| Place a Classified | Subscribe today | July 10, 2009 |
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Preserving rights of way
POCATELLO — A statewide group working to keep public rights of way open, claims the roadways were established for public use. But a local environmental group say expanding access will accelerate environmental damage on public land.
Ted Ransom, of Idaho Falls, said county commissions are responsible for road management in Idaho and elected officials often drop the ball when it comes to access to public land. Ransom, a director for Save Our Access Right-of-ways, said the group is currently working with the Legislature to force counties to get road maps up to date. “Bannock County is better than some, but they’re still not up to date,” he said.
Ransom said federal agencies are often reluctant to give jurisdiction to counties and problems arise when new owners cut off access to adjacent public lands. But SOAR President Craig Shuler said if a roadway was in use prior to the U.S. Forest Service being established in 1946, it can’t be closed from public use.
The law hinges on a 1866 decision enacted when Idaho was still part of the Oregon Territory. The law was intended to protect prospectors and miners from encroachment by homesteaders.
In 1877 the act was revised and in 1938 the same law was rectified into U.S. code. RS2477 was repealed in 1976 when the Federal Land Policy and Management Act was put in place and 2477 rights of way in place on or before the Oct. 21, 1976, rule were preserved. “It cut off any new access being granted on public domain, but it did grandfather prior rights of way,” Shuler said.
But SOAR’s 145 members said that out- of-state owners often close access without knowing the law and if the right of way is not contested, it stays closed. Bannock County Commissioner Lin Whitworth said the county’s elected officials should be the first stop with questions about rights of way to public lands.
Public lands include lands designated for other uses such as national forest, wildlife refuges, homesteads and lands granted to the state, or exchanged for private land. But he acknowledged it’s sometimes hard to get commissioners to act.
Shuler said there’s strength in numbers and SOAR works to collect evidence and meet with commissioners. Evidence used to prove access existed prior to the 1976 cutoff includes old maps, historical accounts and family genealogy.
“Especially if it’s dated,” Shuler said. Marv Hoyt, Idaho Director for the Greater Yellowstone Coalition, said in some cases logging roads constructed in the 1960s have been claimed as RS2477 roads.
“In most cases the courts ruled against the county,” he said. “It’s a waste of public funds.” Hoyt said the burden of proof is on the county. A Utah court ruled that counties must maintain roads in order for them to be listed as RS2477 rights of way and he noted a moratorium put on the issue by Congress in the 1990s, which stopped counties from recognizing the rights of way. The rights of way could have been a trail once used by American Indians or built to access a mining claim. Over the years the government transferred land to private owners, grants to the railroads, the states and homesteaders and in 1946, the Bureau of Land Management took over management of all federal lands in the West. Director Dahl Zohner said he got involved with SOAR when he saw road closures to many public land approaching. Zohner and Ransom, both retired Forest Service workers, said if commissions are unable to resolve the closure, the county may be forced to file suit regarding the closure. Boundary County sued the federal government over the closure of Boundary Creek Road. The county must prove that the road, which was built in 1894 as a mine-to-market road for the Continental Mine, using commission minutes, proof of mail delivery and maps. Hoyt said expanding motorized travel on public lands will negatively impact water quality and wildlife habitat on public lands. Shuler said while state law applies, Congress bypassed the executive branch and granted the rights of way to the people — and Idaho gives county commissions the authority to recognize them. “It’s just tough to get the counties to do their job,” he said. By Debbie Bryce - dbryce@journalnet.com
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