A winding creek that jogs through Canyonlands National Park to a spectacular sandstone arch is not a road, and that finding by a federal judge could send reverberations throughout many Western states anxious to expand access across the federal landscape.
The 81-page ruling (attached below) handed down Friday was long awaited; the trial on the status of Salt Creek ran nine days back in September 2009. Its conclusion -- if not overturned on appeal -- runs a stake through arguments that abandoned Jeep tracks, cattle trails, and even creek beds are legal thorofares under R.S. 2477, 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In 1976 Congress repealed the law, but not before providing that any valid R.S. 2477 route existing at the time of the repeal could continue in use.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.
But in his ruling, U.S. District Judge Bruce Jenkins held that the state of Utah and San Juan County had not demonstrated during the trial that Salt Creek has been used continuously as a public road, and that "a Jeep trail on a creek bed with its shifting sands and intermittent floods is a by-way, but not a highway."
The ruling was heralded as a "landmark decision" in the realm of public land litigation by the Southern Utah Wilderness Alliance, which added that its arrival marks "a great day for Utah Wilderness."
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 were on trial before Judge Jenkins.
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 dozen years over whether Salt Creek should be open to off-road vehicles. 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.
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 upheld 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.” That ruling led the Park Service to close the creek in 1998 to vehicular traffic.
The settlement of whether the Park Service had the administrative authority to close the route led to the challenge on the grounds that the creek qualified as an R.S. 2477 route. 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 needed to prove there was continuous motorized use of Salt Creek from 1954-1964.
But Judge Jenkins ruled that the evidence did not support that contention.
"... this court must conclude that the plaintiffs have failed to prove by clear and convincing evidence the requisite ten years of continuous public use of their claimed R.S. 2477 right-of-way as a public thoroughfare."
Back in 2009, when the case was headed to Judge Jenkins' courtroom, Heidi McIntosh, an attorney with SUWA, summed up the importance of the outcome.
"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," she said at the time. "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."