Guest editorial: Recapture Canyon — Who’s to blame?
September 22, 2015
Who’s to blame for the fiasco involving San Juan County Commissioner Phil Lyman, the BLM and Recapture Canyon? Phil Lyman? The BLM? SUWA (the Southern Utah Wilderness Alliance)? Those militia whackos?
The correct answer is "none of the above."
This Recapture Canyon mess, which no doubt has cost Utah’s and the nation’s taxpayers upwards of a million dollars so far, is simply an offshoot of the old RS 2477 debacle which has cost us all many millions over the past 40 years and is 100 percent the fault of Congress.
In 1980 Alaska had just seen Congress pass the Alaska National Interest Lands Conservation Act against the state’s wishes, creating some 100+ million acres of new National Parks, National Preserves and National Wildlife Refuges (for reference, Utah totals about 54 million acres). Alaska was very interested in preserving access across the new federal conservation units and relied on RS 2477, an old federal law regarding rights-of-way over federal lands, to claim those rights-of-ways. I was the Deputy Director for Minerals in the Alaska Department of Natural Resources at the time and was on the front lines, helping defend the access rights of Alaska’s mining industry across these lands.
Here’s a quick summary of RS 2477, condensed from Wikipedia:
According to Wikipedia, Revised Statute 2477 was enacted by Congress in 1866 to encourage the settlement of the western United States by the development of a system of highways. Its entire text is one sentence: "The right-of-way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted."
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It granted to individuals, counties and states a right-of-way across open federal land when a trail or highway was built no license or permit needed.
But Congress repealed RS 2477 in 1976, but in the process vested all existing valid rights-of-way. And in doing so Congress set up all sorts of conflicts between wilderness advocates, development interests and local and federal government agencies. RS 2477 made sense in 1866 rights-of-way were needed to encourage the development of our country’s western resources. Repealing RS 2477 made sense in 1976 the government needed authority to permit all new roads across open federal lands. But when Congress failed to deal with existing RS 2477 rights-of-way in 1976 by not providing a mechanism for sustaining most while establishing a means of rescinding some, it failed its duty to the country.
Some RS 2477 conflicts do get negotiated and resolved, but all too often the matter ends up in court and a judge needs to make the determination.
Orrin Hatch has been in the U.S. Senate since 1977. We can’t blame him for the shortcomings of FLPMA, but we can certainly ask him why he hasn’t tried to fix the RS 2477 problem when this issue is so critical to and controversial in his home state. Jim Hansen, former Representative from Ogden, served many, many terms and chaired the House Natural Resources Committee for a term or two. But this issue apparently didn’t get before his committee. Rob Bishop, the current Representative from Ogden (and Park City), is chair of that committee today. Will he bring it up? I think we can lay a little blame on every senator and representative we’ve sent to Washington over the past 40 years for not working to get this sorted out. This potato is apparently too hot for any of them to touch.
Our congressional representatives seem to have no problems with criticizing so-called "activist judges" who end up making new law in their interpretations of statutes. But what is a judge to do when Congress refuses to give clear guidance? The RS 2477 situation is a mess and the responsibility to clean it up should lie with Congress, not with the courts.
All it would take is a little bit of reason and compromise
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