Tribune’s Road Editorial Misleading

The Tribune’s recent editorial “Kane County Road Claims: County risks public safety to make a thin point” has once again perpetuated some fundamental misunderstandings of the rural roads issue by omitting or distorting key facts.

The Tribune characterizes Kane County’s recent effort to put signs on its county roads over the objection of the BLM as “nothing more than an example of petulantly pounding the table when neither the law not the facts are on your side.”

In reality, both the law and the facts are on the county’s side, not the BLM’s as the Tribune implies. The Tribune could easily have determined this for itself and should have.

Article 4, Section 3 of our Constitution gives Congress total control over the public lands. The only authority an executive branch agency such as BLM has is whatever Congress delegates. Understanding this is essential to understanding the roads issue.

Congress enacted Revised Statute 2477 in 1866 to transfer road rights-of-way, a true property right, to counties to encourage them to develop and maintain public access across federal land. It was a self-executing law. When the requirements were met, the property right-of-way conveyed.

Congress chose to completely bypass the Executive Branch agencies and until recently the agencies recognized that. For example, Interior Department regulations from 1938 stated “This grant [R.S. 2477] becomes effective upon the construction or establishing of highways, in accordance with the State laws, over public lands not reserved for public uses. No application should be filed under this act, as no action on the part of the Federal Government is necessary.”

Congress repealed RS 2477 in 1976 when it enacted the Federal Land Policy and Management Act (FLPMA). Yet, the editorial claims, in the present tense,: “RS 2477 is supposed to provide a mechanism by which counties can establish reasonable claims to established and useful roads by proper procedure.”

In fact, RS 2477 did none of these things when it was the law, much less now that it has been repealed. The actual text of RS 2477 is very short. It reads in its entirety “the right of way for the construction of highways over public lands, not reserved for public purposes, is hereby granted.” Nothing here about providing “a mechanism by which counties can establish reasonable claims…by proper process” or any test of what is “reasonable” or “useful.” So how, or more to the point, why this mischaracterization by the Tribune?

FLPMA also clearly and specifically recognized the validity of all the rights-of-way granted before repeal of RS 2477. This means that less than 30 years Congress re-iterated its intent, hardly making it an “ancient federal law” as the Tribune brands it.

Obviously, no rights-of-way can be granted under a repealed law, so neither Kane County nor any other county considers that RS 2477 provides “…carte blanche to claim any goat path or gully as a public highway” as the editorial alleges. Either the right-of-way was validly granted prior to repeal in 1976 or it was not. No amount of wishful thinking, misrepresentation or denial of reality on the part of the Tribune, or the BLM for that matter, can change that.

This also means that it makes no sense to argue or wish for some additional process, as the editorial calls for, to determine the validity of a county’s road “claim.” because the county is not making any claim in the sense the Tribune characterizes it. Instead, the county is asserting that the rights-of-way on which these roads are established were validly conveyed.

If these rights-of way were validly granted, then it is also obvious that both the law and the facts are on the county’s side, the Tribune’s characterization notwithstanding.

Who decides when there is disagreement whether there was a valid conveyance? Certainly not the BLM, as the Tribune clearly thinks. . Not only does BLM not have any independent authority in the matter, but, under our constitutional separation of powers, only the courts can make that determination.

All the BLM can do is determine for its own administrative purposes whether or not it will recognize a right-of-way assertion as valid.

The problem in Kane County and across the West is that federal agencies increasingly are acting as if they have independent, constitutionally-granted authority to determine validity and to take such actions as closing roads at will. This is in direct defiance not only of the clear letter of the law but also of its spirit and the intent of Congress.

With this foundation of fact and law, the safety issue the Tribune focuses on can be put into proper perspective. The BLM claims a safely issue is arising out of the discrepancy between the travel information that they have been providing to the public and what is now evident on the ground because of the county signing its roads. If there is such a safely issue--and that is a big “if,”--it is of the BLM’s creation, not Kane County’s. If the agency had not tried to illegally take upon itself to determine what is a road, and to act as if it has the authority to close those it wished were not there, this situation would not exist.

Before the Tribune opines again on the roads issue, or any other natural resource issue, it should get the facts and the law straight. Its readers deserve nothing less.