A Brief Analysis of SUWA v. BLM By Steve Urqhart

Access Attorney On The Case For San Juan And Garfield Counties

In SUWA v. BLM (the Southern Utah roads case) Judge Tena Campbell stepped aside and let one of the litigants decide the outcome. Not surprisingly, BLM found in favor of itself. The Counties are optimistic that this legal and procedural oddity will be reversed on appeal.

In 1998, the court stayed the case so that BLM could merely “acquaint the Court with its position concerning the matter.” Reasoning that BLM’s intent was not so benign, the Counties informed the court that it appeared BLM was angling to assume the role of jury. The counties asked the court to clarify how the findings would later be utilized by the court, and the court refused to do so.

BLM later submitted “administrative determinations,” concluding that the Counties did not meet the requirements for establishment of R.S. 2477 rights-of-way on the routes in question. The “requirements” utilized by BLM in those findings were not the subject of promulgated regulation but, rather, were created specifically for the routes in question. Most troubling, the requirements were those that Secretary Babbitt attempted to promulgate in 1994 and that Congress specifically forbade the agency from implementing.

Those requirements do not allow road creation through repeated use, despite established law to the contrary; rather, BLM requires actual construction with mechanized equipment – a condition that the Congress of 1866 (which granted R.S. 2477) did not impose or care about. Also, BLM’s requirements mandate that the roads go somewhere “significant;” seemingly at odds with other impassioned declarations, BLM determined that wilderness was not significant. Lastly, BLM determined that roads could not be created on lands subject to the massive coal withdrawals of 1906 which blanket 7 western states.

Deferentially reviewing those “findings,” Judge Campbell ratified BLM’s decision and ruled in the agency’s favor. The decision sidesteps the fact that the routes in question had been created mechanically and that many of the routes had been maintained repeated by the counties (and even BLM itself) since the 1950s. And, in a final insult to the rule of law, the Court stated that BLM’s legal conclusions and the Court’s adoption of those conclusions were supported by draft departmental policy. . . . You guessed it – the draft Babbitt regulations that Congress killed. The Counties are working diligently to return those failed regulations and also the district court decision to the trash heap of bad policy making.