Published at 59 Fed.Reg. 39216 et seq. (August 1, 1994)

These comments are submitted on behalf of the Utah Association of Counties and each of the 29 counties in the State of Utah.

These regulations would go beyond the challenge to the rights of state and local governments. They would also interfere with access rights to school trust lands and lands held in trust for Native Americans. In many cases, access rights to lands allotted to individual Native Americans would also be impacted. These regulations would constitute a breach of the obligations the federal government has with regard to school trust lands and lands belonging to Native Americans, in trust or otherwise. The regulations currently proposed by the Department of Interior for administrative treatment of rights-of-way granted under Revised Statutes 2477 (R.S. 2477) exceed the administrative authority of the Department. There is no federal nexus or need to establish such a sweeping process, particularly in view of the substantial adverse impacts arising from the proposed scheme. The regulations would unduly burden state and local governments and other R.S. 2477 right-of-way holders. The regulations also pose a massive problem for private property transactions. The burdens imposed are so extensive that they constitute a taking of property without just compensation or due process.

The proposed regulations, along with the supplementary and analytical materials, reflect no attempt to fairly characterize and represent the regulatory and legal precedents already established regarding R.S. 2477 rights-of-way. They do not adequately inform the public regarding their nature and impacts. These regulations constitute a substantial reversal of long-standing law and policy. As such, they are insupportable.

Congress did not tell the Department to resolve this issue. The Conference Report (102-901) on H.R. 5503 asked the Department to report on R.S. 2477 rights-of-way and to make “sound recommendations . . . consistent with the intent of Congress both in enacting R.S. 2477 and FLPMA . . . .” These regulations ignore the established intent of Congress in passing both statutes.

Because of the extensive flaws in the scheme proposed by the Department, no revision of this proposal will result in a legally acceptable regulatory scheme. The Department should revisit the law of R.S. 2477, as set forth by the federal courts, state courts and Departmental precedent, and should reissue new draft regulations which are consistent with that precedent. If the Department persists in its intention to take the actions proposed, it should nevertheless reissue draft regulations with supplementary notes which adequately disclose the nature of this action to the public.

The following comments provide more detail in a section by section analysis followed by general comments regarding the problems posed by the draft regulations. The comments on specific points should be considered in the context of the overriding consideration that, because of the extensive flaws inherent in the entire Departmental proposal, the entire proposal is fundamentally unsound.

SECTION 39.1, PURPOSE :

The purposes for which the regulations are being promulgated are improper. The Department is not authorized to adjudicate R.S. 2477 rights-of-way. Courts have already defined key terms of the statute. The Department lacks authority to redefine the terms. The Department should take care to conform any regulation regarding R.S. 2477 to this established precedent. The procedures which the Department seeks to impose create an insupportable burden on the exercise of valid existing rights. The Department cannot “provide for the use of” these rights-of-way; that was done by the Congressional grant. In any event these regulations are designed to impede their use. As FLPMA dictates, the Department must conduct its activities so as to not impair R.S. 2477 rights. Pub. L. No. 94-579, 90 Stat. 2743 (1976), codified at 43 U.S.C. 1701 et seq.

SECTION 39.2, APPLICABILITY AND AUTHORITY:

The authority cited by the Department extends only to the power to regulate the servient estate, which is subject to valid, existing R.S. 2477 rights-of-way. The regulations exceed this authority.

The Department of Interior does not have legislatively delegated authority to engage in this rulemaking. The agency does not administer R.S. 2477. FLPMA makes this clear. The Department’s regulatory authority under the statutes cited limits its purview to actions which protect the resources managed under those statutes (the retained servient estate) from undue or unnecessary impacts arising from the exercise of R.S. 2477 rights or actions taken outside of the scope of the rights, not to direct regulation of the rights-of-way themselves, which are no longer within federal authority, having been severed from the public domain.

SECTION 39.3, DEFINITIONS:

The Department lacks authority to define the terms of R.S. 2477. Courts have already defined the terms in accord with laws of the state where the rights-of-way are located.

Courts addressing this issue have uniformly determined that state law acts as the rule of decision to define the pertinent terms. These regulations, however, disregard this settled precedent. The Department casts itself as the supreme arbiter of R.S. 2477 and creates entirely new definitions of the operable terms of the Act. The Department lacks authority to replace the original intent of Congress with its own intent some 128 years later and some 18 years after the Act was repealed. One must wonder from what source the Department came up with its definitions, if not from more than one hundred years of court precedent.

The use of the term “claim” is misleading and improper. The rights which exist are perfected rights, not “claims.”

The use of the term “claimant” is misleading and improper. There are only holders of valid existing rights. The process proposed by the Department is intended to move holders into the position of petitioners; this is beyond the Department’s legal authority.

The definition of “construction” is much too restrictive, as well as not being in accordance with law. According to this definition, if a county used a bulldozer to move a large rock from the right-of-way in order to create a defined route, that action would not be considered construction. Similarly, if the county used its grader and its bulldozer to remove all vegetation along a right-of-way, that work would not be recognized as establishing county acceptance of the rights. The Department must honor established law that any act by the public that readies a highway for use, including public passage over time or actions of state and local government expressly accepting the grant, is sufficient to establish the acceptance of the grant. Federal courts have already interpreted this term; the Department is obligated to honor the law established by the courts. See Attachment A. The “requirements to show intentional acts, durable and observable physical modifications of land, and a link to highway traffic” (as defined in the regulations) are not legally or rationally supportable. The Department’s piecemeal creations of new definitions for isolated terms of R.S. 2477 distorts the express language of the statute. This is well-illustrated by the Department’s definition of “construction.” The Department proposes that the term “construction” requires a high level of actual construction. Congress’ words, however, granted “the right-of-way for the construction of highways.” Rights-of-way were not granted only after construction had occurred. The plain language of R.S. 2477 states that rights were conveyed so that highways could then be constructed.

The definition of “highway” does not comply with settled law. The proper legal definition of highway can be seen by reference to Attachment A. No restriction to vehicular traffic is proper, especially in light of the fact that automobiles did not exist in 1866. The law did not require that destinations be “public.” A public highway provides access to any location, from business to home or farm to farm or farm to market roads. Quite often, public access goes from private location to private location. That was clearly the intent of Congress, given the definition of highway that was in force at the time R.S. 2477 was enacted and the purposes of R.S. 2477 articulated by the courts. “The requirements to show current use, vehicular use, public use, and the connection between places made possible by the construction of the highway” are not legally or rationally supportable.

A “holder” is someone who holds an R.S. 2477 right-of-way, based upon past actions which have operated to perfect the right-of-way. The imprimatur of the Department or the courts does not alter this status but merely constitutes an official recognition of a status which already exists.

The use of the term “improvement” is inappropriate. This term, as commonly understood, would include activities that are within the scope of the valid existing rights. There can be no question that Congress intended to allow the public to maintain and improve its easement as allowed pursuant to state law. This is fundamental to the definition and legal understanding of what constitutes a “right-of-way.” The Department’s effort to remove these rights from the scope of the grant is legally and rationally insupportable.

The definition of “maintenance” is a question of state law and must be made separately for each state. Inherent in the grant of a right-of-way is the right to maintain the right-of-way, including “grading, planking, graveling, asphalt, surfacing, cuts and fills, preparation of drainage ditches, curbing, or installation of culverts.” (p. 39220). Where not specifically defined by state law, safety must be the controlling concern (subject to the obligation not to cause undue impacts to federal resources). The standards set forth by the American Association of State Highway and Transportation Officials (AASHTO) are the appropriate reference for these purposes. The Department’s treatment of maintenance activities in the proposed regulations is legally and rationally insupportable.

The treatment of “Public Lands Not Reserved for Public Uses or Unreserved Public Lands” is contrary to prior Departmental policy and to the intent of Congress in passing R.S. 2477. The right to create public highways was offered by R.S. 2477 to facilitate development of the public lands. The “reservation for public use” contemplated by Congress in enacting R.S. 2477 is exemplified by military reservations and national parks.

The definition of “routine maintenance” is superfluous when considered in proper legal context. The right of maintenance, whether routine or otherwise, is inherent in the right-of-way. The Department’s treatment of the issues of maintenance, routine maintenance, improvements and scope is legally and rationally insupportable.

