BACKGROUND ON THE RS 2477 ISSUE
In 1866 the federal government adopted a law granting transportation rights-of-way, which are recognized as property right, for roads and trails across the vast public lands of the western territories. These rights-of-way were automatically granted when a transportation route was established for public travel under state law. Congress enacted this law, known as Revised Statutes 2477 (RS 2477) , to ensure free public use of the most feasible and efficient transportation routes as these territories and states were being settled during the westward expansion.
Today, these property rights-of-way are held by state and county governments for the benefit of the public. Some of them have been developed into today’s network of interstate and state highways and county road systems. Many are the relatively unimproved roads which are so vital to providing access to millions of acres of our lands and resources.
Regardless of their present level of development, however, these rights-of-way continue to serve the same vital function: access. This access to and across public lands is absolutely vital to recreation, search and rescue, law enforcement, emergency services, the utilization of natural resources and school trust lands, protecting access to private property, and the ability of the federal agencies to efficiently and effectively manage these lands.
IF THESE REGULATIONS ARE IMPLEMENTED, THOUSANDS OF MILES OF VITAL GRAVELED ROADS, UNIMPROVED ROADS, 4 WHEEL DRIVE ROADS AND PUBLIC ACCESS TRAILS ARE LIKELY TO BE CLOSED. THAT WOULD PREVENT YOU AND ALL OTHER AMERICANS FROM ACCESSING TENS OF MILLIONS OF ACRES OF YOUR LAND!
Instead of the guaranteed access Congress originally intended, the extent of your access to our lands will be determined by the federal bureaucracy, acting without checks and balances. But even worse, the regulations will make it far easier than it is now for environmental special interest groups to block by appeals whatever limited access roads that the bureaucrats have not defeated.
Interior has clearly overstepped its authority in proposing these regulations. Attorneys and others familiar with the history and application of RS 2477 and the body of case law which has developed as a result agree that there is only one way Interior could have proposed such regulations. Those opposed to free and open access to and across the federal public lands first had to decide they were going to eliminate as many of these property rights-of- way as they could by whatever means they could find.
The Department is proposing unreasonable definitions and has ignored or misrepresented legislative history, the intent of Congress and an established body of case law. Interior has created ponderous, unworkable procedures and deadlines to deal with the evidence that valid property rights-of-way exist. They knowingly over-reach the authority granted them under the laws governing them. And even more fundamentally, they have recommended procedures which violate basic constitutional guarantees.
The truth is that the validity of these property rights has been upheld in numerous court cases stretching back over a century. That case law has already resolved the central questions about the scope of these rights and established the mechanism for quickly settling most questions which might arise in the future.
In addition, as recently as 1976, when Congress changed the method by which such rights- of-way could be obtained in the future, IT SPECIFICALLY RECOGNIZED AND “GRANDFATHERED” ALL VALID RS 2477 RIGHTS-OF-WAY THAT HAD BEEN GRANTED UP TO THAT TIME. Congress also made it clear that these rights could not be taken without the consent of the owner.
As recently as 1988, then-Secretary of the Interior Donald Hodel issued instructions which fully recognized the RS 2477 property right. His instructions reflected the findings of the courts over the preceding decades and include reasonable and balanced directions and guidelines for dealing with these property rights. Some of the precedent setting appeals court decisions have been handed down within the past couple of years. The proposed regulations either ignore these decisions or misinterpret them.
Interestingly, even within the Clinton administration, there has been resistance to the efforts of the extremists within Interior. The administration’s original intent was for the Interior Department Agencies and the U.S. Forest Service, which is part of the Department of Agriculture, to jointly issue these draft 2477 regulations. These two departments administer the vast majority of our public lands. Often, the land one administers borders land administered by the other.
However, the Forest Service, to its credit, reportedly disagreed with the approach advocated by the Interior, branding it as too extreme. Ultimately, the Forest Service refused to participate or join Interior in issuing these proposed regulations!
As a result, the Clinton Administration is proposing one set of new regulations for our lands managed by Interior agencies. At the same time, other, often inconsistent, regulations and procedures may be applied to 2477 property rights-of-way on adjacent federal land which is managed by other federal agencies such as the Forest Service, Department of Defense or the Department of Energy. All supposedly based on the same original law, the same intent of Congress, the same body of case law and the same history! How is that for “reinventing government?”
WHAT CAN EXPLAIN THIS?
