As outgoing Interior Secretary Gale Norton prepares to leave her post in less than two weeks, she has hastily enacted a policy that will likely result in destructive and unnecessary road development and off-road vehicle use in national parks, wildlife refuges, monuments, and other special public lands. The policy involves a new process for recognizing highway rights-of-way under a Civil War-era loophole known as RS 2477. The new policy could allow states and counties to perform widespread highway maintenance and construction across currently protected federal lands in the West.
In certain cases, that maintenance and construction could directly conflict with long-standing federal protections for national parks and other western public lands, with harmful impacts for rivers, streams, and archeological and cultural resources. It could also disqualify deserving places from protection as wilderness areas. For example, nine million acres of proposed redrock canyon and desert wilderness in Utah is at risk.
“By issuing this policy days before leaving office, Norton is cementing her anti-environmental legacy by further undermining necessary protections for some of our nation’s wildest public lands,” said Earthjustice attorney Ted Zukoski. “This is her parting gift to those who are interested in seeing these wild public lands developed for profit.”
Secretary Norton has not involved the public in developing the new policy, even though it will guide every agency under the Interior Department’s jurisdiction, including the National Park Service, Bureau of Land Management, and U.S. Fish and Wildlife Service. The Interior Department manages one out of every five acres of land in the U.S.
The new policy displaces the department’s existing position on RS 2477 claims in national parks, wilderness areas, wildlife refuges, and wilderness study areas. In a 2003 Memorandum of Understanding with then-Utah Governor Michael Leavitt, both Secretary Norton and the governor touted the fact that RS 2477 claims would not be considered in these special places.
Said Zukoski: “The barriers in the way of local governments’ claiming public lands formerly protected for all of us have been set so low that it has the effect of telling everyone: ‘We’re open for business. Make a claim.’ “
“The Interior Department has developed this new policy without seeking input from Congress or the public, even though it could cause damage to our nation’s premier public lands for years to come,” said. Kristen Brengel of The Wilderness Society. “This secretive scheme is typical of how Secretary Norton has made decisions over the last five years, even though these decisions have devastating impacts on the protection afforded to national parks, wildlife refuges, and other lands.”
Although some RS 2477 road claims are potentially legitimate, the Interior Department’s upcoming policy could also recognize unfounded highway claims, such as those on cattle paths, streambeds, and little-used or long-abandoned Jeep tracks that have little connection to legitimate transportation needs. These sorts of claims abound in several western states. The state of Utah, for example, submitted a map to the Interior Department in 2000, claiming that 100,000 miles of routes, including every hiking trail in Zion National Park and routes across every designated wilderness in the state, are highways under RS 2477. California’s San Bernardino County has claimed more than 5,000 miles of highways crisscrossing the Mojave National Preserve and Death Valley National Park, and Alaska has asserted 164 separate routes through 14 national parks, including Denali, totaling almost 3,000 miles.
“Units of the National Park System should not be on the table,” said Denny Huffman, former superintendent of Dinosaur National Monument in Utah and Colorado. “Secretary Norton must consider, as she has before, taking national parks out of any policy that could force road construction under RS 2477 across these iconic landscapes. Additionally, if the BLM adopts a lenient approach to highway claims on its lands, it may directly threaten neighboring Park Service units that are traversed by the same claims. A relaxed approach by BLM to a claim can point a loaded gun at the neighboring park that disagrees with a highway claim.” As an example, Huffman cited highway claims across Dinosaur National Monument, where he was superintendent for ten years.
“Ill-conceived policies that open culturally sensitive areas to road development place thousands of archaeological sites at increased risk of vandalism and destruction,” said Jerry Spangler, executive director of the Utah-based Colorado Plateau Archaeological Alliance. “The evidence is indisputable: Unrestricted road access is coequal with rampant vandalism. Improved access means greater opportunity for the unsavory and unethical to wreck havoc on archaeological treasures of national importance.”
Conservationists have expressed concern about recent testimony from David Bernhardt, the nominee for Interior Department Solicitor. In his answers to recent questions from Senators, Mr. Bernhardt did not address how the department’s ability to comply with laws that protect wildlife, water quality, and archeological treasures would be affected by allowing counties and states to perform highway construction and maintenance without studying how bulldozing, grading, and road use may undermine protection of these resource. Mr. Bernhardt also inadequately addressed whether the Interior Department would provide assurances to private property owners whose lands may be subject to disputed RS 2477 claims.
“If they truly care about private property rights, they would make a statement that the new policy will not affect private lands,” said A.J. Chamberlin of Property Owners for Sensible Roads Policy. “It’s hard to believe that the Interior Department would move forward on a final policy without consulting private landowners.”