Roads to Ruin: Revised Statute 2477 and National Forests

Editor’s Note: this article is meant only as a practical orientation for the layperson, and does not represent the official legal positions of Wildlands CPR or our affiliates. RS 2477 law and policy is very complex and constantly shifting, and it would be impossible to represent the full spectrum of issues here.

In early battles over logging in the Pacific Northwest, timber companies would engage in what they called “park prevention” — targeting potential parklands for clearcutting to disqualify the areas from protection. Now, in Utah, anti-wilderness forces are doing the same thing, but they’re doing it with roads and off-road vehicles. A road, an alleged road, or any significant evidence of the passage of vehicles can be enough to disqualify public lands from a chance at future protection as Wilderness.

The largest threat to our national forests is not currently logging or mining; it is the expansion of playgrounds for the motor vehicle. With the increasing popularity and technological sophistication of off-road vehicles, lands that were once safe from damage merely because of their isolation are now in danger.

If you try to stay abreast of the ever-evolving plethora of public lands issues, you’ve probably heard something about RS 2477. The statute is a small part of the 1866 Mining Law, which says, “The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” A later public lands law repealed the Mining Law, but grandfathered in any public rights-of-way that existed on Bureau of Land Management land before 1976. However, most national forest lands were “reserved for public uses” (created) between 1896 and 1906. Therefore, most RS 2477 claims on national forest land must have been established before the date of the forest’s creation.

To make this a little more concrete, we’ll take a case in the La Sal Mountains outside Moab. A member of the Grand County Council wrote a letter to the Forest Service (FS), claiming several RS 2477 highways in a roadless area. Though it’s the county’s legal responsibility to present evidence showing that the county owns the claim, the Council member presented no such evidence. Utah counties generally argue that all they need to do is publicly make such a claim, and the roads are “theirs.” The county government, they say, then has all decision-making power over that “road.” Thus, based on a single letter, the Forest Service removed a large part of the roadless area from its maps.

However, the counties’ position differs considerably from FS policy. In response to a 1996 Congressional directive banning federal agencies from making any final regulations pertaining to RS 2477, the FS instituted a moratorium on validating RS 2477 claims. An RS 2477 claim on national forest land, under this moratorium, cannot be validated by the FS unless there is an “urgent need” to do so. Virtually all claims should be settled in court. Several counties, like Grand County, are making RS 2477 claims as part of the curthis moratorium, cannot be validated by the FS unless there is an “urgent need” to do so. Virtually all claims should be settled in court. Several counties, like Grand County, are making RS 2477 claims as part of the current forest travel planning process underway. However, the FS is supposed to make decisions about roads and recreation based only on regular planning tools (such as public input, field work, and ecological assessments). Unfortunately, many FS offices are unaware of their agency’s policies and regulations. This lack of knowledge makes them more subject to political intimidation from county governments.

Even if a case like Grand County’s were to go to court, proving up an RS 2477 claim can be a heavy lift. A county has to present evidence that a right-of-way existed before the national forest unit that holds the claim was designated. Since many forests, like the Manti-La Sal, were designated at the turn of the century, road construction records, maps, and photographs among other important evidence can be difficult to come by. In reality, RS 2477 is currently tangled in a web of lawsuits at various places in the court system, and no controversial claim is likely to be unequivocally granted until Congress or the courts have a final say.

Congress has been hesitant to resolve the question. The larger issue in RS 2477, of course, has little to do with transportation, and everything to do with history, culture and values. RS 2477 routes rarely link one major destination to another; they’re usually abandoned mine tracks, or cattle trails that meander across the countryside. The real source of all the wrangling is the question of who has control over federal public lands, and whether conservation or resource extraction will win the day. A series of environmental laws were passed in the 1970’s; some put restrictions on federal land for the first time. Some westerners resented federal management of public lands on which they had long had free rein. Resurrecting RS 2477 has been a strategy for county governments to circumvent decisions made by the federal government, by claiming that the county owns a highway right-of-way in an area the agency wants to protect.

Right now, many county governments in Utah are trying to create large, tangled back-country trail systems for off-road vehicle use. This shortsighted approach has the potential to destroy large portions of Utah’s wildlands, fragmenting habitat, ripping up desert waterways, and marring peace and quiet. With our partners, Wildlands CPR is making sure that all Forest Service offices in Utah have access to good legal information. Making sure that no harmful RS 2477 claims (like the ones in the La Sals) are legitimized as part of the travel planning process is one of our highest priorities.

— Laurel Hagen is Wildlands CPR’s Utah ORV Coordinator.