by Gail Binkly | August 23, 2014 8:47 pm
A group of citizens concerned about motorized access on federal lands urged the Montezuma County commissioners on June 23 to “keep public roads open for public travel.”
“Please do not allow the federal agencies to delay and obfuscate,” said Dennis Atwater, chair of the Southwest Public Lands Coalition, a group that advocates for motorized and other access.
He charged that the Forest Service and Bureau of Land Management have closed roads in violation of federal, state, and county laws and sometimes even their own manuals.
He asked the commissioners to set a time frame for federal land managers to comply with the county’s wishes and fully “coordinate” regarding travel and land management.
“Simply tell them they have to follow the law,” Atwater said. “Give them a cease-and-desist time frame. . . If they don’t open those roads fairly quickly, the citizens are going to be out there opening the roads.“
Armed with documents citing court cases, federal rules, and state laws, Atwater said he and other coalition members were there to formally present the commissioners with a map they had prepared showing roads on Canyons of the Ancients National Monument, which is managed by the BLM, that they believe qualify as historic thoroughfares under a law known as RS 2477.
The 1866 statute reads, “the right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted.”
At the time it was passed, land was considered unappropriated until it was “reserved” for a specific use – as an Indian reservation, a military post, or a national forest. After that date, there would not be an automatic grant of a right-of-way.
RS 2477 was repealed by Congress in 1976, meaning no new routes could be created that way. However, roads that were already established under that statute retained their rights-of-way.
The question that lies at the heart of many RS 2477 disputes raging across the West is: What constitutes an RS 2477 road, and who gets to decide?
For Atwater and other open-access advocates, any publicly used routes across federal public lands that existed prior to 1976 are assumed to be RS 2477 routes, and it isn’t necessary to prove this in court. However, officials and attorneys with the federal agencies say RS 2477 claims must first be verified in court before any road is granted that historic status.
There are thousands of actual and potential RS 2477 claims on federal public lands across the country, and many heated court battles over the designations.
In April, the Tenth Circuit Court of Appeals dealt a blow to San Juan County, Utah, upholding a lower court’s finding that rejected the county’s claim of an RS 2477 rightof- way along Salt Creek in Canyonlands National Park. The lower court had said the county failed to meet Utah’s standard for an RS 2477 right-of-way, which is that the route had had “continuous use” for 10 years prior to the establishment of the national park.
Atwater said San Juan County’s claim failed because the county didn’t work hard enough to show evidence of continuous use. “They were absolutely dumb for not doing this,” he said.
He said there are other decisions that support his assertions, citing Uintah County (Utah) vs. Gale Norton (then secretary of the Interior) in 2001. In that case, a U.S. District Court ordered the BLM to remove wild horses from an area within the Book Cliffs after Uintah County and the Ute Tribe objected to a release of the animals.
The judge said the BLM had not coordinated with the tribe as required, but also that having wild horses in the area violated the agency’s own resource-management plan.
In the decision, the court wrote that the BLM was by law required to coordinate its land-use planning and management with Indian tribes, other federal agencies, and state and local governments “in order to ‘assure that consideration is given to’ non-BLM land use plans” and “to ‘assist in resolving. . . inconsistencies’ between BLM and other plans, and to ‘provide for meaningful public involvement of . . . Indian tribes in the development of resource management plans’. . .”
The court did not say that other entities had veto power over the agency’s actions, but said the BLM was supposed to give state and local governments and Indian tribes the opportunity for “review, advice and suggestions” about their programs, and that if the BLM was notified in writing of inconsistencies with local land-use plans, the agency had to show “how these inconsistencies were addressed and, if possible, resolved.”
Atwater told the commissioners the agencies have not done that locally. He said some RS 2477 roads on Haycamp Mesa in the San Juan National Forest have been closed, including “the stock drive” and “the old wagon road.” In addition, he said, the Forest Service is decommissioning roads in the Boggy-Glade area north of Dolores.
Atwater said the federal agencies should have mapped the RS 2477 routes before closing any roads, and that the agencies need to first bring proposed closures to the county for its approval.
“When they have a management change, they need to bring it in here and make damn sure it complies with the county land-management plan,” he said.
He called for the county to set a deadline for the federal agencies to stop the closures and reopen the routes. “This county is rich in legal documentation. . . but we’re starving for enforcement,” Atwater said.
He offered to meet with county attorney John Baxter, who was not present June 23.
“It would be good for him to see this and advise us,” said Commissioner Steve Chappell. Commission Chair Keenan Ertel agreed. He said if Baxter concurs, the board could meet with land managers and demand changes.
Chappell said monument Manager Marietta Eaton has a document listing the times monument officials have met with the commissioners or taken them on field trips, “and they’re calling that ‘coordination’.”
“One time they brought a map in and said, ‘We’re letting you see this map for the first time’ and we read in the paper a day later they had college kids closing roads, so what we were seeing on the map they were already implementing,” Chappell said.
Commissioner Larry Don Suckla said the board is aware of the issue, but could not give Atwater a time frame. “We’re working on it,” he said.
“We know you are,” Atwater said. “We’re just seeing time pass by. . . .We’ve been 2 ½ years working on that map,” he said, adding that they didn’t want to wait another 2 ½ years.
“We’re not going to let the summer go by. . . . If I’m driving down the road and I’m breaking the law, they’re not going to give me a time frame. I’m going to get cited that day.”
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