I drove a stretch of Hole-in-the-Rock Road between Harris Wash and Egypt, Utah, during midday when I crossed paths with a bulldozer headed in the opposite direction. The dozer moved at a labored pace, the teeth of its blade grooming the roads’ dirt surface. I flagged the driver down and asked if he works for the county or the monument. “The county,” he said, “Garfield County.”
The sight of a bulldozer on a rural road is far from uncommon, but because of where this road is and what’s happened here over the past few years, it carries the unmistakable air of controversy.
Hole-in-the-Rock Road is a 55-mile stretch of unpaved back way off of Highway 12, running along the eastern edge of the Kaiparowits Plateau, cutting through the sagebrush desert to the Straight Cliffs above the Colorado River. The trail was blazed over six grueling months between 1879 and 1880 by Mormon pioneers heading from Escalante to settle in the town of Bluff.
Today, Hole-in-the-Rock runs through the eastern edge of the Grand Staircase'Escalante National Monument, and through both Garfield and Kane counties. It remains a popular drive for hikers headed to any of the numerous trailheads and for those wishing to retrace the steps of the roads’ first travelers over the notches cut in the cliffs above Glen Canyon.
It is also one of dozens of roads at the center of a battle that’s raged for almost three decades. As removed as the Escalante Canyons, the Kaiparowits Plateau and the Grand Staircase are from centers of political power, the paths that cross them have raised strong passions at virtually every level of government.
I asked the bulldozer driver if he was widening the road. “No,” he said, “just grating it.” And with that, he took off, the dozer’s blade pushing up against the edge between the road and the wilderness, and not so gently at that.
“Ready For This Fight”
“We don’t want to lose, and we don’t intend to,” said Kane County Commissioner Mark Habbeshaw, casually rocking back in his chair. “We welcome any legal action against us because we see it as an opportunity for us to be vindicated by the law.?
Habbeshaw is the model of reason. Cool, calm and collected, he is every inch a seasoned lawyer. While occasionally baring a slight gruffness under his professional sheen, he’s far from the overzealous crank or tantrum-throwing roughneck his critics might make him out to be.
That’s not to say his critics are altogether wrong. This past August marked the two-year anniversary of the removal of 31 federal road markers'slim, floppy, Carsonite signs'in the Grand Staircase'Escalante Monument, including markers on Hole-in-the-Rock Road. They were “returned” to the Bureau of Land Management field office in Kanab by Habbeshaw and Kane County Sheriff Lamont Smith. A grand-jury investigation into alleged trespassing and destruction of property by Habbeshaw and Smith followed, but no charges were ever filed.
Then, late last year, Habbeshaw and Smith upped the ante, erecting county markers on many of the same disputed roadways, often side-by-side with the replaced BLM markers. There was a stark difference between the two competing signs: The BLM has banned all-terrain and off-highway vehicles, while the county has explicitly allowed them. This added gas to a smoldering fire, igniting questions about the county’s conduct.
“These unilateral actions taken by Kane County are hugely problematic,” said BLM spokesman Don Banks. “It shows a clear disregard for governmental cooperation and clear disregard for the law.?
In the face of continued defiance, the BLM referred the case to U.S. Attorney Paul Warner’s office. But this new round of legal action has been slow to come. Some wonder why government agencies seem hesitant to litigate. Some wonder if political motivations aren’t at play.
But Kane County officials have no problem being sued. What’s more, they intend on making this an all-out fight. The county has retained the high-profile legal team of Ron Yengich and Shawn Welch, and the more Habbeshaw talks, the clearer it becomes that he relishes the situation.
“It is ludicrous to say that we have acted inappropriately. How can we be charged with trespassing on roads that we have been congressionally granted control over?” he said. “This is strictly a property-rights issue, and according to the letter of the law, right-of-way on such roads is given to local, county governments.?
