A road less traveled

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A Tenth Circuit Court ruling keeps a Utah route closed to motorized use and may affect other RS 2477 claims

In a decision hailed by environmentalists but decried by counties and motorized-use advocates in Utah, the Tenth Circuit Court of Appeals has affirmed a lower court’s decision that a route in Canyonlands National Park does not qualify as a historic road..

San Juan County and the state of Utah had sued the National Park Service under a statute known as RS 2477 to claim authority over a 12.3-mile route along Salt Creek in the park’s Needles District after the Park Service closed much of the route in 1998.

On April 25, the Tenth Circuit Court released a 27-page decision upholding a district judge’s previous ruling in favor of the federal government and against the county’s claim.

“The state and county failed to carry their burden of establishing ten years of public use of the Salt Creek Road as a public thoroughfare prior to reservation of Canyonlands National Park in 1964,” the three-judge panel wrote.

On the Monday following the ruling, San Juan County Commissioner Bruce Adams said he was saddened by the decision.

“San Juan County is very disappointed in the Tenth Circuit Court decision,” he told the Free Press by phone, “and we are weighing our options with our attorneys and we haven’t fully analyzed or decided what we’re going to do at this point.”

He said the county commissioners had not discussed the issue much at their regular meeting earlier that day.

“We’re kind of waiting for our attorney to get back with us and make a recommendation,” Adams said. “But it’s not good. This is not a good decision for us or for the county.”

But Paul Henderson, assistant superintendent for the Park Service’s Southeast Utah Group ( which includes Canyonlands and Arches national parks), said the ruling pleased the agency.

“In a nutshell, we’re very happy with the decision,” he told the Free Press on May 29, just a few days before he was scheduled to retire after 40 years with the Park Service. “As you well know, this thing in one form or another has been litigated since shortly after our backcountry plan went into effect in 1995. It’s gone through a lot of twists and turns since then, but it seems this may be the end.”

The environmental groups that had fought the RS 2477 claim as “friends of the court” in the case were jubilant.

“It’s a great decision for that canyon and the protection of one of the crown jewels of Canyonlands National Park,” said Stephen Bloch, legal director for the nonprofit Southern Utah Wilderness Alliance, in a phone interview. SUWA, the Grand Canyon Trust, the Wilderness Alliance, the Sierra Club, and the National Parks Conservation Association were amicus curiae in the case.

Barring a decision by the Tenth Circuit Court to rehear the case en banc (a rare occurrence) or an appeal to the U.S. Supreme Court, which might not even choose to hear it, “this means vehicle use will be prohibited going forward,” Bloch said.

Furthermore, he said, the decision will have impacts on thousands of other road claims that have been put forth by the state of Utah involving old routes across public lands. It could also affect similar claims in other states covered by the Tenth Circuit (Colorado, New Mexico, Wyoming, Oklahoma, and Kansas).

Adams agreed the decision could have far-reaching implications. “Absolutely,” he said. “It is going to have a big effect on RS 2477. There’s no question.”

The park’s icon

The dispute over the Salt Creek road involves a conflict between two of the park’s most treasured resources.

Salt Creek is the only perennial waterway in Canyonlands other than the Green and Colorado rivers. It originates in the Abajo Mountains and meanders 32 miles to the Colorado through an otherwise arid landscape, supporting an abundance of wildlife – from frogs to birds to bobcats and even roaming black bears. The Salt Creek area is also rich in archaeological resources, primarily Ancestral Puebloan.

“The fact that there’s a perennial water source there has been drawing people for a long time,” Henderson said.

At the southern end of the creek lies Angel Arch, a stunning rock formation that appears to have an angel standing against one side. With the Salt Creek route closed to motorized use, only hikers and horseback riders are able to visit the scenic site.

“Angel Arch is the icon of Canyonlands,” Adams said. “It was the reason that Congress designated Canyonlands. It was because of Angel Arch, and now the public can’t travel up to it. We want it available to the public to be able to go see that icon.”

Henderson, however, said Angel Arch wasn’t the only reason the park was created. “It was certainly a feature, but if you read the congressional testimony that went on when the park was established, it’s not quite right to single out Angel Arch,” he said.

“Congress talked about an assemblage of geological features, a network of old mining roads, the confluence of the rivers, so there were a lot of reasons. Angel Arch was one of the reasons, but Congress did not talk about a road to Angel Arch.”

Even without motorized access, the route is popular. In March and April of this year, 1,286 people did overnight trips in the Salt Creek area, according to Keri Nelson, a park ranger and backcountry supervisor in Canyonlands. A permit is required for overnight use, but there is no way to track the number of day users.

Horseback visits are also allowed, but the number of horses is limited.

Lock and chain

Before 1995, vehicles were allowed to drive to the arch without restriction. The route largely follows the creek, crossing in and out of it. On holiday weekends there were sometimes more than 75 intrepid Jeeps, ATVs and other vehicles a day grinding along the sandy bed and splashing through the water, according to the Park Service. Oil and other automotive fluids shimmered on the water’s surface.

