Welcome back to The County Seat this is the
part of the show with our new format where we
have a discussion what we consider to be
revered experts on our topic our topic today of
course being RS2477 Roads and the impact they
have had on Utah and joining us for our
conversation is Commissioner who is from what
I call the ground zero county Kane County
where most controversy started well over a
decade ago and Jim Matson is a Commissioner
in Kane County we also have David Halverson
who is legal counsel for the Public Lands
Coordinating Office PLPCO as its known. David
thank you for joining us.
Happy to be here.
Has the process of resolving the RS2477 from
the time that Jim's predecessor pulled up the
stakes and put down county road signs have we
made any progress at being really close or
having a system in place where we think we can
resolve the issue? I think as we start to look at
this issue a little more time and it started out as
a more or less an administrative kind of a
technical issue devolved into a legal challenge as
such we are seeing our way through that
process to the point where we can try to figure
out to maintain access if you look at a county
like ourselves its just under 4700 square miles
access is a big question and a big need we have
as we go through all of that. So we end up
becoming a preservation based county and area
or do we actually have set up so that our people
and our friends and visitors can actually enjoy
the total area that is out there. As long as there
is movement under foot to limit our ability to
travel to those areas we are going to conduct
our portion of this in terms of the lawsuit itself.
Like the video would say it's only a name
RS2477 vs. Title 5 who really cares. But to put
that in real context how much of your
transportation system literally has been
affected by this?
I have not looked at it from that standpoint in
numbers but it is well in excess of 80% so it is a
big ticket item for us.
And has most of this happened since the
monument was declared?
Started out before and then it became a
monument and now we have this going on and
continue at this extent that we have today.
There is the question about legal steps that are
surely going to be talked about the bellwether
roads or how do we deal with this things but
the size the number the mileage it's a big
question we need to make sure how to best
way to get at a resolution of that. Incidentally
we think we are right.
That's good you should think you are right if you
are going into a challenge. Just to bring this
into context because most of the people
watching this program right now do not live in
Kane county they live up here on the Wasatch
Front and they are thinking what do I care
about some dirt road to a windmill or a well
that some rancher uses twice a year. Can you
gentlemen give me some examples of RS2477
Roads that people from the Wasatch Front are
more likely to understand our RS2477 and could
be closed under a Title 5 category?
I think the Hole in the Rock Road in Kane County
is a prime example. Perhaps you can talk about
that more specifically. Given its location and
how it access the Eastern Side of the county and
its impacts are as far as getting down to the
National park and that portion of the hole in
the rock itself it provides that means by which
we can enjoy that eastern edge of our county as
it also impacts Garfield County so this is not just
a Kane County issue as such its very much a big
part of that.
Roads like the Hole in the Rock Road are a great
one for tourists all over the state come to use.
It's a historical site that people like to visit and
that is one of our roads. We do have roads that
are used less often but we have roads that are
used every day or roads that are very commonly
used by people all over by tourists by ranchers
farmers there are roads there is a town in
Tooele County that I have been to where the
only way to get there is on a RS2477 Road and
it's a good road but if you close that road the
people that lived in that town could not get in
and out and so it's not just roads that are out in
the middle of nowhere at nobody uses or only
gets very sporadic use but is also roads that are
used frequently that are vital to the people that
live locally but also people that live here in the
Wasatch Front that like to go there and recreate
see the land.
Prior to Mayer Workman I believe Salt Lake
County had some RS2477 roads that were
abandoned during her administration is that
correct?
I'm not sure I know Utah County has Rs2477
roads so it is not just in Southern Utah are in
the rural counties we have in our litigation that
we are pursuing now we have 22 counties and
about 12,000 roads across the state and so it is
not just in Kane County or just in the counties in
Southern Utah but it's all over the state that it's
a prime concern for the counties to make sure
that the preserve access. A lot of these
counties have such a high percentage of BLM
land that if we do not have the roads they
cannot access the land there is not much good
to having the land if you cannot get to it and
use it.
So somebody listening to this, get off if what is
the likelihood that a current title 5 road that has
been historically used is going to get closed. Is
that even a possibility or are we just tilting at
windmills here and it is not really an issue.
