DELIVERED MARCH 14,1966 BEFORE THE SENATE ENERGY AND NATURAL RESOURCES COMMITTEE BY MS. BARBARA HJELLE, SPECIAL COUNSEL TO WASHINGTON AND GARFIELD (UTAH) COUNTIES
NOTE: Barbara Hjelle is one of the most experienced and knowledgeable attorneys in the country on RS 2477 issues. In her testimony, she not only gives a clear explanation of what S. 1425 will do, but she refutes the misinformation which is being circulated about it by access opponents. Following her presentation to the Committee, Chairman Frank Murkowski requested that she respond in more detail to a number of questions. Her responses are also available on this website.
These comments set forth my understanding regarding the conceptual framework of the Revised Statutes 2477 (R.S. 2477) Rights-of-way Settlement Act (the “Act”). My comments are based on actual experience dealing with R.S. 2477 issues. As an attorney, I have represented Southern Utah counties on R.S. 2477 issues over the past 10 years. Among other matters, I have been involved in litigation over Garfield County’s Boulder-to-Bullfrog Road, commonly known as the “Burr Trail” Road, since 1987. This litigation has been a focal point in the R.S. 2477 debate. In these and many other situations I have observed, it has become apparent that local governments are being seriously impacted in their efforts to carry out normal governmental functions when dealing with public highways which cross federally owned lands.
I have observed the problems which have arisen in recent years as federal land managing agencies have attempted to assert greater and greater control over the actions of the counties who have traditionally built, maintained, and improved these rights-of-way. Thousands of public dollars have been wasted in complying with the demands of federal employees who have no expertise in road management or construction. For example, on the Boulder-to-Bullfrog Road, Garfield County was forced to move a box culvert, not once, but twice, costing tens of thousands of dollars, because the federal agency in charge continually changed its mind regarding where it thought the culvert should go. No objective standards were used to make these decisions. The ultimate location turned out to be aesthetically distasteful, reduced the quality of the road, and provided no environmental or other benefits to the public lands. Like many situations involving R.S. 2477 decisions, the County’s decisions were constrained by the knowledge that, no matter how unreasonable the requests of the agency, if the County were to stand up for its rights, it would be faced with costly litigation in a federal court where the deck is likely to be stacked against the County and in favor of the administrative agency.
I have observed a whole group of federal employees, none of whom were engineers, debate the propriety of work on the Boulder-to-Bullfrog Road based on potential impacts on just a few inches of soil, even though the area contained no sensitive plants, animals, or other resources. The cost to the taxpayer, not to mention the interference with legitimate activities of local governments, is uncalled for. But because of hostility to these rights-of-way and unjustified distrust of the local governments who manage them, these costs are escalating, with no concomitant benefit to anyone.
Recently, Garfield County has once again run up against a hostile Department of Interior on the Boulder-to-Bullfrog Road where it runs through Capitol Reef National Park. Keep in mind that the Road was in existence in this location long before the Park was created, having been built and maintained by the hard work and perseverance of the people of Garfield County over many decades. Americans have access to see this Park because of these efforts by Garfield County’s residents. Keep in, also, that the legislation creating the Park protects this valid pre-existing right. Nevertheless, the DOI has asserted that Garfield County must obtain its approval for each and every inch of soil that is touched, even if the activity is located within areas previously maintained by the County. In this instance, Garfield County was performing maintenance work on the Road within Capitol Reef National Park typical of work commonly performed by the County throughout its jurisdiction. The maintenance was critically necessary because the Road within the Park had deteriorated over time due to delays caused, in part, by pressure from federal agencies. Finally, the County had moved forward with its work to repair deteriorating wash crossings and drainage as well as a disintegrating road surface, conditions which were unsafe for the traveling public. DOI has decided that the County’s actions taken to correct critical safety problems were unacceptable.
DOI does not approach its differences with the County with any respect for or acknowledgment of the R.S. 2477 right-of-way, even though it has repeatedly recognized that the right-of-way is valid. Instead, the Department sends federal employees from Washington, D.C., to sit across the table from the Garfield County commissioners and tell them, in essence, that they have no rights other than what the DOI decides to let them exercise and to demand that the County, on the spot, concede in writing its right to any meaningful management authority over its right-of-way or face an aggressive action through the courts.
