From the October 2000 Idaho Observer:

Suit filed to stop bad Utah county road agreement

Citizens fight county, feds to protect private property rights infringements caused by Clinton's suspect dealings at Escalante

By The Idaho Observer

KANAB, Utah -- On September 8 Judge David Mower ordered that an existing Temporary Restraining Order be changed to a Preliminary Injunction on the Kane County, Utah, Commission's proposal to sign a controversial road agreement with the Grand Staircase Escalante National Monument which is managed by the U.S. Bureau of Land Management (BLM).

Judge Mower also stated that a motion passed by Kane County Commissioners Steve Crosby and Joe Judd in an August 14th Commission Meeting to negotiate and sign a road agreement with the BLM was invalid because of improper public notice. The improper public notice was acknowledged by both Kane County Attorney, Colin Winchester, and People for the USA (PFUSA) and citizens attorney, Mike Shaw.

PFUSA and other private citizens, fearing that a restrictive road agreement between Kane county and BLM would cause irreparable harm to their private property rights, served the lawsuit against the Kane County Commission at an August 23, 2000, public meeting. They feel that restricting access to the source of their livelihood, mineral and water rights and recreation is not in the best interest of the citizens of the county. The parties involved in the lawsuit were ordered by the Judge to try to find common ground for agreement within a couple of weeks. Attorney Shaw asked, “What interest does the county have in signing this agreement?”

The agreement would allow the BLM to overlay federal privileges to rights of way upon existing RS 2477 property rights that allow access within Grand Staircase Monument.

RS 2477 is an 1866 Grant that gave the right of access across federal public lands to the States over roads and trails that can be proven to predate federal claims to an area.

Attorney Winchester insisted the Kane County Commission had the authority to sign a road agreement even though the injunction was in place. Attorney Winchester claimed that the “commission has the right to enter into any agreement, bad, even illegal.” The people in opposition to this position feel the entire county, including the Planning Commission and Resource Committee, has a duty and requirement to be involved in the process.

Mike Noel, Vice President of the Color Country Chapter of PFUSA said, “we finally had the opportunity with a judge who acted as an arbitrator rather than a litigator to let both sides, in an unemotional setting, stand up and present the facts. The facts stated that PFUSA and the citizens have a grievance.”

Noel said people will be harmed by the road agreement, and the Kane County attorney agreed that people will be harmed by the road agreement. Noel stated “Clearly, PFUSA wants to negotiate. We want these commissioners to recognize the fact that the people do have the ultimate control over these lands and that the County Commission has the fiduciary responsibility to protect the citizens interest on these lands.”

Fred Johnson, State PFUSA Roads Chairman, said his feeling is that, “One group says they want to overlay federal permits on RS2477 state and county road rights, and the other group says, 'No way, there's no place in federal law that you can do that, no law, no precedent.' The BLM has a special management area containing a network of RS2477 roads that they want to manage in some way.

“My thought is this -- the BLM ought to be coming to the county and asking permission to operate on the RS2477 roads. The full county should be consulted. The roads supervisor, the planning commission, county commission, etc. should then meet with the BLM and advise them if an agreement can be made. Apparently, the BLM has to have this Title if they are going to step up to the plate when the Quiet Title actions get into full swing. BLM has no claim to the roads now and a permit giving title would be the only title they would have to the roads. Kane county has a grant (RS2477) and nobody can give up the grant but the grantee (the state). All the BLM has is the president's decree of territorial status.

“The grant (RS2477) was there long before the territorial status was in place. Therefore, the grant will prevail. The county must hold fast to its RS2477 right.”

For more information about how this citizen prosecution of RS2477 rights of way is progressing, contact: Marilyn Lawson (435) 644-5064 or Mark Habbeshaw (435) 644-8091.