Federal Judge Refuses to Let County Cut Highways in Roadless Section of Death Valley National Park

Areas of Death Valley National Park in which Inyo County wanted to build highways. Earth Justice Graphic. Click here for larger detail.

A desire by county officials in California to cut roads in roadless areas of Death Valley National Park has been doused by a federal judge, who says the officials missed their opportunity years ago.

Back in October of 2006 Inyo County filed a lawsuit claiming it was within its rights to maintain the rights-of-way for the two stretches of "highway" that the county contends have been recognized as county highways for decades. Under the county's plan, the roads would run through Greenwater Canyon, Greenwater Valley, and Last Chance Canyon. Those areas were designated as wilderness when Death Valley was given national park status in 1994. Today the areas are home to desert tortoise, desert bighorn sheep and other park wildlife. There are also rock art sites in the areas.

County officials had hoped to take control of the routes using a repealed, 19th-century right-of-way law known as R.S. 2477. They sought rights-of-way in hopes of tearing down National Park Service barriers and initially asked for the right to build two-lane highways in roadless desert canyons and valleys.

But in ruling on August 8, U.S. District Judge Anthony Ishii held that the county waited too long to assert its claims to the three roads within the national park because they were included in wilderness study areas by the federal Bureau of Land Management in 1979. He agreed with arguments by conservation groups and the National Park Service that the county’s claims were barred because it had failed to file its lawsuit within the 12-year statute of limitations. The court thus dismissed the county’s claims to all of one route and most of the other two routes.

"I think overall it's a very, very good ruling," said Ted Zukoski, an attorney for Earthjustice, which represented the conservation groups that intervened on behalf of the National Park Service: the Sierra Club, The Wilderness Society, Friends of the Inyo, California Wilderness Coalition, Center for Biological Diversity, and the National Parks Conservation Association.

“When Congress made Death Valley a national park in 1994, it set aside these areas for all Americans to enjoy as quiet, natural, and free from damaging dirt bikes, ATVs, and other off-road vehicles. The court’s ruling will help ensure that Congress’s promise to the American people will be kept,” said Mr. Zukoski.

Areas that will be preserved

Greenwater Canyon, on the east side of the national park, is rugged, narrow, and deep, carving a twisting course through volcanic rock. Forty-two prehistoric sites containing more than 300 important petroglyphs are found in the canyon, which also provides habitat for desert bighorn sheep and desert tortoise.

Before the canyon was included in the park in 1994, land managers recognized its importance by naming it an “Area of Critical Environmental Concern” to protect “prehistoric occupation sites still important to Native Americans.” One of Inyo County’s claimed “highways” would have cut through the canyon for about 10 miles.

The court’s decision threw out the county’s claim to all of the routes inside the canyon.

Greenwater Valley, to the south of Greenwater Canyon, is covered with lush, dense vegetation, including creosote, sagebrush, bunch grasses, seasonal wildflowers, and cactus. The area includes important habitat for the Black Mountain bighorn sheep herd and desert tortoise.

When Inyo County illegally bulldozed a three-mile route across an abandoned jeep track in 2004, the Park Service revegetated both ends of the route to restore the area’s natural values.

The court’s decision threw out Inyo County’s claim to all of the route.

Last Chance Canyon, at the northern end of Death Valley, is a remote and scenic area that is home to cougar, deer, coyote, and badger. Inyo County claimed a 10-mile “highway” runs up the canyon, which narrows into a boulder-choked, tree-strewn gulch. At the head of this gully, the county claims their “highway” ascends a nearly vertical 50- to 200-foot ridge of unstable rock. Cutting a two-lane highway across this rugged terrain would permanently and significantly scar the landscape. The court’s decision threw out Inyo County’s claim to all but the northern half-mile of the route.

All three of these areas were inventoried and found to be “roadless” in 1979, and were designated as wilderness when Death Valley National Park was created in 1994.

Death Valley Ruling.pdf142.53 KB



You said of Inyo Co.'s action:

County officials had hoped to take control of the routes using a repealed, 19th-century right-of-way law known as R.S. 2477.

The BLM R.S. 2477 Rights of Way page summarizes:

Section 8 of the Mining Act of 1866 provided: “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.” The statute was self enacting; rights being established by “construction” of a “highway” on unreserved public lands, without any form of acknowledgement or action by the Federal government. This section of the statute was later re-codified as Revised Statute 2477. R.S. 2477 was repealed by FLPMA on October 21, 1976, with a savings provision for rights established prior. (emph. added)

That appears to mean that although new claims after 1976 cannot be established, those rights-of-way that were established before 1976 are protected under the statute.

