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Roads to Ruin

How a 137-year-old mining law directs the wilderness debate of Utah and the nation.



It was a hot, early-autumn day in 1996 on Hart’s Point near Canyonlands National Park when wilderness activist Dan Kent decided it was time to make a stand. The county of San Juan decided to do the same, and it wouldn’t be long before the two would meet.

County officials all over southern Utah felt blindsided and helpless in the face of two developments that year. In the middle of September, with the stroke of a pen and with the backing of the 1906 Antiquities Act, President Clinton created the Grand Staircase-Escalante National Monument in nearby Kane County. On top of that, the Interior Department was about to direct the Bureau of Land Management (BLM) to re-examine, or “reinventory,” southern Utah wilderness for a whole new round of claims under a new congressional resolution. Lands designated wilderness, or even designated temporary wilderness study areas, were safe from grazing, logging, off-road vehicles and exploration from oil and gas. In other words, safe from development and the revenue cash-strapped rural Utah counties so desperately needed.

To punch a hole through any future wilderness designation, all that’s needed is a road—preferably, a whole network of roads spiderwebbing routes through any self-contained 5,000-acre area of yet-undeveloped land. Both wilderness advocates and county officials knew this paramount fact. So it was no surprise that county officials called out their construction crews. Garfield County sent crews out to blade dirt roads in the Henry Mountains area, Wolverine Loop and Devil’s Garden, places the BLM deemed “outstanding natural areas.” Kane County was also in on the action, steering graders through the wilderness study areas of Burning Hills and Moquith Mountain.

Kent, along with three others, was waiting for the moment when a grader made its way through Hart’s Point. He’d decided on a plan of action as recently as that morning.

“We knew they were grading these roads, so we just said, ‘Let’s go. Let’s go stop this,’” he remembers.

So they stood in front of the oncoming grader with hands up, waging quiet war with the big yellow machine in front of them, motioning the driver to stop.

“The grader operator took one look at us, stopped the engine and went over to a shade to have lunch,” Kent recalls. Tension would later pick up with the arrival of a county sheriff, BLM area manager and a bevy of San Juan County deputies.

The BLM knew full well what the counties were up to. In fact, it issued county officials several cease and desist orders to stop grading roads. In some cases, the BLM also ordered notices of trespass, as Kent remembers.

“It was kind of a circus at that point,” he says. “We told them, ‘You’re the ones breaking the law, and we’re going to stand here and prevent you from doing this.’”

When the sheriff phoned the San Juan attorney’s office, it denied having received either the desist order or trespass notice. Kent wasn’t moving. Four deputies dragged him off, hauled him away and stuffed him into the squad car.

“It was a mockery and sham of the law, so I refused to give them any identification,” Kent says. After a night in the county drunk tank, he was out on bail. In the end, he paid a $500 fine. The issue of grading roads, as with so many other questions about the preservation of American wilderness lands, ended up in court. In the end, the Southern Utah Wilderness Alliance secured an injunction to stop the counties from grading roads. Meanwhile, the counties and state of Utah waged a larger battle. They filed suit that same year against the Clinton administration and Interior Secretary Bruce Babbitt to stop the federal government from surveying southern Utah land for any further wilderness study areas. Kent, and thousands of other wilderness activists like him, is painfully aware of who’s winning the current battle.

“Back then [1996], we had BLM support. Now we don’t,” he said. “The naked truth is before us with the Bush administration. They told us from the start that they would undermine federal lands protection, and that’s exactly what they’re doing. Even though there are lots of good people in the BLM, they’re afraid to do the right thing.”

To hear Kent talk about recent developments, whole jails would be full if wilderness activists stood in front of Utah county construction crews and graders. Following the much-publicized actions of Utah Gov. Mike Leavitt and Interior Secretary Gale Norton—an April 11 settlement rolling back temporary protection of 5.9 million acres of wilderness study areas, coupled with a new agreement that would expand the rights of counties to claim road rights-of-way—Kent says he’s witnessed a flurry of new activity. Two new roads are being bulldozed just southeast of the Canyonlands National Park boundary. Another road is being graded up to Jacob’s Chair, a stunning butte near White Canyon named after a cowboy who lost his life in a flash flood.

