The facts surrounding the Recapture Canyon conflict date back long before May 10, 2014 or even the controversies of 2005. They also stem back to areas geographically located far away. All the same, the facts are in support of the existence of a throughway road from the town site of Bluff up the bottom of Recapture Canyon to the base of the Abajo Mountains.
In the year 1820, a young boy, by the name of Joseph Smith, began a unique religious movement under the pretense of the Nation’s freedom of religion. However, due to some certain practices of the religion, Joseph’s life was taken, and his followers were persecuted to the point of an exodus of sorts. After being forced from state to state, the new leader of the religion, Brigham Young, and his followers pioneered across the Great Plains and over the Rocky Mountains until they declared the current State of Utah their home in 1847.
Six months later, the land on which Young’s believers inhabited was ceded to the United States Government by the Treaty of Guadalupe. Seeing this event as an opportunity, as well as a threat, the leaders of the religion quickly drafted a State Constitution for what they called the State of Deseret. The State of Deseret was intended to be a sanctuary from persecution.
With the desire of freedom and the ability to expand, the state was roughly bordered North and South by the Oregon Trail and the Rio Grande, and East and West by California and the peaks of the Rockies. Following some debate, the United States Government issued an Organic Act during the Compromise of 1850 to create the Utah Territory. The territory was allotted boundaries that were North and South similar to that of present, and East and West of California to the peaks of the Rockies. However, in the following eighteen years, the territory was trimmed to its current boundaries.
Mormon settlements, the religion of discussion, were organized moving south from their origination in Salt Lake down deep into Arizona. The leaders were still insistent on the State of Deseret. However, the religious sovereign governance of the territory slowly faded as non-Mormon settlers began arriving in abundance at the completion of the Transcontinental Railroad in 1869. Also, as this great Nation began an ease of warfare in the late 1860s, many former soldiers took part in the westward expansion and began chasing silver in the territory of Colorado.
Ranchers of the desert Southwest were also in pursuant of the lush mountain summer ranges for their livestock. As Utah was still vying for statehood, and still protective of their borders following persecution and an ever decreasing border of their current home, they were aware of these many non-Mormon encroachments and the fact that the three additional ‘Four Corner States’ were also vying for statehood.
Additionally, the United States Government was retaining land all across the Colorado Plateau to be reserved as Native American Reservations. Furthermore, the United States Government also criminalized the same practices that segregated the Mormons from the beginning and began seeking prosecutions.
With all this happening, as well as their ever pursuing missionary work, church and state leaders requested a party of families to relocate to the very rural Southeast corner of the state in 1878.
This request was pursuant of creating settlements to strengthen the possession of that area to both boundary changes as well as more non-Mormon settlers settling areas that couldn’t be policed by the State or church due to the remoteness of the area.
This would be accomplished by establishing settlements in the area, as well as be-friending those who may already be there, namely the Native Americans.
Due to the harshness of the terrain and the remoteness of the area, the families of the expedition didn’t arrive to the area until 1880. However, once they were there, they did just what they were requested.
They built the settlements of Bluff, Montezuma Creek, and others as well as be-friended the inhabitants they encountered. In pursuit of accomplishing these tasks, they needed access to trade routes.
Returning the way they came wasn’t an option, as per their assignment was to strengthen Utah, going South or West weren’t options, so, ultimately, they were consigned to head North.
The Old Spanish Trail crossed the Colorado River around current day Moab, so that was where these isolated desert settling individuals were consigned to make trades for their survival.
Knowing the terrain in which they had made their original trail across, and looking northward from the San Juan River, these settlers would have felt certain that the best and easiest path would be to traverse up the bottom of a canyon to its mouth at the base of the Abajos and then climb out and descend the same way to the head of the Colorado where they would find Moab. That is what they did.
As San Juan County had been declared a county in February of 1880, its court system was a legal decision maker for the territory and, in accordance with the Utah Organic Act, the United States.
On September 29, 1884, the court of San Juan declared, “The road running from the mouth of Recapture Creek to the Northern line of the County via the Blue Mountains and Cane Springs was declared a County Road.” (hirf.org/history_hist_san_juan_court_records.asp)
Further clarification of said road can be found in Albert R. Lyman’s ‘History of San Juan County’, “In 1890 a road, at least it was called a road in that day, … Recapture too, was the scene of many thrilling adventures, both along the hillside on its north, and in the crooked wash where every now and then a raging flood played freaks with the crossings.
