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Show C2 Wednesday, September 28, 2005 .Vernal Express. Court sides with county in rights-of-way issue Uintah County Commission- ers are overjoyed with last Thursday's ruling from the Tenth Circuit Court of Appeals SfV Mountain West Oil Field RON UFFORD General Manager RAYLOYD Operations Manager Vernal, Utah CAMERON SERVING THE ROCKY MOUNTAIN RECION Complete Valve & Well Head Remanufacturing Facility New Sales Of API Approved Major Well Head components Machines Shop & Welding Service 781-0434 1442 E Hwy 40 Vernal ,J255 E. 1500 S. Vernal, UT 84078 M0U 03-000 1 Fax:(435)789-6696 Jack (mobile): (435) 790-2150 Duane (mobile): (435) 790-2151 COLORADO TUBULARSAZTEC PIPE LLC Over 25 years we take pride in our work Box 698 - Vernal, UT 84078 435-789-0900 (24 Hrs) Cell: 435-828-0900 Oil well dewaxing Ken Hiner Steam Cleaning presjdent Frac fluid heating V J (435) 78 1 -2294 2 1 60 S. 1 500 E. A P.O Box 1 230 A Vernal, UT 84078 concerning rights-of-way of county roads crossing federal land. The case involves 16 road Service Supplies Rentals 1884 So. 1500 E. Hwy 40 P. O. Box 670 Vernal, Utah 84078 (435) 789-0872 24 Hour Answering Service www.mtrwest easilink.com Office (435) 789-0872 (435) 789-1333 Fax (435) 789-0882 Cellular 790-7326 789-6938 Vernal, Utah 5E! Hot Shot ' Portable Mud Mixing Units Sand Blasting Pipe Inspection 'Trencher Rental Equipment 1435 South 1200 East Vernal, UT 84078 Phone: (435) 789-1414 Fax: (435) 781-0632 hot oiling experience Cl-I rights-of-way that counties assert are theirs under the federal statute known as R.S. 2477. In the decision, a panel of three judges unanimously rejected the BLM administrative administra-tive determinations that a judge of the Utah District Court has affirmed in disallowing the roads. The Tenth Circuit Court stated, however, the BLM lacked authority to conduct those determinations. "It is an absolutely fantastic decision," said Uintah County Commissioner Dave Haslem. "We didn't win everything, but the ruling clears up a lot of issues." The Tenth Circuit Court rejected numerous standards employed by the BLM determinations, determi-nations, including a requirement require-ment that the roads be established estab-lished by mechanical construction, construc-tion, and rejected the BLM's contention that a 1910 coal withdrawal with-drawal in the area over which some of the roads run, disqualified disquali-fied the area for establishment ofR.S. 2477 roads. The Tenth Circuit instead upheld the arguments by the counties that the correct law to apply in determining whether the roads are valid under R.S. 2477 is Utah law which provides pro-vides that continuous use for 10 years prior to 1976 is sufficient to establish an R.S.2477 right-of-way. This decision has been remanded to the District Court for complete review under the standards declared in the Tenth Circuit Court opinion. "This is a major victory for the counties as well as the State, who have been seeking to establish estab-lish countywide road systems for general public access," said Ralph Finlayson, Assistant Attorney General. "This case has been in litigation since 1996, when Kane, Garfield and San Juan counties were accused of trespass for performing maintenance main-tenance on roads they asserted as their rights-of-way under thek. federal law. Our legal system sometimes requires patience, but the results are worth the wait. I am very happy with the court's decision and applaud the counties for staying the course despite much unwarranted unwar-ranted criticism that often found its way into the media," said Mr. Finlayson, who represented repre-sented Kane and Garfield counties coun-ties in the case. "The ruling suggests that we don't have to ask permission of the BLM or Forest Service if we want to improve our roads," said Commissioner Mike McKee. "It doesn't suggest that we communicate our intentions to the governing agency." "Improvements could be graveling grav-eling a dirt road or paving a graveled road if it improves the safety and well-being of the residents res-idents of the county," Haslem said. Although Uintah County is not specifically named in the legal action, the decision in this case is presumed to apply to other counies with RS 2477 roads. Here are some of the major findings in the 10th Circuit decision: "As long as Counties act with the existing scope of their rights of way, performing maintenance main-tenance and repair that preserves pre-serves the existing state of the road, they have no legal obligation obliga-tion to consult with the BLM (although notice of what they 1 1 JR f w rfttf w 1H 1 l Drilling derricks are in big demand are doing might well avoid misunderstandings mis-understandings or friction). If changes (to the road) are contemplated, con-templated, it is necessary to consult, and the failure to do so will provide a basis for prompt ' injunctive rater. 