The definition of “scope” ignores established law. Furthermore, this definition reflects a cavalier disregard for the safety of the traveling public. State law provides the basis for determination of the scope of an R.S. 2477 right-of-way. Inherent in the scope of a right-of-way is the right to make alterations for maintenance purposes and improvements which serve the purpose for which the right-of-way was granted. The rights of state and local governments cannot be diminished in this fashion.

The Department’s reservation of a right to challenge past actions for trespass (59 Fed.Reg. 39221) is arbitrary and capricious and unsupported by law. If the Department did not assert trespass at the time action was taken, it should not and cannot assert trespass now under new rules which constitute a reversal of prior Departmental policy and prior law governing R.S. 2477.

SECTION 39.4, RECOGNITION OF A VALIDLY ACQUIRED RIGHT-OF-WAY:

A refusal to recognize rights-of-way which have been perfected, but have not been recognized according to these regulations, would have no legal merit.

The complete disregard for state court decisions which provide legal determinations relevant to the existence of R.S. 2477 rights-of-way is improper.

SECTION 39.5, INTERESTS GRANTED AND RETAINED BY THE UNITED STATES:

The treatment of interests retained by the holder and interests retained by the United States does not comply with the law. The holder has a right of maintenance and construction within the scope of the easement. The regulatory authority of the Department is limited to preventing unnecessary impacts or derogation of the servient estate. The proposal operates as a deprivation of property rights without compensation or due process.

SECTION 39.6, FILING PROCESS FOR ADMINISTRATIVE DETERMINATION:

The filing process for administrative determination of a claim is unduly burdensome. Because of the inherent impossibility of complying with these requirements, based upon prior policies of the Department, historical circumstances and the excessive documentation required, valid existing rights will be taken by this process.

The refusal to recognize court decisions unless they are filed with the Department cannot form the basis for a purported relinquishment of rights.

The proposed regulations remove the decision making process preferentially to the National Park Service and the Fish and Wildlife Service, even when the longest stretch of the rights-of-way in question are on public lands managed by the BLM. These agencies have little or no historical expertise in dealing with R.S. 2477. Clearly, the vast majority of R.S. 2477 rights-of-way will traverse lands managed by the Bureau of Land Management. But the BLM is removed from the administrative process to the greatest degree possible. The expertise in dealing with R.S. 2477 has developed most strongly in the BLM. This expertise will not be used. The other agencies, unlike BLM, often do not have local offices accessible to the public. Removing the administrative process to regional or state offices will create an undue burden of forcing holders of rights-of-way to deal at a distance with administrators. Furthermore, since these offices have not traditionally handled R.S. 2477 rights-of-way issues, removing the administrative process to this level will be highly inefficient. The selection of agencies to conduct the administrative process is inefficient, arbitrary and capricious.

BLM has been dealing with R.S. 2477 rights-of-way for decades with little or no problem, until this administration took office. BLM personnel have recognized valid existing R.S. 2477 rights-of-way and have conducted their management activities subject to these rights-of-way. Moving the decision-making power to other agencies would eliminate the institutional knowledge of BLM personnel, creating unnecessary inefficiency.

The new process would require hiring, education and training of new people who have little or no prior experience with R.S. 2477, since the administrative burden created by the regulations could not be effectively handled with existing staff.

The information required to be filed with a claim far exceeds that necessary to establish a valid R.S. 2477 right-of-way in accordance with the terms of the grant as construed by the Department and the courts for the past 128 years. The documentation burden imposed here is so extensive that it would result in the loss of rights by counties and other local governments whose resources are insufficient to meet this demand. The counties most impacted will be those that rely most heavily on the access granted under R.S. 2477, since those are the counties that have the greatest federal acreage and the least private property tax base.

The requirements for “a summary of the history of the construction and use of the right-of-way up to the present,” evidence of construction (as defined by the regulations), evidence of vehicular use, and evidence that “the thoroughfare served as a connection between public destinations” all exceed the proper evidentiary basis required to show establishment of an R.S. 2477 in accordance with the administrative requirements in place from 1938 to 1976, as well as applicable law.

The requirement that the holder provide “evidence that the land over which a claim of a right-of-way pursuant to R.S. 2477 lies was public land not reserved for public uses at the time of construction” improperly places the burden of proof on the holder, in view of Departmental policy in place during the time the offer was open that no notification or documentation was required to be made or kept. If the right-of-way crosses lands which were, at any time prior to October 21, 1976, unreserved public lands, it must be presumed that the right-of-way was established when the lands were unreserved. The burden must be placed on anyone who believes otherwise to establish proof. Any other rule would operate as a deprivation of property rights without due process.

The intent behind the language “sufficient detail to allow location on the ground by a competent engineer or surveyor” is unclear. If a survey is going to be required, that should be specifically stated; if not, it should be specifically excluded. Likewise, it is unclear to what degree of detail the “summary of the history of the construction and use of the right-of-way” will be required. “Public destinations” is not defined. To the extent the Department intends to rely on this and other provisions of the regulation to assert invalidity of a right-of-way, these definitions and their implications must be clearly disclosed to ensure due process. If the Department intends to persist in this misguided regulatory effort, draft regulations should be republished with clarifications of these matters in order to provide the public with adequate notification of the Department’s intent.

The two year time limit leaves inadequate time to comply with the other requirements of the regulation and will result in deprivation of property without due process. The accomplishment of a relinquishment of valid, existing property rights through this administrative process is not authorized. In fact, it was specifically precluded by the Federal Land Policy and Management Act (FLPMA) at 43 U.S.C. 43 U.S.C. 1701 notes (a) and (h), 1769(a). The Department is not authorized to place a “sunset” provision on rights granted by Congress directly to the public.

Since the Department’s original policy specifically forbade submission of documentation to the federal government (43 C.F.R. 244.54 (1938); 43 C.F.R. 2822.1-1 (1974)), the Department cannot now place a burden on the holders of rights-of-way to locate or create documentation.

The assertion that “a claim would be required to include sufficient information to demonstrate to the authorized officer that each element of R.S. 2477 and each requirement of these regulations has been met” (p. 39222) reveals that the Department understands that these regulations impose requirements in excess of those required by Congress under R.S. 2477. The Department has not been granted authority to require any actions beyond those established by Congress.

SECTION 39.7, EFFECT OF FAILURE TO FILE A CLAIM:

The Department does not have legal authority to impose this administrative process. The proposed regulations assert an adverse claim against all R.S. 2477 rights-of-way, no matter how clearly established. The Department thus assumes the power to determine what constitutes proper notice under the Quiet Title Act, a power reserved to the judiciary.

The policies of the Department, implicit in the proposed regulations and explicit in public statements by officials, would attempt to preclude recognition by the courts of any R.S. 2477 right-of-way which had not been administratively recognized, no matter how valid the right-of-way.

The assertion of the effective date as notice of an adverse claim under the Quiet Title Act contradicts the express intent of Congress, which provided that each party to which the limitations period applied would have 12 years from the date the party has notice of an adverse claim. Since a portion of the time period after the effective date of the regulations would be occupied by complying with the requirements for filing a claim and an additional portion (with no deadline set) would be occupied by the Department’s administrative determination and, possibly, by the appeals process, holders would not know for some time, probably years, whether the Department was actually going to dispute their rights. Meanwhile, without any other notice of adverse interest, the time allotted by the Quiet Title Act would be dissipating. Thus, these regulations diminish a time period specifically established by Congress.

The assertion of notice under the Quiet Title Act fails to meet the requirement that notice commencing the limitations period requires action which would alert the traveling public that their access rights are being invalidated. These actions must be physically manifest in order to provide the requisite notice.

Because the impacts of running of notice under the Quiet Title Act would not occur until it was too late to take appropriate action, the full impacts and public outcry in response to physical closures would not take place until after the legal steps sufficient to deprive the public of its rights have already been accomplished. When the public wakes up, access to the courts would be denied. After that point, parties would be faced with no other alternative but to take action designed to induce the United States to take legal action to quiet title, as suggested by the United States Supreme Court in Block v. North Dakota, 461 U.S. 273 (1983).

The commencement of the limitations period under the Quiet Title Act means all rights-of-way are treated as invalid until proven valid. There is no legal authority for this position.

SECTION 39.8, PROCESSING OF CLAIMS:

The excessive scope of the information to be required, coupled with the power of the authorized officer to cause a purported relinquishment through refusal to process the claim, operates as a deprivation of property without due process.

