Capitol Reef Administrative History

CHAPTER 16:
ROADS, TRAILS, AND UTILITY RIGHTS-OF-WAY (continued)

The History Of The Boulder-Bullfrog Road

The 66-mile-long Boulder-to-Bullfrog Road that crosses the southern part of Capitol Reef National Park has developed into one of the most controversial roads issues in recent history. Because of the spectacular switchbacks named for rancher John A. Burr, the entire road is commonly called the Burr Trail. This road has had more of an impact on the contemporary management of Capitol Reef National Park than any other, with the possible exception of Utah Highway 24.

The following summary history of the Boulder-to-Bullfrog Road was taken from the author's "Boulder-Bullfrog Road: Comparison of Sections Before and After 1942," which was later abbreviated and included in the 1993 "Environmental Assessment for Road Improvement Alternatives, Boulder-to-Bullfrog (Burr Trail)" (see Fig. 46). [110]

Section 1 - Boulder To Capitol Reef National Park: 1880-1942

Until 1942, the main reason anyone ever went east from Boulder to the Circle Cliffs was to trail livestock. Given the lack of motorized transportation in eastern Garfield County, it is easy to understand why there was no road on the stretch from Boulder to what is now Capitol Reef National Park until after World War II.

According to Garfield County ranchers, a well-used cattle trail went east- southeast from Boulder across Deer Creek, into The Gulch, and then through Long Canyon and onto the flats at the base of the Circle Cliffs. This trail probably looked similar to other cattle trails in the area, varying in width according to the terrain. If the livestock were being driven over the more wide open benches of pinyon and juniper vegetation, the trail could have been over 50 yards wide in places. When the trail descended steep sandstone ledges toward canyons, such as Deer Creek and The Gulch, the animals would line up and move single file. [111]

Unfortunately, it is impossible to document exactly where the cattle trails lay in relation to modern roads. Places where some of the trails descended into canyons are still visible today. But in more vegetated areas and in flood-cleansed wash bottoms, there is little to follow. Therefore, it is unclear if the road from Boulder to Long Canyon follows the exact alignment of a traditional cow trail.

It is known, however, that the Boulder to Long Canyon route was not the preferred livestock driveway by the early 1930s. Instead, the route agreed upon by cattle ranchers "follow[ed] the road through Boulder thence down through Draw east of Durfey Bench to Deer Creek, Cross Steep Creek Bench to Steep Creek, down [S]teep Creek to the Gulch and on to Egg Box Canyon." [112] This route was improved in 1935-36 by the new Grazing Services and Emergency Relief Administration, in cooperation with affected ranchers. Wagons of supplies and tools could get up The Gulch and out Egg Box Canyon to the improved Brinkerhoff Spring and other water holes at the northern end of the Circle Cliffs by this route. [113]

In either 1935 or 1937, a crude wagon road was blazed up Long Canyon's wash bed and out into the Circle Cliffs basin as far as Horse Canyon. Wagons and horse or mule teams pulling dirt scrapers were used to make the boulder-strewn wash bed accessible by wagon. It is unclear what the road looked like between Long and Horse Canyons, but the switchbacks on the 1953 United States Geological Survey (USGS) topographic quad map and the current alignment are definitely different. [114]

Significantly, no county road east of Boulder is in evidence on the official Garfield County road map of 1938. Thus, the wagon road east from Boulder through Long Canyon must have been extremely rough and seldom used. [115]

By 1942, the section of the Boulder-Bullfrog Road east from Boulder to Capitol Reef National Park included a wagon road, in approximately the same alignment as today, southeast from Boulder across Steep Creek Bench. Here, one either descended Steep Creek or went south into The Gulch at its junction with Long Canyon. Once in the canyon bottom, a crude wagon road followed the canyon wash bed up to the head of Long Canyon and descended to Horse Canyon, where the road stopped. This road, like the trails before, was still used primarily for moving livestock. There is no evidence of anything but livestock trails across the Circle Cliffs basin along today's park boundary.

Nor is it clear if any livestock trail followed close to the Boulder-Bullfrog Road's present alignment. What is clear is that the route through Long Canyon was only one of many into the Circle Cliffs. [116]

Section 1: Post-1942

After World War II, BLM range improvements and the uranium mining boom caused additional work on this section of the Boulder-Bullfrog Road. Improvements were made to the wagon and, later, jeep road in 1947 and 1950. Yet, the road continued in the bottom of Long Canyon.