The congressional guarantee Habbeshaw alludes to is a tiny clause of federal code known as Revised Statute 2477. A provision of the Mining Act of 1866, RS 2477 was conceived as a means of granting local governments jurisdiction over regional transportation networks in order to settle the West. With its mere 26 words, the statute grants broad authority: “And be it further enacted, that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.?
By 1976, RS 2477 was deemed outdated and sorely inadequate in providing for the management of publicly owned lands and transportation systems and was repealed. The Federal Land Policy and Management Act (FLPMA), which provided more direct control of public land and transportation networks by the BLM, replaced it. However, all roadways existing prior to 1976 were grandfathered into FLPMA and were to remain under local control.
But validating legitimate RS 2477 roads is a lengthy, contentious process that involves sifting through mounds of historical evidence, photographic and topographic surveys and weighing sworn affidavits by local residents and people of interest. Equally contentious is the means by which such a process should be administered'and whether such processes are even necessary.
“Within the rule of law there has to be some means by which both sides can present evidence as to the validity of these claims and have them fairly mediated,” Banks said. “How do you make sense of managing public lands without a thoughtful, deliberative process?”
There are two main channels by which county governments may petition their RS 2477 claims. The first route is for the county to file a lawsuit in federal court under the Quiet Title Act, in which a panel of judges examines the evidence presented and determines the validity of the claim.
The second more controversial route is for the county to file a disclaimer of interest, as outlined in the Memorandum of Understanding (MOU) reached between then-Gov. Mike Leavitt and Secretary of the Interior Gale Norton in April 2003. The MOU aims to grant local governments limited control over the disputed roadways, confined by specific circumstances.
Perhaps predictably, as is often the case with backroom deals, the MOU has managed only to enrage those it was intended to appease. “The agreement reached between the state and the DOI [Department of the Interior] is totally inadequate,” Habbeshaw said. “The [MOU] totally fails to recognize the vested right of way that RS 2477 affords us; under the MOU, we have no formal right of way.”
In addition, the county could not widen or improve the roads without further DOI consultation, as they could do unabated under a strict RS 2477 claim, provided increased use of roads demanded such improvements. “It is a seriously flawed agreement that is inefficient and disregards our right to adequately manage our roads.?
County officials feel judicial action can be problematic as well. First of all, it is an expensive endeavor for the county to undertake, and it can take years for litigation to wind its way through the appeals process to some sort of concrete resolution.
But as Habbeshaw puts it, it is also wholly unnecessary. By his reasoning, validating RS 2477 claims isn’t the responsibility of counties but falls on the BLM and the federal government. “These are vested property rights, and therefore, if the BLM would like to challenge the validity of our right of way, they are free to do so, and we would welcome it,” he said. “But to say that we have to bear the burden of proof when we are the ones with the congressional guarantee is absurd.”
For a time, it looked as though the law was working against Habbeshaw. A 2001 ruling by U.S. District Court Judge Tena Campbell rejected any such guarantee, placing the responsibility of validating claims on the counties, not the BLM. According to Judge Campbell, “The Counties, as the parties seeking to enforce rights of way against the federal government, therefore bear the burden of proving that their claimed rights of way are valid under RS 2477.”
However, the 10th Circuit Court of Appeals subsequently struck down core elements of this ruling in 2005, granting the counties more leeway in asserting their claims. Habbeshaw found this to be much more in keeping with the law, including FLPMA’s exact language. He points to three provisions within the act (509a, 701a, and 701h, for those wanting specifics) that expressly forbid the DOI and the BLM from challenging or terminating pre-existing rights of way without ample consideration and cause. “Under FLMPA, which is the guiding document of the BLM, they have to be the ones to show cause in challenging a right of way, not the county,” Habbeshaw said.
“This is why we are so eager to get to court on this issue,” he continued, “to get away from the politics and the special interests. To have the issue looked at explicitly from a legal standpoint.
