Proposal on road ownership worst idea yet

Legalizing land grab
This is an archived article that was published on in 2006, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

There have been many proposals for clarifying road rights of way in the West. The one being sponsored by New Mexico Republican Rep. Steve Pearce is the worst.

This land-grab legislation would require a state or county wanting to claim ownership of a route across federal land - even in national parks, wilderness study areas or, astoundingly, defense installations - to present only an official map, presumably from any era, or an aerial photograph showing the road existed prior to 1986.

Title would be granted and the state or county could do as it wished with the road without approval of any federal agency or the military.

Pearce's spokesman says the purpose of the congressman's proposed legislation is merely to start a discussion about road disputes. That seems grossly disingenuous, since a spirited debate has been going on for a decade or more. It seems more likely that Pearce wants the bill to serve as a threat of what could happen if access to public lands is curtailed by federal agencies or is disputed in court.

A 10th U.S. Circuit Court of Appeals decision last year concluded that rights of way in dispute because of the repeal 30 years ago of RS 2477, a Civil War-era statute, should be defined by state laws. RS 2477 was a mining law that allowed counties and cities to lay routes across federal land. When it was repealed, existing roads were grandfathered in, but their definition has been a source of debate ever since.

Environmental activists say a loose definition of what constitutes a road could lead to overuse of public lands that are important for wildlife, non-motorized recreation and watersheds. Private-property owners, some in Utah, are fighting to keep off their lands those who claim a historic right of way on formerly public land.

Some rural Utah counties want unfettered access to public lands and have claimed rights of way, sometimes thinly supported by evidence, even through federally protected areas, including the Grand Staircase-Escalante National Monument.

Pearce's legislation would erase what little progress has been made toward resolving the roads issue and impose a standard of proof of historical use so ridiculously low that virtually all public lands would be open to virtually any use, no matter how potentially destructive.