“Travel was very irregular, and sometimes no wagon broke the track for weeks at a stretch. And woe to the team which faced the shifting soil on Bluff Bench after one of these long intervals. The road was simply a barren path through the drifting sand, into which the wheels sank a disheartening depth, coming slowly up therefrom with the miserable substance sliding from every spoke.” (http://hirf.org/history_hist_san_juan_36-40.asp)
With additional reading in Lyman’s writings, the trail can be described as traveling up the bottom of the canyon to Bull Dog where it climbed onto Mustang Mesa and continued North until it crossed the head of the North Fork of Montezuma and up to the base of the mountain (modernly the Dude Ranch and Wagon Wheel Trail can be referenced).
It wasn’t until the turn of the twentieth century that the route of the highway changed. Walter C. Lyman determined that a town site could inhabit the remote White Mesa.
Albert R. Lyman’s writings again read, "The county road, the only way from Monticello to Bluff, traversed Mustang Mesa, leaving the town-to-be a remote region into which wagons seldom ventured.
“Yet the most direct route for that road between the two old towns, led exactly across the site of the new one, and W. C. Lyman began a movement to have it changed to that route.
“His proposition met opposition and ridicule; some folks declared the new road would be at least twelve miles longer than the old one, and they swore they would travel the old road though they had to maintain it themselves.
“In spite of all this rash talk, the new road was opened southwestward from Devil Canyon, crossing Recapture at the mouth of Bull Pup, and traversing fifteen or more miles of White Mesa. It passed directly over the place of the proposed town and shortened the distance by several miles between the two old settlements." (http://hirf.org/history_hist_san_juan_46-50.asp)
As clarified, the trail in debate has existed for at least one hundred and thirty years. Notwithstanding the necessity of the road, and the declaration of it being a county road, the Federal Revised Statue 2477 of 1866 declared that “the right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted."
There has historically been many case laws where it has been determined that the State has the governing authority to validate the existence of a road in accordance to the R.S. 2477 (see Standard Ventures, Inc. v. Arizona; Fisher v. Golden Valley Elec. Ass'n., Inc. 658 P.2d, Alaska;1983 - citing United States v. Oklahoma Gas & Elec. Co.328 U.S.; 1943.)
As San Juan County is a legal sub-division of the State of Utah, the trail is legal in the eyes of the State. Additionally, Ball v. Stephens, 258 P.2d, Cal. 1945 mandated that “there is no requirement that the historic route and its current location coincide exactly. Where parts of an historic road or trail are obliterated by another more modern highway, or are destroyed by natural forces, the right of way is not obliterated or destroyed.” (http://famguardian.org/publica…/propertyrights/rgtoway2.html)
As such the historic trail in debate has maintained protection by law in regards to the difficulties of maintaining the exact course due to the frequent washouts caused by the creek.
Although the Federal Lands Policy and Mangament Act of 1976 repealled R.S. 2477, it maintained that existing trails would still be recognized. Title Five: Rights-of-Way Sec. 501. [43 U.S.C. 1761] (C) (2) (A) states, “Nothing in this subsection shall be construed as affecting any grants made by any previous Act. …” (http://www.blm.gov/flpma/FLPMA.pdf) Even with the right of FLPMA for the BLM to close the area to motorized vehicle access, the throughway road was protected from said closure under the same FLPMA.
Although the trail hadn’t been included in previous County pursuits to list R.S. 2477 roads, doesn’t change the fact that it was categorized as such. “[Not] designating the road (an R.S. 2477 road) had nothing to do with no evidence of usage, because there is plenty of evidence to support its usage and (presence) prior to 1976.
According to locals and past commissioners the reason it was not listed originally, along with hundreds of miles of other roads in the county, was because when they sat down to do all that, both the county and the BLM didn't think two track roads, like the one in Recapture, would ever be questioned as to if it was or wasn't a road.
It just wasn't thought about and no one at the time thought they would have to go through every single road. So they just focused on the main roads that were the most important at the time.
According to the BLM’s 1975 set of aerial photos of the county, the road was in Recapture Canyon. It is visible in these photos most the way through the canyon except the narrow 2 mile section that presently has the ATV trail in it.
