September 3, 2013

Utah counties want to take the roads less traveled -- and keep them

The Island Park Road, which descends 17 miles through sagebrush and pinyon and juniper trees before ending on the banks of the Green River, is one of more than 12,000 roads Utah has claimed under R.S. 2477. (Photo by Phil Taylor.)

Phil Taylor

DINOSAUR NATIONAL MONUMENT, Utah -- A bullet-riddled sign in Utah's pinyon-juniper desert warns of a winding highway ahead.

It's a harbinger of the tortuous political and legal fight among Utah's counties, environmental groups and the Bureau of Land Management that could dramatically change management of the area's stark deserts, red rock canyons and backcountry lands.

Key witnesses say they remember Island Park Road being used by jeeps and trucks at least as far back as the 1950s for livestock operations, farming, fishing and other recreation.

That, according to an 1866 mining law, means management of the road rightfully belongs to Utah, not BLM or the National Park Service, over whose land the road crosses.

The 17-mile road, which winds past ranchlands and American Indian petroglyphs to a historical ranch along the Green River in Dinosaur National Monument, is one of more than 12,000 roads that Utah and its counties last year claimed as their own in federal district court.

Spanning about 36,000 miles, the road claims represent one of Utah's boldest bids yet to assert control over federal lands and, according to conservationists, the most serious threat to Utah's remaining wildlands.

Utah claims the roads at stake have been used for decades by hunters, cattle ranchers, mineral speculators and motorized vehicle enthusiasts, and have either been shut down or restricted, or are in danger of closure by the federal government.

"There will be economic benefits derived from these roads if they're kept open," said Anthony Rampton, Utah's assistant attorney general and lead litigation counsel for the roads lawsuits. "That benefit will come from ranching enterprises, oil and gas development, wind development, solar development, tourist income, hunting and fishing income."

But unlike similar campaigns by Utah to "take back" federal lands through eminent domain or by hamstringing federal law enforcement agents, the law appears to be on Utah's side in its road battle.

In March, Utah's Kane County claimed a major victory when a federal district judge awarded it rights of way over 12 of 15 roads it had claimed, four of which run through the Grand Staircase-Escalante National Monument (Greenwire, March 25). Some of those 89 miles also run through the Paria-Hackberry wilderness study area, which BLM recognized for its roadless characteristics and which environmentalists have eyed for future wilderness designation.

"Given the facts that we have and the law, we're going to be able to prove the vast majority of these roads," Rampton said of the state's Revised Statute 2477 claims, which are located in 22 of its 29 counties. "It shouldn't have been a surprise to anyone."

The ruling was a shot across the bow for conservationists who fear the road claims, if successful, would fragment Utah's best remaining backcountry, including scenic national parks and monuments. Solitude would be lost, invasive weeds would spread and archaeological sites would be exposed to looters, they say.

Conservationists have assembled a legal team of more than 25 attorneys from national and local law firms to work alongside federal attorneys against the state's claims.

Steve Bloch, conservation director for the Southern Utah Wilderness Alliance, said a majority of Utah's road claims are primitive dirt tracks, not the "highways" that the 1866 law aimed to protect.

"The overwhelming majority of these routes simply noodle out into the desert," Bloch said.

The claims run through every national park except Bryce Canyon and Arches and through at least two designated wilderness areas and would fragment habitat for vehicle-skittish elk and sage grouse, according to SUWA.

The road claims also travel more than 500 miles of wilderness study areas, 2,000 miles of national monuments and 3,600 miles of proposed wilderness, SUWA said. Few of them lead to grocery stores or schools or promote commerce, Bloch said.

"They're really out to thwart congressional wilderness designation," he said. "That's why the stakes are so high in Utah."

Barring a settlement, the legal battle promises to be a costly one -- one rural county in southeast Utah has already spent $1 million litigating a single road in Canyonlands National Park -- and could easily last decades.

"If we can't resolve them ourselves amidst negotiation, we have no choice but to go to court," Utah Gov. Gary Herbert (R) said in an interview. "I'm not willing to continue to kick the can down the road and put off getting that answer."

If Utah prevails, experts say other Western states could follow suit, kicking off an even larger battle.

'Short, sweet and enigmatic'

Utah's road claims -- filed in several massive complaints in spring 2012 -- fall under an obscure 1866 mining law designed to promote settlement in the Western frontier.

"And be it further enacted," R.S. 2477 read, "that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."

The law was "short, sweet and enigmatic," according to the 10th U.S. Circuit Court of Appeals in a 2005 ruling.

The law was 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.

As Utah's Supreme Court noted more than 80 years ago, "It was a standing offer of a free right of way over the public domain," which required no formal acceptance or approval by the federal authorities.

That all changed in 1976 when Congress repealed R.S. 2477 as part of the Federal Land Policy and Management Act, a watershed law that directed BLM to retain and preserve its lands rather than dispose them for private development.