It is no secret that most of the political appointees and many of the bureaucrats in the Interior Department have come from or been influenced by environmental special interests focused on limiting access and use of your public lands. Many of them would like to scrap the multiple use of laws which currently require the Bureau of Land Management and the Forest Service to manage our public lands and forests for the benefit of all our citizens, providing opportunities for recreation, hunting, utilization of vital natural resources such as timber, forage, oil, and natural gas, protection of wildlife habitat and so on. Bruce Babbitt, for example, has made no secret of the fact that he wants “to replace multiple-use management” with a new, more restrictive concept because “multiple-use planning has, for the most part, been a failure.”
These special interest advocates in and out of government now realize that they are not likely to get a majority in Congress to go along with most of their goals, but they have not given up. Since they temporarily control the Interior and other departments and agencies, they are trying to implement as much of their agenda as we will let them get away with through regulations like this one. They have clearly decided to try to re-write through regulations those laws they disagree with or find “inconvenient.”
SOME SPECIFIC EXAMPLES OF WHAT IS WRONG WITH THESE REGULATIONS
These regulations raise literally dozens of serious concerns. However, the following points should illustrate the scope of the problems.
1. THESE REGULATIONS VIOLATE CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS
They would, for example, ignore the fact that a property right has already been granted. They would illegally “take”–without any discussion of compensation–the property rights- of-way of the states and counties and reduce these governmental units from the status of owners to “claimants.” They would then establish Interior agencies as the forum to judge the validity of these “claims” which they would require to be filed with them. The Interior Department, however, also announces that these regulations in and of themselves, are the federal government’s assertion that these rights do not exist! Yet they would have us accept them as prosecutor, judge and jury and assume that a fair hearing will result!
To take another example, Interior tries to make its own law by declaring that any property right-of-way owner who does not file a claim with them within two years is “voluntarily” relinquishing their property right. These attempts as well as many others in the regulations violate the Constitution’s Fifth Amendment property guarantees as well as those of due process and separation of powers.
2. THESE REGULATIONS WILL HAVE A SUBSTANTIAL NEGATIVE IMPACT ON THE ECONOMY, EMPLOYMENT AND OUR INTERNATIONAL COMPETITIVENESS
By reducing or eliminating access to the public lands, they would drastically reduce opportunities to utilize the public’s natural resources. That, in turn, will directly affect our nation’s energy independence, our mineral independence, our balance of trade deficit, our competitive position in the global economy, employment levels and economic growth not only in the public lands states of the West, but for the nation as a whole. Interior is trying to run these proposed regulations through the governmental process as simple “housekeeping” regulations. They are not! They have far-reaching and serious implications which have not even been considered.
3. THESE REGULATIONS WILL GREATLY REDUCE YOUR RECREATIONAL ACCESS TO YOUR PUBLIC LANDS
If you hike, camp, hunt, fish, rock hound, 4WD, ride ATV’s, snowmobiles, motorcycles or horses, or enjoy any other form of recreation which is dependent on roads you will be directly affected. Many areas are already closed to off-road use, but at least you can get into millions of acres of back country on existing 2477 road rights-of-way. In many ways, both technical and procedural, these regulations are designed to eliminate these roads and keep them from reopening.
For example, the states and counties are given only two years to file all the data to substantiate their property rights, but the federal government has no deadline by which they have to agree to recognize them. The definition of what constitutes a road under these regulations is so restrictive that thousands of existing roads automatically will be eliminated regardless of what proof of ownership might be provided. Road requests to the BLM under other laws to reopen roads closed under these regulations will require full NEPA compliance which will cost millions of dollars at a time when total agency budgets are shrinking. Even if the agency wanted to reopen a road, opponents can delay it with an appeal.
4. THEY ARE FURTHER EVIDENCE THAT THIS ADMINISTRATION HAS DECLARED WAR ON THE WEST!
We include only a few from among dozens of examples. The courts–and the Interior Department itself until this administration took over–have recognized the important role of state law in determining such things as when a road was created and the scope of the right- of-way. Under these regulations, however, state law would have no bearing except in those cases where a provision of state law might be even more constraining than their proposed regulations. In other words they want it both ways!
