Ted Zukoski, Earthjustice, 303.996.9622
Heidi McIntosh, Southern Utah Wilderness Alliance, 801.541.5833

Case is Part of Utah’s Campaign to Transform Primitive Trails on Federal Lands into Highways

DENVER – The federal Tenth Circuit Court of Appeals heard oral arguments on Wednesday morning in a case involving an alleged highway right of way located in an ecologically critical streambed in Canyonlands National Park.  The National Park Service had closed the stream to jeep use in 2005 due to the water pollution, crushed vegetation, degraded wildlife habitat and other impacts caused by vehicle use.  San Juan County and the State of Utah sued the Park Service, arguing that the Park could not close the streambed to jeeps because it  was a county and state highway.  The trial court ruled that the few travelers who had ventured up the stream before Canyonlands became a national park in 1964 did not transform the creek into a “highway” under federal law.

The appeal is significant because the appeals court may rule on key issues that will govern how and whether states and counties can establish highway rights of way across all types of federal public lands under a now repealed law commonly known as “R.S. 2477.”  Congress enacted the law in 1866 as a way to facilitate the orderly settlement and development of the West and to give lasting recognition to existing highways; it repealed the law in 1976, subject to valid existing rights.  Now the State of Utah is attempting to stretch the law beyond Congress’s original intent in an effort to undermine federal ownership, management and conservation of national parks and other sensitive federal lands.

Conservation group the Southern Utah Wilderness Alliance and the non-profit environmental law firm Earthjustice filed a friend-of-the-court brief earlier this year asking the appeals court to reject Utah’s extreme arguments.  Grand Canyon Trust, The Wilderness Society, Sierra Club, and the National Parks Conservation Association joined the brief.

Heidi McIntosh, associate director of the Southern Utah Wilderness Alliance, explained:  “The state’s misguided effort to overlay some of Utah’s most beautiful and remote landscapes with a spiderweb of roads will be devastating to the health, scenery and quiet of unique natural treasures like Salt Creek.  And at a cost of over $1 million in attorneys’ fees, it’s a financial boondoggle to boot.”

Earthjustice attorney Ted Zukoski added:  “Salt Creek is a rare desert gem, a stream bursting with life, and the area with the highest recorded density of archeological sites – including ancient cliff dwelling – in Canyonlands.  Turning this creek into a highway would not only degrade one of America’s iconic national parks, it would be wrong as a matter of law.”

This appeal is an early legal salvo in the State of Utah’s campaign to gain judicial recognition of approximately 15,000 highway rights of across federal public land, including areas that have been protected from roads and off-road vehicle use for years.  These remarkably scenic lands include Utah’s awe-inspiring  national parks, wilderness areas, wilderness study areas, national wildlife refuges, the Grand Staircase Escalante National Monument, Dinosaur National Monument and the Glen Canyon National Recreation Area.  The State of Utah and a number of Utah counties filed twenty two lawsuits in May 2012 that would blanket the state with about 15,000 thousand “highways,” many of which are actually faint trails, cow paths, streambeds and long-abandoned prospector tracks.

Maps and photos of the state’s thousands of R.S. 2477 claims are available at http://www.suwa.org/issues/phantom-roads-r-s-2477/.

A slideshow of Salt Creek is available at bit.ly/OyFSwL.

The alleged Salt Creek “highway” in 2006. Ted Zukoski photo.