Land / Road Closures



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  • Clark_Mason

Posted May 02, 2000 - 09:33 PM

#1

I copied this off of the Team Dual Dogs web site. It is critical information to any of you who are willing to take up the fight and not let our rights be trambled over. I know its long but it is a important law we need to use.

Clark

Clinton is using his presidential authority under the Antiquities Act without congressional approval to close most of our favorite trails in the Sequoia NF that we currently enjoy in our rides and spent years keeping groomed. It is extremely important for us to voice our concerns regarding this major closure and show there are far more of us enjoying the forest in this area than those in favor of the closure.

Sequoia trees are already protected and done so by a Republican president years ago. The new monuments planned are designed only to end OHV use. Period! A full one third of the Sequoia NF is scheduled to close.

For more information regarding the Roadless Initiative, visit the USDA website: http://roadless.fs.fed.us/

Please write or call:

Daniel Glickman, Secretary of Agriculture
Washington, D.C. 20250
Email: AGSEC@usda.gov

Arthur Gaffrey, Sequoia NF Supervisor
900 West Grand Ave.
Porterville, CA 93257
Email: agaffrey/r5_sequoia@fs.fed.us
559-784-1500

Also write:
Email: roadless/wo_caet-slc@fs.fed.us

Forest Service Chief Mike Dombeck
Email: Mike.Dombeck/wo@fs.fed.us
FAX: (202)205-1765 Phone: (202)205-1661

Freedom of Information Act (FIOA) Website: http://www.usda.gov/news/foia/main.htm

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VERY interesting letter

The battle that has developed over what some people are calling "trails"
in the western Mojave Desert was written up in the Feb. 23 issue of the
News Review. Since I have some mining interests in the local area and am
involved in scraps over the same general issues in Idaho, this article
caught my eye at once. It would appear useful to encourage the citizenry to
take a very long hard look at one every special aspect of roads (or trails).
In the western United States such issues are governed by a very
specific law that the land-management agencies wish we would all forget
about, and they try grandly to ignore until periodically tripped up in court.

The fundamental question is whether or not the federal land-managing
agencies have the right to close existing routes of travel, and that brings
us to what are called RS 2477 roads. These roads are despised by the BLM
and the USFS in particular, although quite frankly no land controlling
agency likes them for the simple reason that the presence of such routes of
travel means the agency cannot easily jam its planning down the public's throat.

What then is an RS 2477 road? Back in 1866, Congress enacted RS 2477, now
codified as Title 43 U.S. Code 932. This law applies to all public lands.
The law states: "The right-of-way for the construction of highways over
lands not reserved for public uses, is hereby granted." RS 2477 was in
effect for 110 years, until repealed by the passage of FLPMA in 1976.

However, and this is a very important however, the passage of FLPMA in
1976 specified that all existing roads and rights-of-way at that time be
continued. These roads and rights of way were not terminated. If you look
up FLPMA it says: "Nothing in the Act ... shall have the effect of
terminating any right-of-way or right-of-use heretofore issued, granted or
permitted." Now isn't that interesting. All of these old routes are still
valid, today, and only Congress has the authority to close any of them, not
the BLM, not the USFS or any other agency. Interesting! Indeed, if a
Federal agency or its employees close such a road, they would appear to
have violated Federal law.

As a matter of fact, closure of all the roads up into the east edge of the
Sierra, closure of roads out in the desert, plus closure of numerous roads
up in the tungsten- and gold-mining areas around Long Valley and Domeland,
would all appear to be illegal closures and I am amazed no one has
challenged these actions to date. (A point few people are aware of though,
is that USFS lands are generally not public lands and to be a valid RS 2477
road on the forest, the road had to exist before the date the USFS took the
land over.)

These matters have been fought in various courts. No doubt they will be
fought out again, for you will find the various agencies have all sorts of
in-house policies and legal opinions written by in-house lawyers to serve
their own agenda. But remember, a policy is simply an administrative wish
list - it is not the law. What the agencies generally do is challenge the
citizens and hope to wear them down.

Let us use a recent case in Utah where the BLM tried to get some counties
to give up their RS 2477 rights. The BLM lost. They are expected to try
again, and I sincerely hope, and expect, they will lose again. In this case
the judge stated that RS 2477 roads are: 1. "self-executing and became
effective when they were established;" 2. not required to have
"ratification from the Federal Government;" and 3. "preserved as they
existed in 1976." Point 2 is crucial. The BLM, the USFS and other agencies
do not have to ratify any of these roads. The agencies will claim you have
to prove all sorts of things, but trying to force you to do so would appear
to voilate the decisions of the court.

So then - let us take a local example. You have an old mining route,
dating from the late 1800s, that starts out south of Inyokern, wanders
across the desert to a spring near Laurel Mountain, then cuts up and west
to the skyline, drops down a canyon and on out a series of dry washes to the south.


