Southern Utah Wilderness Alliance v. Bureau of Land Management

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 Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (FLPMA), Pub.L. No. 94-579 § 706(a), 90 Stat. 2743. This statute, commonly called “R.S. 2477,” remained in effect for 110 years, and most of the transportation routes of the West were established under its authority. During that time congressional policy promoted the development of the unreserved public lands and their passage into private productive hands; R.S. *7412477 rights of way were an integral part of the congressional pro-development lands policy.

In 1976, however, Congress abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation. See FLPMA, 43 U.S.C. § 1701 et seq. As part of that statutory sea change, Congress repealed R.S. 2477. There could be no new R.S. 2477 rights of way after 1976. But even as Congress repealed R.S. 2477, it specified that any “valid” R.S. 2477 rights of way “existing on the date of approval of this Act” (October 21, 1976) would continue in effect. Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976). The statute thus had the effect of “freezing” R.S. 2477 rights as they were' in 1976. Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir.1988), overruled on other grounds by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 971 (10th Cir.1992) (en banc).

The difficulty is in knowing what that means. Unlike any other federal land statute of which we are aware, the establishment of R.S. 2477 rights of way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested. As the Supreme Court of Utah noted 75 years ago, R.S. 2477 “ ‘was a standing offer of a free right of way over the public domain,’ ” and the grant may be accepted “without formal action by public authorities.” Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1929), (quoting Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901)). In its Report to Congress on R.S. 24,77: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands 1 (June 1993), the Department of the Interior explained that R.S. 2477 highways “were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal land under this authority.”

To make matters more difficult, parties rarely had an incentive to raise or resolve potential R.S. 2477 issues while the statute was in effect, unless the underlying land' had been patented to a private party. If someone wished to traverse unappropriated public land, he could do so, with or without an R.S. 2477 right of way, and given the federal government’s pre-1976 policy of opening and developing the public lands, federal land managers generally had no reason to question use of the land for travel. Roads were deemed a good thing. Typical was the comment by the great nineteenth-century Michigan jurist, Thomas Cooley, that “[s]uch roads facilitate the settlement of the country, and benefit the neighborhood, and in both particulars they further a general policy of the federal government. But they also tend to increase the value of the public lands, and for this reason are favored.” Flint & P.M. Ry. Co. v. Gordon, 41 Mich. 420, 2 N.W. 648, 653 (1879). Thus, all pre-1976 litigated cases involving contested R.S. 2477 claims (and there are dozens) were between private landowners who had obtained title to previously-public land and would-be road users who defended the right to cross private land on what they alleged to be R.S. 2477 rights of way.

Now that federal land policy has shifted to retention .and conservation, public roads and rights of way in remote areas appear in a different light. Some roads and other rights of way are undoubtedly necessary, but private landowners express the fear *742that expansive R.S. 2477 definitions will undermine their private property rights by allowing strangers to drive vehicles across their ranches and homesteads. Conservationists and federal land managers worry that vehicle use in inappropriate locations can permanently scar the land, destroy solitude, impair wilderness, endanger archeological and natural features, and generally make it difficult or impossible for land managers to carry out their statutory duties to protect the lands from “unnecessary or undue degradation.” FLPMA § 302(b), 43 U.S.C. § 1732(b). They argue that too loose an interpretation of R.S. 2477 will conjure into existence rights of way where none existed before, turning every path, vehicle track, or dry wash in southern Utah into a potential route for cars, jeeps, or off-road vehicles. For their part, the Counties assert that R.S. 2477 rights of way are “major components of the transportation systems of western states,” and express the fear that federal land managers and conservationists are attempting to redefine those rights out of existence, with serious “financial and other impacts” on the people of Utah. Kane and Garfield County (K & G C.) Rep. Br. 21. Thus, the definition of R.S. 2477 rights of way across federal land, which used to be a non-issue, has become a flash point, and litigants are driven to the historical archives for documentation of matters no one had reason to document at the time.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September and October of 1996, road crews employed by San Juan, Kane, and Garfield Counties entered public lands managed by the BLM and graded sixteen roads (or “primitive trails,” as the BLM calls them) located in southern Utah. The Counties did not notify the BLM in advance, or obtain permission to conduct their road grading activities. With a few possible exceptions, none of these roads had previously been graded by the Counties, though some of them showed signs of previous construction or maintenance activity. The roads are claimed by the Counties as rights of way under R.S. 2477; some of them are listed on County maps as Class B or Class D highways. Six of the routes lie within wilderness study areas. Nine are within the Grand Stairease-Escalante National Monument. Six others traverse.a mesa overlooking the entrance corridor to the Needles District of Can-yonlands National Park. According to the Complaint filed by a consortium of environmental organizations including the Southern Utah Wilderness Alliance (hereinafter collectively referred to as “SUWA’.’), the areas affected by the Counties’ road grading activities “contain stunning red-rock canyon formations, pristine wilderness areas, important cultural and archeological sits [sic], undisturbed wildlife habitat, and significant- opportunities for hiking, backpacking and nature study in an area largely undisturbed by road or human ... development.”