Well there have been roads that have been
closed that is definitely the case and both BLM
and the forest service there is a steady push to
close roads in certain areas. It's not we are
worried that they are going to close all 12,000
roads and there are certain roads that are
certainly not top priority for the BLM to close
but there is that risk and the state and counties
want to be proactive we have to show that
roads were used prior to 1976 so the longer we
wait the harder it is to gather that testimony
and to gather that evidence. So if we wait
another 10 years and then BLM decides they
want to close the at road we are making it so
much harder on ourselves to be able to collect
that testimony.
As a legal counsel do you find it difficult for you
to prove up road use ten years prior that you
can go and look at a 1966 US geological survey
map you can look at a Rand McNally Road atlas
and see a route published on a map and that is
not enough evidence to prove that the road was
in use prior to 1976 its even further for the
forest service isn't it?
Yes, for most of our RS2477 claimed roads are
on the BLM because forest service were set
aside even earlier so those are even harder to
get through this litigation but the maps are not
always sufficient and so we do need that
testimony as well that is why we go out and we
do probably about 150 depositions a year in
different counties across the state trying to
collect testimony of those people that were
there prior to 1976 that were using the roads
really for any public use. They could have been
archers or farmers they could be out hunting
recreating driving around seeing the sites.
It boggles my mind though that if the
government acknowledged them on a map that
would not be sufficient proof to say well there it
is if I were a judge looking at it and I was trying
to solve a spat between somebody saying that's
not a road that you get a claim to because it
was not prior to 1966 and am looking at a 1952
map and I go well it's here and it's on your map
Mr. government logically that seems to me it
would be evidence.
I have always been surprise by how loath the
federal government is to admit any of these
roads. There are certainly roads that are in
dispute that we should have some litigation
over or should have a court to help us but there
are RS2477 roads that are paved roads that are
highway roads that are utilized almost every
day and the government still will not even
admit those roads. I have that same kind of
frustration sometimes there should be some
roads that reasonable minds be able to sit down
and say nobody disputes this is a road the
public has been using for decades it's been on
maps from 66 it been on the pioneers used it in
Kane County when they first got there.
Do you think the federal government is just at a
point that they are thinking I don't want to give
up the control just in case some day I want to
do something different I want to boot out Best
Friends Animal Sanctuary so I don't want them
to have access to their kitty kennels because
that is an RS2477 road up to there.
You bet, up Angel Canyon so we have other
roads like that same situation been around and
used for however long. So what is the issue? Is
it title? Is it access? What is the agenda what is
the federal government trying to accomplish
here. It's interesting to me whenever I think
about this way back in the 1800's there the
federal government sold lands in order to fund
federal government operations. So if you
bought a piece of real estate back in the back
country somewhere had to figure out how to
guarantee access and often times these are the
very same roads that the federal government
are trying to keep us from having title to. So it
just does not add up in a logical way.
Up until 1976 the federal government was
trying to promote building and using the road.
That is why our RS2477 was passed that is why
it was on the books for 100 years because they
wanted people to build roads to be able to have
access to the federal lands. It was not until 76
we see the shift in the federal government's
position of wanting to hold on and being much
more reticent to allow access and grant title.
That does not seem like a shift that seems like a
major seismic event. Overnight in September
76 it's almost like it took a 180 degree turn but
it took a little while to manifest it wasn't the
first real challenge on this when Garfield county
paved the Bur Trial road down through the dry
canyon.
Yes, it goes back to that period of time in the
early 90's that whole issues so it raised the
whole thing so to me personally I think it's a
bad faith effort on behalf of the federal
government to deny access to those areas that
have been accessed since the 1900's.
Bad faith effort I just heard that in a court case
recently I won't go there. The question is what
makes us have to litigate this. If you had
change in administration like we currently have
and they went okay well I guess you are right
couldn't they just stipulate this and it would be
over couldn't the BLM just say we stipulate we
will sign a record decision saying that we are
recognizing the county's right of way based on
the law based on the criteria that the state gave
and just not have to do this whole testimony
thing.