“And we are ready for this fight. We feel comfortable in defending our right to these roads'we have our affidavits ready, we have aerial photography comparisons dating back 50 years, we have proof of continued use. We would not be so eager to go to court if we had any doubt that we would win,” said Habbeshaw, again rocking back in his chair.
Paths of Debate, Generations of Bad Blood
Validating RS 2477 claims boils down to a deceptively simple question: What is a road? The answer’s a matter of common sense to any outsider. Inside the conflict, no two people can agree on a definition or language satisfying the question. Therein lies the problem with RS 2477 litigation'it hinges entirely on finding and applying technical definitions to broad concepts.
In this respect, recent high-profile court rulings have seen an ebb and flow in this process. Judge Campbell’s ruling in Southern Utah Wilderness Alliance/Sierra Club v. Bureau of Land Management; San Juan, Kane, and Garfield Counties'known in blessed shorthand as the Consolidated Road Suit of 2001'was a landmark; the first case to standardize the language courts might use to measure and validate RS 2477 road claims. But on appeal, Judge Michael McConnell of the U.S. 10th Circuit Court of Appeals found that the District Court’s new standard overstepped the letter of the law.
Prior to the Consolidated Road Suit, judicial precedent had allowed the transportation laws of each individual state to define a road. In Utah, a road, street or highway is denoted as a public way for purposes of travel under continuous use for a period of approximately 10 years. Thus, for a road to have a strong RS 2477 claim under Utah law, it must have been in use since 1966'10 years prior to the statute’s repeal.
Beyond the immense generality of this standard, the State Transportation Code has divided all roadways into four distinct classes'of which Class B and Class D are considered “county” roads. Class B county roads are constructed, read “paved,” and maintained regularly by the County Transit Authority. The Code is very particular as to the specifications of a Class B road, and the jurisdictional interests governing them.
Class D roads on the other hand, are for the most part very unspecific, defined as any land surface route that does not meet the definition of Class A, B or C roads and appear on county-prepared maps before 1976.
If a strict reading of the state transportation code seems inadequate for mediating heated disagreements over RS 2477 roads, that’s because it is. Previous court rulings demonstrate as much. Under the letter of this particular state law, it’s all in the interpretation.
For example, take these two contrasting opinions of the same disputed roads:
According to Habbeshaw, all of the roads the county has exercised its claim over are perfectly legitimate and reasonable examples of what Class D roads are intended to be. “It’s not like we are going out and sticking a sign on every ATV track we can find, and call that a road,” he said.
Heidi McIntosh, conservation director for the Southern Utah Wilderness Alliance, begs to differ: “Many of these so-called ?roads’ are nothing more than two tracks between the sagebrush. To actually define them as roads by any reasonable measure would be unconscionable.?
You can see where this is going. Under the very language of the transportation code, both Habbeshaw and McIntosh are correct'because there’s no way to refute either one. Debating the validity of a road without any clear definition to rest upon can’t produce anything approaching consensus.
Returning to the conflicting rulings in the Consolidated Road Suit, Judge Campbell’s original opinion focused on three phrases'“construction,” “highways” and “not reserved for public use?'to construct a framework for interpreting claims, that Judge McConnell then deemed unviable.
When considering the implications of “construction and “highways,” Judge Campbell sided with the BLM in its assertion that such terms connoted “purposeful building or improving” to create “a road freely open to every one; a public road.” But Judge McConnell, taking a more strict textual approach, said that there was nothing in the wording of the statute that required “mechanical,” “intentional physical labor.” Although he conceded that the practical nature and destination of a road must be considered, the counties’ equivocation of “construction” and “continued use?'whether by vehicles, horse, or pedestrians'was consistent with the original intent of the law.
Of further interest in the case were competing claims from the BLM and the counties, as to whether the roads were “reserved for public use” at the time the counties issued their claim. Judge Campbell sided with the BLM that they were in fact now in the public domain and excluded from RS 2477 claims. The counties countered this by citing the Pickett Act of 1910, which granted a withdrawal of lands from public ownership in the face of mining interests. Since RS 2477 was originally part of the mining act, claims qualified for such a withdrawal. While not explicitly siding with the counties here, Judge McConnell was sufficiently concerned with the BLM’s lack of consistency on such “reservations” to again refute its assertion.
