Winter 2003 - The Bush Administration

Winter 2003 - The Bush Administration

Trails Turned Roads
by Leanne Josephson
Photos by Photographer

In 1897 Jack Post crossed the shoulder of Bear Mountain and screamed to his companions, "I’ve found it! I’ve found it!" So began the Mount Baker gold rush. Prospectors hoping to make quick fortunes struck out for the gold fields in the largely uncharted forests of the North Cascades.

The impact of the Mount Baker gold rush was not just in the gold mined from the mountains, but in the trails, roads and bridges men built while looking for riches. Today, lands in the Mount Baker area are scarred with old miners’ trails.

A few of the mining trails have been turned into paved roads, but most have been converted into hiking trails or are so overgrown they are unrecognizable.

But a new Bush administration policy will make it easier to open up old mining trails — which are now in the Mount Baker-Snoqualmie National Forest, and federally protected park and wilderness areas — to paving and off-road-vehicle access.

On Christmas Eve, while Americans wrapped presents and decorated trees, the Department of the Interior quietly announced a new rule. The rule, published in the federal register Jan. 6, 2003, makes it easier for states, local governments and individuals to claim right-of-ways on federal lands.

Though the wording sounds innocuous, conservationists, members of Congress and the National Park Service said the rule has the potential to devastate wilderness and national park areas throughout the western United States and Alaska.

The rule allows individuals and governments the right to claim roads, mining trails, cattle paths and wagon trails in environmentally protected areas through a "recordable disclaimer of interest."

A disclaimer of interest is a document that states that the federal government is no longer interested in a particular piece of land. When exercised, it could create a spider web of non-federal control over public lands. Individuals and state and local governments could control rights to dirt roads, overgrown paths and old mining routes in federal forestlands and national parks.

"Potentially, you could have road construction over hundreds of miles of park (which would) destroy vegetation, destroy wildlife habitat, (give) easier access to and destruction of archeological resources," said Ted Zukoski, project attorney at Earthjustice in Denver, a non-profit law firm that protects natural resources and wildlife. "There is tremendous potential for ecological degradation."

Erik Burge, education coordinator for the Pacific Northwest Trail Association, said he estimates there are 500 miles of potential claims in the Mount Baker-Snoqualmie National Forest, including 75 miles of claims in the Mount Baker district alone.

A press release from the Bureau of Land Management, the agency responsible for the rule change, said the rule will eliminate the need for private lawsuits and simplify land ownership disputes.

John Styduhar, realty specialist at the BLM Oregon state office, said people exaggerate the impacts of the rule change.

"I don’t see states and counties staking a lot of claims because they then take responsibility for that public highway (and maintenance)," he said.

But conservation groups, including the Wilderness Society, are anxious.

"The concern is (people) would claim a right-of-way ownership and try to turn that route into a road," said Mike Anderson, senior resource analyst with the Wilderness Society.

Environmentalists are concerned with people "bulldozing through the mountains, damaging the streams and vehicles traveling into endangered species habitats," he said.

the history
The rule resurrects a 130-year-old law: Revised Statute 2477. The Civil War-era law was passed when Jesse James was robbing banks and a horse-drawn carriage was the accepted means of travel. It was meant to encourage Western settlement and resource extraction.

The law, part of the 1866 Mining Act, states: "And be it further enacted that the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted."

In those days, very little land was reserved for public use. The law was basically blanket permission for governments to build and maintain roads on federal land.

Despite pressure from mining companies, Congress repealed the law in 1976 with the passage of the Federal Land Policy and Management Act. But: If a road had been in use prior to 1976 it could still be claimed under RS 2477.

The statute became an issue again when Donald Hodel, Interior secretary under President Reagan, loosened the interpretation of the statute. Horse paths, foot paths and primitive trails could all be considered valid right-of-ways.

This move was popular in much of the West where states fought against federal land ownership. In Utah, county commissioners used bulldozers to tear "roads" into proposed and existing wilderness areas, trying to disqualify the areas from federal protection.

When Clinton’s Secretary of the Interior, Bruce Babbitt, attempted to tighten the road policy, Congress put a moratorium on all RS 2477 policy changes. Babbitt responded by blocking his department from processing RS 2477 claims.

RS 2477 was in a political chokehold. That changed on Christmas Eve 2002. The Bush administration issued a rule change creating a new method for individuals and governments to claim right-of-ways under RS 2477. The administration went around the bottleneck.

Under prior regulations and laws a recordable disclaimer of interest couldn’t be used to disclaim an interest in a RS 2477 right-of-way. Now it can, Zukoski said. This change makes it easier to claim federal land.

"(The Department of Interior) states unequivocally that this (recordable disclaimer of interest) rule can and always could have been used to apply to RS 2477 rights-of-way," he said.

