By Heather Hansen, Red Lodge Clearing House
This spring, to fulfill a friend’s birthday wish, we traveled from Colorado into Utah, dropped south off of I-70 near Green River on Utah Highway 24, and drove about 30 miles before leaving the pavement. Our destination was the West Rim trailhead in the Horseshoe Canyon Unit of Canyonlands National Park. To get there we bumped and lurched over 30 miles of washboard dirt road, the final few miles of which reminded me of my last dentist appointment.
It took some effort to reach the Great Gallery and we saw just a handful of people over several hours, one of whom was a national park ranger. Its remoteness, and the quiet that enables introspection there, is part of what makes a visit to Horseshoe Canyon an uncommon and moving experience.
But a debate that’s spanned a decade in Utah, and may soon come to a head, could make places like Horseshoe Canyon more accessible to the masses by leveling, widening and/or paving historic “highways.” Local government argues it’s a necessity, but wilderness watchers are worried that fragile desert ecosystems and archaeological treasures are at risk.
Understanding what’s going on now with contested rights-of-way in Utah, requires going back to 1866 -- the year the current Capitol Dome was completed; a brazen bank robbery made Jesse James a household name and; while the country was healing from the Civil War -- which had ended only the year before -- settlers were urged West to populate then-barren landscapes.
The 1866 Mining Act was enacted to encourage economic growth through resource extraction. It included what’s now known as Revised Statute 2477 which said, curtly, “…The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” With it, the federal government gave plucky pioneers and prospectors permission to cut routes wherever they needed to, without authorization. This was 30 years before Utah became a state.
R.S. 2477 was a straight-forward statute that remained the law of the land until 1976, when it was repealed by the Federal Land Policy and Management Act (FLPMA). The repeal didn’t terminate rights-of-way conveyed under R.S. 2477, but required that applicants disclose their plans for use of historic routes, which must ultimately comply with a federal mandate to guard the environment while allowing for resource development. States must also prove the validity of R.S. 2477 routes which, in Utah, means demonstrating 10 years of continuous use prior to the repeal (or before reservation, in the case of national parks and monuments).
Earlier this month, all but a handful of the state’s 29 counties filed lawsuits against the Department of the Interior (DOI) and the Bureau of Land Management (BLM) seeking title to those R.S. 2477 rights-of-way. The state also signed on as a plaintiff in each suit. The suits are progressing now, as a 12-year statute of limitations is due to expire on June 14 (the State of Utah notified the DOI in 2000 that it planned to sue over the rights-of-way).
The true purpose of the lawsuits is more difficult to ascertain. Utah is claiming that access by residents to historic roads is jeopardized by the fed’s unwillingness or inability to resolve R.S. 2477 assertions. Governor Gary Herbert’s front-man on environmental issues, Alan Matheson, has said that the suits are intended to prod the federal government into “reasonable and practical” negotiations over the routes. The Salt Lake Tribune reported that, at a recent news conference, Utah Chief Deputy Attorney General John Swallow said the routes “are important for family recreation and hunting, economic access to water and minerals, and desert safety.” He said, “The state's intent is not to pave anything. The intent is to perfect the right of Utah and Utahns to access these historical roads.”
But that seems to fall short of what a commissioner in Duchesne County, one of the counties suing the feds, hopes to get out of it. Kent Peatross said, “We don't need a road down every canyon and ridge. But we need access that allows the general population to experience the public lands in a reasonable manner. Not everyone can walk, not everyone has a horse, and so a vehicle is the easiest and most common way to do that.”
Talk of this type of universal access through largely undeveloped areas fuels opponents, including the Southern Utah Wilderness Alliance and the Sierra Club, who argue that transferring management of R.S. 2477 roads to local government could despoil valuable landscapes, sensitive species and priceless cultural relics. The fight isn’t about families’ access to private land and favorite picnic spots, they say, but rather state access to resource extraction opportunities.
Others call it a stunt by a petulant state which simply wants to wrest control from an intrusive parent more of the land within its borders, exemplified by the legislation signed by Governor Herbert last March which demands control of about 30 million acres of federal land in Utah, including national monuments and parks.
Indications of who will win the R.S. 2477 battles when they enter the courts are hardly illuminated from past litigation. In 2010, a U.S. district court recognized that Utah’s Kane County had title to a 27-mile stretch of Skutumpah Road within the boundaries of the Grand Staircase-Escalante National Monument, and to four other roads. But, when San Juan County and the State of Utah recently sued the federal government over access to Angel Arch in Canyonlands National Park via Salt Creek Canyon, a federal judge sided with the DOI. In its conclusion, the court said, “For purposes of R.S. 2477, at least absent proof of continuous public use as a public thoroughfare for the requisite amount of time, a jeep trail on a creekbed with its shifting sands and intermittent floods is a by-way, but not a highway.”
I’ve considered Utah’s R.S. 2477 access fight in light of that fact -- if giving locals title to those routes increases inclusiveness, and allows more people to enjoy the land that’s been reserved for all of us -- why shouldn’t blacktop be slapped down and tour buses herded in? So I asked her about it. She replied that, if I thought the character of the place would change -- if the spirits that hover within those canyon walls would be driven out by such activity -- she’d rather see it only in photographs. And I do.
Essays in the Range blog are not written by High Country News. The authors are solely responsible for their content.
Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.
Images of Horseshoe Canyon courtesy the author; map of contested roads courtesy Southern Utah Wilderness Alliance.