Yes, I think they could say only a court can
adjudicate and definitively declare that a road is
a RS2477 road that may be the case that the
court can say this is an RS2477 but there are
lots of other methods that the BLM or the
federal government has to quite title to disclaim
title to recognize the state and the county's
claim.
It would seem to me that if Salt Lake County
could abandon their RS2477 claims that it
would be equally true that the Bureau of Land
Management or the federal government could
abandon its title 5 claims. It seems to me that
should be an equal footing.
They take them away. Just limit access all
together. Some goofy administration in the
future could say we want to turn he whole
place into primitive, therefore you are not
welcome out here.
If you were to shut off all the disputed roads in
Kane county the ones you are challenging if
they were to all go away what kind of impact
would that have on your county?
I think the impact would be huge not only from
the standpoint from people that have an
expectation to be able to be out there but what
about the whole effort in terms of law
enforcement search and rescue all the rest of it
we need to have access to and be able to
manage ourselves in an effective way and
fashion. Say hey its bad faith all the way
through.
Some of these roads like I said the only way to
get to these areas is are these roads. I
remember doing a deposition of a family in
grand county they were getting a little older
and they have an adult son who is disabled and
they love to out in the country but they cannot
hike or backpack into the backcountry they can
do it in a truck they can do it on 4 wheeler so
they love to be out there but closing these
roads to only back packers is really limiting it to
a very small percentage of people who love to
be out there in the country.
I take a look at Kane and San Juan County look
at the road system I think a backpacker would
be cutting themselves short it literally seems to
me if they took the entire transportation
system that is in dispute and closed it it would
actually bite the hand that's been so excited
about having them maintain the control and
manage the access because their access would
be cut off too. I do not think there is a possible
way that you could hike across Kane County
from Johnson Canyon road to Ticaboo in any
season in the year and survive. Is there?
I wouldn't try it.
Even if you are young and 25 and back pack all
the time there are places if they had red rock
wilderness I do not know how you would ever
even access all that land I guess that doesn't
matter you just never know what was
happening out there. Where do we go from
here? The depositions are obviously very
important but do you think the other side is
using this as a timing strategy just to wait out
until everybody who can make testimony dies
off.
It's hard to know why they are slow walking it
why it is taking so long. Commissioner Matson
mentioned earlier the bellwether process and
that is part of the litigation that is starting to
proceed more quickly this year we are going to
take about dozen roads and starting focus in
Kane County and we will be able to try some of
the legal issues that are still in dispute or still
unclear and be able to resolve those I think that
will really help us to get moving along. We have
been collecting all this testimony but there is
still a lot of legal issues that we are unsure
about. Things like the scope of the road, how
wide or what counts as public use is it farmers
and ranchers do they count as public use how
many people do we have to testify to a road
and we are going to focus on these 12 roads
and get some decisions and adjudication on
some of those roads so that we can then apply
those legal theories and that framer work to all
12,000 roads.
If they only adjudicate one point per argument
though it's still going to be laboriously long
bankrupting decades approach to solve the
problem are we looking at saying lets solve all
of these issues at once?
I think we will try to hit all the main legal issues
that we are unsure about in this bell weather
process. I do not think anybody want to
adjudicate 12,000 roads but if we can solve
some of the legal issues and get answers to
some of those questions then perhaps we can
sit down and say okay this road qualifies
because we have the legal framework and that
has been clarified by the courts. So we can take
these 12 and take what we have learned in
deciding those 12 and apply them to all of our
other cases.
If this was a perfect world scenario and you got
to a point where every time you made a court
challenge you won, some people are gasping
that is said that and falling off chairs and write
nasty emails to me but if you got to that point
where you were in that situation would you be
able to just have them say there is no way we
can win let's just not litigate it anymore. Let's
just sign a ROD, a Record of Decision.
Yes, or a disclaimer of interest there are
different ways the federal government could
kind of say and recognize our claim or stop
fighting it there are certainly ways they could
do that.
So the ball is really in their court. They have the
power administratively to put an end to this just
by changing their tactic or is it still going to be
forced into courts.
They also have budget that makes you wonder
how much are they interested in expending on
the question. I think it's so wrong.
