A creekbed that carries water intermittently through Canyonlands National Park is also a road that should be open to vehicles. At least that's the argument the state of Utah will press this week when its attorneys appear before the 10th U.S. Circuit Court of Appeals.
The state and one of its counties hope to convince the panel that Salt Creek is a road, an argument they failed to sell to a federal court judge more than a year ago. When he disagreed with their position, Judge Bruce Jenkins wrote that, "a Jeep trail on a creek bed with its shifting sands and intermittent floods is a by-way, but not a highway."
How the 10th Circuit receives the state's arguments is highly important for national parks, as Judge Jenkins' opinon ran 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In 1976 Congress repealed the law, but not before providing that any valid R.S. 2477 route existing at the time of the repeal could continue in use.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.
Utah just might be the champion of R.S. 2477 challenges. According to Ted Zukoski, a staff attorney with Earthjustice, "Salt Creek is just the first domino the state hopes will fall to its extreme interpretation of law. Utah earlier this year filed 22 lawsuits aiming to take control of 10,000+ more "highways" - including streambeds, little used two-tracks and slot canyons - many in national parks, designated wilderness, or national monuments."
"The state's lawyers have essentially asked the Court of Appeals to rule that any hiking trail or wagon track that was used by one or two people a few times over a 10-year period is a 'constructed highway' that the state can control," Mr. Zukoski wrote in a column last week for Earthjustice's blog. "In essence, the state is hoping to turn a repealed, 140-year-old law meant to shield public investments in real highways into a sword to destroy wilderness.
"By gaining control of such 'highways,' the state could effectively tie the hands of park rangers and other land managers so they wouldn't be able to protect the land, wildlife, or watersheds inside a national park from the destructive impacts of motor vehicle."
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.
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 federal government.
This week's hearing before the 10th Circuit will be held on Wednesday. It could be months, though, before the panel rules. Stay tuned.