RS 2477: A loophole for vandals

  • Jeep mired in claimed RS 2477 right-of-way in Arch Canyon, Utah

    Scott Groene

For years, Utah's Arch Canyon was closed to motorized vehicles to protect sensitive riparian and natural values. But when off-road vehicle users began promoting the canyon as a travel route for their annual jeep safari, the Bureau of Land Management opened the canyon to vehicle use.

Now, vehicles crush streamside vegetation, send fragile soils downstream and shatter the quiet. The newsletter of the pro-ORV Sahara Club boasted: "The eco-freaks are crying in their beer."

BLM's decision to open Arch Canyon to off-road vehicles was based on "Revised Statute 2477," a 128-year-old statute enacted only a year after the Civil War and not repealed until 1976. Could this archaic statute also be used to bulldoze roads across federal lands we think are protected - lands like Denali National Park, the Arctic Wildlife Refuge, Utah's Capitol Reef National Park?

The answer rests with Bruce Babbitt's Interior Department, which will soon decide how to deal with rights-of-way claimed under RS 2477. Draft regulations are expected to be released in March.

RS 2477 was a one-sentence provision in the Lode Mining Act of 1866. It granted "rights-of-way" for the "construction of highways" across federal lands not "reserved" for other public uses. Although the statute was repealed almost 20 years ago, counties, states and ORV users across the West are now claiming "RS 2477 rights-of-way" for thousands of miles of dirt roads, tracks and trails crossing public lands, national parks and wildlife refuges.

This deluge threatens to create a web of expanded, paved and unneeded roads across our public wildlands and parks, permanently scarring landscapes and creating a management nightmare. In some places, RS 2477 claims have been asserted for virtually every dirt track crossing the federal lands - even for abandoned tracks where natural reclamation is well advanced.

RS 2477 claimants assert much more than entitlement to a right-of-way. They also assert the right to control the future of all the claimed routes - to widen, realign, and pave any or all of them with no public input, no consideration of environmental impact and no federal oversight. The result would be a devastating stranglehold on public lands and national parks - the underlying motive of some road grabbers.

RS 2477 is an antiquated relic of mid-19th century public land policies, enacted when giveaways of public lands were the order of the day. RS 2477 was repealed in 1976 with the enactment of the Federal Land Policy and Management Act. FLPMA's right-of-way provisions implement the contemporary view that reasonable access should be balanced with environmental protection.

But RS 2477 remains a problem because FLPMA did not terminate rights-of-way that had been legitimately established under RS 2477 before it was repealed. Former Secretary of Interior Donald Hodel attempted to turn that loophole into a huge tunnel in 1988, when he issued a policy statement stating that virtually any route ever traveled by man or pack animal qualifies as a "pre-existing" RS 2477 right-of-way. The policy is legally indefensible, but it ignited an explosion of claims throughout the West, especially in Utah and Alaska.

A map of these claims looks like a plate of spaghetti. Claimed routes criss-cross national parks, scenic wildlands, wildlife habitat, and sensitive watersheds. The National Park Service recently wrote that the potential impact on national parks from RS 2477 rights-of-way could be "devastating."

In Utah, more than 4,000 different routes totalling thousands of miles across federal lands have been claimed by just five counties. The Bureau of Land Management estimates that Utah counties will ultimately claim more than 10,000 separate routes, totaling tens of thousands of miles.

Fueled by ORV groups and the wise-use movement, the RS 2477 wildfire has spread to other states. Legislatures in Idaho and Nevada, as well as Utah and Alaska, have passed resolutions or statutes which seek to legitimize RS 2477 claims. The Sahara Club boasts that it has published its form for asserting RS 2477 claims in over 2 million off-road magazines. The club's newsletter exhorts: "If only 10 percent of the readers get off their asses and file an RS 2477 assertion, it would literally bring the BLM to a grinding halt."

Alarmed by the threat, the U.S. Congress in 1992 asked the Interior Department to prepare a report on the status and potential impact of RS 2477 rights-of-way. Last June, after completing the report, Interior concluded that it was necessary to develop regulations and standards for determining which routes qualify as legitimate RS 2477 rights-of-way, and to clarify who controls their future.

Release of the regulations will undoubtedly generate "sky is falling" rhetoric. Citizens should not be misled by "Chicken Little" cries that Interior's new regulations will eliminate public access to federal lands and take away "historic rights."

The truth is that RS 2477 rights-of-way are not needed to maintain or obtain access across federal lands. Indeed, even if RS 2477 rights-of-way were eliminated, parties could file for and obtain rights-of-way for legitimate access needs under a variety of contemporary federal land management laws, including FLPMA and the Alaska Native Interests and Lands and Conservation Act. In Utah, for example, the BLM has approved more than 700 rights-of-way under FLPMA since it was enacted in 1976, including 17 for a single county (Uintah County) last year. These statutes, however, recognize the danger to our public lands from unrestricted rights-of-way and set up requirements designed to avoid or minimize environmental degradation.

Cries about closing public access mask other agendas. Some claimants want to resuscitate RS 2477 because they view it as a device to evade the environmental protection and public participation requirements of contemporary right-of-way laws. Many also see it as a way to defeat wilderness proposals.

The claim that "historic rights" will be taken away is another myth since few legitimate rights exist. RS 2477 granted a right-of-way only if specific basic requirements were met: constructing a public highway across public lands not reserved for other public purposes.

None of these tests are met by the vast majority of routes now being claimed as "pre-existing rights-of-way" under RS 2477. Most are not highways. Many were not constructed, especially to highway standards. In fact, many are unimproved tracks or routes formed by the occasional passage of vehicles. Dirt tracks meandering up a canyon bottom or across a mesa to a cliff edge do not constitute a "highway" under any reasonable interpretation.

The Congressional Research Service recently investigated the historical meaning and usage of the word "highway," and concluded that it meant a "significant or principal road" that received "regular and continuous" public use, was constructed by some sort of "mechanical means," and connected cities, towns, or other significant places.

In short, the debate over RS 2477 is not about whether public access should be maintained across federal lands. Access is and should be preserved under contemporary right-of-way laws. The real question is: Should an antiquated law be manipulated so that roads and highways can be bulldozed across our parks and public lands without consideration of environmental values or opportunities for public review?

If voices of reason are heard, the Interior Department's pending regulations will bring RS 2477 into the 20th century.

Terri Martin is the Rocky Mountain Regional Director for the National Parks and Conservation Association.

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