Courtroom defeat won't stop Utah in roads fight

By Amy Joi O'Donoghue
KSL.com

SALT LAKE CITY — The state of Utah and San Juan County may have lost a key fight over access to a road in Canyonlands National Park, but the roads war being waged against the U.S. government is far from over.

On Friday, the 10th Circuit Court of Appeals ruled that Utah and San Juan County failed to prove that Salt Creek Canyon Road was a "public thoroughfare," meaning the road remains off-limits to their rights-of-way claims under a Civil War-era statute.

“It would be mistake to consider this decision limiting us from going forward in our other road cases,” said Harry Souvall, public lands section chief for the Utah Attorney General's Office. He added that the decision provides clarity on such issues as statutes of limitations, but does not shut down the state and counties' case in claims to 12,000 other roads.

In their ruling, justices rejected the state's argument that uninterrupted periodic use over a 10-year period was sufficient to establish a claim to the dirt road — and therefore access by motorized vehicles.

"The state and county failed to carry their burden of establishing 10 years of continuous public use of the Salt Creek Road as a public thoroughfare prior to (establishment) of the Canyonlands National Park in 1964," the opinion read.

It would be mistake to consider this decision limiting us from going forward in our other road cases.
–Harry Souvall, Utah AG's office

The Southern Utah Wilderness Alliance hailed the ruling as key to protecting valuable natural resources within Canyonlands.

"For Salt Creek Canyon, it is a great decision," said Steve Bloch, attorney with the organization. "It means the only perennial stream in the park outside the Green and Colorado rivers will remain protected from signficant adverse impacts of motorized travel."

The issue

At issue is the question of motorized use of an unimproved 12.3-mile road that is intertwined with a creek bed in Salt Creek Canyon. The state argued that periodic historic use by cattle ranchers, uranium miners and tourists was enough to elevate the route to claims under the so-called RS2477 statute.

Before the 1995 implementation of a backcountry management plan for the park, access to the road was unrestricted and then modified to a permit-system only.

At that time, the Southern Utah Wilderness Alliance challenged the park service's decision to keep the road open, arguing that continued motorized use of the trail ruined the perennial stream and posed risks of damaging prized archaeological resources in the area.

By 2004, the park service decided to lock the gate on the road, prompting the lawsuit by San Juan County and the state, which claimed its historic use over the years constituted status as a roadway or public thoroughfare.

The state pointed to grazing uses in the late 1880s or early 1890s that gradually increased through the 1950s, uranium mining and exploration in the 1950s, and uses of the canyon by Boy Scouts and tourists beginning as early as the 1950s.

Supporters of preserving access, including the Utah Shared Access Alliance and the Blue Ribbon Coalition, also argued that the road is the primary route for tourists to reach several scenic sites within the park, including Angel Arch.

While the state argued that no "particular frequency" was required under the claim as long as there was no formal interruption of access by the federal government, the court disagreed in its Friday decision, upholding the ruling of the U.S. District Court for Utah.

"While we agree uninterrupted use is necessary, it is not alone sufficient to demonstrate the existence of a public thoroughfare for purposes of RS2477," the court said. "The intensity of public use remains a component in determining the existence of a public thoroughfare."

Important for upcoming cases

Bloch said the Salt Creek ruling helps to flesh out important case law for other road claim cases to come.

"This ruling is another piece of the puzzle in figuring out what types of claims are not sufficient," he said. "We are going to continue to scrutinize it closely and rely on it to defeat similar claims that stream bottoms and cow paths and other dirt trails are highways."

Bloch predicted that the ruling may come into play with another case in Kane County that is also on appeal before the 10th Circuit and scheduled to be heard in September.

There are only 14,000-plus more claims to go. The state has a long, hard road to hoe if they are going to continue this push.
–Steve Bloch, SUWA attorney

"There are only 14,000-plus more claims to go," he said. "The state has a long, hard road to hoe if they are going to continue this push."

Souvall, however, stands by the distinction that the state should only have to prove "available" use over a 10-year period, and frequency need not come into play in a legal claim for the right of way. However, he added, the state is developing evidence of "frequency of use" in other road cases to meet the standard.

That nuance in the argument may prompt a request for an en banc hearing by the full panel of judges to weigh the merits of the state's claims to Salt Creek Road.

Utah is in its second year of an all-out battle over access to roads or routes in 22 of its 29 counties. In 2012, the claims were consolidated into one lawsuit against the U.S. Department of Interior over RS2477 roads, which were part of a transportation network established via an 1866 law to foster movement in the West.

While the statute has since been repealed with the adoption of the Federal Land Management Policy Act, the state's and counties' rights of way to roads that already existed were grandfathered in.