There’s a better way to clean up the RS 2477 road mess

The West’s public lands face many 21st century problems, including pressure from population growth and energy development. But they also face an old problem — the legacy of the Mining Law of 1866, which granted rights-of-way “for the construction of highways” on federal lands not set aside for other uses.

That grant became section 2477 of the Revised Statues — RS 2477. In 1976, it was repealed by the Federal Land Policy and Management Act of 1976, or “FLPMA.” But FLPMA neither revoked valid RS 2477 rights, nor set a deadline for asserting those rights. So, lawsuits have been the only way to finally determine what lands are affected.

Although the status of most long-established highways is not in dispute, this ambiguity in federal law often leads to conflicts over ownership, questions about liability and increased risks of damage to lands and resources from construction work and poorly regulated traffic.

Many sensitive areas could suffer. In Colorado, affected areas could include Dinosaur National Monument, Browns Park National Wildlife Refuge and many wilderness study areas. Others may include Mojave National Preserve and Death Valley National Park, and many of Alaska’s national parks, national wildlife refuges, and wilderness areas as well as lands transferred under the Alaska Native Claims Settlement Act. I have also heard from people in Colorado and elsewhere who are worried about their private lands.

This needn’t happen. There is precedent for a better approach. For example, FLPMA set a deadline for pre-1976 road claims to be recorded or else be deemed abandoned.

The courts upheld that approach. If it had been applied to claims under RS 2477, the 1866 mining law would be mostly a subject for historians and less of a headache today.

Instead, for more than 25 years, Congress and the land-managing agencies have had to wrestle with such issues as defining “highway” and “construction” in order to weigh RS 2477 claims.

Old Interior Department policies would have allowed virtually any route traveled by a person or a pack animal to qualify as a highway. Stricter criteria were proposed in 1994, but Congress blocked them and then prohibited any new RS 2477 regulations until enactment of new legislation. Interior Secretary Bruce Babbitt then ordered a halt to consideration of most RS 2477 claims.

The law still says Congress must act before there can be new regulations “pertaining to the recognition, management, or validity” of RS 2477 rights. But instead of proposing legislation, the Bush administration is trying an end run around Congress by applying new regulations for issuing “disclaimers of interest” to end federal ownership of lands.

Their plan is to do this first with some RS 2477 claims by the state of Utah. Initial cases will not involve national parks, wildlife refuges, or wilderness areas, but they could involve the Grand Staircase-Escalante National Monument or Utah lands proposed for wilderness designation in pending legislation. And there is no guarantee that even these limits will apply in other states.

I think the administration’s plan is legally unsound and will bring lawsuits. That is why I have called on Secretary of the Interior Gale Norton not to follow this course, and have introduced a bill (H.R.1639) that would be the foundation for a better approach.

Under my bill, any RS 2477 claim not filed within four years would be considered abandoned. Those claiming to hold RS 2477 rights already have had ample time to decide whether to assert them, so I think another four years would be more than fair.

The bill addresses the potential threat to the national parks, national wildlife refuges, national trails, national wild and scenic rivers, designated wilderness areas and wilderness study areas, as well as to lands that the United States has transferred to other owners. It does so by saying an RS 2477 right on those lands will be considered to have been abandoned when the lands were designated for conservation-purpose management or were transferred, unless convincing evidence shows continued use of a well-established highway right-of-way was intended. The bill also specifies how RS 2477 claims will be handled and the rules for judicial review of administrative decisions about assertions of RS 2477 claims.

My intent is to gives ample opportunity for the assertion of rights claimed under RS 2477, with ultimate resolution by a court if necessary. At the same time, both the public and private parties will finally know what they own — without having to worry about new RS 2477 claims being made against them.

Mark Udall is a Democratic congressman from Boulder, Colorado. Writers on the Range, a weekly column service of High Country News, appears in newspapers around the West and is posted three times a week at www.hcn.org.

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