Federal Rule Could Allow More Roads on Public Lands

By Cat Lazaroff

WASHINGTON, DC, January 7, 2003 (ENS) - Dirt paths, old wagon trails and even dry washes on public lands could be paved into highways under a new Bush administration policy making it easier for states and local governments to claim rights of way. The controversial rule change drew fire from a host of conservation groups and at least one prominent member of Congress.

The Department of Interior, which published the rules in the Federal Register on Monday, said the regulations will make it easier to resolve dozens of controversies over land ownership across the nation, and avoid expensive lawsuits brought against the federal government by local and state entities seeking access to their lands.


Conservation groups charge that Utah counties quickly turned a variety of dirt tracks into roads during the 1990s to avoid restrictions on roadbuilding in the new Grand Staircase-Escalante National Monument. (Photo by Jerry Sintz, courtesy BLM)
"Title issues arising from a variety of issues may now be resolved by means of issuing a disclaimer of interest," wrote the Bureau of Land Management, the Interior Department agency responsible for the new regulations.

But conservationists, members of Congress, and some officials at the National Park Service claim that the new rule has the potential to devastate wilderness throughout the western United States and Alaska and national parks, including Grand Canyon, Joshua Tree, Denali, Wrangell-St. Elias, Rocky Mountain, and Mojave National Preserve.

"This allows special interests to punch highways into our most precious parks and refuges along long abandoned mining trails, cattle paths and stream beds," said Heidi McIntosh of the Southern Utah Wilderness Alliance. "This action will have a lasting and devastating impact on public lands."

The new regulation is based on a Civil War era regulation known as Revised Statute 2477, which was designed to encourage western settlement. The 1866 law allows states to claim rights of way and build highways across federal lands, as long as the lands were "not specifically reserved for public uses."

Under the revised regulation, any entity claiming an interest in a right of way - not just the "present owner of record" of the property - may seek a disclaimer of interest or right of way from the federal government. The rule also gives states unlimited time to file their claims, rather than imposing a 12 year deadline for such claims.


Utah is seeking permission to build many miles of new road across Grand Staircase-Escalante National Monument, which would disqualify much of the area proposed as wilderness from the protection this designation would afford. (Photo by Jerry Sintz, courtesy BLM)
Congress repealed RS 2477 in 1976, but local politicians and the mining industry sought to resurrect the law in the mid-1980s to preclude wilderness designation and open roadless areas to development.

The Interior Department did not examine the potential environmental impacts of the regulation, arguing that the rulemaking was "categorically excluded" from review under the National Environmental Policy Act (NEPA) because it is "procedural in nature, therefore its environmental effect is too broad, speculative or conjectural to analyze."

"The rule is not a significant regulatory action," the BLM states. "Today's rule does not change the basic process for issuing recordable disclaimers and will not have additional environmental impact, will better conform to existing statutes, and better explains how the disclaimer process relates to other agencies."

"They have developed the rule in secrecy and are giving the public no opportunity to appeal right of way and disclaimer decisions," argued the Wilderness Society's Dave Alberswerth, "so in reality court action will be the only way to challenge decisions that degrade our parks and wilderness."

According to a 1993 National Park Service memo, RS 2477 claims could potentially affect up to 17 million acres of national park lands. According to the memo, the impacts "could be devastating. [They] could cross many miles of undisturbed fish and wildlife habitat, historical and archeological resources, and sensitive wildlands. [They] would undoubtedly derogate most unit values and seriously impact the ability of the NPS to manage the units for the purposes for which they were established."


Alaska has identified 24 routes in Denali National Park that it claims as rights of way. (Photo by Ken Ringer, courtesy The Wilderness Society)
"The new regulations are a substantial and serious threat to national parks," said Craig Obey, vice-president for government affairs at the National Parks Conservation Association. "They are also a major give away of public lands. With 90 percent of public comments on the regulations opposed to the administration plan, this is clearly a sell out to exploiters who want to pave, rather than protect, the parks."

Senator Joe Lieberman, a Connecticut Democrat, also condemned the new regulation as an effort to weaken environmental protections for national parks.

"They appear to be sacrificing our national parks and other public lands to the altar of development, despite the President's campaign promises to protect those precious places," Lieberman said when the proposed regulations were first unveiled last month.

The BLM says that it will consult with other federal agencies, such as the National Park Service or the U.S. Forest Service, regarding right of way claims involving lands managed by those agencies. "BLM will not issue a disclaimer of interest over the valid objections of the surface managing agency having jurisdiction over the affected lands," the agency wrote.

However, no definition of "valid objections" is offered.


In September 1998, floods carried away part of the road bed of Cottonwood Road, a dirt road in Utah's Grand Staircase-Escalante National Monument. (Photo by Mike Salamacha, courtesy BLM)
Studies have found that roads and vehicle use lead to fragmentation of wildlife habitat, soil erosion, and to the increased use of off road vehicles in adjacent undeveloped areas.

Several counties in Montana, Idaho and Oregon have asserted claims to every road on the national forest lands within the county boundaries. Alaska, Utah and Colorado have also asserted claims to thousands of miles of dirt roads, trails and wagon tracks, many of which are in national parks and wilderness areas.

In southern Utah's Grand Staircase-Escalante National Monument, environmental groups charge that several counties defied the area's protected status in 1996 and scraped new roads out of obscure trails. If the state's RS 2477 claims in the bed of the Paria River are validated, much of the area now within the boundaries of the Paria-Hackberry Wilderness Study Area, and included in the America's Redrock Wilderness Act, would be disqualified from wilderness protection.

The state of Alaska has identified 24 routes in Denali National Park and Preserve that it contends may be valid state rights of way under RS2477. Most of the claims are in the northern quarter of the park and cover about 350 miles within the ranges of the Toklat and Savage wolf packs and countless caribou that move along the glacier fed Toklat River.

Almost all of the proposed claims are on designated wilderness lands or lands proposed for wilderness designation.


San Bernardino County has surveyed more than 2,500 miles of trails and paths within the boundaries of the Mojave National Preserve, to which the county could lay claim. The preserve hosts rare species including these endangered desert bighorn sheep. (Photo by D. Schramm, courtesy National Park Service)

In California, an aggressive effort by San Bernardino County to survey specific routes and map claims - including wagon roads, trails, and horse and footpaths - has resulted in 2,567 miles of road claims in the Mojave National Preserve and another 2,419 miles elsewhere in the California desert.

In commenting on the disclaimer rule, "The San Bernardino County Department of Public Works in California criticized any potential cost recovery that the rulemaking may impose because the number of claims the county might potentially file could create a financial burden on San Bernardino County."

"While the Bush administration says this rule cuts red tape, what it really does is cut a maze of unnecessary roads through much of what little wilderness remains, while cutting the American people out of decisions to safeguard lands they own," said Mike Matz, executive director of the Campaign for America's Wilderness. "The rule only makes it easier for special interests to carve up what few wild places are left."

To view the Federal Register notice regarding the new regulations, visit: http://www.blm.gov/nhp/news/regulatory/2003f.html#1860