If Inyo County did once have some sort of now-neglected rough road-bed carved across routes in Death Valley, and/or they show on various old maps, etc., then they probably have the legal traction to push their claim on up the appeals-chain, if they want to.

A cornerstone of the R.S. 2477 situation, is that the historic & ongoing ANCSA and ANILCA Lands Claims Settlement process in Alaska have incorporated R.S. 2477-based resolutions into major legal precedent. These were not squabbles between dirt-bike riders and preservationists, but a matter of Congressional Record.

A glance at the Google search returns for r.s. 2477 show that those of an environmentalist/preservationist orientation are inclined to portray the Statute as a meaningless curio which their opposition is attempting to misuse. Old usage-routes, though, are legally covered, and court cases are begin won.

R.S. 2477 can lead to quandaries. Private landowners, some of them for generations, have been challenged to allow recreational riders to use long-neglected routes on their land.

There is a popular movement (largely environmentalist & allies-driven) to 'convert' abandoned railroad right-of-way into magnificent public trail systems. If I am not mistaken (correct me if I am) these are in some cases based on R.S. 2477.

Inyo County may have damaged their claim, by bulldozing part of the routes they wanted, without seeing the claim through the courts first.

Mr. Clayton makes some correct observations, but I disagree on a few points.

Some extremist counties across the West view R.S. 2477 not as a shield to protect legitimate transportation needs but as a sword to defeat protections for wilderness, wildlife, and water quality on federal lands. For example, Kane County, Utah, ripped out federal closure signs and placed its own signs opening routes to off-road vehicles in the Grand Staircase-Escalante National Monument. They did this on routes federal land managers had closed to protect the Monument from damage from ORVs. And the County had never bothered to prove that the routes met the standards for R.S. 2477 rights-of-way. See http://www.highway-robbery.com/lands/utah13.htm

Several of Inyo County's claims involve routes that the County never maintained, as far as anyone can tell. One of the routes identified in the County's complaint drops over a huge cliff. See http://www.highway-robbery.com/lands/California3.htm . In short, these alleged "highways" aren't the life-blood of travel or commerce in the County.

Further, while it's true that the Federal Land Policy Management Act (FLPMA) did not vacate rights-of-way that were created up until 1976, counties must still prove their claims in federal court if they want to challenge federal ownership. Congress provided only one way to do that: through the federal Quiet Title Act. And that law has a 12-year statute of limitations. That means that if federal land managers have put the County on notice more than 12-years that they didn't think a highway existed - for example, by protecting the area for its wilderness character - then the county can't waltz in later and say "that's our highway." So, the recent decision is right that Inyo County waited too long.

Ted Z.,

Sorry - I did not mean to leave the impression that my aim was to defend Inyo County or weigh the merits of their claims. If Inyo is anything like my home Clallam County here on the Olympic Peninsula, they have approval ratings that make Congress feel well-loved! And they earned them! ;-)

Really, my aim was to address the depiction of R.S. 2477 itself as bogus, which is fairly common but inaccurate & misleading. The statute still applies to rights-of-way from before 1976. It was repealed in '76, for new claims, but pre-76 ROW is explicitly 'grandfathered' under it.

Ted Z. said:

Several of Inyo County's claims involve routes that the County never maintained, as far as anyone can tell. (emph. added)

The provisions of R.S. 2477 never required the ROW be "maintained", only that it be "constructed"1. It is quite common - 'the rule', actually - that successful R.S. 2477 claims have been neglected & overgrown for long periods. ROW does not 'go away' because it is not maintained.

While several high-profile disputes have revolved around the claims, and I daresay even the antics of specific Counties, R.S. 2477 is not aimed at, restricted to or mainly utilized by Counties. Anybody - from Grandma Pettipoo to Native Tribes to the State of Alaska to the full spectrum of NGOs from hunters & dirt-bikers to tree-huggers & animal-rights radicals can & have successfully used R.S. 2477.

1. Bearing in mind the law was written in 1866, the meaning of "constructed" and "highway" were a good deal more modest than today. 'Trails' routinely qualify under R.S. 2477, today, and the construction involved consisted mainly in moving logs & boulders aside and hacking back bushes & limbs.

Rs 2477 is a restriction on an 1851 law setting apart all roads and trails as public and 60 feet wide that
the title to the those set asides were removed from federal control leaving the underlying title in we the
people of the united states these roads and trails were to be recorded and protect by the counties