Kane County is fighting the feds and its residents, claiming title to routes across private land.
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Glendale, Kane County • On the far end of a pinyon- and sagebrush-topped mesa overlooking Kanab Creek, Chris Odekerken maneuvers his big yellow Dodge Ram over dirt swells, around trees and rocks and through vegetation crowding what officials allege is a county road called K2855 that cuts through his land.
He doesn't seem to mind that the pinyon branches are battering the mirrors and scratching the sides of his truck. Odekerken is trying to make a little-heard point in the fight between Utah counties and the federal government over public access to roads like this.
"There is no way a normal car could do this," said the rancher who owns 1,280 acres on the south end of Glendale Bench, sitting atop the pale Elkheart Cliffs that rise above Orderville and Glendale. About a half-mile short of the road's end at a cliff, Odekerken gives up and turns his truck around to return home, a couple of miles away.
Two dirt tracks extend beyond his property for about a mile onto public land before ending at overlooks. Kane County is suing the federal government to win title to these obscure routes and about 900 other segments under the repealed highway law known as RS2477.
That the Glendale Bench routes cross private property is beside the point. They lead to places that the public visits, such as Diana's Throne on the bench's southern tip, according to Kane County Commissioner Doug Heaton.
"We have a fiduciary responsibly to maintain public access to those points beyond the Odekerken property," Heaton says.
Free-range vandals • But the county's position has come at a cost to Odekerken and his neighbors Gay and Derik Brinkerhoff, who say county officials cut the locks off their gates, threatened them with prosecution and posted signs declaring the roads public.
"It's a policy of being able to go wherever [you] want, when [you] want. It's not too great for the land," Odekerken fumes. "I found people out here shooting rabbits just for the fun of it."
Empty beverage cans line the road, gates are vandalized and left open, and cows have gone missing. Deer numbers are way down, leading Odekerken to suspect poachers are at work.
A Dutch citizen who made his fortune in Europe's tortilla industry, Odekerken is pursuing his dream of operating a ranch in country he considers the most beautiful on Earth. He purchased his acreage 10 years ago from the Brinkerhoffs, multi-generation Glendale ranchers who still own a spread just to the north. Together, the families run 70 head of cattle, bearing the brand "SU," as part of a nascent natural beef company they call Steak of Utah.
The Brinkerhoffs and Odekerken have filed papers in Kane County's RS2477 lawsuit seeking to intervene and get five road segments crossing their land struck from the county's claim. Their intervention marks a new front in Utah's road controversies, pitting counties against their own residents.
"Nobody has taken into account these private property owners," Odekerken's lawyer, Bruce Baird, says. "The county is in a philosophical fight with the feds. It's a fight between two dinosaurs, and my clients are the rodents scurrying underneath trying to not get squished."
Odekerken points at the bullet-scarred steel structure where the road enters his property from the north.
"I want to be able to say who comes out on my land and who doesn't," he says. "Long story short, these are private roads. I will fight Kane County over it."
The Brinkerhoffs, whose property lies a couple of miles closer to civilization, say they would grant access to those who ask. They just want to lock their gate to keep out irresponsible people who trash the land, which they are tired of cleaning up.
"Ninety percent of the people are welcome out there. We have a big investment and we want to protect it," Derik Brinkerhoff says. "It's hard to own a piece of property if you can't have control over it. If I know who's out there, I know who to go to if something happens."
Costly struggle • With just over 7,000 residents, the county incurs nearly $1 million a year in outside legal expenses asserting its RS2477 claims. Officials say the fight is worthwhile because for too long the federal Bureau of Land Management, which controls most of the county's land, has failed to maintain its roads and closes them to the public. Heaton says he empathizes with the Brinkerhoffs and Odekerken, whom he knows and considers good people. But he believes they have recourse other than locking gates, which he says could worsen their vandalism problems.
"I am a private property advocate. If the road terminates on their property and they want to lock the gate, more power to them," Heaton says. "The rub comes when there are public needs beyond that property."
The central road down Glendale Bench extends for about 9 miles south of Glendale before ending at Diana's Throne, a half-mile beyond Odekerken's land. The bench was homesteaded in the 1930s by Alonzo Brinkerhoff, Derik's grandfather. Odekerken has found a 1926 map showing no roads anywhere on the southern half of the bench.
The county, meanwhile, has recorded affidavits from three longtime residents Clarence Spencer, Leon Cox and Robert Caruso claiming they used the Glendale Bench trunk road, called K2800, in the 1960s to hunt and picnic. Under the RS2477 statute, counties may assert title to a right of way crossing public land if they can prove it was in "continuous" use for a 10-year period prior to the law's repeal in 1976.
In the boilerplate language common to many of Utah's RS2477 affidavits, these witnesses say "The road has been open to the public for all to use, to come and go as they pleased."
Odekerken has lined up his own witnesses who say the K2800 spurs did not exist prior to the 1960s.
The rancher has spent $120,000 upgrading the seven miles of road to his gate and a lot more restoring the land. The county meanwhile has invested nothing in the road it dubs K2800 or its spurs.
"They call it a class B road and don't do anything to maintain it," Odekerken says. "It stops in a no-man's land. You just go out, turn around and come back. You won't want to come out here. You would get lost."
Utah's road warrior
Kane County is Utah's busiest litigant in the RS2477 battle. It is just one of 22 counties suing the federal government to gain title to old rights of way under the repealed 19th century statute. But its claims are the most far-reaching and could set precedents that will likely guide outcomes for the other counties' claims.
Federal law guarantees counties access to rights of way across public land that were mechanically constructed or were available to public use for 10 continuous years prior to 1976, the year the statute was repealed.
With state support, Kane County has filed three suits in federal court in recent years targeting hundreds of routes, some of them dead-end dirt tracks with little use and some crossing private and national park lands. Officials say they need to keep these "county roads" open to ensure access to public lands, but conservationists suspect the real motive is to degrade the lands' natural values to complicate wilderness designations and other protective measures.
"If the real issue is to ensure a route is open to mineral or grazing leases, the BLM grants those all the time. [RS2477] is a strange instrument to accomplish this goal," said Steve Bloch of the Southern Utah Wilderness Alliance. "They have spent millions. This will be an incredibly expensive and time-consuming endeavor."
Kane's first suit was decided mostly in the county's favor in March, but it dealt with just 12 road segments and is heading to an appeal. The other two cases, which have been consolidated, cover far more territory. According to a SUWA analysis, still at issue in Kane are 895 route segments spanning 2,104 miles mostly inside the Grand Staircase-Esclante National Monument.
For each route they claim is theirs, the counties must line up a witness who can describe how the road was open to the public back in the 1940s, 1950s and 1960s. With taxpayers footing the bill, lawyers are touring southern Utah taking "preservation" depositions of elderly witnesses who may not live long enough to testify in a legal process expected to take years.