SUWA protested to the BLM, but these initial protests resulted in no apparent action against the road grading actions of the Counties. In October of 1996, SUWA filed suit against the BLM, San Juan County, and later Kane and Garfield Counties, alleging that the Counties had engaged in unlawful road construction activities and that the BLM had violated its duties under FLPMA, 43 U.S.C. § 1701 et seq., the Antiquities Act, 16 U.S.C. § 431 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., by not taking action. The complaint sought declaratory and injunctive relief requiring the BLM to halt the Counties’ construction activities and enjoining the Counties from further road construction or maintenance without the BLM’s permission. The BLM filed *743cross-claims against the Counties, alleging that their road construction activities constituted trespass and degradation of federal property in violation of FLPMA. In addition to declaratory and injunctive relief, the BLM sought damages to cover the cost of rehabilitating the affected areas.

The Counties defended on the ground that their road improvement activities were lawful because the activities took place within valid R.S. 2477 rights of way. The district court acknowledged that “the validity and scope of the claimed rights-of-way [were the] key to resolving the trespass claims,” Memorandum Decision of May 11, 1998 at 3, but it also concluded that binding Tenth Circuit precedent required that “the initial determination of whether activity falls within an established right-of-way ... be made by the BLM and not the court.” Id. at 3 (quoting Hodel, 848 F.2d at 1084) (internal quotation marks omitted). It therefore stayed the litigation and referred the issue of the validity and scope of the claimed rights of way to the BLM. Although the Counties requested a ruling on “how the ‘findings’ of the [BLM] [would] be utilized” and “the weight [the] court may give such findings,” the district court declined, stating that the weight it would give the BLM’s findings was “not presently at issue.” Memorandum Decision of August 6, 1998, at 2-3.

The BLM then conducted a thorough informal adjudication of the Counties’ purported rights of way. It first issued an instructional memorandum describing the process it would use to determine the validity and scope of the Counties’ asserted rights of way. The memorandum included a general description of the evidence the BLM was seeking: evidence that the subject lands “were withdrawn, reserved or otherwise unavailable pursuant to R.S. 2477,” evidence of “construction” (undefined), and evidence that the claimed right of way was a “highway” (defined as “a thoroughfare used ... by the public for the passage of vehicles carrying people or goods from place to place”). The BLM then sent letters to the Counties, requesting that they “provide ... any and all information or evidence (i.e., documents, maps, etc.) believed to be relevant to the validity or scope of the R.S. 2477 claims.” It also published public notices seeking “any information believed to be relevant” to the Counties’ R.S. 2477 claims.

The BLM then reviewed a variety of documents, including U.S. and county public land records and surveys, maps and aerial photography, wilderness inventory records, and BLM planning, grazing and maintenance records. It also conducted field investigations of each disputed route with representatives of the Counties and SUWA. In April of 1999, the BLM issued draft determinations for review and comment, and in July of 1999 and January of 2000, it issued final administrative determinations, concluding that the Counties lacked a valid right of way for fifteen of the sixteen claims, and that Kane County had exceeded the scope of its right of way in the sixteenth claim, the Skutumpah Road.

