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QUESTIONS AND ANSWERS: Final Rule on Recordable Disclaimers (1/6/03)

What rule change was made on January 6?

The Department of the Interior (DOI) has made changes to federal regulations regarding "recordable disclaimers" of interests in lands. The regulations generally permit the US government to issue a document renouncing any interest in a particular piece of land when the US government has no valid claim to such land.

The changes to the rule relate to whether states, counties and local governments can benefit from such disclaimers, even when they aren't recorded as owners of any land at issue. The changes also permit states and local governments to ignore a statute-of-limitations requirement that applies to all other property owners.

Is this a minor change, as BLM contends? Why not?

This is a MAJOR change. Through this rule change, the Administration is trying to make it easier for the DOI to hand over to local governments rights-of-way to cow paths, horse trails, river-beds, and dirt bike and off-road vehicle routes that criss-cross public lands, including National Parks, across much of the West and in Alaska, using an ancient mining law known as RS 2477. These paths, trails and routes could then be bulldozed, made into paved highways or otherwise developed. RS 2477 was adopted in 1866, and repealed 27 years ago.

The effect of granting these rights-of-way through the rule change is that much of our public lands in the West and in Alaska may no longer qualify for permanent protection as wilderness, and our National Parks could be impacted by significant road-related development. Road and highway development on these "roads to nowhere" will destroy and fragment wildlife habitat, cause erosion, degrade water quality, spread weeds, and harm archeological sites. Previous reports by the National Park Service have concluded that the impacts of RS 2477 on Parks "could be devastating," and found that granting such claims "would undoubtedly degradate most [Park] values and seriously impact the ability of the [National Park System] to manage the [Parks] for the purposes for which they were established."

Places at risk where local governments have made claims based on RS 2477 to roads to nowhere include: Denali National Park (AK); Grand Staircase-Escalante National Monument (UT); Mojave National Preserve (CA); and Canyonlands National Park (UT).

Has DOI ever before used this procedure to address RS 2477 before?

NO. While the law permitting DOI to issue disclaimers was issued more than 25 years ago, this rule change is the FIRST time that DOI has ever stated that the disclaimer rule could be used to surrender the public lands for development under RS 2477.

What lands are affected by the rule change?

DOI asserts that the rule applies to ALL Federal lands – including lands managed as National Parks, National Forests, National Wildlife Refuges, wilderness areas, National Recreation Areas, and even military bases and training areas. These lands total hundreds of million acres.

Will the Federal government analyze the impacts of surrendering sensitive lands to local governments for highway development before it gives up the right-of-way?

NO. DOI makes clear in the rule that it will NOT analyze the environmental effects of either: (a) this rule change; or (b) ANY decision to hand over the right to develop an individual "road to nowhere," no matter how sensitive the lands the route crosses.

Isn't this proposal a good way to involve the public and reduce litigation?

While the public may comment on a decision to disclaim interest in lands, the process of determining whether a valid right-of-way exists is not open to the public. The DOI says that the public will have no chance to appeal right-of-way and disclaimer decisions; court action will be the only way to challenge decisions degrading sensitive lands.

Can the states and counties obtain rights-of-way across federal lands for legitimate purposes without resorting to lawsuits?

YES. Even without the disclaimer rule, states and counties may apply for and obtain rights-of-way under provisions of Title V of the Federal Land Policy and Management Act (FLPMA), the 1976 law that repealed RS 2477. These provisions require, among other things, an analysis of environmental impacts of granting the right-of-way. In Alaska, Title XI of the Alaska National Interest Lands Conservation Act (ANILCA) provides an additional way for the state and private parties to obtain rights-of-way across National Parks, Refuges, and Wilderness Areas. Issuance of a Title XI right-of-way also requires a careful environmental analysis and public participation.

Isn't it hyperbole to state that there are an avalanche of road projects that will be unleashed by the decision?

No. Counties and states are poised to press thousands and thousands of these claims. The State of Utah sent a letter to DOI in 2000 claiming more than 10,000 individual routes across public lands. The State of Alaska has already identified more than 650 right-of-way claims. The new rules will mean that it can request "disclaimers" on some or all of them. In addition, in comments on the rule change, San Bernardino County (CA) expressed concern about bearing the cost of processing multiple RS 2477 claims through the disclaimer rule "because the number of claims the county might potentially file could create a financial burden" on them. This from a county with a 2003 budget of $2 billion+; which includes $161 million for public works. Gilpin County (CO) and Valley County (ID) also expressed concerns about how DOI would address cost issues when counties submitted multiple claims. After the rule change was announced, Moffat County (CO) moved to finalize numerous claims that could result in development of scores of new roads on cow paths and other trails through Dinosaur National Monument, a wildlife refuge, and half a dozen wilderness study areas.

Why is this proposal different than the RS 2477 resolution proposed by Secretary Babbitt in 1994?Secretary Babbitt's proposed rule would have set clear, concise standards for determining when a state or local government has obtained a right to use a specific route. The disclaimer rule sets no such standards. DOI Deputy Secretary Steven Griles told Alaska industry officials that the Department would use standards that pre-dated even the lax standards of James Watt's tenure as DOI Secretary.

Secretary Babbitt's proposed rule permitted any affected person to appeal to the Bureau of Land Management any decision on a particular route. DOI says that the disclaimer rule permits only "applicants or claimants" with an interest in the land to appeal, not the concerned public.

Is this rule change legal?

No. In 1997, Congress prohibited DOI from issuing final rules related to RS 2477; the General Accounting Office (as well as DOI previously) concluded that this prohibition was permanent. In addition, Congress did not intend for DOI to use the disclaimer rule to be used to address RS 2477 rights-of-way when it passed the Federal Land Policy and Management Act in 1976. The rule is inconsistent with current law because it permits counties and local governments to avoid the 12-year statute of limitations on filing claims to roads to nowhere.