This is an RS 2477 road and only Congress can close it. You may have
several closely parallel routes, each is an RS 2477 road. According to
various legal opinions and decisions I have seen, the BLM may want to close
these to pursue some in-house agenda, but they do not have the authority to do so.


This does not mean they won't blow smoke at you, try to baffle you with
important sounding opinions from their in-house lawyers. But the law is explicit.


If you elect to pursue the RS 2477 road matter, where do you start? You
gather all the court precedents and decisions, and there are many in the
western states, and you build an atlas of these roads. You use old mining
publications, old maps that show roads and routes, old advertising
brochures, diaries, maps in published books, old topo maps (which is one
reason I never throw away an old topo, or an old mine report.) As a matter
of fact, a lot of four-wheelers were using these old roads and making new
ones by the late '60s and early '70s.

As you pursue this matter you will also find the passage of FLPMA was
accompanied by a Legislative Intent letter that clearly spells out the
passage of FLPMA was to include the preservation of all existing RS 2477 roads.


Rep. Santini of Nevada wrote the letter and some 25 representatives signed
it, including those who were responsible for reviewing FLPMA.
To drive these points home even harder, in 1988 the U.S. 10th Circuit
Court of Appeals ruled that RS 2477 rights-of-way were still as valid, as
they were in 1976 when FLPMA was passed. This verifies once again that
these access routes are just as valid in the year 2000 as when established
by some miner, mule-packer or four-wheel club as long as it was prior to 1976.


It is up to the citizenry. You can let the agencies bluff you. You can sit
idly by with local officialdom and watch your rights fade away, or you can
become active and challenge these closures based on existing law and court
cases. You will find, of couse, a vast debate over what constitutes a road.
Stop and think what a road was when the law was passed. As defined recently
here in Idaho, a road includes even pack trails.

In any event, if it was traveled by wheeled vehicles of any type, even
just being two tracks in the sand, it is a road and is protected by law. I
know it because it takes 12 miles of 2477 road to reach my ranch and
several miles of another two-track RS 2477 road to reach the west side of
my place. These roads are real and you should not let them go without a fight.


As a final comment, do not get in the habit of calling these routes
trails. This is a perjorative term the agencies like because it sounds demeaning:
"Oh, it's just a trail - no one will miss it." Granted, in mining country
what are shown at times on maps as trails are actually access routes that
were built to take 18-wheelers, but stick with terms like access routes,
roads and rights-of-way.

You may find room for cooperation with the agencies, trading off truly
redundant roads for some post-FLPMA route you would like, but my advice is
give away nothing, absolutely nothing.

Carl F. Austin, Oakley, Idaho
Published in the March 22, 2000, edition of the News Review

(FINAL NOTE)
In 1997, as part of the Interior Appropriations Bill, Congress passed
legislation that specifically forbids any Federal agency to develop a final
rule or regulation regarding RS 2477 Rights-of-Way.
Title 1, Sec. 108. states, "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 U.S.C. 932)
shall take effect unless expressly authorized by an Act of Congress
subsequent to the date of enactment of this Act".

A subsequent letter to James F. Hinchman, Acting Comptroller General
of the United States General Accounting Office, to request a GAO
interpretation of the permanence of the provision was signed by 30 Senators
and Congressmen. In response, the GAO indicated that although the
appropriations bill would expire, the RS 2477 provision language was
written in such a way that it became permanent law. After the GAO
interpretation, the US House of Representatives Committee on Resources
issued a press release on September 4, 1997 with the headline, "Comptroller
General Rules That Congressional Approval Is Required For RS 2477 Changes;
Action Bans Secretary Babbitt From Voiding Right-of-Ways".

To date, this is where the RS 2477 issue stands.
The actual documents are available on line at the US House of
Representatives Resources Committee web site as follows:
1) Congressional Letter to James F. Hinchman, Acting Comptroller General of
the United States General Accounting Office, 7/29/97 http://www.house.gov...comm/rs2477.htm
2) United States General Accounting Office response to Congressional Letter 8/20/97 http://www.house.gov...omm/rs2477b.htm
3) US House Committee on Resources Press Release, 9/4/97, "Comptroller
General Rules That Congressional Approval Is Required For RS 2477 Changes;"
"Action Bans Secretary Babbitt From Voiding Right-of-Ways http://www.house.gov...97/090497pr.htm

This information is provided by Ron Schiller, Chairman, High Desert
Multiple Use Coalition. As usual, please feel free to pass this
information on to any other interested parties. Anyone wishing to receive
future information regarding issues related to the management of public
lands should send an e-mail to schiller@ridgecrest.ca.us and request to be
placed on the distribution list.

Here is another interesting Article: http://www.insightma...200003244.shtml

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