The open-ended provision allowing the authorized officer to demand additional information, beyond the excessive amounts already demanded in the previous section, merely adds insult to injury. No deadline should be imposed, given that there is no identification of the nature and extent of the information the officer might demand. The search for documentation of actions which may have taken place a hundred years ago could take a long time. Attempting to place this burden on the holder and then setting a time limit which makes it impossible for the holder to comply constitutes an arbitrary and capricious imposition. In any event, since the information already required is beyond that necessary to meet the Department’s legitimate interests and duties, the provision of discretion to demand more information further diminishes the credibility and validity of the regulatory scheme proposed.

Under the proposed regulations, if the claimant fails to file the proper paperwork or makes any minor error in processing, the “claim” could be denied, even though the right is valid and has been in place and used for numerous years. These rights belong to the public, which relies on these access rights for innumerable activities associated with life in a free society. As such they cannot be terminated in this fashion. Furthermore, this open, undefined requirement promotes opportunity for arbitrary and capricious action. This creates an unrealistic burden on holders, given the documentation which can potentially be asked for and the fact that many of these rights may have been perfected over 100 years ago without documentation at the time.

Since the department has specifically stated prior to now that its administrative decisions do not have the force of an adjudication, the public was entitled to rely upon those statements. Thus, incorporation of prior administrative determinations that there is not a right-of-way as a binding result in current reviews constitutes a denial of due process.

“[O]ther types of Congressional or administrative determinations, such as the designation of Wilderness Areas or Wilderness Study Areas” cannot “automatically disqualify” a right. The Department has not identified any Congressional determination in which Congress has denied or negated an R.S. 2477 right-of-way. Congress does not have the power to take these property rights without due process and just compensation. Designation of Wilderness Areas by Congress, without explicit language effecting a challenge to prior existing R.S. 2477 rights-of-way, would not operate to defeat the rights. Identification of Wilderness Study Areas was done subject to the R.S. 2477 right-of-way and cannot operate to defeat the right-of-way or even to give notice to the public of an adverse interest. Assuming, for the purposes of discussion, that the Department had the power to impose this regulatory scheme, it would not thereby have the power to refuse to recognize valid rights-of-way on this basis.

The failure to consider the opinions of or consult with the state or local governments regarding these actions does not provide adequate opportunity for all representatives of the public to participate in the administrative process. This is unfair since these representatives are the only ones who are charged with protecting the public’s interests in these rights-of-way.

The costs of public notification of these claims would be substantial. However, the requirements of due process impose a burden on the Department to give notice before it attempts to take these property rights. Therefore, unless the Department corrects the process to avoid the takings which are now inherent in its proposal, it must give adequate notice to the public.

The failure to provide a deadline for administrative action is too open-ended, especially when coupled with the purported notice under the Quiet Title Act. The administrative agency should be subject to the same deadlines that the holders are. The extensive internal review process will undoubtedly result in extensive delays in administrative review of valid existing rights.

In response to the request for comments on “whether or when it is necessary or useful to provide, as part of an Administrative Determination, a written description of scope and, if so, what parameters should be used to describe it” (p. 39223), the Department is not authorized to adjudicate scope. To the extent that the Department desires to ascertain scope for its own administrative purposes, it must do so in accordance with the law of the state where the right-of-way was perfected. It should be unnecessary to make a written statement of scope, since the provisions of state law should be generally known to those concerned with R.S. 2477 rights-of-way.

The public notification of all administrative decisions would be costly, imposing a burden the taxpayer should not have to bear and the holder cannot be required to bear. To the extent that the Department asserts that a right-of-way is invalid, however, the public is entitled to be informed regarding the loss of its access rights; due process requires that notice be given. For all other actions, since the Department’s authority is limited to its own administrative purposes, it should be sufficient, under a proper regulatory scheme, to note the rights-of-way it has acknowledged in its records, as well as to provide notice to the holder and any party who has submitted a request showing a legitimate interest in the administrative procedure.

SECTION 39.9, APPEALS PROCEDURE FROM ADMINISTRATIVE DETERMINATIONS:

The proposed regulations would expand the opportunity for third parties to intervene in title questions that have been traditionally reserved for parties with specific interests in the property. Furthermore, no burden is placed on such third parties in terms of other legitimate interests, evidence, integrity or responsibility for the results of the appeal (unlike holders, who are required to shoulder a substantial burden to prove the existence of any right-of-way, no matter how well-established and accepted). As a result, the rights of holders to maintain and improve their rights-of-way, not to mention the right of the public to continue using them, could be compromised by lengthy administrative proceedings merely because someone wants to cause delay or expense to the holder.

There can be no legitimate federal interest in unduly burdening state and local governments in order to benefit third parties who do not have the same responsibilities and duties to the public or any similar constitutionally sanctioned role.

The provision for a hearing merely adds burden to the holders. The burden which the Department is attempting to place on the holders is already excessive. No additional hearing should be provided. Assuming the regulations were valid as written, the holder or anyone desiring to challenge the right-of-way should have direct access to the courts. There is no point in prolonging a decision making process which is being carried out by a party adverse to the holder. The inherent unfairness of the process should not be magnified in this fashion. In fact, because of the inherent bias of the Department, even if it did have the power to adjudicate these rights, it should do so by creating independent bodies made up in part of local citizens or officials, to provide for fairness in the review process. Decisions should be effective immediately and, consistent with current practice, should be deemed final agency action. To the extent an appeals process is offered, it should be limited to parties who participated by offering valid considerations for the processing of the claim, not to those who merely took advantage of procedures to make the process more complicated out of hostility towards the rights.

The bias of the Department is apparent in section 39.9(d), which presumes that there will be an inadequate record in support of the right-of-way and encourages asking the claimant for additional information in support of its claim and presumes that the party challenging the right will have adequately supported its burden (which is probably true, since the burden on the challenger is minimal) and doesn’t, for example, contemplate that the Director might require the party challenging the right to provide more information.

SECTION 39.10, INTERIM ACTIVITY:

The treatment of “interim activity” would constitute an illegal interference with the exercise of valid existing rights. The highway right-of-way includes the right of maintenance and of improvements where authorized by state law. The only proper role for the Department is to monitor and take action to ensure that proposed improvements do not include actions which would unduly impact or derogate the servient estate. The attempt to assert control over every action of the holder, no matter how minor, constitutes a deprivation of rights, in and of itself. This action would “federalize” each and every R.S. 2477 right-of-way, eviscerating the rights of state and local governments to manage their highways.

These procedures will not “provide a workable framework for necessary activities of claimants.” They far exceed what is necessary to “adequately protect[] public resources.” (p. 39223).

GENERAL COMMENTS:

In 1866, Congress promoted the settlement and use of Western lands through R.S. 2477, a self-executing, open-ended grant of rights-of-way across public lands. Now, in 1994, the Department promotes the preservation of Western lands. Thus, a conflict exists between past and present policies.

Congress addressed the conflict through FLPMA. FLPMA protects R.S. 2477 rights; Congress specified that actions under FLPMA are taken subject to these valid existing rights. 43 U.S.C. 1701 notes (a) and (h), 43 U.S.C. 1769(a). FLPMA specifically provides that the Department cannot force the abandonment or relinquishment of these rights-of-way, but must obtain the consent of the holder even for an exchange for a FLPMA right-of-way. 43 U.S.C. 1769(a).

The Department’s regulations run contrary to Congress’ original grant of 1866 and contrary to the express language of FLPMA and would act to improperly invalidate existing R.S. 2477 rights-of-way. These regulations should be withdrawn due to the following improprieties, among others: the Department lacks authority to promulgate such broad, sweeping regulations; the regulations violate fundamental constitutional principles; the Department cannot adjudicate conflicts in which it is involved; the Department cannot cavalierly disregard more than a century of established jurisprudence; the contempt and mistrust for local governments that is manifest by these regulations is improper; the regulations improperly seek to invalidate existing rights; the Department cannot redefine Congress’ original intent; vested rights cannot be treated as invalid until proven valid; the regulations are not needed and create controversy; the regulations transform prior lawful activities into trespass; the regulations are not needed to protect the environment; the regulations misrepresent enormous costs that would be imposed upon individuals and all levels of government; and the regulations provide inadequate notice to the public and to other governmental entities. Each of these improprieties will be discussed below.

