• August 9, 2006 Letter to BLM Kanab Field Office
• October 13, 2006 Letter to BLM Utah State Office
• Four affidavits from individuals, signed and notarized between August 3, 2006 and September 21, 2006, attesting to their knowledge of the location, age and uses of the Bald Knoll Road
• Photocopies of aerial photographs dated June 28, 1960 and July 16, 1960 (Kane County obtained these copies from the BLM Kanab Field Office). The BLM Kanab Field Office was unable to identify the source of the photos, but determined that they were not BLM photos and, based on the numbering convention on the photos, they were likely prepared by USGS.
• Undated copy of excerpts of a map of Kane County roads with County Road Numbers and with Class “B” Roads labeled 

• BLM Utah State Office Master Title Plats, Historical Index, and Control Document Index documents for T. 40 S., R. 4½ W., SLBM and T. 40 S., R. 5 W., SLBM
• 2002 BLM Kanab 1:100,000 Scale Surface Management Status Map
• 1966 USGS Bald Knoll and Skutumpah Creek 7.5’ Minute Series Topographic Quadrangle Maps
• Cadastral Survey Plats from 1876 to 1974 for T. 40 S., R. 4½ W., SLBM and T. 40 S., R. 5 W., SLBM
•  Lands Program Recommendation and Decision L-2.1 excerpt from the April 22, 1981 BLM Zion Management Framework Plan
• October 26, 1972 BLM – Kane County Road Maintenance Agreement, as amended July 11, 1977
• Map of roads that was attached as an Exhibit to the letter dated June 16, 2000 from the State of Utah to the Secretary of the Department of the Interior providing notice of the State’s intention to file suit under the Quiet Title Act, 28 U.S.C. § 2409a, concerning certain asserted rights-of-way under R.S. 2477 (Notice of Intent to Sue)

BLM personnel conducted field inspections of the Bald Knoll Road on August 17, 2006 and June 1, 2007. The August 17, 2006 examination was a general reconnaissance and photographs and measurements were not taken. The June 1, 2007 examination was more detailed, and the road and adjacent features were measured and photographed at 23 locations. The existing road has a graded natural dirt travel surface that is approximately 12 to 15 feet wide. There is  evidence of past grading resulting in road berms along the entire length of the road, and previous culvert installations at three major drainage crossings. None of  these culverts are operational. One has been removed and placed off of the roadway, and two are filled in and/or exposed and inoperable. Surface head cutting at two drainage crossing locations was observed within the NE¼ of Section 18, T. 40 S., R. 4½ W., SLBM, one resulting in continuing erosion affecting a small (less than one acre) wetland/riparian area.

                       

A post and wire gate is located on Bald Knoll Road where it connects to Mill Creek Road in the NE¼ of Section 17, T. 40 S., R. 4½ W., SLBM. There are two cattleguards on Bald Knoll Road; one in the SE¼ of Section 22, T. 40 S., R. 5 W., SLBM and one at the  intersection with Dead End Road.

 

The 34 photographs in Attachment 2 were taken by BLM personnel on June 1, 2007, and show the physical characteristics and condition of the Bald Knoll Road at 22 points along the road.  

The official land title plats and records in the BLM Utah State Office show that the public lands crossed by the Bald Knoll Road are original public domain lands of the United States and do not include any formerly conveyed Federal lands that have been re-acquired by the United States. There are no other Federal agencies with jurisdiction over the public lands crossed by the Bald Knoll Road.

 

Less than ¼ mile of the Bald Knoll Road crosses privately owned property within the SE¼SE¼, Section 15, T. 40 S., R. 5 W., SLBM.

The official land title plats and records in the BLM Utah State Office show that the public lands over which the Bald Knoll Road crosses were subject to two withdrawals. A withdrawal for the proposed Sevier River National Forest affected all of T. 40 S., R. 4½ W., SLBM from August 20, 1902 until it was revoked on April 12, 1904 and the lands restored on March 7, 1906. Coal Land Withdrawal No. 1 affected all lands where the Bald Knoll Road is located from July 7, 1910 until it was revoked on September 15, 1982. In Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735 (10^th Cir. 2005), the court held that the 1910 coal withdrawal was not a reservation which  would have precluded acceptance of a right-of-way pursuant to R.S. 2477. Various entries for homesteads were approved and subsequently either conveyed or relinquished and cancelled from the 1910s through the late 1930s. These entries were not reservations that would have precluded establishment of R.S. 2477 rights-of-way. Consequently, the official land title plats and records show that a right-of-way could have been established pursuant to R.S. 2477 on the public lands crossed by the Bald Knoll Road from July 26, 1866 to August 20, 902 and from August 20, 1906 to October 21, 1976.  

The affidavits provided to the BLM by Kane County in support of its request for an NBD for the Bald Knoll Road indicate that some of its segments existed as early as the 1930s, with other segments existing in 1940s and 1960s. One affidavit indicated that the north-south segment of Bald Knoll Road in Sections 14, 15, 22, 27 and 34, T. 40 S., R. 5 W., Salt Lake Base and Meridian existed as early as the late 1800s. The United States Geological Survey (USGS) Bald Knoll and Skutumpah Creek topographic quadrangles (7.5 minute) show the entire alignment of the Bald Knoll Road as a vehicular dirt road in its current location. These topographic quadrangles are based on 1964 aerial photography and were field checked in 1966 by USGS personnel. In its request for an NBD, Kane County did not identify what it believed was the ten-year period of time during which the use of the Bald Knoll Road qualified it as a public highway under applicable Utah law. However, based on the BLM’s review of the USGS quadrangles and the other above-referenced information, it appears that the Bald Knoll Road was used continuously as a public thoroughfare for at least a period of 10 years beginning in 1964, and thus constitutes a public highway under the Utah law in effect at that time (Utah Code Ann. § 27-12-89).     

The affidavits provided to the BLM by Kane County in support of its request for an NBD for the Bald Knoll Road indicate that its uses prior to October 21, 1976,  the date R.S. 2477 was repealed, included: access to private property; hunting; exploration and development for coal and other minerals; tourism; recreation including camping, picnicking, hiking and sightseeing; farming; livestock operations; wood gathering and post cutting; weed control; and general public  travel in and through the area. In addition, the modes of transportation included motor vehicles of various classes (car, pick-up truck, commercial trucks including semi-trailers).   

Based on its review of the above-referenced information and relevant authorities, the BLM Utah State Office has made a preliminary determination, for its management purposes only, that the Bald Knoll Road as identified above is a valid R.S. 2477 right-of-way. Pursuant to BLM Washington Office Instruction  Memorandum No. 2006-159, this preliminary determination shall be made available for public review and comment for a thirty (30) day period ending August 10, 2007, after which the BLM Utah State Office will review all of the  information and evidence and complete an NBD for the Bald Knoll Road.