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From little roads to 'roadless'.

There is a large body of law concerning "roadless areas" that was not discussed by Joseph Rotondi's "The Forest Fight" (Winter 2006-2007). The most important limitation on expansion of federal "roadless areas" is not the construction of new roads, but the existence of tens of thousands of small roads that already crisscross public lands. However, this limit is disappearing along with many of these small roads.

The roads were created in accordance with Revised Statute 2477 of the Mining Act of 1866, which allowed for the creation of public rights-of-way on federal lands. The roads later received protection from the 1976 Federal Land Policy Management Act (FLPMA), which preserved the public use rights-of-way in existence as of that date, but prohibited the creation of any new rights-of-way without a federal permit. As we have submitted written public comments frequently to the U.S. Forest Service (USFS), the Bureau of Land Management (BLM), and other federal agencies concerning these "RS2477 roads," we would like to explain this important issue.

Wilderness areas must contain no roads, so the existence of RS2477 roads has made the creation of new wilderness areas very difficult. The existing RS2477s require no permit for ongoing use or maintenance within the pre-1976 right of way. They do, however, require public vigilance and sometimes even litigation to keep them open, as the federals are closing them, usually illegally, as often as they think they can get away with it.

The FLPMA included an important protection for existing RS2477 roads: "Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act." The FLPMA further states: "Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted."

Later, in Section 108 of the 1994 Department of the Interior appropriations bill, Congress expressly withdrew all delegation of authority regarding any changes of rules, regulations, or definitions of RS2477 roads. Under the legislation, "No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477 (43 USC 932) shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act."

States, particularly western states, also have specific protections. Nevada, for example, requires that specific procedures be followed prior to closure of any public road, including roads across federal lands controlled by the USFS and the BLM.

It is well established that, though the reds may own the land through which these roads pass, they do not own the right of passage over the land. They cannot prevent either use--or even maintenance via bulldozer--within the existing right-of-way. Obviously, this creates quite an obstacle for the expansion of federal roadless areas--one that federal employees seem determined to make disappear.

DURK PEARSON AND SANDY SHAW

Nevada
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Title Annotation:FOR THE RECORD
Author:Pearson, Durk; Shaw, Sandy
Publication:Regulation
Geographic Code:1USA
Date:Mar 22, 2007
Words:499
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