THE REGULATIONS EXCEED INTERIOR’S AUTHORITY

The Department can only act within the scope of its delegated authority. No matter how much the Department desires, it cannot expand the scope of its authority.

Congress granted R.S. 2477 rights-of-way directly to the public. The grant acted as an offer. Where the public accepted the offer, the rights became vested in the holder. The operative terms of the offer are not now subject to revision. It’s a simple concept and a fundamental tenet of property rights. The grant is no longer being offered and the terms under which it was offered are indelible.

The Department does not have authority to alter 110 years of treatment of R.S. 2477 rights-of-way. Hundreds of courts, as well as the Department and BLM, have stated that the terms of R.S. 2477 are controlled by the law of the state where the land is located. Courts have so held since R.S. 2477 was enacted. The Department has so stated since at least 1938. The public has relied on these uniform, uncontradicted declarations. The Department’s present attempt to retroactively redefine long-settled statutory terms abuses the right to regulate and contradicts established rules of statutory interpretation. As evidenced by 128 years of congressional acquiescence, the terms of R.S. 2477 were properly fleshed out by the laws of the states long ago.

These regulations offer no reasoned basis for the scope of regulatory power and effect proposed. If these regulations are supported by the limited authority the Department has been granted from Congress, there is no meaningful limit on the Department’s regulatory power, clearly a result that cannot be supported by law.

THE REGULATIONS VIOLATE FUNDAMENTAL CONSTITUTIONAL PRINCIPLES

The Department is precluded by fundamental constitutional principles from the arbitrary actions proposed here. The burden imposed by these regulations is so substantial that it operates as a deprivation of property rights without due process or just compensation. Meeting the documentation requirements would be an overwhelming burden for those states which did not require documentation. The undue burden on local governments is aggravated by the fact that most of the construction and maintenance activity was probably not documented, since holders were told specifically not to provide such information to the federal government. See, 43 C.F.R. 244.54 (1938); 43 C.F.R. 2822.1-1 (1974). As a result, it may be impossible to demonstrate the historical construction activities that where conducted. Ironically, the older roads, which the public has relied upon for the longest time, would be most vulnerable to defeat by this definition. Since the Department’s original policy specifically stated that no documentation was required, it cannot now retroactively place a burden on the holders of rights-of-way to locate or create documentation.

The regulations would interfere with the fundamental rights that citizens enjoy to travel freely across states, thus contradicting the constitutional principles supporting the commerce clause. Where Congress has promoted development of road networks and local governments have developed such networks, an unauthorized executive department cannot deprive the public the right to travel over such roads.

R.S. 2477 rights-of-way are property rights and are completely vested in the holder. R.S. 2477 rights have been severed from the public domain and are entitled to the same protections as any other property which is not owned by the federal government. The rights are now perfected; the Department cannot now “unperfect” the right. Actions by the federal government to invalidate such rights through imposition of additional criteria beyond that in place prior to the repeal of R.S. 2477 would cause the taking of property without due process or compensation. This result would automatically arise where any governmental entity holding a right-of-way failed to file a claim. Since these rights belong to the public as a whole, it is improper to promulgate a process which denies the public access rights without due process and just compensation.

The Department is setting itself up as the adjudicatory body to determine the existence and scope of rights which it has set out to defeat. This arrangement is an affront to basic and fundamental principles of fairness and due process. The fundamental tenets of our legal system deny a party to a dispute the direct power to adjudicate the rights of an opposing party. The approach proposed under the new regulations has always been rejected by the Department in the past, with good reason.

The courts are the only proper body to make title determinations, particularly in view of the clearly expressed intention of the Department to ignore established legal principles in its treatment of R.S. 2477 rights-of-way.

The regulations should honestly state that the Department’s administrative adjudications are intended to have binding, legal effect and that the Department intends to rely upon the provisions of these regulations in any future quiet title action to assert claims of abandonment, waiver, or other adverse assertions of interest based solely on the administrative actions associated with the regulations. If this is not the Department’s intent, the regulations should specify that they are for the Department’s internal administrative purposes only and have no binding, legal effect. It is implicit, however, that the Department does intend to demand that courts of law defer to the process and decisions proposed under these regulations. If successful, this process would effectively eliminate current rights of access to the courts and would make hostile Departmental actions binding in a court of law. These intentions should be explicitly disclosed in the regulations. In fact, due to the omission of this significant disclosure, the final regulations would be fatally flawed by failure to provide due process in their promulgation. As a result, a new draft regulation must be published which clearly discloses this result.

THE REGULATIONS CONTRAVENE LONG-ESTABLISHED JURISPRUDENCE

With regard to the Department’s request for comments on its interpretation of the relationship between state and federal law, it is well-established that federal law, in accordance with the intent of Congress, has adopted state law to determine the existence and scope of R.S. 2477 rights-of-way. The reasons behind this choice are many and salutary. The regulation’s disregard for the law which formed the basis for the perfection of R.S. 2477 rights-of-way does not comport with the Department’s obligation to manage the servient estate according to current federal statutes.

The “interplay between state and federal law” (p. 39218) has caused little or no confusion. Proper analysis of this interplay has, however, caused dissatisfaction among those who want to limit or defeat these rights. It has been universally held by every court which has addressed the issue that federal law has incorporated state law for interpretation of the existence and scope of an R.S. 2477 right-of-way. The interplay has been amply and carefully addressed in Sierra Club v. Hodel, at 848 F.2d at 1080-84, as well as other federal court cases. The Department should not continue to ignore the extensive analysis of this issue found in Sierra Club v. Hodel.

According to the federal regulations in place starting in 1938, as well as state and federal court decisions referred to above, any action by a governmental entity which indicated an intent to accept the grant was effective. In addition, state law has always formed a proper basis for perfecting the R.S. 2477 grant. According to the courts, as well as fundamental rules of statutory construction, the terms of R.S. 2477 must be interpreted in accordance with the understanding in place at the time the statute was enacted, which is the basis upon which Congress acted.

There is an inherent contradiction in adopting state law for the limited purpose of narrowing the grant from what the Department now asserts was offered by Congress, but not for any other purpose. There is no appropriate rationale for adopting state law only where it serves the Department’s purpose of narrowly restricting or eliminating R.S. 2477 rights-of-way.

There have been no unrealistic expectations created in interested state and local governments. State and local governments have continued to properly manage their R.S. 2477 rights-of-way in accordance with the terms of the grant as established by decades of administrative treatment, by a vast body of state law, and by those federal court decisions which have given due attention to the issue. The expectations of state and local governments are deemed unrealistic only from a point of view which is based upon the goal of defeating established rights and ignoring consistent prior representations of the Department upon which local governments have based their expectations.

< Additionally, the assertion that R.S. 2477 must be read against the requirements imposed under later federal enactments is contrary to all existing law, including law explicitly promulgated by the courts pertaining to R.S. 2477. See, Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988).

THE REGULATIONS MANIFEST DISRESPECT FOR LOCAL GOVERNMENTS

These regulations evidence an improper distrust and contempt for state and local governments. The assertions about the attitudes and goals of state and local governments (pp. 39216-7) are unfounded. All such assertions should be stricken, unless documented based upon formal statements of the legislative body for the governmental entity whose viewpoint is being summarized. The undocumented assertion that R.S. 2477 has been “resurrected” (p. 39217) is unsupported by any facts. In fact, R.S. 2477 rights-of-way have existed since at least 1976, often since prior to 1866, and local governments have continued to exercise those rights in accordance with long standing practice. Now, however, those practices are being attacked.

The state and local governments which hold these rights are entitled to exercise their powers within the sphere of their authority without federal intervention. As Executive Order 12866 states, “The American people deserve . . . regulatory approaches that respect the role of State, local, and tribal governments.” State and local governments are entitled to the presumption that actions taken within the scope of their authority are reasonable. The exercise of rights under R.S. 2477, including maintenance and construction activities to provide safety within the scope of the right-of-way, is within the scope of authority of the state and local governments which hold these rights-of-way.