But Congress grandfathered any valid R.S. 2477 right that existed at the time.

As a result, counties seeking legal recognition of their R.S. 2477 claims must prove -- through historical records, photos or witness testimony -- that the roads were used as far back as the 1960s.

But witnesses who can testify to using the roads are getting old and dying, creating a sense of urgency for Utah counties.

"We've probably lost between half and three-quarters of our witnesses to death," Rampton said. "We're losing more every day."

The state is currently deposing hundreds of "at-risk" witnesses in courthouses, schools, county commission chambers, BLM offices and people's homes.

"'I killed my first buck here. We corralled cattle here,'" Rampton said. "That's the kind of detail we're able to get from these witnesses."

Last month alone, attorneys from the Justice Department, Utah and its counties, and SUWA visited Tooele, Garfield, Beaver, Grand and San Juan counties to take testimony from 10 witnesses.

Pete Steele, a 76-year-old witness from San Juan, testified for three days on roughly 100 roads. Steele, a former cattle rancher, tour guide, BLM employee and San Juan employee, said he used R.S. 2477 roads south of Canyonlands for livestock operations, hunting, predator control, hiking, and other recreation and traveling, according to his affidavit.

"When you spend time with the people who live and work on these roads and have lived there all their lives, you realize they are important, and they're important for intangible reasons," Rampton said. "For instance, there are a lot of hunters who use these roads. They have places they've gone all their lives. They've gone with their fathers and grandfathers and families. Traditions have built up around the use of these roads."

'The whole thing is a travesty'

But critics of Utah's claims say the vast majority of the roads are so-called Class D routes that have never been maintained and aren't critical to the state's transportation needs.

Many were created by off-roaders, oil and gas prospectors or wanderers who left the trodden path decades ago. In the arid desert, where plants and shrubs take hundreds of years to regrow, an improvised two-track can take centuries to fully restore itself.

"People argue about the meaning of the word 'highway,' but it's hard to imagine it means a random oil and gas seismic line from the '60s that hasn't been driven except once every five years," said Kevin Walker, a SUWA volunteer who lives in Moab and works for Microsoft. "To me that seems like abusing the law."

On a searing hot July day, Walker hunted for R.S. 2477 claims along Browns Hole Road, a dirt route that heads east from U.S. 191 toward the La Sal Mountains.

"See that faint line over there?" he asked, pointing to a strip of younger, lighter sagebrush that vanished into a hillside.

It was an oil and gas seismic line, one of thousands that were carved in the 1950s and '60s by prospectors who used dynamite to locate mineral deposits. San Juan County is claiming it under R.S. 2477.

"They were never planning on coming back," Walker said of the prospectors, who are said to have been paid by the mile. "Someone else comes along and sees the tire tracks and tries the road, even though there's nothing there."

Wearing a blue bucket hat, running shorts and sandals, Walker said he takes pride in finding the faintest R.S. 2477 claims. He mapped many of these routes decades ago while taking an inventory of roadless lands for the Utah Wilderness Coalition, of which SUWA is a member.

He said many of the counties' R.S. 2477 routes were even fainter when he first walked them 15 years ago. Since the lawsuits were filed, counties have systematically driven all the routes, he said.

"When the counties claim they need these roads, it's disingenuous and demonstrably false," he said. "What they really want is to control the land."

Once an R.S. 2477 claim is granted, BLM has almost no way to close them down, even if it needs to preserve them for wildlife or quiet recreation. It effectively precludes future wilderness.

"These are federal lands, and the federal government should be able to manage them in a rational way and not encumbered by this loophole in a very ancient law," Walker said. "To me, the whole thing is a travesty."

A handful of other R.S. 2477 road claims spur haphazardly from the Browns Hole Road. One of them narrows into a rocky trough before petering out into the juniper and pinyon flats.

In the late 1990s, Grand County decided to increase the miles of Class B roads in its system to prevent a reduction in state subsidies for road maintenance, Walker said. It unilaterally bladed minor roads and unmaintained jeep trails, he said, but "BLM didn't have the guts to stand up to them."

Several miles south of here, the R.S. 2477 battle is playing out at Hatch Point, a sagebrush plateau coveted by oil and gas and potash developers as well as SUWA and the Sierra Club, which have proposed including the land in a 1.4-million-acre Greater Canyonlands National Monument.

A 22-mile paved road takes visitors to the Needles Overlook, which offers miles of stunning views over labyrinth red rock canyons underneath Canyonlands park.

Hatch Point has plenty of dirt roads, though the area's dense brush, rock buttes and spires make them hard to see. San Juan has staked dozens of R.S. 2477 claims here.

One of them leads to a dried-up stock pond and a field of invasive cheatgrass and Russian thistle. It fades a couple of hundred yards into the desert before disappearing.

