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Recent Surge in 'Ghost Roads' Litigation Threatens National Parks and Other Federally Protected Lands
In 2012, state and local challenges to various federally protected wild lands reached an all-time high, thanks to Revised Statute 2477 (R.S. 2477), an obscure provision of the Mining Act that allows state and local governments to lay claim to ghost roads on federal land. Why pay attention to litigation over ghost roads? Because these "roads," some of which do not exist and most of which do not even resemble hiking trails, let alone faint two-track jeep trails, crisscross some of our nation's most treasured national preserves -- Canyonlands National Park, Arches National Park, Zion National Park, Dinosaur National Monument, Capitol Reef National Park, Death Valley National Park, and Glen Canyon National Recreation Area. Active use of these claimed roads would threaten cultural sites such as Hovenweep National Monument, one of the only preserved links to the ancient Anasazi civilization in the American southwest. In brief, R.S. 2477 claims may impact millions of acres of federal public lands across Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Washington, and Wyoming -- states that contain many priceless natural and cultural resources.
Utah is leading the R.S. 2477 charge. In 2012, the state legislature enacted a statute authorizing the use of taxpayer money to claim roughly 25,000 ghost roads on federal land, despite public statements that at least 23,000 of these claims have never been constructed or maintained. In 2012, the state filed 26 quiet title actions based on R.S. 2477 claims in federal district court. The legal fees for one quiet title action involving one road alone has reached $1 million, so the extrapolated cost of litigating all 25,000 claims could easily reach $25 billion. Given that some of these routes may never be improved or used, the state's litigious fervor raises questions about its motives, as it's unlikely that Utah is spending millions of dollars on 26 current federal lawsuits litigating road claims just to take a principled stand in the federalism debate. More likely, it is because once a court validates the claims, the state can open them to dirt bikes, jeeps, other off-road vehicles, and perhaps to oil and gas exploration and other extractive industries.
Unfortunately for many existing and proposed federal reserves in Utah and elsewhere, the legal threshold to establish an R.S. 2477 claim is minimal. As the 10th Circuit has noted, the provision itself is "short, sweet, and enigmatic," stating that "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Congress passed R.S. 2477 as part of a series of acts aimed at disposing of vast amounts of federal lands during an era in which the federal government legislated extensively to encourage settlement and development of public lands in the western United States. Thus, the burden on any party seeking a right-of-way was, and remains, minimal. The statute contains no requirement to submit any proof of ownership or application, nor any corollary obligation to send proof of title to the grantee.
The 10th Circuit has held that federal district courts have exclusive jurisdiction to adjudicate R.S. 2477 claims. The current jurisprudential threshold requires claimants to demonstrate any "acts ... sufficient to manifest an intent to accept the congressional offer," which are defined by state law. Road use is considered to be an "act" sufficient to meet this threshold. Thus, state and local governments can prevail in quiet title actions against the federal government if they can show that someone used their claimed routes any time prior to 1976, when the Federal Land Policy and Management Act (FLPMA) repealed R.S. 2477, except for "valid existing claims." Many R.S. 2477 claims exist on maps or in memory only. They are often pioneer trails that connected old mining claims or ghost towns, planned (but nonexistent) seismic lines, cow paths, or access points to water sources that have long ago dried up. There is no requirement in the statute that the alleged road connect to any other road, causing many environmentalists and scholars to refer to these as "roads to nowhere."
R.S. 2477 claims pose a threat to existing and potential national reserves alike because once a court validates an R.S. 2477 claim, the titleholder can bring in bulldozers, widen the road to allow for modern vehicle travel, and pave it. As for potential reserves, like wilderness study areas, a validated R.S. 2477 claim may preclude permanent wilderness designation because roads cannot bisect a Wilderness Area. Finally, once validated, these roads literally pave the way for development.
Other western states are likely watching Utah's land grab, waiting to see what the federal courts will do with these 26 claims. Several states, including Alaska, have earmarked funds for the study of "potential" R.S. 2477 roads, and they will likely increase funding if the Utah lawsuits succeed. States like Nevada, the birthplace of the original Sagebrush Rebellion, are also ready and waiting to jump on the R.S. 2477 bandwagon if the federal courts validate even a small percentage of Utah's claims.
Currently, the federal judiciary in Utah is faced with a landslide of litigation that will set a precedent for all western states. The 26 pending cases filed by the State of Utah threaten to establish state roads in every national park or reserve in the state of Utah except Bryce Canyon National Park. Those cases represent but a small fraction of the potential number of claims in the state of Utah alone. If the federal district court validates these claims, other western states will likely jump on the R.S. 2477 bandwagon and file claims that will threaten the environmental integrity of many more national parks, wilderness areas, wilderness study areas, national monuments, and other federal reserves.
Hillary Hoffmann is a professor at the Vermont Law School.
Sara Imperiale is a student attending the Vermont Law School.