Now, Garfield County contains about 93% federally-owned lands. The private taxable land base in the County is about 2% of all the lands within its jurisdiction. And because Garfield County contains lands of unparalleled beauty, it receives many visitors from all over the world, most coming to see National Parks, Recreation Areas, and other federally owned lands. With almost no budget, Garfield County provides services to all of these visitors. And, rest assured, the federal agencies who manage these lands are not shy about expecting Garfield County to provide services to them. When people get in trouble on federal lands, Garfield County provides the search and rescue. Recently, the County budget has been decimated by the necessity of pursuing criminal prosecutions involving actions that took place almost solely on federally-managed lands. In all of these cases, the County has no ability to control its risk; that ability resides with the federal government. But it pays the price, out of its meager budget, for federal decisions regarding land management. So when Garfield County is faced with a threat of litigation from the DOI, it is a significant problem. How will the County pay to defend its rights, which are also the rights of every American to have free and safe access to the public lands which its R.S. 2477 rights-of-way provide? This kind of intimidation is very powerful and it is this kind of intimidation which the legislation before you is designed to limit.
As these examples show, the ability of local governments to maintain their public road across federal lands is becoming increasingly impaired because of the hostility of federal land managing agencies. The policies of these federal agencies do not give more than superficial consideration to the importance of providing safety to the traveling public which has always been the touchstone of R.S. 2477 rights under the common law that has been historically recognized in Utah and in most other Western states as well. Without clear action by Congress to defend the rule of law, federal agencies will continue to prevent needed maintenance and construction projects.
If Congress does not act, these rights-of-way will be effectively revoked. Interior’s proposed regulations refuse to honor the most basic tenets of R.S. 2477 precedent. The Interior’s current actions refuse to allow state and local governments to keep these roads safe. Counties simply do not have the financial resources to respond to this broad-scale attack on these vested property rights. If Congress does not take measures to protect these rights-of-way, counties will be forced to abandon the exercise of their basic sovereign responsibilities with regard to rights-of-way within their jurisdictions. If state and local governments are prohibited from providing this essential service, who will? I question whether the federal government is truly prepared to take on the added costs and burdens of maintaining hundreds of rights-of-way in rural areas which have been traditionally managed by local governments.
You may hear a far different story from others who speak to you today, a story which suggests that the state and local governments who now ask you to pass legislation to protect their traditional sovereign rights and duties are willing to run roughshod over the federal lands, disregarding federal resource protection and sensitive environmental considerations. I have not encountered a situation where those accusations are borne out by a fair investigation of the facts, taking into account the historically honored scope of these rights. Before you vote to deny these historical rights, granted by Congress, I would encourage you to visit these areas, talk to the commissioners and other public officials who are struggling with this issue. I believe that you will agree that the proposed legislation is necessary to ensure the continued reasonable application of traditional principles of law necessary for an orderly society.
I have given you just a slice of the myriad concerns which call for action by Congress to protect vested R.S. 2477 rights-of-way. Each of these examples, if presented in more detail, would amplify the problem of excessive federal agency interference with the exercise of valid existing rights. Now I would like to address the background information regarding R.S. 2477, followed by a fairly detailed analysis of the Act.
R.S. 2477 was enacted as section 8 of the Act of July 26, 1866, 14 Stat. 253, formerly section 2477 of the Revised Statutes of the United States. R.S. 2477 states, in its entirety:
Sec. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.
From 1866 until its repeal, R.S. 2477 granted rights-of-way “effective upon the construction or establishing of highways, in accordance with the State laws.” 43 C.F.R. 244.55 (1939). No application to, or approval by, the federal government was necessary to accept the grant. See, 43 C.F.R. 2822.1-1 (1979); 43 C.F.R. 244.55 (1939). As the regulations cited in this paragraph make clear, these principles were codified by the Department of Interior in its published regulations for almost 40 years prior to the repeal of R.S. 2477. Regulations promulgated after the repeal likewise honored these principles, which were honored by the federal land managing agencies until this administration began its effort to rewrite the law of R.S. 2477.
Virtually all of the existing highways and roads in the West were originally established as R.S. 2477 rights-of-way. Much of the transportation system in the West is still based on R.S. 2477 rights. Although no new R.S. 2477 right-of-way can now be created, existing R.S. 2477 roads continue to make possible a variety of activities, such as the delivery of goods to market, transportation between communities, tourism and recreational opportunities, provision of access routes for emergency vehicles, mail delivery, law enforcement and access to lands for business and industrial purposes. Congress authorized these rights-of-way because of necessity. That necessity has not diminished over time.