The 1951 Garfield County road map is, unfortunately, not very detailed, but it does indicate that the road out of Long Canyon had not yet progressed much past Horse Canyon by the end of 1950. The road appears to be in roughly the same alignment as it travels southeast from Boulder, across Deer Creek, and up onto Steep Creek Bench. An additional switchback into The Gulch is indicated on the 1951 map, that is not shown on the 1964 U.S. Geological Survey (USGS) quad. On the 1951 Garfield County map, no drainage is indicated as Long Canyon. Nevertheless, the 1951 map and a 1953 USGS quad map both show a road following the same general direction out of Long Canyon, crossing Horse Canyon, branching, and then ending. Evidently, as of 1951 there was still no connection with either the Silver Falls-Lampstand Road, which runs north/south through the heart of the Circle Cliffs, or with the Burr Trail to the east. [117]

The 1953 USGS topographic maps of the area compiled from aerial photos taken a year earlier show a four-wheel drive road all the way from Boulder, through Long Canyon and across the Circle Cliffs to the present western park boundary. This road would be used throughout the 1950s by stockmen driving cattle, by hundreds of uranium miners and their ore trucks, and by a few tourists, too.

Further improvements and realignments of the road were made from 1961-72. These included a new dugway down into The Gulch, partial realignment of the road through Long Canyon and into the Circle Cliffs, and a new cut-off near the Lampstand Road. [118]

The road remained essentially unchanged from 1976 to 1988, except for minor improvements and maintenance. From 1988-91, major development of the road included improving the stretch into The Gulch, and general widening, realigning, and chip sealing of the 26 miles between Boulder and Capitol Reef's western boundary. A new bridge was built over Horse Canyon, but the wash crossings over Deer Creek and The Gulch were only slightly improved.

By 1995, the section of the Boulder-Bullfrog Road from Boulder to Capitol Reef was quite different from the rough wagon road of 50 years earlier. The significant changes in alignment are documented above. It is the traveler's experience, however, that has really changed. The winding, narrow dirt road that took the adventurous traveler through the incomparable beauty and isolation of the Circle Cliffs region has become a smooth, curving highway accessible by any type of vehicle.

Section 2 - Western Capitol Reef Boundary To Eggnog Junction: 1880-1942

The steep, 600-foot slickrock and scree slope on which the Burr Trail road is located is the only relatively easy crossing over the entire southern Waterpocket Fold. The route was probably used initially by American Indians, but was later improved by sheep and horse ranchers to allow their livestock to move between summer and winter ranges. The narrow, precarious livestock trail probably began in the Burr Canyon wash bottom to the east of the slope and then started up the north side before beginning to switchback across the slope to the rim above. [119]

Once at the top, herds were driven in many directions within the Circle Cliffs. Sheep were driven to the north, up around the Lampstand and Corner Flats. Though documentation is absent, this livestock trail probably went through the Studhorse Peaks, just as the modern road does. This is the most likely route because the cliffline to the north and east of the Studhorse Peaks would have prevented travel in those directions. Any other route would have meant a lengthy detour to the south and west before looping back around toward the Lampstand. [120]

Less than a mile from the bottom of the switchbacks, the trail along the wash bottom would have intersected with the Notom supply road coming from Capitol Gorge and down the eastern side of the Waterpocket Fold. [121] This supply road was used by wagons since the 1880s to bring food, water, and other necessities to those tending livestock in the Circle Cliffs and Henry Mountains. Supplies were left in large, wooden storage boxes located near The Post, about two miles south of the Burr Canyon Wash-Notom Road Junction. Herders in the Circle Cliffs would go down the Burr Trail switchbacks to The Post, load up their pack mules with supplies, visit with others there for the same purpose, and then head back up the trail. [122]

The Notom Road continued past The Post, cut between two ridges to the east (passing the modern Capitol Reef boundary in one mile), and then went south-southeast for another seven miles to the present Eggnog Junction. From there, the old wagon supply road headed east and up unto the base of Mt. Hillers in the Henry Mountains.

This section of the Boulder-Bullfrog Road did not change much from 1880 to 1942. There is no recorded evidence of road or trail improvements along this stretch during that time. The physical description of the road is substantiated by two maps. The topographic map of the Henry Mountains region surveyed between 1935 and 1939 clearly shows the Notom supply road -- almost identical to its present alignment -- as a double-dashed line going south past The Post and continuing on past today's Eggnog Junction. The Burr Trail is clearly labeled and marked as a switchback trail ending at the top of the Fold. There are no indications of trails continuing to the west from the top of those switchbacks. [123]

The September 1939 map of Henry Mountain and Boulder Unit, Utah Grazing District No. 5 also represents the Notom Road with a double-dashed line road south from Notom. The Burr Trail is also labeled and represented by a straight, double-dashed line due west for about one mile before stopping. This map does not indicate switchbacks on the Burr Trail or the part of the road heading off toward Eggnog Junction. [124]

From 1880 to 1942, the physical characteristics and use of the Burr Trail switchbacks and section of the Notom road from Burr Canyon past The Post to Eggnog Junction did not change. There are two likely reasons why a wagon road was not cut up the Burr Trail. First, the slope was too steep to cut a road into with the roadbuilding technology available at the time. Second, a wagon road was already available through the rough, seldom-used, Halls Crossing route through the southern end of Muley Twist Canyon. [125]

Section 2: 1942 To Present

The most significant alteration to the Burr Trail occurred in 1948 when the Atomic Energy Commission brought in a caterpillar tractor to cut a crude road up the Burr Trail switchbacks, improving access to uranium claims within the Circle Cliffs. [126] It is still unclear whether this new "road" followed the old livestock trail up the switchbacks or how far west of the switchbacks this road continued when it reached the top. It is most likely that at this time the route was diverted from the Burr Canyon wash bed onto the southern bench.

