While Utah and Alaska have been in the forefront of local attempts to
assert broad rights-of-way on roads that lie within the boundaries of
federal lands, two cases in California appear to be the next front in
the ongoing skirmish over the effects of a Civil War-era law.
In the latest action, a federal judge ruled last week that a group of
environmental advocates must be allowed to intervene in a case brought
against the National Park Service by California's Inyo County. The
county's suit is seeking "quiet title" to four roads within federal
lands near Death Valley National Park.
In another case, San Bernardino County officials are similarly
seeking access and control over 14 roads and spurs, covering about 240
miles in the Mojave National Preserve. These cases join more publicized
actions by Utah officials to claim control over roads and highways in
various federal lands (Land Letter, June 7).
Enacted as part of the Mining Act of 1866, now known as
Revised Statute 2477, this was a relatively simple measure that
afforded public rights-of-way through public lands that were not
specifically reserved for public uses. Its purpose was to encourage the
local construction of roads and highways as the nation was undergoing
tremendous growth and westward expansion. Though R.S. 2477 was repealed
by Congress in 1976, there was left behind a grandfathered provision
covering rights-of-way on roads that counties or other jurisdictions
could prove were built or maintained as part of the local highway
system.
There were differing standards. BLM had a stricter requirement
for proof, for instance, while under Utah law the state and counties
claim road ownership by showing 10 years of continuous use prior to
1976.
The issue became even more complicated following a 2005 ruling
from the 10th U.S. Circuit Court of Appeals, which upheld Utah's
interpretation of what constitutes local control over a road in
question. As one of her last acts before leaving office, former
Interior Secretary Gale Norton issued a guidance memo to agencies that
spelled out a broader policy approach that would essentially accept
states' and local governments' claims over roads (Land Letter, March
23, 2006).
Prospectors, settlers and ORVs
Environmentalists fear the order makes it easier for localities
to perform widespread, landscape-changing highway maintenance and
construction on public lands, possibly leading to rights-of-way claims
in national parks, wildlife refuges, national monuments and wilderness
areas. More recently, Colo. Rep. Mark Udall (D) has proposed an
amendment to the 2008 Interior appropriations bill that would prevent
local or state governments from claiming federal lands under R.S. 2477
(E&E Daily, June 14).
In fact, the standards being proposed by California counties
in their suits appear even broader than those asserted by Utah in its
successful challenge. Under California law, stated the San Bernardino
suit, "the acceptance of R.S. 2477 right-of-way could be established by
public use without formal action by any public agency." Almost any
local action, including use, public repair, depiction of the road on
public maps, or inclusion in the county highway maintained road system,
would suffice, San Bernardino argued in its complaint filed in U.S.
District Court against Interior last Oct. 26 [County of San Bernardino
v. USA; CV 06-1179 VAP].
Up until the creation of the Mojave National Preserve in 1994,
the county claims, the Bureau of Land Management did not require any
notice of highway maintenance or construction, but once the preserve
was formalized and turned over to the National Park Service, "NPS has
restricted access to materials required for maintenance and ... assumed
regulatory responsibility on the roads without county input or
approval."
The county's claim covers 14 roads or sections totaling about
241 miles. "These are roads that the county has been maintaining, some
before the turn of the century," said Mitchell Norton, deputy county
counsel. "These are not trails like is Death Valley. Almost all are
paved. Nobody is blazing new trails here."
Norton and colleague Charles Scolastico told Land Letter that
they expect to enter mediation with the federal agencies to try to
reach an agreement before the case comes to trial.
In contrast, the Inyo County case looks to be setting up a
court fight that will involve the various agencies as well as a group
of non-government organizations.
The Inyo complaint describes four relatively short and remote
sections of road — the longest being 18 miles — that is historically
connected to long-abandoned mining sites at Greenwater. In three
instances, the county claims, NPS siad the roads were part of the Death
Valley Wilderness and it closed the roads and put up signs to that
effect.
"These roads were part of a network of roads that enabled
prospectors and settlers to explore and establish communities in the
eastern section of the county at the beginning of the twentieth
century," wrote the county. "These roads have existed for generations
as a cultural and recreational heritage for citizens of Inyo County and
of the region. The county has a unique and independent responsibility
to preserve this heritage into the future," it further explained to the
court.
Charlie Callagan, a park ranger at the Death Valley National
Park, explained that at least one of the contested roads, called Padre
Point, a half-mile gravel spur to a view point, was at one time
mistakenly mapped within the boundaries of the wilderness area.
However, the dead-end strip "is not closed and we have no intention of
closing it," he said.
There were three other roads: about half of the 17-mile-long
Petro Road, which accesses Native American petroglyph sites; 3 miles of
Lost Section, south of Greenwater area; and the Last Chance Road and
trail, have been closed because they are part of designated wilderness,
he said. The 8 miles of Last Chance right-of-way being claimed by the
county never had a road, he said, but includes a hiking and cattle
path.
This issue of local governments taking title to dusty trails
as if they were developed highways has become a core issue for
conservationists and environmental groups. In some areas of the West,
local officials have declared R.S. 2477 rights of way over undeveloped
trails in wilderness areas and through private lands, leading to
numerous court cases, such as the high-profile fight over off-road
vehicle use at the Grand Staircase/Escalante National Monument in Utah.
Trails to highways?
That same fear is at play in the Death Valley case, and this
month a coalition of six groups, including the Sierra Club, Wilderness
Society, the Center for Biological Diversity, and the National Parks
Conservation Association, successfully petitioned the court to
intervene in the case.
In a June 14 ruling, District Court Judge Anthony Ishii ruled
that the groups have a substantial interest in the case, even though
they do not assert any ownership rights over the properties in question
[Inyo County v. Interior; U.S. District Court; No. CV F 06-1502 AWI].
What is at stake is not merely title to the contested land,
Ishii wrote. "The action also seeks to settle rights to particular uses
of the land, substantially influencing the character of surrounding
land vis-a-vis the land's wilderness designation," he wrote. The action
could involve giving the county the right "to convert what is currently
a pedestrian trailway devoid of motorized traffic into a two-lane rural
highway."
Because the groups have actively advocated establishing the
wilderness areas in the first place, including the blockage of
rights-of-way in order to enhance wilderness values, and the suit seeks
to "undue precisely what the proposed intervenors worked to
accomplish," Ishii held that the groups have shown their "substantial
protectable interest" in the litigation.
The ruling was hailed by the groups. "Inyo County's land grab
could undermine the very reasons Death Valley is such an iconic
landscape," said Ted Zukoski, an attorney with Earthjustice
representing the groups. "The court understood that and understood that
those with the strongest interest in protecting Death Valley should
have a seat at the table."
"The county is making claims within the wilderness area, and
in this instance, it's a direct threat to the wilderness designation,"
said Kristen Brengle of the Wilderness Society. "If a claim is going to
hurt protected land or land that should be under protection, we're
going to get involved," she said.
Deborah DeMeo, program manager for NPCA, said her group is
committed to balancing interests for recreation in parkland, including
allowing off-road vehicles where appropriate. However, in this case,
"It's not appropriate for them in wilderness lands with a quality of
quiet. Our concerns have more to do with the upsetting of the
ecosystem," she said.
Inyo County attorneys were unavailable for comment this week. A status conference in the matter is expected later this summer.
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