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Parks threatened by right-of-way claims.

One of the first public lands issues before Secretary Bruce Babbitt's Department of the Interior may also be one of the most significant. Across Alaska and the West, counties and states are claiming rights of way across national parks and other public lands.

The claims are based on a one-sentence 1866 statute originally enacted to grant rights of way for major highways that would open the West to mining. But as Revised Statute 2477 is now being interpreted, even a decades-old footpath or set of tracks across federal land may give a right-of-way claimant the power to build a road there.

Thousands of such claims have been asserted across national parks and public lands in Alaska and Utah. "What we have to do is keep that tangle of lines on a map from becoming a tangle of expanded and paved roads across the face of the parks," said David Simon, NPCA natural resources program manager.

R.S. 2477 has been on the books for more than 125 years, but the number of claims has skyrocketed under a 1988 policy statement issued by then-Secretary of Interior Donald Hodel. The policy sets extremely lax standards for recognizing R.S. 2477 rights of way.

Under Hodel's policy, if a vehicle has been driven several times across a stretch of federal land, or if the driver moves a rock from the path, there has been "construction" of a "highway." Someone can then claim a right of way for a "public highway" along that path and can build not only a road, but rest areas and other amenities that "facilitate use of the highway by the public." A statement by a public body that a route is considered a "public highway" is also enough to establish the validity of an R.S. 2477 right-of-way claim.

But in Utah and Alaska, it is the public bodies themselves who want the rights of way. Rural Utah counties have asserted thousands of R.S. 2477 claims across the Bureau of Land Management's vast holdings in the state. For ten years, NPCA and other conservation groups have been fighting attempts by Garfield County, Utah, to build a paved road across Capitol Reef National Park and Glen Canyon National Recreation Area under an R.S. 2477 claim.

Alaska hopes to use R.S. 2477 to create a vast network of roads opening the state's interior to development. Potential rights of way it has identified crisscross the state's parks and wildlife refuges. Close to 30 run through Denali National Park and Preserve alone.

NPCA and other conservation groups have been trying to put the brakes on R.S. 2477 claims. Largely as a result of their efforts, Congress has instructed Interior to complete a study by May of R.S. 2477 policy and its potential consequences. Since the appointment of Interior Secretary Bruce Babbitt, the Bureau of Land Management has instructed its state offices to postpone examination of R.S. 2477 claims until May, unless claimants have shown a "compelling and immediate need" to have their claim recognized.

BLM, which is responsible for the study, will release a draft version on March 1. The deadline for public comment had not been set at press time but will likely be in mid-March.
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Title Annotation:1866 statute to be researched by Bureau of Land Management
Publication:National Parks
Date:Mar 1, 1993
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