SUWA then filed a motion for summary judgment in the district court seeking enforcement of the BLM’s administrative determinations. In response, the Counties sought to introduce evidence in addition to that contained in the administrative record, arguing that the district court should treat the BLM’s determinations merely as discovery evidence on de novo review. The district court disagreed. It stated that “[r]eviews of agency action in the district courts must be processed as appeals,” and therefore characterized SUWA’s motion not as a request for summary judgment but as an appeal of informal agency adjudication. Southern Utah *744Wilderness Alliance v. Bureau of Land Management, 147 F.Supp.2d 1130, 1135 (D.Utah 2001) (emphasis in original) (quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994)). Accordingly, the court limited its review to the administrative record and applied the arbitrary and capricious standard of review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), as construed by this Court in Olenhouse. Id. at 1134-36.

The district court affirmed the BLM’s determinations in their entirety, concluding that the BLM’s factual determinations were supported by substantial evidence in the record and that its interpretation of R.S. 2477 was persuasive under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Id. at 1137. The Counties appealed, and we dismissed their initial appeal for lack of jurisdiction, Southern Utah Wilderness Alliance v. Bureau of Land Management, 69 Fed.Appx. 927, 929-31 (10th Cir.2003), concluding that the district court’s order was not final because it did not rule on the parties’ requests for injunctive relief and damages. On remand, the district court entered a final order granting the requests of SUWA and the BLM for declaratory judgment and denying all other requests for relief. Order of February 23, 2004 at 1-19. The Counties again appeal.

II. JURISDICTION AND STANDING

This Court has jurisdiction under 28 U.S.C. § 1291. The district court’s order of February 23, 2004 constituted a final judgment, resolving all issues outstanding in the case.

San Juan County argues that SUWA lacks standing to challenge the Counties’ purported rights of way. We need not address this issue, however, because the BLM, which does have standing, has raised the same claims and sought the same relief as SUWA, both here and before the district court. A decision on SUWA’s standing, therefore, would in no way avoid resolution of the relevant issues. See Secretary of the Interior v. California, 464 U.S. 312, 319 n. 3, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984); California Bankers Ass’n v. Shultz, 416 U.S. 21, 44-45, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974).

III. TRESPASS CLAIMS AGAINST THE COUNTIES

In its final order of February 23, 2004, the district court granted SUWA’s request for a declaration that:

i. the Counties do not have R.S. 2477 rights-of-way on fifteen of the sixteen routes at issue in the court’s June 25, 2001 Order (that is, all routes except for the Skutumpah route in Kane County); and

ii. Kane County’s construction work and/or proposed construction work on the Skutumpah route exceeded the scope of that right-of-way.

Order of February 23, 2004 at 17. It also granted the BLM’s request for a declaration that:

i. the Counties’ actions at issue in this case did not fall within any established right-of-way and were not authorized by the BLM; and

ii. the Counties’ actions at issue in this case, on public land managed by the BLM without the BLM’s authorization, violated FLPMA and constituted “unauthorized use” trespass under applicable federal regulations.

Id. at 18. These orders may be summarized as (1) a declaratory judgment that the Counties do not have R.S. 2477 rights of way on fifteen of the roads and exceeded the scope of the right of way on the Skutumpah road; and (2) a declaratory judgment that the Counties’ action in *745grading the roads constituted trespass. We turn first to the trespass issue and then to the issue of the validity and scope of the Counties’ R.S. 2477 claims.

