Utah’s poorest county has spent millions on outside lawyers to fight the federal government over land-use controversies in recent years, depleting its financial reserves in the process.
Now county officials are looking for a partial bailout from state taxpayers, hoping to recoup some of the more than $440,000 it has paid a San Diego law firm to construct a legal claim to a three-mile route through Recapture Canyon east of Blanding.
The purported road, now known as D5314, is one of 2,300 routes across public land in San Juan County that the state is seeking title to in a long-running court battle over so-called RS2477 roads. But it’s by far the costliest and most controversial route, standing in as a proxy for many southern Utah communities’ unhappiness with federal oversight of surrounding lands.
Armed with a stack of invoices, County Commissioner Bruce Adams came to a legislative panel Wednesday pleading for $180,000 in reimbursements for what the county paid attorney John Howard, who racked up billings and expenses while marshaling evidence that supported the county’s claim.
“We know this is a big ask. It was an expensive road to research,” Adams told the Constitutional Defense Council. “We’re in a pinch. We need some help. We’re coming to our partners and asking for some help.”
Led by Lt. Gov. Spencer Cox, this council coordinates efforts to assert the state’s interests in federal land management. The request is subject to legislative appropriations and vetting by the Utah Attorney General’s Office, whose staffers were hesitant to offer endorsements to the council.
“We pay other bills for [Howard’s] firm,” the office’s chief civil deputy, Brian Tarbet, told Adams, “so I’m concerned that we’re not being double-billed here.”
San Juan’s $180,000 request was structured under a reimbursement formula established through a program to cover counties’ outside legal costs associated with RS2477 claims, asserted under a frontier-era law that once gave counties title to routes they built across public lands.
Utah is blanketed with suspected RS2477 routes, which are now the subject of lawsuits the state has filed on behalf of 22 counties. Most of those suits are on hold while Kane County has forged ahead on a test-case basis with the help of the Salt Lake City firm Holland & Hart. Kane is scheduled for trial next month on 15 “bellwether” roads, whose disposition could guide settlement talks on similarly situated routes.
“Largely through those efforts, we have developed the body of law that is going to resolve one way or the other all the RS2477 claims throughout the state,” said Tony Rampton, assistant attorney general over public lands. “Because of what Kane County had done for the entire state, they took the spear in hand and spent the money to develop the law that will be used in every single county on every road in the state.”
Nearly all other Utah counties — aside from San Juan — are entirely represented by the attorney general in the RS2477 fight.
Under a formula in place since 2013, a county that litigates on its own gets no reimbursement for the first $200,000 it spends, but up to half for the next $100,000 and 75% for expenditures beyond $300,000. Some lawmakers worry this program could encourage counties to squander tax dollars.
“I don’t want to incentivize counties to go and hire outside counsel just so they can do it and feel like they’re getting their own specialized treatment and having it cost taxpayers when it’s not necessary,” said House Minority Leader Brian King, D-Salt Lake City.
Before the Legislature can award reimbursements, the Attorney General’s Office must review the request and conclude that the legal work advanced the state’s larger interests in the RS2477 campaign and that the amounts sought are “reasonable.”
Previous reporting by The Salt Lake Tribune documented $360,000 in billings San Juan paid Howard in connection with the Recapture Canyon road claim. His firm billed $500 an hour and expensed for first-class air travel.
Recapture Canyon was not included in San Juan County’s initial lawsuit and was proposed for inclusion only after then-County Commissioner Phil Lyman was criminally convicted for organizing a 2014 group ride through the canyon to protest the Bureau of Land Management’s restrictive policies.
The BLM closed the canyon to motorized use in 2006 after discovering Blanding locals had constructed an unauthorized all-terrain vehicle trail through nine miles of canyon below Recapture Dam, damaging some of the area’s many archaeological sites.
Now a Utah House member, Lyman sits on the Constitutional Defense Council, where on Wednesday he gave full-throated support to reimburse costs he himself authorized.
“It’s a road and those who have lived on it and used it their whole life know it’s a road,” Lyman said. “It’s not controversial. It’s a slam-dunk.”
