R.S. 2477 and the Utah road-fetish

Enviros score a quiet victory in war over public lands roads

This is supposed to be a news roundup, but we’ve kind of covered most of the relevant happenings of the last two weeks—i.e. the Biden administration’s flurry of executive orders relating to public lands and the climate—so instead we’re looking at one little news nugget that slipped by almost unnoticed with a (longwinded) emphasis on the context side…

The news: On January 25, the U.S. Supreme Court declined to hear arguments related to Kane County, Utah, v. the United States, thereby upholding an earlier ruling by the 10th Circuit Court of Appeals. By confirming the right of environmental groups to intervene in counties’ lawsuits to claim title to roads crossing public lands, the decision dealt a major blow to the counties and their long-running fight for control over public lands in their midst. Southern Utah Wilderness Alliance and the Wilderness Society, the two intervenors in the case, hailed the decision as a victory.  

The context: Once upon a time the public domain was an up-for-grabs free-for-all. Miners and homesteaders could stake claims to any of its hundreds of millions of acres and ultimately privatize those claims. Large livestock operators turned out hundreds of thousands of head of cattle onto the public domain to gobble up America’s grass without hindrance. And, thanks to a provision in the 1866 Mining Law known as Revised Statute 2477*, pretty much anyone could construct roads, without asking, across the public lands.

Eventually the feds decided to clamp down, in a minimalistic way, on grazing, while leaving the miners, the road-builders, and homesteaders alone. Although the resulting rules were lax and the grazing fees piddling, the big livestock operators weren’t pleased. For the next several decades a low-level public lands war simmered, with ranchers on one side and federal land managers on the other. Then, in 1976, Congress passed the Federal Land Policy and Management Act, or FLPMA, which altered the BLM’s mission from that of facilitating extraction to one of “multiple-use” and stewardship, and the whole thing blew up.

It wasn’t just ranchers fighting the feds now, but ranchers, miners, loggers, corporations, and free-market ideologues doing battle with federal land managers and environmental groups. It wasn’t just about grazing, but also about extractive industries and the way they are regulated, in general. The conflagration came to be known as the Sagebrush Rebellion.

Amid all the scuffle, an important provision in FLPMA went almost unnoticed: The law repealed R.S. 2477, meaning that in order to build a road across public lands, one would have to apply for and obtain a right-of-way from the feds. FLPMA grandfathered in rights-of-way to existing roads so long as they met certain conditions, i.e. they had to be “public highways” that were “constructed” under R.S. 2477 prior to the enactment of FLPMA.

County leaders weren’t particularly concerned about the new provisions because the Sagebrush Rebel counties were already criss-crossed with thousands of miles of roads built during the uranium boom of the fifties and sixties. They had little need to build new roads and they generally assumed that they’d have no problem claiming rights to the old ones if necessary. Virtually no one worried about roads getting closed and so the term “R.S. 2477” was rarely heard outside of bureaucratic circles.

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That all changed in 1990, when the BLM handed over a contentious route to San Juan County, Utah, in Arch Canyon, which gets its start below the Bears Ears and slices a deep chasm through the sandstone of Cedar Mesa before joining Comb Wash. A perennial stream, which is home to sensitive flannelmouth suckers, winds its way along the sandy bottom of the canyon, giving rise to a riparian ecosystem, and cliff dwellings are plentiful in alcoves on the south-facing wall. The canyon now lies within Bears Ears National Monument—and is one of the few areas that wasn’t removed from it by Trump—and it has long been included in proposed wilderness bills. A four-wheel-drive track winds its way up the canyon bottom, crossing the creek dozens of times and providing access to the remote, upper gorge, before reaching a dead-end.

In the 1980s, the BLM granted a permit for a Jeep Jamboree to use the canyon road. The Southeastern (now Southern) Utah Wilderness Alliance sued, pointing to the damage that would be inflicted by dozens of off-road vehicles tearing through the riparian area. In response, the BLM, via R.S. 2477, handed the road over to San Juan County, presumably giving the county the right to say yay or nay to the Jamboree. SUWA and the Sierra Club appealed the decision to no avail

A new front had opened up in the public land wars—roads—and counties had found a potent new weapon to wield, namely R.S. 2477. Counties West-wide launched their own efforts to gain title to everything from maintained gravel roads to two-tracks to barely discernible cow-paths. Sometimes they ran bulldozers over long-overgrown byways in order to meet the “constructed” condition retroactively. It began to look like the public land giveaways of old, long after FLPMA had supposedly ended that era. Environmental groups jumped into the fray to halt the more spurious claims and to block counties from doing whatever they pleased on the roads to which they had legitimate claims. 

