Rights of way
Brandon Siegfried says he’s not leading another sagebrush rebellion aimed at returning control of federal lands to Western states.
You could argue that the Mesa County resident is undertaking a suitcase rebellion, however, lugging around documents like an attorney as he works with Garfield County Commissioner John Martin on a campaign to protect what they say are legal rights of way across federal lands in western Colorado.
In their quest, Siegfried and Martin are reaching back to a law almost a century and a half old, known as RS 2477, and saying federal land managers can’t close routes granted under that law without seeking permission from counties.
The two are encouraging area counties to invoke the measure to seek recognition of historical rights of way in the region.
“Do not turn your back on a granted right,” Martin said during a recent presentation he and Siegfried gave to the members of Associated Governments of Northwest Colorado.
Siegfried also says counties that fail to take action could leave themselves vulnerable to lawsuits by access advocates, and that in cases where federal land managers close routes without county permission, “you can send your sheriff out there to open the gate.”
If such recommendations sound drastic, well, to Siegfried and Martin, that’s the situation western Colorado is in.
“I believe desperately this is a crisis situation,” Siegfried told the AGNC representatives.
He and Martin are driven in large part by the Bureau of Land Management Grand Junction Field Office’s draft resource management plan, which they believe goes much too far in the number of roads proposed for closure in Mesa County and western Garfield County.
Martin said of the Garfield commissioners’ response to the BLM, “We said no, that is not right, those roads have been used for many years, they have a purpose, they are 2477 roads.”
DISPUTE OVER PROCESS
Siegfried said he’s not saying every road needs to be kept open, but rather that the BLM and other agencies have hijacked the process for closing routes.
“They need to sit down with county commissioners,” the ones with ultimate authority to decide whether so-called RS 2477 roads should be closed, he said.
Not so, say the BLM and others.
“The bottom line is, the only body who can now determine that (2477 designation) is a federal court through a quiet title action,” said John Beck, acting deputy state director for energy, lands and minerals in Colorado.
“The only place to do that is in federal court,” agreed Rich Doak, recreation and lands staff officer for the Forest Service on the White River National Forest.
Said Ted Zukoski, an attorney with Earthjustice, a legal organization that works on conservation issues, “The federal government cannot be hauled into a county hearing to beg to be able to close routes on its land. That’s not how it works.”
That said, federal land officials say they work closely with counties and others to try to address concerns about proposed route closures.
“It is much easier when local governments and the BLM can work together to find those solutions. It’s certainly a more difficult situation to resolve in courts,” said state BLM spokesman Steven Hall.
And while he’s heard of people suggesting in heated moments the idea of sending in the sheriff to deal with a dispute, he doesn’t see that approach as benefiting the public.
So far, Mesa County has tried to work with the BLM, expressing concern about proposed road closures and their impacts and working on making rights-of-way assertions and identifying roads that the county has indicated it has a vested interest in.
“We submitted those comments, pages and pages and pages of comments and documents,” said Mesa Commissioner Steve Acquafresca.
Now the county is waiting to evaluate how the BLM responds to its concerns when it comes out with its revised proposal.
“Whether RS 2477 is a tool that the county would need to use, it’s premature to say, but we certainly reserve the right to use it if we think it’s an appropriate tool where we have a disagreement,” he said.
PART OF OPENING OF WEST
The story of Revised Statute 2477 harkens back to a much earlier Western era that Martin is fond of, as evidenced by his love of horseback riding and preference for cowboy garb in almost any setting. According to a memo by Garfield County Attorney Frank Hutfless to Garfield commissioners, RS 2477 was passed by Congress as part of the 1866 Mining Act and states that “the right of way for the construction of highways over public lands, not reserved for public uses, is granted.”
Martin said the intent was to foster opening the West for commerce through creation of trade and postal routes, wagon roads connecting towns, trails and other travel ways.
Congress revoked the law in 1976, but a dispute over determining pre-existing RS 2477 routes has ensued ever since. For the BLM, such routes can simply predate 1976, and for the Forest Service they have to have been established before individual forests were.
For Siegfried, RS 2477 has been an entry point in getting involved in advocating for maintaining travel access points on federal land.
Siegfried came to the area from South Dakota to attend what was then Mesa State College, and fell in love with the region and the idea that he could jump in a truck and head out in all kinds of directions on public land. But he became chagrined when he saw routes being closed in places such the Grand Mesa National Forest.
“I was uneducated. I didn’t know we could do anything,” he said.
