Heading to the Dirty Devil
Last October our family took advantage of a long school break weekend and traveled to Utah’s Dirty Devil region, a remote corner of southeastern Utah roughly a five hour drive from Salt Lake City. We eventually left the pavement on State Highway 24 and headed east on a graded dirt road that leads to the Maze District in Canyonlands National Park. As a result of grading, in some spots the route itself had dropped several feet below the surrounding country. At places the feeling was that of driving in a ditch.
Before we reached the park we turned south on another graded dirt road and eventually found a well-used campsite (or perhaps poorly-used, judging by the trash, spent rifle casings, and campfire rings). Jaw-dropping views into the heart of redrock country explained the site’s popularity.
Along the way to our camp we had passed by dozens of spur routes. Some led to ranches, stock tanks, or old mining claims and some led nowhere at all but simply petered out in the desert. While some of these spurs were narrow but maintained routes, many were little more than user-created two-tracks leading into the desert. Closer review of our maps showed that too many of those two-tracks led into proposed wilderness areas and the Glen Canyon National Recreation Area.
Our weekend trip was a window into the heart of one of the largest and most expensive legal battles taking place across the American West. According to the State of Utah, all of these dirt routes across public lands are really state “highways,” and it claims the right to use and expand them pursuant to a provision in the 1866 Mining Law, known today as Revised Statute 2477 or “RS 2477.” Congress repealed that law 110 years later with passage of the Federal Land Policy and Management Act in 1976, but pre-existing claims—if proven legitimate—are honored as valid existing rights.
Between 2008 and 2012, Utah and its counties filed 22 lawsuits in federal district court seeking to establish title to more than 14,000 of these “highways” across more than 36,000 miles of federally managed lands. By SUWA’s count, the state is claiming more than 3,600 miles of RS 2477 “highways” in proposed BLM wilderness, more than 2,000 in the Grand Staircase-Escalante National Monument, and more than 450 miles in units of the National Park System (including Capitol Reef and Canyonlands National Parks, Dinosaur National Monument, and the Glen Canyon National Recreation Area).
For each of these routes the state and counties claim the right to widen and improve the route to 66 feet, as well as to upgrade the route and pave it. They also want to be free to “maintain” and “improve” these routes without having to check in with, and get approval from, federal land management agencies. The state and counties complain long and loudly about overbearing federal bureaucrats who are insufficiently respectful of local officials, but the locals are short on specifics about why consultation presents any real problems.
The Rhetoric and the Reality
Much of the rhetoric behind the state’s RS 2477 litigation is that these highways form a comprehensive transportation system that helps get kids to school, products to market, and people from A to B. That’s just not the case. As the state’s lead attorney working on these cases told the Utah legislature this summer, roughly 78 percent of the state’s RS 2477 claims are for user-created, two-tracks (so-called “Class D” highways), with only 22 percent of the claims for graded and regularly maintained roads (so-called “Class B” highways). On the ground, this means that the overwhelming majority of the state’s RS 2477 claims are the two-tracks and cow paths that our family saw heading into the desert.
The nature of the state’s RS 2477 claims is consistent with the genesis of its litigation. Beginning in the 1990s, during the second iteration of the Sagebrush Rebellion (we’re currently living through Sagebrush Rebellion v.3), the legislature and a cadre of Utah attorneys pressed the notion that RS 2477 could be a tool to defeat congressional wilderness designation.
Because wilderness areas are by definition roadless, the thinking went that if the state could riddle proposed wilderness areas with “roads” the areas would be ineligible for protection. To that end, the state invested tens of millions of taxpayer dollars to locate and then digitally map these routes—and millions more since then to try to establish its title to these claims.
A Tough Road
This brings us back to the state’s current suite of federal lawsuits. To put it bluntly, things haven’t been going all that well for the state. It spent more than a million dollars and 10 years pursuing a single RS 2477 claim in the streambed of Salt Creek Canyon in Canyonlands National Park . . . and lost.
The state lost more than just the Salt Creek claim itself: the decision also significantly narrowed the universe of routes that may qualify as legitimate RS 2477 claims. The state spent millions pursuing 15 RS 2477 claims in Kane County and eventually prevailed on 12 of those claims in the district court. With a few notable exceptions, it generally prevailed on the Class B routes (graded and maintained) and lost on the Class D routes (two tracks). The United States has appealed portions of that ruling. That leaves roughly 13,985 claims to go.
Where Do We Go from Here?
Remarkably, the contours of the law governing the validity and scope of the state’s claims are still not settled. While an important 2005 federal court decision made clear that the state and counties bear the burden of proving their claim to each and every route by clear and convincing evidence, all sides agree that more rulings are needed.
The state is currently pursuing claims in Garfield and Kane Counties in the district court, including claims in wilderness study areas and the Grand Staircase-Escalante National Monument. Appellate review and rulings on those forthcoming decisions likely won’t happen until 2016 at the soonest. In the meantime, the state continues to work (and spend money) to preserve the testimony of aged witnesses, hoping the testimony will help the state prove its cases (see sidebar, left).
Bottom line, the state has its work cut out for it and knows it. And that is why that same state attorney general candidly told the legislature that the state hopes to settle its claims to the overwhelming majority of these routes (rather than trying to win through litigation). Could something like that actually happen? Possibly. Although the U.S. should have established itself firmly in the driver’s seat and pressed the state at every turn, it hasn’t done so.
Slow to Act
Instead, U.S. attorneys have proceeded with extreme caution. The Interior Department has been slow to rise to the challenge and has also been schizophrenic about its willingness to fight to defend its title to these claims—including claims in wilderness study areas and national monuments. Against that somewhat troubling backdrop, we are listening carefully for any hint of serious settlement talks.
It is important to note that SUWA hasn’t been sitting idly by and hoping that the United States will do our job for us. Rather, we’ve marshaled a team of more than 20 attorneys from national and local firms to work to defeat the state’s claims and protect the United States’ control over wilderness-caliber landscapes. It’s taken much time and effort but we have secured a seat at the table to cross-examine state witnesses, file briefs opposing the state’s claims, and support the United States’ efforts when we can. We have also worked to open new fronts where SUWA is a plaintiff challenging the state’s tardy decision to bring this litigation in the first place (see sidebar, right).
Back to the Dirty Devil
As we left Dirty Devil country for the long drive back to Salt Lake City I thought about the state and counties’ RS 2477 litigation. While not every graded Class B route is an RS 2477 right-of-way, many of those routes, like the ones we were driving on, fulfill a legitimate purpose and some resolution about their future seems probable.
At the same time, and for a variety of reasons, many of the state’s Class D routes—the two-tracks and aimless routes leading into proposed wilderness areas—do not serve a legitimate purpose and likely do not qualify as valid RS 2477 rights-of-way. The state needs to prepare itself to drop those illegitimate claims. This will not necessarily mean that all those routes are closed on the ground, but it will be up to the federal land managers and not the state to decide their future.
We should be careful what we wish for, though. These are the same sage federal land managers that brought us the disastrous Bush-era land use plans that largely allowed motorized use on the routes the state and counties have claimed under RS 2477. We’ve been fighting those plans and the Obama administration for nearly six years in federal court.
If the state follows a sensible path, the result will be a much smaller number of Class B and D routes to work their way through the federal courts, saving Utah taxpayers millions of dollars and protecting wild places from the damage caused by motorized vehicles. For now, the fight continues and no side is openly showing signs of backing down. Thanks to your support, we are well positioned to continue working to defend America’s redrock wilderness.
(From Redrock Wilderness newsletter, autumn/winter 2014 issue)