The BLM contends, as it did below, that the Counties’ actions in grading and realigning the roads in question without prior notice to or authorization from the BLM constituted trespass, whether or not the Counties have a valid R.S. 2477 right of way on those routes. Under BLM regulations in effect at the time of the alleged trespass, any use of federal lands that requires a right of way or other authorization and “that has not been so authorized, or that is beyond the scope and specific limitations of such an authorization, or that causes unnecessary or undue degradation, is prohibited and shall constitute a trespass.” 43 C.F.R. § 2801.3(a) (2004) (deleted April 22, 2005).1 The BLM contends that the Counties’ actions went beyond prior levels of maintenance, exceeded the authorized scope of prior rights of way (if any), and were performed unilaterally without consultation with federal land managers, and therefore that the Counties’ actions constituted trespass even on the heuristic assumption that they own a valid right of way.

The district court rejected the BLM’s argument. According to the court, “[A]s long as [the] County stays within its right-of-way, the scope of which is to be defined using Utah law, BLM authorization is not required.” Memorandum Decision of October 8, 1997 at 19, ApltApp. Vol. 1 at 136. See also Memorandum Decision of May 11, 1998 at 2-3, ApltApp. Vol. 1 at 228-29 (“The United States originally argued that the road work activities of the Counties were unauthorized, whether or not the Counties held R.S. 2477 rights-of-way over the land in question. That premise has been rejected by the court. The court’s view is that the validity and scope of the claimed rights-of-way are key to resolving the trespass claims asserted by the United States.”). We, however, agree with the BLM, at least in part, and conclude that the holder of an R.S. 2477 right of way across federal land must consult with the appropriate federal land management agency before it undertakes any improvements to an R.S. 2477 right of way beyond routine maintenance. We remand this issue to the district court to determine whether the work performed on the routes in this case went beyond routine maintenance and thus constituted trespass.2

The trespass claim presents an issue of “scope,” which was litigated in this Court in Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988). In Hodel, the issue was whether Garfield County could con*746vert a one-lane dirt road on an established R.S. 2477 right of way into a two-lane gravel (later paved) road. Applying a state law definition of the scope of the right of way, the Court held that improvements on a valid R.S. 2477 right of way are limited to those “ ‘reasonable and necessary for the type of use to which the road has been put.’ ” Hodel, 848 F.2d at 1083 (quoting Sierra Club v. Hodel, 675 F.Supp. 594, 606 (D.Utah 1987) (citing Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 649 (1929))). Relying on Nielson v. Sandberg, 105 Utah 93, 141 P.2d 696, 701 (1943), for the proposition that “an easement is limited to the original use for which it was acquired,” Hodel, 848 F.2d at 1083, the Court held that “the correct ‘reasonable and necessary’ definition fixed as of October 21, 1976.” Id. at 1084. In other words, the scope of an R.S. 2477 right of way is limited by the established usage of the route as of the date of repeal of the statute. That did not mean, however, that the road had to be maintained in precisely the same condition it was in on October 21, 1976; rather, it could be improved “as necessary to meet the exigencies of increased travel,” so long as this was done “in the light of traditional uses to which the right-of-way was put” as of repeal of the statute in 1976. Id. at 1083.

The Hodel court also noted that “Utah adheres to the general rule that the owners of the dominant and servient estates ‘must exercise [their] rights so as not unreasonably to interfere with the other.’ ” Id. (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 158 (1946)). This requires a system of coordination between the holder of the easement and the owner of the land through which it passes. The Court thus concluded that the BLM needed to make an “initial determination” regarding the reasonableness and necessity of any proposed improvements beyond mere maintenance of the previous condition of the road. Id. at 1084-85.

