Until recently, RS 2477 rights-of-way were not a particularly controversial area of public land management. Throughout most of the first century during which these rights-of-way were granted and managed, federal land managers and local governments generally had a very cooperative working relationship.
That began to change in the early l980’s when several special interest groups decided to use an effort to maintain and update the Burr Trail Road in southern Utah as a test case to try to limit local governments’ ability to exercise their property rights granted under RS 2477. These interest groups lost on virtually every point they contested.
Having failed in the courts, the environmental activists had to find a new avenue to try to achieve their goals. Several things made trying to push legislation through Congress a bleak alternative. For one thing, western members of both parties were alert to any threat to public access, and several were in key positions to prevent anything from harming these 2477 rights. For another, the clear intent of Congress in 1976 when it passed the Federal Land Policy and Management Act (FLPMA) was to specifically protect all existing 2477 rights. Trying to reverse this clear intent of Congress would be a very difficult task
When the Clinton Administration took office the special interest groups decided to try to achieve through administrative actions the goals they could not achieve through the courts or Congress.
To understand the draft regulations the Interior Department released in August 1994, it is essential to understand this context. They were written for one purpose only, to try to limit to the maximum extent the public’s access to the public lands. Given the long history of previous administrative actions, court decisions, the clear intent of Congress and the clear language of the 2477 statute itself creating regulations to achieve this goal was a virtually impossible task. Interior’s only option to do it was to draft regulations that ignore precedent, twist definitions, misinterpret the law, and ultimately violate several provisions of the Constitution. As one analyst noted, the draft regulations the Interior Department circulated were more like what one would expect of a “banana republic” dictatorship than the executive branch of the world’s oldest constitutional democracy. Further evidence of the regulations’ flaws, the Forest Service, housed in the Agriculture Department, not Interior, refused to accept the draft regulations, reportedly because they felt they were so seriously deficient.
As soon as they were issued, the regulations produced a firestorm of criticism. Because Interior was so brazen in its effort, so extreme, and showed such contempt for property rights, the rule of the law, and due process, the draft regulations served as further compelling proof for many Westerners that the Clinton Administration was indeed waging a “War on the West.” Their release just a few months before the l994 Congressional elections was an important reason why Democratic incumbents and challengers across the West fared so dismally in the Congressional elections that year. Consequently, they were also a factor in the GOP takeover of both the House and Senate.
That takeover of Congress by the GOP, in turn, had a number of impacts on the RS 2477 issue. At the request of many members of the new majority, the Interior extended the comment period on the draft regulations, for a full year, an unusually long period of time. Several western GOP members forced senior Interior officials to admit the draft regulations were seriously flawed. Congress held hearings on the 2477 issue and passed two measures prohibiting the Interior from spending any money to further develop the draft regulations. Tough legislation was introduced to prevent the Interior’s attempt at a wholesale revision of established law and to preserve the status quo. As the 104th Congress entered its final months, compromise legislation was progressing which would prohibit the Interior Department from adopting any new regulations affecting 2477 rights without Congress first approving them.
Because the efforts of the Interior Department were so overreaching and so sloppily done, they triggered scathing criticism by some of the best legal minds in the nation. The resulting body of their comments represents perhaps the most comprehensive, well-researched, and well-documented defense of the public’s rights of access to the public’s land which has yet been done. The irony (which the Interior Department is increasingly realizing) is that issuing the draft regulations has not only made many more people now aware of the importance of their 2477 rights and stiffened their resolve to protect them, but also provided a rich resource of analysis and legal research which is being used to protect those rights.
Some of the best of these are included on this website.
These are extensive, detailed comments which not only provide a devastating critique of the draft regulations in considerable technical detail but cite several unique Alaskan examples which underscore why 2477 has consistently been interpreted in light of state law and local circumstances.
Seattle University School of Law professor David Engdahl is one of the foremost experts in Constitutional Law to focus on natural resources-related issues. His critique is directed at the specifics of the regulations as well as the legal and ethical implications, which he labels “troubling.” The faults he identifies in the draft regulations are, he concludes, “flagrant.”
The Pacific Legal Foundation is a public interest law firm with an extensive and successful track record in support of balanced resource policy and property rights. Their comments provide an excellent overall critique of the regulations as well as some unique specific insights.
The rural counties of Utah undoubtedly have more direct experience with 2477-related issues than the counties in any other state. These comments are probably the most extensive and wide-ranging critique of the draft regulations which were filed.
This action alert was issued shortly after the draft regulations were released in August of 1994 by the Coalition To Protect Public Access Rights. It provides a shorter and less technical overview of the problems with the draft regulations as well as a brief discussion of why protecting 2477 rights of way is so essential to all public land users.
Also of interest in understanding the draft regulations…
As noted, one of the reasons the draft regulations were so controversial was that they represented a radical departure in many areas from long-established Interior Department precedent, prior administrative interpretations, and the rulings in a number of court decisions that were in such close agreement with one another that no one seriously expected that the draft regulations could so completely ignore them. In this context, two documents on this site give a very useful perspective additional perspective on the draft regulations. One is policy memorandum issued in 1988 by then-Interior Secretary Donald Hodel which reflects a Department policy very different from the one which Interior attempted to promulgate only six years later. The other is a BLM memorandum issued in 1990 expanding on the Hodel memo and providing additional detail on how that agency was to deal with RS 2477 issues.