NATIONAL PARKS: Appeals court rejects Utah bid to claim Canyonlands road
Phil Taylor, E&E reporter
Greenwire: Monday, April 28, 2014
A federal appeals court in Denver struck down Utah's bid late last week to claim a 9-mile road along a streambed in Canyonlands National Park, a major victory for conservation groups that could also hamper Utah's claims over thousands of miles of other roads crisscrossing federal lands.
The 10th U.S. Circuit Court of Appeals said Utah and San Juan County had failed to prove that the Salt Creek Road had been in "continuous" public use before Canyonlands was protected as a national park in 1964.
That was the burden of proof that Utah and San Juan faced in order to claim title to the road under the 1866 mining law known as R.S. 2477. It means the scenic Angel Arch at the end of the road will continue to be accessible only by foot.
While ranchers herded and grazed cattle in Salt Creek Canyon beginning in 1891 and Boy Scouts, tourists, and uranium and oil and gas prospectors explored the canyon beginning in the 1950s, the canyon fell short of a public highway, the court said.
"The evidence was not sufficient to show the road had been in continuous public use as a public thoroughfare throughout a ten-year period prior to the reservation of Canyonlands," the 10th Circuit wrote in a 28-page opinion.
The National Park Service closed Salt Creek to vehicular travel and in 1998 blocked it with a gate. Conservation groups claimed jeeps were tearing up riparian plants, scaring wildlife and dumping engine oil in Salt Creek, one of just three perennial streams in Canyonlands.
Conservationists cheered the court's ruling, saying it could implicate Utah's claims to roughly 36,000 other miles of roads on federal lands, many of them also in national parks, wilderness study areas or other lands targeted for roadless protection (Greenwire, Sept. 3, 2013).
"Salt Creek will remain a place of quiet beauty, with healthy wildlife habitat and clean water, unpolluted by the hundreds of jeeps that used to churn through the stream every year," said Heidi McIntosh, managing attorney at Earthjustice, in a release. Her organization represented conservation groups that participated in the case, including the Southern Utah Wilderness Alliance, Sierra Club, Grand Canyon Trust, National Parks Conservation Association, and Wilderness Society.
McIntosh said it was notable that the 10th Circuit did not recognize seasonal ranching -- driving cows to high-country pastures in the summer and bringing them back down in the early fall -- as a factor in whether R.S. 2477 claims were valid. Ranchers, she said, were there under permit from the Bureau of Land Management and were not there as part of the public.
"It's an enormously significant opinion, and it will provide guidance" to district courts, she said in an interview, noting that the Salt Creek Road is similar to thousands of other Utah is claiming.
The decision "should be a wake-up call for the State to drop its quixotic quest claiming cow paths, two-tracks and stream bottoms as highways," said SUWA attorney Steve Bloch in a release.
Shawn Welch, an attorney for San Juan, said he was "very disappointed" over the ruling, and that the county had not decided its next legal move.
He said most members of the public are unable to make the 18-mile-round-trip, two-day trek to visit Angel Arch. He agreed the 10th Circuit's dismissal of historical ranching uses could implicate Utah's other R.S. 2477 claims.
"It's just sad that this feature of the park is just left to those with the time and physical ability to do a two-day hike," he said.
Welch said it was ironic that then-Interior Secretary Stewart Udall in 1961 joined a delegation of Park Service officials, members of Congress and other stakeholders on a Canyonlands survey that included a jeep tour up Salt Creek to Angel Arch.
The 12-mile Salt Creek Road closes at the Peekaboo Spring campground, where ancient pictographs grace a canyon wall.
Homestead law at heart of ownership fights
Designed to promote settlement in the Western frontier, R.S. 2477 states that "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."
It provided an opportunity for miners and homesteaders to build trails or roads over any public lands not yet reserved or claimed for private use. Most of the roads in the West were established under its authority. The law was repealed in 1976, but Congress said any valid rights of way at the time would be grandfathered in.
The difficulty has been determining what roads existed then. The 10th Circuit said the burden of proof falls on local government, but evidence is often scarce.
It said that the regular use by a single cattleman for driving cattle is insufficient, as is intermittent or occasional use by hunters, fishermen, shepherds, farmers and miners.
Moreover, the court affirmed U.S. District Judge Bruce Jenkins' ruling in 2011 that "A jeep trail on a creek bed, with its shifting sand and intermittent floods is a by-way, but not a highway."
The 10th Circuit is currently also hearing the federal government's appeal of a federal district judge's ruling in 2013 that awarded Utah's Kane County rights of way over 12 of 15 roads it had claimed under R.S. 2477, four of which run through the Grand Staircase-Escalante National Monument (Greenwire, March 25, 2013).
Welch said oral arguments are scheduled to begin in late September in Denver.
