Trial Over What Constitutes a "Road" In Canyonlands National Park: Vestiges of Sagebrush Rebels

Does a wash constitute a road in a national park? Salt Creek, top photo, long as been mired in litigation over the question. The area is rich with natural and cultural resources. Top photo by Ted Zukowski, Earthjustice. Bottom photo by Neal Herbert, National Park Service.

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."

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Comments

Thanks for the excellent story on this. For readers interested in reading more about the impacts of ORV traffic in Salt Creek, the 2002 EA is available on the Canyonlands web site at: http://www.nps.gov/cany/parknews/upload/saltcreekEA.pdf

A creek bed is not a road. Why is it that there are always those that want to destroy something in nature just so they can make a buck?

The Sagebrush Rebellion has been replaced by the Shovel Brigade movement. All over the west, bands of motorized recreationists are tearing down gates and removing signs from RS 2477 public highways that cross private property and federal land. This started in Utah with the Jarbidge Shovel Brigade and is now spreading to other states.

I have two comments:

1. This is another example of the NPS allowing the camels nose under the tent in years past, leaving current managers to clean up the mess. Like snowmobiles in Yellowstone, ATV's in Wrangell St Elias or Denali etc. yesterday's managers made ill-considered and lazy decisions putting problems in our way today. Makes you wonder what today's managers are royally screwing up for tomorrow (ungulate control in Rocky and Teddy Roosevelt, anyone?)

2. If San Juan and Kane Counties hate the federal government so much, why don't they return the millions of dollars of federal payments in lieu of property taxes and grants payed into their county coffers over the years? Just another example of giving the finger to the government on one hand while holding out the other at the same time. I have no respect for these people and their small-minded leaders.

Jarbidge is in Nevada..... Tearing down signs and gates is breaking the law. Be sure to take lots of pictures (including a clear view of your license plate), then post them to the web.

"1. This is another example of the NPS allowing the camels nose under the tent in years past, leaving current managers to clean up the mess. Like snowmobiles in Yellowstone, ATV's in Wrangell St Elias or Denali etc." Anonymous

FWIW, I agree with you. All-too-many regretable decisions were made, in part, for the sake of political comfort. It is much too easy for park and regional management to alter or set policies that expose park lands and resources to long term adverse impacts. ATV access has resulted in widespread destruction of wilderness values and formally pristine habitat in many of the national parks in Alaska, including DENA, WRST, KATM, LACL, GAAR, NOAT, KOVA, GLBA, BELA, CAKR and YUCH. In most cases, these impacts could have been avoided or substantially mitagated. Now, however, it will be extremely difficult to pull the camel's nose from under the tent.

If tearing down gates and signs is against the law, then why didn't members of the Jarbidge Shovel Brigade get arrested? How can it be against the law to assert your RS 2477 access rights? Nobody I know has been arrested for doing that.

Yes Jarbidge is in NV not UT. thanks.

Why do writers always refer to R.S. 2477 as a "civil-war era mining law" as if to suggest that because it is really old that it is unneeded, out of date, etc. Do we refer to the 1st amendment as "that old revolutionary-era speaking law"?

I think it's readily apparent that RS 2477 was created at a time when the government was trying to encourage western expansion and that today's circumstances are much, much different than those of the 1860s and that the statute is indeed out-of-date with the times, whereas the 1st Amendment as a principle is part of the U.S. Constitution, a so-called 'living document.'

Several errors in this story. 1. The pictographs in the photo are not in Salt Creek Canyon but are in adjacent Davis Canyon and are accessible by road.

2. The Salt Creek Road was periodically maintained, even by the Park Service. I was venturing up Salt Wash in 1979 and observed a Park Service employee smothing the road, moving rocks, and filling in steps.

3. Many roads in the southwest US travel along and thru creek beds.

Open the road. . . .I want to take my grandkids to see Angel Arch!

Wayne, re your point about the pictographs, the NPS tells me that photo was taken in Salt Creek Canyon.

As for your second point, I'm not sure a "Park Service employee smoothing the road" constitutes regular maintenance. Beyond that, the federal government (not necessarily the Traveler) would disagree with you.

As for your third point, the main issue is that this creek bed is within a national park.

Just to clarify to Anonymous who compared the R.S. 2477 statute to the First Amendment:

R.S. 2477 (for "Reserve Statute 2477") has in fact been repealed many years ago.

Unlike the First Amendment, RS 2477 is no longer law.

All that is left are the roads that were set up while RS 2477 actually was still a law. The law was set up at a time there was a great need to provide transportation routes to the West, and a concern that the trails going west could get privatized or blocked. Like, the Oregon Trail. So, the idea was that if you had a trail that was in common use, some new land owner could not come along and shut it down.

Now, however we are seeing something entirely different. The shenanigans going on is a political strategy to break down public conservation by claiming that every path anyone ever took is a 'highway.' The game is not to protect real highways, like the Oregon Trail from private closures, but to destroy conservation areas.

It is nonesense to think that a trail to somebody's mining claim is a highway. A miner has a right of access under the Fifth Amendment to her/his property interest in the mine. He does not need a highway, and never established one. She/he had separate access rights, if the mining claim was valid. If the claim was never perfected and the mine plays out, the miner loses the claim and the access that goes with it, because the mining is no longer going on.

The legal device is to claim that these supposed trails were 'highways' back when RS 2477 was in operation, and to further claim that they have been public highways ever since. We are talking about some devious people here, who do not accept conservation laws passed by the US Congress. It is not as if there are not plenty of highways going west these days.

Ray Bane is right about failure to follow the laws of public access in the national parks in Alaska. Originally, the park service did follow the law on subsistence access after the Alaska Lands Act was passed in 1980.

If you want to destroy a national park, the way to do it is by unrestricted motorized land access.