In 1995, concerned about impacts to the area and its wildlife, the park adopted a backcountry management plan that limited the number of vehicles each day, and installed a gate at the north end of the road. Permits were required to travel by vehicle beyond that point.

SUWA filed suit against that plan, saying it was still too lenient, and in 1998 the district court threw out the park’s permit system. The park then installed and locked a second gate across the creek at Peekaboo Spring, a campground a few miles south of the first gate; with a permit, vehicles were (and still are) allowed to travel down to the second gate, but no farther.

Motorized-use advocates appealed, and the case was remanded to the original court for more study. The agency kept the gate closed in the interim, and in December 2000, San Juan County’s sheriff at the time, Mike Lacy, and a few other county employees removed the lock and chain from the gate at Peekaboo Spring and took down “Road Closed” signs.

Further studies done for the park found that vehicle use was harmful to resources in the corridor, and in June 2004 the Park Service announced a final rule ending motorized access beyond Peekaboo Spring. That decision did not sit well in San Juan County, where motorized use is a passion. The county promptly filed suit in U.S. District Court, claiming an RS 2477 right-of-way along Salt Creek.

Ten years of use

RS 2477, which dates from 1866, states that “the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” Intended to encourage mining and development of the West, it basically meant that highways could be built across public lands that had not been “reserved” for use as national parks, national forests, and similar purposes.

Congress repealed RS 2477 in 1976 but said that valid, established roads retained their rights-of-way. However, there is no single clear definition of what constitutes an RS 2477 road.

Under Utah law, proving an RS 2477 claim requires showing 10 years of continuous use of the road by the public.

In the case of Salt Creek, that would mean 10 years of use before the creation of Canyonlands National Park, which happened in 1964.

At a trial in 2009, San Juan County and the state of Utah offered evidence of cattle herding and grazing in Salt Creek Canyon starting around 1891, use by Boy Scouts and tourists starting around 1950, and some mining and exploration for uranium and oil in the 1950s.

But the district judge found that the evidence was not enough to show the road had been in continuous public use as a public thoroughfare for a 10-year period before 1964.

“During the 1950s, a visit to Salt Creek Canyon and Angel Arch was an experience marked by pristine solitude,” the judge wrote in his decision. “Continuous public use of the plaintiffs’ claimed right-of-way as a public thoroughfare to reach Angel Arch or anywhere else in Salt Creek Canyon—had not yet begun by September of 1954, and indeed did not commence for some time thereafter.”

In reaffirming that judge’s decision, the Tenth Circuit said, “The state and county put on a strong case, but so did the United States. In the end, whether the public used the claimed road continuously for ten years prior to the reservation of the park is a factual issue. . . . We have carefully reviewed those determinations [by the trial judge], and they do not leave us with a ‘definite and firm conviction that a mistake has been made.’”

‘Piece in the puzzle’

Bloch said the ruling will have broad ramifications for similar cases “where streambeds or cow paths or faded two-tracks in the desert” are being claimed under RS 2477.

“The Circuit Court agreed that use of claimed 2477 rights-of-way by permitted users [such as ranchers with grazing permits] does not count for the 10 years of permitted use under Utah state law,” Bloch said.

He said the decision could have implications for another case before the Tenth Circuit involving 12 routes in and around Grand Staircase-Escalante National Monument. Bloch said a district judge in that case had ruled in favor of Kane County’s road claims, but based his conclusion on evidence of use by ranchers and adjacent landowners.

“I think this will be the basis for a reversal of the case by Kane County,” Bloch said. “Utah’s other claims rely heavily on claims by ranchers and I think we’re building the case that that kind of use is not going to count.

“Remarkably, as we’re approaching the 40- year anniversary of the Federal Land Policy and Management Act, which repealed RS 2477, we still don’t have a good body of law in terms of determining which current state and county rights-of-way are valid, so the Salt Creek decision is another piece in the puzzle of determining which kinds of use will not count.”

‘Really a surprise’

San Juan County’s Adams said the decision was a blow.

“It was really a surprise to us,” Adams said. “We felt like we had proved our case. We’re really disappointed that they didn’t recognize cattlemen and the public on horses and wagons who had used that creekbed as a road.”

Adams – who was not in office when the county commission filed the Salt Creek claim – said he did not regret continuing to spend money to fight the battle, which has reportedly cost the county close to $2 million.

“It was in the process when I got into office and I have no regrets about supporting what had been started before me,” he said.

But Bloch said Utah and its counties need to be realistic about what types of RS 2477 cases to pursue in the future.

“It cost the state of Utah’s taxpayers millions of dollars for the state and county to unsuccessfully pursue this case,” Bloch said. “The state still has 14,000 road claims it wants to litigate. It needs to get real about what types of claims are important.

“Stream bottoms and cow paths and roads to nowhere that are only intended to defeat things like congressional wilderness designations – those claims should be abandoned. It’s time to move on so we don’t spend more millions of dollars and more tens of years.”

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