“San Juan County is out there with bulldozers constructing new trails, and the BLM is doing nothing to stop them,” he said. “That is my claim. The BLM will deny it, I’m sure.”

And, in fact, an official with the BLM office in Monticello, Utah, said he’s not aware of any new roads being graded, bladed or constructed. Kent is adamant.

“I know this for a fact, because I helped inventory these lands,” he said. “All of this has happened since the settlement. The original patriots dumped tea in the harbor. It’s too bad we can’t chase some of these developers off the land.”

In the canyonlands of southern Utah, and around the whole geography of the Colorado Plateau desert extending down into Arizona, the splendors of America’s red-rock country inspire deep passions and a fierce duty to protect them from harm and preserve them for future generations. The narrative steward and most popular guardian spirit of these stunning landscapes has long been the late author and essayist Edward Abbey. What Henry David Thoreau did for Concord and Walden, Abbey did for the desert of the American West. His best-known work, The Monkey Wrench Gang, chronicled the exploits and adventures of a self-styled group of activists who revel in sabotaging the efforts of anyone ignorant and audacious enough to dam, bridge, billboard, strip mine or pave the pristine beauty of the southern Utah desert. Although a piece of fiction, its spirit rang true for dozens of readers who would still never go so far as to dynamite a grader or bulldozer. Yet.

When Congress established the national wilderness system in 1964, it did so with the hopes of preserving wilderness areas from motorized transportation and man-made structures so that the lands’ “outstanding opportunities” for solitude and recreation might be forever preserved in areas “where man himself is a visitor who does not remain.”

Since the dawn of the Johnson administration, Congress has deemed 106 million acres of American land worthy of the national wilderness system. About half of that lies in Alaska. For 12 years, it was the duty of the U.S. Forest Service to identify lands worthy of protection. With the 1976 Federal Land Policy and Management Act (FLPMA), the BLM came to share that responsibility. Under Section 603 of the act, die-hard wilderness buffs and assorted armchair environmentalists across the nation were granted a 15-year window to identify or “inventory” wilderness lands for preservation. The BLM conducted the inventory, passed its findings on to the Interior Department, which in turn submitted its findings to the president. Since the U.S. Constitution grants all final decisions regarding land management to Congress, it’s this vast body of elected representatives that hears the president’s recommendations and then decides how many lands will be admitted to the national wilderness system. So it is that while nature carries out its endless cycles in the vast beauty of the Utah wilderness, suited bureaucrats, lobbyists and an endless rotation of elected representatives who come and go execute the real life-and-death decisions about which parcels end up protected and which are given over to development and hordes of off-road vehicles (ORVs), off-highway vehicles (OHVs) and all-terrain vehicles (ATVs).

And as you’ve probably guessed by now, the fate of much of that land depends on who’s in office. When the clock ran out on Section 603 in 1991, Congress decided that of the BLM’s total 262 million acres of land, it would protect 6.5 million acres of BLM land wilderness and let another 15.5 million acres hang suspended as “wilderness study areas” for possible future inclusion. By itself, Utah ended up with 3.2 million acres of hands-off, absolutely no development acres of wilderness. Such was the beauty and majesty of the land, however, that wilderness advocates couldn’t help but point out all the wondrous spots that somehow missed the BLM’s supposedly careful scrutiny. This crowd found a receptive ear in the Clinton administration. It also had its own favorite sections of the Federal Land Policy Management Act: Section 201, which instructs the Interior Department to inventory federal land for all kinds of different resources, and Section 202, which gives the BLM management responsibilities for each identified land resource, of which wilderness is one.