In response to the Department’s request for specific comments regarding “whether and how, in the case of a private claim, State or local agencies with jurisdiction over highways in the area should be notified, consulted, and involved in the determination of validity,” the state and local agencies should be notified, consulted and involved in the determination of validity. Any other result has the risk of imposing an obligation on local government without its knowledge. It is interesting to note, in this regard, that the Department is apparently willing to have the local government more involved in the “determination of validity” of these rights than in the rights the local government itself claims.

These regulations would go beyond the challenge to the rights of state and local governments. They would also interfere with access rights to school trust lands and lands held in trust for Native Americans. In many cases, access rights to lands allotted to individual Native Americans would also be impacted. These regulations would constitute a breach of the obligations the federal government has with regard to school trust lands and lands belonging to Native Americans, in trust or otherwise.

THE REGULATIONS IMPROPERLY SEEK TO INVALIDATE EXISTING RIGHTS

The focus on a “formal” administrative process to “make binding determinations of [the] existence and validity” of R.S. 2477 rights (p. 39216) exposes the true intent of these proposed regulations: not to provide clarity to the Department for its administrative purposes, but rather to adjudicate (eliminate) rights. This is not a proper purpose for which the Department has been authorized to act. As Executive Order 12866 states, “The American people deserve a regulatory system that works for them, not against them.” The proposed regulations are duplicitous in not expressly stating that they intend to redefineand adjudicate valid existing property rights through administrative action, and that, in that process, a number of rights-of-way would be voided.

The supplementary information mischaracterizes the history and context of R.S. 2477. It is clearly designed to provide support for the outcome chosen by the Department, rather than a fair assessment of the relevant facts.

Further illustrating the Department’s current hostility toward R.S. 2477 rights and the holders thereof, the publication requirements of the regulations invite third party intervention by those who have only the motive to defeat R.S. 2477 rights-of-way through lengthy and costly proceedings. These regulations would enhance the power of those who are willing to go to great lengths to interfere with the exercise of legitimate rights.

The Department’s assertion that response to prior regulatory action was incomplete is interesting in light of the fact that counties in Utah filed information regarding R.S. 2477 rights-of-way upon the mere request of state and local BLM offices. After counties responded to the BLM request, the Department then accused counties of initiating R.S. 2477 claims for other reasons. The Department chose to ignore the historical facts and substituted allegations in its report to Congress that counties asserted right-of-way claims in response to “citizen group” proposals for additional wilderness designation, and now adds to the misinformation in the supplementary materials to this proposed regulation.

If, as the Department asserts, access rights will not be lost because they will be granted under FLPMA permits or by other mechanisms, there would be no adverse environmental impacts arising from honoring R.S. 2477 rights-of-way, since the same access will be available in either event. This assertion belies the notion that R.S. 2477 rights-of-way are somehow inconsistent with modern policies. If the Department claims that R.S. 2477 rights-of-way are inconsistent with modern federal policies, it must also admit that its efforts now are focused on restricting the R.S. 2477 rights in comparison to what was originally intended and granted.

THE REGULATIONS ATTEMPT TO REDEFINE CONGRESS’ ORIGINAL INTENT

These regulations do not clarify R.S. 2477 in its “historic context” (p. 39217) but rather attempt to improperly recharacterize the intent of Congress and the existence and scope of these rights, based upon certain current philosophies of federal land management which are not applicable to determining the existence and scope of R.S. 2477 rights-of-way.

This rule would contradict long-standing Departmental policies and federal and state court interpretations, thereby wreaking havoc upon the management of public lands. Because the “baseline requirements of federal law” are being created out of whole cloth by this federal regulation, the issue of consistency of state law would now be raised for the first time. This regulation goes far beyond the “minimal federal statutory requirements, written into R.S. 2477” and creates whole new statutory requirements which are not written into R.S. 2477 and have never been interpreted by the most expansive reading of R.S. 2477 to be a part of that law.

Because the definitions proposed under the regulations defy settled questions of law and long-standing policy of the Department, it is clear that these regulations arise out of an intention to defeat R.S. 2477 rights-of-way to the largest extent possible. This is an impermissible purpose of federal regulatory power, which should be applied even-handedly, with respect for settled precedent.

THE REGULATIONS IMPROPERLY TRANSFER THE BURDEN OF PROOF TO THE HOLDER OF THE RIGHT-OF-WAY

The proposed regulations improperly attempt to shift the burden of proof to a holder of a perfected right-of-way, thus avoiding the burden the Department would normally shoulder to invalidate a perfected property right. The failure of the Department to document or require documentation of valid R.S. 2477 rights-of-way at the time when the documentation was available should not and cannot now be used to impair or invalidate rights of the holders. Likewise, if federal land managers have failed to identify and record activities which occurred during the past 18 years and were not authorized under R.S. 2477, holders of valid rights-of-way should not be required to shoulder the burden of correcting these omissions.

More often than not, these rights-of-way have not been formally documented because they are obvious. Many have become state highways and county roads; they access federal parks. Until now, those acting in good faith have accepted them as common rights-of-way. R.S. 2477 rights-of-way are either existing facilities on the ground or have been established through open and continuous use or actions of state and local government expressly accepting the grant.

The supplementary information points out that federal land managers are required by existing laws to prepare long-term land use plans. These plans, as well as current activities of the Department, are subject to the presumption that any road on the ground that has not been constructed since October 21, 1976, is a valid R.S. 2477 right-of-way. After the repeal of R.S. 2477, federal land managers knew highways could be constructed only after the grant of Title V permits. Facilities that are presently in use without such a permit or other specific documentation are clearly R.S. 2477 rights-of-way, since federal land managers would be presumed to have taken action to implement the law. The Department cannot properly address its prior omissions to take valid existing R.S. 2477 rights-of-way into consideration in its land use planning by the excessive methods proposed in these regulations.

The burdens of these regulations would fall on every state with public lands managed by the Department. Even those states which have had formal requirements under state law for perfection of R.S. 2477 rights-of-way are required to file the claim, including all information demanded, in order to ensure that the Department will recognize the rights-of-way in that state. The information demanded by the regulations must be submitted no matter how clear the prior recognition of the right-of-way. There is no rational basis for this scheme.

Although they apply to every state, the regulations nevertheless impose unequal burdens from one state to another, since those states which enacted laws requiring specific documentation of public highways accepted under R.S. 2477 will have significantly less burden than those whose laws did not impose such requirements. Utah, for example (along with Alaska, California, Colorado, Idaho, Kansas, Nebraska, Nevada, New Mexico, Oregon, Washington, Wyoming and perhaps other public lands states) allowed acquisition of public rights-of-way by use over time. North Dakota, Oklahoma and South Dakota, among others, established highway rights-of-way along section lines. These state laws would be arbitrarily rejected by these regulations, while other state laws which now have the approval of the Department would be honored. The principles of comity forbid such a process.

Some states may not have defined their R.S. 2477 rights-of-way by specific widths. In Utah, for example, the scope of an R.S. 2477 right-of-way includes the right to provide safety for the legitimate users of the road. The rights in Utah are limited by the obligation to avoid unnecessary or undue impacts from the exercise of the rights. Other states may have set specific widths for their R.S. 2477 rights-of-way. As a result, in some cases, Utah law would provide for a narrower right-of-way than another state, or vice versa. These regulations would result in the refusal to recognize any state law that allowed a width greater than the width actually in use for public highway purposes at the latest date a right-of-way was perfected (1976 or earlier). State laws allowing surface improvements and location improvements for safety would also be ignored, unless more restrictive than what was on the ground in 1976 (or earlier).

Additionally, regarding the Department’s request for comments on “whether to require a more specific showing that a right-of-way that once existed, but is no longer used, has not been abandoned,” Utah law provides a formal abandonment procedure. Since state laws govern R.S. 2477, the only proper treatment of the abandonment issue in Utah would be to place a burden on those who desire to defeat the right to show that the abandonment procedure was followed.

THE REGULATIONS ARE NOT NEEDED AND SERVE ONLY TO CREATE CONTROVERSY

The proposed regulations go far beyond the actions necessary to further legitimate interests of the Department in carrying out its land management and other duties. As Executive Order 12866 states, “Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need . . ..” There is not a sufficient need or federal nexus to support the scope of these regulations.

