DENVER (CN) — Four years after the 10th Circuit granted environmentalists access to intervene in a road dispute between the federal government and Kane County, Utah, the same group returned on Thursday to reassert its interest in a carbon copy quiet title action.
Kane County, Utah, sued the United States on Oct. 28, 2010, to claim ownership of roads crossing federal lands under an 1866 frontier-era law granting rights of way to local governments that built and maintained roads across federal land. Though the law was repealed in 1976 by the Federal Land Policy and Management Act, a party can still assert ownership of roads it can prove it owned during the law's 90-year lifespan.
To date, the U.S. and Utah counties have filed dozens of nearly identical lawsuits disputing ownership of some 12,000 roads covering 36,000 miles.
The case was originally assigned to Senior U.S. District Judge Clark Waddoups, appointed by George W. Bush, and has returned to his docket after passing across other judges’ desks over the last decade.
Waddoups initially dismissed the Southern Utah Wilderness Association’s efforts to intervene in the first of many Kane County cases, but the 10th Circuit in 2019 reversed, allowing the group to enter. When a second Kane County case came up, Waddoups said he had seen enough evidence in the bellwether trial to reassert his earlier denial.
The association appealed.
On behalf of the Southern Utah Wilderness Alliance and others, attorney Kathleen Hartnett said Judge Waddoups rejected their motion to intervene simply because he disagreed with it — even though their interest remained the same and the 10th Circuit had previously allowed them entry.
“We are just trying to have a seat at the table,” Hartnett said, gripping her glasses at the podium. “The United States does not adequately represent our interests.”
Hartnett explained that the underlying quiet title litigation gives way for roads to be widened and paved throughout Kane County. Court documents point out some of the so-called roads are just cattle trails or stream beds.
U.S. Circuit Judge Gregory Phillips, appointed by Barack Obama, said he understood the importance of the case but questioned whether environmental preservation really comes up in a property dispute.
“When I hear about the roads possibly being expanded, I think maybe you should have a seat at the table then,” Phillips said, emphasizing the word “then,” to suggest that this type of argument wasn’t being made now. “The next debate will be in a different forum.”
On behalf of the United States, U.S. attorney John Bies asked the court to affirm the district’s decision.
“We are still vigorously defending our title to that property,” Bies assured the panel.
On behalf of Kane County, Holland & Hart attorney Shawn Welch emphasized the urgency of allowing the case to conclude quickly. With the Bureau of Land Management issuing more and more permits to visit the Grand Staircase-Escalante National Monument, a larger number of visitors are traveling on increasingly treacherous roads.
“The disturbed path has to stay the same unless there is federal action,” Welch explained. “There are places with no 10-to-12-foot path that would allow two vehicles to pass, and Kane County needs to resurface roads that are turning into riverbeds.”
Outside the court, Welch traced the trouble back to 2000, when then-President Bill Clinton created the 1.6 million-acre national monument.
“He drew some lines on a map to represent where the roads should go and left the details to the country to figure out,” Welch told Courthouse News with a chuckle.
Bordering Zion National Park, Kane County contains Glen Canyon, Vermilion Cliffs and the Grand Staircase, all drawing millions of tourists every year. Only a fraction of the county contains taxpayers, however, who often foot the bill for road maintenance and rescue operations.
“This case will help us sustain our economies, livelihoods and way of life,” Kane County Commissioner Celeste Meyeres told Courthouse News. Meyeres flew into Denver for the hearing, along with Utah Assistant Attorney General Kaitlin Davis.
Waddoups began holding a bench trial in February 2020, just before the Covid-19 pandemic shuttered the courts and threw the case into civil litigation limbo. The parties are still preparing closing arguments for the bellwether trial, and will then await the judge's ruling.
Senior U.S. Circuit Judge Paul Kelly, appointed by George H.W. Bush, and U.S. Circuit Judge Veronica Rossman, appointed by Joe Biden, rounded out the panel. The court did not indicate when or how it would decide the case.
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