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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 2:00 AM EDT

The Smiths tried to reason with Kane County. They asked for a map of the RS 2477 roads the county had identified on their land, and for proof that the roads were covered by the statute. Their requests were ignored, they say, and the sheriff called to warn them that the fences they'd put back up across the alleged roads would be cut down. Jeepers ran right over the fences in any case, and Ron spent a lot of time chasing off trespassers who had been told by Kane County that the trails were open and legal.

In the end, the Smiths sued the county, forcing officials to identify "highways" that, according to Jana, "began nowhere, went nowhere, ended nowhere, provided access to nothing." In court the couple presented the county attorney with the limited access deed they had received when they purchased the property (and had shown the county years before), which clearly stipulated that the land was immune from RS 2477 claims. Within 30 minutes the county attorney dropped the matter, but it took another year to get the three-man county commission to vote to abandon the claim on the couple's property.

"Kane County cried out that the Staircase was an abuse of power, a land grab, done without due process—the county and citizens weren't allowed to participate," says Jana Smith. "What we found so mind-boggling is that they turned around and did the same thing to us."

San Juan County commissioner Lynn Stevens, a 70-year-old, cool-eyed retired Army general, told me he works 80 hours a week in public service, so finding time for an interview was tricky. We finally met at 10 p.m. at the counter of a Shell station diner in the county seat of Monticello, one of a handful of habitations in the stone expanses of southeastern Utah. I wanted to ask Stevens about the county's RS 2477 claim in nearby Salt Creek Canyon, a stretch of Canyonlands National Park known for its rugged, remote beauty.

Twisting and high-walled, Salt Creek Canyon is the route to a view of Angel Arch, a sandstone formation that soars 150 feet over the canyon. It is an eight-mile hike through a garden of yucca and desert evening primrose, often with no other human in sight, no sound except one's breath, one's feet sinking in the sand. The sand and flowerbeds are really a "highway," according to San Juan County, which sued the National Park Service in the summer of 2004 for closing the canyon to vehicles because of documented damage jeeps have caused to the canyon's ecology.

The creek-bed "road" in Salt Creek Canyon existed long before the establishment of the national park in 1968, Stevens told me. He said local cattlemen and others can testify to having driven up Salt Creek as early as the 1940s, while wagons traveled the creek bed for 100 years before that. "Angel Arch is a place where families had get-togethers," he said, "where grandparents came with children." Overhearing our conversation, a woman mopping the floor of the diner chimed in bitterly: "Not anymore!"

The San Juan County lawsuit is a fight over perhaps the most contentious application of RS 2477—the claim that the statute provides vehicle access to wildlands even in national parks. According to an internal Park Service memo, if the courts agree, at least 17 million acres in 68 national parks and monuments nationwide could be affected, including every hiking path in Zion National Park. Several environmental groups, including suwa, the Wilderness Society, the Grand Canyon Trust, and Earthjustice, are seeking to intervene in the case on behalf of the public interest.

Stevens—whose many positions include an appointment as the Utah governor's coordinator for public lands policy—says the issue is simply one of fairness. The motoring public, the "non-hiking people," should not be deprived of the opportunity to see Angel Arch. "These are cherished, beloved places among the residents of San Juan County," says Stevens. "It's elitist to say if you can't hike, you're not entitled to have that beauty."

Although it is technically the defendant in the Salt Creek case, the Bush administration has looked favorably on San Juan County's efforts. As she was leaving office in March 2006, then-Secretary of the Interior Gale Norton issued a sweeping policy directive specifying that national parks are not exempt from RS 2477. The Department of the Interior has also repeatedly exempted RS 2477 claims from public comment and environmental review, and it has sought to make it easier for counties to claim new roads via a variety of rule changes, at least one of which was illegal, according to a 2004 Government Accountability Office report. Meanwhile, the blm has for years failed to complete the required environmental impact reviews and even basic mapping of trails for off-road vehicles on public lands, and it has also neglected Congress' mandate to inventory blm lands for potential wilderness designation.

That foot-dragging has turned out to be a godsend for RS 2477 advocates: If San Juan County's claims are upheld, for example, suwa estimates that 86 percent of public lands in the county would sit within one mile of a "highway," which would almost certainly render these lands ineligible for wilderness protection, since by statute a wilderness must be roadless and "untrammeled by man."

Congress could, of course, block that endgame. Congressman Mark Udall (D-Colo.) has proposed legislation, the RS 2477 Rights of Way Act, to force counties making highway claims to prove the existence of a road and its continuous usage to the present, though the bill has so far gone nowhere. suwa's own legislation, which would turn about half of Utah's wild blm lands into federally protected wilderness (where, the group points out, people could do almost anything they do on the land now, including fish, hunt, ride horses, and run cattle, but not mine for minerals or drive vehicles) has languished on the Hill for 18 years.

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