To take another example, the regulations adopt an indefensible and unrealistic definition of what Congress envisioned a road would be when it granted the right-of-way. Under the Interior Department’s proposed definition, the Oregon Trail, the Government Trail, the Mormon Trail, the Santa Fe trail and hundreds of others which were the interstate highways of their day would not even qualify as rights-of-way! A final example: previously signed agreements between state and local governments and Interior agencies which officially recognized specific 2477 rights-of-way would be nullified by these regulations. Those governmental entities would be reduced to the status of “claimants” and have to start all over again.
5. THE REGULATIONS SHOW A CONTEMPT FOR THE RULE OF LAW AND THE DOCTRINE OF JUDICIAL INTERPRETATION
They are further evidence of what has become a very disturbing trend by Interior to attempt to subvert the law through regulation as well as to try to usurp legislative authority. Equally disturbing, they also illustrate an unwillingness to be bound by judicial interpretation of the law. There exists a substantial body of case law on 2477 rights-of-way in the 9th and 10th as well as other circuits of the U.S. Courts of Appeals. These regulations either ignore much of this case law or intentionally misrepresent it. In fact, high ranking Interior officials as well as other bureaucrats have made it clear on several occasions that they do not consider themselves bound by these court decisions on 2477 property rights-of-way!
The recognition that the courts are the legitimate arbiters of disputes under the law stretches back to the early days of the Republic.. This rule is an essential element of the separation of powers which serves as a check and balance within the federal government. Over the years, this doctrine has been a fundamental protection of our freedoms. This attack on the very foundations of our system of government demands the most vigorous opposition of all citizens, regardless of the other specific concerns raised by these regulations!
6. ADOPTION OF THESE REGULATIONS WITHOUT FIRST DOING AT LEAST A PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT VIOLATES FEDERAL LAW
It is widely estimated that adoption of these regulations will result in the loss of between 50% and 75% of the public access rights now available in many counties and states. As an inevitable result, all the present activities of hunters, fishermen, 4WD enthusiasts, campers, rock hounds and all other users of the public lands will be concentrated in the areas still open to public access. Consequently, the environmental impacts of these activities will increase. The likely result? Court injunctions issued at the instigation of extremist groups further restricting these activities in order to “save the environment.”
The National Environmental Policy Act (NEPA) requires writing an Environmental Impact Statement (EIS) whenever the federal government makes a policy decision significantly affecting the environment. Even a programmatic statement is probably inadequate, however, since the applicable state laws differ somewhat. There is already precedent which would probably require the government to prepare an EIS for each significant road that they want to contest.
7. ADOPTION OF THESE REGULATIONS WOULD RESULT IN THE WASTE OF MILLIONS OF DOLLARS IN UNNECESSARY LITIGATION
They constitute such a substantial reversal of existing precedent that adopting them would guarantee widespread litigation. The result will be not only the waste of federal tax dollars squandered trying to defend untenable government positions, but also the waste of tax revenues of states and counties which would have no option but to go to court to defend their property rights.
An illustration of what would happen is the experience of Utah’s Garfield County. This county, with a population of less than 4,000 people, has already spent over a half million dollars just to protect its property rights on only one of the hundreds of 2477 rights-of-way it owns. Clearly the county could not afford to defend all of its property rights. As a result public access will inevitably be lost. At a time of massive federal deficits and serious revenue shortages at the state and local level, this waste of tax dollars cannot be justified.
8. THESE REGULATIONS VIOLATE PRESIDENT CLINTON’S OWN ORDERS TO THE BUREAUCRACY
In September of l993 President Clinton signed Executive Order 12866 which sets out the guidelines and standards for cabinet departments and agencies to follow in drafting regulations. It requires them to consider a broad range of factors, including a detailed explanation of the need for the regulations, the cost of enforcement, the impact on the economy, and the possibilities of cooperative rulemaking. It also requires that a series of cost/benefit analyses be done for significant regulations, which, certainly, this one qualified as.
If Interior had complied with the President’s order, many of the problems with these regulations would have been identified. By masquerading these regulations as a simple “housekeeping” action, Interior is attempting to circumvent the letter–much less the spirit- -of the President’s order…
IT HAS BEEN CORRECTLY OBSERVED THAT THE PRICE OF OUR FREEDOMS IS ETERNAL VIGILANCE. THIS IS BOTH THE RIGHT TIME AND AN EXCELLENT ARENA IN WHICH TO CONFRONT THOSE WHO WOULD TAKE OUR PROPERTY RIGHTS AND UNDERMINE OUR CONSTITUTION.
LET US JOIN TOGETHER IN THAT GOOD FIGHT!