Off-Road Rules

Mother Jones ^ | June 30, 2007 | Christopher Ketcham

[Lorianne]

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.

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."

[Issaquahking]

Ping for free access to the back country per RS2477 with respect to those who control the access (leave the gate unlocked, promise to leave it in whatever position I found it in, and take all my trash, plus other BS out on way out, a little respect, goes a long ways).


SUWA, FOAD, better yet, have a nice cup of STFU.

[pyx]

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.

Adjacent \Ad*ja"cent\, a. [L. adjacens, -centis, p. pr. of
adjacere to lie near; ad + jac[=e]re to lie: cf. F. adjacent.]
Lying near, close, or contiguous; neighboring; bordering on;
as, a field adjacent to the highway. "The adjacent forest." --B. Jonson.

They call the sheriff for someone traveling on property they don't own ? This was not their land. Maybe it belongs to the snail darter. LOL !

[george76]

In defiance of the National Park Service, officials with San Juan County, Utah, have opened a dirt road in Canyonlands National Park that had been closed for 2 1/2 years.

"As far as the county is concerned, the road is open," said Paul Henderson, chief of interpretation and visitor services with the Southeast Utah group, which includes Canyonlands, Arches, Hovenweep and Natural Bridges. "As far as the Park Service is concerned, it’s closed."

The San Juan County commissioners see opening the road as another salvo in a battle to preserve multiple uses on public lands and protect rural counties against the power of the federal government.

 

"We don’t think that our road surfaces are subject to the wishes of some unelected environmental faction that wants to control them."

— Bill Redd

http://www.cortezjournal.com/archives/1news984.htm

[kittymyrib]

By law as well as custom, the county sheriff is the ultimate law officer in this country. Hippies buying land in the West should be aware of this.

[webstersII]

bump

[Reverend Bob]

I well remember this story for I own land in the area. These people bought property on an existing right of way and then tried to close it off. Worse, they and their friends ATTACKED a jeep load of people using the trail. Evidence later showed that the only reason someone got their foot run over was because the driver of the jeep was trying to back away from a club-wielding eco-Nazi.

While Jeep Safari is sometimes controversial in Moab, the local off-road clubs do a good job of policing attendees to avoid littering and use of unauthorized trails. This trail, by contrast, has been in use for years.

[george76]

Some hippies may know this and try to violate the law anyway.

Others focus on doing illegal drugs and starting arson fires.

[Londo Molari]

“By law as well as custom, the county sheriff is the ultimate law officer in this country. Hippies buying land in the West should be aware of this.”

What is the difference between this and what happened in CT with eminent domain? If the hippies don’t want vehicles on their property why should they have to let them?

[Freedom4US]

The area in question has some of the finest “off-road” roads around. They were originally mining and jeep roads, and not a little dynamite. But there are hundreds if not thousands of county maintained roads (cryptically marked, bring a very good map) that don’t even require 4-wheel drive, just high clearance. The area was virtually unknown till the 1950s, excepting a few cowboys, indians and ranchers.

One doesn’t move to Moab, Utah and not know about this or the Jeep Safari. There are also lots of skiing, river rafting, bed and breakfasts, hiking trips, and miles of untamed scenery.

[org.whodat]

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."

Say what you will about the rest of the debate, however, this last part is just plain wrong, it is a taking without compensation.

[PAR35]

Say what you will about the rest of the debate, however, this last part is just plain wrong, it is a taking without compensation.

I'd have to hear the full story from an unbiased source, or the other side of the story from someone with an axe to grind on the other side, before I'd jump on the bandwagon with you.

[SpinyNorman]

These eco-Nazi “watermelons” (green on the outside, red on the inside stories remind me of a tale related to me that occurred in my town in western Mass.

An older gentleman was hunting on his property (in his family since the 1800s) adjacent to a plot of land that had been donated to Audubon Society. Some greenie stood on the boundary between the lots and informed the gentleman that he had to stay 200 feet away from the boundary between the lots with his hunting rifle.

The gentleman looked at the greenie and calmly said “I have the gun. Maybe YOU should stay 200 feet back from MY property.”

The greenie didn’t have a lot to say about that.

I am still laughing about that to this day.......

