Road warriors back on the offensive

Christmas Eve announcement reignites controversy over roads in wilderness areas, parks and monuments

  • RIPPING IT UP: Enraged by the 1996 decision to create Grand Staircase-Escalante National Monument, Garfield County, Utah, commissioners sent bulldozers in to make sure what they considered roads would remain designated roads

    Richard Menzies
 

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.
High Country News Classifieds
  • WRITING SKILLS TUTOR FOR HIRE!
    Fort Collins, CO college students welcome. Meet on your college campus!
  • CANYONLANDS FIELD INSTITUTE
    Colorado Plateau Natural & Human History Field Seminars. Lodge, river, hiking options. Small groups, guest experts.
  • NATURE EDUCATION DIRECTOR
    Our mission is to inspire a life-long connection to nature and community through creative exploration of the outdoors. We are seeking an educational leader who...
  • DEVELOPMENT AND MARKETING DIRECTOR
    The Development and Marketing Director is a senior position responsible for the execution of all development and marketing strategies to raise funds and increase public...
  • DEVELOPMENT COORDINATOR
    Coordinates all Wyoming Wildlife Federation philanthropic activities. Tasks include identification, recruitment, and retention of donors, organizing fundraising events, and assisting with grant writing.
  • REALTOR NEEDS A REMOTE ASSISTANT
    This is a business assistant position, The working hours are flexible and you can chose to work from anywhere of your choice, the pay is...
  • CORPORATE & GRANTS PARTNER MANAGER
    Forever Our Rivers Foundation Corporate Partnerships Manager February 2020 www.ForeverOurRivers.org Forever Our Rivers Foundation, a 501(c)(3) nonprofit, was formed in late 2016 with the mission...
  • EXECUTIVE DIRECTOR
    Central Oregon LandWatch is seeking an Executive Director to advance our mission and oversee the development of the organization. Job Description: The Executive Director oversees...
  • WESTERN NATIVE SEED
    Specializing in native seeds and seed mixes for western states.
  • MEDIA DIRECTOR
    Love working with the media? Shine a spotlight on passionate, bold activists fighting for wild lands, endangered species, wild rivers and protecting the climate.
  • STAFF ATTORNEY - NEVADA
    The Center for Biological Diversity is seeking an attorney to expand our litigation portfolio in Nevada. Come join our hard-hitting team as we fight for...
  • EXECUTIVE DIRECTOR
    The Montana Wildlife Federation seeks an energetic leader to advance our mission, sustain our operations, and grow our grassroots power. For a full position description,...
  • HISTORIC COMMERCIAL OPPORTUNITY IN DOWNTOWN NOGALES
    Nogales. 3 active lower spaces and upper floor with lots of potential. 520-245-9000 [email protected]
  • CHUCK BURR'S CULTUREQUAKE.COM BLOG
    Change will happen when we see a new way of living. Thinking to save the world.
  • COMING TO TUCSON?
    Popular vacation house, furnished, 2 bed/1 bath, yard, dog-friendly. Lee at [email protected] or 520-791-9246.
  • DIRECTOR, TEXAS WATER PROGRAMS
    The National Wildlife Federation seeks a Director to lead our water-related policy and program work in Texas, with a primary focus on NWF's signature Texas...
  • SPLIT CREEK RANCH
    Spectacular country home on 48 acres with Wallowa River running through it! 541-398-1148 www.RubyPeakRealty.com
  • OJO CALIENTE COMMERCIAL VENTURE
    Outstanding location near the world famous Ojo Caliente Mineral Spring Resort. Classic adobe Mercantile complete w/living quarters, separate 6 unit B&B, metal building and spacious...
  • NEW MEXICO GILA NATIONAL FOREST HORSE RANCH
    43 acres in the Gila National Forest. Horse facility, custom home. Year-round outdoor living. REDUCED to $999,000, 575-536-3109.
  • EVERLAND MOUNTAIN RETREAT
    Everland Mountain Retreat includes 318 mountaintop acres with a 3,200 square foot lodge and two smaller homes. Endless vistas of the Appalachian mountains, open skies,...