USA-ALL Utah R.S. 2477 Update

[Ed A. Stevens]

Date: Tue, 12 Aug 2003 11:40:41 -0700
From: Brian Hawthorne <[email protected]>
Organization: Utah Shared Access Alliance
X-Accept-Language: en
To: "Brian D. Hawthorne" <[email protected]>
Subject: USA-ALL Utah R.S. 2477 Update

Greetings USA-ALL Supporters,

Recently, the House Resources Committee staff intercepted a secret
Democrat Leadership Memo urging Democrats to use Parks and Federal
Employees for political purposes. The memo encouraged Democrat
legislators to tour National Parks with Park Administrators and
included a ready-made press packet, complete with pithy quotes about
how Republicans, especially the Bush administration, are "decimating
our national treasures". Yet another example of how Important public
land management issues are used by some legislators as nothing more
than a political football.

The recent shenanigans attempted by the powerful Environmental Lobby
regarding the 2004 House Interior Appropriations Bill provides quite
and interesting example of how these issues are used politically, as
well as an example of how legislators from both parities can rise
above the fray and rebuff the efforts of one of the most rich and
powerful lobby in America today.

This update is a detailed report on how the Environmental Lobby
attempted to use the Interior Appropriations process to advance their
radical Anti-Access agenda. Some of you may find this sort of
detailed analysis boring, but USA-ALL's first and best mission is to
sweat the details. That's how we effectively represent the interests
of those who use vehicles for access and recreation on public lands.

Roads which provide access to public lands in the West is an integral
part of the history, the culture, and the socio-economic fabric of
Western public lands states. These roads are a resource and part of
the physical infrastructure of counties and local governments. They
are National Treasures, owned by the American people, and should be
protected because they provide access for millions of Americans who
wish to view and enjoy America's remarkable public lands. They should
not be treated as a political football, or convenient photo-op.

Although the media seems to find it elusive, the truth is out there.
The Bush administrations admirable record on Parks is available to
anyone who wishes to view it, although it may not make the kind of
story the media likes (See:
<http://www.house.gov/resources/press/2003/0807secret.htm>http://www.house.gov/resources/press/2003/0807secret.htm
). The truth about R.S. 2477 is here, for anyone who wishes to learn.
(See: <http://www.rs2477roads.com>http://www.rs2477roads.com )

Radical Anti-Access extremists shouldn't be the only ones involved in
R.S. 2477 issues. USA-ALL sweats the details and provides important
factual information to the public, the press, and to legislators on
public lands access issues. The story about the 2004 House Interior
Appropriations Bill is compelling and represents a huge win over the
powerful Environmental Lobby in Washington D.C. Everyone at USA-ALL
hopes you find this update useful and enjoyable to read.

Brian Hawthorne
Utah Shared Access Alliance

R.S. 2477, The Roadless Initiative, Ban On Snowmobiles In Yellowstone
NP And The House Interior Appropriations Bill

A Bit Of Background First:
Most of you are aware that an R.S. 2477 right-of-way is the only
guaranteed access across public lands. Anything else is purely at the
discretion of the Secretary of the Interior of the Secretary of
Agriculture.

If you cut through all of the rhetoric, the controversy over R.S.
2477 roads is about two questions: Is it a valid right of way, and if
so, what exactly is the scope of that right of way? 2477 aficionado's
tell us the correct term for the establishment of a right of way is
"perfection". "Scope" is generally defined as the width of a right of
way.

What criteria must be met to establish a right of way, as well as the
scope of a right of way, is determined by State law. Although
challenged by the both the Department of the Interior and Wilderness
Advocacy Groups (WAGs), the State law criteria remains settled
precedent and is the law of the land today. This is precisely why the
R.S. 2477 issue varies from state to state.

The BLM didn't always disagree with the State Law criteria. Donald
Hodel, who served as under secretary (1981- 1982) and secretary of
the U.S. Department of the Interior (1985- 1989) articulated
long-standing policy on R.S. 2477 roads which became known as the
"Hodel Policy" (see:
<http://www.rs2477roads.com/2hodel.htm>http://www.rs2477roads.com/2hodel.htm
). The Hodel Policy was further defined in BLM manuals, handbooks and
other guidance (see:
<http://www.rs2477roads.com/2intmemo.htm>http://www.rs2477roads.com/2intmemo.htm
). When challenged by the WAGs in court, the Hodel Policy was
strongly upheld. Environmentalists hated it, but the Hodel Policy
resulted in much cooperation between federal land managers and rural
counties regarding roads.