This approach was elaborated and applied in district court cases after Hodel. In United States v. Garfield County, 122 F.Supp.2d 1201 (D.Utah 2000), the court held, with reference to the same road at issue in Hodel, that any road construction within the National Park, beyond “maintenance,” would require advance notification of the Park Service and mutual accommodation between the Park Service and the County. Id. at 1246. In United States v. Emery County, No. 92-C-1069S, ¶ 6 (D. Utah, consent decree entered Dec. 15, 1992), litigation between a Utah county and the BLM was resolved by entry of a consent decree providing for advance notice to the BLM of any improvements beyond routine maintenance “so that both the County and the BLM may be satisfied that the proposed work on the R.S. 2477 highway is reasonable and necessary and that no unnecessary or undue degradation to the public lands would occur thereby.” These decisions are consistent with holdings of circuit courts that changes in roads on R.S. 2477 rights of way across federal lands are subject to regulation by the relevant federal land management agencies. See Clouser v. Espy, 42 F.3d 1522, 1538 (9th Cir.1994) (holding that “regardless whether the trails in question are public highways under R.S.[ ] 2477, they are nonetheless subject to the Forest Service regulations”); United States v. Vogler, 859 F.2d 638, 642 (9th Cir.1988) (holding that proposed improvements to an R.S. 2477 route in a National Preserve is subject to regulation by the National Park Service); see also United States v. Jenks, 22 F.3d 1513, 1518 (10th Cir.1994) (holding that the owner of a patent or common law easement across national forest lands had to apply for a special use permit).

*747Relying on Hodel as well as common law principles governing easements, the Garfield County court stated, “Where rights-of-way and easements are concerned, one party cannot serve as the sole judge of scope and extent, or as the sole arbiter of what is ‘reasonable and necessary.’ ” 122 F.Supp.2d at 1242. “And ‘ordinarily ... no. material changes can be made by either party without the other’s .consent....’” Id. at 1243 (quoting 28A C.J.S. Easements § 173, at 391). The court concluded:

Hodel instructs that “the initial determination of whether the activity falls within an established right of way is to be made by” the federal land management agency.having authority over the lands in question. 848 F.2d at 1085. For the agency to be able to make that determination, Garfield County needs to communicate its plans to the Park Service in a meaningful fashion, and in turn, the Park Service has a duty to evaluate those plans and make the initial determination contemplated by Hodel in a timely and expeditious manner. If the County disagrees with the agency’s decision, it may appeal or seek judicial review. ...

Id. at 1243-44 (footnote omitted).

Although Garfield County involved an R.S. 2477 right of way within a National Park, we see no reason why consultation of this sort is not equally required with respect to R.S. 2477 routes across BLM land. Cf. Clouser, 42 F.3d at 1538 (holding that National Forest Service had authority to forbid opening R.S. 2477 routes to motorized travel). The principle that the easement holder must exercise its rights so as not to interfere unreasonably with the rights of the owner of the servient estate, derives from general principles of the common law of easements rather than the peculiar status of National Parks.' See Jenks, 22 F.3d at 1518 (holding, under “basic principles of property law,” that easement rights are subject to regulation by the Forest Service as the owner of the servient estate). Just as the National Park Service has obligations to protect National Park land, the BLM has obligations to protect the land over which the roads at issue here pass. See FLPMA § 302(b), 43 U.S.C. § 1732(b) (“In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements [and] licences ... the use, occupancy, and development of the public lands”). Unless it knows in advance when right-of-way holders propose to change the width, alignment, configuration, surfacing, or type of roads across federal land, the BLM cannot effectively discharge its responsibilities to determine whether the proposed changes are reasonable and necessary, whether they would impair or degrade the surrounding lands, and whether modifications in the plans should be proposed.

The Counties argue, in effect, that as long as their activities are conducted within the physical boundaries of a right of way, their activities cannot constitute a trespass. But this misconceives the nature of a right of way. A right of way is not tantamount to fee simple ownership of a defined parcel of territory. Rather, it is an entitlement to use certain land in a particular way. To convert a two-track jeep trail into a graded dirt road, or a graded road into a paved one, alters the use, affects the servient estate, and may go beyond the scope of the right of way. See Hodel, 848 F.2d at 1083 (“[s]urely no Utah case would hold that a road which had always been two-lane with marked and established fence lines, could be widened to accommodate eight lanes of traffic”); Jeremy v. Bertagnole, 101 Utah 1, *748116 P.2d 420, 424 (1941) (“the use to which the way has been put measures the extent of the right to use”; “[a] bridle path abandoned to the public may not be expanded, by court decree, into a boulevard”). This does not mean that no changes can ever be made, but that any improvements must be made in light of the traditional uses to which the right of way had been put, fixed as of October 21, 1976. Hodel, 848 F.2d at 1084. The Counties are correct that, under Hodel, the right-of-way holder may sometimes be entitled to change the character of the roadway when needed to accommodate traditional uses, but even legitimate changes in the character of the roadway require consultation when those changes go beyond routine maintenance. Just because a proposed change falls within the scope of a right of way does not mean that it can be undertaken unilaterally-