Styduhar said, however, that the BLM is still looking at the rule and whether it can be used to claim right-of-ways.

national impacts
According to a 1993 NPS memo by Martin Ott, Utah state coordinator for the NPS, more than 17 million acres of Park Service land in Utah could be affected by right-of-way claims. The memo called impacts potentially devastating.

The memo states: "Possible RS 2477 right-of-ways in NPS areas could cross many miles of undisturbed fish and wildlife habitat, historical archeological resources and sensitive wetlands."

The memo continues, stating that RS 2477 claims would impair the ability of the NPS to manage the parks for the public.

The biggest environmental impacts from the rule will be in Alaska, Utah and Idaho, said Doug Scott, policy director of the Campaign for America’s Wilderness, a non-profit environmental organization.

RS 2477 applies only to unreserved public land, which is land that is not reserved for other uses such as national parks, national forests and military bases, Scott said. President Theodore Roosevelt made much of the federal land in Washington state into national forests in the 1900s, thus reserving the land. Almost all right-of-way claims would have to be traced back over 100 years in Washington state.

"(Washington land is) a good deal less susceptible to this claim," Scott said. "But if anyone asserted (a right-of-way in Washington) park and forest defenders would fight them to the death."

Utah’s Canyonlands National Park is much more susceptible to claims. The park wasn’t created until 1964, so a claim would be more modern and easier to document.

"In Alaska and Utah, if they get away with this crap, they create a spider web of land bisecting the federal land, and that’s the problem," Scott said. "In Utah it’s a very real threat. (That’s why) the headquarters of the RS 2477 campaign is in Utah and southern Idaho and Alaska, not in Washington state."

Washington’s reserved areas are older than most, but that does not mean its parks and wildlife preserves are necessarily safe. Hannegan Pass, Ruth Creek, Twin Lakes and Shuksan were all part of the Mount Baker gold fields, and are thus areas ripe for potential claims.

Excelsior Pass, which climbs up from the north fork of the Nooksack River in the Mount Baker-Snoqualmie National Forest, is an example of one local trail where individuals and governments could claim a right-of-way, Burge said.

Prospectors used to shoulder their packs and provisions up to the Excelsior Mine. Today, hikers frequent the rocky trail.

"To me that trail fits (the scenario of a potential claim) the most of any in the northern part of the district," Burge said.

Officials with the NPS and the National Forest Service said they don’t know how on where the rule change could potentially impact lands in Washington.

"I don’t have an answer at this point," said Nancy Stromsen, management assistant for the Columbia Cascades support office of the NPS.

Ron DeHart, public affairs staff officer for the NFS, gave a similar response.

"The Forest Service is not in the loop in this one," he said. "We haven’t seen it. We don’t understand how it applies to anything we manage. We don’t have anything for our agency from the Washington level on what it means."

public access
While environmentalists prepare to fight RS 2477 claims through the legal system, public access groups greet the rule enthusiastically.

"(RS 2477) is a very positive thing," said Bill Dart, public lands director of the Blue Ribbon Coalition, a wise-use organization that wants access to public lands for recreational purposes. "It means that some of the roads and trails that people use to access some of their favorite spots, they’ll still be able to use potentially. (But) if you are a person desiring more wildernesses, it is not a positive and it may limit some areas from being considered."

Chuck Cushman, executive director for the American Lands Rights Association, a wise-use organization, also agreed with the rule.

"It’s going to be good for hunters and fishermen because it will keep federal agencies from closing off access to lands," he said.

While many people fear RS 2477 will make it easier to pave over backwoods roads, Dart said he disagrees.

"Yes, it makes it tougher to eliminate access, but it does not give them permission to pave over a backwoods trail," he said.

Dart said that even if a person or government wanted to pave over a trail, they would still have to go through regular environmental protection processes.

But, Scott said, environmental protections on non-federal lands are inadequate.

"(There are) hardly any decent environmental laws regarding state and local governments," Scott said. "Instead of a park superintendent or a federal land manager, it would be some board or county supervisor making the decision. (RS 2477) is a very big threat."

Dart also said he disagreed that increased access to wilderness areas would be harmful to the environment.

"Anybody who has done much study of environments will quickly learn that man has an incremental ability to affect the landscape," he said.

Pollution, habitat fragmentation and wilderness destruction by off-road vehicles is not a small effect, Scott said.

"Today there are 7 million miles of roads in the United States, and I’m not talking about jeep trails, I’m talking about roads, and places that were very large expanses left for wildlife and wilderness have been crisscrossed and penetrated by roads to a very unfortunate degree," he said.

Scott called RS 2477 an attack on United States’ natural heritage.

"All the time the American people have been working so hard to get places protected as national parks and wilderness areas, a lot of that good can be undone (by RS 2477)," he said.

Winter 2003 - The Bush Administration

Trails Turned Roads by Leanne Josephson Photos by Photographer

Trails Turned Roads
by Leanne Josephson
Photos by Photographer