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 In 1976, it was repealed by the Federal Land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 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 claims
under the Mining Law of 1872 to be recorded or else be deemed
abandoned.
The courts upheld that approach. If it had
been applied to claims under RS 2477, that 1866 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 considering 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, Democratic congressman from Boulder,
Colorado, is a contributor to Writers on the Range, a service of
High Country News (hcn.org).
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