Road warriors back on the offensive
by Michelle Nijhuis
The press release couldn’t have been blander. The "Final Rule on Conveyances, Disclaimers, and Correction Documents," announced by the Bureau of Land Management on Christmas Eve, sounded like little more than regulatory housekeeping. The rule, said the agency, was simply designed to "remove clouds of title to the lands in which the BLM no longer holds interest."
So why had the proposed rule received more than 17,000 public comments, most of them negative? Why did press releases from environmental groups use the words "bulldozers" and "national parks" in such uncomfortably quick succession?
The newly minted rule continues an old, ugly argument over roads on public lands. The tussle has already spawned a string of lawsuits, at least one arrest, and countless hours of overblown rhetoric. These days, a lot rides on its resolution.
The state of Utah has claimed rights-of-way for about 10,000 routes across federal lands, some within Grand Staircase-Escalante National Monument. Southeastern California’s San Bernardino County has claimed about 5,000 miles of desert trails and roads, about half of them in the Mojave National Preserve.
On January 10, just days after the administration’s final rule was officially adopted, commissioners in northwestern Colorado’s Moffat County also took action: They adopted a resolution that claims rights-of-way for hundreds of miles of routes on public lands, including Dinosaur National Monument and areas proposed for wilderness designation by environmental groups.
Former Moffat County commissioner T. Wright Dickinson, who stepped down from his post in January, says his county’s position is simple. "These are valid existing rights that were granted by Congress," he says. "They’re based on the most common-sense law that Congress ever passed."
New life for an old law
That "common-sense law" dates back to 1866, when Congress passed the Lode Mining Act. Buried in the act was a single sentence known as Revised Statute 2477, or "RS 2477" for short: "(T)he right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."
In those days, the acres "reserved for public uses," such as parks, were almost nonexistent, so local governments had more or less blanket permission to build and maintain roads on public land.
More than a century later, the 1976 Federal Land Policy and Management Act repealed RS 2477 and established more stringent restrictions. The new law contained a catch, however: If states, counties or even individuals could prove that a road had been in continuous use since before 1976 — or before the land was reserved for a park or other protected area — they could still claim it under RS 2477.
This caveat remained relatively obscure until 1988, when President Reagan’s Interior Secretary, Donald Hodel, issued a new official policy on RS 2477. His loose interpretation of the statute said even the most primitive paths could be claimed as rights-of-way.
The Hodel policy was welcome news in southern Utah, where county governments were fighting their state’s growing wilderness movement. Since wilderness areas must be roadless, county commissioners began using RS 2477 claims to literally tear holes in proposed wilderness areas, as well as existing wilderness areas and parks.
The tactic proved popular throughout the West. Some counties even sent bulldozers and road crews to widen and pave routes on public land (HCN, 10/28/96: Utah counties bulldoze the BLM, Park Service).
In the mid-1990s, Interior Secretary Bruce Babbitt attempted to tighten the federal road policy, but the Utah congressional delegation successfully pushed for a moratorium on all RS 2477 policy changes. Babbitt responded with a moratorium of his own, blocking his department from processing nearly all RS 2477 claims.
‘A one-two punch’
That’s how things stood on Christmas Eve, when the bland BLM press release appeared on the Internet. Under the new final rule, counties and other "entities" are eligible to apply to the agency for a "disclaimer of interest" on a piece of disputed property, such as a road. The BLM will then decide if the federal government is willing to give up its claim to the property.
Environmentalists fear the rule will make it quicker and easier for counties to get federal support for their RS 2477 road claims — and make it tougher to fight the claims in court.
BLM spokesman Jeff Holdren says the rule does provide "another option" for these RS 2477 claimants. But is it a way around the existing Babbitt moratorium? "I just don’t know that yet."
It may be a moot point, as the moratorium’s days are likely numbered. In a speech to the Alaska Resources Development Council in late November, Deputy Secretary of the Interior J. Steven Griles promised that his department would issue a new policy on RS 2477. Though Interior Secretary Gale Norton isn’t likely to return to the Hodel era, her policy will surely be more relaxed than the thwarted Babbitt proposal.
"We’re going to see a one-two punch here," says Ted Zukoski, an attorney for Earthjustice in Denver. The combined effect of the final rule and the new policy, he says, could be enormous. "We’re going to see thousands of proposals, and we’re going to have to fight them route by route."
The author, a former HCN senior editor, writes from Paonia, Colorado.
You can contact ...
• Earthjustice, Denver office, 303/623-9466;
• Colorado Wilderness Network, Steamboat Springs, 970/871-1786;
• Moffat County Commissioners, 970/824-5517.