"It just goes out here and dies," said Liz Thomas, an attorney for SUWA. "It doesn't circle back. It wasn't intended to go anywhere."

Court-awarded road claims would make the area an easier target for mineral development and potentially a weaker candidate for a national monument.

'A wasting kind of witness'

Roads support San Juan's mineral economy -- oil, gas and mining account for 60 percent of its tax base -- but they also preserve recreation, said John Fellmeth, who helps run the county's roads preservation project.

San Juan claimed roughly 1,800 roads in its R.S. 2477 lawsuit, even though some have never been driven by county officials.

"It looks like there might be a nice overlook," Fellmeth said, pointing to a narrow rust-colored dirt path at Hatch Point.

He was joined by Nick Sandberg, the county's public lands coordinator who previously worked more than 30 years at BLM's Monticello field office, which oversees Hatch Point.

Neither was sure where the road went or what it was used for.

It likely provided access for livestock growers, Sandberg said, pointing to a salt block on the side of the road that may have nourished cows or sheep.

The road ended at the plateau's edge, where a dirt clearing offered sweeping views of Heart Canyon nearly a thousand feet below and the "six shooter" pinnacle -- a sandstone spire named by early cowboys for its resemblance to pistols. The jagged rocks of Canyonlands could be seen in the distance.

The road certainly led somewhere, though whether it is a "highway" is a matter of dispute that will be decided by a federal judge.

Fellmeth said there are about 80 "at-risk" witnesses in San Juan. Some testify on as many as 60 roads in a day, he said.

"Most of them are fairly old, and even those who are still with us, their mental faculties are deteriorating quite dramatically," he said. "It's a wasting kind of witness."

Critics have questioned whether witnesses in their 70s or 80s could accurately identify the roads they used when Lyndon Johnson was president.

Before they testify, witnesses are driven on the roads by the state's attorneys to "refresh their recollection," said Bloch, the attorney from SUWA.

Courts will have to wrestle with issues of credibility, as they do with all trials.

From the Needles Overlook at Hatch Point, Fellmeth pointed to an airstrip about a thousand feet below that may have been used to transport oil and gas equipment to the Lockhart Basin.

Visual clues like that can help orient R.S. 2477 witnesses, Fellmeth said.

However, they can also be deceiving. Less than a mile away is a similar airstrip with similar red rock surroundings.

'We have a high card'

County officials in Utah see R.S. 2477 as a potent defense against the president's use of the Antiquities Act to designate national monuments.

The 1906 law is controversial in Utah, where President Clinton designated the 1.9-million-acre Grand Staircase-Escalante National Monument in 1996 over the objections of local officials. Monuments bar future mineral claims.

R.S. 2477 adds another twist to Utah's political mine field.

"It just gives the counties an extra card to play that they haven't had in the past," said Lynn Jackson, a councilman for Grand County, whose economy depends heavily on mountain bikers, off-highway vehicle riders and national park visitors.

"We know we have a high card," Jackson said. "For now, we're just going to tuck it up our sleeve, and if we need it, we'll play it."

Utah counties were politically emboldened by Kane County's R.S. 2477 victory, Jackson said. Grand and five other counties are currently negotiating with conservationists and other stakeholders on a major public lands bill.

"SUWA is concerned," Jackson said. "If we take all these 12,000 segments, they're saying 'Holy crap, we're likely to lose all that ... maybe we should negotiate.'"

Jackson, who formerly worked for BLM for 32 years, opposes the proposed Canyonlands National Monument, which he argued would hamper oil and gas and potash development in Grand, stifling economic diversification.

On a recent drive through the butte-marked desert lands northwest of Moab, Jackson pointed to a sandy, riparian wash passable only by motorcycles that descends to an overlook above the Green River.

The path, an R.S. 2477 claim, was kept open in BLM's travel management plan, even though conservationists wanted it closed, Jackson said. The county believes it should have the final say over who uses the road.

"That's a huge draw to the motorized recreation economy," he said. "They're the ones who spend the most money around here."

A spreading fight?

Litigating all of Utah's R.S. 2477 roads to the 10th Circuit could take well over a decade and cost billions of dollars.

"Obviously it's kind of insane to try to litigate 12,000 roads," said one top Interior official who asked not to be named. The first Kane County case, which involved 15 roads, took nine days of trial and field trips, the official said.

The hope is that as cases are decided at the appellate court level, parties will have a better foundation for settlement talks.

Since March, a handful of cases in Garfield, Kane, Emery and San Juan counties have been active. Meanwhile, the state is continuing to depose its old and infirm witnesses in case the rest of the roughly 20 cases become active.

