Revised Statute 2477 (Section 8 of the Mining Act of 1866) is a federal law that authorized construction of roads across federal public lands.
“The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
This law helped settle the West for 110 years. Residents of Utah, visitors, pioneers, and settlers created and used thousands of roads across public lands for farming, ranching, hunting, recreating, mining, and connecting communities. We continue to use many of these routes daily and some occasionally or seasonally.
Public right-of-way is a legal term of art to describe the right of all members of the public to travel and access a route regardless of land ownership
Congress repealed R.S. 2477 in 1976, and enacted the Federal Land Policy and Management Act (FLPMA). This law departed from pro-development land policy and established a preference for retaining lands in federal ownership. Nonetheless, Section 701 of FLPMA preserved all R.S. 2477 rights-of-way that existed at the time it was passed and kept them open for public use:
“Nothing in this Act or any amendment made by this Act, shall be construed as terminating any valid right-of-way or other land use right or authorization existing on the date of approval of this Act.”
Today, the State and Counties have to rely on R.S. 2477 to establish ownership of routes that have been used continuously for ten years prior to 1976.
Why Do We Have Disputes Over R.S. 2477 Roads?
There is no formal administrative or judicial process under FLPMA to confirm the State and counties’ ownership of R.S. 2477 rights-of-way. Sometimes, the federal government may manage certain routes on its land without considering local, county, and State interests. Environmental groups with strong conservation interests also often want to participate in public land and route management decisions. The question of “who owns a road” becomes central when these interests are at odds.
I first became aware of RS 2477 In 1976 as Conservation Coordinator of the California Association of Four Wheel Drive Clubs South District and Jack Edwards said “hang on to your hats, money making NGO’s are going to take all the land they can in order to stay in business. They will ask for compromise when all they can do is take land (roads) away from us.”
The Burr Trail was first.
In 1987, environmental groups filed the first R.S. 2477 lawsuit in Utah. They sued the federal government and Garfield County officials to stop the county’s improvement work on the Burr Trail. The Burr Trail, generally recognized as an R.S. 2477 right-of-way, is a historic highway in Garfield County used by the public since late 1800s.
The federal judge decided in favor of Garfield County allowing it to make reasonable and necessary improvements to the Burr Trail for safe travel. The only section excluded from improvements was the road segment next to a wilderness study area. Read the complete published decision in Sierra Club v. Hodel
UINTAH COUNTY V. SALAZAR (“WILDLANDS” LITIGATION)
The Federal Land Policy and Management Act of 1976 (FLPMA) established a process for designating Wilderness Study Areas (WSAs) on public lands. FLPMA directed the Bureau of Land Management (BLM) to inventory and study road less areas under its management for wilderness characteristics.
Wilderness is “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” 16 U.S.C. § 1131(c).
To be designated as a WSA, an area must have the following characteristics:
· Size: at least 5,000 acres
· Naturalness: affected primarily by the forces of nature
· Recreational opportunities: solitude or primitive and unconfined recreation
By November 1980, the BLM had completed its field inventories and designated about 25 million acres of WSAs. Congress has reviewed some of these areas and has designated some as wilderness and released others for non-wilderness uses. Until Congress makes a final determination on WSAs, the BLM manages these areas to preserve their suitability for designation as wilderness.
We have waited 37 years and these WSA’s do not qualify as wilderness and should be returned to public land status. This is a great opportunity for mass mailing our Representatives and voicing our opinion.
Secretarial Order 3310
On December 22, 2010, Ken Salazar issued Secretarial Order 3310 (the BLM issued its manuals shortly thereafter). Order 3310 created a new public land designation—”wild lands” that superseded existing land use management plans and created additional steps in the implementation of land management decisions. In essence, the BLM began managing “wild lands” as “de facto” wilderness in violation of the BLM’s rulemaking procedures, federal laws, and WSAs designation process. Order 3310 is a land management plan revision or amendment that circumvents mandatory statutory and regulatory procedures and disregards the deadline for WSA designations.