In 1996, then-Interior Secretary Bruce Babbitt called for another BLM inventory of wilderness land. That year marked the beginning of the so-called “Wilderness Handbook,” the nickname for a set of guidelines that required the bureau to evaluate disputed lands publicly before making management decisions. Using those guidelines, the bureau reinventoried Utah lands and found another 2.6 million acres worthy of interim protection as wilderness, with another 3.3 million acres worth somewhat lesser protections. Wilderness advocates’ long-sought goal of more than 9 million acres of potential wilderness had been reached. Now if only Congress would get off its duff and vote on a wilderness bill.

It wasn’t to be. Congress never voted, and there was a decidedly new game in town. With George W. Bush in office, and Interior Secretary Gale Norton behind her new desk, Babbitt’s Wilderness Handbook was ripe for shredding. There were plenty of willing participants who wanted in on the action. Never mind that the majority of President Bush’s Interior appointees carried with them work experience in the gas, oil, timber and cattlemen’s associations.

Meanwhile, a legal challenge Utah had filed suit against Babbitt and the Clinton administration in 1996 worked its way through the courts. Of the state’s many claims, one survived the 10th Circuit Court: the state’s contention that the BLM cannott legally manage wilderness study land as if it were designated official wilderness. Over time, state attorneys felt they’d amassed enough evidence to prove their remaining claim and, by March of this year, had amended their complaint. On April 11, a settlement was reached that declared Section 603’s deadline triumphant over the management responsibilities defined in Sections 201 and 202. Almost 6 million acres of potential Utah wilderness were rolled back. (The action was not limited to Utah. In separate agreements with other states, Colorado lost 600,000 acres of potential wilderness, while 1 million acres in the Grand Canyon Parashant and Vermillion Cliffs in Arizona were rolled back. Millions more in California, Idaho and Nevada were also lost.) Under terms of the agreement, the Department of Interior agreed to rescind the acres identified in the Wilderness Handbook, and stop conducting wilderness reviews and inventories outside the deadline set in Section 603. In other words, the Department of Interior had to admit that the time for identifying and designating more wilderness areas had past.

Gov. Leavitt and Secretary Norton smiled for the cameras in Washington, D.C., while Utah Attorney General Mark Shurtleff issued a gushing press release praising the agreement as a huge victory for Utahns in general and Utah’s school children in particular. The state’s burgeoning student population would no doubt benefit from revenue extracted from natural resources on land now available to the Utah School and Institutional Trust Lands Administration.

Needless to say, a whole lot of county commissioners in rural Utah were happy, too. “I was elated,” said Maloy Dodds, a Garfield County Commissioner for nine years.

And needless to say, wilderness advocates have already filed for a federal appeal challenging the settlement. They contend it runs contrary to the National Environmental Policy Act and a 9th Circuit Court of Appeals ruling last December that bans building roads on national forest lands as well as the BLM’s right to inventory lands for wilderness under Sections 201 and 202 of FLPMA.

What does all this have to do with road claims set forth in a 137-year-old law, called Revised Statute 2477? Basically, everything. Land freed from the protections of official designation as a wilderness study area is land that anyone can run a road through. And once that road is worn and claimed, future wilderness designation is next to impossible. Say hello to oil drilling, livestock grazing, strip mining and paving.

“Where is the future of Utah wilderness?” asks Gail Hoskisson, a representative for the Southern Utah Wilderness Alliance in Washington, D.C. “It’s completely in the hands of R.S. 2477.”

Heidi McIntosh, SUWA’s conservation director in Salt Lake City, has a ready-made mantra whenever she’s asked about the statute: “R.S. 2477 is a get-out-of-the-wilderness-free card,” she says.

Only as conflict ratcheted between those who would develop the land and those who wouldn’t did R.S. 2477 come into focus. Part of an 1866 mining law written specifically to promote westward expansion and prospect mining, and therefore the prodigious construction of roads, it’s slightly longer than one of the Ten Commandments: “The right-of-way for the construction of highways across public lands not reserved for public purposes is hereby granted.”

