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Sean D. Reyes
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RS 2477 Roads: Tenth Circuit Ruling Increases Need for Witnesses

Sept. 8, 2014 — The Tenth Circuit Court of Appeals today issued a decision refusing to rehear certain discrete legal issues raised by the State of Utah and San Juan County regarding the Salt Creek Road in San Juan County.  Although the original panel decision contained favorable rulings on the statute of limitations, the State and County had asked to be reheard on two issues relating to what constitutes public use of an R.S. 2477 road and who counts as a member of the public.  The Court of Appeals left intact the lower court decision that discounting the evidentiary value of witnesses who used the Salt Creek Road prior to the 1950s for cattle ranching pursuant to federal grazing permit.

“While we are disappointed with the decision to leave this issue of who is a permissive user to the discretion of trial courts, rather than clarifying one rule applicable to all, the State will continue to use both the testimony of ranchers and other public user witnesses in future cases,” said Utah Attorney General Public Lands Section Director Tony Rampton. “This ruling increases the important for members of the public who used the roads prior to 1976 for hunting, camping, site-seeing and other general public uses come forward with their testimony to assist in the presentation of the evidence in cases involving R.S. 2477 roads.”

The original panel also held that the question of what constitutes continuous use is left to the discretion of the trial court. Mr. Rampton continued, “We are disappointed that the court did not take the opportunity to define the level of use necessary and adopt the current standard for continuous use as defined by the Utah Supreme Court. We will continue to pursue these road claims seeking and using as much evidence of public use as is available, as we have done since inception.”

Members of the public who used the roads prior to 1976 are urged to offer testimony by contacting local county officials or by emailing publiclands@utah.gov.

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