This entire flapdoodle hinges on interpretation of two laws, Revised Statute 2477 -- RS 2477 for short – and the Federal Lands Policy and Management Act of 1976 -- FLPMA, said "flip-ma."
RS 2477 says, in full, "The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted." If settlers needed to get from Point A to Point B, and needed to build a road or trail or track to do it, they had permission.
By 1976, RS 2477's usefulness in settling the West was over, and it was duly repealed by FLPMA. However, trails, roads and highways existing on October 21, 1976, and the public's right to use them, were grandfathered in Section 509: "Nothing in this subchapter shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted." In short, what was on the ground, stayed on the ground.
FLPMA's fundamental reform of public land management instructed the Department of the Interior to conduct inventories of what it had. That included minerals, grazing lands, disposable properties and a limited, specific review of public lands to find those parcels suitable for congressional designation as wilderness.
Section 603 directed Interior to focus on "roadless areas of 5,000 acres or more and roadless islands of the public lands," identified during the inventory. Accordingly, the Bureau of Land Management made up a list of 22.8 million roadless acres of potential wilderness known as the "Section 603 Wilderness and Wilderness Study Areas (WSAs)." BLM determined 9.6 million acres to be "suitable" and recommended them as wilderness. Congress has since voted to designate 6.5 million acres as official Wilderness with the remaining 15.5 million acres still being managed as wilderness until Congress votes yay or nay.
The 1991 result of BLM's inventory has never been enough for wilderness advocates. Greens prevailed on the Clinton administration to embrace a series of administrative moves that threw the wilderness question wide open on 200 million acres in the West.
While Clinton's actions were a real thumb in the eye to much of the rural West, the fact remains that under Sections 201 and 202 of FLPMA, BLM has clear authority to plan whatever land uses it wants. Interior Secretary Bruce Babbitt interpreted that authority to mean that the planning process could be used to find, plan and manage lands as de-facto wilderness.
Doing so was a holding action until a wilderness-friendly Congress could be elected. The recently-chucked BLM wilderness study handbook (implemented three days before Clinton left office) was merely the last such holding move.
President Bush's Interior Secretary, Gale Norton, has the same authority as Babbit: to inventory land for wilderness or other characteristics, and plan as desired. She chose differently, and her successor might choose something else.
Therefore, it's fairly safe to say that the environmental coalition now filing suit against the agreement between Utah Gov. Mike Leavitt and the federal government to settle Utah's RS 2477 claims will lose -- for the same reasons that much of the Utah counties' lawsuit against Clinton's "un-road" policy was tossed out. The poorly-written FLPMA leaves lots of wiggle room for whoever won the last election.
But FLPMA's intent is clear: Congress never intended wilderness study to be a perpetual-motion machine. Congress wanted BLM to find and designate genuine wilderness, i.e., truly roadless, and in chunks bigger than 5,000 acres. After having done so, the agency was to turn its findings over to Congress for final resolution. Period.
Did FLPMA's authors foresee the wilderness review dragging out as it has? The Western counties now fighting to assert their rights probably never imagined that roads -- real roads that passenger cars can easily drive -- would vanish before the eyes of agency staff driving those very roads in Jeep Cherokees. As a motorcyclist, I find it silly to pretend that so many trails are said to longer exist.
Folks, the infrastructure is on the ground. Period. BLM country is pretty wild in places, but it's not wilderness, and no amount of spin can change that reality.
While any American would want real wilderness designated and protected, creating fake wilderness through bureaucratic and legal gymnastics defies common sense. But then again, don't forget that Congress sits smack-dab in the most primitive wilderness of all.
Dave Skinner is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is a youthful curmudgeon in Whitefish, Montana.
Note: the opinions expressed in this column are those of the writer and do not necessarily reflect those of High Country News, its board or staff. If you'd like to share an opinion piece of your own, please write Betsy Marston at firstname.lastname@example.org.