At the base of the steep slope, it appears the tractor began at the north side (exactly where the trail began) and then cut immediately back to the south to create the first switchback. A small section of what maybe the old trail is still visible, climbing some yellow tinted sandstone on the north side between this first and second switchback. If so, it is the only visible remains of the old trail.

Once on top, the 1948 road most likely followed the Muley Twist wash bottom just as the present road does, since there is no physical evidence of any other road. The original route after the road leaves Muley Twist Wash is undetermined. According to the 1953 Wagon Box Mesa topographic map, the route (still marked as a single dashed line signifying a simple pack trail) follows a side wash coming in from the west. But close examination of this presumed route shows no clear evidence of any roads except ones leading south to the Rainy Day mines. Since this road would have been used extensively by miners and ore trucks by 1952 (when the aerial photos for the USGS map were taken), and since there is no evidence of major road improvements until the 1960s, the road should still be visible where it followed and crossed this drainage. Therefore, either the map is wrong or the road was not built west of the Burr Trail until after 1952. [127]

From the west end of the state section (T34S R8E S16) for the last two miles to the western Capitol Reef boundary, the road appears in the same alignment on the 1953 and 1964 USGS maps. During that time, cartographers upgraded the road symbol from double-dashed lines to continuous double lines representing a graded dirt road. Today, travelers may notice a wide corridor cleared of trees or large shrubs along both sides of the road. This was probably created in 1967 when the Burr Trail switchbacks and other sections of the Boulder-Bullfrog Road were widened and improved. [128]

The Burr Trail road was extensively used by uranium miners and their ore trucks throughout the 1950s and into the 1960s. Even though the road must have been rough, most likely requiring four-wheel drive, miners would have used the Burr Trail to get to their claims because it was quicker and easier access than coming in from the west through Long or Silver Falls Canyons. Loaded ore trucks would descend the Burr Trail, bound for the refinery at Moab. Families of the miners used the Burr Trail to visit relatives at the mines, often staying at barracks provided by the uranium mine company. A few tourists also used the Burr Trail to take pictures or view the petrified wood deposits within the Circle Cliffs. The new, primitive road that followed the old Burr Trail livestock driveway was now more heavily used, and used for more purposes, than ever before. [129]

In 1967, as mentioned above, the Burr Trail switchbacks and access roads were widened and improved. This was done as part of the same project that constructed the new road from Eggnog Junction to Bullfrog, and the paved highway from Hanksville to the future site of Bullfrog Marina on Lake Powell. According to Project Engineer Ted Christensen, the curves and sides of the switchbacks were widened and renovated to minimize the slumping that occurred during wet weather. Yet, Christensen also learned that too much widening would also cause the road to slump, because the clay soil base made a poor road bed. [130]

These projects were funded by the federal Economic Development Administration. Under a cooperative agreement with the Utah State Highway Commission, Garfield Country was to assume all maintenance responsibilities for the completed road. [131] These later improvements made little change to the road's alignment through the present park boundaries. However, Capitol Reef National Monument would not be expanded to include the Burr Trail for another year and a half. [132]

Sections 3 And 4 - Eggnog Junction To Utah State Highway 276: 1880-1942

There is no evidence of any historic trail or road in the vicinity of this section of the road. The dry benches and impassable, cliff-lined canyons draining into the Colorado River forced early livestock and supply trails to veer east, close to the base of Mt. Hillers.

Sections 3 And 4 - 1942 To The Present

This section of the Boulder-Bullfrog Road was built over previously roadless land in 1967, under a grant from the federal Economic Development Administration. It was part of the larger project to bring roads into the newly developed Bullfrog Marina on Lake Powell. The road was a totally new alignment, except where it crossed an occasional old range improvement and oil drilling road (built in the late 1940s or early 1950s). A large fill bank was constructed to enable the road to descend off the steep-walled Middle Point, and switchbacks were cut down into Bullfrog Canyon wash. From there, the road went then east to a junction with Utah 276. The road now passes through Glen Canyon National Recreation Area. On either side of the recreation area, the road has been extensively widened and either paved or chip-sealed. [133] Except for the rough, dirt portion of the road in Glen Canyon National Recreation Area, this section of the Boulder-Bullfrog feels and looks like the modern road it is.