But when the Wilderness debate in Utah was nationalized, these roads
suddenly became a key battleground for control over public lands. A
major sea-change in this battle occurred when Bruce Babbitt became
Secretary of the Interior. Once Babbitt was at the helm, the BLM
entered the battlefield decidedly on the side of the
environmentalists.

The BLM soon thereafter joined the WAGs in legal challenges over
control of these roads. Utah's San Juan, Garfield and Kane counties
found themselves defending road maintenance and grading on several of
their roads, including the famous Burr Trail (see:
<http://www.rs2477roads.com/2burr.htm>http://www.rs2477roads.com/2burr.htm
).

In a bold move, Babbitt tossed out the "Hodel Policy", and attempted
to re write BLM policy on rights of ways. Babbitt didn't just modify
the "Hodel Policy". Babbitt tossed all policy and legal prescient out
the window and formulated something completely different. The new
"Babbitt Policy" is so restrictive that unless a road was constructed
and maintained for the passage of goods and services between two
established communities, it isn't a road.

Congress responded (correctly) by prohibiting the DOI from
establishing any new R.S. 2477 policy. Babbitt responded
(vindictively) by issuing a directive that precluded BLM from
recognizing any right of way under the Hodel Policy!

Most people don't know this, but the BLM has applied the "Babbitt
Policy" to R.S. 2477 assertions in the Grand Staircase Escalante
National Monument and in Utah's San Juan County. Using the "Babbitt
Policy", the BLM recognized a grand total of one (1) road in Kane
County's portion of the GSENM. Applying the "Babbitt Policy" to San
Juan County's roads, the BLM recognized zero (0).

 

[Ed A. Stevens]

Utah Responds:
Road policy was only one area where the federal government was
attempting to usurp states rights. Concern over water rights,
livestock grazing, viewshead management and other initiatives
prompted Utah to create the Constitutional Defense Council (CDC). The
CDC was formed by Utah's legislature to defend Utah's rights in these
and other matters. One of the things the CDC did was to formulate a
strategy to "quiet" the title on R.S. 2477 roads. Documentation of
the validity of these roads was gathered and a Notice of Intent to
sue was delivered to the federal government. Since then, intense
negotiations for the purpose of avoiding litigation have failed.

Recently, Utah's Governor Leavitt announced the latest attempt to
avoid litigation. On April 9, 2003 the Department of the Interior
(DOI) and the State of Utah signed a Memorandum of Understanding
(MOU) establishing a process by which the state and counties may make
application to the BLM for a Recordable Disclaimer of Interest on
certain roads that cross BLM lands in Utah. An Recordable Disclaimer,
more or less, is a document that forever disclaims all interest in a
certain easement, or right of way, across public lands.

The agreement limits applications to roads established prior to 1976
that are passable by automobiles and trucks with 4 wheels, that have
been the subject of some type of periodic maintenance, and are not
within Wilderness, Wilderness Study Areas, National Parks and Fish
and Wildlife Refuges.

The application process begins with an agreement to reimburse the BLM
for the costs of processing the application. If the Utah BLM State
Director determines the road meets the requirements of certain
applicable statutes and regulations, and the terms of the agreement,
then the Department of the Interior will issue a recordable
disclaimer of interest limited to the width of "ground disturbance"
existing at the date of the signing of the MOU (April 9, 2003).

WAGs Go Bezerk:
Since the signing of the MOU, Wilderness Advocacy Groups (WAGs) have
committed significant public relations efforts to spin the
"Leavitt/Norton" MOU as a public lands giveaway. The WAGs press spin
has been predictable and exceedingly political, claiming that the MOU
would allow counties to pave hiking trails in wilderness and allow
dirt bike trails in national parks.

Of course, the MOU does none of that. The facts about R.S. 2477 are
quite different, and the WAGs are aware of this. The litigation we
mentioned earlier established several key precedents. Most
importantly, it affirmed that an R.S. 2477 assertion is a valid
existing right, and that the county need not make application or
claim to establish a right of way. It affirmed that State law is the
controlling legal authority over perfection and scope of a R.S. 2477
right of way.