The “uncertainty” on the part of federal land managers is exaggerated and misplaced. The proposal to regulate is misleading when it says that “the language of R.S. 2477 causes uncertainty and potential conflict for Federal land managers” (p. 39216), since the existing administrative and court-made law which interprets the language of the statute is clear. The administrative process in place prior to this Department’s moratorium on R.S. 2477 administrative actions was capable of adequately handling and recognizing valid R.S. 2477 rights-of-way. Recognition of R.S. 2477 (or refusal to recognize) rights-of-way was provided for by a reasonable process, with little legitimate controversy. Local land managers have generally been aware of the existence and use of these access routes. This effective agency action is evidenced by more than 200 valid rights-of-way being recognized in two rural Utah counties, all of which would now be rejected by the proposed regulations. (See, R.S. 2477 inventory documents associated with the Henry Mountain RMP in Utah.) The Department is now rejecting its own prior work, articulating no basis for the rejection.

Likewise, the assertion of potential conflict is unjustified, unless the Department is asserting an inherent conflict between the Department’s duties and the rule of law or the broad array of vested property rights which must be considered in the management of federally owned lands. R.S. 2477 rights have been severed from the public domain, just as have homestead patents and other property rights. Other federal statutory duties imposed on the Department must likewise be carried out subject to valid existing rights. These are actions that the Department routinely carries out in a myriad of activities. The Department has no excuse to abdicate its duties to honor these rights in the exercise of its administrative authority.

The Department suggests that the only proper notice of these rights-of-way which might be given must come with a formal, elaborate process promulgated by these draft regulations. In fact, there can be no question that the Department has had notice of valid existing rights through a whole variety of mechanisms, including actual use which is well-known by local managers, by public records available to those land managers and by numerous other mechanisms. Since land managers who are dealing with the areas where these rights-of-way are located are the ones intended to be benefited by these rules, the appropriate focus of the rules should be on adding to the information they already have, not ignoring it. Documentation already submitted to the Department for administrative purposes should be recognized.

The locations of these rights-of-way are known. They are identified on maps, documents, management plans, rights-of-way plats, and many other sources. Land managers can see them on the ground and observe their use and observe them demarcated on their maps. Requiring holders to file information with additional documentation regarding existing impacts on the ground will not allow land managers to better plan or manage the federal lands. If the land manager has been properly managing the public lands, he has probably used the route or seen it and observed its use by others.

The suggestion that there will be a continual assertion of previously unnoticed or unused rights-of-way is unsupported by the record. The rights which have not received more formal treatment have been established through use, an activity which is visible. In any event, these regulations attack rights-of-way whose existence is “obvious and unquestioned” (p. 39216) as much as, or more than, any rights-of-way which may stretch the limits of interpretation of R.S. 2477. The regulations attack even those R.S. 2477 rights-of-way which have received formal or informal recognition by the Department. It would have been a simple matter to address issues related to unused or “unnoticed” rights-of-way, rather than undertake the wholesale revisiting of all rights-of-way proposed here. This broad sweep fails to meet the stated goal of providing a workable administrative process.

Likewise, requiring filing of clearly recognized rights-of-way, including those recognized by the courts where the Department was a party (or any other case, of which the Department must be deemed to have notice), is arbitrary and capricious in imposing a burden on the holder.

The treatment of R.S. 2477 should be consistent with regard to all federal lands. The failure to provide the purported benefit consistently with the Department of Agriculture belies the intent offered. One set of rules should be developed which affects all lands and will be able to help all interested parties.

Additionally, the proposed regulations would make many roads unsafe. The regulations express no concern whatsoever with the safety of the traveling public, although there is settled law which clarifies that safety is an appropriate concern. If these regulations are finalized, the safety of the public which uses these rights-of-way will be compromised. In some cases, safety will be prevented by the regulations.

THE REGULATIONS FAIL TO COMPLY WITH THE MANDATES OF EXECUTIVE ORDERS AND CONGRESSIONAL ACTS

The regulations contradict executive orders. Executive Order 12630 requires that executive departments identify the takings implications of proposed regulatory actions. The Department has failed to conduct any such analysis or if such analysis was conducted, it was not disclosed to the public. Instead, a cursory one sentence conclusion is provided that the regulations do not pose significant taking implications. The American public and Congress deserve more than this when 128 years of law and policy are being reversed through administrative fiat and where vested property rights are being threatened with invalidation through imposition of new burdens on the holder.

The regulations flaunt the mandate of Executive Order 12866. EO 12866 requires that regulators work for the American people and in harmony with other governing jurisdictions. EO 12866 is violated in countless manners by the all-out assault on vested property rights posed by these regulations.

The Regulatory Flexibility Act, 5 U.S.C. section 601 et seq., requires that economic effects on small communities be analyzed. The Department did not provide any meaningful analysis of these impacts in connection with this proposed action. R.S. 2477 rights-of-way serve rural areas. They link small communities and provide routes to markets or resources over remote lands. It would be difficult to conceive of an issue that had any greater effect on small communities than these regulations. Nevertheless, a mere one sentence conclusion is provided, without any analysis.

These proposed regulations require full review under the National Environmental Policy Act. The environmental assessment conducted for these regulations is entirely inadequate. The impact on the quality of the human environment will be extensive, through loss of access across the federal lands. The cumulative effect of these regulations, in their impact on state and local governments, as well as upon the public which relies upon these access routes for a variety of activities fundamental to the economic, social and cultural fabric of life in the West, would be overwhelming.

Just a few of the massive impacts these regulations would cause include the loss to state, local and federal authorities of well-maintained access for management and protection of the environmental resources which are accessed by R.S. 2477 rights-of-way. If these routes no longer belong to local governments, they will no longer be maintained by them. The federal government would either have to shoulder a significant financial burden which is now spread among local governments throughout the West or lose the access it needs to conduct its duties.

The uncertainties regarding title that these regulations would create have not been analyzed by the Department. The socio-economic effects of such uncertainties would be extremely burdensome and devastating to the West.

An Environmental Impact Study is required prior to the issuance of any final regulations on this subject.

The disclosures given to the Office of Management and Budget have so minimized the true impacts of this regulatory process that they are meaningless. The Department asserts that only 420 “respondents” would claim R.S. 2477 rights-of-way during the two-year period that the process would be available.

In just 10 counties in southern Utah, approximately 9,900 roads have been documented. Since each county is treated as one of the 420 “respondents” in the Department’s submittal to OMB, giving 24 hours to each county, the Department is allocating less that one and a half minutes per road for compiling and filing all of the information outlined in Section 39.6. The Department allocated 8 hours per county for federal review, which sorts out to less than 30 seconds per road for these 10 counties. There can be no question that the Department failed to give any realistic consideration to the true burden of the reporting requirements imposed by these regulations.

The Department’s disclosures to OMB go beyond negligence however, because it is clear the Department knows that its assessment of the reporting burden is insupportable. In its report to Congress, the Department recognized that there are more than 5000 claims in Utah alone. Allocating 24 hours to each of the 29 counties in Utah, and assuming that the 5000 roads cover the entire state, the Department estimates less than eight and a half minutes per road to prepare and file all the materials required to document a claim. This figure, based on information already at the disposal of the Department, is obviously unrealistic.

The Report also recognized that there are more than 450 recognized R.S. 2477 rights-of-way in Oregon, which would have to be reprocessed under the provisions of these regulations. There is no indication of whether the original information filed in Oregon was anywhere near as extensive as that required by the proposed regulations, leaving the burden on Oregon in this instance unclear. However, assuming no more than 450 R.S. 2477 rights-of-way in Oregon, with 36 counties, the Department allocates less than 2 hours for documenting each of these roads. Furthermore, if these numbers were truly reflective of the burdens imposed, it would be clear that the burden imposed on Oregon is substantially less than that imposed on Utah, giving rise to more concerns regarding unequal treatment of the various states by these regulations.

The disclosures to the OMB fail to disclose the true extent of the documentation requirement, leaving out, for example the requirement for “identification of the claim on maps in sufficient detail to allow location on the ground by a competent engineer or surveyor” (Section 39.6(3)) and the substantial documentation required to show construction, public use, vehicular use, access points and land status over time.

