OMRA Legal News

Bush opens up backcountry trails to vehicles

By ROBERT McCLURE
SEATTLE POST-INTELLIGENCER REPORTER

Jan. 1 - The Bush administration, in a move that has outraged environmentalists, is about to hand a big victory to Westerners who want to use a post-Civil War-era law to punch dirt-bike trails and roads into the backcountry.

Untallied thousands of miles of long-abandoned wagon roads, cattle paths, Jeep trails and miners' routes potentially could be transformed into roads -- some of them paved. Many crisscross national parks, wildlife refuges and wilderness areas.
Scheduled to go into effect shortly, the rule change was greeted warmly by off-road vehicle enthusiasts, whose numbers have exploded in recent years. Many oppose attempts to fence off wilderness areas where mechanized vehicles are banned. Where miners and wagons trains went, so should dirt bikes, they say.
"We consider it a pretty substantial gain," said Clark Collins, executive director of the Blueribbon Coalition, an advocacy group for snowmobilers, dirt-bike and all-terrain-vehicle riders and 4X4 enthusiasts based in Pocatello, Idaho.
"That historic use in our view should provide for continued recreational use of those routes," he said. "The government should not be allowed to close those routes."
Environmentalists say the amount of noise pollution, erosion, water pollution and other harm done to the backcountry will depend largely on how the rule is handled by the Bush administration. And they're worried.
"I don't think Congress in 1866 meant to grant rights of way to off-road-vehicle trails," said Heidi McIntosh of the Southern Utah Wilderness Alliance. "This is flying under the radar screen, but I can't think of another initiative the Bush administration is pursuing that would have a more lasting and significant impact on public lands."
In Washington state, huge areas -- including parts of North Cascades National Park -- are honeycombed by old mining trails that could be promoted by off-road-vehicle devotees as open to motorized traffic.
Other national parks that could be affected include Grand Canyon, Death Valley, Joshua Tree, Denali, Wrangell-St. Elias and Rocky Mountain. A 1993 National Park Service report said the impact across 17.5 million acres in 68 national parks could be "devastating."
The law was originally passed when Jesse James was just starting to rob banks and the U.S. cavalry was still fighting Indians. Seattle did not yet have a bank or a public schoolhouse.
It made federal land available for wagon roads, miners' trails and other transportation routes. Its purpose was to open the West to settlement. It would be nine years after the law's passage before the internal combustion engine was invented. Decades would elapse before many newfangled automobiles were scooting around the landscape.
The rule change announced on Christmas Eve by the Bush administration rolls back severe restrictions slapped on the use of the law under the Clinton administration.
"We're really concerned about this because it seems like the administration is encouraging (road) claims that will affect the parks," said Heather Weiner, Northwest director for the National Parks Conservation Association.
Outside national parks, wilderness areas set aside by Congress in national forests and other federal lands also are in play.
"It would disrupt the quiet and the feeling that you're away from civilization," said Seattle activist Pat Goldsworthy.
Lots of land is at stake. In California alone, 19 wilderness areas and proposed wilderness areas could be affected. A full accounting of such areas in Washington apparently has not been compiled, but the Alpine Lakes, Pasayten, Glacier Peak, Stephen Mather and Mount Baker wilderness areas all contain old miners' trails.
"You name it, miners have been everywhere" around the West, said Seattle attorney Karl Forsgaard, an environmental activist. "So keep that in mind."
The one-sentence, 21-word statutory provision in question, known as Revised Statute 2477, was part of the nation's first general mining law, passed July 26, 1866. It says, "The right of way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted."
The idea was to induce miners to continue to fan out across the West and settle it. To do that, they needed roads, or at least what passed for roads in those days.
That law and its replacements in 1870 and 1872 gave miners the right to buy public land for $5 an acre or less if they did work necessary to discover minerals on the land. Those prices remain in effect today.
A few years earlier, Congress had passed the Homestead Act, which provided cheap land to settlers willing to build ranches, farms and homes on the acreage. That law was repealed in 1976.
That was the same year Congress repealed the roads-for-lands provision of the old mining law. However, at the time Congress gave states and counties 12 years to settle their old road claims. Ten years later, Congress in effect extended the deadline. But the Clinton administration fought most attempts to turn wilderness into roadways.
Now, the Bush administration says it will finalize a rule giving Western states, counties and cities -- some avowedly hostile to federal control of wilderness areas -- a better chance to enforce those claims.
The Clinton administration made it difficult to get the Interior Department's Bureau of Land Management to approve the road claims. A burst of litigation resulted, much of it in Alaska and Utah. In Utah, some 15,000 road claims are at issue; Alaska's state government has identified about 650.
In Utah, county governments angry about the establishment of a national monument have become embroiled in a fight over the issue. The state sued the federal government.
And in Alaska, the state government contends that even some section lines -- the imaginary grid that marks off every square mile in the nation -- are subject to the provision and can be claimed as roads. Until now, proving that would likely have involved an arduous legal battle.
Under the Bush policy, though, the BLM can process the claims more readily as an administrative action.
It makes sense, says the Bush administration, because it saves state and federal taxpayers money on court costs.
"The department felt this allowed them to address the . . . issues in a more straightforward way," said David Quick, a BLM spokesman.
Stephen Griles, a former mining lobbyist who serves as the No. 2 official in the Interior Department, told a pro-development group in Alaska that the rule change was spurred in part by the advocacy of the Western Governors Association.
"The department is poised to bring finality to this issue that has created unnecessary conflict between federal land managers and state and local governments," Griles told the Resource Development Council in November.
Griles told the group the rules would be "consistent with historic regulation prior to 1976."
What's changed since then is that sales of off-road vehicles, particularly three- and four-wheeled all-terrain vehicles, have skyrocketed. Enthusiasts have started to fight to maintain access to back-country trails.
Meanwhile, environmental activists are trying to declare additional areas off-limits to the off-road vehicles, saying they disturb wildlife and hikers, cloud up streams and cause erosion of trails and hillsides.
The new rule could help put to rest a controversy over a related Clinton-era policy, said the Blueribbon Coalition's Collins. A Clinton policy banned most logging, mining and other commercial uses in 58.5 million acres of national forests where no roads are built.
But under the new policy, if states, counties or others are able to establish a network of legally recognized "highways" through those acres -- even if the highways are dirt roads or something less -- it would give those fighting the so-called "roadless" proposal ammunition.
At least that's what Collins hopes.
"That's why we have a real interest in it," he said. "It does have the potential to influence this debate."
In national forests, those trying to open a route to motorized travel would have to show that the route existed prior to the establishment of national forests -- around the turn of the last century for most places in the Pacific Northwest. In many places, though, miners preceded establishment of the forests. Old maps can pinpoint their routes.
"You're talking about going back and doing some fairly detailed research in old historical documents," said Paul Turcke, a Boise, Idaho, attorney who represents off-road-vehicle enthusiasts, including the Blueribbon Coalition.
It's clear that counties and states have the right to try to open up the old routes. Cities would, too, under the new rule. It remains to be seen whether private groups such as off-road-vehicle clubs could sue to open the routes.
"If I had to predict, I would say the trend is going to be toward more private interests being involved," Turcke said.

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P-I reporter Robert McClure can be reached at 206-448-8092 or robertmcclure@seattlepi.com