The road can be seen in places in that 2 mile stretch following the open wash in the bottom of the canyon that no longer exist due to the [Recapture] dam being built which has prevented spring runoff and flash floods since 1986. There are also a couple locations in this section that the road appears to follow a higher bench.” (Monte Wells, The Petroglyph)
Furthermore, even without this documentation the State of Utah had previously accepted roads such as this. “Senate Bill 37 or the new D-Road system (Public Access Road System) passed unanimously in the senate with only 4 dissenters in the house.
The counties are to pass an ordinance on this. This bill defined a road as any road way or other land surface route that is opened to 4-wheel drive vehicles and were in existence as of Oct. 21, 1976, the date of the BLM Organic Act passage.” (http://sanjuancounty.org/…/Commission%20M…/6February1978.htm)
The Utah Enabling Act of 1894 is headed with the statement “An Act to enable the people of Utah to form a constitution and State government, and to be admitted into the Union on an equal footing with the original States.” It also maintains the United States Constitution to be the head of its governing power. (http://cdn5.freedomoutpost.com/…/04/HTR4_UTAH_ENABLING_ACT.…)
According to The Constitution of the United States, very little land shall be owned by the Federal Government: Article one, section eight: “The congress shall have power….to exercise exclusive Legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.”
Additionally, article four section three states that “the Congress shall have power to dispose of and make all needful rules and regulations the territory or other property belonging to the United States; and nothing in this constitution shall be construed as to prejudice any claims of the United States, or of any particular state.” (http://tenthamendmentcenter.com/…/federal-land-ownership-…/…)
As such, the entirety of the FLPMA is questionable along with the closure of the canyon.
Furthermore, closing an area to a single category of citizens (ie. those who use motorized vehicles out of recreation or necessity) should be considered discriminatory.
Additionally, the closure was stemmed from a criminal investigation of two men ‘building’ an unauthorized trail. However, the trail had been in existence for over a hundred years.
Furthermore yet, the area was considered, at that time, an ‘open riding area’ by the BLM and the ‘equipment’ used in the construction of the trail was an ATV. In an ‘open riding area’, ATVs are permitted to be ridden on and off trails, and as such could be ridden in the canyon.
No matter the undeniable facts presented, the history of Recapture Canyon and the stemming debate originate much earlier than even 1820. At roughly the meridian of time, a pueblo style people moved into the Colorado Plateau. These people have been named the Anasazi.
For whatever reason, they removed themselves from the plains, and the pueblo tribes of the plains, and built their homes in the cliff faces of the now called Canyonlands. Recapture Canyon has preserved the artifacts of one facet of this people for thousands of years. Just as the trail has been long in existence, the artifacts have existed there long before the trail.
It is not the desire of the local people to have this historical page of their home to be destroyed and erased from the land. It is for that very reason that San Juan County has sought the Bureau of Land Management’s assistance in researching and determining where the artifacts have been encroached by the trail to deem necessary re-routes multiple times.
Unfortunately, instead of working with the County, the BLM cited CFR 8341.2 as their governing authority and closed the entire area and has avoided proceeding with any resolutions.
It has been argued back and forth about the legality of the FLPMA, as well as the use of 8341.2, and its own policies and instructions, to instigate the closure. Nevertheless, it was, in 2007, the point of view of the United States Government that the FLPMA and the authority it granted to the BLM permitted the closure of the area.
It will be necessary for the Federal Court System to interpret the laws to be applicable to this case and era of time. However, as already stated, although the land and area may have been closed, the road and its right-of-way were substantiated and protected from the authorities of CFR 8341.2 by the CFRs own originating title.
Regardless of personal opinion towards Mormons, Government, Native Americans, land use, ATVs, or any other entity of this article, the historical facts are substantial that the trail in the bottom of Recapture Canyon has existed for over a century of time.
In result, the existence of the trail, its usages, and the protest of May 10 that took place on it, were legal. When people argue that the ruts caused by the trail are deep and permanent, they are validating the local emotions concerning the fact that those are ancestral ruts of many locals.
The trail in debate holds much historical importance, both ancestrally and anciently, and shouldn’t be a place of restricted access, but a relic of enjoyment for everyone.