THE SAGEBRUSH REBELLION CONTINUES
Consider this extraordinary fact. The federal government owns about 65% of all land in the Western United States. The federal government owns 84.5% of Nevada; 69.1% of Alaska; 57.4% of Utah; 53.1% of Oregon; 50.2% of Idaho; 48.1% of Arizona; 45.3% of California; 42.3% of Wyoming; 41.8% of New Mexico; and 36.6% of Colorado. For over 100 years, those lands have been traversed by ranchers, miners, and settlers, creating rights of way recognized by federal law. For the last four decades, however, the Department of Interior, the Bureau of Land Management, and the U.S. Forest Service have been working feverishly to encumber use of those rights of way to the great detriment of local governments and citizens.
As ranchers, miners, and settlers ventured West in the late 18th and 19th centuries, they necessarily crossed federal lands. To prevent the government from suing them for trespass, Congress enacted the Mining Act of 1866, which was codified in Revised Statute 2477. RS 2477 provides that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
For 110 years, until its repeal in 1976, RS 2477 gave protection for county roads, even well trodden dirt paths, that crossed federal lands. RS 2477 retroactively recognized, as protected, all rights of way that had been created over federal lands as of its passage and all that would be created thereafter.
As federal environmental policy became more entrenched, supplanting state sovereignty following adoption of the Wilderness Act of 1964, numerous conflicts arose between the Department of Interior, the Bureau of Land Management, and the U.S. Park Service, on the one hand, and local governments and citizens, on the other.
In 1976, Congress enacted the Federal Land Policy and Management Act, which ended grants of RS 2477 rights of way over federal land. Instead, an administrative process was devised to favor Department of Interior restriction on rights of way. Under that new system, the Secretary of the Interior, not local residents and governments, would have exclusive authority to grant rights of way for various purposes, including roads, trails, highways, railroads, canals, tunnels, tramways, airways, livestock driveways, or other means of transportation over federal lands. By federalizing authority to recognize rights of way, Congress sealed the fate of future grants, ceding it to the environmental interests that dominated, then as now, federal land management policy. Rights of way granted under FLPMA have been severely restricted: limited in duration, fixed in geographic scope, and subject to prior analysis and environmental proscriptions.
Although FLPMA repealed RS 2477, the repeal did not act retroactively. RS 2477 rights of way granted before enactment of FLPMA in 1976 were grandfathered, meaning that they were protected from any change in legal status. Despite that legal protection, BLM, Forest Service, and EPA aggressive regulation has forced closure or severe restrictions on a number of grandfathered RS 2477 rights of way.
In defiance of federal road closures, local politicians have mounted bulldozers and have plowed open historic county roads that the Park Service and BLM have closed. That civil war continues to this day.
The conflict between federal and state authorities has been intense at times with federal authorities threatening legal action, arrest, and use of armed officers against local officials to prevent roads from being re-opened and with local authorities reciprocating by threatening local legal action, arrest, and use of county sheriffs against federal officials to ensure that roads are re-opened.
On March 20, 2013, the state of Alaska filed suit against the United States. Alaska asserts ownership of six RS 2477 rights of way in the Chicken, Alaska area. Those six roads stretch over 65 miles and cover 400 square miles. All of the rights of way are in present use by miners, hunters, trappers, recreationalists, and subsistence users. Upon filing suit, Alaska Attorney General Michael C. Geraghty said, “We will not stand by while the federal government restricts access to state-owned rights of way. . . In our large state with limited connectivity between communities and resources, these rights of way are of vital importance.”
A significant number of RS 2477 rights of way exist in Alaska’s historic mining area of the Fortymile Region near Chicken, Alaska. Many of these rights of way were created in 1874 when gold was discovered there. For decades, the BLM has tried to coerce and cajole Alaskan counties to abandon the historic roads, but the counties refuse to budge.
BLM has tried to impose significant restrictions on the rights of way, including demands for huge sums for environmental assessments and permits as conditions precedent to use of the roads; demands for bonds to be posted before use of any trails; erection of solid gates to block entry into the roads; demands for advance notice before any use of a road takes place; and requirements that road travel be limited to only a few trips annually.
The Alaskan suit is one of a series of similar actions brought by states and counties against the federal government throughout the West. In the Summer of 2012, Utah filed 21 lawsuits against the federal government in federal court, including over 27,000 pages of complaints, demanding protection from federal restrictions affecting 12,000 RS 2477 rights of way in that state.
Other RS 2477 suits are planned, pending, or have recently been resolved in California, Wyoming, Colorado, Arizona, Nevada, New Mexico, Washington, and Oregon. The Sagebrush Rebellion has continued unabated for over three decades.
Among those considered heroes of the Sagebrush Rebellion is the late Nye County, Nevada Commissioner Dick Carver. Carver died in 2003 at the age of 58 following complications of a stroke. He established a precedent followed by many counties in asserting their rights to keep county roads open against federal demands for closure.
A cattleman since childhood who ranched and farmed family property in the Smoky Valley of Nevada, Carver was known for his signature white cowboy hat and Constitution in his shirt pocket. On October 23, 1995, his photograph appeared on the cover of Time Magazine. The cover bore the caption, “Don’t Tread on Me,” and the subtitle, “An Inside Look at the West’s Growing Rebellion.”
Carver gained national prominence when he petitioned the Forest Service to reopen a former stagecoach trail known as the Jefferson Canyon Road that linked Carver’s Big Smoky Valley property to Wayne Hage’s Monitor Valley property. The Forest Service refused to open the road. Relying on RS 2477, Carver ordered the Forest Service to stand down, but it would not. That led to a near armed conflict when Carver decided to honor a Nye County Commission order to open the road on Independence Day in defiance of federal authorities.
On July 4, 1994, Carver mounted a Caterpillar bulldozer and, with a U.S. Park Service agent running backwards in front of the bulldozer carrying a sign that read “Unauthorized Action,” Carver plowed open the Jefferson Canyon Road across Toiyabe National Forest property.
With his Constitution in hand, Carver bulldozed open the entire road. Behind him followed local residents waiving their guns, some 200 in number.
The struggle to protect rights of way over federal lands in the West is a vital resuscitation of federalism in a system so bent on transforming the states and localities into mere functionaries of the federal government that the simple assertion of rights of way to historic roads involves Herculean legal battles that rage on for years and cost millions of dollars.
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Every effort should be made to roll back federal authority and to protect counties in their reliance on historic rights of way. Police, safety, and commerce hinge on free movement in areas that would otherwise be landlocked or encumbered by surrounding federal property. If the Senate is transformed so that both the House and the Senate can secure passage of legislation to reduce federal government size and scope, new efforts should be initiated to transfer ownership of federal lands to states and private hands. Indeed, an auction of much federal land to private parties could restore the vitality of property rights while simultaneously brining in revenue to help reduce the national debt.
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