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When is a Jeep trail not a road?

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Nathan Rice | Jun 02, 2011 11:15 PM

A popular redrock canyon in Southern Utah is the latest proving ground in the undying Western debate over roads on federal public land. Last Friday, a U.S. District Court ruled that an old jeep trail up Salt Creek in Canyonlands National Park is not a "highway," thereby upholding the park's 2004 decision to officially close the creek to motorized vehicles. The ruling could set an important precedent for public lands protection.

After the park's 2004 closure, San Juan County, with the backing of the state of Utah, claimed the old Salt Creek route as their own by invoking Revised Statute 2477, a one-sentence remnant from a 1866 mining law that states, "(T)he right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Those 20 words, originally meant to promote settlement on the frontier, have fueled numerous disputes around the West where locals seek motorized access to federal lands. (See related HCN coverage here and here.)

Angel Arch

Angel Arch from Molar Rock, a popular destination along Salt Creek

in Canyonlands National Park.

An RS 2477 right-of-way would let the County maintain the road for access by off-road vehicles. But U.S. District Court Judge Bruce Jenkins ruled that the County did not show that Salt Creek had been continuously used as a public thoroughfare before the 1964 establishment of the park. Without such proof, he said, "a jeep trail on a creek bed with its shifting sands and intermittent floods is a by-way, but not a highway."

The Southern Utah Wilderness Alliance called the decision "a great day for wilderness," while San Juan County is considering an appeal.

In a 2003 HCN cover story, contributing editor Michelle Nijhuis summed up the history of the contentious statute:

More than a century later, the 1976 Federal Land Policy and Management Act repealed RS 2477 and established more stringent restrictions. The new law contained a catch, however: If states, counties or even individuals could prove that a road had been in continuous use since before 1976 — or before the land was reserved for a park or other protected area — they could still claim it under RS 2477.

This caveat remained relatively obscure until 1988, when President Reagan’s Interior Secretary, Donald Hodel, issued a new official policy on RS 2477. His loose interpretation of the statute said even the most primitive paths could be claimed as rights-of-way.

The Hodel policy was welcome news in southern Utah, where county governments were fighting their state’s growing wilderness movement. Since wilderness areas must be roadless, county commissioners began using RS 2477 claims to literally tear holes in proposed wilderness areas, as well as existing wilderness areas and parks.

The tactic proved popular throughout the West. Some counties even sent bulldozers and road crews to widen and pave routes on public land (HCN, 10/28/96: Utah counties bulldoze the BLM, Park Service).

In the mid-1990s, Interior Secretary Bruce Babbitt attempted to tighten the federal road policy, but the Utah congressional delegation successfully pushed for a moratorium on all RS 2477 policy changes. Babbitt responded with a moratorium of his own, blocking his department from processing nearly all RS 2477 claims.

Under the Bush administration, Interior Secretary Gale Norton made it easier for local governments to claim RS 2477 right-of-ways on federal land, but the final decisions must be made in federal court. Last summer, Kane County, Utah, a hot bed for road disputes, successfully acquired an RS 2477 road on BLM land.

Now, Interior Secretary Ken Salazar is working to resolve RS 2477 disputes through a pilot negotiation project that brings off-roaders, local governments and environmentalists together to work through their differences. Based on the pitch of past conflicts, that could make for a rough ride.

 

Nathan Rice is an HCN intern.

Photos courtesy Flickr user superfluity.

Carolyn Hopper
Carolyn Hopper Subscriber
Jun 16, 2011 03:47 PM
San Juan County is notorious for thinking that the land is there to abuse as the county residents choose and notorious for telling anyone who might say otherwise to go away. What they fail to realize is that they will end up with land truly bare. They join other Utah counties like Kane, in thinking either the Bible or some book of common prayer has instructions given them the right to lay waste to land and not take care of it. I hope they lose the case and the road is off the ATV routes.

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