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10th Circuit Overrides Counties’ Road Claim

(CN) - The 10th Circuit overrode a bid by two Utah counties for informal federal recognition of roads and water rights in the Grand Staircase-Escalante National Monument.

Citing an 1866 highway construction law, the counties of Kane and Garfield, along with the Kane County water district, claimed that a 1999 monument management plan infringed on their transportation and water rights. The law, though repealed in 1976, grandfathered in existing rights-of-way.

The Sierra Club and the Southern Utah Wilderness Alliance intervened, arguing that the counties' claims should be dismissed as overly vague and speculative.

The counties brought their case to the Denver-based appeals court after the district court in Utah dismissed their claims.

Judge Briscoe found that the counties and water districts had no basis for forcing the Bureau of Land Management, which controls the monument, to "informally adjudicate their purported rights-of-way." Neither federal law nor the U.S. Constitution stipulates any such requirement, the three-judge panel concluded.

The counties cited only one specific case of potentially curtailed access, a well right-of-way application that's pending. The 10th Circuit affirmed dismissal of the counties' claims, denying the counties' attempts at informal federal recognition of alleged water and transport rights.

In a separate concurring opinion, Judge Henry assessed the historical animosity between "pioneers" and "bureaucrats" by quoting a 1947 Harper's Magazine article summing up "the traditional Western attitude toward the federal government as 'get out and give us more money.'"

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