[org.whodat]

http://www.highway-robbery.org/documents/6-21-03_Jana.pdf

I'd have to hear the full story from an unbiased source, or the other side of the story from someone with an axe to grind on the other side, before I'd jump on the bandwagon with you.

Had to look it up, the smith took this to court and were awarded full title to their land. This is really and old story, since the unlawful taking happen back in the 90's. But it would appear that there is major abuse of RS 2477 by the county governments.

[george76]

Salt Lake Tribune

MONTICELLO - A jury convicted a Moab man Thursday of aggravated assault in an altercation last April between off-road enthusiasts and nearby landowners.

Alexander Arbelo testified Thursday that he was acting to protect friend John Rzeczycki and feared for his own safety when he ran toward a Colorado driver while wielding a metal fence pole.

Rzeczycki had approached a group of drivers on the Coyote Ugly trail in northern San Juan County and, according to witnesses from the group, grabbed the front of Nancy Bailey’s vehicle, then moved in front of the Jeep again as she attempted to maneuver around him...

San Juan County Attorney Craig Halls asked jurors to decide who the true aggressor was in the April 9 incident, which he described as “Jeepers accosted by a bunch of people who came running at them from the wash.”

Describing Rzeczycki’s actions as “ludicrous,” Halls said jurors could only accept Arbelo’s defense if they believed that Bailey was “using her Jeep as a weapon.” Bailey was simply trying to maneuver around Rzeczycki and did not intentionally injure him, Halls said.

“You only have the right to use deadly force when you’re protecting yourself from deadly force or your friend from deadly force,” Halls told jurors. “You don’t have the right to run up to someone’s window with a metal bar when it’s something as insignificant as this.”

The four-man, four-woman jury deliberated for about two hours before reaching a verdict Thursday afternoon.

http://www.broncoholics.com/support/topic.asp?TOPIC_ID=1518

[org.whodat]

These people bought property on an existing right of way and then tried to close it off.

Well you must have not been there for some, see

time,http://home.comcast.net/~rs2477/cases.html

The Kiley Miller and John Rzeczycki, won their case and fenced their property.

To tell the truth this whole concept that roads that have been used for years are public right of way is bogus. There is hardly an farm in the country that doesn't have old wagon trails that predated auto's.

[Citizen Tom Paine]

I read this with a lot of interest. Taxes were never once mentioned. As a land owner in New York State, I pay the taxes (school and real estate) every year. I am also liable for any injuries which occur on my land consequently I have to pay for insurance every year.

If you want to use my land, you help to pay the taxes and insurance.

[Issaquahking]

Tom,

If it is a right of way, it is out of your control. I act with due dilligence when exercising RS2477. That means I close gates that I open, pick up all my trash, sometimes trash of others, and be a responsible outdoorsman. Trust me, I most assuredly have a right to use existing roads.

[org.whodat]

Trust me, I most assuredly have a right to use existing roads.

You have a right to use public roads. If it has a gate on it and a no trespass sign you may get ventilated.

[org.whodat]

Search Case Files (Search Tools) Download RS 2477 Fact Sheet Frequently Asked Questions Background RS 2477 stands for Revised Statute 2477 from the Mining Act of 1866, which states:

"The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted."

The act granted a public right-of-way across unreserved federal land to guarantee access as land transferred to state or private ownership. Rights-of-way were created and granted under RS 2477 until its repeal in 1976. In Alaska, federal land was "reserved for public uses" in December 1968, with passage of PLO 4582, also known as the "land freeze." This date ends the window of RS 2477 qualification in Alaska.

What are RS 2477 Rights-of-Way? The RS 2477 congressional offer stood for 110 years. Throughout that time, people created legal rights-of-way by using or constructing routes across unreserved federal land. State or local officials could also accept a right-of-way by spending tax dollars on actual construction on the route, or they could pass a law accepting rights-of-way for future construction. According to state court decisions, any of these methods would be enough to create a legal right-of-way, provided the land was unreserved, unappropriated federal land at the time of construction and use or acceptance. Once a right-of-way was established, it became a "valid existing right" owned by the state. Any homesteads, homesites, Native Allotments, federal parks, etc., created after an RS 2477 right-of-way was accepted would thus be subject to it.

Once established, an RS 2477 cannot be abandoned by non-use, or removed without undergoing a legal easement vacation procedure. As with any other state-owned right-of-way, the federal government could not cancel it, even if the land was later withdrawn or transferred out of federal ownership. RS 2477 rights-of-way provide access to the public and may exist on your property.

