There long have been pockets of disgust over federal land ownership in the West, and perhaps nowhere is that stronger than in Utah, where roughly two-thirds of the landscape is federally managed. While the "Sagebrush Rebellion" mightily reared its head some three decades ago, its waning vestiges are on trial this week over whether a creek bed constitutes a road in Canyonlands National Park.
The poster child of the rebellion rose up on July 4, 1980, when several hundred people gathered in Moab, Utah, on the doorstep of both Canyonlands and Arches national parks, to celebrate the nation's birthday...and decry federal land-management policies. From atop a Caterpillar bulldozer, one carrying a few "Sagebrush Rebel" stickers and spouting a U.S. flag from its smokestack, county officials complained about federal land managers. After firing up the crowd, the politicians fired up the bulldozer and, while following the scant traces of an abandoned mining road, worked to scrape a path into a nearby Wilderness Study Area on U.S. Bureau of Land Management lands.
Litigation, not bulldozers, has littered the landscape in Canyonlands these past 11 years over whether Salt Creek should be open to off-road vehicles. The case returns to a U.S. District Courthouse in Salt Lake City on Monday, September 14, when the government squares off against the state of Utah and one of its counties over the question of whether Salt Creek is a road. Born from springs and snowmelt on the Abajo Mountains just about 5 miles the south of the national park, the meandering creek is most vibrant during flash floods that scour the streambed. For the rest of the year, its thin flow depends largely on the output of occasional springs and storms. When enough water fills the creek, it slowly makes its way 32 miles to the Colorado River.
Before the route was closed to vehicles by court order in 1998, most of those who embarked on the suspension-rattling, teeth-gnashing 9-mile or so (one-way) trip came to view spectacular Angel Arch and the surrounding sandstone landscape that is rich with Native American ruins, rock art, and relics.
While the national park came out in January 1995 with a backcountry management plan that placed daily limits on vehicle traffic up Salt Creek -- 10 personal vehicles and two commercial rigs daily, a substantial reduction from the 75 to 100 vehicles a day that would splash up the creek bed during peak holiday weekends, according to Paul Henderson, Canyonlands' assistant superintendent -- the Southern Utah Wilderness Alliance challenged the plan in court on a variety of issues. The one the district court accepted was that this traffic, though reduced, still was impacting resources along Salt Creek and "cannot be reconciled with the (National Park Service) Organic Act’s overarching goal of resource protection.” He immediately directed the park to end vehicle access to Salt Creek.
Since that decision in 1998, the matter has been simmering on the legal front, as appeals have sent the case up to the 10th U.S. Circuit Court of Appeals in Denver and back to the district court. About three years ago, according to Assistant Superintendent Henderson, all parties agreed that the best way to resolve the case was to determine whether San Juan County, a highly visible player during the Sagebrush Rebellion of the 1970s and '80s, had valid "R.S. 2477 rights" to the wash.
R.S. 2477 is a Civil War-era statute initially created to further western expansion. In 1976 Congress repealed the law, but not before providing that any valid R.S. 2477 route existing at the time of the repeal could continue in use. Since then, there have been many debates and many lawsuits over what constituted a valid R.S. 2477 route. These days, some states, counties, and off-road groups have claimed that washes, two-tracks, even cow paths and hiking trails are "highways" that they are entitled to open to motorized travel, according to those who oppose the granting of these rights.
Less than two weeks ago the 10th Circuit clarified the legal mechanics of the issue in a case filed by another Utah county, Kane, over R.S. 2477 rights in the Grand Staircase-Escalante National Monument and Glen Canyon National Recreation Area. In that ruling, the court said those rights had not been adjudicated in a court of law and until such determination was made the federal government had the right through the Supremacy Clause of the U.S. Constitution to close the routes to motorized traffic. (Interestingly, in that 2-1 decision the dissenting judge, Michael W. McConnell, hailed from Utah. Just as interesting is that he retired from the bench after that case.)
When it comes to adjudicating such rights, the bottom line is whether local jurisdictions can demonstrate 10 years' of continuous use on the route in question. In this case, since Canyonlands National Park was established in 1964, the county and state of Utah need to prove there was continuous motorized use of Salt Creek from 1954-1964.