In October 2010, Uintah County filed a lawsuit challenging the BLM’s “wild lands” designation as “de facto” wilderness management in contravention of the resource management plan. The State of Utah filed a separate action in April of 2011. The State and Uintah County’s lawsuits were later consolidated into one action. The State and county are asking the federal court to declare Order 3310 as an act beyond the Secretary of the Interior’s statutory authority and to set it aside as contrary to the law.
In response, the BLM filed a motion to dismiss, which the Court has denied in July of 2014.
Litigation Timeline October 2010 The State of Utah and Uintah County file suit in Utah federal district court challenging Secretarial Order 3310 April 2011 Environmental and conservation groups including the Southern Utah Wilderness Alliance (SUWA) intervene on behalf of the United States July 2011 The United States files a motion to dismiss Uintah County’s case claiming the district court has no jurisdiction and the plaintiffs failed to state a claim July – October 2011 The states of Wyoming and Alaska along with several land users associations are granted amicus curiae (friend of the court) status to support the state and county’s position June 2014 Oral arguments held in district court before Judge Dee Benson on motion to dismiss July 2014 Judge Benson denies the motion to dismiss
The above is an example of the preservationists in BLM and NGO’s to restrict public use and travel by changing its name. Ie. Public Land, definition of a road, wilderness, wilderness study area, wilderness like area, Areas of Critical Environmental concern, etc.
The Bureau of Land Management develops resource management plans (RMPs) to guide the agency in managing public lands.
“The Congress declares that it is the policy of the United States that . . . (8) the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resources, and archaeological values . . .”
Federal Land Policy and Management Act (FLPMA) § 1701(a)(8).
Developing and implementing a plan is a complicated task that requires striking a balance between many competing land uses. The BLM must also protect valuable land resources for the future by controlling depleting uses.
To consider these competing interests, the BLM publishes a notice of intent to develop an RMP in the Federal Register, local media, and other sources. The notice allows for a 30-day public review and comment period. In addition to the notice, the BLM solicits input through mailings, newspaper articles, public meetings, and workshops. It gathers, screens, and evaluates ideas from public, private, and internal sources.
Timeline December 2008 The environmental organizations file SUWA v. Burke challenging Moab, Price, and Vernal RMPs in federal district court for the District of Columbia. January 2009 The State of Utah and Carbon County file a motion to intervene in the case as defendants in support of the BLM and the RMPs. Environmental organizations oppose intervention. After briefing, the court grants intervention. March 2009 The State files a motion to transfer the case from the federal district court in D.C. to Utah federal court. November 2010 The same environmental organizations sue the BLM over Monticello, Kanab, and Richfield RMPs and Travel Plans in federal district court for the District of Columbia. Several other affected Utah counties join the lawsuit. March 2012 Both cases are transferred to the federal court in Utah. June 2012 Environmental organizations, as plaintiffs, ask the court for an order to argue Richfield RMP first. (One RMP is chosen to manage this large litigation.) Judge Dale A. Kimball orders the parties to begin briefing and arguing the Richfield RMP and Travel Plan. November 2013 Judge Kimball issues a decision on the Richfield RMP and Travel Plan. May 2014 Judge Kimball issues a decision ordering the BLM to conduct analysis of the routes in the Richfield RMP.
A Travel Plan is a document designating routes as open, limited, or closed to OHV use. BLM prepares Travel Plans as part of its RMP process.
Judge Kimball’s Ruling on Richfield RMP
After briefing and oral argument, the court issued a decision ruling partially in favor of the environmental groups and partially in favor of the BLM, the State, and other interveners.
Decisions favorable to the BLM:
1. The National Environmental Policy Act of 1969 (NEPA) requires the BLM to take a “hard look” at the environmental impacts of OHVs. The BLM has complied with this requirement.
2. The BLM sufficiently considered the impacts of the OHVs in the context of climate change.
3. The BLM complied with FLPMA with respect to air quality standards.
4. The BLM generally complied with prioritizing Areas of Critical Environmental Concern (“ACECs”) (except for the proposed Henry Mountains ACEC).
