Environmental Protection and Common Sense v. Principle
Death Valley protected from attempt to use old, repealed law to put dirt bikes in National Park wilderness I have spent most of my working life for the past five years trying to stop old cow paths and jeep trails from becoming two-lane highways through national parks, wilderness, and other protected areas of federal land….
Death Valley protected from attempt to use old, repealed law to put dirt bikes in National Park wilderness
I have spent most of my working life for the past five years trying to stop old cow paths and jeep trails from becoming two-lane highways through national parks, wilderness, and other protected areas of federal land. Last week, we stopped one county from turning obscure paths through designated wilderness in Death Valley National Park from becoming playgrounds for dirt-bikes, all-terrain vehicles and other “off-highway vehicles.”
The law at stake in Death Valley – and over hundreds of millions of acres across the West – is a repealed, 19th Century loophole known as RS 2477 to claim old paths are “highways” that the federal government can never close. The law did allow for rights-of-way for the construction of highways across federal public lands prior to 1976, as long as the land wasn’t set aside for some other use, like a national forest, national monument or national park. The law, adopted in 1866, was meant to safeguard investments in infrastructure over the wide-open West when there was such a thing.
Over the last few decades, however, some extremist counties have viewed RS 2477 not as a shield to protect legitimate transportation needs but as a sword to defeat protections for wilderness, wildlife, and water quality on federal lands.
For example, Kane County, Utah, ripped out federal closure signs and placed its own signs opening routes to off-road vehicles in the Grand Staircase-Escalante National Monument. They did this on routes federal land managers had closed to protect the Monument from damage from off-road vehicles. And the county had never bothered to prove that the routes met the standards for R.S. 2477 rights-of-way.
In Death Valley, Inyo County claimed four routes as highways. Three of them were routes that the county never maintained, as far as anyone can tell. These three are all within areas that the federal government found had no roads at all in 1979, and that Congress designated as wilderness in 1994. One of the three routes drops over a huge cliff. In short, these alleged “highways” are hardly the life-blood of travel or commerce in the county.
So why is Inyo County spending its precious staff time and effort trying to pry open roads through the largest national park in the lower 48? They say it’s a matter of “principle." The federal government shouldn’t close “our roads,” they say. Never mind that the county has no real need for the “roads,” that it would cost the county money to maintain the “roads” that few have ever used, or that opening the “roads” will harm habitat for threatened desert tortoise, bighorn sheep and other wildlife, or that opening the “roads” to dirt-bikes and ATVs may lead to damaging illegal use off the “road.” It’s the principle of thing – once a road, always a road.
Principle lost out to law this time. Under the law, counties must still prove their claims in federal court if they want to challenge federal ownership. Congress provided only one way to do that: through something called the federal Quiet Title Act. And that law has a 12-year statute of limitations. That means that if federal land managers have put the county on notice more than 12 years that they didn’t think a highway existed – for example, by protecting the area for its wilderness character – then the county can’t waltz in later and say "that’s our highway." The federal court in this case ruled Inyo County had waited too long.
This was a good one to win in court. When common sense gets counties to value their natural surrounding instead of using a 140-year-old law to turn old trails into dirt-bike race tracks, then we’ll REALLY be making some progress.
Ted was an attorney in the Rocky Mountain regional office from 2003–2018. He protected wilderness, roadless areas and the planet's climate on behalf of conservation groups in the Four Corners' states.