Who has a right to the roads?
In Jamestown, Colo. a frustrated landowner took matters into his own hands over four-wheelers crossing his property to play in the national forest.Homeowners of the tiny town west of Boulder convinced county commissioners there to close a public road because they said off-road vehicles were threatening their water supply.In Moffat County, in northwestern Colorado, commissioners have claimed 240 miles of roads on federal lands as county rights of way. Some of those roads travel through the Browns Park National Wildlife Refuge and Dinosaur National Monument.In Utah, county commissioners have opened Bureau of Land Management Wilderness Study Areas to off-road vehicles in such popular recreation areas as Behind the Rocks, near Moab, and Arch Canyon, Grand Gulch and Cedar Mesa, southwest of Blanding.Counties across the country have laid claim to roadways on federal lands under a historic law passed after the Civil War to encourage settlement of the western frontier. They’ve also used it to foil private property owners’ attempts to block access to public lands.
Revised Statute 2477 is a one-sentence provision of the Lode Mining Act of 1866, whose simple language has created a hornet’s nest of interpretation that is buzzing across the West. The statute was repealed in 1976 when Congress passed the Federal Land Policy and Management Act, which defined rights of way across federal lands.RS 2477 granted rights of way to local governments for the construction of highways over public lands not reserved for other uses such as an Indian reservation. In essence, the statute says that if states, counties or individuals can prove a road has been in use before 1976 or before the land it crossed was reserved, it could still be claimed as a legitimate right of way.Since then, the law has pitted local governments against the feds, counties against private landowners, with environmental groups and off-road groups, among others, joining the fray.Private landownersAccording to John Lancelot, realty specialist with the Bureau of Land Management state office in Lakewood, claims have been in force for as long as the law has. However, it’s come up on the public’s radar in recent times because there are more demands on public lands, notably by recreationists and private landowners.Recreationists and others press claims because of “the lack of access to a lot of areas where recreationists want get to,” Lancelot said. “I think for that reason there has been more demand on recognizing RS 2477 rights than there might have been in the past. Some counties have used the statute to carve out access through public lands but shy away from doing so on private lands.”A lot of these counties are trying to steer clear of private property and claiming public roads there because private landowners might not want a public road on their property,” Lancelot said.
Environmentalists argue counties are claiming the merest shadow of a road – from game trails to streambeds – as historic roads, and have used the statute to block proposed wilderness areas where motorized vehicles are prohibited.Last year, the U.S. Department of the Interior signed an agreement with Utah confirming the state’s, and by association, its counties’, rights to claim roads. However, it excluded rights of way in national parks, forests and refuges. That agreement is being contested.During the 2003-2004 legislative session, U.S. Rep. Mark Udall, Eagle County’s congressman, proposed a bill that would set nationwide standards for rights of way. No action was taken on the bill, and Udall’s office is working with Colorado Counties Inc. on similar bill to reintroduce in the present session, said Udall spokesman Doug Young.Udall’s proposal effectively takes away the county’s right to claim historic roadways, said Garfield County Commissioner John Martin, who also is the co-chairman of Colorado Counties’ public lands steering committee.”It would totally be against what is in the original law,” Martin said. “It’s a one-policy-fits-all with administrative review by the Department of the Interior.”Horse-and-buggy trailsGarfield County, for example, has used the statute to settle disputes over access to public land north of Rifle.
“A couple years ago around Big Mountain, a road was closed off (to hunters) by a landowner,” County Commissioner Larry McCown said. “We convinced him to open it back up.”The county, Martin said, still has on its books a historic toll road that once ran from Sweetwater Lake, in the northeast corner of the county, across the Flat Tops to Trappers Lake. The road was used to haul timber, was deeded to the county and was closed down in 1920 or 1922, he said.When the Flat Tops Wilderness Area was created in 1975, the area was closed to vehicle traffic.”The Forest Service said it’s closed, and that’s just not so,” Martin said. However, Martin added, the county would not claim its right of way unless there was “a public necessity.”Although the county reserves the right to claim rights of way under the statute, McCown said it’s not likely it would do so in anything but a piecemeal fashion as issues come up over individual roads. Researching the history and ownership of each road in the county is very expensive and would be too time-consuming, he added.As part of the post-Civil War western expansion, Garfield County, which was first settled in the 1880s, is criss-crossed by “horse-and-buggy trails,” McCown said. There are many historic mining and land patents that have since reverted to the federal government, many of them in what has been set aside as roadless areas in the White River National Forest, he added.”It’s something we’re preserving the right to, but not pursuing at this time. We acknowledge there could be a lot of them in Garfield County.”Vail Colorado