5. The BLM generally complied with the Wild and Scenic Rivers Act (WSRA) in implementing eligibility criteria and designating suitable rivers (except for Happy Canyon and Buck and Pasture Canyons spring areas).
Decisions favorable to the environmental groups:
1. The BLM has established OHV minimization criteria that guide its route/road authorizations in the context of minimizing the impacts on soils, vegetation, wildlife, air, water, and cultural resources. The BLM did not apply the minimization criteria in its preparation of the Travel Plan.
2. The BLM conducted Class I surveys in the Richfield RMP area to evaluate the impact of OHV routes on archeological sites. The national Historic Preservation Act (NHPA) requires BLM to conduct Class III (intensive on the ground) surveys to collect information on potential archeological sites on all OHV routes in the limited use area. Judge Kimball ruled that the BLM must conduct Class III surveys
Current Litigation Status
Judge Kimball issued a Memorandum Decision and Order on May 22, 2015 stating the proper remedy for the deficiencies in the Richfield Resource Management Plan. The deficient plan will be vacated, and the rules that were in place prior to enactment of the deficient plan will we restored. BLM will have a three years to inventory cultural resources and study impacts to them. At the end of the three year period, BLM will release a new record of decision. Additionally, BLM has six months to issue a decision on whether to designate the Henry Mountains as an area of critical environmental concern and a year to designate Happy, Buck, and Pasture Canyons as wild and scenic rivers.
Sage-Grouse Conservation Plan
Federal Decision to List Greater Sage-Grouse for Protection
In a decision published in March of 2010, the U.S. Fish and Wildlife Service (the Service) determined that the Greater Sage-Grouse is warranted for listing under the Endangered Species Act, but deferred the actual listing process based on greater needs of other species. The decision to defer is set for review in 2015.
Greater Sage-Grouse live in sagebrush environments in eleven western states and occupy habitat extending over about 14 percent of Utah in a very scattered pattern.
The Service identified habitat fragmentation as the primary reason for its decision to list Greater Sage-Grouse for protection. It described numerous factors contributing to fragmentation, including economic activities (i.e.
Utah’s Conservation Plan for Greater Sage-Grouse
Addressing this potentially far-reaching listing decision, Governor Herbert chartered a broad-based Working Group in early 2012 to provide recommendations for a State Conservation Plan for Greater Sage-Grouse. Governor Herbert announced completion of the Plan in April of 2013 as the Group delivered its recommendations. The Plan builds upon and continues the State’s work to protect Sage-Grouse, which has been underway for the past 15 years. As part of this effort, Utah has spent millions of state and federal dollars to improve more than 500,000 acres of habitat. Annual objectives of the Plan include:
· protecting 10,000 acres of the best Sage-Grouse habitat
· enhancing 25,000 acres of existing Sage-Grouse habitat
· increasing the total amount of Sage-Grouse habitat by 50,000 acres
The Group reviewed information from many sources, including detailed local biological and land use information provided by ten existing Local Working Groups (which have been coordinating efforts to protect and conserve Greater Sage-Grouse since 1996), information from the livestock and energy industries, conservation groups, and others.
Greater Sage-Grouse conservation in Utah is a complicated effort involving different lands. As the chart shows, private lands comprise about 41 percent of habitat, Bureau of Land Management (BLM) administered lands cover another 34 percent, U.S. Forest Service lands total 10 percent, School and Institutional Trust Land Administration (SITLA) lands make up 8 percent, Ute tribal lands cover 5 percent, and other state and federal agencies’ lands cover the remainder.
renewable and nonrenewable energy development), grazing, recreation, and natural events, such as wildfires.
Why Is It a Good Plan?
1. The Plan is comprehensive and proactive.
2. It provides incentive-based protections on private, local government, and SITLA lands.
3. It includes reasonable cooperative regulations on other state and federally owned lands.
4. It protects habitat necessary for the year-round life-cycle needs of the species, eliminates threats, and perpetuates conditions for continuing a viable Greater Sage-Grouse population in Utah.