'Bulldoze first, talk later' is not a recipe for ; constructive intergovernmental intergovernmen-tal relations or intelligent land management." "The BLM urges us to extend the reasoning of Cameron (How Mining Claims are to be patented) pat-ented) to the R.S. 2477 Rights of Way at issue here... However, this argument ignores a fundamental funda-mental difference between mining min-ing claims and R.S. 2477 Rights of Way; title to a mining claim passes by means of a patent, which is issued by the agency in accordance with specified procedures and subject ot specified spec-ified substantive prerequisites. Title to and R.S. 2477 right of way, by contract, passes without with-out any procedural formalities and without any agency (BLM) involvement. (R.S. 2477 rights away claims are the only western west-ern land law claims which are entirely self executing and are not based on any BLM policy) "Congress established a very different system for R.S. 2477 rights of way. Because there are not patents, title to rights of way passes independently indepen-dently of any action or approval approv-al on the part of the BLM. All that is required on the part of the grantee are acts sufficient to manifest an intent to accept the congressional offer. In fact, because there were no notice or filing requirements of any kind, R.S. 2477 rights of way may have been established-and legal title may have passed-without the BLM ever being aware of it. Thus, R.S. 2477 creates NO executive role for the BLM to play." "In sum, nothing in the Production I 111 I 1340 East 1100 South Vernal, UT 84078 Toll Free: (866) 789-6944 Fax:(435)789-2937 plsproductionlogging.com www.productionlogging.com (435) 789-6940 with the current oil boom in the Uintah terms of R.S. 2477 gives the BLM authority to make binding determinations on the validity valid-ity of the rights of way granted hereunder, and we (the 10th Circuit) decline to infer such authority from silence when the statute creates no executive execu-tive role for the BLM... Indeed, there have been 139 years of practice under the statute 10 years while the statute was in force and 29 years since its repeal and the BLM has not pointed to a single case in which a court has deferred to a binding determination by the BLM on an R.S. 2477 right of way. WE CONCLUDE THAT THE BLM LACKS PRIMARY JURISDICTION AND THE DISTRICT COURT ABUSED ITS DISCURSION BY DEFERRING TO THE BLM." "...we have not found, any cases before its repeal (1976) in which R.S. 2477 controversies controver-sies were resolved by anything other than state law... the real question, we think, is not whether state law or federal law applies, but whether federal feder-al law looks to state law to flesh out details of interpretation. R.S. 2477 is a federal statute and it governs the disposition of rights to federal property, a power constitutionally vested in the Congress..." "We therefore conclude that federal law governs the interpretation of R.S. 2477, but that in determining what is required for acceptance of a right of way under the statute, federal law "borrows" from long-established principles of state law, to the extent that state law provides convenient and appropriate principles for effectuating congressional intent. The applicable state law in this case is that of the State of Utah, supplemented where appropriate by precedent for Logging Services, Inc. Basin. other states with similar prin ciplesoflaw." "The district court correctly ruled that the burden of proof lies on those parties "seeking to enforce rights of way against the federal government." "Acceptance of an R.S. 2477 right of way in Utah thus requires continues public use for a period of 10 years. The question then becomes how continuous and intensive the public use must be. . .On remand, the district court will have the difficult task of determining whether the Counties have met their burden of demonstrating acceptance (of the right of way) under these precedents." "The BLM and SUWA argue that mere public use cannot suffice to establish an R.S. 2477 right of way. Instead they contend that some sort of mechanical construction must have occurred... "The BLM and SUWA cite no pre-1976 author ity for this interpretation of R.S. 24477, and we are aware of none. No judicial or administrative interpretation of the statute, prior to its repeal, ever treated "mechanical construction" as a prerequisite to acceptance of a grant of an R.S. 2477 right of way. The standard has no sup port in the common law... we cannot accept the argument that mechanical construction is necessary to an R.S. 2477 claim. Adoption of that stan dard would alter over a century of judicial and administrative interpretation... We are not persuaded. First it would take more semantic chutzpah than we can muster to assert that a word used by congress in 1866 has a 'plain meaning that went undiscerned by courts and exec utive officers for over 100 years We must not project 21st or 20th century notions of 'mechanical construction' onto an. 1866 stat ute." "R.S. 2477 grants "the right of way for the construction of highways over public lands, not reserved for public uses." At common law the term "high way" was a broad term encom passing all sorts of rights of way for public travel. In his magiste rial Commentaries on American Law, Chancellor James Kent wrote that "every thoroughfare which is used by the public, and is in the language of the English books, common to all the King's subjects," is a highway, wheth er it be a carriage-way, a horse way, a foot-way, or a navigable river." - nrtf |