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Off-Road Rules

Should you be able to drive anywhere you damn well please? An alliance of local officials and timber, mining, and off-road-vehicle lobbyists—along with their friends in the White House—have dug up a Civil-War-era statute to stake road claims all over the West.

| Sat Jun. 30, 2007 3:00 AM EDT

For Kiley Miller and John Rzeczycki, owners of 160 acres of wild desert outside Moab, Utah, Easter brings jeeps. Hummers, too, and modified pickups, and stripped-down rock crawlers—by the tens of thousands they descend on Moab for the annual Easter Jeep Safari, one of the nation's largest off-road-vehicle events. The jeeps whine through gears on a windswept uplift named Black Ridge near the couple's property, leaving a spoor of beer cans and brake fluid. Once, a group of jeepers left a message on one of the Private Property signs Miller and Rzeczyckihad put up—a noose, as carefully knotted as a girl's braid.

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Carpenters by trade and rock climbers by choice, Miller, 36, and Rzeczycki, 37, came to Black Ridge in 2003 to live in a solar-powered, wood-heated cabin. This was their land; they expected that the local government would protect their right to it. So, Miller was quick to call the sheriff's department on the morning of Good Friday, 2004, when Rzeczycki tried to block a jeep traveling on a closed trail adjacent to the property. The vehicle kept moving, pinning Rzeczycki under its 40-inch tire; the sheriff's deputy found him lying in the dirt, nursing a torn ligament and a damaged meniscus. He promptly threatened to write a ticket for disorderly conduct—to Rzeczycki, for "getting in the way of the jeeps." As the deputy drove away, Miller noticed that his car bore one of the ubiquitous urinating-Calvin stickers, the insult in this case directed at the logo of the conservation group Southern Utah Wilderness Alliance (suwa).

As Miller and Rzeczycki would soon learn, they had walked into an epic national land-use debate, with conservationists and property owners pitted against state and county officials, deregulation advocates in Washington, and a slew of industry lawyers and lobbyists. At the heart of the dispute is an ancient federal law known as Revised Statute 2477, passed in 1866 to encourage development in the West by granting rights of way over public land. In a sweeping new interpretation embraced by the Bush administration, counties across the West have argued that RS 2477 allows them to claim as "highways" thousands of paths, trails, and wagon tracks, even on private property and inside national parks and wilderness areas. If the counties succeed in establishing their reading of the statute as legal precedent, warns suwa executive director Scott Groene, it could "open the door to motorized use of nearly all of America's public lands."

At stake is not just whether jeepers can drive across public land, or cut new trails in the boulder-studded washes on Miller and Rzeczycki's property. Roads mean access for oil, gas, and timber companies, for uranium prospectors and hard-rock miners and utility lines. Indeed, the outcome of the RS 2477 cases now cycling through the courts could determine the future of wilderness designation in the United States. For where there are roads, Congress has made clear, there can be no wilderness.

If by history, culture, and predilection any one state in the West was destined to start this fight, it was Utah. Isolated, persecuted, and rebellious, the Mormons arrived here in the 1840s to carve out a new nation; when they begrudgingly joined the union 50 years later, Utah's vast "unsettled lands," 42 percent of the state's territory, fell to federal control. But Utahans who had learned to farm amid the rock and raise cattle in the canyons spurned the land-use laws emerging from distant Washington. They paid little heed in 1934, when the Taylor Grazing Act sought to curb overgrazing in the West, or in 1946, when the toothless Grazing Service became the U.S. Bureau of Land Management (blm), also toothless but now charged with overseeing 258 million acres across 11 Western states and Alaska—land that was wild but not officially designated as national forest, park, or wilderness. Some 23 million acres of that blm land are in Utah.

A generation later, in 1976, Congress finally provided the blm (long mocked as the "Bureau of Livestock and Mining") a measure of enforcement power over its vast domain by enacting the Federal Land Policy Management Act. The law called on the agency to limit grazing and motor vehicle use, to hand out mining and drilling leases only after an environmental review, and to examine which of its parcels might be protected as wilderness. Though the act was rife with loopholes, many rural officials and business interests saw the introduction of environmental and other rules as a declaration of war; the ensuing antiregulatory backlash, known as the Sagebrush Rebellion, spread across the West for a decade.

Among the rebels' more obscure concerns was RS 2477. As a concession to local governments, the 1976 blm reform act had grandfathered in rights of way on public land, as long as they were shown to have a proven use at or before the act's passage. The process for identifying those roads and bringing them under state and county jurisdiction was never clarified, though, and for the next 30 years the RS 2477 question hung in the air, unresolved.

Fast-forward to September 1996, when Bill Clinton employed another moldy law, the American Antiquities Act of 1906, to create out of blm lands the Grand Staircase-Escalante National Monument, a 1.9 million-acre protected wilderness showcasing 260 million years of geologic history in the form of vast cliff staircases running across southern Utah toward the rim of the Grand Canyon. Local governments saw it as yet another Washington land grab, and the commissioners of Kane, Garfield, and San Juan counties—whose slot canyons and piñon plateaus comprise some of the most pristine roadless landscapes in America—decided to avenge the injury. Just weeks after the monument was created, in September and October 1996, road crews dispatched by the three counties drove onto blm land, including portions of the Staircase, to turn 16 rugged trails into fully graded dirt roads that they claimed as county property under RS 2477.

The counties' stratagem quickly widened to include private lands as well. On an October day in 1997, a pair of longtime ranchers in Kane County, Ron and Jana Smith, came home from vacation to find their 2,000-acre property near the Staircase monument broken into, the chains on their gates clipped, six Private Property signs torn down, and four RS 2477 claims laid across their land. Kane County officials had made no attempt to give the Smiths prior notice. "They just showed up with bolt cutters," says Jana Smith, 53, who with her husband has owned the ranch since 1976. "Just went ahead and did it."

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