Obviously, the precedent of Judge Campbell’s ruling, had it been upheld, would have created a more concrete means by which to weigh RS 2477 claims, including those in the GSEM. But on appeal, this new standard went too far beyond the broad definitions of the statute in its attempt to solve the legal puzzle at the core of the roads’ controversy.
Perhaps it was foolish to think that any single court ruling could bring a resolution. There are other considerations besides legal ones, and no legal opinion will ease a generation’s worth of bad blood over this issue. Legal solutions are one matter, but it’s impossible to make progress in easing tensions without the context of history.
The Grand Staircase’s Sea Change
For all the disagreements clouding the dispute between Kane County and the BLM, there is a general consensus about how it began. It’s no secret that, for decades, there had been significant interest in mining the Escalante area for coal. However, technological limitations made any such plans economically unfeasible, and it remained a relative nonissue for both mining and environmental interests.
Under President Bill Clinton, Secretary of the Interior Bruce Babbitt instructed the BLM to assess wilderness areas for their advanced conservation potential, a survey of which included the Grand Staircase and surrounding areas. This coincided with advances in mining technology that made large-scale strip mining more profitable and made previously untouched mineral reserves “accessible.” Spurred on by these advances, and the advances of the Clinton administration, the Western Congressional Caucus'then chaired by former Utah Congressman Jim Hansen'revived the idea of mining in Escalante. Through a series of internal reports and memos, serious legislative proposals were discussed, although nothing moved beyond the speculative stages.
Speculation was enough to alarm the Clinton administration and in 1996, it quickly designated the Grand Staircase a national monument. On Sept. 18, Clinton announced the new Escalante monument to the public'with the Grand Canyon in the background.
Prior to the monument’s creation, there were a number of developments concerning the RS 2477 claims process as well. In the early- to mid-1980s, then-BLM state director James Parker issued a memo ordering an inventory of all possible RS 2477 roads in Utah, and to further determine their validity. But the project was never fully completed due to a rider attached to the 1993 BLM Appropriations Act by former Minnesota congressman and renowned conservationist Bruce Vento. His provision essentially barred BLM funds for use in validating RS 2477 claims. With that move, the validation process became the courts’ domain.
It is at this point in the story that matters becomes murky'versions of events begin to conflict, and personal accounts turn bitter. Attempting a definitive version of events would be foolish, but the story runs, more or less, like this: Once the monument boundaries and bureaucracy were finalized, the task turned to creating a monument management plan. The process sought to address the concerns of all parties involved, including the BLM, local county governments and environmental groups such as SUWA and the Sierra Club.
“One element of the management-plan process was to address transportation,” Banks said. “There was extensive work done on transportation issues, we created an ad hoc committee for that specific purpose, and in the end, we generated a plan that satisfied most of the major concerns both sides had.?
As McIntosh remembers it, the process was heated, but in the end, progress was made. “Both sides had to swallow some bitter pills. We accepted some roads we were unsure of'they gave up some claims. In the end, we were able to reach a sort of compromise.?
“When the management plan was finalized in 2000, we had over 550 miles of roads set aside for multiple use [ATV and car use], and an explicit commitment to recognize existing RS 2477 claims upon them being proven valid,” Banks said. “Also, we had a clear plan for a singular system for posting names and mile markers on roadways, which is well within the authority of the BLM under Title 5 [of FLPMA].
“All that was left was for the plan to pass the Governor’s Consistency Review. We were so close to a deal with Kane County.”