The State of Alaska views RS 2477 as an important tool to protect public access across federal land. In the 1980s the State of Alaska and the U.S. Department of the Interior agreed upon and platted several RS 2477 rights-of-way. In the past decade the Department of the Interior has not recognized RS 2477s that cross its land.

The RS 2477 Project Since 1993, the Department of Natural Resources (DNR) has received varying levels of funding to pursue a research and adjudication project for RS 2477 rights-of-way. The project identifies routes throughout the state that appear to qualify as public rights-of-way under RS 2477. In recent years, court cases have determined the legal validity of RS 2477 routes. There have been few court cases in Alaska that established RS 2477 rights-of-way. In the past, the status of most routes was typically uncontested and acknowledged to be legally valid under 43 USC 932 - RS 2477.

To successfully document an RS 2477 right-of-way on a historic route, the route must be shown to have been constructed or used when the land was unreserved federal land.

There is no such thing as an individual exercising RS2477.

[Reverend Bob]

Thanks for the link. The site, alas, is hardly unbiased and contains at least one major factual error in the first paragraph (not to mention numerous typos and no external links that would allow one to check the author's sources). If there's been a more recent court decision in their favor -- and there may well have been -- then this is the first I've heard of it. I'd like to read it in fact, or at least a proper news report of same. (sigh!) Something more to search out later I guess, when I'm less pressed for time.

I was previously following this case in the Moab Times-Independent. I'd check the archives there but they seem to have morphed into a pay site. It's not an old case by any means.

Thanks for the info though! I'd often wondered if there'd been any later developments.

[Utah Girl]

I think a lot of antagonism exists also because the federal government creating the Grandcase Staircase National Monument when Bill Clinton was prez. 1.8 million acres was declared, a huge national monument. From Wikpedia Grand Staircase-Escalante National Monument

The Monument was declared in September, 1996 at the height of the 1996 presidential election campaign by President Bill Clinton, and was controversial from the moment of creation. The declaration ceremony was held at Grand Canyon National Park in Arizona, and not in the state of Utah. The Utah congressional delegation and state governor were notified only 24 hours in advance. This was seen by many as a transparent political ploy to gain votes in the contested state of Arizona. That November, Clinton won Arizona by a margin of 2.2%, and lost Utah to Republican Bob Dole by 21.1%.

Many people in Utah were very upset when Bill Clinton declared the Grand Staircase-Escalante area as a National Monument. The counties where the Monument is located are the most conservative part of a very conservative state, and have a long history of ranching and resource extraction. Local county officials objected long and hard to designation of the Monument, questioning whether the Antiquities Act allowed such vast amounts of land to be designated. Monument designation also nixed the Andalex Coal Mine that was proposed for a remote location on the Kaiparowitz Plateau, and promised to generate jobs for the local economy.^[1]

Wilderness designation for the lands in the Monument had long been sought by environmental groups. While designation of the Monument is not the same as Wilderness designation, for most practical purposes it is very much the same. By declaring the Monument, Bill Clinton improved his standing with environmentalists nationwide.

There are contentious issues peculiar to the state of Utah. Certain plots of land were assigned when Utah became a state (in 1896) as School and Institutional Trust Lands (SITLa, a Utah state agency), to be managed to produce funds for the state school system. These lands included scattered plots in the Monument that, critics claimed, could no longer be developed for the sake of Utah's school children. The SITLa plots within the Monument were exchanged for federal lands elsewhere in Utah, plus equivalent mineral rights and $13 million dollars cash by an act of Congress supported by Democrats and Republicans, and signed into law as Public Law 105-335 on October 31, 1998.^[2]

A more difficult problem is the resolution of Revised Statute 2477 (R.S. 2477) road claims. R.S. 2477 (Section 8 of the 1866 Mining Act) states: "The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted." The statute was repealed by the Federal Land Policy and Management Act (FLPMA) of 1976, but the repeal was subject to valid existing rights. A process for resolving disputed claims has not been established, and in 1996, the 104th Congress passed a law which prohibited Clinton-administration RS2477 proposed resolution regulations from taking effect without Congressional approval.^[3] As of 2005, dirt roads in the Monument are highly disputed, with Kane County officials placing Kane County signs on roads they claim and occasionally applying bulldozers to grade claimed roads, while the BLM tries to exert control over the same roads. Resolution of this dispute is unlikely in the immediate future.

