(CN) – The 10th Circuit upheld a decision barring a Utah county from removing federal signs and erecting its own notices that promote off-road vehicle use in the Grand Staircase-Escalante National Monument.
In 2005, the county enacted an ordinance that opened routes on federal land to off-road use. In doing so, it took down Bureau of Land Management signs and erected about 100 of its own notices endorsing motorized vehicle use.
Some of the roads declared open by the county had been closed by a 1999 federal management plan for the national monument.
The county asserted rights-of-way under an 1866 statute intended to encourage settlement of the West. Although the Federal Land Policy and Management Act of 1976 repealed the statute, it allowed existing rights-of-way to be grandfathered in.
The Wilderness Society and the Southern Utah Wilderness Alliance sued Kane County over the signs in 2005, and the county rescinded its ordinance the following year.
In 2008, a federal judge in Utah blocked the county from putting up signs that contradict federal land-management policies, saying the practice violates the Supremacy Clause, which ranks federal law above state law.
Kane County appealed to the Denver-based 10th Circuit, claiming that the environmental groups lacked standing, that the case was moot because the ordinance was rescinded, and that the ordinance didn’t conflict with federal regulations.
Two of the three appellate judges upheld the lower court’s opinion, writing that the environmental groups had presented clear evidence that the county’s acts harmed the aesthetic and recreational interests of their members.
Judge Lucero, writing for the majority, shot down the county’s claim that the case was moot. It didn’t matter that the county rescinded the ordinance, Lucero said, because the county might decide to enact a similar ordinance in the future.
The 2-1 majority also rejected the county’s Supremacy Clause rebuttal, saying the view that the local signs don’t conflict with federal regulations “departs from reality.”
In a vehement, 30-page dissent, Judge McConnell described the issue as a property dispute between federal and county governments. McConnell wrote that Kane County retains “vested property rights” that should not have to work their way through court.
The environmental groups are “interested outsiders” who lack standing, McConnell wrote, and such “interest groups … should not be allowed to hijack” the process of determining government property rights.
McConnell compared the case to California’s passage of medical marijuana laws. “[T]he federal government is free to enforce its rules without Kane County’s help, just as the Department of Justice is free to enforce its drug laws without California’s help.”
The panel ruling means that the BLM’s maps will be used in the Grand Staircase-Escalante National Monument. It also prevents the county from erecting its own signs there and in three other areas until the rights-of-way claims have run their course through the courts.