Interestingly, the Burr Trail case, which is often portrayed as a win
by the Anti-Access crowd, clearly articulated a correlative
relationship between two parties (the counties and the federal
government) who must share the same lands. A correlative relationship
is defined as a naturally complimentary or reciprocal relationship.
The court said that the rights and powers of the county, and the
rights and powers of the federal government are not mutually
exclusive.

In essence, Burr Trail said both parties must respect the rights and
powers of the other. The court said: "In creating Capitol Reef
National Park, Congress clearly acknowledged the rights-of-way that
then existed, and contemplated that additional rights-of-way would be
granted within the Park, so long as "significant adverse effects" on
Park lands, resources, and values can be avoided." "Where widening or
realignment of the road may be needed, or some other significant
change is desired that would require construction, the law calls upon
the owner of the right-of-way to consult with the owner of the
underlying lands to allow impacts to be studied, alternative to be
formulated, and plans to be approved. It shouldn't be that hard to
do." (emphasis added)

The Leavitt/Norton MOU does precisely what the court advised in Burr
Trail. It's an attempt by two parties sharing the same lands to
settle a dispute over an easement. It does not, and can not, be used
to disqualify lands for wilderness or be used to pave hiking trails
in National Parks as the Environmental Lobby claims.

Making Sausage:
Add one part Roadless Initiative, two parts R.S. 2477, stir in a
Yellowstone Snowmobile Ban and top with 19 billion dollars.

Remember that saying about the Legislative process being similar to
making sausage? We witnessed quite a bit of sausage making on the
House floor recently...

Here's the scoop:
Environmental Lobbyists made a huge, concerted effort to advance
several of their more radical proposals via amendments to the 2004
House Interior Appropriations Bill. It was seen as a "win win" in
that if the amendments passed, it would secure several major planks
in the radical Anti-Access agenda. If the amendments failed, the WAGs
could spin it as another example of the Republican Congress and the
Bush administration being anti-environment.

Several Darlings of the Environmental Lobby, including Mark Udall of
Colorado, Jay Inslee of Washington and the ultra radical Chris Shays
of Connecticut offered a passel of Anti-Access riders to the bill,
some at the last minute. There was an amendment that would have
banned snowmobiles in Yellowstone National Park, one would have
implemented the Clinton/Gore Roadless Initiative and there were two
designed to kill the Leavitt/Norton R.S. 2477 MOU.

2 Utah Congressman Key Players In Preserving Public Access
Much to the Environmental Lobby's surprise and chagrin, the House
killed most of the Anti-Access amendments. Utah's Representatives Rob
Bishop and Chris Cannon were key players, especially in the effort to
preserve the Leavitt/Norton R.S. 2477 MOU.

The Salt Lake Tribune's Christopher Smith has done some pretty fair
reporting on the issue. Smith's article about the vote tells the
story well, and is generally accurate. (See: Leavitt-Norton rural
roads deal clears the House
<http://www.sltrib.com/2003/Jul/07182003/utah/76384.asp>http://www.sltrib.com/2003/Jul/07182003/utah/76384.asp
)

If Smith's article has a fault, it's that it doesn't quite put the
magnitude of this win into proper perspective. Several days prior to
the vote, the headcount indicated the Roadless Initiative amendment
had a real chance, the Yellowstone Snowmobile Ban would probably
pass, and Udall's R.S. 2477 amendment was a sure thing -- expected to
pass by 50 votes! (See: Congress likely to kill roads deal
<http://www.sltrib.com/2003/Jul/07162003/utah/75819.asp>http://www.sltrib.com/2003/Jul/07162003/utah/75819.asp
)

 

[Ed A. Stevens]

While the House leadership worked intensely on the amendments that
were close, Utah's Rep's. Cannon and Bishop took on the seemingly
hopeless task of killing the Udall Anti-R.S. 2477 amendment. Cannon
rolled up his sleeves, working both Republican as well as Democratic
colleagues. Bishop's dear colleague letter (mentioned in Smith's
Tribune story) was extremely effective, and his staff made a
Herculean effort with follow-up. It was seat of the pants politics
that lasted late in the day British Prime Minister Tony Blair
addressed Congress.