We note that the Utah legislature in 1993 enacted the Rights-of-Way Across Federal Lands Act, Utah Code Ann. § 72-5-303, which provides that “[t]he owner of an R.S. 2477 right-of-way and the owner of the servient estate shall exercise their rights without unreasonably interfering with one another.” Id. at § 72-5-303(2). This reflects a commendable spirit of mutual accommodation that should characterize the relations of levels of government in our federal system. Both levels of government have responsibility for, and a deep commitment to, the common good, which is better served by communication and cooperation than by unilateral action. See also Restatement (Third) of Property: Servitudes, § 4.10 cmt. a (1998) (“In the absence of detailed arrangements between them, it is assumed that the owner of the servitude and the holder of the servient estate are intended to exercise their respective rights and privileges in a spirit of mutual accommodation.”).

We therefore hold that when the holder of an R.S. 2477 right of way across federal land proposes to undertake any improvements in the road along its right of way, beyond mere maintenance, it must advise the federal land management agency of that work in advance, affording the agency a fair opportunity to carry out its own duties to determine whether the proposed improvement is reasonable and necessary in light of the traditional uses of the rights of way as of October 21, 1976, to study potential effects, and if appropriate, to formulate alternatives that serve to protect the lands.3 The initial determination of whether the construction work falls within the scope of an established right of way is to be made by the federal land management agency, which has an obligation to render its decision in a timely and expeditious manner. The agency may not use its authority, either by delay or by unreasonable disapproval, to impair the rights of the holder of the R.S. 2477 right of way. In the event of disagreement, the parties may resort to the courts.4

In drawing the line between routine maintenance, which does not require consultation with the BLM, and construc*749tion of improvements, which does, we endorse the definition crafted by the district court in Garfield County:

Defined-in terms of the nature of the work, “construction” for purposes of 36 C.F.R. § 5.7 includes the widening of the road, the horizontal or vertical realignment of the road, the installation (as distinguished from cleaning, repair, or replacement in kind) of bridges, culverts and other drainage structures, as well as any significant change in the surface composition of the road (e.g., going- from dirt to gravel, from gravel to chipseal, from chipseal to asphalt, etc.), or any “improvement,” “betterment,” or any other change in the nature of the road that may significantly impact Park lands, resources, or values. “Maintenance” preserves the existing road, including the physical upkeep or repair of wear or damage whether from natural or other causes, maintaining the shape of the road, grading it, making sure that the shape of the road permits drainage [, and] keeping drainage features open and operable — essentially preserving the status quo.

122 F.Supp.2d at. 1253 (footnote omitted). Under this definition, grading or blading a road for the first time would constitute “construction” and would require advance consultation, though grading or blading a road to preserve the character of the road in accordance with prior practice would not. Although drawn as an interpretation of 36 C.F.R. § 5.7, which applies within national parks, the district court noted that: “This construction comports with the commonly understood meanings of the words, the pertinent statutes, agency interpretations, and the past experience of the parties on the Capitol Reef segment, including the experience leading up- to February 13,1996.” Id. We therefore find it applicable to distinguishing between routine maintenance and actual improvement of R.S. 2477 claims across federal lands more generally.