That preservationists would want to close roads or keep them in a primitive state is a no-brainer. Many Utah backcountry roads cross stream beds and sometimes road-bed and stream-bed are one and the same. Roads fragment landscapes, they enhance erosion, and liberate dust to be carried away by the wind, degrading air quality. Vehicles traveling on the roads leak oil and other nasty fluids, while also spewing exhaust and disrupting the natural sounds of the desert. A recent study found that a toxicant used to protect car-tires is winding up in streams, killing salmon. Most problematic: a backcountry road serves as a giant hypodermic syringe, injecting humanity and accoutrements deep into the backcountry, where they can do more damage to otherwise difficult-to-access, sensitive areas. 

It is not so easy, however, to discern the motives behind the counties’ collective push to assert control over every little path in their midst, forking out hundreds of thousands of dollars in legal fees in the process. Early on counties bulldozed roads into wilderness-quality lands in order to prevent future Wilderness Area designations. Yet rarely did the contested paths lead to anything of consequence, such as a mine, a private inholding, or a logging area. As the battle wore on, it became clear that wresting control over roads was an end in itself and that the “highways” across public lands were enigmatic symbols—of what, it is not clear. 

In a 1983 history of San Juan County, Utah, editor Allen Kent Powell noted that the Hole-in-the-Rock trail, which Mormon settlers had forged across the desert in order to establish a colony in the southeastern corner of the state, had become an icon of Mormon yore, a symbol every bit as significant as the more famous Mormon Trail. It “illustrates the pioneer ability to conquer, to succeed, and to endure to the end—essential elements in any scheme to colonize and hold the deserts, valleys, and mountains of this vast land.”

It seems that now that symbolism has been extended to the entire 7,700-mile network of roads and paths and two-tracks that spiderweb the county. After all, the aforementioned history, mostly written by residents and published by the Utah State Historical Society, contains not one, but three chapters on roads in the county, one of them penned by notorious Sagebrush Rebel Calvin Black. And the county’s land use plan loftily describes the road system as “a cardiovascular system,” in which, “each road is necessary and each road is important.”

Judging by the money expended on trying to wrest control over it, one of the most important is a ten-mile section of jeep-road up Salt Creek Canyon in Canyonlands National Park, which crossed the only perennial stream in the area a number of times. By the mid 1990s, hundreds of vehicles per month made their way up the road. Vehicles often got stuck in the creek bed, leaked oil or transmission fluids into the water, and were generally wreaking havoc on the sensitive riparian system. 

In 1995 the Park Service put up a gate and limited the number of vehicles allowed to travel the road. This wasn’t enough for the Southern Utah Wilderness Alliance, which sued the Park Service on the basis that allowing any vehicles to travel on backcountry roads impaired park resources and therefore was a violation of the Organic Act of 1916, which established the National Park Service. In 1998 a court ruled in SUWA’s favor on the Salt Creek Road—albeit not on other roads in the park—forcing the closure of the ten-mile section. In 2000, the decision was overturned, but the Park Service went ahead and closed the road themselves, based on updated policies and a new environmental analysis. 

County officials shot back. They asserted, dubiously, that they owned the right-of-way and therefore had the power to open or close the road as well as to maintain or grade or pave the road as they pleased. Yet the purported highway up Salt Creek was not actually constructed so much as it was worn into the ground by cattle prior to the 1964 designation of the Needles District of Canyonlands National park. Aerial photos and maps from the fifties showed no road or even jeep trail in the canyon. 

San Juan County wouldn’t give in, however. In December 2000, San Juan County Sheriff Mike Lacy, one of his deputies, and two other county employees removed the locks on the gate blocking the road, drove up the road, and declared it open to public travel—in clear violation of the law. When Park Service officials locked the gate again, county staff returned and opened it back up. Bill Redd, then-county commissioner, told the Cortez Journal: “We don’t think that our road surfaces are subject to the wishes of some unelected environmental faction that wants to control them.” 

The Park Service made the closure permanent in 2004. The county then filed a “quiet title” lawsuit to the road right-of-way, using RS-2477 as its legal basis. They were joined by a host of motorized access advocates and Sagebrush Rebel ideologues, including William Perry Pendley and the Mountain States Legal Foundation, while environmental groups such as SUWA, the Grand Canyon Trust, and others intervened on the federal government’s side.