While conservationists have criticized the state's lawsuits as a waste of taxpayer money, the R.S. 2477 campaign is widely supported in the Utah Legislature, where lawmakers earlier this year passed a special appropriation to compensate counties for legal services from outside firms including Holland & Hart. The firm is estimated to have provided at least $1.8 million in services to Kane County alone, The Salt Lake Tribune reported in March, citing former BLM Director and Utah public lands official Kathleen Clarke.

Under the plan, the state would pay for half of the first $700,000 in legal bills a county incurs and would pay the majority of bills beyond that.

Conservationists are skeptical whether the federal government will adequately represent their interests.

According to SUWA's Bloch, conservation groups have twice as many attorneys working on R.S. 2477 cases than the Justice Department. Pro bono work is being provided by law firms Kirkland & Ellis LLP, Cooley LLP and Jenner & Block LLP, he said. There are also two local Salt Lake City firms, former Earthjustice attorney Robert Wiygul, and SUWA and Wilderness Society attorneys working on the cases.

The federal government's appeal of the Kane County case to the 10th Circuit was heartening, Bloch said.

Utah counties have lost some notable R.S. 2477 cases too.

For example, a federal district judge in 2011 rejected San Juan County's claim that several miles of Salt Creek Canyon in Canyonlands National Park was an R.S. 2477 route. "A jeep trail on a creek bed, with its shifting sand and intermittent floods is a by-way, but not a highway," wrote U.S. District Judge Bruce Jenkins (Land Letter, June 2, 2011).

San Juan and Utah appealed the case to the 10th Circuit, which could issue a decision any day.

Utah's R.S. 2477 claims are being closely watched by environmental attorneys as well as other Western states looking to loosen Washington, D.C.'s reins over public lands.

The Vermont Law School included Utah's road claims in its "Top 10 Environmental Watch List 2013," warning that if federal courts affirm even a fraction of the state's claims, it could set off a cascade of threats to national parks, wilderness study areas, monuments and other protected lands across the West.

"Other western states are likely watching Utah's land grab, waiting to see what the federal courts will do with these 26 claims," wrote Hillary Hoffmann, a professor at the law school, and student Sara Imperiale.

Alaska has already earmarked money to study potential R.S. 2477 claims, and Nevada, the birthplace of the Sagebrush Rebellion, would jump on the R.S. 2477 "bandwagon" if Utah prevails in its lawsuits, Hoffmann and Imperiale said.

Attempts to settle

The ongoing litigation has created a great deal of uncertainty on all sides, including BLM, said Robert Keiter, a professor of public lands for the University of Utah who serves on the board of the National Parks Conservation Association, which has criticized the state's road claims.

"That impacts the BLM's ability to make long-term land and resource management decisions wherever these claims are being pressed," he said.

The road claims also complicate a broader effort by Utah GOP Rep. Rob Bishop to pass a comprehensive public lands bill for six eastern Utah counties -- Uintah, Emery, Carbon, Grand, Wayne and San Juan -- that would consolidate lands for oil and gas, potash and mining development while designating others for off-highway vehicles, mountain bikes and wilderness.

Bishop said conservation groups he is working with -- which include SUWA, the Wilderness Society, the Pew Charitable Trusts, the Sierra Club and the Nature Conservancy -- have "legitimate concerns" that future road claims could tarnish wilderness designations, which, by definition, aim to keep the lands "untrammeled by man."

Scott Groene, executive director of SUWA, said Washington County in 2009 agreed to have wilderness designations under legislation passed by former Sen. Bob Bennett (R-Utah) but has since filed R.S. 2477 claims in those areas.

"Utah's 20-plus lawsuits against the United States over R.S. 2477 may be the biggest hurdle to overcome in trying to reach agreement here," Groene said. "Fortunately, Congressman Bishop has said he believes the R.S. 2477 issue should be resolved as part of this legislation. We are in agreement with him on this point."

Last month, the various sides reached a rare accord to amicably resolve a handful of the disputed road claims in remote mountains west of Salt Lake City.

BLM, Utah, Juab County and environmental groups announced a settlement designed to balance the protection of primitive lands in the Deep Creek Mountains wilderness study area with access for motorized vehicle users (Greenwire, Aug. 20).

It marked the first negotiated settlement in Utah's larger bid over the R.S. 2477 claims.

Congress has tried unsuccessfully a handful of times to address the conflict.

Bills by then-Rep. Mark Udall (D-Colo.) nearly a decade ago sought to narrow the definition of R.S. 2477 rights of ways. Bills by Rep. Steve Pearce (R-N.M.) in 2006 and 2007 would have given states and counties more influence in the process. But lawmakers have done little since then.

Some observers are hopeful Bishop can resolve some claims in eastern Utah.

"There's an opportunity for some, if not all, of those roads to be addressed as a result of this legislative process," said Cody Stewart, an energy adviser for Herbert and former Bishop aide. "It may be one of the negotiated pieces that helps bring this across the finish line."