I am submitting to you photographs of a few roads in Garfield County that rely upon R.S. 2477 as authority for their construction, use, and maintenance. While these photographs show paved roads, R.S. 2477 rights-of-way also include more primitive access routes. In the rural West, these access routes often operate just like the toll roads and paved streets in the more populated areas of this country for the myriad of activities routinely carried out in a free society that honors the constitutionally protected fundamental right to travel.
The prospective offer of R.S. 2477 was repealed in 1976 by the Federal Lands Policy and Management Act (“FLPMA”), Pub. L. No. 94-579, 90 Stat. 2793, 43 U.S.C. 1701 et seq. However, FLPMA specifically protected R.S. 2477 rights-of-way in existence on the date of FLPMA’s passage. See, FLPMA 509(a) (“Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted or permitted.”), 701(a) (“Nothing in this Act, or in any amendments made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act.”), and 701(h) (“All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”), codified respectively at 43 U.S.C. 1769(a) and 1701, Savings Provisions (a) and (h). Such pre-existing rights-of-way are property rights vested in the holder. These provisions made ample sense, since once the R.S. 2477 rights had vested, they were no longer part of the federal domain and, undoubtedly, Congress did not desire to pay to regain ownership of these easements.
Interior has suggested that invalidation of R.S. 2477 rights is insignificant since FLPMA rights-of-way can be obtained in their place. This statement indicates the Interior’s recognition that the regulation will lead to invalidation of R.S. 2477 rights-of-way. Furthermore, this line of reasoning illustrates the Interior’s apparent misunderstanding regarding the nature of R.S. 2477 rights as vested property rights. Trading an R.S. 2477 right-of-way for an FLPMA right-of-way would be a great “deal” for the federal land manager, but it would be a losing proposition for the holder of the right. That is why Congress explicitly forbade the Interior from forcing such an exchange. (See, 43 U.S.C. 1769.) First, FLPMA rights-of-way are issued according to the discretion of the federal land manager; it might or might not be issued. (In the past 16 years, according to the Bureau of Land Management, only 36 miles of road right-of-way have been issued on public land in Washington County, Utah, which contains 1,550,000 acres, of which about 70% is federally owned. Washington County holds title to approximately 800 R.S. 2477 rights-of-way. Given the difficulties associated with obtaining FLPMA rights-of-way, it would take decades to regain even a portion of these public roads through FLPMA procedures.) But R.S. 2477 rights-of-way are already vested in the holder, are capable of being utilized immediately, and are subject to constitutional protections. Second, permissible uses of FLPMA rights-of-way may, in some cases, be more limited than are uses of R.S. 2477 rights-of-way, because these rights pre-exist subsequent withdrawals. (The right to perform safety improvements on an existing road adjacent to a wilderness study area or traversing a national park is of critical importance to the public which relies upon these rights-of-way for safe travel across the federal domain.) Third, FLPMA permits are more in the nature of a license; they are not perpetual as are R.S. 2477 rights-of-way. And, lastly, FLPMA rights-of-way must be purchased, whereas R.S. 2477 rights-of-way are already owned.
The question of protection of vested rights-of-way in the Western states was carefully addressed in Congress in discussions about the repeal of R.S. 2477. The proponents of FLPMA in the Senate assured the western Senators, on the record, that there was no intent in FLPMA to abrogate these rights, nor did Congress intend to limit the application of state law in interpreting the grant. See 120 Cong. Rec. 22280, 22283-4 (1974). That position was honored until recently when the current administration proposed new regulations that would, if effective, reverse decades of precedent to defeat established rights-of-way.
II. PURPOSE OF THIS ACT
The Act will resolve uncertainty regarding existing R.S. 2477 property rights fairly, taking into account the legal and historical realities which apply to these rights-of-way. The Act does not alter existing rights or create new property rights. Rather, the Act provides a method for administrative recognition for rights-of-way that were properly established prior to the repeal of R.S. 2477. The Act does not purport to diminish valid existing property rights which have been honored by Congress until now, nor does it supplant a party’s ability to pursue a quiet title action in the courts of the United States or, for that matter, any other action regarding R.S. 2477 rights-of-way. It does, however, clarify the proper role of federal administrative agencies in dealing with these vested property rights.