5. It envisions a concerted effort to increase the size of the habitat base through aggressive rehabilitation efforts.
Executive Order Implementing Utah’s Conservation Plan
On February 10, 2015, Governor Gary Herbert signed an Executive Order implementing the Utah Conservation Plan for the Greater Sage-grouse. The Order ensures state agencies will conform with the Conservation Plan and make management and policy decisions that “maintain, improve and enhance Greater Sage-Grouse habitat.” State agencies will continue to work with federal agencies to assure the conservation needs of the bird.
Review and Implementation
The State has submitted the Plan to the Service for its opinion on sufficiency of the conservation provisions. The U.S. Fish and Wildlife Service has been reviewing Utah’s Conservation Plan since February 2013. The first implementation steps are underway, including:
· coordinating the Plan’s objectives with the Natural Resources Conservation Service
· aligning the Plan’s objectives with the Resource Management Plan amendments under review by the BLM and the U.S. Forest Service
· creating the Mitigation Bank with the Department of Natural Resources and the Department of Agriculture and Food to keep a coordinated tally of development proposals, along with offsetting rehabilitation and mitigation efforts to meet conservation objectives (private landowners may receive assistance to participate in this effort)
Utah’s Conservation Plan in Action
The Utah Division of Wildlife Resources, alongside PLPCO, is responsible for implementing Utah’s Conservation Plan. The 2014 Annual Report shows Utah’s sage-grouse are responding positively and the population has been cycling up over the last three years. Each of the Conservation Plan’s objectives are currently exceeding expectations. Utah’s male sage-grouse population ten-year rolling average is 101% of plan objectives. In fiscal year 2014, Utah added 240,000 acres of conservation projects to benefit sage-grouse, meeting the required addition of 50,000 acres of habitat and improvement of 25,000 acres of habitat each year.
For more information, please visit the Utah Division of Wildlife Resources website, here.
The above is an example of Preservationist NGO’s using any excuse to close off Public Land. I.e. spayed toad-toad, snail darter, owls, cactus etc. Note that they do not close it off to healthy, young hikers or animals, just mechanized vehicles that keep out the old and handicapped, mining and extraction, and recreational vehicles.
Transfer of Public Lands Act and Study
During the 2012 General Session, the Utah Legislature passed H.B. 148, “Transfer of Public Lands Act and Related Study,” in an effort to develop a new model for public land management and use. Governor Herbert signed the bill into law on March 23, 2012. H.B. 148 provides a framework for transferring public lands into State ownership. Public lands contemplated by the bill exclude national parks, all national monuments (except the Grand Staircase-Escalante National Monument), specific congressionally-designated wilderness areas, Department of Defense areas, and tribal lands.
Is H.B. 148 Legal?
H.B. 148 is rooted in the historic federal land policy in place at the time of Utah’s statehood. This policy entailed disposing of public lands to pay off federal debt and to encourage the settlement of western lands for the benefit of the states and the nation. It was very much a part of the various enabling acts that authorized new states to join the Union. Additionally, the United States’ disposal of public lands to the State of Utah was a significant benefit of the bargain Utah made with the federal government at the time of statehood.
How Can Utahans Benefit?
Today, approximately two-thirds of Utah’s energy resources are located on federally owned lands. Conflicting and cumbersome federal rules, regulations, processes, and management policies often prevent development of these resources resulting in diminished revenue to the State and its citizens. H.B. 148 initiative would increase Utah’s ability to access and responsibly develop its energy resources.
Decisions by Utahan’s, whose lives and livelihoods depend on prudent stewardship of the lands, will better reflect local needs and interests. Improved land management will also serve the national goal of maximizing the economic productivity and environmental benefits of the lands.
PLPCO’s Role and Efforts in Supporting H.B. 148
H.B. 148 involves many practical and some legal considerations regarding the actual transfer of public lands into State ownership. To address these issues, the legislature directed the Constitutional Defense Council (CDC), to conduct studies on potential land transfer and to prepare a report and recommendations to legislative interim committees.
