Debate over what makes a road rages on in Utah

 

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. 

Once parked, we hoofed it across the benchlands and over slickrock domes, weaving around pinyon and juniper, then dropped about 750 feet down into the canyon on an old stock trail. From there, we trudged along the sandy wash bottom for miles to the Great Gallery, an astonishing panel of Native American pictographs and petroglyphs unlike anything I’d ever seen. One large, ethereal figure, painstakingly painted on the Navajo sandstone and standing nearly eight feet high, raises goosebumps in my recollection.

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).

At issue in Utah, which is made up of 64 percent federal land, are more than 25,000 mapped segments that cover 45,000 miles. All are on federal land, some in existing wilderness study areas, proposed wilderness tracts, national parks (Canyonlands and Capitol Reef), national monuments (5,156 miles within Grand Staircase Escalante) and a national recreation area (Glen Canyon).

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.”

When I returned from Horseshoe Canyon I was telling another friend -- a woman who was an avid hiker up until the time she was in a serious car accident this spring -- about its transcendent qualities. When she daydreamed aloud of someday resting her own eyes upon it, I realized, there’s likely no way she could physically get there.

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.

 

High Country News Classifieds
  • WESTERN NATIVE SEED
    Native plant seeds for the Western US. Trees, shrubs, grasses, wildflowers and regional mixes. Call or email for free price list. 719-942-3935. [email protected] or visit...
  • COMMUNITY ORGANIZER
    Western Colorado Alliance for Community Action is seeking two full time community organizers to join our team. Positions can be based in Garfield County, Montrose...
  • EXECUTIVE DIRECTOR
    Join our team as the Association's Executive Director. Working closely with the Board of Directors, take ANWS to the next level of professionalism by managing...
  • FRIENDS OF CEDAR MESA DEVELOPMENT DIRECTOR
    Friends of Cedar Mesa is hiring a Development Director who will have the overall responsibilities of leading our fundraising programs and reports directly to our...
  • WATER RIGHTS/ADJUDICATION BUREAU CHIEF
    Job Overview: Working to support and implement the Department's mission to help ensure that Montana's land and water resources provide benefits for present and future...
  • CLIMATE CHANGE COORDINATOR
    The Greater Yellowstone Coalition is seeking a Climate Change Coordinator to play a lead role in shaping our programs to make the Greater Yellowstone Ecosystem...
  • EXECUTIVE DIRECTOR
    Executive Director Position Announcement POSITION TITLE: Executive Director ORGANIZATION: Friends of Cascade-Siskiyou National Monument REPORTING TO: Board of Directors EMPLOYMENT TYPE: Part-time - Full-time, based...
  • HEALTHY CITIES PROGRAM DIRECTOR
    The Healthy Cities Program Director leads and manages the Healthy Cities Program for the Arizona Chapter and is responsible for developing and implementing innovative, high...
  • CONSERVATION PROGRAM MANAGER
    Grand Staircase Escalante Partners (GSEP) Conservation Programs Manager Job Opening Our Mission: Honoring the past and safeguarding the future of Grand Staircase-Escalante National Monument through...
  • ASSOCIATE DIRECTOR
    Grand Staircase Escalante Partners (GSEP) Associate Director Job Posting Our Mission: Honoring the past and safeguarding the future of Grand Staircase-Escalante National Monument through science,...
  • UNIQUE, ENERGY-EFFICIENT HOME ON ACREAGE NEAR MOSCOW, IDAHO
    Custom-built energy-efficient 3000 sqft two-story 3BR home, 900 sqft 1 BR accessory cottage above 2-car garage and large shop. Large horse barn. $1,200,000. See online...
  • OUTDOOR ADVENTURE BUSINESS FOR SALE
    Missoula Outdoor Learning Adventures (MOLA) - established and profitable outdoor adventure & education business in Missoula, Montana. Summer camp, raft & climb guide, teen travel,...
  • OJO SARCO FARM/HOME
    A wonderful country setting for a farm/work 1350s.f. frame home plus 1000 studio/workshop. 5 acres w fruit trees, an irrigation well, pasture and a small...
  • STEWARDSHIP COORDINATOR
    Join Skagit Land Trust (the Trust), a not-for-profit conservation organization based in Mount Vernon, Washington, and help protect land for people and wildlife. Skagit Land...
  • 2022 SEASONAL SCIENCE EDUCATOR
    The Mount St. Helens Institute Science Educator supports our science education and rental programs including day and overnight programs for youth ages 6-18, their families...
  • POLICY DIRECTOR
    Heart of the Rockies Initiative is seeking a Policy Director to lead and define policy efforts to advance our mission to keep working lands and...
  • CHIEF FINANCIAL OFFICER
    Self-Help Enterprises seeks an experienced and strategic CFO
  • CONSERVATION SPECIALIST - LAND PROTECTION FOCUS
    View full job description and how to apply at
  • RIVER EDUCATOR & GUIDE
    River Educator & Guide River Educator & Guide (Trip Leader) Non-exempt, Seasonal Position: Full-time OR part-time (early April through October; may be flexible with start/end...
  • LAND AND WATER CONSERVATION DIRECTOR
    The Land and Water Conservation Director is a full-time salaried position with the Mountain Area Land Trust in Evergreen, CO. The successful candidate will have...