One of the unforeseen side effects of the monument’s creation was the sea change it would induce in southern Utah politics. At nearly every level, elected officials were swept out of office in a tidal wave of public outrage over the monument’s creation and the inability of local politicians to stop it. Many Utahns will remember the most high profile of these casualties, longtime Democratic Congressman Bill Orton, who was overwhelmingly defeated by Republican Chris Cannon in the 1996 elections.
As more hard-line opponents of the monument were elected at the local level, the negotiations that netted some success broke down. Once the BLM began to sign roads within the monument, Garfield County commissioners contacted state BLM Director Sally Wisely, demanding the removal of all signs on their side of the county line. Wisely instructed then-Monument Manager Kate Cannon to remove them. Cannon agreed, reluctantly. Meanwhile, Kane County'still under the pre-monument commission led by Joe Judd and Norm Carol'acquiesced to the placing of markers.
Other counties followed suit. Elected in 2002, Habbeshaw, along with a new crop of county commissioners, wasted no time in asking current monument manager Dave Hunsaker to remove monument marker signs on claimed county roads. Unlike Cannon, Hunsaker refused. So in May 2003, Habbeshaw and the Kane County Sheriff’s Office took them down themselves'which brings us back to the beginning.
Asked if his actions over the past two years are a form of protest against the monument, Habbeshaw brushes the question aside. “No, they are two distinct issues,” he said. “While it was an obvious example of the Clinton administration’s desire to arbitrarily designate wilderness areas, and a possible abuse of the Antiquities statute, the issue here is property rights.
“But then again,” he said with a grin, “if the monument had never been created, this battle wouldn’t exist.?
The view from McIntosh’s desk is different. “Because the plan was never finalized, the deluge of current commissioners deep-sixed any existing agreements,” she said. “Now that the Kane County Commissioners Office takes its marching orders from Commissioner Habbeshaw, the possibility of compromise is lost.”
But the story does not end there. Kane County has extended an invitation to Garfield County for a coordinated signing effort on the disputed roads throughout the monument. While no action has been taken on this endeavor yet, the Garfield County Engineer’s Office made clear they have every intention of doing so.
Meanwhile, the issue has become a political football on the national level. Illinois Sen. Dick Durbin has upheld the confirmation of Patricia Lynn Scarlett to the post of deputy secretary of the interior in response to what he sees as the DOI’s reluctance to take harsher action against Kane County. According to Durbin spokesman Joe Shoemaker, it’s a clear reflection of priorities within the Bush administration.
“The DOI has the authority to make this an important issue or not,” he said, “and at the moment, we feel they are actively putting politics before the law. [Sen. Durbin] has asked Secretary Norton to enforce the law, but at this point the basic questions still remain.?
Unless someone told you where the Windmill Road began, you’d probably never find it. A few miles north of Kanab, you turn off of Highway 89 onto Hancock Road, and follow it a few miles to the Ponderosa Grove Campground, just outside of Coral Pink Sand Dunes State Park. Even from there, it would be tricky to spot the place where the road begins. That is, if it weren’t for the BLM signs and roadblocks forbidding motorized travel over a sandy slot through the trees.
Hiking past the signs and along the base of the dunes, the tracks often disappear into the sand, making them hard to follow. Eventually, and with a little luck, you wind your way through a patchy meadow of juniper and pine and arrive at an irrigation pump. The well was dug by local ranchers, including current Garfield County Commissioner Clair Ramsey and has been used off and on for the past five decades.
Those days are gone. The Windmill “road,” on its way to the well, also runs through a grove of exceedingly rare aspen trees and Welsh’s milkweed, prompting the BLM to designate it a wilderness study area, and thus closed to any destructive forms of travel.
Despite this, Kane County attempted to open the road to rancher traffic earlier this year'including removing the roadblocks and signs, just as they did on roads in the Grand Staircase-Escalante National Monument. The BLM has, at least for now, prevailed in the matter. Without the rancher’s traffic, the tire ruts will fade back into the pine needles and sand.