The Act comports with existing legal precedent. And it honors interpretations of the grant made by the government during the grant’s operative life. Based on my experience with R.S. 2477, I believe that the Act provides a fair and efficient manner to administratively recognize rights-of-way that have been accepted pursuant to R.S. 2477. Other proposals, including specifically the draft regulations currently under consideration by the Department of Interior, do not fairly account for long-standing administrative policies and court precedent, nor do they accurately address significant burdens on the federal taxpayer (not to mention local tax burdens) from elaborate schemes which would impose significant demands on the agencies and the holders of these rights-of-way. This Act provides a proper balance between the interests of the administrative agencies in understanding the lands they manage and the vested legal rights of local governments.
III. SECTION-BY-SECTION ANALYSIS
A. SECTION 1
This section requires no explanation.
B. SECTION 2
Subsection 2(a) establishes that federal agencies are to be notified of the existence of R.S. 2477 rights-of-way across lands managed by such agencies. Keep in mind that neither Congress nor any administrative agency has ever established a notice requirement in the past. Therefore, this legislation creates a new burden on right-of-way holders. Nevertheless, if the notice provision is properly limited, it can serve the legitimate interests of land management agencies without placing an impermissible burden on the right-of-way holder.
Notice for a particular right-of-way will be filed with the agency that possesses jurisdiction over the servient estate across which the right-of-way crosses. By way of example, notice for rights-of-way that traverse lands managed by the Bureau of Land Management or within the boundaries of a National Park will be sent to the Secretary of the Interior. Notice involving National Forest lands will be sent to the Secretary of Agriculture.
Notice may be filed by governmental entities, namely a state or a subdivision thereunder. This allows the governmental entities, as representatives of the public, to claim rights-of-way used by the public. In the event that local governmental entities do not claim such rights-of-way, the Act alternatively provides that notice may be filed by a private party that relies upon an R.S. 2477 right-of-way to access real property in which the party has an interest. This provision allows private parties to participate in the administrative settlement provisions of this Act only to the degree that the party has a specific property interest relating to the particular right-of-way at issue. Because these rights-of-way form a significant element in access and commerce in the public lands states, it is important that those who would be impacted by the loss of access have the opportunity to protect their interests.
The notice would apprise the federal land manager of the location of the right-of-way by showing the right-of-way on a map. Unlike the administration’s proposed regulations, this provision does not impose the onerous burden of a survey, which would place impossible demands on the budgets of rural counties. In addition to the map, the notice would include a verbal description of the route and its endpoints. The notice would also include a statement of the width of the right-of-way. Finally, the state and local governmental entities possessing general jurisdiction over lands in the area would be identified, since they are most likely to be the holders of the rights-of-way on behalf of the public.
While the notice provisions may appear to be simple, the burden on those giving notice will be substantial. Because the statute, in order to accomplish its goal, must address each and every R.S. 2477 right-of-way, no matter how well established, notice must be provided for hundreds of R.S. 2477 rights-of-way by all states and counties containing federally owned lands. In other words, each public lands state and its political subdivisions is being asked to comply with this provision. However burdensome this provision may be, it constitutes only a fraction of the burden which would be imposed by the administration’s proposed regulations.
In many cases, these rights-of-way have been established and used for over one hundred years, but, in part because of the long-standing federal regulations cited above, no documentation has been maintained. Most of the transportation infrastructure in many rural counties is made up of R.S. 2477 rights-of-way which may never have been mapped in the fashion now requested. Furthermore, determinations regarding scope may never have been systematically undertaken for vast numbers of rights-of-way, placing additional burdens on those filing notice. Thus, the information required in the notice will place significant burdens on those choosing to give notice.
These notice provisions accomplish an important initial step of defining for the federal land managers the universe of rights-of-way that will be settled pursuant to the Act. The notice enables the land managers to locate all of the rights-of-way at issue. The only other method by which the land manager can be required to recognize the existence of a valid R.S. 2477 right-of-way is through court action.
The five-year time period is apparently intended to allow time to inventory existing rights-of-way and compile the data required by the provisions of this section. Five years may not be enough in some instances, given the requirements of the documentation set forth by the Act, coupled with the former federal policy discouraging documentation and the fact that many of these roads are situated in the remote stretches of the West. Keeping in mind the financial and staffing constraints of many local governmental entities, especially rural governments, five years would be the shortest possible deadline. Governmental entities possessing resources that would allow for the more expeditious submission of information are allowed to do so under the Act.