The new Boulder-Bullfrog Road is a recent phenomenon compiled from a myriad of roads and trails that have criss-crossed the rugged Waterpocket Fold country since the 1880s. Rugged terrain and minimum use by ranchers and miners had left the area free from improved roads well into the 1960s. Then, the hurried designation of large National Park Service areas at Capitol Reef and Glen Canyon National Recreation Area, coupled with the popularity of the Circle Cliffs and Escalante wilderness areas, led to a new focus toward tourism and recreational development. To capitalize on this popularity and stimulate economic development, Garfield County desired to pave the entire Boulder-Bullfrog Road.

On Aug. 16, 1968, state and county officials gathered to dedicate the newly constructed Utah 276 from Hanksville to Bullfrog and its Boulder-Bullfrog connection. The purpose of these new roads through the region is exemplified in the opening remarks of the master of ceremonies, Weston E. Hamilton:

We want to welcome you to the dedication of what we think is one of the most important road programs in the State of Utah. This is the type of program that we enjoy and appreciate. It does two things. It opens up an area for a better economic program and living for people who live in this area, but it also opens up a new part of our state that has been locked in for residents of the State of Utah and the country. [134]

Such occasions as the dedication of a new road -- or national park -- can stimulate the optimistic nature of boosters who promote tourist development. Yet, not even the most pessimistic person at that 1968 ceremony could have anticipated the convoluted path the Boulder-Bullfrog Road was about to blaze through the courts, congress, and the media.

The Modern Burr Trail Controversy

Over the past few decades, many local, state, and federal officials have expressed the desire to open up the isolated wilderness areas of the Waterpocket Fold country to multiple-use management. Countering these demands have been persistent, assertive conservation groups determined to keep the roads primitive and the backcountry isolated. These pressures have increased substantially since the rapid expansion of National Park Service areas in southern Utah, the enormous rise in visitation to Lake Powell, and the growing tendency by both sides to confront rather than compromise.

The Boulder-Bullfrog Road has been the subject of a constant stream of suits, counter-suits, federal court and Interior Board of Land Appeals decisions, and congressional investigations and appropriation bills. While the majority of the attention has focused on the BLM section from Boulder to the western park boundary, uncertainty over the resolution of the disagreement has kept the National Park Service in a state of planning limbo.

Rather than detailing the tangle of court decisions and political posturing during the recent history of the Boulder-Bullfrog Road, this next segment summarizes the story with an emphasis on the National Park Service position throughout the dispute. [135]

Burr Trail Controversy: 1969-1991

During the late 1960s, the ambitious plans of the Utah State Department of Highways to build an elaborate network of paved roads throughout the Colorado Plateau were not enthusiastically received by the National Park Service. Concerned that new or upgraded roads would harm resources and overburden agency facilities and personnel, the National Park Service took the position that only modest road improvements should be encouraged in the new national parks and recreation areas of southern Utah. The differences between the state and National Park Service positions are easily seen in the summary proposals found in the various transportation studies and environmental assessments from the early 1970s to the 1990s. [136]

Conservation groups were even more adamantly opposed to the state's road plans. In fact, some joined the National Park Service in offering to accept the paving of the entire Boulder-to-Bullfrog Road as an alternative to building an entirely new highway (the previously mentioned Lake Powell Parkway) across the southern end of the Waterpocket Fold from Glen Canyon City to Bullfrog Marina. [137]

Once it was obvious that Congress would not fund the more ambitious road plans, state and county officials decided to improve already existing roads. In the Waterpocket Fold country, these included Utah 12 over Boulder Mountain and the Garfield County road from Boulder to Bullfrog Basin. Paving the Boulder-to-Bullfrog Road had always been the intent of the county and state planners, but initial funding had proven inadequate. [138]

Even the National Park Service was resigned to seeing some kind of improvement to the Burr Trail through Capitol Reef. The 1979 Task Directive for a new general management plan called for development of alternatives for road development and improvements within the park, planned in coordination with state, county, and other federal agencies. [139] Likewise, the 1982 Capitol Reef general management plan detailed development plans for a ranger/contact station, personnel housing area, visitor campground, and a new road to Strike Valley Overlook, all on the assumption that the Boulder-Bullfrog Road would be improved and would attract more visitors to the area. [140]

In early 1983, probably at the request of Garfield County officials, Utah Senators Jake Garn and Orrin Hatch proposed a $600,000 feasibility study for paving the road and creating a 69-mile-long "Burr Trail Highway." [141] Predictably, local environmental organizations responded with outrage, setting the stage for the conflicts that followed.

According to then-Chief Ranger Richard Newgren, the National Park Service took no initial position on the Burr Trail improvement. However, in a Salt Lake Tribune report, Newgren stated, "We're expecting that eventually the roads in the south end of the park will be improved and we're making plans to accommodate it." [142]

This reluctant acceptance of a Boulder-Bullfrog Road upgrade would eventually enable National Park Service officials to approach Garfield County with a minimum-improvement compromise. Yet, throughout most of the 1980s, bitter confrontations between those favoring and those opposing Burr Trail improvements made it virtually impossible for a National Park Service-sponsored compromise to succeed.