But commandments are so often broken or at least bent. In addition to setting the parameters of future land management when it was passed in 1976, FLPMA also repealed R.S. 2477, while simultaneously grandfathering in roads created for travel and transportation before October 1976. Today, there’s almost unanimous agreement that FLPMA failed to douse the controversy over what can be defined as a road or “highway.” Two big problems remain. First, it failed to set a deadline for asserting road rights-of-way. Second, it never required written evidence of who owns the right-of-way.

So naturally, people hammer out these arguments in court—and on Websites. For the wilderness contingent, a road under R.S. 2477 is a “highway,” or at least a road that will accommodate all four wheels of a jeep, truck or car. Traveling deep into southern Utah to investigate county claims to “highways,” wilderness advocates found occasion for plenty of humor amid contention. Scrolling and clicking your way through the “R.S. 2477 Photo Gallery” hosted by the Southern Utah Wilderness Alliance, you can practically hear the chuckles jump of the computer screen.

“The slot in the photo on the right is narrower than the width of a normal vehicle,” reads the photo caption accompanying a hiking trail that leads to a canyon river. “To get into the slot, a motorist on this Garfield County ‘highway’ would have to drive down a waterfall. Even AAA service doesn’t reach this far.”

Wilderness advocates might be shocked to learn that many county officials and off-road vehicle aficionados are laughing right along with them—albeit, with a straight face. For this crowd, a “highway” is not a claim but a grant every American has a right to. What’s more, a valid R.S. 2477 road can be established merely by the passage of vehicles. Those old hiking trails used by crusty prospectors near the turn of the century? Those washed-out old roads used by miners during the uranium boom of the 1940s and ’50s? Yep, they’re “highways.”

“The essential element in defining ‘highway’ is that whatever the means of transport, the public has the right to come and go at will,” states a Website developed by the Western Counties’ Resource Policy Institute. “Whether a road is barely visible on the ground or even has been obliterated for any other reason, the legal status of the right-of-way is not affected. The grantee can legally re-establish the road even if it has totally disappeared.” Anyone who says otherwise is a lying “anti-access activist,” and only the U.S. Congress has the right to delegate authority over R.S. 2477 roads.

At least one federal judge in Utah has begged to disagree. In a June 2001 ruling, Judge Tena Campbell ruled in favor of SUWA and the Sierra Club in a suit against three southern Utah counties. The BLM has the right, she ruled, to grant rights-of-way on federal land in reasonable consideration of land use policies and other environmental, safety and economic issues.

It’s hard to tell how many similar federal court decisions it will take to wrestle with the more recent rule changes to R.S. 2477—changes designed to make it easier for rural counties to get what they want in terms of claims to right-of-way. With Bush’s new Department of Interior team firmly in place, those rule changes were proposed by the BLM in February 2002 and finalized in January. Utah Gov. Mike Leavitt had always made it clear that he never liked Department of Interior meddling when it came to county roads, threatening to sue the Interior Department in June 2000. But with the new R.S. 2477 rule change greasing the wheels for more power behind county road claims, such a lawsuit seemed pointless.

Once again, Leavitt and Norton found that they had an awful lot to agree upon. Not only should 5.9 million acres of potential wilderness protection be dustbinned, as per their April 11 settlement, they would also set the stage for more county right-of-way claims on those very acres. This was the one-two punch that the wilderness contingent was about to suffer. While the April 11 rollback perhaps received more publicity, some see an April 9 “Memorandum of Understanding” regarding county road claims as a more insidious creature. The April 11 settlement, painful as it was, merely removed potential wilderness protection. The April 9 agreement was designed to finish off those acres once and for all through the mechanism of R.S. 2477. At least, that’s the view of wilderness advocates. Read simply, the agreement establishes a process by which counties may claim rights-of-way to roads and outlines the requirements claimed roads must pass. If a county’s claims to certain roads pass under the agreement, then Utah’s BLM director will record a disclaimer of interest and issue it to the Department of Interior.

