Testimony: S. 468, Historic Route Preservation Act

We, the undersigned, are providing written testimony regarding S. 468, the Historic Route Preservation Act. We are groups that represent millions of Americans who are committed to conservation and recreation on our federal public lands. We also have a keen understanding of Revised Statute (RS) 2477 and the history of this law. We appreciate your full consideration of the following testimony.

Revised Statute 2477, commonly referred to as “RS 2477,” is a provision in an 1866 mining law intended to facilitate the transportation of goods and people across federal public lands and promote the orderly settlement of the West. To do this, RS 2477 granted rights-of-ways for “the construction of highways across public lands not otherwise reserved for public uses.”

Importantly, the Federal Land Policy and Management Act of 1976 (FLPMA) repealed the RS 2477 provision and established an updated process for determining reasonable access to federal lands, with public participation in the decision-making process and long-term, sustainable management goals for these public areas. This process, embedded in “Title V” of FLPMA, was the remedy to replace the ad hoc and sometimes haphazardly applied RS 2477 regime. It provides for the grant of rights-of-way to applicants using a more clearly-defined, sensible process that reflects a more modern approach to resource management.

Today, more than 40 years later, RS 2477 has been resurrected to promote unrestricted development and road construction that often harms our federal public lands. While there are still valid claims of highways that were constructed to help settle the West, the law is being abused to allow for anyone to claim a property right over public lands with little or no evidence that such a right-of-way existed and was used by the public prior to 1976 (or the date that the land was reserved, whichever was earlier). Further, while the courts have jurisdiction to review the validity and scope of R.S. 2477 claims,, S. 468 provides an administrative process that will facilitate fraudulent claims that conflict with both the original intent of RS 2477 and the intent behind its repeal in 1976.

The construction of new highways and roads through some of our most sensitive, pristine public lands would cause water pollution, fragmentation of wildlife habitat, loss of biological diversity, soil erosion and degradation of wilderness values. The following are just a few specific examples of some of America’s most prized places that could be impacted by this legislation:

• Alaska: Over 900,000 miles within our public lands in Alaska are at stake, including areas within Denali National Park, Wrangell-St. Elias National Park and Katmai National Park, some of the world’s most pristine wildlands.
• Utah: State and rural counties in Utah claim at least 15,000 RS 2477 rights-of-way, including jeep trails, cow paths, streambeds and long-abandoned mining tracks.
• California: Local counties in California have alleged over thousands of RS 2477 claims in the Mojave National Preserve and Death Valley National Park.

S. 468 would extend the current 12-year statute of limitations under the Quiet Title Act by giving an expanded category of claimants a full 25 -years to apply for R.S. 2477 rights. And then, in what would amount to a giveaway of federal property, the bill would give the Interior Department just 120 days to make a decision or the R.S. 2477 claim would be deemed valid. The claimants are not even required to produce documents showing evidence to support the right-of-way claim in question. Instead, they can submit maps and stories – even hearsay –from people living in the area willing to corroborate their claim. Additionally, there would be no way for the public to refute a claimed right-of-way or defend our public lands, owned by all Americans, as there currently exists in a court of law.

Unintended consequences are inherent in such a process, including impacts to recreationists, ranchers, private land owners and others that make this bill a dangerous giveaway to anyone who claims they have a right-of-way on public lands.

S. 468 will lead to more conflict of users of public lands, including hunters, anglers, mountain bikers, hikers, and other recreationists not less. For the reasons stated above, we strongly oppose S. 468 as introduced and welcome the opportunity to discuss this further and other potential solutions.