One Way To Skin A Cat:
The original Udall anti-R.S. 2477 amendment would have killed the
Leavitt/Norton MOU by simply blocking all Interior funds for
implementing the BLMs regulations on Recordable Disclaimers of
Interest. It seemed destined to pass, and that would have killed the
Leavitt/Norton MOU. Committee Chairman Taylor (Republican, NC)
amended the Udall rider so that funds would only be limited for
disclaimers issued within a designated National Monument, Wilderness
Study Area, National Park System unit, National Wildlife Refuge
System unit or lands within the National Wilderness Preservation
System. The Taylor amendment passed 226 to 194. Bishop and Cannon
voted yes and Utah's 2nd district Congressman Jim Matheson voted no.

The Leavitt/Norton MOU already excluded WSAs, National Parks,
Wildlife Refuges and Wilderness lands. The Taylor amendment added one
more important exclusion. Taylor's amendment added National Monuments
to areas where the MOU would not apply.

Expanding the restriction to National Monuments is unfortunate,
especially for Utah. Considering that the Grand Staircase Escalante
National Monument Plan is yet to be implemented because of disputed
roads, the Leavitt/Norton agreement could have been a useful option
for resolving disputed road assertions outside of the courts.

Not exactly a complete victory, but a political solution that
preserved the Leavitt/Norton MOU option, despite the intense pressure
from the Environmental Lobby.

The Environmental Lobby's Anti-Access Wish List:

The "Inslee Roadless" Amendment:
Representative Jay Inslee from Washington offered an amendment to
restrict the use of funds to propose, finalize, or implement any
change to the Clinton/Gore Roadless Initiative. The Bush
Administration has reviewed this overly restrictive, one size fits
all "Roadless" Initiative and has suggested several specific changes.
The amendment failed 234 to 185. All three of Utah's Representatives
voted no on this important amendment.

The "Forest Planning" Amendment:
The "sleeper amendment award" goes to Environmental Lobbyist Darling
Tom Udall from New Mexico. He offered an amendment that would have
prohibited the Forest Service from altering Clinton era planning
regulations. These new regulations were one of the more
controversial, but less well known, Anti-Access initiatives that came
out of he Dombeck Forest Service. These new planning regulations
shift the Forest Service's focus decidedly to preservation, and away
from active forest management. They are a disaster in the making and
the Bush administration is entirely correct to amend them. This
amendment failed 222 to 198 with Utah's Cannon and Bishop voting no
and Matheson voting yes.

The "Bison Overpopulation" amendment:
Sponsor: Rep Rahall, Nick J. (D- Ill) offered an amendment to
restrict the use of funds from being used to kill, or assist others
in killing, any Bison in the Yellowstone National Park herd. For many
years now, the numbers of Bison has far exceeded rangeland capacity
in Yellowstone. Bison currently consume forage that used to be
utilized by Elk and other wildlife species. The excessively large
Bison herd often wanders outside the park and on to other lands,
including private lands, in search for food. In response, state
wildlife officials have recommended and permitted depredation in
order that the herd remains healthy and does not over-consume the
resource. Rahall's amendment would have prohibited any federal funds
for such efforts. The amendment failed on a vote of 220 to 199. All
of Utah's Representatives voted no.

The "Yellowstone Snowmobile Ban" amendment:
A Darling of the Environmental Lobby, Rush Holt from New Jersey
introduced an amendment that would have prohibited funds for the
management of recreational snowmobile use in Yellowstone and Grand
Teton National Parks and the John D. Rockefeller, Jr. Memorial
Parkway. This amendment was close to passage, but failed on a 210 -
210 recorded vote. All of Utah's Representatives voted against this
lousy amendment.

Other amendments:

The "DON'T let it burn" amendment:
Arizona's John Shadegg offered an amendment that would have funded
hazardous fuels reduction activities by $19,000,000. Sadly, this much
needed funding was denied on a vote of 298 to 128. Utah's Bishop and
Cannon voted yes, Matheson voted no.

The "1% Cut" amendment:
Colorado Representative Joel Hefly gets our award for most
interesting amendment. Hefly offered an amendment that would have
mandated a mere 1% across the board cut in the DOI's budget.
Reflecting an appetite for ever increasing government spending, that
amendment was soundly defeated by a 341 to 81 vote! Utah's Chris
Cannon was the only Utah Representative to vote for this amendment.