Whether San Juan County can demonstrate that use will be up to U.S. District Judge Bruce Jenkins to decide; he has set aside two weeks for the trial. Certainly the area hasn't been free of human footprints, as the United States' motions in the case show. Down through the years cowboys and farmers who thought they could make a go in the harsh, arid landscape tried to put down roots in the Salt Creek drainage that became part of the national park when it was created. None managed to make much of a go of it, though, as the federal government's motion states:
Historic records of this area indicate that in approximately 1890, Lee Kirk, a homesteader, built a cabin above upper Salt Creek Canyon. The cabin was intended to be the center of Kirk’s farming operation. Kirk, however, was unable to maintain the farm and abandoned the site circa 1900. Early survey notes indicate that the cabin was subsequently occupied by an individual identified as L. Peachman. No further information, however, is available regarding his occupancy of the cabin.
From the turn of the century until the mid 1970s, Salt Creek Canyon was used for livestock grazing by the Scorup and Somerville Cattle Company and its predecessors. A cowboy camp was located near Cave Spring and in the vicinity of the junction between the east and west forks of Salt Creek Canyon.
Until the late 1940s and early 1950s, however, knowledge of the Needles and Salt Creek Canyon was limited to those ranchers and cowboys. At that time, a handful of people began to explore the Needles area by horseback and foot. In 1953 and 1954, the first motor vehicle trips through Salt Creek Canyon from Cave Spring to Angel Arch Canyon took place. Although the interest in vehicle travel increased during subsequent years, it was not until the late 1950s and early 1960s, that the number and frequency of vehicle trips increased with commercial guides.
While the federal government acknowledges commercial guiding trips up the creek, something that perhaps could reflect continuous use of the wash, it also points out in its motions that neither San Juan County nor the state of Utah has ever claimed Salt Creek as a road, let alone maintained it as one.
Plaintiffs have had no presence in Salt Creek Canyon since establishment of Canyonlands National Park in 1964–or at any date prior to that. Neither the County, nor the State, have ever carried out any construction, improvement, repair or maintenance of the route. Until the filing this action, neither Plaintiff, nor any member of the public, ever challenged the Federal Defendants’ exclusive ownership, jurisdiction and control of the Canyon, including the claimed road. The Park Service’s open and notorious actions controlling access to the Canyon extend into the 1960s, starting immediately after establishment of the Park, and Plaintiffs’ claims are therefore barred by the QTA’s (Quiet Title Act) twelve-year statute of limitation.
Even if the Court determines that it has jurisdiction over these claims, Plaintiffs cannot meet their burden of establishing the existence of an R.S. 2477 right-of-way for the claimed Salt Creek road. The Tenth Circuit has made clear that the burden lies with the claimant seeking to establish a right-of-way over federal lands and that any doubts are resolved in favor of the United States. Here, Plaintiffs cannot meet their burden of proving that the claimed Salt Creek road was established for the claimed uses by at least ten years of continuous use before reservation of the subject lands. Neither the County nor the State have ever manifested any intent to accept an R.S. 2477 right-of-way for the claimed Salt Creek road. Neither the County nor the State can show that they took any action to accept the claimed Salt Creek into their respective road systems.
Instead, the claims of the County and the State were filed in a last-ditch effort to prevent the Park Service from closing Middle Salt Creek Canyon to motor vehicle use. Plaintiffs cannot show any act accepting or acknowledging an R.S. 2477 right-of-way beyond their actions in filing this suit. The County and the State acknowledge that they have never carried out any construction or maintenance of the claimed route or expended any funds for any such construction or maintenance. The State acknowledges that it is not authorized to make any expenditures on the route.
As for those commercial trips in the 1950s and 1960s, the federal government maintains that they were very sporadic and that there was no clearly established, repetitively used route that could be construed as a road.
Critically, Plaintiffs cannot establish the physical existence of a road by 1964. Early travel by horseback and on foot on undefined and unknown routes up Salt Creek Canyon did not create a road or highway within the meaning of R.S. 2477. While it is presumably the case that travel up the Canyon generally followed the course of Salt Creek, Plaintiffs cannot establish the course followed by early travelers on foot and horseback driving cattle or prospecting in the Canyon. There is no documentation of any defined route or track prior to 1964. Plaintiffs cannot establish that travel by jeeps that commenced in the 1950s followed the same routes through the Canyon that may have been utilized by travelers on foot or horseback. Nor can Plaintiffs present evidence that jeeps accessing the Canyon followed each other’s tracks – which were quickly erased by the stream. The evidence will show that jeeps traveling up the Canyon in the 1950s were required to find their own route up the Canyon after each storm and season-to-season – generally following the streambed – but picking their way through the Canyon around debris and quicksand, leaving the streambed at different locations depending on conditions existing during each trip.
