RS 2477 Roads: Deal Struck by Dept. of Interior and State of Utah
By Toni Thayer
The State of Utah and the U.S. Dept. of Interior entered into an agreement that many are hoping will resolve the bulk of the R.S. 2477 road issues. Utah Governor Mike Leavitt and Secretary of Interior Gale Norton signed the memorandum of understanding (MOU) on April 9th.
R.S. 2477 is the provision in federal law passed in 1866 that granted right-of-ways over public lands to the counties for construction of highways that became the transportation network allowing settlement of the western frontier. Under an R.S. 2477 right-of-way, the counties have control of the road, and the right is perpetual as granted by Congress. According to the Utah Association of Counties’ webpage, “approximately 90% of all roads in Utah's ten southern counties are R.S. 2477 rights-of-way.”
In 1976, Congress passed the Federal Land Policy and Management Act, giving title of all roads constructed after that date, and crossing public lands, to the federal government. The federal government has control of these “Title V” roads and gives the counties an easement for use. Any work outside of a road’s current scope must go through an environmental study and be approved by the federal government. Title V use is not guaranteed to the counties and may be withdrawn by the federal government.
In the past, disputes have arisen between the federal and county governments over control of roads crossing public lands and their correct classification, as either “RS 2477” or “Title V”. On June 14, 2000, the State of Utah sent a Notice of Intention to File Suit over Utah’s RS 2477 roads to the Secretary of Interior. In preparation for the legal challenge, the counties inventoried and mapped their roads and gathered historical information to support their claims.
According to Governor Leavitt in an April 9th teleconference, the recently signed deal establishes an administrative process whereby the counties will apply to the Bureau of Land Management (BLM) for an “Acknowledgement”, their acceptance or denial of certain roads as RS 2477. The MOU states that the counties will reimburse BLM for “the reasonable and necessary cost of processing each request”.
This submittal by the counties will initiate BLM’s standard public comment, decision-making and appeal processes. If BLM approves the RS 2477 status, they issue a disclaimer and record it at the county recorder’s office. At any time prior to actual recording of the disclaimer, the counties may withdraw their application.
The agreement hinges on seven touchstones as requirements for those roads that the counties may submit to BLM for their administrative decision. The touchstones are:
Utah Senator Tom Hatch said in an Apr. 14th telephone interview, “I’m cautiously optimistic. It’s a step forward. My biggest concern is the scope of the right-of-way and how we actually administer it.”
He went on to explain, “The innocent grader who works on a road that meanders from 12 feet wide, to 15 feet, then to 30 feet, and back to 12 feet may have a difficult time determining where the disturbed area ends and begins. Someone may see the grading variance and complain that it’s new disturbance. I would have felt more comfortable with a standard roadway width, like 50 feet in the BLM handbook.”
Hatch said he received briefings from Gov. Leavitt throughout the deal negotiations but that the governor did not directly seek his input. In fact, most of the county commissioners in Utah were kept in the dark during the negotiations and were informed after the fact in a presentation by Gov. Leavitt, even though all county commissioners originally voted to participate in the State’s road lawsuit.
The county commissioners who did work on the behind the scenes dealmaking were the representatives from each county involved in the State’s pending lawsuit, the RS 2477 litigation committee.
Maloy Dodds, Garfield County Commissioner, is Chairman of that committee. In a telephone interview on Apr. 14th he said, “It’s not perfect. The good part is that we’ll be able to get a determination of an RS 2477 for the majority of roads. The bad part is that the scope’s a little vague. The MOU withdraws the Babbitt policy for use in Utah, and it probably won’t be long before it’s withdrawn in other areas.”
Dodds went on, “The Dept. of Interior came up with the disclaimer of interest idea several months ago, and in Utah, the governor was the driving force behind the agreement with recommendations made by the committee. The committee’s future duties will include getting the process and the steps written down and setting up a timetable.”
Kane County Commissioner Mark Habbeshaw expressed reservations over the new agreement in an Apr. 14th telephone interview, "The terms and conditions of the MOU appear to modify the existing scope granted under R.S. 2477 by restricting county road work to maintenance within the disturbed area. Any construction projects will require a BLM Title V permit, primary control and authority over the road will transfer from the county to the BLM on roads submitted to this process. It might be in the county's best interest not to compromise valid existing rights."
According to Dodds, the standards for maintenance and repairs remain the same, “None of that has changed. We’ll be operating just like we always have.”
Utah Rep. Mike Noel has concerns over the MOU’s scope, particularly the “where is, as is” criteria. “It depends on what roads we settle on, which ones we end up with. I’m nervous about our “D” roads and our ability to expand and upgrade them if things change in the future.”
Noel also disagrees that the new administrative process is better than the Dept. of Interior’s Hodel Policy that was the counties’ guidelines for many years. “We could expand the road as the need required, and we didn’t have to go to the federal government for approval or through this type of administrative process.”
Noel is extremely happy that Sec. Norton has thrown out the Babbitt handbook on the wilderness reinventory and withdrawn 3 million Utah acres slated for the more stringent designation and gives credit to Gov. Leavitt for this deal.
Time will tell whether a federal administrative process will speed up road status determinations or whether it might slow the final outcome due to public comment, appeals and separate lawsuits on individual roads. And the counties will ultimately discover how much control, if any, they have lost as they continue with their daily maintenance.
Toni Thayer firstname.lastname@example.org
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Escalante, UT 84726
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