At the end of 2020, the Montezuma County Commissioners continued their effort to identify and assert historic rights of way across county and federal lands.
In response, federal land agencies have continued to claim jurisdiction of routes that cross public lands, and said the county must go to court if it believes otherwise. All three government agencies meet regularly to hash out public land access issues.
Commissioners argue roads and trails in use before the creation of the San Juan National Forest in 1905 or routes established before Revised Statute 2477 was repealed in 1976 should automatically remain open as public rights of way.
To assert their position, commissioners passed Resolution 24-2020 in December, which includes a map of historic roads. The resolution claims 105 historic routes across lands administered by the Tres Rios District of the Bureau of Land Management and 33 historic routes that pass over lands administered by U.S. Forest Service on the San Juan National Forest.
The resolution is a supplement to a 2018 resolution that identified 17 rights of way on San Juan National Forest lands, some of which were not within the county.
The county dispatched a letter Dec. 29 to the Tres Rios BLM office and San Juan National Forest’s Dolores District regarding the county’s updated historic road map and public access.
Jurisdiction debateRevised Statute 2477 is a federal law passed in 1866 to encourage settlement of the U.S. West by granting public right of way for construction of roads across public lands.
When the statute was repealed in 1976 under the Federal Land Management and Policy Act, it put road management under the control of the federal government.
But many counties, including Montezuma, claim any route established before the repeal date of RS2477 should retain its historic existing uses and rights of way.
The county letter to federal agencies states the county has been inventorying public rights of way since the county was founded in 1889.
It says “RS 2477 was a self-executing law. When the conditions were met, the right-of-way grant was made. No further action by the grantee or by Congress was necessary to validate it.”
According to the letter, Montezuma County believes historic routes, absent formal abandonment process, are considered open to the public. When a federal land agency is developing a road management action, consideration should be given to local road plans, the letter says, and local government should have “meaningful input.”
However, the national forest has a specific process for counties claiming historic RS2477 routes, officials said. They require a legal claim in federal court, and the burden of proof is on the county.
They reject the notion that RS2477 claims of right of way are automatic and said a person can still get a ticket for improperly using a road or trail managed by the Forest Service or BLM.
The U.S. Forest Service sees the county road resolution as a “public statement” that the board of county commissioners has “reviewed documents pertaining to the routes listed and have determined, in their opinion, that they potentially qualify for adjudication under RS 2477,” stated Dolores District Ranger Derek Padilla in an email.
“Until a competent court of jurisdiction has adjudicated a public right of right of way in favor of a public road agency (the County for example), the subject route is under the jurisdiction of the administrative agency it is on and is subject to the rules and regulations of that agency.”
He added that if access rules are violated on forest routes, a violation notice could be issued to the offender.
The BLM also asserts jurisdiction of its roads and trails, said Connie Clementson, field manager of the BLM Tres Rios Office, and that violations could lead to citations. The county could also make a jurisdictional claim through the courts.
Rather than a court case, the BLM would prefer a “collaborative approach with the county to provide access to public lands,” an effort that has been ongoing, Clementson said.
She said determining the level of road access is a balancing act that weighs recreational uses with protection of natural resources, solitude and cultural sites.
“We have worked collaboratively with the county to provide access to BLM lands and the monument because we both want that,” she said.
‘A sharper look’Better access for Painted Hand ruin and for the southern portion of the monument are two priorities of the BLM.
The county and BLM recently partnered to expand parking at the Sand Canyon Trailhead. They recently worked together to secure public access to an previously isolated piece of BLM lands south of Summit Lake.
James Dietrich, county natural resources director, said the county historic road resolution and map are a way of letting federal land agencies know which roads the county believes should remain open.
“The important thing is that when federal agencies look at a road that is definitely historic, they need to take a sharper look at management and planning to make sure it fits with county plans,” he said.
A few examples cited by the county for improved access are:
The Lost Canyon Stockway was a historic sheep-herding route that skirted the upper canyons of the Mancos River basin in the foothills of the La Plata Mountains. Portions of the historic route have been closed, and the county wants them reopened for motorized use. Returning single-track motorcycle use on the Lower Bear Creek trail is also wanted by the county.The county has heavily researched making a potential RS2477 court claim on the Dolores-Norwood Road (Road 31) above Dolores. They want jurisdiction from the Forest Service in order to drop fees for commercial haulers and to open it up to OHV use.On Canyons of the Ancients National Monument, the county would like the BLM to consider motorized use on the historic Mockingbird Mesa Road, and on Road 4525 northeast of the old Ismay Trading Post off County Road G, Dietrich said.[email protected]