By 1984, the proponents of paving the Boulder-Bullfrog Road had refined their position with an engineering study completed by the St. George, Utah, firm of Creamer and Noble. [143] In an accompanying letter, signed by retiring Democratic Governor Scott Matheson and the five Republican members of the Utah congressional delegation, the paving of the Boulder-Bullfrog Road was promoted as an "essentially non-commercial scenic road that emphasized numerous scenic overlooks into southern Utah's spectacular Canyon Country." The letter added, "Construction of the scenic road and ferry boat system [across Lake Powell] will open southern Utah to maximize the potential for an optimum scenic tourist experience." [144]

The Creamer and Noble report was a detailed examination of various alternatives for paving the Burr Trail. The most dramatic called for elimination of the switchbacks, which would be replaced by an enormous, sloped embankment down the Waterpocket Fold. The artist's rendering of this alternative must have only hardened the conservation community's determination to fight. [145]

The $21 million alternative actually recommended by Creamer and Noble was much less destructive. Later to become the foundation of future Garfield County proposals, this plan called for paving the entire road along most of its existing alignment. Dramatic changes would be made only where the road crossed or followed wash beds, or traversed steep switchbacks such as those on the Burr Trail. As was to be expected, project opponents, led by the Sierra Club and National Parks and Conservation Association (NPCA), criticized not only the plan, but the report itself. NPCA Rocky Mountain Region Coordinator Terri Martin called the $75,000 Creamer and Noble study "a slick advertising job which glosses over the economic and environmental imprudence of paving the Burr Trail." It was, she declared, "designed to sell the paving project, not to study it." [146]

One of the arguments environmental groups used in opposing the Boulder-Bullfrog Road upgrade was that tourist travel would be diverted from Capitol Reef's headquarters area in Wayne County. The Wayne County Chamber of Commerce also expressed concern that the tourism business would be diverted south. But in the end, Wayne County residents favored paving the entire road, in hopes of obtaining a few road improvements of their own. [147]

Throughout 1985, the battle lines became entrenched. The Utah State Legislature approved a $600,000 initial appropriation to get road work underway, provided it was matched by federal highway funds. But the environmentalist leanings of Rep. Bruce F. Vento (D-Minnesota), chairman of the House Interior Subcommittee on National Parks, and Sidney Yates (D-Illinois), chairman of the House Interior Subcommittee on Appropriations, made approval of federal matching funds unlikely. Despite public hearings in southern Utah that resoundingly favored paving the entire road, and despite the strong efforts of the Utah congressional delegation, environmental lobbyists successfully delayed any funding from Congress.

While this issue has commonly been regarded as an environmental/development dispute, it certainly did not help the developers' cause that the Utah delegation was Republican in a Democrat-controlled Congress. [148]

Congress did, however, attach wording to the FY 1985 Interior Appropriations Bill requiring the National Park Service and Bureau of Land Management to complete an environmental assessment of the proposed changes to the Boulder-Bullfrog Road. [149] After investigations and initial public hearings, an initial assessment was released in May 1985. This assessment listed four alternatives:

1. paving the entire length of the Boulder-Bullfrog Road;

2. improving the road with gravel instead of pavement;

3. limiting improvements to make it passable to two-wheel drive vehicles except in the worst conditions; and

4. a no-action alternative, which would leave the road as it was. [150]

But with so much national attention being directed toward the Burr Trail controversy, National Park Service Director William Penn Mott decided to postpone official release of the environmental assessment's evaluation to Congress until he personally visited the area. [151]

Once Mott's personal inspection and consultations were completed, the director announced a compromise intended to help satisfy both sides and improve the National Park Service's stature in the area. His solution was to pave the most dangerous switchbacks, realign a section along the eastern boundary of Capitol Reef, and pave wash crossings. Mott also would put a new bridge across Bullfrog Creek within Glen Canyon National Recreation Area, gravel the rest of the road so it would become all-weather passable, and construct an interpretive center in Boulder. Finally, he proposed that the entire 66-mile road be declared a national "rural scenic road" to be administered by the National Park Service. [152]

Both sides of the dispute, at least initially, were cautiously receptive to Mott's proposal. While the paving proponents were disappointed, they saw the National Park Service plan as a constructive alternative. The National Parks and Conservation Association (NPCA) was willing to approve the plan so long as paving and realignment were kept to an absolute minimum. [153]

At first it seemed that the compromise would succeed. Congress passed P.L. 95-290,which appropriated $8.1 million for a "Burr Trail National Scenic Road" but failed to include authorization language. The Utah delegation countered this move by passing a continuing resolution allowing the money to be carried over into the following year. Urged by environmental lobbyists, Rep. Yates made sure that there was no wording in this resolution that would enable the money to be spent without further congressional approval. In other words, the $8.1 million could not be authorized until full House and Senate hearings and debate occurred. Since it would be virtually impossible to gain approval from the environmentally friendly, Democrat-controlled House committees, the $8.1 million, and thus Mott's compromise proposal, were doomed. [154]

