Crowdog
01-08-2005, 08:23 AM
Speakout: Restoring access to public 'highways'
By Scott Weiser, Special to the News
December 20, 2004
The photo of Udi Lazimy standing on a public highway behind a Forest Service gate and "Road Closed" sign on Page 6A of the Nov. 16 Rocky Mountain News perfectly illustrates the mendacity of the Clinton-era "roadless rule."
Activists like Lazimy endlessly chant the "roadless" mantra in hopes that repeating a lie often enough will give it the patina of truth. However, the truth is that the 43 million-plus acres of public lands illegally closed by former Forest Service Chief Mike Dombeck are anything but roadless. Most of them in fact contain vast networks of roads that have been in use by the public for as much as 100 years.
How can the Forest Service claim they are "roadless" when they actually have roads on them? Through semantic obfuscation, bald-faced lies and usurpation of congressional authority, that's how. The Forest Service simply denied that a road is a road, coined a new term for roads they didn't like ("travelways") and declared the lands "roadless."
In a process much like denying the existence of ducks despite all the raucous quacking going on, this semantic deception serves to define the quintessential historic public highways of this nation, such as the Oregon Trail, as "travelways." This obfuscation results in specious claims that huge expanses of public lands networked by roads and factually accessible by vehicle for more than a century are magically "roadless."
By ignoring "primitive roads" entirely, and by calling a road a "travelway," in spite of its actual use as a road over a long period of time by the public, the Forest Service misclassifed millions of acres as "roadless" during the 1960s Roadless Area Review and Evaluation (RARE I) and the do-over RARE II in the late 1970s. Congress, tired of the shenanigans, shut down a RARE III review in the mid-'80s, but Dombeck imperiously decided to add some 43 million mostly roaded acres to the "roadless" list anyway in 1999, in defiance of federal law. That illegality is why the "roadless rule" is being challenged.
Which brings us to Revised Statute 2477, a federal law enacted in 1866. It says "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Short, sweet and self-actuating. If it is used by the public as a highway, it's a highway, and the law doesn't care how the highway was created (dogsled routes and foot trails are acceptable), only that the public used it for travel prior to the law's 1976 repeal.
So why, all of a sudden, after more than 130 years in relative obscurity, did RS 2477 become the rallying cry of public lands access advocates and the bane of anti-access activists?
Blame Clinton and Dombeck, it's their fault. Dombeck said that he "temporarily suspended road construction and reconstruction in unroaded areas." This raises the question of how one can "reconstruct" a road in an "unroaded" area. In a 2001 speech at Duke University, Dombeck said, "The roadless rule does not close a single road." Tell that to, among others, the residents of Jarbidge, Nev., where a county road used by Jarbidge residents for more than 50 years was obliterated by Forest Supervisor Gloria Flora because Flora wanted to create a de facto addition to the Jarbidge Wilderness. In a 2004 analysis, the Congressional Research Service says the rule provides that "unneeded roads would be decommissioned and the roadbeds restored." It's difficult to see how this does not equate to "road closing."
Problem is that only Congress can close an RS 2477 road.
So, when Clinton and Dombeck usurped congressional authority and decided to illegally close tens of thousands of miles of RS 2477-protected roads, public lands users rebelled. They did their homework, and thanks in large part to the Internet, public lands access defenders found that they had a potent legal argument, so they understandably decided to exercise their considerable legal muscle to restore their illegally restricted right of access. Note that this doesn't have anything at all to do with building new roads as Lazimy and his cohorts would have us believe; that's currently tightly controlled by the National Environmental Protection Act. (NEPA) This debate is only about restoring access to pre-existing historic public routes.
When confronted by a 110-year- old federal law that protects the right of public travel on public highways on public lands, anti-access advocates studiously ignore the law's 1976 repeal, and deny that pre-existing rights of way remain legally valid and enforceable. But the lesson here is that that the rule of law protects the historic right of citizens to access their public lands at least as much as it protects the lands from abuse of that right of access.
