituted a trespass (did the counties perform
routine maintenance or construct improvements?).
The county must update the transportation plan as part
of the process.
"On March 22, in Richfield, we will have a dry run at
our meeting," said Shafer.
Hard copies of maps will be stored at the state
archives but the data will be available electronically.
"All of the information will be produced by ARGC,"
said Shafer. That will be done so that counties will not
have to do it."
The county will be sent an 8-inch by 11-inch map of
each road with the location where it can be found
electronically.
"I think it is meaningless," said Sperry."We would
have 1,000 sheets of paper."
"The roads are already on USGS maps," said Steele.
"There is a use to that. It is something that is used."
The satellite-driven GPS, for "global positioning
system," based on the geometric principle of
"trilateration," as in "You're now 11,000 miles from
satellite X, 12,000 miles from satellite Y, 13,000 miles
from satellite Z, so WHERE ARE YOU?"
There are 24 satellites orbiting at 12,000 miles above
the Earth.
Once your GPS receiver maps out the three
fixed-distance spheres and finds the points of intersection,
then uses a fourth satellite to correct for receiver time
"drift," you'll know where you are.
"We have not GPSed a number of our roads," said
Greenhalgh. "We are short of some photos."
In fact, GPS pinpoints places so precisely it's like
every square meter of the Earth has its own unique address,
instantly available and free of charge.
Even a hiker out in the wilderness can use it to help
keep from getting lost.
There were aerial maps of roads before 1976, said
Steele, and if the county roads are apparent on one of those
maps, they should not require affidavits.
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