PLPCO’s staff and attorneys assigned to the Public Lands Section of the Attorney General’s Office created two reports presented to the Natural Resources, Agriculture, and Environment Interim Committee and the Education Interim Committee on November 2, 2012.
1. “Report on Utah’s Transfer of Public Lands Act: H.B.148” describes the historical context of H.B. 148 and contains information regarding the ownership and economics of the public lands. It also makes recommendations regarding future steps in the land transfer initiative. Download Report
2. “Toward a Balanced Public Lands Policy: A Case Statement for the H.B. 148: Utah’s Transfer of Public Lands Act” explains the necessity of change in public lands policy and rationalizes the suggested mechanism for transferring public lands into State ownership. Download Report
H.B. 142 and the Economic Feasibility of Transferring Public Lands
3. In 2013, Utah Legislature passed H.B. 142, giving PLPCO the responsibility of directing and overseeing a study and economic analysis of the transfer of public lands contemplated by H.B. 148. PLPCO put together a team of economists from the University of Utah, Utah State University, and Weber State University to conduct the analysis. The team worked on the study for over 18 months preparing a final report “An Analysis of a Transfer of Federal Lands to the State of Utah”. Download Report
4. The 700+ page study examines economic feasibility of the proposed lands transfer. The study provides information about the current uses of land, the economic effects and non-economic benefits of those uses, and the ramifications of any transfer. Additionally, the study estimates the costs of managing the transferred lands and identifies the state agencies that could manage those lands. The study will guide the Utah Legislatures when the 2015 legislative session convenes in January.
5. PLPCO also prepared its own report to the Natural Resources, Agriculture, and Environment Interim Committee — “Pathway to a Balanced Public Lands Policy.” This report reviews and summarizes the economic study, finding it to be a cautionary, yet optimistic analysis of the opportunities and challenges facing a public lands transfer. The main challenge is finding the proper balance between preserving and protecting Utah’s many scenic areas and dispersing the lands economic value and net benefit over the entire state. Such balance can be achieved. “ Download Report
6. The Endangered Species Act is an environmental law passed by Congress and signed into law by President Nixon on December 28, 1973.
7. The ESA was enacted to prevent the extinction of imperiled plant and animal life, and to recover and maintain those populations by removing or lessening threats to their survival, including threats to their habitat.
8. The Act is administered by two federal agencies, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA).
9. A species will be considered for listing under the ESA, if it meets any of the criteria under Section 4(a)(1).
Criteria for Listing (Section 4(a)(1))
1. Present or threateneddestruction, modification, or curtailment of the species’ habitat or range. 2. Overutilization of the species for commercial, recreational, scientific, or educational purposes. 3. Decline because of disease or predation. 4. Inadequacy of existing regulatory mechanisms. 5. Natural or man made factors affecting the species’ continued existence
WHAT SHOULD ROCK HOUNDS AND FOUR WHEELERS DO?????
1 Support and vote for those politicians that support your hobby and life style.
2 Since over 6500 miles (closer to 10,000 miles now) of two track roads have been closed in the State of Utah request that any road closure require a Class III survey and if closed an equal amount of previously closed road be opened. This is the “Net-Zero” program proposed in Moab, Utah.
3 Become an active Rock Hound/Four Wheeler. Go to any meeting: Federal, State, County, City, NGO, Club, etc. that meets in your area.
4 Join – Utah 4 Wheel Drive Association (u4wda.org), American Lands Access Association (amlands.org), Rocky Mountain Federation of Mineralogical Societies (amfed.org/rocky.htm) , Blue Ribbon Coalition (sharetrails.org) , United Four Wheel Drive Association (www.ufwda.org), and local rock hound and four wheel drive clubs.
5 We need to emphasize these facts. 1. People and horses are using two track roads but ban handicapped, old/young people, and mechanical vehicles, two track roads should be open to everyone or closed to everyone. 2. BLM/FS are passing internal rules to facilitate closing roads and they do not follow the actual laws passed by congress. More about this later.
John A. (Jack) Johnston,- UAR - Public Lands Advocate