Does the accompanying picture portray a road, or a creek?
That question is central to a controversial decision Interior Secretary Gale Norton made this week over the handling of "R.S. 2477 routes," which in many cases are barely visible threads of passage that cross national parks, national forests, national wildlife refuges, and U.S. Bureau of Land Management lands. In some cases they're long-forgotten Jeep two-tracks, in others they're cattle paths time slowly is erasing. Some would even argue that hiking trails qualify for the designation.
In a "secretarial order" issued Wednesday, Secretary Norton gave federal land managers throughout the West the power to decide which R.S. 2477 routes can be regularly maintained or even improved.
The R.S. 2477 designation dates back to 1866, when "Revised Statute 2477" granted rights of way for public use across federal lands. In 1976, however, Congress repealed the law, but not before providing that any valid R.S. 2477 route existing at the time of the repeal could continue in use.
While The Wilderness Society and other groups recognize that some R.S. 2477 claims are valid, they worry that Secretary Norton's action could "recognize unfounded highway claims, such as those on cattle paths, streambeds, and little-used or long-abandoned Jeep tracks that have little connection to legitimate transportation needs."
"This secretive scheme is typical of how Secretary Norton has made decisions over the last five years, even though these decisions have devastating impacts on the protection afforded to national parks, wildlife refuges, and other lands," says Kristen Brengel of The Wilderness Society.
In reaching her determination, Secretary Norton cited the long, controversial history of how R.S. 2477 claims have been handled, noting that Interior Secretary Don Hodel in 1988 directed the department and its various agencies to "develop internal procedures for administratively recognizing those highways," and that Secretary Bruce Babbitt in 1997 directed that "R.S. 2477 determinations be postponed unless the claimant demonstrated an immediate and compelling need for a determination."
More recently, the Southern Utah Wilderness Alliance sued the BLM over its handling of R.S. 2477 claims, arguing that the grading and improvements to 16 routes on BLM lands in southern Utah constituted trespass. In ruling on the case late last year, the 10th U.S. Circuit Court of Appeals held, among other things, that "(1) the burden of proving the existence of an R.S. 2477 right-of-way lies on the claimant; (2) continuous use over a specified period of time would establish an R.S. 2477 right-of-way in most Western states; (3) mechanical construction generally is not required; (4) whether a route connected identifiable destinations is relevant, but not determinative, to whether it is a valid R.S. 2477 right-of-way..."
Under that ruling, Secretary Norton said, the Interior Department "cannot create a single national standard governing the validity of all R.S. 2477 claims, but instead must look to the particular laws of each state in which a claimed right-of-way is situated." And that's where the concern of environmentalists and conservation groups spikes.
The problem Secretary Norton's interpretation of the court ruling creates is best visualized by looking at the above photo of Salt Creek in Canyonlands National Park. Where many see only an intermittent stream, others see a four-wheel-drive route. In fact, back in 2000 the state of Utah submitted to the Interior Department a map highlighting 100,000 miles of R.S. 2477 routes that it thought could be validated as bona fide roads. Among those 100,000 miles was every hiking trail in Zion National Park and routes through every designated wilderness area in the state.
Indeed, in issuing her guidelines for handling R.S. 2477 claims, Secretary Norton notes that the BLM can, "in appropriate circumstances ... grant rights of way for, among other things, 'roads, trails, highways...or other means of transportation."
A few paragraphs down she defines a "public highway as being, in general, 'a definitive route or way that is freely open for all to use...It need not necessarily be open to vehicular traffic.'"
Now, in announcing her decision, Secretary Norton pointed out that, "Our new guidelines respect the obligation that Interior has to protect federal lands and environmentally sensitive areas, particularly parks, refuges and congressionally designated wilderness areas...under the guidelines announced today, a dirt road will remain a dirt road and a two-track road will remain a two-track road unless there is a permitting process and environmental analysis."
At the same time, the secretary's directive allows that if someone wants to upgrade an existing R.S. 2477 route, the federal land manager in charge can "make an informal, non-binding determination of whether the R.S. 2477 claim is valid and whether the proposed improvements are reasonable and necessary in light of the traditional uses that established the claimed right of way."