And there was a huge conflict of interest in declaring this area a national monument. The Straw that Broke the Camel’s Back? Grand Staircase-Escalante National Monument Antiquates the Antiquities Act

As if President Clinton’s aspirations to be re-elected did not create a questionable enough motive for creating the largest national monument currently in existence, some critics believe that President Clinton had yet another trick up his sleeve in issuing the 1996 proclamation. The low-sulfur coal located in the Monument would have competed directly with similarly clean-burning coal owned by the Lippo Group in Indonesia.191 The Lippo Group had several longlasting ties with President Clinton, and interestingly had made a major campaign contribution to the Democrats just before the Grand Staircase proclamation.192 Utah Representative Chris Cannon claimed that high-grade coal mines in Indonesia owned by Lippo would have competed fiercely with the Grand Staircase mine held by Andalex, which contained the same high-grade coal.193 In fact, to date there are only three sites in the world known to contain this rare, high quality coal: the Kaiparowits Plateau in Grand Staircase, Indonesia, and Colombia.194 The Colombians, however, are many years away from being able to mine their resources, leaving only Indonesia and Grand Staircase as current sources of this highly desired coal.195 Cannon suspected that President Clinton invoked the Antiquities Act to create the Monument, thereby preventing any domestic competition for his major foreign campaign contributors.196 With this move, President Clinton could seemingly kill two birds with one stone. That is, he could win the votes of environmentalists who would be happy to see the area preserved, and he could continue raising campaign funds from potential mine competitors who wanted Grand Staircase to be designated a national monument in order to secure mining competition in the region.

[org.whodat]

http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument&orgId=1593&topicId=21355&docId=l:635389689

This is the most current info on this, the counties in question and the state of UT lost all rights to the roads they were claiming.

From above link

Jenkins' ruling allows the counties to file an amended complaint within 20 days.

Kane County Commissioner Mark Habbeshaw said Monday he hadn't spoken to his county's attorney nor read the ruling, but expected a return to court either with an amended claim or an appeal.

Revised Statute 2477 is a Civil War-era mining law that allowed counties and cities to construct roads across federal land.

The open-ended language was repealed three decades ago, but existing rights of way were grandfathered in.

Two years ago the 10th U.S. Circuit Court of Appeals ruled state laws dictate how the road claims are to be decided.

In Utah, the law says "existing" roads are those that had 10 years of continuous use and county maintenance before 1976.

Continuous-use claims under quiet title actions now must be decided road by road in federal court.

But to litigate every road claim "would be overwhelmingly expensive to everybody, to us, to the federal court," Habbeshaw said. The county has 1,000 roads and each would cost at least $100,000 to take to court, he added.

Utah already has spent $12 million gathering evidence to help the counties prove their claims. "We don't have one road to show for that," Habbeshaw said.

[Reverend Bob]

Nice post. The division of lands in Utah has always amazed me. It's like a vast checkerboard made up of tiny squares. Even in the middle of one vast blob overwhelmingly reserved for a single owner (say the BLM) one can find squares, totally cut off and surrounded, that are either SITLA or private. No wonder the State, Feds, and private owners are always doing land swaps. It's a mess!

Moab is a prime example even now. There are sections of the Rim and Mill Creek Canyon that are private (and, arguably, shouldn't be), while the Feds still hold some valley flat-land that could be better used for development. My own land was BLM up until a 70s land-swap/sale put it into the hands of a private developer.

And then, of course, there's the matter of mineral rights and mineral leases, which we won't even get into here.....

[philetus]

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.”

Two questions

1.Why did the “42% of the state’s territory” fall to fed control
when Utah became a state? It sounds like the people of Utah got robbed,along with the people of all the states.

It’s like, I buy your house and then take control of everything in it also.

2.Is there any way to rescind the National Monument designation?

[org.whodat]

.Why did the “42% of the state’s territory” fall to fed control

You are the product of public education. The land was the property of the united states before it was a state. So nothing changed.

[george76]

SUWA ( Southern Utah Wilderness Alliance ) again ?

http://www.freerepublic.com/focus/f-news/1544680/posts