Section 2(b)(1) specifies that, from the time notice is filed, the land manager has two years to notify the party submitting such notice whether the Secretary recognizes the right-of-way or objects to the validity of any portion of the right-of-way. Two years is a reasonable time period, in light of the fact that the federal land manager is in possession of relevant maps and expertise regarding the lands managed. In most cases, the federal employees who have been managing the lands will be aware of the existence of the R.S. 2477 rights-of-way listed in the notices. In Utah, local federal land managers have indicated that they are well aware of the validity of the R.S. 2477 rights-of-way held by counties. Thus, there is not much dispute at the local level.
To determine whether the grant was accepted, the land manager is directed to look to the laws of the state where the right-of-way is located. Judicial and administrative precedent makes clear that state law determines whether the grant was accepted. See e.g., Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988)(“State law has defined R.S. 2477 grants since the statute’s inception.”); Central Pac. R. Co. v. Alameda County, 52 S.Ct. 225 (1932)(the road was established “under and in accordance with state law.”); Homer D. Meeds, 26 IBLA 292 (1976)(“[I]n order that a road become a public highway, [it is necessary] that it be established in accordance with the law of the state in which it is located.”). I am submitting to you in writing a small sampling of the numerous federal and state decisions which have confirmed the central role of state law in interpreting R.S. 2477 and would request that they be attached to my comments in the record. These requirements are consistent with the regulations which have applied to R.S. 2477:
No application should be filed under R.S. 2477, as no action on the part of the Government is necessary. (43 C.F.R. 2822.1-1 (1972 & 74) & 43 C.F.R. 244.58(a) (1963); see also 43 C.F.R. 244.55 (1939).) . . . Grants of rights-of-way referred to in the preceding section become effective upon the construction or establishment of highways, in accordance with the State laws, over public lands, not reserved for public uses. (43 C.F.R. 2822.2-1 (1972 & 74) & 43 C.F.R. 244.58(a) (1963); see also 43 C.F.R. 244.55 (1939).)
It would be unjust to now choose to dishonor those regulations, as the Department of Interior now attempts to do.
Section 2(b)(2) provides that the Secretary shall specify the factual and legal basis for an objection to a right-of-way. Because federal land managers are generally familiar with the rights-of-way which traverse the lands they manage and because the main repository of information regarding many rights-of-way will be the records of the land managing agencies, most rights-of-way should be addressed with minimal effort on the part of the agency. In many instances, specification of the grounds for the Secretary’s objection should serve to expedite the resolution process. If the agency possesses information unknown to the party filing notice which implicates validity of the right-of-way, it would always be possible to withdraw that right-of-way from the notice. Alternatively, the party filing notice might spot ways to readily resolve the Secretary’s concerns, in which case the objection could be withdrawn. In any event, because the current administration has exhibited unbridled hostility to these rights, in the absence of such a requirement, this administration would likely object to virtually every right-of-way included in the notice, in the hope that the burdens imposed by having to respond to such objections would preclude effective protection of the rights.
Section 2(b)(3) provides that a right-of-way will be deemed valid as claimed if the Secretary fails to object to notice of a right-of-way within two years. This provision is necessary to ensure that the settlement process moves along. Without such a provision, the purpose of the Act would be defeated. The Secretary would be allowed to indefinitely delay resolution of rights-of-way. Given the current policies of the Department of Interior refusing to acknowledge any R.S. 2477 right-of-way, regardless of prior recognition or other undisputed bases for its validity, the closure provided by this provision is essential.
C. SECTION 3
Section 3 addresses judicial review of objections to a right-of-way. With respect to any right-of-way objected to by the Secretary, the burden for quieting title rests with the Secretary.
Section 3(a) gives the Secretary two years to bring an action to the quiet title after objecting to the right-of-way. As section 3(c) specifies, failure to bring such action within two years results in a legal determination that the right-of-way is valid as claimed. As explained above, the imposition of a time period is necessary to move the process along and ensure that the goals of the Act are accomplished. The two-year time period is ample time to bring a suit to quiet title. The factual and legal basis for such a suit should have been assembled previously when objecting to the right-of-way. Thus, in practical effect, the Secretary has four years to prepare a quiet title action from the time notice is first submitted.