I can think of a half dozen other people I have
talked to put right in that chair you are and they
would say this is the most right thing to do
because counties should not be trusted with
having ownership of any roads they will just
abuse them.
I would welcome them to come into our county
and learn more about it.
I think there is some misconception about the
roads themselves. I think it is important to note
these are roads that have been there they are
not new roads we are not cutting paths through
wilderness or through undisturbed territory.
The other issue it's not that we own the land we
get a right of way which means that state and
the county gets to share a right of way that the
public can use but there are still limits on how
that right of way is used we cannot nor do we
want to turn every dirt road into a 2 land
highway there are limits on how wide it can be
on how far you can go off the road things like
that so it sometimes people that do not like
RS4277 like to paint the picture that we are
going to pave every road that is out there and
turn every little cow trail into a 2 lane highway
that is simply not the case.
What do communities that re going to be
affected by this what do they need to be doing
right now?
I think stay informed on what the situation is
and make sure that your point of view and
whatever it is that is of value to you is
understood and express those pro or con but
get more directly involved instead of making
this a media event and we all end up looking at
this as if we live along paved highways and the
backcountry is off limits we just need to have
more direct investment in that kind of a process
by our local residents.
Making your opinion known to your elected
representatives is very important and I also
mention the depositions that we are taking we
are always looking for new witnesses people
that were out on those roads prior top 1976 if
people are interested in sharing their life
experiences and their use of the roads that
would be a great to contact the state.
Let's take a time check on where we are the
depositions have bene going on a decade.
Not quite that long but have been going on for a
few years.
How young can somebody be before their
testimony does not count?
They have to be at least 60 years old when we
take their deposition. It is important as we are
going back before 1976 we understand that the
younger you get the less likely you were out on
those roads prior to 1976. But the way the court
has allowed us to take depositions is that we
are allowed to take people who are 60 years or
older.
Okay does the other side get to depose them at
the same time?
They are present for the depositions they can
ask those questions and ask them about the use
of the roads and mostly the state that is taking
charge of those depositions.
So I am a 80 years old women and I think I
would like to help to protect access to the place
our families used but I am afraid of being
deposed and having bright lights and people
interrogating me what is it like?
That's a great question it's a pretty informal
process. It is not antagonistic the federal
government that is there and the
environmental groups that represented are not
asking a lot of tough grilling questions. It's
really a conversation between myself for
example if I am the attorney there and the
witness. To ask you a questions of do we go
road by road and want to get your life story we
want to learn why you were out on the roads
we want to learn were you hunting, fishing was
this a favorite spot that you like to go because it
has a great view point. Was it something that
you went to check your cattle we just talk about
why you were there what you remember how
often you were on those roads and almost like a
family history.
Some people may be afraid if they do not have
really good recall that they could be convicted
of lying to the federal government that seem to
be a pretty popular theme these days is that
really a risk with this if they do not remember
clearly.
No, we just want your best testimony your best
recollection. If we talk and you say I do not
remember a road we say fine let's move on to
the next one and we want to get your best
understanding. We know we are talking about
things that happened decades ago and you are
under oath but we are just asking for your best
recollection of what those roads meant to you
how you use them in your life.
Those areas are already under land
management plans that protect the resources
protect the areas such there is no real big
chance for mischief to take place other than
why can't we have access? It's being taken care
of in a very adequate land management process
I fail to understand why we are even messing
around with this like we are.
Jim, what would happen to recreational access
in your county if these roads were closed?
Would it change the nature of how people
recreate in your county.
Yes, I think access has been a major factor to
that same question and it's been increasing as
we go along too. We can take a look at our
revenues that collected on restaurants and
hotel taxes based on the people that come to
visit are unique areas so all of the sudden the
access is limited what are we support to do? Do
we go to the Grand Canyon instead no I think
we need to visit and look at our own areas I
think that will be a big factor?
Gentlemen thank you for taking the time to talk
to us about this, it's been a very good
conversation.
Bringing this to a personal point when we come
back from our break we are going to talk to
somebody who has been deeply involved in the
RS2477 process and what its impact potentially
and literally means to him. Stay with us here on
The County Seat.
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