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Roads to ruin: an archaic federal law may allow paving of obscure dirt roads and trails through national parks and other public lands.

Imagine you are standing on the north slope of Mount McKinley, the highest peak in North America. Scanning Denali National Park and Preserve's deep green tundra, a cushion of plants with a growing season measured in weeks, your view would take in the ranges of the Toklat and Savage wolf packs. With a spotting scope, you might see herds of caribou moving along the glacier-fed Toklat River. One of the few signs of human use is a dirt road - off-limits to most private vehicles and used mainly by park shuttle buses - winding its way from the east.

Now envision a paved road slicing down from the northwest, crossing designated and potential wilderness and splitting the caribou corridor; another road from the north, open to rumbling trucks and motor homes; and perhaps a tourist radroad. Another part of this picture would reveal roads from the east and three or four more from the west, intersecting those already built to form a web-like highway network in the midst of one of America's most pristine natural reserves.

If it sounds like a nightmare, it is. Under an archaic and once-obscure federal law, the state of Alaska has claimed the right to turn 30 historic routes - some now invisible in the boggy muskeg - into roads through Denali. "We would be looking at a significant portion of the park crisscrossed by roads that would open up areas to off-road vehicles and interfere with wildlife," says Denali Superintendent Russell Berry. "This park is larger than the state of Massachusetts. I have five permanent rangers. There's no way you could control something like that."

This may be a worst-case scenario, since state engineers have pushed to construct only a few highways so far. But the state of Alaska claims it has the right to develop 1,700 roads, trails, and dogsled routes into major highways, including 200 in Alaska's national parks and preserves, and hundreds more across national wildlife refuges and other federal lands. Add road claims in other states in the West, and there may be nearly 17,000 across the nation.

Whatever the scene - southern Utah's rust-red slickrock country, the national forests of Colorado and Montana, or the sagebrush desert of eastern Oregon - the culprit is Revised Statute 2477. Enacted when giveaways of public lands were the order of the day, the vague 18-word statute granted rights- of-way for "construction of highways" with few limitations. Originally added to an 1866 mining law in a last-minute congressional maneuver, the statute is being wielded by developers as a sword to cut through the hearts of America's wildlands without giving land managers or the public any say in the matter.

"[R.S.] 2477 is right up there with the 1872 Mining Law," says NPCA Rocky Mountain Regional Director Terri Martin. "Both statutes just let people go out and do whatever they want on public lands without worrying about the environmental consequences. The time for that kind of an attitude is long gone."

Prodevelopment states and counties are churning out right-of-way claims for thousands of miles of roads, tracks, and trails, which they say will preserve access to the West's resources. But conservationists say legitimate transportation needs can be met in other ways, and these claims could disqualify potential wilderness areas and undermine the integrity of national parks. Under most R.S. 2477 claims, the state would own a mere 100-foot strip of right-of-way surrounded by millions of acres of federal lands, yet that strip could control land use and impacts within some of the nation's most magnificent parks and refuges.

Until last year, the road grab was aided by top federal appointees and a tangle of conflicting court decisions. But R.S. 2477 foes hope Congress and the new administration win finally erect a stop sign in front of the outdated statute that threatens to beat up the West like a four-wheeler careering out of control.

An Italian dish has become a striking metaphor in this fight, because some proponents boast and opponents fear that new road claims may make maps of the West look like a plate of spaghetti. In fact, road boosters in Alaska call themselves "the spaghetti guys."

Last year, Congress ordered the Department of the Interior to prepare a report on R.S. 2477 rights-of-way. Shortly after, the Interior Department imposed a temporary moratorium on processing most new claims. A January report by the Congressional Research Service said legislators should clarify the law. Then in June of this year, the Interior Department released its report and announced that it would develop and adopt regulations to guide decisions on these road claims.

When the statute was enacted in 1866, the Civil War had just ended. In the midst of debate over whether to off federal mineral reserves to pay the war debt, the Senate amended a ditch and canal bill to include the Lode Mining Act. A new provision allowed for highways over public land so miners could get to their claims.

It read: "The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted." That deceptively simple sentence, written when the philosophy of Manifest Destiny reigned, would be the focus of intense debate more than a century later.

In 1873 Congress reorganized the federal laws, labeling the right-of-way ordinance Revised Statute 2477. At the time, the government paid little mind to land use in the West, and miners and ranchers built roads as they pleased. When the public sought better protection of federal lands in 1976, Congress passed the Federal Land Policy Management Act (FLPMA) and in doing so, repealed R.S. 2477. The management act offered a new system for granting rights-of-way over federal land, including requirements for avoiding or limiting environmental damage.