Drawing the line between maintenance and construction based bn “preserving the status quo” promotes the congressional policy of “freezing” R.S. 2477 rights of way as of the uses established as of October 21, 1976. Hodel, 848 F.2d at 1081. It protects existing uses without interfering unduly with federal land management and protection. As long as the Counties act within the existing scope of their rights of way, performing maintenance and repair that preserves the existing state of the road, they have no legal obligation to consult with the BLM (though notice of what they are doing might well avoid misunderstanding or friction). If changes are contemplated, it is necessary to consult, and the failure to do so will provide a basis for prompt injunctive relief. “Bulldoze first, talk later” is not a recipe for constructive intergovernmental relations or intelligent land management.

The record is not sufficient to determine whether the work performed by the Counties in the Fall of 1996 was routine maintenance or construction. On remand, therefore, the parties should be permitted to introduce evidence relevant to the question of trespass, as defined in this opinion.

IV. PRIMARY JURISDICTION OVER R.S. 2477 RIGHTS OF WAY

We turn now to the district court’s holding" that none of the fifteen contested routes falls within a valid R.S. 2477 right of way. We address first the question of whether the district court should have treated this dispute as an appeal of an informal, but legally binding, administrative adjudication, or instead should have treated it as a de novo legal proceeding. We then turn to questions of substantive law.

*750As noted, on May 11, 1999, the district court stayed the litigation in order to allow the BLM to make an initial determination regarding the validity and scope of the Counties’ claimed rights of way. The BLM ruled against the Counties, and SUWA filed a motion seeking to enforce that decision in the district court. The district court treated SUWA’s motion as an appeal of informal agency action and therefore limited its review to the administrative record and employed the arbitrary and capricious standard of review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). In effect, it treated the initial stay as a binding primary jurisdiction referral. The Counties argue that the district court should have treated the BLM’s decision not as a binding primary jurisdiction referral but as an internal, non-binding administrative determination.

The difference is significant. If the doctrine of primary jurisdiction applies, the BLM had authority to determine the validity of the R.S. 2477 claims in question, and judicial review is limited to determining whether there was substantial evidence in the BLM proceeding to support the agency’s determinations. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574-75 (10th Cir.1994). If not, and the district court’s stay of the judicial proceeding and remand to the agency was solely for the purpose of enabling the agency to determine its own position in the litigation, then the district court should have conducted a de novo proceeding based on the plaintiffs’ claims of trespass and requests for declaratory judgments regarding the validity of the R.S. 2477 claims; the parties were entitled to introduce evidence in court (including but not limited to the administrative record), and questions of fact would be decided by the court on a preponderance of the evidence standard.

The circuits are split over the standard of review of decisions whether to recognize the primary jurisdiction of an administrative agency. This Court, like the Fourth and District of Columbia circuits, reviews decisions regarding primary jurisdiction under an abuse of discretion standard. Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1377 (10th Cir.1989); Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 947-948 (10th Cir.1995). Accord, Nat’l Tel. Coop. Ass’n v. Exxon Mobil Corp. 244 F.3d 153, 156 (D.C.Cir.2001); Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir.1996). Other circuits review such decisions de novo. E.g., Access Telecomms. v. Southwestern Bell Tel. Co., 137 F.3d 605, 608 (8th Cir.1998) (reviewing the primary jurisdiction issue de novo without deciding the question); Newspaper Guild of Salem v. Ottaway Newspapers, Inc., 79 F.3d 1273, 1283 (1st Cir.1996); National Communications Ass’n v. Am. Tel. & Tel. Co., 46 F.3d 220, 222 (2d Cir.1995); Int’l Bhd. of Teamsters v. Am. Delivery Ser. Co., 50 F.3d 770, 773 (9th Cir.1995). We adhere to this circuit’s standard of review, while noting that any error of law is presumptively an abuse of discretion and questions of law are reviewed de novo.

Primary jurisdiction is a prudential doctrine designed to allocate authority between courts and administrative agencies. An issue of primary jurisdiction arises when a litigant asks a court to resolve “[an] issue[ ] which, under a regulatory scheme, ha[s] been placed within the special competence of an administrative body.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). If the issue is one “that Congress has assigned to a specific agency,” Williams Pipe Line Co. v. Empire Gas Corp.,