The “Supporting Statement for the information Collection Requirements Contained in the 43 CFR Part 39 –REVISED STATUTES 2477 RIGHTS OF WAY” is misleading, at best. The inaccuracies in the supporting statement are numerous. Reference to these comments should reveal many of the problems with the Department’s assertions. However, certain assertions in the “Supporting Statement” cannot go without specific challenge. It is not true that there is “no other source of information available to the authorize [sic] officers that can be used to determine the validity of the R.S. 2477 claim.” Numerous sources of information are available in Departmental records. In fact, respondents would have to go to the Department to obtain some of the information required. The Department has not designed the procedures described “to minimize to the greatest extent possible the burdens for information collection on the States, counties and other local governmental entities.” The information requirement far exceeds any reasonable request, given the established precedent on these rights-of-way.

The Department has arbitrarily identified a category of claims which it calls “reasonable claims,” those for which “the claimant has the information required . . . readily available.” However, given that the Department specifically stated, from 1938 until 1976, that no documentation was required, this distinction defies logic.

Omitting the time necessary to analyze the information and render a decision on the claim from the analysis of the burden on the federal agencies also defies logic. Obviously, the 8 hour figure is completely inadequate and arbitrary. Furthermore, by leaving out these significant steps, which are clearly contemplated by the draft regulations, the annualized cost estimate is meaningless.

The omission of evaluation of claims by private citizens, other non-governmental entities, municipalities and states (which are not included in the 420 estimated) constitutes a significant omission. All of these groups are acknowledged by the draft regulations as having the right, at least potentially, to make a claim. There is no doubt that many R.S. 2477 rights-of-way now belong to states and municipalities.

The assertion that the proposed rule will not require the development or creation of new records is belied by the fact that prior policy has specifically stated that no records or documentation should be submitted to the Department.

The Department’s assertion that claims from Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oklahoma, Oregon, South Dakota, Washington and Wyoming are only a possibility contradicts the express provisions of the rule, which requires that all R.S. 2477 rights-of-way be processed through this regulation. Every one of these states has R.S. 2477 rights-of-way. Every one of these states would, according to the proposed rules, be required to file claims to protect their rights.

The errors and omissions in the information provided by the Department to the OMB necessitate an extensively revised disclosure.

THE REGULATIONS IMPROPERLY TRANSFORM LAWFUL ACTIVITIES INTO TRESPASS

The Department now, for the first time, asserts a power to hold the owners of these rights-of-way liable for trespass for actions which occurred between 1976 and the date these regulations become final. Any action taken beyond the width of the disturbed area on the latest date the lands were unreserved public lands, or October 21, 1976, whichever is earlier, is deemed a trespass under the proposed regulations, even if the action was authorized by state laws which established or allowed the establishment of widths which have always been honored in the past. This assertion of a right to redefine actions which took place in accordance with then-existing laws and regulations exceeds any authority granted by Congress.

Any new surface treatment applied to a right-of-way after the latest date the lands were unreserved public lands, or October 21, 1976, whichever is earlier, is deemed a trespass under the proposed regulations. Based upon the long-standing acquiescence of Congress and the common law of easements, the surface treatment of an R.S. 2477 right-of-way is within the discretion of the holder.

A review of the history of the Act of 1866 should reveal to the Department that one of Congress’ main purposes in passing the Act was to avoid trespass concerns by making passage over public lands lawful.

THE REGULATIONS ARE NOT NEEDED TO PROTECT THE ENVIRONMENT

Rights-of-way validly acquired under R.S. 2477 cannot be directly regulated, although they may be impacted as a result of regulation of the adjacent public lands that authorize federal agencies to prevent unnecessary and undue impacts which would derogate adjacent land values. Right-of-way holders are bound to the extent the statutes governing protection of cultural sites, wetlands, endangered plants and animals, and other environmental protections apply to them. Since holders have those obligations, the assertion that recognition of R.S. 2477 rights-of-way will defeat the protections of current environmental laws is misleading.

The purported assertions of “proponents of unlimited and unregulated access to Federal lands” (p. 39216) can hardly form a legitimate basis for the overreaching scope of the proposed regulations. The protective requirements of current environmental and land use laws cannot be circumvented where they legitimately apply to the management of the federal lands. However, these laws cannot properly form the basis for this attack on pre-existing rights. It is not necessary to void or unduly burden R.S. 2477 rights-of-way to further more recent federal policies, any more than it is appropriate to void other vested rights.

While the Department is entitled to reasonable and appropriate opportunities to be informed concerning proposed actions which have the potential to unduly impact the adjacent public lands over which the Department maintains control, that opportunity does not extend to the right to control and approve each and every maintenance activity conducted by local governments. Where maintenance activities are involved, the Department properly has no advance veto power or opportunity to interfere with the actions of local governments. Where major improvement projects are involved which may impact adjacent Wilderness Study Areas or other specific federal resources, while advance notice may be appropriate, the burden is properly on the Department, or any other party challenging actions properly within the authority of state and local governments, to show that those projects exceed the right-of-way or would otherwise unduly impact specified federal resources. The very determination to directly regulate the use, construction and maintenance of R.S. 2477 rights-of-way constitutes a substitution of the federal manager into the rightful role of the holder, in essence eviscerating the right.

THE REGULATIONS MISREPRESENT ASSOCIATED COSTS

The proposed regulations do not offer a “workable administrative process,” (p. 39216) but rather impose an unduly burdensome system which does not arise from the Department’s legitimate interest in efficiently carrying out its administrative functions. These regulations would impose a substantial administrative burden on the agencies charged under them. This burden primarily focuses on the adjudication process, rather than on legitimate administrative interest in managing the public lands.

If the Department were truly interested in a “workable administrative process,” it would honor its past administrative and contractual recognitions of R.S. 2477 rights-of-way, thus avoiding unnecessary duplication of effort for both the holders and the Department. The only reason to revisit these existing decisions is for the purpose of challenging rights.

Current administrative practice belies the assertion that new, more elaborate procedures would enhance efficiency. For example, approximately 3 1/2 years ago, Garfield County, Utah, submitted information similar to that required by these documents for recognition of its R.S. 2477 rights-of-way on a portion of its roads. To date, the County has not been informed regarding the status of those determinations. To say that this rule will facilitate efficient processing of such claims is contradicted by the evidence of Departmental efficiency acting under a significantly less burdensome regime. If it requires more than 3 years to process approximately 200 claims, a statewide submittal within 2 years will not yield results until well into the next century. The only way such regulations could actually provide efficiency is by a summary or arbitrary denial of such claims, which will adversely impact right holders and the traveling public that relies on these rights-of-way for access across federal public lands. The evidence available to date, coupled with the lack of any deadline imposed upon the federal land managers for processing and issuing determinations on R.S. 2477 “claims,” shows that holders will wait years before their ability to properly manage their rights-of-way is resolved.

The dangers of a process which imposes an affirmative duty on the holder, even where the Department has information, can be seen in the example of the Warm Springs Road in Kane County, Utah. It has been reported that the Department denied recognition of an R.S. 2477 right-of-way based on a 1910 withdrawal, while the federal land managers had in their possession records indicating that the road was in existence prior to 1890 and failed to bring them forth. Instead, the Department, hostile to this right, forced the County to go through an exhaustive, expensive search for documentation.

The two-year time period amplifies the burden on holders. Counties in Utah would have as little as 2.6 hours per road, working full time for two years, to document, compile and submit the information required under the draft regulations. Given the extensive documentation required, this is clearly not feasible. Even if it were, it would place an excessive burden, certainly beyond the legal limits of regulatory authority.

These regulations would force R.S. 2477 holders, and the interested public, into protracted litigation to preserve the legal rights that have been established by the courts prior to these regulations. Also, if the rights are invalidated, a pandora’s box would be opened concerning maintenance of the roads, property values and related liability. For example, if a local government’s right-of-way is invalidated by these regulations, what will be done to accommodate access needs of communities and individuals relying on the right-of-way? Who will maintain invalidated rights-of-way? Is the federal government prepared to maintain the roads? None of these concerns are addressed by the regulations, reflecting the inadequate notice provided the public. Additional effects caused, but not discussed, by the regulations include potential exposure of municipalities and counties to liabilities for funds spent on roads invalidated by the regulations. If state or federal highway monies have been used on roads invalidated by the regulations, a possibility is created that the grantor of the monies would seek reimbursement from the municipalities and counties.

The cost of implementing these regulations would be substantial. The tax burden would expand. The federal bureaucracy would expand. To the extent that vested property rights may be deprived, the cost of paying for the rights-of-way taken by this regulatory action would be great. The Department to disregarded these costs despite Executive Order 12630’s mandate that “[e]xecutive departments and agencies should review their actions carefully to prevent unnecessary takings . . ..” Thus, the burden on the American taxpayer will increase, both in terms of local and federal tax dollars.