But that did not put the old law to rest. When it repealed R.S. 2477 in 1976, Congress inserted a clause to protect "existing rights," including any rights-of-way that may have been established before the repeal. But nobody knows for certain how many existed at that time, where they were, or which were authentic.

In 1988 Interior Secretary Donald Hodel magnified these problems when he established a broad definition of what qualifies as a "pre-existing" right-of-way. Hodel said a party - most likely a state or county - could gain control of a route as long as it was "constructed" prior to 1976 as a "public highway" across unreserved federal lands - the basic requirements of R.S. 2477. But Hodel said even a track or trade may meet the "highway" requirement if it was used by "a pedestrian or pack animal," or if "an appropriate public body" simply asserts that a road or track "is considered a public highway." Similarly, Hodel said the construction requirement could be met by "removing high vegetation [or] moving large rocks out of the way." Even "the passage of vehicles by users over time may equal actual construction."

In other words, tire tracks in a dusty wash could provide enough evidence to make the government turn over the route to be widened, re-aligned, and paved with little or no environmental review or federal regulation. And it does not matter whether that track is now in a national park - if the road was there first, according to flodel's interpretition, it not only stays, but also may be converted into a major highway.

"I don't think anyone argues about real roads," says National Park Service (NPS) Realty Officer Dick Young, who helped write the Department of the Interior report. "We've got spots in the desert, though, where some uranium miner drove a jeep back in the 1950s, When you start turning these into roads, that's got to concern us."

Politics helped drive R.S. 2477's excesses. Hodel's generosity with the public lands was encouraged by pressure from Alaskan politicians eager to use R.S. 2477 to promote development on remote, wild, and protected lands, including parks and wilderness areas.

Alaska's Lt. Gov. Jack Coghill is a prime R.S. 2477 supporter. The only still-active politician who signed the State Constitution in 1955, Coghill recalls watching as a boy from the second floor of his father's trading post in

Nenana as 16-dog teams left for the Alaska outback carrying mail and supplies. Later, airplanes made quick hops between settlements, and a statewide road system was unnecessary. Now, Coghill says, it is. The dogsled routes that served as the state's arteries decades ago must be modernized to convey today's traffic-cars and trains. And R.S. 2477 is the key. Roads would permit development of Alaska's rich mineral reserves, the lieutenant governor says. A private company the dirt road along the trans-alaska oil pipeline thanks to R.S. 2477. Alaskans, Coghill maintains, simply want the same chance as the pioneers of the American West to take advantage of the land. "We have a vast resource base, and we have wonderful, vast areas of unique arctic and subarctic wilderness that should be experienced by the common people like you and me, not just the rich and privileged," says Coghill. "You've got to have places where you can take your camper, your Toyota, or your Ford. " Alaska's leaders have identified a whopping 1,700 routes, including dogsled trails, as potential R.S. 2477 rights-of-way. But, 'If I were a gambling man," Coghill says, I'd say no more than 250 will be activated.' Many, he adds, could be built for low traffic volumes and low speeds so they could not harm the environment. "People think we're going to take a bulldozer out across the tundra," he says. "That's just not true." But neither conservationists nor the Park Service is willing to gamble. In a memo to the task force writing the Interior Department report, NPS said the potential impact of R.S. 2477 claims on Alaskan parks could be devastating" - strong language for bureaucrats. Possible routes "cross many miles of undisturbed fish and wildlife habitat, historical and archaeological resources, and sensitive wildlands." Validation of the claims would "seriously impair" the Park Service's ability to manage for its protection mandate.

If a grandfather of the R.S. 2477 controversy exists, it would be the Burr Trail in southern Utah. In 1987, Garfield County decided to pave this scenic road that extends for 66 miles from the hamlet of Boulder, Utah, to the Bullfrog Marina on Lake Powell in Glen Canyon National Recreation Area. The road crosses polished sandstone of Capitol Reef National Park as well as Bureau of Land Management (BLM) lands proposed for wilderness designation. Paving the road, a 1988 study suggested would increase traffic by more than 1,000 percent and foster off-road vehicle damage, vandalism to archaeological sites, and roadside development. Despite legal action by NPCA and other environmental groups, the county has paved the BLM segments of the road under a right-of-way claim that is still in dispute.

