High Country News has been around for 44 years now … and sometimes it feels like we’ve been covering certain stories for darn near that long too. Like the Animas-La Plata water project in southern Colorado, meant to fulfill the Utes’ water rights, or the Central Arizona Project, which supplies Phoenix, Scottsdale and other major water users. Another perennial issue is R.S. 2477, that antique law that gave early settlers the right to build highways across public land – and now causes major headaches for land management agencies.
Passed in 1866, Revised Statute 2477, said, in its entirety, that "the right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted." The law was repealed in 1976, but since then, those simple words have been the source of huge controversy and a large pile of lawsuits.
Western counties have used the statute to try to get control over routes on public land, so that they can re-open them to vehicles and improve or maintain them. All too often, though, the routes are not bonafide thoroughfares, but rather dubious, long-abandoned tracks – old prospector trails, cowpaths, and sandy washes, many in national parks, monuments and wilderness study areas (for background see our stories "Road warriors back on the offensive" and "The Road to Nowhere").
Starting in 2011, the state of Utah and 22 counties began filing lawsuits against the federal Bureau of Land Management, seeking rights-of-way on 36,000 miles of old “roads” that they claim were in regular public use before the 1976 repeal. The first of these cases was decided last August, and seemed like a reasonable compromise on roads that had a legitimate history of usage. Juab County got rights-of-way on three routes, but can’t widen or pave them, and it also had to relinquish its other R.S. 2477 claims. The settlement also required the BLM to re-open a closed access road.
Now, another of Utah’s R.S. 2477 lawsuits has just been settled – and the state and county lost. On April 25, a federal appeals court put an end to local attempts to re-open the Salt Creek route in Canyonlands National Park. The Salt Creek Canyon is the largest drainage in the Needles District. The nine-mile-long road down the canyon goes to spectacular Angel Arch, but it crosses Salt Creek countless times. Jeeps and off-highway vehicles traveling the route were polluting the water and harming streamside plants, birds and other wildlife, and in 1998 the Park Service closed the route to vehicles, leaving tourists to walk to the arch. In 2004, Utah and San Juan County filed an R.S. 2477 suit to reopen the Salt Creek route. Seven years later, a district court denied the claim. The state and county appealed, but now the appeal has been denied and the closure upheld. In total, local governments spent more than $1 million fighting for this single road.
Legal experts say the decision is precedent-setting and raises the bar for R.S. 2477 claims: Use of the route by cattle ranchers, prospectors and tourists was not enough to establish the “continuous use” required for a public highway. However, the Utah attorney general’s office and the counties say they intend to keep battling for local control over another 14,000 roads on public lands. And decades from now, we’ll still be writing about this pesky frontier law and its modern fallout.
Jodi Peterson is the managing editor of High Country News.