The ATV McGuffin
Meeting with Habbeshaw this July, he handed me a copy of a proposed ordinance that would be discussed at a commissioner’s meeting that afternoon. The ordinance, if adopted, would further assert Kane County’s right to regulate and permit all off-road vehicle use on the county road system, including RS 2477 roads. “This might be of interest,” Habbeshaw said. Although just a piece of paper, it carried more weight than its fiber and ink.
Sure enough, after the ordinance was adopted in August, SUWA filed suit against Kane County Oct. 13, alleging that in adopting the ordinance the county violated a slew of federal laws, not the least of which was the Supremacy Clause of the Constitution. Just another day in the Utah roads and wilderness wars.
It’s almost impossible to separate the dispute between Kane County and the BLM from the related controversy over access of off-highway vehicles, familiarly known as ATVs. In the context of this particular controversy though, ATVs are a bit of a McGuffin'Hitchcock’s terminology for a story element everyone focuses on to the distraction of the developing plot.
Even with ATV access completely removed from the debate, the dispute’s root problems would still exist. This is, after all, a war of competing core interests between those who promote greater conservation and those who demand unfettered access. But ATVs often take center stage in the debate because of two distinct features: They are terrible for the environment, but great for local economies.
Just how much of an economic boon has the increase in ATV use been for southern Utah communities over the past decade? One in six adult Utahans owns an ATV. According to Mike Swenson of the Utah Shared Access Alliance, it ushers millions of dollars into county economies every year. It’s widely estimated that ATV recreation brings in far more money to the area than any other form of recreation.
“There is no question that ATVs are big bucks,” said Swenson. “And that is a much bigger deal in rural Utah, where tax bases are limited because so much of the usable land is tied up in public lands.?
But the boon is coupled with a tremendous downside, one that may have far more lasting consequences. According to SUWA, extensive ATV tourism is not a responsible and sustainable means of generating revenues and must be curtailed to prevent massive ecological erosion.
“The scenic beauty, not to mention the archeological and ecological importance, of the Grand Staircase cannot be overstated,” said McIntosh. “ATVs cause large-scale soil erosion, start fires, endanger wildlife and vegetation. Not to mention the pollution of all kinds they produce'noise, air, water.” The list goes on.
Quick to rise to his defense, Habbeshaw said Kane County will gladly close roads if there are significant environmental and safety issues regarding ATV use on a particular roadway'but he insists that decision is the county’s alone. “If there are resource issues at stake, we will consider restricting access to the roads,” Habbeshaw said. “We agree that the amount of vehicle traffic is getting to be too much, but if we take steps to control it, it will not be the problem many predict it will be. And keep in mind, the monument is huge, and if the BLM closes these roads, then we are losing control over more than half of the county.”
Such promises to exercise restraint and control over ATV use are not satisfactory to SUWA. “If it was possible to control ATV use'to keep them confined to certain trails'then they would not be an issue,” McIntosh said. “The problem with that is you cannot control them. Whereever ATV access is allowed, new trails naturally spider web out, and that is where the real threat comes from.”
But proponents of open access stress there’s more at stake here than money. “The almighty dollar is not the bottom line here,” Swenson said. “What also concerns us is that the BLM is infringing on the rights of people in the area to access the land they grew up on, that their parents and grandparents grew up on. At the heart of the issue are the rights of a free people.?
Emotional appeals may seem suspect, but there’s little reason to think that the passions of Swenson and others aren’t genuine. And while Banks is sympathetic to such sentiment, he adamantly reasserts the BLM’s need to manage the land along certain priorities: “Many needs must be balanced, and not every one will come away happy. We will work to keep as much access available as we can, but in many cases, it must be limited, or outright closed.?
Whatever chance for compromise existed seems to have been lost before this saga began. The divisions have become too deep. An escalating cycle of actions has only entrenched presumptions that first set those cycles into motion. In the end, both sides seem destined to traveling down ruts of the same old path, all the while arguing whether or not that path is a road.