 

[Ed A. Stevens]

Our view:

The significance of this political victory cannot be understated. A
week prior to the vote, the Department of the Interior's own 'head
count' indicated the Udall anti-R.S. 2477 amendment would pass by at
least 50 votes. Considering the Taylor amendment passed by something
like 24 votes, it represented a significant Pro-Access victory.
USA-ALL is appreciative, and impressed by the effectiveness of the
current House leadership, and especially by the efforts of Utah's
Chris Cannon and Rob Bishop. Defeating the powerful Environmental
Lobby is no easy thing.

It's easy to find out how your legislator voted on any legislation,
and even on individual amendments to legislation. Just go to
<http://thomas.loc.gov>http://thomas.loc.gov and click on "Roll Call
Votes", then navigate to the specific bill number you are interested
in. Bookmark this right now!

The political fight isn't over, however. After the August recess
ends, the Senate will be taking on their Interior Appropriations
bill, and then both bills will go to the conference committee. The
Environmental Lobby has already vowed to take this fight to the
Senate and win or loose, they will falsely portray the Republican
legislators and the Bush administration as anti-environment.

About the MOU:
The Leavitt/Norton MOU has potential, but it also has problems.
Receiving a Recordable Disclaimer of Interest is a powerful
inducement for its use, to be sure. On the other hand, the MOU
departs from State law and settled legal precedent in several ways.
Importantly, the MOU forgets to deal with scope altogether. That's a
major problem because scope is the most problematic issue concerning
an R.S. 2477 road. Intense negotiations are currently underway
between Utah's counties, the State of Utah and the BLM to "try and
make it work". Because the use of the MOU will constitute a voluntary
relinquishment of some of the rights and powers of the county and the
state, USA-ALL remains cautious and will reserve judgment until
details of how the MOU will be implemented are made public.

On the amendments:
No one should be surprised by any of these politically inspired
amendments. It proves that vehicle based recreationists must become
more politically active if we want to preserve our access.

We're a bit perplexed by Utah 2nd District Representative Jim
Matheson's amendment. It would have substituted the Udall amendment
and limited the ability to file disclaimers in National Parks,
Wilderness Areas, Wilderness Study Areas, National Wildlife Refuges,
National Monuments, military bases, or any roads except public
highways, roads. or streets that are traveled ways maintained by a
county or incorporated municipality, over which a conventional
two-wheel drive vehicle may travel, and with regard to private
property. (emphasis added)

Clearly, this constituted a major policy change, which by law cannot
be done via any appropriations legislation. Was Matheson not aware of
this obvious fact? Was the amendment written knowing it would fail?
What would be the purpose of such an amendment?

We can't fathom it, and thus far, Matheson's staff has not returned
our phone call.

In Smith's Tribune article, Matheson was quoted claiming his
amendment was "something that will meet the governor's goals by
allowing the truly non controversial roads to move on,". However, if
Matheson's amendment would have passed, it would have resulted in an
immediate court challenge by not only Utah, but by other public lands
states as well.

Related newsclips:
Road rules face long ride
<http://www.sltrib.com/2003/Jul/07282003/utah/79123.asp>http://www.sltrib.com/2003/Jul/07282003/utah/79123.asp
Utah road deal survives in House
And lawmakers reject snowmobile ban in Yellowstone
<http://www.desnews.com/dn/view/0,1249,510040741,00.html>http://www.desnews.com/dn/view/0,1249,510040741,00.html
Could trails become roads?
S.L. fears threat to watershed, Willow Heights
<http://www.desnews.com/dn/view/0,1249,510044043,00.html>http://www.desnews.com/dn/view/0,1249,510044043,00.html
A reasonable process
<http://www.sltrib.com/2003/Jul/07172003/public_f/75972.asp>http://www.sltrib.com/2003/Jul/07172003/public_f/75972.asp
Questionable roads
<http://www.sltrib.com/2003/Jul/07202003/public_f/public_f.asp>http://www.sltrib.com/2003/Jul/07202003/public_f/public_f.asp
Ramblin' roads
<http://www.sltrib.com/2003/Jul/07272003/public_f/78611.asp>http://www.sltrib.com/2003/Jul/07272003/public_f/78611.asp
Road rage
<http://www.sltrib.com/2003/Jul/07232003/public_f/77805.asp>http://www.sltrib.com/2003/Jul/07232003/public_f/77805.asp
SLC worries road fight could affect watershed
<http://www.sltrib.com/2003/Jul/07312003/utah/79908.asp>http://www.sltrib.com/2003/Jul/07312003/utah/79908.asp