For someone like Hoskisson, who licked stamps as a SUWA volunteer 10 years ago and worked 40-hour weeks on top of a regular work schedule in an effort to inventory lands for Babbitt’s “Wilderness Handbook,” the pain of these developments is palpable. “It seems like every morning you wake up the rug gets pulled out from under you in just one more way,” she said.

For county commissioners such as Dodds, the wilderness settlement and R.S. 2477 agreement bring visions of more coal mining and more jobs. “I think it’s a terrible argument that tourism can take the place of manufacturing and other industries. I would be 10 times happier to have an industry job in Garfield County than a tourism job,” he said from his office in Panguitch. “I’m not saying tourism’s bad. We’re probably the most tourism-dependent county in the state, but we’ve got all our eggs in one basket.”

Most everyone understands the April 11 settlement in all its stark terms, even if they’ll argue about the competing clauses of the various sections. The R.S. 2477 agreement, by contrast, is rife with confusion, suspicion and, as Utah Assistant Attorney General John Boyden calls it, “spin.”

Gov. Leavitt has gone on record stating that the agreement “includes no roads in national parks, wilderness areas, wilderness study areas or fish and wildlife refuges.” Wilderness advocates say that’s a ruse. The state will lock hands with the counties to claim the easiest, least controversial roads first and then move on to thornier claims inside sensitive areas later. Gov. Leavitt has said the new agreement creates the first open, administrative process for filing road claims. That’s a refreshing break from the millions of dollars both sides have spent in court battling over competing claims. Wilderness advocates say that, too, is a ruse. This so-called “open” process excludes the public by concealing county road claims until they finally surface for token periods of public comment. By that time, the road claim in question is a foregone conclusion.

Utah Assistant Attorney General Boyden defends the R.S. 2477 agreement as a necessary step to preserve Utah county transportation systems through a process that will secure written evidence of ownership of rights of way. He defends roads generally, too. Roads are a mark of great civilizations. Just look at the Romans. The recent agreement is not an attempt to see what the state and counties could conceivably get away with by claiming rights of way through wilderness areas, wilderness study areas, national parks or wildlife refuges, he said. The goal is to move through the least controversial claims first. There’s plenty of room between his words to set off alarms, though.

“All we did was simply defer that [the issue of road claims in sensitive areas] and move on to other claims,” he said. “I can’t prejudge that the state and counties would want to go any further. We are certainly not waiving any rights that we have in those areas. We just want to see how much of the problem can be solved without going there first.”

What’s most important to remember about this agreement, says the wilderness contingent, is that it does little to answer the essential question of which roads qualify as “highways.” Some even question whether the agreement between Leavitt and Norton is legal. Ted Zukoski, an attorney with Denver-based Earthjustice, emphatically said it’s not. Unhappy with Babbitt’s attempt to modify R.S. 2477 claims in 1994, Congress voted in 1997 to prohibit the Interior Department from issuing final rules related to the statute. The decision was a general moratorium on all changes to the statute until Congress, the last word on federal land management, could decide exactly what it wanted to do with the law. Just as people waited with bated breath to see what would be added to the national wilderness system and when, so too would people have to wait on Congress for a final decision about R.S. 2477 specifications. So far, the brightest hope is a bill sponsored by U.S. Rep. Mark Udall (D-Boulder, Colo.) that sets a deadline on R.S. 2477 claims once and for all. Anything not claimed after a four-year period would be considered abandoned. For Zukoski, the agreement between Leavitt and Norton is nothing more than an effective wilderness-killing tool. It’s cowardly, too, since it attempts to run around Congressional authority on the matter.

“Only in Utah could the nature of a state highway system be considered a state secret. They’re hiding this information even from the counties,” he said. “We had to sue the BLM to find out what maps Utah submitted in the year 2000. These road claims showed every hiking trail in Zion National Park and all over the Navajo reservation—you name it, they claim it. Maybe the reason they want to keep it all secret is because they’re embarrassed about what they’re claiming.”

