| A resolution of the RS-2477 roads issue moved closer to reality this past week. Many such RS-2477 roads exist throughout the Swell. |
Gov. Michael Leavitt announced what he felt was a notable day in the history of rural Utah on April 9 when he signed on behalf of the state of Utah a memorandum of understanding with the United States Department of the Interior. “This doesn’t conclude but creates a framework for issues we have battled with for 30 years and environmental concerns. There will be benefits for generations to come.
“This MOU spells out the framework for an administrative process that will allow us to begin resolving RS-2477 roads. To give some background, In 1866 the policy in America was to settle the American west; as a result Congress enacted legislation that said if you need to build a road for mining, timber, settlements or other uses, you have the right-of-way to do that across federal land. Any road built between 1866-1976 has the RS-2477 right of way. This was how it was done until 1976 when the law changed and the Federal Land Policy Management Act came into effect. FLPMA required those choosing to build a road to go through the NEPA process.
Gov. Leavitt went on to explain the problem that change created was that none of the roads created between 1866-1976 had been documented. The right to build those roads was contained in federal law. For the past years since FLPMA, many issues have existed between counties and the federal government as to which roads were part of the system before FLPMA. Where did the roads exist? What was the scope of that road? How wide was it?
In the spring of 2000 the state of Utah made a decision to take quiet title action on these roads. This would “quiet” any dispute on the title of any road. This action was taken in federal court asking to quiet title to resolve disputes. The state has been preparing for litigation the last three years and has put 100,000 person hours and $1 million to collect data and put it into a form which could be used in court to demonstrate with clarity that the road existed before 1976.
“The1866 right-of-ways are significant, some months ago we were advancing to the department of the interior the process of litigating roads individually; this was expensive and time consuming and we feel it is in the best interest of the federal government and the state in reviewing roads where there is undisputable evidence of the existence of that road prior to 1976 and to resolve these conflicts with negotiation not litigation.
“The department of the interior saw the virtue of that and we set out to develop a process where the state prepares an application for the federal agency involved to issue a recordable disclaimer of interest to the state where it has been demonstrated the road existed before 1976. Today we signed a MOU which lays out the process that each of the roads be compared to seven touchstones,” said Gov. Leavitt.
The governor went on to explain the touchstones; number one: Is there clear evidence that the road was in existence before 1976. Roads which will not be claimed at this time include roads in National Parks, wilderness areas, wilderness study areas, fish and wildlife refuges. Those roads being claimed will include roads traveled by normal vehicles, not 4-wheel drive trails but those accessible by regular vehicles. Roads will be accepted as is without expansion.
Gov. Leavitt expects that from here in a fairly short time frame the BLM will begin granting these recordable disclaimers. The counties and state will submit evidence to the BLM and the BLM will open the decision to a public process where comments will be accepted from groups or individuals on specific roads.
Gov. Leavitt pointed out that any decisions made do not prejudice any future right for a party to claim or disclaim a road not settled by this process. The counties will make the decision on which roads to present and they will be acted upon in an open way not by litigation which is a closed process. The governor believes the new process will take the cost burden of litigation off the state, federal government and the counties and put it on the environmental community if they choose to litigate these roads.
The governor believes the authority behind this MOU is solid. The state will pursue the roads that make up a transportation plan for the state. The federal agencies also want the RS-2477 roads defined. This MOU only includes the BLM no such agreement exists at this time with the forest service.
Gov. Leavitt also pointed out that this new process could of been used in a situation like that with the Burr Trail where it took a decade of time and $1 million to resolve.
The governor expects lists to be submitted to the BLM within a relatively short amount of time. Wes Curtis commented that Emery County has a good deal of data put together already which should aid them in submitting their list of roads. “This doesn’t hurt the chances for claiming roads in the WSAs at a future time. In fact it will aid in this process when you can prove a road exists up to the WSA boundary. Once a precedence has been established the BLM will be hard pressed to turn down those requests. It would be logical to continue the road through WSAs and not stop at the border.
“The governor is not tooting his own horn but, he demanded a meeting with Gale Norton and her staff and he went back to Washington with photos and a data base and made his case. He told them we are hard pressed to do something now or we’re going to court. He explained to them the kinds of roads we are claiming and what we’re not. They were confused as to what types of roads we’re talking about.
“These aren’t ATV trails but legitimate roads. We aren’t out grading up a bunch of roads and doing upgrades. At that point something switched in their thinking and they had a clearer picture. Up until then they were not receptive. They feel much better about things now. The governor deserves the lion’s share of the credit. Once that distinction was made; the documentation was in place to make the case.
“The burden will be on the environmentalists it will be their responsibility to say, ‘We don’t think the evidence is substantial that should be a road.’
“I’m sure the environmental community will be active to contain and curtail what’s happened here. It’s a huge issue, but we are on solid ground legally. The signing of this MOU has made this a historic day and we’re elated,” commented Curtis.