Long a bone of contention between state, local and federal authorities when it comes to public lands access is a nearly 150-year-old law initially passed to help advance westward expansion. Now Interior Secretary Ken Salazar hopes a pilot program in Utah can generate a solution to R.S. 2477 controversies.
R.S. 2477 was passed by Congress in 1866 to allow the construction of roads across federal lands that were not already reserved for public use. In 1976 Congress repealed the law, but not before providing that any valid R.S. 2477 route existing at the time of the repeal could continue in use. Since then, there have been many debates and many lawsuits over what constituted a valid R.S. 2477 route. These days, some states, counties, and off-road groups have claimed that washes, two-tracks, even cow paths and hiking trails are "highways" that they are entitled to open to motorized travel, according to those who oppose the granting of these rights.
From time to time R.S. 2477 claims arise across the Western landscape. And in recent years there have been controversial court decisions that denied some of these rights. One example surfaced in 2007 when a federal judge tossed out a lawsuit seeking to justify off-road vehicle use in Surprise Canyon near the western edge of Death Valley National Park.
In 2009 a federal appellate court prevented Kane County, Utah, officials from placing signs in Glen Canyon National Recreation Area to designate ORV travel routes until the validity of R.S. 2477 routes could be adjudicated. More to the point, the judges held that the county's actions violated the supremacy clause of the U.S. Constitution. That clause provides that federal law supersedes local or state laws involving federal issues where the two conflict.
Currently, a federal judge is mulling a much-anticipated decision on whether Salt Creek Wash in Canyonlands National Park can be justifiably determined to be a road under R.S. 2477 guidelines.
How such cases are settled goes a long way to how public lands -- including national parks -- can be accessed via off-road vehicle. For example, in Bryce Canyon National Park the Kane County (Utah) Commission has claimed that portions of the park's Under-the-Rim backcountry trail and the Riggs Spring hiking trail are open to dirt bikes and other off-road vehicles courtesy of the statute. And in Zion National Park, Washington County, Utah, officials have stated that five miles of the East Rim foot and horse trail is a "constructed highway" that should be open to motorized use.
Against this backdrop, Interior officials have agreed to work with the State of Utah, county officials, and other stakeholders in a pilot negotiation project to resolve R.S. 2477 claims.
“R.S. 2477 claims have long been a source of contention in the West, but with the right approach, openness on all sides, and Governor Herbert’s leadership, we have a good chance in Utah to establish a model for consensus-building and problem solving,” Interior Secretary Salazar said in a prepared statement. “If we can set the right parameters for the talks, I believe that a pilot project with Iron County, Utah, would be a good first step that can demonstrate how consensus is attainable on specific claims—to the benefit of all."
When he made that statement last week, the secretary also announced that he has issued a memo to Interior agencies clarifying that a road claims policy issued in 2006 by the Bush administration is not binding on the federal government and created unnecessary confusion in the government’s old road claims process. In his memo, Secretary Salazar said the department should be able to make all appropriate arguments under applicable law to defend the United States’ interests in R.S. 2477 claims litigation.
The department's decision to try to negotiate some R.S. 2477 claims under a pilot program was welcomed by conservation groups.
"We have long sought partners among the state and counties who would work with us to find a solution to the R.S. 2477 problem, and support a dialog on this important issue. A process which recognizes legitimate roads while protecting scenic and wild country at the same time is a possible step in the right direction," said Heidi McIntosh, associate director of the Southern Utah Wilderness Alliance. "We look forward to working with the County to reach a solution like that where everyone wins."
At the National Parks Conservation Association, Legislative Director Kristen Brengel said her group looks "forward to participating in an open, cooperative public process that seeks to settle conflicts over road claims. Zion National Park, Dinosaur National Monument, and Cedar Breaks National Monument are among the national park units where R.S. 2477 claims have been asserted in the past. We welcome an opportunity to work with federal, state and local officials to bring some closure to this issue.”
And at The Wilderness Society, policy advisor Anne Merwin said she hoped the program could uncover "common ground with our local and federal partners on this long-controversial issue. Working together to provide for legitimate transportation needs while also helping ensure the protection of some of the state’s wildest and most beautiful places is a value we all share.”