Utah's First Road Claim Under New Regulation Tainted by Shoddy Evidence

Conservationists expose origin of federal highway


Kristen Brengel, The Wilderness Society, 202/429-2694


Heidi McIntosh, Southern Utah Wilderness Alliance, 801/486-3161, x15


Ted Zukoski, Earthjustice, 303/996-9622

Utah this weekend moved a step closer to taking control of federal public land when the Interior Department began considering the first of potentially thousands of highways the state has claimed under the repealed and outdated law known as R.S. 2477. But conservationists have unearthed evidence that the claimed Juab County route — the 99-mile Weiss Highway in Utah’s west desert region — was built by and for the U.S. government, meaning that it cannot be claimed by the state under the R.S. 2477 loophole.

Utah is claiming the highway under the controversial January 2003 “disclaimer” regulation issued by the Interior Department and an equally controversial April 2003 agreement between Interior and Utah. Even under the relaxed standards of the administration’s new approach, Utah’s precedent-setting first highway application fails to provide the kind of evidence needed to prove its claim — namely that the state or county constructed a highway across federal lands not set aside for some special use.

“Utah’s application contains only some maps, present-day pictures of the road, and a few stories from old-timers,” said Kristen Brengel of The Wilderness Society. “Now it turns out the U.S. built and owned this road all along. If the Interior Department gives away public land based on such an obviously defective claim as this, it would set a precedent for all the thousands of claims that now hang over our western lands. The end result could be a spiderweb of roads across our national parks, national wildlife refuges, potential wilderness areas, and other public lands.”

R.S. 2477 was repealed by the Federal Land Policy and Management Act of 1976, which replaced the old land-grab law with a modern, comprehensive process for establishing rights-of-way on federal lands. But in January 2003, the Interior Department issued a “disclaimer” regulation to speed up road claims under R.S. 2477 that may have existed before 1976. If approved by the Interior Department, the Juab County claim would represent the first giveaway under the new disclaimer regulation. Its importance lies in the fact that it is widely viewed as a national precedent for thousands of potential claims under R.S. 2477, covering thousands of square miles of federal lands, and other lands that now are private property or belong to states or other entities. In February 2004, Congress’s research arm, the General Accounting Office, concluded that the administration’s approach in Utah is illegal.

“The Bush administration has been working in a stealthy and illegal way to undermine protection of America’s public lands in Utah,” said Ted Zukoski of Earthjustice. “The implications are huge, because Interior Department officials have publicly said they’re waiting to see how this highway claim plays out before moving forward on other applications in Utah and elsewhere.”

According to Zukoski, several states, Utah and Alaska chief among them, hope to use R.S. 2477 to assert thousands of road claims. In Utah, the claims include routes in the Grand Staircase-Escalante National Monument and in millions of acres of wilderness-eligible lands in Utah’s red rock country. Other claims threaten Mojave National Preserve in California, Dinosaur National Monument in Colorado, and even Denali National Park in Alaska.

“Because many of these R.S. 2477 claims threaten streams, wildlife habitat, canyons, rivers, mountains, and archaeological treasures that are all part of our heritage, the stakes are incredibly high,” said Heidi McIntosh of the Southern Utah Wilderness Alliance. “This issue is too important to allow the state to sidestep existing law. Utah needs to do a better job of substantiating its road claims so we can honor legitimate road claims while protecting the places we care about.”

“The historical record we dug up — and that the state, after spending $8 million, didn’t find — shows that this is a federal road built by federal employees with federal funds to give federal livestock permitees access to their federal leases,” said Lawson LeGate, Sierra Club Senior Southwest Regional Representative. “Given this record, it is hard to see why the state of Utah thinks that this is a good example of a county right-of-way.”


For documents related to Utah’s Juab County claim, visit http://www.wilderness.org/Newsroom/index.cfm and follow links.

For copy of formal comments submitted by The Wilderness Society, call Kristen Brengel at 202/429-2694.

For more information on R.S. 2477, visit http://www.highway-robbery.org/

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