Ms. Sally Wisely
Utah State BLM Director
PO Box 45155
Salt Lake City, Utah 84145-0155

Dear Sally,

In an article (copy attached) that appeared in the Salt Lake Tribune on March 19, 2005 entitled “Kane County ups ante in road feud with feds,” which reports on the posting of signs on roads which Kane County has identified as part of its transportation system, statements attributed to Don Banks of your office are troubling. His comments seem to suggest that BLM will view county transportation systems, which must be part of the federal planning process, as something that the BLM can choose to recognize or not.

Our concern is less with a particular road than with what Don’s statements might reveal about BLM policy towards RS 2477. We understand that it is the position of the BLM that no valid RS 2477 rights-of-way exist within the Wilderness Study Areas in Utah. This position is clearly incorrect in a number of instances. However, this particular BLM policy is not why we are contacting you.

Instead, our more immediate concern is the implication in the article that BLM officials are “vexed” at Kane County’s activities to sign the roads it considers to be part of its transportation system. The article notes that “the Kanab Field Office is in the early stages of crafting a new resource management plan for the area” and that “OHV access and route planning will make up a significant portion of the plan.”

In this context, Don is quoted as observing that “The travel plans we do are the result of an open, transparent process that many people have participated in, including state and county governments.”

He goes on the say that Kane County “is acting as if the federal planning process has no standing as to how federal lands will be managed. I hope that is not true.”

Has he been accurately quoted and do these sentiments reflect the RS 2477 policy of BLM in Utah?

To us, his statements imply that with respect to the BLM planning process, Kane County is only on a par with any of the other interested parties who participate in the planning process. In fact, because there can be no question that Utah counties hold thousands of miles of valid rights-of-way granted under RS 2477 and grandfathered by Congress when it passed FLPMA, when it comes to land and transportation planning for federally-managed land Utah counties, and counties generally, are automatically in a special category compared to all other public land users.

Indeed, the existence of these rights-of-way, which are valid property rights granted directly by Congress, must be viewed by the BLM as “givens” in any management planning process. They are every bit as much so as the topography of the land or any other feature which provides the unalterable context within which these plans are developed.

We know of no one who asserts that “the federal land planning process has no standing on how federal lands will be managed,” as Don is quoted as saying. At the same time, however, he does not appear to understand that these rights-of-way are something the plans must recognize from the start and not ignore.

To alleviate any confusion which the Tribune article created and to create a more accurate understanding of BLM’s policy as it relates to RS 2477, I would appreciate responses to the following questions.

1. Does the BLM in Utah recognize that under Article 4, Section 3 of the Constitution Congress has the exclusive “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States?”

2. Does the BLM in Utah recognize the corollary, that the only authority that BLM can exercise is that which has been specifically delegated to it by Congress?

3. Does the BLM in Utah recognize that under RS 2477 the Congress conveyed rights-of-way across federally-managed lands directly to Utah counties, bypassing the Executive Branch entirely?

4. Does the BLM in Utah recognize that where these rights-of-way were validly granted they constitute a valid property right which becomes the dominant estate that includes a bundle of associated rights and that the underlying federally managed land becomes the servient estate?

5. Does the BLM in Utah recognize that there are at least some valid RS 2477 rights-of-way across the lands it manages in Utah?

6. Does the BLM in Utah recognize that it does not have the authority to determine the validity of an RS 2477 right-of-way assertion by a county but can only choose to recognize it or not for administrative purposes?

7. What are the directives to field offices and BLM staff who are preparing management and transportation plans for dealing with asserted RS 2477 rights-of-way in any instances where the BLM does not recognize them for administrative purposes?

I believe that the answer to questions 1 through 6 must be an unequivocal “yes.”
It is also clear to me that, based on their behavior and statements, for whatever reasons at least some BLM employees in Utah would not answer yes to these questions. From his statements, it appears that Don may well be among them.

Clearly, the policy of the BLM as reflected in the answers to questions 1 through 6 is essential to putting into the correct legal context how BLM handles situations reflected in question 7.

Counties in Utah and across the West are anxious to work as cooperatively as possible with the BLM and other land management agencies on all issues including RS 2477 assertions. We appreciate your response to this request and want to work with you on improving the cooperation between Utah counties and the BLM in this area.

We look forward to hearing from you soon.

Sincerely,

Mark O. Walsh
Executive Director

cc: Rep. Chris Cannon, Chair, House Western Caucus
WCA counties

Attachment