Throughout 1986, Garfield County continued its attempts to get road improvement funding from both Congress and the Utah State Legislature. While supporters were initially hopeful, they soon realized that the initial Creamer and Noble plans would have to be scaled back in response to political and fiscal reality. Meanwhile, the National Park Service continued to support Director Mott's minimum improvement alternative. [155]

By early 1987, Garfield County determined that it could not longer wait for the long-promised funding. It decided to use $2 million of Community Impact Board funds to pave the first 28 miles from Boulder to the western boundary of Capitol Reef National Park. A formal construction bid was accepted, but before construction could begin, environmental groups led by NPCA, Sierra Club, and Southern Utah Wilderness Alliance filed suit in federal court to stop any improvements to the Boulder-Bullfrog Road. [156]

After two years of court battles in district and appellate courts and in the Interior Board of Land Appeals, Garfield County gained an adjudicated right-of-way, essentially winning the right to improve the Boulder-Bullfrog Road. The county soon initiated its plans to upgrade, realign in places, and put a double chipseal coating on two sections of the Boulder Bullfrog Road. By spring of 1991, the road was paved from Boulder to the western park boundary and from Eggnog Junction south to the boundary of Glen Canyon National Recreation Area.

State Section 16

Throughout the complex trial and appeals process, the National Park Service remained passively hopeful that a compromise could be worked out to allow for minimal improvements. Then, in December 1987, a land swap between the State of Utah and Garfield County gave the county title to T34S R8E S16, a state school trust section initially set aside for the state to help fund public schools. This particular section included the Burr Trail switchbacks. [157]

The deal, according to Garfield County Commissioner Tom Hatch, was conceived in mid-1987 as leverage in the effort to release the long-promised money from Congress. At first, he considered the land-swap possibility "almost as a joke." "Then," he said, "we began to take a serious look at our 'joke' and give it a try." [158] To the National Park Service and conservationists, this land-swap was no joke. In August 1987, Acting Regional Director Homer L. Rouse formally protested the initial application by Garfield County to assume control over the state section within Capitol Reef National Park. Utah Governor Norman H. Bangerter responded that he appreciated the National Park Service's concern that the county may adversely develop the land. However, the governor maintained that the state's responsibility was to obtain revenues from the state sections, no matter what the "opportunity costs" may be. [159]

The NPCA took immediate formal action to prevent the state section transfer by successfully filing a "petition for review" with the Utah State Supreme Court. NPCA argued that, regardless of the state's desire for school section revenue, there must be "consideration to federal and state law assuring the protection of the unique treasures protected in our national parks." [160]

During 1993, with the Utah Supreme Court injunction still in place, negotiations were undertaken by the National Park Service to transfer Section 16 to federal ownership. After negotiations between Superintendent Charles V. Lundy, NPS Utah Coordinator Martin Ott, and representatives from the state, Garfield County, and NPCA, the following scenario was tentatively approved:

1. Garfield Country would willingly sell or transfer Section 16 to the National Park Service.

2. In return, NPCA would withdraw its objections in the Utah Supreme Court.

3. This sale or transfer would not serve as a precedent for the statewide transfer of school sections within National Park Service lands then under negotiations. [161]

As of the beginning of 1998, the status of Section 16 has not been resolved. It is likely that a resolution to this issue will not be possible until an agreement is reached to transfer the rest of the school sections throughout Utah's National Park Service lands, and the Burr Trail dispute is resolved. Meanwhile, the Utah State Supreme Court injunction is still in effect, thus preventing unilateral development of the Burr Trail switchbacks beyond regular road maintenance. [162]

Burr Trail Compromise? 1992-1994

Once Garfield County had finished improving the sections to the west and east of Capitol Reef National Park, county officials notified the National Park Service that they were now interested in upgrading the sections of the Boulder-Bullfrog Road within Capitol Reef and Glen Canyon National Recreation Area. [163] Per the requirements of the National Environmental Policy Act (NEPA), the National Park Service, in cooperation with the Bureau of the Land Management, began researching and writing an environmental assessment for the entire 66-mile road. The purpose of this environmental assessment, released in March 1993, was to evaluate the various alternatives based on Garfield County's adjudicated right-of-way, and the impacts the alternatives would have on the natural, cultural, and socioeconomic resources of the region. [164]