Now an environmental/solid-waste consultant, he has devoted considerable spare time to delving into researching access issues in connection with the Grand Junction BLM management proposal, and has become what both Martin and Acquafresca say is a passionate voice on the access issue.
For Siegfried, it’s a simple matter of helping preserve access due to the recreational and economic benefits to the region. He’s advocating in part on behalf of his own sons.
“These two guys want to go hunting and fishing with their dad and I want to take my grandkids someday,” he said.
Martin is similarly motivated.
“We want to make sure that they have freedom of access, freedom of travel and the freedom to enjoy life. That’s really what it’s all about,” said Martin, who cited the importance of access to extractive industries, tourists, hunters, wildland firefighters and others.
A key part of their campaign is that RS 2477 rights are self-enacting and don’t need to have been recorded or documented. As a result, they take issue with the federal government’s argument that such rights must be exercised by making a claim in federal court.
Rather, said Martin, a federal agency must come before a county and go through a public hearing process under which the county can decide whether an RS 2477 right of way exists and if it should be vacated. Siegfried said the state of Colorado has granted that authority to counties except in cases where it has specifically ceded to the federal government exclusive jurisdiction to close a legal right of way.
WHAT THE APPEALS COURT SAID
But the BLM and Zukoski point to 10th Circuit Court of Appeals rulings in Utah cases. In 2005 the court ruled in favor of the Southern Utah Wilderness Alliance, which had challenged the BLM for having tried to make determinations on its own about what routes qualify as RS 2477 routes, Beck said. The court found the BLM lacked that authority, which meant that the only means to address such questions is for parties to file quiet title claims in federal court, he said.
Another appeals court decision in 2009 involved Kane County, Utah’s, raising of RS 2477 concerns in challenging federal off-highway vehicle restrictions in the Grand Staircase-Escalante National Monument. But Zukoski said the appeals court upheld a district court ruling holding that the means for dealing with RS 2477 matters is through a quiet title claim in federal court.
He said when the BLM decides whether to close a road, that isn’t a determination on whether an RS 2477 right of way exists, as that’s up to the courts to decide. If a court grants such a claim, Beck said, the BLM would revise its management plan accordingly.
Hall said it’s not a case of the BLM trying to close improved county roads. The roads that tend to be at issue are almost always all-terrain-vehicle routes, trails and other passageways.
In his memo last year to Garfield commissioners, Hutfless said mere non-use of an easement, without evidence of the county’s clear intent to abandon it, is typically not enough for it to be considered abandoned, and neither the federal government nor private parties can bar easement access by gates or other means.
But he also said litigation might be necessary to clarify county easement rights because it is unlikely that the federal government will acknowledge those rights otherwise.
Zukoski said RS 2477 claims have been common in Utah as a means of trying to elevate motorized uses against other legitimate uses of public land.
“This is sort of a law that died in 1976 and is sort of being revived again — not as a shield to protect public investments in highways but as a sword to try to defeat sound use of the public lands by public land managers,” he said.
Said Martin, “We’re not trying to pave the entire world. We’re not trying to open up freeways all over the county. … We’re not trying to make any changes other than the designations that they are public rights of way.”
COUNTIES LOOK TO TAKE ACTION
Garfield County has been gearing up for asserting easement rights by doing an inventory of rights of way in the county, and recently hired Glenn Adams, formerly Rifle district ranger for the Forest Service, to lead research into such matters.
“He was an access person who understands what we’re talking about,” Martin said.
In years past, Montrose and Moffat counties have passed resolutions asserting authority over rights of way based on RS 2477, and Martin and Siegfried are encouraging other counties to follow suit. The board of the Associated Governments of Northwest Colorado this week is scheduled to consider a resolution restating its position in general support of the concept.
“The key issue is continued public access to the counties and the local governments being able to retain as much local control as they were granted originally,” said ANGC director Scott McInnis, the former western Colorado congressman.
Martin also has drafted federal legislation that he says would establish a procedure for resolving RS 2477 claims and is looking for possible bill sponsors. Asked about Martin’s proposal, Josh Green, spokesman for U.S. Rep. Scott Tipton, R-Cortez, said Friday, “We are currently in the process of doing additional research into the issue and determining what the most effective way forward would be.”
And Siegfried is increasingly turning his attention to state laws in Colorado, which he believes go above and beyond RS 2477 in protecting access to public lands in the state.
“The fact of the matter is, the Colorado revised statutes regulate our legal right of ways in the state and there’s no way around it,” he said