Scott Weiser is a Boulder resident.
By Scott Weiser, Special to the News
December 20, 2004
The photo of Udi Lazimy standing on a public highway behind a Forest Service gate and "Road Closed" sign on Page 6A of the Nov. 16 Rocky Mountain News perfectly illustrates the mendacity of the Clinton-era "roadless rule."
Activists like Lazimy endlessly chant the "roadless" mantra in hopes that repeating a lie often enough will give it the patina of truth. However, the truth is that the 43 million-plus acres of public lands illegally closed by former Forest Service Chief Mike Dombeck are anything but roadless. Most of them in fact contain vast networks of roads that have been in use by the public for as much as 100 years.
How can the Forest Service claim they are "roadless" when they actually have roads on them? Through semantic obfuscation, bald-faced lies and usurpation of congressional authority, that's how. The Forest Service simply denied that a road is a road, coined a new term for roads they didn't like ("travelways") and declared the lands "roadless."
In a process much like denying the existence of ducks despite all the raucous quacking going on, this semantic deception serves to define the quintessential historic public highways of this nation, such as the Oregon Trail, as "travelways." This obfuscation results in specious claims that huge expanses of public lands networked by roads and factually accessible by vehicle for more than a century are magically "roadless."
By ignoring "primitive roads" entirely, and by calling a road a "travelway," in spite of its actual use as a road over a long period of time by the public, the Forest Service misclassifed millions of acres as "roadless" during the 1960s Roadless Area Review and Evaluation (RARE I) and the do-over RARE II in the late 1970s. Congress, tired of the shenanigans, shut down a RARE III review in the mid-'80s, but Dombeck imperiously decided to add some 43 million mostly roaded acres to the "roadless" list anyway in 1999, in defiance of federal law. That illegality is why the "roadless rule" is being challenged.
Which brings us to Revised Statute 2477, a federal law enacted in 1866. It says "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Short, sweet and self-actuating. If it is used by the public as a highway, it's a highway, and the law doesn't care how the highway was created (dogsled routes and foot trails are acceptable), only that the public used it for travel prior to the law's 1976 repeal.
So why, all of a sudden, after more than 130 years in relative obscurity, did RS 2477 become the rallying cry of public lands access advocates and the bane of anti-access activists?
Blame Clinton and Dombeck, it's their fault. Dombeck said that he "temporarily suspended road construction and reconstruction in unroaded areas." This raises the question of how one can "reconstruct" a road in an "unroaded" area. In a 2001 speech at Duke University, Dombeck said, "The roadless rule does not close a single road." Tell that to, among others, the residents of Jarbidge, Nev., where a county road used by Jarbidge residents for more than 50 years was obliterated by Forest Supervisor Gloria Flora because Flora wanted to create a de facto addition to the Jarbidge Wilderness. In a 2004 analysis, the Congressional Research Service says the rule provides that "unneeded roads would be decommissioned and the roadbeds restored." It's difficult to see how this does not equate to "road closing."
Problem is that only Congress can close an RS 2477 road.
So, when Clinton and Dombeck usurped congressional authority and decided to illegally close tens of thousands of miles of RS 2477-protected roads, public lands users rebelled. They did their homework, and thanks in large part to the Internet, public lands access defenders found that they had a potent legal argument, so they understandably decided to exercise their considerable legal muscle to restore their illegally restricted right of access. Note that this doesn't have anything at all to do with building new roads as Lazimy and his cohorts would have us believe; that's currently tightly controlled by the National Environmental Protection Act. (NEPA) This debate is only about restoring access to pre-existing historic public routes.
When confronted by a 110-year- old federal law that protects the right of public travel on public highways on public lands, anti-access advocates studiously ignore the law's 1976 repeal, and deny that pre-existing rights of way remain legally valid and enforceable. But the lesson here is that that the rule of law protects the historic right of citizens to access their public lands at least as much as it protects the lands from abuse of that right of access.
Scott Weiser is a Boulder resident.