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Bill offers local control in rights-of-way issues

Wed., Oct. 4, 2006

A bill introduced by Rep. Steve Pearce, a New Mexico Republican, would give Western states and counties broad authority over rights-of-way across federal land, allowing them to convert footpaths, wagon tracks and cattle trails into roads.

Echoing a long-repealed 19th-century statute, Pearce’s bill would permit local governments to claim rights of way through national parks, national forests, wilderness areas, wildlife refuges and military bases, provided the routes appear on any official map or survey made before 1976. According to his bill, such documents can include land office plats and “tourist maps”.

Critics say the bill, which was introduced Friday, is nothing less than a giveaway of public land that would open up the nation’s parks and wilderness areas to motorized travel.

Pearce’s staff said Tuesday that the congressman intends the bill to clarify for Western counties and states what constitutes a valid right of way across federal land. Rights of way conflicts have been simmering for more than a decade in counties where the federal government owns the bulk of the land.

In recent years, a handful of rural counties in southern Utah have asserted claims to rights of way across Arches National Park, Grand Staircase Escalante National Monument and Canyonlands National Park.

“The problem is that currently it’s a patchwork, case by case legal review,” said David Host, Pearce’s communications director. “In his view, you had an untenable situation. This will establish rights and increase predictability.”

But critics say the broad language of the bill, which allows rights of way on “any public lands ever owned by the United States” could open land Congress already has protected from roads and other intrusions.

“It’s so sweeping that it’s almost impossible to believe,” said Kristen Brengel of the Wilderness Society in Washington, D.C.

In recent years, counties have made rights-of-way claims under an 1866 law titled RS 2477, which was designed to encourage the development of the rural West. The law was repealed in 1976 but grandfathered previously granted rights-of-way. But controversy lingered over what constituted a legal right of way.

In California, San Bernardino County proclaimed authority over nearly 5,000 miles of rights of way – more than twice the total mileage of maintained roads in the entire county. The claims included 2,567 miles within the Mojave National Preserve.

Former Department of Interior Secretary Gale Norton sought to resolve the matter in 2003 in an agreement with then Utah Gov. Mike Leavitt. The agreement would have opened millions of acres of land in national parks and wilderness areas to motorized transportation. Shortly after the deal was reached, southern Utah counties began upgrading primitive roads, and some officials tore down federal signs forbidding recreational vehicles. Environmental groups challenged the agreement, and a federal appeals court ruled last year that the burden of proof was on counties to prove their case, in part, by showing 10 years of continual use of the rights of ways.

Pearce’s proposal expands on the court’s ruling, Brengel said, “It goes further than the court or Norton. It says that just a line on a map is good enough to establish a claim.”

But, according to Kane County Commissioner Mark Habbeshaw, who has sued to control roads on federal land in southern Utah, “There’s no intention to make claims on trails or roads in obscure areas.”


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