Phantom roads include cattle trails used by the ranching community, wash bottoms that drain the Colorado Plateau, horse and foot trails leading to ancient mining claims, vehicle-created routes in the national forests, abandoned logging roads, and two-track routes in the desert that fan out with no apparent destination. Unfortunately, counties in the western states, spurred on by industry-backed ORV enthusiasts, are trying to convert these ancient routes into ORV highways by using the antiquated statute. In recent months, as the Bureau of Land Management (BLM) has closed areas to motorized use to protect their pristine nature, several lawsuits have been filed claiming that RS 2477 routes exist within those closures.
Pristine Coastline Threatened
One lawsuit was recently filed against the Arcata BLM District in Northern California; plaintiffs include the California Association of 4 Wheel Drive Clubs, LostCoast 4x4s, The Blue Ribbon Coalition, and other recreation groups. At issue is the 1998 closure of an area known as BlackSandsBeach within the King Range National Conservation Area (KRNCA). The BLM closed this 3.5-mile section of undeveloped beach to motorized use to protect unique resources and recreation, and to provide consistent management for the entire KRNCA coastline, most of which is managed for primitive and back-country recreation. The Plaintiffs contend that the closure violated the following laws:
- The Federal Land Policy and Management Act, which requires the agency to recognize and provide for legitimate public uses of the area, including motorized access;
- The National Environmental Policy Act (NEPA), by failing to conduct an Environmental Impact Statement, failing to consider alternatives to the proposed action, and failing to determine whether the proposed action may have a significant effect upon the human environment;
- The Mining Act of 1866 (RS 2477), by restricting or eliminating existing rights-of-way along or adjacent to the wave slope at BlackSandsBeach;
- The Rehabilitation Act (which precludes discrimination against an individual suffering a disability), by preventing a disabled individual from participating in an activity conducted by an Executive Agency.
ORV use had been a controversial issue in the KRNCA (and especially the undeveloped beach) since its designation in 1970. User conflicts and incursions into non-motorized areas were well documented and led to the closure. BLM’s action was supported by a myriad of conservation groups, users of the KRNCA, Congressional representatives, and the California Coastal Commission. Because of this overwhelming support and the potential implications for all public lands, conservationists have intervened to support the BLM. Parties to the intervention include the Natural Resources Defense Council, Sierra Club, The Wilderness Society and the California Wilderness Coalition; attorneys from the California Environmental Law Project represent these groups. No hearing or trial dates have been set, though many eyes will be watching this case as it unfolds.
The “Big Dogs” Come Out to Play
Another RS 2477 issue is raising its ugly head in southern New Mexico. At issue is, again, a closure by the BLM, but this time the routes in question are within the Robledos Mountains Wilderness Study Area (RMWSA). In the last decade the RMWSA had become a popular playground for “extreme” ORVs - 4 Wheeler magazine called the routes within the RMWSA “hardest of the hardcore.” Only extremely modified vehicles could make it, as the advent of “locking differentials” allowed vehicles to traverse steep and rocky terrain that was impossible not long ago. With this new technology and the promotion of these routes in motorized publications and by local four-wheel-drive clubs, the use within the RMWSA drastically increased along with degradation of the resource.
BLM personnel noticed these new routes in 1997 and, after closer inspection, identified significant adverse impacts. In February of 1998 BLM issued an emergency closure of the approximately 10 miles of routes within the WSA, to prevent further degradation and protect natural values. At the same time, BLM designated approximately 15 miles of new motorized routes south of the existing WSA, to appease the motorized community. Of the new ORV area, BLM’s “Robledos Mountains Vehicle Management Environmental Assessment” states that “The routes have been carefully selected to provide challenging and scenic Off-Highway Vehicle (OHV) opportunities while screening these activities from view.” These routes are intended for “both stock and custom OHVs” and “the level of challenge associated with some of the new routes would exceed any existing routes in the Las Cruces area.”
The June 1998 edition of Four Wheel & Off-Road magazine notes: “With the closing of the two toughest trails at last year’s meeting, the Guardian and Wolf Run (within the WSA), the Las Cruces Wheelers knew they had to find some bigger and better trails quickly. The results of these efforts were the opening of no less than 5 new trails, rated either hard or extreme. When you open that many new hardcore rock trails, the big dogs come out to play.”
Unfortunately the “big dogs” still weren’t satisfied. The Southwest Four Wheel Drive Association and Las Cruces Four Wheel Drive Club filed suit in June of this year, claiming that the routes closed were public roads established under RS 2477. Conservationists disagree and are intervening in this case to support the BLM. The New Mexico Wilderness Alliance and The Wilderness Society have joined forces and are represented by the Earthjustice Legal Defense Fund.
Both of the above mentioned cases could have far reaching impacts on all public lands. They represent some of the first major RS 2477 cases outside of Utah and Alaska (the traditional hotbeds for this issue) and probably won’t be the last. ORV groups are spreading the gospel of RS 2477 throughout the West and those concerned with wildland protection must take note and fight to prevent a web of phantom roads from taking over our last remaining roadless areas.
For activists, the implications are twofold. First, it is imperative that grassroots activists know about any pending RS 2477 issues in their region. Activists should not rely on the agencies to adequately defend against such claims. Moreover, because there is so little case law on RS 2477, and no especially favorable or unfavorable precedents, every case is important. Second, on-the-ground documentation related to potential RS 2477 claims is critical. Knowing about the existence, purpose, construction and maintenance histories, and similar information is extremely important when assessing the validity of claims. Conveniently, this information is readily obtained while conducting roadless boundary surveys and ORV damage surveys, and the same basic rules apply: be systematic and precise, take well-documented photographs, and take thorough field notes.
For more information on phantom roads/RS 2477 or to report RS 2477 problems, contact TJ Brown at the Coalition to Fight Phantom Roads, 303.650.5818 x111 or e-mail tj_brown@tws.org [1]. CFPR is a project of: The Alaska Wilderness League, Earthjustice Legal Defense Fund, Great Old Broads for Wilderness, Southern Utah Wilderness Alliance and The Wilderness Society.
— TJ Brown works for the Coalition to Fight Phantom Roads, tracking RS 2477 issues and providing assistance to communities fighting the ancient statute.