Southern Utah Wilderness Alliance v. Bureau of Land Management 425 F.3d 735 (10th Cir. 2005) Historically, there was an open-ended grant of the right of way for the construction of highways over public lands, not reserved for public use. So basically, if you wanted to build a road on land owned by the Federal government you could, unless there was an explicit law against it. This was based on a Statute called R.S. 2477 passed in 1866. 110 years later, Congress repealed R.S. 2477, but said that and "valid" rights of way would continue to be in effect. It was difficult to know what that meant. There were no administrative formalities to the roads. You didn't have to register them or anything. So how would the Federal government know whether the road existed when R.S. 2477 was repealed? And what qualifies as a 'road'? 20 years after R.S. 2477 was repealed, three counties in Utah (San Juan, Kane, and Garfield), started paving some old gravel roads on Federal land. The Federal land was a wildlife habitat and had cultural and archeological significance. SUWA stepped in and said that the counties did not have the right to pave the roads. The counties argued that they retained their rights under R.S. 2477. SUWA argued that they did not have rights to the roads. Eventually, BLM conducted an informal adjudication and found that based on historical evidence, the counties did not have a valid right of way to pave the roads. The counties sued. The Trial Court affirmed BLM's decision. The counties appealed. The Trial Court did not perform a de novo review, but instead just affirmed BLM's decision. The Appellate Court remanded. The Appellate Court found that BLM did not have the authority to make binding decisions with regards to R.S. 2477, therefore the case is remanded to the Trial Court to have de novo trial. The Court found that there were two ways that the counties could establish that they had a right of way: The Public Use Standard says that there is a right of way if there was continuous use of the road for 10 years. (Utah's argument). The Mechanical Construction Standard says that a right of way exists if you can show proof that there was some construction on the roadway (it wasn't just a trail). (SUWA's argument). The Court found that the Public Use Standard was the proper standard to apply. That was a victory for Utah, since there were a lot more unimproved trails than paved roadways. The Court did note that if there was evidence of mechanical construction, that could be evidence that the road was in continuous use. The Court found that the burden of proof that there was a right of way lies with the counties. That was a victory for SUWA, since the historical record is not very good, so it would be difficult to prove that the right of way has been in continuous use. The Court found that even if you have a right of way under R.S. 2477, if you want to make any improvements to it, you have to advise the BLM and give them the time to determine the potential effects of the improvement. Under R.S. 2477, even if you have a right of way, there are limits to how much you can improve it (e.g. you can't improve a hiking trail to an 8-lane highway).