Kane County Utah v. Salazar

562 F.3d 1077, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20083, 2009 U.S. App. LEXIS 8117, 2009 WL 975505
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 13, 2009
Docket07-4207, 08-4014
StatusPublished
Cited by35 cases

This text of 562 F.3d 1077 (Kane County Utah v. Salazar) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kane County Utah v. Salazar, 562 F.3d 1077, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20083, 2009 U.S. App. LEXIS 8117, 2009 WL 975505 (10th Cir. 2009).

Opinions

BRISCOE, Circuit Judge.

Plaintiffs Kane County, Utah, the Kane County Board of Commissioners, Garfield County, Utah, the Garfield County Board of Commissioners, and the Kane County Water Conservancy District filed suit against the Secretary of the Interior and other federal governmental officials alleging that a management plan adopted by defendants for overseeing the Grand Staircase-Escalante National Monument infringed upon plaintiffs’ water rights and certain rights-of-way utilized by plaintiffs [1079]*1079for purposes of public highways. The district court dismissed plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Plaintiffs now appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Rights-of-way over public lands pursuant to R.S. 21.77

“In 1866, Congress passed an open-ended grant of ‘the right of way for the construction of highways over public lands, not reserved for public uses.’” S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir.2005) (quoting Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (FLPMA), Pub.L. No. 94-579 § 706(a), 90 Stat. 2743). “This statute, commonly called ‘R. S. 2477,’ remained in effect for 110 years, and most of the transportation routes of the West were established under its authority.” Id. “In 1976, however, Congress abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation.” Id. at 741. “As part of that statutory sea change, Congress repealed R.S. 2477.” Id. “There could be no new R.S. 2477 rights of way after 1976.” Id. “But even as Congress repealed R.S. 2477, it specified that any ‘valid’ R.S. 2477 rights of way ‘existing on the date of approval of th[e] [FLPMA]’ (October 21, 1976) would continue in effect.” Id. (quoting Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976)). Congress also directed that “[a]ll actions [taken] by the Secretary concerned under this Act [the FLPMA] shall be subject to valid existing rights.” 43 U.S.C. § 1701 historical note (h).

Creation of the Monument

On September 18, 1996, President Clinton created the Grand Staircase-Escalante National Monument (Monument), located in Kane and Garfield Counties, Utah, to protect a “spectacular array of scientific and historic resources.” 61 Fed.Reg. 50,-223 (Sept. 18, 1996). In doing so, President Clinton proclaimed that “[a]ll Federal lands and interests in lands within the boundaries of th[e] monument [we]re [tjhereby appropriated and withdrawn from entry, location, selection, sale, leasing, or other disposition under the public land laws,” and that “[l]ands and interests in land not owned by the United States s[hould] be reserved as a part of the monument upon acquisition of title thereto by the United States.” Id. at 50,225. The proclamation did not, however, “reserve water as a matter of Federal law.” Id. As part of the proclamation, President Clinton directed the Secretary of the Interior (the Secretary) to “prepare, within 3 years ..., a management plan for” the Monument. Id. Lastly, the proclamation provided that the Secretary would “manage the [Monument through the Bureau of Land Management” (BLM). Id.

The management plan for the Monument

On November 15, 1999, the Secretary issued a final management plan (the Plan) and record of decision (ROD) for the Monument. 65 Fed.Reg. 10,819 (Feb. 29, 2000).

The ROD, which was published as part of the Plan, stated, in pertinent part:

[Djiscussion of R.S. 2477 assertions in footnote 1 of Chapter 2 of the Approved Plan has also been clarified to emphasize that nothing in the Plan extinguishes any valid existing rights-of-way in Grand Staircase-Escalante National Monument. Nothing in this Plan alters in any way any legal rights the Counties of [1080]*1080Garfield and Kane or the State of Utah has to assert and protect R.S. 2477 rights, and to challenge in Federal court, or any other appropriate venue, any BLM road closures that they believe are inconsistent with their rights.

App. at 20 (citing ROD, p. ix).

The Plan, in a section entitled Transportation and Access, stated:

TRAN-1 This Plan designates the route system for the Monument. The transportation map (Map 2, in the back of the document) shows routes that will be open for public use and those available for administrative use only (see the Administrative Routes and Authorized Users section for related decisions). Any route not shown on Map 2 is considered closed upon approval of this Plan, subject to valid existing rights. [fn.1]
The specific routes shown open for public use are based on a variety of considerations including what is needed to protect Monument resources, implement the planning decisions, and provide for the transportation needs of surrounding communities. The basic philosophy in determining which routes will be open was to determine which routes access some destinations (e.g., scenic overlook, popular camping site, heavily used thoroughfare) and present no significant threat to Monument resources. These routes will be open for public use. Routes that were not considered necessary or desirable (for resource protection purposes) will not be kept open for motorized and mechanized public access. In the event that Title 5 rights-of-way are issued or in the event of legal decisions on RS 2^77 assertions, routes will he governed under the terms of those actions.

Grand Staircase-Escalante National Monument Management Plan at 46, available at http://www.blm.gov/ut/st/en/fo/grand_ staircase-escalante/planning/monument_ management.html (last visited on January 20, 2009) (emphasis added).1

Under the Transportation and Access provisions, the Plan also provided:

Road Restoration Strategy
TRAN-17 The BLM’s strategy for restoring routes that will no longer be available for public or administrative [1081]*1081motorized use in the Monument will be phased over a period of years. This will be accomplished as rapidly as funding permits. It is anticipated that this could take as many as ten years. Each year, a percentage of the Monument’s base budget will be used to restore routes in areas that are easily accessible to the public and that involve sensitive resources in immediate danger of being degraded. Generally, routes in the Frontcountry and Passage Zones will be closed first. However, there may be routes in the Outback and Primitive Zones that will be considered on a case-by-case basis.

The proposal for restoration will include:

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Bluebook (online)
562 F.3d 1077, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20083, 2009 U.S. App. LEXIS 8117, 2009 WL 975505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kane-county-utah-v-salazar-ca10-2009.