As the bureaucracy and legal system failed to deliver, the counties took more extreme measures to wrest control over “their” roads. In 2011, BLM officials built earthen berms to block user-created trails that led to a dispersed camping site in the Indian Creek drainage in San Juan County. When county officials saw the closure, they became enraged, mistakenly believing that the main road-spur, which had been claimed as a county road, had been closed. Even after realizing their error—the main spur had been washed out by a rain storm—the county officials went on the attack in public meetings, and a sheriff’s deputy repeatedly called one BLM staffer a “liar,” inciting locals in the process. After Facebook posts outed the BLM official allegedly responsible for the closure, a young man rode a four-wheeler into the official’s yard and did donuts, leaving deep ruts in the grass. At the local public school, a student verbally accosted the same staffer’s child, telling them that the BLM “are a bunch of idiots” for “illegally” closing a road. 

San Juan County Sheriff Rick Eldredge launched a criminal investigation into the matter. But instead of pursuing the ATV-vandal or other bullies harassing public officials, he went after the BLM officials, themselves, for the “crime” of shutting down a road. “We do not want to be tread on by the federal government,” Eldredge told KSL News, echoing various other Western sheriffs. No charges were filed.

Back at Salt Creek, the county finally lost its longest-running road battle when in 2014 the Tenth Circuit Court of Appeals upheld an earlier court’s ruling: San Juan County had failed to prove that the road in question was a highway prior to the national park’s designation. While the decision didn’t directly apply to dozens of similar cases being batted around courtrooms around the West, it did raise the bar for counties making R.S. 2477 claims.

One of those cases was Kane County vs. the United States, where the county was looking to get title to rights-of-way across public lands for 15 roads on or near Grand Staircase-Escalante National Monument, and to establish the scope of those rights-of-way, or the extent of maintenance or improvements the county could perform on the roads if and when titles were granted.** When SUWA and the Wilderness Society tried to intervene, they were shot down. SUWA appealed. The Tenth District Court of Appeals ruled in SUWA’s favor; that ruling was confirmed on January 25 by the Supreme Court’s refusal to hear the case. 

By no means is this the end of the road-wars or R.S. 2477 claims—dozens of cases are still pending. But it does ensure that environmental groups can jump into the still-outstanding cases and make the case for the public lands. And for the next four years, at least, the folks in Washington are not going to make the county’s task any easier.

 *R.S. 2477 reads: “…the right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted.”
**The most famous R.S. 2477 “scope” case centers around the Burr Trail, a 60-mile route which crosses Grand Staircase-Escalante National Monument and Capitol Reef National Park. The BLM granted a right-of-way for the Burr Trail to Garfield County in the 1980s without a hitch (it was a fairly major route). The BLM then gave the go-ahead for the county to pave the route. The Sierra Club sued, saying this went beyond the scope of the right-of-way, since the road passed through wilderness study areas. Sierra Club vs. Hodel, one of the earliest R.S. 2477 court cases, ended with Garfield County getting the right to pave the western stretch of the road (in pre-national monument times), but not the rest of it. In 2019 the Trump-BLM quietly gave the go-ahead for paving a seven-mile section on the eastern end of the road just outside Capitol Reef National Park. By the time environmental groups had filed a lawsuit to stop it, the paving was already complete.

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And… in other news: Oil companies operating in Alaska will pay negative $20 million in state income taxes this year, according to a report by James Brooks (some crazy details in there) for the Anchorage Daily News. What?! In other words, Alaska’s human taxpayers are going to be giving its corporate taxpayers $20 million. So much for the benefits of being a petro-state.

At his inkstain blog, Western water smarty John Fleck has a concise and enlightening summary of a new report on future management scenarios for the Colorado River and what water users need to do in order to keep hydrated during drier times. The quick take: We gotta use less water. And that’s the optimistic scenario.

The drama is building in northwestern New Mexico regarding whether or not San Juan Generating Station will shut down, as its owner, Public Service Company of New Mexico has planned, or will get retrofitted with carbon capture technology and remain open. Carbon-capture proponents Enchant Energy are worried that PNM will force the closure next year. I’ll be diving deep and wonky into this issue in a near-future Land Desk, but for now read the latest from Hannah Grover at the Farmington Daily Times.

Next time from Land Desk: A Data Dump on COVID-19’s surprising effect on visitation at the West’s national parks and monuments.