This much is true: Attorneys for the state of Utah have amassed maps over a three-year period for purposes of a $4.2 million database. Utah claims more than 15,000 roads strewn across the state, and that number could easily climb. Utah has already submitted 29 maps of road claims to the Department of Interior on file at the BLM’s downtown Salt Lake City office. After SUWA filed an Freedom of Information Act several months ago, they became public. Perusing the maps, Wasatch Mountain Club conservation director Will McCarvill found that while Salt Lake County claimed about 15 rights-of-way, the state had claimed hundreds of others on its behalf, many of which cut across the protected wilderness areas of Lone Peak, Twin Peaks and Mt. Olympus amid the Big and Little Cottonwood Canyons. Members of the Sierra Club’s Utah chapter, Save Our Canyons and SUWA have asked the Salt Lake County mayor and County Council members to take action before those claims are taken any further. What’s most irksome is the way these claims have been submitted by the state sans any public comment or public process.

“If the governor and others who helped draft the memorandum say there will be no claims of right-of-way across wilderness areas, then why are there road claims across these areas in Salt Lake County? If the governor doesn’t erase these claims, then what does that tell you?” McCarvill asked. “If he holds on to them, you have to conclude it’s for some purpose, possibly for off-road vehicle recreation or real-estate development.”

Boyden said it’s easy for opponents to unfairly characterize the state’s road-claim submissions and expensive database as part of some secret plot.

“But I’ll tell you this,” he said. “We’re proceeding on the assumption that we’re going to have to litigate these claims, and we’re preparing for litigation. This will be one of the largest cases brought to court when you measure it in terms of the volume of evidence—all the technical data, photographs and documentary evidence. Even the state of Utah has the right to prepare for litigation without everybody meddling in it. That’s what we’re doing.”

Barring a sudden settlement, of course. Throughout the mounting storm of reaction to both the wilderness agreement and the R.S. 2477 settlement, Leavitt has maintained an image of utmost calm and willingness to come to the table.

“He was born in Cedar City and spent most of his childhood in the shadows of national parks around there. From that standpoint, he’s quite familiar with Utah’s red-rock country, and he has an enduring interest in that. That’s why he wants to be the governor who solves the BLM wilderness problem,” said the governor’s spokesperson Natalie Gochnour. “We’re interested in finding broad agreement on these issues, but there are extremes that won’t make peace. I work for an administration that’s looking for partners—and it runs both ways, from the counties to parties of extreme wilderness advocates.”

Nothing stormed Leavitt’s gates quite like the Outdoor Industry Association’s recent threat to move its twice-annual convention, and $24 million worth of resulting state revenue, outside Utah. Leavitt listened to their concerns long and hard during a marathon three-hour meeting with heads of the outdoor industry. No promises were made, and no deals struck, but a dialogue was established and the governor was made well aware of how important pristine wilderness areas are to outdoor recreation enthusiasts. Black Diamond climbing equipment company owner Peter Metcalf, who urged the association to think of relocating the trade show, was impressed.

“He was extending an olive branch to work with us,” Metcalf said. “As far as commitments to specific requests we had, we didn’t make as much progress as we hoped. However, in the nearly three hours we had we realized that wouldn’t be possible in the here and now. Of course, we’d like to see deliverables down the line.”

Specific to R.S. 2477, Metcalf said Leavitt agreed to forgo all R.S. 2477 claims forever on wilderness areas, wilderness study areas, national parks and wildlife refuge lands.

“We believe that’s what he told us. We believe that’s what we heard from him,” Metcalf said. Which is better than nothing. When you’re a wilderness advocate suffering so many recent defeats, all while beating back the opponent in courts of law and public opinion, it helps to fall back on optimism.

“You can equate this whole struggle to the Middle East. It’s a conflict that begs for creativity and boldness. Meetings like this give us an opportunity to make things happen without saying we’ve all seen this happening before,” Metcalf said. “What Leavitt said was significant, because the governor of Colorado is already laying R.S. 2477 claims all over that state.”