The assertion (p. 39217) that the two year deadline will provide holders of rights-of-way with “more security” is patently untrue. This deadline, coupled with the heavy burdens newly imposed by these regulations, would defeat ancient rights which were created many decades ago without documentation, which was not required at the time of their creation.

The assertion that the regulations are needed to reduce present uncertainties that can cloud title to lands turns logic on its head. R.S. 2477 rights-of-way have existed for 128 years. Financial institutions dealing with title to property have accommodated the existing scheme. These regulations would suddenly cast doubt upon the validity of these rights. This would do nothing to reduce uncertainty but would in and of itself unsettle title to every piece of property that utilizes or depends upon an R.S. 2477 right-of-way.

The issue of title problems created by these regulations, in and of itself, illustrates the terrible understatements made by the Department in characterizing the effects of the regulations. For example, the Department represented that the regulations would not have an annual effect on the economy of $100 million or more and that a significant economic effect would not be imposed on a substantial number of small entities. These representations are misleading. The regulations would invalidate access rights, even of major roads, if arbitrary criteria are not met. Denial of access would reduce tourism spending. Loss of access rights would slash property values and handicap communities depending upon the roads. Mortgage values of properties losing access could plummet, rendering them unmarketable on secondary markets. Financial institutions holding the mortgages would see their asset values shrink. This would be a devastating blow to the smaller communities that would lose funding sources for all types of projects. Title insurance would be virtually unobtainable for properties affected by the uncertainty created by this regulation. Without title insurance, loans would not be issued. Thus, construction would cease in these areas.

These are only a few of the effects that would result from elimination of access rights. The trickle down effects would also be substantial, especially in small communities which lack broad risk pools in terms of population and financial resources for allocation and distribution of the effects. Thus, it is readily apparent that cumulative economic impacts could exceed $100 million annually and would significantly affect many small communities across the West. The Department fails to even hint at these potential impacts.

Additionally illustrating the senselessness of these regulations is the fact that BLM currently is working to enhance transportation and access to the public lands under the Internodal Surface Transportation Efficiency Act of 1991 (See “U.S. Bureau of Land Management, Transportation Planning Process and the Land Management Highway System”). Thus, the federal government is going to be paying to get rid of these highways under the regulation while paying to enhance them under ISTEA.

THE REGULATIONS ARE MISLEADING IN OTHER WAYS

The regulations discuss at length the fact that other access rights may be obtained should R.S. 2477 rights be invalidated. Such discussion is irrelevant to the treatment of R.S. 2477 rights-of-way. These are valid existing rights, not new rights. The question must be what, under the law of R.S. 2477, was granted and accepted. Language referring to R.S. 2477 as not the only method of “obtaining access” (p. 39217) only confuses the issue. Likewise, reference to “authority to create . . . highways without regard for the purposes of [other] land management systems” (p. 39218) is misleading by suggesting that holders are attempting to obtain or create new access rights. The public is once again being misinformed by the information being supplied by the Department, thus denying due process in the promulgation of these regulations.

The attempt to assert availability of other mechanisms amplifies the fact that the Department is, by these regulations, proposing to do away with rights which have heretofore been relied upon, and offering the palliative that those who are being deprived of their existing rights shouldn’t worry because they can obtain other access. The public should be informed that other sources of access are entirely within the discretion of the Department and, thus, can be denied. These other access mechanisms are not “rights” in the sense that R.S. 2477 is a right; they do not carry the same rights and privileges as those granted under R.S. 2477. Thus, it is reported that the BLM has granted Title V permits (on existing R.S. 2477 rights-of-way) in Uintah County, while at the same time has refused to do so in Garfield County. Also, under the Alaska native claims settlement act and ANILCA, it is reported that no rights-of-way have ever been granted. At a minimum, the evidence supports the concern that leaving all discretion regarding access to the Department would leave the traveling public at the mercy of arbitrary and capricious decisions by land managers. Since R.S. 2477 rights-of-way, by their very nature, have been established on the basis of need, the rights of access which they represent should not be jeopardized through such a mechanism.

Furthermore, casual use permits prohibit permanent impacts to the ground. Continued use of any access route necessitates such impacts. Existing R.S. 2477 rights-of-way have generally created these impacts. Casual use would not allow grading, graveling, culvert placement, sign repair, surface repair, corrective safety actions or other actions which are necessary to maintain access for the public. These are not realistic substitutes for R.S. 2477, even if the Department had the authority to force such a substitution.

In supplemental materials, the Department asserts that the regulations will not adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities. This assessment sharply contradicts reality. For example, in Sierra Club v. Hodel, the Tenth Circuit Court of Appeals found that a remote sixty-six mile unpaved R.S. 2477 right-of-way hosted the following uses: to drive livestock to market, to facilitate oil exploration, and to allow for various transportation, emergency, mineral, agricultural, economic development, and tourist needs. It could be correctly inferred that invalidation of that right-of-way would likely cause substantial injury to the communities connected by that right-of-way. Multiplied by all such communities across the West, the draconian effects of this regulation become apparent.

Also, comments received in the scoping process which articulated the proper legal basis for R.S. 2477 rights-of-way were ignored in the attempt to rewrite history and defeat these rights. For example, although it was pointed out that the BLM in Utah recognized hundreds of R.S. 2477 rights-of-way explicitly in memoranda of understanding executed with counties, none of these acknowledgments were recognized in the BLM’s report to Congress or in any other current action by the Department. The Department has been highly selective in the information which it chose to make available to Congress and which it now chooses to provide as background to the proposed regulations. That very process of selection precludes even an appearance of fairness in this regulatory effort.

ADEQUATE NOTICE HAS NOT BEEN PROVIDED

The Department has a duty of public disclosure to ensure due process in promulgating these regulations. The failure to adhere to the rulings of the courts listed on the attached bibliography should be fully disclosed prior to finalizing any regulation. By failing to accurately disclose the true impacts of the proposed regulations, including the fact that they will operate to reverse federal court decisions, the Department is failing to honor its due process obligations.

Because the number of people who are aware of the implications of these regulations will remain smaller than if physical closures were taking place, the full implications of these regulations will not be clear to the public until the regulations have been finalized and in effect for some time. As a result, the true significance of the public opposition to the regulations and their effect will not be heard, allowing the Department to continue to minimize the true impacts of the regulations, without a meaningful opportunity for the public to participate.

Due process requires in this case that the Department publish notice for every right-of-way not claimed during the two year period that claims thereto are being invalidated.

The comment period of 105 days is too short under the circumstances. Since the Department has not fully disclosed the significance of its actions and has not fairly represented the legal and historical facts, the public must have the time to independently consider and understand the law of R.S. 2477. The public has not been given a fair opportunity to understand and then comment on the rules. The Department took approximately two years to draft these regulations, starting from a position of some expertise; the public is entitled to at least half that time to develop the necessary understanding to deal with the extensive changes now being proposed.

The Department has specifically requested comments on 21 substantive issues, including issues of law and policy. Each of these areas, in and of itself, could entail substantial time to research, understand and draft comments. The comment period offered is just too short to allow a meaningful response to these specific requests, except from those who are already well-prepared on the law and the facts. If these proposed regulations are honestly intended to elicit public comment from the public at large, more time must be allowed.

Moreover, these rights-of-way belong to states, among others. Since the state legislatures don’t normally meet until the beginning of the year, the deadline for comments should be extended at least through March of 1995. R.S. 2477 rights-of-way have been in existence for over 128 years. The Department should not move in such a hasty fashion in its effort to restrict and defeat these rights.

COMMENTS ON PROPOSED RULEMAKING

59 Fed.Reg. 39228 (August 1, 1994)

The Department should not develop regulations or other administrative procedures to manage rights-of-way validly acquired pursuant to R.S. 2477. The Department has no authority to manage R.S. 2477 rights-of-way. Any attempt to do so would federalize state and locally owned rights-of-way, and constitute a deprivation of property. All treatment of the Department’s obligations to manage the servient estate, as they may impact R.S. 2477 rights-of-way, should be done through local manuals developed in cooperation with the holders of the rights-of-way.