Southern Utah Wilderness Alliance v. Bureau of Land Management
2005 WL 2160136, 425 F.3d 735 (2005)
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Rule of Law:
The validity of a right-of-way claim under Revised Statute 2477 is a matter for de novo judicial review, not binding agency adjudication, and is determined by federal law which incorporates state law principles of acceptance. Under Utah law, acceptance is established by continuous public use for a period of ten years, and holders of such rights must consult with federal land managers before making improvements beyond routine maintenance.
Facts:
- In 1866, Congress enacted Revised Statute 2477 (R.S. 2477), an open-ended grant for the construction of highways over unreserved public lands.
- In 1976, Congress repealed R.S. 2477 through the Federal Land Policy Management Act (FLPMA), but it grandfathered in any valid rights-of-way that existed as of the date of repeal, October 21, 1976.
- In September and October of 1996, road crews employed by San Juan, Kane, and Garfield Counties graded sixteen routes located on public lands managed by the Bureau of Land Management (BLM) in southern Utah.
- The Counties performed this road work without notifying or obtaining prior permission from the BLM.
- The Counties asserted that their actions were lawful because they held valid R.S. 2477 rights-of-way for the sixteen routes.
- Some of the routes graded by the Counties were located within designated wilderness study areas, the Grand Staircase-Escalante National Monument, and areas overlooking Canyonlands National Park.
- For most of the routes, this was the first time the Counties had graded them, although some showed signs of previous construction or maintenance activity.
Procedural Posture:
- Southern Utah Wilderness Alliance (SUWA) sued the BLM and San Juan, Kane, and Garfield Counties in the U.S. District Court for the District of Utah, seeking declaratory and injunctive relief to halt the Counties' road grading activities.
- The BLM filed cross-claims against the Counties, alleging trespass and seeking damages.
- The district court stayed the litigation and referred the question of the validity and scope of the Counties' right-of-way claims to the BLM, invoking the doctrine of primary jurisdiction.
- Following an informal adjudication, the BLM issued final administrative determinations concluding the Counties lacked a valid right-of-way for fifteen of the sixteen claims and had exceeded the scope of the right-of-way on the sixteenth.
- The district court then lifted the stay, treated the case as an appeal of agency action, limited its review to the administrative record, and applied the 'arbitrary and capricious' standard of review.
- The district court affirmed the BLM's determinations in their entirety and granted a declaratory judgment against the Counties.
- The Counties appealed the district court's final order to the U.S. Court of Appeals for the Tenth Circuit.
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Issue:
Does the Bureau of Land Management (BLM) have primary jurisdiction to make a binding determination on the validity of a right-of-way claimed under Revised Statute 2477, thereby limiting judicial review to the administrative record under an arbitrary and capricious standard?
Opinions:
Majority - McConnell, Circuit Judge.
No, the Bureau of Land Management (BLM) does not have primary jurisdiction to make binding adjudications on the validity of rights-of-way claimed under R.S. 2477, and therefore judicial review of such claims must be de novo. The doctrine of primary jurisdiction applies only when Congress has placed an issue within the special competence of an administrative agency. R.S. 2477 contains no such grant of authority; it creates no executive role for the BLM, as title to a right-of-way passed automatically upon acceptance without any agency process or patent. This interpretation is confirmed by over a century of consistent BLM practice disclaiming authority to make binding decisions on R.S. 2477 claims, and by a subsequent act of Congress prohibiting the agency from issuing final regulations on the subject. Therefore, the district court abused its discretion by deferring to the BLM's determination instead of conducting a plenary review. On remand, the court must also apply the correct substantive legal standards. Federal law governs R.S. 2477 but 'borrows' from state law to define acceptance. Under Utah law, acceptance requires ten years of continuous public use, not proof of 'mechanical construction' as the BLM argued. Finally, holders of valid R.S. 2477 rights must consult with the BLM before undertaking improvements beyond routine maintenance, as the holder of an easement may not unreasonably interfere with the rights of the servient landowner, which in this case is the United States.
Analysis:
This decision significantly shifts the authority to resolve contentious R.S. 2477 claims from the Bureau of Land Management to the federal courts, requiring de novo review rather than deferential review of an agency record. By rejecting the BLM's recently adopted, stricter 'mechanical construction' standard in favor of the traditional, state-law-based 'public use' standard, the court makes it potentially easier for local governments to validate historical rights-of-way. However, the ruling also establishes a crucial new procedural check on county power by requiring advance consultation with federal agencies for any road improvements beyond routine maintenance, providing federal land managers with a tool to protect conservation values on the surrounding public lands.
