Backcountry Snowsports Alliance
Coalition of Concerned National Park Service Retirees
Colorado Environmental Coalition
Colorado Mountain Club
Colorado Trout Unlimited
Colorado Wildlife Federation
High Country Citizens' Alliance
National Wildlife Federation
National Wildlife Refuge Association
Outdoor Industry Association
Quiet Use Coalition
Rocky Mountain Recreation Initiative
San Juan Citizens Alliance
Sheep Mountain Alliance
Southern Rockies Ecosystem Project
Western Resource Advocates
Western Slope Environmental Resource Council
The Wilderness Society
Western Colorado Congress
Winter Wildlands Alliance
|Fact Sheet on the Improper Assertion of Highways on America's Lands
In the past year, some state and local governments in the West have signaled an interest in pursuing rights-of-way on federal lands using a repealed, Civil War-era statute known as R.S. 2477. The statute was originally intended to allow highway construction across public land at a time when there were no national parks or concerns about environmental damage. In its entirety, the statute states, "The right-of-way for the construction of highways over public land, not reserved for public uses, is hereby granted."
Claiming rights-of-ways for non-existent highways including cow paths, hiking routes, or game trails is an inappropriate application of this statute, in which the plain language requires that rights-of-ways are granted only for "highways" that were "constructed" before 1976. In January 2003, Moffat County published a county-wide set of R.S. 2477 proposed "highways" that did, in fact, include cowpaths, creekbeds, and game trails, and has been urging the state to adopt a similar position.
The consequences of inappropriately addressing R.S. 2477 proposed highways are significant and wide-ranging, especially to a state like Colorado that derives significant revenue from hunting, fishing, recreation, and tourism. Our National Parks, Refuges, Monuments, Wilderness Areas, and Forests are integral to our tourism economy, and critical to elk, deer, bighorn, cold-water fish, and other species. Approving inappropriate R.S. 2477 proposed highways across these special places will have long-term negative impacts on our wildlife, water quality, and our outdoor-based economy. When counties have legitimate transportation needs, they can seek rights-of-way through an established public and environmental process known as Title V of FLPMA, thereby assuring that their efforts enhance, instead of harm, tourism and outdoor recreation dependant on healthy habitats.
Below are important points that should be considered by local, state, and federal officials when addressing the R.S. 2477 issue.
For more information, visit http://www.cmc.org/cmc/conservation/rs2477.htm
- Moffat County's Proposal Contains Invalid Interpretations of Key Legal Terms. Moffat County's approach states that R.S. 2477 rights-of-way across National Parks and other public lands can be granted where routes were established by "mere use of the public," without any construction. This interpretation conflicts with the law itself (which requires "construction"), with a recent federal court decision in Utah, and with the George W. Bush administration, which told a court last year that R.S. 2477 did "not provide for the establishment of a right-of-way based on the public's mere 'use' or 'passage' over the public lands," but required instead purposeful construction.
- Colorado's House Delegation Supports Protection of National Parks and Special Places. Moffat County's approach would permit old foot and horse paths through now-protected areas like National Parks to be claimed as "constructed highways," raising the threat that real highways could follow. This position is contrary to that of Colorado's entire House delegation. On July 17, GOP Reps. Beauprez, Hefley, McInnis, Musgrave and Tancredo voted for an amendment to bar 2004 Interior Department funds for recognition of R.S. 2477 claims (under a new regulation aimed at speeding approval of such claims) for lands within National Parks, National Monuments, National Wildlife Refuges, wilderness study areas, and designated wilderness areas. Reps. DeGette and Udall opposed the amendment because they wanted to go further and block the Interior Department from recognizing R.S. 2477 across any lands under the new rule.
- R.S. 2477 Impacts Private Property. While R.S. 2477 granted rights for highway construction across unreserved public lands, it applies to hundreds of thousands of acres of private lands that were once public and later became private under the Homestead Act or mining law provisions. Adopting loose standards for what constitutes a "constructed highway" under R.S. 2477 will make it easier for counties or others to press for highways over private lands. Some Colorado private landowners have already had gates ripped down, and suffered trespass by those claiming rights-of-way.
- R.S. 2477 has Financial, Legal, and Operational Consequences. With rights come responsibilities. Should a county press numerous right-of-way claims as envisioned by Moffat County's draft, the County may face financial burdens for route maintenance, signage, liability, law enforcement, and management. Moffat County's approach may also force counties to face costly, time-consuming and contentious political decisions to open or close routes to certain uses, or to abandon them altogether.
- Colorado's Awe-inspiring Lands Owned by all Americans Deserve Protection. Our National Parks, National Monuments, National Wildlife Refuges, Wilderness and wilderness-quality lands are tremendously important as places of tranquility and beauty, sources of drinking water, and recreation areas, and are crucial to our tourist economy and quality of life. As America's public lands, they should be carefully protected and deserve to be treated with consistency across county - and state - boundaries. Moffat County's approach won't do this.
- Colorado Needs a Consistent, not Piecemeal, Approach. The Interior Department's current approach - negotiating separate and potentially different deals with each state, or perhaps even with individual counties - will lead to chaos on the ground where county and state boundaries meet. A nationally consistent process that takes local variations into account is far more sensible and rational.
- R.S. 2477 Demands a Careful, Thoughtful, and Federal Solution. Because R.S. 2477 is a federal issue that affects federal lands such as National Parks, Forests, Refuges, and Monuments, it deserves a national solution with plenty of input from states, counties, and citizens. Solutions must involve:
- Comprehensive opportunities for the public to be heard;
- Established deadlines for asserting claims of RS 2477 "constructed highways";
- Heightened protection for National Parks, Wildlife Refuges, and other special places; and
- Standards that ensure only "highways" that were truly "constructed" be recognized, per federal case law.
or contact TJ Brown at the Colorado Mountain Club at 303.859.9565, Ted Zukoski of Earth Justice at 303.996.9622, and Michael Saul of the National Wildlife Federation at 303-786-8001.