In the years that followed, road advocates recognized the potential of R.S. 2477. For years, Utah's quiet Arch Canyon was closed to motorized vehicles. Then off-road vehicle users asserted a claim for a rough track that follows the trickle of water on the floor of the canyon. BLM eventually approved the route as a historic right-of-way and lifted the prohibition on vehicles, opening the canyon to a yearly jeep safari that crushes strearnside vegetation and sends fragile soils downstream The newsletter of the pro-ORV Sahara Club boasted: "The eco-freaks are crying in their beer."

In 1991 BLM asked Utah counties to identify R.S. 2477 claims to aid in planning. Only five of Utah's 29 counties have responded so far, but claims represent more than 4,000 separate routes, totaling thousands of miles. One claim targets a road through Glen Canyon National Recreation Area from a proposed coal mine on the Kaiparowits Plateau. Kane County has submitted old maps showing that the road - which might carry ten giant trucks an hour - was present before 1910, when the federal land was set aside, ironically, for coal mining.

"That's now a backcountry road that's really a rural experience," says Victor Knox, Glen Canyon's chief of professional services. "If you put however-many hundred coal trucks a day out there, it's going to be a whole different place."

In BLM's Henry Mountains Resource Area, a wonderland of sinuous sandstone, forested mountains, and shale badlands roughly the size of Yellowstone National Park, counties have filed 327 claims under R.S. 2477 - many of which slice up areas that environmentalists are promoting for wilderness designation.

Admittedly trying to convert listeners to "the church of the revised statute," Garfield County Engineer Brian Bremner says his county does not have funds to turn every cow trail into a highway, nor would it want to. County leaders, he cautions, just want to be sure the public always has a way to get to its lands across the West.

"What if the opponents find the road that goes to the Grand Canyon and shut it down?" Bremner asks. "Then you'd say, 'I'm sorry, the Grand Canyon's closed until further notice."'

Conservationists say that is an exaggeration since R.S. 2477 is not needed to provide access to public lands. Federal statutes, including FLPMA and the Alaska Native Interest Lands and Conservation Act, provide processes for granting rights-of-way across public lands and parks, and require measures to avoid or limit environmental damage. "R.S. 2477 is not a transportation issue, it is a resource management issue," says Chip Dennerlein, NPCA's Alaska regional director. "Nowhere in the assertions of R.S. 2477 has the notion of management been mentioned - not even for the road, and certainly not for the public resources that will be so dramatically affected. "

The Interior Department report to Congress identifies alternative methods of obtaining access and legal rights-of-way. It states: "While R.S. 2477 played an important part in building the road infrastructure on the public lands, its role should not be overstated ... R.S. 2477 is only one of several different ways that access has been developed, and other viable alternatives continue to provide access to and across federal lands."

Access is not the only motive of R.S. 2477 champions. After chafing under federal control of as much as 80 percent of the land in some Western states, locals finally saw in R.S. 2477 the chance to gain greater authority. Some county leaders admit they want to claim roads through potential wilderness areas - which must be roadless - simply to make them forever ineligible for federal protection.

By allowing development even of dogsled routes, Hodel's lax interpretation may have opened the door far wider than the law's authors intended. Only "significant roads" should qualify, says the Congressional Research Service report, although proof of "exactly what Congress intended" is lacking.

Court rulings are less conclusive. One ruling suggested that R.S. 2477 applies only to mining access roads, since the law was originally part of a mining act. In some cases, including one where a miner began bulldozing a road through Yukon-Charley Rivers National Preserve in Alaska, federal judges have said that agencies such as NPS and BLM can and should regulate R.S. 2477 roads. And other courts have said a statute of limitations gives parties 12 years after a route falls into disuse to claim it as a right-of-way. But still others - particularly in the Burr Trail case-said R.S. 2477 can incorporate less restrictive aspects of parallel state laws.

As a result, Alaska and Idaho have enacted their own procedures for recognizing rights-of-way - which the federal government has so far refused to accept. In Utah and Nevada, development groups are promoting similar action and encouraging miners to assert road claims. Counties in California and Oregon are also researching R.S. 2477 routes.

NPCA and other conservation groups are pushing Congress and the Clinton Administration to revoke Hodel's interpretation. They want the policy replaced with new legislation administrative procedures to prevent rights-of-way claims that could harm parks, other protected lands, or important resources.

That might keep the maps the West from becoming spaghetti-like. "If there ever comes a day when we look out across the wilderness of Denali and see even one more road," say NPCA's Dennerlein, "we will have stolen from our children a wonder that we can never give back."

Michael Milstein, a writer for the Billings Gazette in Montana, last wrote for National Parks about threats to park water resources.
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Author:Milstein, Michael
Publication:National Parks
Date:Sep 1, 1993
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