Section 3(b) provides that the Secretary bears the burden of proof on all issues regarding objection to a right-of-way. This is proper where the Secretary is acting to change the status quo, namely eliminating rights-of-way used by the American public. Also, the federal land manager will possess most of the documents that would be germane to validity. Furthermore, because the federal government specifically discouraged the creation of records regarding the acceptance of the grant, it would now be unfair to place the burden of proof on parties who relied on such regulations.
D. SECTION 4
Section 4 requires the Secretary to honor these valid existing rights. Validity must be appropriately recorded on land records and maps. Proper recordation will prevent many of the problems of uncertainty that have necessitated this Act.
Section 4 also specifies that the Secretary is not to promulgate regulations that would contravene the purposes of this Act. For example, the Act would supersede efforts by the Department of Interior to rewrite this precedent in an effort to eliminate valid existing rights which have been vested in the American public.
E. SECTION 5
Section 5(a) specifies that the administrative remedies provided by this Act do not affect existing judicial quiet title remedies. This Act merely provides an alternative manner of quieting title to R.S. 2477 rights-of-way.
Section 5(b) ratifies consistent and long-standing judicial precedent and the prior regulations specifying that state law controls R.S. 2477.
Section 5(c) specifies that the National Environmental Policy Act does not apply to actions taken pursuant to this Act. The Act does not constitute action by any party. All relevant actions were taken prior to the repeal of R.S. 2477. The Act merely establishes a method for recognizing the legal significance of past actions and thus cannot result in action significantly affecting the quality of the human environment.
IV. WHAT THE ACT DOES NOT DO
Access opponents combat R.S. 2477 issues with an onslaught of misinformation. To aid this committee’s interpretation of this Act, I would like to address some of the common misinformation sound bites.
Access opponents attempt to minimize the continued importance of these rights-of-way by disparaging Congress’s original Act. They describe R.S. 2477 in terms such as archaic, cryptic, outdated, and moldy. True, the Act was created over a century ago. But if age creates grounds to revoke rights, the legal underpinnings of our society are in grave danger. If anything, the age of the grant should suggest deference to an established tenet of our society.
As Congress envisioned, R.S. 2477 rights-of-way played a prominent role in the settlement of the West. As the United States Supreme Court noted:
These roads, in the fullest sense of the words, were necessary aides to the development and disposition of the public lands. . . . They facilitated communication between settlements already made, and encouraged the making of new ones; increased the demand for additional lands, and enhanced their value. Governmental concurrence in and assent to the establishment of these roads are so apparent, and their maintenance so clearly in furtherance of the general policies of the United States, that the moral obligation to protect them against destruction and impairment as a result of subsequent grants follows as a rational consequence.Central Pac. Ry. Co. v. Alameda County, 284 U.S. 463, 473 (1932).
The West grew up around this “arcane, cryptic, out-dated, moldy” grant. These rights-of-way made it possible for one settlement to communicate and trade with another. They made it possible for citizens to legally traverse the broad expanse of public lands in order to interact with the rest of the forming nation. It is no wonder, then, that courts have commented that revocation of R.S. 2477 rights would make Congress’s original act “a delusion and a cruel and empty vision.” United States v. 9,947.71 Acres of Land, 220 F. Supp. 328, 331 (D. Nev. 1963).
A. THE ACT WILL NOT IMPERIL NATIONAL PARKS, NATIVE AMERICAN LANDS, AND PRIVATE PROPERTY.
First off, the Act applies only to federally owned lands. Therefore, the status of rights-of-way across privately owned lands is not affected by this act. In any event, where rights-of-way vested prior to patenting of lands into private ownership, recognition of those established rights cannot constitute a taking under the constitution.
Secondly, valid R.S. 2477 rights-of-way must have been established prior to the withdrawal of the public lands for public uses. Therefore, regarding National Parks and Wilderness Areas, any valid 2477 right-of-way would have been created and vested prior to the withdrawal of the Park or Wilderness Area. The subsequent designation would have been established subject to the prior existing property rights.
Continued recognition of these property rights will not lead to environmental calamity. The Act merely confirms the status quo. Furthermore, right-of-way holders are bound to the extent the statutes governing the protection of cultural sites, wetlands, endangered plants and animals, and other environmental resources apply to them. The assertion that recognition of R.S. 2477 rights-of-way will defeat the protections of current environmental laws is misleading.
