SOUTHERN UTAH WILDERNESS ALLIANCE, a Utah non-profit corporation, and Sierra Club, a non-profit corporation, Plaintiffs-Appellees,
v.
BUREAU OF LAND MANAGEMENT, Defendant-Appellee, and
San Juan County, Utah; Tyler Lewis, in his official capacity as San Juan County Commissioner; Kane County, Utah; and Garfield County, Utah, Defendants-Appellants.
Norman Carroll, in his official capacity as Kane County Commissioner; Joe Judd, in his official capacity as Kane County Commissioner; Stephen Crosby, in his official capacity as Kane County Commissioner; Louise Liston, in her official capacity as Garfield County Commissioner; D. Maloy Dodds, in his official capacity as Garfield County Commissioner; Clare M. Ramsay, in her official capacity as Garfield County Commissioner, Defendants.
Natural Resources Defense Council, National Parks Conservation Association; The Wilderness Society; Alaska Center for the Environment; Alaska Wilderness League; Arizona Wilderness Coalition; California Wilderness Coalition; Colorado Environmental Coalition; Colorado Mountain Club; Grand Canyon Trust; Greater Yellowstone Coalition; Idaho Conservation League; National Wildlife Federation; National Wildlife Refuge Association; New Mexico Wilderness Alliance; Northern Alaska Environmental Center; San Juan Citizens Coalition; Southeast Alaska Conservation Council; Wyoming Outdoor Council; Property Owners for Sensible Roads Policy; Jana Smith; Ron Smith; States of Utah, Idaho, and Wyoming, Amici Curiae.
United States Court of Appeals, Tenth Circuit.https://leagle.com/images/logo.png
September 8, 2005.
As Amended October 12, 2005.
Attorney(s) appearing for the Case
Shawn T. Welch (Robert S. Thompson, III, with him on the briefs), Pruitt Gushee, Salt Lake City, UT, for Defendants-Appellants San Juan County and San Juan County Commissioner Tyler Lewis.
Ralph L. Finlayson, Assistant Attorney General (Mark L. Shurtleff, Attorney General, with him on the briefs), Salt Lake City, UT, for Defendants-Appellants Kane and Garfield Counties.
Jerome L. Epstein, Jenner & Block LLP, Washington, D.C. (Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT, Edward B. Zukoski, Earthjustice, Denver, CO, and William H. Hohengarten, Jenner & Block LLP, Washington, D.C., with him on the brief), for Plaintiffs-Appellees Southern Utah Wilderness Alliance and Sierra Club.
Todd S. Aagaard, Attorney, Appellate Section, Environment & Natural Resources Division, Department of Justice, Washington, D.C. (Thomas L. Sansonetti, Assistant Attorney General, M. Alice Thurston, Attorney, Appellate Section, Environment & Natural Resources Division, Department of Justice, Washington, D.C., Paul M. Warner, United States Attorney, Salt Lake City, UT, and Daniel D. Price, Assistant United States Attorney, Salt Lake City, UT, with him on the brief), for Defendant-Appellee Bureau of Land Management.
Mark L. Shurtleff, Utah Attorney General, and J. Mark Ward, Assistant Attorney General, Salt Lake City, UT; Steven W. Strack, Deputy Idaho Attorney General, Boise, ID; and Patrick J. Crank, Wyoming Attorney General, Cheyenne, WY, filed an amici curiae brief for the states of Utah, Idaho, and Wyoming, in support of Appellants San Juan, Kane, and Garfield Counties.
Michael S. Freeman, Faegre & Benson LLP, Denver, CO, filed an amici curiae brief for Property Owners for Sensible Roads Policy and Jana and Ron Smith, in support of Appellees Southern Utah Wilderness Alliance, Sierra Club, and the Bureau of Land Management.
Rebecca L. Bernard, Trustees for Alaska, Anchorage, AK, and Louis R. Cohen, James R. Wrathall, and Brian M. Boynton, Wilmer, Cutler, Pickering, Hale & Dorn LLP, Washington, D.C., filed an amici curiae brief for Natural Resources Defense Council, National Parks Conservation Association, The Wilderness Society, Alaska Center for the Environment, Alaska Wilderness League, Arizona Wilderness Coalition, California Wilderness Coalition, Colorado Environmental Coalition, Colorado Mountain Club, Grand Canyon Trust, Greater Yellowstone Coalition, Idaho Conservation League, National Wildlife Federation, National Wildlife Refugee Association, New Mexico Wilderness Alliance, Northern Alaska Environmental Center, San Juan Citizens Coalition, Southeast Alaska Conservation Council, and Wyoming Outdoor Council, in support of Plaintiff-Appellees.
Before HENRY, HARTZ, and McCONNELL, Circuit Judges.
United States Court of Appeals, Tenth Circuit.
McCONNELL, Circuit Judge.
This case involves one of the more contentious land use issues in the West: the legal status of claims by local governments to rights of way for the construction of highways across federal lands managed by the Bureau of Land Management (BLM). In 1866, Congress passed an open-ended grant of "the right of way for the construction of highways over public lands, not reserved for public uses." Act of July 26, 1866, ch. 262, § 8, 14 Stat....
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