If you've spent much time wandering around the rural West, especially in southern Utah, you may have come across an extensive network of highways. You might not have recognized them as such, though -- these "highways," in many cases, are nothing more than cow paths, faint two-tracks, and sandy washes. But an antique Western law allows many of them to be considered legitimate public roads.
Revised Statute 2477, passed in 1866, allowed for the construction of highways across public land. It was intended to help settlers move into the West. But in the past decade, it's become a way for counties to claim rights-of-way on old roads, no matter what shape they're in – a move that thwarts potential wilderness designation and opens sensitive areas to motorized use and development (for more background on the law's convoluted history, see our stories "Road warriors back on the offensive" and "The Road to Nowhere").
Since 2011, 22 Utah counties have filed lawsuits against the federal Bureau of Land Management, claiming rights-of-way on 36,000 miles of mostly-dubious roads, many crossing national parks, national monuments, and wilderness study areas. Now, the first court settlement in those lawsuits has been reached. The federal Bureau of Land Management, the state of Utah, Juab County and three environmental groups came up with a way to handle disputed roads in the Deep Creek Mountains wilderness study area west of Salt Lake City.
Earthjustice represented the Sierra Club, Wilderness Society and Southern Utah Wilderness Alliance in the suit, filed in 2005. Under the settlement, Juab County will receive three rights-of-way on routes that it proved had been in use before 1976 (when R.S. 2477 was repealed). However, it cannot widen or pave those roads, which access scenic camping areas and historic sites in the Deep Creek Mountains. The county also agrees to give up its other R.S. 2477 claims, put restrictions on off-highway vehicle use, and waive any future road claims in wilderness areas or proposed wilderness. For its part, the BLM must re-open access to the Camp Ethel area. "This settlement is a great first step and we hope this will serve as a template on how to resolve other public road lawsuits involving similar types of road claims. It also demonstrates that the state and counties will take preservation issues into account when resolving road claims," said Utah Attorney General John Swallow in a statement quoted in Greenwire.
The second settlement in the Utah cases might come in Kane County. In March, a federal district judge approved 12 of the county's 15 R.S. 2477 claims, including on roads that cross the Grand Staircase-Escalante National Monument, but that decision has been appealed by both sides. In an interesting twist, in May two Kane County ranchers filed papers seeking to get roads on their lands removed from the suit; they want those roads to remain private, rather than being opened to the public, reports the Salt Lake Tribune:
Their intervention marks a new front in Utah's road controversies, pitting counties against their own residents.
"Nobody has taken into account these private property owners," (Chris) Odekerken's lawyer, Bruce Baird, says. "The county is in a philosophical fight with the feds. It's a fight between two dinosaurs, and my clients are the rodents scurrying underneath trying to not get squished."
And the dinosaurs may soon be battling over much more than just Utah. R.S. 2477 claims are on the Vermont Law School's "Top 10 Environmental Watch List" for 2013. Such claims could affect millions of acres of public land all across the West -- in Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Washington, and Wyoming. As the school sums it up:
Other western states are likely watching Utah’s land grab, waiting to see what the federal courts will do with these claims. Several states, including Alaska, have earmarked funds for the study of “potential” R.S. 2477 roads, and they will likely increase funding if the Utah lawsuits succeed. States like Nevada, the birthplace of the original Sagebrush Rebellion, are also ready and waiting to jump on the R.S. 2477 bandwagon if the federal courts validate even a small percentage of Utah’s claims.
It'll be interesting to see how the other 29 lawsuits are resolved – and how long it takes. Stay tuned. And if you want even more background on Utah's road wars, check out this book coming in November from historian Jedediah Rogers, called Roads in the Wilderness: Conflict in Canyon Country.
Jodi Peterson is HCN's managing editor.