Protecting Public Lands from the Public: Kane County and Revised Statute 2477

I. INTRODUCTION In 1866, Congress passed Revised Statute 2477 ("RS. 2477").1 This Reconstruction-era statute granted a "right of way for the construction of highways over public lands, not reserved for public uses,"2 to encourage the development and construction of highways on public lands.3 The statute was an open-ended grant and did not require any action by local governments-or the federal government-to establish a valid right-of-way.4 Thus, it became difficult-if not impossible-to track valid R.S. 2477 rights-of-way.5 In 1976, Congress passed die Federal Land Policy and Management Act of 1976 ("FLPMA"), which repealed R.S. 2477.6 But FLPMA preserved RS. 2477 rights-of-way established before 1976.7 Recently, in Wilderness Society v. Kane County? the validity and scope of RS. 2477 rights-of-way came into question after Kane County passed an ordinance allowing off-highway vehicle ("OHV") use on certain county roads located within Grand Staircase-Escalante National Monument ("Grand Staircase-Escalante"). This Note will address the weaknesses in the Wilderness Society opinion, including the Tenth Circuit's decision to grant standing to private third-party plaintiffs under the Supremacy Clause9 and to ignore Kane County's R.S. 2477 rights-of-way. In particular, Part V will explain the pitfalls of the majority opinion by showing that the majority failed to adequately address Kane County's vested rights in R.S. 2477 roads and, in so doing, erred when it held that any county ordinance allowing OHVs in contradiction to federal management plans is preempted under the Supremacy Clause. II. FACTS AND PROCEDURAL HISTORY There are more than 1.6 million acres of federal public land within Kane County, Utah.10 Most of the public land in Kane County lies within Grand Staircase-Escalante.11 Grand StaircaseEscalante was created on September 18, 1996, by former President Bill Clinton.12 It encompasses 2700 square miles of land, in two Utah counties, equaling the size of Delaware and Rhode Island combined.13 Or, stated in different terms, Grand Staircase-Escalante is equal "to a one-and-a-half mile wide tract of land stretching from San Francisco to New York City."14 Since Grand Staircase-Escalante was created, Kane County has fought to have a voice in the management of these public lands.15 Wilderness Society represents the most recent litigation in this ongoing fight. The struggle in Wilderness Society began in 2000 when the Department of the Interior approved a management plan for Grand Staircase-Escalante.16 This plan prohibited OHV travel on many roads within Grand Staircase-Escalante, but recognizing the possibility of valid RS. 2477 rights-of-way, OHV travel was prohibited "subject to valid existing rights."17 Kane County officials-believing they had valid R.S. 2477 rightsof-way in parts of Grand Staircase-Escalante-removed thirty-one Bureau of Land Management ("BLM") road signs that prohibited OHV travel.18 Kane County officials also erected new signs, many of which permitted OHV travel on the disputed roads.19 Then, on August 22, 2005, Kane County passed an ordinance (the "2005 Ordinance") "to regulate OHV use on county . . . roads."20 Two environmental groups-the Wilderness Society and Southern Utah Wilderness Alliance-challenged the 2005 Ordinance and sought an injunction prohibiting Kane County from opening roads on federal public lands to OHVs.21 Kane County moved to dismiss, "arguing lack of subject matter jurisdiction, failure to state a claim, and failure to join necessary and indispensable parties (the State of Utah and the United States)."22 The district court rejected Kane County's arguments and stated that it "need not make any final determination regarding the existence of any RS. 2477 rightof-way in order to grant [the environmental groups'] requested relief."23 Kane County then filed a motion to alter the district court's order and sought permission to prove that the county possessed valid R. …