How the court rules on San Juan County's claim to R.S. 2477 rights could go a long way to determining similar cases dotting the Southwest.
"The reason this case is important is because there are countless routes where cowboys ran cows or sheep or people poked around in Jeeps just exploring or looking for uranium," says Heidi McIntosh, an attorney with SUWA. "Westerners are famous for poking around in the middle of nowhere. ... Counties in Utah claimed about 15,000 of these old routes. If they can validate them as highways, they can grade them, pave them."
Salt Creek is a portal to the past, a vital one at that for both biological resources and archaeological records. Its water nourishes a surprisingly rich riparian habitat in this largely arid national park, and "supports the park’s richest assemblage of birds and other vertebrate wildlife outside the Green and Colorado river corridors," according to the government's argument to keep the road closed to vehicles.
"It is the one perennial stream inside Canyonlands National Park other than the Green and Colorado rivers," points out Assistant Superintendent Henderson. "Water drew people then (thousands of years ago) just as it does now. It is very rich in archaeological resources, the entire Salt Creek corridor, and that was primarily because there was a year-round water source there. ... There's not only some pretty stunning rock art, but there's ruins, there's habitation structures, there are granaries, storage structures. It's pretty rich in archaeological resources."
Since the park closed off motorized access to the route in 1998, storms, flash floods, and a rebirth of vegetation have erased most of the scars left by the traffic, he adds.
"Boy, I can tell you it has changed dramatically since 1998," Assistant Superintendent Henderson says. "There has not been a motor vehicle up there in 11 years. You can still see where the road was, but it would not be drivable. We've had 11 years of flash floods."
That rebirth of nature, as well as the rich archaeological record, are key reasons why the route should remain closed to motorized traffic, according to SUWA, as Ms. McIntosh outlined in her friend-of-the-court filing.
Roads negatively impact native ecosystem health in a variety of ways, including increasing sediment, erosion and water pollution; fragmenting wildlife habitat; and introducing weeds and removing native plant life. These impacts are far reaching and long standing because “the effects of a road may extend for more than a mile from the road itself and the full impacts may not emerge for dozens of years.” These impacts are most profoundly felt where counties and states obtain rights-of-way for cow paths, horse trails or single-track trails because “the first road into a natural landscape has the largest relative effect. It represents a threshold after which effects rapidly cascade and multiply. Avoiding the threshold is the prime objective to maintain nature, natural processes, and natural ecosystems for society long term.” Nowhere are ecological impacts from claimed R.S. 2477 rights-of-way more damaging than in riparian areas like Salt Creek which are the most ecologically important areas in the arid West.
Biological and ecological resources are not the only values threatened by R.S 2477 claims. Numerous studies have documented the positive correlation between vehicle access and archaeological site damage and vandalism. This is particularly relevant in Salt Creek which has long provided a haven for prehistoric cultures which left unique artifacts, thousands of years old. Indeed, it has “the highest recorded density of archaeological sites in [Canyonlands National Park].” In 2001, the NPS located six archeological sites in Salt Creek Canyon and recommended all six sites for nomination to the National Register of Historic Places.
In its complaint, the state of Utah, which joined the county in the legal battle, asks that it be given the right to, among other things:
a. Making minor deviations in the road for safety purposes;
b. Grooming the road surface;
c. Establishing and maintaining the crown with materials gathered along the road;
d. Filling ruts;
e. Spot filling with the same or improved materials;
f. Leveling or smoothing washboards;
g. Clearing the road way of obstructing debris;
h. Cleaning culverts, if any, including head basins and outlets;
i. Resurfacing with the same or improved materials of the same general type;
j. Maintaining and repairing washes and gullies;
k. Maintaining drainage;
l. Maintaining and repairing washes and gullies;
m. Maintaining, repairing, replacing and installing culverts as necessary to protect the existing surface from erosion; and,
n. Repairing washouts.
Indeed, the county wants the right to "extend the claimed road outside the 'beaten path' and to widen the road to a width 'sufficient for the passage of two motor vehicles,'" notes the government's motions.
An interesting sidelight to this case is that Judge Jenkins wants to personally see Salt Creek. Just how he'll do that in light of the current restrictions remains to be determined.
"We've got options," says Assistant Superintendent Henderson. "We could use helicopters, we could use mules. I don't think we'll be driving."