Garfield County's proposal had not changed much since the 1984 Creamer-Noble report, except for some scaled-down options based on the reality that federal money would be difficult to obtain. Garfield County desired a 28-foot wide, paved road that would allow varying speeds from 20 to 40 miles per hour. In the Capitol Reef section, the plan called for widening and improving the existing road bed, graveling the entire length until funds could be approved for its eventual paving. Either one or two bridges would be built over Muley Twist Wash at the top of the Burr Trail switchbacks. The switchbacks themselves would be excavated and widened to accommodate all-weather travel for two passing cars. To the east of the Burr Trail-Notom Road intersection, a 6,000-foot section that Director Mott had agreed to realign in 1985 would either be improved or redirected onto firmer ground. [165]

The National Park Service, on the other hand, advocated a limited-improvement proposal designed by Superintendent Lundy. Lundy's plan was in several ways similar to Mott's 1985 plan. The superintendent called for a 26- to 28-foot gravel road with the minimum amount of culverts, excavation, and drainage work required to meet the criteria for a safe, all-weather road. The two remaining alternatives in the 1993 environmental assessment called for either more restrictions on improvements or maintaining the status quo. [166]

Throughout 1993 and 1994, Lundy and Ott continued to meet with Garfield County and environmental community representatives in efforts to get this compromise proposal accepted by all sides. Lundy explained, "These dialogs have endeavored to find a compromise position that doesn't necessarily meet the objectives of Garfield County or the original objective of having a paved road, but does speak to retaining the more primitive qualities within Capitol Reef and allowing for only minimal road improvements to satisfy an 'all weather' criterion." [167]

In 1994, the superintendent believed that a compromise that would settle the Burr Trail controversy was closer to resolution than ever before, but he acknowledged that that a great deal of work was yet to be done. [168] Lundy's cautious attitude was well justified, for just 18 months later another conflict launched the Burr Trail back into the courts and the headlines.

New Litigation:1996

In February of 1995, following development of an environmental assessment that evaluated four road improvement alternatives, a Finding of No Significant Impact (FONSI) was signed by regional director and the Utah State director of the Bureau of Land Management. In December 1995, Garfield County road crews began making limited improvements to the Burr Trail road, in close consultation with the National Park Service. Despite frequent meetings of Capitol Reef's Roads and Trails Foreman Bob Cox and Garfield County Engineer Brian Bremner, several violations of the provisions outlined in the FONSI occurred. Nevertheless, these issues were resolved and worked progressed in a generally acceptable manner for several months. On Feb. 3, 1996, however, Cox discovered that Garfield County had removed a sizable portion of a hillside and widened most of a one-mile stretch of road inside the park's boundary, east of The Post. The work, ostensibly to increase visibility on a curve, was not authorized by the National Park Service. Superintendent Lundy immediately halted work at the project following notification of Garfield County that their actions had constituted a violation of the FONSI. National Park Service officials at the regional and national levels were quickly brought into the fray, with the Department of Justice filing suit against the county in the Federal District of Utah in May 1996. At one point in the discovery phase of the proceedings, Judge Bruce Jenkins toured the Burr Trail road along with National Park Service and Garfield County representatives, to view road conditions and alterations for himself. As of February 1998, lawyers for both sides are still preparing their cases. The pre-trial hearing is set for May 11, 1998. The disposition of the case could have important implications for other county and state road claims made under Revised Statute 2477, and for the authority of the federal government to regulate such claims.

Revised Statute 2477

Revised Statute 2477, which simply states, "The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted," was passed by Congress as Section 8 of the Mining Act of 1866. R.S. 2477 was passed in the same era as the Homestead Act and magnanimous railroad grants, all federal inducements to open Western settlement. [169]

Broad interpretations of R.S. 2477 have been promoted by state governments in the past in order to claim unreserved public lands for development purposes. [170] Then, beginning in the 1960s, the growing environmental movement spurred passage of laws, such as the 1964 Wilderness Act, that limited road building on the Western public domain. In an attempt to regulate Bureau of Land Management Lands more closely, the Federal Policy and Management Act (FLPMA) was passed on October 21, 1976. Section 509(a) and 706(a) of FLPMA superseded R.S. 2477, but failed to terminate valid existing rights-of-way. [171]

FLPMA required that all new roads built after Oct. 21, 1976 be extensively studied and reviewed before a right-of-way is permitted. Thus, the chances of new road construction in sensitive areas would be slim. On the other hand, any existing rights-of-way prior to 1976 were still valid. Thus, the focus of road-building advocates, especially in Alaska and Utah, shifted from building new roads to validating and improving existing routes. The ambiguous language of R.S. 2477 made it difficult for federal land managers to deny any seemingly valid claim. In frustration, environmentalists turned to the courts to stop these new threats to the wilderness movement.

