Environmental groups are going “wild”
over the Interior Department’s recent decisions to recognize
Western road claims and chuck out the Clinton administration’s
wilderness study policy. Before getting into the angry rhetoric,
however, a bit of history is in order.
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West was over, and it was duly repealed by FLPMA.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.
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