These rights-of-way have been in existence since at least 1976. No wholesale construction has occurred in the past two decades. The state and local governments that manage these rights-of-way generally cannot afford to do more than address pressing safety concerns, conduct normal maintenance activities, and initiate improvements where increased traffic so demands.
Although the holder of an R.S. 2477 right-of-way possesses a property right that is protected under the rule of law, the federal government, as the holder of the underlying estate, also has rights. The alarmist threats of those who would like to see these vested rights wiped out are not based upon a realistic assessment of the interplay between the federal owner of the lands and the holder of the R.S. 2477 right-of-way. This legislation would merely protect an appropriate balance of rights and duties between the United States and state and local governments.
B. THE ACT WILL NOT ALLOW “NEW” R.S. 2477 RIGHTS-OF-WAY TO BE CREATED.
Critics of the Act repeatedly allege that the Act will resurrect, revive, and reopen R.S. 2477 and allow new rights-of-way to be established. This is absolutely misleading and false. R.S. 2477 rights-of-way had to be established prior to the withdrawal of the public lands or passage of FLPMA. If the evidence shows that this did not occur, the right-of-way would not be valid.
C. THE ACT DOES NOT PLACE AN UNFAIR OR UNREALISTIC BURDEN ON THE UNITED STATES.
The burdens created by this Act certainly do not rest entirely on the United States. The notice provisions require a great deal of work on the part of the right-of-way holder, as noted above. Nevertheless, the burdens imposed would be only a fraction of those proposed by the administration’s proposed regulations.
The burden of creating a record, where none was previously required, however, should not be placed upon the state and local governments that hold these rights-of-way. Because the federal government specifically discouraged the creation of records regarding the acceptance of the grant, it would now be unfair to place the burden of proof on parties who relied on such regulations. If the federal land managing agency desires to defeat a public access right claimed by a state or its political subdivision, the agency should bear the burden of showing that the right-of-way is invalid. These situations should not arise very often. In the past, most R.S. 2477 right-of-way issues have been resolved through communication and agreement. Under the scheme currently proposed by the administration, based upon hostility to the rights, no such resolution would be possible.
Interior asserts in its disclosures to the Office of Management and Budget that only 420 “respondents” would claim R.S. 2477 rights-of-way during the two-year period that the process would be open. Since each county is treated as one of the 420 respondents in Interior’s submittal to OMB, giving 24 hours to each county, Interior’s allocation allows less than one and a half minutes per road for the 10 counties in southern Utah to compile and file all of the information outlined in the regulation. Interior allocated 8 hours per county for federal review, which sorts out to less than 30 seconds per road for these 10 counties. There can be no question that the Interior failed to give any realistic consideration to the true burden of the requirements imposed by these regulations.
Also, the federal land manager will possess most of the documents that would be germane to validity. These agencies are currently compiling computerized records which would include information relevant to right-of-way status.
D. THE ACT WOULD NOT ALLOW STATE LAWS THAT WERE CREATED AFTER THE REPEAL OF FLPMA TO DETERMINE RIGHTS-OF-WAY.
State laws which codify court decisions in effect prior to the repeal of R.S. 2477 or which are otherwise consistent with such pre-existing law, would not be invalid, but no state is authorized to create new law applicable to R.S. 2477 rights-of-way any more than the Department of Interior is entitled to do so through its regulatory scheme.
The Act establishes a system for honoring the commitments made by Congress to the American public, recognizing valid rights-of-way created by R.S. 2477 and providing a proper basis for land management actions. The Act honors precedent established by numerous judicial and administrative interpretations of R.S. 2477. The Act supersedes efforts by the Department of Interior to rewrite this precedent in an effort to eliminate valid existing rights which have been vested in the American public.
The citizens of rural areas and the local governments who represent them have created these public access routes over time, often through great labor and hardship under challenging conditions. These rights-of-way exist because they are important to the people who created them. Current policies and actions of the Department of Interior have created unnecessary burdens on the exercise of these rights which do not truly benefit the American people, the environment, or the federal agency in question. These policies have resulted in excessive intermeddling by federal agents in the day-to-day management of public rights-of-way in the rural West. These public rights-of-way should be managed by the state and local governments that have traditionally exercised jurisdiction over them. This Act would maintain the appropriate status of these R.S. 2477 rights-of-way to the benefit of the American people.