Some conservationists worry about how the secretary's directive will be carried through to on-the-ground management. At the Southern Utah Wilderness Alliance, conservation director Heidi McIntosh told me that the BLM in Utah just simply doesn't have the manpower, "or the political will," to oversee the problems flowing from the Pandora's Box the Interior secretary has opened.
"I think we're going to see more non-binding determinations (of R.S. 2477 claims), I think we're going to see more road maintenance agreements, which are kind of a backdoor way of granting counties the right to go out and grade and maintain roads, even including two-tracks," Ms. McIntosh said. "I think this is a big red flag, it's the way that it opens the door to the grading and maintenance of tracks that even the BLM didn't find to be roads when they did their wilderness inventory."
She took particular note of how Secretary Norton's guidelines define "public highways."
"That's where one of the biggest red flags really pops up, because here you're talking about the hiking trails," Ms. McIntosh said. "And the term 'way,' while it may look relatively meaningless or innocuous to the average reader, is actually a term the BLM uses to describe routes that are, in the words of the Wilderness Act, 'substantially unnoticeable and do not disqualify areas for wilderness designation.' So there are a lot of 'ways' that exist in the wilderness study areas that now can be validated as R.S. 2477" routes.
Denny Huffman, the former superintendent of Dinosaur National Monument that spreads across northeastern Utah and northwestern Colorado, believes Secretary Norton should exempt the national park system from her order.
"Secretary Norton must consider, as she has before, taking national parks out of any policy that could force road construction under R.S. 2477 across these iconic landscapes. Additionally, if the BLM adopts a lenient approach to highway claims on its lands, it may directly threaten neighboring Park Service units that are traversed by many of the same claims," Mr. Huffman said. "A relaxed approach by BLM to a claim can point a loaded gun at the neighboring park that disagrees with a highway claim."
In the National Park Conservation Association's California Desert office, manager Howard Gross fears what the directive could mean for the Mojave National Preserve.
"There's over 2,500 miles of claims that San Bernardino County is interested in," he told me. "And over 700 of which are in wilderness areas that were designated by the California Desert Protection Act. The thing is, if someone is going to claim that there's a lack of access in the Mojave National Preserve, they don't know the preserve very well. There are over 2,200 miles of routes that are open to four-wheel-drive vehicles. For backcountry exploring the Mojave National Preserve is an amazing place to visit."
Furthermore, Mr. Gross added, "It would be disastrous for the preserve if the county could claim that every route that went to an old mine site that hasn't been used for decades, a cow trail, a wash bottom where a vehicle has run in the past, it would be disastrous if areas like that were able to be claimed as routes that the county could maintain and keep open for vehicles to use."
According to the NPCA, which calls the R.S. 2477 statute "a 'pave-the-parks' giveaway that will endanger precious public lands that were meant to be permanently protected," there are about 17 million acres in 68 parks that could be affected by R.S.2477 claims.
It's interesting, to say the least, that Secretary Norton made her determination without any public comment on the proposal, in light of how controversial it is. For comparison, during the ongoing battles over personal watercraft in national park units, the superintendent at Cape Lookout National Seashore in 2001 closed its waters to personal watercraft. However, Interior officials later overruled him, saying, in part, that the controversial nature of the issue required that public hearings be held on the matter. Certainly, the issue of R.S. 2477 is far more controversial than PWCs at Cape Lookout, which counted only 207 of the watercraft in the seashore's waters in 2001.
At SUWA, Ms. McIntosh was dumbfounded that the Interior secretary didn't publicly vet her plan.
"She should have, but she didn't. And there's no legal requirement, actually," Ms. McIntosh said. "But given the sweeping effects of this and the way it really has the potential to turn land protection upside down in the West, is something that the public should have been involved with. And Congress has even said in the past that the R.S. 2477 resolution is something that should happen in the context of public debate."
And what's likely to happen now? Most likely no resolution without additional litigation.
"I think what we're going to see is probably the development of both some more specific guidelines throughout the West of how to implement this more general directive, and then we're going to see a lot of R.S. 2477 giveaways, and there are going to be even more fights about this issue, and I think even more litigation," said Ms. McIntosh. "It's not going to solve the issue. I think she's really just throwing some gasoline onto the fire."