The focus of this R.S. 2477 debate centered on the interpretation of what constitutes "construction of highways over public lands." The introductory comments to the 1994 Interior Department proposed R.S.2477 rule changes state:

This controversy stems in large part from the lack of specificity in the statutory language, which has helped create unrealistic expectations in interested local and State governments, environmental and wilderness protection groups and other Federal land users. In addition, the language of R.S. 2477 causes uncertainty and potential conflict for Federal land managers charged with managing and protecting Federal lands according to current environmental and land use laws. [172]

A classic example of the R.S. 2477 controversy is the Burr Trail dispute, which has been aired in district court, Tenth Circuit Court of Appeals, and Interior Board of Land Appeals (IBLA) proceedings. Garfield County argues that the continual use of a road west from Boulder through Long Canyon and its regular maintenance for various public uses since the 1940s gives the county legal right to improve the road as it sees fit. [173] The environmental groups who filed suit to stop the road improvements claim that the route was not a through, commonly used road until the early 1950s. They maintain that existing state law therefore did not recognize the road as a valid public highway before the Bureau of Land Management began regulating the Circle Cliffs region as potential wilderness in the mid-1960s. In other words, according to the environmental lawyers, the region the road traversed was managed as reserved public lands before state law recognized the road as a public highway. [174]

The district court and Tenth Circuit Court of Appeals have concurred with Garfield County's claim to a R.S. 2477 right-of-way. Their position is based largely on testimony by local residents who had used the Long Canyon route since the turn of the century, and also on the fact the county had maintained the route into the Circle Cliffs since the 1940s. [175] The entire 66-mile route was built and maintained prior to the expansion of Capitol Reef National Monument and the creation of Glen Canyon National Recreation Area. The Intermountain Regional Solicitor interpreted these findings as a valid, adjudicated right-of-way for Garfield Country for the entire road from Boulder to Bullfrog. [176]

Yet, while the courts granted Garfield County a R.S. 2477 right-of-way to the road, they also concluded that federal land managers had the right to determine what was reasonable and necessary maintenance and construction, specifically in regard to Wilderness Study Areas. Thus, an important qualifier to the right-of-way ruling is that, according to the departmental solicitor, the National Park Service has the right to "apply a standard of protecting park values which could conceivably result in a stricter standard than for unreserved lands." [177]

The Burr Trail court case has proven important for future R.S. 2477 claims. The courts demonstrated that they were willing to grant rights-of-way based on evidence of use and continual maintenance, which has encouraged other R.S. 2477 claims in the Waterpocket Fold region. On the other hand, the courts' decisions seemed to guarantee federal land managers an active role in determining what kind of improvements would be made. [178]

In December 1988, Secretary of Interior Donald P. Hodel approved some preliminary R.S. 2477 guidelines. These guidelines instructed BLM and National Park Service managers to accept R.S. 2477 claims once three criteria were met. The criteria are:

1. The lands involved must have been public lands, not reserved for public uses, at the time the claim was filed.

2. Some form of construction of the highway must have occurred.

3. The highway so constructed must be considered a public highway. [179]

Yet, even with two pages of accompanying definitions, it became clear that these guidelines were still open to broad interpretation. They also left uncertain the exact procedures by which claims should be handled. [180]

A good example of the continuing problem with R.S. 2477 claims can be found in the recent attempt of the Bureau of Land Management to clarify claims in the Henry Mountain Resource Area. As part of the "pre-planning process" for a new resource management plan, the BLM invited Wayne, Garfield, and Kane Counties to file for any potential R.S. 2477 claims within the resource area, which abuts Capitol Reef National Park along its entire eastern border. A Southern Utah Wilderness Alliance newsletter asserts, "The results of this invitation have been staggering. Together, Wayne and Garfield Counties have asserted rights to 327 different roads." [181]

Given the growing polarization between the multiple-use and minimum-use advocates throughout the West, the heavy reliance on expensive, time-consuming court battles, and the current confusing guidelines and regulations, federal land managers desperately need more specific direction regarding R.S. 2477 claims.

1994 Proposed Rule Changes

As directed by Congress in 1992, the Department of Interior investigated the history and current status of R.S. 2477 claims, held public hearings in eight Western cities, and received over 5,000 pages of public comment -- all in an attempt to "promulgate regulations to address these ongoing concerns." [182] The proposed regulations, as of September 1994, are still subject to public review and change. Their purpose is to "create a process by which R.S. 2477 right-of-way claims can be systematically filed and reviewed to determine whether the elements of the R.S. 2477 statute were met." The regulations would also "establish specific filing requirements and a specific process to facilitate efficient processing of claims." [183]

The proposed rules are an attempt to deal systematically with claims filed under R.S. 2477 prior to its repeal in 1976. The proposed rule changes would accomplish four needed improvements. These are:

1. to provide more specific, applicable definitions limiting R.S. 2477 claims to valid vehicle routes intended for public use;

2. to attempt to resolve differences between state and federal laws;

3. to stipulate that the burden of proof for any claim falls on those applying for the claim, rather than on the federal land manager; and

4. to provide a structured claim procedure and appeals process intended to avoid long and costly court battles. [184]

These rules will most likely be changed during the ongoing review process. The degree of compromise will determine the effectiveness of the final regulations.